Garden River First

Nation

NEWSLETTER

APRIL 2019

48TH ANNUAL LNHL

The 48th annual LNHL tournament kicked off on

Monday March 11-14, 2019

FINISH READING ON P. 6-7

UPCOMING WORKSHOPS

GRFN Wellness Centre – programming and calendar of

events

FINISH READING ON P.10-11

NEW POST-SECONDARY

DEADLINE New as of March 6, 2019 APPLICATION DEADLINE for Spring/Summer has changed to March 29, 2019

WESTERN BOUNDARY LAND CLAIM

Garden River lawyer Kim Fullerton provides updated information on the western boundary land claim.

FINISH READING

ON P.2-5

2

WESTERN

Boundary land claim

Garden River First Nation Western Boundary Claim

January 15, 2019

Kim Alexander Fullerton

Barrister & Solicitor

Professional Corporation

Introduction:

Kim Alexander Fullerton Barrister and Solicitor Professional Corporation (KAFBS) is a law firm that represents

only First Nation clients

My Firm actively advocates for First Nation’s interests primarily in land claims against Canada and Ontario

We also provide advice and draft trust agreements for clients to ensure claims settlements are spent wisely.

Background:

In 2003 the Garden River First Nation (GRFN) started this law suit seeking financial compensation($)

GRFN is currently in Court mandated negotiations with Canada and Ontario to settle the Western Boundary

Claim (out of court settlement process)

In November 2013 Ontario, in a written offer, unilaterally assessed the value of the claim between 1.57 million

and 3.36 million (and wanted a “degree of doubt” discount of 50%)

In September 2014 GRFN requested a meeting with KAFBS to determine a way to assess the value of the

Western Boundary Claim

Main Issues:

The main purpose of this presentation to provide information to GRFN Members regarding the amount of the

offer that we received last fall (October 31, 2018)

3

And to begin discussions around ratification by Members (vote)

And what to do with the compensations ($)

Why No Land?:

If this is a “land claim” why isn’t GRFN getting the land back?

The lawsuit GRFN brought in 2003 did not seek the return of the land

It sought financial compensation

The reason the lawsuit did not seek the return of the land was because of the decision in a lawsuit brought by

Chippewa’s of Sarnia First Nation

Chippewas of Sarnia Band v Canada (AG), 195 D.L.R. (4th) 135, was a decision of the Court of Appeal for

Ontario rendered on December 21, 2000

In that decision the Court of Appeal held that even though the First Nation had unextinguished aboriginal title

to the land (The surrender had been illegal) they could not get the land back

The Court ruled that the current land owners were “bona fide purchasers for value without notice” and were

not to be disturbed in their possession of the land

The Court of Appeal found that proper compensation was financial – money

The Western Boundary lands have been sold to third parties and a part of it turned into an Indian Reserve for

Batchewana First Nation

There is no legal way to get the land back except buying it

If the GRFN proceeds with the Pennefather Claim against Canada and Ontario it will be possible to have

thousands of acres of land added to your Reserve

Land to the north and east of your current reserve taken in 1859 by the Pennefather Treaty

They took over 2/3 of your reserve at that time

The Approach:

KAFBS did not believe the offer or the approach by Ontario and Canada was fair or reasonable

They proposed determining a value for the wrongfully taken land circa 1865 and simply bringing that amount

forward to today’s dollars using INAC’s Indian Trust Account interest rates

It did NOT take into account the Loss of Use suffered by GRFN since 1853

KAFBS believed that a more reasonable approach to determining a fair and reasonable value on the claim was

to assess the current value of land and the historic value of the land in 1853 and employ a rental model

formula (the Proxy Model)

That yields both the current fair market value of the land plus loss of use for the over 166 years that you have

not had the use of land

Loss of use is the inability to use, and derive benefit from, premises or articles as a result of negligence or other

wrongdoing of another

Proxy Model:

KAFBS recommended the Proxy Model to determine loss of use

GRFN engaged a real estate expert (Steve Thompson) and an economic expert (Dr. Carl Beal) to assist with

valuation.

KAFBS also recommended that an independent real estate appraiser be engaged to provide an historical and

current unimproved market value of the claim lands

Ontario and Canada agreed to this approach and a good part of 2014-2015 was spent negotiating a Terms of

Reference and cost-sharing (1/3-1/3-1/3)

4

Key Steps:

The independent appraiser, Hal Love Real Estate Advisory Services, was hired and began work in September

2015

He produced a preliminary report in December 2015 and a draft final in February 2016

Both Canada and Ontario had agreed to this approach but had not bothered to engage experts of their own

But once they saw the draft final report from Hal Love they began to criticize the methodology and the

outcome

They then both retained their own experts and began trying to tear apart Hal Love’s report

We wasted all of 2016 because Canada and Ontario waited to retain their experts until after the fact

By Spring of 2017 we had finally agreed on current fair market value and the historic appraisal values

We then made an offer to Canada and Ontario to settle this litigation using Hal Love’s numbers and “The

Proxy Model”

The Proxy Model:

The “Proxy Model” for valuing loss of use (LOU) uses an annual rate of “rental” return which is then applied

to the historical land values in order to estimate loss of use for all of the claim lands

The model starts with the historical value of the land (derived from the land appraisal) and multiples this

value against a Real Rate of Return (RRR)

The value of land is adjusted over time to account for any change in real land values and inflation. In each year

an income is derived

Current Fair Market Value:

From Hal Love’s Report the current fair market value (unimproved – land only) is:

$7,788,318

Combined LOU and FMV=$ 16, 405, 268.00

Total Offer From GRFN:

We also asked for:

$37, 000 for the costs of a ratification vote (standard amount) that we get for a Specific Claim vote;

$12,875 for the costs of Hal Love’s last revision of his Report (which we paid for); and

$1,640,526 – 10% of the settlement to cover the First Nations costs of perusing this action for the last couple of

decades (including legal fees, research reports, hiring experts, internal meetings of the FN, etc.)

GRFN Offer to Settle:

The total offer GRFN made to Canada and Ontario on June 12, 2017 to settle the Western Boundary Litigation

was then:

$18,095,669.00

Canada and Ontario:

For a number of reasons, including the Ontario Election and Canada’s lawyers involvement in the Annuity

Lawsuit, it took over one year for them to respond

Finally in a conference call on October 31, 2018, they made their offer

5

Global Offer- October 31, 2018:

$18, 740, 000.00

Canada: $9,050,000

Ontario: $9,050,000 + $640,000 ($550,000+$90,000 pre-judgment interest)

Extra $550,000 comes from the 2003 agreement with Ontario to permit the opening of the by-pass

The offer exceeds what we asked for and is approximately 25 times what Canada and Ontario were originally

offering (50% of $1.57 million or about $750, 000)

We recommend that GRFN agree to put the offer to a vote of Membership

And that is what Chief and Council are doing

Ratification:

The offer needs to be ratified by GRFN Members by a vote

They will likely request a “double majority” vote

50% + 1 of your registered Members 18 Years of age or older on the day of the vote must vote

50% + 1 of those members that do vote must vote Yes

Double Majority Example: 100 Members – 51 must vote – 26 must vote in favour

Uses for Compensation:

Pay GRFN debts related to Western Boundary Claim

Per Capita Distribution (PCD) to Members

War Chest for the Pennefather Treaty (the Mother of all your claims)

Community Projects” hockey arena; business park; housing; infrastructure; cultural initiatives etc.

Education, Health, Other suggestions?

Next Steps:

KAFBS is in the process of drafting a Settlement Agreement (SA) with Canada and Ontario

The SA should be ready to be initialed in February

KAFBS is drafting Voting Guidelines which will govern the voting process

Like voting for Chief and Council; vote in person or by mail-in ballot

And perhaps internet voting

We should be able to hold the vote in April 2019 or shortly thereafter

If the Members of GRFN ratify the SA then Ontario and Canada will also ratify (sign) the SA

Land Western Boundary Claim Area:

6

The 48th Annual LNHL Kicked off Monday March 11-14, 2019

Garden River Braves – Tyke

Garden River Little Rapids – Tyke

Garden River Boys – Novice Competitive

7

Garden River Girls – Atom

Garden River - Bantams Competitive

Garden River - Novice (No Picture) – Landon Belleau, Braylin Belleau, Hudson Chiblow, Caeson Cress, Alexa

Golden, Chance Jones, Cedar Jones, Dominic Pine, Ashlyn Rickard, Keinen Robertson, Cain Sayers-Pine, James

Stevenson.

Garden River- Atom (No Picture) – Ben Belleau, Logan Michano-Belleau, Akira Barry, Nemki Jones, Dawnisha

Nolan, River Sayers, Brynn Thibault, Daeson Vincent, Zaylen Boissoneau, Emily Redbreast, Jacob Achineepineskum,

Kiara.

Garden River – Peewee (No Picture) – Trey Topash, Avery Zack, Arthur Vincent, Wayne Jones-Reid, William Sayers,

Diondre Nolan, Mary Plastino, Trenton Thibault, Tristan Holzwarth, Lloyd Hicks, William Towegeshif, Kailyn Elliot,

Blaine Polson, Madison Copenance.

Garden River – Midget (No Picture) – Chase Southwind, Brandon Southwind, Zak Nolan, Allie Nolan, Jared Stevens,

Billy Lesage-Belleau, Bracen Pine, Brianna Marchand, Quentin Jones, Ethan Belleau, Darwyn Mckay, Kadin Belleau,

Cole Rodgers, Colin Simpson, Tiger Trapper, Aiden Garveatt.

8

To learn more about the

dreamcatcher

foundation visit their

website at:

www.dcfund.ca

Congratulations to ALL Players and Teams from the Garden River First Nation. You

have represented your community well and played some good hockey. Keep up

the good work.

Thank-You Dreamcatcher Fund for your sponsorship for the

2018-2019 Hockey Season. – Lexi and Gunner Pine

The Garden River

Education Unit is

looking for any used

DVD’s for children.

DVD’s can be dropped

off in the library.

Thank-you!!

9

10

11

12

13

14

15

16

LOOKING FOR:

USED, GOOD CONDITION

DVD’S

CAN BE DROPPED OFF

AT THE GR LIBRARY

2019-03-05 MONTHLY MEETING

https://vimeo.com/322769834

PASSWORD: L1vegardenr1ver

17

18

19

20

21

22

23

NEW

DATE

24

25