The Lac Seul First Nation in northern Ontario has achieved a key milestone in their long struggle to be adequately compensated for flooding of their lands caused by the construction of a dam.
In an 8-1 decision on Friday, the Supreme Court of Canada overturned $ 30 million in compensation and sent the case back to the Federal Court for reassessment, saying the initial analysis was flawed.
The case dates back almost a century to the creation in 1929 of a hydroelectric dam to supply electricity to Winnipeg under an agreement between Canada, Ontario and Manitoba.
The project consisted of raising the water level of Lac Seul by about three meters to create a reservoir.
It took place despite repeated warnings of the damage the flooding would cause to the Lac Seul First Nation reserve, and without legal authorization or consent from those affected.
Almost a fifth of the reserve’s best land – over 4,500 hectares – has been continuously inundated, destroying homes, gardens and wild rice fields and submerging graves.
As a result, part of the reserve became an island. Fishing, hunting and trapping suffered. Despite the sacrifices made by the First Nation in the name of generating more electricity, the reserve did not have electricity until the 1980s.
The Supreme Court said that Canada had failed in its obligation to preserve and protect the interests of the Lac Seul First Nation on the reserve, which included the obligation to negotiate compensation based on the value of the land for the hydroelectric project.
The long course of the case through the courts began when the First Nation filed a flood damage claim in 1985, and six years later Roger Southwind filed a civil action in Federal Court on behalf of the Lac Seul Indian Band.
The trial judge concluded that because Canada was authorized to expropriate the land for a public work under the provisions of the Indian Act in force at the time, the land should be assessed on the basis of an expropriation. in 1929, the Supreme Court noted.
On this basis, the judge concluded that the First Nation was not entitled to sums of money for any value that the land held for the hydroelectric project.
“In my opinion, this approach to equitable compensation for breach of fiduciary duty is wrong,” Judge Andromache Karakatsanis wrote for the majority of the High Court.
This flies in the face of the unique nature of the Indigenous interest in the reserve lands and the devastating impact of the flooding on the Lac Seul First Nation, Karakatsanis wrote.
“It does not reflect the honor of the Crown or serve the overriding purpose of reconciliation.
“The trial judge mistakenly focused on what Canada likely would have done, as opposed to what Canada should have done as a trustee,” she said.
“The fiduciary duty imposes onerous obligations on Canada. Duty does not disappear when Canada has competing priorities.
Jim Bronskill, The Canadian Press
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