In 1989, breach of treaty and trust legal proceedings were instituted in the Federal Court
of Canada by the Samson Cree Nation and its members against the Federal Government. The
legal proceedings seek to have the Federal Government (including the Department of Indian
Affairs) declared in breach of its treaty, trust, fiduciary and other obligations and
duties to the Samson Cree Nation, more specifically, with respect to the management and
supervision of the oil and gas relating to the Pigeon Lake Reserve, and with respect to
the management of the oil and gas royalty moneys received by the Federal Government in
trust for the Samson Cree Nation. An amount of $1.385 billion, (as well as an accounting
and interest) in damages is claimed in the Samson Statement of Claim for the loss of
revenue and other losses suffered as a result of the Federal Government's breaches of
treaty, trust, fiduciary obligations and other duties. The claims include breach of treaty
and trust obligations of the Federal Government to fund programs and services for Samson.
The legal proceedings also ask for a declaration that all moneys entrusted to the Federal
Government for the Samson Cree Nation (of approximately $360 million) are subject to a
express trust in favour of the Samson Cree Nation and must be transferred to the
ownership, management and control of the Samson Cree Nation in trust. The true history and
effect, as understood by the Elders of Treaty no. 6 and the precedence of treaties over
the Indian Act are important parts of these proceedings.
The Federal Government filed its Defence to the Samson Statement of Claim and Amended
Statement of Claim denying all liability. The legal action by Samson is being actively
pursued. A tremendous amount of information and documentation has been obtained and
reviewed by the lawyers for Samson. The legal action raises many questions concerning the
Government's conduct and mismanagement over the past 60 years while dealing with Samson's
share of oil and gas and royalty moneys from production on the Pigeon Lake Reserve.
Certain important interim judgments from the Federal Court and Federal Court of Appeal on
various legal issues have been favourable to the Samson Cree Nation.
To date, there has been 372 days of Examinations for Discovery in these legal proceedings
on various issues regarding oil and gas matters, royalty moneys and programs and services.
Lawyers for Samson have examined government representatives under oath for an approximate
total of 266 days. Lawyers for the Government have examined Samson representatives under
oath for an approximate total of 72 days.
On May 1, 2000, the trial began at the Federal Court of Canada in Calgary. Between June 5
and 23, 2000, the Federal Court of Canada held part of the trial on the Samson Reserve.
Samson took the position that the elders should be heard on their own land and in their
own language. This marked the first time the Federal Court of Canada held part of a trial
on an Indian Reserve.
During Phase I of the trial 35 witnesses for Samson appeared to give evidence. The
majority of the witnesses were Cree people including Samson people. The purpose of having
had these witnesses testify was to put into the Court record evidence about the Samson
Cree Nation, its people, history, oral history, life before and after the coming of the
white man, traditions, customs, trade, relationships with the Plains Cree Nations and
other First Nations. Native and non-Native experts such as university professors also gave
considerable expert testimony at the trial concerning matters related to the history of
the Plains Cree including Samson, government failure to fulfill treaty obligations,
indigenous law, government policy relating to Aboriginal peoples, linguistic analysis of
Plains Cree, oral history, oral traditions, the Cree understanding of Treaty No. 6 and
related negotiations. Phase I related to historical and treaty issues and had the Court
sitting for an unprecedented 174 days of trial.
Phase II began September 2002 and was in relation to "money management" issues
(INAC paid inferior rate of return on Samson moneys). Samson's "moneys" experts
were very high profile individuals from the Canadian investment and banking sectors. They
all testified that the Crown did not act prudently in relation to the investment of Samson
royalty trust moneys. Evidence for Phase II ended July 20th 2004. Closing arguments were
held November 30 to December 21, 2004. Total number of days of Trial for Phase I and II
was 370 days (4.5 years).
In January 2005, the Federal Court
ruled in favor of Samson to remove the Minister of Indian Affairs as Trustee of Samson's
trust moneys, and for the transfer of all of Samson's trust moneys to an independent Trust
under certain conditions.
After extensive consultations with the
Samson membership, a referendum was held on November 17, 2005 in regard to the proposed
transfer of Samson's trust moneys to an independent trust known as the Kisoniyaminaw
Heritage Trust Fund. The vote by the Samson members was affirmative, and the trust money
was transferred on February 1, 2006.
Judgement of Justice Teitelbaum was released on December 2, 2005 dismissing Samson’s
claim. Samson immediately announced a unanimous decision by Chief and Council to appeal
the decision. Notice of Appeal was filed on December 21, 2005.
The Appeal was heard beginning October
16, 2006 for 15 days over 5 weeks in Ottawa. On December 20, 2006 the Federal Court of
Appeal in a split decision ( 2 to 1 ) found in favour of the Crown. Although all
members of the Federal Court of Appeal held that the Crown was a trustee and had fiduciary
obligations, the majority concluded that the Crown had acted "reasonably" while
the dissenting judge, Justice Sexton, was of the view that the Crown's conduct fell far
short of satisfying its duties as a trustee.
The dissenting judge also vindicated
the claim of Samson Cree Nation that they had been subjected to inferior and
discriminatory treatment as trust beneficiaries, because of the Indian Act, in
breach of the Canadian Charter of Rights and Freedoms. Justice Sexton stated:
"Concluding that the Crown has
no duty or power to invest the Indian Moneys would subject Indians, who must deal with the
Crown as their Trustee, to inferior treatment merely because of their Indian status and
membership in an Indian Band. This would appear to constitute discriminatory
treatment on the part of the government in violation of subsection 15(1) of the Charter on
the basis of race, or national or ethic origin."
A positive note of this decision of the
Federal Court of Appeal is that it did not endorse the rejection by the trial judge of the
Plains Cree understanding of Treaty No. 6. To the contrary, the Court of Appeal
directed that the main conclusions of the trial judge regarding Treaty No. 6 and history
are not binding on the judge who will hear other parts of this important case going to the
root of several significant facets of the unique, historical and solemn relationship
between Aboriginal Nations and Canada.
Nonetheless, in a unanimous decision,
Samson Chief and Council decided that the Government of Canada must be held accountable
for the control it assumed over the heritage of present and future Samson generations, for
failing to keep its word to properly protect reserve resources and for hiding behind the
colonial, oppressive and discriminatory Indian Act as an excuse to renege on its
Treaty promises. Leave to appeal to the Supreme Court of Canada was filed.
Leave to Appeal was granted to the
Samson Cree Nation by the Supreme Court of Canada on August 30, 2007. The Supreme
Court also granted with its Order costs in any event of the cause to Samson. By
accepting the case, the Supreme Court recognized that the issues involved were of national
importance.
The Supreme Court of Canada heard oral
submissions from Samson on May 22, 2008 and reserved judgement in the case. A
decision was rendered by the Supreme Court on February 13, 2009 dismissing Samson's and
Ermineskin's claims against the Crown. In summary, the Court allowed the statutory
defense of the Crown even though it acknowledged that a higher rate of return could have
been achieved through investment in either a balanced or fixed income fund.
Samson Creen Nation and its members do
not accept the decision of the Supreme Court. Many members are of the view that if
the case were brought against the Crown by a wealthy non-aboriginal family or a large
corporation, the outcome would have been much different. Samson Cree Nation is
undeterred and will press forward to advance their oil & gas and other claims.
The amounts of damages claimed by the
Samson Cree Nation are very large, but easily justifiable in the context of the amounts
and tremendous value of the natural resources taken from Samson lands.
Phase III is in relation to oil and gas
matters. No judge has yet been assigned to Phase III and no schedule is set.
Recent legal victories by the Blueberry
First Nation against Canada and the Stoney Nation against Pan Canadian Petroleum and
Canada are favourable to the position of Samson in the breach of trust case against Canada
in relation to oil and gas issues.
Further information about Samson's
legal action against Canada is available by contacting Samson Litigation Support Office at
1-800-661-2579 |
