A three-day hearing of the Specific Claims Tribunal wrapped up on Thursday in Anacla.
The hearing was concerning a claim from Huu-ay-aht First Nations regarding the value of the compensation Canada owes Huu-ay-aht as a result of the way timber on former Numukamis IR1 that was sold to MacMillan Bloedel in the 1940s. The first phase of this hearing occurred in Anacla in November 2013 and a decision in 2014 found the Crown had breached its duties to HFN. The Crown and Huu-ay-aht’s counsel presented their final arguments in the second phase of the hearing before Justice Whalen on April 19, 20, and 21.
The Specific Claims Tribunal is a judicial body, like a court, that hears claims by First Nations against Canada regarding past wrongs, when no resolution to the claim has been reached through negotiations.
The HFN IR1 Timber Claim relates to logging that took place on IR1 between 1948 and 1969. In 2014, the Tribunal found that Canada had breached its fiduciary obligations in relation to the way the timber was sold. As a result, Canada owes Huu-ay-aht approximately $280,000 in 1940s/50s dollars (less the money received for the timber by Huu-ay-aht). This hearing deals with the present day value of the compensation owed to Huu-ay-aht.
The discussion over the three days focused on the difference between how the two sides calculated the compensation. The Crown argued that Canada owes Huu-ay-aht approximately $2.9 million. Huu-ay-aht’s counsel argued that the Nation is entitled to approximately $14.5 million.
The major difference between these two numbers is the value of compensation for the money Huu-ay-aht would have spent if it had received it. Initially, Canada argued that HFN should receive no compensation for the money it would have spent. Huu-ay-aht’s counsel argued that this is wrong at law – not only did the money owed to the Nation in 1948 need to be returned to Huu-ay-aht in 2016 dollars, but the loss that resulted from the inability to spend and obtain benefits for the money needed to be compensated for. On the second day of the hearing, Canada conceded that Huu-ay-aht should receive some compensation for the money that would have been spent, but the parties remained far apart in terms of what compensation is appropriate.
Huu-ay-aht’s counsel also pointed out flaws in the Canada’s expert opinion, arguing that it did not reflect how Huu-ay-aht’s historical spending patterns would likely have changed if they had received the money. They also drew attention to the fact that Canada held control over First Nations spending under the Indian Act and that the economic model used by Canada hurt poor First Nations and helped rich ones.
From these facts, Huu-ay-aht’s counsel concluded that Canada must take into consideration the impact not having the funds had on the poor Nations. This must include the long-term benefits that Huu-ay-aht would have received if they had the monies that were owed to them starting in 1948. Counsel indicated that consumption must be considered, along with the losses Huu-ay-aht suffered in investment and savings opportunities. As a result, Huu-ay-aht should be awarded $14.5 million.
Huu-ay-aht’s counsel concluded that Canada took advantage of a poor First Nations community when it accepted such a low payment for the timber rights to their land, and that wrong should be reversed fairly and equitably. They pointed out that Canada is trying to minimize the funds Huu-ay-aht would have received, and therefore continue to penalize a poor community.
At the conclusion of the hearing, Justice Whalen thanked both sides for their presentations and pointed out that he was impressed with how well they knew their cases. He said the decision before him would be a difficult one, and one he was not willing to rush.
Justice Whalen thanked Huu-ay-aht for allowing them on their traditional territory and for the warm welcome and generous accommodations. He said Huu-ay-ahts do indeed live in an extraordinary place. He expressed his confidence in the future that Huu-ay-aht is building and predicted exciting times ahead for the Nation. He wished the Nation the best of good fortunes.
The hearing was wrapped up by a blessing from Wišqii on behalf of Tayii Ḥaw̓ił ƛiišin. He thanked everyone present for their hard work, and stressed that Huu-ay-aht is rooted to its land and will never leave, therefore the decision before Justice Whalen is an important one for his Nation.