[IPSM] Native News

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Court takes band to task over fishing
Judge says Cheam have no special rights
        
      Larry Pynn 
      Vancouver Sun 

Monday, January 17, 2005

FRASER VALLEY - A member of the Cheam Indian Band convicted of fishing on the Fraser River without a licence in July 2000 is scheduled to be sentenced today and arrest warrants have been issued for four others who failed to appear for sentencing last week.

Provincial court Judge Jim Jardine found Frederick William Quipp, son of former band chief June Quipp, guilty on Dec. 8. Others convicted in the same case were Kelly Ann Douglas (fishing without a licence), Todd Kenneth Wood and Kirby Edwin Hourie, a Metis without official aboriginal status (fishing without a licence and unlawful possession of salmon), and Howard Glynn Victor (two counts of fishing without a licence).

The band, located across the Fraser River from Agassiz, and its members may disagree with the law, but they cannot do so with impunity from prosecution, Jardine ruled in one of two separate cases in provincial court that date back to September 1999.

Sentencing is pending against eight individuals in all.

Testimony by Quipp indicated that he and his partner had conservatively caught 10,000 sockeye and 1,000 chinook in one season, using 10 per cent as food fish and selling the other 90 per cent.

"If he is correct and there are 60 such fishers, the Cheam take a large number of fish," Jardine said, noting testimony that "no one actually counts" the number of fish taken by the Cheam. "That would constitute an estimate in the hundreds of thousands."

While the judge lacked direct evidence to show the Cheam were responsible for 70,000 early Stuart sockeye going missing in 2000, he concluded the Cheam would have caught a "substantial number" in their driftnets during times when fishing was legally closed.

Over the years, the 400-member Cheam band has incurred the wrath of non-native fishermen, as well as aboriginal communities located elsewhere on the river, who felt they suffered because of the band's hard-line position on its right to fish for salmon as it sees fit.

On that issue, Jardine noted there are 93 bands comprising 30,000 natives who also have a right to fish for salmon and that the Cheam have no special rights above other bands.

He added that while aboriginal fishing rights take priority after conservation, conservation means more than "merely protecting stocks from extinction."

In 2000, the government set up a fishing plan that took into account issues such as rebuilding stocks as well as high water on the Fraser system that posed an increased risk of salmon mortality en route to their spawning grounds.

As for sport and commercial fishing groups, they are estimated to have caught only about 200 early Stuart sockeye that year.

Jardine noted that the Cheam had gone it alone rather than participate with other Sto:lo bands on fishing plans with the federal government.

"Their failure to respond to repeated entreaties to meet, or consult, or respond, leads to the inescapable conclusion they simply want to frustrate the consultation process. In my view, while not perfect, the DFO has made reasonable and good-faith efforts to consult."

In the September 1999 case, Judge Howard Thomas agreed that rebuilding stocks is a valid conservation measure that could legally impact the aboriginal right to fish, noting that natives will ultimately benefit from bigger fish runs.

He added that conservation measures in 1999 were "borne by the commercial and recreational fisheries, which were virtually closed and saw substantial reductions in their catches. The catch of the aboriginal fishery was about five times that of the commercial fisheries."

On Nov. 19, Thomas found Leonard MacKay guilty of illegal fishing, Mark Giroux and Quipp guilty of obstructing a federal fisheries officer, and Giroux and John Darren Rampanen guilty of assaulting a fisheries officer.

The judge found that Giroux swung an oar at officer Scott Coultish, striking the boat in which Coultish was standing and requiring him to move back, while Rampanen struck Coultish three times to prevent him from seizing a net.

The judge rejected the defence argument that the federal government had no right to close fishing on Sept. 3, 1999, because it had mistakenly identified 400,00 Chilco salmon as Adams River salmon.

Sentencing in the 1999 case is expected in April.

The Cheam's current chief, Sidney Douglas, could not be reached for comment on how the convictions would affect future fishing by the band.

Comox band seeks redress from provincial, federal governments
Lawsuits look for damages, compensation and return of property taken 'unlawfully'
        
      Gerry Bellett 
      Vancouver Sun 

Monday, January 17, 2005

The Comox Indian Band is asking the B.C. Supreme Court to redress historical grievances with the provincial and federal governments for taking portions of band land for military or commercial purposes as far back as 1896.

Three lawsuits filed this week by Chief Ernest Hardy and two band councillors seek damages, compensation and the return of property they claim was taken from the band unlawfully and without proper compensation.

The oldest of the grievances involves Goose Spit Indian Reserve No. 3 -- a small reserve overlooking the Georgia Strait -- that was commandeered for the Royal Navy in 1896.

This property -- shown on some maps as Graveyard Indian Reserve -- contains the remains of generations of aboriginals, and the band is seeking compensation for the destruction of burial sites, alleged to have occurred while the military occupied the area from 1896 to 1980.

The other lawsuits involve small parcels of property on the band's Pentledge Reserve.

The Goose Spit lawsuit states that the federal government authorized the occupation of the area by the British Admiralty "for military purposes without lawful authority."

The Admiralty's use and occupation of the reserve constituted trespass, the band claims.

The land went from the British to the Royal Canadian Navy and was used by the department of national defence until 1980.

This occupation was based on an "invalid surrender by band," which was unlawful, the suit says.

Compensation paid to the band in 1944 was "inadequate" and "did not address the lack of compensation paid to the band from 1896 to 1940," it claims.

In 1914, the provincial government "took 2.8 acres of land on Pentledge Indian Reserve to construct a road without payment of compensation," the second suit said.

It alleges that the province's continued use of the road is trespass.

It says that in 1919, the province authorized the B.C. Telephone Company to use and occupy land on the reserve without "lawful authority and without payment of compensation."

In 1969, the band claims, the province took an additional 1.4 acres of the reserve for relocation of the road and for a new bridge, again without compensation.

The suit alleges that the province and "others" took gravel and timber from the reserve without compensation.

The third suit concerns the federal government's transfer of almost three acres of the Pentledge Reserve as a right-of-way for the Fraser River Sawmills Company without the band's receiving adequate compensation.

The federal government is also cited for authorizing the purchase of two acres of reserve by the Comox Logging and Railway Company in 1910 -- again for right-of-way -- and for not ensuring the land would return to the band when the right-of-way ceased being used in the 1960s.

The Globe and Mail
Top court to decide logging rights
N.B. and N.S. natives set to argue they hold title to vast areas of provinces
By KIRK MAKIN
JUSTICE REPORTER
Monday, January 17, 2005
         
On a crisp day in the spring of 1998, Joshua Bernard -- a Mi'kmaq -- carefully secured 23 spruce logs to his tractor-trailer, drove off down a rural New Brunswick logging road and into legal history.

Mr. Bernard was arrested and charged with unlawfully possessing timber belonging to the Crown. His test case of his people's right to log a vast portion of the province looms as one of the most momentous aboriginal rights cases to come along in a generation.

An appeal hearing beginning today in the Supreme Court of Canada will plunge the judges into the intricacies of Mi'kmaq culture and European-aboriginal relations 250 years ago in a land that remained a virgin wilderness.

As if the intense social and political ramifications of the Bernard case are not enough for the court to wrestle with, it is also hearing a blockbuster, companion case involving logging rights of the Nova Scotia Mi'kmaq.

In that case, 35 band members, including one named Stephen Marshall, have asserted their right to log where they wish, based on aboriginal title and on their ancient traditions of "gathering" in the forests.

"The Mi'kmaq harvesters claim Aboriginal title to an area that includes all of present-day Nova Scotia," their legal brief states flatly. "The Mi'kmaq harvesters are asserting a claim to a large, well-defined, bounded area on the basis of millennia of use."

The New Brunswick case is equally dramatic, involving claims over about one-third of the province -- an area the province pointedly notes was home to just 100-200 Mi'kmaq in 1760.

The cases carry strong echoes of the 1999 Donald Marshall case that led to eruptions of violence at Burnt Church, N.B. This time, the stakes are considerably higher than just the right to catch eels and lobsters.

They raise the incendiary issue of aboriginal claims on private property rights in both provinces -- both in the context of ancient treaties and as a constitutional right.

The litigants enjoyed considerable success as the cases worked their way up from the lower courts, raising their hopes and putting sufficient chill into bureaucratic hearts that almost every province has sought intervenor status.

One key for the Mi'kmaq litigants will be to persuade the court -- which will sit without Mr. Justice Ian Binnie, who had dealings with the issues while he was a practising lawyer -- that logging is a logical evolution of their historic activities.

Mr. Bernard grounds his claim in agreements that allegedly provided for his ancestors, who had lived in the Miramichi River territory for 2,500 years, to gather a wide variety of resources.

"Wood fibre was absolutely critical to the Mi'kmaq to meet their needs for shelter, warmth, cooking, tools and transportation," his brief argues.

Legal briefs from the Nova Scotia and New Brunswick governments argue that any aboriginal title that may have once existed was extinguished -- explicitly or by inference -- through pre-Confederation legislation.

They also reject the notion that modern-day logging follows logically from the practices of a few hundred nomadic natives who crafted a very few items from wood.

"The respondent's interpretation of the treaties amounts to an attempt to wholly transform the subject matter of the treaties by attempting to extend a traditional gathering of forest products -- such as spruce roots, spruce gum, spruce tea, birch bark and saplings for wigwam frames -- into a right to deal commercially in the logging of trees," says a Nova Scotia brief.

Seeds for the two appeals were sown several years ago in two landmark cases -- Delgamuukw and the Donald Marshall case.

The Delgamuukw case set many of the ground rules for aboriginal claims to land and resources, while the Marshall case revived trade and resource rights under a long-forgotten treaty between the British and the Mi'kmaq.

In both cases the court will hear this week, provincial court judges originally ruled against Mi'kmaq challengers. The litigants lost again on appeal to their provincial superior courts.

However, the New Brunswick Court of Appeal ruled 2-1 that Mr. Bernard did, indeed, enjoy a surviving treaty right to log for trade, and that he could cut and sell Crown timber for commercial purposes.

In the current Nova Scotia case, referred to as Stephen Marshall, the province's court of appeal ruled that the lower courts had misapplied the legal test for finding a valid treaty.

15 shots fired in 'life-or-death' confrontation  
      Last Updated Jan 17 2005 01:23 PM PST
      CBC News
         
      VANCOUVER - Vancouver police have confirmed two rookie constables who shot and killed a man near Chinatown on Boxing Day fired a total of 15 shots. 

      Police spokesperson Ann Drennan says 29-year-old Gerald Chenery had lunged at the officers with a knife - and was shot to death when he began slashing at them. 

      And Drennan says investigators don't believe it was a case of excessive force by the pair. 

      "The man attempted to stab the officers, in particular one of the officers who was eventually down on the ground with this man on top of her. 

      "Shots were fired by both officers," says Drennan. "And from everything that we've seen so far, and all the information we have so far, it looks as though they were in a life-or-death situation and they did what they felt they had to do." 

        a.. FROM DEC. 31, 2004 Sister of police shooting victim seeks answers 

      The shooting is the subject of an internal investigation by police after a complaint by the dead man's sister. 

      Drennan says the B.C. Police Complaints Commissioner is also looking into the incident. The two rookie officers remain on paid leave.  



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