Darcis et al. v. Manitoba et al., 2012 MBCA 49

In this case, the Manitoba Court of Appeal clarified a stated question of law from a Northern Flood Agreement (NFA) arbitrator regarding what constitutes a South Indian Lake claim (or “SIL claim”). The central issue in the appeal was a claim by an individual who had left the community, where the damage or loss had not occurred within "the SIL Trapline Zone". Having ruled against the claimant, the arbitrator raised the case to the Court of Appeal. Hamilton J.A. determined that, because the NFA is essentially the arbitrator’s home statute, the standard of review would be reasonableness, and that the geographic restriction on SIL claims created by the decision was unreasonable. The appeal was allowed.

In 1977, the NFA was entered into between several parties, including the Manitoba Hydro Electric Board and the Nisichawayasihk Cree Nation (NCN), allowing the SIL community to bring claims for damage caused by hydro-electric development. A newer agreement was created in 1996, including an exception governing SIL claims. The NFA claims at issue in Darcis v Manitoba were first made in 1992 by people who had been displaced as a result of adverse effects of the project. When their collective claim was denied, the appellants made the claims in issue individually. However, the NFA arbitrator determined that when an ordinary resident defined under subsection (b) of the 1996 agreement leaves the SIL community, he or she cannot make a claim because damages did not arise in the SIL trapline zone under subsection (a).  The appellants' position is that the decision in this case has the effect of punishing them for having left South Indian Lake to mitigate their damages.
 

After reviewing the arbitrator’s decision and the NFA, Hamilton J.A. determined that, because the words “regardless of where the damage or loss arose” are included in the introductory paragraph of the 1996 agreement governing SIL claims, the arbitrator’s conclusion unreasonably limited what constitutes an SIL claim. As long as a member of the NCN was ordinarily resident at or near the community of SIL at one of the dates specified in subsection (b) (at the date of the 1996 agreement or at the date the damage arose) the fact that they then left and the damage caused by hydro development did not occur in the trapline zone does not limit their claim. As a result, the appeal was allowed.

Link to Decision

Rebecca Vasluianu

Tony Drake

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