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Session #1 - January 18, 2005 Guest Speakers: Martha Piper, Ed John and Stewart Phillip |
| [1,1] Linc Kesler: Good evening, my name is Linc Kesler. I'm the Director of First Nations Studies and welcome to the University of British Columbia and to the First Nations Studies Program Internet Speaker Series. This internet speaker series is designed to engage the expertise of Aboriginal communities, academics and others in the investigation of important issues and through the use of advanced technology to reach a wider audience, to provide a permanent record for reference and encourage a broader discussion of these issues. |
| [1,2] This year's pilot series is brought to you by a grant from the Ministry of Advanced Education of the province of British Columbia Aboriginal Special Projects Fund. We thank the Ministry for their support of this series and Stewart Phillip and the Union of B.C. Indian Chiefs for their endorsement of our proposal to the Ministry. Before going any further I would like to acknowledge myself as a recent arrival here and a guest on the traditional territory of the Musqueam people and I would like to invite Musqueam elder Larry Grant to say a few words. |
| [1,3] Larry Grant [Larry speaks Hunquminum here] I just want to thank you all for being here on behalf of the Musqueam people here at the Longhouse at UBC in the traditional territory of the Musqueam people and I would like to thank Linc and Dr. Piper for inviting me here to speak on behalf of our people. Thank you very much. |
| [1,4] Linc Kesler Dr. Martha Piper the President of the University of British Columbia is also here tonight and we'd like her to say a few words as well. |
| [1,5] Dr. Martha Piper Well, thank you very much Linc, it's a real pleasure to be able to be here and to welcome you all to UBC and to this very special series that is starting tonight. I want to bring a few words of welcome to the speakers and participants at this opening session of what I've considered to be an innovative and groundbreaking series on First Nations governance and land claims. As you all know, I think this series will focus on the history and current state of land claims issues in British Columbia. It is being funded as Linc has just told us through a grant made possible by the Ministry for Advanced Education and we're very grateful for that funding. |
| [1,6] Land claims, Aboriginal rights and the treaty process have been long sources of dispute and debate across our province and our country. To foreground them as this new speaker series does, I think is a valuable reminder that universities have an important role to play in promoting the free exchange of ideas and in helping society to find solutions to seemingly intractable problems and bringing a group of First Nations leaders together with legal and academic experts and scholars and students and other interested parties, I think this formal aim to provide a time and a space for dialogue, trust and respect, the knowledge and the insights to be shared by the participants over the next several weeks, not just tonight, but the other series evenings will advance our understanding of some very complex topics and I think thanks to technology will be available to many people throughout the province through the internet. By permitting anyone to participate via the internet and to pose questions online to the speakers at UBC, I think this series will act as a unique, unifying link bringing individuals and communities into the discussion no matter where they may be. |
| [1,7] I am particularly impressed by the caliber of the speakers who are with us tonight but also throughout the series. This promises to be a truly valuable lecture series and dialogue one I believe will make a lasting contribution to our understanding of these issues. I want to congratulate Linc and the organizers from the Faculty of Arts, our Dean, who's with us tonight, on putting together such an innovative and dynamic program and on behalf of the entire university I offer thanks and warm good wishes to everyone here this evening, to all the participants throughout the series of what will undoubtedly be an informative and stimulating set of events. Thank you very much. |
| [1,8] Linc Kesler I would also like to acknowledge that we have with us in the room tonight many distinguished guests and leaders from Aboriginal communities as well as the leadership of our student organizations here at the university and we are very happy that you are all here and able to participate in this event. Land claims and land issues and land use are of course issues that have been at the heart of Aboriginal communities in Canada and throughout North America for a very long time. But as President Piper indicated in recent years due to court cases negotiated settlements and protests of one sort or another they have achieved again a prominence for a wider public and a new sense of urgency. |
| [1,9] Tonight we're very fortunate to have with us some exceptional leaders in helping us begin our investigation of these issues. Ed John is a Hereditary and Grand Chief of the Tl'azt'en First Nation and has served as chief of the Carrier Sekani Tribal Council and served in provincial government. He has for a long time been a member of the task group of the First Nations Summit and was one of the signatories of the original agreement establishing the B.C. Treaty Commission. |
| [1,10] Stewart Phillip is a Chief of the Penticton Band of the Okanagan Nation and has served his Band for many years in different administrative capacities and is now entering his third three-year term as President of the Union of B.C. Indian Chiefs. An organization dedicated to the defense of tribal rights and Aboriginal title and sovereignty. We're very happy that both of these leaders can be with us tonight to begin our discussion of these issues. |
| [1,11] Chief John will be speaking first following Chief Phillips remarks there will be a question period. If you are watching online you can join our online forum and submit questions to the speakers in the hall. Following the question period for those of you who are here with us tonight in the hall there will be a brief reception that we hope you will be able to join us for. To begin now, Chief John. |
| [1,12] Ed John Howdy. [Ed speaks the Tl'azt'en language here] I wanted to thank you for the introduction and the introductory words that were said. Tonight is an interesting beginning of a series on First Nations issues in British Columbia and Canada and I would suggest perhaps even Indigenous issues worldwide. This week is a bit of an interesting week and I wanted to acknowledge the Musqueam people firstly because this week there's also the 20th anniversary celebration of the landmark decision of the Supreme Court of Canada in Guerin. We all know that it has established legal foundation for the rights and rights of Indigenous peoples, the Aboriginal peoples, the First Nations people in this country but also the relationship and the obligations of the Crown when it comes to their dealing with First Nations issues. |
| [1,13] I would like to acknowledge the elder, Larry Grant, and his welcoming remarks here and as I said in my language it is important that we acknowledge the Coast Salish people and the fact that we are on their territory, the Coast Salish people from the Musqueam community and we all know the long history that they've had on this land and particularly this part of the province. I want to acknowledge Dr. Piper and the Dean as well as the organizers of this particular event for inviting me here as a representative of the First Nations Summit which is one of the largest Aboriginal organizations in this country. I wanted to say that this organization has been an advocate politically in the negotiations that are happening across this province at some 45 tables as well as in the courts in this province as well as the Supreme Court of Canada. |
| [1,14] This week is also an important, a convergence of three, I would think important separate but very in many respects similar events as I said the 20th anniversary celebration of the Guerin decision. Former Chief Delbert Guerin who is also on the Musqueam council to acknowledge you and your community's leadership in bringing forward this particularly important case, the many elders and others who have been participants and were instrumental in bringing this case forward and establishing this very important landmark responsibilities and rights of First Nations peoples. |
| [1,15] The other thing that I wanted to acknowledge this week was in the Supreme Court of Canada on the very other side of this country the Migmaw people arguing the right, the treaty right as well as an Aboriginal right based on Aboriginal title to harvest timber for their uses and those two particular cases the Bernard case and the Marshall cases are before the Supreme Court of Canada and once again we've seen right from day one when the governments of this country including the government of Canada have consistently sided with each other and not withstanding the fiduciary obligation that the government of Canada finds itself in relation to Aboriginal peoples consistently arguing on the side of governments and all third party interests when it comes to the rights of Indigenous peoples. |
| [1,16] Fundamentally, in these two cases, as we saw in the cases that were argued last spring, the Haida and the Tlingit cases, the decisions of which we heard just before Christmas in November in every case the governments have argued or their legal position or their legal strategy has been one fundamentally based on the denial of Aboriginal rights in this country. Every argument of every provincial government lawyer and federal government lawyer going back as far as the cases and I was at the hearing in Guerin right from those days the same arguments the same tired arguments have been brought forward by the governments and they have been consistently losing in the courts. They need some new ideas and perhaps institutions like the University of British Columbia and other institutions will help begin educating lawyers, non-Aboriginal peoples as well as our own people in matters relating to law and relationships and the place of Indigenous peoples in this country. |
| [1,17] The third important thing that I wanted to say that converges this week of course is the anniversary of Dr. Martin Luther King and the dream that he had and I would dare say that dream that he had did not simply apply to, in his case it was speaking for the Black people, but that dream had resonance with everyone, not just in the United States of America, but in Canada and North America and I would say worldwide as well. It was a dream that he had and as we recognize and acknowledge and celebrate his very brave words and good words about people living together. Those words were echoed in Delgamuukw in the Supreme Court of Canada when the chief justice said that at the end of the judgment the famous judgment with the famous ending that he's stating that after all we are all here to stay. And that really begs the question then about how that relationship ought to exist and what the nature of that relationship ought to be. |
| [1,18] And as Dr. Piper in her introductory comments mentioned that these are difficult issues for many people, difficult for us on our side because we have continually faced the same arguments of denial. The history of this province has been founded on one of denial, one of suppression of rights, one about marginalization of Indigenous peoples, our peoples, and not withstanding that our people have consistently brought forward the fact that we as Indigenous peoples, as Aboriginal peoples, as First Nations peoples, retain and remain consistently true to the words of our own ancestors that we stand on the teachings and beliefs and knowing that we are right in our assertions that we have rights to this land and we have responsibilities as well that flow from our prior occupation, use and ownership of our respected territories. |
| [1,19] Now, UBC finds itself in an interesting position because in the Fall I attended the court hearing again brought forward by the Musqueam people about UBC golf course. Listening to the arguments of the Crown and listening to the arguments that UBC's lawyers and you know finding myself in that really strange position of having to hear those arguments that were arguments from the Crown and UBC that were lost a long time ago in the courts. |
| [1,20] I am not saying this in any way to embarrass UBC but it is a fact. It is out there it is public and there will be a decision on that I think relatively soon but as the First Nations Summit intervened in support of the Musqueam people the chiefs in British Columbia approved a resolution that as an organization we would intervene in support of the Musqueam people as they brought forward their arguments before the Court of Appeal in this province with respect to protecting some of the lands Crown lands that are remain available from the time I believe in the mid-1970's that this community this nation filed their claim with Canada something like 1% of the Crown lands that were available some twenty five years ago now remains available 1% was there and yet at the same time both UBC and the provincial government are arguing that the Musqueam people well did they pick berries there? Did they hunt bear? Did they hunt deer? Did they have trails there? |
| [1,21] Prove to us they say in the courts that you had prior existence on this land. You know that to me when we brought forward our argument the lawyer for UBC in their written factum stated that our arguments were scandalous. Well I dare say that to have the Musqueam people prove who they are and the rights that they have is scandalous. A scandalous position for the governments and UBC to take but you know that I can say that I'm not sure Musqueam, they're a little more diplomatic about these things, but I like to call a spade a spade. It gets me into trouble a lot of times and but I know that when we stand on the teachings of our people we're on solid ground and the courts in this country have consistently ruled in support of First Nations people and will continue to do so until we see the honour of the Crown reflected in an honourable way by the Crown actors as the Supreme Court judges refer to them. |
| [1,22] The United Nations the draft United Nations Declaration on the rights of Indigenous people in Article 3 refers to these words: "Indigenous peoples have the right of self determination" that was ten years ago just a little over ten years ago when that draft or about ten years ago when that draft Declaration was adopted by the UN Human Rights Commission and it was then referred to a working group to review the draft Declaration in ten years of meetings their job was to review the Declaration and to come back with recommendations. In ten years out of the forty-five articles in the draft Declaration one gained some support. I think some twenty odd I think or nineteen some nineteen preamble statements of those I believe two had support. |
| [1,23] I attended the very last session of the UN working group in Geneva at the end of November or early December and I heard from the Canadian delegation the same tired arguments that have been brought forward in the Courts and the same arguments that have been brought forward to the negotiation tables. The strategy is fundamentally simple and deceptive and it's based on denial. It's not new I mean we see it we've seen various iterations of it over the years and it's packaged in different ways but at the end of the day the arguments are based on denial. |
| [1,24] You prove to us you are Musqueam, you prove to us you have rights, you prove to us you can pick blueberries over there and right next to it you can prove to us that you can pick blackberries and right next to it you can prove to us you hunted and you know like site specific approach that the onus somehow has shifted to our people to provide evidence to prove our very own existence. |
| [1,25] Some years ago as a student at the law school here I took a course in evidence and that course was taught by Beverly McLaughlin she was then a professor of Law and instructor and she there's a rule in evidence that hearsay evidence is inadmissible. But there are exceptions to that rule and there are six or seven exceptions I can't remember how many there are but when we got to the exceptions I had some questions about how is it that in a court that First Nations people, Aboriginal people are going to be able to prove who they are or that what rights they have if the stories, the oral histories of our people is inadmissible. So that the oral histories say that Delbert Guerin or Larry Grant that they've received from their ancestors and the knowledge that they carry within their arts how is it that they are going to be able to prove who they are and what rights they have. |
| [1,26] So that was an interesting discussion that took place with then professor McLaughlin but years later in Delgamuukw in 1997 I believe she wrote the judgment in Delgamuukw and made the right decision that oral history, elders evidence was admissible and I'm thinking maybe I did teach her something. Actually to her credit it was a very good judgment and I don't know that I had anything to do with it but you know I like to think sometimes that you have some little influence over an individual like that. |
| [1,27] In the Haida case that came down in November there was a very interesting passage that I want to read, paragraph 17:"In all its dealings with Aboriginal peoples from the assertion of sovereignty to the resolution of claims and the implementation of treaties the Crown must act honourably." |
| [1,28] Well I don't know what the word honourable is and I don't really know what it means that the honour of the Crown I haven't seen it to be honest with you because what I've seen what I think I've seen is exactly the opposite so I think the Crown may have some difficulty finding itself to act in an honourable way because it hasn't at least when it comes to Indigenous peoples, Aboriginal peoples, the First Nations peoples, I mean those are my assertions that I make and Haida as well that the court stated that treaties there are many pre-confederatation treaties and we see one of those treaties before the Supreme Court of Canada this week in the Bernard and Marshall cases as they're being argued or were argued yesterday and today treaties the court says serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty. Think about those words from the Supreme Court of Canada in a unanimous decision. |
| [1,29] Treaties serve to reconcile the word reconcile I think is important reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty that Aboriginal sovereignty pre-existed and the as we say still exists in some form we know that in the United States that sovereignty is a domestic what the Supreme Court in the Marshall decisions referred to as domestic dependent sovereignty and the sovereignty protected under another sovereignty. |
| [1,30] Haida again, paragraph 25 put simply the paragraph reads: "Canada's Aboriginal peoples were here when Europeans came and were never conquered" you know we hear time and time again what are the Aboriginal peoples talking about. Why are the Indian people and the First Nations people talking the way they are. They've been conquered the argument goes and of course that assertion and we hear it usually hear it from more radical right wing groups that they were conquered and of course the Supreme Court of Canada has rejected that assertion. |
| [1,31] But the interesting view the interesting words concept that's very much at the heart of many of the decisions is the issue of reconciliation. And the court has this to say about it, "reconciliation is not a final legal remedy" because we've seen the governments consistently argue before the courts or argue in negotiations that certainty should mean extinguishment. You know do away with the Indian issue once and for all extinguish their rights and give them a few little nickels and dimes and trinkets and call it a treaty and you know the court has rejected that approach as well. Rather the courts says it is a process flowing from rights guaranteed by section 35(1) so there's some thinking around how section 35 has really modified the kind of historical view of the relationship between the Crown and First Nations people and Aboriginal peoples in this country. |
| [1,32] As I said, fundamentally the relationship has been one based on denial and the court is slowly changing that those concepts and changing the nature of the relationship. As we sit here beginning a year it'll be a year in April the Prime Minister established a round table on the rights of a number of well the rights of Aboriginal peoples but a round table of Aboriginal issues including six areas of priority for discussion one of which is land claims and self-government issue. Others include education or life long learning are referred to and housing, health and what is referred to in Crown and government documents and the Prime Minister is we need to transform the relationship we need a transformative change those are the words that are used in all of the documents that I've seen and there's tons of those documents floating around and some of those are labeled sacred but everybody has them across the country. |
| [1,33] About transforming the nature of the relationship and in my view on that is that you cannot transform the nature of the relationship based on the status quo. You can't have a transformative relationship based on denial. You have to abandon that so we put forward the idea that the Crown must abandon the notion of terrus nullius that there was no one here when we came the notion of discovery which presupposes that Indigenous peoples because they were not Christian did not have rights relating to land that goes back into the 1400's 1500's with the so called discovery of the Americas. That concept needs to be abandoned the concept of denial needs to be abandoned the concept of suppression of rights needs to be abandoned and the concept of onus of proof on Aboriginal peoples to prove who they are and what rights they have that needs to be abandoned as well. |
| [1,34] And in its place there needs to be an explicit recognition of Aboriginal rights and Aboriginal title that they exist here and now that First Nations should not have to be put to the proof and should not have to spend years as the Gitksan and the Wet'suwet'en did, spent some $20 odd million dollars to get to the Supreme Court of Canada only to be told to go back to trial. And the governments take, have not taken the words and the principles that have been established by the Supreme Court that Aboriginal title is a legal interest in land held by Aboriginal peoples and over which as collectives Aboriginal peoples, First Nations people can make decisions which means to me that the legal foundation for our people to make decisions with respect to our traditional territories is alive and well only we haven't exercised those rights yet. |
| [1,35] In our case, at least in the case of the First Nations Summit, we have attempted to find resolution of the Crown interests the assumed Crown sovereignty with the prior existence of our sovereignty and try to find some way in which there would be a reconciliation how these two interests would co-exist, two simple principles that we've advanced consistently about co-existence, peaceful co-existence and share it. Those are the principles that have been advanced in the legal arguments or in the negotiations processes. |
| [1,36] Canada's put forward in their background paper in the (can't make out word?) round table discussions last week in Calgary two day session dealing with just the land claims and the self-government policies of the federal Crown put forward the in their background paper to move towards what they called transformative change principles that they think should be advanced mutual recognition, mutual respect, mutual benefit and sharing and mutual responsibility as forming the framework for reconciliation. |
| [1,37] Well even if those become the hallmarks or if they become the process through which we find reconciliation there's a fair amount of work to do because fundamentally in this two day discussion as I listened to every one of the First Nations leaders across the country including those in the treaty areas and those with historic treaties and pre-confederation treaties the peace and friendship treaties in the Atlantic, recognition of Aboriginal rights that the First Nations people in this country should not have to prove the existence of those rights and should not have to prove who they are. That was a consistent statement now as we see this these ideas being brought forward to a federal cabinet retreat sometime this spring and a First Minister's Conference I believe sometime in the Fall I expect these large ideas will be there. |
| [1,38] We did go through this process twice in the 1983 to 1987 Constitutional Conferences. The four Constitutional Conferences deal with section 35 rights. Ian Binnie now is a member of the Supreme Court of Canada but in '82 to '86 he was the Associate Deputy Minister of Justice and in the '83 to '87 Constitutional Conferences I think for at least two of those he was a senior lead official for the government of Canada. And in the discussions that took place we were talking about the existence of Aboriginal rights and what it meant the existence of Aboriginal title and what it meant and his words to us "sure we'll recognize Aboriginal title we recognize it when we extinguish it" those were his words I hope he doesn't have the same view now in the Supreme Court of Canada but it's going to be an interesting challenge as we try to find ways in which either on the international front when we look at the rights of Indigenous peoples and the draft Declaration with its forty-five provisions, forty-five articles and how that will be played out because as I said in that forum at the international forum or at the Supreme Court of Canada level or in the various courts in the Appeals or the Supreme Court and in this province or other provinces in this country or at the negotiation tables. |
| [1,39] The governments have consistently preserved their litigation strategy. What is driving every effort of the federal Crown is the preservation of their litigation strategy based on the fundamental denial of Aboriginal rights and Aboriginal title in this country, it's wrong. The Constitution, section 35(1) says the Aboriginal the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. They didn't say that they had to proved by Delbert Guerin and the Musqueam people and they have to go to the courts and prove it. It didn't say that. It says "are recognized and affirmed". |
| [1,40] Now consider in the Charter of Rights the right to counsel if you are charged and the right to a fair trial and the right to a speedy trial and the right to be informed of the charges that are being raised against you and imagine if you had to prove the existence of those rights that you as an individual charged with some criminal offense or traffic offense had to prove that you had a legal right to legal counsel. See, in our case somehow even though there's a Constitution that recognizes Aboriginal and treaty rights and affirms the Crown still takes the same strategy of denial and it's fundamentally wrong and they will hopefully they will come to their political senses and acting in an honourable way reflecting the honour of the Crown and reflecting the interests of citizens right across the country recognize that Indigenous people do have these rights. |
| [1,41] Now it doesn't mean for a minute that if these rights are recognized that people are going to have to leave the country or that their homes are under jeopardy. No one said that. The Supreme Court of Canada has made it very clear that we are all here to stay and we better find out what the nature of that relationship is at least as it comes to the Indigenous peoples who we represent and the interests of the Crown and however the Crown interests are represented. Right now, it has not, in my opinion, acted in a very honourable way but the opportunity is there. The courts are consistently made their views known. The Crown, the judiciary, the Supreme Court of Canada, the judiciary is a part of the Crown the honour of the Crown is being partially reflected by the decisions of the courts and by an instrument of the Crown being the judiciary. |
| [1,42] Now the executive and the members of parliament and the legislative assembly also need as Crown actors to my way of thinking right now at least, some bad actors as the saying goes, need to rethink the nature of the relationship and in this province at least we have been making a lot of effort in that regard and when you consider that the forty-five some forty-five negotiating tables in this province, First Nations tables, we've collectively had to borrow some $230 million to advance our efforts and we don't have any treaties to show right now because again at the negotiating table we come to one fundamental roadblock that the Crown refuses to recognize our very existence and the existence of the rights of our people. |
| [1,43] As long as that continues I don't know that there will be treaties in this province and I think the Crown the government of Canada and the government of British Columbia is realizing that and the sooner they get there and recognize that I think it's be a lot better. The certainty certainly that third parties industry and other are looking for when it comes to development will be there but short of that we will continue to fight our cause and we're not backing down until we know that we're on solid ground and we know that this country recognizes the rights of our people and recognizes the very existence of our peoples. That's really what we're saying it should not be a big stretch to get there but we haven't been very successful to this date. |
| [1,44] So those are the comments that I would like to share with you, post treaty I mean post Tlingit and Haida we need to establish mechanisms and institutions to implement the Crown duty of consultation and accommodations and what those mean. The very interests of our people collectively depends on that. Right now I think the government of this province at least has continually advanced on the same premise that they have prior to those court decisions that okay we've done the necessary consultation and we've provided a few dollars for accommodations and let us get on with our mining development and our forestry development, offshore and gas development. |
| [1,45] It spells trouble to me. It's not a very healthy place to be but time will tell but I want to say that those challenges that we have in front of us you know I see my friend Stewart here now people think that our organizations are constantly fighting together. We're not. We're not fighting each other we're working together in a very solid front and a very consistent way for the last two or three years quietly building our relationships. I think that First Nations at least from where I stand, are on the same page when it comes to these issues in this province. So with that, Linc, thank you for the invitation and I appreciate the opportunity to say a few words. I don't know where Linc disappeared to. Oh there you are. As tall as he is he's hard to see. Thank you very much. |
| [1,46] Stewart Phillip [Stewart speaks Nsilxcen here.] Good evening everyone, first of all I'd like to acknowledge and pay my respects to Musqueam people for graciously hosting us on their land. I've been involved in the land question issue now for about probably about 31, 32 years and when I first got involved I was considerably younger, slimmer, longer hair and when I first got involved through the Union of B.C. Indian Chiefs it was referred to as Native title. Over the years the issue has evolved and into a number of different descriptions of the issue but nonetheless to us at the UBCIC it still remains the land question. Probably more accurately the outstanding land question and it's not a new issue, our leaders have been struggling with this issue now since contact, since before the turn of the century, since the late 1800's. |
| [1,47] People like myself and Grand Chief Ed John, Delbert Guerin have dedicated most of their lives to this issue and for me it's only been 31-32 years but as long as I remain involved and hold the trust of my people I will continue to dedicating and commit my life to this issue. Now to most Canadians and British Columbians they really don't understand the issue of Aboriginal title or Aboriginal title interest. Periodically on television we see the odd evidence of unrest in our communities we see coverage of protest demonstrations, roadblocks, occupations of government buildings, large conferences and coverage of court cases and what not, but I would suggest by and large it really doesn't register very high on the Richter scale when people are hurrying off to work or to class and stopping off at Starbucks to or wherever they may energize themselves in the morning and quite often Canadian society gets swept up in international events such as the recent tragedy in Indonesia, Thailand and Sri Lanka in relation to the Tsunami disaster. |
| [1,48] But little do we realize that as we carry on with our perhaps pedestrian and mundane lives there's a very very ugly struggle going on here right here in British Columbia right here in Canada and there are hundreds and hundreds and hundreds of Indigenous people that are dying on the streets of our major cities that are dying very violent deaths in our communities. The social statistics are absolutely alarming. Homicides are on the rise, murders are on the rise, child apprehensions are on the rise and these statistics reflect the social cause of the arrogant denial on the part of the federal and provincial governments in relation to our Indigenous rights. |
| [1,49] The courts have spoken loudly and clearly and on countless occasions have confirmed and reconfirmed the existence and the reality of our Constitutional legal rights but governments, business and industry continue to reap billions and billions of dollars from the lands and resources within our territories without any consideration whatsoever to the First Nations people who hold legal title to those lands and those resources. |
| [1,50] I've spent considerable time traveling across this province and this country and I've seen the poverty that our people are enforced to endure on a daily basis up close. I've spent considerable time in the northeast and there's as we all know there's a huge oil and natural gas boom going on and there's literally billions of dollars in investments circulating in that area. The province of British Columbia was recently boasting about the royalties it was accruing I believe it was $400 million in a single month in relation to drilling permits and in terms of royalty payments it was something like $1.2 billion and yet the Treaty 8 people still continue the anguish in poverty. |
| [1,51] I was at a conference with the oil interests a couple of years ago and one of the chiefs, a lady, a woman, stood up and said that the involvement of First Nations people must go beyond packing a power saw in the bush and those are the kinds of jobs that are offered to First Nations people, slashing jobs and very menial labour type jobs while these kinds of profits are being reaped. I think that's, for me, that's the important aspect of this issue is the terrible impact it has on our community. There is a direct relation between the poverty that exists in First Nations communities that exists in places like the Downtown Eastside and what Grand Chief Ed John was talking about the non-recognition and then denial and the attitudes of successive provincial governments, federal governments and whatnot and that's what we are forced to struggle against in our daily work lives. |
| [1,52] It's been a long difficult struggle and it's obvious based on the attitudes of this provincial government the Paul Martin government that we're a long long ways from home. But as Grand Chief John has pointed out there's changes taking place within our world and for many many years there was polarization and separation between the various political groups in the province of British Columbia but quite recently we had long last realized that we need to come together we need to unite and we need to dedicate our collective efforts to the resolution of this issue and it's taken a long time for us to get to this point. |
| [1,53] Last May we organized a caravan in the province of British Columbia and there were elders and young people and students and grandmothers and aunts and uncles and toddlers that organized themselves, they fundraised and they began their journey to Victoria from all parts of the province and we arrived in Victoria we had a meeting a meeting went throughout the day and we had panels of lawyers and experts updating everybody on the most recent developments and the following the day we marched down the legislature. |
| [1,54] And during the organizational phase of this undertaking one of the chiefs in the interior, Chief Gloria Morgan, had come up with the notion that everybody that participates in the caravan and the rally and the march should wear red and so word went out to the beautiful internet and everybody in their home communities began to design and come up with political slogans and so on and so forth and everyone was wearing red when they arrived in front of the B.C. legislature. We had made arrangements to bus our elders ahead and we had lawn chairs set up so they could be there when we marched the several kilometers through the streets of downtown Victoria and they heard us before we came into view but when we did come into view many of them broke down it was such a powerful and inspiring sight to see our people in those kinds of numbers expressing their solidarity and their support for one another and for the collective leadership, the senior leadership in this province. |
| [1,55] The provincial government in a desperate move to discredit what we had accomplished convened a hasty press conference and denounced what was happening and described us as misinformed malcontents and said that we did not represent mainstream Native people in the province of British Columbia. When we got to the legislature there was all of the leaders from all of the mainstream political organizations literally standing shoulder to shoulder and expressing the commitment to continue the efforts and the struggle to work together to make governments understand that we have no choice. |
| [1,56] Literally for us this is a life and death issue and we have to continue to fight this ugly fight and to continue to go to court time and time again to really prove what is so obvious that we are the First People and we hold title to these lands and the governments and business and industry are loathe to recognize that reality and continue to fight and struggle and after Delgamuukw there was a tremendous opportunity, Delgamuukw was a prescription in regard to reconciling Crown interests and Aboriginal title interests and yet government and industry immediately closeted themselves in the backroom and came up with of all things their official consultation policy without any discussion with us or anything like that and the consultation policy that they designed obviously was to minimize their obligations in regard to the decision that was handed down. |
| [1,57] This government when it first came to power as everybody remembers the first thing they did was hold the racist referendum. But that was an interesting time because out of the $2.4 million voters in British Columbia only about 700,000 actually participated and many many of the people that participated purposely spoiled their ballots and sent those ballots to our organizations. So we had these huge boxfuls of spoiled ballots and they sent letters and small notes and cash donations and what was really valuable about that particular moment in our history was we started to build a coalition and it was conservationists, environmentalists, students, disabled, the multi-faith community everybody that you could think of became a part of that coalition and every week it grew and we developed some very very valuable relationships throughout the referendum process but the referendum was purposely designed to minimize and narrow the negotiation mandates of the government negotiators so that's the kind of reality and that's the kind of world that First Nations endure in the province of British Columbia and across this country. |
| [1,58] Now unfortunately when the general public so to speak when society wants to think about First Nations people they like to harbour warm fuzzy thoughts about Aboriginal Day they like to think about First Nations people in their full regalia, dancing and things like that. That's the reality that they are comfortable with they don't want to think about the things that I described earlier about the terrible terrible living conditions that our people endure on a daily basis. So somehow we have to enlarge our circle and more and more people have to become award of the reality of this terrible injustice this national disgrace that exists here in Canada and we have to in whatever small way we can as individual human beings to be part of the solution. |
| [1,59] During the referendum campaign, throughout that campaign every press statement every public statement I made I said the referendum is not the issue, reconciliation is the issue. And reconciliation is a process it's an ongoing process and it's never-ending but that's what needs to happen between the Indigenous people that whose homelands comprise the province of British Columbia and all of the people that have made that decision to come here and raise their families and we need to convince government and industry that we need to share this land in an honourable way where there's fair and equitable distribution of the wealth that comes from the land that's what the challenge is that's what the challenge has always been and that's what the challenge will remain and we have to elect governments that understand the need for that to happen we have to elect leaders that understand that we need to work together not just the First Nations leaders but all leaders that have it in their heart to struggle for social justice not only in all points of the globe but right here at home and those are the kind of relationships that we have. Today I just came from a meeting with two lawyers one of who was involved in the Haida case and we spent hours and hours talking about strategy and what we need to do at this point to ensure that the government isn't able to side step this decision like they did the Delgamuukw decision. Previous to that meeting we were on a national television conference talking about a similar situation with respect to Indigenous people but far more grave. |
| [1,60] There's a terrible struggle going on in Guatemala and there's a Canadian mining company "Glammis Gold" I believe that's attempting to put a mine in and Indigenous people are opposing it. The first thing the Guatemalan government did was bring in hundreds and hundreds of troops there's been one First Nations or Indigenous leader killed and apparently one is wounded and isn't expected to live but it's the same struggle. |
| [1,61] Fortunately we are not faced with those extreme conditions in North America or in Canada but nonetheless as I stated earlier this is a very ugly and tragic struggle for all of us so with that again I would like to pause for a moment and recognize all the good work that Grand Chief Ed John has done over the years and the difference he's made in ensuring government hears our voice and I would like to thank each and every one of you for coming out this evening and sharing your time with us and hearing our story. I'm a grandfather, a very proud grandfather, five grandchildren, we have the sixth on the way and my wife Joan and I, I'm her husband, that's the way...I'm Joan's husband we have six grown children ranging from ages from 25 - 35 and it's the grandchildren that really make a difference in understanding the need to do everything to do our utmost collectively together to bring justice to the Indigenous issue and to all us so with that I appreciate your time and your patience. |
| [1,62] Linc Kesler We now have time to have some questions from both on the floor and also from our internet viewers. If you do have a question from the floor please stand and tell us what it is and I will repeat as well as I can your question so that it can be heard by people who are watching online. |
| [1,63] The question is what company is in Guatemala in reference to the last point. If a person or corporation commits a crime in another country are they subject to prosecution and here as well? |
| [1,64] Stewart Phillip There was a number of people on the teleconference and there were people from social justice networks and whatnot I believe the name of the company is Glammis Gold, Inc. or something like that and there's been enquiries made to the consulate and whatnot to the ambassador there's all kinds of things that are happening right now I understand there was a story run in The Globe the other day but the issue is going to gain a great higher profile because there's a lot of people internationally that are getting involved in this and whatnot. |
| [1,65] Our struggle with Indigenous people quite often not only deals with issue here in North America but also throughout the world so there's been a lot of solidarity and efforts made between ourselves and Mayan people in Chiapas during the uprising several years ago and whatnot so we have a very wide spread network throughout the world and we just can't sit idly by while Indigenous leaders are being killed because they're attempting to protect the interests of their people. So that's why we got involved in the issue. |
| [1,66] Linc Kesler The question is for Chief Ed John and with reference to remarks he made about the government strategy denial. The question is, is it also a strategy of ignoring where the government simply ignores the results of...ignores the claims being made or in some cases judgments made that are unfavourable to the government and there was a citation of the court case in Georgia I believe that case was in the early 19th century. |
| [1,67] Ed John I believe that the case you're referring to is State of Georgia, it's one of the so called Marshall trilogy and in that I recall the decision by the Supreme Court of the United States on the rights of the Indigenous peoples there and when that decision came down I was, I can't remember the president's name but famously remarked well you make the law and now you enforce it. |
| [1,68] That's a really consistent pattern I believe that we think exists certain, certainly I think it exists in this province, Delgamuukw is a very good example of that the Supreme Court of Canada established important legal principles that that Aboriginal title to the land is a right in section 35(1) under the Constitution of this country the 1982 Constitution and that Aboriginal title has never been extinguished. We heard that in the Sparrow case that out of this community again at Musqueam and that in Delgamuukw again that this Aboriginal title was a collective right. It provided an opportunity as Stewart, Chief Phillip was saying it provided an opportunity to lay some new groundwork for land related relationships with the Crown. That never happened because the Crown lawyers stuck to the technical reading of that decision which was here are some legal principles go back to court. |
| [1,69] The people, the Gitksan and the Wet'suwet'en never did go back to court because they by this time had spent millions and millions of dollars which they are still paying now for the costs of the litigation. So the Crown simply took the position that the ratio as its called the holding of the case the actual decision of the case was that here are some legal principles and the actual decision was to go back to court and so I think the Crown lost an opportunity in 1997 and the years that followed but we still maintain in this day some seven eight years later that that opportunity is still there in fact it's been refreshed by the Supreme Court of Canada in the recent decisions in Tlingit and Haida. |
| [1,70] I think that the Crown has an opportunity to move forward at least perhaps in relation to the issue of their legal responsibilities to consult with and accommodate our interests our peoples interest when decisions are being made with respect to our traditional territories but not only ignoring the case but even consistently marginalizing or minimizing the impact of the decisions or even in the cases where there's very clear decisions as in Gladstone where the Heiltsuk people had proven right and Aboriginal right to roe-herring fishery and the Crown took the position well that case is a commercial right case a right to harvest roe and kelp and sell it. The government took the position that that case only applies to the Heiltsuk people it doesn't apply to anybody else even their neighbours next door. If they all want that right they're going to have to go to court and prove it. |
| [1,71] Linc Kesler The question was for Chief John and I'll see if I can paraphrase it accurately that Chief John remarked that there was some inconsistency in the court's rulings and rights but was there a similar inconsistency in their judgments on sovereignty? So the question is does the Supreme Court have jurisdiction given the issue of sovereignty to be making the decisions on rights? |
| [1,72] Ed John I guess it's a matter of understanding the concept of sovereignty and then what it means. The courts of course always have that legal authority, week in and week out they're making decisions with respect to Crown federal and Crown provincial because within their respective jurisdictions the federal and provincial in effect have sovereign authority not in the international sense but as between the authority and the jurisdictions that each of those have. Those authorities that are retained by both of those level of governments what we have as a result of pre-confederation treaties and as a result treaties since confederation and as a result of court decisions and as a result of amendments to the Constitution as we saw in section 25 in the Charter of Rights and section 35 of the in the new Constitution that section 35 becomes a provision similar to those areas of jurisdictions that the provinces have and those areas of jurisdictions that the federal government has, the federal Crown. |
| [1,74] So it's a foundation of the recognition of rights for our peoples and as such the court I believe in the Haida case very clearly stated that this is upon which that the Aboriginal people stand as we try to find and sort out a relationship with the Crown. Crown represented on that side of the table I would suggest by the Crown provincial and Crown federal because I'm not sure if it's that much of a divided Crown it's still one Crown and it's a very...your question is a very I think a very technical kind of question but where we sit when we're sitting down with the Crown at the negotiating table we take the position that we're dealing with in fact one Crown represented by two streams of government and one federal and one provincial. |
| [1,74] In 1871 when B.C. entered confederation matters relating to Indigenous peoples or Indians and lands reserved for Indians became a federal responsibility and lands and resources were transferred to the provinces. I think that was to my way of thinking larceny on the extreme on the grandest of cases that what they did was neatly divide us between themselves the responsibilities so that if we had to sit down and negotiate with the federal government solely and only the federal government tells us well we have no land or resources to negotiate those were transferred to the provincial government in 1871 by the terms of union. |
| [1,75] Linc Kesler We have a question here from a viewer on the internet and this question is directed to Chief Phillip. Who and how can Native leaders and organizations enlarge our circle and how will this improve Aboriginal health both on and off-reserve? |
| [1,76] Stewart Phillip Well I think that we will succeed in enlarging our circle is at every opportunity to promote the need for that to happen. People that have followed these issues over the last few decades probably remember the serious divisions and political conflict between our organizations and groups and it was quite nasty. It was very, it had a very detrimental impact on the work that we were doing and whatnot and it's taken a long time to get to a point in our evolution to understand that the issues that we need to deal with are much larger than our organizations and our respective personalities and so on and so forth. |
| [1,77] So, it's very a kin to things change when they're meant to change and periodically throughout our history about every 15 years or so there's some pretty dramatic developments happen and I believe that we're on the threshold of one of those significant developments by virtue of the fact that we've managed to come together in a very real way and work together and make joint pubic statements both Grand Chief John and myself have recently went through elections and we've supported by our respective chiefs so it's a clear indication that there's a lot of support out there for unity and solidarity and a collaborative effort to work together and that has to be promoted and we have to take every opportunity to do things jointly to demonstrate to our people that we are truly committed to unity but unity with a purpose. |
| [1,78] To be able to commit our collective efforts and energies and the meager resources that we do have and the whole approach to resolving these issues is getting to a point where we also realize collectively that we have to be very very careful in relation to the cases that we get behind and support. Because in our past there has been a number of cases that have went forward that haven't been widely discussed by our various groups and had harmful outcomes. We're beginning to talk quite openly about developing a process where cases can be and we have to be sure there's support and all of the legal principles are very very strong but I think going back to the caravan and march and rally was such an incredible experience for those people those three thousand people that were there that back in our home communities they're still talking about it. |
| [1,79] And in my case, I had an Auntie who's eighty years old and I had one of my daughters and I had two of my grandchildren and two of my sons and of course Joan was there and that's the kind of dynamic that was within that group of people that went to Victoria and our people understand the need for them to be directly involved in these issue and want to be involved and want to play in role and to support the work of the leadership and conversely the leadership needs to understand that our people have a right to be involved because the Indigenous rights that we speak of are rights that go to the individuals not to hire echelons of our societies and it's the people themselves that suffer the burden of the poverty that I was making reference to. |
| [1,80] So it needs to be promoted we need to talk to our leaders, write letters to our leaders and urge our leaders to work together and when there are problems that do arise from time to time between political groups in the province and they need to be resolved very very quickly because we quite frankly don't have the time to waste on petty politics and personalities and things like that we've seen that movie for too many years and we've got to get on with the business of building a better life for our grandchildren and our children. So I think there's been a coming of age and a maturity that is developing within leadership of our First Nations people in British Columbia. |
| [1,81] Linc Kesler The question was directed to Chief Phillip and it was what can students of the university and other Aboriginal youth do to get into the struggle that Chief Phillip described earlier in their lifetime? |
| [1,82] Stewart Phillip I think that as individuals we all have unique gifts and I believe that what we need to do is to understand firstly that we have a duty and an obligation to get involved to be involved to seek out as much information as we can on the issue that impact our own families and extended families in our communities. In other words we need to do things differently we need to go beyond sitting at our kitchen table or sitting in our living rooms or sitting in bingo parlours or bars and criticize Grand Chief Ed John. (laughter) |
| [1,83] Ed John Thank you Stewart. |
| [1,84] Stewart Phillip You know we need to be the change that we want to see. And we need to challenge the status quo internally and externally because we can't keep doing the same things over and over again and expect something different to happen so it's time. It's time for the young people for the youth to stand up and be heard and to express what's in their heart and to quite frankly to you know to administer the proverbial stiff kick to the leadership. You know to get on with it. If I was, and I know this is totally disrespectful, and I knew I probably wouldn't get through the evening without being disrespectful but I think we need to approach the consider the Jimmy Pattison approach. |
| [1,85] Now we've had negotiators in the field for a long long time for twelve years. You know because of the government in intransigence and whatnot they haven't succeeded because of the refusal of government to negotiate in good faith. Having said that I think that we need to, if people can't get it resolved then they should be let go and we should find somebody that can start to batter down the wall. Young people are the majority by far in all of our band elections now you just have to look at the list of candidates and the majority of the candidates are young people. Young people are beginning to understand and sense the political power they hold and they are sick and tired of hearing stories. They're sick and tired of waiting for something to happen. |
| [1,86] So I would recommend that young people make things happen to get involved to be you know to be active to express themselves publicly to agitate and whatnot so we can work through all of the things they bring forward and begin to actually put some energy into the work that we're doing. Ed and I are you know we're not young and we've gotten to a point in this whole issue that you know we've become pretty good at where we're at in dealing with government officials and that but we will not be as effective as we can be unless the communities begin to mobilize. |
| [1,87] The umbrella group that was behind putting the march and the rally and the caravan together was the Title and Rights Alliance. It's a very loose umbrella group that represents all of the Native political groups in the province that needs to be supported those kinds of things. It's just I guess you know the simple answer is you know get active you know just jump right into the middle of it and go to the meetings that are being held in your area and get up, one thing that Joan and I always told our children when they were growing up was challenge authority always challenge authority and that's the only way that we're going to be able to improve this world because Ed said earlier and it's becoming a mantra is the status quo is absolutely unacceptable. |
| [1,88] So where has change always come from in the past? It's always come from that activism that political activism and the young people. I remember Ed when he was young you know and he was a student here and we have pictures at the Union office you know with Ed and his long hair and you know he was really strongly militant and whatnot and you know he moved through that part of his life and now he's a statesperson and whatnot, not quite an elder statesperson but he's getting there so there's, we need that kind of support. We need that kind of involvement it's absolutely essential that it happens. It greatly alarms me when these issues are being discussed in our band halls through treaty meetings and whatnot and there's just a handful of people come out and you know that the Union of B.C. Indian Chiefs is not involved in the treaty process and the communities that we represent have chosen not to involve themselves in that process. |
| [1,89] But the reality is the Aboriginal policy that is behind the government negotiating positions applies to our communities as well so we have every reason to be concerned about the practice and policy of the government to ignore and deny the existence of our rights. So it's in our best interest to see the treaty process succeed or to see a process that would encompass and incorporate all of the legal decisions and those principles like B.C.T.C. plus plus plus. It's absolutely important that we need that kind of involvement from all sectors. I've always held the belief that if our women would seriously organize themselves you know we'd be hom90e. It would be, I hope I see it before I leave this world for that to happen because that's where the real strength comes from. So, that would be my advice get involved and become active and challenge authority and whatnot. |
| [1,90] Linc Kesler Chief John would you like to add to that? |
| [1,91] Ed John Thank you that's a very good question Helen. One recommendation I would make to you as students at UBC would be to take a look at the Musqueam case regarding the golf course regarding the UBC golf course case and the transfer of that parcel of land to UBC and the arguments. And if you want we can provide you with the arguments that the government of British Columbia made the legal arguments and UBC's arguments as well through their lawyers in the B.C. Supreme Court and the B.C. Court of Appeal. In the case of Musqueam the B.C. government their argument was that Musqueam rights were they used the word "obliterated". So I was saying geez if I was a student at UBC I would be I would be doing something. But that was me when I was younger doing those sorts of things. |
| [1,92] If you want we can provide you with that information we do have all of those legal arguments and if you want you can phone our office the number is 604-990-9939 and ask for Colin Braker and ask for the factum by B.C. by the provincial government and UBC in the Musqueam court case involving the UBC golf course. |
| [1,93] I think that's one small step but the biggest step that I think as students to take is to educate yourself well. Think, be strategic in the kind of education you get and to be able to use that education because that is a powerful tool for change. It may not be immediate but as we make those changes community by community family by family individual by individual that's a powerful instrument for change. We may not see it immediately but it's something that's there and I firmly believe that it's a very good instrument for change. But the fact of the matter is we have to be patient with that strategy the reality that Stewart talks about in our communities is there and in many cases it's desperate and social and economic circumstances that our people find themselves in there's huge gaps between what we see as a Canadian average and all the statistical social economic indicators cultural indicators relative to the indicators of our community relative to the general population is a bit alarming. If those were the factors and those were the realities in the non-Aboriginal community I think there would be a revolution in this country. People won't stand for it. |
| [1,94] Linc Kesler Thank you very much. Before concluding our evening and thanking our speakers there are two points that I would like to make first is I would like to invite you all back for the next weeks in our series, next week we will have George Watts and Doug MacArthur giving us some historical background to the current situation. |
| [1,95] And the week after that we'll have Louise Mandell and Marvin Storrow talking about important court cases that have structured the contemporary environment and I'm sure we'll be hearing about Delbert again in that evening so I hope you'll be back with us Delbert. |
| [1,96] The other point that I would like to make is that we are very fortunate to have speakers such as Stewart Phillip and Ed John joining us and the other speakers who will be joining us over the next seven sessions. |
| [1,97] But we know that these issues that we are looking are extremely complex and that there are many different parts of Aboriginal communities that will not be represented by any of the speakers who speak directly and there will be many perspectives on the issue that we do hear about that will not be voiced directly by speakers in the hall. The issues are simply too complex to allow for that in such a short time. But we would urge you to join us online and in our discussion forums and help us identify the things that have not been said in the lectures that you hear the things that you believe need attention that have not gotten attention and use the opportunity of the expertise that is being shared with us and the concerns that you have as you listen to our speakers to broaden the discussion and bring more view points into play through the meetings that we have available. |
| [1,98] So please join us in those discussion groups tell us what you're thinking tell us what we're missing help us figure it out so that we can accomplish the kind of goals that have been set out for us tonight and please come back again next week. And now I'd like to thank both of our speakers I hope you will join me in doing so for their coming here tonight and their efforts and we have a final question? Okay, we have a question. |
| [1,99] The question and this is a question that could easily give us another session but it's a very important one and it's coming from the interior and the question is and please make sure that I get this right what is the future for communities that do not engage in the treaty process what is the advantage to not being in the process and where does that leave people over time, is that the question? Sort of...okay. |
| [1,100] Stewart Phillip First and foremost as I indicated in my previous remarks the Union of B.C. Indian Chiefs as you are probably aware has been in existence since 1969. The mandate of the UBCIC is to seek a just resolution of the land question. Secondly, it's to defend and protect our inherent and Aboriginal rights and title and thirdly is to improve and enhance the social and economic conditions in our community. |
| [1,101] Now the Union of B.C. Indian Chiefs has been involved in this issue ever its inception and has been involved in many of the court cases that are talked about and these kinds of lecture series and has a very long history of seeking that resolution of the land question and in an ideal world back when the B.C. Treaty process first came into existence if there had a been time and the opportunity and the inclination on the part of the parties to have a very exhaustive and comprehensive discussion on the process and how it should be framed and put together and so on and so forth I think you may have seen a different outcome in terms of those communities that made that choice to become involved in the process or to not be involved in the process. |
| [1,102] But the government was quite anxious to get this process off the ground and you may or may not be aware of the fact that B.C. consistently for many many decades refused to get involved in the issue at all. It was only after the out-going Socred government the Social Credit government under Vanderzalm commissioned a study and found that the province of British Columbia was a losing a billion dollars in potential foreign investment as a direct consequence of unresolved land claims in B.C. that they decided that they should be involved in the process. They had every reason to want to see a process that came into existence as quickly as possible. |
| [1,103] It was at that point in time that there was a parting of the ways between most bands had through their own discussions and consultations decided that they needed to embrace this opportunity to resolve the you know the Aboriginal title Crown issue. The leaders in the Union of B.C. Indian Chiefs were not satisfied nor were they convinced that the B.C. Treaty process was going to prove to be a legitimate valid and honourable process to bring about the desired effect of reconciling Aboriginal-Crown title interest. There was a huge debate that raged throughout this province over the issue and in retrospect what happened I think needed to happen the communities that did make that very courageous decision to involve themselves in this process in my view made a very valuable contribution to the whole issue of resolving the land question. |
| [1,104] The Union of B.C. Indian Chiefs has always steadfastly maintained that there needs to be a reconciliation of Crown and Aboriginal title interests in the province of B.C. but we did not believe that this process would achieve that objective and to date the concerns that were advanced by the leaders of the UBCIC have proven to be accurate. The government of British Columbia and the government of Canada are not conducting themselves in an honourable fashion and as far as both of those levels of government are concerned the value in the process is the fact that there is a process and for them it's a process of political convenience that they can raise an international forums and wherever it suits their needs to point to this process and say we have this wonderful reconciliation process it's voluntary in nature they have literally tons of information and brochures and whatnot that is distributed widely promoting this process. |
| [1,105] The unfortunate aspect is that it's long on process and short on substance. We believe that as a result of the continuing litigation that the government of Canada and the province of British Columbia are going to be forced into a situation where they're going to have to either develop a process that reflects current case law and when that happens that'll be the point in time when the Union of B.C. Indian Chiefs will sit down and enter into that kind of a process as long as those kinds of things are in place. |
| [1,106] Now, the decisions that have been recently handed down in Haida have declared that province of British Columbia has a greatly impoverished view of what their duties and obligations are to First Nations people in B.C. and we believe that there are opportunities now to pressure the government to put together a process that is far more honourable and realistic in terms of reflecting the salient points in those court decisions. But one thing that I want you to understand and that is the fact that the Union of B.C. Indian Chiefs does understand the need and the urgency to reconcile all those interests but there must be honour of the Crown and as it stands we don't owe the governments $250 million or $230 million so it's an ongoing issue. |
| [1,107] I think at the end of the day a reflection of us working together in this province that we will come up with a solution that allows all communities to be in a process that will be supported by all communities. I think when that happens we're going to meet with greater success than we currently are because of the fact that there are some communities in and some communities out so that's the, just in closing, I would like to say that we just recently had our Annual General Assembly and it was an election year and there was a lot of discussion about your question so it's not as if we're standing silently on the sidelines with our hands in our pockets you know and not considering your question and the significance of your question. Thank you. |
| [1,108] Ed John I think there were a couple of questions you asked. One that you asked Nicola, we don't know what's going on with the treaty negotiations and sometimes it's structured that way consciously. I'll give you the example is that a number of tables have asked the political leadership of the Summit to attend the respective negotiations and when we show up the Crown packs their bags and leaves and we can't carry on these negotiations because who are these guys, who's Ed John and what's he doing here? That's the reality of those negotiations it's trying to keep the some 40 odd table separate and not talking to each other and trying to cut little deals on the sides. What we've done is we've brought our negotiators as best as we can together and we meet at a fairly periodic basis to discuss what is it that is being brought forward at the respective tables and in some ways that's been successful. |
| [1,109] In the case of the First Nations who are involved in treaty negotiations what we understand and advocate is that negotiations is an honourable process. A process of negotiations to resolve differences is probably the better way than litigating these issues but what we've run into is that the process of negotiations is there's no problem with negotiations as a way to resolve issues or disputes what we are running into is our narrow, self-serving and limited government policies and the fact that when negotiators come to our table they have no mandates and that's the reality. |
| [1,110] You know when we come in good faith to these tables and when we find negotiators sitting across from us saying on this list Ed half of those we can't talk about it because we have no mandate. Issue of compensation for lands taken, Musqueam has raised that issue consistently. Governments refuse to bring it forward as an issue of negotiations for lands taken. I mean if somebody took your lands would you not think that an appropriate way to deal with it is through compensation? |
| [1,111] The B.C. government for example has taken so called call back 20% of forest license allocations the annual allowable cut for timber in the province and in respect of that they set aside $200 million for forest companies. The average is about $50 a cubic metre of timber $50 compensation for every cubic metre of timber taken that's kind of how it's working out but $200 million set aside for forest companies for the government to take back and use that a small percentage of that to First Nations communities and then First Nations communities are being asked to sign these forest and range agreements saying that in exchange for signing this agreement and in exchange for this what they call revenue sharing at $495 per person in the community that we would give up our rights and not challenge government authority or government decisions for the next 5 years. |
| [1,112] That's what's happening but in the process of negotiations we have been involved in every aspect in bringing forward issues at every possible front. We bring it forward and through political forums we bring it forward in negotiations we bring it forward and in litigation we bring it forward and the international forum as I said I attended the last session the tenth session of the U.N. working group on rights the draft Declaration and the rights of Indigenous people and every argument that government of Canada's delegation brought forward was the argument we heard in the last number of years at the treaty negotiation table because I've been involved in those negotiations table, I was able to understand the significance of what they were bringing forward because a lot of people at the international forum did not understand that although it sounded good there was really no substance behind what the government people were saying, the federal government people who were in Geneva were bringing forward. |
| [1,113] So it's like smoking mirrors and it's really when you look behind what's going on there's a lot of I think questionable conduct that we have to challenge and of course we have been involved in negotiations. It's given us a capacity it's given us skills development it's allowed us to organize albeit we had to borrow $230 million this issue came up in Calgary last week. One of the senior federal government persons who were sitting next to me said Ed you know it's you know it's everybody knows it's going to forgiven anyways. I mean they've forgiven third world debts, Canada's forgiven third world debts all over the place you know it's going to be forgiven and in our view well we shouldn't have to be borrowing money to negotiate with you about your assertion of Crown sovereignty in our territories. You are raising wealth. |
| [1,114] The wealth doesn't grow on the trees the wealth, well not literally, the wealth comes from the resources of the land, fisheries, mining, forestry comes from the land itself and that's how government's able to finance its part of the negotiations but in our case because we're not able to we don't have any independent source of revenue given the conditions that Stewart and I were describing in our communities it would not be possible for us to organize and effective negotiation process with the Crown. So, we've had to borrow money but we have consistently objected to the fact that the way the Crown has organized itself it really puts First Nations I think at a very serious disadvantage. Not only there's another issue about the loans is that when you the amount of loans that you're entitled to under the Treaty Commission process is just enough to get you through not real substantial negotiations it's enough to keep you afloat and keep you going. |
| [1,115] I think that we have been building the bridges between ourselves and our respective First Nations communities and I think it's been very constructive and very useful. The issue I wanted to close on is one on reconciliation that happens between people that happens between communities and the efforts a very good example of that is the Chinese community organized a reconciliation dinner if you want to call it that in a restaurant downtown and there's six hundred people signed up for that dinner. It was just an opportunity to get together and talk and some discussions and share some songs and a cultural evening. |
| [1,116] It was curious that it was a Chinese community that took that first step to try and build the bridges there is a bit of a parallel with the history of the Chinese community in this country and in this province in particular the issue of the head tax the way the Chinese people were treated when they became emigrants to this country. As much as the East Indian that the real true Indians, that's why we call ourselves First Nations because we don't want to steal somebody else's name. When they came to here on the west coast on the Komagata Maru they were turned back even though they were British subjects they were turned back and told that they were not welcome here and sent back to India it's a sad and sorted history of this province but that's the reality. It's going it's a bit of the Japanese Canadians we know about the internment camps in the second World war and when their boats and houses were confiscated and sold and I guess the money went to the Crown for all I know put in interment camps families dislocated that was a part of the sad and sorted history of this province and this country. |
| [1,117] I mean if we don't understand the nature of the beast the thinking that made that happen we're going to repeat that same mistake and I always I think that in the hearts of citizens in this province and in this country is still that colonial thinking that really beget this province and it's still there and somehow the challenge is really not for us to say look at yourself in the mirror but the challenge is for British Columbians to actually consider and look at the roots that they have and as the late Edward Sparrow from Musqueam said part of our job is to help non-Aboriginal people to understand themselves and their history. |
| [1,118] That might be a big challenge but we'll I think we try to do what we can in that regard and it's really coming to grips with that part of the colonial thinking and mentality that really is at the very root of this denial relationship that exists. If we're going to go in a transformative way go from this denial relationship to a process of reconciliation to another kind of relationship I think that attitude and that view and that foundation of this province needs to be examined because I think the colonial mentality is alive and well today in 2005. Thank you. |
| [1,119] Linc Kesler Would you join me in thanking our speakers for coming here tonight. At this point we'd like to say goodbye to our internet viewers and we hope you come back and join us next week and we hope the rest of you can stay for a little while and join us in some refreshments. |
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Session #2 - January 25, 2005 Guest Speakers: Paul Tennant, Doug MacArthur, George Watts |
| [2,1] Linc Kesler: I'm Linc Kesler, Director of First Nations Studies here at UBC and I'd like to welcome you all back to the second session of our first internet speaker's series on governance and land claims. And tonight to introduce tonight's guest speakers I'd like to welcome Professor Paul Tennant. Paul has just informed me that he has been working at UBC for 38 years. So, I guess we could call him old growth. And many of the people who are speaking in the series and probably many of you who are watching either here or online have been students' in Paul's classes or have worked with him in some other context so he has been involved in the things that we are talking about for a very long time. And we're really happy that he was able to come back from his retirement to work with us on this particular special project. So, Paul Tennant who will introduce tonight's speakers. |
| [2,2] Paul Tennant: Thank you, Linc. I'm honoured to be here on Musqueum territory especially in the presence of Delbert Guerin. And I'm also honoured to be introducing our two speakers each of whom I've known for quite a number of years. I'll start with Doug MacArthur since he's the first speaker. |
| [2,3] Doug first came to prominence as Rhodes scholar from Saskatchewan he went to Oxford and studied of all things Philosophy. He returned to Saskatchewan and rose in the Provincial bureaucracy to become Department Minister of Agriculture. Then was persuaded by the Premier to enter politics and was successful and was Minister of Agriculture in the Saskatchewan cabinet. When his party fell upon hard times he moved to the Yukon. And there was instrumental in setting out the Territory's land claims policy and became a very important advisor to the Yukon cabinet. When that party fell on hard times he came to British Columbia and in 1991 was the founding Deputy Minister of the new Ministry of Aboriginal Affairs. He continued in that position for some years but then once again, rose, and became Secretary to the Cabinet Deputy minister to the Premier, and indeed, the Province's chief public servant. He was instrumental in establishing British Columbia's detailed implementation of the treaty process and so therefore I am especially pleased that he is here this evening. |
| [2,4] George Watts, equally prominent in his area, a Nuu-Chah-Nulth, became chairman of the Tribal Council at a very early age, in fact, in 1970. He had been attending at UBC studying engineering but went home at that time when his uncle, a previous chairman, died, took over as Tribal Council chairman and kept that position and not through lack of competition and in some cases controversy I must say, but was re-elected every time until he retired in 1993. During that period he was also one of the two or three most influential political leaders at the province wide level in British Columbia and establishing the form of modern day Aboriginal politics in British Columbia. He was prominent at the national level appearing at Constitutional conferences debating with the politicians of the day. I am especially pleased that both of them are here this evening and I'll call upon first Doug MacArthur. |
| [2,5] Doug MacArthur: Thank you very much, Paul and Good Evening everyone. I want to thank the House of Learning and the Department of First Nations Studies at the University of British Columbia for inviting me here to be part of this very important lecture series. And I'm looking forward not only to this evening but to the continuing series of lectures that will be taking place in this setting as the weeks go by during this Term. |
| [2,6] I might say just as an additional word about perhaps of introduction to myself that for almost the past 10 years I have not been working for the government, I have been working as a teacher and as doing research as first at the University of British Columbia and now at Simon Fraser and have spent considerable time examining, studying and reflecting and reviewing on Aboriginal policy in Canada and Aboriginal policy in British Columbia and I am by no means a staunched defender of all things done in this Province in recent times or historically as you will see by my comments and I'm quite prepared to and interested in looking at constructive ways of reshaping and moving forward with respect to this important issue and particularly with respect to the land question here in B.C. |
| [2,7] I also want to open and comment and acknowledge my, our presence here on Musqueum lands and acknowledge my appreciation for over the years for the associations I've had with that First Nation. |
| [2,8] My task is to speak to, as it's been assigned, is to speak to developments with respect to the land question since the 1969 White Paper. A point in time which many people use as a base point for considering the changes that have taken place in the last 30 years or so in Canada with respect to Aboriginal and First Nations policy. Let me open, however, before I turn to the post-'69 period by making a few basic points. |
| [2,9] The first of these and the record clearly shows this and the advocacy done by First Nations and representations by First Nations over the years clearly shows this. Aboriginal title is not new. As I think everyone here knows, it governed the relationships for over 300 years between the British Crown and the successors here in North America and the First Nations of the Aboriginal people living on the lands. Importantly, it governed the practices and represented the practices and conventions as defined by the British Crown in terms of its relationships with the Aboriginal people and the tribes occupying all of the lands of North America and particularly as it applied to those lands in which the British Crown was engaged including for a very long time but part of what we now know as the United States and of course, representing all of what we know as Canada for a very long time. |
| [2,10] The second point that I want to make is that Aboriginal title defined the relationship between the British Crown and Aboriginal people occupying and living on the lands of North America and as such, it was not just a process and it was not just a meaningless concept but it had fundamental and robust content. That content was based on the recognition of the occupancy of the lands of the people, the lands occupied by the people who were there at the time the Crown arrived. And regardless of what we may say about the policy of the British Crown at that time with respect to its interpretations to sovereignty and its interpretations to lands, the British Crown did recognize the people who were occupying the lands as being fundamentally the owners of the lands. |
| [2,11] And that's what Aboriginal title was all about. It was essentially a recognition of that ownership of lands. The point that I want to make is that given its fundamental character that is to say as a set of practices in conventions that represented a recognition of title in was just the sort of thing any reasonably educated legal scholar, one would have thought, would expect to draw with respect to conclusions about the application of common law if it was ever called upon to offer protection with respect to this kind of title. The common law has fundamentally been defined in terms of property, that's where its roots really lie and the protection of property equally and without fear or favour. |
| [2,12] The fourth point that I want to make which is the obvious one and very much obvious here in British Columbia. At some point the policies governing this relationship and the policies recognizing Aboriginal title and the relationship between Aboriginal people and their lands and the relationship by the Crown was abandoned by the governments of Canada and particularly by the government of British Columbia which played a very influential role in that. Unfortunately, this is a much longer and more complicated story than I can tell in the time allotted and it's basically background to the developments that took place after 1969. I do want to make some good points as we move into the period post-White Paper. |
| [2,13] My first point, one not that everyone will agree with is that it was inevitable that Canada would have to abandon this road path that it headed out on sometime around the turn of the century and after here in British Columbia. Every possible interpretation of the rules and current conventions surrounding property, it made it inevitable that Canada would have to abandon the practices that it adopted in ignoring Aboriginal title and make amends for its confiscation of the lands of Indian people where treaties had not been negotiated and signed. No law had ever been passed changing this fact making it all but certain that something had to be done. I want to make a comment about this no law having been passed. |
| [2,14] In the context of the British conventions and practices of legal systems that was adopted here in Canada. A law could have been passed, prior to 1982, confiscating Indian lands. This is an important point to note and not from the point of view, I'm not saying that this is a law that Aboriginal people would have understood, appreciated or supported. But in terms of the British legal system such a law could have been passed as it was understood by the British legal system. Supremacy of Parliament prior to that time, prior to 1982, meant that the Parliament of Canada could have passed a law that would have stood the test of court challenge, dispossessing the Indian people of their lands. |
| [2,15] But of course, no such law was ever passed. It would be unconscionable, and beyond the pale morally and politically and certainly beyond the pale of morally and politically in the international context. But the important thing to note is that no such law was ever passed. However, domestic politics driven by interests within Canada provided a major stumbling block to Canada restoring its position and recognizing that Aboriginal title was important and needed to be recognized. And the legal profession and the courts whose members were appointed by the government were compliant players in this game of denial. Interest trumped fundamental institutional rules plain and simple. And this is where things sat up to and leading into 1969 when the now infamous White Paper in Indian policy was released as policy proposals by then Prime Minister Pierre Trudeau and Minister of Indian and Northern Affairs, Jean Chretien. |
| [2,16] This White Paper document has become infamous and is often credited to unleashing the forces that would lead to a change of thinking culminating in the negotiation of modern treaties starting in the 1970's. In fact, I would argue that very little connection that can be made between the defeat of the White Paper and the adoption of the policy of the government of Canada first and eventually the government's, the government of British Columbia with respect to recognizing and negotiating treaties with a recognition of Aboriginal title. The factors that really contributed to change fall into three categories. |
| [2,17] First, First Nation perseverance, the one thing that must never be ignored or underestimated and I know that I don't have to tell this audience is the perseverance of Indian people and their leaders over the dark years when dispossession of the lands was considered to be policy acceptable in the Canadian context. Of particular note are the tribes of British Columbia and the First Nations of British Columbia who worked long and hard against what appeared to be impossible odds for over a hundred years. |
| [2,18] Another group who played an important role were supportive activists and Paul Tennant has written about this, social activists and other activists who provided help and support including a number of church leaders, a small number of lawyers, some public servants, some anthropologists and others concerned about justice and the conditions of Aboriginal people. |
| [2,19] A third group who made a contribution to the changes that took place were legal activists. A small group of legal scholars and people working in the legal profession who were intertwined with the social activists I mentioned really began work in the late 1960's and early 1970's in response to the demands and urgings of Indian people and Indian leaders, First Nations leaders, that their case get a hearing before some adjudicating body. |
| [2,20] In this group, one person stands out above all others in the legal profession who were all at that time non-First Nations people of course, one person stood out and that person is Tom Berger who took the now famous Calder case for the Nishga people through the court system all the way up to and including through the Supreme Court. He was a thinker, an educator and a legal scholar. And he saw that the practices and conventions that had been followed over 300 years with respect to the acquisition of Indian lands were informed by common property law of the times and could be construed as having been incorporated and protected by such law in the sense of being such an entrenched practice as to be enforceable by the courts as part of the overall common law property regime. |
| [2,21] I'm not going to say anything about the Calder case in detail. We're all, I think, here familiar with that but it did play an important role in shifting thinking and policy going into the 1970's and beyond. The simple acknowledgement by six of the seven judges that Aboriginal title as recognized historically in policy going back to pre-20th Century and that that was potentially subject to common law protection had a fairly significant effect on ideas and eventually practices about the land question. But I do want to make a point, that was it was not inevitable that treaty negotiations would follow from the Calder case. That decision while important was very general in its intellectual construction and granted no direct title to the Nishga. |
| [2,22] The government of the day clearly saw two possibilities getting to this period. One was to bide its time, and see if any further decisions made by the Supreme Court would support First Nations demands. Two alternate possibilities I should say. Another possibility was to take away the risk through legislative action that is to say to take action to try to block what was happening. Both of these kind of options were seen as kind of unpalatable and not really choices that were available. |
| [2,23] International pressure was building on Canada on this question. The fact that major parts of Canada were developing and prospering on lands that never been acquired through purchase of treaties from the Aboriginal people occupants was being widely discussed in international forums. It was becoming harder and harder for Canada to maintain its moral force in a world in which leading nations were committed to reconstruct societies in the wake of the old colonial order. Canada wished to be a progressive leader in these efforts but was risking becoming a rogue state in international pariah as a result of its Indian land policies. |
| [2,24] As I mentioned before, Indian leaders and organizations were a real force to reckon with following the White Paper. They held a high moral ground and debates with the government particularly at the federal level and they had effectively forced the government to provide substantial funds to support their political efforts. And then there was Quebec. |
| [2,25] Whenever national policy shifts in Canada one should always ask what role Quebec politics played in the decision. In 1970, again, I think this is well known that the Quebec government announced an immense plan for development on Cree and Inuit lands around James Bay for the purposes of hydro development. The Quebec was anxious not to have Cree and Inuit legal, political and international demands block or disrupt its plans. It was demanding of the government of Canada that it proceed with negotiations based on a recognition however informal or however much based on law a recognition of the occupancy of the Cree and Inuit people on those lands. |
| [2,26] What the Quebec government wanted was certainty respecting title to the lands and waters involved. And what they wanted and needed was that the Cree and Inuit people cede any title they might have; a further factor putting pressure on Canada was policy developments to the United States. |
| [2,27] In particular, in Alaska. Alaska was expected to be a huge new source of oil and gas for the U.S. Native claims were a major issue blocking the ability to proceed. In the Land Claims Settlement Act of 1971, an Act enacted by the US Congress. Native claims in almost all of Alaska were extinguished in exchange for approximately one ninth of the States' lands plus $962 million in compensation. |
| [2,28] Clearly with all these pressures, the Government of Canada had little choice but to make change. And after the Calder case came down in 1973, the federal government implemented its new so-called Comprehensive Claims Policy. A policy that would apply where treaties had not yet addressed Indian title and land ownership. This required claimants to include in their settlements, as also well known I think here, their agreement to cede, release and surrender all Aboriginal rights that might have existed prior to settlement into perpetuity, which became known as the extinguishment clause. |
| [2,29] In 1981, the policy was amended to specifically rule out the consideration of self-government or constitutional reform as part of the claims negotiations. By this time, self-government played squarely on the agenda by First Nations and Aboriginal organizations and there was a considerable effort to make self-government a right, a recognized right, similar to land title in terms in driving policy. A bit more about that later. Even notwithstanding the fact that the government brought in the new policy on, as they call it, Comprehensive claims, they did not want to use the word treaty, very little progress was made in treaty negotiations during the 1980's. As a result, negotiations proceeded in the Nishga's Yukon, Dogrib and Sahtu areas in the Mackenzie Valley with little progress made in any of them. |
| [2,30] The only place where progress occurred was with the Inuvialuit of the Western Arctic with a settlement in 1984. Progress accelerated however in the late 1980's and the early 1990's with the Inuit in the Eastern Arctic settlement in 1991, the Yukon umbrella agreement, and the Gwich'in Settlement in the Mackenzie Valley delta in the 1982. |
| [2,31] Looking at the period, post-1969 White Paper, an important development that took place in 1982 was the inclusion of certain clauses in the Constitution Act which shifted the institutional context of rights and title in Canada quite considerably. At the time that the clauses to be included in the Act were negotiated with the Provinces, there was considerable disagreement amongst the provinces and the premiers and the prime minister as to whether Aboriginal rights should be protected in a way similar to other rights that were being included. |
| [2,32] Intellectually it seemed hard to defend that they were not an important part in Canadian rights. However, the difficult question of exactly what these rights were and where they were located kept arising with few clear answers. Furthermore, some provinces objected on political and policy grounds to such inclusion, with British Columbia and Alberta being the most prominent, although not the sole opponents. |
| [2,33] In the end, it was agreed that Aboriginal rights would be included with Saskatchewan, Ontario and New Brunswick taking that position that no rights package can be credible without the inclusion of Aboriginal rights. And thus we got section 35 clauses which provided constitutional protection to all existing Aboriginal treaty rights and section 25, which ensures that the guarantee in the Charter of Rights and Freedoms shall not be construed so as to abrogate or derogate from any Aboriginal treaty or other rights or freedoms pertaining to Aboriginal people. |
| [2,34] These provisions never did have strong support of the time from Aboriginal leaders particularly because they were not as precise as Aboriginal leaders wanted and not as strong as Aboriginal leaders wanted. There was a commitment made in that time. Aboriginal leaders were pushing for an inclusion of a definition of self-government as many of you remember in the 1982 discussions. They did not get that, any specific reference to self-government, but there was a commitment to process of series of conferences to follow. They lead to no progress at all to speak of. |
| [2,35] There was then an attempt to include self-government as a right in the Charlottetown Accord and again, many of you remember that that went down to defeat. And that was pretty much the end of any formal constitution recognition of self-government or other rights in the constitution beyond those that have now been recognized. I want to make a couple of observations about this constitutionalization process, the inclusion of rights in the Constitution of 1982, and the dealing with them afterwards. |
| [2,36] The first thing to note, I think we all know, is that the inclusion precluded any possibility of legislation parliament that could extinguish Aboriginal rights and title or that could set up a regime in which First Nations could be subjected to a regime to rules that would enforce consent to any settlement. In other words, the provisions ruled out any form of binding arbitration to settle claims or rights, disputes they required. Settlements would require the consent of First Nations affected. |
| [2,37] Secondly, the Constitutional provisions set in play a process that has seen Aboriginal rights become an embedded part of rights, narratives and reasoning. By creating a new legal rights culture that has evolved and matured through scholarly writings by the legal community, factums and court judgments. Aboriginal rights have been subject to the same kind of reasoning and thought as rights more generally. The most important result of this reason following upon rights has been a definitive determination that Aboriginal rights are a definitive determination by the courts that Aboriginal rights are like all other rights in a free and democratic society, not absolute. |
| [2,38] The virtual capture of policy, dialogue and decision making with respect to rights by the legal fraternity and by the cases brought forward by the legal fraternity has created a complex and flexible interpretation through which Aboriginal rights may be infringed by government provided in follows some basic procedures. Governments now claim, and the courts are going along, that there is no absolute criteria to resolve what is an acceptable process with respect to infringement other than it must follow the rules of consultation and accommodation. |
| [2,39] There are no hard and fast rules set up with respect to the obligations of government other than the government is in principle thought to be obligated to provide some share to First Nations people if resources and rights are infringed upon or impacted as part of the accommodation but it seems to be pretty much settled that this share is to be capped on the basis that relative population size and not the quantum of the right and the benefits to be used as the base do not extend to benefits beyond direct benefits to government. |
| [2,40] It is hard to see how this interpretation, backed by court decisions, claim to be victories by litigators carrying these cases can be seen as anything but another form of expropriation of rights, partial expropriation, under a different name something that in 1982 was promised not to be the case. There are other observations that I'd like to make about this constitutional issue of rights, complex issues, which take the definition of rights outside of the common law now and now make them a constitutional matter which takes them away from being defined in terms of the historical context of what occurred. |
| [2,41] I don't have time to go into that further, I do have a paper, which those of you that are interested can get from me, where I speak of this bit. I know my time is running down. I want to make a couple of other observations with respect to what's happened during the 1980's and 1990's in this important period when much developed with respect to government's behaviour, government's perception, government's interpretation of Aboriginal rights and title. |
| [2,42] One of the things I speak to in my paper is the development of this theory of the modern treaty which is developed within government. This theory is based on a notion which many of you will have heard about of treaties involving exchange of rights where the First Nation in the course of settling treaty negotiation gives up if you like or releases or in some form sets aside its rights that it traditionally has had over time and substitutes those as an exchange for a new set of defined rights codified in a treaty. And that this settles for all into the future the question of the status of rights. That's one part of the fundamental theory. |
| [2,43] The second part of the theory that is very important, is that all sides are uncertain as to any possible outcome of litigation or other ways, well litigation being the only option really, to negotiation. And that this uncertainty forms all that goes on in the treaty process. And it is the uncertainty that leads each of the parties to be prepared to make sacrifices, to make compromises, to make accommodations and to reach a settlement. And the only real constraint placed on both sides, are thus, relatively simple rules of negotiations. |
| [2,44] There is no principled limit on what is or isn't acceptable to place on the table. This is all again from the point of the government theory. Fundamentally then, treaty negotiations for government are a matter of risk management. No one can know what the future can hold in the absence of treaties but we get certainty by having treaties. Therefore, know what the future will hold in a much more defined and important way. |
| [2,45] One of the developments that took place in the 1990's and George I think will speak about this I'm not going to say too much about it was the development of the British Columbia Treaty Process established here in British Columbia and of considerable interest. What really, what happened there was we had British Columbia and the government of British Columbia finally realizing during the late 1980's that it was no longer economically viable to deny that treaties had to be negotiated. It was a question of self-interest for the large of society. There was more and more growing concerns about the loss of investment, the declining efficiency in the economy and general threats to the overall economy. Leading the then Vanderzalm government to agree to begin some process of engagement. |
| [2,46] This lead to the Task Force which I think the Joint Task Force and the recommendations to set up the B.C. Treaty Commission process. The B.C. Treaty Commission Process as all of you know has been underway since 1992 and while there has been a Nisga'a treaty negotiated, a treaty which is generally considered to be the gold plate of the modern treaties to date, the current process which is really not a part of the Nisga'a negotiations the current process currently has four First Nations that have reached agreements in principle. And again, George will speak about that. But there are a lot of First Nations are in the course of negotiations, I think it's 41 First Nations in negotiations, many of whom who say they are not hopeful about the possibilities of reaching a solution. |
| [2,47] And so one of the questions that's on the agenda currently with respect to treaty negotiations, is what could be done to accelerate and improve and bring about more treaty settlements and faster treaty settlements. In my paper, I reflect on some of these. The position of the British Columbia government on self-government and the inclusion of self-government within the treaties, you probably know that the British Columbia government is not prepared to include a self-government provisions within the treaties, the authorities and so on does not recognize the inherent right and has rejected the principles that were adopted with respect to the Nisga'a treaty where for the first time, self-government was included in the treaty. |
| [2,48] The compensation issue about which I say something about in this paper, the theory of the treaty from the government perspective that I mentioned before argues that settlement should be equitable and equal on a per capita basis and not related to past use and past absorption of resources and other wealth on the lands. As a result of that, the governments do not negotiate specific compensation related to the past use of resources and lands but rather negotiate from a roughly, broadly defined value with respect to a settlement per capita for the First Nation and define the land quantum the cash quantum and that sort of thing from that point of view. That has been raised many times and I quote in the paper and others will know very well the many number of times that has been raised as a fundamental problem for some First Nations. |
| [2,49] I raise other questions in my paper about this whole, all the assumptions the government has about how much uncertainty there is and whether or not it is equally shared. This is to some degree a kind of intellectual question but for those of us who study negotiations, it's not irrelevant to probe into these questions and try to find out why it is that things are where they are. And I think that there is an argument to be made that the government is maintaining a pretense of a greater degree of uncertainty with respect to the current status of things with respect to First Nations rights and title than is actually the case. I think that introduces a significant dissidence into the negotiations. |
| [2,50] Well, I won't, I'm going to close there. I'm interested in questions and so on. I want to close by saying that I think it is important, it's important for, I'm not here speaking to First Nations people, I'm speaking to non-First Nations people, it's important for all of us to come to terms with our past with respect to the title and land question in British Columbia. There is no question, there is no question that the practices of government over a good part of the 20th century was a practice that pursued dispossession of Aboriginal people of their lands as Aboriginal people have claimed and of the resources and there was no sound legal basis for that. |
| [2,51] There was no sound policy basis for that, that Canada did in fact, assume, and British Columbia assumed the lead role in this, Canada did in fact, assume the role of a rogue nation in the international world and the world of what we might call ethical and good governance. That is a shameful period in our time. I don't believe that everyone working in government or even the largest part of working in government were driven by evil intent, I think there was a breakdown in knowledge, a breakdown in understanding. We were poorly served by the legal community, were poorly served by legal scholars, poorly served by our politicians and for that reason we are in significant difficulties with this treaty negotiation process because if it had started earlier and if had been done when it should have been done, I think we would have had the possibility of establishing a sounder more basic fundamental relationship between First Nations people and the rest of society. |
| [2,52] One can only hope that we can achieve that through the processes we now have in place. I'm still optimistic but I know that from everything all my experience it's a difficult challenge ahead. There have been significant developments since the White Paper, there has been significant change indeed some people say it's been radical change, but there's still a lot of work to be done in understanding fully the implications of, for government and in government the implications of title and rights for this future relationship. Thank you very much. |
| [2,53] George Watts: Well thank you very much. First of all I want to thank Musqueum people for this opportunity to speak on their land. I want to thank the department for inviting me to present the information that I have. I was telling Doug that he should go first and then I could correct all the mistakes he makes in his paper but unfortunately if I do that, now I'm going to use up all my time. So I think I'll just let his paper sit out there on its own. I want to basically want to talk about 1969 up to now. And the reason I do that is certainly not out of disrespect for our great leaders who came before that. We had many great leaders who kept this question alive for a hundred years. But I believe that there are other people who are more qualified to talk about them. And there's certainly a lot of literature about them that I think would be more accurate than anything that I could put together. |
| [2,54] In 1969 was the Nisga'a case, it was launched. And also, it was also the formation of the Union of B.C. Indian Chiefs. It was clear right from the beginning that the sole purpose of the Union of B.C. Indian Chiefs was the land question. And that somehow we were going to get the governments to come to the table. I at that time had became a member of what they call the chief's council which was the governing board of the Union and Delbert, who's sitting up here, was another member. Anyway, one of the things that we did as an organization is we asked a guy named Dave Fulton (sp.?), who was the Justice Minister for Mr. Diefenbaker, to start to develop a case that would look at the entire province, a claim for the entire province. |
| [2,55] Of course, the exception would be the Nisga'a and those areas which had already treaties. Now, I always thought that we got some bad advice about that and the bad advice we got was that he told us not to support the Nisga'a case. I've always regretted it from that day on that we never did support the Nisga'a case. In fact, we passed a resolution that we didn't support it. And I always thought that that was a technical error on our behalf. It's clear that the Calder case was the turning point it wasn't the Union of B.C. Indian Chiefs. It was the Calder case coming down in the Supreme Court of Canada. |
| [2,56] Now I was fortunate to be one of the few people that were invited to go along with the Nisga'a to meet the Prime Minister. That was probably one of the greatest days of my life was to sit in that room and watch Jimmy Gosnell talk to the Prime Minister. And the Prime Minister started off by saying to Jimmy, he says Jimmy perhaps you people got a little more rights than I originally thought. And Jimmy Gosnell said yeah but it took your court to tell you that, he says. And so Jimmy wasn't shy about taking on the Prime Minister. I think the Prime Minister was impressed by him. The Prime Minister loved a good fight and I think he was pretty impressed. Anyway he did say at that time that they were going to review government policy in regard to the case. He thought that the cabinet would support the change in the government's policy. |
| [2,57] What was set out from that came the new Comprehensive Claims Policy. Now one of the things that happened around that Comprehensive Claims Policy was that they also brought in a policy that they would not negotiate more than six claims at a time. Now of course, like in B.C., today you have 41 claims and clearly people aren't going to get in under that policy. But the Prime Minister did say that there is a limitation but we want to ensure the Nisga'a that they are the first ones. We will start the negotiations with them as soon as we can set it up. So the Nisga'a did enter in to bilateral negotiations with the federal government on the land question. Although the Nisga'a weren't supportive of the entire Comprehensive Claims Policy they did say that they were prepared to start off with it and try to change government's thinking in regards to some of the things which they didn't like about the policy and they did continue to lobby the government to change some parts of that policy. |
| [2,58] Now what happened in the Nisga'a negotiations is that it became abundantly clear to everybody that it was going to be a pretty tough road to hoe? if you couldn't get the people who had the land, which was the province, get them to the table. The alternative would be the federal government in fact would have to buy whatever settlement there is on land off the provincial government. I always have a story about that, I don't know if you guys watched the constitutional process, but we got to square off against Bill Bennett in the constitutional process and nobody could tell you what to say. Not even the chair, who was the Prime Minister, could tell you what he had to say so you could always throw surprises on them. |
| [2,59] So, Bill Bennett announced at that time that his government expected the federal government to buy the land off the province and settle the land claims in that fashion and that the province had no obligation to negotiate anything. So I got to the mike, George Erasmus was the National Chief, and he says that I want you to talk on this, he says, I want you to face off against Bennett. So the smartass I am, I get up to the mike and I says, excuse me Mr. Chairman, I need to get this straight in my mind about what the Premier of our province and what he's saying. Is he saying that he wants the Prime Minister to buy the land off him that he stole off the Indians? And Bennett, if looks could kill, I'd be dead sitting in that hall. He was not happy with my intervention. But anyways, that's how I saw it. It was my simplistic thinking that saw this. I mean he's asking to buy the land they stole because they did steal the land. I mean there's no other way to say it. You guys stole the land. You took what wasn't yours. So I guess I was too simple for him. |
| [2,60] Anyway, in the beginning of the 80's I guess they started, well Trudeau had this thing about bringing the constitution home. And he tried to get the Canadian people together to agree on bringing it home. And of course, he was smart enough to know that he should talk to Aboriginal people and ask them what part they thought they should be and how they should be included in the Canadian constitution. And of course, everybody said right away, are Aboriginal rights going to be recognized and respected? |
| [2,61] So, I don't know how many of you know, but we actually got put in the Constitution. There was an agreement, a late night agreement, and they agreed that section 35.1 would be the Aboriginal and treaty rights of Aboriginal people in Canada, would be protected by the Constitution. Now, sometime between that and the next morning, we got kicked out again. And we found out later on that it was Bennett and Lougheed that kicked us out. They cut a deal with the Prime Minister and said, because they weren't supporting, and they went to the Prime Minister and said, "look we're prepared to support you bringing home the Constitution, if you kick Aboriginal rights out, then we can live with it." |
| [2,62] So, of course, the Indians got a little bit upset. Everybody went to Ottawa, every Indian leader in this country was in Ottawa raising hell with the Prime Minister. I can still remember this, we finished off on a Friday afternoon and we were coming home on the 7:00 CP Air flight that goes directly to Ottawa to Vancouver. Jimmy Gosnell was on there and the plane was just loaded with Indians. We all agreed that it would be foolish for us to all go out there and talk because we knew the media was just going to be all over the airport. We said to ourselves, the best strategy is to get Jimmy Gosnell to state our position and nobody else talk. Everyone else refuse to talk to the press. So, Jimmy Gosnell comes down the walkway there at the airport, sure as hell, 20 cameras and microphones and everything and a guy named Bob Warren, he made the announcement. The people have decided that James Gosnell would be the only spokesperson for B.C. Indians tonight. |
| [2,63] So they started to ask Jimmy Gosnell, "what is your guys' position?" Well, I think I can tell this without causing any trouble. We had a few drinks on the way back home. Jimmy was pretty angry. And he came down and the first microphone that got stuck in his face, and the camera got stuck in his face, and he said "That God-damn Bill Bennett is the Hitler of British Columbia. And I'll tell you right now he's not going to do away with Indian people in this country." Well Christ, that just (sound). Next thing you know it's all over national TV, it's in international TV, all over the place. |
| [2,64] I kind of know about it because I ended up being one of the people between this whole mess now. There was a guy named Bob Exell (sp.?) was the Assistant Deputy Minister and Allan (sp.?) Williams was the Aboriginal Affairs Minister. Bennett asked Allan Williams if he could get Jimmy Gosnell to retract his statement. Allan Williams phoned Bob Exell and asked him if he could try and make the connections. So, Bob phoned me up and said, "you know the Premier is having a heartache about this stuff and you know he's asked us to try and set up a meeting and whatnot." So I said to Jimmy, you know the Premier wants to talk to you. He says, "what does he want to talk about?" I says I guess you called him Hitler. He says well he can fix that easily. They can put us back in the Constitution and I'll retract my statement. |
| [2,65] And so this went back and forth for three days. It was on a weekend, I still remember this. We went to Prince George and went on Saturday, Sunday and on Monday morning, finally there was a meeting arrangement between Jimmy Gosnell and Premier Bennett. And he went down and Jimmy Gosnell just laid it down on the table. You don't put us back in the Constitution and he says you haven't even heard anything that's just the beginning of me calling you Hitler. I intend on defaming you in this province. So, Bennett started phoning Lougheed and what not. They got to phoning back and forth for 3 or 4 hours. Anyway, by Monday night, Excell phoned and he says do you think you guys can live with the word "existing". And I said in what sense? And he said "existing Aboriginal rights". |
| [2,66] So, I actually knew Roy Romanow quite well. We phoned him up and asked him if he would talk to a number of legal scholars in the legal community about what they thought would be the effect of "existing". Every one of them came back to us and said that it has no effect. They either exist or they don't exist. So the word "existing" is useless. It doesn't mean anything so agree to it. So, Jimmy, of course he asked Tom Berger. Tom Berger was of the same opinion too. So, Jimmy said okay I'll apologize tomorrow, you guys put "existing" Aboriginal rights back in to the Constitution. That's how we ended up back in the Constitution. I always loved this story because everybody has all these other theories about how we ended up back in to the Constitution but it had to do with Jimmy Gosnell calling Bennett, Hitler. |
| [2,67] Anyway, that has a lot to do with where we've gone since then because when we did get back from the Constitution, it was clear that they were going to have to do something with us. We weren't going to go away and they were going to have to somehow take undefined Aboriginal rights and get a definition for them otherwise the courts were going to do it over a hundred year period. I don't think the Indians are interested in doing that let alone the non-Indians. So, that's really, in terms of the treaty process, what this is really all about. |
| [2,68] Now, when the Constitution came home, part of the commitment was that they would hold 3 Constitutional conferences to do further work on the Aboriginal agenda. I participated in those and it mainly became an issue of focused discussion over Indian self-government about getting that into the Constitution. And like Doug said, we got it. We actually got an agreement from the provinces and the federal government to have Indian self-government put in to the Constitution and it was judiciable within 3 years. In other words, if after 3 years if the governments haven't worked it out, what that meant, you could go to court on it and rely on it that it was in the Constitution. |
| [2,69] Now, there is two disappointing things about that. The first disappointing thing was that a whole bunch of Aboriginal people in this country didn't support it. They took the position that nobody, no white man could tell us we had a right to self-government, we had it, it was an inherent right and therefore we had it, and therefore you don't have to put it in the Constitution. Unfortunately, with that theory, there's a legal reality. And the legal reality is that the highest law in the land is the Constitution and so the Supreme Court is always going to rely on the Constitution. If it isn't there, then you can bet they're not going to rely on it, on the other hand, if it wasn't in the Constitution, then they would be guided by that in all of their decisions. |
| [2,70] The other disappointment, of course, was that when you go to amend the Constitution, everybody's got their own agenda. Like MacArthur's people, he wanted to do away with the Senate. Other groups wanted more Senators. Everybody had their own little package that they wanted and the Canadian public is never going to adopt a Constitutional amendment that's got about seven or eight items in it because everybody's going to find something wrong with it and their going to vote against it. I mean, when you get that many things in it. |
| [2,71] The thing that I found interesting about that is they did a, one of the major polling companies in this country, did a poll a week after the vote on Charlottetown (Accord) and 72% of Canadian people said that they would have supported an amendment honouring self-government that was done on its own. So this nonsense that they had out in this provincial referendum that they did, that's a pile of crap. Something like 14% of the people voted on that thing. The reality is that 77% of Canadians support Indian self-government. We just got to figure out how to do it. |
| [2,72] Now around this time too, around the Constitutional meetings and that, Vanderzalm showed up on the scene. I don't know if you remember or not but Vanderzalm struck this committee and he had a couple of Indian people on it. Jack Weisgerber and himself, there was five of them, their terms of reference was that they were supposed to look at the social conditions and economic development for Aboriginal people. They explicitly said that they were not to look at the land question. So Vanderzalm set out on his circus around the province meeting with all the Indian leaders. Low and behold, he has 22 meetings, what's the first issue raised at all 22 meetings? The land question. Indians didn't want to talk about anything else except the land question. |
| [2,73] So, a guy named Eric Denhoff was actually the Deputy Minister to Jack Wiesgerber. I know they were actually flying back from Alberni in a chartered flight to Victoria and Vanderzalm asked Denhoff, "do you think we should get involved in this process?" Denhoff says "you're going to get dragged in anyway, kicking and screaming, if you don't, so you're better off to set the terms on which you get involved and get at least recognition that you're involved." That's when Vanderzalm and the cabinet changed their position. They entered into the Nisga'a negotiations and a guy named Tom Sidden, was the Minister of Indian Affairs, him and Jack Weisgerber, who was the Minister of Aboriginal Affairs, they jointly set up this task group to set out a process for treaty negotiations. |
| [2,74] That became the famous Task Group Report and 16 recommendations which set up the Treaty Commission and the modern day treaty process in British Columbia. Before it was announced, Mulroney actually came out here and he had a private meeting with the leadership and he said that his government was prepared to move in a different direction in terms of having a B.C. process stand on its own for treaty making that it could be separated out from the rest of the country and that he was prepared to support that. So that's how we ended up with this made in B.C. process. |
| [2,75] One of the other things that he did say in that meeting is he said that he asked his Minister and the cabinet to try and ensure that we had eight treaties by the year 2000. Well, unfortunately it's 2005 and we don't have one yet. But he certainly said it but it didn't happen. Now this is where I've got to bring MacArthur in. You see, Mulroney and Harcourt actually signed that Treaty Commission Agreement. This is the guy that was giving the government lousy advice and you know, so even though they adopted recommendations, they never implemented them. |
| [2,76] The biggest one in my opinion that caused a heartache for everybody was the recommendation on "interim measures". Because even though we were in the treaty process, people were gobbling up all the resources around our communities. And people didn't think that there was honesty in this process. They continued to log next to our reserves while we were in negotiations. And people felt really strongly that we should be able to move into the interim measures which the government never ever did agree with and we never did get there. After that time of course, we ended up with the Nisga'a Agreement in Principle and then a couple of years later we ended up with the Nisga'a Final Agreement. |
| [2,77] I want to close by talking about why I consider some of the differences and some of the problems that are preventing us from reaching completion on these treaties. One of them is that even though the governments swear up and down that there is no formula for settlement, there is one. And I don't know why they lie. I mean everybody knows what it is. They've got this range somewhere between $60,000 - $80,000 and its $70,000, and low and behold if you do the mathematics you'll see that the settlements they make, that if you do the mathematics, that's what it comes to. They're all $72,000, $74,000, all around the $70,000 range. |
| [2,78] So there is a formula and the sooner we get it on the table the better it is because it does cause a serious problem for small bands. Some of these small bands have got huge territories and they're being offered very small amount of land and small amount of cash. |
| [2,79] Now one of the other problems in terms of what the government is offering, is that for a lot of the lands they use the value of the trees as opposed to what the value might be estimated at or they use the real estate value. So like people like Delbert and them, I don't know how many people they've got, but they could end off with 300 - 400 hectares of land because they've got the most prized real estate in British Columbia. And so the governments could say well I'm sorry you guys, and they're present reserves will probably equal more than what they're going to be offered in the treaty and on the other hand, you've got areas where there's these huge stands of timber that are on the proposed treaty lands and they say well, these trees are too valuable and therefore we can only give you half of the land because the trees are too valuable. In a lot of cases, the Indian people have no desire to cut those trees down. So how can they put a value on those trees if they're not going to be cut down. In fact, a lot of Indian people are coming to the thinking that the value actually is in leaving those trees standing. That the long term revenue is in leaving those trees standing and devising economic development around that strategy. |
| [2,80] The other serious problem there is, is partly what Doug mentioned and that is that B.C. has backed off the Nisga'a model on self-government. It isn't quite what Doug said it is, that they have taken it right off the table because they haven't. They've gradually brought stuff back and are prepared to put it into the treaty. What they aren't prepared to put into the treaty is where you start getting dealings with non-Indian businessmen. They believe that they need to get those issues into a self-government agreement as opposed to a treaty. I think there's serious problems with the model that they're pushing. |
| [2,81] Another thing for the coastal people is the commercial fishing right. They absolutely refuse to deal with it. The courts in Haisla (sp.?) case or the Hiltsik case, or is it Gladstone? Yeah, the Gladstone case. It says that commercial fishing is an Aboriginal right. It sets out the threshold test for proving that you have that right but now the government say well even though Gladstone says you have the right, we're not prepared to negotiate it into the treaty. So all the groups are saying okay fine you don't want to negotiate the treaty, then we're not going to release it. We're not going to release you on it and it's still an outstanding issue and we can go to court on it. So we're having a tough time on that. |
| [2,82] Both the federal and provincial government don't want to put any kind of financial commitment into the treaty and I find it's a bit strange because they sure want the land certainty in the treaty but they don't want the money stuff in the treaty. And that just says to me that they're just setting up for disaster. Because if you look in the United States and they do it in the United States treaties, that's why the United States' Indians got threshed on their treaties because they didn't get the financial stuff on their treaties. It was outside government agreements and that's what these guys are proposing, I shouldn't say these guys, I keep forgetting that Doug is on our side now. But governments are proposing that to us. And we're going to have a tough time over that. |
| [2,83] We had a discussion today and I think we figured out a way to snooker them into at least getting the taxation stuff into the treaty. There's this other thing about what they call "lone source revenue" and basically it is that the governments want you over a twenty year period to start paying for 50% of your government. I really think that what they're trying to do is that they're trying to keep Indian people poor. I can't see it any other way. Because the reality is that the money they want you to take to help pay for your government programs is the very same money that First Nations need to invest to generate wealth in their community. Because we're never ever going to get there if we don't have the capital that's needed to invest in order to become our own bosses and that's really what I think their hidden agenda is. They want to control the money so that they can control our lives which they've done over the last 150 years. |
| [2,84] I think the Indian bureaucrats don't want to let it go. I think they want to keep control of our lives and that's why they're bringing forth this policy. I really don't see us settling a treaty with this policy as part of it. I guess I'm like Doug, I'm getting too old now so I need to be optimistic. I've only got a few more years left and I want to see something done before I go. So I've got to wake up every morning saying I'm optimistic. But there's some huge hurdles out there and I think that we need to return back to the original purpose and that's to make life better for our people. I mean people seem to forget that 60% of our people live in poverty and our task should be to change that. |
| [2,85] I don't think we're going to get there if the people in government don't start to recognize that that's what we're trying to do. It seems to me that they just want the status quo to say we may have a little bit more land and we may have some fish but they want us to live in poverty. I don't think that's going to be acceptable to any of our people. We got in this process so that conditions would change for our people. If we can't do that there's not going to be a treaty. So, thank you. |
| [2,86] Paul Tennant: We'll have another brief commercial break and I'll ask those of you that wish to ask questions to come up here and join us at the podium because the listeners on the internet need to hear your questions directly from you, not secondhand from this old white guy. So, please those that want to ask questions come up on my right and we'll take you in order. |
| [2,87] Nicola (FNSP student): I just want to make a comment. I really want to thank you from the bottom of my heart. I don't think that there's any words that any of us as young Native people in Canada have for our leaders. I made a comment in my response last week that our elders continue to die without having found that, I can't remember the word I used, that...you know...having achieved that sense of...I can't think of the word right now. You know my Mom just passed away and she was 75 and I know how she suffered. So when I see our leaders, my uncles and our different people who carry on through everything over so many years, I just have so much admiration, you know, have so many prayers for people like you that persevere, who have never given up, and I really want to honour that, I really want to honour you for that. Thank you. |
| [2,88] Paul Tennant: Thank you, Nicola. I see further questions on the way. |
| [2,89] Denny Eddy Hi, my name is Denny Eddy and I'm in the First Nations Studies Program here and one of the things that you mentioned, George, was the issue of some of the bands that felt because they are sovereign nations they shouldn't be, their agreement shouldn't be decided by, for instance, the Supreme Court of Canada or whatever. When I was doing a study on the Nisga'a Agreement, it's not a treaty in the sense, it's not called a treaty, it's a land claim agreement, Final Agreement, and I'm not sure if that's an issue or if should be an issue. Does it mean that if you do make a land claims agreement it's not constitutionally protected? Or is that even an issue in your discussions? I think probably more in terms of the taxation issues and so on because that seems to be a fairly big stumbling block. |
| [2,90] George Watts: No, it's protected because there will actually be a clause in there saying that it is protected by the Constitution and the agreement is protected by the Constitution and it's considered to be a treaty because the Constitution says Aboriginal rights and treaty rights. |
| [2,91] Paul Tennant: I sure hope that the trip up to the front has not scared people off, you're not willing to come up here and...oh I'm sorry, I didn't see you there...come right here. I'm sorry. |
| [2,92] Male speaker: Thank you. Actually it's an open question to all three of you. I'm curious as to the relationship between official federal as represented in the White Paper and official federal policy as would be manifested unofficially in a sixties scoop. And my question is, is the sixties scoop, is that real or is that imagined? And if it is real, at what level would there be a connection between the various governments, federal and provincial, and then finally to the top with the Prime Minister. The connection between them. |
| [2,93] Sixties scoop, as far as I can understand it, sixties scoop is an alternative, if you buy into this, which I do, is an alternative route by which you can gather children for a cause. The way it goes, is essentially you had the residential schools set aside for a specific reason and we won't go into that, but essentially then that was replaced, when that became unpalatable, with the sixties scoop. And my real question is, how much is that real, in your opinions, is that real, was the sixties scoop a real thing, and then secondly, what is the connection because the sixties scoop is something that no government official would stand up and say yeah, we had a policy and we can no longer officially take the R.C.M.P. and take children, so what we did is have an unofficial policy and we took the children in the sixties scoop and essentially we brand a lot of people as being incapable of raising their own children, we send in welfare and remove the children. |
| [2,94] George Watts: They wouldn't say it because their lawyer would have a heart attack. I mean that's sure, that's why everything these guys say they've got to run through the Justice Department and it's all got to do with the liability around these issues. And so they'll say, well we don't have a paper, well, we found a paper. It was done by a guy from the University of Saskatchewan in 1949 and it had to do with termination of Indian people in this country. And guess who ordered it? The federal government. So don't tell us that you weren't on this track. In fact, I believe that Canada was on this track around 1980. That they wanted to make us into good little white people. The reason that it backfired on them is because of their own actions. |
| [2,95] What happened was that you started to see a large migration of ethnic minorities into this country. The next thing you know, they look around and they say, "Jesus, it's more than the Indians that are coloured around here. We've got a whole pile of coloured people around here now. I guess we can't turn them all into white people." So they started to change their policy and people from different nations started to become a part of government. They started to get into the cabinet room. So they were not allowed to talk about these things anymore. But that doesn't mean that the forces died. |
| [2,96] There's still 20% of the people of this country who hate Indians. I don't know if you guys remember or not, but there was a guy who wrote a letter to the Vancouver Sun who lived in North Vancouver and he says, "we have got to go back to an English only immigration policy." This letter was 1994. You know, so it's alive. It's alive out there with 20% of the people but look around you. Go look around Vancouver. They can't get away with it anymore. Because Canada is a very different country than it was 30 - 40 years ago. I think it's gone far deeper to ever turn back. Canada will never be the same again. They can have their racism but they're going to have to hide it now. So for us, it's less of an issue now. |
| [2,97] Doug MacArthur: If I might just make a comment about the sixties scoop. I never did see, in my time in government, any kind of directive or any explicit policy statement by the federal government regarding the situation with respect to children during that 1960's and 1970's period in the sense of directing that there be a taking away of children from families. |
| [2,98] However, what did happen during the 1960's, and I ran into this directly because I was a young deputy minister living up in northern Saskatchewan in La Ronge when our provincial government brought about 90% of the residence of what we called northern Saskatchewan where Aboriginal people, either Metis or First Nations people, and our provincial government had created an integrated program service department in northern Saskatchewan and it had run into a lot of problems. I was sent up there as a young deputy minister to work with this. I'd never worked with social services before in my life on social services issues. Nor had I worked with any Aboriginal people to any extent. What I discovered was two things. |
| [2,99] One, is the federal government had actively in the 60's insisted that children, what we call child protection services, were to be responsibility of the provincial governments. Not the federal government. The federal government was not taking any responsibility and insisted that the provincial laws apply with respect to First Nations people both on reserve and off reserve. Lawyers certainly supported that interpretation of the legislation. |
| [2,100] One way or another, the provincial governments including the Saskatchewan provincial government got involved in child protection. I discovered, and this was in the 1970's, I had a visit from five First, four First Nations mothers who came to tell me that they did not know where their children were. I found this almost impossible to believe and so ordered an investigation. We found that there were a number of children who, in the north, I have no indication and no record of what happened in the settled areas where the reserves were. But in the north, the provincial social services had children which were in care, who had been brought there by federal health services, federal health services were then operated by Health Canada. Brought there by health services indicated that these children were in health difficulties, these children had been moved to City Hospital in Saskatoon, Regina, and record had been lost of these children. |
| [2,101] All five of these mothers were quite correct and they did not know where to go to, they did not know how to deal with this problem, they didn't know who to bring it to. We were eventually able through extensive investigation to trace down these children and locate them and find out where they were. A number of them were in foster homes in the southern part of the province. If these mothers had not had the determination to essentially come into my office and plead their case, I don't suppose that those children would ever been found. What you can say about that in terms of the overall intent and what was really going on, I'm not entirely sure myself. But there certainly was a situation which was unforgivable and that is that parents had lost their children as a result of children being brought into care in the federal health system and transferred to provincial social services. |
| [2,102] They were transferred to hospitals from the south and this is one case that I know of and the records and maintenance of records and things were simply not kept. The responsibility was not maintained with respect to these children in terms of where they belonged with parents and they ended up in foster homes. Eventually, through a whole complicated series of things got back to their homes. But, I suspect there were a lot of children in various parts of the country who were caught in it, First Nations children, who never did get back to their homes and that's my belief. |
| [2,103] Paul Tennant: I wonder if George would comment on his Nuu-Chah-Nulth tribal groups taking over control of child care from the province. I think you were the first in the province to do that. |
| [2,104] George Watts: Yeah, we were the first to get the delegated authority. It really was driven I guess by our old people. Back in the 70's, like we actually kicked Indian Affairs out of our territory. We actually just went into their office and just kicked them out, told them we don't want them and they went to Nanaimo. They were actually stationed in Port Alberni. We told them we don't want them in our territory. We're going to run our own business. So we did. We started running our own business. Our old people, they used to set our agenda for us in terms of our priorities and that was one of their priorities was to take over control of our children. They weren't happy about our kids being taken out of our villages and put in non-Indian adoptions and things like that. So we worked on it. |
| [2,105] I don't know how but we convinced the Social Credit government, the guy from Kamloops, he's back in there now. Claude Richmond, he was the Minister. "Look" he says, "everything I've got says that you guys are capable of doing it and I'm going to take the risk and sign the agreement with you guys and give you the delegated authority." So we formed a group called USMA, Nuu-Chah-Nulth and we had bilateral negotiations with the federal government for the funding. We were lucky because we were the first ones in there. We were able to get huge amount of resources to do the job that we did. Unfortunately, everybody that came after us wasn't as lucky. They weren't able to get the resources that we got. So we've ran a very successful program in USMA. In fact, we just had our 15th Anniversary last year. It's very much in our control and so now we're in the middle of negotiating to actually put that into the treaty. |
| [2,106] Male speaker: Good evening to you both. What little knowledge I have of negotiation is that there is interest based negotiation and positional negotiation. What I'm hearing essentially is you talk about positional negotiation. You want to, you want your own land and you want your own government. Now, I don't take that away from you but if you go in with that particular position it almost invites a yes and no response. From what little I know about interest based negotiation, then you're looking at security and other items, lots of softer items to negotiate which will, where there is a commonality between the two parties. I'm just wondering whether this actually takes place in your negotiations. |
| [2,107] George Watts: Actually our negotiations are a mixture of the two. The reason that there is a mixture of two is that there's just some stuff that's too close to our heart not to take a position on negotiations. You've got to remember, we've lived this stuff for 150 years. We're not prepared to tolerate it anymore. It does bring about a position on some issues. The worst thing you can do is go to the table and bullshit the government and say well we're prepared to be flexible on this when in fact you know in your heart that you're not going to be flexible about it. We've got to solve this this time around and the main issue is us having control over our lives. We can't be flexible about that. |
| [2,108] You've got to remember that Indian Affairs ran our lives for 150 years and it made a disaster out of it. So we can't go in there and say well we'll be a little bit flexible and we might let them look after, partly look after us and we will partly take the control. You can't. It's all or nothing in some of these issues. I understand what you're talking about and I understand and we some of that. One of the problems that I have with government, and Doug will know this because he's advising to us, is that the Aboriginal groups bring their interests to the table and somehow they always get removed from the documents. So after awhile you say hey folks you guys were the ones that told us to believe in this new way of negotiating and then you turn around and ignore everything that we put down as an interest. That doesn't seem to me to promote interest based negotiations very much when you do that as a government. |
| [2,109] So they're just as much to blame for driving us into the corner because they ignore us. It happened again to us today. We were working on the taxation chapter. The people that I'm negotiating for, we made seven points. Low and behold all of those seven points are in square brackets stuck at the bottom of the page. So what good was us placing our interest on the table when they're going to stick it on the bottom of the page and keep all of the stuff they wanted in the main text. I mean that's no good. We're not going to agree to that. |
| [2,110] Male Speaker: So is there in fact negotiation in good faith? |
| [2,111] George Watts: Ohhhh, you'd have a hard time finding it! |
| [2,112] Male Speaker: I regret to hear that. |
| [2,113] Doug MacArthur: I would just like to make the following observations that aren't much different than George's. I currently, amongst, as well as my teaching provide some assistance and advice to Tsawwassen First Nation and their negotiations. Tsawwassen First Nation has consistently right from the beginning worked extremely hard to bring forward all of its negotiating, opening negotiations and material and things it puts before the governments as interests and they're available on the website, you'll see them there. They're very extensively stated. I don't know that I've ever seen a better attempt to engage in interest based negotiations than is the case of the Tsawwassen First Nation. |
| [2,114] My observation is that one way or another it has been virtually impossible, I'm not saying impossible in the sense that it couldn't be done, but impossible to get government negotiators to respond in terms of interest discussions. Even though originally when this treaty process was set up from my recollection George is that all three parties agreed to interest based negotiations and actually did quite a bit of work on developing interest negotiations and trying to train negotiators. I, in government then, was not really associated directly much with the process but seems not to have been possible and I have some thoughts on that. |
| [2,115] I think one of the problems in government is that the government delegates negotiations, unfortunately, often to very inexperienced or not very capable, or people who are fairly distant from decision makers and the only way government can manage that is to give them mandates. The only way those negotiators can interpret mandates is to interpret them as positions and so they end up in a room working with positions. So it's a very difficult process to make work in this. |
| [2,116] Male speaker: I want to thank you for your answers and I want to salute your patience in your negotiation. It's a very difficult task and a very difficult road you've got. Thank you. |
| [2,117] Paul Tennant: Next question, Helen. |
| [2,118] Helen Bell: Hi, my name is Helen Bell and I'm a member of the Carrier Nation and I want to welcome you both. I just want to say something because we were talking about the sixties scoop as if it was in the past tense. I want everyone here and everyone out there in the world to know that I was adopted in 1964. I just want, I think we need to remember that the sixties scoop, I think it was coined by other journalists or social worker way back when and no one has coined what is still happening today and maybe we should call it the Millennium Scoop. Aboriginal children continue to be taken from their homes at an outrageous rate today and tomorrow and the future. We need to remember that the majority of children in care in this province are Aboriginal. I just needed to tell you that, thank you. |
| [2,119] Dustin Johnson: I'm Dustin Johnson, I'm from the Tshimsian and I'm a member of the First Nations Studies Program. I'm also President of the Indigenous Student Society of UBC. The question I have is kind of an open-ended question about the nature of how Aboriginal rights and title is actually a bi-product of colonization because they exist within the parameters of Canada, as a Canadian state. So, as such deconstructive terminology as Aboriginal as reconciliation and modern treaties are actually bi-products of colonization. Our dependency on state constructed terminology used to make us prove that we have to prove our inherent rights to be politically autonomous and for our land ownership that we don't have to go to courts to prove this. |
| [2,120] The actual fact that we have to go to courts through litigation to get these courts to tell us that we have such and such rights to agree with our rights to fishing and owning our lands is testament of that as a bi-product of colonization. I was wondering what your perspectives were on that and the notion that the so called B.C. Treaty process is actually they're not really treaties because it's not nation to nation. Not on a nation to nation basis when this delegated decision making from the state is actually goes against the nation to nation basis because that's not a nation. For instance, the Nisga'a Final Agreement is not a treaty because if you actually look through it how many times do you see treaty? That's actually delegated decision making and their status within the Constitution of Canada is nothing more than hybrid of a new municipality in provincial government. So, I was wondering what your thoughts on those perspectives? |
| [2,121] George Watts: Well, my own feeling is that probably close to a 100% of our life is the by-product of colonization. I'm not convinced we can undo all that we can certainly start to change our lives about that. I would differ with you strongly about your interpretation of Nisga'a. I would do that on two bases. The Nisga'a people are no longer the Nisga'a band. They are no longer Indian bands anymore. In fact, they're recognized by the Constitution of Canada as being a government. This is what the provincial government is fighting. They want us to be a delegated government. |
| [2,122] And Nisga'a has slipped through being a fully recognized government in the Constitution. Not only are they a fully recognized government, they have the only other kind of land that there is in this country and that there is in this province. There's Crown land, there's Nisga'a land and there's federal land. People don't realize that. When they signed their treaty they created a new category of land in this province. And it's Nisga'a land. People think that because they use the term fee simple that somehow the underlying title doesn't belong to the Nishgas. It does. If you read the treaty and if you read it properly, you'll see that the underlying title to their land is Nisga'a. Therefore, it's a new kind of land in this country. So, I disagree with you on your interpretation of Nisga'a. |
| [2,123] Doug MacArthur: Maybe I would add a couple of comments. One is not greatly different from George's with respect to the Nisga'a. The Nisga'a treaty actually in the end, the powers and authorities were acknowledged and recognized and coming from their inherent right which for all intents and purposes recognized the sovereignty of the Nisga'a people as running parallel and in conjunction with sovereignty with the province and sovereignty of the federal government. Now, having said that, the federal government retained that, so it really was a carving up of sovereignty which is what of course Gordon Campbell and Geoff Plant went to court to try to strike down on that very ground because they objected to that very principle because they did believe that the Nisga'a should be subject to the province and the federal government and should be delegated authority and all those sorts of things. The court upheld the structure of the treaty which was to recognize the parallel sovereignty of the Nisga'a people with their inherent right. It is true however that that hasn't given the Nisga'a people nation status in international relations. I guess, I don't know what more I can say about that other than that is clearly something that the federal government would never ever tolerate and as Joe Gosnell said, "Their position was to become part of Canada not become separate from Canada." So, I think the Nisga'a people engaged in that discussion of sovereignty on those terms. |
| [2,124] The other thing however I would say is it is true and correct to say that the impetus for the negotiations of treaties comes from the side of the governments, I'm not saying from the First Nations side, the side of the governments going back to this history in the period we're talking about comes from the whole recognition of Aboriginal title as having been a type of title recognized over two to three hundred years by the British Crown in the colonies where the British Crown exercised sovereignty. |
| [2,125] That's where the fundamental driving concepts came from for this modern treaty process. It's that occupancy in use of the lands, historically, at the time of the British Crown coming here, that has provided the basis for the legal cases and provided the basis upon which the governments structured the negotiations. |
| [2,126] So, in that sense, absolutely, the Aboriginal title as it's understood and driven by governments is wholly based on the colonial relationship and it is why in Canada that Aboriginal title has been able to get some traction and get some power to First Nations where it hasn't in other countries where the colonial relationship did not recognize Aboriginal titl |
| [2,127] Paul Tennant: It seems to me popular participation or the lack thereof indicates that it's time to close the meeting. Linc, do you have some further comments to make. |
| [2,128] Linc Kesler: Before closing tonight and thanking our three speakers tonight for joining us and giving us all that information and all the benefit of their experience I do want to tell you that next week of course we'll be having another session and it will be lawyers night featuring Marvin Storrow and Louise Mandell. Two people of great experience in the formation of the legal cases some of which were referred to tonight and Delbert's case as well so I hope Delbert will be back with us next week. But I hope you will be able to join us for that and for the other sessions that follow. But that's all I have to add tonight and I just really want you to join us in thanking our speakers for these very informative presentations and for taking the time to be with us and become part of this record as well. So thank you very much. |
|
Session #3 - February 1, 2005 Guest Speakers: Marvin Storrow, Louise Mandell, Delbert Guerin |
| [3,1] Linc Kesler: Good evening and welcome back to the third session in First Nations Studies Internet Speaker Series on governance and land claims. I want to of course begin again by acknowledging that we are guests on Musqueam, the traditional territory of the Musqueam people and we're honoured to have with us tonight elders from the Musqueam community, Rose Point who is sitting in the audience and our special guest tonight who will be joining us who is joining us on stage, Delbert Guerin who will be the subject of some of tonight's presentations due to the Guerin case and also I'm sure have some comments to share with us. It comes to no surprise to anyone that legal cases and legal court challenges have structured much of the environment in which contemporary discussions surrounding Aboriginal title and land now operate and has structured that environment. |
| [3,2] Most of us know the names at least of the major cases and some of their features. But understanding the details and the implications of the cases and the way that they have played out over time and their importance of the contemporary environment is of course a complicated business. And to help us better understand these things better and sort through some of these complexities we're extremely fortunate to have two fine legal minds who have been part of all of that history, know it intimately and are able tell us about it tonight. We have with us Marvin Storrow who is with the firm Blake Cassels and Graydon and has been the principle counsel on a number of these cases including the Guerin case, the Sparrow case and the Gladstone case. And Louise Mandell who has been operating in the field of Aboriginal law for I think she said for twenty six years and has been involved in many many major cases. So we're very privileged to have this level of expertise with us tonight and as well Delbert joining us and we look forward to a really interesting session. We left these two fine lawyers to sort out who was speaking first, I'm not sure if they've come to an agreement on that or are awaiting a judgment from somewhere but... |
| [3,3] Marvin Storrow: We've decided that age should take precedent. |
| [3,4] Linc Kesler: Ahhh...okay, so it's age over beauty tonight so I guess Marvin will be our lead off speaker. Thank you for joining us Marvin. |
| [3,5] Marvin Storrow Well thank you for having me and it's always a pleasure to be on the traditional territories of the Musqueam First Nation. I'm going to try to talk about a specific case that is the Guerin case. This is former Chief Delbert Guerin who has honoured us with his presence here. I think Louise is going to talk about matters more general and perhaps land rights in a more general sense. Before I get into the discussion of the Guerin case I want to just give you a little bit of historical background about the way things have developed in this part of the world part of Canada since the 1870's. In the 1870's the federal government sent people from Ottawa across Canada to work out treaties with various First Nations and they did that up to about what is now the Alberta/British Columbia border. They made numerous treaties and the treaties promised First Nations medical care, education, money and so on. |
| [3,6] In most cases the treaties involved establishment of very large, relatively large at least tracks of land called reserves. So in Alberta for example there are reserves that are literally many square miles in space. Somehow or other when they got to the border of British Columbia and about thirty feet beyond the border they decided that they didn't want any more treaties. They wanted to create reserves, Indian reserves. So they did that in British Columbia. |
| [3,7] The Musqueam reserve was created in 1877. The Musqueam reserve as I'm sure most of you or all of you know is not very far from where we are seated right now. It's roughly a mile and a half from here. And that reserve called reserve #2 is 416 acres. That's not very much land, 416 acres. That land was effectively designated Musqueam land by the federal government but when you think of that what the government did was tell the Musqueam people that the land that was already there is now theirs. Very contradictory and very, in a sense, hypocritical. |
| [3,8] My question is how did the Musqueam people and other First Nations in British Columbia under Canadian law lose the rest of their lands. Just what law is there out there that would dictate in favour of a governmental position that the rest of the territory traditionally used by, for example, the Musqueam nation is no longer their territory. I've been involved with these matters for nearly thirty years and I don't know the answer to that question. Maybe there is no answer to it but satisfactory to the government. But I think that cases like Louise started, the Delgamuukw case, started to assist in answering that question. |
| [3,9] Now, in about 1956 or 1957 a golf club in Vancouver which was located around 33rd and Granville around the Shaunessey area in Vancouver decided that it wanted to move. It somehow or other its directors who are businessmen got a hold of Indian Affairs the department people of which there were about three at the time in Vancouver and discussed the possibility of moving the golf club to the Indian reserve of the Musqueam Indian band and perhaps use a fairly high percentage of that reserve, 416 acres, for their golf club. So I'll get to that in a minute. |
| [3,10] But I wanted to try and give you some background about legislatively what First Nations had to endure over the years. The first Indian Act, I believe, was created in 1876. And we've had Indian Acts ever since then. We've never had an English Act or an Italian Act or a German Act but we've had an Indian Act. Let me tell you some of the sections of the Indian Act and there are many many of them over the years. But there are some that bother me a little bit. In the first Indian Act and in the subsequent two or three amendments to the Act, the word "person" was defined as anyone except an Indian. Just think of the mind that would invent such a definition of "person" but the Indians had to endure that definition. Another section in the original Act and subsequent Acts said in effect that the Superintendent General can force Indians to work on roads near reserves. Force them to work. You couldn't force French people or English people or German people but you can force Indian people to work on roads near their reserves. |
| [3,11] In the 1886 Act there's a section that says if an Indian woman marries any person other than an Indian shall lose her band membership. Well, these are independent nations, First Nations. Why is it that in other nations if female person marries someone else that she loses her identification with her own history and reserve. And then in 1906 there was a provision that many many Indian children I think have come to regret and it says this, "every Indian child physically able to attend school must attend either a day, industrial or boarding school as designated by the Superintendent General. So the Superintendent General had the power to tell the Indian children what school they had to go to. Well we have learned a lot about residential schools since 1906 and that I think was the beginning of forcing Indian children to attend schools and in a sense being doctrinated or educated according to the wishes of someone else, the government in that case. This is another interesting one. The Superintendent General shall be the sole and final judge as to the moral character of the widow of any intestate Indian. As to the moral character...I mean what does that mean? How do you enforce such a law and who is the judge or morality for Indian people? There is no similar section that says the Superintendent General is the judge of the morality of Irish women or anyone else, just Indian women. |
| [3,12] Then, in the same year which was 1906 and this was in a subsequent statutes as well, it states that any Indian or person who engages in or celebrates or encourages another to celebrate any Indian festival dance or other ceremony of which the giving away or paying or giving back of money, goods or articles of any sort forms a part of where the wounding or mutilation of the dead live and so on, shall be punished. That is the section that did away with potlatches. They were religious ceremonies. They weren't just things that non-Aboriginals thought were kind of rough and ready and people would lose their assets. They were to Indian people, so I am told, effectively religious and very sacred ceremonies in some cases. But the government outlawed them. |
| [3,13] Now in the 1951 Act, statute, it says that the Minister may remove a chief or counselor from office if he is unfit to continue in office in the opinion of the Minister. People holding offices in Indian bands generally speaking are there through hereditary means or they're elected. Why is it that some outsiders, some Minister of the Crown able to remove a person who was lawfully elected by another body of people. To me, it didn't seem, it doesn't seem very right or fair. Until 1961, Indians could not vote in a federal election. Until 1951, and I'll deal with these two points later, until 1951 Indians were not entitled to have their own advisors without the consent of the federal government. |
| [3,14] So just think about that for a moment. If an Indian wanted to sue the federal government for a breach of trust or for any other reason he would have to ask the government if he was permitted to have a lawyer to sue the government. That's not very hard if you're an Indian and wanted to sue the government. The government didn't have to ask Indians if they, the government could have lawyers to sue Indians. |
| [3,15] There was a very wicked law passed in 1917 which said that an Indian may only catch fish to be used for food for himself and his family but for no other purpose. Now that was a B.C. regulation under the Fisheries Act. Just think of that. The meaning of that is Indians could not trade, barter or sell fish something they had done for centuries. And what's the reason for that particular regulation? It was so that the commercial fisherman who were not Aboriginal could make a better living at the expense of First Nations. I had to deal with that particular section in a case called the Gladstone Case which had to do with the commercial sale of herring, spawn and kelp. And the government argued that that section eliminated, extinguished Aboriginal rights to sell fish. The court disagreed with that and said that that regulation is just a regulation it was only regulating the right to sell fish, it did not extinguish it. So the Gladstones proved that they had an Aboriginal entitlement to sell herring, spawn and kelp commercially. I want to tell you about a kind of funny one which shows you the absurdity of some of these sections. |
| [3,16] This is a 1978 section, it says this, "with the consent of the band council, the head of each family and each person living alone may keep one dog, tax free. All dogs must be registered and any more than one dog will be taxed. Well are they taxing the dog? I mean, what's going on with this? Anyway, that's the sort of, I wanted to give you that background because if you're not a member of a First Nation as I'm not, it takes a bit of understanding to realize the courage it takes for First Nations to take on the federal government. |
| [3,17] And so, I want to talk about now the case of Guerin. As I said, the Musqueam people live on about 416 acres a short distance from here. When the federal government was talking about the golf club they were using the federal government was using a retired United Church minister, Mr. Handfield, to do the negotiating for the federal government. Discussions took place and during the discussions, Chief Ed Sparrow, of the Musqueam band, said to the government negotiator, we need, if you're going to lease our land, we need to get an appraisal done. No, said the Indian Affairs person. You're not entitled to have advisors. That wasn't truthful because they'd been entitled to them for six years by that time. Because I'm talking now about 1956 or 1957. Anyways, he said, don't worry I'll get an appraiser for you. So he got a government appraiser. And the idea was to determine how much rent a tenant should pay on the 150 acres of land of the Musqueam reserve for a golf club. The appraiser said that it should be $37,500. The government then sent the band a bill for $75 for the appraiser's work, did not send the appraisal report to the band, gave it to the golf club, not their beneficiary, the band, the golf club. The golf club of course said that's too much, lower it. So they went back to the appraiser and he lowered it to $25,000 a year rent. But they mislead him into thinking that they lease would be for 75 years but after the first ten years, the band could get rent on a highest invest used basis. |
| [3,18] Now we're dealing here with very valuable land. It's right on the water, it was said to be the next British properties potentially. So, the band and the government officials continued to talk about the lease and the government talked to the government people about it and at the same time many of the citizens in Vancouver were coming to the government wanting to lease these lands. They were never advertised as being available which they should have been of course. The government never told the band about one of these other people that would have paid more money for these lands. They only told the band there was one possible tenant, the golf club. So, as you may know, when First Nations want to lease or sell their reserve lands, they have to surrender it first to Her Majesty. And therefore, there has to be a surrender meeting and Her Majesty then becomes the landlord of the lease. So, a lease for Indian lands is between the Queen as the landlord and the tenant is the tenant, whoever it might be, in this case the golf course. So there was a surrender meeting at the Musqueam Indian reserve on October 6, 1957. |
| [3,19] And at that time, the government promised the band that they would take the surrender of the land if the band voted in favour of a surrender and get the band a lease for 75 years. The first term of which is ten years and the rent for the first ten years would be $29,000 for 162 acres. The acreage went up. And that after the first ten years the band could get a very healthy increase in their rent. Based on what the government had told them, the band voted in favour of the surrender of their lands for a lease. The government then took the lease surrender away and entered into a lease with the golf club on the 22nd of January, 1958 about three months after the surrender. Now here's what the lease said. The first term of the lease will be 75 years unless it is terminated earlier by the golf club, not the band, the golf club could terminate it but not the band. The rent for the first fifteen years was to be $29,000 per year. |
| [3,20] Just stop there because if you're renting something don't get into fifteen year terms with a fixed rent because there's always inflation in Vancouver. So you never lock it in for fifteen years but that's what happened here. But then the next term of the lease says the maximum increase in rent for the second fifteen year period is 15%. So for the first fifteen years it's $29,000, the next fifteen years it's no more than $29,000 plus 15%. Well, it could have been less than $29,000 but through generosity it became $33,350. So, for the first thirty years of the lease the rent was at the most $33,350 a year. Now, $29,000 for fifteen years and $33,350 for another fifteen years amounts to $935,250. That is for land that is 162 acres on the water and when we did the Guerin case we had an appraiser for the band and the government also had an appraiser. They reckoned at that time that the land was worth considerably more. Probably a million dollars an acre in 1988 when we, just before we started the Guerin case. Keep in mind that for the first thirty years the rent is about $900,000. The value of the land in 1988 was about $162 million dollars and if the band had gotten one half of 1% return on the value of those lands which is an absurdly low return, they would have gotten for one year what they in fact got for thirty years. |
| [3,21] So if the lease was done properly and if their land was being used properly the rent for one year would be the same as what they got in thirty years. Now, unfortunately and I criticize the government very profoundly for this, when they signed this lease with the golf club they refused to give the band a copy of the lease. So it was not until the 17th of March, 1970, 12 years after it was signed that the band got a copy of the lease and it's because Delbert Guerin and the statute of limitations protects you Delbert, stole the lease from the Department of Indian Affairs. It's too late to charge him with theft. He was stealing his own property. He saw the lease for the first time and was abhorred by the conditions in it. As is understandable. He was the chief of the band at the time and was responsible for his people and thought that the end of the fifteen period they could get a very good rent but he then realized having read the lease it could only go up fifteen percent. Now I can tell you that today the land is worth at least a quarter of a billion dollars...at least. I know that land not far from this building on the university endowment lands, 99 year leases have sold recently for $10 million dollars an acre. We've got a 162 acres that we're talking about here if they're worth $10 million dollars each the lands worth $1.6 billion dollars. They're getting about $500,000 a year rent out of it now. But we're going to arbitrate that next week. But $500,000 is about one-twelfth of one percent of the value of the land on an annual basis. It's an absurdly low quantity of rent. |
| [3,22] So, Delbert seeing what was in the lease got angry, he approached a number of law firms and lawyers and finally professor Doug Sanders started the case for the Musqueam Indian people in 1975. After the case was started the advice given to the band was they would lose the case because they had to sue within six years or the statute of limitations would defeat them. And of course the six year period started in 1958 when the lease was signed but now Delbert is in 1970 or 1975 so the six years has gone by and so you're out the door of the courtroom. So, Delbert came to me about another matter, he may tell you about that, I don't know. And we got talking and I think we were in the Vancouver Hotel basement or something or at the bar or whatever, I can't remember and he told me about the facts of his case and I said you know that case, those facts don't pass the smell test. There's something wrong here. You can't be defeated because you sued too late. And if you can prove the facts that you describe to me you've been wronged. You've been seriously wronged by Her Majesty. |
| [3,23] Now keep in mind that Her Majesty traditionally has been immune from criminal offences or from fraud. But, I said to Delbert, you know what they did to you was unconscionable. What you should consider doing is changing your case to include a breach of trust but also that equitable fraud has been perpetrated against you. Equitable fraud being an unconscionable thing for one person to do to another. So, we talked back and forth and finally he agreed and we had trial preparations for two years, we had Examinations for Discovery and so on. |
| [3,24] And finally in 1979, the case came before the Honourable Mr. Justice Frank Collier who heard the case over a period of about 30 days. We called appraisers. We called about five or six members of the band, the government called all sorts of people and we thought that the case was over when we finished all the evidence but the Crown then had a brilliant idea and they said to the court we want to change the defense of our case to allege that the relationship between First Nations and Indians is of a political trust nature. A political trust nature. Now, that's a unique Canadian or British defense. It's hardly ever used but it's kind of creative. I gave them credit for being creative. So the court said well the case is over but if you want to change your pleadings, if you want to change your defense I'll let you do that but the lawyers for the Musqueam band have a right to reexamine your witnesses and so on. |
| [3,25] So a few weeks went by, the Minister of Justice of the day and John Fraser, this was in the period of the temporary Conservative government, just that seven month period in 1979 when they got into power. They publically criticized their own lawyers for even thinking of such a defense. So the case proceeded and low and behold the Crown did not change its defense to allege a political trust and by the way I told you earlier that Indians couldn't vote until 1961. The political trust defense had to do with 1958 and the meaning of that is you can't sue us in the courtroom but if you don't like us don't vote for us. That's the political trust defense. Well, isn't that nice, but if you can't vote what's the point. So, the judge did not consider that defense because they didn't change their pleadings and the judge said this. I can't get into too much detail I don't want to use Louise's time but he said I've said the Crown knew at that stage, that is to say when they signed the lease that it was a potential trustee and knew of the intent of the band to surrender the lands the resolution set out above does not refer to an unqualified surrender for leasing to anyone the whole implication of the resolution is that contemplated by the surrender was for the purposes of a lease that the golf club on specific terms. And he found that the government of Canada was not only in breach of trust but perpetrated equitable fraud against the band and thus the statute of limitations didn't apply and awarded the band $10 million dollars. |
| [3,26] The next step after that is for the Crown to appeal to the federal court of appeal which they did. And when we got to the federal court of appeal I stood up to defend the Crown's new assertion again that the relationship was of a political trust nature even though they didn't have the right to do that in the trial in the court below and you can't carry that non-right to the next court but they did anyway. And when I stood up to argue against that, the court said sit down because we're not going to pay any attention to that, they didn't change their pleadings to assert political trust. Well that was fine. About six months later we get the decision of the federal court of appeal and guess how we lost? They found that there was a political trust in place. And that the band could not sue the government. |
| [3,27] Now, I've been doing this for forty-two years and I want to tell you that that was one of the worst moments of my life as a lawyer. That the court would even dream of doing something so frankly treacherous to counsel without calling us back to give us another chance to have another shot at the argument. It was frankly not very pleasant to undertake that and was most unpleasant for the Musqueam nation to realize that their lawyers were told to not argue a point and then to lose on that point is not right. So, the case then went to the Supreme Court of Canada and fortunately in the meantime we had a judge named Brian Dickson (sp?) on that court who in my opinion is one of the finest judges that Canada has ever had and possibly any country has ever had. He was brilliant, he was well meaning and he was very scholarly. |
| [3,28] We argued the case in front of Brian Dickson. He and eight other judges heard it, the Chief Justice at that time was Borra Laskin (sp?), unfortunately, Chief Justice Laskin died after the argument and before the decision in the case so he didn't participate in it. So we had eight judges and they all went in favour of the Musqueam First Nation. They all upheld the trial court judge's decision, they all found that there is a relationship of a fiduciary nature or a trust, a legal trust nature between First Nations and the government of Canada. And they found that Her Majesty perpetrated fraud against the Musqueam Indian people. This is probably the first case in the history of British common law where Her Majesty has been found guilty of any class of fraud and unfortunately and I've told this to the government I don't know how many times they shouldn't allege the statute of limitations against First Nations. |
| [3,29] I told you what First Nations went through with their legislation and its bizarre sections of the Indian Act and how in British Columbia the First Nations have been removed from their Aboriginal entitlement in many many cases. And for the government to assert that if you don't sue us in time the joke's on you it's too damn bad you can't succeed in my opinion is not a principled way of running the government. I don't expect anyone to agree with me but I believe that and I will take that belief to my grave. And I've told the courts that I've told the Supreme Court of Canada about five times that the lawyers for the federal government on that side of the courtroom against First Nations should be on our side of the courtroom. They are our trustees. They shouldn't always be fighting. They should be supporting the principles that are being articulated by First Nations. |
| [3,30] So I want to just tell you finally that the Guerin case has been referred to up to last Tuesday in 517 other legal decisions. That's an awful lot of references an awful lot of precedents for one case to be referred to and in a recent poll taken by forty leading Canadian scholars it's been ranked the tenth most important case in the history of Canada. So, a lot of credit goes to Delbert Guerin and the people of Musqueam it takes a lot of courage to do what they did and that's just one of their cases. Some other day we'll talk about some other cases but that's one case. I thank you very much for this. |
| [3,31] Linc Kesler: Okay, so I think we're back in action here and here's Louise Mandell. |
| [3,32] Louise Mandell: Thank you. I'm going to speak so I can avoid the lights. I wanted to first say how much I'm happy to be able to finally for the first to finally say to the Musqueam how pleased I am to be here in this beautiful house and on your territory. I had the honour of being a part of the Guerin 20th anniversary celebration this week and it was just a pleasure to be here and I'm glad to be able to offer some of my words to be a part of the thank you for that. And to thank the organizers for organizing the speaking series. I wanted to take a bit of a long shot into the land question. |
| [3,33] Begin where Marvin started where he had treaties marching to the door of British Columbia. And just before that happened there was a law that treaty making happened pursuant to a law which guided the British Empire in their colonization. And the law was expressed in the Royal Proclamation of 1763 and it basically said, it was part of international law in British constitutional law which morphed into a law applicable to the colonies. And the law said that they would respect the pre-existing Aboriginal people here on the land and if they wanted to enter into a relationship with them which involved the taking of the land that it wouldn't be done through conquest or simply taking it, it would done through treaties. |
| [3,34] So the law of treaty making was entrenched in the Royal Proclamation of 1763 a document that has a long standing life of its own and appears in section 25 of the Constitution in 1982 so it expands centuries of being part of the fundamental fabric of Canadian law. But it never got applied a lot in British Columbia except for a little piece in the northeast British Columbia with Treaty 8 and the Douglas treaties. British Columbia was pretty much treated as a law unto itself. The government, originally the colony, and then later in conjunction with how Canada sat on the fence and stayed there permitted the lands to be treated simply well as Doug Colin (sp?) said in one of his columns like we stole it fair and square. I mean we just took it. There was no treaties there was nothing. |
| [3,35] This black hole, this big theft on the landscape carried on decade after decade after decade after decade. And finally after Aboriginal people where it was legal for them to begin to hire lawyers and fight the land question we started to see the merging of a number of legal challenges which began the question that Marvin raised he said well how did they lose the land a lot of the elders have said it to me this way ask them how is it that they got title? And that question was at the door first of the Calder decision that was in, finally, 1973. And that was a simple little case really. |
| [3,36] It was the Nisga'a who brought the case, the Crown wasn't nearly as contentious in those days, I think they were believing that they would have a better go of it than they did. Because they had so long of simply having their theft condoned and acknowledged they didn't fight so much on whether the Nisga'a, you know, pre-existed the assertion of sovereignty and living on the land the issue, the case was fought in four days. The Nisga'a called Wilson Duff, one witness, and primarily the issue turned on extinguishment. Was Aboriginal title in British Columbia extinguished? That's how the question was raised. |
| [3,37] And there were two extinguishment theories that started to work their way up through the courts. One theory, and this is in answer to the question well how did you get title, the answer is well we extinguished their title and the first extinguishment theory was what they called the settled colony theory and that theory finally got well expressed in the Court of Appeal and it goes something like this. That Aboriginal people were so low on the scale of civilization that British Columbia could treat the land as if it were already empty. That is, that the people there weren't really there even though even if they were there they'd have to have a treaty with them because they were so low on the scale of socialization the land could be treated as if Aboriginal people weren't there. And so the British people could put their colonies and pass their laws and so forth. That was one, 1973, that theory worked its way through the court in Calder and the second extinguishment theory that started its long life was the theory of pre-confederation legislation. |
| [3,38] And the theory of that, and it's all just theories, somebody sitting in a tower in British Columbia and in Vancouver dreaming this up, but the theory was that the pre-confederation legislations, the land laws, which set up a mechanism for land to be given out in the colony, that those land laws not were themselves the effect of them was to extinguish all Aboriginal title in British Columbia whether the Crown knew that people existed or not, simply gone. What the court in Calder did they divided on the issue of extinguishment? Three judges said that title was extinguished, three judges on the pre-confederation theory three judges said no but six judges they all said contrary to the Crown's argument that Aboriginal title exists in British Columbia. It's a pre-existing legal right it's not created by anything the Crown did to recognize it. As I say, three went with extinguishment and three not and one judge threw his hat in and said well he's going to go with the side of those that say that title has been extinguished but not on a substantive point but on the basis that the Crown should have asked the province for permission to sue it. |
| [3,39] So, we have for the first time the victory of Calder, although we didn't have the land question resolved the real victory of Calder was that the government up until then including the Trudeau government and then the Chretien government, Chretien when he was the Minister of, involved with Trudeau, in 1969 they had passed or they had proferred the White Paper. And it was at that time I think the end of the era and probably the Calder case emerged out of it. But the governments were saying well whatever, whatever about the past. Aboriginal people should assimilate, get on with it, get off reserves, you know turn into, you know live as Canadians, take the benefit of democracy and all of what democracy has to offer all of what capitalism has to offer and all of which "we" the non-Aboriginal society considers to be the hallmarks of our society. Let's just get on with it. And what Calder said, what court in Calder said is that we're not our origins are not legally all the same. And Aboriginal people, having a pre-existing legal right, you the government having no ability to define it extinguishment being left pretty much even steven you know there has to be someway that the Aboriginal societies and the Canadian society now begins the process of getting a treaty. You have to go back to the fundamental origins of the denial of Aboriginal title and address it. And out of the Calder case emerged the first real major claims policy which set up a process to negotiate comprehensive claims. |
| [3,40] And I am going to say this. It's a bit of a side bar. But I want to say that the 1973 claims policy has morphed into the 1986 claims policy. And the 1986 claims policy pre-Guerin, pre-Sparrow, pre-Delgamuukw, pre-Haida, and I'll talk about all those cases, it has not responded to one word that the Supreme Court of Canada has said that 1986 Comprehensive Claims Policy is the policy that feeds the mandates into the B.C. Treaty Commission process. And it's based on an assumption that it's the province of British Columbia that owns the land and that Aboriginal rights and title are so poorly defined that it would be better that we just get into a modern look at how we can all live together based on a modern treaty which would put an end to all these undefined rights and clarify the future based on what we can agree to today. And out of that you've got a kind of five percent general formula where we now know has turned into something of a cookie cutter where the province of British Columbia and Canada but they've roughly said that Aboriginal people who make up about five percent of the population is a matter of treaty should ultimately be looking at something of five percent of the land or something like that. And so that's the general model of the mandates that are feeding the BCTC process and I have to say that for what good came out of Calder, we're now choking at the government's inability to respond to the subsequent cases. |
| [3,41] So I want to take us quickly into the rest of the story and the rest of the story being well how is it that you got title to the land? After the Constitution was patriated the next big excuse the government raised for not actually doing anything other than business as usual, was that section 35 was just an empty box that when you know it said that existing Aboriginal and treaty rights were recognized and affirmed...whatever. Just an empty box until you get treaties that you negotiate or you prove something in court that might fill the box but meanwhile we can carry on business as usual. And the court in Sparrow said no, section 35 is filled with first of all a reconciliation promise. A promise of negotiation and also for the Musqueam people it's filled with a substantial fishing right which has been applied throughout British Columbia. And yet, still on the land, business as usual. Still on the land business as usual. You know sometimes as lawyers we come out of court and we think well we've died and gone to legal heaven. But when you come out of court and you come back to the communities, it's the same story. It's the same dispossession, the same poverty, the same difficulties associated with dispossession, the government hasn't changed their policy and they don't. |
| [3,42] And that was what was happening at the door of Delgamuukw where we had this kind of spiritual jolt, where with 1982 and Sparrow and Guerin, you know people were very optimistic that there would be a change in things. But here, and then along with section 35, was section 37 of the Constitution that convened a really bright big Constitutional conference, national television, everyone making big speeches, but the point of it being that out of it we still didn't get much. And things didn't change. And it was at that juncture that the Gitskan and Wet'suweten chiefs said to us well go in there again and ask them well how did they get title to the land and we did and sure enough we faced yet more extinguishment arguments. We found the same old suspects we had to face the old settlement colony theory this is by the way, you know Indians are so on the scale of civilization theory, it didn't actually get put to bed until 1997. The pre-colonial extinguishment theory out again. It all you know dressed it all back up and out it marched and it went back through the courts. |
| [3,43] There was a number of other theories. One was that Aboriginal people voluntarily came to settle on reserves. And so they, by consent, gave up their land the rest of the territory. That theory didn't get past Mr. Justice McEachern, but the theory that the federal and provincial governments together went hand in hand up the courtroom steps on in Ottawa. The one that I think they were most attached to and in the end the loss of which has created the most damage to them as a matter of law was a theory that Aboriginal title was extinguished when the province granted a grant of land to somebody who then used that land in a manner inconsistent with the exercise of Aboriginal title. But the flaw to that theory was that the province did not have the power to extinguish Aboriginal title which is what the court said. And so out of Delgamuukw the court has said look there's co-existing titles. That's what the court said. Aboriginal title is not extinguished in British Columbia and we also had to fight about well what is the nature of Aboriginal title. That was another issue which we hoped to put to bed. |
| [3,44] The Crown had their own theories, the federal government said well Aboriginal title is lands where Aboriginal people continuously used from time immemorial to present exclusively. Well the only lands that would fit into that definition are Indian reserves. And of course the reason that they couldn't continuously occupy the rest of their territories was because the Crown dispossessed them. And the province had a theory they said well Aboriginal title, this is my words, it's kind of like looking through a rearview mirror and if you can still see Aboriginal people picking berries at a particular berry bush in 1846 and they're still picking the same berries of the same berry bush today well, off reserve mind you, that's an example of Aboriginal title. And the court rejected both of these minimal theories and said that Aboriginal title is a right to land itself, it's propriety, it's exclusive right of possession, it's the right to make decisions over how the land is used, it's got an inescapable economic component and the court created a framework for co-existence. It's not perfect we didn't love it but it was this. That the Crown could interfere with the exclusive exercise of title but they had to do it honourably. |
| [3,45] First of all there had to be some kind of priority given to Aboriginal people in the process of the resource being allocated and then the actual allocation because Aboriginal title includes the right to choose to what uses the land would be put. There has to be consultation if the Crown wants to use the land for other purposes. Sometimes consent, there's always an inescapable economic component. And it was a shape of a relationship which was workable, so we thought. |
| [3,46] But we came out of court and after a lot of flurry and people talking about what wonderful new horizons the decision offers we get the government's full response to Delgamuukw and what they say is business as usual. They say Delgamuukw Shmelgamuukw they said. You know because Aboriginal title no one has proven Aboriginal title. They say then, well until you prove it, it's business as usual. All this reconciliation, all of these frameworks for discussion, all of this co-existing title, non-extinguished title, whatever. You know we're just going to carry on we'll develop a new consultation policy which basically states that if there's a strong case for Aboriginal title the decision maker should just get out of there and wait for Aboriginal people to sue them. And they carried on as usual. It was a new juridical terra nullius. It wasn't terra nullius on the ground. But it was juridical, if you don't prove title you don't have anything. And it was in that context that the next two cases which I'm going to talk about briefly got launched. |
| [3,47] And one is the Jules and Wilson case and I actually have a particular fondness of this case even though we're fighting our ground daily to keep it in court but what happened in the Jules and Wilson case the just in a snapshot 98% of the annual allowable cut up in the interior territories this is the Secwepemc and Okanagan nations. Most of that timber allocation that I've just described, 98% of it roughly, has been allocated to big logging tenures. The four communities in the interior wanted to get access to timber to build housing for their members who were in dire need of housing. They also wanted to influence the management of the forest resources because with all of the decisions made about strategic level decisions about how much timber was going to be allocated. The forest they used for other purposes were being denuded of the possibility of them using the forest for medicines and for plants and berry picking and all of the other things that are valuable to them in the forests all together including they wanted to be able to use some of the forest for their own wood needs. |
| [3,48] So after a lot of negotiation at trying to get access at some of this timber and control some of the forest management they each of their nations passed a law authorizing them, those that wanted to log for housing, to go out and do that and they chose an area where the province had already created Silva culture prescriptions and was offering the timber to the small business community to come in and bid on it. And so consistent with the provinces Silva culture prescriptions they went out and started to log. Well the province immediately goes to their statute that says "no person shall log without permit from the Crown" and then there's a provision for the district manager to issue a stop work order and the Minister of the Crown to ask the court for a compliance order all of which true to form happened. Well as soon as the Minister asked for a compliance order these guys come to court and when they do we slap a notice of Constitutional question on them and say right, let's argue about whose trees they are. Let's argue about whether the Crown has engaged in any form of accommodation. Let's just go ahead, let's just argue. So we just, you know step to the plate, let's go. Well as soon as we did tha the Crown got an injunction and we successfully argued that we should have the money put in our trust account after the logging has been done and the logs sold which we did and the province didn't like that. They were saying that we were benefiting from our own mal-conduct. And so we said well let's argue about this like now. Like it's just on Notices of Motions and Affidavits, we filed a lot of Affidavits and we're ready to go. Well as soon as we said Aboriginal title the Crown immediately brought a motion and said well we need to convert this into a trial. We fought that and lost. |
| [3,49] And so now the matter is converted into a trial. We said well if it's going to be converted into a trial we can't afford it. I mean you're suing us, you're converting it into a trial, we can't afford a trial, we want the Crown to pay our costs. And so we went all the way up to the Supreme Court of Canada and got a cost order. It's tools for us because it's very expensive under the present system to prove Aboriginal title and we got a cost order to have the court look at some of the major issues associated with the province's forestry legislation and how it intersects with Aboriginal title to the detriment of Aboriginal title. There's no space for Aboriginal title or jurisdiction to try to govern your communities. There's no space inside the provincial forestry legislation for any of that to occur. That was the issue that they thought the courts were of public importance and they told the province to go ahead and fund us and so we started to proceed into trial. And I'm going to come back to that because I want to talk about the Haida case which was co-extensive in the same time as the Jules and Wilson case. Prompted in a similar manner after Delgamuukw, nothing. |
| [3,50] Now what we're doing legally is we're trying to enforce Delgamuukw and the Haida case, I know that you're going to have a speaker about it so I'm just going to touch the surface of it to give you a sense of where we are in the struggle. But what happened in the Haida case is that this is after Delgamuukw. The court was asked to look at transfer and replacement of a large forest license that had been granted to the province by Weyerhaeuser over the forests of Haida Gwaii. It effectively gave Weyerhaeuser the option of fifty years cutting with over a third of the landscape of Haida Gwaii, effectively converting that beautiful old primordial forest into a tree farm. And there wasn't one ounce, well there was, there was one phone call made to the council of the Haida nations three days before the replacement and that was consultation. So we went to court and of course the position that the federal and provincial governments advanced was that we don't have to consult until you prove your title there's nothing in the face of it. |
| [3,51] And what we did was we showed how self-evident it was that the Haida people were here first. We showed how self-evident it was that even the province should have been able to make that assessment and so the issue wasn't what do we have to do to prove our title, the issue was once the province has reasonable notice that the Haida were here first, what obligations fall to the Crown in order to respect that title prior to proof and you'll hear more about the decision but the court said that prior to proof there is a duty on the Crown to consult on accommodation and the jewel of the case which I won't have time to talk more about is that the consultation has to occur not just at the operational stage but at the strategic planning level. Now, what does that look like from the point of view of the Crown's conduct? Well, you know we thought that, and here we go again, after Haida there would be a change on the Crown. |
| [3,52] I mean I've said that before. We did think that might happen. And what the Crown had did in response to Haida at the Court of Appeal is they unilaterally without changing their, without, they unilaterally without consultation with anybody started what I am going to call a program of rolling back some timber from the main forest companies and then putting this take it or leave it template on the table for Aboriginal people to get revenue sharing and timber resources, the same fiver percent formula as we saw back in 1986 and in through the treaty commission and back in it goes into the forest range agreements based on a per capita distribution roughly Aboriginal people would get approximately $500 per person and roughly 5% of the timber that's been rolled back under this legislation. No consultation, no accommodation, another act of unilateralism and nothing like the co-existing jurisdictions that we really need to talk about and nothing like the benefits and the safeguards that we need in the forest to make sure that cultures co-exist and not just entities or people. |
| [3,53] And today in court the government came in on the Jules and Wilson case and tried to drop a Notice of Discontinuance on the table to say "oh my God" why didn't they tell us about this now that we've got the Haida decision and we're busy trying to accommodate through these forest and range agreements, we don't need to follow through with the Jules and Wilson case. We don't need to have the public expense deal with the questions about what happens when Aboriginal title and forest legislation intercept. We don't need to know that we're very happy to leave things and go as they are, we know what we need to do thank you very much. And we set that matter down to be argued sometime later this month. |
| [3,54] So, I think that what I'd like to do in summary, I've tried to provide you a sense of the struggle. And you know some people have said to us, "oh my God you guys, you've made great strides and you know things are moving along" and in some ways you can say that that there have been big strides made there has been a consciousness shift through the courts, there's been a effort on the part of the courts to respond to the circumstances that we've presented which show real people who are under a real problem of governments' assimilation policies still operating. Old colonial mentalities that people, it's hard for even governments to unravel and see how it's affecting them. We've had courts respond in some ways quite well to that. But we still haven't, we also got a good education. A lot of people are better educated and a lot of people understand not just the courts but generally we've got a better sense of, you know, the reconciliation that really needs to occur for the co-existence of each other. But you know something, I'm 57 years old and I've been doing this for 27 years, Marvin's been doing it for forty something years and I really would like to see the day when Aboriginal governments and the British Columbia and Canadian governments have the jurisdictional space necessary to each, to educate each other, to make space for each other, take care of each other, where the success of one government's approach to the land and to their people is a success for us all. We still have a long way to go, we need to learn to create space to live together and undo the destructive patterns which we've all grown quite used to dealing with from the past. Thanks very much. |
| [3,55] Linc Kesler: Do we need to have another pause for equipment change? We can keep going? Okay. Well, we will have questions in a minute but before we go there I'm just wondering Delbert if it's, you've just had an anniversary of the Guerin case and I'm wondering if you might want to say a few words before we go to questions. |
| [3,56] Delbert Guerin: Thank you, Linc. I'm Delbert Guerin, my traditional name is (name?). I welcome you all here to the territory of my ancestors. I guess in brief form I just really feel very strong about the whole process that brought about, and I talked about this quite extensively on Thursday here in this room. Once I found out through Graham Allan (sp?) who was with us on Thursday night, I talked about him a fair amount, I had seen the cover of the agreement in the first two years I was on the band council of the Musqueam Indian band. I was elected in October of 1964 and then an Indian agent, they're still calling them, Jack Letcher (sp?) had the agreement sitting across the table from me. I tried to grab the agreement to have a look at it and he just grabbed it and put his hand on top of it and he said I'm sorry you're not allowed to look at that. And as Marvin has already said, my mother who was a band councilor, (name?) Sparrow and my cousin Bill Guerin were the three, two councilors and Ed the chief, they had not seen copies of that agreement. |
| [3,57] And I approached the whole process in 1970. I completed the negotiations with the City of Vancouver on behalf of Musqueam and succeeded in getting a service arrangement with them and I just felt I had ample time to just do something else and I thought to myself that 1970 and 1973 is not very far away. I've got to put a process together to start negotiating a new deal with the Shaughnessy Golf Course and I was under the assumption that it would be on market value. And I was also under the assumption that in 2033 I'll be 95 years old when the agreement will finish if they stay there but the clubhouse and all the facilities would become would be transferred over to the band. The agreement says otherwise they can destroy the whole works of it. So I was very fortunate when I tried to get Graham Allen (sp?) involved with me through a very progressive district representative they were called then, Robin Ford (sp?), allowed Graham to start assisting me as I say he provided me with that one page of the agreement showing me the fifteen percent limitation which just made me totally angry and also made me very aware of the kind of things that my mother had come home from council meetings when I was still in high school at Lord Byng and being very angry about things. |
| [3,58] One in particular, that I told the other night, was they went to, her and Edward Sparrow the chief, they went to a meeting at the old clubhouse on 33rd just east of Granville. They had a short discussion in the, in one of the halls and they then invited Mr. Anfield (sp?) the Indian agent, into the lounge to enjoy a drink and their assumption Edward Sparrow and my mother were that they wanted to talk some more. But they told Edward Sparrow and my mother, Gertrude, they couldn't come in because Indians weren't allowed to drink there which was in place from 1854 when James Douglas established that legislation. So they got angry and left and that never left my mind. |
| [3,59] So from there it was really a process as Marvin said of me going after lawyers all over the place being involved with the Union of BC Indian Chiefs, I was traveling back and forth across Canada on behalf of our province and I bugged lawyers including Doug Saunders who worked with the Union on a continuing basis. As Marvin said it wasn't until 1975, December 23rd as a matter of fact, that Doug filed the original Writ. Very interestingly, I said Thursday night, God was looking after Musqueam. |
| [3,60] I was coming home from a Union of BC Indian Chiefs council meeting in North Vancouver and we stopped to have a few beers, myself and Chief John L. George, the youngest brother of Chief Dan George in the Burrard band. I was driving home and he said let's stop in there so we stopped in the beer parlor and had a few drinks. So, I left there and I was coming home and I got to 41st and Main Street and the light was red so I stopped behind two cars in front. When they took off they were just crawling and I finally went ahead and had enough and I pulled in between and went ahead and like a crazy fool tapped my brakes to show him I wasn't very happy with him and took off. The red lights went on. Ghost cars, they were ghost cars. So I got charged with drinking and driving and interestingly, Robert Banner (sp?) who was here again on Thursday night, he introduced me to Marvin. |
| [3,61] Marvin has already covered the, we decided that he would be the man to do the case and I'm very thankful to him and I'm also very thankful to Louise for all the work she's done with Delgamuukw and other Indian bands throughout the province. These two people here have been very exceptional lawyers acting on behalf of our peoples and I think it's just so enormous that I'm sitting up at this table with them. But you know like I said, God is looking after me and I don't know what happened in the other cases to get Louise involved, but I guess that's maybe another story. |
| [3,62] So, when Marvin Storrow told me that my name was going to become world famous, he told me that as I recall it, basically after the Frank Calder decision on July 3, 1981, I didn't know what he was talking about. It just didn't make sense to me and as a matter of fact he talked about fishing and interesting I was out here fishing when the reporters were trying to find me. And I got up just about the foot of Blenheim Street, my son there Victor and my daughter came over waiving at me so I dropped the end of my net went over and asked them what's wrong. They said the reporters are waiting for you. So, I went over, picked my net up and went in and talked to the reporters, finished talking to them and I took two fish and I put them in a plastic bag and I drove up to Marvin Storrow's house and he was having a party and I handed him the fish. His first question to me was are these legally caught fish and I said, "oh your darn rights they are". It was a food fishery opening but later on he proved that they were legal fish so...the rest of the whole thing to me is history. I am so happy it's helped people around the world. I think it's just amazing. I didn't know where it was going to go this far but you know when you're angry sometimes you can do some very good things. So, I want to thank you for this opportunity Linc. |
| [3,63] Linc Kesler: Well, it's now your opportunity to ask questions and following the procedure we used last week, if you do have a question, could you come over to this side of the stage and you can use the microphone to propose your question. If you're joining us online tonight and you have a question you would like to propose to one of our speakers you can do so by entering it in the online forum. We're monitoring that forum and if there's a question we will relay it to the speakers |
| [3,64] Phillip Hogan: Yes, hello, my name is Phillip Hogan and I'm from the Heiltsuk Nation. I think listening to your presentation tonight it's become even more clear to me how much good works been done in the work that you've done over the years. I guess some of what you said is it goes with some of the frustrations we felt in the Heiltsuk Nation and I'm sure with many First Nations, is how is it that we can get to deal with some of these things faster because I know Marvin you are very familiar with the case because you took it for us, Gladstone. We won that case and even still we're fighting to get it properly implemented from our perspective and I think that's the case with almost every case. What is it we can do? |
| [3,65] Cause you know how much it costs to go to court and how long it takes and how much our people are suffering from a result of these things being taken from us improperly. The problem we have is how do we as people in the communities get these things to be resolved more in a timeframe that will have some meaning for people so, you know, they can feed their kids. We can get on with living the way we feel we should. I think there's no taking away from the good work you've done. It's just that it takes really long and even once it's done we have to go back to court in most cases to get the decisions properly implemented. |
| [3,66] Louise Mandell: I'd be interested in anybody's answer to that. It's really a good question. I go back to the words of the late Grand Chief George Manuel who when I first started to do Aboriginal law with the Union of Chiefs and he used to say to me that you can't win by going barebones legal and you can't win by going barebones political. You've got to do both together. And I think that we haven't really interlocked and got a good strategy going when we start a legal case about how we're going to marry the political and the legal. And I especially think that we need to be better able to have a political implementation strategy in place as we're going through the courts so that when we win the politics click in and they're able to move in to a very strong public and political strategy to get the decisions implemented quickly. And I think we're learning. That's my own view, my own feeling is that we're learning. But we still haven't got yet, in British Columbia, a good synchronicity between the political work that needs to happen together with the legal work. And you know I could be more specific with different cases but that's the only general insight I'm really able to offer to you. |
| [3,67] Marvin Storrow: I don't think that there's any easy answer to your question. I think it's a very good question because time after time when First Nations succeed in their cases to the government it seems to be business as usual. Nothing changes. And in the case of Phil's nation, the Heiltsuk Nation, they fought the government for eight years. In fact, I'll tell you why I'm going to say sixteen years in a second. They fought the government for eight years in the case called Gladstone and that was the case where the Gladstones were attempting to sell herring spawn and kelp a product of the sea that they, the Heiltsuk people, had been removing from the sea for centuries. And that was proven at the time of the trial with anthropological evidence that was irrefutable. It had to go to the Supreme Court of Canada and they put these two men, Bill and Donald Gladstone, through five, four court systems before they finally succeeded in the Supreme Court of Canada. After they won the decision the government still would not permit the Heiltsuk people to take anymore than a minimal amount of herring spawn and kelp off their traditional territories. That's wrong. That's entirely wrong and that's the sort of might is right attitude of the government and I don't know what the answer is but I think you just have to keep plugging away. |
| [3,68] Forty years ago it would have been even more difficult at least it's a little less difficult now. And I'll tell you what else happened in the case of the Gladstones. The government took their herring spawn and kelp and sold it and got about $147,000 for the herring spawn and kelp. The government kept that money for eight years. When the Gladstones won their case the government, having used that money by putting it into the consolidated revenue fund and using that money for general purposes, gave them just the capital amount back. They didn't give them any interest on those monies. That's kind of a mean thing to do in my opinion. So we took that case to court too. We took to court the case that when the government does that it's unjustly enriched and therefore has to pay the person whose money they've used a reasonable amount of interest. As it is, I have to go to the Supreme Court of Canada next Wednesday to argue before that court that the government must give them interest on their monies. We've won that case so far and the Crown's appealing it but I think it's wrong that the government would do that and I think it's wrong that they have not paid attention to the decision in Gladstone and let these people earn a living. The average income in the Heiltsuk Nation, that's Bella Bella, is very very low. I don't want to tell you what it is but it's incredibly low. It's because they aren't permitted to do what the court said they were permitted to do, it's ridiculous. |
| [3,69] Louise Mandell: I just wanted to say one other thing about it and that is I'm starting to get a better sense of those rights which Aboriginal people can implement without reference to the government and those aspects of the relationship that require the government to change its conduct. I think that what we've done, I'm speaking about the struggle that I've been involved with up until now, is that we've placed a lot of emphasis on trying to define government conduct and asking the courts to enforce conduct on the government. And I think that's a very necessary role for the lawyers to play. But I also think that we haven't given enough focus to the rights that can be implemented without reference to government conduct and the stronger that those rights are implemented the stronger that Aboriginal people take care of themselves and revitalize and keep alive the culture and language and their laws and repair governance issues and carry on in their own way, the easier it will be for us to force government conduct in the end. So I think that's another piece of the equation that we have to pay attention to in the implementation of it all. |
| [3,70] Marvin Storrow: Just so you know the Americans solve many of the problems that we're solving now around 1820. They're like more than a century ahead of us in terms of the development of their common law. There's a very big breach of trust case going on in the United States right now and it's called the Kovelle (sp?) case and it has to do with the mismanagement of literally hundreds of millions of dollars in Indians' monies that the government of the United States cannot account for. In that case, the judges are finding that secretaries of state of high ranking government officials are in contempt of court. It might be that some day we're going to have to deal with Ministers who've refused to obey the law by citing them for contempt of court. But I hate to say that but there seems to be no other way of dealing with these things other than to get the courts involved rather than letting all these decisions to be made by government officials. |
| [3,71] Female Speaker: My question is for Louise Mandell and you just ended off with mentioning jurisdictional space and I think you said something about multi-lateral jurisdictional space, and I'm just wondering if you could maybe explain that or explain what you meant by that. What would be a good strategy of implementing something like that? |
| [3,72] Louise Mandell: It's a complicated question. I think that one of the neat things about where we're moving after the, first of all Delgamuukw, where the court said that in response to an argument by the Crown that all Aboriginal sovereignty had been extinguished the assertion of Crown sovereignty, the Supreme Court of Canada said no. So the door remains open. The Campbell case came next and that's where the Campbell government before he was the Premier, led the charge on the Nisga'a Agreement and said that it was a violation of the constitutional rights of others and the court affirmed again the capacity under section 35 for there to be jurisdictional space for the exercise of Aboriginal governance. |
| [3,73] I think that when we are now talking about the co-existence of title and Crown title, Aboriginal title and Crown title, we are talking about jurisdictional space for Aboriginal people to make laws and respect of the lands which are their territory the Crown obviously is going to continue to want to make laws in relation to the same land. And what treaties would be best served to deal with rather than trying to allocate five percent of people's territory to them and call it a treaty we would do a lot better off to be looking at what kind of principles should we put in place to talk about the paramoncy (?) of laws and that's a like whose laws are going to prevail if Aboriginal people pass laws and have pollution set at a certain limit for example, and the province has a law dealing with pollution at a lower limit, whose laws should prevail in that circumstance? |
| [3,74] The province and Canada have lived like that for 100 years. No one surrendered one inch of territory to each other for them to take the jurisdictional pie and divide it up. And the courts have been working at the issues as to whose laws prevail in different circumstances and to allow for another level of government to be engaged in that equation is not a big stretch. Now that may not be the model that everybody would like but the one thing that I want to say and I'm not promoting it, as being you know the answer to us all, we've all got to talk about. The way in which jurisdictional space can be made and how it's going to work. |
| [3,75] But the one thing that I do want to say depending upon you know it doesn't matter which model we're going to eventually work into the one thing that I think is absolutely critical is that Aboriginal peoples' rights are about the ability to pass laws and govern their land. I mean that's what we have always, we've always had that and we need to bring that back into play in a way that's real. I know that there is work to be done because the institutions in a sense have been messed around with the colonization process. Hereditary systems have been replaced by elected band systems or hereditary chiefs have been disregarded in their ability to carry on the law making traditions. Band councils have been stripped of authority except on reserves and we've got a lot of intermeddling which has created a lot of damage. But it doesn't erase the fundamental aspect of Aboriginal title which has to and does include a law making capacity and I think that's where we're going to end up in the next while figuring out how to live together. Co-existing title is also about co-existing jurisdictions. |
| [3,76] Cheryl Morgan: Hi, my name is Cheryl Morgan and I'm a Gitskan First Nations. And I just want to ask Louise Mandell a question about what do you mean by political will of being in synchronicity with the legal decisions that are being made? Just an example of what I promote myself as a parent, I've been advocating for education in the schools on the history of First Nations in Canada and on Aboriginal rights and title and Aboriginal self-determination to build self-esteem and cultural identity in the schools. Not just to recognize the hereditary chiefs and elders from this land and do protocol as well and the different ceremonies that recognize Aboriginal peoples of the land but to bring empathy about what First Nations have been going through in Canada and up to today the experiences we have today is dismal really. What do you mean by political will and synchronicity with the legal decisions |
| [3,77] Louise Mandell: You just described a really good example of it. I think what you're doing is exactly right. |
| [3,78] Cheryl Morgan: Okay, well, I'll keep doing that. |
| [3,79] Louise Mandell: Yeah, that's good. |
| [3,80] Male Speaker: This is an open question. I am hoping that Ms. Mandell, I'm not sure if you have perhaps an understanding of the Kamloops area and perhaps you might be able to start with this. Two issues were raised today. One was assimilation and the issues associated with assimilation and also the second was breach of contract/breach of trust. My question is, with the Kamloops area and the Kamloops Residential School, when you're fighting that through the courts or any Residential problem through the courts with residential schools is the focus on breach of trust or is it on the issues of assimilation? Because assimilation the way I understand it can be argued one way or the other depending on... |
| [3,81] Louise Mandell: I know that the residential school cases that have gone up through the courts have, there's been a variety of different legal bases upon which those cases have been argued. Some of them have been you know simple assaults, some of them not so simple, sexual assault, some of them have been, there has been issues involving whose liable whether it's the Crown or the church and there's breach of trust. I think it's the trust in the more social sense of the word. Contractually, I'm not really sure that the cases have gone off on contracts so much as somebody in responsibility who should have been taken care of somebody who acts against their, obviously against even the criminal law. But I'm not enough familiar with all of the residential school cases to be able to answer your question. |
| [3,82] Marvin Storrow: Well I think the question asks for two different types of responses that it was probably the motivation of the government to assimilate children of Indian descent into the Canadian culture which motivated the government to send children to non-Aboriginal schools where they would receive training in the Canadian way, call it. So that's not, that isn't something necessarily against the law. But having done that, the government officials it seems did not take care of those children. Did not watch over those children and permitted through their negligence these children to be abused by some of the teachers and some of the schools. Not in all of them but in some of them. And so the breach of trust issue is the legal issue and the assimilation issue is more of a political issue as I see it. |
| [3,83] Delbert Guerin: I would like to give a quick response to the question that was just put forward to also outlining that one of the things that happened was the residential schools system, particularly here in British Columbia, where my knowledge stands, what the Department of Indian Affairs did very strongly was they moved native Indian peoples from the north, for example, some of the Nisga'a basically were brought down to Coqualeetza in Chilliwack. A lot of our people here were sent to the Westcoast to Port Alberni Residential School. My Dad, for example, got sent to Kuper Island school in (?) territory. And people from up the Sunshine Coast and various places were sent to St. Paul's school where I attended as a day scholar in the residential school. |
| [3,84] And their big aim was to basically break us away from our families or break young people away from their families so that they would lose the culture that would have been passed down if they were there with their people including the loss of language. I listen to my grandparents talk with my Dad on a continuing basis in what is now termed my son is now teaching actually old Musqueam. But they would not talk to us, if they were going to talk to us they would talk to us in English. Listening to both the federal government and the residential schools and the ministries, the priests and the Indian agents saying, "Don't teach them, it's bad for them." And that carried on until the late 1970's when some of the holy orders and the nuns finally came out of with a statement in the newspaper saying how wrong they had been because of the advantage that multi-lingual people have in being able to absorb much better than us singular-lingual people. So I just wanted to put that point forward. |
| [3,85] Marvin Storrow: I just finished a trial in Alberta which is a breach of trust trial for a First Nations there. The trial took 369 days from one issue if you can believe it but during the trial the Minister of Indian Affairs, Mr. Nault, spoke to some Indian children in Alberta. And I've got a recording of what he said. And he said to these children, who do you think controls every minute of your day?" There was a pause and he said, "I do." Now there's something wrong with that I think isn't there? He doesn't control every minute of my day I can tell you that. But why would he tell these children that? It's because of the Indian Act I think. And so assimilation is that still going on? I don't know. It seems to me to be going on but I think First Nations have fought that substantially but that's pretty serious when the Minister of Indian Affairs says that to a group of children, I kind of wonder. |
| [3,86] Russell Kwaksistala (sp?): (Speaking Aboriginal language here) Hello Delbert. It's lonely in that Black Tower back in those days. We were going to Federal Court at the same time. My name is (speaks hereditary name). That's my new chiefs name given to me on September 11th of this year. Back in the other days I had another name. I'm one of the three people that first challenged the jurisdiction of a non-treaty and nation and tribes and royal families against the Crown in 1976. I was defeated at the Appeal Court level and I was unrepresented. I based my disposition at that time on the International Human Rights law from the United Nations of the world and the universal rights and freedoms. Too often us Indigenous people from whatever nation we are from are marginalized away from our freedoms. Away from our homelands, away from our basic rights of life and liberty as stated by Mr. Storrow. I know with regards to the two lawyers that are here tonight I have the highest respect for both of them. I know their cases and that I've followed their cases for what I did. |
| [3,87] But I stand here tonight in apprehension of the judicial process, so called process, and the rule of law in the said state of Canada. Let's keep in mind that I'm non-treaty. There's not one jurisdiction at the federal state or the territorial state Crown has over me legitimately. My latest apprehension is I was given misgivings to be put in Camp 11 and number 58, now 123 with my own family, Campbell River Indian Band. Mr. Storrow is familiar with this case. (aboriginal name ?) and the Queen, that case went nowhere in 10 years in the Canadian court system. In fact, it is a comparatively jaded case that has cameod over and cliched over in the past two years. Judge Binney (sp?), one of the key authors on the case was involved with the case on the provincial level before he went to the Supreme Court of Canada. And certain people filed letters of complaint including myself as one of the principles of the (aboriginal name?) tribe. The original habitants to impeach that whole hearing and have another trial. I never to this date got a letter from the Justice Minister acknowledging my letter. Other people did the same thing to overturn by parliament the decision of the judge because he was involved with two parts of the case on a lower level and a top level and that's the part I'm apprehensive about now. |
| [3,88] I have a perfect clear cut equitable fraud breach of trust but I can't take it to the Federal Court or the BC Supreme Court because I know I'll have to climb stairs like guests through the system and I'll bump smack dab in to the (can't hear word?) that occurred to me unrepresented. I was deprived entrance into the (can't hear word?) case. The (can't hear name?) tribe was deprived from that case because we were going to fight it with Aboriginal title and Maxwell Teetlebaum (sp?) ruled against me and so did the Federal Court of Appeal. I didn't bother pursuing it to the Supreme Court of Canada because I knew that I was railroaded at the Federal Court of Appeal. I was told that it was going to be a four day reserved decision. An hour later, when I was downtown eating in Vancouver a decision come out and it was mailed to me. There was other cases that Big Max was involved in and Chief Isaac of the Federal Court, one was called the Whitebear (?), I can't remember the other one in Alberta, casino cases. Those cases are so impaired and corrupted like mine. I don't know why those people continue the decisions I went against them. And the Whitebear case is about gambling. Our people live with the bone game and stick game on this continent for over 10,000 years. How could you strip on a race of people for a game we enjoyed for thousands of years? |
| [3,89] Some of our people are looking into gaming so that we can bring some wealth back to our people but we're obstructed by our so called state of Canada and I say very harshly that the attorney treatment that my nation the (name?) people have suffered is into the billions. We have council meetings back home and we're watching the Jewish people that are ensuing fishing here or there for their gold all over the world. I suppose that's what Canada is going to leave us to do we'll be suing for our timber or our interests all over the world maybe two or three hundred years from now. Because there are court cases that we're going to model ourselves off of, we're going to entertain a communication to a new court and send a delegation of our people. To me with a legal team of the Jewish people that are doing that because one of the things that our case was about is we were pushed into poverty by the colonial government of Vancouver Island. They strip-mined us of our International Human Rights when they put us in internment camps 1 - 10. That's the end of the case. That's the beginning and end of their accountability to our rights and how they hold us prisoners and hostages against our rights to this date. |
| [3,90] That's a shame to think that one of the judges refugee judges from the Supreme Court of Canada is now sitting in the United Nations. Sitting as an adjudicator in the United Nations. I wanted to get up and express that part because our group, we feel that we have no where to go within this state after the Judge Binney (sp?) fiasco. And I hope that some of you listeners and the audience will go on the internet and look that up and then question the provincial and federal leadership why is this case been left like this. You give a shopping mall to one party, you give a cruise ship to another does that make it right? Campbell River gets the cruise ship the Cape Mudge band gets the shopping mall. Completely whitewashes what they did to us. Thanks you. |
| [3,91] Bill Lightbown: For those of you who don't know who I am, my name is Bill Lightbown. I've been involved in the struggle for recognition of the rights of our people for pretty well all of my lifetime. I have a question for Delbert. But I don't expect him to answer it. How the heck did you get a hold of that lease for that golf course? You can tell me secretly sometime. |
| [3,92] Delbert Guerin: I don't care about telling it to everybody. Robin Ford, the District Representative, allowed me to go down to the basement of the old post office building at Granville and Hastings. There was a little cage down there with boxes and boxes. I searched through the boxes until I found Musqueam's, and as I went through the papers the agreement was there. I brought the whole box upstairs and asked for permission to copy. The copy machines in 1970 were very slow. I wasn't able to get very much done between 1:00 and 4:30 when closing time was. Robin Ford (sp?) came and asked me how I was doing and I said not very good. He says well Graham Allen (sp?) is going to be working overtime so you can continue to do what you can. So, Graham came out about 6:30 and said well Delbert I've got, it's time for me to go home so I'm just going to go in the other room, put my stuff away. He says how have you done. I said not very good. So he says okay can I get a ride with you and I said sure. I'm parked downstairs in the Department of Indian Affairs parking area. So he says, okay I'll see you down there. So he went back in the other room and I put everything back in the box, picked it up and went back downstairs and put it back in the backseat of my car and waited for Graham. Graham came down and I drove him home and we went into his house and celebrated a drink for his thank you for driving him home. |
| [3,93] Bill Lightbown: Have you still got it? |
| [3,94] Delbert Guerin: Still got it! |
| [3,95] Bill Lightbown: That'a boy! |
| [3,96] Delbert Guerin: The other part of our territory. And also, I want to say that I was just made aware that Doug Sanders filed the case and I should have been singing Happy Birthday because it was Louise Mandell's birthday the day we filed the case. |
| [3,97] Bill Lightbown: Well, actually I've got a number of issues that I'd like to raise but of course I doubt very much if I'm going to be able to raise them all. But I do want to make some statements as Russell has just done. I'll try and keep it as short as possible. But one of the things I keep hearing and one of things that I'm aware of and every Aboriginal person whose been involved in the struggle is aware of, is that we continue to go to the courts and in a lot of cases we're successful in our endeavors and we win recognition of our rights and as what has been said here on a number of occasions by these two capable lawyers is that it's business as usual. No matter what we win it seems like the governments totally ignore what is being said in those courts and the positions that we have established for ourselves and continue to rape the resources on our lands, continue to ignore our rights, continue to arrest our people when they go out to exercise their rights and we find our people in the courts on an ongoing basis. I have to say that I believe that we have made a lot of ground in terms of establishing the recognition of some of those legitimate legal rights, but it must be pretty obvious to everyone that we've got a long ways to go. |
| [3,98] So I have a recommendation by the way for all you young people in here. Become lawyers because that's the only guaranteed income in British Columbia for the next 100 years because this is going to go on and on and on. And you can do very well for yourself in that area. But anyway, I don't have time for that of course, obviously, so I'm a bit of an activist I suppose. There was some suggestion here about you have to tune up some kind of action with the legal cases and the recognition of the legal cases. And that's what has been lacking up until this point is that our leadership have been too darn busy concerning themselves with the treaty process rather than talking with each other and planning how we should take advantage of these court cases that we do win and beginning to move ourselves forward. Instead, they've got us divided and rather than working in unity they've got each nation working separately by themselves as a matter of fact one of the points that was made by government at the beginning of the treaty process was that we weren't supposed to be able to talk to each other. |
| [3,99] All of the negotiations and discussions with government was to be secret. But the governments of course you know are allowed to talk to each other and plan how they're going to hold us back. So we're not dealing with people that are dealing with us in an honest fashion. We're dealing with people who in fact they're main objective is to continue to find a way to keep on swindling us out of what is rightfully ours and the recognition of what is rightfully ours. And they'll continue to do that unless something very serious happens to make them sit up and say okay maybe we better treat these people in a proper fashion. Being an activist I guess my recommendation would be for our people well maybe it's time that we shut the province down. And that seems to be the only way that we can make them sit up and take notice and begin to agree to work with us in a proper way is when you start to hurt them in the pocketbook. And when everyone else is hurting maybe they'll see how we've been hurting for how long? For a hundred and some odd years in this province and four hundred years across this country. So maybe we should be thinking about it in those terms. Anyway I shouldn't be saying these kind of things here at the post. But I can't help myself I'm sorry that's the way I am. But there is one thing...pardon me? |
| [3,100] Delbert Guerin: You haven't changed a bit (laughter) |
| [3,101] Bill Lightbown: (laughter) No, Delbert, I haven't, I haven't changed at all. And I'm not even getting any smarter and that's the worst part about it all. But there was one thing that Louise has been saying all the way through this whole her presentation. And she was talking about co-existing jurisdiction and co-existing title and those kinds of things and I guess I have a question for you Louise in regards to that. I'm not familiar with any kind of legal decision that has been made that would create a situation where we could address co-existing titles and co-existing jurisdiction. I know that it has been raised in some court cases that there must be co-existing jurisdiction and title. I don't accept that personally myself. I believe that there's only one title and that title is still being held by the Aboriginal people in this province and there's a long ways we have to go before we talk about co-existence and we have to recognize our legitimate title and deal with us in a proper fashion and with honour. I mean what are we talking about honour? I find it very difficult to find any honourable action on the part of any governments and any departments of governments who pretend to have some kind of authority and jurisdiction over our people. Anyway, I'd like you to respond to that, Louise, if you could and I'll quit now by the way. |
| [3,102] Louise Mandell: Do you know probably the debate about co-existing titles. I know the position you're taking is that the government still hasn't proved its title and similarly with jurisdiction government hasn't proved how its gotten jurisdiction. And I don't, you know, I don't want to have anything I'm saying suggest that that debate is finished. It's not. We haven't finished that debate. As far as, I really want to pick up on what Russell was saying about the limitations of the courts because when you use the courts you have the limitations of the law which continue to follow us around. That's the funny way that the western legal system works is they keep following precedents. So, if you're in the courts, what the courts have said, the best we've gotten, the best we've gotten to this point has been both in the fishing cases and also in Delgamuukw. The best we've gotten is that the Aboriginal title which has a jurisdictional component exists and also the Crown title exists in some way. We haven't had either of those the limits to them has never been defined but we do have statements in both the fishing cases and in Delgamuukw. That is the limit of the courts to this point. |
| [3,103] Bill Lightbown: I said I was going to quit but in fact I can't after what you've just said. I've been studying of course obviously all of the court cases as they come down and I'm pretty familiar with most of them. Up to this point again, I haven't seen anything, I've seen suggestions that you've just mentioned but up to this point I haven't seen anything that would clearly define how the Crown ever got jurisdiction over our lands and over our people. In fact, it just doesn't make any sense. Common sense would dictate that's an impossibility and until such time as our people agree that that has happened then it is non-existent in my mind. And of course it's all well and good for me to stand up here and say that but how can we possibly go into the courts of these people who have occupied our lands and pretended to hold jurisdiction over us and our lands, how can we possibly go into their courts and get any kind of a satisfactory judgment from those courts? |
| [3,104] This is foreign courts to our people in this land. And the people that are operating these courts are foreigners to us. Personally, I don't recognize the jurisdiction of the courts and the jurisdiction of the government over myself and I'm speaking for myself when I say this. I'm not speaking for all of our people that's decisions they have to make for themselves. So I have a bit of difficulty with any kind of court decision that comes down because it's not my courts and I believe it's time we established our own courts and I believe it's time that we begin to take those questions to our own courts and deal with them ourselves. Thank you. |
| [3,105] Laura Rudland: My name is Laura Redland and I am Haida-Tshimsian and I'm going to ask a very simple question to the three of you and for any other lawyers because I'm taking this from a very simplistic point of view. I'm looking at what has been taking place so far and I don't know all of the ramifications of a class action suit. But each case is costing both federal, provincial, municipal governments money and they're misusing...I'm just thinking of this very simplistically. They're misusing their place of authority, their funds, etc. and has that been a thought, something that the lawyers have thought about doing is taking a class action suit against the various governments for misusing both the people of this country, the resources, the courts and again, I'm not coming from a lawyer's perspective. I'm working out there as a teacher and also an advocate for the people that I work with. |
| [3,106] Marvin Storrow: I'm not sure that I understood your question entirely Laura. But if you're thinking of taking a class action suit against the federal government for misusing public funds you would win that suit in the sense that they certainly do that. But the question is do you have a lawful right to do that and I think probably you don't. Your solution is to not vote for that government. There's an overriding principle in our law that parliament is supreme and so parliament can be supremely wrong so to speak and frequently is but you can't sue them necessarily for being supremely wrong. So I hope I've answered the question assuming I understood it correctly. |
| [3,107] Lavina White (Lightbown): Whenever it's the woman's turn they always say there's no time left. I know Bill already talked to you about some of the things I was going to ask so what I want to ask is you know that we've been pushed out of the fishing industry. And the little bit of fishing that we have now we seem to be always in the courts and yet when the land was, when the people that came here stole the lands and divided it out, they said that the coastal people didn't much land. There's small reserves because we used, the ocean is ours. Now when we use the ocean and we get called into court and the courts certainly isn't our place to think we're going to win. I think what our people have to do is form on this side of the world a system for this side of the world and not go to your courts because your courts can break their own laws if they want to and get away with it. I think we need to form our own UN on this side of the world and I mean all of this side of the world not just BC or Canada or the States. Why do we spend so much money going to courts when we never win and if we win, nothing comes of it anyhow? It's usually a political decision. |
| [3,108] I think some of the things that Bill said I was going to talk about but I won't get a chance to tonight. He has more time down here but I don't, I come down once in a while. What I want to know is where to the hereditary people have a right to get involved. There's no money for hereditary people. You heard some of them tonight. Why is only the band council talking on the land issue when they're a part of the system of Canada. You know there's many questions that we could ask here tonight and hopefully get some answers. And how did you get jurisdiction and title over us. You know better than I do. There's been no war, there's been no agreement, there's other things and there's been none of that and yet you have jurisdiction. If we go into the courts that means we recognize their jurisdiction over us and I have a hard time with that when our people go to court. |
| [3,109] I don't think they should be in those courts. I think we need to use a tribunal of our own of all the strong hereditary people that know what the struggle is about, that we need to have our freedom again. Freedom is what the struggle is about. It's not about whose going to get a percentage of the resources because the resources are ours. And they're going to have to pay for what they've taken already. I think a lot of our, we don't get to the meetings, we don't have the money to get to meetings, we don't have the money to get to courts. And those courts won't agree with anything anyhow. Even when we win, what do we win? None of the freedom that we fight for. So, I want to know what we can do about getting the hereditary people to have some rights in the land issue and on the resources because I don't see anything left for our grandchildren. I look at my little grandchildren and I don't see a floor under them or a roof over their heads. Our trees are all gone. Now we've been moved out of the fishing industry. How do we get back in there? The things, I think most of it is by regulations that they charge our people in the fishing industry I don't think it's law, it shouldn't be if it is. How do we ever get to go to even your courts when the economy on the reserves is non-existent. Those are the questions I'd like to hear from you. |
| [3,110] Marvin Storrow: I'll ask Louise to answer those questions, they're too difficult for me frankly. |
| [3,111] Louise Mandell: I like Lavina, "whenever it's the woman's turn they say there's no more time left." You know Lavina, those are all really good questions and they should be raised. I know that we don't have time to even begin at this late hour but there's a whole speaker series that's coming up that I think that you know the best I can do is just you know record and witness the questions that you've asked and I'll be interested to see how your speakers over the next little while who have more time would be able to address some of them. |
| [3,112] Linc Kesler: Before asking you to join me in thanking our speakers tonight I just want to invite you back again of course next week for the fourth of our sessions where we'll be looking at returning to the treaty process and looking at two instances of treaties, one complete and one near completion and hear about what those processes have meant to the people involved in them. For tonight, please join me in thanking our speakers and the others who spoke. And thank you for joining us. |
|
Session #4 - February 8, 2005 Guest Speakers: Edward Allen, Kim Baird |
| [4,1] Linc Kesler (Introduction): Welcome back to UBC and the First Nations House of Learning for the fourth in our series of sessions on governance and land claims. It's great to see a nice crowd here in the hall and we also want to welcome the people who are joining us online via the internet. If you are joining us online and also if you're here in the hall we do want to draw your attention again to the fact that we have discussion forums available on the website. If you're watching online and have a question for one of our speakers tonight you can go to the discussion forum and post your question and we are keeping an eye on that forum here and we will relay your question to the speakers in the hall during the question period. After the lectures if you have, if things have been said that have stimulated your interest and you have an opinion on them we urge you to go to the discussion forum and post your opinion, see how other people react to it and join the discussion there. It's a good place to put forward opinions that you may not have heard in the presentations or to add things that you think are important that there wasn't time to mention or to put out another point of view and get some response to it. So please take a look at those forums and use them as a place to add to the discussion the things that you think deserve some attention. |
| [4,2] Well tonight's session is a chance for us to take a look at treaty processes that have been conducted successfully and are now being implemented and also at what the treaty process looks like for a community that is reaching the end of a set of negotiations and about to finalize a treaty. So we're very fortunate tonight to have with us two speakers who I think can give us a really clear idea about aspects of both the history and present circumstances of active treaty processes. Here from the Nisga'a Lisims Government is Edward Allen, he's the C.E.O. of that government and has been working in that capacity for several years. We have a special claim to him at UBC; he's a graduate of this institution so we're happy to welcome him back as well as an alumnus. He will be able to tell us both about some of the things of the circumstances and negotiations that led up to that historic treaty but also give us the perspective of someone who is working in a very day to day way with the implementation of the things that have resulted from that treaty and the effect it's had in the community and the things that it has allowed the community to do and other things as well that may still be issues of concern. |
| [4,3] And our second speaker joining us from Tsawwassen First Nation is Chief Kim Baird who is now concluding her third term as Chief and has just been nominated tonight as we've been sitting here for the election which is upcoming. She has promised not to make a campaign speech tonight. But she will be telling us about the process of negotiation that they have, Tsawwassen has been involved with for some time now in which she's also been the chief negotiator. UBC is also very proud to welcome her as a speaker since she is also a student at our institution. So, we're really happy to have both of these very experienced and knowledgeable people joining us tonight to think about this part of the larger discussion that we're having. So please join me first in welcoming Edward Allen as our first speaker. (applause) |
| [4,4] Edward Allen [Edward speaking Nisga'a here.] I'd like to thank the First Nations of this territory for allowing us to be here and share some of the experiences that we've had at under the Nisga'a Final Agreement. I am Edward Allen, my Nisga'a name is, the translation of it is grizzly bear entering upon the village and I am very thankful for the opportunity to speak to you today. I am also very thankful to be here speaking to Professor Paul Tennant who I understand some of you are members of his class and I just wanted to say that it is a great honour because today is my chance to lecture back at Professor Tennant and give some feedback. I just wanted to thank him for his leadership, I think, in the area of political science when he started there weren't too many people doing what Paul Tennant has done which is to ensure that the political experience of Aboriginal peoples in British Columbia became a matter of academic study and focus. I was, I remember how he described his evolution in that regard and what he said was the difficulty that he encountered was that many people were still studying about Aboriginal people in the university and what the key essential aspect was to go out to the communities and Paul Tennant is also well known in the Nass Valley. He's provided a lot of input to us in terms of what we've done and certainly I see some of our experience in his books so I just wanted to, us, to pay homage to Professor Tennant. |
| [4,5] I'll start my discussion which really involves three aspects. The first is what we were seeking going into the treaty process. The second aspect of my talk will cover what we actually achieved in the Nisga'a Final Agreement and then I'd like to offer I guess some personal reflections on our experience under the Nisga'a Final Agreement which came into effect on May 11, 2000 so we'll be coming up to the fifth anniversary of our treaty. I think the best starting place for our for any discussion is the petition the 1913 petition that was intended to be sent to the Privy Council in London. Much of our approach to the issue of the land question from the perspective of the Canadian legal system has been to say that the issue is a matter of its origins going all the way back to British justice. |
| [4,6] It's a longstanding issue and the initial appeal that was sent back in 1913 I'll just provide you with a little bit of context for the language and it reads as follows: "We are not opposed to the coming of the white people into our territory provided that this can be carried out justly and in accordance with the British principles embodied by the Royal Proclamation. If therefore as we expect the Aboriginal rights which we claim should be established by the decision of His Majesty's Privy Council we would be prepared to take a moderate and reasonable position. In that event, while claiming the right to decide for ourselves the terms upon which we would deal with our territory we would be willing that all matters outstanding between the province and ourselves should be finely adjusted by some equitable method to be agreed upon which should include representation from the Indian tribes upon the commission which might then be appointed." So the issue there is one of you can see in the language some of the elements which formed the basis of our settlement. The first is that we of course are the First Peoples of Canada and certainly in the territory of the Nass Valley. We have always owned the land and as our late President has said, James Gosnell, we are Aboriginal title, Aboriginal title comes from us. |
| [4,7] In addition to that we of course as you can see from the brief recitation of the Royal Proclamation we see ourselves as willing to share the land and that's consistent with our (word?), our common goal traditional philosophy. The objective of the treaty was not to secede or create a separate state but to negotiate our way into Canada. To be full and equal participants in Canadian society and this is consistent with as I pointed out our common goal philosophy sharing, respect, peaceful co-existence. Notions which interestingly enough which the Canadian legal system and political system are coming to grips with as and starting to better understand when you look at it from the perspective of the principles and the Quebec succession case there the Supreme Court of Canada goes to great lengths to talk about a principle that we've always understood which is that we are full participants within Canadian society. |
| [4,8] I'll talk a little bit about as well one last notion well two in fact. One is that we as the Proclamation refers to we've always been willing to discuss the matter of the settlement of land question through negotiation rather than litigation. Litigation is seen as a last resort for us. The idea is that when we deal with the land question we also are taking the position that self-government is integral to that. From the beginning our relationship to the land and our governance in respect to the land has always been one. So those are some of the I think background principles in terms of what one can see when we're talking about the Nisga'a Final Agreement. The values that are laid out as far back as the 1913 petition and even farther are reflected in the treaty that we have today. So I'll give you I guess some of the highlights in terms of what we actually achieved under the Nisga'a Final Agreement. The first is, is that we achieved ownership in fee simple of 2000 square kilometres of what's called Nisga'a' lands. So we own that, we own it in the traditional sense of from the heavens to the core of the earth. It's unrestricted fee simple interest. |
| [4,9] It's two hundred, we've received as well in the, through capital transfers, $280 million in adjusted dollars over 14 years. As well, we've received $38 million dollars annually in adjusted dollars in respect of fiscal financing agreements and that's kind of like the gasoline for our engine of government and from it we provide, we receive funding in respective health services, education, post-secondary education, local programs and services and to carry out the other responsibilities that we have as a government under the treaty. As well, we've achieved recognition of our hunting rights for food, social and ceremonial purposes in over 16,000 square kilometres of area referred to as the Wildlife Area. We also have the ability to and have created our own licensing scheme in respect of hunting. So when Nisga'a hunters are hunting on our lands their hunting under our jurisdiction, their hunting under our permits and licenses they're not hunting under B.C. Wildlife permits or licenses. |
| [4,10] Similarly, in respect of fisheries we have the right to harvest fish for food, social and ceremonial purposes in over 26,000 square kilometres referred to as the Nass Area and that's also for food, social and ceremonial purposes but we also have the ability to establish a commercial fishery. So that commercial fishery is one whereby our own Nisga'a fishers receive permits under our jurisdiction and our governance to go out catch fish and sell it to the Nisga'a Nation we in turn are selling it through a joint venture agreement with a corporation and the idea of that is that we regulate our own fishery. We establish what our own limits and approach is to fisheries we are hunting under our own legal regime we are not fishing, I beg your pardon, under the Department of Fisheries and Oceans legislation. As well we achieved repatriation of our artifacts and also the treaty recognizes our inherent right of self-government which deals with areas of lands, languages, culture, education, health, child protection, traditional healing practices, fisheries, wildlife, forestry, environmental regulation, policing and the notion of establishing a mechanism setting out the relationship between those jurisdictions that we have and federal and provincial law. So those are some of the things we've achieved under treaty. |
| [4,11] I'd like to talk a little bit now about the notion of our governance in terms of the evolution of Nisga'a Government. The first provision of the Nisga'a Final Agreement sets out that the Nisga'a Nation has the right to self-government and the authority to make laws as set out in the Agreement. Thus, our own law making authority and right of self-government is explicitly set out in the first section of the self-government chapter. As well, the treaty recognizes that the exercise of our Nisga'a Government will evolve over time. And essential to this evolution is the relationship of laws. The introductory chapter of the Nisga'a Final Agreement sets out that federal and provincial laws apply to the Nisga'a Nation and to Nisga'a villages, Nisga'a citizens, Nisga'a corporations and so on. So the idea is that in terms of how we've resolved the jurisdictional issue what we've said is okay we're willing to allow federal and provincial laws to apply to us but if those laws conflict with one of our rights set out in the treaty or some of our law making authority then we have to look to the treaty to determine how that relationship of laws is resolved and then what you will find in each particular section where we have a law making authority such as we have the authority to enact laws in respect of language and culture. |
| [4,12] The idea is that if a federal or provincial law has an aspect that conflicts or is inconsistent with our law making authority and our jurisdiction then our laws trump theirs. Our laws prevail to the extent of the conflict or inconsistency. So there are other areas in which federal and provincial laws would prevail for example in the areas of say healthcare. One of the or in the provision of social assistance, health, public order and safety or emergency preparedness those are some other areas and that is based on the notion that our legal system, our jurisdictions need to be somewhat matching what the federal and provincial systems will do so we have areas where our laws prevail and areas where their laws will prevail. Then we have a third category of jurisdictions where Nisga'a laws and we use the expression "must meet or beat" federal or provincial law. So the idea as in the areas of forestry practices we've always set the standard that sure there might be the forest practices code we will agree to meet those standards or beat them. We have law making authority in respect of forest resources we own the forest resources and so we've set up an entire regulatory regime based on our approaches our values and our system of government and we've done that all in four years. |
| [4,13] In those areas such as for instance child protection we have law making authority if we enacted laws as long as we've done so in a matter which for instance takes into account and puts paramount the best interest of the child we can enact laws in those areas. So those are some of the three areas where we have differing kinds of authority. Ours were circumstances where our laws prevail circumstances where their laws prevail and circumstances where laws we enact must meet or beat federal and provincial law. Now one of the interesting aspects that follows with this kind of approach is that we control the pace and evolution of our government. On May 11, 2000 when our treaty came into effect we didn't have to create an entire framework of loss we didn't have to come up with our own traffic and highways act, we didn't have to come up with our own criminal code we were able to deal with those areas where our interests were of greatest concern and we enacted laws in those areas. We enacted 18 laws. Outside of those laws we continued to rely upon the federal and provincial system and that's going back to that notion that federal and provincial laws apply to us. But if any of those laws conflicted then we go to the treaty and the provisions that I've just described. So, that was one of the main things. We don't have to create codes for every aspect of life that we have as Nisga'a citizens. |
| [4,14] The other aspect of that is that we can control the timing and pace upon which we enter that field. It's only after we've done the proper and requisite planning, budgeting and so on and legislative development and policy development it's only after we've done all that work that we would then decide okay we need to enact a law in this area. So in that way we don't have to create everything there's no rush. It's all dependent upon what our priorities are as expressed by our people. I'll also talk a little bit now about I guess some of the experience we've had under implementation. What does it mean in sort of a concrete sense and it's interesting because in four years we've done an impressive amount of work. Governance has been the main area of focus. Law making, setting up our administration, those have been the priority areas. So for example, in four years we've set up our own land title office. We've created our own land title system and that's in respect of registering any interest on Nisga'a lands in respect of what we call Nisga'a village entitlements or Nisga'a Nation entitlements. So imagine setting up an entire land registry for your land holdings. We did that within the first four years. |
| [4,15] We also came up with our own land use process because we own the Nisga'a lands we have jurisdiction in respect of Nisga'a lands. We are ultimately the decision makers in respect of how those lands are to be used so when you compare with the complexity of and length of time that it's taken the provincial government to establish land use plans for British Columbia we've been able to do that within the first four years. We've also had setting up of our wildlife management plan which sets out our entitlements. We've also and we have to do that every year. We've also done our fisheries management plans. We've operated our own fisheries licensing and permit system, we've established a mechanism for the harvest and the marketing of our fisheries. As I've mentioned, we've created a joint venture for the sale and marketing of our fish and we've even also established our own enforcement mechanism system whereby we've established our own Nisga'a Offence Act we've established a process for Nisga'a enforcement officers issuing of tickets and even gone in and started working with the courts in terms of and the court administration because as the treaty provides once we have law making and enacted a law in respect of offences we can use the provincial courts to enforce those tickets so we've done a public education program at the B.C. legal system. We've met with the provincial court, the B.C. Supreme Court, the Chief Justice for British Columbia and briefed him on how the treaty works and how these tickets would precede all that in order to ensure that when we enforce our laws we have a forum for the judicial determination of the enforcement of what we do. |
| [4,16] There are many other areas where we have the ability to enact laws and take over jurisdiction for example we can take over policing. We can establish our own police force our own Nisga'a police force and our own Nisga'a police board. But as I pointed out earlier, it's only when we're at that point where we're saying this is the priority and this is what we want to do. The legislature of our government has said that we should start looking at that so that's what we're doing at this point. We are also able to establish our own Nisga'a Court down the road for the adjudication of disputes under Nisga'a law. So but we haven't done that yet because the idea is when the time is appropriate we can take over that function and we've met with some Aboriginal judges who are operating out of Alberta and Saskatchewan and spoken to them about just ideas about what first steps we would take when we set up our own Nisga'a Court. So, those are I think some of the interesting kind of developments that we've had under our treaty. |
| [4,17] What was interesting about our development and our process was that one of the things we had was continuity. When our negotiating team who had been at the table for 20 years to negotiate the Nisga'a Final Agreement we had essentially ensured that when we move into those areas we have the ability to approach the issue from the perspective of making sure that our team is still in tact and that just happened by coincidence in the sense that many of our elected officials who were on the negotiating team ended up as the first government of Nisga'a government. Many of the individuals who were involved with negotiations at the negotiating table ended up as administrators. I'm actually a comparative newcomer I've been with Nisga'a Limis for 8 years. Many of the members of our team have been long there over a decade and up to 20 years so the idea is that when we move from the treaty table to our governance many of those individuals were still involved and that was through election and that was through competition for jobs within the new Nisga'a government. So we were able to I guess achieve a certain level of consistency. |
| [4,18] One of the other interesting aspects of how we approached Nisga'a government is that we were comfortable with using approaches used by other governments. We've taken the approach of don't reinvent the wheel. If there's a legislative mechanism out there that's working for other governments it's not a problem for us to use it for our own administration. So for instance under our own Nisga'a enforcement act we modeled it to a certain extent on the provincial enforcement act and what that's done is it's assisted us in terms of when our tickets go to court, provincial officials don't have objections in dealing with them and that's actually quite remarkable for me the fact that a judge is able to sit there, adjudicate a matter with respect to our law, the staff who are processing the ticket are using a Nisga'a ticket and are we going to have our own for lack of a better word Nisga'a prosecutor. So we have control over all those essential aspects of our legal enforcement and that's an interesting experience. |
| [4,19] One of the other areas when we talk about Nisga'a government is the notion of priorities. For the first four years much of our work was focused on governance just getting government right. Making sure that we had the appropriate laws whenever our laws needed some fine tuning our legislature met and made the necessary changes to those laws and enacted those laws. Now, and so even things like the development of our rules, it's interesting when you're starting a government much of the treaty provided a very general direction but you still have to do all the detail work and it's interesting because in order to pass a law you have to have a Lisims government act telling you how you're government is going to be operating. You need house rules in terms of how that law making authority is going to pass laws. You also need a code of conduct which ensures that members are carrying out their duties in accordance with the values and expectations of Nisga'a citizens. So all of that work had to be done within four years. So it's an incredible amount of legislation in since the start of our governance we have enacted 51 laws that's in four year that's a pretty impressive legislative record and some of those acts are enormous. I was involved in the full development of our Nisga'a Offence Act and that's over a hundred sections easy and we were able to do that as part of our legislative time table. But that gives you a sense of what it is we were focusing on, it's governance, making sure that we have what we need in place to govern properly. |
| [4,20] Now the focus is shifting towards economic development that's the number one priority for Nisga'a Nation. The legislators we have met and they had a workshop where we sat down and said what are our most important concerns? Things such as employment, job creation and economic development, business development, those were on the top of the list. So in that respect we're now moving to start to develop policies. Policies for instance in respect of an investment policy. What are we going to invest in order to ensure the best possible return for our Nisga'a citizens? Economic development and business development, what is the difference? What is the role of government in that? One of the things that many of the people in this room who work in band government or tribal councils will tell you government gets it all. Every expectation that's out there is placed upon government in one form or another and now that we are entering the area of economic development it's time for us to reassess that implicit assumption that's out there in terms of what we as administrators and government officials do. Because the model of government driven economic enterprise has a certain role and history but in speaking for myself I've yet to see governments that are really able to effectively run business development as well as entrepreneurs. What we're wanting to encourage is Nisga'a entrepreneurs to step forward and utilize the opportunities in the treaty because that's what much of it is about. |
| [4,21] The land is there because we live on it. We have a relationship with it, it's our means of sustenance so we have resources such as forestry, fisheries, and how are we going to develop those resources? How are we going to market that overseas? We are now starting that discussion within Limim's government and then between the village governments create a kind of wider forum for discussing that particular issue and it's a very interesting time because it's also about what we as government do. How do we encourage entrepreneurs and so on? So that's kind of where we're headed and those are some of the issues and it's interesting because we have control over our governance, we have control over our daily lives, the Indian Act no longer applies to us and what we see ourselves as now is participants regionally in the northwest in particular, provincially and globally. |
| [4,22] We've also had the opportunity to share our experience in government with a number of different nations there's the Sami who are an Indigenous peoples from Norway, Russia and Finland. They've come and met with us we've even met with the Taiwanese delegation who've come to our legislature. We've had Norwegian legislators come who are looking at developing legislative models for the Indigenous groups within their countries and we've also met with many of the First Nations in British Columbia and across Canada and have done presentations with them. So our approach as well is about sharing our experience with as many people as possible because the idea is that we think that we have a pretty good treaty that meets our needs and if it can be useful to other Aboriginal communities then we say, we encourage people to take it and use it because there's one thing that's for sure is that the treaty has been judicially recognized. |
| [4,23] In the first time in Canadian legal history to this point that we have a decision called the Campbell decision which affirms the inherent right of self-government of the Nisga'a Nation and our message is that if we have that inherent right of self-government then so do all the other Aboriginal peoples in Canada because in order for us to have it, it has to be within the Constitution. There has to be room within the Canadian Constitutional framework to recognize the notion of Aboriginal self-government. And so that is a recognized Aboriginal right since the abandonment of that particular appeal, it's now the law of the land so that's an example of the message that we're trying to encourage for other groups to use what we have and what we've done. For myself, I don't have much more to add to that, I hope that my comments have been useful. I would also point out that we do have our website where we have some information if you wish to look at it. We have information about our laws we've enacted our Nisga'a Constitution and our Nisga'a Lisims Government Act and information about resource management and so on and you can find that on our website which is "www.nisgaalisims.ca." Thank you. (APPLAUSE) |
| [4,24] Linc Kesler We've completed our technical servicing so we're good to go for our next segment and we're very happy to welcome our next our second speaker tonight Chief Kim Baird from the Tsawwassen First Nation. |
| [4,25] Kim Baird Thanks. I'd like to acknowledge the Musqueam people for being on their territory tonight. My ancestral name is Kwuntiltunaat and that comes from my great great grandfather who's from Tsawwassen. I'd like to thank Linc and the organizers for inviting me this evening as stated already I'm the elected Chief of the Tsawwassen First Nation and also the chief negotiator for treaty negotiations and I've been involved in Tsawwassen negotiations since 1990. Like many First Nation leaders our council has worked very hard to enter the economic mainstream and we're trying to accomplish this through various initiatives such as working with industry, working with government through treaty negotiations and maximizing the limited opportunities we have under the Indian Act. |
| [4,26] I'll be touching on our accomplishments on all three of these areas although my main focus has been and will continue to be treaty negotiations. So I will mainly cover that area. My presentation will include why we are in treaty negotiations, a summary of our Agreement in Principle or AIP, information about how we reached our AIP at our table and an outline of some of the issues or challenges I think we face for reaching a final agreement particularly when you consider the fact that we're in an urban environment. In July we finalized, in July of 2003 we finalized negotiations of our AIP and after an intensive community consultation process the members of our community ratified it in December of 2003. In fact over 70% of our members participated and over 70% of those voted in favour of the AIP and it was signed in March of last year. I think it's fundamental to explain the reasons why we are in treaty negotiations and why I am supportive of treaty negotiations. |
| [4,27] Tsawwassen like other First Nations has dreadful socio-economic conditions ranging from unemployment, poor health and education statistics to sub-standard housing and I think my biggest job as Chief is to protect Tsawwassen rights and improve the quality of life for the members and that's my campaign speech by the way. I think our ability to create wealth on-reserve and under the oppressive Indian Act is greatly hampered. There are very few economically successful First Nations who operate under the Indian Act and to my knowledge those First Nations that are successful have overcome great odds and have leaders that have dedicated their whole lives to making those successes occur. Ultimately I view treaty as a toolbox that will help my community to rebuild itself to its traditional level of wealth and as a Coast Salish Nation living at the mouth of the Fraser River traditionally we were a very wealthy people. Our objectives are to have the tools to become self-sustaining and we want our treaty to provide us with enough land, cash and resources to rebuild our wealth. More importantly and in my opinion I believe we need we have a need for autonomy so we can end the cycle of dependency that the Indian Act has perpetuated. |
| [4,28] I also see the need to develop a better relationship with the governments of British Columbia and Canada and I see a treaty as a mechanism for a government to government relationship that has been lacking since European contact, reconciliation of our rights and title with the Crown is also an objective and no matter how I dissect it, I keep coming to the same conclusion that negotiations are the best way of reaching the goals or objectives that I've outlined and that's not to say the road to treaty has not been difficult or challenging. Our approach to treaty negotiations has been on trying to meet our future needs. We've done serious research to set out an order of magnitude including economic modeling to establish what sort of capital transfer we might need where population growth projections to establish what land base might be required over the next 100 years. |
| [4,29] Our research accomplished three main things from my perspective. First, from a planning perspective it has allowed us to establish what our future land, cash and resource needs are from a long term perspective and this is valuable for planning purposes with or without a treaty process. Secondly, it allowed us to formulate proposals to the governments for land and cash and fish that weren't figures pulled out of thin air. And finally, it allowed us to comparatively measure the government's counter proposals against the future needs we had established. When it comes to the cash value of government proposals I think this has been a major stumbling block for successful treaty negotiations in B.C. From an urban perspective it's challenging to get a quantum of land that matches our community expectations due to the high value of lands in the Lower Mainland. We've advanced our negotiation by engaging Canada and B.C. in the value aspects of our treaty and ended up with the Agreement in Principle that we have today. I'll summarize some of the highlights of what is in them and what has been deferred in this AIP. The cash component includes $14.2 million amount of money of which $10.1 million of it is capital transfer and various targeted funds make up the remaining $4.1 million. |
| [4,30] I guess I should put some context to this as well as that our population is about 330 members on and off reserve. So it's quite a bit different scope and scale than the Nisga'a. There are fiscal issues that still need to be addressed such as five fiscal agreements and tax agreements that are outside the final agreement. But getting the new fiscal relationship between B.C., Canada and Tsawwassen is critical and I don't want to underestimate the importance of these issues because we have huge concerns about the government's approach to fiscal matters. The current federal policy would see a claw back of at least 50% of all revenues we made which would be a serious disincentive for creating wealth. This would be on top of any taxes we may be subject to after treaty. We want to contribute to our programs and services but only on a basis comparable to other Canadians and communities. As far as our land component, it contains 427 hectares of land, 365 of which would have our jurisdiction over it and fee simple 62 hectare parcel that would remain in the Corporation of Delta's jurisdiction. This would be on top of our existing reserve. There's several issues that need to be resolved in the land chapter including the agricultural land reserve is to apply on all the Crown lands that are identified in our Agreement in Principle. |
| [4,31] We have voiced our concerns that with such a limited land base we will need flexibility in how we manage our lands and governments maintain that the designation needs to remain in place for a number of reasons including the fact that the value of lands would increase than if the lands were outside of the land reserve and therefore our quantum would decrease even more. In our AIP outline and process for the parties to engage in a process with the land commission to assess the prospects of removing these lands from the (word?) and this would be done before the final agreement was completed. Another land issue we have to work through is known as future additions to our lands or in other words adding lands that would be under our jurisdiction post effective date of our treaty. Most treaties have process provisions in it that lands can be added to a First Nation land base if all the parties agree to it. Our AIP proposes an approach where the three parties would through a negotiation process pre-select an area that will be targeted to be added to Tsawwassen lands if we are able to acquire them with our own money. This process makes the land package proposal in our AIP a little more meaningful. If we successfully complete negotiations that would identify pre-selected area then we will make a proposal to any effected First Nations and any effected municipalities to seek their consent. Our AIP states that consent cannot be unreasonably withheld though. |
| [4,32] Recently this issue has had some local media coverage recently due to municipal representatives complaining about this provision and I personally think that it's a little premature to fight over this issue because there isn't a proposal in this matter yet and due process will be followed when it is created. As far as the resources component I'll speak about fish because other resources, chapters are pretty modest in our territory. Being in the Lower Mainland makes traditional resources limited. Our fisheries chapter provides for a domestic allocation that would provide for an average of 12,000 sockeye and in abundance based on economic allocation that equals .70 % of the Canadian total allowable catch for an average of 30,000 sockeye annually and I have to stress those are averages that would change from year to year based on the actual run sizes. We still need to sort out the method of harvest for economic fisheries. It remains to be determined whether Tsawwassen will harvest its fish through a harvest agreement like the Nisga'a or by some other method of course most of us are aware that the commercial industry would like to see the industrial solution where we would hold regular commercial licenses and our preference would be a treaty protected priority economic fishery. |
| [4,33] It will be interesting to see what the negotiated outcome of this issue is particularly with case law developing and other implications because the overall industry may face broad changes due to potential implementation of the Pierce/Macrae report which would turn an opportunity base salmon fishery into a quota fishery. As far as the government's component of our AIP, the principles of our governing structure is included as well as a list of powers that we have to negotiate and some of you may be familiar with the conflict we've had with our municipality, Delta, as it pertains to servicing issues and our AIP has addressed that this and that B.C. commenced to ensure that servicing arrangements in particular the provision of water will be addressed by final agreement. The AIP had governance issues deferred as well such as the scope of law making powers to be identified in the government's chapter. The critical issues is the placement of these powers whether they will be in a final agreement with Constitutional protection or whether they would be in a government agreement without Constitutional protections. The scheme is actual proposal by British Columbia and in the AIP the parties have committed to attempt to reach agreement on this matter. But it is a major point of contention. The whole concurrent law model and the certainty model that is contemplated in our general provisions chapter and which is also the same as the Nisga'a treaty where federal and provincial and Tsawwassen laws apply simultaneously hinges on jurisdictional matters being resolved to our satisfaction in the final agreement. We need certainty over our law making. |
| [4,34] The AIP also identifies the need for the final agreement to provide processes for our non-members on our reserve to participate in decisions of Tsawwassen government and institutions that affect them as well as access to appeal their review procedures on decisions our government has made. Now that I've summarized our agreement I'll touch on some of the issues we are facing due to the urban nature of our territory. The first issue we face is the fact that we have a very limited land base. Our current reserve is limited in size and limited as far as useable land and the land proposed for our treaty is limited in size as well. This is due to the value of land as I touched on earlier and an increased land value has meant a decreased land base for our community. Land management will also have a different set of complexities due to the limited land base we still continue to have so planning will be integral and we will want to maximize best use of our lands. We also have the additional complexity of having the ALR to contend with and I touched on that as well. |
| [4,35] There are environmental issues as well. Our territory is far from pristine. Let alone the fact that our existing reserve is crammed in between causeways supporting the provincial/national transportation infra-structure. So we have limited resources to harvest. We are facing issues that are at the negotiation table right now and trying to deal with the fact that all our traditional sources of wildlife are no longer contained within our traditional territory. Do we establish empty hunting rights in our treaty? Or can we figure out something more creative while remaining respectful with other First Nation territories. We have no private access to nature which is important for some of our ceremonies. We have no forestry resources so even getting firewood for ceremonies in our longhouse is difficult. These are major challenges that face our community and council everyday. I've talked about issues that are internal to our community but I've found that there are a number of issues that concern the public and they bring municipalities as well as negotiations unfold. The majority of B.C. lives in our traditional territory and every interest group you can imagine have the opportunity to be consulted on our treaty negotiations. |
| [4,36] The most common things that people or groups have raised are generally planning issues or concerns. Some people want or even expect to control development on our lands for a variety of reasons whether it's for protection of farmland or the environment whether it's to control growth whether it's related to traffic concerns or whether it is people are afraid of the big box developments. These issues bump up against regional government's issue. How will Tsawwassen First Nation fit in with the G.V.R.D. and its planning initiatives? How will the livable region strategy be impacted? Will we be provided with such services as water and sewer as other municipal governments are? The media, politicians and interest groups are very concerned about our future plans. Some want to see municipal style official community plan before they will support a Tsawwassen treaty. Some people are reluctant to accept that we will have autonomy over land use planning. Some people don't want us developing our lands. Some people don't want us to have the same opportunities that other communities have enjoyed for the past century and more and I guess in their view we are supposed to be responsible for the remaining environmental, agricultural and growth issues in the Lower Mainland. Even though we were never consulted on regional plans for the past century of development some won't accept that Tsawwassen members are also concerned about quality of life issues and others don't want to face the fact that development will likely have to occur if we want to overcome poverty. |
| [4,37] Needless to say these fears make public support of a Tsawwassen treaty more challenging especially when some groups and individuals exploit these sorts of concerns and fear-monger. Earlier I highlighted the serious issues outstanding in our AIP. Much more work is required for the parties to reach final agreement. Many people ask how long it will take to reach a final agreement. To give you an understanding of the lengthy process it's been so far it took us a full decade to reach the Agreement in Principle. B.C. had identified the desire to complete in a one year time period since last spring but negotiations are taking longer than that. Changing case law is another factor that can change the nature of negotiations. The recent Haida and Taku cases impact government's consultation duties and our treaty needs to reflect these changes. Changes in government always have the potential of impacting negotiations. We have a provincial election upcoming so we'll have to wait and see how that may impact us. Ultimately continued flexibility, creativity and innovation are what are needed for a final agreement at Tsawwassen. |
| [4,38] The core principle of negotiation based on government to government is key. A mutual goal of reconciliation must be the foundation of a Tsawwassen treaty. If these elements are met then a final agreement is achievable. If the parties maintain a political will to reach a final agreement and overcome obstacles and controversies collaboratively then we can do it and we do have some very controversial issues to work our way through and much is at stake. The final agreement will have to have many compromises by all three parties. Governments want certainty in relation to lands and resources and we want certainty in our ability to govern ourselves. As stated earlier we are undertaking other initiatives to improve socio-economic conditions. We approved a land code in 2003 that takes over about 25% of the Indian Act directly within our community. We are facing transitional challenges but ultimately we cannot solely rely on a treaty because we can't guarantee that we will successfully conclude negotiations or that my community will find the provisions sufficient to meet their future needs. We completed an accommodation agreement with the Vancouver Port Authority last year which provides compensation in mitigation monies as well as construction contracts, employment and economic development opportunities. If we realize all the benefits of this agreement it's potentially worth $47 million. While this is a significant achievement for our community it still doesn't provide us with an increased land base or autonomy. |
| [4,39] Even if we could get a number of accommodation agreements, our long term needs wouldn't be met by that. In my opinion in treaties is what will provide for our long term needs. Make no mistake me and my community members are aware that there are many undesirable aspects to our Agreement in Principle. All the First Nations who are negotiating a final agreement right now are under a microscope. I'm facing criticism from the public, from interest groups, from local governments and from other First Nations. Our AIP contains unpopular benchmarks most of them set by other modern treaties in Canada. Items such as phasing out of tax exemptions, certainty models that modify our existing Aboriginal rights, loss of section 91(24) or in other words Indian reserve status in the Canadian Constitution, a limited cash line, quantum and other items are not new to our table. Other modern treaties such as the Yukon or the Nisga'a has established some of these parameters that said we are still in negotiation and I believe we will have a better chance at changing government positions during final agreement negotiations than we did at AIP or by being outside of a negotiation process. Although there are many benefits and advantages, I'm fully aware of that, there will be trade offs at the conclusion of a negotiation. |
| [4,40] I'm often questioned about my views of other approaches to resolving outstanding Aboriginal rights and title. What about direct action and litigation? I'm supportive of any First Nation and its journey to resolving outstanding Aboriginal rights and title. We have chosen negotiations but our ability to negotiate right now is based on great effort from all British Columbian First Nations and their fight for justice for the past century and more. I believe that it will take continued efforts from First Nations at all levels to resolve our issues including through litigation and other confrontational activities. The sad fact is that the basis of any rights Aboriginal people have gained has been based on confrontation in the history of this province. Tsawwassen is now trying to negotiate in what we sincerely hope to be a successful route but now only time will tell. Thank you. |
| [4,41] Linc Kesler Thank you very much for those really interesting and informative presentations and we know have some time for questions both from the hall and then from the people who maybe watching online and I think tonight maybe we will revert to our first practice which is we'd like to invite you to if you have a question from the floor to state your question, I'll try to summarize it to make sure it's get into the record online and then we'll have the response from our speakers. So, does anyone have a question to get us started? (audience member asks question, approximatly 30 seconds) Okay. The question was directed towards Mr. Allen and it's about taxation after the 12 years as the tax exemptions are phased out in the treaty where will the tax dollars go will they go back to the government or to the Nisga'a Lisims government or will they go to elsewhere to other levels of government? |
| [4,42] Edward Allen Under the Nisga'a Final Agreement after 8 years transaction taxes are exemption in respect to transaction taxes are phased out. After 12 years it's all other taxes which is basically speaking income tax. The treaty also provides that we have what is described as tax room. We can negotiate tax room because we would be paying taxes like everybody else but the notion is in terms of how those revenues are used. And it's an interesting question because there are a number of individuals who occupy a position similar to what I have and we're looking at the prospect of paying taxes. Many have said that the issue is not taxation it's what is the benefit in terms of back to our people and so that's what the treaty envisions is tax room. So, in fact, this part of this recent economic development forum that we had which begin discussions in this area that issue came up. So it's something that we're going to be exploring but that's the answer to your question. |
| [4,43] (audience member asks question) Linc Kesler The question was for Chief Baird and it was regarding the loss of natural resources through the effects of other developments in the area that were not the fault of the Tsawwassen First Nation that are now the consequence that they're living with and whether there will be compensation built into the treaty for the loss of those resources. |
| [4,44] Kim Baird We had launched a law suit against the Port and ferries and part of the accommodation agreement that we reached with the Port settled that law suit as well. So, the agreement with the Vancouver Port Authority had compensation aspects in it regarding the negative impacts to our foreshore. |
| [4,45] (audience member asks question) Linc Kesler The question is for both of the speakers and it's regarding membership under the existing or proposed treaty. Specific detail if someone from the U.S. were to marry someone who is a community member under the terms of either treaty would they would the status extend into them under the treaty and if that is a provision of the treaty would there also be any kind of a blood quantum criteria. |
| [4,46] Edward Allen Under the Nisga'a Final Agreement there's two aspects. The first is the enrollment and eligibility chapter which sets out the criteria by which any individual can be enrolled as a participant under the Nisga'a Final Agreement and basically what it reflects in general is our matrilineal aspect of our culture. In terms of my particular lineage for example my mother is (aboriginal word?), eagle and from the house of (word?) and the idea is that in terms of who I am, (word?), the idea of my membership comes from my mother and so the treaty been done to reflect that in general and the principle is as long as you can identify a matrilineal ancestor through birth or adoption, legal adoption, as a child essentially you're in the realm of someone who's who can make an application to become a Nisga'a citizen. So that's the first part of that aspect. The second component is that we also recognize that anybody who's Aboriginal and married in to our culture and been adopted at a stone moving feast in accordance with our traditional law that individual will be eligible to be enrolled as well. So right away we've made recognition for individuals to marry in, in accordance with our treaty. |
| [4,47] The second part of the answer in addition to this is that we make laws in respect to citizenship. We have that law making authority. Our laws need to ensure that whoever is eligible to enroll is a Nisga'a citizen if they're a Canadian citizen or permanent resident. But we've even gone further and said that in accordance with our law we've adopted individuals who are non-Nisga'a and so we've even have of course non-Aboriginal and so we have non-Aboriginal individuals, at least one, who has married in, has been adopted at a stone moving feast and is reckoned as a member of the tribe and she even speaks Nisga'a too. And so the idea is that's in accordance with our culture and that's reflected in our own citizenship code so back to your question yes, non-Aboriginal people can marry in and be recognized. |
| [4,48] Kim Baird We really haven't sorted out that issue for our final agreement but our current membership rules would allow the transfer of someone to become a member another Aboriginal person. But Indian Affairs won't recognize status under the Indian Act for these individuals. We actually have members who are U.S. citizens because of our proximity to the border but this is a problem because it really impacts our ability to provide services to all our citizens in an equal manner. So, it's a bit of a problem and we're hoping that this issue will be resolved in final agreement and as I stated we are still working on that in the context of our treaty. |
| [4,49] Linc Kesler The question was for Mr. Allen and it was regarding the way in which the traditional role of elders is represented in the Nisga'a treaty but then also with reference to circumstances of division within the community involving elders. |
| [4,50] Edward Allen First of all I want to commend you for reviewing those particular sections of the Nisga'a Final Agreement that's the first time that I've ever had anybody ask me a question in respect to that part of our dispute resolution chapter and the appendices which is where the detailed aspects are. In terms of the role of our elders there's many aspects sources of legal authority within our the treaty itself and our own Constitution and laws where the elders have a role an important function in terms of the operation of day to day governance. The first aspect of it is the council of elders under the Nisga'a Constitution we have established a council of elders, the chair of the council of elders is actually elected at large by Nisga'a citizens as a whole and Nisga'a citizens whether they live on Nisga'a lands or off Nisga'a lands are under Constitution equal and able to vote as long as they're 18 and over. |
| [4,51] So the notion is that we have a very broad community and so the chair is elected and that's the first part of that process and then respected elders are appointed by the communities to sit on the council and the council of elders deliberate on matters referred to it and also presents recommendations and passes resolutions which are forwarded to the executive for follow up and consideration so they have that role and in times of vacancy of government whenever there's a, for instance for whatever reason, an absence of government it's the actual council of elders working along with the executive of our government that takes steps to place governance back in to that particular community if there was any reason why that there was a gap in governance. So as you can see just from those two provisions they're very involved instrumentally. I have other aspects I could go into but I don't want to take up all the time. But I have to say that in terms of the particular protest that you're referring to perhaps I could chat with you a bit more about that because I'm not sure exactly what you're referring to. There have been a number of things going on recently in communities and I'm not sure which one you're referring to in terms of an elder's protest so if I could speak with you I can perhaps provide you with a bit more information. Thank you. |
| [4,52] Linc Kesler The question is for similarities between the processes we've described tonight and developments in Nunavut. |
| [4,53] Edward Allen I'll start and I think the first thing is that we're probably while I can speak for myself in saying that I'm a little rusty in the Nunavut Agreement. So I'm not able to speak very definitively on that. Obviously their situation is quite a bit different in that it was interesting to listen to the presentation because where you're located is has an enormous significant impact from my observation in terms of what you can start to talk about in terms of land quantum that's an important factor I mean we're located in northern British Columbia, our settlement area is as I pointed out 2000 square kilometres traditional territory in terms of where our fishing rights are it's about 20,000 so the idea is that we're in a position even though there are various interests there we were in a position to negotiate that. Of course when you're talking Nunavut you're talking a lot bigger and their issues of course are also mediated by the fact that there's a lot of sub-surface development there. |
| [4,54] One interesting important distinction is that the of course the Inuit are an Aboriginal people but they are not recognized as Indians under the Indian Act and so the issues that they're dealing with have been the basis of coalition that we're involved with in terms of trying to alter federal policy in respect of implementation of treaties. It's an ongoing sort of issue and we get a chance to share experiences but Kim will fill her in on that too. But those are some of the things that come to mind right now. Also, the basis of their government whether it's constitutionally protected is another point I think of comparison. As I pointed out, the position we took going into the treaty negotiations was that if there wasn't going to be self-government and constitutionally protected self-government there wasn't going to be a Nisga'a Final Agreement and at one point it almost came to that. It almost came to that and nevertheless we were able to resolve the issue at the through the federal system and get it back on and I think the point the message there is that it can work. I mean Canada is an example of a pluralistic society where in the Supreme Court of Canada has recognized that. It just, I don't quite understand why there is this resistance to recognize this right of self-government. Sorry I digressed so I'll just turn it over. |
| [4,55] Kim Baird I don't think I could really speak with any knowledgeable basis at this point in time on that particular agreement. I'd have to review it I guess on the stack of different agreements across the country that I have on my desk. But yeah I'm sorry I'm unable to help. |
| [4,56] Linc Kesler The question is for Mr. Allen and it's whether there has been a change in the emotional and physical health of the communities subsequent to the implementation of the treaty. |
| [4,57] Edward Allen Well it's interesting we have some indicators which are going in a certain direction and others that are going in another, I guess on the upside when you look at the fisheries program that we have established we have a number of individuals who have caught the minimum amount of fish or maximum amount of fish they can and they've qualified for unemployment insurance that's a big plus for individuals especially when you consider how hard the north has been hit by the softwood lumber and the state of the fisheries industry so being able to get employment and combine those activities to be able to qualify for U.I. is a significant step forward so right away there's a strong correlation in just about every study you can ever imagine between economic development and health. |
| [4,58] In terms of other indicators, youth are also a significant priority for us right now. There have been a number of incidents in the community involving youth which point to a real concern and its part of the general demographic trend for youth especially between the ages of 20 something to 29 age group. So on that one, we're starting to get a sense of some of the concerns that are happening in other communities with alcoholism, drug use and premature individuals who lose their lives early in life that's a big concern to us and so we're starting to put youth as a very significant priority. I mean every issue is a priority it's just a matter of wanting to pay special attention to that. I will say that in future years we have published an implementation report and to repair that report we've focused our attention on just that issue on health indicators, social issues and economic indicators. So as time goes on we can answer the question that you've raised to our own people in very objective numbers over time. |
| [4,59] Linc Kesler The question is why I think why Aboriginal people are in position of having to negotiate for lands when the rest of Canada, other Canadian citizens aren't in that position. |
| [4,60] Edward Allen Well I can't speak definitively on your question. I hear in it the idea of what is the onus on provincial/federal governments to negotiate with First Nations around Aboriginal peoples and I think there's three parts to that. Prior to 1982, of course there's the Calder decision which says Aboriginal title is still unresolved and the Comprehensive Claims Policy is put in place and that's the one that we negotiate under to get our treaty. Then you have in 1982 the Canadian Constitution being repatriated and it says in section 35: "all Aboriginal treaty rights are hereby recognized and affirmed" that means the rights we have whether they're written down in a document or not if there's an Aboriginal right there the federal and provincial government have to address it. |
| [4,61] And more recently, Delgamuukw and the Haida case have said that that evolution of that understanding of our rights has reached the point now where before a government starts to look at doing any kind of development which is going to effect an Aboriginal right they must consult, those governments must consult with the First Nations so and Aboriginal people so the idea is that there is now as you say an obligation and the real challenge or problem is that federal and provincial governments don't always look at it that way. There is for example as I pointed out inherent right of self-government but what is there to make sure that the feds and the provinces are dealing with that at the negotiating tables. You know, what's happening in eastern Canada groups which are wanting to negotiate are going back to court in order to get a certain definition of their Aboriginal right so they can go into the negotiating and say you see you wouldn't listen to us before when we were negotiating so we had to go to court get this right proven to this extent so we could force you into saying that you can't ignore the right that we are talking about. So that's I think the answer I can give to the question is that there are legal principles out there which require the federal and provincial governments to negotiate but sometimes you have to go back to court to get them to do that. |
| [4,62] Kim Baird I guess the only thing that I would add is that since pre-confederation and colonial British Columbia the provincial policy was to not deny Aboriginal title to refuse to discuss these things and it wasn't until the inception of the treaty process in 1990 that they would come to the table so in practicality them participating in the negotiation brings land to the negotiation table and there's all kinds of reasons why their at the table some legal issues that Edward has, have raised. I think it's important to note that that's always been the provincial position here. |
| [4,63] Linc Kesler I think we have time for about maybe one more question or two. Over here. [audience member asks a question] |
| [4,64] The question is for Chief Baird and it's surrounding the issues of title and extinguishment as legal concepts within the treaty process and how her negotiations are working with those issues because they've been ones that have been longstanding ones in the earlier processes. |
| [4,65] Kim Baird Well I mean I guess the latest model is the modification model that's outlined in the Nisga'a Agreement where our Aboriginal rights would be modified into treaty rights which would have Constitutional protection. I guess the nervousness about that is what happens if we don't get things right and case law develops that would provide for new rights. Overall I think our community views that as a workable model. The complication that's added though is that the provincial government wants to have some our self-governance powers in a governance agreement. So, Tsawwassen doesn't want to modify some of its land and resource rights to provide government certainty over those things if we don't have certainty over all our jurisdictional sort of powers. So, currently there's different sort of model being contemplated where potentially there is a governance agreement some of those law making authorities could be transported or moved into a final agreement at a future time for whatever reason that would support that transfer occurring. This is a very very new proposal that's being presented to us. Ultimately, if we could have everything in the final agreement I think our community would accept the modification model that is provided for in the Nisga'a agreement. |
| [4,66] Edward Allen Yeah, thank you. It's interesting to hear this discussion because I think what it comes down to is to give certainty you have to get certainty. And the certainty that we sought when we negotiated the Nisga'a Final Agreement was that we were saying we are willing and confident enough in what we're doing to define all our Aboriginal rights and put them in the Nisga'a Final Agreement and provided we got recognition of the rights that we sought as a minimum which included the right of self-government in terms of it being Constitutionally protected we are comfortable with the model that's set out in the Nisga'a Final Agreement. And that model again defines our rights and it gives a modern expression of those rights or modifies those rights. But also those rights continue over time. The reason why the model works for us is because in terms of us being able and willing to say this is a full and final settlement there aren't any Aboriginal rights outside of this document that we're going to assert. We had to get enough rights in the document for us to feel comfortable and we've done that and so that's to add to that discussion. |
| [4,67] Linc Kesler I think that we've, you may have other questions that you would like to, if you're in the hall, would like to propose to our guests then maybe you can do that in a less formal way in a minute. If you are watching online or when you go home if you have questions that have come to you on the way home or at a later point we urge you to once again to look into our discussion forums where you can voice your concerns and maybe engage some others in a discussion. I'd like to remind you that next week we will not be having a session, it's reading week here at UBC and we won't be having a session until two weeks from tonight. Two weeks from tonight we will be looking into one of the topics which has come up at the end of tonight's discussion which is the issue of consultation with communities regarding developments and changes in affected lands. |
| [4,68] Our schedule for a couple of our sessions further down in our series has been affected a little bit by changes in the schedules by some of our presenters but in that session two weeks from tonight we know that Arthur Manuel will be with us speaking on Sun Peaks Resort development situation and there will be another speaker as well. So we hope you'll be back with us in two weeks. If you, we hope you will join us ongoing conversations online. If you are watching online we're very interested in what your experience has been. We have a little time to regroup our technical capabilities and further tune them so let us know how it's going by email or through the discussions and we'll see you in two weeks. And now I'd like you to join me thanking our speakers for their very thorough presentations and taking the time to be with us. |
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Session #5 - February 22, 2005 Guest Speakers: Arthur Manuel, David Porter |
| [5,1] Linc Kesler Good evening and welcome back to the second half of our Speaker Series. We had a week off last week but we're glad to see you back and the same to all the people who are joining us via the internet. In the second half of our series we have some really interesting speakers coming up. We'll be telling you about them, of course tonight you will see tonight's speakers but then we'll tell you a little bit about who is coming up later, later on. My name is Linc Kesler and I'm the Director of First Nations Studies here at UBC. I'd like to begin as we always do by acknowledging that we are guests on the traditional territory of the Musqueam people and we're very grateful for their hospitality and also for their interest in our program and this series. |
| [5,2] Tonight as we are entering as we enter the second half of the series we're looking at the issues of consultation. And what consultation has become a very important concept in the legal cases and also it frames a lot of the issues surrounding negotiations between governments and First Nations groups. But it's, it can mean different things and different situations and to help us out to understand this important concept better tonight we have a couple of really interesting speakers so tonight we have with us Arthur Manuel, you wonder why I'm laughing as an organizer I'm always glad when the speakers to see the speakers walk in so now I can really complete the introduction of our two speakers. Arthur Manuel has formerly been the Chief of the Neskonlith Band and also chair of the tribal council of the Shuswap Nation, now works for the Indigenous Network Commerce and Trade, Economics and Trade, sorry and is really doing some interesting initiatives in the international arena. He's also been someone who's been very much involved in the controversy surrounding the Sun Peaks development so maybe he will be mentioning some things about that tonight as well. Dave Porter has an incredibly varied career in government service in many kinds from broadcasting to economic development to oil and gas issues and human rights, many things of that sort and has also been is it the chair of the Kaska Dene Tribal Council, at one point, yes, okay and is now on the task group of the First Nations Summit in B.C. and we're really delighted to have both of these very knowledgeable speakers with us tonight. Somewhat by default Arthur has been elected to be our first speaker and so welcome Arthur Manuel. |
| [5,3] Arthur Manuel Thank you very much for your introduction and I too would like to thank the Musqueam people for giving us the right to be here to be in this territory. I spoke here at UBC a few weeks ago with Naomi Klein and also Delbert Guerin who is from the Musqueam community and nation and he welcomed us and it was really good to see him because he used to work with my father the late George Manuel and it was good to share the stage and speak about issues that are really a fundamental concern for us here as Indigenous people but probably even more of a concern for Canadians in general because in addition to speaking a few days ago with Naomi Klein who is an internationally known lady regarding globalization. I also had the opportunity to speak the other day to the Pulp and Paper Woodworkers of Canada about Aboriginal title and tomorrow I'm flying down to the Los Angeles area to speak to the Chapman School of Law with regard to some of the international work that I've been involved in over the course of the last four or five years. |
| [5,4] And I think it's important to point out that the kind of work that I'm doing is not really necessarily understood by people at the community level yet the work that I'm doing was generated through some other work through some other issues like Sun Peaks and like the Harbour Lake logging issue. My sort of strategy as a I guess a leader is to work with local people on issues but all the way up to the international level and I think it's important to think about these things that I talk about in the context of the political issue at the community level like the issue with regard to the submissions that the Indigenous Network and Economies and Trade made to the World Trade Organization and to NAFTA and the fact that those submissions were successfully accepted by those organizations had to do initially with the fact that when I was chief we went logging off-reserve without a permit from the province. And the province seized the trees that we logged and they said that they belong to the province. |
| [5,5] Now you can't seize anything if you don't own it exclusively and the Supreme Court of Canada said that in British Columbia because we don't have a treaty as the Secwepemc people or any of the other nations in British Columbia with the government with regard to surrender of our lands. We have Aboriginal title to those trees. You can't charge anybody with trespass or charge anybody, seize anything from anybody if you don't own those trees exclusively. So the province was lying, its political interpretation the provincial government's political interpretation of the case law like Delgamuukw is wrong. What their main position is to get Indian leaders to accept that wrong position and by us accepting it then we justify it and that's wrong. And that's sort of like the neo-liberal approach of trying to achieve control of the leadership of Indian people so that Indian people don't build their economics security based upon their rights as Indigenous people but we build it based upon the legislation that is passed by the province in terms of forestry or mineral development of whatever have you. |
| [5,6] That's what they want, they want to control the power to make decisions regarding the land that we own. And so the only way that we could challenge this was that we felt that we had to get involved in the Canada/United States softwood lumber dispute because the Canadian government has given up its sovereignty to the international trade tribunals like the World Trade Organization and they've given up their international sovereignty to the NAFTA Agreement, the North America trade agreement and Canadians really don't understand that that these big agreements that these neo-liberals are pushing in terms of corporate control is giving up this control of Canadians over trees because that's how come they were going to WTO and that's how come they were going to NAFTA. And they were talking about our trees; they weren't talking about their trees they were talking about our trees. |
| [5,7] And they went to the World Trade Organization because the United States imposed a twenty-seven percent counter bailing duty against their exports the United States because Canada exports about $10 billion worth of trees, two by fours, to the United States every year and the United States is imposing a twenty-seven percent counter bailing duty are taxed basically on these trees when they cross the border. There's over $4 billion down in the United States in a trust fund in Washington D.C. regarding those trees and what we did is we made a submission to the World Trade Organization, we actually made three submissions to the World Trade Organization and our basic argument for the World Trade Organization was that the Canadian government's position not to recognize Aboriginal title is a cash subsidy to the Canadian forest industry. That means by not recognizing the fact that we own those trees they can sell those trees in the United States at an artificially lower price because some of the owners aren't recognized as owning those trees and that becomes a cash subsidy and under international subsidy law that's correct because if you know anything about the World Trade Organization it's a nation state organization which means we Indigenous nations are a part of it. |
| [5,8] So we have to submit in an Amicus Curiae submission and one of the which is a friends of the court type of submission. The thing is that they do not like accepting Amicus Curiae submissions and there is a very determined voice to not allow this extra voice to be heard. But in our case, they accepted our submission and it caused quite a controversy and in fact they accepted three submissions and one with regard to the preliminary decision of the United States Department of Commerce, one with regard to the final decision and one from the (couldn't hear word?) body and each one of those panels have three experts and the experts in those cases agreed that we had something to add to the debate between Canada and the United States. And that adds to international credibility to Aboriginal title it moves it from purely a domestic issue that Geoff Plant has exclusive kinds of dealings with or that Paul Martin has some dealings with to an international level where in this case nine international trade experts agreed that we had something to contribute to that debate between Canada and the United States. |
| [5,9] Also, when the Canadian government went and made the submission to the North America Free Trade Agreement in Washington, we decided that we would also make the same submission but the way, when we made the submission to the United States to NAFTA we had to argue the same subsidy arguments but in terms of United States subsidy law the same argument was made that the Canadian government's position not to recognize Aboriginal title is a subsidy to the Canadian forest industry. One of the things was that the time that we submitted there was only two Canadians that were on the NAFTA panel and two Americans that were on the NAFTA panel so the Canadians got the submission before we could, before they could make a decision on it. So Canada hired a law firm in Washington, D.C. to challenge us that we had nothing more to contribute to the debate and their submission was rejected and our submission accepted. I think it's important to understand that this moves Aboriginal issues in that terms of five international trade people that are looking at this international trade argument as being a significant point. It's important that when you got that many people like 13 different people involved, actually 14 people involved, then it adds some credibility. |
| [5,10] The other thing that we did because of that was we said well you know the Canadian government is using our land and resources to raise money you know on the international trade area in terms of investment and in terms of all these different things yet they still do not agree that we own the land. They are still are prepared to sit there and negotiate and in that sense that's where consultation is really important because the only reason the government wants to consult with us on land and resources here in British Columbia is because we own the land yet they are politically not willing to say that, that we do own the land and let's sit down and consult and negotiate on these issues and that's wrong that's terrible. We are basically subsidizing the wealth of this country with the impoverishment of the poorest of our people. Here we are at the university and we're you know people are educated and people are going to make out fairly well. But that's not really true for the vast majority of our people back home like 85% of the people back home or their unemployment is really high and their whole future is pretty dismal you know and the suicides and the alcoholism and the crack and the crystal meth and all these things that are happening back home you know we still haven't found any answers from the time when my Dad was struggling with those issues to the time that we're struggling, that I'm struggling with those issues because the land issue is not being dealt with because subsidy is what is wrong. |
| [5,11] The subsidy of the Indigenous people are making to the wealth of Canada and you can be determined in things like the United Nations and Human Development Index where they state very clearly that Canada is up at number one. But when you take a look at the Human Development Index when the statistics are applied to us as Indigenous people we're down at level 47 and in fact I think on-reserve Indians are down by 78%. You can really see that there is a great disparity between what it means to be subsidized and what it means to be the person subsidizing the whole process. And that's what the NAFTA submissions are saying and that's what the World Trade Organizations are saying, they're saying this to Canada you know let us straighten out this house you know let's make the relationship between Indigenous people and settlers a mature relationship where we can be proud of and move forward. But recognition of our rights is the primary basis of for that. |
| [5,12] The other thing we did is we also went and I met with Standard & Poor's a couple of times last year in New York City and for some of you who don't know who Standard & Poor's is it probably means that you don't have a hell of a lot of money because Standard & Poor's is one of the indexes where you can get investment and actually is a credit rating groove that monitors all of the countries of the world including Canada, United States, China, you know it doesn't matter where you are it monitors them and it provides information independent information for investors people who want to invest you know hundreds of millions or billions of dollars in countries. They want to really know what that country is made of in terms of its financial liabilities and when we wanted to meet with them they didn't want to me originally and Nicole Shawbus (sp?) was here with me debated with them on the telephone and because one of the things was that they said even if Canada lost all of its softwood lumber decisions it wouldn't have an impact on Canada's credit rating but the argument was made but there are a lot more substantive claims made by Indigenous people than just the softwood and they said. |
| [5,13] So she finally got them around to saying well at least we'll hear them out. And so by the time in New York City to meet with them down Wall Street, they're just off Wall Street and Water Street, but went down to meet with them they had by that time read the submissions that we had made to the World Trade Organization and NAFTA because they wanted to see what the substance of our debate was because we said that we've had all these international trade experts agree that there is some liability there. And so by the time I got there they were pretty open to the fact that Indigenous people do have something to contribute to the mix of the Canadian credit rating because Canada uses our land, our land to go borrow money in New York City. You know, Gordon Campbell uses our land to go borrow money in New York City. Our land. And then when we ask him for it he treats us like a bunch of bums you know and he tries to make us belittle us as people and demand their terms and conditions on how we can spend and use those resources and that's totally wrong. And that's what we're saying, the economics argument that Indigenous people need to make, can't just be here in the province of British Columbia or here in Canada but has to be at the international level because we need to go where everybody else goes when you're talking about your land and your resources you have to go to Washington, D.C. you have to go to New York City and you have to go to Geneva because every other nation that's where they go. |
| [5,14] Over the course of the last two years I spent a lot of time on this issue in negotiating and talking about issues in the United States more than in Canada. In fact, I remember quite a few years ago they thought I was one lost Indian winding up on Washington, D.C. to talk about these issues. But now they're used to me heading down that end of the world in order to talk about these things but that's the direction that we have to go as Indigenous people because if we don't we're going to limit, limit the future of our grandchildren you know because the thing is that the whole issue of Indigenous involvement I think is critical for the future not only this province but I think also around the world. That brings me back to Sun Peaks because Sun Peaks issue is to stop the expansion of Sun Peaks from a four to six thousand bed unit operation to a twenty-four thousand bed unit operation. |
| [5,15] A lot of very beautiful people, my people, Janice Billy, Irene Billy, my own family, my daughters, Mandy and all of these people have been struggling to stop the expansion of Sun Peaks because of the impact mass tourism is going to have on the ecological biodiversity of people in that area meaning themselves in terms of using the land because when you bring in people to fill up this twenty-four thousand bed unit place you're going to have a tremendous impact on the hunting and the fishing, the trapping, and the livelihood of the people out there simply because their looking at it as an all season type resort where people are going to be out there. So we've been fighting that and we haven't been successful in stopping it because the government is just not willing to agree that we have a right to stop it, that expansion because they've already agreed to it. But we raised this issue all the way through the international level through the conventional and biological diversity and we brought that issue to the international level and talked about it in terms of prior informed consent. We were very instrumental in getting the Canadian government in the hague of (couldn't hear word?) to back down from wanting to water down the whole issue of prior informed consent. |
| [5,16] But it was people like Irene Billy and those people that said that we should be doing this. I guess the real reason that it is important to understand that we have a lot to contribute is things like the other day when I was listening to David Suzuki talk and he mapped out a real sort of terrible kind of picture of what the world is become of because of the whole corporate exploitation and lack of concern for the environment kind of issue. He was basically leaving a big question mark out in front of me in terms of everybody there like what do we do? The thing is that the answers are there you always hear that the answers are always there facing people sometimes it's a hell of a time for them to see it because they're too busy looking in the wrong direction. But one of the real things that is an answer to problems that the whole corporate industrial world is causing for us ecological destruction is recognition of Aboriginal title and that's something our parents and our grandparents, great grandparents fought for was the recognition of that Indigenous land rights. Because it's that Indigenous land rights that really is the bottom line that challenges big government and big companies from destroying the land. |
| [5,17] The other day I had a real good opportunity to sit in at the Haida case when it was being heard in front of the Supreme Court of Canada for the two days and the first day it was with the government and with Weyerhaeuser and they were talking about what those Red Cedar meant to them they meant jurisdiction they meant profits they meant logging and operations and they spelled that out pretty clearly. But the second day it was opened up with by Terri-Lynn Williams-Davidson and who is a Haida lady and a lawyer and she was representing her people she was the first one to talk. And she had a big picture of a Haida village and she pointed it out the significance of the Cedar these trees here and she was talking about she said "and more importantly what I'm trying to say is that the Red Cedar are the six to eight hundred year old sisters of the Haida people" and that was entirely opposite to what the Weyerhaeuser lawyer was saying Cedar meant to them. But they were the only people in Canada standing up and saying that and at a tremendous cost to them and a tremendous sense of commitment and resolve to protect the six hundred year old sister. |
| [5,18] They were answering the very questions that were out there and Indigenous people are the ones that are that do that whether it be Sun Peaks or whether it be out in the Grand Canyon where you have a tribe living inside the Grand Canyon and they protect the Grand Canyon or you talking about Indigenous people in Australia or Indonesia or Africa or in S·mi land. No matter where you talk about Indigenous people they're people who have a direct connection and link to the land. They don't have this multi-layered concept of ownership with regard to land and resources that the corporates have, the civilized people have, you know, the discoverers had, you know, the discovered people you know they really have a different sense and you need to counter balance that and that's what Dr. Suzuki is saying to the scientific community is realizing now. We really have this serious question about what's going to be available for my great great grandchildren you know if we keep on allowing globalization to be led by corporate presidents whose primary purpose is to amass power and money and consolidate the things that are kind of new-liberalism. We need to question that because Indigenous people are the ones who will question. |
| [5,19] We're the ones who have a real innate a very fact ground historical basis in terms of what traditional values, knowledge and activities mean in our traditional territories and we're the ones that have thousands of years of experience here in British Columbia so we have something more to contribute. We need to get rid of this notion that the B.C. government and the B.C. television network and all these other companies try to say that Indian land claims is a cash settlement deal. It isn't. Because if it becomes a cash settlement deal then traditional values, knowledge and activities will be lost in the process. I think what we're talking about when we're talking about recognition of Aboriginal title and Aboriginal rights what we're talking about is recognition within the framework of the Canadian Constitution that the jurisdiction of Indigenous people does include their land vis a vis Aboriginal title. |
| [5,20] That does put in question what does the province hold under 92? Or what does the federal government hold under 91? You know, and I think Canadians need to realize that if you are worried about water being exported into the United States right now the only people you have in control of it under the way the government has sort of defined the problem is federal government and big water companies. The only way that you're going to be able to stop and protect your water is to recognize the fact that Indigenous people have a right to that water. We're the ones that have challenged it whether it be fishing whether it be dam building whether be it be clear cutting all of these things it's always been the Indigenous people the traditional based people at the land level that have been challenging this and that's the big plus on why we need to get together and support Indigenous people and recognition has to be made. You know there is economic dimensions to this in the sense that we need to define in more clearer terms what that subsidy is. WE need to define more clearly what the economic essence of Aboriginal title is and Aboriginal rights are and we need to do it not in terms of what the province is prepared to hand over in terms of what they think they got under section 91 or 92 we need to build it based upon what we know we own under section 35 of the Constitution and that's where we need to grow from. |
| [5,21] I think that we do have a lot of support out there. I think there's a lot of people and the Canadian people that are really wondering how can we resolve this. The other day when I was talking to the Pulp and Paper Woodworkers their main concern was their home and they're saying our main issue is what happens to our home? I said well your home has always been built on Aboriginal title lands. This whole university is on Aboriginal title lands. It always has been. The real question is recognition of what decision of people like, I noticed that Delbert came and joined us, to that ownership. There's no question of ownership. Don't be worried about questions like do Indigenous people have a veto you darn rights we do have power over the land. If you own something part of it is to say no it is not going to be destroyed for this purpose and that's part of the ownership. Indigenous people right now are going through a tremendous period because we need to wake up. We need to wake up to what we own and our identity. |
| [5,22] We need to look at places like what happened to the Black movement when they were desegregating in the south. When Black became beautiful. I remember those days people would say wholly smokes Black is beautiful? We need to look at the French in terms of the silent revolution, Trudeau and Mitchell Sharp, in terms of educating our own people about what we own and what is ours. We're not going to learn that from the beaurocrats who give us money from the federal and provincial government. We're going to have to learn that on our own from our elders and from our own people that's where the growth has to happen and come from. The decision in what direction we go do we go and try and fit under 91 or do we want to fit under the 92 provincial powers or do we want to build under section 35 the power of our rights. It's a decision we all need to make. Every last one of us people have to make that Indigenous person about where we're going to go. I think we've got a lot of good hints out there. |
| [5,23] I remember when our submission was accepted the first submission from the World Trade Organization was accepted we were in Geneva, Switzerland and we were there for the purposes of trying to lobby but by the time we got to Geneva, Switzerland, I asked Nicole to go check with the lady from the WTO and she didn't want to go because the people at the WTO were really rude to us. But she did go to check and when she got there they were really pleased and really happy and everything and she was wondering what's going on and she said well the panel accepted your submission and the panel did that outside the secretariats so they accepted our submissions and we were all happy. So we had made some appointments with the United States trade representative in Geneva at their government commissioner and so we made it there we were kind of late for about a half an hour because we wound up going to the wrong place but anyways we wound up at their big building there and we go and they waited for us. |
| [5,24] But they were sitting there and there was a whole whack of them and a big, tall, thin lawyer sitting there and they were talking to us about our situation and I explained our situation and they'd always ask "what did the Canadian people pay you Indians for those trees?" They asked that three times during that meeting and we kept on saying no they haven't paid us one cent because what the Canadian government was arguing before the World Trade Organization was that they had passed on substantive property rights to the forest companies that they weren't charging subsidy anymore they were just merely charging rent or a tax on these companies. The one of the things was that the United States had to determine whether that proprietory interest had been passed and they did raise that in their submissions later on in that Canada is saying that they passed on this but it has been challenged by our organization that they didn't have the proprietory interest to pass it on. But it's important to realize that people up there in the bigger picture in the world are listening to what we have to say. Those things when we talk about economics it isn't just economics in terms of cash but it's economics in how do you use land and resources and how do you deal with Indigenous rights vis a vis externalities and all these other things. These are important questions that we're continuing to work on. I think I've ran out of time and I'd like to thank you very much. |
| [5,25] Linc Kesler Okay well I think we're back in action here and please join me in welcoming our second speaker Dave Porter. Dave Porter Thank you very much I'd like to begin by acknowledging that indeed we are on the traditional territory of the Musqueam people and we thank you for the honour to allow us to conduct business on your land. |
| [5,26] The formal characterization of the relationship between the Europeans and the Aboriginal peoples of the Americas, largely the United States and Canada at least, is one of treaty making. In Canada, the Canadian government is compelled from a Constitutional perspective that prior to the taking the lands of the Aboriginal people for settlement for the purposes of settlement that they must first enter into a treaty. That process took place historically all across Canada save and except parts of the North and in British Columbia. The last treaty under the Royal Proclamation 1870 order process was done in 1921 in Norman Wells in the Northwest Territories of course they found oil there and so they thought they better get a treaty before they started to take the oil. |
| [5,27] For the most part the treaty process had died there until the Nisga'a went before the courts and argued that they continued to have unextinguished Aboriginal title. The courts as many of you know split on the decision in 1973 and but that decision was very important because it sent a signal back to the government of the day, Trudeau, that he had some real issues to deal with in terms of the legal aspect of Aboriginal title. Prior to that Trudeau as you know made that famous speech we will be just in our time and forget about history. After the Nisga'a decision he changed his tune. Incidentally enough ChrÈtien was Minister of Indian Affairs at that time. Just the other day we got at the office of the Summit a document from 1973, a cabinet document from 1973, following the Nisga'a decision where it was clearly stated in the minutes of that cabinet meeting that Canada should recognize that there are Aboriginal rights and titles and interests. As you know, they didn't so much as do that rather they entered into a policy of a comprehensive claims process and that comprehensive claims process is still alive today. There's been iterations of that policy for years but it is still the primary policy vehicle that oversees the government of Canada's negotiations with Aboriginal people in British Columbia and elsewhere where there weren't treaties. |
| [5,28] The first of the modern comprehensive treaties was negotiated in Alaska and concluded in 1971. It's called the Alaska Native Claims Settlement Act. Aside from the big numbers at that time that were realized in terms of billions of dollars and 44 million acres the rest very much a large part of the settlement was very much apple pie in corporate America. What happened in that settlement is the U.S. was very successful in introducing to its Indigenous policy the idea of corporate America so they took all of the Indigenous peoples of Alaska and tried to group them around linguistic and national lines as it were and they established thirteen corporations, twelve in Alaska and one in Seattle. They divided up all the land in cash to those corporations and the one that was set up in Seattle was for those that had left Alaska and those Indigenous people from that state. And the other interesting part of it is they sent in motion attention between village corporations and regional corporations. The regional corporations held to this day hold all of the sub-surface lands to those 44 million acres and the village corporations have some of the surface lands where the villages are located and so it put in place a real tension that exists to this day. The sharing formula as well and what that caused is immense litigation. |
| [5,29] I remember back in the early 70's we went to Alaska and visited, it was about '76 and visited with some of the people up there and (couldn't hear word?) Corporation which was the corporation in Anchorage that told us they spent $4 million dollars on litigation with other Aboriginal corporations as to the meaning and intent of the sharing aspect of the agreement. No self-government was recognized in that process at all. All of the Indigenous rights, historical rights, the right to hunt, fish and trap were gone. The Native Alaskan people were treated like anybody else so you could be an Okie from Oklahoma and come up on the pipeline express and show up in downtown Alaska in the small community and in six months you get the same rights as the Indigenous peoples who have lived there for thousands of years in terms of being able to hunt and fish. Following the Alaska settlement the James Bay Cree of course in Canada, in northern Quebec, they wanted to build the first of the major dams, the Cree went to court and Judge (couldn't hear name?) gave them an injunction against the dam and that force negotiations with the Cree, the province of Quebec and the federal government. Again, very much the main parts of that settlement reflected the Alaska experience, corporations, land and cash but no real significant; outside of the Cree school board authority, self-government authorities were recognized. |
| [5,30] Then we had in the western arctic the Inuvialuit Settlement in 1984 and that settlement was a significant settlement from a land perspective the Inuvialuit were able to retain ownership to 36 thousand square miles about five thousand of that in sub-surface a significant fund and they broke the ground on the whole question of the relationship of the Inuvialuit to the wildlife population. They had achieved in their agreement exclusive rights to be able to take certain animals then preferential rights to all others. One of the things that have flowed from that settlement now is that there is still is a polar bear hunt but you can only do it with dogs you can't use snowmobiles as an example and they also retained the right to whale, recognized and so that's very much a part of the, I remember taking my daughter to Stanley Park years ago when she was about three years old and these little belugas were swimming around and she said Dad isn't that what Grandma and Grandpa eat? Some of the people in the audience overheard her and you could hear an audible gasp that people were doing this but these people still live on the land and that's what they do and they've done it for thousands of years. So, in that settlement those kinds of rights were recognized. |
| [5,31] Then that was followed up with the Nunavut Settlement in the eastern arctic with the Tungavik Federation and that settlement brought about Nunavut that's one of the deals of that negotiations that the government of Canada would set in place, Nunavut and while we know it as a separate and distinct territory. The interesting thing that a lot of people don't realize about Nunavut is that it's based on a public government concept so there are no real significant different rights that apply to the Inuit as you read the paper today they're fighting like crazy to try to have Inuktitut recognized as an official language. We've got the government of Canada spending like $3800 per person in the territory of Nunavut on bilingualism but not spending that kind of money on the language of the people that live there. So Nunavut was a significant result of the agreement in the eastern arctic and then you had the settlement of the Yukon claim. |
| [5,32] Again the Yukon claim built on the cash corporation land model of previous settlements but where the Yukon really broke ground was the self-government agreement. To date, with maybe the exception of Labrador Inuit Agreement which has been initialed, the Yukon agreement has set the standard in terms of modern comprehensive treaty negotiations on the question of giving the greatest degree of articulation of Aboriginal self-government rights and when you start to read those Yukon self-government agreements they start with the words the Yukon Indian people shall have the exclusive right to...and it takes it from there and so they can right now in the Yukon they can build their own wildlife act and they can have their own environmental or forest act, hire their own conservation officers, set up their own education act they can have the right to legislate gaming and toxicants on their lands so it's a real significant development the self-government agreements that pertain are connected to the Yukon agreement. |
| [5,33] The interesting part of that though is that the self-government agreement expressly is not a part of the Constitution as you know the Constitution reads that treaties or land claims and treaties are hereby recognized and affirmed and so the despite the fact that the liberal government that came in at that time under their Redbook policy had expressly recognized supposedly by way of policy that section 35 did in fact protect the inherent right of self-government when they were given the opportunity in the Yukon agreement they chose not to. So what that does is that it holds out the possibility that say if Darrel Stinson and ahh what's the other guy the jet skier and those holy rollers get into the House of Commons I mean they'd have the opportunity just by way of legislation to change that act that's the risk that that exists there. Then we had the Gwich'in agreement in the Mackenzie Delta and the most recent agreement the Sahtu agreement a very similar to the Inuvialuit agreement no self-government authority there. So what's happening now in the Mackenzie Delta and part of the Mackenzie Valley is that you've got self-government talks taking place after their settlements have been done with the territorial and federal governments. But the Tlicho changed that they've got self-government and they're just making their way through the senate now. |
| [5,34] In the context of British Columbia, by the way, I'm from the Kaska Dene and we're right at the end of the province we have our traditional territory comprises of 40 thousand square miles of the northern part of the province. Prince George is not northern B.C. that sucker is right smack dab in the middle of the province and you travel another 1000 miles from there to get to where we are. Our territory is in that part of B.C. and also spills over into the Yukon so that notional line in the bush cuts our people right in half. We're also part of the Na-Dene group and we're found right across North America from Alaska to New Mexico, the Navajo and the Apache are also of the same people and have the same language originally although there's been tremendous change and like the Navajo and Apache in terms of their language there's about 60 different groups historically and about today I think the number of the Athabascan speaking people as anthropologists refer to us as there's about 600,000 people across North America. |
| [5,35] The other interesting thing about the northern comprehensive claims settlement is that excluding Alaska and just looking at the Canadian context the Aboriginal people of the north have retained ownership to 255 thousand square miles of land and that's the size of Alberta and they used to say that it was all ice and snow but diamonds are being found now and it's going to change not only the economy of that area but it's going to change Canada's position as a country with respect to that particular commodity. In B.C.'s context we've had the Douglas treaties and then we had the treaty with respect to Treaty #8 which was a huge treaty it went from northern Manitoba, Saskatchewan, Alberta, B.C. and the Northwest Territories and as you know Treaty 8 guarantees the right to fish, hunt and trap and it also set in place a formula with respect to the land allotment of 120 acres per person and to be taken in severalty which means today you can continue to receive land under Treaty 8 as new dependents are brought into the process. |
| [5,36] In the British Columbia treaty process we've been absolutely frustrated because as you know the treaty process in B.C. started following the Task Force that was formed in '91 by of all people "the Zalm" (Bill Vanderzalm) you know who came off the boat from Europe and within just a couple of decades ended up not only guarding in the (couldn't hear word?) but hosing us to boot in terms of when he sold out to along with the Expo lands and became our Premier in one of the most beautiful provinces in the country. He did one good thing he did was to create that task force the task force recommended a whole series of 19 in total, 7 in B.C. treaty process. Out of that came the British Columbia Treaty Commission supposedly in theory the keeper of the process and thereto manage the treaty negotiation process. The B.C. Treaty, the process was also legislated provincially, federally and the process was then engaged. To this date we've spent like $230 million dollars and not one treaty in British Columbia under that process. The Nisga'a Agreement did come into being during that time but the Nisga'a Agreement was outside of the process. The Nisga'a from 1973 had been participating in the modern treaty process without success always their efforts were always frustrating by successive governments in British Columbia, including N.D.P. governments I mean Barrett had a chance to do something and he did nothing. |
| [5,37] Then we had Harcourt and all he left us with was 5% and that's really caused us problems in terms of negotiations today and Glen Clark didn't do any better. I mean the N.D.P. is an interesting creature here in this province I mean they speak from the left and they governed from the right and to the right sometimes of the Liberals. It's an amazing collection but when you find out who they are they all grew up just down the street here together they just took different parties and ended up in power at different times. Now with respect to British Columbia it's been extremely frustrating to negotiate. We're being treated at the negotiation process in British Columbia like second class Aboriginal people. What I've told you about in terms of the comprehensive claims process as it's evolved throughout northern Canada not even that is on the table in British Columbia. The kinds of agreements that have already been negotiated are not even available to the Aboriginal people in British Columbia. It's really difficult to understand and it's really hard to try to get the federal government negotiators to realize their responsibility because it is "they" the federal government who have the responsibility it's not British Columbia who has the responsibility to conclude these treaties. |
| [5,38] We look at the Treaty 8, I mean that done by the federal government and we are of the opinion that continues to be solely the Constitutional authority of Canada to complete the treaty process. In terms of our view, I mean clearly we see section 35 of our Constitution as a full box of rights that it is, that our rights to the lands and resources continue to exist. Our rights to our language continues to exist, our rights to our customary laws continue to exist, our intellectual property rights continue to exist. None of those rights have been extinguished by a treaty or by expression of law anywhere in this country and so that's how we come to the negotiating table. You've heard about these four AIP's that are out there proposed AIP's. They do not reflect at all the level of progress that has been achieved by the northern comprehensive claims process instead of recognizing that there should be distinct Aboriginal jurisdiction both all of those agreements that I have seen of the four unless they've been changed in the last few weeks expressly state that all laws in British Columbia and all laws in the province of B.C. and Canada shall apply on those lands. |
| [5,39] In addition to that, the extinguishment clauses are alive and well and they are probably some of the most draconian and comprehensive distinguishment language that we've seen in the treaty process. The old treaties do say cede release and surrender and these agreements they just take one word, release. When you think about it they're all the same. Three different words saying the same thing. So even all any compensation that they have any specific claims any right of way trespass issues that exist are to be given up in terms of those agreements. The land allotment is negligible we're talking in the north of hundreds of thousands of square miles we're talking about individual settlements fifteen to thirty square miles per nation. Here, in British Columbia they're talking about hectares of land in these treaties that are being negotiated at the present time. The government has negotiated a new concept called own source revenue into the negotiations and basically what that means is that if the Aboriginal community makes a buck under these proposed ideas they lose a buck. So you look at a lot of the communities that are marginally situated for economic perspective I mean what is the likelihood of there being not only wealth being generated but the ability for the First Nations to pay for its needs in terms of basic needs in terms of good water and clean air, streets, houses and schools, institutions to house the people and services and yet Danny Williams can take down a flag and get 100 percent. His province gets billions contrary to the whole concept of the equalization formula that's governing the relationship between the province and the federal government in this country. |
| [5,40] So, the situation in British Columbia for there to be realistic treatment of treaties there has to be a wholesale change not only in policies of both the provincial and federal government but also the mandates that are issued by those governments for the conduct of the negotiations. We at the Summit have worked with the chief negotiators across the province and we have compiled a very clear statement as to what we see as the outstanding mandate issues and delivered that at a principle's meeting in Montreal prior to Christmas to both governments and said look if you want treaties here are the issue that you've got to address and we also as a result of the recent court decisions, the Haida Taku decisions, we've met with the province and said look if you don't want this province tied up in further litigation then you've got to sit down with us the Indigenous people of B.C. and you've got to work out an arrangement as to what is meant by consultation and accommodation. It's not, it doesn't mean flying over a reserve with a government jet and waving the wings as you pass over it means sitting down at a negotiating table and negotiating directly with us. |
| [5,41] In that process we envision that there has to be question of land management has to be addressed, our role in the decision making of land and resources, resource revenues got to be on the table right now, right now B.C. is still 60% plus from an economic perspective dependent on the resource economy and primarily you know that comes from the northern part of the province. This year we should I think about over $3 billion is going to come down here so we can build roads from the sea to sky and help pay for those fast little trains to get around town and that's all coming out of the oil and gas revenue from northern British Columbia. A lot of the mineral wealth comes from northern B.C. a lot of the timber wealth comes from northern B.C. and there's not an awful lot going back into those communities in that part of the province or anywhere else for that matter with respect to the Indigenous community. So for there to be a successful relationship for there to be adequate consultation and accommodation resource revenue has to be on the table. We're not, we can't wait for treaties. I mean the treaty process is taking too long and development is proceeding and now it's proceeding with a disregard to the rights of our people in this province so the one way, I mean we talk about recognition and reconciliation one way that's to be done is to have a real fair exchange in terms of the negotiation process between now and final treaty. |
| [5,42] And if these things work on an interim level prior to treaty then one would assume that treaty would then subsume those agreements and make it a part of an ongoing relationship between the Aboriginal people and the public governments. So we're a long ways from the, I think, realistic treaties here there needs to be tremendous shift that message has been given to the province and an election is coming up and so things are going to probably heat up around this issue unless the province sits down and says to us hey we're serious that we in fact are prepared to recognize what the courts have been saying and we've won a lot of cases. I mean every case that's come up recently just about every one of them we've won those cases and so I think that the proper thing for the province to do is to say yes we do in fact recognize these rights exist and we will negotiate on that basis. So that's what we're looking forward to and we're ready for any questions you may have relevant to our discussion here thank you. (applause) |
| [5,43] (audience member asks question) Linc Kesler The Blackfoot brother at the back of the hall is giving me a substantial challenge to paraphrase that but I think the heart of the question had to do with the issue of sovereignty and the way sovereignty is involved in treaty negotiations because treaty presumes that both parties are sovereign entities and that the band council system under the Indian Act has really has in your opinion if I'm getting it right correctly the government of Canada in a certain sense negotiating with its own creations and therefore sort of with itself. Okay, okay I didn't want to, you know, make it more extreme than you phrased it but okay and that's the question and that's been posed to our speakers. So they're brave men and they'll try to answer it. |
| [5,44] Arthur Manuel Okay I guess the fundamental question is how do the people choose to exercise their sovereign rights as Indigenous nations. I think it's, we are sovereign people there's no question about it and I guess in the Haida decision that's the first time I've seen that. Chief Justice McLaughlin used the word sovereign vis a vis Indigenous issues and I think that's a bit of an awakening on the part of the Canadian legal system in that sense because so often the Crown views sovereignty as being the Crown itself. You know the government looks at the Crown as being a sovereign issue but the thing is that there is no question that we as Indigenous people in terms of our rights you know they pre-date the declaration of sovereignty that Canada made here in 1846 and how we choose that is very important and I know in the case of the Gitksan Wet'suwet'en when they were bringing forward the Delgamuukw case you know they talked about and it's still an issue to a certain extent with regard to chiefs in council and the traditional land users. |
| [5,45] And those are issues that are alive in every community there's no and ifs or buts about it because in our case for instance the people who used the land are normally people who are economically not in the job market system you know they're not employed which a large part of our people so they depend on hunting and fishing and these other things. When you go visit them you eat lots of salmon, you eat a lot of moose meat, you eat all the traditional foods that they are directly linked to and then people who work at the band office they get a lot of their food from Safeway and Supervalu because they have to work at the band office between 9-5 seven days a week. They do some fishing but not necessarily at the same level as the people who get the $186 in welfare that's handed out by the band office you know. |
| [5,46] So there is that distinction and my feeling is and my sense is that Indigenous people should look at putting into this country the best that we got and the best that we got is our traditional values, knowledge and activities because when we sit at the table across government, Canadian government and Canadian industry the best thing that we can add to the whole dialogue is the our traditional values, knowledge and activity because that will bring something new to the table. You know that's what Dr. Suzuki is talking about is missing from the table right now because right now the only people at the table are industry and government and you know what direction they're going. You know they're going towards making the World Trade Organization beaurocracy make decisions with regard to forestry in this country and yet not know nothing about this country at all because they're not even from this country you know that's what globalization under corporate rule is all about. |
| [5,47] The same thing goes with all the other international trade agreements and the only people that have been questioning that are the Indigenous people and so we can bring that to the table and I think Canadians should be proud that there are Indigenous people that still depend and still have that direct link to the land. If every Indian had to move to Vancouver from British Columbia then we would have one hell of a bad province to live in and we would have one bad place in the world you know it's Indigenous people that would do that you know I believe in our sovereignty I believe in our traditions and I believe that those things are linked to a history and a past and we have, one good thing about this country though, one of the best things is that the legal decisions that have been made pretty well up to now have been recognizing that title and that right. You know and the Constitution does provide the framework for us to be able to be a real model in the world in terms of how you can make a mature country where Indigenous people and settlers get along and they can actually do something that's going to improve the quality not only in British Columbia but set up a model for the rest of the world. So, that's what I would say about it. |
| [5,48] Dave Porter Yeah that was really interesting in the Supreme Court recent Supreme Court decisions the court talked about the Canadian sovereignty as assumed sovereignty and yes, there's no question from I think a legal perspective that there in my view there has to be a degrees of sovereignty with our experience. I don't think you could look at something like sovereignty as an absolute. The Canadian government has assumed its sovereignty over what we know as Canada. The province have a sphere of jurisdiction and so do we and until we reconcile that relationship there it's a clouded area from a legal perspective and then from a perspective of working at the community level in a practical sense. From the Kaska perspective we conduct negotiations on the basis of the Kaska nation and if a treaty is signed that's who the treaty will be between the Kaska and the federal government. |
| [5,49] (audience member asks question) Linc Kesler The question centres around economic development and interestingly enough it's a two-for. The first part is asking about self-government and whether self-governance is got the potential to address social problems and other problems more effectively than other forms of government and the second part had to do with economic development and now that I've gotten to it I'm not sure can't remember what it is. What was the second part? Again, the question was directed to Arthur Manuel and that was dealing with the skepticism regarding economic development that the questioner saw in Arthur's remarks and wondering about the role of economic development as it addressing the social problems, yeah, okay. Arthur Manuel I guess in terms of the first question I think Indigenous people do use the land and resources. I know in our situation we've done research about traditional land use activities of our people and from a financial point of view you might consider them to be poor but also from the land use point of view they're actually fairly wealthy in the sense that they have large areas in our area where they do hunt, fish and carry on traditional activities. |
| [5,50] Normally what happens is industry like say let's say for instance Sun Peaks. Well they'll say well we can provide employment for your people and let us build this massive 24,000 bed units ski resort and you people will get jobs. But our people won't get jobs because jobs in those kinds of industries are primarily for students at the University of Cariboo College and other people like that that work there because they like skiing and stuff like that during the work period and they work for that kind of low wages too because it's minimum wage stuff and even today up there there's very few of any Indigenous people sort of off and on up there so the thing is though that the Sun Peaks destroy the traditional activities of our people but not replace them when they go into this sort of mass tourism that's owned by Nippon Cable from Japan and that company will not alleviate any of the problems it's caused for the people same with mining operations and forestry operations. Basically what needs to happen and is that there has to be reconciliation between how we as traditional people and Indigenous people use the land with the provincial government's land resource management planning process. |
| [5,51] See right now the planning processes of government only take in consideration the so called stakeholders i.e. logging companies, tourist operations, mining companies. But they don't take into consideration the fact that Indigenous people own the land secondly the traditional Indigenous people use the land for other activities that if you're going to wind up like in the Supreme Court in Delgamuukw says infringe upon it then Indigenous rights has some modern day economic component to it. So there has to be some kind of rationale and change in the policy of this government and governments and with Indigenous people where you reconcile the maps you know of traditional land use activity with Interfor's logging activities, the cattle grazing, woodworkers or whatever it happened to be it has to be reconciliated with that. |
| [5,52] And there's where the economic debate becomes a real question because you need to decide well if I'm going to take this food away from this Indigenous family what am I going to replace it with? Are you going to just sort of open us up to the employment market because we have more interest in that land than just some ordinary Canadian because we have Aboriginal title to the land. So we need to have some form of decision making authority on a government to government basis not just as individuals. So those are larger scale questions that aren't answered under the present system so my skepticism with regard to commercial industrialization is providing answers at this point in time is not because they may not play a role in the future but the role that they've been playing up to now has been one of paternalism where they're the ones that know what economically should be and should not be done and they're wrong and they've been terribly wrong because I know in our area for instance Interfor is a major person that has destroyed as well as previous companies destroyed the fishing of because they over harvested the trees and then it has destroyed the spawning beds. If they would have talked to our elders that would not have happened because all the old people in our area the ones that have passed on and that used to talk about the Thompson River area or the Shuswap River area as being full of salmon that you could literally walk across the river on and you can't do that now. So those guys can't say that their economic decisions don't have direct impact on the economy that Indigenous people being barred from that is a real question. |
| [5,53] The other thing that I question corporations on especially international or transnational corporations on is that they don't hold a solution in fact they're the biggest problem that we have because the economy should be more locally based and oriented you know like when Wal-Mart moves in they destroy the ability of not Indigenous people because Indigenous people don't run these businesses but they destroy the policy of local white people from being able to compete in the marketplace and they're destroying the local economy like Kamloops and other places. Big global corporations aren't a solution you know you need to have local control the local control has to be for everything from Indigenous people with regard to oil and gas it has to be with regard to water and forestry and all these different issues. Indigenous people need to be involved in. I think there is a place for corporation but they have to be small you know they have to be more locally oriented they have to involve local non-Indigenous and Indigenous people. I think that the Indigenous government will bring that added dimension into the question and we do have not only a role we have a responsibility to build that under section 35. I don't believe in any of this garbage put out by the present Liberal government that own source revenue legislation I don't believe in the First Nations Governance Act I don't believe that the governments have jurisdiction period to deal with our government. Our government flows through section 35 it emanates from prior to 1846 and we need to build on that basis and not on anything that comes from the federal government. Everything that the federal government is trying to circumvent undermine and destroy our sovereignty as Indigenous people there's no ands if and buts about that. |
| [5,54] Dave Porter Just a response a brief response to the question obviously if the jurisdiction of the First Nation is recognized and the First Nation exercised their jurisdiction and the right self-government just take a look at it from the Yukon perspective 16,000 square miles of land, 10,000 in sub-surface so the resources that would, the land use decisions would be the First Nations. The resources that would be extracted would be done under the jurisdiction of the First Nation and the laws and regulations and policies of that First Nations so you would be able to look at increased capacity, you'd be able to look at imposing training requirements hiring requirements and of course the revenue if it's a situation where the sub-surface interest is held then the revenues would flow directly to that First Nation thereby giving that First Nation the ability to resource its needs. In the oil and gas sector I set up the oil and gas commission in Fort St. John and some of the revenues in the extent of these developments are huge. There was one well (couldn't hear word?) which occurred in the lands of the Acho Dene and those areas in the Northwest Territories and British Columbia and portion of the Yukon. In that well it was producing it had a hundred thousand cubic metres a day and then you look at the prices of gas now it's $7 per cubic metre. You can see the kind of wealth that is being generated off the lands of First Nations and if there was self-government in place and those same lands were being held then that could change dramatically the economic position of Aboriginal people in this province. |
| [5,55] Linc Kesler The question was referring to a proposal made about 20 years ago that payments proportional to the gross national product of Canada be made in recognition of the land holding of Aboriginal people and that proposal is kind of a precedent to some of the ideas that Arthur has been advancing tonight so I guess the question is for him to comment on first. |
| [5,56] Arthur Manuel Yeah, I'd just like to say a lot of the stuff I'm doing I heard from meetings I don't know specifically the people who made them but I do know Lavina Lightbown and I do know that the comments have been made by very important leaders across the country that this country has been ignoring our land rights and that there should be some revenue sharing at that level. I guess what I'm just adding to that feeling and sentiment that's there is that we sort of brought it to a different level where we're talking specifically about international issue regarding $10 billion worth of softwood lumber in this country being exported to the United States and we're talking specifically about the our subsidization. One of the things that happened after our submission was accepted was that one of the NAFTA groups invited me to Mexico City to talk about our submission in fact I was invited to Mexico and I was also invited to Washington, D.C. to talk about this after it happened. But when I was in Mexico there was a lady from the World Trade Organization secretariat who said that when, she said that we know that their Indigenous people have social cultural problems in countries and they live...one of the things that we were totally surprised was that you Indigenous people had property rights and she said what are you Indigenous people doing with regard to defining what that subsidy is? |
| [5,57] We actually had an answer to that question. Nicole organized a meeting here in Vancouver that took place I think in April of that year and we did invite up a guy Ronald Trosper who's actually now a professor here at the University of British Columbia but at that time he was a professor at the University of Arizona and that was the question that we were asking is what is that subsidy. You're talking about measuring it vis a vis gross national product but actually when we're talking about it in the context of the Canada softwood lumber dispute we still need to define that that's one of the questions that weren't answered when these organizations accepted this debate that there was a form of subsidy there they didn't evaluate it and to our purposes that's good. We should define what that subsidy is ourselves in terms of how much of those trees actually belong to us and one of the places that we're looking at going is to challenge the taking back of the $4 billion that the is being held in Washington, D.C. by taking legal action against that. That would be part of the subsidy it wouldn't necessarily be exhaustive or exclusive subsidy but it would be part of it. But definitely you know we are subsidizing the Canadian system there's no question about it. Our poverty is the consequence of that. |
| [5,58] Basically what we need to do is to bring some equilibrium between Canada being at level one and we being at level 47. Those are the genuine hard measurements that we need to use in order to do that I think that's where economics plays a real role. The other thing I'd like to say is that we met with Joseph Stiglitz to talk about these economic analysis. I don't know if you know who he is he's a Bill Clinton's economic advisor head of the chairman of the White House economic counsel. We met with him to talk about what do the economic questions raised by the subsidy mean? We'e working on it the last time we met with then was a few months ago and we were talking about the maximum sustainable yield analysis (couldn't hear word?) study to try and figure out where Indigenous people fall into this subsidy debate but definitely the question that Lavina Lightbown raises is very significant and you know it'll take years and millions of dollars to just analyze and what does that really mean. But those are the big macro economic questions I think that Indigenous people need to be involved. I'm a micro businessman I run a small little store and that kind of stuff so I appreciate what small business can do but the big question is this is our land is a macro economic question and we need to define it. |
| [5,59] Linc Kesler Question in the back and we have another one here in the front. The question refers to Gordon Campbell's trip to the United States before forming the current government in which he asked I guess investors there what the government of B.C. can do for the investors and the question was do we know what he answered and how it relates to tonight's presentation. Arthur Manuel I'd just like to say that one of things is that I think he has been a little bit misinforming the American investors in we need to think about our own role in that though too because one of the things is that the way that British Columbia communicates with their investors one of their primary documents is their audited statement at the end of each fiscal years. And those people that are in Indian bands and Indian band politics know what an audited statement is and what the forensic audit is all about and all this kind of stuff you know. But the thing is that B.C. does the same thing. But one of the things that they are very weak on recording is their fiscal reliability, their financial liability their economic liability to Indigenous people in this province and they do answer it once in a while I know one sees one auditor report they said in it that they had most of the Indian people negotiating in the negotiations there hasn't been any agreement but they're lending the money to do so. |
| [5,60] Delgamuukw has sort of come up and made a few problems for us. One is in relationship to challenging a timber license which is was the Haida they don't say Haida in it but they just say of the challenge, the other one is with regard to some Indian people who went logging basically without a permit and that was basically us you know. But see the people who review these statements are Standard & Poor's, the economists, the big magazines and that's what they base their credit rating on. So this is where I'm saying we're actually by participating sometime in these discussions we're providing them with the information that everything's okay that we got the Indians well managed and if you're not getting anything out of those discussions like 10 or 20 years of no agreements then definitely there's serious problems there. The thing is that they're getting goodies every year from New York and Toronto and you're getting absolutely nothing you know. We need to be a little bit more smarter economically in what those things mean but basically what British Columbia should do is report honestly about these issues and if they won't report honestly then we need to go ourselves that's why I go and visit Standard & Poor's both in New York and in Toronto is because that's the place where you need to talk because every major company goes there every major government goes there we're the only land owners who leave it up to Gordon Campbell to go for us and that's a little bit remiss on our part. |
| [5,61] Dave Porter Clearly one of the soft spots is of course with the particularly the provincial government is the stabilization of the economy. Certainly is what they want and to that regard the treaties when they're done from their perspective will give certainty as they express their views in terms of the legal language that they seek. In today's context, that's what they're hoping to maintain is that aura and climate of certainty as you've evidenced over the last six months they've been doing a really good job of spending your money telling the world that B.C. is the best place in the world to live and creating the most jobs and doing all these wonderful things that they used to accuse the N.D.P. of doing which they said they would never do I mean but that's government for you and how they react. And Art is right, I mean if we really wanted to create some leverage in the province one of the available avenues to us is to engage in a campaign to create uncertainty and you do that in many ways we've got the dragon of the east now breathing fire and consuming everything we can throw at it and China I mean it could be a decision to go and meet with the Chinese government at a very high level and talk to them about a relationship. |
| [5,62] As owners of the land and resources that's totally legitimate that would cause a shiver throughout this country you notice how they're treating China on the proposed take over of Noranda (sp?) Mines and it's really interesting to see the boys from West Vancouver standing up in the House of Commons and giving the government of Canada hell about the human rights, how can allow for China to buy our good Canadian company when they've got this terrible human rights record? So, I don't know about you but that kind of stuff gives me a chuckle the ability to contort one's principles at the convenient moment and as well as Art mentions Howe Street and to a lesser to the least of the extent would be shaking things up on Howe Street and going down to Bay Street in Toronto because for the junior mining companies that operate in British Columbia that's where all their money comes from is primarily Bay Street in Toronto and Wall Street in New York. |
| [5,63] A number of years ago when they were talking about the Alaska pipe line that was one of the tactics we employed is that we went down because there were 300 banks involved in the financing of that project and we went down to Chase Manhattan and Morgan Guarantee Trusts and some of the major banks that were managing the financing of that pipeline and told them you go to build and you don't settle we're going to litigate. So that had a real effect in terms of the and we felt that immediately back from Ottawa so that's one way to achieve leverage the other is if there is a significant economic interest like a pipeline. Interestingly enough the Alaska Highway's back on the radar screen that pipeline is and James Bay approved that when they had the interest of the huge mega project from the James Bay hydro and when that was put at risk when they settled. When you look at the Inuvialuit agreement they'll ask us the same thing they'll ask if the settlement came about because of Stewart Udall (sp?) who was secretary of the interior then granted a freeze put a freeze on the proposal of the Alaska pipeline because of the outstanding Aboriginal rights question and forced a conclusion of the negotiating process there. So those are that are avenues that are available. Those are avenues that I know have constantly been discussed and I think that some of those tactics and strategies may very well emerge in this campaign if there's no movement. |
| [5,64] Linc Kesler I know there was at least one other question from the hall we also have two that have come to us over the internet and the hour is getting late. So, would you mind if I read these two questions and allowed you to answer briefly either of them as you see fit. I really want to demonstrate to our online viewers that we are tracking their questions and that we do want them to have the opportunity to make them so here are the two questions. The first is: Would First Nation stewardship be any less exploited than what settler's stewardship has given us? I think fishing companies on the Fraser River or interior tribes 99 year leases have the industry. I think this question is directed to Arthur. He suggested that First Nations are going to take this land and use it in a better way but I'm not sure that this is true. So that's the first question to respond to and the second one: I do not believe in treaty process that we are in as a sovereign people we do not have to prove our traditional territories belong to the Indigenous people. As an Indigenous woman who has watched treaty process I am alarmed at the fact that today $230 million has been spent on the treaty process how are we to pay I'm concerned that we will leave a huge debt for our grandchildren. How many generations will it take us to pay back what our leaders have brought us? So, if either of you would like to comment on either of those questions maybe that will be our last responses for the night. |
| [5,645] Dave Porter Now with respect to the first question is on fish. Art knows more about fish than he's forgotten more about fish than I'll ever know. But in terms of the, it's almost a situation from my perspective that whenever there's a problem with fish it's always the Aboriginal people that are blamed immediately. Steven Hume (sp?) wrote an incredible article about yet again this year there was supposedly a whole number of fish that went missing and he demonstrated factually in his article that it was almost impossible for the Aboriginal people along the Fraser to be taking this fish because they would have to run a trucking operation like 24 hours a day moving this amount of fish out and so I think a lot of those kinds of comments and charges basically are racially motivated. Another example, I remember sitting on a panel when Bill Wilson was speaking he suggested that all those 500,000 fish that supposedly went missing were consumed by one (couldn't hear words?) from the fishers survival coalition. The question with regard to the treaty process there is a need we cannot sit back and ignore these questions we can't sit back and watch our lands and resources being exploited every day and decisions being made outside of our communities that is fundamentally wrong. |
| [5,66] The courts are never going to solve that you're not going to be able to go to court and say let's achieve a settlement here. The courts will rule on the questions of law. At the end of the day you have to be at a table. You have to have a relationship if we're going to co-exist we've got to determine how we're going to do that. We've got to negotiate a social contract between ourselves and define our place in this country in this province and in this world. It has to be built on the foundation and recognition of our rights. The question of the payment of those debts I mean it's absolutely I think despicable that the Canadian government would take that point of view to say that they would charge our people a debt for them to be able to fulfill their Constitutional legal obligations. Why should Aboriginal people of this country pay the federal government to do its duty? So it's an absurd notion. So I doubt, in many cases when these treaties are in fact negotiated always the debt question finds itself by way of an amendment to the agreement or an aspect of the agreement and that's been the experience time and time again. But the that debt question will at some point will be challenged in law. |
| [5,67] I know we have a case and one of the remedies that we seek from that legal challenge that we've constructed is the repudiation of that debt. I expect at some point that a First Nation will go before the courts and specifically get a legal interpretation and I expect that we would win. An interesting piece of information for you to consider if you're really interested in this question is professor Kent MacNeil (sp?) view of the Haida legal case, I was at a conference with him a few weeks ago after the decision and his decision with respect to the Haida situation is that his advice to the province and he writes this in his opinion is that the province had better get to the table with the Haida quickly and pursue negotiations because if the Haida continue on in their land title case in his view they will win. When the Haida win then he says the province of British Columbia will be a situation of trespass. So and then Mr. MacNeil (sp?) is highly regarded in the legal community and very specifically seen as an expert on questions of Constitutional law and Aboriginal rights questions. |
| [5,68] Arthur Manuel Yes, I'd like to just respond to the first part of the question with regard to Indigenous control with regard to land and resources. I think one of the things that I didn't mention in my talk was that what we need to do is to find some measure of balance between traditional values you know knowledge and activities as well as commercial and industrial values, knowledge and activities. What we need to do is find a more sustainable way of dealing with land resource management planning and the real body that's been missing has been our elders and we know that. The legislation right now in the forest act puts it in the hands of the RPF and the district managers of the forest department. Our people aren't being allowed at all to call non-forest timber products and they got all these things labeled off into their sort of academic formats but none of it involves any of our people in any decision making process and to a certain extent that's what Haida was saying too. When they're talking about what level do Indigenous people get involved in terms of maintaining and sustaining the six to four to six hundred year old cedars is basically that they have to be involved at this more macro level of economic decisions and so I think that's what we're talking about is putting Indigenous people in a position they should have always been in and sitting down and talking about and making real fundamental decisions in regard to land and resource development in our area. I think it will be a better place if that happens in this province and in this world. So I stand very strongly on that. |
| [5,69] I think in terms of the British Columbia Treaty Commission the $210 million loans that were handed out I think those loans to a certain extent were handed out by the federal and provincial government by I think some sort of dishonourable way to a certain extent because in the process they don't recognize Aboriginal title especially after September 11th, 1997 when they should have. I remember when my Dad was alive he would talk to Jean ChrÈtien and that was when Jean ChrÈtien would have been the Minister of Indian Affairs and he said you know George if you guys could get the courts to recognize Aboriginal title then we'd go along with that. But the courts did on December 11, 1997 and they didn't go along and recognize it. Because the Supreme Court has a very important role to play in determining the legal direction in this country and in Delgamuukw they made that decision in terms of judicial recognition of our rights to the land. The Prime Minister and the premier of this province wouldn't go along with it. |
| [5,70] It's like the situation in the United States in the 1830's when the Cherokee were living in the state of Georgia and the settlers wanted to take their land and so they fought with them all the way to the Supreme Court of the United States and they won before Chief Justice John Marshall. But the president back then was Andrew Jackson and he said so John Marshall made his decision let us see him enforce it and he marched the Cherokee out of Georgia to Oklahoma in what became known as the trail of tears because thousands of Cherokee people died a very treacherous and terrible trip. That's the struggle that went on back then between the executive branching and the judicial branch and that's the struggle that's going on here now. Chief Justice Lemar recognized Aboriginal title of the Musqueam people to this land here but what is Gordon Campbell saying? No it doesn't exist. What is the Prime Minister saying? No it doesn't exist. Canadians need to decide whether or not they want to go into the 21st century behind Andrew Jackson or behind Justice Lemar and Justice Marshall. That's a fundamental decision and when I was talking about the fundamental decisions that we need to make as Indigenous people Canadians need to make the same fundamental decision because right now you guys are right behind Andrew Jackson. |
| [5,71] Linc Kesler Before joining me in thanking our speakers tonight let me just remind you that next week we'll be back with Patricia Monture and Herb George will be talking about rights, sovereignty and governance. Two weeks from tonight Guujaaw and David Walkem will be back to talk about consultation, Part II and resource use and three weeks tonight our final series will conclude with Wendy John and others. Please come back again next week and join us again and help me thank our speakers for such great presentations. |
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Session #6 - March 1, 2005 Guest Speakers: Patricia Monture, Herb George |
| [6,1] Linc Kesler Welcome back to the First Nations House of Learning here at the University of British Columbia. We have a nice crowd here tonight for the 6th Session in our Internet Speakers Series on Governance and Land Claims issues. We welcome also people who are joining us via the internet. My name is Linc Kesler I'm the Director of First Nations Studies here at UBC. And I want to begin this session as we have begun every session by acknowledging that we are guests on the traditional territory of the Musqueam people and we very much value their hospitality in welcoming us to their territory for these sessions. Tonight in our 6th Session we're joined by two speakers who will help us shift back a little bit from the immediate concerns of looking at specific events in B.C. to consider some broader frameworks in which the kind of issues that we've been talking about for the last five sessions can be reframed and thought through again. |
| [6,2] And those are the perspectives of Indigenous rights, sovereignty and governance. And joining us tonight is Professor Patricia Monture who's coming to us from the University of Saskatchewan. She's a law professor or has been a law professor and is now is Professor of Native Studies and Sociology at the University. She's been the author of two books that have crossed some disciplinary boundaries in interesting ways. She's now involved with our second speaker in a new project which is Governance Institutes and I'm sure they'll be telling you a little bit more about that. She'll be joined tonight by our second speaker Satsan, also known as Herb George, who's coming to us from the Wet'suwet'en. Herb has been involved in the issues that we have been addressing throughout this entire series for most of his life. And had long and deep involvement in the events leading up to the Delgamuukw decision and is now again turning his focus to issues of governance in the First Nations Governance Institute. So I think we've got, we're very fortunate to have these two speakers joining us tonight to think through these issues and without further delay I'd like to introduce the winner of tonight's coin toss, Patricia Monture, who will be our first speaker. (Applause) |
| [6,3] Patricia Monture I want to acknowledge first of all the people of this territory and their ancestors because without their knowledge, their commitment to their ways we wouldn't be able to be here tonight sharing this time and space with each other. My life's a little bit interesting sometimes and I know this whole series has been on land. But I'm not actually going to talk about land. I'm going to talk about sovereignty. But I want you to understand just from the very beginning that you can't talk about sovereignty without thinking about territory in the way that I just acknowledged the people of this territory. Without, how can you think about sovereignty without land because without land you can't even feed your kids. So, land is absolutely running underneath, it's the ground so to speak supporting what I want to discuss about sovereignty. |
| [6,4] I think I remember, I certainly remember the first time that I heard this man speak.I think in that first time I heard him speak I heard him use that word sovereignty. His name is Oren Lyons and he's a faith keeper for the Mohawk Nation and he said sovereignty. It's a political word. It's not a legal word. Sovereignty is the act, think about that. Sovereignty is the act. Sovereignty is the do, you act, you don't ask. There is no limitation on sovereignty. You are not semi-sovereign. You either are or you aren't. It's simple. And other times when he's talked about that, you know sovereignty is a lot like pregnancy. It's absolutely one of those things, you either are or you aren't. Anybody who has been there knows exactly what I'm talking about. But I want you to remember, hang on to that thought, sovereignty is not a legal word from the perspective of the Haudenosaunee. I can't come here to someone's territory and act like I'm an expert on who they are. They know who they are. They have those teachings I can only honour and acknowledge and respect them and I bring with me my own Haudenosaunee or Iroquois as some of you would know us understanding of the word. |
| [6,5] A bit of aside because I'm very good at asides too, English is a little bit of a problem and I want us to think about that especially when you think about words like Oren Lyons' words. We assume I think all the time when we're communicating across peoples with different ways of being. We assume words like sovereignty or self-government, justice, education have the same meaning. In my experience they don't and I want to look in detail tonight at sovereignty from different places. I want us to think about and acknowledge when First Peoples communicate in the English language who's making English fit? It's First Nations people who are doing the work to make a language that wasn't necessarily created to express our ideas, fit our ideas and our life experience. You can think of that as a story of domination through language, if you want, I would prefer to think of it of an exercise in creativity and how proud I am of our people for making a language work, to capture ideas and feelings and traditions that perhaps was never meant to express. |
| [6,6] While I'm thinking about that while I'm thinking about my people and I'm thinking about language I think we have to acknowledge English as a noun based language. In English you have lots of nouns. You have lots of things. English likes to "thingafy" I think and I like to make up words. Indigenous languages are verb based languages. So when Oren Lyons says sovereignty is the act that's part of what he's talking about. It's the do. And that's because you can't have nouns in those Indigenous languages. It's always describing motion and that's the distance we're crossing when we're communicating in English even if our Indigenous language isn't our first language. |
| [6,7] As I said a minute ago I think it's important to trace the various meanings of sovereignty that as Indigenous people we have to deal with in our lives. Since about the 17th century, there has been an international definition of sovereignty, been developing but I think most people acknowledge as the definition of sovereignty. During the enlightenment, the enlightenment is acknowledged as a source of some of those ideas about what sovereignty is. Ideas such as "state authority" is boundless and citizens are servants of the state. Now if you think back, think about feudalism, during those feudal times in Europe authority was decentralized. As feudalism gave way to industrialism and labourers were needed in cities, economic pressure, put pressure on the people to organize in a centralized kind of way where power was collected in a single spot. |
| [6,8] Blackstone, anyone who knows Blackstone and I know I'm running through history fairly quickly here, wrote in 1823 that sovereignty was the supreme, irresistible, absolute, uncontrolled authority of the state. Since then, sovereignty has developed. It's developed territorial aspects where we think that sovereignty has to deal with the control of defined borders and certainly military defense is an important part of that idea of controlling these defined borders. |
| [6,9] I don't really want to spend my time creating a binary between Western and Indigenous forms of sovereignty. And particularly I don't want to do that absolutely because there's actually a relationship between the two forms of sovereignty. My first academic training was in Sociology not in Law. And having recently returned to Sociology I've been busy figuring out what Sociologists study and what in fact they are. So I've been reading Comte and Marx and Engels and Durkheim and Weber. Marx lived from 1818 to 1883, Durkheim from 1858 to 1917, Weber 1864 to 1920. Think about those from a First Nations perspective of history when these men, the fathers of Sociology, wrote colonial exploration was certainly underway. Wealth was in fact extracted from the New World and it supported the industrialization that was going on in Europe. What we hear talked about less is the fact that ideas were also extracted from Indigenous people. And my point is simply that colonialism absolutely not a one way street. |
| [6,10] The first example I want to talk about is a scholar by the name of Johanson caused a bit of a flurry, fury, not sure what word he'd use. In the American History Society when he wrote and gave a paper about twenty years ago about the fact that my people, the Haudenosaunee, had an influence on the U.S. Constitution. Some historians found that to be an outrageous idea after all what would Haudenosaunee people know about democracy? Yet our political organization was a system of families, organized into clans, organized into nations, into a political confederacy of six nations which is what the British called us where each nation remained independent from the larger political confederacy as often did clans within those nations. That those ideas of a federated state sound familiar? Because those social structures existed in North America and not just among my people but when settlers came Johanson was rejected. He found it difficult to publish. He found it difficult to publish his book, he found it difficult to secure referee publication and was challenged in his access to securing a tenured position in American universities. |
| [6,11] There have been since a number of scholars who have noted the relationship and the influence between the Haudenosaunee confederacy and those who drafted the U.S. Constitution and their ideas. And I'm not suggesting that's more than an influence and different from maybe Johanson's view is they borrowed bits. The U.S. Constitution is not a model of Haudenosaunee government because they forgot certain key pieces. One of the certain key pieces they forgot were the women. Now if you look back in some early feminist writings around the Seneca Falls convention there are relationships between some of those early suffragettes in North America and Haudenosaunee women where ideas were being shared about political rights with those suffragettes. |
| [6,12] So we need to understand very clearly that the word was also taken back. Actually sometimes people were taken back from here to Europe so ideas influence, Indigenous ideas influenced European ideas. Plays were written about the Indians in North America. We're staged in Europe and yes that's right I'm suggesting that at that time oral tradition was a very important mechanism in Europe for sharing knowledge. Now, here's where it becomes very interesting for sociologists. Karl Marx read Lewis Henry Morgan, a book titled "Ancient Societies". Lewis Henry Morgan also wrote, he was an anthropologist, he also wrote "The League of the Iroquois" talking about that political confederacy. Marx read Morgan and made extensive notes, he then passed away and then Frederick Engels inherited his notes and after reading his notes he wrote his well respected paper "The Origin of the Family, private property and the State". Let me just give you an example of what Engels wrote "... that woman was the slave of man at the commencement of society is one of the most absurd notions that have come down to us from the enlightenment of the 18th century. Woman not only occupied a free, but also a highly respected position among all savages and barbarians of the lower and middle stages and partly even of the upper stages." |
| [6,13] He went on Seneca traditions including the longhouse, the clan system, the position of women and the process of dehorning chiefs that's in about the fourth or fifth paragraph of his paper. Engels I think was actually very excited about having this Seneca example because for him the Seneca example proved that communistic households actually existed. So the Haudenosaunee in fact influenced at least two of the fathers of sociology and I've just since returning to sociology started to track these little tidbits down. I'm sure if we continue to keep tracking we'll find more and more and more. The interesting question that I have is why didn't I ever learn this in any of the many sociology lectures that I undertook at several very well respected Ontario universities? And I don't think that that is an odd experience I actually think that's a typical experience not understanding that Indigenous ideas had influence overseas that there wasn't this one way street. |
| [6,14] And I think that that is very important that we used to think about packing this, I suppose it's not really a binary, that this idea that there's better races of people to belong to, that some societies are more advanced and evolved. I don't believe that a true study of history actually points to that societies are organized in different ways for different purposes. I'm in fact not suggesting and I don't want you to walk away from here thinking that anymore than the drafters of the U.S. Constitution that Marx or Engels got the Haudenosaunee right. They didn't. I mean they were an anthropologist standing in between them and their information was secondhand in somewhat filtered. Merely, I want you to acknowledge and accept that that influence did exist and it affected their thinking. It should be credited and respected. |
| [6,15] Now, I want to talk to you about what I suppose some will experience as the other side of the binary although I've pointed out that there was this relationship that existed. And I think for me when I look at the global state of the world and the things that are happening in the world it's very important that we have other models of governance to think about and to follow. I think to be an Indigenous person and to understand who you are at this time is a very onerous responsibility. There's lots of work to do. I'm very glad that my friend, Satsan, is here because I'm sure he's going to bring a coastal view and his perfected perspective to some of the ideas that I've shared here tonight. One that is closer to this territory. But I want to talk about the Haudenosaunee view of sovereignty and I remind you again that Oren Lyons said that it's not legal. It is about do, it is about action, it is a verb to the Haudenosaunee mind. Sovereignty for a Haudenosaunee person is not about rights. I can't go to law school and learn about Haudenosaunee sovereignty. I have to go home. I have to meet with the people, with the elders, with the teachers. I have to know my clan when I sit with the turtles in longhouse. I have to know my name, my Indian name is (Patricia's Indian name?). It means the one speaking with words or leading with words but don't make that hierarchical, it's a responsibility. |
| [6,16] I want to stress to you that it's not about rights. I want to tell you about a bit of an embarrassing story which I've told many times actually that it's gotten way less embarrassing as it was the first time I told it. When I was in law school the first time I was the only Indigenous person in my year. In third year, the year that I was in first year, there were three Indigenous people. When I moved to second year nobody was admitted into first year so I was the only Indigenous person at Queen's in the law school for a year. The year after I think they admitted three into first year the year following me when I was in third year so I wasn't alone anymore. I went I started law school in 1984. I'm getting a little sensitive about dating myself but it is indeed important to this story because we all know I hope that something very exciting for lawyers happened in 1982. The British parliament passed the Constitution Act part 2 and we got the Charter of Rights and Freedoms. I don't think during 1984 when I went to school and it didn't matter what class I went to, it didn't matter if it was a class on property, it didn't matter if it was criminal law, whatever, constitutional law, you name it, whatever it was, civil rights, torts, that I didn't hear Charter of Rights and Freedoms. It was truly Charter Mania for the legal mind. So I heard almost perpetually about rights. All the rights we had now and wasn't this a grand celebration. |
| [6,17] I guess the first thing I should admit was that I was a little bit cynical. Any document in the first section that takes away the rights that they haven't yet given that makes me a little bit suspicious. Anyways, I was hearing all this chatter about rights and I was probably daydreaming about property law one day because I found that class, the notion that the Crown owns all the land a little bit difficult to process. And I thought you know, it's funny, when I go home and talk to the elders I can't quite recollect a time that they talked to me about rights. Now here's the embarrassing part ... hang on I need water. (takes a drink of water) The embarrassing part ... what suspense hey! I thought what's the matter with them? Oh me, how could you think of that about elders and condole chiefs and clan mothers but that's what I thought. And it really bothered me. You ever have one of those ideas you know it just seems to fester in your brain and you just can't get away from it, you can't get it out of your head it just totally has you preoccupied. So I eventually loaded my son in the car and drove home to Six Nations from Kingston and went to see Jake Thomas, the late Jake Thomas. I knocked on his back door and I said, Jake, glad you're home I really need to talk and I can get pretty intense right but some of you know that. So, he said okay. Well I think I maybe really confused. He said okay. He said well I'm kind of busy now but you look like you better come in my girl. And that's a term of endearment it's not patronizing and it doesn't offend me when the old people call me that. They still call me that actually that kind of makes me happy ... getting age sensitive what can I say. |
| [6,18] And then I was really embarrassed again because we went downstairs. Jake had a teaching area set up in his basement and his tables were like this but two wide, two long and he had a wampum on the wall that he would use to teach with and that's how our treaties were recorded. He said to me well what's troubling you. I said well you know I'm in law school now and I was really proud right and I said I'm in law school now and they talk to me all the time about rights. Yet, when I come home, you all never talk to me about rights and I don't understand because rights are really important. And he just kind of did one of these "uh huh" and he says well I want for you to sit here while I finish my meeting. He was meeting with three other condoled chiefs and I interrupted ... oh that's bad. He says I'm going to talk with these old guys and those were the words he used and you sit down here at the other end of the table and you figure out for me how many rights you have. |
| [6,19] Okay, I can do that. And I started counting, of course there's property rights, you know there's those Charter kind of legal rights to be free from unreasonable search and seizure, the right to be free from discrimination and there's Aboriginal rights and better not forget the treaty rights and well there's other human rights, women have rights and I'm counting away right and I get to the end of everything I can think of and I'm thinking, what if I forget something? It would be really awful if I forgot a right on my list and I think I kind of felt like maybe the sky would fall in or something, like this was a really wrong thing for me to do so I thought okay think again. Maybe there's some other way of conceptualizing that they're easier to count. |
| [6,20] So after oh an hour or so, Jake said to me, he said well my girl, have you figured out how many rights you have? I said, no, I'm still thinking. He said, okay go ahead think some more. Okay, so I thought and I tried counting again and about an hour later he asked well have you figured it out? No, I'm having a hard time. Okay, think some more and he did that all day. He left me to think about this all day. His beautiful wife brought us some lunch, my son was playing trucks under the table and I sat there and tried to count. Finally, around supper time he says to me, have you figured it out? I said, no I can't, you know I'm scared of forgetting one. He said okay my girl, he says, it's actually really simple he said because you only have one right. |
| [6,21] One? What's he talking about I know I have more than that I've been to law school. He said, yes, my girl the only right you have is to be a Mohawk woman because that's the way Creator chose to make you. And notice that the right to be a Mohawk woman was not two rights, it was not a race/culture national whatever label you want to put on it, right tribal versus a gender right. It was one right. The Mohawk and the woman joined together. Subsequently, seeing this was more than twenty years ago now I've figured out that that old man was ever so right that that is the only right that I am in need of having. What he said to me after this rights conversation was even more important because it reshaped my life. |
| [6,22] He said from the Haudenosaunee point of view it's not the one right that's important you know how to be a Mohawk woman. What's so important is your responsibilities. Your responsibilities, he said, to your son under the table playing with the cars. What are your responsibilities to him as mother? Your responsibilities to Mother Earth who you walk on who sustains all your life, to Brother Sun, Father Sky, all that's around you in the universe. People who are your friends now students that I teach. What are your responsibilities? He said those are the things that you need to spend time thinking about and understanding. And since then, I've understood that what he taught me was so important. And it's so important because when you think in that rights framework of law school where does it focus your attention? On me. This right is mine and I have it and I can defend it against you. It creates distance. We push people away. When I think in terms of my responsibilities it creates a different kind of thinking because it makes me think about what are my relationships. Am I having good relationship and I would assert to you that's the Haudenosaunee meaning of sovereignty. When you're having good relationships you are acting in a sovereign way. |
| [6,23] It's interesting to me on the prairies where I've been living for the last eleven years territory of Treaty 6, Cree, Saulteaux, Métis peoples, some Lakota, Dakota, Nakota people around, that the office of the Treaty Commissioner commissioned Harold Cardinal and Walter Hildebrandt to go around and talk to the elders in the province of Saskatchewan and to collect their stories, meaning history, about treaties. And when they wrote up that book that's where they start, they start with your duty as a Cree person to have good relationships. They don't even start, they don't even get to treaties until they are three quarters of the way through the book which I thought was a pretty interesting thing to do for a book that's supposed to be on treaties. Why did they do that? When I respected elder, Jimmy Mile, to my class in the university to talk about treaties that's what he did. He talked first about having good relations and he talked about being a good Indian. The word he uses. Why? Because he was talking to those students about what their responsibilities are. |
| [6,24] When I go back to my people and I think about the whole structure of law or Constitution you hear about the great law of peace that the Haudenosaunee people had. Well when you translate that word it doesn't really mean the great law of peace. What it really means is the way to live most nicely together. It's just those teachings again about having good relationships that's all it is. Another one of my teachers an Ishnobee (sp?) man an elder used to always say to me, oh he used to muddle me up, I used to get so mad at him. I wish he was still here so I could say to him I get it, I finally get it. He used to say Trish in its vast complexity it's profoundly simple and it's so true because sovereignty is about our responsibilities. It's simply about how to live a good life as a Haudenosaunee person. |
| [6,25] I want to say just a few more things about treaties because I know that in British Columbia that this treaty process happening people thinking about taking treaty now. And I live in an area now where there were treaties signed, Treaty 6, signed in 1876. Interestingly enough, does anyone know the year that the first Indian Act was passed? 1876. So while the ink was drying on the signatures in the prairie region in the summer and fall of 1876 somebody in Ottawa was holding a pen and not cross referencing those numbered treaties that were being signed and making Indian people dependent, giving them the status of wards. If you pick up any of those numbered treaties from the prairie regions and you start reading the first clause always says something to the effect of "the Indians do hereby give up, cede, surrender ... "whatever legal property word they could think of to say you're giving up the land in that first clause and the chiefs' signed that. What was that? Was that orally explained to them? What they understood when you go talk to those treaty elders was that they were agreeing to share the land to the depth of a plough, six inches, that was it. |
| [6,26] When I talk to my students in the prairies about treaties there's quite often some resistance from the non-Indian students in the classroom. And they want to know why in the year 2005, Indians should have special rights. That's a really silly thing to ask me. Because the response is this, when you look at a treaty who's party to signing that treaty when two parties make an agreement do you think it's logical to assume that the powerful party, the Crown, if military might is the measure in 1876 in the prairies, didn't take something for themselves? But none or very rarely do I have a non-Indigenous student trust me even some of the Indigenous students who understand that citizens of the Crown also hold treaty rights. |
| [6,27] Now what do you think is going to happen if I send you over to UBC law library and say find me all the articles on white people's treaty rights? Are you going to bring me back a mountain of material? No. You're not even going to have the good fortune to bring me back one article you will find absolutely nothing. We hear about Indian people's treaty rights and I'm used to historical language because it's those rights that have never been implemented. It's Indian people who have to fight for the right to hunt and fish and let's be careful because if we stop thinking in hunting and fishing we're back to land again right.If we stop thinking about hunting and fishing we're only acknowledging what tended to be at least among my people, the male responsibilities. Haudenosaunee women had responsibilities to gather and grow. And if you look at the historical research so did the women of the prairie nations. So when we talk and acknowledge only about rights to hunt and fish we have to acknowledge what we're giving up because we also have rights, if you will, to gather and grow. We have to make our thinking complete but we have to fight to exercise those rights or to even have those rights named. |
| [6,28] When I ask my students well then list for me what are the rights that citizens of the Crown have? All of the people who have come here. They look at me bewildered. Well let me give you some help, I don't think that this is a definitive list. They have a right to share the land from Treaty 6 to the depth of that plough that's an acknowledgment of their agricultural practices and their right to those agricultural practices. And I guess if I want to modernize non-Indians treaty rights I could say that that right to agriculture given it was the economy of the time of the prairie, really isn't merely an agricultural right, it's a right to their own economic pursuits in their own ways. I think those treaties gave people the right to their own religious practices without discrimination, their own styles and structures of governance, all the things that make Canadians, Canadians and make them proud. |
| [6,29] In the area of Treaty 6 those are treaty rights but you never hear them talked about that way. Treaty rights for non-Indigenous people in this country are so exercisable they don't even know that they have to have them. It's only Indians that have to fight for those rights that's what makes them look special, they're not race based rights they're the rights of all people. And just one last thing, I've told you a bit of a fib. I told you there were two parties to the treaty and that's not really true. My son corrected me yesterday so I'm going to get it right today. There's three. Because when the Cree people in Treaty 6 made those treaties when they gave their word they did it with a pipe and when they put those promises through with that pipe that relationship became sacred so the Creator is the third party to those treaties that's a sign of how solemn and important it was to the Cree people that they made those promises essentially to have good relations with all of the nations who came over that pipe. (end) (audience applause) |
| [6,30] (Linc Kesler goes to mic.) We're going to take a short pause for a little technical refurbishing here and we'll be back in a second with our second speaker. Please join me in welcoming Herb George our second speaker. George: Good evening everybody. What a beautiful building, wonderful to be in a place, a nice space like this. First of all I want to acknowledge the Musqueam people and the Coast Salish territories that we're on. As Patricia said that's very important to us because given the topic we're discussing tonight my take on it is that Patricia is absolutely right sovereignty is the act. Below that I guess, the other side of it on our part is to recognize ourselves and I want to put my remarks in that context tonight. |
| [6,31] But before I do I want to acknowledge a couple of very special people that have come through my life that are here tonight and makes me very happy. Judge Scow and his wife, Judge Scow was a ... stand up Judge Scow ... (clapping) ... he's one of the first Indian, I'll use that word, law graduates in British Columbia and one of the first of our people to be called to the bench in British Columbia and very honoured and proud to see you tonight Judge Scow. The other is professor Paul Tennant who I've known for many many years and whose courage I want to recognize tonight because we talk about Aboriginal rights, we talk about sovereignty, it takes people to make it happen and Paul Tennant has been one of those people who has not been afraid and has shown great courage to speak up when it wasn't popular to do so and I'm glad to see he's still speaking up today. |
| [6,32] He and I had a little exchange one time when the Delgamuukw and the Gisday'wa decision came out of the Supreme Court of British Columbia where Chief Justice McEachern as he then was made his infamous decision to pretty much create an invisible people. We went into the Supreme Court of Canada at that time to say to the court that we are a people. We are a people with a history, we are a people with a land, we are a people with a language and we are a people with a spirituality, a people with government, a people with laws, a people who have managed their time on this land for thousands and thousands of years. And we put forward our witnesses, the Gitksan-Wet'suwet'en hereditary chiefs and elders to educate the court about who we are and of course in the process begin to try and educate the Canadians at large, the public at large. Chief Justice McEachern's decision he came out and said we didn't have neither of those things that makes me who I am as a Wet'suwet'en person, a history, a language, a land, a spirituality and so on as well as the Gitksan people. He denied everything about who we know ourselves as and I characterized his decision as racist and professor Paul Tennant who was a little bit more diplomatic than I was at the time, maybe still is, he said no it was ethnocentric and so we settled kind of our difference there this way. You can say that it's ethnocentric because it's not about you. I can say it's racist because it's about me. There's a difference and tonight he told me as he came in that he has since seen his way to my line of thinking about it so nice to see in professor Tennant. (applause) |
| [6,33] This is tough stuff to talk about and to be honest with you I get sick and tired of talking about it. I give, I've kind of given up talking about it because I want to focus on the point that Patricia began her remarks with and that is that sovereignty is an act, it's an act of doing something and to be honest with you I've just gotten bloody sick and tired of talking about whether or not our rights exist so that you can act, whether or not we have an inherent right to govern ourselves and so on. And I'm sick of it because in my opinion we've accomplished those things and the time has come for Aboriginal people across this land to begin to organize amongst themselves to pick ourselves up once again and to act, to act on what we have and what we've always had and what we'll continue to have into the future. To create and have a good life for our children and their children and future generations and while we're living a good life to always remember that we have responsibilities and obligations amongst ourselves as people and our respective nations and with respect to the land and the different values that we place upon it. |
| [6,34] And our elders have always told us, you know when you talk about management of land and resources that you can never do that because the land is too big, it's too powerful and the best that we can hope to do is to manage our activity and to be responsible and to learn of the obligations we have regarding that. And I think that's very very important today because today we have that ability, we have that ... the time is now to step out there to act and to do. And one of the problems we have with respect to that and I'd like to give you a quote from a book that I pack around called the "Fifth Discipline" and it's all about governance but in this case it's about corporate governance and there's an interesting line in there. It says "one of the heaviest weights that oppression leaves on the shoulders of its former victims is simply the memory of it because it pulls the oppression forward out of history and into the present. |
| [6,35] And just this past December I was in Ottawa at the Assembly of First Nations Special Assembly, and just this past November the 18th, a couple of very important decisions came out of the Supreme Court of Canada. The Haida decision and of course the Taku River Tlingit decision. But in this assembly, the AFN, there was not much discussion of that although there was some recognition of the accomplishment. The discussion was of other things not so important in my view but it seems that we like to preoccupy ourselves sometimes from the real issues at hand. And this gentleman got up, Chief David General, I believe was his name and he said we shouldn't do anything until we can have access to our territories again. We shouldn't do anything until our jurisdiction is recognized. We shouldn't do anything until we have true revenue sharing to rebuild our economies so that we can look after our people again and we shouldn't do anything until our laws are recognized and he sat down. |
| [6,36] And I watched the people and I listened to several more speakers speaking pretty much in the same line and I got up and I introduced myself and I said first off I want to pay my respect and to honour the Wet'suwet'en hereditary chiefs, elders and people. The Gitksan hereditary chiefs, elders and people. And I want to thank the Haida people and I want to thank the Taku River Tlingit people for giving Chief David General access to his territories. For giving Chief David General a recognition of his jurisdiction, for giving Chief David General revenue sharing and ability to rebuild an economy and a recognition of our own law. And I made the point that the time of talking and looking for recognition is over. It's done. We've accomplished it. We've changed the law in this country, we've created new law in this country,Patricia talked about the repatriation of the Constitution in 1982, the inclusion of section 35. At the time, known in our circle as an empty box because people couldn't figure what it meant, what was the content and scope of section 35? |
| [6,37] And given a relationship with the Crown, federal and provincial, territorial from our perspective, the political perspective, and was an empty box. It didn't mean anything and in the meantime we filled up that box, we created Constitutional space for the notion that Aboriginal rights and Aboriginal title. And I remember when we were putting this forward to our legal team, bringing it forward, Delgamuukw and Gisday'wa and we had to come up with a Constitutional argument to create space. What we said was it begins with the Royal Proclamation, 1763 and recognition. The first recognition that Aboriginal title and rights exist and lays out an obligation on the part of the Crown to deal with it and subsequently the Constitution of 1867, I can't even remember that far back, what we had said was that section 91(24) which is the Act dealing with Indians and lands reserved for Indians, didn't just mean reserves but it also meant the rest of our territories and that there was further recognition in section 109 which gives Canada the power, at the time, to create the provinces like British Columbia, 1871. Where Canada could say and create the province of British Columbia that the Wet'suwet'en are given over to this new province and this new government to make itself. But there's, there's a caution in section 109 which says that this transfer can occur subject to any other interest and the land and we argued that other interest was our interest and further that section 35(1) was a recognition and a protection of the entire right that we say we have, the right to live a good life. And Delgamuukw and Gisday'wa did something mighty important because it created a change in the law whereby the first time in this country, the first time in law, Aboriginal title was recognized as a legal right in law. |
| [6,38] It might have not gotten it right in terms of the nature and content of it but at least it was a recognition. And more than that, to also say that that right could never be taken away. It could never be extinguished except by our consent but the kicker was unfortunately you Indians never proved title so you have to go back to court. And that's where Haida and Taku I think have done tremendous good work, Haida people and the Taku River Tlingit people because they took it one more step they went to the courts and said how can rights exist in a vacuum. How can you say that we don't have rights when I stand before you, speak before you and can see me, you can touch me, you can hear me, it's foolish to say that you know that we can't exercise our rights unless we prove it in law that we have them. And that we can protect the lands and territories that are so important to us. |
| [6,39] And so those issues are taken care of to the point where, my opinion is that we don't need to talk about it anymore and we don't need to look for recognition from anybody anymore and as I said at the Assembly of First Nations, the only recognition that we need is to recognize ourselves and to recognize each other and to get on with the job of living, to get on with the job of dealing with the poverty in our communities, to get on with the job of rebuilding our economies, to get on with the job of taking this oppression out of the minds of our people, to be free in our own mind, to believe that we can look to a better future and we can have it, we can make it happen according to what we need. And we don't need anybody to give us that, we need to take the time, as I said earlier, to get organized, to be strategic about what we have to do, to be clear of our vision in terms of the future and ultimately to be very very sure of the goals and the objectives that we set for ourselves and having the ability to measure our movement, to measure our success, to deal with our failure, and learn from it to move on. |
| [6,40] I believe that given that situation the most critical issue for us now is the issue of governance. Patricia was telling us that the Indian Act was brought into effect in 1876, that's a long time ago, but yet we still have it. I still live on a reserve, we still elect our chief in council according to the Indian Act and we carry out and administer programs and services that the Indian agent used to deliver to us and they still have a big say in our lives. As I said earlier, this stuff is hard to talk about and sometimes I get fed up with it. I get tired of it so I have to find something else to occupy my time, take advantage of the creativity that I have in my mind. So I heard about the World Indigenous Bullshitting Championships (laughter) and so I thought hey, that's something I could be good at, I'm a natural born good bullshitter ... so I entered. This was about maybe fifteen years ago and so fourteen consecutive years I was The Champ (laughter) and if you could imagine this you needed a huge huge arena because this was World Indigenous ... sea of brown faces, the best Indigenous bullshitters in the world bar none and white people weren't allowed. You know why, not because they were white, because we figured they had an unfair advantage of bullshitting. (laughter) |
| [6,41] But anyway, last year they held the Championships in Hobbema, outside of Edmonton because they had one of the biggest arenas that we could find in the country to host it in Canada and I was on my way to repeat Champion, it would have been the fifteenth year straight, and I was in the midst of delivering my winning joke and I was telling a story about how you know how we always like to talk about hunting and fishing and people know me as a person that deals with Aboriginal rights and title and law and governance and so on. But the other side of me, in our community, is I'm a famous hunter. No one across this land far and wide I just drift through the forests, I can see through the trees, and I can see an animal like a mile away and I lay down and I triangulate, figure out the height, the kind of cartridge I'm using, how much powder is in it, the weight of the bullet and I'm able to triangulate right on to the animal ... BANG. |
| [6,42] Anyway, that's how great I am. So one day I was hunting and I shot this moose and the bullet went right through it and it hit a rock and it ricocheted up to the sky and there was a flock of geese flying by and it hit two of those geese and it deflected off the wing and it went down towards a lake and just then a fish was jumping, hit the fish, bullet ricocheted off that, hit a grouse in the tree, went down, killed a bear and just then a door opened and there was a white guy standing there and of course I stopped. The whole crowd stopped laughing because they were roaring because they recognized the winning story here and we all turned to the door and then the Master of Ceremonies said "Excuse me Sir, uh, you seem to be lost ... don't you realize that this is the World Indigenous Bullshitting Championships and it's closed." And he says, "Yeah I am lost maybe you people can help me?" And so he said "Well who are you and how can we help you?" And he said "Well I'm the new Indian agent and I'm here to save the Indians." And they gave him First Prize! (laughter) |
| [6,43] But ... but I want to just finish off by a couple of practical things. There was a great study done by a ... and it's come to be known as the Harvard Project out of Harvard dealing with Indian economic development in the United States. They did a study, quite a massive study to determine why is it that some tribes can be very successful and other tribes not successful. And through this study they identified several factors that contributed to the success of those tribes that were successful and one of the factors was what they referred to as practical sovereignty. That means that you have the ability and the power for real decision making in terms of what you want to do, where you're going and what you're looking for in terms of the future, in this instance, in terms of economic development. |
| [6,44] The other factor that was identified in this study was that capable governing institutions were important and what they seen here was that those tribes in the United States who were organized, strictly under the B.I.A., the Bureau of Indian Affairs there, their Indian Act in the states much like our band council system here weren't successful. Those tribes that used their own institutions, their own systems of government or where there was good cultural match, good cultural fit were the ones who were successful. And everybody's glommed on to this study because it's important and Dr. Stephen Cornell is one of the people who did this came up with a table where he makes the comparison between self-administration which is the way he characterizes the Indian Act and what we do under the Indian Act and on the other hand true self-governments. And the different elements of self-government that they identified the number one jurisdiction this notion of self-administration under the Indian Act is that it's vested in First Nations but limited to narrow policy domains and subject to federal and provincial veto whereas in the area of self-government jurisdiction is vested in First Nations and given Haida and Taku and Delgamuukw and Gisday'wa where the law in British Columbia states that before government can come on to our territories and do anything they have to come and talk to us, consult us properly, meaningfully, fairly and to accommodate our rights and our interests to fundamentally address them, to balance. |
| [6,45] And it raises two very important questions: Number one, why should they talk to you? Because you have a right. We've accomplished that. But more importantly, number two, who are they talking to? And I think that for us is the big issue. It's the big test because when they're talking to us are they talking to you know a band council, a creation of the Indian Act, or are they talking to nations? Nations of people with a history, with a language, with a land, with a spirituality that makes us who we are as Wet'suwet'en people, Gitksan people, Haida people, Coast Salish people, Irish people and so on. In terms of governance and institutions, what we have now are institutions created under the Indian Act subject to the Indian Act administering their programs and services and so on. On the other hand, we're talking about self-government. The ability to create our own government and to create our own institutions, to breathe life into our own systems of government, to bring forward our own law, to bring forward our own ability to manage, to respect the land, to work with one another and ultimately we're talking about governance and the ability to govern ourselves we need to be talking about we resource it. Where do you get the revenue from? It comes from the land as it always has. |
| [6,46] Patricia mentioned earlier on in her remarks we have the right to be who we are as a people. One right and we have responsibilities and we have obligations that we live with through our whole life and are expected to carry those out. When we talk about rebuilding our economies building a revenue to govern ourselves we have to at all times keep that at the forefront of our activity otherwise we'll just do the same thing that everybody else has done or is doing, the same thing that we've always disagreed with. Clear cutting was the rallying cry amongst the Gitksan and the Wet'suwet'en people because we have a responsibility out there an obligation to the land that comes with our names that's passed to us in our oral histories and we're expected to carry that out for the full duration of our life and our time on this land and I say that governance is the biggest issue for us but the other issue is to bring back our own memory to take the oppression that I spoke about earlier out and cast it away and cast it aside so that we never have to touch it, see it again. |
| [6,47] And I'll end with this, the struggle for recognition in the law of this land we know as Canada was a long one and it began in my grandfather's time. And the Gitksan hereditary chiefs, elders and people and the Wet'suwet'en chiefs, elders and people we had it for many decades and in that long process from time to time we have to come together to remind each other what this is about. Why are we doing this? And of course, we as Wet'suwet'en people one time gathered this was shortly before the decision came out of the Supreme Court of Canada in 1997 and my uncle, one of our chiefs, Wah Tah Kwets is his name, he said what this is about is to put a new memory into the minds of our children. And like when Patricia she talked to Jake Thomas I puzzled about that, I couldn't sleep that night, couldn't wait to see him the next day to ask him what did you mean? And he said, we have to change the stories that we tell. We have to put a new memory in the minds of our children so that the memory that they have from here on out, from here on forward, is a happy one. A memory full of love, safety, filled with hope, be able to go to bed at night and dream big dreams and to wake up in the morning and to know that you can have it, that you can accomplish it. That's what he meant by putting a new memory in the minds of our children. |
| [6,48] And I was reading a book by an author named Ben Okri who said, studying oral histories in Africa, he came back and said that you can tell the health of a nation by the stories that it tells. If it tells stories about pain and anger, hate, helplessness, hopelessness, then that is the state of its people. And the job that we have to do is to change that around and to put a new memory in the minds of our children and you don't do that by sitting around talking about sovereignty. You do that by doing it. Getting involved in the act. I thank you for your time and I appreciate the opportunity tonight. Thank you. (applause) |
| [6,49] Linc Kesler approaches mic. We'll take just another minute here to let our technicians do the things they need to do and then we'll have some time for some questions and I think it's been our custom most of the time here that we'll take questions from the floor and if there are any coming in on the internet those as well. If you could pose your question from the floor, I'll do my best to paraphrase it accurately so people on the internet will be able to hear the question as well. We're ready now to hear your questions so someone out there have a question for our speakers? A joke then? I think we have a brave man here in the front row. (Dialogue is slow here.) (Audience member can't be heard, approximatly 40 seconds) |
| [6,50] (Linc Kesler paraphrases the question) The question was in reference to the two recent court decisions the Haida decision and the Taku decision whether the Taku decision represented a failure from an environmentalist standpoint and I guess the question was directed towards Herb. Herb George I think the tendency is to dwell on the point that you raise which is that the environmental perspective was a failure. But there's more to the Haida/Taku decision than that. What's lost in all of it, I mean it's gone to the Supreme Court of British Columbia, it began by judicial review right to the Supreme Court of Canada. And what gets lost along the way is that it was the Taku people who had a ... played a huge part in taking the decision of Delgamuukw and Gisday'wa one very large and important step forward which was to dismiss this notion that we have to prove Aboriginal title before an obligation to respect it exists on the government and/or third parties. So that's very very important to me, that's big to me and that's why I always take the time to acknowledge the Taku River Tlingit people for doing that. |
| [6,51] Now having said that I think that the problem in that decision was the whole issue around well what is proper consultation and what is proper accommodation in the view of the Supreme Court of Canada, the consultation process that the Taku River Tlingit people went through, the environmental review process regarding the proposed mine and the accommodation was good enough. However on the other side the Taku River Tlingit people of course don't agree with that and they haven't been just laying down either. If you've been paying attention to the news, especially this past week, I think there's every possibility and there's every, I believe that ultimately the Taku River Tlingit people are going to be successful. That you know, sometimes, you know, what Patricia was mentioning earlier it's a crapshoot going into the courts. And sometimes you win or you lose. But it's not the end of the day for us. I mean don't forget that McEachern ruled us out of existence we became invisible people but we're still here and we're not kidding ourselves either I mean we know damn well that there's still a lot of work to do. There's still lots of changes that need to be made with respect to the law in this country and we're not about to roll over and stop. So, I think that you have to look at the other side of it too in this case with the Taku River Tlingit, they accomplished something great in my mind. The other issue regarding consultation and accommodation subject to interpretation and it's not the end of the day for them so I just wanted to make the point that there's more to it than meets the eye. |
| [6,52] Patricia Monture To follow up on that I think it's and you know I've been kind of guilty of this too with all those years in law school. But we always analyze decisions from the within the four corners of those decisions. What you don't see when you're reading the law journal is the impact of that struggle on the community and the way that it changes the community and I think there's been communities who have been very positively impacted by engaging in those decisions because I'd assert, they did something. So we have to think more broadly than this is what the Supreme Court said, what change did it really create for the people. |
| [6,53] Linc Kesler There's a question in the back over here. (audience member asks question, approximatly 1:15 seconds) Linc Kesler: I think the gist of the question was really about Indigenous women's ability to maintain their rights under the distinction made between self-administration and self-governance sort of keying off of some of Herb's remarks. The real core of the question was on Indigenous women maintaining their rights. |
| [6,54] Patricia Monture I think at first it's very difficult to answer any question that's prefaced on speak to all issues for all Indigenous women. Because situations vary from place to place and community to community not just based on the different nations that we belong to but the different community histories, the history of residential school has impacted differently, there's a particular, if you look at the population of federally sentenced women in Canada, they're primarily from the prairie region which begs the question why is that? Within that, they're primarily First Nations. I think what you want, so ... so with that qualification on it all? I mean first of all you have to know the history of you know where you're from and where you belong and where your community is at. And I think one of the biggest issues is the way patriarchy has been embedded in some of our communities through the Indian Act. I think one of the important things to do and one of the reasons why I always talk about women, I always work them in somewhere, is because it has to be spoken to. The women have to remember as much as our men have to remember that they depended on us as much as we depended on them and there was not even so much as an equality there but a balancing and a sharing of responsibilities and when I speak you're always hearing the woman side of it because I can't speak as anything else so there are particular issues that women are confronting in our communities where colonialism is kind of seeped in and patriarchy along with it so there's lots to do. |
| [6,55] There's bigger issues in the outside society like the Amnesty International Report and 500 missing Aboriginal women and the impact that ... I mean to me that is so staggering the impact ... I mean just ... it truly boggles my mind that that can just not demand a response. The number of people who are touched by the loss of those women's lives and never having any questions answered and you don't know if that person is okay or not. So, for me it's a lot about speaking out and I think that I'm a teacher because it gives you the opportunity to encourage other people to have their voice and I really see that being key and I think that's the same thing Herb's saying because it's about how do we start telling new stories. You know and I think, when I say that I want to acknowledge my father because that's what he did in our family. I don't remember how many times my father said to me you can be whatever you want to be my girl. You don't know how many young women, you know, born in the ‘50's were getting those kinds of messages and I have no doubt that that's why I am who I am today because I had that kind of upbringing that was based on who we are as a people and women's place was within that and the way he lifted all us kids up. And that's what we have to start doing more broadly I think. I hope that's an answer. |
| [6,56] Herb George Thanks for the question. This is one of the issues Patricia and I and others, Judge Scow, have been working on for the past 18 months or so. To create a First Nations Governance Centre to work with and for our people in our community and in the creation of this design of the centre one of the issues the first issues that we come up against is really is the rhetoric that we use amongst ourselves. I mean, we compartmentalize everything, every part of who we are as a people, youth, women, men, elders, infants, and maybe we're missing somebody in between I don't know. But we had to struggle with that because that's, I think that's been the state of the rhetoric as a result of the Indian Act and all those things that have happened |
| [6,57] Whereas on the other side if we're talking about talking responsibility for ourselves and our futures, changing the situation that we have not, self-administration under the Indian Act to self-government. You know we can't kid ourselves that that's going to happen overnight or everybody is going to agree with it. I think that the starting point for it is to be able, for us, to be able to have a dialogue and talk with each other and amongst each other without worrying about whether or not you're a man or a woman or a child or an elder or whatever, but that we are a people of a nation. We're the ones that make up that nation of who we say we are and in my instance, Wet'suwet'en people. |
| [6,58] Do we want to go forward forever, you know, separating ourselves? So I think that we have to start to begin to have a dialogue where we involve everyone from our community, all the people of our nation to talk about the kind of change that we need, the kind of future that we want. In my own instance and amongst our people you know we are a matriarchal society. In my clan two of our chiefs are women and as well in other clans. In my family, my youngest sister is the boss that's all there is to it. So, you know we've got to find a balance and I think that we've got a fair ways to go to get over the problem that we've got there. But it's not lost on anybody I think that everybody recognizes that we've got to get to it. But we've got to change the way we talk about it. |
| [6,59] (audience member asks question, 1-2minutes) Linc Kesler: The question I believe is how, what advice do the speakers have to youth who wish to escape falling into the trap of the predecessor leadership that has, whose thinking has been trapped into the terms of the Indian Act and that has been framed in terms of traditional custom. Is that somewhat accurate? Okay. |
| [6,60] Herb George I like the way you characterize it as a trap because that's what it's been. You know, I mean the issues that we have to deal with, face and change are not just issues that hang separate and a part on different branches of different trees they're a part of one system. It's a systemic problem. If you look at the Indian Act and you think that we can build a better a future, that we can change these issues that have come on women and youth, using that same system that we can create a better future for your children, that we can rebuild our own economies ... not a chance. That system was never designed for that. In my opinion, the Indian Act system was designed to take us off our land, to oppress us and to continue to suppress us and it's been very good at it, it's done its job very very well to the point that in this day and age as we speak tonight we have the ability to change it. But we don't. |
| [6,61] You know, we're still looking around for recognition. So, how do we avoid the trap? I say we have to change the system and what system do we use? It seems to me that we've got to look to the system that we know. We've got to look to the system that's comes from our history, comes from our land, comes from our language, come from our spirituality and we have it. It amazes me that in our communities we can take off our hats, you know I could be wearing the Indian Act hat one moment, the next moment, I'm a free man wearing a different hat. Well I say that we need to eliminate that other hat. We need to eliminate the Indian Act, we need to eliminate that system from our lives and that's how we avoid the trap because if we don't change that system then we all continue to be in the trap and young people, |
| [6,62] I like to say to young people, I was young once and you'll be old soon. (laughter) So, but the point of it is that we're a part of the same people and we can't see ourselves differently, we have to see ourselves as two pieces to the whole. You just happen to be younger and I just happen to be older. But we're, I think that our responsibility and our obligation is the same and we just have to find a way to go back to our own system. Like in our system, the feast hall for example, our oral histories they're passed on and on and on all the time. You walk into our feast hall you'll see young people, little babies to the oldest of our people. Everybody has a part, everybody knows their part and everybody understands it. There's no separation between whether young, women, old or otherwise. I think that we have a lot in our own history that can bring us forward. |
| [6,63] Patricia Monture This may be saying what Herb said in a different way. When I was working with the Royal Commission on Aboriginal Peoples and I'd go talk to the commissioners and they kept asking for a model, they asked me for a model one more time I think I would have screeched. It won't work. There's absolutely no model that is going to be prescriptively the right solution for every First Nation in Canada that discounts the national diversity of our peoples, it discounts geography, it discounts tradition, it discounts time and how time has impacted us differently in different places. Our cultures change and grow and evolve too. They never got frozen and left anywhere. So, the model won't work. I think the best strategy is to embrace flocks and our people did that historically. If I don't know how to fix it maybe the best thing I can do is screw it up right? Why? Why would I say that? Because it makes other people think, don't do the same old predictable thing because that's really the problem with the Indian Act, that's the trap. It's got us in this rut believing that somehow this is actually good governance and it's not. |
| [6,64] When you think of how our people work were if you accepted that the language was verb based, we understood movement, we understood energy, we know there was going to be change. Change wasn't a bad thing. You go talk to communities I mean what do you think happened when Indian people and this isn't a comment on whether it was good or bad but they voted down the Charlottetown Accord that was because so many people were terrified of change. They'd rather live with the devil they know which is the Indian Act than have change that's a quality of oppression of losing that ability to be able to trust and how to trust yourself. So how do we learn how to embrace that natural flux that's part of life and we always understood that. Because my work is about Aboriginal justice you know do we stop and think if there's stuff going on in our community. Somebody comes into my yard on the "rez" and steals my kid's bike, dollars to donuts I know whose got it. Do I pick up the phone and call the R.C.M.P.? Do I ask them to fix my problem for me? Or do I break my dialing finger and say we're going to resolve this on our own in our ways. Maybe the fact that my kids all have brand new bikes and the kids down the road is really poor, maybe that's actually the source of my problem. Maybe it's not because that kid's evil and should be punished. |
| [6,65] You know, do we think these things through before we jump looking for those, I guess, the trap, you know there it is in the justice system again. I think what's more important and it doesn't matter how old you are you have to know yourself. The Creator gave us all gifts and every single one of those gifts whether it's the ability to talk in front of lots of people and read books, or make movies or sing songs, or raise the children in good ways, whatever your gift is and there's thousands and thousands of them every single one of those gifts are essential to our communities right now. So find who you are having your Indian name helps you know that helps you know where you fit and we have to have places where communities can talk because that's the only way, they say telling is that first part of healing. We have to move past dragging all that oppression around with us and set us free. And then understand when I say know yourself, you know that individuals in the collective, the collective is in the individual, it's not, you can't separate it, they're always, you know when they say choose between women's rights and self-government, that's a trap. |
| [6,66] Because if I pick women's rights I'm going to destroy the culture and tradition and if I pick self-government I'm going to do the same thing because they're absolutely inseparable I am a part of my community and it's a part of me. Actually I have more than one community so we have to know these things we have to tell those stories and we have to share our gifts. That's my answer and one more thing. I have sons right. When I look at them you know when I look at the work that my son who is a youth does, it's probably more important than the work I do because he's, he went to a leadership thing when he was still in high school that (can't make out words?) and it was actually set up like this, you know, and everyone was talking down at the youth and here were the leaders right. The youth were getting really restless and upset and I was really glad I was doing a workshop that conference and not a panel actually and they were getting real upset everybody talking down at them. My boy stood up and said you know he said I'm already a leader. I know that when I go out in my community if I go drinking with the boys all weekend that my brothers and sisters and cousins are all watching me and that's where I'm going to lead them to. I don't have to wait to be a leader I'm a leader now and that's back to that structure that Herb was talking about how it doesn't organize in segments, organize in a connected way and we all have our responsibilities. |
| [6,67] Linc Kesler I think maybe we have time for two more questions ... back there. Patricia Monture: No, stop going to law school! Linc Kesler: Yeah, I didn't quite hear the question but I know the person asking it so I think I know what the question is and I think the question was for Patricia whether she would advise people to go to law school. |
| [6,68] Patricia Monture: No, the answer is no. Actually, really I hate that question anymore. You know when I went to law school I thought that law was the answer. I get it why so many of our people go to law school it's because they're warriors. You know what I just said about find out what your gift is well that's who they are. They're warriors and they've turned to words and you know that's a good place to turn so I understand the desire. The irony is that what I learned at law school was that law wasn't the answer it was the problem. (laughter) That that is so much so fully a part of our oppression so I don't know recognizing the decisions that we've had out of the Supreme Court so far you know and what Herb talked about and the fact that there is recognition I'm really not sure how many more Indian lawyers we need. I'm actually not sure how many more Indian teachers we need. We've been so, you know it's kind of been like for years the choice looked like it could be an Indian teacher, an Indian lawyer or a Chief. Those were your limited career choices I think we need to work at creating more opportunities for people. |
| [6,69] You know interesting statistics 50% of the Aboriginal people with law degrees don't practice. What does that say? So, I mean there's still going to be some people who are going to do it because they feel they have to I mean I have great respect for you know people who are practicing child welfare law or criminal law in Saskatoon. My friend who sits on the provincial bench in Saskatoon but I don't see where those are the places where the big changes are actually going to come from. So I hope that doesn't offend anybody and certainly I don't want it to discourage anybody who's in law school and I didn't just give you license to quit. |
| [6,70] Herb George: I'd like to take a stab at that as well. I don't talk about it but I went to law school. |
| [6,71] Patricia Monture: That's where I met him. Herb George That's where we met. I was back home during the summer break meeting with the Wet'suwet'en hereditary chiefs and our elders who were talking about the strategy and the work that we needed to do moving into the Supreme Court of British Columbia to start the trial. And they were looking for a spokesperson, someone to represent them, so they were having this big discussion and I was sitting beside my Auntie who is our chief and this man got up and he said we don't have to look anywhere he's sitting right here and turned around and pointed at me and I said to my Aunt, I can't do this I've got to go back to law school. I've got to finish and she said, you can't say no. You know it's a great honour to be asked to do this. Law school will always be there you can go back there some other time but here you can't say no. So I didn't go back and I never did get back either but my answer's a little bit different than Patricia's, it's not the question of whether you should go, the question is why. |
| [6,72] Patricia made the point that most of the lawyers we had when we were coming up was you went there with warrior mentality, I'm going there to learn something so I can fight against this system. That's what it was about and I learned, I guess, enough you know to stay with it for all those years,1987 when we first went to the Supreme Court of British Columbia right to the end of it, right to the finish of December 11, 1997. And it did a lot of good it created a lot of changes we can do things now and in my work we still, we need some good lawyers, our own lawyers who can remain who they are because it changes you and if you're not careful it could change you within the first week of being introduced to it because it's very very different. But I wouldn't discourage anybody from going to law school I would say if you want to go, for obviously a good reason, otherwise you wouldn't go, I mean go. All the more power to you and I wish you all the success in the world because we need good people and just remember why you go and who you are and it takes work, conscience effort, to not cave in to what's that all about. Because I remember when I first got there they, the first thing they tell you is how special you are to be here because not everybody could come here. You're in the upper what two percentile of population in terms of your intellectual ability or smarts to be able to qualify to be here. Yeah, it's like they turn you into something different and you can buy it hook line and sinker and come out of there a different person. So, it's not a question of whether you go I think the question is why you go. So if you want to go, I'd encourage you to. |
| [6,73] Linc Kesler: I think we have our final question from the back. (audience member asks question, about 1-2minutes) The question referred to two dates, 1776 and 1876 as being stages in the evisceration of women's roles and Haudenosaunee society and the question was what stage are we at in the restoration that reverses that. |
| [6,74] Patricia Monture: Well, I don't know if you can do it in stages first of all make that second of all. There's no doubt in my mind that colonialism was a gendered strategy. You look at section 12 (1)(b) of the Indian Act and there's a reason why they focused on women and I don't think settlers understood how and why women had rights so I think we're moving forward we won't ever reclaim something that existed in a historical period because we've all changed over time so I don't think that goal is necessarily what the goal is because cultures evolve. Do I think that women still play a central role in all Indigenous societies, yes I do. To stop a think for a moment about the importance of your mother in your life and I think we just have to start acknowledging again it's often about what we forget what we stopped acknowledging the roles of women and actually the debts that we do that we all owe to women. So I see that there's some change I think you know we're coming back people are talking about it women are getting more assertive in some places it's better than in others so I think there's a movement afoot not sure if that's a full answer. |
| [6,75] Linc Kesler: Before I ask you to join me in thanking our speakers for tonight let me invite you to come back again next week. Next week we'll have Guujaaw from Haida nation and David Walkem who will be here helping us return to the issue of consultation and think through some of the further about some of the things mentioned tonight. And now please join me in thanking our speakers for tonight. (audience applause) |
|
Session #7 - March 8, 2005 Guest Speakers: Terri-Lynn Williams-Davidson, Guujaaw, Chief David Walkem |
| [7,1] Linc Kesler Good evening and welcome back to the seventh session in this year's First Nations Studies Internet Speaker Series. Before we go any further as always we would like to take a minute to acknowledge that we are all guests on the traditional territory of the Musqueam people and we have some elders and leaders from Musqueam with us tonight and we welcome them and appreciate their interest and attendance at the series. I also want to take a minute just to remind everyone that this year's series has been funded by a grant from the B.C. Ministry of Advanced Education and to let you know that that grant is, will be expiring soon with the end of this series and the reason that I'm mentioning that is that if you have found this series to be valuable we would really appreciate your feedback and if you think it is something that you would like support we'd appreciate you letting us know that by sending us an email or a letter to the address that you find on our website so that when we go to apply for the next grant and look for money to continue or bring you programming like this in the future we can point to your opinion of what this series has been like. I am sorry to start off with this little commercial note but it is a reality of our life. So, we appreciate your feedback and also your help in identifying future topics that we might explore in a series like this and also ways that we could improve the way the series works for you so please give us your feedback. |
| [7,2] Beginning tomorrow we will have a feedback form available on our website that will allow you to share your views and get it to us with a click of a button so if you go to the website tomorrow you will find a form there that will allow for that. And I guess I will add one final thing. This series as you know if being broadcast live on the internet and we welcome our internet viewers and it's also being archived there for your viewing in the future. We hope that it will also be available and useful for people mounting coursework at other institutions or next year or for use in communities that want to host their own discussion surrounding these issues. We're also making it available as a set of DVD's and they will a certain number of those will be made available for free to community groups and educational institutions and again when you fill out the survey on the website you can let us know if you are an organization that would like a free set of the DVD's. We are also making 25 sets of the DVD's available to, potentially to you if you fill in our survey when it's available and indicate that you would like to be considered for one of those we will have a drawing for the free sets and there will be others available as many as we can support for free but others at cost if necessary later on so if you would like to have this as an ongoing resource in your community or in your institution or for your personal use it'll be available in that form and more information on that later. |
| [7,3] But now, it's time to turn our attention to tonight's session and the really extraordinary panel of speakers that we have with us to help us turn again to some of the questions we began looking at a couple of weeks ago having to do with issues of consultation which has become a very important concept in land issues in B.C. over recent years and what it means and how economic development can proceed or be issue surrounding economic development and the use of land in First Nations communities and help us return to those issues and think about some other aspects in addition to the ones that we have already heard about. We have three speakers that we're very lucky to have with us tonight. From Haida Nation we have the President of Haida Nation, Guujaaw, with us. From EAGLE which is a legal research and advocacy organization we have Terri-Lynn Williams-Davidson who has been involved in the recent Haida case and others. And then to help us think about some of the other aspects of economic development in the same sector as some of the issue that come from the Haida case forestry we have David Walkem who's a Chief of the Cooks Ferry Band and who is also a professional forester and was in 2001 a forester of the year in B.C. so we're very lucky to have these people here to help us think about these issues and I think our first speaker will be Terri-Lynn is going to tell us a little bit about the legal issues and the background of the Haida case so join me in welcoming Terri-Lynn Williams-Davidson. |
| [7,4] Terri-Lynn Williams-Davidson: Thank you. I would also like to acknowledge the Musqueam people and the spirits of the land for allowing us to speak about our work and the First Nations Studies Program and the First Nations House of Learning thank you for this opportunity to share about our work. Yesterday I was at the legislature buildings and noticed a maxim if you will on the stained glass windows in that building and I thought they were appropriate to share with you tonight and those words were "without the economy none can be rich, with the economy none can be poor" and I was struck with that maxim and how that hasn't always been true for Aboriginal peoples in this province that with the economy we have not been a part of it for the large part of our history together here in British Columbia but that this is changing and that this case has had an impact in helping to open up the opportunities for Aboriginal peoples in the economy and in the protection of the environment. So I wanted to start and talk about Haida Gwaii and industrial forestry and what led us to bringing the challenge of tree farm license 39 over the last 10 years. |
| [7,5] Industrial logging of Haida Gwaii has long been a concern of Haida people both the rate of the logging the methods of the logging and the impacts of the logging and we brought these concerns to the provincial government and engaged in blockades in the 1980's when we couldn't achieve any negotiated solution to our concerns. The result was the Gwaii Haanas National Park Reserve the Haida protected area which we are jointly managing with the federal government a true co-management model in protecting Haida interests in an area which was once the subject of a large tree farm license. Over the years while that was just one part Haida Gwaii and that still left the heartland of Haida Gwaii the best wood was found in Haida Gwaii in the remaining land base and was the subject of tree farm license 39 held by MacMillan Bloedel and Weyerhaeuser so we still had concerns even after the creation of Gwaii Haanas about the industrial logging of Haida Gwaii and through the years the counsel of the Haida Nation created 14 Haida protected areas. Areas that we said were important to us to maintaining our culture and important for environmental reasons and important for historical reasons and through simply the power of people like Guujaaw those areas have remained protected to this day and have not been logged and are free from industrial logging. |
| [7,6] The rest of Haida Gwaii was then the subject of large tree farm licenses. Licenses that are replaced every five years they're very high cut levels and one of those licenses was held by MacMillan Bloedel, tree farm license 39, and again that was the heartland of Haida Gwaii and the best wood. In 1995, that license was up for replacement so every five years the same licenses replaced a rolling and perpetual license to log all of the trees on all of the land within that tree farm license. We tried to address the replacement of that license and the cut levels the unsustainable cut levels at treaty negotiations. The province refused to include that as a matter at the treaty negotiation tables they maintained that they had no duty to consider our interests at the replacement stage but rather we would be consulted and accommodated at the logging licenses, the cutting permit, the road building permit stage and what they call the operational level. Without any other alternative then we challenged that replacement in 1995 in the midst of all this the district manager for the Queen Charlotte forest district went from community to community and their objective was to try and gain access to the wood in Haida Gwaii and they told them that they had no wood left to cut on Haida Gwaii because there were 14 protected areas they couldn't get at and so they went to communities and told them this hoping that the communities would say well if we're going to be out of a job then let's cut those Haida protected areas. |
| [7,7] But also what they did show was that all of the jobs that came from that logging benefited mostly for the most part the Lower Mainland and not the local people on Haida Gwaii and so the local people and the Haida people then said that we would look at coming up with a solution for coming up against the wall for logging in Haida Gwaii and what was formed was the Islands Community Stability Initiative ("ICSI"). I think that's an important grounding part of this litigation was that the Haida had been working for a long time with the local communities, non-Haida communities, logging communities to reach consensus on what sort of logging will occur in Haida Gwaii. That group ICSI reached consensus that the cut on Haida Gwaii was double what was sustainable and they reached a consensus decision that the logging level should be halved at least at the interim until a long term cut could be determined. For the most part they reached consensus on removing most of the Haida protected areas from the area that would be logged by the various logging companies. So that's important to take to remember that we have this community building work happening as we're bringing this litigation. |
| [7,8] That case worked up to the various court levels and reached the BC Court of Appeal in 1997 and they released a decision and the basis of that initial legal challenge was the Minister did not have any authority to replace tree farm license 39 because the land was otherwise encumbered as the forestry the section of the Forestry Act said and we argued that those timber the timber with tree farm license 39 was encumbered by Aboriginal title and the court agreed with us. They said that yes this land was encumbered by Aboriginal title but when it was proven. A week later then we had the Delgamuukw decision and affirming that Aboriginal title existed in Canada and so we thought that this would be a change that it wouldn't be business as usual that we would be involved in the key decisions about how much was logged, where it was logged and the methods of logging. But as you know that didn't happen. The province said until you prove your title in court or prove your rights in court we're continuing to do what we want over the forestry resources and the lands in British Columbia. |
| [7,9] We then reframed our case in 2000. There was another replacement of tree farm license 39 we again said the Minister did not have any authority to replace tree farm license 39. Instead our challenge was not that specific section of the Forest Act but that when the Minister has noticed and acknowledged Haida title and rights that the Minister's fiduciary duty as Crown was engaged and if he did not consult and accommodate then he didn't have the authority to replace that license. Now we looked at the past 200 years and our evidence of asserting Haida title and asserting right and the importance of forest to Haida culture and we filed all of that evidence we filed all our detailed reviews of our forest development plans that the companies brought forward to Haida forestry. We showed our Statement of Intent in entering into the BC Treaty Commission process and Comprehensive Claims Process to say that this isn't something that the government has not been aware of. They know that the Haida people have claimed Haida Gwaii since time immemorial so you can't ignore it you can't pretend that it's something that you can deal with 20 years from now when the title litigation is concluded or when a treaty is negotiated. |
| [7,10] We also looked at the public nature of Haida culture. Everywhere throughout the provincial government's archives you'll find evidence showing the importance of the forest to Haida culture the long standing occupation of Haida Gwaii and basically our argument was you had to be deaf, dumb and blind to not know that Haida people who had occupied Haida Gwaii that forests were important to us and therefore how could you ignore us in the interim when you're making these big huge decisions about the forest on Haida Gwaii. Now I want to say here that that case we didn't seek a duty against industry or Weyerhaeuser that was not something that we had framed in our litigation. We also were not seeking a veto that was something that we were leaving to be brought in the overall title litigation when we were proving title to Haida Gwaii. In 2002 the BC Court of Appeal released two decisions agreeing with us that Crown has a duty they can't ignore us while they draw out the treaty process they need to consult and accommodate with us that's a clear duty on the part of Crown. |
| [7,11] In our litigation we were challenging the validity of tree farm license 39 we wanted it quashed because consultation and accommodation didn't occur that was a finding of fact. The court though was reluctant to do that they were concerned with the potential impacts on local community and the economy and so what they thought would be a fair way to balance all the interest was to give a duty on Weyerhaeuser a duty to consult and accommodate with Haida people. The Supreme Court of Canada overturned that duty on third parties and upheld in November that definitely the Crown, both federal and provincial, had duties to consult and accommodate Aboriginal peoples. It was interesting at the Supreme Court of Canada where the federal government said we don't have a duty the provincial government has a duty. The provincial government said we don't have a duty, federal government has a duty, both of them were pointing at the other one and the courts said no both levels of government had their duty to consult and accommodate. What the court held was that section 35 it should be a way to reach an honourable reconciliation process and that the Crown must act honourably and they cannot run roughshod over Aboriginal interests. You've probably heard that saying over the last couple of months as people have been talking about this decision. |
| [7,12] They grounded this duty to consult and accommodate in the prior occupation of British Columbia by Aboriginal peoples. When is this duty then engaged? It's engaged anytime the government has notice and knowledge of Aboriginal claims to title or rights. I would say that's throughout British Columbia the government has notice and knowledge of Aboriginal claims and title of rights. So when would that duty be engaged? What is the duty then if all of British Columbia if the government has a duty to consult and accommodate over all of the lands in British Columbia. The court agreed with the BC Court of Appeal and said that the duty depends upon the strength of the case. So if you have if you've framed a case and it may not be a strong case proving rights and title and if there's little potential for infringement of those rights then the duty is not as strong as it would be if we had brought a very strong case proving title and rights and if there was great potential for infringement of those rights that's where the court held the Haida were the strong end of the spectrum so we had a very strong case of title and rights very strong evidence showing the potential of infringement of those rights given the extent of logging on Haida Gwaii. So if we look at that spectrum then for the minimum type of consultation required the court held that that must be a meaningful process of consultation that there must be good information exchanged between the government and Aboriginal peoples and that the government must have the intention of substantially addressing Aboriginal concerns. It's not just calling out Aboriginal peoples and saying we're going to transfer this license what do you think and thanks for your concerns go ahead and replace the license but substantially addressing our concerns and that's the bare minimum of consultation required. |
| [7,13] At the other end of the spectrum the court held it's not a veto power and again that's not what we were seeking in this litigation that's something to be determined once we proved title and rights. But what's required when you're in the case of say where the Haida are with a strong case and high infringement then what the court said is formal participation in the decision making process in other words Haida people must be involved in the big decisions over logging in Haida Gwaii how much is available to be logged how much can be logged in the future and what are the methods of the logging. Now again I said that the court did not hold that there was a duty on Weyerhaeuser and the court said that the provincial and federal governments cannot delegate their duty to consult and accommodate on third parties. They made this decision because they recognized that both levels of government have a very strong tool to impose conditions on third parties to ensure that Aboriginal interests are protected before proof of title and negotiation of a treaty and that is the legislative authority changing legislation to ensure that Aboriginal interests are protected in the interim. The court decided to impose because the court provided this duty on third parties they decided not to overturn tree farm license 39. We would say now that duty isn't there and because of consultation and accommodation may not occur in the next few months that it's still open to us to challenge the validity of tree farm license 39 for lack of consultation and accommodation. |
| [7,14] We would uphold that Weyerhaeuser's tree farm license still suffers a fundamental legal defect in the absence of meaningful consultation and involving the Haida in the land and resource management decisions. I think that's really important in our case where substantial logging has already occurred on Haida Gwaii two thirds of the forests have already been logged on Haida Gwaii. Only ten percent of the truly monumental old growth cedar and old growth forest remain on Haida Gwaii. We've reached the point where we think no further large industrial still logging can occur logging must be based on protecting the whole spectrum and values of the forests and provide local benefits to local people. So just quickly say what I believe in my view are the implications of this decision. Once and for all we've heard through every court case gone forward that Aboriginal rights have been extinguished and there's no duty to consider them until rights are proven in court or negotiated in a treaty and the Supreme Court of Canada said no that you can't ignore Aboriginal interests in the interim prior to proof. They suggested that legislation needs to be amended because the province has in the last couple of years since the BC Court of Appeal decision totally revamped their forestry legislation and devolved all of the authority over the big decisions over what will be done in our forests to industry and we're saying we think is that authority must be taken back to the Crown so that they can fulfill their duty to consult and accommodate. |
| [7,15] For implications for the treaty process the court said that treaties should serve to recognize Aboriginal sovereignty that would mean what the court talked about is not coming to the treaty negotiation table with fixed positions with pre-determined positions about how much land will eventually be the subject of those treaties. You all know that the provincial government is promising that only five percent of the land base can be the subject of a treaty. Well you can't come with fixed positions you have to sit and actually work through a meaningful process of consultation and accommodation. Really important for the in the context of forestry legislation is the implications on where consultation occurs in the industrial development model and what the court said is the consultation must occur at the strategic planning level. So not after all the big decisions have been made how much trees have been taken who will be taking those trees how it will be logged that's where we need to be involved not at the cutting permit or road permit level where we're just looking at small little discreet areas over the land base. As well, there were a number of the court the government and Weyerhaeuser at every court level came to the court and said we've been doing a really good job of consultation and accommodation with the Haida. We've implemented five different measures that we think taken into account Haida interests and the court disagreed with them and said that that was not meaningful consultation and those were the province's attempt to protect culturally modified trees that wasn't sufficient consultation and accommodation providing cedar through the freeze permit system which in Haida Gwaii was only one percent of the total cut level that wasn't sufficient. |
| [7,16] Protecting cedar seedlings from deer browsing because that's a big problem in Haida Gwaii, implementing new logging methods the variable retention that Weyerhaeuser said was providing greater protection to Haida interests and also deferring logging in Haida protected areas wasn't sufficient. So all of those different measures taken together still was not significant enough to constitute meaningful consultation. So, it's a big shift in how we look at forestry management in my view how it should go in the next coming years. And the most important aspect of this decision in my view is that the courts saying that this needs to happen is protection of Aboriginal interests in the interim. It's not about finally looking at involving Aboriginal peoples when treaties are negotiated or when litigation has concluded but protecting those interests in the interim so we actually have something to negotiate in treaties or in other negotiations. We've seen the impact of this case in recent decisions where First Nations have been protecting their interests prior to proof in the Gitanyow case, Xwémalhkwu case with fish farms and the most recent Musqueam decision yesterday so that's good news for Aboriginal peoples. So I just want to conclude and say that this case is not about that maxim at the parliament buildings that I talked about at the beginning, it's not about who will be rich in this province but about what are we protecting to leave a legacy for our future generations so that we have abundance of wealth well into the future for future generations and it's about finding a sustainable future for all of us all of us sitting down and working together to find that path for the future. Thank you. |
| [7,17] Linc Kesler Okay the servicing of the equipment is complete and we're back and ready to go and I think Guujaaw is our next speaker. |
| [7,18] Guujaaw: I'd like to start off by congratulating the Musqueam people for beating UBC in the province of BC in the court decision. It's pretty almost strange when you're in these court cases realizing that you have to be arguing these things. You think that it's a logical solution that it's your land and you know what are you doing in here with somebody like UBC who should be enlightened and educated and all that to know better. But anyway thanks to UBC for inviting us here. Education doesn't make you smart nor does courts and rulings make you any better of a position usually and it's when there's decisions like this it's a combination of politics and law that has to work together in order to have anything implemented as we know when the Delgamuukw decision came down and a number of other ones where consultation was quite clearly called for by the courts and the courts have been urging the provincial government to sit down and try to settle this thing up in a decent manner for the last 20 or 30 years now. |
| [7,19] In every instance they fall back to the lowest common denominator of where they can of their approach to us. The court was quite clear in the Supreme Court where they described the provincial view of honour as an impoverished view of honour which is quite fitting for what they've done. In the cases of consultation shortly after those rulings were made they would come up with something called consultation process and so they sent us the information to give us a certain amount of time to respond with and thank us very much and then go ahead and do what they were going to do. In the case of forestry issues it's similar we've been dealing with all that fighting them to come up with reasons why they log and most often they would attempt to log however at the same time where we ignore the courts and take a stand then generally we're able to succeed so but the most interesting thing has happened and Terri-Lynn just touched on it was that since these rulings and in the last four years the provincial government has dumped so much of its responsibility that it sits there now as the weakest government that we've ever seen in its ability to deal with the forest industry there's no ability for a district manager to do anything. He has no discretion to make any kind of determinations on the ground he just has to follow certain criteria, make the approvals and he's done with it. |
| [7,20] The Minister of Forestry who had the ability to veto a sale of a tree farm license gave away that authority so now the industry can do with it as they please. So, we seen the result of that just recently up in northern side of Vancouver Island where an American company came up bought a mill and some tenures and then ended up leaving declared bankruptcy and left with all the pension funds of the workers who had been there for years and years. So, basically no control is left on them in the case of the environment they're basically regulating themselves and not this past Friday but the Friday before they did an Order in council dropping the need for water shed assessments on rivers all over the coast salmon bearing rivers and left up to the forest industry to determine which ones are sensitive and if they sent a note that notification that was acceptable to them and they're fine for any mitigative measures that don't affect the forest industry the timber supply. So as the courts recognize and even are scolding this government they're still going further away they're not coming to us and saying okay let's sit down as and just fairly talk this out and figure out what's going to happen and amongst our people as any other people we have the full spectrum of people from the red-necks to the green-necks and everything in between and when we talk about issues it does cover the whole spectrum and so you know in balance we do say yes there has to be protection of our lands there has to be the ability to our next generation to catch fish you can't sit around and have fishing rights if there's no fish out there. You can't have rights to hunt if there's not game. |
| [7,21] So, you know the need to protect fish and that really is what governance is. We're not as a people we're not going to the provincial or federal government saying we want to negotiate governance with them because really that's not their business it's our business. It's up to our own ambition and our own abilities to where we should be in ambition I mean in management. But we also have responsibilities to the land and responsibilities to the next generations that come with that governance. So we believe that there could be thriving economy on our lands and as well as the protection and we have convinced the people that live along side of us that that can be done they know that if things go on as it is they're all going to be wiped out this government has no and I'm not just saying this government as the Liberals versus NDP's the NDP's were just as bad when they were in power. But anyway they have no problem shutting down a community of 500 or a 1000 people that's not many voting bodies in they're not too concerned about it and it's happening all over the province. So I took Terri-Lynn here because I'm not you know really good at making speeches but I'm good at arguing with people. You know I'll answer any kind of questions but you know you guys don't look like you want to argue so anyways there goes my phone, (his cell phone starts ringing). It must be my cue to quit. So over to you my friend. (applause) |
| [7,22] David Walkem I would also like to acknowledge the Musqueam territory that we're on and also the presence of Delbert Guerin who's a very good friend and colleague of my late father Forest Walkem who spent a lot of years at the Union of BC Indian Chiefs and basically setting the groundwork for a lot of what we're doing today. I think what I'm here to talk about tonight is innovative forest partnerships. I've done since about 1996 -97 I've been working in the Merritt forest district around Merritt-Princeton area with government industry and First Nations and we were brought together by part of the Forest Act called the Innovative Forest Practices section and it was a pilot project set up in 1997 and what we've attempted to do on a number of levels is to put into action some of the concepts that Terri-Lynn and the courts have put have brought forward but without actually going to court. |
| [7,23] We've set up a society that involves five industry players, 8 First Nations and the local forest service to deal with co-management of the land and then we set up a forest company Stuwix Resources Joint Venture amongst eight bands to try to take advantage of the economic opportunities that came out of this Innovative Forest Practices. So what I, I think what the experience that I've learned unfortunately some of it is pretty hard learning is that there are basically four elements for successful partnerships whether they're between governments or industry or even amongst the bands themselves. First of all you've got to be able to create an environment for success and each player in that has a responsibility toward creating that environment. Secondly you need people that need to think beyond their own interests in terms of having a greater vision for what they're trying to accomplish on the land and thirdly the process in order to be successful at either level has to be seen and has to actually be fair and equitable in order to be successful and lastly we need results coming out of each level that are desired by everyone that is participating. |
| [7,24] So our attempt came out of the government setting a pilot project to test this concept of innovative forest practices and essentially all that was a mechanism for forest industry to be able to conduct so called innovative forest practices that would result in an increased allowable cut uplift and then they would be able to get that allowable cut directly awarded to their licenses. So the government set the rules and they all they said was we're setting this carrot out there this allowable cut carrot but we want the industry licensee the major licensees and you had to have a replaceable forest license under this legislation and up until even today there's only I think three replaceable forest licenses held by First Nations. One is the timber farm license held by the Ehatteshaht Timber and the I think it's the Ehatteshaht band is involved in one on the island that was one of the original ones. But they put that carrot out there and they said industry you have to work with First Nations we're not going to tell you how to do it but if in order for you to be successful you have to involve them. The end result was that industry, eight First Nations and the local forest service ended up setting up a society called the Nicola-Similkameen Innovative Forestry Practices Society and that was to do two things. One is to develop up the forestry plan that would guide the and define the innovative forest practices that would happen on the land that would be eligible for this allowable cut (word?) and secondly to determine what the budget and approve the budget for that. |
| [7,25] Now we set that society up as a 100% consensus decision making. We didn't we couldn't have every band and every industry and every stakeholder at the table so we agreed to set up a society whereby we had representatives at the table but every one of them essentially had a veto. So we all had to agree or we couldn't get along or couldn't move forward I should say. That proved to be interesting getting set up but we ended up setting it up after about I think it was about two and a half years of hard negotiations and part of that negotiation coming came out as how do did the First Nations how are we able to get the karat allowable cut. The only way that we could get it was that one of the industry players used part of the Forest Act that allowed them to subdivide off a section of their forest license and transfer it over to us so they subdivided off a 1000 cubic metres off their forest license and they were the smallest licensee in the district Ardew Wood Forest Products and transferred that over to us and the government in its wisdom and under the Forest Act at the time took 50 cubic metres off a truck load of wood off it because that was the 5% take back. So we ended up getting the smallest replaceable forest license in the province of 950 cubic metres per year in 2000. It then took us four years of research and analysis and defining what the innovative forest practices were to be able to come up with a proposal or an application to the government to get an allowable cut. We were successful in January 1, 2004 of getting an uplift of 330,000 cubic metres over the whole district and within the society we had negotiated a share agreement with the government and licensees whereby the First Nations company and ended up being Stuwix resources would get 50% of whatever of the uplift benefit that came out of that. |
| [7,26] So that was at one level we were dealing with all of the players at a co-management level on the land base and then on a second level we had challenges within the First Nations trying to get eight bands to work together in a collective where they had never worked together before about five or six of us had worked together on a number of different projects over the years but all eight had never ever worked together and that proved to be interesting in terms of setting that up. We got it set up last year just as we got the allowable cut increase but we got hit by the bark beetle absolutely over supply of pine in the interior and most of the wood in our area is pine and also a stumpage system that is geared to taking value from lumber that the mills have because most of tenures are held by the mills in the province and so when you have a high lumber price and a low log price if you're a market logger like our company was or is then we get into an uneconomical situation. So that proved to be challenging but I think overall what was successful is that from a band's standpoint in getting our company established we at first we needed chiefs and councilors at the table negotiating to get the license transfer to get the share agreement in place to get the respect of the government and industry. But now that we've moved to the next stage our challenge is trying to separate politics and business. So part of that success in terms of the people we've had to work at changing our expertise at the table. |
| [7,27] The last part of it would be what did we want to accomplish out of this? We tried to accomplish a co-management of the land between government industry and First Nations we established a society that would allow us to do that on a forestry basis and we've had challenges with a change in government with changes in industry changes of people around the table from industry and changes in our governments. We're still moving forward but it's it has proven to be challenging. The within our own system here we've had problems of conflict resolution trying to get eight bands working together to that have never worked together before has proven to be challenging because everybody is used to doing their own thing and we've had to learn and work and bring in experts to help us overcome these and resolve our internal conflicts. From for the future I think that in terms of defining the environment for success the government has a responsibility in terms of setting the stage for First Nations and industry to get together and resolve our issues and I think from what we've done in the Merritt area that can be done but there has to be a will on both industry, government and First Nations to make it happen. |
| [7,28] In terms of making it happen you have to have the people in place both in political and now in business in order to get the benefits and to make the co-management happen on the land we have to have our expertise in place and they have to be acknowledged by both government industry and ourselves and in some cases acknowledging our own experts has proven to be challenging. The process has to be fair and equitable and some of our biggest challenges has been around what is the definition of fair and equitable? Industry and First Nations and government see differences in what's fair. When we first started this industry thought 5% of the allowable cut was fair for First Nations. They went all the way up to 15%. We thought fair was 100% of any new volume we ended up working together to come to a compromise of 50% of new opportunities. It still isn't dealing with the bigger issue of we're talking about 300,000 cubic metres in 1.8 million cubic metres of cut in the whole area but it's a stepping stone to where we want to go. The results have to be desired by everybody or they have to have results that they want in the end result coming out of it. First Nations we ended up getting an opportunity for an economic development but more importantly we set up a system whereby we could get our cultural values in to the management processes before they get to the cutting permit stage and the road development stage. We're still working on that but the mechanism is still there for us to do it. |
| [7,29] Industry was looking for what they call certain I don't know whether they will ever get to the level of what they want but I believe they've had more of it in this process than without it. We haven't had to resort to any of our own logging such as the Shuswap and Okanagan have done. Hopefully we won't have to and ourselves or the government pardon me was looking for what they called certainty. I still don't understand what they mean by certainty because their definition doesn't deal with us and until it does they will never get that certainty but I believe in terms of what we tried to do in the Merritt area was to establish a process where we could create this innovation which is called talking to one another it's amazing that would have to be the biggest innovation we had was forming a mechanism to talk to one another but if we're in a process that's fair and equitable with mutual respect I believe that we can come up with the mechanisms to allow for honourable and meaningful co-management on the land base which is what we were looking for from our communities. So with that I would like to thank you for the opportunity and thank UBC for the opportunity to speak tonight. (applause) |
| [7,30] Linc Kesler So we're back with our technical people and we're ready for some questions and Mr. Guerin from the front row has a question for our speakers. |
| [7,31] (audience member asks a question) I guess I should just mention to our speakers that because people on the internet can only hear what gets said into a microphone that our practice is that I try to summarize the question before you answer it and Delbert of course has presented me with a very substantial challenge in doing that. But I think the core of the question was that a lot of legal cases particularly the ones that Musqueam is involved in the government is calling for the finding of artifacts to show traditional habitation in the territory and this represents in some respects an unreasonable standard and I think the question was being placed to Terri-Lynn for comment. |
| [7,32] Terri-Lynn Williams-Davidson: I would say that we know that it's not just our presence on the land especially given that we tread lightly on the land and our use of the land and there's very few places where we can show evidence of the use of the land by our ancestors. One way we did it in the case was through the culturally modified trees. Most of British Columbia there haven't been a lot of archeology studies done so that isn't helping us along that way in they are very expensive to do but the important part of the proof of title in Canadian law is not just occupation of the land but use of the land and part of how we show that in court in our job is to bring in the systems of laws as we had as Aboriginal peoples for using and occupying the lands so we would bring in our traditional way of viewing the land how we regulated the land and extent of use of the land and that is really the focus we take in our work is trying to bring to life our traditional management principles to try to give greater teeth to the laws in Canada which don't adequately protect the land in our interests. |
| [7,33] Guujaaw: So anyway we finished up that tree farm license case but we're still going in on a bigger case and its title to our whole land and we expect that very argument to be made. So the case that we're going in isn't simply to prove title which is written into the law and also the means by which you prove it you know what the test is there and fairly simple for us to meet all those tests but however we're going a little further by saying that neither the Canadian government or the British Columbia government or the British before them had any lawful authority to claim those lands and so therefore every tenure and every lease and license they issued is unlawful. So they'll be arguing in court that you know you've got a watershed then there's a smokehouse down by the watershed they'll say well you know well we'll put a little line around that's your use but however that smokehouse was there because there was fish swimming by it that they were catching and that fish was able to go up because of the whole watershed that created that creek and habitat for that and I think one of our vice president (word?) Charlie Bellis said that described salmon as creatures of the forest you know because they're born there and that's where they die in the end and it's a whole different way of looking at things but that is the argument that they'll use you know like what's the evidence. Go throw a ring out in the yard and say what's your evidence or proof of title and it gets pretty darn hard to prove it if you're playing that game but we're not playing it. |
| [7,34] Linc Kesler: There is some irony in that your people can occupy this land for centuries and centuries and centuries and not leave evidence and industrial society come in for 100 years and leave evidence that will be here way longer than it ought to be but that's the world we live in. Another question in the back? (audience member asks question) |
| [7,35] The question was what advice, this is for Guujaaw, what advice would he give to elementary students? |
| [7,36] Guujaaw: Elementary students are people like us you know they just happen to be a little smaller and younger and that's all. So I think like us old guys you know the kids also have responsibilities to find out what the grown ups are doing to the land and to speak up when they see something that's going wrong. Certainly it's going the things that we do they are the things that the elementary kids are going to have to live with and even if you look at if I start telling you you'll become cynical I don't want you to get cynical too early in your life but there's a lot of things that you should be watching what your government does in regard to the land and make sure that write letters to them tell them look after the land don't spoil it. Anywhere you look across the country you know it's not so easy in the city everything looks manicured but when you get out further all the wealth comes from the lands further from the city and there's less people there to put up a fuss and so they don't mind spoiling those lands so just keep an eye on them and speak up. Get your friends to speak up. |
| [7,37] Linc Kesler (audience member asks question) The question had some specific parts to it but I think in general was whether changes in the government had in fact produced no real differences in the forest sector. |
| [7,38] Guujaaw: How the government seem to get progressively worse it doesn't seem to matter what stripes they put on but even with the forest practices code it was put in place it was a good idea to really to get out of some pretty heavy criticism. People were paying attention they came up with a code which was actually sounded pretty good they waved it around and said look we're okay don't boycott us don't condemn us for our forest practices but on the ground things hadn't actually changed that much and over the years we taught pretty well every company through different ways whether it was ombudsmen or forest practices code we caught them cheating on inventory, on scaling we caught them cheating on you know cutting seabird nesting areas, cutting archeological forests basically ripped off this province for probably billions of dollars in the last couple of decades and all under the watchful eye of the successive governments and so the most peculiar thing is that they've turned around in this last term and given them basically the last bits of authority that they didn't control. You know I wouldn't say that under the management of the provincial government that it was good but now they don't have any control over them. So it's pretty unusual situation I don't know of any government who would just give up keep giving up authority like that. |
| [7,39] Linc Kesler Another question in the front here, okay, Marjorie. This question follows up on the previous one and with specific reference to the current the recent Musqueam case and the question is the government in fact trying to divest itself of all its interest in the land so that they're available for private industry use and comment from the panel. |
| [7,40] Guujaaw: Well you know that's a pattern it's not just in forestry. It's pretty clear what they're trying to do. If you look at what they would consider vacant Crown land which doesn't do them any good in the economy so if they could lease it, sell it, you know put it into a position where it's making some money they think in theory that would be better. So even the parks are there are those things that have been leaked out recently that they want to lease out to lodges and things within the parks. So interesting theory, I mean, it probably makes sense if that's your only interest is money and you know from (word?) Terri-Lynn over there and that seems to be the primary purpose of that government. |
| [7,41] David Walkem: One of the things that we've found what we were attempting to do in Merritt area was in their consultation process the statutory decision makers have to make these decisions on whether or not Aboriginal right is significant or not. One of the things that's clear everywhere you go is that we don't have enough information about the Aboriginal right itself or the interest themselves so what we are setting up the systems to enable us to collect and collate this information to make it more accessible both to the bands who are responding to these questions and also to better educate these decision makers. But one of the things the government started to do and almost immediately stopped was fund these so called traditional use studies because in my mind they were finding out that we're actually getting information that's contrary to what they want to do so they stopped funding it and yet that's the basis for us participating in co-management on the land. We need to have our information taken from its oral form and put into the new digital forms so that we can pass it on to the elementary students who don't who know digital better than I ever will. But that's one of the problems that we have is this information sharing especially when it comes to the government's decision maker. |
| [7,42] Terri-Lynn Williams-Davidson: I also wanted to acknowledge that I know the Musqueam celebrated 20 years since the Guerin decision and the arguments that the federal and provincial government made are probably not much different in the Guerin case and what they're making today. So I view this whole history of the government's resisting to have any duty or obligation to Aboriginal peoples until we prove our title in court or negotiated treaty we finally pinned a duty on them and they say okay well we have a duty let's turn that over to industry so we don't have, we have an empty duty. So it's all part of the whole history of colonization I think in Canada. |
| [7,43] Linc Kesler: The question was in the absence of rules and regulation governing land use what can people in the communities do in the future to effect change that has substance to it. |
| [7,44] Guujaaw: What's interesting is that provincial governments keep making rules that kind of box themselves in deliberately where they say well there's nothing else we can do except replace this license nothing else we can do except approve this cutting plan nothing else we can do all the way across the board and so when First Nations or other people sit down with them a part of a requirement in these agreements that they put forward is that you cannot fetter the Minister's authority and that sort of thing. So anyway fetter is a new word for me in that it means to block their authority but you know meanwhile they're giving away that authority so anyway when if you play these games you know the treaty process the land planning things most of it is a trap to tie us up in processes that would keep us from doing direct action which is by far more effective than playing those games. They have managed to keep everybody I don't know how long that treaty process has been going on but there has been very little games made by it and a lot of frustration but yet the process kind of starts consuming our own leaders as they get stuck in it. |
| [7,45] Because we're not big beneficiaries of these money that are coming in we're able to take these stands and when we went into court on the tree farm license case just days before they came to us and said look we'll give you $3 million a year if you don't go in. We went in, we won, they came back and while their position with people at the treaty process has been a cap of 5% you go right to the end of the process that's the best you can expect. They came to us and said okay folks here's 20% you take it or leave it and we'll give you three months to think about it. You know our people said told them to bugger off. Anyway so the result of that was a lot of people got yanked off the treaty table by their own people saying what are you doing negotiating 5% when the Haidas are rejecting 20%. So every one of these things you know they have games to play with all of us but we could fetter them and I think the best term that we come up with is we can darn fetter them! |
| [7,46] Linc Kesler: The question was I'm not sure if I got it perhaps you heard better than I but it was about post-secondary education. |
| [7,47] David Walkem: You were asking whether we partnered with any post-secondary institution to deal with capacity within our communities. Actually, the Nicola Valley Institute of Technology was set up by a number of our communities over 20 years ago and through that we have a great number of people with forestry technical expertise unfortunately before 1999 all of our harvesting expertise and logging expertise couldn't find work at home. We had no Native loggers in the whole timber supply area working with any of the five major companies. What we were able to do and forestry has been part of our mainstay of our economy from the 30's and 40's on up right up until the 60's when the government changed the giving out of licenses and started consolidating them into major ones. Forestry in the railroad in our area and cattle were the biggest employers. So we've had a lot of people with expertise but they've never been able to work at home. So no we did not have to go out and go to an institution in particular we had developed up the capacity over the years in our community so we are very fortunate in that respect. Linc Kesler: There's people pointing over here so yes. Okay. |
| [7,48] Guujaaw: If that is their decision to put them on there then it doesn't infringe at all if that's their decision. If somebody else imposed somebody into their process then it's not right. I mean if it's their land and it's their council they could bring in whoever they want I suppose. Linc Kesler: The question was about the inclusion of a non-Native member on a council Inuit council in Labrador. |
| [7,49] Linc Kesler: Another question. The question is about Native businesses and Native participation in the interior and whether there's a directory for wood products and I guess that would be a good question for David. |
| [7,50] David Walkem: There is a fledgling organization called the Aboriginal Forest Industry Council. They have an office and phone number in Vancouver here. But in terms of Department of Indian Affairs may have done some studies in terms of who's doing what. I think on national forestry I can't remember its name now but out of Ottawa there's a Native national forest association that has catalogued various First Nations that are involved in forestry. But from our own personal experience like in another joint venture, I'm involved in three different joint ventures with my band, one of them we have a log home building company and another one we were actually building cedar birdfeeders. The value added markets are tough to deal with both at the best of times and the challenges of selling out of the interior into a world market are immense especially when you are competing against Chinese or Indonesian or the other Indians imports where they can deliver stuff to our shores that we can't even compete with those kinds of prices. |
| [7,51] So in terms of are there a lot of value added manufacturers out there no from a First Nations standpoint the expertise isn't there. It wasn't 10 years ago I was sitting on a provincial council that were arguing over whether or not First Nations should be able or could manage 10,000 cubic metres of wood. The government at the time and the industry at the time didn't feel that we had any expertise to do that and there were only three bands in the province I think that had any sizeable tenure. It wasn't until about 1996 when the government brought out these new creations called non-replaceable forest licenses and I think they only did that for First Nations because up until that point every forest license they gave out was replaceable forever. But when they finally started directing tenures or resources towards First Nations it had to be non-replaceable. So there hasn't been a lot of involvement on that level of manufacturing in our communities because we haven't had access to the resources for very long. |
| [7,52] Linc Kesler: We have time for maybe two more questions so...way at the back okay would any of our speakers like to respond. |
| [7,53] Guujaaw: I don't disagree with anything that he's saying and in fact I concur with most of it. However if you're going to go to the United Nations there's a one of the early requirements is that you exhaust all the potential remedies that are available to you at hand the courts being one of them the negotiations being another. There are real problems with the processes laid out in front of us has the treaty process and these other things that they do trap our leaders in to talking you know indefinitely with really no hope of a solution and it's a problem and it is leading to the demise of our lands and as the lands go so do our cultures. So I do agree with the statements of my friend back there. One more part is that the United Nations isn't necessarily going to be a solution either. They've got there's 25,000 cases of AIDS in Africa that they can hardly get a handle on that and they've got wars that are happening around the world and people dying of starvation and a lot of other problems that they've got to deal with. Our problems are pretty severe but in the scale of things that are going on you know we're not getting shot in the streets you know and I think the only reason is that we're not standing up as perhaps as strongly as we should be. |
| [7,54] David Walkem: I can agree with your sentiment there. I mean, I am (name?) we're one of only I think two nations in the province that has no communities in the BC Treaty Commission process. But one of the things that has guided me through my elders' teaching is I also come from Spence's Bridge where the allied tribes of BC met in the early 1900's and they put a lot of memorials down and statements of what they wanted to see done and some of those statements in there that my ancestors put in there was they felt that they needed to share with the newcomers. They weren't trying to kick anybody out and one of the ways that I'm trying to incorporate that is the work that we're trying to do in Merritt to be able to incorporate our values to put them into the system that's making the laws and get the laws changed that way because that I believe is the way to go in terms of changing how our rights and title and values are dealt with on the land base |
| [7,55] is that we educate them and we take our elders and ancestors' teachings and make them effective on the land and things we do on a day to day basis and that's a challenge for us because we are dealing with a system that doesn't respect or acknowledge that we exist. There is no place on earth that I understand other than here where we're not respected for being here we have to prove that we were here before. If it was oil and we were Arabs we would probably be getting a really good livelihood out of this right now. So I believe that you have to get our values out there and working on the land in order to get the value changes we need because we're losing it with our with every elder that passes away and every young person that doesn't get that teaching. So we're on a kind of race against time here to be able to get that information and get it used on the land again. |
| [7,56] Linc Kesler: One more question.The question was directed towards David and it was about the definition in the co-management agreement about innovative forestry is being a larger allowable cut and whether the kind of cultural values that David just spoke on were considered as part of that agreement and might have resulted in some point of evaluation which produces a lower cut for instance. |
| [7,57] David Walkem: The actually definition of innovative wasn't that it increased it was left open for us to define practices that could increase allowable cuts while still respecting our use of the lands so it wasn't a direct one on one and we are in a different situation than what I understand in my one visit to Haida Gwaii and from what I've heard tonight is that we aren't as badly over cut in the area and a lot of our timber areas the old growth is two hundred years old and then bugs or fire takes it out for most of the pine forests. But our communities our elders we went into this knowing full well that we could be restricting ourselves but our goal was to get our values put into the land management decisions so that if it's going to take seven generations to do this then we have to be prepared to do that and we are prepared to do that and I think that the test is coming with this bark beetle epidemic because it's hitting us now and how are we going to be able to manage those cuts into the future there will be decreases but I guess the short answer is yes we expected there to be a decrease. But we also expected it to be overall not just a little portion that we're talking on which is less than a third of actual harvest that's out there. |
| [7,58] Linc Kesler: Before asking you to join me in thanking our speakers for tonight, I'm sorry there's another comment. The question was about the relationship between environmentalist movements and First Nations land use. |
| [7,59] Guujaaw: Well what we did is we made protocols with anybody who was interested in talking about our land and first of all that they're not going to be advocating anything without our consent and in I think it was probably about 15 years ago the conservationists made a target of 12% of the province while on our land we got 50% in protected old growth and it goes far beyond anything any environmental groups had ever expected. I know that in other places that there was trouble where people would come in and taking some portions of a community and ended up taking action or doing something which actually split up communities so it's pretty important that those people be respective of the people and try to you know they shouldn't be going in just saying save this or save that and expect it to come about that's really up to the people of the region but you know we need support for our fight certainly. We know with what we're up against saying if you had oil goodness if they had oil they would have called us the Hell Haida and come and bombed us a long time ago I think. |
| [7,60] David Walkem: Watch pole pine trees and cactus aren't as sexy as cedar trees and moss so we haven't had the innovation of Greenpeace. In our experience, limited experience with them, they have to understand that we're part of the land and conserving just for a post card effect isn't what we're about it's dealing with our relationship with the land, the total land and there are certain areas that are important to us from spiritual or gathering sites but just an idea of conserving for conservation sake isn't necessarily something that...we have to be a part of the land and one of the first areas that was set up in the interior for one of these environmental or ecological protection areas is just behind my back door and they you know in the 70's a conservationist come out there and tack some signs on a tree one day and my father and my uncle were out there saying well what's going on and they're saying well this is not protected you can't come in here you can't hunt you can't have your cattle in here. I laughed at them you know how could anybody do that? And I'm talking to the people that are actually living on that land who are part of that land. So I think there are joint objectives but they can't overshadow the fact that we are part of that land and our livelihood comes off that land also. |
| [7,61] Guujaaw: Just to add to that because that's a pretty important point and Gwaii Haanas we absolutely told the Minister who wanted to make a deal with us we already had a land designation. Their designation would be totally separate from ours if they were going to make one and we told them that if we don't have an agreement we're not going to let you put up one outhouse and by that point we were controlling every major site down there and they were quite anxious to get there so there was two separate designations and there's a real stickler part of it was our rights in the region. But how it stands right now we have the right to hunt, fish, trap, build houses, cut trees, whatever we want whatever our people have traditionally done in the region and we conceded to certain things like you know like commercial buildings and that's all. So I think that was the first one that has ever done in that way and that was kind of a breakthrough in the ability to protect even greater pieces of land where the rights hadn't been effected and we had people coming up from French and Australia, New Zealand and even Chinese had come to see how our agreement at work and it seemed just logical but yet in practical application there's absolutely no conflict between conservation and protection of the land. I mean conservation and use of the land or the traditional use of the land. |
| [7,62] Linc Kesler: Before asking you to join me in thanking our speakers I want to invite you to come back next week for the final session in this series and I encourage you again to give us your feedback online or by letter or any way you choose and let us know what you have thought of this series and whether it has been of value to you because we'll be going on to look to do something again and with your guidance it'll be the right thing. So let us know what you're thinking and now please join me in thanking our speakers for sharing their time with us, their experience, their wisdom, their judgment and thank you for your questions they were great questions tonight. Please join me in thanking our speakers. |
|
Session #8 - February 1, 2005 Guest Speakers: Wendy Grant-John, Terri Brown, Gordon Loverin |
| [8,1] Linc Kesler: Good evening and welcome back to our eighth and final session in the First Nations Studies Internet Speaker Series. My name is Linc Kesler I'm the Director of First Nations Studies here at UBC and tonight as always I would like to begin by acknowledging that we are all guests on the traditional territory of the Musqueam people and we have some elders from Musqueam here and others and we appreciate very much their hosting our event. This series has been going now for seven sessions and we're in our eighth session. This is our final session. |
| [8,2] This speaker series and making it available on the internet and archiving it is all happening as a pilot project somewhat of an experiment to see if this is a good way to bring information to people and to make it available for later use issues that are important to Aboriginal people. We have been funded this year by the B.C. Ministry of Advanced Education. If you think that this has been a valuable thing to do and something that we should continue to do in the future we will be in the process of seeking further funding for it. For those reasons we would really appreciate your feedback and you letting us know what in your experience in this series has been valuable and what needs improvement and whether we should make this a priority for seeking further funding and doing extensions of the series. There are a couple of ways that you can give us that feedback. |
| [8,3] If you're here tonight in the hall there are forms available for you they are spread around on the chairs you can take them and fill them out and return them in before you leave that would be much appreciated. If you're joining us online you can go on our website where there is a feedback form a survey that will give you a way to give your views on the way that the series has progressed and what you value in it and what you think needs improvement and we would really appreciate you taking the time to do that. If you happen to be watching this series from another location and it is an educational institution and this kind of series is you think might be valuable to you for your curricular purposes we are particularly interested in talking with you further so please send us a note, give us a call, fill out the survey, let us know what you're thinking. I think that's it for most of our mechanical matters tonight. |
| [8,4] Now, it's my pleasure to tell you a little bit about tonight's session and the speakers who will be joining us. This is our eighth and final session. I've said that three times now. One thing we were looking for in this session is for a kind of overview of some of the concerns that we've and issues that we've had brought to our attention throughout the series. From someone who's had long experience with all of these issues from a variety of viewpoints and can point us in a direction that developments may continue in the future and we're extremely fortunate tonight to have Wendy John from the Musqueam Indian band here to talk with us and help us understand these things better and give us a sense of where she thinks we're going. |
| [8,5] Wendy has long experience in government and the administration of her band and cultural restoration projects and she is currently working on the renewal efforts of the AFN. So we're very happy that she has the time to take from her schedule to join us and give us her perspective on these matters tonight. In thinking through the progress of our series and going back to the very first session one of the things from our perspective as organizers that we wanted everyone to understand as clearly as possible from the outset is that even though we've been extraordinarily fortunate in having people give us their time and give us the benefit of their thoughts people who have long experience in all of these issues there is no way in eight weeks that we can represent every viewpoint on every issue. People differ throughout communities and different communities have different approaches to problems and we've heard many different viewpoints throughout this series but we know that we cannot possibly hope to give a voice to every viewpoint. |
| [8,6] We have had people during this series refer to a couple of things that are perhaps particularly noteworthy. One of them is the role of elders and traditional teachers within communities who typically may not take as active a part in political processes as others and therefore may not be heard as directly in all political processes. The other is that there are frequently occasions when political processes happen in which other people that their voices are not necessarily being heard. We know historically that in many instances the voices of people speaking outside of a process have been important whether one agrees with positions taken or not that they have been a part of history and part of what has shaped process of many locations. |
| [8,7] As most of you are probably aware for the last two months there has been an act of civil disobedience taking place in a community in northern B.C., Tahltan community where elders and others have occupied a band office for an extended period to bring attention to a set of issues that they consider important. We're very concerned that the idea of what people do when they do not feel that their perspectives are getting attention within a process due to bring them attention outside of a process because to understand that is to understand an important aspect of the way all political processes work. |
| [8,8] For that reason we have invited Terri Brown who is a spokesperson for the group of elders occupying the band office to be with us and give us some perspective on why people choose to step out of a political process and voice their concerns in a different way. We are also concerned of course that this is an ongoing situation now in a community and as such we must treat it with care and respect. It's important to understand that the things we have been talking about sometimes in the perspective of history have a reality on the ground to people everyday and communities and this is an instance where there's a political process taking place that heightens our awareness of that fact. |
| [8,9] We have a second speaker joining us as well from the Tahltan community representing the position of Chief Gerry Asp and that's Gordon Loverin whose traditional name is Yanna Tan and he will be our third speaker on tonight's panel. So I think we have a very interesting evening ahead of us and I ask you to join me in welcoming our three speakers. Each of our speakers tonight will be speaking for about 20 minutes, Wendy John, will be our first speaker as this has been our custom in accommodating the technical requirements of our sessions we'll be taking a short break between speakers just to be sure that our technical people have done the things that they need to do to continue with the recording of the event. So first, Wendy John. |
| [8,10] Wendy John: Thank you very much. Good evening everyone. My name is Wendy John I have lived my 56 years in the Musqueam village that is three minutes down this road. I want to start this evening by telling you how honoured and humbled I am to have been asked to be a speaker in this series. Knowing the people that you've had previously I was a little intimidating after listening to you opening comments saying that you were expecting me to do an overview of issues and look at where we are going. Oh my. I'm going to talk a little bit about my personal feelings about the treaty process about self-government and about traditional values in 20 minutes. But before I do that I want to acknowledge and I have to pardon me I have to look at papers because I'm not really well taught in the traditional way of oral and remembering and keeping it in my head. I went through the system and now have to rely on notes but I want to say thank you to (traditional name) for being here every evening, for representing our people. |
| [8,11] (Traditional name) is one of our leaders who has brought great pride and dignity to our community over the years and what he has aspired to do in representing our people not only through the legal cases but through the cultural systems. I also want to acknowledge Rose Point and I don't know where she is but...oh right here. Sorry the lights are bright. Rose is another person and a member of our community that I hold a lot of respect for because she has done a lot in documenting the history through pictures and through stories and through other restorations that have really helped the young people. So thank you very much both of you for continuing the traditional teachings of our people by being there and supporting and giving your wise wisdom that's really what I want to speak tonight about. |
| [8,12] I know over the last eight weeks you have had many presentations that speak to the issue of legal interpretations of who we are, what our rights are, what the Constitution says, what different politicians say, different philosophies about why we continue to fight so stringently for our protection of our rights here. When I look at the teachings of my people I recognize that it is something that is inbred from the time that you are born. It's not something that is out there in a book and you have to go to class everyday but it's something that you through osmosis gather into yourself and I say this because I'm one of the last people fortunate enough in my community to have been able to listen to the true elders and ancestors that have gone before having lost my grandfather less than five years ago at the age of almost one hundred. The kinds of lessons and teachings that they were giving us were about relationships were about how we work together not only amongst ourselves but with the societies that have moved in to our areas about how we recognize the importance of equality for women, for elders, for young people and how important it is to include them in everything that we do everyday. |
| [8,13] How important it is to understand what the society that's outside of our community right now has to offer us and more importantly what it is we have to offer them and how we can help them as a greater society to understand what we have to offer and incorporate it into their society. As I listen to my father and my grandfather and to Delbert's grandparents when I had the opportunity that's what they were telling us in my opinion. That's what a treaty is about. It's about relationships it's about living together it's about respect and honouring what each group has to bring. |
| [8,14] If you have listened to the speakers over the last eight weeks I'm sure they have related to you that that hasn't necessarily been happening from the perspective of First Nations people. But one of the reasons I believe it has not been happening is because there has not been enough forums like this where people are able to sit down and talk and talk about what their wishes are their dreams for their children and their grandchildren and then taking that and putting it into whatever legal document needs to be put in place to protect that for the future. |
| [8,15] I was at the table ten years ago when we started to put the treaty process together and it was exciting because people were talking about their dreams they were talking about their histories they were talking about their cultural values and when you listen to non-Aboriginal people at the provincial and federal level that's what they were saying. They were talking about how we get to that place. What's happened over the last few years in my humble opinion is that we've moved away from that. We've enabled and allowed the legal people to take a lead in a way that has stopped the dialogue that has stopped the ability to listen to one another because we're so caught up in the interpretation of what the court cases are saying we're losing the reason why we brought those court cases. The reason we brought those court cases was to make a better life for our children and our grandchildren and we wanted to outline what our values were in order to attain that. |
| [8,16] But now we have these legal people in such positional places stopping that dialogue and I think that if we could get back to that, if we could just let the people sit down and talk in rooms that enabled them to do that and had the lawyers and the consultants and everybody else in the background and listen and tell them no you go away and create the document that interprets what we have said I think we'd be a lot farther along. The reason I feel so strongly about that is over the last few years I've been back in my community. |
| [8,17] I'm not now, I was a member of council back for two years and what I saw there was a real struggle and it has to do with understanding and incorporating and really holding dear to ourselves those value systems that our elders had. Because when we talk about what self-government means within the treaty process we talk and we set up our governments based on the Westminster model that has been there because of the Indian Act and whoever has got their cell on turn it off please. I think therein lies one of the biggest problems. We continually talk about how the system on the outside is not right for us but we continue to be kept busy because of the relationship with the government and the resources that are coming through there like delivering their programs and being a part of their contribution agreements and being a part of all these reporting systems that we cannot take the time to return and look at what it is that we would do within our governing systems to deliver the programs based on our value system. |
| [8,18] Our council in the last two years did that. They took and met with the community members and they spent a lot of time listening to the community members about what their dreams and aspirations are not unlike I used to hear 40 and 50 years ago in the community. They went from there to putting it down into what are the values that our people hold dear. What are those values and how do we make them alive in our administration systems now. It was absolutely amazing to see this take place. I don't think anybody would be surprised to find out that the value systems that were brought out over and over again were pretty fundamental to every society. They were respect, not only of ourselves but as I said earlier for those people on the outside, pride, inclusiveness, honour and I think the biggest one that I heard, shared responsibility, shared responsibility for our implementation of our dreams for our community members. |
| [8,19] I think that if we could take that type of dialogue and incorporate it again into the treaty process we would have some success. Not only because we'd start to get the relationship going with the non-Aboriginal people but we would start to include the young people in the decision making again and if you know anything about if anyone has talked to you previously about the cultural values of the peoples whose land you are on you would know that women held a really high and equal place in our community decision making process. That everyone that was a part of the community had a really important role to play. We didn't have chiefs as we know today as the Westminster model talks about. We had speakers and those speakers came from the families those families would get together and talk about issues whether it was fishing, hunting any of the rights that we talk about now and they would take the spokesperson who knew the most about that particular issue and have them go forward on behalf of their family to meet with the other heads of the families. Those heads of the families that would then decide who had the most ability to represent the village. |
| [8,20] Now if you think about that kind of process clearly that is a democracy that you don't see operating at any other area. Where everyone gets their point of view through so individuals are very important, the women, the elders, the youth, they're all important because they get to speak what it is they feel inside. But even more important I think is the fact that that represents a true collective and our societies are very much collectives. The individual never holds the collective hostage by saying my view is the only one that can be brought forward. On the other side the collective never says that the individual is so unimportant that we don't need to listen to them. Those value systems are really key and what's been happening over the last few generations is because we have been so much a part of this system to fight to protect and believe me as you've probably heard Musqueam has done one heck of a job legally to protect those rights. |
| [8,21] The court cases we have brought forward and it's not been so that the community hasn't suffered because the amount of money that we've had to put into court cases is just phenomenal absolutely phenomenal. I think the government knows that and they know that if they continue to hold us this way that we're going to have to find other ways of generating revenues so that we can continue to fight. But I'm hoping...I'm looking at time I'm wondering what my time is here...I'm hoping that we can sit down at more levels like this and get our issues and our feelings across so that people will support and give direction to their governments to start changing their mandates to start changing their processes to really do service to what the treaty process is about in British Columbia because if you look back and listen to some of your other speakers you will know that it's outlined very clearly and I'm not going to go into the details of that because for one I don't have the time. |
| [8,22] But if we could do one thing and that is to get people to stand up and tell their politicians to do the right thing. I'm not talking about giving in as some people, I won't name names, talk about with respect to Aboriginal people getting everything that they want. I'm talking about truly having a respectful way of sitting down and negotiating with First Nations and giving the dignity and the respect that the people that I have had the honour of listening to over the years have for the greater society. There hasn't been an acknowledgement of that but if we could get back somehow to incorporate that I think we're going to go a long ways to helping to helping finally settle. |
| [8,23] I know that my five minutes, my twenty minutes is almost up and there are so many things that I wanted to talk about but I want to end and try and bring back to what I originally said which was the value system of our people has really given us the strength to continue on over these last 125 years and continue to fight whether it's in the court, whether it's at the negotiation table, whether it's on the streets or wherever we happen to be but I truly want to believe that that strength has come from and continues to come from the teachings of our elders who have gone before us. |
| [8,24] I want to leave you with something that I was fortunate enough to have happen and put in writing for us as we were working on this governance initiative that I was talking about where we took Musqueam values and incorporated them into the modern administration system of our community because we took those value systems and we actually put them into code of ethics, oath of office, harassment policies, administration team charters and I could go on and on. But it was really heartfelt and the reason it was because we have been fortunate enough to have in our community now a language program that is supported by the community and an office set up where people are working in there daily. |
| [8,25] We went to them and we asked them if you were going to take the time as they did in the longhouse to help your leaders to help your leaders be full of respect and pride and inclusiveness and honour what would you do and how would you say it? Because I tell you when you go into our longhouse there is a different way of speaking there's a different way of relating and if we could take that and incorporate it into our everyday speech we'd be far down the road. They came back with something that moves me every time I read it. Now keep in mind these people are telling us how to guide, how to guide, our leaders and I'd really like to say this to someone like Premier Campbell some time and I'm just going to read it and one of the people who actually wrote that is sitting with us now he came in late and that's Victor, Delbert Guerin's son, so, he's got it written in our language but I can't speak the language so I'm going to say it in English and please excuse me because even though I've said this many times I still get very emotional. |
| [8,26] "Please respected people, we would like to have your attention. It is an important job that you now have. In order to help you as Musqueam leaders do that job well we need to provide you with some tools. Our ancestors, the elders of the Musqueam ancestral lands, sentinels of largest salmon producing river in the world said: the ways of the Musqueam people come from their (word?). Our (word?) is the legacy of knowledge passed down from our ancestors. Our Creator bestowed our (word?) on our ancestors. (Word?) is the act of passing the knowledge from one to another. A part of the teaching of the legacy of knowledge among other things is the way we live and work together as one. In the spirit of our (word?) and in the interest of the survival of our people, as a people, our leaders will carry themselves and the business of our fellow members in an honourable and respectful manner." Thank you. |
| [8,27] Linc Kesler: I think we will not need to stop at this point for any technical servicing so we will go on to our next speaker which is Terri Brown and I should mention that Terri has long involvement in Aboriginal women's groups aside from her current role tonight and has spoken in international forums as well so we're very happy that she is able to join us tonight and here she is. |
| [8,28] Terri Brown: Thank you. Good evening everybody it's a real pleasure to be among you tonight and I want to begin by thanking the Musqueam Nation for welcoming us here tonight and for having a great forum for people to get together and learn from each other. I want to begin by reading an excerpt from the 1910 Declaration of the Tahltan Tribe and it states: |
| [8,29] "We claim a sovereign right to all the country of our tribe. This country of ours which we have held in tact from the encroachments of other tribes from time immemorial at the cost of our own blood we have done this because our lives depended upon our country. To lose it meant we would lose our means of living and therefore our lives." |
| [8,30] And eighty-three members of the Tahltan Nation, it's much longer than that, but eighty-three of our distinguished ancestors signed that declaration on October 18, 1910 at Telegraph Creek in the heart of Tahltan territory. The strength of our elders today comes from that Declaration and what it stands for. |
| [8,31] The Tahltan Nation is matrilineal, we're a crow and wolf clan people and women were very central to the survival of our nation and held a very special place and were honoured for their being life givers of our nations not only that we were life givers who were also great thinkers and we had much courage to bring change when change needed to happen. Of course settler society and the church and state dishonoured our women and displaced us from the central role we held in our family and in our communities and this has led to a very fragmented society today where women are dishonoured regularly where we're not listened to and today we're standing up because our voices have to be heard. |
| [8,32] It's a great struggle since we started the demonstration in our community of Telegraph Creek I have not seen such joy in the lives of people there just this political action has brought change and whether or not our demands are met we are being successful on a daily basis because people sit around for and that hasn't happened for a very long time where we just sit around and chat and talk and share food and share gifts. We are beginning to dream again that is what this has done for us this is the gift that we've been given from taking this demonstration into our hands people are dreaming again and looking to the future for a better tomorrow. |
| [8,33] Our legal system stems from of course the clan system and our matrilineal structure and the Indian Act because it displaced the women and along with the religious teachings it eroded our beliefs and men today in many ways do dishonour women and some people try attempt to follow their mother's or their father's clan which is absolutely unheard of and would dishonour your nation to do that. We have many struggles and one of them is when we sit in this educational institution I wish to share with you that there is some struggle between the educated and the people who have not had the opportunity to come into this city and to become educated there's definitely a riff between those people. |
| [8,34] Formal education needs to be honoured and valued but so must our traditional knowledge because our education our traditional knowledge cannot be honoured if it does not have a place in these kinds of institutions. It will not happen that our teachings will go on for time immemorial. Currently there is little value based on our knowledge and if it continues along that road we will lose all of our knowledge and it must be incorporated into institutions so that there are credit courses so that people can begin to learn. It is absolutely critical to capture the knowledge of our elders because as they die our knowledge is dying with them and that included our language. |
| [8,35] In the elected leadership we have come to have considerable conflict in our nation it's because there's many Eurocentric ideologies and models that don't quite fit, they're not quite inclusive enough, they don't represent people on the margin, they don't represent always the people that don't have a loud voice or have the courage to speak out because the other institutions have taken a huge toll on our ability to be confident and strong people. |
| [8,36] As we sat around the band office and it's two months tomorrow that the elders have occupied that band office and again I've taken my strength from them I don't consider my leader in this struggle it's the elders who are leading this. We hear elders talk about what leadership is and what it meant to them as people when they were young themselves and they told us that leaders were observed from childhood they just didn't one day become a leader because they were popular or because they had a law degree. It didn't happen that way they were observed from the time they were children so that they had the right qualities that matched the job at hand and when they observed those qualities they shared and they nurtured those qualities and young people. They were very committed to others they had to see that they showed in some respect that they were committed to the collective and also to their family and also trustworthiness was important, patience, reliability and proper, respectable conduct was very important and the value of women, their parents, elders and children was very critical. |
| [8,37] As we sat around they told us that honesty was an absolute it could not be violated. Leadership today is stark contrast to what happened previously. Leadership is much based on promises it's not based on how they live their lives and how they lead your nation it's about promises and how you can get enough votes so that you can survive and go on for another term of office which is very sad. It's no secret that our communities are fragmented and it's very difficult to build from that place but I'm sure there's a lot of hope because I see it in the eyes of our elders as we sit around. It's difficult again because government and industry exploit the system not only the system they exploit us because they know we are in a weak and vulnerable position and it's easy to exploit people who don't have a lot of education who live off the land who haven't really converted over to this system that is very very different for us. |
| [8,38] Of course they exploit the consultation and accommodation process with elected leaders they don't need to talk to us anymore and they told us that when Shell Canada came to meet with us I asked them why haven't you consulted the elders you should have talked to us no agreement is going to go forward because we haven't been consulted and their response was how could we consult people who we did not know existed? That's a very sad situation when leadership wouldn't allow that to happen. The difficulty with that is with the band governments etcetera it's a very very different ball game and of course there are many flaws and I won't go to any length because we're all very familiar with that all around the loss of status and the generations of people who have left and who have come back and there's definitely struggles between that and that needs to be resolved. |
| [8,39] There's a disconnection between the people and the land people have never lived in their homeland and it definitely brings about some struggle. We have many legal and technical experts who are Tahltan some of them are women but they're of little value to us if they don't reflect our values the only reflect what is taught here it's of little value to us. If the education system only creates highly specialized individuals lacking in compassion this system has failed us. |
| [8,40] We're talking about excessive, extensive development, resource development in our territory and we're very concerned with that because again the communities aren't strong as they could be and the voice isn't as strong as it could be. The people as I'm talking to them we're not talking about people with a great deal of power or people with a great deal of money or influence however they will not take profit over everything else. They will not risk the loss of their precious wildlife and fish to become wealthy people. It just does not sit right with them and that is part of the struggle that I'm very very honoured to bring to you tonight because I've been asked by the elders to do that. |
| [8,41] Of course we cannot ignore that development needs to happen and many have told us, many young people have told us you cannot stop development. You cannot stop when they want the gold when they want the coal bed methane they're going to get it that is somewhat true but in our hearts we are not defeated people we don't believe that we are defeated to that point we will make a stand and that is what we're doing. |
| [8,42] Of course, we know as long as there is this huge demand, supply needs to meet it and very often we will be the exploited people and of course we have been excluded from the economy except when they want something from our country and then they come north to the most northern places the far reaches of the province in Canada to get what they need and it's very difficult because consumers will continue to consume we will never meet the needs of consumers because it's endless and they cannot anymore forget about our wellbeing and we do not need to pay a high price because they need to have two cars in the garage because they need this and they need that. So it's very difficult as we sit in a place very far north of here and talk about these issues because for many years our elders have been so disempowered they have not spoken so this is a very very extreme situation they have never taken action like this before and this for me it's brings hope that they are going to bring some changes that is very much needed in our communities. |
| [8,43] What the people were saying was that they have been pushed to the brink and they just cannot take it anymore and this action has been very extreme for them because our people as I sit around I realize how very gentle they are, how very giving they are, how very welcoming they are and that they haven't lost all those wonderful characteristics despite the challenges they have had throughout history. They have held on to these values and they continue to be welcoming even to white folks I have to say they're very welcoming to everybody and it's very great to see and I really cherish that in our people. Of course the elders again it's difficult because elders do get abused they sometimes are given the token role they're handpicked they're used politically and we need to again be very careful about that. Many of our elders have never spoken in a forum of any sort and have never voiced concerns or mentioned anything about anything so now they're beginning to build their strength it's wonderful to see it's absolutely beautiful to see and as we move and we become stronger day by day it's very heartwarming. |
| [8,44] So what we sit around and talk we don't have any experts on anything we just talk about what we want for the future generations we don't have any lawyers there, we don't have any scientists, we don't have any people with any real formal education and what I've said is you don't need a PhD to have an analysis about our people, we've lived it. We've lived everyday of having brown skin. We've lived everyday with facing what we have to face in this country. You don't need to have a PhD you just have to be able to articulate what's in your heart and to be very strong. You don't what you do need however is a mind that can think a mind that is not so oppressed and not so threatened that you cannot express yourself anymore. What has happened there is that the elders just stood up and they started taking action and they continue to do that. |
| [8,45] They've prayed together, we've all prayed together, there's been no government funding I think it's a very unique situation because no one involved is getting any kind of salary or pay nobody has gone to the government to buy anything. Women and families contribute the food, the food is prepared and brought in or prepared in the band office and we're using a lot of traditional food the elders are taking up donations they're giving donations and holding auctions and that kind of thing to raise money to pay for our travel to come here. Some of us are in town to do other business. So it's been very strengthening for us. It's in contrast again to organizations that are government funding who have millions of dollars and no one can do anything without getting paid a high honourarium or a high salary so the elders are giving of themselves to this movement because they believe that we need change. |
| [8,46] I just want to again say that it's very critical that the knowledge will die with our elders if we don't make an effort to learn from them and to carry on that knowledge. Of course globalization there's tremendous pressure on us again to produce for the consumers and why don't we start talking about some legislation to decrease pollutants and to possibly maybe even implement Kyoto and why should we risk our nation our livelihood and our way of life and our beautiful country that was given to us by Creator so that we can continue to produce for the consumers who will endlessly need something different. I would like to end by reasserting the wise words of our elders our ancestors who continue to guide us in this struggle day by day and again we say: |
| [8,47] "We claim the sovereign right to all the country of our tribe. This country of ours which we have held in tact from the encroachments of other tribes from time immemorial at the cost of our own blood we have done this because our lives depended upon our country. To lose it meant that we lose our means of living and therefore our lives." |
| [8,48] Our elders still stand by that Declaration and I thank you again for inviting me to speak here today it's a great honour and I wish you all the best with your programs and we pray everyday for the continued guidance and the strength to make our land and to keep our land beautiful for our future generations. I thank you. All My Relations. |
| [8,49] Linc Kesler: We will be taking a short break here so our technicians can service their equipment. Our third speaker tonight, Gordon Loverin, is when he's not here speaking on behalf of the chief he's works in media and has had long involvement in the issues of lands and governance so we're happy to welcome him here tonight and please join me in welcoming him to speak. |
| [8,50] Gordon Loverin: First of all a little bit about me my name is Gordon Loverin my traditional name is Yanna Tan I happen to be of Tahltan and Tlingit blood so that means I carry within me the heartbeat of two great nations in this province. I've been involved in media for the better part of most of my professional career and I want to just start off, what I wanted to say tonight with a little bit of background about why we're here. |
| [8,51] In 1983, I was just a nineteen year old young rookie reporter hanging out in the national media centre in Ottawa watching a bunch of Aboriginal leaders sit down and discuss things with the Prime Minister and the premiers of this country. Many Native people at that forum had different agendas that they wanted to bring forward and I was watching how they tried to strategize and figure out how they were going to enshrine section 35 into the Canadian Constitution the only amendment that was put into Canada's Constitution. They were able to take their different needs and their different agendas and galvanize it into one thing and that was to protect our rights and title in this country from coast to coast to coast and I was nineteen years old at that time. I watched some great leaders do some amazing things some were men some were women and they changed the face of this Constitution which guides this country. |
| [8,52] Last night I cried for my people, I literally broke down and cried for my people because of what is going on in Telegraph Creek. I dropped to my knees and I cried and my wife said what is wrong and I said what hurts me is my own people are fighting each other. We are in conflict and that pain resonates right down the province to Tahltan and other people 1200 miles away we have watched a leader emerge through a very extreme method of speaking out and we have watched her divide our nation at every level. |
| [8,53] Every progress that we've been able to make she has broken down. She has told our women amongst our nation that their efforts at going to school and higher learning means nothing. She has told other leaders that their belief in trying to make a better way for their people so that they're not on social assistance means nothing. She has told us that if we do not live in Telegraph we are nothing that our blood does not make us who we are and that because of it we don't understand what is going on with the elders. |
| [8,54] While I remember my elders taking me out onto the land and showing me how to shoot a beaver and to skin it and stretch its hide and put it out on the board and wait for it to dry I remember my elders showing me a little rabbit trail and how to set a snare I remember my elder consoling me the first time I found a rabbit dying in the snare and I was so moved to feel this animal's pain that I began to cry and my elder taught me that is the natural way of things. So I believe in my heart that I have the knowledge of my elders coursing through my veins and I will not sit back and watch somebody divide our nation even further because as Wendy said earlier we are collectives and only by remaining collective and being able to look forward to the ultimate goal which is to take our rightful place in society as productive members of Canadian society with our own culture and traditions and our own value systems and blend them in with the need for our children to survive and succeed only then do I believe that we have a chance. |
| [8,55] But if we sit back and watch others tell us that everything that we have struggled for since that day in Ottawa when that Constitution was amended to bring in section 35, if we continue to have division like that then we are lost and those of you that are going to school here today trying to learn how to take up the fight so that you can protect your individual peoples' rights and titles in this province we might as well go home. So that comes from my heart and I would now like to make a written speech or read from a speech that was prepared for this evening. Thank you. |
| [8,56] Before contact with Europeans we had a system in place that provided that we follow our mother in determining our clan designation. This system was put in place to help prevent relationships from developing between blood relatives. Our concept of following our mothers is still used to determine which clan, wolf or crow, our children would fall under through unions outside of our bloodlines. In modern times we have interacted and procreated children from many other races however Tahltan genealogy links us to our ancestors who have lived on the land prior to contact. We have Euro-Tahltans, Tlingit Tahltans such as myself, other First Nations Tahltans, Asian Tahltans, and African Tahltans. Today we have established that as long as you have Tahltan blood you are Tahltan and therefore subject to all the rights and privileges being a Tahltan person implies. Those rights extend beyond the reserve boundaries and the recognized traditional territory of the Tahltan people. In other words if you are Tahltan and living in Vancouver you have every right of say-so about what goes on in your traditional territory. |
| [8,57] The concept of those living on reserve having more say than those do not has already been fully dealt with by the Supreme Court of Canada by the Corbiere decision and what the court decided was that band council decisions impact all members and non-residents on reserve is a ground for potential discrimination under section 15 of the Charter. The court found that members left the reserve for a number of reasons including social and economic reasons, lack of housing, limited opportunities for education and history of the Indian Act discrimination against women. We recognize and agree that Aboriginal people have been marginalized and discriminated against by Europeans in their drive to colonize and develop this country we now call Canada. |
| [8,58] However, that is a larger issue that will only be resolved by the collective effort of all Aboriginal people and the governments of Canada and British Columbia to reconcile Aboriginal title and rights with assumed sovereignty by the Crown. Developing a mutual relationship with government and industry is our Tahltan effort to stop the continued cycle of marginalization and we do feel strongly that any development within our territory must adhere to some basic principles that the Tahltan central council has developed. Decisions about development can only be made through informed decision making by all members of the nation on a case by case basis. Our nation has not decided to place a political moratorium on development. |
| [8,59] In 1910 the Declaration of the Tahltan tribe was very clear. We are the sovereign owners of our traditional territory that hasn't changed. But the Declaration also directed that successive Tahltan authorities be charged with developing co-management relationship with the B.C. government. The following is taken from the Declaration: |
| [8,60] "We desire that a part of our country consisting of one or more large areas to be erected by us be retained for us for our own use said lands and all therein to be acknowledged by the government as our absolute property. The rest of our tribal land we are willing to relinquish to the British Columbia government for adequate compensation." |
| [8,61] That also forms the Declaration from which Terri Brown spoke of earlier tonight. This means working with and attempting to develop a land and resources process that benefits both the Tahltan people and the provincial government. Our chief is simply observing and following the direction that has been given to all chiefs since 1910 by Chief (word?) and 80 other Tahltan people. As Aboriginal people we hold a different opinion about who really owns our land and our position is that since there has been no treaty with us we are still the legal owners. The chief of the Tahltan band has not entered into any agreements that involve any sale of any part of our land, existing projects cannot and do not contribute to the loss of land as Terri would assume because the Supreme Court of Canada in Delgamuukw decided that lands cannot be used in a manner that is irreconcilable with the nature of the Tahltan's attachment to the lands. |
| [8,62] This is important because in respect to the non-economic and cultural aspects of Aboriginal title that's what it's speaking to and the court decided that lands cannot be alienated. Aboriginal title lands can only be surrendered to the federal Crown and converted to non-title lands. Tahltans are not participating in the B.C. treaty process. Terri's claim that we will have six operating mines within our traditional territory by next year simply cannot happen as none of the proposal mining projects have completed the environmental assessment process nor has the province consulted and accommodated Tahltan title and rights with respect and Wendy talked about that, respect is important in all these discussions. |
| [8,63] The special assembly held by the Tahltan central council in January which was the precursor to the action that Terri and some elders took in taking over the Tahltan band was not consultation as they claim. It was an information session sponsored by one of the proponents of a project. It provided Tahltans an opportunity to not only receive the proponent's plans of which Terri was there, but, an opportunity to hear from other Tahltans generally about issues including the law concerning Aboriginal title and rights, mining methods, environmental issues and social impact issues and by the way at that Tahltan General Assembly Tahltan women with degrees, education were the ones that were talking to their own people and trying to provide them with knowledge. |
| [8,64] In any case, even if the project were approved commercial operation and production is at least 3 to 5 years after each approval. So we're not under the pressure to agree to a less than perfect deal and we cannot agree to any deal without consulting all members of the Tahltan Nation of which there are about 5,000. Our chief will never have the authority to make land sales or deals in our traditional territory that authority can only come from the whole membership of the Tahltan Nation. He does have the authority as has been noted in the Tahltan Declaration of 1910 to help our people cooperate with government and industry to find the best basis for satisfying our ongoing social and economic needs that responsibility is the Tahltan's central council because the TCC governance structure is a traditional government made up of family representatives forming a council somewhat like what Wendy was explaining about her people are designed. We feel that they will have the clearest voice in deciding Tahltan issues concerning Tahltan title and rights and needs as a whole. |
| [8,65] The Tahltan central council will ensure that development projects on our land meet our environmental standards and that's very important. Our environmental standards not governments not industries. The governance development process has not been completed therefore Tahltans have not given 100% approval to any proposed project within our territory. As a nation our interest and preconditions over development projects state no environmental impacts that are beyond management. A direct say in the decision making process surrounding development projects, resource revenue sharing and social infrastructure development paid for by developers our chief recognizes that Tahltan involvement in projects go way beyond just simple jobs. |
| [8,66] However we do have families that are making a good livelihood by Canadian standards from development in our territory. Tahltan people have been hunter gatherers before contact with the Europeans. We deliberately took the lives of our brothers and sisters in the animal world but we did so with respect. We continue to co-exist with the animals in our traditional territory. However, we recognize that we have moved from a hunter gatherer society to a different one and we must ensure the continued protection of our brothers and sisters in the spirit world. Our principle of respect still exists today and we will not allow development projects to suspend that which has allowed us to live in this land for as long as we can remember. |
| [8,67] Therefore, the Tahltan central council works to ensure this principle of respect remains at the heart of any development discussions. Some members of the Tahltan Nation believe we don't need any more development as the Eskay Mine is already taking care of our employment needs. But just yesterday a (word?) representative stated that Eskay Mine is slated to close down in 2007. This means as early as June the mine will start downsizing and will be decommissioned over the next two to three years. So the issue of ensuring continued uninterrupted employment for the 117 Tahltan families in our territory is of vital importance. |
| [8,68] During the ongoing development of Tahltan governing structures we must work together to effect those changes. The Tahltan central council support will include assistance in arranging a venue, providing transportation, locating an impartial facilitator or other activities the elders request. Tahltan elders will determine what form the discussions will take and it is anticipated that they will offer the direction to the nation after their meetings that will begin the issues to a resolution. Political representatives and administrative staff will not be allowed to attend. This is simply a forum for our elders to tell us what needs to be done to fix our nation to bring our nation together because it has been fragmented, divided along so many lines. |
| [8,69] The Tahltan central council is comprised of family representatives that form the basis of traditional government. The Tahltan board of directors met earlier this week and agreed to support the elders' efforts the traditional territory of the Tahltan Nation covers approximately 150 square kilometres in northwestern B.C. and the Yukon. Tahltan territory is rich in resources and its leaders seek to build a self-sufficient and self-determining nation. |
| [8,70] Twenty-two years ago I was in Ottawa watching the formation and the development of a Constitution that leaves all of us in this room to do what we do to protect our rights and title. Twenty-two years ago I was nineteen years old today I'm forty-one and I still have a lot of learning left in me. I would like thank you for taking this time to listen to me and I truly hope that you will pray for the Tahltan people and see that we are able to bring our differences together so that we can get to the business that is really at hand protecting our rights and title against the influence of government, industry and environmental groups. Thank you. |
| [8,71] Linc Kesler: So are there questions here tonight from the floor? A question from the back of the room there sir. Okay the gentleman from the back is an elder from Telegraph Creek and he has invited people in the hall to speak with him if they would like to after we're finished here tonight. Thank you. |
| [8,72] Question from the front here. For our viewers who are watching via the internet the last comment was really more in the form of a statement than a question but it was I think at the end a request that the community pull together and end the acrimony surrounding the issues and get on with the process of working together to resolve the issues and it's much appreciated by the audience here. Anyone else? Yes. |
| [8,73] The question was addressing the situation of people who through no fault of their own were disconnected for circumstances in their lives from their community and have sought greater understanding through education and the question is to all of our panel how can people in that situation become reconnected with a community and understand the heart and soul of the people. Would anyone care to address that first? |
| [8,74] Terri Brown: Sure. I think that there needs to be a lot of effort put into that because it won't just happen. I know there are some people who do have programs to reunite people to come back home and get to know but I think part of it is we think that when people come home it will just naturally happen but I think there is tremendous amount of work that could be done to work together towards becoming because there's you know some differences that are there that kind of get in the way but I see the importance of getting an education I had to do that myself to leave and part of that problem is that people do need to leave home to take advantage of opportunities that are in the south and being from such a northern community a lot of people don't go back or they stay here and that kind of thing. But definitely is a struggle and I don't know the real answer to that and I know that in my generation too that went to residential school that's a huge part of it as well. But, sorry I don't know the answer. |
| [8,75] Gordon Loverin: Again, restate the question please. |
| [8,76] Linc Kesler: The question was how can people who have been separated from their communities by circumstances in their lives and have sought to gain knowledge through education how can they become better connected with communities and truly understand the heart and soul of the community. |
| [8,77] Gordon Loverin: I think one of the things and I can only go from my own experience three days ago this might sound silly three days ago I got a telephone call from a woman who's twenty-two years old and her name is Neesa (sp?) and she tracked me down and I am her father. She was given away for adoption I didn't know about it I know who her mother was and she was reaching out to try and she had heard that she had a father who's Tahltan and she had by the process of elimination found her mother and was able then to reach out to me. So this is a woman who comes from mixed blood, Aboriginal/non-Aboriginal, and she's seeking to connect to her community and her first point of connection was to find out who her father is because she was very interested. |
| [8,78] So what I did was I took the call and I acknowledged her and I told her about myself and I told her what we are like and I took every effort I could to educate her because she was seeking knowledge and I think that is one of the first steps that if people are disconnected from their communities by no fault of their own that most of us should try to understand what the issue of disconnection is and how that can make the other person feel because once we do connect with our communities I think the process becomes a natural one. |
| [8,79] As Aboriginal people I think we are very inclined already to our own peoples and I think we just have to have an open mind and an open heart and be willing to bring people back into our communities. So now the end result of that conversation we're going to start meeting we're going to start developing a father and a daughter relationship and I'm going to take her back to Dease Lake and Telegraph and Tahltan and up to Atlin (sp?) so that she can understand exactly the land where she comes from because yes I do believe that once your in connection with your land that does pour a lot into you. Thank you. |
| [8,80] Wendy John: I'm sorry I can't see the person but I know you're in that general direction. I recognize that it's very difficult to come back into the community because our communities have been so closed for protection reasons. Protection from a number of things, the culture, the values, the traditions but in my community one of the things that we did even before Bill C-31 was to say that we were no longer going to eliminate those people from our list who married outside. So there was a recognition in our community that it was important to bring those members back and incorporate them and help them to incorporate them into the community. Incorporate is such a terrible work, to help them ease back into the daily activities. |
| [8,81] For someone who's not close to their community I think there's a number of things you can do and that is to ask you know for information. When are their meetings happening, when are their gatherings, and I know you have a potlatch system when are those happening, get on the mailing list I mean these are really some fundamental things but I've seen the people in our community who have come back who said these are really important for them because they're so far away from the community that the only way they can keep connected right now, and it's worked, I've seen some women after five years going through this process they come back in they know who the people are they know the names they know the faces now they know the kinds of things that they're interested in and they're able to become a part of it without feeling like their on the edge. So that was a way for them to ease back into the community and I think that might be a way to do it if you're down here and Fort St. James is so many miles away. |
| [8,82] Linc Kesler: Yes okay first here and then way in the back.The question just for internet listeners is what kind of a process is available for the community to move forward to address the division that we've had described for us tonight and begin to address that in a way that moves the situation forward. |
| [8,83] Gordon Loverin: What we've decided well we can't really decide because we're in a conundrum because on one side of the protest there's the belief that because they have some elders on side that they come from a very authoritative point of view in terms of how they see this issues in the Tahltan Nation. It's for us younger ones as leaders or leaders in training or however you want to look at it to be able to dispute the elders that are in the band office. We have to accept that they are elders and it's very difficult for us to try and speak against them because in essence we're speaking against ourselves. When you speak against an elder an elder is a reflection of who you are and if you speak against an elder you're actually speaking against yourself. |
| [8,84] So what we are trying to say is rather than us do all the talking we're trying to get a facilitator into the community who will then bring all of the elders together in a meeting elders which we have which has been told to us are those that are sixty years and older that will be a part of the elders meeting and what we have has said is that it's up to them to decide how they want to resolve this issue. One of the things we wanted to do is all we're going to do is facilitate their needs their needs of food their needs of transportation their needs of a place to sleep. We are going to go back to the traditional way where when people sat down and talked for days after days after days. |
| [8,85] It was the younger ones that were supposed to serve their elders every need so that they could be busy on the work of coming to solutions and seeing the future and creating a path for us to follow so our role is simply to work for the elders and the elders will then tell us how we will resolve the issue and what they want us to do and that we think is the most respectful, traditional forum of governance taking place at the grass root level that we can ever hope to try and facilitate. It's not for me to tell my elders how to fix the situation it's for me to listen to my elders and ask them to provide me with direction. |
| [8,86] Terry Brown: I guess just to add to that the elders are giving the directions I'm not giving them directions I'm doing what they asked me to do. When I went home they asked me to stay and kept extending my stay and then this developed. But I think in terms of using a term as what is constructive and non-constructive may be a term that could be seen as a sort of a value judgment on what has happened there. |
| [8,87] I can't really say because what may be constructive to our thinking may be or non-constructive is constructive to their thinking because of the process that needs to happen. I think it's more about it's not about having someone coming in and coming up with many options or great solutions. I think it's more of a process that's happening than anything that needs to happen that when they reach a point I would imagine and you know more development will happen in terms of talking and facilitating a discussion and that kind of thing. |
| [8,88] Linc Kesler: There was a question in the back over here and then following that question if we have time for one more.The question was what other steps can be taken beyond the ones that I think we've been hearing tonight to address the situation of communities. |
| [8,89] Wendy John: If you don't mind I'll jump in first. I don't think there is any way to ease the growing pains, I call them growing pains. I think that it's a natural part of the reclaiming of who we are and in order to get through it that's what we have to do we have to go through that struggle of reclaiming it which means there have been a number of different philosophies and a number of different approaches that have gained credibility in the communities. So the value base that I was talking about earlier is the one that I believe is going to help us through that but I don't think that we should be afraid of the kind of dialogue that we've seen going on. |
| [8,90] I can remember years ago listening at the door of the hall the tiny little hall that we had where our elders had some very very very strong disagreements about what should be done. They weren't afraid to disagree. It's a matter of how you respectfully disagree and bring back the solution in a way that's palatable to everyone. So you know I look at our society and I wonder why it is when we look at the growth we're going through that we are not given the credit to be able to have these kinds of disagreements like all other societies do and work through them and come to another end. We're supposed to all think the same way, act the same way, do everything the same way because we are all of the Musqueam people or all of the Tahltan that's not the way it is in reality. I know I'm going on so I'll stop but my answer to that is I don't think there is a quick way of going through this and I think it's an exciting time. I'm not afraid of it I think it's good I think it's healthy and I think it's needed. |
| [8,91] Gordon Loverin: I think that what we've had in the last few years we've had many outside influences on the development of First Nations across the province. Back when I was a younger reporter the easiest influence for Aboriginal people across the country to deal with was government and industry. We had those two outside forces that we heard many times embarked on a process of divide and conquer and tore down our communities by offering different things to different sides of communities or nations. In more recent times I've watched environmental (word?) become just as powerful just like an industry. They have a clearly defined path that they want to embark on and that's a protectionist path whereby they are going to put a stamp of no development on large tracks of British Columbia land and they are using Aboriginal people and our inherent right and title power and usurping it into their own organizational paths and using that as a method for them to gain force and effect for their protectionist agenda. |
| [8,92] What I've been trying to say to people is that we now have three outside influences as Aboriginal communities that we must watch out for. Those are the government, the industry and the environmentalists because they seek to also divide us and to hand pick certain individuals to lead charges against the governance structure that we are struggling to try and develop in our communities. One of the things that we are trying to do in Tahltan country is development a traditional form of government that gives everybody a voice and then we will deal with what the issues that government, industry and environmentalists want us to deal with but if they do not back away and allow us our right to self-determine and our right to be able to say that this is what we're going to do with our traditional territory and once we have agreed that as a collective what we're going to do then we will talk to you all. |
| [8,93] I think what we are doing is simply going to flounder around we're going to have ad hoc de facto leaders with their particular causes coming up and disrupting and breaking down every thing that we have been trying for the past 20 years in this province to build. I'm a person that believes in building things I'm not a person who then divides things down and tears down structures because I think at the heart of all of our different First Nations we have governance structures that are pretty solid, solid like this longhouse. They're build on good foundations we've just been a little bit shaky in years past lately in how we are either going to paint the outside of the house or whether we're going to use shingles. |
| [8,94] One of my good friends that is a member of the Musqueam Nation or lives on Musqueam territory is Shane Point and I have a lot of respect for that man and he said to me just the other day that conflict is built on ideology and resources. People have different ideologies and they're all fighting over limited resources. I hope at the end of the day Terry that you're Tahltan blood and my Tahltan blood have the same principles so that we can work together to figure this out instead of continuously dividing the nation down very motherhood statements that are hard to argue against I have no answers except that I know if I reach out and seek across the table the commonalities that we have virtue of the same blood that runs through our veins we can find a way to see our way through this particular situation. |
| [8,95] Linc Kesler: We have time for perhaps one last question and I would like to make my request that this not be addressing the specific situation but more general question that anyone may have from the rest of the series that they would like to pose to this group of speakers. In the very back over here. |
| [8,96] This question was fairly long and I hope that I can do it justice but I will say that I will say two things about the question. One is that it certainly does speak to the heart of our series and all of the session we've had and it would have been as good a question to begin with as it is to end with and I think let me just maybe pick out one part of it that you've started with which was the differences between traditional styles of government and the government that derived from the Indian Act and I guess maybe a question would be how can that relationship be sorted out in the most productive way. So if any of our panels would like to speak to that or other parts of the question they may have heard. |
| [8,97] Gordon Loverin Traditional versus the new way of looking at things that is exactly what we struggle with. We struggle with well in our community we've been told for a long time by our elders go out and get educated go out and learn the white man's world and then come back to the community and help us. Help us to development our community to move forward. So we've been taught from our elders to move out, learn the other side of how government a dominant society does things. Learn what they have to offer and then bring it back and use that knowledge along with the traditional knowledge of the elders and help form a path that will ensure the survival and the goodness and all of those good things that we as Aboriginal people like to believe is in us and so the struggle for us is just that. |
| [8,98] How do we balance the knowledge that we are gaining out in the non-Aboriginal world and bringing it back to the community and communicating that knowledge in a way that our elders can understand because I will say and I will recognize that sometimes we learn so much outside and then come back we forget how to talk to our elders and we have to learn how to get back into the language that they can understand because they concepts we're bringing back they do want. They do want those concepts because they want to thing about it and they want to pass it amongst each other and then they want to use those new tools to help guide their grandchildren's future and so that is the struggle that we are facing. |
| [8,99] We have to learn how to speak to our elders because even in this current standoff we have or whatever you want to call it I don't think that there is one person on either side of that line who does not believe that it is the elders who must show us the way and we're committed to that. It's just that in our hustle and bustle life that we've adopted we've forgotten how to talk to our elders and I hope to help facilitate that as a professional communicator. |
| [8,100] Terry Brown: I think that on the traditional aspect it would be very easy if it was very clear for us but it's not. There's some of traditions that still exist some have been lost and it's very difficult to really figure out what the tradition is. It's not a mythical thing it was a way of life and we're trying to revive some of that whatever we could to give us the strength to be more effective as a nation because the current governing structure is not totally effective for us and so that's a part of the struggle. |
| [8,101] The other part of it is that with formal education traditional knowledge does not have as much value or as much it's not used as much as the formal education has a lot of value and we know what the value is whereas it's not a part of the traditional knowledge is not a part of the education system so what we learn we learn at home at a young age and if you leave the community you might not learn as much as some other people who live on the land. So there's all of those things I don't think anything is really certain. Again I'm saying it's kind of a process we're working through and we will arrive someday at a place where we can work and begin to honour the ways of our ancestors. |
| [8,102] Wendy John: How can that relationship be sorted out? It's something that's a reality for the last 3 or 4 generations of our young people in the community and one of the things that I think has to happen is that we as elders and leaders in our community have to help and guide the community to understand that it's time now for us to take ownership of this that it's no longer the responsibility of the government it's no longer acceptable to be looking outward and saying it's somebody else's fault and the reason I say this is that we have gone through this for 125 years and have retained enough of our traditional values and teachings to be able to stand up and recognize that all of the imposition of the government systems of the different types of racism and marginalization that we've dealt with has brought us to this stage where now it's time for us to stand up and say no longer are we going to be victims of what's happened. We're going to take ownership and start to change reality of our young people and the future generations. |
| [8,103] So I agree that it's the elders that we have to talk with but more importantly listen too and I think it's really important for us in this time of reclaiming that spirit. Because what we're talking about is reclaiming the spirit of who we are and creating the structure based on what we see and that's individual communities not as a blanket. What we see is our spirit and our heart beat into that so when we listen to those elders and speak with them it's really really important to connect that to the young peoples' goals and aspirations in the year 2005 because we cannot completely cut it off and I once again say that the issue of ownership is what we're having to deal with now that no longer can we say that it's someone else's fault we are all, most of us have enough education now to understand the issues and we should have enough intelligence and teaching amongst us to find the solutions forward because we're the only ones that are going to find the solutions no one else is going to find it for us. |
| [8,104] Linc Kesler: Thank you very much before...in a minute I will ask you to join me in thanking tonight's speakers for what they've given us before doing that I want to take just a minute because it is our last session to acknowledge other people who have helped make our series possible. I want to of course begin again with the Musqueam people for allowing us to conduct the series on their traditional territory, to UBC and the Ministry of Advanced Education for their support in giving us the means to do what we're doing to Nancy Gallini, the Dean of the Faculty of Arts, and the rest of the faculty for their support and for the wisdom to support a technical team that could do this event the way they have. To our technical team who have been labouring here in the background of each of our sessions and in their locations and in their labs and in other places and they work very hard to sort out all of the difficulties that we've had and make the internet portion of this series the success that it has been and I want to mention that all of the presentations including tonight's will be available are available now and will be available in tonight's case for your review at a later point. |
| [8,105] Within about a month we will have some additional tools available for you on site to look at those archives and to search them by terms to look for a specific references look through transcripts and see the video from a position from a section that you have found in the transcript and I hope that you will find those valuable. I want to urge you again to let us know what this has been like for you to be engaged in this kind of a process and let us know if it's something you think we should continue. We value your feedback and depend on your support. |
| [8,106] Now I would like you to join me in thanking tonight's speakers they have dealt with very difficult issues they are in the case of our Tahltan speakers they are speaking from a community which is suffering from division but they have come here tonight and spoken together on this issue and we have we've benefited greatly from our understanding not only that of the issue in question but their help in realizing that everything we have been talking about throughout this entire series is an ongoing event and an ongoing struggle and it happens through processes like the one we had described for us tonight and through the work and continued effort of all the dedicated speakers who have joined us in this series and many other people like them. So please join me in thanking our speakers. We hope to see you back soon at another event. Thanks for joining us with this series. |