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ABORIGINAL LANDS - Duties of the Crown - Sui generis fiduciary duty

Friday, February 02, 2018 @ 1:24 PM  

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Appeal by the Williams Lake Indian Band (Band) from a judgment of the Federal Court of Appeal allowing Canada’s application for judicial review of a decision of the Specific Claims Tribunal (Tribunal). From 1860 on, settlers displaced the Band from the site of its village and surrounding lands at the foot of Williams Lake. This appeal concerned the failure of the Sovereign of Great Britain and its colonies (Imperial Crown) to prevent the Band’s Village Lands from being taken up by settlers. It also concerned the failure of the Imperial Crown and the Crown in right of Canada to rectify the situation over the 20 years that followed. At issue was the validity of the Band’s claim to compensation under the Specific Claims Tribunal Act (Act) for losses arising from these events. The Tribunal examined the Band’s history in the Williams Lake area and the events surrounding the reserve creation process. The Band’s village and lands, the Tribunal concluded, ought to have been marked out as a reserve under the applicable colonial legislation. The Imperial Crown was under a legal obligation to take the appropriate measures to do so. The Tribunal concluded that the Band had a valid claim because the responsible colonial official in the Williams Lake area had not taken such measures. The Tribunal also determined that, after British Columbia joined Confederation in 1871, federal officials had failed to take appropriate measures to address the consequences of the Imperial Crown’s earlier omissions. This, it found, constituted valid grounds for a specific claim. Before the Tribunal had the opportunity to make a decision on compensation, Canada applied for judicial review of the Tribunal’s validity decision. The Federal Court of Appeal allowed Canada’s application and substituted its own decision, dismissing the Band’s specific claim. In its view, the Crown in right of Canada had not breached a legal obligation to the Band. Further, its eventual allotment of reserve land elsewhere had cured any prior breaches by the Imperial Crown. The Band appealed this decision.

HELD: Appeal allowed. The standard of review was reasonableness. The Tribunal’s decision that the Band had established a valid claim based on the Imperial Crown’s breach of a fiduciary obligation was reasonable. This was a sufficient basis on which to restore its decision to validate the Band’s specific claim. The Tribunal’s determination that the Band had a specific or cognizable Aboriginal interest in the Village Lands, in relation to which the Imperial Crown assumed discretionary control sufficient to ground a fiduciary obligation, was also reasonable. Under colonial law and policy, “Indian settlements” were protected from pre-emption for the use and benefit of the Indians. It was reasonable for the Tribunal to conclude that a fiduciary obligation could arise in respect of the Band’s interest in the Village Lands. The breach of fiduciary obligation at issue in this appeal was not Canada’s failure to deliver a particular result, but the Band was entitled to expect the Crown to act with a view to its best interest when exercising discretionary power that would affect the preservation of its interest in the Village Lands. The method available to Crown officials to protect the beneficiary’s interest in land was, on a more permanent basis, to seek to have the land allotted as a reserve. In light of the nature of the process and the materials and submissions before it, the Tribunal’s reasons adequately explained the bases of its decision that the Band had made out valid grounds for a specific claim based on events in the Colony prior to Confederation. In the face of a statutory definition of “Crown” developed in collaboration with First Nations, it was reasonable for the Tribunal to adopt a view of the circumstances in which a fiduciary obligation could be said to have “become” Canada’s responsibility for the purposes of s. 14(2) of the Act that reflected the continuity of the fiduciary relationship between Indigenous peoples and the “Crown”. The Tribunal’s decision was restored.

Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), [2018] S.C.J. No. 4, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., February 2, 2018. Digest No. TLD-January292018012SCC