First Nation’s judicial victory sets precedent for fair compensation

More than 90 years after Lac Seul First Nation reserve lands were flooded to build a hydroelectric dam, Chief Clifford Bull said his people could finally receive fair compensation.

The impact of the dam on Lac Seul First Nation, traditionally the homeland of the Obishikokaang Anishinaabeg, has been severe. It destroyed the nation’s way of life and many people moved out, Bull says.

“When I say total devastation, I mean there were 80 houses that sank… our sacred grounds, our campsites, our graves were washed away and bones were exposed – skulls were exposed – and this continues today, ”he said.

In 1991, the country filed a lawsuit against Canada in Federal Court and was awarded an initial offer of $ 30 million in damages. But the nation felt that came close to justifying the losses and appealed.

Bull’s optimism that fair compensation is now possible stems from a recent Supreme Court of Canada (SCC) ruling setting a precedent on how compensation should be calculated.

The SCC’s decision revolves around Canada’s “fiduciary duty” to Indigenous peoples in the context of reserve lands, as opposed to traditional territory. In this case, it means that Canada failed in its obligation to act in the best interest of the nation by failing to protect its reserve lands when it chose to flood the reservoir. In Southwind v. Canada, the SCC essentially addresses the question of how equitable compensation should be calculated when the fiduciary duty is breached.

Construction of the dam began in 1929, and by 1934 the water was rising. More than 11,000 acres, or about 17% of the reserve, have been continuously inundated, destroying homes, wild rice fields and graves. The conduct was blatant, “even by the standards of the time,” says the majority decision drafted by Judge Andromache Karakatsanis. The ruling rejects a lower court ruling that $ 30 million is sufficient and sets new guidelines for calculating fair compensation for specific claims.

Fair compensation should have included the value of the hydroelectric project, and not just the value of the land, the ruling says. With the Supreme Court of Canada ruling in favor of Lac Seul, Chief Bull says the next step is to secure payment.

The nation is asking “just over $ 500 million,” which takes into account the amount of money the industry has earned since the dam was built, he said, adding that the community has only started to receive electricity only in the 1980s.

“Money was earned at our expense, and now that the Supreme Court has ruled in our favor, we have a good opportunity here… (to) see dollars go back to the First Nation,” he said. “There is no single sum of money that can bring it all back … but at least we can continue on the road to recovery.”

A priority is to “build a healing lodge, because there are a lot of social issues associated with colonization, oppression and all the things that come with it,” Bull said.

The Supreme Court said that when Canada inundated Lac Seul First Nation lands nearly 100 years ago, it was blatant, “even by the standards of the day,” in a case that created a precedent and which opened a new way for the calculation of damages. # cdnpoli

Bull has said he would rather negotiate with Canada than settle what Canada owes in another legal battle.

“We think that if you want reconciliation, this is a great example of how you can do it – sit down across from each other and solve this problem in a way that is satisfactory to everyone,” said he declared.

The Justice Department declined to comment. Crown-Indigenous Relations and Northern Affairs Canada did not return a request for comment by the deadline.

Today, the hydroelectric project built over 90 years ago is still the Ear Falls Generating Station, operated by Ontario Power Generation (OPG). Next door is the Lac Seul generating station, built in 2009 in partnership between the nation and OPG. The First Nation has a 25 percent interest in this station.

Lac Seul power station
Ear Falls generating station, on the left, and Lac Seul generating station, on the right. Photo courtesy of Ontario Power Generation

Canada knew of ‘catastrophic’ impact, ruling says

The Federal Court ruled that $ 30 million was fair based on the value of land for agricultural purposes in 1929, the year construction of the dam began, plus other non-calculable damages. The trial judge determined that Canada had an obligation to pay what it would have if it expropriated the land, assuming the project could not be stopped because Canada, Ontario and Manitoba did so. wanted. Further, because the nation had little bargaining power and Canada could legally have expropriated the land, the trial judge concluded that in reality the dam was going to be built. Additionally, the judge ruled that the nation would have been unlikely to negotiate a revenue-sharing deal for the project.

But the SCC said it was wrong to retroactively apply the expropriation laws, and because Canada had a duty to act in the best interests of the Lac Seul First Nation, compensation should be based. about what Canada should have done, not what it probably would have done. if he had obeyed the law. The ruling also indicates that Canada knew there would be a “catastrophic” impact on the nation.

“There are 688 Indians on the reserve, who are powerless to avoid this calamity, and who see the future with utter dismay,” wrote HJ Bury, an “supervisor of Indian woodlots” in 1929, adding that they were “stolen from their natural resources” and “driven from their homes”.

In 1934, between a quarter and a third of houses needed to be moved or replaced, estimated another government official. Over the next five years, further damage was recorded, according to the SCC decision. In 1937, Bury again alerted Ottawa to its “serious abuse of faith”.

“I consider these Indians to have been treated very badly,” writes Bury. “(If) this was a white colony, no one would have dared to flood the property without paying compensation before the flooding took place.”

In contrast, non-indigenous groups were compensated if their property was in the floodplain of the dam. The CSC decision highlights compensation negotiated with the Anglican Church Missionary Society, which received money to relocate its church and cemetery, and the Hudson’s Bay Company, which was paid for the “Rights of way” in the “territory of the company”, according to the decision.

Could the decision increase the liability of other government projects?

“One of the things this case is all about is that if there is to be a meaningful reconciliation, the relationship has to be reset in a way that squarely deals with what happened in the past,” said Elin Sigurdson. , associated with Mandell Pinder Law. cabinet, which represented the Lac Seul First Nation.

The majority decision underscores the importance of Indigenous peoples’ relationship to the land and clarifies that this relationship is part of the Crown’s fiduciary duty to Indigenous peoples, Sigurdson said. In other words, when reserve lands are set aside under treaties, it is a “fundamental betrayal of the treaty relationship” when Canada uses the lands for its own purposes.

“The likely impact of this decision is that it increases Canada’s liability for hundreds of specific claims,” ​​said Michael Bissonnette, West Coast environmental counsel.

This could have a significant impact on all kinds of government projects, given that the Trans Mountain pipeline expansion intersects with 400 existing specific claims, as an open letter from the Union of BC Indian Chiefs points out.

Confidentiality agreements keep the specific details of these claims out of public view, but Bissonnette says it’s likely the question of how much compensation is owed that is fueling the disagreements.

“Canada’s liability has been greatly increased as a result of this decision,” he said.

John Woodside / Local Journalism Initiative / National Observer of Canada

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