Law Times

LAW TIMES / MAY 26, 2008 R Government's duty: set policy something in Ontario? When acquiring title to land meant it was yours? When police were law emember when the term "private prop- erty" actually meant Inside enforcers, and not just "peacekeepers?" When the Crown intervened in cases to uphold the law, not defend the rights of lawbreakers? When governments acted as though they represented all the citizenry, and not just special interests? claims — the most recent is a de- mand for the "return" of the Sud- bury basin, plus a usage fee of $550 billion — were treated as the fool- ishness they are. The following legislative When spurious aboriginal land Queen's Park By Derek Nelson community's great frustration and the developer's great frustration, with respect to what is taking place. A lot of efforts have been made to try and bring people together to get them off of the streets and onto the negotiating table. "As the mayor said to me yes- COMMENT L Why lawyers? rights violations in Pakistan. We saw reports that read, ast November we started to see in the media reports of protests of human exchange between Liberal Ab- original Affairs Minister Michael Bryant and Progressive Conser- vative MPP Toby Barrett from Haldimand County illustrates the depth of the Liberal retreat from their constitutional responsibili- ties to administer justice. Barrett was asking about the ongoing activities of the Six Nations-based Haudeno- saunee Development Institute, which claims jurisdiction over development on all lands in the Haldimand Tract, basically much of the Grand River basin — and most of it privately-owned. Barrett: "Mike Corrado is terday, at the heart of this is, in fact, unresolved claims, and, real- ly, primarily along the Haldimand tract. Both the mayor and I agreed that it really is time for the federal government to set a deadline and say we're going to put all of our re- sources into resolving these claims . . . with respect to this 200-year- old dispute . . . " The media headlined Bryant's demand for a negotiation dead- line, and ignored the substance of Barrett's question. The land is Corrado's. It is not in part: "Police baton-charged and scuffled with dozens of lawyers . . . Lawyers have taken to the streets in protests in Pakistan . . . Police fired tear gas and clubbed thousands of lawyers . . . Hundred of police blocked about 1,000 lawyers . . . [Police] brutalized peaceful lawyers and arrested them . . . Lawyers will continue their struggle for the restoration of the constitution until their death . . . " At one point a television news anchor turned to her broadcast partner and asked, in some con- fusion: "Why lawyers?" Everyone reading this col- our legal system. With the globalization of the legal profession, the erosion of respect for the rule of law any- where threatens its tenuous posi- tion even in the most democratic societies. As Martin Luther King Jr. said, " A threat to justice any- where is a threat to justice every- where." Governing in the public The Profession By Gavin MacKenzie interest requires that law societ- ies provide access to lawyers who can meet the public's legal needs by preserving and promoting access to justice, the rule of law, and an independent bar. As lawyers and judges, we the owner of a multi-residential site in Cayuga and he met with HDI several weeks ago along with municipal and provincial officials. HDI requested this meeting after protesters blocked access to . . . Corrado's land. "In addition to a demand for a $3,000 application fee, they also demanded [he] transfer title to his property to HDI and lease it back from them for the next 50 years. "You're a lawyer, you're the government. Is this not illegal? Is this not extortion? More specifi- cally, minister, are home builders now required to transfer title of their lands to Six Nations?" Bryant: "No." Barrett: ". . . Corrado would re- the province's. It is not Ottawa's. Even Commissioner Sidney Lin- den in the Ipperwash report said, "Settling claims without damaging the interests of non-aboriginal peo- ple is a long-standing principle of the land claims policy in Ontario. "An important part of this pol- icy is that expropriation of private property as a means of settling claims is ruled out." So if Corrado is not required to transfer his title to the HDI, as Bryant concedes in a minor sop to private ownership of property, then how does he go about devel- oping his land, given that the On- tario Provincial Police refuse to intervene and the Crown opposes privately-sought injunctions? And why have agencies of the ally appreciate a more fulsome an- swer. We've spoken with . . . Cor- rado this morning. The blockades at his construction site are still up in spite of your 'no.' He has been told by [Six Nations Chief] Ruby Montour that the protesters will not leave and they'll never leave until he complies with HDI's de- mands, meaning transferring title of his land. "Again, minister, is this not blackmail? Are deeds worth nothing? How many thousands of jobs are going to be lost, how many millions of dollars has to be spent on policing? The OPP have told . . . Corrado they will merely act as peacekeepers; they will not intervene. "My question is: Do you agree with . . . Corrado asking the OPP to lay criminal charges, asking the OPP to enforce the Criminal Code of Canada?" Bryant: "I spoke to the mayor of Brantford to discuss the munici- pal council's great frustration, the provincial government such as the OPP (at Caledonia, Deseronto, and elsewhere) and the Crown (in the Platinex case) suddenly absent- ed themselves from the defence of private property and title? Could it be because the prov- ince has told them to do so? The Liberals deny it. Bryant said police are "independent," although even Linden in the Ipperwash re- port said the government of the day has not only a right to give policy orders to the police but a duty to do so — and to put it in writing. Rather than trying to prove the Liberals are interfering in op- erational matters of the OPP or the Crowns, which I doubt they are (no more than the Conserva- tives did at Ipperwash), the op- position should be demanding that the Liberals table in the leg- islature what policies the govern- ment is requiring the OPP and Crowns to follow in regard to aboriginal law-breaking. Operations flow from policies, and it is the duty of the govern- ment to set policy. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers .com. umn knows the answer to that question, why lawyers? I will come back to it but it is telling, and not terribly flattering, that the question was asked. We are not universally seen as activists. The puzzled news anchor is not alone in think- ing of us as an elite, as mem- bers of the establishment, as unlikely agitators. But I doubt that there are many times when we are more respected as a profession than when that is the role we play. In addition to the declaration of a state of emergency in Paki- stan, the suspension of the con- stitution, the dismissal of Chief Justice Iftikhar Chaudhry from office along with 40 other judg- es, and the detention of at least 3,500 lawyers and other civil rights activists in that country, over the last couple of years the world has witnessed: (1) extraju- dicial executions in the Philip- pines of hundreds of activists, including lawyers and judges; (2) the dramatic deterioration of the rule of law and the repres- sion of human rights defenders in Zimbabwe, including the intimidation, arbitrary arrests, and detentions of lawyers; (3) the Chinese authorities' broad crackdown against human rights lawyers and other activ- ists, actions that are escalating in light of the imminence of the Olympic games; and (4) death threats against lawyers and human rights activists in Kenya, threats that appear to be linked to the denunciation of irregularities that marred the process and outcome of the latest presidential election. These are just a few examples of blatant violations of the rule of law. These cases are all differ- ent, but they have something in common: members of the judiciary and of the legal pro- fession are targeted as a result of the discharge of their legitimate professional duties. A legal profession that is independent and is perceived to be so, and lawyers and judges who are able to per- form their legitimate profes- sional duties without inter- ference, are fundamental to www.lawtimesnews.com are privileged, and of course privileges impose responsibili- ties. One of these is to main- tain not only the indepen- dence of the bar collectively, but the independence of in- dividual lawyers to discharge their professional duties. Because of these values, in 2006 the Law Society of Up- per Canada approved a policy of systematically responding to hu- man rights violations that target members of the legal profession and the judiciary as a result of the discharge of their legiti- mate professional duties. We are the only Canadian law so- ciety that has created a human rights monitoring group with a specific mandate to moni- tor human rights violations against lawyers and judges and to recommend interventions to Convocation. In 2007, the mandate of the monitoring group was expanded to explore developing a network of organizations and to work collaboratively with them, to address human rights violations against judges and lawyers. These initiatives were not other organizations. For exam- ple, the American Bar Associa- tion is mandated to send rule of law letters to government leaders of countries where vio- lations are alleged to have oc- curred. The International Bar Association, which includes as its members national bar asso- ciations and law societies, sends letters of intervention when it receives reli- able information that lawyers, judges, or officials involved in the operation of le- gal systems have been threatened, detained, or abused. The IBA intervened in 10 cases in 2006. The Law Society of England and Wales has been more prolif- ic; it intervened in approximate- ly 30 cases of persecuted lawyers in 2005. Other organizations, such as Amnesty International, Human Rights Watch, Lawyers' Rights Watch Canada, and the Observatory for the Protection of Human Rights Defenders, work tirelessly to monitor and publicly intervene when the hu- man rights of lawyers and judges are violated. Since 1990, the Canadian approved without dissent. Some of our bencher colleagues think we are straying beyond our authority to govern the le- gal profession in Ontario in the public interest, and of course they're not wrong to remind us of our statutory mandate. But I believe the decisions were the right ones, and that we should adopt a more expansive and far- sighted approach to our role. Since the inception of the law society's monitoring group, we have intervened in more than 25 cases, by writing letters over my signature as treasurer to express our concerns. Interventions have in- volved violations in countries around the world, including Algeria, China, the Demo- cratic Republic of the Congo, Egypt, Georgia, Honduras, India, Kenya, Pakistan, the Philippines, Saudi Arabia, Su- dan, Syria, Tunisia, Vietnam, and Zimbabwe. are particularly effective when they are undertaken concur- rently or in collaboration with These types of interventions Bar Association has also been actively involved in promoting the rule of law internationally by delivering legal and justice reform and capacity-building projects in countries across Asia, Africa, Central Europe, and the Caribbean. This is another example of the legal profession's contributions to the values of an independent legal profession, an indepen- dent judiciary, the rule of law, and access to justice. These are the types of proj- ects that can make a differ- ence and where the law soci- eties that represent the public interest, legal organizations that advocate for the rights of lawyers, and the Canadian legal profession generally can play a pivotal role. The law society released a statement in November 2007 expressing its grave concerns about the dismantling of the rule of law in Pakistan. The statement was released concur- rently with statements from or- ganizations around the world, including the Federation of Law Societies of Canada, the CBA, the UK Law Society, Amnesty International, the ABA, and many others. The legal profession then PAGE 7 rose in solidarity to decry the treatment of lawyers and judges in Pakistan, and the violations of the rule of law, by demon- strating and signing petitions. Four hundred lawyers attended a gathering in November 2007 in front of Osgoode Hall to support the call for the res- toration of the rule of law in Pakistan. The event was held to show support for the lawyers, judges, and human rights advo- cates in Pakistan who are cou- rageously defending the rule of law in that country. Lawyers raised their voices in protest See Legal, page 9

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