Date: 20021210
Docket: T-2153-00
Neutral Citation No. : 2002 FCT 1281
BETWEEN:
CAMERON WATSON, SHARON BEAR, CHARLIE BEAR
WINSTON BEAR and SHELDON WATSON
being the Heads of Family of the direct descendants of the
Chacachas Indian Band, representing themselves and all other
members of the Chacachas Indian Band,
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS and THE OCHAPOWACE
FIRST NATION,
Defendants
AND BETWEEN:
Docket: T-2155-00
WESLEY BEAR, FREIDA SPARVIER, JANET HENRY,
FREDA ALLARY, ROBERT GEORGE, AUDREY ISAAC,
SHIRLEY FLAMONT, KELLY MANHAS, MAVIS BEAR
AND MICHAEL KENNY, on their own behalf and
on behalf of all other members of the Kakisiwew Indian Band,
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS and OCHAPOWACE
INDIAN BAND NO. 71
Defendants
AND BETWEEN:
Docket: T-2463-91
CHIEF DENTON GEORGE, ROSS ALLARY, LAIRD ALLARY,
WESLEY BEAR, MARGARET BEAR, ALBERT ISAAC AND
LLOYD BEAR, CHIEF AND COUNCILLORS OF THE
OCHAPOWACE INDIAN BAND NO. 71
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AND TOM SIDDON, MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Defendants
[1] One of the principal issues raised by the pleadings in these actions is the propriety of a settlement negotiated by the Crown in the context of the Specific Claims process with the Ochapowace Indian Band in 1994 relating to certain alleged irregularities in a surrender taken from the Band in 1919 and the subsequent conveyance by the Crown to the Soldier Settlement Board of certain reserve lands. The plaintiffs claim to represent two bands, which became the Ochapowace Indian Band as a result of the amalgamation of the Chacachas and Kakisiwew Indian Bands which they say continued to exist notwithstanding their purported amalgamation. The two predecessor bands had been signatories to Treaty #4 in 1874.
[2] In their memorandum, the plaintiffs put it thus:
...the Plaintiffs in the two actions allege that they are today, and have always been, two separate First Nations. They also allege that this position and the facts in support of their position were made known to the federal Crown prior to the negotiation of agreements between Canada and the Ochapowace Indian Band in the 1990's. They allege that Canada's failure to take these facts into account in settlement discussions, and failure to adequately advise, constituted a breach of fiduciary duty. Canada's defence is that settlement agreements were negotiated and executed in the 1990's with the Ochapowace First Nation, and the plaintiffs are now estopped from asserting that two independent First Nations continue to exist, or that the Ochapowace Indian Band was not properly a party to and a signator (sic) to the agreements.
[3] The present motion relates to a claim by the Crown to privilege in certain documents which it would otherwise be obliged to disclose. The number of such documents, at the outset over 500, had been reduced by the efforts of counsel at the beginning of the hearing to just over 50. These were originally divided into two lists, the documents in Appendix A being said to be subject to the litigation or "lawyer's brief" privilege, and those in Appendix B being the subject of claimed to solicitor and client privilege. This division, however, lost its relevance during the hearing when Mr. Kindrachuk for the Crown abandoned (quite properly, in my view) the litigation privilege claim while continuing to maintain that some documents and parts of documents in Appendix A which directly reflected the legal advice which had been sought or obtained by the Crown were still subject to the solicitor and client privilege. I then directed Mr. Kindrachuk to edit out those documents or parts of documents (relatively few in number and unsubstantial in content), which in my view, after I had examined them, were of a nature to disclose the legal advice sought or obtained by the Crown. As so edited, those documents, and the remaining documents in Appendix A, are to be disclosed to the plaintiffs.
[4] As to the documents listed in Appendix B, apart from a few irrelevant exceptions, such as fax cover pages and duplicates of documents already listed, they are all in my view on their face properly the subject of a claim of solicitor and client privilege. They consist of communications passing back and forth between officers of the Specific Claims Branch and the Department of Justice regarding the negotiations which led to the 1994 settlement agreement. Notwithstanding this fact, however, the plaintiffs argue that the documents should be disclosed because, in their submissions, the privilege has been waived. As I understand it, this argument takes two forms.
[5] First, it is said, by pleading the 1994 settlement, the Crown has waived any claim to privilege with respect to legal advice obtained in the course of reaching that settlement. I disagree. If by simply pleading a transaction which one had entered into after obtaining legal advice, such as, to take a simple example, the purchase of a house, one were held to have lost one's right to maintain the confidentiality of legal advice the solicitor client privilege would for all practical purposes disappear. It is to be noted that the Crown, while pleading the settlement, has not pleaded the receipt of legal advice, in relation thereto. The case is thus similar to the situation dealt with by Grotsky J. of the Saskatchewan Queen's Bench as follows in Lac La Ronge Indian Band v. Canada, [1996] S.J. No. 555:
The legal opinions are not relevant to the issues in this action. They are not necessary to explain the facts disclosed in the documents which have been produced. Canada's production of documents which set out its position in relation to Treaty Land Entitlement does not constitute a waiver of solicitor and client privilege with respect to the legal opinions sought. A mere reference in correspondence, as aforesaid, to legal opinions, does not constitute a waiver of solicitor and client privilege in the circumstances of this case.
[6] The second branch of the argument is to the effect that because one or more of the documents already released by the Crown without objection make mention of the fact that legal advice has been sought and obtained on certain subjects, or that certain proposed provisions of the settlement have or have not received lawyers' approval, the claim to solicitor and client privilege is thereby waived. Again I disagree. The litigant who tells his adversary that he has received a legal opinion to the effect that he is sure to win may be as imprudent as the lawyer who gives such advice, but he does not thereby lose his right to claim privilege in the advice actually received.
[7] The plaintiffs also argue that their position is somehow improved by the fact that they are alleging breach of fiduciary duty and that this has the effect of opening up to them the benefit of any legal opinions received by the Crown on their behalf in its fiduciary capacity. This too is wrong, as the Court of Appeal decided in Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762. The cases dealing with the position of a private law trustee's claim of privilege against a beneficiary of the trust are not applicable to claims against the Crown in its fiduciary capacity towards aboriginal peoples, it being in that respect both more and less than an ordinary trustee:
The Crown can be no ordinary "trustee". It wears many hats and represents many interests, some of which cannot but be conflicting. It acts not only on behalf or in the interest of the Indians, but it is also accountable to the whole Canadian population. It is engaged in many regards in continuous litigation. It has always to think in terms of present and future legal and constitutional negotiations, be they with the Indians or with the provincial governments, which negotiations, it might be argued, can be equated in these days and ages with continuous litigation. Legal advice may well not have been sought or obtained for the exclusive or dominant benefit of the Indians, let alone that of the three bands involved in these proceedings. Legal advice may well relate to policy decisions in a wide variety of areas which have nothing or little to do with the administration of the "trusts". It is doubtful that payment of the legal opinions given to the Crown is made out of the "private" funds of the "trusts" it administers¼
[8] Nothing in the principles which I have set out above is altered by the fact that the breach of fiduciary duty alleged relates primarily to the negotiation, execution and implementation of agreements to settle pending claims rather than to treaty entitlement. The allegation that the Crown negotiated and executed an improvident bargain with the plaintiffs does not put the latter in any better position in their claim to intrude into the confidential relationship between the Crown and its legal advisers or serve to distinguish their case from the situations dealt with by the courts in the Samson and Lac LaRonge decisions supra.
[9] An order will go in accordance with the above allowing the motion in part. There will be no order as to costs.
ORDER
The documents listed in Appendix A, as edited by the Court during the hearing, are not privileged and shall be produced; the documents listed in Appendix B are privileged and need not be produced.
Judge
December 10, 2002
Ottawa, Ontario
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2153-00
STYLE OF CAUSE: Cameron Watson et al v. Her Majesty the Queen et al
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: November 21, 2002
REASONS FOR ORDER : Hugessen, J.
DATED: December 10, 2002
APPEARANCES:
Mr. Douglas Kovatch FOR PLAINTIFF
Mr. Mark Kindrachuk FOR DEFENDANT, HMQ
Mr. Mervin Ozirny and FOR DEFENDANT,
Mr. Marvin Phillips OCHAPOWACE
SOLICITORS OF RECORD:
Silversides Kovatch Zborosky Beauchemin FOR PLAINTIFF
Regina, Saskatchewan
Mr. Morris Rosenberg FOR DEFENDANT, HMQ
Deputy Attorney General of Canada
Phillips & Millen FOR DEFENDANT,
Regina, Saskatchewan OCHAPOWACE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2155-00
STYLE OF CAUSE: Wesley Bear et al v. Her Majesty the Queen et al
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: November 21, 2002
REASONS FOR ORDER : Hugessen, J.
DATED: December 10, 2002
APPEARANCES:
Mr. Robert Mitchell and FOR PLAINTIFF
Ms. Sandra Mitchell
Mr. Mark Kindrachuk FOR DEFENDANT, HMQ
Mr. Mervin Ozirny and FOR DEFENDANT,
Mr. Marvin Phillips OCHAPOWACE
SOLICITORS OF RECORD:
Mitchell Law Firm FOR PLAINTIFF
Dundurn, Saskatchewan
Mr. Morris Rosenberg FOR DEFENDANT, HMQ
Deputy Attorney General of Canada
Phillips & Millen FOR DEFENDANT,
Regina, Saskatchewan OCHAPOWACE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2463-91
STYLE OF CAUSE: Chief Denton George et al v. Her Majesty the Queen et al
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: November 21, 2002
REASONS FOR ORDER : Hugessen, J.
DATED: December 10, 2002
APPEARANCES:
Mr. Mervin Ozirny and FOR PLAINTIFF
Mr. Marvin Phillips
Mr. Mark Kindrachuk FOR DEFENDANT, HMQ
SOLICITORS OF RECORD:
Phillips & Millen FOR PLAINTIFFS
Regina, Saskatchewan
Mr. Morris Rosenberg FOR DEFENDANT, HMQ
Deputy Attorney General of Canada