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‘Ambiguity’ in FCA ruling over flooded Indigenous lands could spur appeal to SCC

June 19, 2019

Lawyers’ Daily talks to Jessica Orkin about remedying historic wrongs to Indigenous peoples

The Lawyers’ Daily reports on a recent Federal Court of Appeal decision concerning the appropriate remedy for a breach of the federal government’s fiduciary duties to Indigenous peoples. The case involved the flooding of a significant portion of Lac Seul First Nation’s reserve in northwestern Ontario as a result of the building of a hydroelectric dam in 1929.

In 2017, the Federal Court held that the federal government had breached its duties to: (1) to act with loyalty and good faith to the Lac Seul in discharging its mandate; (2) to provide full disclosure and consult with the Lac Seul; (3) to act with ordinary prudence with a view to the best interest of the Lac Seul; and (4) to protect and preserve the band’s proprietary interest in its reserve from exploitation. The court ordered the federal government to pay Lac Seul compensation based on the fair market value of the land in 1929, which it found was $1.29 per acre.

Lac Seul appealed that decision on the basis that the compensation should have been based on a higher amount (for instance, based on the value of a revenue sharing agreement that the federal government should have negotiated on Lac Seul’s behalf).

A majority of the Federal Court of Appeal disagreed with Lac Seul and dismissed the appeal. A dissenting judge would have allowed the appeal, specifically noting that the Ontario government took great pains to inform the Hudson’s Bay Company of the plan to build the dam and the flooding that would result, and negotiated compensation with HBC on behalf of itself, Manitoba, and the federal government. Nothing of the kind was attempted with Lac Seul.

The Lawyers’ Daily spoke to Jessica Orkin about the approach that should be taken to remedying these kinds of historic wrongs:

Toronto Aboriginal rights lawyer Jessica Orkin, who acts on behalf of First Nations clients on similar issues as involved in Southwind said that case “demonstrates the real challenge of assessing how to rectify some significant historic injustices and how to begin looking at the standard for rectifying them.”

“The evidence from the judgment shows that the federal government didn’t think about this reserve, and didn’t work to get any kind of compensation or had any dealings with the First Nation before the hydroelectric dam was built and before a vast portion of the reserve was flooded,” said Orkin.

Orkin said [the deal between the government and the Hudson’s Bay Company] illustrates that [HBC’s] assets and interests were viewed as “more valuable and more worthy of consideration” and is another example of “colonial treatment and historical racism” against a First Nation.

“At the time, and this is clear across the judgment, Canada had the power under the Indian Act to make decisions for a First Nation in a very paternalistic way.”

The appellate court ruling suggests that there is a “limited expectation of how the government should have acted” toward Lac Seul in 1929, said Orkin, a partner with Goldblatt Partners LLP, who clerked at the Federal Court of Appeal before she was called to the Ontario bar in 2006.

“Justice requires that we expect more of the Crown. Accepting the extremely impoverished level of behaviour and the standard of fiduciary duty that comes from looking at the historical dealings does not lead to an appropriate reckoning with our history and the pathway forward to reconciliation.”

She explained that many similar cases across the country involve hydroelectric flooding, mineral exploitation, railroad construction and forest clearing “without addressing the interest or obtaining the consent of the First Nation affected.”

“Reserve lands are so tiny to start with when you think about how much land was provided under the treaties,” she said. “So these are very significant injustices historically.”

In terms of jurisprudence, Orkin was most struck by the split decision at the Federal Court of Appeal.

“We see in it a real indication of a challenge about confronting and managing these historical wrongs,” she said.

“It’s not enough to just recognize that there was a wrong or to say that we should have acted as we were legally required to act in 1929. That is often the standard that the courts will set. But if we’re looking at what reconciliation requires, we should be looking at a less impoverished standard.”

Read the entire article here.


Jessica Orkin

Practice Areas

Aboriginal Law