On January 30, 2024, the Specific Claims Tribunal (the Tribunal) released its decision in Ahousaht First Nation v His Majesty the King in Right of Canada. In this decision, Justice MacDonald considered Ahousaht’s requests for additional reserve lands at the time of the Royal Commission on Indian Affairs for BC (the McKenna-McBride Commission) and the subsequent Ditchburn-Clark Review Committee (the Ditchburn-Clark Review). The Tribunal found that Canada breached its fiduciary obligations when it failed to take adequate steps to set aside reserves for Ahousaht at the requested locations.
Photo credit: Gordon Lyall
Facts
Ahousaht First Nation is located in and around Clayoquot Sound on the west coast of Vancouver Island. This Claim involves Ahousaht’s requests made for reserve land in two joint processes established by Canada and the Province of BC to review and adjust Indian reserve allotments made by the Joint Indian Reserve Commission (JIRC). These processes were (1) the McKenna-McBride Commission, which operated between 1912 and 1916; and (2) the Ditchburn-Clark Review, which operated between 1920 and 1923. Both the McKenna-McBride Commission and the Ditchburn-Clark Review were mandated to achieve a full and final settlement to the “Indian land question” and had the authority to allot further Indian reserves from available provincial lands where they considered that Indigenous Peoples did not have enough lands reserved for their use.
In 1914, Ahousaht requested additional reserve lands on Vargas Island and an addition to Quortsowe Indian Reserve No. 13 (IR 13) from the McKenna-McBride Commission. In 1922, Ahousaht requested a reserve at Pretty Girl Cove and a further addition to IR 13 from the Ditchburn-Clark Review.
None of Ahousaht’s requests for additional reserve lands were approved by the McKenna-McBride Commission or the Ditchburn-Clark Review.
Photo credit: Gordon Lyall
The Tribunal Decision
Vargas Island
The issue on Vargas Island was whether an Indigenous settlement on the land was established before or after a pre-emption application was filed for the land by a settler in 1912. Provincial law prohibited the pre-emption of “Indian settlements” and any pre-emption that included an Indigenous settlement could be revoked without compensation. There was evidence before the McKenna-McBride Commission that an Ahousaht man had built a house on the land and was living there one year before the settler attempted to pre-empt the same land. The McKenna-McBride Commission did not investigate the legality of the pre-emption and determined that the lands were not available to allot as a reserve.
The Tribunal held that Canada had a fiduciary duty through the McKenna-McBride Commission process to assess the credibility of the parties before it and to inquire with ordinary diligence as to whether the Ahousaht settlement predated the pre-emption application. Had the McKenna-McBride Commission fulfilled its fiduciary obligation to undertake a credibility assessment, the Tribunal held, it likely would have determined that the Indigenous settlement pre-dated the pre-emption. The federal Crown would then have been obliged, as Ahousaht’s fiduciary, to press the Province to cancel the pre-emption record and any subsequent Crown grant and to provide the land to Canada so that it could be made into a reserve. The Tribunal held that Canada failed to meet this standard.
Additions to IR 13
Ahousaht requested additions to IR 13 during both the McKenna-McBride Commission and the Ditchburn-Clark Review. At the McKenna-McBride Commission, Ahousaht requested land on the east side of Bulson Creek at its mouth adjacent to IR 13. Prior to the creation of IR 13, Ahousaht lived along both sides of Bulson Creek and relied on fishing in this area. After IR 13 was created, a cannery was established that prevented Ahousaht from fishing from Bulson Creek. In their testimony before the McKenna-McBride Commission, Ahousaht emphasized that they needed riverside land on Bulson Creek to preserve access to a vital food source in circumstances where their members did not have enough food for the winter. The McKenna-McBride Commission observed that the land requested was subject to a timber lease and therefore was not available for reserve creation and did not approve Ahousaht’s request.
The Tribunal found that the federal Crown had breached its fiduciary duty through the McKenna-McBride Commission by: failing to investigate and consult with Ahousaht to ascertain their needs with respect to the land claimed as a fishing station; failing to evaluate the strength of the First Nation’s interest in the lands and to tailor its response accordingly; and failing to press the Province to assist in considering possible options to meet Ahousaht’s significant needs. The Tribunal held that, when an Indigenous cognizable interest involves the sustenance and survival of a Nation’s members, the Crown’s fiduciary obligations are heavier and extend beyond simply observing that the lands were not available. The Tribunal noted that the Crown could still grant fishing stations in areas covered by active timber leases.
During the Ditchburn-Clark Review, Ahousaht requested an area on the south shore of Warn Bay as an addition to IR 13. The Tribunal found that the land claimed before the Ditchburn-Clark Review was cognizable or “capable of being known” as a fishing station by the federal Crown in 1922. The Tribunal held that the federal Crown breached its fiduciary duty by: failing to investigate and consult with Ahousaht regarding their interest in the south shore of Warn Bay to ascertain their needs; failing to evaluate the strength of Ahousaht’s interest in the fishery at Warn Bay and to tailor its response accordingly; failing to press the Province to assist in considering possible options to meet Ahousaht’s needs including by approaching timber licensees to see if land could be made available for one or more fisheries; and failing to disclose to and consult with Ahousaht regarding the status of their application prior to Chief Inspector Ditchburn’s decision not to pursue the addition to IR 13 with the Province.
Pretty Girl Cove
In 1922, Ahousaht requested a reserve at Pretty Girl Cove before the Ditchburn-Clark Review. The Tribunal held that Ahousaht’s interest in the lands requested at Pretty Girl Cove became cognizable—or “capable of being known” by the Crown—in 1922, but that Inspector Ditchburn did not exercise ordinary diligence in investigating its availability. Rather, Ditchburn assumed that the lands were not available in 1922 because in 1914 the McKenna-McBride Commission had recorded that they were covered by a timber license.
Ditchburn also did not inform Ahousaht or consult with them before deciding not to pursue their request for a reserve at Pretty Girl Cove with the Province. The Tribunal found that Ditchburn was influenced and limited by the Province’s intransigence and that, as Ahousaht’s fiduciary, he ought to have advanced their request for lands at Pretty Girl Cove even if it was unlikely to succeed. This was especially important, in the Tribunal’s view, because the Ditchburn-Clark Review was the last chance to obtain additional reserve lands for First Nations through the reserve creation process.
Pretty Girl Cove was also claimed by a neighbouring First Nation during the McKenna-McBride Commission and the Tribunal clarified the Crown’s fiduciary obligations where there are overlapping claims by First Nations to the same area. Canada could not avoid its fiduciary obligation to be loyal to Ahousaht’s interests by invoking its obligations to other First Nations that Canada acted for in the reserve creation process. The fiduciary obligation requires the Crown to comply with the prescribed standard of conduct with respect to each Indigenous group. The Tribunal noted that it would be open to the neighbouring First Nation to also bring a claim against Canada respecting its interest in the lands at Pretty Girl Cove.
Comments
The Tribunal affirmed that, during the reserve creation process in BC, the content of the Crown’s fiduciary duty is determined by the strength of the Indigenous interests at stake. The fiduciary duty will be heavier where the Indigenous interest is stronger. Assessing the strength of the Indigenous interest requires a careful examination of the facts. At minimum, the fiduciary duty requires the Crown to discharge its mandate in good faith, provide full disclosure, and act with loyalty and ordinary diligence in pursuing the best interests of the First Nation.
The Tribunal affirmed that a duty of ordinary diligence cannot be met by doing nothing: it requires adequate inquiry and, once Indigenous interests are identified, the Crown must be ordinarily diligent in pursuing this interest. The Crown must disclose to and consult with Indigenous peoples regarding the status of their requests for reserve land during the reserve creation process. It cannot abandon a request without telling the First Nation.
The Tribunal’s discussion of the Crown’s fiduciary obligations during the McKenna-McBride Commission and the Ditchburn-Clark Review are helpful in fleshing out Canada’s fiduciary obligations during those processes. In particular, the Ahousaht decision provides guidance regarding the content of the Crown’s duty to act with “ordinary diligence” in pursuit of the First Nation’s best interest during the McKenna-McBride Commission and the Ditchburn-Clark Review. This is important because both processes were, historically, more focused on bringing reserve creation to a conclusion in BC than on protecting Indigenous interests from encroachment. Both were also rife with errors and failures to make diligent efforts to understand and meet Indigenous peoples’ needs. The Tribunal’s discussion of the heavier content of the Crown’s fiduciary duty in situations where a First Nation’s ability to obtain enough food was at stake provides useful clarity on this point.
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.
See CanLII for the Reasons for Judgement.