Excluding some Salt River members from payments ‘is unreasonable’

Salt River First Nation’s policy of excluding some members from annual payments is “unreasonable” and must be reviewed, a federal judge has ruled.

A 2021 band council resolution had declared that treaty payments of $800 would be paid only to people who were members as of 2002 and their descendants, not anyone who became a member at a later date.

The year 2002 is important as Salt River’s 2001 treaty settlement agreement with Canada set compensation based on the First Nation’s June 2002 population.

The 2021 exclusion affected dozens of people whose Indian status – and membership eligibility – had changed since 2002, through intervening amendments to the Indian Act and other legislation. For example, some recent changes have extended Indian status to grandchildren of Indigenous women who married non-Indigenous men.

Richard Shanks, one person affected by that exclusion, took the First Nation to federal court, arguing – in the judge’s words – that the 2021 band council resolution “unreasonably disenfranchised him” from receiving the $800 payment.

Shanks argued that the original agreement simply states that treaty payments are due to members, and nowhere is any wording included that limits the payments to people on the membership list in June 2002.

In a written ruling circulated this week, the judge agreed.

Justice Ann Marie McDonald said that all the legal language available to her, in the agreement and various First Nation laws, made clear that the band council “applied an unreasonable interpretation of ‘member’ in the band council resolution, which renders the band council resolution unreasonable.” 

The First Nation had argued that as its compensation agreement with Canada is based on its 2002 membership – 757 people, known as “original beneficiaries” – paying sums to people given membership after that date was “diluting” the payment received by people in the original group or their descendants.

In 2016, the First Nation passed a resolution ordering council to “take every step necessary to protect and preserve the land and the trust fund established based on the original 757 beneficiaries and stop dilution of the benefits.”

A year later, 145 people who became members after 2002 were told not to expect annual payments. One of the people affected, Dave Heron, told the CBC at the time that he was being used “as a bargaining chip” to get the federal government to provide more money.

“I feel like a second-class native in my own band,” Heron told the broadcaster.

On Wednesday this week, Heron said McDonald’s ruling showed that “finally, something is happening.”

“I think they’re going to still fight it,” Heron told Cabin Radio, “which is sad, because they’re spending a lot of money for members of their own band.”

Brad Laviolette, the First Nation’s acting chief, said on Wednesday he needed to discuss the court’s decision with councillors and the First Nation’s legal team before commenting in any detail.

“I’ve never dealt with those issues, they are ongoing things from the last several years,” said Laviolette, who became acting chief late last year after the suspension of Salt River’s newly elected chief, Toni Heron.

McDonald quashed the band council resolution and ordered it to be “reconsidered by reference to these reasons,” referring to her written ruling.

Shanks was awarded his costs.

The First Nation’s executive director was separately reported to have resigned this week.

CKLB said Elizabeth Westwell told the broadcaster: “I have enjoyed my work as CEO immensely and want nothing but the best for future of the Nation.”