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.
The Crown Fiduciary Duty at the Supreme Court of Canada: Reaching across Nations, or Held within the Grip of the Crown?
Canada in International Law at 150 and Beyond Paper No. 6