Wonder how this affects the MMF’s Land Claim and Treaty position

Some of the arguments sound a great deal like Thomas Berger - Very Interesting http://mmf.mb.ca/index.php?option=com_content&task=view&id=505&Itemid=2

Ruling rejects natives' Edmonton claim

SUE BAILEY
The Canadian Press
April 4, 2008 at 4:17 AM EDT

OTTAWA — The chief of an Alberta aboriginal group says her people will not give up their claim to much of south Edmonton even though the Supreme Court of Canada has ruled against them.

The high court ruled yesterday that too much time had passed and that descendants of the Papaschase First Nation who contend their land was wrongfully surrendered in the late 1800s did not clearly justify their legal standing to make such claims.

The group, which is not officially recognized as a band by the federal government, is considering its next move, Chief Rose Lameman said.

"Our people are upset and are very emotional. Now we are angry," Ms. Lameman said from the parking lot of the sprawling South Edmonton Common big-box shopping development.

"Of course this is a blow, but I am going to regroup with my people and we will move forward from there. Of course there is always the international arena. Take a look at the Tibetans and what China has done to them."

Eugene Meehan, the lawyer who represented Ms. Lameman and other descendants of the original band, said the high court missed a crucial chance to correct a historic wrong.

"There is no middle ground between the right thing to do and the wrong thing to do," he said. "There is no statute of limitations on the right thing to do.

"The bottom line is this: A treaty is an ongoing obligation and a breach of a treaty is an ongoing breach."

It's a case that dates back to a time when many aboriginal people, forced off their land by settlers, faced starvation as buffalo herds thinned.

"The facts are shrouded in the mists of time and some details are disputed," wrote the high court.

But this picture has emerged: In 1877, the Papaschase Indians were allotted a reserve in what is now south Edmonton - land now estimated to be worth about $2.5-billion.

Chief Papaschase and the band's core leaders "took scrip" in 1886, a surrender of their treaty and reserve rights in exchange for cash.

By 1889, government officials recorded just a handful of remaining band members - three men and their families - who gave up their interest in the reserve on condition that proceeds from its sale or lease be held in trust and paid to them or their descendants. Those members then apparently joined the Enoch band, which received those payments over several years.

Fast-forward to 2001, when Ms. Lameman and four other plaintiffs claiming to be descendants of Papaschase members sued the government. They alleged that band members were never properly warned of the consequences of taking scrip, that they'd been wrongfully pressured by settlers to give up their land, that it was never legally surrendered, and that cash from its sale was mismanaged.

An Alberta judge who reviewed the case but didn't try it said the claim could not proceed. The judge concluded that the allegations did not raise issues that could actually be tried and that the plaintiffs had not proven their historic link to the Papaschase leaders or their standing in the case. Moreover, the claims were made long after the six-year deadline on such cases had passed under Alberta's Limitation of Actions Act.

The Alberta Court of Appeal ruled in 2006 that the myriad issues should be decided at trial. The high court disagreed. It said the claimants should have reasonably been aware of the land surrender back in the 1970s when a similar treaty claim was considered but did not proceed.