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27542Victory in Kitselas Judicial Review!

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  • Don Bain
    Jun 5, 2014
    • 0 Attachment
      From: Mandell Pinder LLP [mailto:mandellpinder@...]
      Sent: 05 June 2014 15:51
      To: Diane Giroux
      Subject: Victory in Kitselas Judicial Review

      This morning, the Federal Court of Appeal released its decision in Canada v. Kitselas First Nation, 2014 FCA 150. We had the honour of acting on behalf of the Intervener, the Coalition of First Nations led by the Union of BC Indian Chiefs, in support of Kitselas. This was the first judicial review of a decision made by the Specific Claims Tribunal; the Court upheld the Tribunal's findings. This is an important victory that bodes well for the resolution of specific claims.

      In Kitselas the Tribunal found that Canada breached its fiduciary obligations in excluding from Kitselas' reserve a 10.5 acre parcel of land that was the site of the ancient village of Gitaus. The lands the Kitselas people habitually used and occupied constituted a cognizable Indian interest, and Canada had discretionary authority to say whether those lands would be allotted or not. In excluding those lands from Kitselas' reserve, Canada (through Commissioner O'Reilly) breached its fiduciary obligations. These conclusions were upheld by the Court.

      The Court recognized that Canada has fiduciary obligations to First Nations throughout the reserve creation process; not only obligations for those lands the Reserve Commissioners allotted but also in relation to lands they failed to set aside, such as village sites and settlements. These obligations began in 1871 when British Columbia joined confederation. The Court firmly rejected Canada's attempts to minimize and limit its obligations in allotting reserves.

      The Court referred to the unique history of reserve creation in British Columbia. Unlike in the rest of Canada, reserve creation in most of British Columbia did not result from a treaty process, but instead from the Crown's unilateral undertaking, expressed in Article 13 of the Terms of Union, 1871. Through this constitutional document, Canada assumed the primary role in the relationship between Aboriginal peoples and sole responsibility over Aboriginal land interests. Article 13 is foundational; it is the root of Canada's fiduciary obligations in the context of reserve establishment after Confederation.

      With this decision, the Court has rejected the idea that fiduciary obligations only arise after reserves are "provisionally approved," a minimalist position Canada has advanced for years as a basis for rejecting village and settlement claims.

      This important precedent should pave the way for claims dealing with the reserve allotment period to be resolved, whether through acceptance and negotiations with the Minister, or otherwise.

      If you have any questions or would like more information about the decision, please call or e-mail Clo or Leah.


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