GEOMATICS AND THE LAW The Interaction of Law and Geography in the Williams Lake Indian Band Specific Claim Roger Townshend and Bert Groenenberg 1 Facts of the Claim The T exelcemc (Williams Lake Indian Band) is a Secwepemc (Shuswap) community. Its traditional territory is in what is known as the Cariboo Regional District of the central interior of British Columbia. The general geo graphic area is shown in Figure 1. Before the colony of British Columbia was established in 1858, the T exelcemc had established a village located in what is now the City of Williams Lake. 2 The village location is shown in Figure 2 (top panel). The claim was to the Village Lands, which included the lands identified as District Lots 71 and 72. These lots are shown in Figure 2 (middle panel), and comprise 1960 acres 3 (793 hectares). The claim area is somewhat larger than these lots, and is referred to as including Glendale-Comer, lots 71 72, Williams Creek, Scout Island, the Stampede Grounds, the downtown core, and a plateau north of the downtown core. 4 However, no precise legal descrip tion of the Village Lands exists. 5 1 Roger Townshend is a founding partner of Olthuis, Kleer, Townshend LLP, a law firm that exclusively practices Aboriginal law for First Nations. Bert Groenenberg has a geography degree, lives in Williams Lake, and works for the Carrier Chilcotin Tribal Council (of which the T exelcemc is not a part). Maps produced with the co-operation of Paragon Resource Mapping. 2 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 4 and 113 114. 3 Canada v Williams Lake Indian Band, 2016 FCA 63, paras 8 9. 4 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 4 and 113 114. 5 Canada v Williams Lake Indian Band, 2016 FCA 63, para 8. 6 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 33 39, 51 54, and 154. 7 Ibid, paras 125 129. 8 Ibid, paras 297 313. 9 Off the map area are the 2.7 hectare Tillion 4 Reserve at the mouth of Williams Lake River and the 23.4 hectare Chimney Creek Reserve #5 at the mouth of Chimney Creek. Both flow into the Fraser River with Chimney Creek mouth being about 10 kilometres south of Tillion 4. 10 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 153 160, 201 210 and 215 223. 11 Ibid, para 245. The colonial law at the time was that Aboriginal villages and land surrounding them was not available for settlers, and that settlers encroaching on them were to be removed. 6 Despite this, settlers displaced the T exelcemc from their village lands around 1861, and the local colonial officials, although knowing this, did not attempt to stop or reverse the displacement. 7 Naturally, the T exelcemc objected, but they remained essentially landless for twenty years. Finally, in 1881, a Crown official met with the First Nation, explained that the Crown wished to provide land to them, but that land already occupied by settlers was not open for discussion. After some con sultations, 14 parcels of land, totaling about 4100 acres (1660 hectares), wre set aside for the T exelcemc. 8 The land was scattered through the territo ry, but most of it was 10 kilometres east at the opposite end of the lake to the original T exelcemc vil lage. The lands received are shown in Figure 2 (bottom panel, outlined in red). 9 Decision of Specific Claims Tribunal In 2014, the Specific Claims Tribunal decided that it was a breach of fiduciary duty, and of the honour of the Crown, for the pre-confederation colony not to have protected the T exelcemc village lands from immigrant settlement. 10 Canada became responsible for this breach. 11 It was a further breach of fidu ciary duty for Figure 1: Location of Williams Lake. Vol. 70, No. 4, 2016 dx.doi.org/10.5623/cig2016-408 GEOMATICA 319
Figure 2: Loss of lands and relocation. 320 GEOMATICA Vol. 70, No. 4, 2016
Canada to prefer the interests of settlers when it came to cre ating a reserve in 1881, and not to challenge the illegal occupation of land by settlers. 12 The breaches were not cured by the allotment of reserve lands in 1881 because it was the original Village Lands to which the T exelcemc had a tangible, practical and cultural connection. Such a breach could not be remedied by providing alternate land. 13 Decision of the Court on Judicial Review The Federal Court of Appeal has jurisdiction to hear a judicial review of a decision of the Specific Claims Tribunal, 14 and this course was taken. The Court quashed the decision of the Tribunal, and substituted its own. 15 The Court expressed some scep ti cism about each step of the Tribunal s analysis whether the colony had breached its duty to the T exelcemc, 16 and whether Canada was responsible for such breaches by the colony. 17 However, it found it unnecessary to decide this, since it was of the view that the provision of lands in 1881 cured any possible breaches. The Court came to this conclusion because it thought that it was reasonable to balance the interests of the First Nation with the interests of settlers, 18 and that it would have caused delays if Canada had challenged the legality of the settlers occupation of lands. 19 The Court also relied upon the First Nation having selected the land they ultimately received, noting that not all the land that was part of the original T exelcemc village area had been occupied by settlers, and inferred that if the First Nation had wanted such unoc cu pied land, it could have selected it. 20 Comparison of the Lands Lost and the Lands Received We suggest that, in ruling that the lands received in 1881 cured any possible breaches of duty by the Crown, the Federal Court of Appeal overlooked important details. In fairness, these were not details that are easily apparent from the reasons for decision of the Tribunal, but many of these details would be apparent even to a casual observer of the locations in question. We will say more about this below, and suggest that Aboriginal claims of this nature ought to require a detailed and contextual approach, including firsthand obser va tion of the land in question. As noted above, the Tribunal rea soned that it was the original Village Lands to which the T exelcemc had a tangible, practical and cultural connection, and that the loss of such lands could not be remedied by providing alternate land, but that alternate lands received would factor into the compensation to be awarded. We suggest that this has considerable force. There are deep and abiding ties to specific parcels of land in any circumstance. This is a key reason why law in general treats real property and other property in com pletely different ways. Added to this, in the Aboriginal context, there is a deep and spiritual attachment to land that is hard to comprehend for non- Aboriginal people. As the Ontario Superior Court of Justice stated: It is critical to consider the nature of the potential loss from an Aboriginal perspective. From that perspective, the relationship that Aboriginal peoples have with the land cannot be understated. The land is the very essence of their being. It is their very heart and soul. No amount of money can compensate for its loss. Aboriginal identity, spirituality, laws, traditions, culture, and rights are connected to and arise from the land. This is a perspective that is foreign to and often difficult to understand from a non- Aboriginal viewpoint. 21 In the specific case of the T exelcemc, there are additional fac tors: 1) there were burial sites at the original village location, to which the T exelcemc were connected; 22 2) salmon were more available in the lower Williams Lake River and the Fraser River but not so readily available on the present Reserve; 23 3) mule deer can no longer be hunted in the populated Williams Lake valley. Community members have to travel some kilometres north to hunt mule deer. 24 As an illustration of the connection of the T exelcemc to the Village Lands, the first settler, Thomas W. Davidson, had asked Chief William if 12 Ibid., paras 320 328 and 338 339. 13 Ibid, para 342. 14 Federal Courts Act, R.S.C., 1985, c. F-7, s. 28(1)(r). 15 The Supreme Court of Canada granted leave to appeal on 13 October, 2016. 16 Canada v Williams Lake Indian Band, 2016 FCA 63, paras 47 and 70. 17 Ibid, para 75. 18 Ibid, paras 104 5. 19 Ibid, para 99. 20 Ibid, para 100. 21 Platinex v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 at para. 80 (ON SC). 22 Williams Lake Indian Band v Canada, 2014 SCTC 3, para 75. At least some of these gravesites were indeed set aside as reserve lands (para. 311). 23 Chris Wycotte, personal communication to B. Groenenberg, January 20, 2017. 24 Ibid. Vol. 70, No. 4, 2016 GEOMATICA 321
Figure 3: City of Williams Lake from above (photo: E. Groenenberg, 21/05/2016). Figure 4: Night view overlooking City of Williams Lake from Pioneer Complex (photo: B. Groenenberg, 28/11/2016). he could build a cabin and little garden next to the chief s home. The chief later found that Davidson had pre-empted all the land the Indians lived on. Davidson offered Chief William $20 but he refused to part with his father s land and rejected the money. 25 So why, one might ask, did the T exelcemc accept the lands they received in 1881? They had been landless for twenty years, and they had been told their old village area (or at least a large portion of it) was just not open for dis cussion, 26 so they took what they could get, and were relieved to have a place they could rely on as being theirs. During the period of being landless, in the winter of 1863, a severe smallpox epidemic killed many of the commu ni ty. 27 The remaining people were pushed off their lands. 28 When they were driven out of their original village, they had nothing to eat and their horses became sick and died for lack of land to put up hay. So some stayed at the nearby St. Joseph s Catholic Mission, which provided some land for them to live on. 29 A number of appeals to the colonial government to give us some of our own land back had gone unheed ed. 30 So after almost twenty years of being without land, it would have been a relief to the chief to have any land at all secured for the First Nation, so he nat u rally would have been thankful. 25 Williams Lake Indian Band v Canada, 2014 SCTC 3, para 76. 26 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 310 and 331. 27 Ibid, paras. 6, 73, 104 106. 28 Ibid, paras 75 76, 82 and 108. 29 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 81 82. 30 Williams Lake Indian Band v Canada, 2014 SCTC 3, paras 75 76 and 82. 322 GEOMATICA Vol. 70, No. 4 2016
Figure 5: View of Reserve from highway (photo: B. Groenenberg, 21/01/2017). Figure 6: View of built-up portion of Reserve (photo: B. Groenenberg, 21/01/2017). When looking at the market value of the lands, there is really no com par i son. Although there was a greater quantum of land received than land lost, the land lost is far more valuable. It is obvious to the most casual observer that the old Village Lands, which include what is now downtown Williams Lake, are much more valuable than the present Reserve surrounded by ranch land. This can be seen by comparing, for example, the photos of the present built up state of the original Village Lands in Figures 3 and 4 with the photos of the present Reserve land in Figures 5 and 6. We also observe that most of the original Village Lands could be cultivated successfully, which is why the settlers wanted them, while only 5% of the lands of the present Reserve are con sid ered arable. 31 One might ask whether it should be the 1881 land values that should be compared. This is not how the law treats such issues. Where land is lost through a breach of fiduciary duty, as was claimed, any increases in the value of land are at the risk of the breaching fiduciary, who becomes liable for the full present value of the land. 32 Indeed, the Specific Claims Tribunal Act, under which the claim was brought, specifically provides that in cases where land was not taken legally (as was the case here), the appropriate compensation is the current, unimproved market value of the lands. 33 The Nature of Judicial Review Generally, judicial review is a means for Courts to oversee the decisions of administrative decision-makers. 31 L.A. Leskiw, L. Farstad and T.M. Lord, A Soil Resource and Land Use Survey of the Williams Lake Indian Reserve, 1973, Report No. 278, (Vancouver: Agriculture Canada, 1973) p. 7. 32 See, for example, Huu-ay-aht First Nations v Canada, 2016 SCTC 14 at paras 221 232. 33 Specific Claims Tribunal Act, S.C. 2008, c 22, s 20(1)(g). Vol. 70, No. 4, 2016 GEOMATICA 323
In such a case, the decision-making power was given to a body other than a Court, and so administrative law provides for considerable deference to the expertise of such bodies. If a Court finds that an administrative decisionmaker was egregiously enough in error that a decision must be quashed, typically the matter is remitted to the origi nal decision-maker to reconsider the matter upon the correct legal principles. The Specific Claims Tribunal is considered such an administrative deci sion maker, although it does not fit easily into the usual paradigm; it considers the same kind of matters that Courts frequently decide, and it is staffed with judges. 34 Nonetheless, one of the points of having the Tribunal is for its members to develop expertise in the unique context of Aboriginal claims. This factor does set the Tribunal apart from ordinary Courts. As noted, the Federal Court of Appeal quashed the decision of the Tribunal, since it was of the view that the provision of lands in 1881 cured any possible breaches, and that the Tribunal had made an error in principle in deciding that a breach of duty in relation to the lands claimed could not be remedied by setting aside alternate land. Typically, one might expect a Court in this circumstance to direct that it was possible that the provision of alternate land could remedy a breach, and remit the matter to the Tribunal to consider whether or not in this factual situation making these particular alternate lands available did cure the breach. However, instead, the Court substituted its own decision that the provision of lands in 1881 had cured any possible breaches. This is a unusual step to take on a judicial review, and done only in exceptional circumstances. The Court thought the circumstances were exceptional enough here because it was of the view that the only possible reasonable conclusion was that any breach had been cured by providing alternate lands. 35 Implications As we have tried to point out above, it is our view that the Court s conclusion is not the only possible reasonable conclusion. If this is so, it would have called for a different ruling for example, to remit the matter to the Tribunal for further consideration. The reasons why the lands received are not comparable to the lands lost depend on detailed geographic contextual factors. If these factors were known to the Tribunal, they are not evident in the Tribunal s reasons. Therefore, they were unknown to the Court of Appeal, which made a decision believing it knew everything relevant. An irony is that some of these con textual factors would have been readily apparent to a casual observer. Although the Tribunal in this case had actually viewed the Village Lands, it did not mention this in its reasons for decision. 36 So, when the matter reached the Federal Court of Appeal, it had become abstract enough that the Court viewed matters as plain and inescapable, which might not have appeared so clear if more details were known, or even if the Court had viewed the land casually. Suggestions we would make to counsel conducting such claims are to make sure that sufficient contextual details are before the original Court or Tribunal, preferably enhanced by site visits, and to ask the original Court or Tribunal to refer to this in its reasons. If the original Court or Tribunal does this, it will signal a reviewing or appellate Court that such contextual details are present and are important. This might make a reviewing or appellate Court less apt to deal with the matter abstractly, believing that this is the only reasonable way to look at it. q 34 Ibid, s. 6(2). 35 Canada v Williams Lake Indian Band, 2016 FCA 63, para 115. 36 Applicant s memorandum of argument on leave to appeal to Supreme Court of Canada, para 7, available at http://www.scccsc.ca/webdocuments-documentsweb/36983/mm010_applicant_williams-lake-indian-band_application.pdf. 324 GEOMATICA Vol. 70, No. 4, 2016