Lawyer says INAC holding monies hostage

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When Marilyn Buffalo, a member and employee of Alberta's Samson Cree Nation, revealed that her council had spent, as of February, $50 million in its legal fight against the federal Crown in an oil and gas trust monies lawsuit, some were shocked by the amount.

Samson lawyer James O'Reilly says there's a lot to be shocked about in this case, but that dollar figure is far from being at the top of the list.

For more than a decade, Samson has been trying to gain control of more than $400 million of its own oil and gas money that is being held in trust by the Department of Indian Affairs. Many Samson sources have complained long and hard about the tactics they're facing in this long and complex legal battle.

After seeing the report of what the battle had cost the Samson nation so far, O'Reilly decided the time had come to tell the public just what he's seeing in this case. In a conversation that had a tone that was far from the careful and conservative pronouncements usually uttered by lawyers in the midst of a court battle, the Montreal-based lawyer called it as he sees it during a recent interview with Windspeaker. This is the second installment of that interview. The first was printed in Windspeaker's April edition.

He acknowledged he was on controversial ground several times during the interview. His last words to Windspeaker showed as much.

"Don't worry about printing what I've said," he said. "We've been in this long enough, 14 years. And if [the government lawyers] want to make a move, let them make a move."

He said Samson has been, among other things, the victim of inflexible government policies.

"If you have two cents to your credit as a band in your capital account or $400 million, you're treated exactly the same way. And that's the Indian Act system on the so-called management of the monies. The only thing we can figure out is that the feds are so jealously holding onto the Indian Act that it's damn the consequences," he said.

Samson founded its own financial institution, Peace Hills Trust, to hold and manage its own monies, he said, but Samson hasn't been able to convince Indian Affairs to release the money after more than 20 years.

The Crown argues it can't release the money, because it has trust obligations. But O'Reilly points out that in other cases the Crown argues it isn't a trustee. If the Crown has a fiduciary obligation then it is vulnerable to many legal claims, but it has fought against any suggestion that it is liable for those claims in many court cases. He accused the Crown of being inconsistent and self-serving in its arguments.

"If you label it a land claim settlement, whether it's Indians or Inuit, they can handle their own funds. That's OK. But because these people are under the Indian Act system, they say it's impossible to get [the money] out without changes to the Indian Act. Therefore they say, 'If you guys agree that we can change the Indian Act and if you agree to our self-government legislation or a money management bill, then we can do it. So it becomes an enticement to get people to agree to [the government's] vision of what federal legislation should be for Indians," he said.

Windspeaker asked if O'Reilly was saying the government is holding Samson's money hostage.

"You can quote me on that. There is absolutely no doubt, not a scintilla of a doubt in my mind that they are using it to try to keep the Samson nation in a position of dependency vis-a-vis them. It's an abuse of power so far as I'm concerned. And [the money] is being used as a hostage, literally, and there's no excuse for it," he answered. "It goes against every principle that [the government] espouses supposedly for self-determination and self-government. It goes against the Penner Report. It goes against the Royal Commission reports. It goes against basic horse common sense. All they have to say is 'Give us some assurance that you're going to protect it for future generations and then it's your business. Yor people. Your future. You decide.'

"It's blackmail. You can quote me without any hesitation. I say it's blackmail. The federal position in regard to holding onto Samson monies, it's illegal, it's wrong, it's abominable and, as far as I'm concerned, it's totally unjustified under any theory that you want to put it in-legal, political, moral, ethical. It can't be justified. There's absolutely no excuse for it. That just goes to prove again to me why the federal government is fighting the Samson people, who are one of the few groups that can stand up to them and have stood up to them for 14 years, because they're very concerned that it will cut into their power. Right now they control. They control the whole legislative scheme by being in the position that they can dictate to a lot of First Nations that if they don't toe the line then they'll throw in a third-party manager or you better behave or else. He who pays the piper calls the tune. They can't do that with Samson."

This money is not in a safe somewhere in Ottawa, awaiting the outcome of the trial, said James O'Reilly. It's been used by the government for its own purposes for many years and the low rate of return it has generated while under the government's care is one of several issues being examined in Samson's $1.5 billion lawsuit.

"By the way, you know that [government agencies] borrow that money," he added. "Samson is an involuntary lender. Maybe it doesn't make a huge amount of difference in the short term, but if [the federal government] had to go to the market and borrow that amount of money, they'd be paying a much higher rate. It's a saga in and of itself why they won't transfer that money."

Samson alleges the government provides a higher level of care for its own money than it does for Samson's money.

"They send their own money out," O'Reilly said. "The Canada Pension Investment Board was created because the auditor general and lots of advisors were telling them that they can't just pay interes on this money. It's better managed on the outside by the private investments. So they do that with monies of the Canada Pension Plan and even their own public servants in order to fund the liability so they'll have enough money to pay their pensions."

As for those who might criticize the amount of money Samson is spending on the lawsuit, O'Reilly said they should be asking how much the government is spending.

"Ask yourself why the federal government is spending, and it's spent more than Samson with its lawyers, with justice people, with people who have been behind the scenes, and they have all kinds of resources that don't show up in the public accounts," he added. "So they've spent well over $50 million just trying to beat Samson back instead of coming and saying, 'Well, let's look at this. Are they right in some cases and maybe wrong in some of the cases?' No. They want a fight to the finish, and so far Samson has said we're going to fight them to the finish because if we don't hold the line on the treaty, no one else will and this is maybe the last shot at it."

He accused the government of playing hardball with Samson to maintain a position that is quite different from the feds' public position on First Nation issues.

"Ask yourself why they've dug in. They have a few guys that come in once in a while and say 'Do you want to talk?' To me, it's a lot of posturing. They're not very serious. They want to keep them talking until the will of the people is broken. They know the oil and gas resources are drying up. So [the government] is saying, 'Oh boy, we can still control the capital and we can maybe now start to fool around with the revenue based on the fact that maybe [Native people] are not handling themselves responsibly.' They've kept the levers of control pretty well in their own backyard," he said.

The actions of the Crown reveal there is little or no interest on the Crown's part in legitimate forms of self-government for Aboriginal people, O'Reilly said