| Subject: Remarks of National Chief Matthew Coon Come-Standing Committee on Justice and Human Rights |
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Date Posted: 12:38:05 12/03/01 Mon
Remarks of National Chief Matthew Coon Come
Assembly of First Nations
Standing Committee on Justice and Human Rights
Bill C-36, Anti-Terrorism Act
Ottawa - November 1, 2001
Mr. Chair, Honourable Members of Parliament, I appreciate this opportunity to express the serious concerns of First Nations peoples regarding the government's proposed Anti-Terrorism legislation.
First, I want to convey to you the sense of seriousness that First Nations peoples hold the September 11, 2001 events. This is our homeland. Our Elders refer to it as mother earth, and when anyone harms our mother in whatever form, be it through the destruction of the environment or by the taking of human life that was put here, it hurts us. We feel for the families who senselessly lost their loved ones, for we too have known loss. We have been here for many, many generations and too have known terror in our homelands, but never on the scale recently experienced. Skilled Mohawk Ironworkers helped build those buildings which were destroyed, and, in fact, were the first on the scene to help with rescue attempts. First Nations citizens feel the same fear as other Canadians. Our people travel on both sides of the border because our homelands and our relatives are on both sides. Our ancestors are buried on both sides of the border and we have many friends in the United States. With this unspeakable act the world has changed; our world has changed, and we are prepared to do our part to return to the sense of security that we formerly had.
First Nations peoples believe in peaceful relations, harmony and non-violence. We support the efforts of states, like Canada, to address the scourge of terrorism. First Nations people have always responded quickly to humanitarian crises in Canada and elsewhere. In the two World Wars, our people voluntarily enlisted and gave up their lives in disproportionate numbers.
The AFN has reviewed the Anti-Terrorism Bill to the extent possible, with limited resources, in the short time that has been available. In this presentation, I will emphasize only the core concerns raised by the Bill, as well as the amendments to the Bill that are necessary to address these core concerns.
In order to understand First Nations concerns with respect to the Anti-Terrorism legislation, it is essential to have a picture of our overall context - which unfortunately is one of continuing systemic discrimination and disproportionate adverse impact at every stage of the Canadian justice system.
Across Canada there are untold numbers of stories of unlawful arrest, police violence, abuse, shootings and false convictions, including such recent cases as the native men in Saskatchewan who were abandoned by police in the middle of winter on the outskirts of Saskatoon to die of exposure. The crime for which they received this death sentence was that they were native.
Our people are over-represented in the prison populations, a matter about which even the Solicitor General of Canada has stated "all Canadians should be deeply disturbed". Government study after study has noted the indicators of the systemic discrimination suffered by First Nations peoples in the justice system, including that we are far more likely to be denied bail, be unrepresented, spend more time in pre-trial detention than non-aboriginal people, and plead guilty simply because our people are intimidated and alienated.[1]
Within this context, the submissions of a number of organizations on the Anti-Terrorism Bill, including the Canadian Bar Association, have expressed specific concern about the legislation, including its potential impacts on First Nations peoples. The AFN supports these expressions of concern, particularly with respect to the definition of "terrorist activity" and the proposed expanded powers of police and the security establishment. We know too well the potential scope for misapplication, misuse and even abuse that is inherent in these expanded powers. We are deeply concerned that First Nations people will inevitably suffer such misuse and abuse disproportionately.
In 1995 a handful of unarmed native men, women and children asserted their peoples' land rights to an ancestral burial ground by occupying a corner of Ipperwash Provincial Park in Ontario. They had notified the Park Superintendent of their intentions, and occupied the park only after it had closed for the season. Despite these facts, a huge and heavily-armed tactical police response was deployed to quell this lawful and non-violent protest. It now appears that the use of lethal force was ordered at the highest levels of the Ontario provincial government. The result was the police shooting of three native protestors, one of whom, Dudley George, was killed.
The federal and provincial governments justified this lethal use of force by immediately painting the events at Ipperwash as a terrorist-like incident. Hours after the shooting, the Ontario police informed the public that the demonstrators had been armed, fired on the police, and the police had returned fire. Weeks later in late 1995, the federal government reported to the United Nations Special Rapporteur on Extra-Judicial, Summary and Arbitrary Executions that armed natives in the park had fired on the police and the police had merely returned fire.
Six years later, and even after a conclusive judicial finding that the native demonstrators were unarmed, the governments of Ontario and Canada has not corrected the record, and refuses to remove the slander of insurgency that it cast on First Nations dissent in Canada.
Ipperwash stands as just one case study among many which demonstrates the risk posed to First Nations of legislation which gives heightened powers to police, narrows the civil rights of those involved in legitimate dissent and protest activities and limits or suspends the civil rights of those perceived by the government to be involved in "terrorist" activities.
I myself have in the past been termed a "guerrilla" by governments because of my people's use of the judicial process. The repeated characterization of First Nations peoples as insurgents in the past justifies our grave concerns about the risk of Anti-Terrorism legislation harming our most basic rights. It points to the need to define "terrorist activity" in a much more precise and careful way, so as to ensure that the net of the expanded provisions is never too broadly cast. Although Canada is one of the more democratic and free countries in the world, its governments and law enforcement institutions are fallible, and as far as many of our people are concerned, sometimes mal-intentioned at high levels.
As you well know, First Nations peoples across this country suffer conditions of mass poverty and unemployment, ill health, and epidemic rates of suicide. As noted by the United Nations Committee on Economic Social and Cultural Rights in its most recent review of Canada's human rights record: "gross disparities [exist] between Aboriginal people and the majority of Canadians". The causes of these conditions - our landlessness and dispossession, in contravention of our Aboriginal, treaty and other human rights - go significantly un-remedied.
First Nations people continue to be, as stated by the Royal Commission on Aboriginal Peoples, on the margins of Canadian society and "either excluded or positioned at the back of the line." In 1999 the United Nations Human Rights Committee confirmed that the situation of Aboriginal peoples in Canada is "the most pressing human rights issue facing Canadians".
In this context of continuing social and political exclusion and socio-economic marginalization, First Nations demonstration, protest, and even civil disobedience, often remain the only effective means available for us to defend and assert our Aboriginal and treaty rights. The Royal Commission on Aboriginal Peoples is an example of a direct and peaceful result of one such protest.
Yet many times, when we exercise these rights, such as at Burnt Church or Ipperwash, the law is often used to punish or prevent us. One technique of intimidation and quelling of dissent by First Nations peoples is the practice of systematically charging native peoples engaged in exercising their rights with criminal or regulatory offenses. This technique of charging entire groups of natives asserting their rights has not stopped, even though time and again the great majority of natives accused in such demonstration contexts are acquitted of all charges. This was the story at Ipperwash and at Oka/Kahnesetake, where prosecution took on the appearance of persecution.
Justice Minister Anne McLellan has stated that native assertions of Aboriginal and treaty rights are not intended to be captured by the broad definition of terrorist activity in the Bill. We are not reassured. The actions of government in the past lead us to fear that the strictest force of law is inevitably applied to First Nations protest and dissent, including - we fear - the misapplication of the Anti-Terrorism legislation in the future.
If the legislation is not intended to cover assertions of Aboriginal and treaty rights by First Nations peoples, then it should say so explicitly. There is no reason not to make this legislative intent absolutely clear. The AFN, therefore, calls for this Bill to be amended so that the assertion by Aboriginal peoples of their Aboriginal and treaty rights is specifically excluded from the definition of terrorist activity. The AFN further joins the 37,000 lawyers and judges of the Canadian Bar Association in calling for the deletion of the entire subparagraph (E) in the definition of terrorism, so that civil disobedience -- unlawful but legitimate dissent -- First Nations people and others cannot be defined as terrorism.
Our people continue to face unlawful state and other encroachment on our lands, removal of our resources, and deprival of our own means of subsistence. We must have access to broad means of expression and protest, as a matter of our cultural survival, without fear of being labeled or detained as terrorists.
The AFN also supports the calls for a three year sunset clause in the legislation. The U.S. Patriot Bill contains such a clause. The Canadian Bar Association and the Senate Committee have stated that this is imperative. We agree. The curtailments on liberties in the Anti-Terrorism Bill (and the potential for abuse of the powers it contains) must expire automatically in three years time and be re-enacted only if there is substantial evidence before Parliament to justify renewal of the legislation as an effective anti-terrorism measure, as well as evidence that it has been used with the utmost restraint. We believe that it is in the interest of all that the law should expire automatically.
First Nations historical and modern experience with the Canadian justice system lead us to believe that this sunset clause is essential. A study of the Osgoode Society for Canadian Legal History has found that in the 19th century, disproportionate execution, purportedly mandated by law, was used by the Crown against our people as a means of colonial subjugation. In the 20th century, and now, we face disproportionate imprisonment and selective prosecution. Professor Peter Russell of the University of Toronto has concluded that [quote] "the application of the rule of law, an essential element in the 'liberal treatment' of Indians, can serve as a blunt instrument for the dispossession and subjugation of Aboriginal people."
We can only fear the misapplication of this anti-terrorism law to us. We are not alone in raising this fear. The Canadian Bar Association and others across the country have noted that the proposed legislation would appear to inhibit, if not prohibit, demonstrations and other forms of expression by First Nations peoples asserting their rights.
In sum, as a result of these reasoned and, I believe, justified concerns about the risk of misuse of the Anti-Terrorism legislation as proposed, the AFN urges that:
1. The definition of "terrorist activity" must include a paragraph which specifically excludes from the definition of terrorism assertions by Aboriginal peoples of Aboriginal and Treaty rights. I have a suggested text for your consideration;
2. Subparagraph (b)(ii)(E) be removed from the definition of terrorism;
3. The legislation must contain a "sunset clause", thus requiring a comprehensive Parliamentary and societal assessment of the legislation in not more than three years, before it can be re-enacted.
We also wish to be further consulted and fully involved in the process of further development of this legislation.
Miigwetch. Thank you. Merci.
[1] Manitoba Aboriginal Justice Inquiry (1991), Royal Commission on Aboriginal Peoples (1996), Canadian Criminal Justice Association (2000).
[Non-text portions of this message have been removed]
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