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| Rob Louie |
Questions continue to beset these land claim settlements as some worry that it could extinguish treaty rights. Indigenous TikTok sensations have also weighed in on the land claim settlements in Saskatchewan. It is easy to find dialectic discourse on land claim settlements and band council memes on social media, too.
Most of the attention is on the Agriculture Benefit settlements, otherwise known colloquially as “Cows and Plows.” The average Cows and Plows financial settlement is nine figures. Once the Crown admits liability, the only thing left is to negotiate the damages and ratify the settlement.
It is here that the plot thickens.
Chief and council claim that everything is above board, and they are acting in the best interests of the band. Many band councils have made prudent investments that have seen high returns, which translates to prosperity for their people. However, there are also allegations on the down low by band members of chief and council acquiring questionable bank loans to pursue settlement negotiations, lack of inclusion in the process leading up to the ratification of the cash compensation, chief and councilors’ perceived personal interests in the compensation funds, and of trust fund monies of minors going missing. In some Saskatchewan First Nations, band members’ trust in their leadership appears to be dying a death by a thousand cuts.
These allegations are heading to court.
The Band Members Alliance and Advocacy Association of Canada (“BMAAAC” pronounced “bee mack”) is helping Saskatchewan band members get access to justice. BMAAAC has formed a working relationship with law firms in B.C., Alberta, Saskatchewan and Ontario. Since its inception in 2019, BMAAAC has been involved in numerous court cases, including appearing as an intervenor at the Supreme Court of Canada last year in Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10. This case dealt with the question of whether the Canadian Charter of Rights and Freedoms applied to an election rule enacted by a self-governing First Nation in the Yukon. It also addressed whether that rule unjustifiably infringed a member’s right to equality under s. 15 of the Charter.
With BMAAAC’s assistance, and with legal representation from the law firm of Osler, Hoskin & Harcourt LLP, a contingent of Saskatchewan band members have each filed notices of application in the federal court challenging their respective band council’s authority to unilaterally fix low per capita distributions to the settlement funds, which was a specific land claim for the wrongful taking of Indian Reserve lands by the Government of Canada. The legal authority to determine a per capita distribution is at the heart of the case.
First to file in the federal court is Mariah Bigsky from Muskowekwan First Nation near Fort Qu’appelle, Sask. Next was Marlon Horse from Thunderchild First Nation near North Battleford, Sask. Also eager to follow suit are members from Saulteaux First Nation, Mosquito Lean Man Grizzly Bear’s Head First Nation, Piapot First Nation and Pelican Lake First Nation.
Both Bigsky and Horse are each seeking 100 per cent per capita distributions.
Bigsky lived her life on the Muskowekwan Reserve but now resides in B.C. Marlon Horse from Thunderchild First Nation lives in Saskatoon and is a voice for the off-reserve members. “With settlement money coming in, we have over 75 per cent of our members living off reserve and who are considered urban,” said Horse. He added, “We are struggling, like many Canadians, with the cost of living and inflation. Whether we reside on or off reserve, we all need to have a say when it comes to per capita distributions and band money generally.”
The leading case on band council fiduciary duty over band money is Lower Kootenay Indian Band v. Lower Kootenay Indian Band, 2015 BCCA 247. While this case pertains to a chief and council skimming off the top of a mere $125,000 land claim settlement in 2009, the court found that the band council in Lower Kootenay Indian Band breached their fiduciary duty. The court is made it clear that Indigenous leaders not only be — but also be seen to be — above reproach. They are, after all, trusted gatekeepers of band money.
The court cases emanating from Muskowekwan First Nation and Thunderchild First Nation will not only have precedential value but it will further develop Aboriginal Law with respect to First Nation governance, fiduciary duty, financial disclosure, procedural fairness, s. 2(b) of the Charter, s. 2(3) of the Indian Act and s. 35 jurisprudence.
Although this tug of war between band council and band membership has just begun, justice will be done though the heavens may fall.
Rob Louie is a constitutional scholar specializing in constitutional law and president of the Band Members Alliance and Advocacy Association of Canada.
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