Trust. Integrity. Reputation. Top News - May - 2005 Volume 23 - Number 2 B.C. changes rules to avoid Haida obligations B'nai Brith Canada wants Manitoba chief turfed Corruption exposed - Editorial Two times the tragedy that taxes are- Guest Column Check out Ontario Birchbark The entire contents of Windspeaker's May issue is available online in the AMMSA Archives. Access is restricted to subscribers only. CLICK HERE FOR ONLINE SUBSCRIPTION INFO. B.C. changes rules to avoid Haida obligations Paul Barnsley, Windspeaker Staff Writer, Port Alberni, B.C. In a British Columbia Supreme Court decision on March 11, Justice Carol J. Ross found that the sale of a 70,000-hectare parcel of land from one forestry company to another adversely affected the rights and title of the Hupacasath First Nation of Vancouver Island. The justice also found that there was a chance the Hupacasath people could suffer irreparable harm if the decision to remove the lands from the jurisdiction of the Forest Act and move them into the Private Forest Lands Management Act, as proposed by the province's minister of Forests, was allowed. So why did the justice refuse an injunction against the sale of the land? Citing the "balance of convenience test", the court chose the $1.2 billion land deal over the irreparable harm it would cause to the Hupacasath, effectively choosing business certainty over constitutionally-protected Aboriginal rights. "It is a shame that the court failed to recognize that our land, our resources and our ability to exercise our rights are priceless and invaluable. Our children's legacy, which is supposed to be protected within Canada's Constitution under Section 35, is at risk of being forever destroyed. When does business certainty have priority over constitutionally-protected rights?" asked Hupacasath Chief Judith Sayers, who filed the injunction to slow the sale of the lands in Hupacasath traditional territory. The Hupacasath have chosen not to appeal the decision on the injunction because the trial on whether the minister should have consulted and accommodated them prior to removing the lands from the jurisdiction of the Forests Act is scheduled to start on May 2. But Sayers admits to being confused by Justice Ross' decision. "The court chose $1.2 billion over our rights," she said. Environmental lawyer Will Horter is executive director of the Dogwood Initiative, a private foundation funded group that helps communities take on corporations and fight for local control of resource extraction. He said the decision in the Hupacasath case was fairly typical of B.C. Supreme Court decisions. "If you look at the B.C. Supreme Court politically, most of the judges, and I haven't done the background check on this particular judge, but most of them come from the big Vancouver law firms and most of their clients have been major resource companies. So most of them understand the economics of the industry fairly well," he said. But few of those judges are as well informed on Aboriginal rights issues, he added. Applying the balance of convenience test to an Aboriginal rights case is not fair and not good law, he said. "The unfairness on the balance of convenience test, it's basically comparing apples and oranges," he said. "In essence, the balance of convenience test, there's an issue to be tried and at the end of the day they're supposed to say, 'Is one party irrevocably harmed if we don't stop this action and give this injunction?' But how do you put a dollar value on a constitutional right as opposed to something that's worth $1.2 billion?" Sayers said Native leaders want to create a process that forces provincial policies to be updated or modified to comply with recent Supreme Court of Canada decisions that support Aboriginal rights and title. Without some concrete action on the part of the provincial government to follow high court rulings, there will be trouble, Sayers said. "Personally, I say it will happen in the near future," she said. "I'm calling it the showdown in the woods." She's not the only person in the province unhappy with the government's actions on resource extraction. The Haida people have brought logging to a halt on their territory by mounting a blockade. And a coalition of more than 30 environmental, labor union and First Nations groups issued an open letter to Premier Gordon Campbell on April 15 accusing the premier and his government of intentionally re-writing policies and regulations to avoid high court decisions on Aboriginal title. "As the Haida Tree Farm License 39 case was making its way to the Supreme Court of Canada, the provincial government was repealing or rewriting virtually every forest and environmental law in B.C. to reduce its role and place increased control in the hands of resource companies," said Jessica Clogg, staff counsel at West Coast Environmental Law. "Because of its offloading to companies, the Crown now claims it has no duty to the Haida. This is not honorable." Even government employees are criticizing the Campbell government. "Through cutbacks and sweeping changes to forestry laws, the provincial government has essentially torn up the 'social contract' in our forests, removing the benefits of local resource development from local communities and First Nations," said George Heyman, president of the B.C. Government and Service Employees' Union. "This is a recipe for community dislocation and uncertainty that can only be resolved by dealing honorably with First Nations and fundamentally rethinking recent changes to forestry and environmental laws." Will Horter pointed out that a number of First Nations group in a variety of different ways around a variety of different issues are standing up and saying, 'the status quo, business as usual is not acceptable.' "The Hupacasath have used the legal arm. The Haida have gone to the streets. The Heiltsuk have gone and done their protests around fisheries," he said. "The folks up in Kingcome Inlet are blockading. There's lawsuits in the Okanagan. There's an upcoming lawsuit with the Haida and the Gitanyow. Treaty 8 is done both the blockading and litigation. And I suspect there's going be some things coming up in this election cycle as well. So the trend of First Nations using a variety of tools, not just legal tools, to stand up and defend their interests against unsustainable activities is, I think, an untold story about British Columbia." One of the strategies Horter and his colleagues have recently begun exploring could end up being of great assistance to First Nations. "We've just started to go into the investment community and explain to the institutional investors, analysts and other people who play in the financial markets, about these financial liabilities that are not being disclosed," he said. "We think we can ride the trend that's happening in the global financial markets around both corporate management and governance issues, and others around accounting and disclosure, because we don't think many of the risks associated with these Aboriginal issues are being disclosed in the investment community." The lawyer and Judith Sayers were both critical of the province's Forest Range Agreements, where some First Nations are being paid relatively small amounts in exchange for permission to log on their territories. Sayers called it "the worst policy the government's ever done" and "an attempt to disallow First Nation consultation." Horter said it was a cynical attempt by the government to force cash-strapped band councils to accept ridiculously small amounts of money in exchange for not exerting their Aboriginal rights. "If you notice, the people who are signing those FRAs are all Indian Act reps. It's all of the band councils that are signing. As you know, the Indian Act representatives can only have authority over the reserve lands which is really less than one per cent. So they're getting people to sign these agreements, which are really to stand down on lands over which they have no jurisdiction," he said. "The hereditary chiefs, are they bound by these agreements? The government is signing these with people who only represent a small percentage of the land base and pretending that it represents the larger First Nations communities." Top B'nai Brith Canada wants Manitoba chief turfed Paul Barnsley, Windspeaker Staff Writer, Roseau River First Nation, Man. On April 9, a 1,500-word essay entitled "Native hatred of Jews will rise dramatically!" appeared on fax machines in 13 newsrooms across Canada. It was signed by Chief Terrance Nelson. In the essay, Nelson repeated David Ahenakew's anti-Semitic statements for which the former national chief of the Assembly of First Nations was recently prosecuted under the hate crime provision of Canada's Criminal Code. Nelson wrote that he was angry at the tone of the coverage of Ahenakew's trial in the mainstream media. "Sadly, how the press and Canada responds to this issue will surely cause Natives to hate Jews even more then (sic) some of them do now and what Jews fear the most, active promotion of hatred against Jews in Canada, will only rise dramatically amongst Natives as they make a martyr out of an old man," he wrote. He agreed that taking Ahenakew's Order of Canada away from him was a fitting punishment, but "if the courts opt for punishing David Ahenakew, it only makes him seem to be right about his opinions. If a lesson is to be learned, it must be that trying to cower a people into a submissive state with acts of oppression and aggression does not work. Look at the Palestinians and Iraqi, how submissive are they to acts of violence from outside sources." He then wrote "CanWest Global Communications, a Jewish owned multi-national, owns 200 media outlets throughout Canada and the world. Does anyone ever examine the hatred that this group teaches about First Nations people in Canada?" The Roseau River chief now admits he should never have sent the essay. Nelson called a press conference on April 18 to apologize for his remarks. "I realize now that my approach, tone and some of my comments were deeply hurtful and offensive to some members of the Jewish community," he said in Winnipeg, accompanied by the members of his newly elected council. "Today, I wish to apologize to the Jewish people of Manitoba and Canada for any offence, anger or hurt I may have caused. Had I not been out of the country last week, I would have gladly made this apology sooner." He called the letter a "late-night rush job" and said it should have been better reviewed prior to release. But instead of backing away from all reference to the Jewish faith of a reporter, columnist or owner of a media outlet with whom he had a problem, he chose to continue to push the matter. As he said during the press conference and repeated to Windspeaker afterwards, he was angry with a number of columnists and reporters in the local and national media who happen to be Jewish. He said those people write about "Natives" and should not be so sensitive when he writes about "Jews." "I do not intend to sit back if Jewish writers continue to write hateful articles or air hatred against my people," he said. "I challenge the Jewish people to help in maintaining peace in Canada. As our people have condemned David Ahenakew, so must you also confront your people when they say or write hurtful things about my people." If Nelson was hoping to put an end to the matter with his apology, he failed utterly. A B'nai Brith Canada spokesman echoed the sentiments of all anti-racism workers who have watched these events unfold. "Chief Nelson's feeble attempt at an apology just doesn't cut it," said David Matas, senior legal counsel to B'nai Brith Canada. "An apology isn't sufficient if it is accompanied by ignorance and repetition. There was no real understanding for the hurt that he had caused. Instead we found the Aboriginal leader standing his ground, and reiterating some of the age-old anti-Semitic canards that he had uttered in the first place. Matas said Nelson professes to have no true understanding of what anti-Semitism is. "In answer to his query, we say the following: Anti-Semitism is the act of vilifying an identifiably ethnic group-namely the Jewish people-for no other reason other than their being Jewish. When former First Nations chief David Ahenakew justifies the genocide of six million of our people, that is anti-Semitism. When remarks are made that suggest a so-called Jewish media monopoly aimed at spreading hate, that is anti-Semitism. And it must be condemned, along with all hate-filled messaging targeting any group of peoples. Today was a failed opportunity to embark upon a journey of dialogue and understanding. We repeat our earlier call urging that Chief Nelson immediately be removed from his position of leadership. The First Nations community must repudiate strongly Nelson's remarks and not close its ranks around him." Assembly of First Nations National Chief Phil Fontaine issued a letter to the editor of the National Post, a CanWest newspaper, chastising the Roseau River chief and disavowing the comments in the essay. Nelson and the chief have close ties. Nelson nominated Fontaine for national chief in 2003; he is a Fontaine loyalist and friend. "If the issue is how the media portrays our peoples and issues, then our messages must be directed at the media and not any one race or ethnic group," Fontaine wrote. "First Nations' people are well aware that the Jewish community has supported us many times in the past, as have other ethnic and religious groups. We believe in working to bring people and communities closer together. These events are particularly disturbing because no group in Canadian society is more familiar with racism, racial hatred and violence than the First Nations. Not only do our people put up with individual acts of discrimination on a daily basis, we continuously struggle with the effects of systemic discrimination designed to wipe out our languages and cultures." Two pages of the Terrance Nelson essay complained about media coverage of Native issues and situations. He started with the starlight cruises in Saskatoon where police officers were convicted of taking Native men out to the edge of town and abandoning them in the middle of a Prairie winter. He wrote that the mainstream media was not nearly as tough on non-Native people as they were being on David Ahenakew. He also predicted that violence in Native communities would increase, including violence towards police officers. Aside from the references about the Jewish faith, Nelson's complaints about the way the mainstream media deals with Aboriginal issues are not unusual. Many Native leaders, including Phil Fontaine, have spoken at length many times in the past about mainstream media's apparent biases when discussing Aboriginal peoples and their concerns. In his apology, Nelson disavowed the beliefs of Holocaust deniers James Keegstra and Ernst Zundel, but he refused to remain silent on the issue of bias against Native people in the mainstream media. "Do I see violence and increased anti-Semitism in the future? I must still say, 'Yes.' Do I want violence against Jews? Absolutely not. Let me say clearly, I am not a Holocaust denier. I do not believe in a Jewish conspiracy to take over the world. And I do not support, condone or accept any of the hurtful, hateful or criminal writings or practices of hate mongers such as James Keegstra or Ernst Zundel. I do not support, condone or accept Mr. Ahenakew's reported comments that Jewish people are a 'disease,' or that Hitler was justified in engineering the Jewish Holocaust that claimed more than six million lives. For the record, I condemn these reported comments, but I will not condemn the man as he is clearly not in the same league-or sport-as a James Keegstra or an Ernst Zundel, and I doubt he will ever publicly make such comments about Jewish people again. Is my apology to the Jewish people for my comments total and unconditional? Yes, for my own comments and the way I said it, yes. You have an apology today, but I must be honest: that apology does not mean that I will be silent-absolutely not," Nelson said. There were two main objectives the chief wanted to achieve at his press conference, he told Windspeaker on April 18. He wanted to convey his apology and "demand a national study on racism in the media. I mentioned specifically some of the things the National Post has done." He said he was attempting to warn the publisher of the National Post, Leonard Asper, that calling for Ahenakew's head and not being just as vigilant against those who attack Aboriginal people would create a backlash. Somehow, Mr. Asper's religious beliefs got caught up in the mix. "What the issue was that I wanted to warn the Jewish people and the Canadian people [of]: Don't make a martyr out of David Ahenakew. Don't punish him to the point that he'll gain the sympathy of other people," he said. He was angry that local media commentators employed by CanWest had been supportive of police officers fired for their role in the starlight cruises in Saskatoon. He wanted to know why one columnist advocated a healing circle for the officers and then went for Ahenakew's jugular. "Why is it that we as Native people, you want us to act like Ghandi, you want us to forgive and be non-violent every time something happens to us. You point to Martin Luther King and tell us, 'You should be better. You should be like Martin Luther King.' If you're asking us to be forgiving, how come you can't forgive David Ahenakew?" There are daily examples of hate crimes against Aboriginal people in Canada that never get a second look from police or prosecutors, Nelson said, and that rarely gets reported. "David Ahenakew should never have been charged. There's a double standard in Canada," Nelson said. As for the national chief's comments, Nelson said he understood. "I said, 'Phil if you want to duck for cover, duck for cover.' His position is to be a diplomat and he has to keep the doors open in Ottawa and I appreciate that. But the chiefs have to do their work. They have to make noise. It shouldn't be like Matthew Coon Come where we send a warrior to Ottawa. No nation sends a warrior to their embassies. You've got to have a diplomat," Nelson said. "What I didn't appreciate about the response from Phil Fontaine is that [he said] I was inciting violence. No way was I inciting violence. There's nothing in there that says I am preaching to have violence against Jewish people. What I said was violence will occur as long as they put David Ahenakew on trial. If they don't let it go, all it's going to do is keep on rubbing." Top