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Indigenous - Reserves. 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 considered the history and the nature of a native 'reserve':(3) Did the Crown owe a fiduciary duty to SON?
[163] SON argues that Treaty 45 ½ created a reserve, which, as such, gave rise to fiduciary duties on the Crown’s part. SON also argues that both the breaches of the honour of the Crown and the Crown’s failure to act with diligence to fulfil the promise in Treaty 45 ½ to protect the Peninsula from encroachment also amounted to breaches of both ad hoc and sui generis fiduciary duties owed by the Crown.
(a) Did Treaty 45 ½ create a reserve?
[164] The status of the SON lands retained after Treaty 45 ½ could have had some bearing on the question of whether a fiduciary duty was owed and, thus, the trial judge first dealt with the question of whether Treaty 45 ½ created a reserve.
[165] At trial, SON argued that Treaty 45 ½ created a reserve and, in light of the reserve’s creation, the Crown had additional legal duties to protect the Peninsula, above and beyond its treaty obligations and the obligations underpinning the honour of the Crown.
[166] The trial judge did not accept this argument.
[167] She began by noting that the word “reserve” was often used in historical documents, by witnesses, and by parties as a common and convenient name, in a non-legal sense, to refer to Indigenous lands. However, she acknowledged that, at the time of Treaty 45 ½, it was not always used in that way. For example, she cited legislation enacted in 1849 and 1850[7] in which the term “reserve” was used to describe Crown and Clergy lands, not Indigenous lands.
[168] SON’s submission, based on law developed under the Indian Act, R.S.C. 1985, c. I-5, was that Treaty 45 ½ created a reserve in the formal legal sense, with consequential added legal obligations.
[169] The Indian Act was first introduced in 1876, long after Treaty 45 ½ was signed. Section 2(1) of the Act defines a “reserve” as “a tract of land, the legal title to which is vested in His Majesty, that has been set apart by His Majesty for the use and benefit of a band.”
[170] The trial judge noted that, where lands qualify as a “reserve” under the Indian Act, a myriad of statutory provisions under the Act then apply, including many Crown obligations. Citing Madawaska Maliseet First Nation v. Canada, 2017 SCTC 5, at para. 335, she observed that “[f]inding that an Indian Act ‘reserve’ is created ‘means finding that the Crown intended that an exhaustive body of federal legislation would apply to regulate the reserve, necessitating a degree of federal administration, control and corresponding duties and costs’ that come along with it.”
[171] SON relied on the leading case interpreting the term “reserve” under the Indian Act: Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816. Specifically, SON urged the trial judge to apply the following test for reserve creation, as set out at para. 67 of Ross River:1. That the Crown had the intention to create a reserve;
2. That this intention was possessed by Crown agents holding sufficient authority to bind the Crown;
3. That steps were taken to set the land apart for the benefit of the Indigenous group; and
4. That the Indigenous group accepted the setting apart of the land and began making use of those lands. The court continues at paras 172-178 to consider the facts of the case on the issue of whether a 'reserve' was created.
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