only a unique and pre-existing “special relationship” based on
both history and law but a clear obligation to consult the beneficiaries about matters of existential importance.
 I pause here to acknowledge that strictly speaking the
third party beneficiaries under the 1965 agreement were the
Indian bands not the apprehended children — that is, not the
class members. It is certainly open to Canada to take the position that the breach of the agreement and the duty of care that
flowed from this breach applied only to the Indian bands and not
to the removed Indian children. I remain confident, however,
that such a formalistic argument, fully acceptable in the commercial context, will not be advanced in the First Nations context where notions of good faith, political trust and honourable
conduct are meant to be taken seriously,36 and where Canada’s
breach of the 1965 agreement was so flagrant.
 If I am wrong in my conclusion that the common law duty
of care as alleged herein can be established under existing law
as just described, and instead is better understood as a novel
claim, I now turn to the analysis that applies when dealing with
a novel claim.
 The applicable legal approach is the “two stage” analysis
known as the Anns-Cooper test.37 The first stage question is
whether the facts disclose a relationship of proximity in which
failure to take reasonable care might foreseeably cause loss or
harm to the plaintiff. If this is established, a prima facie duty of
care arises and the analysis proceeds to the second stage, which
asks whether there are any residual policy reasons why this
prima facie duty of care should not be recognized.38
 In my view, under the first stage of the analysis, a prima
facie duty of care is established. It is beyond dispute that
there is a special and long-standing historical and constitutional
36 As the Supreme Court noted in R. v. Sparrow,  1 S.C.R. 1075, 
S.C.J. No. 49, at p. 1108 S.C.R.: “[t]he relationship between the Government and aboriginals is trust-like rather than adversarial”; and in
Manitoba Metis, supra, note 30, at para. 77: “an honourable interpretation of an
obligation cannot be a legalistic one that divorces the words from their
37 The analysis set out by the House of Lords in Anns v. Merton London Borough Council,  A.C. 728,  2 All E.R. 492 (H.L.) was refined and
applied by the Supreme Court of Canada in Cooper v. Hobart, 
3 S.C.R. 537,  S.C.J. No. 76, 2001 SCC 79.
38 R. v. Imperial Tobacco Canada Ltd.,  3 S.C.R. 45,  S.C.J.
No. 42, at para. 39.