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19/12/1997

Indian Claims Commission Releases Report on Eel River Bar First Nation Claim

Ottawa (December 19, 1997) - The Indian Claims Commission (the Commission) released its report yesterday on the claim of the Eel River Bar First Nation (New Brunswick). The Commission had been asked to inquire into and report upon whether the Government of Canada properly rejected the specific claim submitted by the First Nation. The Eel River Bar First Nation's claim concerned damages and losses suffered by the Indians to their fishing economy as a result of the establishment of a dam in 1963 by the Town of Dalhousie. The dam was built to form a headpond, or reservoir, on the reserve to pump fresh water from the Eel River to the Town of Dalhousie. This new supply of freshwater would increase the industrial activity in the area, create more jobs and generally improve the local economy.

At the time the dam was first proposed, the people of the Eel River Bar First Nation depended on the river for their livelihood. In particular, many members of the First Nation supplemented their income by harvesting and selling the clams which were abundant on the flats at the mouth of the river For this reason, the Band had opposed the dam from the beginning, fearing they would be left with a severely reduced fishery. The Band allowed construction of the dam to proceed only after the Town had agreed to provide employment for Band members in the new and expanded industries that would result from the dam's construction. If these jobs were not provided, the First Nation would be entitled to compensation for the loss of lands flooded and the damages to the fishery. This agreement in principle was the subject of negotiations with the Band, the Town and Indian Affairs officials beginning in 1963. Construction of the dam began as negotiations continued.

Along with the predicted flooding of reserve land, the dam brought many other changes which had a profound effect on the Eel River Bar First Nation. They lost over 70% of their most important daily food source, the soft-shelled clam, as well as the mainstay of their commercial economy. Whether as a result of systemic discrimination, high unemployment, or other factors which were beyond the Band's control, the employment promised to the Band to offset these hardships never materialized.

In 1968, the New Brunswick Water Authority (NBWA) took over the title to the dam from the Town of Dalhousie. The NBWA wanted to increase the size of the reservoir, but Indian Affairs officials advised that the initial claim would need to be settled before any further development would be allowed. In 1970, after seven frustrating years of protracted negotiations with the Town, the Band Council finally entered into an agreement with the NBWA which provided compensation for reserve lands taken for the dam project and for the Band's damages to its livelihood. The Band was to be paid $49,000 in exchange for a permit to the pipeline right of way, pumping station and access road as well as the expropriation of 61.57 acres of reserve land for a headpond. Other provisions included a pumping fee ranging from $10,000 to $27,375 per year, depending on how much water was pumped out of the new headpond. These figures were to be renegotiated after 20 years (a new agreement was concluded in 1995).

Although the Band never did receive compensation in the form of employment in the local industries, evidence shows that Indian Affairs officials acted as persistent advocates on behalf of the Band from the moment the dam was proposed until the Agreement was struck in 1970. While the Commission agreed with the First Nation that their treaty rights to fish had been infringed upon (Treaty of 1779), the 1970 Agreement was intended to compensate the First Nation for the damages caused to its fishery. Further, the Commission concluded that the Crown did not breach its fiduciary duty because, as the report states, the deal "was not so foolish and improvident that the government ought to have withheld consent to the permit and expropriation".

The Commission therefore found that there is no outstanding lawful obligation owed by Canada to the First Nation on the basis of a breach of Treaty or on account of the trespass on reserve lands from 1963 to 1970.

In conclusion, the report notes that the negotiations surrounding the dam were very difficult, and the construction of the dam and protracted negotiations resulted in hardship for the people of the Eel River First Nation. There were a number of parties involved in these negotiations - the First Nation, Canada, the Town of Dalhousie and the NBWA. The Commission's mandate is limited to determining whether a valid claim exists against Canada only and, in this case, has concluded that Canada does not owe an outstanding lawful obligation to the First Nation.

As in any Inquiry, historical and/or oral evidence was presented by representatives of the Eel River Bar First Nation and Canada, and was given thorough consideration by the Commission. The ICC was established in 1991. Its mandate is: to inquire, at the request of a First Nation, into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations; and to provide mediation services on consent of the parties at any stage of the claims process.

To download the report PDF