Federal Court of Appeal dismisses Samson appeal

Page 9

A significant moment in the legal history of First Nations' people passed with barely any notice over the holiday season. The latest step in the now 17-year-old epic court battle launched in 1989 by two Alberta First Nations came and went with little fanfare.

On Dec. 28, a three-judge Federal Court of Appeal panel dismissed, in a two-to-one ruling, the Samson Cree and Ermineskin Cree First Nations' appeals of trial judge Justice Max Teitelbaum's Nov. 30. 2005 decision.

Justice Teitelbaum, who has now retired, enraged the First Nation plaintiffs when he ruled against virtually all the arguments they put forward during the first two phases of the three phase trial.

It's all part of the mammoth Victor Buffalo versus the Crown legal action brought by the two Alberta First Nations.

The Buffalo case claims the federal government mis-managed hundreds of millions of dollars of reserve oil and gas royalties. Samson has asked for damages in the amount of $1.385 billion, as well as an accounting and interest, for its alleged loss of revenue and other alleged losses suffered as a result of the federal government's breaches of treaty, trust, fiduciary obligations and other duties. The claims also include breach of treaty and trust obligations of the federal government to fund programs and services.

Lawyers for both plaintiffs are now working on applications seeking leave to appeal to the highest court in Canada. They have 60 days from the date the latest decision was handed down to make the application to the Supreme Court of Canada. Because there was a dissenting opinion, there is a good chance the high court will hear the appeal, although it is not certain and the justices of the Supreme Court do not have to explain why they decide to hear a case or why they don't.

All members of the Federal Court of Appeal held that the Crown was a trustee and had fiduciary obligations, but the majority concluded that the Crown had acted "reasonably." However, the dissenting judge, Justice J. Edgar Sexton, was of the view that the Crown's conduct fell short of satisfying its duties as a trustee.

Justice Sexton agreed with Samson Cree Nation claims that they had been subjected to inferior and discriminatory treatment as trust beneficiaries, because of the Indian Act, and that was a breach of Section 15 of the Canadian Charter of Rights and Freedoms.

"Concluding that the Crown has no duty or power to invest the Indian moneys would subject Indians, who must deal with the Crown as their trustee, to inferior treatment merely because of their Indian status and membership in an Indian band," Sexton wrote. "This would appear to constitute discriminatory treatment on the part of the government in violation of subsection 15(1) of the Charter on the basis of race, or national or ethic origin."

First Nation sources also see it as "a positive note" that the appellate court decision did not endorse the rejection by the trial judge of the Plains Cree understanding of Treaty 6. In fact, the court of appeal directed that the conclusions of Justice Teitelbaum regarding the history of Treaty 6 are not binding on the judge who will hear other parts of the case.

While the loss at trial caused some consternation for the Samson Cree community and council, who have spent more than $50 million to get to this point, the Samson Cree chief said there was no hesitation about pushing forward with the court fight.

"The Samson Cree Nation shall continue and will not be deterred in any way in our crusade to have the federal government held fully accountable as treaty partner and trustee and to ensure that our treaty, inherent and Aboriginal rights are respected and implemented," said Samson Chief Victor Buffalo.

Phases 1 and 2 of the massive trial have been completed. Once all appeals of decisions related to the first two phases have been completed, a new judge will be appointed and dates set for the beginning of Phase 3. The trial has been, and will continue tobe, held in a courtroom in downtown Calgary that was especially built for this case.

To date, there has been 372 days of examinations for discovery in these legal proceedings. Lawyers for the First Nations have examined government representatives under oath for an approximate total of 266 days. Lawyers for the government have examined Samson representatives under oath for an approximate total of 72 days.

The trial began on May 1, 2000. Between June 5 and 23, 2000, the Federal Court of Canada held part of the trial on the Samson reserve. Samson took the position that the Elders should be heard on their own land and in their own language. This marked the first time the Federal Court of Canada held part of a trial on an Indian reserve.

Samson sources acknowledge a unanimous decision against them in the Federal Court of Appeal would have been a huge blow. But they say the dissenting opinion keeps the main parts of their argument alive. They point to other cases that received a rough ride at the trial and appeal level that were then decided in favor of First Nations at the Supreme Court.