March 18, 2018
On February 1, 2018, the Specific Claims Tribunal (“SCT”) released its decision in Siska Band v Her Majesty the Queen in Right of Canada, 2018 SCTC 2, The specific claim arises from an alleged “taking” of land in 1885 from reserves set aside from the Siska Band in 1878. The disputed land involves portions of Zacht Indian Reserve No. 5 and Nahamanak Indian Reserve No. 7 (the “Reserves”) and is located within a railway right of way (“ROW”) created in 1885 pursuant to The Government Railways Act, SC 1881 (41 Vict), c 25 (the “GRA”) (para 1).
The issue in this Claim hinges on the legality of the “measures taken by the federal Crown, Canada, to permit the [Siska Band’s] use and enjoyment of land within the Reserves to be entirely displaced in favour of the CPR” (para 14).
This decision is significant with respect to claims in relation to lands in the province that were conveyed to the Dominion government for the construction of a railway (the “Railway Belt”) since it establishes that the federal Crown’s grants to the CPR did not extinguish or displace its legal and fiduciary duties owed to affected First Nations (headnote & para 9).
The SCT held that a finding of reserve status and the presence of a railway in 1885 are not mutually exclusive. However, in accordance with section 31 of the Indian Act, 1880, compensation for the impact of a railway passing through or causing injury to a reserve was required (para 113). The SCT concluded that the phrase “passing through or causing injury” refers to “the continued existence of the Indigenous interest and that the same applies with respect to provisional reserves” (para 114).
According to the SCT, intention is paramount in determining whether a reserve was created: “[t]he question whether reserve creation in the Railway Belt depended on mutuality of intention on the part of the Province and Canada is one of fact, to be decided based on the evidence in the present matter” (para 185). This mutual intention was first revealed in Article 13 of the Terms of Union. The framework for the allotment of reserves was created in 1876 with the establishment of the Joint Indian Reserve Commission (para 185).
The SCT held that the Siska Band’s interest in the affected lands was cognizable in law and therefore express or implied language was required to extinguish the interest. The GRA does not contain any such language and therefore, according to the SCT, it was not intended to extinguish the Siska Band’s interest in the provisional Reserves. Furthermore, pursuant to section 13 of the Memorandum of Agreement between Canada and the Province of British Columbia, dated February 20, 1930, the governments agreed that reserve lands in the Railway Belt shall continue to be vested in Canada in trust for the First Nations.
The official grants to the CPR occurred in 1927 and 1928. Therefore, the legal interest of Siska Band in the Reserves could not have been impacted until the grants occurred (para 118). The SCT found that the lands were vested in the federal Crown when the grants occurred and therefore the restriction on alienation applied (para 148). As a result, the SCT held that the grants purporting to provide absolute fee simple interests were invalid (para 147). Since the GRA did not formally affect Siska Band’s reserve interest, the SCT concluded there was no taking of the land within the Reserves pursuant to the GRA (para 135).
In addition to asserting that the grants were invalid, the Siska Band argued that the granted land exceeded the parameters provided by section 9 of the Consolidated Railway Act, SC 1879 (42 Vict), c 9 (“the CRA”) (para 156). The federal Crown submitted that the GRA supersedes section 9 of the CRA, as it relates to width limitations on ‘takings.’ However, the SCT held that the creation of the ROW through the Reserves does not constitute a taking (para 156). Moreover, the SCT concluded that there is no express overtaking of section 9 of the CRA, and that this determination also applies to An Act respecting the Canadian Pacific Railway, SC 1881 (44 Vict), c 1 (para 161). In reviewing the photomap and the survey of the right of way, the SCT concluded that the width of the granted lands exceeded the limit provided in section 9 of the CRA (paras 167 and 168).
With respect to the Siska Band’s claim for breach for fiduciary duty, the SCT held that ordinary prudence mandated that, at minimum, the federal Crown inquire into the Siska Band’s concerns and consider the Siska Band’s best interests. In other words, “[t]his called for consultation. Their obvious interest would include protection of their arable land and protection from damage and continued access to their fishing stations. There was no consultation” (para 280).
With respect to the grants to the CPR, the fiduciary duties of the federal Crown required the federal Crown to assess how much land the CPR reasonably needed to operate and protect the railway (para 283). The SCT held that, at both the provisional reserve stage and the reserve creation stage, the federal Crown breached its fiduciary duties to the Siska Band. At the provisional reserve stage, the federal Crown neglected to act in the best interests of the Siska band since the federal Crown did not establish that disregarding the lands allotted as reserve lands and interfering with Siska Band’s access to the fisheries, which they relied on for sustenance, was necessary to protect the national interest in constructing the railway. At the reserve creation stage, once the reserves came within the ambit of the Indian Act, the federal Crown was required to preserve the Siska Band’s interest in the reserve from exploitation by implementing the protective provisions of the Indian Act. Therefore, the federal Crown failed to meet its fiduciary duties in relation to the Siska Band from 1885 to 1928 (paras 300-302).
The federal Crown argued that the surrender provisions of the Indian Act were inoperative from 1876 until at least 1907 since they were suspended by the 1876 proclamation. The federal Crown asserts that in 1876 the federal Crown issued a proclamation in the Canada Gazette, which suspended the application of the surrender provisions of the Indian Act in British Columbia at least until 1907 (para 321). The SCT held that in the absence of an Order in Council suspending the surrender provisions of the Indian Act, there is ambiguity surrounding the effect of the 1876 proclamation, which must be resolved in favour of the Siska Band (para 323).
Moreover, according to the SCT, the evidence demonstrates that the government believed the surrender provisions of the Indian Act were operative when the British Columbia Indian Lands Settlement Act, SC 1920, c 51 was established. This is because section 3 “removed the requirement for surrender to the extent it applied to lands cut off from the reserves by the McKenna-McBride Commission. If the proclamation remained in force after the enactment of the Indian Act, 1906, this would not have been necessary” (paras 321-323). The SCT found that the Reserves became Indian Act reserves in 1911 and therefore, the grants to the CPR in 1925 and 1928 required surrender. Since there was no surrender, the grants were conveyed without legal authority contrary to paragraph 14(1)(d) of the SCTA (para 324).
In sum, the SCT held that intention is paramount in considering when a reserve was established. The question of reserve creation in the Railway Belt depends on the mutual intention of the Province and Canada. The inquiry is fact driven.
Furthermore, the SCT held the Crown’s fiduciary obligations required it to assess how much land the CPR reasonably needed to operate and secure the railway when issuing grants to the CPR.