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Saskatchewan First Nation lawsuit seeks control over land affected by farming

In this Oct. 19, 2010 photo, hay bales sit in prairie wheat fields outside Saskatoon, Saskatchewan.

Rob Gillies/THE ASSOCIATED PRESS

A Saskatchewan First Nation is suing the province and the federal government to try to regain some control over traditional land it says has been whittled away by agricultural and industrial development.

A lawyer for the Carry The Kettle band said it's the first time the courts have been asked to deal with how the spread of farming on the Prairies has affected treaty rights in southern Saskatchewan.

"It's speaking about not just one project or a few projects or even a particular industry," said Estella White. "We're really calling attention to the conduct of Saskatchewan and Canada as a whole."

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There are almost 3,000 Carry the Kettle members near Sintaluta in southeastern Saskatchewan. The band claims almost all the southern part of the province as traditional territory and signed Treaty 4 in 1877 at Fort Walsh in the Cypress Hills.

That treaty, the band argues, guarantees the ability to continue to live a traditional lifestyle on land beyond the reserve. That land, however, was quickly granted to homesteaders and is now almost completely divided up into the familiar prairie farmland checkerboard.

Land on which band members can fish, hunt and trap has been whittled away almost as completely as their rights, said White.

"Members have to travel for days to find land and resources they can use for traditional activities."

White emphasizes the band isn't seeking to expropriate farmland.

"We do not propose to remove private Saskatchewan individuals from their interests in the land."

The lawsuit argues the federal and provincial governments owe the band something for allowing a century of agriculture to take over land that the First Nation was supposed to be able to use.

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Neither level of government has filed a statement of defence.

In an email, a federal spokeswoman said "We are committed to honouring Canada's treaty obligations to Indigenous people and working collaboratively to renew the relationship based on recognition of rights, respect, co-operation and partnership."

Plans to expand oil pipelines on or near the Carry the Kettle reserve finally drove the issue to court.

"The expansion plans really led the council and advisers to focus on not just what's happening with the pipeline but what's the big picture here," said Robert Janes, another of the band's lawyers.

"There's no doubt that the pipelines ... really caused them to look hard at the problems they were facing and that's what led to this."

Both Enbridge and TransCanada Corp. have lines in the area. Enbridge's Line 3 has already been approved to run Alberta crude into the United States.

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White said the band is asking for a greater voice in future land-use decisions and more control over what Crown land is left in the area. It also wants an injunction to stop both governments from approving future developments – including more pipelines – until they address the band's concerns.

Mostly, White said, the First Nation wants Saskatchewan and Ottawa to sit down for serious negotiations.

"That's a really big focus of the remedy – to bring them to the table and talk to Carry the Kettle about how to address these issues."

Financial compensation is also on the table, although no amount has been suggested.

Janes said the case gets to the nub of how governments and First Nations differ over consultation.

"Governments in the prairie provinces take the view that their duty is to talk about specific projects at specific times. Questions about larger-scale land management – these are not things that they're willing to talk about."

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