MCA responds to federal court ruling

On Monday, December 21, 2009 Federal Court Justice Anne Mactavish dismissed the Mohawk Council of Akwesasne’s Motion for Interim Orders seeking an Interlocutory Injunction. The Motion was filed in response to the Canada Border Services Agency’s (CBSA) actions of seizing vehicles and issuing excessive fines against members of the Akwesasne community. It sought temporary relief from the Court until a hearing is held on the legality of CBSA’s decision to close of the port of entry on Kawehno:ke (Cornwall Island) on May 31st.

“The motion to seek temporary relief was a hard one to make and the issues were challenging,” stated MCA Grand Chief Mike Mitchell. He added, “It was filed due to the craziness of CBSA’s reporting requirement and the hardships they have placed on the community of Akwesasne.”

On September 18th, CBSA began an aggressive enforcement strategy of their reporting requirement at their temporary port in the City of Cornwall. CBSA started civil seizures of vehicles belonging to community members who travel to Kawehno:ke from elsewhere in Akwesasne, but not to Cornwall. MCA immediately advised CBSA that it would seek relief in the nature of an interlocutory injunction in response to the seizures and fines, which was filed on October 1st.

During a preliminary telephone conference held on December 7th, Justice Mactavish instructed the parties that the Motion for Interim Orders would be heard for three days beginning the following day on December 8th. This development differed from the instructions received in early-October which directed that the Motion and MCA’s June 26th Application for Judicial Review of CBSA’s decision to close the port on Kawehno:ke would be heard together. This sudden change required MCA’s lawyer to make last minute adjustments.

Though yesterday’s decision dismissed efforts to seek temporary relief while the Application for Judicial Review is pending, Justice Mactavish has acknowledged several key arguments made by the Mohawks of Akwesasne.

First, “that the relocation of the port of entry from Cornwall Island to the City of Cornwall has significantly disrupted the lives of many members of the Akwesasne community.” Second, accommodations were made to address the concerns that were expressed by members of the Akwesasne community for emergency vehicles, school buses and funeral processions to be exempt from the reporting requirement. In her ruling, Justice Mactavish does not expect the CBSA to change these accommodations, but in the event that “the situation should change, it will be open to the applicants to initiate such further legal proceedings as they deem appropriate.”

According to the Grand Chief, “The Mohawk Council of Akwesasne has been reacting to unexpected chaos initiated by the CBSA and steps were taken to meet the concerns that we raised. We are pleased that the Court foresees these accommodations as lasting, but any attempt by the CBSA to change these arrangements would seriously affect the health and well-being of the community.”

In yesterday’s ruling, the Federal Court was noticeably silent on the historical rights of the Mohawks of Akwesasne’s use and access to lands within our territory. It’s apparent that Justice Mactavish allowed herself to be swayed by the CBSA and focused on national security policies and did not make a ruling on Aboriginal Rights and Title. Unfortunately, the Court appeared to give little weight to the reality that nearly 70% of travelers at this port of entry are Mohawks of Akwesasne. The judgment shows that true reconciliation between Aboriginal Peoples and Canada remains elusive.

“CBSA has been able to convince Justice Mactavish that the irreparable harm has been removed and she did not take a position on our Aboriginal rights,” noted the Grand Chief. “The MCA disagrees and believes that the court failed to consider our community’s uniqueness and geographic complexity without taking the necessary time to visit Akwesasne. Yet, Akwesasne was only asking as a temporary measure that our unique status, history and geography be taken into account given the sudden relocation of the customs facility and that common sense would prevail.”

Ever since the CBSA relocated their facility and took unilateral action against Mohawks from the community of Akwesasne for not complying with their reporting requirement, the MCA has been pursuing legal and political remedies to our community’s concerns. A meeting was held on December 16th in Ottawa with the chair for the Standing Committee on National Security and Defense. It was an opportunity to share Akwesasne’s ongoing efforts to establish partnerships and address the national security gap that the CBSA has created when it moved its facility from Cornwall Island. At this time, there continues to be no monitoring by the CBSA of any goods or individuals coming from the United States to Akwesasne’s residential district of Kawehnoke.

“While it is comforting to know that some of our emergency response personnel no longer need to report, we still have to concern ourselves with the safety and security for the rest of the Mohawk population, including our elders and other groups that are vulnerable due to their age or condition.” added the Grand Chief. He further added, “We were hoping that the judge wouldn’t have preconceived notions or stereotypical ideas that would greatly influence her decision. We were expecting a fair and honest hearing; not a ruling based on a one-sided interpretation of the facts. As a result, the decision represents the beginning, not the end, of the legal fight between the MCA and the CBSA.”

Regrettably, the judgment does not assist in providing a solution to any of the issues currently dividing the People of Akwesasne, the Government of Canada, and the CBSA.