The 'race-based' myth: First nations are being allocated fishing rights because their fisheries were wrongfully appropriated

Vancouver Sun - Monday, January 08, 2007

 

 

By Hamar Foster Special to the Sun

 

Recently announced final agreements are reviving the "race-based" fishery charge. But what does this mean?

 

For a law to be "racially based" it must discriminate solely on the basis of race. This was the case, for example, in the United States before desegregation, and in South Africa until more recently.

 

In B.C. we are also familiar with this sort of law. There was a time when "Indians" could not vote, stand for election, become lawyers or buy land without permission -- but "whites" could. And of course the government confiscated the property of Japanese-Canadians -- including their fishing boats -- during the Second World War because of their race.

 

But when Japanese-Canadians were compensated for this a few years ago, was this compensation "race-based?" Or was it because it was their property that had been taken?

 

The claim for aboriginal fishing rights is similar. First nations are being allocated fishing rights not because of their race but because their fisheries were wrongfully appropriated. Indeed, when this issue was litigated in the U.S. 30 years ago, the courts confirmed that the fishing tribes of Washington and Oregon were entitled by law to up to 50 per cent of the salmon fishery.

 

I recognize that some people do not accept that legal regimes existed among B.C.'s aboriginal peoples, ones that allocated territories and proprietary rights to resources such as fish. To them, only nation states with legislatures have law. But there were such regimes, and our courts have ruled that they can be a source of aboriginal title and rights.

 

The reason lies in legal history. A century and a half ago, Governor James Douglas told his superiors in England that Indians had "distinct ideas of property in land" and insisted that their "fisheries ... should be reserved for their benefit and fully secured to them by law."

 

Accordingly, and because colonists relied on Indians to supply them with fish for food, the treaties Douglas made with the Vancouver Island tribes explicitly state that, in return for accepting settlement, they were guaranteed "their fisheries as formerly."

 

This promise was made to aboriginal people throughout B.C. in the 1860s and '70s. They understood it to mean that the family fishing spots used by them for centuries were to remain theirs and that they could sell their catch to the settler population, just as they had to the fur traders.

 

They were also told that because their fisheries were being guaranteed, they did not need much land. And on this point the government was certainly true to its word: Only one-third of one per cent of B.C. was set aside as Indian reserves.

 

But the fishing guarantee, the supposed quid pro quo for such small reserves, had a different fate. Non-aboriginal fishing companies that intercepted vast quantities of fish before they could reach the spawning rivers, canning them and shipping them abroad, successfully lobbied in the 1880s to have their operations given priority over Indian fishing.

 

They even managed to restrict the "Indian food fishery" (created by government to substitute for the earlier guarantee) by arguing that this fishery -- which operated only after the industrial fishery had taken its huge cut -- was the primary threat to conservation.

 

By the end of the 19th century, a public that had no memory of the promises made came to regard Indians as having no prior rights. Apart from the Indian food fishery, the resource was said to be open to everyone who could get a licence, whether you had been promised that your fisheries would be protected or you had just stepped off the boat from Europe. But we should not be surprised: People who believed that Indians had no rights to their traditional territories can hardly be expected to think that they had prior rights to fish.

 

Indians protested, of course, but they had no real choice; they had to either abandon the fishery or take part on these new terms. Some, of course, chose to participate and did very well. Most, however, were transformed into wage labourers for the new owners or marginalized altogether.

 

Because the fishery in B.C. has been premised on a denial of aboriginal rights for more than a century, putting things right today is not easy. Many non-aboriginal interests have intervened, and the passage of time has made deciding who should participate in a treaty fishery much more complicated. However, calling attempts to come to terms with this history "race-based" does not advance anyone's understanding of the issue.

 

If a first nation is recognized as having fishing rights above and beyond the food fishery it will be because it has either established a constitutional right to such a fishery in court (as the Heiltsuk have done with respect to the commercial herring spawn-on-kelp fishery) or because it has negotiated such rights as a side agreement to a treaty.

 

Either way, historical entitlement is the basis of the agreement, not "race," because simply being "Indian" is not enough. An aboriginal person who is not a member of the treaty group can no more participate in a treaty fishery without permission than a non-aboriginal person can.

 

Surely there is something very unfair about taking property away from people because of their race and then arguing that it is racist to give it back. So let's debate these difficult questions vigorously but leave "race" -- a vague and confusing term that is not the legal rationale for treaties -- out of it.

 

 

Hamar Foster is a professor of law at the University of Victoria.

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Courts OK $5b payout to abused natives

http://tinyurl.com/y53jqe (Hamilton Spectator)

 

The Canadian Press TORONTO (Dec 16, 2006)

 

Canada's courts have approved a $5-billion settlement for native victims of the residential school system.

 

The deal settling the decade-long class-action suit will deliver an average of $24,000 to every former student of the system. The estimated 12,000 to

20,000 people who suffered physical and sexual abuse will be eligible for an additional $5,000 to $275,000 each and could get even more if they can show a loss of income.

 

Most of the country's courts gave the settlement their stamp of approval. Only Nunavut and the Northwest Territories remain.

 

Phil Fontaine, national chief of the Assembly of First Nations, who was one of the first national figures to go public in 1990 with his own story of sexual and physical abuse at Fort Alexander School in Manitoba, said yesterday his next task will be to seek an official apology from the prime minister.

 

While there are about 10,500 individual cases currently before the courts and some 3,000 more in a government alternative dispute resolution program, there's estimated to be more than 80,000 people in total who are entitled to benefits. The deal also includes $125 million for the aboriginal healing fund, $60 million for a truth and reconciliation process to document the history and legacy of government-run Indian residential schools and $20 million for commemorative projects. The most controversial aspect of the settlement is an estimated $100 million set aside for legal fees.

 

Aboriginal residential schools began operating in the late 1800s. In the late 1970s all the schools were shut down.

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MILTON BORN WITH A TOOTH ON "TRAIL OF TEARS" CAMPAIGN ACROSS CANADA

www.mohawknationnews.com

 

07.08.2006 20:48:00:

 

MNN. August 7, 2006. Milton Born with a Tooth showed up at my house at 9:00 pm. last Friday. He had a very important colonial tale to tell. Milton Born With a Tooth is a Blackfoot Indigenous man from Piegan in Alberta. He went to jail for four and a half years for trying to divert the Old Man River back to its natural course in 1990. As a ?Lone Fighter? he was charged with assault with a deadly weapon. The weapon was a bulldozer. In 1921 the river had been diverted to an irrigation canal for the benefit of non-native farmers in southern Alberta. The Blackfoot of Piegan did not give their consent for this diversion and had always protested it.

 

From August 3rd to September 7th 1990 Milton worked. He took a bulldozer and alone started to dig a ditch so that the river would return to its natural course. 75 RCMP officers descended on him, followed by government officials and a SWAT team. Altogether 200 armed police arrived to ?overpower? Milton. Was this overkill or what? Initially he was going to get 56 years in jail. He got out in 1995 serving the last part of his sentence in the Kainai Correction Institute on the Blood Reserve near Lethbridge Alberta.

 

When Milton was asked where he got the plan to divert the river, he said, ?I got it from the beaver?. The old people gave an offering to the caretaker of the river. ?If he can do it without money and a weapon, then I could do it too?, declared Milton. He used the laws for safeguarding traditional medicines. He said that the culture of the river provides our understanding of the basis of where we come from and who we are. He tried to divert the river to show that we are still in touch with nature. He had lobbied and gotten national and international scientific support to stop this irrigation project. He even got National Geographic to support him.

 

While Milton was in jail, the elders and environmentalists took it to court. In 1991 the Supreme Court ruling came down. The Piegan got $64 million, half from the federal government and half from the provincial government. In future, to do anything on the Old Man River they have to consult the Piegan people. The first offer went to the people for a vote. They said ?No?. It was taken back. Another clause was added that they would take $10 million of it to distribute to the people who were poor. This was agreed upon. In 2002 the agreement was finalized.

 

In the meantime when Milton got out of jail he went to court. He got an injunction that the provincial government of Alberta had no right to divert the Old Man River in the first place.

 

Once the money came to the Blackfoot, then troubles began. All kinds of sharks descended on the Piegan people. Alberta and Indian Affairs recommended that the chief and four councilors hire a young financial advisor, Lili Kostic, for $1.5 million per year to serve them. She is Indian Affairs ideal, a Pamela Anderson look-alike. This is what Indian Affairs thinks a ?nouveau riche? Indian man should want.

 

In the agreement the CIBC holds the $54 million in a block account. Remember them? They were in the Enron scandal. They didn?t come out of it too clean.

 

Meanwhile the community can?t get a financial report. Five non-native consultants were also hired, one from the ?World Evangelistic Church?. They?re there to pacify the Indigenous people. Indian Affairs is up to its old tricks. All these ?helpers? [who are helping themselves to the people?s money] are being paid from the education, housing, health, economic development and other social programs. They have now depleted all the funds. This is when Indian Affairs decided to put the community into receivership and took over the management of their financial and all their affairs. This is totally disgusting and all too familiar.

 

Throughout this saga the community was involved emotionally in the Old Man River dam issue. This $64 million was supposed to help them. Suddenly these outsiders got parachuted into their community by Indian Affairs. No reports are filed. The people don?t know what?s going on.

 

The chief and council are flying around and incurring all kinds of expenses. In March 2005 a councillor, Edwin Small Legs, sat in a meeting with the CIBC?s Joe Marino in Calgary. While in the meeting the councilors and the chief heard Joe Marino complain the he was ?feeling the hit? and was worried because of the other people involved. Marino turned around to Small Legs and asked him, ?What will I do with this?? The pressure was on because of the questions being raised by the people.

 

Small Legs asked, ?What do you mean?? Everything stopped. The whole community was asking too many questions throughout.

 

In December 2005 Joe Marino refused to give any documents on how he was handling their funds. The community found out a whole lot of money was missing through embezzlement by the chief, Peter Strikes With a Gun, and others. The chief started to panic. In late May 2005 the chief told Milton, ?I don?t like being called a crook?. He decided to resign. He went in front of the people and sang a tear jerking finale. Five days later he returned. Indian Affairs had gotten a court injunction appointing him as the chief.

 

Then there was an election. Indian Affairs knew that Peter Strikes With a Gun was going to lose. The morning of the election, at 9:00 am. Indian Affairs in Calgary got a court order and quickly sent it to Ottawa. It was sent back and arrived at Piegan by 3:43 pm the same day. What happened is that two-thirds of the way into the election, the RCMP showed up with the court order and confiscated all the ballot boxes.

 

The community freaked out. Indian Affairs had used three community women to take out this injunction. In the end these women did something that impeded the will of the people. The community erupted into chaos.

 

Edwin Small Legs, a councilor, called a friend in Ottawa, Walter Rudnicki, who found somebody to help. In the end nothing was done about the corrupt non-election.

 

From September until December 7th 2005, Edwin Small Legs finally decided to come clean. Things were going crazy. Everybody was getting harassed. ?What do I do?? he asked Milton. A media conference was called and Milton spoke about the situation. Documents were presented showing the duplicity of Joe Marino of CIBC with the chief and four of the councilors. Edwin got scared. He was afraid he was going to be the fall guy.

 

The following day the financial advisor, Lili Kostic, charged Milton with threatening to kill her and he daughter. Milton went to the RCMP. He decided to play dumb. He was afraid that because he?s an Indian in a racist community, the white woman would be considered more credible.

 

Then Milton went to the chief of police. He released all the documents he had and charged her with blackmailing him. With the knowledge of the cops Milton reported that Kostic gave him money. She showed him her panties in her car. Milton swears he never took her up on her offer. He reported these incidents each time to the RCMP.

 

Since then this case has been under investigation. In April 2006 the RCMP brought evidence of financial mismanagement to the Commercial Crimes Division in Calgary. The preliminary investigation is finished and there is a strong case of fraud against these people.

 

On July 5, 2006, Milton held a press conference announcing that he had charged everybody with fraud ? the chief, four councilors, two financial officers, two financial institutions, three Indian Affairs officials and the 6 consultants. One of those charged was Neil Sharp Adze. One week later he killed himself. Indian Affairs knows how to get their hooks into a guy like Sharp Adze, get him to compromise himself and scare him into thinking he is he?s going to be blamed for everything. They are partly to blame for what happened. Look, folks! Whatever wrong you may have done in the past, don?t kill yourself. You can make amends to the people. You owe it to future generations to do what you can to make things better. You don?t owe your soul to that criminal organization called ?Indian Affairs?.

 

Milton went to the constituency office of the Minister of Indian Affairs, Jim Prentice. He spoke to his Chief of Staff. At this meeting an offer was made that they would look into the chief?s resignation issue, the RCMP?s interference in the election and the dealings of the financial officers. It is obvious the RCMP needs training on who they should take orders from. Do they have to be patsies for every crook going? It looks like things haven?t changed since the bad old days when Duncan Campbell Scott had free reign to depose Indigenous governments left, right and center.

 

On his journey to other Indigenous communities across Canada, Milton has found this kind of corruption everywhere in almost every Indigenous community. He is asking for a full public inquiry into Indian Affairs and its crimes against his people. We can hope that the Canadian public will support his cause. Indian Affairs is using their tax money for illegal purposes.

 

Milton wants to take water from the Atlantic Ocean and from the Pacific Ocean. He will mix them together and pour it into the Old Man River.

 

The way things are going, we are shocked when we hear that someone in government is honest!

 

Kahentinetha Horn MNN Mohawk Nation News Kahentinetha2@yahoo.com For daily updates on Mohawk issues see www.mohawknationnews.com

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Water worries for First Nations

The Leader-Post (Regina)

 

 

Wednesday, June 28, 2006

 

The E. coli that killed seven people in Walkerton, Ont., in 2000 and the parasite that sickened up to 7,000 in North Battleford in 2001 hit Canadians like a bucket of ice cold water in the face.

 

Anger followed shock as people realized they could never again take for granted the simple act of turning on their taps and expecting safe drinking water to flow.

 

Both later judged to be the result of a poor or negligent approach to water treatment, Walkerton and North Battleford spurred urgent reviews and the spending of hundreds of millions of dollars across the country on equipment and stringent new water testing guidelines.

 

In Saskatchewan, for example, the provincial government launched the Safe Drinking Water Strategy, "a comprehensive plan of action designed to deal with the risks that affect drinking water and affect the health of Saskatchewan residents."

 

Despite a national focus on water issues it came as a further shock and embarrassment in October last year when residents of Kashechewan First Nation in Ontario were airlifted from their community for medical treatment after dozens were sickened by E. coli bacteria. The community had repeatedly warned Ottawa about growing water-related health problems, but the former Liberal government acted only when the situation became a crisis.

 

Kashechewan came just a few weeks after a report to Parliament from the Auditor General stating that, despite Ottawa spending almost $2 billion over eight years on First Nations water, the number of water systems posing a health risk rose to 75 per cent from 25 per cent.

 

"This is partly because there are no laws and regulations governing the provision of drinking water in First Nations communities, unlike other communities," the report said.

 

The same point has been made this week at the Canadian Institute of Public Health Inspectors annual conference in Regina -- inadequate regulation of water on Canada's 2,400-plus reserves.

 

Indian Affairs Minister Jim Prentice has begun talks with First Nations to help them bring reserves up to provincial or national standards for the operation of their drinking water systems. We hope there is a co-operative solution soon, before there's another Kashechewan with a more tragic outcome.

 

© The Leader-Post (Regina) 2006

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