Union of B.C. Indian Chiefs Newsletter (Spring 2002 Special Edition)

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Union of B.C. Indian Chiefs

NEWSLETTER

Spring 2002
Special Edition

UBCIC Launches Referendum Campaign
The UBCIC is encouraging native and non-native voters to show their opposition to the bogus
treaty referendum process by participating in an "active boycott".
A growing coalition has been the referendum. The process only selves
formed consisting of the UBCIC, First to vilify our efforts to reconcile our
Nations S u m m i t , U n i t e d N a t i v e Aboriginal Title and Rights with the
Nations, political, labour, church and Province of British Columbia and the
concerned citizens to strategize over the Government o f Canada."
best course of action to take in response
"This referendum will form the
to the treaty referendum that has begun foundation of aboriginal policy in B C .
distribution on April 2,2002.
We have to show and demonstrate that
On April 4 , 2002, Chairs from there are many reasonable fair-minded
16 Tribal Councils from across the British Columbians that don't support
province held a press conference to this very shallow and narrow-minded
officially mark the beginning of a series approach," concluded the President
of active boycotts to the rejection of
"This government does not know
the treaty referendum. Following the what it has unleashed in this province,"
press conference the leadership gathered said C h i e f Judith Sayers o f the
outside and held a one time "bunting of Hupacasath First Nation. "People are
ballots" as a symbol of their opposition expressing anger and frustration to this
to Gordon Campbells latest sham.
province. The dark cloud that has been
hovering
over the treaty process that has
Silently boycotting the treaty
Assembly
referendum is not enough. Ballots that been acknowledged by justices in this
are recorded as spoiled or rejected will province has become even blacker,"
only serve to legitimize and fullfill the continued Erickson.
a s p i r a t i o n s o f the B C Government.
Debbie Jeffrey, President of the
The questions are so ambigous that Tsimshian Tribal Council said this
even a N O vote becomes problematic.
referendum will turn back the clock on
An active boycott w i l l demonstrate the relationship building we have
that organizations, minority groups, and worked so hard on over the years and
a large contingent o f citizens in this will promote volatile incidents."
province are in solidarity with first
REFERENDUM (Continued on page 3)
nations people in B C . In addition, we
see the ill-fated referendum process as
blatant racism when majority dictates
the further v i o l a t i o n o f our basic
human fundamental rights.
Chief Stewart Phillip, President of
the UBCIC commented, "Today was the
first of many events where people from
across the province will actively boycott
th

20.

INSIDE THIS E D I T I O N . . .
2. Message from the President
4. Haida v. BC and Wayerhaeuser
5. UBCIC Press Release ~ Haida v.
BC and Wayerhaeuser
6. Fish Farms
7. New Wildlife Act
8. UBCIC Joint Policy Council
9. First Nations Governance Initiative
10. UBCIC Legal Update
16. Interior Alliance: Haida Case~
Where Do We Go Now?
18. Skwelkwek'welt
19. Native Youth Movement's Press
Release
of Manitoba Chiefs
Support Appeal to S.C.C.
21. Four Yukon First Nations
Succesfully Conclude Land
Claim Negotiations
22. Campbell's Referendum Folly
Hasn't Got a Leg to Stand On
23. UBCIC Press Release ~
Referendum
24. UBCIC Research Update
27. UBCIC Press Releases:
-Softwood Lumber
-Osoyoos Indian Band
28. UBCIC Press Release ~ Treaty 8
29. Reflections from the Land of the
Great White Cloud

1

Message From the President
As the treaty referendum ballots lands on
the doorsteps of voters in B C there are
other evils larking in
the wings that are also
preying on first nations people. This
time it not only affects our nations in
B C but our brothers
and sisters r i g h t
across Canada. Let
Chief Stewart Phillip, Okanagan
me once again introduce the First Nations Governance Act Initiative presented
by yours truly Indian Affairs Minister Robert Nault.
During the course of 2001, a series of meetings were
held in Vancouver, Winnipeg and Ottawa to address serious
concerns being tabled by the Minister that threaten our inherent right of self-determination. What the Minister is proposing is potential modifications (tinkering) to the Indian Act
and to the Corbiere Decision by the Supreme Court o f
Canada. Modifications that would only serve to 'limit and
monitor' the way first nations people conduct their business.
In April 2001, Minister Nault attempted to launch a national
consultative initiative with First Nations communities and leaders. The consultation process that took place through the
fall, was labeled as designed to incorporate both traditional
means and the latest technology. Innovations included the
use of an interactive Web site, a 1-800 number and an extensive publicity program designed to reach all First Nation community members regardless of locale.
By December 2001, Minister Nault could only acclaim
for a handful of support by first nation communities, and as
expected stated that he intends to ignore the majority decision of the democratically elected leadership of First Nations
across Canada. Nault also was reported to saying, "I think
it's high time that the A.F.N, restructure itself so it can work
with the government of Canada.
During the A F N Confederacy meeting in Ottawa resolutions were passed by the leadership expressing their outright rejection to the proposed First Nations Governance initiative. In addition through resolution tire assembly also called
for Minister Nault's resignation due to his arrogant, confrontational and disrespectful attitude and his divide and conquer
approach.
UBCIC members joined with others to form the "First
Nations Coaltion for Inherent Rights" which was instrumental in striking down the proposed F N G initiave.

2

So with the numbers being so one sided to kill the F N G
initiative, why won't it go away?
It won't go away because Nault is still insisting on proceeding with the F N G initiative in a clumsy effort to rapidly
offload their fiduciary obligations.
I now understand that the first draft of the F N G initiative will be introduced in Parliament in May. I am working
with the Coalition for Inherent Rights to develop strategies
against the bill. The strategies include media, political lobbying, litigation and direct action.
The message we will state is that we find the F N G
unacceptable as it undermines our Aboriginal Title and Rights
and we will tell Nault that:
•
We have a Nation-to-Nation relationship with
Canada that has been constitutionally enshrined and
judicially recognized.
• The federal government approach is unlawful,
violates the Constitution and will be successfully challenged in the court.
• Passing the F N G would increase economic uncertainty.
•
The F N G reduces the federal governments responsibility to First Nations without granting us the
capacity to deal with our communities.
•
Whatever changes are required to the Indian Act,
a unilateral action by the federal government is not
the way to go.
•
The unilateral process of the F N G failed to take
into account the legitimate First Nation leadership.
• The Government of Canada cannot unilaterally
act in any way to diminish or alter our Aboriginal Title
and Rights without the full participation of, consultation with and consent of First Nations.
We will be presenting more details of the strategies
at the next Chiefs Council meeting. If you have any questions regarding the F N G you can contact Don Bain at the
Vancouver office at (604) 684-0231.

REFERENDUM (Continued from page 1)
"Flash Gordon will have us all eating Campbells
Soup after this referendum because that is all we will be
able to afford stated Chief Dan Wilson of the Okanagan
Nation Alliance. "This referendum w i l l attract more
international sanctions against the British Columbia
economy and,will put thousands of people out of work, and
this is a real black eye on the international stage for B C . "
Chief Allen Weselowski of the Carrier Chilcoltin
Tribal Council said, "We are on aboriginal land and the
treaty hasn't been answered in this province. The people
of British Columbia are being asked to vote on an issue
they don't have information about. That does not show
strong leadership in this province."
"Whose next?" asked Mavis Erickson. "Our rights
are being placed on the table by the referendum and no one
else in this country has been subjected to that before. Will it
be woman's rights, the mentally incompetent or other
minorities? That is what British Columbians have to ask
themselves when they receive their ballots."
The Anglican Church has publicly delivered a
pastoral letter to their 200 churches during a Sunday
Service advising their membership to vote no i f they decide
to participate with the referendum. Citing the reconciliation
with first nations people has a long way to go and this
process is a step in the wrong direction to achieve that.
Aboriginal organizations are being swamped with
calls from non-native supporters asking die question of
what to do with their ballots?

The Union of B C Indian Chiefs is encouraging
all native and non-native voters to forward
their unmarked ballots only to our Vancouver
Office at: Union of B C Indian Chiefs
5th Floor - 342 Water Street
Vancouver, B C .
V6B 1B6

Your Unmaked Referendum Ballot can be
Dropped off at any of the following
Referendum Collection Site Locations.
UBCIC Vancouver Office (604) 684-0231
UBCIC Kamloops Office (250) 828-0319
Songhees First Nation, Victoria, (250) 386-1043
Hupacasath First Nation, Port Alberni, (250) 724-4041
First Nations Summit, Vancouver, (604) 990-9939
Britannia Center, Vancouver
Okanagan Indian Band, Vernon (250) 542-4328
Boothroyd Indian Band, Boston Bar, (250) 457-9624
Shuswap Nation Tribal Council, Kamloops,
(250)828-9789
Carrier Sekani Tribal Council, Prince George
(250) 562-6279
If any o f the above treaty referendum collection sites are
not in your area contact your nearest local band office or
native organization for clarification. You could also contact
the U B C I C Vancouver office for assistance.

List of other Endorsers on the Boycott
• BC Coaltion of Women's Centres
• BC Federation of Labour
• BC Human Rights Coalition
• BCGEU
• Canadian Muslim Federation
• College Institute Educators Association
• Council for Senior Citizen's Organizations
• Father Jim Roberts, Roman Catholic Church
• Office & Professional Employees Union Local #378

The Coalition will be strategizing over the next couple of
weeks as to the best course o f action to take with the
collected and counted ballots. Detailed information will be
released once it becomes available. More referendum
information can be found on our Website at:

www.ubcic.bc.ca

• Paul Winn, QC, Immigration/Refugee Lawyer
• Society Promoting Environmental Conservation
• Suzuki Foundation
• Vancouver Status of Women
• Western Canada Wilderness Committee
• Filipino Community Organizations

3

Environment-Aboriginal Guardianship
Through Law and Education

>

The claims to the Haida people to Aboriginal title and
Aboriginal rights were supported by a good prima facia case
in relation to all or some significance part of the area covered
by T F L 39 and Block 6.
"

Haida Nation v. B C and Weyerhaeuser. 2002
In a unanimous decision of the British Columbia Court of
appeal in Haida v. Ministry of Forests, 2002 B C C A 147, released
on February 27, 2002, the Court confirmed that there is a
constitutional duty to consult and to accommodate Aboriginal
rights and title prior to a judicial determination regarding the
existence, nature and scope of those rights. British Columbia is
not entitled to proceed with business as usual while the treaty
process drags on, as the following quote from the court's decision
demonstrates:
The issue is an important one. If the Crown can ignore
or override Aboriginal title or Aboriginal rights until such
time as the title or rights are confirmed by treaty or by
judgement of a competent court, then by placing
impediments on the treaty process the Crown can force
every claimant of Aboriginal title or rights into court and
on to judgement before conceding that any effective
recognition should be given to the claimed Aboriginal
title or rights, even on an interim basis.
The case, brought by E A G L E on behalf of the Council of
the Haida Nation, involved a judicial review application by the
Council of the Haida Nation, in which the Haida sought to
overturn the decisions of the Minister of Forests to replace Tree
Farm Licence 39, a portion of which is located in Haida Gwaii.
The Court held that the Crown is under a constitutional
obligation to consult with Aboriginal people who claim title and
rights, before a court decision on the existence and scope of those
rights. The Court decided that the obligation to consult is about
accommodation. Accommodation extends to "both the cultural
interests and the economic interests of the Haida people."
The Court held that the province, and in this case
Weyerhaeuser (the licencee), had an obligation to consult the
Haida about accommodating their aboriginal title and aboriginal
rights when they were considering the replacement of the licence.
The obligation, in this case, arose from the following
circumstances:
>

The Provincial Crown had fiduciary obligations of utmost
good faith to the Haida people with respect to the Haida
claims to Aboriginal title and Aboriginal rights;

>

The Provincial Crown and Wayerhaeuser were aware of the
Haida claims to Aboriginal title and Aboriginal rights over all
or at least some significant part of the area covered by T.F.L.
39 and Block 6, through evidence supplied to them by the
Haida and through further evidence available to them on
reasonable inquiry, an inquiry which they were obliged to
make; and

4

The Court concluded that, while there is always an
enforceable, legal duty to consult and to seek an accommodation,
the strength of the obligation to seek an accommodation
proportional to the strength, or potential soundness, of the
Aboriginal title and rights claim. Where the case for Aboriginal
title and rights is strong, and the infringement likely, as in this
case, the obligation to reach an agreement is at its highest.
With respect to remedy, the Court held that the remedy
should protect the interests of all parties pending a final
determination. The Court therefore chose not to quash the
licence, though it commented that litigation in which Aboriginal
title and rights, and their infringements are established, could
result in the licence being held to be invalid or void. The court
left open the possibility of determining the validity of the licence
as an interim matter as well. In the meantime, the Court held that
the duty to consult to accommodation began before the licence
was transferred and renewed in 1999-2000, and continues. The
Court granted a declaration that the Crown and Wayerhaeuser
had, and continues to have, a legally enforceable duty to the
Haida to "consult with them in good faith and to endeavour to
seek workable accommodations". The Court warned that the
manner in which the duty to consult and reach accommodations is
discharged "will have a very significant impact on the final
determinations by a court... .which is considering the Aboriginal
title and Aboriginal rights of the Haida people, about whether that
title of those rights have been infringed, or continue to be
infringed, and, particularly, about whether any infringement was
justified."
To ensure good-faith negotiations, the Court created a
supervisory role for a Judge of the Supreme Court to make orders
during this period. If the Province or Wayerhaeuser fails to make
good efforts to reach an accommodation, not only is their conduct
reviewable by the Court, but when Aboriginal rights and title are
proven (as they will be in the later stage of the proceedings), the
Province and Weyerhaeuser's conduct will be considered in the
context of a remedy.
The Court also indicated that this type of proceeding, a
judicial review based on the Crown's obligations to consult and
accommodate, can serve as an alternative framework to
interlocutory injunctions for dealing with the reconciliation
process prior to a final determination of Aboriginal title and rights
by a court or confirmation of those rights in a treaty.
The court deferred to a trial on Aboriginal rights and title,
the question of the legal burden on Provincial Crown title arising
from Section 109 of the Constitution Act, 1982.
The judgement has far-reaching implications:
The Government's position that they will not negotiate and
litigate is now called into question. The Court imposed both a
duty to negotiate in good faith on the Province and the company,
an also ordered a supervisory role for the Court in the context of
litigation.
Haida (Continued on page 5)

Haida (Continued from page4)
The Province's position as to why it will not implement the
Delgamuukw decision has now been repudiated. The Province
has maintained that Aboriginal People must first prove their Title
before the accommodation principles of Delgamuukw are
engaged. Not only is the government required to accommodate,
but the Court has created an alternative legal framework to
challenge the failure of the Government to do so, where interests
in the resources are granted to third parties. The duty to
accommodate is on the Crown, and so the duty extends to all
Ministries where decisions with respect to the alienation of
resources are made, including in our opinion, to DFO and to
BCAL.
The Court held that the duty to accommodate is triggered
by the First Nation establishing a prima facie case of their
Aboriginal title and the likelihood of an infringement occurring. It
would be prudent for First Nations to gather together their
evidence to establish a prima facie case of Aboriginal title and to
deliver this evidence to the Province and Canada and to put the
Government on notice that they must consult to accommodate
Aboriginal title when making decisions regarding the alienation of
resources from your territory. Where the evidence is strong and
infringements likely, the duty to accommodate is at the highest
level.
The Court has gone some distance to readjust the burden
of proof. Once again prima facie case has established, the
Province is under an obligation to inquire into the extent of
Aboriginal Title and Rights, and possible interference before the
granting of a new tenure.
Environmental

G r o u p s Sign Strategic

Protocol with H a i d a Nation
(Vancouver, B C . March 6,2002) March 6 marks an historic
moment with the launch of the Haida title case with the signing of
a protocol with four key environmental groups ~ ForestEthics,
Greenpeace, Sierra Club of B C , and Rainforest Action Network ~
to work in a strategic alliance to respect the earth, waters and
culture of Haida Gwaii.
"This is a great occasion to build partnership between
environmental groups and the Haida Nation. We share the
Haida's respect for the earth and waters of the Haida Gwaii," said
Vicky Husband, Conservation Chair, Sierra Club of B C .
"The International community and marketplace continue to
place British Columbia under heavy scrutiny for our environment
practices and respect for First Nations rights," said Merran Smith,
Director, B C Coastal Program, ForestEthics. "We are proud to
support the Haida Nation through this protocol signing and to
stand by them when they launch this landmark case for the Haida
and the rights of all first nations."
"We look forward to working with the Haida Nation to
support a truly sustainable local economy that will benefit the
Haida and the ecosystems of Haida Gwaii," said Catherine
Stewart, Forest Campaigner, Greenpeace Canada.
The protocol signing took place at the Squamish
Recreation Centre, March 6,2002 following the launching of the
Haida title case.

Haida Nation v. B.C. and Weyerhaeuser
(Coast Salish Territory/Vancouver, February 28,2002)
Chief Stewart Phillip commended the victory of the Council of the
Haida Nation relative to its case Haida Nation v. B.C. and
Weyerhaeuser in the B . C . Court of Appeal on January 27th, 2002.
Chief Phillip stated, "As in the Taku River Tlingit decision, the
court has recognized that the Province of British Columbia's
approach to consultation is fundamentally flawed. Aboriginal
Title is a confirmed fact, just the same as a legal and fiduciary
duty exist on part of the province to respect and fully
acknowledge our Aboriginal Title exists."
In the Haida case, the Province issued a tree farm licence
(TFL) to MacMillan Bloedel who transferred the T F L to
Weyerhaeuser. As stated in the decision "The principal issue in
this appeal is about whether there is an obligation on the Crown
and on third parties to consult with an aboriginal people who have
specifically claimed aboriginal title or aboriginal rights, about
potential infringements, before the aboriginal title or rights have
been determined by a Court of competent jurisdiction."
"What we find compelling in the Haida decision is the
Court of Appeal ruled that there is an 'enforceable, legal and
equitable duty to consult' to both the Provincial Crown and to
third parties. This will certainly open the door to some frantic
rethinking of strategy by the Attorney General's office and of the
big corporations. No doubt the 'third parties' will not be happy
with this decision." Chief Phillip continued, "The Court has
confirmed once again that our Aboriginal Title and Rights exist
and must be meaningfully and substantively addressed. Both the
Provincial Crown and 'third parties' can no longer continue
adopting a 'business-as-usual' approach as though our Aboriginal
Title and Rights exist only as abstract legal notions."
"This decision further strengthens our defence of our
Aboriginal Title and Rights and puts third parties on notice that
they must consult with First Nations or they may suffer the legal
consequences. In this case, I am sure that the Council of the
Haida Nation will lead the province towards a process that firmly
recognizes their 'fiduciary obligations of utmost good faith' to not
only the Haida Nation but ultimately to all First Nations within
British Columbia" concluded Chief Phillip.

-30FOR MORE INFORMATION CONTACT:
Chief Stewart Phillip Cell: (250) 490-5314
President, Union of British Columbia Indian Chiefs

5

Fish farms accused of 'biological
pollution' B.C. salmon farms allowing
Atlantic salmon to escape, according
to Alaskan report
B.C. salmon farms have been practising "biological
pollution" by deliberately allowing the annual escape of hundreds
of thousands of Atlantic salmon, charges a report by the Alaska
department offish and game expected to be released this week.
Atlantic salmon pose "such an enormous threat to wild
Pacific salmon" that farms guilty of such releases should have
their licences revoked, says the report, a copy of which has been
obtained by The Vancouver Sun.
"It's a dirty secret not being put forward by industry," Bob
Piorkowski, the department's scientific program manager, said in
an interview. "We're talking about several million fish being lost
over the last 10 years certainly."
The white-paper report, prepared by half a dozen
biologists in the fish and game department, contends that when
B.C . fish farms replace their nets with larger mesh, they
knowingly allow the escape of "small or slow-growing" fish that
would be uneconomical to raise to full size.
The practice is routine in the industry to reduce the
amount of net area that can become fouled with algae, thereby
reducing maintenance costs. According to the state's report:
"Deliberate release of 'non-performing' fish [estimated at 3-5% of
production] totals hundreds of thousands offish annually and this
number is neither precisely known nor reported."
"Deliberate releases are referred to as 'leakage' and occur
when the smaller fish simply swim away when large mesh nets are
substituted for the smaller mesh nets in which the fish are initially
contained."
The report says the release of "Atlantic salmon into the
Pacific Coast ecosystem amounts to biological pollution," adding
"introductions of non-native species have frequently resulted in
unexpected and often catastrophic consequences from habitat
destruction, disease or parasites, hybridization, reproductive
proliferation, and predation and competition."
Although the report refers to B.C. as well as salmon farms
in the State of Washington, it is clearly more concerned with the
former. B.C. has 121 fish farm licences, with 91 operating sites
(Washington has 11 salmon farms in Puget Sound) and has
received the provincial green light for unlimited expansion, all the
way to Prince Rupert near the Alaskan border, effective April 30.
B.C. Salmon Farmers Association executive director Anne
McMullin did not respond to repeated phone and e-mail messages
seeking comment on the specifics of the Alaskan allegations.
Bud Graham, assistant deputy minister of agriculture, food
and fisheries, said he doubts the problem is as serious as
suggested by the Alaskans. His understanding of leakage is the
sort of loss that occurs when a salmon accidentally flips its way
to freedom during a grading operation.

"We're talking about miniscule numbers," Graham said.
"What is described by this would be a deliberate release and
that's against the law. If there was evidence that kind of activity is
taking place, we would be prosecuting."
The B.C. government amended its aquaculture regulations
in October 2000 to require that "mesh size of netting must be
small enough to contain the smallest fish in a population of fish
placed in the net pen."
Graham denied the amendment was prompted by the
industry doing precisely what Alaskans have alleged. Instead, he
said the amendment was part of a package of changes designed
to "establish a series of benchmarks against which an inspector
could evaluate whether the industry was practising due diligence
to minimize the escapes from taking place."
No fish farms have been charged under the mesh-size
amendment. However, last November, the province did charge
Omega Salmon Group Ltd. with four counts under the B.C.
Fisheries Act following theJuneescape of more than 13,000
farmed Atlantic salmon through a hole in a farm net near Port
Hardy.
The province is now seriously considering an industry
request to have the mesh-net amendment removed. "We want to
prevent escapes," Graham said. "We don't want to necessarily
specify for them every single way... because we can't think of
all the ways that you could prevent escapes from happening."
He added it would not make economic sense for industry
to allow three to five per cent of its fish to escape, noting stocks
are normally graded into specific pens based on growth rates.
"They wouldn't deliberately do that," Graham said, putting
the official number of escapes at about 60,000 per year in B.C.
However, in a recent report for the David Suzuki
Foundation, John Volpe, associate professor of fisheries ecology
at the University of Alberta in Edmonton, said a prevailing
"educated guess" among scientists puts leakage from net pens at
0.5 to 1.0 per cent annually.
Based on 1999 productionfigures,he calculated, that
would represent up to 110,800 Atlantic salmon, 25,300 chinook,
and 5,900 coho — all in addition to those officially reported. But
he added "until the issue is rigorously examined, we will not know
to what extent these estimates reflect reality."
Volpe added that salmon farmers themselves often do not
know how many fish they have in their nets, so wouldn't know if
some were missing.
David Lane, Executive Director of the T. Buck Suzuki
Environmental Foundation, said he's heard anecdotal reports of
industry allowing escapes during net changes, but has never seen
the allegation spelled out in a government document. And he's
never heard industry officials admit to the practice. "Of course,
they're into denial about most problems."
The Alaskan report took Laurie MacBride, Georgia Strait
Alliance Executive Director, by surprise. "Wow," she said. "I've
heard of chronic leakage. But it was defined by industry as
unavoidable small escapes that occur without them realizing

Fish Farms (Continued on page 7)
6

Fish Farms (Continued from page 6)
it, maybe a little hole in the net. That chronic leakage could be
deliberate, that's an interesting new dimension. I wouldn't put it
past them... nothing surprises me anymore about this industry."
Alaska's Piorkowski said he and a department colleague learned
about deliberate leakage while attending an Atlantic salmon
workshop sponsored by Canada's fisheries department at the
University of B.C. in early 2001, several months after B.C.
approved its net-mesh amendment. (Norway representatives
reported the same leakage problem in their own country,
he said).
"It came from the industry," Piorkowski said. "They said
three to five per cent... so if you grow 10 million Atlantic
salmon, that would be 300,000-500,000 salmon essentially being
deliberately released. You don't want to feed them anymore
because they aren't going to grow fast enough to get to market.
"We were really shocked at the meeting when this was
looked at as just a normal, acceptable practice. Eventually, with
most animal populations, with leakage like this, there's a fair
chance they'll get established."
Piorkowski also complained that leaked fish are not
officially reported. "There are a number of farms in B.C. that
have never reported the loss of a single fish. You know they have
losses. There are so many farms, so scattered, certainly any
thinking person would think that [the reported] figure has to be
way low."
Graham could not immediately confirm that some B.C.
salmon farms have never reported a single escaped salmon, but
stressed that every salmon, regardless of how it escaped, must be
officially reported.
The state of Alaska has banned salmon farming since 1990,
concerned that Atlantic salmon pose a threat to wild Pacific
stocks should they transfer diseases and parasites, or become
established and compete for food and spawning beds.
Despite those concerns, the first Atlantic salmon was
recovered in Alaskan sea waters in 1990, and since then, almost
600 have been documented by the department of fish and game.
Untold numbers go unaccounted for, straight into frying
pans or home freezers or the garbage. The first documented
freshwater catch in Alaska occurred in 1998 in Ward Creek, just
north of Ketchikan.
The Alaska white-paper report is expected to be released
officially this week to the fish and game department's Web site, at
http://www.ak.gov/adfg/

Larry Pyrin
As printed in the Vancouver Sun
Monday, February 25,2002

Community Consultations Get
Underway for New Wildlife Act
IQALUIT,Nimavut (April 12,2002)
Sustainable Development Minister Olayuk Akesuk today
announced that extensive community consultations on creating a
new Nunavut Wildlife Act are about to begin. 'The Wildlife Act
will affect every single person in Nunavut, and we want
Nunavummiut in every community to have the opportunity to
personally tell us their concerns and provide us with comments to
help us draft the new Act. Our consultation panels will travel to
25 communities during April and May,' Minister Akesuk said.
The development of a made-in-Nunavut Wildlife Act is a
priority of the Nunavut government. The current Wildlife Act was
passed in 1978 by the Northwest Territories, and was adopted by
Nunavut on April 1,1999. It does not meet the needs of Nunavut.
The goal is to replace the current Wildlife Act with
legislation that:
• Is modern and consistent with wildlife provisions of
the Nunavut Land
• Claims Agreement (NLCA);
• Incorporates Inuit Quajimajatuqangit, and
• Is consistent with national and international
agrements on the Protection of biodiversity, species
at risk, and habitat.
The government has adopted a partnership approach to
develop the legislation. A working group consisting of representatives of the government, Nunavut Wildlife Management Board
(NWMB) and Nunavut Tunngavik Incorporated (NTI) was
formed to guide development of the Act. Ben Kovic, Chairperson
of the NWMB, praised the government for its collaborative
approach in creating a new Act. 'The NWMB welcomes the
opportunity to participate in the development of a new Nunavut
Wildlife Act. It is essential that the hunting rights and the management system set out in the NLCA be fully reflected in the Act,'
he said.
Raymond Ningeocheak, NTI's Second Vice President,
stated: 'I am extremely pleased that public consultations are
taking place and Inuit will have the opportunity to state what
they would like to see in the Nunavut Wildlife Act. In the past we
would just see the finished product. Today we have the opportunity to have our voice heard. This is an exciting opportunity to
incorporate Inuit Quajimajatuqangit and Traditional Knowledge
as per Canada's obligation under the NLCA and the International
Agreement - Convention on Biodiversity.'
The community meetings will be hosted by two travelling
consultation panels made up of representatives from the three
parties. In addition, a number of special facilitators have been

Wildlife Act (Continued on page 15)
7

Joint Policy Council Update
Hadih and Tansi from the Joint Policy Council Department:
There are a number of issues that we have been working
on. The following is a brief summary of a few of these
items: the meeting with the Secretary of State Stephen
Owen, the Referendum Update and the Louise Mandell
Referendum Analysis and Strategy Options, Dispute
Resolution developments with the Treaty Negotiation
Office, the First Nations Governance Initiative and an
update of the Inherent Rights Conference in Winnipeg,
Manitoba.

UBCIC meeting with Secretary of State Stephen
Owen
February 15, 2002 a delegation of chiefs had a formal
meeting with the newly appointed Secretary of State
Stephen Owen. The delegation formally presented a
synopsis of the principles and goals of the U B C I C by
President Chief Stewart Phillip. The one hour and half
meeting allowed the Chiefs to express their concerns such
as the issues involved with the First Nations Governance
Initiative (FNG), Aboriginal Title and Rights issues, an
information package containing information such as a letter
from Delgamuuk'w Implementation Strategic Committee
(DISC) Co-Chair Art Manuel outlining the problematic and
outdated Comprehensive Land Claims Policy. The Legal
Review of Canada's Comprehensive Land Claims Policy
prepared by Mark Stevenson, a DISC press statement that
calls upon Stephen Owen to provide a formal response to
an A F N Legal Review of the C C P . The resolutions passed
rejecting the F N G Process.

Referendum
In an effort to educate the general public about the complexity and long history of the fiduciary obligations of the
Province and Canada, which are grounded in the Constitution of Canada, UBCIC asked aboriginal rights lawyer
Louise Mandell to do a legal analysis of the proposed
referendum questions put forward by the Select Standing
Committee on Aboriginal Affairs. The main point of the
analysis is that the Province lacks the jurisdictional authority to undertake or implement the results of the referendum.
The Mandell Analysis is available online at http://
www.ubcic.bc.ca. We now know that the official date of the
distribution of the referendum ballots is April 2, 2002. The
referendum questions will be 8 of the initial 16 questions
posed. W e are exploring options as to what advice we will
provide as what to do with the referendum ballot. A press
release will be sent out with the different options.

8

Dispute Resolution Mechanism
Friday, February 8, 2002 a meeting was held at the Victoria
Treaty Negotiation Office between Jean Dragushen,
Catherine Panther and Jose Villa-Arce with the UBCIC J P C
Department Director Don Bain and Policy Analyst Nicole
Hetu. One of the main items of discussion was a dispute
resolution process to be explored in the new fiscal year.

National Protection of Treaty & Inherent Rights
Gathering
At the March 11 and 12, 2002 "Treaty & Inherent Rights
Gathering," hosted by the Assembly of Manitoba Chiefs in
Winnipeg, Manitoba passed a resolution that reads:
Further be it resolved, The Implementation Committee will meet to develop a plan based on the Action
Plan drafted for the Protection of Treaty and Inherent
Rights Gathering for review and approval to be
provided to the Assembly First Nations Special
Assembly, the plan will include:
• International Strategy
• Committee designed and driven dialogue from the
perspective of First Nations on the F N G A ;
• Draft Band Council Resolutions to send to
Canada;
• Media Strategy, public awareness and letter
campaign to all Members of Parliament, Senate,
and others;
• National Day of protest across the lands when the
F N G A is tabled;
• Strategic plan to proactively impact the legislative
and policy process;
• Legal action based on the violation of Treaty and
Inherent Rights;
• Address the violation of human rights by the
Government of Canada; and National petition with
education materials attached.
In recognition of the financial difficulties of the
Assembly of First Nations the national Implementation Committee asks the A F N to provide office
space with a phone and fax for a national coordination office with staffing to be identified and provided
by the National Implementation Committee.

Moved by Chief Stewart Phillip
Seconded by Chief Dwayne Blackbird

Manitoba Chiefs Delegation Launches
Major Lobbying Campaign Against
Governance Initiative (March 21, 2002)

Resource Centre, Spring 2002
Library Staff Update

Jenn Campbell has been Acting Head Librarian since
September.
Kim Lawson, (Heiltsuk), was hired as the new
Representatives of the Assembly of Manitoba Chiefs
Librarian. Jenn is staying at the Resource Centre, returning to her
( A M C ) started a major lobbying campaign to stop the
work as library technician. Arlette Alcock, who was at the
proposed First Nations Governance Act Initiative o f the Resource Centre for four months stays with the UBCIC, now
Minister of Indian Affairs, Robert Nault. The delegation is works with the Research Department.
composed of Grand Chief Dennis White Bird of the A M C ,
Kim is completing her Masters in Library and Information
Grand Chief Frances Flett o f the Manitoba Keewatinowi Studies at UBC and has worked at the Xwi7xwa Library at the
Okimakanak (MKO) and Grand Chief Margaret Swan of the House of Learning at UBC and Heiltsuk Cultural Education
Centre.
Southern Chiefs Organization.
The delegation met with M P ' s o f various parties
including John Harvard, Rick Laliberte and Larry Bagnell o f
the Liberal Party. The MPs have undertaken to bring the views
of the Manitoba delegation to the attention of Minister Nault
and to the House of Commons.
"The MPs were very interested in the issues we raised
about the legitimacy and value of the consultation process
that the Minister used in this initiative. Minister Nault claims
that over 400 First Nations communities support his process.
This is totally erroneous. The MPs clearly understood our
concerns that this process responds to the Minister's interests
and not to First Nations needs and aspirations. They agreed
that any process of this nature should be First Nations driven
in order to ensure that our concerns and interests are at the
forefront of any initiative", stated Grand Chief Dennis White
Bird.
The delegation also met with the full N D P Caucus
where the main discussions centred on the enhancement o f
self-government implementation for First Nations
governments. The delegation will be meeting with other MPs
and key supporters in the Ottawa area today, the last day o f
their initial lobby campaign in Ottawa
This is the first step of the implementing of an action
plan developed in Winnipeg on March 11 and 12 , at the
National Treaty and Inherent Right Gathering. A National
Political Action Committee was established and they will
implement the action plan that calls for continued and
escalating lobbying efforts and protests to stop this i l l conceived plan by Minister Nault and start dealing with the
real issues facing First Nations in Canada. Lobbying efforts
will also be directed towards church, labour, political parties
and interested groups in the coming weeks.
th

Contact Louis Harper (204) 799-3482

th

Summer Research Visits
The Resource Centre has good materials about
aboriginal law, First Nations history and culture in BC, and issues
such as intellectual property rights. There are lots of things here
that can help you if you are doing claims research, including
government records and reports; the DIA Reserve Schedules;
findings aids for other archives; microfilm copies of archival
documents; journals, newsletters; informationfromStatistics
Canada; census material; and some academic reports.

Planning a research trip to the Resource Centre?
Please let us know when you plan to come so we will be
prepared for your visit. Call us at (604) 602-3433 or 3434, or
send us an email at [email protected] If you fax us (604 6845726) a description of your research or the information you want
to find, we can give you a better idea of what we have that will
help you. We can also suggest other libraries and archives that
may have more information to help plan your trip. We have lots
of important material that isn't in our catalogue yet. Our two
microfilm reader/ printers can be very busy over the summer. You
can search through our catalogue or thefindingsaids for the
Department of Indian Affairs records (RG-10files)fromthe
UBCIC Web Page, http://www.ubcic.bc.ca/ Please bring a Band
Council Resolution (BCR) showing that you are conducting
research on behalf of your Band,

Planned work at the Resource Centre
We have applied to HRDC for funding of summer
students again this year. We hope to have two students working
on the putting the last books from the card catalogue into the
computer catalogue, and another student working with the maps,
photographs and sound recordings that aren't in the catalogue
yet. We also hope to find funding for the Archival Media
Preservation Project. Much work was done on a basic inventory
- there are over a thousand video, film and audio tapes. Wendy
Ancell identified 442 tapes which are deteriorating, and need
conservation work and copying.

9

Legal Update
Taku River Tlingit First Nation v. Ringstad
B.C. Court of Appeal
January, 2002

are respected or considered in government decision making violates the purposes of Section 35(1) of the Constitution Act, 1982.
After observing that the guiding principle of Section 35(1) is to
reflect the trust-like relationship between aboriginal peoples and
government, the Court said that the Province's position
.. .would be contrary to that guiding principle to interpret
s. 35(1)...as if it required that before an aboriginal right
could be recognized and affirmed, itfirsthad to be made
the subject matter of legal proceedings; then proved to the
satisfaction of a judge of competent jurisdiction; and finally
made the subject of a declaratory or other order of the
court. That is not what s. 35(1) says and it would be
contrary to the guiding principles of s. 35(1)...to give it
that interpretation.

The Province issued a mining certificate allowing further
development of the Tulsequah mine. The Taku successfully
challenged this decision before the B.C. Supreme Court claiming
that the Province had not adequately consulted with them about
their Aboriginal Title and Rights. The Province appealed to the
B.C. Court of Appeal and argued that it does not have a legal or
fiduciary duty to consult with Indigenous Peoples about Aboriginal
Title or Rights, or to take those rights into account, until those rights
The Court explicitly rejected the position taken by the
have first been proven in Court.
B.C. Supreme Court in the Westbank logging case (where the
chambers judge required that aboriginal title be proven, before the
The majority of the B.C. Court of Appeal rejected the Province was required to consult about possible infringements of
Province's arguments, saying that the Crown's position (of ignoring that title), and reaffirmed the decision in Taku that there is a duty
Aboriginal Title and Rights) has "the effect of robbing s. 35(1) of on the part of government to consult before aboriginal title is
much of its constitutional significance" and would "effectively end proven.
any prospect of meaningful negotiation or settlement of aboriginal
land claims."
Here, the Court found that the evidence put before the trial
judge showed that the Haida had a "good prima facie case to
The Court of Appeal clearly stated that the government is claim for aboriginal title and aboriginal rights" which "gives
under a legal duty to consult with Indigenous Peoples about their content to the obligation to consult and the obligation to seek an
Aboriginal Title lands and resources, with the aim of addressing accommodation". The Court then went on to suggest that the
those concerns, and that this duty does not require that Indigenous greater evidence there is of the existence of aboriginal title and
Peoplesfirstgo to Court to prove the existence of their rights. Where rights, the greater the obligation on the Crown to consult.
government proceeds with land and resource use approvals, without
taking assertions of Aboriginal Title into account, there is the
However, in its decision, the Court did not cancel the Tree
possibility of a constitutional violation of Aboriginal Rights, which Farm Licence saying that this step would likely require a full trial
lead to a "serious injustice".
involving the proof of aboriginal title, and of the fact that the licence
provided an infringement of that title. Instead, the Court issued a
declaration that the Province and Weyerhauser were under a legal
Haida Nation v. B.C. and Weyerhauser
duty to consult with the Haida and to seek an accommodation of
B.C. Court of Appeal
the
aboriginal and non-aboriginal interests. The Court directed the
February, 2002
parties to a negotiation/consultation process and said that issues in
dispute could be referred to the B.C. Supreme Court who would, in
The Haida challenged the renewal of a Tree Farm Licence
effect, supervise the negotiation/consultation process.
on Haida Gwaii without consultation or consideration of the
Aboriginal Title and Rights of the Haida. The Court of Appeal
In its decision, the Court emphasized the need for the
confirmed its earlier decision, in Taku, that the Province in under a
reconciliation
of aboriginal and non-aboriginal interests through a
legal duty to consult with Indigenous Peoples about asserted
process
of
negotiation,
and further suggested that the Courts should
Aboriginal Title and Rights (which have not been proven in court)
be
prepared
to
supervise
this process:
and to take these into account in its decision-making.
Justice Lambert, writing for the Court, added several
important points regarding the Crown's duty to consult. First, he
said that the duty to consult arises, in part, from the Royal
Proclamation, J 763 and that "Whenever thatfiduciaryduty arises,
and to the extent of its operation, it is a duty of utmost good faith."
The Court went on to say that the Province's position - of
requiring aboriginal peoples to first prove their rights before they

If the Crown can ignore or override aboriginal title or
aboriginal rights until such time as the title or rights are
confirmed by treaty or by judgment of a competent court,
then by placing impediments on the treaty process the
Crown can force every claimant of aboriginal title or rights
into court and on to judgment before conceding that any
effective recognition should be given to the claimed
aboriginal title or rights, even on an interim basis.
Legal Update (Continued on page 11)

10

Legal Update (Continued from page 10)
...But its [this case's] resolution could provide the
beginning of an alternativeframeworkfor dealing with the
reconciliation of claims to constitutionally protected
aboriginal title and aboriginal rights, on the one hand, and
the public interest, both aboriginal and non-aboriginal, in
the elusive economic prosperity of the primary industries
of the province.
An interesting feature of the case, is that Weyerhauser (the
private company) had a fiduciary duty to consult with the Haida,
arising out of the fact that they were aware that the Haida had asserted
aboriginal title and interests in the area.
The decision that a private company owes fiduciary duties
to aboriginal peoples when they seek to develop or utilize lands
over which aboriginal title and rights are asserted raises some
interesting points. On the one hand, it raises the possibility that the
private companies will be more motivated to work with aboriginal
peoples, and to take concerns raised by aboriginal peoples seriously.
On the other hand, it raises the possibility that government may try
to off-load their fiduciary duties to aboriginal peoples onto private
companies in the future. Weyerhauser has since announced that it
intends to appeal the decision that it was under a fiduciary duty.

Osoyoos Indian Band v. Oliver (Town)
2001 SCC 85 (December, 2001)

Facts:
The Osoyoos Indian Band issued a property tax
assessment notice, pursuant to their s. 83 Indian Act taxation
bylaws, to the town of Oliver concerning a canal that intersected
their reserve lands. Oliver appealed the assessment and claimed
that the land on which the canal was situated was not "in the
reserve" for the purposes of the Indian Act and therefore could
not be taxed by the Band
The OIC defined the lands as a "rights-of-way" and reserved
interest in minerals in the lands to the federal government. The
lands were registered as fee simple lands, owned by the Province, in
1961. The town of Oliver has maintained and operated the canal,
although there was not formal lease or other arrangement between
Oliver and the Province.

Issues:
The Supreme Court was asked to decide two questions:
1.

Are lands, taken pursuant to s. 35 of the Indian Act, "land or
interests in land" in a reserve of a Band within the meaning of s.
83(1 )(a) of the Indian Act such that those lands are assessable
and taxable pursuant to the Band's taxation by-laws?

2.

If s. 3 5 of the Indian Act authorizes the removal of lands from
reserve status,doesfederalOrder in Council 1957-577, by which
the Lands were transferred, remove the Lands from reserve

status so that they are not assessable and taxable by the
Osoyoos Indian Band?

The decision:
The Court issued a split decision. The majority of the Justices
(McLachlin, C.J., and Iaccobucci, Binnie, Arbour and LeBell, JJ.)
found that the interest expropriated was not a complete interest,
and therefore the lands remained within the reserve and were subject
to the Band's taxation by-laws. The dissenting minority (L'HeureuxDube, Gonthier, Major and Bastarache, JJ.) felt that the effect of
the OIC was to remove the lands permanentlyfromthe reserve, and
therefore take them outside ofthe Band's ability to tax. The decisions
of the majority and minority are discussed below.
There are a number of interesting points which emerge from
the decision, and which will impact, both positively and negatively,
on aboriginal peoples when we seek to go before the Courts in order
to protect our interests in reserve lands:
1.
When Canada has made a decision to grant
an interest in reserve lands for a public purpose (i.e., utility
right-of-ways, highways, etc.) it will be a guiding principle
of the Court in looking at the document creating the interest
that Canada meant to impair the Indian interest in reserve
lands as minimally as possible. Thus, if an interest less
than a full fee simple interest could have served the purpose
(and the instrument does not explicitly list a full fee simple
interest) the Courts should assume that a lesser interest
was granted that would enable the Indian interest in their
reserve lands to subsist. This would, for example, support
the taxing jurisdiction of those Bands with taxation bylaws
in place.
2.
The Court made a distinction between
"aboriginal title" lands and reserve lands. Due to the
reasoning of the Court in Delgamuukw and Guerin,
Indigenous Peoples have argued that the Indian interest in
reserve lands and aboriginal title lands is similar, and binds
the Crown to the same fiduciary duty. Both the Majority
and Minority disagreed with this. The Majority agreed
that there is a "special (sui generis) interest" in reserve
lands, which engages thefiduciaryduty of Canada in dealing
with these lands, however they seem to suggest that the
fiduciary duty should be exercised differently according to
the different class of interest. The Minority felt that the
Indian interest in reserve lands was a creature of statute
(the Indian Act) and could be abrogated according to the
terms of the statute.
3.
Canada argued that it could not be bound to
exercise a full fiduciary duty in relation to a decision to
expropriate reserve lands, because it would be in a conflict
of interest between the duty it owes to the public and the
duty it owes to aboriginal peoples. The Majority rejected
this argument, but did so in a way which weakens the federal
fiduciary owed to aboriginal peoples. The Majority found
Legal Update (Continued on page 12)

11

Legal Update (Continued from page 11)
that there is a two-step process involved in making a
decision to expropriate reserve lands; the first step does
not engage the federal fiduciary, while the second step does.
The actual decision of whether or not to expropriate reserve
lands for a public purpose does not engage the federal
fiduciary (i.e., Canada is not bound to act according to its
fiduciary duty when it decides whether to expropriate an
interest in reserve lands), but once the decision is made,
Canada is bound to exercise its fiduciary duties when
deciding how to carry out the expropriation (i.e., to ensure
that the Indian interest is "minimally impaired" and
adequately compensated).
C a n a d a v.

Monias

Federal Court of Appeal, (July, 2001)
This case involved an appeal of employees of the Awasis
Agency of Northern Manitoba, a Native run corporation, which was
established to provide social services to children and families on
reserve. Awasis was created as a child caring agency under the
Manitoba Child Welfare Act and is funded by the federal government.
The purposes of Awasis are exclusively to provide child welfare
services, and they do so to a number of remote communities. Due
to the geography, the main office is located in a northern urban
centre, off-reserve. The annual meetings of the organization are
also held in main urban centres, outside of the reserves.
The employees' incomes were deemed "taxable" by the
Canada Customs and Revenue Agency (the " C C R A " ) , and not
subject to the Indian Act exemption, which applies to the property
of Indians situate on reserve. The bulk of the work of the employees
was done in Thompson (off-reserve) and they did not live on reserve.
Issue:
Is the income of the Awasis employees tax exempt for the
purposes of section 87 of the Indian Act, because it is
performed for the benefit of people living on reserves and
guided by reserve based communities?
Decision:
The Federal Court of Appeal found that the income of the
Awasis employees was taxable. In doing so, the Court ran through
the "connecting factors" test which was originally set out in the
Williams case in order to determine whether or not the income
involved could be considered to be "situated on the reserve. The
Federal Court of Appeal gave a restrictive reading to the tax
exemption contained within the Indian Act, and decided that it would
not allow the exemption in the case of the Awasis employees.
In recent years, there has been much taxation litigation as
Canada tries to restrict the interpretation of what income may be
considered to be tax exempt. Despite the "connecting factors" test

set out in Williams, in practice, the only income that has been
recognized (aside from a few specified cases) is income which is
geographically connected to, and performed on, the reserve. Monias
is one of a number of cases in which the employees have tried to
argue that the nature of their work (i.e., exclusively for the benefit
of on-reserve Indians) should be a relevant factor in determining
whether the work should be considered to be situate on reserve.
After Williams, the C C R A , issued Guidelines stating how it
would interpret the "connecting factors test" set out in Williams to
determine whether or not the employment income of an Indian should
be considered to be situate on the reserve, and therefore tax exempt.
Canada identified the following instances where it would hold that
the employment income was tax exempt:
1.
2.
3.

4.

The work was performed on a reserve.
The employer is resident on a reserve, and the Indian
employee lives on a reserve.
The employment duties are performed mainly on
reserve, and the employer is resident on reserve, or
the employee is resident on reserve.
The employer is resident on reserve, and is
(a)
An Indian Band;
(b)
A tribal council representing one or more
band;or
(c)
A n Indian organization controlled by one or
more such band or tribal councils, if the
organization is dedicated exclusively to the
social, cultural, educational or economic
development of Indians who for the most
part live on reserve, and the duties of the
employment are non-commercial activities
and are for the benefit of Indians who mostly
live on reserve.

The Crown, in the Awasis case, decided to discontinue its
appeals against those portions of the employees' work that was
actually located and performed on reserve (i.e., if an employee could
show that 25% of their employment was performed on reserve, the
Crown decided that it would agree with this proportional exemption)
because this was an exemption allowed in their Guidelines. The
Court suggested that it did not agree with this interpretation of the
Crown, and may not have allowed any of this income to be exempt
if it had been asked to issue a decision on this point.
The Court went beyond what it was asked to do by the
Crown, and suggested that it found C C R A ' s Guidelines to be too
permissive in finding an exemption. The Court of Appeal elected
not to apply Canada's Guidelines in deciding whether or not the
income was exempt, and reiterated that the purpose of the income
tax exemption contained in section 87 was not to afford Indian people
special status when they choose to enter the "commercial
mainstream", but rather:
.. .the more limited and specific purpose of section 87 is to
protect reserve lands, and Indians' personal property on a
reserve, from erosion, so that the Bands are able to sustain
themselves on the reserves as economic and social units.

Legal Update (Continued on page 13)
12

Legal Update (Continued from page 12)
Hence, it is fully consistent with legislative policy to apply
section 87 to income that is earned by Indians who reside

However, once all the connecting factors cease to be located
on a reserve, it quickly becomes difficult to link the policy
underlying the section 87 exemption to the factual context
in which a person acquired the employment income in
question. ... [T]o stretch the benefit of paragraph section
87(1 )(b) beyond its limited rationale would be likely to
produce incoherent and ad hoc decisions, [at paras 2324]
The Court considered a number of connecting factors, giving
a rather restrictive interpretation of each. While acknowledging
that these must be applied on a case-by-case basis, it emphasized
that the location of the employer "will generally be very important
in situating an Indian's employment income for the purposes of
section 87."
Nature of the employment: (location of the employment,
nature of employment services, surrounding circumstances). Here,
even though the work was done for the benefit of Indians living on
reserves, this was not determinative:
However, while the employees' work may help to maintain
and enhance the quality of life on the reserves for members
of the Bands living there, it does not necessarily connect
the acquisition or use of their employment income to the
reserve as physical locations, [at para. 46]
Location and Nature of the Employer: The Court of
Appeal decided that although the location of the employer is a
relevant factor they were unwilling to locate an employer on reserve
for "convenience's sake", and would examine the operations of the
employer and determine if they were really situate on reserve.
...in the absence of some evidence of the scope of the
employer's activities on the reserve, or some benefit flowing
to a reserve from the presence of the employer, it is not a
factor to which much weight is apt to be assigned. ...In
particular, an employer's location of convenience on a
reserve will do little to connect the employment income to
a reserve, [para. 50]
The Court considered the factors which connect the
employer to the reserve, including: they were established to provide
child services on reserve, its members and directors lived on reserve
for the most part, it was funded federally and created to serve the
reserve. Overall the Court of Appeal found that Awasis, as an agency,
had a "strong and unique" connection to the reserves, but nonetheless
went on to conclude that

the fact that Awasis does not conduct its business on a
reserve, and hence, apparently, provides no employment
opportunities on reserves, points to an off-reserve residency
on a reserve
fromthe
work
that is performed on a reserve.
and hence weakens the connection
between
employer
and the reserves for the purpose of determining the situs
of the respondent's employment income [at para. 55]
Despite that the Court of Appeal accepted that individuals
and families situated on reserve were the "immediate beneficiaries"
of the work performed by Awasis, the Court dismisses this as a
determining factor, saying that the fact that the work of Awasis
employees might "maintain and enhance" life on reserves for
members, "it does not necessarily connect" the employment of the
Awasis employees to the reserve. Reserves were looked at as a
"physical" location, and the fact that the work of the Awasis
employees benefited the reserve community was not seen as sufficient
to connect their work to the reserves for the purposes of drawing
the tax exemption.

Analysis:
The Manias case is troubling in many respects for aboriginal
organizations, because it reflects a trend on the part of the Federal
Court (both at Appeal and trial levels) to restrict the application of
the income tax exemption contained in section 87 of the Indian Act.
In particular, the reasoning of this case suggests that the Courts
take a very restrictive view of the connecting factors test (used to
determine if income or employment is sufficiently connected to the
reserve to draw the tax exemption), coming close to actually requiring
that the employment itself be performed on reserve. In this respect,
there are a number of questions raised which could impact the Union
of B.C. Indian Chiefs.
The Federal Court of Appeal seemed to suggest the
Guidelines which Canada follows in determining whether income is
tax exempt are too permissive, and that they would not necessarily
uphold them. The Union of B.C. Indian Chiefs' employees are
currently considered tax exempt on two basis under Guidelines 1
and 4.
Under Guideline 1, the "employer" is located on reserve,
as the UBCIC's head office is located on reserve, and a number of
operations crucial to the management and operation of the
organization are carried out on reserve. The Court of Appeal
suggested that the simple location of a head office on reserve might
not be sufficient to draw the tax exemption, and they would also
investigate where the actual work was performed. Thus, the Court
will be willing to examine if the head office is merely on the reserve
"for convenience's sake" (i.e., to draw the tax exemption).
The UBCIC's employees fall under Guideline Four (c)
which provides for an exemption for employees of:
An Indian organization controlled by one or more such
band or tribal councils, if the organization is dedicated
exclusively to the social, cultural, educational or economic

Legal Update (Continued on page 14)
13

Legal Update (Continued from page 13)
development of Indians who for the most part live on
reserve, and the duties of the employment are noncommercial activities and are for the benefit of Indians who
mostly live on reserve.
The Court of Appeal was willing, to some extent, to disregard
this Guideline, and suggested that even though the Awasis agency
was band-empowered, they would still require evidence that an actual
reserve benefited from the Agency, which would include the fact
that the agency provided employment or other financial benefits to
people living on the reserve (one factor which they considered was
the fact that the employees did not work on the reserve).

Rose Bear v. Canada (Attorney General)
Federal Court (November, 2001)
Bear brought a judicial review of the decision of the
Minister of National Revenue that she was not allowed to make
retroactive contributions to the Canada Pension Plan (the "CPP")
for the years 1966 to 1988. During this time, it was the practice of
Canada to not deem any employment of an Indian which was tax
exempt as "pensionable earnings" for the purposes of CPP
contributions. Thus, if an Indian's income was tax exempt, they
could not accrue CPP benefits relating to this amount.
Bear sued Canada claiming that these provisions were
discriminatory, and violated the equality provisions of section 15 of
the Canadian Charter of Rights and Freedoms and Section 1(b) of
the Canadian Bill of Rights. The Court decided that the Charter
could not retroactively apply, and so was not likely applicable in
this case. However, they did find that Canada's policy violated the
Bill of Rights, section 1(b) which prohibits discrimination on the
basis of race. Bear successfully sought an order from the Court
allowing her to make retroactive CPP contributions for all of the
years in which Canada had prohibited her from doing so.

Benoit v. Canada
(Federal Court - Trial Division) March, 2002
The Federal Court considered a taxation case brought by members
of Treaty 8, who claimed that Alberta and Canada violated the
provisions of Treaty 8 by assessing taxes against adherents to the
treaty. One of the main points of the case concerned the interpretation
of the Treaty 8 provisions. While not directly making Treaty 8
members tax exempt, there was supporting documentary and oral
history evidence which showed that the Indigenous peoples who
entered into the treaty understood that it would protect them from
taxation. Treaty 8 people relied on the argument that tax exemption
was contained as an "oral promise" of the treaty.
The Federal Court said that, while the Commissioners who made
the treaty might not have intended to grant a tax exemption, a tax
exemption was created if this was the honest belief and understanding
of the Indigenous Peoples who entered into the treaty:

14

The Court said it was important to look at the principles of
reconciliation in interpreting the terms of the treaty, and to assume
that both Canada and the Indigenous Peoples intended to negotiate
a successful treaty, stating:
In my opinion, according to law and in its own interests
and those of Treaty 8 Aboriginal People, Canada is required
to recognize and fulfill the tax assurance as it was
understood by the Aboriginal People in 1899. Accordingly,
as claimed by the Plaintiffs, I find that the Treaty term
found must be interpreted to provide to Aboriginal People
who are entitled to the benefits of Treaty 8, a treaty right
not to have any tax imposed upon them at any time for any
reason....[Nothing less will meet Canada's fiduciary
obligation to the Aboriginal People of Treaty 8.]
The Court concluded that members of Treaty 8 are immune from
taxation by Canada, and that this right has not been extinguished.
Thus, Canada has an obligation to honour and uphold this treaty
term, and any imposition of tax by Canada is an unjustified breach
of the Treaty 8 right.

Western Canada Wilderness Committee
condemns Treaty Referendum as being
immoral and a huge waste of time and
money
WCWC Director Joe Foy has delivered his ballot to the
Union of BC Indian Chiefs Office as a protest
"My wife and I had a lengthy conversation when the
ballots arrived at our house and we both decided that the best
way to register our opposition to the BC Treaty Referendum
was to deliver our ballots to an organization that represents
First Nations," explained Foy. "The Treaty Referendum is
designed to delay settlement of the BC land question. It is a
huge waste of time and money~and its immoral because it goes
after First Nation's rights,"said Foy.
At the Wilderness Committe's annual general meeting
held on October 13,2001, the membership unanimously passed
a resolution to oppose the BC Liberal government's initiative to
hold a province wide referendum on treaty negotiations.
Foy is urging all British Columbians to listen to what
First Nations are saying about the Treaty Referendum-then act
accordingly. There are a number of first nation web sites where
you can get good information about the treaty referendum on
treaty negotiations.
Contact: Joe Foy (604) 683-8220 or cell (604) 880-2580

Community Group Brings Art to
Anti-Referendum Efforts
An East Vancouver ad hoc neighbourhood group has
banded together to provide a creative outlet for widespread antireferendum sentiment. Neighbours Opposed to the Referendum
(NOT-R) is inviting the community to attend an "Art-In" where
people opposed to the referendum can decorate their ballots and
send a message to the B C Liberal Government.
Following each "Art-In" event, a merry "Parade of the
Decorated Ballots" will travel from the Britannia Centre to the
Vancouver Aboriginal Friendship Centre where Aboriginal Centre
representatives will accept the decorated ballots.
"We support the Aboriginal Friendship Centre's request
that people voting no deliver their ballots to them or to an
Aboriginal organization in their community," said Patty Moore,
N O T - R spokesperson.
According to Moore, the provincial Liberal government
is being profoundly discriminatory in requiring that First Nations
submit to a provincial referendum as a condition of enjoying their
constitutional rights. "We support First Nations' stand that this
referendum betrays a racist agenda," said Moore. "We join with
the many organization in B C that oppose the referendum. To their
shame, the Liberals have set a new standard for political
dishonesty and for the cynical misuse of voters and the
democratic process."
Contact: Patty Moore (604) 254-4810

Wildlife Act (Continuedfrompage 7)
effective in gathering public comments. The panels will begin
community consultations April 16 in the Baffin Region with the
first meeting being held in Iqaluit. Meetings begin April 18 in the
Kivalliq Region, and May 9 in the Kitikmeot Region.
Since February, the department's Wildlife Officers, working
with Hunters' and Trappers' Organizations, have been holding
discussions in communities to prepare residents for the panel
meetings.
In addition to the consultation meetings, a comprehensive
discussion paper in Inuktitut, Inuinnaqtun, English and French
will be circulated throughout Nunavut, and to interested parties
across Canada. A toll free phone number, a web site, and an email
address have been set up to ensure that everyone has the
opportunity to comment. Newspaper ads and community radio
programs will also be used to disseminate information throughout
the territory.
-30For further information, contact:
Stephen Pinksen
Senior Advisor, Legislation and Enforcement
Department of Sustainable Development
Tel 867-975-5900
Fax 867-975-5990

Filipinos in Vancouver Stand in
Solidarity with First Nations in
BC against Racist Referendum
Today Filipino community organizations stand in
solidarity with First Nations people of Canada and the Coast
Salish in B C , in denouncing the Native Rights Referendum as
against the interests of First Nations peoples and the people of
Canada. This action by the provincial government to bypass
unceded territorial claims is a calculated move by the provincial
government to strip ancestral land, resources and rights of the
First Nations people. The ancestral right of First Nation's people
in B C for control over their land and resources is part of the
global struggle for all indigenous people's around the world
against globalization.
The right of aboriginal people's claim to land is written in
their blood. Ancestral claims, that has withstood hundreds of
years of colonization and systemic racism. The provincial
government's referendum minimilizes the legitimate rights of First
Nations people in Canada by boiling down their ancestral rights
of self-determination and control of land and resources down to
an 8 question ballot.
In the Philippines, the indigenous people have faced the
same struggle against colonial forces and multinational
corporations for hundreds of years. The Cordillera people have
struggled militantly in response to the encroachment of Philippine
government land grabbing and multinational corporations'
mining the mountains they live in, contaminating the water they
drink, and patenting the food they eat. For the Cordillera people
and for the First Nations people of Canada, asserting their
ancestral rights land, resources and self-determination is a worldwide struggle of indigenous people against globalization.
As Filipino organizations we condemn the Native Rights
Referendum of the provincial government as racist. We stand
with the First Nations in continuing their continuing struggle for
their land and resources even as we also stand in solidarity with
all indigenous peoples of the world in their struggle against
globalization.
Boycott the Referendum!
Respect First Nations Land Claims!
Respect the rights of all indigenous people's to land, resources
and self-determination!
S I K L A B (Overseas Filipino Workers Organization), Ugnayan ng
Kabataang
Pilipino sa Canada / Filipino-Canadian Youth Alliance,
B C Committee for Human Rights in the Philippines
Filipino Nurses Support Group
Philippine Women Centre of B C

Interior Alliance
Haida Case: Where do we go now?
Consultation & Accommodation
T H I S P A P E R IS D E D I C A T E D T O T H E P E O P L E S A R R E S T E D
AT SKWELKWEK'WELT

The Court of Appeal for British Columbia in the "Council
of the Haida Nation and Guujaaw v. The Ministry of Forests and
the Attorney General of British Columbia and Weyerhaeuser
Company Limited" [2002] (Haida Case) made a very important
decision regarding consultation and accommodation of Aboriginal
Title and rights. This decision established an enforceable, legal
and equitable duty on the province of British Columbia and third
parties (businesses) to consult with indigenous peoples in good
faith and to endeavour to seek workable solutions between
aboriginal interests, on the one hand, and the short term and long
term objectives of the Crown and the third party on the other
hand. This decision does seriously challenge the political position
of the province that Aboriginal Title needed to be proved before
Aboriginal title would be considered in regard to land use
management.
It must be pointed out that all legal decisions have both a
legal, constitutional, economic and political interpretation. All
decisions normally have at least two different points of view that
normally flow from the two positions that made up the adversarial
arguments that were before the court. This means that after a
court makes a decision the opposition will try to narrowly
interpret the decision so that it does little or nothing to benefit the
other side. It is clear that the province have always tried to give
us little or no meaning to decisions that support Aboriginal rights.
It is clear that all legal decisions respecting Aboriginal title
have consequences that depend on our strategic response to a
particular decision. It is apparent that in the Geurin v. The Queen
[1984], R v. Sparrow [1990] Regina v. Van derPeet [1996],
Delgamuukw v British Columbia [ 1997] and Taku and Tlingit
First Nation v Ringstad [2002] have legal consequences on our
right to exercise Aboriginal Title. It is also clear that all these
decisions are precedents or are further legal decisions that give
expression to Aboriginal rights.
The Haida case clearly states that the provincial and
federal governments' political interpretation that Delgamuukw
only establishes Aboriginal title on a theoretical basis and really
didn't establish anything except that you need to go back to court
to prove title, is not entirely correct.
Chiefs, leaders and our experts need to be very careful
about accepting what the federal Department of Justice,
Department of Indian Affairs and the provincial Attorney General
provide as their political interpretation of an Aboriginal rights
decision. We must understand that the federal and provincial
government political interpretations are designed to maintain or
expand their jurisdiction under the Constitution of Canada.
Indeed any decision that expands our Aboriginal rights will be as
narrowly interpreted as possible. That is why politically chiefs,

16

leaders and our experts need firmly believe in our Aboriginal
rights in order not be caught having to re-think our position when
the Haida decision clearly reverses the self-serving logic of the
federal and provincial governments' political opinion.
In the Haida case the position of the Crown and
Wayerhaeuser are articulate in paragraph [9]: "The Crown and
Wayerhaeuser say that there is no obligation on the Crown or on
Weyerhaeuser to consult the Haida people about logging on the
Queen Charlotte Islands until the Haida people have obtained a
judgement of a court of competent jurisdiction declaring the
Aboriginal title and rights to the Haida people over Haida Gwaii
and demonstrating that the logging operations would be a prima
facie infringement of the Aboriginal Title or those aboriginal
rights."
This legal argument really just reflects the business-asusual approach of the provincial and federal governments and
third party interest toward our Aboriginal rights.
I feel that we will need to know how the provincial
government is going to respond to the Haida decision but this
does not mean that we cannot also start generating our own
interpretation of what this decision really means to us. In fact
until the BC Attorney General Geoff Plant has given thought to
what it means, it is premature to speculate what the implications
are. He of course is looking for solutions that will clearly keep
the BC industry proceeding according to his business-as-usual
strategy. I believe that our strategy will have to be to challenge
whatever kind of limp political strategy that he comes up with.
I firmly believe that the political failure to force the federal
government to develop a new Comprehensive Claims Policy
pursuant to the Delgamuukw decision resulted from a lack of
political pressure, because certain key indigenous leaders fell prey
to the trap of believing the Department of Justice opinion that
Delgamuukw did not establish Aboriginal Title on the ground. I
feel that the Haida case is our second chance to move Aboriginal
rights forward in a meaningful way, in terms of developing an
Aboriginal land rights policy that is based on the recognition of
Aboriginal Title and in terms of economic interests being
strategically redefined.
The Court of Appeal basically sets out an alternative
framework that speaks to the "reconciliation of the claims to
constitutionally protected Aboriginal Title and aboriginal rights,
on the one hand and public interest, both aboriginal and nonaboriginal, in the elusive economic prosperity of the primary
industries o the province on the other hand".
The courts could use the "interlocutory injunction
process" as "a valuable interim process for balancing competing
interests while litigation is pending. It provides a framework for
reconciling competing interests on the basis of standards which
can be used for weighing, on a preliminary basis, the validity of all
or some aspects of the claims to title and rights, and which can be
used for assessing the balance of convenience in the granting of
an interlocutory injunction over all or part of the area claimed and
in relation to some or all of the interests.
The importance of having an alternative framework is to
deal with Crown and third party activities that would basically

Interior Alliance (Continued on page 17)

Interior Alliance (Continued from page 16)
destroy Aboriginal rights like clear-cut logging. The Court of
Appeal does not however limit the alternative approach to merely
the interlocutory injunction process but also opens it up to any
"binding legal obligations" that are entered into before any
pending litigation or treaty settlement is made. The agreements
that would fall under this aspect of the alternative process would
all be discretionary agreements under existing provincial or
federal laws like protocol agreements specific business
investments, joint ventures and small timber licences. It would
therefore be necessary to identify these agreements because the
Crown and third party interests will use the agreements as
evidence that they have already met their duty on consultation and
accommodation.
The decision whether or not the Crown and third parties
have properly discharged their duty respecting consultation and
accommodation will include balancing the interests between
indigenous economic activities and indigenous traditional
activities. In particular analysis regarding this dichotomy of
interests should be done so that indigenous interests are
maximized to their fullest extent under this initial process. It is
clear however that all third party activities will primarily focus on
the impact they have on the activities of our traditional land users.
In this sense indigenous economic interests will become a matter
of consultation or accommodation.
Future processes regarding the duty of the Crown and
third parties must be based on involving Elders and traditional
land users. Their traditional knowledge and traditional activities
are the basis on which the economic activities of third parties need
to be measured. In the Haida case the Haida peoples were
concerned about the renewal and transfer of a Tree Farm Licence.
In our particular case we should look at the duty to enter into
good faith negotiations and accommodate indigenous interests to
be applicable to both the federal and provincial government.
It needs to be understood that the federal and provincial
government have bureaucracies and plans that manage lands and
resources throughout territories. These agencies and plans
involve economic schemes that support the interests of Canada
and British Columbia. The interests of indigenous peoples are
basically ignored or overridden by federal and provincial interests.
On the local, provincial, national and international level
Canadian governments strategically use a technical-procedural
management approach to have to avoid dealing with our inherent
rights. They try to eliminate any reference to Aboriginal title and
rights, because they enshrine our own indigenous jurisdiction that
they try to undermine at any costs. All management agreements
are to be signed under provincial authority and processes are used
to create dependency and engage our technicians and chiefs in
government dominated negotiation processes that aim to
extinguish our Aboriginal Title and rights.
The rights of indigenous peoples need to be included in
any Crown and third party activity in our watersheds that will
affect our traditional values and activities. In particular a
monitoring system needs to be established that will monitor the
impact that commercial values and activities have on our
traditional values and activities. It is clear that the negative

impact that has taken over the last hundred years has resulted in a
major problems like the present diabetes epidemic in our nation.
It is my position that the rampant exploitation of our traditional
territories is having a real physical impact on the lives and health
of Secwepemc peoples even leading to early deaths (very low
average life expectancy).
In this regard special attention should be directed toward
doing a "health impact assessment" in terms of measuring the
human cost of losing access to traditional foods in our diet. The
issues of human health and the environment have to be seen as
closely interlinked and connected. The Skwelkwek'welt
Protection Center near Sun Peaks is primarily opposed to the
expansion of Sun Peaks Ski Resort because of the impact it will
have on our environment and the habitat of the animals.
Increased tourism activities in the area will result in the curtailing
of traditional activities. In fact the present volume of tourists and
tour operations is already causing problems between commercial
tourism and traditional land use and occupancy activities. In
practical terms this will mean that traditional foods originating
from Skwelkwek'welt and contributing to Neskonlith kitchen
tables will be substantially reduced.
In addition research money has to be allocated to
researching the present level of traditional activities or
communities are engaged in. It is from this land use and
occupancy database that the actual impact of Crown and third
party activity will be measured against. Research in this respect
will have done the satisfaction of the Supreme Court of British
Columbia because this research would be essential in deciding
whether or not a business activity will potentially infringe on our
Aboriginal title and rights.
The Court of Appeal for British Columbia has established
prior informed consent as a duty on the provincial government
and third party interests. In fact the Court of Appeal found that
the Crown and Weyerhaeuser were in breach of an enforceable,
legal and equitable duty to consult and seek an accommodation
when matters respecting their Aboriginal title were being
considered. The Crown and third party interests need to
contemplate and meet with indigenous peoples to clearly get prior
informed consent in order to establish certainty and avoid
unnecessary and possibly prohibitive costs.
In conclusion it is clear that the Haida decision has
established a "duty" on the provincial and third party interests to
consult and accommodate our Aboriginal interests. This will
mean that they will need to come to some kind of terms that are
mutually acceptable. Therefore it is our responsibility to our
peoples to demand from government and industry to be dealt with
in good faith in order to achieve certainty. It will require a high
degree of political will on our part to get the federal and
provincial governments to realize that the business as usual
approach will not work. In the final analysis what we get from
the governments and industry will reflect our political
determination to stand up for our rights as expressed in the Haida
decision.

17

SKWELKWEK'WELT MEETS INTERNATIONAL HUMAN AND INDIGENOUS
RIGHTS MONITORS
(March 20,2002) Skwelkwek'welt Protection Center
Number 6 has been set up at the entrance of Sun Peaks Ski Resort
to protect Aboriginal Title and ensure the accommodation of
indigenous interests. The recent Haida decision of the BC Court
of Appeal clearly established the requirement of consultation of
Aboriginal people prior to developments on their traditional lands
and of accommodation of their interests. No steps in that
direction were ever taken by Sun Peaks Ski Resort who
unilaterally proceeded with its expansion plans despite the explicit
opposition of Secwepemc land users and youth.
Instead of respecting the recent court decision Sun Peaks
issued a letter calling for the immediate removal of
Skwelkwek'welt Protection Center because they "have not
communicated with the corporation about your activities or
received our approval to carry them out". The Secwepemc
denounced this request as a mockery of the Haida decision,
which requires Sun Peaks to consult the Secwepemc in a letter
addressed to Masayoshi Ohkubo.
In the letter the Secwepemc also made it very clear:
We put you on notice that we dispute the legality and validity of
the present Master Plan and interests in land granted under it, and
assert that you must consult with the Secwepemc people to
accommodate our Rights regarding any further development. We
urge you to immediately reverse your decision and align it with
recent court decisions.
In case Sun Peaks and the provincial government want to
again go against the courts and act to remove Skwelkwek'welt
Protection Center Number 5 and 6, the Secwepemc have
established a network of support and humanrightsobservation
groups and monitors who have been placed on alert. A number of
them amongst them the Mennonite Central Committee, Christian
Peacemaker Teams, Canada-Columbia Solidarity Campaign, and
Sami delegates from Samiland. (Sapmi). These groups visited
Skwelkwek'welt this week to meet with Secwepemc and devise
plans for training for human rights monitors to be sent to the area
and support peace-building efforts. These efforts are urgently
needed in the light of on-going police intimidation and harassment
of the Secwepemc. Doug Pritchard of Christian Peacemaker
Team said, "We have worked in many aboriginal communities and
we call upon all Canadians to respect the rights of their Aboriginal
neighbors".
Sophie Aikio from Samiland stated, "the Secwepemc are
facing the same concerns as indigenous peoples all over the
world. Whatever happens in Canada affects us as well.
Indigenous peoples throughout the world are following the
situation of the Secwepemc in Canada"
Despite the concentrated efforts of the BC Government,
Sun Peaks Corporation, and the RCMP to forcibly remove and
displace the Secwepemc from their lands, the Secwepemc will
continue to occupy and use their traditional lands in
Skwelkwekwelt and other areas within their traditional territory
such as the Upper Adams where Interior holds an
illegal forest license.

18

March 15, 2002

Mr. Masayoshi Ohkubo
Sun Peaks Ski Resort/Nippon Cable
Dear Mr. Ohkubo,
In reference to your letter dated March 7, 2002 to occupants of
the Skwelkwekwelt Protection Center, we remind you that we have
evidence of our Aboriginal Title and Rights to the area you are
referring to - Controlled Recreation Agreement area adjacent to
Sun Peaks utility and maintenance infrastructure. We delivered to
the Province a Traditional Use Study ("TUS"), which is only
partially reflective of how we exercised ourrightson the land. We
enclose an affidavit prepared by Dr. Elias, which was filed in
recent Court proceedings and which establishes a strong prima
facie case of our Aboriginal Title and Aboriginal Rights.
The Secwepemc people have never given their consent
and approval of your Master Plan. We have not even been
consulted about this Master Plan; nor did the Government or Sun
Peaks make any effort to accommodate our Rights. We have
never approved the present development or the proposed
expansion plans of your resort. The Master Plan and Sun
Peaks' developments pursuant to the Master Plan infringes on
our Secwepemc Title and Rights. Our Elders, whom we take
direction from, make it very clear that they want all proposed
development outlined in the Master Plan stopped immediately.
Sun Peaks Corporation has not displayed any good faith
to negotiate or accommodate with us as evidenced in Darcy
Alexander's letter ofMarch 7th, 2002.
Our Secwepemc people have never given up our inherent
rights to traditional territories and we have maintained our
obligations to protect them. The Supreme Court of Canada
recognized Aboriginal Title in the 1997 Delgamuukw decision.
Two recent decisions of our B.C. Court of Appeal, including The
Haida Nation and Guujaaw v. Minister of Forests and
Weyerhauser, makes it very clear that Aboriginal peoples must be
consulted prior to development on their lands and that their
interests have to be accommodated even before Aboriginal Tide
has been proven in the courts. Therefore, Sun Peaks and the
Province should have consulted with the Secwepemc people
regarding the development of Sun Peaks Resort to accommodate
our interests. To date, no such steps have taken place. In fact,
our Aboriginal Title and Rights have been completely ignored
in the past. One example is the trenching of the road to Mt.
Morrisey which infringes on our Aboriginal rights in this area.

Ohkubo Letter (Continued on page 19)

Ohkubo Letter (Continued from page 18)
A second decision, Taku River v. Ringstad, also decided
that consultation to accommodate is a constitutional requirement
before a tenure is issued. In the Taku case, the tenure was
quashed; in the Haida decision, the Court stated that there was a
clear breach of duty when the tenure was issued, and ordered the
Company and the Government to engage in Court-supervised,
good-faith negotiations to create an accommodation with the
quashing of the tenure as a possible outcome.
These decisions clearly put in question the legality of
your Master Plan and opens it up for review. We have conducted
Traditional and current-use studies over the Skwelkwekwelt area.
Sun Peaks Resort has chosen not to consult with us and consider
our interests, which have repeatedly brought to your attention. It
is not the Secwepemc who have to consult with Sun Peaks on
how and where we exercise our Aboriginal Rights and Title. Your
tenure is now open to challenge, and based on the recent Court
cases, is not legal as it presently stands.
We have living Elders who possess knowledge of our
traditional activities, including our laws and uses of the land at
Skwelkwekwelt. These Elders will testify in court and provide
evidence of our Title and Rights in this area.
The arrogance displayed by Darcy Alexander in the letter
dated March 7, 2002 dishonours the courts whose decisions your
company, too, must respect. You are willfully breaching your
obligation to accommodate Secwepemc interests.
We put you on notice that we dispute the legality and
validity of the present Master Plan and interests in land granted
under it, and assert that you must consult with the Secwepemc
people to accommodate our Rights regarding any further
development. We urge you to immediately reverse your decision
and align it with recent court decisions. In the event you choose
not to, we will take further action.

NATIVES UPRISE A T SUN PEAKS RESORT
WARRIORS, NATIVE Y O U T H AND ELDERS
DEMAND SUN PEAKS " L E A V E OUR MOUNTAIN"

"This Is Our Land - Unceded Sovereign
Secwepemc Territory."

(Skwelkwek'welt (Sun Peaks), Secwepemc Territory/
March 23, 2002) Saturday, March 23, 2002 at 12:00pm Native
warriors, youth and Elders uprise at the Sun Peaks Resort.
Natives will gather all weekend at the newly established
Skwelkwek'welt Protection Centre #6, at the entrance to the Sun
Peaks Resort and on Saturday will uprise against Sun Peaks and
declare "no more conducting business-as-usual."
This month Sun Peaks has ordered and demanded Natives
to leave our homes and Skwelkwek'welt Protection Centre at
Skwelkwek'welt or they will take further action. Sun Peaks
delivered this notice accompanied by the Royal Canadian
Mounted Police (RCMP) who held a gun to a Native youths
head. This "No Indians Allowed" policy by Sun Peaks just proves
that they are continuing their "Genocidal Regime." Sun Peaks
has proven to us what they are capable of when on December 10,
2001 Sun Peaks employees gleefully bulldozed down and
destroyed two permanent homes and two of our sacred
sweatlodges, which left Native youth and babies homeless during
the winter in their own Homeland.
These acts of GENOCIDE by Sun Peaks and the
government will not be tolerated. Secwepemc Elders have stated
to our People that they want Sun Peaks off our mountain

Yours truly,
Janice Billy, Spokesperson
c.c Chief Ron Jules, Adams Lake Band
Chief Arthur Manuel, Neskonlith Band
Chief Felix Arnouse, Little Shuswap Band
Chief Stewart Phillip, Union of BC Indian Chiefs
Chief Matthew Coon Come, Assembly of First Nations
Secwepemc Chiefs
Louise Mandell, QC
Inspector Sam MacLoed
Premier Gordon Campbell
Attorney General Geoff Plant
Indian Affairs Minister Nault
International Support Groups

completely and out of our Territory. It is now time to take our
lives and future of our mountains-Skwelkwek'welt into our own
hands. Sun Peaks Resort Corporation will face the economic
hardships of waging war on the Indigenous Peoples of this Land
and Sun Peaks will not win. "We will uprise! The uprising will
continue!"
Media Contact:
Native Youth Movement
Nicole or Akila c(250)371-0361 h(250)679-3413

19

Assembly of Nova Scotia Chiefs Support
Appeal to the Supreme Court of Canada
HALIFAX, March 15 /CNW/ - The Assembly of Nova Scotia
Chiefs today announced that it has filed leave to appeal the Nova
Scotia Court of Appeal(equal sign)s decision in R v. Bernard to
the Supreme Court of Canada. At issue is the fundamental right of
Aboriginal people to hunt for food using lights.
"This is not a decision that affects one Mi'kmaq person in
Nova Scotia. The decision in R v. Bernard has the potential to
affect all Aboriginal people in Canada. It strikes at a basic
constitutional right - the methods that may be used to hunt for
food. The basic Aboriginalrightof the Mi'kmaq to harvest for
food has been affirmed by the Nova Scotia courts a number of
times, including by the Court of Appeal here," says Bruce H.
Wildsmith, Q.C., legal counsel for the Assembly. "But now the
Court has prevented the Mi'kmaq from using a controversial, but
efficient and effective hunting method."
"Preventing Aboriginal peoples from hunting for food with a
light, whether using torches, bonfires, flashlights or high-intensity
beams, limits their ability to provide food for their families," notes
Mr. Wildsmith. "Night hunting using fire, torches and other
sources of light source has been part of the Mi'kmaq culture for
centuries."
On January 16, 2002, the Nova Scotia Court of Appeal set
aside the decision of the Supreme Court of Nova Scotia and
found Allison Bernard, Jr., guilty of using a light to hunt. He was
scouting for game, intending to return the next morning to track
any animals seen. The Appeal Court determined that using a light
to search for deer at night was unsafe and that the Province,
therefore, could properly prohibit this method of exercising
Aboriginalrightsin the interests of safety.
"Safety is one issue," says Mr. Wildsmith, "but Mr. Bernard
was not charged with hunting unsafely. If he had been, there are a
number of other charges the Crown could have laid. Many people
believe, and other courts have held, that the reasons hunting with
a light is prohibited are to promote hunting as a sport and to make
a successful hunt more difficult as a conservation measure. The
Mi'kmaq leaders recognize that their people cannot hunt in a
manner that jeopardizes the safety of other people. But the
important question here is whether the prohibition on lights is
purely about safety, or has other objectives. The Supreme Court
of Canada has consistently said the Crown must justify its
limitations on Aboriginal harvesting methods, such as the use of
lights. It is important to all Aboriginal people in Canada to resolve
once and for all whether constitutionalrightsholders many
harvest using lights."
The Assembly of Nova Scotia Chiefs is a deliberative body for
the thirteen (13) Mi'kmaq Chiefs in Nova Scotia. It is supported
by two tribal councils: the Union of Nova Scotia Indians
("UNSI") and the Confederacy of Mainland Mi'kmaq ("CMM").
The UNSI represents seven bands in Nova Scotia. The C M M
represent six bands in the province: There are approximately
10,000 Mi'kmaq in Nova Scotia.
-30-

20

Poll Commissioned by Dudley George family says
Ontarians wantIpperwashprobe
Tuesday March 19,2002, 6:13 P M EST TORONTO (CP)-Most
Ontario residents believe Premier Mike Harris or his successor
should call a public inquiry into the police killing of native
protester Dudley George, suggests a new poll commissioned by
members of George's family.
The poll, released Tuesday,finds72 per cent want an
inquiry into George's death at Ipperwash provincial park in
September 1995. Asked whether they agreed the provincial
government under Harris or his successor should call an inquiry,
almost half of those said they "strongly" agreed they should.
Even among Tory supporters, almost two-thirds
responding to the Oraclepoll Research survey agreed that an
inquiry should be called. "We want the people of Ontario to know
that we really, really appreciate their willingness to listen to us,"
said Maynard (Sam) George, Dudley's brother.
"There are millions of Ontarians out there who believe that
they have to find a decent way and a fair way to sort things out."
Harris, whose successor will be chosen on the weekend, has
steadfastly refused to call a probe in light of an ongoing lawsuit
filed by George and four other relatives of the dead man.
However, the plaintiffs have repeatedly offered to drop the
wrongful death suit in exchange for an inquiry.
The suit alleges that Harris played a role in a police
decision to march on the occupied park in southwestern Ontario
to evict a few dozen unarmed protesters.
During an ensuing fracas, a provincial police officer shot
and killed George. Harris met with senior police officers in the
hours before the shooting but has always denied any role in the
events. He has launched a libel lawsuit against the Globe and Mail
for suggesting otherwise.
"I don't know what to think of that one," said George of
the Globe lawsuit. A spokesman for Attorney General David
Young said Tuesday that a public inquiry is not necessary.
"There is an independent judicial process underway that is
considering the same questions that any public inquiry would
consider," said Mark Gollom, referring to the George family
lawsuit.
The poll, which the George family paid for by taking out a
loan, also suggests that almost half of those surveyed believe
Harris has refused an inquiry because he and other senior cabinet
ministers are afraid of what it might reveal about their actions.
"He doesn't want to let the people know that the
government may be involved in the death of our brother," said
George.
In addition, almost a third of those polled believe the
provincial government was responsible for George's death.
Despite asking the five leadership candidates vying to
replace Harris about their views on an inquiry, none of them have
replied, said George, who said he remains hopeful an inquiry will
eventually be called. The poll questioned 1,025 Ontario residents
across the province at the end of last month.
A poll of this size is said to be accurate within 2.9
percentage points 19 times out of 20.

Four Yukon First Nations successfully
conclude their land claim negotiations
WHITEHORSE, YK, April 1 /CNW/ - Minister of Indian Affairs
and Northern Development Robert D. Nault today applauded
and welcomed the successful conclusion of Carcross/Tagish,
Kluane, Kwanlin Dun and White River First Nations' land claim
talks.
Negotiators for the four First Nations, the Government of
Yukon and the Government of Canada signed individual
Memorandums of Understanding officially concluding
negotiations.
"This is a landmark achievement for First Nation citizens and
the Yukon. The Carcross/Tagish, Kluane, Kwanlin Dun and White
River First Nations have shown that through resolve and
perseverance, we can all work together to reach positive and
equitable outcomes," Minister Nault said. "I look forward to
endorsing the Memorandums of Understanding with the
four First Nation Chiefs and the Yukon Premier to confirm our
commitment to complete the necessary work and proceed with
the ratification process," said Minister Nault. "The completion of
agreements with the Ross River Dena Council and the Liard First
Nation in mid-April will mean that the Indian Act will no longer
apply in the Yukon Territory when all the final and self
government agreements take effect in 2003."
The Government of Canada provided a 12-month extension to
its mandate to complete the technical and legal drafting of the
four agreements along with their ratification by all parties by
March 2003.
Under their Final and Self-Government Agreements, the four
First Nations will retain roughly 4,000 square kilometres of land
and receive some $77 million, adjusted for inflation, over the next
15 years.
The Carcross/Tagish, Kluane, Kwanlin Dun and White River
First Nations will also benefit from the federal government's
Strategic Economic Development Investment Fund. They will
receive over $18 million for economic development, training and
education projects.
The Ross River Dena Council and the Liard First Nation will
resume their six days of negotiations early this month. These six
days were deferred as an expression of respect for the grieving
family of the Kaska chief negotiator.

Referendum Note: Participating in the
referendum will only serve to legitimize
Premier Campbell's goals and aspirations
when dealing with First Nations.

Native American Activist Files Lawsuit
Against FBI
Former FBI Director Louis Freeh is named as a defendant in
a lawsuit filed today by attorneys for imprisoned Native American
activist, Leonard Peltier. Freeh, along with the FBI Agents
Association and a long list of active FBI agents, are accused of
violating Peltier's Constitutional rights by making false and
unsupported statements to the public, the Department of Justice,
the United States Parole Commission, and former President
Clinton. The complaint, filed in U.S. District Court, Washington
D.C., alleges that the FBI "engaged in a systematic, and officially
sanctioned campaign of mis-information and dis-information"
designed to prevent Peltier from receiving fair clemency and
parole reviews.
The suit follows a highly controversial campaign
conducted by the FBI to stop former president Bill Clinton from
issuing Peltier a grant of executive clemency during his last days
in office. FBI agents across the nation submitted letters to the
editor, sponsored major newspaper and radio ads, and marched by
the hundreds in front of the White House to discourage clemency.
Former FBI Director Louis Freeh wrote searing letters to Bill
Clinton and Janet Reno, to urge against Peltier's release. The
campaign, which gained national attention, characterized Peltier
as a cold-blooded killer who brutally shot two FBI agents at point
blank range. Peltier's attorneys and supporters assert that this
characterization is not only false but intentionally deceptive
given the government's long held position that it cannot prove
who shot the agents. Furthermore, they say it cost Peltier, now
57 years of age and in poor health, his long deserved freedom.
Peltier has served more than 26 years in prison for the
deaths of two FBI agents killed in a 1975 shoot-out on the Pine
Ridge Indian Reservation. Peltier's supporters claim the FBI
terrorized witnesses, utilized false testimony and withheld a
ballistic test proving Peltier's innocence to gain his conviction.
Senior Eighth Circuit Judge Gerald Heaney, who denied Peltier a
new trial based on a legal technicality, has since come forward to
support Peltier's release, citing FBI misconduct. Amnesty
International, the Kennedy Memorial Center for Human Rights,
Rev. Jesse Jackson, Rigoberta Menchu Turn, Archbishop
Desmond Tutu, Corretta Scott King, and scores of Native tribes
are among those who consider Peltier a political prisoner who
should be freed.
(Complaint will be posted on LPDC web site on April 4:
www.freepeltier.org . Interviews with lawyer handling case and
spokespeople for the LPDC can be arranged).
Until Freedom Is Won!
The New Peltier Justice Campaign
Leonard Peltier Defense Committee
PO Box 583
Lawrence, KS 66044
785-842-5774
www.freepeltier. org

21

Campbell's Referendum Folly
Hasn't a Legal Leg to Stand On
The provincial Liberal are reviewing their list of
questions for the promised referendum on treaty negotiations but
that doesn't alter the fact that the plan is ill-conceived, divisive
and would ultimately be a meaningless waste of the taxpayers'
money.
Soldiering on with this misguided idea may play well
with those who are ignorant of the treaty-making process, but
anyone who has taken the trouble to read what the courts have
been saying for the past 20 years knows that a referendum will
accomplish nothing useful.
All the forcing of a referendum will do is reinforce the
growing feeling that British Columbia is now in the hands of
willful know-nothings and incompetents. It will further shred the
province's already tattered credibility with First Nations while
poisoning the atmosphere for resource companies attempting to
do future business in B.C.
The most devastating deconstruction of this referendum
nonsense comes from Louise Mandell, the aboriginalrightslawyer
who recently gave the province and timber giant Weyerhaeuser
such a legal drubbing in a Queen Charlotte Islands court case it
prompted the Haida to launch their dramatic suit claiming the
islands and surrounding seabed.
Mandell recently did a legal analysis of Premier Gordon
Campbell's referendum and its initial slate of 16 questions, now
trimmed to a less cumbersome eight. They show, however, no
corresponding reduction in the failure of understanding what they
symbolize. About two weeks ago she delivered a brief to the
Union of B.C. Indian Chiefs that dispassionately dissects this
whole Liberal referendum notion, clause by painful clause.
Campbell's referendum mania now appears to have
seized his caucus like some bizarre obsessive compulsive disorder.
It threatens to needlessly launch the province on a course that
claims to address matters that are, in fact, outside the province's
constitutional jurisdiction.
And if the referendum is to be used to frame B.C.'s
position in treaty negotiations, as Campbell suggests, it will
expose the taxpayers to costly court cases for years and perhaps
generations to come.
Mandell lists a number of areas in which the province
seeks a mandate from the voters to negotiate but where it, in fact,
has no power to act. These include matters of aboriginal title,
self-government and the signing of treaties required to empower
First Nations governments and to lift the legal burden of
aboriginal title from the Crown.
First, there is the matter of aboriginal title itself, a right
which predates the existence of B.C. and can be removed only by
the process of signing a treaty that sets out the legal terms of a
new relationship between the holders of that title and the federal
Crown.
Only Canada may conclude a treaty with a First Nation.
The provincial government may be permitted to be a party to the
negotiations, as has been the case so far, but the treaty-making
power remains exclusive to the federal government.

22

Second, Mandell points out, the province has no power
to legislate in relation to native Indians and lands reserved for
them.
This power, too is assigned exclusively to Canada by the
Constitution. This means that in constitutional law the province
has no power to unilaterally define or to extinguish aboriginal
rights - including hunting and fishing rights and aboriginal title in relation to land.
Third, there is a special constitutional relationship
between First Nations and the Crown. It is defined by the
Supreme Court of Canada as a fiduciary relationship, which
means that government must treat aboriginal peoples and their
lands differently from other Canadians.
For example, the Crown is required to protect the
aboriginal right of occupation and to ensure a fair process if First
nations landrightsare surrendered.
This, Mandell notes, is because of the legal nature of the
native interest in land which, unlike other tenures, is inalienable,
except to the Crown. The Supreme Court has ruled that the
nature of this relationship between Canada and aboriginals is
"trust like, rather than adversarial" and the provincial
government's power is limited by the requirements in law that it
not be permitted to act in fashion contrary to this fiduciary
relationship.
Finally, the province is profoundly limited in its power by
Section 35 of the Constitution which entrenches and affirms
aboriginalrightsand makes First Nations founding partners in
Canada. Their laws have become part of our law.
The brief then goes on to address, one by one, the
assumptions inherent in the questions initially proposed by the
government's referendum committee.
For example, the province has said it seeks a mandate
from the voters to negotiate municipal-style governments for
aboriginal groups. Mandell says that while the province has the
power to legislate municipal governments anywhere it likes, it has
absolutely no jurisdiction to define an aboriginal government or
interfere with aboriginal lands.
Furthermore, she observes, the province has already lost
a crucial court case on this issue and the courts affirmed, "the
continuation of a right of self-government in aboriginal peoples,
who were recognized as political communities, whose law-making
powers could not be illegally intruded upon. Instructions to the
province to butt out don't get much clearer than that.
Another problematic issue is the matter of the Campbell
Liberals wanting a guarantee that local governments can sit at
future treaty tables. Mandell points out that First Nations have
borrowed heavily against their future settlements to pursue treaty
claims under a process that was agreed upon following trilateral
negotiations between B.C., Canada and aboriginal groups. The
committee that set up the treaty process specifically excluded
third parties from the table.
Suddenly contravening that agreement without consent
from First Nations could prove an expensive decision, Mandell
says, because it would hand First Nations a strong legal case for
refusing to pay back the tens of millions borrowed to finance their
participation.
Referendum (Continued on page 23)

Referendum (Continued from page 22)
There isn't room here to go into detail of this methodical
flaying of Campbell's Referendum Folly, but if you want to read
the whole fascinating thing yourself it is posted on the Union of
B.C. Indian Chiefs Website at www.ubcic.bc.ca/referendum.htm.
Meanwhile if Campbell wanted to do something really
useful, he'd convene a summit of all the chiefs in B.C., sit with the
Legislature, respectfully ask for their views on what's necessary
to restart the treaty process, request that they politely hear his
concerns and then listen for a change instead of trying to impose
19 century ideas on a 21 century problem.
(As printed in the Vancouver Sun - March 14 , 2002)
th

st

th

BC NDP URGES SUPPORTERS TO B O Y C O T T
REFERENDUM
(April 3,2002) The British Columbia New Democratic
Party is asking its supporters across the province to boycott the
referendum on treaty negotiations now in the mail.
The announcement was made last night during a provincewide teleconference meeting of the Party's Provincial Council
delegates and constituency association representatives.
"There should be no referendum on minority rights," said
Party President Maura Parte. "It's a waste of money at a time
when the Liberals are crying poor, and instead of bringing British
Columbians together it's going to drive us apart."
"B.C.'s economy is hurting," said Parte. "Our rural
communities have already been hit hard enough - the last thing
they need is the conflict and uncertainty that this referendum will
bring."
"Only fair and honourable treaties with B.C.'s First
Nations can provide the reconciliation, the social justice and the
economic opportunity our province so desperately seeks."
"Aboriginal British Columbians are asking their fellow
citizens to show their support for the treaty process by abstaining
from participation in the referendum. The B.C. NDP is supporting
that call. We are urging our members and supporters to boycott
the referendum."
Provincial Secretary Ed Lavalle explained why the Party is
not advocating spoiling ballots.
"Aboriginal representatives see the referendum as
fundamentally unconstitutional and disrespectful," said Lavalle.
"While they have suggested negotiation and reconciliation, the
government has responded with questions which impose
preconditions on the whole process."
"The aboriginal community feels that returning spoiled or
blank ballots helps validate the referendum because it's a form of
participation."
Lavalle added that the referendum questions are so
ambiguous that there's no clear way to reject the premises of the
referendum by voting no.
"No matter how the questions are answered, the Liberal
government gets the answers it wants. That's why we're asking
supporters to simply boycott the ballot by just throwing it away or
giving it to local organizations who may be collecting unused
ballots to show solidarity with First Nations."

Referendum Questions Seek Mandate
To Perpetuate Same Outdated Colonial
Relationship
(Vancouver, Coast Salish Territory/March 13,2002) "As
First Nations, we have a unique constitutional relationship with
the Provincial and Federal governments. The referendum
questions presented today demonstrate a complete and utter
disregard and denial of our constitutional relationship." Chief
Stewart Phillip, President of the Union of British Columbia
Indian Chiefs (UBCIC), responded today to the tabling of the
referendum questions in the provincial legislation by the
Attorney General Geoff Plant.
"Our relationship with the Province of British Columbia
and Government of Canada is founded and based upon our
constitutionally enshrined title and rights. The fact that our
jurisdictional relationship is being clarified through the courts
rather than good faith negotiations is a direct consequence of the
longstanding adversarial approach undertaken by both the
Provincial and Federal Government vis-a-vis their collaborative
refusal to recognize our aboriginal title and rights." Chief Phillip
went on to state, "The non-recognition of title and rights is a
fundamental and fatal flaw of the current treaty process and is the
primary reason why more than 30% of First Nation communities in
BC have not entered the process. UBCIC represents First Nation
communities who have not entered the current British Columbia
Treaty Commission process. The combined landmass of the
member communities represents more than 30% of the province.
The provincial referendum will only serve to accelerate the
ongoing and ultimate demise of the existing treaty process."
In an effort to educate the general public about the
complexity and long history of the fiduciary obligations of the
Province and Canada, which are grounded in the Constitution of
Canada, UBCIC asked aboriginal rights lawyer Louise Mandell to
do a legal analysis of the proposed referendum questions put
forward by the Select Standing Committee on Aboriginal Affairs.
The main point of the analysis is that the Province lacks the
jurisdictional authority to undertake or implement the results
of the referendum.
Chief Phillip concluded "When read in light of the recent
court decisions of Taku River Tlingit and the Haida, the Mandell
Analysis clearly shows that the province does not have the
power to proceed unilaterally with any attempt to implement the
results of the referendum. Clearly, the referendum questions seek
a self-serving mandate to perpetuate an outdated, economically
racist and colonial relationship, of which many features have
been repudiated by the Courts. By refusing to adequately
consult and to enter into good faith negotiations, the province
has only left many First Nation communities two choices to
defend our title and rights, enter the courts or prepare for a
protracted campaign of confrontation vis-a-vis land-use
conflict arising as a consequence of accelerated resource
development
activities."
1

23

Research Update

Canada's Proposed Specific
Claims Process Raises Concerns

We would like to thank those bands that sent in BCRs and
letters supporting the UBCIC Research Program. The Research

The Government of Canada appears poised to move forward

Funding Division (RFD), DIAND, asks for this information as a

on controversial changes to the specific claims process. John Hall,

condition of funding. R F D funding enables us to continue to

the B C representative of the Specific Claims Branch (SCB), expects

undertake free research and legal analysis of specific claims on behalf

legislative changes to the specific claims process to take effect in

of B C bands.

the spring or fall of 2003.

U B C I C research staff attended the Chiefs Committee on
Claims meeting in Vancouver on February 13 and 14, 2002. The
focus of the meeting was the government's proposed Independent
Claims Body (ICB). Our article below entitled Canada's Proposed
Specific Claims Process Raises Concerns provides an overview of
the latest information relating to ICB. Staff also attended meetings
in January 2002 to find solutions to the difficulties encountered

The specific claims process has failed to address Canada's
outstanding legal obligations to First Nations. The SCB processes
approximately 14 claims per year; however, many new claims are
filed each year, adding to the present backlog of over 550 claims.
As the chart below illustrates the vast majority of claims currently
under review or in negotiation originate from B C . Some of these

trying to access M i n i s t r y of Transportation and Highways

claims have been in the system since the 1970s. The majority of

documents which have become very expensive to acquire. At the

backlogged claims have been fully researched and accepted by the

January Chiefs Council meeting we provided a review of those

SCB, but stall at the point of negotiation with the Department of

meetings. Below in an article entitled My Way or the Highway:

Justice. Increasingly, the SCB is unable to reply to inquiries made

Issues Pertaining

by Mandell Pinder about when decisions on claims might be rendered.

to Road Rights-of-Way,

we provide more

background information on matters pertaining to road rights-of-way
that cross reserve lands. Staff also attended a workshop relating to
the current Freedom of Information initiatives. U B C I C Research
will be hosting a meeting with other B C lands rights researchers this
spring to share our experience and learn from others. We hope that
working together with other researchers will help to advance land
rights research at the regional and national levels.
Below is an outline of the progress U B C I C has made toward
completing the outstanding specific claims research on our work
plan.

*Source: INAC National Mini Summary, Specific Claims Branch, Reporting Period 1970/04/01-2001/09/30
While the highest number of specific claims in the current system originate from B C , as the chart below illustrates, in terms of
settlement awards, B C lags behind.

24

•
•
•
•

The federal government alone will appoint persons to
the ICB.
The $5 million cap will indeed be imposed and include
legal fees and interest.
The Tribunal will award money, not land, as compensation.
A claim will have to be ratified by the band community prior to being heard by the Tribunal, a time-consuming and expensive process not required under current regulations.

A F N legal counsel argues, "The limitations and qualifications that have been imposed on the JTF model in the federal proposal make it a step backwards for First Nations. Rather than eliminating the conflict of interest, it will increase it. Instead of making
*Source: Minister Robert Nault, Renewing Treaties,
the claims process more fair, effective and efficient, it may add a
Claims and Self-Government Negotiation Processes to new layer of bureaucracy to the process."
Support a "Quality ofLife " Agenda
With the budget for settlements fixed at $75 million per year,
no significant increase in funds for researching claims, and negotiaIn 1996, a Joint Task Force (JTF) comprised of federal
tion funds increasing only $3 million, Chiefs wonder how the govtechnicians developed detailed recommendations for overhauling
ernment believes ICB can fulfill the objective of alleviating the backthe specific claims process. JTF argued for the need for an
log of claims and creating a more just claims process. The Chiefs
Independent Claims Body (ICB) to address the inherent conflict of
Committee on Claims rejected the counterproposal calling for a reinterest and systemic backlog of the current claims process. To
turn to the JTF principles. Since the February meeting, the Naprovide an incentive for settlement, JTF recommended that the ICB
tional Chief and Chair of the Chiefs Committee on Claims have atinclude a Commission to facilitate negotiations and a Tribunal with
tempted to meet with the Minister to discuss the matter with no
the legislative authority to create legally binding settlements. The
success.
JTF interim report tabled in November 1998 did not accommodate
More concerns about the government's attitude towards the
all First Nations concerns, nor did it address all concerns of federal
specific claims process have arisen from statements made by M i n officials and legal representatives. Nevertheless the A F N
ister Nault in a February 2002 presentation to the Reference Group
Confederacy of Nations and the Chiefs in Assembly adopted the
of Ministers on Aboriginal Policy. Instead of speaking about speJTF recommendations in good faith.
cific claims resolution properly as a legal responsibility, the MinisThe federal government tabled a counterproposal to the JTF
ter characterized it as an opportunity for the government to carry
eighteen months later, in M a y 2000. Although the government
out an "economic development" strategy for First Nations. The
adopted certain recommendations, including the Commission and
Minister asked if the specific claims process might benefit by addTribunal format, key JFT principles were altered. First Nations are
ing a focus on development. He stated: "Can and should we imparticularly concerned about a $5 million limit placed on the
pose more requirements on how First Nations use the proceeds of
settlement value of a claim which could be heard by the Tribunal
settlements? Should we manage processes to optimize needed ecofor it deviated so far from the core JTF principle that all claims
nomic development outcomes e.g. give priority to resolving claims
must be treated equally. Questions were also raised about policy
based on need or economic development opportunities available to
procedures and appointment processes because it was unclear how
First Nations? Can we turn the $2.1 billion liability to First Nations
ICB was going to incorporate new case law and be independent
for claims in our current inventory into a driver of economic develwhen the government had the final say over appointment processes.
opment?"
First Nations were also concerned with the quality of consultation,
Minister Nault also suggested that Canada is considering
as the government had withdrawn from the fruitful exchanges typical
rolling back previous decisions that progressively expanded the
of the JTF.
narrow definition of what constitutes a specific claim: "The 1991
After a prolonged period of silence, the Government of
decision to accept pre-Confederation claims produced historically
Canada answered some First Nations questions in a February 11,
and legally complex and expensive claims without general federal2002 letter from Minister Robert Nault. A t their February 13 and
provincial agreements on costs." He also hints that the door might
14,2002 meeting, the Chiefs Committee on Claims expressed great
be closing on the processing of new claims in favour of an excludisappointment with the statements contained in the Minister's
sive emphasis on the backlog: "Should we and can we suspend out
letter. The letter implied that despite First Nations' clear opposicurrent research funding to focus on the existing backlog of action the government's ICB counterproposal would remain and dicepted claims and increase settlement funds to reduce the backvert even further from JTF recommendations. The letter noted:
log?"
R e s e a r c h U p d a t e (Continued on page 26)

25

Research Update (Continued from page 25)
UBCIC continues to support initiatives to encourage the
government to return to the Joint Task Force recommendations.

My Way or the Highway: Issues
Pertaining to Road Rights-ofWay
There are a series of legal documents that have served as
significant obstacles to First Nations interests in road rights-of-way
on reserve lands. The province typically bases its claim to road
rights-of-way upon four different legally binding documents outlined below:
•

In 1911, the B C government published a public notice in
the B C Gazette announcing that roads in the unorganized
areas of B C were deemed to have a width of 66 feet.

•

The Federal Privy Council Order-in-Council 208 issued in
1930 provided for the transfer of remaining federal land in
the Railway Belt and the Peace River Block back to the
provincial government. The Order-in-Council stipulated
that all traveled streets, roads, trails and highways running through reserves are to remain provincial land and
that an additional five percent of reserve land can be taken
if needed for provincial public works.

•

Provincial Order-in-Council 1036, dated 29 July 1938,
which formally conveyed all Indian reserves in the province to the Dominion government. This order provided
that "all traveled streets, roads, trails, and other highways
existing over or through said lands at the date hereof shall
be excepted from this grant." It also provides for the resumption of up to five percent of reserve land for provincial public works. The exception is the Railway Belt and
Peace River block lands that were conveyed in 1930 under PCOC 208.

•

Section 4 of the Highways Act provides that roads where
public money has been spent are deemed public highways.
The Ministry typically uses highways maintenance records,
detailing expenditures of public monies on the roads to
claim their interest in the road.

Recent court decisions may challenge some of these legal
instruments. The Osoyoos v. Oliver ruling stated that Canada cannot
extinguish a reserve interest in land without demonstrating a clear
and plain interest to do so. In their December 2001 summary of the
decision Mandell Pinder noted:

26

The approach of the Supreme Court of Canada is to
find a way for the Indian interest and the public interest in the reserve to co-exist. The fact that reserve lands may be needed for public purposes does
not trump the Indian interest. This is in line with the
reconciliation approach, which the Court articulated
in Delgamuukw....When the public interest is involved, instead of the fiduciary obligations of the
Crown being diminished (as Canada has argued),
the fiduciary obligations are amplified
First
Nations will want to review the history of "takings"
of their land for the use by public utilities. The
Osoyoos case now clears the way to examine these
interests with the distinct possibility that these lands
are still in the reserve and continue to belong to the
First Nation.
Two other cases currently before the Supreme court of
Canada. Roberts v. Canada and Ross River Dena Council v.
Canada also have implications for road rights-of-way through reserve lands because both cases challenge the conventional understanding of what is required to create a reserve. The Roberts case
may offer a reinterpretation of OC 1036 and Ross River addresses
the question of what right the province had to assert powers of
resumption in 1938. These cases could test the unilateral undertaking of roadwork, road widening, and re-routing of roads through
reserve lands.
While the courts reinterpret the legality of roads through
reserve lands, one band has decided to take matters into their own
hands. The Okanagan Indian Band has recently challenged the
Ministry of Transportation and Highways (MoTH) claim to a 10kilometer section of road called Westside, running through reserve
lands south of Vernon. The Band is requiring commercial vehicles
traveling through the reserve to acquire permits and display stickers. In an interview in The Penticton Herald on February 8,2002,
Chief Dan Wilson notes: "Westside Road was constructed on our
Indian Trail used by our ancestors for centuries," Wilson said. "The
governments of Canada and B C have acknowledged in writing that
more recent changes to Westside Road's alignment have clearly
placed this road on our reserve land." The Okanagan Indian Band
initiative sends a clear message to government and the public that
the traditional approach towards the roads which run through reserve land is not acceptable.
Please feel free to contact Jackie, Jody, Robyn or Arlette at
UBCIC Research (604 684 0231) if you have any questions about
the issues raised above, i f you require further information or would
like to discuss current, past, or future specific claims.

Softwood Lumber Negotiations Must
Address Aboriginal Title and Rights
"Civil Disobedience" Very Real Possibility
(Coast Salish Territory/Vancouver, February 13,2002) The
recently leaked B C Ministry of Forests' proposal for "an
immediate reduction" of opportunities for First Nations tenure is
totally unacceptable, and will only serve to increase tensions not
only with First Nations but also with Canada's biggest trading
partner, as indicated by testimony today before the US Senate
Finance Committee on US-Canada softwood negotiations.
"There is every indication that a resolution to the softwood
lumber dispute will not be possible without a significant take-back
of tenure from the major forestry companies," says Chief Stewart
Phillip. "We have an opportunity here to begin to meaningfully
address Aboriginal Title and Rights. The question is whether the
Ministry of Forests will take advantage of this opportunity for real
change, or simply further entrench the status quo."
Diversification of the actors who control forest tenure and
wood processing is an important underpinning in order to
establish competitive markets for logs in B C . To date, changes to
tenure and pricing of wood proposed by the Ministry of Forests
only enhance the rights held by existing corporate tenure holders,
allowing them greater flexibility and increasing the value of their
tenures, while reducing opportunities for First Nations and small
business owners. A leaked Ministry of Forests document
anticipates increased civil disobedience as a result.
"There is another solution," says Chief Stewart Phillip.
"Redistribution of tenure, and the creation of log markets with a
significant amount of wood flowing through them would create
new opportunities for First Nations and for all communities, as
well as for value-added ventures, while going a long way towards
resolving the softwood lumber dispute."
The Union of British Columbia Indian Chiefs, along with
92 other First Nations and non-governmental organisations sent a
letter today to US Special Ambassador Marc Racicot affirming
that the key elements of a framework for a negotiated softwood
solution must include recognition of Aboriginal Title,
environmental sustainability, tenure reallocation, pricing reforms
and strengthening raw log export restrictions.
"First Nation communities are becoming all the more
desperate and the processes the government have offered to deal
with that situation, such as the B C Treaty Commission process,
have proved to be woefully inadequate in spite of best efforts
from the First Nations' side of the table. There is no question
frustrations are growing. Rather than being in a position of
addressing this, the provincial government seems to be
marginalizing our communities even further. As frustrations
grow, the likelihood of 'civil disobedience' becomes all the more
real."
-30-

Union of British Columbia Indian Chiefs
Supports the Osoyoos Indian Band
(Vancouver, Coast Salish Territory/March 19,2002) "Forest
companies like Weyerhaeuser and the provincial government
through the Ministry of Forests must fully accommodate
Aboriginal Title interests when they contemplate timber
allocations. Today's blockade is only a warning shot of what
promises to be a protracted engagement of the Osoyoos Indian
Band with Weyerhaeuser and the Ministry of Forests." Chief
Stewart Phillip spoke from the blockade today at Weyerhaeuser's
Okanagan Falls mill.
Today's blockade is to support the Osoyoos Indian Band's
efforts to access sufficient timber supply for their band-owned and
band-operated sawmill.
The blockade was manned with 80 people from the Osoyoos
Indian Band, the Okanagan Nation Alliance and the Union of
British Columbia Indian Chiefs.
"The Osoyoos Indian Band has been a patient and willing
participant of discussions with the Ministry of Forests and
Weyerhaeuser but are now incredibly frustrated as these
discussions have yielded no results. Both the Ministry of Forests
and Weyerhaeuser must be reminded that our
Aboriginal Title is constitutionally affirmed and protected.
When the lack of results is taken into context of court decisions
like Delgamuuk'w, Taku River Tlingit and the most recent Haida
decision, it is understandable why the Osoyoos Indian Band
cannot tolerate the shameless approach of the Ministry of Forests
and Weyerhaeuser and be forced to respond with direct action."
"Weyerhaeuser and the Ministry of Forests must respond in a
significant manner to immediately address the issue of timber
allocations." Chief Phillip concluded, "It is becoming all the more
apparent that direct actions, like today's blockade, will play out
time and time again throughout this province as long as the
provincial government and third parties refuse to fully
accommodate our Aboriginal Title and Rights."
-30FOR M O R E I N F O R M A T I O N C O N T A C T :
Chief Stewart Phillip Office: (604) 684-0231
President, Union of British Columbia Indian Chiefs

Send in Your Unmarked Referendum Ballot to
the UBCIC Vancouver Office:
5th Floor - 342 Water Street
Vancouver, B C .
V 6 B 1B6

27

Eager Appetites for Oil and Gas
Provincial Government Must Address
Treaty 8 Concerns

Letter to Treaty 8 Tribal Association
January 16th, 2002

(Vancouver, Coast Salish Territory/January 16th, 2002)
Chief Stewart Phillip reacted with great disappointment to today's
failure of the provincial government to listen to the legitimate
concerns of the Treaty 8 communities. "The Treaty 8
communities are under immense pressure to protect their
traditional lands from the eager appetites of oil and gas
corporations and the revenue starved provincial government.
Treaty 8 was signed as a treaty of peace and co-existence but it
appears that the provincial government views the treaty as
nothing more than an afterthought."
The communities of Treaty 8, Blueberry River First
Nation, Doig River First Nation, Fort Nelson First Nation,
Halfway River First Nation and the Saulteau First Nation, have
stated their willingness to enter into a bi-lateral process. The
process would have served as a framework for timely
consultations on potential infringements of the oil and gas sector
activity on their treaty rights. After months of provincial
government inaction, the communities appear resigned that this
opportunity of a mutually beneficial process has passed.
Though the provincial government earns approximately 2
billion dollars in oil and gas revenue every year from the Peace
River region, the communities of Treaty 8 receive absolutely
nothing in the form of royalties and/or compensation. Chief
Phillip expressed alarm that the provincial government is
contemplating expanding oil and gas exploration in the region and
stated "It is inexcusable for the provincial government to dismiss
constitutionally protected treaty rights to fast-track an initiative
that would see a five-fold increase in drilling while First Nations
pay the social and environmental costs" Chief Phillip said.
Chief Phillip fully supports the efforts of the communities
of Treaty 8 to ensure that their constitutionally protected rights
are respected. Chief Phillip concluded "The provincial
government must not only consider the effects of their decisions
and policies on the health of the individual and on the
environment but must reconcile Treaty Rights and Aboriginal Title
of First Nations."

Dear Chief Logan:
I am writing to commend and support your recent public
statement to the Cabinet of the Government of the Province of
British Columbia. In addition, the Provincial Cabinet should
have, as a common courtesy, provided an opportunity on their
agenda to hear a formal presentation of the concerns of the Treaty
8 Tribal Association.
We were shocked and appalled by the Provincial Cabinet's
flagrant breach of protocol in relation to the recent Cabinet
meeting, which was held in Fort St. John. Certainly, fundamental
common sense should have directed the Cabinet to formally invite
your Chiefs to make the appropriate arrangements to conduct the
opening ceremonies for their meeting.
A s First Nations of this country, we enjoy distinct
aboriginal rights that are enshrined in the Constitution of Canada.
Further, the Supreme Court of Canada, which represents the
highest judicial authority, in this country, has consistently upheld
and reaffirmed our rights. Consequently, our relationship with all
other levels of government must be on a government-togovernment basis. We are not stakeholders! Delgamuuk'w clearly
states that within our proprietary interest there resides an
undeniable economic component. In short, we have every right
to expect to benefit from the natural resources within our
territories.
Successful and productive development of the oil and gas
resources in your territories shall depend on the Government of
British Columbia's active commitment to enter into "good faith"
negotiations with the communities represented by your Treaty 8
Tribal Association. Disrespectful breaches of protocol and
dismissive attitudes are not conducive to creating the political
climate necessary to reconcile Aboriginal and Crown interests in
the Province of British Columbia. In closing, we wish you well in
your efforts to establish a bi-lateral process of reconciliation.
Yours truly,
Chief Stewart Phillip, President
Union of B C Indian Chiefs

FOR M O R E I N F O R M A T I O N C O N T A C T :
Chief Stewart Phillip Cell: (250) 490-5314
President
Union of British Columbia Indian Chiefs

28

Referendum Note: Voting N O is problematic because the questions are so ambigous that
the Liberal Governmnet can interprete the
answers to reflect their political goals.

Reflections from the Land of the Great
White Cloud - Former UBCIC Employee
Recounts Experience in New Zealand
By Angie Shuter
Kia tu pu, kia hua, kia puawai.
Strive, prosper, grow - wonderful words to live by
don't you think? If only it were as easy to achieve. A s I sit
in an office over 11,000 km from home I realize that I have
at the very least begun the journey.
Approximately five months ago I left my job with the
U B C I C Research Department, gave up my apartment in the
West End, packed a suitcase full of belongings and said
goodbye to family and friends. I decided to give up the
familiar and comfortable and take off for the unknown which in this case just happened to be an internship in New
Zealand. I was not just leaving my country but was also
putting my research career on hold as I decided to explore
a whole new discipline. I accepted a placement as a
policy analyst with the Cultural Heritage and Indigenous
Issues Unit at Te Puni Kokiri (the Ministry of Maori Development) in Wellington, New Zealand. Suddenly, I found
myself thrust into the world of intellectual property and
working for an organization very different from UBCIC.
The six-month internship placement was sponsored
by the Department of Foreign Affairs and International
Trade (DFAIT) as part of the Youth International Internship
Program (YIIP) designed to give Canadians up to the age
of 30 the opportunity to gain international work experience.
My placement was organized by the Pacific Peoples'
Partnership of Victoria, B C . I was one of ten candidates
selected to take part in the 2001-2002 program and one of
four sent to New Zealand.
I wish I could say that I embraced this experience
without any fear or doubts. I wanted to. I thought that I
could. I just had not anticipated that it would be so hard to
strive, prosper and grow without your family and friends by
your side. Nonetheless, as time went by, I realized that
even though I was out of my element and learning an
entirely new field of study in an entirely different country well, I realized that I had been given a remarkable opportunity and had better make the best of it.
A s I near the end of my internship placement I look
back on what I have learned. I have traveled throughout
the country meeting people and seeing places that I hadn't
even imagined existed. I learned about the relationship
between the Maori people and the New Zealand government. I learned about the struggle to revive a language
and the pride of those who help it grow. I've seen health
centers that deal with chronic diabetes as we do and talked
with healers who have managed to incorporate both
traditional and mainstream methods of healing. I've meet
students that are learning the kapa haka - their traditional
and contemporary dances and I have found a nation whose
songs unite them. I've seen tribes that are working on

settling their outstanding treaty issues and the birth of new
means to protect their traditional knowledge. I have met
some of the greatest minds in Maoridom - the artists, the
writers, the politicians, the leaders. Families have opened
their homes to me and I have met some of the nicest
people.
I am both looking forward to reuniting with family and
friends and regretting the fact that I have to leave this
beautiful country. However, whatever the future holds I will
look back on my time here with fondness and remember
that there is a whole new world to explore if you open your
mind. Kia tu pu, kia hua, kia puawai. Strive, prosper, grow.
You will not regret it.
********************
Information of the Youth International Internship Program (YIIP) is
available on the web (http://www.dfait-maeci.gc.ca/enqlish/culture/
vouth/intern/aqp0621e.htnn ). DFAIT sponsors over 400 internships a
year in over a hundred countries. The Pacific Peoples' Partnership
(www.sppf.org) is currently making arrangement for the 2002 - 2003
internship placements. If you have any questions about the program,
contact Angie at [email protected].

Weisgerber Appointed to
BC Treaty Commission
Former native affairs minister Jack Weisgerber has been
appointed to represent the province on the British Columbia
Treaty Commission, a neutral body that oversees the treaty
process.
Weisgerber became the first minister of native affairs in
British Columbia in 1988. He was instrumental in forming the
Premier's Council on Native Affairs, which recommended an
aboriginal land claims task force be established. The task
force's report led to he creation of the British Columbia
Treaty Commission.
The principals of the British Columbia treaty process are
the First Nations Summit, the government of British Columbia
and the government of Canada. The treaty commission has five
members: a full-time chief commissioner chosen by the
principals for three years; two commissioners selected by the
First Nations Summit; a commissioner appointed by
Canada; and a commissioner appointed by B . C . The four
part-time commissioners are appointed to two-year terms.
B C . ' s position on the commission has been vacant since
Kathleen Keating stepped down. Weisgerber also serves on
the B C Hydro board of directors.

The UBCIC will still be accepting
unmarked referendum ballots after
May 15th, 2002
29

Send your
ballot to
First Nations Summit
208-1999 Marine Drive
North Vancouver B C V7P 3J3
Union of BC Indian Chiefs
5th floor 342 Water Street
Vancouver B C V6B 1B6

Take it to a
location
near you

United Native Nations
110-425 Carrall Street
Vancouver B C V6B 6E3

First
Nations
Summit

Union of
BC Indian
Chiefs

United
Native
Nations



Union of B.C. Indian Chiefs

NEWSLETTER

Spring 2002
Special Edition

UBCIC Launches Referendum Campaign
The UBCIC is encouraging native and non-native voters to show their opposition to the bogus
treaty referendum process by participating in an "active boycott".
A growing coalition has been the referendum. The process only selves
formed consisting of the UBCIC, First to vilify our efforts to reconcile our
Nations S u m m i t , U n i t e d N a t i v e Aboriginal Title and Rights with the
Nations, political, labour, church and Province of British Columbia and the
concerned citizens to strategize over the Government o f Canada."
best course of action to take in response
"This referendum will form the
to the treaty referendum that has begun foundation of aboriginal policy in B C .
distribution on April 2,2002.
We have to show and demonstrate that
On April 4 , 2002, Chairs from there are many reasonable fair-minded
16 Tribal Councils from across the British Columbians that don't support
province held a press conference to this very shallow and narrow-minded
officially mark the beginning of a series approach," concluded the President
of active boycotts to the rejection of
"This government does not know
the treaty referendum. Following the what it has unleashed in this province,"
press conference the leadership gathered said C h i e f Judith Sayers o f the
outside and held a one time "bunting of Hupacasath First Nation. "People are
ballots" as a symbol of their opposition expressing anger and frustration to this
to Gordon Campbells latest sham.
province. The dark cloud that has been
hovering
over the treaty process that has
Silently boycotting the treaty
Assembly
referendum is not enough. Ballots that been acknowledged by justices in this
are recorded as spoiled or rejected will province has become even blacker,"
only serve to legitimize and fullfill the continued Erickson.
a s p i r a t i o n s o f the B C Government.
Debbie Jeffrey, President of the
The questions are so ambigous that Tsimshian Tribal Council said this
even a N O vote becomes problematic.
referendum will turn back the clock on
An active boycott w i l l demonstrate the relationship building we have
that organizations, minority groups, and worked so hard on over the years and
a large contingent o f citizens in this will promote volatile incidents."
province are in solidarity with first
REFERENDUM (Continued on page 3)
nations people in B C . In addition, we
see the ill-fated referendum process as
blatant racism when majority dictates
the further v i o l a t i o n o f our basic
human fundamental rights.
Chief Stewart Phillip, President of
the UBCIC commented, "Today was the
first of many events where people from
across the province will actively boycott
th

20.

INSIDE THIS E D I T I O N . . .
2. Message from the President
4. Haida v. BC and Wayerhaeuser
5. UBCIC Press Release ~ Haida v.
BC and Wayerhaeuser
6. Fish Farms
7. New Wildlife Act
8. UBCIC Joint Policy Council
9. First Nations Governance Initiative
10. UBCIC Legal Update
16. Interior Alliance: Haida Case~
Where Do We Go Now?
18. Skwelkwek'welt
19. Native Youth Movement's Press
Release
of Manitoba Chiefs
Support Appeal to S.C.C.
21. Four Yukon First Nations
Succesfully Conclude Land
Claim Negotiations
22. Campbell's Referendum Folly
Hasn't Got a Leg to Stand On
23. UBCIC Press Release ~
Referendum
24. UBCIC Research Update
27. UBCIC Press Releases:
-Softwood Lumber
-Osoyoos Indian Band
28. UBCIC Press Release ~ Treaty 8
29. Reflections from the Land of the
Great White Cloud

1

Message From the President
As the treaty referendum ballots lands on
the doorsteps of voters in B C there are
other evils larking in
the wings that are also
preying on first nations people. This
time it not only affects our nations in
B C but our brothers
and sisters r i g h t
across Canada. Let
Chief Stewart Phillip, Okanagan
me once again introduce the First Nations Governance Act Initiative presented
by yours truly Indian Affairs Minister Robert Nault.
During the course of 2001, a series of meetings were
held in Vancouver, Winnipeg and Ottawa to address serious
concerns being tabled by the Minister that threaten our inherent right of self-determination. What the Minister is proposing is potential modifications (tinkering) to the Indian Act
and to the Corbiere Decision by the Supreme Court o f
Canada. Modifications that would only serve to 'limit and
monitor' the way first nations people conduct their business.
In April 2001, Minister Nault attempted to launch a national
consultative initiative with First Nations communities and leaders. The consultation process that took place through the
fall, was labeled as designed to incorporate both traditional
means and the latest technology. Innovations included the
use of an interactive Web site, a 1-800 number and an extensive publicity program designed to reach all First Nation community members regardless of locale.
By December 2001, Minister Nault could only acclaim
for a handful of support by first nation communities, and as
expected stated that he intends to ignore the majority decision of the democratically elected leadership of First Nations
across Canada. Nault also was reported to saying, "I think
it's high time that the A.F.N, restructure itself so it can work
with the government of Canada.
During the A F N Confederacy meeting in Ottawa resolutions were passed by the leadership expressing their outright rejection to the proposed First Nations Governance initiative. In addition through resolution tire assembly also called
for Minister Nault's resignation due to his arrogant, confrontational and disrespectful attitude and his divide and conquer
approach.
UBCIC members joined with others to form the "First
Nations Coaltion for Inherent Rights" which was instrumental in striking down the proposed F N G initiave.

2

So with the numbers being so one sided to kill the F N G
initiative, why won't it go away?
It won't go away because Nault is still insisting on proceeding with the F N G initiative in a clumsy effort to rapidly
offload their fiduciary obligations.
I now understand that the first draft of the F N G initiative will be introduced in Parliament in May. I am working
with the Coalition for Inherent Rights to develop strategies
against the bill. The strategies include media, political lobbying, litigation and direct action.
The message we will state is that we find the F N G
unacceptable as it undermines our Aboriginal Title and Rights
and we will tell Nault that:
•
We have a Nation-to-Nation relationship with
Canada that has been constitutionally enshrined and
judicially recognized.
• The federal government approach is unlawful,
violates the Constitution and will be successfully challenged in the court.
• Passing the F N G would increase economic uncertainty.
•
The F N G reduces the federal governments responsibility to First Nations without granting us the
capacity to deal with our communities.
•
Whatever changes are required to the Indian Act,
a unilateral action by the federal government is not
the way to go.
•
The unilateral process of the F N G failed to take
into account the legitimate First Nation leadership.
• The Government of Canada cannot unilaterally
act in any way to diminish or alter our Aboriginal Title
and Rights without the full participation of, consultation with and consent of First Nations.
We will be presenting more details of the strategies
at the next Chiefs Council meeting. If you have any questions regarding the F N G you can contact Don Bain at the
Vancouver office at (604) 684-0231.

REFERENDUM (Continued from page 1)
"Flash Gordon will have us all eating Campbells
Soup after this referendum because that is all we will be
able to afford stated Chief Dan Wilson of the Okanagan
Nation Alliance. "This referendum w i l l attract more
international sanctions against the British Columbia
economy and,will put thousands of people out of work, and
this is a real black eye on the international stage for B C . "
Chief Allen Weselowski of the Carrier Chilcoltin
Tribal Council said, "We are on aboriginal land and the
treaty hasn't been answered in this province. The people
of British Columbia are being asked to vote on an issue
they don't have information about. That does not show
strong leadership in this province."
"Whose next?" asked Mavis Erickson. "Our rights
are being placed on the table by the referendum and no one
else in this country has been subjected to that before. Will it
be woman's rights, the mentally incompetent or other
minorities? That is what British Columbians have to ask
themselves when they receive their ballots."
The Anglican Church has publicly delivered a
pastoral letter to their 200 churches during a Sunday
Service advising their membership to vote no i f they decide
to participate with the referendum. Citing the reconciliation
with first nations people has a long way to go and this
process is a step in the wrong direction to achieve that.
Aboriginal organizations are being swamped with
calls from non-native supporters asking die question of
what to do with their ballots?

The Union of B C Indian Chiefs is encouraging
all native and non-native voters to forward
their unmarked ballots only to our Vancouver
Office at: Union of B C Indian Chiefs
5th Floor - 342 Water Street
Vancouver, B C .
V6B 1B6

Your Unmaked Referendum Ballot can be
Dropped off at any of the following
Referendum Collection Site Locations.
UBCIC Vancouver Office (604) 684-0231
UBCIC Kamloops Office (250) 828-0319
Songhees First Nation, Victoria, (250) 386-1043
Hupacasath First Nation, Port Alberni, (250) 724-4041
First Nations Summit, Vancouver, (604) 990-9939
Britannia Center, Vancouver
Okanagan Indian Band, Vernon (250) 542-4328
Boothroyd Indian Band, Boston Bar, (250) 457-9624
Shuswap Nation Tribal Council, Kamloops,
(250)828-9789
Carrier Sekani Tribal Council, Prince George
(250) 562-6279
If any o f the above treaty referendum collection sites are
not in your area contact your nearest local band office or
native organization for clarification. You could also contact
the U B C I C Vancouver office for assistance.

List of other Endorsers on the Boycott
• BC Coaltion of Women's Centres
• BC Federation of Labour
• BC Human Rights Coalition
• BCGEU
• Canadian Muslim Federation
• College Institute Educators Association
• Council for Senior Citizen's Organizations
• Father Jim Roberts, Roman Catholic Church
• Office & Professional Employees Union Local #378

The Coalition will be strategizing over the next couple of
weeks as to the best course o f action to take with the
collected and counted ballots. Detailed information will be
released once it becomes available. More referendum
information can be found on our Website at:

www.ubcic.bc.ca

• Paul Winn, QC, Immigration/Refugee Lawyer
• Society Promoting Environmental Conservation
• Suzuki Foundation
• Vancouver Status of Women
• Western Canada Wilderness Committee
• Filipino Community Organizations

3

Environment-Aboriginal Guardianship
Through Law and Education

>

The claims to the Haida people to Aboriginal title and
Aboriginal rights were supported by a good prima facia case
in relation to all or some significance part of the area covered
by T F L 39 and Block 6.
"

Haida Nation v. B C and Weyerhaeuser. 2002
In a unanimous decision of the British Columbia Court of
appeal in Haida v. Ministry of Forests, 2002 B C C A 147, released
on February 27, 2002, the Court confirmed that there is a
constitutional duty to consult and to accommodate Aboriginal
rights and title prior to a judicial determination regarding the
existence, nature and scope of those rights. British Columbia is
not entitled to proceed with business as usual while the treaty
process drags on, as the following quote from the court's decision
demonstrates:
The issue is an important one. If the Crown can ignore
or override Aboriginal title or Aboriginal rights until such
time as the title or rights are confirmed by treaty or by
judgement of a competent court, then by placing
impediments on the treaty process the Crown can force
every claimant of Aboriginal title or rights into court and
on to judgement before conceding that any effective
recognition should be given to the claimed Aboriginal
title or rights, even on an interim basis.
The case, brought by E A G L E on behalf of the Council of
the Haida Nation, involved a judicial review application by the
Council of the Haida Nation, in which the Haida sought to
overturn the decisions of the Minister of Forests to replace Tree
Farm Licence 39, a portion of which is located in Haida Gwaii.
The Court held that the Crown is under a constitutional
obligation to consult with Aboriginal people who claim title and
rights, before a court decision on the existence and scope of those
rights. The Court decided that the obligation to consult is about
accommodation. Accommodation extends to "both the cultural
interests and the economic interests of the Haida people."
The Court held that the province, and in this case
Weyerhaeuser (the licencee), had an obligation to consult the
Haida about accommodating their aboriginal title and aboriginal
rights when they were considering the replacement of the licence.
The obligation, in this case, arose from the following
circumstances:
>

The Provincial Crown had fiduciary obligations of utmost
good faith to the Haida people with respect to the Haida
claims to Aboriginal title and Aboriginal rights;

>

The Provincial Crown and Wayerhaeuser were aware of the
Haida claims to Aboriginal title and Aboriginal rights over all
or at least some significant part of the area covered by T.F.L.
39 and Block 6, through evidence supplied to them by the
Haida and through further evidence available to them on
reasonable inquiry, an inquiry which they were obliged to
make; and

4

The Court concluded that, while there is always an
enforceable, legal duty to consult and to seek an accommodation,
the strength of the obligation to seek an accommodation
proportional to the strength, or potential soundness, of the
Aboriginal title and rights claim. Where the case for Aboriginal
title and rights is strong, and the infringement likely, as in this
case, the obligation to reach an agreement is at its highest.
With respect to remedy, the Court held that the remedy
should protect the interests of all parties pending a final
determination. The Court therefore chose not to quash the
licence, though it commented that litigation in which Aboriginal
title and rights, and their infringements are established, could
result in the licence being held to be invalid or void. The court
left open the possibility of determining the validity of the licence
as an interim matter as well. In the meantime, the Court held that
the duty to consult to accommodation began before the licence
was transferred and renewed in 1999-2000, and continues. The
Court granted a declaration that the Crown and Wayerhaeuser
had, and continues to have, a legally enforceable duty to the
Haida to "consult with them in good faith and to endeavour to
seek workable accommodations". The Court warned that the
manner in which the duty to consult and reach accommodations is
discharged "will have a very significant impact on the final
determinations by a court... .which is considering the Aboriginal
title and Aboriginal rights of the Haida people, about whether that
title of those rights have been infringed, or continue to be
infringed, and, particularly, about whether any infringement was
justified."
To ensure good-faith negotiations, the Court created a
supervisory role for a Judge of the Supreme Court to make orders
during this period. If the Province or Wayerhaeuser fails to make
good efforts to reach an accommodation, not only is their conduct
reviewable by the Court, but when Aboriginal rights and title are
proven (as they will be in the later stage of the proceedings), the
Province and Weyerhaeuser's conduct will be considered in the
context of a remedy.
The Court also indicated that this type of proceeding, a
judicial review based on the Crown's obligations to consult and
accommodate, can serve as an alternative framework to
interlocutory injunctions for dealing with the reconciliation
process prior to a final determination of Aboriginal title and rights
by a court or confirmation of those rights in a treaty.
The court deferred to a trial on Aboriginal rights and title,
the question of the legal burden on Provincial Crown title arising
from Section 109 of the Constitution Act, 1982.
The judgement has far-reaching implications:
The Government's position that they will not negotiate and
litigate is now called into question. The Court imposed both a
duty to negotiate in good faith on the Province and the company,
an also ordered a supervisory role for the Court in the context of
litigation.
Haida (Continued on page 5)

Haida (Continued from page4)
The Province's position as to why it will not implement the
Delgamuukw decision has now been repudiated. The Province
has maintained that Aboriginal People must first prove their Title
before the accommodation principles of Delgamuukw are
engaged. Not only is the government required to accommodate,
but the Court has created an alternative legal framework to
challenge the failure of the Government to do so, where interests
in the resources are granted to third parties. The duty to
accommodate is on the Crown, and so the duty extends to all
Ministries where decisions with respect to the alienation of
resources are made, including in our opinion, to DFO and to
BCAL.
The Court held that the duty to accommodate is triggered
by the First Nation establishing a prima facie case of their
Aboriginal title and the likelihood of an infringement occurring. It
would be prudent for First Nations to gather together their
evidence to establish a prima facie case of Aboriginal title and to
deliver this evidence to the Province and Canada and to put the
Government on notice that they must consult to accommodate
Aboriginal title when making decisions regarding the alienation of
resources from your territory. Where the evidence is strong and
infringements likely, the duty to accommodate is at the highest
level.
The Court has gone some distance to readjust the burden
of proof. Once again prima facie case has established, the
Province is under an obligation to inquire into the extent of
Aboriginal Title and Rights, and possible interference before the
granting of a new tenure.
Environmental

G r o u p s Sign Strategic

Protocol with H a i d a Nation
(Vancouver, B C . March 6,2002) March 6 marks an historic
moment with the launch of the Haida title case with the signing of
a protocol with four key environmental groups ~ ForestEthics,
Greenpeace, Sierra Club of B C , and Rainforest Action Network ~
to work in a strategic alliance to respect the earth, waters and
culture of Haida Gwaii.
"This is a great occasion to build partnership between
environmental groups and the Haida Nation. We share the
Haida's respect for the earth and waters of the Haida Gwaii," said
Vicky Husband, Conservation Chair, Sierra Club of B C .
"The International community and marketplace continue to
place British Columbia under heavy scrutiny for our environment
practices and respect for First Nations rights," said Merran Smith,
Director, B C Coastal Program, ForestEthics. "We are proud to
support the Haida Nation through this protocol signing and to
stand by them when they launch this landmark case for the Haida
and the rights of all first nations."
"We look forward to working with the Haida Nation to
support a truly sustainable local economy that will benefit the
Haida and the ecosystems of Haida Gwaii," said Catherine
Stewart, Forest Campaigner, Greenpeace Canada.
The protocol signing took place at the Squamish
Recreation Centre, March 6,2002 following the launching of the
Haida title case.

Haida Nation v. B.C. and Weyerhaeuser
(Coast Salish Territory/Vancouver, February 28,2002)
Chief Stewart Phillip commended the victory of the Council of the
Haida Nation relative to its case Haida Nation v. B.C. and
Weyerhaeuser in the B . C . Court of Appeal on January 27th, 2002.
Chief Phillip stated, "As in the Taku River Tlingit decision, the
court has recognized that the Province of British Columbia's
approach to consultation is fundamentally flawed. Aboriginal
Title is a confirmed fact, just the same as a legal and fiduciary
duty exist on part of the province to respect and fully
acknowledge our Aboriginal Title exists."
In the Haida case, the Province issued a tree farm licence
(TFL) to MacMillan Bloedel who transferred the T F L to
Weyerhaeuser. As stated in the decision "The principal issue in
this appeal is about whether there is an obligation on the Crown
and on third parties to consult with an aboriginal people who have
specifically claimed aboriginal title or aboriginal rights, about
potential infringements, before the aboriginal title or rights have
been determined by a Court of competent jurisdiction."
"What we find compelling in the Haida decision is the
Court of Appeal ruled that there is an 'enforceable, legal and
equitable duty to consult' to both the Provincial Crown and to
third parties. This will certainly open the door to some frantic
rethinking of strategy by the Attorney General's office and of the
big corporations. No doubt the 'third parties' will not be happy
with this decision." Chief Phillip continued, "The Court has
confirmed once again that our Aboriginal Title and Rights exist
and must be meaningfully and substantively addressed. Both the
Provincial Crown and 'third parties' can no longer continue
adopting a 'business-as-usual' approach as though our Aboriginal
Title and Rights exist only as abstract legal notions."
"This decision further strengthens our defence of our
Aboriginal Title and Rights and puts third parties on notice that
they must consult with First Nations or they may suffer the legal
consequences. In this case, I am sure that the Council of the
Haida Nation will lead the province towards a process that firmly
recognizes their 'fiduciary obligations of utmost good faith' to not
only the Haida Nation but ultimately to all First Nations within
British Columbia" concluded Chief Phillip.

-30FOR MORE INFORMATION CONTACT:
Chief Stewart Phillip Cell: (250) 490-5314
President, Union of British Columbia Indian Chiefs

5

Fish farms accused of 'biological
pollution' B.C. salmon farms allowing
Atlantic salmon to escape, according
to Alaskan report
B.C. salmon farms have been practising "biological
pollution" by deliberately allowing the annual escape of hundreds
of thousands of Atlantic salmon, charges a report by the Alaska
department offish and game expected to be released this week.
Atlantic salmon pose "such an enormous threat to wild
Pacific salmon" that farms guilty of such releases should have
their licences revoked, says the report, a copy of which has been
obtained by The Vancouver Sun.
"It's a dirty secret not being put forward by industry," Bob
Piorkowski, the department's scientific program manager, said in
an interview. "We're talking about several million fish being lost
over the last 10 years certainly."
The white-paper report, prepared by half a dozen
biologists in the fish and game department, contends that when
B.C . fish farms replace their nets with larger mesh, they
knowingly allow the escape of "small or slow-growing" fish that
would be uneconomical to raise to full size.
The practice is routine in the industry to reduce the
amount of net area that can become fouled with algae, thereby
reducing maintenance costs. According to the state's report:
"Deliberate release of 'non-performing' fish [estimated at 3-5% of
production] totals hundreds of thousands offish annually and this
number is neither precisely known nor reported."
"Deliberate releases are referred to as 'leakage' and occur
when the smaller fish simply swim away when large mesh nets are
substituted for the smaller mesh nets in which the fish are initially
contained."
The report says the release of "Atlantic salmon into the
Pacific Coast ecosystem amounts to biological pollution," adding
"introductions of non-native species have frequently resulted in
unexpected and often catastrophic consequences from habitat
destruction, disease or parasites, hybridization, reproductive
proliferation, and predation and competition."
Although the report refers to B.C. as well as salmon farms
in the State of Washington, it is clearly more concerned with the
former. B.C. has 121 fish farm licences, with 91 operating sites
(Washington has 11 salmon farms in Puget Sound) and has
received the provincial green light for unlimited expansion, all the
way to Prince Rupert near the Alaskan border, effective April 30.
B.C. Salmon Farmers Association executive director Anne
McMullin did not respond to repeated phone and e-mail messages
seeking comment on the specifics of the Alaskan allegations.
Bud Graham, assistant deputy minister of agriculture, food
and fisheries, said he doubts the problem is as serious as
suggested by the Alaskans. His understanding of leakage is the
sort of loss that occurs when a salmon accidentally flips its way
to freedom during a grading operation.

"We're talking about miniscule numbers," Graham said.
"What is described by this would be a deliberate release and
that's against the law. If there was evidence that kind of activity is
taking place, we would be prosecuting."
The B.C. government amended its aquaculture regulations
in October 2000 to require that "mesh size of netting must be
small enough to contain the smallest fish in a population of fish
placed in the net pen."
Graham denied the amendment was prompted by the
industry doing precisely what Alaskans have alleged. Instead, he
said the amendment was part of a package of changes designed
to "establish a series of benchmarks against which an inspector
could evaluate whether the industry was practising due diligence
to minimize the escapes from taking place."
No fish farms have been charged under the mesh-size
amendment. However, last November, the province did charge
Omega Salmon Group Ltd. with four counts under the B.C.
Fisheries Act following theJuneescape of more than 13,000
farmed Atlantic salmon through a hole in a farm net near Port
Hardy.
The province is now seriously considering an industry
request to have the mesh-net amendment removed. "We want to
prevent escapes," Graham said. "We don't want to necessarily
specify for them every single way... because we can't think of
all the ways that you could prevent escapes from happening."
He added it would not make economic sense for industry
to allow three to five per cent of its fish to escape, noting stocks
are normally graded into specific pens based on growth rates.
"They wouldn't deliberately do that," Graham said, putting
the official number of escapes at about 60,000 per year in B.C.
However, in a recent report for the David Suzuki
Foundation, John Volpe, associate professor of fisheries ecology
at the University of Alberta in Edmonton, said a prevailing
"educated guess" among scientists puts leakage from net pens at
0.5 to 1.0 per cent annually.
Based on 1999 productionfigures,he calculated, that
would represent up to 110,800 Atlantic salmon, 25,300 chinook,
and 5,900 coho — all in addition to those officially reported. But
he added "until the issue is rigorously examined, we will not know
to what extent these estimates reflect reality."
Volpe added that salmon farmers themselves often do not
know how many fish they have in their nets, so wouldn't know if
some were missing.
David Lane, Executive Director of the T. Buck Suzuki
Environmental Foundation, said he's heard anecdotal reports of
industry allowing escapes during net changes, but has never seen
the allegation spelled out in a government document. And he's
never heard industry officials admit to the practice. "Of course,
they're into denial about most problems."
The Alaskan report took Laurie MacBride, Georgia Strait
Alliance Executive Director, by surprise. "Wow," she said. "I've
heard of chronic leakage. But it was defined by industry as
unavoidable small escapes that occur without them realizing

Fish Farms (Continued on page 7)
6

Fish Farms (Continued from page 6)
it, maybe a little hole in the net. That chronic leakage could be
deliberate, that's an interesting new dimension. I wouldn't put it
past them... nothing surprises me anymore about this industry."
Alaska's Piorkowski said he and a department colleague learned
about deliberate leakage while attending an Atlantic salmon
workshop sponsored by Canada's fisheries department at the
University of B.C. in early 2001, several months after B.C.
approved its net-mesh amendment. (Norway representatives
reported the same leakage problem in their own country,
he said).
"It came from the industry," Piorkowski said. "They said
three to five per cent... so if you grow 10 million Atlantic
salmon, that would be 300,000-500,000 salmon essentially being
deliberately released. You don't want to feed them anymore
because they aren't going to grow fast enough to get to market.
"We were really shocked at the meeting when this was
looked at as just a normal, acceptable practice. Eventually, with
most animal populations, with leakage like this, there's a fair
chance they'll get established."
Piorkowski also complained that leaked fish are not
officially reported. "There are a number of farms in B.C. that
have never reported the loss of a single fish. You know they have
losses. There are so many farms, so scattered, certainly any
thinking person would think that [the reported] figure has to be
way low."
Graham could not immediately confirm that some B.C.
salmon farms have never reported a single escaped salmon, but
stressed that every salmon, regardless of how it escaped, must be
officially reported.
The state of Alaska has banned salmon farming since 1990,
concerned that Atlantic salmon pose a threat to wild Pacific
stocks should they transfer diseases and parasites, or become
established and compete for food and spawning beds.
Despite those concerns, the first Atlantic salmon was
recovered in Alaskan sea waters in 1990, and since then, almost
600 have been documented by the department of fish and game.
Untold numbers go unaccounted for, straight into frying
pans or home freezers or the garbage. The first documented
freshwater catch in Alaska occurred in 1998 in Ward Creek, just
north of Ketchikan.
The Alaska white-paper report is expected to be released
officially this week to the fish and game department's Web site, at
http://www.ak.gov/adfg/

Larry Pyrin
As printed in the Vancouver Sun
Monday, February 25,2002

Community Consultations Get
Underway for New Wildlife Act
IQALUIT,Nimavut (April 12,2002)
Sustainable Development Minister Olayuk Akesuk today
announced that extensive community consultations on creating a
new Nunavut Wildlife Act are about to begin. 'The Wildlife Act
will affect every single person in Nunavut, and we want
Nunavummiut in every community to have the opportunity to
personally tell us their concerns and provide us with comments to
help us draft the new Act. Our consultation panels will travel to
25 communities during April and May,' Minister Akesuk said.
The development of a made-in-Nunavut Wildlife Act is a
priority of the Nunavut government. The current Wildlife Act was
passed in 1978 by the Northwest Territories, and was adopted by
Nunavut on April 1,1999. It does not meet the needs of Nunavut.
The goal is to replace the current Wildlife Act with
legislation that:
• Is modern and consistent with wildlife provisions of
the Nunavut Land
• Claims Agreement (NLCA);
• Incorporates Inuit Quajimajatuqangit, and
• Is consistent with national and international
agrements on the Protection of biodiversity, species
at risk, and habitat.
The government has adopted a partnership approach to
develop the legislation. A working group consisting of representatives of the government, Nunavut Wildlife Management Board
(NWMB) and Nunavut Tunngavik Incorporated (NTI) was
formed to guide development of the Act. Ben Kovic, Chairperson
of the NWMB, praised the government for its collaborative
approach in creating a new Act. 'The NWMB welcomes the
opportunity to participate in the development of a new Nunavut
Wildlife Act. It is essential that the hunting rights and the management system set out in the NLCA be fully reflected in the Act,'
he said.
Raymond Ningeocheak, NTI's Second Vice President,
stated: 'I am extremely pleased that public consultations are
taking place and Inuit will have the opportunity to state what
they would like to see in the Nunavut Wildlife Act. In the past we
would just see the finished product. Today we have the opportunity to have our voice heard. This is an exciting opportunity to
incorporate Inuit Quajimajatuqangit and Traditional Knowledge
as per Canada's obligation under the NLCA and the International
Agreement - Convention on Biodiversity.'
The community meetings will be hosted by two travelling
consultation panels made up of representatives from the three
parties. In addition, a number of special facilitators have been

Wildlife Act (Continued on page 15)
7

Joint Policy Council Update
Hadih and Tansi from the Joint Policy Council Department:
There are a number of issues that we have been working
on. The following is a brief summary of a few of these
items: the meeting with the Secretary of State Stephen
Owen, the Referendum Update and the Louise Mandell
Referendum Analysis and Strategy Options, Dispute
Resolution developments with the Treaty Negotiation
Office, the First Nations Governance Initiative and an
update of the Inherent Rights Conference in Winnipeg,
Manitoba.

UBCIC meeting with Secretary of State Stephen
Owen
February 15, 2002 a delegation of chiefs had a formal
meeting with the newly appointed Secretary of State
Stephen Owen. The delegation formally presented a
synopsis of the principles and goals of the U B C I C by
President Chief Stewart Phillip. The one hour and half
meeting allowed the Chiefs to express their concerns such
as the issues involved with the First Nations Governance
Initiative (FNG), Aboriginal Title and Rights issues, an
information package containing information such as a letter
from Delgamuuk'w Implementation Strategic Committee
(DISC) Co-Chair Art Manuel outlining the problematic and
outdated Comprehensive Land Claims Policy. The Legal
Review of Canada's Comprehensive Land Claims Policy
prepared by Mark Stevenson, a DISC press statement that
calls upon Stephen Owen to provide a formal response to
an A F N Legal Review of the C C P . The resolutions passed
rejecting the F N G Process.

Referendum
In an effort to educate the general public about the complexity and long history of the fiduciary obligations of the
Province and Canada, which are grounded in the Constitution of Canada, UBCIC asked aboriginal rights lawyer
Louise Mandell to do a legal analysis of the proposed
referendum questions put forward by the Select Standing
Committee on Aboriginal Affairs. The main point of the
analysis is that the Province lacks the jurisdictional authority to undertake or implement the results of the referendum.
The Mandell Analysis is available online at http://
www.ubcic.bc.ca. We now know that the official date of the
distribution of the referendum ballots is April 2, 2002. The
referendum questions will be 8 of the initial 16 questions
posed. W e are exploring options as to what advice we will
provide as what to do with the referendum ballot. A press
release will be sent out with the different options.

8

Dispute Resolution Mechanism
Friday, February 8, 2002 a meeting was held at the Victoria
Treaty Negotiation Office between Jean Dragushen,
Catherine Panther and Jose Villa-Arce with the UBCIC J P C
Department Director Don Bain and Policy Analyst Nicole
Hetu. One of the main items of discussion was a dispute
resolution process to be explored in the new fiscal year.

National Protection of Treaty & Inherent Rights
Gathering
At the March 11 and 12, 2002 "Treaty & Inherent Rights
Gathering," hosted by the Assembly of Manitoba Chiefs in
Winnipeg, Manitoba passed a resolution that reads:
Further be it resolved, The Implementation Committee will meet to develop a plan based on the Action
Plan drafted for the Protection of Treaty and Inherent
Rights Gathering for review and approval to be
provided to the Assembly First Nations Special
Assembly, the plan will include:
• International Strategy
• Committee designed and driven dialogue from the
perspective of First Nations on the F N G A ;
• Draft Band Council Resolutions to send to
Canada;
• Media Strategy, public awareness and letter
campaign to all Members of Parliament, Senate,
and others;
• National Day of protest across the lands when the
F N G A is tabled;
• Strategic plan to proactively impact the legislative
and policy process;
• Legal action based on the violation of Treaty and
Inherent Rights;
• Address the violation of human rights by the
Government of Canada; and National petition with
education materials attached.
In recognition of the financial difficulties of the
Assembly of First Nations the national Implementation Committee asks the A F N to provide office
space with a phone and fax for a national coordination office with staffing to be identified and provided
by the National Implementation Committee.

Moved by Chief Stewart Phillip
Seconded by Chief Dwayne Blackbird

Manitoba Chiefs Delegation Launches
Major Lobbying Campaign Against
Governance Initiative (March 21, 2002)

Resource Centre, Spring 2002
Library Staff Update

Jenn Campbell has been Acting Head Librarian since
September.
Kim Lawson, (Heiltsuk), was hired as the new
Representatives of the Assembly of Manitoba Chiefs
Librarian. Jenn is staying at the Resource Centre, returning to her
( A M C ) started a major lobbying campaign to stop the
work as library technician. Arlette Alcock, who was at the
proposed First Nations Governance Act Initiative o f the Resource Centre for four months stays with the UBCIC, now
Minister of Indian Affairs, Robert Nault. The delegation is works with the Research Department.
composed of Grand Chief Dennis White Bird of the A M C ,
Kim is completing her Masters in Library and Information
Grand Chief Frances Flett o f the Manitoba Keewatinowi Studies at UBC and has worked at the Xwi7xwa Library at the
Okimakanak (MKO) and Grand Chief Margaret Swan of the House of Learning at UBC and Heiltsuk Cultural Education
Centre.
Southern Chiefs Organization.
The delegation met with M P ' s o f various parties
including John Harvard, Rick Laliberte and Larry Bagnell o f
the Liberal Party. The MPs have undertaken to bring the views
of the Manitoba delegation to the attention of Minister Nault
and to the House of Commons.
"The MPs were very interested in the issues we raised
about the legitimacy and value of the consultation process
that the Minister used in this initiative. Minister Nault claims
that over 400 First Nations communities support his process.
This is totally erroneous. The MPs clearly understood our
concerns that this process responds to the Minister's interests
and not to First Nations needs and aspirations. They agreed
that any process of this nature should be First Nations driven
in order to ensure that our concerns and interests are at the
forefront of any initiative", stated Grand Chief Dennis White
Bird.
The delegation also met with the full N D P Caucus
where the main discussions centred on the enhancement o f
self-government implementation for First Nations
governments. The delegation will be meeting with other MPs
and key supporters in the Ottawa area today, the last day o f
their initial lobby campaign in Ottawa
This is the first step of the implementing of an action
plan developed in Winnipeg on March 11 and 12 , at the
National Treaty and Inherent Right Gathering. A National
Political Action Committee was established and they will
implement the action plan that calls for continued and
escalating lobbying efforts and protests to stop this i l l conceived plan by Minister Nault and start dealing with the
real issues facing First Nations in Canada. Lobbying efforts
will also be directed towards church, labour, political parties
and interested groups in the coming weeks.
th

Contact Louis Harper (204) 799-3482

th

Summer Research Visits
The Resource Centre has good materials about
aboriginal law, First Nations history and culture in BC, and issues
such as intellectual property rights. There are lots of things here
that can help you if you are doing claims research, including
government records and reports; the DIA Reserve Schedules;
findings aids for other archives; microfilm copies of archival
documents; journals, newsletters; informationfromStatistics
Canada; census material; and some academic reports.

Planning a research trip to the Resource Centre?
Please let us know when you plan to come so we will be
prepared for your visit. Call us at (604) 602-3433 or 3434, or
send us an email at [email protected] If you fax us (604 6845726) a description of your research or the information you want
to find, we can give you a better idea of what we have that will
help you. We can also suggest other libraries and archives that
may have more information to help plan your trip. We have lots
of important material that isn't in our catalogue yet. Our two
microfilm reader/ printers can be very busy over the summer. You
can search through our catalogue or thefindingsaids for the
Department of Indian Affairs records (RG-10files)fromthe
UBCIC Web Page, http://www.ubcic.bc.ca/ Please bring a Band
Council Resolution (BCR) showing that you are conducting
research on behalf of your Band,

Planned work at the Resource Centre
We have applied to HRDC for funding of summer
students again this year. We hope to have two students working
on the putting the last books from the card catalogue into the
computer catalogue, and another student working with the maps,
photographs and sound recordings that aren't in the catalogue
yet. We also hope to find funding for the Archival Media
Preservation Project. Much work was done on a basic inventory
- there are over a thousand video, film and audio tapes. Wendy
Ancell identified 442 tapes which are deteriorating, and need
conservation work and copying.

9

Legal Update
Taku River Tlingit First Nation v. Ringstad
B.C. Court of Appeal
January, 2002

are respected or considered in government decision making violates the purposes of Section 35(1) of the Constitution Act, 1982.
After observing that the guiding principle of Section 35(1) is to
reflect the trust-like relationship between aboriginal peoples and
government, the Court said that the Province's position
.. .would be contrary to that guiding principle to interpret
s. 35(1)...as if it required that before an aboriginal right
could be recognized and affirmed, itfirsthad to be made
the subject matter of legal proceedings; then proved to the
satisfaction of a judge of competent jurisdiction; and finally
made the subject of a declaratory or other order of the
court. That is not what s. 35(1) says and it would be
contrary to the guiding principles of s. 35(1)...to give it
that interpretation.

The Province issued a mining certificate allowing further
development of the Tulsequah mine. The Taku successfully
challenged this decision before the B.C. Supreme Court claiming
that the Province had not adequately consulted with them about
their Aboriginal Title and Rights. The Province appealed to the
B.C. Court of Appeal and argued that it does not have a legal or
fiduciary duty to consult with Indigenous Peoples about Aboriginal
Title or Rights, or to take those rights into account, until those rights
The Court explicitly rejected the position taken by the
have first been proven in Court.
B.C. Supreme Court in the Westbank logging case (where the
chambers judge required that aboriginal title be proven, before the
The majority of the B.C. Court of Appeal rejected the Province was required to consult about possible infringements of
Province's arguments, saying that the Crown's position (of ignoring that title), and reaffirmed the decision in Taku that there is a duty
Aboriginal Title and Rights) has "the effect of robbing s. 35(1) of on the part of government to consult before aboriginal title is
much of its constitutional significance" and would "effectively end proven.
any prospect of meaningful negotiation or settlement of aboriginal
land claims."
Here, the Court found that the evidence put before the trial
judge showed that the Haida had a "good prima facie case to
The Court of Appeal clearly stated that the government is claim for aboriginal title and aboriginal rights" which "gives
under a legal duty to consult with Indigenous Peoples about their content to the obligation to consult and the obligation to seek an
Aboriginal Title lands and resources, with the aim of addressing accommodation". The Court then went on to suggest that the
those concerns, and that this duty does not require that Indigenous greater evidence there is of the existence of aboriginal title and
Peoplesfirstgo to Court to prove the existence of their rights. Where rights, the greater the obligation on the Crown to consult.
government proceeds with land and resource use approvals, without
taking assertions of Aboriginal Title into account, there is the
However, in its decision, the Court did not cancel the Tree
possibility of a constitutional violation of Aboriginal Rights, which Farm Licence saying that this step would likely require a full trial
lead to a "serious injustice".
involving the proof of aboriginal title, and of the fact that the licence
provided an infringement of that title. Instead, the Court issued a
declaration that the Province and Weyerhauser were under a legal
Haida Nation v. B.C. and Weyerhauser
duty to consult with the Haida and to seek an accommodation of
B.C. Court of Appeal
the
aboriginal and non-aboriginal interests. The Court directed the
February, 2002
parties to a negotiation/consultation process and said that issues in
dispute could be referred to the B.C. Supreme Court who would, in
The Haida challenged the renewal of a Tree Farm Licence
effect, supervise the negotiation/consultation process.
on Haida Gwaii without consultation or consideration of the
Aboriginal Title and Rights of the Haida. The Court of Appeal
In its decision, the Court emphasized the need for the
confirmed its earlier decision, in Taku, that the Province in under a
reconciliation
of aboriginal and non-aboriginal interests through a
legal duty to consult with Indigenous Peoples about asserted
process
of
negotiation,
and further suggested that the Courts should
Aboriginal Title and Rights (which have not been proven in court)
be
prepared
to
supervise
this process:
and to take these into account in its decision-making.
Justice Lambert, writing for the Court, added several
important points regarding the Crown's duty to consult. First, he
said that the duty to consult arises, in part, from the Royal
Proclamation, J 763 and that "Whenever thatfiduciaryduty arises,
and to the extent of its operation, it is a duty of utmost good faith."
The Court went on to say that the Province's position - of
requiring aboriginal peoples to first prove their rights before they

If the Crown can ignore or override aboriginal title or
aboriginal rights until such time as the title or rights are
confirmed by treaty or by judgment of a competent court,
then by placing impediments on the treaty process the
Crown can force every claimant of aboriginal title or rights
into court and on to judgment before conceding that any
effective recognition should be given to the claimed
aboriginal title or rights, even on an interim basis.
Legal Update (Continued on page 11)

10

Legal Update (Continued from page 10)
...But its [this case's] resolution could provide the
beginning of an alternativeframeworkfor dealing with the
reconciliation of claims to constitutionally protected
aboriginal title and aboriginal rights, on the one hand, and
the public interest, both aboriginal and non-aboriginal, in
the elusive economic prosperity of the primary industries
of the province.
An interesting feature of the case, is that Weyerhauser (the
private company) had a fiduciary duty to consult with the Haida,
arising out of the fact that they were aware that the Haida had asserted
aboriginal title and interests in the area.
The decision that a private company owes fiduciary duties
to aboriginal peoples when they seek to develop or utilize lands
over which aboriginal title and rights are asserted raises some
interesting points. On the one hand, it raises the possibility that the
private companies will be more motivated to work with aboriginal
peoples, and to take concerns raised by aboriginal peoples seriously.
On the other hand, it raises the possibility that government may try
to off-load their fiduciary duties to aboriginal peoples onto private
companies in the future. Weyerhauser has since announced that it
intends to appeal the decision that it was under a fiduciary duty.

Osoyoos Indian Band v. Oliver (Town)
2001 SCC 85 (December, 2001)

Facts:
The Osoyoos Indian Band issued a property tax
assessment notice, pursuant to their s. 83 Indian Act taxation
bylaws, to the town of Oliver concerning a canal that intersected
their reserve lands. Oliver appealed the assessment and claimed
that the land on which the canal was situated was not "in the
reserve" for the purposes of the Indian Act and therefore could
not be taxed by the Band
The OIC defined the lands as a "rights-of-way" and reserved
interest in minerals in the lands to the federal government. The
lands were registered as fee simple lands, owned by the Province, in
1961. The town of Oliver has maintained and operated the canal,
although there was not formal lease or other arrangement between
Oliver and the Province.

Issues:
The Supreme Court was asked to decide two questions:
1.

Are lands, taken pursuant to s. 35 of the Indian Act, "land or
interests in land" in a reserve of a Band within the meaning of s.
83(1 )(a) of the Indian Act such that those lands are assessable
and taxable pursuant to the Band's taxation by-laws?

2.

If s. 3 5 of the Indian Act authorizes the removal of lands from
reserve status,doesfederalOrder in Council 1957-577, by which
the Lands were transferred, remove the Lands from reserve

status so that they are not assessable and taxable by the
Osoyoos Indian Band?

The decision:
The Court issued a split decision. The majority of the Justices
(McLachlin, C.J., and Iaccobucci, Binnie, Arbour and LeBell, JJ.)
found that the interest expropriated was not a complete interest,
and therefore the lands remained within the reserve and were subject
to the Band's taxation by-laws. The dissenting minority (L'HeureuxDube, Gonthier, Major and Bastarache, JJ.) felt that the effect of
the OIC was to remove the lands permanentlyfromthe reserve, and
therefore take them outside ofthe Band's ability to tax. The decisions
of the majority and minority are discussed below.
There are a number of interesting points which emerge from
the decision, and which will impact, both positively and negatively,
on aboriginal peoples when we seek to go before the Courts in order
to protect our interests in reserve lands:
1.
When Canada has made a decision to grant
an interest in reserve lands for a public purpose (i.e., utility
right-of-ways, highways, etc.) it will be a guiding principle
of the Court in looking at the document creating the interest
that Canada meant to impair the Indian interest in reserve
lands as minimally as possible. Thus, if an interest less
than a full fee simple interest could have served the purpose
(and the instrument does not explicitly list a full fee simple
interest) the Courts should assume that a lesser interest
was granted that would enable the Indian interest in their
reserve lands to subsist. This would, for example, support
the taxing jurisdiction of those Bands with taxation bylaws
in place.
2.
The Court made a distinction between
"aboriginal title" lands and reserve lands. Due to the
reasoning of the Court in Delgamuukw and Guerin,
Indigenous Peoples have argued that the Indian interest in
reserve lands and aboriginal title lands is similar, and binds
the Crown to the same fiduciary duty. Both the Majority
and Minority disagreed with this. The Majority agreed
that there is a "special (sui generis) interest" in reserve
lands, which engages thefiduciaryduty of Canada in dealing
with these lands, however they seem to suggest that the
fiduciary duty should be exercised differently according to
the different class of interest. The Minority felt that the
Indian interest in reserve lands was a creature of statute
(the Indian Act) and could be abrogated according to the
terms of the statute.
3.
Canada argued that it could not be bound to
exercise a full fiduciary duty in relation to a decision to
expropriate reserve lands, because it would be in a conflict
of interest between the duty it owes to the public and the
duty it owes to aboriginal peoples. The Majority rejected
this argument, but did so in a way which weakens the federal
fiduciary owed to aboriginal peoples. The Majority found
Legal Update (Continued on page 12)

11

Legal Update (Continued from page 11)
that there is a two-step process involved in making a
decision to expropriate reserve lands; the first step does
not engage the federal fiduciary, while the second step does.
The actual decision of whether or not to expropriate reserve
lands for a public purpose does not engage the federal
fiduciary (i.e., Canada is not bound to act according to its
fiduciary duty when it decides whether to expropriate an
interest in reserve lands), but once the decision is made,
Canada is bound to exercise its fiduciary duties when
deciding how to carry out the expropriation (i.e., to ensure
that the Indian interest is "minimally impaired" and
adequately compensated).
C a n a d a v.

Monias

Federal Court of Appeal, (July, 2001)
This case involved an appeal of employees of the Awasis
Agency of Northern Manitoba, a Native run corporation, which was
established to provide social services to children and families on
reserve. Awasis was created as a child caring agency under the
Manitoba Child Welfare Act and is funded by the federal government.
The purposes of Awasis are exclusively to provide child welfare
services, and they do so to a number of remote communities. Due
to the geography, the main office is located in a northern urban
centre, off-reserve. The annual meetings of the organization are
also held in main urban centres, outside of the reserves.
The employees' incomes were deemed "taxable" by the
Canada Customs and Revenue Agency (the " C C R A " ) , and not
subject to the Indian Act exemption, which applies to the property
of Indians situate on reserve. The bulk of the work of the employees
was done in Thompson (off-reserve) and they did not live on reserve.
Issue:
Is the income of the Awasis employees tax exempt for the
purposes of section 87 of the Indian Act, because it is
performed for the benefit of people living on reserves and
guided by reserve based communities?
Decision:
The Federal Court of Appeal found that the income of the
Awasis employees was taxable. In doing so, the Court ran through
the "connecting factors" test which was originally set out in the
Williams case in order to determine whether or not the income
involved could be considered to be "situated on the reserve. The
Federal Court of Appeal gave a restrictive reading to the tax
exemption contained within the Indian Act, and decided that it would
not allow the exemption in the case of the Awasis employees.
In recent years, there has been much taxation litigation as
Canada tries to restrict the interpretation of what income may be
considered to be tax exempt. Despite the "connecting factors" test

set out in Williams, in practice, the only income that has been
recognized (aside from a few specified cases) is income which is
geographically connected to, and performed on, the reserve. Monias
is one of a number of cases in which the employees have tried to
argue that the nature of their work (i.e., exclusively for the benefit
of on-reserve Indians) should be a relevant factor in determining
whether the work should be considered to be situate on reserve.
After Williams, the C C R A , issued Guidelines stating how it
would interpret the "connecting factors test" set out in Williams to
determine whether or not the employment income of an Indian should
be considered to be situate on the reserve, and therefore tax exempt.
Canada identified the following instances where it would hold that
the employment income was tax exempt:
1.
2.
3.

4.

The work was performed on a reserve.
The employer is resident on a reserve, and the Indian
employee lives on a reserve.
The employment duties are performed mainly on
reserve, and the employer is resident on reserve, or
the employee is resident on reserve.
The employer is resident on reserve, and is
(a)
An Indian Band;
(b)
A tribal council representing one or more
band;or
(c)
A n Indian organization controlled by one or
more such band or tribal councils, if the
organization is dedicated exclusively to the
social, cultural, educational or economic
development of Indians who for the most
part live on reserve, and the duties of the
employment are non-commercial activities
and are for the benefit of Indians who mostly
live on reserve.

The Crown, in the Awasis case, decided to discontinue its
appeals against those portions of the employees' work that was
actually located and performed on reserve (i.e., if an employee could
show that 25% of their employment was performed on reserve, the
Crown decided that it would agree with this proportional exemption)
because this was an exemption allowed in their Guidelines. The
Court suggested that it did not agree with this interpretation of the
Crown, and may not have allowed any of this income to be exempt
if it had been asked to issue a decision on this point.
The Court went beyond what it was asked to do by the
Crown, and suggested that it found C C R A ' s Guidelines to be too
permissive in finding an exemption. The Court of Appeal elected
not to apply Canada's Guidelines in deciding whether or not the
income was exempt, and reiterated that the purpose of the income
tax exemption contained in section 87 was not to afford Indian people
special status when they choose to enter the "commercial
mainstream", but rather:
.. .the more limited and specific purpose of section 87 is to
protect reserve lands, and Indians' personal property on a
reserve, from erosion, so that the Bands are able to sustain
themselves on the reserves as economic and social units.

Legal Update (Continued on page 13)
12

Legal Update (Continued from page 12)
Hence, it is fully consistent with legislative policy to apply
section 87 to income that is earned by Indians who reside

However, once all the connecting factors cease to be located
on a reserve, it quickly becomes difficult to link the policy
underlying the section 87 exemption to the factual context
in which a person acquired the employment income in
question. ... [T]o stretch the benefit of paragraph section
87(1 )(b) beyond its limited rationale would be likely to
produce incoherent and ad hoc decisions, [at paras 2324]
The Court considered a number of connecting factors, giving
a rather restrictive interpretation of each. While acknowledging
that these must be applied on a case-by-case basis, it emphasized
that the location of the employer "will generally be very important
in situating an Indian's employment income for the purposes of
section 87."
Nature of the employment: (location of the employment,
nature of employment services, surrounding circumstances). Here,
even though the work was done for the benefit of Indians living on
reserves, this was not determinative:
However, while the employees' work may help to maintain
and enhance the quality of life on the reserves for members
of the Bands living there, it does not necessarily connect
the acquisition or use of their employment income to the
reserve as physical locations, [at para. 46]
Location and Nature of the Employer: The Court of
Appeal decided that although the location of the employer is a
relevant factor they were unwilling to locate an employer on reserve
for "convenience's sake", and would examine the operations of the
employer and determine if they were really situate on reserve.
...in the absence of some evidence of the scope of the
employer's activities on the reserve, or some benefit flowing
to a reserve from the presence of the employer, it is not a
factor to which much weight is apt to be assigned. ...In
particular, an employer's location of convenience on a
reserve will do little to connect the employment income to
a reserve, [para. 50]
The Court considered the factors which connect the
employer to the reserve, including: they were established to provide
child services on reserve, its members and directors lived on reserve
for the most part, it was funded federally and created to serve the
reserve. Overall the Court of Appeal found that Awasis, as an agency,
had a "strong and unique" connection to the reserves, but nonetheless
went on to conclude that

the fact that Awasis does not conduct its business on a
reserve, and hence, apparently, provides no employment
opportunities on reserves, points to an off-reserve residency
on a reserve
fromthe
work
that is performed on a reserve.
and hence weakens the connection
between
employer
and the reserves for the purpose of determining the situs
of the respondent's employment income [at para. 55]
Despite that the Court of Appeal accepted that individuals
and families situated on reserve were the "immediate beneficiaries"
of the work performed by Awasis, the Court dismisses this as a
determining factor, saying that the fact that the work of Awasis
employees might "maintain and enhance" life on reserves for
members, "it does not necessarily connect" the employment of the
Awasis employees to the reserve. Reserves were looked at as a
"physical" location, and the fact that the work of the Awasis
employees benefited the reserve community was not seen as sufficient
to connect their work to the reserves for the purposes of drawing
the tax exemption.

Analysis:
The Manias case is troubling in many respects for aboriginal
organizations, because it reflects a trend on the part of the Federal
Court (both at Appeal and trial levels) to restrict the application of
the income tax exemption contained in section 87 of the Indian Act.
In particular, the reasoning of this case suggests that the Courts
take a very restrictive view of the connecting factors test (used to
determine if income or employment is sufficiently connected to the
reserve to draw the tax exemption), coming close to actually requiring
that the employment itself be performed on reserve. In this respect,
there are a number of questions raised which could impact the Union
of B.C. Indian Chiefs.
The Federal Court of Appeal seemed to suggest the
Guidelines which Canada follows in determining whether income is
tax exempt are too permissive, and that they would not necessarily
uphold them. The Union of B.C. Indian Chiefs' employees are
currently considered tax exempt on two basis under Guidelines 1
and 4.
Under Guideline 1, the "employer" is located on reserve,
as the UBCIC's head office is located on reserve, and a number of
operations crucial to the management and operation of the
organization are carried out on reserve. The Court of Appeal
suggested that the simple location of a head office on reserve might
not be sufficient to draw the tax exemption, and they would also
investigate where the actual work was performed. Thus, the Court
will be willing to examine if the head office is merely on the reserve
"for convenience's sake" (i.e., to draw the tax exemption).
The UBCIC's employees fall under Guideline Four (c)
which provides for an exemption for employees of:
An Indian organization controlled by one or more such
band or tribal councils, if the organization is dedicated
exclusively to the social, cultural, educational or economic

Legal Update (Continued on page 14)
13

Legal Update (Continued from page 13)
development of Indians who for the most part live on
reserve, and the duties of the employment are noncommercial activities and are for the benefit of Indians who
mostly live on reserve.
The Court of Appeal was willing, to some extent, to disregard
this Guideline, and suggested that even though the Awasis agency
was band-empowered, they would still require evidence that an actual
reserve benefited from the Agency, which would include the fact
that the agency provided employment or other financial benefits to
people living on the reserve (one factor which they considered was
the fact that the employees did not work on the reserve).

Rose Bear v. Canada (Attorney General)
Federal Court (November, 2001)
Bear brought a judicial review of the decision of the
Minister of National Revenue that she was not allowed to make
retroactive contributions to the Canada Pension Plan (the "CPP")
for the years 1966 to 1988. During this time, it was the practice of
Canada to not deem any employment of an Indian which was tax
exempt as "pensionable earnings" for the purposes of CPP
contributions. Thus, if an Indian's income was tax exempt, they
could not accrue CPP benefits relating to this amount.
Bear sued Canada claiming that these provisions were
discriminatory, and violated the equality provisions of section 15 of
the Canadian Charter of Rights and Freedoms and Section 1(b) of
the Canadian Bill of Rights. The Court decided that the Charter
could not retroactively apply, and so was not likely applicable in
this case. However, they did find that Canada's policy violated the
Bill of Rights, section 1(b) which prohibits discrimination on the
basis of race. Bear successfully sought an order from the Court
allowing her to make retroactive CPP contributions for all of the
years in which Canada had prohibited her from doing so.

Benoit v. Canada
(Federal Court - Trial Division) March, 2002
The Federal Court considered a taxation case brought by members
of Treaty 8, who claimed that Alberta and Canada violated the
provisions of Treaty 8 by assessing taxes against adherents to the
treaty. One of the main points of the case concerned the interpretation
of the Treaty 8 provisions. While not directly making Treaty 8
members tax exempt, there was supporting documentary and oral
history evidence which showed that the Indigenous peoples who
entered into the treaty understood that it would protect them from
taxation. Treaty 8 people relied on the argument that tax exemption
was contained as an "oral promise" of the treaty.
The Federal Court said that, while the Commissioners who made
the treaty might not have intended to grant a tax exemption, a tax
exemption was created if this was the honest belief and understanding
of the Indigenous Peoples who entered into the treaty:

14

The Court said it was important to look at the principles of
reconciliation in interpreting the terms of the treaty, and to assume
that both Canada and the Indigenous Peoples intended to negotiate
a successful treaty, stating:
In my opinion, according to law and in its own interests
and those of Treaty 8 Aboriginal People, Canada is required
to recognize and fulfill the tax assurance as it was
understood by the Aboriginal People in 1899. Accordingly,
as claimed by the Plaintiffs, I find that the Treaty term
found must be interpreted to provide to Aboriginal People
who are entitled to the benefits of Treaty 8, a treaty right
not to have any tax imposed upon them at any time for any
reason....[Nothing less will meet Canada's fiduciary
obligation to the Aboriginal People of Treaty 8.]
The Court concluded that members of Treaty 8 are immune from
taxation by Canada, and that this right has not been extinguished.
Thus, Canada has an obligation to honour and uphold this treaty
term, and any imposition of tax by Canada is an unjustified breach
of the Treaty 8 right.

Western Canada Wilderness Committee
condemns Treaty Referendum as being
immoral and a huge waste of time and
money
WCWC Director Joe Foy has delivered his ballot to the
Union of BC Indian Chiefs Office as a protest
"My wife and I had a lengthy conversation when the
ballots arrived at our house and we both decided that the best
way to register our opposition to the BC Treaty Referendum
was to deliver our ballots to an organization that represents
First Nations," explained Foy. "The Treaty Referendum is
designed to delay settlement of the BC land question. It is a
huge waste of time and money~and its immoral because it goes
after First Nation's rights,"said Foy.
At the Wilderness Committe's annual general meeting
held on October 13,2001, the membership unanimously passed
a resolution to oppose the BC Liberal government's initiative to
hold a province wide referendum on treaty negotiations.
Foy is urging all British Columbians to listen to what
First Nations are saying about the Treaty Referendum-then act
accordingly. There are a number of first nation web sites where
you can get good information about the treaty referendum on
treaty negotiations.
Contact: Joe Foy (604) 683-8220 or cell (604) 880-2580

Community Group Brings Art to
Anti-Referendum Efforts
An East Vancouver ad hoc neighbourhood group has
banded together to provide a creative outlet for widespread antireferendum sentiment. Neighbours Opposed to the Referendum
(NOT-R) is inviting the community to attend an "Art-In" where
people opposed to the referendum can decorate their ballots and
send a message to the B C Liberal Government.
Following each "Art-In" event, a merry "Parade of the
Decorated Ballots" will travel from the Britannia Centre to the
Vancouver Aboriginal Friendship Centre where Aboriginal Centre
representatives will accept the decorated ballots.
"We support the Aboriginal Friendship Centre's request
that people voting no deliver their ballots to them or to an
Aboriginal organization in their community," said Patty Moore,
N O T - R spokesperson.
According to Moore, the provincial Liberal government
is being profoundly discriminatory in requiring that First Nations
submit to a provincial referendum as a condition of enjoying their
constitutional rights. "We support First Nations' stand that this
referendum betrays a racist agenda," said Moore. "We join with
the many organization in B C that oppose the referendum. To their
shame, the Liberals have set a new standard for political
dishonesty and for the cynical misuse of voters and the
democratic process."
Contact: Patty Moore (604) 254-4810

Wildlife Act (Continuedfrompage 7)
effective in gathering public comments. The panels will begin
community consultations April 16 in the Baffin Region with the
first meeting being held in Iqaluit. Meetings begin April 18 in the
Kivalliq Region, and May 9 in the Kitikmeot Region.
Since February, the department's Wildlife Officers, working
with Hunters' and Trappers' Organizations, have been holding
discussions in communities to prepare residents for the panel
meetings.
In addition to the consultation meetings, a comprehensive
discussion paper in Inuktitut, Inuinnaqtun, English and French
will be circulated throughout Nunavut, and to interested parties
across Canada. A toll free phone number, a web site, and an email
address have been set up to ensure that everyone has the
opportunity to comment. Newspaper ads and community radio
programs will also be used to disseminate information throughout
the territory.
-30For further information, contact:
Stephen Pinksen
Senior Advisor, Legislation and Enforcement
Department of Sustainable Development
Tel 867-975-5900
Fax 867-975-5990

Filipinos in Vancouver Stand in
Solidarity with First Nations in
BC against Racist Referendum
Today Filipino community organizations stand in
solidarity with First Nations people of Canada and the Coast
Salish in B C , in denouncing the Native Rights Referendum as
against the interests of First Nations peoples and the people of
Canada. This action by the provincial government to bypass
unceded territorial claims is a calculated move by the provincial
government to strip ancestral land, resources and rights of the
First Nations people. The ancestral right of First Nation's people
in B C for control over their land and resources is part of the
global struggle for all indigenous people's around the world
against globalization.
The right of aboriginal people's claim to land is written in
their blood. Ancestral claims, that has withstood hundreds of
years of colonization and systemic racism. The provincial
government's referendum minimilizes the legitimate rights of First
Nations people in Canada by boiling down their ancestral rights
of self-determination and control of land and resources down to
an 8 question ballot.
In the Philippines, the indigenous people have faced the
same struggle against colonial forces and multinational
corporations for hundreds of years. The Cordillera people have
struggled militantly in response to the encroachment of Philippine
government land grabbing and multinational corporations'
mining the mountains they live in, contaminating the water they
drink, and patenting the food they eat. For the Cordillera people
and for the First Nations people of Canada, asserting their
ancestral rights land, resources and self-determination is a worldwide struggle of indigenous people against globalization.
As Filipino organizations we condemn the Native Rights
Referendum of the provincial government as racist. We stand
with the First Nations in continuing their continuing struggle for
their land and resources even as we also stand in solidarity with
all indigenous peoples of the world in their struggle against
globalization.
Boycott the Referendum!
Respect First Nations Land Claims!
Respect the rights of all indigenous people's to land, resources
and self-determination!
S I K L A B (Overseas Filipino Workers Organization), Ugnayan ng
Kabataang
Pilipino sa Canada / Filipino-Canadian Youth Alliance,
B C Committee for Human Rights in the Philippines
Filipino Nurses Support Group
Philippine Women Centre of B C

Interior Alliance
Haida Case: Where do we go now?
Consultation & Accommodation
T H I S P A P E R IS D E D I C A T E D T O T H E P E O P L E S A R R E S T E D
AT SKWELKWEK'WELT

The Court of Appeal for British Columbia in the "Council
of the Haida Nation and Guujaaw v. The Ministry of Forests and
the Attorney General of British Columbia and Weyerhaeuser
Company Limited" [2002] (Haida Case) made a very important
decision regarding consultation and accommodation of Aboriginal
Title and rights. This decision established an enforceable, legal
and equitable duty on the province of British Columbia and third
parties (businesses) to consult with indigenous peoples in good
faith and to endeavour to seek workable solutions between
aboriginal interests, on the one hand, and the short term and long
term objectives of the Crown and the third party on the other
hand. This decision does seriously challenge the political position
of the province that Aboriginal Title needed to be proved before
Aboriginal title would be considered in regard to land use
management.
It must be pointed out that all legal decisions have both a
legal, constitutional, economic and political interpretation. All
decisions normally have at least two different points of view that
normally flow from the two positions that made up the adversarial
arguments that were before the court. This means that after a
court makes a decision the opposition will try to narrowly
interpret the decision so that it does little or nothing to benefit the
other side. It is clear that the province have always tried to give
us little or no meaning to decisions that support Aboriginal rights.
It is clear that all legal decisions respecting Aboriginal title
have consequences that depend on our strategic response to a
particular decision. It is apparent that in the Geurin v. The Queen
[1984], R v. Sparrow [1990] Regina v. Van derPeet [1996],
Delgamuukw v British Columbia [ 1997] and Taku and Tlingit
First Nation v Ringstad [2002] have legal consequences on our
right to exercise Aboriginal Title. It is also clear that all these
decisions are precedents or are further legal decisions that give
expression to Aboriginal rights.
The Haida case clearly states that the provincial and
federal governments' political interpretation that Delgamuukw
only establishes Aboriginal title on a theoretical basis and really
didn't establish anything except that you need to go back to court
to prove title, is not entirely correct.
Chiefs, leaders and our experts need to be very careful
about accepting what the federal Department of Justice,
Department of Indian Affairs and the provincial Attorney General
provide as their political interpretation of an Aboriginal rights
decision. We must understand that the federal and provincial
government political interpretations are designed to maintain or
expand their jurisdiction under the Constitution of Canada.
Indeed any decision that expands our Aboriginal rights will be as
narrowly interpreted as possible. That is why politically chiefs,

16

leaders and our experts need firmly believe in our Aboriginal
rights in order not be caught having to re-think our position when
the Haida decision clearly reverses the self-serving logic of the
federal and provincial governments' political opinion.
In the Haida case the position of the Crown and
Wayerhaeuser are articulate in paragraph [9]: "The Crown and
Wayerhaeuser say that there is no obligation on the Crown or on
Weyerhaeuser to consult the Haida people about logging on the
Queen Charlotte Islands until the Haida people have obtained a
judgement of a court of competent jurisdiction declaring the
Aboriginal title and rights to the Haida people over Haida Gwaii
and demonstrating that the logging operations would be a prima
facie infringement of the Aboriginal Title or those aboriginal
rights."
This legal argument really just reflects the business-asusual approach of the provincial and federal governments and
third party interest toward our Aboriginal rights.
I feel that we will need to know how the provincial
government is going to respond to the Haida decision but this
does not mean that we cannot also start generating our own
interpretation of what this decision really means to us. In fact
until the BC Attorney General Geoff Plant has given thought to
what it means, it is premature to speculate what the implications
are. He of course is looking for solutions that will clearly keep
the BC industry proceeding according to his business-as-usual
strategy. I believe that our strategy will have to be to challenge
whatever kind of limp political strategy that he comes up with.
I firmly believe that the political failure to force the federal
government to develop a new Comprehensive Claims Policy
pursuant to the Delgamuukw decision resulted from a lack of
political pressure, because certain key indigenous leaders fell prey
to the trap of believing the Department of Justice opinion that
Delgamuukw did not establish Aboriginal Title on the ground. I
feel that the Haida case is our second chance to move Aboriginal
rights forward in a meaningful way, in terms of developing an
Aboriginal land rights policy that is based on the recognition of
Aboriginal Title and in terms of economic interests being
strategically redefined.
The Court of Appeal basically sets out an alternative
framework that speaks to the "reconciliation of the claims to
constitutionally protected Aboriginal Title and aboriginal rights,
on the one hand and public interest, both aboriginal and nonaboriginal, in the elusive economic prosperity of the primary
industries o the province on the other hand".
The courts could use the "interlocutory injunction
process" as "a valuable interim process for balancing competing
interests while litigation is pending. It provides a framework for
reconciling competing interests on the basis of standards which
can be used for weighing, on a preliminary basis, the validity of all
or some aspects of the claims to title and rights, and which can be
used for assessing the balance of convenience in the granting of
an interlocutory injunction over all or part of the area claimed and
in relation to some or all of the interests.
The importance of having an alternative framework is to
deal with Crown and third party activities that would basically

Interior Alliance (Continued on page 17)

Interior Alliance (Continued from page 16)
destroy Aboriginal rights like clear-cut logging. The Court of
Appeal does not however limit the alternative approach to merely
the interlocutory injunction process but also opens it up to any
"binding legal obligations" that are entered into before any
pending litigation or treaty settlement is made. The agreements
that would fall under this aspect of the alternative process would
all be discretionary agreements under existing provincial or
federal laws like protocol agreements specific business
investments, joint ventures and small timber licences. It would
therefore be necessary to identify these agreements because the
Crown and third party interests will use the agreements as
evidence that they have already met their duty on consultation and
accommodation.
The decision whether or not the Crown and third parties
have properly discharged their duty respecting consultation and
accommodation will include balancing the interests between
indigenous economic activities and indigenous traditional
activities. In particular analysis regarding this dichotomy of
interests should be done so that indigenous interests are
maximized to their fullest extent under this initial process. It is
clear however that all third party activities will primarily focus on
the impact they have on the activities of our traditional land users.
In this sense indigenous economic interests will become a matter
of consultation or accommodation.
Future processes regarding the duty of the Crown and
third parties must be based on involving Elders and traditional
land users. Their traditional knowledge and traditional activities
are the basis on which the economic activities of third parties need
to be measured. In the Haida case the Haida peoples were
concerned about the renewal and transfer of a Tree Farm Licence.
In our particular case we should look at the duty to enter into
good faith negotiations and accommodate indigenous interests to
be applicable to both the federal and provincial government.
It needs to be understood that the federal and provincial
government have bureaucracies and plans that manage lands and
resources throughout territories. These agencies and plans
involve economic schemes that support the interests of Canada
and British Columbia. The interests of indigenous peoples are
basically ignored or overridden by federal and provincial interests.
On the local, provincial, national and international level
Canadian governments strategically use a technical-procedural
management approach to have to avoid dealing with our inherent
rights. They try to eliminate any reference to Aboriginal title and
rights, because they enshrine our own indigenous jurisdiction that
they try to undermine at any costs. All management agreements
are to be signed under provincial authority and processes are used
to create dependency and engage our technicians and chiefs in
government dominated negotiation processes that aim to
extinguish our Aboriginal Title and rights.
The rights of indigenous peoples need to be included in
any Crown and third party activity in our watersheds that will
affect our traditional values and activities. In particular a
monitoring system needs to be established that will monitor the
impact that commercial values and activities have on our
traditional values and activities. It is clear that the negative

impact that has taken over the last hundred years has resulted in a
major problems like the present diabetes epidemic in our nation.
It is my position that the rampant exploitation of our traditional
territories is having a real physical impact on the lives and health
of Secwepemc peoples even leading to early deaths (very low
average life expectancy).
In this regard special attention should be directed toward
doing a "health impact assessment" in terms of measuring the
human cost of losing access to traditional foods in our diet. The
issues of human health and the environment have to be seen as
closely interlinked and connected. The Skwelkwek'welt
Protection Center near Sun Peaks is primarily opposed to the
expansion of Sun Peaks Ski Resort because of the impact it will
have on our environment and the habitat of the animals.
Increased tourism activities in the area will result in the curtailing
of traditional activities. In fact the present volume of tourists and
tour operations is already causing problems between commercial
tourism and traditional land use and occupancy activities. In
practical terms this will mean that traditional foods originating
from Skwelkwek'welt and contributing to Neskonlith kitchen
tables will be substantially reduced.
In addition research money has to be allocated to
researching the present level of traditional activities or
communities are engaged in. It is from this land use and
occupancy database that the actual impact of Crown and third
party activity will be measured against. Research in this respect
will have done the satisfaction of the Supreme Court of British
Columbia because this research would be essential in deciding
whether or not a business activity will potentially infringe on our
Aboriginal title and rights.
The Court of Appeal for British Columbia has established
prior informed consent as a duty on the provincial government
and third party interests. In fact the Court of Appeal found that
the Crown and Weyerhaeuser were in breach of an enforceable,
legal and equitable duty to consult and seek an accommodation
when matters respecting their Aboriginal title were being
considered. The Crown and third party interests need to
contemplate and meet with indigenous peoples to clearly get prior
informed consent in order to establish certainty and avoid
unnecessary and possibly prohibitive costs.
In conclusion it is clear that the Haida decision has
established a "duty" on the provincial and third party interests to
consult and accommodate our Aboriginal interests. This will
mean that they will need to come to some kind of terms that are
mutually acceptable. Therefore it is our responsibility to our
peoples to demand from government and industry to be dealt with
in good faith in order to achieve certainty. It will require a high
degree of political will on our part to get the federal and
provincial governments to realize that the business as usual
approach will not work. In the final analysis what we get from
the governments and industry will reflect our political
determination to stand up for our rights as expressed in the Haida
decision.

17

SKWELKWEK'WELT MEETS INTERNATIONAL HUMAN AND INDIGENOUS
RIGHTS MONITORS
(March 20,2002) Skwelkwek'welt Protection Center
Number 6 has been set up at the entrance of Sun Peaks Ski Resort
to protect Aboriginal Title and ensure the accommodation of
indigenous interests. The recent Haida decision of the BC Court
of Appeal clearly established the requirement of consultation of
Aboriginal people prior to developments on their traditional lands
and of accommodation of their interests. No steps in that
direction were ever taken by Sun Peaks Ski Resort who
unilaterally proceeded with its expansion plans despite the explicit
opposition of Secwepemc land users and youth.
Instead of respecting the recent court decision Sun Peaks
issued a letter calling for the immediate removal of
Skwelkwek'welt Protection Center because they "have not
communicated with the corporation about your activities or
received our approval to carry them out". The Secwepemc
denounced this request as a mockery of the Haida decision,
which requires Sun Peaks to consult the Secwepemc in a letter
addressed to Masayoshi Ohkubo.
In the letter the Secwepemc also made it very clear:
We put you on notice that we dispute the legality and validity of
the present Master Plan and interests in land granted under it, and
assert that you must consult with the Secwepemc people to
accommodate our Rights regarding any further development. We
urge you to immediately reverse your decision and align it with
recent court decisions.
In case Sun Peaks and the provincial government want to
again go against the courts and act to remove Skwelkwek'welt
Protection Center Number 5 and 6, the Secwepemc have
established a network of support and humanrightsobservation
groups and monitors who have been placed on alert. A number of
them amongst them the Mennonite Central Committee, Christian
Peacemaker Teams, Canada-Columbia Solidarity Campaign, and
Sami delegates from Samiland. (Sapmi). These groups visited
Skwelkwek'welt this week to meet with Secwepemc and devise
plans for training for human rights monitors to be sent to the area
and support peace-building efforts. These efforts are urgently
needed in the light of on-going police intimidation and harassment
of the Secwepemc. Doug Pritchard of Christian Peacemaker
Team said, "We have worked in many aboriginal communities and
we call upon all Canadians to respect the rights of their Aboriginal
neighbors".
Sophie Aikio from Samiland stated, "the Secwepemc are
facing the same concerns as indigenous peoples all over the
world. Whatever happens in Canada affects us as well.
Indigenous peoples throughout the world are following the
situation of the Secwepemc in Canada"
Despite the concentrated efforts of the BC Government,
Sun Peaks Corporation, and the RCMP to forcibly remove and
displace the Secwepemc from their lands, the Secwepemc will
continue to occupy and use their traditional lands in
Skwelkwekwelt and other areas within their traditional territory
such as the Upper Adams where Interior holds an
illegal forest license.

18

March 15, 2002

Mr. Masayoshi Ohkubo
Sun Peaks Ski Resort/Nippon Cable
Dear Mr. Ohkubo,
In reference to your letter dated March 7, 2002 to occupants of
the Skwelkwekwelt Protection Center, we remind you that we have
evidence of our Aboriginal Title and Rights to the area you are
referring to - Controlled Recreation Agreement area adjacent to
Sun Peaks utility and maintenance infrastructure. We delivered to
the Province a Traditional Use Study ("TUS"), which is only
partially reflective of how we exercised ourrightson the land. We
enclose an affidavit prepared by Dr. Elias, which was filed in
recent Court proceedings and which establishes a strong prima
facie case of our Aboriginal Title and Aboriginal Rights.
The Secwepemc people have never given their consent
and approval of your Master Plan. We have not even been
consulted about this Master Plan; nor did the Government or Sun
Peaks make any effort to accommodate our Rights. We have
never approved the present development or the proposed
expansion plans of your resort. The Master Plan and Sun
Peaks' developments pursuant to the Master Plan infringes on
our Secwepemc Title and Rights. Our Elders, whom we take
direction from, make it very clear that they want all proposed
development outlined in the Master Plan stopped immediately.
Sun Peaks Corporation has not displayed any good faith
to negotiate or accommodate with us as evidenced in Darcy
Alexander's letter ofMarch 7th, 2002.
Our Secwepemc people have never given up our inherent
rights to traditional territories and we have maintained our
obligations to protect them. The Supreme Court of Canada
recognized Aboriginal Title in the 1997 Delgamuukw decision.
Two recent decisions of our B.C. Court of Appeal, including The
Haida Nation and Guujaaw v. Minister of Forests and
Weyerhauser, makes it very clear that Aboriginal peoples must be
consulted prior to development on their lands and that their
interests have to be accommodated even before Aboriginal Tide
has been proven in the courts. Therefore, Sun Peaks and the
Province should have consulted with the Secwepemc people
regarding the development of Sun Peaks Resort to accommodate
our interests. To date, no such steps have taken place. In fact,
our Aboriginal Title and Rights have been completely ignored
in the past. One example is the trenching of the road to Mt.
Morrisey which infringes on our Aboriginal rights in this area.

Ohkubo Letter (Continued on page 19)

Ohkubo Letter (Continued from page 18)
A second decision, Taku River v. Ringstad, also decided
that consultation to accommodate is a constitutional requirement
before a tenure is issued. In the Taku case, the tenure was
quashed; in the Haida decision, the Court stated that there was a
clear breach of duty when the tenure was issued, and ordered the
Company and the Government to engage in Court-supervised,
good-faith negotiations to create an accommodation with the
quashing of the tenure as a possible outcome.
These decisions clearly put in question the legality of
your Master Plan and opens it up for review. We have conducted
Traditional and current-use studies over the Skwelkwekwelt area.
Sun Peaks Resort has chosen not to consult with us and consider
our interests, which have repeatedly brought to your attention. It
is not the Secwepemc who have to consult with Sun Peaks on
how and where we exercise our Aboriginal Rights and Title. Your
tenure is now open to challenge, and based on the recent Court
cases, is not legal as it presently stands.
We have living Elders who possess knowledge of our
traditional activities, including our laws and uses of the land at
Skwelkwekwelt. These Elders will testify in court and provide
evidence of our Title and Rights in this area.
The arrogance displayed by Darcy Alexander in the letter
dated March 7, 2002 dishonours the courts whose decisions your
company, too, must respect. You are willfully breaching your
obligation to accommodate Secwepemc interests.
We put you on notice that we dispute the legality and
validity of the present Master Plan and interests in land granted
under it, and assert that you must consult with the Secwepemc
people to accommodate our Rights regarding any further
development. We urge you to immediately reverse your decision
and align it with recent court decisions. In the event you choose
not to, we will take further action.

NATIVES UPRISE A T SUN PEAKS RESORT
WARRIORS, NATIVE Y O U T H AND ELDERS
DEMAND SUN PEAKS " L E A V E OUR MOUNTAIN"

"This Is Our Land - Unceded Sovereign
Secwepemc Territory."

(Skwelkwek'welt (Sun Peaks), Secwepemc Territory/
March 23, 2002) Saturday, March 23, 2002 at 12:00pm Native
warriors, youth and Elders uprise at the Sun Peaks Resort.
Natives will gather all weekend at the newly established
Skwelkwek'welt Protection Centre #6, at the entrance to the Sun
Peaks Resort and on Saturday will uprise against Sun Peaks and
declare "no more conducting business-as-usual."
This month Sun Peaks has ordered and demanded Natives
to leave our homes and Skwelkwek'welt Protection Centre at
Skwelkwek'welt or they will take further action. Sun Peaks
delivered this notice accompanied by the Royal Canadian
Mounted Police (RCMP) who held a gun to a Native youths
head. This "No Indians Allowed" policy by Sun Peaks just proves
that they are continuing their "Genocidal Regime." Sun Peaks
has proven to us what they are capable of when on December 10,
2001 Sun Peaks employees gleefully bulldozed down and
destroyed two permanent homes and two of our sacred
sweatlodges, which left Native youth and babies homeless during
the winter in their own Homeland.
These acts of GENOCIDE by Sun Peaks and the
government will not be tolerated. Secwepemc Elders have stated
to our People that they want Sun Peaks off our mountain

Yours truly,
Janice Billy, Spokesperson
c.c Chief Ron Jules, Adams Lake Band
Chief Arthur Manuel, Neskonlith Band
Chief Felix Arnouse, Little Shuswap Band
Chief Stewart Phillip, Union of BC Indian Chiefs
Chief Matthew Coon Come, Assembly of First Nations
Secwepemc Chiefs
Louise Mandell, QC
Inspector Sam MacLoed
Premier Gordon Campbell
Attorney General Geoff Plant
Indian Affairs Minister Nault
International Support Groups

completely and out of our Territory. It is now time to take our
lives and future of our mountains-Skwelkwek'welt into our own
hands. Sun Peaks Resort Corporation will face the economic
hardships of waging war on the Indigenous Peoples of this Land
and Sun Peaks will not win. "We will uprise! The uprising will
continue!"
Media Contact:
Native Youth Movement
Nicole or Akila c(250)371-0361 h(250)679-3413

19

Assembly of Nova Scotia Chiefs Support
Appeal to the Supreme Court of Canada
HALIFAX, March 15 /CNW/ - The Assembly of Nova Scotia
Chiefs today announced that it has filed leave to appeal the Nova
Scotia Court of Appeal(equal sign)s decision in R v. Bernard to
the Supreme Court of Canada. At issue is the fundamental right of
Aboriginal people to hunt for food using lights.
"This is not a decision that affects one Mi'kmaq person in
Nova Scotia. The decision in R v. Bernard has the potential to
affect all Aboriginal people in Canada. It strikes at a basic
constitutional right - the methods that may be used to hunt for
food. The basic Aboriginalrightof the Mi'kmaq to harvest for
food has been affirmed by the Nova Scotia courts a number of
times, including by the Court of Appeal here," says Bruce H.
Wildsmith, Q.C., legal counsel for the Assembly. "But now the
Court has prevented the Mi'kmaq from using a controversial, but
efficient and effective hunting method."
"Preventing Aboriginal peoples from hunting for food with a
light, whether using torches, bonfires, flashlights or high-intensity
beams, limits their ability to provide food for their families," notes
Mr. Wildsmith. "Night hunting using fire, torches and other
sources of light source has been part of the Mi'kmaq culture for
centuries."
On January 16, 2002, the Nova Scotia Court of Appeal set
aside the decision of the Supreme Court of Nova Scotia and
found Allison Bernard, Jr., guilty of using a light to hunt. He was
scouting for game, intending to return the next morning to track
any animals seen. The Appeal Court determined that using a light
to search for deer at night was unsafe and that the Province,
therefore, could properly prohibit this method of exercising
Aboriginalrightsin the interests of safety.
"Safety is one issue," says Mr. Wildsmith, "but Mr. Bernard
was not charged with hunting unsafely. If he had been, there are a
number of other charges the Crown could have laid. Many people
believe, and other courts have held, that the reasons hunting with
a light is prohibited are to promote hunting as a sport and to make
a successful hunt more difficult as a conservation measure. The
Mi'kmaq leaders recognize that their people cannot hunt in a
manner that jeopardizes the safety of other people. But the
important question here is whether the prohibition on lights is
purely about safety, or has other objectives. The Supreme Court
of Canada has consistently said the Crown must justify its
limitations on Aboriginal harvesting methods, such as the use of
lights. It is important to all Aboriginal people in Canada to resolve
once and for all whether constitutionalrightsholders many
harvest using lights."
The Assembly of Nova Scotia Chiefs is a deliberative body for
the thirteen (13) Mi'kmaq Chiefs in Nova Scotia. It is supported
by two tribal councils: the Union of Nova Scotia Indians
("UNSI") and the Confederacy of Mainland Mi'kmaq ("CMM").
The UNSI represents seven bands in Nova Scotia. The C M M
represent six bands in the province: There are approximately
10,000 Mi'kmaq in Nova Scotia.
-30-

20

Poll Commissioned by Dudley George family says
Ontarians wantIpperwashprobe
Tuesday March 19,2002, 6:13 P M EST TORONTO (CP)-Most
Ontario residents believe Premier Mike Harris or his successor
should call a public inquiry into the police killing of native
protester Dudley George, suggests a new poll commissioned by
members of George's family.
The poll, released Tuesday,finds72 per cent want an
inquiry into George's death at Ipperwash provincial park in
September 1995. Asked whether they agreed the provincial
government under Harris or his successor should call an inquiry,
almost half of those said they "strongly" agreed they should.
Even among Tory supporters, almost two-thirds
responding to the Oraclepoll Research survey agreed that an
inquiry should be called. "We want the people of Ontario to know
that we really, really appreciate their willingness to listen to us,"
said Maynard (Sam) George, Dudley's brother.
"There are millions of Ontarians out there who believe that
they have to find a decent way and a fair way to sort things out."
Harris, whose successor will be chosen on the weekend, has
steadfastly refused to call a probe in light of an ongoing lawsuit
filed by George and four other relatives of the dead man.
However, the plaintiffs have repeatedly offered to drop the
wrongful death suit in exchange for an inquiry.
The suit alleges that Harris played a role in a police
decision to march on the occupied park in southwestern Ontario
to evict a few dozen unarmed protesters.
During an ensuing fracas, a provincial police officer shot
and killed George. Harris met with senior police officers in the
hours before the shooting but has always denied any role in the
events. He has launched a libel lawsuit against the Globe and Mail
for suggesting otherwise.
"I don't know what to think of that one," said George of
the Globe lawsuit. A spokesman for Attorney General David
Young said Tuesday that a public inquiry is not necessary.
"There is an independent judicial process underway that is
considering the same questions that any public inquiry would
consider," said Mark Gollom, referring to the George family
lawsuit.
The poll, which the George family paid for by taking out a
loan, also suggests that almost half of those surveyed believe
Harris has refused an inquiry because he and other senior cabinet
ministers are afraid of what it might reveal about their actions.
"He doesn't want to let the people know that the
government may be involved in the death of our brother," said
George.
In addition, almost a third of those polled believe the
provincial government was responsible for George's death.
Despite asking the five leadership candidates vying to
replace Harris about their views on an inquiry, none of them have
replied, said George, who said he remains hopeful an inquiry will
eventually be called. The poll questioned 1,025 Ontario residents
across the province at the end of last month.
A poll of this size is said to be accurate within 2.9
percentage points 19 times out of 20.

Four Yukon First Nations successfully
conclude their land claim negotiations
WHITEHORSE, YK, April 1 /CNW/ - Minister of Indian Affairs
and Northern Development Robert D. Nault today applauded
and welcomed the successful conclusion of Carcross/Tagish,
Kluane, Kwanlin Dun and White River First Nations' land claim
talks.
Negotiators for the four First Nations, the Government of
Yukon and the Government of Canada signed individual
Memorandums of Understanding officially concluding
negotiations.
"This is a landmark achievement for First Nation citizens and
the Yukon. The Carcross/Tagish, Kluane, Kwanlin Dun and White
River First Nations have shown that through resolve and
perseverance, we can all work together to reach positive and
equitable outcomes," Minister Nault said. "I look forward to
endorsing the Memorandums of Understanding with the
four First Nation Chiefs and the Yukon Premier to confirm our
commitment to complete the necessary work and proceed with
the ratification process," said Minister Nault. "The completion of
agreements with the Ross River Dena Council and the Liard First
Nation in mid-April will mean that the Indian Act will no longer
apply in the Yukon Territory when all the final and self
government agreements take effect in 2003."
The Government of Canada provided a 12-month extension to
its mandate to complete the technical and legal drafting of the
four agreements along with their ratification by all parties by
March 2003.
Under their Final and Self-Government Agreements, the four
First Nations will retain roughly 4,000 square kilometres of land
and receive some $77 million, adjusted for inflation, over the next
15 years.
The Carcross/Tagish, Kluane, Kwanlin Dun and White River
First Nations will also benefit from the federal government's
Strategic Economic Development Investment Fund. They will
receive over $18 million for economic development, training and
education projects.
The Ross River Dena Council and the Liard First Nation will
resume their six days of negotiations early this month. These six
days were deferred as an expression of respect for the grieving
family of the Kaska chief negotiator.

Referendum Note: Participating in the
referendum will only serve to legitimize
Premier Campbell's goals and aspirations
when dealing with First Nations.

Native American Activist Files Lawsuit
Against FBI
Former FBI Director Louis Freeh is named as a defendant in
a lawsuit filed today by attorneys for imprisoned Native American
activist, Leonard Peltier. Freeh, along with the FBI Agents
Association and a long list of active FBI agents, are accused of
violating Peltier's Constitutional rights by making false and
unsupported statements to the public, the Department of Justice,
the United States Parole Commission, and former President
Clinton. The complaint, filed in U.S. District Court, Washington
D.C., alleges that the FBI "engaged in a systematic, and officially
sanctioned campaign of mis-information and dis-information"
designed to prevent Peltier from receiving fair clemency and
parole reviews.
The suit follows a highly controversial campaign
conducted by the FBI to stop former president Bill Clinton from
issuing Peltier a grant of executive clemency during his last days
in office. FBI agents across the nation submitted letters to the
editor, sponsored major newspaper and radio ads, and marched by
the hundreds in front of the White House to discourage clemency.
Former FBI Director Louis Freeh wrote searing letters to Bill
Clinton and Janet Reno, to urge against Peltier's release. The
campaign, which gained national attention, characterized Peltier
as a cold-blooded killer who brutally shot two FBI agents at point
blank range. Peltier's attorneys and supporters assert that this
characterization is not only false but intentionally deceptive
given the government's long held position that it cannot prove
who shot the agents. Furthermore, they say it cost Peltier, now
57 years of age and in poor health, his long deserved freedom.
Peltier has served more than 26 years in prison for the
deaths of two FBI agents killed in a 1975 shoot-out on the Pine
Ridge Indian Reservation. Peltier's supporters claim the FBI
terrorized witnesses, utilized false testimony and withheld a
ballistic test proving Peltier's innocence to gain his conviction.
Senior Eighth Circuit Judge Gerald Heaney, who denied Peltier a
new trial based on a legal technicality, has since come forward to
support Peltier's release, citing FBI misconduct. Amnesty
International, the Kennedy Memorial Center for Human Rights,
Rev. Jesse Jackson, Rigoberta Menchu Turn, Archbishop
Desmond Tutu, Corretta Scott King, and scores of Native tribes
are among those who consider Peltier a political prisoner who
should be freed.
(Complaint will be posted on LPDC web site on April 4:
www.freepeltier.org . Interviews with lawyer handling case and
spokespeople for the LPDC can be arranged).
Until Freedom Is Won!
The New Peltier Justice Campaign
Leonard Peltier Defense Committee
PO Box 583
Lawrence, KS 66044
785-842-5774
www.freepeltier. org

21

Campbell's Referendum Folly
Hasn't a Legal Leg to Stand On
The provincial Liberal are reviewing their list of
questions for the promised referendum on treaty negotiations but
that doesn't alter the fact that the plan is ill-conceived, divisive
and would ultimately be a meaningless waste of the taxpayers'
money.
Soldiering on with this misguided idea may play well
with those who are ignorant of the treaty-making process, but
anyone who has taken the trouble to read what the courts have
been saying for the past 20 years knows that a referendum will
accomplish nothing useful.
All the forcing of a referendum will do is reinforce the
growing feeling that British Columbia is now in the hands of
willful know-nothings and incompetents. It will further shred the
province's already tattered credibility with First Nations while
poisoning the atmosphere for resource companies attempting to
do future business in B.C.
The most devastating deconstruction of this referendum
nonsense comes from Louise Mandell, the aboriginalrightslawyer
who recently gave the province and timber giant Weyerhaeuser
such a legal drubbing in a Queen Charlotte Islands court case it
prompted the Haida to launch their dramatic suit claiming the
islands and surrounding seabed.
Mandell recently did a legal analysis of Premier Gordon
Campbell's referendum and its initial slate of 16 questions, now
trimmed to a less cumbersome eight. They show, however, no
corresponding reduction in the failure of understanding what they
symbolize. About two weeks ago she delivered a brief to the
Union of B.C. Indian Chiefs that dispassionately dissects this
whole Liberal referendum notion, clause by painful clause.
Campbell's referendum mania now appears to have
seized his caucus like some bizarre obsessive compulsive disorder.
It threatens to needlessly launch the province on a course that
claims to address matters that are, in fact, outside the province's
constitutional jurisdiction.
And if the referendum is to be used to frame B.C.'s
position in treaty negotiations, as Campbell suggests, it will
expose the taxpayers to costly court cases for years and perhaps
generations to come.
Mandell lists a number of areas in which the province
seeks a mandate from the voters to negotiate but where it, in fact,
has no power to act. These include matters of aboriginal title,
self-government and the signing of treaties required to empower
First Nations governments and to lift the legal burden of
aboriginal title from the Crown.
First, there is the matter of aboriginal title itself, a right
which predates the existence of B.C. and can be removed only by
the process of signing a treaty that sets out the legal terms of a
new relationship between the holders of that title and the federal
Crown.
Only Canada may conclude a treaty with a First Nation.
The provincial government may be permitted to be a party to the
negotiations, as has been the case so far, but the treaty-making
power remains exclusive to the federal government.

22

Second, Mandell points out, the province has no power
to legislate in relation to native Indians and lands reserved for
them.
This power, too is assigned exclusively to Canada by the
Constitution. This means that in constitutional law the province
has no power to unilaterally define or to extinguish aboriginal
rights - including hunting and fishing rights and aboriginal title in relation to land.
Third, there is a special constitutional relationship
between First Nations and the Crown. It is defined by the
Supreme Court of Canada as a fiduciary relationship, which
means that government must treat aboriginal peoples and their
lands differently from other Canadians.
For example, the Crown is required to protect the
aboriginal right of occupation and to ensure a fair process if First
nations landrightsare surrendered.
This, Mandell notes, is because of the legal nature of the
native interest in land which, unlike other tenures, is inalienable,
except to the Crown. The Supreme Court has ruled that the
nature of this relationship between Canada and aboriginals is
"trust like, rather than adversarial" and the provincial
government's power is limited by the requirements in law that it
not be permitted to act in fashion contrary to this fiduciary
relationship.
Finally, the province is profoundly limited in its power by
Section 35 of the Constitution which entrenches and affirms
aboriginalrightsand makes First Nations founding partners in
Canada. Their laws have become part of our law.
The brief then goes on to address, one by one, the
assumptions inherent in the questions initially proposed by the
government's referendum committee.
For example, the province has said it seeks a mandate
from the voters to negotiate municipal-style governments for
aboriginal groups. Mandell says that while the province has the
power to legislate municipal governments anywhere it likes, it has
absolutely no jurisdiction to define an aboriginal government or
interfere with aboriginal lands.
Furthermore, she observes, the province has already lost
a crucial court case on this issue and the courts affirmed, "the
continuation of a right of self-government in aboriginal peoples,
who were recognized as political communities, whose law-making
powers could not be illegally intruded upon. Instructions to the
province to butt out don't get much clearer than that.
Another problematic issue is the matter of the Campbell
Liberals wanting a guarantee that local governments can sit at
future treaty tables. Mandell points out that First Nations have
borrowed heavily against their future settlements to pursue treaty
claims under a process that was agreed upon following trilateral
negotiations between B.C., Canada and aboriginal groups. The
committee that set up the treaty process specifically excluded
third parties from the table.
Suddenly contravening that agreement without consent
from First Nations could prove an expensive decision, Mandell
says, because it would hand First Nations a strong legal case for
refusing to pay back the tens of millions borrowed to finance their
participation.
Referendum (Continued on page 23)

Referendum (Continued from page 22)
There isn't room here to go into detail of this methodical
flaying of Campbell's Referendum Folly, but if you want to read
the whole fascinating thing yourself it is posted on the Union of
B.C. Indian Chiefs Website at www.ubcic.bc.ca/referendum.htm.
Meanwhile if Campbell wanted to do something really
useful, he'd convene a summit of all the chiefs in B.C., sit with the
Legislature, respectfully ask for their views on what's necessary
to restart the treaty process, request that they politely hear his
concerns and then listen for a change instead of trying to impose
19 century ideas on a 21 century problem.
(As printed in the Vancouver Sun - March 14 , 2002)
th

st

th

BC NDP URGES SUPPORTERS TO B O Y C O T T
REFERENDUM
(April 3,2002) The British Columbia New Democratic
Party is asking its supporters across the province to boycott the
referendum on treaty negotiations now in the mail.
The announcement was made last night during a provincewide teleconference meeting of the Party's Provincial Council
delegates and constituency association representatives.
"There should be no referendum on minority rights," said
Party President Maura Parte. "It's a waste of money at a time
when the Liberals are crying poor, and instead of bringing British
Columbians together it's going to drive us apart."
"B.C.'s economy is hurting," said Parte. "Our rural
communities have already been hit hard enough - the last thing
they need is the conflict and uncertainty that this referendum will
bring."
"Only fair and honourable treaties with B.C.'s First
Nations can provide the reconciliation, the social justice and the
economic opportunity our province so desperately seeks."
"Aboriginal British Columbians are asking their fellow
citizens to show their support for the treaty process by abstaining
from participation in the referendum. The B.C. NDP is supporting
that call. We are urging our members and supporters to boycott
the referendum."
Provincial Secretary Ed Lavalle explained why the Party is
not advocating spoiling ballots.
"Aboriginal representatives see the referendum as
fundamentally unconstitutional and disrespectful," said Lavalle.
"While they have suggested negotiation and reconciliation, the
government has responded with questions which impose
preconditions on the whole process."
"The aboriginal community feels that returning spoiled or
blank ballots helps validate the referendum because it's a form of
participation."
Lavalle added that the referendum questions are so
ambiguous that there's no clear way to reject the premises of the
referendum by voting no.
"No matter how the questions are answered, the Liberal
government gets the answers it wants. That's why we're asking
supporters to simply boycott the ballot by just throwing it away or
giving it to local organizations who may be collecting unused
ballots to show solidarity with First Nations."

Referendum Questions Seek Mandate
To Perpetuate Same Outdated Colonial
Relationship
(Vancouver, Coast Salish Territory/March 13,2002) "As
First Nations, we have a unique constitutional relationship with
the Provincial and Federal governments. The referendum
questions presented today demonstrate a complete and utter
disregard and denial of our constitutional relationship." Chief
Stewart Phillip, President of the Union of British Columbia
Indian Chiefs (UBCIC), responded today to the tabling of the
referendum questions in the provincial legislation by the
Attorney General Geoff Plant.
"Our relationship with the Province of British Columbia
and Government of Canada is founded and based upon our
constitutionally enshrined title and rights. The fact that our
jurisdictional relationship is being clarified through the courts
rather than good faith negotiations is a direct consequence of the
longstanding adversarial approach undertaken by both the
Provincial and Federal Government vis-a-vis their collaborative
refusal to recognize our aboriginal title and rights." Chief Phillip
went on to state, "The non-recognition of title and rights is a
fundamental and fatal flaw of the current treaty process and is the
primary reason why more than 30% of First Nation communities in
BC have not entered the process. UBCIC represents First Nation
communities who have not entered the current British Columbia
Treaty Commission process. The combined landmass of the
member communities represents more than 30% of the province.
The provincial referendum will only serve to accelerate the
ongoing and ultimate demise of the existing treaty process."
In an effort to educate the general public about the
complexity and long history of the fiduciary obligations of the
Province and Canada, which are grounded in the Constitution of
Canada, UBCIC asked aboriginal rights lawyer Louise Mandell to
do a legal analysis of the proposed referendum questions put
forward by the Select Standing Committee on Aboriginal Affairs.
The main point of the analysis is that the Province lacks the
jurisdictional authority to undertake or implement the results
of the referendum.
Chief Phillip concluded "When read in light of the recent
court decisions of Taku River Tlingit and the Haida, the Mandell
Analysis clearly shows that the province does not have the
power to proceed unilaterally with any attempt to implement the
results of the referendum. Clearly, the referendum questions seek
a self-serving mandate to perpetuate an outdated, economically
racist and colonial relationship, of which many features have
been repudiated by the Courts. By refusing to adequately
consult and to enter into good faith negotiations, the province
has only left many First Nation communities two choices to
defend our title and rights, enter the courts or prepare for a
protracted campaign of confrontation vis-a-vis land-use
conflict arising as a consequence of accelerated resource
development
activities."
1

23

Research Update

Canada's Proposed Specific
Claims Process Raises Concerns

We would like to thank those bands that sent in BCRs and
letters supporting the UBCIC Research Program. The Research

The Government of Canada appears poised to move forward

Funding Division (RFD), DIAND, asks for this information as a

on controversial changes to the specific claims process. John Hall,

condition of funding. R F D funding enables us to continue to

the B C representative of the Specific Claims Branch (SCB), expects

undertake free research and legal analysis of specific claims on behalf

legislative changes to the specific claims process to take effect in

of B C bands.

the spring or fall of 2003.

U B C I C research staff attended the Chiefs Committee on
Claims meeting in Vancouver on February 13 and 14, 2002. The
focus of the meeting was the government's proposed Independent
Claims Body (ICB). Our article below entitled Canada's Proposed
Specific Claims Process Raises Concerns provides an overview of
the latest information relating to ICB. Staff also attended meetings
in January 2002 to find solutions to the difficulties encountered

The specific claims process has failed to address Canada's
outstanding legal obligations to First Nations. The SCB processes
approximately 14 claims per year; however, many new claims are
filed each year, adding to the present backlog of over 550 claims.
As the chart below illustrates the vast majority of claims currently
under review or in negotiation originate from B C . Some of these

trying to access M i n i s t r y of Transportation and Highways

claims have been in the system since the 1970s. The majority of

documents which have become very expensive to acquire. At the

backlogged claims have been fully researched and accepted by the

January Chiefs Council meeting we provided a review of those

SCB, but stall at the point of negotiation with the Department of

meetings. Below in an article entitled My Way or the Highway:

Justice. Increasingly, the SCB is unable to reply to inquiries made

Issues Pertaining

by Mandell Pinder about when decisions on claims might be rendered.

to Road Rights-of-Way,

we provide more

background information on matters pertaining to road rights-of-way
that cross reserve lands. Staff also attended a workshop relating to
the current Freedom of Information initiatives. U B C I C Research
will be hosting a meeting with other B C lands rights researchers this
spring to share our experience and learn from others. We hope that
working together with other researchers will help to advance land
rights research at the regional and national levels.
Below is an outline of the progress U B C I C has made toward
completing the outstanding specific claims research on our work
plan.

*Source: INAC National Mini Summary, Specific Claims Branch, Reporting Period 1970/04/01-2001/09/30
While the highest number of specific claims in the current system originate from B C , as the chart below illustrates, in terms of
settlement awards, B C lags behind.

24

•
•
•
•

The federal government alone will appoint persons to
the ICB.
The $5 million cap will indeed be imposed and include
legal fees and interest.
The Tribunal will award money, not land, as compensation.
A claim will have to be ratified by the band community prior to being heard by the Tribunal, a time-consuming and expensive process not required under current regulations.

A F N legal counsel argues, "The limitations and qualifications that have been imposed on the JTF model in the federal proposal make it a step backwards for First Nations. Rather than eliminating the conflict of interest, it will increase it. Instead of making
*Source: Minister Robert Nault, Renewing Treaties,
the claims process more fair, effective and efficient, it may add a
Claims and Self-Government Negotiation Processes to new layer of bureaucracy to the process."
Support a "Quality ofLife " Agenda
With the budget for settlements fixed at $75 million per year,
no significant increase in funds for researching claims, and negotiaIn 1996, a Joint Task Force (JTF) comprised of federal
tion funds increasing only $3 million, Chiefs wonder how the govtechnicians developed detailed recommendations for overhauling
ernment believes ICB can fulfill the objective of alleviating the backthe specific claims process. JTF argued for the need for an
log of claims and creating a more just claims process. The Chiefs
Independent Claims Body (ICB) to address the inherent conflict of
Committee on Claims rejected the counterproposal calling for a reinterest and systemic backlog of the current claims process. To
turn to the JTF principles. Since the February meeting, the Naprovide an incentive for settlement, JTF recommended that the ICB
tional Chief and Chair of the Chiefs Committee on Claims have atinclude a Commission to facilitate negotiations and a Tribunal with
tempted to meet with the Minister to discuss the matter with no
the legislative authority to create legally binding settlements. The
success.
JTF interim report tabled in November 1998 did not accommodate
More concerns about the government's attitude towards the
all First Nations concerns, nor did it address all concerns of federal
specific claims process have arisen from statements made by M i n officials and legal representatives. Nevertheless the A F N
ister Nault in a February 2002 presentation to the Reference Group
Confederacy of Nations and the Chiefs in Assembly adopted the
of Ministers on Aboriginal Policy. Instead of speaking about speJTF recommendations in good faith.
cific claims resolution properly as a legal responsibility, the MinisThe federal government tabled a counterproposal to the JTF
ter characterized it as an opportunity for the government to carry
eighteen months later, in M a y 2000. Although the government
out an "economic development" strategy for First Nations. The
adopted certain recommendations, including the Commission and
Minister asked if the specific claims process might benefit by addTribunal format, key JFT principles were altered. First Nations are
ing a focus on development. He stated: "Can and should we imparticularly concerned about a $5 million limit placed on the
pose more requirements on how First Nations use the proceeds of
settlement value of a claim which could be heard by the Tribunal
settlements? Should we manage processes to optimize needed ecofor it deviated so far from the core JTF principle that all claims
nomic development outcomes e.g. give priority to resolving claims
must be treated equally. Questions were also raised about policy
based on need or economic development opportunities available to
procedures and appointment processes because it was unclear how
First Nations? Can we turn the $2.1 billion liability to First Nations
ICB was going to incorporate new case law and be independent
for claims in our current inventory into a driver of economic develwhen the government had the final say over appointment processes.
opment?"
First Nations were also concerned with the quality of consultation,
Minister Nault also suggested that Canada is considering
as the government had withdrawn from the fruitful exchanges typical
rolling back previous decisions that progressively expanded the
of the JTF.
narrow definition of what constitutes a specific claim: "The 1991
After a prolonged period of silence, the Government of
decision to accept pre-Confederation claims produced historically
Canada answered some First Nations questions in a February 11,
and legally complex and expensive claims without general federal2002 letter from Minister Robert Nault. A t their February 13 and
provincial agreements on costs." He also hints that the door might
14,2002 meeting, the Chiefs Committee on Claims expressed great
be closing on the processing of new claims in favour of an excludisappointment with the statements contained in the Minister's
sive emphasis on the backlog: "Should we and can we suspend out
letter. The letter implied that despite First Nations' clear opposicurrent research funding to focus on the existing backlog of action the government's ICB counterproposal would remain and dicepted claims and increase settlement funds to reduce the backvert even further from JTF recommendations. The letter noted:
log?"
R e s e a r c h U p d a t e (Continued on page 26)

25

Research Update (Continued from page 25)
UBCIC continues to support initiatives to encourage the
government to return to the Joint Task Force recommendations.

My Way or the Highway: Issues
Pertaining to Road Rights-ofWay
There are a series of legal documents that have served as
significant obstacles to First Nations interests in road rights-of-way
on reserve lands. The province typically bases its claim to road
rights-of-way upon four different legally binding documents outlined below:
•

In 1911, the B C government published a public notice in
the B C Gazette announcing that roads in the unorganized
areas of B C were deemed to have a width of 66 feet.

•

The Federal Privy Council Order-in-Council 208 issued in
1930 provided for the transfer of remaining federal land in
the Railway Belt and the Peace River Block back to the
provincial government. The Order-in-Council stipulated
that all traveled streets, roads, trails and highways running through reserves are to remain provincial land and
that an additional five percent of reserve land can be taken
if needed for provincial public works.

•

Provincial Order-in-Council 1036, dated 29 July 1938,
which formally conveyed all Indian reserves in the province to the Dominion government. This order provided
that "all traveled streets, roads, trails, and other highways
existing over or through said lands at the date hereof shall
be excepted from this grant." It also provides for the resumption of up to five percent of reserve land for provincial public works. The exception is the Railway Belt and
Peace River block lands that were conveyed in 1930 under PCOC 208.

•

Section 4 of the Highways Act provides that roads where
public money has been spent are deemed public highways.
The Ministry typically uses highways maintenance records,
detailing expenditures of public monies on the roads to
claim their interest in the road.

Recent court decisions may challenge some of these legal
instruments. The Osoyoos v. Oliver ruling stated that Canada cannot
extinguish a reserve interest in land without demonstrating a clear
and plain interest to do so. In their December 2001 summary of the
decision Mandell Pinder noted:

26

The approach of the Supreme Court of Canada is to
find a way for the Indian interest and the public interest in the reserve to co-exist. The fact that reserve lands may be needed for public purposes does
not trump the Indian interest. This is in line with the
reconciliation approach, which the Court articulated
in Delgamuukw....When the public interest is involved, instead of the fiduciary obligations of the
Crown being diminished (as Canada has argued),
the fiduciary obligations are amplified
First
Nations will want to review the history of "takings"
of their land for the use by public utilities. The
Osoyoos case now clears the way to examine these
interests with the distinct possibility that these lands
are still in the reserve and continue to belong to the
First Nation.
Two other cases currently before the Supreme court of
Canada. Roberts v. Canada and Ross River Dena Council v.
Canada also have implications for road rights-of-way through reserve lands because both cases challenge the conventional understanding of what is required to create a reserve. The Roberts case
may offer a reinterpretation of OC 1036 and Ross River addresses
the question of what right the province had to assert powers of
resumption in 1938. These cases could test the unilateral undertaking of roadwork, road widening, and re-routing of roads through
reserve lands.
While the courts reinterpret the legality of roads through
reserve lands, one band has decided to take matters into their own
hands. The Okanagan Indian Band has recently challenged the
Ministry of Transportation and Highways (MoTH) claim to a 10kilometer section of road called Westside, running through reserve
lands south of Vernon. The Band is requiring commercial vehicles
traveling through the reserve to acquire permits and display stickers. In an interview in The Penticton Herald on February 8,2002,
Chief Dan Wilson notes: "Westside Road was constructed on our
Indian Trail used by our ancestors for centuries," Wilson said. "The
governments of Canada and B C have acknowledged in writing that
more recent changes to Westside Road's alignment have clearly
placed this road on our reserve land." The Okanagan Indian Band
initiative sends a clear message to government and the public that
the traditional approach towards the roads which run through reserve land is not acceptable.
Please feel free to contact Jackie, Jody, Robyn or Arlette at
UBCIC Research (604 684 0231) if you have any questions about
the issues raised above, i f you require further information or would
like to discuss current, past, or future specific claims.

Softwood Lumber Negotiations Must
Address Aboriginal Title and Rights
"Civil Disobedience" Very Real Possibility
(Coast Salish Territory/Vancouver, February 13,2002) The
recently leaked B C Ministry of Forests' proposal for "an
immediate reduction" of opportunities for First Nations tenure is
totally unacceptable, and will only serve to increase tensions not
only with First Nations but also with Canada's biggest trading
partner, as indicated by testimony today before the US Senate
Finance Committee on US-Canada softwood negotiations.
"There is every indication that a resolution to the softwood
lumber dispute will not be possible without a significant take-back
of tenure from the major forestry companies," says Chief Stewart
Phillip. "We have an opportunity here to begin to meaningfully
address Aboriginal Title and Rights. The question is whether the
Ministry of Forests will take advantage of this opportunity for real
change, or simply further entrench the status quo."
Diversification of the actors who control forest tenure and
wood processing is an important underpinning in order to
establish competitive markets for logs in B C . To date, changes to
tenure and pricing of wood proposed by the Ministry of Forests
only enhance the rights held by existing corporate tenure holders,
allowing them greater flexibility and increasing the value of their
tenures, while reducing opportunities for First Nations and small
business owners. A leaked Ministry of Forests document
anticipates increased civil disobedience as a result.
"There is another solution," says Chief Stewart Phillip.
"Redistribution of tenure, and the creation of log markets with a
significant amount of wood flowing through them would create
new opportunities for First Nations and for all communities, as
well as for value-added ventures, while going a long way towards
resolving the softwood lumber dispute."
The Union of British Columbia Indian Chiefs, along with
92 other First Nations and non-governmental organisations sent a
letter today to US Special Ambassador Marc Racicot affirming
that the key elements of a framework for a negotiated softwood
solution must include recognition of Aboriginal Title,
environmental sustainability, tenure reallocation, pricing reforms
and strengthening raw log export restrictions.
"First Nation communities are becoming all the more
desperate and the processes the government have offered to deal
with that situation, such as the B C Treaty Commission process,
have proved to be woefully inadequate in spite of best efforts
from the First Nations' side of the table. There is no question
frustrations are growing. Rather than being in a position of
addressing this, the provincial government seems to be
marginalizing our communities even further. As frustrations
grow, the likelihood of 'civil disobedience' becomes all the more
real."
-30-

Union of British Columbia Indian Chiefs
Supports the Osoyoos Indian Band
(Vancouver, Coast Salish Territory/March 19,2002) "Forest
companies like Weyerhaeuser and the provincial government
through the Ministry of Forests must fully accommodate
Aboriginal Title interests when they contemplate timber
allocations. Today's blockade is only a warning shot of what
promises to be a protracted engagement of the Osoyoos Indian
Band with Weyerhaeuser and the Ministry of Forests." Chief
Stewart Phillip spoke from the blockade today at Weyerhaeuser's
Okanagan Falls mill.
Today's blockade is to support the Osoyoos Indian Band's
efforts to access sufficient timber supply for their band-owned and
band-operated sawmill.
The blockade was manned with 80 people from the Osoyoos
Indian Band, the Okanagan Nation Alliance and the Union of
British Columbia Indian Chiefs.
"The Osoyoos Indian Band has been a patient and willing
participant of discussions with the Ministry of Forests and
Weyerhaeuser but are now incredibly frustrated as these
discussions have yielded no results. Both the Ministry of Forests
and Weyerhaeuser must be reminded that our
Aboriginal Title is constitutionally affirmed and protected.
When the lack of results is taken into context of court decisions
like Delgamuuk'w, Taku River Tlingit and the most recent Haida
decision, it is understandable why the Osoyoos Indian Band
cannot tolerate the shameless approach of the Ministry of Forests
and Weyerhaeuser and be forced to respond with direct action."
"Weyerhaeuser and the Ministry of Forests must respond in a
significant manner to immediately address the issue of timber
allocations." Chief Phillip concluded, "It is becoming all the more
apparent that direct actions, like today's blockade, will play out
time and time again throughout this province as long as the
provincial government and third parties refuse to fully
accommodate our Aboriginal Title and Rights."
-30FOR M O R E I N F O R M A T I O N C O N T A C T :
Chief Stewart Phillip Office: (604) 684-0231
President, Union of British Columbia Indian Chiefs

Send in Your Unmarked Referendum Ballot to
the UBCIC Vancouver Office:
5th Floor - 342 Water Street
Vancouver, B C .
V 6 B 1B6

27

Eager Appetites for Oil and Gas
Provincial Government Must Address
Treaty 8 Concerns

Letter to Treaty 8 Tribal Association
January 16th, 2002

(Vancouver, Coast Salish Territory/January 16th, 2002)
Chief Stewart Phillip reacted with great disappointment to today's
failure of the provincial government to listen to the legitimate
concerns of the Treaty 8 communities. "The Treaty 8
communities are under immense pressure to protect their
traditional lands from the eager appetites of oil and gas
corporations and the revenue starved provincial government.
Treaty 8 was signed as a treaty of peace and co-existence but it
appears that the provincial government views the treaty as
nothing more than an afterthought."
The communities of Treaty 8, Blueberry River First
Nation, Doig River First Nation, Fort Nelson First Nation,
Halfway River First Nation and the Saulteau First Nation, have
stated their willingness to enter into a bi-lateral process. The
process would have served as a framework for timely
consultations on potential infringements of the oil and gas sector
activity on their treaty rights. After months of provincial
government inaction, the communities appear resigned that this
opportunity of a mutually beneficial process has passed.
Though the provincial government earns approximately 2
billion dollars in oil and gas revenue every year from the Peace
River region, the communities of Treaty 8 receive absolutely
nothing in the form of royalties and/or compensation. Chief
Phillip expressed alarm that the provincial government is
contemplating expanding oil and gas exploration in the region and
stated "It is inexcusable for the provincial government to dismiss
constitutionally protected treaty rights to fast-track an initiative
that would see a five-fold increase in drilling while First Nations
pay the social and environmental costs" Chief Phillip said.
Chief Phillip fully supports the efforts of the communities
of Treaty 8 to ensure that their constitutionally protected rights
are respected. Chief Phillip concluded "The provincial
government must not only consider the effects of their decisions
and policies on the health of the individual and on the
environment but must reconcile Treaty Rights and Aboriginal Title
of First Nations."

Dear Chief Logan:
I am writing to commend and support your recent public
statement to the Cabinet of the Government of the Province of
British Columbia. In addition, the Provincial Cabinet should
have, as a common courtesy, provided an opportunity on their
agenda to hear a formal presentation of the concerns of the Treaty
8 Tribal Association.
We were shocked and appalled by the Provincial Cabinet's
flagrant breach of protocol in relation to the recent Cabinet
meeting, which was held in Fort St. John. Certainly, fundamental
common sense should have directed the Cabinet to formally invite
your Chiefs to make the appropriate arrangements to conduct the
opening ceremonies for their meeting.
A s First Nations of this country, we enjoy distinct
aboriginal rights that are enshrined in the Constitution of Canada.
Further, the Supreme Court of Canada, which represents the
highest judicial authority, in this country, has consistently upheld
and reaffirmed our rights. Consequently, our relationship with all
other levels of government must be on a government-togovernment basis. We are not stakeholders! Delgamuuk'w clearly
states that within our proprietary interest there resides an
undeniable economic component. In short, we have every right
to expect to benefit from the natural resources within our
territories.
Successful and productive development of the oil and gas
resources in your territories shall depend on the Government of
British Columbia's active commitment to enter into "good faith"
negotiations with the communities represented by your Treaty 8
Tribal Association. Disrespectful breaches of protocol and
dismissive attitudes are not conducive to creating the political
climate necessary to reconcile Aboriginal and Crown interests in
the Province of British Columbia. In closing, we wish you well in
your efforts to establish a bi-lateral process of reconciliation.
Yours truly,
Chief Stewart Phillip, President
Union of B C Indian Chiefs

FOR M O R E I N F O R M A T I O N C O N T A C T :
Chief Stewart Phillip Cell: (250) 490-5314
President
Union of British Columbia Indian Chiefs

28

Referendum Note: Voting N O is problematic because the questions are so ambigous that
the Liberal Governmnet can interprete the
answers to reflect their political goals.

Reflections from the Land of the Great
White Cloud - Former UBCIC Employee
Recounts Experience in New Zealand
By Angie Shuter
Kia tu pu, kia hua, kia puawai.
Strive, prosper, grow - wonderful words to live by
don't you think? If only it were as easy to achieve. A s I sit
in an office over 11,000 km from home I realize that I have
at the very least begun the journey.
Approximately five months ago I left my job with the
U B C I C Research Department, gave up my apartment in the
West End, packed a suitcase full of belongings and said
goodbye to family and friends. I decided to give up the
familiar and comfortable and take off for the unknown which in this case just happened to be an internship in New
Zealand. I was not just leaving my country but was also
putting my research career on hold as I decided to explore
a whole new discipline. I accepted a placement as a
policy analyst with the Cultural Heritage and Indigenous
Issues Unit at Te Puni Kokiri (the Ministry of Maori Development) in Wellington, New Zealand. Suddenly, I found
myself thrust into the world of intellectual property and
working for an organization very different from UBCIC.
The six-month internship placement was sponsored
by the Department of Foreign Affairs and International
Trade (DFAIT) as part of the Youth International Internship
Program (YIIP) designed to give Canadians up to the age
of 30 the opportunity to gain international work experience.
My placement was organized by the Pacific Peoples'
Partnership of Victoria, B C . I was one of ten candidates
selected to take part in the 2001-2002 program and one of
four sent to New Zealand.
I wish I could say that I embraced this experience
without any fear or doubts. I wanted to. I thought that I
could. I just had not anticipated that it would be so hard to
strive, prosper and grow without your family and friends by
your side. Nonetheless, as time went by, I realized that
even though I was out of my element and learning an
entirely new field of study in an entirely different country well, I realized that I had been given a remarkable opportunity and had better make the best of it.
A s I near the end of my internship placement I look
back on what I have learned. I have traveled throughout
the country meeting people and seeing places that I hadn't
even imagined existed. I learned about the relationship
between the Maori people and the New Zealand government. I learned about the struggle to revive a language
and the pride of those who help it grow. I've seen health
centers that deal with chronic diabetes as we do and talked
with healers who have managed to incorporate both
traditional and mainstream methods of healing. I've meet
students that are learning the kapa haka - their traditional
and contemporary dances and I have found a nation whose
songs unite them. I've seen tribes that are working on

settling their outstanding treaty issues and the birth of new
means to protect their traditional knowledge. I have met
some of the greatest minds in Maoridom - the artists, the
writers, the politicians, the leaders. Families have opened
their homes to me and I have met some of the nicest
people.
I am both looking forward to reuniting with family and
friends and regretting the fact that I have to leave this
beautiful country. However, whatever the future holds I will
look back on my time here with fondness and remember
that there is a whole new world to explore if you open your
mind. Kia tu pu, kia hua, kia puawai. Strive, prosper, grow.
You will not regret it.
********************
Information of the Youth International Internship Program (YIIP) is
available on the web (http://www.dfait-maeci.gc.ca/enqlish/culture/
vouth/intern/aqp0621e.htnn ). DFAIT sponsors over 400 internships a
year in over a hundred countries. The Pacific Peoples' Partnership
(www.sppf.org) is currently making arrangement for the 2002 - 2003
internship placements. If you have any questions about the program,
contact Angie at [email protected].

Weisgerber Appointed to
BC Treaty Commission
Former native affairs minister Jack Weisgerber has been
appointed to represent the province on the British Columbia
Treaty Commission, a neutral body that oversees the treaty
process.
Weisgerber became the first minister of native affairs in
British Columbia in 1988. He was instrumental in forming the
Premier's Council on Native Affairs, which recommended an
aboriginal land claims task force be established. The task
force's report led to he creation of the British Columbia
Treaty Commission.
The principals of the British Columbia treaty process are
the First Nations Summit, the government of British Columbia
and the government of Canada. The treaty commission has five
members: a full-time chief commissioner chosen by the
principals for three years; two commissioners selected by the
First Nations Summit; a commissioner appointed by
Canada; and a commissioner appointed by B . C . The four
part-time commissioners are appointed to two-year terms.
B C . ' s position on the commission has been vacant since
Kathleen Keating stepped down. Weisgerber also serves on
the B C Hydro board of directors.

The UBCIC will still be accepting
unmarked referendum ballots after
May 15th, 2002
29

Send your
ballot to
First Nations Summit
208-1999 Marine Drive
North Vancouver B C V7P 3J3
Union of BC Indian Chiefs
5th floor 342 Water Street
Vancouver B C V6B 1B6

Take it to a
location
near you

United Native Nations
110-425 Carrall Street
Vancouver B C V6B 6E3

First
Nations
Summit

Union of
BC Indian
Chiefs

United
Native
Nations