THE CROWN'S FIDUCIARY RELATIONSHIP
TABLE OF CONTENTS
THE CROWN’S FIDUCIARY RELATIONSHIP
These notes are intended to provide a brief introduction to the complex and evolving “fiduciary” relationship between the Crown and Canada’s Aboriginal peoples.
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
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
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:
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:
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:
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.
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:
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 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:
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.
(1)  2 S.C.R. 507.
(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.,  S.C.R. 211;  2 D.L.R. 225, at 232.
(4)  2 S.C.R. 335.
(5) The Court defined the Aboriginal interest in the land as an independent legal right that pre-existed the Royal Proclamation.
(7) This broad finding has been reiterated in subsequent decisions, including, for example, R. v. Marshall,  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,  3 S.C.R. 139.
(9)  3 S.C.R. 101.
(10)  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),  1 F.C. 38 (T.D.); Gitanyow First Nation v. Canada,  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,  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.
(21) Aboriginal Self-Government: The Government of Canada’s Approach to the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Minister of Indian Affairs and Northern Development, Ottawa, 1995).
(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.