The Honour of the Crown: Making Sense of Crown Liability Doctrine in Crown/Aboriginal Law in Canada

Abstract

Simply put, Crown liability doctrine in Crown/Aboriginal Law in Canada is a mess. Demonstrably, there are fiduciary-based duties, fiduciary-based principles, an over-arching honour of the Crown principle, Crown honour-based duties, and a constitutional Crown/Aboriginal “reconciliation” imperative. How the various pieces are meant to fit together is atypically unclear. In this project, Ronald Dworkin’s rights thesis is invoked as a conceptual tool in an attempt to help bring some order to the disarray.

It is argued that the Supreme Court of Canada made a fundamental (Dworkinian) mistake in the manner in which they adopted fiduciary concepts into the core of Crown/Aboriginal Law; that this mistake has led to a dysfunctional doctrine; and that the Supreme Court has implicitly acknowledged their error and are now in the process of incrementally mending their materially flawed doctrine. Crown liability doctrine in Crown/Aboriginal Law in Canada is now centrally organized around the principle that the honour of the Crown must always be upheld in applicable government dealings with Aboriginal peoples. Enforceable Crown honour-based “off-shoot” duties operate to regulate the mischief of Crown dishonour in constitutional contexts. The Supreme Court has now stated that a (non-conventional and fundamentally unresolved) Crown/Aboriginal fiduciary obligation is one such “off-shoot” duty.

This emergent “essential legal framework” is meant to protect and facilitate the over-arching project of reconciling the pre-existence of Aboriginal societies with the de facto sovereignty of the Crown, which reconciliation project, it is argued here, is to be fundamentally undertaken by the executive and legislative branches of government working collaboratively with Aboriginal peoples. The judicial branch of government is then largely limited to the more modest task of regulating the mischief of constitutional Crown dishonour.

This project ultimately purports to theorize this relatively new Crown honour-based framework, and to conceptualize what residual role there is for fiduciary accountability to play in applicable Crown/Aboriginal contexts moving forward. It is concluded there is likely only a narrow jurisdiction remaining for fiduciary accountability in Crown/Aboriginal contexts, which jurisdiction appears destined to take the form of conventional fiduciary doctrine which, as will be demonstrated, has itself been fundamentally reconfigured in recent years.