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  • Pik Grandmothers Letter & Court Doc To C&C Mar 31 16

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    Russell Diabo
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    Pikwakanagan Grandmothers Letter & Federal Court Application to Pikwakanagan Chief & Council

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    Pik Grandmothers Letter & Court Doc to C&C Mar 31 16

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    Pikwakanagan Grandmothers Letter & Federal Court Application to Pikwakanagan Chief & Council

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    © All Rights Reserved
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    461 Ansichten23 Seiten

    Pik Grandmothers Letter & Court Doc To C&C Mar 31 16

    Hochgeladen von

    Russell Diabo
    Pikwakanagan Grandmothers Letter & Federal Court Application to Pikwakanagan Chief & Council

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    © All Rights Reserved
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    KOKOMISAG TiJI PIKWAKANAGAN Grandmothers of Pikwakanagan March 31, 2016 Chief Kirby Whiteduck Members of Council 1657A Mishomis Inamo Pikwakanagan, ON KOJ 1X0 Dear Honourable Chief & Council Members: Over the past several years, Pikwakanagan members have repeatedly expressed concems regarding the direction that land claim negotiations were heading. Constructive input was provided by the membership to ensure acceptable terms to a settlement of our olaim. In December 2015, a hard copy of an Executive Summary of the Agreement-In-Principle (AIP) along with a CD containing the full version was released. Technological challenges prevented many First Nation members from accessing the full contents. In addition the community was notified of the vote to ratify the AIP would be held three months later on March 5, 2016, As the members began to access and review the AIP document, it became apparent. that very little, if any of the community concerns or input was ever incorporated into the document, Also many members found the legal contents of the AIP were confusing and unclear as to the intent. Again at a community meeting held on January 28, 2016, members tried to have their concerns with the proposed AIP heard and addressed before the vote, but to no avail. Community concerns were again met only with repeated resistance. Community members wanted to know if our leadership supported the AIP and if our Chief and Council would recommend it for approval or not. Our leadership refused to express direct support of the AIP ~ knowing our members still had serious concems with the document and each member would be left to decide to vote for or against the AIP based upon their own interpretation. ‘An open community meeting was held to discuss the AIP concerns at the Makwa Center on February 17, 2016. All members were invited including Chief & Council who did not attend. The meeting was well attended by the community members but there were some First Nation employees who would not attend for fear of reprisals at work. ‘The members at this meeting unanimously rejected your proposed AIP and the consensus was Chief & Council immediately suspend Pikwakanagan’s involvement in the ratification process and to begin discussions with the community in order to clarify our concerns, We were accused of fear-mongering in a contradictory Q&A memo (Feb 17/16) from your office that was left in the lobby of the Makwa Community Centre on the day of our meeting. The following is an example of a section in the Agreement-in-Principle causing great concern and fear among Pikwakanagan community members: Section 12.4 Indian Act Tax Exemption and Transitional Measures Section 12.4.1 Subject to 12.4.2 and Chapter 11, section 87 of the Indian Act will have ‘No application to any Beneficiary, Algonquin Institution or Settlement Lands as of the Effective Date. Section 12.4.2 Prior to the conclusion of the Final Agreement, the Parties will negotiate transitional measures in respect of the application of section 87 of the Indian Act. Your Q&A memo (Feb 17/16) answers the question if we will lose our tax exemption status with a definitive NO subject to self-government “benefits” but the AIP you've negotiated is quite clear our tax exemption under Section 87 will no longer have application to any "beneficiary" and the Parties will negotiate transitional measures. So if we will not lose our tax exemption as per your interpretation, why would there be a need for “transitional” measures in the AIP under Section 12? Brian A. Crane, the Chief Ontario Negotiator also outlines clearly in his memo to Jim Pine on July 15, 2013 (copy attached) regarding the intent of the federal government on page 6. "12.4.1 reminds the Algonquins that the s.87 Indian Act tax exemption will be discussed in the context of those self-government negotiations. The federal government has made its position clear that according to Canada’s policy after a self-government agreement has been negotiated for Pikwakanagan the Pikwakanagan Reserve will cease to exist and the s.87 tax exemption will no longer apply.” Clearly we have two opposing views between yourselves and the Chief Ontario Negotiator and Ontario's view is consistent with the AIP according to our interpretation. According to Brian Crane's letter "the Pikwakanagan Reserve will cease to exist’, so our concern is if the reserve ceases to exist as a reserve and section 87 will no longer apply ~what will Pikwakanagan become? Will it be become a taxable municipality? On February 24, 2016 the Grandmothers sent you a detailed memo outlining our deepest concems and fears for the current and future generations. We firmly believe and know this AIP is a danger to our community and our inherent rights. We, as Grandmothers, will not have a $300 million dollar carrot dangling at us and having Mr. Potts try to convince us this is a great deal for us. It's a great deal for Mr. Potts and his law firm, Our land, values and people are priceless. On February 28, 2016 the Pikwakanagan Grandmothers who are supported by many community members protested and met with you outside Council Chambers to demand a stop to the ratification process. At the time you were presented with a petition signed by 211 members of Pikwakanagan rejecting the proposed AIP and demanding you immediately terminate Pikwakangan's involvement in the ratification process until all the communities concerns were addressed and rectified. You DID NOT follow this direction given to you by the community, You also totally disrespected the Grandmother's wishes and DID NOT follow them either. The Grandmother's also followed up with a letter dated March 2, 2016 after our protest notifying you of our community meeting to be held on March 4, 2016. Your attendance was expected with the exception of Clifford Meness so we could address our concerns again. There were only two Council Members who attended and we appreciate their efforts. Our Chief had more important things to do than attend some silly Grandmother's meeting”. We, as Grandmothers, do not view our meetings to protect our inherent rights as “silly”. The Grandmother's community meeting was our final attempt to stop the ratification vote. Despite constant constructive input over the past several years and the overwhelming rejection of the AIP, and several attempts made to discuss changing the terms of the AIP before voting on it, you allowed the ratification vote to proceed. This has closed the door on any opportunity to revise the AIP. We are quite aware of the non-binding nature of the AIP, however, we realize by its very nature and commitment of all parties that it will be the “framework” used to negotiate a Treaty and thereby extinguish our inherent rights bestowed upon us by our Creator and under Section 35 of the Constitution Act. ‘The ratification process proceeded on March 5, 2016 in Pikwakanagan because you refused to listen to the people of this community and forced community members who rejected this entire process to vote so they could protect their inherent tights. Under the Indian Act, the Algonquins of Pikwakanagan are the only recognized First Nation in these negotiations. We ARE NOT recognized as the Algonquins of Ontario under this Act nor should we have been referred to as the Algonquins of Ontario on the Pikwakanagan ballots. Your ballot questions were two-fold as follows: Do You Agree to approve the proposed Agreement-in-Principle between the Algonquins of Ontario and the Governments of Ontario and Canada; and Authorize and direct the Algonquin Negotiation Team to act on behalf of the Algonquins of Ontario to negotiate the terms of a Final Agreement based on that Agreement-in-Principle? As you are fully aware from the voting results released on March 17, 2016, 57% of Pikwakanagan members voted NO in the combined results. In the AofPFN referendum alone ~ an astounding vote of 74% in favour of rejecting the AIP compared to 26% in favour of the AIP is a clear indicator that you have not paid attention to our concerns. Based upon the vote results the AIP has been struck down in its entirety by Pikwakanagan members, This means ‘‘the Chief and Council of Pikwakanagan have no mandate to negotiate under the terms of the proposed AIP, regardless of what the outcome was in the Algonquins Of Ontario(AQO) process”. Itis clear that ALL negotiations and communication with Canada and Ontario and discussions at the AOO table must stop immediately. Further C&C approval for funding to the AOO must be stopped immediately and funding sources must be frozen. Also given Mr. Potts and his lack of respect for us and our Elders, he is no longer welcome to represent us or be allowed back in our community. These are not only the wishes of the Grandmothers but now the voting community. Your respect and immediate attention to this matter is greatly appreciated, Sincerely and on behalf of the Grandmothers of Pikwakanagan, Le Whalen Grandmother of Pikwakanagan Baftrara Sérazin Grandmether of Pikwakanagan Jb Dale Benoit-Zohr Pauline Wilcox f' “Grandmother of Pikwakanagan Grandmother of Pikwakanagan Attachment; Brain Crane Letter July 15, 2013 Ministry of Aboriginal Affairs _‘Ministdre dos Affaires autochtones Information Cente Centre cinformation ‘Algonquin Land Glam Revendication toriorialo 31 Riverside Drive 31 uo Riverside Pembroke, ON. KOA 9RG Pemboke, ON. KBA 8RG Tol: (613) 732-0081 ‘Vor (619) 732-0081 “Toll Free: 1-855-600-7070 Naméro vert: 1-855-690-7070 websile; wy, Onte.caiandcaims duly 15, 2013 dim Pine CAO Hastings Secretary-Teasurer EOWC ineJ@hastingscounty.com Re: EOWC Comments on the Preliminary Draft Agreement in Principle {n this letter | am providing preliminary comments on your letter of June 28, 2013 on behalf of the Eastern Ontario Wardens Caucus. A recurring theme in your letter relates to the application of provincial and municipal laws to the Algonquins and to Algonquin Settlement Lands. It is fundamental to Ontario's position, which has been accopted by Canada and the Algonquins, that lands transferred to the Algonquins will be held in fee simple with mineral rights. and that such lands will be subject to municipal taxation and municipal planning regimes and procedures. Algonquin Settlement Lands therefore will not have special land rights. ‘The legal language of the Preliminary Draft Agreement in Principle may tend to obscure this rather straight forward idea and we are trying to improve and clarify the language as best we can. ‘There is one exception to this. In the case of three large land parcels (described in Chapter 12 as Specified Algonquin Lands) the Algonquins will have the bonefit of a property tax exemption provided the lands remain unimproved and provided also that in advance of the final treaty there is a financial arrangement in place with the appropriate municipal authority to cover the cost of anticipated services. These lands were identified by the Algonquins as lands which would not likely be developed in the future but would be held in their natural state, | note for completeness that the Algonquins may also have other tax benefits unrelated to land, including the possibility of using a Settlement Trust to hold land claim monies pursuant to federal tax policy. | now address the specific questions in your letter. LAND USE PLANNING 4. Applicability of Provincial Statutes ‘As mentioned above, provincial laws and policies will generally apply to Algonquin Settlement Lands. This includes the Building and Fire Codes which are regulations under Ontario law. 2. Municipal Building Permit Processes ‘All municipal building permit and planning processes will also apply fo Algonquin Settlement Lands. This follows logically from the application of municipal planning laws and regulations. 3. Lands Sold to Non-First Nation Individuals or Corporations The Algonquins will be free to sell Settlement Lands or to grant interests in lands, such as leases, to Algonquin or to non-Algonquin individuals or corporations. The property tax exemption applicable to the three tax exempt parcels will terminate should lands be disposed of to an entity other than an Algonquin institution, This will be specified in the taxation chapter. In other words, the tax exemption cannot be transferred from one tand owner to another but is only available to an Algonquin Institution which holds the lands collectively for the Algonquins, To put this another way, the tax exemption is not an interest in land which runs with the tand on transfer. 4, Hunt Camps Recreational or hunt camps which are located on Algonquin Settlement Lands are now recognized in Land Use Permits issued by MNR. These Land Use Permits will terminate once the lands have been transferred to the Algonquins, The Algonquins are required under the Agreement in Principle to enter into negotiations with hunt camp operators so that they can continue to enjoy their camps and hunting areas for a reasonable time. Ontario will participate in these negotiations which will take place prior to the final treaty. We have not worked out specific clauses to govern the application of municipal laws to hunt camps and to constructions on Algonquin lands. However, there is nothing in the Agreement in Principle which would prevent the application of municipal laws to Algonquin Settlement Lands and constructions thereon (except for the tax exempt parcels referred to above). Thus, as a matter of principle, municipal laws and policies applicable to hunt camps would apply. 5. Emergency Services We anticipate that emergency services would continue to be provided by local governments as they are now. Such emergency services would be funded as at present by local governments or the province. In the respect of the three parcels of tax ‘exempt lands, the cost of emergency services would be dealt with in the financial arrangement discussions prior to treaty. Municipalities have raised with us the issue of cost recovery for fire protection services presently provided by MNR. This issue may need further study and if necessary will be addressed in the treaty, 6. Zoning or Pre-Zoning of Settlement Lands We are in the process of reviewing the land use planning provisions (including 5.7.2) to provide greater clarity, It is Ontario's intention when transferring Crown lands to the ‘Aigonquins to provide that the lands transferred will be given a designation in order to fit them into existing official plans and zoning by-laws. In the vast majority of cases, the designation would be compatible, if not identical, with neighbouring private lands, There will be a process established after the AIP to establish such designations and relevant local governments will be fully consulted in that process. The lands will also be examined in an environmental assessment under the Algonquin Declaration Order Which might influence the designation, PROPERTY TAXATION 1. Interpretation of 12.2.1 | believe that from the wording of Chapter 12 and the statements about the application of laws in Chapter 2, itis clear that the property tax exemption only applies to the three parcels of Specified Algonquin Lands. Our lawyers have reviewed the text and are satisfied that the language is clear. 2. Property Tax Arrears As noted, Algonquin Settlement Lands will not be Indian reserves and will be subject to the provisions of Ontario tax statutes. We anticipate that Settlement Lands will be held by an Algonquin institution or institutions. Thus, it is very likely that Algonquin Settlement Lands will be held in the name of an Algonquin land holding trust or corporation which will be responsible for the administration of those lands including the Payment of property taxes. Should taxes fall into arrears the local government will be able to look to the Algonquin land holding institution for payment. These matters are not addressed in the AIP since the Algonquins have not yet settled on the form of their institutions. If necessary, the treaty can provide additional language to address the concerns of local governments We certainly will be exploring this issue further with municipal governments after the AIP. 3, Assessment ‘The Assessment Act and related statutes. will apply to Algonquin Settlement Lands. There is nothing in the AIP which would suggest that the assessment methodology currently followed by MPAC would be different in relation to Algonquin Settlement Lands, 4. Property Tax and Forestry We anticipate that Algonquin Settlement Lands which are subject to existing Forest Management Plans will not actually be transferred to the Algonquins unti the forestry work under those plans on Settlement Lands has been completed. We have established a Working Group with participation from the Algonquins and industry to review and advise upon the transition arrangements, After transfer, the Algonquins might be eligible for the Managed Forest Tax Incentive Program but under the general principles referred to above they would have to satisfy the requirements of that program. There is no proposal on the table with respect to the MFTIP. The Algonquins have indicated they want to discuss the application of taxation, Including property tax, to forestry operations on Algonquin Settlement Lands. This discussion will take place after the Agreement in Principle, 5. Transfer of Settlement Lands ‘As discussed above, if Settlement Lands are transferred by the Algonquins, the new ‘owners would be subject to the general law, including municipal planning and taxation laws. Under Chapter 12, the property tax exemption which is applicable to the three parcels of Specified Algonquin Lands will only apply if the fand is held by an Algonquin institution. 6. Indian Act | would like to mention one further point concerning the application of the Indian Act. Your legal counsel Mr. Fairbrother has pointed out that there appears to be a contradiction between 2.2.3 and 12.4.1, Our lawyers will look into clarifying this potentially conflicting fanguage. {tis important to note that pursuant to 2.2.3 Settlement Lands will not be reserves under the Indian Act, but instead will be lands in fee simplo, Therefore, s.87 of the Indian Act will not apply to Settlement Lands. The AIP will provide that self-government will be discussed before the Final Agreement but this will be limited to the community of Pikwakanagan. 12.4.1 reminds the Algonquins that the s. 87 indian Act tax exemption will be discussed in the context of those self-government negotiations. The federal government has made its position clear that according to Canada’s policy after a self-government agreement has been negotiated for Pikwakanagan the Pikwakanagan Reserve will cease to exist and the s. 87 tax exemption will no longer apply. AS a final note, | would stress that the AIP is a non-binding agreement which is intended to guide future treaty negotiations. In that sense nothing in the AIP is final, Further, as you know, the AIP must still be approved by the Algonquins (in a ratification vote) and by Canada and Ontario before it is executed. "have provided your comments to legal counsel assigned to the claim for their further review, particularly the detailed comments of Mr. Faitbrother. Yours sincerely, RAK Loa, Brian A. Crane Chief Ontario Negotiator c.c, Ron Doering, Chief Federal Negotiator Norm Lemke anenaia File No. T - Federal Court MATRIARCH JACQUELINE SARAZIN, BARBARA SARAZIN, KAREN WHELAN, LINDA PAQUETTE, JANE CHARTRAND, PAULINE WILCOX, ANGELA HEIN, AND THERESA KUTTSCHKE on their ov behalf and on behalf of the KOKOMISAG Tid! PICWAKANAGAN (GRANDMOTHERS OF PIKWAKANAGAN - list attached at Appendix “A” APPLICANTS: And CHIEF KIRBY WHITEDUCK, JIM MENESS, SHERRYLYN SARAZIN, CLIFF MENESS, H. JERROW LAVALLEY, DAN KOHOKO, RONALD L. BERNARD, THE CHIEF AND BAND COUNCIL OF THE, ALGONQUINS OF PIKWAKANAGAN RESPONDENTS: lication Under Section 18.1 of the Federal Court Act. NOTICE OF APPLICATION Representative Proceeding APROCEEDING HAS BEEN COMMENCED by the applicant, The relef claimed by the applicant ‘appears on the following page. ‘THIS APPLICATION willbe heard by the Court at a time and place to be fixed by the Judicial ‘Administrator. Unless the Court orders otherwise, the place of hearing willbe as requested by the applicant. The applicant requests that this application be heard at (place where Federal Court of Appeal (or Federal Court ordinarily sits) IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application oF to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve iton the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application Copies of the Federal Courts Rules information concerning the local offices ofthe Court and other necessary information may be obtelned on request to the Administrator of this Court al Ottawa (telephone 613-992-4238) or at any local office. iF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR, ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Issued by: Registry Officer) REGISTRY OFFICER ‘AGENT DU GREFFE Address of local office:_90 Sparks Street / 40, rue Sparks Sita.va, Ontario / Ottawa (Ontario) KIA OHO To: Chief Kiroy Whiteduck clo 1657A Mishomis Inamo Rd Pikwakanagan, ON KOJ 1X0 Jim Meness clo 1657A Mishomis inamo Rd Pikwakanagan, ON KOJ 1x0 Sherrylyn Sarazin clo 1657A Mishomis Inamo Rd Pikwakanagan, ON Kod 4X0 Cliff Meness clo 16574 Mishomis Inamo Rd Pikwakanagan, ON Kod 1X0 H, Jerrow Lavalley ‘clo 1657A Mishomis Inamo Rd Pikwakanagan, ON Kod 1X0 Dan Kohoko clo 1657A Mishomis Inamo Re Pikwakanagan, ON KOJ 1X0 Ronald L, Bernard clo 1657A Mishomis inamo Rd Pikwakanagan, ON Kod 1X0 ‘Chief and Band Counell of the Algonquins of Pikwakanagan clo 1657 Mishomis Inamo Rd Pikwakanagan, ON Kou 4X0 He “tif Aint, Whitedack APPLICATION ‘This is an application for Judicial review of the omission of the Chief and band Council ofthe Aigonquins. of Pikwakanagan fo withdraw from the negotiations with Canada and Ontario, under the umbrella of an entity known as the Algonquine of Ontario, pursuant to a vote held on March 5%, 2016 by the Algonquins of Pikwakanagan which rejected the Agreement-in-Principle signed by the Algonquin of Ontario, Canada ‘and Ontario and communicated by Chief and Council on March 17%, 2016 to the Applicants, THE APPLICANTS MAKE APPLICATION FOR: 1. An injunction to have Chief and Band Council cease and desist in the negotiations with Ontario ‘and Canada, under the umbrella of an entity known as the Algonquins of Ontario, and suspend all debt obligations for negotiations, until the final disposition of the within application; 2, An order in the nature of prohibition, which suspends the present S 35(1) Constitution Act, 1982 indigenous rights negotiations conducted by Chief and Band Council, under the umbrella of an entity known as the Algonquin of Ontario, with Canada and Ontario, until Chief and Band ‘Council obtain the proper negotiating mandate on S 35(1) indigenous rights, pursuant fo Aigonguin law, tradition and custo 3. Anorder in the nature of mandamus which prohibits the Chief and Band Council from negotiating wilh Canada and Ontario, under the umbrella of the Algonquins of Ontario, until the Chief and Band Council have obtained the proper mandate to negotiate from the membership of the ‘Aigonquins of Pikwakanagan, pursuant to Algonquin law, tradition and custom; 4, An order that Chief and Band Council of the Algonquins of Pikwakanagan obtain the proper mandate from the membership of the Algonquins of Pikwakanagan to negotiate S 35(1) Constitution Act, 1982 indigenous rights to lands end resources before conducting any further negotiations, with Ontario and Canada, all based on Algonquin law, traditions and customs. 5. An order for costs on a solicitor-cient basis; and 6. Any further order this Honourable Court shall deem just and appropriate. BACKGROUND 41. The Algonquins of Pikwakanagan comprise approximately 1400 eligible voters registered on the ‘band List for the reserve at Golden Lake, Ontario. Approximately 350 Algonquin of voting age reside at the reserve, with the balance of Algonquins tving off the reserve. Pursuant to the ‘Algonquine of Pikwakanagan Custom Election Code, only Algonquins ordinary resident on the reserve can stand as candidates forthe position of chief or the positon of Councilor. Chief and band Council are created by the Indian Act, which Is administered by the Minister, who shall be superintendent general of indian Affairs. (Section 3 Indian Act) 2. In approximately 2002 discussions began with Ontario and Canada regarding Section 35(1) Constitution Act 1982 indigenous rights, with certain Algonquins of Ontario and soon became the ‘Algonquins of Ontario, comprised of the Algonquins of Pikwakanagan and 9 other communities. ‘These 9 other communities are: Matiawa, Bancroft, Ottawa, Whitney, Sharbot Lake, Greater Golden Lake, Antoine, Ardoch and Bonnechere, Eventually, each entity put forward an Algonquin Nation Representative (ANR's) with the Algonguins of Pikwakenagan having 7 ANR's consisting of Chief and Band Council, and each ofthe other communities having one each, fora total of 16 Algonquin Nation Representatives. 3. On May 29% 2015 the Algonguins of Ontario, through their Principal Negotlator and Senior Legal Counsel, Robert Potts, Ontario and Canada signed a Proposed Agreement-in-Principle, which is declared to have no legal status and shall not create legal obligations. The parties thereto state that the Agreement in-principle shall form the basis of negotiations towards a Final Agreement that will clarify the rights of the Algonquins that willbe recognized and affirmed by Section 35 of the Constitution Act, 1982. Furthermore, the parties thereto state that the Algonquins, Canada and Ontario have agreed fo negotiate in order to clay the rights. Algonquins are nowhere

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