Canada: Aboriginal and Treaty Rights

Canada’s economy is totally dependant on stealing our assets – the resources that we hold in trust for our coming generations. That has to be the main reason why the “white” settler states have refused to sign the United Nations Declaration on the Rights of Indigenous Peoples. This ploy does not get them off the hook. They’ve signed all sorts of treaties and accords agreeing that humans are equal. They have to start doing this in practice.

BRITISH COLUMBIA HAS TO RESPECT TRADITIONAL GITANYOW GOVERNMENT - How Wii’litswx put “ the Crown” in its place! JUDGE TEKASTIAKS SAYS, “RIGHT ON!” MNN. Aug. 31, 2008. Canada is a colonial state and Canadian law is topsy turkey! The Indigenous hurricanes are coming. The Canadian levee has been breached. One of the last judgments of Madam Justice Neilson at the Supreme Court of British Columbia admits that the traditional Gitanyow government and social order has to be respected. Judge Neilson has just been promoted to the British Columbia Court of Appeal. There’s no doubt now. Her reasoning should stand unless Canada torpedoes it with another fit of the D.T.s [delirium tremens]. Why did this happen? The colonizers rely on the same earthly elements as we Onkwehonwe. The environment’s in a shambles. The air is polluted. So is most of the soil. We’re living on the last 10% of the fish in the oceans. We’re using up oil, gas and lumber like there’s no tomorrow. Everyone’s scared. Some members of colonial society are starting to wake up. If their destructive mania does not stop soon, we’re all doomed. Let’s take a look at Judge Nielson’s reasoning in Wii’litswx v. British Columbia (Minister of Forests) [2008 BCSC 1139].(You can find the full text by Googling “Canlii”). What did she do when the B.C. Ministry of Forests gave out timber licences on Gitanyow land without Gitanyow consent? Our nationhood has been violated by illegal timber licences ever since 1888 when Britain’s Privy Council decided St. Catherine’s Milling and Lumber Company v. The Queen. The colonizers didn’t consult the Saulteaux before deciding that the right to timber licences on Saulteaux national territory belonged to Ontario’s provincial government, not Canada’s federal government. As if! Neither colonial government had a right!! Britain’s Privy Council specifically said that it was not determining “the precise quality of the Indian right”. The colonizers relied on a legal delusion. They pretended that “Indians” had only a “personal and usufructuary right dependent upon the goodwill of the Crown”. What? We never heard of the Crown before contact. Our rights don’t depend on the Crown that came to town! St. Catherine’s Milling implicitly gave Ontario permission to manage Saulteaux resources. This was illegal. There was no explanation as to how the British Crown got jurisdiction in the first place. But the colonizers went crazy and their scramble for Indigenous resources escalated. The colonial pillage has continued for over a century. A few Canadian judges are beginning to come to their senses. They have finally recognized that we were here first. Wow!!! They finally found their glasses!!! The Supreme Court of Canada decisions in Haida Nation v. British Columbia [2004 SCC 73 (CanLii)] and Taku River Tlingit First Nation v. British Columbia [2004 SCC 74 (CanLii)] are still trespassing wholesale, but they have finally recognized that there is a “duty to consult” us before they take our stuff. (We’ve been saying this all along). Canada’s economy is totally dependant on stealing our assets – the resources that we hold in trust for our coming generations. That has to be the main reason why the “white” settler states have refused to sign the United Nations Declaration on the Rights of Indigenous Peoples. This ploy does not get them off the hook. They’ve signed all sorts of treaties and accords agreeing that humans are equal. They have to start doing this in practice. Wii’litswx gets down to the nitty-gritty. It forces them to take a first step. The text on Canlii is long and tedious. “Chief Justice Lamer described the import of s.35(1)…blah, blah,blah”; “The difference between the TSA and the TFLA is…blah, blah, blah”, “Sections 16.3 and 16.4 acknowledge that…blah, blah blah”. It’s got lots of quotes about Whereas, LUP, MoF, GFA, SRMP. 45 pages of dense bureaucratese!! You have to wonder. How did the Gitanyow manage the forest and turn it into an internationally coveted resource without using a single sheet of paper? Judge Nielson pointed out that there was “a long and troubled history of over-logging and unfulfilled silviculture obligations on Gitanyow traditional territory”. The Crown agreed that it had “a duty to meaningfully consult with the Gitanyow in good faith and to reasonably accommodate its concerns and interests”. It ignored them. As the judge said, “Meaningful consultation and accommodation” is more than just “thorough discussion”. She found that the Ministry of Forests should have come up with a plan “endorsed by the Gitanyow”. We can’t agree with her here. It is Gitanyow territory. It’s their right to decide whether foreign corporations can cut their trees. Judge Neilson recognized that the Gitanyow thought that ratification by their “Heredetary Chiefs” was essential. She said the Ministry of Forests could not issue the forestry licences without their opinions. This is confusing. British Columbia can’t prove its jurisdiction. It’s Ministry of Forests doesn’t have authority to issue any licences at all. Wii’litswx did not discuss why the government of British Columbia was giving licences to lumber companies that extract rare resources for private benefit. It disregarded the needs of the people who actually live in British Columbia. However, Judge Neilson did discuss the stumpage fees that are paid to the provincial government by the corporations for the trees cut. The evidence showed that the Gitanyow claimed 50% of these fees. The Ministry of Forests’ tried to get away with paying a few hundred thousand dollars, using their own per capita formula. Judge Neilson did not accept their idea that this was “economic accommodation”. She’s was right on here! From a Haudenosaunee perspective, Wii’litswx has a few good points. It is also disappointing. Why should the Gitanyow have to negotiate with a bunch of in-migrating colonists for “the right to harvest wood for domestic purposes”? It is their land and their wood!! Judge Neilson did recognize that the Gitanyow’s clan-based Wilp system and boundaries are “an integral and defining feature” of their society. She supported the Gitanyow’s right to decide for themselves how to structure their laws and institutions. This is a departure from the Supreme Court of Canada’s practice of setting out good principles at the beginning and violating them in its final decision. Like when it says ambiguities should be determined in favour of “the Indians” and then decides that these same “Indians” don’t know how to interpret their own culture. It’s time for the colonial junkies to kick their thieving habits. “Most are so stoned they’ve hit rock bottom and don’t even know it!” [A quote from Judge Tekastiaks “She-calls-it-like-it-is”]. Judge Neilson pointed out that recognition of Indigenous economic rights would have “wide-ranging repercussions for all citizens of British Columbia”. The joint planning process required is “evolutionary and long-term”. But if they don’t respect our rights, they are going to kill themselves. She did not quash the illegal licences. The Gitanyow had already agreed to let the licensees continue to operate. [Band council sell outs again!] Judge Neilson invited further submissions on what to do. The traditional people can file a written objection to the Court. In effect, the judge has already invited them. Back here on Kanienkehaka territory, we are in another world with rotten and out-dated judicial reasoning. Wii’litswx relied on Mitchell v. Minister of National Revenue [2001, SCC 33 (CanLii)] for the false idea that the Canadian Constitution aims to reconcile prior Indigenous occupation with “the Crown’s assertion of sovereignty”. This can’t be reconciled. There is no proof that the Crown’s sovereignty is legitimate anywhere. Mitchell was decided before Haida and Taku. It said nothing about how we were not consulted on the invention of Canada or the phony border that divides Akwesasne. It concludes that even though the people of Akwesasne were living on islands in the river long before the invasion by colonists, they never crossed to the north shore to trade for anything!! This is ridiculous! The Supreme Court of Canada seems to think that if you live on the part of Akwesasne claimed by the United States and you want to give your old washing machine to your sister who lives on the side claimed by Canada, you have to pay duty to Canada. This makes no sense! The imposed boundary that runs through the middle of Akwesasne makes normal life impossible. Canadian officials use this as an excuse for abuse. Sadistic Canadian Border Service Agency guards are constantly stopping, harassing and assaulting our people. [Judge Tekastiaks suggests, “The white people should have a “white lane” like we do except with Indian border guards”.] The “meaningful and reasonable process of consultation” relied upon by Judge Neilson in Wii’litswx is no where to be found in Canadian relations with the Kanienkehaka. Canadians have to start being lawful people. Every square inch of Turtle Island belongs to the Onkwehonwe. Canada and the United States have to sit down and talk with us if they want to survive the greedy and destructive habits they brought here. Ieri’wa:onni, Judge Tekastiaks and MNN Staff See www.mohawknationnews.com, click on "News" and go to "Canada" category. PLEASE NOTE: As can be seen, it’s becoming critical for legal actions to be taken to protect our rights. We have no funds. Canada is hiring costly law firms to suppress our rights. If you can donate anything to our cause, it will be greatly appreciated. Donate to: PayPal, www.mohawknationnews.com, or “MNN Mohawk Nation News”, Box 991, Kahnawake [Quebec, Canada] J0L 1B0. Nia:wen/Thank you very much. New MNN Books Available Now! The books below, email us: Mohawk Warriors Three - The Trial of Lasagna, Noriega, 20/20 $20.00 usd The On-Going Confusion between The Great Law and The Handsome Lake Code $20.00 usd The Agonizing Death of "Colonialism" and "Federal Indian Law" in Kaianere'ko:wa/Great Law Territory $20.00 usd Who's Sorry Now? The good, the bad and the unapologetic Mohawks of Kanehsatake $20.00 usd Rebuilding the Iroquois Confederacy Karoniaktajeh $10 usd Warriors Hand Book Karoniaktajeh $10 usd Mail checks and money orders to... MNN P.O. 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Canada: Aboriginal and Treaty Rights

Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. ...

The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour. ...

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”

***

Court sends a chill through the woods

PATRICK BRETHOUR

Globe and Mail Update

August 28, 2008 at 6:00 AM EDT

British Columbia's forestry industry is about to find out who is really in charge of deciding what trees can be cut, and where. Hint: It isn't the Ministry of Forests.

The Gitanyow First Nation has won a big legal victory in its six-year quest to exert control over forest licences being granted in what it sees as its territory – 1.7 million hectares in the province's northwest. The decision from the B.C. Supreme Court is very clear that the Gitanyow don't have a veto on forestry on those lands. Yup, no veto, none at all – just the ability to scupper the decisions of the Forestry Ministry if they clash with the positions of the band.

The Gitanyow decision is the latest in a string of legal victories for aboriginal bands seeking to assert their authority over “traditional territory” – generally speaking, a big swath of land only part of which would ever be formally handed over in a treaty negotiation. That day is unlikely to come any time soon: The Gitanyow, as with most native bands in B.C., have been negotiating for years, beginning talks with the federal government in 1980 and the province in 1994. In the meantime, they and other bands are claiming jurisdiction over huge chunks of B.C., virtually the entire province, sparking legal proceedings in which courts have consistently ruled in their favour.

Such is the case with the Gitanyow, who watched with growing frustration over decades as forestry firms clear-cut timber on the bands' traditional territory. Since the early 1990s, the Gitanyow had watched five companies obtain forest licences, make solemn promises to replant the trees, hack down the timber – and then go broke, doing little or nothing to replant. Frustration turned to a lawsuit in 2002, culminating in a new case last year, after a regional director for the Forestry Ministry issued a batch of new licences, despite the Gitanyow's objections.

There had been extensive talks, good-faith negotiations, and even a signed agreement that defined how the province and Gitanyow would work together on forestry issues until such time that a treaty could be negotiated. The court nevertheless ruled that the province fell short in its duty to meaningfully consult the Gitanyow and reasonably accommodate their concerns. Translation: It's not enough to listen to aboriginal objections; they must be acted on.

It's hard to see how the ministry's regional director could have acted otherwise, considering what the Gitanyow were demanding. The band wanted recognition of its title, half of the stumpage fees and other forestry revenue from the area, subordination of the tree-licence process to the forestry management agreement and a requirement that forestry companies pay hefty deposits to pay for replanting. Those are the kinds of demands at the heart of treaty negotiations, and some would require a wholesale rewriting of forestry legislation. All are well beyond the pay grade of a regional director. Addressing those concerns means, in essence, reaching a treaty settlement with the Gitanyow, something the province has tried and failed to do since 1994.

Yet, the court judgment doesn't address this political reality. Instead, the judge seems to say that in the face of a strong claim to aboriginal rights and title, the Crown must make reasonable concessions. No such obligation to make reasonable concessions is placed on aboriginals. No points for guessing how talks will go if one side knows all it has to do is stick to its guns and it will eventually get what it wants in court.

The forestry businesses are mere bystanders, even though the Gitanyow had argued their new licences should be cancelled outright. The court turned down that request, at least for now, and both parties will have to make submissions on what can be done. Perhaps that will mean revenue sharing. Perhaps the court will merely shred tree licences negotiated in good faith.

For the moment, all that's at stake is the small matter of the Crown's control of the forestry industry. But the executives of any company looking to build a mine, resort, power project or road should feel a chill from this line in the judgment: “The goal of reconciliation necessarily imports recognition of aboriginal rights to limited resources on claimed territory, and the importance of sustaining those resources while claims are pending. If they are destroyed, there is nothing left to reconcile.”