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The IBA makes its second appearance before the SCC in Williams Lake Indian Band v Canada, SCC 36983

On April 26, 2017, Scott Robertson and Chris Albinati from Nahwegahbow Corbiere represented the Indigenous Bar Association (IBA) pro-bono in its second appearance before the Supreme Court of Canada (SCC). As intervener in the case, the IBA focused their arguments on the imperative of having Indigenous laws respected, acknowledged and implemented by the Specific Claims Tribunal (SCT) and the Federal Court of Appeal (FCA) in the adjudication and review of historical claims against the Crown. The case was the first time a decision of the SCT had been reviewed by the SCC.

The SCT is a highly specialized tribunal with a distinctive purpose and mandate to hear historical claims from Indigenous peoples against Canada in pursuit of reconciliation. In carrying out this task, the SCT is empowered with unique discretionary powers with respect to the manner in which it receives and accepts evidence. These powers ensure that oral history and other types of evidence and information which may not be readily admissible by a court of law, can be heard. In his decision, Slade J. of the SCT relied expressly on oral history evidence, given by living members of the Williams Lake Indian Band during hearings which took place in their community, to make critical findings about the location and extent of their Yucwt (Village Lands) during the pre-confederation period. These findings were central to the determination that the Village Lands were “Indian Settlements” as defined under the colonial policy at the time, and further that the Band’s tangible, practical and cultural connection to their Village Lands gave rise to a cognizable legal interest in those lands. Because of this, Slade J. was able to determine that the Colony breached its legal obligations to protect the Village Lands from pre-emption prior to Confederation, and that Canada further breached its fiduciary obligations post-Confederation when it refused to interfere with “white men’s rights” by seeking to set aside the illegal pre-emptions which were known to have affected Indian Settlements. Canada appealed Slade J.’s decision to the Federal Court of Appeal (FCA).

In its decision, the FCA proceeded to take up the highly exceptional task for a review court of reweighing and reinterpreting the evidence. In doing so, the FCA constructed an entirely different historical narrative; one that was noticeably silent on how it incorporated the oral history evidence that had been relied upon by Slade J. in his decision. Based on its different historical narrative, the FCA determined that any breach of legal or fiduciary obligations had been remedied such that the breach had never existed. The Band appealed the FCA’s decision to the SCC.

In the hearing before the SCC, most of the oral submissions and questions from the Court were focused on the interpretation of the SCT’s enacting legislation, constitutional provisions and the scope of fiduciary obligation. As a result of this, a full discussion of the critical relevance of Indigenous laws and oral history evidence to the case at bar was implicitly sidelined. For instance, Canada’s repeated focus on comparing the different quantities of lands that were lost with those provided to remedy past-mistakes was one that overlooked the different qualities of those lands that would be apparent from the Indigenous perspectives. Also, Canada’s reliance on the colonial administrators observations on the ground that certain lands were not “improved or cultivated” as a basis for drawing a factual inference that the Village Lands could not have been considered “Indian Settlements” was one that drew solely on a Eurocentric common-law perspective with respect to defining the proper use and value of Indigenous lands.
These examples were not exceptional. In fact, the bulk of the discussion regarding the extent to which Canada assumed liability for pre and post-confederation breaches took pains to dance around the proverbial elephant in the room; the undeniable fact that Indigenous laws were circumvented through the Colony’s pre-emption regime which was designed to expedite the dispossession of Indigenous peoples from their lands in order to facilitate settler colonization. As a result of this, the Crown’s assumption of perfect settler sovereignty and ownership of underlying title remained the central force shaping the discursive space through which arguments are made.

The effect of this was that advocacy for the acknowledgement of Indigenous laws and perspectives was often expressed through abstracted terms or framing of arguments like the requirement to seek “consent” of Indigenous peoples, or the need to acknowledge the “refusal” of Indigenous peoples to selling their lands or allowing them to be pre-empted. This abstraction also took place in more nuanced ways, such as framing the clear threats of the Band to go to war in order to recover their lands as a historical fact which was relevant to establishing their cultural connection to the land for the purposes of defining a cognizable legal interest. Although such arguments and terms fit the immediate purposes of establishing legal and fiduciary obligations under Canadian law, one should be mindful of the extent that such arguments could actually undermine the objective of acknowledging and implementing Indigenous laws
.
As intervener, the IBA in its oral submissions shouldered the significant burden of making it clear to the Court that Indigenous laws and perspectives exist and are necessary to understanding the nature of the connections and legal obligations that Indigenous peoples have with their lands. The IBA reminded the Court that judges are required to take an equal consideration of Indigenous laws and perspectives, and argued that doing so will provide critical insight to various points in the analysis related to defining legal interests and obligations. In this context, the IBA’s position stood out for its clear and committed position to recognizing and affirming the existence of Indigenous legal orders as a standalone fact and a reality that Canadian law simply needs to accept and start applying. A clear exercise of authority by Indigenous peoples in relation to their territory should be accepted by the courts for what it is: an example of Indigenous law being implemented and applied. Such historical, and contemporary facts, should not need to be reworked through evidentiary and fiduciary law tests, or Eurocentric standards of value in order to find relevance within Canadian law.
Scott Robertson, Associate
Nahwegahbow & Corbiere
Genoodmagejig/Barristers & Solicitors

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