First Nation in N.W.T. facing retaliation complaint at human rights tribunal

APTN News: Salt River First Nation in the Northwest Territories is facing allegations that it retaliated against two of its members after they filed a human rights complaint against the band.

According to records at the Canadian Human Rights Tribunal, Christopher Coyne and Penny Way originally filed the complaint against Salt River, or SRFN, because it stopped issuing them treaty payments called “Per Capita Distribution” (PCD), money from an agreement signed with Canada. They allege the exclusion is discriminatory.

But they amended their complaint after the band sent a letter to its members outlining the case and naming Coyne, Way and members of the community who are supporting them. The letter also outlines the names of the people who supported the band council.

“Christopher Coyne and Penny Way each brought human rights complaints against SRFN before the Canadian Human Rights Tribunal,” the letter starts. “They claim that they are being discriminated against because they do not receive PCDs. SRFN’s response is that we are a sovereign, self-governing First Nation and we have the right to make laws and policies to govern ourselves.”

Later it said, “The PCDs are paid out of the income from SRFN’s Settlement Trust, which is the compensation that Canada agreed to pay SRFN when we settled our Treaty entitlement claim for reserve lands and cows and plows on June 22, 2002.

“The compensation that Canada agreed to pay was based on the 757 members on the membership list for SRFN as of June 22, 2002.”

The original complaint

According to the original complaint, the band “maintains that only persons who were on the membership list at the time of signature or their descendants born after June 2002 are entitled to the payments.”

Coyne and Way argue they should be entitled to payments because they are members. The tribunal records posted online said that while Coyne’s biological mother is a member of SRFN, he was “adopted by a non-Indigenous family as an infant and was only added to the SRFN’s membership list in 2012.”

The complaint says Way’s paternal grandmother was from the SRFN, but she lost her “Indian” status under the Indian Act, R.S.C., 1985, c. I-5, when she married a non-Indigenous person,” meaning she couldn’t pass status on to her father. He eventually acquired status after amendments to the Indian Act were passed – and eventually was able to pass his status onto Way in 2011.

“They allege that their family status, which is a prohibited ground of discrimination, was a factor in the SRFN’s decision to deny them PCD payments,” according to their complaint at the tribunal.

The PCD trust

The treaty in question was signed in 2002. According to the letter the band issued, the money is for the 727 people who were members of SRFN when it was signed with Canada.

“These members are the Original Beneficiaries of the Settlement Trust,” according to the SRFN’s letter. It says the communities negotiators “asked for additional compensation for people who may be entitled to become members of SRFN but who were not yet on the membership list. Canada refused.”

The letter says Canada has added 240 people to its membership roll since 2002.

“Canada has not provided us with any additional compensation for those people,” the letter said.

In 2016, the SRFN held a meeting to discuss the election code with its members. According to the letter, “members present unanimously voted to direct Council to take every step necessary to preserve and protect the reserve lands and Settlement Trust including stopping payment of PCDs from Settlement Trust income to members who are not Original Members or descendants of Original Members bom after June 22, 2002.

Council adopted the resolution. Coyne and Way and an unknown number of members were dropped from PCD payments.

APTN News reached out to SRFN for comment but didn’t hear back.

“We understand that PCDs are important to our members and your families,” said the letter. “If any of the PCD claims are successful, it could affect future PCD payments. PCDs cannot exceed 15% of the annual income from the Settlement Trust.

“Since Canada still controls SRFN’s membership list, Canada can keep adding people to the list who are not beneficiaries of the Settlement Trust. If SRFN is required to pay PCDs to members who are not beneficiaries, it will impact the amount of the PCD that Council can provide each year, and may eventually result in no PCDs being paid.”

The first hearings were held between October and November 2023 and SRFN sent out the letter shortly after.

The parties involved were supposed to present their final arguments in the spring, but instead, Coyne and May filed a retaliation motion against SRFN on Feb. 8.

Lodging a retaliation complaint

At the CHRT, a person can “amend” their initial complaint if they feel they’ve been retaliated against by the person they’ve lodged a complaint about. The high-profile case of Cindy Blackstock, executive director of the First Nations Child and Family Caring Society is an example.

In 2007, Blackstock, along with the Assembly of First Nations, filed a discrimination complaint against the federal government for underfunding the First Nations child welfare system on reserves in all provinces and the Yukon. After that, Blackstock accused the government of retaliating against her.

In June 2015, eight years after first launching the complaint against Canada, the CHRT awarded Blackstock $20,000, the maximum allowed, after determining an official in the office of former minister of what was then called Aboriginal Affairs, retaliated against her over the complaint.

Way argued that “the tone of the letter feels like an attack against the Complainants and those who have assisted them. She claims some portions serve to intimidate or threaten everyone involved in her case. Mr. Coyne concurs that he feels intimidated and alienated by the SRFN’s letter.”

The tribunal agreed.

“The link between the original complaints and the allegation of retaliation is evident,” ruled the tribunal member Athanasios Hadjis who is overseeing the case. “The letter speaks explicitly about the complaints. It gives details about the hearing, including who testified and when.

“It recounts the SRFN’s perspective on the history leading up to its decision to stop providing PCD payments to the Complainants and other members in similar circumstances.

“The letter concludes by informing members of what, in the SRFN’s view, the possible impact would be for the SRFN and its members if the complaints were substantiated.

Ruling on Salt River First Nation

According to the tribunal record, Salt River First Nation “maintains that it is plain and obvious that there is no adverse treatment found in the allegation,” and that the letter, “merely provides a factual account of what has happened in this case…”

“It sets out the names of the Complainants and witnesses. This is a matter of public record. “The letter itself does not deny or revoke any payments,” argued SRFN, “It merely reiterates the SRFN’s formal public position that it has expressed throughout the proceedings that members will suffer undue hardship if the settlement trust income ends up being severely depleted, resulting in reduced PCD payments.”

This argument didn’t convince Hadjis.

“I will allow the hearing to be reopened to hear evidence about the letter,” he wrote.

The hearing on retaliation took place on May 29. Closing arguments will happen in September.

There is another ongoing case at the Federal Court dealing with PCD payments where a member asked for a judicial review of the bands decision to cut off some members. That case is being appealed by the band.