As recalled in James Reynolds' A Breach of Duty: Fiduciary Obligations and Aboriginal People (Saskatoon: Purich Publishers, 2005), the celebrated legal case of Guerin v. The Queen has been described as one of the top three or four cases that advanced Aboriginal rights in the 20th century. This case arose after Musqueam Chief Delbert Guerin gained access in 1970 to the terms of the agreement that had enabled the Shaughnessy Golf and Country Club to lease 162 acres of the Musqueam Reserve in Vancouver, approximately one third of the small reserve. Reynolds describes the 26-year quest for justice by the Musqueam to gain full knowledge of, and compensation for, the lease to the exclusive golf club.

Some 13 years after the Club had taken control of the lands, an Indian Affairs employee named Graham Allen permitted Chief Guerin to examine basement archives and so become the first Musqueam to see the actual lease. The Indian Agent, Frank Anfield, had held private meetings with the representatives of the Club and negotiated the lease without full consultation with the Musqueam back in 1957. "When I read the agreement,"; says Guerin, "I phoned Ed (Sparrow), Bill (Guerin) and Mother (Gertrude Guerin) and asked them, 'How the hell did you guys agree to all these terms?' and when they read the agreement they said 'we didn't'.";

When the lease was signed, the government controlled reserve lands and Indians were not permitted to vote in federal elections. During this paternalistic era, the federal government allowed the Musqueam to be taken advantage of through the actions of Anfield, a former Anglican minister and principal of a residential school. After a Government appraiser had valued the land at $53,450 per year, Anfield pressured him to lower this amount. The appraisal was given to the Club but not the Band. Anfield also "overstated"; the appraiser's opinion of a satisfactory return to the Band members and pressured them to agree to a rent of $29,000 per year for the first ten years. They reluctantly agreed to this low rate because they wrongly believed they would be able to increase that amount to a market rent when the lease came up for renewal. Anfield did not correct their misconceptions about the proposed lease. The final version of the lease was not given to them. It stated each rental term was for 15 years -- not ten -- and there would be there was a maximum 15% increase for the second 15-year term. Future rents would not be at market rates but based on the uncleared, unimproved land value and the restricted use. Delbert Guerin's detective work also revealed that all structures (buildings) put in place by the Club could be removed by it at the end of the lease, contrary to what the Band members had understood to be the case. Anfield literally held the pen for Musqueam members when they voted on October 6, 1957.

Following the discovery of the lease, at a Musqueam General Band Meeting on December 14, 1975, a decision was made to proceed with a writ to challenge the federal government for breach of its trust responsibilities. The Musqueam initially won their case in September of 1979 with an award of compensation of $10 million plus post-judgment interest. However, the Federal Court of Appeal overturned that decision and said the Government had only a political and not a legal obligation. The Musqueam then proceeded to the Supreme Court of Canada where the award was upheld on November 1, 1984. "I consider this the second best thing that happened in my life," says Delbert Guerin. "The first important thing was my wife saying 'I do' in 1960.";

"We were pleased with the finding of liability but disappointed with the amount of the award,"; Reynolds says. "The kind of numbers we put before the court ranged from $41 million to $70 million. The trial judge agreed these figures were justified. But there were contingencies (things that might happen in the future, before the lease finishes in 2033), that were used to reduce the amount; in particular, the judge's view that the Club might leave. Of course, this has not happened. The lease is too good to the Club for them to leave before it ends in 2033.";

Reynolds, who emigrated from England in 1976, specializes in Aboriginal, banking and commercial law in Vancouver. "I call it an ABC practice,"; he says. He was one of the lawyers on the Guerin case along with lead lawyer Marvin Storrow, Lewis Harvey, Robert Banno and Steve Schachter. "Our advantage was, we weren't experts,"; says Lewis Harvey. "But we thought, this can't be, this isn't right. Marvin Storrow thought it was constructive fraud [because] the lease terms were so terrible."; As a result of Delbert Guerin's persistence, the door has been opened for Aboriginal people in Canada to seek and obtain legal remedies for wrongs done to them by the Crown. The Guerin case has also become a matter of discussion in other countries such as New Zealand and Australia. "There is no question that what the Crown did was wrong,"; says Reynolds. "In any other situation it would have been a slam-dunk. But because it was the federal government, everyone thought you couldn't sue them ... What the Guerin case did was to overturn the defence that the Crown was above the law and to achieve some measure of justice. I thought it was a story worth telling."

The Musqueam took a second legal case to the Supreme Court of Canada in 1990, winning the Sparrow case that secured the Aboriginal rights in Section 35 of the Constitution Act of 1982. These two landmark cases were key elements in persuading the provincial government to discontinue its refusal to participate in treaty negotiations for settlement of Aboriginal rights in British Columbia and they laid the foundation for the historic Supreme Court Delgamuukw (1997) decision that clearly established Aboriginal title as a legal right.

Born of British and Romany ancestry in Leatherhead, England on February, 16, 1949, Reynolds studied at the London School of Economics where he obtained his law degree in 1970 and a Ph.D. in 1974. He taught as a lecturer in law at the L.S.E. between 1970 and 1974, emigrating to Canada from England in 1976. He first worked for a bank in Toronto in international banking before moving to Vancouver to practice law in 1979. He soon became one of the legal counsel on behalf of the Musqueam Indian Band in the Guerin case. Aboriginal law has remained the focus of his practice which also includes banking and commercial law. He is the General Counsel for the Musqueam Band and acts for a number of other Aboriginal groups. He is listed as a leading practitioner of Aboriginal law in the Lexpert survey of Aboriginal lawyers. Reynolds has taught at the University of British Columbia and published many articles on legal topics in a number of legal journals. He has also published articles on gardening, particularly subtropical gardening (ie. growing palms and bananas and other subtropical plants outdoors in Vancouver). Gardening was the topic of his first book. Reynolds has been Chair of the Peoples Law School and the Vandusen Botanical Gardens Association. He has also been a director of the International Palm Society. In 2005 he was chair of the Vancouver-Burnaby branch of the Canadian Mental Health Association. He practices law with Ratcliff & Company in North Vancouver.

[Delbert Guerin is pictured at right.]

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Aboriginal Peoples & the Law: A Critical Introduction
by Jim Reynolds (UBC Press/Purich Books $29.95)

Review by Neil Vallance , 2018

Aboriginal law is often confused with Indigenous law. Understanding the difference is crucial, and Jim Reynolds could have or, should have, dealt with that issue at the very beginning of Aboriginal Peoples & the Law: A Critical Introduction, instead of in Chapter 7. That quibble aside, he does provide a thoughtful analysis of the issue, adopting the succinct definition of the Truth and Reconciliation Commission: ?Each Indigenous nation across the country has its own laws and legal traditions. Aboriginal law is the body of law that exists with the Canadian legal system?

Reynolds fills a gap in the literature on Aboriginal law in Canada. The options available to the interested reader until now have been brief articles on law firm websites and in academic journals, or fat and very expensive law school texts. Until now, there has been nothing in the middle, or a book of moderate length and price.

In his study, Reynolds adopts the succinct definition of the Truth and Reconciliation Commission: ?Each Indigenous nation across the country has its own laws and legal traditions. Aboriginal law is the body of law that exists with the Canadian legal system.?

Reynolds, who is Associate Counsel at Mandell Pinder LLP in Vancouver, notes that Canadian courts have yet to incorporate a substantive amount of Indigenous law into their deliberations.

Each of the first seven chapters deals with a different aspect of Aboriginal law: definitions, background, sovereignty, Aboriginal rights and title, treaties, consultation, and international law. In the eighth and final chapter, ?A Just Society?? Reynolds offers his own opinions, based on a long career representing First Nations in B.C., especially the Musqueam people of Vancouver. Reynolds shares his thoughts on the present state of Aboriginal law, its past achievements, and future prospects, a refreshing change from the existing literature, which typically denies any voice to the author.

While the judiciary is entitled to great respect, most commentators are overly deferential, and to Reynolds? credit he does not shy away from criticizing the path followed by Canadian courts in the development of Aboriginal law.

Aboriginal Peoples & the Law will appeal to law students wanting a handy ?Coles Notes? summary of the principles of Aboriginal law. In fact, Reynolds goes so far as to end each chapter with a one-page set of bullet points under the heading ?To Sum Up,? which is in effect a summary of a summary.
Aboriginal Peoples & the Law should also attract serious students in other disciplines, such as anthropology and political science, who might want a well-written overview of a complex subject.

However, there are no colourful anecdotes or intriguing case studies to help the reader through a topic that is admittedly a tough slog.

9780774880213

Neil Vallance earned his Ph.D. from the University of Victoria Faculty of Law. His dissertation was on the Vancouver Island (also known as the ?Douglas?) Treaties of 1850 to 1854. He now writes occasional expert reports for First Nations claiming breaches of their treaty rights.

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BOOKS:

Subtropical Gardening in a Temperate Climate (Vancouver: Hylea Publishing, 1997), ISBN 0-9682951-0-X.

A Breach of Duty: Fiduciary Obligations and Aboriginal Peoples (Saskatoon: Purich Publishing Ltd, 2005), ISBN 1-895830-25-7.

[A. Twigg, B. Cramp / BCBW 2005] "First Nations" "Gardening" "Law"