Conceptualizing Crown-Aboriginal Fiduciary Relations
| Author | Leonard Rotman |
| Pages | 25-56 |
Through two of the most significant decisions in modern Canadian
Aboriginal rights jurisprudence — Guerin and Sparrow1— the Supreme
Court of Canada declared that the Crown2owes fiduciary obligations to
the Aboriginal peoples of Canada and entrenched those obligations in
section 35(1) of the Constitution Act, 1982.3Guerin was the first Cana-
dian case to sanction the existence of a fiduciary relationship between
the Crown and Aboriginal peoples, which occurred in the context of
a surrender of reserve lands for lease purposes.4Sparrow later affirmed
25
Sparrow, [1990] 1 S.C.R. 1075, (1990), 70 D.L.R. (4th) 385 (S.C.C.)
2 The emanations of the Canadian Crown — federal and/or provincial — that
owe these duties have still not been adequately addressed by the courts. On this
issue, see L.I. Rotman, Provincial Fiduciary Obligations to First Nations: The
Nexus Between Governmental Power and Responsibility (1994) 32 Osgoode
Hall L.J. 735.
3Constitution Act, 1982, Part I, Canadian Charter of Rights and Freedoms (enacted
by Canada Act, 1982 (U.K.) 1982, c. 11, Sched. B).
4 Although Justice Wilson had found the existence of a trust in Guerin based on
the specific facts of the case, she agreed with Dickson J.’s judgment, which held
that the nature of the relationship between the Crown and Aboriginal peoples
vis-à-vis the alienation of reserve lands was, generally speaking, of a fiduciary
character.
Conceptualizing
Crown–Aboriginal
Fiduciary Relations
Dr. Leonard I. Rotman
Professor, Faculty of Law,
University of Windsor
the existence of this relationship and rooted it in the constitutional
protection of Aboriginal and Treaty rights during the Supreme Court’s
consideration of section 35(1) generally and the scope of the fishing
rights of the Musqueam in particular.
The Guerin and Sparrow cases occupy strategic places within
Canadian Aboriginal rights jurisprudence for many reasons, includ-
ing their roles in defining Crown–Aboriginal relations as fiduciary.
Through these cases, the Supreme Court blazed a new path in Cana-
dian Aboriginal rights jurisprudence, the ramifications of which have
yet to be fully delineated or experienced. More importantly, through
these judgments the Supreme Court initiated a new way of thinking
about Aboriginal peoples’ rights and their relationship with Canadian
legal, political, and social realms.
The Crown’s fiduciary duty to Aboriginal peoples in Canada is
the fundamental element of the special sui generis (unique) relation-
ship between them.5Its place within section 35(1) and resultant
implications for Aboriginal and Treaty rights, as well as for federal
and provincial legislative competence in respect of those rights, has
solidified this premise.6Describing Crown–Aboriginal relations as
fiduciary provides a substantive basis for understanding the legal
implications of the parties’ interaction. Further, this characterization
imposes exacting and enforceable duties on the Crown to act in the
best interests of Aboriginal peoples in a variety of contexts.7The
26 Part one: Perspectives on Fiduciary Relationships
5Guerin, above note 1 at 343. For a discussion of the meaning of the term “sui
generis” in Canadian Aboriginal rights jurisprudence, see J. Borrows and L.I.
Rotman, The sui generis Nature of Aboriginal Rights: Does It Make a Differ-
ence? (1997), 36 Alta. L.Rev. 9.
6 Although exclusive legislative jurisdiction over “Indians and Lands reserved
for the Indians” resides with the federal government under s. 91(24) of the
Constitution Act, 1867 (30–31 Vict. c. 3), the Sparrow decision specifically con-
templates that the Crown’s fiduciary duty has an impact on provincial abilities
to exercise legislative authority vis-à-vis Aboriginal peoples, which includes
the ability to regulate Aboriginal or Treaty rights, such as by referential incor-
poration facilitated by s. 88 of the Indian Act, R.S.C. 1985, c. I-5. As the Court
stated, s. 35(1) “affords aboriginal peoples constitutional protection against
provincial legislative power” (Sparrow, above note 1 at 406).
7 It should be noted, though, that, even where relationships are properly
described as fiduciary, not every component of those relations is itself necessari-
ly fiduciary. See McInerney v. MacDonald (1992), 93 D.L.R. (4th) 415 at 423
(S.C.C.) and New Zealand Netherlands Society ‘Oranje’ Inc. v. Kuys, [1973] 2 All
E.R. 1222 at 1225–26 (P.C.)
process by which this legal characterization has come to pass is the
key to obtaining an accurate representation of the fiduciary character
of modern Crown–Aboriginal relations.
In another context, I attempted to provide greater shape to the
fiduciary nature of Crown–Aboriginal interactions by examining what
this description entails for the parties involved.8This paper constructs
a conceptual framework for Crown–Aboriginal fiduciary relations by
placing them within an appropriately contextual environment. The
first part of this paper looks to the historical origins of these relations,
as filtered through the presumptions of both the Crown’s representa-
tives and Aboriginal peoples. Both Guerin and Sparrow sanctioned the
fiduciary characterization of Crown–Aboriginal relations because of
the historic relations between the parties. I trace Crown–Aboriginal
relations from early contact until shortly after the Royal Proclamation
of 1763. This contextually appropriate analysis of Crown–Aboriginal
fiduciary relations is set out as a doctrinally sound framework for the
application of fiduciary doctrine to those relations.
Many judicial and scholarly considerations of Crown–Aboriginal
fiduciary relations have cultivated the belief that they are fiduciary
because of an inherent inequality in power between the parties.
These assertions contain two separate grave errors. First, they ignore
the fact that the fiduciary nature of Crown–Aboriginal interaction
stems from the parties’ historic relations, which did not always exist
in the same form. As will be shown in this paper, Crown–Aboriginal
relations experienced many incarnations, some of which placed the
Aboriginal peoples in the ascendant position with the Crown occu-
pying the corresponding position of vulnerability and dependency.
Second, these mis-characterizations are premised on the notion that
fiduciary relationships can only exist between inherently unequal
parties. Later in this paper, I demonstrate that this is perhaps the sin-
gle greatest myth impeding doctrinally accurate understandings of
fiduciary interaction.
Looking to the historical and doctrinal bases on which modern
Crown–Aboriginal fiduciary relations are founded, it is possible to
understand the legal rationale for the judicial imposition of fiduciary
Conceptualizing Crown–Aboriginal Fiduciary Relations 27
8 L.I. Rotman, Parallel Paths: Fiduciary Doctrine and the Crown–Native Relation-
ship in Canada (Toronto: University of Toronto Press, 1996).
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