Iskatewizaagegan (Shoal Lake No. 39) Gets their Day in Court after Groundbreaking Ruling Orders Winnipeg and Ontario to Trial on Ontario’s “legislative sleight of hand”

“This provision is very far-reaching and might seriously cripple our action with respect to the application of Winnipeg for leave to take its water supply from Shoal Lake…” Letter of Deputy Minister of Ontario Aubrey White to Head of Indian Affairs Canada, December 15, 1914

“…the points you have raised are important and the difficulties you anticipate must be removed… It is my conviction that we should say nothing about water or fisheries but leave those questions to be decided as the cases arise by the existing law and usage.” Response of the Head of Indian Affairs Canada Duncan Campbell Scott, December 30, 1914

Iskatewizaagegan Independent First Nation (“IIFN,” formerly Shoal Lake No. 39) was in Court on March 26-27, 2024, arguing that their claim for compensation must include steps taken by the Crown to extinguish their water and fishing rights in order to pave the way for Winnipeg’s 110-year extraction of Shoal Lake water.

On April 12, 2024, Justice Perell released his written decision in respect of the hearing. He did not accept the Defendants’ arguments that IIFN waited too long to bring the Headlands claim to Court and granted leave to IIFN to amend their claim to include the Headlands issue. The First Nation welcomes this ruling by Justice Perell and that its claims of deprivation and fraudulent concealment in which their rights to lakebeds, water, islands, and exclusive fishing rights in Headlands Areas were surreptitiously stolen, will be tried on their merits.

After granting Winnipeg permission to build a 150km long straw to Indian Bay, Shoal Lake, Ontario went back on their promise that the Headlands Areas are included in Treaty #3 reserves. In 1915, Ontario enacted a new statute that took back the Headlands Areas for the province, and to protect Winnipeg’s new access to the water. Never, in the last 100 years, has Ontario had to address this “legislative sleight of hand”. But due to IIFN’s hard work and commitment, Justice Perell has ruled that the First Nation’s allegations will go to trial.

Justice Perell also recognized the importance of reconciliation in lawsuits brought by Indigenous communities. He stated at paragraph 118 of his decision:

“Given the paradigm shift of the enshrinement of Aboriginal rights under s. 35 of the Constitution Act, 1982 and given the aspirations and imperatives of reconciliation, and given the need to examine the history and the historiography of each case, the civil procedure in Aboriginal law cases is a dynamic and a still developing specialized subject of the law of civil procedure. The Supreme Court of Canada has emphasized that … [t]o achieve the project of reconciliation, it is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter…”

Related Documents:

Media Coverage:

Rhiannon Johnston, CBC News (Mar. 9, 2021) – “Judge dismisses Ontario motion to be removed from Shoal Lake water taking lawsuit”

Rhiannon Johnson, CBC News (Feb. 15, 2021) – “Ontario First Nation fights for compensation for Winnipeg taking water from Shoal Lake”

Previous Postings: – April 7, 2021 – March 15, 2021 – February 17, 2021 – January 18, 2021

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