Accounting for Unpaid Debt
OUR SUBMISSIONS to international trade tribunals continued to draw attention to INET and the new reality that Indigenous rights are not simply human rights, they are economic rights as well. We were approached by academics who were looking at what this development might mean for Indigenous peoples in other countries and internationally. In 2002, a greatly respected Indigenous rights activist and academic, Professor Russel Barsh, organized a seminar for Nicole and me at New York University, and in 2003, I was invited to a NAFTA seminar in Mexico City. In 2004, Nicole and I were asked to draft a paper on our Indigenous submissions to trade tribunals for the Chapman Law Review.
Given the evidence, international economic institutions were recognizing what Canadian governments refused—that we indeed have economic rights on our territories. The question then was: What does Aboriginal title mean for the larger Canadian economy, and what are the real implications of Canada’s refusal to recognize it? As INET grappled with this question, I found myself back in New York City in 2003, checking into the Vanderbilt YMCA on East 47th Street, for a meeting at Standard & Poor’s head office in the Financial District.
Standard & Poor’s is near the top of the world’s financial pyramid. It generates more than two billion dollars in revenues, and more than $1.5 trillion in assets are connected to S&P’s indices. The company describes itself as “the world’s foremost provider of independent credit ratings, indices, risk evaluation, investment research, data and valuations.” It has offices in twenty countries, including in Canada, but I was determined to speak to the head office first. I believed that they would be able to give me a more independent assessment of our claims.
My ticket to New York had been paid by the World Council of Churches, which had invited me to a seminar in the outskirts of New York. The churches were looking at the impact of globalization and they had invited me to give the Indigenous peoples’ perspective. It was an interesting meeting and our cause found an encouraging amount of support from the churches—a nice change from our original relationship with Catholic priests and other Christian pastors who arrived on our territories. But I must admit that during much of the event, my mind was on my upcoming appointment with Standard & Poor’s.
It had not been an easy one to arrange. Nicole Schabus had called the Standard & Poor’s office as soon as my World Council of Churches trip was confirmed. They put her in contact with the analyst at the Canadian desk, and it would be an understatement to say that he was surprised to hear about a Canadian Indian who wanted to meet with him to discuss Aboriginal title. He tried to brush Nicole off, but she is a determined woman. She pushed back. It took her forty minutes on the phone to wear him down to the point where he said, “Okay, okay, send me your information and I’ll meet with Mr. Manuel.”
When the World Council of Churches event was over, the organizers dropped me off in front of the Vanderbilt YMCA. I spent the evening in my room preparing for the Standard & Poor’s meeting as if it was a law school exam. I intended to put this question to them: If Canada had this outstanding debt to First Nations on Aboriginal title lands, something the WTO had recognized, where was it in Canada’s books? We knew that the government wanted “certainty” by extinguishing our title for a small amount of land and a cash payment, but what was the value of those unextinguished lands?
I wasn’t expecting anything like a dollars-and-cents answer, but I was curious to know if the credit rating agencies would agree in principle that our Aboriginal title to our lands should somehow be reflected in the government’s accounting.
I rose early that morning and took a swim in the Y pool, then headed underground to puzzle my way through the New York subway system. An hour later, I succeeded in popping up into the sunshine amid the glass towers on Wall Street and made my way to the Standard & Poor’s head office. I was not at all sure of what sort of reception I would get. I had assumed, given the fact that the official had needed to be pressured to meet, that he would be neutral at best. But I feared that I would get a continuation of the hostility that Nicole had initially encountered on the phone.
My fears turned out to be groundless. Several officials met me in the conference room. The lead was Joydeep Mukherji, director of the Sovereign Ratings Group. He introduced me to Roberto Sifon-Arevalo, research assistant, Latin America Sovereign Ratings, and explained that his own primary responsibility was to financially analyze Canada and that Mr. Sifon-Arevalo was responsible for Latin American countries. The fact that they had brought in the Latin American expert suggested that they were looking to see if the Indigenous angle was transferable to other parts of the hemisphere.
From their initial questions, it was obvious they had read our submissions and the Delgamuukw decision, and they were interested in exploring the matter further. I told them quite directly that I thought that financial monitoring agencies needed to pay greater attention to matters regarding Indigenous peoples. I said that it is important to report accurate information to investors, and Canada and British Columbia are in a serious case of conflict of interest in reporting on it. I wanted to bring them up to date about this situation based upon my interpretation of the facts.
I then outlined the legal and constitutional issues regarding Aboriginal title. I was very frank, describing the strengths and weaknesses of our case. I explained that the primary responsibility for dealing with Aboriginal title resides with the federal government, and that officially close to 60 per cent of the Indian bands in British Columbia were negotiating—some of them since 1993—but that more than 40 per cent of us were not negotiating. I explained that the negotiators were represented by the First Nations Summit, and that the rest were represented by the Union of B.C. Indian Chiefs.
I told them that we had had two major meetings during the last six months, one in Kelowna and one in Prince George, where the First Nations Summit and the Union came together in an ad hoc Title and Rights Alliance, because the negotiators themselves were dissatisfied with the lack of progress. I explained that we were all seeking recognition and reconciliation of our Aboriginal title with Crown title. Existing federal government policy sought only to extinguish our Aboriginal title for very limited treaty rights. But up until that point, only the Nisga’a Tribal Council had accepted the government offer.
I also outlined our Harper Lake logging case and how it fit in with the jurisdiction issue. I told them that we had just won our case on receiving provincial funding at the Supreme Court of Canada. I briefly outlined our successful submissions to the WTO and NAFTA and said that our economic arguments had the backing of a fellow New Yorker, Nobel Prize winner Joseph Stiglitz.
While I was speaking, they listened closely, interrupting only to ask for more details. I was impressed with their thorough knowledge of Canada. They were familiar with the country’s political leadership—cabinet members as well as the provincial premiers—and it was interesting to see how they integrated the new information on Aboriginal title and rights into their overall picture as I spoke.
When we got down to the question of accounting for Aboriginal title and uncertainty on the books, I provided them with a copy of the Summary of Financial Statements of the Province British Columbia, March 31, 2002. It showed that since 1997, when the Delgamuukw decision came down and when the Nisga’a Treaty was reaching the Final Agreement stage, the B.C. government had reported that it manages its liability for Aboriginal title through negotiations under the Comprehensive Land Claims Policy and the B.C. Treaty Commission’s Treaty Process. The province told independent financial monitors that the majority of bands were involved in Nisga’a-style negotiations and the minority are contending they have other rights, and that this issue will likely have to be addressed in court.
I suggested that this report did not accurately describe the economic trouble British Columbia is in, since the Aboriginal title holders of a large percentage of B.C. territory had no intention of surrendering their title under any circumstances. They were demanding that their ownership be reconciled with Crown title as the Supreme Court of Canada had outlined in Delgamuukw.
I pointed to the accepted accounting procedures contained in the International Accounting Standards Board regulations, particularly number 37, which demands that contingent liabilities and contingent assets be disclosed with sufficient information “to enable users to understand their nature, timing and amount.” The Government of British Columbia was withholding vital information by basing its contingent liability solely on the Nisga’a deal and not taking into account the more than 40 per cent of B.C. bands that were not even inside the process and the rest of the B.C. bands that, while inside the process, had refused to accept the Nisga’a model for more than twenty years. The B.C. books did not offer anything close to the “sufficient information” demanded by international accounting principles.
When we had gone through the material, Mukherji connected the dots himself. Canada, he said, did seem to have some substantial hidden liabilities when it came to Aboriginal title.
In subsequent visits to both the New York S&P office and the Canadian S&P office in Toronto, we were told that what we needed to do was to begin an alienation study to account for all of the timber, mineral, oil and gas, and other resources that have been taken off our Aboriginal title lands, not just in British Columbia but across Canada. With that we will have a figure to begin future discussion with.
It is this case that we must make with greater force at the international level and within Canada. Canadian federal and provincial governments are telling their citizens and the world that everything is under control and that the only problem with Indigenous peoples is some sort of governance problem. They are trying to ignore our rights to self-determination and to economic control over our territories. But in the twenty-first century, the world is not in tune with Canada’s nineteenth-century colonialist approach.
While we were moving forward on the international front, troubles at home were increasing. My absences played a role in this. But the issue that was raising the most concern continued to be the Sun Peaks battle. The protests continued throughout 2002 with the youth and Elders at the Skwelkwek’welt Protection Centre returning to the mountain after every eviction. They kept the camp going through hot summers, rainy falls, and cold winters with a heroic determination to protect our land. I was proud that among the strongest defenders of the camp were my twin daughters, Mandy and Niki. They had grown up in the struggle. When they were just four years old, they had ridden with Beverly on the Constitution Express to Ottawa for the protests that led to the inclusion of Section 35 in the Constitution. They had grown up knowing we have Aboriginal title and rights to our territory, and they were determined to defend these rights at Skwelkwek’welt.
With Hubert Jim at his Sutikalh sovereignty camp near Melivin Creek, May 2010
The Native youth and the Elders at Skwelkwek’welt were not alone. There were several battles like this going on in Canada at the time. In 2000 Hubert (Hubie) Jim, a Lil’wat from the Mount Currie band in the mountains to the west of Neskonlith, set up a camp on traditional lands at a place they call Sutikalh, halfway between Lillooet and Mount Currie, to keep former Olympic gold medallist Nancy Greene and her husband, Al Raine, from building a ski resort in the mountains behind the camp. Greene, now a Conservative senator, is a big promoter of the Sun Peaks development and owns the Cahilty Lodge, a hotel in Sun Peaks, so there was an instant solidarity between the camps.
Hubie, a warrior to the core, has always been supported by Mount Currie activists like Rosalin Sam and Alvin Nelson and others, but he was also often the lone fighter staying at the camp. He and his friendly dogs have stayed in the camp through thick and thin, despite having shots fired at them, and he remains there today. It is always a pleasure to visit him and, on the second of May, the date that the camp was set up, people from all around the nearby communities join him for a feast.
Around this same time, in December 2002, the people of Asubpeeschoseewagong Anishinabek (Grassy Narrows First Nation) in northwestern Ontario, led by activists Steve Fobister and Judy DaSilva, also launched a blockade. They and other young people from the band went out onto a road leading past their reserve and stopped the logging trucks carrying away trees cut on their territory. “It was the last thing we could do because everything around us was disappearing,” Judy said. “The clean water, the clean air, our way of life, our traditions, like the wild rice picking and even blueberries were disappearing.”
That battle, too, continues today. I have visited the community many times, usually with a gift of traditional foods from my people, and I have, whenever possible, brought their case to international meetings.
In the B.C. Interior, however, our defenders at Sun Peaks were under increasing pressure. With every passing month, businesspeople and the local media upped their rhetoric, demanding harsh measures to deal with our people on the mountain. This clamour reached a crescendo when tour bus operators threatened to pull out of Sun Peaks because they were afraid of being confronted by information pickets on the road leading to the resort. Behind the scenes, the provincial government was working overtime to pressure, or simply bribe, local chiefs away from their support of the protest. In this climate, local racist elements felt emboldened, and more and more verbal and even physical attacks were directed at Indian people at Sun Peaks and throughout the region.
I visited the Skwelkwek’welt camp often and worked closely with Janice Billy, one of the main leaders of the protest, who had recently received her doctorate in education. I defended them in the press and praised their commitment to our land. As chief, I offered whatever support I could to their cause. But I was aware of a growing fear among the people of the rising white backlash, a fear that was reaching a level I had not seen before. It says a lot about our vulnerable position in the world that many of our people, rather than confronting the mounting racism head-on, began to question the protesters for bringing it to the surface. The leading voices in fuelling this opposition were a number of local chiefs, and their motives were not hard to assess. Some were looking to make deals with the province, and all were receiving an unequivocal message from the provincial and federal governments to back off from any confrontation with the developer.
The first to break ranks with us was Bonnie Leonard from the Kamloops Indian Band. Chief Leonard criticized the Elders and youth at Skwelkwek’welt in the press, and in response, Janice Billy sent her an eloquent letter saying that now, more than ever, was the time “to protect our traditional knowledge, language, and culture, all of which is based on the land.” The letter continued:
If we lose this, we cannot consider ourselves true Secwepemc. Maintaining our connection to the land and our language is the only way we will remain as a strong Secwepemc Nation.
We not only want to protect the land for our traditional use but are protecting our survival as Secwepemc. We are dismayed that you, as a Secwepemc person, cannot see and respect our position.
A few months later, I received a direct warning shot from Chief Nathan Matthew of the Simpcw band, whom I had replaced as leader of the Shuswap Nation Tribal Council. He pulled me aside after a Tribal Council meeting and told me his band was considering leaving the Tribal Council because of the racism that the Sun Peaks protests had unleashed on all Indian people. He said it was affecting even the Indian guys who were working at the mill. A climate of fear was being created.
“Why are you blaming the victims?” I asked. I pointed out that in trying to protect their land, and standing up against the ever-expanding resort, the youth and Elders at Skwelkwek’welt were not responsible for white racism. They were the first victims of it. So I told Nathan we should be battling against the developers who were stealing our land, not against our people who were defending it. But even as I spoke, I could sense that this was just the beginning. Deals were being made in back rooms. Forces were being put in motion, and Nathan was not speaking only for himself. I called an early election of the Tribal Council.
This suspicion was confirmed when on March 12, 2002, Geoff Plant, the B.C. attorney general, announced to the media that he had met with five of the six chiefs in the region “but not with Art Manuel because he has a separate agenda. We have proposed five or six resolutions,” he said, “but we needed the First Nation members to cease their occupation first. Art Manuel did not seem interested in problem-solving.”
The news that the chiefs were meeting behind the back of the chair of the Tribal Council to undermine their protest infuriated the people at Skwelkwek’welt. They fired off a letter to all of the chiefs demanding an explanation. But the die had been cast. Within two weeks, Nathan was re-elected chair of the Tribal Council. At the time, I couldn’t resist pointing out that it was Plant who appeared to be the real chair, but today I better understand the forces that keep our chiefs beaten down. Our government band councils live off the crumbs thrown them by the federal and provincial Indian Affairs departments, and they live in fear that any bothersome noise will get them all booted from the room. It is naive to expect people to bite the hand that feeds them, especially, as in the case of many of the chiefs, if they are individually being very well fed by Indian Affairs.
Discontent, however, was also seeping into my own community. In late fall 2002, my brother Richard, who was on the band council, came to see me. Trouble was brewing, he said. Supporters were drifting away. Opponents—and there are always opponents—were saying that I was too often away and making accusations that I was living the high life in world capitals. Richard knew the truth, that my fancy hotel was actually the YMCA with the bathroom down the hall, but he thought I should be warned.
It’s not so serious yet, he told me. But it could be. He suggested I simply do what chiefs often do when support is wavering. Just before the election, you offer some carefully selected band members temporary jobs and you will get their vote, as well as the votes of their family and extended family. It just takes a handful of minimum wage jobs to the right people—that is another measure of the desperation our people live with. But I knew that what Richard was saying was true.
For me, it was a time for soul-searching. The political eruptions were coming at the same time as my personal life was changing and my marriage was ending. That is a particularly difficult thing in a small community where everyone is involved in some way in your personal life.
On the political level, I knew that continuing to serve as chief while dropping the larger battle for our land rights would not do our people a service. As chief I could only continue to manage our people’s poverty. It was a time when I badly missed my brother Bobby, who had always been the one I turned to at moments like this. He understood better than anyone the hard personal choices that are often part of political struggle.
Finally I told Richard I would rather lose the election than win it with the tired old fraud of vote buying with jobs that only reminded us all of our helplessness. Richard nodded and said he’d see what he could do.
I didn’t bother campaigning or anything like it for the vote in January 2003, but I could feel the turning away that Richard had predicted coming to pass. On election night, I stopped by the community hall and glanced at the first numbers. After having won the previous four elections for chief, it was over. I went home, and Beverly called me around midnight with the final number. The local Kamloops paper, which had been one of the loudest voices in attacking the Sun Peaks protesters and my support of them, must have held the presses until after midnight, because they had the final count on the front page of their morning edition under a headline celebrating my defeat.
It was bitter medicine for me, but it was, indeed, medicine. I was freed to focus on my work with INET and on the larger issues that mattered to my people. Perhaps the people had seen that with the chief’s duties and those of the larger struggle, I was stretched too thin. Whether intentionally or not, they provided me with the remedy.
Nothing important changed in my community. The people were not at all interested in entering the extinguishment negotiations offered by the B.C. Treaty Commission process, and the new chief was pressured into quietly supporting our youth and Elders at Sun Peaks, though in a far less visible way than I had.
Still, I wouldn’t be honest if I didn’t admit that after receiving the call from Beverly, I slept fitfully. The human ego is not so easily silenced. It was a long dark night of the soul. But in the morning, the sun comes up. You get up and you go back to work. After eight years as chief, there were many files that had to be wrapped up and prepared to hand off to the incoming administration.
In the months after the election, I spent more time working with the protesters at Skwelkwek’welt. The people continued to build permanent camps and even log houses on our territory in the mountains, and the resort continued to use the RCMP to move in, tear down the structures, and arrest our youth and Elders. But the Skwelkwek’welt protesters also began to link with other activists who were focusing on British Columbia’s 2010 Winter Olympics to bring attention to the province’s unsettled land claims. During this period, we picked up an important friend and ally when Naomi Klein covered both the Sun Peaks battle and the Olympics protest in an article she wrote in July 2003 for The Guardian. As usual, she was able to cut to the heart of the matter:
Let’s be clear: this is not about a ski hill. It is about a plan to build a small city in the mountains, a place for urbanites to have a weekend getaway—and for developers to make a killing on real estate. Let’s be clear about something else: the massive expansion of the Sun Peaks Resort is an act of violence. British Columbia’s First Nation peoples have already been robbed of so much. It is the duty of all Canadians living on stolen land to join in the struggle to defend what is left.39
Naomi had interviewed me about the Olympics protest, and I told her that we were seeing the same kind of split there that we had seen locally with Sun Peaks. On one side were the chiefs and entrepreneurs who saw the Olympics as an opportunity—a chance for a new community centre, some affordable housing, a way to sell West Coast Indigenous art. On the other was a growing grassroots movement of people who still hunt and fish, and see industrial-scale tourism as a threat to their survival. They are the ones, not the chiefs, who depend on hunting to meet their needs. More tourism is going to take food off their tables, and they are going to end up on Vancouver’s Hastings Street. That’s what happens when you force Indian people off their land.
Over the next few years, Naomi came out to visit the Protection Centre several times. In our conversations, I learned a great deal about the wider struggle she was committed to. She has set an example on how to forcefully push for change in a principled way, and still not lose your sense of humanity or—to the delight of her friends—your sense of humour. She is not at all intimidated by power and showed herself quite prepared to work with the people who are resisting and trying to make fundamental change in society. We had several occasions to speak publicly together, and I was always amazed at how well she understood our issues. At one gathering at the Vancouver Library, where we were on the same panel, she said:
Arthur talks about extinguishment. It is one of those bureaucratic phrases you hear when people talk about treaties. I think … it is deliberately bureaucratic so that people kind of tune out. But if you think about the word extinguishment, this is a violent term … it is not a bureaucratic term. Extinguishment is the snuffing out of life, the snuffing out of an entire culture.
That is what you see—extinguishment in process, you actually see extinguishment in process, except for there is a moment when you can actually intervene and stop the extinguishment before it is too late. That is the moment we are in right now. This is the truth time.
Are you going to sleep, are you going to stay asleep on your responsibilities, our responsibilities and duties, or are we going to wake up with Irene over there and strut down main street in Sun Peaks.
For the activists who were even then taking a spiritual and, too often, a physical beating, it was balm to their souls. Her personal support helped to carry the weary protesters onward.
In fact, we prepared everywhere for long battles. On the logging issue, we continued to push our Harper Lake initiative through the courts in defence of our Aboriginal title and rights, and we continued to make our case to the world through INET as we built up our network with increasing support from Indigenous nations in Central Canada. And we found that, in our battle for our lands and our right to self-determination, we were gaining new allies at almost every turn—in Canada and around the world.
By this time, Nicole Schabus and I had become a couple. She had moved to Canada to work with INET and had taken courses at the University of British Columbia to get her Canadian accreditation as a lawyer. We have remained together as partners in struggle and partners in life, and she has contributed immeasurably to both. Now a law professor at Thompson Rivers University in Kamloops specializing in Aboriginal law, she continues to make a major contribution to the work of INET, and to my family and community. A woman with a brilliant mind and a generosity of spirit, she has thrown herself with enthusiasm into the task of spoiling my grandchildren and serving community members with free legal help. Meeting Nicole has been one of the great unexpected benefits of my political work.