Kinonjeoshtegon First Nation accuses provincial government of turning much of its lands to ‘unusable muskeg’
CBC Indigenous: A First Nation along the western shores of Lake Winnipeg is suing the provincial government after it alleges flooding caused by a dam over 80 years ago “effectively confiscated” a chunk of its land.
Kinonjeoshtegon First Nation accuses Manitoba of violating its constitutional, Indian Act and treaty rights after it built a dam without the community’s consultation or consent, according to a statement of claim filed Thursday at the Manitoba Court of King’s Bench.
The dam was built on the Jackhead River in 1942 as part of a joint project that Canada and Manitoba had embarked on the year before in order to boost muskrat populations in areas of the province and acquire more fur, the lawsuit says.
The community, formerly called Jackhead First Nation and located about 230 kilometres north of Winnipeg, says the dam raised Jackhead River’s water levels and flooded over 240 hectares (600 acres) of its land.
The flooding destroyed the First Nation’s hay fields, trapping lines, as well as hunting and fishing areas within the community and its traditional territories, turning much of the reserve land into “unusable muskeg,” the suit alleges.
None of the allegations have been proven in court. A statement of defence has not yet been filed.
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Kinonjeoshtegon’s reserve lands are made up of one area of about 1,200 hectares (3,000 acres) along Lake Winnipeg, and another of about 140 acres west of that, which the suit says Canada released to the First Nation in 1930 for hay land.
Manitoba requested about three hectares (eight acres) of Kinonjeoshtegon’s land to Canada to build the dam, saying it would cause flooding in a “small portion” of the reserve lands, but the First Nation was not consulted and it did not consent or surrender the land, the suit says.
Canada granted permission for Manitoba to use the land without compensating the First Nation, the suit says. Kinonjeoshtegon alleges both Canada and Manitoba knew that the action breached Treaty 5 and the Indian Act.
After the dam was completed in August 1942, Kinonjeoshtegon says it elevated levels of the Jackhead River, forcing water into vegetated areas along its streams.
The flooding prevented fish from swimming upstream to spawning grounds in Lake St. George and Lake St. Andrew, the suit alleges. It also negatively affected natural habitats of land animals, resulting in a loss of Kinonjeoshtegon’s traditional hunting grounds.
Kinonjeoshtegon alleges Manitoba was “fully aware” of the flooding and the damage it caused to the First Nation.
Project ‘a complete failure’: suit
While the muskrat population in the area did initially increase thanks to the project, both Canada and Manitoba acknowledged about five years after the dam was built that the project had been “a complete failure,” the suit says.
Conversely, the muskrat population was found to be “in rapid decline” around that time, as Manitoba had failed to understand or study the ecological impacts that the dam would cause, according to the statement of claim.
However, the dam remained and the flooding continued as Manitoba refused to give up the permission agreement from Canada to use Kinonjeoshtegon’s land, the First Nation alleges.
It says a series of agreements were made in order to prolong that agreement over several decades.
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The damming of the Jackhead River created artificially high water levels for Lake St. George and Lake St. Andrew, which are upstream from the flooded reserve land, creating commercial and recreational fishing opportunities for people in the province, the suit says.
It also led the province to sell cottage lots along the shores of the two lakes to non-Indigenous people for personal and recreational use, the suit says.
“From the outset, it was clear that Manitoba’s ulterior motive was to create and maintain high water levels of the Jackhead River for the benefit of non-Indigenous recreational, tourism and fishing at Lake St. George and Lake St. Andrew,” the suit says.
While Kinonjeoshtegon has negotiated and settled with Ottawa for granting Manitoba access to its land to build the dam without consulting it, the First Nation says in the suit that Manitoba has refused to enter into such negotiations.
Government staff still trespass on lands: suit
Manitoba owed a duty of care to Kinonjeoshtegon to make amends and/or compensate the First Nation for the dam’s damaging effects, but has not made any attempt to do so, the suit alleges.
The First Nation accuses provincial representatives of continuing to trespass on Kinonjeoshtegon’s land to monitor Jackhead River’s water levels in order to ensure and maintain the artificially high levels which support recreational uses of the lakes.
Kinonjeoshtegon’s suit seeks general, aggravated and punitive damages, as well as several court declarations, including one that says Manitoba has and continues to trespass and create a nuisance on its lands and has destroyed them through negligence.
A spokesperson told CBC Monday the province has not yet been served the lawsuit and has no comment at this point.