Union of B.C. Indian Chiefs Newsletter (December 1997)

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Union of B. C.
Indian ChiefsNEWSLETTER
"Our Land is Our Future"

Supreme Court Confirms Existence of
Aboriginal Title in Delgamuukw
Province does not have the right to extinguish aboriginal title
The Supreme Court of manner i n which the
will enable both the federal
and provincial governments
Canada recently released
questions on appeal were
to argue that the particular
its ruling in the historic
framed.
use to which an Indian nation
Delgamuukw case in which
While the Court
Gitksan and
or
Wet'suwet'en
community
For the first time in Canadian history,
hereditary
has put a
the unanimous bench of the Supreme Court of piece of
Chiefs sought
recognition
land has
Canada affirmed the existence of aboriginal
of their
acted to
title, as beyond mere rights to practice
aboriginal
cancel their
title over
particular activities, to "the right to the land
aboriginal
their
title in that
itself".
traditional
land :
territories.
"The
For the first time in
recognized the existence of
content of aboriginal title
Canadian history, the
aboriginal title in the land,
contains an inherent limit in
unanimous bench of the
and there are undeniably
that lands so held cannot be
Supreme Court of Canada
positive aspects of this
used in a manner that is
affirmed the existence of
decision, in recognizing
irreconcilable with the
aboriginal title, as beyond
aboriginal title the court also
nature of the claimants'
mere rights to practice
offered its opinion on how
attachment to those lands.''
particular activities, to "the
that title should be defined,
In recognizing of
right to the land itself'.
determined, and ultimately
aboriginal title as a species of
The court did not
vacated.
aboriginal right recognized
decide the actual issues
The description of
and affirmed by section 35(1)
before it in terms of whether
aboriginal title is tied to the
of the Constitution Act,
or not the Gitksan and
Court's understanding of
1982, the court used section
Wet'suwet'en had aboriginal
what it means to be
35(1) as a mechanism for
title, under Canadian law, to
"Indian": Those uses of
balancing aboriginal interests
their traditional territories.
land which do not conform to
in land (aboriginal title) with
Rather, the case was sent
the Court's understanding of
the rights of the Canadian
back down for a new trial, on
an aboriginal usage will not
crown. The Supreme Court
the technical issues of the
be considered to be vested
of Canada d e c i s i o n
trial judge's refusal to accept
with aboriginal title.
oral histories as well as the
D E L G A M U U K W CASE
The Court opened a
significant loophole which

DECEMBER

1997

IN THIS ISSUE...
2. Messagefromthe
President
3. Statementfromthe
Indigenous Peoples Caucus
(1997 APEC Peoples'
Caucus in Vancouver)
6. Forestry Cases
10. Uncontacted Indians in
Brazil face renewed
attacks
11. UBCIC 1998 Early
Planner
12. Shuswap Nations
Fisheries Commission
13. Specific Claims Reform
Update
14. Tsilhqot'in National
Government
15. UBCIC Press Release
16 Nuxalk Nation
Government
18. Resource Centre Update

(Continued on page 4)

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UBCIC NEWS

Message

from
the President
Dear

GITXSAN AND WET'SUWET'EN
DECISION

People:

Once again it is the
season for good cheer and joy
in family gatherings. As an
Indian leader I observe that it
may also be time for Indian
political celebration as well as
Christmas season celebration.
Over the past several years the Union of B.C.
Indian Chiefs have been staying strong on the vital issue
of the Land Question policies of the federal government
and how it will affect Aboriginal Title. Many of our
people have always said, especially many of our late
leaders and elders, 'no matter what do not give up title'.
We have kept the faith sometimes in the face of severe
criticism. Different types of extreme pressure have been
applied on the Union leadership but many have not
succumbed to government enticement tactics. We must
understand that government will continue to have us
voluntarily give up, surrender, cede, extinguish our
Indianess and relationship to our homelands.
Over the next few days and weeks we will be busy
studying the Supreme Court (Delgamuukw Appeal)
decision as to its statement on Aboriginal Title. The
current understanding is that the High Court decision
came down in our (Indian Peoples) favour.
Much of the work we need to do is not only to keep
our faith in our title but to plan on how we can continue to
pull settler society along to further understand that Aboriginal Title should not ever be extinguished. To accept
extinguishment of title would be political suicide and to
have it impressed upon us is genocide.
Much strength in hard work must be done, in the
meantime, let us celebrate with our families, friends, our
communities the joys of the season and with the hope that
greater achievements will come our way in the New Year
and in the years to follow.
We shall continue to survive and live so Merry
Christmas and Happy New Year from all the staff and
their families.
Yours truly,

U N I O N OF B . C . I N D I A N C H I E F S

(Vancouver, B.C. - Dec. 11, 1997) Chief Saul Terry stated
in Ottawa today that the Union of B.C. Indian Chiefs has always
maintained that Aboriginal Tide remains unextinguished and
vested in our respective Nations. Self-determination exists as we
have not surrendered nor abandoned governance over our lands,
resources and people.
As a result of the Gitxsan and Wet'suwet'en court case, in
the Supreme Court Decision which came down today those issues
remain to be dealt with in the political and legal arenas.
The Federal Government must now expressly change its
policy on extinguishment and negotiate with our Peoples on a
Nation to Nation basis. The Provincial Government, while they
have a role to play in negotiations, does not have the authority nor
the constitutional competence of veto.
The Supreme Court has determined that facts which may
have made a difference in the court decision were not included and
that determination of aboriginal rights standards enunciated in
Van Der Peet were not met, therefore, these matters must be sent
down for retrial.
The Union of B.C. Indian Chiefs congratulates the Gitxsan¬
Wet'suwet'en Nations on a well-fought fight to protect the
sovereignty of their territories.

STAFF NEWS
The U B C I C Research Department is bidding a fond
farewell to David Roth, who has been working with the
UBICIC Specific Claims Research Program for the last
three years. We will miss Dave's cheery presence around
the office, and his tremendous help with our research
education workshops. David is leaving to work as an
independent consultant. We wish him luck!
The UBCIC is also saying goodbye to Shauna-Leigh
Maloney, who has been working as a research assistant in
support of both the Research Department and the Political
Assistant, Millie Poplar. Shauna-Leigh was a tremendous
help during the Indigenous Peoples' Caucus at the 1997
Peoples Summit on A P E C (Asia Pacific Economic
Cooperation) conference in Vancouver last November. This
marks the second time we have bid Shauna-Leigh goodbye
and wished her well! We look forward to working with her
again.

Chief Saul Terry
President

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DECEMBER 1997

UBCIC NEWS

STATEMENT OF THE INDIGENOUS PEOPLES '

CAUCUS AT THE 1997 A P E C PEOPLES SUMMIT IN VANCOU
Kia koutou katoa kua tai mai nei, tena koutou.
In the name of our Creator, of Mother Earth and in
honour of all ancestors met together here in British Columbia.
We the indigenous peoples representing the regions of
South, Central and North America, Asia, South East Asia and
the Pacific Islands begin by acknowledging the considerable
work in the arena of the rights of indigenous peoples over a
long period of time preceding this caucus. We have gathered
here at Vancouver to express our deep concerns over a wide
range of issues that continue to impact on indigenous peoples.
The indigenous peoples represented at this caucus
unequivocally oppose the A P E C processes that are represented
at the A P E C Leaders' Conference here in Vancouver. We
declare that the A P E C agenda acts to further endanger and
undermine indigenous peoples' power over their lands, their
ancestral territories and natural resources. In this regard we
vehemently oppose the agenda of the current A P E C Leaders
Meeting for fast-tracking the removal of tariffs for fisheries and
forestries.
The indigenous peoples' caucus calls on the governments
represented at the A P E C Leaders' Meeting in Vancouver to
withdraw from negotiations regarding the Multilateral
Agreements on Investment. The Multilateral Agreements on
Investment seeks to create legislation which will over-ride
international agreements in the arenas of indigenous peoples
rights, labour conventions, environmental agreements arid
regulations and human rights issues and which w i l l license
the plunder and pillage of resources in the name of
open economies and trade liberalisation.
We call on the governments represented at the A P E C
Leaders' Meeting to immediately adopt the Draft Declaration of
the Rights of Indigenous Peoples without further change or
amendment inasmuch as it reflects the minimum standards for
the protection of indigenous peoples' rights.
We also call on the governments of Canada, the United
States, Chile, Australia and Aotearoa/New Zealand to ratify the
ILO Convention 169 regarding indigenous and tribal peoples'
rights in independent countries. The ratification of these two
documents expresses the desires and aspirations of the
indigenous peoples of the world and we seek the support of the
APEC Peoples' Summit in requesting the ratification of these
documents by the A P E C governments.
The indigenous peoples' caucus at this Summit calls for
the establishment of a permanent indigenous peoples' forum at
the United Nations, to continue to support and protect
indigenous peoples' rights to self-determination.
The caucus seeks the support in efforts for the protection
of indigenous peoples' cultural and intellectual knowledge and
properties which are at this moment being plundered by
transnational pharmaceutical and manufacturing companies as
well as by genetic scientists.
The indigenous peoples' caucus deplores the devastating
impact on the social, economic, and cultural structures of

DECEMBER 1997

indigenous peoples' by mega-projects involving, for example,
clear cut logging and mining operations, the establishment of
sustainable fisheries practices and the planned construction of a
huge highway in the La Costa area of Chile which will involve
the massive dislocation of the indigenous M A P U C H E people
and the total disruption of their lives and livelihood.
We also deplore the amoral actions of the World Bank
and the International Monetary Fund which bankrupt
indigenous peoples in the name of aid and development. These
practices include attempt at land mobilisation in Papau New
Guinea as a means of accessing indigenous peoples lands, the
imposition of aid monies in the Pacific which functions to
create enormous indebtedness, and the continued occupation of
indigenous communities by military regimes in the name of
industrial development.
The indigenous peoples' caucus deplores the co-option of
state-appointed indigenous elite in efforts to gain the consensus
of indigenous peoples to practices which function to benefit the
elite minority, to further marginalise the many, and which are
in opposition to fundamental indigenous cultural and spiritual
values and practices.
The indigenous peoples' caucus is committed to the
promotion and development of alternative global networks and
strategies for sustainable and equitable development practices
which are embedded in our shared indigenous cultural values by
collectively and co-operativeness, of guardianship for the land,
and of traditionally-based methods of husbandry. To that end
we are attempting to network with other groups who are also
committed to alternative trade and economic development
strategies and alliances.
We of the indigenous peoples' caucus have determined
the continuing existence of an Indigenous Peoples' Forum on a
culturally-appropriate and self-determined basis at future APEC
Peoples' Summits beginning with that in Malaysia in 1998.
The indigenous peoples' caucus honours and uplifts the
efforts of our women and youth in renewing and preserving the
holistic way of indigenous peoples' spiritual life. In particular
we support and uphold the political and economic power of
indigenous women whose particular voice is vital in these
times.
Finally, we express our greetings and thanks to the
Tsartlip First Nation, our gratitude to the Union of B.C. Indian
Chiefs for hosting us in our meeting and our greetings and
thanks to the organisers of this 1997 A P E C Peoples' Summit.
We note with regret, however, that is has been a significant
struggle to have indigenous peoples given voice at this 1997
A P E C Peoples Summit.
Na reira, kia koutou katoa, tena koutou, tena ra koutou katoa.

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UBCIC NEWS
D E L G A M U U K W CASE (Continued from page 1)
recognized the federal and provincial right to infringe upon
aboriginal tide for valid legislative objectives (such as the
building of highways, hydro-electric dams, and settlements). As
with all legal decisions, this decisions has both its good and bad
points. It gives, while taking away; it recognizes a right,
while limiting that right through defining it further.

the exact manner which they did historically, and "there is no
reference to aboriginal practices, customs and traditions as a
qualifier o n " aboriginal title; further, "lands held pursuant to
aboriginal title, like reserve lands, are also capable of being
used for a broad variety of purposes.''
What are the limitations of aboriginal title?
In recognizing and grounding a definition of aboriginal
title in our historic relationship with the land, the Court stated
that where aboriginal people use the land i n a manner
inconsistent with their historic relationship with the land
aboriginal title will cease.
The relevance of the continuity of
the relationship of an aboriginal
community with its land here is
that it applies not only to the
\past, but to the future as well.
That relationship should not be
preventedfrom continuing into
the future. As a result, uses of
the lands that would threaten that
[future relationship are, by their
own nature, excluded from the
content of aboriginal title.

Does aboriginal title exist?
In Delgamuukw the SCC found that aboriginal rights
exist in a range or spectrum of
aboriginal rights, w h i c h
range f r o m " a c t i v i t i e s "
(such as the general right to
hunt) to "site specific"
aboriginal rights (where the
aboriginal people may have a
right to hunt on a particular
tract of land) to "aboriginal
title" (an interest in the land
itself). Aboriginal title will be
recognized only where it is
shown that a connection with a
particular piece of land is of
Examples of uses of land
central significance to a
which the court considers may be
distinctive aboriginal culture.
inconsistent with aboriginal tide
In certain instances, an
are strip mining a hunting ground
aboriginal group will only be
or building a parking lot at a
able to establish a site-specific
spiritual site. "The land has an
aboriginal right to practice an
inherent value i n itself, which
aboriginal activity (such as at a
is enjoyed by the community
particular fishing spot or hunting ground) but this is not
with aboriginal title to it. The community cannot put the land
equivalent to aboriginal title. The court gives the example of
to uses which would destroy that value." Aboriginal title is
" n o m a d i c " peoples who changed the locations of their
compared to a life interest at common law, where a person can
settlements seasonally and indicates that they may only be
have use and occupancy of property for their lifetimes, subject
entitled to site-specific aboriginal rights which are less than
to the condition that they not
aboriginal title. Aboriginal
damage or destroy the
peoples, on the contrary, see
property so as to prevent
This decision puts the courts in a position further
our "commuting" to different
usage.
areas as an indicator of our
of deciding what is and what is not an
What is the test for
overall relationship with the
proving aboriginal title in
aboriginal use of the land, and makes our
totality of our traditional
Canadian courts?
aboriginal title suspect to court decisions
territory.
In order to establish a
The court's reasoning
deciding that we have given up our title
test for proving aboriginal
suggests that aboriginal title
title, the Supreme Court
through a modern usage which they do not
may not be recognized over the
modified tests which it had
hold to be particularly "Indian ''.
entirety of our traditional
established in the fishing
territories, but rather in more
cases of Sparrow and Van
defined and specific areas.
der Peet. The test for establishing aboriginal title, as set down
What remains to be seen is whether subsequent courts will
in Delgamuukw, differs from the general aboriginal rights test
lake a holistic approach and recognize the relationship of
in two ways. First, aboriginal title must be shown at thetimeof
aboriginal peoples to our entire territory as integral to our
sovereignty, as opposed to Van der Peet which only requires
cultures or if they will limit recognition of aboriginal title to
proof at the time of first contact. And second, the need to
limited tracts of land. This will likely be an area of extensive
establish ' 'occupancy'' of the territory i n question is
litigation in the future.
heightened.
Under the definition of aboriginal title set forth in
Delgamuukw, Indian peoples are not bound to use the land in
D E L G A M U U K W CASE (Continued on page 5)

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DECEMBER 1997

UBCIC NEWS
D E L G A M U U K W CASE (Continued from page 4)

Aboriginal Title: Fair, economic, compensation required for infringement by the Federal
or provincial governments.

Aboriginal Title includes a right to use land and

the resources upon the land For the economic benefit of our Peoples.
By defining exclusive use and occupancy as essential
features of aboriginal title, the court also requires that
aboriginal peoples show that they have occupied and currently
occupy the land to the exclusion of others. Where other
aboriginal peoples used the land the court recognizes the
possibility of joint-title (if the two groups acknowledged their
respective rights to the territory while maintaining the right to
exclude other aboriginal groups). In shared territories, a claim
for aboriginal title will be strengthened by evidence that others
had to gain the permission of the aboriginal group before using
the territory.
In shared territories, the court speaks of "shared, nonexclusive, site-specific rights" which are not aboriginal tide.
How can the federal and or provincial governments
infringe upon aboriginal title?
Aboriginal title is subject to the same "justification"
tests which apply to the aboriginal rights as originally set forth
in Sparrow and recently amended in the Van der Peet,
Gladstone and N. T.C. Smokehouse fishing decisions. In
Delgamuukw, the court further lowered the justification
necessary where the federal and/or provincial governments
interfere with aboriginal title i f the federal or provincial
governments deem this infringement necessary to sustain the
interests of Canadian society.
Aboriginal title is subject to infringement by both the
federal and provincial crowns, subject to a two part justification
analysis. (1) The infringement must be in furtherance of a
compelling and substantial legislative objective, and (2) it must
be in keeping with the special fiduciary relationship between the
Crown and aboriginal peoples.
1.

Compelling and substantial legislative objective.
The compelling and substantial objectives (in plain
language, " a good reason") can include the economic
interests of Canadian society and are very broad including:
...the development of agriculture, forestry, mining, and
hydroelectric
power, the general
economic
development of the interior of British Columbia,
protection of the environment or endangered species,
the building of the infrastructure and the settlement of
foreign populations to support those aims, are the
kinds of objectives that are consistent with this
purpose and, in principle, can justify the infringement
of aboriginal title. Whether a particular measure or
government act can be explained by reference to one
of those objectives, however, is ultimately a question

DECEMBER 1997

of fact that will have to be examined on a case-by-case
basis.
It is hard to imagine what government activities would
not fall within the " v a l i d objectives" outlined above.
Practically speaking, as long as a government can show a
general conformity to one of these objectives they will have
fulfilled die first part of the justification test.
2.
Is the infringement consistent with the fiduciary
duty of the Crown towards aboriginal peoples?
Fiduciary duty ' 'does not demand that aboriginal rights
always be given priority.'' The fiduciary duty owed will vary
according to the aboriginal right in question.
In the case of a minor infringement, the duty to consult
may be limited to the duty to discuss the decision with respect of
the aboriginal lands. However, even in these circumstances
this consultation must be in goodfaith, and with the
intention of substantially addressing the concerns of
the aboriginal peoples whose lands are at issue. In
most cases, it will be significantly deeper than mere
consultation. Some cases may even require the full
consent of an aboriginal nation, particularly when
provinces enact hunting andfishing regulations in
relation to aboriginal lands.
These comments on consultation, setting out the
requirement that the government consult in ' 'good faith'' and
"with the intention of substantially addressing the concerns of
the aboriginal peoples whose lands are at issue" are positive.
Further, following die precedent it set in Guerin, the
Court emphasizes that there are economic aspects of aboriginal
title and that the Crown will have to provide fair compensation
upon its infringement of aboriginal title. "The amount of
compensation payable will vary with the nature of the particular
aboriginal title affected and with the nature and severity of the
infringement and the extent to which aboriginal interests are
accommodated.''
The economic aspect of aboriginal tide should provide
a very useful incentive to pressure the government to take
an aboriginal perspective into account in its decisions which
may impact upon aboriginal title.
Are oral histories valid evidence?
The Supreme Court of Canada overruled Judge
McEachern's dismissal and denigration of the oral evidence of
Gitksan and Wet'suwet'en elders and community members at
trial. Further, the Court recognized that the current rules of
D E L G A M U U K W CASE (Continued on page 6)

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UBCIC NEWS
D E L G A M U U K W CASE (Continued from page 5)
evidence which largely exclude oral evidence (such as stories,
legends, and community histories) create an impossible
situation for aboriginal litigants who seek to establish their
rights in Canadian courts.
Power of the province to extinguish aboriginal title.
Section 91(24) of the Constitution Act, 1867 reserves to
the federal government power over Indians and lands reserved
for Indians. This power is not limited to "reserve" lands but
encompasses all lands in which aboriginal title vests. The
province cannot intrude upon the federal jurisdiction over
"Indian lands" in a manner which would fundamentally alter
their nature.
Therefore, the province does not have a right to
extinguish aboriginal title. The interest in land granted to the
province at confederation was subject to any other existing
interests. Aboriginal tide existed at the time of confederation,
and any interest in land that the province acquired at
confederation is subject to aboriginal title. The federal
government has the right to extinguish aboriginal title, provided
that its intention to do so is clear and plain (however, due to the
economic interest recognized in aboriginal title the federal
government will be liable to pay compensation for those lands
over which it extinguished or infringes upon aboriginal tide).
Only upon extinguishment of aboriginal title can the province
assume full title to the land, but the jurisdiction to extinguish
remains with the federal government.
While provincial laws can apply to Indians on reserve,
even in a manner which has a significant impact on Indians or
their lands, they can not extinguish aboriginal tide. The
province may pass laws which are "necessarily inconsistent"
with the continued exercise of aboriginal rights, but they cannot
extinguish those rights.
O b l i g a t i o n to negotiate.
The Supreme Court emphasized the moral obligation
on the federal Crown to negotiate questions surrounding
aboriginal title in good faith:
Moreover, the Crown is under a moral, if not a legal,
duty to enter into and conduct those negotiations in
good faith. Ultimately, it is through negotiated
settlements, with good faith and give and take on all
sides, reinforced by the judgments of this Court, that
we will achieve what I stated in Van der Peet. ..to be a
basic purpose of s. 35(1) - "the reconciliation of the
pre-existence of aboriginal societies with the
sovereignty of the Crown ''. Let us face it, we are all
here to stay.
Please note, this is brief summary of our legal opinion on
Delgamuukw and does not include a detailed analysis. If you
would like further information, or a copy of the full legal
opinion, please contact Ardith Walkem at our Vancouver office
Tel: (604) 684-0231.

Legal Brief
Forestry Cases
Council of the Haida Nation v. Minister of Forest and
the Attorney General of B.C. and MacMillan Bloedel Ltd.
(B.C.C.A.), Chief Bernie Metecheah and Halfway River First
Nation v. Ministry of Forests and Canadian Forest Products
(B.C.S.C.) and Her Majesty the Queen v. Thomas Peter Paul
(Court of the Queen's Bench, Trial Division, New Brunswick).
Please note that this opinion was written prior to the decision of
the Supreme Court of Canada in Delgamuukw.
Council of the Haida Nation v. Minister of Forests:
British Columbia Court of Appeal, 1997
This case was a unanimous decision heard before a panel
of three Court of Appeal judges. The case was brought forward
jointly by both parties seeking an interpretation of section 28 of
the Forest Act, R.S.B.C. 1979 c.140.
In 1961 MacMillan Bloedel was given a tree farm
license ( " T . F . L . " ) for 25 years on Haida Gwaii. Subsequently,
the T.F.L. was renewed in 1981 and 1995 pursuant to section
28 of the Forest Act which reads, in part:
A tree farm licence entered into under this Act shall
... (b) subject to sections 27, 27.1, 33 and 33.1,
describe a tree farm licence area composed of (I) an
areas of Crown land, the timber on which is not
otherwise encumbered, determined by the minister.
The Haida brought an application for judicial review of
the two extensions of the tree farm licences, as follows:
...whether the interest claimed by the Petitioners,
namely aboriginal title, including ownership, title and
other aboriginal rights over all of Haida Gwaii (the
Queen Charlotte Islands), including the land, water,
flora and fauna and resources thereof, is capable of
constituting an encumbrance within the meaning of
section 28 of the Forest Act.(p.2)
The question at trial was not whether or not aboriginal
title and rights to the lands and trees exist; But rather, i f they do
exist, do they create an encumbrance within the meaning of s.28
of the Forest Act.
The decision turned on the judicial interpretation of the
word "encumbrance". T h e C r o w n argued that the word
"encumbrance" should not be given its "ordinary and plain"
definition, and thus aboriginal title should not be taken into
consideration in an interpretation of section 28. The Crown
argued that a proper interpretation of s. 28 should consider the
"context" in which the legislature passed the Act, in particular
the fact that aboriginal title was clearly not considered and the
fact that the Act was meant specifically to legislate the
allocation of forest resources, not to contemplate aboriginal tide
or rights.
FORESTRY CASES (Continued on page 7)

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DECEMBER 1997

UBCIC NEWS
FORESTRY CASES (Continuedfrompage 6)
Queen v. Paul
Court of the Queen's Bench, Trial Division (New Brunswick)
This case involved the arrest of Mr. Paul, a M i c Mac,
It is therefore likely that those who...voted for the
pursuant to section 67 of the Crown Lands and Forests Act.
[Forest Act]...had they considered at all the question
Paul had entered onto Crown lands, licenced to a timber
whether timber could be ' 'otherwise encumbered" by
company for harvesting purposes, and cut down three bird's eye
aboriginal title, would have said no - because no such
maple trees. He cut down the trees for sale, as they were worth
interest could exist. On the other had, had they been
between one and three thousand dollars. Paul argued that,
properly advised of the law... they would have
based on the rights encompassed within the Dummer's Treaty,
understood that there was a live issue as to whether
he was not acting "unlawfully".
aboriginal title still existed and would have understood
At trial, Paul was acquitted on the basis that the right to
that, if it did, it was capable of encumbering standing
cut and sell trees was covered in the trade provisions of the
timber on Crown lands. So, while it is reasonable to
Dummer's Treaty. Justice Turnbull disagreed with the lower
assume that the legislature had no positive intention to
court and found that the right to harvest trees commercially was
include aboriginal rights in ' 'otherwise encumbered'',
not contemplated in the trade provisions of the Dummer's
I see no basis for concluding that there was a positive
Treaty, but was covered under other provisions of the treaty.
intention to exclude ^
Justice Turnbull finds that
such rights. Only if
the right to harvest trees
such an intention
Haida: Crown lands are subject to a burden
(commercially)
could be established
... was not thought of by
or encumberance in the form of Aboriginal
could the subjective
anyone involved. ...The
intention of the
treaty did not touch or
legislators lend any
intend to govern all aspects
support to the case for the respondents, (at 22)
of social intercourse. I am of the opinion that
Dummer's Treaty does allow the present day Indians
While acknowledging that the "existing state of
to cut trees on Crown land as of treaty right but does
uncertainty" regarding aboriginal tide is problematic, the court
not on the reasoning of the trial Judge concerning
stated that "It is not for us to say what might be done to
trade. I believe they have the right on the far
alleviate that problem.": The fact that subsisting aboriginal
larger question concerning Indians' rights in
title is difficult to deal with does not, in any way, negate the
Crown lands and appurtenances which were
necessity of doing so.
recognized and agreed to as set out in the Dummer's
Aboriginal tide, where it is established, includes a right
Treaty, (at 3)
or interest to the forests upon the land.
It could be argued that this decision provides a strong
The court stated that " i t has long been recognized that
basis to support the access of Indians to timber on Crown lands.
aboriginal title to land can include an interest in die standing
While the judgment focuses at length in the results of the
timber" and that " i n die absence of a treaty, the rights to the
interpretation of the Dummers Treaty the court does not argue
timber created an encumbrance on the Crown title." Further,
that the right came into being by way of the Treaty. It would
the court accepted the Haida Nation's contention (argued in an
therefore be open for an aboriginal claimant to argue that their
earlier case) that
aboriginal rights (where not recognized in a treaty) carry the
same interest in Crown lands.
...the disputed Meares Island lands, not being Indian
reserves or land reserved for Indians, are to be
/ am of the opinion that the Indians of New Brunswick
regarded as provincial Crown lands subject to a burden
do have land rights and that such are treaty rights. I
or encumbrance in the form of Aboriginal tide, if it
believe it is like a usafructory right. It does not matter
exists, (at 4)
what such rights are called. It is not a right restricted
to personal use, but a full blown right of beneficial
ownership and possession in keeping with the concept
Conclusion:
of this is our land - that is your land. As stated by the
Ultimately, the T.F.L. in this case was not canceled, as
Supreme
Court of Canada the treaties are sui generis
this was not the remedy sought by the Haida. The only question
and
rights
thereunder must be given sui generis
before the court was the rather narrow one of the interpretation
accord,
(at
56)
of the word encumbrance as it exists in section 28.
Justice Esson found that

This decision reiterates the fact that where aboriginal
title or rights to land/forest resources can be established,
they constitute an encumbrance which the Crown is bound
by, and must address seriously.

The MicMac treaty preserved a general interest in Crown
land, this general interest in Crown land includes an interest in
the forests upon the land. Because the decision does not hold

FORESTRY CASES (Continued on page 8)

DECEMBER 1997

7

UBCIC NEWS
FORESTRY CASES (Continued from page 7)
that the treaty was the source of the interest (merely the
recognition of that interest) it could be argued that an aboriginal
interest in the land carries with it a corresponding interest and
entitlement to the forests (here used in a commercial manner).

die Minister of Forest not to halt development. (In particular,
the government policy of not halting resource development
during consideration of a Treaty Entitlement Claim).

Bias
Metecheah and Halfway R i v e r F i r s t Nation v. M i n i s t r y
After finding that no "actual bias" existed in Dawson's
decision,
the court went on to consider whether or not there was
of Forests and C a n a d i a n Forest Products L t d .
a
"reasonable
apprehension of bias". Given the nature of
B.C.S.C. (1997)
the
decision
to
be
made, the court found that there was a high
Halfway River First Nation brought an action seeking
duty
or
obligation
on Dawson's behalf to act fairly.
judicial review of a decision made by a Ministry of Forests
District Manager (Lawson) approving an application by Canfor
The duty to act fairly includes the perception of the
for cutting permit 212 (CP212). CP212 fell within the bounds
parties
as to fairness issues. If a party reasonably
of an area called Tusdzuh by the Halfway River First Nation.
believes that the MOF was acting
Tusdzuh was adjacent to the
unfairly, this will make the process
reserve and important for
/ believe there are several ways one could
unfair.
hunting, gathering plants and
describe the status of rights in Crown land. A
spiritual purposes. Overall,
legally correct way would be to consider
Tusduzh was integral both to
A statement by Dawson that
Crown lands as reserved for Indians. Not
Halfway's physical sustenance
the approval to CP212 would be
exclusively, but their rights to them are
and to the maintenance of their
given provided that it abides by
protected by treaty. The trees on Crown land
traditional culture.
Ministry regulations and the Forest
are Indian trees. Not exclusively, but their
Practices code " s t r o n g l y
Halfway, who fall within
rights are protected by treaty. The Crown has
suggest [ed] that Lawson had
the boundary of Treaty 8, had
jurisdiction and dominion over al land.
already concluded that there was
filed a Treaty Land Entitlement
no infringement of Treaty of
claim in 1995 which included
Aboriginal R i g h t s . " Thus,
Tusdzuh.
Halfway had a reasonable apprehension of bias in that Lawson
Halfway challenged the approval of CP212 on
appears to have decided the matter prior to them being given an
Administrative law and Aboriginal/Treaty Rights.
opportunity to participate.
1.

Administrative Law:

Fettering o f Discretion o f a Decision Maker
Fettering of discretion. A quasi-judicial body, embued
with the power under statute to make certain decisions, can be
said to have fettered its discretion if they are given a range of
options to consider under their enabling statute, and fail to
consider these fully, " l i m i t s " or "fetters" their discretion.
The decision lists several ways in which a decision maker can
fetter their own discretion:
1.
Where a decision maker makes a decision with reference
to the policy of any other government body.
2.
Where a decision maker simply complies with the
direction of a superior without making his or her own decision
on the merits.
On the record, the court found that Dawson fettered his
discretion "by treating the government policy of not halting
development as a given and by simply following the direction of

Error of Fact
Halfway challenged Lawson's decision on the basis that
it was based upon an error of fact, and is patently unreasonably
in that he did not consider enough evidence to support his
finding that the interests of Halfway would not be infringed.
....There was some evidence supporting his findings,
however, Lawson had no information from Halfway.
How can one reach any reasonable conclusion as to
the impact on Halfway's rights without obtaining
information from Halfway on their uses of the area in
question? (at 25)
Duty of Fairness and the Right to be Heard:
This decision strengthens the duty on the part of the
Crown to consult with aboriginal peoples prior to engaging in
activities which may impact upon aboriginal rights.
FORESTRY CASES (Continued on page 9)

Crown Trees are Indian Trees
8

DECEMBER 1997

UBCIC NEWS
FORESTRY CASES (Continued from page 8)
Fairness here includes "an obligation on the District
Manager to make all reasonable efforts and provide every
opportunity for Halfway to be heard. Consultation must be
meaningful and the district manager must take into serious
consideration the information provided by Halfway and
Halfway's rights in general."
A b o r i g i n a l and T r e a t y Rights/ Native L a w Issues:
After deciding that Halfway was successful on
administrative grounds, the court conducted an analysis of
whether or not Hallway's aboriginal or treaty rights had been
infringed. The court questioned whether die need to "be
sensitive to the aboriginal perspective on the meaning of the
rights at stake"
A letter from Halfway to the Ministry of Forests set their

...the Crown has an obligation to undertake
reasonable consultation with a First Nation
which may be affected by its decision, In order
for the Crown to consult reasonably, it must
fully inform itself of the practices and of the
views of the Nation affected. In so doing, it
must ensure that the group affected is provided
with full information with respect to the
proposed legislation or decision and its
potential impact on aboriginal rights, (at 50)

perspective out as follows "the full nature and extent of the
impact on treaty rights resulting from any one cut block can not
be assessed without examining the full context of cumulative
impacts on the whole area..."
Having regard to the aboriginal perspective, it is not
sufficient that there are other wilderness areas whether Halfway
can hunt, because this would ignore the aboriginal perspective
as to the importance of Tusdzuh.
The decision focuses on the need of the M O F to consult
as part of the test for determining whether an infringement of
aboriginal rights is justified.
Conclusion
The M O F owes a fiduciary duty to Halfway. As part of
this duty, the M O F must consult with the Band prior to making
decisions which may affect treaty or aboriginal rights. The
M O F failed to make all reasonable efforts to consult with
Halfway, and in particular failed to fully inform itself respecting
aboriginal and treaty rights in the Tusdzuh region and the
impact the approval of CP212 would have on these rights.
The M O F has failed to justify this infringement under
the second stage of the Sparrow test. Of particular significance
is the fact that the M O F did not adequately or meaningfully
consult, and therefore the decision was not based on a true
accommodation or consideration of Halfway's aboriginal
interests The lack of consultation means that the infringement
of Hallway's interests could not be justified.

DECEMBER 1997

Letter to Prime Minister Jean Chretien
December 29, 1997
Dear Prime Minister,
Your government is currently determining its' response to
the final report and recommendations of the Royal Commission on
Aboriginal Peoples. We have reviewed the pre-release version of
the federal draft, "Proposals for National First Nations Agenda,"
which outlines a framework for discussion and an action plan to be
developed in partnership with Aboriginal Nations.
The Union of B.C. Indian Chiefs is encouraged that a
response to this critical document is forthcoming. However, the
draft response does not commit the federal government to making
the substantive policy changes related to land and resource use that
were recommended in RCAP. In light of the recent Delgamuukw
decision in the Supreme Court of Canada, we think it is incumbent
upon the federal government to do so.
In Delgamuukw, the Supreme Court has recognized
Aboriginal title as "a right to the land itself." Aboriginal title in
British Columbia has not been extinguished by provincial land
legislation. The Court ruled that under Canada's s.91 (24), the
federal government has a fiduciary responsibility to "safeguard one
of the most central of native interests - their interest in their lands,"
both on and off reserve, from provincial interference.
The Supreme Court also confirmed that "lands held
pursuant to aboriginal title have an inescapable economic component," which includes both traditional and non-traditional resource
use and development. The decisive voice of Aboriginal Nations
will now have to be given more than simple consultative consideration in resource use and management decisions that effect our
title.
Our member Nations do not support the current B.C. Treaty
Commission which requires us to extinguish our tide in return for
treaty settlement lands. Delgamuukw makes it clear that negotiations involving land and resource use and allocation can take place
outside the BCTC and Comprehensive Claims processes. The
Supreme Court has provided a firm legal foundation for a thorough
review and change of all federal and provincial legislation and
policy that requires us to extinguish our Aboriginal title.
The Union of B.C. Indian Chiefs recommends strongly that
the federal response to RCAP be reassessed to take into account
the Delgamuukw decision. We urge your government to negotiate
with Indian governments in good faith to implement this important
historic Supreme Court decision. We look forward to further
discussion on this matter.
Sincerely,
Saul Terry,
President, Union of B.C. Indian Chiefs
cc:

Premier Glen Clark
Hon. Jane Stewart, DIAND
Hon. John Cashore, B.C. Ministry of Aboriginal Affairs
Assembly of First Nations
UBCIC Chiefs Council

9

UBCIC NEWS

U n c o n t a c t e d Indian in Brazil face r e n e w e d attacks

T

URGENT ACTION BULLETIN OF SURVIVAL INTERNATIONAL

he Javari Valley is one of the largest indigenous areas in Brazil and lies on the border with Peru. It is over eight million
hectares. Six indigenous peoples live here: the Marubo, Matis, Matses, Kanamari, Kulina and recently contacted Korubo.
There are also at least eight groups of uncontacted Indians, forming the largest concentration of uncontacted people in the
Amazon. The total population is about 4,000.

The Indians land is under intense pressure from
politicians closely linked to the powerful logging industry and
cocaine cartels. The nearby towns of Atalaia do Norte and
Benjamin Constant are major centres for timber companies and
drug traffickers who operate illegally. Experts estimate that
90% of the hardwood logged locally comes from the Javari
Valley. In May 1996, I B A M A (the government environment
institute) confiscated 21,000 cubic meters
of hardwood from the Javari. However
nobody has been convicted of theft and all
the wood has been stolen back by the
loggers. Drug traffickers have cut
airstrips deep in the Javari Valley in order
to smuggle cocaine into B r a z i l . Local
people also regularly invade the areas to
hunt and fish. The old company Petrobras
intends to renew seismic testing in an area
where at least three uncontacted peoples
live. Petrobras withdrew from here in
1984 after the uncontacted Flexeiros
attacked its camp.
A l l the Javari peoples hunt and
gather, and cultivate manioc, plantains
and corn. Most Marubo have had decades
of contact. Some worked as forced labour
extracting rubber during the boom at the turn of the century.
The Matis, however, were contacted by F U N A I (the
government's Indian affairs agency) around 1976. Over half
the population died from disease within a few years. Only now
are they recovering from this tragedy. Their population has
now stabilised and they are reviving many customs.
As loggers penetrate deeper into the Javari, there is
growing concern for the future of the uncontacted peoples, who
are most vulnerable to disease and violence from outsiders. For
this reason, in October 1996, F U N A I made the first sustained
contact with a small group of 24 Korubo Indians. It set up a
surveillance post at the mouth of the Itui river which marks the
entrance to the Korubo's territory. Since the post was
established F U N A I has managed to deter all intruders.
Sectors of the government and the military which are
anti-Indian, and which want to exert more control in the area,
are attempting to close the F U N A I post. In August 1997, the
Korubo killed a F U N A I employee. This incident is being used
by the authorities as an excuse to close the post. If this happens
there will be nothing to stop people from invading the Korubo's
territory. The Indians' organisation C I V A J A (Javari Valley
Indigenous Council) demands that the F U N A I surveillance post
remains. They say, " I f the F U N A I post disappears, it will be
we the Indians who suffer."
The majority of about 300 Korubo remain uncontacted.
For decades they have shunned all contact with white people,
although there have been many sporadic conflicts resulting in
killings on both sides. Local opinion is extremely hostile to
them. The Korubo are known as 'caceteiros' or 'head
smashers'. "Hunting parties have been organised to track
down and kill them. Recently, loggers have been overheard
talking of dynamiting Korubo villages. Indians working for
CIVAJA, have received death threats and threats to set fire to
their office in Atalaia do Norte. Local politicians have
organised demonstrations against the Indians and the mayor of
Atalaia has declared: "The Javari Valley belongs to us and we

10

will not permit it to be demarcated.''
The Javari Valley was designated as an indigenous area
in 1985. European funds have been earmarked to demarcate it
as a priority area. Yet even though the funding is available, the
Brazilian government has shown no signs of carrying out the
demarcation. A campaign urging the Brazilian government to
demarcate and protect the Javari Valley is crucial as pressure on
the Indians and their land intensifies. If
the area is not adequately safeguarded the
future of some of Brazil's most isolated
and vulnerable indigenous peoples looks
grim.
ACTION
Please write courteous letters to:
(Begin: Your Excellency) Exmo Sr. F.H.
Cardoso Presidente da Republica Palacio
do Planalto 70150-900, Brasilia DF, Brazil
Fax:+55 61 226 7566
Exmo Sr Iris Rezende, Ministro da Justica,
Ministerio da Justica, Bloco T, Esplanada
dos Ministerios, 70064-900, Brasilia DF,
Brazil, Fax: +55 61 224 2448
M A K E T H EF O L L O W I N G POINTS:

If the isolated Indians of Javari are to survive, the area
must be demarcated. This fundamental right is guaranteed in
the Brazilian constitution and must be upheld. European
funding has been earmarked for demarcation of the Javari
Valley and must be spent.
The F U N A I surveillance post on the Itui river is
strategically important. If it is disbanded, the Korubo will be
exposed to renewed attacks and diseases from outsiders.
The government must implement a long-term
programme to protect the area from invasion, particularly
because the isolated Indians are extremely vulnerable.
Protection of indigenous areas is a main objective Cardoso's
national human rights programme and a constitutional
obligation.
P O W E R O F T H E PEN
Politicians often think that every letter they receive
represents the views of several hundred other people (as many
as 600 in some cases) who do not take the trouble to write.
By spending a few minutes writing to the address in this
article you will be taking really effective action to help the
Javari Valley Indians of Brazil.
Write in English or your own language. Be brief. It is
very important to be polite - however strongly you feel about this
issue.
Many Survival letter campaigns have succeeded in the
past. It really is worth it.

DECEMBER 1997

UBCIC NEWS

Union of B.C. Indian Chiefs
1998 Early Planner

O U R RESOURCES = O U R RIGHTS
The Union of B.C. Indian Chiefs is coming to a community near you.
Please plan to attend one of our community meetings on the following issues.
We want to hear your concerns and your ideas about how to address them.
Day one: Hunting and Fishing Fact Finding Mission
Day two: Forestry, Water Rights, Financial Transfer Agreements.
Dates:

January 22 & 23, 1998 - Campbell River, B.C.
February 2 & 3, 1998 - Kamloops, B.C.
February 5 & 6, 1998 - Williams Lake, B.C.
February 9 & 10, 1998 - Chehalis, B.C.

U B C I C to Co-Host
Indian Education Conference
Through our Children we call forth our future.
Self detrmination includes the right to educate our children.
The UBCIC attended an education meeting organized by the Adam's Lake Indian Band
on December 9, 1998. The meeting was attended by alot of caring & committed people and
we enjoyed the opportunity to meet with them. We decided that it was necessary to hold an
education conference this spring to address crucial issues facing our communities.
The UBCIC is planning an Education Conference hosted by the Neskonlith Indian
Band, Adams Lake Indian Band, and Little Shuswap Indian Band for March or early April,
1998.
The conference will focus on Local Education Agreements, Band Operated Schools,
Special Needs Education, Post-Secondary and more.
If you would like to become involved to offer your own perspective,
please contact Ardith or Halie at our Vancouver office at (604) 684-0231.

DECEMBER

1997

11

UBCIC NEWS

Secwepemc Land
Title Confirmed by
Top Court
December
16, 1997 - Kamloops, B.C. - The Shuswap
Nation Tribal Council of Chiefs are celebrating the
unanimous decision of the Supreme Court of Canada handed
down last Thursday, in the case of Delgamuukw v. British
Columbia. The decision, for the first time provides a clear and
authoritative statement of the law respecting aboriginal title in
this province. "The provincial government's contention that
our Secwepemc tide had been extinguished by provincial land
legislation was completely rejected," stated Chief Arthur
Manuel, Chairman of the SNTC. The Supreme Court of
Canada confirmed that aboriginal title is a constitutionally
protected proprietary interest in land, or as stated by Chief
Justice Lamer: " a right to the land itself." The Chief Justice
also confirmed, "that lands held pursuant to aboriginal title
have an inescapable economic component."
Chief Manuel said, " T h i s judgment is of vital
importance for the future of the people of our communities, who
have become impoverished as a result of the past denial of our
rights by the provincial government, and by the failure of the
federal government to protect our interests in our lands,
including our economic interests in the resources. It is now
very clear that our peoples have rights protected by law to use
our traditional territories for economic purposes, in addition to
our hunting, fishing and gathering rights."
The Delgamuukw decision sets out the legal foundation
for the substantial and meaningful participation of First Nations
people in the management and exploitation of resources in the
province. "This will give our Nations a stronger voice with
regard to resource development - the issuance of tenures,
licenses, grants, or any economic development that my affect
our title." said Chief Manuel. " W e fully expect that the
provincial government, and all those others who have so loudly
denied the existence of our rights, will respect and comply with
the law. as set forth in this judgment," he said. " O u r
communities, governments and institutions will be gearing up
to take appropriate action to pursue our rights and interests to
the fullest extent of the law."
Contact: Chief Arthur Manuel (250) 828-9789 or (250) 6793295

Shuswap Nation Fisheries
Commission Calls for Management
Plan for Beleaguered Thompson
Steelhead

" I f the fisheries management agencies are serious
about protecting Thompson River steelhead
as well as the related cultural and economic
interests of the region, then they will
work with others in the creation of such a
management plan... no such plan exists at
this t i m e , " says F r e d Fortier,
Chairman of the Shuswap Nation Fisheries Commission. Fred
was contacted in Madrid where he is attending a United Nations
workshop on the Convention of Biological Diversity and will
address aquatic issues.
The Shuswap Chiefs are disappointed in the recent
decision by the Minister of Environment to keep the Thompson
River open to catch and release recreational fishing of the
beleaguered Thompson Steelhead, despite warnings by their
own biologists about conservation concerns.
Fortier went on to say that, " W e believe that the decision
is not consistent with the precautionary management approach
we have come to expect from this province.'' The Shuswap
Bands are concerned about the status of the region steelhead
and the way in which this decision may infringe upon local
aboriginal fishing rights. Area Indian Bands have largely
abstained from harvesting steelhead for food, social and
ceremonial purposes over the last decade because of
diminishing numbers of spawning fish in the Deadman River in
particular.
Dave Moore, Director of the Commission, stated
" W e are looking for a review of the advisory process,
development of a scientifically defensible Thompson River
steelhead assessment of the watershed, and the impact of
fisheries downstream and in the ocean." The Commission is
clear that the problem is complex and the causes of the declines
in local steelhead are not the faults of over-fishing by sport or
aboriginal fisheries in the Fraser, but unless these fisheries are
part of the solution, they will become a part of the problem.
The decision according to Fortier is "contrary to the
Supreme Court priorities established in 1990." This is the
landmark Sparrow decision in 1990 which established that
aboriginal fishing rights in Canada are the first allocation
priority after conservation concerns are met. Fortier went on to
state that "There has been no consultation by the province or
the federal governments with area bands about the needs for
local aboriginal fishing. There is however, an initiative brought
forward by area bands to work together on the creation of a
management plan. For further information:
Dave Moore, Commission Director (250) 828-9837
Mike Galesloot, Tribal Fisheries Biologist (250) 828-9836

12

DECEMBER 1997

UBCIC NEWS

SPECIFIC C L A I M S R E F O R M
UPDATE

NEED ADVICE? - WRITE
Mr. Wonderful

NATIONAL CLAIMS CONFERENCE
QUEBEC CITY
NOVEMBER 1997
Despite the short notice, there was a good turnout of
Chiefs from across the country (and British Columbia) at the
Assembly of First Nations National Claims conference in
Quebec City on November 5th and 6th. The conference was an
opportunity for the A F N ' s Chiefs Committee on Claims to bring
people up to date on the latest details of the proposal they have
been working on to reform the existing specific claims process
(the "working draft"). More importantly, it was also a chance
for the Chiefs Committee on Claims to obtain critical feedback and hear regional concerns - about the proposed changes to the
specific claims policy and process.
The conference followed on the heels of a number of
information meetings held throughout B C (and elsewhere in the
country) in October. The views expressed during those regional
meetings were represented at the National Claims Conference.
The different regions of the country echoed the same concerns
about the working draft. Everyone acknowledged there were
still many details to be worked out, but the consensus appeared
to be that this proposed overhaul of the current process
represents a significant improvement, and that First Nations
should move ahead with it and continue working to the 1998
transition deadline.
As a result of the National Claims Conference last
month, the A F N ' s Chiefs Committee on Claims now has a
detailed priority list of specific, as well as logistical, issues that
must be dealt with. The Chiefs Committee on Claims is now
focussing on addressing these outstanding matters, and is
beginning to lay the groundwork for a submission to cabinet
(necessary because the new independent claims body is to have
a legislated authority) and public education campaigns.
The U B C I C has been involved in the effort to overhaul
the specific claims process. The UBCIC has been represented on
the Chiefs Committee on Claims by Neskonlith Chief and
Shuswap Nation Tribal Council Chair Arthur Manuel and
Wayne Haimila of the SNTC as well as Leigh Ogston from the
UBCIC Specific Claims Research Department. If you would like
more information about this claims reform effort, please feel
free to contact them. The U B C I C is prepared to hold further
information meetings, as required, to advise B C Bands about
any further developments in this area.

DECEMBER 1997

5th Floor - 342 Water St.
Vancouver, B.C.
V6B 1B6

U n i o n of B . C . Indian
Chiefs Statement on APEC
V A N C O U V E R , B.C. (November 21, 1997) - The
Union of B.C. Indian Chiefs is here at the Peoples Summit
Against A . P . E . C . as a symbol, as reminder to the
C a n a d i a n Governments that there remains much unfinished
business with Indigenous Peoples in Canada.
We are humiliated that we cannot, as the original
Peoples of this land, play a role as proper hosts to our brothers
and sisters from around the world. A situation which
demonstrates that we have not yet emerged out of the repressive
colonial role that has brought us to such a sorry socio-economic
state.
Eighteen leaders and their entourage are discussing
ways and means of greater trade liberalization which also
includes Canada, without first addressing to a just conclusion,
the land question, especially here in British Columbia.
Some years ago former Premier Harcourt was lamenting
the fact that investment in British Columbia was being deterred
by 1 Billion dollars per annum because the uncertainty caused
by the unresolved land question. Let it be very clear that
nothing has changed since that statement was made by Premier
Harcourt. Investors should understand that the lands in British
Columbia remain as unceded lands of Indigenous Nations.
Where nation to nation treaties exist in British
Columbia they remain unrecognized hence unimplemented to
this day. This places great uncertainty over those lands and
resources falling into those treaty areas.
Over the years successive governments in Canada have
tried to deny the legitimacy of our Peoples, our territories
(homelands), our governing systems, our economies, our social
history; all to no avail.
We have survived! We exist and no amount of
manipulation of history shall change that fact.
The avoidance of dealing with our Peoples, on our terms
must cease. Treaty and non-treaty Indigenous Nations shall not
surrender, cede our Aboriginal Title for an economic
development agreement which deprives our future generations
benefits from their sacred homelands.
We give notice to A P E C state leaders and their political
coporate elite that investment, especially in British Columbia,
remains very uncertain.

13

UBCIC NEWS

TSILHQOT'IN
NATIONAL GOVERNMENT
Re-burial of Tsilhqot'in human remains and reclamation of
gravel mining site at Sheep Creek in the Chilcotin on
Wednesday, November 12, 1997.
The Tsilhqot'in Nation will re-bury ancestral remains
unearthed by a gravel mining operation on 'private' ranch land
in September of 1996 and totally reclaim the gravel mining site
on Wednesday, November 12, 1997.
The authorization for the decision to get on with a
dignified re-burial of the venerated Tsilhqot'in ancestors was
reached at a Tsilhqot'in National Government [TNG] Council
of Chiefs meeting held at the Xeni Gwet'in First Nations
community office on November 5. That decision followed firm
direction from Tsilhqot'in Elders to bring the on-going delays
to a firm resolution before the snow flies this fall.
The long delay in retrieving the Tsilhqot'in ancestral
remains was mainly the result of jurisdictional traps built into
the B.C. Treaty Commission process that obligates the
provincial government to get full agreement from all First
Nations expressing an interest in areas claimed by their B C T C
traditional territory boundary lines.
The Sheep Creek area is claimed by the Northern
Shuswap Bands of Alkali Lake and Sugar Cane, but the T N G
has made it clear to their neighboring Native Nations that the
west side of the Fraser River is undisputed Tsilhqot'in
traditional territory that has historically been occupied and
defended by the Tsilhqot'in people.
The appropriate government agencies have been notified
of the Tsilhqot'in Nation decision to conduct the re-burial and
reclaim the site which has been declared and sanctified as a
Tsilhqot'in Sacred Burial Site. Notification has been sent to
Cariboo South [and hopefully Chilcotin] M L A David Zirnhelt,
Aboriginal Affairs Minister John Cashore and the Provincial
Archaeology Branch to get the necessary and permitting in
place the have the human remains and 'cultural remains' now
held in the morgue at Cariboo Memorial Hospital in Williams
Lake turned over to tire T N G Council and Chiefs at 10:00 a.m.
on November 12.
The T N G has gone through the necessary consultation
with B.C. government to resolve all related issues and fully
expects full cooperation from government agencies in making
the reburial ceremony and work project to secure the site
conducted peacefully and with dignity.
T N G Tribal Chairman Ervin Charleyboy made this
clear.
'' We expect the provincial government to respect our
jurisdiction over our burial sites. We finally got fed up with
them sending us messenger boys and now have a firm
commitment from Christie Brown, the Assistant Deputy
Minister of Aboriginal Affairs, to clear up the red tape holding
back the turnover of our forefather's remains to us so we can get
them back to their proper resting place," he said.
The indignity of this unearthing of our ancestral remains
has outraged T N G Deputy National Chief Ray Hance.
'' We feel as strongly about this desecration of our
ancestors as the people of Williams Lake would be if we took
bull dozers into the cemetery and tore it up. We've had enough,
that whole land at the Sheep Creek burial site is Tsilhqot'in
territory and we back Neil McDonalds claim for compensation
from the B.C. government for loss of his ranch land. This sit is
now Tsilhqot'in and will not be further disturbed for any
commercial purpose.

14

Chief Hance also addressed the claim by United Concrete
and Gravel Ltd. that they want to remove their inventory of
gravel piles from the site before the reclamation work is done.
"That will not happen. Those rock and gravel pile
contain bones of our ancestors and will not be used to pave
roads. On Wednesday they will be pushed back into the big pit
where they came from,'' he said.
The Tsilhqot'in re-burial ceremony and reclamation
work will be open to outside observer well-wishers to join
Tsilhqot'ins to pay their respects to these eight so-far-identified
people who were torn from their graves and placed i n a box in a
morgue away from Tsilhqot'in homeland.
Provincial government officials, outside First Nations,
land 'owner' Neil McDonald, and the media have been invited
to attend the re-burial ceremony and reclamation work project.
As Tl'etinqox Chief Leslie Stump put it:
"We want the whole world to know that Tsilhqot'ins
own our land and we don't give a damn about outsiders' laws
and rules telling us we don't control our sovereign territory."
-30Contact: Ervin Charleyboy (250) 481-1157

REQUEST FOR ACTION
P L E A S E WRITE T O S E N B E N NIGHTHORSE C A M P B E L L .
He has agreed to hold Congressional hearings into the events
that occurred at Pine Ridge SD between 1972-1975. This is the
first time the true story will be told in a government public
forum of the circumstances surrounding the act of self defense
on June 26. This is is the act resulting in the killing of the two
FBI agents for whose deaths Leonard was unjustly convicted.
We need to write letters of support for these hearing to:
Sen. Ben Nighthorse Campbell
Chair, Indian Affairs Committee
Hart Senate Bldg., SH#838
Washington, D C 20510
This is a chance that will not come again for a the real
story of Pine Ridge and the circumstances leading to the
firefight to be publicly known. Information denied to the
defense committee would be available to these investigators.
We know that many special interest groups will want to prevent
these hearings from occurring. These special interests want
these circumstances to remains hidden. But these hearings can
open the door to freedom for Leonard Peltier, and we must do
everything possible t o see that the hearings are held and that
this chance does not disappear through inaction!
Write to Sen. Ben Nighthorse Campbell i n support of
hearings into the events at Pine Ridge. We cannot lose this
chance for justice for Leonard.
F R E E L E O N A R D PELTIER:
Northwest Leonard Peltier Support Network
5201 Capital Blvd. Ste 119
Tumwater WA 98501
360-943-3274

DECEMBER 1997

UBCIC NEWS

SISKA BAND VOTES TO PRESERVE CULTURE,UNION OF B.C.INDIAN CHIEFS
AND PROTECT SISKA WATERSHED

29th Annual General Assembly

November 7, 1997
The Siska Indian Band's general band meeting for
November 1997 was attended by a record number of band
members. The Chief, Council and the Band Members
unanimously voted to continue to preserve and protect their
remaining tribal lands, the Siska Watershed, rather than enter
into a financial partnership with J.S. Jones Timber of Boston
Bar. Honour and tradition is preserved.
The 7,000 ha. Siska Watershed, located 200 kls
northeast of Vancouver, is die last pristine, intact watershed on
die northern flanks of the Cascade Mountains, and is the only
remaining old growth forest-lands in the band's traditional
territory.
Siska Band Chief Ms. A . Munro, Councillor Mr. M .
Michell, Band Manger Ms. P. Johns, Resource and Forestry
advisors Mr. C. Michell, and Mr. G. Pierre, along w i t h Mr. G.
Everett, recently toured the adjacent Mohowkan Watershed.
They expressed a strong concern over the number of wash-outs
and land slides that occurred along the main access roads and
stream bank. Ms. Munro stated that one of the Band's major
concern is the preservation of water quality and fish habitat.
The Council was impressed with the Chilliwack Forest
Districts slope stabilization program in the Mohowkan
Watershed. A Ministry of Forest's innovative Bio-Engineering
technique that utilized traditional knowledge to solve
contemporary problems. The Band members expressed a strong
interest in exploring that type of watershed restoration
techniques.
The Siska Band has been in contact with members of the
academic research community, and are planning to establish a
world class Biological Research Station in the valley.
They anticipate that, i n addition to the recently
discovered rare and endangered Tailed Frog, Mountain Beaver,
and the potential hybrid White-Spruce, that many other new
and unnamed or rare species will be discovered in the Siska
Watershed.
-30Contact: Ms. A Munro (250) 455-2219

October 23,1997, Fort Rupert, B . C . : The Union of B.C.
Indian Chiefs has always stood firm and fast on it' principles
and will never compromise Aboriginal Tide!" said U.B.C.I.C.
President Saul Terry at the 29th Annual General Assembly of
the Union at Fort Rupert. His opening remarks set the tone for
the three day assembly.
Saul Terry warned of the many government initiatives, such as
the B.C. Treaty Commission, underway that are all attempts to
separate Indigenous People from their lands and resources.
"We must always be wary of these different strategies
that all have the same agenda-to dis-inheret us and to
separate us from our homelands.!''
" A l l of these processes have the same intent which is
to take away our lands and our resources for ever.
Extinguishment is final, terminal and forever."
"Many of our people are living well on borrowed
money," Terry said in reference to the B C T C
requirement to borrow money before treaty
negotiations. ' ' Some of our leaders have the arrogance
to think they can negotiate their way around
extinguishment and genocide."
"Genocide is being perpetrated against Indian people.
Indigenous people cannot continue to exist i f the
processes of termination continue to be practiced and
applied to Indigenous people." He warned that
' 'Buying into the system of termination may become a
new reality.''
" I f this happens, then future generations or our people
will not benefit from our homelands. Governments are
denying Indigenous People their own truth and they
are trying to make us into their image."
Terry called for living treaties that will preserve Indigenous
homelands and sustain future generations: " W e need to do this
so that we can survive as a Peoples, so that we can survive as
Nations.''
"The reality is that we have been impacted by colonial
process, the reality is that we must find ways out of this
colonial processes, the reality is that we must find ways
out of this colonial rut. Indigenous Peoples need
economies to sustain their communities into the future.
Substantial and real solutions need to be sought out.''
"Some people say that we are taking too hard a line.
M y God, if our future is in jeopardy we must state that
and stop the dangers in the treaty process and other
government initiatives now offered by us," Saul Terry
concluded.
-30-

D ECEMBER 1997

15

UBCIC NEWS

=

NUXALK NATION GOVERNMENT

"First of all I would like to acknowledge
the Creator for this day.
Nuxalk reoccupies Scw7cwlk valley to
protect it from clearcut logging

My

English name is Jesse Oud,
my Nuxalk name is Sunscw. I
am a young Nuxalkmc who is dedicated
to keeping our culture and heritage
strong. As a Nuxalk sovereigntist I have
broken away from the governments
reserve boundaries and have re-occupied
a traditional village located in the
Scw7cwlk (Skowquiltz on a map) valley.
This is a village which once provided for
thousands of our people, and could
sustain all Nuxalkmc today. Since the
beginning of time, the Scw7cwlk has
provided an incredible abundance of
salmon (4 species), mountain goat,
moose, deer, wolves, black and grizzly
bear, eagles, ravens, as well as countless
other species of animals and birds; all of
which hold the identity of our people. It
is from all these we get our names,
songs, dances; and are provided with die
incredible gifts of food and medicine
from the Creator. Without these our
Nuxalkmc way of life would not exist.
I am writing to all who share the
same heart and dedication in preserving
this land from the destruction of
corporate clear-cut logging practices.
The Scw7cwlk valley, my home, where I
have constructed a traditional pithouse,
is the place I will remain throughout the
winter and continually hereafter. The
Scw7cwlk is slated to be roaded next
spring, 1998. These roads are preparing
access to 55 proposed clear-cuts. Permits
granted by the Ministry of Forests
allowing this destruction by logging
companies are illegal. We, as Nuxalkmc
people, have never ceded our territory,
never entered any co-management or
interim agreements, or signed any
treaties concerning our traditional
territories.

The Nuxalk Nation is the First
Nation in the Bella Coola area on the
mainland coast of B.C. I am asking First
Nations, Canadian and international
supporters to write to the Ministry of
Forests to stand strong in defense of
Nuxalk sovereignty and our Scw7cwlk
village
Statement from Hereditary Chief
Qwatsinas:
"The reoccupation, asserting and
reaffirming of Nuxalk sovereignty
protects the rainforest in the mid-coast of
British Columbia. Oilier methods stall
die clearcut destruction of the rainforests
but only temporarily. Reoccupation is a
long terms strategy which draws public
attention to the destruction of Nuxalk
lands. The reoccupation of Scw7cwlk by
Suncw (Jesse Oud) and Alecia (his
partner) is a courageous action that
demands respect and recognition from
all peoples. The "Land of the Nuxalk"
has been lost for a long time, but a
rebirth is happening: the Nuxalk are
returning home to their traditional lands.
You have our support"
Statement from Head Hereditary
Chief Nuximlayc:
The Nuxalkmc must recognize
and use their "Smayustas" (stories of
origin) again. Through our smayustas,
we must bring back our family chiefs and
names and claim our watersheds that
belong to them. We must recognize our
homelands where our names come from,

Aboriginal Youth Video
Promotes Healthy Lifestyle
Choices
November 6, 1997- Ottawa -Approximately 100 First Nations, Inuit,
and Metis youth from across the country
gathered in Ottawa at the Adawa Native
Friendship Centre today to attend Health
Canada's launch of Balance-Healing
Through Helping. The Honourable Ethel
Blondin-Andrew, Secretary of State,
Children and Youth, participated in the
event w h i c h also i n c l u d e d
representatives of a b o r i g i n a l
organizations, health organizations and
government who came to celebrate the
youth's achievements at this premier
screening. Developed by aboriginal
youth for aboriginal youth, the video is
expected to reach more than one million
aboriginal people in Canada.
"Aboriginal youth from across
the country have volunteered hundreds of
their hours of their time and candidly
shared their personal experiences and
insights to create this unique video,"
said Secretary of State Ethel BlondinAndrew. "They have focused on
positive messages which portray healthy
lifestyle choices-their accomplishments
are truly commendable.''
More than 50 First Nations, Inuit
and Metis youth participated in the
writing, acting and production of the
video. Based on the traditional values of
aboriginal peoples, it is an upbeat look
into the lives of aboriginal youth with
discussions on a range of key issues such
as peer pressure, family values, physical
activity, goals and personal health.
The 45 minute video was
developed within Health Canada's
Aboriginal Wellness Campaign, a multiyear strategy that promotes healthy
living through culturally sensitive
vehicles. The Department provided
approximately $100,000 to support this
initiative. Copies of the video may be
obtained from Publications, Health
Canada, Brooke Claxton Building,
Address Locator 0913A, Ottawa,
Ontario, K 1 A 0K9, Tel (613) 954-5995,
fax (613) 941-5366

N U X A L K (Continued on page 17)

16

DECEMBER 1997

UBCIC NEWS
N U X A L K (Continued from page 16)

and our history originates. When these watersheds are
destroyed, our family heritage, arid our way of life is destroyed
also. I say thanks to Suncw and Alecia for taking that step to
protect the Scw7cwlk. Nuxalk life and heritage is a treasure to
the world.
We ask all First Nations, and all other supporters to
write to the authorities to stop the proposed destruction of
the Scw7cwlk which is a unique place of beauty in this world.
We ask you to stand strong with us in defense of the ScwJcwlk
and Nuxalk Sovereignty.''
-30Contact: Melvina Mack (250) 982-2152, Bella Coola, B.C.

U B C I C M o u r n s Passing of Longtime
I

CHIEFS COMMITTEE ON CLAIMS
MEETING
WITH MINISTER STEWART
INAC Minister Jane Stewart reaffirmed her
commitment to move forward with the joint A F N /
INAC specific claims reform initiative at a meeting
with the Chiefs Committee on Claims in early
December. The Minister expressed pleasure at the
progress that has been made to date, and the meeting
was regarded by committee members as successful
and positive. It is expected that the Minister will sign a
protocol affirming her commitment to the specific
claims reform process.

Employee Christine C l a r k

The Union of B.C. Indian Chiefs Executive,
Members and Staff is deeply saddened to announce
the sudden passing of longtime U B C I C employee
Christine Clark on November 6, 1997 at St. Paul's
Hospital, Vancouver, B.C. due to cancer.
Christine worked for the Union of B.C.
Indian Chiefs for sixteen years. Many of you may
remember Chris at various U B C I C Annual
Assemblies, meetings and through her work at
Mandell, Pinder. Her commitment to Indian
Government, dedication to the recognition of our
Aboriginal Title & Rights, and wonderful sense of
humour will be greatly missed by us all.
Chris is survived by her four children,
Patricia [16], Tamara [12], Melanie [10], and Fred
[9], as well as her mother, sisters, brothers and
numerous friends.
A celebration of Chris' life and memorial
service was held Sunday, November 9, 1997 at the
Longhouse Church in Vancouver. Funeral Services
were held in Bella Bella the following week.
Condolences and contributions in lieu of
flowers can be sent to the family addressed to
Arlene Brown, Chris' sister, in c/o Mandell, Pinder,
500 - 1080 Mainland Street, Vancouver, B.C. V6B
2T4 or in c/o of UBCIC at 500 - 342 Water Street,
Vancouver, B.C. V6B 1B6.

UNION OF B.C. INDIAN CHIEFS
JOINT POLICY COUNCIL

The Joint Policy Council's forestry workshop will
inform communities about current forest issues and
government policy. It will also provide communitybased input to guide negotiations at the Joint Policy
Council forestry table. The workshop will give community
members and UBCIC staff an opportunity to discuss
policy related to such things as access to timber, Traditional
Use and archaelogical studies, the consultation process,
the Jobs/Timber Accord, and economic development.
The Forestry Workshop is available to communities
and/or Tribal Councils upon request. There is no charge
for the workshop, but staff travel expenses must be
covered by the Band or Tribal Council. For more
information please call:
Paulette Regan, UBCIC Joint Policy Council Coordinator
Phone: (604) 684-0231 Fax: (604) 684-5726

Mandell, Pinder is also establishing a trust
fund for Chris' children. Anyone wishing to
contribute to this fund can contact Louise Mandell,
Leslie Pinder, Clo Ostrove or Brenda Gaertner in
Vancouver at Telephone: (604) 681-4146.

DECEMBER

1997

17

UBCIC NEWS
Environmental Assessment
RESOURCE CENTRE UPDATE
www.eao.gov.bc.ca
Fourth World Documentation
Project
www.halycon.com/FWDP/fwdp
For those who have access to the Internet, we
thought we would share some of the Website
addresses that we use and have discovered that
might be of interest:
B.C. Provincial Archives
www.bcars.gs.gov.bc.ca
B.C. Government Directory
www.dir.gov.bc.ca

Liberal Party of Canada
www.liberal.ca
Hope that everyone has
a safe and happy holiday
and that good things
come your way in the
New Year.
Wendy & Lorraine

Hudson's Bay Archives
www.gov.mb.ca/chc/archives/index
Department of Indian Affairs
www.inac.gc.ca
Institute of Indigenous
documents here)
www.indigenous.bc.ca

Government

(RCAP

B.C. Ministry of A b o r i g i n a l Affairs.
negotiation
www. aaf. gov. be. ca/aaf/negotiat/heads

Treaty

Assembly of First Nations
www.afn.ca

18

HAVE A SAFE AND HAPPY
HOLIDAY FROM THE
STAFF Of THE UNION OF
B.C. INDIAN CHIEFS

DECEMBER 1997

UBCIC NEWS

MAP OF THE SOVEREIGN INDIGENOUS NATIONS
TERRITORIAL BOUNDARIES: JUNE, 1993
The Union of B . C . Indian Chiefs' map of the Sovereign Indigenous Nations Territorial Boundaries is the only contemporary
map that accurately shows the traditional tribal territories of the 23 Indian Nations in British Columbia. The six colour map measures
28" x 36".
The tribal territories are the homelands of distinct Nations, within which their respective peoples share a common language,
culture and traditional forms of political and social organization. These homelands have been occupied by the Indian Nations since
time immemorial. Up to the present, the Indian Nations in British Columbia have never surrendered their ownership oftheir homelands
(aboriginal title), nor have they surrendered their original sovereignty as nations to govern their homelands (inherent jurisdiction).
Information on the territorial boundaries was compiled by the Union's research portfolio and President's office between July,
1990 and April, 1993 from archival research and information provided by elders, chiefs, and tribal councils. Chief Saul Terry, President
of the Union and a graduate of the Vancouver College of Art (now the Emily Carr College of Art and Design), prepared the working
drafts for the map.
Design and cartography for the June, 1993 map was done by David Sami, chief cartographer of Multi Mapping Ltd. in
Vancouver, B.C., using a 1:2,000,000 scale base-map from the Surveys and Environment Branch of the British Columbia Ministry
of Environment, Lands and Parks. A l l territorial boundaries shown on the map are subject to further revision, as additional information
becomes available. Contact the Union of B.C. Indian Chiefs at (604) 684-0231 for ordering information.
28" x 36" / Scale: 1:2 000 000 / Six Colours

DECEMBER 1997

19

UBCIC NEWS

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DECEMBER

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Union of B.C.
Indian Chiets

‘Our Land is Our Future"

NEWSLETTER









Supreme Court Confirms Existence of
Aboriginal Title in Delgamuukw

Province does not have the right to extinguish aboriginal fifle

7 he Supreme Court of
Canada recently released
its ruling in the historic
Delgamuukw case in which

manner in which the
questions on appeal were
framed.

While the Court

will enable both the federal
and provincial governments
to argue that the particular
use to which an Indian nation

















Gitksan and or
Wet’suwet’en ‘ . . I i
rere For the first time in Canadian history, as aed
Chiefs sought | the unanimous bench of the Supreme Court of |[piece of
ae a Canada affirmed the existence of aboriginal mori

: 4 . acted to
aboriginal title, as beyond mere rights to practice ei,
litle over particular activities, to ‘‘the right to the land |faboriginal
their . | title in that
traditional itself . land :
[errilorics. “The

For the first time in
Canadian history, the
unanimous bench of the
Supreme Court of Canada
affirmed the existence of
aboriginal title, as beyond
mere rights to practice
particular activities, to ‘‘the
right to the land itself”’.

The court did not
decide the actual issues
before it in terms of whether
or not the Gitksan and
Wet'suwet’en had aboriginal
title, under Canadian law, to
their traditional territories.
Rather, the case was sent
back down for a new trial, on
the technical issues of the
trial judge’s refusal to accept
oral histories as well as the

DECEMBER 1997

recognized the existence of
aboriginal title in the land,
and there are undeniably
positive aspects of this
decision, in recognizing
aboriginal title the court also
offered its opinion on how
that title should be defined,
determined, and ultimately
vacated.

The description of
aboriginal title is tied to the
Court’s understanding of
what it means to be
*‘Indian’’: Those uses of
land which do not conform to
the Court’s understanding of
an aboriginal usage will not
be considered to be vested
with aboriginal title.

The Court opened a
significant loophole which

content of aboriginal title
contains an inherent limit in
that lands so held cannot be
used in a manner that 1s
irreconcilable with the
nature of the claimants’
attachment to those lands.”’

In recognizing of
aboriginal title as a species of
aboriginal right recognized
and affirmed by section 35(1)
of the Constitution Act,
/982, the court used section
35(1) as a mechanism for
balancing aboriginal interests
in land (aboriginal title) with
the rights of the Canadian
crown. The Supreme Court
of Canada decision

DELGAMUUKW CASE
(Continued on page 4)





2. Message from the
President

3. Statement from the
Indigenous Peoples Cauc
(1997 APEC Peoples'
Caucus in Vancouver)

6. Forestry Cases

10. Uncontacted Indians in
Brazil face renewed
attacks

11. UBCIC 1998 Early
Planner

12. Shuswap Nations
Fisheries Commission

13. Specific Claims Reform
Update

14. Tsilhqot'in National
Government

15. UBCIC Press Release

16 Nuxalk Nation
Government

18. Resource Centre Update





UBCIC NEWS



‘YYjessage from
| the Jivesident
Dear People:

Once again it is the
season for good cheer and joy
in family gatherings. As an
Indian leader I observe that it
may also be time for Indian
political celebration as well as
Christmas season celebration.











Chief Saul Terry, X'wisten









Over the past several years the Union of B.C.
Indian Chiefs have been staying strong on the vital issue
of the Land Question policies of the federal government
and how it will affect Aboriginal Title. Many of our
people have always said, especially many of our late
leaders and elders, ‘no matter what do not give up title’.
We have kept the faith sometimes in the face of severe
cniticism. Different types of extreme pressure have been
applied on the Union leadership but many have not
succumbed to government enticement tactics. We must
understand that government will continue to have us
voluntarily give up, surrender, cede, extinguish our
Indianess and relationship to our homelands.

Over the next few days and weeks we will be busy
studying the Supreme Court (Delgamuukw Appeal)
decision as to its statement on Aboriginal Title. The
current understanding ts that the High Court decision
came down in our (Indian Peoples) favour.

Much of the work we need to do is not only to keep
our faith in our title but to plan on how we can continue to
pull settler society along to further understand that Abo-
riginal Title should not ever be extinguished. To accept
extinguishment of title would be political suicide and to
have it impressed upon us 1s genocide.

Much strength in hard work must be done, 1n the
meantime, Ict us celebrate with our families, friends, our
communities the joys of the season and with the hope that
greater achievements will come our way in the New Year
and in the years to follow.

We shall continue to survive and live so Merry
Christmas and Happy New Year from all the staff and
their families.

Yours truly,

Chief Saul Terry
President



UNION OF B.C. INDIAN CHIEFS

GITXSAN GND WET SVWET EN

(Vancouver, B.C. - Dec. 11, 1997) Chief Saul Terry stated
in Ottawa today that the Union of B.C. Indian Chiefs has always
maintained that Aboriginal Title remains unextinguished and
vested in our respective Nations. Self-determination exists as we
have not surrendered nor abandoned governance over our lands,
resources and people.

As aresult of the Gitxsan and Wet’suwet’en court case, in
the Supreme Court Decision which came down today those issues
remain to be dealt with in the political and legal arenas.

The Federal Government must now expressly change its
policy on extinguishment and negotiate with our Peoples on a
Nation to Nation basis. The Provincial Government, while they
have a role to play in negotiations, does not have the authority nor
the constitutional competence of veto.

The Supreme Court has determined that facts which may
have made a difference in the court decision were not included and
that determination of aboriginal mghts standards enunciated in
Van Der Peet were not met, therefore, these matters must be sent
down for retrial.

The Unionof B.C. Indian Chiefs congratulates the Gitxsan-
Wet’suwet’en Nations on a well-fought fight to protect the
sovereignty of their territories.



STAFF NEWS

The UBCIC Research Department is bidding a fond
farewell to David Roth, who has been working with the
UBICIC Specific Claims Research Program for the last
three years. We will miss Dave’s cheery presence around
the office, and his tremendous help with our research
education workshops. David is leaving to work as an
independent consultant. We wish him luck!

The UBCIC is also saying goodbye to Shauna-Leigh
Maloney, who has been working as a research assistant in
support of both the Research Department and the Political
Assistant, Millie Poplar. Shauna-Leigh was a tremendous
help during the Indigenous Peoples’ Caucus at the 1997
Peoples Summit on APEC (Asia Pacific Economic
Cooperation) conference in Vancouver last November. This
marks the second time we have bid Shauna-Leigh goodbye
and wished her well! We look forward to working with her
again.



nN

DECEMBER 1997

UBCIC NEWS



STATEMENT OF THE INDIGENOUS PEOPLES’
Caucus AT THE 1997 APEC Peoples SuMMIT IN VANCOUVER

Kia koutou katoa kua tai mai nei, tena koutou.

In the name of our Creator, of Mother Earth and in
honour of all ancestors met together here in British Columbia.

We the indigenous peoples representing the regions of
South, Central and North America, Asia, South East Asia and
the Pacific Islands begin by acknowledging the considerable
work in the arena of the rights of indigenous peoples over a
long period of time preceding this caucus. We have gathered
here at Vancouver to express our deep concerns over a wide
range of issues that continue to impact on indigenous peoples.

The indigenous peoples represented at this caucus
unequivocally oppose the APEC processes that are represented
at the APEC Leaders’ Conference here in Vancouver. We
declare that the APEC agenda acts to further endanger and
undermine indigenous peoples’ power over their lands, their
ancestral territories and natural resources. In this regard we
vehemently oppose the agenda of the current APEC Leaders
Meeting for fast-tracking the removal of tariffs for fisheries and
forestries.

The indigenous peoples’ caucus calls on the governments
represented at the APEC Leaders’ Meeting in Vancouver to
withdraw from negotiations regarding the Multilateral
Agreements on Investment. The Multilateral Agreements on
Investment seeks to create legislation which will over-ride
international agreements in the arenas of indigenous peoples
rights, labour conventions, environmental agreements and
regulations and human rights issues and which will license
the plunder and pillage of resources in the name of
open economies and trade liberalisation.

We call on the governments represented at the APEC
Leaders’ Meeting to immediately adopt the Draft Declaration of
the Rights of Indigenous Peoples without further change or
amendment inasmuch as it reflects the minimum standards for
the protection of indigenous peoples’ rights.

We also call on the governments of Canada, the United
States, Chile, Australia and Aotearoa/New Zealand to ratify the
ILO Convention 169 regarding indigenous and tribal peoples’
rights in independent countries. The ratification of these two
documents expresses the desires and aspirations of the
indigenous peoples of the world and we seek the support of the
APEC Peoples’ Summit in requesting the ratification of these
documents by the APEC governments.

The indigenous peoples’ caucus at this Summit calls for
the establishment of a permanent indigenous peoples’ forum at
the United Nations, to continue to support and protect
indigenous peoples’ rights to self-determination.

The caucus seeks the support in efforts for the protection
of indigenous peoples’ cultural and intellectual knowledge and
properties which are at this moment being plundered by
transnational pharmaceutical and manufacturing companies as
well as by genctic scientists.

The indigenous peoples’ caucus deplores the devastating
lmpact on the social, economic, and cultural structures of

DECEMBER 1997

indigenous peoples’ by mega-projects involving, for example,
clear cut logging and mining operations, the establishment of
Sustainable fisheries practices and the planned construction of a
huge highway in the La Costa area of Chile which will involve
the massive dislocation of the indigenous MAPUCHE people
and the total disruption of their lives and livelihood.

We also deplore the amoral actions of the World Bank
and the International Monetary Fund which bankrupt
indigenous peoples in the name of aid and development. These
practices include attempt at land mobilisation in Papau New
Guinea as a means of accessing indigenous peoples lands, the
imposition of aid monies in the Pacific which functions to
create enormous indebtedness, and the continued occupation of
indigenous communities by military regimes in the name of
industnial development.

The indigenous peoples’ caucus deplores the co-option of
state-appointed indigenous elite in efforts to gain the consensus
of indigenous peoples to practices which function to benefit the
elite minority, to further marginalise the many, and which are
in opposition to fundamental indigenous cultural and spiritual
values and practices.

The indigenous peoples’ caucus is committed to the
promotion and development of alternative global networks and
Strategies for sustainable and equitable development practices
which are embedded in our shared indigenous cultural values by
collectively and co-operativeness, of guardianship for the land,
and of traditionaliy-based methods of husbandry. To that end
we are attempting to network with other groups who are also
committed to alternative trade and economic development
Strategies and alliances.

We of the indigenous peoples’ caucus have determined
the continuing existence of an Indigenous Peoples’ Forum on a
culturally-appropriate and self-determined basis at future APEC
Peoples’ Summits beginning with that in Malaysia in 1998.

The indigenous peoples’ caucus honours and uplifts the
efforts of our women and youth in renewing and preserving the
holistic way of indigenous peoples’ spiritual life. In particular
we support and uphold the political and economic power of
indigenous women whose particular voice 1s vital in these
times.

Finally, we express our greetings and thanks to the
Tsartlip First Nation, our gratitude to the Union of B.C. Indian
Chiefs for hosting us in our meeting and our greetings and
thanks to the organisers of this 1997 APEC Peoples’ Summit.
We note with regret, however, that is has been a significant
struggle to have indigenous peoples given voice at this 1997
APEC Peoples Summit.

Na reira, kia koutou katoa, tena koutou, tena ra koutou katoa.

€

UBCIC NEWS
DELGAMUUKW CASE (Continued from page 1)

recognized the federal and provincial nght to infringe upon
aboriginal title for valid legislative objectives (such as the
building of highways, hydro-electric dams, and settlements). As
with all legal decisions, this decisions has both its good and bad
points. It gives, while taking away; it recognizes a right,
while limiting that ight through defining it further.

Does aboriginal title exist?
In Delgamuukw the SCC found that abonginal rights
exist In a range or spectrum of

the exact manner which they did historically, and ‘‘there is no
reference to aboriginal! practices, customs and traditions as a
qualifier on’’ aboriginal title; further, “‘lands held pursuant to
aboriginal title, like reserve lands, are also capable of being
used for a broad vanety of purposes.’

What are the limitations of aboriginal title?

In recognizing and grounding a definition of aboriginal
title in our historic relationship with the land, the Court stated
that where aboriginal people use the land in a manner
inconsistent with their historic relationship with the land

aboriginal title will cease.
The relevance of the continuity of



aboriginal nghts, which
range from ‘‘activities”’
(such as the general right to
hunt) to “‘site specific’
aboriginal nghts (where the
abonginal people may have a
right to hunt on a particular
tract of land) to ‘‘aboriginal
litie’’ (an interest in the land
itself). Aboriginal title will be
recognized only where it is
shown that a connection with a
particular piece of land is of
central significance to a
distinctive aboriginal culture.
In certain instances, an
aboriginal group will only be
able to establish a site-specific
aboriginal right to practice an



: |the relationship of an aboriginal

: |community with its land here is
sai that it applies not only to the

i past, but to the future as well.

_ [That relationship should not be
’ t prevented from continuing into
the future, As a result, uses of
© i Iithe land's that would threaten that
| future relationship are, by their
: own nature, excluded from the
é content of aboriginal title.



Examples of uses of land
hich the court considers may be
$ llinconsistent with aboriginal title
re strip mining a hunting ground
r building a parking lot at a
piritual site. ““The land has an
nherent value in itself, which
s enjoyed by the community



aboriginal activity (such as at a
particular fishing spot or hunting ground) but this is not
equivalent to aboriginal title. The court gives the example of
‘*nomadic’’ peoples who changed the locations of their
settlements seasonally and indicates that they may only be
entilled to site-specific aboriginal rights which are less than
aboriginal title. Abonginal

with aboriginal title to it. The community cannot put the land
to uses which would destroy that value.’’ Aboriginal title is
compared to a life interest at common law, where a person can
have use and occupancy of property for their lifetimes, subject
to the condition that they not
damage or destroy the



peoples, on the contrary, see
our “‘commuting”’ to different
areas as an indicator of our
overall relationship with the
totality of our traditional
territory.

The court’s reasoning
suggests that aboriginal title
may nol be recognized over the
entirety of our traditional

This decision puts the courts in a position
of deciding what is and what is not an
aboriginal use of the land, and makes our
aboriginal title suspect to court decisions
deciding that we have given up our title
through a modern usage which they do not
hold to be particularly ‘‘Indian”’.

property so as to prevent
further usage.

What is the test for
proving aboriginal title in
Canadian courts?

In order to establish a
test for proving aboriginal
title, the Supreme Court
modified tests which it had
established in the fishing



ternlones, but rather in more



defined and specific areas.
What remains to be seen is whether subsequent courts will
take a holistic approach and recognize the relationship of
aboriginal peoples to our entire territory as integral to our
cultures or if they will limit recognition of aboriginal title to
limited tracts of land. This will likely be an area of extensive
litigation in the future.

Under the definition of aboriginal title set forth in
Delgamuuhsy, Indian peoples are not bound to use the land in

cases of Sparrow and Van
der Peet. The test for establishing aboriginal ttle, as set down
in Delgamuukw, differs from the general aboriginal nghts test
in two ways. First, aboriginal title must be shown at the time of
sovereignty, as opposed to Van der Peet which only requires
proof at the time of first contact. And second, the need to
establish *‘occupancy’’ of the territory in question is
heightened.

DELGAMUUKW CASE (Continued on page 5)



DECEMBER 1997

UBCIC NEWS



DELGAMUUKW CASE (Continued from page 4)









Aboriginal litle: [ air, economic, compensation required for infringement by the federal
or provincial governments. Aboriginal litle includes a right to use land and
the resources upon the land for the economic benefit of our Peoples.













By defining exclusive use and occupancy as essential
features of aboriginal title, the court also requires that
aboriginal peoples show that they have occupied and currently
occupy the land to the exclusion of others. Where other
aboriginal peoples used the land the court recognizes the
possibility of joint-title (if the two groups acknowledged their
respective nights to the territory while maintaining the right to
exclude other aboriginal groups). In shared territories, a claim
for aboriginal title will be strengthened by evidence that others
had to gain the permission of the aboriginal group before using
the territory.

In shared territories, the court speaks of “‘shared, non-
exclusive, site-specific rights’’ which are not aboriginal title.

How can the federal and or provincial governments
infringe upon aboriginal title?

Aboriginal ttle is subject to the same “‘justification’’
tests which apply to the aboriginal rights as originally set forth
in Sparrow and recently amended in the Van der Peet,
Gladstone and N.T.C. Smokehouse fishing decisions. In
Delgamuukw, the court further lowered the justification
necessary where the federal and/or provincial governments
interfere with aboriginal title if the federal or provincial
governments deem this infringement necessary to sustain the
interests of Canadian society.

Aboriginal ttle is subject to infringement by both the
federal and provincial crowns, subject to a two part justification
analysts. (1) The infringement must be in furtherance of a
compelling and substantial legislative objective, and (2) it must
be in keeping with the special fiduciary relationship between the
Crown and aboriginal peoples.

1. Compelling and substantial legislative objective.
The compelling and substantial objectives (in plain

language, ‘‘a good reason’’) can include the economic

interests of Canadian society and are very broad including:

...the development of agriculture, forestry, mining, and
hydroelectric power, the general economic
development of the interior of British Columbia,
protection of the environment or endangered species,
the building of the infrastructure and the settlement of
foreign populations to support those aims, are the
kinds of objectives that are consistent with this
purpose and, in principle, can justify the infringement
of aboriginal title. Whether a particular measure or
government act can be explained by reference to one
of those objectives, however, is ultimately a question



of fact that will have to be examined on a case-by-case
basis.

It is hard to imagine what government activities would
not fall within the ‘‘valid objectives’’ outlined above.
Practically speaking, as long as a government can show a
general conformity to one of these objectives they will have
fulfilled the first part of the justification test.

2. Is the infringement consistent with the fiduciary
duty of the Crown towards aboriginal peoples?

Fiduciary duty ‘‘does not demand that aboriginal rights
always be given prionty.’” The fiduciary duty owed will vary
according to the aboriginal right in question.

In the case of a minor infringement, the duty to consult
may be limited to the duty to discuss the decision with respect of
the aboriginal lands. However, even in these circumstances

this consultation must be in good faith, and with the
intention of substantially addressing the concerns of
the aboriginal peoples whose lands are at issue. In
most cases, it will be significantly deeper than mere
consultation. Some cases may even require the full
consent of an aboriginal nation, particularly when
provinces enact hunting and fishing regulations in
relation to aboriginal lands.

These comments on consultation, setting out the
requirement that the government consult in “‘good faith’’ and
‘with the intention of substantially addressing the concerns of
the aboriginal peoples whose lands are at issue’ are positive.

Further, following the precedent it set in Guerin, the
Court emphasizes that there are economic aspects of aboriginal
ttle and that the Crown will have to provide fair compensation
upon its infringement of aboriginal title. ‘‘The amount of
compensation payable will vary with the nature of the particular
aboriginal title affected and with the nature and severity of the
infringement and the extent to which aboriginal interests are
accommodated.’

The economic aspect of aboriginal title should provide
a very useful incentive to pressure the government to take
an aboriginal perspective into account in its decisions which
may impact upon aboriginal title.

Are oral histories valid evidence?

The Supreme Court of Canada overruled Judge
McEachern’s dismissal and denigration of the oral evidence of
Gitksan and Wet’suwet’en elders and community members at
trial. Further, the Court recognized that the current rules of

DELGAMUUKW CASE (Continued on page 6)



DECEMBER 1997

5

UBCIC NEWS

DELGAMUUKW CASE (Continued from page 5)

evidence which largely exclude oral evidence (such as stortes,
legends, and community histories) create an impossible
situation for aboriginal litigants who seek to establish their
rights in Canadian courts.

Power of the province to extinguish aboriginal title.

Section 91(24) of the Constitution Act, 1867 reserves to
the federal government power over Indians and lands reserved
for Indians. This power is not limited to ‘‘reserve’’ lands but
encompasses all lands in which aboriginal title vests. The
province cannot intrude upon the federal jurisdiction over
‘Indian lands’’ in a manner which would fundamentally alter
their nature.

Therefore, the province does not have a right to
extinguish aboriginal title. The interest in land granted to the
province at confederation was subject to any other existing
interests. Aboriginal title existed at the time of confederation,
and any interest in land that the province acquired at
confederation is subject to aboriginal title. The federal
government has the nght to extinguish aboriginal title, provided
that 11s intention to do so is clear and plain (however, due to the
economic interest recognized in aboriginal title the federal
government will be liable to pay compensation for those lands
over which it extinguished or infringes upon aboriginal title).
Only upon extinguishment of aboriginal title-can the province
assume full title to the land, but the jurisdiction to extinguish
remains with the federal government.

While provincial laws can apply to Indians on reserve,
even in a manner which has a significant impact on Indians or
their lands, they can not extinguish aboriginal title. The
province may pass laws which are “‘necessarily inconsistent’’
with the continued exercise of abonginal rights, but they cannot
extinguish those nghts.

Obligation to negotiate.

The Supreme Court emphasized the moral obligation
on the federal Crown to negotiate questions surrounding
aboriginal title in good faith:

Moreover, the Crown is under a moral, if not a legal,
duty to enter into and conduct those negotiations in
good faith. Ultimately, it is through negotiated
settlements, with good faith and give and take on all
sides, reinforced by the judgments of this Court, that
we will achieve what I stated in Van der Peet...to be a
basic purpose of s. 35(1) - ‘‘the reconciliation of the
pre-existence of aboriginal societies with the
sovereignty of the Crown'’. Let us face it, we are ail
here fo stay.

Please note, this is brief summary of our legal opinion on
Delgamuuicov and does not include a detailed analysis. If you
would like further information, or a copy of the full legal
opinion, please contact Ardith Walkem at our Vancouver office
Tel: (604) 684-0231,



Legal Brief
Forestry Cases

Council of the Haida Nation v. Minister of Forest and
the Attorney General of B.C. and MacMillan Bloedel Ltd.
(B.C.C.A.), Chief Bernie Metecheah and Halfway River First
Nation v. Ministry of Forests and Canadian Forest Products
(B.C.S.C.) and Her Majesty the Queen v. Thomas Peter Paul
(Court of the Queen’s Bench, Trial Division, New Brunswick).
Please note that this opinion was written prior to the decision of
the Supreme Court of Canada in Delgamuukw.

Council of the Haida Nation v. Minister of Forests:
Bnitish Columbia Court of Appeal, 1997

This case was a unanimous decision heard before a panel
of three Court of Appeal judges. The case was brought forward
jointly by both parties seeking an interpretation of section 28 of
the Forest Act, R.S.B.C. 1979 ¢.140.

In 1961 MacMillan Bloedel was given a tree farm
license (‘‘T.F.L.’’) for 25 years on Haida Gwaii. Subsequently,
the T.F.L. was renewed in 1981 and 1995 pursuant to section
28 of the Forest Act which reads, in part:

A tree farm licence entered into under this Act shall
... (b) subject to sections 27, 27.1, 33 and 33.1,
describe a tree farm licence area composed of (I) an
areas of Crown land, the timber on which is not
otherwise encumbered, determined by the minister.

The Haida brought an application for judicial review of
the two extensions of the tree farm licences, as follows:

... whether the interest claimed by the Petitioners,
namely aboriginal title, including ownership, title and
other aboriginal rights over all of Haida Gwaii (the
Queen Charlotte Islands), including the land, water,
flora and fauna and resources thereof, is capable of
constituting an encumbrance within the meaning of
section 28 of the Forest Act.(p.2)

The question at trial was not whether or not aboriginal
title and rights to the lands and trees exist; But rather, if they do
exist, do they create an encumbrance within the meaning of s.28
of the Forest Act.

The decision turned on the judicial interpretation of the
word “‘encumbrance’’. The Crown argued that the word
‘“‘encumbrance’’ should not be given its ‘ordinary and plain”’
definition, and thus aboriginal title should not be taken into
consideration in an interpretation of section 28. The Crown
argued that a proper interpretation of s. 28 should consider the
‘‘context’’ in which the legislature passed the Act, in particular
the fact that aboriginal title was clearly not considered and the
fact that the Act was meant specifically to legislate the
allocation of forest resources, not to contemplate aboriginal title
or rights.

FORESTRY CASES (Continued on page 7)



DECEMBER 1997

UBCIC NEWS



FORESTRY CASES (Continued from page 6)
Justice Esson found that

It is therefore likely that those who...voted for the
[Forest Act]...had they considered at all the question
whether timber could be ‘‘otherwise encumbered’’ by
aboriginal title, would have said no - because no such
interest could exist. On the other had, had they been
properly advised of the law...they would have
understood that there was a live issue as to whether
aboriginal title still existed and would have understood
that, ifit did, it was capable of encumbering standing
timber on Crown lands. So, while it is reasonable to
assume that the legislature had no positive intention to
include aboriginal rights in ‘‘otherwise encumbered’,
/ see no basis for concluding that there was a positive
intention to exclude

Queen v. Paul

Court of the Queen’s Bench, Trial Division (New Brunswick)

This case involved the arrest of Mr. Paul, a Mic Mac,
pursuant to section 67 of the Crown Lands and Forests Act.

Paul had entered onto Crown lands, licenced to a timber
company for harvesting purposes, and cut down three bird’s eye
maple trees. He cut down the trees for sale, as they were worth
between one and three thousand dollars. Paul argued that,
based on the rights encompassed within the Dummer’s Treaty,
he was not acting “‘unlawfully’’.

At trial, Paul was acquitted on the basis that the nght to
cut and sell trees was covered in the trade provisions of the
Dummer’s Treaty. Justice Turnbull disagreed with the lower
court and found that the right to harvest trees commercially was
not contemplated in the trade provisions of the Dummer’s
Treaty, but was covered under other provisions of the treaty.
Justice Turnbull! finds that



such rights. Only if
such an intention

could be established
could the subjective

[aida: Crown lands are subject to a burden
or encumberance in the form of Aboriginal

the right to harvest trees
(commercially)

...was not thought of by
anyone involved. ...The
treaty did not touch or



intention of the



legislators lend any
support to the case for the respondents. (at 22)

While acknowledging that the ‘‘existing state of
uncertainty’ regarding aboriginal title is problematic, the court
Stated that “‘It is not for us to say what might be done to
alleviate that problem.’’: The fact that subsisting aboriginal
title is difficult to deal with does not, in any way, negate the
necessity of doing so.

Aboriginal title, where it ts established, includes a right
or interest to the forests upon the land.

The court stated that “‘it has long been recognized that
aboriginal title to land can include an interest in the standing
umber’’ and that ‘‘in the absence of a treaty, the rights to the
timber created an encumbrance on the Crown title.”’ Further,
the court accepted the Haida Nation’s contention (argued in an
earlier case) that

...the disputed Meares Island lands, not being Indian
reserves or land reserved for Indians, are to be
regarded as provincial Crown lands subject to a burden
or encumbrance in the form of Aboriginal title, if it
exists. (at 4)

Conclusion:

Ultimately, the T.F.L. in this case was not canceled, as
this was not the remedy sought by the Haida. The only question
before the court was the rather narrow one of the interpretation
of the word encumbrance as it exists in section 28.

This decision reiterates the fact that where aboriginal
title or rights to land/forest resources can be established,
they constitute an encumbrance which the Crown is bound
by, and must address seriously.

intend to govern all aspects
of social intercourse. I am of the opinion that
Dummer's Treaty does allow the present day Indians
fo cut trees on Crown land as of treaty right but does
not on the reasoning of the trial Judge concerning
trade. I believe they have the right on the far
larger question concerning Indians’ rights in
Crown lands and appurtenances which were
recognized and agreed to as set out in the Dummer's
Treaty. (at 3)

It could be argued that this decision provides a strong
basis to support the access of Indians to timber on Crown lands.
While the judgment focuses at length in the results of the
interpretation of the Dummers Treaty the court does not argue
that the nght came into being by way of the Treaty. It would
therefore be open for an aboriginal claimant to argue that their
aboriginal rights (where not recognized in a treaty) carry the
same interest in Crown lands.

1 am of the opinion that the Indians of New Brunswick
do have land rights and that such are treaty rights. I
believe it is like a usafructory right. It does not matter
what such rights are called. It is not a right restricted
fo personal use, but a full blown right of beneficial
ownership and possession in keeping with the concept
of this is our land - that is your land. As stated by the
Supreme Court of Canada the treaties are sui generis
and rights thereunder must be given sui generis
accord. (at 56)

The MicMac treaty preserved a general interest in Crown

land, this general interest in Crown land includes an interest in
the forests upon the land. Because the decision does not hold

FORESTRY CASES (Continued on page 8)



DECEMBER 1997

7

UBCIC NEWS
FORESTRY CASES (Continued from page 7)

that the treaty was the source of the interest (merely the
recognition of that interest) it could be argued that an aboriginal
interest in the land carries with it a corresponding interest and
entitlement to the forests (here used in a commercial manner),

Metecheah and Halfway River First Nation v. Ministry
of Forests and Canadian Forest Products Ltd.
B.C.S.C. (1997)

Halfway River First Nation brought an action seeking
judicial review of a decision made by a Ministry of Forests
District Manager (Lawson) approving an application by Canfor
for cutting permit 212 (CP212). CP212 fell within the bounds
of an area called Tusdzuh by the Halfway River First Nation.

the Minister of Forest not to halt development. (In particular,
the government policy of not halting resource development
during consideration of a Treaty Entitlement Claim).

Bias

After finding that no ‘‘actual bias’’ existed in Dawson’s
decision, the court went on to consider whether or not there was
a ‘‘reasonable apprehension of bias’’. Given the nature of
the decision to be made, the court found that there was a high
duty or obligation on Dawson’s behaif to act fairly.

The duty to act fairly includes the perception of the
parties as to fairness issues. Ifa party reasonably
believes that the MOF was acting



Tusdzuh was adjacent to the



reserve and important for
hunting, gathering plants and
Spiritual purposes. Overall,
Tusduzh was integral both to
Halfway’s physical sustenance
and to the maintenance of their
traditional culture.

Halfway, who fall within
the boundary of Treaty 8, had
filed a Treaty Land Entitlement

/ believe there are several ways one could
describe the status of rights in Crown land. A
legally correct way would be to consider
Crown lands as reserved for Indians. Not
exclusively, but their rights to them are
protected by treaty. The trees on Crown land
are Indian trees. Not exclusively, but their
rights are protected by treaty. The Crown has
jurisdiction and dominion over al land.

unfairly, this will make the process
unfair.

A statement by Dawson that
the approval to CP212 would be
given provided that it abides by
Ministry regulations and the Forest
Practices code ‘‘strongly
suggest([ed] that Lawson had
already concluded that there was
no infringement of Treaty of



claim in 1995 which included



Tusdzuh.
Halfway challenged the approval of CP212 on
Administrative law and Aboriginal/Treaty Rights.

L. Administrative Law:

Fettering of Discretion of a Decision Maker
Fettering of discretion. A quasi-judicial body, embued

with the power under statute to make certain decisions, can be
sald to have fettered its discretion if they are given a range of
Options to consider under their enabling statute, and fail to
consider these fully, *‘limits’’ or ‘‘fetters’’ their discretion.
The decision lists several ways in which a decision maker can
fetter their own discretion:

1. Where a decision maker makes a decision with reference
lo the policy of any other government body.
2. Where a decision maker simply complies with the

direction of a superior without making his or her own decision
on the merits.

On the record, the court found that Dawson fettered his
discretion ‘‘by treating the government policy of not halting
development as a given and by simply following the direction of



(rown Irees are Indian |rees

Aboriginal Rights.’’ Thus,
Halfway had a reasonable apprehension of bias in that Lawson
appears to have decided the matter prior to them being given an
opportunity to participate.

Error of Fact

Halfway challenged Lawson’s decision on the basis that
it was based upon an error of fact, and is patently unreasonably
in that he did not consider enough evidence to support his
finding that the interests of Halfway would not be infringed.

.... There was some evidence supporting his findings,
however, Lawson had no information from Halfway.
How can one reach any reasonable conclusion as to
the impact on Halfway’s rights without obtaining
information from Halfway on their uses of the area in
question? (at 25)

Duty of Fairness and the Right to be Heard:

This decision strengthens the duty on the part of the
Crown to consult with aboriginal peoples prior to engaging in
activities which may impact upon aboriginal nights.

FORESTRY CASES (Continued on page 9)





DECEMBER 1997

UBCIC NEWS



FORESTRY CASES (Continued from page 8)

Faimess here includes “‘an obligation on the Distnct
Manager to make all reasonable efforts and provide every
opportunity for Halfway to be heard. Consultation must be
meaningful and the district manager must take into serious
consideration the information provided by Halfway and
Halfway’s rights in general."

Aboriginal and Treaty Rights/ Native Law Issues:

After deciding that Halfway was successful on
administrative grounds, the court conducted an analysis of
whether or not Halfway’s aboriginal or treaty rights had been
infringed. The court questioned whether the need to ‘“‘be
sensitive to the aboriginal perspective on the meaning of the
rights at stake”’

A letter from Halfway to the Ministry of Forests set their





...the Crown has an obligation to undertake
reasonable consultation with a First Nation
which may be affected by its decision, In order
Jor the Crown to consult reasonably, it must
fully inform itself of the practices and of the
views of the Nation affected. In so doing, it
must ensure that the group affected is provided
with full information with respect to the
proposed legislation or decision and its
potential impact on aboriginal rights. (at 50)





perspective out as follows “‘the full nature and extent of the
{impact on treaty nghts resulting from any one cut block can not
be assessed without examining the full context of cumulative
impacts on the whole area...”

Having regard to the aboriginal perspective, it is not
sufficient that there are other wilderness areas whether Halfway
can hunt, because this would ignore the aboriginal perspective
as to the importance of Tusdzuh.

The decision focuses on the need of the MOF to consult
as part of the test for determining whether an infringement of
aboriginal rights 1s justified.

Conclusion

The MOF owes a fiduciary duty to Halfway. As part of
this duty, the MOF must consult with the Band prior to making
decisions which may affect treaty or aboriginal rights. The
MOF failed to make all reasonable efforts to consult with
Halfway, and in particular failed to fully inform itself respecting
aboriginal and treaty rights in the Tusdzuh region and the
impact the approval of CP212 would have on these rights.

The MOF has failed to justify this infringement under
the second stage of the Sparrow test. Of particular significance
1s the fact that the MOF did not adequately or meaningfully
consult, and therefore the decision was not based on a true
accommodation or consideration of Halfway’s aboriginal
interests. The lack of consultation means that the infringement
of Halfway's interests could not be justified.



Letter to Prume Minister Jean Chretien
December 29, 1997

Dear Prime Minister,

Your government is currently determining its’ response to
the final report and recommendations of the Royal Commission on
Aboriginal Peoples. We have reviewed the pre-release version of
the federal draft, "Proposals for National First Nations Agenda,"
which outlines a framework for discussion and an action plan to be
developed in partnership with Abonginal Nations.

The Union of B.C. Indian Chiefs 1s encouraged that a
response to this critical document is forthcoming. However, the
draft response does not commit the federal government to making
the substantive policy changes related to land and resource use that
were recommended in RCAP. In light of the recent Delgamuukw
decision in the Supreme Court of Canada, we think it is incumbent
upon the federal government to do so.

In Delgamuukw, the Supreme Court has recognized
Aboriginal title as "a right to the land itself." Aboriginal title in
British Columbia has not been extinguished by provincial land
legislation. The Court ruled that under Canada's s.91 (24), the
federal government has a fiduciary responsibility to "safeguard one
of the most central of native interests-their interest in their lands,"
both on and off reserve, from provincial interference.

The Supreme Court also confirmed that "lands held
pursuant to aboriginal title have an inescapable economic compo-
nent," which includes both traditional and non-traditional resource
use and development. The decisive voice of Abonginal Nations
will now have to be given more than simple consultative consid-
eration in resource use and management decisions that effect our
title.

Our member Nations do not support the current B.C. Treaty
Commussion which requires us to extinguish our title in retum for
treaty settlement lands. Delgamuukw makes it clear that negotia-
tions involving land and resource use and allocation can take place
outside the BCTC and Comprehensive Claims processes. The
Supreme Court has provided a firm legal foundation for a thorough
review and change of all federal and provincial legislation and
policy that requires us to extinguish our Abonginal title.

The Union of B.C. Indian Chiefs recommends strongly that
the federal response to RCAP be reassessed to take into account
the Delgamuukw decision. We urge your government to negotiate
with Indian governments in good faith to implement this important
historic Supreme Court decision. We look forward to further
discussion on this matter.

Sincerely,

Saul Terry,
President, Union of B.C. Indian Chiefs

ec: Premier Glen Clark
Hon. Jane Stewart, DIAND
Hon. John Cashore, B.C. Ministry of Abonginal Affairs
Assembly of First Nations
UBCIC Chiefs Council



DECEMBER 1997

UBCIC NEWS

Uncontacted Indian in Brazil face renewed attacks

Urcent AcTION BULLETIN OF SURVIVAL INTERNATIONAL

he Javari Valley is one of the largest indigenous areas in Brazil and lies on the border with Peru. It is over eight million
hectares. Six indigenous peoples live here: the Marubo, Matis, Matses, Kanamari, Kulina and recently contacted Korubo.
There are also at least eight groups of uncontacted Indians, forming the largest concentration of uncontacted people in the

Amazon. The total population is about 4,000.

lhe Indians’ land is under tntense pressure from
politicians closely linked to the powerful logging industry and
cocaine cartels. The nearby towns of Atalaia do Norte and
Benjamin Constant are major centres for timber companies and
drug traffickers who operate illegally. Experts estimate that
90% of the hardwood logged locally comes from the Javari
Valley. In May 1996, BAMA (the government environment
institute) confiscated 21,000 cubic meters

will not permit it to be demarcated.”’

The Javari Valley was designated as an indigenous area
in 1985. European funds have been earmarked to demarcate it
as a priority area. Yet even though the funding is available, the
Brazilian government has shown no signs of carrying out the
demarcation. A campaign urging the Brazilian government to
demarcate and protect the Javan Valley is crucial as pressure on

the Indians and their land intensifies. If



of hardwood from the Javan. However
nobody has been convicted of theft and all
the wood has been stolen back by the
loggers. Drug traffickers have cut
airstrips deep in the Javari Valley in order
to smuggle cocaine into Brazil. Local
people also regularly invade the areas to
hunt and fish. The old company Petrobras
intends to renew seismic testing in an area
where at least three uncontacted peoples
live. Petrobras withdrew from here in
1984 after the uncontacted Flexeiros
attacked its camp.

All the Javari peoples hunt and
gather, and cultivate manioc, plantains
and corn. Most Marubo have had decades

















=| the area is not adequately safeguarded the
:} future of some of Brazil’s most isolated
‘| and vulnerable indigenous peoples looks

grim.

ACTION

Please write courteous letters to:

(Begin: Your Excellency) Exmo Sr. F.H.
Cardoso Presidente da Republica Palacio
do Planalto 70150-900, Brasilia DF, Brazil
Fax:+55 61 226 7566

Exmo Sr Iris Rezende, Ministro da Justica,
Ministerio da Justica, Bloco T, Esplanada
dos Ministerios, 70064-900, Brasilia DF,









of contact. Some worked as forced labour
extracting rubber during the boom at the turn of the century.

The Matis, however, were contacted by FUNAI (the
government’s Indian affairs agency) around 1976, Over half
the population died from disease within a few years. Only now
are they recovering from this tragedy. Their population has
now stabilised and they are reviving many customs.

As loggers penetrate deeper into the Javari, there is
growing concern for the future of the uncontacted peoples, who
are most vulnerable to disease and violence from outsiders. For
this reason, in October 1996, FUNAI made the first sustained
comtact with a small group of 24 Korubo Indians. It set upa
Survcillance post at the mouth of the Itui river which marks the
entrance to the Korubo’s terrttory. Since the post was
established FUNAI has managed to deter all intruders.

Sectors of the government and the military which are
anti-Indian, and which want to exert more control in the area,
are allempting to close the FUNAI post. In August 1997, the
Korubo killed a FUNAI employee. This incident is being used
by the authonties as an excuse to close the post. If this happens
there will be nothing to stop people from invading the Korubo’s
territory. The Indians’ organisation CIVAJA (Javari Valley
Indigenous Council) demands that the FUNAI surveillance post
remains. They say, ‘‘If the FUNAI post disappears, it will be
we the Indians who suffer.”’

The majonty of about 300 Korubo remain uncontacted.
For decades they have shunned all contact with white people,
although there have been many sporadic conflicts resulting in
killings on both sides. Local opinion is extremely hostile to
them. The Korubo are known as ‘caceteiros’ or ‘head
smashers’. “‘Hunting parties have been organised to track
down and kill them. Recently, loggers have been overheard
talking of dynamiting Korubo villages. Indians working for
CIVAJA, have received death threats and threats to set fire to
their office in Atalaia do Norte. Local politicians have
organised demonstrations against the Indians and the mayor of
Atalaia has declared: ‘‘The Javari Valley belongs to us and we





Brazil, Fax: +55 61 224 2448

MAKE THE FOLLOWING POINTS:

If the isolated Indians of Javari are to survive, the area
must be demarcated. This fundamental night is guaranteed in
the Brazilian constitution and must be upheld, European
funding has been earmarked for demarcation of the Javari
Valley and must be spent.

The FUNAI surveillance post on the [tui river is
strategically important. If it is disbanded, the Konubo will be
exposed to renewed attacks and diseases from outsiders.

The government must implement a long-term
programme to protect the area from invasion, particularly
because the isolated Indians are extremely vulnerable.
Protection of indigenous areas is a main objective Cardoso’s
national human rights programme and a constitutional
obligation.

POWER OF THE PEN

Politicians often think that every letter they receive
represents the views of several hundred other people (as many
as 600 in some cases) who do not take the trouble to wnite.

By spending a few minutes writing to the address in this
article you will be taking really effective action to help the
Javari Valley Indians of Brazil.

Wnite in English or your own language. Be brief. It is
very important to be polite-however strongly you feel about this
issue.

Many Survival letter campaigns have succeeded in the
past. It really is worth it.



10

DECEMBER 1997

UBCIC NEWS





Union of B.C. Indian Chiefs
1998 Early Planner











Mee Tune One neu Suecin



The Union of B.C. Indian Chiefs is coming to a community near you.
Please plan to attend one of our community meetings on the following issues.
We want to hear your concerns and your ideas about how to address them.







Day one: Hunting and Fishing Fact Finding Mission
Day two: Forestry, Water Rights, Financial Transfer Agreements.





Dates: January 22 & 23, 1998 - Campbell River, B.C.
February 2 & 3, 1998 - Kamloops, B.C.
February 5 & 6, 1998 - Williams Lake, B.C.
February 9 & 10, 1998 - Chehalis, B.C.

UBCIC to Co-Host e

Indian L.ducation Conference

lhrough our Children we call forth our future
Self detrmination includes the right to educate our children,



The UBCIC attended an education meeting organized by the Adam's Lake Indian Band
on December 9, 1998. The meeting was attended by alot of caring & committed people and
we enjoyed the opportunity to meet with them. We decided that it was necessary to hold an
education conference this spring to address crucial issues facing our communities.

The UBCIC 1s planning an Education Conference hosted by the Neskonlith Indian
Band, Adams Lake Indian Band, and Little Shuswap Indian Band for March or early April,
1998.

The conference will focus on Local Education Agreements, Band Operated Schools,
Special Needs Education, Post-Secondary and more.



lf you would like to become involved to offer your own perspective,
please contact Ardith or Halie at our Vancouver office at (604) 684-0231.







DECEMBER 1997 11

UBCIC NEWS

secwepemc Land
Title Confirmed by
Top Court

ms

TW) ecember 16, 1997 - Kamloops, B.C. - The Shuswap
J Nation Tribal Council of Chiefs are celebrating the
unanimous decision of the Supreme Court of Canada handed
down last Thursday, in the case of Delgamuukw v. Bntish
Columbia. The decision, for the first time provides a clear and
authoritative statement of the law respecting aboriginal title in
this province. ““The provincial government’s contention that
our Secwepemce uUe had been extinguished by provincial land
legislation was completely rejected,’’ stated Chief Arthur
Manuel, Chairman of the SNTC. The Supreme Court of
Canada confirmed that aboriginal title is a constitutionally
protected propnetary interest in land, or as stated by Chief
Justice Lamer: ‘‘a right to the land itself.’” The Chief Justice
also confirmed, ‘‘that lands held pursuant to aboriginal title
have an inescapable economic component.”’

Chief Manuel said, ‘‘This judgment is of vital
importance for the future of the people of our communities, who
have become impoverished as a result of the past denial of our
rights by the provincial government, and by the failure of the
federal government to protect our interests in our lands,
including our economic interests in the resources. It is now
very clear that our peoples have nghts protected by law to use
our traditional territones for economic purposes, in addition to
our hunting, fishing and gathering nghts.”’

The Delgamuukw decision sets out the legal foundation
for the substantial and meaningful participation of First Nations
people in the management and exploitation of resources in the
province. *‘This will give our Nations a stronger voice with
regard to resource development - the issuance of tenures,
licenses, grants, or any economic development that my affect
our title.’” said Chief Manuel. ‘‘We fully expect that the
provincial government, and all those others who have so loudly
denied the existence of our nghts, will respect and comply with
the law, as set forth in this judgment,’’ he said. ‘‘Our
communitics, governments and insututions will be gearing up
to lake appropriate action lo pursue our nghts and interests to
the fullest extent of the law.”’

Contact: Chief Arthur Manuel (250) 828-9789 or (250) 679-
3295

S 2 @ a £ # ©
©

7 O .

& ~*~ O® = « oe

o ws ©. ©,

% -& ' x
© -@

Shuswap Nation Fisheries
Commission Calls for Management
Plan for Beleaguered Thompson
Steelhead




ey Ss *‘If the fisheries management agencies are serious
: about protecting Thompson River steelhead
as well as the related cultural and economic
interests of the region, then they will
work with others in the creation of sucha
management plan... no such plan exists at
this time,’’ says Fred Fortier,
Chairman of the Shuswap Nation Fisheries Commission. Fred
was contacted in Madrid where he 1s attending a United Nations
workshop on the Convention of Biological Diversity and will
address aquatic issues.

The Shuswap Chiefs are disappointed in the recent
decision by the Minister of Environment to keep the Thompson
River open to catch and release recreational fishing of the
beleaguered Thompson Steelhead, despite warnings by their
own biologists about conservation concerns.

Fortier went on to say that, “‘We believe that the decision
is not consistent with the precautionary management approach
we have come to expect from this province.’’ The Shuswap
Bands are concerned about the status of the region steelhead
and the way in which this decision may infringe upon local
aboriginal fishing nghts. Area Indian Bands have largely
abstained from harvesting steelhead for food, social and
ceremonial purposes over the last decade because of
diminishing numbers of spawning fish in the Deadman River in
particular.

Dave Moore, Director of the Commission, stated
*“We are looking for a review of the advisory process,
development of a scientifically defenstble Thompson River
steelhead assessment of the watershed, and the impact of
fisheries downstream and in the ocean.’ The Commission is
clear that the problem is complex and the causes of the declines
in local steelhead are not the faults of over-fishing by sport or
abonginal fisheries in the Fraser, but unless these fisheries are
part of the solution, they will become a part of the problem.

The decision according to Fortier is ‘contrary to the
Supreme Court priorities established in 1990.’’ This is the
landmark Sparrow decision in 1990 which established that
aboriginal fishing rights in Canada are the first allocation
priority afier conservation concerns are met. Fortier went on to
state that ‘“There has been no consultation by the province or
the federal governments with area bands about the needs for
local aboriginal fishing. There is however, an initiative brought
forward by area bands to work together on the creation of a
management plan. For further information:

Dave Moore, Commission Director (250) 828-9837
Mike Galesloot, Tribal Fisheries Biologist (250) 828-9836



DECEMBER 1997

UBCIC NEWS



SPECIFIC CLAIMS REFORM
UPDATE

NATIONAL CLAIMS CONFERENCE
QUEBEC CITY
NOVEMBER 1997

Despite the short notice, there was a good turnout of
Chiefs from across the country (and British Columbia) at the
Assembly of First Nations National Claims conference in
Quebec City on November 5th and 6th. The conference was an
opportunity for the AFN’s Chiefs Committee on Claims to bring
people up to date on the latest details of the proposal they have
been working on to reform the existing specific claims process
(the *“‘working draft’’). More importantly, it was also a chance
for the Chiefs Committee on Claims to obtain critical feedback -
and hear regional concerns - about the proposed changes to the
specific claims policy and process.

The conference followed on the heels of a number of
information meetings held throughout BC (and elsewhere in the
country) in October. The views expressed during those regional
meetings were represented at the National Claims Conference.
The different regions of the country echoed the same concerns
about the working draft. Everyone acknowledged there were
sull many details to be worked out, but the consensus appeared
to be that this proposed overhaul of the current process
represents a significant improvement, and that First Nations
should move ahead with it and continue working to the 1998
transition deadline.

As a result of the National Claims Conference last
month, the AFN’s Chiefs Committee on Claims now has a
detailed pnonity list of specific, as well as logistical, issues that
must be dealt with. The Chiefs Committee on Claims is now
focussing on addressing these outstanding matters, and is
beginning to lay the groundwork for a submission to cabinet
(necessary because the new independent claims body is to have
a legislated authority) and public education campaigns.

The UBCIC has been involved in the effort to overhaul
the specific claims process. The UBCIC has been represented on
the Chiefs Committee on Claims by Neskonlith Chief and
Shuswap Nation Tribal Council Chair Arthur Manuel and
Wayne Haimila of the SNTC as well as Leigh Ogston from the
UBCIC Specific Claims Research Department. If you would like
more information about this claims reform effort, please feel
free to contact them. The UBCIC is prepared to hold further
information meetings, as required, to advise BC Bands about
any further developments in this area.





MED ADVE’: ete

Wie. Vyonderfal

Sth Foor - 342 Water St.
Vancouver, B.C.
Ve6B IB6











Union of B.C. Indian
Chiefs Statement on APEC

VANCOUVER, B.C. (November 21, 1997) -- The
Union of B.C. Indian Chiefs is here at the Peoples Summit
Against A.P.E.C. as a symbol, as reminder to the
Canadian Governments that there remains much unfinished
business with Indigenous Peoples in Canada.

We are humiliated that we cannot, as the original
Peoples of this land, play a role as proper hosts to our brothers
and sisters from around the world. A situation which
demonstrates that we have not yet emerged out of the repressive
colonial role that has brought us te such a sorry socio-economic
State.

Eighteen leaders and their entourage are discussing
ways and means of greater trade liberalization which also
includes Canada, without first addressing to a Just conclusion,
the land question, especially here in British Columbia.

Some years ago former Premier Harcourt was lamenting
the fact that investment in British Columbia was being deterred
by | Billion dollars per annum because the uncertainty caused
by the unresolved land question. Let it be very clear that
nothing has changed since that statement was made by Premier
Harcourt. Investors should understand that the lands in British
Columbia remain as unceded lands of Indigenous Nations.

Where nation to nation treaties exist in British
Columbia they remain unrecognized hence unimplemented to
this day. This places great uncertainty over those lands and
resources falling into those treaty areas.

Over the years successive governments in Canada have
tried to deny the legitimacy of our Peoples, our territories
(homelands), our governing systems, our economies, our social
history; all to no avail.

We have survived! We exist and no amount of
manipulation of history shal! change that fact.

The avoidance of dealing with our Peoples, on our terms
must cease. Treaty and non-treaty Indigenous Nations shail not
surrender, cede our Aboriginal Title for an economic
development agreement which deprives our future generations
benefits from their sacred homelands.

We give notice to APEC state leaders and their political
coporate elite that investment, especially in British Columbia,
remains very uncertain.



DECEMBER 1997

13

UBCIC NEWS

TSILHQOT IN
NATIONAL GOVERNMENT

Re-burial of Tsilhgot’in human remains and reclamation of
gravel mining site at Sheep Creek in the Chilcotin on
Wednesday, November 12, 1997.

The Tsilhqot’in Nation will re-bury ancestral remains
unearthed by a gravel mining operation on ‘private’ ranch land
in September of 1996 and totally reclaim the gravel mining site
on Wednesday, November 12, 1997,

The authorization for the decision to get on with a
dignified re-burial of the venerated Tsilhgot’in ancestors was
reached at a Tsilhqot’in National Government [TNG] Council
of Chiefs meeting held at the Xeni Gwet’in First Nations
community office on November 5. That decision followed firm
direction from Tsilhqot’in Elders to bring the on-going delays
to a firm resolution before the snow flies this fall.

The long delay in retrieving the Tsilhgot’in ancestral
remains was mainly the result of jurisdictional traps built into
the B.C. Treaty Commission process that obligates the
provincial government to get full agreement from all First
Nations expressing an interest in areas claimed by their BCTC
traditional territory boundary lines.

The Sheep Creek area is claimed by the Northern
Shuswap Bands of Alkali Lake and Sugar Cane, but the TNG
has made it clear to their neighboring Native Nations that the
west side of the Fraser River is undisputed Tsilhqot’in
traditional territory that has historically been occupied and
defended by the Tsilhqot’in people.

The appropnate government agencies have been notified
of the Tsilhgot’in Nation decision to conduct the re-burial and
reclaim the site which has been declared and sanctified as a
Tsiulhqot’in Sacred Burial Site. Notification has been sent to
Cariboo South [and hopefully Chilcotin] MLA David Zimhelt,
Aboriginal Affairs Minister John Cashore and the Provincial
Archaeology Branch to get the necessary and permitting in
place the have the human remains and ‘cultural remains’ now
held in the morgue at Cariboo Memorial Hospital in Williams
Lake tumed over to the TNG Council and Chiefs at 10:00 a.m.
on November 12.

The TNG has gone through the necessary consultation
with B.C. government to resolve all related issues and fully
expects full cooperation from government agencies in making
the reburial ceremony and work project to secure the site
conducted peacefully and with dignity.

| TNG Tribal Chairman Ervin Charleyboy made this
clear.

‘“We expect the provincial government to respect our
Jurisdiction over our burial sites. We finally got fed up with
them sending us messenger boys and now have a firm
commitment from Christie Brown, the Assistant Deputy
Minister of Aboriginal Affairs, to clear up the red tape holding
back the turnover of our forefather’s remains to us so we can get
them back to their proper resting place,’’ he said.

The indignity of this unearthing of our ancestral remains
has outraged TNG Deputy National Chief Ray Hance.

‘We feel as strongly about this desecration of our
ancestors as the people of Williams Lake would be if we took
bull dozers into the cemetery and tore it up. We’ve had enough,
that whole land at the Sheep Creek burial site is Tsilhqot’in
territory and we back Neil McDonalds claim for compensation
from the B.C, government for loss of his ranch land. This sit is
now Tsilhqot’in and will not be further disturbed for any
commercial purpose.





Chief Hance also addressed the claim by United Concrete
and Gravel Ltd. that they want to remove their inventory of
gravel piles from the site before the reclamation work is done.

‘*That will not happen. Those rock and gravel pile
contain bones of our ancestors and will not be used to pave
roads. On Wednesday they will be pushed back into the big pit
where they came from,”’ he said.

The Tsilhgot’in re-burial ceremony and reclamation
work will be open to outside observer well-wishers to join
Tsilhqot’ins to pay their respects to these eight so-far-identified
people who were torn from their graves and placed in a box ina
morgue away from Tsilhqot’in homeland.

Provincial government officials, outside First Nations,
land ‘owner’ Neil McDonald, and the media have been invited
to attend the re-burial ceremony and reclamation work project.

As Tl’etingox Chief Leslie Stump put it:

‘“We want the whole world to know that Tsilhqot’ins
own our land and we don’t give a damn about outsiders’ laws
and rules telling us we don’t control our sovereign territory.’’

-30-

Contact: Ervin Charleyboy (250) 481-1157



REQUEST FOR ACTION

PLEASE WRITE TO SEN BEN NIGHTHORSE CAMPBELL.
He has agreed to hold Congressional hearings into the events
that occurred at Pine Ridge SD between 1972-1975. This is the
first time the true story will be told in a government public
forum of the circumstances surrounding the act of self defense
on June 26. This is is the act resulting in the killing of the two
FBI agents for whose deaths Leonard was unjustly convicted.

We need to write letters of support for these hearing to:

Sen. Ben Nighthorse Campbell
Chair, Indian Affairs Committee
Hart Senate Bldg., SH#838
Washington, DC 20510

This is a chance that will not come again for a the real
story of Pine Ridge and the circumstances leading to the
firefight to be publicly known. Information denied to the
defense committee would be available to these investigators.
We know that many special interest groups will want to prevent
these hearings from occurring. These special interests want
these circumstances to remains hidden. But these hearings can
open the door to freedom for Leonard Peltier, and we must do
everything possible t o see that the hearings are held and that
this chance does not disappear through inaction!

Write to Sen. Ben Nighthorse Campbell in support of
hearings into the events at Pine Ridge. We cannot lose this
chance for justice for Leonard.

FREE LEONARD PELTIER:

Northwest Leonard Peltier Support Network
5201 Capital Blvd. Ste 119
Tumwater WA 98501
360-943-3274



14

DECEMBER 1997

UBCIC NEWS



SISK4 BAND VOTE J TO
AND PROTEST SISK

f tar a To iy te

Zz F | | i



rl

_

November 7, 1997

The Siska Indian Band’s general band meeting for
November 1997 was attended by a record number of band
members. The Chief, Council] and the Band Members
unanimously voted to continue to preserve and protect their
remaining tribal lands, the Siska Watershed, rather than enter
into a financial partnership with J.S. Jones Timber of Boston
Bar. Honour and tradition is preserved.

The 7,000 ha. Siska Watershed, located 200 kls
northeast of Vancouver, is the last pristine, intact watershed on
the northern flanks of the Cascade Mountains, and is the only
remaining old growth forest-lands in the band’s traditional
termlory.

Siska Band Chief Ms. A. Munro, Councillor Mr, M.
Michell, Band Manger Ms. P. Johns, Resource and Forestry
advisors Mr. C, Michell, and Mr. G. Pierre, along with Mr. G.
Everett, recently toured the adjacent Mohowkan Watershed.
They expressed a strong concern over the number of wash-outs
and land slides that occurred along the main access roads and
stream bank. Ms. Munro stated that one of the Band’s major
concem is the preservation of water quality and fish habitat.

The Council was impressed with the Chilliwack Forest
Districts slope stabilization program in the Mohowkan
Watershed. A Ministry of Forest’s innovative Bio-Engineering
technique that utilized traditional knowledge to solve
contemporary problems. The Band members expressed a strong
interest in exploring that type of watershed restoration
techniques.

The Siska Band has been in contact with members of the
academic research community, and are planning to establish a
world class Biological Research Station in the valley.

They anticipate that, in addition to the recently
discovered rare and endangered Tailed Frog, Mountain Beaver,
and the potenual hybrid White-Spmuice, that many other new
and unnamed or rare species will be discovered in the Siska
Watershed.

-30-

Contact: Ms. A Munro (250) 455-2219



UNION OF B.C.INDIAN CHIEFS

29th Annual General Assembly

October 23, 1997, Fort Rupert, B.C.: The Union of B.C.
Indian Chiefs has always stood firm and fast on it’ principles
and will never compromise Aboriginal Title!’’ said U.B.C.L.C.
President Saul Terry at the 29th Annual General Assembly of
the Union at Fort Rupert. His opening remarks set the tone for
the three day assembly.

Saul Terry warned of the many government initiatives, such as
the B.C. Treaty Commission, underway that are all attempts to
separate Indigenous People from their lands and resources.

‘*We must always be wary of these different strategies
that all have the same agenda-to dis-inheret us and to
separate us from our homelands.!”’

‘All of these processes have the same intent which is
to take away our lands and our resources for ever.
Extinguishment is final, terminal and forever.”’

‘*Many of our people are living well on borrowed
money,’ Terry said in reference to the BCTC
requirement to borrow money before treaty
negotiations. ‘‘Some of our leaders have the arrogance
to think they can negotiate their way around
extinguishment and genocide.”’

**Genocide is being perpetrated against Indian people.
Indigenous people cannot continue to exist 1f the
processes of termination continue to be practiced and
applied to Indigenous people.’’ He warned that
‘“Buying into the system of termination may become a
new reality.’

“‘Tf this happens, then future generations or our people
will not benefit from our homelands. Governments are
denying Indigenous People their own truth and they
are trying to make us into their image.”’

Terry called for living treaties that will preserve Indigenous
homelands and sustain future generations: ‘‘We need to do this
so that we can survive as a Peoples, so that we can survive as

Nations.’’

‘“The reality is that we have been impacted by colonial
process, the reality is that we must find ways out of this
colonial processes, the reality is that we must find ways
out of this colonial rut. Indigenous Peoples need
economies to sustain their communities into the future.
Substantial and real solutions need to be sought out.”’

‘*Some people say that we are taking too hard a line.
My God, if our future is in jeopardy we must state that
and stop the dangers in the treaty process and other
government initiatives now offered by us,’’ Saul Terry
concluded.

-30-



DECEMBER 1997

15

UBCIC NEWS

NUXALK NATION GOVERNMENT

S
ZS



: ree (ORG
LS

i

~First of all I would like to acknowledge
the Creator for this day.



Nuxalk reoccupies Scw7cwlk valley to
protect it from clearcut logging

NA y English name is Jesse Oud,

* © my Nuxalk name is Sunscw. I
am a young Nuxalkmce who is dedicated
to keeping our culture and heritage
strong. As a Nuxalk sovereigntist I have
broken away from the governments
reserve boundaries and have re-occupied
a traditional village located in the
Scw7cwlk (Skowquiltz on a map) valley.
This is a village which once provided for
thousands of our people, and could
Sustain all Nuxalkmc today. Since the
beginning of ume, the Scw7cwlk has
provided an incredible abundance of
salmon (4 species), mountain goat,
moose, deer, wolves, black and grizzly
bear, eagles, ravens, as well as countless
other species of animals and birds; all of
which hold the identity of our people. It
is from all these we get our names,
songs, dances; and are provided with the
incredible gifts of food and medicine
from the Creator. Without these our
Nuxalkmec way of life would not exist.

I am wrung to all who share the
same heart and dedication in preserving
this land from the destruction of
corporate clear-cut logging practices.
The Sew7cwlk valley, my home, where I
have constructed a traditional pithouse,
is the place | will remain throughout the
winter and continually hereafter. The
Scw7cwlk is slated to be roaded next
spring, 1998. These roads are preparing
access to 55 proposed clear-cuts. Permits
granted by the Ministry of Forests
allowing this destruction by logging
companies are illegal. We, as Nuxalkmce
people, have never ceded our territory,
never entered any co-management or
interim agreements, or signed any
treaties concerning our traditional
lerntories.



The Nuxalk Nation is the First
Nation in the Bella Coola area on the
mainland coast of B.C. Iam asking First
Nations, Canadian and international
supporters to write to the Ministry of
Forests to stand strong in defense of
Nuxalk sovereignty and our Scw7cwlk
village

Statement from Hereditary Chief
Qwatsinas:

*“The reoccupation, asserting and
reaffirming of Nuxalk sovereignty
protects the rainforest in the mid-coast of
British Columbia. Other methods stall
the clearcut destruction of the rainforests
but only temporarily. Reoccupation is a
long terms strategy which draws public
attention to the destruction of Nuxalk
lands. The reoccupation of Scw7cwik by
Suncw (Jesse Oud) and Alecia (his
partner) is a courageous action that
demands respect and recognition from
all peoples. The ‘‘Land of the Nuxalk’”’
has been lost for a long time, but a
rebirth is happening: the Nuxalk are
returning home to their traditional lands.
You have our support’

Statement from Head Hereditary
Chief Nuximlayc:

The Nuxalkme must recognize
and use their “‘Smayustas’’ (stories of
origin) again. Through our smayustas,
we must bring back our family chiefs and
names and claim our watersheds that
belong to them. We must recognize our
homelands where our names come from,

NUXALK (Continued on page 17)



Aboriginal Youth Video
Promotes Healthy Lifestyle
Choices

November 6, 1997- Ottawa --
Approximately 100 First Nations, Inuit,
and Metis youth from across the country
gathered in Ottawa at the Adawa Native
Friendship Centre today to attend Health
Canada’s launch of Balance-Healing
Through Helping. The Honourable Ethel
Blondin-Andrew, Secretary of State,
Children and Youth, participated in the
event which also included
representatives of aboriginal
organizations, health organizations and
government who came to celebrate the
youth’s achievements at this premier
screening. Developed by aboriginal
youth for aboriginal youth, the video is
expected to reach more than one million
aboriginal people in Canada.

‘‘ Aboriginal youth from across
the country have volunteered hundreds of
their hours of their time and candidly
shared their personal experiences and
insights to create this unique video,’’
said Secretary of State Ethel Blondin-
Andrew. ‘“They have focused on
positive messages which portray healthy
lifestyle choices-their accomplishments
are truly commendabie.”’

More than 50 First Nations, Inuit
and Metis youth participated in the
writing, acting and production of the
video. Based on the traditional values of
aboriginal peoples, it is an upbeat look
into the lives of aboriginal youth with
discussions on a range of key issues such
as peer pressure, family values, physical
activity, goals and personal health.

The 45 minute video was
developed within Health Canada’s
Aboriginal Wellness Campaign, a multi-
year strategy that promotes healthy
living through culturally sensitive
vehicles. The Department provided
approximately $100,000 to support this
initiative. Copies of the video may be
obtained from Publications, Health
Canada, Brooke Claxton Building,
Address Locator 0913A, Ottawa,
Ontario, K1A OK9, Tel (613) 954-5995,
fax (613) 941-5366



16

DECEMBER 1997

UBCIC NEWS



NUXALK (Continued from page 16)



and our history originates. When these watersheds are
destroyed, our family heritage, and our way of life is destroyed
also. I say thanks to Suncw and Alecia for taking that step to
protect the Scw7cwlk. Nuxalk life and heritage is a treasure to
the world.

We ask all First Nations, and all other supporters to
write to the authorities to stop the proposed destruction of
the Scw7cwlk which is a unique place of beauty in this world.
We ask you to stand strong with us in defense of the Scw7cwlk

and Nuxalk Sovereignty.”’
-30-

Contact: Melvina Mack (250) 982-2152, Bella Coola, B.C.





UBCIC Mourns Passing of Longtime
' Employee Christine Clark

=" The Union of B.C. Indian Chiefs Executive,
Members and Staff is deeply saddened to announce
the sudden passing of longtime UBCIC employee
Christine Clark on November 6, 1997 at St. Paul’s

Hospital, Vancouver, B.C. due to cancer.

Christine worked for the Union of B.C.
Indian Chiefs for sixteen years. Many of you may
remember Chris at various UBCIC Annual
Assemblies, meetings and through her work at
Mandell, Pinder. Her commitment to Indian
Government, dedication to the recognition of our
Aboriginal Title & Rights, and wonderful sense of
humour will be greatly missed by us all.

Chris is survived by her four children,
Patricia [16], Tamara [12], Melanie [10], and Fred
[9], as well as her mother, sisters, brothers and
numerous friends.

A celebration of Chris’ life and memorial
service was held Sunday, November 9, 1997 at the
Longhouse Church in Vancouver. Funeral Services
were held in Bella Bella the following week.

Condolences and contnbutions in lieu of
flowers can be sent to the family addressed to
Arlene Brown, Chris’ sister, in c/o Mandell, Pinder,
500 - 1080 Mainland Street, Vancouver, B.C. V6B
2T4 or in c/o of UBCIC at 500 - 342 Water Street,
Vancouver, B.C. V6B 1Bé6.

Mandell, Pinder is also establishing a trust
fund for Chris’ children. Anyone wishing to
contribute to this fund can contact Louise Mandell,
Leslie Pinder, Clo Ostrove or Brenda Gaertner in
Vancouver at Telephone: (604) 681-4146.





CHIEFS COMMITTEE ON CLAIMS
MEETING
WITH MINISTER STEWART

INAC Minister Jane Stewart reaffirmed her
commitment to move forward with the joint AFN/
INAC specific claims reform initiative at a meeting
with the Chiefs Committee on Claims in early
December. The Minister expressed pleasure at the
progress that has been made to date, and the meeting
was regarded by committee members as successful
and positive. It is expected that the Minister will sign a
protocol affirming her commitment to the specific
claims reform process.



UNION OF B.C. INDIAN CHIEFS
JOINT POLICY COUNCIL

LAMASAS ANA SAAT ARR AAT AD

The Joint Policy Council’s forestry workshop will
inform communities about current forest issues and
government policy. It will also provide community-
based input to guide negotiations at the Joint Policy
Council forestry table. The workshop will give community
members and UBCIC staff an opportunity to discuss
policy related to such things as access totimber, Traditional
Use and archaelogica! studies, the consultation process,
the Jobs/Timber Accord, and economic development.

The Forestry Workshop 1s availableto communities
and/or Tribal Councils upon request. There is no charge
for the workshop, but staff travel expenses must be
covered by the Band or Tribal Council. For more
information please call:

Paulette Regan, UBCIC Joint Poltcy Council Coordinator
Phone: (604) 684-0231 Fax: (604) 684-5726





DECEMBER 1997

17

UBCIC NEWS

RESOURCE CENTRE
UPDATE

For those who have access to the Internet, we
thought we would share some of the Website
addresses that we use and have discovered that
might be of interest:

B.C. Provincial Archives
www.bcars.gs.gov.bc.ca

B.C. Government Directory
www.dir.gov.bc.ca

Hudson's Bay Archives
www.gov.mb.ca/chc/archives/index

Department of Indian Affairs
www.inac.gc.ca

Institute of Indigenous Government (RCAP
documents here)
www. indigenous.bc.ca

Assembly of First Nations
www.afn.ca

B.C. Ministry of Aboriginal Affairs. Treaty
negotiation
www.aaf.gov.bc.ca/aaf/negotiat/heads

x dpepiessdiit Fiiessesrtves
Kb rate. i My F
Stee



eiSge:

aarp ete.
Eee eer ere

Environmental Assessment
WWW. @a0.gOV.DC.ca




Fourth World Documentation

Project
www. halycon.com/F WDP/fwdp

Liberal Party of Canada
www. |iberal.ca

Hope that everyone has
a safe and happy holiday
and that good things
come your way in the
New Year.

Wendy & Lorraine



HAVE A SAFE AND HAPPY
HOLIDAY FROM THE
STAFF OF THE UNION OF
8.6. INDIAN CHIEFS









18

DECEMBER 1997

UBCIC NEWS



MAP OF THE SOVEREIGN INDIGENOUS NATIONS
TERRITORIAL BOUNDARIES: JUNE, 1993

The Union of B.C. Indian Chiefs’ map of the Sovereign Indigenous Nations Territorial Boundaries is the only contemporary
map that accurately shows the traditional tribal territories of the 23 Indian Nations in British Columbia. The six colour map measures
28" x 36".

The tribal territories are the homelands of distinct Nations, within which their respective peoples share a common language,
culture and traditional forms of political and social organization. These homelands have been occupied by the Indian Nations since
time immemonal. Up tothe present, the Indian Nations in British Columbia have never surrendered their ownership of their homelands
(aboriginal title), nor have they surrendered their original sovereignty as nations to govern their homelands (inherent jurisdiction).

Information on the territorial boundaries was compiled by the Union’s research portfolio and President’s office between July,
1990 and April, 1993 from archival research and information provided by elders, chiefs, and tribal councils, Chief Saul Terry, President
of the Union and a graduate of the Vancouver College of Art (now the Emily Carr College of Art and Design), prepared the working
drafts for the map.

Design and cartography for the June, 1993 map was done by David Sami, chief cartographer of Multi Mapping Ltd. in
Vancouver, B.C., using a 1:2,000,000 scale base-map from the Surveys and Environment Branch of the British Columbia Ministry
of Environment, Lands and Parks. All territorial boundaries shown on the map are subject to further revision, as additional information
becomes available. Contact the Union of B.C. Indian Chiefs at (604) 684-0231 for ordering information.

28" x 36" / Scale: 1:2 600 600 / Six Colours























DECEMBER 1997 19

UBCIC NEWS
UNION OF B.C. INDIAN CHIEFS





















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