Louison v Ochapowace First Nation

Background

The applicant, Mr. Louison, was originally a member of Ochapowace and had a home allocated to him by Ochapowace’s Agricultural Board in 1997. The applicant also entered into an agricultural lease agreement with Ochapowace for another tract of land in 2001. The lands leased to the applicant were comprised of Ochapowace reserve land and fee simple land held by Ochapowace’s “Specific Claim Trust”. The applicant defaulted on his lease obligations to Ochapowace shortly after taking possession of the leased lands, and the Ochapowace Lands Office commenced enforcement proceedings against him, first seeking arrears of rent and later seeking possession of the lands.

In 2003, the applicant commenced Federal Court proceedings against several individuals including Ochapowace’s chief at that time. He claimed to be the beneficiary of certain trusts and interests under the Royal Proclamation of 1763 in relation to the lands at issue. The Federal Court dismissed that previous action. In 2007, the applicant successfully obtained membership with the Kahkewistahaw First Nation, seeking membership “upon learning the history of the land”. He ceased to be a member of Ochapowace in 2008. Meanwhile, Ochapowace continued with its attempts at removing the applicant from the lands, serving him with additional Notices to Vacate in 2008 and 2009.

In 2009, the applicant commenced proceedings in the Saskatchewan Court of Queen’s Bench against Ochapowace and its land-holding company, seeking a declaration of “Indigenous title” to the lands in dispute. The Court of Queen’s Bench struck this claim on the basis that the applicant had no standing to bring a claim of Aboriginal or “Indigenous title”. The Court of Queen’s Bench noted that the applicant had asserted that “Indigenous title” differed from Aboriginal title in that it is both an individual and a communal right, and that the applicant had purported to sue “in a representative capacity on behalf of all Indigenous Peoples of Saskatchewan”. However, it found no factual or legal basis for either assertion. This decision was upheld by the Saskatchewan Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied.

Once the applicant’s application for leave to appeal to the Supreme Court of Canada had been denied, Ochapowace issued a fresh Notice to Vacate asking that he leave the lands by July 17, 2013. Ochapowace also commenced legal proceedings in the Court of Queen’s Bench to have the applicant evicted, but these proceedings were adjourned pending this decision of the Federal Court.

Federal Court decision

The applicant asserted that he rightfully possesses the lands in dispute as a member of the Kahkewistahaw First Nation and a descendant of the original holders of the land, and claimed that Ochapowace’s interests in the lands were “illegitimate”. The applicant claimed that his great-great-grandfather was the hereditary chief of the Kahkewistahaw and that the lands were previously occupied by his family. He also asserted that the lands were taken from Kahkewistahaw in violation of Treaty No. 4 and their subsequent transfer to Ochapowace was illegal.

The Court found that since the lands in issue are either Ochapowace reserve lands or lands held by its land holding company in fee simple, the applicant was essentially trying to establish Aboriginal title through his judicial review application. The chief of Kahkewistahaw confirmed that it had not asserted any Aboriginal title claim to the lands at issue and it declined the applicant’s request to become involved in the proceedings. Kahkewistahaw’s chief also confirmed to Ochapowace’s chief that Kahkewistahaw would not challenge Ochapowace’s claim to Aboriginal title to the lands in question, although it might seek compensation from the federal government through the Specific Claims Policy.

The Court held that the applicant could only succeed if he had standing to assert Aboriginal title to the lands in dispute. The Court found that the applicant had not provided any reason why the earlier findings of the Saskatchewan Courts should not apply to this case, which found he lacked the standing to do so, so the Federal Court dismissed the application on this basis.