Canada v. Williams Lake Indian Band

Canada v. Williams Lake Indian Band
Court (s) Database
Federal Court of Appeal Decisions
Date
2016-02-29
Neutral citation
2016 FCA 63
File numbers
A-168-14
Notes
Digest
Decision Content
Date: 20160229
Docket: A-168-14
Citation: 2016 FCA 63
CORAM:
GAUTHIER J.A.
RYER J.A.
NEAR J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by the Minister of Aboriginal Affairs and Northern Development Canada
Applicant
and
WILLIAMS LAKE INDIAN BAND
Respondent
and
COWICHAN TRIBES
Intervener
Heard at Vancouver, British Columbia, on May 11, 2015.
Judgment delivered at Ottawa, Ontario, on February 29, 2016.
REASONS FOR JUDGMENT BY:
NEAR J.A.
CONCURRED IN BY:
GAUTHIER J.A.
RYER J.A.
Date: 20160229
Docket: A-168-14
Citation: 2016 FCA 63
CORAM:
GAUTHIER J.A.
RYER J.A.
NEAR J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by the Minister of Aboriginal Affairs and Northern Development Canada
Applicant
and
WILLIAMS LAKE INDIAN BAND
Respondent
and
COWICHAN TRIBES
Intervener
REASONS FOR JUDGMENT
NEAR J.A.
Introduction [1] This is an application for judicial review of a decision of the Specific Claims Tribunal (the Tribunal) rendered by its Chairperson, the Honourable Harry Slade, on February 28, 2014 (2014 SCTC 3). In this decision, the Tribunal determined that the respondent, the Williams Lake Indian Band (the Band), had validly established specific claims against the applicant, the Crown in Right of Canada (Canada), under paragraphs 14(1)(b) and 14(1)(c) of the Specific Claims Tribunal Act, S.C. 2008, c. 22 (the Act).
[2] For the reasons that follow, I would allow the application.
Background 1. Specific Claims under the Act [3] The Tribunal was established by the Act to decide the validity of First Nations’ specific claims, and the compensation payable to First Nations for valid claims: Act, ss. 3, 6.
[4] A First Nation may file a specific claim with the Tribunal based on the grounds listed in subsection 14(1) of the Act. In this case, the Tribunal found that the Band had established valid claims under paragraphs 14(1)(b) and 14(1)(c). Paragraph 14(1)(b) allows a First Nation to file a specific claim based on a breach by the Crown of a statutory legal obligation, whether under the Indian Act, R.S.C. 1985, c. I-5, or any other legislation “pertaining to Indians or lands reserved for Indians”. Paragraph 14(1)(c) allows a First Nation to file a specific claim based on a breach by the Crown of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including fiduciary obligations arising from unilateral undertakings. These paragraphs read as follows:
14. (1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds
14. (1) Sous réserve des articles 15 et 16, la première nation peut saisir le Tribunal d’une revendication fondée sur l’un ou l’autre des faits ci-après en vue d’être indemnisée des pertes en résultant :
…
[…]
(b) a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved for Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada;
b) la violation d’une obligation légale de Sa Majesté découlant de la Loi sur les Indiens ou de tout autre texte législatif — relatif aux Indiens ou aux terres réservées pour les Indiens — du Canada ou d’une colonie de la Grande-Bretagne dont au moins une portion fait maintenant partie du Canada;
(c) a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation;
c) la violation d’une obligation légale de Sa Majesté découlant de la fourniture ou de la non-fourniture de terres d’une réserve — notamment un engagement unilatéral donnant lieu à une obligation fiduciaire légale — ou de l’administration par Sa Majesté de terres d’une réserve, ou de l’administration par elle de l’argent des Indiens ou de tout autre élément d’actif de la première nation;
…
[…]
[5] Subsection 14(2) of the Act explains that, for specific claims under paragraphs 14(1)(a) to 14(1)(c), the term “the Crown” may include the Sovereign of Great Britain and its colonies. However, where a claim relates to a legal obligation that was to be performed in an area that was not at that time, but is now, within Canada’s boundaries, “the Crown” will only mean the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became the responsibility of the Crown in right of Canada. Subsection 14(2) provides (emphasis added):
14. (2) For the purpose of applying paragraphs (1)(a) to (c) in respect of any legal obligation that was to be performed in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada.
14. (2) Pour l’application des alinéas (1)a) à c) à l’égard d’une obligation légale qui devait être exécutée sur un territoire situé à l’intérieur des limites actuelles du Canada avant l’entrée de ce territoire au sein du Canada, la mention de Sa Majesté vaut également mention du souverain de la Grande-Bretagne et de ses colonies, dans la mesure où cette obligation, ou toute responsabilité en découlant, a été imputée à Sa Majesté, ou aurait été imputée à celle-ci n’eût été les règles ou théories qui ont eu pour effet de limiter un recours ou de prescrire des droits contre elle en raison de l’écoulement du temps ou d’un retard.
2. Basic Facts [6] The Tribunal set out in great detail the factual background of this case, and the facts material to this application are largely not in dispute. I will therefore only briefly summarize the salient details.
[7] The claims at issue concern events dating back to colonial times, before British Columbia joined Canada. The claims relate to the actions of the colony of British Columbia (the colony) and of Canada in relation to lands near Williams Lake, British Columbia.
[8] The Band is one of 17 communities of the Secwepemc (Shuswap) Nation. The Band traditionally occupied a large territory around Williams Lake, travelling throughout this territory and using it for different purposes depending on the season. For ease of reference, I adopt the Band’s term “Village Lands” to refer to these lands which are described at paragraph 4 of the Tribunal’s Reasons as including “Williams Creek, Scout Island, the Stampede Grounds, the downtown core of the City of Williams Lake, and a plateau north of the downtown core”. No metes and bounds description of the Village Lands exists, as they were never marked off or surveyed.
[9] At the heart of the Band’s claim are two parcels of land within the Village Lands totaling 1,960 acres and known as District Lots 71 and 72 (the Lots, or Lots 71 and 72). The Lots were surveyed and have therefore been clearly defined since about 1883. The Band filed a claim in respect of the Lots with the Tribunal alleging that the colony had failed to meet its legal obligation to prevent settlers from pre-empting land on those Lots on which their settlements were located, and that Canada failed to meet its legal obligations to the Band once British Columbia joined Canada.
[10] The Band’s claim is not a claim based on title to the Village Lands. The possession and occupation of the Village Lands only provide context to determine whether the land pre-empted on the Lots was part of an Indian settlement excluded from pre-emption under Proclamation No. 15.
a) Events Prior to 1871 [11] The Tribunal, beginning at paragraph 21 of its Reasons, detailed the evidence on the development by British Columbia of colonial policies on the creation of Indian reserves. This evidence included communications from as early as 1849 suggesting that lands traditionally used by Indians should be reserved.
[12] In 1858, the colony of British Columbia was established, and James Douglas was appointed its Governor. In February 1859, Douglas issued Proclamation No. 13. This Proclamation asserted the Crown’s ownership in fee simple of “[a]ll of the lands in British Columbia, and all the Mines and minerals therein”, and also provided that:
It shall also be competent to the Executive at any time to reserve such portions of the unoccupied Crown lands, and for such purposes as the Executive shall deem advisable.
[13] A communication from Douglas to E.B. Lytton, Secretary of State for the Colonies, dated March 14, 1859, included a proposed Indian reserve policy. Later that year, on October 1, 1859, Douglas issued a circular to the Magistrates and Gold Commissioners of British Columbia advising them of pending legislation that would allow settlers to record pre-emptions on unsurveyed Crown lands but specifying that certain lands, including Indian villages, would be excluded from settlement.
[14] On January 4, 1860, Douglas issued Proclamation No. 15, which was given the force of law on January 12, 1860. This law was issued to regulate the settlement of lands in mainland British Columbia and to set the terms under which settlers could record an interest in the as of yet unsurveyed lands of the colony: Reasons of the Tribunal at paras. 35-36. Section 1 prescribed and limited the lands available for pre-emption:
That from after the date hereof British subjects and aliens who take the oath of allegiance to Her Majesty and Her successors, may acquire unoccupied and unreserved and unsurveyed Crown Lands in British Columbia (not being the site of an existent or proposed town, auriferous land available for mining purposes, or an Indian Reserve or settlement, in fee simple) under the following conditions: …
(Emphasis added.)
[15] Between April 1860 and May 1861, 680 acres of land within the Lots was pre-empted or purchased from the Crown: applicant’s Memorandum of Fact and Law (MFL) at Appendix 3 (as amended at the hearing and agreed to by both parties). In May of 1861, the Gold Commissioner and Magistrate for Williams Lake, Phillip Nind, wrote to Douglas that “the available farming land has been pre-empted and purchased and it is probable that before the summer is over it will all be taken up”. Nind sought instructions with respect to the marking of a reserve for the Band. Douglas responded that Nind should “mark out a Reserve of 400 or 500 acres for the use of the Natives in whatever place they may wish to hold a section of land”: AR Vol. 1, Tab 1a at 126, para. 4. Nind did not do this, for reasons that are unknown.
[16] On August 27, 1861, the Pre-emption Consolidation Act came into force, repealing Proclamation No. 15. It contained provisions relating to Indian settlements which were similar to those in Proclamation No. 15.
[17] Two further pieces of land situated in the Lots were pre-empted in November 1861 and in March 1862, bringing the total land pre-empted within the Lots to 1,000 acres. There is no evidence of any other pre-emptions in respect of the Lots.
b) Events Following British Columbia’s 1871 Confederation with Canada [18] In 1871, British Columbia became a Province of Canada pursuant to the Terms of Union, 1871, R.S.C. 1985, App II, No. 10 (the Terms of Union), a constitutional document. Article 1 of the Terms of Union provides, in part: “Canada shall be liable for the debts and liabilities of British Columbia existing at the time of Union”.
[19] Article 13 of the Terms of Union provides:
The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union. To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.
[20] In 1876, a joint commission between Canada and British Columbia, called the Joint Indian Reserve Commission, was established to deal with the allotment of Indian Reserves. This commission was disbanded in 1878 before it could complete its work. It did not deal with the allotment of a reserve to the Band: AR Vol. 14, Tab O at 3762, para. 130.
[21] In November 1879, the Band’s Chief wrote an open letter to the British Daily Colonist that was published with comments, claiming that his people were threatened with starvation because “white men have taken all the land and all the fish”. The letter requested that the Commissioner (Gilbert Sproat) visit Williams Lake to allot land to the Band without further delay.
[22] In March 1881, Canada finalized the purchase of the Bates Estate, which the Band Chief referred to in his letter and which had come up for sale in January 1880.
[23] In June 1881, Peter O’Reilly, who had been Commissioner since July 1880, visited Williams Lake to move forward with the allotment of reserves to the Band. At that time, the Band consisted of 50 men, 38 women, 59 children, 211 horses and 39 cattle: AR Vol. 1, Tab 1a at 148.
[24] In June 1881, Commissioner O’Reilly allotted 14 reserves (the Allotment Lands) for the Williams Lake Indians totalling between 4,100 and 4,600 acres: Reasons at paras. 14, 15, 311, 313; applicant’s MFL at paras. 1, 119, 129. The Allotment Lands included land from the Bates Estate and other public lands, and contained two streams and a small lake, as well as seven small graveyard reserves. Most of the graveyard reserves were located on or near Lots 71 and 72. Other than the gravesites, the Allotment Lands did not include any of the Village Lands.
3. Decision of the Tribunal [25] The Tribunal determined that the Band had established specific claims based on events both before and after the colony of British Columbia joined Canada. The Tribunal found Canada liable under paragraph 14(1)(b) for breaches of legislation and fiduciary duty by the colony, and liable under paragraph 14(1)(c) for a breach of fiduciary duty by Canada.
[26] Proceedings before the Tribunal were bifurcated into liability and damages portions, and the damages portion is being held in abeyance pending the disposition of this application.
[27] I will discuss the Tribunal’s reasons in more detail in my analysis.
Issues [28] In my view, the issues before this Court are whether:
there was a breach of legislation by the colony; there was a breach of fiduciary duty by the colony; if the above breaches occurred, they constitute valid claims under paragraph 14(1)(b) of the Act; and a valid claim under paragraph 14(1)(c) arising from a breach of fiduciary duty by Canada was established, and whether the subsequent actions of Canada in creating a reserve for the Band remedied any possible earlier breaches by the former colony.
[29] In my view, the determinative issue that this Court must decide is whether the actions of Canada subsequent to the colony of British Columbia entering Confederation pursuant to the Terms of Union, remedied any possible earlier breaches by the colony and in so doing fulfilled any possible fiduciary duty owed to the Band on the part of Canada.
Intervener Submissions [30] The intervener Cowichan Tribes submits that the colony of British Columbia set apart Indian settlement lands as provisional Crown reserves in a manner sufficient to trigger a sui generis fiduciary duty in the sense set out in Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245 [Wewaykum]. It argues that the steps taken by the colony in creating these reserves satisfy the four legal requirements to establish an Indian reserve set out in the Supreme Court of Canada decision Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816 [Ross River]. The intervener states that the colony’s failure to finalize Indian reserves constitutes a breach of a legal obligation within the meaning of paragraphs 14(1)(b) and (c) of the Specific Claims Tribunal Act. The Tribunal did not address the Ross River factors in any detail, nor is this Court required to do so. In my view, this issue should be left to another day and to a record where this issue is clearly addressed. In oral argument, the intervener also argued that this Court should address the Tribunal’s statement in obiter at paragraph 149 that the term “Indian Reserve” in Proclamation No. 15 means “reserved” in the sense of colonial policy, not in the sense in Ross River. The parties confirmed at the hearing that it was not necessary to address this issue for the purpose of this appeal. I agree.
Standard of Review [31] In this application, the standard of correctness applies to the Tribunal’s findings on questions of law. The standard of reasonableness applies to all other findings: Canada v. Kitselas First Nation, 2014 FCA 150 at paras. 22, 35, 460 N.R. 185 [Kitselas]; Lac La Ronge Indian Band v. Canada, 2015 FCA 154 at para. 20, [2015] F.C.J. No. 813 (QL) [Lac La Ronge].
Analysis
1. Breach of Legislation [32] The first ground upon which the Tribunal concluded that the Band had established a claim under paragraph 14(1)(b) was a breach by the colony of its legislation, namely Proclamation No. 15: Reasons at paras. 136, 154, 160.
[33] In reaching this conclusion, the Tribunal addressed two main issues: first, whether Proclamation No. 15, which establishes a pre-emption system enabling settlers as well as Indians to acquire unsurveyed, unoccupied and unreserved lands, is “legislation pertaining to Indians or land pertaining to Indians” within the meaning of that phrase in paragraph 14(1)(b); second, whether a legal obligation under Proclamation No. 15 had, in fact, been breached.
[34] On the first issue, the Tribunal found that Proclamation No. 15 was indeed “legislation pertaining to Indians or land pertaining to Indians”, because its legal effect was to protect certain categories of land, including Indian settlements, from pre-emption: Reasons at para. 152.
[35] The Tribunal held that, for the purposes of assessing a claim under paragraph 14(1)(b), it is not necessary that the legislation at issue pertain entirely to Indians or land reserved for Indians, so long as some part of it does: Reasons at para. 145. The relevant question, in the Tribunal’s determination, is whether the legislation “relates or has reference to” Indians or land reserved for Indians: Reasons at para. 148.
[36] The Tribunal rejected Canada’s argument that determining whether certain legislation falls within the ambit of paragraph 14(1)(b) requires a pith and substance analysis. Canada had argued that such an analysis was required because subsection 91(24) of the Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985 App II No. 5 [Constitution Act, 1867] also uses the phrase “legislation pertaining to Indians or land pertaining to Indians”. The Tribunal held that the pith and substance analysis used in division of powers cases did not apply to its decision under paragraph 14(1)(b): Reasons at para. 145.
[37] On the second issue, the Tribunal concluded that the colony had breached Proclamation No. 15: Reasons at paras. 154, 160.
[38] The Tribunal noted that a number of pre-emptions took place in the Williams Lake area, including large portions of the Lots, beginning on April 28, 1860: Reasons at paras. 130-136. However, the Tribunal held that the Lots should have been protected from pre-emption under Proclamation No. 15 because these lands were an “Indian settlement” within the meaning of that term in colonial policy and law: Reasons at paras. 114, 136.
[39] The Tribunal determined that “[t]he colonial plan for making land available for pre-emptions reflects the policy of protection of Indian settlements”: Reasons at para. 115. The Tribunal also determined that this policy of protection—reflected in legislation, namely in Proclamation No. 13 and Proclamation No. 15, and in directions given to colonial officials— would not be effective if it applied only to settlements demarcated by colonial officials: Reasons at para. 123. The Tribunal noted that Proclamation No. 15 did not, on its face, require that land be marked out, surveyed, or formally designated in order to be protected: Reasons at para. 118.
[40] The Tribunal held that Nind, the “man on the ground” responsible for ensuring that Indian settlements were not pre-empted, was aware of the policy of protecting Indian settlements, and of the Band’s presence on at least part of the Village Lands. Moreover, Nind was instructed to mark out 400 to 500 acres as reserved land for the Band: Reasons at paras. 124-127. Nonetheless, Nind did not determine which lands the Band wished to have reserved or call into question the legality of the pre-emptions that had taken place: Reasons at paras. 128, 159.
[41] The Tribunal noted that the objectives of Proclamation No. 15 could not be met without taking steps to identify Indian settlements or challenging the pre-emptions that had already taken place. Nind, who had an obligation to carry out colonial policy, failed to do either. Accordingly, the colony breached Proclamation No. 15: Reasons at paras. 155-160.
[42] The Tribunal did not accept Canada’s argument that there must be a breach of some positive legal obligation in order to make out a claim under paragraph 14(1)(b), and that Proclamation No. 15 did not expressly place an obligation on the colony to ensure that lands claimed by pre-emption did not encroach on Indian settlements. The Tribunal held that so long as the colony was in breach of its legislation, liability results under paragraph 14(1)(b): Reasons at paras. 153-154.
[43] Canada submits that the Tribunal erred in finding that the pre-emptions that occurred on the Village Lands constituted a breach of Proclamation No. 15 and that this breach constituted a valid claim under paragraph 14(1)(b) of the Act.
[44] Canada maintains its argument from the Tribunal proceedings that the colony did not breach colonial legislation because this legislation did not impose on it any positive legal obligations to the Band, such as a duty to investigate Indian settlements or to refuse pre-emption claims where such claims were made in respect of Indian settlements. Canada argues that any breaches of pre-emption legislation that may have occurred were breaches by settlers, for which the colony was not liable. Canada adds that the pre-emption legislation provided remedies to anyone claiming that a pre-emption was illegal.
[45] The Band submits that the Tribunal correctly and reasonably found that the colony had a duty, under its policies and laws, to protect and stake out Indian villages, settlements, and surrounding land for allotment as reserves, and to prevent the pre-emption of these lands. The Band submits that the Tribunal properly found that the objectives of the pre-emption legislation could not be achieved without the colony taking such measures.
[46] The Band argues that Canada’s approach to this issue is inappropriately technical, and submits that the Tribunal properly considered the historical context in interpreting the legal obligation expressed by the pre-emption legislation. The Band submits that the colony breached its legal obligation to protect Indian settlements—an obligation derived from the pre-emption legislation, together with the colonial policy that had been expressed in correspondence, instructions to officials, and promises to Indians. In short, the Band submits that the colony did not meet its obligation to implement its law and policy on the ground.
[47] In my view, to adopt the Band’s position would be to overextend the interpretation of the pre-emption legislation. It is true that statutory interpretation requires an examination of the law’s text, context, and purpose: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10, [2005] 2 S.C.R. 601. However, even if I accepted that one of the purposes of the pre-emption legislation was the protection of Indian settlements, it is questionable whether the legislation itself gives rise to a positive obligation towards the Band on the part of the colony to ensure that the provisions of the legislation were followed. In effect, the Band is asserting that a failure to enforce the provisions of the legislation against all those subject to the legislation amounts to a breach of the legislation itself by the colony. However, it is not necessary for me to decide this issue, as even if I were to accept the Band’s position in its entirety, my conclusion with respect to issue 4, namely that the subsequent actions of Canada remedied any possible breach by the colony, is determinative of this appeal.
2. Breach of Fiduciary Duty [48] The second ground upon which the Tribunal found that the Band had established a claim under paragraph 14(1)(b) was a breach by the colony of a fiduciary duty.
[49] First, the Tribunal addressed whether a breach of fiduciary duty falls within the ambit of a claim under paragraph 14(1)(b), noting that Canada had argued that claims under paragraph 14(1)(b) are limited to breaches of statutory obligations: Reasons at paras. 161-175. Although the Tribunal does not appear to explicitly answer this question, given the outcome of this case, the Tribunal’s conclusion—that a breach of fiduciary duty can indeed form the basis of a claim under paragraph 14(1)(b)—is evident.
[50] The Tribunal then began its analysis of fiduciary law. It noted that a fiduciary relationship between Aboriginal peoples and the Crown arises from the assertion of Crown sovereignty, citing Wewaykum. It determined that Crown sovereignty had been asserted in the present case, on the basis of Proclamation No. 13 and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 45, 220 N.R. 161: Reasons at paras. 176, 183-185.
[51] The Tribunal acknowledged that not all aspects of a fiduciary relationship give rise to a fiduciary duty, and outlined the two circumstances in which such a duty may exist in the Aboriginal context, citing Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 [Manitoba Metis]: Reasons at paras. 177, 181-182. In Manitoba Metis, the Supreme Court of Canada described these two circumstances as follows:
[49] In the Aboriginal context, a fiduciary duty may arise as a result of the “Crown [assuming] discretionary control over specific Aboriginal interests”: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18. The focus is on the particular interest that is the subject matter of the dispute: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 83. The content of the Crown's fiduciary duty towards Aboriginal peoples varies with the nature and importance of the interest sought to be protected: Wewaykum, at para. 86.
[50] A fiduciary duty may also arise from an undertaking, if the following conditions are met:
(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.
(Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36)
…
[51] As discussed, the first way a fiduciary duty may arise is where the Crown administers lands or property in which Aboriginal peoples have an interest: Guerin v. The Queen, [1984] 2 S.C.R. 335, at p. 384. The duty arises if there is (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest: Wewaykum, at paras. 79-83; Haida Nation, at para. 18.
The first circumstance described above is sometimes referred to as a “sui generis” fiduciary duty. The second is sometimes referred to as a “general” or “ad hoc” fiduciary duty, and is not limited to the Aboriginal context.
[52] The Tribunal also engaged in a lengthy analysis concerning the honour of the Crown: Reasons at paras. 183-214. The Tribunal considered: (1) whether a breach of the honour of the Crown had occurred; and (2) whether such a breach could give rise to a claim under paragraph 14(1)(b). Despite concluding that the colony had breached its honourable obligations, the Tribunal declined to consider whether this breach amounted to a breach of a legal obligation within the meaning of paragraph 14(1)(b) because the Band’s claim was valid on other grounds, i.e., a breach of legislation, as set out earlier: Reasons at paras. 210 and 213.
[53] Moving to the application of the fiduciary law, the Tribunal first considered the general fiduciary duty: Reasons at paras. 217-223. The Tribunal concluded that the colony “was bound as a fiduciary to put the Indian interest in their settlement lands ahead of the newcomers [sic] interest in acquiring rights of occupation to Crown land”, and that it failed to meet this duty: Reasons at para. 224.
[54] The Tribunal determined that all of the factors giving rise to a general fiduciary duty were present:
Colonial policy and law expressed an undertaking to act in the Indians’ best interests by enforcing the statutory prohibitions of pre-emptions within Indian settlements, as evidenced by the promise of Governor Douglas to large groups of Indians at Cayoosh and Lytton that reserves would be created; The beneficiaries of this undertaking were the Indian groups of the region whose settlements had not been staked out, including the Band; and The Band had a substantial practical interest in their settlements that could be adversely affected by the exercise of discretionary control of the colony.
[55] Turning to the issue of breach, the Tribunal held that the Crown did not take “the most basic steps” required to protect the Village Lands from pre-emption or set aside pre-emptions unlawfully made: Reasons at para. 222. The Tribunal noted that in order for Proclamation No. 15 to be effective, “staking out the boundaries of Indian settlements was a necessary antecedent”: Reasons at para. 218.
[56] Next, the Tribunal concluded that the colony was also bound as a sui generis fiduciary to the Band, and that the colony breached its obligations under this duty: Reasons at paras. 224-235.
[57] In making this finding, the Tribunal relied on Wewaykum, where the Supreme Court held that a fiduciary duty—albeit a somewhat limited one—may exist in respect of Indian lands before the necessary steps are taken to create a “reserve” within the meaning of that term in the Indian Act, R.S.C. 1985, c. I-5. In Wewaykum, the Supreme Court held that this duty, which pertains to lands that have been “provisionally” reserved, imposes on the Crown the obligations of “loyalty, good faith in the discharge of its mandate, providing full disclosure appropriate to the subject matter, and acting with ordinary prudence with a view to the best interest of the aboriginal beneficiaries”: at para. 86.
[58] The Tribunal found that these obligations attached to the Crown in respect of the Village Lands, because these lands were “provisionally” reserved in the manner contemplated in Wewaykum, and the two criteria from the test in Manitoba Metis had been met:
The Band had a specific cognizable interest in the Village Lands; and The colony’s pre-emption law was an exercise of discretionary control over these lands.
[59] The Tribunal determined that the “ordinary prudence” called for by this duty was an inquiry into the extent of the Band’s settlement so that the colonial law would be effective in protecting the settlement from pre-emption. Because no such inquiry took place, the colony breached its fiduciary obligations: Reasons at paras. 234-235.
[60] The Tribunal rejected Canada’s argument that the interest that the Band was asserting was actually a claim based in Aboriginal title, a matter outside of the Tribunal’s jurisdiction: Reasons at paras. 236-239. The Tribunal held that the Band was relying on Indian occupation not as a means to make out a claim in Aboriginal title, but rather because such occupation is necessary to establish its specific claims, in a manner similar to the claimant in Kitselas.
[61] The Tribunal acknowledged that the Band’s claim under paragraph 14(1)(b), as the Band had framed it, relied to some extent on Article 1 of the Terms of Union, and that Canada had argued that it was not appropriate to rely on this provision in trying to establish a colonial claim. However, the Tribunal held that it was not necessary to decide this issue: Reasons at paras. 240-243.
[62] Canada submits that the colony owed neither a sui generis, nor a general, fiduciary duty to the Band.
[63] On the issue of sui generis fiduciary duty, Canada submits that the Tribunal’s conclusion as to what area constitutes the Village Lands is insufficiently specific to give rise to such a duty. It also argues that the evidence does not support the Tribunal’s finding as to the scope of the Village Lands, which was that these lands comprised all of Lots 71 and 72, as well as “adjoining areas of indeterminate acreage”: Reasons of the Tribunal at paras. 112, 114. Canada also alleges that the Tribunal failed to assess and weigh the oral history evidence, and failed to identify the oral history evidence upon which it relied.
[64] Canada further submits that the colony did not have discretionary control over the Band’s interest in the Village Lands. It argues that the element of discretionary control is only made out where the Crown is administering lands on behalf of Indians. Canada contends that the Tribunal erred in finding that a sui generis fiduciary duty existed in a situation “well before” the circumstances in which this duty has been established in previous jurisprudence; for example: in the administration of surrendered reserve lands (Guerin v. The Queen, [1984] 2 S.C.R. 335, 55 N.R. 161); in the management of “provisionally approved reserves” (Wewaykum); or in the allotment of reserves (Kitselas).
[65] Canada submits that discretionary control was lacking in the present case because the colony was not the exclusive intermediary for dealing with challenges under the pre-emption legislation. The colony, Canada says, did not interpose itself between the Band and settlers, and did not undertake to act in the Indians’ best interests during Douglas’ speeches at Cayoosh and Lytton. Rather, the pre-emption legislation provided for a grievance mechanism whereby parties could bring concerns about pre-emptions to a local magistrate. Canada notes that Douglas spoke about this grievance mechanism during his speeches, and alleges that the Tribunal failed to address the effect of this grievance mechanism in its analysis.
[66] On the issue of general fiduciary duty, Canada submits that the colony did not give an undertaking to act in the best interests of the Band, forsaking all other interests. Canada argues that the Band did not address this element of the test for establishing a general fiduciary duty in its submissions to the Tribunal, and moreover, that the Tribunal did not have any evidence based upon which it could conclude that the colony had made such an undertaking. Canada relies on its earlier submissions to support this point, and also submits that there was evidence before the Tribunal establishing that the colony was required to consider the competing interests of the Indians and the settlers.
[67] The Band submits that the Tribunal did not err in finding that the colony breached its fiduciary duty. The Band submits that the Tribunal correctly identified the legal principles and reasonably applied the facts to the law. The Band argues that the Tribunal did not err in its weighing or description of the evidence.
[68] The Band submits that the Tribunal did, in fact, set out the obligations arising out of the colony’s fiduciary duty. Citing paragraphs 201, 204, 208, and 234 of the Tribunal’s Reasons, the Band argues that these obligations were: to inquire into the lands the Band occupied; to diligently and promptly mark out and set apart the Village Lands as reserves; and to resume or set aside the unlawful pre-emptions.
[69] The Band counters Canada’s arguments about the grievance mechanism by submitting that the possibility of bringing a dispute to a magistrate does not obviate the need to ensure that legislation is being followed. Moreover, in the Band’s submission, bringing a dispute to a magistrate was not a realistic possibility. It argues that: there was no local magistrate in Williams Lake except during Nind’s stay; the grievance mechanism was designed to resolve disputes between settlers; and the Band lacked the legal, financial, and physical capacity to bring such a grievance.
[70] It may well be that a fiduciary relationship existed between the colony and the Band. However, not all obligations between parties in a fiduciary relationship are fiduciary in nature: Wewaykum at para. 92. The issue before this Court is whether the circumstances of this case gave rise to fiduciary obligations, and if so, whether these obligations were breached. In this case, it may be that the combination of Proclamation No. 13 (the assertion of sovereignty), the policy pronouncements in Douglas’ speeches at Cayoosh and Lytton, and the pre-emption legislation (Proclamation No. 15), point to a specific cognizable Aboriginal interest and discretionary control on the part of the colony sufficient to give rise to a sui generis fiduciary duty. However, just as in issue 1, it is not necessary for me to decide this issue, as even if I accepted the Band’s position in its entirety, my conclusion with respect to issue 4, namely, that the subsequent action by Canada remedied any possible breach of an obligation owed by the colony, is determinative of this appeal.
3. Canada’s Liability for any Breaches by the Former Colony [71] The Tribunal’s treatment of subsection 14(2), which occurs in its analysis of whether the colony breached a fiduciary duty to the Band, is limited to the following paragraphs:
[161] Canada acknowledges that s 14(1)(b), read with s 14(2), makes it clear that pre-Confederation claims may be made, but argues that the causes of action are limited to breaches of statutory obligations.
[162] Section 14(2) governs the application of s 14(1)(b) “...in respect of any legal obligation that was to be performed in an area within Canada's present boundaries before that area became part of Canada.” It provides that:
“...a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became - or would ... have become - the responsibility of the Crown in right of Canada.”
[163] This places the Crown (SCTA, s. 2: “Crown” means Her Majesty in right of Canada) in the same legal position