Fight over 10 acres could reverberate across the country

It is only the second ruling made by the Specific Claims Tribunal, but the federal government has appealed the decision and forced a judicial review.

“If we don’t fight the appeal, it’ll set a precedent and the precedent will be that all they have to do is appeal every ruling that’s ever made,” said Mel Bevan, negotiator with Kitselas Treaty Office. “All they have to do is say, ‘No,’ to every Specific Claim and force us to take it to tribunal. And if the judge rules in our favour they simply appeal it and that’s the end of it. That is something we can’t allow to happen.”

On Feb. 19, the tribunal issued a decision in favour of the Kitselas First Nation’s specific claim to its village lands. Canada formally rejected the claim in October 2009. The land in question is the ancient village site of Gitaus, which is situated in the middle of the reserve. The tribunal found that the Indian Reserve Commissioner had erroneously excluded 10.5 acres of the village site from the reserve instead of the one acre that had been requested by the Hudson Bay Company, who had a storehouse on this land.

“We took it to the tribunal and we actually won the case. Now what should have happened is that it should have been re-opened for negotiation… but (Canada) preferred not to. They preferred to appeal it,” said Bevan.

If the federal government were to win, that decision could have far-reaching consequences for First Nations in British Columbia.
“(The federal government’s application) looks at the correctness of the decision, the authority of the tribunal. It’s very, very broad and that’s why we feel so strongly that we need to intervene in this because the implications of the judicial review being in favour of Canada could impact the whole authority and veracity of the tribunal and the whole process,” said Jody Woods, research director with the Union of British Columbia Indian Chiefs.

UBCIC recently passed a resolution to partner with other First Nations and organizations to apply for intervener status. Already on board are the Nlaka’pamux Nation Tribal Council and the Williams Lake Indian Band. WLIB recently committed $5,000 to the cause. Woods expects the price tag to fight the appeal to be close to $90,000.

WLIB has a similar issue before the tribunal and the outcome of this judicial review would have a direct bearing upon the band’s claim, said Woods.

In the 53-page argument filed by the federal Department of Justice with the Federal Court of Appeal on Aug. 23, Canada states it did not have a fiduciary duty to the Kitselas First Nation and therefore did not breach that duty when the 10.5 acres were excluded from the reserve.

“Canada’s using arguments that are trying to deny their responsibilities in the reserve-creation process in BC. That’s what they’re doing in the judicial review,” said Woods.

The Specific Claims Tribunal was created under the “Justice at Last” initiative to move claims forward in an expedited manner, as well as for the federal government to “fairly resolve its outstanding lawful obligations,” said Woods.

“The commitment to that promise is really called into question when Canada is calling for a judicial review in such an expansive way,” she said.

The scope of the review, she adds, means that if the federal government is successful, the creation of reserves from the 1860s to 1938 could all be impacted.

“So (the 10.5 acres) seems like a tiny issue but the impact of it could be enormous,” Woods said.

Kitselas First Nation receives no funds to participate in the judicial review.

“It’s not cheap to fight,” said Bevan. “It’ll probably be more than (the financial compensation) we get in the end.”

No date has been set for the judicial review.