Dear Ministers Bennett and Wilson-Raybould,
We write to urge you to immediately withdraw Canada’s application for judicial review of the Specific Claims Tribunal’s (“Tribunal”) decision in the Akisq'nuk First Nation’s specific claim and to honour the Tribunal’s decision as final and binding.
On February 5, 2016 the Tribunal released its decision in the Akisq’nuk specific claim, agreeing that Canada breached its legal obligations to the Akisq’nuk during the reserve creation process when it 1) failed to protect the entirety of Columbia Lake Indian Reserve No. 3, confirmed in 1884 by Indian Reserve Commissioner Peter O’Reilly, resulting in the loss of 741 acres of reserve land; and 2) wrongfully excluded 2,960 acres of land from the same reserve as recommended by the federal-provincial Royal Commission on Indian Affairs (McKenna-McBride Commission) in 1916.
We are astonished and deeply disappointed that your government is challenging the authority of this unique, independent and specialized Tribunal, established by federal legislation in 2008 to rectify Canada’s conflict of interest in adjudicating claims and restore confidence in the integrity of the specific claims process.
The Specific Claims Tribunal Act stipulates that Tribunal decisions are final and binding and not subject to appeal. A judicial review provision exists for matters where the Tribunal’s jurisdictional reach, procedures and correct application of the law are at issue. Canada’s practice to date has been to seek what is tantamount to full appeals of Tribunal decisions. On February 29, 2016 the Federal Court of Appeal overturned the 2014 Specific Claims Tribunal ruling in favour of the Williams Lake Indian Band’s village site specific claim, and took the unusual step of rendering a new decision based on the facts of the claim. The Court referred to its own substituted judgement as an “appeal.”
Members of the Tribunal have the necessary legal and historical expertise to decide complex historical grievances pertaining to Canada’s legal obligations under the Indian Act to protect First Nations lands and assets. The Tribunal’s decision in the Akisq’nuk claim is based on extensive reviews of documentary evidence and comprehensive community hearings. The decision provides a measure of justice to the Akisq’nuk for Canada’s historical wrongdoing. Canada’s judicial review application undermines the power, authority and reconciliatory potential of the Tribunal and is a declaration that the federal government is walking away from resolving land claims.
The scope of Canada’s application in the Akisq'nuk claim establishes a troubling continuity between the previous government’s dishonourable actions and those of your government. This approach has already cost Canadians millions of dollars in unnecessary legal expenses and undercuts Canada’s international obligations under the UNDRIP, its obligations and public commitments to Indigenous Peoples in Canada and its ethical integrity: instead of moving forward in a genuine spirit of truth, justice and reconciliation, Canada’s conduct sends a clear message that despite the new Liberal government’s commitment to work towards reconciliation, you have no intention of fairly and justly resolving specific claims.
We urge you to reconsider your decision to apply for a judicial review of the Tribunal’s Akisq’nuk decision in light of the implications of such a flawed approach.
On behalf of the UNION OF BC INDIAN CHIEFS
Grand Chief Stewart Phillip
Chief Robert Chamberlin
Kukpi7 Judy Wilson
Chief Maureen Chapman, Chair, BC Specific Claims Working Group
Union of BC Indian Chiefs Council
National Chief Perry Bellegarde, Assembly of First Nations
AFN Chiefs Committee on Claims
BC Assembly of First Nations
First Nations Summit