The Specific Claims Tribunal held that the Kitselas First Nation had established a breach of legal obligation of the Crown due to the non-inclusion of lands in an Indian Reserve established in 1891. The excluded land included the site of an ancient Kitselas village. The Tribunal held that the evidence established “use and occupation” of the site by the Kitselas peoples, and that the Crown owed a fiduciary duty to the Kitselas when dealing with this cognizable interest in the land. This fiduciary duty was “amplified” by Article 13 of the Terms of Union of 1871, and was breached by the Crown. There was no proper basis for Commissioner Peter O’Reilly to exclude the site from the Kitselas Indian Reserve. He failed to make full disclosure of this exclusion to the Kitselas chiefs. The Crown failed to act reasonably and with due diligence as regards the best interest of the Kitselas peoples.

The Kitselas submitted this specific claim in April 2000. It claimed that the Crown breached its fiduciary obligations by excluding a 10.5 acre parcel of land, known as Lot 113, from Kitselas Indian Reserve No. 1. The reserve had been set apart for the Kitselas in 1891. Lot 113 includes the site of an ancient village named Gitaus. The Minister rejected the claim in 2009.

This claim proceeded in stages pursuant to a bifurcation order. This initial stage dealt with the validity of the claim. The claim for compensation had been severed.

The Tribunal reviewed the history of the Joint Indian Reserve Commission, and the appointment of Peter O’Reilly as Indian Reserve Commissioner in 1880. The language in Order in Council 1334, appointing O’Reilly, was cited several times by the Tribunal in this decision. The “responsible duties” of O’Reilly included “ascertaining accurately the requirements” of the Indian Bands that had not been assigned lands by the JIRC. In August 1880, the Department of Indian Affairs provided more precise instructions to O’Reilly. It noted that O’Reilly was to act on his own discretion. When allotting reserve lands, O’Reilly “should have special regard to the habits, wants and pursuits of the Band, to the amount of territory in the Country frequented by it, as well as to the claims of the White settlers (if any)”. O’Reilly was instructed to “assure the Indians of the anxious desire of the Government to deal justly and liberally with them”. Further, O’Reilly was instructed to be careful not to disturb the Indians in the possession of any villages, settlements, and other places to which they may be “especially attached”. DIA also directed O’Reilly to Sproat’s 1878 report in which he stated that the “first requirement” is to leave the Indians in the old places to which they are attached.

The Kitselas people are the easternmost member of the Tsimshian Nation, and located in the Skeena Valley northeast of Terrace, BC.  The archaeological evidence indicates an ancient village at Gitaus at the site of Lot 113. It was first occupied around 2000 – 1700 BC, and went into decline by 500 A.D. The Kitselas did not consider Gitaus to have been “abandoned”, although the archaeological evidence indicated that it was no longer a village site long before Contact with Europeans. The Tribunal held that, from the Aboriginal perspective, it was never abandoned. According to the oral history, Kitselas families resided at the Gitaus site before and after the arrival of the Hudson’s Bay Company. Gitaus was one of four winter villages of the Kitselas. By 1891, the local population had been decimated by epidemics of disease. The Kitselas population had shifted to another location on the Skeena River many centuries before colonization. However, there were still individual dwellings at Gitaus in 1891, as confirmed by oral history and the sketches by the surveyor Ashdown Green. There was a portage near the site used by the Kitselas.

Slade J. noted that there would not have been visible indications of a village in 1891, and the land would not have been perceived by O’Reilly as a village. By the mid-1860s, the Hudson’s Bay Company had sent explorers up the Skeena River. It acquired a building on the left bank of the Skeena, which was being used as a storehouse in 1891. There were no claims of white settlers to the lands at Lot 113.

In September 1891, O’Reilly travelled along the Skeena to identity land to set apart as a reserve for the Kitselas and other First Nations. Chief Samuel Wise and other Kitselas chiefs wrote to O’Reilly requesting land extending from the village of Gitsaex, ten miles along the Skeena in each direction. Lot 113 (Gitaus) would have fallen within this request. O’Reilly met with the Kitselas chiefs on October 5-6, 1891. He recorded that he excluded “10 acres at HB Warehouse” from the reserve. The record indicated that O’Reilly told the Kitselas chiefs that he could not give them a reserve 10 miles upstream and down, but “[w]herever your villages, gardens, and timber lands are I will give you a reserve that will embrace all”.

O’Reilly’s description of Kitselas Indian Reserve No. 1 stated that 10 acres on the left bank of the Skeena, on which the HBC storehouse stands, was not included. A sketch of the Reserve by Ashdown Green, a surveyor, was also noted. In January 1892, O’Reilly wrote to the provincial Chief Commissioner of Lands and Works and noted that he had omitted ten acres from the Reserve “as I believe it would prove a convenience to the public to have this land declared a public reserve”.

In 1893, O’Reilly returned to the area to allot new reserves and amend the allotment for IR No. 1. At the request of the Kitselas, O’Reilly removed 640 acres from IR No. 1 and increased the size of IR No. 4 by 490 acres. In his report to the Chief Commissioner of Lands and Works, O’Reilly again noted that 10 acres had been excluded from IR No. 1, and that O’Reilly believed that it would prove a convenience to the public.

The excluded land (Lot 113) was landlocked within IR No. 1. British Columbia subdivided the 10 acres into 50 lots, and some were purchased by speculators. It was the site of a short-lived boomtown before World War I. All of the lots later reverted to the Province, and the land is now a provincial park.

The Tribunal held that the oral history evidence about use of Lot 113 was relevant for three purposes:

  1. Kitselas occupation of the Gitaus site up to the 1890s and beyond;
  2. the understanding of the Kitselas chiefs when they requested land; and,
  3. Canada’s reliance on the absence of any objections by the Chiefs when the Gitaus site was excluded from IR No. 1.

The Commission was required, when identifying land to be set apart as a reserve, to have special regard to the habits, wants, and pursuits of the Aboriginal nations. O’Reilly was instructed to assure the Indians of the desire of the government to deal justly and liberally with them. He was to interfere as little as possible with tribal arrangements, and not disturb the Indians in the possession of any villages occupied by them and to which they may be especially attached. 

Fiduciary Duty

The parties disputed as to whether a fiduciary duty arose in relation to the reserve creation. Canada submitted that there was no “cognizable Indian interest” that was sufficiently specific for the purposes of fiduciary law. Canada also relied upon Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 for the proposition that the interest affected must be a specific private law interest to which the person has a pre-existing distinct and complete legal entitlement. Slade J. held that the Supreme Court of Canada in Elder Advocates, when considering the existence of a government fiduciary duty, actually drew a distinction between the Crown/Aboriginal relationship and the Crown’s relationship with other groups. He concluded that it was not necessary for the Kitselas to base its claim to a cognizable interest on proof of a “pre-existing distinct and complete legal entitlement”; however, it was necessary to establish an interest contemplated by Article 13 of the Terms of Union.

The Supreme Court of Canada surveyed the history of reserve creation in British Columbia in Wewaykum Indian Band v. Canada, 2002 SCC 79. Article 13 of the Terms of Union required that tracts of land reserved for the use and benefit of the Indians be conveyed to the Dominion government in trust for the Indians. Federal-provincial cooperation was required in the establishment of reserves. The discretion asserted by the Crown left the Aboriginal population vulnerable to the risks of government misconduct or ineptitude. The Crown therefore had discretionary control over the lives of Aboriginal peoples, which is the hallmark of a fiduciary relation. The Tribunal stated:

The fiduciary duty exists to facilitate supervision of the high degree of discretionary control assumed by the Crown over the lives of Aboriginal peoples. In this context, Article 13 expresses the unilateral undertaking that may, under s. 14(1)(c) of the [Specific Claims Tribunal Act], form the basis for breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands.

If the Kitselas had a cognizable interest in the Gitaus site, the obligation assumed by the federal Crown under Article 13 of the Terms of Union would apply.

The Tribunal found that the Kitselas had a cognizable interest in the Gitaus site. Article 13 of the Terms of Union recognized the Indian interest in the ongoing occupation of land they used. The instructions provided to the Reserve Commissioners referred to the “habits, wants and pursuits” of Aboriginal groups. The specific instructions to O’Reilly were again reviewed by the Tribunal. Slade J. held:

The Indian interest in the land they used and occupied was recognized by the colonial authorities. On confederation, the colonial policy continued as a constitutional responsibility of Canada. The JIRC was not mandated to allot reserves out of thin air. Commissioners were to allot as reserves the land habitually used and occupied by the Indian Nations.

The direction to the Commissioners, formalized by order of the Governor in Council, was a policy of recognition that the Indian Nations had, at minimum, a substantial practical interest in land they habitually used. This was a cognizable interest. 

The interest of the Kitselas was based upon use and occupation, and did not depend upon the exercise of O’Reilly’s discretion. The Crown “recognized habitual land use as an interest to be affirmed by the creation of reserves”. Where the evidence supported a finding of fact that the land was habitually used, the Indian interest was cognizable.

O’Reilly was the central actor in the creation of reserves. His recommendations determined what land would be set aside. If O’Reilly had not excluded Lot 113 from Kitselas IR No. 1, “there is no basis in the evidence that would support a finding that it would not form part of Kitselas I.R. No. 1 today”. The question is whether the exclusion amounts to a breach of fiduciary duty.

The Tribunal referred to a letter dated 29 September 1891 sent to O’Reilly by the Kitselas chiefs setting out their request for land. This description would have included the Gitaus site (Lot 113). O’Reilly told the chiefs that he could not allot a reserve that was 10 miles upstream and downstream from Gitsaex, but would grant a reserve that would embrace all of the villages, gardens and timberlands. The reserve allotted by O’Reilly was based on his findings of Kitselas use of the land.

Slade J. stated:

There is nothing to indicate that the 10.5 acres that were not included were used any less than the land “granted”. If anything, this land was used intensively compared to much of the land that was reserved. There were buildings, a garden and one end of a portage in the immediate area.

O’Reilly did not make a distinction between the allotted and excluded areas on the basis of the “habits, wants and pursuits” of the Kitselas. He excluded Lot 113 because he thought it would serve as a public or government reserve. Slade J. held that the terms of the Reserve Commissioner made no mention of setting aside land for public or government reserves as an exception from land habitually used by the Indians.

The Tribunal therefore held that the Kitselas had a cognizable interest in Lot 113 as of 1891 and 1893.

Chief Wise had requested that the reserve include lands used by their forefathers. Canada submitted that such a reference would relate to an assertion of Aboriginal title, which is insufficiently specific to give rise to a fiduciary duty. The Tribunal held that this statement was an assertion of a known fact that supported the present use of the land. It did not raise allegations of aboriginal rights as a basis for the claim, and therefore s. 15(1)(c) of the Specific Claims Tribunal Act does not bar the claim.

The Tribunal held that there was a breach of the Crown’s fiduciary duty in connection with the allotment of Kitselas IR No. 1. The Crown’s duty included obligations of loyalty, good faith, full disclosure, and acting reasonably and with diligence in regards to the best interests of the Indians. The task assigned to O’Reilly was to ascertain “accurately” the requirements of the Indian Band. The Tribunal held that the evidence does not support a finding that O’Reilly was informed of the existence of Gitaus. Canada took the position that the Kitselas chiefs did not object to the exclusion of Lot 113 from IR No. 1, therefore indicating that they did not consider the land to be theirs. The Tribunal held that this argument only had merit if the Chiefs knew of the exclusion.

The duty of full disclosure in the fiduciary context involves the beneficiaries having the fullest information upon all material facts. O’Reilly knew that the Kitselas wanted Lot 113. The Tribunal was not satisfied, looking on the evidence as a whole, that O’Reilly informed the Chiefs that Lot 113 had been excluded from Kitselas IR No. 1. Slade J. found that if Chief Samuel Wise had been told that the Gitaus site had been excluded, “he would surely have objected”. When the “boomtown” of Kitselas was built on the site of Lot 113 during the years before World War I, the Kitselas would have known of the exclusion of Lot 113 from the reserve. By this point, the exclusion was “an accomplished fact”.

The Tribunal held that disclosure of the exclusion to the Chiefs, and their lack of objection to it, would not have established a basis for finding that the Kitselas had no “cognizable interest” in Lot 113. Their interest was clearly established.

 Article 4 of the instructions to the Commissioners included taking into account the claims of White settlers. Lot 113 was not the subject of claims of White settlers. There were no settlements in the area.

Canada assumed the primary role, following Confederation, in the relationship between Aboriginal peoples and the Crown. Pursuant to Article 13 of the Terms of Union, it had sole authority over Aboriginal land interests. The terms governing the establishment of reserves was effected by executive orders that created the JIRC. The Commissioners were to be guided in determining the allotment of reserves by a liberal policy. The instruction that the Commissioner have regard to the habits, wants and pursuits of Aboriginal nations was a reference to land. The evidence establishes the “use and occupation” of the Gitaus site by the Kitselas peoples. This was a cognizable interest. Federal jurisdiction, amplified by Article 13, established discretionary authority in decisions about the allotment of reserves. The Crown therefore owed a fiduciary duty. O’Reilly failed to make a distinction between allotted land and excluded land on the basis of the habits, wants and pursuits of the Kitselas peoples. The claim to the Gitaus site at Lot 113 was stronger than most of the land that was allotted to the Kitselas. O’Reilly had no latitude to exercise his discretion in a way to exclude Lot 113. There were no claims of White settlers to the land.

The Tribunal made the following determinations:

  1. Commissioner O’Reilly failed to make full disclosure appropriate to the matter at hand by not telling the Chiefs of the exclusion of the 10.5 acre parcel in circumstances in which there was clear evidence of the then current use by Kitselas peoples of the area in question; and,
  2. the Crown, by the actions of its representative, Commissioner O’Reilly, failed to act reasonably and with due diligence as regards the best interest of the Kitselas peoples in excluding land additional to the site of the HBC storehouse and river access from Kitselas Indian Reservation No. 1.

This claim fell within section 14(1)(c) of the Specific Claims Tribunal Act. The Kitselas established a breach of legal obligation of the Crown due to the non-inclusion of land in excess of the requirements of the Hudson Bay Company (1 acre) in Kitselas IR No. 1.

On March 21, Canada applied to the Federal Court of Appeal for judicial review of the decision of the Tribunal.


Scott Kerwin


Aboriginal Law