[2012] 4 F.C.R. D-2
Aboriginal Peoples
Appeal from Federal Court decision (2011 FC 361) dismissing appellant’s judicial review of respondent’s decision to transfer $5 333 334 previously held in accounts in appellant’s name to suspense account—Decision part of larger dispute arising out of amalgamation of Ocean Man, Pheasant’s Rump bands into appellant band in 1901, subsequent unwinding of that amalgamation in 1986—After amalgamation, Ocean Man, Pheasant Rump’s reserve lands sold, all or some of proceeds used to purchase land (Northern Boundary Lands) in name of amalgamated band—One contentious issue following unwinding of amalgamation extent to which reconstituted bands entitled to share in oil and gas revenue generated by Northern Boundary Lands whose purchase funded to some extent by sale of their reserve lands—In July 2009, respondent writing to appellant to advise that some of the monies received from oil and gas leases on Northern Boundary Lands together with interest paid or owing on those amounts (Fund) would be placed in suspense account pending determination of litigation—Federal Court finding Crown having power to discharge its fiduciary obligations, including placing funds in suspense account—Concluding respondent’s decision reasonable effort to ensure even-handed treatment of relevant parties—Whether respondent having right to transfer funds in suspense account, if so, whether that decision reasonable—Respondent could not do what he did—If he owed all three bands fiduciary duty in relation to Fund, then he breached duty of even-handedness between beneficiaries because he gave appellant access to one third of Fund while denying access to other two bands—If respondent did not owe Ocean Man, Pheasant’s Rump fiduciary duty, then he breached duty to act solely in interests of appellant as he had duty to avoid conflicts of interest, to act without regard to his own interest—By withholding portion of Fund from appellant, respondent essentially using trust funds to protect himself from potential claims from others—Respondent could not set aside funds held for benefit of appellant for benefit of other two Bands—In doing so, respondent breached obligation to act solely in interests of appellant with respect to Fund—Weakness in respondent’s position not that he preserved property pending litigation but that he did so unilaterally, without right—Respondent should have applied to Federal Court, where litigation pending, for directions—Appeal allowed.
White Bear First Nations v. Canada (Indian Affairs and Northern Development) (A-171-11, 2012 FCA 224, Pelletier and Stratas JJ.A., judgment dated August 27, 2012, 21 pp.)