Federal Court

Aboriginal Peoples

To extent that respondent mischaracterized policy, he fettered discretion

Applicant sought declaratory relief respecting respondent’s duty to negotiate in good faith. Applicant occupied territory that was part of original tract granted to First Nations by treaty. Applicant alleged that 923-acre parcel of land within original tract was wrongfully alienated by Crown in 1837. Respondent accepted claim for negotiation in 2003 in accordance with criteria of specific claims policy. Claim remained unresolved. Applicant claimed that respondent was in breach of fiduciary duty to negotiate in good faith. Applicant sought declaration that aspect of duty to negotiate in good faith was that respondent had to consider all possible options, including acquisition of third parties’ interests in tract and returning land to applicant. Application granted. Court could not interfere with negotiations or dictate that respondent take specific negotiation position. Under policy respondent could negotiate on basis of land, monetary compensation or mix of each. Respondent could decide what negotiation position he would take but duty to negotiate in good faith precluded him from publicly mischaracterizing policy. Respondent publicly stated that policy did not permit land-based settlement, only financial compensation, which was incorrect. Policy explicitly contemplated acquisition and return of land. To extent that respondent misread or mischaracterized policy, he fettered discretion. In light of respondent’s public statements, declaratory relief was appropriate. Respondent’s mischaracterization of policy affected perception of other residents in broader community who might see applicant as intransigent and demanding. Misstating tools available to respondent might impede settlement and reconciliation. Declaration to clarify governing policy had utility. There was declaration that policy permitted settlement involving return of land, including Crown purchasing land from willing sellers on voluntary basis and returning it to applicant. There was declaration that duty of good faith required Crown to acknowledge distinction between scope of administrative action available to it under policy, as opposed to action it chose to take.

Mohawks of the Bay of Quinte v. Canada (Minister of Indian Affairs and Northern Development) (Jun. 18, 2013, F.C., Donald J. Rennie J., File No. T-951-10) 229 A.C.W.S. (3d) 615.

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