Indian Time - A Voice from the Eastern Door

AKWESASNE MOHAWK TERRITORY – The Mohawk Council of Akwesasne (MCA) would like to inform community members that notification has been received from the Canadian Human Rights Commission (CHRC) regarding complaints filed against the Canada Border Service Agency (CBSA) in March 2011. The CHRC has advised the MCA that the complaints have been reviewed and are now being recommended to move forward in the resolution process, according to CHRC Early Resolution Advisor Krista Dizazzo.

The first complaint involved the duty to report to Canada via the Cornwall Port-of-Entry and the alleged discriminatory manner in which this duty is imposed on members of Akwesasne. It is alleged that CBSA discriminates against the Mohawks of Akwesasne in the provision of a service. MCA alleges that CBSA has discriminated against Akwesasne and has not provided community members with any alternative measures for consideration.

Another complaint filed cited CBSA’s refusal to accept Mohawk identification documents as valid identification at the Cornwall Port-of-Entry. These identification documents include the St. Regis Mohawk Tribal membership cards, the Haudenosaunee Passport and the Haudenosaunee citizenship card (the red card) issued by the Mohawk Nation Council of Chiefs. These documentations were previously accepted prior to the relocation of the Port of Entry to the city of Cornwall and are currently accepted by the United States Customs. In the last few years, Akwesasne has witnessed other examples across the country where visitors and border communities have been accommodated in regards to reporting requirements.

Additionally, a complaint was filed regarding CBSA’s seizure of nearly two-hundred community members’ vehicles that CBSA claimed had failed to report to Cornwall when traveling to Kawehno:ke (Cornwall Island). This included 23 other individual complainants that have since been combined into one complaint.

Following the initial filing of the complaints with the CHRC, CBSA responded that the CHRC had no authority or jurisdiction to hear these complaints. The Grand Chief noted, “CBSA’s claim that they are not under the jurisdiction of the CHRC is merely a stall tactic that has been used over and over for years.” The CHRC has disagreed in a similar filing stating that they do have the authority to hear the complaint.

Complaints filed to the CHRC can be a complicated and lengthy resolution process. According to the Canadian Human Rights Act (CHRA) and human rights case law, the CHRC is required to investigate a human rights complaint unless it is “plain and obvious” that it falls within one of the exceptions listed in s. 41(1) of the CHRA.

On May 3, 2010, a process for receiving complaints was provided to the MCA by the CHRC in order to help resume independent mediation and to identify possible steps in resolving the ongoing situation. Complaints filed to the CHRC undergo initial review that results in a preliminary report issued by the CHRC’s Early Resolution Division on the issues that the Commission agrees to review.

The next step in the resolution process includes the CHRC inviting both parties (i.e., MCA and CBSA) to return to independent or pre-Tribunal mediation. In past years, pre-Tribunal mediation has proven to be highly successful. If the pre-Tribunal mediation is still refused by either party, then an investigation is conducted regarding the individual complaint. This process can take between six and nine months.

During the investigation, both parties are provided opportunities to submit responses to the complaint file. The investigation’s outcome can either be dismissal or referral of the complaint to the CHRC Tribunal for a hearing. If referred for a Tribunal Hearing, a decision will then be rendered.

Grand Chief Mike Kanentakeron Mitchell stated, “Challenging the system related to government authorities is complicated by undefined areas of jurisdiction, which can be a lengthy and arduous process.” The Grand Chief noted however, “We’re beginning to see the light of day and hopefully in the near future we’ll start seeing the way forward.”

Through Hutchins Legal, Inc., the MCA is also pursuing legal action against the CBSA on the same grounds as complaints filed with the CHRC in previous years. MCA is optimistic that court-supervised mediation will prove successful in resolving the complaints against the CBSA. In recent years, court-supervised mediation has proven successful in resolving issues with Service Canada and the Canada Revenue Agency.

According to the Grand Chief, “We find this development promising and are optimistic that the mediation process will prove to be as successful as previous efforts to resolve issues with federal agencies.”

In addition, mediation was previously utilized and was successful in reaching a Memorandum of Understanding with the CBSA in 2006. That document included provisions to resolve earlier complaints that were filed against the CBSA, such as creation of an Aboriginal Liaison position, increased Mohawk employment and the undertaking of cultural awareness training by CBSA Officers. Those measures were developed in coordination with the MCA and have been implemented.

ADDITIONAL INFORMATION REGARDING DISPUTES WITH CBSA

Hutchins Legal Inc. has been involved in the work related to the MCA’s issues with the CBSA. Currently they are representing an Akwesasne member who filed a complaint against the CBSA before the Canadian Human Rights Commission and this complaint has now been referred up to the Canadian Human Rights Tribunal for a hearing in June.

Also with respect to the border crossing port being moved off of Cornwall Island to the city of Cornwall, Hutchins Legal Inc. is acting as legal counsel for the MCA before the Federal Court in an Action and a Judicial Review contesting the validity of the vehicle seizures and the fines that were imposed beginning in 2009.

Beginning in 2007 Hutchins Legal Inc. represented the MCA and a group of Akwesasne Mohawk Elders in the Federal Court with respect to Old Age Security benefits and enforcement measures that were being taken by Service Canada. In May of 2010 this matter was settled out of court to the satisfaction of all parties with the help of the Federal Court dispute resolution services.

In 2008 Hutchins Legal Inc. filed a Judicial Review on behalf of the MCA in the Federal Court challenging Canada’s Minister of Revenue’s jurisdiction to grant licenses to manufacturers of tobacco products on Akwesasne Territory. This matter was also settled out of court with the help of the Federal Court dispute resolution services in February 2012.