Periodical
Union of B.C. Indian Chiefs Newsletter (March/April 1993)
- Title
- Union of B.C. Indian Chiefs Newsletter (March/April 1993)
- Is Part Of
- 1.06-01.08 Union of BC Indian Chiefs Newsletter
- 1.06.-01 Newsletters and bulletins sub-series
- Date
- March 1993
- Language
- english
- Identifier
- 1.06-01.08-04.01
- pages
- 8
- Table Of Contents
-
IN THIS ISSUE...
Message from the President............p. 2
Education Update ............................ p. 3
Tribute to Philip Paul........................p. 4
Legal Update.......................................p. 5
Specific Claims....................................p. 6
Resource Centre Update .............. p. 7 - Contributor
- Chief Saul Terry
- Ray Hance
- Wendy Ancell
- Type
- periodical
- Transcription (Hover to view)
-
Union of B.C. Indian Chiefs
NEWSLETTER
MARCH/APRIL 1993
Our Fishery: "The genocide must stop!"
Over the last few weeks and especially so since the last river fishery season the rhetoric on Indian Fishin
escalated to high-decibel levels.
Special interests, such as the Fishermans Survival
Alliance, put forth the line that fair arrangements
with Indian Peoples are "racist". The fact is
that the rights of our Peoples, whether they are
hunting, fishing or land rights, are neither racist nor "special".
Our rights are legitimate, constitutionally- recognized rights arising
from the fact that we are the original peoples in British Columbia
and we continue to live in our homelands as we have for hundreds
of generations. We view ourselves as distinct Peoples and we
expect to be recognized and respected as such.
It follows, therefore, that the Indian Fishery in this province
is as legitimate, if not more so, than the current non-native fishing
regime. The question is not how much fish do Indians want to take
but how much of our fishery are Indian Peoples willing to share.
For non-native Canadians, the fish resource indeed falls
under the jurisdiction of Canada. However, the question of
jurisdiction has never been settled with Indian Peoples in this
province. A resolution of this issue is urgently needed but it
certainly cannot be made under the auspices of enhancing food fish
permits, as is currently being promoted by the DFO. The only
appropriate process for achieving a settlement is Nation-to-Nation
treaty-making between our respective Nations and Canada.
The dire economic conditions which our Peoples face
cannot be underestimated or ignored. When the economic guts of
our Indian communities were torn out at the end of the last century
by government policies and settlers' greed, few non-natives objected
or cared. It is ironic that now, when the task of economic renewal
should begin, non-native greed and fear is generating a chorus of
nay-saying and blame.
The settler governments i n colonial times made
commitments to our people in the name of the Queen. We have not
forgotten our history, despite the laws passed by Canada and
British Columbia to erase the Land Title issue from our minds and
hearts. It is time that the promises of the Queen are made good
through treaties based upon Nation-to-Nation principles mutually
agreed upon — principles which will ensure Indian Peoples'
survival many generations into the future.
To the citizens of our Indian Nations and to all right-minded
Canadians, no amount of fear-mongering, racist appeals, or efforts
M A R C H / A P R I L 1993
to discredit our rights can bury our legitimate economic grievances.
For too long our People have been shunted aside, bullied, ridiculed,
and dictated to through legislation, policy directives and judicial
orders.
Our Indian Peoples' human rights have been violated by the
refusal of Canada to recognize our Sovereign political, economic,
social cultural and spiritual rights — our Nations' right of selfdetermination. The genocide must stop! The Aboriginal Title and
Rights of Indian Peoples within our respective homelands must be
recognized now and into the future. No fair minded individual
should disagree.
UBCIC: March 8, 1993
SPECIAL EDITION
IN THIS ISSUE...
Message from the President
p. 2
Education Update
p. 3
Tribute to Philip Paul
p. 4
Legal Update
p. 5
Specific Claims
p. 6
Resource Centre Update
p. 7
Page 1
MESSAGE FROM THE PRESIDENT:GEORGE MANUEL INSTITUTE
OF INDIAN GOVERNMENT
O
n February 8th, Chiefs
Kathy Wallace, Lawrence
Pootlass and Archie Jack
accompanied me to Ottawa to raise
the issue of our aboriginal and
treaty right to education.
Unfortunately Chief Rose Charlie
was unable to go. Rhonda Johnson
filled in at the very last moment.
Rhonda, for those that do not
know, is an articling law student
who will be working with the Union of B.C. Indian Chiefs over
the next year.
As a group we met with members of parliament for the
New Democratic Party, Liberal Party, and the Chairman of the
Standing Committee on Aboriginal Affairs, a sitting M.P. for
the Conservative government. We had requested a meeting
with Minister Tom Siddon but he suggested we meet with one
of his officials, so we declined. As chiefs we wished to meet
with elected members of parliament. The major issue is that of
education.
1. The M . T . A . lapsed last June and we need a new
approach to any future agreements. We indicated that any
agreement must clearly recognize the authority of our people in
the area of education. This would permit greater control by and
accountability to our respective Peoples. With recognized
control we would also have greater control to address the
special needs of our students. The matter of tuition contribution
disparity between the public school system and the on reserve
school system was also cited. This is where the public school
system may receive $4000.00 per pupil while the on reserve
school tuition may be half of that at $2000.00 per pupil.
2. In post secondary education we demanded that all of
our students who qualify for entrance to a post secondary
institution should be funded. We mentioned here the fact that
many students did not apply because they had heard that there
were no funds available. Many students are also forced to live
in substandard conditions due to the cost of rent, food and
transportation plus other charges, (child care) etc.
We also reported that Indian Affairs was carrying out
post secondary education reviews where they demanded to
review the files of the students. If the bands did not cooperate,
D.I.A. threatened funding cuts or termination of funding.
3. Other issues brought to the attention of M.P.'s were
taxation, our objection to any registration of the U.B.C.I.C. as
lobbyists, the fishery is a right, not a commercial food fish
privilege subject to the laws of Canada and British Columbia.
More meetings will be had with parliamentarians over
the next few months so that our position that education is an
aboriginal and treaty right will clearly be understood.
The support for our citizens on this issue is very
important. We cannot permit the government to abdicate its
fiduciary obligation to our future generations.
Page 2
Grand Chief George Manuel
passed away during the Union of B.C.
Indian Chiefs' 21st Annual General
Assembly in 1989. In the years since his
passing, the Union has wanted to honour
George's life, works, and legacy in a
special way.
Throughout his life, George
Manuel worked to advance the cause
of aboriginal rights and self-determination in our communities
and at the national and international levels. George set very
high professional and political standards for leadership. He
believed that education was the springboard for political action
and that both were essential for indigenous peoples to achieve
self-determination in their homelands.
In 1990, Chief Saul Terry approached the Manuel family
for approval of the idea of establishing an "Indian Government
Institute" as a living memorial to George Manuel.
Representatives of the Manuel family indicated their approval.
At U B C I C ' s 23rd Annual General Assembly in 1991,
delegates ratified a discussion paper as the first step to
establishing the George M a n u e l Institute of Indian
Government. The discussion paper proposed that the Institute
be established along the lines of the Saskatchewan Federated
Indian College — an independent, Indian-controlled institute
affiliated with an established university for degree-granting and
fund-raising purposes.
The U B C I C Resource Centre library will become the
Institute's hub for teaching, research and publishing activities.
In keeping with George Manuel's values, commitment and lifelong work, the Institute will focus on four areas: 1) Political
Development & L e a d e r s h i p ; 2) Indian Government
Administration: 3) Economic & Social Development: and 4)
International Relations.
Under the direction of the U B C I C Chiefs' Council, the
overall development plan for the Institute is being carried out
by Chief Bernard Charles (Semiahmoo) and Rhonda Johnson
(articling student).
While this planning is underway, the Chiefs' Council
has approved the start-up this spring of an Institute workshop
on First Nation Leadership Training. The workshop will cover
such topics as: aboriginal title and rights, the Royal
Proclamation, the Indian A c t , land management, fiscal
management, labour relations, duties and obligations of the
Federal Crown, and introduction to First Nation organizations.
The Chiefs' Council has also approved a "First Nation
Jurisdiction for First Nation Justice Conference jointly
sponsored by the First Nation Tribal Justice Institute and the
George Manuel Institute of Indian Government. It is scheduled
for June 1, 2, 3, 1993 in Mission, B.C.
For more information about the George Manuel Institute
of Indian Government, contact the Union of B.C. Indian Chiefs,
at 684-0231.
M A R C H / A P R I L 1993
STEERING COMMITTEE ON INDIGENOUS
EDUCATION
T
HE C O M M I T T E E emerged from a series of meetings that followed the cut-backs in post-secondary education in 1989. We have
been working for the past year in preparation for a lobby in Ottawa. The lobby was set for the week of March 8th - 12th but was
postponed when the Prime Minister announced his imminent resignation. As the Union receives no funding for educational
matters, the local community and tribal councils have been paying the expenses of their representatives.
A W R I T T E N P R E S E N T A T I O N has been prepared by the Tsilhqot'in Tribal Council and approved by the committee. This is
an all-purpose paper that will serve as a presentation to Parliamentary Committees and to the Human Rights Commission, as information
for Aboriginal Affairs critics and the native press, and as briefing notes for the lobbyists.
O U R POSITION is that we accept the principles and recommendations on education adopted by the Assembly of First Nations
in 1991, a copy of which is attached. We uphold and maintain the principle of the international relationship between our nations and
Canada, together with the primacy of our relationship with the Parliament of Canada: this means that any involvement with the provinces
or with local or independent school boards must be secondary and at the discretion of the local communities involved. We insist that
funding for education shall be transferred from Ottawa only according to the direction of the local communities. We further insist that
our jurisdiction over education extends beyond the small reserves that have been established without our consent; it extends to all of our
people in all of our traditional territory. We are convinced that the only fair policy in post-secondary education is that any student who
is recognized by his (or her) local community as being qualified for further education must be funded.
OUR PURPOSE is to require the Parliament of Canada to return to the indigenous nations and communities the jurisdiction over
education that was stolen from us about a hundred years ago. The attempt by Canada to control the public education of our people is
illegal and has failed badly. The effects of the residential schools will be with us for several generations to come and it is clear that the
provincial system is not serving us well. We have no doubt that matters will not improve until our right to control our own public education
is recognized, respected and honoured. A draft bilateral agreement on education that would replace the Master Tuition Agreements has
been sent to Ottawa. For further information contact Dianna Rai at the at the Union of B.C. Indian Chiefs Vancouver Office at (604)
684-0231.
Ray Hance, Chairman
C A L E N D E R OF E V E N T S
Chiefs Committee on Claims - April 15-16, 1993, Halifax, Nova Scotia
Conyat 3rd Annual Traditional POWWOW - April 16, 17, 18, 1993, Merrit, B.C., Nicola Valley
Memorial Arena. For more information contact Richard Jackson tel: (604) 378-5107. Absolutely no drugs or
alcohol allowed.
Union of B.C. Indian Chiefs Lobby on Education - April 26th-30th, 1993, Ottawa, Ontario.
Native Intercampus Student Network Rally on Education - April 27th, 1993, @ D.I.A. B.C.
Regional Offices (1550 Alberni Street) 10:30 a.m. and speakers beginning at noon. Contact Mike Desjarlais
(NEC) 873-3761 (messages only) Home: 251-1270 or Oscar Swanson at 877-0329. Fax: 873-9152 Attention:
Native Indian Student Network.
First Nations Jurisdiction for First Nations Justice Conference - June 1, 2, 3, 1993, Mission,
B.C., Toti:lthet Centre.
For more information on any of these events please contact the Union of B.C. Indian Chi
Vancouver Office at (604) 684-0231.
M A R C H / A P R I L 1993
TRIBUTE TO PHILIP PAUL
George was contemplating a change of employment
I did not know that responding to a request to fill a job
and he was consulting with Philip on the pros and cons of the
vacancy, through a mutual friend, would change the course of
move. Years later George confided to me that he often sought
my life. Perhaps that was always the way it was for people
Philips counsel. Philip advised George when he served as
who were in contact with or worked for Philip Paul.
President of the National Indian Brotherhood and afterward
It certainly was the case for me in 1968, when the
when George was elected president of the Union of B.C.
challenge was offered to instruct an art class totally comprised
Indian Chiefs.
of Indian people. I was newly graduated from the Vancouver
Philip was involved i n the Indian land question
School of Art and Philip placed his confidence in me despite
throughout his life. Some may recall that he was clubbed over
my inexperience. He left the structure of the program in my
the head on the steps of parliament at Ottawa. It was during
hands. Philip attended to the frustrating administrative
one of our demonstrations against the patriation of the
requirements. Our course of the studies was approved and
constitution. At the same time, Philip was totally involved
there was no shortage of mature students.
with culture and
When Philip
education. He was
interviewed me for the
instrumental in building
position he said, as part
Lau Welnew Sculhautw
of the sales pitch, that
on the Tsartlip Reserve.
Victoria was a great
place to be, especially
In the past four years,
during the winter
Philip, once again
months, because it never
became more active with
really got exceptionally
the Union of B.C. Indian
cold nor did it snow. As
Chiefs. After being
a weatherman, Philip
r e t i r e d from his
may not have done well
Saanichton School Board
because that winter
position, Philip gave the
about two feet of snow
Union of B.C. Indian
came down.
Chiefs the benefit of his
wit and wisdom on many
It blanketed the
occasions. He chaired
small cottage that Philip
m
any of our
and his wife Frances so
conferences;
our
generously provided for
provisional
government
me to live in. It was
conference held in
located behind their
Mission
on April of 1992
home on Clarke Road in
and
our
latest
conference
Brentwood Bay.
Philip Paul and George Manuel leading the Constitution Express march
on
October
21,
22, 23,
When Philip
in Ottawa, 1981.
1992 were both chaired
hired me I really was
not involved in Indian politics but the issues of education,
housing, employment, administration and funding were often
discussed in meetings at the Institute o f Adult Studies.
Although I did not know it at the time, my political education
had begun under the tutelage of one of the most politically
astute Indian leaders in the province. Philip was involved with
the North American Indian Brotherhood and he along with
other Chiefs founded the Union of B.C. Indian Chiefs in 1969.
That was the year that Philip introduced me to George
Manuel. Philip also invited me to join them for a lunch
meeting in the cafeteria of the Institute of Adult Studies (now
Camosun College).
by Philip despite his failing health.
Philip Paul's honours and achievements are numerous:
founding member and Grand Chief of the Union of B.C.
Indian Chiefs, elected chief of Tsartlip Band, athlete, leading
educator, political advisor, loyal friend and most of all a
champion of the ordinary people of our Indian Nations.
His death on the evening of December 21, 1992 has left
a numbness in my heart and soul that will not soon depart but
one thing is certain. Philip Paul continues to influence and
present challenges for vision in my life.
Chief Saul Terry
Page 4
M A R C H / A P R I L 1993
LEGAL UPDATE
Fishing Cases
There have been two recent trial decisions related to the
aboriginal right to fish. The first was the decision of Judge
Saunderson of the Provincial Court of B.C. in Regina vs. Dick,
Court No. 16555. Judge Saunderson held that the Lekwiltok
tribe could not establish an aboriginal title or right over the area
in which Ralph Dick was fishing, because he held that at that
time the Crown asserted sovereignty the Lekwiltok were not
exclusively occupying that area. Although it was unnecessary
for his decision, he went on to hold that barter was only
incidental to the Lekwiltok's existence before the coming of
Europeans, and was not the focal point of their attempt to earn
a livelihood. Based on these findings, Saunderson went on to
reject the ruling of Judge Selbie in Vanderpeet and apply
McEachern's decision in Delamuukw to decide that pre-contact
aboriginal barter does not give rise to an aboriginal right to sell
fish in a modern context. In addition, ignoring the ruling in
Sparrow, he held that the aboriginal right to sell fish, i f it
existed, had been extinguished by the B . C . Fisheries
Regulations. The decision will be appealed.
The second case is the decision of Judge Collier of the
Federal Court, Trial Division in Cecil Reid et al. v. Her
Majesty the Queen in Right of Canada & DFO et al. In this
case the Heiltsuk people asserted that their aboriginal fishing
right entitled them, as of right, to a license to carry on their roe
on kelp fishery for food, ceremonial and commercial purposes.
The Court rejected the Heiltsuk people's arguments and held
that because their pre-contact fishery was not a market system
they had not established that commercial harvesting of roe on
kelp was ever part of their aboriginal right.
In both of these decisions the court adopted a frozen
rights theory, ignoring the decision of the Supreme Court of
Canada in Sparrow. Many of the issues raised in both of these
cases are before the B.C. Court of Appeal in the 6 fishing
appeals. The decisions in those appeals are expected in late
May, 1993.
Taxation Update
In April of 1992, the Supreme Court of Canada released
its ruling in Williams v. Canada. The Court ruled that the
unemployment benefits received by an Indian person were
exempt from taxation i f that person was eligible for those
benefits due to employment income which was tax exempt
under section 87 of the Indian Act. Although the case itself
was a victory, the wording of part of the Judgement has created
some uncertainty as to whether or not it can still be assumed
that the income of an Indian person will be exempt from
taxation i f their employer is located on Reserve :
"It has been assumed by the parties that the previous
employment of the appellant which gave rise to the
qualification for unemployment insurance benefits was
also located in reserve, since the two employers in question
were located on reserve. This question must be reexamined
in light of our determination that this conclusion cannot
safely be drawn from the principles of conflict of laws."
[at pages 23 to 24, emphasis added].
As a result of the Williams decision, revenue Canada
released a revised policy with respect to the application of the
Indian Act tax exemption on December 29, 1992. Revenue
Canada maintains that:
"... the salary of an Indian will no longer be exempt merely
because it is paid by an employer situated on a reserve. The
principal factor connecting income to a reserve will now be
where the duties are c a r r i e d out. The location of the
employer w i l l continue to be a factor, but other factors
connecting the income to the reserve will also have to be
present for the income to be tax exempt..." [emphasis added]
We note that there is nothing in the Williams decision to
support the contention that "the principal factor connecting
income to a reserve will now be where the duties are carried
out". This is nowhere stated in the decision. In fact the Court
specifically states that with the facts before them it:
"... would not be an appropriate case in which to develop a test
for the situs of the receipt of employment income. A l l the
potential connecting factors with respect to the qualifying
employment of the appellant point to the reserve. The
employer was located on the reserve, the work was performed
on the reserve, the appellant resided on the reserve, and he was
paid on the reserve..."
No doubt the questions left unresolved by the Williams
decision will be the subject of further litigation. We are aware
of one case decided since the Williams decision which begins
this process of determining what factors w i l l provide a
sufficient "connection" to the Reserve to attract the benefits of
section 87.
In Brenda McNab v. Canada the Court was asked to
decide whether the income of a Native woman employed by the
Saskatchewan Treaty Indian Women's Council was exempt
from taxation. The evidence revealed that Ms. McNab was a
treaty Indian. Her employer, the Saskatchewan Treaty Indian
Women's Council, was found to be an organization which
worked "...with and for women and children on Indian reserves
in Saskatchewan for their health, protection and betterment."
The Court found that the driving force behind the Council was
Isobel McNab who resided on the Gordon Indian Reserve.
Some of the Council's records were stored at Isobel McNab's
residence. The Council also had an office and a telephone off
reserve in Regina. The letterhead of the Council listed the
Regina address and telephone number. A l l ordinary
administration and clerical work was found to be conducted in
the Regina office while financial records were taken out to the
Gordon Reserve and cheques were signed there by Isobel
McNab about twice a month.
The Court analyzed a number of factors to determine
whether the income of Ms. McNab was "situated on the
Reserve." The first of these was the employer's location. The
Court found that the registered office of the employer was on
Reserve. Similarly, the directing mind of the operation, Isobel
McNab, lived on reserve. The working ordinary day-to-day
administration of the Council, however, took place in Regina.
The Court found that: "The purpose of the Council was to assist
Indian women on the reserves and the evidence is clear that the
Council did so and that its operations off the reserve were
ancillary to its work on the reserves. In these circumstances I find
CONTINUED PAGE 8
M A R C H / A P R I L 1993
Page 5
SPECIFIC CLAIMS RESEARCH UPDATE
The past year has been a very busy time for U B C I C ' s
Specific Claims Research Program. The number of specific
claims being researched by Thalassa Research and Mandell
Pinder on behalf of U B C I C member bands has increased
100% since 1990-91. There are now over 100 specific claims
on our active workplan for 1993-94!
Although the workload has increased dramatically, we
completed research, legal analysis and statements of claim
on 12 specific claims in 1992-93. In addition, 4 claims were
submitted in 1992-93 to the D I A Specific Claims Branch and
other agencies for settlement. The Union is proud that this
high level of service and productivity for member bands has
been maintained over the past five years, despite minimal
increases in research funding.
In the past year, the Union has initiated discussions
w i t h the Province o f B r i t i s h C o l u m b i a ( M i n i s t r y o f
Aboriginal Affairs; Heritage Conservation Branch, Ministry
of Tourism & Culture) regarding settlement o f "Douglas
reserve" claims and protection of graveyards, burial areas
and sacred sites under First Nation jurisdiction. We are
hopeful that these efforts will bear fruit over the next six
months.
A national Research Directors meeting and workshop
was held in Ottawa on February 23-25, 1993. Peter Parker
(Thalassa) and I attended the meeting. Peter attended the
research skills workshop sessions and used the rest of his
time in Ottawa to do specific claims research for member
bands at the Treaties & Historical Research Centre (DIA)
and the Public Archives of Canada. (Peter brought back 30
lbs. of file documents!) I attended the Research Directors
meetings, w h i c h dealt w i t h s p e c i f i c c l a i m s p o l i c y
developments, research funding and information exchange. I
also attended workshops on right-of-way claims, accessing
trust fund accounts, and the Saskatchewan Treaty Land
Entitlement Framework Agreement.
The Chiefs Committee on Claims will be meeting in
Halifax, Nova Scotia on A p r i l 15-16, 1993 to review the
work of the Federal Government/First Nations Joint Working
Group on Claims Policy. If the J W G is successful, there
could be a new specific claims policy in 1994.
Finally, congratulations to the Tsartlip Band for
achieving a successful negotiated settlement of their "Goudy
R o a d " claim. The late Philip Paul was instrumental in
moving this claim forward " o n the ground" and at the table.
His inspiration and leadership will be missed.
Dan Gottesman, Ph.D.
U B C I C Research Director
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Page 6
M A R C H / A P R I L 1993
RESOURCE CENTRE UPDATE
Resource Centre Move
Microfilming Workshop
The Resource Centre was finally moved up to our new
seventh floor location over the December 5th weekend. The
collection fits into the new space as i f it was designed for
the Library. Operation of the Library day-to-day functions can
be now done more efficiently and the ability to assist users with
their research requirements has been enhanced because of the
improved layout and arrangement of the Library.
I will be attending a day long workshop on Preservation/
Conservation Microfilming on March 10th. Because we want
to preserve documents and conserve space, microfilm will
become an even more important format as time goes on.
Collection Development
The continued growth of the Library collection is
evidenced in the new book displays on top of the shelving units
and the overflowing shelves of new material in my office. It is
almost a full-time job just trying to keep on top of the
information explosion around aboriginal issues.
I am also trying to improve the "Quick Reference" files
so that the types of information asked for again and again is
quickly accessible.
The verbatim transcripts from the first two rounds of the
Royal Commission on Aboriginal Affairs are available on a
computerized full-text retrieval database and we hope to
purchase this database in the new budget year. This program
will permit individual analysis for purposes of education and
research.
I also hope to add to the Library collection in the new
budget year a very valuable service called " M i c r o l o g " .
Government documents are time consuming to acquire and
catalog , difficult to keep up on, and take up a great deal of
space. The Special Collection on Native Peoples within the
Microlog service provides all government documents on native
issues in microfiche format through a single subscription
service. The collection comes with its own indexing so that
documents are easily retrievable.
Automating the Resource Centre Catalog
In January, I put a great deal of time into researching
software programs available for automating the Library catalog
as well as other Library functions such as acquisitions. The
collection has grown so large that manually cataloguing
materials and accessing them with a printed catalog is no
longer efficient. In fact, we simply can not catch up or keep up
with cataloguing using a manual system. It was decided to
acquire a software program called " I N M A G I C PLUS for
Libraries" as soon as funding is made available by the new
budget. This program also allows the option of providing online access via computer modem to our Library catalog in
future. I N M A G I C PLUS is also being considered for records
management of the U B C I C administration and research files.
M A R C H / A P R I L 1993
First Nations Library Workshop (Information
has been provided to your band/tribal council)
The British Columbia Library Association's First
Nations Interest Group is sponsoring, in co-sponsorship with
the UBCIC and the Gitskan Wet'Suwet'en Hereditary Chiefs, a
one day pre-conference workshop on First Nations Libraries at
the B C L A Annual Conference in Penticton on April 22. This
workshop will be of interest to School Band Library staff as
well as staff from Bands or Tribal Councils which have or wish
to set up libraries. I will be conducting a segment of the
workshop on running a small library and anyone interested can
call me for more information at our Vancouver office number
(684-0231). Some funding may be available to assist with
costs. Registration forms have gone to Band and Tribal
Council offices. Late registrations can still be sent in but do it
as soon as possible.
Resource Centre Policy
Resource Centre policy is on the agenda for the Chiefs
Council meeting March 1 l-13th. I will be making some
recommendations for policy changes which I will report in the
next Newsletter.
In the meantime i f you have any information queries which I
can help with or there is anything which you would like me to
specifically report on in the next Newsletter please call me. I
hope in subsequent Newsletters to be able to provide a short
bibliography of new key titles published on aboriginal issues
and information about where these documents can be acquired.
Wendy Ancell
U B C I C Librarian
Page 7
LEGAL UPDATE
(CONTINUED FROM PAGES)
that the employer's location was on the Gordon Indian Reserve."
The Court found that the location of the appellant's work
was off Reserve in Regina. The appellant's legal residence was
found to be the Gordon Indian Reserve, although she lived
approximately 5 days of each week of the year in Regina. The
Court found that the place of the appellant's income payments was
mainly on Reserve, although payment sometimes occurred in
Regina.
The Court then concluded that Ms. McNab's employment
income was located on Reserve. Of particular importance appears
to be the fact that the purpose of the employer (the Council) was
solely to benefit Indian people on Reserve: "The employer's
location was on the Gordon Indian Reserve. The appellant worked
partly in Regina and partly on various reserves all over
Saskatchewan... she attended upon Isobel McNab in order to have
cheques signed and at other times parts of her work were
conducted on other reserves when she attended upon Isobel
McNab. The appellant's residence was on the Gordon Indian
Reserve. Seventy-five percent of the time she was paid on the
Gordon Indian Reserve. All of her work was with Indians and
all of her work was on the instructions of an employer whose
sole purpose was to benefit Indians on reserve." (emphasis
added)
The case is useful in that it provides authority that the
Williams decision does not require that work be physically
performed on the Reserve in order to attract the exemption
provided by section 87 of the Indian Act. One "connecting factor"
of significance will be whether or not the purpose of the work is for
the benefit of Indian people on Reserve.
S p e c i f i c C l a i m s : T s a r t l i p Indian B a n d : S e t t l e m e n t
The village of Wjolelp, the winter home of the Tsartlip
people, was only partially set aside as a reserve by the Joint
Reserve Commission in 1877. Even though the Reserve
Commissioners were instructed to set aside the whole of the village
site, much of this territory was excluded when only 483 acres were
protected as reserve land.
Lot A on Gowdy Road is within the village site of Wjolelp,
and it was not included within I.R. #1. In 1875 the Province of
British Columbia issued a Crown grant for all of an area which
they called Section 9. Section 9 was subdivided in 1921 and Lot A
was part of that subdivision. In 1942 the Federal Government
acquired Lot A from a man named John Brooks and used the
property as a transmitter station during World War II. In 1985 the
Department of Public Works issued a notice that the land was no
longer required for public works. DIA did not take any action on
the Band's behalf regarding the proposed sale, even though they
were advised that this land was included within the 1987 Saanich
Indian Territorial Declaration. The land was sold to the School
Board in April of 1987 who wanted to build a school on that site.
The late Philip Paul and other members of the Saanich people
physically camped on the site and prevented the construction of the
school.
An agreement has now been approved between Canada, the
Tsartlip Band Council, and the School Board. Lot A will be
returned to the Tsartlip Band, and the Minister will recommend that
it be turned into an Indian reserve.
CHIEFS MASK BOOKSTORE & GALLERY
73 Water Street, Vancouver, B.C., C A N A D A , V6B 1A1 Telephone (604) 687-4100 Fax: (604) 684-5726
BOOKS:
CONSIGNMENT
ITEMS
ACCEPTED
ARTS & CRAFTS
•
FIRST NATIONS
JEWELRY (GOLD & SILVER)
•
ABORIGINAL ISSUES
POTTERY
•
GOVERNMENT
PRINTS
•
L A N D CLAIMS
T-SHIRTS
•
•LAW
•
ART
LEATHERWORK
MASKS
•
• CHILDREN'S BOOKS
•
• TEACHING AIDS
•
• POETRY
BEAD WORK
CALL, WRITE OR
DROP IN TODAY!
TRADITIONAL MUSIC
AND M U C H MORE!
Owned and operated by the Union of B.C. Indian Chiefs.
Page 8
M A R C H / A P R I L 1993
Union of B.C. Indian Chiefs
NEWSLETTER
MARCHIAPRIL 1993
Our Fishery: "The genocide must stop!"
Over the last few weeks and especially so since the last river fishery season the rhetoric on Indian Fishing has
escalated to high-decibel levels.
Special interests, suchas the Fishermans Survival
Alliance, put forth the line that fair arrangements
with Indian Peoples are “‘racist’*. The fact is
<“sthat the rights of our Peoples, whether they are
hunting, fishing or land rights, are neither racist nor ‘‘special’’.
Ourrights are legitimate, constitutionally- recognized rights arising
from the fact that we are the original peoples in British Columbia
and we continue to live in our homelands as we have for hundreds
of generations. We view ourselves as distinct Peoples and we
expect to be recognized and respected as such.
It follows, therefore, that the Indian Fishery in this province
is as legitimate, if not more so, than the current non-native fishing
regime. The question is not how much fish do Indians want to take
but how much of our fishery are Indian Peoples willing to share.
For non-native Canadians, the fish resource indeed falls
under the jurisdiction of Canada. However, the question of
jurisdiction has never been settled with Indian Peoples in this
province. A resolution of this issue is urgently needed but it
certainly cannot be made under the auspices ofenhancing food fish
permits, as is currently being promoted by the DFO. The only
appropriate process for achieving a settlement is Nation-to-Nation
treaty-making between our respective Nations and Canada.
The dire economic conditions which our Peoples face
cannot be underestimated or ignored. When the economic guts of
our Indian communities were torn out at the end of the last century
by government policiesand settlers’ greed, fewnon-natives objected
or cared. It is ironic that now, when the task of economic renewal
should begin, non-native greed and fear is generating a chorus of
nay-saying and blame.
The settler governments in colonial times made
commitments to our people in the name of the Queen. We have not
forgotten our history, despite the laws passed by Canada and
British Columbia to erase the Land Title issue from our minds and
hearts. It is time that the promises of the Queen are made good
through treaties based upon Nation-to-Nation principles mutually
agreed upon -- principles which will ensure Indian Peoples’
survival many generations into the future.
To the citizens of our Indian Nations and to all right-minded
Canadians, no amount of fear-mongering, racist appeals, or efforts
to discredit our rights can bury our legitimate economic grievances.
For too long our People have been shunted aside, bullied, ridiculed,
and dictated to through legislation, policy directives and judicial
orders.
Our Indian Peoples’ humanrights have been violated by the
refusal of Canada to recognize our Sovereign political, economic,
social cultural and spiritual rights -- our Nations’ right of self-
determination. The genocide must stop! The Aboriginal Title and
Rights of Indian Peoples within our respective homelands must be
recognized now and into the future. No fair minded individual
should disagree.
UBCIC: March 8, 1993
SPECIAL EDITION
IN THIS ISSUE ...
Message from the President pb. 2
Education Update __ p.3
Tribute to Philip Paul p. 4
Legal Update p. 5
Specific Claims p. 6
Resource Centre Update ___ pp. 7
MARCH/APRIL 1993
Page |
=
MESSAGE FROM THE PRESIDENT:
n February 8th, Chiefs
O Kathy Wallace, Lawrence
Pootlass and Archie Jack
accompanied me to Ottawa to raise
the issue of our aboriginal and
treaty right to education.
Unfortunately Chief Rose Charlie
was unable to go. Rhonda Johnson
filled in at the very last moment.
Rhonda, for those that do not
know, is an articling law student
who will be working with the Union of B.C. Indian Chiefs over
the next year.
As a group we met with members of parliament for the
New Democratic Party, Liberal Party, and the Chairman of the
Standing Committee on Aboriginal Affairs, a sitting M.P. for
the Conservative government. We had requested a meeting
with Minister Tom Siddon but he suggested we meet with one
of his officials, so we declined. As chiefs we wished to meet
with elected members of parliament. The major issue is that of
education.
1. The M.T.A. lapsed last June and we need a new
approach to any future agreements. We indicated that any
agreement must clearly recognize the authority of our people in
the area of education. This would permit greater control by and
accountability to our respective Peoples. With recognized
control we would also have greater control to address the
special needs of our students. The matter of tuition contribution
disparity between the public school system and the on reserve
school system was also cited. This is where the public school
system may receive $4000.00 per pupil while the on reserve
school tuition may be half of that at $2000.00 per pupil.
2. In post secondary education we demanded that all of
our students who qualify for entrance to a post secondary
institution should be funded. We mentioned here the fact that
many students did not apply because they had heard that there
were no funds available. Many students are also forced to live
in substandard conditions due to the cost of rent, food and
transportation plus other charges, (child care) etc.
We also reported that Indian Affairs was carrying out
post secondary education reviews where they demanded to
review the files of the students. If the bands did not cooperate,
D.1.A. threatened funding cuts or termination of funding.
3. Other issues brought to the attention of M.P.’s were
taxation, our objection to any registration of the U.B.C.I.C. as
lobbyists, the fishery is a right, not a commercial food fish
privilege subject to the laws of Canada and British Columbia.
More meetings will be had with parliamentarians over
the next few months so that our position that education is an
aboriginal and treaty right will clearly be understood.
The support for our citizens on this issue is very
important. We cannot permit the government to abdicate its
fiduciary obligation to our future generations.
GEORGE MANUEL INSTITUTE
OF INDIAN GOVERNMENT
Grand Chief George Manuel
passed away during the Union of B.C.
Indian Chiefs’ 21st Annual General
Assembly in 1989. In the years since his
passing, the Union has wanted to honour
George’s life, works, and legacy in a
special way.
Throughout his life, George
Manuel worked to advance the cause
of aboriginal rights and self-determination in our communities
and at the national and international levels. George set very
high professional and political standards for leadership. He
believed that education was the springboard for political action
and that both were essential for indigenous peoples to achieve
self-determination in their homelands.
In 1990, Chief Saul Terry approached the Manuel family
for approval of the idea of establishing an ‘‘Indian Government
Institute’’ as a /iving memorial to George Manuel.
Representatives of the Manuel family indicated their approval.
At UBCIC’s 23rd Annual General Assembly in 1991,
delegates ratified a discussion paper as the first step to
establishing the George Manuel Institute of Indian
Government. The discussion paper proposed that the Institute
be established along the lines of the Saskatchewan Federated
Indian College -- an independent, Indian-controlled institute
affiliated with an established university for degree-granting and
fund-raising purposes.
The UBCIC Resource Centre library will become the
Institute’s hub for teaching, research and publishing activities.
In keeping with George Manuel’s values, commitment and life-
long work, the Institute will focus on four areas: 1) Political
Development & Leadership; 2) Indian Government
Administration; 3) Economic & Social Development; and 4)
International Relations.
Under the direction of the UBCIC Chiefs’ Council, the
overall development plan for the Institute is being carried out
by Chief Bernard Charles (Semiahmoo) and Rhonda Johnson
(articling student).
While this planning is underway, the Chiefs’ Council
has approved the start-up this spring of an Institute workshop
on First Nation Leadership Training. The workshop will cover
such topics as: aboriginal title and rights, the Royal
Proclamation, the Indian Act, land management, fiscal
management, labour relations, duties and obligations of the
Federal Crown, and introduction to First Nation organizations.
The Chiefs’ Council has also approved a “‘First Nation
Jurisdiction for First Nation Justice Conference”’ jointly
sponsored by the First Nation Tribal Justice Institute and the
George Manuel Institute of Indian Government. It is scheduled
for June 1, 2, 3, 1993 in Mission, B.C.
For more information about the George Manuel Institute
of Indian Government, contact the Union of B.C. Indian Chiefs.
at 684-0231.
=f
Page 2
MARCH/APRIL 1993
STEERING COMMITTEE ON INDIGENOUS
EDUCATION
HE COMMITTEE emerged from a series of meetings that followed the cut-backs in post-secondary education in 1989. We have
been working for the past year in preparation for a lobby in Ottawa. The lobby was set for the week of March 8th - 12th but was
postponed when the Prime Minister announced his imminent resignation. As the Union receives no funding for educational
matters, the local community and tribal councils have been paying the expenses of their representatives.
A WRITTEN PRESENTATION has been prepared by the Tsilhqot’in Tribal Council and approved by the committee. This is
an all-purpose paper that will serve as a presentation to Parliamentary Committees and to the Human Rights Commission, as information
for Aboriginal Affairs critics and the native press, and as briefing notes for the lobbyists.
OUR POSITION is that we accept the principles and recommendations on education adopted by the Assembly of First Nations
in 1991, a copy of which is attached. We uphold and maintain the principle of the international relationship between our nations and
Canada, together with the primacy of our relationship with the Parliament of Canada: this means that any involvement with the provinces
or with local or independent school boards must be secondary and at the discretion of the local communities involved. We insist that
funding for education shall be transferred from Ottawa only according to the direction of the local communities. We further insist that
our jurisdiction over education extends beyond the small reserves that have been established without our consent; it extends to all of our
people in all of our traditional territory. We are convinced that the only fair policy in post-secondary education is that any student who
is recognized by his (or her) local community as being qualified for further education must be funded.
OUR PURPOSE is to require the Parliament of Canada to return to the indigenous nations and communities the jurisdiction over
education that was stolen from us about a hundred years ago. The attempt by Canada to control the public education of our people is
illegal and has failed badly. The effects of the residential schools will be with us for several generations to come and it is clear that the
provincial system is not serving us well. We have no doubt that matters will not improve until ourright to control our own public education
is recognized, respected and honoured. A draft bilateral agreement on education that would replace the Master Tuition Agreements has
been sent to Ottawa. For further information contact Dianna Rai at the at the Union of B.C. Indian Chiefs Vancouver Office at (604)
684-0231.
Ray Hance, Chairman
CALENDER OF EVENTS
Chiefs Committee _on Claims - April 15-16, 1993, Halifax, Nova Scotia
Conyat 3rd Annual Traditional POWWOW - April 16, 17, 18, 1993, Merrit, B.C., Nicola Valley
Memorial Arena. For more information contact Richard Jackson tel: (604) 378-5107. Absolutely no drugs or
alcohol allowed.
Union of B.C. Indian Chiefs Lobby on Education - April 26th-30th, 1993, Ottawa, Ontario.
Native Intercampus Student Network Rally on Education - April 27th, 1993, @ D.I.A. B.C.
Regional Offices (1550 Alberni Street) 10:30 a.m. and speakers beginning at noon. Contact Mike Desjarlais
(NEC) 873-3761 (messages only) Home: 251-1270 or Oscar Swanson at 877-0329. Fax: 873-9152 Attention:
Native Indian Student Network.
First Nations Jurisdiction for First Nations Justice Conference - June 1, 2, 3, 1993, Mission,
B.C., Toti:lthet Centre.
For more information on any of these events please contact the Union of B.C. Indian Chiefs
Vancouver Office at (604) 684-0231.
| :
MARCH/APRIL 1993 Page 3
TRIBUTE TO PHILIP PAUL
I did not know that responding to a request to fill a job
vacancy, through a mutual friend, would change the course of
my life. Perhaps that was always the way it was for people
who were in contact with or worked for Philip Paul.
It certainly was the case for me in 1968, when the
challenge was offered to instruct an art class totally comprised
of Indian people. I was newly graduated from the Vancouver
School of Art and Philip placed his confidence in me despite
my inexperience. He left the structure of the program in my
hands. Philip attended to the frustrating administrative
requirements. Our course of the studies was approved and
there was no shortage of mature students.
When Philip
interviewed me for the
position he said, as part
of the sales pitch, that
Victoria was a great
place to be, especially
during the winter
months, because it never
really got exceptionally
cold nor did it snow. As
a weatherman, Philip
may not have done well
because that winter
about two feet of snow
came down.
It blanketed the
small cottage that Philip
and his wife Frances so
generously provided for
me to live in. It was
located behind their
home on Clarke Road in
Brentwood Bay.
When Philip
hired me I really was
not involved in Indian politics but the issues of education,
housing, employment, administration and funding were often
discussed in meetings at the Institute of Adult Studies.
Although I did not know it at the time, my political education
had begun under the tutelage of one of the most politically
astute Indian leaders in the province. Philip was involved with
the North American Indian Brotherhood and he along with
other Chiefs founded the Union of B.C. Indian Chiefs in 1969.
That was the year that Philip introduced me to George
Manuel. Philip also invited me to join them for a lunch
meeting in the cafeteria of the Institute of Adult Studies (now
Camosun College).
Philip Paul and George Manuel leading the Constitution Express march
in Ottawa, 1981.
George was contemplating a change of employment
and he was consulting with Philip on the pros and cons of the
move. Years later George confided to me that he often sought
Philips counsel. Philip advised George when he served as
President of the National Indian Brotherhood and afterward
when George was elected president of the Union of B.C.
Indian Chiefs.
Philip was involved in the Indian land question
throughout his life. Some may recall that he was clubbed over
the head on the steps of parliament at Ottawa. It was during
one of our demonstrations against the patriation of the
constitution. At the same time, Philip was totally involved
with culture and
education. He was
instrumental in building
Lau Welnew Sculhautw
on the Tsartlip Reserve.
In the past four years,
Philip, once again
became more active with
the Union of B.C. Indian
Chiefs. After being
retired from his
Saanichton School Board
position, Philip gave the
Union of B.C. Indian
Chiefs the benefit of his
wit and wisdom on many
occasions. He chaired
many of our
conferences; our
provisional government
conference held in
Mission on April of 1992
and our latest conference
on October 21, 22, 23,
1992 were both chaired
by Philip despite his failing health.
Philip Paul’s honours and achievements are numerous:
founding member and Grand Chief of the Union of B.C.
Indian Chiefs, elected chief of Tsartlip Band, athlete, leading
educator, political advisor, loyal friend and most of all a
champion of the ordinary people of our Indian Nations.
His death on the evening of December 21, 1992 has left
a numbness in my heart and soul that will not soon depart but
one thing is certain. Philip Paul continues to influence and
present challenges for vision in my life.
Chief Saul Terry
Page 4
MARCH/APRIL 1993
LEGAL UPDATE
Fishing Cases .
There have been two recent trial decisions related to the
aboriginal right to fish. The first was the decision of Judge
Saunderson of the Provincial Court of B.C. in Regina vs. Dick,
Court No. 16555. Judge Saunderson held that the Lekwiltok
tribe could not establish an aboriginal title or right over the area
in which Ralph Dick was fishing, because he held that at that
time the Crown asserted sovereignty the Lekwiltok were not
exclusively occupying that area. Although it was unnecessary
for his decision, he went on to hold that barter was only
incidental to the Lekwiltok’s existence before the coming of
Europeans, and was not the focal point of their attempt to earn
a livelihood. Based on these findings, Saunderson went on to
reject the ruling of Judge Selbie in Vanderpeet and apply
McEachern’s decision in Delamuukw to decide that pre-contact
aboriginal barter does not give rise to an aboriginal right to sell
fish in a modern context, In addition, ignoring the ruling in
Sparrow, he held that the aboriginal right to sell fish, if it
existed, had been extinguished by the B.C. Fisheries
Regulations. The decision will be appealed.
The second case is the decision of Judge Collier of the
Federal Court, Trial Division in Ceci! Reid et al. v. Her
Majesty the Queen in Right of Canada & DFO et al. In this
case the Heiltsuk people asserted that their aboriginal fishing
right entitled them, as of right, to a license to carry on their roe
on kelp fishery for food, ceremonial and commercial purposes.
The Court rejected the Heiltsuk people’s arguments and held
that because their pre-contact fishery was not a market system
they had not established that commercial harvesting of roe on
kelp was ever part of their aboriginal right.
In both of these decisions the court adopted a frozen
rights theory, ignoring the decision of the Supreme Court of
Canada in Sparrow. Many of the issues raised in both of these
cases are before the B.C. Court of Appeal in the 6 fishing
appeals. The decisions in those appeals are expected in late
May, 1993.
Taxation Update
In April of 1992, the Supreme Court of Canada released
its ruling in Williams v. Canada. The Court ruled that the
unemployment benefits received by an Indian person were
exempt from taxation if that person was eligible for those
benefits due to employment income which was tax exempt
under section 87 of the Indian Act. Although the case itself
was a victory, the wording of part of the Judgement has created
some uncertainty as to whether or not it can still be assumed
that the income of an Indian person will be exempt from
taxation if their employer is located on Reserve :
"It has been assumed by the parties that the previous
employment of the appellant which gave rise to the
qualification for unemployment insurance benefits was
also located in reserve, since the two employers in question
were located on reserve, This question must be reexamined
in light of our determination that this conclusion cannot
safely be drawn from the principles of conflict of laws."
jat pages 23 to 24, emphasis added].
MARCH/APRIL 1993
As a result of the Williams decision, revenue Canada
released a revised policy with respect to the application of the
Indian Act tax exemption on December 29, 1992. Revenue
Canada maintains that:
" ., the salary of an Indian will no longer be exempt merely
because it is paid by an employer situated on a reserve. The
principal factor connecting income to a reserve will now be
where the duties are carried out. The location of the
employer will continue to be a factor, but other factors
connecting the income to the reserve will also have to be
present for the income to be tax exempt..." [emphasis added]
We note that there is nothing in the Williams decision to
support the contention that “‘the principal factor connecting
income to a reserve will now be where the duties are carried
out’’. This is nowhere stated in the decision. In fact the Court
specifically states that with the facts before them it:
"... would not be an appropriate case in which to develop a test
for the situs of the receipt of employment income. All the
potential connecting factors with respect to the qualifying
employment of the appellant point to the reserve. The
employer was located on the reserve, the work was performed
on the reserve, the appellant resided on the reserve, and he was
paid on the reserve...”
No doubt the questions left unresolved by the Williams
decision will be the subject of further litigation. We are aware
of one case decided since the Williams decision which begins
this process of determining what factors will provide a
sufficient ‘‘connection’’ to the Reserve to attract the benefits of
section 87.
In Brenda McNab v. Canada the Court was asked to
decide whether the income of a Native woman employed by the
Saskatchewan Treaty Indian Women’s Council was exempt
from taxation. The evidence revealed that Ms. McNab was a
treaty Indian. Her employer, the Saskatchewan Treaty Indian
Women’s Council, was found to be an organization which
worked ‘‘...with and for women and children on Indian reserves
in Saskatchewan for their health, protection and betterment."
The Court found that the driving force behind the Council was
Isobel McNab who resided on the Gordon Indian Reserve.
Some of the Council’s records were stored at Isobel McNab’s
residence. The Council also had an office and a telephone off
reserve in Regina. The letterhead of the Council listed the
Regina address and telephone number. All ordinary
administration and clerical work was found to be conducted in
the Regina office while financial records were taken out to the
Gordon Reserve and cheques were signed there by Isobel
McNab about twice a month.
The Court analyzed a number of factors to determine
whether the income of Ms, McNab was ‘‘situated on the
Reserve.’’ The first of these was the employer’s location. The
Court found that the registered office of the employer was on
Reserve. Similarly, the directing mind of the operation, Isobel
McNab, lived on reserve. The working ordinary day-to-day
administration of the Council, however, took place in Regina
The Court found that: "The purpose of the Council was to assist
Indian women on the reserves and the evidence is clear that the
Council did so and that its operations off the reserve were
ancillary to its work on the reserves. In these circumstances I find
CONTINUED PAGE 8
Page 5
SPECIFIC CLAIMS RESEARCH UPDATE
The past year has been a very busy time for UBCIC’s
Specific Claims Research Program. The number of specific
claims being researched by Thalassa Research and Mandell
Pinder on behalf of UBCIC member bands has increased
100% since 1990-91. There are now over 100 specific claims
on our active workplan for 1993-94!
Although the workload has increased dramatically, we
completed research, legal analysis and statements of claim
on 12 specific claims in 1992-93. In addition, 4 claims were
submitted in 1992-93 to the DIA Specific Claims Branch and
other agencies for settlement. The Union is proud that this
high level of service and productivity for member bands has
been maintained over the past five years, despite minimal
increases in research funding.
In the past year, the Union has initiated discussions
with the Province of British Columbia (Ministry of
Aboriginal Affairs; Heritage Conservation Branch, Ministry
of Tourism & Culture) regarding settlement of ‘‘Douglas
reserve’ claims and protection of graveyards, burial areas
and sacred sites under First Nation jurisdiction. We are
hopeful that these efforts will bear fruit over the next six
months,
A national Research Directors meeting and workshop
was held in Ottawa on February 23-25, 1993. Peter Parker
(Thalassa) and I attended the meeting. Peter attended the
eee ere sme eee ee
UNION OF B.C. INDIAN CHIEFS
SUBSCRIPTION FORM
research skills workshop sessions and used the rest of his
time in Ottawa to do specific claims research for member
bands at the Treaties & Historical Research Centre (DIA)
and the Public Archives of Canada. (Peter brought back 30
lbs. of file documents!) I attended the Research Directors
meetings, which dealt with specific claims policy
developments, research funding and information exchange. I
also attended workshops on right-of-way claims, accessing
trust fund accounts, and the Saskatchewan Treaty Land
Entitlement Framework Agreement.
The Chiefs Committee on Claims will be meeting in
Halifax, Nova Scotia on April 15-16, 1993 to review the
work of the Federal Government/First Nations Joint Working
Group on Claims Policy. If the JWG is successful, there
could be a new specific claims policy in 1994.
Finally, congratulations to the Tsartlip Band for
achieving a successful negotiated settlement of their ‘‘Goudy
Road’’ claim. The late Philip Paul was instrumental in
moving this claim forward ‘‘on the ground”’ and at the table.
His inspiration and leadership will be missed.
Dan Gottesman, Ph.D.
UBCIC Research Director
—— es ee ee ee ee ee
FOR OFFICE USE ONLY
NAME:
DATE RECEIVED:
ADDRESS: CHEQ/M.O.#:
EXPIRY DATE:
PROVINCE/STATE: POSTAL/ZIP CODE:
| YEAR SUBSCRIPTION
NEWSLETTER INDIVIDUALS: $35.00
NEWSCLIPPING MEMBER BANDS: $75.00 INDIVIDUALS: $100.00
TOTAL AMOUNT ENCLOSED
Please make cheque or money order payable in Canadian funds to:
—_——
UNION OF B.C. INDIAN CHIEFS,
700-73 Water Street, Vancouver, B.C., V6B IAI
Page 6
MARCH/APRIL 1993
a
Resource Centre Move
The Resource Centre was finally moved up to our new
seventh floor location over the December Sth weekend. The
collection fits into the new space as if it was designed for
the Library, Operation of the Library day-to-day functions can
be now done more efficiently and the ability to assist users with
their research requirements has been enhanced because of the
improved layout and arrangement of the Library.
Collection Development
The continued growth of the Library collection is
evidenced in the new book displays on top of the shelving units
and the overflowing shelves of new material in my office. It is
almost a full-time job just trying to keep on top of the
information explosion around aboriginal issues.
I am also trying to improve the ‘‘Quick Reference’ files
so that the types of information asked for again and again is
quickly accessible.
The verbatim transcripts from the first two rounds of the
Royal Commission on Aboriginal Affairs are available on a
computerized full-text retrieval database and we hope to
purchase this database in the new budget year. This program
will permit individual analysis for purposes of education and
research.
I also hope to add to the Library collection in the new
budget year a very valuable service called ‘‘Microlog’’.
Government documents are time consuming to acquire and
catalog , difficult to keep up on, and take up a great deal of
space. The Special Collection on Native Peoples within the
Microlog service provides all government documents on native
issues in microfiche format through a single subscription
service. The collection comes with its own indexing so that
documents are easily retrievable.
Automating the Resource Centre Catalog
In January, I put a great deal of time into researching
software programs available for automating the Library catalog
as well as other Library functions such as acquisitions. The
collection has grown so large that manually cataloguing
materials and accessing them with a printed catalog is no
longer efficient. In fact, we simply can not catch up or keep up
with cataloguing using a manual system. It was decided to
acquire a software program called “‘INMAGIC PLUS for
Libraries’ as soon as funding is made available by the new
budget. This program also allows the option of providing on-
line access via computer modem to our Library catalog in
future. INMAGIC PLUS is also being considered for records
management of the UBCIC administration and research files.
-)- RESOURCE CENTRE UPDATE _@,
Cay
Microfilming Workshop
I will be attending a day long workshop on Preservation/
Conservation Microfilming on March 10th. Because we want
to preserve documents and conserve space, microfilm will
become an even more important format as time goes on.
First Nations Library Workshop (Information
has been provided to your band/tribal council)
The British Columbia Library Association’s First
Nations Interest Group is sponsoring, in co-sponsorship with
the UBCIC and the Gitskan Wet’Suwet’en Hereditary Chiefs, a
one day pre-conference workshop on First Nations Libraries at
the BCLA Annual Conference in Penticton on April 22. This
workshop will be of interest to School Band Library staff as
well as staff from Bands or Tribal Councils which have or wish
to set up libraries, I will be conducting a segment of the
workshop on running a small library and anyone interested can
call me for more information at our Vancouver office number
(684-0231). Some funding may be available to assist with
costs. Registration forms have gone to Band and Tribal
Council offices. Late registrations can still be sent in but do it
as soon as possible.
Resource Centre Policy
Resource Centre policy is on the agenda for the Chiefs
Council meeting March 11-13th. I will be making some
recommendations for policy changes which I will report in the
next Newsletter,
In the meantime if you have any information queries which I
can help with or there is anything which you would like me to
specifically report on in the next Newsletter please call me. I
hope in subsequent Newsletters to be able to provide a short
bibliography of new key titles published on aboriginal issues
and information about where these documents can be acquired.
Ly
Wendy Ancell
UBCIC LIbrarian
MARCH/APRIL 1993
Page 7
LEGAL UPDATE (conTINUED FROM PAGE 5)
that the employer’s location was on the Gordon Indian Reserve."
The Court found that the location of the appellant’s work
was off Reserve in Regina. The appellant’s legal residence was
found to be the Gordon Indian Reserve, although she lived
approximately 5 days of each week of the year in Regina. The
Court found that the place of the appellant’s income payments was
mainly on Reserve, although payment sometimes occurred in
Regina.
The Court then concluded that Ms. McNab’s employment
income was located on Reserve. Of particular importance appears
to be the fact that the purpose of the employer (the Council) was
solely to benefit Indian people on Reserve: "The employer’s
location was on the Gordon Indian Reserve. The appellant worked
partly in Regina and partly on various reserves all over
Saskatchewan... she attended upon Isobel McNab in order to have
cheques signed and at other times parts of her work were
conducted on other reserves when she attended upon Isobel
McNab. The appellant’s residence was on the Gordon Indian
Reserve. Seventy-five percent of the time she was paid on the
Gordon Indian Reserve. All of her work was with Indians and
all of her work was on the instructions of an employer whose
sole purpose was to benefit Indians on reserve."" (emphasis
added)
The case is useful in that it provides authority that the
Williams decision does not require that work be physically
performed on the Reserve in order to attract the exemption
provided by section 87 of the Indian Act. One ‘‘connecting factor”’
of significance will be whether or not the purpose of the work is for
the benefit of Indian people on Reserve.
Specific Claims: Tsartlip Indian Band: Settlement
The village of Wjolelp, the winter home of the Tsartlip
people, was only partially set aside as a reserve by the Joint
Reserve Commission in 1877. Even though the Reserve
Commissioners were instructed to set aside the whole of the village
site, much of this territory was excluded when only 483 acres were
protected as reserve land.
Lot A on Gowdy Road is within the village site of Wjolelp,
and it was not included within I.R. #1. In 1875 the Province of
British Columbia issued a Crown grant for all of an area which
they called Section 9. Section 9 was subdivided in 1921 and Lot A
was part of that subdivision. In 1942 the Federal Government
acquired Lot A from a man named John Brooks and used the
property as a transmitter station during World War II. In 1985 the
Department of Public Works issued a notice that the land was no
longer required for public works. DIA did not take any action on
the Band’s behalf regarding the proposed sale, even though they
were advised that this land was included within the 1987 Saanich
Indian Territorial Declaration. The land was sold to the School
Board in April of 1987 who wanted to build a school on that site.
The late Philip Paul and other members of the Saanich people
physically camped on the site and prevented the construction of the
school.
An agreement has now been approved between Canada, the
Tsartlip Band Council, and the School Board. Lot A will be
returned to the Tsartlip Band, and the Minister will recommend that
it be turned into an Indian reserve.
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Page 8
MARCH/APRIL 1993
-
Union of B.C. Indian Chiefs
NEWSLETTER
MARCH/APRIL 1993
Our Fishery: "The genocide must stop!"
Over the last few weeks and especially so since the last river fishery season the rhetoric on Indian Fishin
escalated to high-decibel levels.
Special interests, such as the Fishermans Survival
Alliance, put forth the line that fair arrangements
with Indian Peoples are "racist". The fact is
that the rights of our Peoples, whether they are
hunting, fishing or land rights, are neither racist nor "special".
Our rights are legitimate, constitutionally- recognized rights arising
from the fact that we are the original peoples in British Columbia
and we continue to live in our homelands as we have for hundreds
of generations. We view ourselves as distinct Peoples and we
expect to be recognized and respected as such.
It follows, therefore, that the Indian Fishery in this province
is as legitimate, if not more so, than the current non-native fishing
regime. The question is not how much fish do Indians want to take
but how much of our fishery are Indian Peoples willing to share.
For non-native Canadians, the fish resource indeed falls
under the jurisdiction of Canada. However, the question of
jurisdiction has never been settled with Indian Peoples in this
province. A resolution of this issue is urgently needed but it
certainly cannot be made under the auspices of enhancing food fish
permits, as is currently being promoted by the DFO. The only
appropriate process for achieving a settlement is Nation-to-Nation
treaty-making between our respective Nations and Canada.
The dire economic conditions which our Peoples face
cannot be underestimated or ignored. When the economic guts of
our Indian communities were torn out at the end of the last century
by government policies and settlers' greed, few non-natives objected
or cared. It is ironic that now, when the task of economic renewal
should begin, non-native greed and fear is generating a chorus of
nay-saying and blame.
The settler governments i n colonial times made
commitments to our people in the name of the Queen. We have not
forgotten our history, despite the laws passed by Canada and
British Columbia to erase the Land Title issue from our minds and
hearts. It is time that the promises of the Queen are made good
through treaties based upon Nation-to-Nation principles mutually
agreed upon — principles which will ensure Indian Peoples'
survival many generations into the future.
To the citizens of our Indian Nations and to all right-minded
Canadians, no amount of fear-mongering, racist appeals, or efforts
M A R C H / A P R I L 1993
to discredit our rights can bury our legitimate economic grievances.
For too long our People have been shunted aside, bullied, ridiculed,
and dictated to through legislation, policy directives and judicial
orders.
Our Indian Peoples' human rights have been violated by the
refusal of Canada to recognize our Sovereign political, economic,
social cultural and spiritual rights — our Nations' right of selfdetermination. The genocide must stop! The Aboriginal Title and
Rights of Indian Peoples within our respective homelands must be
recognized now and into the future. No fair minded individual
should disagree.
UBCIC: March 8, 1993
SPECIAL EDITION
IN THIS ISSUE...
Message from the President
p. 2
Education Update
p. 3
Tribute to Philip Paul
p. 4
Legal Update
p. 5
Specific Claims
p. 6
Resource Centre Update
p. 7
Page 1
MESSAGE FROM THE PRESIDENT:GEORGE MANUEL INSTITUTE
OF INDIAN GOVERNMENT
O
n February 8th, Chiefs
Kathy Wallace, Lawrence
Pootlass and Archie Jack
accompanied me to Ottawa to raise
the issue of our aboriginal and
treaty right to education.
Unfortunately Chief Rose Charlie
was unable to go. Rhonda Johnson
filled in at the very last moment.
Rhonda, for those that do not
know, is an articling law student
who will be working with the Union of B.C. Indian Chiefs over
the next year.
As a group we met with members of parliament for the
New Democratic Party, Liberal Party, and the Chairman of the
Standing Committee on Aboriginal Affairs, a sitting M.P. for
the Conservative government. We had requested a meeting
with Minister Tom Siddon but he suggested we meet with one
of his officials, so we declined. As chiefs we wished to meet
with elected members of parliament. The major issue is that of
education.
1. The M . T . A . lapsed last June and we need a new
approach to any future agreements. We indicated that any
agreement must clearly recognize the authority of our people in
the area of education. This would permit greater control by and
accountability to our respective Peoples. With recognized
control we would also have greater control to address the
special needs of our students. The matter of tuition contribution
disparity between the public school system and the on reserve
school system was also cited. This is where the public school
system may receive $4000.00 per pupil while the on reserve
school tuition may be half of that at $2000.00 per pupil.
2. In post secondary education we demanded that all of
our students who qualify for entrance to a post secondary
institution should be funded. We mentioned here the fact that
many students did not apply because they had heard that there
were no funds available. Many students are also forced to live
in substandard conditions due to the cost of rent, food and
transportation plus other charges, (child care) etc.
We also reported that Indian Affairs was carrying out
post secondary education reviews where they demanded to
review the files of the students. If the bands did not cooperate,
D.I.A. threatened funding cuts or termination of funding.
3. Other issues brought to the attention of M.P.'s were
taxation, our objection to any registration of the U.B.C.I.C. as
lobbyists, the fishery is a right, not a commercial food fish
privilege subject to the laws of Canada and British Columbia.
More meetings will be had with parliamentarians over
the next few months so that our position that education is an
aboriginal and treaty right will clearly be understood.
The support for our citizens on this issue is very
important. We cannot permit the government to abdicate its
fiduciary obligation to our future generations.
Page 2
Grand Chief George Manuel
passed away during the Union of B.C.
Indian Chiefs' 21st Annual General
Assembly in 1989. In the years since his
passing, the Union has wanted to honour
George's life, works, and legacy in a
special way.
Throughout his life, George
Manuel worked to advance the cause
of aboriginal rights and self-determination in our communities
and at the national and international levels. George set very
high professional and political standards for leadership. He
believed that education was the springboard for political action
and that both were essential for indigenous peoples to achieve
self-determination in their homelands.
In 1990, Chief Saul Terry approached the Manuel family
for approval of the idea of establishing an "Indian Government
Institute" as a living memorial to George Manuel.
Representatives of the Manuel family indicated their approval.
At U B C I C ' s 23rd Annual General Assembly in 1991,
delegates ratified a discussion paper as the first step to
establishing the George M a n u e l Institute of Indian
Government. The discussion paper proposed that the Institute
be established along the lines of the Saskatchewan Federated
Indian College — an independent, Indian-controlled institute
affiliated with an established university for degree-granting and
fund-raising purposes.
The U B C I C Resource Centre library will become the
Institute's hub for teaching, research and publishing activities.
In keeping with George Manuel's values, commitment and lifelong work, the Institute will focus on four areas: 1) Political
Development & L e a d e r s h i p ; 2) Indian Government
Administration: 3) Economic & Social Development: and 4)
International Relations.
Under the direction of the U B C I C Chiefs' Council, the
overall development plan for the Institute is being carried out
by Chief Bernard Charles (Semiahmoo) and Rhonda Johnson
(articling student).
While this planning is underway, the Chiefs' Council
has approved the start-up this spring of an Institute workshop
on First Nation Leadership Training. The workshop will cover
such topics as: aboriginal title and rights, the Royal
Proclamation, the Indian A c t , land management, fiscal
management, labour relations, duties and obligations of the
Federal Crown, and introduction to First Nation organizations.
The Chiefs' Council has also approved a "First Nation
Jurisdiction for First Nation Justice Conference jointly
sponsored by the First Nation Tribal Justice Institute and the
George Manuel Institute of Indian Government. It is scheduled
for June 1, 2, 3, 1993 in Mission, B.C.
For more information about the George Manuel Institute
of Indian Government, contact the Union of B.C. Indian Chiefs,
at 684-0231.
M A R C H / A P R I L 1993
STEERING COMMITTEE ON INDIGENOUS
EDUCATION
T
HE C O M M I T T E E emerged from a series of meetings that followed the cut-backs in post-secondary education in 1989. We have
been working for the past year in preparation for a lobby in Ottawa. The lobby was set for the week of March 8th - 12th but was
postponed when the Prime Minister announced his imminent resignation. As the Union receives no funding for educational
matters, the local community and tribal councils have been paying the expenses of their representatives.
A W R I T T E N P R E S E N T A T I O N has been prepared by the Tsilhqot'in Tribal Council and approved by the committee. This is
an all-purpose paper that will serve as a presentation to Parliamentary Committees and to the Human Rights Commission, as information
for Aboriginal Affairs critics and the native press, and as briefing notes for the lobbyists.
O U R POSITION is that we accept the principles and recommendations on education adopted by the Assembly of First Nations
in 1991, a copy of which is attached. We uphold and maintain the principle of the international relationship between our nations and
Canada, together with the primacy of our relationship with the Parliament of Canada: this means that any involvement with the provinces
or with local or independent school boards must be secondary and at the discretion of the local communities involved. We insist that
funding for education shall be transferred from Ottawa only according to the direction of the local communities. We further insist that
our jurisdiction over education extends beyond the small reserves that have been established without our consent; it extends to all of our
people in all of our traditional territory. We are convinced that the only fair policy in post-secondary education is that any student who
is recognized by his (or her) local community as being qualified for further education must be funded.
OUR PURPOSE is to require the Parliament of Canada to return to the indigenous nations and communities the jurisdiction over
education that was stolen from us about a hundred years ago. The attempt by Canada to control the public education of our people is
illegal and has failed badly. The effects of the residential schools will be with us for several generations to come and it is clear that the
provincial system is not serving us well. We have no doubt that matters will not improve until our right to control our own public education
is recognized, respected and honoured. A draft bilateral agreement on education that would replace the Master Tuition Agreements has
been sent to Ottawa. For further information contact Dianna Rai at the at the Union of B.C. Indian Chiefs Vancouver Office at (604)
684-0231.
Ray Hance, Chairman
C A L E N D E R OF E V E N T S
Chiefs Committee on Claims - April 15-16, 1993, Halifax, Nova Scotia
Conyat 3rd Annual Traditional POWWOW - April 16, 17, 18, 1993, Merrit, B.C., Nicola Valley
Memorial Arena. For more information contact Richard Jackson tel: (604) 378-5107. Absolutely no drugs or
alcohol allowed.
Union of B.C. Indian Chiefs Lobby on Education - April 26th-30th, 1993, Ottawa, Ontario.
Native Intercampus Student Network Rally on Education - April 27th, 1993, @ D.I.A. B.C.
Regional Offices (1550 Alberni Street) 10:30 a.m. and speakers beginning at noon. Contact Mike Desjarlais
(NEC) 873-3761 (messages only) Home: 251-1270 or Oscar Swanson at 877-0329. Fax: 873-9152 Attention:
Native Indian Student Network.
First Nations Jurisdiction for First Nations Justice Conference - June 1, 2, 3, 1993, Mission,
B.C., Toti:lthet Centre.
For more information on any of these events please contact the Union of B.C. Indian Chi
Vancouver Office at (604) 684-0231.
M A R C H / A P R I L 1993
TRIBUTE TO PHILIP PAUL
George was contemplating a change of employment
I did not know that responding to a request to fill a job
and he was consulting with Philip on the pros and cons of the
vacancy, through a mutual friend, would change the course of
move. Years later George confided to me that he often sought
my life. Perhaps that was always the way it was for people
Philips counsel. Philip advised George when he served as
who were in contact with or worked for Philip Paul.
President of the National Indian Brotherhood and afterward
It certainly was the case for me in 1968, when the
when George was elected president of the Union of B.C.
challenge was offered to instruct an art class totally comprised
Indian Chiefs.
of Indian people. I was newly graduated from the Vancouver
Philip was involved i n the Indian land question
School of Art and Philip placed his confidence in me despite
throughout his life. Some may recall that he was clubbed over
my inexperience. He left the structure of the program in my
the head on the steps of parliament at Ottawa. It was during
hands. Philip attended to the frustrating administrative
one of our demonstrations against the patriation of the
requirements. Our course of the studies was approved and
constitution. At the same time, Philip was totally involved
there was no shortage of mature students.
with culture and
When Philip
education. He was
interviewed me for the
instrumental in building
position he said, as part
Lau Welnew Sculhautw
of the sales pitch, that
on the Tsartlip Reserve.
Victoria was a great
place to be, especially
In the past four years,
during the winter
Philip, once again
months, because it never
became more active with
really got exceptionally
the Union of B.C. Indian
cold nor did it snow. As
Chiefs. After being
a weatherman, Philip
r e t i r e d from his
may not have done well
Saanichton School Board
because that winter
position, Philip gave the
about two feet of snow
Union of B.C. Indian
came down.
Chiefs the benefit of his
wit and wisdom on many
It blanketed the
occasions. He chaired
small cottage that Philip
m
any of our
and his wife Frances so
conferences;
our
generously provided for
provisional
government
me to live in. It was
conference held in
located behind their
Mission
on April of 1992
home on Clarke Road in
and
our
latest
conference
Brentwood Bay.
Philip Paul and George Manuel leading the Constitution Express march
on
October
21,
22, 23,
When Philip
in Ottawa, 1981.
1992 were both chaired
hired me I really was
not involved in Indian politics but the issues of education,
housing, employment, administration and funding were often
discussed in meetings at the Institute o f Adult Studies.
Although I did not know it at the time, my political education
had begun under the tutelage of one of the most politically
astute Indian leaders in the province. Philip was involved with
the North American Indian Brotherhood and he along with
other Chiefs founded the Union of B.C. Indian Chiefs in 1969.
That was the year that Philip introduced me to George
Manuel. Philip also invited me to join them for a lunch
meeting in the cafeteria of the Institute of Adult Studies (now
Camosun College).
by Philip despite his failing health.
Philip Paul's honours and achievements are numerous:
founding member and Grand Chief of the Union of B.C.
Indian Chiefs, elected chief of Tsartlip Band, athlete, leading
educator, political advisor, loyal friend and most of all a
champion of the ordinary people of our Indian Nations.
His death on the evening of December 21, 1992 has left
a numbness in my heart and soul that will not soon depart but
one thing is certain. Philip Paul continues to influence and
present challenges for vision in my life.
Chief Saul Terry
Page 4
M A R C H / A P R I L 1993
LEGAL UPDATE
Fishing Cases
There have been two recent trial decisions related to the
aboriginal right to fish. The first was the decision of Judge
Saunderson of the Provincial Court of B.C. in Regina vs. Dick,
Court No. 16555. Judge Saunderson held that the Lekwiltok
tribe could not establish an aboriginal title or right over the area
in which Ralph Dick was fishing, because he held that at that
time the Crown asserted sovereignty the Lekwiltok were not
exclusively occupying that area. Although it was unnecessary
for his decision, he went on to hold that barter was only
incidental to the Lekwiltok's existence before the coming of
Europeans, and was not the focal point of their attempt to earn
a livelihood. Based on these findings, Saunderson went on to
reject the ruling of Judge Selbie in Vanderpeet and apply
McEachern's decision in Delamuukw to decide that pre-contact
aboriginal barter does not give rise to an aboriginal right to sell
fish in a modern context. In addition, ignoring the ruling in
Sparrow, he held that the aboriginal right to sell fish, i f it
existed, had been extinguished by the B . C . Fisheries
Regulations. The decision will be appealed.
The second case is the decision of Judge Collier of the
Federal Court, Trial Division in Cecil Reid et al. v. Her
Majesty the Queen in Right of Canada & DFO et al. In this
case the Heiltsuk people asserted that their aboriginal fishing
right entitled them, as of right, to a license to carry on their roe
on kelp fishery for food, ceremonial and commercial purposes.
The Court rejected the Heiltsuk people's arguments and held
that because their pre-contact fishery was not a market system
they had not established that commercial harvesting of roe on
kelp was ever part of their aboriginal right.
In both of these decisions the court adopted a frozen
rights theory, ignoring the decision of the Supreme Court of
Canada in Sparrow. Many of the issues raised in both of these
cases are before the B.C. Court of Appeal in the 6 fishing
appeals. The decisions in those appeals are expected in late
May, 1993.
Taxation Update
In April of 1992, the Supreme Court of Canada released
its ruling in Williams v. Canada. The Court ruled that the
unemployment benefits received by an Indian person were
exempt from taxation i f that person was eligible for those
benefits due to employment income which was tax exempt
under section 87 of the Indian Act. Although the case itself
was a victory, the wording of part of the Judgement has created
some uncertainty as to whether or not it can still be assumed
that the income of an Indian person will be exempt from
taxation i f their employer is located on Reserve :
"It has been assumed by the parties that the previous
employment of the appellant which gave rise to the
qualification for unemployment insurance benefits was
also located in reserve, since the two employers in question
were located on reserve. This question must be reexamined
in light of our determination that this conclusion cannot
safely be drawn from the principles of conflict of laws."
[at pages 23 to 24, emphasis added].
As a result of the Williams decision, revenue Canada
released a revised policy with respect to the application of the
Indian Act tax exemption on December 29, 1992. Revenue
Canada maintains that:
"... the salary of an Indian will no longer be exempt merely
because it is paid by an employer situated on a reserve. The
principal factor connecting income to a reserve will now be
where the duties are c a r r i e d out. The location of the
employer w i l l continue to be a factor, but other factors
connecting the income to the reserve will also have to be
present for the income to be tax exempt..." [emphasis added]
We note that there is nothing in the Williams decision to
support the contention that "the principal factor connecting
income to a reserve will now be where the duties are carried
out". This is nowhere stated in the decision. In fact the Court
specifically states that with the facts before them it:
"... would not be an appropriate case in which to develop a test
for the situs of the receipt of employment income. A l l the
potential connecting factors with respect to the qualifying
employment of the appellant point to the reserve. The
employer was located on the reserve, the work was performed
on the reserve, the appellant resided on the reserve, and he was
paid on the reserve..."
No doubt the questions left unresolved by the Williams
decision will be the subject of further litigation. We are aware
of one case decided since the Williams decision which begins
this process of determining what factors w i l l provide a
sufficient "connection" to the Reserve to attract the benefits of
section 87.
In Brenda McNab v. Canada the Court was asked to
decide whether the income of a Native woman employed by the
Saskatchewan Treaty Indian Women's Council was exempt
from taxation. The evidence revealed that Ms. McNab was a
treaty Indian. Her employer, the Saskatchewan Treaty Indian
Women's Council, was found to be an organization which
worked "...with and for women and children on Indian reserves
in Saskatchewan for their health, protection and betterment."
The Court found that the driving force behind the Council was
Isobel McNab who resided on the Gordon Indian Reserve.
Some of the Council's records were stored at Isobel McNab's
residence. The Council also had an office and a telephone off
reserve in Regina. The letterhead of the Council listed the
Regina address and telephone number. A l l ordinary
administration and clerical work was found to be conducted in
the Regina office while financial records were taken out to the
Gordon Reserve and cheques were signed there by Isobel
McNab about twice a month.
The Court analyzed a number of factors to determine
whether the income of Ms. McNab was "situated on the
Reserve." The first of these was the employer's location. The
Court found that the registered office of the employer was on
Reserve. Similarly, the directing mind of the operation, Isobel
McNab, lived on reserve. The working ordinary day-to-day
administration of the Council, however, took place in Regina.
The Court found that: "The purpose of the Council was to assist
Indian women on the reserves and the evidence is clear that the
Council did so and that its operations off the reserve were
ancillary to its work on the reserves. In these circumstances I find
CONTINUED PAGE 8
M A R C H / A P R I L 1993
Page 5
SPECIFIC CLAIMS RESEARCH UPDATE
The past year has been a very busy time for U B C I C ' s
Specific Claims Research Program. The number of specific
claims being researched by Thalassa Research and Mandell
Pinder on behalf of U B C I C member bands has increased
100% since 1990-91. There are now over 100 specific claims
on our active workplan for 1993-94!
Although the workload has increased dramatically, we
completed research, legal analysis and statements of claim
on 12 specific claims in 1992-93. In addition, 4 claims were
submitted in 1992-93 to the D I A Specific Claims Branch and
other agencies for settlement. The Union is proud that this
high level of service and productivity for member bands has
been maintained over the past five years, despite minimal
increases in research funding.
In the past year, the Union has initiated discussions
w i t h the Province o f B r i t i s h C o l u m b i a ( M i n i s t r y o f
Aboriginal Affairs; Heritage Conservation Branch, Ministry
of Tourism & Culture) regarding settlement o f "Douglas
reserve" claims and protection of graveyards, burial areas
and sacred sites under First Nation jurisdiction. We are
hopeful that these efforts will bear fruit over the next six
months.
A national Research Directors meeting and workshop
was held in Ottawa on February 23-25, 1993. Peter Parker
(Thalassa) and I attended the meeting. Peter attended the
research skills workshop sessions and used the rest of his
time in Ottawa to do specific claims research for member
bands at the Treaties & Historical Research Centre (DIA)
and the Public Archives of Canada. (Peter brought back 30
lbs. of file documents!) I attended the Research Directors
meetings, w h i c h dealt w i t h s p e c i f i c c l a i m s p o l i c y
developments, research funding and information exchange. I
also attended workshops on right-of-way claims, accessing
trust fund accounts, and the Saskatchewan Treaty Land
Entitlement Framework Agreement.
The Chiefs Committee on Claims will be meeting in
Halifax, Nova Scotia on A p r i l 15-16, 1993 to review the
work of the Federal Government/First Nations Joint Working
Group on Claims Policy. If the J W G is successful, there
could be a new specific claims policy in 1994.
Finally, congratulations to the Tsartlip Band for
achieving a successful negotiated settlement of their "Goudy
R o a d " claim. The late Philip Paul was instrumental in
moving this claim forward " o n the ground" and at the table.
His inspiration and leadership will be missed.
Dan Gottesman, Ph.D.
U B C I C Research Director
U N I O N O F B.C. I N D I A N C H I E F S
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Page 6
M A R C H / A P R I L 1993
RESOURCE CENTRE UPDATE
Resource Centre Move
Microfilming Workshop
The Resource Centre was finally moved up to our new
seventh floor location over the December 5th weekend. The
collection fits into the new space as i f it was designed for
the Library. Operation of the Library day-to-day functions can
be now done more efficiently and the ability to assist users with
their research requirements has been enhanced because of the
improved layout and arrangement of the Library.
I will be attending a day long workshop on Preservation/
Conservation Microfilming on March 10th. Because we want
to preserve documents and conserve space, microfilm will
become an even more important format as time goes on.
Collection Development
The continued growth of the Library collection is
evidenced in the new book displays on top of the shelving units
and the overflowing shelves of new material in my office. It is
almost a full-time job just trying to keep on top of the
information explosion around aboriginal issues.
I am also trying to improve the "Quick Reference" files
so that the types of information asked for again and again is
quickly accessible.
The verbatim transcripts from the first two rounds of the
Royal Commission on Aboriginal Affairs are available on a
computerized full-text retrieval database and we hope to
purchase this database in the new budget year. This program
will permit individual analysis for purposes of education and
research.
I also hope to add to the Library collection in the new
budget year a very valuable service called " M i c r o l o g " .
Government documents are time consuming to acquire and
catalog , difficult to keep up on, and take up a great deal of
space. The Special Collection on Native Peoples within the
Microlog service provides all government documents on native
issues in microfiche format through a single subscription
service. The collection comes with its own indexing so that
documents are easily retrievable.
Automating the Resource Centre Catalog
In January, I put a great deal of time into researching
software programs available for automating the Library catalog
as well as other Library functions such as acquisitions. The
collection has grown so large that manually cataloguing
materials and accessing them with a printed catalog is no
longer efficient. In fact, we simply can not catch up or keep up
with cataloguing using a manual system. It was decided to
acquire a software program called " I N M A G I C PLUS for
Libraries" as soon as funding is made available by the new
budget. This program also allows the option of providing online access via computer modem to our Library catalog in
future. I N M A G I C PLUS is also being considered for records
management of the U B C I C administration and research files.
M A R C H / A P R I L 1993
First Nations Library Workshop (Information
has been provided to your band/tribal council)
The British Columbia Library Association's First
Nations Interest Group is sponsoring, in co-sponsorship with
the UBCIC and the Gitskan Wet'Suwet'en Hereditary Chiefs, a
one day pre-conference workshop on First Nations Libraries at
the B C L A Annual Conference in Penticton on April 22. This
workshop will be of interest to School Band Library staff as
well as staff from Bands or Tribal Councils which have or wish
to set up libraries. I will be conducting a segment of the
workshop on running a small library and anyone interested can
call me for more information at our Vancouver office number
(684-0231). Some funding may be available to assist with
costs. Registration forms have gone to Band and Tribal
Council offices. Late registrations can still be sent in but do it
as soon as possible.
Resource Centre Policy
Resource Centre policy is on the agenda for the Chiefs
Council meeting March 1 l-13th. I will be making some
recommendations for policy changes which I will report in the
next Newsletter.
In the meantime i f you have any information queries which I
can help with or there is anything which you would like me to
specifically report on in the next Newsletter please call me. I
hope in subsequent Newsletters to be able to provide a short
bibliography of new key titles published on aboriginal issues
and information about where these documents can be acquired.
Wendy Ancell
U B C I C Librarian
Page 7
LEGAL UPDATE
(CONTINUED FROM PAGES)
that the employer's location was on the Gordon Indian Reserve."
The Court found that the location of the appellant's work
was off Reserve in Regina. The appellant's legal residence was
found to be the Gordon Indian Reserve, although she lived
approximately 5 days of each week of the year in Regina. The
Court found that the place of the appellant's income payments was
mainly on Reserve, although payment sometimes occurred in
Regina.
The Court then concluded that Ms. McNab's employment
income was located on Reserve. Of particular importance appears
to be the fact that the purpose of the employer (the Council) was
solely to benefit Indian people on Reserve: "The employer's
location was on the Gordon Indian Reserve. The appellant worked
partly in Regina and partly on various reserves all over
Saskatchewan... she attended upon Isobel McNab in order to have
cheques signed and at other times parts of her work were
conducted on other reserves when she attended upon Isobel
McNab. The appellant's residence was on the Gordon Indian
Reserve. Seventy-five percent of the time she was paid on the
Gordon Indian Reserve. All of her work was with Indians and
all of her work was on the instructions of an employer whose
sole purpose was to benefit Indians on reserve." (emphasis
added)
The case is useful in that it provides authority that the
Williams decision does not require that work be physically
performed on the Reserve in order to attract the exemption
provided by section 87 of the Indian Act. One "connecting factor"
of significance will be whether or not the purpose of the work is for
the benefit of Indian people on Reserve.
S p e c i f i c C l a i m s : T s a r t l i p Indian B a n d : S e t t l e m e n t
The village of Wjolelp, the winter home of the Tsartlip
people, was only partially set aside as a reserve by the Joint
Reserve Commission in 1877. Even though the Reserve
Commissioners were instructed to set aside the whole of the village
site, much of this territory was excluded when only 483 acres were
protected as reserve land.
Lot A on Gowdy Road is within the village site of Wjolelp,
and it was not included within I.R. #1. In 1875 the Province of
British Columbia issued a Crown grant for all of an area which
they called Section 9. Section 9 was subdivided in 1921 and Lot A
was part of that subdivision. In 1942 the Federal Government
acquired Lot A from a man named John Brooks and used the
property as a transmitter station during World War II. In 1985 the
Department of Public Works issued a notice that the land was no
longer required for public works. DIA did not take any action on
the Band's behalf regarding the proposed sale, even though they
were advised that this land was included within the 1987 Saanich
Indian Territorial Declaration. The land was sold to the School
Board in April of 1987 who wanted to build a school on that site.
The late Philip Paul and other members of the Saanich people
physically camped on the site and prevented the construction of the
school.
An agreement has now been approved between Canada, the
Tsartlip Band Council, and the School Board. Lot A will be
returned to the Tsartlip Band, and the Minister will recommend that
it be turned into an Indian reserve.
CHIEFS MASK BOOKSTORE & GALLERY
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T-SHIRTS
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DROP IN TODAY!
TRADITIONAL MUSIC
AND M U C H MORE!
Owned and operated by the Union of B.C. Indian Chiefs.
Page 8
M A R C H / A P R I L 1993
Union of B.C. Indian Chiefs
NEWSLETTER
MARCHIAPRIL 1993
Our Fishery: "The genocide must stop!"
Over the last few weeks and especially so since the last river fishery season the rhetoric on Indian Fishing has
escalated to high-decibel levels.
Special interests, suchas the Fishermans Survival
Alliance, put forth the line that fair arrangements
with Indian Peoples are “‘racist’*. The fact is
<“sthat the rights of our Peoples, whether they are
hunting, fishing or land rights, are neither racist nor ‘‘special’’.
Ourrights are legitimate, constitutionally- recognized rights arising
from the fact that we are the original peoples in British Columbia
and we continue to live in our homelands as we have for hundreds
of generations. We view ourselves as distinct Peoples and we
expect to be recognized and respected as such.
It follows, therefore, that the Indian Fishery in this province
is as legitimate, if not more so, than the current non-native fishing
regime. The question is not how much fish do Indians want to take
but how much of our fishery are Indian Peoples willing to share.
For non-native Canadians, the fish resource indeed falls
under the jurisdiction of Canada. However, the question of
jurisdiction has never been settled with Indian Peoples in this
province. A resolution of this issue is urgently needed but it
certainly cannot be made under the auspices ofenhancing food fish
permits, as is currently being promoted by the DFO. The only
appropriate process for achieving a settlement is Nation-to-Nation
treaty-making between our respective Nations and Canada.
The dire economic conditions which our Peoples face
cannot be underestimated or ignored. When the economic guts of
our Indian communities were torn out at the end of the last century
by government policiesand settlers’ greed, fewnon-natives objected
or cared. It is ironic that now, when the task of economic renewal
should begin, non-native greed and fear is generating a chorus of
nay-saying and blame.
The settler governments in colonial times made
commitments to our people in the name of the Queen. We have not
forgotten our history, despite the laws passed by Canada and
British Columbia to erase the Land Title issue from our minds and
hearts. It is time that the promises of the Queen are made good
through treaties based upon Nation-to-Nation principles mutually
agreed upon -- principles which will ensure Indian Peoples’
survival many generations into the future.
To the citizens of our Indian Nations and to all right-minded
Canadians, no amount of fear-mongering, racist appeals, or efforts
to discredit our rights can bury our legitimate economic grievances.
For too long our People have been shunted aside, bullied, ridiculed,
and dictated to through legislation, policy directives and judicial
orders.
Our Indian Peoples’ humanrights have been violated by the
refusal of Canada to recognize our Sovereign political, economic,
social cultural and spiritual rights -- our Nations’ right of self-
determination. The genocide must stop! The Aboriginal Title and
Rights of Indian Peoples within our respective homelands must be
recognized now and into the future. No fair minded individual
should disagree.
UBCIC: March 8, 1993
SPECIAL EDITION
IN THIS ISSUE ...
Message from the President pb. 2
Education Update __ p.3
Tribute to Philip Paul p. 4
Legal Update p. 5
Specific Claims p. 6
Resource Centre Update ___ pp. 7
MARCH/APRIL 1993
Page |
=
MESSAGE FROM THE PRESIDENT:
n February 8th, Chiefs
O Kathy Wallace, Lawrence
Pootlass and Archie Jack
accompanied me to Ottawa to raise
the issue of our aboriginal and
treaty right to education.
Unfortunately Chief Rose Charlie
was unable to go. Rhonda Johnson
filled in at the very last moment.
Rhonda, for those that do not
know, is an articling law student
who will be working with the Union of B.C. Indian Chiefs over
the next year.
As a group we met with members of parliament for the
New Democratic Party, Liberal Party, and the Chairman of the
Standing Committee on Aboriginal Affairs, a sitting M.P. for
the Conservative government. We had requested a meeting
with Minister Tom Siddon but he suggested we meet with one
of his officials, so we declined. As chiefs we wished to meet
with elected members of parliament. The major issue is that of
education.
1. The M.T.A. lapsed last June and we need a new
approach to any future agreements. We indicated that any
agreement must clearly recognize the authority of our people in
the area of education. This would permit greater control by and
accountability to our respective Peoples. With recognized
control we would also have greater control to address the
special needs of our students. The matter of tuition contribution
disparity between the public school system and the on reserve
school system was also cited. This is where the public school
system may receive $4000.00 per pupil while the on reserve
school tuition may be half of that at $2000.00 per pupil.
2. In post secondary education we demanded that all of
our students who qualify for entrance to a post secondary
institution should be funded. We mentioned here the fact that
many students did not apply because they had heard that there
were no funds available. Many students are also forced to live
in substandard conditions due to the cost of rent, food and
transportation plus other charges, (child care) etc.
We also reported that Indian Affairs was carrying out
post secondary education reviews where they demanded to
review the files of the students. If the bands did not cooperate,
D.1.A. threatened funding cuts or termination of funding.
3. Other issues brought to the attention of M.P.’s were
taxation, our objection to any registration of the U.B.C.I.C. as
lobbyists, the fishery is a right, not a commercial food fish
privilege subject to the laws of Canada and British Columbia.
More meetings will be had with parliamentarians over
the next few months so that our position that education is an
aboriginal and treaty right will clearly be understood.
The support for our citizens on this issue is very
important. We cannot permit the government to abdicate its
fiduciary obligation to our future generations.
GEORGE MANUEL INSTITUTE
OF INDIAN GOVERNMENT
Grand Chief George Manuel
passed away during the Union of B.C.
Indian Chiefs’ 21st Annual General
Assembly in 1989. In the years since his
passing, the Union has wanted to honour
George’s life, works, and legacy in a
special way.
Throughout his life, George
Manuel worked to advance the cause
of aboriginal rights and self-determination in our communities
and at the national and international levels. George set very
high professional and political standards for leadership. He
believed that education was the springboard for political action
and that both were essential for indigenous peoples to achieve
self-determination in their homelands.
In 1990, Chief Saul Terry approached the Manuel family
for approval of the idea of establishing an ‘‘Indian Government
Institute’’ as a /iving memorial to George Manuel.
Representatives of the Manuel family indicated their approval.
At UBCIC’s 23rd Annual General Assembly in 1991,
delegates ratified a discussion paper as the first step to
establishing the George Manuel Institute of Indian
Government. The discussion paper proposed that the Institute
be established along the lines of the Saskatchewan Federated
Indian College -- an independent, Indian-controlled institute
affiliated with an established university for degree-granting and
fund-raising purposes.
The UBCIC Resource Centre library will become the
Institute’s hub for teaching, research and publishing activities.
In keeping with George Manuel’s values, commitment and life-
long work, the Institute will focus on four areas: 1) Political
Development & Leadership; 2) Indian Government
Administration; 3) Economic & Social Development; and 4)
International Relations.
Under the direction of the UBCIC Chiefs’ Council, the
overall development plan for the Institute is being carried out
by Chief Bernard Charles (Semiahmoo) and Rhonda Johnson
(articling student).
While this planning is underway, the Chiefs’ Council
has approved the start-up this spring of an Institute workshop
on First Nation Leadership Training. The workshop will cover
such topics as: aboriginal title and rights, the Royal
Proclamation, the Indian Act, land management, fiscal
management, labour relations, duties and obligations of the
Federal Crown, and introduction to First Nation organizations.
The Chiefs’ Council has also approved a “‘First Nation
Jurisdiction for First Nation Justice Conference”’ jointly
sponsored by the First Nation Tribal Justice Institute and the
George Manuel Institute of Indian Government. It is scheduled
for June 1, 2, 3, 1993 in Mission, B.C.
For more information about the George Manuel Institute
of Indian Government, contact the Union of B.C. Indian Chiefs.
at 684-0231.
=f
Page 2
MARCH/APRIL 1993
STEERING COMMITTEE ON INDIGENOUS
EDUCATION
HE COMMITTEE emerged from a series of meetings that followed the cut-backs in post-secondary education in 1989. We have
been working for the past year in preparation for a lobby in Ottawa. The lobby was set for the week of March 8th - 12th but was
postponed when the Prime Minister announced his imminent resignation. As the Union receives no funding for educational
matters, the local community and tribal councils have been paying the expenses of their representatives.
A WRITTEN PRESENTATION has been prepared by the Tsilhqot’in Tribal Council and approved by the committee. This is
an all-purpose paper that will serve as a presentation to Parliamentary Committees and to the Human Rights Commission, as information
for Aboriginal Affairs critics and the native press, and as briefing notes for the lobbyists.
OUR POSITION is that we accept the principles and recommendations on education adopted by the Assembly of First Nations
in 1991, a copy of which is attached. We uphold and maintain the principle of the international relationship between our nations and
Canada, together with the primacy of our relationship with the Parliament of Canada: this means that any involvement with the provinces
or with local or independent school boards must be secondary and at the discretion of the local communities involved. We insist that
funding for education shall be transferred from Ottawa only according to the direction of the local communities. We further insist that
our jurisdiction over education extends beyond the small reserves that have been established without our consent; it extends to all of our
people in all of our traditional territory. We are convinced that the only fair policy in post-secondary education is that any student who
is recognized by his (or her) local community as being qualified for further education must be funded.
OUR PURPOSE is to require the Parliament of Canada to return to the indigenous nations and communities the jurisdiction over
education that was stolen from us about a hundred years ago. The attempt by Canada to control the public education of our people is
illegal and has failed badly. The effects of the residential schools will be with us for several generations to come and it is clear that the
provincial system is not serving us well. We have no doubt that matters will not improve until ourright to control our own public education
is recognized, respected and honoured. A draft bilateral agreement on education that would replace the Master Tuition Agreements has
been sent to Ottawa. For further information contact Dianna Rai at the at the Union of B.C. Indian Chiefs Vancouver Office at (604)
684-0231.
Ray Hance, Chairman
CALENDER OF EVENTS
Chiefs Committee _on Claims - April 15-16, 1993, Halifax, Nova Scotia
Conyat 3rd Annual Traditional POWWOW - April 16, 17, 18, 1993, Merrit, B.C., Nicola Valley
Memorial Arena. For more information contact Richard Jackson tel: (604) 378-5107. Absolutely no drugs or
alcohol allowed.
Union of B.C. Indian Chiefs Lobby on Education - April 26th-30th, 1993, Ottawa, Ontario.
Native Intercampus Student Network Rally on Education - April 27th, 1993, @ D.I.A. B.C.
Regional Offices (1550 Alberni Street) 10:30 a.m. and speakers beginning at noon. Contact Mike Desjarlais
(NEC) 873-3761 (messages only) Home: 251-1270 or Oscar Swanson at 877-0329. Fax: 873-9152 Attention:
Native Indian Student Network.
First Nations Jurisdiction for First Nations Justice Conference - June 1, 2, 3, 1993, Mission,
B.C., Toti:lthet Centre.
For more information on any of these events please contact the Union of B.C. Indian Chiefs
Vancouver Office at (604) 684-0231.
| :
MARCH/APRIL 1993 Page 3
TRIBUTE TO PHILIP PAUL
I did not know that responding to a request to fill a job
vacancy, through a mutual friend, would change the course of
my life. Perhaps that was always the way it was for people
who were in contact with or worked for Philip Paul.
It certainly was the case for me in 1968, when the
challenge was offered to instruct an art class totally comprised
of Indian people. I was newly graduated from the Vancouver
School of Art and Philip placed his confidence in me despite
my inexperience. He left the structure of the program in my
hands. Philip attended to the frustrating administrative
requirements. Our course of the studies was approved and
there was no shortage of mature students.
When Philip
interviewed me for the
position he said, as part
of the sales pitch, that
Victoria was a great
place to be, especially
during the winter
months, because it never
really got exceptionally
cold nor did it snow. As
a weatherman, Philip
may not have done well
because that winter
about two feet of snow
came down.
It blanketed the
small cottage that Philip
and his wife Frances so
generously provided for
me to live in. It was
located behind their
home on Clarke Road in
Brentwood Bay.
When Philip
hired me I really was
not involved in Indian politics but the issues of education,
housing, employment, administration and funding were often
discussed in meetings at the Institute of Adult Studies.
Although I did not know it at the time, my political education
had begun under the tutelage of one of the most politically
astute Indian leaders in the province. Philip was involved with
the North American Indian Brotherhood and he along with
other Chiefs founded the Union of B.C. Indian Chiefs in 1969.
That was the year that Philip introduced me to George
Manuel. Philip also invited me to join them for a lunch
meeting in the cafeteria of the Institute of Adult Studies (now
Camosun College).
Philip Paul and George Manuel leading the Constitution Express march
in Ottawa, 1981.
George was contemplating a change of employment
and he was consulting with Philip on the pros and cons of the
move. Years later George confided to me that he often sought
Philips counsel. Philip advised George when he served as
President of the National Indian Brotherhood and afterward
when George was elected president of the Union of B.C.
Indian Chiefs.
Philip was involved in the Indian land question
throughout his life. Some may recall that he was clubbed over
the head on the steps of parliament at Ottawa. It was during
one of our demonstrations against the patriation of the
constitution. At the same time, Philip was totally involved
with culture and
education. He was
instrumental in building
Lau Welnew Sculhautw
on the Tsartlip Reserve.
In the past four years,
Philip, once again
became more active with
the Union of B.C. Indian
Chiefs. After being
retired from his
Saanichton School Board
position, Philip gave the
Union of B.C. Indian
Chiefs the benefit of his
wit and wisdom on many
occasions. He chaired
many of our
conferences; our
provisional government
conference held in
Mission on April of 1992
and our latest conference
on October 21, 22, 23,
1992 were both chaired
by Philip despite his failing health.
Philip Paul’s honours and achievements are numerous:
founding member and Grand Chief of the Union of B.C.
Indian Chiefs, elected chief of Tsartlip Band, athlete, leading
educator, political advisor, loyal friend and most of all a
champion of the ordinary people of our Indian Nations.
His death on the evening of December 21, 1992 has left
a numbness in my heart and soul that will not soon depart but
one thing is certain. Philip Paul continues to influence and
present challenges for vision in my life.
Chief Saul Terry
Page 4
MARCH/APRIL 1993
LEGAL UPDATE
Fishing Cases .
There have been two recent trial decisions related to the
aboriginal right to fish. The first was the decision of Judge
Saunderson of the Provincial Court of B.C. in Regina vs. Dick,
Court No. 16555. Judge Saunderson held that the Lekwiltok
tribe could not establish an aboriginal title or right over the area
in which Ralph Dick was fishing, because he held that at that
time the Crown asserted sovereignty the Lekwiltok were not
exclusively occupying that area. Although it was unnecessary
for his decision, he went on to hold that barter was only
incidental to the Lekwiltok’s existence before the coming of
Europeans, and was not the focal point of their attempt to earn
a livelihood. Based on these findings, Saunderson went on to
reject the ruling of Judge Selbie in Vanderpeet and apply
McEachern’s decision in Delamuukw to decide that pre-contact
aboriginal barter does not give rise to an aboriginal right to sell
fish in a modern context, In addition, ignoring the ruling in
Sparrow, he held that the aboriginal right to sell fish, if it
existed, had been extinguished by the B.C. Fisheries
Regulations. The decision will be appealed.
The second case is the decision of Judge Collier of the
Federal Court, Trial Division in Ceci! Reid et al. v. Her
Majesty the Queen in Right of Canada & DFO et al. In this
case the Heiltsuk people asserted that their aboriginal fishing
right entitled them, as of right, to a license to carry on their roe
on kelp fishery for food, ceremonial and commercial purposes.
The Court rejected the Heiltsuk people’s arguments and held
that because their pre-contact fishery was not a market system
they had not established that commercial harvesting of roe on
kelp was ever part of their aboriginal right.
In both of these decisions the court adopted a frozen
rights theory, ignoring the decision of the Supreme Court of
Canada in Sparrow. Many of the issues raised in both of these
cases are before the B.C. Court of Appeal in the 6 fishing
appeals. The decisions in those appeals are expected in late
May, 1993.
Taxation Update
In April of 1992, the Supreme Court of Canada released
its ruling in Williams v. Canada. The Court ruled that the
unemployment benefits received by an Indian person were
exempt from taxation if that person was eligible for those
benefits due to employment income which was tax exempt
under section 87 of the Indian Act. Although the case itself
was a victory, the wording of part of the Judgement has created
some uncertainty as to whether or not it can still be assumed
that the income of an Indian person will be exempt from
taxation if their employer is located on Reserve :
"It has been assumed by the parties that the previous
employment of the appellant which gave rise to the
qualification for unemployment insurance benefits was
also located in reserve, since the two employers in question
were located on reserve, This question must be reexamined
in light of our determination that this conclusion cannot
safely be drawn from the principles of conflict of laws."
jat pages 23 to 24, emphasis added].
MARCH/APRIL 1993
As a result of the Williams decision, revenue Canada
released a revised policy with respect to the application of the
Indian Act tax exemption on December 29, 1992. Revenue
Canada maintains that:
" ., the salary of an Indian will no longer be exempt merely
because it is paid by an employer situated on a reserve. The
principal factor connecting income to a reserve will now be
where the duties are carried out. The location of the
employer will continue to be a factor, but other factors
connecting the income to the reserve will also have to be
present for the income to be tax exempt..." [emphasis added]
We note that there is nothing in the Williams decision to
support the contention that “‘the principal factor connecting
income to a reserve will now be where the duties are carried
out’’. This is nowhere stated in the decision. In fact the Court
specifically states that with the facts before them it:
"... would not be an appropriate case in which to develop a test
for the situs of the receipt of employment income. All the
potential connecting factors with respect to the qualifying
employment of the appellant point to the reserve. The
employer was located on the reserve, the work was performed
on the reserve, the appellant resided on the reserve, and he was
paid on the reserve...”
No doubt the questions left unresolved by the Williams
decision will be the subject of further litigation. We are aware
of one case decided since the Williams decision which begins
this process of determining what factors will provide a
sufficient ‘‘connection’’ to the Reserve to attract the benefits of
section 87.
In Brenda McNab v. Canada the Court was asked to
decide whether the income of a Native woman employed by the
Saskatchewan Treaty Indian Women’s Council was exempt
from taxation. The evidence revealed that Ms. McNab was a
treaty Indian. Her employer, the Saskatchewan Treaty Indian
Women’s Council, was found to be an organization which
worked ‘‘...with and for women and children on Indian reserves
in Saskatchewan for their health, protection and betterment."
The Court found that the driving force behind the Council was
Isobel McNab who resided on the Gordon Indian Reserve.
Some of the Council’s records were stored at Isobel McNab’s
residence. The Council also had an office and a telephone off
reserve in Regina. The letterhead of the Council listed the
Regina address and telephone number. All ordinary
administration and clerical work was found to be conducted in
the Regina office while financial records were taken out to the
Gordon Reserve and cheques were signed there by Isobel
McNab about twice a month.
The Court analyzed a number of factors to determine
whether the income of Ms, McNab was ‘‘situated on the
Reserve.’’ The first of these was the employer’s location. The
Court found that the registered office of the employer was on
Reserve. Similarly, the directing mind of the operation, Isobel
McNab, lived on reserve. The working ordinary day-to-day
administration of the Council, however, took place in Regina
The Court found that: "The purpose of the Council was to assist
Indian women on the reserves and the evidence is clear that the
Council did so and that its operations off the reserve were
ancillary to its work on the reserves. In these circumstances I find
CONTINUED PAGE 8
Page 5
SPECIFIC CLAIMS RESEARCH UPDATE
The past year has been a very busy time for UBCIC’s
Specific Claims Research Program. The number of specific
claims being researched by Thalassa Research and Mandell
Pinder on behalf of UBCIC member bands has increased
100% since 1990-91. There are now over 100 specific claims
on our active workplan for 1993-94!
Although the workload has increased dramatically, we
completed research, legal analysis and statements of claim
on 12 specific claims in 1992-93. In addition, 4 claims were
submitted in 1992-93 to the DIA Specific Claims Branch and
other agencies for settlement. The Union is proud that this
high level of service and productivity for member bands has
been maintained over the past five years, despite minimal
increases in research funding.
In the past year, the Union has initiated discussions
with the Province of British Columbia (Ministry of
Aboriginal Affairs; Heritage Conservation Branch, Ministry
of Tourism & Culture) regarding settlement of ‘‘Douglas
reserve’ claims and protection of graveyards, burial areas
and sacred sites under First Nation jurisdiction. We are
hopeful that these efforts will bear fruit over the next six
months,
A national Research Directors meeting and workshop
was held in Ottawa on February 23-25, 1993. Peter Parker
(Thalassa) and I attended the meeting. Peter attended the
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research skills workshop sessions and used the rest of his
time in Ottawa to do specific claims research for member
bands at the Treaties & Historical Research Centre (DIA)
and the Public Archives of Canada. (Peter brought back 30
lbs. of file documents!) I attended the Research Directors
meetings, which dealt with specific claims policy
developments, research funding and information exchange. I
also attended workshops on right-of-way claims, accessing
trust fund accounts, and the Saskatchewan Treaty Land
Entitlement Framework Agreement.
The Chiefs Committee on Claims will be meeting in
Halifax, Nova Scotia on April 15-16, 1993 to review the
work of the Federal Government/First Nations Joint Working
Group on Claims Policy. If the JWG is successful, there
could be a new specific claims policy in 1994.
Finally, congratulations to the Tsartlip Band for
achieving a successful negotiated settlement of their ‘‘Goudy
Road’’ claim. The late Philip Paul was instrumental in
moving this claim forward ‘‘on the ground”’ and at the table.
His inspiration and leadership will be missed.
Dan Gottesman, Ph.D.
UBCIC Research Director
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Page 6
MARCH/APRIL 1993
a
Resource Centre Move
The Resource Centre was finally moved up to our new
seventh floor location over the December Sth weekend. The
collection fits into the new space as if it was designed for
the Library, Operation of the Library day-to-day functions can
be now done more efficiently and the ability to assist users with
their research requirements has been enhanced because of the
improved layout and arrangement of the Library.
Collection Development
The continued growth of the Library collection is
evidenced in the new book displays on top of the shelving units
and the overflowing shelves of new material in my office. It is
almost a full-time job just trying to keep on top of the
information explosion around aboriginal issues.
I am also trying to improve the ‘‘Quick Reference’ files
so that the types of information asked for again and again is
quickly accessible.
The verbatim transcripts from the first two rounds of the
Royal Commission on Aboriginal Affairs are available on a
computerized full-text retrieval database and we hope to
purchase this database in the new budget year. This program
will permit individual analysis for purposes of education and
research.
I also hope to add to the Library collection in the new
budget year a very valuable service called ‘‘Microlog’’.
Government documents are time consuming to acquire and
catalog , difficult to keep up on, and take up a great deal of
space. The Special Collection on Native Peoples within the
Microlog service provides all government documents on native
issues in microfiche format through a single subscription
service. The collection comes with its own indexing so that
documents are easily retrievable.
Automating the Resource Centre Catalog
In January, I put a great deal of time into researching
software programs available for automating the Library catalog
as well as other Library functions such as acquisitions. The
collection has grown so large that manually cataloguing
materials and accessing them with a printed catalog is no
longer efficient. In fact, we simply can not catch up or keep up
with cataloguing using a manual system. It was decided to
acquire a software program called “‘INMAGIC PLUS for
Libraries’ as soon as funding is made available by the new
budget. This program also allows the option of providing on-
line access via computer modem to our Library catalog in
future. INMAGIC PLUS is also being considered for records
management of the UBCIC administration and research files.
-)- RESOURCE CENTRE UPDATE _@,
Cay
Microfilming Workshop
I will be attending a day long workshop on Preservation/
Conservation Microfilming on March 10th. Because we want
to preserve documents and conserve space, microfilm will
become an even more important format as time goes on.
First Nations Library Workshop (Information
has been provided to your band/tribal council)
The British Columbia Library Association’s First
Nations Interest Group is sponsoring, in co-sponsorship with
the UBCIC and the Gitskan Wet’Suwet’en Hereditary Chiefs, a
one day pre-conference workshop on First Nations Libraries at
the BCLA Annual Conference in Penticton on April 22. This
workshop will be of interest to School Band Library staff as
well as staff from Bands or Tribal Councils which have or wish
to set up libraries, I will be conducting a segment of the
workshop on running a small library and anyone interested can
call me for more information at our Vancouver office number
(684-0231). Some funding may be available to assist with
costs. Registration forms have gone to Band and Tribal
Council offices. Late registrations can still be sent in but do it
as soon as possible.
Resource Centre Policy
Resource Centre policy is on the agenda for the Chiefs
Council meeting March 11-13th. I will be making some
recommendations for policy changes which I will report in the
next Newsletter,
In the meantime if you have any information queries which I
can help with or there is anything which you would like me to
specifically report on in the next Newsletter please call me. I
hope in subsequent Newsletters to be able to provide a short
bibliography of new key titles published on aboriginal issues
and information about where these documents can be acquired.
Ly
Wendy Ancell
UBCIC LIbrarian
MARCH/APRIL 1993
Page 7
LEGAL UPDATE (conTINUED FROM PAGE 5)
that the employer’s location was on the Gordon Indian Reserve."
The Court found that the location of the appellant’s work
was off Reserve in Regina. The appellant’s legal residence was
found to be the Gordon Indian Reserve, although she lived
approximately 5 days of each week of the year in Regina. The
Court found that the place of the appellant’s income payments was
mainly on Reserve, although payment sometimes occurred in
Regina.
The Court then concluded that Ms. McNab’s employment
income was located on Reserve. Of particular importance appears
to be the fact that the purpose of the employer (the Council) was
solely to benefit Indian people on Reserve: "The employer’s
location was on the Gordon Indian Reserve. The appellant worked
partly in Regina and partly on various reserves all over
Saskatchewan... she attended upon Isobel McNab in order to have
cheques signed and at other times parts of her work were
conducted on other reserves when she attended upon Isobel
McNab. The appellant’s residence was on the Gordon Indian
Reserve. Seventy-five percent of the time she was paid on the
Gordon Indian Reserve. All of her work was with Indians and
all of her work was on the instructions of an employer whose
sole purpose was to benefit Indians on reserve."" (emphasis
added)
The case is useful in that it provides authority that the
Williams decision does not require that work be physically
performed on the Reserve in order to attract the exemption
provided by section 87 of the Indian Act. One ‘‘connecting factor”’
of significance will be whether or not the purpose of the work is for
the benefit of Indian people on Reserve.
Specific Claims: Tsartlip Indian Band: Settlement
The village of Wjolelp, the winter home of the Tsartlip
people, was only partially set aside as a reserve by the Joint
Reserve Commission in 1877. Even though the Reserve
Commissioners were instructed to set aside the whole of the village
site, much of this territory was excluded when only 483 acres were
protected as reserve land.
Lot A on Gowdy Road is within the village site of Wjolelp,
and it was not included within I.R. #1. In 1875 the Province of
British Columbia issued a Crown grant for all of an area which
they called Section 9. Section 9 was subdivided in 1921 and Lot A
was part of that subdivision. In 1942 the Federal Government
acquired Lot A from a man named John Brooks and used the
property as a transmitter station during World War II. In 1985 the
Department of Public Works issued a notice that the land was no
longer required for public works. DIA did not take any action on
the Band’s behalf regarding the proposed sale, even though they
were advised that this land was included within the 1987 Saanich
Indian Territorial Declaration. The land was sold to the School
Board in April of 1987 who wanted to build a school on that site.
The late Philip Paul and other members of the Saanich people
physically camped on the site and prevented the construction of the
school.
An agreement has now been approved between Canada, the
Tsartlip Band Council, and the School Board. Lot A will be
returned to the Tsartlip Band, and the Minister will recommend that
it be turned into an Indian reserve.
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MARCH/APRIL 1993
Part of Union of B.C. Indian Chiefs Newsletter (March/April 1993)