Crown-aboriginal fiduciary relationships : false optimism or realistic expectations?

• Main Author: Walker, Patrick
• Language: English
• Published: 2008
• Online Access: http://hdl.handle.net/2429/3207

As a result of the Supreme Court of Canada's decision in R. v. Sparrow, the government's fiduciary obligations towards aboriginal peoples was extended into the area of constitutionally entrenched aboriginal and treaty rights. Native people expressed their expectations that this doctrinal development would be an instrument for native empowerment. To date, the Courts have delivered little under the fiduciary rubric. After examining the history and jurisprudence associated with the fiduciary concept, a critical approach is adopted in order to determine what phenomena are acting to limit the doctrine's potential. Three areas are explored in an attempt to determine why the legal system may operate to prevent the realisation of substantive gains. These include: inherent textual limitations, law and politics, and 'dominant' and 'judicial' ideologies. Sparrow represents the best impusles of reform from the Supreme Court of Canada. Yet, because the judgment does not openly question a hierarchical position of authority for the Crown, it may reproduce dependency in a new form. The study of native people's experience with fiduciary litigation provides instruction for all disadvantaged groups in relation to the potential of using law to achieve social change