Lac La Ronge Band and Montreal Lake Cree Nation v His Majesty the King in Right of Canada 2023 SCTC 4 – Case Summary

On June 7, 2023, Justice Ducharme of the Specific Claims Tribunal (the “Tribunal”) issued his decision in Lac La Ronge and Montreal Lake Cree Nation v His Majesty the King in Right of Canada. This decision addresses the question of how much merchantable white spruce was on Indian Reserve 106A (“IR 106A”) in 1904. At that time, IR 106A was jointly allotted to the Lac La Ronge and Montreal Lake Cree Nation in what is now Saskatchewan.

Photo credit: Doane Gregory

Procedural History

This claim concerns the unlawful surrender in 1904 of white spruce timber on IR 106A and the mismanagement of the timber licence subsequently issued. In 2014, the Tribunal found that Lac La Ronge Indian Band and Montreal Lake Cree Nation (the “Claimants”) had established a valid claim.

The claim proceeded to a hearing to determine compensation. Due to the complexity of the issues, the compensation phase was subdivided into two hearings: one to determine the volume of the timber on IR 106A immediately prior to the invalid surrender; and another to determine the appropriate compensation (if any) for losses flowing from the Crown’s breaches of fiduciary duty.

Facts

The Claimants are First Nations located in Treaty 6 territory, in what is now known as the Province of Saskatchewan. Treaty 6 was signed in 1876 and the Claimants adhered to it on February 11, 1889. As part of the treaty agreement, IR 106A was confirmed to the Claimants’ use on January 6, 1900.

In 1903, following a request from the Sturgeon Lake Lumber Company (“SLLC”), the Crown sought the surrender of the white spruce timber on IR 106A. The timber was surrendered January 16, 1904, although the Parties agreed that the surrender did not follow the procedure set out in the Indian Act, RSC 1886, c 43, and was therefore invalid.

Photo credit: Gordon Lyall

The Claimants called Greg W Scheifele, an expert in forestry practices whose testimony and report offered the opinion that 55,465,000 board feet of white spruce existed on IR 106A prior to any cutting by SLLC. Scheifele developed his opinion through a six-step process:

1. the creation of a 1949 forest inventory map based upon contemporaneous aerial photography;
2. on-site attendance to conduct forest cruising, soil sampling and tree growth measurements across IR 106A;
3. the creation of a map of soil associations for IR106A and the identification of forest ecotypes;
4. an analysis of historical documents relating to prevailing lumbering practices and capacities on IR 106A and the surrounding area;
5. an analysis of the applicable operability and merchantability criteria; and, finally,
6. the re-creation of a 1904 forest cover type and calculation of spruce timber volume.

The Crown took the position that all timber harvested by SLLC on IR 106A was accounted for and the First Nations were fully compensated. The Crown offered no expert evidence on the volume of timber on IR 106A at the time of the surrender. Instead, the Crown argued that Scheifele erred in re-creating the historical forest cover on IR 106A and argued that the decision rendered by Whalen J in the validity phase of this Claim included a finding of fact that “the total amount of timber on the reserve was about 3,452,344” board feet.

Tribunal’s Decision

The Tribunal held that Whalen J’s comments regarding the total amount of timber on IR 106A in 1904 were made in obiter and not binding. Thus, the only evidence of timber volume was from the Claimants’ expert. The Tribunal accepted Scheifele’s expert opinion on a balance of probabilities and concluded that Scheifele’s method of determining the species composition (the six-step process described above) was relevant and legitimate. The Tribunal concluded that the volume of white spruce timber present on IR 106A as of its ostensible surrender to the Crown in 1904 was 55,465,000 board feet.

Comments

This decision provides support for the six-step method of re-creating historical forest cover for the purposes of valuing claims for lost timber revenues. While other methods of determining historical forest cover may also find favour with the Tribunal in the future, this decision provides a starting point for First Nations seeking to define and value historical timber losses.