In Canada v Williams Lake Indian Band, 2016 FCA 63, the Federal Court of Appeal set aside a 2014 ruling of the Specific Claims Tribunal, which had upheld the Williams Lake Indian Band village’s site specific claim. The Specific Claims Tribunal had ruled that the Colony of British Columbia had breached its lawful obligations, when it failed to protect Williams Lake Indian Band’s main village from settler pre-emption, and reserve these lands for the Band. It had further held that Canada failed to fulfill its fiduciary obligations to the Band, when it did not take measures to return the village lands to them.
In its decision, the Federal Court of Appeal considered four issues: whether the Colony of British Columbia had breached its pre-emption legislation; whether the Colony had breached a fiduciary duty by allowing the village lands to be settled; Canada’s liability for the Colony’s breaches under the Specific Claim’s Tribunal Act; and whether Canada’s post-Confederation allotments of Band reserves remedied any potential breaches and fulfilled any possible fiduciary duties owed. The Court held that it was unnecessary to set out its conclusions on the first three issues because the fourth issue was determinative of the judicial review.
With respect to the fourth issue, the Court held that the Tribunal’s conclusion that Canada had breached its fiduciary duty was based on two flawed assumptions. The Tribunal had incorrectly assumed that the best interest of the Band, as a beneficiary, was in the allotment of the Village Lands as a reserve. Secondly, the tribunal had erroneously assumed that Canada needed to take steps to challenge the sales of the Village Lands, and remove impediments to the allocations of reserves on Village Lands, even though Canada had no power to void these sales. The Federal Court of Appeal made several findings, on the basis of the evidentiary record, supporting the conclusion that Reserve Commissioner Peter O’Reilly had upheld the honour of the Crown and discharged its fiduciary duties to the Band. According to the Court, O’Reilly had discharged this duty by appropriately balancing the interests between the settlers and the Band and considering the “reality existing on the ground” when deciding where to allocate reserves for the Band. This “reality” was that certain parcels of land had already been pre-empted by white settlers, and the Province had not resolved the issue in the Band’s favour, despite O’Reilly’s efforts to convince it to do so. The Court further held that, even if there had been any breaches of a fiduciary duty by Canada, the subsequent actions of Canada in purchasing alternative reserve land as a replacement for the village lands, and the acceptance of this land by the Band, adequately remedied these breaches. In the result, the Court effectively substituted its decision for that of the Tribunal and dismissed the Band’s claim.
A notable feature of this decision is that, despite s. 34 of the Specific Claims Tribunal Act, which states that the Tribunal’s decisions are binding and not subject to appeal (but are subject to judicial review), the Federal Court of Appeal’s treatment of the Tribunal’s decision resembles an appeal. The Court explicitly described the proceeding as an appeal, and took the unusual step of substituting its own decision for that of the administrative decision-maker, rather than sending the matter back to the Tribunal for reconsideration. Even though it acknowledged the standard of review on questions of fact to be reasonableness, the Court gave limited deference to the tribunal’s findings of fact, essentially substituting its own factual findings for the Tribunal’s in several cases.
This case raises challenging questions about the proper constitutional role of courts, their appropriate function on judicial review, and the relationship between administrative tribunals and the judiciary. The Specific Claims Tribunal has considerable historical and legal expertise in aboriginal claims, is mindful of First Nations perspectives and the need for reconciliation, and has been mandated by Parliament to adjudicate specific claims. Unique evidentiary rules also apply to the Tribunal, in that it may accept any evidence, including oral history, whether or not this would be admissible in a court, and it may hold hearings in First Nations communities. Arguably, the Federal Court of Appeal’s decision to show limited deference to the Tribunal, and its unwillingness to decide issues related to the colony’s liability, presents future obstacles in the way of First Nations seeking to resolve their site-specific claims.
Canada v Williams Lake Indian Band, 2016 FCA 63
Lisa C. Fong and Alanna Mackenzie