#9150 - Crown Obligations - Aboriginal Law

Crown Obligations

Fiduciary Duty

Scope, Origins

-sources: IA, honour of Cr, interdependence of nations, historical and assumed power of Cr

-entrenched in s. 35(1), enforceable via CL, also sui generis (Rotman)

-exists bw at least 2 parties, one who possesses equitable obligations

-generally: protection of vulnerable person (Weinrib) by party exercising discretion of power to affect legal interests (Blueberry River Band; Galamos)

-thus arises from specific context of rels, not from specific category of rels or at large (Wewaykum, LAC Minerals)

-Sparrow: duty exists to supervise high degree of discretionary control assumed by Cr over FN; must include interp of historic and current rels

-Haida: where the ct has assumed discretionary control, honour of Cr gives rise to FD, need not be voluntary or consensual

-Metis Federation: honour of Cr underlies fiduciary rels but doesn’t derive from it

-Binnie- not all obligations are fiduciary; doesn’t provide a general indemnity, is very specific

-Guerin: land transfer re surrender of reserves- but not limited to this context > (Wewaykum; Sparrow)

-government funding

-Osoyoos: expropriation; inalienability of reserve land

-Gladstone: resource allocation

-exists beyond govt, e.g. band to members (Metis Fed, Chief Mtn)

-rejection of duty:

-Stony Indian band: litigation

-Virginia Fontaine Treatment Centre: defendants cannot simply be FN, need to be in an actual rels

Framework

1). Is There a Relationship?

-Weywakum: 2 step test:

- ii) id interest of dispute;

-ii) determine if Cr has assumed control of subject of dispute

- key question does discretionary power exist in a different way than w public?

-open ended, no definitive feature of rels

-interpretive approach is functional: types of rels categorized as F should be open ended; context specific

-types of rels that may have been described as such in the past do not inherently mean they are fid or are exhaustive

-need to look at particulars of rels, not parties themselves (LAC Minerals)

-examine nature and trust in rels, rels of un = power

-context outside of rels is irrelevant

-look at nature and importance of action

-parties need not be persons

-provincial crown:

-Rotman: can be argued to exist via federalism (s. 109 BNA), concept of mutual obligations

-inferred to exist in Sparrow, Bear Island (at trial), Delga (at trial), Perry

-more explicit recognition Haida, Cree School Board

2). Content of obligation:

-contextually based

-Sparrow: rels is trust like, not adversarial, must include interp of historic and current rels

-obligation involves overarching purpose of maintaining a valuable rels that arises from human interdependency

- beneficiary relies upon honesty- imposes trust like obligations

-thus monitoring of rels protects interests of individuals who rely on rels; ensures spirit and intent of rels are maintained

-attempts to equitably balance need to preserve relations by imposing conduct, but is balanced w not making duties so strict so that it discourages others from accepting fid ob

-Wewaykum: exists prior to reserve creation, but expands w reserve creation

-can take into account other public law duties of Cr but there is rule against conflict of interest:

-imposes restraints on Cr

-Cr must balance interests, if not, may be in breach- cannot cite other interests to shirk Sparrow responsibilities- FD must be considered 1st (Wewaykum)

- must provide full disclosure of its actions while acting in FD

-must account for wrongful profits

-conflict can be found in absence of malevolent actions

-judiciary may need to balance interests

-Cr successful in invoking to avoid liability in Kruger

3). Standard of Care

-Erminskine; Blueberry River: ordinary prudence

-McCloud: based on reasonable expectations re fiduciary’s expertise

-good faith, best interests, honesty, integrity

-not expected to guarantee an outcome, instead is what is understood at time

1. Causation – not really addressed in case law

5.) Remedies– not really addressed in case law

6). Defences

-i. conflict of interest- Cr cannot rely on citing other interests to negate FD (Wewaykum; Kruger)

-ii. equitable and statutory bars:

-claims often arise after, as many FN not aware of duty at time (is relatively new)

-also under previous IA, bands were precluded from commencing actions against feds

-would likely serve to hold British Cr not liable

-some prov Limitation Acts acknowledge this gap and exempt FN from lt periods

- Wewaykum: held claim is statute barred; ban is not unduly harsh

-Blueberry River affirmed catch all 30 yr limitation period in fed act; assertion of continuing breach: rejected as this would defeat purpose of limitation period

-iii. equitable doctrine of defense of laches and acquiescence

-doctrine which bars claims by asserting that too much time has elapsed or that it would prejudice other party to proceed after such a delay bc of claiming party’s acquiescence of other party’s wrongful conduct, which acts as an implied waiver

-successful only where delay is shown to cause prejudice

-time of delay is assessed to begin when knowledge of others conduct occurs; situation specific

-Wewaykum: equitable doctrine of defence of laches and acquiescence applies even if a claim isn’t barred by statute

7). Infringement:

-Sparrow test applies; duty to min impair if conflict of interest (Osoyoos)

-Sparrow framework: (onus on FN):

-PF infringement occurs if purpose or effects of state conduct unnecessarily infringe upon rights; can occur unintentionally

-factors: assess if:

- limit is unreasonable

- if it imposes undue hardship

- if it denies the preferred means of exercising the right (Sparrow)

-however, these are not determinative, only need to show a meaningful diminution of the right (Gladstone)

-if PF infringement > justification

8. Justification: (onus on Cr) (Sparrow, Gladstone) - does this replace defenses, or merge with it?

- Sparrow justification test applies (Badger)

-high standard to uphold honour of Cr

-justification required bc of goal of reconciliation

-test:

1. infringement must further a legislative objective that is compelling and substantial

-objectives directed at the purpose of reconciliation, as in s. 35(1)

-examples:

- conserving and managing natural resources (Sparrow)

-prevent the exercise of s. 35(1) rights that would cause...