Probing the Parameters of Canada's Crown-Aboriginal Fiduciary Relationship

• Author: Mark L. Stevenson and Albert Peeling
• Pages: 7-24

We don’t particularly like the language associated with the concepts

used to address legal problems in the field of Canadian Aboriginal

law. The language, while perhaps precise in a legal context, does not

accurately fit the Crown–Aboriginal relationship. For example, the

language associated with the fiduciary relationship speaks of power

and discretion on the one hand and vulnerability on the other.

These words, typically used to describe the Crown–Aboriginal rela-

tionship, do not speak to a relationship of equality but of one party

under the protection and the discretion of another. The language for

concepts used in international law is similarly troubling. Both the

“process of settlement” and the “doctrine of discovery” are concepts

that perpetuate a Eurocentric mentality. These are the words of col-

onizers, and they do not accurately reflect a Nation-to-Nation rela-

tionship. At the same time, the law provides us with powerful tools,

of which the fiduciary duty is one. This paper briefly explores the

parameters of the Crown–Aboriginal relationship in Canada, in

light of the general fiduciary duty that arises as a result of the

Crown’s assertion of sovereignty.

7

Probing the

Parameters of Canada’s

Crown–Aboriginal

Fiduciary Relationship

Mark L. Stevenson and Albert Peeling

MARK L. STEVENSON AND ASSOCIATES, VICTORIA, BC

Fiduciary Categories

It was once said that “the fiduciary was perhaps one of the most ill-

defined and misleading terms in English Law.”1While the fiduciary

relationship lacks definition, there are established categories in which

a fiduciary obligation is said to exist. A trustee owes a fiduciary obli-

gation to his cestui qui trust, an executor to the beneficiary of an

estate, a solicitor to his client, an agent to his principal, a director to

shareholders, and so forth.2In some cases the relationship, such as

that between a parent and a child, may be intimate. The fiduciary rela-

tionship can also extend to less intimate relationships such as exists

between oneself and a person to whom one gives moneys to have cer-

tain purchased items delivered.3Once a fiduciary relationship is

8Part one: Perspectives on Fiduciary Relationships

1 Meagher, Gummow, and Lehane, Equity Doctrine and Remedies, 2d ed. (Toronto:

Butterworths, 1984) at para. 501. But note that the authors go on to state:

But, since that edition was written, two texts on this area of law — P.D.

Finn, Fiduciary Obligations (Sydney: Law Book Co., 1977) and J.C. Shep-

herd, The Law of Fiduciaries (Toronto: Carswell, 1981) — have demon-

strated that it can be seen, upon analysis, as a reasonably coherent body

of principle. The term “fiduciary” is used to describe several categories of

obligations. For example, certain office holders are entrusted with the

powers which are described as fiduciary powers, in the sense that any

such power is to be exercised by its donee exclusively in what he bona

fide considers to be the best interests of his “beneficiaries”: this obliga-

tion (as to which see Finn, op cit, Part I) applies, for example, to trustees,

the holders of certain powers of appointment, and company directors. It

is not dealt with further in this chapter. Similarly, perhaps more esoteri-

cally (and also questionably — see (1982) CLF 216 (John Griffiths) and

(1982) 98 LQR 117 (Baker) — there is English authority for the propo-

sition that local authorities have fiduciary obligations of that character to

ratepayers: Bromley London Borough Council v. Greater London Council

[1982] 2 WLR 62. Perhaps also, the equitable doctrine relating to undue

influence (see Chapter 15 infra and Finn, op cit, Chapter 16) and confi-

dential information (see Chapter 41 infra and Finn op cit Chapter 19)

should be included under the general “fiduciary” rubric, though specific

bodies of doctrine have been developed in relation to each. Finally, there

is the broad group of principles with which this chapter deals, which pro-

hibits persons categorized for these purposes as fiduciaries from making

unauthorized profits from their positions or allowing their personal

interests to come into actual, or possibly potential conflict with their

duty — as to which see Finn, op cit, Part II.

2 Ibid at para. 502.

3 Ibid at para. 503.