GULL BAY FIRST NATION, Ont. – The Chief of Kiashke Zaaging Anishinaabek, a First Nation 175 kilometres north of Thunder Bay, is calling a Supreme Court decision about another Northwestern Ontario First Nation "a huge legal precedent."
A ruling last month set aside a $30 million dollar award to Lac Seul First Nation for the flooding of reserve land to facilitate a hydro-electric power project.
The justices said the Federal Court of Canada had only calculated compensation based on the fair market value of the land at the time it was flooded, plus compounded interest.
They said the court should also have taken into account the value the flooded land had to the hydro project itself.
Compensation for Lac Seul First Nation by the federal government must now be reassessed by the Federal Court.
Gull Bay Chief Wilfred King said his community is in a very similar situation.
"We have similar fact evidence, similar fact legal history...All negotiations and all settlements will now be based on a different formula," King said. "What they are looking at is the economic best use of flooded lands."
Gull Bay's claims relate to the construction of dams on the Nipigon River and the diversion of the Ogoki River in the first half of the 20th century.
In 2014, Ontario Power Generation agreed to compensate the First Nation with $12.5 million along with annual ongoing rental fees for flooded lands.
But King said "We have a flooding negotiation that's going on right now" with the government as well.
Gull Bay submitted a flooding claim to Canada in 2008 and Ontario in 2014, asserting that it has an outstanding entitlement to damages caused by unauthorized flooding of its reserve lands.
Negotiations between the First Nation, Canada and Ontario began in 2017, and are ongoing.
King said he expects the next meeting – scheduled for next month – will require "a different assessment of damages for Gull Bay First Nation based on the Lac Seul case."
He added that work still needs to be done to calculate the precise amount of reserve land that was flooded, as well as whatever graveyards, houses, docks and other infrastructure that were lost.
He estimated that the shoreline of Lake Nipigon moved 200 to 300 feet inland as a result of the flooding.
"That doesn't change, because that's just direct damages. But what the Lac Seul decision [also] looks at is...hydro development should have been taken into consideration whereas it wasn't before, or it was at a very low value. That's why it's very, very helpful to Gull Bay...It goes beyond land value, it goes to the economic impact" of using the lake as a reservoir, King said.
Because the Lac Seul court decision has implications for similar cases all across Canada, he said, "it's a huge, huge win for First Nations in terms of equitable damages."
In 2016, Gull Bay First Nation members received an $8-million settlement from the federal government related to a claim for timber royalties dating back to the 19th century.
The band said it was never paid for timber and other resources taken from the land set aside for it the Robinson Treaty.
