Experts discuss major law and taxation issues

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Against a backdrop of stalled treaty negotiations in British Columbia, close to 100 people, including international delegates, attended the Aboriginal Law and Taxation Conference Nov. 6 to 8 in Vancouver.

The conference was sponsored by the Native Investment and Trade Association.

While some were saying gains on the road to self-determination have been made as a result of the government's pending financial legislation and court decisions compelling corporations to consult with bands, the business people present generally were saying "don't wait any more for the treaties, just starting making money."

The event opened with a reference to 1995-2005 having been declared by the United Nations as the Decade for Indigenous People. The long-term reference is valuable, because the ideas of governance, with bands managing their own finances, are taking years to develop.

Similar to Canada, New Zealand has had a lengthy process to get Maori land claims settled with the Crown, according to lawyer David Tapsell. He explained that although the tribunals have cut the time it takes from 10 to 3.5 years, this is only part of the process, as a treaty settlement still needs negotiation. Out of more than 70 New Zealand groups eligible for treaty settlement, only three have settled and 12 are in negotiation. Business revenue can be better than waiting for treaty settlements, delegates heard.

First Nations businesses that network and jointly bid on contracts for the Alberta tar sands pull in $35 million a year, according to Fort Chipewyan businessman Dave Tuccaro. The head of the National Aboriginal Business Association noted these revenues may be even more than treaty settlements over 10 years.

Several speakers discussed consultation, especially rulings by the courts that governments and corporations must consult with First Nations before development projects are begun.

One example was the Aug. 19, 2002 decision in the British Columbia Court of Appeal on the Haida II case discussed by Anne Giardini, assistant general counsel of Weyerhaeuser Company Ltd.

She said, "two judges found that Weyerhaeuser will need to do something in order to accommodate the Haida interest, although what that something may be is still open to debate."

Concerns were raised about the definition of consultation and the amount of consultation needed. Lawyer Tom Isaac of McCarthy Terrault spoke about the definitions of consultation, as ranging from occasional or mere, to consultation that is tantamount to vetoing of a project.

Changes in government legislation were outlined, including the First Nations Land Management Act, and the First Nations Fiscal and Management Act.

Thomas Howe, acting director of Lands and Trusts Services of Indian and Northern Affairs Canada, spoke about current and proposed changes in legislation. He gave special emphasis to the expansion of the First Nations Land Management Act.

In 1999, the Act gave 14 First Nations the ability to operate under their own land code instead of the land provisions of the Indian Act. In March, the program was expanded to include 30 more First Nations every two years. More than 50 have expressed interest in being included, Howe said.

The controversial First Nations Fiscal and Statistical Management Act was presented to communities over the late summer and early fall, and received first reading in Parliament on Dec. 2.

A key part of the bill permits First Nations, via the First Nations Finance Authority, to issue bonds and go to international money markets for financing. Bonds would raise money for infrastructure projects.

Preliminary talks with the New York finance community gave the First Nations bond an "A" rating, said Strater Crowfoot, Indian Taxation Advisory Board manager.

Crowfoot reviewed the other three financial institutions that are created by the Act. The First Nations Financial Management Board is intended to aid communities in setting properly managed financial institutions. Th First Nations Statistical Institute is still defining exactly how it will work with Statistics Canada in gathering and disseminating data on First Nations. The First Nations Tax Commission would take over the process of approving real property tax bylaws and help balance community and ratepayer interests.

In current tax regimes, 90 First Nations in Canada are taxing property, and are raising $40 million-plus annually. More than 50 of them are in British Columbia.

A First Nations Sales Tax is about to be adopted and collected by several bands, according to lawyer Bill MacLagan of Vancouver. He warned First Nations to closely examine all the costs of collecting a tax before going ahead, as it could be that it costs more to collect it than what the tax is worth to them.

Gordon Benoit of the Mikisew Cree First Nation commented on what it known as the Benoit decision, which effectively released Treaty 8 Indians from paying tax, upholding their argument that they understood an 1899 treaty gave them tax-free status He was not optimistic the ruling would stand in the federal Court of Appeal.

First Nations that do tax have usually exempted their band members from paying taxes. Johnathan Kesselman, an economics professor at the University of British Columbia, noted that non-band lessees are taxed without representation, since they pay taxes to the band without being able to vote on band issues. Band members, on the other hand, have representation without taxation.

Jack Woodward, the lawyer representing Chief Roger Williams of the Xeni Gwet'in First Nation, issued an open invitation to watch and support his client in Supreme Court hearings set to determine whether or not the Xeni Gwet'in have title to, that is, own, their traditional lands in the Nemiah Valley, Chilcotin. The hearings started in Victoria on Nov. 18.

Given the usually long length of treaty negotiations, Woodward explored the idea that "Litigation is cheaper and quicker than negotiation, at least in B.C," and comes in at a fraction of the cost.

Some delegates took that statement to mean litigation is always better than negotiation, according to comments by session moderator and lawyer Brian Calliou. Calliou tried to clarify that Woodward only referred to one case, and that negotiation may be valid depending on the particulars of each case or issue.

Woodward and New Zealand's Tapsell both mentioned how the cost of getting justice is a major challenge for Aboriginal people. One important point is that Woodward's team have already won the right to have the government pay for the lawyers, now a team of 10, arguing the Williams (Xeni Gwet'in) case.

The decision to fund the defence in that case shows that the treaty process isn't working, and indicates the courts are urging the government to take action, added Vancouver lawyer Simon Margolis.

Environmentalists are also watching the Williams case, as the province's last herd of wild horses lives on the Nemiah lands and their existence is said to be endangered by development on Xeni Gwet'in traditional territory.