38 Binnie J., for the Court, made the same point in Wewaykum Indian Band v. Canada, at para. 96: “The Crown can be no ordinary fiduciary; it wears many hats and represents many interests, some of which cannot help but be conflicting”. Guerin exceptionally recognized that the Crown was under a fiduciary duty in the management of Indian lands for their benefit. But the Court there noted, at p. 385, that the fiduciary duty owed to the Aboriginal peoples of Canada is unique and grounded in analogy to private law:
- The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis (a term which cannot be included in a wider concept and has been used in the context of Canadian Aboriginal law to describe the nature of Aboriginal title) relationship, it is not improper to regard the Crown as a fiduciary. [Emphasis added.]
Noting the unique nature of the fiduciary duty owed by the Crown in the Aboriginal context, courts have suggested that this duty must be distinguished from other relationships: Hogan v. Newfoundland (Attorney General) (Nfld. C.A.), at paras. 66-67.
39 In R. v. Sparrow, the Court confirmed that the fiduciary duty owed by the Crown to Aboriginal peoples with respect to their lands is sui generis, at p. 1108:
- The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation. In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship. [Emphasis added.]
Similarly, in Wewaykum, Binnie J. suggested that the fiduciary duty owed by the Crown to Aboriginal peoples is not restricted to instances where the facts raise “considerations ‘in the nature of a private law duty’” (para. 74).
40 The unique and historic nature of Crown-Aboriginal relations described in these cases negates the plaintiff class’ assertion that they serve as a template for the duty of the government to citizens in other contexts. The same applies to the only other situation where a Crown fiduciary duty has been recognized — such as where the Crown acts as the public guardian and trustee.
…
48 In sum, while it is not impossible to meet the requirement of an undertaking by a government actor, it will be rare. The necessary undertaking is met with respect to Aboriginal peoples by clear government commitments from the Royal Proclamation of 1763 to the Constitution Act, 1982 and considerations akin to those found in the private sphere. It may also be met where the relationship is akin to one where a fiduciary duty has been recognized on private actors. But a general obligation to the public or sectors of the public cannot meet the requirement of an undertaking.
49 For similar reasons, where the alleged fiduciary is the government, it may be difficult to establish the second requirement of a defined person or class of persons vulnerable to the fiduciary’s exercise of discretionary power. The government, as a general rule, must act in the interest of all citizens: Bennett v. British Columbia, at paras. 61 and 71; and Drady v. Canada, at para. 28. It is entitled to make distinctions between different groups in the imposition of burdens or provision of benefits, subject to s. 15 of the Charter, which forbids discrimination. As stated in Galambos, the claimant must point to a deliberate forsaking of the interests of all others in favour of himself or his class. In the Aboriginal context, an exclusive duty in relation to Aboriginal lands is established by the special Crown responsibilities owed to this sector of the population and none other. Similarly, where the government duty is in effect a private duty being carried out by government, this requirement may be established. Outside such cases, a specific class of persons to whom the government owes an exclusive duty of loyalty is difficult to posit.
50 No fiduciary duty is owed to the public as a whole, and generally an individual determination is required to establish that the fiduciary duty is owed to a particular person or group. A fiduciary duty can exist toward a class — for example, adults in need of a guardian or trustee, or children in need of a guardian — but for a declaration that an individual is owed a duty, a person must bring himself within the class on the basis of his unique situation. Group duties have not often been found; thus far, only the Crown’s duty toward Aboriginal peoples in respect of lands held in trust for them has been recognized on a collective basis.
51 Finally, it may be difficult to establish the requirement that the government power attacked affects a legal or significant practical interest, where the alleged fiduciary is the government. It is not enough that the alleged fiduciary’s acts impact generally on a person’s well-being, property or security. The interest affected must be a specific private law interest to which the person has a pre-existing distinct and complete legal entitlement. Examples of sufficient interests include property rights, interests akin to property rights, and the type of fundamental human or personal interest that is implicated when the state assumes guardianship of a child or incompetent person. The entitlement must not be contingent on future government action. For example, in Authorson, the right to the funds had already fully vested in the veterans’ hands before the Crown took on the responsibility for administration: Authorson (C.A.), at paras. 60, 73(b) and 73(h); in the Aboriginal context, see Guerin, at p. 385. In other circumstances, a statute that creates a complete legal entitlement might also give rise to a fiduciary duty on the part of government in relation to administering the interest.
Supreme Court of Canada Discusses Crown’s Fiduciary Duty to First Nations
In yesterday’s
Alberta v. Elder Advocates of Alberta Society,
a Supreme Court case concerning the provinces’
fiduciary responsibility for the cost of medical
care in nursing homes, the Court discussed at
length, the Crown’s fiduciary duty in the context of
Aboriginal law. Below are some excerpts (citations
removed).