'It's indefensible:' Judge weighs land dispute involving former Alberta chief

A federal judge reserved his decision Tuesday in a land dispute between two families on Canada's largest First Nation.

But Justice Michael Manson made it clear he will not be overturning a decision that transferred land from former Blood Tribe chief Harley Frank to another family.

"If you're asking for declaratory relief, that's not going to happen. This court doesn't move down that road and it's not proper for me to do so," Manson told Frank's lawyer.

"If you're asking me to declare that it should be sent back for consideration ... that is typically the relief this court is prepared to grant. It's really extraordinary when we give declaratory relief."

The dispute on the Blood reserve, which is home to 12,500 people in southern Alberta, 250 kilometres southeast of Calgary, involves 600 hectares of prime agricultural land allocated to the Frank family in 1960.

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Although band members can't own property outright, they can have it allocated to them with the approval of the chief and council.

Frank's father, Wilton, staked a claim nearly 60 years ago and then had two years to make improvements on the undeveloped property near the St. Mary Reservoir.

Earlier this year he was informed that the band's land dispute panel had awarded all but two hectares of the Frank property to a family with adjacent land. Frank said the decision was based on the evidence of a hand-drawn map and was approved by the chief and council.

Request for appeal rejected

His request for an appeal was rejected.

"The applicants and their families had always been the registered occupants of these lands. The burden of proof here was on the parties challenging that registration," argued Frank's lawyer, Peter Leveque.

"There is no basis on which this appeal tribunal could have reasonably concluded that this decision had been properly made. That's why we say this decision is so perverse here," he said.

"It's not just unreasonable — it's patently unreasonable. It's indefensible at any level."

Blood Tribe lawyer Paul Reid told the court that the process was signed off by Frank when he was a member of the band council in 2007.

He said the land traditionally belonged to the Three Persons family and the Franks were essentially living there on a long-term lease. He said there will likely be more land disputes in the future.

"There's a shortfall of land on the reserve and as a result of that shortfall of land on the reserve we see this increase in disputes between parties," Reid said.

"There simply isn't enough land to go around and these disputes sometimes are generational."

Reid asked Manson to determine that the process involved in the land dispute was fair.

"The decision was reasonable. They reviewed the record. They made a determination using the informal process that they had the discretion to use," he said.

"The decision should stand."

Frank, who is 68, and several family members attended the hearing.

'What recourse do we have?' says Frank

He's worried that the judge will send it back to the band appeal board for a second time.

"If this is sent back then we're going back to the same people who denied us fair procedure, and that doesn't make sense to me. What recourse do we have?" he asked.

"What do we have to do to prove our story? I doubt that they will change their position."

Frank said his family has always played by the rules.

"We trust chief and council that we were doing the right thing according to their policy. This has been taken away to the point that we feel like leaving ... just abandoning our houses and just leaving."

Frank said if the judge rules against him he will likely attempt to take the matter to the Supreme Court of Canada.

The judge didn't give a date for releasing his decision.

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