On February 2, 2018 the Supreme Court of Canada (“SCC”) released its decision in Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4, ruling the Williams Lake Indian Band (“Band”) was wrongfully displaced from its village lands, and restoring the decision of the Specific Claims Tribunal (“Tribunal”). The Tribunal had found that the Colony of British Columbia (“Colony”) and Canada owed and breached fiduciary obligations to the Band in relation to the protection of its village lands.
Current Chief Justice Wagner, writing for the Majority of the SCC, upheld the Tribunal’s jurisdiction to resolve specific claims. The SCC emphasized at the outset that “a just resolution of these types of claims is essential to the process of reconciliation.”
Facts and Procedural History
The focus of the Band’s claim was on its village lands at the foot of Williams Lake (Yucwt). This was a place the Band had lived for hundreds of years, where they had houses and a church, where they harvested various resources, and where their ancestors were buried.
In the early days of the Colony, Governor Douglas assured First Nations that Crown officials would stake out and reserve all their occupied village sites. This assurance was accompanied by legislation (Proclamation No. 15) specifying that Indian settlements were not part of the lands available for settlers to pre-empt.
These promises to protect the Band’s settlements were broken. Despite Proclamation No. 15 prohibiting the pre-emption of Indian villages, beginning in 1860, settlers started recording pre-emptions to Yucwt. And despite the local Magistrate’s knowledge of the Band’s use of Yucwt, colonial officials took no steps to mark these lands out as reserved from pre-emption, or call into question the illegal pre-emptions. As a result, the Band was left landless and starving, and forced to take refuge at a nearby mission.
In 1871, the Colony joined Confederation. The Band continued to raise its concerns to Crown officials and others. In 1879, Chief William wrote an open letter that was published in the British Colonist stating:
The land on which my people lived for five hundred years was taken by a white man; he has piles of wheat and herds of cattle. We have nothing ─ not an acre. Another white man has enclosed the graves in which the ashes of our fathers rest, and we may live to see their bones turned over by the plough!
In 1881, Indian Reserve Commissioner Peter O’Reilly came to Williams Lake to meet with Chief William and his people. O’Reilly acknowledged mistakes were made with the land, but informed the Band that Canada could not interfere with “white men’s rights.” Instead, he allocated a reserve at the head of the Lake (i.e., the Bates Estate, now known as Sugarcane). O’Reilly did not inquire into or attempt to challenge the pre-emptions at Yucwt.
In 2008 Canada enacted the Specific Claims Tribunal Act (“Act”) and established the Tribunal with the distinctive task of resolving First Nations’ historical grievances. In 2009, after Canada had repeatedly refused to negotiate a resolution of the claim, the Band proceeded to the Tribunal. In 2014, the Tribunal validated the Band’s claim. Canada applied for judicial review to the Federal Court of Appeal (“FCA”). The FCA found that Canada’s allotment of the Bates Estate remedied any possible breaches of duty, and dismissed the Band’s claim. The Band appealed to the SCC.
The Band’s appeal was the first occasion for the SCC to consider Canada’s specific claims policies, the Act, and any decision from the specialized Tribunal mandated to hear and make binding decisions on these historical grievances.
The SCC’s Decision
I. Respect for the Tribunal’s Processes and Decisions
The SCC ruled the Tribunal’s decisions on all matters of fact, mixed fact and law, and law are entitled to deference and respect (i.e., a reasonableness review applies). The SCC recognized the uniqueness of these kinds of historical claims − claims that, due to limitation periods, will rarely come before the courts − and noted the Tribunal is entitled to a “measure of flexibility and adaptation” in applying legal doctrines to these claims. The SCC emphasized the Tribunal is made up of a highly specialized group of superior court judges and is particularly suited to decide the legal issues that arise in these claims. The SCC recognized the Tribunal will continue to develop expertise and familiarity with the historical, cultural, anthropological and archaeological issues that arise.
II. First Nations’ Interests in Land and the Crown’s Fiduciary Duty
The Majority began its discussion of fiduciary law by confirming that the fiduciary relationship between the Crown and Indigenous peoples in British Columbia arose prior to Confederation and is grounded in the assertion of Crown sovereignty. The existence and breach of the Crown’s duty in any given case will depend on the specific facts of the claim. In order to establish the Crown’s fiduciary duty, the Band had to show it had a “specific or cognizable” interest over which the Crown assumed discretionary control. The focus is on the interest that is vulnerable to the fiduciary’s action or inaction. The SCC agreed with the Tribunal that the Band’s interest in Yucwt constituted a specific and cognizable Aboriginal interest in land and that the Crown had assumed discretionary control over this interest. In so finding, the SCC emphasized that the Crown’s fiduciary duty is not a duty writ large to, for example, ensure that First Nations obtain reserve lands. Rather, the Crown’s duty is to act in relation to the specific interest at issue (here Yucwt) and to meet the standard of conduct required in relation to that interest.
The Majority emphasized there is no expectation that the Crown as a fiduciary will deliver a particular result, but the fiduciary must act with loyalty, good faith, and full disclosure, and as a person of ordinary prudence in managing his or her own affairs. To see if the Crown discharged its duty, one must consider the actions the Crown took in relation to Yucwt, not in relation to other lands, or to the Band’s interest in general. Here, the Colony’s failure to take any steps to protect Yucwt, and Canada’s failure to take any steps to challenge the unlawful pre-emptions so that Yucwt might be reserved, did not meet the standard.
The SCC confirmed that First Nations do not need to have a finalized reserve or proven title for their interest in land to be “cognizable” such that it attracts the Crown’s fiduciary duty. The Band had a tangible, practical and cultural connection to Yucwt, anchored in its historic use and occupation. The SCC ruled that this was an established form of Aboriginal interest that would have been, and was, apparent to the officials charged with making decisions about reserve creation. This kind of interest in land was also recognized in Colonial laws and policies, which required Indian settlements be protected from pre-emption.
The Majority found that while the Crown’s fiduciary duty includes consideration of the Crown’s broader obligations, the interests that the Tribunal had to reconcile in this case were the Band’s long-standing interest in Yucwt and the settlers’ “unlawful pre-emptions.” The SCC stated the Tribunal is in the best position to fairly reconcile these interests as it has an understanding of the historical context and the individual circumstances, including the connections between Crown officials and settlers. It was reasonable to balance these interests in favour of the Band.
III. Canada’s Responsibility for Colonial Wrongs
The Act authorizes the Tribunal to consider claims based on wrongs committed by the colonies. In this regard, s 14(2) of the Act includes an “extended meaning” of Crown: “Crown” includes the colonies to the extent that the legal obligation or the liability relating to its breach became Canada’s responsibility. In other words, the Act says that in some circumstances Canada can be responsible for the legal failures of the Colony.
The Tribunal noted that both the Colony and Canada recognized the Band’s interest in Yucwt, both had assumed discretionary power to affect the Band’s interest, and both owed the Band fiduciary duties. On the issue of s 14(2) the Tribunal had reasoned the legal obligations of the colonies that became the responsibility of Canada “are those that became obligations of Canada on confederation, and for which Canada would, if in the place of the colony, have been in breach.”
The Majority concluded that though sparse on the issue of s 14(2), the Tribunal’s reasons taken as a whole, and read alongside the materials and submissions before it, adequately explained the basis of its decision: a colonial fiduciary obligation that became the responsibility of Canada for the purpose of s 14(2) is one that mirrors a post-Confederation fiduciary obligation owed by Canada. Here, both before and after Confederation, the Crown had to act with regard to the same Aboriginal interest, exercising the same discretionary power, in the context of the same fiduciary relationship. The Majority found that what transferred at Confederation was not the obligation, but rather the discretionary power to affect the beneficiary’s interest.
The Majority also considered how the evolution of Canada’s specific claims policies supported holding Canada responsible for colonial wrongs. The Tribunal’s view of s 14(2), said the Majority, gave effect to the federal government’s decision to address specific kinds of historical injustices committed against Indigenous peoples by the Crown, be it a colony or Canada.
Importantly, the Majority interpreted “Crown,” as used in the Act, from an Indigenous perspective. The SCC noted that First Nations’ understandings of the Crown are rooted in their historical relationships, and never depended on a distinction between the Crown (Colony) or the Crown (Canada). There is continuity in the Crown’s fiduciary relationship with Indigenous people that extends before and after Confederation. Accordingly, the “Crown” must be treated as a “single, continuous and individual entity” when it comes to validating specific claims at the Tribunal.
IV. Dissenting Opinions
The question of the Tribunal’s treatment of s 14(2) garnered dissenting opinions. Justices Rowe and Coté agreed with the Majority on the standard of review, and the reasonableness of the Tribunal’s decision on both the Colony’s and Canada’s breaches of duty. However, these Justices found that more explanation from the Tribunal on how the Colony’s obligations became Canada’s responsibility was required, and would have sent this issue back to the Tribunal for further reasons.
Chief Justice McLachlin and Justice Brown agreed with the Majority that the Tribunal had reasonably concluded the Colony breached its obligations, but were not persuaded that Canada had breached its duty post-Confederation. Unlike the Majority, they did not see that Canada’s fiduciary duty pertained directly to Yucwt. In their view, providing the Band alternate land (the Bates Estate) met Canada’s obligation. In addition, these Justices found the Tribunal’s treatment of s 14(2) unreasonable. They would have sent this issue back to the Tribunal to decide through an analysis of Articles 1 and 13 of the British Columbia Terms of Union, 1871 (by which Canada assumed the debts and liabilities of the Colony existing at the time of Union, and by which Canada agreed to continue a policy regarding reserve lands as liberal as that pursued by the Colony).
For decades First Nations have been calling for an independent body to resolve their historical grievances (including those arising in colonial times) in a just and efficient way, and in a manner that promotes reconciliation. When the Tribunal was established in 2008 there was hope that this day had come. The Band’s experience, however, was that the Tribunal’s decision was only the first step to more time-consuming and costly litigation, brought on by Canada’s refusal to accept the Tribunal’s decision. The SCC’s decision sends a strong message that the Tribunal has the mandate and skill to resolve these claims, and that its decisions will be given respect by the courts.
In the SCC’s decision we also see a maturation of the principles of fiduciary law and recognition that Indigenous peoples’ connection to and interest in their lands is a specific interest. One piece of land is not interchangeable with another. The Crown’s fiduciary duty is not owed at large, it attaches to First Nations’ interests in specific lands: lands they historically used and occupied and in which they have tangible, practical and cultural connections. This concept is basic, but First Nations have too often been faced with Crown positions denying their interests in their lands on account of the lands not being reserve lands, or not being marked out on the ground, or not having been occupied on a year round basis, even when Crown officials at the time would have known about these interests. These arguments are no longer tenable.
Finally, the SCC reminds us of the need to consider the concept of the “Crown” from an Indigenous perspective, where there is no obvious dividing line between the Colony and Canada. When it comes to colonial claims submitted to the Tribunal, where the interests at issue and discretionary power are the same pre- and post-Confederation, Canada will be responsible for the wrongs.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.