Dignity, $1.4 billion what lawsuit is about

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After 11 years of preparation, a case brought by the Samson and Ermineskin bands against the federal government opened in Federal Court in Calgary April 28. The bands are accusing the federal government of financial mismanagement of their money, including royalties paid on oil and gas extracted from reserve lands. Dating back some 50 years, the total damages being sought by the bands amount to almost $1.4 billion.

It was only fitting that a case which promises to be complex and far-reaching began with a prayer asking the Creator for guidance in resolving complicated issues.

The trial is expected to last more than two years. Justice Max Teitelbaum made it clear at the outset that he is keen to have the trial move as fast as possible with the intent of limiting the costs to both the plaintiffs and the Crown.

With eight lawyers in court for the Samson, four for the Ermineskin and five for the Crown, the case promises to be complex and have far-reaching implications for the relationship between Aboriginal people and the federal government.

"For the Samson Cree, the case is about issues that span the range of time," Samson lawyer James O'Reilly told the court. "We are at a crossroads of time, looking back in time and forward in time to determine who are the Indian people, where they are going and what is their relationship going to be with the Crown."

O'Reilly said the case brought by the bands can be divided into four broad categories: general and historic issues; moneys; oil and gas; and programs and services. Taken together, O'Reilly told the court, these matters will produce a case that "will be a constitutional benchmark."

At the core of the case is Treaty 6, which was signed in 1876. The Samson joined the treaty the following year and, according to O'Reilly, it is critical the court understand the circumstances under which the treaty was signed.

In his opening remarks, O'Reilly stated the treaty has been watered down over the course of the nearly 125 years it has been in effect. The treaty predates the Indian Act. O'Reilly said no mention of the impending legislation was made at treaty time, yet it has come to govern the relationship between Natives and the federal government.

The Samson band is challenging specific sections of the act that O'Reilly characterized as "representing the colonial laws of the 19th century."

O'Reilly argued that the treaty represents the "supreme law" between the Crown and Natives because both parties agreed to it, as opposed to the Indian Act, which "was an attempt to assert power over Indian people."

The end result is that, in the eyes of the Samson and Ermineskin, "treaty rights take precedence over the Indian Act, the Indian Oil and Gas Act and other legislation."

The Crown disputes these interpretations. Crown attorney Alan Macleod told reporters the government view is that the issues surrounding oil and gas revenues ". . . do not engage the treaty. The government has the right to set prices and create laws that have a general application and seek to balance the interests of the whole country."

In an attempt to refute this argument, O'Reilly intends to take the court into "a time capsule to travel back to 1876," and examine the circumstances surrounding the signing of the treaty. This will involve the testimony of historians and will reference historical documents, including a North West Mounted Police map from 1888 and a map from the Palliser Expedition dated 1858.

"It was important then and it is more important now," O'Reilly said of the treaty. "It is not just a parchment. It is a relationship, a coming together, a meeting of minds between non-Aboriginal and Aboriginal people. Without the treaty, there would be no Canada today. Aboriginal people are an integral part of Confederation."

The court will move to the Samson reserve for three weeks in June to hear the testimony of Elders concerning what their ancestors said about the circumstances surrounding the treaty ad what the bands understood the nature of the agreement to be.

O''Reilly stated he will argue that the treaty obligates the federal government to act with honor and respect for the Indians and that it has failed to do so. He cited the fact that no schools had been built on the Samson reserve before 1992 despite provisions in the treaty that the government would build and maintain schools on reserves.

Although he acknowledged that the money claimed by the bands was substantial, O'Reilly told the court more important issues were at stake.

"The money is important, but it's not what this is about. The Samson would take respect for the treaty over the money. If they only receive the money, it will be a loss. This case seeks to restore the dignity of Indian people."