In a major victory for Indigenous Peoples whose lands were taken away by the government, the Supreme Court of Canada has clarified how compensation should be assessed when the Crown breaches its fiduciary duty to a First Nation.
The Southwind decision involved the Lac Seul First Nation in northern Ontario, whose reserve land was flooded for a hydroelectricity project that began in the 1920s. About 17% of the reserve land is now permanently flooded, including the Nation’s prime waterfront land. Homes, wild rice fields, gardens, haylands and gravesites were destroyed, and fishing, hunting and trapping were all impacted. Only a token amount of compensation was paid to the Lac Seul First Nation, over a decade after the flooding took place.
The trial judge held that the government would have expropriated the Lac Seul First Nation’s reserve land for the hydroelectric project, and that the Nation was only entitled to receive a modest per-acre amount, similar to what a private landowner would receive if their land was expropriated for a highway project. The Supreme Court of Canada held that expropriation valuation was a minimum requirement, not a maximum, and that compensation should be based on the highest and best use of the land, which in this case was as water storage for hydroelectric development. The Crown must always consider the nature of the First Nation’s interest in the affected land and the impact of any proposed transaction on the First Nation.
Catherine Boies Parker, Q.C., Mark Underhill, John Trueman and Caroline North intervened in the Southwind appeal on behalf of our client, the Chemawawin Cree Nation of Manitoba, whose own lands were completely flooded in the 1960s for hydroelectric development.