T-1140-78
Lawrence Pawis (Plaintiff)
v.
The Queen (Defendant)
T-2095-78
Godfrey McGregor (Plaintiff)
v.
The Queen (Defendant)
T-2096-78
Eli McGregor (Plaintiff)
v.
The Queen (Defendant)
T-1526-78
Clarence E. Boyer (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Ottawa, June 5, 6
and July 20, 1979.
Crown — Indians — Contract — Treaty — Breach of
contract and breach of trust obligations — Tort — Negligent
misrepresentation — Plaintiffs, all registered Indians and
residents of reserves, convicted separately under Ontario Fish
ery Regulations of various offences that occurred while fishing
for food at usual places using customary methods — Alleged
that a right, granted by Treaty, had been taken away —
Damages sought — Whether or not Crown had breached its
contractual obligations undertaken by Treaty — Whether or
not Crown had failed to perform trust obligations concerning
privileges granted the Ojibway people and undertaken by
Treaty — Whether or not Crown's authorized representatives
had made negligent misrepresentation acted on by plaintiffs to
their detriment — Fisheries Act, R.S.C. 1970, c. F-14 —
Ontario Fishery Regulations, SOR/63-157, ss. 4(5), 12(1) —
The Limitations Act, R.S.O. 1970, c. 246.
Each plaintiff is a registered member of an Ojibway Band
and a resident of an Indian reservation. During the years 1975
and 1977, at different dates and places, each plaintiff was
apprehended, charged and convicted under various sections of
the Ontario Fishery Regulations. At the time of their various
offences, plaintiffs were fishing for food for themselves and
other members of their respective Bands, at a place where they
had often fished in the past and in a manner which was
customary to them. They thought that they had always had the
right to fish where they were and as they pleased. Their
convictions convinced them that that right had been taken away
from them. Plaintiffs claim that the Crown breached the
contractual obligations that it had undertaken in the Lake-
Huron Treaty of 1850 by enacting the Ontario Fishery Regu
lations without exempting the Ojibway Indians from their
application. Plaintiffs also contend that the Crown failed to
perform the trust obligations, respecting the privilege granted
the Ojibway Indian people, that it had taken upon itself in the
Treaty. Lastly, plaintiffs allege negligent misrepresentation on
the part of the Crown in that plaintiffs acted to their detriment
on statements made by authorized representatives of the
Crown.
Held, the action is dismissed. The wording of the Treaty does
not import any intention that there be unrestricted rights and
perpetuity to fish regardless of the laws regulating the means of
hunting and fishing. The Crown could not legally bind itself in
1850 not to enact legislation regulating methods of fishing; the
promises made in the Treaty so far as they were intended to
have effect in a legal sense and in a legal context could not be
made otherwise than subject to possible future regulations. The
Crown did not undertake an obligation in the Lake-Huron
Treaty to keep the privilege of hunting and fishing granted the
Indians immune from any, general regulations governing the
exercise of those activities. The legal enactment by Parliament
of a particular piece of legislation cannot give rise to an action
for damages against the Crown for breach of contract. Even if
the Crown were liable for a breach of this contract, the
plaintiffs do not have status, individually and personally, to
obtain the relief sought for the Treaty, by its terms, is made
with the Ojibway people collectively. Then, too, the Court
cannot entertain an action whose cause occurred as far back as
1868 when the first The Fisheries Act was enacted, or 1889
when the first Ontario Fishery Regulations were made. The
allegation that the cause of action arose when plaintiffs were
apprehended by the fishery officer, charged and convicted and
therefore was within the time limited by law is not accepted by
the Court. The prerequisites for the existence of a proper trust
that may be the subject-matter of an action before a court do
not exist. There is no subject-matter here capable of being
"held" or "administered" by a trustee for the benefit of a
beneficiary. The Crown did not take upon itself a trust obliga
tion in the technical sense by entering into the Lake-Huron
Treaty. The actions cannot succeed on the basis of negligent
misrepresentation. The statements by a former Minister of
Indian Affairs concerning recognition of lawful obligations
imposed on the Crown and on which plaintiffs claim to have
relied to their detriment were not misrepresentation, and were
not inaccurate and misleading. They could not be taken as
overriding a legislation that had been in existence for so long,
and they could not be construed as inducing the Indians to
disobey the law.
Government of Malaysia v. Selangor Pilot Association
[1977] 2 W.L.R. 901, considered. M. A. Hanna Co. v. The
Provincial Bank of Canada [ 1935] S.C.R. 144, considered.
Attorney-General for the Dominion of Canada v. Attor-
ney-General for Ontario [1897] A.C. 199, considered.
Kinloch v. The Secretary of State for India in Council
(1881-82) 7 App. Cas. 619, considered.
ACTION.
COUNSEL:
J. D. Richard, Q.C., Paul Williams and Lynn
Harnden for plaintiffs.
E. A. Bowie and M. A. Kelen for defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: These four actions were heard
together, on common evidence. Not only are they
related, they are identical as to their significant
facts (which are uncontested), the legal issues
involved (breach of contract, breach of trust, negli
gent misrepresentations) and the reliefs sought
(general, special and punitive damages).
Each plaintiff is an Ojibway Indian, a registered
member of a Band of Ojibways and a resident of
an Indian reservation. Lawrence Pawis belongs to
the Shawanaga Band and lives on the Shawanaga
Reserve; Clarence E. Boyer is a Mississaugi Band
member and resides on the Mississaugi #8
Reserve; Eli and Godfrey McGregor, uncle and
nephew, are both of the Whitefish River Band and
both reside on the Whitefish River Reserve.
During the years 1975 and 1977, at different
dates and places, the four plaintiffs went through
similar unfortunate experiences. While fishing on
the waters bordering their respective Reserves,
they were apprehended by fishery officers and
charged under various sections of the Ontario
Fishery Regulations, SOR/63-157 enacted pursu
ant to the Fisheries Act, R.S.C. 1970, c. F-14.
They were later convicted by a provincial court,
their equipment was confiscated and they were
fined. Pawis had breached subsection 4(5) of the
said Regulations by fishing yellow pickerel with a
spear during a closed season, while the others had
contravened subsection 12(1) by using a gill net
without the authority of a licence. At the time of
their offences, the plaintiffs were fishing for food
for themselves and other members of their respec
tive bands, at a place where they had often fished
in the past and in a manner which was customary
to them. Of course, the experience was determina-
tive for each of them: since their convictions, the
plaintiffs have abided by the Regulations.
The plaintiffs, however, did not see fit to leave
things as they stood. They thought that they had
always had the right to fish where they were and
as they pleased. Their convictions under the
Ontario Fishery Regulations convinced them that
that right had somehow been taken away from
them. They decided to seek relief in Court and
commenced the present proceedings by filing their
respective statements of claim in March, April and
May 1978.
The plaintiffs are not acting in a representative
capacity nor are their actions class actions. Each
one is individually and personally suing the
defendant, Her Majesty the Queen in right of
Canada, claiming for himself, general, special and
punitive damages. The four actions are however
based on the same alleged causes and the para
graphs relating thereto are identically framed in
the four declarations. I think it proper to
reproduce these paragraphs verbatim (with the
numbering used in the Pawis and McGregor
actions):
3. On the 9th day of September, 1850, at Sault Ste. Marie, in
the Province of Canada, an agreement was entered into be
tween the Honorable William Benjamin Robinson, of the one
part, on behalf of Her Majesty the Queen, and Shinguacouse
N ebenaigoching, Keokouse, Mishequonga, Tagawinini,
Shabokishick, Dokis, Ponekeosh, Windawtegowinini,
Shawenakeshick, Namassin, Naoquagabo, Wabakekik, Kitch-
possigun by Papasainse, Wagemaki, Pamequonaisheung,
Chiefs; and John Bell, Paqwatchinini, Mashekyash, Idowekesis,
Waquacomick, Ocheek, Metigomin, Watachewana, Min-
wawapenasse, Shenaoquom, Oningegun, Panaissy, Papasainse,
Ashewasega, Kageshewawetung, Shawonebin; and also Chief
Maisquaso (also Chiefs Muckata, Mishoquet, and Mekis), and
Mishoquetto and Asa Waswanay and Pawiss, principal men of
the Ojibewa Indians, inhabiting and claiming the Eastern and
Northern Shores of Lake Huron, from Pentanguishine to Sault
Ste. Marie, and thence to Batchewanaung Bay, on the North
ern Shore of Lake Superior; together with the Islands in the
said Lakes, opposite to the Shores thereof, and inland to the
Height of land which separates the Territory covered by the
charter of the Honorable Hudson Bay Company from Canada;
as well as all unconceded lands within the limits of Canada
West to which they have any just claim, of the other part,
which agreement expressly provided the following.
That for, and in consideration of the sum of two thousand
pounds of good and lawful money of Upper Canada, to them
in hand paid, and for the further perpetual annuity of six
hundred pounds of like money, the same to be paid and
delivered to the said Chiefs and their Tribes at a convenient
season of each year, of which due notice will be given, at
such places as may be appointed for that purpose, they the
said Chiefs and Principal men, on behalf of their respective
Tribes or Bands, do hereby fully, freely, and voluntarily
surrender, cede, grant, and convey unto Her Majesty, her
heirs and successors for ever, all their right, title, and interest
to, and in the whole of, the territory above described, save
and except the reservations set forth in the schedule hereunto
annexed; which reservations shall be held and occupied by
the said Chiefs and their Tribes in common, for their own use
and benefit
And the said William Benjamin Robinson of the first part,
on behalf of Her Majesty and the Government of this
Province, hereby promises and agrees to make, or cause to be
made, the payments as before mentioned; and further to
allow the said Chiefs and their Tribes the full and free
privilege to hunt over the Territory now ceded by them, and
to fish in the waters thereof, as they have heretofore been in
the habit of doing; ...
4. The Honourable William B. Robinson, signatory to said
Treaty on behalf of Her Majesty the Queen, submitted a report
to the Honourable Colonel Bruce, Superintendent-General of
Indian Affairs dated September 24, 1850, wherein it was
stated:
In allowing the Indians to retain reservations of land for their
own use I was governed by the fact that they in most cases
asked for such tracts as they had heretofore been in the habit
of using for purposes of residence and cultivation, and by
securing these to them and the right of hunting and fishing
over the ceded territory, they cannot say that the Govern
ment takes from their usual means of subsistence and there
fore have no claims for support, which they no doubt would
have preferred, had this not been done.
6. The Agreement or the Treaty entered into on September 9,
1850, and referred to in paragraph 3 herein is binding on the
Crown.
7. The Agreement or the Treaty dated September 9, 1850, and
referred to in paragraph 3 herein has not been repudiated or
renegotiated by the Crown.
8. The Crown, through Ministers of the Crown, has on a
number of occasions recognized the lawful obligations imposed
on the Crown by treaties entered into with the Indian people
such as the one set out in paragraph 3 herein.
9. On or about the 8th day of August, 1973, the then Minister
of Indian Affairs and Northern Development published the
following statement in Ottawa:
Many Indian groups in Canada have a relationship with the
Federal Government which is symbolized in Treaties entered
into by those people with the Crown in historic times. As the
Government pledged some years ago, lawful obligations must
be recognized. This remains the basis of Government policy.
10. On or about January 21, 1976, the then Minister of Indian
Affairs and Northern Development in a letter to Chief Flora
Tabobondung of Parry Island Indian Band in reply to a petition
presented to His Excellency the Governor General by 15 Indian
Chiefs from the Lake Huron area stated as follows:
While the Federal Government's policy is to honour the spirit
and the letter of all its treaty obligations towards the Indian
people, we have concluded that we cannot open the treaties
to renegotiation.
15. By enacting the Ontario Fishery Regulations under the
Fisheries Act, the Crown breached and contravened treaty and
contractual obligations which were solemnly undertaken and
entered into in the Lake Huron Treaty of 1850 referred to in
paragraph 3 herein.
16. The Plaintiff has suffered damage resulting from the inter
ference with his right of fishing by reason of the actions of the
Crown.
17. The Plaintiff relied to his detriment on the statements
made by the authorized representatives of the Crown set out in
Paragraphs 8, 9 and 10.
18. The actions by the Crown constitute a breach of the
contractual and trust obligations toward the Ojibway people
solemnly undertaken in the Lake Huron Treaty of 1850.
Before embarking upon an analysis of the
claims, I wish to repeat here what I had occasion
to say in open Court at the closing of the hearing,
however obvious it may be. This is a Court of law.
As a Judge of this Court, I am not called upon to
pass judgment on the legitimacy of the Indian
people's grievances as these have been lately so
often formulated. I must leave to others the task to
deal properly and fairly with the so-called Indian
cause in all its political and social aspects. The
question for me, today is not whether the Indians
have been unfairly treated; it is whether, on the
facts herein alleged, judicial redress can be had
against the Federal Crown. My responsibility is
strictly to dispose of the four actions as they stand
and to do so I cannot go beyond asking whether
there is a legal and enforceable obligation on the
part of the defendant to make good the claims for
damages asserted therein.
There is one cause of action clearly pleaded:
breach of contract. The plaintiffs say that by
enacting the Ontario Fishery Regulations under
the Fisheries Act without exempting the Ojibway
Indians from their application, the Crown
breached the contractual obligations it had under
taken in the Lake-Huron Treaty of 1850. A second
cause of action is brought in to supplement the
first one: breach of trust. The plaintiffs say that
the Crown in the Lake-Huron Treaty took upon
itself trust obligations respecting the privilege
granted to the Ojibway Indian people, which obli
gations it failed to perform. A third and subsidiary
cause of action is said to flow from the allegations
contained in paragraphs 8, 9, 10 and 17 of the
declarations: negligent misrepresentation. The
plaintiffs say that they acted to their detriment on
statements made by authorized representatives of
the Crown.
Obviously these three causes of action are linked
to one another, so in dealing at length with the
first one I will be led to make comments which will
apply to the others. Nevertheless, since they bring
into play different legal rules and principles, they
must be considered separately.
1. The issue of breach of contractual obligations
Some preliminary remarks ought to be made to
clarify and circumscribe the issue here.
(i) It is obvious that the Lake-Huron Treaty,
like all Indian treaties, was not a treaty in the
international law sense. The Ojibways did not then
constitute an "independent power", they were sub
jects of the Queen. Although very special in nature
and difficult to precisely define, the Treaty has to
be taken as an agreement entered into by the
Sovereign and a group of her subjects with the
intention to create special legal relations between
them. The promises made therein by Robinson on
behalf of Her Majesty and the "principal men of
the Ojibeway Indians" were undoubtedly designed
and intended to have effect in a legal sense and a
legal context. The agreement can therefore be said
to be tantamount to a contract, and it may be
admitted that a breach of the promises contained
therein may give rise to an action in the nature of
an action for breach of contract.
(ii) It is common ground that the Lake-Huron
Treaty is still binding on the Crown: it has not
been renegotiated or repudiated by the Crown.
(iii) Section 91(12) of The British North
America Act, 1867, [R.S.C. 1970, Appendix II]
assigned to the Federal Crown control over and
responsibility for inland fisheries. The first The
Fisheries Act was enacted by Parliament in 1868
[S.C. 1868, c. 60] (R.S.C. 1886, c. 95). Pursuant
to the provisions of that Act, the Governor in
Council was given the authority and the duty to
make regulations for the purpose of management
and conservation of fisheries within the limits of
the various provinces. The Ontario Fishery Regu
lations are the Regulations which were thus adopt
ed under the authority of The Fisheries Act for the
purpose of management and conservation of fish
eries within the limits of the Province of Ontario.
These Regulations were first enacted in 1889; they
have been revised several times since, the last
revision having occurred on May 9, 1963 (P.C.
1963-709). It must be noted that the provisions of
the Ontario Fishery Regulations enacted in 1963
under which the plaintiffs were charged and con-
victed—namely section 12 thereof which prohibits
certain types of fishing except under a licence and
section 4(5) which establishes closed seasons—
were not new: all of the previous sets of Regula
tions contained provisions substantially to the
same effect. The fishery officers responsible for
the enforcement of the Regulations are employed
by the provincial government but are of course
acting as agents of the Federal Crown. Although
the Regulations have always been formally made
applicable to the Indians (definition of "person" in
section 2(1)(w)), prior to their apprehension the
plaintiffs themselves, and the members of their
respective bands, had not been disturbed by fishery
officers with respect to their way of fishing.
(iv) The plaintiffs do not challenge the validity
of the Fisheries Act or its Ontario Fishery Regu
lations. They readily admit that the power of
Parliament to legislate could not be impeded by
the terms of any treaty or agreement entered into
by the executive branch of the State. They do not
overlook the well-known basic constitutional prin
ciple that the sovereignty of Parliament cannot be
fettered (Attorney-General of British Columbia v.
Esquimalt and Nanaimo R. Co. [ 1950j 1 D.L.R.
305 (P.C.)).
With these precisions in mind, the legal reason
ing on which the actions rest, in so far as they are
based on an alleged breach of contract, is easier to
understand. It can be formulated as follows. While
the fisheries legislation is undoubtedly valid, the
passing of such legislation by the Federal Crown
and its implementation against the Indians were
made contrary to an obligation undertaken in the
Treaty and constituted therefore a breach of con
tract for which the plaintiffs themselves are per
sonally entitled to damages. Three propositions are
put forward in that reasoning, to wit: (a) that the
Crown assumed in the Treaty an obligation not to
regulate the fishing of the Ojibway Indians; (b)
that the passing of the Regulations constituted a
breach of that obligation for which damages are
recoverable in a Court of law by the other party to
the contract; (c) that, as a result of such a breach,
the plaintiffs, who are "the other party to the
contract", have suffered a loss and are personally
entitled to be indemnified therefor. Each of these
three propositions must of course be verified in
order for the reasoning as a whole to be accept
able. I will therefore consider them in order.
(a) The first proposition implies that, by grant
ing the Indians "the full and free privilege to hunt
over the territory now ceded by them, and to fish
in the waters thereof as they have heretofore been
in the habit of doing", the Crown was as a conse
quence assuming formally the obligation not to
regulate in any way the manner in which such
fishing was to be done. This I cannot accept.
First, I do not think that properly understood
the words used convey the broad and unlimited
meaning that would otherwise be necessary. I
agree that the word "full", in the context, is
difficult to define; but if it seems to connote a
plenary quality, a completeness of the right, it is,
in my view, strictly as regards the right of the
owner or possessor of the land. As to the word
"free", to me it simply means that no consider
ation is to be exacted from those entitled to hunt
and fish in exercise of the right. In fact, it is not so
much the words "full and free" than the expres
sion "as they have heretofore been in the habit of
doing" that was invoked by counsel in support of
the plaintiffs' basic contention. But the expression,
as I understand it, does not refer to the methods
used but to the purpose for which the activity was
carried on. It refers to the extent of the hunting
and fishing. The right is not restricted to hunting
and fishing for sport. Nor are there words express
ly referring to it as hunting and fishing commer
cially. The right is defined by reference to what
the tribes had theretofore been in the habit of
doing. What that may have been may be lost in
obscurity but it is nevertheless the extent of the
right. The words have nothing to do with the
manner of fishing. Such interpretation, it seems to
me, is the most reasonable one since any other
would have the effect of limiting the Indians, in
the exercise of their privilege, to the means of
fishing and hunting that were theirs in 1850. And
it is the interpretation that is in better conformity
with the statements made by the Signatory to the
Treaty in his report referred to in paragraph 4 of
the plaintiffs' declaration reproduced above. In
brief, I agree with counsel for the defendant that
the wording does not import any intention that
there be unrestricted rights and perpetuity to fish
regardless of the general laws regulating the
means of hunting and fishing.
But, be that as it may, even if the wording were
taken as conveying an unambiguous unlimited
meaning leaving no room for interpretation, I
would still believe that a restriction with respect to
eventual general regulations would have to be
inferred and supplied, in like manner that clauses
that are customary or necessary are supplied in
ordinary contracts between individuals. Since it is
clear that, in 1850, the Crown could not legally
bind itself to not enact legislation regulating meth
ods of fishing, the promises made in the Treaty, so
far as they were intended to have effect in a legal
sense and a legal context, could not legally be
made otherwise than subject to possible future
regulations. Counsel for the plaintiffs made a great
deal of the fact that in subsequent treaties, espe
cially the so-called "numbered treaties", entered
into by the Crown with other Indian bands, the
similar granting of hunting and fishing privileges
was always expressly made "subject to such regu
lations as may from time to time be made by Her
Government of Her Dominion of Canada": in my
view, such a proviso had the great advantage of
expressing clearly the rule of law and avoiding all
possible misunderstanding or eventual impression
of deceit, but legally speaking it did not add
anything. The right acquired by the Indians in
those treaties was, in the Canadian legal system,
necessarily subject in its exercise to restriction
through acts of the legislature, just as the person
who acquires from the Crown a grant of land is
subject in its enjoyment to such legislative restric
tions as may later be passed as to the use which
may be made of it.
In brief, I do not think that in the Lake-Huron
Treaty, the Crown undertook an obligation to keep
the privilege of hunting and fishing granted to the
Indians immune from any general regulations gov
erning the exercise thereof.
(b) The second proposition raises the question
of whether, assuming that the Treaty was meant to
confer a privilege of hunting and fishing that could
not be restricted by any laws relating to manage
ment and conservation, the enactment of the fish
eries legislation amounted in law to a breach of
contract giving rise to an action for damages sus
tainable in a court of law?
My answer to this question is simple. I cannot
understand how the legal enactment by Parliament
of a particular piece of legislation can give rise to
an action for damages against the Crown for
breach of contract. How can a legal act be at the
same time an act to be sanctioned as an illegal
breach of contract? If a debtor is liable to pay
damages when he fails to perform his contractual
obligation, it is because the law does not approve
of such conduct and forces him to pay the loss
resulting from his failure. The debtor brought
upon himself the reprobation of the law. He will
not be so liable if the inexecution of the obligation
was caused by an unavoidable and irresistible
force, independent of his own conduct, for instance
supervening illegality, unless he has obliged him
self thereunto by the special terms of the contract.
The Crown cannot be treated here as having
brought upon itself the reprobation of the law.
The cause of action I am dealing with here,
must it be reminded, is that of breach of contract.
The plaintiffs are not claiming that they are en
titled to compensation because the legislation had
the effect of taking away their property. That
would be a completely different matter, although I
doubt that such a claim could have been sustained
since the mere regulating of the exercise of the
privilege to fish and hunt does not result in the
taking away of the privilege itself amounting to a
dispossession of property. As was said by Wright
J. in France Fenwick and Company, Limited v.
The King [1927] 1 K.B. 458 at p. 467 in a passage
that was cited with approval by the majority of the
Judicial Committee in Government of Malaysia v.
Selangor Pilot Association [ 1977] 2 W.L.R. 901:
I think, however, that the rule can only apply (if it does apply)
to a case where property is actually taken possession of, or used
by, the Government, or where, by the order of a competent
authority, it is placed at the disposal of the Government. A
mere negative prohibition, though it involves interference with
an owner's enjoyment of property, does not, I think, merely
because it is obeyed, carry with it at common law any right to
compensation. A subject cannot at common law claim compen
sation merely because he obeys a lawful order of the State.
In my view, the enactment of the fisheries legis
lation may perhaps have been invoked by the
Ojibway Indians as calling for a renegotiation of
the Lake-Huron Treaty, but it could not give rise
to an action for damages in a court of law for
breach of contract.
(c) Coming to the last proposition on which the
plaintiffs' legal reasoning relies, I find it likewise
unacceptable. Even if it could have been said that
the enactment of the Fisheries Act and the Regu
lations applicable to Ontario amounted to a breach
of contract for which the Crown is liable in dam
ages, the plaintiffs, in my view, would not have
been individually and personally entitled to obtain
the relief they seek today. My reasons here are
twofold.
On the one hand, the plaintiffs would not, it
seems to me, have had the status to sue as
individuals. The Treaty, by its terms, is made with
the Ojibway people collectively. Those Indians
who signed the Treaty are referred to in it as
"principal men of the Ojibeway Indians". The
Treaty provides for the annuity payments to be
made "to the said Chiefs and their tribes". The
surrender is referred to in the Treaty as being by
"the said Chiefs and principal men on behalf of
their respective tribes or bands". It is stated that
the lands reserved "shall be held and occupied by
the said Chiefs and their tribes in common for
their own use and benefit". The Treaty allows "the
said Chiefs and their tribes the full and free
privilege to hunt over the territory now ceded by
them, and to fish in the waters thereof as they
have heretofore been in the habit of doing". The
Schedule of Reservations describes each as being
for one of "the Chiefs or Principal men and his
band". Although each individual Ojibway Indian
was to benefit from the Treaty, it seems to me that
the language used therein precludes the idea that
each individual was a party to the contract and
had therefore the status to sue personally and
individually for an alleged breach thereof. Since
the Treaty was negotiated and entered into with
the Ojibway Indians taken as a group, it seems to
me that an action based on the Treaty, alleging
breach of the promises subscribed therein toward
the group, could only be instituted by the contract
ing party itself, that is to say, the group. Of course,
I am not saying that the collectivity of all living
Ojibway Indians can be as such the owner of
rights; I am not overlooking the fact that it has no
legal personality. What I mean is that, the Treaty
having been negotiated and entered into with the
Chiefs in the name of all of the members of their
Bands, it could not then be contemplated that a
right of action for eventual breach thereof was to
accrue to each Ojibway Indian, and each of his
descendants, individually and personally.
On the other hand, the Court cannot entertain
today an action whose cause occurred as far back
as 1868, when the first The Fisheries Act was
enacted, or 1889 when the first Ontario Fishery
Regulations were made. The plaintiffs contend
that their actions were commenced within the time
limited by law (namely The Limitations Act,
R.S.O. 1970, c. 246), since they were denied the
privilege allegedly granted to them by the Treaty
and suffered the damage for which they seek
compensation, only when they were apprehended
by the fishery officer, charged, and finally convict
ed. Such a contention is unacceptable. If it can be
argued that the privilege granted by the Treaty
was intended to be unconditional, it certainly
cannot be denied that from the moment the legis
lation was passed the situation changed. The act
complained of which removed the privilege
occurred at that moment, and the limitation period
therefore started then. The Indians were legally
bound to abide by the Regulations regardless of
the inaction of the fishery officers. The plaintiffs
themselves never enjoyed that "unconditional
privilege" to fish they say their forefathers had
been given by the Treaty. The breach of contract
they allege, and the damage they say was thereby
caused to the Ojibways, occurred long before they
were born.
From the foregoing discussion, one can only
conclude that on the basis of breach of contract,
the actions are ill-founded. Indeed, there was no
breach of a contractual obligation; such a breach,
if it had occurred, would not have given rise to a
right of action for damages and, in any event, if
the right existed, the plaintiffs would not have
been personally entitled to exercise it.
2. The issue of breach of trust obligations
The basic suggestion here is that the Lake-
Huron Treaty of 1850 created a trust, the subject-
matter of which was the "full and free privilege to
hunt over the territory now ceded by them, and to
fish in the waters thereof as they have heretofore
been in the habit of doing". It is, however, a
suggestion that I am again unable to accept.
There is no doubt that the Crown can take upon
itself trust obligations which are enforceable in a
Court of Equity (Tito v. Waddell (No. 2) [1977] 3
All E.R. 129). It is equally true that no specific
form of words is necessary to create a trust, and
that a treaty of that nature ought to be liberally
construed. But I fail to see how one can find here
the prerequisites for the existence of a proper trust
that may be the subject-matter of an action before
a court. As was said by Cannon J. in M. A. Hanna
Co. v. The Provincial Bank of Canada [1935]
S.C.R. 144 at 167:
To completely constitute a trust, four elements are required:
(a) A trustee; (b) A beneficiary; (e) Property the subject-
matter of the trust; (d) An obligation enforceable in Court of
Equity on the trustee to administer or deal with the property
for the benefit of the beneficiary. There must be an equitable
interest based on a conscientious obligation which can be
enforced against the legal owner of the property alleged to be
the subject-matter of the trust. Otherwise there is no trust.
How can the privilege to hunt and to fish be the
"property of a trust"? There is no subject-matter
here capable of being "held" or "administered" by
a trustee for the benefit of a beneficiary. Unless
the lands said to be ceded were to be considered as
being the trust property? That suggestion, how
ever, cannot hold since there never has been any
doubt that the title to the lands was already vested
in the Crown before 1850, and the Treaty cannot
be construed as purporting to recognize in favour
of the Indians a right different in nature than that
of a licensee.
In Attorney-General for the Dominion of
Canada v. Attorney-General for Ontario [1897]
A.C. 199, the Judicial Committee of the Privy
Council, in deciding questions that turned upon
the construction of the very Treaty which forms
the subject-matter of this trial, and its sister-
treaty, the Lake-Superior Treaty, arrived at the
following conclusion [at page 213]:
Their Lordships have had no difficulty in coming to the
conclusion that, under the treaties, the Indians obtained no
right to their annuities, whether original or augmented, beyond
a promise and agreement, which was nothing more than a
personal obligation by its governor, as representing the old
province, that the latter should pay the annuities as and when
they became due; that the Indians obtained no right which gave
them any interest in the territory which they surrendered, other
than that of the province; and that no duty was imposed upon
the province, whether in the nature of a trust obligation or
otherwise, to apply the revenue derived from the surrendered
lands in payment of the annuities.
That case was concerned with the payment of the
annuities promised in the Treaties but it seems to
me that the same reasoning must apply with
respect to the other promise contained therein,
that is the promise of a licence to fish and hunt.
In my view, it cannot be said that, by entering
into the Lake-Huron Treaty, the Crown took upon
itself a trust obligation. I mean, of course, a trust
obligation in the technical sense. The expression
"trust obligations" is sometimes used to refer to
"governmental obligations" and in that sense it
may perhaps be properly applied to the obligations
created by the Treaty. But "trust obligations" of
that type are not enforceable as such. The distinc
tion between trust obligations enforceable in the
Courts of Chancery and these governmental or
trust obligations in the higher sense is referred to
by Lord Selborne L.C. in Kinloch v. The Secretary
of State for India in Council (1881-82) 7 App.
Cas. 619 at 625-626:
Now the words "in trust for" are quite consistent with, and
indeed are the proper manner of expressing, every species of
trust—a trust not only as regards those matters which are the
proper subjects for an equitable jurisdiction to administer, but
as respects higher matters, such as might take place between
the Crown and public officers discharging, under the directions
of the Crown, duties or functions belonging to the prerogative
and to the authority of the Crown. In the lower sense they are
matters within the jurisdiction of, and to be administered by,
the ordinary Courts of Equity; in the higher sense they are not.
(See also Tito v. Waddell (No. 2) referred to
above.)
In any event, assuming that true trust obliga
tions were in fact created by the Treaty, the
problem would remain as to the content thereof
and the nature of the duties imposed on the Crown
as trustee. Much of what 1 said in analyzing the
contractual obligation of the Crown would simply
have to be repeated, and the conclusion would be
the same. The facts do not support the allegation
of a breach of trust giving rise to an action for
damages.
3. The issue of negligent misrepresentation
In four paragraphs of their declarations (8, 9, 10
and 17) the plaintiffs state that they relied to their
detriment on statements made in 1973 and 1977
by former Ministers of Indian Affairs to the effect
that the policy of the Government was to "recog-
nize the lawful obligations imposed on the Crown
by treaties entered into with the Indian people".
I do not accept the contention of counsel for the
plaintiffs that these allegations raised a third and
different cause of action, that of negligent mis
representation by authorized representatives of the
defendant. It is not pleaded that the statements
were made either negligently or with intention to
deceive but only that the statements were made
and relied upon with resulting detriment and that,
in my view, was not sufficient to properly raise the
issue. But, in any event, it is clear to me that the
actions would have had no chance of success on
that basis. Leaving aside the question of whether
the Crown can be held vicariously liable for
allegedly negligent political statements made by its
Ministers, I simply believe that the statements
referred to were not misrepresentations. They were
not inaccurate nor were they misleading. They
could not be taken as overriding a legislation that
had been in existence for so long, and they were
not meant to, nor could they be construed as
inducing the Indians to disobey the law. Besides,
as mentioned above, it was part of the plaintiffs'
cases that they had always fished the way they
were fishing when they were apprehended: they
can hardly pretend that they were really
influenced by the statements, and were then
behaving as they were in view of what they had
been told to be the policy of the Government.
I can see no substance whatever in the conten
tion that an action for damages against the Queen
could lie as a result of the above-mentioned state
ments referred to in the declaration.
For all the foregoing reasons, I must conclude
that none of the three causes of action alleged by
the plaintiffs can be sustained. Counsel for the
plaintiffs presented the cases as being novel in the
long series of unsuccessful attempts made by the
Indians in their quest to seek judicial redress for
the allegedly unfair treatment to which they have
been subjected in the past. Unfortunately, he
failed to convince me that the new approach
adopted had any more merit in law.
The actions will therefore be dismissed. I see no
reason why the defendant should be deprived of
her costs, if she demands them, although of course,
there shall be only one set of Court costs for the
four actions.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.