WINNIPEG — What could be Manitoba’s next landmark aboriginal rights case hinges on four documents Canada asked federal judges to keep secret this week.
The documents are part of a case that has dragged on for 23 years, could end up at the Supreme Court of Canada and may result in a multimillion-dollar compensation settlement paid to three northern bands flooded by the Grand Rapids hydro dam in the 1960s.
The Cree bands — Grand Rapids, Chemawawin and Opaskwayak — allege Ottawa shirked its duty to protect them from flooding that destroyed their hunting, fishing and burial grounds, forced hundreds to relocate to substandard reserves, and shattered local economies and social structures.
And they say a batch of briefing notes and internal government memos prove Ottawa knew for years it was liable for failing to ensure the Cree were properly protected, represented and compensated when Manitoba Hydro and the provincial government forged ahead with the dam.
Those documents — especially four key ones — were the subject of a hearing Thursday before the Federal Court of Appeal. Lower courts gave the bands access to about half the 250-odd documents.
The rest were censored or kept secret after Ottawa argued they are covered by lawyer-client privilege and ought not to be made public or used as evidence by the bands. The bands appealed, hoping to expand their access to the documents.
“I would like Canada to come to its senses and do what’s right,” said lawyer Harley Schachter, who acts for Grand Rapids First Nation. “This case shouldn’t be in litigation but negotiation. Spending money and time and years on lawyers is not a way for honourable reconciliation.”
The case highlights the remarkably tortuous process that plagues aboriginal rights cases. Grand Rapids and the other bands first filed their lawsuit when Brian Mulroney was still prime minister, and the nuts and bolts of the case aren’t even close to being heard. Instead, it’s still mired in preliminary matters, such as access to the secret documents and a looming challenge by the Crown alleging the bands waited too long to file their lawsuit and missed the statute of limitations.
The debate over the documents comes just days after an Ontario court forced Canada to turn over records related to abuses that occurred at
St. Anne’s residential school. Though Ottawa has been criticized for hoarding millions of other residential schools documents, the federal government said it would comply with the Ontario court ruling and not appeal.
In a mysterious twist to the Manitoba case, the bands already, somehow, got hold of three of the four memos and briefing notes years ago when the lawsuit began. That’s how the bands know the records are critical to their case.
Chemawawin Chief Clarence Easter, who was in court Thursday, said Ottawa promised in the 1980s it would be willing to negotiate a settlement if new evidence emerged showing the federal government failed to properly protect the Cree.
“Well, evidence has come to light now, but we’re still not at the table,” said Easter.
If Ottawa agreed to negotiate, the matter could be settled in three to five years, Easter said. Otherwise, litigation could drag on exponentially longer and as far as the Supreme Court of Canada.
» Winnipeg Free Press
Republished from the Brandon Sun print edition January 18, 2014