INAC behind decision to seek judicial review of Huu-ay-aht logging compensation

By Shari Narine, January 18, 2017
Ottawa — 

Actions are speaking louder than words and they contradict the passionate reconciliation talk that Justin Trudeau delivered both before and after the Liberals formed the new federal government.

The government has filed papers seeking a judicial review of the Huu-ay-aht logging decision rendered by the Specific Claims Tribunal, the first of its decisions to deal with how historic claims are to be compensated in the present day, said Kate Blomfield, counsel for Huu-ay-aht First Nations.

The tribunal ordered Canada to pay $13.8 million in compensation to the Huu-ay-aht First Nations for timber logging that took place between 1948 and 1969 on Numukamis Indian Reserve.

Huu-ay-aht First Nations Chief Councillor Robert J. Dennis Sr. has called the decision to appeal “outrageous.”

The judicial review papers were filed Jan. 11 by the Attorney General – a position held by former Assembly of First Nations—British Columbia regional chief Jody Wilson-Raybould. But Ottawa press secretary Valerie Gervais says the legal action is actually being taken by Indigenous and Northern Affairs Canada.

“They’re the ones who would be leading this initiative,” said Gervais.

INAC Minister Carolyn Bennett has been as keen as Trudeau when it comes to talking about reconciliation.

Gord Johns, NDP MP Courtenay—Alberni, is accusing the Liberals of using the Harper government’s tactic of delay and appeal.

“I’m disappointed. I think … people are becoming frustrated with the Prime Minister’s heartfelt statements about the importance of his relationship with Indigenous peoples and at the same time they’re allowing the government lawyers to fight First Nations in court. This is totally contradicting the government’s promise towards reconciliation,” said Johns.

Huu-ay-aht Chief Councillor Dennis said “Part of our reconciliation to this long-term dispute was to seek fair compensation. We trusted Canada’s judicial processes to achieve this, but we are extremely disappointed to hear this will be further prolonged. It is unfair to our Nation,” said Dennis.

In 2008, the federal government established the Specific Claims Tribunal to allow First Nations to resolve monetary claims made against the government instead of having to take legal action in court.

Although decisions rendered by the tribunal cannot be appealed, they are open to judicial review under the Federal Courts Act.

The earliest the matter is likely to be heard by the Federal Court of Appeal is fall, said  Blomfield. While she joins her clients in their disappointment of the government’s decision to seek a judicial review, she is not surprised.

“It is laying out some basic principles,” she said.

With 30 days to file an appeal on the initial tribunal decision, this keeps the government’s options open while allowing them to further consider whether they want to move forward on legal action, adds Blomfield.

In its 10-page notice of application, INAC, through the Attorney General, challenges the way the tribunal arrived at the compensation figure, which assesses the difference in what the Huu-ay-aht actually received in timber revenue from the government and what the First Nations should have received.

“Canada admitted that it has breached a fiduciary obligation …but the parties did not agree on the operative date of that breach, whether there was a resulting loss, or the amount of the loss,” says the notice.

The Huu-ay-aht had asked for $14.5 million, while the government had suggested compensation of about $2.9 million.

The Federal Court of Appeal can deliver one of three findings: uphold the tribunal’s decision; find an error was made and return the matter to the tribunal with guidance; or substitute its own decision.

The court of appeal’s decision can be challenged at the Supreme Court of Canada, although the challenge is not automatic, as permission must be received for SCC to hear the case.

“The Huu-ay-aht first expressed their concern to Canada regarding this issue in 1948 and they’ve really been trying to seek justice through whatever avenues they can since that time, so it’s very frustrating that the fight is going to continue,” said Blomfield. “It takes a lot of a time, a lot of money.”

Johns says it doesn’t matter whether it’s Bennett or Wilson-Raybould, who is leading the court action. “We’re calling on those ministers to take some leadership.

“But ultimately this falls on the back of the Prime Minister, who can direct the Cabinet ministers to move forward and honour the decision that was made to the Huu-ay-ahtso they can move forward… in the true spirit of reconciliation,” said Johns.

“I don’t think the government should be worried about setting precedence about doing the right thing. Doing the right thing has been long overdue and it’s something everybody has been waiting for and it’s something this government promised to do,” he said.

The Nuu-chah-nulth Tribal Council and the Union of British Columbia Indian Chiefs have added their voices, calling for Canada to act in reconciliation.

NTC calls on Minister Wilson-Raybould to follow the direction of the Prime Minister in his mandate letter to "review [the] litigation strategy. This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.‎"

“We have yet to see the renewed, nation-to-nation relationship based on recognition of rights, respect, co-operation, and partnershipthat Prime Minister Trudeau promised,” reads a press statement from the tribal council

Blomfield anticipates the government will also ask for a judicial review of the tribunal’s decision on the Beardy’s and Okemasis Band, which came down on Dec. 23. The tribunal ordered Canada to compensate the Saskatchewan First Nation $4.5 million plus interest for $5 per member payments withheld between 1885 and 1888 of the members of the band the government had deemed disloyal to Canada in the North-West Rebellion.