Roger Southwind, for himself, and on behalf of the members of the Lac Seul Band of Indians, et al. v. Her Majesty the Queen in Right of Canada, et al.
(Federal Court) (Civil) (By Leave)
(Sealing order) (Certain information not available to the public)
Aboriginal law - Fiduciary duty, Breach - Aboriginal law — Fiduciary duty — Breach — Remedy of equitable compensation — Trial judge awarding First Nation equitable compensation for breach of fiduciary duty committed by federal Crown in connection with flooding of part of reserve — Award upheld on appeal — How should principles of equitable compensation, together with legal principles applicable to the Crown Indigenous relationship, be applied to determine compensation owed to Indigenous groups where the Crown has breached its fiduciary duty, and in particular where it has permitted the unlawful use of reserve lands for a public purpose?.
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In the 1920s, members of the Lac Seul First Nation (“LSFN”) became aware of plans to build a dam outside their reserve to support downstream hydroelectric development. It was contemplated that the dam would raise the level of Lac Seul and flood the reserve lands surrounding the lake. Canada did not seek LSFN’s consent to surrender its reserve land, nor did it expropriate the land. The dam was built in 1929 and the water level rose to cover over 11,000 acres of LSFN’s reserve land; nearly one-fifth of the reserve was rendered unusable. Canada, Manitoba and Ontario entered into agreements concerning compensation for losses. Canada reached a settlement with Ontario in 1943 and put settlement funds into the LSNF’s trust account. In 1985, LSFN filed a specific claim for the losses associated with the flooding. In 1991, LSFN initiated an action in Federal Court. The Federal Court awarded the applicants $30 million in equitable compensation for breach of fiduciary duty committed by Canada. On appeal, the majority dismissed the applicants’ appeal. A dissenting judge would have allowed the appeal and remitted the assessment of equitable compensation for redetermination.
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