Canada’s Struggle to Extinguish Aboriginal Title

 http://dissidentvoice.org/2011/03/certainty-canadas-struggle-to-extinguish-aboriginal-title/

Certainty

by Union of British Columbia Indian Chiefs / March 12th, 2011

Our connection to the Land is Sacred, it defines who we are as Peoples, it is our Aboriginal Title. Our laws and teachings bid us to honour and protect our connection to the Land. In the roots which bind our Peoples to the Land there is a life and a future for our Peoples.

Canada cannot understand our Sacred connection to the Land, our Aboriginal Title. It is “uncertain,” because it prevents Indigenous Peoples from viewing the Land as a commodity to be bought, sold or traded. From Canada’s perspective, our Aboriginal Title has to be changed, altered, and defined in a treaty so that it fits with Canadian laws and ideas about Land.

Canada’s strive for certainty reflects a desire that Indigenous Peoples assimilate into Canada, that we sever our connection to the Land. Canada asks that we dig up the roots connecting us to the Land and replant them through treaties. This lack of understanding and fear about our connection to the Land is what Canada strives to address through certainty.

For Indigenous Peoples, our Aboriginal Title and connection to the Land is certain, it is in the bones of our grandmothers buried in the earth, and in the blood which beats in our hearts:
Our Sacred connection to the Land is certain.

Our relationship with the Land, our Title, rests over every square inch of our traditional territories: Every rock, mountain top, stream, valley and tidal swell. This is certain.

Indigenous Peoples have the jurisdiction and responsibility to protect, access and use the Land and resources upon the Land for the benefit of our Peoples. This is certain.

Our own traditional laws and teachings grant us this certainty: As long as we maintain our Sacred connection to the Land we will continue to exist as Peoples.

Canada and B.C. have said that the purpose of treaties or modern land claims agreements is to achieve “certainty”. This booklet discusses the certainty provisions that have been suggested. In particular, a confidential document, “Certainty Summary”, which was drafted by the province.

The Certainty Summary gives a fairly clear indication of the certainty language Canada and the province will insist upon having in any treaties or land claims agreements they negotiate.

The purpose of “certainty” on the part of the federal and provincial governments is to “exhaustively and completely set forth” all aboriginal and treaty rights. Rather than simply accepting the existence of Aboriginal Title as ownership and jurisdiction over Land and resources, certainty limits and defines Aboriginal Title and Rights.

Aboriginal Title to lands and resources existed at the time that the Crown asserted sovereignty. This Title was never extinguished. This is why Crown title is uncertain and remains subject to Aboriginal Title.

There is an air of illegality about any transactions which the Crown makes or authorizes with respect to Lands and Resources. These transactions do not acknowledge that Indigenous Peoples own the Lands, and therefore violate the legal principle that “You cannot give that which you do not own.”

The Crown’s willingness to negotiate land claims requires a promise on the part of Indigenous Peoples that they will not fully practice their rights. Canada’s negotiating stance is: “We will recognize your rights, but only if you first tell us how you will exercise them, and only if you promise that your rights will not interfere with our interests.” This is certainty.

Canada’s sovereignty or ownership of Land and resources is not challenged, Canada does not have to “prove” its title. Indigenous Peoples do not get an equal promise that Canada will tell us how they will practice their rights, or that their rights will not interfere with our interests. Quite the opposite.

A modern land claim agreement is a contract between Indigenous People, Canada and the Province. Each party gives something in exchange for something. In order to gain “certainty” Canada and the Province are willing to grant a limited recognition of aboriginal title to a reduced portion of an Indigenous group’s traditional territory, in exchange for the release of all aboriginal title and rights not specifically set out in the Agreement.

Convert, Modify and Transform
The intent of the parties in achieving certainty is evident in the language proposed. Instead of the traditional “extinguishment” language (which used such phrases as “cede, release and surrender”) the language of treaties will be finessed so that it is not so blunt. Aboriginal title and rights will not be extinguished outright; Instead, they will be defined and limited out of existence. Achieving certainty will require that Aboriginal Title and Rights be “converted/modified/transformed/etc.” into treaty rights set forth in the Agreement.

Compare these definitions of the words used, all from Websters dictionary:

Extinguish, definitions include
1. “to bring to an end: to make an end of”;
2. “to reduce to silence or ineffectiveness”;
3. “to cause to be void: NULLIFY”; and
4. “to get rid of usually by payment”

Convert, definitions include
1. “to bring over from one belief, view, or party to another”;
2. “to change from one form or function to another”;
3. “to alter for more effective utilization”; and
4. “to appropriate without right”

Modify, definitions include
1. “to make less extreme: MODERATE”;
2. “to limit or restrict the meaning of…and”;
3. “to make basic or fundamental changes in often to give new orientation to or to serve a new end”

Transform, definitions include
1. “to change in composition and structure”; and
2. “to change in character or condition: CONVERT”
Certainty provisions will change all rights which aboriginal peoples have into contractual rights which have been reduced to writing, limited and defined. The impact of the proposed certainty provisions is to capture and tame aboriginal title and rights, and then place them in a cage constructed of words and legal provisions.
Certainty involves the re-definition and re-creation of aboriginal rights. This is done through clauses which
Ø convert and reduce all existing aboriginal or title rights of Indigenous Peoples’ into those contained within the Agreement;
Ø ensure that the Agreement will be the “full and final settlement” of all aboriginal title or rights;
Ø release all rights not listed in the Agreement to Canada; and
Ø exhaustively set forth all the Section 35 rights of the Indigenous group, including the manner of their exercise, and all the limitations to those rights on which the Parties have agreed.

There will be no aboriginal title or rights which survive their exclusion from the written Agreement. All aboriginal rights and title will be transformed to those of contractual or treaty-rights. Any stray rights which are not listed (for example, because of oversight, or because they were not thought of at the time of the Treaty) will not survive their exclusion from the Agreement. This means that if Canadian courts recognize new rights in the future (for example, a right to water or a commercial interest in wildlife) Indigenous groups who treaty will not be able to benefit from these rights.

Land claims agreements will be the Noah’s Arc of Aboriginal Rights: Any title or rights not on the arc and nailed down with words in the Agreement, at the time of the treaty will not survive. Aboriginal title and rights flow from the land and the historic relationship that Indigenous Peoples have had with our Lands. The legal language proposed for certainty will flood the land with Crown title and forever dam the flow of rights from the Land to the people. Crown title will replace aboriginal title. No title or rights will ever flow from the Land again. Instead, all rights will flow from the written Agreement.

Modern land claims agreements will create a double standard in which the interests of the federal and provincial Crowns and third parties are recognized. These rights will simply continue to exist, they will change and adapt over time, they will continue to live. There is no provision which releases all undefined rights or interests of Canada, B.C. or third parties to the Indigenous group. The rights of the Indigenous Peoples’, on the other hand, will be frozen and will not grow and adapt. If these rights are not written into the Agreement, they will no longer exist, they will be dead.

This is an example of how double standards will be cemented in modern land claims agreements. Crown title is perfected and recognized over all Lands, while Indigenous Title is extinguished from all areas not in the agreement.

These agreements are not fair or equal: there is no sharing. The Crown gets complete recognition of its sovereignty, its underlying title to our lands and the supremacy of its laws over our governments and People. Indigenous groups get limited recognition of title to reduced pieces of land, the right to co-manage resources (along with government and third parties interests) and self-government which is subject to Canadian and provincial laws.

Land claims agreements will explicitly contain recognition of all “third party” interests and that these are not impacted by aboriginal rights.

Interpretation: A different species of Section 35 rights
Although modern land claims will be acknowledged as treaty rights under Section 35 of the Constitution Act, 1982 which “recognizes and affirms” existing aboriginal and treaty rights, they will be a different species of Section 35 right. The benefit of having rights recognized under Section 35 is that Canadian Courts have read Section 35 to protect Aboriginal peoples and their rights.

At present, under Section 35, courts interpret treaties so that
Ø ambiguous expressions in treaties are resolved in favour of the Indians;
Ø treaty provisions are given a fair, liberal and large interpretation;
Ø the honour of the Crown is assumed when interpreting treaties (Courts assume that the Crown intended to act honourably toward aboriginal peoples and with the best interests of the aboriginal peoples in mind, while entering treaties); and
Ø any suggestion of “sharp dealing” (unfair bargaining) is not sanctioned.
These principles of interpretation will be removed from modern treaties and therefore the protective features of Section 35 will not operate. Any common law rules with respect to aboriginal or treaty rights will be replaced by the provisions of the Agreement and it is anticipated that the federal government will need to pass legislation in order to override the common law rules.
Provisions in the new treaties which will remove common law protection may include:
Ø There will be no presumption that doubtful or ambiguous expressions or terms are to be interpreted in favour of any particular Party or Parties.

Ø The Indigenous group will agree that the Crown has no consultation obligations respecting the Section 35 rights of the Indigenous group other than those obligations set out in the Treaty.

Ø The Section 35 rights set out in the Treaty will be interpreted solely on the basis of the rights set out in the treaty, without any distinction based on whether the right is a [converted/modified/transformed/etc.] aboriginal right or a new treaty right.

Any common law rules which arise from aboriginal rights cases which impose a duty on the Crown to treat aboriginal rights in a certain way, will not apply if they are not set out in the Agreement. In Delgamuukw the Supreme Court suggested that the consent of the aboriginal peoples with title would be required before certain actions or measures could be taken if these actions would have the impact of interfering with aboriginal title and the traditional uses to which the Indigenous Peoples have put their lands.

The consent of an aboriginal group to actions regarding lands over which they have aboriginal title will not apply to the new treaties unless this is specifically set out in the agreement. And, in any case, the consent, or even involvement, of the aboriginal group will only apply to those specific tracts of lands identified in the Agreement. Under Delgamuukw, consultation, compensation and, possibly consent, are required for all lands which comprise the traditional territory and title lands of the Indigenous Peoples.

Although the rights recognized under the Agreement will be called Section 35 treaty rights, they will not be afforded the same protection as Section 35 rights held by other Indigenous Peoples. These are all eliminated through the wording of the Agreement and instead the legal rules surrounding contract interpretation will apply.

Reliance
The Agreements will set forth a broad number of “reliance” provisions in which the Indigenous group will agree to “indemnify” Canada and the province should any damage come to Canada or the province as a result of stray rights having survived the Agreement. This means that the Indigenous group agree to cover the financial costs to government in the event that they are sued as a result of the Agreement.
Federal and provincial legislation will be passed in order to pass this guarantee along to third parties. Federal legislation may also indemnify the province.

Who can treaty away aboriginal title?
Aboriginal title is a collective interest, which is held in trust by all members of an Indigenous Nation. As a collective interest held by each and every member of an Indigenous Nation, aboriginal title cannot be bargained or treatied away by anything less than the full consent of all the Indigenous Peoples who collectively hold this title. A majority vote (no matter how high the percentage) cannot give one group the ability to extinguish the title and rights of all of the Indigenous Peoples who hold title.

Canada and the province recognize the illegality of negotiating an agreement which purports to extinguish aboriginal title without the full consent of all of the Indigenous Peoples’ concerned. The collective nature of aboriginal title means that no Band or group of Bands/communities can treaty for Lands which belong to an entire Nation, or that no group of people within one Nation or Band/community has the right to treaty for the extinguishment of the aboriginal title and rights of those members of their Nation/community who do not give their full consent.

The legal uncertainty of the current process is heightened by the fact that Indigenous citizens are not fully or meaningfully involved or informed in the negotiations of modern land claims agreements. The collective nature of aboriginal title (which means that title is shared by all members of a Nation) creates an area of uncertainty about all treaties entered into without the full consent, knowledge and participation of each and every citizen of the Indigenous Nation. The same legal principle applies: “You cannot give that which you do not own.” No vote or ratification process is valid to authorize any group to enter into a treaty without the full consent of their people.
The province has proposed to deal with this area of uncertainty by exacting a legal promise from the Indigenous group that they have the right to enter into the Agreement on behalf of all of their people.

If individual Indigenous people do not agree with the terms of the Agreement and bring law suits in the future (claiming, for example, that parts of their traditional territories were not included in the settlement land, or that the Indigenous government had no right to extinguish their title over their traditional territory) the Indigenous group will agree that they will cover any costs to Canada and B.C. The result of this clause is that Indigenous peoples will be suing other Indigenous peoples and any dollar settlement will come from the Indigenous peoples themselves,not the government.

Compensation for Past Wrongs
Modern land claims agreements will represent the “full and final settlement” between the parties, including of past wrongs. The Indigenous group will agree not to pursue any legal claims against Canada or B.C. with respect to any past wrongs. The proposed wording is that
The Indigenous group will release Canada and British Columbia from any claims that it may have had prior to the Treaty regarding any interference or infringement of the Indigenous group’s Section 35 rights, and any claims under Canada’s “specific claims” policy.

The Supreme Court of Canada, in Delgamuukw, stated that aboriginal title has an economic component and that government will be liable to provide compensation in the event of an abrogation or breach of aboriginal title. This clause would preclude the Indigenous group from bringing any legal actions relating to compensation for the value of the lands and resources taken from their territories. Canada and the province will not have to pay compensation for their past extraction of resources (which is in the billions of dollars for most areas), or the spoilage of habitat, lands and resources which they have been responsible for. All past claims for compensation, and any future claims for compensation, are all reduced into the terms of the Agreement.

Breach
Modern land claims agreements will contain language in which all parties agree not to challenge the “validity or enforceability” of the Agreement. This means that if the Indigenous group in the future do not think that the Agreement was a fair deal, they have agreed not to go to Court to challenge it.

Certainty language will also require that the parties agree that if one or more parties breaches the agreement and do not keep the promises they made under the Agreement, the other Parties must keep their promises.
A breach of the Treaty by any Party will not relieve any other Party from its obligations under the Treaty.

Indigenous Peoples who have entered into treaties with Canada share the common complaint that Canada has steadfastly refused to honour the terms of the treaty or the promises it has made. Canada maintains that Indigenous Peoples have ceded their aboriginal title through treaties (and therefore that Crown title is absolute over those lands) while not honouring the promises which it made. This clause suggests that the Indigenous group may be forced to honour their agreements (ceding aboriginal title and rights to all areas not included under the Agreement) if Canada and B.C. do not honour the obligations they made. For example, if B.C. decides that it cannot afford to make the payments required under the treaty, or if it minimizes the co-management agreement provisions of the agreement, the Indigenous group will not get their lands and rights back.

Summary
The net impact of the “certainty” provisions sought by Canada and B.C. will be to create a double standard with regard to title and interests in the land. Canada, the province, and third parties have their rights and interests recognized and protected. These rights are not defined or in any way limited by the Agreement. The Indigenous group, on the other hand, have all of their rights reduced to the written word of the Agreement.

These certainty provisions are far more restrictive than any of the “extinguishment language” which has been used in other modern land claims agreements to date.

The goal of the Union of British Columbia Indian Chiefs is to support the work of our people, whether at the community, nation or international level, in our common fight for the recognition of our aboriginal rights and respect for our cultures and societies. Our goal, the goal of the people, has been to give the aboriginal people of BC a voice strong enough to be heard in every corner of the world. Read other articles by Union of British Columbia Indian Chiefs, or visit Union of British Columbia Indian Chiefs's website.

This article was posted on Saturday, March 12th, 2011 at 8:02am

CANADA STALLING on mediation: Six Nations

Natives accuse Ottawa of foot dragging
Won't agree to land-claims mediation: Six Nations

http://www.thespec.com/News/CanadaWorld/article/650491
October 09, 2009
Daniel Nolan
CALEDONIA - The Six Nations Confederacy is accusing Canada of stopping progress in talks to settle land claims because it won’t agree to mediation.

The Confederacy, appointed by the elected-band council in 2006 to conduct negotiations with Ottawa and Ontario, also says commitments by Canada to help fund Six Nations in order to create an “equal bargaining field” has not been forthcoming and it has had to lay off staff and rely on “the goodwill of our people to attempt to maintain a presence at the negotiation table.”

The statements were made by Confederacy representatives today at the conclusion of the latest round of land claim talks, which first began in May 2006 to try to resolve a dispute over the occupation by natives of a Caledonia housing project. It blossomed into other land claims, and saw Ottawa make two offers - $125 million and $26 million - to resolve different claims, but no agreements have been reached.

In the meantime, natives have halted development projects in Brantford and Hagersville because they say they’re being built on unsurrendered Six Nations land.

Ontario supports the idea of bringing in a mediator, but Confederacy spokesman Aaron Detlor said Canada has consistently blocked it. Names of judges have been proposed with no response, he said, and lately the name of Dr. Peggy Blair has been suggested. She is a leading lawyer in aboriginal affairs and completed negotiation skills training at Harvard Law in 1993.

“We need the assistance of a mediator-facilitator,” he said. “We have a fundamental disagreement about one party showing up at negotiations and saying ‘Here is the agreement. Take it or leave it.’ That’s not negotiating. They show up and say, ‘Here’s how we’re going to negotiate a settlement. You’re going to take what we’re going to offer and not ask any questions about it.”

Federal officials left before reporters could speak to them and could not be reached for comment later. A spokesperson for federal Indian Affairs Minister Chuck Strahl could not be reached for comment.

On the issue of financing, Detlor said the Six Nations team has been without any funding for the last six months. He said it has had to let go three people, such as a researcher, and plans to cut two more. They have suggested $1.2 million is adequate to help them with the ongoing negotiations.

“It diminishes (our ability to negotiate) significantly,” Detlor said about the cash shortage. “Ontario has seven or eight people and the feds have seven or eight people. We don’t have the same back office support they have of hundreds of people. We have five people.”

“It’s simply not fair to ask people to put their lives on hold in good-faith negotiations without any ability to feed their families.”

Detlor said talks have not broken off and the three sides are set to meet again next month.

“We’re committed to continuing talks and we’re hoping the federal Crown will see the light of day,” he added.

He wouldn’t say frustration by land claims supporters will lead to more demonstrations, but noted: “Significant business interest in this part of Ontario is on hold until we get a mediator-facilitator. People are not going to come here and invest in this area if we cannot get a simple agreement on a mediator-facilitator.”

'We keep getting blocked'
http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=2096313

The Haudenosaunee Development Institute went public with its complaints against the province and the federal government on Thursday, accusing them of delaying negotiations over land claims.

In a hastily arranged news conference after the latest table talk among the institute, Canada and Ontario, three HDI spokesmen announced the governments are balking at all their suggestions for a mediator-facilitator who could help move the process along and are refusing to assist with funding for natives who are engaged in the process.

"We have been working at getting a mediator-facilitator for four months," said spokesman Aaron Detlor, who is also a lawyer. "We keep getting blocked time and time again."

Detlor said the HDI has suggested various names, including Canadian judges, and has been open to input from the governments about who could be brought in to offer impartial advice on moving forward.

The terms of reference for a mediator-facilitator have already been agreed upon, so it's just a matter of selecting a person.

"We've tried to make a process where everyone can be satisfied and we get forced back by a federal crown with a message that's basically 'Our way or the highway'"
Additionally, no one working on the negotiation process has been paid for the last six months and Detlor said the HDI has had to lay off three of its five-member administrative staff , including a researcher, assistant and co-ordinator.

"It diminishes us."

Detlor said each of the governments shows up at the talks with seven or eight highly paid negotiators.

The lawyer also said the HDI is not halting the talks, but is hopeful people will demand their politicians push for more movement.

HDI's Mike Bomberry read a prepared statement saying the natives have lost good faith in the negotiation because of the approach Canada and Ontario have chosen to take, creating an "unfair bargaining field."

With no administrative funding support from Canada, the natives have relied on volunteer assistance at the negotiation table and have had to lay off staff .

"(We) may now be forced to shut down offices at the Oneida Business Park since it cannot aff ord the rent," said Bomberry.

Aboriginal Affairs Minister Brad Duguid, reached at the legislature in Toronto, said his instructions to negotiators have been to be as flexible as possible.

"We're enthusiastic supporters of bringing in a facilitator to try and trigger more progress in the talks," Duguid said.

"We continue to support the Haudenosaunee/Six Nations people and urge the federal government to show as much flexibility as possible to reach a consensus on who that should be."

The minister said he hasn't seen the names suggested as a facilitator, but he sees no reason why a suitable candidate can't be swiftly found.

Representatives from the federal and provincial government did not remain at the Oneida Business Park after talks today to offer comment.

In related negotiations, Brantford was back in court last week regarding its injunction against native protesters and was rewarded with a clarification from Justice Harrison Arrell that says the native protesters are prohibited from stopping work at the 10 development sites named in the original injunction.

The clarification seems aimed at the protests of Floyd and Ruby Montour who recently stopped work on Erie Avenue, along with a handful of supporters.

Meanwhile, Brantford police are investigating comments made on an Internet discussion board about the protesters.

One poster suggested the native protest could be stopped through a violent act and the Montours were asked to discuss their safety with police.

Copyright © 2009 Brantford Expositor

A model for Canada? Nicaragua titles native land

Nicaragua’s titling of native lands marks crucial step for indigenous rights – UN expert

Special Rapporteur James Anaya

17 December 2008 – An independent United Nations human rights expert has praised the Nicaraguan Government for giving the indigenous Awas Tingni community the title to its traditional lands, marking the culmination of a decades-long struggle by the group to gain recognition and protection of its ancestral territory.

“This affirmative step by the Government of Nicaragua represents an important advancement in the rights of indigenous peoples worldwide,” said the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya.

The Government, in a ceremony on 14 December, gave the Awas Tingni – one of the many indigenous communities that populate theThis affirmative step by the Government of Nicaragua represents an important advancement in the rights of indigenous peoples worldwide country’s Atlantic Coast region – the title to its ancestral territory, which consists of some 74,000 hectares of densely forested lands.

This affirmative step by the Government of Nicaragua represents an important advancement in the rights of indigenous peoples worldwide

The long-awaited move was several years in the making and follows a historic August 2001 decision by the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua.

The Court found that Nicaragua had violated the rights of the community by granting concessions to log within its traditional lands and for failing to recognize Awas Tingni property rights in those lands.

In its decision, the Court found that the right to property, as affirmed in the Inter-American Convention on Human Rights, protects the traditional land tenure of indigenous peoples.

“This was the first case in which an international tribunal with legally binding authority found a Government in violation of the collective land rights of an indigenous group, setting an important precedent in international law,” stated a news release issued by the UN.

Mr. Anaya, who was present at the ceremony, noted that the titling of Awas Tingni’s lands reflects a commitment on the part of the Nicaraguan Government to implement the judgment of the Inter-American Court.

“In addition, it provides a model for other Governments to comply with their international legal obligations to recognize and protect the rights of indigenous peoples to their traditional lands and resources in practice,” he stated.

Special Rapporteurs serve in an independent unpaid capacity and report to the Geneva-based UN Human Rights Council.

News Tracker: past stories on this issue

Indigenous Brazilians still suffering inequalities – UN rights expert

Supreme Court upholds provinces' duty to consult Indigenous communities

From the Press Release below: "Frontenac [the mining company, Frontenac Ventures Corporation] argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions.

The Supreme Court has now dismissed Frontenac's appeal, with costs."

_______________________

ARDOCH ALGONQUIN FIRST NATION (AAFNA) ARDOCH, ONTARIO CANADA K0H 1C0 613-479-5534 Honorary Chief: Harold Perry December 9, 2008 - For Immediate Release Supreme Court Upholds Decision Releasing Native Protesters Big Victory for Civil Rights In February, 2008 Justice Cunningham of the Ontario Superior Court sentenced Robert Lovelace, former Chief of the Ardoch Algonquin First Nation, to 6 months in jail because he refused to end his peaceful protest against uranium exploration on Algonquin land. The government of Ontario had refused to consult with the Algonquins before approving the aggressive exploration program in eastern Ontario. In addition to jail, Lovelace was fined $25,000; his community was fined $10,000 and Chief Paula Sherman, $15,000. A few weeks after Lovelace was jailed, six leaders of the Kitchenuhmaykoosib Inninuwg (KI) were sentenced on contempt charges for their peaceful opposition to drilling for platinum on their traditional lands in northern Ontario. Judge Cunningham ignored all of the arguments made by the Algonquins' lawyer on the need for the Court to enforce the government's obligation to consult. Cunningham said the only thing he was interested in was enforcing the rights of the mining company to blast and drill, and that he would jail any protesters who opposed the illegal exploration. On May 28, 2008 a three member panel, the Ontario Court of Appeal, overturned the sentences and freed Lovelace and the KI 6. In their decision the Court blamed Ontario's "sweeping" Mining Act, which allows mining companies to conduct aggressive exploration, including removing trees, blasting, drilling, trenching and the construction of roads on First Nations' land, without any consultations or environmental assessment. The Court also criticized the McGuinty government for ignoring repeated requests by the Algonquins for consultations and instead supporting the jailing of Mr. Lovelace and the punitive fines imposed on the community and its leaders. The Court of Appeal also expressed serious concern that Justice Cunningham ignored numerous Supreme Court decisions which require governments to consult with affected First Nation communities before approving industrial activities which could affect their rights. The Court said that Cunningham should have ensured that Ontario had consulted with the Algonquins before ordering them to end their protest and then jailing them when they continued to demand consultations in defiance of his injunction. The mining company, Frontenac Ventures Corporation, applied to the Supreme Court of Canada for leave (permission) to appeal, arguing that the Court of Appeal's decision amounts to a "license to blockade". Frontenac argued that the Canadian mining industry could collapse if the Supreme Court did not overturn the Ontario Court of Appeal's "lenient" approach to Aboriginal blockades and injunctions. The Supreme Court has now dismissed Frontenac's appeal, with costs.

"This is an important victory for civil rights and the rule of law" said Robert Lovelace.

"The government will no longer be able to ignore its legal responsibilities while we are jailed for trying to uphold the law. We will continue to resist uranium mining and exploration and we call on the government to finally begin consultations with us so that further conflict and litigation can be avoided. We do not understand why they continue to refuse to consult with us in spite of several court orders." Court of Appeal decision:

http://www.ontariocourts.on.ca/decisions/search/en/OntarioCourtsSearch_VOpenFile.cfm?serverFilePath=D%3A%5CUsers%5COntario%20Courts%5Cwww%5Cdecisions%5C2008%5Cjuly%5C2008ONCA0534%2Ehtm

For more information, call: Robert Lovelace: (613) 532-2166 or Chris Reid (lawyer): (416) 629-3117.

----------------------- *If you re-print, copy, archive or re-post this message, please retain this credit. =-=-=-=-=-=-=-=-= UBCIC's Protecting Knowledge Conference site: http://www.ubcic.bc.ca/Resources/conferences/PK.htm

From: First Peoples Human Rights Coalition <info@firstpeoplesrights.org>

*****

Once again, the Supreme Court has upheld the right of Indigenous Peoples to be consulted about any proposed uses of their traditional lands, and to have their land rights accommodated, and it is also their right to say "No" to development.

In Ontario, this legal battle played out between Frontenac Ventures (uranium prospecting company) and the Ardoch Algonquins in eastern Ontario, in the context of mining, the most powerful industry in Canada with the most invasive rights. The Mining Act gives prospectors (speculators) the right to option and stake rural land ... any land, private or 'public', Indigenous or not, yours or mine ... damaging and destroying natural habitat, backyards, contaminating entire watersheds, etc. Homeowners and Indigenous Peoples alike had no recourse to stop this.

Now Indigenous Peoples can legally stop the destruction of their traditional lands. They can block exploration, construction, etc. that is occurring without their agreement. An injunction against them cannot be granted, as in the past, (notably, Caledonia) if the Crown has not fulfilled its duty to consult with them about the land use.

A ruling of the Supreme Court is law in Canada, and applies to other similar situations where either Aboriginal title ('land claims') or Aboriginal rights (traditional Indigenous lands) may apply. RECAP: What does this court decision mean for Six Nations and Brantford? Today's news release, the Supreme Court dismissing Frontenac Venture's appeal, has direct application to Six Nations and Brantford. In my understanding, Six Nations Confederacy people have prevented several housing/industrial developments in Brantford, on land that is currently either under claim with title to be negotiated with the federal government, or is traditional Six Nations land where they hold Aboriginal rights. Federal negotiations are currently in progress on 28 Six Nations claims, with an offer for one (Welland Canal lands) currently on the table. Negotiation of the Brantford claims will not occur any time soon: The average time for the federal government to settle one simple specific claim (like the Welland Canal) is 10 years; complex, comprehensive claims, like Six Nations overriding claim to the Haldimand Tract, typically take at least 30 years. Thus, federal negotiations provide no solution for the current development issues in between Brantford and Six Nations. The provincial government issues approvals for development at the request of municipalities. The Ontario provincial government and bureaucracy studiously ignore both existing land claims for Aboriginal title, and Aboriginal rights on traditional Indigenous lands, thus evading the clear and repeated rulings of the Supreme Court that the province must consult with Indigenous Nations prior to issuing any land use approvals:

2005

http://www.lawsonlundell.com/resources/TheCrownsDuty.pdf

Recent case law from the Supreme Court of Canada (Haida and Taku) has confirmed that the Crown has a duty to consult, and if necessary, accommodate Aboriginal interests when it has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.

Ontario has not consulted, but blunders ahead with development in violation of Canadian law. Many Canadians I have spoken to about this situation are in disbelief at this blatant flaunting of the law by our provincial governments. Canadians have blind faith that our governments obey the law, as we are all expected to do. It is almost unbelievable to us that the Ontario government would risk dissension, confrontation and violence this way, but in fact, this is exactly what our provincial government is doing: 'Caledonia' could have been prevented if Ontario had consulted before issuing development approval for Douglas Creek Estates. Because of this undeserved 'blind faith' of Canadians, our governments are running rampant over the rights of Indigenous Peoples, while convincing the public that it is the Indigenous Peoples blockading developments who are disobeying the law. Not so: Indigenous Peoples preventing development are in fact upholding Canadian law, demanding that the province "consult, and accommodate" their rights, as the Supreme Court has ordered. In May 2008, the City of Brantford requested an injunction from the court to stop Six Nations from blocking construction. The judge in Ontario Superior Court in Brantford adjourned the injunction hearing (to a later date), but imposed terms amounting to an injunction:

http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Ontario+-+Superior+Court+of+Justice&path=/en/on/onsc/doc/2008/2008canlii30282/2008canlii30282.html

Pending the return of the motion for an interlocutory injunction pending trial, the defendants are ordered to cease and desist from blocking, interfering or in any way obstructing development/construction related activities on the lands set out in Schedule A to the Notice of Motion including blocking access to development sites, standing in front of machinery/equipment or otherwise interfering with such machinery's/equipment's operation or in any way threatening or intimidating workers at the development sites.

While waiting for the permanent injunction hearing to be held, Six Nations people continued to block the developments, on one occasion confronted by cement trucks trying to push past them. Police made arrests, based on the 'temporary' injunction. Confederacy Chiefs and Council toured the lands in question to make their intentions clear. Police have continued to arrest Six Nations people on and near these sites, though developers have pulled out and development appears to be at a standstill. In July 2008, the Ontario Court of Appeal (OCA) ruled on the similar case regarding the legality of Frontenac Ventures injunction against of the Ardoch Algonquins:

http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdf

[48] Where a requested injunction is intended to create "a protest-free zone" for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, "The John Doe Injunction in Mass Protest Cases" (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

To emphasize, the Ontario Court of Appeal ruled that before granting an injunction against Aboriginal people ...

"the court must ... ensure that ... the Crown has fully and faithfully discharged its duty to consult". Frontenac Ventures appealed this OCA ruling to the Supreme Court, and the Supreme Court has now upheld the above ruling. The Crown in Ontario has not consulted with Six Nations about any of the developments that it already approved in Brantford. In fact, Dalton McGuinty specifically told developers in the Haldimand Tract not to consult with Six Nations, although many were quite willing to negotiate agreements with the Confederacy, and some already did. The implication of this most recent Supreme Court ruling for Six Nations and Brantford is this: When the injunction hearing resumes in Brantford (Dec 22-23) it is clear that the court must dismiss the City's injunction request. No doubt the court will also 'remind' Ontario that they must consult with Six Nations before issuing any development approvals in the Haldimand Tract. The police will no longer have any responsibility, any ability to detain, stop, arrest Six Nations people who are blocking development. In other words, the implications for development in the Haldimand Tract may be monumental. The implications for Six Nations are pure victory, total vindication of what they have been saying all along: Development within six miles of the Grand River cannot proceed unless the Haudenosaunee Six Nations Confederacy agrees. The court hearing for the City of Brantford's request for injunction against Six Nations is scheduled for Dec 22-23 (to be confirmed) in Brantford Superior Court. In other news about "duty to consult" ... http://www.theenergynews.com/news/cp_article.php?storyid=4051 EDMONTON _ An aboriginal band has threatened the very basis of Alberta's oilsands industry by filing a court challenge to the province's system of granting land tenure. ... "It is deeply troubling to our First Nation that Alberta has granted these tenures within our traditional lands and set the stage for exploration and potentially massive oilsands production without any consultation with our First Nation before the grants of tenure." --- Canada's economy is entirely dependent on resources taken from traditional Indigenous land, without consultation, without accommodation, without compensation, without consent, and without any 'good faith' on Canada's part. The Supreme Court of Canada no longer allows this. Canada's police cannot stop Indigenous Peoples from blocking development, mining, logging ... I've thought for a long time that Canada has to face the truth. I can't see how our governments can ignore it now. Economics dictates that agreement must be sought, rights must be respected, and peace and rule of law must be restored. Throughout our history Canada has always used force ... violence ... incarceration ... to squash Indigenous demands for justice, justice now far too long dismissed, denigrated, denied. The Supreme Court has just closed the door on Canada's use of force against Indigenous Peoples upholding their land rights, because they are breaking no laws. granny

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

So, why are the aboriginals now showing interest in the territory they ceded? From a random source:

The 1850 Robinson Huron Treaty says the following. "THAT for, and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada, to them in hand paid, and for the further perpetual annuity of six hundred pounds of like money, the same to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each year, of which due notice will be given, at such places as may be appointed for that purpose, they the said Chiefs and Principal men, on behalf of their respective Tribes or Bands, do hereby fully, freely, and voluntarily surrender, cede, grant, and convey unto Her Majesty, her heirs and successors for ever, all their right, title, and interest to, and in the whole of, the territory above described, save and except the reservations set forth in the schedule hereunto annexed; which reservations shall be held and occupied by the said Chiefs and their Tribes in common, for their own use and benefit." That was a lump sum of two thousand pounds and a perpetual annuity of six hundred pounds British money. ... So, why are the aboriginals now showing interest in the territory they ceded?

Well anonymous and others who wonder ... wonder no more. Look in the treaty for the answer: "a lump sum of two thousand pounds and a perpetual annuity of six hundred pounds." Now where is the government's accounting for those funds? Were they ever paid? Hmm? (Hint: Not bloody likely!)

Aboriginal Canadians: Collaboration or Confrontation?

by Robert Laboucane

In Canada today there exists an environment of confrontation between our Federal government, some provincial governments and most Aboriginal people. For some unexplained reason this status quo has been maintained and allowed to continue by successive governments for the past 300 years. I can tell you that industry; individual citizens and international investors are finding this circumstance unacceptable and are insisting on a climate of collaboration, co-operation and community.

... Ultimately, Canadians must realize that the Aboriginal community is a major stakeholder (rights holders) in the social and economic wellbeing of our nation’s future. ... I wonder how much information is being shared with these “new” newcomers to Canada about our (sic) Aboriginal people. I have asked and the answer is a polite shrug of the shoulders.

http://www.agoracosmopolitan.com/home/Frontpage/2008/09/15/02602.html

In survey after survey, 76% of Canadians acknowledge they know next to nothing about the history, circumstances, issues and challenges facing Aboriginal peoples in Canada, and another 5% acknowledge they know absolutely nothing about Canada’s Aboriginal citizens. With over 250,000 new immigrants coming to Canada each year and 10’s of thousands of “visiting employees” being recruited each year due to a current labour crisis, I wonder how much information is being shared with these “new” newcomers to Canada about our Aboriginal people. I have asked and the answer is a polite shrug of the shoulders.

This lack of understanding between cultures and about diverse Aboriginal cultures -- in a country that prides itself in the eyes of the world on being multicultural -- has led to ignorance, stereotyping and full-blown racism. The isolation, separation, segregation and marginalization of Aboriginal peoples by geography, law, legislation and policy is an ongoing and ineffective process that must end. And end soon.

In Canada today there exists an environment of confrontation between our Federal government, some provincial governments and most Aboriginal people. For some unexplained reason this status quo has been maintained and allowed to continue by successive governments for the past 300 years. I can tell you that industry; individual citizens and international investors are finding this circumstance unacceptable and are insisting on a climate of collaboration, co-operation and community.

I guess we are just going to have to learn more about whom we wish to partner with so lets begin. Industry expects their service providers to be bringing added value to the table regarding advice on how to work with their new Aboriginal community partners.

The terms Aboriginal, Native and Indigenous refer to the same group of people, but all of these diverse groups are most often referred to as ‘Indians’. I, for example, am an Aboriginal person born here and living in Canada – but I am not an Indian. Just as some of you may be of European heritage but are not Austrian.

This mistake in terminology is only one example of a strong need for much more Aboriginal awareness education. It should be understood that the term ‘Indian’ is not politically correct and with many down right offensive as it refers to people from India rather than Canada’s founding peoples. Many other cultures have varied language to refer to their first citizens; such as Aborigines in Australia and the Maori of New Zealand.

Imagine what the Indigenous people of the Americas would be called if Christopher Columbus would have been looking for Turkey rather than India! Why we would have a “Turkey Act” and a “Minister of Turkey Affairs”.

There are three groups of Aboriginal people in Canada: First Nations(Indians),Métis and Inuit. The majority of the 50,000 Inuit lives north of the tree line in Canada’s Arctic, and make up the majority of residents in Inuvialuit, Nunavut, Nunavik and Labrador.

Of the 400,000 Métis in Canada, most are located in the four western provinces and have representation in every part of Canada. They are of mixed heritage, usually descendents from First Nations who intermarried with early European settlers. Their homeland consists of traditional territories stretching from Ontario to B.C., north over the 60th parallel and south into the states of Montana and North Dakota. They have the same Aboriginal rights on the land in these areas as the First Nations and must not be ignored.

They are indeed a bona fide stakeholder in rights on the land and must be consulted as well, not just First Nations of which the Métis and Inuit are not a part of.

The three categories of ‘Indians’ are broke into three divisions – status, Bill C-31 and non-status. Status ‘Indians’ are registered in the Indian Registry, which is maintained by the federal government’s Indian and Northern Affairs department (INAC). These status ‘Indians’ are the only Aboriginal group that are members of an ‘Indian band’ or tribe, and are the only Aboriginal group of people in Canada that are referred to as First Nations. These people are governed by the antiquated, race-based legislation called the Indian Act.

The 640 separate Aboriginal governments in Canada are governed by elected chiefs and councilors, most are represented nationally by the Assembly of First Nations, an umbrella group whose present political leader is Grand Chief Phil Fontaine.

There are about 690,000-registered status Indians in Canada, although since 1985 an additional 117,000 names have been added to this number as a result of Bill C-31. This federal statute allowed those Aboriginal people who had lost their status, Aboriginal and treaty rights and benefits to make application to become ‘Indian’ again.

These new ‘registered Indians’ received a reduced bundle of benefits than their existing “status” relatives, and since their creation by the federal government they are quickly becoming an endangered species. Most of them will all disappear in a short time frame of two generations, due to the limits imposed by Ottawa. For a current up-date you might want to Google ‘The McIvor Decision” of the B.C. Supreme Court (June 2007).

Of these First Nations (registered status Indians) people, 60 per cent live off reserve and the migration to urban centres continues at a torrid pace. Many First Nation people are simply trying to get out from under the yoke of the repressive and controlling Indian Act. Just 60 per cent of the First Nation (registered status Indians) populations are actually treaty ‘Indians’. The other 40 percent are registered status Indians but are not treaty. Those band members off reserve can still vote for Chief and Council.

The Indian Act is blatantly out of step with the modern realities of the Canadian legal system just as many claim the Mining Act is also seriously flawed for today’s realities. This degrading Indian Act singles out First Nations people and gives control of their lives and communities to the Minister of Indian and Northern Affairs, and other government officials. First Nations women on reserve do not have even basic property rights, because of the Indian Act imposed upon them. These same people are not afforded access and protection under the Canadian Human Rights Act either. Does the “rule of law” apply equally to all Canadian citizens?

I find I must disagree with many deluded and misguided judges rendering decisions today based on this supposedly "fair" concept. This is putting many mining companies and some provincial governments in very precarious situations. Efforts to build positive respectful relationships with those very Aboriginal communities who are about to become their new corporate partners are being put in jeopardy.

Many First Nations people wish the Indian Act would be abolished, because it violates normal standards of equality and freedom. It has been referred to as an “apartheid law” that has led us to nothing less than a national social disaster – and encouraged the “us verses them” mentality.

About 50 per cent of First Nations people are under 23 years of age and many young people leave the reserve looking for better living conditions, better health services, educational facilities and employment opportunities. They want to leave behind the destitution, crime, poverty and despair that fill so many lives on the reserve. Unfortunately, they are also leaving their family members, elders, their languages and their cultures.

In urban centres such as Edmonton, Winnipeg and Calgary, about 20 per cent of the homeless population are Aboriginal people. They have chosen to live a hand-to-mouth existence on the streets – homeless – instead of on reserves due to the physical isolation and lack of opportunities in their remote and impoverished communities.

Since 1995, the federal government has spent $100 billion of Canadian taxpayer’s money on roughly half of the Aboriginal population. This money comes from 33 federal departments, plus INAC, and there are very few measurable indicators that circumstances and the quality of life of Aboriginals has improved.

Many First Nations leaders tell me they only receive 20 per cent of this money, yet an INAC official wrote to me and confirmed that Ottawa gives 82 per cent of its allotted funding to First Nation government’s with another nine per cent going to provincial governments. The Congress of Aboriginal People, in a recent report I received, shows 6,199 grants and contributions to 2,054 recipients from 30 federal governments departments for a total value of $5,606,665,491.00 Billion dollars. I have not been able to determine if this funding is calculated into funds allocated to First Nations governments. I also received a listing of 293 pages of recipients. The fact that accounting for “grants” is not required seems rather strange if not down right ludicrous.

Contributions on the other hand do require accounting but how do we know if anything is being achieved? What, if any, are the measurable outcomes and benefits of all this spending? Is anyone asking any questions about this? Will any funding recipient step forward and reassure Canadians that we the taxpayers are getting a reasonable return on our investments?

Why as Canadians can we not get a satisfactory explanation of these disturbing numbers, especially when so many billions of dollars are being spent each year? Could it be that we just don’t know enough about the subject to be able to even formulate a reasonable question?

One must remember that every time someone leaves the reserve, the cost and obligation of the federal government for each of those individual is reduced by about 80%. What would motivate the federal government to make things better on reserves? Aboriginal leaders tell me the on-reserve population is continuing to grow despite the number of people leaving. We know that from the Department of Indian Affairs spending reports that for every $8.00 spent on reserves only $1.00 is spent on services to those 60% of the band membership that lives off reserve. Seems a little backward to me.

The deteriorating circumstances include grinding poverty, tainted water not suitable for drinking or bathing in more than 100 communities at any given time, major housing crisis, loss of language, extreme crime rates, rampant health epidemics, youth suicide rates eight times the national average. For Inuit youth, living in the remote and rugged Arctic, the suicide rate is 40 times the national average.

It’s incomprehensible that are we not demanding that our governments deliver action rather than words. For those mining companies with assets on or under the land and are embarking on a journey of consultation and relationship building you really must understand the environment you are going into. As well, learn who these Aboriginal people are. Why they are where they are and how did they get to where they are socially and economically. You should know them as well as they know you. Being able to show your new partner that you have actually taken some time and made an honest effort to know a little about them is a clear demonstration of respect on your part and an excellent way to start your long term relationship…just like any other serious courtship, remember!

Ultimately, Canadians must realize that the Aboriginal community is a major stakeholder (rights holders) in the social and economic wellbeing of our nation’s future. We must work together to create a country that respects and cares for all of its citizens, no matter what culture, race or heritage and I believe the whole business community has a very important role to play in ensuring we maintain peace in valley.

About the writer:

Robert Laboucane, president of the Calgary, Alberta--based Aboriginal awareness company Ripple Effects Ltd. (www.ripplefx.ca), works with over 600 companies, organizations and governments to promote better understanding of Aboriginal citizens in the workplace.

Six Nations, Brantford Calnan's bid to end conflict hits roadblock Native activist unimpressed by councillor's attempt to broker peace

Calnan said he was approaching Powless as a good neighbour and asking him to do his part to end the conflict. But Powless wasn't impressed. "We can't eat the fish, we can't breathe the air and we can't drink the water," Powless said. "As a good neighbour, I'm kindly asking you not to s---on my kitchen table." ... "But no one can get financing from the banks," Calnan said. "Bankers are not willing to provide financing because of all the conflict. This (conflict) is driving investment away." "Really," Powless said. "Well, if that's the case, then I'm doing the right thing. I'm halfway there."

BRANTFORD A city councillor's bid to end the conflict between Six Nations and Brantford was met with disdain on Friday. "I hope when the media write this up they will say that he was belittled and humiliated here," Steve Powless said after speaking with Coun. James Calnan. "If he wants to get on his soapbox he should do it somewhere else, not on my land." Powless, of the Six Nations Men's Fire Council, listened and spoke with Calnan when the city councillor approached him at his new home, a teepee across from the King and Benton construction site. He had been living in a teepee at the site of the Hampton Inn project in the city's northwest business park. However, he was arrested on the weekend and charged with mischief and breach of a court order. Powless was released on bail on Tuesday and, as part of the conditions of his release, he was ordered to stay at least 1,500 metres from several construction sites including those on Fen Ridge Court. King and Benton's $500-million Oak Park Road project was not included in the bail conditions. On Friday, the councillor visited Powless as part of an initiative to confront those who, Calnan believes, are standing in the way of peace and prosperity. Calnan, who had invited the media to attend the meeting, asked Powless to explain his actions and said that the current conflict can only lead to more turmoil in both communities. Development, Calnan told him, benefits both communities because it generates jobs for people, enabling them to feed and support their families. Calnan said he was approaching Powless as a good neighbour and asking him to do his part to end the conflict. But Powless wasn't impressed. "We can't eat the fish, we can't breathe the air and we can't drink the water," Powless said. "As a good neighbour, I'm kindly asking you not to s---on my kitchen table." Instead of developing land, Powless said businesses should move into existing buildings that are now vacant. "But no one can get financing from the banks," Calnan said. "Bankers are not willing to provide financing because of all the conflict. This (conflict) is driving investment away." "Really," Powless said. "Well, if that's the case, then I'm doing the right thing. I'm halfway there." Besides, Powless added, the jobs that will be created by development will only pay $10 an hour. People cannot support families on that, he said. All development does, is proliferate greed, he added. But Calnan again suggested that people in both communities will suffer if they can't find a way to work together and development comes to a halt. Calnan's suggestion that the people of the Six Nations are suffering because of the conflict and will go hungry didn't sway Powless either. He asked Calnan if he had been down to the Six Nations recently. The people at Six Nations, he said, are doing fine and look very well-fed, Powless said. Powless then started to explain how the people of Six Nations have a long history of helping white people. "We took pity on you when ... ." Powless said. "But we took pity on you, too," Calnan said. "When, when have you ever taken pity on us?" Powless said, adding that native people have been lied to far too many times over the years. Native people have been the victims of too much lying and conniving, he said. At that point, Powless walked away from the meeting with Calnan. The verbal sparring ut(?)... Powless left the area to speak with others and stand beside a campfire. Calnan explain that development is needed to ensure that both communities prosper and that development must be done in a way that protects the environment. He also talk about how both communities including the Six Nations will suffer if development isn't allowed to move forward. "Look, (Powless) went to jail," Calnan said. "And I'll go to jail again," Powless retorted from a distance. Calnan speak to others at the site, some of whom gave him credit for at least coming to see and speak to them. Protests at construction sites and the city's response have been a controversial topic in most circles and Calnan has been at the centre of the storm on at least a couple of occasions. At one point, all Brantford city councillors supported seeking an injunction that would bar native protests at construction sites in the city. However, Calnan, to the consternation of some of his council colleagues, broke ranks and began publicly questioning the strategy. He then suggested that development be frozen on city lands under claim by Six Nations.

Copyright © 2008 Brantford Expositor

© 2008 Brantford Expositor

Six Nations, Brantford: Court

HDI had previously presented a motion to the court to have one judge appointed to hear all the motions related to the case. This motion was accepted by the court and the Chief area Justice will appoint a Judge for this set of actions which will likely take place next week.

Friday, September 5 2008 Today the court was in session regarding the Brantford Contempt Motion against a number of Six Nations residents with Justice Arell presiding. As you will recall there was a notice placed in the Brantford Expositor related to this case:

Notice to: Butch Thomas, Clyde Powless, Steve Powless a.k.a. "Boots", Kevin Isaacs a.k.a. "Whodat", Dick Hill, Dwayne Maracle, John Garlow and "Runs-through-the-fire" a.k.a. "Mega-Death". A case for civil contempt has been started against you in Ontario Superior Court at 70 Wellington Street, Brantford, Ontario. The next court date is Friday, September 5, 2008 at 10:00 a.m. You can get more information about this case from the court office at 70 Wellington Street in Brantford under Court File No. CV-08-334. You may also get information about this case from Fasken Martineau DuMoulin LLP, 66 Wellington Street West, Box 20, Toronto-Dominion Centre, Toronto, M5K 1N5, Attention: Neal Smitheman. If you do not come to court on September 5, 2008, an order that affects you and your rights maybe made without you and be enforced against you.

The lawyer for the City of Brantford had copies of the Contempt Motion in the court today and pointed out to the court that Clyde Powless was in the court at which time Clyde stepped up to the bar. The other accused were paged by the court but nobody else showed up in the courtroom even though Ruby Montour had been there earlier on in the morning. The lawyer for the City tried to hand the Contempt Motion document to Clyde at which point he stepped back and told the court he was a member of Six Nations who were negotiating Land Claims and that he was concerned that taking the document would constitute service and he was not going to accept service. He was asked for his address and refused to give his address. HDI then offered to the court to have the Motion document delivered to the HDI offices on the reserve. Justice Arell pointed out to Clyde that even if he does not want to accept service it is in his best interest to accept the Motion document so he can familiarize himself with the charges he is accused of committing. At that point Clyde accepted the document. The City lawyer noted that nobody else paged was in the court. HDI had previously presented a motion to the court to have one judge appointed to hear all the motions related to the case. This motion was accepted by the court and the Chief area Justice will appoint a Judge for this set of actions which will likely take place next week. Although HDI had this motion accepted the City demanded and received that all hearings would be in Brantford which means any motions or actions that HDI had initiated in Toronto will be moved to Brantford. No date has been set yet for the next session. ______________ Background ...

Injunction hearing set for December http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1141026 Lawyers representing the Haudenosaunee Development Institute want a judge to hear the city's application for a permanent injunction. ... They're hoping to work with the city to find an earlier date to hear the injunction. ... Strezos said they filed the motion in light of a decision in favour of native protesters in Frontenac County. They believe the judge's ruling in that case will mean the city's application for an injunction will be overturned.

Note that all contempt charges relate to the City's temporary injunction, while a real injunction will be denied. Thus, it is to be hoped that the injunction hearing can occur before the contempt charges.

City ordered to serve notice to protesters again Brantford Expositor, Canada - Aug 23, 2008 The other protesters named in the action -- Butch Thomas, Clyde Powless, Kevin (Whodat) Isaacs, Dwayne Maracle and Runs Through the Fire -- have not been ...

Matter delayed after judge 'not impressed' Brantford Expositor, Canada - Aug 16, 2008 None of the eight named in the city's legal action -- Butch Thomas, Clyde Powless, Steve (Boots) Powless, Kevin (Whodat) Isaacs, Dick Hill, Dwayne Maracle, ...

Brantford takes legal action against protesters Sarnia Observer, Canada - Aug 9, 2008 15 include Butch Thomas, Clyde Powless, Steve Powless, Kevin Isaacs, Dick Hill, Dwayne Maracle, John Garlow and Runs Through The Fire. ...