Ermineskin Cree Nation 60 Million Settlement Frequently asked Questions
1) How much of the 60 million is going to Lawyers?
None. There is no requirement to pay a portion to legal costs under the Settlement Agreement. Lawyers for ECN working on this matter are paid for their qualified professional services under a specific ECN budget.
2) What happens if we vote no?
The Settlement Agreement would become subject to possible further negotiation or more likely trial with Canada. These would both be costly and time-consuming, and could result in Ermineskin receiving less money or no money at all. This Settlement Agreement is related to an action brought in 1993 and started out with many issues to resolve in the overall claim.
3) How will the money be distributed?
Council worked together to come to a consensus on the allocation of the 60 million. There would be an allocation of 10% to the Neyaskweyahk Trust, 20% PCD Per CapitaDistribution, and 70% to immediate needs/operations/programs and services of the Nation upon a successful ratification vote and acceptance of the 60 million as payment from Canada.
4) Where will voting take place?
Voting will take place on November 30 at the NOK building for in person poll from 9 am to 8 pm.
Voters will also be able to vote online by registering online starting November 23, 2021 at 9:00 a.m. Eligible voters who wish to vote by virtual process will be asked to register at https://efdx.ca/ecn. Please provide picture identification. Virtual voting will end at noon on Nov 30.
5) Who do we contact if we have more questions that were not asked in the Zoom Meetings, or I was unable to attend the Zoom meeting?
Please contact the External Affairs Department for more information.
6) Is this about the Cows and Plows?
No. Cows and Plows is a separate action that is being pursued through a specific claims process. It is in the stage of being submitted as a claim to Canada.
7) Does this mean we will be giving our land away?
No. There is no transaction that is occurring under this Settlement Agreement besides the transfer of 60 million from Canada to ECN in regards to issues under the Oil and Gas claim brought in 1993.
8) Does this court case have to do with treaty, and will it negatively affect our Treaty Rights?
The case does rely on Treaty rights to a certain extent, but dismissing the action pursuant to the settlement will not be prejudicial to those rights. It will only prevent Ermineskin from pursuing the specific claims that were made against the Crown in the Oil and Gas claim.
9) What is the timeline of significant factors in relation to this court case, what was done, when it was done?
Short details of the timeline of events leading up to now.
The ECN Oil and Gas Action were commenced in 1993. The action covers a broad range of claims relating to the Crown’s management of Ermineskin’s oil and gas resources and the revenues from those resources up until that date and the action falls within a few categories.
• The Money Management claims were dismissed through a lengthy trial process that occurred from 2000- 2005. Although ECN lost at trial, ECN and Canada agreed that Canada would no longer manage ECN’s oil and gas revenues and the NT Trust was created.
• The Oil and Gas claims include: “Inequitable production”, “Royalty” claims, “Survey” claim (Pigeon Lake boundary) and the “Export” claim. The Export claim was also dismissed based on a statute of limitation (time limitation) regarding when the action was brought forward.
• “Programs and Services” claim was severed from the main action pending resolution of other claims.
• “PCD” Claim
In 2014 ECN began discussion with the Crown on resolving the remaining claims outside of Court through formal mediation. Preparation for mediation by both parties took time and mediation occurred in 2018 in Toronto for 5 days facilitated by Supreme Court judge Lacobucci. Even after compromise on both sides, Judge Lacobucci suggested a number that he thought was fair and both parties agree in principle to that number subject to approvals.
Approvals took time on Canada’s side and approval of the Settlement Agreement is now needed on ECN’s side. A successful ratification vote on November 30 will be the approval needed by ECN to proceed.
Please note there other actions that overlap with the Oil and Gas claim, but those actions will not be included in the settlement except for the parts of the actions that make the same claims that are made in the Oil and Gas claim. The purpose of the settlement is to resolve all of the claims that are made in the Oil and Gas action and no other claims.
10) At this point can we ask for more money?
The mediation that took place involved lengthy briefs and significant preparation. The parties were far apart on coming to an Agreement and the mediator suggested a number in the middle which was 60 million. A Memorandum of Understanding was reached in principle and ECN and Canada left mediation in good faith. It would cost more money to ECN to further negotiate and it is likely that trial could occur. There is a real risk that a trial could result in Ermineskin receiving less money, or none at all (or even being found liable to pay the Crown for its costs, which could amount to millions of dollars).
11) Why don’t we ask for more if we should get more?
Time and costs are important factors to consider. It took from 2014 until now to not only reach a Settlement Agreement but to move it along to be at the stage of ratification.
It would be a difficult and costly process that could result unfavorably to ECN. Mediation is an alternative dispute resolution process where a third party (the mediator) assists or facilitates the disputing parties to come to an agreement on a settlement. A successful mediation results in a settlement agreement.
An unsuccessful mediation would result in either further dispute resolution or ultimately trial. ECN and Canada were disputing parties on the Oil and Gas claim that resulted in the Settlement Agreement that is being put before ECN citizens to vote to accept.
The parties were not close on their respective positions on the amount to be Settled. The Mediator’s assistance in getting both parties to agree on a number after some compromise had occurred cannot be overlooked. Following mediation there was also approvals that needed to be met and this also took time as well.
12) How does the payout of the 60 Million compare to the money that was lost in the initial incident?
This is a complicated question, and raises legal issues, because assessing a “loss”, or “damages”, in court involves a legal test, and depends on the evidence. The main allegation in the Oil and Gas action is that the Crown should have made sure that Ermineskin got more money from oil and gas production on the Pigeon Lake Reserve. Numerous different actions, or failures to act, by the Crown are claimed.
The Court has already dismissed some of the claims. With respect to the remaining claims, the Court may not accept that the Crown ought to have acted differently in all of these instances, or any of them.
Also, how much more money Ermineskin would have got if the Crown had acted properly is something that Ermineskin would have to prove in court and does not have a definite answer. Expert evidence will be required to prove the amounts involved, which will be difficult and expensive. Finally, the Court may decide that the case was brought too late for the Crown to be responsible for all of the losses (even though the claim was brought in 1993, many of the events took place much earlier). Therefore, there is a great deal of uncertainty with respect to the amount that Ermineskin “lost” and what part of that loss would be recoverable in court.
Essentially, the amount could be anything from zero to hundreds of millions of dollars. In other words, there is a very real risk that, if the action went to trial, Ermineskin could recover less than the $60 million settlement amount. There is also a possibility that Ermineskin could recover significantly more. The risk and uncertainty are factors that should be taken into account in considering whether the Settlement Agreement should be approved.
13) Question: What factors were considered in arriving at the proposed 60 million as a Settlement Offer?
Answer: It is important to understand that the number put forward by the mediator was not an assessment of Ermineskin’s claim. Rather, it was a suggestion of a reasonable compromise between the parties given all of the strengths and weaknesses of the case, and the uncertainty surrounding the potential outcome if the claims went to court.
With respect to the strengths of the case, the mediator had Ermineskin’s very lengthy mediation briefs with arguments in support of the claims and their amounts – essentially a “best case scenario” for the claims. He also had private conversations with Ermineskin’s negotiating team about the strengths and weaknesses of the claims.
With respect to the weaknesses of the case, the mediator had the Crown’s very lengthy mediation briefs with arguments concerning the weaknesses in Ermineskin’s claims and arguments against the amounts put forward by Ermineskin – essentially a “worst case scenario” for the claims. He also had private conversations with the Crown’s negotiating team about the strengths and weaknesses of the claims.
Although we cannot know exactly what factors the mediator considered important in coming up with his compromise number, he would have considered many of the factors that Ermineskin’s lawyers have mentioned as giving rise to uncertainty about the result if these claims go to trial (for example, limitation periods) and the expense involved for both parties if the claims went to court.
• General questions or concerns can be directed to the External Affairs Department (780) 585-3741:
• Collin Wildcat, ext. 260, (780) 839-8754 or email collin@ermineskin.ca;
• Danika Lightning danika@ermineskin.ca or (780) 996-6727.
