Settling Up for Illegal Settlement – Canada to Compensate T’exelcemc for Occupation of Village Lands
More than 150 years after being dispossessed of their lands by incoming settlers, and after almost three decades of legal disputes, T’exelcemc, or Williams Lake First Nation (“WLFN”), has reached a tentative agreement with the federal government to receive $135M in compensation for the losses they suffered as a result of Canada’s failure to protect their lands. This announcement marks the potential culmination of WLFN’s efforts to secure justice, which have wended their way through the Specific Claims Process, the Specific Claims Tribunal, Federal Court, and the Supreme Court of Canada (“SCC”). While the settlement must still be approved by WLFN’s members, it has the potential to bring substantial change to a community that has fought long and hard for this outcome.
The T’exelcemc, Williams Lake, and the Arrival of Settlers
The T’exelcemc have belonged to the Secwepemc Nation (also known as the Shuswap Nation) for over 6500 years, and are one of the 17 Secwepemc Nations that form Secwepemculecw, the greater stewardship land area extending from Shuswap Lake in the south to Quesnel Lake in the north, and from the Columbia-Kootenay Range in the east to the Alexis Creek area in the west. Since time immemorial, the T’exelcemc stewarded and occupied a large area, including what is now the city of Williams Lake, named for Chief Williams of the T’exelcemc.
In 1858, the Colony of British Columbia was established by the British Empire, and settlers rapidly began occupying and claiming lands throughout. The Fraser Canyon Gold Rush drew many into the interior and northern areas of the colony, including Williams Lake. The influx of settlers caused substantial concern for many First Nations, some of whom were prepared to engage in armed conflict to protect their territory. In response, Governor James Douglas promised that colonial authorities would reserve lands for the First Nations. He issued Proclamation No. 15, which established a policy of land pre-emption whereby settlers could acquire lands within the colony, but not those that were already reserved for First Nations. Colonial authorities instructed that lands should be reserved for the T’exelcemc at their existing village area within and around Williams Lake, but this did not occur; instead, settlers displaced the T’exelcemc.
When British Columbia joined Confederation in 1871, Canada became responsible for creating reserves for First Nations. In 1879, Chief William of the T’exelcemc penned a letter to the British Colonist newspaper setting out the dire situation of his people that, along with other advocacy, prompted the Federal and Provincial governments to take notice of the situation. While government officials acknowledged the mistake and, in 1881, reserved lands near Williams Lake for the T’exelcemc’s use, the officials responsible refused to return the lands that settlers had occupied because it would interfere with “white men’s rights.”
A Long Time Coming
It was not until 1993 that T’exelcemc researchers found evidence that the city of Williams Lake had been a T’exelcemc village site that was illegally occupied by settlers. In 1994, WLFN submitted a claim for wrongful loss of land under Canada’s Specific Claims Policy, which the federal government rejected. WLFN continued to pursue this claim through the Indian Claims Commission, a temporary, federal advisory body whose role was to investigate rejected claims and issue non-binding decisions. The Indian Claims Commission was seriously limited by its lack of independence and authority to make binding decisions and was largely ineffective. These issues remained until, in 2008, the Specific Claims Tribunal (the “Tribunal”) was established and imbued with the authority to hear and decide claims by First Nations relating to the Crown’s failure to uphold their obligations. It took another six years for the Tribunal to issue its decision about WLFN’s claim.
The 2014 Specific Claims Tribunal Decision
Twenty years after WLFN submitted its claim under the Specific Claims Policy, the Tribunal issued its findings of whether the colony of British Columbia and Canada had breached their obligations to WLFN. The decision addressed a myriad of factual and legal issues and involved oral history, ethnographic evidence, and thousands of pages of historical documents. It ultimately concluded that there had been a T’exelcemc village site in the heart of what is now the city of Williams Lake and that the pre-emption of that site by settlers had contravened the policy established by Governor Douglas.
One of the key issues before the Tribunal was whether the Crown’s failure to protect First Nations’ lands from pre-emption breached its legislative obligations and constituted a breach of a fiduciary duty owed by colonial officials. The Specific Claims Tribunal Act (the “SCT Act”) sets out that breaches of the Indian Act or any other legislation “pertaining to Indians or lands reserved for Indians” by colonial or Canadian authorities can ground a claim to the Tribunal. Canada argued that Proclamation No. 15 was not legislation that pertained to “Indians or lands reserved for Indians”, and that the pre-emption policy did not impose a duty on colonial officials to ensure First Nations’ lands were protected. Canada also argued that breaches of fiduciary duty could not ground pre-Confederation claims to the Tribunal and that, even if they could, there was no such duty in this case. In contrast, WLFN asserted that because Proclamation No. 15 conferred a discretionary power on the Crown to protect First Nations’ lands, the Crown assumed a fiduciary duty to act in their interests.
The Tribunal found that because Proclamation No.15 specifically contemplated protections for First Nations’ lands, it was legislation that pertained to “Indians or lands reserved for Indians”, and positive action by the Crown was required to achieve its purposes. The Tribunal also agreed with WFLN’s position that the Crown had assumed a fiduciary duty to act in their interests and failed to fulfill this obligation. Further, the Tribunal found that after British Columbia joined Confederation, the Province had assumed responsibility for reserve creation but had failed to meet those responsibilities with respect to the T’exelcemc. Ultimately, the Tribunal held that the Crown has failed to take the actions necessary to protect the T’exelcemc’s land and had breached its obligations.
Canada’s Appeal to the Federal Court
Having found that WLFN’s claims were well-founded, the next stage of the process at the Tribunal would have been to determine compensation. However, Canada applied for judicial review of the decision in Federal Court in 2015.
The Federal Court was skeptical of the Tribunal’s findings, namely that Proclamation No. 15 imposed a positive obligation on Canada to protect First Nations by investigating or refusing settlers’ claims to their lands. The Court also declined to comment on whether Canada owed, and breached, a fiduciary duty to WLFN, and whether Canada could be liable for any pre-Confederation breaches committed by the Colony of British Columbia.
The Court found the Tribunal’s decision was flawed, contesting the assertion that acting in the best interests of the T’exelcemc required Canada to allocate their traditional lands in Williams Lake as a reserve and finding that, in what the Court described as a “balancing of competing interests”, federal officials took a reasonable path in deciding not to interfere with the illegal occupation of T’exelcemc lands by settlers. Ultimately, the Court held that since Canada later provided the T’exelcemc with reserve lands, they had remedied any possible breaches by the former colony. In an unusual turn of events, the Court substituted its own decision for that of the Tribunal, despite the standard of review being reasonableness.
The Final Decision – WLFN at the SCC
Not about to give up, WLFN appealed the Federal Court’s decision to the SCC, which issued its decision in 2018. In addition to addressing whether Canada or the pre-Confederation Crown owed and breached legal or fiduciary obligations to the T’exelcemc, the SCC also considered whether the Federal Court had applied the appropriate standard of review to the Tribunal’s decision.
The SCC found that the appropriate standard of review for all questions in the case was reasonableness, as they involved the Tribunal’s interpretation of its home statute (the SCT Act), fiduciary law, and the resolution of Indigenous claims against Canada and the colonial governments, all areas in which the Tribunal is entitled to substantial deference. The Federal Court had incorrectly applied a correctness standard for some questions, a reasonableness standard for others, and had declined to address some questions altogether.
The SCC reviewed the Tribunal’s analyses and determined that, on each issue raised by WLFN, the Tribunal had come to a reasonable decision. Though a split decision, with the dissenting Justices of the opinion that the matter should have been reconsidered, the SCC ultimately allowed WLFN’s appeal and restored the original result reached by the Tribunal.
After another four years of negotiation and mediation following the SCC’s decision, the settlement agreement between WLFN and Canada has finally been completed. The total amount of $135M approaches the maximum $150M award available under the SCT Act. The final step in authorizing the agreement is to obtain the legal consent of WLFN’s members; a community referendum is scheduled for June 29, 2022, for this purpose. If ratified, a portion of the settlement would be used to provide individual settlement payments to individual members of WLFN, and the remainder would be professionally managed as a community trust for future generations, including for work on infrastructure and cultural revitalization programs. With the first of three community meetings to discuss the question having occurred on May 12th, and with Kúkpi7 (Chief) Willie Sellars urging members to affirm the settlement, Williams Lake First Nation stands at an important crossroads.
Our Indigenous Law Group and Litigation Group work collaboratively to provide our Indigenous clients with the best possible representation and service. If you have any questions or comments relating to what we discussed above, feel free to reach out to Tamara Napoleon and Cameron Pollock from our Indigenous Law Group.