First Among Equals: The Honour of the Crown, Aboriginal Title, and Fiduciary Duty in Canadian Aboriginal Law
Creators: Reddekopp, George Neil
Publisher: name: University of Alberta Library
Year: 2022

<p>Canadian Aboriginal law, which I define as the study of the legal nature of the relationship between Indigneous peoples and the Crown, is for all practical purposes a development of the past 50 years. Over that time, three possible paradigms have emerged to guide the development of Aboriginal law. The first two of these, Aboriginal title and Crown fiduciary duty, date from the 1970s and 1980s respectively. While both of these were viewed as having great promise at their appearance, neither has come to apply to more than a narrow range of the broader Indigenous-Crown relationship. Aboriginal title is not a consideration where that title has been ceded or otherwise lost, and as developed by the Supreme Court of Canada, does not provide the exception to Crown allodial title and jurisdiction sought by Indigenous peoples asserting it. The Supreme Court&#39;s statement that the Indigenous-Crown relationship is broadly fiduciary has not resulted in the imposition of Crown fiduciary duty other than in cases where the Crown has assumed discretionary control over a cognizable, tangible, Indigenous interest.</p>

<p>Over the past 20 years, the Honour of the Crown has developed as a principle of general application across the entire range of Aboriginal law. It is not inconsistent with the Supreme Court&#39;s repeated confirmation of Crown allodial title and jurisdiction, and in fact it represents limits on Crown authority and obligations imposed on the Crown as a corollary to this title and jurisdiction. It is not limited to cognizable, tangible Indigenous interests, and applies across the entire range of the interaction between Indigenous peoples and the Crown. While initially applied to the interpretation and implementation of treaties, it has expanded to govern law relating to the Crown&#39;s duty to consult with Indigenous peoples and to require the fulfilment of Crown promises (unilateral or otherwise) of a constitutional nature and to provide a remedy to Indigenous peoples when litigation regarding historic claims is otherwise precluded by the application of statutes of limitation.</p>

<p>There are references to the Honour of the Crown in Supreme Court decisions relating to Indigenous peoples in the late nineteenth and early twentieth centuries. However, closer scrutiny suggests that these references represent views that fall far short of the modern understanding of the Honour of the Crown. In the first modern decisions introducing the Honour of the Crown, judges reached back over the centuries to early seventeenth century decisions by Chief Justice Edward Coke, who himself described his actions are arising out of the development of the common law in earlier centuries.</p>

<p>As a relatively new doctrine, the boundaries of the Honour of the Crown are still being explored. While earlier decisions did not apply it to impose positive obligations on the Crown arising out of treaties, recent developments, including the creation of the Specific Claims Tribunal suggest that decisions imposing these obligations may be more frequent in the future. The type of past Crown undertakings that give rise to the Honour of the Crown and relief from the application of statutes of limitation is a work in progress, and the breadth of this releif will be determined in future decisions.</p>

<p>Aboriginal title and Crown fiduciary duty have not been eclipsed by the Honour of the Crown and continue to apply in specific areas. There remain parts of Canada, which are frequently rich in resources, where there can be no credible assertion that Aboriginal title has been ceded. Although case law has determined that Crown fiduciary duty is a subset of the Honour of the Crown, issues related to the management of reserve lands and the funds received from the sale of surrendered reserve land give rise to fiduciary duty. But neither of these considerations threaten the dominance of the Honour of the Crown in Canadian Aboriginal law.</p>