Prairie First Nations and provinces : is there a fiduciary relationship that gives rise to fiduciary obligations?

• Main Author: Rasmussen, Merrilee Denise
• Other Authors: Greschner, Donna, Bell, Catherine
• Format: Thesis
• Language: English
• Published: University of Saskatchewan 2001
• Subjects: First Nations; Fiduciary Obligations; law; Indian
• Online Access: http://hdl.handle.net/10388/etd-11202006-143532

This thesis examines the relationship between the provincial Crown and Aboriginal peoples in the particular context of the prairie provinces to determine whether or not it can be described as fiduciary and, if so, what obligations arise from it. While very few judicial decisions have dealt with this specific issue, an analysis of the existing jurisprudence suggests that there are two types of fiduciary relationships in which Aboriginal peoples are involved. The first type is a manifestation of the more traditional fiduciary concept. It is similar to classic fiduciary situations, such as doctor/patient, director/corporation, partner/partner, in which a fiduciary having control over the property or person of another must act in that other person's best interests. In the Aboriginal context, the power of the federal Crown over surrendered Indian reserve lands and over Indian moneys is limited by its fiduciary obligations of this traditional type. The second type is unique to the situation of Aboriginal peoples. It arises out of the constitutional protection provided to Aboriginal and treaty rights and gives rise to obligations that limit the jurisdiction of federal and provincial governments over them. This thesis concludes that the provincial Crown in the prairie provinces possesses no fiduciary obligations arising directly out of its relationship with First Nations peoples, in the classic fiduciary sense, because history and the Constitution have established that that relationship is with the federal Crown. Provincial fiduciary obligations are limited to those arising from the constitutional protection of Aboriginal and treaty rights and thus arise only in respect of constitutionally valid provincial laws that infringe on such rights. In Saskatchewan, the only infringing provincial laws that are possible are those made under the authority provided by paragraph 12 of the Natural Resources Transfer Agreement, 1930, which authorizes Saskatchewan to make limited laws relating to hunting, fishing and trapping applicable to Indians.