George Gordon sues provincial, federal governments

The George Gordon First Nation is accusing the federal and provincial governments of not negotiating in good faith during the recent Treaty Land Entitlement Settlement Agreement process.

“While the George Gordon First Nation was at the negotiating table with Canada and Saskatchewan, and immediately following the conclusion of the George Gordon Treaty Land Entitlement Settlement, entitling them to acquire reserve lands and minerals, the Saskatchewan government proceeded to dispose of 100 per cent of all of the potash resources rights for exploration and development to companies in and around the George Gordon reserve such that, in effect, there is no valuable land left for selection,” said Jeffrey R. W. Rath, an Alberta-based lawyer, who is representing the First Nation.

“Once Saskatchewan in effect disposed of, by lease, the underlying crown mineral title, it obviously changes the economics of surface ownership such that these lands, that would have been available to George Gordon at $500 or $600 an acre aren’t available at all now,” said Rath.
George Gordon First Nation is now suing both levels of government for $10 billion in loss of potash revenue. That figure, said Rath, was ascertained by expert economists.

“The pleading is $10 billion or such other amount as may be proven at trial,” said Rath, who noted that George Gordon Chief Glen Pratt believes that dollar tag is low. “In trial we would succeed in proving that the damage is even greater than that.”

In a written statement, Pratt said, “As a people we are sick and tired of being cheated out of the wealth that rightly belongs to us under our treaty and Canadian and international law.”

Rath contends that the provincial government needed to consult with the George Gordon First Nation before disposing the mineral rights.

“What the Government of Saskatchewan forgets is constitutionally, and this is also underpinning the claim, under the (Natural Resources Transfer Agreement), they didn’t get absolute control of lands and resources in the province of Saskatchewan. What they got was the ability to ‘manage these lands subject to pre-existing trusts and agreements’ and the courts have made it clear …. that the treaties form pre-existing trusts and agreements,” said Rath.

However, the Saskatchewan government doesn’t see it that way.

“We’re confident in the province’s constitutional authority to be able to manage and control the natural resources of the province,” said Linsay Rabyj, communications director at Saskatchewan Justice.

Under the NRTA, brought into force in 1930, Canada transferred to Saskatchewan all Crown lands, minerals and other natural resources within the province, subject to a number of conditions, including that Saskatchewan provide unoccupied Crown lands if Canada needs land in order to fulfil its obligations under Treaties.
While the resources may be an issue with the province, Rath said the federal government is being included in the law suit because the George Gordon First Nation TLE, which was signed in 2008, doesn’t provide enough land for band members. While negotiations with George Gordon were ongoing, the federal government passed Bill C3 in response to Sharon McIvor’s case, which allowed second generation Indians to claim status. Including this additional membership increases George Gordon’s population by one-quarter to one-third, said Rath.

“The second generation cut off people weren’t counted as part of the equity formula. Lands for these people remain outstanding business under the equity formula,” he said.

Rath believes most First Nations in Saskatchewan are in a similar position as George Gordon.

“The Government of Saskatchewan is so arrogant in terms of how they treat First Nations people and First Nations rights,” he said.

The next step in the lawsuit is for both the provincial and federal governments to file statements of defence.
“Our position will be outlined in our Statement of Defence, which will be filed with the court in due course,” said Michelle Perron, spokesperson for Aboriginal Affairs and Northern Development Canada, in an email response to Windspeaker. “As this is a legal matter it would be inappropriate to comment further.

“We will be defending this lawsuit vigourously,” said Rabyj.

Rath said the time frame for cases of this kind to make it to court is anywhere from two to five years.

“At the end of the day whether George Gordon ends up owning and operating a potash mine or the Government of Saskatchewan has to stroke a cheque in the billions of dollars for what they did, it doesn’t matter to us. But ultimately, that’s what we’re dealing with,” said Rath.