|First Nations International Court
In April 1996 I was invited to travel to Turtle Island, otherwise known by the colonising powers as the joint land mass of South America, Canada and the United States, to sit as a judge on the First Nations International Court of Justice (FNICJ).
The FNICJ was established by a resolution of the Chiefs of Ontario and the Assembly of First Nations. These two bodies collectively represent 640 First Nations across Canada. The FNICJ held its first sitting in Ottawa, during April 1996. The judges and other court officials were all members of indigenous nations. The court was primarily directed by a panel of Elders.
The court was created because Indigenous Peoples of Canada had lost faith in both the domestic and international communities ability and lack of goodwill to bring about a just resolution to the continuing dispossession and genocide of the Indigenous Peoples of Canada.
The establishment of the FNICJ is an affirmation of self-determination and the inherent right to create and control our own indigenous institutions. The FNICJ represents the first step in establishing an on-going mechanism for jurisdictional dispute resolution. The court assumes sovereignty and speaks in the language of First Nations law - the laws of creation. The court holds central to its way of being a respect for the elders and their knowledge of law.
The FNICJ was created in a response to the cries of indigenous peoples for justice and the urgent need for a place where the stories of dispossession and genocide would be heard. The FNICJ is free from the conflicts of interest which frequently arise when First Nations come before the courts of the coloniser. Similarly conflict arises when First Nations have sought a hearing before the United Nations, finding that the process is both slow and reluctant to address the claims of First Nations. International remedies are further complicated by protocols which exclude First Nations applications, because unlike member states to the General Assembly we do not have independent and equal access to existing international mechanisms. For example the International Court of Justice, requires a resolution of endorsement of a member state of the General Assembly before the First Nation can gain access to the court. It is unlikely that the Australian government will agree to a First Nation within Australia taking an action in genocide before the International Court of Justice.
The following indictment was brought before the FNICJ preliminary hearing,
the counts are as follows:
Her Majesty the Queen in the Right of Canada did, contrary to the original laws and customs of the First Nations, the principles of international law and its treaty obligations, unlawfully interfere in the internal affairs of the sovereign First Nations;
Her Majesty the Queen in the Right of Canada did, contrary to the original laws and customs of the First Nations, the principles of international law and its treaty obligations, unlawfully interfere with the free and unfettered exercise of jurisdiction by the First Nations through the forceful application and enforcement of Canadian laws within First Nation territories and did unlawfully impose Canadian laws on First Nation citizens without the consent of the First Nation;
Her Majesty the Queen in the Right of Canada did, contrary to the principles of international law and its obligations under treaty, unlawfully seize resources and property through the imposition of laws that exceed its jurisdiction, including the unauthorised collection of taxes and other charges and levies from First Nations and First Nation citizens.
Judge Dr. Moana Jackson in his judgement said; 'the law that was brought here by the coloniser was built upon ideas and doctrines intended not just to deny the validity of First Nations laws, but to also deny the value of indigenous life itself. He also stated, '….that the government of Canada which is responsible for the passage and maintenance of that law today did not deign to appear before us, was not so much an affront to this court as it was an act of disrespect to the ideals and aspirations of First Nation peoples and therefore also a violation of First Nations law.' He continued 'True justice lies not in written down words or acts of a parliament, but in visions and dreams which should underpin them. Indigenous law is based upon clear dreams of how life should be lived and clear vision of the sovereignty and political power required to give effect to them. Her Majesty the Queen in Right of Canada has trampled upon those dreams and remains today in breach of the law which came from First Nations.'
The judges all agreed that the First Nations of Turtle Island had sovereignty and that it had been given to them by the creator. In the testimonies of Haida Nation elder and hereditary chief Lavina White, and also Chief Oren Lyons of the Houdenoshonee Nation, we heard them speak of a law of creation, that established the law ways of the Indigenous Peoples. The law established principles of kindness the values of caring and sharing, respect, truth and the obligation to keep the great peace of Turtle Island.
We also heard testimony on the differences in world views between Indigenous Peoples and settler colonial governments; 'The colonisation of all the countries in this world has been the destruction of Mother Earth. And so colonisation, colonial mind set must come to an end. The colonial mind set is never going to change because their need for land and dollars and resources is insatiable. I see no sign of any change. And we have a responsibility that was given to us by the creator when he placed us in our areas. We have a responsibility to say, 'No, we cannot treaty with you on land when you intend to take it and intend to take the title away from us. Because it was the creator that placed us here and gave us the responsibility of the care of the area.'
It was agreed by the panel of judges that the law ways of Turtle Island had been 'unlawfully interfered with and unlawfully disregarded by the imposition of foreign laws and jurisdiction upon the First Nations and their territories'. And that 'the law ways of First Nations had been deliberately and systematically abrogated, disrespected and plundered by the colonising powers named in the indictment'.
The court heard how the domination of the colonial world view led to breaches by settler governments over the content and spirit of treaties negotiated between them and the First Nations. Chief Oren Lyons spoke to the Court of the Great Peace of Turtle Island as being the basis of the spirit and intention by which treaties had been entered into. We also heard testimonies of how treaties had been dishonoured and violated by the Crown throughout Turtle Island.
The court will re-convene to hear further testimonies by First Nations
of Turtle Island. During our first sitting the seat of the Canadian
government remained empty. We hope the seat will be filled at the
next hearing of the court. The FNICJ would like to hear testimony
from Canada on how it is they have come to view that they retain lawful
jurisdiction within Turtle Island.
Aboriginal Law Bulletin, November 1997