We recently discussed an environmental dispute between Domtar and a First Nations Community that may be headed to court. Another First Nations dispute settled recently in the Nation’s highest court, the Supreme Court of Canada.
While the case is not what I thought at first glance (excess water), it is an interesting “history lesson” nonetheless.
The Lac Seul First Nation Land Flooded
The issue dates back to the 1920s when Canada and the provinces of Manitoba and Ontario decided to flood land as a potential storage area for a large hydroelectric dam project. According to Mandell Pinder, “The Lac Seul First Nation (“LSFN”) had a large reserve on Lac Seul set aside under Treaty 3, but Canada did not inform LSFN of its plans.”
Again from Mandell Pinder, “Within about 5 years, the dam flooded over 11,000 acres of LSFN’s reserve destroying homes, gravesites, wild rice harvesting areas, muskrat trapping areas, and timber. Canada knew that these damages were an inevitable consequence of the project and would be devastating to LSFN, but never took steps to inform or consult with LSFN about the dam.”
Approximately 17 percent of LSFN’s Reserve (11,000 acres) was now permanently flooded.
The issue dates back to the 1920s when Canada and the provinces of Manitoba and Ontario decided to flood land as a potential storage area for a large hydroelectric dam, but didn’t inform LSFN (Image by Аркадий Макаров from Pixabay).
LSFN Sues Canada
Fast forward to 1991 when LSFN sued Canada for breaching its fiduciary duty and obligations under the Indian Act and Treaty 3. After hearing the case, the Federal Court ordered the Government of Canada to pay LSFN $30 million.
However, LSFN appealed to the Federal Court of Appeal stating that the amount did not sufficiently compensate them for the loss of the flooded land. The Federal Court disagreed, but the Supreme Court of Canada agreed.
Supreme Court of Canada
The Supreme Court of Canada (SCC) in their Case in Brief stated, “Years later, the LSFN brought a claim for that damage. The Federal Court ordered the government of Canada to pay the LSFN $30 million in compensation. The judge considered the value of the land in the 1920s but without the added value for the hydroelectricity project.”
“Not Enough”
Still from the SCC Case in Brief, “The majority of judges said the compensation amount should have included the added value for the hydroelectricity project. They explained that the compensation owed by Canada to the LSFN should be the amount that a properly negotiated deal by Canada would have earned them. This meant a deal based on the value of the land to those who were wanting to use it, which in this case was the hydroelectricity project. The majority agreed with the LSFN that $30 million was not enough to include that project and ordered that the Federal Court reassess the amount.”
The Supreme Court set aside the lower court judgments and returned the case to the trial court to reassess the equitable compensation owed to LSFN on this basis.
Water Issues
When I first heard reports on this story, I thought it was a “simple” case of excess water, so I looked into it. I had no idea about the sordid details of these events in the 1920s. Strictly speaking, this was not an environmental issue on which we would report but the case was interesting and worth sharing.
Water issues in general are not new to First Nations. There have been drinking water advisories in First Nation communities for years. The Government of Canada is making progress in addressing these, but there are still 51 long-term drinking water advisories in 32 communities.
2021 Water Issues
Flooding lands and treaties aside, there are water issues affecting communities across the globe. This year we have seen several communities feeling the effects of excess water. Changing weather patterns, increasing development with more impervious surfaces has resulted in catastrophic flooding events.
We have been involved in water issues (too much/too little) for years. You can read our blog, “Litigating Water: Too Much Water and Not Enough Water.” We expect water to be a central issue in the years to come.
For more on the LSFN case, you can follow the links above, including the Case in Brief by the Supreme Court of Canada.
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