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Fashioning Legal Authority from Power: The Crown-Native Fiduciary Relationship

New Zealand Journal of Public and International Law, Vol. 4, pp. 91-116, 2006

30 Pages Posted: 18 Mar 2008 Last revised: 21 Nov 2015

Evan Fox-Decent

McGill University - Faculty of Law

Abstract

The prevailing view in Canada of the Crown-Native fiduciary relationship is that it arose as a consequence of the Crown taking on the role of intermediary between First Nations and British settlers eager to acquire Aboriginal lands. First Nations are sometimes deemed to have surrendered their sovereignty in exchange for Crown protection. The author suggests that the sovereignty-for-protection argument does not justify the claim that Aboriginal peoples lost their sovereignty to the Crown. Furthermore, Aboriginal treaties compel the courts to take seriously Aboriginal peoples' sovereign authority to treat with the Crown. First Nations did not intend to surrender their sovereignty through the treaty process, but courts assume that this is the result. Against this background, the author argues that the Supreme Court of Canada has imposed fiduciary obligations on the Crown in order to legitimize the Crown's assertions of sovereignty over Canada's Aboriginal peoples.

Keywords: first nations, aboriginal, aboriginal peoples, indigenous, indian, fiduciary

Suggested Citation

Fox-Decent, Evan, Fashioning Legal Authority from Power: The Crown-Native Fiduciary Relationship. New Zealand Journal of Public and International Law, Vol. 4, pp. 91-116, 2006 . Available at SSRN: https://ssrn.com/abstract=1107220

Evan Fox-Decent (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://https://www.mcgill.ca/law/about/profs/fox-decent-evan

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