KENT MCNEIL, an emeritus law professor, says Canada's mistreatment of Indigenous peoples goes far beyond residential schools.

Lac Seul and many other cases ignored Indigenous rights,

Why do Indigenous peoples have to go to court to get compensation for government acts that are so obviously wrong … ? Why aren't these well-documented wrongs simply acknowledged and compensation paid because that is the right thing to do?

Mistreatment of Indigenous peoples and communities by the Canadian and provincial governments has been taking place ever since the founding of this country. Countless examples in addition to residential schools can be given. A recent instance is highlighted in the Supreme Court's decision on July 16 in the Southwind case. The facts as found by the trial judge and accepted by the Supreme Court should shock every Canadian.

As the city of Winnipeg grew early in the 20th century, more electrical power was required. To supply that need, the governments of Canada, Manitoba and Ontario decided to build a dam at the outlet of Lac Seul in northwestern Ontario, raising the level of the large lake by 10 feet. The problem was that the Lac Seul First Nation (LSFN) community is located on the shore of the lake on a reserve that had been set aside for them in accordance with Treaty 3, entered into by the Anishinaabe and the Crown in 1873. Construction of the dam would cause part of the reserve to be permanently flooded.

The disastrous implications for the LSFN were ignored.

The project went ahead without their consent, without lawful authorization, and without compensation (totally inadequate compensation was paid 14 years later).

The dam was completed in 1929. Seventeen per cent of the reserve — 11,304 acres (4,575 hectares) — was flooded. In the words of the Supreme Court, “Homes were destroyed, as were wild rice fields, gardens, haylands, and gravesites. Fishing, hunting, and trapping were all impacted. The LSFN was separated because one part of the Reserve became an island. And, despite the sacrifices suffered by the LSFN to make the hydroelectricity project possible, the Reserve was not provided with electricity until the 1980s.”

The court described this as “unlawful and egregious conduct, even by the standards of the time.” The trial judge had ordered the federal government to pay $30 million to the LSFN as compensation, but the Supreme Court decided this was not enough. They sent the case back to the trial judge to recalculate the amount based on the value of the land for the hydroelectric project.

The Southwind case can be compared with another case, Peter Ballantyne

Cree Nation, arising out of flooding of reserve lands. In the 1930s and '40s, Canada authorized the construction of two hydroelectric dams on the Churchill and Reindeer rivers in northern Saskatchewan. The dams, which the Peter Ballantyne Cree Nation (PBCN) did not consent to, flooded part of the reserve that had been set aside for them pursuant to Treaty 6 (1876) and interfered with their treaty and Aboriginal rights to hunt, trap and fish. Their legal claim against Canada for compensation was dismissed because they brought the action too late, after expiry of the one-year limitation period in the applicable provincial statute. In 2017, the Supreme Court refused permission to appeal this decision.

So why did the LSFN win and the PBCN lose? Because the Ontario and Saskatchewan limitations of actions statutes differ. In Ontario, claims for breach of the Crown's fiduciary obligations aren't barred by passage of time, whereas in Saskatchewan they are. This creates a situation where federal liability for wrongs done to Indigenous peoples depends on the law of the province where the wrong was committed, despite the fact that Indigenous peoples and their Aboriginal and treaty rights are under exclusive federal jurisdiction. Figure that out.

And why do Indigenous peoples have to go to court to get compensation for government acts that are so obviously wrong and that Canadians continue to benefit from? Why aren't these well-documented wrongs simply acknowledged and compensation paid because that is the right thing to do? Instead, governments spend large sums of taxpayers' money to oppose Indigenous peoples in court, sometimes all the way up to the Supreme Court.

The treatment of Indigenous children in residential schools is now common knowledge. Other abuses, such as the deliberate flooding of Indigenous lands and communities, are less well known. Yet governments perpetuated these abuses in the name of us all. Canadians need to stand up and take responsibility for the shameful treatment of Indigenous peoples and start making amends. Paying compensation for past wrongs is one way to do this, but pushing governments to acknowledge Indigenous territorial and governance rights and negotiate resource and power-sharing agreements with them would be a further step toward reconciliation.