Williams Lake Indian Band Appellant v. Her Majesty The Queen in Right of Canada as represented by the Minister of Aboriginal Affairs and Northern Development Canada, 2018 SCC 4

SUPREME COURT OF CANADA Citation: Williams Lake Indian Band v.

Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83 Appeal Heard: April 26, 2017 Judgment Rendered: February 2, 2018 Docket: 36983 Between: Williams Lake Indian Band Appellant and Her Majesty The Queen in Right of Canada as represented by the Minister of Aboriginal Affairs and Northern Development Canada Respondent - and - Specific Claims Tribunal, Assembly of Manitoba Chiefs, Federation of Sovereign Indigenous Nations, Indigenous Bar Association in Canada, Assembly of First Nations, Union of British Columbia Indian Chiefs, Nlaka’pamux Nation Tribal Council, Stó:lō Nation, Stó:lō Tribal Council, Carrier Sekani Tribal Council, Assembly of First Nations of Quebec and Labrador, Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe and Halalt First Nation Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 132) Wagner J. (Abella, Moldaver, Karakatsanis and Gascon JJ. concurring) Reasons Dissenting in Part: (paras. 133 to 158) Rowe J. (Côté J. concurring) Dissenting Reasons: (paras. 159 to 213) Brown J. (McLachlin C.J. concurring)

Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83 Williams Lake Indian Band Appellant v.

Her Majesty The Queen in Right of Canada as represented by the Minister of Aboriginal Affairs and Northern Development Canada Respondent and Specific Claims Tribunal, Assembly of Manitoba Chiefs, Federation of Sovereign Indigenous Nations, Indigenous Bar Association in Canada, Assembly of First Nations, Union of British Columbia Indian Chiefs, Nlaka’pamux Nation Tribal Council, Stó:lō Nation, Stó:lō Tribal Council, Carrier Sekani Tribal Council, Assembly of First Nations of Quebec and Labrador, Cowichan Tribes, Stz’uminus First Nation, Penelakut Tribe and Halalt First Nation Interveners Indexed as: Williams Lake Indian Band v.

Canada (Aboriginal Affairs and Northern Development) 2018 SCC 4 File No.: 36983. 2017: April 26; 2018: February 2.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the federal court of appeal Aboriginal law — Land claims — Crown — Fiduciary duty — Indian reserves — Band seeking to establish statutory specific claim and obtain compensation for losses of lands within its traditional territory pre-empted by settlers before Confederation — Whether before Confederation Imperial Crown owed to band, and breached, legal obligation under colonial legislation to protect lands from pre-emption and set them aside as reserve — Whether after Confederation federal Crown owed, and breached, fiduciary obligation to set aside pre-emptions and allocate lands as reserve — Framework for determining whether Crown owed and breached fiduciary obligation — British Columbia Terms of Union, R.S.C. 1985, App.

II, No. 10, Art. 13 — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14(1) (b), (c). Aboriginal law — Land claims — Crown liability — Band seeking to validate statutory specific claim based on pre- Confederation breaches against federal Crown — Whether pre-Confederation legal obligation alleged to have been breached was legal obligation of Crown for which federal Crown assumed responsibility — Extended meaning of “Crown” — British Columbia Terms of Union, R.S.C. 1985, App. II, No. 10, Art. 13 — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14(2) .

Administrative law — Judicial review — Boards and tribunals — Standard of review applicable to Specific Claims Tribunal’s decision to validate band’s claim — Whether expanding upon Tribunal’s reasoning constitutes permissible supplementing of Tribunal’s reasons — Specific Claims Tribunal Act, S.C. 2008, c. 22, s. 14 . The Williams Lake Indian Band’s (“band”) traditional territory includes the site of a village near Williams Lake in British Columbia (“Village Lands”). In the early days of the Colony, settlers were rapidly taking up unsurveyed lands, including those occupied by the band.

In response, the Colony enacted the Proclamation relating to acquisition of Land, 1860 (“ Proclamation No. 15 ”), under which “Indian settlements” were not available for pre-emption. The officials responsible for implementing the pre-emption system took no steps to protect the Village Lands from pre-emption or mark them out as a reserve. After British Columbia joined Confederation, Canada assumed, under

Article 13 of the British Columbia Terms of Union (“ Terms of Union ”), responsibility for the creation of Indian reserves according to a policy as liberal as the Colony’s. The federal Crown officials acknowledged that the pre-emptions had been a mistake but were not prepared to interfere with settlers’ rights. Instead, they allocated to the band another tract of land as a reserve. The

band filed a claim to compensation under the Specific Claims Tribunal Act (“Act”) for losses arising from these events. Parliament established the Specific Claims Tribunal (“Tribunal”) with a mandate to award monetary compensation to First Nations for claims arising from the Crown’s failure to honour its legal obligations to Indigenous peoples. In this case, the Tribunal concluded that the band had a valid specific claim for losses arising from the Crown’s acts and omissions in relation to the Village Lands. It found that the Imperial Crown had owed, and breached, a legal obligation to the band in relation to the protection of its lands from pre-emption based on s. 14(1)(

b) of the Act and that the Crown in right of Canada (“Canada”) had owed, and breached, a fiduciary obligation to the band based on s. 14(1)(c). It further found that Canada could be held responsible under the Act for the band’s pre-Confederation claim. Before the Tribunal ruled on compensation, Canada sought judicial review of the Tribunal’s validity decision. The Federal Court of Appeal allowed Canada’s application and dismissed the band’s claim. Held (Côté and Rowe JJ. dissenting in part and McLachlin C.J. and Brown J. dissenting): The appeal should be allowed and the Tribunal’s decision restored.

Per Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: The standard of review applicable to the Tribunal’s decision is reasonableness. The validity of the band’s claim did not depend on the resolution of a constitutional issue. Rather, it required the Tribunal to interpret its home statute to decide whether the grounds advanced relate to a legal obligation of the Crown within the meaning of s. 14 of the Act . It also required the Tribunal to derive legal obligations of the Crown from legislation, treaties and the common law, including fiduciary law.

In making these legal determinations, the Tribunal applies judicial doctrines to historical circumstances that, by virtue of the applicable limitation periods, others will rarely consider. This distinctive task conferred by Parliament requires a measure of flexibility and adaptation to map onto historical claims. The application of fiduciary law in the historical contexts in specific claims and familiarity with the large and specialized evidentiary records fall within the Tribunal’s expertise and are entitled to deference.

The Tribunal’s analysis of the Crown’s sui generis fiduciary obligation is a sufficient basis on which to restore its decision, without considering the application of an ad hoc fiduciary obligation to the conduct of Crown officials under either s. 14(1) (

b) or (

c) of the Act . A sui generis fiduciary obligation arises from the Crown’s discretionary control over a specific or cognizable Aboriginal interest and is specific to the relationship between the Crown and Aboriginal peoples. The interest at stake must be sufficiently independent of the Crown’s executive and legislative functions to give rise to fiduciary duties. A fiduciary obligation requires that the Crown’s discretionary control be exercised in accordance with the standard of conduct to which equity holds a fiduciary, as embodied, for example, in the fiduciary duties of loyalty, good faith and full disclosure.

The standard of care to which a fiduciary is held in its pursuit of the beneficiary’s interests is that of an ordinary prudence in managing one’s own affairs. The conduct of the fiduciary that comes under scrutiny is its exercise of discretionary control over the Aboriginal interest vulnerable to the exercise of discretion. The Crown fulfils its fiduciary obligation by meeting the prescribed standard of conduct, not by delivering a particular result.

Although the Crown must have regard to competing interests, the existence of such interests does not absolve it altogether of its fiduciary duty to reconcile them fairly. The Tribunal’s conclusion that the band had established a valid claim on the grounds of the Imperial Crown’s breach of a sui generis fiduciary obligation — before Confederation based on s. 14(1) (

b) of the Act — was reasonable. The Tribunal identified the specific or cognizable Aboriginal interest at stake as the band’s interest in the Village Lands, and found that, by Proclamation No. 15 , the Imperial Crown had assumed discretionary control over that interest. The Tribunal further found that the Crown had not acted with reference to the band’s best interest in exercising its control over these lands.

The duty of ordinary prudence required the Crown, at a minimum, to inquire into the extent of the band’s settlement so that it could be protected, and the failure to do so put the Crown in breach of the fiduciary obligation. The Village Lands would have qualified as “Indian settlements” under Proclamation No. 15 and the colonial policy governing its implementation ought to have led to measures reserving them from pre-emption.

In the Tribunal’s view, the band’s interest in the Village Lands in respect of which the Crown owed a fiduciary duty did not depend on whether or not Crown officials took the appropriate action to secure land protection. This conclusion meets the requirement for an Aboriginal interest capable of grounding a sui generis fiduciary obligation insofar as officials were in a position to identify the interest at stake and it was sufficiently independent of the Crown’s executive and legislative functions. The band’s interest in the Village Lands was not created by colonial legislation.

Rather, it was recognized by enactments and policies as an independent interest in land anchored in collective use and occupation. The Tribunal’s conclusion that Canada owed, and breached, a fiduciary obligation in relation to the Village Lands, based on s. 14(1) (

c) of the Act , was also reasonable. The Tribunal identified the specific or cognizable Aboriginal interest in the Village Lands as an interest that was vulnerable to the adverse exercise of Canada’s discretion. It held that after British Columbia’s entry into Confederation, Canada’s discretion in relation to Aboriginal land interests flowed from its position as the exclusive intermediary with the Province in relation to those interests in the reserve creation process.

It openly acknowledged that such discretion was limited by the need for provincial cooperation and that Canada could not unilaterally create a reserve. Its conclusion that a fiduciary obligation arose in the absence of complete or exclusive control aligns with general principles of fiduciary law — that the alleged fiduciary have scope for the exercise of discretion or control to affect the beneficiary’s interests. The extent to which the claimed loss is attributable to Canada’s breach, as opposed to the Province, raises questions of causation to be determined at the compensation stage.

Furthermore, the Tribunal did not ignore the distribution of powers and responsibilities under the Terms of Union when it found that the band’s interest lay in the Village Lands and defined Canada’s fiduciary obligation in relation to that interest. Neither Canada’s constitutional obligation to create reserves according to a particular policy, nor the Province’s obligation to convey land for that purpose, is in issue.

The question is not whether the band was entitled to the allotment of the Village Lands as a reserve — either under the Terms of Union or as a consequence of Canada’s fiduciary obligation — but whether the actions, decisions and judgments of the federal Crown officials that would affect the band’s interest met the applicable standard of conduct in relation to that interest. The Tribunal found that Canada had to fulfil the fiduciary duties with respect to an interest in the land with which the band had a tangible, practical and cultural connection, and that it had failed to discharge them.

The Tribunal did not find that Canada owed the band a fiduciary duty at large, nor did it find that Canada’s obligation as fiduciary was to deliver the allotment of the Village Lands as a reserve. The Tribunal considered all of the circumstances, and the extent to which Canada met the requisite standard of conduct was a heavily fact-based inquiry. It was reasonable for the Tribunal to conclude that federal Crown officials with knowledge of the circumstances surrounding the Williams Lake pre-emptions and the band’s situation did nothing to challenge the pre-emptions.

Their inaction and the decision-making that led to the eventual allotment of a reserve to the band elsewhere fell short of fulfilling the Crown’s

fiduciary obligations. The Tribunal reasonably concluded that ordinary prudence required them to make use of the available means of preserving the band’s interest by seeking, on an immediate basis, enforcement of provincial protection for Indian settlements, and, on a more permanent basis, having the land allotted as a reserve. While Canada was obliged to consider settler interests, in this case, the only competing interests were those acquired as unlawful pre-emptions, which the Tribunal did consider.

The fact that Canada eventually procured a reserve for the band elsewhere cannot undo the breach of fiduciary duty, although the Tribunal reasonably concluded that it may reduce the amount of compensation. The Tribunal’s definition of the Crown as a single, continuous and indivisible entity to validate the band’s claim against Canada for pre-Confederation breaches, under s. 14(2) of the Act , was reasonable.

This conclusion is grounded in the Tribunal’s decision as a whole, and expanding upon it based on the record, the arguments and the legal principles underlying the decision, constitutes permissible supplementing of the Tribunal’s reasons. Section 14(2) defines “Crown” by reference to the legal obligation whose breach or non-fulfilment forms the basis for a specific claim. A legal obligation of the Imperial Crown will satisfy the first branch — the “legal obligation” branch — where it “became . . . the responsibility of” Canada.

Although the Tribunal did not apply it, the second branch — the “liability” branch — will be met where “any liability relating to its breach or non-fulfilment became . . . the responsibility of” Canada. The Tribunal found that the Imperial Crown came within the extended meaning of “Crown” because the fiduciary obligation that it had allegedly breached was a legal obligation that became the responsibility of Canada, and for which Canada would, if in the place of the colony, have been in breach. This reading effectively projected Canada backwards into the place of the Imperial Crown for certain obligations.

The Tribunal indicated that this

interpretation of the legal obligation branch of s. 14(2) would not extend the application of s. 14(1)(

b) to all potential liabilities of the Imperial Crown, and that Canada’s post-Confederation fiduciary obligations supplied the limits contemplated by that branch. The Tribunal treated s. 14(2) as a free standing basis for Canada’s liability for the Imperial Crown’s breaches of certain obligations and rejected the view that it operates as an enforcement mechanism. It found the legal obligation branch not to require an independent and outstanding obligation — transferred to Canada under the Terms of Union — to establish the Village Lands as a reserve. This

interpretation of the legal obligation branch as encompassing certain fiduciary obligations of the former colonies is consistent with the structure of s. 14, and the nature of fiduciary obligations which does not require the transfer of the obligation itself. It was therefore open to the Tribunal to interpret s. 14(2) as giving effect, not to the assumption by Canada of a specific obligation, but of a discretionary power to affect the band’s interests in the context of an established fiduciary relationship.

The Tribunal’s view of s. 14(2) is consistent with its understanding of the role Parliament intended the extended meaning of “Crown” to serve within the specific claims scheme — to remedy historical injustices committed by the Crown, be it the Imperial Crown or Canada. This view is also consistent with an Indigenous perspective on the continuity of the fiduciary relationship between Indigenous peoples and the Crown before and after Confederation.

Per Côté and Rowe JJ. (dissenting in part): There is agreement with the majority that the Tribunal reasonably found that the Imperial Crown owed and breached a fiduciary duty to the band prior to Confederation, and that the federal Crown owed and breached a sui generis fiduciary duty to the band following the entry of British Columbia into Confederation. There is also agreement that the Act allows the Tribunal to validate specific claims based on certain wrongs committed by the “Sovereign of Great Britain and its colonies” prior to Confederation. In this case, the band has such a claim pursuant to s. 14(1) (

b) of the Act based on the fiduciary breach by the Colony of British Columbia prior to 1871. For the Tribunal to hold the federal Crown liable for this claim, however, it must have found that the Colony of British Columbia came within the extended meaning of “Crown” pursuant to s. 14(2) of the Act.

Given the near-total silence of the Tribunal on whether and — more importantly — how the obligation or liability underlying the claim became that of the federal Crown upon Confederation, the matter should be remitted to the Tribunal for further consideration rather than adopting the supplementary reasons set out by the majority. In a reasonableness review, reasons are an essential focus for reviewing courts as they describe both the result and — crucially — the justificatory process used to reach that result. It is not that reasons need attain a uniform standard of perfection.

In many cases, reviewing courts will have a certain latitude to uphold administrative decisions that would, under stricter scrutiny, be deficient in their justification. In so doing, reviewing courts pay respectful attention to the reasons offered or which could be offered in support of a decision. Thus, in certain circumstances, reviewing courts will properly supplement the reasons under review. The power of reviewing courts to supplement deficient reasons, however, is not limitless. There must be a sufficient basis in the reasons themselves to which can be added supplementary justification.

In this case, the Tribunal was virtually silent on the operation of s. 14(2) . Given the pivotal role played by s. 14(2) in the scheme of the Act , this lack of justification — this absence of reasons — is untenable. In supplementing — or even substituting — the Tribunal’s sparse reasons on the subject of s. 14(2) , the majority sets out an analysis based on the common law of fiduciary obligations. While its reasons lead to the same conclusion as the Tribunal, this is the extent of their commonality.

Having said nothing about the interplay between s. 14(2) and the common law of fiduciary obligations, the Tribunal did no more than state a bald conclusion about the operation of the Act relative to pre-Confederation claims. The reasons of the majority, thus, are supplementary in that they supply the entirety of the analysis. Reviewing courts can sometimes supplement reasons that are silent on certain issues that may have been implicitly decided.

When the implied line of reasoning is obvious, supplementing may be an appropriate means of paying respectful attention to the reasons offered or which could be offered in support of a decision. However, when faced with an absence of analysis on an essential element such that the implied line of reasoning is inconclusive or completely obscure, the reviewing court should not impute its own justification as a means of upholding the decision. Supplementary reasons must build upon those actually provided by the legislature’s chosen decision maker.

The matter should therefore be remitted to the Tribunal for further reasons on whether — and how — the obligations and liabilities of the Colony pursuant to s. 14(1) (

b) of the Act became those of the federal Crown pursuant to s. 14(2) . Per McLachlin C.J. and Brown (dissenting): The Tribunal’s decision is reviewable for reasonableness, subject to the caveat that its

interpretation of the Terms of Union — a constitutional instrument — is reviewable for correctness. There is agreement with the majority’s conclusion that the Tribunal reasonably found that, prior to Confederation, the Imperial Crown breached its fiduciary duty

owed to the band. However, the conclusion that Canada breached its ad hoc and sui generis fiduciary duties to the band is unreasonable,as is the Tribunal’s treatment of the legal question of Canada’s liability for the Imperial Crown’s breach pursuant to s. 14(2) of the Act.The matter should be remitted to the Tribunal for determination of whether the legal obligation that was breached or liability relating toits breach became the responsibility of Canada. The Tribunal’s finding that an ad hoc fiduciary duty of utmost loyalty was owed to the band by operation of

Article 13 of theTerms of Union is contrary to binding authority and is, as such, unsustainable. As to its finding that Canada breached a sui generisfiduciary duty under s. 14(1)(

c) of the Act, the Tribunal’s starting premise for this conclusion — that the band’s best interests could lieonly in securing the Village Lands as a reserve — is misguided in three respects. First, this assertion is neither justified in the Tribunal’sreasons nor supported by the evidentiary record. Second, the finding of a breach of Canada’s fiduciary duty fails to account for the limitsof Canada’s responsibilities and powers under the Terms of Union, and in particular, under

Article 13. The exercise of discretion byCanada in relation to Aboriginal interests was confined by the country’s federal structure and the Terms of Union. Canada could notunilaterally mark out provincial land as reserves. The Province retained jurisdiction over the setting apart of provincial Crown lands as areserve and exercised that effective veto. Third, the Tribunal’s premise does not cohere to jurisprudence, which calls for a measure offlexibility, grounded in the historical context of a matter, in relation to the creation of reserves under

Article 13. This provision imposedupon Canada not an obligation to continue the Colony’s policy regarding the creation of Indian reserves, but rather to pursue a policy thatis as liberal as that pursued by the Colony. In light of

Article 13, Canada owed no obligation arising from cognizable interests in specificlands. The sui generis fiduciary duty does not demand a perfect solution, and Canada did not fail to discharge this duty in its dealingswith the band relating to the Village Lands. Finally, by confining the significance of Canada’s allotment of land to the band, the Tribunalunduly narrowed its focus, thereby truncating its analysis of Canada’s efforts to discharge its fiduciary duty. The band’s claim broughtunder s. 14(1)(

c) of the Act should therefore be dismissed. The Tribunal also unreasonably held Canada responsible for the Imperial Crown’s breach of this duty. Section 14(2) of theAct does not impose blanket responsibility upon Canada for all colonial obligations and liabilities that are the subject of a specific claimunder s. 14(1)(b). It is an enforcement mechanism which compels Canada to answer for the Imperial Crown where Canada has by someother means acquired responsibility for an obligation or a liability relating to Indians or lands reserved for Indians. This

interpretation isconsistent with the careful wording of the provision, which expresses Parliament’s intention to disclaim liability for matters falling underprovincial responsibility. In this case, s. 14(2) of the Act can only be triggered by an obligation or liability acquired by Canada underArticle 13 of the Terms of Union. Canada’s responsibility for the Imperial Crown’s breach on the liability branch of s. 14(2) could alsobe triggered by

Article 1 of the Terms of Union, by which Canada agreed to be “liable for the debts and liabilities of British Columbiaexisting at the time of the Union”. The Tribunal, however, failed to consider whether this provision embraces the Imperial Crown’sliability for its failure to protect the Village Lands from pre-emption. It simply equated pre-Confederation colonial obligations andliabilities with post-Confederation obligations and liabilities, which is not remotely defensible by any standard of review.

The majority’s “backward-looking ‘projection’” theory of Canada’s statutory liability is not an appropriate supplement tothe Tribunal’s deficient reasons regarding s. 14(2) of the Act. It fails to account for the intention of Parliament and has no support in law.On this theory, a finding of a post-Confederation breach of a legal obligation under s. 14(1)(

c) would appear to be determinative ofCanada’s liability in respect of pre-Confederation breaches, and s. 14(2) is superfluous where a related post-Confederation breach byCanada is made out. The fact that the theory may be consistent with Indigenous views as to the continuity of fiduciary relationships withthe Crown, and Canada’s growing acceptance of responsibility for remedying historical wrongs does not justify the Tribunal’s readingout of clear statutory text. The legal obligation or liability relating to its breach must still be shown to have otherwise become theresponsibility of Canada.

This theory furnishes no comprehensible guidance to the Tribunal as it adjudicates the claims brought before it.Nor does it explain how the Tribunal is to apply ss. 14(1)(

b) and 14(2) where the legislative shortcut via this theory is unavailable —that is, where liability has not been imposed on Canada for breach of a related legal obligation under s. 14(1)(c). Rights and responsibilities whose discharge is of potentially central importance to achieving reconciliation between Canadaand Indigenous peoples in British Columbia were constitutionally entrenched, by mutual accord, between the Province and Canada. TheTribunal’s reasons elide that constitutional division of responsibilities, and thereby risk upsetting that accord.

The question of whetherArticles 1 and 13 of the Terms of Union, correctly understood and interpreted, support Canada’s liability under s. 14(2) should thereforebe remitted to the Tribunal for determination. If the band succeeds on either question, the matter may then proceed to the compensationstage. Cases Cited By Wagner J. Applied: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; referred to: Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; Lac La Ronge Band v. Canada (Indian Affairs and Northern Development), 2014 SCTC 8;Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,2016 SCC 47, [2016] 2 S.C.R. 293; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Canadav. Kitselas First Nation, 2014 FCA 150, 460 N.R. 185, aff’g 2013 SCTC 1; Lac La Ronge Indian Band v. Canada, 2015 FCA 154, 474N.R. 283; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3S.C.R. 616; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Kovach, Re, (BCCA), [1999] 1 W.W.R. 498, rev’d 2000 SCC 3, [2000] 1 S.C.R. 55; Alberta (Workers’ Compensation Board) v. Alberta (AppealsCommission for Workers’ Compensation), 2013 ABCA 412, 370 D.L.R. (4th) 118; Canada (Attorney General) v. Lameman, 2008 SCC14, [2008] 1 S.C.R. 372; R. v. Salituro, (SCC), [1991] 3 S.C.R. 654; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R.494; Law Society of New Brunswick v.

Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Newfoundland and Labrador Nurses’ Union v.Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227, [2014] 1 F.C.R.766; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654;Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R.458; Shafron v.

KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009] 1 S.C.R. 157; Galambos v. Perez, 2009 SCC 48, [2009] 3S.C.R. 247; Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377; R. v. Sparrow, (SCC), [1990] 1 S.C.R.

1075; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Manitoba Metis Federation Inc. v.Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2S.C.R. 261; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), (SCC),[1995] 4 S.C.R. 344; Fales v. Canada Permanent Trust Co., (SCC), [1977] 2 S.C.R. 302; Ross River Dena CouncilBand v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816; Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9, [2009] 1 S.C.R. 222;Canson Enterprises Ltd. v. Boughton & Co., (SCC), [1991] 3 S.C.R. 534; Whitefish Lake Band of Indians v. Canada(Attorney General), 2007 ONCA 744, 87 O.R. (3d) 321; Keech v. Sandford (1726), Sel. Cas. T. King 61, 25 E.R. 223; Popkum FirstNation v. Canada (Indian Affairs and Northern Development), 2016 SCTC 12; Huu-Ay-Aht First Nations v. Canada (Indian Affairs andNorthern Development), 2016 SCTC 14; McInerney v. MacDonald, (SCC), [1992] 2 S.C.R. 138; Osoyoos Indian Bandv. Oliver (Town), 2001 SCC 85, [2001] 3 S.C.R. 746; Frame v.

Smith, (SCC), [1987] 2 S.C.R. 99; Lake Babine Nation v.Canada (Indian Affairs and Northern Development), 2015 SCTC 5; Akisq’nuk First Nation v. Canada (Indian Affairs and NorthernDevelopment), 2016 SCTC 3; Jack v. The Queen, (SCC), [1980] 1 S.C.R. 294; Canada Post Corp. v. Public ServiceAlliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, rev’d 2011 SCC 57, [2011] 3 S.C.R. 572; Canada (Attorney General) v. Delios,2015 FCA 117, 472 N.R. 171; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Canada(Canadian Human Rights Commission) v.

Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Delta Air Lines Inc. v.Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6; Petro-Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135;Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, (SCC), [1990] 2S.C.R. 85. By Rowe J. (dissenting in part) Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Alberta (Information and Privacy Commissioner) v.Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Newfoundland and Labrador Nurses’ Union v.

Newfoundland andLabrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Mouvement laïque québécois v. Saguenay(City), 2015 SCC 16, [2015] 2 S.C.R. 3; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2S.C.R. 293; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013]2 S.C.R. 458; Agraira v.

Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Delta Air Lines Inc.v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6; Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R.(4th) 267. By Brown J. (dissenting) British Columbia (Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41; Dunsmuirv. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2S.C.R. 504; Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2S.C.R. 283; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197; McLean v. BritishColumbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Manitoba Metis Federation Inc. v. Canada (Attorney General),2013 SCC 14, [2013] 1 S.C.R. 623; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; Sagharian(Litigation Guardian of) v. Ontario (Minister of Education), 2008 ONCA 411, 172 C.R.R. (2d) 105; Harris v.

Canada, 2001 FCT 1408,[2002] 2 F.C. 484; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Haida Nation v. British Columbia (Ministerof Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Williams v.Canada (Public Safety and Emergency Preparedness), 2017 FCA 252; Nowegijick v. The Queen, (SCC), [1983] 1S.C.R. 29; Mitchell v. Peguis Indian Band, (SCC), [1990] 2 S.C.R. 85; Alberta (Information and PrivacyCommissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Petro-Canada v.

Workers’ Compensation Board(B.C.), 2009 BCCA 396, 276 B.C.A.C. 135; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6. Statutes and Regulations Cited British Columbia Terms of Union (reprinted in R.S.C. 1985, App. II, No. 10), Arts. 1, 13. Constitution Act, 1867, s. 92(5). Constitution Act, 1982, s. 52(2). Indian Act, R.S.C. 1952, c. 149. Land Act, 1875, S.B.C. 1875, c. 5 (reprinted in R.S.B.C. 1877, c. 98), ss. 3, 61. Land Amendment Act, 1879, S.B.C. 1879, c. 21, s. 5. Land Ordinance, 1865, O.B.C. 1865, c. 27 (reprinted in R.S.B.C. 1871, App. No. 23), s. 12.

Land Ordinance, 1870, O.B.C. 1870, c. 18, s. 3. Pre-emption Consolidation Act, 1861 (reprinted in R.S.B.C. 1871, App. No. 21), s. 3. Proclamation relating to acquisition of Land, 1859 (reprinted in R.S.B.C. 1871, App. No. 13). Proclamation relating to acquisition of Land, 1860 (reprinted in R.S.B.C. 1871, App. No. 15), Cl. 1. Royal Proclamation (1763) (reprinted in R.S.C. 1985, App. II, No. 1). Specific Claims Tribunal Act, S.C. 2008, c. 22,

preamble, ss. 2 “Crown”, 3, 6(2), 11, 13(1)(a), (b), 14, 16(1), 20 to 23.

Specific Claims Tribunal Rules of Practice and Procedure , SOR/2011-119, s. 10. Authors Cited Black’s Law Dictionary , 10th ed., by Bryan A. Garner, ed. St-Paul, Minn.: Thomson Reuters, 2014, “cognizable”. Canada. House of Commons. Standing Committee on Aboriginal Affairs and Northern Development. Evidence , No. 12, 2nd Sess., 39th Parl., February 6, 2008, p. 2. Canada. Indian and Northern Affairs. Federal Policy for the Settlement of Native Claims . Ottawa: Indian and Northern Affairs Canada, 1993. Canada. Indian and Northern Affairs. Outstanding Business: A Native Claims Policy — Specific Claims .

Ottawa: Indian and Northern Affairs Canada, 1982. Canada. Indian and Northern Affairs. Specific Claims: Justice at Last . Ottawa: Indian and Northern Affairs Canada, 2007. Canada. Indian and Northern Affairs. The Specific Claims Policy and Process Guide . Ottawa: Indian and Northern Affairs Canada, 2009. Canada. Library of Parliament. Parliamentary Information and Research Service. Bill C-30: The Specific Claims Tribunal Act , Legislative

Summary LS-592E, by Mary C. Hurley, Law and Government Division, January 14, 2008, revised June 26, 2008. Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples , vol. 2, Restructuring the Relationship . Ottawa: The Commission, 1996. Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law . Oxford: Hart, 1997, 279. Elliott, David W. “Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the Crown” (2003), 29 Queen’s L.J. 1. Salembier, Paul, et al.

Modern First Nations Legislation Annotated , 2016 ed. Toronto: LexisNexis, 2015. Tennant, Paul. Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989 . Vancouver: University of British Columbia Press, 1990. APPEAL from a judgment of the Federal Court of Appeal (Gauthier, Ryer and Near JJ.A.), 2016 FCA 63 , 396 D.L.R. (4th) 164, 481 N.R. 75, [2016] 2 C.N.L.R. 1, [2016] F.C.J. No. 237 (QL), 2016 CarswellNat 493 (WL Can.), allowing the application for judicial review of a decision of the Specific Claims Tribunal, 2014 SCTC 3 .

Appeal allowed, Côté and Rowe JJ. dissenting in part and McLachlin C.J. and Brown J. dissenting. Clarine Ostrove and Leah Pence , for the appellant. Mark Kindrachuk , Q.C. , and Sharlene Telles-Langdon , for the respondent. Paul J. J. Cavalluzzo , Adrienne Telford and Jennifer Campbell , for the intervener the Specific Claims Tribunal. Senwung Luk , Krista Nerland and Cathy Guirguis , for the intervener the Assembly of Manitoba Chiefs. Cynthia Westaway and Darryl Korell , for the intervener the Federation of Sovereign Indigenous Nations.

Scott Robertson and Chris Albinati , for the intervener the Indigenous Bar Association in Canada. Stuart Wuttke and David C. Nahwegahbow , for the intervener the Assembly of First Nations. Rosanne Kyle , for the interveners the Union of British Columbia Indian Chiefs, the Nlaka’pamux Nation Tribal Council, the Stó:lō Nation, the Stó:lō Tribal Council and the Carrier Sekani Tribal Council. David Schulze , Benoît Amyot , Léonie Boutin and Marie-Eve Dumont , for the intervener the Assembly of First Nations of Quebec and Labrador. David M.

Robbins , Sonya Morgan and Michael Bendle , for the interveners the Cowichan Tribes, the Stz’uminus First Nation, the Penelakut Tribe and the Halalt First Nation. T he judgment of Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by Wagner J. — I. Overview [ 1 ] In the early days of British Columbia, there was a rapid influx of settlers following the gold rush up the Fraser River into the interior of the Colony. From 1860 on, some of these settlers displaced the Williams Lake Indian Band from the site of its village and surrounding lands at the foot of Williams Lake.

This appeal concerns the failure of the Sovereign of Great Britain and its colonies (“Imperial Crown”) to prevent the band’s Village Lands from being taken up by settlers. It also concerns the failure of the Imperial Crown and the Crown in right of Canada to rectify the situation over the 20 years that followed. At issue is the validity of a claim to compensation under the Specific Claims Tribunal Act , S.C. 2008, c. 22, for losses arising from these events.

[2] Parliament established the Specific Claims Tribunal with a mandate to award monetary compensation to First Nations[1] for claims arising from the Crown’s failure to honour its legal obligations to Indigenous peoples, even where delay or thepassage of time would bar an action in the courts. A just resolution of these types of claims is essential to the process of reconciliation. [3] Historical grievances that fall within one of the grounds enumerated in s. 14(1) of the Act are known as specificclaims.

The question before the Tribunal was whether the band had established valid grounds for such a claim. [4] The Tribunal examined the band’s history in the Williams Lake area and the events surrounding the reservecreation process. The band’s village and surrounding lands, the Tribunal concluded, ought to have been marked out as a reserve under theapplicable colonial legislation. The Imperial Crown was under a legal obligation to take the appropriate measures to do so.

The Tribunalconcluded that the band had a valid claim on the grounds that the responsible colonial official in the Williams Lake area had not takensuch measures. [5] The Tribunal also determined that, after British Columbia joined Confederation in 1871, federal officials had failedto take appropriate measures to address the consequences of the Imperial Crown’s earlier omissions. This, it found, was also validgrounds for a specific claim.

The Tribunal considered the eventual allotment of other reserves for the band to be a matter going to theamount of compensation, not to the existence of a breach of a legal obligation of the Crown. [6] Before the Tribunal had the opportunity to make a decision on compensation, Canada applied for judicial review ofthe Tribunal’s validity decision. The Federal Court of Appeal allowed Canada’s application and substituted its own decision dismissingthe band’s specific claim. In its view, the Crown in right of Canada had not breached a legal obligation to the band.

Further, its eventualallotment of reserve land elsewhere had cured any prior breaches by the Imperial Crown. The band appeals to this Court. [7] For the reasons that follow, I would allow the appeal and restore the Tribunal’s decision. The Tribunal reasonablyfound that both the Imperial Crown and the Crown in right of Canada had owed, and breached, fiduciary obligations to the band inrelation to the protection of its Village Lands from pre-emption and that the band’s pre-Confederation specific claim was valid under theAct. II. Background A.

The Band’s Specific Claim [8] The subject of the band’s specific claim is the site of a village at the foot of Williams Lake, within its traditionalterritory. In the band’s language, the village is called “Yucwt”. In 1883, the land was surveyed as “District Lots 71 and 72”. Those lotsinclude parts of what is now the City of Williams Lake. The Tribunal’s decision refers to the subject lands as the Village Lands. [9] When the Colony of British Columbia was established in 1858, settlers were rapidly taking up unsurveyed lands.Several Indian Chiefs counselled war in response.

Governor Douglas held meetings with the Indians in Cayoosh and Lytton and providedassurances on behalf of the Crown that the magistrates had been instructed to stake out and reserve for their benefit “all their occupiedvillage sites and cultivated fields and as much land in the vicinity of each as they could till, or was required for their support”: Letterfrom James Douglas to the Duke of Newcastle, October 9, 1860, A.R., vol. II, at p. 121. Records of the instructions issued to colonialofficials reflect this policy. [10] Governor Douglas also enacted a system of land pre-emption.

On February 14, 1859, he issued the Proclamationrelating to acquisition of Land, 1859 (reprinted in R.S.B.C. 1871, App. No. 13), which asserted Crown title to all land in the Colony ofBritish Columbia. On January 4, 1860, Douglas issued the Proclamation relating to acquisition of Land, 1860 (reprinted in R.S.B.C. 1871, App.

No. 15) (“Proclamation No. 15”),[2] Clause 1 of which provided: That from and after the date hereof, British subjects and aliens who shall take the oath of allegiance to Her Majesty and Hersuccessors, may acquire unoccupied and unreserved and unsurveyed Crown Lands in British Columbia (not being the site of an existentor proposed town, or auriferous land available for mining purposes, or an Indian Reserve or settlement, in fee simple) under thefollowing conditions . . . . [11] In accordance with colonial policy, land that was the site of an “Indian settlement” was not available for pre-emption.

Elsewhere in the Colony, lands were set apart as reserves: see, for example, Guerin v. The Queen, (SCC),[1984] 2 S.C.R. 335, at p. 379. Settlers whose pre-emptions encroached on an Indian settlement could be dispossessed withoutcompensation. This also occurred elsewhere in British Columbia. [12] The first pre-emptions were recorded in 1860, and more followed. The pre-emptions were traded among settlers,seemingly in contravention of the pre-emption legislation. Those covering Lots 71 and 72 were eventually consolidated in the hands ofWilliam Pinchbeck, the local constable.

Pinchbeck was granted fee simple title in 1885. [13] Pinchbeck had arrived in Williams Lake in 1860 with his associate, Gold Commissioner and Magistrate Philip Nind,who was the official responsible for implementing the pre-emption system in Williams Lake. The Tribunal found that Nind would haveknown of the band’s settlement even though its numbers had been diminished by a smallpox epidemic and most of its members had beendriven off the land. He would also have been aware of the colonial law and policies governing pre-emption and his role in enforcingthem.

He took no steps to identify the site of the band’s Indian settlement, to mark it out as reserved from pre-emption or to call intoquestion the pre-emptions that had already been recorded when it became apparent that they contravened the legislation. [14] British Columbia joined Confederation in 1871. Under

Article 13 of the British Columbia Terms of Union (reprintedin R.S.C. 1985, App. II, No. 10), Canada assumed responsibility for the creation of Indian reserves according to a policy “as liberal” asthe Colony’s, and the Colony agreed to convey land to Canada for that purpose.

[15] This process was carried out through the Joint Indian Reserve Commission. The Commission’s mandate was to visiteach Nation in British Columbia and determine “the number, extent, and locality” of the reserves to be allotted to it: Order-in-CouncilP.C. 1088, November 10, 1875.

In performing this mandate, commissioners were instructed to have regard “to the habits, wants andpursuits of such Nation, to the amount of territory available in the region occupied by them, and to the claims of the white settlers”:Memorandum attached to the Governor in Council’s Order approving the Joint Indian Reserve Commission, November 5, 1875. TheCommission’s work was carried out under the leadership of Gilbert Sproat between 1876 and 1880 and by Peter O’Reilly after 1880. [16] In the years following its displacement, the band resided on lands owned by the Catholic mission.

Records ofcommunications between 1878 and 1880 indicate that, without land to cultivate, the band’s members faced starvation. The band twiceconveyed the urgency of its situation to Sproat so that he would come to Williams Lake and allot reserve land to it. [17] O’Reilly came to Williams Lake in 1881 and met with then Chief William. Records indicate his acknowledgementthat it had been a mistake to permit the pre-emptions and that the government wished to remedy it. To that end, he had purchased a tractof land at the head of the lake known as the Bates Estate, which he allocated to the band as a reserve.

However, O’Reilly told the bandthat it could not interfere with the “white men’s rights”. B. The Specific Claims Tribunal and the Act [18] Draft legislation creating an independent commission with the authority to award financial compensation for thewrongful acts of the Crown, including those prior to Confederation, was first proposed in the 1960s. The bills never became law.

Overthe ensuing 50 years, the Government of Canada pursued a policy of researching, accepting and negotiating specific claims. [19] A persistent source of dissatisfaction with this process was that it was not overseen by an independent body, whichFirst Nations felt put the government in a conflict of interest: Report of the Royal Commission on Aboriginal Peoples, vol. 2,Restructuring the Relationship (1996), at pp. 427-28 and 534 (“RCAP”). [20] Following collaboration between the government and First Nations to address the shortcomings of the specificclaims process, the Specific Claims Tribunal was established in 2008. [21] The Tribunal hears claims that have previously been filed with the Minister for negotiation: s. 16(1).

The Tribunalfirst decides whether a claim is valid according to six enumerated grounds, which mirror the government’s policy on claims that will beaccepted for negotiation. The grounds relevant to the band’s specific claim are set out in s. 14 of the Act: 14

(1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, forcompensation for its losses arising from those grounds: . . . (

b) a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved forIndians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada; (

c) a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakingsthat give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation; [22] “Crown” is defined for the purposes of the Act as “Her Majesty in right of Canada”: s. 2. However, subss. (2) to (4)of s. 14 extend the meaning of “Crown” for the purpose of establishing grounds for a specific claim based on events in the formercolonies prior to Confederation. Section 14(2) at issue in this appeal reads: 14 . . . . . .

(2) For the purpose of applying paragraphs (1)(

a) to (

c) in respect of any legal obligation that was to be performed in an area withinCanada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britainand its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became — or would, apartfrom any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time ordelay, have become — the responsibility of the Crown in right of Canada. [23] The Tribunal has the power to hold its proceedings in separate phases, one to decide the validity of the specific claimand one to decide any compensation arising from it: Specific Claims Tribunal Rules of Practice and Procedure, SOR/2011-119, s. 10;Act, s. 11(1).

The rationale for bifurcating proceedings is to avoid the delay and expense of a compensation phase if it becomesunnecessary, or else to focus the scope of that phase: see Lac La Ronge Band v. Canada (Indian Affairs and Northern Development),2014 SCTC 8, at para. 197 . The Tribunal awards monetary compensation against the Crown according to the terms set out inss. 20 to 23, the provisions of which are reproduced in the Appendix.

[24] In this case, Canada sought judicial review of the Tribunal’s validity decision prior to the compensation phase. III. Questions on Appeal [25] This appeal raises the following initial question: A. What is the standard of review for a decision of the Specific Claims Tribunal? Given that I conclude that the standard of review is reasonableness, the following further questions arise.

Did the Tribunal reasonablydecide that the band had established valid grounds for a specific claim on the basis that: B. before British Columbia’s entry into Confederation, the Crown owed, and breached, a legal obligation under legislation of theColony (s. 14(1)(b))? C. after British Columbia’s entry into Confederation, the Crown owed, and breached, a fiduciary obligation arising from the Crown’sprovision or non-provision of reserve lands (s. 14(1)(c))?

D. the pre-Confederation legal obligation alleged by the band to have been breached was a legal obligation of the “Crown” withinthe extended meaning of that term (s. 14(2))? IV. Analysis A. Standard of Review [26] This appeal raises questions of statutory

interpretation, questions of fiduciary law and questions of mixed fact andlaw arising from the Tribunal’s application of the law to the facts of a specific claim. The Federal Court of Appeal applied correctnessreview to some of these questions and reasonableness review to others, and it declined to address the remainder. Before this Court, theparties agreed that the standard of review for all of these questions is reasonableness. [27] I agree that the standard of review is reasonableness. None of the points of statutory

interpretation or common lawon which the Tribunal’s decision rests falls into the categories that this Court identified in Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190, at paras. 58-61, as attracting a correctness standard. Nor does the Act provide any contextual indicators sufficient todisplace the presumption that Parliament intended the Tribunal to be accorded deference on the

interpretation of the term “legalobligation” as used in s. 14: see Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R.293, at paras. 32-34. [28] In particular, I am of the view that the Tribunal’s decision to validate the band’s claim did not depend on itsresolution of a constitutional issue as contemplated in Dunsmuir or in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC54, [2003] 2 S.C.R. 504, at para.

Article 13 of the Terms of Union forms part of the historical circumstances of the fiduciaryrelationship between the Crown and Indigenous peoples in the Province of British Columbia. However, the fiduciary obligation allegedwas not imposed or created by any particular enactment; it was a common law obligation arising from that relationship. Specificquestions pertaining to whether the circumstances of the implementation of

Article 13 gave rise to fiduciary obligations and what thoseobligations entailed do not necessarily take on the character of constitutional issues so as to be reviewable on a correctness standard. I donot consider questions about the nature of the band’s Aboriginal interest in the Village Lands, and whether that interest stood to beadversely affected by exercises of discretionary power by Crown officials, to be constitutional issues. [29] Further, and with respect for the contrary view taken by the Federal Court of Appeal to date (F.C.A. reasons, 2016FCA 63, 396 D.L.R. (4th) 164, at para. 31; Canada v.

Kitselas First Nation, 2014 FCA 150, 460 N.R. 185, at paras. 22-24; Lac LaRonge Indian Band v. Canada, 2015 FCA 154, 474 N.R. 283, at paras. 20-21), the Tribunal is entitled to deference on questions offiduciary law. I have reached this conclusion on the basis of the same considerations that inform the application of the reasonablenessstandard of review to a tribunal’s resolution of common law questions: see Nor-Man Regional Health Authority Inc. v. ManitobaAssociation of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 34 and 41.

It is most useful to address thoseconsiderations as part of that discussion, to which I now turn. [30] The Tribunal’s mandate is to decide issues of validity and compensation relating to specific claims: ss. 3 and 11. TheTribunal may determine any question of law or fact in relation to these matters: s. 13(1)(a). [31] The Tribunal’s mandate requires it to make determinations of law of two kinds. First, the Tribunal interprets itshome statute to decide whether the grounds advanced by a First Nation relate to a legal obligation of the Crown within the meaning of s.14. This statutory

interpretation exercise defines the scope of the Tribunal’s inquiry into the nature and sources of legal obligations of theCrown whose breach or non-fulfilment may give rise to a specific claim. Second, having defined the scope of the inquiry, the Tribunalderives the particular legal obligations of the Crown in issue from legislation, treaties and the common law.

The legal determinations ofthis second type fall outside of the Act. [32] In reviewing legal determinations of this second type, particularly with respect to the principles of fiduciary law inissue here, a court must pay close attention to the Tribunal’s statutory mandate. This Court explained in Nor-Man that, in their ownfields, administrative decision-makers may be entitled to “flex” common law and equitable principles and develop doctrines to respondto the distinctive nature of their tasks and the context in which they make their decisions: paras. 44-47 and 52.

The extent to which theymay reasonably do so depends on their statutory role and the breadth of their mandate or, put differently, “the scope of decision-makingpower conferred on the decision-maker by the governing legislation”: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2,[2012] 1 S.C.R. 5, at para. 18; Edmonton (City), at para. 21; see also Nor-Man, at paras. 45-47; Kovach, Re, (BC CA),[1999] 1 W.W.R. 498 (B.C.C.A.), at paras. 28-31, per Donald J.A. (dissenting), rev’d 2000 SCC 3, [2000] 1 S.C.R. 55; Alberta(Workers’ Compensation Board) v.

Alberta (Appeals Commission for Workers’ Compensation), 2013 ABCA 412, 370 D.L.R. (4th) 118,at para. 20.

[33] To resolve the historical grievances of First Nations against the Crown, Parliament created an independent tribunalcomprised of superior court judges: s. 6(2). Parliament designed the Tribunal to adjudicate specific claims “in accordance with law and ina just and timely manner”: Act,

preamble. The Tribunal’s mandate expressly tethers the scope of its decision-making power to theapplicable legal principles. [34] The range of reasonable outcomes available to the Tribunal is therefore constrained by these principles as they areunderstood and applied by the courts. But since the Tribunal adjudicates historical claims, it also applies evolving judicial doctrines tohistorical circumstances that, by virtue of the applicable limitation periods, other judges will rarely consider: see Canada (AttorneyGeneral) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 13; Wewaykum Indian Band v.

Canada, 2002 SCC 79, [2002] 4S.C.R. 245, at para. 121. The application of these doctrines requires a measure of flexibility and adaptation to map onto historical claims. [35] Parliament intended the Tribunal to perform this “distinctive task”: Act,

preamble. In my view, it did not intend todeprive the Tribunal of the basic flexibility inherent in the common law: R. v. Salituro, (SCC), [1991] 3 S.C.R. 654, atp. 670; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 40. Instead, it gave the Tribunal the opportunity at first instance toresolve legal issues arising from the application of legal principles and doctrines to the kinds of historical claims it is particularly suitedto adjudicate.

The Tribunal is therefore entitled to deference in its analysis of such questions. [36] To accord this deference, a reviewing court must “stay close to the reasons given by the [T]ribunal” and pay them“respectful attention”: Law Society of New Brunswick v.

Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 49; Dunsmuir, at para. 48.The Tribunal’s reasons provide the basis for determining why it reached the decision it did and whether that decision is within the rangeof outcomes “defensible in respect of the facts and law”: Dunsmuir, at para. 47; Newfoundland and Labrador Nurses’ Union v.Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 14-16; Agraira v. Canada (Public Safetyand Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 89-90; Leahy v.

Canada (Citizenship and Immigration),2012 FCA 227, [2014] 1 F.C.R. 766, at paras. 121-22. The reviewing court must start from the Tribunal’s decision and ask whether it isjustified based on the authorities. Other decisions of the Tribunal may also inform the reasonableness analysis: Alberta (Information andPrivacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 (“A.T.A.”), at para. 56; see alsoCommunications, Energy and Paperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R.458, at paras. 6 (Abella J.) and 75 (Rothstein and Moldaver JJ., dissenting). [37] The Tribunal’s manner of explaining itself may strike a reviewing court as conclusory. Many of the propositions thatmake up its analysis, and that come under scrutiny on judicial review, could have been the subject of a lengthy analysis on their ownwith reference to the basic principles that govern the Crown-Aboriginal fiduciary relationship.

However, to fulfil the timeliness aspect ofits mandate, the Tribunal must be able to rely on reviewing courts to endeavour to make sense of its reasons by looking to the authoritieson which it relied, the submissions of the parties to which it responded and the materials before it: Newfoundland Nurses, at paras. 17-18.Failure by reviewing courts to do so risks defeating the purpose of delegating the resolution of long standing grievances to a highlyspecialized group of superior court judges specifically tasked with resolving them efficiently. [38] Finally, although specific legal questions may arise, questions about the existence and breach of a fiduciary duty —the latter requiring an assessment of what the applicable duties required of the fiduciary in the circumstances — are questions of mixedfact and law: Shafron v.

KRG Insurance Brokers (Western) Inc., 2009 SCC 6, [2009] 1 S.C.R. 157, at para. 13; Galambos v. Perez, 2009SCC 48, [2009] 3 S.C.R. 247, at para. 49; Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377, at pp. 425-26. TheTribunal will continue to develop expertise in the application of fiduciary law in the historical contexts at issue in specific claims andfamiliarity with the large and specialized evidentiary records involved, which may include oral history, archival materials,anthropological and historical studies and archaeological reports: Act, s. 13(1)(b).

In light of these considerations, a reviewing courtshould exercise particular caution before interfering with a decision of the Tribunal on the basis that the facts as it has found them cannotreasonably support its conclusions about the existence and content of a fiduciary obligation: Dunsmuir, at para. 54. B.

Breach of a Legal Obligation of the Crown Under Colonial Legislation Prior to British Columbia’s Entry Into Confederation(Section 14(1)(b)) [39] For two independent reasons, the Tribunal concluded that Nind’s failure to take any measures to reserve the VillageLands from pre-emption amounted to “a breach of a legal obligation of the Crown under . . . other legislation — pertaining to Indians orlands reserved for Indians”: s. 14(1)(b).

The Tribunal found that Nind’s inaction was both a breach of a fiduciary obligation arisingunder Proclamation No. 15 and a breach of its express provisions. [40] These conclusions depended in part on the Tribunal’s

interpretation of s. 14(1)(b), which is not in dispute. TheTribunal found that “legislation — pertaining to Indians or lands reserved for Indians” included Proclamation No. 15 and that a “legalobligation . . . under . . . legislation” may include a fiduciary obligation that arises when legislation confers discretion in relation toacknowledged interests in land. The Tribunal’s conclusions also depended on its

interpretation of the extended meaning of “Crown” in s.14(2), which is in dispute. [41] The Tribunal’s decision that the band had established a valid claim on the grounds of the Imperial Crown’s breachof a fiduciary obligation was based on two related findings. First, the Tribunal found that the Imperial Crown came within the extendedmeaning of “Crown” for the purposes of that obligation. This finding was based on the Tribunal’s

interpretation of s. 14(2), to which Iwill return after reviewing its application of fiduciary law to the circumstances in the Williams Lake area before and after BritishColumbia’s entry into Confederation. Second, the Tribunal found that the Imperial Crown owed and breached a fiduciary obligation.This involved considering the legal requirements for the existence of a fiduciary obligation and deciding whether they were satisfied inthis case. [42] In my view, the Tribunal’s resolution of these issues was reasonable, and I would restore its decision to validate theband’s claim under s. 14(1)(

b) based on breach of a fiduciary obligation arising under Proclamation No. 15. It is therefore unnecessaryfor me to consider the Tribunal’s analysis of the breach of Proclamation No. 15 itself. To explain why, I begin with the applicableframework for identifying and defining the fiduciary obligations of the Crown. For the most part, the Tribunal set out the relevant points

of law in the course of its s. 14(1)(

b) analysis, but they apply to its decision in relation to both of the grounds on which it validated theband’s claim.

(1) Framework for Determining Whether the Crown Owed, and Breached, a Fiduciary Obligation [43] The relationship between the Crown and Indigenous peoples is fiduciary in nature, and this was so even prior toConfederation. In the Tribunal’s view, it is the fiduciary relationship grounded in the assertion of Crown sovereignty in BritishColumbia, rather than any particular enactment, that was the source of the fiduciary obligations at issue in this case: Tribunal Reasons,2014 SCTC 3 (“T.R.”), at paras. 173, 176 and 183-86 ; see also Wewaykum, at paras. 78-79, citing R. v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075, at p. 1108. Since Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3S.C.R. 511, and Manitoba Metis Federation Inc. v.

Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, the relationship fromwhich these obligations derived — both before and after British Columbia joined Confederation (see T.R., at paras. 268-69) — has beenlinked with the honour of the Crown: T.R., at paras. 178-80. [44] A fiduciary obligation may arise from the relationship between the Crown and Indigenous peoples in two ways.First, it may arise from the Crown’s discretionary control over a specific or cognizable Aboriginal interest: Manitoba Metis Federation,at paras. 49 and 51; Wewaykum, at paras. 79-83; Haida Nation, at para. 18; T.R., at para. 180-81.

Because this obligation is specific tothe relationship between the Crown and Indigenous peoples, it has been characterized as a “sui generis” fiduciary obligation: Wewaykum,at para. 78; Guerin, at p. 385; Sparrow, at p. 1108. Second, a fiduciary obligation may arise where the general conditions for a privatelaw ad hoc fiduciary relationship are satisfied — that is, where the Crown has undertaken to exercise its discretionary control over a legalor substantial practical interest in the best interests of the alleged beneficiary: Manitoba Metis Federation, at para. 50; Alberta v.

ElderAdvocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36; T.R., at paras. 182 and 217. [45] I find that the Tribunal’s analysis of the Crown’s sui generis fiduciary obligation is a sufficient basis on which torestore its decision to validate the band’s specific claim. As a result, I need not comment on its application of an ad hoc fiduciary duty tothe conduct of Crown officials under either s. 14(1)(

b) or (c). [46] A fiduciary obligation requires that the Crown’s discretionary control be exercised in accordance with the standardof conduct to which equity holds a fiduciary (Guerin, at p. 384; Wewaykum, at para. 80). This is embodied, for example, in the fiduciaryduties of loyalty, good faith and full disclosure. The standard of care to which a fiduciary is held in its pursuit of the beneficiary’sinterests is “that of a man of ordinary prudence in managing his own affairs”: Blueberry River Indian Band v.

Canada (Department ofIndian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344, at para. 104 (McLachlin J., as she then was),citing Fales v.

Canada Permanent Trust Co., (SCC), [1977] 2 S.C.R. 302, at p. 315; Wewaykum, at para. 94. [47] As Binnie J. explained in Wewaykum (at para. 79), “[t]he fiduciary duty, where it exists, is called into existence tofacilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples.”However, a fiduciary obligation exists only in relation to the specific interest at stake: The appellants seemed at times to invoke the “fiduciary duty” as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship.

This overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation tospecific Indian interests. In this case we are dealing with land, which has generally played a central role in aboriginal economies andcultures.

Land was also the subject matter of Ross River (“the lands occupied by the Band”), Blueberry River and Guerin (disposition ofexisting reserves). (Wewaykum, at para. 81; see also paras. 80-85; Manitoba Metis Federation, at paras. 48-51; T.R., at paras. 176-77 and 181.) The conduct of the fiduciary that comes under scrutiny is its exercise of discretionary control over the specific or cognizable Aboriginalinterest in respect of which the fiduciary obligation is owed: Ross River Dena Council Band v.

Canada, 2002 SCC 54, [2002] 2 S.C.R.816, at paras. 68 and 77; Wewaykum, at paras. 90 and 93; Guerin, at p. 382. [48] The Crown fulfils its fiduciary obligation by meeting the prescribed standard of conduct, not by delivering aparticular result: see Guerin, at p. 385 and 388-89; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, atpara. 57. The extent of the loss, if any, flowing from a breach of fiduciary duty engages questions of causation.

Equity addresses suchquestions under the heading of remedy or damages once the existence and breach of a fiduciary obligation have been established: Guerin,at pp. 357 (Wilson J.) and 390-91 (Dickson J.); Canson Enterprises Ltd. v. Boughton & Co., (SCC), [1991] 3 S.C.R.534; Hodgkinson, at pp. 440-41; Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744, 87 O.R. (3d) 321, atparas. 48 and 58. Correspondingly, the Act assigns matters of causation and apportionment of fault to the compensation phase.

Itprovides that compensation is to be awarded against the Crown in right of Canada only to the extent that the breach by the Crown inissue — as opposed to the acts and omissions of third parties — caused the loss: Act, s. 20(1)(i); Kitselas (F.C.A.), at paras. 63-67. [49] A breach of fiduciary obligation can be found even where the beneficiary has not proven that the breach resulted in acompensable loss, or has not suffered a loss at all: Keech v. Sandford (1726), Sel. Cas. T. King 61, 25 E.R. 223; Lac La Ronge Band(S.C.T.), at para. 197.

By the same token, the fact that the Crown eventually procured a reserve for the band in the Williams Lake areacannot — as Canada argued, and as the Federal Court of Appeal accepted (at para. 109) — undo the earlier breach of fiduciary duty,although it may reduce the loss that can be said to have flowed from it. Here, too, the Act recognizes the distinction between finding abreach of fiduciary obligation and remedying the consequences of that breach.

It does so by directing the Tribunal to deduct from theamount of compensation the value of any benefit received by the claimant in relation to the subject matter of the specific claim: s. 20(3). [50] The Tribunal has therefore considered the principles governing equitable compensation for loss flowing from abreach of fiduciary duty during the compensation phase of its proceedings: see, for example, Popkum First Nation v. Canada (IndianAffairs and Northern Development), 2016 SCTC 12; Huu-Ay-Aht First Nations v. Canada (Indian Affairs and Northern Development),2016 SCTC 14.

In the instant case, it signalled its intention to consider the provision of the Bates Estate as part of that analysis: T.R., at

para. 343. [51] At the validity stage, the relevant question — and the one the Tribunal asked — is whether “the Crown [has] act[ed]with reference to the Aboriginal group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake”:Haida Nation, at para. 18 (emphasis added).

The need to focus on the particular interest that is vulnerable to the fiduciary’s discretionarycontrol is a reflection of the general principle of fiduciary law that “not all obligations existing between the parties to a fiduciaryrelationship are themselves fiduciary in nature”: Wewaykum, at para. 83; T.R., at para. 177. [52] The specific or cognizable Aboriginal interest at stake must be identified with care.

The fiduciary’s obligation isowed in relation to that interest, and its content will depend on “the nature and importance of the interest sought to be protected”:Manitoba Metis Federation, at para. 49; Wewaykum, at para. 86. If there is no Aboriginal interest sufficiently independent of theCrown’s executive and legislative functions to give rise to “responsibility ‘in the nature of a private law duty’”, then no fiduciary dutiesarise — only public law duties: see Wewaykum, at paras. 74 and 85; Guerin, at p. 385; see also D. W.

Elliott, “Much Ado About Dittos:Wewaykum and the Fiduciary Obligation of the Crown” (2003), 29 Queen’s L.J. 1. [53] Interests in reserve land (Guerin) and rights under s. 35 of the Constitution Act, 1982 (Sparrow) satisfy therequirement of an “independent legal interest”: Guerin, at p. 385. In Manitoba Metis Federation, on which the Tribunal relied, it wasfound that the children’s grant in s. 31 of the Manitoba Act, 1870, S.C. 1870, c. 3, fell short of establishing a specific or cognizableAboriginal interest capable of grounding a sui generis fiduciary duty.

It fell short because it was not held by the Métis as a collective: . . . [the claimants did] not establish that the Métis held either Aboriginal title or some other Aboriginal interest in specific lands as agroup. An Aboriginal interest in land giving rise to a fiduciary duty cannot be established by treaty, or, by extension, legislation. Rather,it is predicated on historic use and occupation. As Dickson J. stated in Guerin: The “political trust” cases concerned essentially the distribution of public funds or other property held by the government.

In each casethe party claiming to be beneficiary under a trust depended entirely on statute, ordinance or treaty as the basis for its claim to an interestin the funds in question. The situation of the Indians is entirely different.

Their interest in their lands is a pre-existing legal right notcreated by Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive or legislative provision. [Emphasis added; p.379.] (Manitoba Metis Federation, at para. 58 (emphasis added); see also Elder Advocates, at paras. 51-52.) [54] Where the alleged interest is in land subject to the reserve creation process, the process need not have been finalizedfor the interest to be “cognizable”: Ross River, at paras. 68 and 77; Wewaykum, at paras. 88-90; T.R., at para. 189.

The Tribunal alsoexplained that an interest in land asserted on the basis of use and occupation does not have to be an Aboriginal title: T.R., at para. 239;see also Wewaykum, at paras. 77, 91 and 95; Guerin, at p. 379; Manitoba Metis Federation, at para. 53. [55] The circumstances in which a fiduciary obligation arises shape its content: Wewaykum, at para. 92; Ermineskin, atpara. 72, quoting McInerney v. MacDonald, (SCC), [1992] 2 S.C.R. 138, at p. 149. The content of the Crown’s suigeneris fiduciary duty varies to take into account its broader public obligations: Wewaykum, at para. 96; Haida Nation, at para. 18.

Priorto the acquisition of a “legal interest” in land that is subject to the reserve creation process, the Crown’s sui generis fiduciary duty is “toact with respect to the interest of the aboriginal peoples with loyalty, good faith, full disclosure appropriate to the subject matter and with‘ordinary’ diligence in what it reasonably regard[s] as the best interest of the beneficiaries”: Wewaykum, at para. 97; T.R., at paras. 224and 319.

In such circumstances, though, the Crown’s fiduciary duty is limited by its obligation to “have regard to the interest of allaffected parties” and to be even-handed among competing beneficiaries: Wewaykum, at paras. 96-97; T.R., at para. 233.

Fulfilling thisflexible equitable obligation entails consideration of the nature and importance of the beneficiary’s interest and competing interests;although the Crown cannot ignore the reality of conflicting demands, neither does the existence of such demands absolve it altogether ofits fiduciary duty in its efforts to reconcile them fairly: Wewaykum, at paras. 96-97 and 103-4; Osoyoos Indian Band v. Oliver (Town),2001 SCC 85, [2001] 3 S.C.R. 746, at para. 53; T.R., at para. 339. [56] Working within this framework for the purposes of both s. 14(1)(

b) and s. 14(1)(c) (at paras. 268-69 and 315), theTribunal found that, before and after Confederation, the Crown owed the band a sui generis fiduciary obligation of the type recognizedby this Court in Wewaykum in relation to the band’s interest in the Village Lands.

(2) The Crown’s Fiduciary Obligation Before British Columbia’s Entry Into Confederation and the Breach of That ObligationUnder Section 14(1)(b) [57] The Tribunal found that the duty of ordinary prudence described in Wewaykum required, at a minimum, that Nindtake steps to inquire into the extent of the band’s settlement so that it could be protected, as he had been specifically instructed to do.That Nind did not take even these most basic steps put the Crown in breach of the sui generis fiduciary obligation it owed to the band inrelation to the Village Lands: T.R., at paras. 234-35. [58] It is not in dispute that, if the Crown owed the band a sui generis fiduciary obligation in relation to the VillageLands, it was in breach of that obligation.

The question is whether, prior to British Columbia’s entry into Confederation, such anobligation arose at all. Canada argues that the Tribunal misapprehended the applicable legal principles. It impugns the Tribunal’sfindings on both of the requirements that underpin a sui generis fiduciary obligation: whether there was a specific or cognizableAboriginal interest; and whether, in relation to that interest, the Crown assumed discretionary control sufficient to ground a fiduciaryobligation. [59] With regard to discretionary control, Canada argues that it was unreasonable for the Tribunal to find a sui generis

fiduciary obligation for two reasons. First, the Crown’s degree of control fell short of the exclusive, trust-like arrangement at issue inGuerin. Second, the band was not deprived of the power to protect its own interest using the dispute resolution process contemplated inProclamation No. 15. [60] I disagree.

First, it was open to the Tribunal to look, not to the particular form or extent of the Crown’s discretionarypower to affect the beneficiary’s interest, but to the vulnerability of that interest to “the risks of [the alleged fiduciary’s] misconduct orineptitude”: Wewaykum, at para. 80, cited in T.R., at para. 176; see also Galambos, at paras. 68-70 and 83-84; Hodgkinson, at p. 406;Frame v. Smith, (SCC), [1987] 2 S.C.R. 99, at p. 137, per Wilson J. (dissenting). Second, the Tribunal’s position isconsistent with La Forest J.’s observation

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