Fiduciary - Indigenous. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considers whether the Crown owed a fiduciary duty to natives in the context of treaty negotiation, here considered in the context of the similar 'honour of the Crown' duty:
 There is no precedent for imposing a fiduciary duty on the Crown respecting its conduct in treaty negotiation. During such negotiation, it would be impossible and inappropriate for the Crown to forsake its own interests and those of others for those of the other party in the negotiation. Further, an Indigenous interest may be the subject of negotiations, but at the negotiation stage the Crown has not yet assumed discretionary control over the interest, which is the source of any fiduciary obligations. The doctrine of the honour of the Crown, in this context, makes it unnecessary to extend fiduciary duty into treaty negotiations. The obligations which might arise in treaty-making – loyalty, honesty, and good faith – are part of the honour of the Crown in the same context: Manitoba Metis Federation, at para. 73.The court further discusses the fiduciary issue at paras 193-202, and then concludes that no fiduciary duty existed at paras 203 to 211:
(b) Did the Crown’s breach of its treaty promise amount to a breach of fiduciary duty?
 We begin with some general observations.
 Section 35(1) of the Constitution Act, 1982, provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
 The honour of the Crown underlies the assessment of all dealings with Aboriginal peoples. The honour of the Crown requires that the Crown purposively and diligently perform its constitutional obligations and treaty promises: Manitoba Metis Federation, at para. 75; Mikisew Cree, at para. 97.
 In certain circumstances, the obligations arising out of the honour of the Crown can manifest in a fiduciary duty owing to an Aboriginal group. As noted in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  3 S.C.R. 511, at paras. 16 and 18:
The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices. A fiduciary duty may arise in two circumstances. Crown fiduciary duties to Aboriginal peoples can arise either in accordance with the sui generis test set out in Haida Nation, or according to the ad hoc test described in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24,  2 S.C.R. 261: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4,  1 S.C.R. 83, at para. 44.
The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. [Citations omitted; emphasis added.]
 In The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Saskatoon: Purich Publishing, 2015), Jamie D. Dickson characterizes an ad hoc fiduciary duty as a “conventional” fiduciary duty, as it most resembles a private law fiduciary duty. He characterizes the sui generis fiduciary duty as a non-conventional one, to mark its special application to Aboriginal peoples. We adopt his language because the Latin terms do more to obscure than clarify the common law origins of the principles.
 An ad hoc, or conventional, fiduciary duty arises where there is: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: Manitoba Metis Federation, at para. 50; Restoule (ONCA), at para. 586.
 As observed in Manitoba Metis Federation, at para. 61, a conventional fiduciary duty requires that the alleged fiduciary undertake to act in the beneficiaries’ best interests and forsake the interests of all others:
The first question is whether an undertaking has been established. In order to elevate the Crown’s obligations to a fiduciary level, the power retained by the Crown must be coupled with an undertaking of loyalty to act in the beneficiaries’ best interests in the nature of a private law duty: Guerin, at pp. 383-84. In addition, “[t]he party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake”: Elder Advocates, at para. 31.Fundamental to a conventional fiduciary duty is the obligation to act only with regard to the interests of the beneficiaries and to disregard the interests of all others: Guerin, at p. 387; Restoule (ONCA), at para. 601.
 A sui generis, or non-conventional, fiduciary duty can arise where the Crown assumes a sufficient amount of discretion over a sufficiently specific Aboriginal interest. The interest must be cognizable and the Crown’s assumption of discretion must be such that it invokes responsibility “in the nature of a private law duty”: Wewaykum Indian Band v. Canada, 2002 SCC 79,  4 S.C.R. 245, at para. 85.
 The question to be asked is whether there is an Aboriginal interest sufficiently independent of the Crown’s executive and legislative functions to give rise to a responsibility in the nature of a private law duty. If not, “then no fiduciary duties arise — only public law duties”: Williams Lake, at para. 52.
 Where a non-conventional fiduciary duty exists, the Crown is required to act with diligence and in accordance with the honour of the Crown. As Hourigan J.A. noted at para. 616 of Restoule (ONCA), quoting Brown J.’s reasons in Williams Lake, this form of fiduciary duty permits the Crown to balance competing interests:
This form of fiduciary duty imposes a less stringent standard than the duty of utmost loyalty incident to an ad hoc fiduciary duty. It requires Canada to act — in relation to the specific Aboriginal interest — with loyalty and in good faith, making full disclosure appropriate to the subject matter and with ordinary diligence. It allows for the necessity of balancing conflicting interests. [Citations omitted.] In Haida Nation, at para. 18, McLachlin C.J. likewise acknowledged that the content of the non-conventional duty may vary to account for the Crown’s other obligations:
Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. The content of the fiduciary duty may vary to take into account the Crown’s other, broader obligations. However, the duty’s fulfilment requires that the Crown act with reference to the Aboriginal group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake. [Citation omitted.] While there is a fiduciary relationship between the Crown and Aboriginal peoples, there are limits to the circumstances in which a fiduciary duty can be imposed on the Crown. As Binnie J. noted in Wewaykum, at para. 83, there must be a sufficient assumption of discretionary control by the Crown:
[I]t is desirable for the Court to affirm the principle … that not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature, and that this principle applies to the relationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to ground a fiduciary obligation. [Citation omitted; emphasis added.]And further, at para. 96, he stated that the Crown wears “many hats” and is “no ordinary fiduciary”:
When exercising ordinary government powers in matters involving disputes between Indians and non-Indians, the Crown was (and is) obliged to have regard to the interest of all affected parties, not just the Indian interest. The Crown can be no ordinary fiduciary: it wears many hats and represents many interests, some of which cannot help but be conflicting. [Citation omitted.]
(iii) Was there a breach of fiduciary duty?
 In this case, the trial judge did not err in concluding that SON had not established a conventional fiduciary duty. The treaty promise cannot be construed as an undertaking by the Crown to forsake the interests of all others in the province and act exclusively for SON’s benefit, which is an essential element of the conventional fiduciary duty test: see Galambos v. Perez, 2009 SCC 48,  3 S.C.R. 247, at para. 75; Elder Advocates, at paras. 36, 61.
 Nor did she err in rejecting the imposition of a non-conventional fiduciary duty. The nature of the promise here did not amount to direct administration of access to SON’s lands. The Crown did not control access to those lands and was not the gatekeeper. This case is far different from Guerin, where the Crown assumed all responsibility for dealing with the leasing of Aboriginal lands. Here, the treaty promise did not amount to sufficient control over access to SON’s lands to give rise to a non-conventional fiduciary duty.
 Nor was the nature of the duties required of the Crown by Treaty 45 ½ appropriate for fiduciary obligations. Here, the Crown essentially failed to adequately police trespassers. They could have done more to prosecute them. They could have passed more effective legislation. These obligations, however, are ill-suited to fiduciary obligations and are more akin to public law, rather than private law, duties.
 While the court noted in Wewaykum, at para. 86, that “[o]nce a reserve is created, the Crown’s fiduciary duty expands to include the protection and preservation of the band’s quasi-proprietary interest in the reserve from exploitation”, we sustain the trial judge’s conclusion that Treaty 45 ½ did not create a reserve. Further, even if the promise to protect SON’s lands from incursions could be viewed as analogous to the protections offered by the creation of a reserve, the promise to police and remove squatters is not sufficient to invoke a non-conventional fiduciary duty. Here, the treaty obligations agreed to by the Crown did not amount to “direct administration” of access to SON lands: Elder Advocates, at para. 53.
 The Crown failed to act with sufficient diligence in regard to the treaty promise made to SON. However, there was no question of disloyalty, abuse of power, or breach of trust, as might be associated with a traditional breach of fiduciary duty, although we recognize that the content of a fiduciary duty will vary widely depending on the relationship between the parties and the circumstances: see K.L.B. v. British Columbia, 2003 SCC 51,  2 S.C.R. 403, at para. 41.
 This was not a case where the Crown was acting in a trustee-like role in the management of Aboriginal land, as was the case in Guerin, or managing resource royalties on behalf of an Aboriginal group, as in Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9,  1 S.C.R. 222. This case is factually and legally distinguishable from Guerin, where the Crown was obliged to hold surrendered land exclusively for the benefit of the surrendering band and its obligations were in the nature of a private law duty: see pp. 385, 387.
 Here, the imposition of a fiduciary duty would add nothing to the Crown’s obligations to diligently and purposively perform the treaty promise. As observed in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53,  3 S.C.R. 103, at para. 105, the Supreme Court “has, over time, substituted the principle of the honour of the Crown for a concept – the fiduciary duty – that, in addition to being limited to certain types of relations that did not always concern the constitutional rights of Aboriginal peoples, had paternalistic overtones”.
 Where a Crown obligation is grounded in the honour of the Crown, it may not be necessary to invoke fiduciary duties; the Crown is still obliged to comply with its constitutional obligations in a manner consistent with the honour of the Crown: Mikisew Cree, at paras. 51-52.
 We agree with the trial judge that there was no additional fiduciary duty in the circumstances of this case.