Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada

David Mardiros is an anthropological consultant in Kars, Ontario.

Parallel Paths is a detailed examination of one aspect of the complex
legal relationship between Native people and the Canadian government. It
focuses on the duty that the Crown has to act in the best interests of
aboriginal people when the Crown’s actions have an impact on Native
rights. In law, the duty that arises from this relationship—broadly
similar to a trust relationship—is known as a fiduciary duty. This
book documents the historical and political context in which the
relationship and the duty arose and provides an analysis of the
consequences of this relationship for the Crown and Native people.

In the Guerin case in 1984, the Supreme Court of Canada illustrated
some of the pitfalls for the federal government if it fails to discharge
its fiduciary duty. The Crown was found liable to compensate
Vancouver’s Musqueum Indian Band for negotiating what was found to be
a grossly undervalued lease of lands belonging to the
band—compensation that amounted to several million dollars. As Rotman
points out, however, the consequences of this duty are not limited only
to the resolution of outstanding Native land claims but also extend to,
among other things, changes to the Indian Act and the negotiation of
Native self-government. The book thus shows that the fiduciary duty owed
by the Crown to Native people has important implications for the future
of the relationship between Native and non-Native Canadians.
Furthermore, the nature and full extent of the fiduciary relationship
have remained largely undefined and unexplored since, and despite, the
Guerin decision.

This is a complex work written primarily for those with a specialized
interest in Native law. However, particular sections will appeal to a
gen-eral audience that is interested in the cultural and social context
within which the law has evolved. The book’s extensive appendices
contain a number of important documents that illustrate the Crown’s
views of Native people from the 15th through the 20th centuries.