The relationship between the Crown and the Aboriginal peoples of Canada, who . leged that the Crown owed a fiduciary duty to them, arising from a trust, and. Canada's Aboriginal peoples have always held a unique legal and in the unique Crown-Aboriginal relationship, the fiduciary obligation owed. 30(2) Crown's Fiduciary Duties To Aboriginal Peoples least responsible for . relationships that Indigenous Peoples have with the Arctic.
If the answer is no, does it result in discrimination or a violation of rights when the Doctrine of Discovery is removed? This is the spirit of colonialism, the agenda of a society that believes it has no more need for friends because of its apparent wealth, power and superiority. The spirit of the treaties, by contrast, is the spirit of a time when the ancestors of today's Canadians needed friends and found them.
The Government of Canada will need to reassess treaties and Treaty rights in the context of Indigenous sovereignty, without the Doctrine of Discovery. That sovereignty will need to be defined by Immemorial rights, international rights, and self-determination. However, there is no data base on the Immemorial rights of Indigenous Peoples within various Indigenous nations.
We have already seen see above that Aboriginal rights created by section 35 are defined by a system based on the Doctrine of Discovery and are part of an alternate rights regime that replaces Immemorial rights. We will use the Aboriginal right to consultation as an example of the disconnect between Aboriginal and Immemorial rights: There will be an agreement. However, common law for the Aboriginal right to consultation indicates: Aboriginal rights recognized under section 35 can be infringed upon or denied when required;21 and, 2.
The same is true for other section 35 Aboriginal rights including: Self-government, fishing, hunting, and etc.
Immemorial rights are given by the Creator and have no end. Aboriginal rights can be removed extinguished from Indigenous Peoples by the Crown in one of four ways: The removal of section 35 from the Constitution Act. The Indian Act provides a mechanism to extinguish First Nation status, and therefore Aboriginal rights, through bloodline dilution;24 3.What is ABORIGINAL TITLE? What does ABORIGINAL TITLE mean? ABORIGINAL TITLE meaning & explanation
Treaties and land claims execute a voluntary surrender of Aboriginal rights and title;25 and, 4. Legislation prior to As indigenous Peoples take their sovereign places in Canada, the Government of Canada and Indigenous Peoples will need to renew their relationship with the inclusion of Immemorial rights into the Constitution Act and the rest of the rule of law.
Indigenous Peoples in Canada are sovereign and that sovereignty predates the Crown in Canada. The authority of that sovereignty extends over their communities and traditional territories. That jurisdictional authority is defined by their Immemorial rights, including rights to land. An Aboriginal Right of Aboriginal Title: The Crown assumed sovereignty in Canada through the Doctrine of Discovery.
The Crown's Fiduciary Relationship with Aboriginal Peoples (PRB E)
At the time sovereignty was assumed, the Crown acquired underlying title to Indigenous land but it was burdened by the pre-existing legal right of Indigenous Peoples to use and occupy their land. Consequently, Indigenous peoples have been forced to deal with judicial systems that are wedded to an archaic and racist principle of papal law…. Sovereignty is presumed to reside in the Crown, and thus the Crown has the right to own Native land.
Native peoples are regarded as having an Aboriginal claim on land, but this claim is not equivalent to ownership. Aboriginal title relates to rights of occupation and use, not underlying title.
Thus, all Aboriginal land rights are limited in Canada. Any land right can be contravened if the government deems such a move necessary for economic or other reason.
The Crown must consult Indigenous communities on Immemorial rights to recognize and reconcile with Indigenous sovereignty over traditional territories as Indigenous people mpove forward with self-determination. Indigenous self-government in Canada was actually started with the Indian Act when it was first brought into legislation in The band governance system in the Indian Act was part of a profoundly racist forced assimilation system in Canada commonly referred to as cultural genocide.
The band governance system replaced pre-existing sovereign Indigenous governance systems. Service jurisdiction areas include: Agriculture, health, education, government, policing, social services and child welfare.
Some First Nation communities are moving away from the Indian Act governance system towards self-government under section 35 using alternate legislation enacted by the federal government.
Consequently, self-government under section 35 replaces sovereign self-determination bringing Indigenous Peoples back under the authority of the Crown into a governance model scheme similar to the Indian Act. They, along with the labour movement, the agricultural lobby, or any other interest group are to be listened to respectfully, but their demands are subject to the political agenda and trade-offs of the day.
They are not seen as having legitimate political authority, as being nations entitled to treatment as nations. Canada,  2 SCRat p. While the federal government has funded the delivery of many programs and services, it has not clearly defined the type and level of services it supports. Canada,  2 SCR A Contextual Approach, 2nd Edition.
More specifically, the court held that fiduciary obligations are present where there is a cognizable Aboriginal interest in relation to which the Crown is exercising discretionary authority.
Vanderpeet,  2 S. Rethinking the Contemporary Indigenous Rights Discourse.
Looking Forward, Looking Back. The Relationship in Historical Perspective. Chapter 6, Stage Three: Displacement and Assimilation; 5. Differing Assumptions and Understandings. The Wewaykum decision appears to enclose a similar position.
Explicit or implicit governmental acknowledgement of the Crown-Aboriginal fiduciary relationship may be found in, for example: While not appearing to state the fiduciary relationship directly, the document emphasizes objectives relating to renewed relationships, partnerships, and shared responsibilities; section 5.
It further indicates that the scope of the obligations, and thus the nature of associated policy implications, will vary with the individual circumstances at issue. Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of Supreme Court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self-government negotiations. Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship.
Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. It holds and administers fiduciary obligations to our peoples at the same time as it must observe its political obligations to the rest of Canada. It advocates one moment on our behalf and in the next moment, through the Justice Department, against us. Supreme Court of Canada decisions confirm that the fiduciary relationship does have legal and constitutional scope.
The concept itself and obligations arising from it are still being developed. John Burke Sweet and Maxwell Ltd.
Marshall,  3 S. See, for example, R. Canada Minister of Canadian Heritage 1 F. Canada,  3 C. British Columbia Minister of Forests64 B.
Badger,  1 S.