Mishkeegogamang First Nation now in court against Canada and Ontario over land claims
James Bay native band alleges century of neglect in massive, multi-million lawsuit
Peter Edwards - May 16 2011
More than a century ago, a blind Ojibway Chief from northwestern Ontario named Missabay marked an “X” on a treaty written in English, a language he did not speak.
The Chief didn’t have a lawyer acting for him or his people from the Mishkeegogamang First Nation and played no part in negotiating the treaty. It was in his hands for less than a day before he signed it. Before the government officials left his remote community, he was quoted as saying he was confident they would be fair: “We know that you are good men sent by our great father the King to bring us help and strength in our weakness.”
Now James Bay Treaty No. 9 is the focus of a historic, multi-million dollar lawsuit called “Mishkeegogamang First Nation v. The Attorney General of Canada and Her Majesty the Queen in Right of Ontario” that began Monday in a University Ave. courtroom.
There were 15 lawyers in the courtroom before Mr. Justice Arthur Gans, representing the Mishkeegogamang people (who sometimes call themselves “Mish”), the federal government, the province of Ontario, Ontario Power Generation and Ontario Electricity Power Corp.
There are only 900 on-reserve and 500 off-reserve Mish people, but the amount of their traditional land that’s involved is enormous — nearly 355,000 square kilometres in northwestern Ontario and the former Northwest Territories.
The case is already historic because this is believed to be the first time a land claims lawsuit against the province of Ontario has actually gone to trial alongside the federal government.
Dollar figures for damages and reparations cited are in the hundreds of millions — even more than $1 billion.
It’s a far cry from back in 1905, when Chief Missabay heard his people would receive $4 each, every year, forever, along with a community school and a patch of land for each family of five.
Mishkeegogamang councillor David Masakeyash said in an interview Monday that the legal fight — which has already taken more than a dozen years in pretrial filings and arguments — is “for our forefathers and our generations to come.”
“It’s about getting justice,” said Masakeyash, who is attending the trial with a dozen community members.
When Chief Missabay put his “X” on the treaty, his people lived a nomadic lifestyle, eating moose, wildfowl, fish and whatever else the bush provided.
Today, there are no high schools for the Mish people, who live on two reserves and in tiny communities like Poplar Heights, Sandy Road, Doghole Bay, Rat Rapids, Cedar Rapids and Ten Houses. Students hoping to attend high school often travel to faraway Thunder Bay.
Mish residents are wracked by all manner of social ills, including high levels of fetal alcohol syndrome, depression and unemployment.
“Every day, we live with social injustices . . . that were done by Canada and Ontario,” Mishkeegogamang Chief Connie Gray-Mackay said in an interview. “Our ancestors did not sign us to administer poverty to our people.”
In court on Monday, E. Anthony Ross, a lawyer for the Mish people, argued that the provincial and federal governments didn’t honour their side of the deal, first moving Chief Missabay’s people from the lands they had expected, and then permitting the flooding of the lands for hydro projects.
Many Mish people shifted from being nomadic hunters to being dependent upon government programs and seasonal wage-earning jobs for survival. The Mish people argue that they didn’t even get a copy of the treaty.
Lawyers for the Mish note that by the mid 1930s, the governments were promoting hydro dams in the area. The dams buried traditional Mish lands in water, along with homes, a community centre and sacred sites and burial grounds. Soon, elders told of bones washing up on shore, Councillor Masakeyash said.
The suit alleges the Mish people are owed “compensation from Canada for breach of fiduciary duties resulting in trespass, nuisance, wrongful deprivation of riparian rights, permitting profiteering . . . in contravention of treaty obligations.”
Opening statements from the various legal teams are expected to take well into next week. The trial is expected to last until November.
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Tiny Native band waited too long to file lawsuit: Ottawa
Peter Edwards - May 17 2011
The tiny Ojibway Mishkeegogamang First Nation should have gone to court long ago if they thought a 1905 treaty signed by a blind chief who didn't speak English was invalid, according to lawyers for the federal government.
“The plaintiffs are guilty of prolonged, inordinate and inexcusable delay in commencing their action and seeking the relief claimed..,” a court paper filed by Ottawa states in the lawsuit by the Mishkeegogamang First Nation that is currently on trial before Justice Arthur Gans in a University Ave. courtroom.
The federal legal filing also notes that the Mishkeegogamang First Nation was already compensated $17,250,000 in 1998 by Ontario Hydro for damages from flooding to their traditional lands.
The court filing does not mention over what time period the money would be paid.
“This defendant did not cause, directly or indirectly, any of the alleged losses sustained by the plaintiffs and therefore cannot be held liable for these,” the federal court paper continues.
The provincial government, which is also named in the lawsuit, argue in court papers that matters relating to First Nations reserves are a federal responsibility.
“The ability to create Indian Reserves both within and outside of the province of Ontario is a matter within the exclusive jurisdiction and authority of Canada,” the province's statement of defence states.
A spokesperson for Ontario Power Generation, which is also named in the lawsuit, said in an interview that the power corporation already reached an agreement with the Mishkeegogamang First Nation that includes a formal apology and an agreement that Ontario Power can continue operating in the area.
The lawsuit sends echoes across the country, a legal expert says.
“It might have implications for many treaties signed in the late 19th and early 20th century,” Sébastien Grammond, a civil law professor at the University of Ottawa, said in an interview. “It could have far-reaching consequences.”
The tiny First Nation — with only 900 people on-reserve and another 500 off-reserve — argues Ottawa has neglected its responsibilities for more than a century, by not giving it the lands it had requested and then allowing hydro development to flood its lands.