[1] The Claimant, the Ahousaht First Nation (the Ahousaht), alleges that Canada breached its fiduciary duty by failing to protect their interests with respect to requests for reserve land. The Ahousaht First Nation is located in the Clayoquot Sound area on the west coast of Vancouver Island. The Ahousaht includes their predecessor nations, the Kelsemaht, Manhousaht and Quatswiaht, which amalgamated with the Ahousaht in 1951. For simplicity, I generally refer to all four as the Ahousaht.

[2] The Respondent is His Majesty the King in right of Canada (the Crown or Canada). The Respondent is represented by the Minister of Crown-Indigenous Relations, previously known as the Minister of Indian Affairs and Northern Development Canada (the Minister).

[3] Before the Tribunal, the Ahousaht originally claimed nine parcels of land, including settlements and fishing stations, which they argue should have been included as their reserve land.

[4] Canada admits validity to the following six claimed sites:

[5] I commend Canada for doing so.

[6] Canada does not admit a breach of any statutory or fiduciary duties with respect to three remaining claimed sites:

[7] The above three sites are the subject matter of these Reasons. The Specific Claims Tribunal Act, SC 2008, c 22 [SCTA] is the statutory basis of the Claim before me. The Ahousaht base their Claim on paragraphs 14(1)(b) and (c) of the SCTA:

[8] Indigenous peoples have a sui generis or unique relationship with the land. Land has played a central role in Indigenous economies and cultures (Wewaykum Indian Band v Canada, 2002 SCC 79 at para. 80, [2002] 4 SCR 245 [Wewaykum]). In Southwind v Canada, 2021 SCC 28 at para. 63, 459 DLR (4th) 1, Karakatsanis J. eloquently makes this point:

[9] The Ahousaht allege that Canada breached its fiduciary and statutory obligations in relation to reserve creation. The Ahousaht seek a ruling that Canada did so by failing to protect their interests in land they sought to have protected as reserve land in the British Columbia reserve creation process. The Ahousaht also seek compensation for land they say was illegally pre-empted by a settler and should have been set aside as a reserve.

[10] At material times, the Ahousaht requested reserve land at locations where they say they had settlements and where they hunted, fished and gathered foods such as clams and berries.

[11] For both the northwest Vargas Island (Freeman Hopkins pre-emption) site and the additions to Quortsowe IR 13, the Claimant requested reserve land in 1914 from the Royal Commission on Indian Affairs for British Columbia, also known as the McKenna-McBride Commission (the Commission). For the Pretty Girl Cove and the Quortsowe IR 13 sites, the Claimant requested reserve land from the Ditchburn-Clark Review Committee (Ditchburn-Clark Review) process in 1922.

[12] With respect to the remaining three claimed sites, I must determine whether Canada had a fiduciary obligation to the Ahousaht and, if so, whether Canada breached this obligation (Further Amended Declaration of Claim filed on June 16, 2020, at para. 54). The facts and context of each claimed site will inform the nature and scope of the duties, if any, owed by the Crown to the Ahousaht.

[13] The term “Indian” is now considered pejorative. It is used in these Reasons when referring to the Indian Act, and to historical legislation such as the Land Act in which the term “Indian” was used. My use of the term “Indian” is not an endorsement of the term.

[14] The Claim before me involves requests by the Ahousaht for reserve land. On November 2, 2011, the Ahousaht First Nation submitted a specific claim to the Minister under Canada’s Specific Claims Policy. The Ahousaht allege that Canada breached its fiduciary obligations by failing to provide reserve land at the following locations: Blunden Island, Vargas Island (southerly point), northwest Vargas Island (Freeman Hopkins pre-emption), Flores Island (Kut-Coast Point), the head of Warn Bay on Bear River, Bare Island, and Pretty Girl Cove on Sydney Inlet.

[15] On December 30, 2014, the Minister notified the Ahousaht in writing that their specific claim had not been accepted for negotiation.

[16] On August 16, 2017, the Ahousaht filed a Declaration of Claim with the Tribunal; Canada filed its Response on October 17, 2017. The conditions precedent set out in subsection 16(1) of the SCTA have been fulfilled: the Claim was previously filed with the Minister and the Minister notified the Ahousaht in writing of Canada’s decision not to negotiate the claim in whole or in part.

[17] On March 15, 2018, a Notice pursuant to section 22 of the SCTA was sent to the Province of British Columbia (the Province). The Province advised that it would not be appearing in this matter.

[18] On January 16, 2019, the Ahousaht amended their Declaration of Claim by removing the claimed site at the head of Warn Bay on Bear River. Instead, they described this part of the Claim as two sites: additions to Quortsowe IR 13 and to Oinimitis IR 14. Canada consented to these amendments.

[19] On June 16, 2020, the Ahousaht filed a Further Amended Declaration of Claim to add a site claimed at Shelter Inlet, formerly known as Shelter Arm. Canada consented to this amendment. On July 15, 2020, Canada filed its Amended Response in response to the Claimant’s Further Amended Declaration of Claim. Canada denied any breaches of statutory or fiduciary duties to the Ahousaht.

[20] Following these amendments, the Ahousaht’s Claim included the following nine parcels of land: Blunden Island, Vargas Island (southerly point), northwest Vargas Island (Freeman Hopkins pre-emption), Flores Island (Kut-Coast Point), Bare Island, Pretty Girl Cove, additions to Quortsowe IR 13, addition to Oinimitis IR 14, and Shelter Inlet.

[21] Between April 30 and May 3, 2019, an in-person oral history evidence hearing was held at Ahousaht. The following individuals testified on behalf of the Ahousaht: Lewis Johnny George (Maquinna); David Maurice Frank; Louie Joseph; Harvey Robinson; Percy Campbell; Angus Campbell; Louie Matthew Frank; Harold Little; John Hudson Webster (Nasamis); Edwin Frank; George Thomas Frank (Matua); and Arlene (Ruth) Paul.

[22] Between October 7 and 8, 2020, the continuation of the oral history evidence hearing was conducted by videoconference. The following individuals testified on behalf of the Ahousaht: James Swan Jr. and Harvey Robinson. The Tribunal also heard evidence from Aaron Blake Evans, a witness for the Claimant.

[23] On August 4, 2021, the conclusion of the oral history evidence hearing was conducted by videoconference. David Jacobson testified on behalf of the Claimant.

[24] On May 9, 2022, the Tribunal heard the expert evidence of Canada by videoconference. Adrian Clark, an historian, testified. Typically, only audio recordings are available for Tribunal hearings held virtually; however, this hearing was also videorecorded.

[25] On May 31, 2022, upon the request of the Parties, the Tribunal issued a bifurcation order for the Claim to proceed in two separate stages in order to deal with issues of validity and compensation, respectively. As a result, these Reasons address only the validity of the Claim. If validity is established, compensation will be negotiated between the Parties or, if necessary, compensation will be the subject of a separate hearing before the Tribunal. The Ahousaht has confirmed that they do not seek compensation in excess of $150 million for the purposes of the Claim.

[26] All the hearings listed above included an audio recording and a transcript.

[27] A site visit to Pretty Girl Cove, northwest Vargas Island and Warn Bay (site of Quortsowe IR 13) occurred on July 12, 2022. On July 13, 2022, oral submissions were heard in person in Tofino, British Columbia.

[28] Grist J. originally had conduct of this Claim. As oral submissions were not heard until July 2022, he indicated he would be unable to issue a decision prior to the last day of his term on September 5, 2022. At the June 20, 2022, Case Management Conference, Grist J asked the Parties if they were content to have the Claim completed by myself given his imminent end of term. The Parties confirmed that they were content with this approach. As a result, both Grist J. and myself attended the site visit on July 12, 2022, and we both presided at the oral submissions hearing on July 13, 2022. The Parties understood that I would be issuing the Reasons.

[29] This Claim involves requests made for reserve land in two joint processes established by Canada and the Province to review and adjust Indian reserve allotments. These processes were the McKenna-McBride Commission between 1912 and 1916, and the Ditchburn-Clark Review between 1920 and 1923. First, I discuss the history of reserve creation in British Columbia. Second, I set out the legal principles that apply to the three sites claimed. This includes an explanation of when Canada owes a fiduciary duty to Indigenous peoples and the factors necessary to fulfill a fiduciary duty in the reserve creation process. Third, I briefly comment on the oral history and documentary evidence before the Tribunal. Fourth, I analyze each claimed site: Pretty Girl Cove, northwest Vargas Island and additions to Quortsowe IR 13.

[30] Before the Tribunal both Parties have had an opportunity to present evidence regarding the unique historical narratives of each of the sites claimed. The oral history testimony proved to me the strong emotional and spiritual attachment the Ahousaht members have to the land and water from which they harvested food and on which they built their villages.

[31] The Claimant provided three historical reports authored by researcher and lay witness Aaron Blake Evans (Exhibit 23, report dated September 1, 2010; Exhibit 25, report dated March 27, 2020; Exhibit 26, report dated February 11, 2020), as well as two volumes of supporting documents for his 2020 report (Exhibits 35 and 36) and supporting documents for his 2010 report (Exhibit 34). The Respondent provided an expert report authored by Adrian Clark regarding the nine sites claimed by the Ahousaht (Exhibit 28, report dated August 3, 2021), as well as three volumes of supporting documents (Exhibits 30–32). Adrian Clark was qualified as an expert historian by Grist J. on May 9, 2022.

[32] The Ahousaht cite both paragraphs 14(1)(b) and (c) of the SCTA in their Further Amended Declaration of Claim (para. 6).

[33] The Ahousaht submit that Canada breached its fiduciary and statutory duties by failing to protect their interests in the land they historically requested as reserve land. The sites claimed include Indigenous settlements, fishing stations and arable land.

[34] In respect of the three remaining sites claimed, the Ahousaht argue that there were Indigenous settlements on the lands they requested before the McKenna-McBride Commission and in the Ditchburn-Clark Review that they occupied seasonally or throughout the year. The Ahousaht argue that they have a cognizable interest in these claimed lands (Claimant’s written submissions at para. 1). The Ahousaht submit that Canada assumed discretionary control over the reserve creation process. The Ahousaht argue that Canada, therefore, had fiduciary obligations of loyalty, good faith, full disclosure and ordinary prudence to act in the best interests of the Ahousaht in relation to these lands (Further Amended Declaration of Claim at para. 56).

[35] The Ahousaht contend that Canada had a fiduciary duty to prevent lands that were the site of an Indigenous settlement from being pre-empted and that any pre-emption of an Indigenous settlement was illegal because it violated the relevant Land Act of the time (Further Amended Declaration of Claim at para. 58). To the extent that Canada failed to protect the Ahousaht’s interests by allowing the alienation of Ahousaht settlements to private landholders in British Columbia, the Ahousaht argue that Canada breached its fiduciary duties and legal obligations to them. Moreover, where Ahousaht settlements had been pre-empted, the Ahousaht state that Canada failed to notify the Province of the error and ensure that it was rectified. The Ahousaht submit that Canada failed to ensure the land in question was set aside as reserve land for the Ahousaht (Further Amended Declaration of Claim at para. 59).

[36] The Ahousaht further claims that Canada breached its fiduciary duties by failing to make proper enquiries regarding the reserve requests and by failing to press the Province to agree to the reserve requests (Claimant’s written submissions at para. 2). The Ahousaht state that Canada failed to properly ascertain whether the land requested as reserve land was available. If the land had been alienated, the Ahousaht say that Canada failed to inquire into whether the alienation was lawful or if there were ways in which the land could become reserve land at the time it was requested or in the foreseeable future (Further Amended Declaration of Claim at paras. 59–60).

[37] The Claimant argues that where the claimed land was not available, Canada’s fiduciary duty included a duty to consider alternative lands for reserve creation (Claimant’s written submissions at paras. 230–31).

[38] Canada has admitted the validity of six of the nine claimed sites. Canada agrees that the Crown must exercise ordinary diligence when identifying land in which a First Nation had an interest that was capable of recognition. However, it states it needs the assistance of the Tribunal with respect to the remaining three claimed sites.

[39] For the Pretty Girl Cove site, Canada argues that the Ahousaht had no cognizable interest at this site. Even if it did, Canada submits that it did not breach its fiduciary duty as the Crown or its agents exercised ordinary diligence and made adequate inquiry when investigating the Ahousaht’s application for this land. Canada argues further that if it is found that the Crown should have considered land elsewhere in the Pretty Girl Cove region, the evidence does not demonstrate that the Ahousaht had a cognizable interest in the surrounding areas sufficient to establish a fiduciary duty.

[40] For the two remaining contested claimed sites, northwest Vargas Island and additions to Quortsowe IR 13, Canada submits that the evidence does not demonstrate that the Crown had sufficient knowledge of a cognizable interest in the claimed land to establish a fiduciary duty (Canada’s written submissions at paras. 111, 148). Canada says that for these two claimed sites, the historical record was either ambiguous or too incomplete to establish whether the Ahousaht or their ancestors occupied the land at the time the Ahousaht requested the land. In the alternative, if a fiduciary duty is established, Canada argues that the Crown’s actions do not constitute a breach of that fiduciary duty. Canada and its agents exercised ordinary diligence and made adequate inquiry into the claimed sites (Canada’s written submissions at paras. 118, 154).

[41] In their Agreed Statement of Issues, the Parties agreed the issues are as follows:

[42] There is a long history of Indigenous peoples becoming dispossessed of their traditional territory in British Columbia. With the exception of the Douglas Treaties on Vancouver Island and Treaty 8 in what is now northeastern British Columbia, treaties were not historically entered into with Indigenous peoples in British Columbia. After British Columbia joined Confederation in 1871, the focus became a joint federal-provincial effort to allocate reserve land on land historically and habitually used and occupied by Indigenous peoples.

[43] The federal government has jurisdiction over “Indians, and Lands reserved for the Indians” under subsection 91(24) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5. In 1871, when the Province joined the Dominion of Canada, the Province held title to most Crown land within British Columbia, including land required for reserve creation. The federal government had no power to unilaterally establish a reserve on the public land of the Province: Ontario Mining Co v Seybold, 1902 CarswellOnt 681, [1902] JCJ No 2 (Ontario PC). Equally, the Province could not unilaterally establish an Indian reserve within the meaning of the Indian Act because this legislation was within an area of federal jurisdiction. As a result, the reserve creation process required cooperation between the federal and provincial governments.

[44] After joining Confederation, the policy regarding “Indians” in British Columbia became a constitutional responsibility of Canada. Pursuant to article 13 of the British Columbia Terms of Union, RSC 1985, Appendix II, No 10 [Terms of Union], Canada became the “exclusive intermediary” to deal with the Province regarding First Nations’ “interest in specific lands that were subject to the reserve-creation process for their benefit” (Wewaykum at para. 93). In the Preamble to article 13 of the Terms of Union, Canada and the Province agreed that future reserve creation was to embody “a policy as liberal as that hitherto pursued by the British Columbia Government.”

[45] Under article 13, to effect cooperation between the federal government and the Province, the Province was required to convey tracts of land to Canada for reserve creation. Land allocated for Indian reserves would be transferred to and managed by Canada in trust for the use and benefit of the Indigenous peoples (ʔAkisq̓nuk First Nation v Her Majesty the Queen in Right of Canada, 2020 SCTC 1 at para. 34 [ʔAkisq̓nuk]). Despite later reluctance on the part of the Province to transfer these tracts of land to Canada, the terms of article 13 of the Terms of the Union were clear:

[46] The period of time from British Columbia joining Confederation in 1871 until 1938 was a protracted period of conflict and negotiations between the two governments with Indigenous peoples caught in the middle. The federal government sought to allocate reserves where Indigenous peoples historically and habitually used and occupied land. The Province claimed a reversionary interest in any land allocated as reserves and thought the federal approach was too liberal in the amount of land sought as reserves. The dispute continued until the formal transfer of the land was agreed to and the land actually transferred from the Province to Canada by Order in Council in 1938 (BC OIC 1036-1938).

[47] The reserve creation process was initially carried out through the Joint Indian Reserve Commission (JIRC). The JIRC was established by Canada and the Province in 1876 to identify what land would warrant allotment as reserve land for Indigenous peoples. It was tasked with achieving a “speedy and final adjustment” of the Indian reserve question in British Columbia (Exhibit 30, Tab 9). Originally, three commissioners were appointed, one by the Government of the Dominion, one by the Government of British Columbia, and the third to be named by the Dominion and the provincial government jointly. The commissioners were to visit First Nations, to inquire into “all matters affecting the question” and to determine the number and extent of reserves to be allotted to them (Exhibit 30, Tab 9).

[48] In Ahousaht First Nation v Her Majesty the Queen in Right of Canada, 2019 SCTC 1 at paras. 37–39 [Ahousaht 2019], Chairperson Slade J. (as he then was) described the instructions to the commissioners of the JIRC. He quoted from the November 10, 1875, memorandum attached to the Governor in Council’s approval of the instructions, which are in part as follows:

[49] The work of the JIRC began in earnest with the appointment of Gilbert Sproat in 1878 representing both the Dominion and provincial governments as a single commissioner. Sproat ultimately resigned due to disagreements with the governments’ policies. In 1880, Peter O’Reilly, a county court judge, was appointed by the federal and the provincial governments, again as a single commissioner. He allotted most of the reserve land under the JIRC. Commissioner O’Reilly identified 19 parcels of land to be allocated as reserve land for the Ahousaht. In 1889, these 19 parcels were approved and became Ahousaht reserves (Agreed Statement of Facts (ASF) at para. 14). However, the JIRC did not completely settle the question of reserve land in British Columbia. O’Reilly’s allocations of reserve land later became the subject of the review undertaken by the McKenna-McBride Commission.

[50] On December 27, 1907, the Province published a notice in The British Columbia Gazette stating that if a timber licence (TL), timber lease or Indian reserve was surrendered, cancelled or in any way terminated in whole or in part, the affected land would be reserved from pre-emption, sale or other alienation under the Land Act (Exhibit 35, Tab 11). The inclusion of the surrender of an Indian reserve in this policy declaration followed the provincial position that the Province held a right of reversion in respect of reserve lands. This, and other issues, created a deadlock with respect to the reserve creation process resulting in the 1907 refusal by the Province to approve further reserve lands.

[51] To address the conflicts and the Province’s refusal in 1907 to approve any further reserve land, the McKenna-McBride Commission was set up to address the question of land allocation. The McKenna-McBride Commission was appointed in 1912 as a joint commission by both the federal and provincial governments to settle differences between the two governments regarding “Indian reserves”. The McKenna-McBride Memorandum of Agreement, establishing the McKenna-McBride Commission, was signed on September 24, 1912. The McKenna-McBride Commission was designed to make a final adjustment of Indian reserves in the Province.

[52] Under its terms, the McKenna-McBride Commission was “authorized to confirm reserves, cut off reserves, and make recommendations regarding new reserves based on applications received from First Nations” (ASF at para. 15; see also Exhibit 28 at p. 42). Its recommendations were subject to approval by both governments (Exhibit 28 at p. 69).

[53] The McKenna-McBride Memorandum of Agreement set out the responsibilities of the McKenna-McBride Commission as follows:

[54] Both the Province and the Dominion passed Orders in Council, agreeing:

[55] The McKenna-McBride Commission was not undertaken at the request of any Indigenous groups (ʔAkisq̓nuk at para. 125). For some Indigenous groups, the entire premise of the McKenna-McBride Commission was invalid. The Allied Tribes of British Columbia (Allied Tribes), for example, were opposed to the McKenna-McBride Commission. In their view, a re-examination of reserves was insufficient; they instead pressed for a declaration of Aboriginal title (ʔAkisq̓nuk at para. 125).

[56] Canada’s response to these objections, prior to the McKenna-McBride Commission issuing its report, was to assure the Indigenous peoples that the recommendations of the Commission would be “disclosed to them and not implemented without their consent” (ʔAkisq̓nuk at para. 125, citing Cole Harris, Making Native Space, Colonialism, Resistance, and Reserves in British Columbia (University of British Columbia Press, 2002), at p. 229). Canada’s expert Adrian Clark states in his report that Cole Harris is “[a]n authoritative source on colonial Indian reserve creation” (Exhibit 28 at p. 24).

[57] The McKenna-McBride Commission consisted of five commissioners who travelled throughout the Province for three years taking evidence in First Nation communities. The McKenna-McBride Commission completed its report in 1916, but neither government was satisfied with the report and they refused to approve it. As Canada’s expert Adrian Clark explained:

[58] Despite assurances from Canada that the recommendations of the McKenna-McBride Commission would be subject to approval by First Nations, Indigenous peoples were not given the report until 1919 (ʔAkisq̓nuk at para. 133). The Indigenous peoples on the West Coast, as a whole, were dissatisfied with its findings.

[59] In response to the deadlock between the federal and provincial governments, in 1920 the Ditchburn-Clark Review was created. Major J. W. Clark was appointed by the Province; W. E. Ditchburn, Chief Inspector of Indian Agencies, was appointed by Canada. The Ditchburn-Clark Review was to review the McKenna-McBride Commission’s findings and submit a report of its own making recommendations about the McKenna-McBride Commission’s report. The objective of the Ditchburn-Clark Review was to settle all differences between the governments and to bring the reserve allocation process to a conclusion (Exhibit 28 at p. 75; ʔAkisq̓nuk at para. 132).

[60] In 1922, Chief Inspector Ditchburn engaged three officials of the Allied Tribes, including Secretary Andrew Paull, to assist with the review. By the time Chief Inspector Ditchburn and Major Clark were appointed, Paull observed that nearly all the good land had been pre-empted or Crown granted and that therefore Crown lands were hard to obtain. Paull reported that the First Nations he had spoken to believed by the time of the Ditchburn-Clark Review, they had “a very poor chance of receiving the lands they require now and for the present future” (Exhibit 32, Tab 229). As Adrian Clark points out in his report:

[61] Toward the end of the Ditchburn-Clark Review, Chief Inspector Ditchburn submitted a supplementary list of proposed reserves to the Province that were in addition to the new and confirmed reserves recommended by the McKenna-McBride Commission. Ditchburn included eight proposed reserves for the Ahousaht. He identified some lands on the supplementary list that had reverted to the Crown (i.e., were no longer alienated and were therefore available) since the McKenna-McBride Commission conducted its work. Ditchburn viewed these lands as deserving special consideration (Exhibit 28 at p. 97).

[62] In early January 1923, Chief Inspector Ditchburn and Major Clark were close to concluding their review. Ditchburn met with the Province’s Minister of Lands, T. D. Patullo, and followed up with a letter on January 17, 1923. Ditchburn urged the Province to approve the additional reserves identified on his supplementary list in addition to the new reserves recommended by the McKenna-McBride Commission. He explained he had carefully gone through the list of proposed new reserves submitted by the Allied Tribes. He emphasized he thought the additional land applications should be allowed.

[63] Chief Inspector Ditchburn knew that his supplementary list of proposed reserve land “was not going to be that well received by the [P]rovince” (Hearing Transcript (testimony of Adrian Clark), May 9, 2022, at p. 78). Ditchburn was concerned that Major Clark was reluctant to provide additional reserve lands to Indigenous peoples. He advised Deputy Superintendent General (DSG) D. C. Scott in writing on February 23, 1923, that he “would have greatly preferred if the Provincial Government had appointed somebody with broader views on Indian matters than Major Clar[k] has” (Exhibit 32, Tab 231). He added that Major Clark was inclined to be “very cheese-paring where a few acres of land are concerned” (Exhibit 32, Tab 231).

[64] Some of the provincial government’s approaches to the Ditchburn-Clark Review were inconsistent with prior instructions made jointly by the Dominion government and the Province to the commissioners of the JIRC. For example, in 1880, the instructions to Commissioner O’Reilly regarding the assignment of reserves were as set out in the Agreed Statement of Facts at paragraph 12:

[65] During the Ditchburn-Clark Review, Canadian officials questioned the provincial authorities regarding reserve allocation. As Chief Inspector Ditchburn stated to Deputy Minister of Lands G. R. Naden: “The list I have submitted represents only a very small fraction of what [the Indigenous peoples] asked for …” (Exhibit 32, Tab 238). Canada made enquiries about the Province’s position regarding the supplementary list and encouraged that the list be accepted. Nevertheless, Major Clark rejected the supplementary list outright when he reported to the Minister of Lands. Instead, Major Clark reported to Minister Patullo that “many of the applications were for lands in strategic locations which might be valuable for water power development as one example” (Exhibit 28 at p. 89). According to Major Clark, allocating such lands as reserves for Indigenous peoples would interfere with the development of the West Coast.

[66] On April 6, 1923, Minister Patullo informed DSG Scott that, subject to confirmation by the Governor-in-Council, he was prepared to approve the McKenna-McBride Commission’s report with the amendments, additions and deductions as recommended by the Ditchburn-Clark Review. He was clear, however, that he did not view the supplementary list with favour. Minister Patullo commented that the “Indians already have a great proportion of the chief strategical locations along the Coast.” He stated:

[67] To put Minister Patullo’s comments into perspective, the amount of land reserved for First Nations in coastal British Columbia in the early 1920s was a tiny proportion of the total land in the area. This is shown in the 1920 map entitled Southerly portion of Vancouver Island and created by the Department of Lands, which shows Indigenous reserves in red (Exhibit 32, Tab 228).

[68] On April 9, 1923, DSG Scott replied to Minister Patullo. He urged the Province to undertake a thorough examination of the supplementary list and to allow the additions where possible to do so. He noted that the Ditchburn-Clark Review was a final adjustment of all claims for Indian reserves between the Dominion and the Province under article 13 of the Terms of Union. DSG Scott indicated that Canada felt “very strongly that these applications on behalf of the Indians should receive very careful and sympathetic consideration, and should not be refused unless for very weighty reasons” (Exhibit 32, Tab 241). Nevertheless, in the Ditchburn-Clark Review’s March 1923 report not a single new application was approved. There were no changes to the reserve allocations as they pertained to the three sites claimed before me. In fact, there were no changes to any reserves in the West Coast Agency which included the Ahousaht (Exhibit 28 at p. 92).

[69] On April 10, 1924, the Department of Lands carried out a further review of the supplementary list as Minister Patullo had earlier promised. Timber Cruiser Collins examined the lands on the West Coast of Vancouver Island to re-evaluate their suitability as additional reserves. As summarized by Adrian Clark in his report:

[70] Between 1923 and 1924, the Canadian and provincial governments passed Orders in Council adopting the revised Ditchburn-Clark Review report as a “full and final adjustment and settlement of all differences in respect thereto between the Governments of the Dominion and the Province, in fulfilment of the said Agreement of the 24th day of September 1912 [the McKenna-McBride Commission] and also of [article] 13 of the Terms of Union” (Exhibit 32, Tab 250 (PC 1924-1265); Exhibit 32, Tab 242 (BC OIC 911-1923)).

[71] In 1926, based on his inspection of seven sites associated with the Ahousaht, Chief Inspector Ditchburn recommended four new reserves. On May 4, 1926, he wrote to the Superintendent of Lands, H. Cathcart, stating that some lands on the supplementary list had reverted to the Crown. He noted they had not been pursued by the McKenna-McBride Commission because the land had not been available at that time. According to Adrian Clark, Ditchburn now “viewed these reverted parcels as deserving special consideration” (Exhibit 28 at p. 97). Nevertheless, on June 14, 1926, the Superintendent of Lands for the Province advised Ditchburn that it was “unable to favourably entertain the application to place the lands comprised in the list referred to under reservation for Indian purposes” (Exhibit 32, Tab 259).

[72] By Order in Council (BC OIC 1036-1938), the Province conveyed to Canada the majority of the land required for reserve creation. BC OIC 1036-1938 did not include any land on Chief Inspector Ditchburn’s supplementary list.

[73] The Ditchburn-Clark Review failed to resolve the question of “Indian” land and today we continue to address the fallout from the approach taken by Canada and the Province over 100 years ago.

[74] The various Land Acts are important to these claimed sites. The Land Act provisions were intended to protect Indigenous settlements from being lost through the timber licence (TL) and pre-emption processes. These provisions recognized that reserves were to protect traditional lands that Indigenous peoples required for their sustenance and livelihood which were at risk from the newcomers.

[75] Lands that were already subject to a TL, Crown grant, lease or pre-emption prior to the existence of an Indigenous settlement or reserve were not available for reserve creation.

[76] The Land Act, RSBC 1897, c 113 [Land Act, 1897] is the applicable Act for the IR 13 claimed sites.

[77] Section 56 of the Land Act, 1897, provided that a timber licence could not be granted over land on which there was an Indigenous settlement or reserve. Specifically, section 56 stated as follows:

[78] Under section 72 of the Land Act, 1897, as amended by section 9 of the Land Act Amendment Act, RSBC 1899, c 38, the Province could convey lands to the Dominion government for Indian reserves provided that they were “not lawfully held by pre-emption, purchase, lease or Crown grant”. Section 72 states:

[79] The Land Act, RSBC 1908, c 30 [Land Act, 1908] is the applicable Act for the Pretty Girl Cove claimed site. It also precluded a timber licence (TL) from being granted on lands that were the site of an Indian settlement:

[80] Section 80 of the Land Act, 1908, provided that the Province could convey lands to the Dominion government for Indian reserves provided that they were “not lawfully held by pre-emption, purchase, lease or Crown grant”:

[81] The Land Act, RSBC 1911, c 129 [Land Act, 1911] is the applicable Act for the northwest Vargas Island claimed site. It precluded pre-emptions from being registered on lands that were Indian settlements. It also did not authorize the Province to reserve for Indians lands lawfully held by pre-emption or Crown grant (section 127 of the Land Act, 1911). Only “unoccupied and unreserved Crown lands” that were not Indian settlements were available for pre-emption.

[82] Subsection 7(1) of the Land Act, 1911, provided in part:

[83] Form No. 2 in the Schedule of the Land Act, 1911, is the form for the declaration to be filled out by a pre-emption applicant. The applicant must solemnly declare that the land being applied for is “unoccupied and unreserved Crown land” and that it is not part of an Indian settlement. Specifically, paragraph 3 of Form No. 2 provided:

[84] Subsection 11(5) of the Land Act, 1911, provided that where a pre-emption applicant made a false declaration, the applicant had no right at law or in equity to the land the applicant may have obtained due to the false declaration:

[85] Section 109 of the Land Act, 1911, provided that a timber licence could not be granted over land that was an Indian settlement:

[86] Section 127 of the Land Act, 1911, provided that the Province could convey lands to the Dominion government for Indian reserves provided that they were “not lawfully held by pre-emption, purchase, lease or Crown grant”. Specifically, section 127 stated:

[87] Section 157 of the Land Act, 1911, provided that where a Crown grant had been issued “through fraud, or in error, or by improvidence” or “in any other respect been improperly issued”, the Province could cancel the Crown grant and the original pre-emption record. Specifically, section 157 provided:

[88] The reserve creation process in British Columbia comes within the “precept of the honour of the Crown”; it creates “the potential for Crown duties as a fiduciary” (Ahousaht 2019 at para. 17, citing Kitselas First Nation v Her Majesty the Queen in Right of Canada, 2013 SCTC 1 [Kitselas] and Williams Lake Indian Band v Her Majesty the Queen in Right of Canada, 2014 SCTC 3 [Williams Lake]). The fiduciary duties arise from Canada’s assertion of sovereignty over the traditional territory of Indigenous peoples. The concept of a sui generis fiduciary duty to Indigenous peoples is rooted in the obligation of honourable dealing and the overarching goal of reconciliation (Southwind v Canada, 2021 SCC 28 at para. 55, 459 DLR (4th) 1, citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at paras. 17–18, [2004] 3 SCR 511).

[89] In the reserve creation process in British Columbia, the Crown will have a fiduciary duty to a First Nation where: the First Nation has a specific Indigenous interest in land; that interest is “cognizable” or “capable of being known or recognized” by the Crown (Williams Lake SCC at paras. 80–81); and Canada has assumed discretionary control over the specific Indigenous interest (Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para. 18, [2004] 3 SCR 511).

[90] To establish a cognizable interest, the Indigenous peoples must establish a specific Indigenous interest in land. A specific Indigenous interest exists in lands that are habitually used and occupied by a First Nation (Canada v Kitselas, 2014 FCA 150 at paras. 16, 38, 49 and 50)[Kitselas FCA]; Kitselas at paras. 143, 145, 161; Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 81, [2018] 1 SCR 83 [Williams Lake SCC]).

[91] The specific Indigenous interest must be cognizable or “capable of being known or recognized” by the Crown; it must be apparent to Crown officials charged with implementing policies regarding reserve creation (Williams Lake SCC at paras. 80–81). In other words, the Indigenous “interest” is modified by the word “cognizable” resulting in a two-step process. First, the Indigenous peoples establish a specific interest in the claimed land. Second, the interest must be cognizable, i.e., known or capable of being known, by the Crown.

[92] The Crown will not have a fiduciary duty with respect to lands in which there is no cognizable interest. As stated in Ahousaht 2019, it is “uncontroversial to say that one cannot take action affecting that which is not known to exist” (para. 127).

[93] The First Nations’ cognizable interest in land exists independent of the Crown’s executive and legislative functions (Williams Lake SCC at paras. 66, 68). The cognizable interest is not created by Crown enactments and policies; rather, the interest “was recognized by enactments and policies as an independent interest in land” (emphasis in original; Williams Lake SCC at paras. 68, 81, cited in Ahousaht 2019 at para. 20). An Indigenous interest will usually pre-date Crown recognition. It is a pre-existing interest which becomes cognizable when it is known, or capable of being known, by the Crown (Ahousaht 2019 at para. 23).

[94] The Supreme Court of Canada held a finding by the Tribunal of a cognizable interest “will be reasonable provided that there was an Aboriginal interest at stake in the early stages of the reserve creation process that was sufficiently specific or cognizable for the assumption of ‘discretionary control in relation thereto … to ground a fiduciary obligation’” (Williams Lake SCC at para. 66, citing Wewaykum at para. 83).

[95] What constitutes a cognizable interest will depend on the instant factual circumstances. The following examples are instructive.

[96] In Williams Lake at paragraph 342, Chairperson Slade J. (as he then was) held that the First Nation had a cognizable Indigenous interest in lands at the foot of Williams Lake. There were Indigenous houses on the land and other indications of an Indigenous settlement, and these would have been evident to government officials who arrived with instructions to set out First Nation reserves in 1860 (paras. 103, 108, 112). His decision was upheld by the Supreme Court of Canada.

[97] In Kitselas, Chairperson Slade J. (as he then was) held that the First Nation had a cognizable interest in the site of an ancient village site, Gitaus. He predicated the cognizable interest on visible indications of a former village site in 1891 (para. 86). The land was “used intensively” and “[t]here were buildings, a garden, and one end of a portage in the immediate area” (para. 153). The Federal Court of Appeal in Kitselas FCA held that the land at issue “was clearly delineated and identifiable” and that the Kitselas First Nation had a cognizable interest based on the First Nation’s “historic and contemporary use and occupation as a settlement” (emphasis in original; Kitselas FCA at para. 54).

[98] In Ahousaht 2019, the Ahousaht claimed as reserve land an area known to them as “aauuknuk”. In 1889, Commissioner O’Reilly had allotted a village site as a reserve. The area known as aauuknuk was located near the village site. Aauuknuk was used for various traditional purposes including harvesting salmon and other resources. On June 19, 1889, Commissioner O’Reilly met with the Chief and some members of the First Nation and had a long conversation with them. He ascertained which fisheries they wished to have allotted as reserves (para. 154). Chairperson Slade J. accepted the Ahousaht’s perspective that the use of the land was integral to village life and held there was a cognizable interest in the land claimed (Ahousaht 2019 at paras. 124, 145). Chairperson Slade J. found, however, that the Ahousaht did not inform Commissioner O’Reilly of the Indigenous uses of the land in question. As a result, it was not possible for the Crown, through reasonable diligence, to be aware of the Indigenous interest in aauuknuk (Ahousaht 2019 at paras. 202–03). Consequently, there was no breach of the Crown’s fiduciary duty (para. 207).

[99] Where the Crown has discretionary control over a cognizable interest, the Crown will have a fiduciary duty in relation to that interest (Wewaykum at paras. 79–83, 85).

[100] Under article 13 of the Terms of Union, the Crown assumed responsibility and discretionary control over First Nations’ interest in lands. The Crown became the exclusive intermediary with the Province in the reserve creation process (Wewaykum at paras. 93, 97). As a result, Indigenous peoples were “entirely dependent on the Crown to see the reserve-creation process through to completion” (Wewaykum at para. 89; Ahousaht 2019 at para. 32).

[101] In the context of reserve creation in British Columbia, if a First Nation can demonstrate a cognizable interest in land, Canada is understood to have assumed discretionary control in relation to that interest.

[102] The content of a fiduciary duty varies with the nature and importance of the interest being protected (Wewaykum at para. 86; Manitoba Métis Federation Inc v Canada (AG), 2013 SCC 14 at para. 49, [2013] 1 SCR 623 [Manitoba Métis]). It requires an examination of the facts and surrounding circumstances to assess the existence, content and breach of the duty (Wewaykum at paras. 83, 86; Manitoba Métis at para. 49; Williams Lake at para. 55). It is the cognizable interest to which the prescribed standard of conduct applies (Williams Lake SCC at para. 89). The “Crown fulfils its fiduciary obligation by meeting the prescribed standard of conduct, not by delivering a particular result” (Williams Lake SCC at para. 48).

[103] After the Province joined Confederation in 1871, Canada became responsible for Indigenous peoples in British Columbia. Pursuant to an agreement between the Province and the Crown, Canada was required to continue “a policy as liberal as” the policy established by the previous colonial government with respect to the trusteeship and management of lands reserved for Indigenous peoples (article 13 of the Terms of Union). As Chairperson Slade J. stated at paragraph 324 in Williams Lake: “This policy informs the standard to be met by Canada as a fiduciary.”

[104] In Wewaykum, the Supreme Court of Canada defined the Crown’s fiduciary duty during the reserve creation process as a duty to “act 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” (para. 97).

[105] In Ahousaht 2019, Chairperson Slade J. elaborated on the standard of ordinary diligence:

[106] At the reserve creation stage, the Crown had a duty to “make adequate inquiry to identify land under its control in which the Indians have a cognizable interest,” meaning land used “habitually in their regular pursuits” (Ahousaht 2019 at para. 48). Also at the reserve creation stage, the Crown had a fiduciary duty to consider both Indigenous interests in land and the interests of settlers. As articulated by the Supreme Court of Canada in Wewaykum, prior to reserve creation “the Court cannot ignore the reality of the conflicting demands confronting the government, asserted both by the competing bands themselves and by non-Indians” (para. 96). Nevertheless, the existence of these demands does not absolve Canada of its fiduciary duty to Indigenous peoples and the need to reconcile them fairly (Wewaykum at paras. 96–97).

[107] The Crown’s fiduciary duty to First Nations in reserve creation includes a duty to disclose to and consult with a First Nation whose interests are affected prior to deciding not to pursue a particular reserve request with the Province (Kitselas at para. 203; ʔAkisq̓nuk at paras. 186, 191).

[108] In Williams Lake, the Tribunal held that the Crown breached its fiduciary duty of ordinary prudence by failing to inquire into the extent of the Indigenous settlement at the foot of Williams Lake. Had the Crown done so, colonial legislation could have been used to protect the land from pre-emption (Williams Lake SCC at para. 63).

[109] In Kitselas, the Tribunal held that the Crown breached its fiduciary duty by failing to make full disclosure to the First Nation regarding its decision not to include in the reserve land an ancient village site despite clear evidence that the Kitselas First Nation was using the area (para. 203). In ʔAkisq̓nuk, Canada breached its fiduciary obligation to the ʔAkisq̓nuk First Nation by failing to disclose and consult with them before accepting British Columbia’s proposal to abandon the additional reserve lands recommended by the Ditchburn-Clark Review.

[110] In summary, a duty of ordinary diligence cannot be met by doing nothing; it requires adequate inquiry and, once interests are identified, the Crown must at a minimum be ordinarily diligent in pursuing this interest (Ahousaht 2019 at paras. 48–49). The federal Crown must disclose to and consult with Indigenous peoples regarding the status of their requests for reserve land during the reserve creation process (ʔAkisq̓nuk at para. 191). The content of the fiduciary duty is determined by the strength of the Indigenous interests at stake, which requires a fact-based examination (Williams Lake SCC at para. 83).

[111] I have carefully reviewed the transcripts of the oral history evidence hearing before the Tribunal regarding these claimed sites. I thank all oral history witnesses for the time and energy they put into their testimony, including Percy Campbell and Angus Campbell. The testimony of these two individuals dealt exclusively with claimed sites for which Canada admitted validity, so ultimately it was not necessary to discuss their testimony in these Reasons.

[112] I thank both Parties for filing a comprehensive ASF.

[113] The Claimant submitted three short videos from the site visits done by boat to Pretty Girl Cove, northwest Vargas Island and Warn Bay (site of Quortsowe IR 13) on July 12, 2022. These videos consisted of Elders addressing the Tribunal and responding to questions from the Tribunal and Canada in an informal setting. In the video recorded at Pretty Girl Cove, an Elder pointed out an important river for salmon and Harold Little’s father, Harold Little Senior, pointed out where his family had lived. The video recorded near Vargas Island included a ceremony and a warrior song sang by Wickaninnish, an Elder.

[114] After the site visit, both Parties provided their consent to have the three videos marked as exhibits in the proceeding. Ultimately, it was not necessary for me to rely on the videos because this evidence was provided by oral testimony before the Tribunal on April 30, 2019, and May 2, 2019.

[115] Aaron Blake Evans appeared as a witness for the Claimant. He is an archival researcher, an archaeologist and an anthropologist. Evans is not a member of the Ahousaht First Nation or any of the fourteen Nuu-chah-nulth First Nations, of which Ahousaht is one (Hearing Transcript, October 8, 2020, at p. 72). Evans conducted original research into the claimed sites which are the subject matter of these Reasons. He produced a report in 2010 entitled Ahousaht First Nation Additional Land Applications for Ahousaht Settlements (Exhibit 23). He also produced two subsequent reports: a report entitled Research Summary Report on the Ahousaht Nation’s Additional Land Applications to the Royal Commission and the Ditchburn/Clark Review dated February 11, 2020 (Exhibit 26) and a report entitled Old Indigenous Village of “Sakamies” or “Ts’akamyis” on the north shore of Shelter Arm/Inlet dated March 27, 2020 (Exhibit 25).

[116] In a joint letter to the Tribunal dated July 22, 2020, both Parties agreed that Aaron Blake Evans would be appearing before the Tribunal as a lay witness to testify about what he personally knows regarding the issues relevant to the Claim, including knowledge he gained as a researcher. The Parties acknowledged Evans would not be appearing as an expert witness, and he would not be providing opinion evidence.

[117] As a result of this agreement, Canada took the position that:

[118] In response to Canada’s concerns, the Tribunal indicated that Aaron Blake Evans’ report dated March 27, 2020 (Exhibit 25) would be accepted as an exhibit but that the report would be “subject to a determination of weight in light of factors that may put statements into question” (Hearing Transcript, October 8, 2020, at pp. 60–62).

[119] Aaron Blake Evans is a fact witness who draws on his training and education to support his factual findings. He occasionally offers opinions flowing from his factual findings. He is not an expert and his opinions will be discounted by the Tribunal.

[120] Aaron Blake Evans prepared all of the maps contained in his 2020 report himself (Exhibit 26; Hearing Transcript, October 8, 2020, at pp. 84–85). The overlay maps in Exhibit 26 include a notation that the maps are produced by “a user generated static output from an Internet mapping site” (emphasis in original) and may not be accurate. I agree with counsel for Canada that it would not be possible for another party, such as Canada’s expert, to recreate these maps or verify the information contained within them (Hearing Transcript, October 8, 2020, at p. 86). Nevertheless, the maps noted above are generally consistent with other maps for this area introduced into evidence by the Parties (e.g., Exhibit 1; Exhibit 31, Tabs 104–05; Exhibit 32, Tab 228).

[121] The Crown called Adrian Clark as an expert witness. Clark has a master’s degree in Canadian history from the University of British Columbia and has engaged in over 26 years of historical research regarding Indigenous cultures in western Canada. Much of his experience is in British Columbia. He has previously been qualified as an expert witness by the Supreme Court of Yukon (Exhibit 28, Appendix B).

[122] Adrian Clark was qualified by the Tribunal as an expert historian on the history of Indian reserve creation in British Columbia, able to testify regarding “the situation that existed over time in respect of reserve creation” (Hearing Transcript, May 9, 2022, at p. 5). He could also testify regarding the sites claimed “and the availability of these sites for reserve creation” (Hearing Transcript, May 9, 2022, at p. 6). The Claimant agrees that Clark is an expert in these areas (Hearing Transcript, May 9, 2022, at pp. 4–6).

[123] On August 3, 2021, Adrian Clark produced a report and an errata to the report which corrected certain spelling and grammatical errors. The documents were entered as Exhibits 28 and 29 respectively.

[124] A Common Book of Documents was not prepared for this Claim. Instead, by agreement of counsel and with the Endorsement of the Tribunal, collections of supporting documents to Aaron Blake Evans’ reports and Adrian Clark’s report were entered as exhibits (see paragraph 31 of these Reasons).

[125] Lastly, in these Reasons the terms “timber lease” and “timber licence” have been used interchangeably.

[126] The Pretty Girl Cove claimed site concerns an alleged breach of the Crown’s sui generis fiduciary duty in the reserve creation process. Before the Ditchburn-Clark Review, the Ahousaht applied for a reserve at the head of Pretty Girl Cove. Relying on findings from the McKenna-McBride Commission, when the Hesquiaht First Nation applied for land at the same site, Chief Inspector Ditchburn did not include this land on his supplemental list. This was because the land was subject to a TL at the time of the McKenna-McBride Commission.

[127] I find the cognizable interest in this claimed site to be temporal. While the Ahousaht had an interest in Pretty Girl Cove at least as early as the late 1800s, it did not become cognizable until the Ahousaht applied to the Ditchburn-Clark Review in 1922 for reserve land at this site. Once the Ahousaht had a cognizable interest in 1922, Canada breached its fiduciary duty in relation to the requested land at Pretty Girl Cove.

[128] The Ahousaht argue that there is clear evidence of an Indigenous interest in respect of the claimed land. The Ahousaht rely upon survey records produced by H. H. Browne for District Lot (DL) 672. These records state: “Moo-chat-chitz is the Indian name of the locality. Moochatchila is suggested for creek.” The Ahousaht say that this “indicate[s] that Moo-chat-chitz or Moochunulth was an Indian settlement that encompassed the entire northeast land on Pretty Girl Cove” (Claimant’s written submissions at para. 154). The Ahousaht say that there was a cognizable interest, and therefore a fiduciary duty, with respect to the claimed land.

[129] The land claimed is partly on TL 3559 and partly on TL 3558P (Exhibit 26, map at section 6). The Ahousaht argue that TL 3558P was never surveyed. Consequently, the claimed land was available at the time of the Ditchburn-Clark Review.

[130] The Ahousaht contend that if Canada’s agent Ditchburn had undertaken proper due diligence he would have found that lands were available at or near the location of Pretty Girl Cove for reserve creation. Canada, the Ahousaht argue, breached its fiduciary duty by not investigating this land including alternative lands in the area. The Ahousaht also say that Canada breached its fiduciary duty by failing to advance the Ahousaht’s request with the Province (Claimant’s written submissions at paras. 230–31) and for not consulting with the Ahousaht when it did not do so.

[131] Canada argues that the Ahousaht did not request land at Pretty Girl Cove during the JIRC process in 1889 nor did it make an application for this site before the McKenna-McBride Commission. Canada says that as a result, there was no cognizable interest in this site.

[132] Canada argues that at the time of the Ditchburn-Clark Review, there was no breach of fiduciary duty as the Crown or its agents exercised ordinary diligence and made adequate inquiry when investigating the Ahousaht’s application for land at the head of Pretty Girl Cove. Canada says that the 1920 map entitled Southerly portion of Vancouver Island and created by the Department of Lands indicated that the area at the head of Pretty Girl Cove was alienated by a TL at the time of the Ditchburn-Clark Review as it had been at the time of the McKenna-McBride Commission. This can be seen on Exhibit 38, an enlargement of the relevant portion of the 1920 map.

[133] In the alternative, Canada acknowledges and adopts Adrian Clark’s expert opinion that Ahousaht members likely occupied the site at the head of Pretty Girl Cove when they made the request for reserve land in 1922.

[134] If the Tribunal finds that the Crown should have considered alternative lands at the head of Pretty Girl Cove, it is Canada’s position that, despite Canada’s officials making adequate and diligent inquiry to determine the extent of the Ahousaht’s use of the area and needs, the evidence does not demonstrate that the Ahousaht had a cognizable Indigenous interest in the areas surrounding the claimed land sufficient to establish a fiduciary duty (Respondent’s written submissions at para. 126).

[135] The test for establishment of a specific Indigenous interest is discussed in the section on legal principles above.

[136] Pretty Girl Cove is located at the head of Holmes Inlet, to the east of Sydney Inlet (Exhibit 1). Nearby lakes drain into the head of the cove by salmon-bearing rivers. The oral history evidence established that the Ahousaht travelled seasonally to different locations in order to harvest food. The testimony was the Ahousaht used land seasonally at the head of Pretty Girl Cove and on the east side at the mouths of the creeks for fishing, hunting and harvesting clams, berries and cedar bark at least as early as the late 1800s and into the early 1900s. Coming of age ceremonies for girls were also held at Pretty Girl Cove.

[137] The area around Pretty Girl Cove was also used for setting traplines and hunting, including elk, deer and ducks (testimony of Harvey Robinson and John Hudson Webster).

[138] Louie Joseph testified that families travelled seasonally to harvest both the game and the fish; they especially followed the migration of fish to the rivers in spawning season so that the Ahousaht would always have fish for food (Hearing Transcript, April 30, 2019, at p. 104). Louie Joseph also testified that the Ahousaht fished at Pretty Girl Cove where there were salmon, sockeye and clams (Hearing Transcript, April 30, 2019, at pp. 107–09).

[139] Pretty Girl Cove had the Indigenous name of Wuchachit, meaning to flood (testimony of John Hudson Webster). Wuchachit was originally Manhousaht territory. There was oral history evidence that Ahousaht families lived at the head of Pretty Girl Cove such as the Louie, Little and Swan families (testimony of David Maurice Frank, Harvey Robinson, Louie Joseph, Harold Little, Edwin Frank and James Swan Junior). Nehits also lived there. Nehits was a strong man of Ahousaht (Hearing Transcript, May 2, 2019, at p. 76). Johnson White lived on the north side of Pretty Girl Cove (testimony of John Hudson Webster). Chief Swan and Chief Jones Adams, also known as Metmut, lived on the opposite side the of the cove because they were protecting it (testimony of Arlene (Ruth) Paul). It was likely named Pretty Girl Cove because George Eder created a saltery at Pretty Girl Cove and had seven “pretty girls” working for him (testimony of John Hudson Webster). The area had special significance as it was where the Ahousaht had their coming-of-age ceremonies for girls (testimony of Harvey Robinson).

[140] Harvey Robinson was born in 1952 and his mother was born on December 29, 1920. He said his mother’s parents and grandparents had lived at Pretty Girl Cove; his mother’s grandparents lived there “all their lives” and “[t]hat’s where they were from” (Hearing Transcript, May 1, 2019, at p. 19).

[141] Harvey Robinson testified that his mother’s family, the Little family, lived at Pretty Girl Cove. They had cabins there and harvested fish and cedar bark. He marked the head of Pretty Girl Cove on Exhibit 10 with an “M” to show the area where the Little family lived (Hearing Transcript, May 1, 2019, at pp. 15–17). He also showed the location of creeks leading into Pretty Girl Cove where his mother’s family fished. The area where his mother’s family lived and fished in the creeks, correlates to the general area of DL 825 (TL 3559) and TL 3558P as indicated on Exhibits 10 and 10A. These areas are also shown on Aaron Blake Evans’ map regarding Pretty Girl Cove (Exhibit 26, map at section 6). Robinson noted that the Swan and Louie families lived at Pretty Girl Cove in longhouses. He said up to four families lived in one longhouse. The Swan and Louie families also had “little cedar houses” in Pretty Girl Cove (Hearing Transcript, May 1, 2019, at p. 21). This is where they lived seasonally when they were harvesting fish, clams and berries every year. Robinson said his mother’s family harvested every species of salmon, especially sockeye, from the rivers at Pretty Girl Cove (Hearing Transcript, May 1, 2019, at p. 19).

[142] Harold Little was born in 1935 and Harold Little’s father, Harold Little Senior, was born around 1914 (Hearing Transcript, May 2, 2019, at p. 2). Harold Little testified that his paternal grandparents, Mary and William Little and his Auntie Elsie, as well as “probably my dad and Jean Charleston” lived at the head of Pretty Girl Cove (Hearing Transcript, May 2, 2019, at p. 3). He marked the location where his family lived on Exhibit 10A with a “U” (Hearing Transcript, May 2, 2019, at pp. 6–7). This location is also shown on an area circled in red by Aaron Blake Evans on his map in his research summary report (Exhibit 26, map at section 6). This was approximately the same location Harvey Robinson indicated his mother’s family lived. The map (Exhibit 10A) was marked with a “V” at Ellen Lake, where Columba Louie and George Louie used to hike to harvest bark. The map was also marked with a “W” at a point a little south from the head of Pretty Girl Cove where Harold Little’s cousin, Russell Robinson, and Sam Mack built a canoe.

[143] John Hudson Webster was born in 1943. He testified that his uncle, James Adams, had fishing rights to a river that entered Holmes Inlet on the east side. John Hudson Webster said there were a lot of salmon and red snappers that swam up this river (Hearing Transcript, May 2, 2019, at pp. 74–75).

[144] Arlene (Ruth) Paul testified that James Adams lived on one side of the creek leading to the large lake at the head of Pretty Girl Cove and that Johnson White lived on the other side of the creek. Even when James Adams or Johnson White was not present, their families lived there (Hearing Transcript, May 3, 2019, at pp. 21–23).

[145] In summary, the oral history evidence establishes that the Ahousaht used land seasonally at the head of Pretty Girl Cove and on the east side at the mouths of the creeks for fishing, hunting and harvesting clams, berries and cedar bark at least as early as the late 1800s, continuing into the 1900s. Coming-of-age ceremonies for girls were also held at Pretty Girl Cove. The Ahousaht had several homes at the head of Pretty Girl Cove and on both sides of the creek. Unfortunately, there is no cogent evidence as to when the Ahousaht houses were built.

[146] The exhibits demonstrate that DL 825 is an approximately 616-acre lot located directly at the head and to the north of Pretty Girl Cove. Exhibit 1 shows streams or creeks at the head of Pretty Girl Cove and on the eastern side. Harvey Robinson identified creeks on Exhibit 10. DL 825 encompasses the mouth of the creek that drains Camp Lake into Pretty Girl Cove (Exhibit 35, Tab 16). DL 672 is south of DL 825. DL 672 is south and east of the creek that drains Camp Lake into Pretty Girl Cove (Exhibit 35, Tab 16; Exhibit 26, map at section 6).

[147] I find that prior to 1922 the Ahousaht had, at minimum, a specific Indigenous interest in the land claimed at Pretty Girl Cove for the purposes of seasonal hunting, fishing and harvesting clams, berries and cedar bark.

[148] The test for establishment of a cognizable interest is discussed in the section on legal principles above.

[149] I am persuaded that the Ahousaht had a specific Indigenous interest in the claimed land. The interest, however, was not capable of being known—of being cognizable—to the Crown prior to 1922. I come to this conclusion for the following reasons.

[150] First, there is no evidence that the Ahousaht requested Commissioner O’Reilly, in the JIRC process, to inspect Pretty Girl Cove in 1889 for the purposes of reserve creation (Exhibit 28 at p. 14). The evidence before me suggests that if the Ahousaht had requested a reserve at Pretty Girl Cove, O’Reilly would have considered and documented the request. From June 19 to 25, 1889, O’Reilly spent seven days visiting different locations in Clayoquot Sound and selecting lands for 29 Indian reserves. He allotted three reserves on nearby Sydney Inlet for the Ahousaht, but no reserves were allotted at Pretty Girl Cove.

[151] Andrew Paull mentioned that when Commissioner O’Reilly visited Indigenous communities, the Indigenous people may not have fully understood the purpose of O’Reilly’s visit and may not have identified all of the sites they wished to have as reserves. Paull states the Indigenous peoples:

[152] Whatever the reason, I find O’Reilly was unaware of any claim in the area of Pretty Girl Cove.

[153] Second, the evidence before me established that the Ahousaht did not request reserve land at Pretty Girl Cove before the McKenna-McBride Commission (Exhibit 28 at pp. 53, 56, 58, 59, 72). Rather, in 1914 the Hesquiaht First Nation made an application for land at Pretty Girl Cove before the McKenna-McBride Commission (Hearing Transcript (testimony of Adrian Clark), May 9, 2022, at p. 24). Relying on Adrian Clark, Canada emphasizes that the Hesquiaht First Nation had claimed land at the head of Pretty Girl Cove. It also says that it is unclear whether any “Indian houses” at Pretty Girl Cove were constructed by the Hesquiaht First Nation or predecessors to the Ahousaht (Respondent’s written submissions at para. 131).

[154] The McKenna-McBride Commission considered the 1905 and 1906 TL surveys, but the surveys did not refer to an Indigenous settlement in Pretty Girl Cove. Subsection 4(12) of the Land Act, 1908, provided that surveyors were to carefully note “Indian villages or settlements, houses and cabins, fields or other improvements” in their field books. The instructions in the field book provided to surveyors said to show “all hubs, topography and improvements [and to show] all posts, newly planted or old posts, with the markings thereon” (Exhibit 35, Tab 12 at p. 2 (1909 survey of DL 825 for TL)). Survey field book number FBBC 1189/09 PH 5 and accompanying documents show that in April 1909 a timber licence survey was conducted by Alex Gillespie for DL 825 (Exhibit 35, Tab 1 (1920 map of southerly portion of Vancouver Island)). The survey of DL 825 did not indicate any improvements on the land. There were no references to Indigenous settlements or houses. Timber licence 3559 was granted in favour of a Harold S. Harmsworth.

[155] The McKenna-McBride Commission found the “‘[o]nly useful portion of land applied for [was] alienated’ by timber licence” (ASF at para. 98; Exhibit 28 at p. 84). Therefore, the McKenna-McBride Commission denied Hesquiaht First Nation’s application as the land was “alienated and unavailable” (ASF at para. 98; Exhibit 28 at pp. 14, 17, 23, 86).

[156] Adrian Clark points out that Pretty Girl Cove was not the only location where the historical record presents conflicting information regarding use and occupation by the Hesquiaht First Nation and the Ahousaht. Pretty Girl Cove is an area that has been claimed by both the Ahousaht and the Hesquiaht First Nation. This is not unusual since Indigenous peoples moved throughout the seasons to harvest food sources. As a result, there are many overlapping Indigenous land claims in British Columbia.

[157] In ʔAkisq̓nuk, Grist J. held that Canada could not avoid its fiduciary obligation to be loyal to the ʔAkisq̓nuk First Nation’s interests by invoking its obligations to other First Nations that Canada acted for in the British Columbia reserve creation process (para. 186).

[158] Canada could have separate fiduciary obligations to both the Hesquiaht First Nation and to the Ahousaht for the same land if there was indeed an overlapping claim. A separate claim would not absolve Canada from a breach of fiduciary duty to the Ahousaht even if there was also a fiduciary duty to the Hesquiaht First Nation. The fiduciary obligation requires that the Crown comply with a prescribed standard of conduct to each Indigenous group (Williams Lake at para. 55; ʔAkisq̓nuk at paras. 184, 186; Wewaykum at para. 104).

[159] The Tribunal has the power to award monetary compensation for breaches of legal obligations by the Crown as set out in sections 14 and 20 of the SCTA. A decision of the Tribunal does not affect ownership of land. Consequently, a decision in favour of the Ahousaht will not prejudice the Hesquiaht First Nation if the Hesquiaht First Nation subsequently makes a claim regarding the land at Pretty Girl Cove.

[160] In any event, the Ahousaht did not apply for reserve land at or near Pretty Girl Cove before the McKenna-McBride Commission (Exhibit 28 at pp. 53, 56, 58, 59, 72).

[161] Andrew Paull’s request to Chief Inspector Ditchburn in 1922 for reserve land for the Ahousaht noted that there were “three houses” at Pretty Girl Cove (Exhibit 32, Tab 219). However, the evidence does not definitively establish the existence of an Ahousaht settlement in the area of Pretty Girl Cove in 1880, 1905, or at the time of the McKenna-McBride Commission. Even if there were houses present in the early 1900s, which Surveyor Gillespie did not record, it is not clear whether the houses belonged to the Ahousaht or to the Hesquiaht First Nation.

[162] The Ahousaht were aware of the McKenna-McBride Commission process; they requested other lands before the McKenna-McBride Commission. On May 18, 1914, the McKenna-McBride Commission met with the First Nation and sought its input regarding proposed reserve lands. Chief Swan, of the Manhousaht Nation (now amalgamated with the Ahousaht), requested additional reserve lands for the Hisnit Fishery at two locations, including a site on the east side of Hesquiaht Inlet. The McKenna-McBride Commission approved Ahousaht’s request for reserve lands for the Hisnit Fishery. If the Ahousaht had wished to request land at Pretty Girl Cove, they could have done so (Exhibit 31, Tabs 123–24). It is possible that they did not make the request in 1914 due to the competing claim of the Hesquiaht First Nation.

[163] Third, as stated in Ahousaht 2019, it is “uncontroversial to say that one cannot take action affecting that which is not known to exist” (para. 127). Given the remote location of Pretty Girl Cove, it is unlikely that the Crown, in 1914, would have had the opportunity to observe any Indigenous use or occupation of the land claimed without the Ahousaht informing the Crown of their interest.

[164] The evidence fails to demonstrate that the Ahousaht had a cognizable Indigenous interest in the areas surrounding the head of Pretty Girl Cove sufficient to establish a fiduciary duty at the time of the McKenna-McBride Commission. The interest of the Ahousaht in land at Pretty Girl Cove was not cognizable by the Crown prior to 1922 because it was not capable of being known or recognized.

[165] I find that the Ahousaht did not have a cognizable interest in Pretty Girl Cove up to and including the time of the McKenna-McBride Commission.

[166] The oral history evidence and the expert opinion of Adrian Clark demonstrate that the Ahousaht used and occupied land at Pretty Girl Cove in 1922 at a place the Ahousaht say was called Moochuchulth. The Ahousaht’s request referred to 20 acres including three houses and arable land at the head of Pretty Girl Cove. This was where the creek drained from Camp Lake (Respondent’s written submissions at para. 137).

[167] The Claimant argues that “Moo-chat-chitz or Moochunulth was an Indian settlement that encompassed the entire northeast land on Pretty Girl Cove” (Claimant’s written submissions at para. 154). Canada argues it is speculative that the name Moo-chat-chitz or Moochunulth “clearly indicated … an Indian settlement that encompassed the entire northeast land on Pretty Girl Cove” (Respondent’s written submissions at para. 137).

[168] The report of Aaron Blake Evans refers to Andrew Paull’s recommendation to Chief Inspector Ditchburn, which includes the term Moochuchulth, as well as excerpts from H. H. Browne’s survey book. His maps indicate that DL 825 and TL 3558P are located at or near the head of Pretty Girl Cove; DL 672 is just south of the head of the cove.

[169] H. H. Browne’s survey of DL 672 was undertaken in 1925. His survey book (Exhibit 35, Tab 16) states: “‘Moo-chat-chitz’ is the Indian name of the locality. ‘Moochatchila’ is suggested for Creek. It drains Ellen Lake.” Ellen Lake is located to the south and east of the head of Pretty Girl Cove (Exhibit 1; Exhibit 26, Aaron Blake Evans’ map of Pretty Girl Cove). H. H. Browne’s survey notes do not indicate any houses, settlements, or other structures on the land. H. H. Browne’s recording of Indigenous names for the location suggest that an Indigenous group used the site but does not support a finding of an Indigenous village. Moreover, the survey does not clarify whether the site was used by the Manhousaht or the Hesquiaht First Nation. According to Evans’ map (Exhibit 26, map at section 6), DL 672 is slightly south of the claimed area on the eastern side of the cove so the fact that no houses or structures were reported is not dispositive of the issue; there may have been houses at the head of Pretty Girl Cove. Further, the notes of H. H. Browne were made three years after 1922 so they are not necessarily accurate in determining a cognizable interest in 1922.

[170] While the exact date of occupation by the Ahousaht is not clear, by 1922 there was evidence that the land requested at Pretty Girl Cove was an Ahousaht settlement. Canada suggests that it would have been reasonable for Chief Inspector Ditchburn to conclude that any “Indian houses” at the head of Pretty Girl Cove were recent as the Ahousaht “had not requested this location before the [McKenna-McBride] Commission, and instead the Hesquiaht had applied for this site” (Respondent’s written submissions at para. 131).

[171] Canada’s submissions are consistent with Adrian Clark’s expert evidence. In his report, Clark states that “the limited historical information … suggests that [the Claimant] likely occupied [the head of Pretty Girl Cove] in 1922” when they made their request to Chief Inspector Ditchburn (Exhibit 28 at p. 17).

[172] Based on the oral history evidence (Hearing Transcript, May 1, 2019, at pp. 15, 21, 19, 21), the fact evidence of Aaron Blake Evans, and the opinion evidence of Canada’s expert witness, Adrian Clark, I find that when the Ahousaht made their request to the Ditchburn-Clark Review, the Ahousaht regularly used the head of Pretty Girl Cove for harvesting food, including game, fish, clams and berries and their members had built three homes in the area. Thus, in 1922 the Ahousaht had a specific Indigenous interest in the area claimed at the head of Pretty Girl Cove.

[173] On August 24, 1922, the Ahousaht met with Andrew Paull of the Allied Tribes and requested “twenty acres at the Head of Pretty Girl Cove where there is at present three Indian houses, and the place is called Moochuchulth, where there is some a[ra]ble land” (Exhibit 32, Tab 219). On October 13, 1922, Paull wrote to Chief Inspector Ditchburn requesting the same. Paull wrote “I recommend that the twenty acres applied for, at the head of Pretty Girl Cove, Sydney Inlet be allowed, as it is an old Indian Village site and some a[ra]ble land as well as a fishing station” (Exhibit 32, Tab 223; ASF at para. 100). Ditchburn identified this request as a duplicate of the request made by the Hesquiaht First Nation before the McKenna-McBride Commission (Exhibit 28 at p. 86). The typed page was annotated in handwriting indicating that it was refused due to an existing timber licence (Exhibit 32, Tab 219).

[174] Based on this documentation, Canada was made aware of Ahousaht’s interest in the land at Pretty Girl Cove in 1922. This interest was capable of being known to Canada because Chief Inspector Ditchburn was Canada’s representative in the Ditchburn-Clark Review process. To the extent that Canada did not know the exact nature of the interest, Canada was capable of ascertaining that interest with some investigation. This last point is important because a First Nation’s cognizable interest is vulnerable to the Crown’s discretion, in that Canada has control over the identification of historically and habitually used land.

[175] Canada was aware, or with ordinary diligence should have been aware, of the Ahousaht’s interest in the claimed land. The Ahousaht had a cognizable interest in the area claimed at the head of Pretty Girl Cove by 1922. This aspect of the test is satisfied.

[176] In the reserve creation process in British Columbia, it is well established that Canada assumed discretionary control over First Nations’ cognizable interests in land. This concept is discussed in more detail in the Legal Principles section above. In 1922, Canada had discretionary control over the land claimed at the head of Pretty Girl Cove.

[177] Canada has a fiduciary duty to a First Nation in cases where the First Nation has a cognizable interest in land, and the Crown has undertaken discretionary control of that interest (Wewaykum at paras. 83, 85; Williams Lake SCC at para. 44; Kitselas at paras. 48, 126–27). This concept is discussed in more detail in the Legal Principles section above.

[178] By 1922, Canada had knowledge of the Ahousaht’s interest in the land at the head of Pretty Girl Cove. Therefore, the Ahousaht had a cognizable interest in Pretty Girl Cove. Canada assumed discretionary control over this cognizable interest through the reserve creation process. Based on these three factors, by 1922 Canada had a fiduciary obligation to the Ahousaht regarding this land.

[179] The Ahousaht claim that Canada breached its fiduciary duty to them with respect to Pretty Girl Cove. The Claimant relies on Aaron Blake Evans’ evidence that land at and near the area the Ahousaht requested for reserve creation could have been made available if Crown officials had followed up with the Province to determine changes in the status of land.

[180] Aaron Blake Evans states at page 8 of his research summary report (Exhibit 26) that “DL[s] 652 and 825 are located at the head of Pretty Girl Cove, and were first subject to application and then Timber Lease as early as 1905.” DL 652 is west of the area claimed by the Ahousaht and is not an issue before me. Evans acknowledges DL 825 was not available in 1914 when the McKenna-McBride Commission made its decision regarding the Hesquiaht First Nation’s application (Exhibit 26 at p. 8). This aligns with other evidence of the early timber leasing process. The 1905 and 1909 surveys for timber leasing applications at the head of Pretty Girl Cove were available to the McKenna-McBride Commission. There is no suggestion that the timber leases were improperly granted in between 1905 and 1909.

[181] Aaron Blake Evans acknowledges that the land north of Pretty Girl Cove, TL 3559, remained alienated in 1922. However, he states that the land which had been subject to TL 3558P had never been surveyed and by 1913 or 1914 it had reverted to timber reserved Crown lands. As Evans puts it, part of the claimed land:

[182] Aaron Blake Evans’ evidence is that at the time of the Ditchburn-Clark Review the land just south of Camp Creek Lake encompassed a portion of the lands sought to be added as reserve land at Pretty Girl Cove (see map at paragraph 169 of these Reasons (Exhibit 26, map at section 6)). From this map, the area below DL 825 and part of TL 3558P encompassed some of the land claimed by the Ahousaht. Evans states that land at Pretty Girl Cove “could have been removed from the timber reserve in favour of the Ahousaht land application” (Exhibit 26 at p. 8). I note this is an opinion and Evans is a fact witness, meaning that I cannot rely on it.

[183] Relying on Aaron Blake Evans’ research, the Claimant contends that the lands around the Ahousaht settlement on the south shore of Pretty Girl Cove and within the lapsed TL 3558P should have been removed from the timber reserved Crown lands and allotted to the Ahousaht (Exhibit 26 at p. 8).

[184] In response to questions asked during his expert testimony, Adrian Clark wrote to the Tribunal on May 25, 2022. He agreed that TL 3558P on the 1920 map was marked as Crown land. His map on page 2 of the letter shows that the head of Pretty Girl Cove is marked as DL 825 and TL 3559P, as well as TL 3558P just directly south of TL 3559P. He states: “Pretty Girl Cove is not marked on this sketch, but it is located at the head of the bay marked as ‘North Bay.’” Clark further states: “The sketch shows lands at the head of Pretty Girl Cove marked as ‘L.825 T.L. 3559P’ and another parcel directly to the south (below) L. 825 marked as ‘T.L. 3558P.’” He notes the timber licence wraps around the west side of Ellen Lake. Lastly, Clark states at page 3 of his letter: “Paull appears to have marked this application on the map as being an application for land on Lot 825, TL 3559P.”

[185] I disagree with Adrian Clark’s characterization of the area claimed. Reviewing the map at Exhibit 32 (Tab 224), Andrew Paull circled the location of the requested lands with a large black felt pen so that the exact location of the lands cannot be determined. The markings on the map may have been intended to show the general area claimed, rather than to identify the exact location. If a reserve was approved, the lands would have been surveyed later to demarcate the specific boundaries. In other cases, including the request for the addition to Quortsowe IR 13, Paull appears to have identified the area claimed with the same thick black pen and the exact location is not legible. It is not possible from Paull’s map to determine whether he intended to indicate that the Ahousaht was only applying for land in DL 825, TL 3559 or whether it was also applying for land in TL 3558P. Aaron Blake Evans’ map at section 6 of Exhibit 26 (see paragraph 169 of these Reasons), shows the land claimed by the Ahousaht as a red circle around land in DL 825 in both TL 3559 and TL 3558P. I believe this is a reasonable interpretation.

[186] Adrian Clark says he cannot definitively answer whether TL 3558P was available Crown land in 1922 as the 1920 map may not be accurate. In his report, he is silent as to whether part of the claimed area could have fallen within TL 3558P.

[187] I have carefully reviewed the maps at Exhibit 1, Exhibit 31 (Tabs 104 and 105), Exhibit 32 (Tab 228) and Exhibit 35 (Tab 16). My reading of these maps demonstrates that DL 825 and TL 3559 encompasses only half the head of Pretty Girl Cove. This is also evident in Exhibit 38, which shows where Camp Lake drains into the cove. In my view, it is most likely that the land the Ahousaht requested before the Ditchburn-Clark Review included land within TL 3558P, land which was available in 1922.

[188] To summarize, the Ahousaht take the position that the land at the head of Pretty Girl Cove which was within TL 3558P had never been surveyed, and that therefore the claimed lands should have been made available to the Ahousaht as a reserve (Claimant’s written submissions at para. 179). Adrian Clark does not address this point in his report.

[189] Based on the Land Classification Report of TL 3558P, Canada argues that the area was not “fit for agriculture” (Exhibit 35, Tab 17; Respondent’s written submissions at para. 135). At page 84 of his report, Adrian Clark states that the only good land in 1922 was alienated by TL 3559 and A.P. No. 35668. While the Ahousaht do not agree that the only “good land” was alienated, they do not dispute that the land north of Pretty Girl Cove was subject to TL 3559.

[190] The oral history evidence establishes that the Ahousaht were hunters, fishers and gatherers, not farmers. Based on their needs, the Ahousaht requested land to have access to fishing stations and “some ar[a]ble land.” As Mainville J.A. of the Federal Court of Appeal stated at paragraph 52 in Kitselas FCA:

[191] The land in the area was primarily used for hunting and fishing, not farming. If it was not “fit for agriculture” it would have been best suited for Indigenous peoples based on their “habits, wants and pursuits.” The claimed land was a place to which they were attached and in which they had a cognizable interest. Canada had a duty to consider the First Nation’s historical connection to the land as well as its present needs and occupation.

[192] In any event, the Land Classification Report was not published until 1924, after the Ditchburn-Clark Review.

[193] The Claimant contends that if the land requested was partially within the lapsed TL 3558P, it “could have been removed from the timber reserve in favour of the Ahousaht land application.” Canada responds that even if a timber licence or lease was surrendered, cancelled or terminated, the land remained unavailable for reserve allocation (Respondent’s written submissions at para. 55). This was because a notice was issued by the Province in The British Columbia Gazette on December 24, 1907, stating:

[194] Canada says that “[s]uch ‘other alienation’ included allocation as an Indian reserve” (Respondent’s written submissions at para. 55).

[195] While I accept this was provincial policy, Canada did not point to a provision in the Land Act which required that these lands could not be allotted as reserve land once surrendered, cancelled or otherwise terminated. Moreover, it is inconsistent with other evidence before me.

[196] Adrian Clark states in his report that Chief Inspector Ditchburn adopted a policy of requesting some lands subject to timber rights be allocated as “Indian” reserves (Exhibit 28 at p. 88). The question is if the requested land was partially within the lapsed TL 3558P could it have been removed from the timber reserve in favour of the Ahousaht land application. This was apparently done with DL 672, just south of Pretty Girl Cove, when a settler made an application. As Canada submits at paragraph 133 of its written submissions:

[197] This example shows that the Province could remove land from a timber reserve for “economic purposes” or when it was in the Province’s interests to do so.

[198] If the Crown, despite having made adequate inquiry, remains unaware of the cognizable interest, it is not in breach of duty by failing to allot the land as reserve land (Ahousaht 2019 at para. 48). However, once cognizable interests are identified the Crown must, at minimum, be ordinarily diligent in pursuing the interests (Ahousaht 2019 at para. 49). A fact-based examination of the circumstances will determine whether the Crown has met the standard of conduct required (Ahousaht 2019 at para. 49).

[199] At the time of the McKenna-McBride Commission, Chief Inspector Ditchburn was aware that the land at Pretty Girl Cove was found to be alienated by a timber licence, and therefore unavailable for reserve creation (Exhibit 35, Tab 8). However, without further investigation Ditchburn assumed in 1922 that the land claimed in the area of Pretty Girl Cove continued to be alienated. He therefore marked: “Refused [by Commission] See [Hesquiaht] app” (Exhibit 32, Tab 219) and did not include Ahousaht’s application on his “supplementary list” (Exhibit 28 at pp. 14, 23). The supplementary list was Ditchburn’s list of 119 recommended applications for reserves, in addition to the new and confirmed reserves recommended by the McKenna-McBride Commission. He sent the list to the Minister of Lands for British Columbia, Minister Patullo, for consideration in 1923 (Exhibit 28 at p. 88).

[200] The Ditchburn-Clark Review process was unfolding in 1922, six years after the McKenna-McBride Commission completed its final report. Chief Inspector Ditchburn, as Canada’s representative, should have investigated the status of the land requested by the Ahousaht in 1922 rather than simply accepting the conclusions of the McKenna-McBride Commission. Although Ditchburn did not have detailed land tenure information, he could have requested assistance from the Province in determining what land tenures, if any, existed over the land requested. Ditchburn reviewed a map dated 1920 which shows TL 3559 encompassing the northern half of the head of Pretty Girl Cove. The map also showed that the south portion of the land claimed was not subject to a timber lease in 1920, only two years before the Ditchburn-Clark Review process.

[201] Chief Inspector Ditchburn did not inform or consult the Ahousaht regarding his conclusion that their claimed land was restricted to TL 3559. Chairperson Slade J. emphasized that a duty of ordinary diligence cannot be met by doing nothing; it requires adequate inquiry by the Crown into the beneficiary’s interests in land (Ahousaht 2019 at para. 49). The process—not the result—is the focus of the inquiry (Williams Lake SCC at para. 73). In terms of the process, Canada also had a duty to disclose to the Ahousaht the state of discussions with the Province regarding lands needed for reserves (ʔAkisq̓nuk at para. 191). There was no such disclosure.

[202] Aaron Blake Evans’ evidence, although not available to Chief Inspector Ditchburn in 1922, was that TL 3558P lapsed into timber reserve in 1914 and that this land could have been available for reserve creation at the time of the Ditchburn-Clark Review (Exhibit 26, map at section 6). Evans’ evidence is consistent with the 1920 map in evidence. Although Evans is offering an opinion, I agree that if Ditchburn had considered more carefully the exact location of the land requested he would likely have put at least the southern portion of the land claimed on the supplemental list. There was no evidence before me that the Crown, through Ditchburn, questioned the status of TL 3558P.

[203] In ʔAkisq̓nuk, the ʔAkisq̓nuk First Nation had made a request to the McKenna-McBride Commission for an addition of 2,960 acres to a reserve. It was not granted. Grist J. held that the Crown breached its fiduciary duty at the Ditchburn-Clark Review phase of the reserve creation process by: i) failing to press the ʔAkisq̓nuk First Nation’s claim for additional land with the Province; and ii) by failing to disclose or consult with the First Nation prior to accepting the Province’s proposal to abandon the claim of the ʔAkisq̓nuk First Nation (paras. 184–85).

[204] If the Crown had made adequate inquiry in the present case, it would have clarified the specific area in which the Ahousaht had an interest. Further investigation likely would have revealed there was no timber licence registered against the land in the south portion of the land claimed at Pretty Girl Cove.

[205] Adrian Clark noted that Chief Inspector Ditchburn compiled the supplementary list in consultation with the Allied Tribes (Exhibit 28 at p. 12). That may be so but there is no evidence before me that Ditchburn asked Andrew Paull to obtain additional information before deciding to omit Pretty Girl Cove from the supplementary list. Instead, Ditchburn simply accepted that the land at Pretty Girl Cove was not available for reserve creation. He did so without further investigation and without informing the Ahousaht of his conclusion. He did not attempt to consult with the Ahousaht people regarding the issues their application raised.

[206] Canada emphasized that the Ditchburn-Clark Review was an “office review” that assessed applications in reference to existing records and maps (Hearing Transcript (testimony of Adrian Clark), May 9, 2022, at p. 97; see also Exhibit 32, Tab 222 (letter from Andrew Paull to Chief Inspector Ditchburn dated October 13, 1922)). I appreciate that the Ditchburn-Clark Review process reviewed the final report of the McKenna-McBride Commission and no witnesses testified. Adrian Clark advised the Tribunal that Chief Inspector Ditchburn and Major Clark met in government offices in Victoria, assessed the applications, and referred to land records and maps. They likely did not review the Pretty Girl Cove claim as a team because Ditchburn did not place that claim on the supplementary list that was shared with Major Clark.

[207] In my view, Chief Inspector Ditchburn was influenced by the provincial government’s less than liberal approach to land claimed by Indigenous peoples. Ditchburn acknowledged that he had eliminated from his list “large territorial requests which the [P]rovince had persistently refused for many years” (Exhibit 28 at p. 87). For example, Ditchburn “cut down the applications of the Committee of the Allied Executive to an irreducible minimum” (Exhibit 32, Tab 231; Exhibit 28 at p. 89). By reducing the list to an “irreducible minimum,” he hoped that the Province would agree to some of the requests (Hearing Transcript, May 9, 2022, at p. 78). As Adrian Clark emphasized at pages 87 and 88 of his report:

[208] The above passage demonstrates that Chief Inspector Ditchburn was influenced and limited by the Province’s policies at the time.

[209] I recognize that Canada repeatedly requested that the Province consider Chief Inspector Ditchburn’s supplementary list. According to Adrian Clark, Canada approached representatives of the Province eight times between 1923 and 1926. Moreover, the Province rejected all of the requests included in Ditchburn’s supplementary list (Hearing Transcript, May 9, 2022, at pp. 14, 49).

[210] Even if it was unlikely that the Province would agree to grant the request, the federal Crown, as fiduciary, had a duty to advance the request on behalf of its beneficiary. A person of ordinary prudence managing their own affairs would have advanced Ahousaht’s request even if it was unlikely to succeed. Canada had the ability to press the Province to assist in considering other options, such as determining whether the timber licence had lapsed and, if not, watching to see if the land sought might become available at a later date as the land’s status changed.

[211] A person of ordinary diligence in managing their own affairs would not have simply omitted Pretty Girl Cove from their list based on a finding made approximately six years earlier by the McKenna-McBride Commission that the land was unavailable. Had Chief Inspector Ditchburn acted in the best interests of the First Nation beneficiary, he would have made adequate inquiry regarding the location of the Ahousaht claimed site. In 1922, the Crown was aware that the land was used and occupied by the Ahousaht. In accordance with its fiduciary duty, Canada should have more diligently pursued the Ahousaht’s application for reserve land with the Province. This was especially important because, as Adrian Clark admitted in cross-examination, Canada recognized that the Ditchburn-Clark Review process was to be the First Nations’ last chance at obtaining additional reserve land.

[212] In his Report, Aaron Blake Evans states that DL 1094, which was not in the direct area of the claim land, could have been available for reserve creation on September 9, 1926. On this date, a survey related to an application to purchase land at Pretty Girl Cove was cancelled, and the application did not proceed (Exhibit 26 at p. 8). As Evans’ states, while this land appeared not to be available, Crown officials could have made it available if they had “looked and realized that the private application to purchase [it] was dormant after 1913” (Exhibit 26 at p. 8). Evans also states that DL 672, land south of the cove, was not surveyed until 1925, so presumably it was available. Both Adrian Clark and Aaron Blake Evans testified that DL 672 was originally subject to TL 3558P. The 1920 map at Exhibits 1 and 38 no longer show a timber licence over DL 672.

[213] The Crown’s fiduciary duty arises with respect to land in which the Ahousaht has a cognizable interest (Wewaykum at para. 85; Williams Lake SCC at paras. 80–81; Kitselas FCA at para. 54). The question of whether other land may have been available in the area in 1914 is generally not relevant to the question of whether Canada breached its fiduciary obligation with respect to the claimed land. In Williams Lake SCC, Wagner J. (as he then was), writing for the majority, made it clear that the fiduciary duty in reserve creation is related to a First Nation’s cognizable interest in specific land. As he explained at paragraphs 73 and 89:

[214] The question is whether the Crown’s fiduciary duty arose in 1922 with respect to the land at Pretty Girl Cove in which the Ahousaht had a cognizable interest. There was no evidence before me that the Ahousaht had a cognizable interest in the land at DL 1094 or DL 672. Aaron Blake Evans agreed on cross-examination that the fact that land was available elsewhere does not necessarily mean that land would have been useful to the Ahousaht when they had requested specific sites for specific purposes (Hearing Transcript, October 8, 2020, at pp. 87–88). In addition, the issue of alternative lands does not properly arise on the pleadings and it was not included as an issue in the Agreed Statement of Issues.

[215] I find that a fiduciary duty did not arise with respect to the alternative lands identified by Aaron Blake Evans.

[216] The Ahousaht had interests in the area of Pretty Girl Cove since at least the late 1800s. Their members used it for many reasons including seasonal hunting, fishing and gathering.

[217] Pretty Girl Cove is in a remote location. There is no evidence that the Ahousaht asked Commissioner O’Reilly to create a reserve at the head of Pretty Girl Cove in 1889. Despite the Ahousaht being aware of the McKenna-McBride Commission process, they did not apply for land at Pretty Girl Cove in 1914 before the McKenna-McBride Commission. Rather, it was the Hesquiaht First Nation who applied for land at Pretty Girl Cove before the McKenna-McBride Commission.

[218] In Ahousaht 2019, Chairperson Slade J. noted that the Crown cannot have discretionary control over an interest in land that it does not know to exist (para. 29). Prior to 1922, the evidence discloses that the Ahousaht had not informed or attempted to inform the Crown of their interest in Pretty Girl Cove. For these reasons, prior to 1922 the Ahousaht did not have a cognizable interest in Pretty Girl Cove and the Crown did not breach a fiduciary duty to the Ahousaht in 1914.

[219] By 1922, however, the evidence demonstrates that the Ahousaht used and occupied the land claimed at the head of Pretty Girl Cove and they had built homes in the area. The Ahousaht had an interest in the land requested at Pretty Girl Cove at the time of the Ditchburn-Clark Review process.

[220] In 1922, through Andrew Paull, the Ahousaht requested reserve land at the head of Pretty Girl Cove. Through the Ditchburn-Clark Review process, the Crown was informed of the Ahousaht’s interest in the Pretty Girl Cove site. Based on use and occupation, as well as Crown knowledge of their interest, the Ahousaht had a cognizable interest in the land. In 1922, a fiduciary duty arose.

[221] I find that in 1922, Canada breached its fiduciary duty to the Ahousaht with respect to Pretty Girl Cove by:

[222] Canada breached its fiduciary duties in the reserve creation process with respect to the site claimed at Pretty Girl Cove pursuant to paragraph 14(1)(c) of the SCTA.

[223] The northwest Vargas Island part of the Claim concerns an alleged breach of the Crown’s sui generis fiduciary duty in the context of the reserve creation process. Functionally, this part of the Claim rests on a disputed question of fact: whether there was an Indigenous settlement on the land the Ahousaht requested at northwest Vargas Island before a pre-emption application was filed for the land. Based on the Land Act, 1911, pre-emption applications were the means through which settlers could apply for land.

[224] If the land was subject to an Indigenous settlement when the pre-emption application was filed, the pre-emption application should not have proceeded because the Land Act, 1911, prohibited pre-emptions on lands that were Indian settlements. Only “unoccupied and unreserved Crown lands” that were not Indian settlements were available for pre-emption (subsection 7(1) of the Land Act, 1911). If land was already “lawfully held by pre-emption” before Indigenous peoples used and occupied the land, the land was not available for reserve creation (section 127 of the Land Act, 1911).

[225] On February 27, 1912, Freeman Hopkins applied for a pre-emption of “160 (more or less) acres” of land on northwest Vargas Island (Exhibit 30, Tab 48). On May 18, 1914, Ahousaht members testified before the McKenna-McBride Commission that the Ahousaht had settled this land prior to Hopkins’ application. On March 1, 1915, Hopkins received a Crown grant for 130 acres in the requested region on northwest Vargas Island.

[226] In what follows, I find that, on balance, the evidence indicates that there was an Ahousaht settlement on the disputed land prior to Freeman Hopkins’ application. The Crown owed the Ahousaht a fiduciary duty in respect of the disputed land and failed to exercise the required diligence with respect to the Ahousaht’s cognizable interest in the land.

[227] The Ahousaht argue that there was an Indian settlement on the land on which Freeman Hopkins sought a pre-emption, and that the Crown had a fiduciary duty with respect to the land.

[228] The Claimant contends that Canada breached its fiduciary duty by failing to fully investigate and challenge Freeman Hopkins’ pre-emption after it became aware of the competing claim (Claimant’s written submissions at paras. 204–07). The Claimant says Canada relied on incorrect information in a letter from the provincial Department of Lands that indicated there were no “Indian improvements” on the land (Exhibit 34, Tab 61). Had the McKenna-McBride Commission investigated further, it would have discovered this was incorrect and that the pre-emption by Hopkins was illegal due to the provisions of the Land Act, 1911. Consequently, Canada breached its fiduciary duty to the Ahousaht with respect to their claim at northwest Vargas Island.

[229] Canada recognizes there is conflicting evidence as to whether an Ahousaht man built a house on the land in question before Freeman Hopkins arrived or whether he pre-empted the land before the Ahousaht house was built (Respondent’s written submissions at paras. 114, 117). However, Canada argues that the evidence does not demonstrate the Ahousaht had a cognizable interest in the land on Vargas Island sufficient to establish a fiduciary duty.

[230] Canada argues that if a fiduciary duty is established, Canada met its fiduciary duty of ordinary diligence through the McKenna-McBride Commission process and through its subsequent investigations into the matter.

[231] Canada says that in the McKenna-McBride Commission proceedings, the prospect that there was an Ahousaht settlement on the land applied for by Freeman Hopkins was raised. The McKenna-McBride Commission investigated the matter by requesting survey records and field notes from the provincial Deputy Minister of Lands as well as further written information from an Indian agent involved in the matter (Respondent’s written submissions at para. 118). Canada argues that as a fiduciary it is required to meet a prescribed standard of conduct, which it met; it is not required to deliver a particular result (Williams Lake SCC at para. 48).

[232] On May 18, 1914, Chief Billy of the Ahousaht testified before the McKenna-McBride Commission regarding the Ahousaht’s request for a reserve on northwest Vargas Island. Chief Billy said that an Ahousaht man had built a house and was living there one year before Freeman Hopkins came in 1912. According to Chief Billy, the Ahousaht man left for a while and when he returned Hopkins was living in his house. Hopkins told the Ahousaht man to leave. Chief Billy also testified that the Ahousaht “used to live on Vargas Island a long time ago” and that the land where the houses are “was cleared by the Indians a long time ago.” Chief Billy advised the Commission that the Ahousaht wanted to keep the land where their houses were and did not wish to sell it.

[233] The transcript of this portion of the testimony before the McKenna-McBride Commission is as follows:

[234] On February 27, 1912, Freeman Hopkins made a declaration before a magistrate in connection with his application for a pre-emption of approximately 160 acres of land near the northwest corner of Vargas Island. His declaration in his application included the statement that the land applied for was “unoccupied and unreserved Crown lands (not being part of an Indian Settlement)” (Exhibit 30, Tab 48; Exhibit 28 at p. 38). A sketch of the parcel of land applied for and attached to the application does not show any improvements. On March 7, 1912, the acting stipendiary magistrate, H. C. Rayson, forwarded Hopkins’ application to the Deputy Minister of Lands using a printed form letter. It stated that “[t]his land is now clear and I do not know of any reason why this application should not be allowed” (Exhibit 30, Tab 49). On the same date, a certificate of pre-emption was issued to Hopkins for the land (Exhibit 30, Tab 50).