The Dakota Comprehensive Claim case is still dragging its way through the court-ordered break to allow negotiation… or as we joke, the “non-negotiating phase”.
The court cannot make Canada actually negotiate, all it could do was call them on their claim that they would “negotiate or litigate, but not both” which they kept using as an excuse/threat to get the Dakota to stop the case entirely. The judge cleverly forced them out on this by saying “o.k. I’ll wait, and give you six months of negotiating time. If you haven’t negotiated in good faith by that time, it comes right back into court.”
By using delays (including the election) this six-month period has been stretched out to nearly a year, and the judge’s time limits won’t expire until December, at which point no doubt the Canadian Government will call for a Christmas break.
However, it will help a little because the Canadian Government’s demonstrating bad faith to the court itself.
The attorney for the Crown in this matter has disappeared from the case for some reason, and the Dakota have been informed that a new one is being appointed — more delays.
In the meantime, the Canadian Government has got itself caught in another contradiction of their own making… which has to do with the “Sioux Valley Self-Government Agreement.”
The background here is bureaucratic inertia, both in the meaning of slow, and also in the meaning of grinding along anyway. Twenty years ago the Government (Liberal) started encouraging these “Self-Government Agreements” as a kind of treaty-annex under the new constitution. The idea is that when one is signed by First Nation, Province and Federal government, that all three parties agree to devolve certain legal powers to the First Nation level. Sioux Valley was actually one of the very first to start down this path, but has gone only very slowly since for a number of reasons. Last month, its agreement was finally signed.
“Aboriginal self-government” as a concept in the Canadian constitution today flows from the Charter of Rights and Freedoms where it says that all Canadian aboriginals have an inherent right of self-government.
In practice, to define exactly what that means in each case, the different levels of government and any given First Nation negotiate and then sign a “Self-Government Agreement.”
In signing this document, the Government of Canada has admitted that the Dakota (of Sioux Valley at least) are “Canadian Aboriginals” else they could not have exercised this constitutional right.
But… in the Dakota Comprehensive Claim case, the Government of Canada takes the position that all Dakota (including Sioux Valley) in Canada have no rights because they are “American Refugees.”
So, the Government of Canada has therefore taken a position in one case which is completely opposite the position they took in the other case. It can’t be both.
One could argue that the lawyers were different, or that the departments were different (Attorney General vs. Indian Affairs) and it could be said that this is simply a temporary confusion that will get straightened out. But, it is the very same negotiator — Sheldon Peltz — in both cases. Also it is the same Prime Minister Stephen Harper and he likes to control everything.
Therefore, there is only one of two possible answers:
1) The Government of Canada has taken a frivolous position in the Comprehensive Case that deliberately wastes the court time because it knows it is a false logic;
2) The Government of Canada has committed a fraud in the case of the Sioux Valley Self-Government Agreement because it believes these Dakota people could never have had this right.