Canada seeks review of $13.8-million award to Island First Nation

The federal government is asking for a review of a decision to award $13.9 million in compensation to a Vancouver Island First Nation over a historical logging dispute.

The Huu-ay-aht First Nation, based in Anacla near Bamfield, said it received notice of appeal on Thursday.

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The award was made in December by the Specific Claims Tribunal, which hears claims by First Nations against the federal government regarding past wrongs. The tribunal found in 2014 that the federal government failed in its duty to the community relating to logging contracts between 1948 and 1969.

“This decision to appeal is outrageous,” said Robert Dennis, chief councillor of the Huu-ay-aht First Nations.

“Part of our reconciliation to this long-term dispute was to seek fair compensation. We trusted Canada’s judicial processes to achieve this, but we are extremely disappointed to hear this will be further prolonged.”

Dennis said a judicial review is unfair and a waste of taxpayers’ money after a clear decision in favour of the band.

The ruling says the Huu-ay-aht surrendered all salable timber on its largest reserve to the federal government in 1938, during a time of economic hardship. The federal government agreed to sell the timber on terms “most conducive” to the First Nation’s welfare.

The federal government issued a logging licence to a company called BSW Ltd. in 1942 with a special condition that allowed it a 21-year term that could be renewed, the ruling says.

When the Huu-ay-aht learned of the licence in 1948, the nation petitioned the government to cancel the agreement.

The First Nation argued it would not fully benefit from the lumber sales and that under the Indian Act, licences can be granted for only one year.

Canada allowed BSW to continue logging until 1969, and Judge Larry Whalen ruled in 2014 the government had committed multiple breaches of fiduciary duty.

Whalen wrote the government’s breaches included agreeing to the special condition in the first place and its ongoing failure to consult. Once alerted to the illegality of the renewable 21-year term, Canada should have cancelled the sale or revoked the underlying licence, he wrote.

In his reasons for decision regarding the compensation, Whalen notes that the First Nation and the government both agreed that “equitable compensation” was appropriate in this case.

Where they differed was on how that should be calculated. The Huu-ay-aht had asked for $14.5 million, while the government had suggested compensation of about $2.9 million.

Huu-ay-aht’s legal counsel, Kate Blomfield of Ratcliff & Company, expressed concern with the legal position put forward by Canada in the proceedings and on appeal.

“Canada’s position throughout this process has been that Huu-ay-aht should receive less compensation because the community was poor and could not afford to save and invest much of the funds that it was owed,” Blomfield said in a statement. “The tribunal rejected Canada’s position as ‘patently unfair,’ but Canada is again pursuing this argument.”

Dennis said the decision to appeal flies in the face of Prime Minister Justin Trudeau’s commitment to reconciliation with Canada’s indigenous peoples.

“Canada, through the prime minister, has been singing the tune of reconciliation,” he said. “This isn’t reconciliation, this is ongoing confrontation.”

He said the money was earmarked for economic development, language and culture efforts, natural resource development, community development and education and employment.

“It would help close the economic gap between ourselves and Canadian society,” Dennis said.

The Specific Claims Tribunal was established by the federal government in 2008 to give First Nations a quicker way to resolve monetary claims made against the government than going to court.

Its decisions are final and cannot be appealed; however, they are open to judicial review under the Federal Courts Act.

kderosa@timescolonist.com

— With files from The Canadian Press

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