Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

By Mark Bourrie February 2, 20182 February 2018

Williams Lake: Crown breached fiduciary obligation at Confederation, top court rules

The Canadian government is responsible for breaches of the obligations of pre-Confederation colonies to Indigenous peoples under federal legislation aimed at resolving land claims, the Supreme Court of Canada ruled in a close decision.

In Williams Lake v The Queen, the court also continued to use its decisions to strengthen the hand of tribunals to determine issues of fact and law, and found “reasonableness” to the standard of review of the Specific Claims Tribunal. This tribunal, made up of superior court judges, determines whether First Nations have property rights to specific piece of land.

In Williams Lake, the Williams Lake Indian Band argued at the Specific Claims Tribunal that the band had lived in a settlement on Williams Lake before the British Crown established a colony in what is now British Columbia in 1858. Legislation enacted by that colony guaranteed Indigenous people that settlers would not take their land.

However, white settlers moved into the Williams Lake region and took over 1,000 acres of land that encompassed the First Nations village. That land is now in downtown Williams Lake, a town of 11,000 located 550 kilometers north of Vancouver. After Confederation, the Canadian government established a reserve elsewhere but gave the First Nation more land than it had lost in the town site.

The First Nation successfully argued at the Specific Claims Tribunal that the Crown had a fiduciary duty to the Indigenous people during the colonial period, and that duty was transferred to the Government of Canada when British Columbia joined Canada in 1871.

The band is not asking for return of the land, but wants a cash settlement.

The federal government appealed the tribunal decision to the Federal Court of Appeal, which in 2016 overturned it. Rather than send the case back to the tribunal, the Court of Appeal substituted its own decision, finding the Canadian government did not breach a fiduciary duty. The Court of Appeal found the government official who set up the Williams Lake reserve balanced the needs of the settlers and Indigenous people, and had the support of the band chief when the reserve was set up.

In a decision written by (now-Chief) Justice Robert Wagner and supported by four other members of the court, the Supreme Court upheld the tribunal decision and sent the case back to the tribunal to determine a remedy. The First Nation, the majority ruled, had a specific interest in the land, and colonial British Columbia and, later, the Canadian government, breached their obligation to respect that interest.

“The tribunal reasonably found that both the Imperial Crown (Great Britain) and the Crown in right of Canada (after Confederation) owed, and breached, fiduciary obligations to the band in relation to the protection of its village lands,” Wagner wrote.

Justices Malcolm Rowe and Suzanne Côté dissented in part on the question of whether Canada’s actions breached the fiduciary duty that all of the justices agreed existed.

Justice Russell Brown and former Chief Justice Beverley McLachlin dissented, on grounds the tribunal’s decision was unreasonable when it found Canada had breached ad hoc and sui generis fiduciary duties. The province, they argued, had an effective veto over the location of a new reserve.

The tribunal was set up in 2008, to deal with disputes like the one between Quebec Mohawks and the federal government over the ownership of a golf course in Oka, and the dispute between the Ontario government and Chippewa over Ipperwash Provincial Park. It does not hear cases concerning large land claims.

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