Federal Court Decisions

     T-1153-97

BETWEEN:

     THE BEGETIKONG ANISHNABE

     (also known as the "Ojibways of Pic River"),

     Applicant,

     - and -

     THE MINISTER OF INDIAN AFFAIRS AND

     NORTHERN DEVELOPMENT, RON IRWIN,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     The applicant, an Indian Band ("the Band"), seeks an order directing the respondent ("the Minister") to release to the Band a certified copy of the legal opinion prepared by the Department of Justice and submitted to the Minister regarding the Band's statement of claim under the Comprehensive Land Claims Policy ("the Policy") as requested by the Band in the originating notice of motion filed May 30, 1997.

     In June 1995, the Band made a submission under the Policy. The 1986 Policy procedures outline the requirements for the presentation of such claims. The provision entitled "Acceptance of Claims" reads as follows:

Upon receipt of a statement of claim, the Minister of Indian Affairs and Northern Development will review the submission and accompanying document and seek the advice of the Minister of Justice as to its acceptability according to legal criteria. The claimant group will be advised by the Minister of Indian Affairs and Northern Development, within twelve months, as to whether the claim is accepted or rejected. In the event that a claim is rejected, reasons will be provided in writing to the claimant group.

(my emphasis)

     On July 2, 1997, the Minister objected to the production of the legal opinion prepared by the Department of Justice on the ground that the document is privileged as it contains legal advice from a legally qualified law practitioner to his client, the Minister. At the outset, the Band did not dispute the existence of the privilege but claimed that the Minister had waived the privilege. However, in its memorandum in support of the instant motion and in its oral arguments at the hearing of this motion the Band denied the existence of the privilege and added, as a further ground for disclosure, that the fiduciary relationship between the Crown and the Indians imposes a duty on the Minister to disclose the legal opinion to the Band.

1-      Solicitor-client privilege

     The Band argued that the document in question was not properly the subject of solicitor-client privilege on the ground that the communication thereof was not intended to be confidential.

     In my view, that submission is not valid. It is well established that three criteria must be met to establish a privilege. First, the communication must be between a qualified and practicing solicitor, acting in a professional capacity, and his client; second, the communication must be clearly for the purpose of seeking or giving legal advice; and, third, the communication must have been intended to be confidential.

     The Band claims that the Minister has not met the third criterion: there is no affidavit evidence that the Minister intended to keep the document confidential. In fact, the Minister did not file an affidavit to that effect, but that is not essential. The document is stamped "Protected/Solicitor-Client" and the Minister's position throughout these proceedings has been to protect the confidentiality of the document. It was filed in Court in a sealed envelope to preserve its confidentiality pursuant to a specific order of the Court dated July 25, 1997. There is no evidence that the Minister at any time intended to disclose that confidential document.

2.      Waiver of privilege

     The Band argues that the Minister expressly waived the privilege when he sent a letter to the Band voluntarily disclosing the substance of the solicitor-client communication: thus, he brought into issue the legal advice that he obtained. More specifically, the Band relies on these abstracts from the letter:

(a)      "The purpose of this letter is to provide you with the results of the review by the Department of Indian Affairs and Northern Development (DIAND) of the Begetikong Anishnabe ... Comprehensive Land Claim submission."

(b)      "The department's view is that the Begetikong Anishnabe cannot assert unextinguished Aboriginal interests to lands and resources on the north shore of Lake Superior because of the First Nation's adherence to the Robinson-Superior Treaty of 1850."

(c)      "We have been advised by the Department of Justice that, based on an analysis of claim documents, the Begetikong Anishnabe are party to the Robinson-Superior Treaty."

(d)      "While the Chief and Headmen ... did not directly participate in Robinson-Superior Treaty negotiations, the subsequent conduct of the Chief and members of the Begetikong Anishnabe, in accepting treaty annuities and in requesting and receiving a reserve, constitutes a representation by the Begetikong Anishnabe that they are party to the Robinson-Superior Treaty. This representation would be given effect in law as if the Begetikong Anishnabe had actually been a signatory to the treaty."

(e)      "For the foregoing reasons, the department's position is that there is no basis in law for accepting the comprehensive claim of the Begetikong Anishnabe.

     The Band claims that these passages from the Minister's letter indicate that the Minister intended to release his reasoning, he expressed his legal position that the Band adhered to the Treaty, the Department of Justice advised the Minister of its legal conclusions, and the Minister proceeded to provide these opinions in some detail as demonstrated in paragraphs (d) and (e) of the above abstracts. Therefore, the Minister voluntarily set out the substance of the communications and put into issue the question of what legal advice he obtained¹. He raised an affirmative defence that made his intent and knowledge of the law relevant². Where a party puts into issue the intent and knowledge of the law, this can be considered as either an express or an implied waiver³.

     If not an express waiver, then the Band argues there was a waiver by implication since the Minister may not be allowed, after disclosing that much in his letter, to withhold the remainder of the legal opinion. Where a litigant relies on legal advice as an element of his claim, or defence, the privilege which would otherwise attach to that advice is lost. The Band claims that the Minister ought not to use the privilege as a shield to prevent the Band from exploring the validity of the legal advice he received: fairness and consistency require the disclosure of the entire legal opinion⁴.

     In the Evans decision⁵, Rothstein J. of this Court considered the following factors as being relevant to the determination as to whether partial disclosure required full disclosure:

(a)      There had already been considerable disclosure of legal opinion;

(b)      It appeared that the respondent had disclosed portions of the legal advice that he considers innocuous or perhaps beneficial and had kept other information confidential which he apparently considers damaging;

(c)      Some of the information for which privilege was claimed were merely statements of existing law;

(d)      In one case, two recommendations are made, but only one is disclosed;

(e)      Some information deleted on the grounds of privilege is disclosed elsewhere in the material.

     The learned judge concluded that these factors showed inconsistency. He said as follows, at p. 7:

...The inconsistency of disclosing some solicitor-client advice and maintaining confidentiality over other advice both pertaining to the issues raised by the applicant causes me concern. In the circumstances of this case, to ensure that the Court and the applicant are not mislead, and in the interest of consistency, the respondent must be considered to have waived all rights to solicitor-client privilege.

     In the instant case, I have read the legal opinion received by the Minister and I cannot come to the conclusion that the Minister has withheld confidential information which he considered to be damaging, or that he selected merely one of several recommendations. The opinion in question provides a legal review of the comprehensive claims submitted by the Band, a summary of the Band's claim, the Band's arguments, a legal analysis, and the conclusion that there is no basis in law for accepting the Band's claim.

     On the whole, I agree with counsel for the Minister that the latter has never waived his privilege, expressly or impliedly. The mere fact that he has referred in his letter to the legal advice on which he based his opinion does not constitute waiver. In his letter the Minister wrote that he has obtained a legal opinion from the Department of Justice and that, as a result of that opinion, he finds that there is no basis in law for accepting the Band's claim. He did this pursuant to his obligations under the Acceptance of Claims provisions reproduced above.

     The Evans decision⁶ referred to by the Band deals with a case where some sections of a privileged document were revealed and others were denied to the applicant. Rothstein J. properly held that all the material ought to be disclosed, or none at all, so as to present a complete picture to the Court. Basically, it is all a question of fairness. Other cases referred to by the Band are situations where a witness relied on a legal opinion as a defence but refused to disclose the opinion. In the instant case, the Minister stands or falls on the grounds stated in his letter and he is not hiding behind a legal opinion.

     Neither can it be said that the Minister has inadvertently waived⁷ or released the document either through a reference at trial, in a pleading, or at discovery, or in an affidavit, or otherwise. The Minister has merely said that he has sought and received a legal opinion from the Department of Justice to which opinion he is entitled and on which he relies. That is not similar to a party in an action who refers to a document in a statement of claim in which case he may be called upon to produce the document. The Minister merely acted in accordance with the Acceptance of Claims referred to earlier, namely that "upon receipt of a statement of claim" by the Band, the Minister would "seek the advice of the Minister of Justice as to its acceptability according to legal criteria".

3.      Special fiduciary relationship

     The Band contends that because of the very special fiduciary relationship between the Crown and the Indians there is a legitimate entitlement in favour of the Band to access to the Minister's opinion.

     Both parties relied on the same jurisprudence and more particularly the Buffalo v. Canada⁸ case, a 1995 decision of the Federal Court of Appeal, wherein the Crown appealed the decision of the motions judge with respect to the production of certain documents for which the Crown claimed litigation privilege and legal advice privilege. The respondent Bands contended that the trust relationship between the Crown and the Bands superseded the claim of privilege, if the communications were obtained or prepared while the Crown was carrying out its duties as trustees. The Court agreed that there was a very special relationship between the Crown and the Indians and that the Crown was to be held to a high standard of honourable dealings with respect to the aboriginal peoples.

     The Federal Court of Appeal also held that the privilege was not to be regarded merely as a rule of evidence but was a substantive rule that would apply apart from litigations. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent. Where there is a trust relationship, no privilege attaches to communications between a solicitor and the trustee as against the beneficiaries. However, it does not necessarily flow that the legal advice sought by the trustee belongs automatically to the Indians when that legal advice was sought in the interest of all interested parties. As the Court said (at p. 25), the Crown "acts not only on behalf of the interest of the Indians, but is also accountable to the whole Canadian population".

     In a more recent decision between the same parties, Samson Indian Nation and Band v. Canada⁹, MacKay J. of this Court dealing with privileged Crown documents was not persuaded at that stage of the proceedings that the general relationship of the parties warranted an order to produce documents on a wider scale than outlined. Referring to the Crown as the defendant claiming privilege he said as follows, at p. 195:

...In my view, there is no ultimate onus on the defendant here claiming privilege to establish, in this case, reasons why a document so claimed is not to be assumed to be disclosed. There is no presumption favouring disclosure of any legal advice sought or received by the Crown arising from its general relationship with the plaintiffs. It is otherwise, in my view, for documents I have ordered produced which are related to the special trust-like arrangements arising from the 1946 surrenders.

4.      Disposition

     In my view, the legal opinion obtained by the Minister from the Department of Justice under the Acceptance of Claims provisions of the Policy is a privileged document. The privilege has not been waived expressly or impliedly by the Minister. The special fiduciary relationship between the Crown and the Indians does not favour disclosure in this instance.

     The application is dismissed with costs.

O T T A W A

October 27, 1997

    

     Judge

__________________

¹      Smith v. Smith, [1958] O.W.N. 135 (H.C.J.) at 136 and Chertsey Developments Inc. v. Red Carpet Inns Ltd. (1990), 74 O.R. (2d) 665 at 669-70 (Master in Chambers).

²      Alberta Wheat Pool v. Estrin, [1987] 2 W.W.R. 532 (Alta.Q.B.).

³      Manes and Silver, Solicitor-Client Privilege in Canadian Law (1993) (at p. 190).

⁴      K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs), [1996] F.C.J. No. 30 (unreported January 11, 1996) (F.C.T.D., Rothstein J.); S & K Processors v. Campbell Avenue Herring Producers Ltd. (1983), 35 C.P.C. 146 (B.C.S.C.); Hunter v. Rogers, [1982] 2 W.W.R. 189, 34 B.C.L.R. 206 (S.C.); Harich v. Stamp (1979), 27 O.R. (2d) 395 [Leave to appeal to S.C.C. refused 106 D.L.R. (3d) 340n (S.C.C.)] and Toronto-Dominion Bank v. Leigh Instruments, [1997] O.J. No. 1177, March 5, 1997 (Ont. Gen. Div.), (unreported).

⁵      supra, note 4.

⁶      supra, note 4.

⁷      Manes and Silver, supra, note 3, at p. 194.

⁸      [1995] 3 C.N.L.R. 18.

⁹      [1997] 1 C.N.L.R. 180.