Tax fight will raise jurisdictional issues

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The question of whether Canada followed the rule of law in dealing with the acquisition of Native land could be addressed next October when the parties in R. v. Ochapowace Band and others return to Saskatchewan provincial court.

Chief Denton George of the Ochapowace First Nation (located about a two-hour drive east of Regina) and his council are preparing to take on the government of Canada over the spirit and intent of Treaty 4. If they're successful, the results of the court case could re-define the question of jurisdiction for every other band in the country.

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Ochapowace has been battling with Revenue Canada officials since 1991. Revenue Canada wants the band to collect GST at its ski resort; the band says it doesn't have to.

"I don't plan on losing.Even if we do lose, we still don't plan to collect GST. Even if I have to go to jail."

Chief Denton George

Photo Credit: Paul Barnsley

In the months remaining before they return to court, Chief George and his council are preparing to explore the wording and the intent of Treaty 4 as explained through the oral history provided by the Elders of the region. George attended a conference on Indigenous international issues in Regina on Dec. 15 and 16, sitting quietly throughout the two days of discussions, looking for new ideas and developments in international law that will help his council's court fight.

The fight is based on allegations that Canada has wrongfully tried to turn international, nation-to-nation treaties into domestic agreements that exist at the whim of the Canadian government. George said that it was clearly not the intent of the treaty and he believes he has the ammunition to prove it.

Twenty-five thousand people make use of the Ochapowace Ski Resort each year. Built on reserve land along the Qu'Appelle River, the longest run is more than a kilometre in length.

The band was charged in late 1998 with failing to collect and remit GST on goods and services provided at the on-reserve resort. A flurry of complex motions and counter-motions erupted in January 1999 when controversial lawyer, Dr. Bruce Clark, began advising the band. A counter-claim was filed in Regina provincial court that challenged the federal government's jurisdiction to collect taxes or force the band to collect and remit taxes. Clark, who gained national attention while acting for the Native protesters during the Gustafsen Lake confrontation in 1995, owed professional fees to the Law Society of Upper Canada (Ontario) and was not in good standing. He was adopted as an member of the Ochapowace community so he could act in court on the band's behalf as a layman and not as a member of the bar. Even though the Saskatchewan court decided not to hear him, most of the crucial court papers filed by the band are clearly his work.

The lawyer who has spent most of his professional life pursuing the argument that the rule of law requires that disputes between the Crown and Indigenous nations cannot be heard in a domestic court because the court is in a conflict of interest, was recently disbarred in Ontario. He claims, in his recently released book, Justice in Paradise, that his disbarrment was prompted by his insistence on showing courts they were perpetuating colonialism and genocide against sovereign Indigenous nations by not excusing themselves and sending such disputes to an impartial third party tribunal.

Clark is no longer acting for the band and is currently working on a land claim for the New York state Mohegan Indians which involves the island in the Hudson River on which the Statue of Liberty stands. George, unlike many band council chiefs who have severed relations with the colorful lawyer, had good things to say about his former legal advisor.

"Everything that Bruce Clark talks about re-enforces our beliefs that we're a nation and Canada can't impose its laws on us," George said.

From the time the first GST assessment was received in 1991 until the charges were filed in 198, the chief and council had ignored assessment notices from Revenue Canada officials, maintaining that they had no jurisdiction on Ochapowace territory.

"Every time we got a bill from them, I'd just throw it in the garbage. We really didn't challenge it," Chief George told Windspeaker on Dec. 16. "Originally, we told them we'd collect GST if we're allowed to keep 10 per cent for an administration fee."

That, as far as the chief and council were concerned, would have been an arrangement that respected the band's jurisdiction. When charges were filed last year, George was advised that answering the charges in court would be admitting that Canada had jurisdiction over his people and his territory.

"I'd thought about not going to court," George said, "but we've decided to try and prove to the court that they don't have jurisdiction."

He appeared in court in response to the charges but refused to enter a plea, an action which would have recognized the court and been completely opposite to the legal position he will rely on. The judge entered a not guilty plea on his behalf.

Chief George said he will seek out Elders who can testify about the culture of his people and about their understanding of the intent of the treaty. He said his council plans on rehearsing the court presentation this summer. He also expressed an interest in asking special United Nations rapporteur, Dr. Miguel Alfonso Martinez, to appear as an expert witness at the trial. Martinez, a professor of international law at the Institute of International Relations in Havana, Cuba, recently tabled his 10-year study of treaties to the UN. Many of his conclusions support the band's legal position.

Asked if he believes his community's case could have Canada-wide or even world-wide legal impact, George answered simply, "It will."

He has no doubts about the validity of his people's claims to sovereignty.

"I don't plan on losing," he said. "Even if we do lose, we still don't plan to collect GST. Even if I hae to go to jail."