First Nations tribunal win corrects 75-year-old mistake by Jonny Wakefield, November 9, 2014, Alaska Highway News
The Blueberry River and Doig River First Nations have won a 75-year-old legal battle over access to oil and gas beneath their reserves.
On Nov. 5, the Specific Claims Tribunal found the Canadian government breached its obligations to the First Nations when it botched a 1948 land swap aimed at making way for returning World War Two veterans.
Canada’s failure to secure mineral rights for the bands—as well as the fact it didn’t tell them about the mistake for a quarter century—left them without access to the wealth below their feet and threatened their way of life.
“This claim addressed the final link in a chain of events that happened nearly 75 years ago, inspired decades of litigation and established important legal precedent in the legal domain of Crown-Aboriginal relations,” Justice W.L. Whalen writes in the decision.
“The facts of the case are among the more considered in Canadian jurisprudence. The issues before the Tribunal focus on the final chapters of that story.”
“For our nation, it’s really a big win. The minerals should have come with the band from our old (reserve) lands,” said Doig River Chief Norman Davis. “It was good news for the nation.”
While the ruling doesn’t transfer oil and gas rights to the nations, it does entitle them to compensation. The tribunal is able to award claims up to $150 million, though an exact amount has not been decided upon.
The case goes back to 1900 and the signing of Treaty 8, which promised reserve land to the Fort St. John Beaver Band and other Dunne-za Cree nations (Doig and Blueberry were members of the Beaver Band, but became separate nations in 1977).
According to the Nov. 5 ruling, the band was given 18,168 acres of prime agricultural land in 1916. The land was located close to growing non-aboriginal settlements and was called the Montney Reserve.
But farmland was only so useful to the band members, who were semi-nomadic hunters and trappers. Beaver Band members spent little time on reserve, instead “preferring to pursue their traditional ways in the more isolated wilderness to the north of the reserve.”
By 1945, the band and the federal government were at a crossroads. Canada had promised land and housing to returning World War Two veterans, and in search of quality land, the Director of the Veterans’ Land Act (DVLA) contacted the Department of Indian Affairs about the Montney Reserve. In September 1945, Indian Affairs and the Beaver Band agreed to surrender the reserve in exchange for $70,000 and a promise to find new reserve land, and in 1948 the Montney reserve was handed over.
Indian Affairs, meanwhile, purchased new reserve lands for the First Nation from the province. The lands cost $4,932.50, were one-third the size of the Montney Reserve, and were bought with the proceeds from the Montney Reserve sale. All this resurfaced with the ’70s oil boom.
In 1976, petroleum was discovered on the former Montney Reserve lands. Had the First Nations still held the lands and the mineral rights, it would have been a windfall. Instead, the federal government had agreed to sell or lease the Montney Reserve mineral rights in 1940. In 1948, “by means which to this day remain the subject of debate,” the ruling states, the mineral rights were transferred to the DVLA and the land’s new owners. The discovery of oil made a handful of veterans and an exploration company rich.
In 1977, the bands discovered their new lands hadn’t come with subsurface rights. The right to drill for oil and gas, it turned out, had belonged Texaco Exploration Company since 1950.
Canada thought it had picked up the mineral rights for the Beaver Band in the ‘40s, but hadn’t done its homework. The province, by law, held onto the subsurface rights on any Crown land sold, even to the federal government.
“Through failure to investigate, Canada did not appreciate this at the time,” Whalen writes in the ruling. Even though the government discovered its mistake in 1952, the nations didn’t find out what happened for 25 years, and only then when a lawyer want through the titles on both the Montney and new reserves.
“This was how the bands first discovered that subsurface rights in the Montney reserve had been sold,” Whalen writes. “The dual revelations (about the Montney rights and the subsurface rights on the new reserves) occurred some 33 years after the transfer and approximately 25 years after Canada discovered what had happened. There is no evidence that it informed or consulted the band in any way.”
Blueberry River launched a lawsuit on the surrender of the Montney Reserve mineral rights in 1977, which made its way to the Supreme Court of Canada and resulted in a $147 million settlement for lost revenues. In the latest case, the bands argued the Crown failed in its fiduciary duty under the Indian Act to obtain subsurface rights in the reserve swap. Federal government lawyers countered that those duties “did not include an obligation to obtain subsurface rights.”
The claims go beyond lost income.
The ruling notes that since the nations did not control the fossil fuels beneath them, they had little say in the ensuing resource development. When the bands OK’d the new reserves, they did so with trapping, hunting and growing hay for horses in mind. Oil and gas disrupted that.
“How much hunting, trapping and haying could be done if oil or other kinds of mining operations were active and moving around the reserves?” Whalen notes. “None of this is consistent with the band’s use of the land.”
For Davis, the latest ruling corrects a 75-year-old mistake.
“Hearing back from the elders, they mention how come the mineral rights didn’t come over with the band,” said Davis. “There was lots of talk in the past, even a few years back. (Mineral rights) should have come with the lands.”
Many congratulations to Chief Norman Davis and Chief Marvin Yahey and their councils and the team of lawyers who finally extracted a federal government ruling about this long-overdue rip-off. If memory serves, I think some drilling companies were also found guilty of sidling up to the boundaries of the Doig Reserve and angling their pipes underground and across that very boundary, not content with slurping up the abundant Montney field for decades. Treaty 8 should be respected in the highest court in this country, as far as Site C, fracking quakes, water table pollution and other foul practices quite unknown when Treaty 8 was signed in good faith in 1900. I hope the Doig and Blueberry Nations get a whopping compensation package.