KENORA — Three First Nations in the Kenora area will get to present evidence they say proves that they are the rightful owners of Anicinabe Park.
Niisaachewan Anishinaabe Nation, Wauzhushk Onigum and Obashkaandagaang — or Washagamis Bay — have filed a joint land claim against the City of Kenora and the federal government, arguing the property, which is currently owned and operated by the city, was wrongfully sold to the municipality by the federal government in 1959.
The defendants attempted to get the case dismissed, arguing the limitation period in which to file it had expired. But in a July 14 ruling, Justice Robin Lepere said it was not “plain and obvious” that the conditions necessary to bar the claim from proceeding had been met.
“This was a significant legal ruling in that it basically paved the way for the Anicinabe Park case to be heard on its merits,” said Luke Hildebrand, a lawyer at Headwaters Law who is representing the three First Nations.
“So, it's a significant win for the Nations to get their day in court.”
Essentially, he said, the judge agreed with their position that the claim is based on treaty rights and constitutional issues, which aren’t time sensitive.
“If there is question as to whether the lands were reserve lands in 1959, or whether the Nations’ claim arises from a treaty right, I must dismiss the defendants’ motions (to dismiss the land claim),” Lepere wrote.
The First Nations are arguing that the park, which is about two kilometres from the Kenora city centre and operates today as a full-service campground, was purchased by the Crown in 1929 and was treated as reserve land before being sold to Kenora 30 years later “without consultation or consent,” according to a press release issued by the three communities.
Court documents say the three First Nations used the lands for thousands of years for feasts, trading, fishing, harvesting and holding sweat lodges and ceremonies and continued to do so “well into the 20th century.”
Hildebrand said the land is very important to the communities.
“It's a place where they stayed to visit their children at residential school,” he said. “It’s a place they had community when hotels in Kenora denied them accommodation because they were Indigenous.”
“In 1959, when that land was sold out from under them, it left an open wound that has never been healed.”
Mya Horley, senior communications advisor for the City of Kenora, told Newswatch the municipality’s position is that “at this time, the city is not aware of any evidence that Anicinabe Park was made a reserve for the plaintiffs out of Treaty 3 negotiations or amendments.”
“(The city) has been unable to obtain any such evidence from the plaintiffs, the Crown or government and local archival records.”
“The city will therefore proceed to defend the claim to ownership of Anicinabe Park while it remains open to discussions of alternative resolution satisfactory to the parties.”
“Anicinabe Park has been, and will always be, a gathering place,” Wauzhushk Onigum Chief Chris Skead was quoted as saying in the First Nations’ media release. “This case is not about excluding anyone from the park; it’s about correcting a historic injustice, a blight on Kenora’s history and doing what’s right.”
The park was the site of a weeks-long armed occupation in 1974.
“Ever since then, folks have been writing letters, holding ceremonies, doing what they can to get that land back,” Hildebrand said. “This particular legal action is the culmination of the Nations’ work over a couple of years to compile what they need to put together the legal claim.”
All parties, including the federal government, told Newswatch they would rather see the matter settled away from the courtroom.
“The city strives for reconciliation at all times and continues to be open to discussions of alternative resolution regarding ownership of Anicinabe Park,” Horley said, adding that, at this point, “there is no compromise to be considered by the plaintiffs regarding the future use and ownership of Anicinabe Park.”
“Whenever possible, we aim to resolve claims through respectful dialogue and negotiated settlements, rather than through the courts,” Eric Head, a spokesperson for Crown-Indigenous Relations and Northern Affairs Canada, said in an email to Newswatch. “Negotiated outcomes continue to be the Government of Canada’s preferred approach.”
“I think the ball is very much in the City of Kenora’s court, which the Nations have said repeatedly that they're open to finding ways to work on this together,” Hildebrand said.
“We're just hoping that that invitation gets answered at some point in time.”
No date has yet been set for the claim to be heard, Hildebrand said.
