The American Association of Jurists (AAJ), a non-governmental organisation with consultative status at the United Nations Social and Economic Council (ECOSOC), condemns the use of excessive force by the Canadian Border Services Agency against two Indigenous grandmothers.
On June 14th, 2008, two outspoken Kanion'ke:haka (Mohawk) women were attacked by Canadian Border Service Agency (CBSA) guards at Akwesasne. Kahentenetha Horn aged 68 and Katenies (Janet Davis) aged 43 are grandmothers and the principal editors and managers of MNN (Mohawk Nation News, www.mohawknationnews.com ) a popular internet site known for its critique of Canada’s treatment of Indigenous peoples.
MNN was forced to stop normal operations after Kahentinetha was assaulted and suffered a trauma induced heart attack at the Akwesasne port of entry. The incident began when violent procedures were used to arrest Katenies on questionable warrants arising from a charge in 2003 when she was accused of running that same border after she thought she had been waved through. Katenies questioned the jurisdiction of the Canadian court over her and her people, and s ince then has faced a procedural morass. It is important to note that both the 2003 and the June 14th, 2008 incident occurred inside Akwesasne territory.
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Katenies lives in Akwesasne, a Mohawk settlement established in the 1740’s straddling the 1000 Islands section of the St. Lawrence River, an area occupied by her ancestors since time immemorial. Both Canada and the United States routinely violate the territorial integrity of Akwesasne. Because of the borders imposed on them, the people of Akwesasne are forced to deal with the jurisdictional claims of bothUnited States, as well as the sub jurisdictions claimed by Ontario, Quebec and New York State. As a result, Katenies must travel from Akwesasne (Quebec), where she lives, via Akwesasne (N.Y.) and through Canadian border controls to visit her daughter and grandchildren who live a few minutes drive away in Akwesasne (Ontario). Katenies’ daughter, Teiohontateh, had to abort a child because she was forced by CBSA to pass under a dangerous x-ray machine for trucks, when pregnant.
In the 1920’s the Haudenosaunee Six Nations Confederacy (including Kanion'ke:haka/Mohawks) petitioned the League of Nations to protect their right to jurisdiction over their own land and people, but this issue has always been denied a hearing both within Canada and internationally.
They never consented to become part of Canada or the United States or to the border later drawn through their community by the 1794 Jay Treaty between Great Britain and the United States. The Jay Treaty guaranteed the right of Indigenous peoples to travel and trade between Canada and the United States.
As a successor state to Britain, Canadian law includes the well established doctrine of the “Honour of the Crown” reflected in such instruments as the Royal Proclamation, 1763. Thisimposes fiduciary obligations on the state to protect Indigenous peoples. Section 35 of Canada’s Constitution Act, 1982 also recognizes and affirms “existing aboriginal and treaty rights”.
Border charges against Akwesasne residents have escalated since 2001, when Canada’s Supreme Court decided in Mitchell v. the Minister of National Revenue that the people of Akwesasne do not have a right to trade freely within their community across the Canada-U.S. border.
Canadian courts have consistently refused to prove their jurisdiction when Indigenous people question their authority. In December, 2007 Lester Howse, aged 64, was hospitalized because he was brutalized by three Brantford Ontario policemen after he was expelled from a courtroom where he had questioned the jurisdiction of a Justice of the Peace to try a Six Nations man. He raised arguments similar to those advanced by Katenies.
These incidents suggest a pattern of violence to intimidate Indigenous people and avoid legal consideration of the jurisdictional issues they raise.
The wilful repression of Indigenous cultures and the use of violence against elders to prevent formal consideration of serious legal issues will only heighten the conflict and hamper resolution. Such use of force violates Canada’s obligations under the United Nations Charter and other international Human Rights instruments including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Canada ’s shameful refusal to sign the United Nations Declaration on the Rights of Indigenous People reflects its refusal to recognize and respect the Indigenous Nations, contrary to the recommendations of both the United Nations and Canada’s own 1996 Royal Commission on Aboriginal Peoples.
FOR THIS REASON, THE AAJ CALLS ON THE CANADIAN GOVERNMENT:
1. To uphold its commitments under international law to:
i) refrain from using force to resolve legal issues; and
ii) to respect the human rights guaranteed by the international treaties and accords that it has signed.
2. To uphold the Honour of the Crown and its obligations as a successor state to Britain by respecting:
i) the terms of the Jay Treaty;
ii) its common law obligation to protect Indigenous peoples; and
iii) s.35 of its Constitution Act, 1982.
IN PARTICULAR, THE AAJ CALLS ON THE CANADIAN GOVERNMENT
3. To conduct a full and immediate investigation into the assaults by the Canadian Border Services Agents on Kahentinetha, Katenies and Teiohontateh and by the Brantford police on Lester Howse.
4. To ensure that human rights are respected at all border posts and in all courts so that police, security and military forces like the Canadian Border Control Agency and the Brantford police stop conducting life-threatening procedures that risk the arbitrary deprivation of the right to life.
5. To ensure that Canadian courts address jurisdictional issues and respect appeal procedures before trying substantive allegations.
6. To negotiate with the people of Akwesasne to re-establish an alternative to current border controls that interfere with normal rights to privacy, home, family and community life.
7. To ensure the safety and physical integrity of all Indigenous people, including elders, grandmothers, women and children, born and yet to come.
In keeping with the principles and purposes of the United Nations, we hope that future negotiations will lead to a just and lasting resolution of all issues that arise concerning Canada’s relations with the Indigenous nations.
American Association of Jurists – Canada
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