Beginning with Guerin v R in 1984, the Supreme Court of Canada has imposed a fiduciary duty on the Crown in its dealings with Aboriginal land. The doctrine of a Crown fiduciary duty came to anchor the constitutional framework developed by the courts for reconciling “the pre-existence of aboriginal societies with the sovereignty of the Crown.” There is ambiguity and tension running through this judicial doctrine, revolving around the question: Is the goal reconciliation across legal systems and the distinct societies in which they are grounded, or within a constitutional system grounded fundamentally in the Crown’s assertion of sovereignty? This paper aims to provide an overview of the current state of the law and the tension running through it between contrasting political visions: on the one hand, a nation-with-nation (or “transnational”) vision of reconciliation and, on the other, a vision of reconciliation achieved under the umbrella of Crown sovereignty.

Part of Series

Marking 150 years since Confederation provides an opportunity for Canadian international law practitioners and scholars to reflect on Canada’s past, present and future in international law and governance. This series of essays, written in the official language chosen by the authors, that provides a critical perspective on Canada’s past and present in international law, surveys the challenges that lie before us and offers renewed focus for Canada’s pursuit of global justice and the rule of law.
The project leaders are Oonagh Fitzgerald, director of the International Law Research Program at the Centre for International Governance Innovation (CIGI); Valerie Hughes, CIGI senior fellow, adjunct assistant professor of law at Queen’s University and former director at the World Trade Organization; and Mark Jewett, CIGI senior fellow, counsel to the law firm Bennett Jones, and former general counsel and corporate secretary of the Bank of Canada. The series will be published as a book entitled Reflections on Canada’s Past, Present and Future in International Law/ Réflexions sur le passé, le présent et l’avenir du Canada en matière de droit international in spring 2018.

  • Ryan Beaton is a legal scholar whose primary interests include constitutional law, Aboriginal law, Indigenous land rights and legal philosophy. His research focuses on the challenge posed by the evolving conception of Aboriginal title to traditional notions of state sovereignty.