ABORIGINAL PEOPLES |
Lands |
Wetzel v. Canada (Attorney General)
T-747-94
Hugessen J.
28/1/00
7 pp.
Plaintiff suing Crown for breach of trust, fiduciary duty, and in tort--Plaintiff Aboriginal person of American origin--Living in Newfoundland on lands now forming part of Miawpukek Reserve since 1972--Asserting title to those lands through wife, her ancestors dating back to 1870; transferred interest in 1985 to then Chief on condition when Reserve created would be granted permit to live on lands previously occupied for as long as wished--Chief transferred lands to federal Crown in 1987 on condition Crown would use lands for purposes of creating Reserve--Creation of Reserve, legal establishment of Band ultimately effected by Order in Council in 1984--Plaintiff not eligible to become member when Band created because criteria established by Order in Council requiring members to be Canadians--Application dismissed--As to question of title, sufficient in material to indicate plaintiff enjoyed some kind of important interest in property transferred--In similar position to number of other members of future Band before became Band in legal sense--After investigating claims of such people, Crown clearly taking view had interest of such value Crown required to acquire, pay for such interest prior to formal creation of Reserve--Crown in fact acquiring interest from others, but not from plaintiff since his rights already acquired by Crown from Chief--Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 applied with respect to attitude one should take of law of evidence where dealing with Aboriginal claims--Law of evidence must take account of fact Aboriginal communities frequently not having written records, and much of what is known passed down from generation to generation through oral tradition--Not impossible that Court could conclude on evidence herein plaintiff enjoyed real right in property; that such right, property had value, and transferred by plaintiff to Chief for purpose of creation of Reserve--Genuine issue for trial--Claim for breach of trust, fiduciary duty raising genuine issue for trial--That prior transfer from plaintiff to Chief recited in transfer from Chief to Crown, and fact Crown paying others in situations similar to plaintiff's to acquire their rights, seeming to permit possible inference Crown fixed with knowledge of condition upon which Chief received plaintiff's property--Plaintiff alleging Crown committed tort against plaintiff when issued criteria for Band membership such as to exclude plaintiff--Alleged tort not actionable on ground policy, legislative, administrative governmental decisions cannot be subject of action in tort.