Province sues over provincial park

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This article was published 29/01/2017 (3197 days ago), so information in it may no longer be current.

The province is suing a First Nation over who should own a tiny, rarely visited provincial park in southeastern Manitoba.

Last month, a federal arbitrator ruled in favour of Buffalo Point First Nation’s right to Birch Point Provincial Park. The decision was the first time a reserve’s title to a provincial park has been recognized by any level of government.

The arbitrator ended a 25-year battle over claims to ownership of the park.

In her Dec. 22 ruling, federal arbitrator Sherri Walsh wrote, “I find that the Birch Point selection is eligible to be set apart as reserve (land) in accordance with the principles for land selection and acquisition, having regard for the wording… of the Manitoba Treaty Land Entitlement Framework Agreement.

“In accordance (with that), I also find that the province is required to take the necessary action to give effect to this determination,” Walsh ruled.

Earlier this month, the province acted to protect public interests in the land, filing an application to overturn the arbitrator’s ruling with the Court of Queen’s Bench. A hearing is set for Feb. 10.

Buffalo Point First Nation, a small Ojibwa reserve on the border with Ontario and Minnesota, is best-known for its resort properties and its contentious legal battles with non-indigenous cottagers who own homes within its boundaries as well as bitter internal disputes with its own 56 indigenous members. It is located about 200 kilometres southeast of Winnipeg.

By facing off with the province, Buffalo Point is now the spearhead in an unprecedented battle, very likely to encourage other First Nations to press claims to land in provincial parks.

The ruling was the first time the province had been ordered to hand over ownership of a provincial park to a First Nation, noted Chris Henderson, executive director of the Treaty Land Entitlement Committee of Manitoba Inc.

“This decision is a game-changer, and it was a victory for TLE in Manitoba,” Henderson said.

The committee provides technical assistance to First Nations owed land in compensation for being shortchanged when their reserves were established.

Brokenhead Ojibway First Nation is now closely eyeing the court challenge. It claims 900 acres in Whiteshell Provincial Park.

Buffalo Point’s claim to the provincial park also predates the Treaty Land Entitlement Committee process. The First Nation made its claim in 1994 based on the 1873 Treaty 3, which it signed.

Since then, the First Nation’s hereditary chiefs have consistently pressed the claim, over the province’s objections. Current Chief John Thunder claims the park as part of Buffalo Point’s traditional holdings, a commonly held observation. Even the province’s provincial park website states the area was historically known to be frequented by indigenous people.

The park, created in 1961 with 32 acres, is on the opposite shore of Buffalo Bay from where the First Nation is located. The First Nation claim is for 105 acres at the location, including the 32-acre park.

Small as it is, Birch Point is strategically significant to the province. It’s the only public access point with a boat launch on the portion of the Lake of the Woods that’s located in Manitoba.

The province’s application states the ruling is in error partly because the province’s long-standing opposition is well-known. For 20 years, Manitoba has refused to discuss provincial parks with First Nations, insisting that, with some exceptions, they are exempt from Treaty Land Entitlement Committee talks.

There are indications, however, the province’s position may now be softening, despite the appeal.

In an emailed statement last week, the province’s top spokeswoman for the Progressive Conservative government suggested the appeal is more of a bid to buy time to review the ruling than an outright rejection of it.

“As the decision is based on an exception to the general rule that land in existing provincial parks is not eligible for selection, we believe it is reasonable for us to take the time necessary to review the decision and make a determination on how best to proceed. To that end, the Manitoba government filed requisite paperwork before the appeal deadline in order to afford us more time for review and decision,” Olivia Baldwin-Valainis said.

First Nations leaders, however, are preparing for battle.

“This is so unfortunate and contrary to the honour of the Crown and contrary to Manitoba’s very own the Path to Reconciliation Act, which was adopted in the Manitoba legislature last spring before the 2016 general election,” Henderson said.

He said the province’s position is baffling given the opposite tact it takes with industrial activity in some provincial parks. He cited mining permits, for example, in the northern Manitoba Grass River Provincial Park, which is the focus of ongoing environmental criticism.

Brokenhead Ojibway First Nation threatened to blockade Whiteshell Provincial Park in 2010. Their claim is to Whiteshell sites that contain petroforms — small rock formations — that are important to Brokenhead.

Chief Jim Bear said by text Tuesday its relations with the province over such land issues are contentious no matter what party is in power.

“It’s unfortunate the province is not willing to work with First Nations to resolve TLE. They appear to be putting their interests before that of First Nations,” he said.

As for the petroform sites, the First Nation is concerned about heavy tourism traffic in the area.

“One would assume the province would want to preserve the sacred Whiteshell area in the interests of reconciliation,” Bear said.

The longer the province is not willing to reconcile, the more chances of the sacred sites being desecrated and vandalized.”

Nineteen First Nations are owed nearly a million acres under treaty land entitlement in Manitoba. The Treaty Land Entitlement Committee framework set up a process 20 years ago to speed up the settlements, which involve negotiations with federal and provincial levels of government.

So far, about half the claims have been settled.

alexandra.paul@freepress.mb.ca