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Saskatchewan Chiefs Court Action

Beth Cuthand

SASKATCHEWAN INDIAN      JANUARY 1982      v12 n01 p29  
Saskatchewan Chiefs have chosen to go ahead with their court challenge in Britain. An emergency session of the Constitution Commission was held in Saskatoon January 30 and 31. Chiefs present and Constitution Commission members mandated by the Chiefs Assembly to take action on the Constitution voted unanimously to go ahead with their legal case in Britain regardless of the costs.

Though there is a very slim chance of winning, the assembly felt it was necessary to go on record in the British courts. It was felt that if we pulled out now, the bad precedents set in the Alberta case would go down in history as a narrow interpretation of the Indian opposition to patriation.

Lawyer Delia Opekokew said our London lawyers were enthusiastic about the case since they heard the Alberta ruling. They felt we could present a stronger case. Now that the British governments arguments and rulings are a matter of record, we could argue around them. She said the London lawyers have at last agreed to argue from an Indian point of view, and have consented to use oral evidence to prove Indian understanding and practise of Treaty rights obligations.

In her report to the Commission Anita Gordon, Director of Treaty Rights and Research for the FSI said:

"It is vital to show strong evidence that Treaties were with the Crown of the UK as opposed to the Canadian Government to avoid being struck out or disbarred. In drafting the statement of Claim every possible type of evidence to support the Treaty argument needs to be included, i.e. documents, bills, correspondence, etc. But the lawyers will rely heavily on the oral evidence given by Indians as to their understanding of Treaty agreements. The Statement of Claim will have to be filed in court no later than Friday, February 5th, so this information must be provided to the London lawyers immediately."

She explained how the evidence could be obtained:

Delia Opekokew said it will be necessary to prove that the treaties are international treaties. The IAA case has done some damage because IAA lawyer said we were "simple societies" we will have to lead evidence to support our contention that we the Cree, Saulteaux, Dakota, Assiniboine, and Dene continue "to exist as vigorous, political, social, economic and cultural institutions". The onus is now on us to prove our ancestors understood that the treaties were treaties made between nations. Oral evidence by elders saying things like, "I remember my father told me when they signed the treaties..." This kind of testimony tracing the Indian understanding of the nature of the treaties will be good. It will humanize the case and we need that in Britain."

The Commission then went into a detailed examination of the summary of the case based on various bodies of law and different categories of evidence.

There is no guarantee that the case will be heard in Britain. However, the statement of claim will be filed February 5. Should the lawyers manage to argue convincingly, the court may allow the case to be heard.

The London lawyers declined to give an estimation of our chances until they could assess the evidence.

The case could be in court as early as mid February. In any case the Chiefs caution that the legal case is only one avenue the FSI is taking to ensure Treaty rights are recognized in the Constitution.

They agree that Indian people should not put all their faith in the British system of Justice.