Thu Aug 30, 12:07 PM
By Jim Brown
Canadian Press
OTTAWA (CP) - The country's top court is stepping into a long-running dispute between two Alberta aboriginal groups and the federal government over millions in oil and gas revenues.
In a decision released Thursday, the Supreme Court of Canada granted permission for the Samson Cree and the Ermineskin band to appeal lower-court decisions that went against them.
"It means that everything is open again," said James O'Reilly, the Montreal-based lawyer for the Samson people. "We're now into overtime in the Stanley Cup final."
The native groups have been in court since 1989 arguing that federal authorities mismanaged oil and gas royalties the government held in trust for them. With combined legal costs for all sides estimated at well over $100 million, it's one of the longest and most costly civil actions in Canadian history.
The ultimate stakes are higher still, with the two native groups on the Hobbema reserve, near Red Deer, claiming they're owed more than $1 billion in lost investment revenues and damages.
Ottawa finally agreed last year to transfer $350 million to an independent trust fund to be controlled by the Samson Cree Nation.
But separate claims for more than $650 million in damages were rejected by both the trial and appeal divisions of Federal Court. In addition, there is other litigation in the works over how money was used for social and economic programs and distributed to band members.
The Supreme Court, following its usual practice in granting leave to appeal, made no comment on the details of the case. No date has been set for a full hearing on the merits of the claims, and a final judgment is still far off.
Ottawa has made overtures about an out-of-court settlement in the past, but the offers were rejected by the native groups as insufficient. It's unlikely there will be any more talks now that the case has reached the top court, said O'Reilly.
In any event, he added, "this was not done to get negotiating power. My clients have fought the case on principle."
Beyond the hefty dollar amounts, there are potentially far-reaching legal issues at stake, including aboriginal guarantees under the Charter of Rights, interpretation of the Indian Act, treaty law, and the federal government's special trust relationship with native people.
The impact could eventually be felt by some 600 First Nations across Canada whose financial affairs have been or are currently managed by Ottawa.
"It has extremely wide repercussions for the administration by the federal government of any asset of Indian people," said O'Reilly. "The main question is whether they have meaningful rights or not."
Also at issue is the precise meaning of Section 15 of the Charter of Rights, which guarantees equal treatment and non-discrimination on the basis of racial or ethnic origin. The Federal Court of Appeal was split on whether that section protects only individual rights or includes the collective rights of native groups.
Another contentious point in the lower courts was the weight to be attached to testimony from native elders on their traditional, often unwritten understanding of treaty agreements that often date from the 19th century.
The Supreme Court has signalled in the past that such evidence is legally acceptable in certain circumstances, but the trial judge in the Samson and Ermineskin disputes discounted much of the testimony of native elders, a decision that outraged many band members.