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Indigenous - Fiduciary (3). Paddy-Cannon v. Canada (Attorney General)
In Paddy-Cannon v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from findings that "Canada [was] liable to the respondents for breach of fiduciary duty (both sui generis and ad hoc) and for negligence, and granted declaratory relief to that effect".
The court considers the indigenous ad hoc fiduciary duty, specifically indigenous children:(b) Ad Hoc Fiduciary Duty
(i) Governing principles
[69] While the ad hoc fiduciary duty applies in more general circumstances, it requires an explicit Crown undertaking: Jack Woodward and Ethan Krindle, Aboriginal law in Canada (Toronto: Thomson Reuters, 2025), at § 3:58.
[70] An ad hoc fiduciary duty describes fiduciary duties in cases not covered by an existing category: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, 499 A.R. 345, at para. 29. It requires 1) an undertaking by the alleged fiduciary (in this case Canada) to act in the best interests of the alleged beneficiaries (in this case the respondents); 2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and 3) that the beneficiaries have a legal or substantial practical interest that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: Elder Advocates, at paras. 30-36; Restoule, at para. 228.
[71] The first requirement refers 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 paras. 31 and 49. An alleged fiduciary owes the “utmost loyalty” to the beneficiaries: Elder Advocates, at para. 43.
[72] When the alleged fiduciary is a government such an undertaking will be “rare” because a burden of utmost loyalty “is inherently at odds with [a government’s] duty to act in the best interests of society as a whole, and its obligation to spread limited resources among competing groups with equally valid claims to its assistance”: Elder Advocates, at para. 44, citing Sagharian (Litigation Guardian of) v. Ontario (Minister of Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 47-49. Applying this principle, the Supreme Court in Restoule, at para. 232, rejected the claim of a fiduciary duty in respect of the augmentation of annuities under the Robinson Treaties because of the need to consider the “wider public interest” and broader economic conditions.
[73] An undertaking “may be found in the relationship between the parties, in an imposition of a responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interest”: Elder Advocates, at para. 32, citing Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 77. An undertaking flowing from a statute must be clearly supported by the language in the statute, and an undertaking arising by implication from the relationship between the parties is determined by focussing on analogous cases: Elder Advocates, at paras. 45-46; K.L.B. v. British Columbia, 2003 SCC 51, 230 D.L.R. (4th) 513, at para. 41. A “relationship of trust and reliance” alone does not meet the high threshold of an undertaking in the fiduciary sense: Restoule, at para. 231.
[74] Further, the alleged beneficiaries must be vulnerable to the exercise of discretionary power by the alleged fiduciary in relation to “an identifiable legal or vital practical interest that is at stake”: Elder Advocates, at para. 35. A general impact on the alleged beneficiary’s well-being, property, or security is not enough. Rather, the interest “must be a specific private law interest to which the person has a pre-existing distinct and complete legal entitlement”: Elder Advocates, at para. 51.
[75] Fiduciary obligations may overlap with liabilities in contract and tort in application. The “essence of a fiduciary relationship”, in contrast to contract and tort, is that the fiduciary exercises power on behalf of the beneficiary and pledges to act in their best interests: Lafrance Estate v. Canada (Attorney General) (2003), 2003 CanLII 40016 (ON CA), 64 O.R. (3d) 1 (C.A.), at para. 31, citing Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at p. 272, per McLachlin J. (as she then was).
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[78] Parents owe a fiduciary duty to the children in their care: M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6. It also cannot be seriously disputed that guardians owe a fiduciary duty to their wards, including when children are wards of the state and even when they are in temporary foster care, as a government agency has the power to supervise and direct their placements: K.L.B., at para. 38.
[79] Guardianship of children engages the kind of interest that is capable of being protected by a fiduciary obligation. Elder Advocates, at para. 51 describes it as “the type of fundamental human or personal interest that is implicated when the state assumed guardianship of a child or incompetent person.” More specifically for Indigenous children, their interest in maintaining their culture, language, and identity may trigger a fiduciary duty: see also First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, [2016] 2 CNLR 270, at para. 109.
[80] In my view, the respondents’ relationship with Canada at the relevant time is analogous to the guardian-ward relationship in K.L.B., in that the respondents were in de facto foster care (without a formal arrangement) which remained the case until October 1, 1969, after the events in question. As of late 1965, the respondents’ parents appeared to have deserted them and in any event had no ability to care for them. They were in the care of extended family and the housekeeper of a local priest. The care arrangements were temporary. The respondents were completely reliant on potentially unwilling caretakers who lacked financial means[4] and who had no legal authority to provide consent for urgent medical treatment. Government officials at both the provincial and federal level were not only aware of these circumstances, they actively pursued more permanent care arrangements for the respondents – at least until May 1966 when the respondents’ paternal relatives finally said they would keep the children.
[81] Against this backdrop, Canada’s criticism that the trial judge failed to specifically find an undertaking of utmost loyalty has little force. When Canada developed the return plan and put it in motion, it committed itself to act in the respondents’ best interests and attempted to do so until it shelved the plan. Most tellingly, the March 3, 1966 letter made it clear that federal officials “believe[d] it would serve in the best interests of the children if [they] were returned to their home reserve.” As I will explain, the “best interests of the child” standard does not assist in deciding whether there was a breach of the fiduciary duty, but Canada’s reference to it reveals an undertaking of utmost loyalty.
[82] Further, I reject Canada’s argument that the trial judge erred by finding an undertaking of loyalty without identifying explicit statutory authority. As discussed above, the nature of a relationship can give rise to an undertaking of loyalty: Elder Advocates, at paras. 32 and 46-47. Between the state and a few children in de facto foster care, the undertaking of utmost loyalty does not engage any legislative or policy function that requires a consideration of the broader public interest: Strohmaier v. British Columbia (Attorney General), 2015 BCSC 1189, at para. 98. Rather, the relationship belongs in the category described in Elder Advocates, at para. 49, as one “where the government duty is in effect a private duty being carried out by government”.
[83] The more difficult question in this case is whether Canada’s role in the return plan was “equivalent or analogous to direct administration of [the respondents’] interest”, which must be established before a fiduciary duty can be owed by a government actor: Elder Advocates, at para. 53.
[84] First of all, I accept that the federal government did not then, and does not now, have jurisdiction to direct or supervise the placement of Indigenous children like the respondents, or to apprehend them. As counsel for Canada pointed out, that falls within provincial responsibility. However, under the double aspect doctrine the federal government can exercise authority in relation to the “protection of the ties between Indigenous families and communities, in a spirit of cultural survival” even though the general authority over child welfare remains with the provinces: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, 488 D.L.R. (4th) 189, at para. 98 (“Bill C-92 Reference”).
[85] The various children’s aid societies themselves no doubt directly administered and supervised the placements of the respondents, who were off-reserve Indigenous children, pursuant to the Child Welfare Act, R.S.O. 1960, c 53. Under this Act, children’s aid societies were entrusted with essentially all of the direct responsibilities regarding children who need protection, with some oversight from the Minister of Social and Family Services and the Director of Child Welfare. It has been argued, and I accept, that in circumstances like these the children’s aid societies, each separately incorporated, act as the guardians of the children.[5] I note also that, in 1965, the federal government and Ontario entered into the Canada-Ontario Welfare Services Agreement (the “1965 Welfare Agreement”). Under this agreement the federal government provides funding to Ontario which allows it to extend the delivery of its existing child welfare services to “Indians with reserve status”.
[86] As it relates to the return plan, however, Canada functioned as the “exclusive intermediary” between the CAS and the maternal relatives in Saskatchewan. Neither the Hastings CAS nor the Renfrew CAS could themselves locate Marie, secure permanent homes for the respondents on reserve, or work directly with the Thunderchild First Nation to make decisions about the respondents. To the extent officials in Ontario considered the possibility of returning the respondents to their First Nation, which was not in Ontario, Canada’s jurisdiction appeared necessary. Notably, the respondents’ claim of fiduciary duty concerns not their care arrangements generally but the specific return plan, to which Canada was indispensable.
[87] The concept of “exclusive intermediary” derives from Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; and Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83. In both cases, the federal Crown could not unilaterally create a reserve due to division of power constraints. The Supreme Court in Wewaykum held that “the nature and importance of the appellant bands’ interest in these lands prior to 1938, and the Crown’s intervention as the exclusive intermediary to deal with others (including the province) on their behalf, imposed on the Crown a fiduciary duty”: at para. 97.
[88] In Williams Lake, the majority held that it was reasonable for the Specific Claims Tribunal to find that Canada breached its fiduciary duty by failing to protect lands from pre-emption. The majority explained, at paras. 76-77, that Canada’s limited discretionary power is not legally fatal to a finding of fiduciary duty:The Tribunal openly acknowledged that Canada’s discretionary power was limited by the need for provincial cooperation and that Canada could not unilaterally create a reserve. But it was open to the Tribunal to find that a fiduciary obligation arose in the absence of complete or exclusive control, provided that the federal Crown’s position as exclusive intermediary conferred a degree of control that left a cognizable Aboriginal land interest “vulnerable” to the adverse exercise of its discretion.
... [T]he nature of the discretion or power in the hands of the alleged fiduciary that will suffice to attract a fiduciary obligation may be controversial in some cases. To the extent that the power wielded by officials acting on behalf of the federal Crown at the earliest stages of the reserve creation process in British Columbia gives rise to any such controversy, the Tribunal has resolved it in a manner that aligns with the general principles of fiduciary law. The essential requirement is that the alleged fiduciary have scope for the exercise of some discretion or power to affect the beneficiary’s interests; this is the discretion or power that is restricted by the fiduciary obligation. It is also the discretion or power whose misuse the band must still prove resulted in a compensable loss. [Citations omitted. Emphasis added.] [89] While Wewaykum and Williams Lake were about the sui generis fiduciary duty and reserve land, the same rationale applies in a situation like the present appeal. As the Supreme Court wrote in the Bill C-92 Reference, at para. 99, “[c]hild welfare in the Indigenous context is not only a field in which Parliament and the provinces can act, but also one in which concerted action by them is necessary”. To the extent that the federal government’s jurisdiction is required and indeed exercised, I see no reason why the lack of complete federal control over the ultimate outcome should bar the finding of a fiduciary duty.
[90] I reject Canada’s argument that there can be no fiduciary duty here because it had no authority to exercise sufficient control over the respondents’ interests. According to Canada, the federal officials at Indian Affairs were simply writing letters pursuant to what Canada’s counsel called “general operational powers”. The trial judge, however, characterized Canada’s role as “direct[ing]” the return plan, with or without lawful authority; Canada “put in motion plans for the children’s return to the reserve” and “was making decisions in respect of the children in consultation with the Thunderchild First Nation”. Canada has not articulated how these characterizations amount to palpable and overriding errors.
[91] The stringency of the “direct administration” requirement serves to ensure that governments can act in the interests of all citizens without being paralyzed by a fiduciary’s responsibilities: Elder Advocates, at paras. 49 and 53. It requires an examination of the nature and extent of the government’s involvement with the interest of the alleged beneficiary. While Canada refers us to cases where the governing statutory scheme rightly informed the nature and extent of the government’s involvement, that does not mean that when there is no statutory authority a trial judge is precluded from focusing on the conduct of government actors.
[92] In my view, while the trial judge did not explicitly find that there was “direct administration”, her characterization of Canada’s involvement indicates that she understood the standard and was convinced that it was met.
[93] Finally, Canada should not be permitted to claim a lack of authority, after the fact, to escape liability when its officials at the time clearly thought they had authority and acted on that basis. Canada inserted itself into the respondents’ situation to such an extent that at one point, when Marie expressed her desire to have the respondents returned to her care, a representative of Canada wrote to her that “[w]hen you…have established satisfactory home conditions, we would suggest that you can then renew this request. It will then be considered in the light of the circumstances at that time”. If the federal officials did not intend to, and did not in fact, exercise discretionary control over the respondents’ situation, it is difficult to understand why they thought it appropriate to make those representations to Marie.
[94] For these reasons, the trial judge did not err in finding that Canada owed a fiduciary duty to the respondents.
(c) Did Canada breach its fiduciary duty?
(i) Governing principles
[95] The remaining question is whether Canada adequately discharged its duty to the respondents.
[96] The content of the duty owed to children under one’s care is set out in K.L.B. The majority described the parental fiduciary duty as requiring one “to act loyally, and not to put one’s own or others’ interests ahead of the child’s in a manner that abuses the child’s trust”: at para. 49. Since reasonable people will have different views about how those in the position of a parental fiduciary should advance a child’s best interests, the “unique focus” when analyzing any potential breach must be on whether the fiduciary’s decisions and conduct amount to a “breach of trust”: at paras. 46 and 48.
[97] A breach of fiduciary duty does not necessarily imply dishonesty or the pursuit of the fiduciary’s personal interests: Meng Estate v. Liem, 2019 BCCA 127, 46 E.T.R. (4th) 195, at para. 36. However, it must engage the elements of “loyalty, trust, and confidence”, which distinguishes the fiduciary duty from the ordinary duty of care underlying tortious liability: Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377, at p. 405. . Paddy-Cannon v. Canada (Attorney General)
In Paddy-Cannon v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from findings that "Canada [was] liable to the respondents for breach of fiduciary duty (both sui generis and ad hoc) and for negligence, and granted declaratory relief to that effect".
The court considered the indigenous sui generis fiduciary duty:(a) Sui Generis Fiduciary Duty
(i) Governing principles
[63] A sui generis fiduciary duty is specific to the relationship between the Crown and Indigenous peoples: Ontario (Attorney General) v. Restoule, 2024 SCC 27, 494 D.L.R. (4th) 383, at para. 233; Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44. It arises when there is 1) a specific or cognizable Aboriginal interest, and 2) a Crown undertaking of discretionary control over that interest: Restoule, at para. 234. Aboriginal rights in Canadian law have always been conceptualized as communal in nature: Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at pp. 1082-83; R. v. Powley, 2003 SCC 43, 68 O.R. (3d) 255, at para. 24.
[64] The interest in question must therefore be distinctly Aboriginal, and it must be held by an Indigenous rights holding collective rather than individually: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, at paras. 53 and 56.
(ii) Application of the governing principles to this case
[65] While the trial judge’s reasons make it clear that she found Canada owed both an ad hoc and sui generis fiduciary duty to the respondents, with respect to the sui generis duty, she did not engage the above noted longstanding and well settled principles. Furthermore, even if she had engaged with these principles and applied the proper test, the evidence was incapable of establishing a sui generis fiduciary duty.
[66] The trial judge found that Canada owed a sui generis duty on the basis that the respondents had lost their Indigenous cultural identity. This, standing alone, is insufficient to ground a sui generis fiduciary duty. The respondents’ claims do not represent a specific or cognizable Aboriginal interest that is communal in nature. They do not seek to protect an Indigenous culture or language or any communal right to their preservation; rather, their claim corresponds with an individual right to practice their Indigenous culture and to speak their own Indigenous language.
[67] The trial judge erred by relying on Belobaba J.’s class action certification decision in Brown v. Canada (Attorney General), 2013 ONSC 5637, 45 C.P.C. (7th) 186, which held that it was “at least arguable” that an interest in maintaining Indigenous culture and identity could ground a sui generis fiduciary duty. I note that Belobaba J. ultimately concluded, at para. 68 of his reasons on the summary judgment motion post-certification (2017 ONSC 251, 136 O.R. (3d) 497, “Brown summary judgment motion decision”) that a sui generis fiduciary duty could not be established since the class action sought individualized redress.
[68] Canada did not owe the respondents a sui generis fiduciary duty and the trial judge erred in so finding. . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers whether - in this case - the Crown owes ad hoc fiduciary duties to the aborginal litigants:(2) The Crown Has No Fiduciary Duties in Respect of the Augmentation Promise
(a) Introduction
[222] This Court has recognized that the Crown may owe ad hoc and sui generis fiduciary duties to Indigenous peoples in respect of certain interests. Ad hoc fiduciary duties arise as a matter of private law and require utmost loyalty to the beneficiary (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 43). By contrast, sui generis fiduciary duties are unique to the Crown-Indigenous relationship, flow from the honour of the Crown, and permit the Crown to balance competing interests (Williams Lake, at paras. 44 and 165; Hogg and Dougan, at p. 307). The plaintiffs say that both types of duties arise in this case.
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[227] Whether a fiduciary duty exists is a question of mixed fact and law (Williams Lake, at para. 38). However, specific legal errors such as the application of an incorrect legal standard are reviewable for correctness. As I will elaborate, the trial judge properly found that no sui generis fiduciary duty arises in this case, but she erred in law in finding an ad hoc fiduciary duty. I agree with the Court of Appeal that neither duty arises.
(b) No Ad Hoc Fiduciary Duty Arises
[228] An ad hoc fiduciary duty may arise from the relationship between the Crown and Indigenous peoples “where the general conditions for a private law ad hoc fiduciary relationship are satisfied — that is, where the Crown has undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of the alleged beneficiary” (Williams Lake, at para. 44). An ad hoc 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 (Elder Advocates, at para. 36; see also Manitoba Metis, at para. 50; Williams Lake, at para. 162, per Brown J., dissenting, but not on this point).
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[232] In addition, “situations where [the Crown] will be shown to owe a duty of [utmost] loyalty to a particular person or group will be rare, particularly where an exercise of a government power or discretion is at issue” (Woodward, at § 3:58). In exercising its discretion about whether to increase the annuities and, if so, by how much, the Crown must consider not only the honour of the Crown, but also the wider public interest. This is apparent from the language and nature of the Augmentation Clause, which expresses the intention of “Her Majesty . . . to deal liberally and justly with all Her subjects”, and incorporates the economic condition. In these circumstances, and absent evidence to the contrary, I cannot conclude that the Crown’s obligations regarding the Augmentation Clause involved an undertaking to forsake the interests of all others in favour of the plaintiffs.
(c) No Sui Generis Fiduciary Duty Arises
[233] I am also unable to conclude that a sui generis fiduciary duty arises. A sui generis fiduciary duty is specific to the relationship between the Crown and Indigenous peoples (Williams Lake, at para. 44, citing Wewaykum, at para. 78, Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, at p. 385, and Sparrow, at p. 1108). Its origins lie in protecting the interests of Indigenous peoples in recognition of the “degree of economic, social and proprietary control and discretion asserted by the Crown” over them, which left them “vulnerable to the risks of government misconduct or ineptitude” (Wewaykum, at para. 80).
[234] A sui generis fiduciary duty arises where there is: (1) a specific or cognizable Aboriginal interest; and (2) a Crown undertaking of discretionary control over that interest (Manitoba Metis, at para. 51; Williams Lake, at para. 44; Wewaykum, at paras. 79-83; Haida Nation, at para. 18). Unlike an ad hoc fiduciary duty, a sui generis fiduciary duty permits the Crown to balance competing interests. As Brown J. explained in Williams Lake, at para. 165 (dissenting, but not on this point):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: Wewaykum, at paras. 81 and 97. It allows for the necessity of balancing conflicting interests: Wewaykum, at para. 96. [235] A sui generis fiduciary duty does not exist at large, but rather only in relation to a specific or cognizable Aboriginal interest (Wewaykum, at para. 81; Williams Lake, at para. 52). Thus, “[t]he specific or cognizable Aboriginal interest at stake must be identified with care” (Williams Lake, at para. 52). The Huron and Superior plaintiffs identify two interests in relation to which, they argue, the Crown owes them sui generis fiduciary duties: (1) their treaty rights under the Augmentation Clause; and (2) their pre-existing interest in the ceded land, which is the source of their treaty rights under the Augmentation Clause. In my view, neither interest gives rise to a sui generis fiduciary duty. . Saulteaux First Nation v. Canada (Crown-Indigenous Relations) [fiduciary/minimal impairment]
In Saulteaux First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR against a decision of the Specific Claims Tribunal, dealing the surrender of indigenous lands in Saskatchewan.
Here the court considered whether the Crown fiduciary 'duty of minimal impairment' applies:B. Did the Specific Claims Tribunal err in determining that there was no duty of minimal impairment?
[58] Counsel for the applicant claims that the Tribunal erred when it concluded that the duty of minimal impairment is inapplicable to a surrender and therefore that there was no breach of such a duty. This concept of minimal impairment emerges from the decision of the Supreme Court in Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85 (Osoyoos). In that case, the highest court determined that the fiduciary duty of the Crown is not restricted in its application to cases of surrender. When, pursuant to section 35 of the Act, the Crown determines that an expropriation of reserve land is in the public interest, a fiduciary duty arises "“to expropriate or grant only the minimum interest required in order to fulfill that public purpose, thus ensuring a minimal impairment of the use and enjoyment of Indian lands by the band”" (Osoyoos at para. 52).
[59] As the Tribunal noted, the requirement to minimally impair does not arise until the decision to expropriate has been made. This is consistent with Osoyoos, where the Supreme Court held that no fiduciary duty exists at the stage where the Crown determines whether an expropriation involving Indian lands is required. It is only at the stage when the Crown decides to take back designated reserve land for a public purpose that the requirement to minimally impair arises. This is justified by the fact that the purpose and means by which the reserve land is transacted are different in the contexts of an expropriation and of a surrender. In the first case, the Crown makes a unilateral decision, whereas the First Nation makes an autonomous decision in a surrender. This is why the obligation to ensure consent in a surrender is replaced by an obligation to minimally impair the protected interest in an expropriation. That distinction has been made quite explicit in Southwind, where the Supreme Court clarified that "“[i]n an expropriation, the obligation to ensure consent is replaced by an obligation to minimally impair the protected interest”" (at para. 64). . Saulteaux First Nation v. Canada (Crown-Indigenous Relations)
In Saulteaux First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR against a decision of the Specific Claims Tribunal, dealing the surrender of indigenous lands in Saskatchewan.
Here the court considered the fiduciary duties "owed to Indigenous peoples in respect of surrendered reserve lands":A. Did the Specific Claims Tribunal err in finding that Canada met its pre-surrender fiduciary duty?
[35] As previously mentioned, the Tribunal first set out the law with respect to the sui generis fiduciary duty owed to Indigenous peoples in respect of surrendered reserve lands. As mentioned in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 (Guerin), where the Supreme Court of Canada, for the first time, characterized the relationship between the Crown and First Nations as a fiduciary relationship, the Crown first took this responsibility upon itself in the Royal Proclamation of 1763, and the surrender provisions of the Indian Act, R.S.C. 1985, c. I-5 (the Act) requiring that Canada consent to a surrender of reserve land still recognize this duty (Guerin at 379, 383–384; the Act, ss. 18(1)). The requirement that Canada consent to a surrender of reserve land is clearly meant to prevent First Nations from being exploited by third parties.
[36] The nature of the duty owed by the Crown when a band wishes to surrender its reserve was taken up again by the Supreme Court in Blueberry River Indian Band v. Canada (Department of Indian Affairs & Northern Development), 1995 CanLII 50 (SCC), [1995] 4 S.C.R. 344 (Blueberry). In that case, the Bands contended that the Crown should not have allowed them to surrender their reserve since this was not in their long term best interest. According to the Bands, the paternalistic tone of the Act imposes a duty upon the Crown to protect the Indians from themselves. The Court rejected that contention, being of the view that the Act strikes a balance between autonomy and protection, and reiterating that the purpose of the requirement of the Crown’s consent is to prevent exploitation, not to substitute the Crown’s decision for that of the Band. While that view was expressed in separate reasons by McLachlin J. (with the support of Cory and Major JJ.), it was endorsed by all seven members of the Court. It is also worth noting that the exploitative character, improvidence or foolishness of a surrender must be considered from the perspective of the Band at the time of the surrender, not with the benefit of hindsight (Blueberry at para. 36). Also of interest is the caveat expressed by Gonthier J., writing for the majority, that the Band’s understanding of terms of the surrender must be adequate, and that the conduct of the Crown must not have tainted the dealings to such an extent that it would be unsafe to rely on the Band’s understanding or intention (Blueberry at para. 14).
[37] In its latest pronouncement on that issue, the Supreme Court reviewed its earlier jurisprudence and summarized the Crown’s fiduciary duty applicable to the surrender of reserves in the following manner:The fiduciary duty imposes the following obligations on the Crown: loyalty, good faith, full disclosure, and, where reserve land is involved, the protection and preservation of the First Nation’s quasi-proprietary interest from exploitation. The standard of care is that of a person of ordinary prudence in managing their own affairs. In the context of a surrender of reserve land, this Court has recognized that the duty also requires that the Crown protect against improvident bargains, manage the process to advance the best interests of the First Nation, and ensure that it consents to the surrender [citations omitted]. Southwind at para. 64, cited by the Tribunal at para. 87 of its decision. . Saulteaux First Nation v. Canada (Crown-Indigenous Relations)
In Saulteaux First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2024) the Federal Court of Appeal dismissed a JR against a decision of the Specific Claims Tribunal, dealing the surrender of indigenous lands in Saskatchewan.
Here the court concludes that the JR SOR for appealing indigenous fiduciary duties is that of 'reasonableness':[31] The parties are in agreement, and rightly so, that the applicable standard of review is that of reasonableness on the first two questions. This is the presumptive standard of review when considering the merits of an administrative decision. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov), the Supreme Court indicated that this presumption will be rebutted when the legislature has opted for a different standard, or where the rule of law requires the standard of correctness. This will be the case for constitutional questions, general questions of central importance to the legal system as a whole, and for questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras. 23–25, 53, 55, 58–62, 69–70).
[32] These circumstances do not arise here, nor do they in most instances where the Tribunal rules on the scope and asserted breach of fiduciary duties owed by Canada to Indigenous peoples. The jurisprudence of the Supreme Court and of this Court in that respect has been consistent over the years (see, e.g., Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 27; Williams Lake First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 30; Witchekan Lake First Nation v. Canada, 2022 FCA 52 at para. 2; Ahousaht First Nation v. Canada (Indian Affairs and Northern Development), 2021 FCA 135 at paras. 44–45 leave to appeal to SCC refused, 39847 (3 March 2022); Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations), 2024 FCA 8 (Kahkewistahaw)). . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court briefly considers the fiduciary relationship that the Crown has with aboriginal people:[114] Further, as Lamer C.J. wrote in R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507, the fiduciary relationship between the Crown and Indigenous peoples implies that “treaties, s. 35(1), and other statutory and constitutional provisions protecting the interests of [A]boriginal peoples, must be given a generous and liberal interpretation” (para. 24, citing R. v. George, 1966 CanLII 2 (SCC), [1966] S.C.R. 267, at p. 279). In our view, the protection of Indigenous minority interests under s. 25 should be interpreted in the same spirit.
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