Kitselas First Nation Specific Claim Summary

History of the Claim: 
The Kitselas Nation is one of seven Tsimshian groups in Northwest British Columbia. They have occupied the Skeena Valley since time immemorial. The Kitselas Territory is comprised of nine reservations. 
In 1891, the Joint Indian Reserve Commission set aside a reserve for the Kitselas First Nation. The claim arises out of the non-inclusion of a 10.5 acre parcel of land in this reserve—the excluded portion included an ancient village site (Gitaus). Instead of being included in the reserve, the 10.5 acres were used for a Hudson’s Bay Company storehouse. 
Gitaus Village Site: 
There is extensive archaeological research that suggests that people have occupied the Kitselas Canyon area for at least 5000 years. Gitaus (“the people of the sand bar”) is a village site built beside a sand bar overlooking the Skeena River, and it is one of the earliest village sites in the area. 
The Claim:
The Kitselas First Nation filed a claim with the Minister in 2000, and filed a Declaration of Claim with the Specific Claims Tribunal in 2011. The Tribunal held that Canada’s failure to include the 10.5 acre parcel of land was a breach of its fiduciary duty to the Kitselas First Nation. In making this decision, the Tribunal relied on the Supreme Court’s decision in Wewaykum Indian v. Canada. In Wewaykum Indian Band v. Canada, the Court held that the Crown owes a fiduciary duty to a First Nation where a “cognizable Indian interest” is identified and where the Crown has control in relation to this interest. In other words, the Court stated that since there was a clear First Nations interest in the area, and since the Crown had control over that area, the Crown had an obligation to act in the First Nations’ best interest. The Tribunal in Kitselas First Nation found that a fiduciary duty existed “by virtue of the fact that Kitselas’ use of the Gitaus village site constituted a cognizable interest and that Canada had assumed…authority over the reserve creation process”. Therefore, the Tribunal concluded that Canada breached this fiduciary duty when they failed to disclose the exclusion of the 10.5 acres, thereby not acting in Kitselas’ best interest. 
Canada Challenging the Tribunal’s Decision
Canada is now challenging the Tribunal’s decision at the Federal Court of Appeal. Canada asserts that there was in fact no cognizable Indian interest and discretionary control by Canada over that interest—without this, there would have been no fiduciary undertaking and subsequent breach of fiduciary duty on the part of Canada. Canada’s challenge of the Kitselas decision raises important issues, which may have significant impact on the interests of all First Nations (not just the Kitselas First Nation). The most important issue here is the fact that the Court will debate how to determine whether a fiduciary duty exists, and how to establish whether it was breached. If Canada is successful, the number of claims where a fiduciary duty can be established may be affected, and if fiduciary duty can be established, it will be even more difficult to determine that Canada had actually breached the duty. When a breach of fiduciary duty is found, a court can order Canada to put the First Nation back in the position they would have been had the duty not been breached—this compensation can be very substantial as these claims are often over a century old. However, the level of compensation would be reduced significantly in many claims if the establishment of fiduciary duty and breach of fiduciary duty were to be limited. 
Ultimately, the Kitselas specific claim is an important claim to watch, particularly as Canada’s challenge of the Kitselas decision marks the first time a court has reviewed the decision of the Tribunal. In addition to potentially changing how fiduciary duty is established, Kitselas raises the issue of how much power the Tribunal will have. It can be argued that, by requesting judicial review of important Tribunal decisions, Canada is undermining the binding decision-making power of the Tribunal, and as a result, causing costly delays and ultimately putting the Tribunal itself at risk. Therefore, it is in the best interest of Canada’s First Nations to watch this issue closely in the future.