Indian Reserves and Aboriginal Lands in Canada: A Homeland

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

At a time when Canada’s future is under active discussion and the
government is unable to make up its mind whether to include the issue of
Indian rights in any constitutional arrangement that might ensue, it is
useful to be reminded that there is a growing literature devoted to such
issues.

Bartlett examines Indian reserves and aboriginal lands in Canada from
the point of view of their historical development; their ownership; the
government and management of the lands and their resources; and finally,
the Crown’s fiduciary position. It is probably this last section of
the analysis that is of the greatest significance. The author comments
that “a case by case approach to the accountability of the Crown is to
be expected, since there is as yet no generally accepted ‘definition
of the concept of a fiduciary apart from the contexts in which it has
been held to arise’.” He further contends that this fiduciary
obligation “should properly be owed to all those aboriginal people
over whose property or interests the Crown has exercised extraordinary
discretion or power,” including the Métis and Métis Settlements in
Alberta, as well as Indian bands in British Columbia. In fact, “the
provinces should properly assume a corresponding accountability,” and
since the provinces represent the Crown within areas of their own
competence, this should be obvious. Presumably, such a fiduciary
accountability would also extend to the Inuit.

It has often been pointed out that in the relations between the Crown
and the aboriginal peoples, confusion as to the meaning of terms,
particularly those of a technical or legal nature, has frequently been
the cause of today’s disputes. This is especially true when one looks
at the period when agreements were made and seeks to interpret them in
the light of today’s concepts when discussing them. Here, the author
suggests that “the oral terms, which the band understood would be
embodied in the lease [or other instrument], would be part of the
backdrop of circumstances which would determine whether the fiduciary
had been unconscionable.” The only problems are that we have no
guarantee that the politicians representing the Crown are sufficiently
aware of the significance of such an approach, or that the Indians would
accept the whites’ court as the proper body to interpret what the
Indians understood at the time the instrument was prepared.

Books of this kind fulfill a major educational function. Whether they
are relevant to the political atmosphere that controls present and
future discussions is debatable.