Backgrounder

The Blueberry River and Doig River First Nations are successors to the Fort St. John Indian Band, (also known as the Beaver Band of Fort St. John), which was disbanded in 1977. The St. John Indian Reserve (IR 172) was originally an area of 18,168 acres, located six miles north of the town of Fort St. John in the Peace River region of northeastern British Columbia. The reserve was used as a summer campground and Band members traditionally made their living by hunting and trapping.

On June 21, 1899, the Fort St. John Indian Band was given notice to meet with the Commissioners for Treaty 8. However, the treaty commissioners were delayed and, although they sent a message asking that the Band remain to meet with them, the meeting never took place since the Band members had already left the area. On September 22, 1899, Treaty 8 was concluded and the Fort St. John Indian Band adhered to treaty on May 30, 1900.

The land selected by the Band for its reserve was within an area known as the Peace River Block. When British Columbia entered Confederation, the Indian reserves within the block were transferred to Canada. The last land transaction in 1930 confirmed the transfer of the Indian reserves to Canada, with the province retaining the authority to expropriate reserve land for public purposes, including a highway right of way.

In the 1920’s, settlers near the town of Fort St. John began requesting that a road be built through IR 172 to the Alberta border. At the time, the Assistant Deputy and Secretary of the Department of Indian Affairs stated that the construction of such a road would have to be done in accordance with the Indian Act and through the Department of Indian Affairs, which would then authorize the province to construct the road.

Canada agreed to consider the construction of the road on the condition that British Columbia compensate the Band by fencing the road in return for the right of way. At the time, the Assistant Indian Commissioner for B.C. stated that he considered the construction of the road to be a benefit to the Indians since it would increase the value of the property, but felt the Department was not obliged to provide fencing under the Highway Act.

On September 28, 1934, Canada gave the province permission to build a road through IR 172, concluding that “the benefit of having the road constructed (was) sufficient compensation for the land required” from the Band. British Columbia was granted expropriation rights to 32.11 acres of land and the right of way was transferred to the province, without compensation, by Order in Council PC 2631, on October 26, 1934. According to the First Nations, neither the Band nor its Indian Agent was consulted about the construction of the road.

In February 1995, the Treaty 8 Tribal Association submitted a specific claim to the Government of Canada regarding the expropriation for the provincial highway right of way, on behalf of the Blueberry River and Doig River First Nations. The First Nations claimed that the Band had not been compensated when the lands were given to the
province by the Crown. Eight years later, they Tribal Association asked the Indian Claims Commission (ICC) to conduct an inquiry into the claim since the claim had neither been accepted nor rejected by the Minister.

On November 5, 2003, the ICC accepted the claim for inquiry on the basis that, owing to the passage of time, it had been constructively rejected. Canada provided no documentation and notified the Commission that the First Nations’ participation in the inquiry would not be funded, since Canada did not consider the claim to be rejected. The inquiry did not progress to the point of the parties agreeing on a joint statement of issues.

On September 8, 2004, Canada accepted the claim for negotiation, recognizing that a lawful obligation was owed to the First Nations. Accordingly, the Commission issued a declaration on May 31, 2005, concluding the inquiry.

There have been other proceedings between the First Nations and the Crown regarding IR 172. In 1940, the Fort St. John Indian Band surrendered its petroleum, natural gas and mining rights for lease, and surrendered IR 172 in its entirety for lease in 1945. Oil and gas were discovered within the boundaries of the surrendered reserve in 1976. The Department of Indian Affairs notified the Band in 1977 that they had lost the right to the natural resources on the former reserve.

In September 1978, the First Nations filed an action against the Department of Indian Affairs regarding the surrender of the reserve and transfer of mineral rights. The resulting Supreme Court judgment, commonly known as Apsassin, has become one of the leading cases on the nature of the Crown’s pre-surrender fiduciary duty.

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