Government stalling First Nation

White River First Nation’s Chief David Johnny and council are getting awfully tired of waiting for some kind of answer from the Yukon regional office of Indian and Northern Affairs Canada (INAC).

 Two band council resolutions,  one asking for meetings to discuss the creation of a reserve, and the other seeking to deal with tax exemption matters, each following INAC's own processes, have received little response from the government. This February marked the one-year mark since White River First Nation (WRFN) first attempted to engage the department in those discussions. Finally fed up, Johnny wonders out loud if he should seek a court order “to get INAC to follow its own policies.”

During an interview in his office on March 26, the chief acknowledged that there’s a lot going on behind the scenes. Newly elected Alaska Governor Sarah Palin, who took office Dec. 4, is pushing for the Alaska Highway oil and gas pipeline project to go ahead as soon as possible, and the proposed path of the pipeline goes right through WRFN’s traditional territory.

WRFN found it relatively easy to get a meeting with Governor Palin in early March to explain their position.
“There’s something really drastically wrong when a First Nation has to go and negotiate with a foreign country to get an agreement when your local government can’t even come and knock on your door,” he said.

Since WRFN has not signed a self-government agreement — as 11 of the 14 Yukon bands have done with the Yukon Umbrella Final Agreement (UFA) — a lot of very important questions remain unanswered. Johnny also acknowledged that the change in government in Canada last year probably has the bureaucrats uncertain of just how to approach this complex matter.

But the chief wants answers. He and the council are extremely frustrated because they believe a reserve should have been created more than 20 years ago. Land under federal jurisdiction was set aside for First Nations in the Yukon. But the tax-exempt provisions of the Indian Act don’t apply to non-reserve land and this First Nation feels it’s getting a lesser deal than others. And WRFN researchers say their current land base is significantly lower than both the regional and the national average.
Johnny notes that there’s nothing in the UFA that stops Canada from converting WRFN lands set aside to reserve status. He points out that First Nations who have not signed final agreements South of 60 are not being forced to adhere to self-government agreements signed by their neighbors.

Adding to the outrage at White River is the knowledge that several new reserves have been created since 1990. On Aug. 5, 2005, the federal government announced the creation of 10 new reserves in Manitoba.

Johnny and his council and staff say they are being pressured to sign the UFA, an agreement that they simply don’t believe in.

Departmental information shows that bands in self-government agreements tend to get better funding than those that are not. Government officials say that serves as an “incentive” to get the bands out of the Indian Act and into self-government arrangements. Johnny calls it coercion.

“Yeah, you can see it in everything you do. We try to deal with this pipeline. Canada has to come to consult us. There’s no way around it. We have Aboriginal title. One thing that people have to understand is that they always say ‘Indian Act band.’ We were a government before the Indian Act. Then, to simplify their own lives, they put us under the Indian Act,” he said.

Roy Bird, a member of the Montreal Lake Cree Nation in Saskatchewan, is the Yukon regional director general for INAC. He assumed that post in April of 2006.

“We just want to make them step forward and make a decision on it. Like, Roy Bird, we haven’t even met with him yet. We want them to make a decision now instead of giving us the runaround,” Johnny said. “I think they thought that all the First Nations in the Yukon would sign an agreement.

“So they based the policy on that without even thinking that maybe one First Nation was not going to sign. So now they’re in a predicament because they never really did their homework to say, ‘White River’s not signed, so what do we do now?’”

Talk in the oil and gas industry—and in government circles—is that there’s a bit of a race between the Alaska Highway pipeline and the McKenzie Valley pipeline. If one is stalled too long and the other goes ahead, interest from investors in the second project may disappear.
Johnny acknowledged there is a bit of a gamble in standing on principle and perhaps delaying the Alaska Highway project, but he believes it will go ahead.

“They think they’re just going to wait out White River because they think that the membership’s going to pressure chief and council to have an agreement,” he said.

But this is his community’s best chance for self-sufficiency, he added, and the consensus amongst his people is to stand firm.

“If you look at it, 10 years of self-government that [Yukon] First Nations have had to improve their land and their communities, it doesn’t add up to me. There’s nothing there. I’ve seen it for 10 years and the process that the government is putting these First Nations through, I don’t want to go through,” he said. “They want to sit us out, saying, ‘We’ll make it tough for them,’ so our members say, ‘Go back to the table and sign an agreement.’ But our members say, ‘Forget it, if they don’t want to come back to the table on a new agreement then forget it. We’ll sit here and wait for them.’” He’ll sit down and negotiate a self-government agreement, he added, but the case law has evolved since the UFA was signed and he will insist on something much better for his people.

“If they want to negotiate with White River, we have to come to the table as a partner, with our view of saying we’re not negotiating under the Indian Act, we’re negotiating as a new government like Nunavut,” he said.
If he gets a deal that’s better than the UFA, he knows other First Nations will want to renegotiate. But that’s not his problem, he added.

“They know it’s going to cost them millions of dollars if they come back to the table with us and we change it. If we have a better agreement then you’re going to have all those other First Nations saying, ‘Hey,’” he said.

He’s spoken to oil and gas and pipeline companies and has been told that it would be no problem to pay WRFN enough in royalties to cross their land to make the community completely self-sufficient. He believes the territorial and federal governments are eyeing those royalties for themselves.

“Why can’t Canada say, ‘There’s an opportunity for White River to become self-sufficient.’ Why can’t they just say, ‘Hey, we’ll help you. We have the expertise. We’ll even go and negotiate with the pipeline companies with you if you really want to be self-sufficient,’” he said.

Johnny isn’t the only person who thinks the one-year stalemate is unacceptable. Calgary lawyer Gavin S. Fitch, appointed by Indian Affairs Minister Jim Prentice as a special ministerial representative to look into the matter, wrote a letter on March 26 informing chief and council that he agreed with their position on the delay.

Noting that he had satisfied himself that the request to have their land set aside converted to a reserve “is sincere and represents the current thinking of the WRFN leadership,” the lawyer wrote that “having regard to the length of time the request has been outstanding, Canada must deal with the request as soon as possible. In particular, Canada’s assessment of the request and response should not be deferred any longer based on my having been appointed as the minister’s special representative.” He said he expected a response “hopefully before mid-April.” After hearing no response as of April 10, WRFN faxed another request for a meeting on the matter.

Although WRFN staff say they still had heard nothing from INAC as of our deadline on April 18, Bill Rodgers, Prentice’s director of communications, told Windspeaker on April 17 that the government has now begun a review of the matter.

“Ministerial Envoy Gavin Fitch sent an interim report to the minister in March. One of his recommendations was that the department undertake an assessment of White River First Nation’s request for a reserve. The department has now started a review. Discussions are continuing between Mr. Fitch and the White River First Nation. It should be noted that to date, public policy in the Yukon has not included the creation of reserves for Yukon Indian bands. Instead INAC has focused on the completion of comprehensive land claim and self-government agreements,” he said.