Idle No More: What This White Man Thinks Indians Deserve

Elyse Bruce asked me to research the complex topics of a “fiduciary” and of “fiduciary relationships” and outline their general definitions in an easy to understand way, to give readers and visitors to this blog a better understanding of the Crown’s fiduciary relationship with First Nations Peoples.

After spending a considerable amount of time paging through documents, I have come to understand two things:

1) There are many different kinds of fiduciaries and fiduciary relationships.

2) Given how many different kinds of fiduciaries and fiduciary relationships there are, and the fact that they are essentially tailor-made for the purposes they are created for, it is easy to understand how people can get confused by the terms and how they apply in terms with the Crown’s fiduciary relationship with Aboriginal peoples.

To spare people numerous trips to the library, I am providing links to online sources which I am only going to quote in part or paraphrase here. In this way, you can, at your leisure, more thoroughly read about the topics, reviewing the sources over and over until you are satisfied with your grasp of the material.

It should be stressed that Canadian law differs quite a bit from law in the United States in many respects, so people from the United States should not take what I have written here and assume it applies to them.

Put succinctly, The Canadian Encyclopedia  says that the ”legal system recognizes a multitude of special relationships in which one party is required to look after the best interests of the other in an exemplary manner. These relationships, which include solicitor/client, physician/patient, priest/parishioner, parent/child, partner/partner, director/corporation and principle/agent, are called fiduciary relationships.”

One such fiduciary relationship, which the Crown specifically recognizes and details, is the Crown’s fiduciary relationship with Aboriginal peoples, and I will let you know where to find specific information on what that relationship is as the Crown defines it momentarily.

First, it is essential that people understand that ”[f]iduciary relationships entail trust and confidence and require that fiduciaries act honestly, in good faith, and strictly in the best interests of the beneficiaries of such relationships. The courts have developed a basic test for determining whether fiduciary obligations arise from a relationship: first, the fiduciary has the ability to exercise some discretion or power; second, the fiduciary can unilaterally exercise that power so as to affect the interests of the beneficiary; third, the beneficiary is in a position of vulnerability at the hands of the fiduciary.”

That quote once again comes from The Canadian Encyclopedia. For the purposes of this discussion, Canada and the Crown are the fiduciary, indigenous peoples are the beneficiary.

There are many ways that the person or entity acting as fiduciary can breach their fiduciary duty. Negligence is one. Willful exploitation for personal gain is another. Many rules are in effect to prevent the fiduciary from profiting at the expense of the beneficiary, and those who have a fiduciary appointed over them would do well to know what those rules are so that they can better determine whether or not exploitation has taken place.

Here are some words which are of vital importance to anyone who is a beneficiary of a fiduciary:

Accordingly, any losses flowing from the breach, such as a loss of an investment, or physical and mental suffering flowing from sexual or other abuse, will be compensated for. As well, with a view to deterring breach of fiduciary duty, any improperly obtained profit will be remitted to the beneficiary. In addition, breaching fiduciaries are more likely to have punitive damages awarded against them than are ordinary defendants. Fiduciary obligations can continue even after the formal termination of any contractual relationship between the fiduciary and the beneficiary.”

I am non-Native, but were I of indigenous extraction, I would be asking myself the following questions:

1) Has the government mismanaged funds owed by treaty to myself or my nation/band/tribe/reservation?

2) Am I, or is my nation/band/tribe/reservation, owed compensation due to the confiscation and/or sale of land, said land having a specific and fair appraisable investment value?

3) Are residential school survivors owed compensation for the abuse they suffered there, even though the schools have since been closed (the last one closing in 1996)?

As you continue to learn about breaches of fiduciary duty in your research, you may have additional questions about whether legal action may be warranted.

People interested in learning more about the Crown’s fiduciary duty to indigenous peoples would do well to read “The Crown’s Fiduciary Relationship With Aboriginal Peoples.” (PRB 00-09E) This document can be found online here by way of this LINK.

The document is published by the Parliamentary Research Branch of the Library of Parliament, a department that ”works exclusively for Parliament, conducting research and providing information for Committees and Members of the Senate and House of Commons. This service is extended without partisan bias in such forms as Reports, Background Papers and Issue Reviews. Research Officers in the Branch are also available for personal consultation in their respective fields of expertise.”

It should be noted that the link I provided goes to the revised document. The original was published August 10th, 2000, and the revised document was published December 18th, 2002. My understanding is that the document is a summary only, and should not be taken to mean that these are the actual terms of the fiduciary relationship.

What I am able to glean from the document is that the Crown’s fiduciary relationship with “Aboriginal peoples” arguably begins as early as 1763.

A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over ‘Indians, and Lands Reserved for Indians.’

“The Crown’s Fiduciary Relationship With Aboriginal Peoples” also makes reference to the Indian Act, the Constitution Act of 1982, and Supreme Court of Canada comments and rulings.”

“The Crown’s Fiduciary Relationship With Aboriginal Peoples” says that “In the 1950s, the Court observed that the Indian Act ‘embodie[d] the accepted view that these aborigines are … wards of the state, whose care and welfare are a political trust of the highest obligation.’

In other words, the Crown is the fiduciary, and “aborigines” are the beneficiaries.

Other points of importance gotten from the “The Crown’s Fiduciary Relationship With Aboriginal Peoples”:

1) In 1984, the Court ruled in Guerin v. R that “in the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind.”

2) In 1996, the Court ruled in R. v Adams, that “[i]n light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights…in the absence of some explicit guidance.”

3) In 2002, the Court ruled in Wewaykum Indian Band v. Canada that “the Crown is not an ordinary fiduciary and is obliged, depending on the context, to have regard to the interests of many parties, not just the Aboriginal interest.”

4) “The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) saw the fiduciary relationship as originating in treaties and other historical links.”

“The Crown’s Fiduciary Relationship With Aboriginal Peoples” has additional value in that it cites many different documents which outline fiduciary relationships as they pertain to the indigenous peoples of Canada. The document also makes plain that although these reference documents exist, and though there have been many Supreme Court comments and decisions, the fiduciary relationship between the Crown and indigenous people is still fluid, and not totally defined.

My purely personal opinion is that the relationship needs to be defined despite the fact that the scope and scale of the fiduciary responsibility is constantly changing and evolving. While I can understand that fiduciary responsibilities toward indigenous peoples vary by specific circumstances, there needs to be an all-encompassing definition with specific rules that precisely describe what breaches of fiduciary duties look like. The courts of Canada are tied up with cases in which breach of fiduciary duty is alleged, but is difficult to prove simply because fiduciary duties on the part of the fiduciary are ill-defined.

Case in point:

A-802-95 / A-642-95

( T-1878-90 )

Chief Bernard Charles and Councillors Mabel Charles and Leonard Wells,
as the elected Councillors of the Semiahmoo Indian Band,
suing on the their own behalf and on behalf of
all other members of the Semiahmoo Indian Band (Appellants)

v.

Her Majesty the Queen in Right of Canada (Respondent)

Indexed as: Semiahmoo Indian Band v. Canada (C.A.)

To state my opinion in a very few words:  Is it reasonable to appoint an entity to have responsibilities over a group of people when that entity’s role is not clearly defined? The lack of definition as to what a fiduciary is, allows the fiduciary to get away with breach without consequence while the “beneficiaries” of the fiduciary suffer.

So what do First Nations peoples deserve? They deserve what non-Natives already get: a fiduciary who serves their client in the most moral, legal and ethical way.

Thomas D. Taylor

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