The Federal Court of Appeal set aside an interlocutory and final decision of the Specific Claims Tribunal on the basis that Canada had been denied procedural fairness. In a claim involving whether Canada breached its fiduciary duty to a First Nation in southeastern British Columbia relating to the allocation of reserve land, the Chairperson of the Tribunal relied upon academic texts, and documents cited in those texts, on the basis of judicial notice. Such additional materials were dispositive to the Tribunal’s decision that Canada had breached its fiduciary duty. The Federal Court of Appeal held that the Tribunal went beyond the proper scope of judicial notice, and denied Canada a meaningful opportunity to present its case fully and fairly.

The underlying claim was filed by the Akisq’nuk First Nation, part of the Ktunaxa Nation, relating to the Columbia Lake reserve in southeastern British Columbia. The Akisq’nuk alleged that Canada breached its fiduciary duty by excluding 960 acres of land originally allocated by Reserve Commissioner O’Reilly in 1886, and by failing to enforce an order of the McKenna-McBride Commission in 1915 allocating an additional 2960 acres of land to the reserve. The first phase of the proceeding before the Specific Claims Tribunal concerned the validity of the claim against Canada.

The claim was heard by the Honourable Harry Slade, the Chairperson of the Tribunal, over three days. The parties filed an agreed statement of facts and a book of common documents. There was no oral history or expert evidence. After judgment had been reserved for nine months, Justice Slade issued a memorandum indicating that he had consulted three historical treatises that had not been adduced in evidence: Land, Man and the Law (1974) by Robert Cail, Making Native Space (2002) by Cole Harris, and A Narrow Vision (1986) by Brian Titley. He also noted that he may consider historical documents footnoted or referenced in the texts. Canada objected to the Tribunal’s reliance on the additional materials, and a hearing on the issue was held.

In February 2016, the Tribunal issued a decision in which it dismissed Canada’s objections to the use of the additional materials: 2016 SCT 2. The Tribunal held that reliance upon the materials fell within the scope of judicial notice. On the following day, the Tribunal issued its final decision in this phase of the proceeding, finding that Canada had breached its fiduciary duty to the Akisq’nuk: 2016 SCT 3. As part of this decision, the Tribunal made findings that Canada had a duty to refer any disagreements with the Province about the allocation of reserve land to the Secretary of State for the Colonies.

The content of the principles of procedural fairness vary with the context. In the circumstances of this proceeding, the parties were entitled to a meaningful opportunity to present their cases fully and fairly. This required that they be informed of, and know, the case they had to meet, and be afforded the opportunity to adduce evidence and make submissions on the issues. The Court of Appeal noted that the Specific Claims Tribunal Act refers to the need for an independent tribunal that is designed to respond to the “distinctive task” of adjudicating specific claims. Dawson J.A. stated:

I am also mindful of the need to respect the choices of procedure made by the Tribunal ... However, the preamble to the Act requires the Tribunal to adjudicate specific claims “in accordance with law and in a just and timely manner.” Requiring the Tribunal to afford a meaningful opportunity to present the parties’ cases fully and fairly, informed by the knowledge of the case to be met, is consistent with the mandate and special role of the Tribunal. It is also respectful of choices of procedure made by the Tribunal as long as those choices are consistent with affording the parties the meaningful opportunity to participate described above.

The Court of Appeal reviewed the nature of the claim advanced against Canada. In regards to the 1886 proposed allocation, the case concerned whether the surveyor failed to follow the directions of the Reserve Commissioner. The case advanced with respect to the events of 1915 concerned whether Canada was obliged to protect the interests of the Akisq’nuk relating to the additional land. There was no assertion that Canada had a fiduciary duty to refer any disagreement between Canada and British Columbia to the Secretary of State for the Colonies, although the issue was raised briefly by counsel for Canada in oral submissions, and taken up in reply by counsel for the Akisq’nuk.

The additional materials relied upon by the Tribunal were voluminous and dealt with a diversity of issues. The academic texts were scholarly in nature and presented selected facts to support the author’s thesis; the selected facts “did not necessarily present a holistic picture”. Dawson J.A. held:

The relevance of the scope and nature of the additional material is this. The Akisq’nuk argue that “Canada was given a proper opportunity to respond, and object to specific facts or opinions, and provide any additional material. It chose not to do so”. However, the scope and nature of the additional material was such that this was largely an empty opportunity. As explained below, any meaningful opportunity to respond required greater particulars about the proposed use of the additional material than that provided by the Tribunal. For now it is sufficient to state that the volume of information identified by the Tribunal was such that Canada could not fairly be expected to refute any and all aspects of the information, particularly when the Tribunal’s view of the relevance of the information was unknown.

The Court of Appeal found that the Tribunal was required to identify what facts it proposed to judicially note, and the issues to which each fact pertained. The permissible scope of judicial notice varies according to the nature of the issue under consideration, and stricter admissibility criteria are applied to “adjudicative facts” (facts pertaining to “where, when and why”). Canada needed to know if the Tribunal intended to take judicial notice of a fact that was adjudicative in nature.

The final decision of the Tribunal demonstrated that it relied upon the additional materials to make the finding that Canada had breached its fiduciary duty. The evidentiary record put forward by the parties did not deal with the issue of referring matters to the Secretary of State for the Colonies. The Tribunal was apparently troubled by a perceived gap in the evidence. However, the Tribunal failed to advise the parties that it found the record lacking on this issue, and request that the parties address the evidentiary shortfall. The parties could also have been asked to make submissions on how the additional materials were relevant to these issues. The Court of Appeal held that, if the Tribunal had proceeded in such a manner, the parties would have been able to make meaningful submissions, and there would have been no impediment to taking judicial notice of the facts. In this proceeding, however, the Tribunal did not take such steps, and the additional materials were “dispositive” of issues such as who bore responsibility for failing to implement the McKenna-McBride Commission order. The Court summarized:

In summary, the Tribunal found a gap in the evidence with respect to two central issues. It failed to identify that evidentiary gap to the parties. Instead, the Tribunal referred to three academic texts and to the 1927 Report of the Joint Special Committee without particularizing either the facts it proposed to take notice of or the issues those facts related to. In doing so, the Tribunal failed to afford Canada a meaningful opportunity to present its case fully and fairly. Canada did not know the facts and information it was required to respond to, and it was denied a meaningful opportunity to adduce evidence and make responsive submissions.

The Court of Appeal therefore allowed the judicial review application, and set aside both the interlocutory and final decisions. The claim was returned to the Tribunal to be re-determined by a differently constituted panel. There was no order for costs.

https://www.canlii.org/en/ca/fca/doc/2017/2017fca175/2017fca175.html

https://www.canlii.org/en/ca/fca/doc/2017/2017fca175/2017fca175.pdf