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Is it a tax or a regulatory charge?

*** This is just a snippet

Judgements of the Supreme Court of Canada

Citation:Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134
Date:September 10, 1999
Docket: 26450

Indexed as: Westbank First Nation v. British Columbia Hydro and Power Authority

File No.: 26450.
Hearing and judgment: June 21, 1999
Reasons delivered: September 10, 1999

Section 125 of the Constitution Act, 1867 is one of the tools found in the Constitution that ensures the proper functioning of Canada’s federal system. It advances the goals of federalism and democracy by according a degree of operational space to each level of government, free from interference by the other. It prohibits one level of government from taxing the property of the other. However, it does not prohibit the levying of user fees or other regulatory charges properly enacted within the government’s sphere of jurisdiction.

Although in today’s regulatory environment, many charges will have elements of taxation and elements of regulation, the central task for the court is to determine whether the levy’s primary purpose is, in pith and substance: (1) to tax, i.e., to raise revenue for general purposes; (2) to finance or constitute a regulatory scheme, i.e., to be a regulatory charge or to be ancillary or adhesive to a regulatory scheme; or (3) to charge for services directly rendered, i.e., to be a user fee. In order to determine whether the impugned charge is a “tax” or a “regulatory charge” for the purposes of s. 125, several key questions must be asked. Is the charge: (1) compulsory and enforceable by law; (2) imposed under the authority of the legislature; (3) levied by a public body; (4) intended for a public purpose; and (5) unconnected to any form of a regulatory scheme? If the answers to all of these questions are affirmative, then the levy in question will generally be described as a tax.

The levies are properly described as being, in pith and substance, taxation enacted under s. 91(3) of the Constitution Act, 1867. They are enforceable by law, imposed under the authority of the legislature, and levied by a public body for a public purpose. The appellant has not demonstrated that the levies are connected to a “regulatory scheme” which could preclude the application of s. 125. The charge does not form any part of a detailed code of regulation. No costs of the regulatory scheme have been identified, to which the revenues from these charges are tied. The appellant does not seek to influence the respondent’s behaviour in any way with these charges. There is no relationship between the respondent and any regulation to which these charges adhere. Although the Indian Act is legislation in relation to “Indians, and Lands reserved for the Indians”, this does not, in itself, create a “regulatory scheme” in the sense required by the Constitution.

As these taxes are imposed on the respondent, which it is conceded is an agent of the provincial Crown, s. 125 is engaged. The taxation and assessment by‑laws are accordingly inapplicable to the respondent.

Source http://scc.lexum.umontreal.ca/en/1999/1999scr3-134/1999scr3-134.html

June 10, 2010 Regional District of Central Okanagan Regular Board Meeting Minutes

There being no further business the meeting was adjourned In Camera at 11:10 a.m. Rise and report at 12:27 p.m.

The Regional Board rose from In Camera to report on the following:

b) June 10, 2010 In Camera meeting: Westbank First Nation/RDCO Memorandum of Understanding - Proposed Hydraulic McCulloch) Lake, Trepanier Creek and Black Knight Mountain Regional Parks.

The Board approved completion of the Memorandum of Understanding with Westbank First Nation for the future acquisition and management of Hydraulic (McCulloch) Lake, Trepanier Creek and Black Knight Mountain Regional Parks.

Vancouver Island resident unaware her land held aboriginal bones, artifacts

..Archeologists worked on site for several days last year, charging as much as $85 an hour. (CBC)
A property owner and her family from Vancouver Island are up in arms over a $35,000 bill she was held responsible for after her land was registered as a heritage site.

"We felt invaded," said Louise Allix.

Allix was required by law to hire an archeology team last year — to dig up the family property — before she was allowed to build a house just outside of Parksville. Bones and aboriginal artifacts were found, but her son said not much has been done with that discovery.

"It's just a box full of artifacts — that aren’t even on display," said Tim Allix. "If the B.C. government had to pay $35,000 for this, they wouldn't do it. They're saying 'Ah, let's just pass this on to the landowner.'"

Under the province's Heritage Conservation Act, landowners whose property has been designated a heritage site cannot build until archeologists have done an assessment and removed any First Nations artifacts or human remains — at the landowner's expense.

Individual violators face possible fines of up to $2,000 or six months in jail for altering a heritage site and up to $50,000 or two years in jail for damaging one.

"I never would have imagined that there would be bones under the ground," said Louise, who has lived on the property for 40 years, in a neighbourhood where there are several other homes.

"We had a garden here and dug it up all the time and never found anything."

No system to inform landowners
Many B.C. residents don't know their land has been designated, because there is no system in place to inform them. The province keeps the database of sites that are reported to them, by First Nations and other interested parties, but that information is not shown on land title documents.

Louise Allix and her son Tim feel they should not have to pay $35,000 for the archeological dig on family property. (CBC)
There are now 38,000 registered sites with some 2,000 new ones added every year. The minister responsible, Kevin Krueger, acknowledged that the lack of disclosure has been a long-standing problem.

"It's an ongoing issue," said Krueger. "We are carefully working through how to address this whole issue."

Beginning in 1965, the Allix family lived in a house on one of three lots, near the Englishman River — an area where the Nanoose First Nation lived several hundred years ago.

In 2007, Louise and her husband Hereward decided to build a smaller house on the lot next to the main family home that they could move into, because, she said, as they got older, they were having trouble with stairs.

The Allix family decided their aging parents had to move out of the old house, when the stairs got too difficult. (CBC)
Louise said a local archeologist heard of their plans and sent a letter informing them of their obligations, so they hired an archeological consultant to do the work.

"The [house] construction was delayed by months," said Tim, who stands to inherit some of the same property. "Every step of the way there was another permit that had to be applied for."

"Instead of the digging taking two days — which we had thought it was going to be — it was something like two weeks," said Louise. "All these people, crawling about at 80 bucks an hour.

"My mom had to pay for their lunches," Tim added. "It's right on the bill. Accommodation and meals."

Bill 7 times estimate
The original estimate was $4,000. However, Louise said, after the team found part of a human skull, they decided to sift through the dirt for several more days. They also recovered a dog skeleton, several arrowheads and a hand-carved pin.

Her husband was in his 80s and in poor health while this was going on, Louise said. He died last summer, and his son and wife believe the stress hastened his death.

"He broke down and cried one day. He just broke down and he cried. He didn't know how to deal with it," said Tim. "It makes me want to cry — to think of him getting that upset."

Louise said the $35,000 final bill came as a huge shock — and because she lives on a fixed income, she doesn't have the extra money to pay it.

Nanoose First Nation historian Wayne Edwards said all property owners whose land could be affected should be informed by the province. (CBC)
"If the bill were split up among taxpayers — between everybody in the province — it would be peanuts. But for me it's a heck of a lot," said Louise.

"I don't really care who pays it, but it shouldn't be us," said Tim.

The B.C. Real Estate Association has been pushing the government for years to compensate landowners for whatever losses they incur in such cases.

"If society is benefiting from whatever the government is doing, society should pay for it, not the landowner," said CEO Robert Laing. "The cost can be horrendous. And it isn't fair."

Buyer beware, says First Nation
When the B.C. Liberals were in opposition, some of its MLAs also called for full disclosure and compensation.

"Buyer beware," said Wayne Edwards, historian and former chief of the Nanoose First Nation. "That land you are buying may be of historical importance to First Nations."

Edwards said he agrees with the Allix family that every B.C. landowner and buyer whose property might be affected should be told.

"Homeowners should be afforded the courtesy of having that kind of information," said Edwards.

With no system in place, he said, some property owners bulldoze through precious artifacts, because they don't know or care that they are there.

Kevin Krueger, B.C.'s minister responsible for the Heritage Branch, said the government is working on solutions 'in a big picture way.' (CBC) "We've found artifacts in pawn shops and in private collections. From areas that are known archeology sites," he said.

Over the years, there have been several disputes, all across the province. Last year, police were called on a property owner in Oak Bay, near Victoria, who was trying to build $1 million home without the proper site alteration permit.

"Heritage can be preserved or destroyed," Edwards said. "And the biggest problem that we've had is that it's been destroyed."

He believes the cost of preserving heritage should be shared. Otherwise, he said, there is a great incentive for individual property owners to ignore the rules — to avoid getting stuck with the bill.

"A lot of people are saying why should I say anything? And that's unfortunate," he said.

'Heritage can be preserved … it's being destroyed.'
—Nanoose First Nation historian Wayne EdwardsEdwards pointed to a plain brown box sitting on property bought by the province in the 1990s at Craig Bay, also near Parksville. The box holds ancient bones, dug up when the area was developed, before the province bought the site to end the dispute between First Nations and the developer planning to build there.

Edwards said that, as the landowner, the province should have re-interred those bones long ago.

"I'll be happy when they are back in the ground," he said. "It saddens me. But the province is broke. They tell us that they are broke and they don't have money for this kind of thing."

Better forgiveness than permission
Even if the government makes changes, Krueger indicated landowners would still bear most of the financial responsibility.

"The ownership of the land on the surface doesn't mean unrestricted control of what happens subsurface when the ground is disturbed," said Krueger. The minister also said the registered sites are just a small fraction of the real number across the province.

Bones from an extinct dog were considered to be one of the more important finds on the property. (CBC)
Tim is currently unemployed — and expects to face the same hurdles his mother did, if he tries to build on the other empty lot when he inherits it.

"I think it's better to ask forgiveness than permission," he said. "Then say — oops, I didn't know."

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B.C. First Nations leaders are calling for a province-wide HST exemption for their members.

Penticton Indian Band’s Stewart Phillip, head of the Union of B.C. Indian Chiefs, told the Capital News Tuesday, that’s the demand he will make when he and other First Nation leaders meet with Finance Minister Colin Hansen on Thursday.

Saying he was “not impressed” that Hansen waited until the “11th hour,” to meet despite repeated attempts by Native leaders over the past few months, Phillip said he will go to the meeting and will press for B.C. to follow Ontario’s lead and exempt B.C. aboriginals from paying the HST on and off reserve

Unlike B.C., which does not have a history of treaties between First Nations and the federal government, Ontario has exempted its Native people from sales tax both on and off reserve for many years, said Phillip.

In B.C., there has been a sales tax exemption for First Nation members but only for goods purchased on reserve.

But, he said a majority of First Nations people live off reserve in B.C., in part because of a lack of housing and jobs in their home communities. Many aboriginals also tend to have a lower income and because of that, the HST will affect them particularly harshly.

“It will be another burden in an already dire situation,” he said.

Support for a mirror of the situation in Ontario is widespread among B.C. First Nations across the province, according to the Union of B.C. Indian Chiefs, including First Nations here in the Okanagan.

Chief Robert Louie of the Westbank First Nation said he supports the move to bring in a sweeping HST exemption for First Nation people in B.C. both on and off reserve.

“If the province of Ontario can do it, why can’t the province of British Columbia?” he said.

Louie believes the “vast majority” of First Nation people are opposed to the HST here but added it’s still unclear what will happen in regard to the current initiative petition campaign to have the tax scrapped and as a result, would not speculate on what will happen if a province-wide exemption is not granted to First Nations people.

On the WFN reserves, the WFN government currently collects a five per cent tax—equivalent to the GST—from its members on just three items, alcohol, tobacco and automotive fuel.

Other purchases by First Nation members of products bought on reserve are not taxable. First Nation members pay sales tax and GST on goods bought off reserve just like non-native people.

Louie said information from the Canada Revenue Agency has shown the amount of administration will increase with the introduction of the HST but other than that, little will change on WFN reserves.

The issue, he added, is really an exemption for First Nation people shopping off reserve across the province.

Phillip said after a recent meeting with leaders of the Fight HST group—lead by former Social Credit premier Bill Vander Zalm and trying to have the current law allowing the HST rescinded—members of the Union of B.C. Indian Chiefs vowed to do all they could to stop the new harmonized sales tax.

The tax will replace the current five per cent GST and the seven per cent provincial sales tax as of July 1 with a combined 12 per cent sales tax.

The new tax will be applicable on a host of items and services currently exempt from the PST.

Despite many economists supporting the introduction of the HST in B.C., saying it will be good for the economy, a recent StatsCan report said the introduction would immediately increase costs for an average B.C. household by about $500 per year.

The Fight HST group has gathered the signatures of 15 per cent of all registered voters is all 85 B.C. ridings on petitions to try to force the government to either hold a non-binding provincial referendum on the HST or introduce legislation abolishing it. If the latter route is followed, the Liberals have a majority in the legislature to vote such a bill down and keep the HST in place.

As part of the deal it made with Ottawa to create the HST, the province will get $1.6 billion.

But unlike Ontario, which got $4 billion in its HST deal with the federal government, B.C. is refusing to pass the money it received onto residents in the form of HST rebate cheques.

awaters "at" kelownacapnews.com

Kelowna city council opted not to sign a memorandum of understanding designed to align the city and Westbank First Nations on community planning and economic development Monday.

With an offer on the table to review the document in a workshop before signing, mayor and council decided it might be best to ensure they definitely understand what it all means.

Though the MOU is more a statement of intent than a legally binding agreement, the mayor said she felt the move was still prudent.

Taxpayers could be permanently on the hook for transfer payments to the Westbank First Nation, relating to the implementation of the band’s self-government agreement with Ottawa, which began April 1, 2005.

At that time, the federal government agreed to a five-year deal, giving the band more than $4 million per year until 2010 to cover a variety of costs.

The money has been given in addition to more than $2 million in other transfer payments the WFN receives for health care, housing and other social programs.

But WFN director of operations Pat Fosbery said that his First Nation has started renegotiating with the federal government, believing self-government transfer payments should be made in perpetuity.

“The Westbank First Nation envisioned that this would be an ongoing payment from the federal government, just as the province receives transfer payments from the federal government,” Fosbery explained.

The WFN considers itself on equal footing with the province in many respects when it comes to its relationship with Canada, although its jurisdictional powers vary from those of the B.C. government, said Chief Robert Louie.

The final transfer payment for the implementation of self-government was to be paid this year and was to be $4.5 million, according to Ministry of Indian and Northern Affairs budget documents.

The payments are used to support education, including operation of the Sensisyusten House of Learning, culture, social and economic development, legislative and administrative services and processing membership status cards.

“A portion of it also goes to capital projects,” explained Fosbery.

The ministry also said funding could be used for land, resource and environmental management.

Meanwhile, the Canadian Taxpayers’ Federation is calling on the ministry to make public the salaries of chiefs and band councillors across Canada.

The federation released information Thursday, stating the salaries of some chiefs exceed remuneration for provincial premiers and in some cases the prime minister.

“The Canadian Taxpayers’ Federation was recently sent a brown envelope containing information that showed the chief of the Enoch Cree Nation, a community of 1,529 just outside of Edmonton, was paid more than Alberta’s premier––getting paid $180,000 tax free,” the organization said.

“Meanwhile, the average Enoch band member’s earnings are closer to $20,000 per year.”

Unlike those bands, however, many First Nations do make their chief and councillor salaries public, the organization added.

The Westbank First Nation does post remuneration figures, showing Louie was paid $100,000 tax-free last year while Couns. Brian Eli, Larry Derrickson, Loretta Swite and Mike DeGuevara were each paid $60,000 tax-free.

jluciw "at" kelownacapnews.com

Westside Road concerns will be addressed as part of the Westbank First Nation’s application to operate a gravel pit near Fintry, according to Chief Robert Louie.

Louie made the comments Wednesday, four days after residents expressed concerns in the Capital News regarding the impact gravel truck traffic would have on Westside Road if the pit were permitted. (Proposed Gravel Pit Has Nearby Residents Worried, April 4, Page A10).

The residents said they were opposed to the idea of a sand and gravel quarry primarily because Westside Road would be unsuitable for the resulting 40 gravel truck trips per day.

Louie explained that his band would consider funding Westside Road upgrades if the pit permit were awarded.

“The province has come back to us and said it would like to see some road upgrades,” Louie commented.

“This is something we’re still working through right now is agreements to contribute potential moneys to improve the Westside (Road) so that all travelers can take the benefit of that.”

Louie indicated that Westside Road is in need of an estimated $15 million in upgrades.

However, the WFN chief would not say how much money his band would commit to improvements.

“It’s not cheap and this is not to a four-lane standard by any means. This is just dealing with the lack of shoulders, the tight corners, that type of thing. We’ll have to work (the) figures out.”

The chief also acknowledged the idea of using a barge to ship materials on Okanagan Lake.

“That’s a possibility of finding a barge that would be suitable for that particular venture and then having it land on one of our reserves, probably Indian Reserve No. 10…(on) lands adjacent to the (Bennett) bridge.”

Alternatively, the North Westside Community Association suggested building a back road southwest or northwest out of the pit, adding that under no condition would its 300 members support the addition of 40 gravel truck trips per day on Westside Road.

The B.C. government has posted legal notices in newspapers for the last few weeks informing residents that the WFN and Canadian Aggregates Inc. has applied for the gravel permit on a lot about one kilometre south of the La Casa subdivision.

The application indicated that 249,000 metric tonnes of gravel would be produced at the mine each year.

Residents and Crown land licence holders in the area have been invited to address concerns or comments to Chief Inspector of Mines/Section Head Crown Lands, c/o Front Counter BC, 441 Columbia St., Kamloops, BC V2C 2T3 with reference to file number 1620848 Westcan pit.

The deadline for submissions is April 30.

For more information about this gravel operation see what we have gathered on the Okanagan Aggregate Task Force webpage on this website.

The Westbank First Nation has held the line on property taxes this year.

The band’s chief and council approved a tax increase of 0.2 per cent in its 2010-2011 budget, or $2.40 more for the average homeowner this year, when compared to 2009-2010’s tax notice.

The chairman of the Westbank First Nation Advisory Council, which represents non-natives living on band land, said the band’s budget shows “good financial management.”

Terry Turcan commented that he was pleased the WFN went easy on taxpayers’ pocketbooks this year.

“It’s a very small increase––a little blip.”

Growth on WFN lands helped offset taxes for residents living on reserves, Turcan noted.

“There’s no question about it, the commercial growth especially has been significant.”

Meanwhile, Chief Robert Louie said in a press release that the WFN’s budget is the result of “extensive planning and consultation by all stakeholders over the past six months.”

“It reflects the cooperation and goodwill that are key to the WFN’s financial progress,” Louie said.

The chief didn’t return calls for further comment.

The band said that, on average, a homeowner living on Westbank First Nation land would pay $1,222 in property taxes this year, after applying for the Home Owners’ Grant.

The WFN expects to collect $9.9 million in property taxes, with $2.6 million spent on administration, financial services, human resources and information technology; $2 million set aside for reserves and contingencies; $1.4 million returned to residents in the form of homeowners grants; $1.2 million spent on transit, the library, regional parks and community centres; $1.2 million for economic development, planning and engineering and $400,000 for recreation and youth programs.

The band expects to collect a further $20.6 million from other sources of income, including fees for services, fines, development cost charges, community forest operations and revenue from a handful of corporations.

In turn, the WFN plans to spend an additional $17.1 million on other operations over the next year, with the remaining $3.5 million to be placed in reserves for capital and other future expenditures, said the WFN.

The First Nations Tax Commission and the Minister of Indian Affairs are required to sign off on the WFN’s budget later this spring, clearing the way for tax notices to go out to 3,368 homeowners at the end of May.

WFN property taxes are due on July 2.

For more information, call the band’s finance department at 250-769-2400.

The WFN taxes are not to be confused with those charged to residents living in the neighbouring District of West Kelowna municipality.

Their bills go out separately the last week of May and property taxes are due to the District of West Kelowna on July 7.

West Kelowna residents face a net tax increase of 2.35 per cent, or an additional $32 based on a house assessed at $492,000.

Base property taxes on such a home were $1,354 last year.

The 2.35 per cent increase excludes a $126 shift in property taxes from the Central Okanagan Regional District, which is being caused by West Kelowna’s decision to manage its own transit contract.

For more information call West Kelowna’s property tax information line at 778-797-8860.

jluciw "at" kelownacapnews.com

http://www.investkelowna.com/pdf/IndustrialLandProfile.pdf

http://www.valleyvoice.ca/_pdf/060830.pdf

March 22, 2010 Regional District of Central Okanagan Governance and Services Committee Minutes

3.2 District of West Kelowna - SILGA Resolution Submission (for information)

EDGSON/FINDLATER
THAT the District of West Kelowna proposed resolution to the 2010 SILGA convention regarding a request that UBCM lobbies the Ministry of Health Services to establish an equitable provincial system to collect funding from Regional Hospital Capital projects from non-aboriginal residents residing on First Nation lands be received.

CARRIED

A new chapter is being written in the B.C. government’s relationship with the Westbank First Nation, according to Aboriginal Relations and Reconciliation Minister George Abbott.

The Westbank band announced in November it was suspending its involvement in B.C.’s treaty process and looking to the courts to settle land claims in an area spanning 10,500 square kilometres in the Central Okanagan and Lower Arrow Lake regions.

However, Abbott said new talks started with the Westbank band last month and the B.C. government is optimistic court action can be averted.

“It’s important for all of us to work toward a better tone and a better outcome. No one benefits from protracted litigation,” said Abbott.

“We would go through three levels of courts, and then when we ultimately arrived before the Supreme Court of Canada, (the justices) would like advise us that we’d need to sit down and work out our issues, as happened with the Haida.”

The Haida have since signed a reconciliation protocol with the B.C. government and Abbott introduced an act in the Legislature last week in support of that agreement.

The deal renamed Queen Charlotte Islands as Haida Gwaii and set out terms for logging, managing protected areas and preserving heritage sites.

The minister said the B.C. government is now open to negotiating a similar reconciliation protocol agreement with the Westbank Nation as an interim measure.

“Whether a treaty comes in 10 years or 50 years with the Westbank First Nation, we need to find more and better ways to work together today.”

Westbank Chief Robert Louie announced last week that he was hopeful a reconciliation agreement could be reached in late July or early August.

While Abbott said he was optimistic the band and the provincial government could reach mutually acceptable terms, he was cautious about putting a deadline on a deal.

“We’ve agreed to sit down and try and work through range of issues. I made a commitment that we should get together in late July or early August, but, I’ll be surprised if we resolve all issues and proceed to a reconciliation protocol at that point,” the minister continued.

“Everything is always contingent on the ability of all parties to reach agreement.”

Ministry staff will work with the band to determine the issues to be addressed in the reconciliation protocol, which Abbott called a “decision making matrix,” to address large, complex land use matters.

However, Abbott said he wouldn’t want to get into details about specific issues the Westbank agreement might address.

“I wouldn’t want to speak definitively about any of those things until we got into the discussions. We want to hear the things that are of most concern to Westbank first Nation.”

Westbank First Nation title and rights manager Raf DeGuevara said his band hopes the reconciliation protocol would address issues such as shared decisions on land use, resource revenue and land selection.

“Right now, everyday lands are being given away without having settled the land question,” said DeGuevara.

Louie also noted last week that the band’s lawyers would continue working toward court action behind the scenes as a fallback position, should a reconciliation agreement fail to materialize.

jluciw "at" kelownacapnews.com

page 2

During an address to residents of the Westbank First Nation (WFN) reserve, Chief Robert Louie outlined the band’s development plans. Louie noted that two projects, the Real Canadian Superstore and a joint venture with Property
Development Group (PDG), are currently on hold. The PDG West Kelowna Landing project is looking to secure one more anchor tenant before proceeding, said Louie.

page 3
However, the band is considering a number of other projects such as a joint venture shopping centre called the Gathering Place and the development of a six-hectare island and marina in the Okanagan Lake. WFN and Canadian Aggregates Inc. also recently applied to the Ministry of Agriculture and Lands for an investigative permit for their proposed joint venture gravel pit project. Louie said the band council is currently working on its budget deliberations, which could increase taxes for non-First
Nations residents by 1.5 per cent. The council is keeping the state of economy in mind while working on the numbers and trying to keep the tax increase close to the levels recently approved by Kelowna and West Kelowna, which is 3.55 per
cent and 2.0 per cent respectively.  WFN chief and council are also close to passing a controversial banishment law aimed at serious criminal offenders that seeks to banish “undesirables” from band lands who present a tangible threat to the community.

(Kelowna Capital News, April 26)

Land settlement talks have resumed between the Westbank First Nation and the provincial government, five months after the native band announced it was suspending its involvement in B.C.’s treaty process.

Chief Robert Louie said that relations between his band and the government took a positive turn after B.C. Aboriginal Relations and Reconciliation Minister George Abbott agreed to a reconciliation process with the Westbank Nation, similar to one the province confirmed this week with the Haida.

“We have a handshake agreement right now,” said Louie.

“Our expectation is that this would be formalized and in place no later than the first week in August.”

The Westbank chief said that if a framework for the reconciliation process could be established this summer, his band would be willing to suspend legal action.

In November, the band suspended involvement in B.C.’s treaty process, saying it was fruitless, and prepared to settle rights and title claims through the courts instead.

“All the money and resources were not achieving anything so we formally announced our treaty suspension and we made it clear to the province that we had no other alternative but to commence a lawsuit to protect our traditional lands,” Louie stated.

However, the chief mentioned preparations for litigation would continue behind the scenes should his band need to resume court action in the future.

“We’ve got teams of lawyers working on it and getting ready for it just in case. But (reconciliation) is an alternative for us to work out a process to deal with issues one by one.

“It’s something very important to our community if our nation is to finally move along substantive land clams that are many, many years old now.”

The band formally entered the treaty process in 1992.

Unlike the treaty process, which involves the Canadian and B.C. governments and a first nation, the reconciliation process would consist of bilateral negotiations aimed at resolving sticking points between the province and Westbank, noted the chief.

Louie’s reconciliation announcement was made Thursday night on the heels of Abbott’s introduction of the landmark Haida Gwaii Reconciliation Act in the B.C. Legislature earlier in the day.

“The Haida Gwaii Reconciliation Act represents a new beginning for the Haida Nation, the people of Haida Gwaii and the province,” said Abbott in a press release.

“The legislation acknowledges the uniqueness of Haida Gwaii and the Haida Nation and confirms government’s continued commitment to build a new relationship with aboriginal people.”

The legislation backs up a recognition protocol agreement the government signed with the Haida Dec. 11.

The agreement immediately changed the name of Queen Charlotte Islands to Haida Gwaii.

Plus it set out terms for future land use agreements, established objectives for logging practices in Haida traditional territory, determined an allowable annual tree cut, approved plans to manage and protect environmentally sensitive areas and developed standards to identify and conserve heritage sites.

Abbott was unavailable for comment Friday regarding Westbank reconciliation.

Westbank First Nation title and rights manager Raf DeGuevara said his band hopes that its reconciliation protocol would achieve something similar, serving as an interim step toward shared decision making on land use, resource revenue sharing and land selection.

“Right now, everyday our lands are being given away without having settled the land question,” said DeGuevara.

The Westbank First Nation lays claim to 10,500 square kilometres of traditional territory in the Central Okanagan and Lower Arrow Lake regions of the province.

jluciw "at" kelownacapnews.com

Chief Robert Louie talks with new WFN chief administrative officer Pat Fosbery outside the band’s pavillion at Pine Stadium, following Louie’s annual address to non-band members who live on WFN land. Photo
Jason Luciw/Capital News

Development dominated Chief Robert Louie’s annual address to a gathering of non-band members who live on Westbank First Nation land.

It turns out even the development-savvy WFN could not escape the effects of 2009’s global economic downturn, according to stats Louie provided.

“In 2008 we had 248 building permits issued. In 2009, we had about 154 building permits,” Louie told more than 300 people gathered at the Sensisyusten Community Centre for the WFN Advisory Council’s annual general meeting.

The advisory council represents more than 7,000 non-members living on WFN land, providing input to the band’s chief and council on issues like taxation, services, bylaws and development proposals.

Looking forward, Louie said development seems to be on the rebound on WFN land this year.

Construction has started on the new Real Canadian Superstore at Butt Road and Louie Drive, adding almost 10,000 square metres of retail space.

As far as residential construction goes, 190 condominium units are under construction at Copper Sky on Old Okanagan Highway.

Phase three of construction has been approved at the Sage Creek manufactured home development on Elk Road, with another 63 units going in.

“That will necessitate more (servicing) improvements like sidewalks and streetlights. We know those are issues for the safety of you and all who use those roads,” Louie said.

Another 34 single-family units have been approved in phase eight of Sonoma Pines behind Canadian Tire. Elk Ridge, with another 85 residential units, was recently approved too, said Louie.

Other commercial developments approved this year include 3,530 square metres of retail space at the corner of Louie Drive and Butt Road, with a new drug store planned for that site and construction scheduled start later this month.

A 1,765-square-metre business park is being constructed on East Boundary Road.

Louie also spoke about the WFN’s planned shopping centre project with Property Development Group of Vancouver, which will add 14,000-square-metres of retail space on property between Boucherie and Westside Roads, along Highway 97.

Calgary-based Landmark Cinemas announced Thursday it will be one of the tenants, building an 1,850-square-metre state-of-the-art cinema and adding another six screens to the 23 theatres already offered in the Kelowna area.

A drug store, two banks and two restaurants are also planned for the strip mall, which is subject to approval in a July 8 referendum.

WFN members must endorse a 99-year lease allowing PDG to build and operate the mall.

If approved, construction is slated to start in September.

“And of course there are several other major commercial and residential developments scheduled to begin in 2011 and 2012, so the Westside is really in for dramatic change,” Louie continued. “It’s going to be a full fledged city, there’s no question about that and I keep saying one of these days, not too many more years away, high-rises are inevitable.”

With all that development comes the need for infrastructure, said Louie, who noted the band would work with developers to extend sewers, build water pump stations and add sidewalks and streetlights to reserve lands.

The Westbank First Nation band council’s closed-door policy and members-only attitude are baffling and archaic.

The WFN claims to be a progressive band, yet it shies away from modern principals of equal access, openness and transparency in government by denying media and the general public attendance at council meetings.

This gives the impression the band is intolerant of outsiders and has things to hide, whether that’s true or not.

These matters of openness and transparency are being raised incidentally because this week the band council debated and subsequently rejected a media request to attend meetings.

WFN director of operations James Montain vaguely explained council’s decision.

“You may be aware that non-members of WFN can only attend a council meeting at the pleasure of the council. After due consideration of your request, council has declined,” wrote Montain in an e-mail to the Capital News.

“I hope you understand (their) decision.”

In fact, the decision is difficult to understand for several reasons.

For starters, based on Montain’s explanation, approximately 8,000 non-members who pay taxes to the band are also wrongly excluded from attending the same meetings.

If people are paying taxes to a government, those taxpayers should be permitted to at least attend the meetings where decisions impacting their wallets are being made.

And since it’s impossible for all 8,000 non-member reserve residents to attend the meetings, the media should be permitted and report on behalf of taxpayers.

Similarly, even the WFN’s 700 members could not feasibly attend council meetings all at once, even though the meetings are open to them.

Therefore, it can be argued that media should be permitted to attend and report on band business on their behalf as well.

Next, it should be noted that the WFN is managing the $41 million Westside Road interchange project, which B.C. taxpayers are funding.

When the WFN council makes decisions concerning the management of that project, the media should be there to report back to the general public on how the council is handling their money.

Another reason for open council meetings is the band’s symbiotic relationship with the District of West Kelowna, Peachland and the rural area surrounding those municipalities.

West Kelowna’s parks, recreation and fire departments and the Central Okanagan Regional District’s landfill and sewer plant serve the Westbank First Nation.

Decisions the WFN council makes on supporting or refusing these services impacts its partners and the media should be there to report on those matters too.

Neighbours living in West Kelowna also deserve to know the band’s plans for development on its reserves next door, so they can weigh in on how these developments would impact them.

Media plays a role in informing residents of these plans and educating them on how to provide input to the band, so council can in turn consider how these developments impact their neighbours.

But if for no other reason, the Westbank First Nation should allow media into its meetings as a point of living up to its word.

When the WFN negotiated the right to self-government five years ago, it was understood that council would allow media and the general public to attend their meetings, much like any other government would.

Instead, by closing itself off, the chief and councillors are sending the message that the WFN plays by a different set of rules than other governments and is content to exclude outsiders on a whim.

Closed doors and exclusive behaviour reflect poorly on a first nation that is otherwise so very progressive.

It’s also a poor image for the WFN to be projecting when it’s attempting to give businesses and residents good reasons to build, set up shop and buy homes on its land.

If West Kelowna, Peachland or the regional district have no trouble being transparent, then clearly Westbank First Nation’s council shouldn’t have any problem doing so as well.

Jason Luciw is the Capital News’ Westside reporter. He can be heard on AM 1150s Open Line with Phil Johnson and West Kelowna Mayor Doug Findlater from 9 a.m. to 10 a.m. every second Wednesday of the month.

jluciw "at" kelownacapnews.com