In Canada v Kitselas First Nation,1 the
Crown in Right of Canada ("Canada") applied to the
Federal Court of Appeal (the "Court") for a judicial
review of a February 2013 decision of the Specific Claims Tribunal
("SCT"), which found that the Kitselas First Nation
("Kitselas") had validly established that Canada had
breached a legal obligation to the Kitselas as a result of the
non-inclusion of a 10.5 acre parcel of land in a reserve initially
identified in 1891.
Canada submitted that the SCT Judge erred in law by holding that
Canada had a fiduciary duty at the reserve allotment stage; the
Judge made unreasonable determinations of fact, and of mixed fact
and law in reaching his decision; and the Judge erred in finding
that Canada was solely liable for breaches of Canada's alleged
duty with respect to the excluded land.
Why the Decision is Important
The decision is important as it was the first Judicial Review of
a decision of the Specific Claims Tribunal, and has clarified
several key issues of importance to resolution of historic claims.
The following issues were considered by the Federal Court of
What standard of review was applicable;
Whether the Judge erred by concluding that Canada had a
fiduciary duty to the Kitselas in the reserve allotment
If the Judge did not err, whether the Judge erred by finding
that Canada breached its duty; and
If Canada did breach the duty, whether the Judge erred by
finding Canada solely responsible for any losses flowing from the
What is the Sandard of Review?
The Court agreed with Canada that the appropriate standard of
review for the SCT ruling of law at issue was the standard of
correctness. In making its determination, as per
Dunsmuir,2 the Court considered the purpose of
the Specific Claims Tribunal Act,3 the nature
of the issue subject to review, the specialized expertise of the
SCT and the existence or absence of a privative clause.
Is There a Fiduciary Duty in the Reserve Allotment
In support of its submission that there was no fiduciary duty,
Canada argued that although the land excluded from the Kitselas may
have been habitually used by the Kitselas, "habitual use"
alone was not a cognizable interest since it was insufficiently
specific, and Canada did not take discretionary control of the
The Court did not accept Canada's submissions and agreed
with the SCT Judge that Canada had a fiduciary duty owed to the
Kitselas at the reserve allotment stage. This aspect of the
decision is an important victory for First Nations. In making its
determination, the Court cited Ross River4 and
Wewaykum,5 which both supported that the
reserve creation process engaged the Crown's fiduciary
Did Canada Breach its Fiduciary Duty?
The Court found that the SCT Judge's conclusion, that there
was no disclosure of the exclusion of the 10.5 acres of land to the
Kitselas, fell within the range of possible, acceptable outcomes
which were defensible in respect of the facts and the law. The
Court also found that it was reasonably open for the SCT Judge to
conclude that Canada's commissioner did not exclude the 10.5
acres for public transportation purposes, as argued by Canada.
Should Canada be Solely Responsible for any Losses Flowing from
the Breach of its Fiduciary Duty?
Canada argued that British Columbia also assumed a liability in
this case, and that Canada's compensation responsibilities
should be reduced accordingly. The SCT Judge bifurcated the issues
of validity of the claim and compensation; accordingly, the Court
concluded that the matter of compensation should be dealt with at
the compensation stage of the hearing.
The Federal Court of Appeal dismissed Canada's judicial
review application. The next phase of the litigation will focus on
the compensation payable to the Kitselas and the extent of
obligations to pay as between the federal and provincial
* 2014 FCA 150. 1Canada v Kitselas First Nation, 2014 FCA
150. 2Dunsmuir v New Brunswick, 2008 SCC 9
[Dunsmuir]. 3Specific Claims Tribunal Act, SC 2008, c
22. 4Ross River Dena Council Band v Canada, 2002
SCC 54 [Ross River]. 5Wewaykum Indian Band v Canada, 2002 SCC 79
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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