The legacy of colonization has resulted in Indigenous communities not receiving adequate redress for Canada’s breach of legal obligations. For Indigenous Nations, the taking of traditional lands and interference with their resources has resulted in devastating socio-economic impacts. Recent decisions of the Supreme Court of Canada (“SCC”) and the Specific Claims Tribunal provide an evolving approach to awarding equitable compensation arising from Canada’s breaches during the creation and administration of reserve lands in an effort to achieve reconciliation.
The Southwind v Canada, 2021 SCC 28 decision clarified how to assess equitable compensation for Canada’s breaches of fiduciary duty in the context of reserve lands. Southwind addressed how the Lac Seul First Nation (“LSFN”) should be compensated for the illegal flooding of its reserve lands. The SCC held that Canada’s fiduciary duty required it to obtain the highest possible compensation for the flooded reserve lands, which require the lands be assessed as part of the hydroelectric project based upon their perspective, not valued as vacant bushland.
The SCC found that equitable compensation must reflect the “sui generis Indigenous interests in land,” not fee simple [para. 105]. The SCC held compensation should be based on the First Nation’s lost opportunity to negotiate a surrender reflecting the “highest value of the land” to the project itself, which in this case was for “hydroelectricity generation” [paras. 121 and 127]. The SCC held that compensation should also reflect the value of the lands from the Indigenous perspective and based upon the impacts to the Indigenous Community [para.140].
As the SCC found that Canada breached its fiduciary duties, LSFN is entitled to equitable compensation for the lost opportunity to negotiate a surrender reflecting the highest value of the land. This decision addresses the interests of First Nations to have their perspective addressed in compensation negotiations and hearings. Previously, the Crown would ordinarily negotiate compensation based upon expropriation principles, e.g., based upon the fee simple interest. Now that equitable compensation principles are affirmed, Indigenous Nations are better positioned to have their claims resolved through the Specific Claims process.
In Siska Indian Band v HMTQ, 2021 SCTC 2, a case that we were counsel on, the Tribunal considered that the core interest of Siska in the 1878 allotment of their reserves was Siska’s fishery based upon oral history [para. 50]. The Tribunal relied on evidence of Siska members to find that Siska’s “material interest in the Claim Lands reflects their dependence on salmon for sustenance and… their historical economy [para 61.].
Siska is a precedent setting decision as it is the first decision of the Tribunal to:
- award equitable compensation for fishing losses;
- apply full compound interest to bring forward historic losses to present.
The Indigenous perspective adduced through oral testimony enables Indigenous Nations to honour their stories to inform the resolution of claims. The Tribunal’s reliance on oral history evidence, the importance of the Indigenous perspective and the practice of holding oral evidence hearings in community are significant steps in the Specific Claims process that assist with achieving reconciliation. Addressing outstanding Crown liabilities for historic breaches through this process will aid in the reconciliation of past wrongs and will assist Indigenous Nations with their self-determination aspirations. The resulting compensation from the settlement of claims assists with reconciliation of past wrongs and provides a source of funds for Nations to provide opportunities for a better tomorrow.