Loyalty and Distinctiveness: A New Approach to the Crown's Fiduciary Duty Toward Aboriginal Peoples
Alberta Law Review, Vol. 40, p. 841, 2002-2003
26 Pages Posted: 16 Feb 2009
Abstract
As a tool to protect the distinctive elements of Aboriginal cultures, the Supreme Court of Canada's current approach to s. 35 of the Canadian Charter of Rights and Freedoms has significant limitations. The judgments in Mitchell v. M.N.R. reflect these limitations, but also hint at the possibility of a fuller, more coherent protection of Aboriginal rights. This paper argues that the Court should recognise that the acknowledged fiduciary relationship between the Crown and Aboriginal peoples requires the Crown to negotiate in good faith the mechanisms necessary for the preservation and flourishing of Aboriginal cultures. The recognition of such a duty to negotiate flows from the historic relationship between the Crown and Aboriginal peoples, and is consistent with the constitutional principles already elucidated in relation to Aboriginal rights in Canada.
Keywords: indigenous rights, aboriginal rights, fiduciary duty
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