Allow me to start by saying that I am not a lawyer and had never heard the phrase 'Colour of Right' until it was used in a speech by Mary-Lou from Ipperwash during her speech at the March for Freedom. Although she never defined the term it has since popped up in various documents I have received over the past few weeks.

One such document was submitted to the Ipperwash Inquiry by the Attorney General of Ontario. In laymens' terms I have come to understand the phrase 'Colour of Right' means that if someone believes he is not subject to the law then he is not guilty of breaking that law - more on this in a moment. This is very important because over the past 10 years various Natives have used this argument in court to say they are not subject to the Criminal Code of Canada and thus cannot be guilty of breaking the law.

The Government states, 'If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence committed because there is colour of right.'

From what I have read I can think of one good example of how this may apply in real life. Let's say that you were born into a family that owned a large farm and ever since you were a child your father took you around your property to check out the fence line - repairing any damage you found and putting up new fencing as needed. As an adult you continue the same process and then one day you find a small hut on your property and decide to remove it because it is on your land. The police are called and it is determined that the hut is in fact on your neighbour's land and he set it up. For all your life you believed it was your land and had maintained the fence line. In my understanding 'Colour of Right' would say you are not guilty of a crime since you always believed you have legal right to the land and thus removing the hut was within your right.

You may see how Native protesters could take advantage of such an legal clause during land claim protests. Natives had argued that since they owned the land they have the right to protect their property, the right to remove squatters, the right to seize any property found on their land and the right to apprehend any trespassers.

In short they have argued they are not guilty of any criminal offense during land claim occupations because they have rights to the land.

What I find interesting is that while the Ontario Government has done nothing to end the Native Crime Spree in Caledonia over the last 9 months, thus allowing the Natives to believe they have the right to DCE and to protect DCE, the Attorney General has been arguing at the Ipperwash Inquiry that Natives are subject to the Criminal Code.

According to McGuinty's Government, criminal acts committed during land claim occupations are to be charged, arrested and convicted of any criminal offenses that they commit. To date the courts have agreed with the McGuinty Government because of some fundamental reasons as stated by the Government:

1. The accused must be mistaken about the state of a private law, not a moral right;
2. That law, if it existed, would provide a legal justification or excuse;
3. The mistaken belief must be honestly held.

Government states, 'In cases arising from occupations or blockades of where the accused were charged with mischief for occupying what they thought were aboriginal lands, the Courts have focused on the issues of whether there was a moral as opposed to legal right, and the accused’s “honest belief”.'

Various judges have already ruled on such cases. Here are a few statements about such rulings:

Judge rules, “As noble and honourable his [Native protester] motives might be, they are really irrevelant in our considerations pertaining to "colour of right"... Moral convictions though deeply and honestly felt, cannot transform illegal actions into legal ones; only the "rule of law" must prevail.”

The Government states, "The test for the presence of an honest belief is subjective, but there must be an air of reality to the claim before the defence is put to the jury."

It is important to understand that just because someone believes they have rights doesn't mean that they do have certain rights. Native Protesters may believe they can occupy land and protect that land from others, but that doesn't mean the courts would agree. For 'Colour of Right' to be a defense against criminal charges one belief must be based on reality and not subjective personal beliefs.

Judge rules, "It is clear from the evidence that the accused was involved in a protest. Furthermore, even using a subjective test, while he felt he and his people owned the land it is clear he also knew that by fences, signs, a barricade, etc., that he was not authorized or permitted to go inside the fence and to do so would likely mean he was committing a breach of the law. I do not feel the accused honestly believed he was not doing something unlawful when he went onto the base……

If the acts of the accused amounted to a defence in this case this would basically mean that if one believes in a cause, no matter what surrounding circumstances exist, illegal means can be used to promote that cause. There are obviously lawful methods to reacquire property that has been improperly possessed including civil proceedings….

Certainly no one can breach the criminal law even to protest a civil wrong committed against them. Only legal means can be used to protest such acts."

2) The fact that it was the Ontario Attorney General that presented evidence at the Ipperwash Inquiry means that the Government does understand this point but failed to enforce the Criminal Code during illegal Native Occupations of land they claim was theirs. McGuinty has made an art of not enforcing the law and has helped Native Protesters continue their illegal occupation of land.

3) Clearly deeded property, fences, subdivision layout are evidence that any common sense person would understand to mean that someone else is in ownership of the land you claim is yours. Thus 'Colour of Right' is not a legal defense to any criminal action to take back land you believe is yours - Natives take note of this.

4) Since there is no legal right for Natives to occupy land they believe is theirs, all police forces and all levels of government need to end the common practice of siding with Natives (protecting Native protesters) during land claim occupations.

We live in a democracy where 'Rule of Law' is the cornerstone of our whole system.