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Kichesipirini Assert Need for Legal Empowerment

January 26, 2010

Kichesipirini Assert Need for Legal Empowerment

Open Letter Regarding Land Disputes and Legal Empowerment Presentation

We are an Indigenous Peoples of Canada with a documented historical record well capable of meeting the requirements of a fact-finding process as is determined necessary for the purpose of reconciling sovereignty assertions made by the "Crown". However, because of systemic gaps regarding Indigenous issues, we have long been denied equitable opportunity to address our outstanding land claim disputes, unable to rely on the domestic policy structures of the existing Canadian State.

I would like to thank the panelists for this relevant and timely discussion as it pertains directly to the numerous issues that we as an Indigenous Peoples have been attempting to resolve, but according to the existing avenues, have absolutely no effective recourse. We are in dire need of legal empowerment.

Of particular interests to us are those rights associated with Independent Land Title and Rights Registration, as we, as part of the Algonquin Nation, have never legally ceded or surrendered any title or associated jurisdiction.

As a traditional Indigenous Peoples in North America we are severely disadvantaged since reliance on any of the domestic policy currently available automatically acquiesces our potentially over-riding Aboriginal and international rights and places us in an assumed position of compliance with unresolved British Crown assertions, and is then further assumed to be our agreement to the continuing encroachments associated with adverse possession. Our history directly challenges the assertions of the existing “Crown of Canada” void of Indigenous Peoples appropriate recognition.

Further complicating our situation is the lack of legal information regarding our potential rights from an international and customary legal context. As a result of such disadvantage we are unable to effectively defend our rights and challenge the numerous State funded demographic manipulations that constantly complicate and erode our efforts. We are left, even in a “modern” contemporary situation, from a legal and justice perspective, still in a situation of duress to goods.

Either we accept the supports and resources available to us from the State and its associated administered Aboriginal organizations and, thus, enter compliance, or we disappear as State generated Aboriginal communities replace the remnants of the genuine First Nations like ourselves still attempting to resist any pretense of manufactured reconciliation.

We, as the Original Jurisdiction, if without effective remedy, are left completely disadvantaged and in desperate need of external and independent legal empowerment.

Under the current administration, a prospective analysis of our perception of the situation, being the need to reconcile title and jurisdiction free of conflict of interest, there is no independent judiciary, as all are sworn, by the Canadian Oath of Allegiance to protect the interests of the British Crown, which claims without our consultation or opportunity to present alternative evidence, to have evolved into the “Crown of Canada”.

The existing legal systems currently available within unceded Algonquin territory have been unilaterally imposed upon us. Because we are not “federally recognized”, yet are the bona fide jurisdiction, we are not consulted or given fair warning or notice about activities that may affect our rights. We do not have any material resources to respond to encroachments. We cannot access a fair hearing or independent counsel that has not sworn to protect the interests of the current Crown, of which we are challenging.

All aspects of the current executive, administration and legislature pose a systemic conflict of interests for us, as an Indigenous Peoples, in our attempts to present the facts and protect, preserve and perfect our inherent identity, ensuring that any process of reconciliation we might enter is not corrupted because of our lack of exercise of free, prior and informed consent.

Without complete clarification regarding the identity and character of the asserting "Crown" these circumstances for us erode the two important principles of natural justice, which are two fundamental principles widely considered legally necessary to a fair trial or valid decision in a legal system. These are:

1. nemo iudex in causa sua: "nobody shall be a judge in his own cause", invalidating any judgment where there is a bias or conflict of interest or duty; and
2. audi alteram partem: "hear the other side", giving at least a fair opportunity to present one's case.

Under other similar situations in the interests of justice, the Rule of Law and the preservation of due process such circumstances involving such blatant conflicting loyalties would at least require recusal and third party adjunction.

Since the "Crown" and its agents, which includes the civil and judicial bodies of the Canadian State, are also considered to be acting as fiduciary in relationship to such Indigenous Peoples as ourselves, which we interpret as being in conformity with the principles of international law and the relations between sovereign nations, we would then expect that there should be open disclosure of the conflict of interests, open recusal, and an open invitation to assist in the development of appropriate institutions best qualified to examine the issues without risk of corruption or compromise.

We have repeatedly requested the State and international community to act in good faith regarding the ongoing situation regarding the Algonquin land claim and jurisdictional dispute. We are willing to comply with the highest ethical, legal and good governance standards inclusive of our participation. We believe that such a process could have significant positive implications in other similar circumstances.

We must avoid the trap of interpreting disadvantaged or poor strictly from a material paradigm and recognize that Indigenous Peoples such as ourselves, although perhaps often enjoying access as individuals to material goods and security within administering States, we experience a collective and intergenerational depravation to equitable justice. Hence the need for demographic manipulations and false identity constructs.

As particular collectives and distinct polities holding genuine and examinable histories, traditions and customary legal traditions of our own, we have been denied adequate or effective resources to ensure our distinct and specific security and preservation, and these systemic “traps” and “gaps” that risk the continued integrity of specific peoples should be considered of international interest and of international legal concern.

Even reliance on particulars inherent within the monetary and economic systems become abrogation traps for us as well.

In recognizing that legal empowerment attempts to ensure that the use of law directly benefits and involves the disadvantaged we would hope to draw your attention to our particular situation. It must be noted that the monies generated and distributed for domestic services and negotiations within unceded Algonquin territory are being derived from the unresolved intergenerational dispossession of the vast majority of Algonquin beneficiaries.

This dispossession is not solely about fiscal losses. We understand our losses to also involve the denial of our obligations to protect a specific eco-regional territory. There are numerous non-capital economic losses that we collectively experience.

So in regards to our particular situation aspects of legal empowerment that we are particularly interested in are:

 Independent fiscal resources held in appropriate trust.
 Adequate and appropriate participatory fact-finding process.
 Rights registration.
 Rights enforcement.
 Participatory governance.
 Multi-disciplinary and inclusive educational and participatory mobilization process.

We continually assert that the examination of our rights and preservation of our integrity is of no threat to the existing Canadian collective. Kichespirini polity has been an inclusive and diverse polity since European contact. Legal empowerment for the Kichesipirini, based on our historical record and customary legal participation, which is constitutionally protected in principle, is actually complementary to Canadian nationality, serves the interests of justice, and is reasonable. The existing situation of omissions generates systemic discrimination.

We must continue to assert that reliance on the existing systems alone cannot meet the principle of complementarity of law since reliance on the existing judicial systems without reform cannot meet the requirements of due process and are therefore “ineffective” or “unavailable”.

We believe then that our particular situation offers a unique opportunity to those institutions represented by the panelists and their expressed commitment to social justice issues. We would appreciate any assistance or direction.

Sincerely,

Paula LaPierre
Principal Sachem
Kichesipirini Algonquin First Nation
Kichi Sibi Anishnabe
Still Sovereign
Canada

(This correspondence was in response to a discussion panel held at The United Nations University Office at the UN, New York (UNU-ONY) in cooperation with the International Development Law Organization (IDLO), entitled "A Place to Call Our Own: Land Disputes and the Rights of the Poor".
Panelists were from Research, Policy, and Strategic Initiatives, International Development Law Organization,
IDLO Legal Empowerment Working Paper Series, and Legal Empowerment, United Nations Development Programme)


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Sovereignty

The Haudenosaunee assertions that they cannot surrender sovereignty is the same with all genuine national sovereignty. A nation must protect, preserve and perfect itself, and it the responsibility of other nations to assist.

"Colonial rule" has absolutely no legal basis. The only justification that the British Crown can claim would be that of protectorate, which would be of temporary nature.

However, if a nation should forget its own history and lose its identity, and then by peaceful agreement comply with a protectorate Sovereign then adverse possession will have been acquired by the protectorate; which of course is the process being attempted.

What is unfortunate is that without adequate and appropriate education of the facts most people in Canada, not being able to exercise free, prior and informed consent,are not aware of the magnitude of the situation and the inherent potential for serious violations of human rights within an unmitigated globalization arena if the situation is not effectively remedied.

But without the much needed institutional changes at the UN acceptance into the "club" as it currently exists would just equate another layer of entrapment.

What is most needed is the appropriate institutional development, reflective of the UN Declaration on the Rights of Indigenous Peoples and the development of clear, concise, repeatable procedures for legitimately identifying and re-establishing the Indigenous Peoples and their institutions in contemporary forms that would actually strengthen the human rights protections of all the people dependent on those territories, in ways that are complimentary and cooperative, but without compromising responsible land title systems.

advancing a sovereign nation's status & clarity

A process of adverse possession leading to possession --of indigenous territories?--by a foreign nation advancing colonial interests seems like another way of describing-explaining a process of genocide.

It isn't clear which [necessary] institutional changes to the UN you refer to to reason that joining that 'club', which would be meaning to be a recognized sovereign nation within that 'body~club~' would equal another layer of entrapment?

Am curious whether the panel in NY had the participation of the American Indian Law Alliance(AILA), an important group of indigenous~'Native American' lawyers, who work in official consultative status with ECOSOC and are an excellent organization on the legal knowledge base concerned with this issue, and also directly involved with the drafting process of UNDRIP. Possibly a good connection to gain pertinent and perhaps innovative legal perspectives from?
Also, it might be worth considering inviting the UN Special Rapporteur on Indigenous Peoples Issues to meet with you so that that UN officer can bring a specific report before the UN?

Also, still more on the theme of advancing lawful procedures to address the Crown conflict of claimed jurisdictional interests within the UN forum, going back to another Haudenosaunee example I am sure you will be familiar with, that of Deskahe having (attempted to have)brought the case of the Six Nations before the UN in Geneva, nearly one century ago. The UN process required, and I'm supposing that it therefore still would, that for this to happen you must have the sponsorship of three (3) UN members. Deskaheh had the sponsorship of Japan & I think Turkey and one other UN member but what happened is that Britain, through diplomatic channels, was able to foil his plan to make his case-complaint before the main assembly, to have an official audience, which was his intent in going there. This, the Algonquin nation's situation, is probably another appropriate moment in history to do this! Yes, this would be very powerful. Japan, and along with the ASEAN group of nations' joint engagements to advance UNDRIP throughout their region of the world, would be an impartial body to investigate for this purpose.

Having re-read your introductory open letter again, I do have a sense from the statements presented as questions of there being some awkwardness when asserting sovereignty on an equal nation to nation basis, as differentiated from asserting legal claims within a Canadian legal context, important because the two positions may not be legally reconcilable, depending on how definitive the Algonquin nation is about the 'degree' of sovereignty you believe to be rightfully yours to uphold as law.

Starting point legal obligations

Would like to comment on the foundational terms of asserting sovereignty, in that in relation to your nation the Crown has zero sovereign jurisdiction anywhere within Algonquin territories, collectively & inclusively, that is the legal fact that they have been trying to 'assert' their way around since they've been coming here.
With this knowledge, which is of irrefutable legal certainty in interpretations of international law I can assure you, it follows that for the UN to be able to claim obeisance to its internationally agreed instruments for recognizing members (in the UN 'club', as one could describe it, perhaps?) it must be ready, willing and able and to demonstrate an open door policy of inviting your nation as a full standing =voting member, while, as one examines the UN's stated concerns regarding the societal ill-effects of colonialism, the Crown, in relation to your nation's case being in the guise of 'Canada' should have been shown the club door already.

That is to clearly frame the legal context, as it actually is in practice.

Now, more significantly from my perspective is the societal legal framework which indigenous nations hold-possess-retain-assert by our inherent collective obligations within the sovereign domain of our laws, as our indigenous governing laws, to maintain the health & social well being of our distinct societies in perpetuity-- yes this may differ amongst different indigenous nations and I must clarify that what I am about to lay out has to do with the laws inherited by all Haudenosaunee and so therefore may be somewhat or even quite different for your nations?-- That we can never surrender any of our legal sovereignty unto any other entity, it is clearly against our law, as we understand our obligations both spiritually as well as materially to honor our ancestors and to ensure the inheritance which we owe to OUR future generations. This makes it fully-absolutely and in every conceivable way a clear impossibility that 'colonial rule' has ever or ever could have any legal validity within our respective territories.

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