When Do Fiduciary Obligations to Aboriginal People Arise
![handle is hein.journals/sasklr59 and id is 103 raw text is: Saskatchewan
Law Review
When Do Fiduciary Obligations To
Aboriginal People Arise?
Peter W. Hutchins and David Schulze with Carol Hilling*
I. Presum ptions and Burdens ................................................................. 98
II. The Case Law: Remembering and Then Forgetting History .................. 104
A. Before Guerin: The Political Trust ....................................................... 104
B. Guerin Recognizes The Fiduciary Duty of the Crown ....................... 105
C . In G uerin's W ake ................................................................................. 105
D . Sp arrow ................................................................................................ 10 6
E. After Sparrow: The Decline and Fall? ................................................. 107
III. First Fiduciary Principles ........................................................................ 110
A. International Law Parallels ................................................................ 110
B. The Fiduciary Relationship Does Not Depend On Inequality .......... 112
C. The Content of a Fiduciary Duty ....................................................... 114
IV. Practical Im plications ............................................................................. 116
A. Who Are the Actors On Whom the Burden Lies? ............................. 116
Peter W. Hutchins is a member of the Quebec Bar and a partner in the firms of Hutchins,
Soroka & Dionne, Montreal, Quebec, and Hutchins, Soroka, Grant & Paterson, Vancouver and
Hazelton, British Columbia; David Schulze is a member of the Quebec Bar and an associate in
the firm of Hutchins, Soroka & Dionne, Montreal, Quebec; Carol Hilling is a member of the
Quebec Bar and counsel to the firm of Hutchins, Soroka & Dionne.
This paper is the product of the work and reflection over a number of years of members
of the firm Hutchins, Soroka & Dionne. We would like to acknowledge and thank Diane
Soroka and Anjali Choksi for their review of an earlier draft and their comments and suggestions
and David Kalmakoff for his editorial assistance. In the spirit of this paper, we assume entire
responsibility for any errors or omissions. Peter Hutchins discloses, as well, that he has acted
as counsel for the First Nation's parties in a number of the legal proceedings referred to in this
paper.
As this article was going to press, the Supreme Court of Canada rendered its decision in
Blueberry River Indian Band v. Canada (Department of Indian Affairs an Northern Development),
unreported judgement, 14 December 1995, reversing Apsassin v. The Queen,
[1993]2C.N.L.R.20(F.C.A.) This judgment involves a number of significant issues relating to
our subject. Although time has not permitted a full analysis of this decision, at first glance the
reasons appear to confirm our treatment of the subject for the most part. We have introduced
into our text several references to the reasons of Justice Gonthier and Justice McLachlin to
provide a preliminary view of this most recent pronouncement by the Supreme Court of
Canada on these matters. See infra, text accompanying notes 34-37, 55, 88, 99-101, 108-109.](ViewImageLocal?handle=hein.journals/sasklr59&div=8&collection=journals&method=preview&ext=.png&size=3)
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When Do Fiduciary Obligations to Aboriginal People Arise
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