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Court affirms Kitselas land compensation

The Kitselas First Nation is still owed compensation for a land transaction dating back to 1891.

That’s the word from the federal court of appeal, which, following two days in court this April, ruled June 5 that last year’s favourable ruling by the Specific Claims Tribunal, a tribunal set up in 2008 to hear cases involving First Nations claims on specific pieces of land, is valid and that the federal government’s opposition to the ruling is not.

“I would dismiss this judicial review application,” writes Justice Robert Mainville in the decision. “The judge reached the appropriate legal conclusion with respect to the fiduciary duty owed in this case by Canada to the Kitselas.”

The federal government, Kitselas, the Specific Claims Tribunal, and First Nations interveners spent two days in federal appeals court this April arguing the government’s appeal of the tribunal ruling, which dates back to 1891 and deals with a 10.5 acre parcel of land located along the banks of the Skeena River on traditional Kitselas territory.

The tribunal found that the land, which contains a former village site, was wrongly excluded from the original Kitselas reserve allotment in 1891. A Hudson Bay Company warehouse was located on the site, which became known as Lot 113 and is now a provincial park.

The federal government’s decision to appeal the tribunal’s finding was the first time the government has appealed a tribunal decision.

The Specific Claims Tribunal was formed as an independent body of the federal government with the government seeking the opinion of the Assembly of First Nations prior to its establishment. It is not part of the more sweeping negotiations involving comprehensive claims which lead to treaties being signed by First Nations and governments.

In its appeal, the federal government argued that it should not be obligated to provide financial compensation for lands the government wrongly neglected to include in original reserve allotments and that if there is an obligation, it should be shared with the province.

To the latter point, the appeals court ruled that, as laid out in the tribunal judge’s decision, details surrounding compensation owed by are to be dealt with at the compensation stage of the hearing.

“Under the judge’s order of July 3, 2012, the issues of validity and compensation with respect to the claim were bifurcated, with the understanding that the issue of validity would first be determined separately from the issue of compensation,” reads the decision. “In fact, the judge made no final finding in his reasons with respect to the potential liability of British Columbia affecting the compensation that would eventually be owed by Canada.”

But the compensation stage of the hearing cannot begin until the appeals process is complete. Federal representatives refused to say whether they would be appealing the June 5 decision. Canada has 60 days to file an appeal with the Supreme Court of Canada.

“Should the Government of Canada seek to appeal the Federal Court of Appeal decision, Canada’s reasons will be fully set out in its application for leave to appeal to the Supreme Court of Canada,” read a statement from Aboriginal Affairs and Northern Development Canada.

Given the precedent value of the case and how much it could mean to Canada in terms of money, Kitselas lawyer Stan Ashcroft said the government could decide it is worth it to take it to the highest court.

A second federal appeal to a tribunal decision was filed earlier this year regarding a similar favourable Specific Claims Tribunal decision for the Williams Lake Indian Band.

“If Kitselas had lost its case ... then that would have severely damaged the Williams Lake band,” said Ashcroft.

In fact, Ashcroft says this ruling gives precedent to a number of specific claims cases across Canada – something which could prove expensive for the federal government.

“Sometimes lessons learned are expensive,” he said. “Hopefully what it will do is achieve or at least induce Canada to act better in the future.”

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