With Friends Like These... Two Perspectives on Fiduciary Relationships

• Author: Andrée Lajoie
• Pages: 57-80

The Canadian Constitution, like most others, contains several texts —

here, British and more recently Canadian — full not only of such

open-ended concepts as peace, order, and good government, free and

democratic society, not to mention Aboriginal rights but of blanks as

well, undetectable to most naked eyes except to those of judges look-

ing for apparently objective reasons for their decisions. In this way,

the Constitution already includes many as yet unwritten rules, most

of which are soon-to-be-written at any opportune time. Further-

more, it comprises other officially unwritten norms, mostly derived

from the British tradition in the form of constitutional conventions,

some of which were frozen into essentialist meanings during their

transatlantic voyage, while others were being shaped by their new

habitat or even born in Canada. The general fiduciary relationship

that Canada entertains with the Aboriginal peoples inhabiting what

57

With Friends

Like These. . .

Two Perspectives on

Fiduciary Relationships

Andrée Lajoie

enseigne le droit au Centre de recherche

en droit public de l’Université de Montréal*

* The author wants to acknowledge her debt to Eric Cardinal, a Ph.D. candidate

at the Faculté de droit de l’Université de Montréal, whose master’s dissertation

is in part summarized — with his authorization — in the description of the

fiduciary relationships in positive Canadian law, and to professors Richard

Janda, McGill University, and Jean Leclerc, Université de Montréal, for their

careful reading and useful suggestions.

Canada calls its territory derives from all these sources, while some

specific fiduciary obligations expressly recognized as deriving from

that relationship are rooted in unilateral actions of the Crown,

domestic legislation, and even domestic treaties — if we allow that

oxymoron.

So the puzzle is not easy to reconstruct. The pieces can only be

made to fit together in a coherent pattern if one remembers that,

even if its surface is intentionally blurred by ideological discourse,

the underlying frame should be read in the “strong sense of aware-

ness of the community interest in protecting the rights of the native

population in those lands,” as Mr. Justice Estey once candidly admit-

ted.1This means within the overbearing context of majority inter-

ests, as always when the values of a group perceived as a minority are

included in the fabric of the law of the dominant majority. It is from

this first perspective that I try to describe the fiduciary relationships

between the Crown and Aboriginal peoples in Canada. But more is

needed to understand this complex institution, an examination not

only of its sources and content but also its effects, intended or not.

This “effectivity” is the second perspective from which my analysis

is conducted.

A. The Fiduciary Relationships:

Sources, Content, and Scope

The plural in the title of this forum is not innocent: there are more

relationships than one in the fiduciary institution, since the general

fiduciary duty, from which general obligations can now be derived for

all components of the state, also serves as the background for more

specific fiduciary engagements entailing more precise obligations.

1. The General Fiduciary Duty

The general fiduciary duty is commonly described as a link existing

between the Crown in the right of Canada and Aboriginal peoples

58 Part one: Perspectives on Fiduciary Relationships

1Guerin v. R., [1984] 2 S.C.R. 335 at 392.