Mary C. Hurley
Law and Government Division
10 August 2000
Revised 18 December 2002
PDF (241.65 Kb, 11 pages)
Canada’s Aboriginal peoples have always held a unique legal and constitutional position. In the Royal Proclamation of 1763, often referred to as the “Magna Carta of Indian Rights,” the colonial British Crown found it
just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. (emphasis added)
Emphasizing the Crown’s concern with the “great Frauds and Abuses” committed by purchasers of Aboriginal lands, the Royal Proclamation reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and Lands Reserved for the Indians.” Surrenders and designations of reserve land under the Indian Act, the principal vehicle for the exercise of federal jurisdiction over “status Indians” since 1876, reflect the “protective” provisions of the Royal Proclamation. In practice, pre- and post-Confederation federal governments negotiated surrenders of vast Aboriginal territories in major treaties concluded throughout the 19th and early 20th centuries, largely in Ontario and the western provinces excluding British Columbia. Finally, section 35 of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights” of Canada’s Aboriginal peoples, defined as including the “Indian, Inuit and Métis peoples.” In R. v. Van der Peet (1996),(1) the Supreme Court of Canada commented that
the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact … above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. (emphasis in original)
In broad legal terms, a “fiduciary” is “one who holds anything in trust,” or “who holds a position of trust or confidence with respect to someone else.” Hence, a “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to exercise for the benefit” of another. Such relationships include those between trustees and their beneficiaries, solicitors and their clients, and so forth.(2)
The Supreme Court of Canada has adapted these largely private law concepts to the context of Crown-Aboriginal relations. In the 1950s, the Court observed that the Indian Act “embodie[d] the accepted view that these aborigines are … wards of the state, whose care and welfare are a political trust of the highest obligation.”(3) The Court’s landmark 1984 decision Guerin v. R. (1984)(4) portrayed this relationship more fully, and established that it could or did entail legal consequences. Guerin found that:
The scope of the fiduciary concept was extended significantly in R. v. Sparrow (1990),(6) the Court’s first section 35 decision. Sparrow determined that:
Other section 35 Court rulings containing relevant, generally applicable principles include R. v. Adams (1996)(9) in which the Court found that, “[i]n light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights … in the absence of some explicit guidance.” In Delgamuukw v. B.C.,(10) the Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue. In the context of Aboriginal title, the Court expanded in particular upon the Crown’s obligation to consult affected Aboriginal group(s), finding that the consultation “must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.” Delgamuukw also stated that under section 35, “the Crown is under a moral, if not a legal, duty to enter into and conduct … negotiations [with Aboriginal peoples] in good faith.”(11)
In Wewaykum Indian Band v. Canada (2002),(12) a non-section 35 decision, the Court sought to further clarify certain aspects of the Crown-Aboriginal fiduciary relationship and the scope of obligations arising under it, noting the post-Guerin “flood of ‘fiduciary duty’ claims … across a whole spectrum of possible complaints.” The Wewaykum ruling confirmed that:
As Wewaykum suggests, general principles set out in these and other decisions do not finally determine the precise scope of fiduciary obligations that may be owed by the Crown to a given Aboriginal group in a given set of circumstances. Cases in which these matters are pivotal to Aboriginal claims will continue to come before Canadian courts with regularity, where they are to be decided on a case-specific basis within the general guidelines articulated by the Court.
The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP)(14) saw the fiduciary relationship as originating in treaties and other historical links, describing it in conceptual terms that differ from those expressed by the courts:
Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada.(15)
The Report emphasized that, although the provinces and territories are also bound by fiduciary obligation(s), a position that appears consistent with the emerging jurisprudence in the area,(16) Parliament has primary jurisdiction in relation to Aboriginal peoples under subsection 91(24) of the Constitution Act, 1867:
The federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.(17)
The RCAP was critical of past and current governments’ performance of their fiduciary role; many recommendations reflect its view that government needs to fulfil this role more positively through a variety of measures, including broader recognition of the Aboriginal peoples to whom the duty is owed.
The federal government has not issued a comprehensive official policy in this area. Its approach(18) identifies two principal categories of fiduciary obligations for government managers to take into account, based on the Guerin and Sparrow decisions. Guerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land). Sparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights. Federal guidelines also underscore the honour of the Crown as an additional key element to be maintained in relations with Aboriginal peoples. The government document differentiates between the fiduciary relationship and fiduciary obligations, such that some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations. The Wewaykum decision appears to endorse a similar position.
Explicit or implicit governmental acknowledgement of the Crown-Aboriginal fiduciary relationship may be found in, for example:
The foregoing overview suggests that the Crown’s fiduciary relationship with and ensuing obligations toward Aboriginal peoples have implications for the development and conduct of government policy in matters that engage Aboriginal interests. It further indicates that the scope of the obligations, and thus the nature of associated policy implications, will vary with the individual circumstances at issue.
Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of Supreme Court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification.
Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship. Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. Assembly of First Nations’ resolutions attest to unresolved issues regarding many aspects of the current relationship. In April 2000, then National Chief of the Assembly of First Nations Phil Fontaine observed that “DIAND, like the Government of Canada itself, suffers from a schizophrenic personality. It holds and administers fiduciary obligations to our peoples at the same time as it must observe its political obligations to the rest of Canada. … It advocates one moment on our behalf and in the next moment, through the Justice Department, against us.” As the Supreme Court of Canada’s Wewaykum ruling commented, the Crown is not an ordinary fiduciary and may be required to consider multiple interests in some contexts.
Supreme Court of Canada decisions confirm that the fiduciary relationship does have legal and constitutional scope. The concept itself and obligations arising from it are still being developed.