Indian Time - A Voice from the Eastern Door


Federal Court of Canada Renders Decision on CBSA Vehicle Seizures


AKWESASNE MOHAWK TERRITORY- On October 23, 2012, The Federal Court of Canada heard arguments from the Mohawk Council of Akwesasne (MCA) and the Canada Border Services Agency (CBSA).  This was in relation to a filing by the MCA regarding the seizure of vehicles and the subsequent fines being imposed upon the Mohawks of Akwesasne.  To date, the MCA has paid nearly $200,000 on behalf of members for fines imposed through CBSA vehicle seizures.

 On December 6, 2012, the Federal Court rendered its decision.  It was determined that the seizures were the result of contraventions of the Customs Act, and were reasonable based on the requirement of the CBSA in the interest of National Security.  It was indicated that the threshold for a violation of the CCRF had not been met by the seizures, that the Indian Act protecting Aboriginals from seizures was not relevant as the seizures were civil in nature rather than punitive, and that the CBSA acted within its authority when seizing the vehicles and imposing fines. 

 The Honourable Justice Near was presented with four arguments that were previously approved of by the legal counsels of the MCA and CBSA.  The parties agreed to seek a determination of four questions of law, which included: the legality of the vehicle seizures under the Canadian Charter of Rights and Freedoms (CCRF), the Indian Act and the Customs Act; and the authority of the CBSA to independently decide if seizures were in order.  Grand Chief Mike Mitchell stated that this hearing was, “an opportunity for the MCA to test the climate of the Canadian Federal Court with respect to Border related cases, in what is perceived as a clear violation of human rights against the people of Akwesasne.”

 This hearing was entered into with the knowledge that the decision would be based only on the agreed upon points to be argued; any other related questions or determinations would have to be heard at a higher level, which would be very costly and time-consuming.  The pre-agreed upon arguments presented were in the effort to gain a foundational idea of the climate of the Federal Court with regard to border issues and interpretations of law by the CBSA. 

 Although the MCA and CBSA had agreed to submit only four questions of law to be determined, the MCA was not granted the opportunity to put forth a comprehensive argument regarding our Aboriginal and Inherent rights, or those protected by the Royal Proclamation of 1763.  MCA had a limited scope and was therefore constrained to certain arguments that were agreed upon beforehand. Treaty and Aboriginal Rights issues were not part of the arguments.

 This decision was disappointing to MCA - however, we have to view it as another step in the process of consistently protecting the human and community rights of the people of Akwesasne.  Grand Chief Mitchell noted that, “this decision will serve as a marker for any future proceedings, and is another step in the constant fight for the protection of our rights.” The MCA currently has a number of cases before the Canadian Human Rights Commission involving the CBSA and they are proceeding after lengthy delays.


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