Canada (Attorney General) v. Lameman

Supreme Court of Canada – [2008] 1 S.C.R. 372

---

Alberta Fiduciary dutyIdentityTreaties

Issue

Did the Crown breach its fiduciary duty by omitting to clearly inform the Band members of the consequences of “taking script” and pressuring the leadership to surrender their tract of lands, and did it breach its treaty obligations  by not giving the full 48 square miles to the Band and by not distributing a sufficient amount of food?

Decision

The case is prescribed (unanimous decision).

Parties

Between: Canada

And: Rose Lameman, Francis Saulteaux, Nora Alook, Samuel Waskewitch and Elsie Gladue, on their own behalf and on behalf of all descendents of the Papaschase Indian Band No. 136 , Alberta

Interveners: Assembly of First Nations and Federation of Saskatchewan Indian Nations

Facts

In the 1850s, a small number of families known as the Papaschase Indians established themselves in the area around Fort Edmonton (Shirt, 2006: 1). In 1877, the Papaschase Indians signed Treaty No. 6 with the Crown. They were allotted in exchange a reserve located southeast of Fort Edmonton (within the boundaries of current-day Edmonton) and annuities for each of the Band members. They became known as the Papaschase Indian Band No. 136.

In 1880, the reserve was surveyed by the Department of Indian Affairs. The treaty planned for 48 square miles of land, but due to a disagreement between the Surveyor and the Band concerning the exact number of members (the Crown recognized only 241 of the 249 Band members), only 40 square miles were transferred to the Band and annuities were given to 188 members.

Between 1880 and 1886, animosity arose between the Papaschase Indian Band and Edmonton settlers, who petitioned the federal government for removal of the reserve. Meanwhile, on the reserve, the Band suffered from starvation: the quasi-extinction of the buffalo had deprived them of their main food resource.

 In 1885, the first Half Breed Scrip Commission was created by the federal government to deal with Métis land claims. It began to distribute scrips to Métis residing in the Northwest Territories, which were certificates that could be exchanged for a tract of land or money, thereby extinguishing their claims to the territories (Id.: 2). Agents offered them to the Papaschase Band members, even though they were not Métis. Most of the Band members, including their chief, surrendered their treaty and reserve rights for money scrips a year later.

In 1889, the remaining Band members surrendered the reserve land to the federal government, which agreed to sell it to settlers. The proceeds were to be administered by Indian Affairs and held in trust for the Band members and their descendents. They later joined with the Enoch Band.

Since the 1930s, the Crown failed to respect the terms of the agreement. In the mid-1970s, a group of descendents of the Papaschase Indian Band mandated a lawyer to inquire about the surrender of their ancestors’ reserve. They also funded research by a graduate student on the same subject, which related the same facts as those stated here. In 2001, five descendents of Chief Papaschase sued the Crown on behalf of the descendents of the Papaschase Indian Band for its actions during the surrender of the Papaschase reserve, seeking $2.5 billion in compensation (CBC News, 2008). The Band is not recognized by the federal government. The descendents are numbered in the thousands. They appointed Rose Lameman as chief.

Arguments

The descendents of the Papaschase Indian Band: The Crown breached its fiduciary duty by not informing Band members of the consequences of taking the scrip and by wrongfully pressuring the leadership to surrender their tract of lands after the settlers petitioned the federal government for the Band’s removal. The legal procedure for surrender was not followed by the Crown at the time: the reserve lands were sold below their market value, and the proceeds were mismanaged by the Indian Affairs Department. The last claim concerned the Crown’s breach of its treaty obligations by not giving the full 48 square miles to the Band and by not distributing a sufficient amount of food during the famine.

The Crown: The descendents’ claims should be dismissed since their allegations cannot be the subject of examination by a court of law, as they did not have sufficient standing and the claims are statute-barred by limitations.

Decision of the lower courts

Court of Queen’s Bench of Alberta, 2004: The majority of the descendents’ claims did not have enough factual and legal bases, and were dismissed. Three triable issues remained: the size of the reserve, the management of the proceeds from the reserve’s sale and the breach by the Crown of its treaty obligation to provide the Band with food. However, the plaintiffs lacked standing and their claims were statute-barred. The motion for summary judgement against the descendents of the Papaschase Indian Band was allowed.

Court of Appeal of Alberta, 2006: The lower court’s decision is reversed. The issues were found to be triable. The plaintiffs had standing to bring the action in the courts as it would have been unfair to deny them band status since they alleged the destruction by the Crown of the Papaschase Indian Band.  As for the limitation issues, these should be decided in trial. The motion for a summary judgement against the descendents is dismissed and the case is sent back to trial.

Reasons for Judgement

Jury

McLachlin, Binnie, LeBel, Deschamps, Fish, Abella, Rothstein

Reason

The Crown’s appeal should be allowed and the descendents’ case dismissed. The purpose of the summary judgement is to prevent unmeritorious claims from going to trial. Canada must prove that the descendants’s case is based on no material facts requiring trial. When an action is barred by statutes of limitation, it is considered to be of “no genuine issue for trial.”

In Wewaykum, the Court stated that limitation periods do apply to Aboriginal claims. In Alberta, the limitation period runs for six years after the discovery of the cause of action or after the fact ought to have been discovered by a plaintiff exercising due diligence. In this case, the cause of action was discovered in 1974 since correspondence between the same Papaschase descendents’ lawyer and the Department of Indian Affairs and Northern Canada showed that they were considering suing the Crown for a land claim in the near future. The cause of action became discoverable in the 1970s and that a reasonable person in the same situation as the plaintiff should have found it.

Impact

After the ruling, Chief Lameman expressed her disappointment in Canadian media outlets. The only positive effect was the gain in public awareness of Aboriginal issues (Kleiss, 2008).

The lawyers who tried the case remarked that the descendents of the Papaschase Indian Band were at a great disadvantage because they were not recognized as a band pursuant to the Indian Act, thus making them ineligible to negotiate with the federal government outside the courts (Kleiss, 2008).

For Eugene Meehan, who argued the case before the Supreme Court, the decision will have a negative impact on Aboriginal groups. The Supreme Court denied access to an Aboriginal group whose mobilization capacity was already hampered by not being recognized legally and politically, first, by ruling on a legal technicality, and second, by failing to accept the limitation defence for an ongoing treaty obligation. The Crown might increase its recourse to litigation instead of negotiation. The only positive effect is that another dispersed band with a similar claim could try to build a test-case on the same issues as the Lameman case since they were never brought to trial because the plaintiffs’ claims were dismissed by a summary judgement (Meehan, 2008).

As for the revival of a dormant group such as the Papaschase First Nation, legal scholars suggested that the group could be recognized as a band if it had a close connection with its predecessors and their numbers were roughly the same (Olthuis, 2009: 39).