APTN National News
On Prime Minister Justin Trudeau’s first full day in power a federal tribunal smacked Ottawa for breaching its fiduciary obligation to two British Columbia First Nations.
The Specific Claims Tribunal (SCT), created to handle First Nation historical grievances over loss of land or mishandling of trust funds, issued a ruling Thursday against Ottawa in a case involving the Blueberry and Doig River First Nations and the Crown’s failure to secure subsurface rights from the province for their replacement reserves.
While the case landed on the lap of the tribunal as a result of the previous Conservative government’s decision to reject the claim, it provides an example of the types of complex and historical Indigenous issues the new Trudeau Liberal government will now be forced to handle. The Trudeau government was officially sworn-in on Wednesday.
The ruling by Justice Larry Whalen, a part-time judge with the tribunal, found that Ottawa breached its fiduciary obligations by failing to secure subsurface rights when it obtained land from the B.C to give the Dunne-za Cree bands replacement reserves following the surrender of their originally set-aside territory in the mid-1940s.
“Canada had believed it had acquired the subsurface rights in the replacement reserves and discovered its error only after issuing mineral exploration permits to a third party,” wrote Whalen in the ruling. “Canada’s failure to investigate the nature and quality of the title it was acquiring on behalf of the band was a breach of fiduciary duty. Canada’s failure to inform the band of the nature and quality of that title, to explain the practical consequences of the reservation of subsurface rights and to consult the band on its wishes under those circumstances constitutes a further breach of fiduciary duty.”
Whalen found that Ottawa did nothing to rectify the situation even after discovering its error.
Whalen also ordered the start of a case management process to determine compensation to the bands for the loss of those subsurface rights.
If it stands, the ruling could end up costing Ottawa up to hundreds of of millions of dollars. A previous Supreme Court of Canada decision on another aspect of this case—the loss of mineral subsurface rights to their original reserve—led to the bands receiving about $147 million in compensation.
Justice Minister Jody Wilson-Raybould, who was a former Assembly of First Nations regional chief for B.C., will now have to determine whether Ottawa will challenge the ruling through a judicial review before the Federal Court.
The federal Justice department has already challenged at least two previous SCT rulings.
The ruling also casts a spotlight on the tribunal, which was slowly being squeezed by the Conservative government.
The tribunal is severely understaffed and needs additional judges to handle its bulging work load which currently includes about 67 cases. The tribunal is currently operating with only one full-time judge and two part-time judges. Under the legislation that created it, the tribunal was designed to operate with six full-time equivalent judges
The Conservative government, which created the SCT, refused to appoint additional judges, despite dire warnings from the tribunal’s chair Justice Harry Slade that it was on the brink of failure.
The fate of the tribunal, which is a going concern for B.C. First Nations which make up a large portion of specific claims cases, will now be in the hands of Wilson-Raybould.
Like many of these specific claims cases, the roots of the Doig River and Blueberry First Nation claim stretch back over the decades.
When the Dunne-za Cree people—who lived a nomadic lifestyle hunting, fishing and trapping across a region north of what is known today as Fort St. John, B.C.—adhered to Treaty 8 in 1900 they were given 7,352 hectares of land known as the Montney reserve. They became known as the St. John Beaver Band. While the reserve was set in prime agricultural land near non-Indigenous communities, the Dunne-za chose to continue pursuing their traditional ways of life in territory north of their new reserve.
In 1945, the St. John Beaver Band surrendered their reserve to the Crown which promised to provide benefits to the Dunne-za Cree from the sale and lease of the land.
The Crown then sold the surface and subsurface rights to the land, which was distributed to veterans coming back from the Second World War. In 1950, the Crown acquired land from the province for the replacement reserves, but did not secure the subsurface rights.
By 1976, oil was discovered beneath the old Montney reserve “to the great benefit of some of the veterans and a petroleum exploration company,” wrote Whalen.
By this time, the St. John Beaver Band was now divided into the Blueberry and Doig River First Nations. They took the government to Federal Court over the Crown’s decision to sell-off their old reserve lands’ subsurface rights. The case finally concluded with the financial settlement in the mid-1990s.
Doig River First Nation then filed a specific claim against Ottawa over the Crown’s failure to secure subsurface rights to their replacement reserve lands in April 1999. The claim was rejected for negotiation by former Conservative Aboriginal affairs minister Chuck Strahl in 2009.
Doig then took the claim to the tribunal which notified Blueberry First Nation it was taking on the case. Ottawa opposed Blueberry’s decision to join.
The tribunal ordered the band’s addition to the claim.