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Canadian Government Fails to Abide by Treaty Obligations

Regarding Aboriginal Education

 

© 2007 Brad Kempo B.A. LL.B.

Barrister & Solicitor

 

Research on the terms and conditions of treaties entered into between the federal government and first peoples in the 19th century reveals a blatant violation of the provisions relating to education.  Had they been adhered to, the living conditions of the country’s now second largest minority would not be Third World.

 

 

Treaty law shares many rules, principles and public policies with contract law.  One widely known rule is that the terms and conditions of the agreement are to be observed and breaches provide the offended party with remedies, including damages.  A second has roots in that area of the law is known as the ‘fiduciary relationship’.  And a third derives from constitutional law.

 

A review of the treaties entered into between the Canadian government and aboriginal groups in the 19th century makes it unequivocally evident all native leaders got a contractual assurance education would be funded in perpetuity.  Now over a century later the proof is in that the ruling elite failed miserably and which led to a lifestyle involving rampant poverty, economic marginalization, high incidents of alcohol and substance addiction, violence, suicide, dilapidated living conditions and lower life expectancy. 

 

The following are excerpts from the treaties that deal specifically with the obligations to provide education:

 

 

 

 

                        Treaty No. 8

Treaty No. 11, June 27, 1921

 

Practically all the bands dealt with wanted more provision for medical attendance at each post, schools for their children, and supplies for their old and destitute.

 

Schools were already established, and their children receiving free education...

 

Treaty No. 10

 

As to education, the Indians were assured that there was no need for special stipulation over and above the general provision in the treaty, as it was the policy of the government to provide in every part of the country as far as circumstances would permit, for the education of the Indian children, and that the law provided for  

 

schools for Indians maintained and assisted by the government being conducted as to religious auspices in accordance with the wishes of the Indians.

 

[...]

 

Further His Majesty agrees to make such provision as may from time to time be deemed advisable for the education of the Indian children.

 

Treaty No. 9, November 6, 1905

 

John Dick remarked that one great advantage the Indians hoped to derive from the treaty was the establishment of schools wherein their children might receive an education.

 

Treaty 8, June 21, 1899

 

Further, Her Majesty agrees to pay the salaries of such teachers to instruct the children of said Indians as to Her Majesty's Government of Canada may seem advisable.

 

Treaty 7, Sept 22, 1877

 

Further, Her Majesty agrees to pay the salary of such teachers to instruct the children of said Indians as to Her Government of Canada may seem advisable, when said Indians are settled on their Reserves and shall desire teachers.

 

Treaty 1, August 3, 1871

 

And further, Her Majesty agrees to maintain a school on each reserve hereby made whenever the Indians of the reserve should desire it.

 

 

As the foregoing clearly demonstrates, there was a clear desire on the part of the negotiating parties that education be funded by the federal government. 

 

Fast-forward over a hundred years and the evidence is overwhelming that the obligation was not honored. 

 

Canada’s wealthy perceived the aboriginal community as a competitive threat and used their de facto control of the federal and provincial governments to inhibit their rise to become equal partners in Canada.  One way was to not adequately fund education.  In Ontario’s Hansard is proof that the progress that was being observed was halted by the Mulroney government by restricting money for post-secondary education.

 

Ontario Hansard

 

November 2, 1989

 

Native Post-Secondary Education

 

Mr. Hampton (Kenora-Rainy River, NDP):

 

It is only in the last 20 years that first nations people have had the encouragement, both socially and financially, to enter post-secondary institutions.

 

[…]

 

It is only in the last 15 years that we have seen a number of graduates, graduates in law, in business, in social services, in education. Indeed, it is only probably within the last 10 to 15 years that we have seen parole officers of native ancestry, police officers, nurses, lawyers, public administrators, financial managers, all of the things that are necessary to enable first nations people to assume the proper control over their own lives and over their own social and economic development. That kind of development, educational development, social development, economic development, was provided for and encouraged by the kinds of financial incentives that were there for first nations young people.

 

What the policies that were enunciated in the spring of 1989 do, however, is to severely limit the funding that is available and at the same time, they limit the circumstances in which it is available.

 

[…]

 

I do not think I need to repeat in this House that if you do an economic profile of Ontario society and Canadian society, you will find that native people are among the poorest, if not the poorest.

   

Mr. Miclash (Kenora, Lib.):

 

First of all, I do believe, as the member has stated, that the federal government in some way is maybe sloughing off a little bit of its responsibility, and that is to allow for an adequate education for native people, an adequate education that will allow them to compete on an equal footing with their non-native counterparts throughout the country. […] I cannot tell members how important it is to those native people that they get the proper funding to continue on with what they want to do in life.

 

Mr. Pouliot (Lake Nipigon, NDP):

 

If ever there was a human rights problem in Canada, it is with the native peoples. This is what the Canadian human rights commissioner had to say following the most recent decision of Pierre Cadieux, the Minister of Indian Affairs and Northern Development, to limit the federal subsidies for native post-secondary education. He calls it an example of the litany of misunderstanding. That is what he refers to the decision as.

 

The Canadian government has chosen to deny, to cap, to put a ceiling on, to limit spending on native education, more specifically on post-secondary native education, while being fully cognizant, very much aware, that the traditional economies can no longer fulfil the daily needs of the first nations.

 

Mr. Kozyra (Port Arthur, Lib.):

 

These cutbacks by the federal government to the post-secondary program only make that matter worse.

 

There is a critical need for more education. Less education or a slowdown contributes tremendously to problems like illiteracy, unemployment, welfare, hopelessness and destruction.

 

Treaty law was indisputably on the side of the First Nations:

   

November 2, 1989

 

Mr. Wildman (Algoma, NDP):

 

I think it is important to recognize that the first nations signed treaties with the white government, the crown, and that under those treaties a number of things were guaranteed. One thing that was guaranteed was education sufficient to allow the members of the first nations to prosper and to compete.

 

[emphasis added]

 

 

Fifteen years later there is no shortage of admissions about the abdication from Parliamentarians. 

 

 

 

 

Parliament Hansard

 

May 4, 2006

 

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): 

 

The current government has not addressed the needs of Canada's aboriginal peoples. The government has neglected to address the serious challenges for the people of Nunavut, to develop educational programs and promote language skills geared specifically for Nunavummiut.

 

May 5, 2006

 

Ms. Jean Crowder (Nanaimo—Cowichan, NDP): 

 

In terms of a public health framework for first nations communities, the First Nations Health Bulletin, Winter-Spring 2006 talked about work that the Assembly of First Nations is doing in the context of many communities across Canada. It is raising a number of issues including some of what we call the social determinants of health. We must not just talk about health promotion. We must talk about the social determinants of health. The bulletin refers to high rates of unemployment, lower educational opportunities

 

[…]

 

Mr. Todd Russell (Labrador, Lib.):

 

The Liberal government budgeted over $5 billion to meet our commitments to first nations, off reserve, Métis and Inuit peoples. The money would have gone toward health, housing, safe water, education and other important initiatives to bring aboriginal living standards up. It was historic and our people were looking forward to the benefits. Instead, this budget offers a pittance for the Innu and Inuit and absolutely zilch for the Métis who face the same challenges in respect of housing, drinking water and other issues that the Kelowna accord was going to tackle.

 

[…]

 

Mr. Blair Wilson (West Vancouver—Sunshine Coast—Sea to Sky Country, Lib.): 

 

Chief Gibby Jacobs of the Squamish first nation, one of my constituents, has also expressed great concern over this budget. The budget has failed dramatically on education and innovation.

 

[…]

 

May 18, 2006

 

Mr. Lloyd St. Amand (Brant, Lib.):

 

The Kelowna accord, signed not quite six months ago, was hailed by everyone who knew the details of it as a watershed moment in the lives of our aboriginals. It would have significantly assisted them with respect to health, housing and education. Those are three areas in which our aboriginal peoples have not kept pace.

 

June 8, 2006

 

Ms. Jean Crowder (Nanaimo—Cowichan, NDP): 

 

Mr. Speaker, I will be sharing my time with the member for Victoria.

 

I am pleased to speak to the motion today. I will focus on one line in the motion under (3), which reads:

 

targeted initiatives to strengthen skills, job-readiness and successful workplace participation among First Nations, Metis, Inuit and other Aboriginal peoples - as envisioned as part of the Kelowna Accords....

 

One might wonder why it is that we are here today debating the motion when there had been an opportunity over the past 13 years to address some of the very serious issues that are facing aboriginal communities around education.

 

In a 2004 report from the Auditor General, she clearly outlined some very serious concerns around funding and the exact deliverables that were happening through INAC programs, Indian and Northern Affairs Canada programs. Some of it does come down to funding. I would argue that we have seen decades of either indifference or outright neglect when it comes to ensuring aboriginal communities, first nations, Métis and Inuit peoples, have access to adequate funding and resources that ensure they have availability of education that will allow them to move out of some dire circumstances.

 

[…]

 

Later on in the article, Mr. Morales talks about the many factors that impact on first nations, both on and off reserve, and on the Inuit and Métis' ability to move forward in this country. Some treaties have been negotiated but when it comes to Hul'qumi'num peoples they need the economic self-sufficiency. They need access to resources, to education and to adequate housing to ensure they can rightfully take their place in this country and not be living in the kinds of conditions for which we would be embarrassed and which have been embarrassing internationally.

 

[…]

 

Mr. Todd Russell (Labrador, Lib.):

 

The government has put into jeopardy the real progress that Canada and Canadian first nations, Métis and Inuit people were starting to make in terms of educational attainment, skills and employment. I worry about the repercussions of these cuts not only for today, but for the many years and maybe for generations to come.

 

Strong social programs, including education and training and a commitment to aboriginal peoples, provide the basis for long term, strong economic growth. Few places is this more true than in Labrador. However, the Conservatives have stuck to their fend for one's self ideology. It shows up time and time again in their budget and in their program cuts. They are turning their backs on people and regions, which can use constructive programs. We are looking for a hand up, but the Conservatives only see such programs as a hand out. It is disgraceful.

 

June 12, 2006

 

Mr. Gary Merasty (Desnethé—Missinippi—Churchill River, Lib.): 

 

In spite of noticeable improvements to education levels, there is still a noticeable education gap between aboriginal people and non-aboriginal people. The gaps in education and employment opportunities are reflected in the aboriginal people who are in these correctional institutions. Three-quarters of incarcerated aboriginal adults have not completed their secondary school education. Also, aboriginal Canadians were less likely to be employed at the time of incarceration.

 

February 7, 2007

 

Mr. Harold Albrecht (Kitchener—Conestoga, CPC):

 

More specifically, aboriginal women are more likely than non-aboriginal women to be impoverished, uneducated, have higher unemployment, be homeless, have higher rates of incarceration, be substantially more likely to head single parent families and more frequently to be victims of physical and sexual abuse.

 

Bill C-44 is an important first step toward addressing these issues. It would not change the situation overnight but we owe a duty to aboriginal people to start moving forward. The legislation is quite valuable as part of a larger strategy to support first nations communities in assuming greater control of and greater responsibility for their affairs.

 

 

British Columbia legislators also provide the evidence necessary to prove the obligations were not met on the provincial level and admit to such.

 

 

 

British Columbia Hansard

 

February 10, 1970

 

Mr. Frank Calder:

 

Now, Mr. Speaker, let us now read some of the statements of the Government on the New Indian Policy, and this actually appeared in the booklet which they passed out by the thousands, from coast to coast. Here are some of the excerpts, and these are quotations from the White Paper. "Because of history, " pardon me, I think I'd better just say this. I have made certain remarks on the floor of the House, perhaps maybe unthinkable and people just didn't realize why I made these statements, and they were quite bold, and here are some of the bold statements which the Government in Ottawa has made. "Because of history, the Indians today are the subject of legal discrimination." This is the word of the Government. "They have grievances because of past understandings that have been broken or misunderstood; they do not have full control of their lands; and a higher proportion of the Indians than other Canadians suffer poverty, in all its debilitating forms." Another quote. "This system - special legislation, a special land system and separate administration for the Indian people - continues to be the basis of the present Indian policy, has carried with it serious human and physical as well as administrative disabilities."

 

These are the words of the Government.

 

Another quote. "Reserves were usually excluded from development and many began to stand out as islands of poverty." You wouldn't dare say this to the Government several years ago, but these are their own quotations, the Government's own quotations. Another. "The policy of separation has become a burden, " says the Government in Ottawa. Another quote. "The legal and administrative discrimination in the treatment of Indian people has not given them an equal chance of success." Another. "The economic base for many Indians is their reserve land, but the development of the reserves has lagged." Drastic statements. Another. "The tradition of Federal responsibility for Indian matters inhibited the development of a proper relationship between the provinces and the Indian people as citizens. The Indians remained largely a rural people, lacking both education and opportunity." End of quote. These came from the White Paper.

 

Mr. Speaker, what do these excerpts and others in this statement represent? Exactly what do these statements represent? To me they represent a knowledge of the existence of the Indian problem. After 103 years they have finally admitted they represent a knowledge of existence of the Indian problem. They represent a proof that for over 103 years there have been no real efforts to solve the problem. They represent a glowing admission of failure. They represent a lack of rehabilitative policy. They represent a lack of consultations with the Indian people when consultations were opportune and necessary.

 

[…]

 

Mr. Speaker, the native Indians must be allowed sufficient time and opportunity to adjust into the social, economic, and educational life of the country. I say for 100 years of confinement and neglect there must be 100 years of government-sponsored programme for Indian rehabilitation.

 

 

February 12, 1970

 

Mr. Campbell:

 

Mr. Speaker, I want to say a few words about Indian Affairs, because the member for Atlin did have what I considered to be a reasoned approach in his talk to the question of Indian Affairs. There is only one thing I wish he had said, because when you start getting down to the nitty gritty of this thing, I think my friend can appreciate what I mean, when you start dancing around and trying to work out an arrangement with the Federal Department of Indian Affairs. He's probably had as much experience with it as I have, or more, and I think he might be prepared to admit that the real problem presented by the Chrétien White Paper on Indian Affairs, is the lack of a specific commitment. That after 100 admitted years of mismanagement, nothing that you are going to do on this question of transferring responsibilities to Provinces, rehabilitation in terms of the educational apparatus that you might set up for Indians, restructuring their communities and the life that's in them, restructuring a good many of the road patterns which are in their reserves, almost redoing the whole housing apparatus in most of the reserves - not all of them, all of these things require a specific commitment in dollar bills, and that, Mr. Speaker, has not been forthcoming, not been forthcoming.

 

Mr. Speaker, the White Paper really failed because, while it implies that at long last there's a confession of failure, while it implies that and they, in fact, say that 100 years of mismanagement represents one of the dark blots on-as the Prime Minister calls it - his Just Society.

 

 

February 14, 2007

 

R. Cantelon:

 

I also had the privilege recently to participate in the second aboriginal education enhancement agreement with school district 69. This is the second of the agreements — one of 30 that have been signed with aboriginal peoples across the province — and it's a great partnership between the school district and the first nations. It has achieved some remarkable results.

 

Since 2001 the completion rate in grade 12 has risen from 31 percent — which I'm sure everyone would acknowledge is terribly low, in fact, dismally low — to 58 percent. Now 58 percent is still not as high as it is for other citizens, other young people, at 79 percent, but that is a significant 27-percent improvement in achievement level. Other achievement levels were equally as impressive.

 

But the numbers don't tell the whole story, and it's really not about numbers for first nations. It's really about having a sense of hope and opportunity that at last, and I really do mean at last, they can move forward and take part in the opportunities that this thriving economy presents to them, that they can have the hope that they will see their dreams fulfilled in this economy and that the barriers that used to be there for first nations entering the workforce will be removed.

 

 

February 15, 2007

 

H. Lali:

 

They have the worst record from this government in terms of social and economic justice for aboriginal people. It is absolutely shameful for the Premier and the Liberal government to try to bundle this up to say that somehow their new initiatives are helping the aboriginal people in all these fields when stat after stat…. These aren't statistics that are provided by New Democrats. These are stats that are provided by this government itself and the Canadian StatsCan department.

 

Every one of those indicators, every single one of those stats, shows that the lot of aboriginal people is not any better under this Liberal government than it was in 2001. They have completely ignored the plight of aboriginal people — aboriginal health, aboriginal economics and education in every field. I just don't know how they can support this document of fiction that we see here before us.

 

[…]

 

Aboriginal education. They dropped funding for aboriginal education, and here they want to talk about reconciliation with aboriginal people. Well, start by putting back the money into aboriginal education. That might be a start to reconciliation.

 

 

The legal relationship between the federal and provincial governments and First peoples qua fiduciary is as unequivocal as the obligations to them on a wide variety of substantive matters are onerous.  The relationship entails of the highest trust and respect; that the Honor of the Crown requires all dealings be with the utmost good faith. 

 

The consequences of Canadian constitutional law and the law of contract and of fiduciaries places a financial burden both on Canada’s federal and provincial governments, and, as importantly, on the sovereignty-sharing Chinese government.  Having become a willing party to the economic marginalization of aboriginal peoples, they are jointly and severally liable to them for all losses during the last thirty-five years.  This has critically important ramifications geo-politically because proven liability for compensation empowers the international community to take all reasonable measures to ensure that the Beijing leadership pays its share of the damages for the carnage it caused since the mid-1970s. 

 

There cannot be any denying that the failure to provide adequate educational resources for the last hundred plus years leads to a damage award commensurate with the loses, actual and potential, suffered by all.  Because “the Crown acts as the … guarantor of their Aboriginal and treaty rights”, the two levels of government are required under Canadian law to provide sums which not only adequately compensate aboriginals individually and collectively, but create an educational infrastructure identical in quality, resources, sophistication and efficacy as the public school system. 

 

 

Parliament Hansard

 

February 19, 2007

 

Mr. Réal Ménard (Hochelaga, BQ):

 

The government has a fiduciary responsibility to the first nations. Sadly, it is doing a very poor job of living up to its responsibilities and has not put sufficient resources for housing on the table.

 

 

The Crown's Fiduciary Relationship with Aboriginal Peoples

by Mary C. Hurley

Law and Government Division

December 18, 2002

 

Background

 

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

 

just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.

 

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

 

the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact:  when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.  It is this fact … above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.

 

Judicial Interpretation

 

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 fiduciary relationship is rooted in the concept of Aboriginal title,(5) coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown;

 

·         this requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group;

 

·         in the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind.

 

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:

 

*     the “general guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples.  The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship”;

 

   "the honour of the Crown is at stake in dealings with aboriginal peoples.(7)  The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”;

 

*     “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test.(8)

 

 

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:

 

·         fiduciary obligations are not restricted to section 35 rights or to existing reserves:  they come into play “to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples”;

 

·         the fiduciary duty “does not exist at large.”  Because not all obligations between the parties to a fiduciary relationship are necessarily of a fiduciary nature, the focus should be on “the particular obligation or interest [in] dispute and whether or not the Crown had assumed discretionary control … sufficient to ground a fiduciary obligation”;

 

·         rather than providing a “general indemnity,” the content of the Crown’s fiduciary duty “varies with the nature and importance of the interest sought to be protected”;(13)

 

·         the Crown is not an ordinary fiduciary and is obliged, depending on the context, to have regard to the interests of many parties, not just the Aboriginal interest.

 

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.

 

Extra-Judicial Considerations

 

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:

 

Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights.  This fiduciary relationship is a fundamental feature of the constitution of Canada.(15)

 

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 federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.(17)

 

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 endorse a similar position.

 

Explicit or implicit governmental acknowledgement of the Crown-Aboriginal fiduciary relationship may be found in, for example:

 

·         Gathering Strength:  Canada’s Aboriginal Action Plan,(19) the federal government’s January 1998 response to the RCAP Report.  While not appearing to state the fiduciary relationship directly, the document emphasizes objectives relating to renewed relationships, partnerships, and shared responsibilities;

 

·         section 5.8 of the 1994 Manitoba Framework Agreement Initiative,(20) under which “[t]he Crown’s fiduciary relationship will continue in accordance with judicial decisions, aboriginal rights, constitutional provisions including Section 35 of the Constitution Act, 1982, the Treaties and other laws and sources of law, or any of them”;

 

·         the federal government’s 1995 policy guide on Aboriginal Self-Government,(21) which states that self-government may “change the nature” of the Crown’s “unique, historic, fiduciary relationship” with Canada’s Aboriginal peoples, in that, as Aboriginal institutions assume greater governance responsibilities, Crown responsibilities will lessen accordingly;

 

·         the statement of the Minister of Indian Affairs in the context of 2001 discussions on First Nations Governance, asserting that the initiative would not “eliminate the fiduciary relationship that exists between the Crown and First Nations”;(22)

 

·         the 2002 Provincial Policy for Consultation with First Nations issued by the Government of British Columbia in light of Supreme Court of Canada decisions which recognize the relevance of the fiduciary relationship in the context of potential infringement of Aboriginal rights or title.(23)

 

 

Commentary

 

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.

 

--------------------------------------------------------------------------------

 

Endnotes

 

1.       ([1996] 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., [1950] S.C.R. 211; [1952] 2 D.L.R. 225, at 232.

4.       [1984] 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.

6.       [1990] 1 S.C.R. 1075.  Sparrow and subsequent Supreme Court of Canada decisions cited may be accessed via the Court’s web site.

7.       This broad finding has been reiterated in subsequent decisions, including, for example, R. v. Marshall, [1999] 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, [1996] 3 S.C.R. 139.

9.       [1996] 3 S.C.R. 101.

10.   [1997] 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), [1999] 1 F.C. 38 (T.D.); Gitanyow First Nation v. Canada, [1999] 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, [1996] 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.

23.   The document may be accessed via the web site of the B.C. Ministry of Aboriginal Affairs.

 

 

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73

 

[McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.]

 

The Chief Justice —

 

B.  The Source of a Duty to Consult and Accommodate

 

16 The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456.  It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

 

17 The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems.  In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.  Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”:  Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31.

 

 18 The honour of the Crown gives rise to different duties in different circumstances.  Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty:  Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, at para. 79.  The content of the fiduciary duty may vary to take into account the Crown’s other, broader obligations.  However, the duty’s fulfilment requires that the Crown act with reference to the Aboriginal group’s best interest in exercising discretionary control over the specific Aboriginal interest at stake.  As explained in Wewaykum, at para. 81, the term “fiduciary duty” does not connote a universal trust relationship encompassing all aspects of the relationship between the Crown and Aboriginal peoples:

 

 . . . “fiduciary duty” as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship . . . overshoots the mark.  The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests.

 

 Here, Aboriginal rights and title have been asserted but have not been defined or proven.  The Aboriginal interest in question is insufficiently specific for the honour of the Crown to mandate that the Crown act in the Aboriginal group’s best interest, as a fiduciary, in exercising discretionary control over the subject of the right or title.

 

19 The honour of the Crown also infuses the processes of treaty making and treaty interpretation.  In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of “sharp dealing” (Badger, at para. 41).  Thus in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that “nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship . . .”.

 

20 Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims:  R. v. Sparrow, [1990] 1 S.C.R. 1075, at pp. 1105-6.  Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982.  Section 35 represents a promise of rights recognition, and “[i]t is always assumed that the Crown intends to fulfil its promises” (Badger, supra, at para. 41).  This promise is realized and sovereignty claims reconciled through the process of honourable negotiation.  It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests.  This, in turn, implies a duty to consult and, if appropriate, accommodate.

 

21 This duty to consult is recognized and discussed in the jurisprudence. In Sparrow, supra, at p. 1119, this Court affirmed a duty to consult with west-coast Salish asserting an unresolved right to fish.  Dickson C.J. and La Forest J. wrote that one of the factors in determining whether limits on the right were justified is “whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented”.

 

22 The Court affirmed the duty to consult regarding resources to which Aboriginal peoples make claim a few years later in R. v. Nikal, [1996] 1 S.C.R. 1013, where Cory J. wrote:  “So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement” (para. 110).

 

23 In the companion case of R. v. Gladstone, [1996] 2 S.C.R. 723, Lamer C.J. referred to the need for “consultation and compensation”, and to consider “how the government has accommodated different aboriginal rights in a particular fishery …,  how important the fishery is to the economic and material well-being of the band in question, and the criteria taken into account by the government in, for example, allocating commercial licences amongst different users” (para. 64).

 

24  The Court’s seminal decision in Delgamuukw, supra, at para. 168, in the context of a claim for title to land and resources, confirmed and expanded on the duty to consult, suggesting the content of the duty varied with the circumstances: from a minimum “duty to discuss important decisions” where the “breach is less serious or relatively minor”; through the “significantly deeper than mere consultation” that is required in “most cases”; to “full consent of [the] aboriginal nation” on very serious issues.  These words apply as much to unresolved claims as to intrusions on settled claims.

 

25 Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.  Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties.  Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982.  The honour of the Crown requires that these rights be determined, recognized and respected.  This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.  While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

 

[...]

 

32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.  Reconciliation is not a final legal remedy in the usual sense.  Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.  This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.  As stated in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, at para. 9, “[w]ith this assertion [sovereignty] arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation”.

 

 

Resolution No. 57

 

Annual General Assembly, July 20 – 23, 1999, Vancouver, B.C.

 

Moved by: Chief Chris Shade, Blood/Kainaiwa First Nation

 

Seconded by: Chief Mike Mitchell, Mohawks of Akwesasne

 

Carried

 

Subject: Increase Funding Levels for Housing

 

[…]

 

WHEREAS the Government of Canada has a legal and fiduciary responsibility derived from the special First Nations to Crown relationship with First Nations peoples of Canada and that fiduciary responsibility has been continually denied and;

 

[...]

THEREFORE BE IT RESOLVED THAT the AFN demand the Federal Government act on the legal and fiduciary responsibility and include significant increases in funding.

 

 

Presentation to Standing Committee on Aboriginal Affairs

Toronto, Ontario

March 21, 2003

 

Grand Chief Christopher McCormick

Association of Iroquois and Allied Indians

 

With me are members of the Chiefs’ Council, our governing body. Our members include eight First Nations these are:

 

Batchewana First Nation of Ojibways

Caldwell First Nation

Delaware First Nation

Mississaugas of the New Credit

Mohawks of the Bay of Quinte

Oneida Nation of the Thames

Wahta Mohawks

 

The government of Canada has a binding fiduciary obligation to First Nations which is founded in the 1763 Royal Proclamation and the pre-existing Aboriginal rights. The recognition and affirmation of Aboriginal and treaty rights in the 1982 Constitution Act is a solemn promise and the Honour of the Crown depends upon the fulfillment of those promises.

 

 

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