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Fiduciary - Indigenous. Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations)
In Kahkewistahaw First Nation v. Canada (Crown-Indigenous Relations) (Fed CA, 2023) the Federal Court of Appeal considered a JR of decisions of the Specific Claims Tribunal, here addressing surrender of land emanating from 1944 and related Crown fiduciary duties.
In these quotes the court canvasses fiduciary duty court case law in the important indigenous context:(1) Precedents from the Courts
[60] In Williams Lake 2018 SCC, the Supreme Court of Canada explained that there are two different ways in which a fiduciary obligation may arise between the Crown and Indigenous peoples. Writing for the majority, Chief Justice Wagner stated as follows at paragraph 44:A fiduciary obligation may arise from the relationship between the Crown and Indigenous peoples in two ways. First, it may arise from the Crown’s discretionary control over a specific or cognizable Aboriginal interest: Manitoba Metis Federation, at paras. 49 and 51; Wewaykum, at paras. 79-83; Haida Nation, at para. 18; T.R., at para. 180-81. Because this obligation is specific to the relationship between the Crown and Indigenous peoples, it has been characterized as a “sui generis” fiduciary obligation: Wewaykum, at para. 78; Guerin, at p. 385; Sparrow, at p. 1108. Second, a fiduciary obligation may arise 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: Manitoba Metis Federation, at para. 50; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36; T.R., at paras. 182 and 217. [61] As noted in Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 at paragraph 50 and Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 [Elder Advocates], at paragraph 36, a private law ad hoc fiduciary relationship requires that the following conditions be met:(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. [62] The duties cast upon an ad hoc fiduciary are those of utmost loyalty and good faith, requiring the fiduciary to act in the best interests of the beneficiary and no other: see Elder Advocates at para. 43, citing Timothy G. Youdan, ed., Equity, Fiduciaries and Trusts (Royal Society of Canada, 1989) at p. 27; Williams Lake 2018 SCC at para. 165 (Brown J.’s dissenting reasons). Given their multifaceted obligations and responsibilities, as was noted at para. 37 of Elder Advocates, governments will not owe private law duties of an ad hoc fiduciary in many circumstances.
[63] The sui generis fiduciary duty owed to Indigenous people, on the other hand, has been held to exist whenever the Crown has discretionary control over a cognizable Aboriginal interest, and particularly with respect to the surrender and expropriation of reserve lands.
[64] The sui generis fiduciary duty owed to Indigenous peoples in respect of surrendered reserve lands was first recognized by the Supreme Court of Canada in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335; Jack Woodward, Aboriginal Law in Canada (Proview) at § 3:57 at paras. 3.1300, 3.1310; Leonard I. Rotman “Conceptualizing Crown-Aboriginal Fiduciary Relations,” in Law Commission of Canada, In Whom We Trust: A Forum on Fiduciary Relationships (Toronto: Irwin, 2002) at 26. There, the Court found that the Crown breached its fiduciary duty to the Band when it leased surrendered reserve lands on less favourable terms than were discussed with the Band and failed to disclose its inability to have the lessee agree to the terms discussed with the Band. Rather than proceeding to sign the lease, the Supreme Court held that the Crown ought to have instead disclosed to the Band its inability to obtain the terms discussed with the Band and should have sought new instructions before signing a lease. Even though the terms in issue were only discussed orally and were not incorporated into the terms of the surrender, the Court held that the Crown could not rely on the written terms contained in the formal surrender document. Writing for the majority in Guerin, Dickson J. (as he then was) stated at pp. 388-389:Nonetheless, the Crown, in my view, was not empowered by the surrender document to ignore the oral terms which the Band understood would be embodied in the lease. The oral representations form the backdrop against which the Crown's conduct in discharging its fiduciary obligation must be measured. They inform and confine the field of discretion within which the Crown was free to act. After the Crown's agents had induced the Band to surrender its land on the understanding that the land would be leased on certain terms, it would be unconscionable to permit the Crown simply to ignore those terms. When the promised lease proved impossible to obtain, the Crown, instead of proceeding to lease the land on different, unfavourable terms, should have returned to the Band to explain what had occurred and seek the Band's counsel on how to proceed. The existence of such unconscionability is the key to a conclusion that the Crown breached its fiduciary duty. Equity will not countenance unconscionable behaviour in a fiduciary, whose duty is that of utmost loyalty to his principal. [65] In Blueberry River, the Band surrendered its mineral rights and reserve lands to the Crown to use the funds obtained to purchase alternate lands closer to its hunting grounds. The terms of the surrender for the mineral rights were for them to be leased and the terms of the surrender of the lands were for lease or sale. The Court found no breach of fiduciary duty in respect of the surrender because its terms were fully discussed and understood by the Band. Importantly, the option of leasing was shown to have been fully discussed with the Band. However, the Court went on to find a breach of fiduciary duty in respect of the Crown’s failure to reserve the mineral rights in the eventual sale in circumstances where the Crown’s usual practice was to reserve the mineral rights in all sales of Crown lands.
[66] On the issue of the surrender, in her oft-cited concurring reasons, McLachlin J. (as she then was) noted that, while the Band had trusted the Crown to provide it with information as to its options and their foreseeable consequences, the Band had not abdicated its decision making power in respect of the surrender. In the circumstances, the Court found that the scope of the fiduciary duty owed by the Crown in respect of the surrender was limited to preventing an exploitative bargain as opposed to preventing the sale. The Band had argued that the Crown had an obligation to prevent the surrender in circumstances where, with the decline of hunting and trapping and the subsequent discovery of oil and gas on the former reserve, hindsight showed the decision to surrender to have been unfortunate. The Court rejected this contention. McLachlin J. noted at paragraph 35:My view is that the Indian Act's provisions for surrender of band reserves strikes a balance between the two extremes of autonomy and protection. The band's consent was required to surrender its reserve. Without that consent the reserve could not be sold. But the Crown, through the Governor in Council, was also required to consent to the surrender. The purpose of the requirement of Crown consent was not to substitute the Crown's decision for that of the band, but to prevent exploitation. As Dickson J. characterized it in Guerin (at p. 383):
The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited.
It follows that under the Indian Act, the Band had the right to decide whether to surrender the reserve, and its decision was to be respected. At the same time, if the Band's decision was foolish or improvident -- a decision that constituted exploitation -- the Crown could refuse to consent. In short, the Crown's obligation was limited to preventing exploitative bargains. [67] Gonthier J., who penned the majority reasons, noted that he would have been “reluctant to give effect” to the surrender if he thought that the “Band’s understanding of its terms had been inadequate, or if the conduct of the Crown had somehow tainted the dealings in a manner which made it unsafe to rely on the Band’s understanding and intention” (at para. 14).
[68] The failure to reserve the mineral rights, on the other hand, was found to be a breach of fiduciary duty because the Crown failed to exercise ordinary prudence when, through mistake, it neglected to follow its usual practice of reserving the mineral rights from the sale. In the words of McLachlin J. at paragraph 104:The matter comes down to this. The duty on the Crown as fiduciary was "that of a man of ordinary prudence in managing his own affairs": Fales v. The Crown Permanent Trust Co., 1976 CanLII 14 (SCC), [1977] 2 S.C.R. 302, at p. 315. A reasonable person does not inadvertently give away a potentially valuable asset which has already demonstrated earning potential. Nor does a reasonable person give away for no consideration what it will cost him nothing to keep and which may one day possess value, however remote the possibility. The Crown managing its own affairs reserved out its minerals. It should have done the same for the Band. [69] Wewaykum also concerned reserve lands. There, the Supreme Court of Canada clarified that a fiduciary duty does not cover all aspects of the relationship between the Crown and Indigenous peoples and does not necessarily arise before reserve creation: see para. 81. The Court held that, depending on the circumstances, a fiduciary relationship can arise prior to reserve creation, where its scope is limited to the obligations of good faith, providing full disclosure with respect to the subject matter, and acting with ordinary prudence. However, after a reserve is created, the scope of the Crown’s obligations are expanded to include protection of Indigenous interests in reserve land from exploitative bargains: see paras. 98-99.
[70] In Williams Lake 2018 SCC, Chief Justice Wagner, writing for a majority of the Supreme Court, described the scope of the sui generis fiduciary duty owed to Indigenous peoples, as developed through the case law, in the following terms at paragraph 46:A fiduciary obligation requires that the Crown’s discretionary control be exercised in accordance with the standard of conduct to which equity holds a fiduciary (Guerin, at p. 384; Wewaykum, at para. 80). This is embodied, for example, in the fiduciary duties of loyalty, good faith and full disclosure. The standard of care to which a fiduciary is held in its pursuit of the beneficiary’s interests is “that of a man of ordinary prudence in managing his own affairs”: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), 1995 CanLII 50 (SCC), [1995] 4 S.C.R. 344, at para. 104 (McLachlin J., as she then was), citing Fales v. Canada Permanent Trust Co., 1976 CanLII 14 (SCC), [1977] 2 S.C.R. 302, at p. 315; Wewaykum, at para. 94. [71] In Southwind, the most recent decision of the Supreme Court concerning fiduciary duties owed to Indigenous peoples, Karakatsanis J., writing for the majority, described the nature of the ad hoc fiduciary duty owed by the Crown to Indigenous peoples with respect to reserve lands as follows at paragraphs 63-64:In a case involving reserve land, the sui generis nature of the interest in reserve land informs the fiduciary duty. Reserve land is not a fungible commodity. Instead, reserve land reflects the essential relationship between Indigenous Peoples and the land. In Osoyoos, Iacobucci J. wrote that Aboriginal interests in land has an “important cultural component that reflects the relationship between an aboriginal community and the land and the inherent and unique value in the land itself which is enjoyed by the community” (para. 46). The importance of the interest in reserve land is heightened by the fact that, in many cases such as this one, the reserve land was set aside as part of an obligation that arose out of treaties between the Crown and Indigenous Peoples.
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 (Williams Lake, at para. 46; Wewaykum, at para. 86). The standard of care is that of a person of ordinary prudence in managing their own affairs (Williams Lake, at para. 46). 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 (Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), 1995 CanLII 50 (SCC), [1995] 4 S.C.R. 344, at paras. 35 and 96). In an expropriation, the obligation to ensure consent is replaced by an obligation to minimally impair the protected interest (Osoyoos, at para. 54).
[Emphasis added.] [72] In Southwind, the Supreme Court also underscored that a breaching fiduciary who fails to disclose material facts is prevented by what has been called the “Brickenden rule” from arguing that the outcome would have been the same regardless of whether the facts were disclosed, citing to Brickenden v. London Loan & Savings Co. [1934] 3 D.L.R. 465 (P.C.), 1934 CanLII 280 (UK JCPC) (at para. 82).
[73] One other court decision merits mention, namely, the decision of our Court in Semiahmoo Indian Band v. Canada (C.A.), 148 D.L.R. (4th) 523, 1997 CanLII 6347 (FCA) [Semiahmoo]. There, this Court found a breach of fiduciary duty when the Crown requested the surrender of land to expand a customs facility without any definite plans to construct the facility. This Court upheld the trial judge’s finding that the initial surrender as well as a failure to re-convey the land when the Band requested a re-conveyance were both breaches of fiduciary duty by the Crown. Importantly for our purposes, this Court confirmed that the Crown’s post-surrender fiduciary obligations required it to consider and adjust to changed circumstances, which in that case, involved a request by the Band that the land be re-conveyed back to Band when it was no longer needed for the purposes it was surrendered.
[74] From the foregoing cases, the following principles emerge of relevance to the instant case.
[75] First, the nature of the sui generis fiduciary duty owed by the Crown to Indigenous peoples in the context of a surrender of reserve land is multifaceted. The obligations imposed on the Crown in such circumstances include duties of loyalty, good faith, full disclosure, protection of the First Nation’s interest in the reserve lands from exploitative or improvident bargains, managing the process in the best interests of the First Nation, and ensuring that the First Nation consents to the surrender. These duties require decision makers tasked with assessing a claim of breach of fiduciary duty to consider factors that go well beyond the existence of consent by the First Nation and whether the bargain was improvident, the only two factors assessed by the Tribunal in the present case.
[76] Second, the terms of the formal written surrender document are not determinative of the scope of the Crown’s fiduciary obligations. Rather, the nature of those obligations will fall to be determined based on all the relevant surrounding circumstances. Sometimes those circumstances may require the Crown, in the discharge of its fiduciary obligations, to go beyond the terms contained in the surrender document and to explore other options.
[77] Third, the Crown’s post-surrender fiduciary obligations may require it to consider and adjust to changed circumstances relevant to the surrender where the surrendered land has not yet been sold. Depending on the facts, the Crown’s fiduciary duties may require it to consult with the First Nation or re-convey to the First Nation lands that have been surrendered and not yet sold. . 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:[161] 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.
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(b) Did the Crown’s breach of its treaty promise amount to a breach of fiduciary duty?
[179] We begin with some general observations.
[180] 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.”
[181] 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.
[182] 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, [2004] 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.
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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.] [183] 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, [2011] 2 S.C.R. 261: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44.
[184] 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.
[185] 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.
[186] 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.
[187] 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, [2002] 4 S.C.R. 245, at para. 85.
[188] 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.
[189] 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.] [190] 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.] [191] 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.] The court further discusses the fiduciary issue at paras 193-202, and then concludes that no fiduciary duty existed at paras 203 to 211:(iii) Was there a breach of fiduciary duty?
[203] 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, [2009] 3 S.C.R. 247, at para. 75; Elder Advocates, at paras. 36, 61.
[204] 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.
[205] 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.
[206] 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.
[207] 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, [2003] 2 S.C.R. 403, at para. 41.
[208] 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, [2009] 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.
[209] 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, [2010] 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”.
[210] 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.
[211] We agree with the trial judge that there was no additional fiduciary duty in the circumstances of this case.
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