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Okanagan Indian Band Press Release: Remove Legal Barriers to Access to Justice for Historical Wrongs

AFN calls upon BC and Canada to remove legal barriers to access to justice for historical wrongs
October 20, 2005
For Immediate Release

(Kamloops) At the meeting of the British Columbia Assembly of First Nations (“BCAFN”) on October 19, 2005, the representatives of First Nations from across British Columbia voted unanimously to endorse a resolution put forward by the Okanagan Indian Band calling upon the governments of British Columbia and Canada to stop hiding behind legislative provisions that prevent British Columbia First Nations from bringing Court actions for historic grievances against the Crown.

“Five years ago, then Indian Affairs Minister Robert Nault came to our community and publicly stated that they would accept our Commonage Reserve Claim for negotiations,” said Fabian Alexis, Chief of the Okanagan Indian Band.  “We fully expect that Canada and British Columbia will keep their promise and negotiate fairly and honourably.  If they don’t, then we are entitled to our day in Court.  The Crown should not hide behind limitations provisions to protect itself from its own wrongdoings”.

AFN National Chief Phil Fontaine also stated his strong support of the Okanagan Indian Band’s position and committed to follow up with Indian Affairs Minister Andy Scott.  “I am very concerned by Canada’s decision to withdraw from negotiating the Upper Nicola’s Commonage Claim and I am alarmed at the prospect that Canada may decide to try and do the same with the Okanagan Indian Band’s Commonage Claim,” said Fontaine.  “I intend to raise both issues with Minister Scott and the negative consequences of Canada unilaterally withdrawing from these negotiations.”

“Rather than a new era of reconciliation, the federal government, along with the government of BC, is driving us towards a new era of confrontation,” commented Chief Stewart Phillip, President of the Union of BC Indian Chiefs and Chair of the Okanagan Nation Alliance.

The Okanagan Commonage Reserve was set apart for the Okanagan Indian Band in 1877.  Soon after its creation, local non-native settlers urged that this reserve of 28,000 acres of prime Okanagan ranchland and lakefront be taken away from the Band.  After secret meetings between the Premier of British Columbia and the Prime Minister of Canada at the time (Sir John A. MacDonald), Canada purported to “relinquish” the Band’s interest in the valuable reserve.  Canada and British Columbia, fearing a negative reaction, deliberately kept the Okanagan Indian Band in the dark. 

“No surrender vote was ever held and no compensation was ever paid to the Okanagan Indian Band,” noted Grand Chief Ed John. “Thus the Okanagan Indian Band still to this day claims lawful entitlement to the Commonage Reserve and the governments of Canada and British Columbia can not hope to have constructive dialogue with First Nations without addressing these outstanding legal claims.”

“In 1989 the Okanagan Indian Band filed its claim concerning the Commonage Reserve in Canada’s Specific Claims Process and it took the government eleven years to finally accept that claim,” noted Shawn Atleo, Regional Chief of BCAFN.  “Yet the Okanagan Indian Band remains committed to negotiation as demonstrated by the successful resolution of their Boundary Claim in 2002.”

“Our approach has always been to give negotiation a fair chance,” said Chief Alexis, “but if Canada and British Columbia refuse to keep their word to the Okanagan Band, and fail to live up to their commitment to negotiate this significant claim in good faith, then they should let us take them to Court”.

The Okanagan Indian Band’s Commonage Reserve Claim is believed to be the largest claim submitted under Canada’s Specific Claims Process in the history of British Columbia.  Conservative, order-of-magnitude estimates value portions of this claim at close to three quarters of a billion dollars.

“British Columbia has committed to entering into a New Relationship with First Nations.  Premier Campbell has indicated that he will look through his legislation for laws that get in the way of this New Relationship.  What could interfere more  with a new relationship than a law that looks neutral on its face but has the effect of keeping the First Nations from bringing their claims to a Court of law?” noted Shawn Atleo.

Grand Chief Ed John, of the First Nations Summit, stated that the legislative reform proposed is a necessary one if Canada and British Columbia are to live up to their international obligations.  “Access to justice is a basic human right,” Grand Chief John stated.  “Canada and British Columbia have denied First Nations in this province access to the legal system.  This is a fundamental infringement of Canada’s international law obligations.”

Chief Fabian Alexis thanked the assembled First Nations for their support.  “This is an issue that affects all First Nations in the Province.  We greatly appreciate the strong show of support and unity at today’s gathering”.  Chief Alexis noted that Ontario, Saskatchewan and Alberta have already revised their laws to allow aboriginal claims to proceed.  “If Ralph Klein could do it, so can Gordon Campbell” Chief Alexis stated.

For more information, please contact:
Shawn Atleo
BC Regional Chief
Assembly of First Nations (BC Region)

Telephone: (604) 922-7733
Email: reception@bcafn.com
Grand Chief Ed John
First Nations Summit

Telephone: (604) 926-9903
Email: info@fns.bc.ca
Chief Fabian Alexis
Okanagan Indian Band
Telephone: (250) 542-4328
Email: info@okib.ca
Phil Fontaine
National Chief
Assembly of First Nations

Telephone: 613-241-6789
Toll-Free: 1-866-869-6789

Chief Stewart Phillip
Chair, Okanagan Nation Alliance
President, Union of BC Indian Chiefs

Telephone: (604) 684-0231
Email: ubcic@ubcic.bc.ca


Re:  Limitation Periods as an instrument of injustice to Aboriginal Peoples

October 19, 2005

Whereas, in 1891, after secret meetings between British Columbia and Canada, Canada wrongfully purported to “relinquish” the Okanagan Indian Band’s interest in its 28,000 acre I.R. #9 (the “Commonage Reserve”); and
Whereas the Okanagan Indian Band was never consulted about the “relinquishment”, never voted to surrender the reserve, and were never compensated for the reserve; and
Whereas, in 1989, the Okanagan Indian Band filed a claim under Canada’s Specific Claims process for the loss of the Commonage Reserve; and
Whereas, in 2000, the Honourable Robert Nault, Minister of Indian Affairs formally accepted the Commonage Claim for negotiation; and
Whereas, in 2000, British Columbia formally agreed to participate in the negotiation of a settlement of the Commonage Claim;
Whereas the Okanagan Indian Band is committed to achieving a resolution of Commonage Claim either at the negotiation table or through the Courts; and
Whereas British Columbia’s Limitation Act creates legal barriers that prevent First Nations access to the Courts to resolve their historic claims against the Crown; and
Whereas Canada’s Federal Court Act incorporates British Columbia’s limitations laws into Federal law; and
Whereas the combined effect of these laws is to deny Aboriginal Peoples in British Columbia access to the Canadian justice system with respect to historic wrongdoing by the Crown; and
Whereas Alberta, Saskatchewan and Ontario have reformed their legislation to allow aboriginal claims to proceed.
Resolved that the BCAFN urge the Provincial Attorney General and the Federal Minister of Justice to bring forward amendments to their legislation to remove the discriminatory time bars that deny First Nations in British Columbia fair access to the justice system, that are inconsistent with the New Relationship with Aboriginal Peoples, and that are inconsistent with the honour of the Crown.


Re:  Limitation Periods as an instrument of injustice to Aboriginal Peoples
October 19, 2005  

In 1877, the Joint Reserve Commission set apart a reserve of approximately 28,000 acres for the Okanagan Indian Band.  This reserve was I.R. #9 (also called the “Commonage Reserve”).  A map of the reserve is attached.
Shortly after the Reserve was created, influential white ranchers began to lobby to have the reserve eliminated, noting that it contained some of the best land in the Okanagan.  British Columbia’s Chief Commissioner of Lands and Works, F.G. Vernon, personally purchased lands within the Commonage Reserve.
The lobbying culminated in a secret meeting between the Premier of British Columbia and the Prime Minister of Canada (then Sir John A. MacDonald) where it was agreed that Canada would “relinquish” the Okanagan Indian Band’s interest in the Commonage Reserve.  The Okanagan Band was not asked for its opinion.  Archival documents show that Canada and British Columbia deliberately kept the Band in the dark.  There was no consultation.  There was no surrender vote.  There was no compensation.
In 1989 the Okanagan Indian Band filed a specific claim for the loss of the Commonage Reserve.  In 2000, the Honourable Robert Nault, then Minister of Indian Affairs, accepted the claim for negotiation.  In 2000, British Columbia agreed to join the negotiations.
The Okanagan Indian Band is committed to the negotiation process.  The Band has settled specific claims in the past and fully expects Canada and British Columbia to negotiate in good faith and honourably to achieve a lasting settlement of this long outstanding claim.
If Canada and British Columbia fail to negotiate fairly, it should be open to the Okanagan Band to have this issue resolved on the merits in a court of law.
If the Okanagan Band took this issue to Court, Canada and British Columbia would hide behind British Columbia’s Limitation Act which includes provisions that create legal barriers to BC First Nations’ access to the Courts to resolve their historic claims against the Crown.  One such provision is called the “ultimate limitation” period.
The overwhelming impact of the ultimate limitation period is to protect Canada and British Columbia from legal claims brought by First Nations.
The injustice of the Crown’s reliance on limitations provisions to defeat aboriginal claims is clear.  The Crown is using its legislation to protect itself from its own wrongdoings.  The Crown’s defence is based on the unfair premise that First Nations should have sued Canada and British Columbia during a time when: 

  • First Nations had no access to lawyers or the Courts;
  • First Nations did not communicate in the language of the legal system;
  • First Nations conduct was in large measure controlled by the Indian Agent;
  • For a considerable period it was illegal to raise money to advance aboriginal legal claims.
  • It was not generally recognized that First Nations issues could be resolved in Court (i.e. pre Guerin)

Alberta, Saskatchewan and Ontario have all amended their Limitations Act so as to allow First Nations’ legal claims to be heard by the Courts on the merits.
It is high time that British Columbia amend its legislation to do likewise; the New Relationship demands nothing less.
It is high time that Canada stop hiding behind British Columbia’s discriminatory Limitation Act and allow First Nations access to the justice system.

The Okanagan Indian Band asks for the support of all BCAFN members to advance this important legislative reform.


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