Winnipeg Free Press - PRINT EDITION

Reserve fighting city in court

Shoal Lake band wants to quash water deals

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A northwestern Ontario Ojibwa community has followed through on a pledge to take the City of Winnipeg to court over a plan to sell water and sewage-treatment services to neighbouring municipalities.

Lawyers for Iskatewizaagegan Independent First Nation, also known as Shoal Lake No. 39, said Wednesday they have gone to Manitoba Court of Queen's Bench to prevent the city from concluding service-sharing deals with West St. Paul and Rosser municipalities.

Shoal Lake, which straddles the Manitoba-Ontario border, has served as the source of Winnipeg's drinking water since 1919, when a 155-kilometre aqueduct was built to carry water from Indian Bay to the city. Iskatewizaagegan First Nation has long maintained Winnipeg did not obtain consent to use this water, although a neighbouring band, Shoal Lake No. 40, has no such dispute with the city.

Since 2005, Winnipeg Mayor Sam Katz has advocated selling water-treatment services as a means of generating revenue for the city. The first set of deals finally took shape in 2011, when the city confirmed its intention to extend pipes to West St. Paul and also reached an agreement in principle to extend services to the CentrePort development in Rosser.

Iskatewizaagegan warned the city to hold off on those deals, arguing the city has no right to sell Shoal Lake water. The First Nation is now attempting to launch a judicial review that could bring its dispute into court later this year, lawyer Renee Pelletier said.

"This is Shoal Lake 39's water and Winnipeg does not have the right to use it," said Pelletier, whose Toronto-based firm, Olthuis, Kleer, Townshend LLP, works exclusively in the area of First Nations law.

Iskatewizaagegan is asking the Court of Queen's Bench to order city council to set aside a December 2011 decision to enter into service-sharing agreements, including one nearing completion with West St. Paul. It also wants the court to order the city to refrain from any more negotiations until it negotiates a settlement deal with the First Nation.

Pelletier claimed service-sharing deals exceed the authority granted to the city nearly a century ago, when the aqueduct was under construction. Iskatewizaagegan also retained the right to control the use of its resources when it signed Treaty No. 3 in 1873, she added.

Canadian courts have recently determined that water is a First Nations resource, just like land, Pelletier said.

"The city has not done its homework as far as the First Nation is concerned," she said.

Compared to a statement of claim, which can take years to get to court, a judicial review can result in a court appearance in a relatively short period. Pelletier said she hoped to be in court within a year.

She said her firm decided not to seek a court injunction because no service-sharing deal is in existence yet.

The city's deal with West St. Paul should be complete within the next few weeks, said Winnipeg chief administrative officer Phil Sheegl, adding he was not aware of any papers filed by Iskatewizaagegan.

The CAO said he was not concerned about a legal battle. "We've done our due diligence and we feel comfortable with our position," he said.

Katz also said city lawyers believe the First Nation does not have much of an argument.

If Iskatewizaagegan is successful, however, West St. Paul may be stymied in its plans to develop North Perimeter Park, a patch of riverfront land owned by the City of Winnipeg. As well, a city-provincial deal to extend services to CentrePort would be on hold.

Republished from the Winnipeg Free Press print edition March 15, 2012 B1

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