a fiduciary duty.29 In the aboriginal context, a fiduciary duty
may be imposed on the federal Crown in one of two ways.
 First, a duty may arise as a result of the Crown’s assumption of discretionary control over a specific aboriginal interest.
The interest must be a communal aboriginal interest in land
that is integral to the nature of the aboriginal community and
their relationship to the land and must be predicated on historic
use and occupation.30
 Second, in cases other than ones involving lands of historic use or occupation, a fiduciary duty may arise if three elements are present: (1) an undertaking by the alleged fiduciary to
act in the best interests of the alleged beneficiary; (2) a defined
person or class of persons vulnerable to a fiduciary’s control; and
(3) a legal or substantial practical interest of the beneficiary that
stands to be adversely affected by the alleged fiduciary’s exercise
of discretion or control.31 The degree of discretionary control
must be “equivalent or analogous to direct administration of
 In my view, a fiduciary duty under the first category cannot be established in this case. The aboriginal interest in question is not an interest in land and the action herein is not being
advanced as a communal claim but as a class action seeking
 The attempt to establish a fiduciary duty under the second category also does not succeed on the evidence herein. Even
if I were to agree with the plaintiff that the first two elements
are satisfied — that the obligation to consult was an undertaking to act in the Indian band’s best interests and there existed a
vulnerable group, namely, children in need or protection —
I would still have difficulty with the third element.
 I cannot find on the evidence before me that when Canada
undertook the obligation to consult under s. 2(2) of the 1965
agreement that it assumed such a degree of discretionary control
over the protection and preservation of aboriginal identity that it
amounted to a “direct administration of that interest”. There is
no doubt that the obligation to consult was breached and this
29 Lac Minerals Ltd. v. International Corona Resources Ltd.,  2 S.C.R.
574,  S.C.J. No. 83, at p. 647 S.C.R.
30 Manitoba Metis Federation Inc. v. Canada (Attorney General), 
1 S.C.R. 623,  S.C.J. No. 14, at para. 53.
31 Alberta v. Elder Advocates of Alberta Society,  2 S.C.R. 261, 
S.C.J. No. 24, 2011 SCC 24, at para. 36; Manitoba Metis, ibid., at para. 50.
32 Elder Advocates of Alberta Society, ibid., at para. 53.