The Crown Fiduciary Duty at the Supreme Court of Canada: Reaching across Nations, or Held within the Grip of the Crown?

Abstract

Beginning with Guerin v The Queen in 1984, Canadian courts have imposed a fiduciary obligation on the Crown in its dealings with Aboriginal land. The doctrine of a Crown fiduciary obligation came to anchor the constitutional framework developed by the courts for reconciling “the pre-existence of aboriginal societies with the sovereignty of the Crown”. There is ambiguity and tension running through this judicial doctrine, revolving around the question: is the goal reconciliation across legal systems and the distinct societies in which they are grounded, or within a constitutional system grounded fundamentally in the Crown’s assertion of sovereignty? The case law developed over the past three decades does not provide a clear or consistent answer. This paper aims to provide an overview of the current state of the law and the tension running through it between contrasting political visions: on the one hand, a nation-to-nation (or “transnational”) vision of reconciliation and, on the other, a vision of reconciliation achieved under the umbrella of Crown sovereignty.

Keywords: Canada, Indigenous, Constitution, Law, Aboriginal, Sovereignty, Fiduciary, Pluralism