Date: 20000202
Docket: T-747-94
BETWEEN:
MICHAEL GERALD WETZEL
Plaintiff
- and -
Attorney General of Canada
Defendant
REASONS FOR ORDER
(Delivered orally from the Bench at Ottawa
on Friday, January 28, 2000)
HUGESSEN J.
[1] This is a motion for summary judgment brought by the defendant Crown. The plaintiff has sued the Crown asserting broadly two causes of action, the first being breach of trust or breach of fiduciary duty and the second being in tort.
[2] The plaintiff is an aboriginal person of American origin but he has lived in Canada since 1970 and since 1972 in the area of Conne River in Newfoundland on lands which now form part of the Miawpukek Reserve. The plaintiff asserts that he had title to those lands through his wife and she, through her ancestors dating back to at least 1870; he further asserts that he transferred that interest in those lands to the then Chief of the Band, Chief Joe, in January of 1985 on condition that when the Reserve was created he, the plaintiff, would be granted a permit to live on the lands that he had previously occupied for as long as he wished.
[3] Chief Joe in his turn transferred what he had received from the plaintiff together with similar interests which he had received from a number of other then members of the Band to the Federal Crown in May of 1987. The only express condition of that second transfer was that the Crown would use the lands for the purposes of creating a Reserve.
[4] The plaintiff had been actively involved in the negotiations between the Crown and the future Band which had led to the creation of the Reserve and the legal establishment of the Band which was ultimately effected by Order in Council in 1984. The plaintiff, however, could not become a member of the Band when it was created because in the criteria established by the Order in Council for being a member of the Band, it was set out that members must be Canadians. The plaintiff as I have said is an American.
[5] The Crown takes two overarching points with regard to the plaintiff's claim for breach of trust and breach of fiduciary duty. The first is that the plaintiff's claim is and must be based on his having title to the lands in question and he has not proved such title; the second is that he has not shown that the Crown itself was fixed with the trust or fiduciary duty which was created in the transfer from the plaintiff to Chief Joe.
[6] In the view that I take of this case, I think it is best not to comment too fully on the evidence because it is my view that the claim for breach of trust and fiduciary duty raises a genuine issue and ought to go to trial.
[7] With respect to the question of title, while I think that the plaintiff has not succeeded in showing full formal legal title, I think there is in the material sufficient to indicate clearly that he enjoyed some kind of important interest in the property which he transferred. He asserts that the property had been in the possession and occupation of his wife's family since as I say 1870. He further asserts that he took over and acquired the right to that possession and occupation with the consent of his wife's family and that he improved the land to a considerable extent. Added to that, is the undoubted fact that he was viewed by at least a number of people as having some kind of important interests in that land. He granted an easement for the establishment of a hydro right of way. He was in a similar position to a number of other members of the future Band before it became a Band in the legal sense and the Crown, after investigating the claims of such people, clearly took the view that they had an interest which had a value which required the Crown to acquire and pay for such interest prior to the formal creation of the Reserve. The Crown did in point of fact acquire that interest from others but not from the plaintiff since his rights, whatever they were, had already been acquired by the Crown from Chief Joe.
[8] I believe that this is the sort of case where the teachings of the Supreme Court in Delgamuukw1 with respect to the attitude that one should take of the law of evidence where one is dealing with aboriginal claims (and I do not thing that the doctrine is limited in this respect to claims of aboriginal title in the technical legal sense of that term) should apply. The view we should take of the law of evidence must take account of the fact that aboriginal communities frequently do not and did not have written records and that much of what is known can only be known through oral tradition passed down from generation to generation. I think in those circumstances it is not at all impossible that a Court could conclude on the evidence that I have before me, that the plaintiff enjoyed a real right in that property, that such right and the property itself had value and that it was transferred by him to the Chief for the purpose of the creation of the Reserve. I will say no more on that aspect of the case other than that there is here a genuine issue for trial.
[9] With regard to the second point taken by the Crown on the claim based on breach of trust or breach of fiduciary duty, it is said and rightly said that there is no formal condition in the transfer from Chief Joe to the Crown that the plaintiff shall be entitled to have a permit to live on the land which he had transferred to Chief Joe. However, the prior transfer from the plaintiff to Chief Joe is recited in the transfer from Chief Joe to the Crown. That together with the other circumstances that I have already mentioned, in particular the fact that the Crown was prepared to pay and did pay to others in situations similar to that of the plaintiff, good money to acquire their rights seems to permit a possible inference that the Crown was fixed with knowledge of the condition upon which Chief Joe had received the plaintiff's property. I only say that the inference is possible, I do not say that it is necessary because I do not think that on a motion for summary judgment I should decide a contested issue of fact one way or the other on a matter which should only be settled by the drawing of inferences. It seems to me that that is properly a function for a trial judge after a full hearing of the evidence. In short, a genuine issue for trial. Accordingly, I am not prepared to strike that part of the claim which rests on a allegation of breach of trust and breach of fiduciary duty.
[10] It is otherwise with respect to the second and very much subsidiary aspect of the claim based on tort. It is said that the Crown through its servants committed a tort against the plaintiff when it failed to include his name either originally or subsequently in the lists of persons who were members of the Band and issued criteria for membership in the Band which were such as to exclude the plaintiff. In my view, the alleged tort simply is not actionable on the well known theory that policy, legislative and administrative governmental decisions of this sort (and in this case we are dealing with a decision made by the Governor General in Council and expressed in an Order in Council) cannot be the subject of an action in tort. And that is for policy reasons which are well known and which I need not expatiate on. Accordingly, I am prepared at this stage to dismiss that part of the action which sounds in tort.
[11] There is a final aspect of the motion which is before me today, namely, having regard to certain unanswered questions on discovery. It appears that one of those questions has been withdrawn, but with regard to all the others, plaintiff's counsel now agrees that those questions to the extent that they have not been answered should be answered and an order will go to that effect.
[12] On the matter of costs of this motion, it seems to me that this is not a case in which costs should be ordered and there will be no order as to costs.
"James K. Hugessen"
Judge
Ottawa, Ontario
February 4, 2000
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1 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at p. 1081-1083.
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