for St'át'imc Úcwalimcw:
This web page provides an opportunity for fellow St'át'imc to get informed and educated about the proposed In-SHUCK-ch Treaty and it's impacts on our Nation.
"As St'át'imc people we need to have a educated understanding about the proposed In-SHUCK-ch Treaty and how it will impact our Nation as a whole. We are a communal people that have always recognized our responsibility to our relatives throughout our territory".
Words of the St'át'imc
SAMAHQUAM ELDER MICHAEL SMITH
Our children and grandchildren should have access to the Declaration Of The Lillooet Tribes statements from May 10 ,1911. When those Chief's gathered at Spences Bridge. Can one imagine how long that trip was from Samakwa and Tenas Lake? Our Grandfather 's Chief's Harry Nkasusa from Samakwa and James Smith from Tenas Lake Band. They fought for our territories so we descendants could live in our own Sovereign Nations Territorial Lands. We Elders are only borrowing the land from our future generations. As we carry on with these land questions. The next generations will inherit our debts, by the way this is turning out. All my relations! KaLa'k.
Thank you for all these information criteria. Those are the missing links to the treaty process that was not given to the Samahquam Ucwalmicw. That is what I have been saying all along. All Stat’limc Ucwalmicw came from Nseqt Mountain. So, it is fitting that we Stat’limc are the rightful owners of our Sovereign Nations Territorial Lands. Continue to protect our territories for future generations survival. Kukstem.
SCC CHAIR - HEREDITRY & ELECTED CHIEF DON HARRIS
Inshuckch has been transferring the community's economic development into Inshuckch name, this means that Inshuckch gets the revenues instead of the community, own source revenues are deducted from transfer payments. Meaning that money for the communities shrinks as treaty gains the revenues.
Another thing, when they talk of Inshuckch mountain [Nséqets], when I was stood up as hereditary chief, I was given the task as caretaker of Inshuckch mountain along with late Chief Allen Smith.
JAMES DOUGLAS LOUIE
If there is no TREATY the original inhabitants still have all the jurisdiction over and in their country, land, territory any and all included, no one else has jurisdiction!
HEREDITARY CHIEF KAKILA
On Sunday, October 2, 2016, 10:34 AM, Clarke Smith wrote:
To Statimc Chiefs and Samahquam Chief and Samahquam Members October 2. 2016 we are seeking political and financial support
This is the Louis vs Louis which effects decisions made at Inshuckch for treaty and interim measures re forest range agreements! At no time did the majority of the Samahquam Members (the electors) consent to these decisions that effect their title and rights! Delgamuukw Supreme Court decision is quoted here too! Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010:
115 A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests.
And logging aboriginal title is breach of trust! You cannot use title lands if denies future generations their rights to the land
In Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256
[86] First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.
This means that Samahquam Council and BCTC and bc forest have breached trust by allowing Inshuckch Treaty to nave borrowed 30 million to negotiate treaty! It is in fraudulent state! Because the constituents did not approve these BCTC loans nor were the constituents ever notified or consulted or voted on such loan agreements
This then opens the door for Samahquam Members (the constituents/electors) to push for a court injunction and request a forensic audit on all Inshuckch entities that participated in these decisions ! This puts the Samahquam Chief and Council in conflict because they are members and Board of directors of these Inshuckch entities! Apparently and recently the Inshuckch N'Quatqua treaty resources inc a federal incorporated society has been shut down and replaced by a new entity the Inshuckch management Society to accept the BCTC loans! It is likely the same Chief and Council are the Board! These decisions were made without a vote or consent if the Samahquam Members (the constituents/electors) Presently this Samahquam Chief and council have put on our Samahquam October 22,2016 agm a resolution for the members to vote to approve or reject a BCTC loan agreement for 2016/2017 !
We are requesting Statimc Chiefs Council for financial assistance to push for a court injunction to stop this illegal Inshuckch Treaty and its interim measures forest range agreements and the recent illegally held Samahquam Elections! Plus we will seek damages for the logging (logging that has caused environmental damage cause land and mud slides and annual road washouts) since 2004 where chief Brenda Lester signed forest range agreements in 2011 and 2014, we seek damages against the Bc Government for issuing timber permits on lands that are aboriginal title held communally by the Samahquam and Statimc tribe! We will also seek damages at the BCTC treaty process for allowing early land transfers to the Inshuckch Nation re IPP projects Kakila creek, Rogers creek, billy goat creek and other creeks within Sanahquam and Statimc aboriginal title! In March of 2013 the Samahquam Chief and Council surrendered these creeks for IPP to the Inshuckch Nation and that the Rogers Creek would be owned by the Inshuckch Nation including all revenue derived from the IPP , logging and mining! And again here the Sanahquam Council are members of the Inshuckch Nation who will benefit financially without the consent of the majority of the Samahquam Electors/constituents
By this email communication we request our Statimc Chiefs council financial support to gain court injunction or judicial review on these legal matters !
Thank you Kakila hereditary Chief Clarke Smith Tenas Lake of Samahquam Statimc tribe
Troy Hunter: First Nations, Indian bands, fiduciary obligations, and free, prior, and informed consent by Troy Hunter on June 8th, 2015 at 2:42 PM 1
Vancouver law courts. SHUTTERSTOCK The B.C. Court of Appeal made a unanimous three-judge panel decision on June 3 in Louie v. Louie in relation to an Indian band council and breach of fiduciary duty. The case involved the Lower Kootenay Indian Band, which is part of the Ktunaxa First Nation.
The appeal court had overturned the earlier decision and agreed that in a fiduciary relationship such as that of a band council to its band members that the band councillors are not permitted to put their personal interests first or to make a profit, without having obtained the prior consent of the membership as directed by section 2(3) of the Indian Act which states:
Unless the context otherwise requires or this Act otherwise provides,
(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
Additionally, the B.C. Court of Appeal confirmed that band councils are created under the Indian Act, they are creatures of statute whose powers relate to “administration of Band affairs on their respective reserves”, and that they have “no other source of power”. It seems some band councils operate under a guise of what is referred to as custom; however, the BCCA pointed out that such custom is different than what would attract s.35 Constitutional protection. However, some band councils exercising self-government authority beyond the scope of the Indian Act power under the so-called “inherent right” or “inherent jurisdiction” might want to ensure that they have been duly authorized to do so.
While the decision in Louie v. Louie dealt with a band council awarding themselves a one-time honorarium bonus without having obtained the consent of the membership, the implications also involve other areas. In essence, the top court in British Columbia has upheld the Indian Act on the basis of the fiduciary principle.
When considering the notion of free, prior, informed consent (FPIC) as required under the United Nations Declaration on the Rights of Indigenous Peoples, and in examining the Indian Act, including the Aboriginal Affairs and Northern Development Canada (AANDC) Manual for the Administration of Band Moneys, it seems that the notion of FPIC is well embedded in the enactment and manual as it relates to the communal rights of aboriginal peoples. I recently posed the question to a FPIC forum hosted by Carleton University as to who has authority to give free, prior, informed consent; it seems that there are varied opinions. Under the Louie v. Louie BCCA decision, it’s clear that band councils operating under the Indian Act have consent requirements with their membership.
First Nations and Indian bands in undertaking due diligence ought to ensure they have not only obtained the free, prior, and informed consent of their members but that they have the evidence to back this up. The manual states, “Since section 69 authority [band management of revenue moneys] will ultimately rest with the Bands’ Chief and council. Departmental records must demonstrate that the consent of the membership had been obtained.”
It would seem that, the idea of free, prior, informed consent is a communal right. This communal right seems to have been first identified in the Royal Proclamation of 1763, where it is stated, “if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose”. It then appears that the notion of free, prior, and informed consent was embedded in the Proclamation made in 1763 and is now a right or freedom that belongs to the aboriginal peoples’ themselves.
Moreover, section 25 of the Canadian Charter of Rights and Freedoms states:
Section 25 – The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
The notion of consent was also referred to in the landmark Supreme Court of Canada case Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, where aboriginal title was officially recognized. In that case, at paragraph 76, the chief justice stated:
The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.
In the Tsilhqot’in case, it was not identified as to how to obtain the consent of an aboriginal group; however, these are communal rights and band councils must be aware of exercising powers as a fiduciary.
Band moneys are for the collective, they come because aboriginal rights and title are held communally; thus, the proper rights holders are the band members. When a band council negotiates they do so for the benefit of the band; it is the band that must consent as to how its collective rights are to be affected. This is reflected in the Manual for the Administration of Band Moneys where informed community consent is required in respect of settlement type funds. Settlement type agreements must be ratified by referendum based on the informed community consent of the membership. Also, the Supreme Court of Canada recognized the communal aspect of aboriginal title and rights in Delgamuukw and Tsilqot’in and others.
In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010:
115 A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests.
In Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256
[86] First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.
Getting back to Louie v. Louie, the BCCA summarized their decision by stating:
The removal of $25,000 from Band funds and the payment of $5,000 to each of the defendants was a clear and significant personal benefit to them, and them only. As a one-time payment, it did not benefit future members of Council or of the Band. Rather, it was a detriment to the Band. The conclusion seems to me inescapable that this was a breach of fiduciary duty, even in the context of a relatively informal and custom-based governance structure. In my view, such a structure should not deprive members of the Band of the protection of the fiduciary principle. They were entitled to hold the defendants to the high standard to which other fiduciaries are held in this country.
While Louie v. Louie stands to uphold the fiduciary duties, it also points to the need for having obtained free, prior, and informed consent of the true rights holders by a majority of the band, which in that case, hadn’t been proven.
On a side note in regards to fiduciary, in interpreting indigenous law, creation stories and oral histories can inform about indigenous customs or traditions. In 1918, the anthropologist Franz Boaz published a number of such stories in Kutenai Tales, one of which is the Ktunaxa story called “The Youth Who Killed The Chiefs”. In that story, there were chiefs that did not share food and the people were hungry. A young warrior killed those chiefs that did not share so that the community would also benefit. The moral of the story is that to be a chief, one must put the people first, and that is what the fiduciary principle is all about.
Troy Hunter is a Ktunaxa lawyer who practices aboriginal law with Sea to Sky Law Corporation in British Columbia. Nothing herein is intended to create a lawyer-client relationship and shall not be construed as legal advice.
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Ta'tush (Theresa Peters)
Lil’watémclhkan Ts’ila ts7a: Inshuckch treaty losing momentum
The Inshuckch Treaty seems to be losing its momentum since a group of four Lower St’at’imc First Nations first decided to pull away politically from the St’at’imc tribal council to join the modern day treaty process in the early 1990s.
Inshuckch treaty membership has been slowly dissolving for over 20 years. More and more St’at’imc communities seem to have gained more insight into how the modern day treaty doesn’t work for First Nations. Many believe that the modern day treaty system is extremely biased in favour of the government, at the expense of Indigenous people.
N’Quatqua First Nation pulled out of the Inshuckch treaty in 1999. Douglas First Nation pulled out of the process in 2010.
On Saturday, Oct. 22, the Samahquam First Nation voted 25 to 24 to withdraw their support of the treaty loan. I’m still trying to find out exactly what this means, but basically, it appears that Samahquam is in favour of pulling out of the treaty process as well.
This would leave Skatin as the only First Nations band left in the treaty, if they don’t decide to pull out themselves.
As a non-Inshuckch member, I’ve been following the treaty process of our neighbouring friends and relatives for years.
Hereditary Chief Clarke Smith and others have been consistently fighting the treaty right from the beginning. I’ve read documents that hereditary Chief Smith has posted on social media. It’s interesting to see how the treaty process has been set up systematically by pro-treaty in favour of a yes vote.
For example, I understand that in order to vote for the treaty, people have to be a member of Inshuckch. What I am trying to understand is whether or not people who register as Inshuckch have to give up their membership in their band? If so, how does this affect their rights as Samahquam or Skatin band members?
If someone is from Samahquam, and the Samahquam band is in treaty negotiations under the Inshuckch umbrella; and they aren’t personally registered to vote as an Inshuckch treaty member, can they still vote?
If people become members of Inshuckch, can they still legally run in their band’s chief and council elections, and become chief and council in their band? For example, Samahquam had a controversial election recently, where (according to social media posts) it seems that a pro-treaty chief and council were elected. If they are registered as Inshuckch, was it legal for them to retain their membership in their band?
I’m trying to understand whether pro-treaty registered Inshuckch members have the best of both worlds; and membership in both worlds — while non-registered people only have membership in their band, and can make no decisions about the treaty if they do not register to be an Inshuckch member.
The whole process seems very complicated. Treaty decisions cannot be legally made if band members do not fully understand their rights, or have all of the facts. This would be a difficult thing to accomplish if bands who are in the treaty process are in turmoil and their band membership does not receive all of the information that they need or can understand, in order to make an informed decision.
It seems that modern day treaties get railroaded through British Columbia by organized, pro-treaty constituents, while people who don’t believe in the modern day treaty don’t usually attend treaty meetings.
After doing a lot of research into it, I personally do not have faith in the modern day treaty process. It is set up for natives to lose our “sovereign” right to our “unceded” lands as described under the Royal Proclamation of 1763.
Our Lillooet Declaration of 1911 declares our sovereign rights, and the Tsihlqot’in decision of June 26, 2014 upholds our rights. There is no need to negotiate these rights away in unfair negotiations.
It looks as though more and more First Nations negotiations are at a standstill, and/or are pulling out of the treaty process.
My thoughts and support are with the people who are doing their best to fight for their inherent sovereign rights.
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