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THE CROWN'S FIDUCIARY RELATIONSHIP
WITH ABORIGINAL PEOPLES
Prepared by:
Mary C. Hurley
Law and Government Division
10 August 2000
Revised 18 December 2002
TABLE OF CONTENTS
BACKGROUND
JUDICIAL INTERPRETATION
EXTRA-JUDICIAL CONSIDERATIONS
COMMENTARY
THE CROWN’S FIDUCIARY RELATIONSHIP
WITH ABORIGINAL PEOPLES
These notes are intended to provide a brief introduction
to the complex and evolving “fiduciary” relationship between the Crown and
Canada’s Aboriginal peoples.
BACKGROUND
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)
JUDICIAL INTERPRETATION
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:
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the fiduciary relationship is rooted in the concept
of Aboriginal title, (5) coupled
with the requirement, outlined above, that the Aboriginal interest in
land may be alienated only via surrender to the Crown;
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this requirement, which places the Crown between
the Aboriginal group and third parties to prevent exploitation, gives
the Crown discretion to decide the Aboriginal interest, and transforms
its obligation into a fiduciary one so as to regulate Crown conduct
when dealing with the land for the Aboriginal group;
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in the unique Crown-Aboriginal relationship, the
fiduciary obligation owed by the Crown is sui generis, or one
of a kind.
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:
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the “general guiding principle” for section 35 is
that “the Government has the responsibility to act in a fiduciary capacity
with respect to aboriginal peoples. The relationship between the Government
and aboriginals is trust-like, rather than adversarial, and contemporary
recognition and affirmation of aboriginal rights must be defined in
light of this historic relationship”;
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“the honour of the Crown is at stake in dealings
with aboriginal peoples. (7) The
special trust relationship and the responsibility of the government
vis-à-vis aboriginals must be the first consideration in determining
whether the [infringing] legislation or action in question can be justified”;
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“[t]he justificatory standard to be met may place
a heavy burden on the Crown,” while inquiries such as whether the infringement
has been minimal, whether fair compensation has been available, and
whether the affected Aboriginal group has been consulted may also be
included in the justification test. (8)
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:
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the fiduciary duty “does not exist at large.” Because
not all obligations between the parties to a fiduciary relationship
are necessarily of a fiduciary nature, the focus should be on “the particular
obligation or interest [in] dispute and whether or not the Crown had
assumed discretionary control … sufficient to ground a fiduciary obligation”;
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rather than providing a “general indemnity,” the
content of the Crown’s fiduciary duty “varies with the nature and importance
of the interest sought to be protected”; (13)
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the Crown is not an ordinary fiduciary and is obliged,
depending on the context, to have regard to the interests of many parties,
not just the Aboriginal interest.
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.
EXTRA-JUDICIAL CONSIDERATIONS
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 enclose
a similar position.
Explicit or implicit governmental acknowledgement of the
Crown-Aboriginal fiduciary relationship may be found in, for example:
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Gathering Strength: Canada’s Aboriginal Action
Plan, (19) the federal government’s
January 1998 response to the RCAP Report. While not appearing to
state the fiduciary relationship directly, the document emphasizes objectives
relating to renewed relationships, partnerships, and shared responsibilities;
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section 5.8 of the 1994 Manitoba Framework Agreement
Initiative, (20) under which “[t]he
Crown’s fiduciary relationship will continue in accordance with judicial
decisions, aboriginal rights, constitutional provisions including Section
35 of the Constitution Act, 1982, the Treaties and other laws and sources
of law, or any of them”;
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the federal government’s 1995 policy guide on Aboriginal
Self-Government, (21) which states
that self-government may “change the nature” of the Crown’s “unique,
historic, fiduciary relationship” with Canada’s Aboriginal peoples,
in that, as Aboriginal institutions assume greater governance responsibilities,
Crown responsibilities will lessen accordingly;
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the statement of the Minister of Indian Affairs in
the context of 2001 discussions on First Nations Governance, asserting
that the initiative would not “eliminate the fiduciary relationship
that exists between the Crown and First Nations”; (22)
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the 2002 Provincial Policy for Consultation with
First Nations issued by the Government of British Columbia in light
of Supreme Court of Canada decisions which recognize the relevance of
the fiduciary relationship in the context of potential infringement
of Aboriginal rights or title. (23)
COMMENTARY
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.
(2) See A Dictionary
of Law, ed. Elizabeth Martin (Oxford University Press, Oxford, 1997);
Jowitt’s Dictionary of English Law, Second Edition, ed. John Burke
(Sweet and Maxwell Ltd., London, 1977).
(3) St. Ann’s
Island Shooting & Fishing Club Ltd. v. R., [1950] S.C.R.
211; [1952] 2 D.L.R. 225, at 232.
(5) The Court defined
the Aboriginal interest in the land as an independent legal right that
pre-existed the Royal Proclamation.
(6) [1990] 1 S.C.R.
1075. Sparrow and subsequent Supreme Court of Canada decisions
cited may be accessed via the Court’s
web site.
(7) This broad finding
has been reiterated in subsequent decisions, including, for example, R.
v. Marshall, [1999] 3 S.C.R. 456.
(8) The same analysis
has been applied in the Court’s section 35 treaty rights cases. See,
for example, R. v. Côté, [1996] 3 S.C.R. 139.
(10) [1997] 3
S.C.R. 1010. The decision contained the Court’s first definitive statement
on the meaning and scope of Aboriginal title in Canada.
(11) The scope
of the Crown’s fiduciary obligations to consult and to negotiate in good
faith features prominently in a number of cases: see, for example, Makivik
Corp. v. Canada (Minister of Canadian Heritage), [1999] 1 F.C.
38 (T.D.); Gitanyow First Nation v. Canada, [1999] 3 C.N.L.R.
89 (B.C.S.C.), under appeal by Canada and British Columbia; Halfway
River First Nation v. British Columbia (Minister of Forests)
(1999), 64 B.C.L.R. (3d) 206 (B.C.C.A.); Taku River Tlingit First Nation
Ringstad et al., 2002 BCCA 59, 31 January 2002 (B.C.C.A.); Haida
Nation v. B.C. and Weyerhaeuser, 2002 BCCA 147, 27 February
2002 (B.C.C.A.).
(12) 2002 SCC
79, 6 December 2002.
(13) This may
involve different stages of the same process. In Wewaykum, the
Court noted that any fiduciary duty existing prior to the establishment
of a reserve expands following its creation to reflect the affected First
Nation community’s acquisition of a legal, quasi-proprietary, interest
in the land.
(14) Minister
of Supply and Services, Ottawa, 1996.
(15) Report
of the Royal Commission on Aboriginal Peoples, note 14, vol. 2, Restructuring
the Relationship, Part One, p. 244.
(16) See, for
example, Supreme Court of Canada section 35 treaty rights cases involving
provincial statutory instruments: R. v. Badger, [1996]
1 S.C.R. 771, R. v. Côté, note 8. In addition, it is implicit,
in the Delgamuukw decision, note 10, that measures infringing Aboriginal
title might be effected by the Province of B.C. for valid legislative
objectives. See also Gitanyow First Nation v. Canada, note 11,
in which the B.C. Supreme Court characterized the federal and provincial
Crown as indivisible.
(17) Report
of the Royal Commission on Aboriginal Peoples, note 14, vol. 5, Renewal:
A Twenty-Year Commitment, p. 7.
(18) As set out
in an Interdepartmental Working Group Report dated October 1995 and entitled
“Fiduciary Relationship of the Crown with Aboriginal Peoples: Implementation
and Management Issues, A Guide for Managers.”
(19) Minister
of Indian Affairs and Northern Development, Ottawa, 1997.
(20) This Agreement
between the Assembly of Manitoba Chiefs and Canada sets out a process
to dismantle DIAND operations in Manitoba, develop Manitoba First Nations
government institutions, and restore to Manitoba First Nations governments
the jurisdictions currently held by federal government departments. Material
on the FAI may be accessed via the web site of the Assembly
of Manitoba Chiefs.
(22) Bill C-7,
the First Nations Governance Act, was introduced in the House of Commons
on 9 October 2002 and referred to the House of Commons Standing Committee
on Aboriginal Affairs, Northern Development and Natural Resources following
first reading.
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