My Canada includes rights of Indigenous Peoples.
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Friday, December 05, 2008

Supreme Court buckles to provincial pressure? BC Am I reading this right? The Supreme Court refuses to hear cases re Aboriginal Title? In all of Canada or just BC? What kind of crap is this? I know the provincial courts buckle to regional politics/politicians, but I am deeply shocked at the Supreme Court's apparent political collusion. So ... how does one go above the Supreme Court of Canada? The International Criminal Courts, I suppose. I wonder if they can use their court-ordered funding for that? A precedent from the ICC re Aboriginal Title in Canada would be helpful. granny Okanagan Nation Alliance & Shuswap Nation Tribal Council
Dec 04, 2008 13:14 ET

SCC Decision Leaves Land Question Unresolved

Attention: Assignment Editor, Business/Financial Editor, Environment Editor, News Editor, Government/Political Affairs Editor VANCOUVER, BC, PRESS RELEASE--(Marketwire - Dec. 4, 2008) - The Okanagan and Secwepemc Nations and their member Bands, Adams Lake, Neskonlith, and Splatsin, are bitterly disappointed with the Supreme Court of Canada's denial of the Okanagan Nation's application for leave to appeal the B.C. Court of Appeal's decision severing the Aboriginal title issues from the case of British Columbia v. Okanagan Indian Band. The Province succeeded in its strategy to delay once more having the land questions answered by the courts, by their application to remove the Aboriginal title issue from a trial, where the Band had been awarded an historic cost order to resolve this very issue.

The decision today is a loss to everyone in this Province. The Province has recently lost a large number of cases because it has not fulfilled its obligations arising from unextinguished Aboriginal rights and title. The Province's illegal conduct places Crown granted tenures increasingly at risk, and adds to economic instability. The decision today delays a Court addressing this problem.

The Province continues to claim 100% ownership and jurisdiction over the lands and the forests in the absence of Treaty. Is that claim legal? What changes to law and policy need to be made by the Province, in order to achieve reconciliation? These are the questions which the Province did not want the Court to answer.

Okanagan Indian Band Chief Fabian Alexis stated: "We are deeply disappointed by this outcome. The Okanagan people are committed to continue to fight for recognition of our Aboriginal title as our ancestors have done for generations. We have tried to address this through the courts, but given the Supreme Court of Canada's decision, we are going to pursue all other options. The problem is not going away."

"The Supreme Court of Canada's decision totally frustrates its earlier order that the Province pay the Bands' legal costs so that we could access justice regarding the unresolved land question", said Splatsin First Nation Chief and Shuswap Nation Tribal Co- Chair, Wayne Christian. "It is a total waste of public money because nothing has been resolved. Our communities continue to live in poverty, and what caused this litigation in the first place will only occur again. In spite of the New Relationship and the many Court victories of First Nations, the Province remains committed to the status quo. The Courts are needed if systemic change from denial to recognition is to occur."

Adams Lake Indian Band Chief Nelson Leon observed: "In denying the Band leave to appeal, the Court has bought into the Province's procedural manoeuvres to avoid addressing the land question, something the Province has done since B.C. joined Confederation in 1871. For years it was illegal for First Nations to go to Court to advance recognition of our title and rights. Our ancestors, the Chiefs of the Shuswap, Okanagan and other Tribes of the Interior of British Columbia, in a 1911 Petition to the federal government to settle the land question, described the Province's intransigence:

"Premier McBride, speaking for the B.C. government, said "We Indians had no right or title to the unsurrendered lands of the province." …. This means that the B.C. government asserts that we have no claim or title to the lands of this country. Our tribal territories which we have held from time immemorial, often at cost of blood, are ours no longer if Premier McBride is correct. We are all beggars, and landless in our own country. We told him through one of our chiefs we were of the opposite opinion from him, and claimed our countries as hitherto. We asked that the question between us be submitted for settlement to the highest courts, for how otherwise can it now be settled? His answer was: "There was no question to settle or submit to the courts."

Chief Leon added: "The decision which was under appeal was the Province's third attempt in this case to avoid a trial about Aboriginal title. Today's decision means that the Province has sidelined the issue for now but, sadly, nothing has been resolved."

Neskonlith Indian Band Chief Judy Wilson stated: "By leaving the land question unresolved, the Court's decision continues the economic climate of uncertainty about tenures issued by the Province and growing frustration in First Nation communities."

Okanagan Nation Alliance Chair Grand Chief Stewart Phillip added: "The Province has offered no process for negotiation of the unresolved land question outside of the fundamentally flawed Treaty process which, after 16 years and at a cost of over a billion dollars, has been a disaster. The Province simply has demonstrated no real commitment to achieving recognition and reconciliation with First Nations in B.C. Today's decision from the Supreme Court of Canada means that there will be no guidance in this case on Aboriginal title from the courts either. It is just completely unacceptable that the people of B.C., Aboriginal and non-Aboriginal, should have to continue to endure the growing economic uncertainty and the related debilitating economic consequences in Aboriginal communities, caused by the Province's denial of Aboriginal title - a denial which remains entrenched in policy and law.

For more information, please contact Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314

Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789

Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328

Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146

=============================== Background

Two Interior First Nations, the Okanagan and Secwepemc, represented by their Tribal Councils, issued permits to their member Bands - the Okanagan, Adams Lake, Neskonlith, and Splatsin Bands - to log in accordance with their laws within their traditional territories, to provide housing for their membership, and to challenge the Province's authority over their lands and forests. The logging which started these proceedings occurred in 1999, following the Supreme Court of Canada's decision in Delgamuukw where the Court resolved a thirty year legal battle and held that Aboriginal title had not been extinguished in B.C., and that it had a jurisdictional and economic component. When the Province refused to put that decision into effect, logging commenced with the Okanagan Indian Band logging in the Browns Creek area near the head of Okanagan Lake and the Secwepemc Bands logging in the Harper Lake area.

Shortly after the logging activities took place, the Ministry of Forests issued a stop work order, and then went to Court seeking a compliance order, and obtained an injunction preventing members of the Bands from doing any more logging. The Okanagan and Secwepemc Nations challenged the constitutionality of the provincial legislation, based on their Aboriginal title and rights. They also successfully challenged the Province, who started these proceedings, to assume the onus to first prove its claim of 100% ownership and jurisdiction over the land and timber in the Province - an assertion which the Province has enshrined in the forestry legislation.

In 2003, the Supreme Court of Canada, recognizing the public importance of the Aboriginal title issues engaged in these proceedings, ordered the Province to pay the Bands' legal costs. In an effort to avoid this order, the Province unsuccessfully brought a motion to discontinue. In 2005, the Province brought a second motion, also unsuccessfully, to remove the Aboriginal title issues from the litigation by severing and proceeding with the rights issues. The Court rejected this motion too, but stayed the Secwepemc case, allowing only the Okanagan case to go forward.

But, in, 2007, the Province tried again, and this time they were successful in severing the title issues out of the trial. Just prior to bringing the severance application, which is the subject of this leave application, the Supreme Court of Canada, in Gray and Sappier, found that the Mi'kmaq and Maliseet had established an Aboriginal right to harvest wood for shelter, transportation, tools and fuel. Following Gray and Sappier, the Province advised that it was making an admission that the Okanagan Indian Band has an Aboriginal right to harvest timber for domestic purposes, within the traditional territory of the OKIB, including on the cut block site where the logging took place in 1999. Based on the admission, and the impending close of the Tsilhqot'in trial, the Province brought a severance motion to sever the title issues and try the rights issues first.

The lower Court ruled that Aboriginal title issues should be severed from the Okanagan's case on the basis that it could be cheaper to the public purse to decide the case without addressing the Aboriginal title issues, and because the issues would be decided by the Court of Appeal in the Tsilhqot'in case - a second case which had achieved a costs order. This decision was upheld by the majority of the Court of Appeal. In a sharply worded dissent, Mr. Justice Donald pointed out that the Okanagan have been assigned a different cause by the Province:

Ordinarily, it is assumed that the parties to litigation will fight for their respective causes. But here, the appellants have been assigned a cause which does not satisfy their goal of establishing authority over the forest lands; and they have to lose the justification issue to move on to the title determination under the umbrella of the costs order.

The Okanagan have waited a long time for their day in Court, and now they must wait longer. /For further information: Grand Chief Stewart Phillip, Chair, Okanagan Nation Alliance Primary Phone: 250-490-5314; Chief Wayne Christian, Co-Chair, Shuswap Nation Tribal Council Primary Phone: 250-828-9789; Chief Fabian Alexis, Okanagan Indian Band Primary Phone: 250-542-4328; Louise Mandell, Q.C., Mandell Pinder Primary Phone: 604-681-4146/ IN: ECONOMY, FORESTRY, JUSTICE, POLITICS

For more information, please contact

Stewart Phillip, Grand Chief Primary Phone: 250-490-5314

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My Canada includes rights of Indigenous Peoples.

Two Row Wampum Treaty

Two Row Wampum Treaty
"It is said that, each nation shall stay in their own vessels, and travel the river side by side. Further, it is said, that neither nation will try to steer the vessel of the other." This is a treaty among Indigenous Nations, and with Canada. This is the true nature of our relationships with Indigenous Nations of 'Kanata'.