Commentary

• Author: James Sákéj Youngblood Henderson/Gurston Dacks
• Pages: 81-119

the Indians’ interest in land is an independent legal interest. It is not

a creation of either the legislative or executive branches of govern-

ment. The Crown’s obligation to the Indians with respect to that

interest is therefore not a public law duty. While it is not a private law

duty in the strict sense either, it is nonetheless in the nature of a pri-

vate law duty. Therefore, in this sui generis relationship, it is not

improper to regard the Crown as a fiduciary. . . . the fiduciary obliga-

tion which is owed to the Indians by the Crown is sui generis.1

Fiduciary Obligations and the

Honour of the Crown to

Aboriginal Peoples

Since constitutional reforms in 1982, the Supreme Court of Canada has

slowly understood that standard Canadian legal analysis with its famil-

iar doctrinal categories and distinctions is not appropriate for under-

standing the constitutional rights of Aboriginal peoples of Canada or

81

Commentary

James Sákéj Youngblood Henderson

Research Director,

Native Law Centre of Canada

1 Dickson J. (as he then was) stated in Guerin v. R., [1984] 2 S.C.R. 335 at para.

176.

the relationship among these rights to governmental power. In a pru-

dent manner, the Court has refused to mediate constitutional rights of

Aboriginal peoples through the context and filters of colonized juridi-

cal precedents, legal positivism, parliamentary supremacy, political

trusts, and regulatory privilege. Instead, it has articulated a sui generis

constitutional framework and analysis that attempt to eliminate on a

case-by-case process the past wrongs of colonization and the failure of

the rule of law to Aboriginal peoples. Integral to this judicial process

is recognition of the principles of the sui generis fiduciary duty of the

Crown and the honour of the Crown in constitutional analysis to pro-

tect the constitutional rights from legislative or regulatory abuse.

Most lower courts and representatives of the Crown and the legal

profession in Canada have not understood the broad constitutional

transformation required by the highest court. The legal profession is

hampered by colonial mythologies and fictions embedded in their

legal education. They either are not aware of or deny the sui generis

framework protecting Aboriginal and Treaty rights for a veiled Euro-

centric supremacy based on the colonial theory of two founding

Nations (France and England) and provincial federalism. Most of the

legal profession has wrongly attempted to force this innovative sui

generis constitutional framework into the familiar colonial categories

of Canadian law and politics. Reliance on the familiar over the

extraordinary is creating new violations of constitutional supremacy

and the rule of law toward Aboriginal peoples.

I begin my analysis by unravelling the architecture of the judicial

affirmation of the sui generis framework embedded in sections 35 and

53 of the Constitution Act, 1982. Second, I explain why and how the

sui generis fiduciary obligation is substantially different from the com-

mon law fiduciary obligations, and why it is wrong for the legal pro-

fession to impose the common law analysis over this sui generis

analysis. I then explain how to remedy the legacy of legal false prem-

ises and fictions that inform the common law analysis and legislative

framework and that prevent the Crown from implementing its consti-

tutionally required sui generis fiduciary obligations to Aboriginal peo-

ples. And, in conclusion, I return to the purposes of the sui generis

fiduciary obligations of the Crown toward Aboriginal peoples as the

keystone of constitutional supremacy and the Supreme Court’s theo-

ry of constitutional convergence.

82 Part one: Perspectives on Fiduciary Relationships

judicial Affirmation of the

Sui Generis

Aboriginal Framework

The Supreme Court has acknowledged and affirmed that constitu-

tional orders of Aboriginal peoples pre-existed imperial power and

the subsequent delegation of political power to the immigrants:

[W]hat s. 35(1) does is provide the constitutional framework through

which the fact that Aboriginals [sic] lived on the land in distinctive soci-

eties, with their own practices, traditions and cultures, is acknowledged

and reconciled with the sovereignty of the Crown. The substantive rights

which fall within the provision must be defined in light of this purpose.2

These sui generis Aboriginal orders are the ancient law of the land,

and they are embedded in Aboriginal heritages, languages, and laws.

They are embedded in treaties with the British sovereign. These sui

generis Aboriginal orders exist in the Constitution of Canada in the

same way that Eurocentric legal traditions do.3In 1983, Professor

Robert Cover described it this way:

A legal tradition . . . includes not only a corpus juris, but also a lan-

guage and a mythos — narratives in which the corpus juris is located

by those whose wills act upon it. These myths establish the para-

digms for behavior. They build relations between the normative and

the material universe, between the constraints of reality and the

demands of an ethic. These myths establish a repertoire of moves —

a lexicon of normative action — that may be combined into meaning-

ful patterns culled from meaningful patterns of the past.4

Commentary 83

2R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 31, per Lamer C.J.

3 The interpretative framework of the courts is different in construction, but sim-

ilar in legal operation to the “images” W.E. Conklin describes in Images of a

Constitution (Toronto: University of Toronto Press, 1989). The dissent by

McLachlin J., as she was then, in Van der Peet describes the majority constitu-

tional framework as “reasoning from first principles” rather than following

imperial British common law and its historical and judicial methodology to the

sui generis orders, above note 2 at para. 262.

4 R.M. Cover, Nomos and Narrative (1983) 97 Harv. L.Rev. 4 at 9. See also A.T.

Kronman, Precedent and Tradition (1990) 99(4) Yale L.J. 1029: “we must

respect the past because the world of culture that we inherit from it makes use

of who we are. The past is not something that we, as already constituted human

beings, choose for one reason or another to respect, it is such respect that

establishes our humanity in the first place” (at 1066).