A-756-96
Her Majesty the Queen in Right of Canada, the Minister of Indian Affairs and Northern Development and the Minister of Finance (Appellants) (Defendants)
v.
Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the Samson Indian Band and Nation (Respondents) (Plaintiffs)
A-757-96
Her Majesty the Queen in Right of Canada (Appellant) (Defendant)
v.
Chief Jerome Morin acting on his own behalf as well as on behalf of all the members of Enoch's Band of Indians and the residents thereof on and of Stony Plain Reserve No. 135 (Respondents) (Plaintiffs)
A-758-96
Her Majesty the Queen in Right of Canada, the Honourable Thomas R. Siddon, Minister of Indian Affairs and Northern Development and the Honourable Donald Mazankowski, Minister of Finance (Appellants) (Defendants)
v.
Chief John Ermineskin, Lawrence Wildcat, Gordon Lee, Art Littlechild, Maurice Wolfe, Curtis Ermineskin, Gerry Ermineskin, Earl Ermineskin, Rick Wolfe, Ken Cutarm, Brian Lee, Lester Fraynn, the elected Chief and Councillors of the Ermineskin Band and Nation suing on their own behalf and on behalf of all the other members of the Ermineskin Indian Band and Nation (Respondents) (Plaintiffs)
Indexed as: Samson Indian Nation and Bandv. Canada (C.A.)
Court of Appeal, Stone, Desjardins and McDonald JJ.A."Ottawa, September 24, 25 and October 27, 1997.
Practice — Privilege — Parameters of Crown's right to maintain claim of privilege in respect of solicitor and client communications in context of trust-like relationship between Crown and Indians with respect to 1946 surrender of rights in oil and gas resources in reserve lands.
Crown — Trusts — Native peoples — Interest of Indian bands as beneficiaries of trust-like arrangements with Crown warranting disclosure of any document in nature of legal advice received by Crown in administration of surrendered oil, gas resources in reserve lands and revenues derived therefrom.
Native peoples — Crown claiming privilege in breach of trust actions brought by Indian bands relating to Crown management of oil, gas resources and revenues derived therefrom in respect of reserve lands surrendered by three bands — Documents for which legal advice privilege claimed ordered to be produced in light of special trust-like relationship between Crown, Indians — Production ordered for documents relating to Crown programs, services including reference to oil and gas assets, or financial revenues therefrom.
Claims of privilege, on solicitor and client basis, were made by the Crown with respect to documents covered by affidavits of documents filed in actions involving a variety of claims in regard to alleged wrongs by the Crown in the management and exploitation of oil and gas resources in reserve lands surrendered to Her Majesty in 1946, in the management of the revenues derived therefrom, and in the funding of programs and services. Enormous sums of money are involved.
These were an appeal and a cross-appeal from two orders of the case management Judge, one dealing with legal documents claimed as privileged by the Crown, the other with the application of that earlier order.
The main issue related to the parameters of the appellants' right to maintain a claim of privilege in respect of solicitor and client communications in the context of the relationship between the appellants and the respondents, in light of the Supreme Court of Canada decisions in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), St. Mary's Indian Band v. Cranbrook (City) and R v. Van der Peet.
The appellants proposed a narrow application of the trust principle in light of the trust-like relationship between the Crown and the Indians. They argued that since the Crown wore many hats and represented many interests, the documents in respect of which the privilege was claimed should not be disclosed unless they were obtained by the Crown in the administration of the "res" or in the course of the Crown carrying out its duties as "trustee" for the exclusive or dominant benefit of the respondent bands. The bands argued for a large application of the trust principle. In their submission, they had only to establish prima facie that they were beneficiaries of a trust or other fiduciary obligation and that the documents were relevant to the issues in the litigation. In this sense, the respondents submitted that the Crown's trust obligations clearly required disclosure of any document which had a direct or significant impact on the administration of their assets or on the propriety of the Crown's administration of the respondents' trust, and which directly related to an issue in the context of the present litigation.
Held, the appeal should be dismissed.
In Blueberry River Indian Band, Gonthier J., writing for the majority, made it clear, inter alia, that his reasons should not be interpreted to equate a trust in Indian land with a common law trust. While the Supreme Court of Canada has yet to define the true nature and scope of the special fiduciary relationship between the Crown and the Indians, it would seem that, in the context of a trust in Indian land, the effects of a "true" trust are generally applicable.
On one side there was the privilege asserted by the Crown with regard to legal documents on account of the many hats She was wearing, on the other, the affirmation of the respondents' interests, i.e. the rights of the respondents to claim access to those legal documents, which originated in the trust-like relationship created by the surrenders. The Crown could not claim any privilege with respect to those documents that related to the assets under management when She was only wearing the hat of the trustee for the respondents' assets under management. She could have if, in respect of the same document, She could successfully claim other interests. Once these two values are properly assessed, any doubt must be resolved under the principles established by the Supreme Court of Canada in Descôteaux et al. v. Mierzwinski (any conflict should be resolved in favour of protecting confidentiality). Thus, production of documents relating to legal advice referring specifically to administration of the mineral assets surrendered or the management of moneys derived therefrom, or programs and services discussed with any reference to the oil and gas interests will treat the respondent bands and nations much like beneficiaries of a private trust, entitled to access legal advice obtained by the Crown as "trustee". This is because, as beneficiaries of a variation of a trust in Indian lands, the respondents share an interest in that advice with the Crown, which is responsible for the administration and management of the mineral assets and revenues therefrom for the benefit exclusively of the respondent bands and nations.
It would frustrate the nature of the process to exclude documents which belong "by necessary implication" to the trusteeship in Indian land since, by definition, they were necessarily linked to the assets under administration. The exclusive or dominant benefit test proposed by the appellants was too narrow considering the intention of the parties at the time of the 1946 surrenders: "to have and to hold . . . forever, in trust to grant . . . to such person or persons, and upon such terms and conditions as the Government . . . may deem most conducive to our welfare and that of our people". The production of documents relating directly to cuts in programs and services that would have occurred considering the revenues of the assets under administration was indispensable to the actions. They were part of the total picture of the administration of the trusteeship in Indian land in terms of the conduct of the trustee during Her administration.
statutes and regulations judicially considered
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Federal Court Rules, C.R.C., c. 663, R. 448 (as am. by SOR/90-846, s. 15), 450 (as am. idem).
Indian Act, R.S.C., 1985, c. I-5.
Indian Oil and Gas Act, R.S.C., 1985, c. I-7.
cases judicially considered
applied:
Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; (1995), 130 D.L.R. (4th) 193; [1996] 2 C.N.L.R. 25; 190 N.R. 89; St. Mary's Indian Band v. Cranbrook (City), [1997] 2 S.C.R. 657; (1997), 147 D.L.R. (4th) 385; R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 80 B.C.A.C. 81; 200 N.R. 1; 130 W.A.C. 81.
considered:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1.
referred to:
R. v. Sparrow, [1990] 1 S.C.R. 1075; (1990), 70 D.L.R. (4th) 385; [1990] 4 W.W.R. 410; 46 B.C.L.R. (2d) 1; 56 C.C.C. (3d) 263; [1990] 3 C.N.L.R. 160; 111 N.R. 241; Fales et al. v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; (1976), 70 D.L.R. (3d) 257; [1976] 6 W.W.R. 10; 11 N.R. 48; Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462.
authors cited
Oosterhoff, A. H. and E. E. Gillese. A.H. Oosterhoff: Text, Commentary and Cases on Trusts, 4th ed. Toronto: Carswell, 1992.
Waters, D. W. M. Law of Trusts in Canada, 2nd ed. Toronto: Carswell, 1984.
APPEAL and cross-appeal from orders of the case management Judge (Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 528; (1996), 110 F.T.R. 96 (T.D.), and Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1996), 119 F.T.R. 161 (F.C.T.D.)) following this Court's decision in Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762; (1995), 125 D.L.R. (4th) 294; [1995] 3 C.N.L.R. 18; 184 N.R. 139 (C.A.), revg Samson Indian Band v. Canada, [1994] F.C.J. No. 1448 (T.D.) (QL), relating to the parameters of the Crown's right to maintain a claim of privilege in respect of solicitor and client communications in the context of the trust-like relationship between the appellants and the respondents. Appeal and cross-appeal dismissed.
counsel:
Barbara S. Ritzen, Douglas B. Titosky, Cara Stelmack and William J. Blain for appellants.
Edward H. Molstad, Q.C. and James O'Reilly for respondent, Samson Band.
Maria A. Morellato for respondent, Ermineskin Band.
solicitors:
Deputy Attorney General of Canada for appellants.
Parlee McLaws, Edmonton, for respondent, Samson Band.
Blake, Cassels & Graydon, Vancouver, for respondent, Ermineskin Band.
The following are the reasons for judgment rendered in English by
Desjardins J.A.: This is an appeal from two orders of MacKay J. The first, dated March 20, 1996 [[1996] 2 F.C. 528], deals with legal documents claimed as privileged by the appellants, (the Crown). The second, dated September 10, 1996 [(1996), 119 F.T.R. 161], concerns the application of his earlier order dated March 20, 1996. The respondents, in turn, have cross-appealed both of MacKay J.'s orders. These two orders were rendered in the context of pre-trial conferences held under the case management system.
The main issue in this appeal and in this cross-appeal relates to the parameters of the appellants' right to maintain a claim of privilege in respect of solicitor and client communications in the context of the relationship between the appellants and the respondents.
Nature of the proceedings
The respondents commenced actions against the Crown for breach of trust or fiduciary obligations resulting from the Crown's management of oil and gas resources in reserve lands surrendered by the three respondent Indian bands to the Crown in 1946 (the oil and gas issues), from the Crown's management of moneys derived as royalties or other revenues from leases or sales of the oil and gas resources thus surrendered (the moneys issues), and from the Crown's provision of programs and services to the respondent bands (the programs and services issues).
The alleged trust or fiduciary obligations arise from the Treaty No. 6 of 1876 and subsequent surrenders by way of which the ancestors of, and the respondent bands, surrendered to the Crown their rights in oil and gas mineral resources. The land was part of Indian reserves which had been set aside for the use and benefit of the respondent bands, including the Pigeon Lake Reserve No. 138A, which was set apart for the benefit of the respondent bands as well as that of other Indian bands. Since then, the Parliament of Canada has enacted different legislation, including various versions of the Indian Act1 and the Indian Oil and Gas Act,2 and regulations thereunder, in regard to the management, administration and control of oil and gas resources and the royalties, payments and moneys therefrom, for the benefit of Indian bands.
The moneys and royalties derived from the surrenders of the respondents' rights in oil and mineral resources are staggering. Suffice it to say that as of March 31, 1989, there were approximately 744 million dollars in Indian "capital monies" in the Consolidated Revenue Fund, 90% of which was derived from the production of oil and gas on the Pigeon Lake Indian Reserve.3 Needless to say, the interests at stake are enormous.
The proceedings leading to the present appeal and cross-appeal can be summarized as follows. As required by subsection 448(1) of the Federal Court Rules [C.R.C., c. 663 (as am. by SOR/90-846, s. 15)], the Crown filed its affidavits of documents in respect of the respondents' actions. Pursuant to subsection 448(2) [as am. idem], the Crown identified, in separate lists, those documents for which privilege was claimed. The respondents, by way of motion, sought an order requiring production of the documents over which the Crown had claimed privilege. By order dated September 9, 1994, MacKay J. ordered the Crown to file an amended affidavit of documents, pursuant to Rules 448 and 450 [as am. idem] of the Federal Court Rules, identifying five categories of documents in respect of which privilege had been claimed by the Crown and made directions with respect to the production of documents in each of those categories. For the purpose of the present appeal, the only documents giving rise to dispute are those in the nature of legal advice and for which solicitor and client privilege is claimed.
MacKay J.'s September order was appealed to this Court and the appeal was allowed in part. Before the Court of Appeal, the respondents claimed that the special trust-like relationship between the Crown and the Indians precluded the Crown from claiming privilege over documents in the nature of legal advice. The respondents relied on the "trust principle" by virtue of which no privilege attaches to communications between a solicitor and the trustee as against the beneficiaries who have a joint interest with the trustee in the subject-matter of the communications.
By decision dated May 12, 1995,4 this Court concluded that the trust principle could not apply to "Crown trusts", such as the one in issue, in the same manner and to the same extent as if it were a private trust. After an analysis with respect to the degree of applicability of the trust principle in light of a conceded prima facie trust-type relationship between the Crown and the Indians, the Court concluded that it was not possible, at the discovery stage of the proceedings, to assess with specificity which documents, or class of documents, would be producible pursuant to a "Crown trust". The matter was referred back to the case management Judge in order for the respondents to challenge the claim of privilege document by document bearing in mind, as suggested by the Supreme Court of Canada in Descôteaux et al. v. Mierzwinski ,5 that any conflict should be resolved in favour of protecting confidentiality. I shall return to this Court's decision in greater detail later on.
Orders appealed and cross-appealed from
In light of the principles adopted by this Court's decision dated May 12, 1995, the parties re-attended before MacKay J. in order to present further submissions concerning the disclosure of documents in the nature of legal advice. In the meantime, the Supreme Court of Canada rendered its decision in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development).6 On March 20, 1996, after having taken account of the pronouncements of Gonthier J., for the majority,7 in Blueberry River Indian Band, the case management Judge made the following order:8
1. For purposes of discovery, the Crown shall produce any document in the nature of, and heretofore claimed as being privileged as, legal advice, which is not otherwise claimed as privileged under the litigation privilege, that concerns the administration of, or the discharge of, responsibilities of the Crown as trustee for the benefit of the Respondent Bands and peoples arising from the surrenders to the Crown, in 1946, by the Respondents of their rights in oil and gas mineral resources on their respective reserve lands: including the Crown's responsibilities for:
a) the management of oil and gas mineral resources;
b) the management of funds derived as royalties or otherwise from the oil and gas resources;
c) the establishment or operation of programs and services operated under the aegis of the Crown where the advice sought or received makes reference to the mineral resources surrendered by the Respondents or revenues derived therefrom.
2. This order to produce does not extend to documents claimed as privileged under the legal advice privilege which are general in nature and do not, by express terms or necessary implication, relate to the special trust-like arrangement created by the surrenders.
Still in the context of the case management system, the parties attended a further hearing during which they submitted to the case management Judge sample lists of privileged documents,9 and asked him to identify which of those documents would be producible in light of the principles set out in the March 20, 1996, order. By order dated September 10, 1996, MacKay J. concluded that the following documents included in the sample list were producible:10
A. where they relate expressly to administration of the Crown's responsibilities in relation to the "res" or subject matter of the trust relationship, i.e. the oil and gas interests surrendered by the plaintiffs in 1946 or moneys derived therefrom and held for the plaintiff bands;
B. where, though general in nature without specific reference to the "res", the documents by necessary implication are considered to relate to administration of the "res" or subject matter of the trust relationship, including
1) a document enclosed or incorporated by reference in another which is producible,
2) a document which expressly or implicitly deals with the "res", that is obtained or requested as a result of questions raised by plaintiffs concerning administration of their interests in the "res",
3) a document referring to creation or operation of a trust fund, by a plaintiff band, created from funds held by the Crown for the band,
4) a document relating to administration of the "res" but without specific reference to plaintiffs, who are the beneficiaries, e.g. Pigeon Lake Reserve or the oil and gas interests or revenues therefrom,
5) a document, though it may be general, without specific reference to the "res" or the plaintiffs, which refers to application of the Indian Oil and Gas Act or regulations thereunder (but excluding application to third parties' interests and excluding proposals for legislative change), and
6) a document concerning interests of another band which is subsequently specifically made referable to administration of the "res" of the plaintiffs.
C. Finally, there may be documents dealing with programs and services, arising from other authority or responsibilities of the Crown, in which determination of those responsibilities is considered with specific reference to the comparative wealth of the plaintiffs arising as a result of their interests in the "res".
In Annex B of his decision, each document of the sample was listed with an indication as to where it stood in terms of its classification and production.
The Crown, before this Court, challenges the March 20, 1996, order. With respect to the September 10, 1996, order, the Crown contends that the case management Judge erred in ordering that the documents found in categories B1, B2, B3, B5, B6 and C should be produced. She does not object to category A except to say that some documents do not belong to it. The respondents cross-appeal the March 20, 1996, and September 10, 1996, orders, in so far as they exclude from production those documents which dealt with proposals for legislative changes or general advice relating to the administration of Indian moneys or Indian oil and gas resources. Even if they do not mention specifically the "res" of the trust relationship, these last documents, say the respondents, deal directly or by necessary implication with the Crown's fiduciary obligations.
Positions of the parties in the appeal and the cross-appeal
Before this Court, the appellants propose a narrow application of the trust principle in light of the trust-like relationship between the Crown and the Indians. According to the appellants, since the Crown wears many hats and represents many interests, the documents over which privilege is claimed should not be disclosed unless they were obtained by the Crown in the administration of the "res" or in the course of the Crown carrying out its duties as "trustee" for the exclusive or dominant benefit of the respondent bands.
The respondent bands favour a large application of the trust principle in light of the trust-like relationship between the Indians and the Crown. According to the respondents, the claimant must only establish prima facie that he or she is a beneficiary of a trust or other fiduciary obligation and that the documents are relevant to the issues in the litigation. In this sense, the respondents submit that the Crown's trust obligations clearly require disclosure of any document which has a direct or significant impact on the administration of their assets or on the propriety of the Crown's administration of the respondents' trust, and which directly relates to an issue in the context of the present litigation.
Analysis
As a starting proposition, this Court's decision of May 12, 1995, must be reviewed in the light of the recent decisions of the Supreme Court of Canada in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development);11 St. Mary's Indian Band v. Cranbrook (City);12 and R. v. Van der Peet.13
In its May 12, 1995, decision, this Court held that, for the trust principle to apply at the discovery stage of an action for breach of duty in the administration of a trust, two conditions had to be met. Firstly, the alleged trust relationship must be established on a prima facie basis. Secondly, the documents allegedly belonging to the beneficiaries must be documents obtained or prepared by the trustee in the administration of the trust and in the course of the trustee carrying out his duties as trustee.14
The Court was prepared, because of the very special relationship between the Crown and the Indians, and because the Crown was to be held to a "high standard of honourable dealing with respect to the aboriginal people",15 to accept that whatever was the precise nature of the relationship between the Crown and the respondent bands, it would qualify prima facie as a trust-type relationship for the purposes of the application of the trust principle at the discovery stage. The Court's concern, however, was with respect to the second condition.
The Court was of the opinion that the rules and practices developed with respect to private trust did not automatically apply to "Crown trusts" such as the one in this case. This was explained the following way:16
It is settled law that where there is a trust relationship, no privilege attaches to communications between a solicitor and the trustee as against the beneficiaries who have a joint interest with the trustee in the subject-matter of the communications. The matter was recently canvassed by Lederman J. in Re Ballard Estate, where it was said:
Both counsel recognized the principle that communications passing between an executor or trustee and a solicitor are not privileged as against beneficiaries who are claiming under the will or trust. The rationale was set out in the classic statement of Lord Wrenbury in O'Rourke v. Darbishire, [1920] A.C. 581 at pp. 626-27, [1920] All E.R. Rep. 1 (H.L.), as follows:
If the plaintiff is right in saying that he is a beneficiary, and if the documents are documents belonging to the executors as executors, he has a right to access to the documents which he desires to inspect upon what has been called in the judgments in this case a proprietary right. The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own. Action or no action, he is entitled to access to them. This has nothing to do with discovery. The right to discovery is a right to see someone else's documents. The proprietary right is a right to access to documents which are your own. No question of professional privilege arises in such a case. Documents containing professional advice taken by the executors as trustees contain advice taken by trustees for their cestuis que trust, and the beneficiaries are entitled to see them because they are beneficiaries.
. . .
The basis of the trust principle, as appears from Mr. Justice Lederman's reasons in Re Ballard Estate, is the assumption, in cases of private trusts, that legal advice sought by the trustee belongs to the beneficiaries "because the very reason that the solicitor was engaged and advice taken by the trustees was for the due administration of the estate and for the benefit of all beneficiaries who take or may take under the will or trust".
That assumption cannot be applied to Crown "trusts". The Crown can be no ordinary "trustee". It wears many hats and represents many interests , some of which cannot but be conflicting. It acts not only on behalf or in the interest of the Indians, but it is also accountable to the whole Canadian population. It is engaged in many regards in continuous litigation. It has always to think in terms of present and future legal and constitutional negotiations, be they with the Indians or with the provincial governments, which negotiations, it might be argued, can be equated in these days and ages with continuous litigation. Legal advice may well not have been sought or obtained for the exclusive or dominant benefit of the Indians, let alone that of the three bands involved in these proceedings. Legal advice may well relate to policy decisions in a wide variety of areas which have nothing or little to do with the administration of the "trusts". It is doubtful that payment of the legal opinions given to the Crown is made out of the "private" funds of the "trusts" it administers . . . . [Emphasis added.]
The Court concluded that it was simply not possible at that stage of the proceedings to assume in a general way which of the documents at issue, in whole and in part, were documents which were obtained or prepared by the Crown in the course of carrying out its duties as "trustee" for the respondents. The Court held:17
As noted by Dickson J. (as he then was) in Solosky, "privilege can only be claimed document by document". We have not seen the documents at issue; we do not know what argument nor what line of argument, if any, may be developed by the parties with respect to each of the documents and, eventually, to a class of them. Furthermore, we cannot rely on any practical precedent in the case law, for this is an approach to the law of privilege which is peculiar to the yet unsettled relationship between the Crown and the Indians. It is not possible in the abstract to resolve the conflict between the alleged right of the Crown to privilege and the alleged right of the respondents to disclosure otherwise than in the manner suggested by the Supreme Court in Descôteaux, i.e. in favour of protecting privilege . [Emphasis added.]
At issue in Blueberry River Indian Band, pronounced by the Supreme Court of Canada a few months later, was the alleged breach of fiduciary obligation on the part of the Crown with regard, in particular, to two surrenders which had occurred, one in 1940 and one in 1945. Gonthier J., for the majority, was of the view that principles of common law property were not helpful in the context of that case. Since Indian title in reserves is sui generis, it would have been most unfortunate if the technical land transfer requirements embodied in the common law were to frustrate the intention of the parties and, in particular, the Band, in relation to their dealings. The sui generis nature of aboriginal title requires courts, he said, to go beyond the usual restrictions imposed by the common law, in order to give effect to the true purpose of the dealings.18 He made it clear that his reasons should not be interpreted to equate a trust in Indian land with a common law trust. He was well aware, he said,19 that this issue was not resolved in Guerin et al. v. The Queen et al.,20 and he had no wish to pronounce upon it in that case. He noted that the Supreme Court did recognize in Guerin that the "trust-like" obligations and principles would be relevant to the analysis of a surrender of Indian lands. Both surrenders in the Blueberry River Indian Band case had been framed as trusts. The parties, therefore, according to Gonthier J., had intended to create a trust-like relationship which he characterized, for lack of a better label, as "trusts in Indian lands".
Although it is settled that there is a special fiduciary relationship between the Crown and the Indians, the Supreme Court of Canada has yet to define its true nature and scope. And, although the rights of the Indians and the responsibilities of the Crown remain to be spelled out, the Supreme Court held in Blueberry River Indian Band that the Crown (DIA), having taken on the obligations as a trustee, was under a fiduciary duty to deal with the matter in the best interests of the Band members.21 Furthermore, when Gonthier J. stated, at page 364, that "[t]he DIA's failure to continue the leasing arrangement could be excused if the Department had received a clear mandate from the Band to sell the mineral rights", he applied a trust law defence which can be used by a trustee in order to refute a breach of trust.22 The requirement upon a trustee to act with reasonable diligence, which Gonthier J. attributed to the Crown later on (at page 366), is also to be found in the principles of a common law trust.23 It would appear, therefore, that in the context of a trust in Indian land,24 the effects of a "true" trust are generally applicable.25
The Supreme Court of Canada's decision in St. Mary's Indian Band v. Cranbrook (City),26 which was rendered after the case management Judge's orders, is largely an application of the Blueberry River Indian Band decision. The case of R. v. Van der Peet,27 also pronounced after the two orders of the case management Judge were issued, is an affirmation that Indian treaty rights under section 35 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] are to be given a generous and liberal interpretation,28 and that where there is any doubt or ambiguity with regard to the scope and definition of subsection 35(1), such doubt or ambiguity must be resolved in favour of Aboriginal peoples.
There are two important values at stake in the case at bar. One is the privilege asserted by the Crown with regard to legal documents. The other is the affirmation of the respondents' interests. The line of demarcation lies between the rights of the respondents to claim access to those legal documents, which originate in the trust-like relationship created by the surrenders (the nature and scope of which remaining undefined), and the extent to which the Crown may claim privilege on those documents on account of the many hats She is wearing. The Crown cannot claim any privilege on those documents that relate to the assets under management when She is only wearing the hat of the trustee for the respondents' assets under management. She may if, on the same document, She can successfully claim other interests. Once these two values are properly assessed, any doubt must be resolved under the principles established by the Supreme Court of Canada in Descôteaux.
The case management Judge correctly directed himself in the law when he stated, in his reasons for judgment of March 20, 1996:29
That production will treat the plaintiff bands and nations much like beneficiaries of a private trust, entitled to access to legal advice obtained by the Crown as "trustee". This is because, as beneficiaries of a variation of a trust in Indian land, the plaintiffs share an interest in that advice with the Crown, which is responsible for administration and management of the mineral assets and revenues therefrom for the benefit exclusively of the plaintiff bands and nations.
He took the correct view of the respondents' joint interests when he ordered, on March 20, 1996, that the Crown produce any document in the nature of legal advice that concerns the administration of, or the discharge of, responsibilities of the Crown as trustee for the benefit of the plaintiff bands and peoples arising from the 1946 surrenders of rights in oil and gas mineral resources, including the royalties derived and the operation of programs and services where the advice sought made reference to the mineral resources surrendered and the revenues derived. He sought to make clear that documents claimed as privileged under the legal advice privilege, which were general in nature but which did not, by express terms or necessary implication, relate to the special trust-like arrangements resulting from the surrenders, were not to be disclosed. He clarified that order on September 10, 1996. The appellants do not object to category A of the second order except to say that certain specific documents classified by the Judge as belonging to that category do not in fact belong to it. The appellants object, however, to categories B1, B2, B3, B5, B6, which render documents of a general nature but related to the "res" by necessary implication, producible, and to category C, dealing with programs.
In my view, it would frustrate the nature of the process to exclude documents which belong "by necessary implication" to the trusteeship in Indian land since, by definition, they are necessarily linked to the assets under administration. The exclusive or dominant benefit test proposed by the appellants is too narrow considering the intention of the parties, as reflected in the confident terms of the 1946 surrenders used by the Indians30"and the important responsibilities assumed by the Crown that day.
In addition to the "necessary implication" requirement, the documents under B1 must be incorporated by reference in another which is producible. Documents under B2 are those obtained or requested as a result of questions raised by the respondents with regard to the administration of their assets. Documents under B3 refer to the creation of a trust fund from moneys under trusteeship. All three categories are intimately related to the Indian assets under administration and were correctly added by the case management Judge.
The case management Judge also included in the "by necessary implication" category, documents which, though general and without reference to the assets under administration, refer to the application of the Indian Oil and Gas Act or regulations. This addition in B5 was reasonable since those legal documents have a direct bearing on the conduct adopted by the trustee with regard to the assets. He was right to exclude those applicable to third parties' interests since the respondents have no business in that regard. He was also right to exclude those dealing with legislative changes since the Crown, at that stage, acts in Her legislative capacity and not as trustee of Indian land.
Documents concerning interests of another band, which are subsequently made referable to the assets under administration, were correctly added by the case management Judge in the B category as B6. Those documents deal directly with the assets under trusteeship in Indian land.
The production of documents in category C is indispensable to the actions. They relate directly to cuts in programs and services that would have occurred considering the revenues of the assets under administration. They are part of the total picture of the administration of the trusteeship in Indian land in terms of the conduct of the trustee during Her administration. I accept the statement made by the case management Judge in this regard on March 20, 1996:31
In my opinion, the plaintiffs are entitled to access to any legal advice obtained by the Crown in relation to programs and services which advice makes reference to the mineral assets surrendered by these bands or moneys derived therefrom. The Crown in its role of trustee for the plaintiff bands had certain responsibilities. Legal advice, if there was any, about meeting those responsibilities, and any possible conflicting responsibilities of the Crown as provider of programs and services under treaty and statute, in my view, should be disclosed to the plaintiffs as beneficiaries of the Crown's trustee responsibilities arising from the 1946 surrenders.
I finally accept the case management Judge's rejection of the wider claim made by the respondents, plaintiffs in these actions:32
The plaintiffs urge that the general fiduciary relationship of the Crown to the Indians, in light of its treaty, statutory and contractual responsibilities has trust-like responsibilities that warrant close examination of any claim to privilege of relevant documents. I am not persuaded at this stage that the general relationship of the parties, aside from relations arising out of the specific variation of a trust in Indian land created by the surrenders of natural resources, and derivative responsibilities arising from the surrenders, warrants an order to produce documents on a wider scale than that now outlined.
In the end result, I would confirm the two orders rendered by the case management Judge. I would dismiss the appeal with costs. I would dismiss the cross-appeal without costs, since the appellants do not ask for costs.
Stone J.A.: I agree.
McDonald J.A.: I agree.
1 R.S.C., 1985, c. I-5.
2 R.S.C., 1985, c. I-7.
3 Statement of facts in relation to application regarding solicitor and client privilege documents. Common appeal book, Vol. III, at p. 642.
4 ;Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762 (C.A.).
5 [1982] 1 S.C.R. 860, at p. 875.
6 [1995] 4 S.C.R. 344.
7 This statement was made by the case management Judge in his reasons for judgment for both orders. See Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 528 (T.D.), at p. 547; Buffalo et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1996), 119 F.T.R. 161 (F.C.T.D.), at p. 166, para. 12.
8 Common Appeal Book, Vol. III, at p. 569.
9 The Samson list included forty-two documents numbered 1-42. The Ermineskin list included twenty-one documents numbered 43-63. The Crown produced a list in two parts. It claimed the solicitor and client privilege in both lists. The sample included fifty-nine documents plus two which were added when the matter was heard.
10 (1996), 119 F.T.R. 161 (T.D.), at pp. 171-172.
11 [1995] 4 S.C.R. 344.
12 [1997] 2 S.C.R. 657.
13 [1996] 2 S.C.R. 507.
14 [1995] 2 F.C. 762 (C.A.), at pp. 771-775.
15 The Court relied on Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335. See R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1109.
16 [1995] 2 F.C. 762 (C.A.), at pp. 771-772, 774-775.
17 [1995] 2 F.C. 762 (C.A.), at pp. 775-776.
18 [1995] 4 S.C.R. 344, at pp. 358-359.
19 Id., at p. 362.
20 [1984] 2 S.C.R. 335, at p. 363.
21 [1995] 4 S.C.R. 344, at p. 363.
22 D. W. M. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), at p. 1008; A. H. Oosterhoff: Text, Commentary and Cases on Trusts, 4th ed. by A. H. Oosterhoff and E.E. Gillese (Toronto: Carswell, 1992), at pp. 760ff.
23 D. W. M. Waters, Law of Trust in Canada, 2nd ed. (Toronto: Carswell, 1984), at p. 750; A. H. Oosterhoff: Text, Commentary and Cases on Trusts, 4th ed. by A. H. Oosterhoff and E. E. Gillese (Toronto: Carswell, 1992), at p. 547; Fales et al. v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302.
24 It should be noted that in the case at bar, as in the Blueberry River Indian Band case, the surrender was framed as trust. See infra, note 30.
25 See also Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335, at p. 390 (per Dickson J., as he then was) where the quantum of damages was determined by analogy with the principles of trust law.
26 [1997] 2 S.C.R. 657.
27 [1996] 2 S.C.R. 507.
28 [1996] 2 S.C.R. 507, at p. 536.
29 ;Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 528 (T.D.), at p. 550.
30 The 1946 surrenders (Common Appeal Book, Vol. IV, at pp. 711-712) relate to land and minerals and state in part:
TO HAVE AND TO HOLD the same unto his said Majesty the King, his Heirs and Successors, forever, in trust to grant in respect of such land the right to prospect for, mine, recover and take away any or all minerals contained therein, to such person or persons, and upon such terms and conditions as the Government of the Dominion of Canada may deem most conducive to our welfare and that of our people . . . [Emphasis added.]
31 ;Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 528 (T.D.), at pp. 548-549.
32 Id., at p. 550.