For natives, a legal free-for-all

National Post

Published: Saturday, June 02, 2007

As Canada heads into what many aboriginal leaders have promised will be the "summer of the blockade," the final report of the Ipperwash inquiry sends the wrong messages at the wrong time. By absolving native protesters of any responsibility in the 1995 death of Dudley George; and by recommending that the protesting band be given the provincial park they were illegally occupying, the report by commissioner Sidney Linden essentially tells natives across Canada that they are not responsible for their own actions. Nothing they do will be punished. Indeed, if they protest long enough and loud enough, they will be rewarded with land and money, even if their illegal acts end in violence.

There was once a standard in Canadian law whereby anyone who commenced an illegal act that resulted in injury or death was at least partly to blame. They bore some responsibility, even if they did not wield the bludgeon or pull the trigger. But, at least for aboriginal Canadians, this concept no longer applies. Justice Linden's report only reinforces the shroud of impunity that guilty urban white Canadians have supplied aboriginal protestors.

Justice Linden faulted Ontario Provincial Police for believing in September, 1995, that protesters at Ipperwash were armed, when he could find no evidence they were. He also castigated police for seeking to roust demonstrators from the park at night. And he pointed a finger at Ontario's then-Conservative government for being too impatient to have aboriginals removed. But hindsight is 20/20.

In the months and years before the incident that led to Mr. George's death, there had been several violent blockades at places such as Oka, Que., and Gustafsen Lake, B.C. In such cases, natives had been heavily armed, including with machine guns. Officers had been killed. Any on-site commander who did not instruct his officers to be ready for native weapons would have been derelict in his duty.

Also, sending special police units into dangerous situations at night is standard procedure, since it typically catches protesters or other criminals off guard and minimizes injuries and casualties. Justice Linden is off-base when he claims that the timing of the OPP decision increased the threat of violence.

None of this absolves police of all wrongdoing. Perhaps there were better actions they could have taken. But Canadian police are not generally known to be trigger-happy cowboys. And being the force on the ground in a difficult situation, the OPP should be given the benefit of the doubt.

This report simply adds to the fecklessness of officialdom in the face of the recent rail blockade near Belleville, Ont., and the illegal occupation of a housing development at Caledonia, Ont. (At the latter site this week, Ottawa offered squatters $125-million to end a land claim it originally claimed had no legal merit.)

Looking the other way at aboriginal crime is just part of a wider problem. Ottawa has also moved in recent years to establish a race-based fishery on the West Coast that gives aboriginal fishermen preferential quotas. In its Delgamuukw decision a decade ago, the Supreme Court could find no real evidence that natives still held title over wide swathes of B.C. To breathe life into the aboriginal land claims, the justices invented the notion that aboriginal "oral history" should have the same standing in court as scholarly research and land-office records. The result has been an evidentiary free-forall: In the 1999 Marshall decision establishing native commercial hunting and fishing rights out of season, the judges were forced to admit they had gotten the historical evidence on which they based their decision all wrong, but they refused nonetheless to reverse their judgment. Increasingly, the message to Canada's natives is: one lax legal standard for you, one strict legal standard for everyone else.

For more than a decade now, aboriginal lawlessness has been met by official docility. If more blockades and protests erupt this month, it will be in large measure due to the willingness of official interlocutors such as the Ipperwash commissioner to reward such behaviour.