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Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the Crown

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Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the Crown Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the Crown David E. Elliott * The Crown's special fiduciary obligation to Canadian aboriginal peoples has offered a pliant tool for aboriginal redress against the state. The duty has two related but distinct forms, a common law form based on the Supreme Court of Canada's 1984 decision in Guerin v. R. and a constitutional form based on the Court's 1990 decision in R. v. Sparrow, The constitutional form is grounded in section 35(1) of the Constitution Act, 1982, and was incorporated into the Court's guidelines on section 35(1) justification, but the Guerin form remained more obscure. The Court has applied the Guerin duty flexibly, but has paid less attention to clarifying its scope, content and consequences. It has been unclear just what interests that duty protects, and what level and form of protection it requires. The duty is an exception to the general proposition that the Crown should be free from fiduciary duties because of its broader public obligations. In Guerin, the Court justified the exception on the basis of the "unique v independent character of aboriginal title, However, for aboriginal interests derived from aboriginal title, the Court failed to say how much independence was needed. Moreover, after Guerin, the Court tended to neglect that issue and other outer parameters of the duty. One result was a flood of Guerin·type fiduciary cases in the lower courts. In Wewaykum Indian Band v. Canada, aboriginal resettlement and competition for land, and a bizarre bureaucratic blunder, brought one of those cases to the Supreme Court, giving the Court an opportunity to address the uncertainties. In its decision in 2002, the Court held that "there are limits" to the special Crown-aboriginal duty, and that the competing claims of the Wewaykum and Wewaikai Bands fell outside those limits. In so holding, the Court said more than ever before about the special duty in its Guerin-type context. The Court referred to important aspects of the duty, such as an independent interest, an undertaking, discretionary control and vulnerability, and it drew a link between the content ofthe duty and the nature of the protected interest. For all these reasons, Wewaykum is a significant decision. Still lacking, though, is an attempt to gather up the propositions in that case and in earlier cases on the Guerin duty, and to articulate a general analytical approach to the duty. What is at stake is not just conceptual tidiness, but the need to help the COUyts maintain a reasonable balance * Professor Elliott teaches courses in public, administrative and aboriginal law at the Department of Law, Carleton University, and has worked on Yukon land claims and constitutional issues. He would like to thank the editors of the Queen's Law Journal for their helpful editorial suggestions. D. Elliott between fairness and the general duties o/the state. This article offers some suggestions toward both 0/ those goals. I. Cloud In the Crystal Ball II. Offending Dittos III. Litigation IV. Fiduciary Law Problems A. The Challenges B. Earlier Supreme Court 0/ Canada Jurisprudence C Lower Court Claims D. Disagreements Over Guerin E. Fiduciary Questions in Wewaykum (i) What Kind of Non-Section 35(1) Interest Can Be Subject to the Crown Fiduciary Duty? (ii) Is the Content of the Duty Affected by the Nature of the Protected Interest? (iii) Can the Outcome Be Affected by the Conduct of the Crown? (iv) Can the Duty Be Excluded by the Conduct of the Claimants? V. The Supreme Court of Canada's Response A. General Disposition B. "There Are Limits b C An Independent Interest D. An Undertaking, Discretionary Control, and Vulnerability E. A Specific and Significant aboriginal Interest F. Some Limits: The Scope 0/ the Duty G. Abandoning Guerin? H. Degrees o/Independence I. More Limits: The Content and Outcome 0/ the Duty VI. Lifting the Cloud A. Scope B. Content C Consequences D. Context VII. Indelible Ink Conclusion 2 (2003) 29 Queen's L.J. I. Cloud In the Crystal Ball With a "careless slip" of the hand, a government clerk forgot to remove a pair of ditto marks after recording an Indian land transfer. 1 He might have been surprised to learn that nearly a century later, his artless action contributed to a major Supreme Court of Canada decision on the fiduciary obligation of the Crown to aboriginal peoples. But law can be as unpredictable as facts. When the Supreme Court laid the foundations of the Crown's fiduciary obligation in the Guerin case in 1984 and in the Sparrow case in 1990, nobody knew how this pliant new obligation would evolve. 2 Over a decade later, the law was still being described as "unsettled. "3 In its 2002 decision in Wewaykum Indian Band v. Canada, 4 the Supreme Court tried to provide some clarification. The result: there is still cloud in the crystal balP This paper examines 1. The error occurred in 1907. See Part II, below. 2. Guerin v. R., [1984] 2 S.CR. 335 [Guerin] and R. v. Sparrow, [1990] 1 S.CR. 1075 [Sparrow]. 3. See e.g. B.C. Native Women's Society v. Canada, [2000] 1 F.C 304 at para. 20 (T.D.) [B.C. Native Women's Society]; Mikisew Cree Fint Nation v. Canada (Minister o/Canadian Heritage), [2001] F.CJ. No. 1877 at para. 127 (T.D.) (QL) (referring to justification under section 35(1) of the Constitution Ace, 1982}; Key Designs Ltd. v. Zovko, [2002] 0.]. No. 27S3 at para. 96 (Sup. Ct. Jus.) (Q.L.). In 2003, the Ontario Court of Appeal was still using the term to describe this area of law: La/rance Estate v. Canada (A. G), [2003] O.J. No. 1046 at para. 32 (Q.L.); and Bonaparte v. Canada {A. G) (2003),64 O.R. (3d) 1 at para. 32 (CA.) [Bonaparte). 4. 2002 SCC 79 [Wewaykum], aff'g Roberts v. Canada, [2000] 3 CN.L.R. 303, 247 N.R. 350,27 R.P.R. (3d) 157, [Roberts FCA], aff'g (1995), 99 F.T.R. 1 [Roberts TD). Wewaykum was preceded by Roberts v. Canada, [1989] 1 S.e.R. 322 [Roberts 1989], aff'g [1987] 2 F.e. 535 (e.A.), aff'g (1987] 1 F.e. 155 (T.D.), on a question of jurisdiction. 5. Five months after Binnie J. gave the judgment for the Supreme Court in Wewaykum, matters threatened to become still more unclear. It was discovered that, 15 years earlier, Binnie J. had been involved briefly in discussions about the Bands' claims in his capacity as Deputy Minister of Justice. Binnie J. stated that he could not recall the involvement. However, the Bands argued that the situation raised a reasonable apprehension of bias on the part of both Binnie J. and the Court. The Bands moved to vacate the judgment, and Binnie J. absented himself from all further involvement in the proceedings. On September 26, 2003, in Wewaykum Indian Band v. Canada, 2003 SCC 45, the eight Supreme Court judges other than Binnie J. rejected the bias allegations and dismissed the motion to vacate. D. Elliott 3 the complex factual and legal challenge that confronted the Court in Wewaykum, considers the Court's answers, and proposes some possible reforms. II. Offending Dittos The facts behind this important case are unusual. Each of two Bands in the Laich-kwil-tach First Nation claimed reserves on northeastern Vancouver Island that were occupied by the other. As well, each Band sued the Crown for breach of the Crown's fiduciary duty in regard to the allocation of the land for the reserves. The dispute dated back to the late 19th century. By then, the Laich-kwil-tach First Nation had displaced the Comox First Nation in this area, only to face competition for the land from non-Indian settlers.6 The government intervened and allocated several parcels of land as "reserves" for the Indians. In its Reserves Schedules, the Department of Indian Affairs listed the name of the Wewaikai (Cape Mudge) Band opposite several reserves, including Reserves 11 and 12.7 But meanwhile, the Wewaykum (Campbell River) Band had been settling on Reserve 11, where it got into a fishing dispute with the Wewaikai. 8 The dispute seemed to be resolved in 1907. With the Wewaykum in attendance, the Wewaikai issued a resolution giving up any interest in Reserve 11, except fishing rights. Shortly after, the Indian Affairs clerk added the name of the Wewaykum (Campbell River) Band to the Schedules, in handwriting, opposite Reserve 11. The Wewaikai's quiet claim and internal departmental correspondence suggested that only 6. See Roberts 1989, supra note 4 at paras. 19-147 (early period) and paras. 213-77 (reserve creation) for detailed historical descriptions. 7. In the Department of Indian Affairs 1902 Schedule of Indian Reserves, entries were made as follows, with the use of ditto marks: Reserve 8 We-way-akay Reserve 9 Reserve 10 Reserve 11 Reserve 12 8. To complicate matters, at the time of this dispute, a logging company informed the Indian Agent that it would like to cut timber on Reserve 11. 4 (2003) 29 Queen's L.J. Reserve 11 was intended for the Wewaykum. However, the clerk forgot to remove the dittos opposite Reserve 12. As a result, it appeared that the Wewaykum had been allocated both parcels.9 The error had little effect at first. When the Wewaikai and Wewaykum appeared before the McKenna McBride Commission1o in 1914, the first Band made no claim to Reserve 11 and the second Band made no claim to Reserve 12.
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