November 25, 2021
Maurice Law has been successful in relation to a series of bifurcation motions before brought by the Crown before the Specific Claims Tribunal. Bifurcation is a procedural means to split a claim into discrete phases to address only certain issues at a time, rather than have the Tribunal determine all issues at once.
In Red Pheasant Cree Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 3, a claim relating to the Crown’s failure to provide agricultural benefits and instruction in accordance with the terms of Treaty 6, the Crown brought an application to bifurcate the claim into a liability phase and a compensation phase. Red Pheasant Cree Nation, represented by Steve Carey, Amy Barrington, and Susannah Walton, opposed this application on the grounds that bifurcation would create undue delay and prejudice.
The Tribunal held that bifurcation should not be ordered simply because a party prefers to have the proceeding heard in separate stages. When parties disagree on whether to bifurcate, the Chairperson of the Tribunal will grant bifurcation only if it will promote the just, cost-efficient, and timely resolution of the claim. Bifurcation should only be granted in exceptional cases, and the burden on proving whether the order should be granted lies with the party seeking bifurcation.
In Red Pheasant’s case, the Tribunal found that the Crown had not met the burden of proving bifurcation should be granted for a variety of reasons, including:
There was no evidence that issues involving validity and compensation were sufficiently complex to require separate proceedings.
The Crown had already admitted validity in part, so it was guaranteed that compensation would have to be determined.
The evidence required for validity and compensation is similar, as both relate to a historical account of what was provided in Treaty 6.
There was no evidence that bifurcation would increase the likelihood of settlement, as the parties had been attempting to settle the claim since 2013 without success.
There was no evidence that the Crown would suffer prejudice if the proceeding was held in one phase.
As the Crown had not yet prepared its case on compensation and acknowledged that it did not intend to do so until validity was determined, there would be a delay between the conclusion of the validity stage and the commencement of the compensation stage.
In Kahkewistahaw First Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 4, the Claimant, represented by Ryan Lake and Sheryl Manychief, also opposed a bifurcation application in their specific claim arising from flooding caused by the illegal construction and operation of water control structures built at Crooked Lake and Round Lake. The Tribunal cited Red Pheasant Cree Nation v Her Majesty the Queen in Right of Canada, 2021 SCTC 3 and concluded that bifurcation would not result in the just, cost-efficient, and timely resolution of Kahkewistahaw’s claim.
In addition to the reasons found in the Red Pheasant application, bifurcation would not result in a more efficient resolution to this claim as determining the nature, location, timing, and cause of the flooding will be a complex exercise and require opinions from various experts, whose research will be relevant to both causation and damages. The claim should therefore be heard in one proceeding, to allow the issues to be comprehensively put forward without additional costs and delay.
These successes for Red Pheasant and Kahkewistahaw show how the Tribunal’s mandate to provide justice to First Nations claimants and commitment to providing a just, timely, and cost-effective resolution to these claims will shape their decisions at all stages of hearing specific claims.