Insights

William Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4

In this recent Supreme Court of Canada decision, Wagner J. writing for the majority, upheld the William Lake Indian Band’s (the “band”) appeal and restored the Specific Claims Tribunal’s (the “Tribunal”) decision.

Facts and Background

The band’s traditional territory included the site of a village near William’s Lake in British Columbia (the “Village Lands”). When the Colony of British Columbia was established in 1858, settlers rapidly began taking up unsurveyed lands, including those occupied by the band. The Colony then enacted the Proclamation relating to acquisition of Land, 1860 (“Proclamation No. 15”), under which “Indian settlements” were not available for pre-emption. However, officials responsible for implementing Proclamation No. 15 took no steps to identify the site of the band’s settlement, to mark it out as reserved from pre-emption, or to call into question the pre-emptions that had been recorded when it became apparent settlers had contravened the legislation.

After British Columbia had joined confederation in 1871, Canada assumed responsibility for the creation of Indian[1] reserves. The federal Crown official acknowledged in 1881 that it had been a mistake to permit the pre-emptions, and that the government in an attempt to remedy, had purchased another tract of land as a reserve. The band filed a claim to compensation under the Specific Claims Tribunal Act (the “Act”) for losses arising from these events.  

The Tribunal had concluded that the band’s village and surrounding lands ought to have been marked out as a reserve under the applicable colonial legislation. Under the Specific Claims Tribunal Act, SC 2008, c. 22, the Tribunal found that the definition of the “Crown” was extended to include the Sovereign of Great Britain and its colonies. The Tribunal determined the Imperial Crown was under a legal obligation to take the appropriate measures to have the Village Lands marked as a reserve. The Tribunal further found that once British Columbia joined Confederation, federal officials had failed to take appropriate measures to address the consequences of not taking the necessary measures regarding the band’s village and surrounding lands. Canada then applied for judicial review of the Tribunal’s decision.  

The Federal Court of Appeal then allowed Canada’s application and substituted its own decision, dismissing the band’s specific claim. The band then appealed this decision.


[1] “Indian” in this Article will be used where appropriate to reflect the historical context of the band’s specific claim; “First Nations’ to refer to the legal entities capable of filing specific claims; “Aboriginal” as this word is used in the jurisprudence; and otherwise “Indigenous peoples”. 


The Crown’s Fiduciary Duty

The majority, as well as concurring and dissenting judgments, all agreed that the Tribunal reasonably found that, prior to Union with Canada, the Crown Colony of British Columbia had breached its fiduciary duty to the band.

The majority confirmed that the fiduciary relationship between the Crown and the Indigenous peoples in British Columbia arose prior to Confederation. The majority held that the fiduciary obligation arose from the Crown’s discretionary control over a specific Aboriginal interest, and is unique to the relationship between the Crown and Aboriginal peoples. The interest in this case was sufficiently independent of the Crown’s executive and legislative functions to give rise to fiduciary duties.

The standard of care for this fiduciary obligation was “that of an ordinary prudence in managing one’s own affairs” in exercising the Crown’s discretionary control, in accordance with the fiduciary duties of loyalty, good faith and full disclosure.

The interest at stake identified was the band’s interest in the Village Lands, and the majority found that by Proclamation No. 15, the Imperial Crown had assumed discretionary control over that interest.

The majority further held that the Tribunal’s conclusion that the inaction of the federal Crown officials with knowledge of the circumstances of the pre-emptions and the band’s situation, fell short of fulfilling the Crown’s fiduciary obligations. The fact that Canada eventually procured a reserve for the band elsewhere did not undo that breach, but may have reduced the amount of compensation owed.

“Extended meaning” of “Crown”

The majority found that the Tribunal’s definition of the Crown, as a single, continuous and indivisible entity to validate the band’s claim against Canada for pre-confederation breaches, under section 14(2) of the Act, was reasonable.

The Act defines “Crown” in reference to legal obligations whose breach or non-fulfillment form the basis for a specific claim. The majority upheld the statutory interpretation of the Tribunal on which breaches by the Imperial Crown of a fiduciary obligation can be the subject of a claim where the fiduciary obligation in issue is (a) a legal obligation; (b) that became the obligation of Canada on confederation; and (c) something for which Canada would, if in the place of the colony, have been in breach.

The majority identified that both before and after confederation, the Crown had to act with regard to the same Aboriginal interest, in the context of the same fiduciary relationship, for the same beneficiary. The majority found that in this case at confederation, the discretionary power to affect the beneficiary’s interest was transferred from the Crown to Canada. 

The majority emphasized that the Tribunal’s interpretation of section 14(2) is consistent with the Tribunal’s understanding of what Parliament intended the extended meaning of “Crown” to be:  to remedy historical injustices committed by the Crown, both the Imperial Crown and Canada. Notably, the court identified that this interpretation is also consistent with an Indigenous perspective on the continuity of the fiduciary relationship between Indigenous peoples and the Crown before and after confederation.

Dissenting Opinions

Justices Rowe and Côté dissented in part, finding that for the Tribunal to hold the Crown liable for this claim, it must have found that the Colony of British Columbia came within the extended meaning of “Crown” under section 14(2). They determined that the Tribunal had not given reasons on whether and how, the obligation or liability underlying the claim was transferred to Canada on confederation. They believed the matter should be remitted to the Tribunal for further consideration.

Chief Justice McLachlin and Justice Brown did not agree that Canada had breached its sui generis fiduciary duty after confederation. They determined that the matter should be remitted back to the Tribunal to determine whether the legal obligation that was breached, or the liability relating to that breach, became the responsibility of Canada. 

Conclusion

The majority was very careful to give broad discretion to the Tribunal’s decision. It recognized the role of the Tribunal in resolving First Nations’ specific claims, and the wide range of evidence it would have had available, including oral evidence. The majority found that a Tribunal must be able to rely on reviewing courts to attempt to make sense of its reasons by looking to the authorities on which it relies, the submissions of the parties, and the materials before it. This may be the case even where, as the dissenting opinions outlined, there is no reasoning on the issue that can be supplemented.

This case also outlines that the court may recognize Indigenous peoples’ interest in certain land as a specific interest. The Crown in this case had a duty to act with loyalty, good faith, full disclosure and ordinary diligence regarding the band’s interest in the Village Lands.  The Crown does not owe a fiduciary duty to bands in general, it attaches to “tangible, practical and cultural” interests specific land.

Lastly, it is important to note that in colonial claims submitted to the Tribunal, where the interests at issue and discretionary powers are the same before and after confederation, Canada may be required to remedy the historical injustices.