Playgrounds and Fortresses
WHILE WE WERE IMMERSED in the softwood lumber battle abroad, a new ground war was erupting at home, one that would show our people’s courage and commitment, but also lay bare some of their divisions. It crept up on me, but it would lead to a number of Neskonlith Elders and youth, including two of my daughters, going to jail in an agonizing battle to protect our land. This was a painful lesson about how fiercely the Canadian government still fights in its war against our people.
The issue was Nippon Cable’s Sun Peaks development. I had signed the initial protocol when I was first elected, with an expectation of getting some benefits for our people. I had asked that our Secwepemc communities be given the right to supply gravel for the construction. It would have been a lucrative contract for us, and it seemed within the parameters of the protocol that we be given at least a preferential bid. I had pushed forward this idea in meetings with the Sun Peaks management, but finally we learned that we would be deprived of a preferential bid—in fact, we would not get to bid at all. The contract was given, with no call for tenders, to a white contractor. The Sun Peaks management idea of economic development for our people was to offer us space on our own mountain for an arts and craft store, which we knew would be a money-loser. Nothing more.
This financial snub was a minor issue, however. The deal became truly disturbing when we began to realize the extent of the proposed development. Nippon Cable, the company purchasing the Tod Mountain ski hill, was planning more than an upgrade of the tiny facility. When my children were small, it had been little more than a rope tow with a couple of trailers to warm up in between runs. The company now meant to supplant it with an all-season mega-resort, an instant city of condos, hotels, and restaurants on our territory.
All this was taking place in the area we called Skwelkwek’welt, which is part of our Neskonlith Douglas Reserve 1862 and only sixteen kilometres as the crow flies from Neskonlith. In our language, Skwelkwek’welt means alpine region; the area encompasses Tod Mountain, Mount Cahilty, and Mount Morrisey. Skwelkwek’welt also includes the mountain watersheds with McGillivray Lake, Morrisey Lake, Cahilty Lake, Eileen Lake, and all of the systems flowing in and out of these lakes. This area provides us with a variety of plant foods such as roots, berries, plant stalks, mushrooms, and lichens, as well as serving as a home to deer, moose, bear, beaver, lynx, cougar, and wolverine. As one of the last places in our territory where we can still hunt for food, gather medicines, and continue to practice other Secwepemc cultural traditions, it has a special importance to our youth who are learning our traditional ways.
As we looked into the Nippon Cable Sun Peaks master plan, we learned that the proposed resort activities included heli-skiing, cat-skiing, and snowmobiling. These are forbidden in most alpine areas in Europe because of the noise and their impact on wildlife. In addition, artificial snowmaking would be used to create and maintain a full snow cover, using chemicals and bacteria prohibited elsewhere. Many of these activities would not be allowed in European ski resorts. Mass winter tourism as it is presently practised in Canada is not sustainable environmentally, socially, or economically. And all this would take place on our lands just adjacent to the Neskonlith and the Adams Lake reserves.
The extent of the development was only gradually revealed to us. The first phase was to begin as an all-seasons destination with 1,100 employees and 400 permanent residents. Onsite accommodation would increase from 100 beds to over 5,800, and lift capacity would be increased to allow the delivery of 8,000 people a day to the mountains. The next stage called for an increased capacity to 20,000 beds.
This rapid expansion had not been part of our protocol with Sun Peaks, and now this instant city was being implanted on our territory. This land-devouring project was fed by a government land giveaway scheme that sold our Aboriginal title land to the developers at a rate that accelerated with the pace of development. The more land they developed, the more they were given.
This massive real estate deal would turn our territory into a playground for the rich. The pressure of tens of thousands of tourists descending on a mountain ecosystem would be immense; the water, sewage, and garbage needs of the resort would all take their toll, forever changing the plant and animal habitats of these pristine mountain ecologies. To solidify possession, the provincial government even invented a new administrative structure they called a “mountain resort municipality.” This designation gave Sun Peaks municipal powers, even though it did not have enough permanent residents to justify them.
As the extent of the development became clear, our Elders became extremely concerned. For many, like Elder Irene Billy, the concern was personal—it was the site of her family trapline. In 1998, the Elders asked for a meeting with Masayoshi Ohkubo, the head of Nippon Cable, to explain to him that the government did not have the right to lease this land to him until the land and title issues in Canada had been addressed or meaningful consultation had occurred between the Neskonlith and Adams Lake bands, the government, and the B.C. Assets and Land Corporation.
It took a lot of pleading on behalf of the Elders, but Ohkubo finally agreed to meet with the people in the Adams Lake community hall. They told him, “We have seen our title and rights ignored, our way of life attacked, our lands damaged and fenced in, the fish, game, and plants we depend on depleted, and we have seen our children suffer because of all this. Our people have suffered and endured poor treatment from the non-Secwepemc for many generations.”
They expressed serious concern over the threat to traditional medicines posed by the development. Medicinal plants, which many Elders use and share with their families, are generally fragile, blooming in specific places at specific times. It does not take much to upset the balance. Elders also spoke about it being an unspoiled area where they took young people from the Secwepemctsín language immersion school to show them the traditional ways, making the region a vital link between our past and our future. There was a note of pleading in their voices when they asked Ohkubo to spare the region, or at least to greatly lighten the development footprint.
Ohkubo left the meeting without making any commitments. And ultimately, he made no changes. Nippon Cable went ahead and initiated the $70 million expansion plan without a single concession to our people.
After listening to our Elders’ concerns, I sought a legal opinion to review our options. Our lawyer confirmed that such a project on our Aboriginal title lands absolutely required prior consultation with our people and possibly our consent. The fact that no meaningful consultation had taken place certainly put it on shaky legal ground. This was especially the case for the planned expansion that had not yet been built.
Then our lawyer looked at the means we could employ to force the company to listen. There were only two. Get a court injunction to halt construction while talks took place, or take direct action in the form of symbolic informational roadblocks to put political pressure on the province and Nippon Cable to negotiate with us. A court injunction, our lawyer said, would be difficult, because the construction was underway and injunctions were generally given on the balance of convenience. Halting construction would require the layoff of hundreds of workers and cost millions of dollars in delay, something most judges would be reluctant to order.
It was after I came back from another UN Human Rights Committee meeting in Europe in the fall of 2000 that Janice Billy, an activist member of our community who was then working on her doctorate in education, informed me that the Elders and youth had gotten together to put up a small protest camp in Skwelkwek’welt. This action fit with the strategy of proving our title on the ground, and I instantly supported it.
The protest remained peaceful while we tried to initiate meaningful negotiations with Sun Peaks to accommodate our traditional uses and legal rights to the land. We were not successful. The company said it had the approval of the province and that was all that was required.
The following June, the conflict began to escalate when the B.C. Assets and Land Corporation issued a lease to Sun Peaks for the land our camp was located on. Sun Peaks then sought an injunction and, in July, the police moved in and arrested four of our people, including two Elders, charging them with criminal contempt for refusing to leave the camp. On August 13, our people were physically blocked from access to Mount Morrisey, which is one of our traditional hunting grounds and spiritual places. Our people then set up the Skwelkwek’welt Protection Centre at the entrance of Sun Peaks ski resort to monitor environmental damage, to inform visitors and investors of the ongoing unresolved land issue, and to assert their title and rights to unceded lands.
Over the next several years, five Skwelkwek’welt Protection Centres, two traditional cedar bark homes, a hunting cabin, two sacred sweat lodges, and one cordwood house—home to a young Secwepemc family—were bulldozed or burned down by the resort or by persons unknown. None of these acts of were investigated by the police, who, we noticed, were increasingly acting like hired security guards for the resort.
In fact, the RCMP acted shamefully throughout this incident. The quality of person we were dealing with was reflected in officer Monty Robinson, who went on to media fame as one of the officers who was involved in the tasering of Polish tourist Robert Dziekanski in the Vancouver airport.
The Sun Peaks protest first reached a national audience when the twenty-four-hour music TV channel MuchMusic planned its heavily promoted annual spring break snow festival at Sun Peaks for March 2001. The five-day event was called Snow Job, which somehow seemed appropriate to us. The people at the Protection Centre protested to MuchMusic and we ended up in a press release battle with the station founder and owner, Moses Znaimer, who had recently been awarded the Human Rights Centre gold medal for the promotion of tolerance and creative race relations.
In its dealing with our people, MuchMusic was no better than Sun Peaks. In fact, as they issued their public statements, it became clear that they were lifting content from the Sun Peaks publicity department. We asked Znaimer to live up to his reputation, support the human rights of the Secwepemc people, and cancel the MuchMusic incursion onto our territory. He didn’t listen. But the Snow Job event ended up giving our people an important national platform to raise our issues.
In retrospect, the protest was perhaps too successful. After Snow Job, the B.C. government and Sun Peaks redoubled their efforts to isolate the youth and Elders at the Protection Centre and increased the use of the police to put pressure on them. At the same time, they launched a Gustafsen Lake–style smear campaign against the protesters, impugning their intelligence and their sanity and whipping up the latent racism against our people in the region.
The government and police dropped any pretense to even-handedness. In the spring of 2001, when twenty members of the Native Youth Movement walked through the village singing traditional Native songs and calling for a moratorium on the development, several young white guys on a bar terrace began shouting racial slurs at them. One of the men strode off the terrace and approached the Native youth shouting, “Fucking Indians, get off our land!” and “You want war? Come on!” He swung several punches in the direction of one of the young men, then directed his attention to my daughter, Niki, shouting at her and, finally, hitting her in the face.
The police moved in and arrested not the man who had committed the assault, but my daughter. Later, a cabin in the woods that the protesters were living in was burned down, and our people began to receive threats of violence if we entered nearby towns. After fanning this local anger, the resort began leading a call for mass arrests of the protesters and went back to the courts to get another round of injunctions against us. Once again, Elders and youth were arrested. It was infuriating for our people to see eighty-three-year-old Irene Billy led away in handcuffs for the crime of occupying her own family trapline.
During this period we pressured the federal government to exercise its duty to recognize and affirm our rights on our Aboriginal title lands, or at least order that we be consulted by the province and the resort before the new developments took place, as was spelled out in the Delgamuukw decision. This was, we saw, the only way the dispute could be settled. As the Supreme Court judges underlined several times in Delgamuukw, justice depended on “the honour and good faith of the Crown.” In Sun Peaks, the Crown made a mockery of both.
We had asked the federal Indian Affairs minister, Robert Nault, to meet with us to discuss the issue. Nault, to our dismay, said that there was no role for the federal government in the dispute because it dealt with provincial lands. In claiming this, he was wilfully ignoring Canada’s Constitution as well as the Supreme Court decision on Aboriginal title. We were not the only ones asking Nault to help solve the dispute; the local press were also frustrated by the federal government’s refusal to shoulder its responsibility.
As I wrote in a letter to Prime Minister Chrétien, “The Minister’s refusal to address the issues surrounding Sun Peaks has meant that a solution is impossible to reach—even with all of the goodwill of our people and the provincial government.”
Police photograph Elder Irene Billy during her arrest on May 23, 2001, at Sun Peaks
Unfortunately, the prime minister and his government decided to give over the conduct of Indian Affairs to the RCMP. This was a subject I also addressed with the Mounties. During a meeting at a restaurant in Chase with the officers in charge, I told them that we had a legitimate reason to be up at Sun Peaks. They were doing irreparable damage to the mountain that impacts our hunting and gathering. For us, the RCMP were not peace officers in this dispute. They were Indian agents—government employees with guns—who were not enforcing the law but backing up one side of the argument. And in this dispute, the Supreme Court had already ruled that Aboriginal title and rights had to be taken into account. The RCMP officers made no reply. The arrests of our people continued, and Sun Peaks fanned the flames of racism with calls for increased police violence against us.
By this time, the tensions were not only with the white community, but also within our own. In Neskonlith, and even more so in other Secwepemc communities, people began to have a genuine fear of white backlash and government reprisals. This last fear was felt most acutely by the chiefs. They were in the business of delivering government programs and services, and it is at moments like this that our dependency becomes most evident. Some understand that the only way out is to break that dependency once and for all, to assert our right to our lands and begin to build true Indigenous economies on our territories. Many others test the wind and, if it is blowing too strong, flee back to their subsistence benefactor at Indian Affairs, which pays their salaries as well as the community program funding. I could feel this happening, and I honestly did not know what to do about it.
Finally, a crack appeared in the government wall. The B.C. attorney general and minister responsible for treaty negotiations, Geoff Plant, called and left a message on my phone. He wanted to talk. I was encouraged when he was quoted that day in the press saying that the dispute at Sun Peaks was the symptom of a much deeper problem and admitting that the police “are not the appropriate body to deal with these issues.”
I called him back, and we agreed to meet at the Prestige Inn in Vernon. I had never met Plant, but I certainly knew of him as the lead government minister in the recent mail-in referendum against Aboriginal rights in the province. This was a vote on a series of eight ridiculously worded questions intended to strip Indigenous peoples of their basic rights in the province. All of the leading Christian churches, the Canadian Jewish Congress, Canadian Muslim Federation, B.C. Federation of Labour, and a host of other groups had denounced the referendum as racist. Finally only a third of B.C. residents even bothered to vote on it.
I was sitting in the meeting room when Plant strode in and, in a John Wayne voice, said, “All right, Chief, you caused enough embarrassment to Sun Peaks and to the provincial government. It’s time to negotiate. What do you want?”
I told him we were not interested in embarrassing anyone, but that tens of millions of dollars of investment was being plunked down on our land and we had to protest or he would say we were agreeing to it.
He thought for a moment. “So you don’t want to get caught sleeping on your rights. I see your point. We did use that once against a band on down the coast. What if we provide you with a letter recognizing that you are asserting your rights. Then get the people off the hill and we can start negotiating.”
I told him that I couldn’t tell the youth and Elders what to do, but I would take his offer to them.
I spoke to Janice Billy. She went up the mountain and came back the next day. She said the protesters said it made no sense for them to leave our land to negotiate whether we had the right to be there, and they decided they will only move off the mountain if he puts a moratorium on development.
I transmitted their decision to the minister. The hammer dropped.
On November 8, Plant broke off all discussions with us. In his letter to me, he said, “The tension at Sun Peaks has escalated to the point where members of the public feel that their safety is threatened, largely as a result of the perception of increased violence and past aggressive behaviour by occupants of the protest camps.”
It was a cleverly written introduction to what would follow. Because Plant knew better than to accuse our peaceful protests of being “violent,” he states only that “the public feel that their safety is threatened” by the “perception of increased violence.” A perception that he and his government, and Sun Peaks, had been doing everything to create over the previous six months. The letter continued:
In the interests of de-escalating tensions in the area and protecting public safety, both the Skwelkwek’welt Protection Centre and the McGillivray Lake camps must be removed in order to create a climate where negotiations are possible. Given the current climate at Sun Peaks and your community’s apparent unwillingness to remove the protest camps, I am regrettably of the view that we have exhausted options to negotiate a resolution. Therefore the Province must look to other remedies.
We all knew what was coming with the “other remedies.” On November 13, KAIROS, a coalition of church groups, tried to intervene on our behalf. In a letter to Plant, they said:
KAIROS has great respect for the restraint displayed by the Secwepemc people, especially those at the Skwelkwek’welt Protection Centre and at McGillivray Lake. Their perseverance, and ability to maintain a peaceful and non-violent presence in an atmosphere thick with racial animosity, and amid acts of intimidation and provocation, is a testament to the depth of their commitment and dedication. Forcing the Secwepemc peoples out of these areas does nothing to resolve the land rights issue, but serves only to criminalize the Secwepemc peoples.36
The plea went unheeded. On November 16, 2001, the police moved in, accompanied by B.C. Assets and Land Corporation, armed with pepper spray and clubs. They beat and then arrested the protesters en masse and seized all of their personal effects at the camps. The Canadian state once again showed its teeth to Indigenous peoples, and soon the police were not just assaulting the people at the Protection Centre, they moved onto reserve land as well.
Among those arrested on the mountain were my two daughters, Niki and Mandy. Mandy was jailed for sixty days. She was separated from her four-month-old baby boy, whom I took care of with help from the child’s grandmother.
It was a sombre time. Once a week, I would drive down to Burnaby with the child to visit his mother, with a cooler to carry back the milk she expressed for him every day. But when I arrived at the jail, I had to turn the infant over to a guard who brought the baby to his mother in the meeting room. I could not carry the infant to her directly, because the rule said she was allowed to have only one visitor at a time. I would wait in my truck for the guard to bring the child back out, and I remember feeling not so much anger as shame for the whole system that had produced this situation. This is not just how whites treat Indians, I thought, it is how they treat each other. If I needed any inspiration to continue to try to get back our people’s birthright, our land and our independence, taking my grandchild to the Burnaby jail for those brief visits with my daughter was more than enough.
The criminalization of my people continued with more than fifty arrests for inhabiting our own land. It was the Canadian state and its industrial developers at their very worst, brushing aside Canadian law and our constitutional protections and using the police more as goons than as peace officers. The Canadian government reaction to our legal rights has been similar to the nineteenth-century approach of U.S. president Andrew Jackson, who, when Supreme Court Chief Justice Marshall ruled that the Cherokee Nation had title to their lands and internal sovereignty, said, “John Marshall has made his decision—now let him enforce it.” The Cherokee were then marched out of their lands on a Trail of Tears.
Fortunately, the twenty-first century is far from the nineteenth and our people, whether the government wishes it or not, are not going to be marched anywhere. While all this was unfolding on our territory, INET was putting forward our brief to the WTO and finding new openings at the international level.
One of the problems with WTO procedures generally, and especially when it comes to amicus curiae submissions, is that those who submit them do not necessarily find out if their submissions have been accepted. Nicole Schabus and I had made it inside the WTO fortress in Geneva because the organization was hosting a seminar for NGOs. As the only Indigenous person in a room full of government and NGO representatives, I was determined to put the Indigenous point of view before the conference. But I spent virtually the entire meeting with my hand up trying to get on the speaker’s list.
Like a waiter in a busy restaurant, the chair managed to float his eyes past me every time until the very distinguished fellow directly in front of me put up his hand. When the chair looked at him, addressing him as “Your Excellency,” he could not avoid meeting my eyes. I was put on the list.
When I was finally given the floor, I spoke about Indigenous peoples’ rights to their land, the need for much greater environmental protection of the forests of the world, and the need to give Indigenous peoples the right to refuse the kind of rapacious development that was being practised by multinationals around the world.
My speech was met by a disapproving silence. Finally, one of the panellists, a fellow with long white hair and a Tom Wolfe–style white suit, seemed to speak for the room when he said that Indigenous peoples should not have the veto over development. As the room gave a general nod of agreement, my heart sank. Faced with attitudes like this, I feared the WTO would never accept our brief.
My misgivings were soon dispelled by Nicole Schabus. She had gone to the front desk and called up to the Softwood Lumber Dispute desk to enquire directly about the status of our submission. The same staffer who had previously put all sorts of roadblocks in our path was now suddenly friendly. She was happy to inform us, she said, that the WTO panel had accepted our submission.
Not only that, but the three adjudicators—who are independent international trade law experts—had decided to circulate our submission to all the parties (Canada and the United States) and the third parties (Japan, India, and the European Commission, which represents European Union member states in international trade matters) for comment. This again was without precedent. It showed that international trade tribunals were taking our arguments seriously and that nation-states would have to start to deal with them.
Another sign of our success came after the seminar. A number of government representatives wanted to talk to us. Those who were involved in the Softwood Lumber Dispute asked us to come to their missions to meet with their trade experts. I was even approached by a representative of the Canadian Mission, who invited me to a reception. But I reminded him that we had an independent submission accepted before a WTO tribunal. If the Canadians wanted to meet, it should be a formal meeting, taking place in our territories.
Our priority at the time was meeting the Americans, the other party directly involved in the dispute. But by the time Nicole and I made it to our meeting with them, it was already after hours. The U.S. Mission was out of town and we had to spend almost all of our remaining cash to get there by taxi.
Entering the mission grounds was like entering a U.S. military base. It was heavily guarded by machine gun–toting marines, who waved the taxi over to where they could examine the undercarriage with cameras. When we were let off, a marine sergeant was waiting at the embassy door. I gave my name and he replied, “Yes, sir, we have been expecting you.” He led us to the U.S. Trade Representative’s office, where we were greeted by a couple of giant trade lawyers, who towered over us at about six foot six. They took us into a meeting room, which, I noticed right away, was well stocked with peanuts and other snacks, soft drinks, and a surprising amount of alcohol. I hadn’t had time to eat that day, and the sight of all those snacks made me realize how ravenously hungry I was.
But the Americans got right down to business. They wanted our input into the bizarre turn Canada’s arguments had taken. The Canadian trade lawyers were suddenly trying to evade the whole subsidy issue by recasting their position. On the softwood lumber issue, they said that they really were not calculating stumpage as a payment to obtain ownership of the trees. They suggested that the forest industry in Canada had such long-term forest licences that they amounted to proprietary interests in the forests and that, instead of stumpage, the companies were simply paying a tax on their revenues.
This was an astounding argument, and it was inconsistent with Canadian law. It was clearly crafted to escape the application of international trade law. This position would mean that the forests were no longer owned by the Crown. Not only Indigenous peoples would be excluded from ownership, but the Canadian people would also be tossed from the national forests. Canada was arguing that the Crown had given the country’s forests over to the forestry companies—many of which, ironically, were American owned—and was simply taxing their revenues.
The U.S. trade lawyers asked if we understood the new Canadian position in the same way, that Canada was basically saying the companies owned the trees as they grew in the public and Indigenous forests. We agreed that that was what they were saying. So they asked: “And they do not pay you as Indigenous peoples anything for taking the trees from your forests?”
We had to answer a couple of times that, no, our people were not paid a cent. They repeated the question, just to make sure. We were asked the same question by representatives of the European Commission. They all treated us as Indigenous peoples who are the owners of our lands and resources; only Canada denied it. Even in the United States, the tribes are some of the biggest holders of forest lands. They get paid for the trees taken from their lands, and they are actively involved in the forest industry. But they cannot compete with lumber imported from Canada, because here the timber is taken without any compensation for Indigenous peoples.
So Canada was now saying that the forestry companies owned the forests. It was here that our Aboriginal title argument had its most important effect, because it showed that even if the Crown could give over the forests to the forestry companies, they could only give over the Crown ownership portion. They could not at the same time hand over the Aboriginal title, because they did not own that in the first place. Our legal standing, our proprietary interests in the forest, and our submission helped counter the new Canadian assertion that they had given over the forests to the forestry companies.
We left the U.S. Mission and that room full of snacks with growling stomachs and headed onto the street. We didn’t have enough money for a taxi back to the hotel, so we began the long trip back to the city on a maze of buses. We knew, though, that we had made an important step. The Canadian government continued behind its fortress of refusal toward us, but big cracks were appearing from outside pressure on those walls. The acceptance of the INET WTO submission37 was an enormous victory, and it set a precedent that stands today and can be built on by Indigenous peoples from around the world. It recognizes that we do indeed have economic rights that have to be taken into account in local, national, and international economic decision-making.
The solidity of our victory was confirmed when it came to the NAFTA panel. Canada was taking our submission seriously. The Canadian negotiators had hired a U.S. trade law firm, supported by a Canadian law firm, to counter our submission, with a focus on technical and procedural reasons why our submission should not be accepted. They did not even counter our substantive arguments, which we had based on both international and Canadian law.
NAFTA tribunals consist of trade law experts appointed by the two countries involved in the dispute. So it was even more amazing that in 2002 our independent submission was accepted by the NAFTA panel, which had been nominated by Canada and the United States. Canada had spent excessive legal fees on trade law firms (whose bargain rate begins at $1,000 an hour) to counter our submissions, while ours had been prepared on a pro bono basis by Nicole, putting forward arguments based on Indigenous rights and international trade law. This further evidences the strength of our arguments and the weight that international trade tribunals attach to Indigenous rights.
Unable to beat us at the WTO and NAFTA tribunals, the Canadian government looked for ways to put pressure on our base. The chiefs in the Interior Alliance suddenly began getting letters from bureaucrat and Métis lawyer Al Price, “Advisor, Intergovernmental Affairs, B.C. Region DIAND [Department of Indian Affairs and Northern Development].” Price faxed them “a copy of the submission of Chief Art Manuel to the World Trade Organization on behalf of the Interior Alliance.” He explained that he was involved in a group of federal officials from various departments who were considering the submission and the government’s response.
Price’s letter pointed out that “the issue of US countervailing duties on softwood lumber exports is having a devastating effect on the industry and economy generally in B.C. Also as you are aware, many First Nations are struggling to gain a larger share of the industry, market and benefits of timber resources in B.C.”
Then he got to the point. “I am asking if your First Nation was aware of this submission, and whether Chief Manuel does, in fact, represent you in this exercise and approach. It will be significant for the necessary officials to have in their minds as we formulate a response, and we want to make sure your voices are not being misrepresented.”38
With the Softwood Lumber Dispute gaining the stature of a national emergency in Canada and the creaking noises of the government agents moving through the Interior Alliance, we knew that we had to have the best possible support for our case. So to bolster our arguments, we sought out an economist who had the best possible credentials, Joseph Stiglitz. Stiglitz, an American economist at Columbia University, New York, had won the Nobel Prize in Economic Sciences in 2001. He had been a senior official at the World Bank and chaired President Clinton’s Council of Economic Advisers. Time magazine and others who rate such things routinely list him as one of the hundred most influential people in the world.
I was able to put our case directly to Professor Stiglitz in 2003. The meeting was arranged through one of Nicole’s contacts, Anton Korinek, a young Austrian acquaintance of hers who was one of Stiglitz’s senior academic assistants. We sent him information outlining our dealings with the U.S. Department of Commerce and requested a meeting. With Anton’s help, we were invited to meet Stiglitz at his office at Columbia University.
We thought that we had been invited for an informal discussion, but when we arrived, Stiglitz was all business. He wanted the unvarnished facts of our WTO case so he could make up his own mind. I summarized our position on Aboriginal title and described the Delgamuukw decision.
This was not new territory for Stiglitz. A couple of years before, as chair of the Council of Economic Advisers to the U.S. president, he had dealt with the previous round of the Softwood Lumber Dispute, but he noted that the Indigenous arguments added a different dimension. Earlier in his career, he had also provided expert evidence and an independent economic analysis for the Seneca tribe when the lease they had given settlers over the town of Salamanca, New York, expired and the tribe did not want to renew it. Stiglitz calculated that the difference between the present discounted value of what was paid and a fair market rent was enormous, amounting to hundreds of millions of dollars. As a result, the federal government was forced to pass a bill providing past compensation of over $300 million and increasing annual lease payments from $57,000 to $800,000, with future increases built into the deal. Those settlers who refused to pay the increased leases were evicted.
When I finished making my case, he said, “Okay, now I see. You have proprietary interest in the trees.”
As former senior vice president and chief economist of the World Bank, he understood that the failure of the Indigenous peoples to receive remuneration for the resources on the land in which they had had a longstanding interest was not only unacceptable, but also destructive to their economy, lives, and livelihoods. This failure, he said, also raised serious and complicated questions for assessing the impact of Canadian softwood lumber management policies, potentially including those at issue in the dispute. Since the real benefactors of the failure to provide remuneration of the Indigenous peoples were the forestry companies, the issues of fair trade and distortion of trade could not be ignored.
Stiglitz agreed that it will be important in the future to provide just remuneration to the Indigenous peoples, and he showed that he understood the complexity of the issue. In assessing the amount of compensation for past use of Indigenous land, he said, you will have to look at the core economic, environmental, social, and cultural values that Indigenous peoples associate with it, then determine the true economic worth of the land and its resources, and give value to both current and cumulative past infringements. This was a clear validation of our position from one of the leading economic lights of our generation. We left New York with a sense of vindication. And of hope.
The endorsement of our economic arguments by Stiglitz showed yet again how out of step Canada was becoming with the world. We began to ask ourselves how long Canada would be able to hold out in its nineteenth-century policies toward Indigenous peoples. The answer, we now understand, is that it will hold out as long as we, the Indigenous peoples, allow it to.
But international trade law is one area that we must continue to revisit. Unlike many of the world’s human rights treaties, trade law has real sanctions that can be used to force a change in economic policies.
During the last round of the Softwood Lumber Dispute, between 2001 and 2006, the United States alone collected over four billion dollars in countervailing duties. Canadian industry was pushing hard to get these monies returned, but U.S. industry did not want to see them go back to their Canadian counterparts who had been subsidized in the first place. They did indicate, though, that they would be ready to return part of the monies to Indigenous peoples, since we had been the ones paying the real price, having our trees removed without our consent or remuneration. We are talking about a billion dollars a year for the forest industry alone—add up similar subsidies to other industries and you know why Indigenous peoples remain poor. And with billions of dollars in revenue for access to our lands and resources, we could also ensure more economically and environmentally sustainable development.
In the end, the Canadian industry pushed for and accepted a negotiated settlement of the Softwood Lumber Dispute in September 2006, where part of the monies was returned and they agreed to Canadian exporting provinces either collecting an export tax that ranges from 5 per cent to 15 per cent as prices fall or collecting lower export taxes and limiting export volumes. In other words, they accepted increased taxes rather than sharing with Indigenous peoples. It is up to Indigenous peoples to hold them accountable and make sure that, in the future, Indigenous proprietary interests are remunerated.