This is an update to my March 19, 2013 post on Re Kitselas First Nation, the Specific Claims Tribunal's first substantive decision. In documents filed with the Federal Court of Appeal on March 21, 2013, Canada asks the Court to quash or set aside the Tribunal’s decision because, according to Canada, the Tribunal erred in its finding that Canada had a fiduciary duty to the Kitselas First Nation in the reserve creation process.
While there is no right to a full appeal of a Specific Claims Tribunal decision, parties may ask the Court to judicially review a decision on the basis that the Tribunal made errors of fact and law. This will be the first time the Court has been asked to review a decision from the new Specific Claims Tribunal.
At stake for Kitselas First Nation is both the further delay in having their claim resolved and the possibility that the Tribunal’s decision could be quashed.
There are also important issues at stake for all First Nations. The Court will address the question of the scope of the Tribunal’s jurisdiction and the standard of review that will apply when a Court is asked to review a Tribunal decision. It will also address the extent of Canada’s fiduciary duty to Aboriginal people at the time reserves were created in B.C.
First Nations across Canada will be watching with interest to see how the Court addresses these central questions of the Tribunal’s role and the Crown’s fiduciary responsibilities to Aboriginal people.
Kate Gunn is a lawyer at First Peoples Law Corporation. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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