A Sto:lo woman’s lone court fight against her “criminalization” for possessing fish she says is an aboriginal right nearly came to blows Wednesday.
Patricia Kelly was arrested and jailed for drumming and singing her way into the Chilliwack courthouse, where she hoped to present expert testimony on her fishing rights under the Canadian constitution.
But that testimony, from a Lethbridge University professor, first had to meet judicial standards to be accepted as the opinion of an expert, rather than an advocate, a process that took up a full morning of the one day of scheduled court time left to Kelly to make her case.
Sto:lo Nation president Joe Hall said the need to follow rigid court rules of procedure is a flaw in the system that aboriginal people can’t overcome — without the political will of the federal government.
“It’s the government, at the end of the day, that has the ability to change the acts that create the laws that the courts are stuck with,” he said.
But the courts aren’t set up to hear these kinds of social issues, he said.
So when Kelly was charged under the Fisheries Act in 2004 and continued to fight her conviction she was treated like a criminal rather than an aboriginal person simply exercising her constitutional rights.
And as she tried to practice her aboriginal culture by drumming and singing as she walked into the courthouse Wednesday, Hall said, “she gets the same treatment as if she were the murderer down in Colorado, for heaven’s sake.”
“The government has to resolve these issues through legislation and policy,” he said, “rather than just automatically turning them into crimes and have the courts deal with issues that, quite frankly, don’t belong in the courts.”
Anthony Hall, the Lethbridge University professor called by Kelly as an expert witness, told the court he’s been writing about aboriginal rights since 1981 and is now a full professor of native American studies.
He rejected the “advocate” description of his role in the case, as suggested by the court.
“Drawing attention (in court) is not advocacy, but looking at the hard realities,” he said.
“I am a messenger trying to articulate realities I see,” he said, according to the oath he swore to tell the truth in his testimony.
“This is my effort to bring to the attention of the court how this particular case and this particular woman (are) relevant to the constitutional questions I would like to bring to the court.”
In an interview before the court hearing, Hall said the federal government is failing to live up to its duty to protect aboriginal people, unlike the U.S. federal government that has taken state governments to court for violating native rights.
If the federal government of Canada will not “recognize and affirm” the aboriginal rights as set out in the constitution, he said, then who should in order to build a better relationship between native and non-native people?
“We want this court to acknowledge those legitimate questions,” he said.
The court hearing continued Thursday.
