Williams Lake First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 30

Appeal remitted back to the Specific Claims Tribunal. The Federal Court of Appeal determined that the tribunal was unreasonable in their assessment of the Crown’s fiduciary duty owed towards the appellant First Nation. The tribunal erred by failing to give adequate consideration to applicable common law precedents. This was the result of failing to consider other less invasive and viable options in fulfillment of the Crown’s obligation of minimal impairment, where the taking or expropriation of reserve land is undertaken for a public purpose.

Indigenous Law Centre – CaseWatch Blog

This claim is rooted in the sale of 4.37 acres of land to the Pacific Great Eastern Railway Company in 1914-1915. It occurred in the grander context of British Columbia’s belated efforts to set aside reserve lands for British Columbia’s Indigenous peoples. Central to this claim is the historical backdrop in which the events unfolded and are imperative to the analysis of this case.

At the Specific Claims Tribunal [“SCT”], Williams Lake First Nation had contended that the lands had been wrongfully transferred, or alternatively, that the Crown had breached their fiduciary duty owed to the Band in respect to this transfer of land. The SCT determined that the Band’s specific claim was unfounded. Williams Lake contended that the determination made by the Supreme Court of Canada in Wewaykum was non-binding obiter, and that the application is limited to its fact, or needs to be revisited to apply to the present decision. The SCT rejected this. The SCT turned to the applicable legislation, determining that while the provisional nature of the land did implicate the application of some legislation, that ultimately, the BC Land Act, 1911 enabled the province to grant Crown land for railway purposes, regardless of whether the lands had been reserved under the Indian Act. Lastly, the SCT considered whether the Crown had discharged of their fiduciary duty, and focused their analysis on the monetary compensation, and not the unheeded wish of land in lieu of monetary compensation.

The Federal Court of Appeal determined that Williams Lake appeal must succeed, insofar that the SCT was unreasonable as they “failed to give adequate consideration to the principles established in the applicable common law precedents governing the scope of the Crown’s fiduciary duties to Indigenous peoples in respect of reserve lands”. All that was required for the construction of a canal over reserve lands was the grant of an easement, and that the Aboriginal interest must be preserved to the greatest extent practicable to preserve the taxation jurisdiction of the band (Osoyoos Indian Band v Oliver (Town), 2001 SCC 85). On this vein of analysis, the Federal Court of Appeal cites extensive precedent in line with this principle of minimal impairment, and the failure of the SCT to reach a similar conclusion to similar circumstances in the past. Moreover, the Court finds that the SCT failed to consider such options as an easement, versus a grant in fee simple. The Court determines that the matter is best remitted back to the expertise of the SCT for redetermination.

Iskatewizaagegan No 39 Independent First Nation v Winnipeg (City), 2021 ONSC 1209

Ontario’s motion is dismissed. Ontario moved for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim claiming that it is plain and obvious that Iskatewizaagegan pleading disclosed no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. The Court finds that it is not plain and obvious that Iskatewizaagegan does not have a tenable cause of action based on a sui generis fiduciary duty or an ad hoc fiduciary duty.

Indigenous Law Centre CaseWatch Blog

The City of Winnipeg, Manitoba [“Winnipeg”] extracts its drinking water from Shoal Lake, which is located predominantly in Ontario, but also Manitoba. Shoal Lake has been extracted for this purpose for over 100 years but has not paid anything to the Plaintiff, the Iskatewizaagegan No. 39 Independent First Nation [“Iskatewizaagegan”]. Winnipeg is being sued by Iskatewizaagegan for compensation for injurious affection, with damages claimed at $500 million. Iskatewizaagegan also sues the Province of Ontario, for breach of fiduciary duty.

Iskatewizaagegan pleads two distinct theories of Crown liability for breach of fiduciary duty: 1) a sui generis fiduciary duty based on the relationship between Aboriginal peoples and the Crown; and 2) an ad hoc fiduciary duty. It relies on a 1913 Order in Council along with antecedent Royal Proclamations and Treaties and sequent legislation enacted by Ontario.

In this matter, Ontario moves for an Order to strike out Iskatewizaagegan’s Amended Statement of Claim without leave to amend and to dismiss the action for failing to disclose a reasonable cause of action. Ontario states that it is plain and obvious that Iskatewizaagegan pleading discloses no reasonable cause of action for breach of a sui generis or an ad hoc fiduciary duty. Ontario’s action is dismissed.

The people of Iskatewizaagegan are Anishinaabe. They are a distinct Aboriginal society, a recognized Band under the Indian Act, and an Aboriginal people within the meaning of s 35 of the Constitution Act, 1982. Shoal Lake is a part of the cultural identity of Iskatewizaagegan and its people. Since time immemorial, the Anishinaabe have used the waters of Shoal Lake and the surrounding land for survival. Iskatewizaagegan’s culture is coextensive with Shoal Lake and the surrounding land. The transmission of Anishinaabe teachings, traditions, and values to future generations takes place and continues to take place at Shoal Lake.

Common law real property concepts do not apply to Aboriginal lands or to reserves. Aboriginal title and interest in reserves are communal sui generis interests in land that are rights of use and occupation that are distinct from common law proprietary interests. An Aboriginal interest in land will generally have an important cultural component that reflects the relationship between an Aboriginal community and the land. The Aboriginal interest in land is a sui generis independent beneficial legal ownership interest that burdens the Crown’s underlying title, which is not a beneficial ownership interest and which may rather give rise to a fiduciary duty on the part of the Crown.

Iskatewizaagegan is a beneficiary of the Royal Proclamation of 1763, and was ratified by assembled Indigenous Nations by the Treaty of Niagara 1764. In the summer of 1764, representatives of the Crown and approximately 24 First Nations, met at Niagara. The lengthy discussions lead to the Treaty of Niagara 1764, which was recorded in wampum. The Crown does not recognize the Treaty of Niagara 1764 as substantively altering the legal effects of the Royal Proclamation of 1763. In contrast, First Nations assert that the Royal Proclamation of 1763 must be understood together with the Treaty of Niagara 1764 and so understood the Royal Proclamation of 1763 constitutes a recognition of Indigenous sovereignty.

In 1873, Iskatewizaagegan entered into Treaty No 3 with the Crown. The reserve of Iskatewizaagegan No. 39 adjacent to Shoal Lake was established pursuant to Treaty No 3. Treaty No 3 is a pre-confederation treaty on behalf of the Dominion of Canada and Chiefs of the Ojibway. The Ojibway yielded ownership of their territory, except for certain lands reserved to them. In return, the Ojibway received annuity payments, goods, and the right to harvest the non-reserve lands surrendered by them until such time as they were taken up for settlement, mining, lumbering, or other purposes by the Government of the Dominion of Canada. Although Treaty No 3 was negotiated with the Crown in right of Canada, the promises made in Treaty No 3 are promises of the Crown. The federal Government and Ontario are responsible for fulfilling the promises of Treaty No 3 when acting within the division of powers under the Constitution Act, 1867.

In exercising its jurisdiction over Treaty No 3 lands, Ontario is bound by the duties attendant on the Crown and it must exercise its powers in conformity with the honour of the Crown and the fiduciary duties that lie on the Crown in dealing with Aboriginal interests. The honour of the Crown has been a principle animating Crown conduct since at least the Royal Proclamation of 1763, through which the British asserted sovereignty over what is now Canada and assumed de facto control over land and resources previously in the control of Aboriginal peoples. The categorical fiduciary duty owed by the Crown in the Aboriginal context is sui generis. From the honour of the Crown and the Federal Government’s exclusive jurisdiction in respect of Indians under s 91(24) of the Constitution Act, 1867, the Crown has the responsibility to act in a fiduciary capacity with respect to Aboriginal peoples.

Mosquito Grizzly Bear’s Head Lean Man First Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 1

As a result of breach of Crown fiduciary duty arising in a 1905 surrender of lands, compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation, totalled a combined amount of $126,933,972.00. The Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. Pursuant to Treaty obligations, Canada admitted that it breached its pre-surrender fiduciary obligation, which rendered the 1905 surrender of lands invalid.

Indigenous Law Centre CaseWatch Blog

This matter is the determination of the compensation due to the Mosquito Grizzly Bear’s Head Lean Man First Nation [“Claimant”], as a result of breaches of fiduciary duty of the Crown [“Respondent”] in the surrender of land from Indian Reserve No. 110/111 [“Lands”]. The reserve land of the Claimant totals 46,208 acres. The Claimant is of Assiniboine, Nakoda and Stony descent. The Claimant’s ancestors adhered to Treaty 6 and Treaty 4. The Claimant is also a “band” within the meaning of the term in the Indian Act, and was established by an amalgamation of three bands.

Pursuant to Treaty obligations, the Crown set aside land for the benefit of Grizzly Bear’s Head and Lean Man Bands with the Lands. In 1905, the Crown took a surrender of a 14,670-acre parcel. The surrendered land comprised approximately 2/3 of the reserve. The Claimant is, for the purpose of this proceeding, the successor in interest to any cause of action that may arise against the Crown as a result of the surrender.

Awards of compensation where a claim is found valid are governed by paragraph 20(1)(c) of the Specific Claims Tribunal Act [“SCTA”], which provides that the Tribunal is to award compensation “that it considers just, based on the principles of compensation applied by the courts”. Equitable compensation is a remedy where a breach of fiduciary duty is found and applies in the context of a breach of fiduciary duty with respect to a surrender of reserve land (Guerin v R, [1984] 2 SCR 335 [“Guerin”]). Where reserve land is affected by an invalid surrender, section 20(1)(g) of the SCTA requires that the Tribunal award compensation equal to the current unimproved market value [“CUMV”] of the subject lands. The Tribunal must also, under section 20(1)(h) of the SCTA, award compensation equal to the value of the loss of use [“LOU”] of the lands, brought forward to the present value of the loss.

Although the agreement did not describe the events and actions that breached Crown fiduciary duty, the evidence introduced in the compensation phase of the proceeding reveals that the Crown took a surrender vote in contravention of the statutory requirement that permitted only members of the Grizzly Bear’s Head and Lean Man Bands to vote, and later accepted and acted on the surrender. This was, from the outset, a breach of the duty of ordinary prudence. This breach occurred within a Treaty relationship, with respect to a Treaty reserve, and the breach led directly to the permanent alienation of Treaty reserve land from the Claimant.

The evidence was for the most part comprised of filed expert reports, their respective reliance documents, and the testimony of the authors on direct and cross examination. The expert reports addressed the historical context of the breach, the CUMV of the Claim Lands, LOU models describing foregone revenues from the Claim Lands from 1905 to present, and present valuation of foregone revenues.

Equitable compensation “attempts to restore to the plaintiff what has been lost as a result of the breach; i.e. the plaintiff’s lost opportunity” (Canson Enterprises Ltd v Boughton & Co, [1991] 3 SCR 534 [“Canson”]). The underlying policies that guide the assessment of equitable compensation in this claim include restitution (Guerin; Canson), reconciliation (SCTA), deterrence (Canson), fairness, and proportionality (Hodgkinson v Simms, [1994] 3 SCR 377). Equitable compensation is assessed at the time of trial, not the date of the breach. Therefore, the assessment is of the loss at present, with all losses represented by a single award. There is a common sense connection between the loss of use of the land and the loss of revenue that may have been paid into the Claimant’s coffers if the land had been leased out to farmers.

At all relevant times, the Indian Act applied to the Crown’s management of the Claimant’s funds. If the land had been surrendered for leasing, the reality would be that lease revenue would have been deposited in the Band Trust Account. The Tribunal adopted the Band Trust Account rate. Revenue from leasing would if in fact received be deposited in the Band Trust Account, and would earn interest at the rate set annually on such funds, compounded annually. The Tribunal determined CUMV of $15,500,000.00, effective September 21, 2017. The Tribunal assessed the present value of loss of use to December 31, 2019 at $111,433,972.00. This amount is net of the payments made by the Crown to the Claimant in respect of the Claim Lands from 1906 to 1956. The combined amount awarded for CUMV and LOU, subject to adjustment, is $126,933,972.00.