The Grand Council of the Crees

Section 10, Sovereign Injustice - Grand Council of the Crees

10. Fiduciary Responsibilities of Governments in the Context of Qu?bec Secession

Posted: 0000-00-00

10.1 Fiduciary Obligations of Canadian Government

10.2 Fiduciary Obligations of Québec Government

10 Fiduciary Responsibilities of Governments in the Context of Québec Secession

Recently, as the PQ government continues to take steps towards establishing an independent Québec state, Indians and Inuit in Québec have called for the federal government to exercise its fiduciary responsibility and safeguard their rights and interests. {1239} At least one author has suggested that the government of Canada exercise its fiduciary responsibility by ensuring that an independent Québec formally accept the fiduciary obligations of Canada as part of an overall agreement to respect the rights of Aboriginal peoples. {1240} In this regard, it is also suggested that: "As for the [Canada-U.S. Free Trade Agreement {1241} ] and [North American Free Trade Agreement {1242} ]..., there is no doubt that Canada could make its consent to Quebec's entry as a new partner conditional upon obtaining such guarantees." {1243}

However, such proposals fail to adequately recognize the right of Aboriginal peoples in Québec to determine their own future (including the right to choose to remain in Canada). Therefore, they are rejected as an acceptable option in the present Study.{1244}

Aside from the rightful exercise of self-determination by Aboriginal peoples in the context of Québec secession, it is important to consider what fiduciary obligations exist on the part of non-Aboriginal governments in Canada. These obligations are considerably reinforced when they are of a constitutional nature.

Further, it would be especially compelling for the Canadian government to respect the will and rights of Aboriginal peoples in the event of a unilateral declaration of independence by Québec. A secesionist action by the province would not only be unconstitutional, but it would lack legitimacy vis- a-vis Aboriginal peoples (as this Study demonstrates).

10.1 Fiduciary Obligations of Canadian Government [top]

"...in the context of a UDI by Québec, the fiduciary obligations require Canada to maintain its relationship with Aboriginal peoples in Quebec for as long as necessary to protect their interests. The government of Canada has constitutional responsibility for Aboriginal peoples and cannot renounce that responsibility unilaterally. If Aboriginal peoples do not accept Quebec independence, the government of Canada has a constitutional obligation to ensure that their interests are protected in face of a UDI." {1245}

K. McNeil, 1995

In regard to fiduciary responsibility towards Aboriginal peoples, the primary duty lies with the federal (not provincial) government. This duty stems from the historical relationship Aboriginal peoples have had and continue to have with the Crown. In the Draft Report of the National Assembly's Committee on Sovereignty, the Crown/Aboriginal fiduciary relationship is depicted as follows:

"Since the arrival of the Europeans, and especially after the British conquest, the aboriginal nations have lived under a fiduciary relationship with the Crown. The Crown is responsible for ensuring that the interests of the aboriginal peoples are protected." {1246} [Emphasis added.]

There are a number of constitutional and other instruments in Canada that reflect or include a fiduciary duty. In Sparrow v. The Queen, {1247} the Supreme Court of Canada describes the federal fiduciary obligation in s. 35(1) of the Constitution Act, 1982 as follows:

"This Court found [in Guerin {1248}] that the Crown owed a fiduciary obligation to the Indians with respect to the lands. 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 (1981), 34 O.R. (2d) 360 (C.A.), 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." {1249}
[Emphasis added.]

The fiduciary obligation in s. 35 applies both to the executive government as well as to the Parliament of Canada. In regard to the latter, the Supreme Court in Sparrow indicates that "federal power [to legislate] must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights." {1250} Consequently, based on s. 35 alone, neither the federal executive nor Parliament could act against {1251} the rights and interests of Aboriginal peoples in Québec in the context of Québec secession without justification. {1252} Such justification would be most difficult to establish since the current actions of the PQ government lack both legality and legitimacy, especially in regard to the Aboriginal peoples concerned.

P. Monahan underlines the fiduciary obligations of the federal government under s. 35(1) as follows:

"Aboriginal opposition to Quebec's UDI would trigger the fiduciary obligations of the government of Canada. In fact, aboriginal groups in Quebec would be able to argue that section 35(1) obliges the Canadian government to oppose and contest a Quebec UDI made without their consent. If the Canadian government purported to recognize the validity of the Quebec UDI in the absence of appropriate aboriginal consent, aboriginal groups could seek a declaration from the courts that the act of recognition was unconstitutional." {1253} [Emphasis added.]

At the same time, it should be noted that federal fiduciary duty is not limited to that found in the Constitution Act, 1982. As early as 1763 when the Royal Proclamation of 1763 {1254} was declared, it was confirmed that Aboriginal nations live under the "protection" {1255} of the Crown. As B. Slattery indicates, "a special fiduciary relationship exists between the Crown and Aboriginal peoples" that is tantamount to a "constitutional trust" {1256} and is further described as follows:

"This [fiduciary] relationship is grounded in historical practices that emerged from dealings between the British Crown and Aboriginal nations in eastern North America, especially during the formative period extending from the founding colonies in the early 1600s to the fall of New France in 1760. By the end of this period, the principles underlying these practices had crystallized as part of the basic consitutional law governing the colonies, and were reflected in the Royal Proclamation issued by the British Crown on October 7, 1763." {1257} [Emphasis added.]

Similarly, M. Bryant links the Royal Proclamation to the existing fiduciary relationship between Aboriginal peoples and the Crown:

"...one could characterize the relationship as grounded in an omnibus undertaking, which is recognized by several statutes and treaties, and most notably by the Royal Proclamation, 1763. The undertaking was to act in the best interests of aboriginal peoples in the treatment of their lands, and, in the self-management of those lands." {1258} [Emphasis added.]

As P. Joffe and M.E. Turpel conclude, since "the Royal Proclamation is a constitutional instrument and...continues to have force in Canada, the fiduciary and other requirements in this instrument are of a constitutional nature." {1259}

Furthermore, in the Imperial Rupert's Land and North-Western Territory Order, {1260} extensive transfers of land to Canada were made by Great Britain subject to diverse terms and conditions that are of a constitutional nature. {1261} These transfers of land include the large portions of northern territory annexed to the province of Québec in 1898 and in 1912. As a basis for securing the 1870 Order, terms and conditions were included as expressed in joint Addresses of the Senate and House of Commons in Canada in December 1867 {1262} and in May 1869. {1263}

In the Canadian Parliament's May 1869 Address, the following term and condition is provided:

"That upon the transference of the territories in question to the Canadian Government it will be our duty to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer..." {1264}
[Emphasis added.]

This "duty to make adequate provision for the protection of the Indian tribes" is clearly a fiduciary duty {1265} and is one owed by the executive and legislative arms of the Canadian government. {1266} Evidence of the fiduciary nature of the commitments in the terms and conditions attached to the Rupert's Land Order is found in the Quebec Boundaries Extension Act, 1912, {1267} when the traditional territories of Aboriginal peoples were annexed to the province of Québec without the knowledge and consent of the peoples concerned:

"That the trusteeship of the Indians in the said territory, and the management of any lands now or hereafter reserved for their use, shall remain in the Government of Canada subject to the control of Parliament." {1268} [Emphasis added.]

This provision is only declaratory {1269} of a pre-existing fiduciary duty. Consequently, when this section was repealed by the Canadian Parliament in connection with the James Bay and Northern Quebec Agreement, {1270} the fiduciary obligation of the federal Crown continued to prevail. Not only does the preamble of the repealing statute affirm that the federal fiduciary responsibility continues, but the provision also confirms that the duty applies to both the Parliament and the government of Canada:

"AND WHEREAS Parliament and the Government of Canada recognize and affirm a special responsibility for the said Crees and Inuit".

Since the Canadian government duty of "protection" referred to in the Rupert's Land and North- Western Territory Order is provided in very broad terms, it would easily include the current context of Québec secession. This is especially the case, since Québec independence would entail far-reaching consequences for the Aboriginal peoples concerned. Like any fiduciary, the federal Crown must act according to the highest standards. As Dickson J. of the Supreme Court of Canada highlights in Guerin v. The Queen, {1271} "equity will...supervise the relationship by holding him to the fiduciary's strict standard of conduct." {1272} The learned Judge emphasizes that "[e]quity will not countenance unconscionable behaviour in a fiduciary, whose duty is that of utmost loyalty to his principal." {1273}

In addition, R. Dupuis & K. McNeil underline that, as part of its fiduciary duties, the federal government may have an affirmative duty to act to prevent infringements of rights by a provincial government:

"...in the context of an attempted infringement of an Aboriginal right by a province,...the federal duty may require active intervention by the federal government to protect the right. This is in keeping with the undertaking of Parliament, when Rupert's Land and the North-Western Territory were transferred to Canada in 1870..." {1274}

Moreover, the two authors indicate that the fiduciary duties that are owing to Aboriginal peoples in northern Québec are not limited to the constitutional instruments described above:

"...treaties and agreements [such as the James Bay and Northern Quebec Agreement] created obligations that are binding on the Crown in all its capacities {1275} and that now impose fiduciary obligations on Parliament as well, because of section 35(1) of the Constitution Act, 1982." {1276}

In a situation such as Québec secession, it would be wholly inadequate and an abdication of constitutional responsibility for the federal Crown to take measures solely at the time that Québec chooses to declare its independence. In particular, in the current context, the federal government must recognize and respect the right of Aboriginal peoples in Québec to exercise their right to self- determination and choose to remain in Canada (should they so desire). In determining their collective will, Aboriginal peoples' right to hold referendums or engage in other consultative processes must be fully respected by the Crown.

Should Aboriginal peoples in Québec decide to continue their nation-to-nation relationship with the federal Crown, the Canadian government, as fiduciary, cannot unilaterally transfer its obligations to a third party such as Québec. {1277} This prohibition is reinforced by such constitutional instruments as the Rupert's Land and North-Western Territory Order, where the terms and conditions explicitly require the "Canadian Government" to carry out its responsibilities to the Aboriginal peoples concerned. In addition, legislative authority in s. 91(24) of the Constitution Act, 1867 confers jurisdiction to Parliament and not to provincial legislatures in regard to Aboriginal peoples and their territories. Rather, if so desired by the Aboriginal peoples concerned, the federal government and Parliament must ensure that these peoples and their respective territories remain with a united Canada.

It should be noted that the Supreme Court of Canada has not had occasion to pronounce on the fiduciary responsibilities of the Crown in relation to Québec secession. Nor has Canada's highest court specified what the Crown's conduct and duties towards Aboriginal peoples should be prior to or during an action or event that entails the fiduciary role of the government. However, the Federal Court of Appeal has had the opportunity to determine what the role of the federal government should include during the various stages when a surrender of Aboriginal land takes place.

In Apsassin v. Canada, {1278} Stone J.A. clearly indicates that the fiduciary obligation of the federal Crown may be triggered "previous" to a surrender of land:

"[C]ases support the existence of a fiduciary relationship between the Crown and the Indians previous to [a] surrender, just as one has been recognized once a surrender has taken place." {1279}

In addition, Marceau J.A. emphasizes that fiduciary duties of the Crown arise before, at the time of, and subsequent to a surrender of reserve land. However, the Crown's obligations at each of these different stages would necessarily differ according to the circumstances:

"It is easy to realize that the duty of the Crown towards a Band, in respect of reserve land set aside for the use and benefit of the Band, cannot create the same obligations before, at the time of, or after surrender. While after surrender the obligations parallel those of a trustee, before and at the moment of surrender they are necessarily quite different and closer to those of a guardian and special advisor." {1280} [Emphasis added.]

Further, in Kruger v. The Queen, {1281} Heald J. indicates that the Crown's fiduciary responsibilities arise as soon as there is a "proposal" pertaining to Indian lands and such duties continue "throughout the negotiations":

"...on the facts in this case, such a fiduciary obligation and duty was a continuing one ? that is, it arose as a consequence of the proposal to take Indian lands and continued throughout the negotiations leading to the expropriations and thereafter including the dealings between the Crown and the Indians with respect to the payment of the compensation to the Indians in respect of [the lands concerned]." {1282}
[Emphasis added.]

Based on existing constitutional instruments and the above decisions of the Federal Court of Appeal, it can be concluded that the federal government would have fiduciary duties towards Aboriginal peoples in Québec in relation to any threat of Québec secession. These federal fiduciary responsibilities would arise as soon as there is a concrete proposal or action by Québec that would impact on Aboriginal peoples. According to the PQ government's draft Act respecting the future of Québec, external sovereignty constitutes a "proposal" that the Québec legislature may act upon following formal offers of economic and political partnership with Canada. {1283}

Even if there had been no explicit provisions of a fiduciary nature in Canadian constitutional instruments, the government of Canada (and Québec) could still incur fiduciary obligations in regard to Aboriginal peoples under certain circumstances. As indicated by Wilson J. in Frame v. Smith, {1284} a fiduciary duty can arise under the common law as follows:

"Relationships in which a fiduciary obligation has been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power." {1285}

In addition to all of the above obligations under Canadian domestic law, Canada has fiduciary responsibilities based on international law. {1286} In this regard, S.J. Anaya concludes:

"Viewed comprehensively, Canada's fiduciary obligation under customary and conventional international law entails securing for indigenous peoples the full enjoyment of human rights and, more particularly, securing for them rights of self-determination, cultural integrity, ownership or control over ancestral lands and resources, social welfare and development, and self- government." {1287}
[Emphasis added.]

In the context of Québec secession, Aboriginal peoples are especially vulnerable to the discretions and powers exercised respectively by Canada or Québec. This conclusion is apparent, whether or not such government actions prove to be legal or illegal, or whether they be legitimate or illegitimate. Therefore, there can be no doubt that fiduciary duties towards Aboriginal peoples would exist ? even in the absence of explicit provisions to that effect under Canada's Constitution. Those fiduciary obligations of the Canadian government cannot be fulfilled contrary to the wishes of the Aboriginal peoples concerned.

10.2 Fiduciary Obligations of Québec Government {1288} [top]

"...the James Bay and Northern Quebec Agreement could be a source of fiduciary obligations for the Quebec Crown, which is also a signatory to the agreement, to the extent of the commitments the Quebec government made in the agreement...[I]t is likely that the courts will extend the fiduciary obligations to the provincial Crown..." {1289}

R. Dupuis, 1995

It is not possible to argue that provincial governments cannot have fiduciary responsibilities towards Aboriginal peoples. A primary reason is that, under Canadian law, the categories of fiduciaries are not closed. {1290} Further, as already noted under the previous sub-heading, the common law provides that any person, including a provincial government, can place itself in a fiduciary position through its actions. Dickson J. of the Supreme Court of Canada makes clear in Guerin v. The Queen that it is the "nature of the relationship" that determines whether a fiduciary duty arises:

"It is the nature of the relationship, not the specific category of the actor involved that gives rise to the fiduciary duty. The categories of fiduciary, like those of negligence, should not be considered closed". {1291} [Emphasis added.]

Also, in Mitchell v. Peguis Indian Band, {1292} the notion of provincial fiduciary responsibility is left as an open possibility by Chief Justice Dickson of the Supreme Court of Canada:

"On its facts, Guerin only dealt with the obligation of the federal Crown arising upon surrender of land by Indians and it is true that, since 1867, the Crown's role has been played, as a matter of the federal division of powers, by Her Majesty in right of Canada, with the Indian Act representing a confirmation of the Crown's historic responsibility for the welfare and interests of these peoples. However, the Indians' relationship with the Crown or sovereign has never depended on the particular representatives of the Crown involved. From the aboriginal perspective, any federal- provincial divisions that the Crown has imposed on itself are internal to itself and do not alter the basic structure of Sovereign-Indian relations." {1293}
[Italics added, bold text underlined in original.]

Should Québec take steps to secede from Canada, the PQ government would be placing itself in a position that entails fiduciary responsibilities to the Aboriginal peoples in Québec. Generally, B. Slattery provides:

"The trust relationship attaches primarily to the Federal government, but it also affects Provincial governments in certain contexts...Since section 91(24) of the Constitution Act, 1867 makes the Federal government responsible for Indians and Lands Reserved for the Indians', the main burden of the trust relationship clearly falls on its shoulders. However, so long as the Provinces have powers and rights enabling them to affect adversely Aboriginal interests protected by the relationship, they hold attendant fiduciary obligations." {1294} [Emphasis added.]

Further, P. Joffe and M.E. Turpel conclude:

"Just because the fiduciary nature of the Crown's obligations historically arise from the common law relating to aboriginal title, and this common law is federal in nature, does not mean that provincial Crowns do not also have fiduciary obligations towards Aboriginal peoples {1295} ... Provincial governments, like any other legal person, can be in the position of a fiduciary. Although the fiduciary obligations of the Crown in right of Canada and the Imperial Crown arose for historical reasons dating back at least to the time of the Royal Proclamation, this does not mean that the provincial Crowns in Canada do not incur fiduciary obligations. Provincial fiduciary obligations, however, may in some cases arise from different situations {1296} than that of the federal Crown and, therefore, may be of a somewhat different nature." {1297} [Emphasis added.]

It should also be noted that the Québec government placed itself in the position of a fiduciary when it agreed to the annexation of the 1912 territory to the province. This is clear from the statutory condition in the Quebec Boundaries Extension Act, 1912 that:

"[Québec] recognize the rights of the Indian inhabitants...and obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof".

In addition, Québec has incurred treaty obligations to the Crees and Inuit under the James Bay and Northern Quebec Agreement (1975) and to the Naskapis under the Northeastern Quebec Agreement (1978). {1298}

In Sparrow v. The Queen, the Supreme Court of Canada cites with approval the following view of Blair J.A. of the Ontario Court of Appeal that confirms that fiduciary duties arise from treaties with Aboriginal peoples, among other means:

"...recent judicial decisions...have emphasized the responsibility of Government to protect the rights of Indians arising from the special trust relationship created by history, treaties and legislation: see Guerin v. The Queen, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R. (4th) 321." {1299} [Emphasis added.]

Consequently, it can be said that the Québec government already has fiduciary obligations in regard to at least some of the Aboriginal peoples in Québec. These fiduciary duties are different from those of the federal Crown and do not replace those owed by the federal government to Aboriginal peoples. Furthermore, in view of the actions being taken by the PQ government towards accession of Québec to independence, it appears that the province is placing itself in the position of a fiduciary. This would require the government and the National Assembly to conduct itself according to the highest standards vis-a-vis all of the Aboriginal peoples in Québec.

As a result, the PQ government and National Assembly must respect the right of Aboriginal peoples to determine their own future and that of their territories. In the context of Québec secession, executive and legislative representatives in Québec must, in particular, act in a manner that fully recognizes and respects the right of Aboriginal peoples to self-determination, including the right to hold their own referendums and choose to remain with Canada (if they so desire).

These provincial fiduciary obligations do not mean that the government of Québec can unilaterally displace the federal government in a secessionist context. Nor can the provincial government assume federal fiduciary and constitutional obligations without the consent of the Aboriginal peoples concerned.

It is important to emphasize that the obligation of the government of Québec and Canada to respect the right to self-determination of Aboriginal peoples is not dependent on the existence of a fiduciary relationship or obligation. Human rights, including self-determination, serve to inform the content of fiduciary obligations owed to Aboriginal peoples in Canada. However, whether or not a fiduciary duty exists, human rights must be respected independently in accordance with Canadian and international law. In relation to government fiduciary duties and respect for human rights, D. McRae (University of Ottawa) provides:

"Although the national and international standards for the protection of human rights to which Canada has made both a political and legal commitment provide a basis for the content of the fiduciary obligation of Canada towards its aboriginal peoples, they do not exhaust that content. Other obligations may be imposed upon a fiduciary as well. Moreover, human rights standards may also provide a basis for assessing the conduct of government independently of the fiduciary obligation Canada has towards its aboriginal peoples." {1300} [Emphasis added.]

Based on the above, the PQ government has a fiduciary duty to proceed with the aspirations of Quebecers in a manner that does not infringe or deny the fundamental rights of the James Bay Crees and other Aboriginal peoples in Québec. In particular, this relates to our right to self-determination, including the right to choose to remain in Canada. The PQ government claims that it seeks an equal and beneficial "partnership" with Aboriginal peoples. A reasonable test of that commitment is whether the government chooses to act at the present time in a way that does not ignore or go against the will of the Aboriginal peoples concerned. In the case of the James Bay Crees, we will determine our own future and that of our traditional territory Eeyou Astchee.

Footnotes

{1239} See, for example, R. Mackie, "Quebec Inuit ask Ottawa to save them from PQ plan", Globe and Mail, December 9, 1994, at A1; R. S?guin, "Stop separatists, PM urged", Globe and Mail, December 14, 1994, at A6; P. Cantin, "Les autochtones r?clament l'intervention d'Ottawa pour contrer le projet p?quiste", La Presse, December 14, 1994, at B1.

{1240} D. Pharand, "Canada's Fiduciary Obligation to Indigenous Peoples in Quebec and the Recognition of Quebec as a State", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 79.

{1241} Canada-United States Free Trade Agreement, Can. T.S. 1989 No. 3, H.R. Doc. No. 216, 100th Cong., 2d Sess. 297 (1988).

{1242} North American Free Trade Agreement, signed December 1992 by United States, Canada and Mexico; entered into force January 1, 1994. Reprinted in NAFTA Text, Including Supplemental Agreements (Chicago: CCH, 1994).

{1243} D. Pharand, "Canada's Fiduciary Obligation to Indigenous Peoples in Quebec and Admission of Quebec to International Organizations" in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 89. In relation to accession by countries to the North American Free Trade Agreement (NAFTA), see NAFTA, s. 2204; and V. Loungnarath, Quelques r?flexions d'ordre juridique sur la clause d'accession de l'AL?NA, (1995) 40 McGill L.J. 1000. See also NAFTA, Annex II-Canada, II-C-1, where it is provided that "Canada reserves the right to adopt or maintain any measure denying investors or another Party and their investments, or service providers of another Party, any right or preferences provided to aboriginal peoples". [Emphasis added.]

{1244} Even if an independent Québec were to agree to assume the existing fiduciary obligations of the Canadian government, the nature and legal consequences of such an arrangement would be significantly different. This is especially the case, since the fiduciary responsibilities in a separate Québec would be exercised by the government of a unitary state. First, the interpretation of the fiduciary obligations of the government in a separate Québec state would be interpreted in the context of a new Québec Constitution and not the existing Constitution of Canada. Secondly, in an independent Québec, there would no longer be another level of government (federal) to act as a check and balance on the exercise of power by the Québec government. Presently, the distribution of federal-provincial powers and the fiduciary duties of the federal government serve to safeguard Aboriginal peoples' rights against the intrusive actions of provincial governments.

{1245} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 67-68.

{1246} Committee to Examine Matters Relating to the Accession of Québec to Sovereignty, Draft Report, note 8, 1662, supra, at 25.

{1247} Sparrow v. The Queen, [1990] 1 S.C.R. 1075 (S.C.C.).

{1248} Guerin v. The Queen, (1984) 13 D.L.R. (4th) 321 (S.C.C.).

{1249} Sparrow v. The Queen, [1990] 1 S.C.R. 1075 (S.C.C.), at 1108.

{1250} Id. at 1109.

{1251} See also P. Monahan, "La s?cession du Québec: consid?rations juridiques et politiques" in Choix [:] s?rie Québec-Canada, L'accession du Québec ? la souverainet?: aspects juridiques" (Montreal: Institute for Research on Public Policy, June 1995), vol. 1, no. 12, 4 at 22, n. 28, where the author states that the Crown, as fiduciary, cannot unilaterally terminate obligations of a fiduciary nature owed to Aboriginal peoples. Such action would be contrary to s. 35 of the Constitution Act, 1982.

{1252} The justification tests in Sparrow apply not only to aboriginal rights but also to treaty rights. In relation to treaty rights of Aboriginal peoples, see for example, R. v. Bombay, [1993] 1 C.N.L.R. 92; C?t? v. The Queen, [1993] R.J.Q. 1350; R. v. McIntyre, [1992] 1 C.N.L.R. 129; R. v. Joseph, [1990] 4 C.N.L.R. 59; and R. v. Agawa, (1989) 65 O.R. (2d) 505 (Ont. C.A.).

{1253} P. Monahan, Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation, note 114, 1662, supra, at 27. See also E.J. Arnett, "The law is on Canada's side, not the separatists'", Globe and Mail, January 3, 1995, at A17: "The federal Crown has an obligation to protect aboriginal people."

{1254} Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1.

{1255} See, for example, the following preambular paragraph in the Royal Proclamation: "And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds."

{1256} See B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261, at 271-272.

{1257} Id.

{1258} M. Bryant, Crown-Aboriginal Relationships in Canada: The Phantom of Fiduciary Law, (1993) 27 U.B.C. L. Rev. 19, at 34.

{1259} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 267.

{1260} Rupert's Land and North-Western Territory Order, R.S.C. 1985, App. II, No. 9, confirmed as part of the Constitution of Canada in Item 3 of the Schedule to the Constitution
Act, 1982.

{1261} That the terms and conditions attached to the Order are also constitutional in nature is evident from section 146 of the Constitution Act, 1867. S. 146 provides: "It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council,...on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North- Western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act: and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland." [Emphasis added.]

{1262} Address to Her Majesty the Queen from the Senate and House of Commons of the Dominion of Canada, Schedule (A), R.S.C. 1985, App. II, No. 9, 8 at 8-9.

{1263} Address, Schedule (B), R.S.C. 1985, App. II, No. 9, at 14.

{1264} Id. at 16.

{1265} It is worth noting here that the wording in this Address is much more explicit and indicative of a fiduciary duty than s. 35 of the Constitution Act, 1982, which the Supreme Court of Canada has found to include a fiduciary obligation in Sparrow.

{1266} The Parliament of Canada must be included in the term "Canadian Government" since Parliament is the body that made the Address in 1869 and spoke of "our duty".

{1267} Quebec Boundaries Extension Act, 1912, S.C. 1912, c. 45.

{1268} Id., s. 2(e). The same provision is found in the Ontario Boundaries Extension Act, S.C. 1912, c. 40, s. 2(c).

{1269} Note, for example, that the provision states that the trusteeship "shall remain". This indicates that the federal trusteeship existed prior to, and was not created by, the 1912 Act.

{1270} Section 2(e) of the Quebec Boundaries Extension Act, 1912 was repealed by the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976-77, c. 32, s. 7.

{1271} Guerin v. The Queen, (1984) 13 D.L.R. (4th) 321 (S.C.C.).

{1272} Id. at 341.

{1273} Id., at 344.

{1274} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 52.

{1275} The authors indicate here that this includes both the federal and provincial Crowns.

{1276} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 49.

{1277} Generally, see D. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), at 32, 696.

{1278} Apsassin v. Canada, [1993] 2 C.N.L.R. 20 (Fed. C.A.).

{1279} Id., at 44 per Stone J.A.

{1280} Id., at 66.

{1281} Kruger v. The Queen, [1985] 3 C.N.L.R. 15 (Fed. C.A.).

{1282} Id., at 61.

{1283} Section 1 of the draft Act. Although this draft law makes no reference to the 1995 Québec referendum, it has been made clear that the PQ government would not proceed with its process towards independence should it fail to obtain an affirmative vote in the upcoming referendum.

{1284} Frame v. Smith, [1987] 2 S.C.R. 99, 42 D.L.R. (4th) 81 (per Wilson J. dissenting).

{1285} Id. at 99. See also Sopinka J. in International Corona Resources Ltd. v. Lac Minerals Ltd., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14 (S.C.C.) at 62-63, where he comments on Wilson J.'s criteria in Frame as follows: "It is possible for a fiduciary relationship to be found although not all of these characteristics are present, nor will the presence of these ingredients invariably identify the existence of a fiduciary relationship."

{1286} See, for example, S.J. Anaya, R. Falk, & D. Pharand, "Conclusions on Canada's Fiduciary Obligations To Aboriginal Peoples in Quebec under International Law", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 95: "As a matter of international law, the government of Canada has a duty to protect the rights of Aboriginal peoples subject to its jurisdiction. Although international law uses various terminology to describe this duty, it is equated in this report with fiduciary obligations'."

{1287} S.J. Anaya, "Canada's Fiduciary Obligation Toward Indigenous Peoples in Quebec under International Law in General", in Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 216, supra, vol. 1, at 40.

{1288} The analysis under this heading is taken largely from P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 278 et seq.

{1289} R. Dupuis & K. McNeil, Canada's Fiduciary Obligation to Aboriginal Peoples in the Context of Accession to Sovereignty by Quebec, note 602, supra, vol. 2, at 40.

{1290} See Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 (S.C.C.), at 596-599; Frame v. Smith, [1987] 2 S.C.R. 99, 42 D.L.R. (4th) 81 at 97-98 (per Wilson J. dissenting and additional authorities she cites); Laskin v. Bache & Co. Inc., (1972), 23 D.L.R. (3d) 385 at 392 (Ont. C.A.); Goldex Mines Ltd. v. Revill et al., (1974), 54 D.L.R. (3d) 672 at 680, 7 O.R. 216 (Ont. C.A.) at 224.

{1291} Guerin v. The Queen, (1984) 13 D.L.R. (4th) 321 (S.C.C.) at 341.

{1292} Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 (S.C.C.).

{1293} Id., at 108-109.

{1294} B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261 at 274.

{1295} For a contrary view, see R. Boivin, ? qui appartient l'obligation de fiduciaire ? l'?gard des autochtones?, (1994) 35 Les Cahiers de Droit 3 at 13. The validity of Boivin's analysis is directly challenged in P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 278, n. 1557.

{1296} For example, provincial fiduciary obligations can arise from specific treaty obligations of the provincial Crown or from statutory enactments, such as the Quebec Boundaries Extension Act, 1912.

{1297} P. Joffe & M.E. Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives, note 190, 1662, supra, vol. 1, at 279-280.

{1298} Quebec Boundaries Extension Act, S.C. 1912, c. 45, s. 2(c). It is submitted that Québec placed itself in a fiduciary role according to s. 2(c), whether or not the federal delegation of power to Québec to obtain a surrender is constitutional.

{1299} R. v. Agawa, (1988) 28 O.A.C. 201 (Ont. C.A.) per Blair J.A. at 215-216, cited in Sparrow v. The Queen, [1990] 1 S.C.R. 1075 (S.C.C.) at 1107-1108.

{1300} D. McRae, Report on the Complaints of the Innu of Labrador to the Canadian Human Rights Commission, Ottawa, August 18, 1993, at 5.