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Indigenous - Specific Claims Tribunal (SCT). Waterhen Lake First Nation v. Canada
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
The court considers the striking of SCT claims, not under general provisions of the court's Federal Rules, but under the administrative SCTA s.17 ['Application to strike']:A. The Tribunal’s role on a section 17 application to strike
[62] The Tribunal began its decision by examining the burden imposed on the Crown to strike a claim under section 17 of the Act. It held that the Crown bore the onus to establish that it was plain and obvious, and beyond doubt that the Claim cannot succeed before the Tribunal: Decision at para. 3. In approaching this assessment, the Tribunal recognized that it should: 1) accept that the assertions made in the Claim are true; 2) interpret the Act broadly and liberally, recognizing the remedial purpose and process of the Tribunal; and 3) consider the fact that the Claim was novel in the context of a continuing evolving area of law: Decision at paras. 1, 3–4.
[63] In framing the legal standard governing an application to strike, the Tribunal relied on the test set out in leading Supreme Court of Canada precedents, including R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17, [2011] 3 S.C.R. 45 [Imperial Tobacco], to govern motions to strike pleadings for not disclosing a reasonable cause of action. I note that a decision that is consistent with the established understanding of a legal standard well known in law and in the jurisprudence will generally be reasonable: Vavilov at para. 111.
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[67] The Applicant argues that it was unreasonable for the Tribunal to decide there was no need for a full evidentiary record on a motion to strike under section 17 of the Act. I disagree. In Imperial Tobacco, relied on by the Tribunal, the Supreme Court observes that motions to strike proceed on the basis that the facts pleaded are true (Imperial Tobacco at para. 17). It also notes that striking out claims that have no reasonable prospect of success "“promotes litigation efficiency, reducing time and cost”" by allowing litigants to "“focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless”" and allowing decision makers to focus on claims that have a reasonable chance of success (Imperial Tobacco at para. 20) [emphasis added]. The Tribunal’s approach under section 17 of the Act is consistent with the concern for litigation efficiency and timeliness that animates the power to strike claims. It is also aligned with the Act’s emphasis on the resolution of claims in a "“just and timely manner”" (Act, Preamble) and its direction that, in deciding how to conduct a hearing, the Tribunal have regard to "“the importance of achieving an expeditious resolution”" (Act, subsection 26(2)). . Waterhen Lake First Nation v. Canada
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
Here the court considers the central SCTA s.14 ['Grounds of a specific claim'] and 15 ['Exceptions'] jurisdictional provisions:B. The Tribunal’s authority to consider specific claims under sections 14 and 15 of the Act
[69] The Tribunal held that its jurisdiction to consider the validity of a claim was "“wholly determined”" by section 14 of the Act, but that section 15 "“guide[d]”" the application of section 14 "“with specific examples of when a First Nation may not file a claim with the Tribunal”": Decision at para. 17. After reviewing the purpose of the Act and of the Tribunal (Decision at para. 5), the Tribunal concluded that the Claim was not admissible under section 14 of the Act and that it was specifically excluded from the Tribunal’s jurisdiction by paragraph 15(1)(g) of the Act: Decision at para. 17.
(1) Purpose of the Act and the Tribunal
[70] The Tribunal noted that it was established as an independent tribunal to resolve historical specific claims between First Nations and the Crown as part of the process of reconciliation and that its process was remedial. It also observed that the purpose of the Act was to provide First Nations with access to justice in resolving specific claims in a cost-effective and timely manner. Since a narrow and technical interpretation of the Act would, in its view, defeat this purpose, the Tribunal decided that the Act should be broadly and liberally interpreted: Decision at para. 5. At paras 71-95 the court considers specific claims and exceptions of SCTA s.14-15.
. Waterhen Lake First Nation v. Canada
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
Here the court considers the history of the Specific Claims Tribunal regime:[17] Waterhen claims that the Tribunal failed to consider the evolution of the Specific Claims Policy and that this led it to adopt a narrow and technical reading of the Act in its Decision. In order to assess this argument, it will be useful to briefly address that evolution, relying on the final report of the Indian Specific Claims Commission, entitled "“A Unique Contribution to the Resolution of First Nations’ Specific Claims in Canada,”" to which Waterhen referred in its arguments before the Tribunal (Canada, Indian Claims Commission, Indian Specific Claims Commission, final report, 1991-2009 : a unique contribution to the resolution of First Nations' specific claims in Canada, (Ottawa: Indian Claims Commission, 2009)). This report summarizes the Commission’s major achievements and makes some recommendations on the future of specific claims. The evolution of the Specific Claims Policy was also considered by the Tribunal in its decision in Beardy’s & Okemasis Band #96 and #97 v. Her Majesty the Queen in Right of Canada, 2015 SCTC 3 at paras. 333-362 [Beardy’s].
[18] Until the development of the first Specific Claims Policy in 1973, specific claims were dealt with in an ad hoc fashion by the federal government. The ICC suggests that the Supreme Court of Canada’s decision in Calder et al. v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] S.C.R. 313, 34 D.L.R. (3d) 145, which for the first time recognized aboriginal title to land as a legal right in Canada, pressed the federal government to rethink its approach to claims by emphasizing negotiation rather than litigation.
[19] The federal government established the Office of Native Claims in 1974, within the Department of Indian Affairs, and tasked it with the review of claims and the formulation of policies. There were concerns that the Office was not independent since it was meant to represent the Minister and the federal government in claims assessment and negotiation with First Nations while also being the body empowered to make decisions on claim validation.
[20] The ICC stated that, by 1982, only 12 of the 250 specific claims presented between 1970 and 1981 had been settled, for a total of $2.3 million. Since this scheme was not working, the federal government reviewed and clarified its policy for the resolution of specific claims, which it detailed in the 1982 document entitled Outstanding Business: A Native Claims Policy (Canada, Department of Indian Affairs and Northern Development, Outstanding Business: A Native Claims Policy, No. Q5-5171-000-BB-A1 (Ottawa: Department of Indian Affairs and Northern Development, 1982) [Outstanding Business]). This document contemplated certain administrative changes like additional resources for the Office, and more clearly articulated the bases upon which claims could be accepted. However, objections persisted about the lack of an independent review of the validity of claims or the amount of compensation to be paid for claims.
[21] In response to this criticism, the federal government created the ICC, which was empowered as a commission of inquiry under the Inquiries Act, R.S.C. 1985, c. I-11, and mandated in July 1991 by Order in Council P.C. 1991-1329. A revised Order in Council established the ICC’s jurisdiction and powers. Its jurisdiction was consistent with Outstanding Business, subject to any formal amendments or additions.
[22] The ICC’s mandate was twofold: 1) hold a public inquiry to review the Minister’s decision to reject a claim (or to accept a claim where there remained a dispute over how to establish compensation) upon the request of a First Nation, and 2) upon mutual agreement of a First Nation and the Department of Indian Affairs, provide mediation support at any stage of the claims process. The ICC provided non-binding recommendations regarding the federal government’s outstanding lawful obligations. Two successive Ministers, in November 1991 and October 1993, affirmed they would accept the ICC’s recommendations where they fell within the Specific Claims Policy, and would welcome its recommendations on how to proceed where the ICC concluded the policy was implemented correctly but that the outcome was nonetheless unfair.
[23] In November 2003, The Specific Claims Resolution Act, S.C. 2003, c. 23, received Royal Assent. Meant to modify the specific claims process, this statute was never proclaimed into force by the federal government in light of the lack of support of First Nations for the legislative changes it contained. The legislation was criticized for insufficiently addressing the need for an independent adjudicator of specific claims and for placing an overly restrictive financial cap on claim settlements.
[24] In December 2006, the Standing Senate Committee on Aboriginal Peoples published a special study on the federal specific claims process that recommended, among other things, the establishment, in full partnership with First Nations, of an independent body with the mandate and power to resolve specific claims (Senate of Canada, Standing Senate Committee on Aboriginal Peoples, Negotiation or Confrontation: It’s Canada’s Choice, Final Report of the Standing Senate Committee on Aboriginal Peoples’ Special Study on the Federal Specific Claims Process (2006 December) (Chair: The Honourable Gerry St. Germain, P.C.)).
[25] In June 2007, the Minister of Indian and Northern Affairs released Justice at Last: Specific Claims Action Plan (Canada, Indian Affairs and Northern Affairs Canada, Specific Claims: Justice at Last, No. QS-5393-000-EE-A1 (Ottawa: Department of Indian Affairs and Northern Affairs Canada, 2007) [Justice at Last]), a document setting out an action plan for the revision of the Specific Claims Policy. The action plan committed to the creation of an independent tribunal to adjudicate specific claims. The Assembly of First Nations, jointly with the federal government, prepared a legislative proposal to embody the plan and discussed the process to implement it.
[26] Accompanying the draft bill, which was introduced into Parliament as Bill C-30 and culminated in the Act, was a political agreement between the federal government and the Assembly of First Nations [Political Agreement]. In this agreement, the parties acknowledged that a number of issues had arisen in their deliberations that were either outside the specific claims process or, by definition, were not addressed in the draft bill. They resolved to work together on specific claims issues that fell outside the scope of the legislation. The Political Agreement expressed the commitment of the parties to work together on a joint approach to address treaty issues not addressed in the draft bill or Specific Claims Policy, including claims for compensation in excess of $150 million, the monetary cap proposed in the draft bill.
[27] The Specific Claims Tribunal Act received royal assent in June 2008. Its preamble recognizes that resolving specific claims will promote reconciliation between First Nations and the Crown and that an independent tribunal is needed to adjudicate specific claims in accordance with law in a just and timely manner (the Act, Preamble). More specifically, the Tribunal’s mandate is to "“decide issues of validity and compensation relating to the specific claims of First Nations”" (the Act, section 3). It awards "“monetary compensation to First Nations for claims arising from the Crown’s failure to honour its legal obligations to Indigenous peoples, even where delay or the passage of time would bar an action in the courts”" (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 2, [2018] 1 S.C.R. 83 [footnote omitted]).
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[29] In 1973, the federal government’s Statement on Claims of Indian and Inuit People recognized two types of claims: 1) comprehensive claims based on aboriginal title; and 2) specific claims based on the non-fulfillment of an historic Treaty, mismanagement of reserve lands or other assets, and breaches of the Crown’s legal obligations.
[30] In 1982, Outstanding Business defined specific claims as "“claims made by Indians against the federal government which related to the administration of land and other Indian assets and to the fulfillment of Indian treaties.”" It provided that recognizable claims that disclose an outstanding lawful obligation (i.e., an obligation derived from the law on the federal government’s part), could arise in four instances:1. The non-fulfillment of a treaty or agreement between Indians and the Crown;
2. A breach of an obligation arising out of the Indian Act or other statutes pertaining to Indians and the regulations thereunder;
3. A breach of an obligation arising out of government administration of Indian funds or other assets; and
4. An illegal disposition of Indian land. Moreover, the government was prepared to acknowledge claims that related to a failure to provide for reserve lands taken or damaged by the federal government or any of its agencies or to fraud in connection with the acquisition or disposition of Indian reserve land by employees or agents of the federal government.
[31] In 2007, Justice at Last defined a specific claim as "“a claim made by a First Nation against the federal government relating to the non-fulfillment of an historic treaty or the mismanagement of First Nation land or other assets”" (Justice at Last at p. 3). The government recognized that a specific claim exists where a First Nation established that the Crown has a lawful obligation because it has:1. Failed to uphold a treaty or other agreement between First Nations and the Government of Canada;
2. Breached the Indian Act or other statutory responsibility;
3. Mismanaged First Nation funds or other assets; and
4. Illegally sold or otherwise disposed of First Nation land. [32] The Specific Claims Policy and Process Guide (Canada, Indian Affairs and Northern Affairs Canada, Specific Claims Policy and Process Guide, No. QS-5401-000-BB-A1 (Ottawa: Department of Indian Affairs and Northern Affairs Canada, 2000) [2009 Policy]), written after Justice at Last and the enactment of the Act, explains that:The fundamental principles of the Specific Claims Policy as articulated in [Outstanding Business] have not changed. These principles are: an outstanding lawful obligation must be confirmed, valid claims will be compensated in accordance with legal principles and any settlement reached must represent the final resolution of the grievance. [33] Under the Act, the jurisdiction of the Tribunal to consider the validity of a claim is set out by section 14. As shown in the following section of these reasons, subsection 14(1) provides that a First Nation may file with the Tribunal a claim for compensation for losses arising from one or more of six listed grounds. Section 15 of the Act lists seven specific categories of claims that may not be filed with the Tribunal. . Fletcher v. Ontario
In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had disregarded a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the band population - but was that the 1906 population or the modern population (ie. the 'crystallization date')? The trial court found it to be the 1906 population.
These quotes illustrate Specific Claims Tribunal Act (SCTA) 'stay' procedures:[10] In 1993, the MCFN submitted a specific claim to Canada for reserve lands. In 1995, the appellants commenced this action. Their claims are as pleaded in their Amended Fresh as Amended Statement of Claim in April 2011. They seek two main forms of relief: (i) a declaration that, pursuant to Treaty No. 9, Canada and Ontario are obligated to set apart reserve lands for them based upon the population of the Missanabie Cree First Nation on the date of declaration; and (ii) damages, on a joint and several liability basis, against Canada and Ontario in the amount of $160,000,000, comprised of $50 million each for breach of the Treaty, breach of fiduciary duty, and special damages, plus $10 million as punitive damages. This includes damages for loss of use of a reserve and damages associated with the Crown’s granting of mineral rights to the land and limiting hunting and trapping rights.
[11] The action was placed in abeyance to facilitate negotiations under Canada’s Specific Claims Policy, which requires that active litigation be stayed while negotiations continue. Canada accepted the claim for negotiation under the Specific Claims Policy in 1996 and Ontario accepted the claim for negotiation under the same process in 2000. Ontario withdrew from negotiations in 2005 and negotiations between Canada and the MCFN were unsuccessful, leading the appellants to revive the litigation. . Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations)
In Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2023) the Federal Court of Appeal considered a JR of decisions of the Specific Claims Tribunal, here addressing surrender of land emanating from 1944 and related Crown fiduciary duties.
In these quotes the court canvasses Specific Claims Tribunal (SCT) doctrine on fiduciary duties in the context of land surrender:(2) Precedents from the Tribunal
[78] I turn next to briefly review relevant precedents from the Tribunal, itself.
[79] The Tribunal has recognized many times that the obligations imposed on the Crown when reserve land is surrendered go beyond preventing exploitative bargains and accepting a surrender that the First Nation has consented to sign. These additional obligations include, among other things, the need for full disclosure to the First Nation by the Crown of all relevant facts that the Crown has knowledge of prior to taking the surrender: see e.g. Metlakatla Indian Band v. His Majesty the King in Right of Canada, 2022 SCTC 6 at paras. 186-189, 194 [Metlakatla]; Makwa Sahgaiehcan First Nation v. Her Majesty the Queen in Right of Canada, 2019 SCTC 5 at para. 144 [Makwa Sahgaiehcan]; Lac La Ronge Band and Montreal Lake Cree Nation v. Her Majesty the Queen in Right of Canada, 2014 SCTC 8, aff’d 2015 FCA 154 at para. 164.
[80] In all of the foregoing cases, the Tribunal found the Crown breached the fiduciary duty it owed to Indigenous Peoples, in part because it failed to disclose or consult on facts the Crown had knowledge of that were relevant to the decision to surrender. As the Tribunal noted in Metlakatla, “the failure by Canada to offer disclosure of material facts to [a] Band” is “a failure to act with loyalty and good faith towards [that] Band”: see para. 340.
[81] Where there is a failure to disclose relevant facts, any consent given to the surrender is not an informed one, and therefore cannot be valid. This is because “where actions are a matter of choice, the exercise of an actor’s autonomous will depend on the actor’s knowledge of the available choices”: Makwa Sahgaiehcan, at para. 149.
[82] Where appropriate disclosure has not been made, the Tribunal has held that the burden falls on the Crown to establish that the First Nation would have suffered the same loss regardless of the breach. In in Doig River First Nation and Blueberry River First Nations v. Her Majesty the Queen in Right of Canada 2018, SCTC 5, the Tribunal outlined the applicable principles as follows:[161] ... .Where the breach of duty includes a failure to inform the beneficiary about important aspects of the impugned transaction, the principle in Brickenden, as interpreted in Hodgkinson, applies. The Court in Brickenden at page 469 said:When a party, holding a fiduciary relationship, commits a breach of his duty by non-disclosure of material facts, which his constituent is entitled to know in connection with the transaction, he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction, because the constitutent’s [sic] action would be solely determined by some other factor, such as the valuation by another party of the property proposed to be mortgaged. Once the Court has determined that the non-disclosure facts were material, speculation as to what course the constituent, on disclosure, would have taken is not relevant. [162] In Hodgkinson, the Supreme Court of Canada framed the principle in Brickenden as a reverse onus: “…the onus is on the defendant to prove that the innocent victim would have suffered the same loss regardless of the breach…”; the defendant must provide “concrete evidence”; and, “mere ‘speculation’” is inadequate (Hodgkinson at para 76). The focus of the inquiry then is whether the ill-informed “constituent” would have continued with the deal if properly informed. [83] The Tribunal has also found that where there is a change in circumstances relevant to a decision to surrender or to the sale of resources harvested from reserve lands, the Crown must consult with the First Nation before proceeding: see especially Doig River First Nation and Blueberry River First Nations v. Her Majesty the Queen in Right of Canada, 2015 SCTC 6 at paras. 155, 168 [Doig River 2015]; Huu-Ay-Aht First Nations v. Her Majesty the Queen in Right of Canada, 2014 SCTC 7 at paras. 72, 86-87, 104 [Huu-Ay-Aht].
[84] As will soon become apparent, it is my view that the Tribunal’s failure to recognize the foregoing principles drawn from the relevant court and Tribunal cases renders its decision in the case at bar unreasonable. . Canada v. Jim Shot Both Sides et al
In Canada v. Jim Shot Both Sides et al (Fed CA, 2022) the Federal Court of Appeal considered a long-standing (42 years) federal civil case concerning the allocation, and damages for failure to allocate, treaty lands. The case invokes many principles of native law - including the honour of the Crown - and while partially granting the appeal, essentially refers the case to the federal statutory Specific Claims Tribunal Act, S.C. 2008, c. 22.
. Witchekan Lake First Nation v. Canada
In Witchekan Lake First Nation v. Canada (Fed CA, 2022) the Federal Court of Appeal heard a judicial review application of a decision of the Specific Claims Tribunal.
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