Federal Court

Aboriginal Peoples

Court could not substitute its own assessment as to what was in best interests of band

Parties were engaged in complex litigation. Applicants alleged various breaches of trust or fiduciary duties by Canada related to Canada’s management of mineral rights associated with applicants’ reserve lands, in particular, management of oil and gas leases on land and resulting royalties. Applicants brought motion seeking transfer of current and future money that represented royalties from oil and gas leases on applicants’ reserve lands and interest earned on royalties, which were held by Canada in trust for or for benefit of First Nation. Subgroups of First Nation, who were separately recognized as bands under Indian Act (Can.), claimed they had right to insist on transfer of per capita share of funds. Minister of Aboriginal Affairs and Northern Development made decision not to effect transfer of money in accordance with terms proposed by applicants. Motion dismissed. Applicants had not sought judicial review of Minister’s decision but requested that court accept and endorse terms of transfer they proposed and order Minister to comply with them. However, applicants had not established legal basis upon which court could accept and endorse their terms of transfer and order Minister to comply, irrespective of powers granted to Minister under Act. There was no basis to usurp Minister’s exercise of discretion under s. 64(1)(k) of Act. Court could not disregard powers under Act that Parliament had granted to Minister and substitute its own assessment as to what was in best interests of band. No convincing legal authority or principle had been provided to justify such substitution. Applicants were essentially seeking order in nature of mandamus, which court did not have jurisdiction to grant in context of motion. Concerns of Canada could not be described as mere impediments.

Bearspaw Band v. Canada (Sep. 25, 2013, F.C., James Russell J., File No. T-2344-93) 234 A.C.W.S. (3d) 531.

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