Blueberry River First Nation v Laird, 2020 BCSC 1615

The Court dismissed various claims against members of two past governments of the First Nation who were also directors of the trustee for a trust for its members. The plaintiffs alleged breach of fiduciary duty, breach of trust, and negligence regarding roughly $11 million of transfers made from the trust to the First Nation over a four-year period. They also sued the former Band administrator for alleged breach of contract and fiduciary duty, negligence, knowing assistance, and knowing receipt. All claims were dismissed and the evidence failed to show impropriety or dysfunction.

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The Plaintiffs sue members of two past governments of the Blueberry River First Nation [“BRFN”], a band as defined in the Indian Act. Against those Defendants, the Plaintiffs allege a breach of fiduciary duty, breach of trust and negligence. The BRFN includes approximately 500 members, about half of whom live on the BRFN reserve. The reserve is located about an hour and a half by car north of Fort St. John, in northeast British Columbia.

The Blueberry Trust [“Trust”], and predecessor trusts, were established to hold and manage $76 million that the BRFN received in 1998 from its claim against Canada for damages arising out of the surrender of reserve land in 1945, and Canada’s disposition of the underlying mineral rights. The central dispute is to do with the transfer of approximately $11 million from the Trust to the First Nation and related entities, in a number of transfers over a four-year period.

The Defendants believe the claims against them in this action are politically motivated, and not based on bona fide legal grievances. There is another defendant, Mr. Laird, who was brought into this case as a defendant at the time when the operating minds of the Plaintiffs appear to have decided that the Defendants were taking money from the Trust for their own purposes. The Court believes the Plaintiffs kept Mr. Laird as a defendant on the theory that the other Defendants would have needed his help in implementing their wrongful plans. The same people who are suing Mr. Laird, however, asked him to come back in 2014, to assist the new government of the Nation for the 10 weeks Mr. Laird had available in his schedule. Mr. Laird had the misfortune to be joined in this action, along with several others against whom the Plaintiffs eventually discontinued their claims, simply because he happened to be one of those who had contracted to work with the Defendants-lead governments. Mr. Laird did excellent work for the Band throughout his employment as Band administrator. It was a difficult role for anyone at any time in the Band’s recent history, given the numerous and serious social problems the Band faces.

The current leadership of the Band points to the value of the Trust dropping substantially while the Defendants were the Chief or on Council, which in itself raised flags of suspicion about possible breaches of fiduciary duty and other wrongs. All of the members of the two Councils in the four year period testified that they considered financial issues within the BRFN as they arose, particularly when such matters were brought before them for consideration and decisions.

Documents in evidence showed during this period, the Chief and Council taking a number of steps to address the BRFN’s financial procedures and financial issues that were of concern at the time. Chief and Council did not have the skills to reform the financial department themselves. All they could do was obtain skilled advice, try to retain skilled employees, and support the reform proposals that were recommended. That is what they did. It was not an easy task, in part because it is difficult to retain skilled employees to work for the BRFN due, at least in part, to the isolation of the reserve. In the circumstances, they generally took appropriate steps, and improved the financial department’s performance while maintaining what they believed was an appropriate balance as between curbing overspending and maintaining needed social and health support programs.

Financial matters were not all that the Chief and Council had to deal with. Of significant importance were the many health and social issues that members of the BRFN faced, and in some cases, struggled with. Drug addition, domestic violence, mental health and the health and safety of the BRFN’s children were all important issues for the Chief and Council to address. The health and wellbeing of the members was a priority for the Chief and Council during this time period. In addition to supporting the health department, school, and working with the RCMP in relation to gang issues, they retained professionals to deliver workshops to the members and provide consulting services, and supported implementing an action plan to address social challenges. The Chief and Council during the four year period also took positive steps toward improving governance by retaining a former Chief, and Calgary lawyer, to prepare a Governance Manual.

The evidence elicited at trial showed a governing group that worked together, did its best to address the many issues and challenges that the BRFN faced during that time, and performed its duties satisfactorily. The claims against the Defendants, for knowing assistance, breach of fiduciary duty and negligence, as well as for breach of trust, are dismissed.

Lac Seul First Nation v Canada, 2017 FC 906

Wiyasiwewin Mikiwahp Native Law Centre Case Watch

Canada breached its fiduciary duty to the Plaintiffs and must pay equitable damages of $30 million; third party claims against Ontario and Manitoba dismissed.

The Lac Seul First Nation [LSFN] claimed that Canada breached its treaty with the LSFN (Treaty No. 3), the Indian Act, and its fiduciary duties and obligations. LSFN sought damages from Canada for losses from the flooding of part of the LSFN Reserve following the construction of the Ear Falls Storage Dam where Lac Seul drains into the English River. LSFN requested punitive damages and costs along with equitable compensation for a loss of opportunity for hydroelectric benefits, past present and future, in the amount of $506.6 million including avoidable losses due to erosion, loss of timber and community infrastructure in the amount of $40 million.

The Lac Seul Storage Project provided the water reservoir necessary to permit power generation for the City of Winnipeg and Northwestern Ontario. In 1929, the Ear Falls Storage Dam was completed, as part of a project to maximize the potential for hydroelectric developments on the Winnipeg River in Manitoba to provide power to the City of Winnipeg. The parties agreed that this part of the LSFN Reserve land is now under water. With the flooding, the LSFN lost the use and enjoyment of this portion of its Reserve. Other impacts from flooding on the LSFN included lost houses, wild rice fields, and the separation by water of two of its communities, Kejick Bay and Whitefish Bay.

Ultimately the Court assessed the Plaintiffs’ equitable damages at $30 million. The factors considered included the amount of the calculable losses and that many of the non-quantifiable losses created in 1929 persisted over decades, and some still continue. The failure to remove the timber from the foreshore created an eyesore and impacted the natural beauty of the Reserve land. This created a long-term water hazard effecting travel and fishing for members of the LSFN. The flooding negatively affected hunting and trapping. Although Canada supplied the materials to build the replacement houses, the LSFN members supplied their own labour. The LSFN docks were not replaced, as well hay land, gardens and rice fields were destroyed. Two LSFN communities were separated by water and one became an island, impacting the ease of movement of the people who lived there. Canada failed to keep the LSFN informed and never consulted with the band on any of the flood related matters that affected it, creating uncertainty and anxiety for the band. Canada failed to act in a prompt and effective manner to deal with compensation with the LSFN prior to the flooding and many years after the flooding, despite being aware of the negative impact on the band members.

It was determined that this $30 million in equitable compensation would be sufficient to put LSFN back in the place they would have been but for the breach and would meet the objectives of retribution, deterrence, and denunciation, as there have been no punitive damages awarded in an Aboriginal law context. A declaration was also sought that the LSFN legal interests in the flooded lands and the freeboard area have not been encumbered or extinguished. Canada admitted and accepted that LSFN had “retained the flooded Reserve lands.” A declaration would therefore serve no purpose. Canada claimed a defence of laches, but this defence does not apply as the trial record revealed a singular failure of Canadian government departments to communicate with the members of the LSFN. Similarly, the decisions made regarding the cutting of timber on the foreshore, the use of the unemployed men as a relief project, and its later abandonment were events that also occurred with little or no communication with the LSFN. Lastly, the negotiation of a payment to the LSFN was done in 1943 and accepted by Canada with no evidence that the LSFN was ever informed of the structure of the settlement, or its amount.

It is inexplicable in the evidence as to why Canada took no steps either at the time of the first flooding or subsequently to legally authorize the expropriation through flooding of these Reserve lands. Moreover, no compensation was paid to LSFN relating to the flooded lands or consequent damages suffered until November 17, 1943, which was not an appropriate amount and was in breach of Canada’s fiduciary duty to LSFN. Canada defended the main action and commenced third party claims against both Ontario and Manitoba for contribution and indemnity, pursuant to the terms of the Lac Seul Conservation Act (Canada) and An Act Respecting Lac Seul Storage (Ontario). Where the third parties have no fiduciary duty to the beneficiary, the defendant cannot apportion its liability for equitable compensation to them. Canada is not being asked to pay more than its share of the losses as it is solely responsible for them.