Tribunal Holds That Canada Breached Duty Of Minimal Impairment

On November 28, 2017, the Specific Claims Tribunal ("Tribunal") released its decision regarding a taking of lands from the Tobacco Plains Indian Band ("Claimant") in 1915. The lands were located in British Columbia on the Canada-United States border and expropriated for the purposes of a Customs house and garden ("Claim Lands"). The Claimant was paid $150 for 2.97 acres of land, however, the Parties subsequently agreed that the historic value of the lands should have been assessed at $208.

The Claim also concerned a second parcel of land in which a breach of a fiduciary duty had been acknowledged by the Crown at the outset of proceedings. Accordingly, this aspect of the Claim will be assessed, along with any other compensation-related issues, during the compensation phase of the Tribunal proceedings.

This decision is significant as it represents the first instance in which the Tribunal has applied the duty of minimal impairment to lands in British Colombia known as provisional reserves. Provisional reserves were first identified in the Supreme Court of Canada decision Weywaykum Indian Band v Canada, 2002 SCC 79 [Weywaykum], and refer to those allotted reserves in which British Columbia had not yet transferred administration and control of those lands to the Crown in right of Canada.

Overview of the Claim

The Claimant argued that Canada had breached both statutory and fiduciary duties. In particular, the Claimant argued that the Crown failed to: (i) minimally impair the Claimant's interest in the Claim Lands; (ii) properly value and obtain adequate compensation for the Claim Lands; and (iii) consult with and obtain the Claimant's consent on the amount of compensation.

With respect to the legal status of the Claim Lands at the time of the taking, the Tribunal determined that an analysis of whether the Indian Act applied or whether the Claim Lands were confirmed as reserve lands was unnecessary. Rather, an analysis that focused on fiduciary duties was all that was necessary to the disposition of this Claim. On this point the Tribunal ruled that Canada was acting in a fiduciary capacity to the Claimant and breached "the expected standard of conduct owed as a fiduciary in respect of the protection of the Claimant's significant and cognizable interest in its reserve, even if it was provisional at the time of taking."

Minimal Impairment

In the decision, the Tribunal reviews the direction of the Supreme Court of Canada in Osoyoos Indian Band v...