Chapter 8

Bending the law to the needs of settlement

The treaties

As the Crown increased its military presence in British North America, and as the fur trade became less dependent on indigenous trappers, the incomers were less inclined to respect the covenants given in the Royal Proclamation. The RCAP Report tells us that Loyalists moving across the 49th parallel after the American War of Independence brought with them the idea of entering into land treaties with the indigenous peoples.24 Before a treaty was concluded the Crown described the lands as ‘public lands’ but, once the treaty was concluded, the lands were allocated into private ownership by individuals. This was contrary to the indigenous understanding that the treaties were agreements to share the land.

Rotman notes that, as the Crown became less dependent on its former indigenous allies, the subject matter of the treaties changed from peace to land. The solution adopted by the Crown to its increasing need for indigenous land was to send out negotiators to treat with small bands of indigenous people. At the same time, the terms of Indian treaties ceased to be agreements between sovereign nations and instead became one-sided documents under which the Crown dictated terms of surrender of lands.25

The Robinson treaties

The treaty process began in earnest when the Ojibwa and Metis people of Lake Huron and Lake Superior began to protest at the use of natural resources on their land without their consent. In 1849, a war party took possession of a mine near Sault Ste. Marie. The governor general called in William Robinson to negotiate the two treaties which bear his name. A former fur trader, he insisted that the Ojibwa people be permitted to maintain their connection to the land because they supplied high-quality furs. These were resource-development treaties and the land taken was not suitable for settlement. Reserves were set apart for the Ojibwa at a rate of 640 acres per family. Nevertheless, the treaty stated that this land was to be shared with the settlers, which Robinson explained was an advantage since the Ojibwa would be able to sell them their produce!26

The Ojibwa negotiated to receive a share of the revenues from the mines, with annuities and cash payments increasing with the increase in the revenues. However, the increase in payments did not match the increase in the revenues and when the Ojibwa demanded further increases to make up the shortfall, the Crown relied on the wording of the treaty, never shown to the Ojibwa at the time of signing, to the effect that any increases would be limited to what ‘Her Majesty may be graciously pleased to order’. Although Ojibwa hunting and fishing rights were to be totally undisturbed, the written treaty provides that what has taken place is a total surrender – whereas the Ojibwa had understood that the treaty covered only the right to subsurface exploitation.27

Recently, the true intention behind the Robinson Treaties has come under scrutiny in the Ontario Supreme Court of Justice I Restoule v Canada.28 Judge Patricia Hennessey, in interpreting the two Robinson treaties, accepted evidence of Anishinaabe methods of treaty making together with the intentions of each side in order to give a purposive interpretation, which would give the Anishinaabe a considerable sum of unpaid annuities accruing since 1874. The Anishinaabe published their Opening Statement29 online and the respondent governments accepted the evidence of the way in which the treaty was originally negotiated.

The numbered treaties

After Canada’s Confederation in 1867, each of the treaties was given a number. All of the numbered treaties contained a clause by which indigenous people ‘cede, release, surrender and yield up to the Government of the Dominion of Canada … all their rights, titles and privileges whatsoever, to the lands’. Treaty 4 was the first treaty to contain an extinguishment clause whereby all indigenous rights were wiped out unless specified in the treaty.30

The wording of the treaties implies that the Crown received absolute title to the land and was then obliged to grant reserve land to the peoples concerned. Yet the RCAP Report reminds us that negotiations were conducted according to the indigenous oral tradition, which had no words to express these concepts.31 Some indigenous peoples were shrewd negotiators. They were familiar with the results of negotiations south of the 49th parallel, and used this knowledge so that they became expert negotiators themselves. They knew the value of their lands to the Crown. They also recognised the dangers: ‘We see how the Indians are treated far away. The white man comes, looks at their flowers, their trees and their rivers; others soon follow; the lands of the Indians pass from their hands, and they have nowhere a home.’32

The peoples concerned were moved onto reserves so that their title was extinguished, releasing large tracts of land to the Crown for settlement or exploitation. Sprague33 notes that each of the treaties corresponded to an economic interest of the government of the day. The indigenous people were led to believe that treaty provisions were created in perpetuity. On this basis, according to the indigenous point of view, the Royal Proclamation of 1763 should be read in conjunction with every subsequent treaty. By contrast, Canadian law required34 that treaties be ratified by parliament. Further, treaty provisions were superseded by subsequent treaties. Macklem35 maintains that, prior to the introduction of section 35(1) of the Constitution Act 1982, treaties were regarded by the Crown as contracts which permitted the Crown to extinguish existing treaty rights unilaterally but, with the introduction of section 35(1), courts changed their approach to interpretation towards one that was more understanding and accommodating of indigenous treaty expectations. Previously, treaty interpretation had been subject only to the norms of the dominant society. Nevertheless, the Crown was still under the fiduciary duty not to deal in indigenous land without the free, prior and informed consent of the people concerned. This is a duty which arises from the Royal Proclamation. Macklem notes James (Sake) Youngblood Henderson’s words that ‘aboriginal people entered the treaties as keepers of a certain place’,36 so that for them the purpose of a treaty was to regulate the sharing of the land in such a way as to protect the land and their own use of the territory concerned. However, the decisions do not reflect the indigenous primary concern that, above all, the land should be protected. Macklem37 sees the treaty process as an alternative to the doctrine of discovery; as a foundation of Canadian sovereignty over, and title to, the land. This might have been an effective transition had the treaty negotiations been carried out under the fiduciary obligations of the Crown. However, no attempt was made to obtain the fully informed consent of indigenous representatives authorised by the group concerned to enter into negotiations. No mention appears to have been made in the face-to-face negotiations of the extinguishment of their land rights.

In Simon v R 38 Dickson CJ gave four principles of treaty interpretation:

• ‘Indian treaties should be given a fair, large and liberal construction in favour of the Indians’;

• treaties should not be construed ‘according to the technical meaning of their words but in the sense that they would naturally be understood by the Indians’;

• rights to hunt should be ‘interpreted in a flexible way that is sensitive to the evolution of changes to normal hunting practices’; and

• the right to hunt also comprises ‘those activities reasonably incidental to the act of hunting itself’.

Sharon Venne39 points out that the chiefs who negotiated with the Crown’s representatives had no authority to enter into treaties extinguishing their rights in the land. She writes as follows of the role of the chief in Plains Cree governance: chiefs and headmen must win and maintain the respect of their followers, but there were no elections and tenure of the position is under constant review. The people made their wishes known by their actions. Indigenous representatives had been observed down the years before they are chosen and their mandate is to implement decisions made by their people. The chief had no authority to make binding, unilateral decisions. Political and legal authority rests with the people.

Venne40 goes on to describe the treaty-making process for Treaty 6 in 1876 according to Cree oral history. The Crown treaty commissioner said that the Crown wanted a ‘treaty of peace and friendship’ to last ‘as long as the sun shines, the grass grows and the rivers flow’, which would allow the Queen’s Canadian subjects to move out of their present overcrowded conditions onto Indian land. The negotiations were at arm’s length and subject to no external pressure, and concluded with the smoking of a pipe. This represented a solemn undertaking before the Creator. The provision in the treaty for the payment of annuities represented the necessity of the giving of a gift in order to share indigenous land. Yet when it came to the written version of the treaty, the Cree denied that they ever agreed to ‘cede, surrender and forever give up title’ to their lands. Such words did not exist in their language. Under Cree law, the Cree can only ever agree to share their land. The Cree have their own written version of the treaty, in two copies which are written on buffalo hide, never to be erased. These can be produced to show the original agreed version of Treaty 6. Venne also gives reasons why the Cree would never enter into a treaty for ‘so long as the sun shines, the grass grows and the rivers flow’ – in their collective memory, they know that such things are uncertain.

In Paulette v Registrar of Titles (No 2),41 Morrow J noted the ‘ultimatum effect’ of the Crown’s negotiation style, which took an extreme form when the chief appointed to sign Treaty 11 at Fort Simpson refused to sign and the Crown’s representatives appointed another chief without the knowledge of the indigenous people. Under the treaty, each indigenous family was to be given a piece of reserve land which was too small to sustain it. The RCAP Report tells us that the reserves promised under the terms of Treaties 8 and 11 were not built until the 1950s or even the 1970s, and this was one of the factors leading to Morrow J’s decision that the indigenous rights had not been extinguished.42 Pointing to the inferior bargaining position of the indigenous people, Morrow J held that there was doubt as to whether the full indigenous title had been extinguished.

The Crown has argued that any outbreak of hostilities extinguished treaty rights agreed between the warring parties. Yet in Simon, Dickson CJC confirmed the Micmac’s continuing right to hunt despite the fact that hostilities had broken out between the Crown and the Micmac after the treaty was concluded. The hostilities had been initiated by the Crown. He held that the Micmac hunting rights were not ‘frozen rights’ but rights to hunt according to contemporary practices. He upheld Simon’s right to carry a gun outside the provincially prescribed hunting season on the grounds that, by section 88 of the Indian Act, treaty rights took precedence over provincial legislation.

The Royal Commission on Aboriginal Peoples recommended treaty legislation which, inter alia, would affirm the jurisprudence on treaty interpretation and commit the Canadian government to treaty processes which would implement the spirit and intent of the treaty negotiations rather than the plain meaning of the words of the written treaties. If these principles of interpretation are applied, there is an arguable case for returning the lands and the rights to the indigenous people where extinguishment and expropriation were achieved by deception – since the claims would not be statute-barred (out of time).

The Royal Commission on Aboriginal Peoples43 found that the non-aboriginal people took advantage of the indigenous lack of understanding of the legal and political implications of the terms of the treaties. Further, the written terms often failed to reflect the oral agreement reached in negotiation. In particular, the written versions of the numbered post-Confederation treaties differed from the oral agreements. The indigenous peoples found themselves subject to colonial laws of which they knew nothing, despite the assurances given in the negotiations that they would continue to be independent and free to pursue their traditional life. They had little comprehension of the clauses in the written treaties under which their rights were extinguished. In the treaty documents indigenous nations were referred to as subjects of the Crown, something which they never conceded. James (Sake) Youngblood Henderson says that, since no purchase price or other consideration was given for the surrender of the rights, the Crown received a protective rather than a proprietary tenure, under which the indigenous people maintained their sovereignty and a degree of self-determination.44

The RCAP Report sums up the general outcome of the numbered treaty negotiations as follows:

The Crown asked First Nations to share their lands with settlers, and First Nations did so on the condition that they would retain adequate land and resources to ensure the well-being of their nations. The Indian parties understood they would continue to maintain their traditional governments, their laws and their customs and to cooperate as necessary with the Crown. There was substantive agreement that the treaties established an economic partnership from which both parties would benefit. Compensation was offered in exchange for the agreement of First Nations to share. The principle of fair exchange and mutual benefit was an integral part of treaty-making. First Nations were promised compensation in the form of annual payments and annuities, social and economic benefits, and the continued use of their land and resources.45

These are the terms agreed in oral negotiations but, the Report tells us, little time was spent on discussing them in detail and the later, written, versions were silent on these provisions. The Canadians did not have any commitment to the fulfilment of the terms which the indigenous groups considered vital. The RCAP Report also points out that treaties were executive actions of the Crown and were never sanctioned by parliament through legislation. The treaties were never disseminated in government departments.46

The case law

The two cases which first defined the significance of the Royal Proclamation, and thereby the nature of indigenous land rights, concerned disputes over indigenous land between non-indigenous litigants.

Johnson v M’Intosh,47 an American case, concerned the purchase of indigenous lands without the Government’s permission. It was heard by a judge who was a land speculator; both counsels were land speculators, the parties were land speculators, and the defendant, M’Intosh, only agreed to be a party to the case to settle a score with another land speculator.48 It is hardly surprising, therefore, that Marshall CJ upheld the doctrine of discovery as the basis of British title to indigenous land.

Chief Justice Marshall gave his interpretation of the doctrine of discovery as meaning that the nation which first discovered the aboriginal lands could claim title to them as against other European nations. It was contended that the indigenous people were repaid for their lands by being given the advantages of civilisation and Christianity. Nevertheless, the indigenous right to occupy the land by virtue of their possession was recognised under the common law. The Marshall judgment was the basis for the UK Privy Council’s decision in St Catherine’s Milling v R 49 although Chief Justice Marshall, in a subsequent case,50 held that land could only be acquired by cession or by purchase.

St Catherine’s Milling, a Canadian case, was heard in London by the Privy Council. Lord Watson dismissed the indigenous peoples’ right to their own land as ‘a personal and usufructuary right dependent on the will of the sovereign’ – a right in personam rather than in rem and thus defeasible because the right is not attached to the land. The Privy Council held that the indigenous people had a mere licence to use the land until the Crown decided unilaterally to revoke that licence. It was held that the beneficial interest in the disputed indigenous land lay with the province of Ontario. If the indigenous people had no proprietary interest in the land, they lost the protection afforded them by the Royal Proclamation as there was no need for the surrender of the lands to the Crown if the indigenous people had a personal, non-transferable interest. This decision had far-reaching consequences: it effectively gave permission for 150 years of unilateral expropriation of indigenous lands and repression of indigenous language and culture in a failed attempt at assimilation.

As Gerry St Germain, a Metis Canadian senator, observed to the Truth and Reconciliation Commission on Indian Residential Schools: ‘There can be no doubt that the founders of Canada somehow lost their moral compass in their relations with the people who occupied and possessed the land …’51

It was not until 1973 in Calder v Attorney General for British Columbia52 that the Court reconsidered the finding in St Catherine’s Milling that aboriginal title was no more than personal and usufructuary. The court heard evidence gathered from the historical documents of the time, including the proclamations and ordinances of the Governor of the Colony of British Columbia. In the words of Judson J: ‘Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organised in societies and occupying the land as their forefathers had done for centuries.’

The Supreme Court of Canada granted the declaration sought by the Nisga’a Nation that ‘the aboriginal title of the Plaintiffs … has never been lawfully extinguished’. However, there was no clear majority in their favour over the deciding issues in the case.

The court acknowledged that the Nisga’a were never conquered, nor did they enter into any treaty or surrender of their lands. They rejected the assumption which formed the basis of the Marshall judgment, namely that the aboriginal people were savages – a premise which had been accepted by the judge at first instance in Calder.

The judges accepted that indigenous title throughout Canada was subject to the fiduciary duty created by the Royal Proclamation of 1763, described by John Borrows as ‘an Indian Bill of Rights’ – it was deemed to be a law which ‘followed the flag’ as England assumed jurisdiction over newly discovered or acquired lands or territories. They approved dicta in Amodu Tijani v Secretary, Southern Nigeria53 that, once indigenous title is established, it is presumed to continue until the contrary is proven. The court reiterated that the onus of proving that the sovereign intended to extinguish title lay with the Crown and that such an intention must be ‘clear and plain’.

When deciding indigenous rights cases, the main purpose of the judiciary is to reconcile indigenous title with the common law. Asch and Macklem54 distinguish two theories of indigenous rights: a contingent theory under which indigenous sovereignty depends on legislation or executive action for its validity, and an inherent rights theory under which indigenous rights pre-exist and are continuing rights regardless of the attempts of governments to extinguish them. The courts initially took a contingent rights approach, regarding the Proclamation as having granted rights to the indigenous peoples rather than protecting existing rights.55 Asch and Macklem note the change to a definitive inherent rights approach in Guerin v R.

The Canadian courts have never entertained arguments that the Crown does not have sovereignty over aboriginal lands. R v Sparrow 56 was the first decision in which a court was called upon to interpret section 35 of the Constitution Act 1982. Section 35(1) provides: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’

The judge, determined to preserve Canada’s ability to encroach on indigenous land,57 declared: ‘It is worth recalling that while British policy towards the native population was based on respect for the right to occupy their traditional lands, a proposition to which the Royal Proclamation bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown’ (emphasis added).

The court in this case accepted an argument that the true interpretation of section 35 (1) of the Constitution Act 1982 should have written into it a justification clause which enabled governments to requisition land for purposes which were of overriding public benefit. This argument was founded solely on a journal article by Canadian academic lawyer Professor Brian Slattery.58

A reading of the Sparrow reasons for decision shows that the Supreme Court in that case did not apply what were at that time well-recognised rules of interpretation. Instead of applying the plain words of the statute, which simply give constitutional recognition to aboriginal rights which were still in existence at the time the Constitution Act became law, the court said it intended to take a purposive approach. This approach allows the court to look at the passage of the bill through parliament in order to discover the intentions of parliament in passing the bill. The court can examine Hansard, committee papers and travaux préparatoires, and from these interpret the provision in such a way as to give effect to the intention of parliament. However, despite the court’s stated commitment to a purposive approach, it would appear from the reasons for decision that it signally failed to adopt one.59

Instead, the court looked to the article by Brian Slattery entitled Understanding Aboriginal Rights,60 in which he traces the development of the doctrine of aboriginal rights from the Royal Proclamation of 1763 to the Constitution Act 1982. The main thrust of his discussion of section 35 of the Act is to ascertain whether the rights ‘recognized and affirmed’ are those which existed at first contact, or those extant in 1982 as they have developed over the years. He suggests that the correct interpretation is ‘extant’, which implies that it is contemporary rights which are preserved, and he advocates an approach which allows for these rights to continue to develop.

He recognises that there must be a limited power to legislate over indigenous land, but the only such regulation which he considers valid would be of a type which applies to all Canadian land held under the Crown, namely:

• regulations that operate to preserve or advance section 35 rights (as by conserving a natural resource essential to the exercise of such rights);

• regulations that prevent the exercise of section 35 rights from causing serious harm to the general populace or native peoples themselves (such as standard safety restrictions governing the use of fire-arms or hunting); and

• regulations that implement state policies of overriding importance to the general welfare (as in times of war or emergency).

This last category was widened by the Supreme Court in Sparrow in such a way as to give it a meaning that was never Brian Slattery’s intention, in order to fill what the court perceived to be a major and highly inconvenient lacuna in the plain words of the statute.

According to recognised applications of the ‘purposive approach’ in Canadian law, the parliamentary record on the progress of the Constitution Bill would have to be explicit in order for the court legitimately to interpret the provision in the way it chose to.

Furthermore, it would appear that no counter-argument was put forward, nor was there reference in the judgment to the doctrine of statutory interpretation, which would be the usual first approach considered and under which the plain words of the statute, implying no justification provision, would have to be accepted by the court. The court appears to have disregarded the fact that the power of the Crown to requisition land which Professor Slattery refers to is a power subject to national emergency.

In the same article, Slattery points out that:

Canadian law treats the question of when and how the Crown gained sovereignty over Canadian territories in a somewhat artificial and self-serving manner. To state a complex matter simply, the courts apparently feel bound to defer to official territorial claims advanced by the Crown, or the facts supporting them or their validity in international law. This judicial posture of deference is designed to leave the executive with a relatively free hand in matters of foreign policy. So a Canadian court will ordinarily recognize historical claims officially advanced by the Crown to American territories as effective to confer sovereignty for domestic purposes.

Brian Slattery’s conclusion is that section 35 (1) of the Constitution Act represents:

… a conscious political act whereby the people of an independent Canada reaffirm the values implicit in the doctrine [of aboriginal rights]. In 1969, when the government of Canada issued its famous White Paper on Indian policy, it was possible to view aboriginal rights as the embarrassing relics of a half-forgotten colonial past, to be interred as quickly and decently as possible and certainly not to be taken as the basis for modern governmental policies. The remarkable reaction of native communities across the country [to the 1969 White Paper] was a matter of life or death for others. So, when s 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal rights of the aboriginal peoples of Canada it constitutes a significant step toward the acceptance of the native point of view.

It was clearly not his intention to propose a justification interpretation of section 35(1).

It is sometimes claimed that Crown sovereignty over aboriginal lands is non-justiciable. This appears to rest on convention, not solid law, and it is therefore open to advocates and negotiators who represent aboriginal clients in land claims processes to re-open this issue in the light of the developing doctrine of the honour of the Crown (discussed below).

R v Badger 61 was the first case to consider the effect of section 35(1) of the Constitution Act 1982 on the interpretation of treaties. If the principles of interpretation set out in R v Badger are applied, however, there are considerable doubts as to British sovereignty over indigenous land. Summarising principles of interpretation from earlier cases, Cory J recognised that:

1. Treaty 8 represented the exchange of solemn promises between the Crown and the Aboriginal people.

2. Treaties and statutes must be liberally construed and provisions in the treaty must be interpreted so as to maintain the honour of the Crown.

3. Ambiguous provisions must always be interpreted in favour of the indigenous people and limitations on their rights must be narrowly construed.

4. The onus of proving extinguishment of indigenous rights rests with the Crown and there must be strict proof of the fact of extinguishment and evidence of a clear and plain intention to extinguish treaty rights.

5. The court must take into consideration the context in which the treaty was signed.

6. Treaties must be construed in the sense that they would naturally have been understood by the Indians at the time of their signing. Because of the indigenous oral tradition, verbal promises made on behalf of the government would be binding.

Once the test was applied to the facts, however, the appeal of two of the three defendants was dismissed because the land over which they had hunted had a ‘visible incompatible use’ and it was held that indigenous hunting was therefore prohibited under both the oral and written terms of the treaty negotiations. This decision is incompatible with the treaty commissioners’ assurance that ‘they would be as free to hunt and fish after the treaty as they would if they had never entered into it’. As so often in indigenous land rights cases, although the potential right to the land is recognised, the court found other grounds on which to defeat it.

The sui generis fiduciary duty owed by the Crown in Right of Canada to the indigenous people as defined by the Canadian courts

Indigenous rights cases come to court piecemeal to settle issues for individual nations. The court is never asked to adjudicate on the bigger picture. It was held in Quebec (Attorney General) v Canada National Energy Board 62 that the court itself was not under the same fiduciary duty as other emanations of the Crown, because this would prejudice the independence of the court system; a decision which is inconsistent with current human rights principles, for example Article 6 of the (British) Human Rights Act 1998. The line of cases discussed below demonstrates the erosion of the fiduciary duty owed by the Crown.

Following the dissenting judgments in Calder, Dickson J in Guerin v R accepted that the Royal Proclamation of 1763 applied to indigenous lands in British Columbia and acknowledged that aboriginal title amounted to a sui generis beneficial interest, more than a personal right but less than a proprietary right; i.e. a right in the nature of a fiduciary duty owed by the Crown.

Guerin provided the circumstances which enabled the Supreme Court of Canada to define more precisely the nature of the Crown’s fiduciary duty. The Musqueam Band had been committed by the District Superintendent of the Indian Affairs Branch to lease its land to the members of a golf club on disadvantageous terms which were not disclosed to Band members, terms which they had agreed to had been varied without their consent. The misrepresentation became known to them only when the golf club applied for a renewal. At the time that the original lease was granted, developers were interested in purchasing the land. This was concealed from the Band. An official in Ottawa questioned the low rental and advised the District Superintendent to seek expert advice. When seeking this advice, he failed to disclose all the terms of the lease.

Analysing the duty owed by the Crown, Dickson J said:

In my view, the nature of Indian title and the framework of the statutory scheme for disposing of Indian land [for the surrender of Musqueam lands to the Crown before the lease could be granted] places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if such a trust were in effect.

Judge Dickson traced the fiduciary duty back not to the Royal Proclamation of 1763 per se, nor to the indigenous possession of the land, but only to the requirement in the Proclamation that indigenous lands be surrendered to the Crown before they could be sold or leased. This narrow definition was all that was necessary to resolve this particular case. Furthermore, it was easier to declare the existence of a fiduciary duty in a commercial rather than a constitutional case. In Osoyoos Indian Band v Oliver (town of),63 Judge Iacobucci held that the fiduciary duty also applied in cases of expropriation by the Crown. Iacobucci J also rejected the contention that the Crown owed no fiduciary duty in circumstances where that duty conflicted with the Crown’s public law duties, and ruled that the Crown had a duty to reconcile the conflicting interests rather than assume that the public interest automatically prevailed.64

Judge Dickson observed that, by the current Indian Act, the government had given the Crown discretion to decide what were the best interests of the indigenous people. It was the conferring of this discretion which turned the Crown’s duty into a fiduciary duty. The combination of the obligation undertaken in the Proclamation and the discretionary power given by government led to the existence of a fiduciary relationship. Thus the words of the Royal Proclamation alone are sufficient to create the fiduciary duty. Because the indigenous peoples’ interest in the land was an ‘independent, legal interest’, and the Crown’s obligation did not arise by statute, the duty was a personal duty rather than a public law one.

Noting the sui generis nature of the fiduciary relationship, because of the unique features attaching to indigenous title and the historic relationship between the Crown and the indigenous people, Judge Dickson maintained that the duty is narrowed by sections 18(1) and 38(2) of the Indian Act. However, Judge Wilson said that it would be inequitable to allow the Crown to hide behind its own document (section 18(1)). Applying a proprietary estoppel argument,65 Dickson J said that it would be ‘unconscionable’ for the Court to ignore the terms which were stipulated orally by the Musqueam – ‘equity will not countenance unconscionable behaviour in a fiduciary’. Since there had been a fraudulent concealment of the terms of the lease, the Band’s claim could not be statute-barred.

Waters66 contends that the court could have resolved the case by looking to the correct construction of the Indian Act, arguing that it is ‘functionally impossible’ to hold the Crown to the fiduciary duty to avoid conflict of duties. The court can only decide a case at common law on the arguments which are presented by the parties, but the very purpose of imposing such a duty is to control the acquisitive tendencies of those in a dominant position. In order to avoid conflict of duties, the Crown must recognise that the land it controls on behalf of the indigenous people cannot be treated as if it is owned outright by the Crown. The Crown must satisfy the tests which enable a fiduciary to deal in the land of the beneficiary regardless of the potential benefits to the nation as a whole. Waters67 argues that the court in Guerin was wrong to discard the trust concept, which has provided a more satisfactory solution to US dealings with indigenous nations. The court’s reason for doing so was that the Musqueam’s proprietary interest in the land disappeared on surrender of the land to the Crown. Yet at this point the trust attached to the proceeds of that transaction.

If Canada had accepted from the outset the clear assumption of a fiduciary duty in the Royal Proclamation, this might have tempered the conduct of the ‘negotiations’ for the numbered treaties discussed above. However, a trustee owes no duty of consultation to the beneficiaries and has the discretion to decide what is in the best interests of the beneficiaries. A fiduciary owes such a duty. ‘Best interests’ means best financial interests to the exclusion of social and moral interests, and financial interests are rarely the priority of indigenous peoples. Waters68 accepts without question that the Crown’s superior title to land rests on discovery, describing it as ‘an internationally recognised claim’. At the time he was writing, Mabo v Queensland [No2], the Australian aboriginal land rights case, had yet to be decided.

Waters’ paper illustrates the enormity of the leap of faith required of Canadian citizens to equate Crown–indigenous relations with those of any other fiduciary and beneficiary – because the Indian Act confined the Crown’s duty to wardship, which is a personal, not a proprietary, duty. The consequences of acknowledging the import of the Royal Proclamation shake the Canadian founding myth to its core. Yet this is the exercise which the Crown in Right of Canada must undertake, not only to redress past injustices but to build a secure future by honouring its obligations.

‘Sui generis’ in relation to rights simply means that the rights are in their own class – they are unlike any other rights. Rotman69 attempts to analyse the nature of the sui generis title of indigenous peoples in Canada. He maintains that it is rooted in the ‘historical, political, social and legal interaction … since the time of contact’ between the indigenous peoples and the Crown. The sui generis formula has been used to attempt to reconcile indigenous land rights and rights to pursue a traditional lifestyle, as guaranteed in the Royal Proclamation, with the common law doctrines of Canadian land law. It allows the court to recognise the different forms of landholding according to indigenous and non-indigenous tradition, and to depart from Judge Dickson’s clear analysis of the fiduciary duty when there is a conflict of interest between indigenous and non-indigenous interests. In Wewaykum Indian Band v Canada,70 Binnie J held that the foundations of the Crown’s fiduciary duty rested on ‘the degree of economic, social and proprietary control and discretion asserted by the Crown [which] left Aboriginal populations vulnerable to the risks of government misconduct or ineptitude’. Noting that, over the years, governments had assumed increasingly higher degrees of control over the lives of aboriginal peoples, he held that the Crown’s fiduciary duty was needed to facilitate supervision of the exercise of those powers – rather than it being, as many Canadians and indigenous peoples assert, a question of paternalism. He went on to observe that the Crown’s fiduciary duty was not open-ended and that courts should ‘… focus on the particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed discretionary control in relation thereto sufficient to found a fiduciary obligation and in a way which gave rise to a private law [personal] duty’.71

Binnie J confirmed the statutory limitation of 12 years in which to bring an action for breach of fiduciary duty, but this finding must be interpreted in light of the prohibition on legal action by indigenous peoples which was imposed by the Indian Acts 1927–1951. It should also be noted that time begins to run from the date of the discovery of the breach of trust or fiduciary duty. Rotman points out that beneficiaries are under no duty to enquire as to the conduct of the fiduciaries and that, while a finding that the action was statute-barred in Wewaykum was appropriate to the circumstances of the case, this might not be so in other indigenous cases.

In Kruger v R,72 the majority of the Court of Appeal condoned a breach of fiduciary duty when the Department of Transport’s need for a wartime airfield prevailed over the Department of Indian Affairs and Northern Development’s duty to act in the best interests of the indigenous people. Urie J held that the same fiduciary duties arose on expropriation as on surrender. It was held that the Crown had competing duties and the compromise reached in the negotiation for the airfield enabled it to satisfy these duties. The Department of Indian and Northern Affairs had advocated a lease of the land to the Department of Transport, which would have fully satisfied both duties. However, the Department of Transport insisted on expropriation on what the judge described as ‘niggardly terms’. Since there was no element of fraud in this case, the majority applied the statutory limitation so that in any event the claim was time-barred. Such a limitation does not apply to breaches of fiduciary duty. There followed, in R v Sparrow, a timely reminder that ‘the relationship between the government and aboriginals is trust-like rather than adversarial’.

This is confirmed by the Report of the Truth and Reconciliation Commission, which found as follows:

In Canada, it must be recognized that the federal Department of Justice has two important, and potentially conflicting, roles when it comes to Aboriginal peoples:

1. The Department of Justice Canada provides legal opinions to the Department of Aboriginal Affairs and Northern Development Canada (AANDC) in order to guide the department in its policy development, legislative initiatives, and actions. Those opinions, and the actions based on them, invariably affect Aboriginal governments and the lives of Aboriginal people significantly. Often those opinions are about the scope and effect of Aboriginal and Treaty rights, and often they form the basis upon which federal Aboriginal policy is developed and enacted.

2. Justice Canada also acts as the legal advocate for the AANDC and the government in legal disputes between the government and Aboriginal people. In this capacity, it takes instruction from senior officials within the Department of Aboriginal Affairs when the department is implicated in legal actions concerning its responsibilities. It gives advice about the conduct of litigation, the legal position to be advanced, the implementation of legal strategy, and the decision about whether to appeal a particular court ruling.

The necessity both to uphold the honour of the Crown and to dispute a legal challenge to an official’s or department’s action or decision can sometimes give rise to conflicting legal opinions …

Canadian governments and their law departments have a responsibility to discontinue acting as though they were in an adversarial relationship with Aboriginal peoples and to start acting as true fiduciaries.73

The Commission’s Call to Action 51 does not go as far as this, however. It calls for transparency in disclosure of documents and opinions on which the government relies in cases concerning indigenous land. While this is a step in the right direction, it still presupposes an adversarial framework.

The very essence of a fiduciary duty is to ensure that such conflicts do not arise – the duty undertaken by the Crown in the Royal Proclamation and the subsequent treaty was to uphold indigenous title and to secure it against all incursions unless these were made with the free, prior and informed consent of the peoples concerned.

By contrast, Michael J Bryant74 is under the mistaken belief that the court uses fiduciary principles as a tool to redress past injustices, and warns that importing such principles into indigenous law risks bringing both fiduciary law and Indigenous rights law into disrepute. He maintains that ‘fiduciary law is notoriously ambiguous incorporating general notions of loyalty, trust and good faith’. Despite the courts having centuries of experience of interpreting such notions satisfactorily, it would seem that the Canadian courts are not able to do so in indigenous contexts. If the guarantee contained in the Royal Proclamation were given in any other context, a duty of the utmost good faith would be declared by the court and the fiduciary would be called upon to account fully for any profits made as a result of the breach of fiduciary duty. From the earliest days of Keech v Sandford, decided just 40 years before the Royal Proclamation, the duty could not have been made clearer.

It is only when courts attempt to maintain the Crown’s absolute title to indigenous land that the waters are muddied. It was the court in Guerin which defined the relationship as sui generis in order to overcome the seemingly impossible task of declaring the Crown title invalid. Donovan Waters asserts that ‘the difficulty is that the Crown cannot avoid the conflict; it can only lessen the ambiguity of its position.’75 One possible solution is to apply the maxim that ‘When equities are equal, the first in time prevails’. But this is also a step too far for Bryant, who categorises the surrender requirements in the Proclamation as a feature of indigenous title rather than a source of fiduciary obligation. In line with the myth of European settlement, Bryant fails to establish the way in which sovereignty was vested in the Crown and maintains that, at contact, numbers of colonialists and indigenous peoples were equal rather than acknowledging that at that time, the indigenous peoples were numerically superior. Bryant does not understand the concept of vulnerability as laid down in Frame v Smith, failing to recognise that the Crown’s ability to intervene in any land transaction weakens the indigenous peoples’ position over disposal of their land. Bryant recognises that the outcome of a finding of breach of fiduciary duty can be restitution of indigenous lands, but finds it unacceptable that such an outcome would bankrupt the Crown. In the interviews I carried out in Matimekush Lac John, it was made clear that the indigenous peoples are not seeking such an outcome – they want recognition of their rights and a fair resolution of their claims which does not entail the extinguishment of those rights. Indeed, the extinguishment requirement in itself is a breach of fiduciary duty.

In 1850, the first Canadian legislation was passed for the control and management of indigenous lands: ‘An Act for the Protection of the Lands and Property of the Indians in Lower Canada.’76 This vested indigenous lands in a Commissioner on trust for the indigenous peoples who occupied them. The obligation under this trust was transferred to the federal government (the Crown in Right of Canada) on Confederation.77