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Indigenous - Fiduciary (3). 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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