JFK Court Report: Recent Cases from Specific Claims Tribunal

The Specific Claims Tribunal is the administrative body responsible for deciding specific claims filed by First Nations. Specific claims deal with past grievances related to the Crown’s obligations under historic treaties and/or the administration of First Nation land and assets.

Waywayseecappo First Nation v Canada (Minister of Indian Affairs and Northern Development); Gamblers First Nation v Canada (Minister of Indian Affairs and Northern Development, 2015 SCTC 4

Here, Waywayseecappo First Nation (“Waywayseecappo”) and Gamblers First Nation (“Gamblers”) both located in western Manitoba filed separate claims regarding the surrender of portions of Indian Reserve 62 (“IR 62”) and the subsequent creation of Indian Reserve 63 (“IR 63”) in the 1880s. Waywayseecappo claimed that the Crown breached Treaty 4 and the Indian Act by illegally surrendering part of IR 62. Whereas, Gamblers alleged the surrender was motivated by its request and an agreement between Gambler, Waywayseecappo and the Crown to exchange part of IR 62 for a new reserve. Gamblers claimed that the Crown breached its fiduciary duty by setting aside less land in IR 63 than was taken from IR 62 that was insufficient in quality and quantity. The Tribunal ordered that these two claims be heard together.

The Crown brought an application to disallow the admission of two expert reports at the hearing of the validity phase of the claims filed by Waywayseecappo and Gamblers.

The Crown opposed Waywayseecappo’s expert report which summarized historical documents identifying the eligible voters at the time of the surrender. The Crown argued that the sole issue of which the report is relevant is whether the surrender meeting for IR 62 met the quorum requirements under the Indian Act. It was argued that the report is no longer relevant or necessary because of an admission made by the Crown that there is “no available evidence” to support that there was proper quorum and the absence of such evidence does not invalidate the surrender.

The Tribunal held that the onus is on Waywayseecappo to establish the evidence to support its position. The position that there is proof of the deficiency is very different than there being an absence of evidence one way or the other. Therefore, the Tribunal held that “Waywayseecappo is entitled to allege that there is reliable proof that quorum requirements were not met (rather than accept that there was no evidence one way or the other).”

Second, the Crown opposed the admission of Gamblers’ expert report which provided an overview of the government interactions with and the movements of the Gamblers from the negotiation of Treaty 4 to the creation of IR 62 and 63. The Crown argued that the majority of the report did not relate to the interactions of Waywayseecappo, Gamblers and the Crown at the time of the surrender and therefore the report was irrelevant to the events in dispute. It was also argued that the report merely recited the historical record without providing insight or context.

The Tribunal held that it is reasonable to review Gamblers’ movements before and after the surrender to assess the relationship with Waywayseecappo. Therefore, the report is necessary and relevant to the enquiry of why IR 63 was created. It was further decided that the role of the expert is “not one of advocacy” and allowing documents “to speak for themselves” is an accepted method of reporting a course of events or circumstances. Experts are permitted to present their viewpoint of the “story” and then justify it by referring to other sources.

The Tribunal permitted the reports to be entered into evidence. It was stated that “[w]hether and on what topics the authors may testify before the Tribunal will be subject to their respective qualification as experts.”

This case is interesting as it cautions against parties attempting to sidestep contentious issues by stating that there is no available evidence to prove an issue one way or the other. Parties at the Specific Claims Tribunal are entitled to allege that there is reliable proof of their position.