Williams Lake Indian Band has decided go to Canada's highest court to contest the Federal Court of Appeal's recent decision to overturn the Specific Claims Tribunal that ruled in the band's favour in 2014.
"The WLIB, deeply disappointed with Canada’s decision to place yet another barrier in the path to resolution of its legitimate and valid claim, has now confirmed that it will apply for leave to appeal this decision to the Supreme Court of Canada," the band stated in a press release Thursday.
In 2014, the Specific Claims Tribunal had concluded that the Band had village lands (ie: an “Indian Settlement”) in Williams Lake at the time the Colony of British Columbia was established in 1858, and that the Colony had failed to ensure that the Village Lands were protected for the Band from pre-emption by settlers.
The Tribunal concluded that Canada had become responsible for the Colony’s failure to protect the Band’s village lands and also held that Canada breached its fiduciary obligations when federal officials and reserve commissioners allowed the unlawful pre-emptions to trump the Band’s interests.
Federal officials took no steps to try to acquire the Village Lands from the settlers and instead allotted other lands (“Sugarcane”) as reserves of the Band.
The area in question (“Village Lands”) includes Williams Creek, Scout Island, Williams Lake Stampede Grounds, the city’s downtown core, and a plateau north of the downtown core.
WLIB Chief Ann Louie said the Federal Court of Appeal acted in an unusual and unprecedented fashion by overturning the Specific Claims Tribunal ruling.
“The Court (FCA) approached the judicial review more in the manner of an appeal, which we consider unjust, unfair and unlawful," Louie said. "Federal legislation stipulates all Tribunal decisions are to be final, binding and not subject to appeal. Despite this, and clear guidelines set out in judicial review provisions, the Federal Court itself even described its rendering of this ‘new decision’ as an appeal.”
Chief Louie said at the time of the judicial review in May 2015 the community was concerned it was being treated like a court of appeal.
"At the time, we felt this was wrong and that it was handled incorrectly, and today our doubts about the process have been realized."
Louie said the Specific Claims Tribunal Act states that judicial reviews are there to assess whether the judge erred in applying the act itself, not to retry the case.
The Specific Claims Tribunal is a unique independent body of Superior Court justices, which was established in 2008, to rectify Canada’s conflict of interest in adjudicating claims and restore confidence in the integrity of the specific claims process to First Nations.
Tribunal members have the 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.
Tribunals do not return lands to First Nations, but instead financially compensate them to a maximum of $150 million.
“Canada must seriously reflect on the paternalistic, overreaching nature and injustice of the Federal Court’s decision," said Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs in a press release. "This ruling completely undermines the independence and authority of the Tribunal that Canada established through legislation to restore legitimacy to the specific claims process and in so doing, further erodes First Nations confidence in the process to resolve these grievances.” Grand Chief Stewart said the substantive historical and legal specific claim issues must be heard by judges with historical knowledge and expertise in Aboriginal law, as intended.
In applying for leave to appeal to the Supreme Court of Canada, WLIB will contend that the Federal Court altered many of the Tribunal’s findings of fact, based on its own re-weighing of the evidence and without the benefit of expertise in the area of Aboriginal law or land claims, thereby substituting vastly different conclusions based on its own review of the facts of the case, dismissing the Band’s claim on the basis that it received alternate reserve lands as a replacement for their village.