Saving the Specific Claims Tribunal

By Bruce McIvor

Case Comment on Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4

There are two general categories of negotiated claims in Canada: comprehensive claims which include Aboriginal title, rights and self-government; and specific claims, which are based on specific historical wrongs done to First Nations.

This week, the federal government announced it will replace the existing the comprehensive claims process. Two weeks ago, the Supreme Court saved the specific claims process.

Background on Specific Claims

In the 1980s the federal government acknowledged its long history of failing to protect Indigenous Peoples’ interests, especially in relation to reserve lands, and that it was unfair that these historical wrongs remained unresolved because of the operation of limitation periods in Canadian courts.

Consequently, the federal specific claims process was created. It allows First Nations to file historical claims with the federal government on the hope that Canada will acknowledge an outstanding lawful obligation and negotiate a settlement.

Instead of resolving historical wrongs, the specific claims process spread resentment and cynicism. First Nations worked hard to research and file hundreds of claims that disappeared into a black hole of the federal government’s making.

After half-hearted and ineffectual efforts to reform the specific claims process, in 2008 the federal government passed legislation creating the Specific Claims Tribunal, an independent administrative tribunal made up of superior court judges responsible for making final, binding decisions on the validity of specific claims and the amount of compensation owed First Nations. While there is no appeal of the Tribunal’s decisions, the legislation allows for judicial reviews by the Federal Court of Appeal.

What it is about

The Colony of British Columbia was founded in 1858 on the unlawful premise that the British Crown owned Indigenous lands and had the right to give away these lands to so-called settlers.

The first step for a settler in acquiring title to Indigenous lands was to file a pre-emption. While most Indigenous land was up for grabs, as far as settlers were concerned, an exception under colonial law and policy was that settlers could not pre-empt occupied Indigenous village sites. This prohibition was routinely ignored by settlers and government officials.

When British Columbia became part of Canada in 1871, the federal government assumed responsibility for creating Indian reserves and the province of British Columbia agreed to transfer ‘Crown lands’ as required. This arrangement led to the federal and provincial governments’ creation of the Joint Indian Reserve Commission which, through the 1870s and 1880s, travelled the province investigating the status of Indian reserves.

As part of the Commission’s work, it came to light that the Williams Lake Indian Bands’ (WLIB) village site on the shores of Williams Lake had been pre-empted beginning in the 1860s. Instead of insisting that the province cancel the pre-emption, the federal government acquired different lands for the Band’s reserve.

Soon after the Specific Claims Tribunal opened for business, WLIB filed a claim to its lost village site. The Tribunal eventually decided in favour of WLIB. The federal government took the case to the Federal Court of Appeal which set aside the Tribunal’s decision and dismissed the First Nation’s claim. WLIB appealed to the Supreme Court.

What the Court said

The Supreme Court zeroed in on two issues: (1) how much, if any, deference was owed the Tribunal by a court reviewing one of its decisions?; (2) did the federal government, by operation of the Specific Claims Tribunal Act, assume liability for the colonial government’s failure to protect the village site?

On the first issue, the Court held that the Tribunal is owed a high degree of deference. The Tribunal is made up of specialized superior court judges responsible for assessing claims steeped in the complexities of fiduciary law and based on complicated and nuanced historical facts. The Court concluded that the Tribunal has a distinctive task requiring significant flexibility. Consequently, a reviewing court must show the Tribunal significant deference when reviewing one of its decisions.

The second issue, i.e. whether the federal government was liable for the colonial government’s failure to protect the lands from pre-emption, was hotly debated by the Court. The majority (5) of justices concluded that in this case Canada was liable and while the Tribunal could have provided better reasons, its decision should be restored.

In separate reasons, two of the justices agreed with the majority in most part, but would have sent the matter back to the Tribunal to provide a more detailed explanation as to how the federal government was liable for the wrong of the colony.

A further two justices dissented from the majority’s decision and questioned both whether the federal government had breached its fiduciary duty to WLIB and whether it could have inherited responsibility for the colonial government’s failure to protect the village site.

In the end, the Tribunal’s decision validating WLIB’s claim was restored. The Tribunal will now proceed to phase two of the hearing which will decide how much compensation is owed the WLIB for the loss of the village site and how the compensation should be apportioned between the federal and provincial governments.  Importantly, WLIB may not be able to recover any money owed by the province because an award by the Tribunal is not enforceable against the province.

Why it matters

The Court’s decision is hugely important, not only for First Nations in British Columbia but for the entire country.

There are numerous similar ‘village site’ claims in British Columbia based on the colonial government’s failure to enforce its own laws and the federal government’s failure, after confederation, to protect First Nations’ interests in their lands. These claims, and potentially other claims dating from the colonial period, can now move forward both in the specific claims process and, if need be, at the Specific Claims Tribunal.

Outside of British Columbia, the decision is powerful support for arguments based on the indivisibility of the Crown’s fiduciary obligations to First Nations and the Crown’s obligation to protect specific Indigenous lands. While the decision is informed by British Columbia’s unique reserve-creation process, it will likely play a prominent role in helping settle similar outstanding questions across the country and embolden First Nations to pursue their own claims from the colonial period.

Ultimately the decision is most important for saving the Tribunal. By not only disagreeing with the Tribunal, but by paying it so little regard as to decide the matter itself, the Federal Court of Appeal undercut the Tribunal’s authority, processes and integrity. Had the Supreme Court upheld the Federal Court of Appeal’s decision First Nations would have abandoned the Tribunal en masse.

The Court’s support for the important work of the Tribunal and its conclusion that the Tribunal’s decisions are owed a high degree of deference has breathed new life into the Tribunal. It has restored First Nations’ confidence in the Tribunal’s processes and rekindled hope that the Tribunal will deliver justice to hundreds of First Nations across the country.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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