Caldwell First Nation Wins Court Ruling in Federal Court of Appeal

By Dan Smoke – Asayenes (NNNC)

The Caldwell First Nation celebrated an historic legal victory when the Federal Court of Appeal ruled in its favour regarding its 212-year-old land claim. Despite the neighbouring municipality’s relentless efforts to interfere in this matter, the courts have upheld the nation-to-nation relationship between Canada and the Caldwell First Nation.

The municipality of Chatham-Kent and the Chatham-Kent Community Network (CKCN) have repeatedly sought to intervene in the Agreement-in-Principle (AIP) between the Caldwells and the Canadian government.

These third party groups were hoping to challenge the validity of the Caldwell land claim. In upholding the relationship between the Federal government and the First Nation, the municipality was successfully excluded from the process. The court also ordered the municipality of Chatham-Kent to pay Canada $2500.00 in legal costs.

Last year, motions by the Chatham Kent Municipality and CKCN member Jack Rigby requesting disclosure of the Justice department’s legal opinions on the Caldwell claim were denied in the Federal Court of Canada. This meant that the legal manoeuvring of the municipality and the CKCN could only move forward on appeal.

Caldwell FN legal counsel, Jim Mays said, “I believe their hope was to use that opinion to undermine the AIP. The courts have ruled, and now the Court of Appeal has confirmed, that the government does not have to give over that opinion.”

Caldwell Chief, Larry Johnson observed, “If this DOJ opinion had been given out, then it would have broke down Aboriginal/Crown relations right across the country…because it would bring in this very negative, right-wing, cheering section to every land claim process.” He remarked, “I have my problems with the colonial law system, but in this case it protected the rights of Aboriginal people across the country.”

The next step
The Caldwells will now proceed to the next step, which is a hearing to decide whether the court has the right to set aside the Minister’s decision to settle the Caldwell claim. Department of Justice lawyer, Charlotte Bell explains, “The municipality commenced this action by way of ‘application supported by an affidavit.’ This is how one does it if the case is about setting aside the decision of a Minister.”

“When a case is commenced by an ‘application supported by an affidavit,’ the process is that the opposing party gets to cross-examine on the affidavit.” She elaborated, “the process that was followed here was that the parties cross-examined on the affidavit filed in support of the application [to set aside the Minister's decision].

It was in the course of the cross-examination that the DOJ was asked to turn over its legal opinion, and refused…All of the cross-examinations are now complete…We are awaiting a hearing date.”

According to Brian Knott, Director of Legal Services for the Chatham Kent municipality, a hearing date for the judicial review has been scheduled for the week of September 16th for up to three days, in either London or Toronto. As for the Chatham Kent Council’s next move, they will not be appealing the Federal Court of Appeal’s decision.

The settlement offer of $23.4 million dollars gives the Caldwells’ 25 years to buy up to l,800 hectares of land on a “willing seller, willing buyer” basis as it becomes available.

Several members of the Caldwell FN have served notice that they are not interested in a land settlement offer. They have been litigating against the Chief and Council since the l998 AIP was signed.

Two dissident groups formed and tried to litigate against Chief Johnson.

This forced the courts to grant an injunction against allowing the Caldwell membership to participate in the ratification vote for the land settlement offer by the Crown. The Chief and Council were willing to release documents, but the Crown refused to hand over this “documentary disclosure.”

Justice Dawson, who heard the case, ruled that such documentation is protected by “settlement privilege.”

Business obstacles
Subsequent to this, an election was called last June by band custom. Chief Johnson was re-elected. On his Council, he has one councillor who supported the AIP and two Councillors who supported financial compensation.

This has created an impasse, which is preventing band business from being conducted.

According to an Indian Affairs directive, the previous Band Council was authorized to sign checks to maintain an operative band administration. Unfortunately, they are not authorized to sign a Band Council Resolution (BCR) request for a ratification vote on the land settlement offer.

Chief Johnson perceives this as “a way to topple our leadership, but also, to cause us to lose this land.” This would include present and future landholdings. He says there is a petition being circulated among the membership calling for a new election. He explains that because Caldwell FN is a band custom government (INAC does not ratify its elections), “there would need to be 75 signatures of band members to be considered for calling a new election for the l78 Caldwell members.”

According to Mays, “the year started off with one of the band member groups who sued Council agreeing to drop their case against the Council, sign a declaration that there is no evidence of fraud by the Council, and concede that Larry Johnson won the election for Chief in the June 2001 election.”

He added, “the other group of band members still have not seen the light, but I think that this year will see the end of that claim as well.”

Until then, the internal litigation progresses. Johnson observed, “the colonial law system has been severely abused.”

One galvanizing effort in the area has been the uniting of the Caldwells with the local citizenry who are opposed to the expansion plans of area pig farmers.

Beaches have closed and boiled water advisories have become more frequent owing to pig manure spills into the local water system.

Water monitoring investigations by the Ministry of the Environment are ongoing.

Johnson noted that this is “showing the moderates that we’re good neighbours and that we’ve been good neighbours for the past nine years.”