Digests

Kingfisher v. Canada

T-518-85

2001 FCT 858, Gibson J.

8/8/01

69 pp.

Action for declaration defendant owed fiduciary duty to plaintiffs and breach thereof; damages--Action relative to surrender of Indian reserve 107 (Stony Knoll Reserve) by Order in Council P.C. 1155 (1897) and surrender of possession and title to lands comprised therein to third parties--Issue of standing to bring action; funding to prepare and present assessment of nature and quantum of damages--Pursuant to Treaty No. 6, Stony Knoll Reserve No. 107 established on south bank of North Saskatchewan River and confirmed by order in council in 1889--Stony Knoll Reserve never settled by Band--When Stony Knoll Reserve confirmed by order in council in May 1889, Band considered to consist of 3 women and 9 children, in 2 families, living on Thunder Child Reserve--Annuity payments for 1889 made to members of 2 families as part of Thunder Child Band--No individual paid annuity payment, as member of Band after 1889--By Order in Council 1155/ 1897, control of reserve passed to Department of Interior; in effect Stony Knoll Reserve ceased to exist as reserve for Band or any other band--No compensation paid or otherwise provided for any member of Band--Expert reports, testimony tracing genealogy of plaintiffs--Issues whether plaintiffs have established they are descendants in unbroken line of members of Chief Chipeewayan Band; if so, whether plaintiffs entitled to bring action, not only on behalf of themselves, but also on behalf of those described in style of cause as descendants of Chief Chipeewayan Band; whether participation in recent treaty land entitlement settlement agreements affect right of plaintiffs to claim relief sought in action; whether claim barred by Saskatchewan Limitation of Actions Act, or by laches; whether Order in Council P.C. 1155 of 1897, which purported to transfer administration of lands comprising Stony Knoll Reserve valid--Action dismissed--Precise historical accuracy important here where ability of plaintiffs contingent upon their establishing, on balance of probabilities, they are descendants in unbroken lines of members of Band--Application of S.C.C. decision in Mitchell v. Canada (Minister of National Revenue--M.N.R.) (2001), 199 D.L.R. (4th) 385: Aboriginal right claims giving rise to unique and inherent evidentiary difficulties; rules of evidence must be applied flexibly, in manner commensurate with inherent difficulties posed by such claims; trial courts must also interpret evidence in same spirit--Oral history evidence on behalf of plaintiffs regarding their ancestry should be admitted--Evidence reasonably reliable and of probative value--Other testimony not admitted--More contentious issue relating to interpretation and weighing of totality of evidence in support of claim by each of plaintiffs and whether descendant, in unbroken line, of member of Band--None of plaintiffs have established descendants in unbroken line of member of Young Chipeewayan Band--Had any of them succeeded in doing so, he or she would be entitled to bring action on own behalf--And any individual plaintiff so entitled would be equally entitled to bring action on behalf of described class--As to effect of participation in recent treaty land entitlement settlement agreements and whether claim barred by Limitation of Actions or by laches, such issues would be better dealt with in context of resumption of proceedings in this action--As to validity of Order in Council P.C. 1155 of 1897, as evidence did not establish Band had ceased to exist at time of purported release or surrender, and as onus on defendant in this regard, and as defendant one alleging action of Governor in Council justified, and in light of terms of Treaty No. 6 and Indian Act, s. 39, and further in light of fact evidence disclosing no efforts made at consultation with members of Band regarding release or surrender and, in result, as no assent of any kind to release or surrender obtained from Band, if Court were required to do so, would find Order in Council invalid--Reasoning in Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335 and Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344, when applied herein, imposed on defendant fiduciary duty to Band not to implement release or surrender of Stony Knoll Reserve without clear and convincing proof, in absence of any decision by Band to surrender reserve, that Band had ceased to exist (no such proof could have been before defendant)--Defendant breached fiduciary duty when consented to surrender--Order in Council P.C. 1155--Indian Act, R.S.C. 1886, c. 43, s. 39--Limitation of Actions Act, R.S.S. 1978, c. L-15.