Editor's Note: A correction has been issued to this story. A motion to stop the July 15 vote was not actually filed in federal court at the time this story was published, in spite of information provided to the Sun. For the full correct, please see the bottom of this story.
Band members with Waywayseecappo First Nation have filed a court injunction to stop the band’s chief and council from holding a historic vote Monday, July 15, regarding a land-settlement agreement between Canada and the First Nation worth hundreds of millions of dollars.
Eight band members spoke to the Sun last week voicing concerns that the process leading up to the vote has lacked transparency and accountability from their chief and council. Six members were willing to go on record with their names.
Eileen Clearsky filed the injunction Thursday on behalf of herself and others via the Saskatchewan Aboriginal law group Stonechild & Racine.
The injunction letter titled "Eileen Clearsky (and others) v. Waywayseecappo Injunctive relieve for the 1881 Surrender Ratification Vote Monday July 15/19" was filed July 11 citing legal issues to be brought before the Federal Court of Canada in regards to the referendum vote.
The Sun was unable to confirm if the injunction will be able to delay the vote.
The Waywayseecappo First Nation Treaty Four—1874 Referendum vote comes after a final information meeting was held in Waywayseecappo last Monday, July 8.
The vote is to decide whether band members will accept a $287-million settlement and commitment to an additional reserve creation of 21,013 acres, as well as the resulting trust fund that would be created to hold the money.
There are a total of 2,818 registered band members as of June 2019 based on the Indigenous and Northern Affairs Canada website and Statistics Canada. Each member will receive an initial $2,500 payout, followed by interest payments of no less than $500 from a settlement trust for at least the next five years.
Based on the $287 million promised as part of the settlement, approximately $15 million will be handed out to band members, and about $12.5 million has been earmarked for the claims costs, leaving approximately $260 million in the trust.
The Sun obtained a series of documents from multiple band members that detail the land settlement, trust agreement and voting information.
Band members are getting together in an attempt to sort out their problems with the settlement process, Clearsky said, but they are running out of time to get the information out there.
Clearsky hopes to see the process halted to ensure voters are informed on all the issues. "The biggest challenge that I see for our community members is they do not understand what they are signing," Clearsky said. She asserts that many members only hear what chief and council are telling them as opposed to digesting the entire voter package.
The trust-fund agreement is the most significant issue for most members, she said, and they are trying to stop the referendum so they can vote first on the land settlement and then hold a later vote on the creation of a trust based on the needs and suggestions of band members.
The injunction letter released by Stonechild & Racine details several concerns, including that off-band reserve members have not received their voter packages, chief and council have failed to answer questions in regards to the upcoming vote, and an allegation of the chief promising money in return for voting "yes" in the ratification vote and allegations of suppressing information.
A key point of contention in the letter is the fact that the vote has combined three pivotal questions regarding the use and control of the money.
Band members are being asked to answer three questions as part of the community referendum today:
"As a voter of the First Nation do you:
• agree to all the terms and conditions of the 1881 Surrender Specific Claim Settlement Agreement initialled by the negotiators of the First Nation and Canada, which settles and releases the 1881 Surrender Specific Claim, and the Trust Agreement
• assent to the absolute surrender of all rights and interests in the Surrendered Lands in accordance with sections 38 and 39 of the Indian Act; and
• authorize and direct the Council of the First Nation to sign all documents and do everything necessary to give effect to the Surrender Specific Claim Settlement Agreement, the absolute surrender, and the Trust Agreement?"
Waywayseecappo Chief Murray Clearsky was contacted by The Brandon Sun several times seeking comment.
Chief Clearsky told the Sun on July 8 that the newspaper was not allowed to attend a final information meeting that was held the same day, as it was a closed process. On Friday, the chief said he will speak to the settlement referendum when it is ready.
"I’ll discuss it when the government is sitting at the same table," he said. "It will be a bigger story then than it will be today."
Clearsky ended the second interview before the Sun was able to ask questions about the allegations surrounding the vote. The Sun again reached out to Chief Clearsky on Saturday to question him about allegations as outlined in the court injunction document. The chief again questioned who was raising the concerns and asked what their concerns were. The Sun shared the allegations listed in the story, and he responded that "people are just never satisfied, that’s all."
Though he initially agreed to another interview to be held on Sunday to speak to the allegations, he instead sent a faxed letter dated July 14 in response. The letter is signed by Chief Clearsky and council members Tim Cloud, Melville Wabash, Anthony Longclaw and Joe Gambler. Councillors Travis Cloud and Chantel Wilson did not sign the letter.
It states that chief and council have made "extensive outreach" to band members across the country about the claim, visiting seven cities in Western Canada multiple times to share information.
Chief Clearsky was contacted again after receiving that fax and said that after speaking with his council Sunday morning, he would "leave it at that."
The referendum and ratification vote will be held today from 9 a.m. to 8 p.m. at the Waywayseecappo First Nation arena complex/bingo hall. Off-reserve band members have also been given the opportunity to mail in their ballots.
Reading the documents associated with the settlement, Eileen Clearsky said in her opinion it seems it has nothing to do with benefiting band membership and is instead designed to benefit chief and council. However the letter sent to the Sun Sunday from Chief Clearsky states that the settlement will benefit the community both now and in the future. The benefits to council were not addressed.
"It’s really disappointing, because this land thing could have genuinely been, and it could be, something that could really help people — It could have been a big break for a lot of people," Eileen Clearsky said.
The letter released by Stonechild & Racine states that band member Jeremy Shingoose "is prepared to sign an affidavit stating that at the last information meeting the chief stood up and said: ‘If you vote in favour in the ratification vote, I will give you an additional $2,500.’ Jeremy also stated that he is severely lacking information and does not have a full understanding of the surrender, settlement and trust."
The letter sent to the Sun by Chief Clearsky states that advice was sought from elders and professional advisers, "all in the aim of building the best legacy possible, with any settlement amount we receive. Our elders clearly advised us to meet the needs of today’s members and future generations to come."
Shingoose attended the Waywayseecappo meeting July 8 and said there were approximately 100 people in attendance.
He said he did not find it informative and left feeling more confused than educated. He questioned why there was not more community involvement in regards to the settlement and trust agreement, especially given that they have been working on the settlement for more than 30 years.
"There’s a general sense of hopelessness — this is the accumulation of his (Chief Clearsky’s) legacy; it goes deeper than the land settlement."
The process reflects the "dark reality" of reserve life, Shingoose said, alleging the chief and council control people through housing, school funding, income and jobs, using these as a way to intimidate people to fall in line. On reserve, members are afraid to stand up and speak out because they have been threatened and can face harassment or job loss, he said.
"There’s a lot to lose. ... It’s no different with the land agreement."
In his July 13 interview with the Sun, Chief Clearsky denied these allegations, stating that no one had ever brought these concerns to him. As well, the letter from the chief and council sent to the Sun on Sunday stated that there have been no intimidation tactics used by the Waywayseecappo government, including bribes, threats of job loss of funding cuts. It called the accusations "completely baseless and offensive."
Shingoose wants people to come forward to help block both the vote and chief and council’s access to the trust.
"This is nothing out of the ordinary," he said.
Multiple band members, including Shingoose, cited how Chief Clearsky was removed from the Southern Chiefs Organization at a time when he was accused of the alleged misuse of organization funds.
The Winnipeg Free Press reported in October 2013 Clearsky was removed as leader of the Southern Chiefs Organization due to a spending scandal in which he was accused of taking $10,000 of the organization’s funds for a gambling excursion to a Minnesota casino and amusement park.
Chief Clearsky claimed at the time to have receipts for many of the expenses and told the media that he could justify them. He also insisted the chiefs who opposed him had used the scandal as a pretext to orchestrate his removal.
In a February 2015 Winnipeg Free Press article Chief Clearsky said, "There’s no evidence of me doing anything wrong," in regards to the allegations.
When asked by the Sun to speak to the band member’s concerns over the SCO situation, Chief Clearsky did not address these allegations in his interviews with the Sun, by text or by a statement in the faxed letter.
Multiple band members told the Sun there is a lack of available audits from the Waywayseecappo chief and council, fuelling their concerns over the transparency and accountability in regards to their control of the trust.
No documents have been posted on the First Nations Financial Transparency Act on the Government of Canada website since February 2018. What was posted was the 2016-17 audited consolidation financial statements and Schedule of Remuneration and Expenses.
Band member Quentin Mentuck shares Shingoose’s concerns. He contacted Stonechild & Racine stating he does not fully understand the terms of the settlement and trust and raised the question about potential loans that could be taken out against the $287 million.
While the settlement from the Canadian government could be a boon for the reserve, and he has no problem with it, Mentuck said an issue lies with the trust agreement attached to the settlement.
Band members are being manipulated into voting "yes," Mentuck alleged, adding he spoke with a lawyer and was informed that another vote could take place if band members vote "no" in the referendum.
"Chief and council are really pushing to get the vote in," he said.
The letter sent by chief and council on Sunday states that no bribes have been offered to band members in regards to the vote. However, the letter did not respond to the allegation that Chief Clearsky has been telling band members to vote "yes" in the referendum.
Mentuck said he would like to see a more structured rollout of the settlement, and he does not feel $2,500 per band member is enough. He also raised concerns that money from the settlement allocated to underage members will be given to parents instead of being placed in a separate trust.
"If the ratification vote on (July 15) is successful, settlement monies will be deposited into a trust account to benefit today’s citizens, their children and generations to come," states the letter from Chief Clearsky.
The distrust and discord generated by the upcoming referendum vote left band member Caroline Clearsky disappointed in the entire process.
The upcoming ratification vote has been filled with a lot of uncertainty, name calling, fighting and division between people due to the claim, she said.
"I feel sick; it feels like a curse over our community."
She added there is a feeling of defeat in the community over where the money will go.
"I’m very sad. There’s no good news for them ... the future generations will not see any of this, so that’s why we feel strongly about speaking up."
Indigenous Services Canada was unable to comment on the settlement, saying the agreement is a matter of the First Nation and is a confidential process.
They confirmed the settlement is $287 million and that Canada is not involved in the ratification vote process.
» email@example.com, with files from the Winnipeg Free Press
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HISTORY OF THE CLAIM
The “1881 Surrender of Indian Reserve #62” legal claim was filed against Canada in 1995 in regards to land that was taken away from the Waywayseecappo First Nation by the federal government.
The claim alleges the 1881 surrender of about 50 square kilometres of the reserve was illegal because Canada did not meet the obligation of land surrender to the Crown as stipulated in Section 37 of the 1880 Indian Act. In 2007, the claim was accepted and negotiated under Canada’s Specific Claims Policy.
Negotiations between Waywayseecappo and Canada for compensation took place between 2008 and 2012, but an impasse was reached, largely because Canada argued the First Nation was not entitled to any compensation.
In May 2017, mediator Frank Lacobucci was appointed, and it was decided the parties would attempt to mediate asolution outside the Specific Claims Tribunal system. This was the first claim in the country to go through this process.
In October 2017, Canada acknowledged compensation was due to Waywayseecappo, and in January 2018 a memorandum settlement was signed by the parties to set a methodology of assessing the value of the claim. The final report recommending the terms of settlement from the mediator was released in October 2018 and on Nov. 9, 2018, Waywayseecappo and Canada signed a “memorandum of Mediators Recommended Settlement.”
It was recommended that the First Nation receive a settlement of $275 million, with Canada agreeing to pay an additional $12,561,678 to Waywayseecappo to be put toward the claims cost.
On April 2 this year, Canada made a formal offer of $287,561,678 in compensation. From that point, the First Nation sought input from members to gauge opinion on the settlement.
Before the settlement offer can be paid to the Waywayseecappo First Nation, a settlement agreement and trust agreement to its members must take place and a ratification vote must be held.
According to the 1882 Surrender Specific Claims Settlement Agreement and Trust Agreement Overview Summary, seven information sessions were held across the country where members live.
At least 50 per cent of members who can vote are required to vote in favour for the ratification to pass. If this number is not met, a second vote can be held. A ‘yes’ vote means the band members agree to the final compensation amount and the deposit into a trust for Waywayseecappo members’ benefit.
In the event the vote is ‘no’, Canada has no legal obligation to make any payments toward the claim, the summary states.
The trust will be established with the corporate trustee — the Royal Trust Corporation of Canada — who will take legal responsibility for the management and investment of the money deposited. The trustee is appointed for an initial five-year period, but can be replaced by the council at any time with 90 days’ written notice.
No amendments can be made to the trust agreement within the first 10 years, and no amendments can be made to the beneficiaries of the trust or the duration and termination of the trust.
After 10 years, other terms can be modified if approved by a council resolution and approved through the Waywayseecappo ratification process.
Council will appoint individuals to a community development account audit committee to provide support, as needed, to council on all matters related to the amounts deposited into the trust. The committee is not a separate decision-making body and will have no authority besides what is granted by the council, “from time to time.”
Band members and Waywayseecappo council must receive an accounting of activities and investments in the trust by the trustee.
Waywayseecappo will have the opportunity to pledge 30 per cent of the value of the trust as security toward the procurement of authorized loans and can direct the trustee of the account to do so, states the summary.
Updated on Friday, August 9, 2019 at 10:59 AM CDT: This article contained incorrect information when initially published.
In that article, we reported a letter had been submitted to federal court by the Saskatoon-based law firm Stonechild & Racine on behalf of band member Eileen Clearsky and others. These band members were attempting to stop a community referendum vote on a negotiated $287.6-million settlement with the federal government that took place on Waywayseecappo First Nation.
However, although Stonechild & Racine was retained by Eileen Clearsky for this purpose, it appears that a motion for a court injunction on the vote was never actually filed by the law firm. We have not yet been able to establish whether any court proceeding is still under consideration.
We apologize for any confusion this error may have caused.