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Crown-aboriginal fiduciary relationships : false optimism or realistic expectations? Walker, Patrick 1992

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CROWN-ABORIGINAL FIDUCIARY RELATIONSHIPS: FALSE OPTIMISM OR REALISTIC EXPECTATIONS? by PATRICK WALKER B.A. (Hons.), University of Saskatchewan, 1984 LL.B., Queen's University, 1989 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA October, 1992 Patrick Walker  In  presenting  degree freely  at  this  the  thesis  in  partial  fulfilment  University  of  British  Columbia,  available for  copying  of  department publication  this or of  reference  thesis by  this  for  his thesis  and study. scholarly  or for  her  of  gain  shall  permission.  (Signature)  Department  of  The University of British Vancouver, Canada  Date  DE-6  (2/88)  Columbia  that  agree  may  representatives.  financial  requirements  I agree  I further  purposes  the  It not  be  that  the  by  understood be  allowed  an  advanced  Library shall make  permission  granted  is  for  for  the that  without  it  extensive  head  of  my  copying  or  my  written  ABSTRACT  As a result of the Supreme Court of Canada's decision in R. v. Sparrow, the government's fiduciary obligations towards aboriginal peoples was extended into the area of constitutionally entrenched aboriginal and treaty rights. Native people expressed their expectations that this doctrinal development would be an instrument for native empowerment. To date, the Courts have delivered little under the fiduciary rubric. After examining the history and jurisprudence associated with the fiduciary concept, a critical approach is adopted in order to determine what phenomena are acting to limit the doctrine's potential. Three areas are explored in an attempt to determine why the legal system may operate to prevent the realisation of substantive gains. These include: inherent textual limitations, law and politics, and 'dominant' and 'judicial' ideologies. Sparrow represents the best impusles of reform from the Supreme Court of Canada. Yet, because the judgment does not openly question a hierarchical position of authority for the Crown, it may reproduce dependency in a new form. The study of native people's experience with fiduciary litigation provides instruction for all disadvantaged groups in relation to the potential of using law to achieve social change.  ii  CROWN-ABORIGINAL FIDUCIARY RELATIONSHIPS: FALSE OPTIMISM OR REALISTIC EXPECTATIONS? TABLE OF CONTENTS Abstract Acknowledgements  ll  iv  CHAPTER 1., THEORY AND METHODOLOGY Identity Politics: Locating My Position to My Work Liberalism and its Critics Postmodernism Feminism and Postmodernism  (i) (i) (ii) (iv) CHAPTER 2. (i) (ii) (iii) (iv)  (v)  EXPANDING THE SCOPE  41  R. v. Sparrow Fiduciary Discourse Common Law and History as Fiduciary Reference Points Crown-Aboriginal Fiduciary Jurisprudence: (a) Pre-Sparrow (b) Post-Sparrow  45 50  Fiduciary Obligations and Policy Development  (vi)  (ii) (iii) (iv)  EXISTING LIMITATIONS  Unjustifiable Limitations Law and Politics Expanded Judicial Discretion: Homogeneity, Cultural Difference and Balancing Tests Law and Ideology  CHAPTER 4. TOWARDS A PROGRAMME OF STRATEGY  62 75 75 88 101  Fiduciary Obligations and Self-Government  CHAPTER 3. THE FIDUCIARY CONCEPT: (1)  10 19 24 34  114 119 112 122 132 143  156  BIBLIOGRAPHY  172  ill  DEDICATION  During my three years of study at Queen's Law school I had the pleasure of befriending Laurel Johnson, a Mohawk women living in north eastern Ontario. During my third year a program was established to provide tutors for students from "non-traditional" backgrounds. For one year Laurel and I worked together. She taught me far more than I taught her. This thesis is dedicated to her.  iv  Important to the relationship between the Crown and aboriginal peoples is the concept of the fiduciary duty owed by the Crown. The duty is rooted in history and reflects the unique and special place of aboriginal peoples in Canada....The determination of the extent to which fiduciary duty continues to exist is a matter for the courts. - The Report of the British Columbia Claims Task Force. June 29, 1991.  V  1 CHAPTER ONE THEORY AND METHODOLOGY  There are those who maintain that in its present form the Canadian legal system is incapable of rendering justice where Indians are concerned.  For example, Mary Ellen Turpell argues  that differences between European and native legal systems and especially between their respective conceptions of property and ownership propose formidable barriers to a just resolution of the concerns of aboriginal peoples.1  Nonetheless the combined  effect of a number of recent Supreme Court of Canada decisions raise expectations that skeptics like Turpell might be wrong.2 The black feminist author Audre Lorde uses a trenchant metaphor which captures the inefficacy of using the legal system to accomplish progressive social change. Lorde writes: "You cannot dismantle the master's house with the master's tools."  The  slogan is an indictment of well intended law reform projects and points to the futility of engaging with law to accomplish progressive social change. 3 1 Mary Ellen Turpell, "Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differences" (1989/90) 6 Canadian Human Rights Yearbook 3. 2  R. v. Sparrow , [1990] 1 S.C.R. 1075 places the Crown-Aboriginal relationship on new grounds. R. v. Sioui , [1990] 1 S.C.R. 1025 raises treaty recognition and interpretation to new levels. Lorde's insights apply to the law reform projects of liberal feminists. Liberal feminists approached issues of inequality with the liberal assumption that women's status could be elevated by fair and neutral laws applied equally to all. See: Boyd, Susan. "Child Custody, Ideologies and Employment" (1989) 3 Canadian Journal of Women and the Law 111. The strategy proved inadequate to achieving substantive equality. Lorde provides this explanation:  2 In c o n t r a s t t o t h e scepticism r e p r e s e n t e d by Lorde, t h e r e are those who b e l i e v e t h a t i t would be a mistake t o uniformly condemn the l e g a l system as i t r e l a t e s t o d i s p u t e s n a t i v e people.  involving  P a t r i c k Macklem argues t h a t t o reduce the r o l e  of law t o t h a t of v i l l a i n in t h e saga of n a t i v e s t r u g g l e s i s t o ignore important moments in which t h e law has served t o improve t h e l i v e s of n a t i v e people, and t o f o r e c l o s e  "a powerful source  of p o t e n t i a l s o c i a l transformation. 1 ' 4 In a s i m i l a r vein E.P. Thompson has w r i t t e n t h a t any s e r i o u s movement for s o c i a l change cannot t r e a t the l e g a l process as a mere sham but r a t h e r must recognize t h a t i t i s an important aspect of s o c i a l l i f e and an 5  arena of s o c i a l s t r u g g l e . people, n a t i v e Canadians  6  In t h e context of law and a b o r i g i n a l have accomplished a l o t more in t h e  What does i t mean when t h e t o o l s of a r a c i s t p a t r i a r c h y a r e used t o examine t h e f r u i t s of t h a t same p a t r i a r c h y ? I t means only t h e most narrow p e r i m e t e r s of change a r e p o s s i b l e and a l l o w a b l e . Audre Lorde, "The M a s t e r ' s Tools Will Never Dismantle t h e M a s t e r ' s House" i n A. Lorde S i s t e r O u t s i d e r (Trumansburg, New York: The C r o s s i n g P r e s s , 1984), p . 110. For a d i s c u s s i o n of t h e p a u c i t y of g a i n s achieved under t h e l i b e r a l f e m i n i s t p r o j e c t s e e : Poff, Deborah C . . "Feminism and Canadian J u s t i c e : How Far Have We Come? (1990) 2 Canadian J o u r n a l of Human J u s t i c e 9 3 ; Smart, C a r o l . Feminism and t h e Power of Law (London: R o u t l e d g e , 1 9 8 9 ) . 4  P a t r i c k Macklem, " F i r s t Nation Self-Government and t h e Borders of t h e Canadian Legal I m a g i n a t i o n " (1991) 36 McGill Law J o u r n a l 382, p . 393. 6  E . P . Thompson, Whigs and H u n t e r s : The O r i g i n of t h e Black Act (New York: Pantheon Books, 1975), p p . 265-267. Throughout t h i s work t h e terms ' a b o r i g i n a l p e o p l e , ' " n a t i v e Canadians' and ' F i r s t N a t i o n s c i t i z e n s ' a r e used i n t e r c h a n g e a b l y . They a r e terms which a r e i n t e n d e d t o embrace a l l of t h e f i r s t p e o p l e s of what i s now c a l l e d Canada. The t e r m s subsume a l l I n d i a n s , whether r e g i s t e r e d under t h e I n d i a n A c t , R.S.C. 1970, c . 1-6, or n o t , and i n c l u d e p e o p l e s of v a r i o u s F i r s t N a t i o n s ( e . g . , Haida, Cree, Micmac), t h e M e t i s , and t h e I n u i t .  3 legal sphere than in the political arena in their attempts to address  their  grievances.  Where  aboriginal  people  are  concerned, legal victories have served to initiate political and constitutional change. 7 What follows is a thesis project which attempts to explore the newly emerging legal area of Crown-aboriginal fiduciary relationships.  As represented by Macklem's statement, half of  this project is to explore positive doctrinal possibilities outlining  where  the  fiduciary  concept  could  lead.  As  represented by Lorde's statement, the second half of this project is to engage in critical thinking with respect to the fiduciary concept.  Ever since the Supreme Court of Canada  handed down its decision in Sparrow parts of the aboriginal community have expressed great expectations in relation to the Court's pronouncements on fiduciary obligations.  If Lorde is  correct, the fiduciary concept is an example of legal doctrine which seems ripe with possibilities but, in light of lessons from the past, and given the restrictions of the present legal system, has little potential to transform the lives of native peoples.  If Macklem is correct, First Nations, governments,  lawyers and the Courts have been given windows of opportunity to positively shape native reality into the future. It has been said that the characterization of the Crown-  7  For example, Calder et al. v. Attorney General of B.C., [1973] 1 S.C.R. 313 led to the adoption of the federal native claims policies. By firmly recognizing constitutionally entrenched aboriginal and treaty rights Sparrow provides the basis on which further constitutional negotiations can take place.  4 aboriginal  relationship  as  fiduciary  leaves  intact  the  "underlying hierarchical relationship between the Crown and First Nation."  8  The result is to frustrate the quest for a  greater degree of self government for Canada's First Nations. Behind the utilization of the fiduciary concept lays the risk that it may prove impossible to discard long standing notions that the Crown stands to Aboriginal peoples as a guardian towards a ward on the assumption that natives are largely incapable of handling their own affairs. 9 On the other hand this new doctrinal development is an attempt to move the common law in positive directions.  Brian  Slattery has written that the most important effect of the Sparrow decision was to entrench the trust relationship with Aboriginal peoples into s. 35 of the Constitution Act, 1982, and to "put it on a more contemporary and democratic footing."  10  According to Slattery the Crown's fiduciary relationship with First  Nations  differs  significantly  from  the  concepts  of  dependency and vulnerability to which the concept of fiduciary  Macklem, p. 386.  9 This dependency notion is well embedded in the common law and can be traced to the view expressed by Chief Justice Marshall of the United States Supreme Court in Cherokee Nation v. Georgia (1831) 30 U.S. (5 Pet.l) (reprinted in Getches and Wilkinson Federal Indian Law (St. Paul, Minnesota: West Publishing, 1986), p. 46) where he characterized Indian tribes as "domestic dependent nations" which were "in a state of pupilage" and stated that their relation to the U.S. "resembles that of a ward to his guardian."(at 4 7 ) . 10 Brian Slattery, "First Nations and the Constitution: A Question of Trust" (1992) 71 Canadian Bar Review 261, p. 271.  5 has been linked in the past.  For him the Crown's trust  responsibility rests on premises more compatible with fostering independence and self-government for First Nations. The result is to provide doctrinal opportunities to transform and expand the  law  so  that  empowerment.  For  it  can  serve  example, one  as of  a the  vehicle  for  components  native of  the  justification test for laws which infringe aboriginal and treaty rights is the necessity of consultation with native people affected  by  state  regulation.11  Hypothetically,  if  the  requirement of consultation is deepened and extended in future cases it could result in a constitutional requirement of an equal partnership between governments and First Nations in the drafting of Laws which affect s. 35(1) rights. Four chapters comprise the body of this thesis project. In  this  introductory  chapter  I  attempt  to  methodology and influences which shape my work.  outline  the  Brief synopses  of why the critique of liberalism, feminist legal studies and postmodernism  are important  to this project  are provided.  Chapter Two provides a contextual backdrop to the fiduciary concept in the form of a review of jurisprudence and relevant history. If creatively applied Sparrow should establish a basis for expanding the scope and content of the fiduciary concept. The latter part of Chapter Two posits that fiduciary standards could require an equal partnership between governments and First Nations 11  in  the  drafting  Sparrow, p. 1119.  of  laws  and  policies  affecting  6 aboriginal interests. Using new constitutional requirements it is an attempt to expand the borders of the Canadian legal imagination.  In contrast to the optimism of Chapter Two,  Chapter Three relies on a more critical approach to delve into the inherent limitations of both the fiduciary concept and the legal system. To this end, explorations of law and politics, the role  of  cultural  undertaken.  difference,  and  law  and  ideology  are  Finally in the concluding chapter a theory of law  as a means to social change is presented. Christine Boyle has written, "There is not a dichotomy between political and non-political legal analysis. There is one between values explicitly and implicitly expressed."  12  This '  thesis is overtly political. The methodology of my project is to study the jurisprudential use of the fiduciary concept in order to reveal some of the politics embedded in law and to reveal how law functions to legitimate the existing order.  Its premise is  that "liberal legalism" often thwarts attempts at progressive social change. I believe that the law is deeply reflective of the political and ideological conflicts in society. Furthermore I believe that institutional and systemic arrangements - of the economy, state and culture - shape and are shaped by law.  The  goal of this work (its prescription) is to arrive at a realistic version of law's power to determine when it is best to engage with  the  legal  system  and when  it  is best  to undertake  alternative avenues to social change. 12  "Book Review" (1985) 63 Canadian Bar Review 427, at 432.  7 Various  philosophies  and  perspectives  analytical framework for this project.  provide  the  Feminist legal studies,  critical legal studies (CLS) and postmodernism have shaped my thinking. Distinct separations between the three approaches are often difficult for extensive cross-fertilization has occurred among  these  ideological\philosophical  schools.  Two  deconstructive techniques are central to my analysis. First is that of law and ideology, i.e. an analysis of law which explains the role of law in terms of the way law both legitimates and reproduces status quo social relations.  Second is discourse  theory, i.e., the study of law that derives from the work of Foucault and Derrida focusing on specific language and power relations which construct knowledge. Part of the motivation for this work is derived from feminist notions of the "personal as political" and the more recently developed notion of "radical particularization." latter  methodology,  "specificity," refers to  14  also  known  in  "identity politics"  a theoretical  approach  feminist 15  13  The  literature  and "positionality"  as 16  that eschews generalized  Barbara Findlay, "With All of Who We Are: A Discussion of Oppression and Dominance" (Vancouver: Press Gang Publishers, 1991), p. 10. 14 Kathleen A. Lahey, "On Silences, Screams and Scholarship: An Introduction to Feminist Legal Theory" in Richard Devlin, ed. Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery Publications, 1991), p. 319. 15 Dawn C u m e and Marlee Kline, "Challenging Privilege: Women, Knowledge and Feminist Struggles" (1991) 2(2) The Journal of Human Justice 1. 16 Kate Bartlett, "Feminist Legal Methods" 103 (1990) Harvard Law Review 829.  8 theories of the state and its oppression and instead encourages the idea that  "one's identity  is taken and defined  as a  political point of departure, as a motivation for action, and as a delineation of one's politics."17  In giving full meaning to  the power of the personal it is necessary to examine the particularity of each person's location in relation to the oppressions of society. In relation to academic work this means that researchers are urged to acknowledge and explore their own relationships to the questions they are investigating.  My  experience as a white gay man will be different than my friend's experience as a straight First Nation Cree.  Each of us is  located differently in relation to the oppression of native people, racism or homophobia.  These different locations affect  our experience both of the world and of each other.18 Recently some changes are noticeable, yet, overall, in the Canadian tradition the legal perspective, i.e. that of judges and academics, has been that of the middle class, white, heterosexual male.  The experience of oppression by those who  are not members of this group for reasons of gender, race, class, sexual orientation, or other characteristics, are not part  of  this  elite's  worldview.  Consequently  the  legal  perspective rarely acknowledges let alone understands issues 17  See: Brenda Cossman and Ratna Kapur, "Trespass, Impasse, Collaboration: Doing Research on Women's Rights in India" (1991) 1(2) The Journal of Human Justice 99, at 110.. 18  For an insightful discussion of the impact of dominance and difference see Barbara Findlay, "With All Of who We Are: A Discussion of Oppression and Dominance" (Vancouver: Lazara Press, 1991.)  9 l i k e sexism, racism, or homophobia.  19  As a white male i t i s important t h a t I ask myself  hard  questions about why, as member of t h e dominant majority, I would consider doing graduate work in a b o r i g i n a l law. I do not share a common ancestry or c u l t u r e with those about whom I w r i t e .  As  Turpell p o i n t s out even the most well i n t e n t i o n e d  academics  unwittingly  of  perpetuate  domination  as  a  result  their  c o n t r i b u t i o n s t o the f i e l d of t h e law and a b o r i g i n a l peoples. 2 0 This does not mean t h a t non-aboriginals should not w r i t e or do research i n t o i s s u e s a f f e c t i n g a b o r i g i n a l s . write  about  law  and  ideologies  that  Rather, we should  participate  c o n s t r u c t i o n and maintenance of exclusionary systems.  in  the  In order  t o deconstruct t h e i n t e r l o c k i n g pieces t h a t make e x i s t i n g models Readings I have found h e l p f u l i n e x p l o r i n g t h e i d e a s of dominance and e x c l u s i o n i n c l u d e : Barnes, Robin."Race C o n s c i o u s n e s s : The Thematic Content of R a c i a l D i s t i n c t i v e n e s s i n C r i t i c a l Race S c h o l a r s h i p " (1990) 103 Harvard Law Review 1864; B a r t l e t t , K a t h e r i n e . "Feminist Legal Methods" (1990) 103 Harvard Law Review 829; Crenshaw,Kimberle. "Race, Reform and Retrenchment: T r a n s f o r m a t i o n and L e g i t i m a t i o n i n A n t i d i s c r i m i n a t i o n Law" (1988) 101 Harvard Law Review 1331; C u r r i e , Dawn and K l i n e , M a r l e e . "Challenging P r i v i l e g e : Women, Knowledge and F e m i n i s t S t r u g g l e s " (1991) 2(2) The J o u r n a l of Human J u s t i c e 1; Delgado, R i c h a r d . "When a S t o r y i s J u s t a S t o r y : Does Voice R e a l l y Matter"(1990) 76 V i r g i n i a Law Review 9 5 ; Duclos, N i t y a . "Lessons of D i f f e r e n c e : F e m i n i s t Theory on C u l t u r a l D i v e r s i t y " (1990) 38 Buffalo Law Review 3 2 5 ; K l i n e , Marlee "Race, Racism and F e m i n i s t Legal Theory" (1989) 11 Harvard Women's Law J o u r n a l 115; Lahey, Kathleen . " U n t i l Women have t o l d a l l t h e y have t o t e l l . . ( 1 9 8 5 ) 23 Osgoode H a l l Law J o u r n a l ; Lahey, K a t h l e e n . "On S i l e n c e s , Screams and S c h o l a r s h i p : An I n t r o d u c t i o n t o F e m i n i s t Legal Theory" i n Richard D e v l i n , e d . Canadian P e r s p e c t i v e s on Legal Theory ( T o r o n t o : Edmond Montgomery P u b l i c a t i o n s , 1991), p . 319; Freedman, Ann E . . " F e m i n i s t Legal Method i n Action : C h a l l e n g i n g Racism, Sexism and Homophobia i n Law School" (1990) 24 Georgia Law Review 849; hooks, b e l l . " t a l k i n g back" and "when I was a young s o l d i e r f o r t h e r e v o l u t i o n : coming t o v o i c e " , i n T a l k i n g Back: t h i n k i n g f e m i n i s t , t h i n k i n g b l a c k (Boston: South End P r e s s , 1989). Monture, P a t r i c i a . "Ka-Nin-Geh-Heh-Gah-E-Sa-NonhYay-Gah" (1986) 2(1) Canadian J o u r n a l of Women and t h e Law 159; Monture, P a t r i c i a . " R e f l e c t i o n s on F l i n t Woman" i n Richard Devlin ( e d . ) Canadian P e r s p e c t i v e s on Legal Theory (Toronto: Edmond Montgomery P u b l i c a t i o n s , 1991), p . 351. Turpell, p. 11.  10 seem natural and inevitable it is crucial that non-aboriginals research and write in areas which construct power differences and racism.  However, before embarking on a project it is  important to acknowledge one * s perspective and experience in order  to  reveal  the  particular  way  experiences and understands the world.21  in  which  an  author  It is an attempt to  acknowledge privilege as well as acknowledge the complexity of factors that contribute to an author's worldview. By revealing differentiating characteristics "internalized dominance"  22  is  confronted and the pretensions of authority and objectivity which often accompany legal discourse are minamalized.  (i)  IDENTITY POLITICS (Locating My Position In Relation To My Work)  The motivation for this project is highly personal, and simultaneously  highly  political.  From  an  epistemological  perspective it reflects an intellectual processing of personal experiences, and intuitions that partially result from being a gay man.  My perspective can be defined as that of "other"  21  In addition to being gay I am white, middle-class, and able bodied.  22  Findlay, p.4.  11 looking at the experience of another "other". 23  E  v  e  r  since I began studying law, I have had a growing discomfort with the limitations of the law as a vehicle for social change. During my undergraduate law studies I did not confront, as much as I would have liked, issues surrounding the sociology and philosophy of law.  Like most law students who are not members  of the "ruling classes" for reasons of gender, race, class, sexual orientation or other characteristics that differentiate them, I did not have the energy, power, or support system to pursue issues of oppression, difference, and power. it did not seem to be quite on point.  24  Somehow  Instead I stuck to  doctrine, doggedly determined to master the volumes of statutes and case law. When I returned to law school to do a Master of Laws degree it was time to pursue those questions about law which had always interested me: What is the role and function of the law in progressive politics? Are legal institutions crucial terrain on which significant social change can take place? If so, how? If not, why not? Now, I am in the sixth year of a career in law or rather,  The concept of the excluded "other" is taken from Simone de Beauvoir, The Second Sex (H.M. Parsely, (trans & ed.) (New York: Vintage Books, 1989), pp. x-xii. 24 By including this statement I realize I could be accused of avoiding complexity. As Barbara Findlay explains in her work "With All of Who We Are: A Discussion of Oppression and Dominance" (Vancouver: Lazara Press, 1991), a person can exist in multiple positions, as a member of the dominant society in one respect, and at the same time as a member of a subordinated group in another respect.  12 more accurately, a career in legal education.  Among other  issues, the past six years have coincided with coming to terms with my sexual identity, as well as coming to terms with the value and potential of law.  When I entered Queen's Law school  in 1986 I identified as a gay man privately, but was not ready to go public with my orientation. At that time I was convinced that the law could be used to end the oppression faced by disadvantaged groups, gays and lesbians included.  Like most  individuals my age I had absorbed the perspective of liberalism that harbours excessive expectations for law's power. It seemed natural and right to believe that the law could be used as an instrument to allow those from excluded and oppressed groups to fully participate  in Canadian society with  equal dignity,  respect and opportunities. I was convinced that rights were something worth having. It was my naive impression that all one needed to do was get to court, advance logical arguments, and judges would affirm the legal rights which were one's due.  My  sense of difference and powerlessness, could be remedied, so I thought, by the intervention of legendary blind justice.  In my  mind, opportunities had not yet presented themselves for gays and lesbians to place their stories before the courts.  Social  change was about getting the means (power) to insist that one's rights claims be honoured.  It did not occur to me that the  experience of gays and lesbians, or women, or minorities,25 25 I do not mean to imply that aboriginals are minorities. Regarding native Canadians the issue is not just one of numbers or ethnicity. Native Canadians are the original inhabitants of this country. To characterise them  13 might never by fully accommodated within the law. Six years later I am an "out" gay man who has a more realistic view of law's potential.  As I gradually left the  confines of the closet the answer to the question, "What is law's potential?" metamorphised.  The question originated from  the spaces of my personal experience as a closeted gay, spaces where I filed away difference and power lessness, and a space where I clung to the hope that law could take away the burden I felt because I had been cast as "other" in a world centred around the experiences  of white-heterosexual  males. In an  inversely  relationship,  confidence  proportional  as  my  to  identify as a gay man increased, my faith in the law as an agent for social change decreased. From 1986 onwards, each successive year brought a different answer to the "What is the potential of law for social change?" question.  The more I learned and  observed the more I realised I had to modify my response. Starting  with  idealism  I  moved  on  to  optimism,  through  scepticism to exorbitant doubts. At present I locate the answer somewhere between liberal optimism and the left's despair.  As  a result of this thesis project, I believe I now view law's potential  from a more realistic perspective:  it has its  utility, but to expect any large scale social change would be foolish.  as a group equivalent to ethnic or racial minority status is to devalue their special status. For a discussion of the location of First Nation citizens in the Canadian mosaic see Doug Sanders, "Article 27 and the Aboriginal Peoples of Canada" in Multiculturalism and the Charter; A Legal Perspective (Agincourt: Carswell, 1987), p. 155.  14 The most frequent question asked of me is, "Why isn't your thesis topic on gay and lesbian legal issues.?"  In response I  state that the intersection of law and politics is an issue of concern to all disempowered groups whether native, gays and lesbians, women, etc..  I do not mean to imply that one  oppression is the same as another.  However, oppressions do  share common ground, yet in many ways they are completely different. I believe that I know a great deal about the oppression faced by gays.  Consequently, to study the law as it  affects another disempowered group whose treatment and social situation  often offends my sense of justice is a welcome  opportunity.  26  Typically those who belong to a group which has suffered historic  exclusion,  or to use Justice Wilson's  term  from  Andrews v. Law Society of British Columbia - those who are members of "discreet and insular minorities," power,  27  - have less  and suffer from systematic mistreatment ranging from  violence through economic disadvantage to ostracism.  This  mistreatment is institutionalized in the laws and social mores of the society. of  mistreatment  With respect to native-Canadians the evidence is  overwhelming.  The  challenges  faced  by  aboriginal Canadians and the disparity between native and non-  My interest in the law and aboriginal people derives from growing up in a small town in rural Saskatchewan located in close proximity to three Cree Indian reserves, as well as work experience as a Policy Analyst at the Department of Indian and Northern Affairs. (1989), 56 D.L.R. (4th) 1, p. 33.  15 native  living  injustice.  conditions  cannot  but  strike  one's  sense  of  There are approximately 850,000 n a t i v e people  in  Canada, comprised of t h r e e groups: Indian, Metis, and I n u i t , making up about 3 percent of t h e Canadian population.  Report  a f t e r r e p o r t documents t h e systemic racism and b r u t a l  living  conditions which many a b o r i g i n a l Canadians endure.  Regarding  the criminal j u s t i c e system t h e h o r r o r s faced by Donald Marshall and Helen Betty Osborne, as documented in t h e Marshall Report 28 and  the  Manitoba  Aboriginal  Inquiry 2 9  respectively,  conclusive evidence of t h e d i s c r i m i n a t i o n n a t i v e s face. i s a l s o a chorus of appalling s t a t i s t i c s : 3 0  are There  l i f e expectancy of  native males i s 10-12 years l e s s than non-Native Canadian males; n a t i v e females i t i s l i f e expectancy i s 10-16 years l e s s than non-Native females.  31  Violence, a c c i d e n t s and poisoning a r e  t h e major causes of death for n a t i v e s .  Deaths r e s u l t i n g from  t h e s e causes occur a t t h r e e times t h e r a t e for Canadians as a whole. 32  I n c a r c e r a t i o n r a t e s show a s i m i l a r p a t t e r n .  Native  Chief J u s t i c e T. Alexander Hickman, A . C . J . L. P o i t r a s , e t a l . , Royal Commission on t h e Donald M a r s h a l l , J r . P r o s e c u t i o n : D i g e s t of F i n d i n g s and Recommendations ( L i e u t e n a n t Governor of Nova S c o t i a , 1989). 29 A s s o c i a t e Chief J u s t i c e A.C. Hamilton and A s s o c i a t e Chief J u s t i c e S.M. S i n c l a i r , Report of t h e A b o r i g i n a l J u s t i c e I n q u i r y of Manitoba (Province of Manitoba, 1 9 9 1 ) . 30  For a s i m i l a r d i s c u s s i o n s e e : Macklem, P a t r i c k . " F i r s t Nation S e l f Government and t h e Borders of t h e Canadian Legal I m a g i n a t i o n " (1991) 36 McGill Law J o u r n a l 382. S i g g n e r , A . J . , "The Socio-Demographic C o n d i t i o n s of R e g i s t e r e d I n d i a n s " i n J . R . P o i n t i n g ( e d . ) Arduous J o u r n e y : Canadian I n d i a n s and D e c o l o n i z a t i o n ( T o r o n t o : McClelland and Steward, 1986), p . 57. 32  Ibid.  16 people account for 10% of the population of federal prisons, yet they comprise approximately 3% of the Canadian population.  The  number of native people in federal prisons doubled between 1977 and 1987.  33  Housing standards and unemployment rates are  equally disturbing. According to a 1988 study by the Department of Indian and Northern Affairs, 47% of on-reserve housing fails to meet basic standards of physical conditions, and 38% of reserve housing lacks basic amenities such as running water, indoor toilets and/or bathing facilities.  34  The official  unemployment rate among natives is two and a half times the national rate.  Only 19% of the Native population has attained  some sort of post-secondary education, compared to 36% of other Canadians.35  Two out of three status Indians use English as  their home language and numerous native languages are on the edge of extinction. 36 The legal sphere has been a site of many successes for native people, not  however, the grim reality is that the law has  significantly  situation.  contributed  to  improving  their  social  Legal decisions have served to initiate political  33  Correctional Services Canada,Native Population Profile Report (Ottawa: Management Information Services, 1987). Also see Michael Jackson, "Locking Up Natives in Canada" (1989) 23 U.B.C. Law Review 215. 34 Basic Departmental Data (Ottawa: Indian and Northern Affairs, 1988). For further discussion of the social conditions confronting many aboriginal Canadians see: J.R. Pointing, ed. Arduous Journey: Canadian Indians and Colonization (Toronto: McClelland and Steward, 1986); L. Krotz, Indian Country: Inside Another Canada (Toronto: McClelland and Steward, 1990). 36  Siggner, p. 57.  You Took My Talk Fourth Report of the Standing Committee on Aboriginal Affairs (House of Commons, December 1990) .  17 and constitutional change, yet, current jurisprudence, like the emerging  doctrine  of  Crown  fiduciary  duties,  may  prove  inadequate to the task of improving the lives of native people. Often the law's effect on Native people offends my sense of justice.  That  said,  frequently,  case  law strikes me  as  reasonable, that is, it accords with the worldview and legal mindset in which I have been trained.  Initially my reaction to  Sparrow was to applaud its progress and fair nature. Not until a Mohawk friend expressed her discontent with the fiduciary concept did I start to consider the negative aspects of the doctrine. 37 Mary Eaton has written that "if material conditions of inequality are entrenched in the sense that they are rendered invisible by the forces of history, tradition and habit in the ways of the mind" then conditions of inequality will never be alleviated until "they are recognized as manifestations of institutions and social forces with a life beyond individual actors."38  Following Eaton's exhortation, the goal of this  project is to investigate the history, tradition and habit which informs  the  fiduciary  concept.  It  is  not  a  question  of  developing tighter or more refined analyses in order to make 37  Conversation with Laurel Johnson, mother, Queen's Law Student.  38  Mary Eaton, "Case Comment: Andrews v. Law Society of British Columbia" (1991) 4 Canadian Journal of Women and the Law 276, at 286. For a discussion of the struggle for individual rights in law which falsely offers freedom, egaulity and justice to the underclasses see: Crenshaw, Kimberle. "Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law" (1988) 101 Harvard Law Review 1331.  18 current concepts work. I am not approaching t h i s r e s e a r c h with the idea t h a t b e t t e r l e g a l t e s t s can be developed t o balance competing r i g h t s or t o b e t t e r define a b o r i g i n a l r i g h t s and Crown responsibilities.  Rather,  I am i n t e r e s t e d  in t h e  fiduciary  concept because I am i n t e r e s t e d i n t h e r e l a t i o n s h i p power and t h e law;  between  how law i s an ideology and a d i s c o u r s e t h a t  serves some i n t e r e s t s more than o t h e r s ; 3 9  how the law works as  an i n s t i t u t i o n t o a t times empower but a l s o t o exclude and disempower.  In studying t h e f i d u c i a r y r e l a t i o n s h i p I hope t o  shed l i g h t on the following q u e s t i o n s : law in p r o g r e s s i v e p o l i t i c s ?  What i s the r o l e of t h e  Can the law be harnessed and  mobilized t o t h e advantage of subordinate groups?  Are l e g a l  i n s t i t u t i o n s c r u c i a l t e r r a i n on which s i g n i f i c a n t s o c i a l change can take place?  If so, how? If not, why not?  The d i s t i n c t i o n between d i s c o u r s e and i d e o l o g y i s not always c l e a r . Sometimes t h e c o n c e p t s a r e used i n t e r c h a n g e a b l y and a t o t h e r t i m e s t h e y a r e c o u n t e r p o s e d . In a forthcoming a r t i c l e Trevor P u r v i s and Alan Hunt e x p l o r e t h e o v e r l a p and t h e d i s t i n c t c h a r a c t e r i s t i c s of d i s c o u r s e and i d e o l o g y . T h e i r c o n c l u s i o n i s t h a t t h e t h e o r y of i d e o l o g y s t a n d s a l o n g s i d e and supplements d i s c o u r s e t h e o r y r a t h e r t h a n being opposed t o d i s c o u r s e t h e o r y . In t h e i r words " i d e o l o g y f i g u r e s i n i n q u i r i e s which a r e concerned t o i d e n t i f y t h e way i n which forms of c o n s c i o u s n e s s c o n d i t i o n t h e way i n which p e o p l e become c o n s c i o u s of t h e i r c o n f l i c t i n g i n t e r e s t s and s t r u g g l e over them." On t h e o t h e r hand " d i s c o u r s e focuses a t t e n t i o n on t h e terms of engagement with s o c i a l r e l a t i o n s by i n s i s t i n g t h a t a l l s o c i a l r e l a t i o n s a r e l i v e d and comprehended by t h e i r p a r t i c i p a n t s i n t e r m s of s p e c i f i c l i n g u i s t i c o r s e m i o t i c v e h i c l e s which o r g a n i s e t h e i r thinking, understanding and e x p e r i e n c i n g . " See: Hunt and P u r v i s , "Discourse, Ideology, Discourse I d e o l o g y , D i s c o u r s e , I d e o l o g y . . . " (Forthcoming, On f i l e w i t h P r o f e s s o r Marlee K l i n e , U n i v e r s i t y of B r i t i s h Columbia F a c u l t y of Law); Also see Diane McDonnell, T h e o r i e s of D i s c o u r s e : An I n t r o d u c t i o n (Oxford: B a s i l Blackwell, 1986).  19 (ii)  LIBERALISM AND ITS CRITICS  (Liberal Ideology)  When t h e f i e l d of study i s Canadian law, s p e c i f i c a l l y t h e law  as  applied  understand  to  the  underpinnings  aboriginal  general  of  the  peoples,  philosophical  legal  system.  it  is  helpful  and  to  ideological  The h e r i t a g e  of  legal  thought i n r e l a t i o n t o r i g h t s , r e s p o n s i b i l i t i e s and the j u d i c i a l system in which we p r e s e n t l y operate has been labeled by many as "liberal  40  legalism."  When l i b e r a l i s m i s linked t o  discourse a number of b a s i c p r i n c i p l e s a r e implied. significant neutrality.  of 41  these  are  equality,  individual  legal  The most  rights,  and  The l i b e r a l model of s o c i e t y i s a p l u r a l i s t one  where i n t e r e s t groups attempt t o r e a l i s e t h e i r goals under t h e auspices of a n e u t r a l s t a t e intended t o i n t e r f e r e as l i t t l e as p o s s i b l e . Judges are " n e u t r a l a r b i t e r s " who f a c i l i t a t e market freedom  and  individual  protection  through  a  value-free-  adjudication p r o c e s s . Much  of  the  responsibilities liberal  theorists  basis  in  for  thinking  about  rights  and  law today comes t o us from white male  who i n t e r p r e t  and expand upon t h e  W i l l Kymlicka, L i b e r a l i s m , Community and C u l t u r e (Oxford: Press, 1989),p. 23.  great  Clarendon  41 . For a d i s c u s s i o n of t h e t e n e t s of l i b e r a l i s m s e e : Dworkin, Ronald. " L i b e r a l i s m " i n M. Michael ( e d . ) L i b e r a l i s m and i t s C r i t i c s (Oxford: B a s i l B l a c k w e l l , 1984); Dworkin Ronald. " N e u t r a l i t y , E q u a l i t y and L i b e r a l i s m " i n D. Maclean and C. M i l l s ( e d s . ) L i b e r a l i s m Reconsidered (Ottawa: Rowman and A l l a n h e a d , 1983); Galloway, D o n a l d . " C r i t i c a l M i s t a k e s " i n R. Devlin ( e d . ) Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery P u b l i c a t i o n s , 1991), p . 255.  20 liberal thinkers of the nineteenth century. 42  John Rawls, one  of the most well-known contemporary exponents of liberalism asserted that the liberal version of the social contract was about justice, fairness and individual rights, all peculiarly abstract principles.  43  According to Rawls, the foundation of  liberalism is found in the view that there must be no arbitrary distinctions between individuals because we are rational human beings capable  of  identifying  and working  toward  our  own  interests, and because each individual has "his [sic] own aims, interests, and conceptions of the good."  44  Thus, liberalism  emphasizes the importance of respecting each other's liberty to pursue his or her own interests.  When interests collide  liberals agree that an individual's right to do as he or she pleases should be circumscribed by commonly agreed to principles of justice interpreted by "objective and neutral" arbiters. Liberals also hold the idea in common that the self is an independent entity unconnected to community and enjoys freedom of choice. The only constraint on choice is the principle of respect for another's capacity to choose. With this paradigm it becomes difficult to speak of group needs and interests.  As a  consequence communities seem to have little relevance to the  For example: Classics, 1947).  John Stuart Mill, On Liberty  43  (New York : Crofts  John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971. Also see Matsuda, "Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls Theory of Justice,"(1986) 16 New Mexico Law Review 613. Rawls, pp. 76-79.  21 liberal's  version  independent,  of  individuality.  "decontextualized"  self  This  concept  functions  to  of  an  suppress  acknowledgement of the profound differences between individuals based on their situation within groups; it also ignores the profound difference between groups.  As Razack points out,  "Without a theory of difference, we cannot make clear what the relationship is between groups and communities."45  Liberalism  also inhibits our understanding of power as something other than the power of one individual to assert his or her claim over another.  The concept of competition between individuals makes  it difficult to explain oppression, that is, the consistent dominance of the claims of one group over another. Matsuda  points  out  liberal  theorists  abstraction as a methodology.46  like  Rawls  As Mari choose  The development of highly  generalized theories of the state reify the idealized version of law (neutrality, objectivity, equality) and obscure the complex experience of oppressions. For example individuals can only be equal in law if the differences which distinguish them abstracted away.  are  Consequently, highly abstracted theories of  justce and law, like Rawles* version of liberalism, fail to take into account the real oppression of groups, like First Nations,  Sherene Razack. Canadian Feminism and the Law: The Women's Legal Education Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991), p. 15. Matsuda, p. 618.  22 who have experienced a history of discrimination.47 It should be noted that there are proponents who argue that there are advantages to staying within the paradigm of liberal legalism. Galloway has argued that adding women or native groups or other minority groups to the liberal legal structure leads to a radically posits  that  transformed  system.48  individualism  irreconcilable.  and  Similarly Will Kymlicka communal  values  are  not  For Kymlicka liberalism can be interpreted to  support community values because community and culture are the preconditions of free and meaningful choices.49  Other scholars  have argued that staying within the system allows progressives to speak to the system in a language it understands. Elizabeth Schneider comments on the empowering nature of the liberal individual rights tradition for minority groups who have had few victories in their claims for justice.50  Robert Williams makes  a similar point when he advises minority groups to "take rights aggressively" and to use them as primitive weapons loaded with  For a similar argument in relation to the abandonment of abstractions both in law and in theory in order to become more grounded in the world of women's experiences of oppression see: Lahey, Kathleen. ...Until Women Themselves Have Told Us All There Is To Tell " (1985) 23 Osqoode Hall L.J. 519.  See Galloway, Don. "Critical Mistakes" in R. Devlin, (ed.) Canadian Perspectives on Legal Theory (Toronto: Edition Motgomery Publiations, 1991), p. 25. 49  Kymlicka, Will. Liberalism, Community and Culture (Oxford: Clarendon Press, 1989), p. 144. 60  Elizabeth Schneider, "The Dialectics of Rights and Politics: Perspectives from the Women's Movement,"(1986) New York University Law Review 599.  23 myths until they "perfect new weapons out of the materials at hand."51 Liberalism is the cultural context in which the discussion of native rights takes place. By identifying and understanding this contemporary intellectual and philosophic environment it is possible to sensitize oneself to worldviews and differences which are not  compatible with dominant  liberal paradigms.  Moreover it is possible to understand why liberal legalism is resistant to progressive change. Liberal legalism has provided an idealized version of law and the state. objective  and  neutral  economics, and culture.  and  separate  Law is depicted as  and  above  politics,  To expose the forces which inform and  influence the fiduciary concept it is necessary to dig beneath the idealized  liberal model  and  recognize  the  social and  political content of law.  51 Robert Williams, "Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Colour," (1987) 5 Law and Inequality 130.  24 (iii) THE POSTMODERN RESPONSE  From the perspective of many groups and minorities, i.e. those who because of sex, race, ethnicity or sexual orientation, have  not  previously  benefitted  from  law's  power,  the  introduction of postmodern principles into legal theory has been an  empowering  development.  Law  rests  on  the  myth  of  objectivity based on man's inherent rationalism. The postmodern view of law is directly contrary to liberal legalism.  Focusing  on a postmodern perspective of law as discourse means exposing law as an arbitrary value and knowledge creating institution. Law tells us what is legitimate and illegitimate behaviour, what is criminal and legal, what is natural and unnatural and what is rational and irrational.  The postmodern influence provokes us  to ask, "From whose perspective?" Generally I understand Postmodernism to mean that as a society  we  have moved  beyond  the modernism  of the early  twentieth century; beyond the intellectual projects of grand theorists like Marx, and Freud, and beyond the acceptance of objective and neutral sources of knowledge.  It is a revolt  against the power of unstated reference points and a rejection of the pretence that the particular is universal. Postmodernism recognizes that all perceptions of reality are a construct contingent  upon history, time, geography,  and position in  structures of hierarchy. As J.C. Smith points out postmodernism has developed out of several intellectual movements that "have  25 challenged a perceived objective reality," feminism,  cognitive  theory  and  including "Marxism,  psychoanalyses."  52  Practitioners of Postmodernism challenge us to abandon the linear  rationality,  and  objectivity  characterized  by  Enlightenment thinking and embrace the difficulties of placing ourselves  in  a world  of multiple  and  equally  legitimate  perspectives. A bibliographic list of the sources of Postmodernism would be wide  and varied  and  include  characters  Nietzsche, Rorty, and Wittgenstein.  as diverse  as  Two philosophers often  cited for their influence on the development of postmodern thought are Lyotard and Foucault. The work of Lyotard has been especially influential in developing  postmodern  critiques  of  knowledge.  53  In  The  Postmodern Condition: A Report on Knowledge Lyotard investigates both the control of information in the Western world and the collapse of legitimizing forces in Western culture. He describes the "modern" account of knowledge as making "an explicit appeal to some grand narrative." For him the over-arching philosophies of history and science are "meta-narratives of legitimation" which from the postmodern perspective should be viewed with incredulity.  Lyotard argues that any discourse which posits a  52  Smith, J.C. "Psychoanalytic Jurisprudence and the Limit of Traditional Legal Theory" in R. Devlin, ed. Canadian Perspectives in Legal Theory (Toronto: Edmon Motgomery Publications, 1991) 223, at 243.  J.F. Lyotard. The Postmodern Condition; A Report (Minneapolis: University of Minnesota Press, 1984).  on Knowledge  26 universality of the human condition must be suspect. Second among the leading Postmoderns, Foucault has become a cult figure to students and intellectuals.  His analysis of  power and power as knowledge has become a shibboleth for entry into some progressive circles.  Foucault, who died in June of  1984, was also known for his outspoken opinions on gay rights, making no secret of his own sexual orientation. Foucault argues that  history  must  not  be  regarded  from  an  essentialist  perspective, but by directly examining how people actually construct and express their daily lives.  54  He often applied  this analysis to the position of homosexuals in society: If gay people are to truly know themselves they must examine and rely on their own potential, in short create themselves, rather than insist on conforming to the socially constructed role of the homosexual, a consciousness that has primarily been defined by others.55 Foucault argues that gays and lesbians should not embrace a social identity that was largely created from the sexual mores of the late nineteenth century, but rather they should pursue "relationships  of  differentiation,  of  creation  innovation...an identity of our unique selves." 56  ,  of  His message  Foucault, Michel. The Archaeology of Knowledge (London: Travistoc,, 1972); Power/Knowledge; Selected Interviews and Other Writings) Colin Gordon (ed.) (New York: Pantheon Books, 1977). 56  "Sex and the Politics of Identity: An Interview with Michel Foucault" in Mark Thompson, ed. Gay Spirit: Myth and Meaning (New York: St. Martin's Press, 1987) p. 25. Ibid., p. 31.  27 is inspiring for any marginalized group. He urges the excluded and oppressed to identify the sites of power in their every day lives and to resist.  Resistance is advanced through the  deconstruction of dominant meaning and bringing into awareness suppressed  alternate meanings which  are subversive to  the  established order.  POSTMODERNISM AND THE LAW  Postmodernism has been imported into legal scholarship via Critical Legal Studies and, especially, via Feminist Legal Theory.57  Its presence is felt in two significant ways.  The  first is in relation to the concern with text; the second is in relation to reconceptualizing the epistemological underpinnings of legal theory. Postmodern preoccupation with textual analysis is most apparent in the "doctrinal deconstruction" techniques most often associated with Critical Legal scholars.  In order to discover  the contingent character of the law the "Crits" unpack legal doctrine (eg. an appellate judgment) to reveal both its internal inconsistencies  and  its  external  inconsistencies.  Internal  inconsistencies are exposed by revealing the often illogical and incoherent  nature  of  judicial  reasoning.  External  The influences of a range of critical traditions including American legal realism, sociological discourses on law and marxist theories on law should also be mentioned. See: HuntHunt, "The Big Fear: Law Confronts PostModernism" (1990) 35 McGill Law Journal 507, at 522.  28 inconsistencies are revealed by exposing the politics imbedded within legal doctrine. As political choices are uncovered, the result is to show how the law privileges certain perspectives over others.58 Hunt makes the point well: The product of the deconstructivist critique is to mount a challenge to the legitimacy of the project of law as a means of generating distinctively legal truth. ...The radical inflection of the postmodern intervention exposes the tensions, closures, and contradictions in judicial texts which are linked to the wider dynamics of power and dominant interests. 59  Notwithstanding Postmodernism*s influence in relation to textual deconstruction, it is in the area of epistemology that it offers its most significant and most subversive insights. By focusing on diversity and minority voices, Postmoderns demand that we see the world differently.  They require that we  recognize the "partial" nature of our knowledge:  "partial"  meaning both the incompleteness of knowing and the bias inherent in it.  Clare Dalton makes the point this way:  It is not simply a matter of filling, finally, some previously identified and oddly persistent gap in one's understanding. It involves recognizing that the entire perceptual and conceptual apparatus one has previously relied on for knowledge about the world may be faulty. It involves remaking the map of the world For a review of the Critical Legal Studies Movement see: Allan Hutchinson, "Crits and Cricket: A Deconstructive Spin (Or was It a Googly?) in Richard Devlin, ed. Introduction to Jurisprudence. (Toronto:Carswell, 1991). p. 181; J.M. Balkin, "Deconstructive Practice and Legal Theory" (1987) 96 Yale L.J. 743. Mark Kelman, "Trashing" (1984) 36 Stanford Law Review 293.  69  Alan Hunt, "The Big Fear: Law Confronts Postmodernism" (1990) 35 McGill Law Journal 507, at 513.  29  one c a r r i e s about i n o n e ' s head so t h a t t h e gaps appear, generating t h e r e c o g n i t i o n t h a t they need t o be f i l l e d . And since i t i s in r e l a t i o n t o t h i s i n t e r i o r map t h a t one l o c a t e s and i d e n t i f i e s oneself, i t involved being ready t o meet some unfamiliar and sometimes unwelcome images of oneself. 6 0  The  conseguences  of  reconstituting  knowledge  means  that  academics and judges w i l l have t o consider more e x p l i c i t l y t h e implications of minority p e r s p e c t i v e s and c u l t u r a l d i f f e r e n c e in their  work.  Within  legal  academia  Postmodernism  has  f a c i l i t a t e d t h e development of new schools of theory such as C r i t i c a l Race Studies, 6 1 and a burgeoning i n t e r e s t in gay and lesbian l e g a l i s s u e s .  62  Within t h e c o u r t s Postmodernism has  C l a r e D a l t o n , "The F a i t h f u l L i b e r a l and t h e Question of D i v e r s i t y " (1989) 12 Harvard Women's Law J o u r n a l 1, a t p . 2 . 61  In t h e United S t a t e s C r i t i c a l Race Theory o r C r i t i c a l Race S c h o l a r s h i p i s t h e l a t e s t m a n i f e s t a t i o n of p o s t m o d e r n i s t p l u r a l i s m a s s e r t i n g i t s e l f i n l e g a l s c h o l a r s h i p . CRT refe^T ' * *R ' ork of p r o g r e s s i v e l e g a l s c h o l a r s of c o l o u r who a r e a t t e m p t i n g t o develop a j u r i s p r u d e n c e t h a t a c c o u n t s f o r t h e r o l e of r a c i s m i n American law. These s c h o l a r s argue t h a t some members of m a r g i n a l i z e d groups by v i r t u e of t h e i r m a r g i n a l s t a t u s , a r e a b l e t o t e l l s t o r i e s d i f f e r e n t from t h e ones l e g a l s c h o l a r s u s u a l l y h e a r , and t h e r e b y r e v e a l t h i n g s about t h e world t h a t we ought t o know. See: Patricia W i l l i a m s , " Alchemical N o t e s : R e c o n s t r u c t i n g I d e a l s from D e c o n s t r u c t e d R i g h t s " (1987) 22 Harvard C i v i l R i g h t s and C i v i l L i b e r t i e s Law Review 401;R. Delgado, "When a S t o r y i s J u s t a S t o r y : Does Voice R e a l l y M a t t e r " 76 V i r g i n i a Law Review 95 ( 1 9 9 0 ) . In Canada an e q u i v a l e n t i s t h e burgeoning s c h o l a r s h i p from F i r s t Nation academics. See: P a t r i c i a Monture, "Ka-Nin-Geh-Heh-Gah-E-SaNonh-Yay-Gah" (1986) 2(1) Canadian J o u r n a l of Women and t h e Law 159.Mary E l l e n T u r p e l l , " A b o r i g i n a l Peoples and t h e Canadian C h a r t e r I n t e r p r e t i v e Monopolies, C u l t u r a l D i f f e r e n c e s " (1989/90) 6 Canadian Human R i g h t s Yearbook 3.  As more and more gay and l e s b i a n academics d e c i d e t h e r e i s no power o r f o r c e p e r s u a s i v e enough t o keep them s i l e n t , i n v i s i b l e and m a r g i n a l i s e d , t h o s e who p r e v i o u s l y s u b l i m a t e d t h e i r i n t e l l e c t u a l t a l e n t s i n t o o t h e r p u r s u i t s ( o f t e n i n t h e human r i g h t s f i e l d ) w i l l t u r n t h e i r a t t e n t i o n towards gay and l e s b i a n l e g a l i s s u e s . I t may l e a d t o t h e c r e a t i o n of a new form of l e g a l s c h o l a r s h i p : "homophile l a w ( ? ) . " I t w i l l i n v o l v e t h e study of how law p e r p e t u a t e s h e t e r o s e x i s t p r i v i l e g e , and I b e l i e v e , i t w i l l owe i t s g e n e s i s t o t h e i n f l u e n c e of Postmodernism. Cynthia P e t e r s o n , " A Queer Response t o  30  led  to  the  introduction  alternative  experience,  of ideas  legal and  arguments world  reflecting  views  and  the  p r e s e n t a t i o n of t h e o r e t i c a l arguments as t o why t h e t r a d i t i o n a l l e g a l conceptual s t r u c t u r e should be r e i n t e r p r e t e d so as t o have some coherency with previously excluded experience and r e l a t e d ideas.  An obvious example i s l i t i g a t i o n surrounding n a t i v e land  claims wherein t h e world view of p a r t i c u l a r F i r s t Nations 63  advanced. litigation  The c o n t r i b u t i o n of Feminists t o  constitutional  64  A postmodern  should a l s o not be overlooked.  jurisprudence  seeks  to  introduce  " a l t e r n a t i v e " experiences. arising  is  from  particular  into  the  legal  Postmodernism r e v e a l s locations  u n i v e r s a l i z i n g tendency of a l e g a l  thereby  discourse resistance  replacing  system law t h a t  the  i s more  comfortable with fixed i d e n t i t i e s . Michel Foucault has provided important a n a l y t i c a l t o o l s for i n t e r e s t groups working for s o c i a l change.  His work on t h e  h i s t o r i c a l contingency of homosexuality i s of s p e c i f i c i n t e r e s t Bashing: L e g i s l a t i n g Against Hate" (1991) 16(2) Queen's Law J o u r n a l 237; Adrienne Rich, "Compulsory H e t e r o s e x u a l i t y and Lesbian E x i s t e n c e " Signs 5:4 (1980) 6 3 1 ; Kinsman, Gary, The R e g u l a t i o n of D e s i r e : S e x u a l i t y i n Canada ) M o n t r e a l : Black Rose Books, 1987); Barbara F i n d l a y , "With A l l of Who We Are: A D i s c u s s i o n of Oppression and Dominance" (Vancouver: P r e s s Gang P u b l i s h e r s , 1 9 9 1 ) . D i d i Herman,"Are We Family: Lesbian R i g h t s and Women's L i b e r a t i o n " (1990) 38 Qsqoode H a l l Law J o u r n a l 789. 63  S e e : Delgamuukw e t a l . v . A t t o r n e y General of B r i t i s h Columbia , [ 1 9 9 1 ] , 3 W.W.R. 97 ( B . C . S . C ) ; and e s p e c i a l l y t h e opening a d d r e s s of t h e G i t ' k s a n h e r e d i t a r y c h i e f s r e p r i n t e d i n [1988] 1 Canadian N a t i v e Law R e p o r t e r 185. The l i t i g a t i o n group, Women's Legal E d u c a t i o n A c t i o n Fund (LEAF) has advanced t h e i r f e m i n i s t world view i n many c a s e s b e f o r e t h e Supreme Court of Canada. E s p e c i a l l y n o t a b l e i s t h e i n f l u e n c e LEAF had on t h e Supreme C o u r t ' s i n t e r p r e t a t i o n of s . 1 5 e q u a l i t y g u a r a n t e e s . See: Law S o c i e t y of B r i t i s h Columbia v . Andrews, [1989] 2 W.W.R. 289 ( S . C . C . ) .  31 to  gay  and  lesbian  communities.  65  His  work  on  the  interrelationship of discourse, power and knowledge is of value to all marginalized groups.  66  Concerning the latter, his  analysis provides tools for the deconstruction of ideologies and language that inform disciplines which have contributed to social inequality. According to Foucault discourse profoundly affects the creation of meaning.  Discourse is the simultaneous  operation of power and knowledge and when we deconstruct certain knowledge systems we expose specific rules which have influenced how we ordered our knowledge and experience of the world. Foucault instructs that it is important to focus on the deepest levels of where meaning  is produced  (i.e., the matrix of  language, discourse and institutions) in order to reveal the rules that operate to suppress certain aspects of experience and highlight others. Foucault argued for the de-centering of this kind of power; for him nothing in society would change unless the mechanisms of power which function concomitantly with state power are also changed. Foucault did not understand power to be uniformly coercive. Rather his starting point is at the "microlevel" of the individual rather than the "macro-level" of social structures. insidious  67  Foucault described these power systems as an  force  which  reaches  "into  the  66  See: Michel Foucault, The History of Sexuality Pantheon Books, 1978). 66  very  grain  of  Vol. 1 (New York:  See: Michel Foucault, Power/Knowledge, Colin Gordon (ed.) (New York: Pantheon Books, 1980). 67  Michel Foucault Power/Knowledge pp. 109-133.  32 individuals, touches their bodies and inserts itself into their actions and attitudes, their discourses, learning processes and everyday lives." ^ One of the most important lessons to be derived from reading Foucault is that knowledge and power are socially created and therefore can be socially transformed.  In short his  analysis explains why respected sources of knowledge make some belief systems invincible and others invisible.  For example,  Law is one of the ways society "designs itself and presents the world to itself."69  Since law is connected to state power and  in its idealized form is cloaked in pretensions of neutrality and objectivity, it is an especially authoritative producer of "truth."70 law"  71  Foucault refers to the "discursive  formation of  meaning that law puts into place a set of values which  are absorbed into and perpetuated by popular culture. what  law  deems  to  be  right  and  wrong,  Thus,  legitimate  or  illegitimate, relevant or irrelevant, tend to become normative, unquestioned standards of the way things should be. Foucault's analyses of power as discourses advocates the deconstruction of such controlling systems designated as truth or knowledge. His 68  Foucault, Power and Knowledge, p. 39.  69  Allan Hutchinson, "Telling Tales (Or Putting the Plural in Pluralism)" (1985) Osgoode Hall Law Journal 681. Hutchinson exposes law as a terrain where the "struggle for meaning" occurs. 70  For a discussion of the "idealized model of law" and its attributes see David Kairys (ed.) The Politics of Law; A Progressive Critique (revised edition) (New York: Pantheon Books, 1990), 1. 71 Michel Foucault, Politics, Philosophy, Culture; Interviews and Other Writings (1977-1984)ed.) (New York: Routledge, 1988), p. 96.  33 prescription for change is to lobby for "an insurrection of subjugated knowledges."72 With  the  advent  of  Guerin  and  Sparrow  fiduciary  relationships have been added to the legal discourse surrounding aboriginal law.  Generally "fiduciary" is a notion steeped in  ideas of hierarchy and dependence. By deconstructing prevailing discourse the postmodern approach is useful in determining whether or not the fiduciary concept has any future as an instrument for native empowerment.  72  Foucault, Power and Knowledge, pp. 81/82.  34 (iii)  FEMINISM AND POSTMODERNISM  The final influence on this work is that of Feminist Legal Studies, and especially the work of "Postmodern Feminists." ^ Much  of  feminist  presuppositions. perceived  as  jurisprudence  74  Generally,  responsible  for  reflects  the  the  feminist  postmodern project  deconstruction  of  is male  conceptions of reality and patriarchal ideology by emphasizing women's experience of being situated in a subordinate position in a set of However,  by  social no  relations  means  is  the  based  on  project  sexual hierarchy. known  as  feminism  See: Jane Flax. "Postmodernism and Gender Relations in Feminist Theory: in Fraser and Nicholson (eds.) Postmodernism/Feminism (London: Routledge, 1990), p. 39. 74  In early writings by feminist scholars there is no mention of "Foucauldian epistemologies: or "Derridean deconstruction." However concepts like "hegemonical discourses of power," "the insurrection of subjugated knowledges," and "textual hermeneutics," all taken from the French postmodern philosophers, are consonant with the approach of some feminists. It is also consonant with a lot of the work produced by Critical Legal Studies adherents. Complicated questions surround the origins of any labelled intellectual movement. Cross-fertilization between and amongst schools of thought always occur. Which came first Postmodernism or Feminism? Is a good deal of Feminism postmodernist, or is a good deal of Postmodernism feminist? If so, how much? Did the Postmodernists name what the Feminists were doing, or did the Feminists adopt the Postmodernist's agenda? (Some Feminists might ask why it took French male philosophers to make their methodologies legitimate?) Does Postmodernism supplement or supplant related strands of legal theory? To what extent have the movements influenced each other? Some academics have attempted to unpack the relationship and permeability of related progressive perspectives. See: Duncan Kennedy, "Critical Theory, Structuralism, and Contemporary Legal Scholarship" (19851986) 21 New England Law Review 209; Carrie Menkel-Meadow, "Feminist Legal Theory, Critical Legal Studies and Legal Education, or "The Fem-Crits Go to Law School" (1988) 38 Journal of Legal Education 61. Although that is a valid exercise, for the purposes of my studies I do not want to be preoccupied with the imperfection of taxonomy. Labels are flawed conceptual tools, but to dwell on issues of overlap and influence would be paralysing. I acknowledge that there are no rigid lines of demarcation among related theoretical approaches, and that many intellectual traditions have contributed to the insights of feminists and postmodernists.  35 monolithic.  A v a r i e t y of feminist approaches e x i s t  including  l i b e r a l f e m i n i s t s , s o c i a l i s t f e m i n i s t s , r a d i c a l feminists postmodern  75  feminists.  In  developing  their  and  theories  Feminists look t o and v a l i d a t e t h e experience of women.  Where  t h e dominant view of t h i n g s does not a l i g n with female r e a l i t y , Feminists disregard the norms and attempt t o c r e a t e explanations that f i t  their  lives.  However had Feminism ended i n  the  imposition of a new unifying theory, as in t h e work of r a d i c a l feminists l i k e Catherine MacKinnon  76  , then i t no longer could  be c a l l e d postmodern in i t s approach. One of t h e aspects of feminist l e g a l theory i s t h e p r o j e c t of naming and exposing t h e world as man-made.  The feminist  l e g a l scholar Ann Scales w r i t e s t h a t men have had t h e power t o organize r e a l i t y , "to c r e a t e the world from t h e i r own point of view, and then, by a t r u l y remarkable p h i l o s o p h i c a l were  able  to  elevate  "objective r e a l i t y . "  77  that  point  of  view  into  conjure, so-called  The idea of t h e male norm has been  S e e : Sheehy, E l i z a b e t h , Boyd, S u s a n . , Canadian F e m i n i s t P e r s p e c t i v e s on Law; An Annotated B i b l i o g r a p h y of I n t e r d i s c i p l i n a r y W r i t i n g s (Special P u b l i c a t i o n of Resources for F e m i n i s t R e s e a r c h , 1989). C. MacKinnon, Feminism Unmodified: D i s c o u r s e s on L i f e and Law (Cambridge: Harvard U n i v e r s i t y P r e s s , 1987). For Mackinnon s e x u a l i t y and gender r e l a t i o n s a r e what c o n s t r u c t s male power. For h e r feminism i s a t h e o r y of how t h e " e r o t i c i z a t i o n of power d i f f e r e n c e c r e a t e s male and female i n t h e s o c i a l form t h e y e x i s t . " Anne S c a l e s , "Towards a F e m i n i s t J u r i s p r u d e n c e " (1980-81) 56 Indiana Law J o u r n a l 375, a t 378.  36 78  considered in many law review a r t i c l e s . work  on  the  subjectivity  of  criminal  For example in her law  Christine  Boyle  attempts t o expose the n o n - n e u t r a l i t y of law by exposing and c r i t i c i z i n g l e g a l s c h o l a r s h i p as embodying "a male p e r s p e c t i v e on  the  world  masquerading  as  an  objective  non-gendered  p e r s p e c t i v e . "79 Only r e c e n t l y have some f e m i n i s t s s t a r t e d t o confront t h e privilege  reflected  in  universalizing  feminist  O r i g i n a l l y Feminists asked t h e "gender q u e s t i o n : "  theories.  How does law  take i n t o account, or not take i n t o account, t h e experience of women?  80  In so doing they learned a l o t about how oppression  works i d e n t i f y i n g t h e complex p a t t e r n s of sexism, i n s t i t u t i o n a l and  systemic  discrimination,  and t h e  important  distinction  between e q u a l i t y of treatment and treatment as an equal. 8 1 However, t h e r e were women on t h e wings who did not f i t a l l t h e g e n e r a l i z a t i o n s t h a t feminist s c h o l a r s were advancing.  Women of  S e e : M. Minow, "Supreme Court Forward: J u s t i c e Engendered" (1987), 101 Harvard Law Review 10; K. Lahey, " . . . U n t i l Women Themselves Have Told A l l They Have t o T e l l . . . " (1985) 23 Osqoode H a l l Law J o u r n a l 519; J a n e t R i f k i n , "Towards a Theory of Law and P a t r i a r c h y " (1980) 3 Harvard Women's Law J o u r n a l 83. 79 C. Boyle, "Criminal Law and P r o c e d u r e : Who Needs Tenure?" Osqoode H a l l Law J o u r n a l 427 a t 428. 80  See: Katherine B a r t l e t t , Law Review 829. 81  (1985)  "Feminist Legal Methods" (1990) 103 Harvard  S e e : Gwen Brodsky and Shelagh Day, Canadian C h a r t e r E q u a l i t y R i g h t s f o r Women: One Step Forward o r Two S t e p s Back? (Ottawa: Canadian Advisory Council on t h e S t a t u s of Women, 1989); Susan Boyd and E l i z a b e t h Sheehy, " F e m i n i s t P e r s p e c t i v e s on Law: Canadian Theory and P r a c t i c e " (1986) 2 Canadian J o u r n a l of Women and t h e Law 1; E l i z a b e t h Sheehy and Susan Boyd, Canadian F e m i n i s t P e r s p e c t i v e s on Law: An Annotated B i b l i o g r a p h y of I n t e r d i s c i p l i n a r y W r i t i n g s ( S p e c i a l P u b l i c a t i o n of Resources f o r Feminist Research, 1989).  37 colour and lesbian scholars were yelling from the sidelines: "Your theory does not fit my life." 82  It sounded familiar and  some feminists started to take its implications seriously: There are disquieting gaps and silences even in feminist theory. Unless women attempt to read these gaps and silences along with the gaps and silences in male and masculinist theory, future theorists may draw some unhappy conclusions about Feminism: women of colour may decide that all other feminist theory along with masculinist theory - is reducible to an ideology of racist supremacy. 83 It  became  apparent  that  the "woman  question"  had to be  rephrased. Exlusion of alternative perspectives both as subject and author meant that the question only addressed the concerns of white, middle class, heterosexual woman.  The postmodern  sensibility demands that other realms of knowing and experience be integrated into theory.  Bartlett explains the trend as  follows: Feminists working i n t h e law have r e c e n t l y begun c o n v e r t i n g "the woman question" i n t o t h e q u e s t i o n of t h e "excluded" as Euro-american, heterosexuallyi d e n t i f i e d f e m i n i s t s have come t o recognize t h e need t o " f i n e - t u n e Feminism t o encompass t h e breadth and s p e c i f i c i t y of oppression a c t u a l l y experienced by d i f f e r e n t women, - and even some men." 8*  S e e : Audre Lorde, "The M a s t e r ' s Tools Will Never Dismantle t h e M a s t e r ' s House" i n A. Lorde S i s t e r O u t s i d e r (Trumansburg, New York: The C r o s s i n g P r e s s , 1984); b e l l hooks, " t a l k i n g back" and "when I was a young s o l d i e r f o r t h e r e v o l u t i o n : coming t o v o i c e " , i n T a l k i n g Back: t h i n k i n g f e m i n i s t , t h i n k i n g b l a c k (Boston: South End P r e s s , 1 9 8 9 ) . 83  K a t h l e e n Lahey a s quoted i n Marlee K l i n e , " R a c e , Racism and Feminist Legal Theory" (1989) 11 Harvard Women's Law J o u r n a l 1 1 5 , p . 150. 84  Kate B a r t l e t t , "Feminist Legal Methods" 103 (1990) Harvard Law Review 829, p . 8 4 9 . .  38 Consequently,  i s s u e s of c l a s s , a b i l i t y ,  race, ethnicity,  and  sexual o r i e n t a t i o n a r e i n c r e a s i n g l y complicating and e n r i c h i n g the nature of feminist analyses.  85  The movement away from t h e presumed u n i v e r s a l i t y of EuroAmerican,  middle-class,  experience  to  heterosexually  more diverse  identified  and p a r t i c u l a r i z e d  women's  perspectives  affirms t h e complexity and m u l t i p l i c i t y of d i f f e r e n t sources of oppression.  Kathleen  Lahey  exemplifies  the  "Postmodern  Feminists" in her r e j e c t i o n of a homogenous s i s t e r h o o d . rejects shaped  u n i v e r s a l i s a t i o n by arguing t h a t by her  cultural forces.  own personal  history  She  each i n d i v i d u a l  as well  as by  is  general  For her the i n d i v i d u a l i s thus located a t t h e  p o i n t of i n t e r s e c t i o n of a l l personal and c u l t u r a l  influences.  Consequently, Lahey argues t h a t i t i s e s s e n t i a l t h a t  feminist  l e g a l t h e o r i s t s i n c r e a s i n g l y complicate t h e i r analyses paying constant  attention  to  factors  which shape power  relations;  including gender, r a c e , c l a s s and sexual o r i e n t a t i o n .  86  Jane  Flax makes a s i m i l a r claim w r i t i n g t h a t i f postmodern feminists do t h e i r work w e l l , " r e a l i t y w i l l appear even more u n s t a b l e ,  D i d i Herman, " S o c i o l o g i c a l l y Speaking: Law, S e x u a l i t y and S o c i a l Change" (1991) 2(2) The J o u r n a l of Human J u s t i c e 5 7 . ; Marlee K l i n e , "Race, Racism and F e m i n i s t Legal Theory" (1989) 11 Harvard Women's Law J o u r n a l 115; M. Matsuda, "Looking t o t h e Bottom: C r i t i c a l Legal S t u d i e s and Reparations'* (1987) 22 Harvard C i v i l R i g h t s and C i v i l L i b e r t i e s Law Review 3 2 3 ; Kimberle Crenshaw, "Race, Reform and Retrenchment: Transformation and L e g i t i m a t i o n i n A n t i d i s c r i m i n a t i o n Law" (1988) 101 Harvard Law Review 1331. Lahey, K a t h l e e n . On S i l e n c e s , Screams and S c h o l a r s h i p : An I n t r o d u c t i o n t o F e m i n i s t Legal Theory" i n Richard D e v l i n , ed. Canadian P e r s p e c t i v e s on Legal Theory (Toronto: Edmond Montgomery P u b l i c a t i o n s , 1991), p . 319, a t 328.  39 complex, and d i s o r d e r l y than i t does now." 87 Contemporary  feminists  have  been  active  in  developing  analyses i n r e l a t i o n t o t h e "paucity of gains for women a r i s i n g out of t h e p u r s u i t of law reform." aimed a t  improving  the  social  88  They note t h a t law reform  condition  of  women has  the  "paradoxical e f f e c t of r e c o n s t i t u t i n g p a t r i a r c h a l r e l a t i o n s . "  89  A c l e a r analogy t o n a t i v e law can be drawn. No matter what t h e development  in l e g a l  discourse:  usufructuary  rights,  sui  generis a b o r i g i n a l t i t l e , or entrenched c o n s t i t u t i o n a l r i g h t s little  has  changed  in  aboriginal c i t i z e n s .  the  social  conditions  of  Canada's  In examining t h e u t i l i t y of the f i d u c i a r y  concept much can be learned from feminist l e g a l s c h o l a r s who have been f r u s t r a t e d by t h e i r i n a b i l i t y t o p r e d i c t t h e f a i l u r e of reform i n i t i a t i v e s .  For Feminists disappointments have led  t o a r e - e v a l u a t i o n of t h e usefulness of promoting l e g a l change as a method of r e s i s t i n g the oppression of women. feminist s c h o l a r s  Several  have turned t o t h e concept of ideology t o  explain t h e r o l e of law in r e i n f o r c i n g  oppression.  Smart and Boyd have each contributed t o a body of  Gavigan, literature  which attempts t o explain the e l a s t i c capacity of t h e  legal  F l a x , J a n e . "Postmodernism and Gender R e l a t i o n s i n F e m i n i s t Theory" i n F r a s e and Nicholson ( e d s . ) Postmodernism/Feminism (London: R o u t l e d g e , 1991) 39. p . 57. In t h i s s e n s e , Flax q u e r i e s t h a t p e r h a p s Freud was r i g h t when he d e c l a r e d t h a t women a r e t h e enemies of c i v i l i z a t i o n . 88 Carol Smart, "Feminism and Law: Some Problems of A n a l y s i s and S t r a t e g y " (1986) 14 I n t e r n a t i o n a l J o u r n a l of t h e Sociology of Law 109, a t 109. 89  Dawn C u r r i e and Marlee K l i n e , "Challenging P r i v i l e g e : Women, Knowledge and F e m i n i s t S t r u g g l e s " (1991) 2(2) The J o u r n a l of Human J u s t i c e 1, p . 10.  40 system to absorb reforms and reproduce dominant social forms.90 Feminist legal scholars have taken the lead in developing more refined analyses. As Gavigan writes, "if we look for manifest, explicit discrimination or differential treatment in law or in the courtroom, we will miss the subtle processes (which are less visible but even more important) by which legal doctrine, and judicial  interpretation  and  decision  making  reproduce  and  reinforce" subordination." 91 The insights of feminist legal scholars are helpful in evaluating the usefulness of the fiduciary concept as a method of native empowerment. legal  analysis  which  Their work points to the necessity of takes  difference  into  account.  Specifically with regard to analysing the fiduciary concept their work is an exhortation to complicate analyses in order to break patterns of dominance in the realm of ideas, values, culture and theory. It points to the necessity of seeking out native perspectives, being sensitive to exclusion, and sensitive to  assumptions  which  perpetuate  dominance  and  privilege.  Moreover the insights of feminist legal scholars like Gavigan and Boyd in relation to law and ideology point to a need for sharper analytical tools to understand prevailing systems of knowledge and power.  Susan Boyd, "Child Custody, Ideologies and Employment" (1989) 3 Canadian Journal of Women and the Law 111. Shelly Gavigan, "Law, Gender and Ideology" in Anne Bayefsky, (ed.) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988) 283; Carol Smart, Feminism and the Power of Law (London: Routledge, 1989). 1  Gavigan, pp. 293-294.  41 CHAPTER 2 ESTABLISHING THE PARAMETERS OF THE FIDUCIARY RELATIONSHIP  In included further  1982 part  of  provisions  the  package  on aboriginal  constitutional  of  and treaty  conferences  aboriginal participation,  constitutional  amendments  rights.  were planned,  Although  with  subsequent First Minister's  required  Conferences  (FMC's) provided l i t t l e help in clarifying the meaning of s. 35(1). Consequently, the task has been left to the courts.  1  On May 31, 1990 the Supreme Court of Canada handed down i t s decision  in R. v.  Sparrow.2  uncertainty surrounding s.  The decision clears up much of  the  35 of the Constitution Act, 1982.3 On  1 S e c t i o n 37 of t h e C o n s t i t u t i o n A c t , 1982, p r o v i d e d f o r a f i r s t m i n i s t e r ' s c o n f e r e n c e w i t h i n one y e a r , which would i n c l u d e i n t h e agenda an item r e s p e c t i n g c o n s t i t u t i o n a l m a t t e r s t h a t d i r e c t l y a f f e c t t h e a b o r i g i n a l p e o p l e s of Canada, i n c l u d i n g t h e i d e n t i f i c a t i o n and d e f i n i t i o n of t h e r i g h t s of t h o s e p e o p l e t o be i n c l u d e d i n t h e C o n s t i t u t i o n of Canada." S e e : S a n d e r s , Doug. "An U n c e r t a i n P a t h : The A b o r i g i n a l C o n s t i t u t i o n a l Conferences" i n Weiler and E l l i o t , L i t i g a t i n g t h e Values of A N a t i o n : The Canadian C h a r t e r of R i g h t s and Freedoms (Vancouver, C a r s w e l l , 1986), p . 6 3 , a t 64. For f u r t h e r a c c o u n t s of t h e c o n s t i t u t i o n a l h i s t o r y of t h e a b o r i g i n a l r i g h t s p r o v i s i o n s and t h e i r amendments s e e : E. McWhinney, Canada and t h e C o n s t i t u t i o n : 1972-1982 (Toronto: U n i v e r s i t y of Toronto P r e s s , 1 9 8 2 ) ; N. Z l o t k i n , Unfinished B u s i n e s s : A b o r i g i n a l Peoples and t h e 1983 C o n s t i t u t i o n a l Conference (Kingston: I n s t i t u t e of I n t e r g o v e r n m e n t a l R e l a t i o n s , Queen's U n i v e r s i t y , 1983); Romanov, J . Whyte, and H. Leeson, Canada N o t w i t h s t a n d i n g : The Making of t h e C o n s t i t u t i o n 1976-1982 ( T o r o n t o : Methuen, 1984);B. Schwartz, First Principles, Second Thoughts: Aboriginal P e o p l e s , C o n s t i t u t i o n a l Reform and Canadian S t a t e c r a f t (Kingston, I n s t i t u t e of I n t e r g o v e r n m e n t a l R e l a t i o n s , Queen's U n i v e r s i t y , 1986); D. Milne, The Canadian C o n s t i t u t i o n : From P a t r i a t i o n t o Meech Lake (Toronto: Lorimer, 1989). 2  Pw v . S p a r r o w . ,  3  S u b s e c t i o n 35(1) of t h e C o n s t i t u t i o n Act, 1982 r e a d s : S. 35(1)  [1990] 1 S.C.R. 1 0 7 5 .  The e x i s t i n g a b o r i g i n a l and t r e a t y r i g h t s of t h e a b o r i g i n a l p e o p l e s of Canada a r e hereby r e c o g n i z e d and a f f i r m e d .  " R i g h t s of t h e A b o r i g i n a l Peoples of Canada," P a r t I I of t h e C o n s t i t u t i o n Act,  42 t h e other hand, in t h e area of f i d u c i a r y o b l i g a t i o n s , i t c r e a t e s much more. The decision begs t h e q u e s t i o n : "What are t h e l i m i t s of the  fiduciary  peoples?"  relationship  between governments  and  aboriginal  Case law previous t o Sparrow e s t a b l i s h e d t h a t t h e Crown  owed a f i d u c i a r y o b l i g a t i o n t o Native people in a r e a s of r i g h t s r e l a t e d t o surrender.  4  land  What i s new about Sparrow i s t h e  expansion of t h e f i d u c i a r y duty beyond Guerin-like s i t u a t i o n s and i n t o the realm of i n t e r f e r e n c e with c o n s t i t u t i o n a l l y  entrenched  a b o r i g i n a l and t r e a t y r i g h t s . I t i s t h e t h e s i s of t h i s chapter t h a t t h e f i d u c i a r y duty can be f u r t h e r extended t o cover other a s p e c t s of Crown-Aboriginal r e l a t i o n s . A narrow reading of Sparrow confines the r u l i n g t o  fact  s i t u a t i o n s involving i n t e r f e r e n c e with a b o r i g i n a l or t r e a t y r i g h t s . A broad reading i n t e r p r e t s t h e d e c i s i o n as confirmation t h a t t h e e n t i r e r e l a t i o n s h i p between t h e Crown and t h e Indian peoples i s imbued with f i d u c i a r y a s p e c t s .  In Kruqer v. The Queen J u s t i c e  Heald of t h e Federal Court of Appeal posed the question, "What then a r e the parameters of t h e f i d u c i a r y r e l a t i o n s h i p ? " 5  This chapter  1982, being Schedule B of t h e Canada Act 1982 ( U . K . ) , 1982, c . l l . For a spectrum of views on s . 35 s e e : Noel Lyon, "An Essay on C o n s t i t u t i o n a l I n t e r p r e t a t i o n " (1988) Qsqoode H a l l Law Review 9 5 ; W. P e t n e y , "The R i g h t s of t h e A b o r i g i n a l P e o p l e s of Canada i n t h e C o n s t i t u t i o n Act, 1982/ P a r t I I S e c t i o n 3 5 : The S u b s t a n t i v e G u a r a n t e e " (1988) U.B.C. Law Review 314; Doug S a n d e r s , " P r e - e x i s t i n g R i g h t s : The A b o r i g i n a l Peoples of Canada ( S e c t i o n s 25 and 35) i n Beaudoin and Ratushny ( e d s . ) The Canadian C h a r t e r of R i g h t s and Freedoms (2nd e d . , 1989); B r i a n S l a t t e r y , "Understanding A b o r i g i n a l R i g h t s " (1987) 66 Canadian Bar Review 727. 4  Guerin v . R^, [1984] 2 S.C.R. 335.  6  Kruqer v . The Queen 17 D.L.R. (4th) 591 a t 598.  43 attempts to answer that question  by exploring  the fiduciary  conceptual framework as it appears in Sparrow. related case law, history, and the common law.  In addition I intend to indulge in  creative speculation as to where an expanded fiduciary relationship could lead focusing on the area of aboriginal affairs policy development. This Chapter is divided into six sections. Section (i) reviews the content of Sparrow establishing how the decision establishes a framework for an expanded conceptualization of the Crown-Aboriginal  fiduciary  relationship.  Section  (ii)  scans  available literature on the subject of the scope of Crown-Native fiduciary relationship and reveals a spectrum of liberal and restrictive  viewpoints.  Section  (iii) is an an attempt to  understand the sources of the fiduciary concept in the context of Crown-Indian  relations.  backgrounds are surveyed. which  touches  relations.  on  the  Both  the  historical  and  common  law  Section (iv) is a review of case law fiduciary  aspect  of  Crown-Aboriginal  Jurisprudence in the area reveals a tension between  judges willing to expand the fiduciary concept and those who foreclose any attempts at expansive thought.  In section (v)  "aboriginal affairs policy development" is targeted as a specific instance  of  predictions  the Crown-Aboriginal are  made  applicable in the area.  regarding  fiduciary possible  relationship, and  fiduciary  standards  Finally, in section (vi) concerns that  the evocation of a fiduciary duty may immobilize the federal  44  government are addressed.  Considering judicial pronouncements  indicating that the Courts may be prepared to hurl some surprising "curial thunderbolts" 6 it would seem unwise for the government to adopt a policy of inaction.  W.I.C. Binnie, "The Sparrow Doctrine: Beginning of the End or End of the Beginning?" (1990) 15 Queen's Law Journal 217, at 219.  45 (i) R. V. SPARROW  Sparrow is a remarkably broad ranging decision. It contains sweeping passages, historical summaries, puzzling references, and extraneous  comments  that  can partially  be  explained  by  the  historical context in which it was written. It is a unanimous judgment co-authored by Justice LaForest and Chief Justice Dickson. It  was under  deliberation  for  over  eighteen  months.  This  inordinate length of time cannot be fully explained by the backlog of cases or complexity of issues facing the court.  Rather it is  suggested that to obtain unanimity, compromises between liberal minded and less liberal judges were gained through the byzantine and lengthy process of circulating drafts. These compromises were fueled by the internal politics of a bench that was about to experience a drastic change in composition. pronouncement  by  the  Court  on  the  Sparrow is the first important  issue  of  constitutionally entrenched aboriginal rights. It is also the last pronouncement on the law and aboriginal people to come from the Court before the two most progressive judges, Justice Dickson and Justice Wilson, retired. It is suggested that Sparrow is an attempt by those two judges to influence the future of native law in Canada after their departure from the bench. It is an opus magnum,  an  epic judgment. In fashioning their legacy, clarity was sacrificed for scope. As for their ambitions and intentions, only the future will reveal what they have wrought.  46 E s s e n t i a l l y Sparrow i s a f i s h i n g s t o r y .  The Musqueam Indian  Band was issued a f i s h i n g l i c e n c e by t h e f e d e r a l Department of F i s h e r i e s and Oceans t o f i s h for food with d r i f t n e t s up t o 25 fathoms in l e n g t h . Ronald Sparrow, a member of t h e Musqueam Band used a net 45 fathoms long.  He was charged under t h e  federal  F i s h e r i e s Act with f i s h i n g contrary t o the terms of the b a n d ' s licence.  At t r i a l Sparrow argued t h a t pursuant t o s . 35(1) of t h e  Constitution protected  Act t h e Musqueam Indians have a  right  to  fish  for  food  within  constitutionally  their  traditional  t e r r i t o r y . According t o Sparrow, any r e g u l a t i o n s i n c o n s i s t e n t with s e c t i o n 35(1) were rendered of no force and e f f e c t by s e c t i o n 52 of t h e C o n s t i t u t i o n Act, 1982. In t h e i r i n t e r p r e t a t i o n of s. 35 J u s t i c e Dickson and J u s t i c e La F o r e s t , w r i t i n g for the Court, f i r s t pronounce on the e f f e c t of t h e c o n s t i t u t i o n a l recognition and affirmation of a b o r i g i n a l and treaty rights.  In a passage which seems more appropriate t o i s s u e s  r a i s e d in R. v.  Sioui,  7  t h e Court r e f e r s t o an a r t i c l e by  Professor Doug Sanders on t h e i s s u e of t h e enforcement of t r e a t y rights.  8  In Sanders' view t h e incorporation of s .  35 i n t o t h e  C o n s t i t u t i o n gave l e g a l e n f o r c e a b i l i t y t o previously unenforceable 7  [1990] 1 S.C.R. 1025. On May 24, 1990 t h e Supreme Court upheld t h e a c q u i t t a l of Conrad S i o u i who was c o n v i c t e d of v i o l a t i n g Quebec p r o v i n c i a l p a r k r e g u l a t i o n s f o r c u t t i n g s a p l i n g and b u i l d i n g f i r e s f o r a r e l i g i o u s ceremony. In q u a s h i n g t h e c o n v i c t i o n t h e Court r e c o g n i z e d t h a t a document s i g n e d i n 1760 was a v a l i d t r e a t y and gave Hurons t h e r i g h t t o p r a c t i c e t h e i r religion. F u r t h e r m o r e , laws a f f e c t i n g t r e a t y r i g h t s cannot be developed w i t h o u t a b o r i g i n a l consent. 8 Doug S a n d e r s , " P r e - E x i s i t i n g R i g h t s : The A b o r i g i n a l Peoples of Canada" i n Beaudoin and Ratushny, e d s . The Canadian C h a r t e r of Right and Freedoms, 2nd e d . , p . 730.  treaty promises. The Court also cites a passage from an article by Professor Noel Lyon in which Lyon writes that s. 35: renounces the old rules of the game under which the Crown established Courts of law and denied those Courts the authority to question sovereign claims made by the Crown.9 Presumably  this passage  is a reference  to the  unquestioned  sovereignty of Parliament prior to 1982. Both authors are cited, with apparent approval, to establish that s. 35 has provided aboriginals with some form of remedy to protect constitutionally entrenched rights. After  emphasizing  the  importance  of  constitutional  "recognition and affirmation," the Court develops an analysis to determine when government interference with aboriginal rights is permissable.  If federal or provincial governments want to pass  laws that impinge on native rights they must justify their actions by balancing federal objectives against federal responsibilities: There is no explicit language in the provision that authorizes this Court or any court to assess the legitimacy of any government legislation that restricts aboriginal rights. Yet, we find that the words "recognition and affirmation" incorporate the fiduciary relationship referred to earlier and so import some restraint on the exercise of sovereign power. 10 By locating the source of restraint on legislative power in the  Noel Lyon, "An Essay on Constitutional Interpretation" (1988) 26 Osqoode Hall L.J. 95, at p. 100. 10  Sparrow, p. 1109.  48 Crown-Aboriginal fiduciary relationship the Court signals future possibilities for the fiduciary concept. 11 In the specific situation of regulatory interference with fishing rights governments are not left to speculate as to the present content of their fiduciary obligations. The Court details a three stage analysis as guidelines to proper fiduciary actions. First, the legislation or action must be related to a valid legislative objective.  In the area of fisheries the Court cites  allocation management and conservation as legitimate reasons for impinging on aboriginal rights. must be taken into account.  Second, the honour of the Crown This is described as an elastic  requirement which can be tailored to accommodate different types of non-aboriginal interests which will be weighed against aboriginal and treaty rights.  The third and final part of the analysis  incorporates a series of questions to be addressed including: -Is there minimal interference with the right? -Has fair compensation been paid if expropriation occurs? -Has there been consultation with the aboriginal group in question with respect to the measures to be implemented? The list, according to the Court, is not exhaustive but rather will vary with the factors of each case. 12 Most  significant  about Sparrow is that the category of  11  From a critical perspective the Court's beneficence is doubtful. First the passage signals that s. 35 rights can be restricted. Second by using fiduciary language to restrain s. 35 rights the Court attempts to make the bestowment of power on the federal government appear like a necessary and good development. 12  Ibid., pp. 1111-1119.  49 fiduciary  obligations  has  been  extended  into  s.  35  of  the  Constitution Act thereby creating two explicit situations where the Crown has fiduciary obligations towards aboriginal peoples.  The  first situation arises as a result of Guerin affecting the Crown's handling of reserve land, and by analogy other Indian assets.13 If a second situation has been created out of the fiduciary concept then Sparrow implicitly supports the principle that the categories of Crown fiduciary obligations towards natives are not closed. By grounding its analysis in a fiduciary framework the Court has provided future aboriginal litigants or negotiators with a powerful, if not unwieldily, legal tool.  Peter Burns argues  that, if the government does not negotiate fairly, the fiduciary obligations outlined in Sparrow provide the Courts with a club to award substantial rights to Indians.  u  Sparrow is an indication  that the Courts are indeed willing to expand the government's fiduciary obligations towards aboriginal peoples.  The boundaries  of this expansion, of course, remain to be seen.  13 14  Guerin v. R. [1984] 2 S.C.R. 335.  Globe and Mail, September 11, 1991. For Professor Burns" comments regarding the fiduciary duties recognized by McEachern J. in the Delgamuukw decision see "Delgamuukw v. B.C.: A Summary of the Judgment," conference paper: Delgamuukw and the Aboriginal Land Question: Victoria B.C., Sept. 10, 1991.  50 (ii) FIDUCIARY DISCOURSE  On September 25, 1990 Prime Minister Mulroney outlined the Canadian government's agenda to "preserve the special place of first citizens in this country." The "Native Agenda" committed the government to progress on what was referred to as "four pillars": (i) land claims, (ii) economic and social conditions on reserves, (iii) the relationship between aboriginal peoples governments, and (iv) the concerns of Canada's aboriginal peoples in contemporary Canadian life." 15  and  Finally the federal government appeared to be serious about addressing the grievances and concerns of native people.  Two  theories as to the reasons for this dramatic response appear probable. A cynic  might  interpret  the  federal  government's  "Four  P i l l a r s " programme as a contrived response t o t h e "Oka C r i s i s " and  an  attempt  uprisings.  through  symbolic  rhetoric  to  "Real p o l i t i q u e " adherents would a g r e e .  quell  16  further  Alternatively,  t h e government's a c t i o n s can be i n t e r p r e t e d as an attempt t o f u l f i l  Globe and Mail, September 26,1990. For a d e t a i l e d e x p l a n a t i o n of t h e " N a t i v e Agenda" s e e I n d i a n and Northern A f f a i r s , I n f o r m a t i o n Sheet No. 3 3 , March 1991. 16 In the summer of 1990 a vigil aimed at blocking expansion of a local golf course on land claimed by the Mohawks of the Kanesatake community near the town of Oka erupted into violence when it was raided by provincial police. Armed Mohawks repelled the attack and kept police and Canadian Forces soldiers at bay for the next 77 days before surrendering. See:"The Summer of 1990" Fifth Report of the Standing Committee on Aboriginal Affairs" (House of Commons, May 1991).p. 31.  51 long standing fiduciary obligations to native people, thereby avoiding further Sparrow-like judicial pronouncements. The "Summer of 1990" not only gave the government a clear indication of the level of discontent felt by First Nations, it also provided the federal Crown with an opportunity to reflect on recent Supreme Court decisions.  The message was clear: the courts had carefully  noted the governments fiduciary obligations and indicated that they were willing to be activists in the area.  Unless the government  started to produce on aboriginal policies it was foreseeable that the  courts would  use  fiduciary  duties  as  a base  to  award  substantial rights to Indians. What follows is a survey of the discourse which surrounds the topic of the potential of the fiduciary concept.  Numerous and  varied visions of the scope of the fiduciary obligations have appeared. Naysayers and dreamers are equally represented. conversation of extremes with everything in between.  It is a  In linking  the Crown's fiduciary responsibilities to the sui generis concept the Court created an atmosphere where conservatives and liberals could interpret the term from the extreme polarity of "anything goes" to the avoidance tactic of "nothing goes." When Sparrow was handed down the reaction of some aboriginal people bordered on the ecstatic. George Erasmus pronounced that it was "an extremely major victory", and that Native people had "won big."  17  17  Chief Conrad Sioui commenting on his victory in Sioui  Globe and Mail June 1, 1990.  52 coupled with Sparrow declared that the decisions had expansive consequences including giving natives the power "to block the transfer of powers from the federal government to provinces."  18  A survey of the Minutes of the Standing Committee on Aboriginal Affairs indicates that First Nations perceive Sparrow as a weighty bargaining chip capable of strengthening their position in all arenas of Crown-Aboriginal interaction. land  claims, land  19  management, provision  From their perspective of  services, policy  development and constitutional issues all fall under the fiduciary rubric.  Metaphorically, the Court gave First Nations a club to  threaten government, and to threaten Department of Indian and Northern Development  20  bureaucrats whenever they are perceived to  be unhelpful, intransigent or adversarial. In contrast, government officials view the repercussions of Sparrow from a different perspective. A campaign has been mounted to counter the message that the Crown's fiduciary obligations extend beyond the Sparrow fact situation.  It is an exercise in  damage control. Michael Hudson, Senior Counsel for DIAND, wrote in a  paper entitled  "Fiduciary Obligations of the Crown Toward  Aboriginal Peoples" that "there is nothing in the Sparrow judgment to suggest that all of the Crown's dealings, regardless of their  18  Globe and Mail, June 4, 1990.  19 "Minutes of Proceedings and Evidence of the Standing Committee on Aboriginal Affairs Considering the Events at Kanesatake and Kahnawake during the Summer of 1990" Issue 47, pp. 30-33. Issue 49. pp. 47,98. Issue 58, pp. 36-52. Hereinafter referred to as DIAND.  53 nature, are impressed with fiduciary obligations."  21  Similarly,  Robert Edwards, a British Columbian Provincial Attorney General representative, has written that the provincial Crown's fiduciary obligations do not go beyond issues of "land and resource use which may affect aboriginal sustenance practices." 22 A further example of the government's restrictive position is evident in the Federal Court case of Luke v. Canada  23  where the  Kootenay Band of British Columbia sought a declaration that the Crown breached its fiduciary obligations to the band in respect of two land surrenders. Although not a s . 35 case the Crown referred to Sparrow and advanced the following argument: ...the fiduciary obligations owed to the Indians do not float above in the air. They must be grounded in dependency. They only exist where the Indians cannot by statute, act for themselves. The obligations only crystallize when the Crown is imposed. 24 Justice Dube found for the band and accepted the crystallization argument holding that the Crown's obligation had "crystallized" and thus Crown duties were not met. The result is to characterize the fiduciary obligation as something that is turned on and off by triggering events, rather than to see it as a constant presence  21 Michael Hudson, "Fiduciary Obligations of the Crown Towards Aboriginal Peoples" (Conference Paper: "Delqamuukw and the Aboriginal Land Question" Victoria, British Columbia: Sept. 10,11, 1991) 22  Robert Edwards, "Fiduciary Duties and the Delgamuukw Decision" (Conference Paper: "Delqamuukw and the Aboriginal Land Question" Victoria, British Columbia: Sept. 10,11, 1991). 23  (1991) 42 F.T.R. 241. Ibid., p. 281.  54 with protean qualities to fit differing circumstances. fiduciary  obligation  vulnerability  is  an  is  akin  to  issue, then  private  law  dependency  is  If the  duties a  where  necessary  ingredient. However, aboriginal and treaty rights exist irrelevant to any dependency; Sparrow prescribes that fiduciary duties are present nonetheless.  In Luke Justice Dube refers to Sparrow even  though the case does not involve s. 35 rights and then concludes that dependency is a prerequisite to the presence of fiduciary obligations. By not acknowledging that alternative forms of the fiduciary relationship exist Dube, J. has cast a multi-dimensional concept in one-dimensional terms. The divergence of opinion between government and First Nations was starkly exposed during the Parliamentary hearings into the "Summer of 1990 - The Oka Crisis." The issue of the nature and scope of the Crown-Aboriginal fiduciary relationship often became the subject of testimony before and inquiries by the Committee.25 Many aboriginal advocates suggested that as a result of the 1763 Royal Proclamation and, as confirmed by Sparrowf  all dealings  between Indian people and the Crown are clothed with a fiduciary aspect.  26  However when Tom Siddon, the Minister of Indian  Affairs, was questioned about the extent of the Crown's fiduciary obligations  he  responded  that  the  fiduciary  obligation  only  "Minutes of Proceedings and Evidence of the Standing Committee on Aboriginal Affairs Considering the Events at Kanesatake and Kahnawake during the Summer of 1990" Issue 47, pp. 30-33. Issue 49. pp. 47,98. Issue 58, pp. 36-52. See testimony of Professor Errol Mendes, Issue 58, pp. 28-56.  55 attached to issues of Indian land management.  27  The tension between these competing views is not likely to diminish. Committee  In its final report on the Oka Crisis, the Standing on Aboriginal Affairs  surrounding  the  subject  of  acknowledged  the  the  Crown-Aboriginal  controversy fiduciary  relationship recommending that the subject-matters of a Royal Commission  on  Aboriginal  Peoples  include  "the  fiduciary  responsibility of the federal government to First Nations."  28  Similarly, Brian Dickson, the former Chief Justice of the Supreme Court  of  Canada, who was  appointed  to make  recommendations  regarding the mandate of the Royal Commission, proposed that the "relationship among aboriginal peoples, Canadian government, and Canadian society" become an area of study.  29  It is inevitable  that during the anticipated three and one-half years of hearings expected to be held by the recently appointed Royal Commission on Aboriginal Peoples the controversial issue of the nature and scope of the Crown-Aboriginal fiduciary relationships will be at the forefront of discussions. It is not a new idea that the fiduciary relationship exists when the Crown is engaged in an aspect of Indian affairs other than dealing with Indian lands. After the Supreme Court's decision in 27  Ibid., Issue 47, pp. 18-22.  28 "The Summer of 1990" Fifth Report of the Standing Committee on Aboriginal Affairs" (House of Commons, May 1991).p. 31 29 For a review of the Royal Commission's terms of reference see the Appendix to the Commission's first published report: "The Rights of Aboriginal Self-Government and the Constitution: A Commentary(Ottawa: February 13, 1992).  56 Guerin, s e v e r a l a r t i c l e s appeared advocating t h e t h e s i s t h a t t h e Crown owes f i d u c i a r y  o b l i g a t i o n s t o Indian people outside  the  s p e c i f i c s i t u a t i o n of surrender.  30  authors should f e e l v i n d i c a t e d .  Moreover, t h e analyses developed  As a r e s u l t of Sparrow t h e s e  by t h e s e authors in r e l a t i o n t o Guerin i s even more a p p l i c a b l e i n a post Sparrow l e g a l world. "Indians  and  the  31  Fiduciary  In Concept,  a  co-authored  Self-Government  article, and  the  C o n s t i t u t i o n : Guerin in Perspective" McMurty and P r a t t wrote t h a t "the  fiduciary  concept described  in Guerin could be  expanded  through a l o g i c a l a n a l y s i s of i t s foundations i n t o a coherent l e g a l and p o l i t i c a l theory for viewing t h e Crown-Indian r e l a t i o n s h i p .  32  Now t h e a r t i c l e can be amended t o read t h a t t h e f i d u c i a r y concept in Guerin and Sparrow provide t h e foundation for t h e a n a l y s i s . Regarding t h e scope of t h e Crown's o b l i g a t i o n s McMurty and P r a t t contend t h a t t h e Crown's f i d u c i a r y r e s p o n s i b i l i t i e s should be viewed on a spectrum as a range of d i f f e r e n t o b l i g a t i o n s depending upon t h e r e l a t i v e s o p h i s t i c a t i o n of t h e p a r t i e s and t r a n s a c t i o n s S e e : W.R. McMurty and A. P r a t t , " I n d i a n s and t h e F i d u c i a r y Concept, Self-Government and t h e C o n s t i t u t i o n : Guerin i n P e r s p e c t i v e " (1986) 3 Canadian N a t i v e Law R e p o r t e r 19; J . Hurley, "The Crown's F i d u c i a r y Duty and I n d i a n T i t l e : Guerin v . The Queen" (1985) 30 McGill Law J o u r n a l 559, Darlene J o h n s t o n , "A Theory of Crown T r u s t Towards A b o r i g i n a l P e o p l e s " (1986) 12 Ottawa Law Review 307; and Donovan Waters, "The I n d i a n Peoples and t h e Crown" paper p r e s e n t e d a t The I n t e r n a t i o n a l Symposium of T r u s t , E q u i t y and F i d u c i a r y R e l a t i o n s h i p s , U n i v e r s i t y of V i c t o r i a , V i c t o r i a , B r i t i s h Columbia, February 14-17, 1988. For f u r t h e r commentary on a b o r i g i n a l p e o p l e and f i d u c i a r y o b l i g a t i o n s s e e : R.H. B a r t l e t t , "You C a n ' t T r u s t t h e Crown: The F i d u c i a r y O b l i g a t i o n of t h e Crown t o t h e I n d i a n s : Guerin v. The Queen" (1984-84) 49 Sask. L. Rev. 367; R. H. B a r t l e t t , "The F i d u c i a r y O b l i g a t i o n of t h e Crown t o I n d i a n s " (1989) 53 Sask. L. Rev. 3 0 1 ; B r i a n S l a t t e r y , " F i r s t N a t i o n s and t h e C o n s t i t u t i o n : A Q u e s t i o n of T r u s t " 71 Canadian Bar Review 2 6 1 . McMurty and P r a t t e , a t 39.  57 involved: There can, in other words, be no single model of the fiduciary relationship between the Indian people and the Crown. There can however, be a general theory of shifting emphasis along a continuum between the extremes of agency and trust, with presumptions to guide courts or negotiators as to the appropriate model in a given set of facts. 33 According to their theory the amorphous nature of the fiduciary relationship is not a constant applicable to limited and defined situations, but rather encompasses numerous obligations which apply to different First Nations in a varying manner.  It is a protean  entity readily assuming different shapes and features depending on the degree of experience and sophistication of the Band involved. Like Pratt and McMurty, John Hurley argues that the fiduciary obligation is not limited to situations of surrender. Hurley views the historical foundations of the fiduciary obligation as the source of the Crown's broad responsibilities. In his view the Crown has an historic duty to act in the "best interests" of Indian people and cites the Indian Act as an example of the Crown attempting to fulfil its obligations.  34  Given the colonial  mindset of the legislation and the misery often attributed to it, it is questionable whether or not legislators have been concerned about the best interests of native people.  Nonetheless, the fact  that the Indian Act has pervaded almost every aspect of the lives  33 34  Ibid, p. 40.  John Hurley. "The Crown's Fiduciary Duty and Indian Title: Guerin v. The Queen" (1985) 30 McGill Law Journal 559, at 586.  58 of aboriginal people for over 120 years illustrates the historic depth and intricacies of the Crown-Aboriginal relationship. Perhaps  the most generous  interpretation  of the Crown-  Aboriginal fiduciary relationship is found in the work of Bradford Morse.  Morse sees rich possibilities flowing from the fiduciary  obligation beginning with a more "pro-active obligation on the Government of Canada to deal with native concerns."  3S  In a  prescient moment Morse foresaw the result of Sparrow when he wrote that as a result of s. 35 the fiduciary relationship was entrenched in the Constitution. This is exactly where Sparrow places it. Regarding justiciable rights Morse speculates whether unreasonable delay because of the failure of government to expeditiously negotiate specific and comprehensive land claims would lead to a claim for breach of fiduciary duty. He also questions whether the obligation could extend to include a duty to legislate.  Morse  concludes his argument with the observation that although his propositions may seem unorthodox, it would be unwise to preclude such possibilities given the radical change that has occurred in Canada's "constitutional world" since 1982. 36 Professor Errol Mendes also sees the fiduciary relationship placing a more pro-active obligation on the Government of Canada to  See: Bradford Morse, "Government Obligations, Aboriginal Peoples and Section 91(24)" in D. Hawkes (ed.) Aboriginal Peoples and Government Responsibility; Exploring Federal and Provincial Roles (Ottawa: Carleton University Press, 1989), pp. 80-82.  Morse,p. 88.  59 deal with native concerns. In Mendes opinion the government has an obligation to preserve any land that is subject to aboriginal territorial claims. In his testimony before the Standing Committee on Aboriginal Affairs Mendes linked the fiduciary obligation to the events at Oka and Kahnawake, Quebec. Referring to the armed stand off between Mohawk warriors and the Canadian Armed Forced over the proposed development of allegedly sacred aboriginal cites Professor Mendes stated: At minimum, the fiduciary relationship between the Government of Canada and the Mohawks demands that in such situations the government take preservation measure to ensure that sacred grounds such as the Pines at Oka are not destroyed or developed pending judicial or some other settlement of the land dispute. ^ Basing his analysis on the special trust relationship created by history, treaties and legislation, Professor Mendes argued that the federal Crown failed to respect its fiduciary obligations when it failed to step into the controversy at the first signs of serious trouble and block any development plans until the territorial claims were settled. Countering the bold assertions of Morse and Mendes are the comments of Bryan Schwartz.  Schwartz  sees little room for  expansion of the Crown's fiduciary obligations.  He precludes the  fiduciary concept from ever providing Indian groups with any claims  Minutes of Proceedings and Evidence of the Standing Committee on Aboriginal Affairs Considering the Events at Kanesatake and Kahnawake during the Summer of 1990" Issue 47, p. 33.  60 for s e r v i c e s or s o c i a l welfare programs explaining t h a t  the " t r u s t  r e s p o n s i b i l i t y " does not provide a "court enforceable r i g h t federal support." asserted  38  to  However in h i s view an e q u a l i t y claim may be  t o ensure t h a t  members of  Indian communities  roughly t h e same l e v e l of p u b l i c s e r v i c e s .  obtain  Schwartz denies a  j u s t i c i a b l e r i g h t t o s o c i a l s e r v i c e s under t h e f i d u c i a r y banner and places  unrealistic  expectations  on s .  15 of  the  Charter.  39  Perhaps in combining t h e f i d u c i a r y and e q u a l i t y concepts a Court would f e e l b e t t e r positioned t o extend already recognized programs t o F i r s t Nations lacking them. Three authors have put f o r t h t h e view t h a t t h e federal t r u s t r o l e i s t o affirm and strengthen " a b o r i g i n a l i t y " or "Indianess." 4 0 In  the  opinion  of  Ian  Scott,  David Hawkes and Alan Maslove  a b o r i g i n a l peoples r e q u i r e programs and s e r v i c e s t o preserve and strengthen t h e i r ways of l i f e ,  c u l t u r e and economic v i a b i l i t y .  D e t e r i o r a t i o n and disappearance of a b o r i g i n a l languages emphasizes  Bryan S c h w a r t z , . F i r s t P r i n c i p l e s - Second Thoughts , p . 439. 39  In S c h a c h t e r , [ S . C . J . No. 68, J u l y 9, 1992] t h e Supreme Court r e c e n t l y d e c i d e d t h a t t h e r e i s a l i m i t e d power for judges t o extend government programs t o excluded groups where t h e r e i s a c l e a r v i o l a t i o n of c o n s t i t u t i o n a l r i g h t s . However t h e Court warned t h a t judges should h e s i t a t e t o s u b s t i t u t e t h e i r views f o r t h o s e of e l e c t e d l e g i s l a t o r s a s t o who d e s e r v e s s o c i a l b e n e f i t s . The Court imposed e l a b o r a t e l i m i t i n g g u i d e l i n e s t o a s s i s t j u d g e s i n choosing a p p r o p r i a t e r e m e d i e s . E x t e n s i o n of b e n e f i t s , s t r i k i n g down l e g i s l a t i o n , o r g i v i n g l e g i s l a t o r s t i m e t o b r i n g laws i n t o l i n e a r e a v a i l a b l e t o t h e c o u r t s i n d i f f e r e n t circumstances. 40 S e e : David Hawkes and A l l a n Maslove, " F i s c a l Arrangements f o r A b o r i g i n a l Self-Government " p . 9 3 , and Ian S c o t t " R e s p e c t i v e Roles and R e s p o n s i b i l i t i e s of F e d e r a l and P r o v i n c i a l Governments Regarding t h e A b o r i g i n a l Peoples of Canada", p . 3 5 1 . . i n A b o r i g i n a l P e o p l e s and Government R e s p o n s i b i l i t y ; E x p l o r i n g F e d e r a l and P r o v i n c i a l Roles (Ottawa: C a r l e t o n U n i v e r s i t y P r e s s , 1 9 8 9 ) .  61 the necessity for governments to assume responsibilities in the area of aboriginal culture. 41  The existence of government funded  cultural centers on some reserves indicates that DIAND recognizes the importance of the issue.  42  However, not all First Nations  have been provided with such facilities and little information is available regarding the criteria needed to qualify for cultural centre programming.  According to the Standing Committee on  Aboriginal Affairs areas of prime concern are those bands where language and culture is at risk of disappearing.43  In  a recent  article Brian Slattery puts forth the view that the entrenchment of the trust relationship in s. 35 of the Constitution affords protection to aboriginal languages and cultures. 44  41  See:"You Took My Talk" Fourth Report of the Standing Committee on Aboriginal Affairs (House of Commons, December 1990). 42  The Indian Cultural/Educational Centres are funded and administered by the Housing and Social Services Sector of DIAND. They are developed and managed by Native People and focus on activities and programs that emphasize Native selfawareness regarding language, culture and heritage. See DIAND Information sheet, No. 27, 1990. 43  Supra, fn 41.  44 Brian Slattery, "First Nations and the Constitution: A Question of Trust" 71 Canadian Bar Review 261, p. 272. Also see Slattery, "Aboriginal Language Rights" in D. Schneiderman (ed.) Language and the State (Edmonton: Center for Constitutional Studies, 1989), p. 369.  62 t,  (iii)  COMMON LAW AND HISTORY AS FIDUCIARY REFERENCE POINTS  If Indian peoples1 advocates are correct in asserting that all dealings between Natives and the Crown are clothed with a fiduciary aspect, and that the Sparrow decision, like the Guerin. decision, is only a particularization of a general fiduciary relationship, it is then evident that a considerable number of questions remain unanswered. The most obvious concerns centre around the standards that the fiduciary relationship import into Crown-First Nation relations situation?  in  situations  beyond  Guerin-like  or  Sparrow-like  Common law and history tend to provide valuable  reference points to help determine appropriate standards. By using fiduciary language to characterize the relationship between the Crown and native people the Court has given future litigants a frame of reference in which to operate. In situations akin to Guerin litigants know that duties similar to those imposed on private law trusties will be operating, i.e., the highest possible standards. Away from that situation ensurable standards are, at best, tenuous.  In order to draft persuasive pleadings a  litigant will have to be familiar with both the Common Law surrounding fiduciary duties as well as the historical background of Crown-First Nation interactions.  63 (a) The Traditional Legal View  The common law does not offer easy and discernable answers as to what  exactly  a  fiduciary  involves.  In Lac Mineral  v.  International Corona Resources Justice La Forest undertook a comprehensive review of the fiduciary concept. He highlighted its elusive nature stating that there are few legal concepts less conceptually certain: Indeed, the term fiduciary has been described as "one of the most ill-defined, if not altogether misleading terms in our law." It has been said that the fiduciary relationship is a "concept in search of a principle." Some have suggested that the principle governing fiduciary obligations may indeed by undefinable, while other have doubted whether there can be any "universal, all purpose definition of the fiduciary relationship." 45 (Citations omitted) Given the ambiguity that surrounds the fiduciary concept, turning to the common law for guidance may prove futile. Given such a daunting task, firm conceptual foundations must be laid. The word originates in Latin and according to The Oxford English Dictionary refers to situations of "trust or trustee(ship). Black's Law Dictionary defines the fiduciary relation in three contexts: 1. An expression, including both technical fiduciary relations and those informal relations which exist whenever one man [sic] trusts and relies upon another. 2. It exists where there is special confidence reposed in one who in equity and good  61 D.L.R. (4th) 14 (S.C.C.) at 26.  64 conscience is bound to act in good faith and with due regard to the interest of the one reposing the confidence. 3. A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or state of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. 46 Examples of typical fiduciary relationships include those existing between a trustee and a beneficiary of a trust, an agent and principal, a direct of a company and the company, and a lawyer and client. Academics have expended much effort in attempting to elucidate the fiduciary concept.  R.M. Gaureau characterizes the  fiduciary relationship as: ... a concept springing from an undertaking that arises from contract or a duty of care relationship. Its scope is not uniform or defined; it varies according to the nature of the undertaking like contractual duties or tort duties, only more elevated. The relationship arises out of reliance and vulnerability when one is acting in the interests of another. 47 Members of the Supreme Court of Canada have also frequently given their views.  In Guerin Dickson J. stated that a fiduciary  obligation arises when the relative legal positions are such that the interests of one party are by agreement dealt with at the other  46  Black's Law Dictionary (5th ed.) (St. Paul: West Publishing Co., 1979),  564. 47  R.M. Gaureau, "Demystifying the Fiduciary Mystique" (1989) 68 Canadian Bar Review 1, p. 20. Also see Ernest Weinrib, "The Fiduciary Obligation" (1975) 25 U.T.L.J. 1; J.C. Shepherd, "Towards a Unified Concept of Fiduciary Relationships" (1981) 97 L.O.R. 51; Mark Ellis, Fiduciary Duties in Canada (Don Mills: Richard De Boo, 1988).  65 party's discretion: ...where by statue, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to a fiduciary's strict standard of conduct. 4* Other, more recent Supreme Court pronouncements elaborate on the theory of fiduciary responsibility. Wilson J. in Frame. v. Smith and Smith  49  set out three common characteristics as a "rough and  ready" guide to determining whether or not a fiduciary relationship exists: Relations in which a fiduciary obligation have been imposed seem to possess three general characteristics: (i) The fiduciary has scope for the exercise of some discretion or power. (ii) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests. (iii) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. 50 Interestingly Frame did not involve either native or commercial interests. Rather the issue raised was whether a custodial parent is a fiduciary to a non-custodial parent with regard to visitation and access rights. Justice Wilson's set of criteria should not be seen as crucial for expanding fiduciary obligations into new  Guerin v. Rj_, [1984] 2 S.C.R. 335. Frame v. Smith and Smith, [1987] 2 S.C.R. 99. Ibid., p. 136.  66 territory.  Dependency was not present in Sparrow, yet the Court  saw fit to imbue fiduciary standards around  constitutionally  entrenched aboriginal rights. International Coronal Resources Ltd.51  Lac Minerals Ltd. v.  is the Supreme Court's most recent pronouncement on the law of fiduciary obligations. Both Sopinka J. and La Forest J. adopt the characteristics enumerated by Wilson J. recognizing fiduciary relationships. nature  of  the  concept,  Justice  in Frame as a guide to Emphasizing the elastic  Sopinka  adds  the  following  qualification: It is possible for a fiduciary relationship to be found although not all of these characteristics are present, nor will the presence of these ingredients invariably identify the existence of a fiduciary. 52 By enforcing a duty beyond black letter law to uphold moral and fair  dealings,  the  relationships. contemplating  case  The the  extends  case  serious  the  concept  involved  two  negotiation  of  of  fiduciary  mining  companies  a  joint  venture.  Foreseeing the possibility of a partnership agreement Corona had revealed confidential information which prompted Lac Mineral to purchase gold mining property that Corona was developing itself.  interested in  Two members of the Court found that a deal  made on a handshake between parties in accordance with mining industry standards was sufficient to establish a fiduciary relation  61  Supra., fn 45.  52  Ibid. , p.599.  67 since  it  created  vulnerability."53  a Lac  relationship Mineral  of  supports  "dependency an  and  expansive  interpretation of the Crown-Aboriginal fiduciary relationship. Expansion of the common law of fiduciary duties into the area of private sector dealings encourages thinking in the aboriginal community that the Crown's obligations towards them should be no less. Since moral obligations may now be enforced by fiduciary remedies, analogously weak instances of Crown-Indian relationships should be treated in a similar way.  61 D.L.R. (4th) 14, at 63,64.  68 (b) Historical Background  Historical instances have often been cited by the Courts as an enlightening source of the Crown's fiduciary responsibilities towards Native peoples.  Guerin is premised on the notion that  Crown obligations can be traced back to the history of British colonial policy.  54  In R^. v. Taylor and Williams  Justice  MacKinnon saw the responsibility of government to protect the rights of Indians as arising from  the special trust relations  created by "history, treaty, and legislation." Sparrow  the  Court  stated  that  the  55  "historic  Likewise, in powers  and  responsibilities" assumed by the Crown constituted one of the sources of the fiduciary obligation.  56  These references confirm  that the special nature of the Crown-Aboriginal relationship cannot be isolated to specific sections of the Indian Act, or the Constitution.  Furthermore, it is not something that the courts  created by judicial fiat. 57 When Europeans first came to the shores of North America the continent  was occupied  by a  large number  of sovereign and  independent Aboriginal peoples with their own territories, laws and  b4  Guerin v. R^ [1984] 2 S.C.R. 335.  66  R. v. Taylor and Williams 34 O.R. (2d) 260 (Ont.C.A.) at 264.  66  Sparrow at 1108.  67 On the historical basis of the relationship see Guerin pp. 383-384, 348349. Sparrow, pp. 1107-1108; and Mitchell v. Pequis Indian Band, [1990] 2 S.C.R. 85, pp. 108-109, 129-131.  69 forms of government. 58  These nations entered into relations with  incoming European nations on a basis of equality and mutual respect. During treaty negotiations in 1873, the Ojibway spokesman Mawedopenais described the positions of the Crown and aboriginal peoples as follows: We think it a great thing to meet you here. What we have heard yesterday, and as you represented yourself, you said the Queen sent you here, the way we understood you as a representative of the Queen. All this is our property where you have come...This is what we think, that the Great Spirit has planted us on this ground where we are, as you were where you came from. We think where we are is our property. I will tell you what he said to us when he planted us here; the rules that we should follow - us Indians - He has given us rules that we should follow to govern us rightly. 59 France and Great Britain's dealings with aboriginal peoples on a nation to nation basis is well documented. As the Supreme Court observed in Sioui: The mother countries (Great Britain and France) did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. When these efforts met with success, they were incorporated in treaties of alliance or neutrality. This clearly indicates that the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations. The papers of Sir William Johnson. . . who was in charge of Indian affairs in British North America, demonstrate the recognition by Great Britain  58  For a historical overview of the period see: Ronald Wright. Stolen Continents: The New World Through Indian Eyes Since 1492 (Toronto: Viking, 1991); and Thomas Berger, A Long and Terrible Shadow (Vancouver: Douglas and Mclntyre, 1991) . 69  Hon. Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North West Territories (Toronto: 1880), p. 59, quoted in Brian Slattery, "The Hidden Constitution: Aboriginal Rights in Canada", (1984) Vol 32 American Journal of Comparative Law 361, at 376.  70 that nation to nation relations had to be conducted with the North American Indians.60 After the elimination of France as a colonial rival, the principles underlying the practices of settler/aboriginal relations were ensconced in British law in the Royal Proclamation 1763.61 Most scholars cite the Royal Proclamation in combination with the existence of aboriginal title as the sources of the CrownAboriginal  fiduciary  relationship.  62  A  reflection  of the  Proclamation's significance is the glowing terms in which it is often described. Justice Hall in Calder refers to the Proclamation as the "Magna Carta of Indian Rights." 63 Professor Mendes calls it the "Charter of Aboriginal Rights."  64  Citing its importance  as a fundamental document, McMurty and Pratt assert that the Crown's  "unilateral  establishes  one  undertaking  source  for  in  the  extending  the  Royal  Proclamation  Crown's  fiduciary  obligation beyond the specific surrender requirement." 65 Generally, the Royal Proclamation outlines policy guidelines which restrict the alienation of lands reserved for Indians. The  60  R. v. Sioui, [1990] 1 S.C.R. 1025 at 1053.  61  R.S.C. 1985, App. II. No.l.  62 It should be noted that the Royal Proclamation does not create aboriginal rights but rather acknowledges their existence. 63  [1973] 1 S.C.R. 313 at 395.  64  Professor Errol Mendes, p. 32.  65  W.R. McMurty and A. Pratt, "Indians and the Fiduciary Concept, SelfGovernment and the Constitution: Guerin in Perspective" (1986) 3 Canadian Native Law Reporter 19.  71 text of the relevant provisions follows: And whereas it is 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 part 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.... And Whereas Great Fraud and Abuses have been committed in purchasing Lands of the Indians, to the great prejudice of our interests and to the great dissatisfaction of the said Indians; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do with the advice of our Privy Council strictly enjoin and require, that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians, (emphasis mine) 66 Setting aside the issue of whether or not the Proclamation applies to all areas of Canada, in light of the language used and the terms included it is clear why Aboriginal peoples place great emphasis on the document.  While the Proclamation asserted sovereignty over  Aboriginal peoples it also recognized that these peoples were "nations" connected to the Crown by treaty and alliance. Further, it provided that First Nations should not be molested in their possession of unceded lands and stipulated that such lands could only be ceded to the Crown in public meetings called for that purpose. It prohibited colonial governments from granting away Aboriginal lands and ordered settlers not to invade them. In  Royal Proclamation of 1763 (reprinted in R.S.C. 1970 123-29).  Appendices, pp.  72 effect, the Proclamation acknowledged the retained sovereignty of Aboriginal peoples under the Crown's protection, and adopted measures to secure and protect their territorial rights.  As has  been stated by the Royal Commission on Aboriginal Peoples, "this arrangement is the historical basis for the enduring constitutional relationship between aboriginal nations and the Crown and provides the source of the Crown's fiduciary duties to those nations." 67 As is clear from the Royal Proclamation the Crown's assumption of power with respect to land serves as a cornerstone for the Crown-Indian relationship. It is through the land that the special relationship between the Crown and First Nations has been sustained.  Subsequent  to  the  Proclamation,  this  tradition  continued in the signing of pre and post Confederation treaties as well as in the creation of "Indians and lands reserved for Indians" as a head of power under s. 91(24) of the British North America Act.  The enactment of the Indian Act  special relationship.  in 1876  68  carried on the  69  Section 18 of the present Act exemplifies how the CrownAboriginal special relationship has been codified in legislation. That section reads:  "The Right of Aboriginal Self-Government and the Constitution: A Commentary" Royal Commission on Aboriginal Peoples, February 13, 1992. 68 69  S.C 1876, c. 18.  Many First Nations would disagree. Their assertion is that the legislation is an abuse of the fiduciary relationship because of its underlying philosophy of administering Indian people who were perceived as not being able to take care of themselves.  73 18(1) Subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart; and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the It is important to remember that such Indian Act provisions do not create the unique relationship, rather, aspects of the fiduciary relationship are absorbed into the legislation. Justice Wilson makes this point clear in Roberts v. Canada  where she writes:  The obligation owed by the Crown in respect of land held for the Indians is recognized in, although not created by s. 18(1) of the Indian Act. 71 It is a repetition of the principle first stated in Guerin. Although land is the cornerstone of the Crown-Aboriginal fiduciary relationship, limiting the special relationship to land issues, as Minister Siddon suggests, is a shirking of government responsibility. Firstly it is contrary to the double head of power contemplated by s. 91(24) of the British North America Act. 1867.72 Secondly,  it is contrary to the pervasiveness  of government  influence over the lives of Indians. R.S.C. 1952, c. 149. The section is probably best described as an antitrust provision rather than a pro-trust fiduciary section By giving the Governor in Council discretion to decide what is for the use and benefit of the band immunizes the government from trust claims. Also see s. 37 and s. 38 of the Indian Act regarding a prohibition on the alienation, leasing or disposal of reserve lands unless surrender to the Crown has occurred. 71 72  [1989] 1 S.C.R. 322, at 336.  Clarification of Federal Crown responsibility for Indians separate from lands is found in the B.C. Terms of Union where the Federal Government provided for the hunting, fishing and trapping rights of Indians on all unoccupied Crown lands: British Columbia Terms of Union, R.S.C. 1985. App. II. No. 10, art. 13.  74 Sparrow supports the proposition that the fiduciary concept should not be confined to land related issues. The danger is that this aspect of Sparrow will be seen as either as anomaly or rhetoric. Patrick Macklem has speculated that the "borders of the Canadian legal imagination" may well prove too restrictive to accommodate such interpretations. ^ in  Canadian  fiduciary  case  law,  By examining past landmarks whether  or  not  current  jurisprudence is adequate to the task of reconstructing the CrownAboriginal relationship becomes clearer. chapter is concerned with that project.  73  Macklem, p. 393.  Section iv of this  75 (iv)  (a)  CROWN-NATIVE FIDUCIARY JURISPRUDENCE  Pre-Sparrow Case Law  What follows is a review of pre-Sparrow case law in relation to the Crown-Aboriginal special relationship.  Four cases which  contribute to a framework for expanding the scope and content of the fiduciary concept are canvassed: Guerin  74  , Kruger v. R.,75 R.  v. Taylor and Williams,76 and Ontario v. Bear island Foundation.77 All four are needed to balance the lack of content given to the fiduciary concept by Justice Addy in Canada v. Apsassin.  Taken  together, the cases represent the jurisprudential climate in which conjecture about an expanded fiduciary relationship will be tested.  1.  Supportive Decisions  1. Guerin Regarding Crown-First Nation fiduciary theory Guerin is where it all began. The case must be recognized for advancing the cause of First Nations by initiating judicial review of exercises of  supra, fn. 48. 75  17 D.L.R. (4th) 591 (F.C.A.)  76  supra, fn 55.  77  [1991] 2 S.C.R. 570.  76 Crown authority in relation to aboriginal people. Previous to the decision the Federal Crown argued that its obligations to native people were not legally enforceable, but rather were political in nature. After Guerin, at least in relation to managing surrendered land, DIAND cannot immunize itself from liability for mismanagement by invoking a doctrine of "political trust." The case established that when the Crown deals with reserve lands on behalf of an Indian band, the Crown is under an equitable or fiduciary obligation:  ...Where by statue, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary strict standard of conduct. 7® One of the most important principles to take from the decision is the statement that the "categories of fiduciary, like those of negligence, should not be considered closed." 79 The facts in Guerin involved the surrender of reserve land to the Crown for lease to a golf club in a situation where the band and band members were consulted as to the terms and conditions of the lease.  The band sued the Crown for breach of its fiduciary  obligations arguing that the terms obtained for use of Musqueam land were contrary to the band's conditions for lease.  At the  Supreme Court, eight judges agreed in the result that the Crown had  78  Guerin, p. 384.  79  Ibid., p. 384.  77 breached its obligations.  However, the Court expressed three  separate opinions on the reasons for this result. Justice Estey held that the Crown was as an agent in the commercial exploitation of the band's interest. Wilson J. speaking for three members of the Court found that upon surrender a general fiduciary duty to hold reserve land for the use and benefit of the Indians became an express trust. In a decision representing one-half of the Court, Justice  Dickson  opined  that  obligation was established.  upon the  surrender  a  fiduciary  He based his finding of federal  liability upon the Crown's sui generis fiduciary responsibility with respect to Indian lands. Generally, Guerin sets out the content of the fiduciary duty in the situation of surrender, but can be expanded to apply to analogous  situations.  Analogous  situations  would  include  expropriation, or the managing of "trust" moneys on behalf of aboriginal people. Three elements must be present in order for a Guerin type fiduciary relationship to arise: an obligation on the part of the Crown to act on behalf of aboriginal peoples (usually a statutory power), power of the Crown to affect those interests, and vulnerability of the aboriginal peoples to the exercise of that power or discretion.  In these situations the elasticity of the  sui generis concept allows the fiduciary obligation to stretch to include all aspects of private law fiduciary standards. Thus, the standard imposed on the fiduciary should be high requiring acts of  78 "utmost good faith." 80 In Guerin Dickson, J. was of the view that the Crown would be held to the fiduciary's strict standard of conduct. The duty of the fiduciary noted Justice Dickson is that of "utmost loyalty" to the party for whose benefit it acts.81  Unconscionability being the  key, breach of this duty must be determined against the backdrop of all the circumstances. 82 In the private law situation no conflict of interest is tolerated and the fiduciary must act with utmost "faithfulness, loyalty and conformity to the instructions of the beneficiary." 83 Given the various shapes and forms of aboriginalCrown relationships these strict standards should not be considered ubiquitously applicable.  Rather, they exist at the upper end of  the spectrum and are to be invoked only when the Crown-Aboriginal relationship resembles private law trust situations.  Obviously,  not all Crown-Aboriginal fiduciary relationship should or could embrace all aspects of private trust law.  80  Ellis, p.  1-2.  81  Ibid.,  at  389.  82  Ibid.,  p.  388.  83  Ibid.  19  2. Kruger  The Federal Court of Appeal's decision in Kruger v. R.  84  provides limited support for an expanded reading of the Crown's fiduciary responsibility. sought  by  a  B.C.  At issue in Kruger was compensation  Indian  band  because  of  a  World  War  II  expropriation of Indian lands by the Departments of Transport and National Defence. The land was expropriated for the purposes of constructing  an  airport.  unsuccessful  in  establishing  fiduciary duty.  Ultimately their  the  appellants  allegation  of  were  breach  of  However in holding that the fiduciary obligation  discussed in Guerin applied to the facts before them the Court established an important precedent.  85  Even though it is in a  closely analogous situation, Kruger provides the first judicial recognition that the Crown stands in a fiduciary relationship with aboriginals outside of situations of surrender. Kruger is important for several other reasons.  Firstly, it  raises the issue of conflict of interest and makes clear that the federal Crown's obligations to Indians is a duty owed by the Crown as a whole and not merely a responsibility of the Department of Indian and Northern Affairs:  84 85  17 D.L.R. (4th) 591.  Urie, J. Stone J. and Heald J. provided separate opinions. Justice Heald's comments are the most supportive regarding breach of fiduciary duties. Unfortunately he held that the action was statue barred because of limitation periods. Urie and Stone, JJ. saw no foundation for the breach of fiduciary duty allegations.  80 This situation resulted in competing considerations. Accordingly, the federal Crown cannot default on its fiduciary obligation to the Indians through a plea of competing considerations by different departments of government. The law is clear that "...one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside" and that "Equity fashioned the rule that no man may allow his duty to conflict with his interest" On this basis, the federal Crown cannot default on its fiduciary obligation to the Indians through a plea of competing considerations by different departments of government.* Further on Heald J. clarifies that it is not only DIAND which has special  obligations  but  that  Cabinet  is  also  involved  the  relationship: The Governor in Council is not able to default in its fiduciary relationship to the Indians on the basis of other priorities and other considerations. 87 Unfortunately, the judgment never squarely addresses the problem of having  the  Minister  of  Indian  Affairs,  putatively  the  representative of native interests, simultaneously representing the public's interest as a member of Cabinet. Secondly, Kruger establishes a firm precedent for honesty, openness and disclosure by the Crown when dealing with First Nations. A significant factor leading to Heald J.»s finding that the Crown had breached its fiduciary obligation was the failure to disclose information which could be material to the assent of the Indians. Justice Heald adopted the following view with respect to  Ibid.,p. 608. Ibid., p.623.  81 the issue of informed consent: It seems clear that "provided the trust beneficiary acts with full knowledge of the trust affairs, a sale by him of his interest to a trustee is a valid contract." However, in these circumstances "the onus of proof is on the trustee or fiduciary to show that the beneficiary did indeed have all relevant information known to the trustee." 88 This criteria becomes especially important in situations where the Crown enters into discussions with third parties regarding the development of Indian resources as in the development of Indian oil and gas reserves, or Indian forestry resources. Finally Kruqer is significant because it addresses the issue of taking aboriginal interests into account when making policy decisions. Heald J. makes reference to the necessity of some sort of justification process: If there was evidence in the record to indicate that careful consideration and due weight had been given to the pleas and representations by Indian Affairs on behalf of the Indians, and, thereafter, an offer of settlement reflecting those representations had been made, I would have viewed the matter differently. 89 References to "careful consideration and due weight" and "offers of settlement" recognize native rights and corresponding Crown duties. It is a foreshadowing of the Sparrow doctrine where attempts are made to reconcile conflicting rights and obligations.  Ibid., p. 608. Ibid., p. 623.  82 3. . Rj_ v. Taylor and Williams  Justice MacKinnon's decision in Taylor and Williams  90  was  adopted by the Supreme Court in Sparrow and cited as establishing one  of  the  guiding  principles  application of s. 35(1).  91  for  the  interpretation  and  The decision is the source of the  "honour of the crown" language which has recently been referred to by the Federal government as "underscoring all dealings with aboriginal peoples." 92 MacKinnon J. considered charges against Chippewa First Nation members for hunting bullfrogs contrary to Ontario game and fish regulations. In undertaking an historical analysis of conditions surrounding the signing of the relevant treaty, Justice MacKinnon noted that despite ambiguous wording in the treaty Indian oral tradition  established  that  the  Indians had  not  intended  to  surrender their hunting and fishing rights. This was confirmed by contemporaneous minutes of council meetings which had occurred in preparation for the treaty signing. Regarding the interpretation of treaties MacKinnon emphasized that  the  "honour of the Crown" is always  involved  appearance of sharp dealing should be sanctioned." 90  34 O.R. (2d) 260  91  Sparrow at 1108.  93  and  "no  In the  (Ont. C.A.)  See: The Aboriginal Constitutional Process: An Historic Overview (Ottawa: Government of Canada, 1991). 93  Ibid, p. 367.  83 Taylor and Williams situation it is implied that the omission was either an oversight or the result of deceit.  For MacKinnon it  would be unconscionable to deprive the Chippewa of their right to hunt and fish where the practices of the Crown were tainted or appeared to be tainted.  Taylor and Williams is responsible for  importing into Sparrow, and thus into the law of Crown-Aboriginal fiduciary responsibilities, the concept of a "high standard of honourable dealing with respect to aboriginal peoples." 94 "Honour" provides a safe and inoffensive word for the government to use when perhaps it is a euphemism for yet to be identified fiduciary relationships? This new doctrine of "honourable dealing" will require elaboration and refinement on a case by case approach. In order to give content to the "honour" principle a starting point is to turn to standards of ethics, reasonableness and fairness that operate in other areas of law.  For example in negotiation  situations, labour law standards of bargaining in good faith are applicable.  In administrative situations standards of procedural  fairness are appropriate.  Sparrow at 1109.  84 6.  Temaqami  In Ontario v, Bear Island Foundation,  95  the Supreme Court  made obiter comments regarding fiduciary relations between the Crown and native people. Regarding treaty interpretation the Court held  that any  right to  land  claimed  by the band had  been  extinguished by the Robinson-Huron treaty of 1850. Regarding the Crown-Indian fiduciary relationship the Court said that the Crown had breached its fiduciary obligations to the Indians by failing to comply with its treaty obligations.  Temaqami is evidence that  surrender, expropriation and interference with aboriginal and treaty rights do not comprise the exhaustive list of fiduciary situations. A new category, non-fulfilment of treaty obligations, has been added.  By implication, the list is not necessarily  closed. Notwithstanding the Supreme Court's comments with regard to breach of fiduciary duty, it's validation of the Ontario Court of Appeal's judgment is troubling.96  No comments were made as to the  specious nature of the Ontario Court of Appeal's alternative reasons  which  cannot  be  reconciled  with  any  version  of an  "honourable dealings" doctrine. The Court of Appeal provided three alternative reasons as to why the aboriginal rights enjoyed by the  [1991] 2 S.C.R. 570. The decision is also known as the Temaqami case after the Band and forest involved. (1989) 68 O.R. (2d) 394 (O.C.A.)  85 band had been extinguished. First the Court recognized evidence that the band was a signatory to the Robinson-Huron Treaty. Alternatively, the Court held that the treaty had effect because the band adhered to it by receiving annuities pursuant to the treaty and by asking for and receiving a reserve as promised in the treaty (even though delivery of the annuities were sporadic and the reserve was not delivered until many years after the treaty came into effect).  Lastly, the Court recognized American jurisprudence  regarding the unilateral extinguishment of aboriginal title by sovereign authority.  After citing Mr. Justice Hall in Calder,  himself citing the United States Supreme Court: "Extinguishment can take several forms; it can be effected by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise..." United States v. Santa Fe Pac R.R (314 U.S. at 347), the Ontario Court reached the following conclusion: It follows, therefore, from this general proposition that a sovereign may express the intent to extinguish aboriginal rights through a treaty even though the treaty itself may be imperfect in the sense that not all of the Indian bands or tribes whose lands are involved are signatories. 97 In the opinion of the Ontario Court of Appeal, because the Crown had the power to take Indian land, even an imperfect document could constructively effect a land transfer. Reliance on imperfect title contradicts ideals of honourable dealing.  Ibid., p. 412.  86 2. Unsupportive Decisions  1. Apsassin Where some decisions provide at least limited support for an expanded  reading  of  fiduciary  responsibilities, Apsassin  Canada98 provides no support at all.  v.  The case centered around  allegations by the Doig River and Blueberry River Indian bands that DIAND had breached its fiduciary obligations in relation to the surrender and transfer of lands and mineral rights. of the Federal Court Trial Division  Justice Addy  interprets Dickson J. 's  findings in Guerin in the narrowest possible way: With the exception of any special obligations which might be created by treaty, there is no special fiduciary relationship or duty owed by the Crown with regard to reserve lands previous to surrender nor, a fortiori is there any remaining after the surrendered lands have been transferred and disposed of subsequently. ...There might indeed exist a moral, social or political obligation to take special care of the Indians and to protect them (especially those bands who are not advanced educationally, socially or politically) from the selfishness, cupidity, cunning, stratagems and trickery of the white man. That type of political obligation, unenforceable at law...would be applicable previous to surrender." Justice Addy refused to find a fiduciary obligation with respect to reserve  lands prior to surrender. In his view there are no  enforceable Crown obligations beyond moral or political ones. Had s. 35 and Sparrow not appeared to resurrect theories of fiduciary extension,  Apsassin may well have sounded the death knell to any  [1988] 3 F.T.R. 161 (F.C.T.D.) Ibid, at 138.  87 future creative arguments. A mollifying point to Addy J's restrictive interpretation is that the case may be distinguished on its facts. The surrender in Apsassin. involving the transfer of Indian lands to the Veterans Administration Department was absolute and not a lease situation as in Guerin.  Consequently, Addy, J.• s comments on the narrow scope  of the Crown-Aboriginal special relationship may be characterized as obiter.  88 (b) Post Sparrow Jurisprudence  Jurisprudence  in the  area  of  s.  35 rights  is rapidly  expanding. Since Sparrow provincial courts have been deluged with cases related to s. 35 aboriginal and treaty rights.100  Generally  the cases involve a simple application of the justification test to determine whether or not Fish and Game regulations infringe on aboriginal peoples' rights to hunt or fish.  The bulk of cases do  not involve argument with respect to extending the fiduciary relationship beyond the hunting and fishing scenario.  In the  wake of Sparrow four cases have gone before the courts arguing for an expansion of fiduciary categories. To date the judges concerned have evaded or been relieved of dealing directly with the issue. It may be too soon to say whether the Sparrow fiduciary doctrine is inadequate  to  the  task  of  reconstructing  Crown-Aboriginal  relations.  However, to date, under the fiduciary rubric nothing  has been delivered.  100  See for example: R^_ v. Vanderpeet (1991) 58 B.C.L.R. (2d) 392; Rj. v. Commanda (Ontario District Court, unreported August 23, 1991); R. v. Nikal (B.C.S.C., unreported, October 24, 1990; R. v. Jack et al. (B.C. Prov. Ct.), unreported, October 22, 1990); R. v. Gladstone (B.C. Prov. Ct.) (October 3, 1990). R v. Howard (Ontario Ct. General Division, [1991] O.J. No. 548, Jan. 3. 1991; Ri v. Joseph (Yukon Territorial Court), [1991] Y.J.No. 37, Feb. 7. 1991.  89 1.  Thomas  v.  Minister  of  Indian  Affairs  and  Northern  Development101 In Thomas v. The Queen  102  the Plaintiffs argued that a  breach of fiduciary duty arose from the administrative actions of Department of Indian and Northern Affairs officials.  The facts  involved the elimination of funding to support the employment of a superintendent of education for the Peguis Indian Band.  Counsel  for the Band relied on Sparrow and Guerin to argue that a fiduciary duty arose out of a combination of treaty provisions and statutory responsibility.  Instead  of  deciding  the  case  on  fiduciary  principles, Madame Justice Reid held that ordinary principles of contract law provided a solution. In 1984 the Minister of Indian Affairs agreed to fund a school board superintendent's salary for a school on the Peguis reserve. A few years later the Minister changed the method of funding band operated schools, eliminating the superintendent position.  The  band sued the Crown alleging that the superintendent's salary should be paid over and above the amount received by the band under the new funding formula. Counsel for the Indian band argued that the facts established  that the Crown breached  the fiduciary  obligations owed to the band. Counsel argued that the fiduciary relationship arose out of the Treaty provisions on education103  101  (1991) 42 F.T.R. 133 (F.C.T.D.)  102  (1991) 41 F.T.R. 133 (F.C.T.D.)  103  The relevant clause in Treaty 1 reads: "Her majesty agrees to maintain a school on each reserve hereby made whenever the Indians of the reserve should desire it."  90 coupled with the Crown's statutory discretion as to how that duty will be discharged.104 Most interesting about Thomas is the position that a breach of the fiduciary relationship can arise from the administrative actions of officials away from dealing with surrendered or leased lands. It is an attempt to conflate principles found in Guerin and Sparrow. As in Sparrow an entrenched s. 35 right is in issue, this time however a treaty right instead of an inherent aboriginal right.  In Guerin the obligation owed by the Crown in respect of  lands held for Indians was recognized through s. 18 of the Indian Act.  Similarly in Thomas the education obligation owed by the  Crown in respect of education is recognized but not created by ss. 114-123 of the Indian Act.  Thus, in Thomas both treaty and  vulnerability created by statute create the scenario where a fiduciary duty is owed by the Crown.  From a Guerin perspective  native interests were vulnerable to Ministerial discretion. Through the Indian Act the Crown possesses discretion as to how educational obligation will be discharged. Moreover the Crown has absolute control over the exercise of that discretion. From a Sparrow perspective an entrenched treaty right was trammelled. The facts in Thomas establish that in 1977 the content of the treaty right to education was changed. Instead of the Department operating the school it had been determined through negotiation  Section 114-123 of the Indian Act R.S.C. 1985, c. 1-6 enables the Governor in Council and the Minister of Indian Affairs to fulfil the obligations owed.  91 that the Peguis Band would operate its own school with Ministerial funding.  The band sought to secure the expertise of strong  educational management personnel in order that the Band could acquire similar expertise and therefore negotiated the hiring of Mr. Thomas.105  Originally the agreement between the Peguis Indian  Band and DIAND  provided that the Band would reimburse the  Department for Mr. Thomas1 salary. This was modified, however, since the Band did not have funds available. The Department agreed not to seek reimbursement of the salary.  In the 1987-88 fiscal  year DIAND changed its method of funding Indian band schools eliminating funds for superintendent positions. The new system was not developed in consultation with native groups.106  Given that  education is a treaty right and its content was established through negotiation, the unilateral alteration of the terms are contrary to Sparrow principles. No justification process was entered into to determine if infringement was permissable, nor was consultation with the affected group undertaken.  In Sparrow regulations were  the abrogating instrument. However this should not preclude the principles  set  out  therein  being  equally  applicable  to  an  administrative decision (i.e. the refusal to fund Mr. Thomas's salary). In deciding that she did not have to refer to fiduciary duties to decide the case Justice Reed forestalled discussion on how  Ibid., p. 134 Ibid., p. 137.  92 Sparrow principles will be applied to fact situations where the aboriginal right moves beyond a sustenance food right, and the infringement is not by direct government regulation.  In her view  contractual obligations were intended. Consequently, in accordance with the 1984 agreement,  the Crown had to pay the band an  additional amount to cover the superintendent's salary.  93 2• Desiarlais  Desjarlais Development  107  v.  Minister  of  Indian  Affairs  and  Northern  is the first of two decisions written by Justice  Strayer of the Federal Court Trial Division which gives some support to the extension of Crown fiduciary obligations. Justice Strayer's decision resulted from an interlocutory motion whereby the  plaintiffs,  the  Sandy  Bay  Band  of  Manitoba  and  its  representatives, requested payment into court of a sum of money pending final determination of the action. Breach of fiduciary duty was alleged where the Band had been given assurances that funding for housing construction would be available in the next fiscal year.  108  A time delay was necessary  to allow the Band to issue a tender call for suppliers and contractors. When the Band was later told that the available funds had been allocated to other bands, the band sued.  In an unusual  digression Justice Strayer documents the shocking state of housing conditions on the reserve.  He notes that there is a severe  housing shortage with 3 0% of the houses having ten or more inhabitants. He adds that most of the houses have no running water or indoor toilets and that some presently occupied homes are 107  . 18 F.T.R. 316. (F.C.T.D. )  108  The money in dispute was to provide the means for Indian bands to make available additional housing for persons who were returning to the reserve as a result of Indian Act amendments which allowed previously disenfranchised natives to regain their Indian status. See R.S.C. 1-6, S.C. 1985 c. 27. For a discussion of the marrying out provisions see: Duclos, "Lessons of Difference: Feminist Theory on Cultural Diversity" (1990) 38 Buffalo Law Review 325.  94 uninsulated with frost on the inside walls.  To quote Justice  Strayer: These are deplorable conditions which should in my view be an embarrassment to the Department concerned and to Canadian society in general. 1°9 Why this is relevant to the issues at hand is not immediately obvious.  In drawing attention to the disparity between some  aboriginal and non-aboriginal living conditions  Strayer signals  that principles of comparative equity are factored  into his  perception of the Crown's fiduciary responsibilities.  Using the  criteria appropriate to the grant of interlocutory injunctions Justice Stayer addressed the issue of whether or not a "serious question" arose as to the existence of the fiduciary obligation alleged.  He  commented  that  the  nature  of  the  fiduciary  relationship gave rise to "very complex questions" and concluded that there was a "serious legal question as to whether a fiduciary relationship might be made out." 11° Guerin  Relying on statements from  Strayer found that it was certainly arguable that in  relation  to  the  housing  money  the  Crown  has  the  kind  of  discretionary power which give rise to a fiduciary duty. He added that it was also arguable that the duty of the Crown to act on behalf of the plaintiff is "created or reinforced" by section 61(1)  103  Ibid., p. 319.  110  Ibid., p. 319.  95 of the Indian Act. 111 Two possible errors are identifiable in the judgment. It is arguable that Strayer J. may have been wrong in characterizing the housing funds as "Indian moneys." 112  Secondly, instead of breach  of fiduciary duty, a better view might be that the action would be more solidly founded on a tort of misrepresentation, or breach of contract.  Answers to these speculations are not available as the  matter was settled out of court. For anyone attempting to build an argument for expanded fiduciary powers, most significant about the case is the importance Strayer J. attaches to allegations of breach of fiduciary duty. At the time he considered the case, all he had to guide him were pronouncements from Guerin. Bearing in mind the broad language in Sparrow, it is probable that like thinking judges presented with similar  facts will  be  obliged  to  take  breach  of  fiduciary  allegations equally, if not more seriously.  111  Ibid., p. 319. Section 61(1) reads: Indian moneys shall be expended only for the benefit of the Indians or bands for whose use and benefit in common the moneys are received or held... 112 For an informative discussion of the nature of "Indian moneys" and trust accounts see "Chapter 9" Report of the Special Committee on Indian Self Government , p. 125-129.  96 3.  Bruno  It is difficult to determine whether Bruno v. The Queen  113  should be located under cases supportive or unsupportive of expanding  Crown  fiduciary  obligations.  On  one  hand  Bruno  establishes that in certain circumstances there is an obligation on the federal government to pass regulations as part of its fiduciary duties. On the other hand it is a re-entrenchment of the political trust doctrine which allows the government to get away with outrageous mismanagement. The situation in Bruno is what Ian Binnie refers to in his case comment on Sparrow where he describes the fiduciary duty placing  on Parliament a positive duty to act under 91(24).  According to Binnie because of Sparrow aboriginal organizations can now argue that Parliament no longer has a mere legislative power with regard to Indians, rather it now has a power coupled with a m  duty.  Any consideration of Sparrow is noticeably absent from  Strayer's reasons. Although the application was received 5 weeks before Sparrow was released, Strayer's reasons for judgment came out approximately 5 months after Sparrow. The case arose by way of a "Special Case"  113  115  whereby Mr.  (1990) 39 F.T.R. 142.  11  W.I.C. Binnie, "The Sparrow Doctrine: Beginning of the End or End of the Beginning?" (1990) 15 Queen's Law Journal 217, at 220. 116  . Rule 475, Federal Court Rules.  97 Justice Strayer of the Federal Court Trial Division gave judgment based on an agreed statement of facts. The Alexander Indian Band alleged that it lost one million dollars in royalty revenues because the federal government did not act to pass regulations to allow the band to profit from increased oil prices. During the time in question oil prices skyrocketed as a result of the OPEC oil embargo.  According to the Band there was a duty on the Crown to  take timely action to raise the royalty revenues to a level equivalent to the royalty revenues realized by other Alberta Indian bands which fell under a provincial regulatory scheme. Following Guerin, Justice  Strayer held  that there  is a  "general fiduciary obligation owed by the Crown in right of Canada towards each Indian band in respect of the reserve land of each 116  band."  He  further  stated that the fiduciary  obligation  required that the federal government exercise: . . . governmental powers which only it has, where this may reasonably and lawfully be done to perform adequately the specific fiduciary obligation it owes to a given band whose Indian title has been surrendered to the Crown.117 Clearly  Justice  Strayer  is  indicating  that  the  fiduciary  relationship could require that legislative action be taken in order to adequately fulfil the obligation. Despite Justice Strayer*s expansive reading the plaintiffs were unsuccessful. In Justice Strayer's opinion the general nature  116  I b i d . , p . 146.  117  I b i d . , p . 148.  of  the  regulations  made  judicial  review  for  timeliness  inappropriate. It is the distinction between specific fiduciary obligations  and  regulations  of general  application which  is  crucial: An examination of these regulations reveals that they apply generally to all Indian lands in Canada in respect of mineral rights, and include provisions which cover a whole range of activities in relation to the management, disposition, and exploitation of mineral rights including exploration and production. As such they involve the exercise of a general legislative power granted to the Governor General in Council which goes far beyond any possible fiduciary obligation owed by the defendant to these particular plaintiffs in the particular facts of this case. The enactment of the regulations must be seen as primarily the performance of a political duty which is not enforceable in the courts. 118 Citing the "general nature" of the regulations Justice Strayer found that it would be inappropriate for a court to assess the timeliness of their adoption. An interesting question arises as to whether a remedy for damages would have been available had it been pleaded. Traditional fiduciary law recognizes monetary damages as a remedial category.  However Strayer, J. may also have avoided  delivering this remedy as well. Nevertheless, some favourable points can be salvaged from the decision.  Had the regulations not been of general application  Justice Strayer would have located the Crown's activities within the realm of the sui generis Crown-Indian fiduciary relationship and forced the federal government to take legislative action. This is a strong indication regarding the activist stance some judges  Ibid., p. 148.  99 are prepared to take in the area of fiduciary obligations.  By  indirectly threatening the sanctity of parliamentary supremacy vitality is breathed into the fiduciary concept. A strong message is sent to politicians and bureaucrats as to how seriously courts consider the invocation of Crown-Aboriginal fiduciary relationship. The resulting effect is to create an atmosphere of respect around the grievances and demands of native peoples.  100 4. Carrier-Sekani  The most recent case in which an appellant raised issues around fiduciary obligations is that of Carrier-Sekani Tribal Council et al. v. Minister of the Environment et al.  119  The  decision involved the development of hydro-electric and aluminum processing facilities by Alcan Aluminium Limited.  Known as the  Kemano Completion Project, Alcan's plans will affect the water flow in two rivers in west-central British Columbia. The Carrier-Sekani Tribal Council, the Chiefs of 11 Carrier Indian Bands and an environmental coalition known as the Save the Bulkley Society asserted that the project was proceeding illegally because it had not been subject to proper federal environmental review procedures. The Minister of Fisheries and Oceans, Alcan and the province  of  British  Columbia  executed  an  agreement  whereby  extensive environmental studies undertaken by the aluminium company were accepted by the Minister.  Despite repeated requests to be  involved native and environmental groups were never consulted. At the Federal Court Trial Division the opponents sought certiorari to quash decisions respecting the agreement, and mandamus to compel federal authorities to comply with the federal  Environmental  Assessment and Review Process Guidelines Order. The day after the motions were filed Order in Council SOR/90-79 was passed which provided that the EARP Guidelines did not apply to the Kemano  118  Federal Court of Appeal, F.C.J. No. 405. May 8, 1992.  101 Completion Project. The appellants sought to quash the Order in Council. At the Federal Court Trial Division, Justice Walsh issued orders  of  certiorari  and  mandamus  and  ordered  the  federal  government to comply with the Guidelines Order.120 On appeal Justice Marceau writing for the bench overturned Justice Walsh's reasons.  In his view natural justice had been  breached since in granting the remedies the motions judge did not provide the Appellant with full opportunity to present their case. In addition, according  to Marceau J.,  none of the  impugned  ministerial actions constituted decisions capable of bringing the Alcan project within the purview of the EARP guidelines. Regarding aboriginal rights, he dismissed the cross-appeal filed by the Tribal Council alleging that Justice Walsh erred in not adding to the grounds on which he quashed the Order in Council the fact that the order breached s. 35 rights. glaring.  Justice Walsh's omission was  In the original application the respondents had argued  that the Order be set aside because "it breached fiduciary duties the  Respondents  owed  to  the  Applicants,  and  that  it  was  "inconsistent with the recognition and affirmation of ...existing aboriginal rights in s. 35 of the Constitution Act, 1982." On appeal Justice Marceau summarily dismissed any arguments dealing with s. 35 and fiduciary duties. Regarding "aboriginal and treaty rights" he held that s. 35 was irrelevant having "no bearing whatsoever" on the case.  Regarding the allegation of breach of  44 F.T.R. 273 (F.C.T.D.).  102 fiduciary duties Marceau, J. held that there was nothing on the record to support such a conclusion. He gave two reasons as to why it was impossible for the government to have breached its fiduciary duty towards the Carrier-Sekani. First the government would have to be aware of the precise content of that duty. Second the government would have to be satisfied that the only way to fulfil that duty would be to confirm the application of the EARP Guidelines to the project! Marceau's dismissal of s. 35 rights is insulting. It shows a disregard  for  both  aboriginal  concerns  and  constitutionally  entrenched rights. As Sparrow illustrates fishing rights are at the heart of many aboriginal communities. In Carrier-Sekani evidence was advanced that because of the Alcan project river water levels would be affected, and that the level of flow would affect the fisheries. However no damage had yet occurred and infringement was only speculative. Given this scenario, under Marceau's analysis there is no method of protecting threatened aboriginal rights. A huge gap in the Crown-Aboriginal fiduciary relationship scheme is exposed. In Sparrow direct infringement of aboriginal rights occurred through legislative regulation. Here infringement is indirect resulting from a third parties' actions.  Does this mean  that the government  its fiduciary  obligations?  is not obliged  to  fulfil  A prima facie case could easily be established that  Alcan's development project would have a detrimental affect on aboriginal fishing rights, yet because no federal actions triggered  103 t h e a p p l i c a t i o n of EARP g u i d e l i n e s t h e r e e x i s t s no way t o a s s e s s or prevent  future  damage.121  Just  Environmental Review Process,  as  there  is  a  a need a l s o e x i s t s  need for  for  an  watchdog  guidelines to protect aboriginal r i g h t s .  121  The mechanics of t h e EARP g u i d e l i n e s a r e s c r u t i n i z e d i n t h e Supreme Court d e c i s i o n F i r e n d s of t h e Oldman River S o c i e t y v . Canada , [ 1 9 9 1 ] 1 S.C.R. 3 .  104 (Vi)  FIDUCIARY OBLIGATIONS AND POLICY DEVELOPMENT  Sparrow can be seen as an attempt to reform Crown-Aboriginal relationships. It is a new frame of reference invoked by the Court to structure native reality.  If it is a positive development then  it should provide opportunities for expanding and transforming law so that it can serve as a vehicle for native empowerment. At this point it is impossible to determine whether the Sparrow doctrine can or will meet this task, however many moments of opportunity are provided. It is up to the legal imagination to seize them. By including within the calculus of tests that comprise the justification analysis the need to consult native people affected by state regulation, the Court in Sparrow has provided a window of opportunity for native contribution to policy development. The Court established a constitutional framework for the protection of aboriginal interests which theoretically could lead to the active involvement of native people in the formation of laws and policies which govern their lives. For example, if the requirement of consultation is deepened, in future cases it could result in a constitutional  requirement  of  an  equal  partnership  between  governments and First Nations in the drafting of laws which affect s. 35 rights. Once it has been established that an expansive and legally enforceable fiduciary obligation exists, the next issue is to determine what standards apply in specific situations.  What  105 follows is an attempt to sketch a framework for fiduciary standards in the area of aboriginal affairs policy development.  Policy  development is intended to mean the processes involved which lead to decisions with respect to budgetary allocations, design of programs, or federal government operations which affect aboriginal interests.  122  In developing the framework various sources are  drawn upon including recommendations of past committees, case law, and standards of conduct associated with other areas of law. If the relationship between the Crown and aboriginal people is "trust-like  and  not  adversarial"123  then  mechansims  must  be  developed to avoid repeating the history of controversies and antagonism which have plagued policy decisions taken by DIAND. The recent controversy over changes to the post-secondary education assistance program vividly illustrates the shortcomings of the aboriginal affairs policy development and consultation process. In March of 1989 the then Minister of Indian Affairs Piere Cadieux announced changes to programs intended to encourage aboriginal people to attend post-secondary educational institutions. Citing increased student demand the Minister capped the level of the government's  financial  commitment.  The aboriginal  community  responded with anger organising hunger strikes and protests. In 122  Originally this section was intended to be an analysis of fiduciary standards in relation to one specific area of policy, such as, resource development, housing, education, or the preservation of aboriginal culture and languages. Although an in depth analysis of each of these would be a worthwhile exercise I have chosen to focus on general fiduciary policy standards rather than on narrow policy issues. Sparrow, p. 1108.  106 hearings before the Standing Committee on Aboriginal Affairs the Aboriginal Bar Association asserted that an aboriginal right to post-secondary education existed based on a general fiduciary obligation arising from unextinguished aboriginal title as well as Canada's special trust responsibility under s. 91(24) of the Constitution Act, 1867.  124  A second example illustrating the  inadequacy of the policy making process is the controversy which resulted from the 1990 Federal Budget which cut core funding to key aboriginal groups and aboriginal media.125 Given the non-adversarial and sui generis nature of fiduciary standards a consensual approach to aboriginal policy development should be favoured. It must be recognized that aboriginal people are not ordinary citizens subject to the whims of budgetary cut backs, or unilateral government decision making.  The unique  relationship between First Nations and the Crown and the high degree of government involvement in the lives of many native people makes  the  need  for policy  input  and  mandatory  consultation  essential. Specifics of adequate consultation processes need to be developed  to  fit  a  myriad  of  circumstances.  Generally,  consultation should mean either negotiated arrangement or joint  See: First Report of the Standing Committee on Aboriginal Affairs: PostSecondary Education Assistance (Ottawa:House of Commons,1989), p. 37. 126  As a result of Michael Wilson's 1990 budget $23 million was cut from Secretary of State multicultural funding, including funding aimed at native newspapers and advocacy groups. The Assembly of First Nations had its core funding cut by $592,000.00. See: Globe and Mail, March 24,1990.  107 policy development.  It should not mean xpolicy marketing1 where  the federal approach is largely developed and is presented to interested aboriginal groups for reaction or fine-tuning. In areas of  crucial  importance  participants  aboriginal  groups  need  to  be  direct  in policy development on a basis comparable in  importance to departmental executive committees. As is pointed out in the "Second Report of the Standing Committee  on  Aboriginal  Affairs"  a  consensual  approach  to  aboriginal policy development has both historical and contemporary precedent.  126  Historically, the essence of the treaty process  was a consensual process of deciding the parameters of CrownAboriginal relations.  In a contemporary sense this consensual  tradition is evident in the series of Constitutional Conferences on aboriginal rights held throughout the 1980*s. Although no more conferences are scheduled, section 35.1 of the Constitution Act requires that any amendments to s. 91(24) of the Constitution Act. 1867, or sections 25 or 35 of the Constitution Act, 1982  will  "require the participation of representatives of aboriginal people in a constitutional conference that must be called to discuss such amendments."  Following these examples it is not unreasonable to  suggest that proper consultative and policy dispute resolution mechanisms are required by the fiduciary relationship.  "Unfinished Business: An Agenda for All Canadians in the 1990's" Second Report of the Standing Committee on Aboriginal Affairs (House of Commons, March 1990), p. 26.  108 Sparrow  supports  the  proposition  that  s.  35  of  the  Constitution requires mandatory consultation with aboriginal groups whenever their interests are at stake.  127  The Court explicitly  makes the point when it specifies that within the justification analysis one of the questions that must be addressed is "whether the aboriginal group in question has been consulted with respect to the conservation measure being implemented."128  In the context  of policy development, to ensure that meaningful consultation is possible,  fiduciary  standards would  require  the sponsorship,  funding and maintenance of aboriginal associations. Where negotiation instead of consultation is pursued it too cannot function if secure funding does not exist for organizations which represent aboriginal interests. A precedent for negotiation funding exists in the area of land claims. With respect to the comprehensive land claims process aboriginal peoples are afforded the capacity to negotiate independently of Government. This entails the employment of highly skilled negotiators, support staff, lawyers and expert consultants. duty  is  foreseeable  where  the  A claim for breach of fiduciary Government  does  not  provide  aboriginal peoples with adequate resources to negotiate.129 In standard commercial negotiations negotiating parties often 127  Most recently aboriginal groups are asserting that as a third level of government their input should be sought on all Canadian issues and not just those isolated to obvious aboriginal concerns: Globe and Mail, March 13, 1992. 128  Sparrow, at 1119.  Negotiation funding is provided by way of loan, not grant. The policy means that First Nations ultimately bear the cost of the negotiations.  109 seek to have an information advantage over the other side. It is difficult to reconcile a non-adversarial concept of negotiating in the  context  of the  fiduciary  relationship  with  any  federal  government information advantage, or similar unsavoury tactics. As was stated in Taylor and Williams, no sharp practice will be countenanced. Thus in the fiduciary context where negotiations are pursued access to information, complete honesty and full disclosure become  essential  issues, as do  the  labour  law  concepts  of  bargaining in good faith and making genuine efforts to reach agreement. Where the Crown is acting as an agent for a First Nation full information and disclosure are equally important. For example in order  to  prevent  a  breach  of  fiduciary  obligations  where  negotiations are under way between the Crown and industry regarding the development of aboriginal natural resources the following standards would be appropriate: full disclosure of all discussions between the Crown and third parties regarding the development of Indian resources, the public advertising and tendering of all aboriginal development opportunities, and the availability of independent advice for aboriginal groups regarding the merits of any development proposal. Administrative  law  concepts  also  provide  a  source  for  establishing standards for fiduciary obligations in the area of policy development.  Procedural fairness or "due process" is  applicable where policy choices affect specific individuals and  110 collectivities.  Consider the situation of a change in budgetary  allocations to a particular band.  In order to be consistent with  standards of administrative law the government should ensure a reasonable  opportunity  for  the  affected  band  to  make  representations to the decision makers, as well as ensuring that the Band has sufficient notice and complete disclosure of all relevant information. When fiduciary standards are applied to the area of policy development the creation of new institutions and tribunals is also foreseeable.  Where conflicts between the Federal government  policies and First Nations develop an independent body is necessary to deal with contentious issues.  Several suggestions have been  made to meet the inadequacy of the present bureaucratic structure including  the  appointment  of an Ombudsperson  for Aboriginal  Affairs, and the creation of an "Aboriginal and Treaty Rights Protection Office."130 In recognition of the importance of the "special trust" relationship the Penner Committee recommended the establishment of an independent officer to monitor and report to Parliament on official actions affecting First Nations. The purpose of the office would be to ensure that the Crown's responsibility to Indians would be a paramount factor in assessing any activities undertaken or  Indian Self-Government in Canada - Report of the Special 74.Committee on Indian Self-Government (Ottawa: House of Commons, 1983), p. 124.  Ill approved  by  government.  131  A  comparable  office  is  the  Commissioner of Official Languages who reports annually on the implementation of the Official Languages Act, or the Auditor General  who  reports  annually  to  Parliament  on  government  expenditure. Alternatively, an Aboriginal and Treaty Rights Office could act as a watchdog to monitor both direct and indirect interference with aboriginal or treaty rights. Sparrow deals with the issue of direct legislative interference with aboriginal rights. Logically Sparrow principles should also apply to situations of indirect interference where large scale federally initiated or federally approved projects impinge on aboriginal rights.  Projects such as  the construction of hydro-electric dams or the construction of an airport need to be scrutinized for their potential effect on aboriginal and treaty rights. An office whose mandate is to review government projects for potential impact on aboriginal rights and to develop appropriate justification criteria would ensure that the Crown was meeting its fiduciary responsibilities to aboriginal peoples.  A comparable model is the review process established  under the EARP guidelines where the Federal Department of the Environment  is  responsible  for  studies  to  determine  the  environmental impact of any "initiative, undertaking or activity for  which  131  the  Government  Ibid., p. 125.  of  Canada  has  a  decision  making  112 responsibility. "132 Thinking  more  in  line  with  using  already  established  government structures, the Penner Committee envisaged transforming the role of the Minister of State of Indian Affairs.  Instead of  filling the role of a second class minister, or a minister in training, the Committee recommended that the Minister of State become the independent advocate and protector of First Nations' interests.  133  A comparable office is that of the Attorney  General whose responsibility entails the protection of the public interest with "complete independence regardless of conflicting governmental or political pressures."  134  This suggestion would  overcome the conflict of interest problems raised in Kruqer where the DIAND is perceived as representing both the interests of aboriginal peoples and the interests of government. Given the competing interests with which an elected official must deal, it is difficult to envisage how a member of cabinet could adequately and single-mindedly represent aboriginal interests. Appointed positions with legislative independence make more sense. To ensure that aboriginals have input into the policy making process an aboriginal advisory board  on general or specific  fiduciary issues is yet another possibility.  To a certain extent  See: Environmental Assessment and Review Process Guidelines Order, SOR/84-467, June 22, 1984, made pursuant to s. 6 of the Department of the Environment Act, R.S.C. 1985, c. F-15. 133  Ibid., p. 123. Ibid, p. 123.  113 the Indian Taxation Advisory Board is an example of this type of mechanism in relation to enacting band taxation by-laws. Although the Minister retains formal powers of disallowance he or she is advised by an expert aboriginal panel in making the decision. It is problematic that the Board acts as a control mechanism thereby limiting taxation powers and self-government. Regarding policy input the Taxation Advisory Board has a role in developing model by-law provisions for interested bands to follow.135  In a  fiduciary context, an analogous panel could advise the Minister on fiduciary responsibilities along the spectrum of possibilities from specific situations under the Indian Act, through interference with aboriginal Rights, to the development of self-government.  Indian and Northern Affairs Canada, Information Sheet No 23: Indian Taxation Advisory Board, 1991.  114 (Vi)  FIDUCIARY DUTIES AND SELF-GOVERNMENT  The spectre of liability created by Guerin and Sparrow have caused some to be concerned that the Department of Indian Affairs would be frozen in any of its attempts to work towards unloading programs onto self-governing First Nations.136 The theory is that an atmosphere of "fiduciary chill" exists thereby blocking policy initiatives  aimed  at  promoting  self-government.  Although  Kafkaesque encounters with the bureaucratic mind may make this fear well grounded, any DIAND  officials operating on this premise are  misinformed as to the nature of the fiduciary obligation, and as to the luxury of resting on presently inadequate policies. Instead they must take to heart the advice of the Manitoba Aboriginal Justice Inquiry: The time to act is at hand. Aboriginal people will be able to find their way out of the destructive labrynth to which they have been consigned, but only if federal and provincial governments take positive actions to fulfill their historic responsibilities and obligations. In this manner governments can begin to build a new relationship with aboriginal people based upon respect understanding and good will. 13^ The bureaucratic fear is that as a fiduciary the government should maintain control over Indian assets and activities, rather than risk being found liable for fiduciary breaches in transferring  Recent constitutional developments including the entrenchment of a justiciable right to self government may make this point moot. 137  Associate Chief Justice A.C. Hamilton, and Associate Chief Justice S.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba Volume 1: The Justice System. (Province of Manitoba, 1991), p. 121.  115 control.138  This is a complete misinterpretation of the fiduciary  principle indicating that paternalistic notions of the fiduciary as ward or guardian are still operating. Fiduciary obligations exist to protect First Nations' assets from mismanagement and abuse, not to prevent them from taking over their own affairs. If a First Nation is provided with complete information as to the decision it makes and the responsibility it is assuming, no reasonable court would allow  the transfer of control over services to return to  haunt the government. The key is to remember that the beneficiaries of  the  Crown's  adults,"139  fiduciary  duties  are  "competent  thinking  and that the stated goal of the Department of Indian  Affairs is to work with aboriginal peoples to develop "institutions of self-government that meet their unique requirements." 140 Pratte  &  McMurty's  sliding  scale  of  Crown  fiduciary  responsibilities provides a workable model applicable to bands of varying levels of sophistication.  They suggest that when a  particular Indian band is given discretionary power "which they are  This is complicated by the paranoia of some Indian bands who feel threatened by any government initiatives. Feeling secure in their current status some bands do not trust changes in the status quo. Examples of this mind-set include those bands opposed to Bill C-31 amendments which re-enfranchised band members who had lost their Indian status. See Twinn v. Canada (1987) 12 F.T.R. 130 where an Alberta Indian band challenged Parliament's authority to amend the Indian Act to reinstate previously disenfranchised band members. Even though the federal government promised that Bands would not have to suffer financially because of increased band lists, housing moneys have not proportionally increased. For a detailed treatment of the issue see Nitya Duclos, "Lessons of Difference: Feminist Theory on Cultural Diversity" (1990) 38 Buffalo Law Review 325. 139  See: D. Sanders, "The Implications of the Guerin Decision" (Indians and the Law II: Vancouver, B.C. January 26, 1985). 140  See: DIAND "INFORMATION" (Ottawa: Indian and Northern Affairs, 1987)  116 entitled  to  hold  and  are  competent  to wield,"  the  Crown's  responsibility to oversee their actions and decisions is decreased in a manner proportionate to the band's independence and expertise.141 In some situations, like management of resources and administration of moneys, the fiduciary obligation will end when responsibility is transferred to bands objectively judged competent to wield the power. In other areas like interference with aboriginal or treaty rights, the Crown's fiduciary obligations will always exist. Furthermore, for DIAND to remain in a state of indecision as to how to proceed in the future forces First Nations to solve their disputes in the context of legal rights. This is contrary to the message sent in Sparrow where the Court stated that s. 35 "provides a solid constitutional base on which subsequent negotiations can take place."  142  Sparrow actually sends out mixed messages. On  the one hand the case says that the grievances of aboriginal peoples  are  best  defined  in  the  political  arena  through  negotiations. On the other hand, it says that if the government does not respond to the demands of native people the Courts are willing to take an active role in judicial policy making.  If  anything can be said with certainty it is that the courts might well intervene when they feel that the government has behaved badly toward aboriginal people and in such circumstances, the courts may be prepared to create new categories of legal obligations. Ian 141  Pratte and McMurty, p. 27-28.  142  Sparrow, p. 1105.  117 Binnie captures this thought succinctly: The court has used the occasion to make comments seemingly designed less to clarify the law than to drive governments and Aboriginal organizations alike into negotiations for fear of what curial thunderbolts the S.C. might hurl in future s. 35 143  cases.'°  I f Binnie i s c o r r e c t then DIAND bureaucrats cannot afford t o remain i n a s t a t e of i n e r t i a . Throughout t h i s  chapter  I have attempted  boundaries of t h e f i d u c i a r y concept.  t o explore  the  I s the sui generis fiduciary  concept a constant d i s c e r n i b l e in a few s p e c i f i c s i t u a t i o n s or does i t encompasses varying standards t h a t imbue a l l a s p e c t s of CrownAboriginal i n t e r a c t i o n ?  Even a f t e r an extensive review no c l e a r  answers a r e a v a i l a b l e .  At t h i s s t a g e , t h e concept of t h e s u i  generis fiduciary  relationship  is s t i l l  embryonic.  Despite a  growing body of case law r e l a t i v e l y l i t t l e guidance i s a v a i l a b l e as t o what t h e l i m i t s a r e . unpredictability vehicle  to  of case law a s t a t u t e would be a  defining  responsibility.144  Donovan Waters suggests t h a t given t h e  In  the  shape  light  of  and  scope  of  the  the c o n s t i t u t i o n a l  preferable fiduciary initiatives  B i n n i e , p . 219. Although Binnie s e e s Sparrow as d e f i n i t e l y weighted a g a i n s t government he p e r c e i v e s t h e d e c i s i o n a s n o t b e i n g a b l e t o meet most of a b o r i g i n a l p e o p l e ' s a s p i r a t i o n s . Thus, i n B i n n i e " s o p i n i o n , Sparrow a l s o f o r c e s a b o r i g i n a l t o t h e b a r g a i n i n g t a b l e i n f e a r of what t h e Courts might not do f o r them. Donovan Waters, "New D i r e c t i o n s On The Employment of E q u i t a b l e D o c t r i n e s : The Canadian E x p e r i e n c e " p a p e r p r e s e n t e d a t The I n t e r n a t i o n a l Symposium of T r u s t , E q u i t y and F i d u c i a r y R e l a t i o n s h i p s , U n i v e r s i t y of V i c t o r i a , V i c t o r i a , B r i t i s h Columbia, February 1 4 - 1 7 , 1988.  118 presently confronting Canada's layers of governments that prospect seems improbable and unmanageable.  Consequently the courts are  once again left as policy makers, responsible for elaborating or refining the fiduciary concept on a case by case basis. The fiduciary concept has been referred to as both "the sleeping giant"145 and "the dreaded F-word."  U6  A burgeoning  jurisprudence indicates that native groups are attempting to wake a potential giant.  As for Crown representatives, their sensitive  ears are not likely to get any rest. An expanded fiduciary concept is supported by Sparrow, related case law, historical background, and the Common Law.  Despite these influences there still remains  no certainty as to how far the fiduciary relationship extends or how the federal government should carry out its obligations.  For  First Nations and the courts the future is ripe with possibilities. Whether or not the prevailing system of liberal legalism can effectively  metabolize  the  many  possibilities,  silences,  ambiguities and inconsistencies inherent in the Sparrow doctrine remains to be seen.  It is to that topic I now turn.  146  Mark Ellis, preface.  146  Globe and Mail, September 11, 1991.  CHAPTER 3 THE FIDUCIARY CONCEPT: EXISTING LIMITATIONS  As a result of the Supreme Court's decision in R. v. Sparrow  1  the  fiduciary  obligation  doctrine  has  been  significantly expanded. On its facts the decision is limited to legislative  interference  with  fishing  rights, however  the  principles enunciated in the case can be extrapolated to create a general fiduciary duty to cover a myriad of Crown-aboriginal relationships.  The  Supreme  Court's  affiliation  with  the  fiduciary concept began in 1984 when through Guerin v. R^. 2 the Court enunciated the principle that there is a Crown-aboriginal fiduciary category in the area of government administration of surrendered reserve land. In 1990 the Supreme Court through Sparrow extended the fiduciary category to interference with entrenched aboriginal rights.  Based on this expansion it is  arguable that native groups have been given an important legal tool which can be used to address their grievances. However the observations of Audre Lorde, as referred to in the introductory chapter, should not be forgotten.  In relation to the law  reform projects of liberal feminists Lorde writes: What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means only the most narrow perimeters  1  2  [1990] 1 S.C.R. 1075. [1984] 2 S.C.R. 335.  120 of change are possible and allowable.3 The fiduciary concept hails from the tradition of equity and is increasingly becoming a standard legal tool in many areas of law apart from law affecting aboriginal people.4  Following Lorde's  thinking, few positive results should be anticipated if a traditional legal concept like "fiduciary" is adopted as a means for social change.  As she poignantly writes, "The master's  tools will never dismantle the master's house." 5 The purpose of this chapter is to adopt a more critical approach to the court created fiduciary obligations and explore the possible  limitations of reliance on the concept as a  strategy for social change.  In Canada aboriginal people often  face shocking social inequality.  In the past the legal system  has provided a forum for pursuing social justice as native groups have been extremely litigious in an attempt to settle their grievances.  Traditional legal concepts and mechanisms  have been utilized to advance social change.  For example, a  discourse of aboriginal rights and aboriginal title has provided some qualified victories but also staggering defeats. 6  In his  Audre Lorde, "The Master's Tools Will Never Dismantle the Master's House" in A. Lorde Sister Outsider (Trumansburg, New York: The Crossing Press, 1984)., p. 110. 4  Most recently the Supreme Court extended fiduciary categories to include moral business dealings between two mining companies. See Lac Minerals Ltd. v. International Coronal Resources Ltd. 61 D.L.R. (4th) 14. 6  6  Ibid., p. 112.  Calder et al. v. Attorney General of B.C.. [1973] 1 S.C.R. 313, is generally considered a victory yet the recognition of aboriginal title is adopted by only three members of the court. Recognition of aboriginal title was a political decision rather than a court imposed decision. Delqamuukw v. A.G. of British Columbia 79 D.L.R. (4th) 185, exemplifies the failure of the  121 book The Charter of Rights and the Legalization of Politics in Canada,  Michael Mandel argues that law has failed as an  instrument to advance the position of natives from the bottommost level of the social hierarchy.7  One wonders whether the  fiduciary concept can break this pattern.  If not, why not?  In attempting to answer the preceding chapter explores three ideas:  question this  the limitations inherent in the  Sparrow decision; the relationship of law and politics; and the relationship between law and ideology. focuses on the  Part I of this Chapter  Sparrow decision in order to expose some of the  restrictions built into the text. Part II and Part III examine where these restrictions originate focusing on law and politics and law and ideology. In the law and politics section the Delqamuukw decision is presented as an example of how the fiduciary concept may be manipulated to meet a particular j udge's agenda.  legal system -to meet aboriginal demands,  7  Michael Mandel1, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989), p. 253.  122 (i) Unjustifiable Limitations  At first glance the language and concepts used in Sparrow appear to provide unlimited possibilities.  Intriguing language  like "holding the Crown to a high standard of honourable dealing"  8  and "sensitivity and respect for the rights of  aboriginal peoples on behalf of the government, courts and indeed all Canadians," 9 raises expectations that the fiduciary concept may be able to resolve aboriginal grievances and fulfil aboriginal  expectations.  From a critical perspective  Court's progressive utterings ring hollow.  the  The effect of  Sparrow, and particularly the justification test, facilitates yet another infiltration of government control into the lives of aboriginal Canadians.  Firstly the fiduciary concept is the  means by which the Court signals the appropriateness of limiting aboriginal rights.  Secondly by using fiduciary language to  restrain s. 35 rights, the Court camouflages the conferring of power on the federal government in salubrious language. Instead of restraining the federal government from interfering with native issues the effect is to make the further empowerment of the  federal  government  appear  like  a  necessary  and  good  development. One particular sweeping statement found in Sparrow provides the  richest  source  8  Sparrow, p. 1110.  9  Ibid., p. 1119.  for  speculating  about  the  breadth  of  123 fiduciary responsibilities: ...the Government has the responsibility to act in a fiduciary capacity with regard to aboriginal peoples. The relationship between the Government and aboriginal is trust-like rather than adversarial and contemporary  recognition  and affirmation  of aboriginal  rights  must  be defined in light of this historic relationship. 10  The highlighted words can be perceived as the *fill in the blanks' section, and the message received by First Nations is *replace with  Crown-Indian  relationship  of choice.•  As  attractive and plausible as this option may appear, a closer analysis reveals that the judiciary have already closed several windows of opportunity. Given  that  an  excess  of  restrictions  accompany  the  fiduciary concept, it is inaccurate to describe Sparrow as carte blanche, or  A  wish  list1  providing  a  peoples.  The phrase: "To give with one hand and take with the  other," best describes the Court's actions.  for aboriginal  By adopting a  justification analysis the Court imported into s. 35 the concept that treaty and aboriginal rights are not absolute: Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act,1867. These powers, must however now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. 11  10  Sparrow, p. 1108.  11  Ibid. , p. 1109.  124 This limiting approach follows the lead of the British Columbia Court of Appeal in Sparrow. 13  Agawa  .  12  and the Ontario Court in  In those decisions the courts opined that s. 35  rights could not be divorced from the realities of life in present day Canada but must be balanced against competing societal interests. In a case comment on Sparrow Thomas Berger attempts to uncover the origins of the limitations.  He points out that s.  3 5 rights do not come within the Charter, and therefore are not subject  to  sections  1  or  33.  In  his  view  the  Court  unjustifiably invented the limitations "out of thin air." u  He  further points out that reading compelling state interests into s. 35 rights inappropriately tracks American jurisprudence.  In  American case law even though the American Bill of Rights has no equivalent to s. 1 of the Charter, limits are often imposed on the rights entrenched under the U.S. Constitution. According to Berger it is un-Canadian to import the countervailing state interest test into s. 35 where so doing appears contrary to Constitutional textual interpretation. 12  (1986) 36 D.L.R. (4th).  13  (1988) 65 O.R. (2d) 505.  14 16  15  Thomas Berger, "R. v. Sparrow; Case Comment" 23 U.B.C. Law Review 606.  . Ian Binnie directs similar and more extensive criticism at the Court in his article, "The Sparrow Doctrine: Beginning of the End or End of the Beginning?" (1990) 15 Queen's Law Journal 217.Also see: Elliot, David. "In the Wake of Sparrow: A New Department of Fisheries?" 40 University of New Brunswick Law Journal 23. For a rationalisation of why Courts should impose limitations on aboriginal and treaty rights see Bryan Schwartz, First Principles - Second Thoughts (Montreal, Institute for Research on Public Policy, 1986), pp. 359-360.  125  (ii)  Law and Politics  By linking government responsibilities to the fiduciary concept the Supreme Court has utilized one of the most amorphous and flexible concepts known to law.  On the subject of  fiduciary obligations the words of Justice La Forest as found in Lac Mineral v.  International  Corona Resources  are worth  repeating: Indeed, the term fiduciary has been described as "one of the most ill-defined, if not altogether misleading terms in our law." It has been said that the fiduciary relationship is a "concept in search of a principle." Some have suggested that the principle governing fiduciary obligations may indeed by undefinable, while other have doubted whether there can be any "universal, all purpose definition of the fiduciary relationship." 16 (Citations omitted) There would appear to be few legal concepts less conceptually certain, yet as a result of Sparrow such imprecision now lays at the heart of the law concerning aboriginal and treaty rights. Just as the sui generis aboriginal title concept is solely a creation of the Supreme Court by relying on fiduciary to define Crown-aboriginal relationships, the Court has created another empty concept which judges can fill with what they please.17 Instead of calling it a "fiduciary relationship," the  16 17  61 D.L.R. (4th) 14 (S.C.C.) at 26.  The sui generis concept is a Supreme Court favourite. In Guerin aboriginal title was characterized as sui generis. In Simon v. The Queen [1985] 2 S.C.R. 3877, Crown-aboriginal treaties were so labelled. Sparrow continues the tradition connecting the concept to both aboriginal rights and  126 Court might as well have called the concept "judicial product 146D", because, like the changing content of rights values, the content of the fiduciary relationship may sway in relation to prevailing values or the political leanings of the bench. Regarding the convergence of law and politics much can be learned from those academics who have studied the indeterminacy of Charter values.  Petter and Hutchinson have analyzed cases  concerned with equality, freedom of association and freedom of expression to illustrate that when rights are before the court their interpretation is a masked political struggle: They are contested concepts whose interpretation is a major and elusive preoccupation of political debate. They are like empty sacks that cannot stand up on their own18 until they have been filled with political content. In a similar vein Michael Mandel argues that the indeterminacy of Charter rights entrenches "legalized politics" and renders the Charter incapable of redressing the balance of power but rather legitimates it. are striking. of  19  Comparisons to the fiduciary concept  Like the content of Charter rights, the content  fiduciary standards is anything but clear.  malleable concept prone to judicial manipulation.  It is a Judicial  the Crown-aboriginal fiduciary relationship. A Latin term, the phrase refers to a thing that is "of its own kind or class; peculiar" Black' s Law Dictionary, p. 1286. 18 Andrew Petter and Allan Hutchinson, "Rights in Conflict: The Dilemma of Charter Legitimacy" Vol. 23:3 U.B.C. Law Review 531, p. 537. 19 Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989), p. 253.  127 interpretation  of  individual  rights  has  been  a  site  of  convergence of law and politics, a recent decision out of the British Columbia Supreme Court indicates that the fiduciary relationship unfortunately follows suit. How drastically the fiduciary concept can be affected by judicial temperment is illustrated by Chief Justice McEachern's decision in Delgamuukw v. R..  20  Although generally thought of  as a land claims case, Justice McEachern also considered whether or not any fiduciary obligation could be imposed upon the Crown. In his now infamous decision, the Chief Justice decided that all of the aboriginal rights of the plaintiff had been extinguished. Surprisingly he then found that the Crown was subject to fiduciary duties by virtue of the relationship between the Crown and the Indians during the colonial period: The unilateral extinguishment of aboriginal interests accompanied by the Crown's promise and the general obligation of the Crown to care for its aboriginal peoples created a legally enforceable fiduciary or trust like duty or obligation upon the Crown to ensure there will be no arbitrary interference with aboriginals.21 The Chief Justice derived the fiduciary duty from the promise made by those who, in the name of the Crown, told aboriginal people "that they might freely exercise and enjoy the rights of fishing the lakes and rivers and of hunting over all unoccupied  20  21  79 D.L.R. (4th) 185. Ibid. , at 482.  128 lands in the colony." effect  of  22  extinguishment  In drawing an analogy between the of  aboriginal  rights  in  British  Columbia to the surrender requirement from Guerin, McEachern, J. concluded that a unilateral extinguishment of a legal right accompanied by a promise could "hardly be less effective than a surrender as a basis for fiduciary obligation."  23  He does not  locate the source of the fiduciary obligation in the matrix of history and legislation as does the Supreme Court in Sparrow, but rather requires a triggering device to invoke government responsibilites..  Thus, Justice McEachern's interpretation is  hostile to any interpretation of the fiduciary relationship as constantly present but with elastic standards. To  summarize, McEachern  extinguishment  of  aboriginal  J.  held  that  interests  the  unilateral  accompanied  by  the  Crown's promise and the general obligation of the Crown to care for  its  aboriginal  peoples  created  a  legally  enforceable  fiduciary or trust-like duty upon the Crown to ensure that there will be no arbitrary interference with aboriginal sustenance practices in the Territory under dispute.  The honour of the  Crown imposes an obligation of fair dealing upon the province which is enforceable by law. Accordingly, the Plaintiffs were entitled to a Declaration confirming their legal right to use vacant Crown land for aboriginal sustenance purposes subject to the general laws of the province. 22  Ibid., p. 479.  23  Ibid., p. 482.  129 For anyone attempting to expand the scope of fiduciary duties Chief Justice McEachern's decision is partially positive in  that  he  envisages  a  fiduciary  obligation  existing  independently outside the confines of the Indian Act, and outside s. 35 of the Constitution.  Lamentably he is unprepared  to give the obligation any meaningful content.  He restricts  aboriginal use of land to subsistence or cultural purposes only, and only "until such time as the land is dedicated to another purpose."  24  Under his version of the fiduciary relationship  the government must always retain the right to alienate land on which the First Nation has hunting and collecting rights. However if the land reverts to the Crown the First Nation can once again use it. His example is bleak: As aboriginal rights were capable of modernisation, so should the obligations and benefits of this duty be flexible to meet changing conditions. Land that is conveyed away but later returned to the Crown, becomes again useable by Indians. Crown lands that are leased or licences, such as for clearcut logging, to use an extreme example, becomes useable again after logging operations are completed or abandoned.25 It is impossible to conceive how clearcut land could be useful to any aboriginal group. In an uncharacteristic moment of judicial accommodation Justice McEachern states that government action that removes land from aboriginal use should not be done "arbitrarily" but  Ibid., p. 482.  130 rather only in accordance with the fiduciary relationship.26 He then outlines six propositions to guide the Crown in living up to its fiduciary duties. They can be summarized as follows: - the province has the legal right to alienate interests in the territory where aboriginal interests continue - when legislating or implementing policy vis a vis Indian territory aboriginal interests should be kept in mind. Reasonable consultation is expected but consultation does not include a native veto -where interference with sustenance and cultural activities is inevitable suitable alternative arrangements should be made - when aboriginal interests are interfered with a balancing of interests representing all citizens and the Indians should be equally considered -regarding sustenance activities priority to Indians should generally, but not always occur. Finally, he concludes by warning that Natives should not bring legal proceedings to challenge Crown activities which interfere with their sustenance and cultural rights. 27 In effect, McEachern, C.J. has gutted the concept of Crown fiduciary responsibility.  Any laudable points are rendered  inconsequential by the addition of qualifications.  The extent  of his campaign is evident in his attempt to deprive future plaintiffs of any justiciable remedy. As Petter and Hutchinson might say, McEachern has taken an "empty sack that cannot stand up on its own" and filled it with his personal "political content."  28  Future  litigation  involving  Crown-aboriginal  fiduciary relationships will depend on two key questions: "who  Ibid., pp. 488-491. Petter and Hutchinson, p. 537.  131 fills it?" and "with what?"  132 (iii)  Expanded Judicial Discretion:  Homogeneity, Cultural  Difference and Balancing Tests  As a result of the extraordinarily subjective collection of criteria which comprise the justification test a myriad of opportunities  for  the  abuse  judicial  discretion  has  been  unleashed by the Sparrow decision. Through a complicated series of mandatory considerations the Supreme Court has expanded the judiciaries discretionary power. As David Elliot writes, the Court has created for itself a "new and questionable role as a constitutional department of fisheries." 29 Elliot worries that the Court is moving into fields that require administrative expertise and negotiated arrangements, something the courts cannot provide. The list of consideration which the Court has fashioned for itself seems endless: What are the criteria to determine if legislative objectives which infringe aboriginal rights are valid? automatically required?  Are conservation and management objectives  valid?  What  level  of  state  conservation  is  The court held that the "public interest" was too  vague to be workable. How then will the Court assess the validity of infringing regulations? How  will  it  be  determined  if  What about consultation? there  has  been  adequate  consultation with the aboriginal group in question? Do all conservation measure require consultation? What amounts to an 29 David Elliot. "In the Wake of Sparrow: A New Department of Fisheries?" 40 University of New Brunswick Law Journal 23, p. 42.  133 "unreasonable" limitation of an aboriginal right? How does a court  measure  undue  hardship?  With  these  and  other  discretionary issues the Supreme Court has opened the door for an expanded role for the courts in complex issues which touch the lives of aboriginal peoples. Given the greatly expanded role of the courts and the amount of justiciable regulation which can be expected, two issues  must  be considered.  First  is the problem  of the  uniformity of the judiciary and expectations that courts will be able to competently balance aboriginal rights against government responsibilities.  Section 35's ultimate  impact  (including  constitutionally entrenched fiduciary standards) is dependent upon the political nature of the judicial system that is charged with its interpretation. A second issue centres around the degree to which courts are prepared to recognize cultural difference within the context of s. 35. It is unclear why we should trust and privilege the value judgments of an elite group of predominantly white, upper middle-class, male judges.  Peter Hogg explains why we should  not: The judiciary's background is not broadly r e p r e s e n t a t i v e of t h e p o p u l a t i o n : they a r e r e c r u i t e d e x c l u s i v e l y from t h e small c l a s s of successful; middle-aged lawyers, they do not n e c e s s a r i l y have much knowledge of or e x p e r t i s e i n p u b l i c a f f a i r s , and a f t e r appointment they a r e expected t o remain aloof from most p u b l i c i s s u e s . 30  P.W. Hogg, "Is t h e Supreme Court of Canada Biased i n C o n s t i t u t i o n a l Cases? (1979) 57 Canadian Bar Review 721, a t 722.  134 Given their homogeneity and the institutional ethos in which they work, it seems doubtful that the judiciary is trustworthy to balance aboriginal rights against government responsibilities and to give meaningful content to either. The ultimate impact of the fiduciary concept will depend upon the beliefs and politics of a judicial system which is charged with its interpretation. Andrew Petter has pointed out that because of their personal attributes and institutional ethos judges cannot but reinforce dominant cultural norms.31 There  are  judicial  decisions  which  are  on  their  face  progressive, however on a deeper level it seems a virtual impossibility for judges to transcend the influences of class, race,  education  and  profession  which  they  have  received.  Beliefs are not chosen they are held; to realize this and escape the consequences takes incredible effort.  As S. Fish has  written an "interpreter is embedded in a structure of beliefs of which his judgments are an extension."  32  There is nothing  about the Canadian judiciary to suggest that they possess the experience the training or the disposition to comprehend the social impact of claims made to them under the head of fiduciary responsibilities, let alone to resolve those claims in ways that  31  Andrew Petter, "The Politics of the Charter" (1986) Sup. Ct. Law Rev. 473. Also see P. Monahan and A. Petter, ""Developments in Constitutional Law" (1987) 9 Supreme Court Law Review 76. 32  S. Fish. "Wrong Again" (1983) 62 Texas Law Review 200 at 312.  135 promote or even p r o t e c t t h e i n t e r e s t s of a b o r i g i n a l groups. 3 3 A r e l a t e d i s s u e t o t h e homogeneity of t h e j u d i c i a r y i s t h e degree  to  which c o u r t s  a r e prepared  to  d i f f e r e n c e within t h e context of s . 35.  recognize  cultural  In an a r t i c l e d e a l i n g  with t h e c u l t u r a l a u t h o r i t y of judges Chris Tennant a s k s , "Who has given judges a u t h o r i t y t o be s o c i a l c r i t i c s of a b o r i g i n a l societies?"34  With s . 35, as with t h e r i g h t s enumerated in t h e  Canadian Charter of Rights and Freedoms, judges a r e c a l l e d upon t o be s o c i a l rights.  critics  in i n t e r p r e t i n g  Through t h e p o l i t i c a l  an enumerated s e t  process  of  entrenching  of the  Charter t h e j u d i c i a r y was given t h e a u t h o r i t y t o review laws which were not c o n s i s t e n t with Charter v a l u e s . In t h e context of s . 1 t h e j u d i c i a r y was a l s o given t h e r o l e of a r b i t e r between r i g h t s and freedoms and the i n t e r e s t s of s o c i e t y as a whole. Thus in c o n s t i t u t i o n a l d i s p u t e s t h e r o l e of t h e judge i s articulate another,  competing and then  interests,  balance  these  against  decide which  interest  ought t o  to one  prevail.  Generally t h e r e i s l i t t l e reason t o t r u s t judges 1 determinations of what a r e reasonable or f a i r  solutions to  p u b l i c p o l i c y , balancing of i n t e r e s t s i s s u e s .  controversial, In r e l a t i o n t o  For further d i s c u s s i o n s of j u d i c i a l b i a s s e e Mahoney and Martin ( e d s . ) Equality and J u d i c i a l N e u t r a l i t y (Toronto: Carswell. 1987); Michael Mandel, The Charter of Rights and t h e L e g a l i z a t i o n of P o l i t i c s i n Canada (Toronto: Wall and Thompson, 1989); Kairys, David ( e d . ) . The P o l i t i c s o f Law: A P r o g r e s s i v e Critique (Revised edition)(New York: Pantheon Books, 1990); Joel Bakan, "Constitutional Arguments: I n t e r p r e t a t i o n and Legitimacy i n Canadian C o n s t i t u t i o n a l Thought" (1989) 27 Osgoode Hall Law Journal 123. 34 Chris Tennant, " J u s t i f i c a t i o n and Cultural Authority i n s . 35(1) of t h e C o n s t i t u t i o n Act, 1982: R. v . Sparrow" (1991) 14 Dalhousie Law Journal 372, p . 384.  136 aboriginal rights and aboriginal societies the legitimacy of judicial review becomes especially suspect. In Sparrow the Court acknowledges the danger of nonaboriginal  judges  advising that  misunderstanding  aboriginal  culture  by  aboriginal rights cannot be subsumed within  traditional common law concepts: Fishing rights are not traditional property rights... Courts must be careful to avoid the application of traditional common law concepts of property...it is possible, and indeed, crucial, to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake. 35 Clearly this is a genuine attempt at cultural sensitivity, yet whether  or  not  it  is possible  for  judges  to  understand  aboriginal culture in anything other than the dominant society's terms remains a controversial issue. Mary Ellen Turpell argues they cannot: Can a judge know a value which is part of an Aboriginal culture and not of her own? The extent to which anyone can know the basic differences as opposed to identifying difference, especially when functioning in an institutional role defined as deciding the supreme law of a state is a fundamental problem for constitutional analysis. This is especially the case with respect to choices regarding different cultural systems because the knowledge structures valued by the Canadian judicial system are fundamentally different from the knowledge structures embraced by Aboriginal peoples. 36 Of course a larger number of aboriginal judges would help remedy 36 36  Sparrow, p. 1112.  Mary Ellen, Turpell, "Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differences" (1989/90) 6 Canadian Human Rights Yearbook 3 at p. 24.  137 the problem. the  For non-aboriginal judges a partial answer is for  judiciary to resist the tendency to interpret aboriginal  culture through the reference points of the dominant society. Not all judges have failed in the attempt to provide a place for the perspective of First Nations in Canadian law. A genuine accommodation of difference can be found in the minority reasons of  Justice  0 1 Sullivan  in  Dumont  v.  A.G.  Canada  37  .  In  determining whether the Manitoba Metis had standing to pursue their claims against the Canadian government Justice 01Sullivan engages in a remarkable discussion of the conflict between individual rights and collective rights and the legal system's inability to provide accommodations. A similar accommodation of differing worldviews is found in  R. v. Ashini  38  where Justice  Igloliorte of the Newfoundland Provincial Courts rejects the common law viewpoint of land as personal property and refuses to convict Innu protestors charged with trespassing. Unfortunately  not  all  judges  are  themselves of their cultural authority.  inclined  to  divest  In their article "The  Cultural Effects of Judicial Bias". J. Ryan, and B. Ominayak document a series of judgements handed down in response to actions commenced by the Lubicon Lake Cree of northern Alberta to stop oil and gas development on what they referred to as their traditional territories.  37 38  In their view the Crees court  52 Manitoba Reports (2d) 291 (C.A.).  R. v. Ashini et al. (1989) Atlantic Provincial Reports 318. (Nfld. Prov. Ct.)  138 loss was caused by the judges inability to understand the importance of the Cree's traditional lifestyle.  Using a non-  aboriginal value system the Courts determined that it was in the greater public  interest that substantial  economic activity  proceed and the loss of the plaintiff•s culture and society was not  significant  compared  to  the  gains  of  industry  and  government.39 Sparrow is comparable to the Lubicon cases in that the justification test sets the stage for the judicial balancing, or pitting,  of  aboriginal  population as a whole.  rights  against  the  rights  of  the  By establishing a "compelling and  substantial legislative objective" test the Court has made it almost impossible to know what level of justification will be accepted by Courts in any particular case. Too many overlapping and conflicting interests are bound to come into play. This point was made by the British Columbia Court of Appeal: Any definition of the existing right must take into account that it exists in the context of an industrial society with all of its complexities and competing interests. The existing right in 1982 was one which had long been subject to regulation by the federal government. It must continue to be so because only government can regulate with due regard to the interests of all.40 By constructing a justification test the Supreme Court has tipped the balance against the often holistic values of native  B. Ominayak and J. Ryan, "The Cultural Effects of Judicial Bias" in S. Martin and K. Maboney (eds.) Equality and Judicial Neutrality (Toronto: Carswell, 1987), p. 346. 36 D.L.R. (4th) 246 (B.C.C.A.) at 272.  139 culture. Yet, in the legal form the process will appear neutral and objective.  David Kairys' observation is trenchant:  Balancing tests where judges decided which of two or more conflicting policies or interests will predominate are presented and applied as if there were objective and neutral answers, as if it were possible to perform such a balance independent of political, social and personal values that vary among our people and to a less extent among our judges. 41 When aboriginal rights are pitted against a complex industrial society the results are all too predictable.  As the judiciary  is presently constituted (i.e. predominantly white male, vested and upper middle class) it is probable that most judges will perceive too many conflicting political and economic interests to broadly  interpret aboriginal rights or expansive Crown  obligations.  To hand the judiciary another opportunity to  balance rights is to create an uneven playing field. Ian Binnie makes the point well: The Court will have to balance airports against gathering rights, jobs against caribou, oil selfsufficiency against qualitative changes in a traditional way of life.2 The standards applied will be those which reflect the biases of a judiciary steeped in the ideologies of capitalism, progress and  development. As  knowledge  structures  Chris  Tennant  valued  by  points  the  out, given  Canadian  the  judiciary,  aboriginal culture will be understood through tropes like "noble 41  Kairys, p. 2. Binnie, 232.  140 savage,"  "traditional  "modernization."  43  lifestyle"  In h i s  "civilization"  book Liberalism,  and  Community and  Culture, Will Kymlicka f u r t h e r develops t h e theme of imbalance asking how the j u d i c i a r y can weigh competing i n t e r e s t s "when t h e e q u i t i e s do not occur on t h e same p l a n e . "  44  He gives  the  example of a F i r s t Nation which has a way of l i f e t h a t r e q u i r e s t h a t a l a r g e s e c t i o n of land, valued by many groups in s o c i e t y , be s e t a s i d e and l e f t undeveloped, even though t h e u t i l i t y of t h i s can only be measured according t o F i r s t Nation v a l u e s . According t o Kymlicka i t would be u n f a i r  t o ask  aboriginal  people t o formulate t h e i r l i f e s t y l e s with a view t o t h e c o s t s imposed on o t h e r s as measured by t h e market.  As t h e r e s u l t s of  Delgamuukw i l l u s t r a t e Kymlicka's hypothesis i s not f a r fetched. Chief  Justice  concept competing  reveals  McEachern's that  aboriginal  in  interpretation his  interest.  view  of  the  development  Furthermore,  fiduciary trumps  his  any  judgment  i l l u s t r a t e s t h e m a l l e a b i l i t y of t h e f i d u c i a r y concept and t h e danger of t h e j u d i c i a r y transforming i t  i n t o an  ineffectual  The problems a s s o c i a t e d with judging a b o r i g i n a l c u l t u r e i n t h e terms o f dominant c u l t u r a l p e r s p e c t i v e s was r e c e n t l y emphasized i n Delgamuukw where C.J. McEachern's commented on t r a d i t i o n a l Git'ksan and Wet'suwet'en lifestyles: . . . i t would not be accurate t o assume t h a t . . . p r e contact e x i s t e n c e i n the t e r r i t o r y was i n t h e l e a s t bit idyllic....The plaintiffs had no written language, no horses or wheeled v e h i c l e s , s l a v e r y and s t a r v a t i o n was not uncommon, wars with neighbouring peoples were common, and t h e r e i s no doubt, t o quote Hobbes t h a t a b o r i g i n a l l i f e i n the t e r r i t o r y was, a t b e s t , "nasty, b r u t i s h and s h o r t . " 44  Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon P r e s s , 1989), p . 187.  141 conceptual tool. A final limitation accompanying the fiduciary concept is the likelihood that the judiciary will be reluctant to read important aboriginal rights into s. 35. Given the minimal case law in the area it is not yet clear if limits on treaty and aboriginal rights will be set through restrictive definition, or through judicial regulation.  In Sparrow the court appears to  take aboriginal and treaty rights seriously and imposes a rigorous test when such rights are infringed. be  remembered  that  in  Sparrow  the  However, it must  government•s  fiduciary  obligations are in relation to sustenance food rights, nothing more. The Supreme Court restricted its analysis to food fishing, even though, as Binnie points out, it was the Musqueam expansion from a food fishery to a commercial fishery that led to the confrontation between the band and the fishery authorities in the first place.45  What happens when the rights asserted are  economically more valuable?  The aboriginal position is that  aboriginal rights are not limited to just gathering, hunting and fishing  but  rather  include rights  to determine  their own  political, cultural, economic and social order. As a result of Sparrow considerable responsibilities are placed on governments when an aboriginal right is in question. The judiciary may be inclined to place onerous burdens on governments when the subject matter is relatively innocuous, but a different set of factors may operate when the rights concern commercial or 45  Binnie, p. 236.  142 economic support systems. If, for example, a r i g h t t o gaming was a s s e r t e d , the Court may refuse t o read i t i n t o s . 35, and t h e burden of t h e Sparrow t e s t w i l l be a f a c t o r i n t h e r e f u s a l .  46  I r o n i c a l l y , t h e l i m i t a t i o n s described above operate in t h e context of a "purposive" i n t e r p r e t a t i o n of s . 35 r i g h t s . Sparrow  the  affirmation  Court  wrote  that  when  the  purposes  of a b o r i g i n a l r i g h t s a r e considered,  47  of  i t is  In the  clear  " t h a t a generous, l i b e r a l i n t e r p r e t a t i o n of t h e words i n t h e c o n s t i t u t i o n a l provision i s demanded."  48  Can i t t r u l y be s a i d  t h a t t h e i n t r o d u c t i o n of a "reasonable l i m i t " i n t o a s e c t i o n of t h e C o n s t i t u t i o n formerly immune from i t i s a generous reading of s e c t i o n 35?  Further,  i s i t generous t o l i m i t  r i g h t s t o sustenance r i g h t s ?  I t depends on who i s  aboriginal defining  generosity.  46 By gaming I mean t h e r i g h t t o conduct gambling on Indian r e s e r v e s as a means of producing revenue. Gaming can be characterized as the contemporary e x e r c i s e of t r a d i t i o n a l a b o r i g i n a l r i g h t t o p a r t i c i p a t e i n games of chance. 47  In i t s e a r l y Charter d e c i s i o n s t h e Supreme Court i n s i s t e d t h a t purposive reasoning was t h e appropriate technique f o r applying fundamental r i g h t s and freedoms. A s t r i c t construction approach was t o be avoided, and i n s t e a d "broad l i b e r a l and purposive" i n t e r p r e t a t i o n s were t o be engaged. See: Law S o c i e t y of Upper Canada v. Skapinker (1984) 9 D.L.R. (4th) 161 a t 1 6 8 . ; Hunter v . Southam (1984), 11 D.L.R. (4th) 641 a t 649. 48  Sparrow, p . 1106.  143 (iv)  Law and Ideology  Where do t h e l i m i t a t i o n s found in Sparrow o r i g i n a t e ?  Part  of t h e answer can be found in the operation of law as ideology. The problem with Crown-Aboriginal f i d u c i a r y o b l i g a t i o n s i s not simply t h a t i t i s an empty concept i n t o which both p r o g r e s s i v e and r e g r e s s i v e forces can i n s e r t c o n t e n t .  Rather, i t i s a l s o a  problem of dominant ideologies t h a t tend t o operate  giving  substance t o concepts. By studying i d e o l o g i c a l influences i t i s p o s s i b l e t o a n t i c i p a t e what form t h e Crown-Aboriginal f i d u c i a r y r e l a t i o n s h i p w i l l take once i t has gone through t h e  judicial  system. The concept of ideology d e r i v e s from t h e Marxist idea t h a t r e f e r s t o systems of thought t h a t serve t h e i n t e r e s t s of dominant c l a s s e s . 4 9  According t o academics who have explored  t h e i d e o l o g i c a l function of law, t h e l e g a l system produces and reproduces  ideologies that  reinforce  h i s t o r i c a l l y excluded groups.  50  t h e marginalization  of  Sumner explains t h a t through  ideology the law functions t o l e g i t i m a t e t h e e x i s t i n g order:  The I t a l i a n Marxist Antonio Gramsci expanded the concept by focusing on hegemony and counter-hegemony as p r o c e s s e s through which i d e o l o g i c a l dominance i s secured w i t h i n c i v i l s o c i e t y . See E. Greer, "Antonio Gramsci and Legal Hegemony" i n D. Kairys ( e d . ) The P o l i t i c s of Law (New York: Pantheon Books, 1982), p . 304. 60 See: Alan Hunt, "The Ideology of Law: Advances and Problems i n Recent A p p l i c a t i o n s of t h e Concept of Ideology t o t h e Analysis of Law" Law and S o c i e t y Review 19 (1985) 1; S. Gavigan, "Law Gender and Ideology" i n A. Bayefsky, ( e d . ) Legal Theory Meets Legal P r a c t i c e (Edmonton: Academic P r i n t i n g and P u b l i s h i n g , 1988). Colin Sumner, Reading I d e o l o g i e s : An I n v e s t i g a t i o n i n t o t h e Marxist Theory of Ideology and Law (London:Academic P r e s s , 1979).  144 The generic social function of law is to express, regulate and maintain the general nature of the dominant social relations of a social formation. It is therefore only natural that it does this through the discourse of general ideologies necessitated by the general forms of social relations. 51 For Sumner law entrenches inequality and domination in subtle and impenetrable ways: The law lies hidden beneath a heavy shroud of discourse, ritual and magic which proclaim the Wisdom and Justice of the Law. Once this shroud is torn into tatters that hegemonic bloc of classes and class fractions which sustain the rule of capital is in trouble because inequality and domination can only be justified mystically and that is precisely the ideological function of law. 52 Studying the ideological nature of law provides a sharper analytic tool, useful in the attempt to understand why law reform or ostensibly progressive doctrinal developments often do not produce the expected results.53  In the field of aboriginal  people and the law this means that when a new concept like "fiduciary lexicon  responsibilities"  constraining  is  ideological  introduced influences  into  the  should  legal  not be  ignored. The danger is that the legal system will absorb any  61  Sumner, p. 272.  52  Ibid. , p. 277.  63  Regarding the social inequality facing women, Carol Smart, a leading British feminist scholar, has pointed out the need to engage with law as discourse and ideology, in order "to expose law's pretensions to truth and thus to undermine its power." For Smart real social change cannot occur until law is exposed as both a site of ideological struggle as well as an instrument for the construction of dominant ideologies. See: Carol Smart, Feminism and the Power of Law (London: Routledge, 1989). Alan Hutchinson echoes Smart's thesis arguing that academics and practitioners should stop thinking about the legal process in instrumental terms and instead start to appreciate its discursive and ideological dimensions. See: Allan Hutchinson, "Telling Tales (Or Putting the Plural in Pluralism)" (1985) Osgoode Hall Law Journal 681.  145 progressive potential attached to the fiduciary concept and turn it into a means to perpetuate the continued marginalization of First Nation peoples. Shelly Gavigan has developed an analytical framework to explore how law and ideology interact: There are two levels of inquiry, which may be coextensive. The first is a question of identifying the ideological nature of the legal doctrine and principles: "equality," "best interests of the child," "community standards" and so on. The second, equally important, inquiry involves identifying the extent to which the judiciary itself employs ideological thought (which is formally external to the law) but which is then incorporated into legal doctrine and becomes virtually unassailable. 54 Thus, ideological analysis must be understood as operating at both conceptual and empirical levels.  Gavigan's framework  breaks down ideologies into the conceptual level ideologies) and the empirical  level  (dominant  (judicial ideologies).  "Dominant ideology" refers to systems or currents of generally accepted rights  ideas about society and and  responsibilities,  law  its character, including and  morality,  which  are  presented as natural, necessary, inevitable and unassailable. It is the "common sense" or "received wisdom" that is inculcated into society's members by knowledge producing institutions like schools, universities, mass media, law and religion.  55  An  easily grasped example is the almost universal acceptance of the  64  66  Gavigan, p. 87.  See: Joel Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (Nor What You Need)" in R. Devlin ed.) Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery Publications, 1991), p. 445.  146 nuclear family as the unquestioned unit on which society is built.56  Judicial ideology refers to the process by which the  judiciary  absorbs  ideological  thought  and  through  adjudicative process merges it with legal doctrine.  the  When the  authoritative voice of law speaks in legal principles, and therein incorporates ideological thought the result is to make the ideology almost unassailable. Traditionally, in typical fiduciary relationships there has always been the empowered and disempowered party. Conseguenlty, when the term "fiduciary" is used a set of ideological baggage inevitably travels along. It is almost impossible to escape the notions  of  dependency,  vulnerability  and  hierarchy  that  accompany such typical fiduciary relationships as trustee and a beneficiary of a trust, agent and principal, director of a company and the company, and a lawyer and client.  Tests for  recognizing the presence of a fiduciary relationship dwell on points of vulnerability and dependency. clearly  the  disempowered actions.  power and  holder, extremely  while  the  vulnerable  57  The fiduciary is  beneficiary to  the  remains  fiduciary's  When the principle is imposed onto Crown-aboriginal  relationships the image of the Crown standing to aboriginal  Feminist legal scholars and gay and lesbian legal scholars have recently started to develop analyses which point to the ideological construction of family as a site which perpetuates both sexism and homophobia. See: Didi Herman, "Are We Family? Lesbian Rights and Women's Liberation" (1990) 28 Osqoode Hall Law Journal 789. See especially Justice Wilson's enumerated tests in Frame v. Smith and Smith, [1987] 2 S.C.R. 99., at 136.  147 peoples as a guardian towards a ward dominates. This was t h e view expressed by Marshall C.J. of the United S t a t e s Supreme Court i n Cherokee Nations v. Georgia where he c h a r a c t e r i z e d Indian t r i b e s as "domestic dependent n a t i o n s " which were "in a state  of  pupillage"  and s t a t e d  that  their  relation  government "resembles t h a t of a ward t o a guardian."  to  the  58  C l e a r l y , t h e f i d u c i a r y concept i s steeped in notions of power, v u l n e r a b i l i t y , and i n e q u a l i t y .  Central t o t h e notion i s  t h e idea t h a t t h e f i d u c i a r y has power over t h e i n t e r e s t s of another and t h a t t h e beneficiary i s p e c u l i a r l y vulnerable t o or " a t t h e mercy" of power. 59  the fiduciary  holding t h e d i s c r e t i o n  or  Although t h i s c e r t a i n l y may be t r u e of many present  Crown-Indian r e l a t i o n s h i p s i t  i s not t h e goal of  aboriginal  self-government i n i t i a t i v e s . Native importance  groups of  have shown t h a t  language  and  discourse  i d e o l o g i c a l c o n s t r u c t i o n of knowledge. Constitutional negotiations,  they in  are  aware of  relation  to  the the  In t h e r e c e n t round of  Native groups were opposed t o t h e  idea of t h e dominant s o c i e t y "granting" s e l f  government and  i n s t e a d demanded a "recognition of t h e inherent r i g h t " t o s e l f  Cherokee Nation v. Georgia (1831) 30 U.S. (5 P e t . ) 1 reprinted i n Getches and Wilkinson, Federal Indian Law ( S t . Paul, Minnesota: West P u b l i s h i n g , 1986), p . 46, a t 47. 69  In h i s a r t i c l e "First Nation Self-Government and t h e Borders of the Canadian Legal Imagination" (1991) 36 McGill Law Journal 382, Patrick Macklem examines how the nature of property, c o n t r a c t , sovereignty and c o n s t i t u t i o n a l r i g h t e s t a b l i s h and maintain a h i e r a r c h i c a l r e l a t i o n s h i p between n a t i v e people and t h e Canadian s t a t e . In h i s view t h e Sparrow d o c t r i n e perpetuates t h i s s t a t u s quo.  148 government.  60  Language  importance.  "Granting"  political  power  choice was  implied  and  "Acknowledgement"  was  an  recognition  therefore .  preferred  issue  because  was it  by  of  crucial  a  superior  unacceptable. recognized  an  equality of sovereignties. Bearing in mind the connotations of dependency  and vulnerability  associated with the fiduciary  concept, Native groups should be equally cautious with regard to its entry into legal discourse. From an ideological perspective, the historical perception of the special trust relationship is another significant factor as to whether or not a positive framework for the fiduciary concept can be developed.  The relationship is grounded in  historical practices that emerged from dealings between the British Crown and aboriginal nations during the founding of colonies in the early 1600's to the fall of New France in 1760. 61 The principles underlying these practices were reflected in The Royal Proclamation of 1763 62 Generally, the Royal Proclamation outlines policy guidelines which restrict the alienation of lands reserved for Indians. For convenience the text of the relevant provisions are repeated below: 60  •  •  See: "The Aboriginal Constitutional Process:" An Historic Overview" (Ottawa: Government of Canada, 1991). For a discussion of the difference between the inherent as opposed to the contingent aboriginal rights approach see Michael Asch and Patrick Macklem, "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow" (1991) 22 (2) Alberta Law Review 498. 61  See: M.A. Donohue, "Aboriginal Land Rights in Canada: A Historical Perspective of the Fiduciary Relationship" (1990) 15 American Indian Law Review 369. R.S.C. 1985, App. II. No.l.  149 And whereas it is 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 part 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.... And Whereas Great Fraud and Abuses have been committed in purchasing Lands of the Indians, to the great prejudice of our interests and to the great dissatisfaction of the said Indians; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do with the advice of our Privy Council strictly enjoin and require, that no private person do presume to make any purchase from the said Indians of any lands reserved to the said Indians, (emphasis mine) 63 Conceptually (ideologically), there exist two competing visions as to the significance of the document. First, the Proclamation connotes that Indian people are like children or "wards of the state."  Alternatively, the Proclamation  refers to solemn  promises made between nations that must be honoured.  As a  member of the dominant society it is easy to slip into the notion that the Proclamation provided for the "protection" of unsophisticated,  child-like dependents.  This removes from  history the idea that the document was entered into in order to prevent hostilities from breaking out between Indian nations and settlers.  Furthermore, the colonial history of Crown and First  Nations interacting as political equals on the basis of consent and equality is also made invisible. In order for the fiduciary R.S.C. 1985, Appendix II, No. 1.  150 concept  to  meet  the  aspirations  of  aboriginal  peoples  ideology of r e s p e c t for F i r s t Nations needs t o be Distorted,  paternalistic  notions  about  the  an  fostered.  "protection"  of  Indian people must be discarded. The work of Michel Foucault sheds l i g h t on how those with power c o n s t r u c t illustrates  M  knowledge.  his thesis.  The " f i d u c i a r y  relationship"  For Foucault meaning, and what  is  perceived as t r u t h , i s constructed through discourse constructed by i n s t i t u t i o n a l s t r u c t u r e s l i k e law. The s t r u g g l e t o c o n t r o l meaning and r e c o n s t r u c t location.  This  instrumental  discourse  involves  terms  but  must be fought  thinking in  about  appreciating  law its  in  not  every  just  discursive  in and  i d e o l o g i c a l dimension. F o u c a u l t ' s message t o marginalized groups i s t o attempt t o r e s c r i p t the s t o r i e s t h a t have been forced upon them.  65  Resistance i s advanced through t h e deconstruction of  dominant  meaning  and  bringing  alternate  meanings which are  order. 6 6  An example of  into  subversive  resistance  to  awareness  suppressed  to the  established  dominant  ideological  thought occurred in 1983 during t h e hearings which r e s u l t e d i n t h e Penner Report i n t o Indian Self-Government.  In an attempt t o  See: Michel Foucault, Colin Gordon ( e d i t o r ) Power/Knowledge; S e l e c t e d Interviews and Other Writings (New York: Pantheon Books,1980); The Foucault Reader, Paul Rabonow ( e d . ) (New York: Pantheon Books, 1984); Foucault, M i c h e l . P o l i t i c s , Philosophy, Culture: Interviews and Other Writings: 19771984, Lawrence Kritzman ( e d . ) (New York: Routledge, 1988). 66  As Foucault w r i t e s , "The t a r g e t t o day i s not t o d i s c o v e r who we are but t o refuse who we a r e . " Foucault Reader, p . 2 2 . 66  To use F o u c a u l t ' s words, "an i n s u r r e c t i o n of subjugated knowledges" must occur. See: Foucault. Power and Knowledge, p . 8 1 , 8 2 .  151 counter p r e v a i l i n g ideas and discourse t h e a b o r i g i n a l community c a l l e d for a "renewal of t h e s p e c i a l r e l a t i o n s h i p " by d i s c a r d i n g c u l t u r a l baggage based on "ideas of hierarchy and i n e q u a l i t y . " As f i d u c i a r y language e n t e r s t h e l e g a l discourse  67  surrounding  a b o r i g i n a l r i g h t s and Crown-aboriginal r e l a t i o n s h i p s , t h e r e i s a  risk  it  will  perpetuate  aspects  of  victimization  m a r g i n a l i s a t i o n often a s s o c i a t e d with Native peoples.  and  68  Gavigan's second branch of i n q u i r y i n t o ideology involves i d e n t i f y i n g t h e extent t o which t h e j u d i c i a r y i t s e l f  employs  i d e o l o g i c a l thought (which i s formally e x t e r n a l t o t h e law) but which i s  then incorporated  virtually unassailable.  into legal doctrine  and becomes  In Sparrow t h i s phenomenon occurs when  t h e Supreme Court b u i l d s i t s a n a l y s i s on t h e assumption t h a t Canada has sovereign a u t h o r i t y over i t s indigenous p o p u l a t i o n s . Without  any  aboriginal  discussion  the  Court  accepts  the  thesis  sovereignty was extinguished by t h e a s s e r t i o n  that of  Crown sovereignty. As s t a t e d in t h e judgment: It  is  worth  recalling  that  while  British  policy  See:Indian Self-Government i n Canada - Report of t h e Special Committee on Indian S e l f Government(Ottawa: House of Commons, 1983), pp. 119-121. 68  In two recent a r t i c l e s Patrick Macklem and Brian S l a t t e r y have attempted t o c a s t t h e Crown's t r u s t r e s p o n s i b i l i t y i n a new l i g h t . S l a t t e r y argues t h a t t h e f i d u c i a r y r e l a t i o n s h i p between Aboriginal p e o p l e s and the Crown i s a s p e c i a l i n s t a n c e of a general d o c t r i n e of c o l l e c t i v e t r u s t t h a t animates t h e Canadian C o n s t i t u t i o n as a whole. He eschews t h e idea t h a t t h e t h e o r e t i c a l b a s i s of t h e f i d u c i a r y concept assumes t h a t t h e Crown stands t o Aboriginal p e o p l e s as a guardian towards a ward. Rather he s e e s f i d u c i a r y as more compatible with t h e federal s t r u c t u r e of Canada. Macklem s e e s the f i d u c i a r y concept as a "moment of p o s s i b i l i t y for t h e expansions and transformation of t h e law so t h a t i t can serve as an instrument of n a t i v e empowerment." See: Brian S l a t t e r y , "First Nations and t h e C o n s t i t u t i o n : A Question of Trust" 71 Canadian Bar Review 261; Patrick Macklem, "First Nation Self-Government and t h e Borders of t h e Canadian Legal Imagination" (1991) 36 McGill Law Journal 382.  152 towards the native population was based on respect for their right to occupy their traditional lands,...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 69 This view of sovereignty is only acceptable where land was previously  unoccupied.70  Otherwise  it is based on racist  notions touting the inherent superiority of discovering nations. For settler groups to deny recognition to aboriginal sovereignty is to assume that the original inhabitants were too primitive to possess a form of sovereignty that deserved to be recognized by a more "advanced" settler society.71 In popular culture and  in law the legitimacy of the  assertion of sovereignty by the discovering nations over the indigenous population at the time of settlement is an ideology that is rarely questioned.  Sparrow is an indication that the  judiciary  perpetuate  is  content  to  such  an  underlying  assumption. To be fair, there is much that is laudable about the Sparrow judgement. Caution is necessary though, for as Hunt points out, for ideology to work effectively "something real or  Sparrow, p. 1103. 70 "Western Sahara Case" (International Court of Justice Report, 1975) as discussed in Maureen Davies, "Aspects of Aboriginal Rights in International Law" in Bradford Morse (ed.) Aboriginal People and the Law (Ottawa: Carleton University Press, 1989), p. 66. 71  For a discussion of whether or not the Lil'Wat Nation surrendered its sovereignty see B.C.(A.G.) v. Mount Currie Band (1991) 54 B.C.L.R. 129 (S.Ct.). At issue were contempt charges laid against two native men who breached court injunctions prohibiting the blocking of a logging road. Central to the lawyers arguments was the idea that the Lil'Wat Nation exists on an equal footing to British/colonial governments, with the former never ceding their territorial sovereignty.  153 beneficial is gained or reflected in it."  72  This reflects  Antonio Gramsci' s notion of '•hegemony", i.e. that the most effective kind of domination takes place where ideologies cater in some ways to the interests of those who are dominated. ™ In Sparrow the fiduciary relationship is presented as a positive and natural development in the common law of aboriginal rights. On the positive side, legislation which affect s. 35 rights will now undergo strict scrutiny. jurisdiction  over  First  However, Parliament's ultimate  Nations  indeed, is further entrenched.  remains  unquestioned  and,  74  One does not need to look too far to discover further examples of ideological thought informing Justice Dickson's and Justice La Forest's reasons.  Why is it that the Court cannot  imagine aboriginal or treaty rights as unlimited?  As a result  of the Court's experience with Charter interpretation, and especially s.l,  75  the judiciary is steeped in the notion that  few rights are absolutely guaranteed and cannot be infringed.  /z  Hunt, p. 292.  73 See: E. Greer, "Antonio Gramsci and Legal Hegemony" in D. Kairys (ed.) The Politics of Law (New York: Pantheon Books, 1982), p. 304; A. Gramsci, Selections From The Prison Notebooks (Howe and Nowell Smith (eds.)(London: Lawrence and Wishart, 1971). 74  For a further discussion of First Nations and the unquestioned acceptance of Canadian sovereignty see Michael Asch and Patrick Macklem, "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow" (1991) 22 (2) Alberta Law Review 498;and Bruce Clark, Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self Government in Canada (Montreal: McGill-Queen's University Press, 1990). 76  Section 1 reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. See R. v. Oakes, [1986] 1 S.C.R. 102.  154 But what if aboriginal rights are different and not based on the individual rights tradition familiar to the common law?  Just  compensation paid to third parties affected by the recognition of unimpaired aboriginal rights is not unimaginable. Yet the Court refused to entertain a scenario where no "safety valves" existed." assumption  76  Again the Court's reasoning is based on the that  First  Nations  do  not  possess  inherent  sovereignty and inherent aboriginal rights. It is not suggested that the Court consciously subscribes to this view. On its face the judgment strongly suggests the opposite. However, decisions which do not openly question the legitimacy of limiting rights reproduce dependency in a new form. obligation  to  limit aboriginal rights perpetuates  relationship of inequality. gave  some  The use of the fiduciary  content to  s.  a legal  In Sparrow, although the judiciary 35 rights, underlying  ideologies  required circumscribing limits. Since no "safety valves" exist to limit the content, the judiciary could not comprehend a situation where aboriginal rights and aboriginals were beyond state control. From one perspective it is a positive development that Parliament in exercising its legislative power in relation to Indians and land reserved for Indians now does so limited by a fiduciary duty to Aboriginal peoples.  However, behind the  recognition of s. 35 rights is a state power grab cloaked in the 76 The notion of no "safety valves" in the text of s. 35(1) is taken from Schwartz, Bryan, First Principles - Second Thoughts (Montreal, Institute for Research on Public Policy, 1986), pp. 359-360.  155 form of fiduciary obligations.  The state acknowledges some  rights, claims they are not unlimited, and then sets up a fiduciary scheme to structure the limitations. Thus, the court is complicit in further circumscribing the lives of aboriginal peoples without their consent. Judicial ideology is also operating when aboriginal rights are confined to the relatively innocuous area of a sustenance food rights. Even though commercial fishing rights were argued at trial, on appeal only food fishing rights were at issue. The popular culture stereotype of Natives as passive hunters and gathers,  uninterested  and  unentitled  to  more  commercial  enterprises is absorbed and perpetuated.77 When this assumption is the starting point, it is relatively painless for judges to impose state fiduciary obligations since they extend into areas where the consequences are not too costly.  Adoption of the  Sparrow doctrine may thus result in confining the scope and content of s. 35 rights to traditional cultural activities characteristic of subsistence economies. As Hunt has observed "ideology is a "difficult, slippery and ambiguous concept, yet handled with care it provides an indispensable  and irreplaceable  tool  of analysis."  78  In  For a slowly emerging contrary position see Rj_ v. Vanderpeet (1991) 58 B.C.L.R. (2d) 392 (B.C. S.C.) where the right to commercial fishing was acknowledged, and Justice Wilson's dissenting opinion in Rj_ v. Horseman.,f19901 1 S.C.R. 901, where Justice Wilson refused to find that the selling of hides to buy food was not sale for commercial profit. 78 Hunt, p. 31. Although Foucault often referred to operating ideologies he believed that the concept could not be used without "circumspection." See: Foucault, Power and Knowledge, p. 118.  155 £A) interpreting s. 3 5 of the Constitution the Supreme Court has exerted  an  relationships.  ideological  influence  over  Crown-aboriginal  The fiduciary concept fortifies the legitimacy  of an entrenched position of authority for the Crown. It is not a blatant attempt at native disempowerment but rather a subtle process by which legal doctrine and judicial interpretation reproduce and reinforce the subordination of aboriginal peoples.  156 CHAPTER 4 TOWARDS A PROGRAMME OF STRATEGY Prior to the emergence of a fiduciary discourse the world of aboriginal politics was dominated by rights discourse: the right to self-government, the right to title of land, the right to equality, the right to social services.1 As a result of Sparrow, Aboriginal groups no longer have to couch their grievances, claims and aspirations in rights terms, they now can wrap their interests around the fiduciary concept.  In her  article, "Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differences"  Mary Ellen  Turpell analyzes how the Charter and the conception of rights in Canadian law must be situated culturally.  2  Her insights  into the strategy of using rights discourse raise parallel issues that must be considered if fiduciary discourse is to be used together with rights discourse. In Turpell's view, because the western culture on which rights discourse is based is not shared by aboriginal people the application of rights to aboriginal peoples is suspect: The rights paradigm is a legal structure with profound political implications for Aboriginal peoples. Yet it is a paradigm largely insensitive to 1 For a similar point see: Mary Ellen Turpell, "Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differences" (1989/90) 6 Canadian Human Rights Yearbook 3, p. 31.  2  Ibid., p. 5.  157 its own particular cultural self-image. To reverse this legal scholarship one has to start to question fundamentally its grounding. 3 For Turpell a contradiction is at work when aboriginal advocates rely on rights strategies. On the one hand they advocate that Aboriginal peoples be recognized as distinct people, yet on the other hand they are required to express that distinctness through concepts defined by Canadian law and given content by courts whose process and members reflect a different cultural system.  Sherene Razack echoes Turpell1s  concerns. Writing from a feminist perspective Razack claims that "when women and other oppressed groups articulate the problems of our daily lives using the concept of rights and all that it entails, we are consciously or unconsciously squeezing our lived experience into a pre-ordained mould."  4  She points out that such a project can place limits on a community's "seeing and knowing."5 Are similar forces at work when Aboriginal peoples make fiduciary claims?  Turpell's thinking urges us to ask whether  the fiduciary framework is simply another example of a concept that was "thought up and imposed" on Aboriginal peoples by the 3  Ibid., p. 26.  4  Sherene Razack. Canadian Feminism and the Law: The Women's Legal Education and Action Fund that the Pursuit of Equality(Toronto; Second Story Press, 1991.), p. 13. 6  Ibid. In a detailed history of the litigation pursued by the Women's Legal Education Fund Razack attempts to show the falsity of the rationale that if women only convey their point of view to the judiciary they will create a system of justice that reduces social inequality. Razack concludes that getting the legal system to work for women requires more than reworking old concepts.  158 same culture that created individual rights discourse?  Is it  another in a long line of strange expressions to be added to the likes of "usufructuary," "sui  generis." "aboriginal  title,", "referential incorporation", and "extinguishment?" If Turpell's analysis is followed the inevitable conclusion is that the fiduciary concept is an importation from an external culture and is incommensurable with the cultural system of Aboriginal people.  Moreover, just as previous legal tools  have contributed little to ending the social inequalities between aboriginal and non-aboriginal people, little should be expected from the newest addition.  As Delqamuukw, Thomas,  Desjarlais, Bruno and Carrier-Sekani illustrate, "fiduciary" is not off to a momentous start. On the other hand, the association between the discourse surrounding the Crown-aboriginal fiduciary relationship and negative thinking about rights discourse is open to challenge. At present parts of the legal academic community are engaged in a heated debate over the usefulness of rights to achieve social change.  In response to those academics who have  critiqued the ethnocentrism and de-politicizing nature or rights, 6 are those academics who focus on the symbolic value of rights struggles.  In separate articles Elizabeth Schneider  and Patricia Williams comment on the empowering nature of rights victories for those groups who have a history of See: Peter Gabel, "The Phenemology of Rights-Consciousness and the Pact of the Withdrawn Selves" (1984) 62 Texas Law Review 1563; Mark Tushnet, "An Essay on Rights" (1984) 62 Texas Law Review 1363.  159 exclusion and disadvantage.7 A similar point is made byRobert Williams who urges minority groups to "take rights aggressively" and to use them as strategic and instrumental weapons to "beat the system" or win a "tangible benefit." 8 The relevance of this debate to the issues surrounding fiduciary litigation should be apparent. On one hand, there is an increased reliance on the fiduciary concept as a strategy for securing tangible benefits, yet nothing has been delivered.  On the other hand, the fiduciary concept is a site  of mobilization around which a new wave of demands can be made.  Indeed, it is a symbolic victory for the Crown-  Aboriginal relationship to be constitutionally entrenched under s. 35 as recognized in Sparrow.  Thus, like rights  discourse, it does not appear to be a question of enthusiastic acceptance or total rejection of the fiduciary concept. Formal recognition of the special nature of the CrownAboriginal relationship may be a necessary pre-condition for more substantial and fundamental change. At the same time it is essential to remain hyper-sensitive to the pitfalls attached to fiduciary discourse,  particularly when it is  merged into the political and ideological dimensions of the  7  Elizabeth Schneider, "The Dialectics of Rights and Politics: Perspectives from the Women's Movement" (1986) New York University Law Review 599; Patricia Williams, "Alchemical Notes: Reconstructing Ideals From Deconstructed Rights" (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 323. 8  Robert Williams, "Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Colour" (1987) 5 Law and Inequality 103, at 125-126.  160 l e g a l system. At t h e b e g i n n i n g of t h i s work s e v e r a l q u e s t i o n s were r a i s e d : What i s t h e r o l e and f u n c t i o n of law i n p r o g r e s s i v e politics? change?  Can t h e law be used t o a c h i e v e s i g n i f i c a n t I f s o , how?  I f n o t , why n o t ?  After t h i s  extensive  review of t h e f i d u c i a r y r e l a t i o n s h i p some answers a r e t o emerge.  social  starting  I t i s far too facile t o issue a blanket  condemnation of t h e l e g a l system o r t h e f i d u c i a r y c o n c e p t a s i t r e l a t e s to disputes involving native people.  Generally,  A b o r i g i n a l Canadians have accomplished g r e a t s t r i d e s i n t h e legal sphere.  L i k e many dominated and o p p r e s s e d groups t h e y  p e r c e i v e d t h e i r g r i e v a n c e i n l e g a l t e r m s and a r t i c u l a t e d  their  needs and i n t e r e s t s i n t e r m s t h o u g h t t o be promised o r owed by law.  9  C a l d e r , Guerin and Sparrow a r e examples of how l e g a l  d e c i s i o n s s e r v e t o i n i t i a t e p o l i t i c a l and l e g a l r e f o r m . As a r e s u l t of C a l d e r t h e f e d e r a l government i n i t i a t e d a l a n d c l a i m s program. 1 0  I n Guerin t h e Supreme Court f o r c e d DIAND  t o w a r d s a new form of l e g a l a c c o u n t a b i l i t y on t h e p a r t of t h e Crown i n i t s d e a l i n g s w i t h r e s e r v e l a n d .  As e x p l i c i t l y  d i r e c t e d by t h e Supreme Court i n Sparrow, s . 35 p r o v i d e s a  In Whigs and Hunters E . P . Thompson's makes t h i s p o i n t w e l l . In h i s study of t h e n o t o r i o u s B r i t i s h Black Act of 1763 Thompson exposes b o t h t h e r e t r o g r e s s i v e c h a r a c t e r of t h e law and i t s a b i l i t y t o p r o v i d e a "moral b a s i s f o r r e s i s t a n c e t o i n j u s t i c e . " For Thompson, t o t r e a t law a s mere sham i s t o d i s h o n o u r c e n t u r i e s of s t r u g g l e i n which t h e poor and oppressed a t t e m p t e d "to f i l l t h e law w i t h human c o n t e n t , t o hold t h e law t o i t s own p r e t e n s i o n s t o j u s t i c e . " E . P . Thompson, Whigs and H u n t e r s : O r i g i n s of t h e Black Act (New York: Pantheon Books, 1975). 10  See: In A l l F a i r n e s s : A N a t i v e Claims P o l i c y - Comprehensive Claims (Ottawa: Q u e e n ' s P r i n t e r , 1981).  161 "solid constitutional base upon which subsequent negotiations can take place."11  These are laudable achievements,  yet when  one becomes aware of the operation of dominant ideologies and the conservative nature of the legal system it is necessary to re-evaluate the usefulness of promoting legal change (either through reform or the Common Law) as a method of resisting the oppression of native people. In response to the question, "should disadvantaged groups go to court?" some academics have responded, "yes, but cautiously."  Michael Mandel, writing of the legalization of  politics under the Charter, makes the argument that since the Charter "leaves the hoards of power and power itself untouched," women and others who use the courts as a route to change cannot expect much in the way of change in group status.  Mandel gives this advice:  The Charter has to be handled with care, something like nitroglycerine. To think of it as just another strategy, or worse yet, a preferred strategy, can be disastrous. 12 Similarly, native litigation is at stage where a cautious approach must be adopted.  Hard questions of political choice  and strategy can no longer be avoided.  Tradition will  pressure lawyers into litigating even though little change in prevailing conditions of social and economic inequality between native and non-native Canadians reveals the limits of 11 12  Sparrow , p. 1105.  Michael Mandel, The Charter of rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989), p. 309.  162 this strategy.  In addition the development of analyses of law  and ideology reveals the central role of law in entrenching and reproducing the oppression faced by native Canadians. Native litigants and lawyers involved with aboriginal rights must scrutinize the fiduciary arguments they advance to determine whether or not they will reinforce ideological constructions of the relationships between First Nations and the dominant society. When rushing to court, it is too easy to forget the lessons of law and politics and law and ideology and overlook the ease by which putatively progressive developments are absorbed by the legal system and further legitimate balances of power.  As the preceding chapters have established  underlying both the Sparrow and Guerin doctrines is the assumption of a hierarchical relationship between the Crown and First Nations in the context of property entitlement.  The  Court's reliance on the idea that the Crown bears fiduciary responsibilities toward native peoples indicates that the Court is not willing to move away from a hierarchical vision of the relationship between First Nations and the Canadian state in the realm of constitutional jurisprudence.  Sparrow  exhibits the best reformist impulses offered by the Supreme Court of Canada.  However, if the judgment does not openly  question the legitimacy of an entrenched position of authority for the Crown, it simply reproduces dependency in a new form. Yet, to repeat, law is not always a villain.  It can be  163 both a site of social struggle and an instrument of social change.  While highly critical of liberal legalism Cornell  West argues that serious and committed work within the legal system "remains indispensable if progressive politics is to have any future at all." 13 writes Cornell,  The majority of legal work,  cannot but be defensive in nature in that it  provides a context for resistance to injustice.  He does leave  some room for lawyers to link their work to grass roots movements involved in "credible progressive projects."  14  His  suggestion is that a lawyer's role is to demystify the power relations operating in legal decisions.  In order to  facilitate the development of appropriate legal strategies West urges lawyers and academics to develop empowering analyses that cast light on how legal doctrine contributes to the maintenance of existing social and power relations.  By  having a rigorous analysis to explain why *the more things change the more they stay the same• lawyers and academics can mitigate the crushing effects of incremental or hollow gains after long legal struggles.  By exposing how law has both  impeded and impelled struggles for justice grassroots movements will be better prepared to know how and when to engage with law.  13  Still as Hunt advises, "Resort to the courts  Cornell West, "The Role of Law In Progressive Politics" in Kairys, David (ed.). The Politics of Law; A Progressive Critique (Revised edition)(New York: Pantheon Books, 1990) 468, at 469. 14  Ibid., p. 469.  164 can only be a pragmatic and occasional strategy for change."15 Law can be used defensively but it also can be a forum for articulating alternative visions and accounts. Law can provide a a focal point for alternative discourses to be heard. Hutchinson has written that "if we really want to change society we must stop thinking about the legal process in instrumental terms and start to appreciate its discursive and ideological dimension.  16  In his view, as in the view of  Robert Gordon the law contributes to a knowledge/power system that is built piece by interlocking piece. Gordon identifies law as a belief system that has the effects of making both doctrine and social relations seem natural and inevitable: Law, like religion...is one of these clusters of belief - and it ties in with a lot of other nonlegal but similar clusters - that convince people that all the many hierarchical relations in which they live and work are natural and necessary.17 Gordon's thinking leads him to include the Foucauldian ideas of power and knowledge into his analysis. 18 For as Foucault suggested the whole legitimating power of a legal system is not built upon coercive instrumental force but rather on smaller more insidious instances ("micro-levels") which allow 16  Alan Hunt, "The Big Fear: Law Confronts Postmodernism" (1990) 35 McGill Law Journal 507, at 537. 16  Allan Hutchinson, "Telling Tales (Or Putting Pluralism)" (1985) Osqoode Hall Law Journal 681, p. 689. 17  the Plural in  Robert Gordon, "New Developments in Legal Theory" in Kairys, David (ed.). The Politics of Law; A Progressive Critique (Revised edition)(New York: Pantheon Books, 1990) 413, at p. 418. Ibid., p. 421,422.  165 power imbalances to be perpetuated.  As we have seen in  Chapter 3 the fiduciary concept is one of the interlocking pieces contributing to the power imbalance between aboriginal and non-aboriginal Canadians. Foucault advised that for the deconstruction of dominant power systems previously subjugated knowledge systems must be freed.  In a small way the work has  begun to attempt to  reclaim fiduciary law so that it can serve as an instrument of native empowerment.  Patrick Macklem's article "First Nation  Self-Government and the Borders of the Canadian legal Imagination" is an attempt to reconceptualize doctrinal principles in order to transcend the hierarchical relationship between native peoples and the Canadian State. 19  Similarly,  by focusing on "the general doctrine of collective trust that animates the Canadian Constitution,"  Brian Slattery's article  "First Nations and the Constitution: A Question of Trust" attempts to place the fiduciary relationship in a more positive light. 20  In Chapter 2 we have seen how the  fiduciary concept could be used to facilitate a meaningful role for aboriginals in the area of policy development. However, if the fiduciary concept is to play a facilitative role in the restructuring of Crown-aboriginal relationships,  Patrick Macklem, "First Nation Self-Government and the Borders of the Canadian Legal Imagination" (1991) 36 McGill Law Journal 382. Brian Slattery, "First Nations and the Constitution: A Question of Trust" 71 Canadian Bar Review 261.  166 the Canadian legal imagination must be rethought and adapted so that the law does not perpetuate the continued imposition of liberal legal norms and values onto native reality.  As  Macklem advises, "Native interests and needs cannot be accommodated within current categories of legal understanding, as the necessary changes require more than the simple embrace of those interests and needs into already existing and accepted ways of understanding the world." 21 In addition, the lessons of postmodern thought and Feminism should not be forgotten:  to include previously  excluded groups the reformation of legal thought requires a remaking of the conceptual map by which the law structures and makes sense of reality.  To avoid further perpetuating the  status quo the fiduciary relationship must be reconceptualized so as to reshape the law's relation to native people.  Current  ways of knowing (i.e., fiduciary equals hierarchy, assumptions regarding First Nation sovereignty, etc.) are part of the problem.  True reform requires the creation of new ways of  legal understanding that embraces native difference. 22 One of the great achievement of postmodern legal scholarship has been the ability to successfully discard the view that law and legal decision making are ahistorical and  21 22  Macklem, p. 395.  The recognition of the inherent right to self government within Canada in the text of the Concensus Report on the Constitution (The Charlottetown Accord, 1992) indicates that native difference is entering legal discourse in a meaningful way. See: "Concensus Report on the Constitution " (Unedited text) Globe and Mail, Saturday, October 3, 1992, A-6 - A-8.  167 apolitical.23  Any notion that the correctness of a legal  decision is somehow preordained by text and rationality has been debunked.  Instead postmodernism has allowed us to  conceive of law as a set of practices and forms that constitute economic, social, cultural and political relations among groups and individuals. As the often hostile resistance to the Critical Legal Studies movement in legal academia illustrates, many feel threatened by the decentering of the privileged position accorded to law.  The extent of the uneasiness is illustrated  in a group of articles which interpret the decentering of law as heralding the end of law itself.  24  For these authors an  embracing of postmodern principles inexorably leads towards a loss of belief in the prevailing social order.  In the  tradition of the best fearmongerers, these critics melodramatically suggest that if faith in democratic touchstones like  the "rule of law" are undermined, fascism  cannot be far behind. Others are overwhelmed by the moral relativity that postmodernism presents.  Their argument is that if there are  23  While it is true that postmodernism offers a powerful critique of law it cannot be considered original. As Hunt points out postmodernism's themes are represented by a range of critical traditions including American legal realism, the law and sociology movement, Marxism, and especially critical legal studies. See: Hunt, "The Big Fear: Law Confronts Post-Modernism" (1990) 35 McGill Law Journal 507, at 522. Two of the most outspoken criticisms of the postmodern influence on law include: Fiss, "The Death of Law" (1986) 72 Cornell Law Review 1; Rubin, "Does Law Matter: A Judge's Response to the Critical Legal Studies Movement" (1987) 37 Journal of legal Education 307.  no fixed reference points and if meaning is unstable and contingent then there are no grounds for choosing one theoretical or political strategy over another. Allan Hunt is especially articulate in his description of the moral relativists*s dilemma: ...any concession to contingency or any retreat from the objectivity of knowledge claims leads, via the associated imagery of the "slippery slope" unwittingly but unavoidably towards the abyss of relativism and its even more dangerous associate nihilism....Nihilism is conceived as catastrophic because it seems to deny the possibility of cognitive, ethical or moral judgement as anything more than subjective preference or conventional consensus. If "one opinion is as good as another: the project of scholarship itself seems to be doomed if the opinion of the fool is as valuable as that resulting from painstaking study. If "anything goes" it becomes impossible to distinguish between a moral judgment and self-interest. 25 In effect the acknowledgement that there exists no firm ground in which knowledge or law can be rooted unnerves those who claim access to reality, truth and objectivty. For those interested in the law and social change postmodernism*s emphasis on indeterminacy and contingency should be a cause for hope not despair.  Critical legal  analysis exposes legal decision making as a function of extraneous and intangible factors. It is a freeing realization.  When law fails to improve the conditions of  native peoples, women, gays and lesbians or other disadvantaged groups, it is not a function of the intrinsic rationality of law, or the inherent logic of the legal form, Hunt, p. 524.  but rather a lack of will, a political choice, a simple failure to act.  Postmodernism does not ask for the  impeachment of judges on the basis that any judgment is nothing more than subjective preference, rather it demands that judges justify their choices "without hiding behind the discourses of truth and objectivity"  which serves to "obscure  responsibility" for the choices made. 26 To conclude, as an instrument for native empowerment the fiduciary concept has potential.  However it should be used  pragmatically with full knowledge that there are deeper contingencies than mere positivistic law at work.  A realistic  approach to using the law for social change should be adopted. It must be realized that the law can be both a site of oppression, and, at times, an instrument for resisting oppression.  Advancing legal claims should not be abandoned  for they provide an organizing point for political struggle. Legal victories can be inspiring for the group concerned, and legal defeats can be a catalyst for more radical action. However, when it is realized that law operates as ideology; that law and politics are often conflated; and that even the most sweeping positive decisions already have limitations built into them, litigation must be seen as only one front of action.  Joel Bakan has written that it is "naive" to think  social and political change will happen by merely approaching the courts with refined legal arguments.  He advises against  170 solely relying on the Courts for the realization of an egalitarian and just society.  Instead he advocates a  coordination of litigation with other forms of political strategy.  27  Law is not the only factor which contributes to the construction of native reality. Government inaction, ideological factors, economic considerations and historical treatment all contribute to the socio-economic conditions in which native people find themselves.  Even though law is only  partially responsible for the current status of native people, this alone is sufficient justification for exploring the complex ways in which law perpetuates, entrenches and, at times, mitigates forms of oppression.  Complex patterns of  interaction determine how law and the aforementioned factors influence each other.  To understand these patterns, analyses  of how law contributes to native reality must be developed. For meaningful change to occur political strategies must also be developed along the following fronts : fiscal policy, public information and education programs, health care, child welfare, criminal justice, policing, resource management and economic development.  Most are issues which self-government  initiatives address. Law is deeply reflective of political and ideological  Joel Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What you Want (Nor What You Need) in R. Devlin (ed.) Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery Publications, 1991) at 445.  171 conflicts.  That realization makes the choices of when and how  to engage with law easier.  Depending on the situation law can  be used offensively (alone or alongside other strategies) or defensively.  At times it should be avoided.  In light of  this analysis, there exists a role for an expanded fiduciary concept in future litigation.  However, it should be  approached with caution and realism, and not false optimism about any sweeping changes it might bring.  172 BIBLIOGRAPHY Asch Michael and Macklem, Patrick. "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow" (1991) 22 (2) Alberta Law Review 498. Associate Chief Justice A.C. Hamilton, and Associate Chief Justice S.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba Volume 1: The Justice System. (Province of Manitoba, 1991). Bakan, Joel. "Constitutional Interpretation and Social Change: You Can't Always Get What you Want (Nor What You Need) in R. Devlin (ed.) Canadian Perspectives on Lecral Theory (Toronto: Edmond Montgomery Publications, 1991). Bakan, Joel. "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27 Oscfoode Hall Law Journal 123. J.M. Balkin, "Deconstructive Practice and Legal Theory" (1987) 96 Yale L.J. 743. Barnes, Robin."Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship" (1990) 103 Harvard Law Review 1864 Bartlett, Katherine. "Feminist Legal Methods" (1990) 103 Harvard Law Review 829. Bartlett, Richard. "You Can't Trust the Crown: The Fiduciary Obligation of the Crown to the Indians: Guerin v. The Queen" Vol 49:2 Saskatchewan Law Review 3 67. Bartlett, Richard. "The Fiduciary Obligations of the Crown to the Indians" 53 Sask. Law Review 301. Bell, Catherine, Aboriginal and Treaty Rights: reconciling powers and duties: a comment on Horseman. Sioui and Sparrow." (1990) Vol. 2 No. 1 Constitutional Forum pp. 1-4. Berger, Thomas. "R. v. Sparrow: Case Comment" 23 U.B.C. Law Review 606. Berger, Thomas. A Long and Terrible Shadow (Vancouver: Douglas and Mclntyre, 1991). Binnie, W.I.C. "The Sparrow Doctrine: Beginning of the End or End of the Beginning?" (1990) 15 Queen's Law Journal 217.  173 Boldt and Corry. The Quest for Justice: Aboricfinal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985). Boyd, Susan. "Child Custody, Ideologies and Employment" (1989) 3 Canadian Journal of Women and the Lav 111. Boyd, Susan and Elizabeth Sheehy, "Feminist Perspectives on Law: Canadian Theory and Practice" (1986) 2 Canadian Journal of Women and the Law 1. Boyle, Christine. "Criminal Law and Procedure: Who Needs Tenure?" (1985) Osgoode Hall Law Journal 427 at 428. Brodsky, Gwen and Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989). Burns, Peter. "Delgamuukw v. B.C.: A Summary of the Judgment," conference paper: Delgamuukw and the Aboriginal Land Question: Victoria B.C., Sept. 10, 1991. Cooper, Barry. "Defining the Larger Context of Aboriginal Rights"(1990) 5 Canadian Journal of Law and Society 127. Cassidy, Frank. "The Governments of Canadian Indians (1989) July Policy Options p. 25. Chief Justice T. Alexander Hickman, A.C.J. L. Poitras, et al., Royal Commission on the Donald Marshall, Jr. Prosecution: Digest of Findings and Recommendations (Lieutenant Governor of Nova Scotia, 1989). Clark, Bruce. Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self Government in Canada (Montreal: McGill-Queen's University Press, 1990). Correctional Services Canada,Native Population Profile Report (Ottawa: Management Information Services, 1987). Crenshaw, Kimberle. "Race, Reform and Retrenchment: Transformation and Legitimation in Anti-discrimination Law" (1988) 101 Harvard Law Review 1331. Cossman, Brenda and Ratna Kapur, "Trespass, Impasse, Collaboration: Doing Research on Women's Rights in India" (1991) 1(2) The Journal of Human Justice 99.  174 Currie Dawn, and Kline, Marlee. "Challenging Privilege: Women, Knowledge and Feminist Struggles" (1991) 2(2) The Journal of Human Justice 1. Dalton, Clare. "The Faithful Liberal and the Question Diversity" (1989) 12 Harvard Women's Law Journal 1.  of  De Beauvoir, Simone. The Second Sex (H.M. Parsely, (trans. & ed.) (New York: Vintage Books, 1989), pp. x-xii. Delgado, Richard. "The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?" (1987) 22 Harvard Civil Rights and Civil Law Review 301. Delgado, Richard. "Storytelling for Oppositionists and Others: A Plea for Narrative" (1989) 87 Michigan Law Review 2411. Delgado, Richard. "When a Story is Just a Story: Does Voice Really Matter" 76 Virginia Law Review 95 (1990). Department of Indian an Northern Affairs, Aboriginal Conditions, 1981-2001, Parts (Ottawa, 1989).  Highlights of I,II and III  Donohue, M.A.. "Aboriginal Land Rights in Canada: A Historical Perspective of the Fiduciary Relationship" (1990) 15 American Indian Law Review 369. Duclos, Nitya. "Lessons of Difference: Feminist Theory on Cultural Diversity" (1990) 38 Buffalo Law Review 325. Dworkin, Ronald. "Neutrality, Equality and Liberalism" in D. Maclean and C. Mills (eds.) Liberalism Reconsidered (Ottawa: Rowman and Allanhead, 1983). Eaton, Mary. "Case Comment: Andrews v. Law Society of British Columbia" (1991) 4 Canadian Journal of Women and the Law 276. Edwards, Robert. "Fiduciary Duties and the Delgamuukw Decision" (Conference Paper: "Delgamuukw and the Aboriginal Land Question" Victoria, British Columbia: Sept. 10,11, 1991). Elliot, David. "In the Wake of Sparrow: A New Department of Fisheries?" 40 University of New Brunswick Law Journal 23. Ellis, Mark. Fiduciary Duties in Canada Richard De Boo, 1988).  (Don Mills, Ontario:  Bruce Felthusen, "The Gender Wars: "Where The Boys Are" 4 Canadian Journal of Women and the Law 66.  (1990)  175 Findlay, Barbara. "With All of Who We Are: A Discussion of Oppression and Dominance" (Vancouver: Lazara Press, 1991). Fish., S. "Wrong Again" (1983) 62 Texas Law Review 200 at 312. Flax, Jane. "Postmodernism and Gender Relations in Feminist Theory" in Frase and Nicholson (eds.) Postmodernism/Feminism (London: Routledge, 1991) 39. Foucault, Michel. Colin Gordon (editor) Power/Knowledge York: Pantheon Books,1980).  (New  Foucault, Michel. The Archaeology of Knowledge (London: Travistoc, 1972); Power/Knowledge: Selected Interviews and Other Writings) Colin Gordon (ed.) (New York: Pantheon Books, 1977) . Foucault, Michel. The Travistoc, 1972).  Archaeology  of  Knowledge  (London:  Foucault, Michel. The History of Sexuality Vol. 1 (New York, Pantheon Books, 1978). Freedman, Anne "Feminist Legal Method in Action: Challenging Racism, Sexism and Homophobia in Law School: (1990) 24 Georgia Law Review 849. Fudge, Judy. of and Further Journal  "The Public/Private Distinction: The Possibilities the Limits to the Use of Charter Litigation to Feminist Struggles: Vol. 25, No. 3 Osgoode Hall Law 485.  Getches and Wilkinson Federal Indian Law (St. Paul, Minnesota: West Publishing, 1986). Gramsci, Antonio. Selections From The Prison Notebooks (Howe and Nowell Smith (eds.)(London: Lawrence and Wishart, 1971). Greer, E. "Antonio Gramsci and Legal Hegemony" in D. Kairys (ed.) The Politics of Law (1982), p. 304. Hawkes, David, Maslove, Allan. "Fiscal Arrangements for Aboriginal Self-Government " in Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles (Ottawa: Carleton University Press, 1989) p. 93. Herman, Didi. "Sociologically Speaking: Law, Sexuality and Social Change" (1991) 2(2) The Journal of Human Justice 57.  176 Hogg, Peter. "Is the Supreme Court of Canada Biased in Constitutional Cases? (1979) 57 Canadian Bar Review 721, at 722. Hudson, Michael. "Fiduciary Obligations of the Crown Towards Aboriginal Peoples" (Conference Paper: "Delgamuukw and the Aboriginal Land Question" Victoria, British Columbia: Sept. 10,11, 1991). Hurley, John. "The Crown's Fiduciary Duty and Indian Title: Guerin v. The Queen" (1985) 30 McGill Law Journal 559. Galloway, Don. "Critical Mistakes" in R. Devlin, (ed.) Canadian Perspectives on Legal Theory (Toronto: Edition Motgomery Publiations, 1991), p. 25. Gavigan, Shelly. "Law Gender and Ideology" in A. Bayefsky, (ed.) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988). Glasbeek and Mandel, "The Legalization of Politics in Advanced Capitalism: The Canadian Charter of Rights and Freedoms" (1984) 2 Socialist Studies/Etudes Socialistes 84. Hutchinson, Allan. "Telling Tales (Or Putting the Plural in Pluralism)" (1985) Osgoode Hall Law Journal 681. Hutchinson, Allan. "Crits and Cricket: A Deconstructive Spin (Or was It a Googly?) in Richard Devlin, ed. Introduction to Jurisprudence. (Toronto: Carswell, 1991). p., 181. Jackson, Michael. "Locking Up Natives in Canada" (1989) 23 U.B.C. Law Review 215. Indian Self-Government in Canada - Report of the Special Committee on Indian Self-Government (Ottawa: House of Commons, 1983) . Johnston, Darlene. "A Theory of Crown Trust Towards Aboriginal Peoples" (1986) 12 Ottawa Law Review 307. Krotz, L. . Indian Country: Inside Another Canada (Toronto: McClelland and Steward, 1990). hooks, bell."talking back" and "when I was a young soldier for the revolution: coming to voice", in Talking Back: thinking feminist, thinking black (Boston: South End Press, 1989).  177 Hunt, Alan. "The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law" Law and Society Review 19 (1985) 1. Hunt, "The Big Fear: Law Confronts Post-Modernism" McGill Law Journal 507. Kairys, David. The Books,1982).  Politics  of  Law  (New  York:  (1990) 35 Pantheon  Kelman, Mark. A Guide to Critical Lecral Studies (Cambridge, Massachussets: Harvard University Press, 1986) Kelman, Mark. "Trashing" (1984) 36 Stanford Law Review 293. Kennedy, Duncan. "Critical Theory, Structuralism, and Contemporary Legal Scholarship" (1985-1986) 21 New England Law Review 209. Kline, Marlee. "Race, Racism and Feminist Legal Theory" (1989) 11 Harvard Women's Law Journal 115. Kymlicka, Will. Liberalism, Clarendon Press, 1989).  Community  and  Culture  (Oxford:  Lahey, Kathleen. "Feminist Theories of (In)Equality" in S. Martin and K. Mahoney, eds. Equality and Judicial Neutrality (Toronto: Carswell, 1987) p. 85. Lahey, Kathleen. ...Until Women Themselves Have Told Us All There Is To Tell..." (1985) 23 Oscroode Hall L.J. 519. Lahey, Kathleen. On Silences, Screams and Scholarship: An Introduction to Feminist Legal Theory" in Richard Devlin, ed. Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery Publications, 1991), p. 319. Little Bear, Leroy. and M. Boldt, J.A. Long, eds. Pathways to Self-Determination: Canadian Indians and the Canadian State (Toronto: U of T Press, 1984). Christine Littleton, "In Search of Feminist (1987) 10 Harvard Women's Law Journal 1.  Jurisprudence"  Lorde, Audre. "The Master's Tools Will Never Dismantale the Master's House" in A. Lourde Sister Outsider (Trumansburg, New York: The Crossing Press, 1984). Lyons, Orens., "Traditional Native Philosophies Relating to Aboriginal Rights" in The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1995). pp. 19-23.  178 Lyon, Noel "An Essay on Constitutional Interpretation" (1988) Osgoode Hall Law Review 95. McDonnell,Diane. Theories of Discourse: An Introduction (Oxford: Basil Blackwell, 1986). MacKinnon, Catherine "Whose Culture? A Case Note on Martinez v. Santa Clara Pueblo" in Feminism Unmodified. (Cambridge: Harvard University Press, 1987), p.63. Mackinnon, Catherine. Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987). Macklem, Patrick. "First Nation Self-Government and the Borders of the Canadian Legal Imagination" (1991) 36 McGill Law Journal 382. Mandell, Louise. "Native Culture on Trial" in Equality and Judicial Neutrality eds. Sheila Martin and E. Mahoney (Toronto: Carswell, 1987), p. 358. Matsuda, Mari. "Looking to the Bottom: Critical Legal Studies and Reparations" (1987) 22 Harvard Civil Rights and Civil Liberties Law Review 323. Matsuda, Mari. "Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls Theory of Justice,"(1986) 16 New Mexico Law Review 613. McMurty, W.R. and A. Pratt, "Indians and the Fiduciary Concept, Self-Government and the Constitution: Guerin in Perspective" (1986) 3 Canadian Native Law Reporter 19. Menkel-Meadow, Carrie. "Feminist Legal Theory, Critical Legal Studies and Legal Education, or "The Fem-Crits Go to Law School" (1988) 38 Journal of Legal Education 61. Mandel, Michael. The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall and Thompson, 1989) 223. McWhinney, E. Canada and the Constitution: 1972-1982 (Toronto: University of Toronto Press, 1982). Mill, J.S.. On Liberty (New York: Crofts Classics, 1947). Milne, D.. The Canadian Constitution: From Patriation to Meech Lake (Toronto: Lorimer, 1989). Minow, Martha. "Supreme Court Forward: Justice Engendered" (1987) 101 Harvard Law Review 10  179 "Minutes of Proceedings and Evidence of the Standing Committee on Aboriginal Affairs Considering the Events at Kanesatake and Kahnawake during the Summer of 1990." Issue 47-58. Monture, Patricia. "Reflecting on Flint Women" in Richard Devlin, ed. Canadian Perspectives on Legal Theory (Toronto: Edmon Motgomery Publications, 1991), p. 351. Monture, Patricia. "Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yay-Gah" (1986) 2(1) Canadian Journal of Women and the Law 159. Ominayak, Bernard, and Ryan, J. "The Cultural Effects of Judicial Bias" in Equality and Judicial Neutrality eds. Sheila Martin and E. Mahoney (Toronto: Carswell, 1987), p. 346. Morse, Bradford. "Government Obligations, Aboriginal Peoples and Section 91(24)" in D. Hawkes (ed.) Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles (Ottawa: Carleton University Press, 1989). Petter, Andrew "The Politics of the Charter" (1986) Sup. Ct. Law Rev. 473. Petter, Andrew, and Allan Hutchinson, "Rights in Conflict: The Dilemma of Charter Legitimacy" Vol. 23:3 U.B.C. Law Review 531. Petter, and Monahan. "Developments in Constitutional (1987) 9 Supreme Court Law Review 76.  Law"  Petney, William. "The Rights of the Aboriginal People of Canada and the Constitution Act, 1982: Part I - The Interpretive Prism of s. 25 " (1988) 22 University of British Columbia Law Review 21. Petney, William. "The Rights of the Aboriginal People of Canada and the Constitution Act, 1982: Part II - The Substantive Guarantee " (1988) 22 University of British Columbia Law Review 207. Poff, Deborah C.. "Feminism and Canadian Justice: How Far Have We Come? (1990) 2 Canadian Journal of Human Justice 93. Pointing, J.R. (ed.) Arduous Journey: Canadian Indians and Colonization (Toronto: McClelland and Steward, 1986). Razack, Sherene. Canadian Feminism and the Law: The Women's Legal Education Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991).  180 Rawls, John. A Theory of Justice (Cambridge: Harvard University Press, 1971. Rifkin, Janet. "Towards a Theory of Law and Patriarchy" (1980) 3 Harvard Women's Law Journal 83.  Romanov, R., J. Whyte, and H. Leeson, Canada Notwithstanding: The Making of the Constitution 1976-1982 (Toronto: Methuen, 1984). Sandel, Michael. Liberalism and its Critics (Oxford: Blackwell, 1984). Sanders, Doug. "Pre-Existing Rights: The Aboriginal Peoples of Canada (Sections 25 and 35) in Beaudoin and Ratushny The Canadian Charter of Rights and Freedoms (Toronto: Carswell,1989) 730. Sanders, Doug. "Article 27 and Aboriginal Peoples in Canada" in Multiculturalism and the Charter: A Legal Perspective. (Toronto: Carswell, 1987), p. 156. Sanders, Doug. "The Rights of the Aboriginal Peoples of Canada" (1983) 61 Canadian Bar Review 314. Sanders, Doug. "An Uncertain Path: The Aboriginal Constitutional Conferences" in Weiler and Elliot, Litigating the Values of A Nation: The Canadian Charter of Rights and Freedoms (Vancouver, Carswell, 1986), p. 63. Scales, Anne. "Towards a Feminist Jurisprudence" (1980-81) 56 Indiana Law Journal 375, at 378. Schneider, Elizabeth. "The Dialectic of Rights and Politics: Perspectives From the Women's Movement" (1986) 61 New York University Law Review 589. Schwartz Bryan, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986). Scott, Ian. "Respective Roles and Responsibilities of Federal and Provincial Governments Regarding the Aboriginal Peoples of Canada", p. 351. in Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles (Ottawa: Carleton University Press, 1989).  181 Sheehy, Elizabeth, Boyd, Susan., Canadian Feminist Perspectives on Law: An Annotated Bibliography of Interdisciplinary Writings (Special Publication of Resources for Feminist Research, 1989). Siggner, A.J., "The Socio-Demographic Conditions of Registered Indians" in J.R. Pointing (ed.) Arduous Journey: Canadian Indians and Decolonization (Toronto: McClelland and Steward, 1986), p. 57. Slattery, Brian. "The Hidden Constitution: Aboriginal Rights in Canada", (1984) Vol 32 American Journal of Comparative Law 361. Slattery, Brian. "The Constitutional Guarantee of Aboriginal and Treaty Rights" (1982-83) 8 Queen's Law Journal 232. Slattery, Brian. "First Nations and the Constitution: A Question of Trust" (1992) 71 Canadian Bar Review 261, p. 271. Slattery, Brian. "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Review 727. Smart, Carol. Feminism and the Power of Law (London: Routledge, 1989). Smart, Carol."Feminism and Law: Some Problems of Analysis and Strategy" (1986) 14 International Journal of Sociology of Law 109. Shepherd, J.C. "Towards a Unified Concept Relationships" (1981) 97 L.O.R. 51.  of  Fiduciary  Smith,J.C. "Psychoanalytic Jurisprudence and the Limit of Traditional Legal Theory" in R. Devlin, ed. Canadian Perspectives in Legal Theory (Toronto: Edition Motgomery Publications, 1991) 223. Sumner, Colin. Reading Ideolgoies: An Investigation into the Marxist Theory of Ideology and Law (London: Routledge, 1979.) Tennant, Chris. "Justification and Cultural Authority in s. 35(1) of the Constitution Act, 1982: R. v. Sparrow" (1991) 14 Dalhousie Law Journal 372. "The Aboriginal Constitutional Process:" An Historic Overview" (Ottawa: Government of Canada, 1991).  182 "The Summer of 1990" Fifth Report of the Standing Committee on Aboriginal Affairs" (House of Commons, May 1991). Thompson, E.P.. Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), pp. 265-267. Thompson, Mark.(Ed.) "Sex and the Politics of Identity: An Interview with Michel Foucault" in Gay Spirit: Myth and Meaning (New York: St. Martin's Press, 1987) p. 25. Turpell, Mary Ellen. "Aboriginal Peoples and the Canadian Charter Interpretive Monopolies, Cultural Differences" (1989/90) 6 Canadian Human Rights Yearbook 3. "Unfinished Business: An Agenda for All Canadians in the 1990's" Second Report of the Standing Committee on Aboriginal Affairs (House of Commons, March 1990) Unger, Roberto. The Critical Legal Studies Movement (Cambridge, Mass. Harvard University Press, 1986) Wa'Gisday and Delgam Uuks. "The Spirit in the Land: The Opening Statement of the Git'ksan and Wet•suwet•en Hereditary Chiefs in the Supreme Court of British Columbia" (Gabriola, B.C.: Reflections, 1989), or, [1988] 1 Canadian Native Law Reporter 185. Waters, Donovan. "The Indian Peoples and the Crown" paper presented at The International Symposium of Trust, Eguity and Fiduciary Relationships, University of Victoria, Victoria, British Columbia, February 14-17, 1988. Weinrib, Ernest "The Fiduciary Obligation" (1975) 25 University of Toronto Law Journal 1. West, Cornell. "The Role of Law in Progressive Politics" in Kairys (ed.) The Politics of Law (revised edition) (new York: Pantheon Books, 1990) 468. Williams, Patricia. " Alchemical Notes: Reconstructing Ideals from Deconstructed Rights" (1987) 22 Harvard Civil Rights and Civil Liberties Law Review 401. Williams, Robert. "Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Colour" (1987) 5 Law and Inequality 103. Wright, Ronald. Stolen Continents: The New World Through Indian Eyes Since 1492 (Toronto: Viking, 1991).  183 "You Took My Talk" Fourth Report of the Standing Committee on Aboriginal Affairs (House of Commons, December 1990). Zlotkin, Norman. Unfinished Business: Aboriginal Peoples and the 1983 Constitutional Conference (Kingston: Institute of Intergovernmental Relations, Queen's University, 1983).  

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