THE federal government will not be asking the country's highest court to overturn a series of court decisions which ruled that the Kitselas First Nation is owed compensation for a land transaction dating back over 120 years.
The government had 60 days to file an appeal with the Supreme Court of Canada following last year's Federal Court decision which upheld an earlier Specific Claims Tribunal ruling that dates back to 1891 and deals with a 10.5 acre parcel of land located on the banks of the Skeena River on traditional Kitselas territory.
The tribunal, which acts like a court with a judge and was set up in 2008 to hear cases involving First Nations claims on specific pieces of land outside of the treaty process, 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, now known as Lot 113 and home to a provincial park.
The federal government appealed the tribunal's finding to the federal court. It was the first time the government appealed a tribunal ruling and the case was heard over two days last April.
But the federal court ruled in June that the favourable to Kitselas ruling was valid, and the government's opposition to the ruling was not, leaving the window open for the crown to appeal to the Supreme Court of Canada.
Stan Ashcroft, the lawyer representing Kitselas, confirmed the federal crown did not seek leave to appeal, meaning the tribunal process now moves to either a compensation hearing or settlement.
In appealing the tribunal's decision, the 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.
While the judge did not agree, he ruled that in fact, the tribunal process stated the issue of compensation – and whether or not the province has a share in the liability of however much compensation would eventually be owed by Canada – was to be decided after the issue of the claim’s validity. Now that the appeals process is complete, that issue of compensation and whether the province shares that responsibility can be dealt with. The tribunal can award up to $150 million in federal money.
The Kitselas case gives precedent to other specific claims cases across the country, especially the Williams Lake Indian Band's specific claims tribunal ruling, similarly favourable and which is also being appealed by the federal government. That appeal will be heard in federal court in May.
Last year, Specific Claims Tribunal chair Justice Harry Slade released his fifth annual report on the tribunal, warning that the tribunal was in serious jeopardy if the federal government did not provide more resources and staff.
“I am the only full time member, and the chairperson of the tribunal. My term expires in December, 2015. Without the appointment of one or more full time members in the interim there will be no ability to implement a succession plan or service the case load. The tribunal will fail,” he writes. “These concerns have been raised with the [federal] Minister of Justice and the [federal] Minister of Aboriginal Affairs and Northern Development. There has been no adequate response from government.”