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Indigenous - Specific Claims Tribunal (SCT)

. 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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Last modified: 01-03-24
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