Nations, Canada run afoul of Manitoba as province litigates

Officials with four Manitoba First Nations are tight-lipped after learning the province is undertaking litigation against them.

“It’s not our responsibility. We never flooded the land,” said Chief Garnet Woodhouse of the Pinaymootang First Nation, referring to actions that took place that led to massive flooding in 2011.

In statements of defence filed by the Manitoba government in the Court of Queen’s Bench in Winnipeg on April 17, as well as third party claims against the First Nations of Pinaymootang, Dauphin River, Lake St. Martin and Little Saskatchewan along with the federal government, the province stated that “if the plaintiffs have suffered loss or damage… such loss or damage was caused wholly or in part by the negligence” of the First Nation or the federal government.

The province has taken legal action against the same four First Nations which filed a $950-million potential class-action lawsuit in 2012 on behalf of its residence claiming the government was negligent in its operation of a number of water-control structures, including the Shellmouth Dam, the Portage Diversion and the Fairford water control structures, causing excessive flooding in their reserves as a result. The First Nations are located in Treaty 2 territory north of Winnipeg between lakes Winnipeg and Manitoba.

“There’s been a lot of problems from when the water control was built from that point on to now,” said Woodhouse.

In its third party claim, the government states the First Nations “constructed housing or infrastructure on its reserve that it knew or ought to have known was prone to flooding” and “failed to take adequate mitigation measures to protect its reserves.”

Rosalind Pruden, councillor with Little Saskatchewan First Nation, says she is surprised at the province’s decision to take legal action although she would not comment further or elaborate on legal action undertaken by Little Saskatchewan First Nation.

About 350 members are still displaced, she says, living in neighbouring communities such as Winnipeg, Gimli, and Brandon, or with family members. Chief Hector Shorting is one of those flood-evacuees.

“Where are they going to come home to? We don’t have homes for them,” said Pruden. “We’re still working on it.”

“We can’t comment because all of this is before the courts on both sides,” said Gerald McIvor, political assistant for the Southern Chiefs Organization.

However, McIvor did point to a comment Grand Chief Murray Clearsky made in a CBC interview, in which Clearsky referred to the provincial government’s action as “a bunch of BS to me.”
Clearsky added, “It might be a way out for the province as a stalling tactic, but I don’t think it’ll stop there. I think it’ll go beyond that. I think the communities are going to team up and defend themselves.”

In the same CBC interview, Grand Chief Derek Nepinak of the Assembly of Manitoba Chiefs said he saw the government’s action as a “poorly thought-out legal strategy, and certainly a poorly delivered strategy.”

Nepinak added that the province may claim the homes were poorly situated but that simply points to the larger issue of the suitability of the reserves lands First Nations were given.

The province’s claim states that the “reserve lands … are vested in Canada and administered by Canada” and that “Canada had a duty to act in the best interests of the (four First Nations) to whom Canada owed a fiduciary obligation, and that Manitoba expected and relied on Canada to do so.”