Thunder Bay

Court rules First Nation needn't share settlement cash with victims of discrimination

The Ontario Superior Court has ruled that Ginoogaming First Nation doesn't have to share settlement money from a dispute with the federal government with individuals who were barred from being members of the band by discriminatory federal laws.

Past laws that discriminated against Indigenous women were at play in a case involving Ginoogaming

Lawyer and former Couchiching First Nation Chief Sara Mainville complimented the trustees of the Ginoogaming First Nation Timber Claim Settlement Trust for using the courts to seek clarity about their obligations under a trust agreement. (Jody Porter/CBC)

The Ontario Superior Court has ruled in a case that highlights the fallout from past government laws that discriminated against First Nations women.

Specifically, the ruling addresses how laws that deprived Indigenous women of status if they married non-Indigenous men impacted their descendants' rights to settlement money won from their communities' disputes with the Crown.

The case involves a $14 million settlement reached in 2002 between the federal government and Ginoogaming over the government's mismanagement of the First Nation's timber assets. The northwestern Ontario community is about 300 kilometres northeast of Thunder Bay.

In late 2001, the First Nation ratified a trust agreement granting each member, "without discrimination," $1,000 from those funds.

But government laws at the time prevented some people who are now members from joining the band in the era when the vote took place.

Descendants of women who lost status due to marriage continued to face discrimination

Prior to the advent of the Charter of Rights and Freedoms, Indigenous women lost their status if they married non-Indigenous men.

Although that changed with the arrival of the equality provisions of the charter in 1985, the complex evolution of the law after that meant that, at the time the trust agreement was signed, some of those women's descendants still didn't have equal access to community membership.

That has since changed, and some individuals who were previously ineligible are now members.

That, in turn, led to inquiries about whether those members had rights to the settlement funds, according to Jason Raysevich, one of the trustees with the Ginoogaming First Nation Timber Claim Settlement Trust.

Input from the community failed to provide the trustees with a clear direction on how to proceed, he added, so the trustees sought advice from the court on its legal obligations — themselves adopting a neutral position on the question.

Band membership was clearly defined in trust and settlement agreements 

Justice Tracey Nieckarz ruled that the letter of the settlement and trust agreements don't require the funds to be shared with people who became members after 2002 because the agreements clearly state that a member is an individual who was on the band membership list at the time of the ratification vote.

Nieckarz noted, however, that the trust agreement contained provisions allowing the band to alter its terms.

The trustees will now consult with each other, the band leadership and the community as a whole to decide where to go from here, Raysevich said, adding that the First Nation is learning from the process of administering the timber trust. 

"Even though it's kind of a drawn-out process sometimes when we have to go get a legal opinion, we look at the positive and the lessons learned and look at the capacity that the community is building from learning from the process," he said.

One lawyer, and former First Nation chief, commended Ginoogaming for seeking clarity from the courts on the question.

"I think that was very prudent of these trustees to do so," said Sara Mainville, a partner with Toronto-based Olthuis Kleer Townshend and a former chief of Couchiching First Nation.

"I'm a person that really dislikes the discrimination in the Indian Act," she added.  "I wish that we could afford to be more generous and to be more open to every single eligible member being members now."

"Unfortunately, because of the lack of resources, the real concern for First Nations and for trusts is, when there's a mass entry of new members, how much that takes limited resources away from our limited administration."

"I understand the challenges," Mainville continued. "But I'm not a fan of the discrimination in the Indian Act, and I hope that we find ways to ensure that the benefits that we have ... that all of our members can enjoy them."