Globe and Mail

For The Globe and Mail 

The Supreme Court of Canada building in Ottawa.

 

A tribunal set up to consider the historical grievances of Indigenous peoples can hold the Canadian government legally responsible for pre-Confederation acts of colonial governments, the Supreme Court of Canada ruled Friday morning.

The court made the ruling in resolving a grievance older than Canada, deciding that the Colony of British Columbia wrongly permitted settlers to take up Indigenous land in the Williams Lake area, 550 kilometres north of Vancouver, beginning in 1860.

In a majority ruling from new Chief Justice Richard Wagner, the court also said that the tribunal, which was set up in 2008 to adjudicate such disputes, is entitled to deference from the courts and must be allowed “flexibility” as it examines historical grievances.

Two judges dissented in part, and two more dissented more fully – including the now-retired chief justice, Beverley McLachlin, who has been generally known for her strong support of Indigenous rights.

The Williams Lake Indian Band says its members were pushed off their lands and nearly starved to death, beginning in 1860, and that when British Columbia joined Confederation in 1871 the new country stole more of their land.

 The band’s grievance was heard by a tribunal that took Canada more than 140 years to create – one that could hear such cases more quickly and cheaply than in a courtroom. The Shuswap people of Williams Lake won. The ruling did not mean they would get their land back, but it did mean they would be compensated with up to $150-million. An appeal court then tossed out the victory.

The Supreme Court ruling is important not only to the Williams Lake Indian Band, but to the future of the Specific Claims Tribunal. It was the court’s first chance to rule on whether the tribunal has a kind of special status, as a body set up for reconciliation, which would send a message to the courts not to interfere.

The preamble to the legislation that created the Specific Claims Tribunal says its purpose is to promote reconciliation. But the Liberal government of Justin Trudeau, which has set out reconciliation between First Nations and the Crown as an overarching goal, fought the tribunal decision, as did the previous Conservative government of Stephen Harper.

The federal government’s position was that 400 to 500 acres that were supposed to have been set aside in 1860 for a reserve at the west end of the band’s William Lake village was taken up by settlers. Twenty years later, Ottawa compensated the Indigenous community by giving it 4,400 acres at the east end of Williams Lake, another traditional area of the band, the government argued in a filing at the Supreme Court.

“Canada acted honourably and decisively to meet the Band’s long-standing need for reserve land,” the federal filing said.

The government agreed that the claims tribunal is “an important vehicle of reconciliation,” but said the courts need to be able to review its decisions on a “standard of reasonableness” – which means that the courts defer to the tribunal, unless it was far off the mark.

But the Williams Lake band urged a higher standard of deference. “While judicial deference for the decisions of administrative tribunals is the law’s standard,” the band’s filing to the court said, “we submit that for the Specific Claims Tribunal, the reviewing court should go further and guard the tribunal’s decisions from undue interference … the very raison d’être of the tribunal is the hope, and the promise, that reconciliation between First Nations and Canada will be furthered by the work of this institution. Without a high level of respect for the tribunal’s processes and decisions, a reviewing court can cripple the tribunal and turn optimism into another sorry chapter in Canada’s history.”

The band said its members had been deprived of 1,960 acres of their territory.

The claims tribunal was a joint initiative of the federal government and the Assembly of First Nations, an advocacy group. The tribunal consists of up to six federally appointed judges from superior courts across Canada. The tribunal members visited the traditional lands when they heard the case.

The tribunal upheld the Indigenous claim in 2014, ruling that the pre-Confederation Colony of British Columbia had acted dishonourably. At a time when there was a threat of an uprising, it had made a promise to protect the lands, and then broken the promise. After Confederation, Canada should have taken steps to challenge the takeover of the Indigenous lands, the tribunal said.

The tribunal’s decisions can be appealed to the Federal Court of Appeal. In 2016, the appeal court ruled that after Confederation, Canada acted honourably in resolving the dispute by providing new lands for the band.