All First Nations Hereditary Traditional Governance is now threatened
In a stunning Court decision finally delivered on September 28, 2011, more than two years after it began, First Nations Traditional Hereditary culture was once again relegated to the dustbins of history. Be Forewarned, This Is Not Short Article, It Is Indepth With Many Links For Context
Similar to the residential schools where the claims of genocide are disregarded as the proof was destroyed by the perpetrators (and the grave sites have not been forensically examined) the Judge in this case stated “No documentary record was presented” when considering the validity of the hereditary system of governance.
Even more absurd was how the presiding Judge, appointed by the BC Government of Premier Campbell, used a ruling from 2011 to rule against the Haisla Hereditary Chiefs when the trial was in 2009. The closing arguments were heard in February 2010. One might find it difficult to present an argument against something that wasn’t to happen for almost two years.
The case was about slander. Libel. The Chief Councillor of the Haisla Village of Kitamaat, basically a Mayor of a municipal Council, Steve Wilson, was pissed off at his Hereditary Chiefs for standing in his way as he was making secret deals with Gordon Campbell regarding selling Alcans power production capabilities to BC Hydro. The white community of the District of Kitimat had engaged in a lawsuit to protest this as well.
This gets somewhat complicated as can be seen from reading the previous paragraph, so some context and history needs to be provided for understanding. There is a large economic consideration to the region. Previous and present day international interests are at play.
The Village of Kitamaat is a small native (Indian) community populated by Haisla and Kemano peoples run under the jurisdiction of Indian and Northern Affairs Canada (INAC) and the Kitimat Village Council (KVC)
The District of Kitimat (DOK) is in virtually the same spot just a few miles away. This is a town built after the Second World War to provide accommodations for the workers at an aluminum smelter. The aluminum was originally required for war planes for the USA; basically the forerunner to NATO. The history of the aluminum smelter and power generation facilities includes stories of Russian spies and RCMP secret service operatives.
The smelter however, was the foundation of the DOK along with the workforce and the tax base. Alcan built two large tunnels through the mountains from a lake reservoir to drive large electrical power producing turbines. These are known today as Kemano one and Kemano two. Kemano two is also known as the Kemano Completion project as it has never been completed and put into service.
The former Mayor of the DOK, Rick Wozney, along with his District Manager, Trafford Hall, started a lawsuit in an attempt to force the BC government and Alcan into a legal obligation. This was, simply put, to tie together the use of the hydro electric power of the reservoir and the turbines to jobs and industrial activity. The aluminum smelter required this large supply of electricity and the location was secluded.
The original agreement of the 1950's was designed when WAC Bennett was in power. In exchange for jobs he agreed to allow Alcan to construct the tunnels, flood First Nations land, and virtually exterminating the Kemano First Nations. Most of the remaining Kemano residents moved to the Haisla Village of Kitamaat. Correction and addition, Kemano suffered primarily from disease. It was the Cheslatta, in 1952, who were affected by the flooding. Each adult was given $50 as they were being relocated off of their traditional territories for the construction of the Kemano reservoir.
Both the DOK and the KVC were engaged in the controversy surrounding the sale of the power produced by Alcans generation facilities at Kemano to BC Hydro, but on different sides.
The DOK started a lawsuit to challenge the Provincial Governments plans and the KVC Chief Councillor, Steve Wilson, made a secret, behind the doors deal with the Premier of BC Gordon Campbell to allow it.
While the white Municipality of Kitimat openly challenged the Provincial Government and the BC Utilities Commission (BCUC) on the legalities of their decisions and the legitimacy of the 1950’s Industrial Development Act agreement, the Kitamaat Village Chief Councillor, Steve Wilson, privately agreed to deliver the Haisla First Nations' compliance in exchange for his own private Hydro Electric Turbine projects.
This is a twist from the usual ‘White versus Indian’ fights. In this case the local ‘White’ population was fighting against the government while the local ‘Indian’ leadership made the secret deals.Click here to read an analysis of the issues written on Oct 7, 2009 as the trial was underway.The Haisla Hereditary Chiefs are sued for libel by their INAC elected CouncilFirst the reader must know the names. These are all Haisla First Nations persons.Between: The Plaintiffs;
Kitamaat Village Council and; Steve Wilson, Margaret Grant, Jonah (Keith) Nyce, Ellis Ross, Kevin Stewart, Rod Bolton, Ken Hall, Alex Grant Sr., Godfrey Grant Jr., Henry Amos Sr., Henry Amos Sr., And the Defendants;
Janice Georgina Alice Eleanor Switlo, John Wilson Sr., Allan Williams Sr., Morris Amos, Sandra Robinson, Wendy Bolton, Harvey Grant Sr., and Jennifer Grant Howard,
also known as Jennifer Grant
Before: The Honourable Mr. Justice R. PunnettThe lead up to the event
In September of 2007 Steve Wilson, without consulting the Haisla Hereditary Chiefs, registered the KVC as an intervener in the BCUC hearings. When this was discovered, a day before the application period to apply for intervener status closed, two Hereditary Chiefs and their speaker, Morris Amos, determined they had better make their own application immediately. They quickly drafted a letter challenging the jurisdiction of the KVC over Haisla traditional lands, that which the INAC laws doesn’t give a Village Council jurisdiction over.
It was this singular event which triggered a challenge between INAC and the Village Council authority versus Traditional First Nation Hereditary Chief authority. And this is what the four year long legal battle was and is all about.
The Hereditary Chiefs demanded to be consulted and to have input regarding their traditional territories. One Chief even had his traditional trapping region slated for one of the secret Hydro electric projects without being informed. But the elected Village Councillors believed they were the high authority of the Haisla Nation and their hereditary system government was no longer valid. The Hereditary Chiefs then determined to exercise their powers and held what they considered a traditional hereditary Chief hearing on the issues of the KVC absconding their authority using words such as treason. They summoned the elected KVC members to attend this hearing and none attended. The Hereditary Chiefs found them guilty in absentia.
During the trial the Haisla Hereditary Chiefs expressed their concerns that these issues were between the Haisla people, and the Canadian Courts had no jurisdiction over the Haisla First Nations people on internal matters. The Hereditary point of view was and is that the elected Council is to maintain and manage the affairs of the community, the Village, and they are to consult with the elders, the Hereditary Chiefs, over matters of the traditional lands and the Haisla Nation as a whole.
The Delgamuk Appeal Court Ruling of 1997 (Read more here)
also spoke to the authority and traditions of the elders and the hereditary system of government however Justice Punnett, (formerly a lawyer from Prince Rupert), saw things somewhat different than the Appeal Court of Canada. The Appeal Court stated the original trial Judge, McEachern, made an error and had not given enough consideration to the oral histories presented by the First Nations. McEachern had also stated aboriginal rights only existed at the "pleasure of the crown" calling First Nations lives, "nasty, brutish, and short".
He stated, and was found in error by the Supreme Court of Canada, oral tradition could not stand on its own as historical evidence.
Once again a BC Provincial Court Justice, Punnett, is following in McEacherns erroneous footsteps.
Direct from the reasons for judgement issued this week regarding the trial of the Haisla vs the Haisla, Justice Punnett writes;Was the Haisla Traditional Court Exercising a Judicial Function?  The defendants assert that there exists an entity called the Traditional Sovereign Tribal Court of the Haisla Hemaas based on their custom law. They say furthermore that the 5 Page Document was prepared in the context of proceedings before that tribunal and is therefore protected by absolute privilege.
 As I have mentioned, the 5 Page Document is purported to have been issued by an entity called the “Traditional Sovereign Tribal Court of the Haisla Hereditary Chiefs”. It commences with the words “In the matter of an act of treason” and proceeds to detail a number of allegations against the plaintiffs. The evidence indicates it was dictated by Aidun Naidu, the individual who had purportedly been appointed Chief Tribal Judge.
 As discussed above, in order to attract absolute privilege, a tribunal must be “recognized by law”.
 The defendants therefore face two preliminary hurdles with respect to their assertion that the 5 Page Document is protected by absolute privilege. They must first establish that the “Traditional Sovereign Tribal Court of the Haisla Hemaas” exists, and second, that it is a tribunal recognized by law to have jurisdiction over the matters referred to in the 5 Page Document.
Note in the following paragraph it appears the Justice wants documents to prove a traditional Court existed when all those of knowledge are fully aware no such documents could exist.
 The evidence in support of the existence of this traditional court was sparse. No documentary record was presented. The evidence was presented by individuals considered to be elders, which I understand to be a term referring to those older members of the band who are considered to have wisdom and who are keepers of its traditional, cultural and historical knowledge.
 Don Stewart, who was born in 1931, testified that he had been told by Chief Dick Williams in the 1940s that the chiefs had sat as a court.
 Magnus Duncan, 80 years of age and a hereditary chief, testified that when he was young, he listened when his grandfather Jacob Duncan, also a hereditary chief, told guests the history of the chiefs sitting as a court. He also testified that when he was 14, he and nine other young men had to appear before the chiefs regarding their behavior. Punishment was imposed by the chiefs and the village council carried out that punishment.
 There was no evidence respecting how this body functioned, the source of its authority, or what custom law it followed.
 Jennifer Grant Howard testified that when the alleged court convened in 2007, the chiefs were in regalia and the proceedings were arranged in a roughly court-like fashion. However, no plaintiffs appeared and the proceedings ended.
 The limited evidence concerning the past existence of the “Traditional Sovereign Tribal Court of the Haisla Hemaas” has failed to describe its rules, procedures, practice or source of authority. Although I recognize that statutory authority is not required, without any evidence of the above, I am unable to conclude that this is a tribunal recognized by law.
 I therefore cannot conclude that absolute privilege in relation to the 5 Page Document has been established.
 I pause to note that the elders, who are not parties to this action and who were called to give evidence on their knowledge of the alleged court, testified with the gravitas of elders and there was a palpable acceptance by those in the courtroom of their wisdom. Don Stewart commented that he was concerned about what had happened to, in his words, “their once beautiful village”. As I understood him, that was a reference to the dissension in the village. It is unfortunate that such wisdom, readily available to the defendants, was not listened to.
This last paragraph demonstrates two substantial bias’s of the presiding Justice. First, through his previous words he states he could not accept the oral evidence delivered by these elders but in this paragraph also acknowledged those in attendance were in “palpable acceptance”. At the time of this evidence, during the afternoon of October 28th, virtually all in attendence (25) were exclusively Haisla nation members from both sides of the Court conflict, elected and Hereditary. But then he adds at the end regarding the statements by the elder about what was happening to their “beautiful village” as “wisdom [….] not listened to by the defendants”
when in fact these elders were presenting evidence on behalf of the defendants.In summary, all the Haisla present, according to the Judge himself, demonstrated acceptance of the evidence, and the evidence by these elders was presented as in favour of the defendants. It is difficult to understand how the Justice could see it differently than an entire Haisla acceptance of the Hereditary system.
BC has a sad history of exterminating and disregarding the First Nations people and the use of the judicial system seems to be one of the methods used, and consistently overturned, by the Supreme Court of Canada. Delgamuk is only one example.
Many statements were made by the Justice in his ruling , which appear to be conflicting to the evidence we recorded in our notes. On pages 17 to 22 Justice Punnett discusses the use of a rubber signature stamp used to affix the high Hereditary Chiefs signature to a document withdrawing the intervention of the Hereditary Chiefs. This was a critical part of the trial.
Chief Jassee is the Hereditary Name given to the Highest ranking member of the Haisla Nation. At the time the man holding the name was Tom Robinson. Tom passed away during the trial. The name is now held by the matrilineal successor, Greg Smith. When the High Chief makes a decision and affixes his signature to anything, all others are obligated to follow suit.
This retraction letter of the Hereditary Chiefs as interveners in the BCUC hearings was prepared after a very quickly arranged acrimonious meeting on September 27, 2007, of some village elders, the KVC Councillors, Steve Wilson and two high Hereditary Chiefs. Punnett acknowledges two letters were drafted; the second was to add the four High Chiefs Hereditary names to the signature lines. However when discussing the September 27th meeting on pages 16 and 17 of his ruling, Punnett acknowledged only one of these Chiefs spoke in favour of the withdrawal letter and that neither the High Chief, Jassee, nor the one he accepted as being a speaker for Jassee, was present. He then states many Hereditary Chiefs were present at the meeting as if to suggest their presence (wing chiefs, clan representatives) over ruled the absence of the high Hereditary Chiefs. Even more absurd is the only person he referred to as a High Chief accepting the intervention retraction letter for BCUC was Harvey Grant Sr., a man who had recanted his High Chief status.
The evidence presented at the trial was clear and unambiguous. The first letter was circulated with the signature stamp affixed. On October 1, 2009, Margaret Grant testified to the quality of the stamp and that one couldn’t distinguish between it and a true signature. It was this first letter that was taken around to get the other High Chiefs to sign. The testimony was once the Raven High Chief, Waka’s, saw the signature of Jassee, he immediately signed. Testimony was also given that he had just endured eye surgery and could not see well.
In paragraph 78 on page 20 of the 261 page decision, Justice Punnett states the signature stamp was not used on the first copy of the letter when the testimony given on October 1, 2009, was that it had been and that even the lawyers for the KVC, Donovan and Company stated it been used on the first draft of the letter.
“As it developed, the stamp was not used on the first copy of the letter.” wrote Punnett
It was this first draft, with the signature stamp, that is the foundation of the fraud alleged by the Haisla Hereditary Chiefs and the Community leaders and speakers; the fraud admitted to by Kevin Stewart when he acknowledged the wrong doing at a community meeting of over 100 Haisla in January 2009.Page 18 para 71) f) Kevin Stewart admitted under cross that in January 2009, at a public meeting of 100-150 people at the Kitamaat Village Recreation Centre, Steve Wilson responded to shouts of “drop the lawsuit” by saying maybe a feast would solve it. He [Kevin Stewart] then admitted that he stood up and emotionally said: “I feel sick. It was me who put the stamp on. I didn’t mean to be fraudulent. I should have gone to Tommy”. Wendy Bolton recounted this in her testimony as well.
Near the beginning of the 261 page ruling, Justice Punnett states, on page 32, the KVC is found unable to be successful in a defamation suit and entirely dismisses the Kitimat Village Council legal action against the Hereditary Chiefs et al.
However, then on page 40, Punnett uses a Supreme Court decision of this year, 2011 to provide a foundation for providing success for the KVC councillors individually, writing; After I received counsel’s submissions, [in February 2010] the Supreme Court of Canada issued its decision in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9. At paras. 57-58, the court discussed the considerations that arise in the course of determining whether an ordinary person would have believed that each plaintiff personally sustained damage to his or her reputation:
This case was to find the individuals of a group (ie. The KVC) separately harmed.
It would be difficult for any lawyer to argue against “authorities”, ‘precedent case law’, that were not available during or presented during the trial.
Defence Council Daniel Burnett stated the Judge did not ask him if he would present an argument against this new authority and was unaware it was being used.
It is a general rule, though not absolute, a judge can only make decisions on a case using the evidence presented to him or her during the trial. Using a case decision delivered long after a trial is concluded to deliver a decision on a trial held two years earlier seems somewhat extraordinary.
Using this ruling Justice Punnett stated;In this case, many of the allegations were directed at council members as a group rather than at any particular individual. The issue to be addressed in the analysis of the impugned words is whether an ordinary person would have believed that the comments damaged the reputation of each member of that group, with the result that each of them sustained personal injury.
He then, in detail, listed all the letters and allegations and fined the defendants, Hereditary Chief, Harvey Grant Sr., Hereditary Chief Allen Williams, Hereditary Chief speaker Morris Amos, Jennifer Grant Howard and Janice Switlo.
Justice Punnett final words were; Given my findings in favour of the plaintiffs, their response to the counterclaim was a response to an untrue attack, not to valid criticism. It was reasonably appropriate to the occasion and as such, it is protected by qualified privilege.
 The counterclaim is therefore dismissed. In these circumstances, I decline to grant an injunction restraining the plaintiffs from publishing defamatory words.
These final statements gives the KVC full authority to continue to defame the Hereditary Chiefs and their helpers.The fines levied against the defendants are as follows;  In summary:
a) The claim of the plaintiff Kitamaat Village Council is dismissed.
[This ruling could have ended the entire affair without causing the Haisla more internal hardship]
b) The claims of the plaintiffs against Sandra Robinson and Wendy Bolton are dismissed.
[Robinson and Bolton were the only Haisla defended by a lawyer, Daniel Burnett.]
c) The publications were, as detailed above, defamatory of the plaintiffs.
d) General damages in the sum of $20,000 in favour of Steve Wilson are assessed against Janice Switlo, Morris Amos, Allan Williams Sr. and Harvey Grant Sr., jointly and severally.
e) General damages in the sum of $10,000 in favour of Margaret Grant are assessed against Janice Switlo, Morris Amos, Allan Williams Sr. and Harvey Grant Sr., jointly and severally.
f) General damages in the sum of $10,000 in favour of Kevin Stewart are assessed against Janice Switlo, Morris Amos, Allan Williams Sr. and Harvey Grant Sr., jointly and severally.
g) General damages in the sum of $56,000 ($7,000 each) in favour of Jonah (Keith) Nyce, Ellis Ross, Rod Bolton, Ken Hall, Alex Grant Sr., Godfrey Grant Jr. and Henry Amos Sr. are assessed against Janice Switlo, Morris Amos, Allan Williams Sr. and Harvey Grant Sr., jointly and severally.
h) General damages in the sum of $2,000 against Jennifer Grant Howard in favour of the plaintiffs.
i) Aggravated damages are assessed against Morris Amos in favour of the plaintiffs in the sum of $2,000 each.
j) Aggravated damages are assessed against Janice Switlo in the sum of $2,000 in favour of each plaintiff.
k) Aggravated damages are assessed against Allan Williams Sr. in favour of the
plaintiffs in the sum of $2,000 each.
l) The claims of the plaintiffs for punitive damages are granted in the sum of $10,000 as against Morris Amos but dismissed as against the remaining defendants.
m) The plaintiffs’ claim for a permanent injunction restraining Janice Switlo and Morris Amos from making defamatory statements concerning the plaintiffs is granted in the terms set out above. The claim for injunctive relief restraining the remaining defendants is dismissed.
n) The counterclaim is dismissed.
The Defendants find the ruling to be exactly what they expected. They did not expect the Crown lawyers, particularly those from British Columbia to rule in favour of the Hereditary structure of their culture. Just like the Delgamuk ruling it will require a higher Court to overturn this decision. This may be the new Court Case called for by the appellate Court Judges at the Supreme Court of Canada to determine the validity of the First Nations traditional system of governance.
The entire ruling is attached below. If one take the time to comb through the 261 pages and compare the findings to the virtual daily reports on the trial activities, many discrepencies and questions might be found. Another concern might be the huge amount of time spent by Justice Punnett on the validity of the BCUC hearings disregarding the Hereditary Chiefs assertions. The case was about slander and libel afterall, not the BCUC. It reads like a protective document for another BC Railgate.A complete reporting history of the events leading up to the trial and the trial itself follows with links and dates to stories posted on the Terrace Daily website.Steve Wilsons Secret Deal with BC Premier Gordon Campbell exposed
March 3, 2008 DID HAISLA SECRET DEALS WIN ALCAN FAVOURFirst Court Hearing on Libel allegations to be heard
January 13, 2009 HAISLA WATERGATE, BCUC DECISION AT STAKEHereditary Chiefs state their case
January 13, 2009 HEREDITARY CHIEFS CHALLENGE STEVE WILSONGordon Campbell is brought into the court action
March 30, 2009 WILSON MAKES A JOKE OF THE HAISLA NATION
March 30, 2009 HAISLA FACE COURT IN TERRACE MONDAY
April 8, 2009 HAISLA KITAMAAT COURT BATTLE STYMIEDThe Real Trial Begins
September 27, 2009 HAISLA AND STEVE WILSON RETURN TO COURT
October 1, 2009 TRAIL OF ALLEGED BCUC FRAUD EXPOSED
October 1, 2009 HAISLA BOXED BY PIZZA PIZZA FOR WILSON
October 2, 2009 WILSON HAS COUGHING FIT IN COURT
October 2, 2009 AMOS RETURNS & STEWART TAKES STAND
October 5, 2009 DID CAMPBELL PARTICIPATE IN HAISLA FRAUD
October 5, 2009 HAISLA TRIAL RESUMES – AMOS ON THE STAND
October 6, 2009 WHO KNEW WHAT AND DID WHAT, WHEN
October 7, 2009 WILSON SWITCHES PERSONALITY ON STAND
October 7, 2009 HAISLA PRE-DESTINED TO LOSE? MILTON WONG
October 9, 2009 IF ONLY WILSON KNEW, IS IT A SECRET?
October 15, 2009 HAISLA TRIAL IN TWO WEEK RECESS
October 27, 2009 COURT WILL DEBATE CUSTOM LAW AUTHORITY
October 28, 2009 LAWYER STARTS LAUGHING IN HAISLA TRIAL
October 29, 2009 MEASURE OF DIGNITY FOR HEREDITARY CHIEFS
October 30, 2010 JUSTICE IN A ROCK SLIDE AT FRAUD TRIAL;
December 25, 2009 RULING PROTECTS HAISLA, DAILY NEWS & CFNR FROM WILSON ET AL
January 8, 2010 HAISLA TRIAL WILL RESUME ON JANUARY 19 IN TERRACE
January 20, 2010 HAISLA DEFENCE RESTS – FINAL ARGUMENTS BEGIN
Court is in session.