Cases examined by the Special Rapporteur (June 2009 – July 2010)
A/HRC/15/37/Add.1, 15 September 2010
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IX. Canada: Effect of increased Canadian border security on the Mohawk Nation
96. In a letter dated 12 February 2010, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, called the attention of the Government of Canada to information received in relation to the increased Canadian Border Service Agency (CBSA) security at the Akwesasne Port of Entry to Canada and the United States located within Mohawk Nation Territory. The Government of Canada responded in a communication dated 14 April 2010. Furthermore, the Special Rapporteur discussed this case with representatives of the Government of Canada during the 9th session of the UN Permanent Forum on Indigenous Issues in April 2010.
Allegations received by the Special Rapporteur and transmitted to the Government on 12 February 2010
97. In his communication of 12 February 2010, the Special Rapporteur transmitted to the Government information received about the impact of increased Canadian border security on the Mohawk Nation, and he requested that the Government respond to the allegations contained therein in light of relevant international standards.
98. According to the information and allegations received
a) The international border dividing the United States and Canada bisects the traditional territory of the Mohawk Nation, creating multiple jurisdictions for the Mohawk people who have adjusted themselves to what they consider to be a difficult and confusing intrusion into their daily lives as they cross the border many times a day. The Jay Treaty of 1794 recognizes the rights of members of the Haudenosaunee Six Nations, of which the Mohawk Nation is a part of, to cross the United States and Canada border without restriction (art. III) and these rights were reiterated and ratified in the 1814 Treaty of Ghent.
b) On 1 July 2009, the CBSA made the unilateral decision to arm guards at the port of entry at Akwesasne without forewarning or prior consultation with the Mohawk. This action came as a shock to the Mohawk community and the leadership held a series of protests because they considered that the weapons threatened the peaceful coexistence enjoyed by the citizens of Canada, the United States and the Mohawk Nation.
c) The strong reaction by the Mohawk community caused the CBSA to move the port of entry to Cornwall, forcing Mohawk communities on both sides of the border to report to two separate posts of entry when travelling over the border, thereby increasing the length of a cross-border trip from approximately 10 minutes to two hours. This impedes Mohawk people from easily carrying out a variety of daily activities, including attending school, work, medical appointments, and picking up prescription medications, food and water supplies. Mohawk families are also now required to notify the CBSA of funeral arrangements that necessitate a border crossing. The movement of urgent care vehicles has also been hindered by the increased border checks.
d) More recently, the CBSA has started to impound the cars of the Mohawk people who fail to check in at the port of entry at Cornwall and charges one thousand Canadian dollars to release impounded vehicles, a fee that is extremely difficult for many Mohawk to pay. Further, within the last month, the CBSA began to seize community members’ national identity documents, demonstrating aggression towards the community and continuing the pattern of provocation that has distressed the Mohawk people for the last several months.
e) No attempts have been made by the CBSA to consult with or to inform the Mohawk Nation of the border restrictions. This situation has lead to escalating tensions among the Mohawk people, which could undermine the peaceful coexistence brought about by the treaties signed between the Haudenosaunee and the British Crown.
Response from the Government of 16 April 2010
99. The Government of Canada responded to the above information and allegations in a letter of 14 April 2010. The following is a summary of the Government’s response:
a) The Government of Canada is currently engaged in litigation with the Mohawk Nation on issues directly related to those raised in the Special Rapporteur’s communication. Specifically, Grand Chief Timothy Thompson, the Mohawk Council of Akwesasne and the Mohawks of Akwesasne have applied to the Federal Court of Canada for judicial review of the CBSA’s 31 May 2009 decision to close the port of entry at Akwesasne/Cornwall Island.
b) The Federal Court has issued an order staying the application for judicial review until Friday, 27 August 2010. The order notes, in the recitals, that Canada and the Mohawks sought the order mutually in order to facilitate full and open bilateral negotiations on issues within and beyond the litigation.[6]
c) In addition to the order, the Federal Court has also released an Interim Decision related to an application for interim relief filed by the Mohawks, to relieve the hardship they claimed to be facing in light of the closing of the Cornwall Island facility and pending the hearing of their application for judicial review. In reasons released 21 December 2009 Mactavish J. declined to grant the interim relief sought by the Mohawks.[7]
d) The issue of arming border guards is a multifaceted issue that involves many stakeholders, including the Mohawks. When Canada decided in August 2006 to arm Border Services Officers, the CBSA recognized the need to actively consult the Akwesasne community on how to implement the arming of the Cornwall Border Service Officers in a way that addressed the community’s particular concerns. Canada has made multiple good faith efforts to consult and accommodate the Mohawks as the nation-wide arming initiative moved forward. Canada’s willingness to agree to a stay of the judicial review litigation in order to engage in solution-oriented discussions with the Mohawks is a concrete example of Canada’s intentions to continue these good faith efforts. Canada remains committed to arriving at a solution to these ongoing issues.
e) The Government of Canada’s decision to provide its Border Service Officers working at all of its 119 land-based ports of entry into Canada with firearms was made in August of 2006 in order to improve border security, public safety and the safety of the Border Service Officers (the “Arming Initiative”). The port of entry at Cornwall, identified as a high priority site due to high volume of traffic and high risk of illegal activity, was originally scheduled for arming in 2008. The decision to arm Border Service Officers at the Cornwall Island port of entry was part of a larger, national initiative aimed at strengthening public safety and national security. The Arming Initiative was not meant to isolate the Mohawks for any particular or unusual treatment.
f) The Mohawk Council of Akwesasne (the “MCA”), the duly elected government representing the Mohawks of Akwesasne, was advised on 24 May 2007 that the port of entry at Cornwall Island would be armed for the first time in April 2008.
g) In recognition of the particular interests of the Mohawks, the CBSA made numerous efforts to inform and to consult with the Mohawks prior to implementing the Arming Initiative on Cornwall Island. On more than 13 occasions between August of 2006 and May of 2009, discussions concerning the implementation of the Arming Initiative at Cornwall Island took place between the CBSA and representatives of the Mohawks. The CBSA twice delayed implementation of the Arming Initiative in order to continue its discussions with the Mohawks. However, after it became clear that the Mohawks were unlikely to ever agree to the arming of Cornwall Island, the CBSA set a date to implement the Arming Initiative and advised the Mohawks that it intended to implement the Arming Initiative at Cornwall Island on 1 June 2009. Even then, the CBSA gave the Mohawks advance notice of the implementation date and indicated its desire to continue discussions with them, both to further explain the Arming Initiative and to address other community concerns.
h) As extensive consultations were held between the CBSA and the Mohawks, the leaders of the Mohawk community were well-informed of the decision to implement the Arming Initiative, a decision that was not made without forewarning or prior consultation.
i) The Mohawks held a “series of protests,” 1-9 May 2009, in response to the decision to implement the Arming Initiative on Cornwall. These protests were peaceful and largely orderly, however subsequent occasions of protests raised security concerns for the Government. On both 25 and 29 May, a group of Mohawks who identified themselves as “warriors” entered the CBSA building on Cornwall Island, and shepherded a number of individuals who were being questioned regarding their admissibility for Canada out of the CBSA facility and into Canada. On the latter date, Grand Chief Thompson read aloud an MCA resolution opposing the Arming Initiative and a protestor in the crowd advised the CBSA that this was their “first notice”.
j) On 30 May 2009, approximately 200 protestors gathered at the CBSA facility to hear Grand Chief Thompson once again read the MCA resolution opposing the Arming Initiative and advise CBSA officials that this was their “second notice”.
k) On 31 May 2009, several hundred protestors from the Akwesasne community gathered at the CBSA facility. Grand Chief Thompson and others presented the CBSA with a “third and final notice”. Bonfires were set at several locations surrounding the CBSA facility. Individuals wearing clothing marked with “warrior” insignias shone lights at surveillance cameras, interfering with efforts to monitor the area around the CBSA facility. The CBSA closed the Cornwall Island port of entry and to evacuated the facility due to safety concerns stemming from the protests.
l) Following the evacuation of the Cornwall Island facility on 31 May 2009, and in light of the large volume of traffic seeking to cross the border at Cornwall, the CBSA opened a temporary port of entry at the northern base of the Three Nations Bridge in the City of Cornwall (the Relocated Facility) on 13 July 2009. During the interim period, the CBSA facility on Cornwall Island remained closed, and persons travelling from the United States were directed to enter Canada through alternate ports of entry located in Prescott, Ontario or Dundee, Quebec. Since that date, all travelers from the United States to Cornwall Island have been required to report their entry into Canada at the Relocated Facility, before doubling back to Cornwall Island. This requires driving approximately three kilometers past Cornwall Island into the City of Cornwall, which translates into approximately three extra minutes of driving.
m) While some delays have occurred at the Relocated Facility, particularly during summer weekends and other holidays, CBSA monitoring—carried out in the ordinary course of business at ports of entry in Canada—reveals that the majority of the wait times at the Relocated Facility are inconsequential. From 14 August 2009 to 4 October 2009, CBSA monitoring concluded that 86% of the time there were no delays; 10% of the delays were 20 to 55 minutes, and roughly 3% of the time, the wait exceeded 60 minutes.
n) Since the establishment of the Relocated Facility in the City of Cornwall, the CBSA has also taken concrete steps to reduce wait times, including: installing mirrors to allow border officers to view and query license plates in a more expedient manner; the presence of managers 24 hours a day to deal with complaints from travelers, who monitor officers’ performance at the primary inspection lanes when border wait times are estimated to be over twenty minutes; escorting commercial traffic from the primary inspection lane for further processing. Also, as of 6 April 2010, the Relocated Facility will have a dedicated lane for domestic travelers arriving from Cornwall Island.
o) The CBSA has repeatedly offered, and in fact has been facilitating, the reporting requirement and release procedures for the Akwanese Mohawk Police Service, emergency response personnel, funerals, Mohawk Security Guards, school children travelling by school bus and snow removal equipment, provided that the relevant personnel names and dates of birth and vehicles’ registration numbers and licence plates are filed in advance with the CBSA. However, as of 16 October 2009, CBSA had not received an official response from the MCA to formalize this arrangement. Nonetheless, the CBSA has continued to consider requests for accommodation on a case-by-case basis, and has advised that relief from physically reporting (presenting) to the CBSA at the Relocated Facility will be given to residents of Akwesasne entering Canada as part of a funeral processions and related ceremonies on Cornwall Island. CBSA communicated this accommodation to the Mohawks on 25 September 2009.
p) There has been no violation of the Mohawks’ mobility rights due to these circumstances. The Mohawks of Akwesasne, who are Canadian citizens, are permitted to enter and leave Canada. The fact that all persons entering Canada are required to report to a customs facility does not violate mobility rights protected by section 6(1) of the Canadian Charter of Rights and Freedoms which states that “Every citizen of Canada has the right to enter, remain in and leave Canada.”
q) There have not been any seizures of the national identity documents of Mohawk community members. This allegation is false.
r) Regarding the rights referred to by the Special Rapporteur stemming from the Jay and Ghent Treaties, confusion as to the legal status and interpretation of the provisions of the Jay Treaty leads some to take the position that the treaty provides for unrestricted transit across the Canada-U.S. border for Aboriginal people (identified as “the Indians” by the treaty) and their goods. Even were the Jay Treaty still in force, it does not provide Aboriginal people with an exemption for any and all goods transported, for trade purposes, across the border. Rather, any rights concerning “free passage across the border” are limited to personal goods in the possession of Indians and “peltries” in the possession of anyone. However, neither treaty has any legal effect as they have not been implemented in any current domestic Canadian legislation as required by Canadian law. The treaties and the provisions in them dealing with the movement of goods across the Canada-US border have been superseded by recent treaties between Canada and the United States.
s) Moreover, the question of the duty free transit of goods by the Mohawk across the US-Canadian border has been resolved by both the Supreme Court of Canada [8] and the Inter-American Commission on Human Rights [9], both of which found, respectively, that there was no aboriginal right to bring goods across the border duty free, and that the imposition of taxes did not violate the Mohawk right to culture. Akwesasne residents who come through the Cornwall port of entry, however, are entitled to benefit from the Akwesasne Residents Remission Order, an order which allows for the remission of duties paid or payable on goods acquired in the United States and imported into Canada by Akwesasne residents for personal or community use. This remission order facilitates cross-border contact between Mohawk communities on both sides of the international border.
t) With respect to the issue of the impounding of the cars of Mohawk community members, the CBSA, in fulfilling the Government’s mandate to ensure public safety and national security, requires all persons entering or leaving Canada to report (present themselves) to a CBSA officer without delay when entering Canada. Failing to do so results is a violation of the Customs Act which authorizes the CBSA to seize the vehicle that was used to transport persons into Canada in contravention of the Customs Act. In accordance with subsection 117(1) of the Customs Act, the seized vehicle can be released upon the payment of an assessment, which varies depending on whether the vehicle has been used in previous violations of the Customs Act. The assessment for a first violation is $1000.
u) Due to the fact that the port of Cornwall is the 11th busiest land port of entry into Canada and is considered a high risk for contraband, the CBSA determined that resuming normal enforcement of the reporting (presentation) requirements was necessary to ensure public safety and national security. On 1 September 2009, the CBSA specifically advised the Mohawks that it would be resuming normal enforcement of the reporting (presentation) requirements at the Relocated Facility in mid-September 2009. On 18 September 2009, the CBSA began seizing vehicles that were used to transport persons into Canada but that failed to comply with the duty to report. Thus, while the information received by the Special Rapporteur is accurate in that the CBSA did seize vehicles and did require the payment of an assessment to have the vehicle released, these actions were taken pursuant to the statutory authority of the CBSA for the general enforcement of the border and were carried out at Cornwall only as a result of the failure of members of the Mohawk community to comply and after ample warning was given to the community.
v) Following a communication from Chief Karla Ransom about the seizure of vehicles, the CBSA advised the Mohawks on 23 September 2009, that the CBSA was prepared to provide a 24-hour “grace period” in which persons could report (present themselves) to a CBSA officer at the Relocated Facility without enforcement action being taken for any previous failure to report (present). The CBSA also committed to not use information collected on vehicles failing to report (present) at the Relocated Facility between 14-23 September in any subsequent enforcement action. CBSA actions in this regard were both lawful and fair.
w) The CBSA also instituted several measures to facilitate cross-border contact between Mohawk communities and accommodate the high number of Akwesasne residents who regularly use the border crossing at Cornwall to travel within their community. This is particularly important for Akwesasne residents who live on the Ontario side, who must pass through a United States port of entry and United States territory in order to access the Quebec portion of Akwesasne. Returning to Cornwall Island involves stopping at the Canadian port of entry located on Cornwall Island. In addition to the Akwesasne Residents Remission Order, the main measure of accommodation is a dedicated primary inspection lane for Akwesasne residents aimed at providing a better traffic flow for members of the community. The hours during which this dedicated lane is open have increased over the years in response to the Akwesasne community’s request.
x) For roughly the past 30 years, CBSA has hired Akwesasne community residents (constituting Akwanese Mohawk Police Service) to secure the perimeter of the customs plaza and its buildings at the Cornwall port of entry. Mohawk security officers are not armed, nor do they have any training or authority to assist in CBSA enforcement matters. The Akwanese Mohawk Police Service maintains a small office in one of the CBSA customs buildings, the main function of which is to investigate potential impaired driving offences and to respond to the CBSA’s interception of persons wanted by warrants.
y) The CBSA, along with the MCA, the St. Regis Tribal Mohawk Council and the Mohawk Nations Council of Chiefs has established the CBSA/Cornwall Taskforce (the “Taskforce”) to provide a positive forum within which to discuss CBSA border operation issues at Cornwall affecting the local Mohawk residents. The Taskforce met for the first time on 30 July 2009, and continued to meet throughout the summer of 2009. The CBSA tried to continue discussions with Taskforce members throughout September and October 2009, but meetings scheduled to take place on 22, 24 and 25 September 2009 were abruptly cancelled by the Mohawk members of the Taskforce. A meeting was held on 5 October 2009, chaired by CBSA Executive Vice-President Luc Portelance and CBSA Vice-President Barbara Hébert, to discuss measures to address specific concerns raised by Mohawk members of the Taskforce regarding the reporting of emergency services personnel, school children, funerals and Mohawk security guards. Unfortunately, this meeting ended without substantive discussion of these issues.
z) In addition to providing the above information, in its communication, the Government of Canada gratefully acknowledged the Special Rapporteur’s offer to facilitate a dialogue between representatives of the Canadian Government and the Mohawk Nation in conjunction with the ninth session of the United Nations Permanent Forum on Indigenous Issues in April 2010. However, in light of the ongoing litigation and related discussions between the parties, Canada respectfully declined this offer, but proposed as an alternative a more general meeting between the Special Rapporteur and representatives of the Canadian Government, to discuss issues pertinent to Canada. The Government of Canada reiterated the fact that it takes the concerns of the Mohawk Nation with respect to the Arming Initiative and the relocation of the port of entry from Cornwall Island to the City of Cornwall seriously. Canada remains committed to pursuing out of court, settlement-related discussions with the Mohawks in the context of the judicial review litigation currently unfolding.
Observations of the Special Rapporteur
100. The Special Rapporteur thanks the Government of Canada for its detailed response to his communication and to the allegations contained therein. The Special Rapporteur remains concerned about the reported tensions among Mohawk caused by the arming of Border Security Agents and subsequent events, an issue that was raised in both the Special Rapporteur’s communication and in Government’s written response, and that was discussed with representatives of the Government at the meeting in New York at the 9th session of the Permanent Forum on Indigenous Issues in April 2010.
101. The Special Rapporteur takes note of Government’s position on the Jay Treaty, which differs from that of representatives of the Mohawk people. Without presently providing views on that issue, the Special Rapporteur would like to highlight article 36 of the UN Declaration on the Rights of Indigenous Peoples, which states:
a) Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
b) States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.
102. Additionally, Article 37 affirms that “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”
103. The Special Rapporteur urges all parties concerned to continue good faith efforts to arrive at suitable arrangements for the crossing of Mohawk people across the border that bisects the Mohawk Nation. The Special Rapporteur intends to continue to monitor the situation and in the future may make further observations.
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NOTES
[6] A copy of the Order was included in the Government response as Annex A.
[7] A copy of the Interim Decision was included in the Government response as Annex B.
[8] Mitchell v. M.N.R., 2001 SCC 33 [2001] 1 S.C.R. 911.
[9] Grand Chief Michael Mitchell v. Canada (2008), Inter-Am. Comm. H.R. No. 61/08.