Blueberry River First Nations wins important victory in historical claim

FOR IMMEDIATE RELEASE, Treaty 8 Territory

Blueberry River First Nations wins important victory in historical claim: Specific Claims Tribunal finds Federal Government responsible for loss of subsurface rights in Reserves

September 7, 2018 – The Specific Claims Tribunal has ruled that the result of the Federal Government breaching its fiduciary duty to the former Fort St. John Beaver Band (the “Band”), the group of Dane-zaa people that was the predecessor to Blueberry River First Nations and Doig River First Nation, was that the Band was denied the subsurface rights in replacement reserves set aside for its benefit.

This decision concludes the second phase of a claim aimed at determining the compensation owed for an historical wrong: Canada’s failure to investigate and inform the Band of the nature of the interest in replacement lands purchased for the Band following the surrender and sale of the Montney Reserve. The Montney Reserve, known in the Dane-zaa language as Suu Na chii K’chige or “where happiness dwells”, was the original gathering place of the Dane-zaa people. In the first phase of the claim, the Tribunal found that Canada had breached its fiduciary duty to the Band when Canada accepted an offer of replacement lands from British Columbia in 1947, after the surrender of both the surface and subsurface rights in the Montney Reserve, without noticing that the Province had reserved for itself the subsurface rights in the replacement lands through a legal mechanism known as “Form 11”. The Tribunal held that Canada’s failure to notice the reservation of subsurface rights left the Band vulnerable to disruption by oil and gas producers authorized by British Columbia coming onto the replacement reserves.

In the second phase of the claim, the Tribunal had to determine what would have happened had Canada not breached its duty to the Band. The Tribunal agreed with the arguments put forward by the claimant Dane-zaa Nations and held that they lost the opportunity to acquire the subsurface rights in the replacement reserve lands.

“This decision is a significant victory for the Dane-zaa. It is an important step in righting the historical injustice that resulted from the surrender and sale of the Montney Reserve, known to the Dane-zaa people as Suu Na chii K’chige or ‘where happiness dwells’, and the acquisition of the replacement reserves by the Federal Government,” said Blueberry River First Nations’ Chief Marvin Yahey.

Chief Yahey said: “We are pleased to see the Tribunal recognizing the loss that the Dane-zaa people suffered when we were convinced to sell the full rights in the Montney Reserve and only obtained surface rights in the replacement reserves. It is critical that the Federal Government be held to account when it does not act in our best interests and the Dane-zaa people suffer a loss as a result.”

Blueberry River First Nations

In rejecting Canada’s argument that the Band suffered no loss and would have accepted the replacement lands without subsurface rights even if Canada had properly informed the Band, the Tribunal said: “If informed by November 26, 1947, [the Band] could not be sure its traditional life would not face disruption; it would have known that the subsurface had no revenue generating potential for the Band, but might someday to others; and, it would have known that the disruptions spelled out in Form 11 were entirely possible when the Province granted licences to oil and gas producers.”

The Tribunal said that given the central importance of the Montney Reserve: “If appropriate replacement reserves could not be found, then retaining Montney was a good option for the [Band], especially given that disposing of the Reserve was not the Band’s idea or initiative”

“The Tribunal’s recognition of the value that the Dane-zaa people place in the land and the way we use our land, particularly the importance of the Montney Reserve and our current reserves, is an important step in healing past wrongs”, said Chief Yahey.

The Tribunal concluded that had Canada not breached its duty and informed itself and the Band of the reservation of subsurface rights, Canada would likely have persuaded the Province to include the subsurface rights in the sale of the replacement lands. This is because by 1947 Canada and British Columbia were both heavily invested in the plan to open up the Montney Reserve lands to veterans returning from World War II.

The next phase of the claim will include quantifying the damages that Canada owes the Dane-zaa Nations for the loss of the subsurface rights in the replacement reserves.

Blueberry River First Nations and Doig River First Nation are descendants of the original Fort St. John Beaver Band – an adherent of Treaty No. 8. In 1916, the Crown set aside the Montney Reserve for the Band. In 1945, the Band was convinced to surrender the Montney Reserve to Canada for returning war veterans on the promise that replacement reserves would be obtained.

In 1977, the Fort St. John Beaver Band was divided into the Blueberry River First Nations and the Doig River First Nation. In the same year, the Dane-zaa Nations discovered that the Montney Reserve’s subsurface rights had been disposed of, and that the replacement reserves did not include subsurface rights. The Dane-zaa Nations commenced an action against the Crown concerning the legitimacy of the surrender of the Montney Reserve and the related loss of subsurface rights, which resulted in a 1995 decision of the Supreme Court of Canada confirming that the Federal Crown had breached its fiduciary duty in relation to its handling of the Montney Reserve, and ultimately in a settlement: Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344. The ongoing claim before the Specific Claims Tribunal concerns the loss of the subsurface rights in the replacement reserves.

For further information please contact Chief Marvin Yahey:

office: 250-630-2584; direct line: 250-630-2805; e-mail: myahey@blueberryfn.ca