Setback for Burrard and Musqueam in Kitsilano Reserve Claim

The Federal Court Trial Division recently issued its reasons for judgment on phase 1 of a 3-phase trial in which three bands, the Squamish First Nation, the Burrard First Nation, and the Musqueam First Nation, claimed entitlement to what was known the Kitsilano Reserve, in the False Creek area of Vancouver (Squamish Indian Band v. Canada, [2000] F.C.J. No. 1568).

The Squamish First Nation settled its claim before trial, for an amount in excess of $90 Million. For practical purposes then, this decision affects only the Burrard First Nation and the Musqueam First Nation.

The reserve was first created in 1869, when colonial officials set aside thirty-seven acres for the use of Indians. In 1877 the Joint Reserve Commission re-allocated the reserve, enlarging it to eighty acres, and setting it aside as part of twenty-eight reserves for the "Skwawmish Tribe". The Burrard were at that time considered part of the Squamish People.

In 1923 the Squamish People petitioned for the amalgamation of the Squamish Bands and accounts. The Burrard who lived mainly on I.R. No. 3 indicated they wanted to be excluded from the amalgamation. After 1923, the Burrard were assigned to I.R. Nos. 3 and No. 4, separate from the Squamish. In 1946, the Province conveyed title to the reserve to the federal government. Shortly thereafter, the Squamish surrendered the reserve for sale. By 1965, the entire reserve had been sold.

In her decision, Simpson J. concluded that the reserve as allotted by the Joint Reserve Commission, was not finally established until 1889. When the reserve was set aside by the Joint Reserve Commission in 1877, the British Columbia Land Act required gazetting of notices of reserves before reserves were created in British Columbia. This requirement was removed from the Land Act in 1889, when publication of a notice became optional under the statute. It was only in 1889, when the notice requirement was lifted, that the Joint Reserve Commission allotment took effect and the lands finally became Indian reserve lands.

Simpson J. also concluded that there was no fiduciary duty that automatically arose under or was automatically superimposed on the Indian Act in the period preceding the surrender of the reserve. A fiduciary duty on the part of the Crown, she concluded, can be found only in special circumstances.

Simpson J. concluded that the way in which the reserve was administered by the Department of Indian Affairs was within the discretion of the Department under the Indian Act. The Joint Reserve Commission's allocation of 28 separate reserves for the use and benefit of a language group it called the Squamish tribe, did not require the Department to treat the reserves as one, or to treat all Squamish people as one band. The Indian Act gave the Department discretion in managing individual reserves and related bands, and this discretion included letting the Squamish decide who was resident in and who had an interest in a particular reserve.

Simpson J. also found that in 1923, at the time of amalgamation, the Burrard had an interest only in I.R. Nos. 3 and No. 4, and the Squamish had an interest only in reserves other than I.R. Nos. 3 and No. 4. On the basis of these facts, and since the Burrard had retained I.R. Nos. 3 & 4, there was no action on the part of the Department of Indian Affairs during the amalgamation process which could be seen as taking away an interest the Burrard had in a reserve.

In addition, Simpson J. concluded that the Burrard Band understood that they would lose their rights to reside on other Squamish reserves and had made an informed decision to be exempted from the amalgamation. Further, she found that no surrender was required in a transfer of a reserve interest from one Indian Band to another. Thus the surrender provisions of the Indian Act did not need to be complied with. Finally, Simpson J. found that the results of the amalgamation were not in any way unfair.

In the result, Simpson J. held that the reserve had been allotted to the Squamish Band in 1877, and had been retained by the Squamish Band in 1923, when the amalgamation was effected. She dismissed the claims of both the Musqueam First Nation and the Burrard First Nation.

As these reasons were for phase 1 of a 3-phase trial, the parties have not yet had to decide whether to appeal.

RELATED DECISION:

Squamish, Burrard and Musqueam Victory in Kitsilano Point Railway Lands Dispute

(Squamish Indian Band v. Canadian Pacific Ltd., [2000] B.C.J. No. 1208)

The Squamish, Burrard and Musqueam First Nations recently won a major victory in the B.C. Supreme Court. At issue was who holds the title to two parcels of land on Kitsilano Point in central Vancouver.

The two parcels were part of the former Kitsilano Indian Reserve. They were taken for the purposes of the Canadian Pacific Railway in the 1880s. The only rail service on the land today, however, is to the Molson Brewery, and this service is planned to end soon.

B.C. Supreme Court Justice Saunders decided that the railway had a right to the land only for as long as the railway was still connected to regional rail system and used for railway purposes. After that, the land would return to the federal government, to be held for the benefit of the First Nations.

Key to the successful outcome was Justice Saunders' decision to apply the Railway Act, and not the Act which created the Canadian Pacific Railway, to the land transactions in issue. The Act creating the railway company spoke of "absolute" property for the company, and the extinguishment of Aboriginal title to railway lands. The Railway Act, in contrast, was more consistent with the Indian Act's restrictions of surrender and alienation of reserve lands. Under the Railway Act, Canadian Pacific could not sell the land, and only ever had an interest in the land for as long as it was part of a railway route and used for railway purposes.

Justice Saunders also concluded that the federal government could not have granted the railway absolute title to the land when the government gave the land to the company, as the federal government did not have that title to give before 1947. In the case of the Kitsilano Reserve specifically, British Columbia held the title to the land until 1947.

The case should be read together with the reasons for judgment in Squamish Indian Band v. Canada,[2000] F.C.J. No. 1568) about which Band was entitled to the Kitsilano Reserve to begin with.

The case is now under appeal.