and culture and the available federal benefits would have been
provided years sooner and would probably have been provided,
via the CAS, to both foster and adoptive parents and not just
Returning to the Common Issue
 Let me sum up what I have found thus far. I have found
that Canada was obliged under s. 2(2) of the 1965 agreement to
consult with each Indian band before any provincial welfare
program, including child welfare services, was extended to the
reserve in question. I have found that no such consultations
ever took place. I have also found that if the Indian bands had
been consulted they would have suggested, amongst other
things, that information about the apprehended child’s aboriginal heritage and the availability of federal benefits be provided
to the foster or adoptive parents. This booklet alone, assuming
that the foster and adoptive parents would have shared this
information with the aboriginal child in their care,27 would
probably have prevented the loss of the apprehended child’s
 That is, Canada failed to take reasonable steps to prevent
the loss of aboriginal identity in the post-placement period by
failing, at a minimum, to provide to both foster and adoptive
parents (via the CAS) the kind of information that was finally
provided in 1980 and thereafter.
 Was Canada legally obliged to provide such information?
The plaintiff says yes and makes two submissions, one based on
fiduciary law and the second based on the common law. For the
reasons that follow, I find that Canada’s liability cannot be
established under fiduciary law but can be established under the
common law. I will explain each of these findings in turn.
Fiduciary Duty of Care
 The law of fiduciary duty as it applies in the aboriginal
context is not in dispute. Although the federal Crown stands in
a fiduciary relationship with Canada’s aboriginal peoples,28 a
fiduciary relationship alone does not necessarily give rise to
27 Supra, note 23.
28 Guerin v. Canada,  2 S.C.R. 335,  S.C.J. No. 45 and Quebec
(Attorney General) v. Canada (National Energy Board),  1 S.C.R.
159,  S.C.J. No. 13.