Completed Inquiries – Reports Released
01/06/2006
Taku River Tlingit First Nation [Wenah Specific Claim Inquiry] – March 2006
In August 2002, the Commission accepted the Taku River Tlingit First Nation’s request for an inquiry into its rejected claim involving the failure of the federal Crown to carry out its legal obligations with respect to the First Nation and the Wenah village site. In November 2002, Canada took the position that the claim fell outside of the Specific Claims Policy and refused to participate. The inquiry proceeded without funding for the First Nation from Canada. A community session was held in May 2004, and oral arguments were heard in August 2004. The inquiry focussed on the Indian Agent’s actions prior to, during, and following the McKenna-McBride Commission hearings. The First Nation argued that pre-reserve–creation fiduciary duties were breached by the Indian Agent during the McKenna-McBride Commission hearings when the Indian Agent failed to have the Wenah village site set aside for the Taku. The Wenah village site, on the shore of Atlin Lake, had been continuously used and occupied by the Taku. In its findings, the Commission concluded that the Taku River Tlingit claim is a specific claim, and that Canada’s participation in this inquiry would have been warranted. As well, the Commission found that the Taku had a specific interest in the Wenah village site. Because Canada undertook to act on behalf of the Taku people in the reserve-creation process, Canada owed the First Nation a fiduciary duty to act, in the words of Wewayakum, with "loyalty, good faith in the discharge of its mandate, providing full disclosure appropriate to the subject matter, and acting with ordinary prudence with a view to the best interest of the aboriginal beneficiaries." More specifically, the Commission found that Indian Agent W. Scott Simpson failed to fulfill his mandate to protect the Indians and advise them properly by failing to properly prepare the Taku River Tlingit First Nation to meet the Commission, and failing to represent its interests at the hearings in Atlin and in Victoria. Implicit in these failures is a breach of fiduciary duty. Indian Commissioner W.E. Ditchburn and Indian Agent Harper Reed, in 1928, could have pursued remedies for the First Nation through provincial legislation, but failed to do so. Instead, the issue was placed in abeyance. This failure constituted a continuance of the initial breach of not setting aside the Wenah village site in Atlin for the Taku River Tlingit. By 1962, the First Nation was given only one option to acquire part of its village lands: to trade part of its reserve at McDonald Lake for the lots in the village in Atlin. The Commission found that the surrender of land at McDonald Lake was valid; however, this surrender was found to be a direct result of the initial breach of the Crown’s duty. The basis for the surrender was part of the Crown’s original breach of its basic fiduciary duties. In March 2006, the Commission published its report in which the panel recommended that the government accept this claim for negotiation. To download the news release To download the report - PDF 
|
