Sark v. Lennox Island Band of Indians
T-390-95
MacKay J.
24/6/99
8 pp.
Motion to strike parts of statement of claim on ground disclosing no cause of action-Crown urging since no allegation of breach of fiduciary control of Aboriginal assets, reserve lands, mineral rights or Indian moneys, no alleged breach of Aboriginal or treaty rights, and no allegation of some discretion or power vested in Crown that was exercised to disadvantage of plaintiff, no allegation to which claim in paragraph 25, of breach of fiduciary duty, can be related-However, contexts in which fiduciary duties owed by Her Majesty to Aboriginal peoples not yet closed, as application of concept continues to evolve-Crown's delay in bringing motion to strike not precluding motion based on ground no reasonable cause of action-Plaintiff in essence urging that Minister owing fiduciary duty to Aboriginal peoples living off reserves to protect their Aboriginal rights under customary election procedures and that duty breached in circumstances of case herein; that Minister has residual authority, and fiduciary duty to Aboriginal people, to ensure that, where applicable, Band custom followed-Not for Court to determine at this stage whether so-Sufficient to acknowledge not plain and obvious plaintiff's action having no chance of success-Motion dismissed-Incidentally, plaintiff arguing Indian Act questioned herein as Act providing no legislated guidelines to ensure rules said to be customary do actually reflect true custom and no customary guidelines protect rights of Band members, or ensure consistency with Charter-However, Crown entitled to particulars of matter said to be implicit in amended statement of claim giving rise to plaintiff's claim of breach of fiduciary duty by or on behalf of Crown.