What is the test for a claim of breach of fiduciary duty in an aboriginal dispute?

Alberta, Canada


The following excerpt is from Callihoo v. Canada (Indian Affairs and Northern Development), 2003 ABQB 1044 (CanLII):

The claim of a breach of fiduciary duty in such circumstances is not the same as the dispute in Weywaykum Indian Band v. Canada, [2002] S.C.J. No. 79, 2002 SCC 79. In that case, The Cape Mudge forebears, whose conduct is now complained of, were autonomous actors, apparently fully informed, who intended in good faith to resolve a ‘difference of opinion’ with a sister band. They were not dealing with non-Indian third parties... It is patronizing to suggest, on the basis of the evidentiary record, that they did not know what they were doing, or to reject their evaluation of a fair outcome. Taken in context, and looking at the substance rather than the form of what was intended, the 1907 Resolution was not in the least exploitive.

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