Siska FN awarded $4.7 million for railway infringement

Ruling may set precedent for compensationg First Nations for loss of fishing

An easement created in the 1880s for the CPR resulted in loss of fishing opportunities for Siska First Nation, tribunal rules. | BIV Archives

The federal government has been ordered to pay the Siska First Nation $4.7 million in restitution for the alienation of reserve lands and lost fishing opportunities in a claim stemming from the creation of the CPR railroad.

The award was granted by Canada’s Specific Claims Tribunal, which was set up in 2008 to deal with the hundreds of claims across Canada that First Nations have made. These claims were previously dealt with by the courts.

Literally hundreds of specific claims have been tried in Canada. What makes the Siska decision unique, and possibly precedent-setting, is that for the first time a tribunal has awarded losses for lost fishing opportunities.

“The unique thing about this case is it’s the first case, I believe, in Canada where a judge found fishing losses, where Canada is liable for fishing losses,” said Callison and Hanna partner Darwin Hanna, who represented Siska at the tribunal hearing.

A comprehensive claim typically deals with bigger questions of aboriginal rights and title on traditional territories where title may not have been ceded or is otherwise uncertain.

Specific claims typically deal with treaty or reserve lands that have been alienated or infringed without proper compensation or consultation. They often deal with historical infringements dating back decades, or even a century or more.

Treaty lands and Indian reserves were created with the understanding that those lands were for the exclusive use the First Nation.

But portions of those lands were often taken back – sometimes when the ink was barely dry on treaties or Indian Act documents  – for the creation of easements for public projects like railways, roads and harbours.

The Siska’s claim related to the loss of 90 acres of reserve land, loss of timber and access to fishing.

In 1878, the Canadian government identified reserve lands for the Siska. The reserve parcels were located on the Fraser River south of Lytton to give the Siska continued access to their traditional fishing areas.

“The Crown set aside the reserves in 1878 for Siska, in partial fulfilment of duties relating to reserve creation, with awareness of the significance of the river access that the reserves provided,” Justice Harry Slade writes in his decision.

But just two years after the reserve lands were identified, the CPR was granted a right-of-way that cut through several reserve parcels in order to build a railway. The easement amounted to about 90 acres of reserve land.

“The national interest required the development of the CPR, but any necessary takings ought to have occurred lawfully,” Slade writes. “Canada lost sight of the claimant’s best interests from the earliest days of construction and then, decades later, imposed illegal takings that then went unaddressed into the 21st century.”

Given how many thousands of kilometers of railway tracks there are across Canada, and given than they often cut through reserve or treaty lands, the Siska claim is not likely to be the last.

And now there may be a precedent for compensating First Nations not just for the loss of land, but the loss of fishing opportunities as well.

In the Siska’s cases, the easement created for the railroad ended up preventing the Siska from accessing certain fishing stations they had traditionally used. Once the CPR had its easement, the Siska were told they were trespassing every time they tried to get to traditional fishing stations.

“The pecuniary loss flowing from the impaired access to the claimant’s fishing stations was found to be compensable from 1882 to present,” Slade writes.

Typically, monetary compensation is based on appraisals to determine what the land that was alienated is worth.

“You have a land appraisal, but this one involved both a land appraisal but also expert evidence regarding fishing losses,” Hanna said.

Of the $4.7 million awarded to the Siska, the value assigned to lost fishing opportunities represents the lion’s share: $2.8 million.

Hanna thinks the Siska ruling could set a precedent for other First Nations that may have specific claims in which they may have lost opportunities to fish.

“Other First Nations, we can presume, will make claims that Canada’s breach of fiduciary duty resulted in loss of economic fisheries when it approved railways and those railways interfered with the fishery,” Hanna said.

nbennett@biv.com

@nbennett_biv