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ABORIGINAL LANDS - Types - Reserve lands - Land claims - Practice and procedure - Appeals and judicial review

Wednesday, September 20, 2017 @ 8:41 AM  


Applications by Canada for judicial review of the Special Claims Tribunal’s decisions that it could consider historical treatises based on judicial notice and that Canada breached its legal obligation to the respondent First Nation in respect of Reserve lands. The First Nation filed a claim pursuant to s. 14 of the Specific Claims Tribunal Act arising out of the creation of Columbia Lake Indian Reserve No. 3 (Reserve). The First Nation alleged that the federal Crown had breached the fiduciary duty it owed to the First Nation by excluding from the Reserve, in 1886, 960 acres of land originally allocated by the Reserve Commissioner. It was also alleged that the Crown failed to enforce a 1915 order made by the McKenna-McBride Commission allocating an additional 2960 acres of land to the Reserve. The proceeding before the Tribunal was bifurcated into two phases. The first phase involved holding a hearing to render a decision on the validity of the claim. The second phase centred on the issue of compensation that might be owed to the First Nation. At the validity phase of the hearing, the parties entered an agreed statement of facts and common book of documents. Neither party adduced oral history or expert testimony. The Tribunal later advised counsel that it consulted various historical treatises that were not in the record, relying on judicial notice. Canada objected to the Tribunal’s reliance on the documents, but its objection was dismissed. In its final decision, the Tribunal found that the First Nation had established a breach of a legal obligation in respect of both the survey land and the additional land.

HELD: Applications allowed. The Tribunal’s consideration of the additional historical documents violated Canada’s participatory rights to know and respond to the case to be met. The value of information in the documents identified by the Tribunal was such that Canada could not fairly be expected to refute any and all aspects of the information, particularly when the Tribunal’s view of the relevance of the information was unknown. The nature and scope of the additional material was such that Canada required notice of what facts the Tribunal proposed to judicially note and notice of what issue each fact pertained to. The additional material was dispositive of the issue of who bore responsibility for the failure to implement the allocation of land as recommended by the McKenna-McBride Commission and was used to fill the evidentiary gap surrounding the availability of recourse to the Secretary of State for the Colonies.

Canada (Minister of Indian Affairs and Northern Development) v. Akisq’nuk First Nation, [2017] F.C.J. No. 836, Federal Court of Appeal, M. Nadon, E.R. Dawson and J. Gauthier JJ.A., September 1, 2017. Digest No. TLD-Sept182017007