Paper: The Fiduciary Obligation in Delgamuukw

By Stuart Rush, Q.C.
March 16, 1998

The full paper is available via pdf download at the bottom of this page.

The decision in Delgamuukw1 has greatly expanded the fiduciary obligations of the governments. It has established the Federal Government as the protector of aboriginal title on off-reserve land. It has imposed a duty to accommodate aboriginal title if it is to be infringed upon. It has imposed a duty to consult with respect to infringement of aboriginal title by enactments and measures taken by the governments. It has imposed a duty to negotiate treaty settlements in good faith with Aboriginal Nations.

The Court concluded that in order to give effect to the title which the Aboriginal Nations possessed in their ancestral lands and to spur on settlements, mandatory obligations had to be declared. There had to be a Federal obligation to safeguard off-reserve aboriginal land. The Court saw the need to make it clear to the governments that they had to negotiate with aboriginal people on a fair basis, on a Nation to Nation footing, and to treat Aboriginal Nations as equal partners in the treaty settlement process.

The Supreme Court of Canada sought to remedy the legal inequities by broadly pronouncing principles of Aboriginal title. It articulated a test to prove Aboriginal title. It set out a broad reconciliation process which it mandated (through treaty negotiations) under s. 35(l) to accommodate governmental interference. It directed the Crowns to negotiate treaty settlements and to consult about infringements of Aboriginal title in good faith. The rationale for this is that "we are all here to stay" and accordingly a co-existence must be achieved.
Having set out the principles defining Aboriginal title and its content, the Court expanded
the fiduciary obligations upon the federal and provincial governments in order to govern the
process by which settlements can occur and to give a means of enforcing the principles
which it declared.

[1] References are to the unreported decision or Delgamuukw v. 77te Queen, December 11, 1997, No. 23799 (S.C.C.)'