Federal government disputes Kitselas claim

The federal court of appeal ruling will set a precedent for other First Nations claims cases

A federal decision to fight a ruling stating the Kitselas First Nation is owed compensation for a land transaction dating back to 1891 is baffling, says a lawyer hired by the Kitselas.

“I don’t know what their motivation is,” said Stan Ashcroft following two days in federal appeal court last week in which the federal government opposed a favourable ruling by the Specific Claims Tribunal. “It’s cost a huge amount of money and it’s baffling.”

The tribunal, set up in 2008 to hear cases involving First Nations claims on specific pieces of land, found that a 10.5 acre parcel of land on the Skeena River, containing a former village site and now known as Lot 113 and privately owned, was wrongly excluded from the original Kitselas reserve allotment in 1891. A Hudson Bay Company warehouse was built on the site.

The Specific Claims Tribunal made its decision last year and the April 7-8 court dates last week followed the federal government decision to appeal the finding.

This is the first time the government has appealed a tribunal decision. The Specific Claims Tribunal was formed as an independent body of the federal government and the government sought 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.

Although the intent of the tribunal was to quicken the settling of specific claims, that doesn’t seem to be happening, said Ashcroft.

And First Nations expected the tribunal to have a level of standing that would put its findings above easy appeal.

“It seemed like, when the specific claims tribunal was set up, that there was going to be more reconciliation,” said Ashcroft.

“That’s what it says in the act and that’s what was said in parliament but they are seeming to be taking the exactly opposite position.”

Not only will this be the first time the federal court of appeal rules on a decision by the specific claims tribunal, but it will be the first time that it rules on whether monetary compensation is owed by the federal government to First Nations for lands that were not set aside for First Nations reserves.

This will have implications for other First Nations’ claims settlements, said Ashcroft, as many other claims decisions are dependent upon the Kitselas case.

“They recently had a decision of the Specific Claims Tribunal which is dependent upon this appeal, and there are many other lawyers whose clients are dependent upon this because the reserve creation process took place over a very long period of time. [In] 1871 it started and lands weren’t conveyed until 1938,” he said.

One crucial claims case in the interior of B.C. involves the Williams Lake First Nation which this March received a favourable ruling from the tribunal that it is owed compensation for what is now downtown Williams Lake.

That ruling is also being appealed by the federal government and Williams Lake First Nations representatives were at the Kitselas appeal hearing to show their support.

“There was a lot of lands that were requested, which is the same as Williams Lake, that were turned down. And that’s what this case turns upon,” said Ashcroft.

For its part, the federal government is arguing that it should not be obligated to provide financial compensation for lands the government wrongly chose to exclude from original reserve allotments and that if there is an obligation, it should be shared with the province.

If court rules that the fiduciary duty for compensation should be shared with the province, Ashcroft said that could mean First Nations won’t receive half of the money. And it could mean more delays in an already drawn out process.

Kitselas chief Joe Bevan said in a statement that at stake is “the hope of the Kitselas people and First Nations across Canada that there can be a fair and timely resolution to specific claims … Kitselas is standing for all First Nations in our right to finally have our claims settled.

“When the Harper government challenges the decision of its own tribunal, it challenges its very relationship with First Nations people,” said Bevan.

The judges sitting on the Specific Claims Tribunal have reserved their decision. Ashcroft says he imagines it could take three to six months.

Federal government representatives did not respond to requests for comment.