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

1.06-01.08 Union of BC Indian Chiefs Newsletter

1.06.-01 Newsletters and bulletins sub-series

March 2002

english

1.06-01.08-13.01

30

INSIDE THIS EDITION...

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

20. Assembly 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

Chief Stewart Philip

Janice billy

periodical

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 library@ubcic.bc.ca 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 shuter@mdi.ca. 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