Tag Archives: breach of treaty

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

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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.

Jim Shot Both Sides v Canada, 2019 FC 789

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Claim allowed in part. A First Nation signatory to Treaty 7 filed a claim in 1980. Breaches of treaty obligations only became actionable with the passage of the Constitution Act, 1982. Canada is liable for the breach of treaty, but all other claims are time-barred. 

Indigenous Law Centre – CaseWatch Blog

In 1877, Treaty 7 was made between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians. Treaty 7 promised the Blood Tribe and each of the others, a reserve. The Blood Tribe reserve is at issue in this matter. It is set out in Treaty 7, however, that location was changed by agreement between the Blood Tribe and Canada.

Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 [“1882 Survey”] and the second was done in 1883 [“1883 Survey”]. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880. The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it.

Canada pleads that this action is time-barred by virtue of the Limitations Act. The Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982. The Blood Tribe commenced this action by Statement of Claim filed in 1980.

The Court found that a reserve for the Blood Tribe was created prior to 1883. The reserve that was set apart for them is that laid out by the 1882 Survey. It could not be reduced in size without obtaining a surrender from the Blood Tribe. There is no evidence how Canada arrived at the 650 square mile reserve created by the 1882 Survey. It appears to be based on a Blood Tribe population of 3250. Absent evidence as to how Canada arrived at the population figure it appears to have used, and given that the Court’s finding that the actual population was 3550, it is concluded that Canada failed to fulfill its treaty obligation.

The material facts as set out in the original Statement of Claim are that the Blood Tribe was a party to Treaty 7, that under the Treaty the Blood Tribe was entitled to a reserve of a size to be determined based on the Treaty Land Entitlement process [“TLE”], that Canada provided a reserve, but that the reserve provided was not of the required size under the TLE. The Blood Tribe sought a declaration that it is entitled to additional lands, or in the alternative, damages. These are the material facts that touch on the claim of breach of treaty. They are few and straightforward.

Paragraph 5(1)(g) of the Limitations of Actions Act provides that an action for breach of treaty must be commenced within six years after the cause of action arose. It may seem odd, but here the Blood Tribe commenced this action two years before the cause of action arose. It did so because it pleaded the action as if it were a breach of contract claim. As result of the view of the Supreme Court of Canada that treaties are not contracts (R v Sundown, [1999] 1 SCR 393; First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58), it has turned out that the claim of the Blood Tribe is not one for breach of contract but rather is a claim for breach of treaty.

The Blood Tribe since commencing this action has been the beneficiary of the entrenchment of treaty rights into the Constitution Act, 1982. Canada has not put forward any arguments on the temporal application of the Constitution Act, 1982 to suggest that it would not apply to an ongoing action. For these reasons, the claim of the Blood Tribe for breach of the TLE promise in Treaty 7 is not time-barred.

For the reasons above, the claim of the Blood Tribe is allowed, in part. The Court finds that Canada is in breach of the TLE formula in Treaty 7 in regards to the size of the Blood Reserve. The Plaintiffs were entitled under the TLE formula to a reserve of 710 square miles, whereas the current Reserve is 547.5 square miles. Canada is liable to the Blood Tribe for this breach of Treaty. All other claims are dismissed as time-barred.