Court Rejects Ontario Bid to Duck Shoal Lake Court Case

Important ruling on Ontario’s fiduciary duties to the First Nation

February 17, 2021 Judgment

“Both before and after the arrival of European settlers, the Aboriginal peoples in North America had well-developed civilizations that had legal systems and legal customs. Those discrete legal systems are the source of Indigenous law, the law that governs the first cultures as discrete civilizations or civil societies. The case at bar concerns Aboriginal law, not Indigenous law.” [Para 12, Justice Perell Decision, February 17, 2021]

Justice Perell issued his decision this morning dismissing Ontario’s motion to strike Iskatewizaagegan No. 39 Independent First Nation’s (“IIFN”) claim for breach of fiduciary duties. A hearing of Ontario’s motion to strike was conducted via zoom on January 20, 2021. The materials filed in this proceeding can be found at this link:

IIFN claims breaches of fiduciary duties on the part of the Ontario Crown for its failure to protect IIFN’s interests in Shoal Lake and surrounding lands, and for failing to ensure appropriate compensation to IIFN for damages to these interests caused by the City of Winnipeg taking water from Shoal Lake with Ontario’s permission for over a century. IIFN’s statement of claim relied on two types of fiduciary duties: “sui generis” fiduciary duties and “ad hoc” fiduciary duties.

In today’s decision, Justice Perell found that while IIFN’s claim is novel, it may succeed at trial. Justice Perell found that Ontario was unable to show that either sui generis or ad hoc fiduciary duties could not be proven. Justice Perell dismissed Ontario’s motion to strike. He noted that IIFN pleads three “cognizable Aboriginal interests”, namely: a) interest in its reserve lands; b) interest in the lands and properties of its traditional territory; and c) its rights to hunt, fish, and gather on IIFN’s traditional territories both on and off reserve. The court highlighted that IIFN’s statement of claim identifies how IIFN and its interests have suffered ecological injury, cultural damage, spiritual damage, and financial damage.

In summary, the entirety of IIFN’s claim has survived Ontario’s attempt to strike it. Thus, IIFN will be permitted to have its day in court against Ontario. This means that Ontario has not succeeded in its efforts to be let off the hook for over a century of permitting Winnipeg to take water from Shoal Lake without taking any measures to protect the interests of IIFN or ensure compensation.

Media Coverage: 

Judge dismisses Ontario motion to be removed from Shoal Lake water taking lawsuit



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