Overview

In Madawaska Maliseet First Nation v Canada ("Madawaska Maliseet"),[1] the Specific Claims Tribunal ("the Tribunal") was faced with the novel question of whether the unilateral alienation of lands set aside for a First Nation by a pre-Confederation land survey breached the Crown's obligations under the Royal Proclamation of 1763.

In a lengthy and thoughtful decision, the Tribunal validated the Madawaska Maliseet First Nation's specific claim, finding that the Crown was "honour bound" to recognize the surveyed boundaries and holding that the impugned series of alienations were inconsistent with the text and policy surrounding the Royal Proclamation. The Tribunal also held, in the alternative, that the Crown's setting aside of the land established sui generis fiduciary obligations that were breached by the subsequent alienations.

Background

The Madawaska Maliseet First Nation ("the Nation") have lived in the St. John River Valley for thousands of years. This way of life was disturbed by the influx of some 10,000 to 15,000 British Loyalists following the Crown's 1784 creation of the colony of New Brunswick.

George Sproule, Surveyor General of New Brunswick, was ordered by Lieutenant Governor Carleton (the latter himself under instruction from the Governor General Dorchester) to complete a boundary survey to facilitate settlement of the new colony.[2]

The resulting 1787 document ("the Sproule Boundary Survey") included, inter alia, the identification of two tracts of land. The first, outlined in black ink and labelled "French Settlements," encompassed 16,000 acres. The second, outlined in red ink, enclosed between 3,500 to 3,700 acres. Of this second tract, Sproule wrote "The Indians require the tract of Land included within the red lines to be reserved for their use. Except Kelly's Lot."[3]

Between 1825 and 1860, the newly formed government of New Brunswick made three land grants that would ultimately be considered by the Tribunal in Madawaska Maliseet ("the Claimed Lands"):

  • In 1825, a Mr. Simon Hebert of the province of Quebec was granted a 250 acre parcel of land on the east side of the Madawaska River near its confluence with the St. John River (Parcel A)[4];
  • In 1829, Hebert received a license to occupy a second parcel of land, of approximately 19 acres (Parcel B)[5]; and
  • In 1860, John Hartt, a settler, received a grant of 100 acres adjacent to Hebert's Parcel A ("Parcel A2") on which had erected buildings and was carrying on a commercial operation.[6]

Each of these grants alienated lands that fell within the larger red-lined tract of land "reserved for [the Nation's] use" set out in the Sproule Boundary Survey.

The Claim

The Nation's claim, originally filed in 1998 but amended to reflect significant changes in the law, was twofold.

First, the Nation made the novel argument that the Sproule Boundary Survey was an act of reserve creation, and therefore that the pre-Confederation alienations of the Claimed Lands breached the Crown's obligation under the Royal Proclamation of 1763 to protect "Lands reserved to the said Indians" from private purchase.

Second, and in the alternative, the Nation argued that if the Sproule Boundary Survey did not create a reserve, then the Survey and subsequent Crown actions established a sui generisfiduciary duty with respect to the red-lined tract that was breached when the Claimed Lands were alienated absent their surrender or any consultation with or consent from the Nation.

The Tribunal's Decision:

The Tribunal accepted both of the Nation's arguments.

With respect to the first, the Tribunal was satisfied that the Sproule Boundary Survey identified "Lands reserved to the said Indians" within the meaning of the Royal Proclamation of 1763, and therefore concluded that the impugned alienations contravened the Crown's obligations thereunder:

Based on the political, historical and legal context of the time, the evidence taken together establishes that the New Brunswick government had reserved the red-line tract for the Madawaska Maliseet during the earliest period of settlement of the area in accordance with Crown policy and surveying practice of laying out reserves for Indigenous inhabitants in the colony at the same time that they defined tracts for the settlers to receive grants. These demarcations of lands for both the Madawaska Maliseet and the setters, done on Order of the Lieutenant Governor of New Brunswick, reserved lands for the Madawaska Maliseet within the meaning of the Royal Proclamation, being "Lands reserved to the said Indians".

This policy enabled settlers and the Madawaska Maliseet to live peacefully together side-by-side in the colony. It brought Madawaska Maliseet into the fold of the British's Crown's influence and protection, and achieved the ultimate Crown policy of establishing Loyalist settlers in the area without conflict. As such, the Crown was honour bound to recognize the red-lined tract for the benefit of the Madawaska Maliseet alongside the settlers' grants. Crown-approved land instruments alienating parts of this red-lined tract to the settlers post-1825 was done in direct contravention of the Royal Proclamation and therefore illegal or invalid within the meaning subsection 20(1) of the SCTA.[7] (Emphasis added)

With respect to the second argument, the Tribunal held that even if the Sproule Boundary Survey did not constitute an act of reserve creation as contemplated by the Royal Proclamation of 1763, the Crown's actions surrounding the Survey did establish a fiduciary obligation with respect to the red-lined tract of land. In particular, the Tribunal held that the requirements for a sui generis fiduciary duty as outlined in Manitoba Métis Federation Inc were met, as the Sproule Boundary Survey created a cognizable Indian interest in the red-lined tract over which the Crown exercised discretionary control:

I therefore agree with the Claimant's submission that the Madawaska Maliseet had a cognizable interest in the red-lined tract of land as result of their prior use and occupation of that land, followed by the identification and demarcation of that land by Surveyor General Sproule in 1787. I also agree that the Crown assumed discretionary control over Parcels A and B and the Remaining Lands in the red-lined area when disposing of them without Madawaska Maliseet knowledge or consent.[8]

The Tribunal, noting that the evidence established that the Crown was in the "process of reserve creation, if not the conclusion of it," at the time of the Sproule Boundary Survey, therefore held that the content of the sui generis fiduciary duty included those obligations outlined in Wewaykum Indian Band v. Canada,[9] namely: "obligations of loyalty, good faith, full disclosure appropriate to the matter at hand and acting in what it reasonably and with diligence regards as the best interest of the beneficiary."[10]

The Tribunal went on to hold that all three impugned alienations fell below the Wewaykum standard, and therefore, that the Crown had breached its fiduciary obligations, grounding the claim under section 14(1)(c) of the Specific Claims Tribunal Act.[11]

[1] Madawaska Maliseet First Nation v Canada, 2017 SCTC 5 ["Madawaska Maliseet"].

[2] Ibid at paras 42-45.

[3] Ibid at paras 64, 65.

[4] ibid at paras 124-5.

[5] Ibid at paras 130-135.

[6] Ibid at para 147.

[7] Ibid at paras 354-55.

[8] Madawaska Maliseet, supra note 1 at para 413.

[9] Wewaykum Indian Band v. Canada, [2002] 4 SCR 245, 2002 SCC 79

[10] Madawaska Maliseet, supra note 1 at para 415.

[11] Specific Claims Tribunal Act, SC 2008, c 22.