I’m sitting in a Calgary courtroom looking on with disbelief at what is happening. No fewer than six lawyers are bickering back and forth, representing three different parties. There’s oil multinational Chevron Resources, several Cree Indian bands and the federal government. And everyone is suing everyone else.
Five or six different lawsuits are afoot, all concurrent. The oil company is suing the government and the Indians. The government is suing the Indians and the corporation. And the Indians are suing the other two. It’s a legal free-for-all, a nightmare of judicial procedure and accusation. People are arguing and interrupting each other. And the judge is doing his best to keep track of everything.
Calgary’s provincial court of Queen’s Bench has become the setting of a bizarre melee of lawyers. The dispute is about oil money. Sometime during the mid-1980s, Chevron allegedly overpaid on royalties from several oil wells it operated on Cree land. The money was delivered to Indian Affairs and deposited into a trust fund for each of the four Indian bands involved. It was spent—disappeared. Chevron eventually noticed money missing from its coffers and filed for $10 million.
Despite the fact that the federal government was the primary contact, managing land leases and handling money, Chevron filed suit against both the federal government and against four reserves located near Hobbema, Alta. The four Cree bands-the Samson, the Ermineskin, the Bobtail and the Louis Bull—launched counterclaims worth $50 million against both Chevron and the federal government, based on their own calculations of outstanding royalties and faulty accounting.
It’s a messy collision of the kind of vested interests that now characterize Canada’s Indian country. Counsel for the Ermineskin nation accuses the federal government of betraying the Indian bands and siding with American-owned Chevron. “What interest is the Crown being found to protect?” he asks. “The Crown, by choice of its counsel, is pursuing us.”
He has a point. You’d think that a company such as Chevron—with over $3.5 billion in Canadian assets—wouldn’t need any help throwing its weight around. Why is the federal government trying to collect misplaced corporate booty from Indians—especially when it is bound by the Indian Act, as a trustee, to act in their best interest?
There is more sniping. The government, for its part, claims that it is doing what is legally prudent: honouring the independence of the First Nations by treating them as a separate legal entity—in good times and bad. These Indian bands are the richest in Canada, notes the Crown lawyer. “The status quo gives them everything they want,” he charges, “and if the Crown is in a conflict, it’s because the bands tried to put them there.”
Herein lies the clue to understanding the next several decades of Canadian-aboriginal relations. Faced with a choice between an American multinational and some uppity Indians, the government’s lawyers chose the corporation. But then, that’s because the government itself has been named defendant in nearly $200 billion worth of First Nations lawsuits. In plain terms, the federal government cannot afford to be seen as plugging aboriginal interests or conceding ground that might resurface in future lawsuits. Chevron unwittingly stumbled into a battle much bigger than it imagined.
In all this, the largest of the four bands, the Samson Cree, is strangely subdued. With 51 percent of the Hobbema Cree population, they have the largest stake in the Chevron case. Yet they keep referring to another lawsuit, something they call Victor Buffalo.
Apparently, this Buffalo person they are talking about is quite popular. Soon, all the lawyers are talking about him. Afterward, nobody will comment on Victor Buffalo. A trip to the federal clerk’s office reveals that the Buffalo case has been sealed to the public—a case so confidential, in fact, that no one can say quite why the court documents are closed. There’s not even a statement of claim, the most basic of court documents. It is a lawsuit that makes the court clerk nervous.
This much is clear: Victor Buffalo is a Samson chief, who, in 1989, launched a massive civil action for $1.38 billon in damages against Indian and Northern Affairs Canada. Despite the high security around the case, aboriginal leaders, lawyers, judges and bureaucrats all have their stories. Several sources disclose that the case, active since 1989, will begin trial in April 2000. Over 150,000 pieces of evidence have been collected. And most of an office tower floor in downtown Calgary has been reconstructed to fit a special, high-tech courtroom that will accommodate this single, massive legal proceeding.
After further digging, it becomes apparent that Buffalo is merely the first of several Samson lawsuits worth somewhere between $30 billion and $40 billion—lawsuits that claim mineral rights for a large swath of land across central Alberta. Victor Buffalo is also at the centre of a constellation of major aboriginal challenges that claim extensive off-reserve resource rights—land that natives say they never signed away—and other rights across Canada, worth upwards of $190 billion in retroactive damages. (The federal government has appraised its current liability at the significantly lower figure of $8.4 billion.)
With 10 out of 12 of Canada’s largest cases, Alberta is the ground zero of this aboriginal effort to gain shared control of oil and gas, timber and mining resources on Canada’s Crown land. In addition to the Samson, the Blackfoot, Peigan and Stoney of Treaty Seven have already files suit for the mineral rights of southern Alberta—and Treaty Eight bands are positioning themselves in the North.
No wonder the government hid behind Chevron. I tour the empty courtroom with a federal security guard. The carpet smells new and the paint looks fresh. The judges and lawyers have large, cushy seats and computer consoles. It is a modest, 100-seat amphitheater, designed and decorated with the same bureaucratic sensibility that governs most office buildings.
Samson lawyers won’t return my calls. The government won’t release its court documents. And the Samson tribal administration won’t talk to me about the Victor Buffalo case, unless their lawyers say it’s okay—which obviously isn’t happening.
In search of answers, I manage to contact several Samson Warriors, the self-appointed official opposition of the band’s tribal government. They agree to talk—but no tape recorders or cameras are allowed. The reserve is off-limits, because they can’t be seen talking to journalists. “Too much trouble,” says one.
We agree to meet at Tim Hortons in Wetaskawin, 20 minutes down the road from Hobbema. It is lunchtime when they arrive. Six large Indians enter the doughnut shop dressed in jeans, powwow windbreakers, boots and moccasins. Several tote cell phones. It’s a long way from W.P. Kinsella’s famous fictional Hobbema of whimsical Indians and their kooky hijinx. These people mean business.
The de-facto spokesperson is the Warriors’ only female member: Deborah Nepoose, school bus driver and grassroots activist. Nepoose
, like the other Warriors, can’t tell me much about Victor Buffalo, but she gets to the point quickly. “We’ve been screwed by everyone: the government, social services, consultants—everyone who was supposed to help us,” she says. “Screwed. That’s the Victor Buffalo case right there.”
To understand why, you have to go back several decades. In the 1940s, the Samson Cree discovered they were sitting on a gold mine: underneath their reserve was one-third of a vast oil field that, at its prime, would account for 10 percent of Canada’s national oil output. When private oil companies applied to drill wells on the land, the federal government unwittingly got into the oil and gas business, negotiating royalties and contracts. At Samson, as at a number of other resource rich reserves, Indian Agents—and later the federal trust company, Indian Oil and Gas—were given power to manage millions of dollars of natural resources.
Between 1980 and 1989, the federal government collected over $783 million in oil and gas royalties for the Samson Cree, almost $200,000 for every man, woman and child on the reserve. Taken from bountiful on-reserve oil fields, roughly half these funds were held in trust. The remaining money was distributed to members and spent on various projects.
Canada’s richest Indian nation has been blessed by its affluence: today, large modern homes dot a reserve that, until the late-1980s, was the suicide capital of North America. To any stranger that passes through Hobbema, there is little evidence of the deep despair and social decay of that era. Driveways, strip malls and recreation centres give the Samson reserve the look of a misplaced suburb. There are teepees, to be sure, but few of the hallmarks of poverty one associates with Indian reserves—broken-down cars, broken-down homes. A local high school’s billboard provides the only clue to any trouble: “Respect Other’s Property: School Under Video Surveillance.”
Nevertheless, the Samson were also cursed by their gift. Between 1985 and 1987, the male suicide rate was 83 times the national average, one of the highest rates in the world. Kids were dropping like flies in the community of 6,000, with over 300 suicide attempts each year. At the time, families were collecting roughly $3,000 in royalties each month and teenagers were given $30,000 cheques on their eighteenth birthdays. The massive influx of oil money, co-administered by Indian Affairs, came closely on the heels of residential schools. The community is still recovering in all sorts of ways—auto wrecks are common enough that the Canadian Auto Association attempted to de-insure its Hobbema drivers in 1999.
This is what angers the Warriors: the Samson have had more opportunity than any other First Nation in Canada, yet they still suffered 10 years if drugs, alcohol and violent death and suicide. “The government knew what was happening,” says Nepoose, “but they didn’t care.” Indeed, a 1984 study commissioned by Indian Affairs found that sudden wealth was indeed causing serious social disruption among several of Alberta’s oil-producing bands. But money management and social programs were low official priorities for the government, even though these bands had no experience with money. “Nobody thought about counseling when this money came in,” said the report’s author, Joe Dion, in an interview at the time. “I think the department was remiss and irresponsible.”
The Warriors are frustrated by the government’s failure to address these problems—problems that were only exacerbated by the rapid devolution of government from Indian reserves, which also precipitate a series of tribal financial crises. (In 1999, following several years of large deficits, the Samson entered into a co-management agreement with Indian Affairs to have an accounting firm run their finances.) Allegations of neglect, corruption and mismanagement of Indian money are all familiar to Indian country. That’s only more so at Hobbema. So it comes as little surprise at the very core of the Buffalo case is a damage claim about money, that the Samson allege, was poorly negotiated, misappropriated and mismanaged by the feds. The government, they charge, was an absentee guardian and negligent trustee.
Other Indian bands are also raising such concerns, but the Samson Cree are one of the few nations that can actually afford to challenge the government. The Warriors report that the band will probably spend upwards of $30 million on legal fees, research and other court related expenses over the course of a decade.
In the end, the Warriors can only confirm that the Victor Buffalo claim is indeed huge and that the band has been amassing an army of lawyers to challenge Indian Affairs on nearly everything that has happened from the 1940s to the present. They’re surprisingly short on details. “You probably know more about the case than we do,” admits one Warrior. “Our leaders don’t say anything—you have to fight for answers around here.”
A year later-January 2000-I’m lounging in the posh Calgary offices of the Samson legal team. The search for answers is getting easier. Before me is Terry Munroe, longtime advisor to the Samson nation. He’s agreed to talk because he feels the Samson have a strong case—and because the details of the case were leaked to CBC radio a few months earlier, in part thanks to some digging I had done. I’m the first writer they’ve let in the door.
Munroe explains that the Buffalo case is what is known as a breach-of-trust proceeding. The Samson charge that between 1946 and 1989, $1.38 billion of oil and gas revenue were lost by the feds due to faulty accounting. Not only had Samson assets been poorly managed, claims Munroe, but the government used band assets to fund Indian Affairs programs, as well as serve as a low interest loan fund for other federal government programs—between S100 million and $400 million was borrowed. In other words, Indians were lending the federal government money that, had it been managed by a private trustee, could have delivered significantly more returns.
It is a challenge that has been about three decades in the making. Until the 1970s, Canada’s Indian Act granted vast discretionary powers to Indian Agents in the administration of aboriginal business interests, children, housing and land on the 600-odd reserves across Canada. But many Agents just weren’t qualified to cut multimillion-dollar deals with oil corporations or ensure money was accounted for. Nor was Indian Affairs necessarily equipped to deal with the massive business operation—or its social ramifications. Inevitably, mistakes were made. “They didn’t have the players and didn’t have the resources and basically played the tune of oil and gas companies,” Samson lead council James O’Reilly explains to me later from his office in Montreal. “They were an absent caretaker-it would have been a fluke if there hadn’t been problems.”
Federal documents from the 1980s seem to bolster the Samson argument. One Indian Affairs memo sent to deputy minister Bruce Rawson in 1985 reported that Indian assets were being managed in a haphazard way. Resource offices were understaffed and employees were under-informed. “It is almost inconceivable that any organization, public or private,” said the memo, “would not generate basic and essential resource management information.”
One of the largest aggregations of oil and gas assets in Canada was being managed by an office of the Ministry that, as Indian Affairs Minister David Crombie reported in a 1986 memo, was “devoid of a proactive plan and lacking in resources and authority.”
Samson elders and councilors began asking tough questions about their assets when Indian Affairs transferred a degree of self-government to reserves in the
1970s. Few answers were forthcoming. In 1989, after failed attempts to negotiate a return of Samson trust funds to the reserve, Chief Victor Buffalo filed his lawsuit against the government in federal court. The case has since been locked in pre-trial motions, evidence collection and other things that happen when you sue the government for $1.38 billion.
But money aside, it’s the potential precedent of Buffalo that makes it so controversial. If the government’s breach of trust, both financial and other, was widespread—and Indian bands across the country allege it was—then what, in fact, is the meaning of the Indian Act? Did the trustee have the authority to act unilaterally and without liability? Or could it be held accountable for errors—vast, system-wide errors to the order of millions of dollars? And just how accountable?
After more than 150 years of assorted Indian Act legislation, nobody actually knows the answers to those questions. The relationship between aboriginals and Canada is still alarmingly fuzzy. Among other things, the Buffalo case will address the complicated legacy of the Act—and today’s increasingly antagonistic relationship between government and Indians. History is being put on trial.
This brings up the other reason Terry Munroe may have agreed to talk to me: he’s impressed with my breeding—specifically with my long-dead relative who authored Canada’s first comprehensive Indian Act in 1876 and negotiated several prairie Indian treaties. The one who got this whole thing started.
In 1877, Victor Buffalo’s ancestors made treaty with my ancestor, Rt. Hon David Laird, Governor of the Northwest Territories and agent of the Queen. Chief Bobtail, representing the Bear Hills Cree, today’s Hobbema bands, signed his adhesion with Laird. It was a momentous event, heralded as Canada’s historic accession of valuable western territory.
Treaty Six covered the vast expanse—some 276,000 square kilometres—of what is now central Alberta and central Saskatchewan. In return for agreeing to share the land—or surrender the land, depending on whose version of the treaty is being told—First Nations such as the Samson were to be put onto reserves and allowed certain rights and annual dispensations. Of course, while officials such as Laird were scoping out potential coal and gold deposits for European ownership, part of the real prize was mistakenly given away to aboriginals.
Laird’s Indian Act and Treaty Six are fodder for the Victor Buffalo case and for a whole generation of Indian activism. Indeed, there is a reckoning afoot, an aboriginal effort to rectify disputes that go back further than Confederation. From the government’s perspective, it’s Oka without the guns: Indians are fighting the Indian Act, Indian Affairs and even private companies with sophisticated legal challenges, in an effort to win back assets, land and natural resources lost since the 1800s. For the natives, it is about more than money; it is a fight for self-government on aboriginal terms: not the welfare encampments of most Indian reserves, but quasi-provincial jurisdictions with the inevitable power that comes from sharing and controlling natural resources. There is a funny story floating around Calgary’s oil patch. It goes like this: an Indian band was informed by Indian Affairs that it had been short-changed by a major oil company on its royalties. It was a claim, they were told, that was probably worth millions. But they’d have to get it back themselves. The government made it clear it wasn’t about to go commando on a big corporation and get mixed up in a series of messy lawsuits.
So Indians—the Stoney Nakoda nation, precisely, southerly neighbours to the Samson Cree—took the company, PanCanadian, to court and won an award of $6.2 million. The company appealed; the government was nowhere. The Stoney played hardball and sent provincial court bailiffs into PanCanadian’s posh, downtown lobby to seize assets. Expensive artwork, tasteful furniture and desks were all tagged by court officers, to be carted off in lieu of payment. Within about an hour, steaming PanCanadian executives agreed to meet their obligations. Payment for $6.2 million was made to court. And now, the federal government arrived on the scene—and claimed the money as aboriginal trustees.
The Stoney case points to the litigious future of Indian-corporate relations. Indian bands will sue corporations in exactly the way that companies currently litigate against each other. The Samson have already filed actions against Imperial, Amoco and Chevron.
But the real story is this: why is it that in one courtroom, the federal government refuses to act on behalf of Indians, while in another it’s suing them—and then in yet another courtroom, it’s claiming money on their behalf? As litigant, defendant and trustee, the federal government increasingly places itself in a conflict-of-interest position. This is the essence of Indian Country in the year 2000: a government that’s on the hook for $200 billion in damages is also responsible for the long-term welfare of the plaintiffs. Sworn legal enemies are bound by treaty and law to find solutions to a long list of historical and political disputes.
Meanwhile, many Indian bands are still falling apart. A 1998 Indian Affairs study found that if bands were ranked as independent countries, the average quality of life on Canada’s Indian reserves would fall below that of Mexico, Kazakhstan and Malaysia, based on the United Nations human development index. While aboriginal court challenges and land claim victories accelerated during the last decade, the social and political status of First Nations is actually slipping, relative to the rest of the population.
In many ways, the Buffalo challenge gets to the heart of this problem: what is Canada’s responsibility to native people? Certainly many pundits already have their answer: we don’t owe Indians a damn thing. But federal law and Canadian history aren’t that simple. “Samson is a good testing ground for the whole federal challenge of the Indian Act,” explains Samson counsel James O’Reilly, who engineered the historic victory of the James Bay Cree against Quebec Hydro. “Can the feds do what they want? Or do they have an obligation to provide some level of services and standards?”
When David Laird launched the 1876 Indian Act in Parliament, the politician and former journalist was thinking about government responsibility for First Nations. “Indians must either be treated as minors or as white men,” he said. Until aboriginals were self-sufficient, Laird reasoned, the government had a duty to ensure their well-being and to protect their interests.
What inextricably binds Canada to First Nations is a thing called fiduciary duty: the fundamental responsibilities that stem from that Canadian-aboriginal partnership. With the Indian Act in 1876, Indians, treatied or not, became literal wards of the Canadian state; likewise, their lands, assets and mineral rights came under the trust of the federal government. As defined by Canada’s courts, the federal-Indian relationship is sui generis: unique, because it is a trust that exists at a deeper level than any business contract or public law, not quite like any other legal entity.
Of course, if everything had worked to the government’s original assimilation plans, there wouldn’t be any more Indian reserves or bands. Nor would there be a growing pile of claims and lawsuits. As it is, today’s government is saddled with a complicated web of obligations and responsibilities, partially due to the Indian Act’s original, all-controlling designs.
Fifteen years ago, this legacy found its way into Canadian courtrooms. In 1984, the Supreme Court took a long, hard look at the Indian Act and delivered a landmark precedent. The case: the federal government had leas
ed Indian land from the Musqueam nation to a Vancouver golf club, at rates well below market value. The Indian band found out, sued the government, and won. It was awarded $10 million for breach of fiduciary obligation. The decision, known as Guerin v. The Queen, proved that the government could be held to a higher standard than anyone had previously thought. The kids could sue the parents for substantial damages.
Musqueam sent a shock wave through Ottawa. “The government realized just how vulnerable it was, how exposed it was on numerous different fronts to charges,” says Rick Ponting, University of Calgary professor of sociology. It also realized, Pouting says, that it “had to start making its way out of the Indian Affairs field. And [so] we have the various models of self-government that the federal government has negotiated in an attempt to basically off-load federal government responsibilities and activities onto First Nations governments.”
Immediately after the Musqueam decision, federal Minister of Indian Affairs David Crombie sent a confidential memo to deputy minister Bruce Rawson to inquire about the implications of the case. The internal document outlined a number of questions that required answers “without undue delay.” A number of questions focused on the failure of government to protect aboriginal interest. “Instead of defending Indian rights or prosecuting incursions on Indian lands, the Department of Justice has often done nothing, or has actually acted against the First Nation interest. Is the Federal government violating its special obligations… ?”
Money was another question. “The trust accounts do not have returns which an informed and prudent trustee should be able to earn,” noted Crombie. He called for an immediate, independent assessment of Indian Affairs and its management practices. When reports came back in 1985, the results looked somewhat grim: “The Indian Minerals West office … cannot effectively perform some of the most basic resource management functions.”
Another 1984 Indian Affairs report advised that trouble was imminent: “Potential consequences … are real,” noted the document, “and the exposure of INAC [Indian and Northern Affairs Canada] is high.” By 1986, the Treasury Board had reported that “as a result of the present situation, the Department and the Crown are in a very vulnerable position and the consequences could be devastating.”
In all fairness, putting history on trial is messy business. As chief Crown counsel Barbara Ritson points out, even if mistakes were made, “We’re looking at things that happened 40 years ago.” In the 1940s and 1950s, she says, oil and gas companies frequently operated at standards that would horrify today’s corporations. It would be wrong to judge the legacy of Samson oil and gas by today’s sophisticated levels of financial and technical expertise. Moreover, the Indian Act didn’t authorize agents to place band monies at risk in pursuit of a higher rate of return, as might a private-sector trustee.
In other words, the legal issue in Victor Buffalo isn’t whether or not the government made mistakes, but to what standard we should judge the conduct of a large bureaucracy over the span of several decades. “Just because you have a fiduciary responsibility,” she continues, “doesn’t mean you have a duty.” The Crown has a strong case of its own, and the $1.38 billion claim is by no means a sure bet. Neither is the $190 billion in damages claimed in other aboriginal lawsuits.
Nevertheless, government ineptitude was well known among insiders at Indian Affairs. Robert Laboucain, former Alberta regional director for Indian Affairs, was fired by Indian Affairs in 1986 for asking tough questions about disappearing Indian money and bureaucratic inefficiency. “My God, you can’t imagine how the government wants to avoid this,” says the Metis business consultant about the Samson case. “They’re actually going to be challenged by Indian bands. For what? Maybe $1 billion? They’ve got the government by the balls and they know it.”
The Musqueam case also helps to explain why, at the height of the Hobbema suicide crisis in 1985, the federal government chose to keep its distance from troubled Cree reserves, in keeping with a policy of strategic neglect. So badly did Indian Affairs want to remove itself from long-term obligations that a suicide epidemic couldn’t bring them to action. “I got into a number of confrontations with the senior management,” Laboucain recalls. “It wasn’t my place to express concern for the people who were really at the losing end of department policy.”
In 1986, with a violent death happening every week at Hobbema between 1985 and 1987, Laboucain made his concerns public. It was a dark time for the department. “I’d been there for close to two years. Even the most basic human concern by the Department of Indian Affairs was totally absent. It just wasn’t there: the cynicism, the constant criticism, the discrimination was profound,” says Laboucain, sadly. “And I don’t see any changes in how these bureaucrats respond now [versus] 13 years ago. It hasn’t changed at all.”
At the height of the Samson suicide crisis, Indian Affairs was spending roughly $2.8 billion each year. Now that the department spends upwards of $7 billion annually, the stakes are only higher.
It is important to start at the beginning, says Victor Buffalo, chairman of Peace Hills Trust and former Chief of the Samson Nation. We are sitting at a meeting room on the tenth floor of Peace Hills’s Edmonton building.
Fine, I say. The beginning, then. I get the feeling Victor Buffalo finds it funny that I am here in the executive offices of Canada’s largest Indian-owned bank. A year ago, his lawyers wouldn’t return my calls. And now, as Laird’s distant offspring, I’ve come crawling back into Samson territory to find out what kind of war plans they have in store for the Queen. Despite Buffalo’s mirth—“You don’t look like him,” he says—I get the feeling it’s payback time. Not for the last dozen years, but for the last hundred.
As Buffalo explains, there have been broken promises and bad faith ever since the Samson signed Treaty Six in 1877. When a massive food shortage ravaged prairie Indians between 1878 and 1883, the federal government ran a mandatory work-for-rations program, despite an explicit Treaty Six “famine clause” that guaranteed free supplies in an emergency. Hobbema chiefs wrote an angry appeal to John A. MacDonald in 1883: “If no attention is paid to our case now we shall conclude that the treaty made with us six years ago was a meaningless matter of form and that the white man has doomed us to annihilation little by little.”
Buffalo recounts these details matter-of-factly. After more than a decade, his case has become another part of day-to-day business. As a young man in the 1960s, Buffalo worked at a chemical plant and then took training in oil and gas at college in Calgary. His off-reserve time opened his eyes to the white world of business. You have to learn how to take care of yourself. While serving as chief, Buffalo launched Peace Hills Trust in an attempt to ensure the long-term security of Samson assets, some $400 million, currently held by Indian Affairs. Under its own steam, the institution has amassed Indian-owned assets of over $450 million.
Around us hangs a collection of modern First Nations art, something the Samson elder points out with pride. Look, he says with a wave of his hand, this is why Indians mean business—we never stopped being aboriginal, despite everything else. “The Indian Act never expected that Indians would have a huge amount of money,” he jokes. “They didn’t expect us Indians to get into business.”
Indians never expected to get into business either—but even the affluent like Samson are having to think about the future. “I remember the elders saying that we’ve got to have something in place when the oil and gas is gone,” says Victor Buffalo. “When we talk about self-government, we’re talking about self-reliance.” The plain truth is that the Samson nation can’t rely on the government as a partner—nor can it go back to buffalo hunting or the dwindling oil supplies beneath its reserve land. Its $400-million trust funds will only last so long, given the high unemployment on the reserve. David Crombie himself observed in his 1984 memo, “the distribution of trust assets, as they now stand, is not an adequate financial base for First Nations self-government.” As with many First Nations, the future is closing in.
“We just want to exist, not be beholden,” Buffalo says. “We can’t hunt. We can’t fish—everything is regulated. We’re surrounded.” The solution could lie in the mineral rights that the Samson, like many bands across Canada, claim they never ceded. “It’s the resource wealth of Canada that made it the way it is,” explains Buffalo. “Lumber, fish, oil: the resources of this country. That’s what we’re talking about. There’s got to be an equitable distribution.”
Sometime in the next decade, the Samson nation will attempt to clarify its claim to off-reserve mineral rights. These proceedings, filed separately from the Victor Buffalo lawsuit, are years away from court. But the total of $30 billion claimed against both the federal and provincial government poses a tough question: if treaties didn’t include sub-surface rights, then who really owns Canada’s vast resource economy? And if Indians have a fair claim, then how do we work out an equitable solution between business, government and First Nations?
In Alberta, Saskatchewan, Manitoba and Ontario, treaties that were assumed to be historical surrenders of the existing provincial landmass have become current again. “It was never our intent to relinquish or extinguish our rights to the lands and resources,” explains Laurence Joseph, vice chief of the Saskatchewan Federation of Indian Nations. “That’s what we’re asserting today without malice: to get back our traditional territories and stewardship of the land and resources.”
The precedent set by the 1997 Delgamuukw Supreme Court decision, which acknowledged the validity of oral history in a court of law, may provide First Nations with a mass of new evidence and testimony. Across Canada, elders have told their stories about how treaties were negotiated. Often, their accounts differ from the official written version—notably on the point that treaties were, in fact, peace agreements and partnerships, not land and mineral rights surrenders.
According to oral histories of Treaty Six, for example, elders present at treaty signings understood that mineral rights were not up for grabs. “I used to listen to my grandfather,” Ermineskin elder John Buffalo recalled in 1975. “They were told that … anything underground would not be given up, only six inches, enough for settlers to grow crops…. ‘If anything is discovered below the surface of the land, half of its value will be towards your benefit,’ the treaty commissioner said.”
Many First Nations argue that the delegation of resource rights to the provinces by the federal government was done illegally and contravened the spirit and intent of the treaties. “Now, these guys are going to war,” says Robert Laboucain. “If you can prove original aboriginal title, then what about the retroactive payment of royalties on what has been extracted for 75 years?” Laboucain suggests that the leadership won’t go after national parks, provincial parks or private property, but when it comes to Crown land—“that’s up for grabs.”
Consequently, governments and companies have begun to take these concerns seriously. The federal government has reopened some treaties; recent agreements have included resource-sharing clauses on oil and gas revenues, notably with the Vuntut Gwitchin of the Yukon, who now collect 25 percent of all royalties on their traditional lands. For its part, the Canadian Association of Petroleum Producers (CAPP) has been holding discussions with prairie First Nations about mineral ownership. “We look to government for direction and clarity on the rights we have,” explains David Luff, vice president of CAPP. “What it will come down to is an interpretation of the treaty, a definitive reconciliation of rights”—including the resource rights of the provinces and of companies.
The emerging aboriginal reality poses uncertainties for everyone, not the least in negotiating the next several years without a small war breaking out. The government tendency, so far, has been to delay and sublimate the natural resource question, strategizing damage control. Meanwhile, the judiciary has been increasingly affirming indigenous rights and land tide. As governments dither, many aboriginal leaders— excluding Ottawa’s moderate Assembly of First Nations—are increasingly defiant. “Now they forced our hand,” says Laurence Joseph. “They’re going to have to contend with us.”
Victor Buffalo himself has misgivings about big lawsuits. They are expensive, antagonistic and messy. And court action doesn’t always solve the problem, even if you win. “The whole thing should have been done on a negotiating basis,” he says. “I didn’t want to take the government to task. And I debated whether we should file claim. But the government keeps hiding behind regulations and laws,” says Buffalo. (To date, the federal government has made one settlement offer on the Buffalo case—a nine-figure sum that all four Hobbema bands promptly rejected in 1998.)
The Samson Cree have plenty of their own troubles to worry about, ones that lawsuits probably won’t fix. Already, the federal government has challenged the authority and credibility of reserve politicians. “We’ve got a lot of skeletons in our closet, too,” says Buffalo. “And they’ll come out.” With intensive community work and programs, the Hobbema suicide rate had dropped 74 percent by 1988. But political scandals have regularly rocked the reserve in recent years, leading to a series of inter-Samson lawsuits over election results, alleged money-for-votes schemes, as well as the misappropriation of band funds by elected officials.
The issues come up when I reconvene with the Samson Warriors, a year after our Wetaskawin meeting, at the Ponoka Tim Hortons in January 2000. There are roughly 10 active Warriors at Samson these days (plus back-benchers) and they are preoccupied with trying to build Indian democracy. The Warriors report that the tribal government situation has improved, but band elections are a complete mess. Indian Affairs too hastily downloaded self-government provisions and neglected to work with aboriginals to leave a functional democratic process. “Indian Affairs are the ones who approved the election laws,” says one Warrior, “but why did they approve them without a code of conduct or a code of ethics?” It’s a too-familiar set of themes. “They turn their cheek when there is trouble,” says another. “They’re trying to shy away from their fiduciary duty.”
While landmark cases such as Victor Buffalo are slowly moving through the legal system, First Nations across Canada are faced with a difficult situation: they must endeavour to improve reserve conditions with an all-powerful government that has demonstrated a somewhat limited interest in their long-term welfare. According to history, law and treaty, they must cooperate with provincial and federal governments that have also been named as defendants in major lawsuits. Whatever the outcome of Victor Buffalo v. The Queen, for now, this is the reality of Canadian aboriginal life: there is no alternative to the federal government.