Forget taxes:We paid with our landDear Editor,
It troubles me that some Canadians feel that First Nations are taking an unfair advantage of federal government programs and certain tax exemption benefits. Recently, Toronto columnist Diane Francis stated in her commentary that "Ottawa should amend the Indian Act immediately to make sure that Indians pull their weight".
I found this statement so ludicrous my immediate reaction was "that poor, uneducated and misled individual". Just exactly how much more weight does she expect First Nations to endure? Our very history since the signing of Treaty Six has been seriously marred by skillful, yet illegal, government maneuvers that read like something out of an international espionage novel.
This is kind of how it goes. The Queen, through her reps, make a treaty with the Indians of Alberta and Saskatchewan. The year, 1876. Their intention is to invade a country without firing a shot. They promised the First Nations that they will be able to continue to hunt, fish and trap as before. They promised among, other things, to provide health services, education and exemption from the Queen's taxes. And most of all, they agreed to share the land and its resources and live in peace with each other.
Less than 30 years later, in 1905 and after much political wrangling, the Crown in Right of the Dominion of Canada establish the western colonies into the Provinces of Alberta and Saskatchewan. But what good is a province without full control of its natural resources? Less than 30 years later, in 1930, the First Nations people lost almost all their land and control of their resources by way of the Natural Resources Transfer Act. First Nations were forced to watch all this like a bad nightmare, the kind you can do nothing about. They were not even permitted to leave the reserve without a special permit.
They took the children from their homes and took away their language and their courage and put them in their residential schools. Many of us perished in the terrible epidemics that swept First Nations like wildfire and the hard cold winters brought freezing starvation.
In writing her article about First Nations not pulling their weight, Francis quoted only one source, the Attorney General's report. Perhaps what that poor unfortunate non-Native journalist should know is that every story has two sides. In our case, it's three sides: First Nations', the federal government's (Queen) and the provinces'.
According to the Royal Proclamation of 1763 and later affirmed in the Canada Act of 1867 as well as the spirit and intent of Treaty Six, it was agreed that First Nations would be consulted on any legislation that affects them. This was not done at the conception of the provinces and again First Nations were not consulted about the transfer of natural resources to the province. The very question about the legal creation of the provinces of Alberta and Saskatchewan becomes in doubt. Did the federal government pass the Alberta and the Saskatchewan Acts in 1905 without conferring with the First Nations? Of course the answer is quite obvious, yes. They considered First Nations at the time to be merely a minor pain in the side, not strong enough in number or informed enough of the proceedings and went ahead with colonization with a gusto. The provinces were entered into Confederation in 1905 but the federal government retained control of the province's natural resources, choosing instead to provide seed money for expansion of the settlements, mining, lumbering and building of the railway system.
Then in 1930, after much pressure and campaign promises, Prime Minister William Lyon Mackenzie King awarded each province control of the land and natural resources in exchange for a share of the revenue to be directed the federal government and the other provinces. Not once was it mentioned that the First Nations had any interest in a share of their lands and resources. That particular fight has only begun in earnest and hopefully through skillful negotiations at the bilateral table, First Nations will be allowed to benefit from the fruit of their land. When the treaties were signed, only a ploughshare's depth of land was given to the Queen. Nothing deeper than that or living on the surface was ever surrendered by First Nations people.
It really burns my tailfeathers when some Canadians cannot appreciate what a great contribution and sacrifice the First Nations have made to this country. Efforts must continue to persuade the British Parliament to apply its influence to ensure that Canada fulfills its treaty obligations and to stop the unilateral destruction of our lands and its resources.
Many view the treaties as the surrender of First Nations land and resources to the Queen. But many more people view the entire process as the biggest peacetime land grab in the history of the formation of Canada. In fact the treatment of many Indigenous peoples around the globe by their colonial invaders, peacefully or by force, is the subject of a special committee at the United Nations.
The time has come for all First Nations people across this country to continue educating the general public, who unfortunately don't know their own history. Enlighten them of the many injustices that have been committed on First Nations peoples.
However, it is never too late to sit down like honorable people to solve the issues that concern and affect us. We are a proud and sturdy people and we have endured much more adversity than most Canadians will ever hope to understand. Our love for our land cannot be measured in terms of its worth in dollars. We have always depended on our land and its resources for survival and it is our treaty right to govern ourselves, determine our own future and utilize an equitable share of our natural resources to meet the needs of our people.
Thomas Piche
Hobbema, Alta.By Allen Sackmann
Windspeaker Contributor
OTTAWA
A "small but strong" group of Native protesters marched to Parliament Hill in late October, 1994 and threw down the gauntlet on taxes.
Printed material handed out during the march focused attention on Native government issues, including the ruling that Natives must begin paying GST in January 1995. Speeches urged Natives to unite, to begin healing themselves and to nurture Native values of culture, spirituality and tradition.
After the rally and a planning session, spokesman Roger Obonsawin told media representatives that his company would not collect GST next year even though a Revenue Canada guideline called for it to be collected off reserves.
"Our people won't pay it. (The government) will be breaking their own laws."
Obonsawin said the purpose of the march was "to send three messages":
· to Native communities that Indian Nations have "started to heal themselves" and have the power to take control of their futures;
· to Revenue Canada to rescind tax guidelines which would begin collecting certain taxes in 1995; and
· to the federal government that it must negotiate self-government directly with First Nations, not through the federal department of Indian and Northem Affairs.
The three sponsors of the march in support of inherent rights and historic treaty agreements were: the Coalition on Aboriginal Inherent Rights and Economic Alternatives (CAIRES), the OI Group of Companies and Aboriginal Legal Services of Toronto. Representatives of several First Nations participated in the event. A rally had been held in Toronto.
Obonsawin, who represented the sponsors, said:
"If they (government) continue to take away our rights, we'll charge them with breaking their own laws.
"We can be silent no more The people have the power, not the people back there (Parliamentarians)."
Estimates of participation in the march varied widely but Obonsawin was pleased with the turnout. Media attention was scant.
While the rallying point was redressing issues with the government, uniting First Nations under a common umbrella was an underlying and prominent theme.
Participant Vera Martin told the demonstrators: "You have been given a powerful sign when the White Buffalo calf was born. It is our time, take up our culture, our spirituality, our land... ahead to seven generations."
The birth this year of a rare white buffalo is, says Floyd Hand, a Sioux from Pine Ridge S.D: "like the second coming of Christ... the legend is she should return and unify the nations of the four colors-the black, the red, yellow and white."
Speaker after speaker called on participants to "hold your head high," to become masters in your own land and to have all Nations speak with a common voice.
Rose Nixon, a 55-year-old Cree grandmother from Toronto, said she had waited 20 years for the rally and itemized problems which she laid at the government's feet: poor health care, poor housing and poverty. But, she said, guns and knives are not the way to win freedom.
"We can go to war with our prayers, minds and our pencils. We have to bring all tribes together."
She was reacting to Shawn Brant, a Mohawk from Tyendinaga Territory, who said government has engaged Natives as the enemy.
"The government tax policy will impact greatly on our communities... they are declaring war. The next action will have to come from us. We have to be prepared to stand up, mobilize a military defence."
Brant promised, to loud cheers, that if the GST policy is implemented, Natives on reserves will "stand with our people in the cities. They aren't going to split us. The line is drawn."
7-20/11/1994
Court Rules Natives Tax Exempt
By Susan Lazaruk
Windspeaker Correspondent
VANCOUVER
Experts on Native taxation can't agree on the impact of a court ruling affecting tax exemption for status Indians.
But speakers at a Vancouver conference on the issue all agreed that the 1992 Supreme Court of Canada decision referred to as the Williams case won't be the final word on Native taxes.
"The soap opera has to continue," Douglas Sander, a law professor at the University of British Columbia, told the IOO delegates to the two-day conference this month. 'Williams isn't the final act; the soprano hasn't sung yet."
The uncertainty over the Williams ruling stems from two different interpretations, one by tax collectors and the other by Aboriginal taxpayers and experts.
Section 87 of the Indian Act exempts status Indians who live and work on reserves from paying income tax. And in 1983 in the Nowegijick case, the Supreme Court bolstered that exemption by ruling a status Indian living on reserve but working off reserve didn't have to pay income tax, as long as the employer was based on reserve.
For a decade, Native businesses had structured their tax planning based on this decision.
Then came Williams, a test case intended to decide if unemployment insurance benefits were taxable income. Because the Supreme Court couldn't determine where the payer-the federal government-was based, it concluded other factors connecting the worker to the reserve would have to be used, including where the money was earned, to entitle the worker to tax-free status.
But Revenue Canada interprets this to mean where the money is earned is the most important factor in determining if it's taxable. And it concluded if the money was made off reserve, it must be taxed.
The tax man's view is that Williams overrides Nowegijick. The change was to take effect Jan. 1, 1994 but was moved up to Jan. 1, 1995 to give Natives more time to prepare.Since the beginning of the year, nothing has changed.
Revenue Canada sticks by its version of Williams. For Natives' part, they cannot agree what the next step should be.
In a panel discussion at the conference, three different experts made three different suggestions.
Barrie Davidson, a Vancouver tax lawyer, called Williams a bad law. "I don't think there should be any acceptance of the Williams decision," he told delegates.
He said Natives must push another test case to the Supreme court because the tax department won't back down on its policy guidelines based on its interpretation of Williams.
"The department of Revenue Canada has no intention whatsoever of listening to debate. Its guidelines stand; there's no sense in approaching Revenue Canada."
And he suggested appealing to Jean Chretien, who just before being elected into government called Williams a bad law that needed changing.
"You're wasting your time dealing with anyone short of the prime minister and maybe the minister of revenue," said Davidson. "The First Nations should directly approach the prime minister and ask (the Liberals) to live up to their commitments and to the basis in law."
David Anderson, the Vancouver-based federal revenue minister, had agreed to be keynote speaker at the conference but withdrew a week earlier without explanation, said Blythe Rogers, who handles public relations for the Native Investment and Trade Association, which organized the conference.
Revenue Canada said it doesn't set policy, it just collects taxes, he said.
Anderson could not be reached for comment.
Said Davidson, "We should all get behind a test. . . another test case has to be pushed to the Supreme Court to decide this case once and for all."
But Jack London, a Winnipeg lawyer and panel member, had a different view.
"First Nations should stay as far away from the courts as they possibly can," he said. "What test cases are likely to wind up doing are setting very difficult precedents that will set back the laws that provided for the liberal interpretations in the past."
He suggested Aboriginals work the Williams decision to their advantage by adapting their tax planning under the new guidelines, for instance by setting up trusts.
"If you focus on Williams as bad law, you'll miss the good part of Williams," said London. "It opens up a whole new area of tax structuring."
A third panel member, Robin Wortman, the Metis executive director of the Advancement of Native Development Officers in Edmonton, agreed with neither plan.
"What we need is the federal government to vacate the jurisdiction of tax law and hand it over to the governments of First Nations.
"The fundamental issue is that First Nations need jurisdiction because First Nations need unlimited sources of income for economic development and to provide services to the people of their communities," he said.
In response to a delegate from a reserve in northern B.C. who, as a law student, planned to open an office in Vancouver one day and wondered if he would need to maintain an apartment on his reserve to keep his tax-exempt status, Davidson said, "The answer is yes. If you don't live on the reserve, you're dead."
He added, "Jack's view is to work within Williams" guidelines. But lots of people can't," such as wage workers who wouldn't be able to set themselves up as a corporation on reserve to maintain an exempt status, as a self-employed lawyer could.
And Wortman worried about the effect that would have on reserves, particularly, he said, when huge non-Native businesses always seem to attract the best and brightest Natives as employees.
"If you have to set up an apartment on reserve, what does that leave for the communities? Is that the way we want to see the future?"