First Nation filed claim under Specific Claims Tribunal Act alleging Canada breached its fiduciary duty by excluding certain land from Reserve in 1886 and failing to enforce 1915 order allocating additional land to Reserve. Tribunal ruled that it could consult historical treatises that were not in record to gain historical context, despite objection from Canada. Tribunal found beach of Act. Canada applied for judicial review of Tribunal’s decisions. Applications granted. Given adjudicative nature of decision, court-like process prescribed by Specific Claims Tribunal Rules of Practice and Procedure, absence of statutory right of appeal, and importance of decision to parties, parties were entitled to meaningful opportunity to present their cases fully and fairly. Tribunal found gap in evidence with respect to two central issues and failed to identify that gap to parties. Instead, Tribunal referred to three academic texts and 1927 Report of Joint Special Committee without particularizing facts it proposed to take notice of or issues those facts related to. Canada did not know facts and information it was required to respond to, and was denied meaningful opportunity to adduce evidence and make responsive submissions.
Canada v. Akisq’nuk First Nation (2017), 2017 CarswellNat 4258, 2017 FCA 175, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.).