Crown's Fiduciary Duty and Indian Title: Guerin v. the Queen, The

The Crown’s Fiduciary Duty and Indian Title: Guerin v. The

Queen

John Hurley*

The Supreme Court of Canada’s recently
rendered judgment, Guerin v. The Queen,
establishes that the Crown has a fiduciary
duty to deal with surrendered Indian lands
for the benefit of the surrendering Indians
that is founded both on the concept of In-
dian title itself and the statutory frame-
work governing the title. Despite a consensus
as to the existence of this fiduciary duty,
the decision was not a unanimous one as
regards its bases. The author examines the
source, scope, nature and effects of this fi-
duciary duty, relates it to the American
guardianship doctrine and speculate as to
its future applications in Canada.

La Cour supreme du Canada a r~cemment
dcid6 dans l’arr~t Guerin c. La Reine que,
A titre de fiduciaire des terres c~d~es par les
Indiens, la Couronne a le devoir d’adminis-
trer ces terres au profit de la bande c~dante.
La Cour fonde sa decision sur Ia nature meme
du titre indien ainsi que sur la structure sta-
tutaire le r~gissant. En d~pit du consensus au
sein de la Cour quant A ‘existence de robli-
gation de fiduciaire, les motifs diflrent quant
i son fondement. L’auteur 6tudie la source,
l’6tendue, la nature et les effets de l’obligation
de fiduciaire, fait le lien entre celle-ci et la
doctrine am~ricaine de <(guardianship >> et
s’interroge quant fi son application future au
Canada.

*Of the Montreal Bar. The author is indebted to Darlene A. Pearson for her comments on
the draft of this article and to Michelle Asselin for her diligence in typing it. Any errors or
omissions are the responsibility of the author.

McGill Law Journal 1985
Revue de droit de McGill

McGILL LAW JOURNAL

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Synopsis

Introduction
A. Facts
B. Federal Court Trial Division Judgment
C. Federal Court of Appeal Judgment
D. Supreme Court of Canada Judgment

II. Fiduciary Duty
A. Existence
B. Source

1. General
2.

Indian Title

a. Source
b. Recognition
c. Continuity
d. Nature

i. Personal and Usufructuary
ii. Beneficial Interest
iii. Sui Generis Right

3. Surrender Requirement

a. General
b. Origin
c. Purpose
d. Scope
e. Definition of “Surrender”

i. Release
ii. Retention

4. Discretion
5. Guardianship

C. Scope
D. Nature

1. Trust v. Fiduciary Duty

1985]

COMMENT

“Political” v. “True” Trust

E. Effect
III. Conclusion

A. Conflict of Interest
B. “Good Faith Effort” Test

Introduction

In its recent judgment in Guerin v. The Queen,I the Supreme Court of
Canada established that the Crown is under a fiduciary duty to deal with
surrendered Indian lands for the benefit of the surrendering Indians. This
is an equitable duty, enforceable in the courts. It gives rise to damages,
measured by actual loss sustained at the time of trial, in the event of breach.
It proceeds both from the nature of Indian land title itself, and from the
statutory framework governing such title.

In establishing these propositions, Guerin marks a significant advance
over earlier Canadian authorities. When they have recognized the Crown’s
fiduciary duty towards Indians, these authorities have generally charac-
terized it as a political or moral, and not as a legal one.2 The case is also
important for the additional light it sheds on the concept of Indian or
aboriginal title.

This article examines the source, scope, nature and effects of the Crown’s
fiduciary duty towards Indians as discussed in Guerin. It analyses in some
depth the concept of Indian title upon which the Supreme Court founds,

‘(1984), [1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 [hereinafter cited to S.C.R.].
2See, e.g., St Catharines Milling & Lumber Co. v. The Queen (1887), 13 S.C.R. 577 at 649,
aff’d (sub nom. St Catherine’s Milling and Lumber Co. v. The Queen) (1888), 14 A.C. 46, 60
L.T.R. 197 (P.C.) [hereinafter cited to S.C.R. as St Catharines] per Taschereau J.:

The Indians must in the future… be treated with the same consideration for their
just claims and demands that they have received in the past, but, as in the past, it
will not be because of any legal obligation to do so, but as a sacred political obligation,
in the execution of which the State must be free from judicial control. [emphasis
added]

See also, A.G. Ontario v. A.G. Canada (Re Indian Claims) (1895), 25 S.C.R. 434, aff’d (1896),
[ 1897] A.C. 199 (H.L.) [hereinafter cited to S.C.R. as Re Indian Claims]; Cayuga Indian Case
(1926), 6 R. Int’l Arb. Awards 173, 177, 187; The Queen v. Guerin (1982), [1983] 2 EC. 656,
143 D.L.R. (3d) 416 at 467-71, [1983] 2 W.W.R. 686, 45 N.R. 181, 13 E.T.R. 245, [1983] 1
C.N.L.R. 20 (EC.A.) [hereinafter cited to EC.] per Le Dain J.; and L.C. Green, “Trusteeship
and Canada’s Indians” (1976) 3 Dalhousie L.J. 104.

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in part, the Crown’s fiduciary duty. It attempts to relate the Court’s treat-
ment of this duty to the guardianship doctrine developed by the United
States Supreme Court, and it speculates as to future applications of the
doctrine of Crown fiduciary duty in Canada.

A. Facts

In October 1957, the Musqueam Indian Band surrendered, pursuant
to sections 37 to 41 of the Indian Act,3 162 acres of valuable reserve land,
located within the City of Vancouver, to the federal Crown for lease to a
golf club on certain oral terms and conditions. These oral terms had been
discussed with federal officials at band meetings, but were not specified in
the surrender document. By this document, the band surrendered the land
to the Crown on the following terms:

TO HAVE AND TO HOLD the same unto Her said Majesty the Queen,
her Heirs and Successors forever in trust to lease the same to such person or
persons, and upon such terms as the Government of Canada may deem most
conducive to our Welfare and that of our people.

AND upon the further condition that all monies received from the leasing

thereof, shall be credited to our revenue trust account at Ottawa.

AND WE, the said Chief and Councillors of the said Musqueam Band of
Indians do on behalf of our people and for ourselves, hereby ratify and confirm,
and promise to ratify and confirm, whatever the said Government may do, or
cause to be lawfully done, in connection with the leasing thereof.4

The Crown subsequently executed a lease of the surrendered land on
terms much less favourable than the oral terms approved by the band. The
lease provided for renewal periods of fifteen rather than ten years and stip-
ulated a maximum rent increase of fifteen per cent for the second fifteen
year period. It also gave the golf club the right to remove buildings and
improvements at any time until six months after the termination of the
lease.

The Crown did not seek the band’s consent to the changed terms before
executing the lease, nor did it provide the band with a copy of the lease
until 1970, twelve years after its execution. In December 1975, the band
sued the Crown for damages on the basis of breach of trust.

3R.S.C. 1952, c. 149; now R.S.C. 1970, c. 1-6.
4The terms of the surrender are given in Guerin v. The Queen, supra, note I at 346.

1985]

CHRONIQUE DE JURISPRUDENCE

B. Federal Court Trial Division Judgment

Collier J. found the Crown in breach of trust.5 In his view, the surrender
constituted the Crown the trustee for the lease of the surrendered lands on
the oral terms approved by the band. The Crown committed a breach of
trust by executing the lease on different and less favourable terms, without
the band’s consent. Collier J. fixed the band’s damages at $10,000,000. This
sum represented a global evaluation of the band’s actual loss at the time of
trial, based on the assumption that the band and the golf club would not
themselves have been able to agree upon mutually acceptable terms for a
golf lease, and that the band would therefore have been free to put the land
to the most advantageous use during the term of the unauthorized golf lease.

C. Federal Court of Appeal Judgment

Speaking for the Federal Court of Appeal, Le Dain J. allowed the Crown’s
appeal, set aside the Trial Division judgment, and dismissed the band’s
action.6 He viewed the action as based primarily on a statutory trust alleged
to have been created by section 18(1) of the Indian Act. This provision
reads:

Subject to this Act, reserves are held by Her Majesty for the use and benefit
of the respective bands for which they were set apart; and subject to this Act
and to the terms of any treaty or surrender, the Governor in Council may
determine whether any purpose for which lands in a reserve are used or are
to be used is for the use and benefit of the band.7

Le Dain J. held that this provision vested the Crown with a discretion
incompatible with an equitable obligation enforceable by the Courts. It gave
rise to a “political” rather than a “true” trust.

Le Dain J. also rejected the argument that the surrender document
created a true trust. The words “in trust” used in that document merely
conferred upon the Crown the authority to deal with the surrendered land
for the band’s benefit; they did not impose upon the Crown any enforceable
equitable obligation to deal with the land in a certain manner. Even if a
true trust had been created, it would have been defined by the broad dis-
cretionary terms of the surrender document and not by the oral terms con-
templated by the band. The Crown was therefore held not to be liable for
its failure to comply with these oral terms.

5Guerin v. The Queen (1981), [1982] 2 EC. 385, 10 E.T.R. 61, [1982] 2 C.N.L.R. 83 (T.D.).
6The Queen v. Guerin, supra, note 2.
7Supra, note 3.

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D. Supreme Court of Canada Judgment

Eight Justices participated in the judgment of the Supreme Court of
Canada.8 The judgment comprises three opinions, none of which com-
manded majority support. Dickson J. (as he then was) wrote reasons to
which Beetz, Chouinard and Lamer JJ. subscribed. Wilson J. wrote reasons
with which Ritchie and McIntyre JJ. concurred. Estey J. wrote his own
opinion. This diversity of opinions makes the judgment’s ratio decidendi
less discernible than it might be. Nevertheless, a majority of the panel clearly
viewed the Crown to be under a general fiduciary duty with regard to Indian
lands.

II. Fiduciary Duty

A. Existence

Seven of the eight Supreme Court Justices held that the Crown is subject
to a general fiduciary duty respecting Indian lands. According to Dickson
J.,

the nature of Indian title and the framework of the statutory scheme established
for disposing of Indian land places upon the Crown an equitable obligation,
enforceable by the courts, to deal with the land for the benefit of the Indians.
This obligation does not amount to a trust in the private law sense. It is rather
a fiduciary duty. If, however, the Crown breaches this fiduciary duty it will be
liable to the Indians in the same way and to the same extent as if such a trust
were in effect.9
Wilson J. agrees that the Crown has a general fiduciary duty regarding
Indian lands. 10 She adds, however, that in this case the surrender imposed
an express trust upon the Crown to deal with the surrendered land for the
benefit of the surrendering Indians.II

Only Estey J. declines to uphold the existence of the Crown’s fiduciary
duty. While agreeing in the result, he disposes of the case on the basis of
agency rather than trust or fiduciary duty. In Estey J.’s view, the Indian Act
creates a statutory agency bbtween the Crown and Indians. That this agency
is statutory rather than contractual in origin does not change its character. 12
Dickson J. disagrees:

But just as the Crown is not a trustee for the Indians, neither is it their agent;
not only does the Crown’s authority to act on the Band’s behalf lack a basis

gForrner Chief Justice Laskin did not take part in the judgment.
9Guerin v. The Queen, supra, note I at 376.
0Ibid. at 348-9.
“Ibid. at 355.
12Ibid at 391.

1985]

COMMENT

in contract, but the Band is not a party to the ultimate sale or lease, as it would
be if it were the Crown’s principal.’ 3

The nature of the relationship between the Crown and Indians respect-
ing surrendered lands may depend more upon their relative independence
than upon the statutory or contractual basis of their relationship or the
identity of the principal parties to the lease. A fiduciary relationship is
characterized by the discretion and independence with which the fiduciary
acts for the beneficiary.14 An agency relationship, on the other hand, is
characterized by the relatively greater control and direction asserted by the
principal over the agent. The degree of discretion and independence vested
in the Crown with regard to surrendered Indian lands would appear to cast
it more in the role of fiduciary than agent.15

In any event, Estey J. does not categorically exclude the possibility of
a fiduciary relationship between the Crown and the Indians. He relies upon
the law of agency rather than that of trusts or fiduciary duty as much for
policy as for legal reasons:

For these reasons, I would, with great respect to all who hold a contrary view,
hesitate to resort to the more technical and far-reaching doctrines of the law
of trusts and the concomitant law attaching to the fiduciary. The result is the
same but, in my respectful view, the future application of the Act and the
common law to native rights is much simpler under the doctrines of the law
of agency.’ 6

With respect, it is not clear that the legal results of agency and fiduciary
relationships are the same. The fiduciary may, for example, be under a more
stringent obligation to act positively for the welfare of his beneficiary than
may be the agent towards his principal. Further, the causes and extent of
liability may differ as between agency and fiduciary relationships. In light
of these potential differences, the question arises whether administrative
simplicity provides sufficient grounds for characterizing the relationship
between the Crown and the Indians in respect of surrendered lands as one
of agency rather than as one of trust or fiduciary duty.

’31bid. at 387.
‘4E.J. Weinrib, “The Fiduciary Obligation” (1975) 25 U.T.L.J. 1 at 7, cited by Dickson J. in

Guerin v. The Queen, ibid. at 384.

‘5See infra, note 118 and accompanying text.
‘6Supra, note 1 at 394-5.

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B. Source

1. General

Dickson and Wilson JJ. appear to agree that the Crown’s fiduciary duty
regarding Indian lands rests upon two bases. The first is the nature of Indian
or aboriginal title. The second is the statutory framework established to
protect and dispose of such title,

Dickson J.’s analysis of the source of the Crown’s fiduciary duty is
somewhat ambiguous. He begins by relating this duty to the two sources
mentioned above:

In my view, the nature of Indian title and the framework of the statutory
scheme established for disposing of Indian land places upon the Crown an
equitable obligation, enforceable by the courts, to deal with the land for the
benefit of the Indians.17

In the next paragraph, Indian title is again cited as one source of the
Crown’s fiduciary duty. As for the second source, however, Dickson J. shifts
emphasis from the general statutory framework regulating Indian title to
the specific requirement that such title be surrendered to the Crown prior
to alienation to third parties:

The fiduciary relationship between the Crown and the Indians has its roots in
the concept of aboriginal, native or Indian title. The fact that Indian Bands
have a certain interest in lands does not, however, in itself give rise to a fiduciary
relationship between the Indians and the Crown. The conclusion that the Crown
is a fiduciary depends upon the further proposition that the Indian interest is
inalienable except upon surrender to the Crown. 18

In the following paragraph, Dickson J. identifies the surrender require-

ment as a distinct source of fiduciary obligation for the Crown:

An Indian Band is prohibited from directly transferring its interest to a third
party. Any sale or lease of land can only be carried out after a surrender has
taken place, with the Crown then acting on the Band’s behalf. The Crown first
took this responsibility upon itself in the Royal Proclamation of 1763. It is
still recognized in the surrender provisions of the Indian Act. The surrender
requirement, and the responsibility it entails, are the source of a distinct fi-
duciary obligation owed by the Crown to the Indians. 19

Matters are further complicated when Dickson J. later advances, as
another source of fiduciary obligation, the discretion conferred by section

171bid. at 376.
1sIbid.
191bid.

1985]

CHRONIQUE DE JURISPRUDENCE

18(1) of the Indian Act upon the Crown respecting the management and
disposition of reserve lands:

Through the confirmation in the Indian Act of the historic responsibility which
the Crown has undertaken, to act on behalf of the Indians so as to protect
their interest in transactions with third parties, Parliament has conferred upon
the Crown a discretion to decide for itself where the Indians’ best interests
really lie. This is the effect of s. 18(1) of the Act.

This discretion on the part of the Crown, far from ousting, as the Crown
contends, the jurisdiction of the courts to regulate the relationship between the
Crown and the Indians, has the effect of transforming the Crown’s obligation
into a fiduciary one.20

In the result, while Dickson J. is clear upon Indian title as one source
of the Crown’s fiduciary duty, he designates the other variously as the sta-
tutory scheme governing Indian title, the surrender requirement charac-
terizing such title, and the Crown’s discretionary power to manage and
dispose of such title. This ambiguity may be more apparent than real, since
Dickson J. relates the Crown’s discretion to the surrender requirement, and
the latter both to Indian title itself and to the statutory framework governing
such title. Of these elements, two, Indian title and the surrender requirement,
seem most important.

According to Wilson J., the Crown’s fiduciary duty regarding reserve
lands derives from Indian title itself. It is given statutory recognition by
section 18 of the Indian Act. Wilson J. writes:

While I am in agreement that s. 18 does not per se create a fiduciary obligation
in the Crown with respect to Indian reserves, I believe that it recognizes the
existence of such an obligation. The obligation has its roots in the aboriginal
title of Canada’s Indians as discussed in Calder v. Attorney General of British
Columbia… .21

An examination of the sources of the Crown’s fiduciary duty towards

Indians identified in Guerin follows.

Indian Title

In relating the Crown’s fiduciary duty to Indian title, the Guerin case
sheds important incidental light upon the latter. Since Indian title is the
most basic and complex of the sources advanced in Guerin of the Crown’s
fiduciary duty, it will be considered in some detail. Attention is focussed
here on the source, recognition, continuity and nature of Indian title.

20 bid. at 383-4.
21Ibid. at 348-9.

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a. Source

Dickson J. relies upon Calder v. A.G. British Columbia22 as authority
for the proposition that Indian title derives from two independent sources.
The first of these is the Indians’ historical occupation and use of their lands.
The second is the Royal Proclamation of 7 October 1763.

In Calder v. Attorney General British Columbia … this Court recognized abori-
ginal title as a legal right derived from the Indians’ historic occupation and
possession of their tribal lands. … Judson and Hall JJ. were in agreement,
however, that aboriginal title existed in Canada (at least where it had not been
extinguished by appropriate legislative action) independently of the Royal Pro-
clamation. Judson J. stated expressly that the Proclamation was not the “ex-
clusive” source of Indian title … . Hall J. said … that “aboriginal Indian title
does not depend on treaty, executive order or legislative enactment”. 23
This position, Dickson J. observes, differed from that taken by Lord
Watson in the locus classicus of Canadian aboriginal title, St Catherine’s
Milling and Lumber Co. v. The Queen.24

In recognizing that the Proclamation is not the sole source of Indian title the
Calder decision went beyond the judgment of the Privy Council in St Cath-
erine’s Milling and Lumber Co. v. The Queen … . In that case Lord Watson
acknowledged the existence of aboriginal title but said it had its origin in the
Royal Proclamation.25
The notion that aboriginal title flows from the Indians’ own historical
occupation of their lands is, Dickson J. argues, consistent with the views
of Marshall C.J. in two early, and influential, United States Supreme Court
cases, Johnson v. Mclntosh26 and Worcester v. Georgia.27 He states that:

In Johnson v. McIntosh Marshall C.J., although he acknowledged the Procla-
mation of 1763 as one basis for recognition of Indian title, was nonetheless of
opinion that the rights of Indians in the lands they traditionally occupied prior
to European colonization both predated and survived the claims to sovereignty
made by various European nations in the territories of the North American
continent. The principle of discovery which justified these claims gave the
ultimate title in the land in a particular area to the nation which had discovered
and claimed it. In that respect at least the Indians’ rights in the land were
obviously diminished; but their rights of occupancy and possession remained
unaffected. 28

22(1973), [1973] S.C.R. 313, 34 D.L.R. (3d) 145, [1973] 4 W.W.R. 1 [hereinafter cited to

S.C.R. as Calder].

23Supra, note 1 at 376-7.
24(1888), 14 A.C. 46, 60 L.T.R. 197 (P.C.), aff’g St Catharines, supra, .note 2 [hereinafter

cited to A.C. as St Catherine’s Milling].

25Supra, note 1 at 377.
2621 U.S. 240, 8 Wheat. 543 (1823).
2731 U.S. 405, 6 Pet. 515 (1832).
28Supra, note I at 377-8.

1985]

COMMENT

Dickson J. reiterates the independent basis of aboriginal title when,
echoing Hall J. in Calder,29 he states that the Indians’ “interest in their lands
is a preexisting legal right not created by Royal Proclamation, by s. 18(1)
of the Indian Act, or by any other executive order or legislative provision”.30
Wilson J. agrees that Indian title may have an independent legal basis.
She states that “Indian title has an existence apart altogether from s. 18(1)
of the Indian Act”. 3 1 Unlike Dickson J., however, Wilson J. does not identify
what constitutes the independent basis of Indian title.

b. Recognition

Jurisprudence is divided over the issue of whether the historical oc-
cupation of lands by Indians is of itself enough to constitute Indian title.
One line of authority holds that formal recognition by treaty, executive order
or legislative enactment is a prerequisite for the legal enforcement of abori-
ginal title.32

Dickson J. subscribes to the other line of authority. He does not view
executive or legislative recognition as a precondition for the existence or
legal enforceability of aboriginal title.33 He makes this clear in the statement,
already quoted, that the Indians’ “interest in their lands is a pre-existing
legal right not created by Royal Proclamation, by section 18(1) of the Indian
Act, or by any other executive order or legislative provision”. 34 This position
must now be regarded as settled law in Canada.

Dickson J. goes beyond the affirmation of the independent basis of
aboriginal title when he equates recognized with unrecognized Indian title:

It does not matter, in my opinion, that the present case is concerned with the
interest of an Indian Band in a reserve rather than with unrecognized aboriginal

29Supra, note 22.
30Supra, note 1 at 379.
31Ibid. at 352.
3 2St Catharines, supra, note 2 at 643-5 per Taschereau J.; Tee-Hit-Ton Indians v. United
States, 348 U.S. 272 at 277-9 (1955) per Reed J.; Socit6 de d~veloppement de la Baie James
v. Kanateivat (1974), [1975] C.A. 166 at 172 per Turgeon J.; United States v. Sioux Nation of
Indians, 448 U.S. 371 (1980) [hereinafter cited as Sioux Nation].
33Worcester v. Georgia, 31 U.S. 405, 6 Pet. 515 at 543-5, 558-61 (1832) [hereinafter cited to
Pet. as Worcester]; Mitchelv. United States, 34 U.S. 464, 9 Pet. 711 at 745-7 (1835) [hereinafter
cited to Pet. as Mitchell; Minnesota v. Hitchcock, 185 U.S. 373 at 388-9 (1902); Cramer v.
United States, 261 U.S. 219 (1923); United States v. Santa Fe Pacific Railroad Co., 314 U.S.
339 at 347 (1941); United States v. Alcea Band of Tillamooks, 329 U.S. 40 at 51-2 (1946);
Calder, supra, note 22 at 322-3 and 328 per Judson J., at 390 per Hall J.; Oneida Indian Nation
of New York v. County of Oneida, 414 U.S. 661 at 669 (1974); Hamlet of Baker Lake v. Minister
ofIndian Affairs and Northern Development (1979), [1980] 1 EC. 518 at 556-7, [1980] 5 W.W.R.
193 (T.D.) [hereinafter cited to E.C. as Baker Lake].

34Guerin v. The Queen, supra, note 1 at 379.

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title in traditional tribal lands. The Indian interest in the land is the same in
both cases-, see Attorney-General for Quebec v. Attorney-General for Canada,
[1921] 1 A.C. 401, at pp. 410-11. (the “Star Chrome” case).3 5

This equation of unrecognized, “pure” aboriginal title with recognized,
“reserve” aboriginal title is useful to the extent that it clarifies that the former
is as enforceable in the courts as is the latter. It is unclear, however, whether
the two forms of aboriginal title must always be identical in content.

Three situations come to mind. First, in the case of unrecognized abori-
ginal title, the indigenous people concerned base their rights in land exclu-
sively upon their own traditional occupation, and not on any executive or
legislative recognition. The only definition of unrecognized aboriginal title
is that furnished by the case law; this definition is arguably broad enough
to include the exclusive possession, use and benefit of all economic resources
of the object lands.36

Second is the case of recognized aboriginal title. Such title generally
arises where, by treaty, Indian peoples cede a portion of their traditional
lands to the Crown and reserve a portion for themselves. The Crown rec-
ognizes the Indians’ aboriginal title to the reserved land. The content of
this aboriginal title may be the same as that of unrecognized aboriginal title
or it may be restricted to certain defined elements. In addition, the Indian
people concerned may retain or enjoy certain rights, usually of hunting,
fishing and trapping, on the ceded lands. 37

Crown grants form the third case. In some instances, such as the reserves
purchased by the Crown in southern Canada for certain Indian bands after
the American Revolutionary War, the Indian grantees may not have had
any aboriginal title of occupation. In that event, their only title would be
their grants from the Crown, and the rights comprised in such grants would
vary from case to case.38

35Ibid. at 379 [emphasis added].
36For recent Canadian cases of unrecognized aboriginal title, see Calder, supra, note 22;
Baker Lake, supra, note 33; Ominayak v. Norcen Energy Resources (1983), 29 Alta L.R. (2d)
151 (Q.B.), aff’d (I I January 1985), (C.A.), leave to appeal refused (14 March 1985), (S.C.C.)
[unreported]; MacMillan Bloedell Ltd v. Mullin (27 March 1985), (B.C.C.A.) [unreported].

37See, e.g., St Catherine’s Milling, supra, note 24; R. v. Wesley (1932), [1932] 4 D.L.R. 774,
[1932] 2 W.W.R. 337 (Alta S.C. App. Div.); R. v. Sikyea (1964), 43 D.L.R. (2d) 150, 43 C.R.
83 (N.W.T.C.A.), aff’d (1964), [1964] S.C.R. 642, 50 D.L.R. (2d) 80; Moosehunterv. The Queen
(1981), [1981] 1 S.C.R. 282; Treaty No. 3 of 3 October 1873, reprinted in P.A. Cumming &
N.H. Mickenberg, eds, Native Rights in Canada, 2d ed. (1972) at 313ff.

38See Cumming & Mickenberg, ibid., ch. 13; Personal communication J. O’Reilly to J. Hurley

(1985) Montreal, Quebec as to three-fold distinction in Indian tenure.

1985]

CHRONIQUE DE JURISPRUDENCE

These three cases suggest that the content of Indian land title may have
to be determined on an individual basis. Such a conclusion is in keeping
with Dickson J.’s caution in Kruger v. The Queen that:

Claims to aboriginal title are woven with history, legend, politics and moral
obligations. If the claim of any Band in respect of any particular land is to be
decided as ajusticiable issue and not a political issue, it should be so considered
on the facts pertinent to that Band and to that land, and not on any global
basis. 39

c. Continuity

The principle of continuity of property rights is akin to that of acquired
rights. It provides that property rights, once established, continue unaffected
by a change of sovereignty unless positively modified or abrogated by the
new sovereign. This principle has been held to apply to aboriginal title. 40

Dickson J. reaffirms the principle of continuity in relation to Indian
title. He finds that in Johnson v. McIntosh,41 Marshall C.J. was “of opinion
that the rights of Indians in the lands they traditionally occupied prior to
European colonization both predated and survived the claims to sovereignty
made by various European nations in the territories of the North American
continent”. 42 He then refers to Amodu Tijani v. Secretary, Southern Nigeria43
as authority for the “principle that a change in sovereignty over a particular
territory does not in general affect the presumptive title of the inhabitants”. 44

It should now be taken as settled law in Canada that the mere acqui-
sition of sovereignty by European powers over aboriginal lands did not
extinguish ipsofacto the aboriginal title of the indigenous occupants. Absent
express confiscation or subsequent expropriatory legislation by the new sov-
ereign, aboriginal title is presumed to have survived the change of sov-
ereignty unaffected.

39(1977), [1978] 1 S.C.R. 104 at 109, [1977] 4 W.W.R. 300.
40Campbell v. Hall (1774), 1 Cowp. 204, 98 E.R. 848 at 895-6 (K-B.); Worcester, supra, note
33 at 544 and 559; Mitchel, supra, note 33 at 734;R. v. Symonds (1847), [1840-1932] N.Z.PC.C.
387 at 390 (S.C.); Nireaha Tamaki v. Baker (1901), [1901] A.C. 561 at 579 (P.C.); Re Southern
Rhodesia (1918), [1919] A.C. 211 at 234 (PC.); Amodu Tijani v. Secretary, Southern Nigeria
(1921), [1921] 2 A.C. 399 at 407 (P.C.) [hereinafter Amodu Tijani]; Okeyan v. Adele (1957),
[1957] All E.R. 785 (PC.); Calder, supra, note 22 at 383-9 and 401-4perHall J.; D.P O’Connell,
State Succession in Municipal Law and International Law, vol. 1 (1967) ch. 10; B. Slattery,
The Land Rights of Indigenous Canadian Peoples (1979) ch. 6.

41Supra, note 26.
42Guerin v. The Queen, supra, note 1 at 377-8.
43Supra, note 40.
44Guerin v. The Queen, supra, note I at 378.

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[Vol. 30

d. Nature

In considering whether Indian title gives rise to a fiduciary or trust duty
for the Crown, Dickson J. is called upon to examine the nature of such title.
He notes that the case law has variously characterized Indian title as a
“personal and usufructuary right” and as a “beneficial interest”. 45 In Dick-
son J.’s view, while each of these characterizations possesses a core of truth,
neither is entirely accurate.46

Personal and Usufructuary Right

As Dickson J. notes, the characterization of Indian title in Canada as
a “personal and usufructuary right” dates back to the Privy Council’s de-
cision in St Catherine’s Milling and Lumber Co. v. The Queen.4 7 In that
case, Lord Watson stated that the Crown had a “substantial and paramount
estate” which underlied the Indian title and “which became a plenum dom-
inium whenever that title was surrendered or otherwise extinguished. ‘ 48 On
this view, Indian title was a mere burden upon the present proprietary estate
of the Crown in the land.49 The Privy Council reaffirmed this view in A.G.
Quebec v. A. G. Canada (the Star Chrome case).50

“Personal”

As applied to Indian title, “personal” is not used in opposition to a
“real” right in land. In Star Chrome,51 the Privy Council interpreted “per-
sonal” to mean that Indian title was inalienable except to the Crown. The
Privy Council did not state that Indian title was inherently inalienable; it
merely restated the traditional doctrine of Crown pre-emption of Indian
title.5 2 The Privy Council therefore implicitly recognized that Indian title
was capable of alienation, albeit only to the Crown.

Recent interpretations of the “personal” nature of Indian title have
differed from that provided in Star Chrome. In Smith v. The Queen, Estey
J., speaking for a unanimous Supreme Court of Canada, described Indian
title as

45Ibid. at 379-82.
46Ibid. at 382.
47Supra, note 24 at 54.
48Ibid. at 55.
49Ibid. at 58.
50(1920), [1921] 1 A.C. 401 at 410-1, 56 D.L.R. 373 (P.C.) [hereinafter cited to A.C. as Star

Chrome].
51Ibid.
52This doctrine is embodied in the Royal Proclamation of 1763, reprinted in R.S.C. 1970,

App. 1.

1985]

COMMENT

a personal right which by law must disappear upon surrender by the person
holding it; such an ephemeral right cannot be transferred to a grantee, be it
the Crown or an individual. The right disappears in the process of the release,
and a release couched in terms inferring a transfer cannot operate effectively
in law on the personal right any more than an express transfer could. In either
process the right disappears. 53

Here Estey J. suggests that Indian title is intrinsically incapable of al-
ienation to anyone, whether to the Crown or to an individual. But this
blanket assertion of the inalienability of Indian title does not appear to be
supported by Star Chrome, for the latter judgment, as has been seen, rec-
ognized that Indian title was capable of alienation, even if only to the Crown.

In Guerin, Dickson J. widens the scope of the word “personal” still

further. He finds that the Smith decision

held that the Indian right in a reserve, being personal, could not be transferred
to a grantee, whether an individual or the Crown. Upon surrender the right
disappeared “in the process of release”. 54

Dickson J. infers from this supposed inalienability of Indian title that
it does not constitute a property interest. This inference arises during his
discussion of the absence of a trust imposed on the Crown with regard to
Indian lands.55 The Smith decision is again cited as authority for the prop-
osition that “upon unconditional surrender the Indians’ right in the land
disappears”. 56 From this proposition Dickson J. deduces that “[n]o property
interest is transferred which could constitute the trust res”.57

The three cases just mentioned reveal a progression in their treatment
of personal Indian title. In Star Chrome, “personal” means that Indian title
is inalienable except to the Crown. In Smith, it means that Indian title is
inalienable to anyone, whether to an individual or to the Crown. And in
Guerin, it means not only this general inalienability of Indian title, but its
non-property character as well. Each of these cases purports to rely upon
its predecessor. Careful analysis shows, however, that the progressive broad-
ening of the term “personal”, and the corresponding diminution of the
content of Indian title, are not justifed by the authorities cited in these cases.
Further, they are not in keeping with the basic reasons for the inalienability
of Indian title. Dickson J. himself mentions two of these reasons.

53(1983), [1983] 1 S.C.R. 554 at 569, 147 D.L.R. (3d) 237 [hereinafter cited to S.C.R. as

Smith].

54Guerin v. The Queen, supra, note I at 381.
551bid. at 386.
56Ibid. at 386.
57Ibid. at 386.

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[Vol. 30

First, he notes that “the Privy Council’s emphasis on the personal na-
ture of aboriginal title stemmed in part from constitutional arrangements
peculiar to Canada”.5 8 Under section 109 of the Constitution Act, 1867,59
lands formerly belonging to the pre-Confederation provinces now belong to
the corresponding post-Confederation provinces. So long as Indian title has
not been extinguished, however, the provincial Crown’s title in such lands
is incomplete. According to the Privy Council in St Catherine’s Milling,
such lands “vested in the Crown, subject to ‘an interest other than that of
the Province in the same,’ within the meaning of sect. 109”.60 Under section
91(24) of the Constitution Act, 1867,61 only the Crown in right of Canada
has jurisdiction to extinguish or to accept a surrender of Indian title. But
the extinguishment of Indian title does not convey such title to Canada; its
effect is to disencumber the Province’s title of the burden of Indian title in
the object lands. Thus, while a surrender of Indian title may be accepted
only by Canada, it enures, if absolute, to the exclusive benefit of the Province.62

These peculiar constitutional arrangements mean that Indians may not
directly transfer their title in land to any grantee. Such a direct transfer,
either to individuals or to the Provinces, is prohibited by the Royal Pro-
clamation of 1763,63 section 37 Indian Act, 64 and section 91(24) of the
Constitution Act, 1867.65 Moreoever, a direct transfer to Canada is prohib-
ited by section 109 Constitution Act, 1867.66

The constitutional impossibility of a direct transfer of Indian title to
any grantee does not mean, however, that this title is intrinsically incapable
of any transfer whatever, even indirect. The surrender process demonstrates
just the opposite. Due to the constitutional arrangements outlined above,
an absolute surrender does not convey Indian title to the Province directly,
but it does convey such title to the Province indirectly, via the intermediary
of Canada. The fact that only Canada is constitutionally competent to accept
a surrender of Indian title for the benefit of the Province does not make
such a surrender any the less a conveyance of a property interest to the

581bid. at 380.
59(U.K.), 30 & 31 Vict., c. 3.
60Supra, note 24 at 58.
6 1Supra, note 59.
6 2 Ontario Mining Co. v. Seybold (1902), [1903] A.C. 73 (PC.) [hereinafter cited to A.C. as
Ontario Mining]; Canada v. Ontario (1910), [1910] A.C. 637 (PC.); Star Chrome, supra, note
50; Reference re Stony Plain Indian Reserve No. 135 (1981), 130 D.L.R. 636 (Alita C.A.) [her-
einafter Re Stony Plain]; Smith, supra, note 53; J. O’Reilly, “La Loi constitutionnelle de 1982:
droit des autochtones” (1984) 25 C. de D. 125 at 134.

63Supra, note 52.
64Supra, note 3.
65Supra, note 59.
661bid.

19851

CHRONIQUE DE JURISPRUDENCE

Province. It merely subjects this conveyance to the compulsory intervention
and supervision of Canada as the guardian of the Indians’ interest.

Contrary to Estey J.’s view in Smith,67 therefore, Indian title does not
disappear upon surrender in a magic puff of smoke. It passes to the Province
through the intermediary of Canada. In St Catherine’s Milling, Lord Watson
referred to “the right of the Provinces to a beneficial interest in these [Indian]
lands, available to them as a source of revenue whenever the estate of the
Crown is disencumbered of the Indian title”.68 A surrender by Indians of
their title to Canada accordingly has the effect of conveying the Indians’
beneficial interest in the object lands to the Province concerned.

The fact that, under different constitutional arrangements, Indian title
is capable of direct transfer to the Crown is attested to by the colonial record.
The Royal Proclamation of 1763 is predicated on that premise. It codifies
the British Crown’s consistent practice throughout colonial North America
of accepting direct conveyances from the Indians of their title. Both by its
practice and by its legislation, therefore, the British Crown recognized that
Indian title was a property interest in land identical to a fee simple in all
respects save that, by virtue of the doctrine of Crown pre-emption, such
title could only be alienated to the Crown.

The proprietary, alienable character of Indian title is also supported by
a considerable body of American, British and Canadian case law.69 In the
Guerin case itself, Le Dain J. endorsed, on behalf of the Federal Court of
Appeal, the view of Indian title as a right of property. He wrote:

Professor K. Lysyk (now Mr. Justice Lysyk) in his article, “The Indian Title
Question in Canada: An Appraisal in the Light of Calder” (1973), 51 Can. Bar
Rev. 450 at p. 473, expressed the view that the Indian title amounts to a
beneficial interest in the land. He drew this conclusion from the implication,
in what was said in St. Catherine’s Milling and subsequent decisions of the
Privy Council, which I have cited, concerning the effect of the extinguishment
of Indian title, that until such extinguishment the beneficial interest in the land
was not available to the province and only passed or reverted to the province
upon the extinguishment of the Indian title. There is in my opinion much
force in this view. For the reasons suggested by Viscount Haldane in Amodu
Tijani, to which Professor Lysyk also makes reference, if the Indian title cannot
be strictly characterized as a beneficial interest in the land it amounts to the
same thing. It displaces the beneficial interest of the Crown. As such, it is a
qualification ofthe title ofthe Crown ofsuch content and substance as to partake,

67Supra, note 53.
68Supra, note 24 at 59 [emphasis added].
69Worcester, supra, note 33 at 544-5 and 559-61; Mitchel, supra, note 33 at 745-6, 749, 752
and 758; St Catharines, supra, note 2 at 608-16 per Strong J.; Re Southern Rhodesia, supra,
note 40; Amodu Tijani, supra, note 40; Calder, supra, note 22 at 375-90 per Hall J.

McGILL LAW JOURNAL

[Vol. 30

in my opinion, of the nature ofa right ofproperty. I am, therefore, of the opinion
that it could be the subject of a trust.70

These authorities lead to the conclusion that, if Indian title in Canada
is now incapable of direct transfer to the Crown, it is not because of the
non-proprietary character of such title, but because of the constraints im-
posed by the Constitution Act, 1867 in its division of jurisdictional and
proprietary rights between Canada and the Provinces.

The second basic reason for the restriction upon alienation of Indian
title was, as both Dickson and Estey JJ. point out, to protect the Indians’
interest in dealings with third parties. 71 Abusive purchases of Indian lands
by private settlers during the colonial period had resulted in unrest among
certain Indian nations. In order to prevent these abuses, and to protect the
Indians’ title to their lands, the British Crown adopted the policy of exclusive
Crown pre-emption. This policy, expressed most notably in the Royal Pro-
clamation of 1763, prohibited private purchases of Indian lands and re-
quired that all purchases of Indian lands be made either by the Crown or
by its representatives. 72

Crown pre-emption was never intended to deny that Indian title was
a property interest comprising the incidents of exclusive possession, occu-
pation and use. On the contrary, its purpose in restricting the alienation of
Indian title to the Crown was primarily to safeguard the Indians’ property
interest in their lands. This restriction necessarily assumed that Indian title
was capable of alienation to the Crown.

It is therefore incorrect to suggest, as do Estey J. in Smith and Dickson
J. in Guerin, that the Indians’ personal title in land is somehow intrinsically
incapable of alienation. If that were the case, the numerous treaties by which
Indian peoples across Canada have ceded their title to the Crown would
have had no object. By accepting the surrender of Indian title in these
treaties, the Crown acknowledged that such title is a property interest ca-
pable of alienation against compensation. In these cases, the Crown derived
its own title to the beneficial interest in the object lands from the Indians’
cession. 73

70The Queen v. Guerin, supra, note 2 at 711 [emphasis added].
7’Guerin v. The Queen, supra, note I at 382-3 and 392-3.
72See the Royal Proclamation, supra, note 52; Mitchel, supra, note 33 at 745-6 and 748-9;
St Catharines, supra, note 2 at 608-10, 623-6 per Strong J.; The King V. Lady McMaster (1926),
[1926] Ex. C.R. 68; Easterbrook v. The King (1930), [1931] S.C.R. 210, [1931] 1 D.L.R. 628;
Cumming & Mickenberg, supra, note 37, ch. 4; Slattery, supra, note 40, chs 4 and 5.

73Mitchel, ibid. at 749; R. v. White and Bob (1965), 50 D.L.R. (2d) 613 at 617, 52 W.W.R.
193 (B.C.C.A.) per Davey J., aff’d (1965), [1965] S.C.R. vi, 52 D.L.R. (2d) 481; Calder, supra,
note 22 at 390 and 394 per Hall J.

1985]

COMMENT

“Usufructuary”
The most recent assessment by the Supreme Court of Canada of the
word “usufructuary” in relation to Indian title was provided by Estey J. in
Smith v. The Queen.74 Since Dickson J. refers with approval to this as-
sessment in the Guerin case,75 it may be useful here to consider its accuracy.
In the Smith case, Estey J. describes the Indians’ usufructuary interest
in land as “but the right of the Indians in question to enjoy the use of the
land under federal legislative regulation”. 76 A surrender of Indian title re-
sults in “the revival or restoration of the complete beneficial ownership in
the Province without further burden by reason of s. 91(24)”. 77 And again,

[t]he effect of a complete release, therefore, would be the withdrawal of these
lands from Indian use within the contemplation of s. 91(24) of the Constitution
Act. As found in St. Catherine’s the title of the Province would be unencum-
bered by any operation of s. 91(24).78
Estey J. refers to the Shorter Oxford English Dictionary to define the

word “usufruct” as

1. Law. The right of temporary possession, use, or enjoyment of the advantages
of property belonging to another, so far as may be had without causing
damage or prejudice to it.

2. Use, enjoyment, or profitable possession (of something) 1811.79

These considerations lead Estey J. to view Indian title as an ephemeral,
personal right incapable of any transfer at all. 80

These passages reveal an unorthodox approach to Indian title. Estey J.
suggests that this title arises by operation of section 91(24) of the Consti-
tution Act, 1867. He also suggests that the provincial Crown possesses an
original title of complete beneficial ownership such that when the Indian
title is extinguished, the Province’s complete beneficial ownership is revived
or restored without further burden by reason of section 91(24). Both these
propositions appear, with deference, to be incorrect.

Section 91(24) of the Constitution Act, 1867 confers exclusive jurisdic-
tion upon the Parliament of Canada with respect to “Indians, and lands
reserved for the Indians”. Whereas it thereby empowers Canada to legislate
with regard to Indian title and to accept surrenders of such title, it does not

74Supra, note 53.
75Guerin v. The Queen, supra, note 1 at 381.
76Supra, note 53 at 564.
WIbid. at 562 [emphasis added].
78lbid. at 564.
79Ibid. at 569.
0Ibid.

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[Vol. 30

create such title. As Dickson J. notes in Guerin, Indian title “is a preexisting
legal right not created by Royal Proclamation, by s. 18(1) of the Indian Act,
or by any other executive order or legislative provision”, 8′ including, pre-
sumably, section 91(24) of the Constitution Act, 1867.

Second, for the surrender of Indian title to revive or restore complete
beneficial ownership in the Province, the latter must first have had such
ownership. It is by no means clear, however, that the Province ever had
such complete beneficial ownership prior to the extinguishment of Indian
title. Estey J. relies upon the Privy Council decision in St Catherine’s Milling
as authority for the proposition that it did. But, with respect, Lord Watson
does not say this in St Catherine’s Milling. What he does say is:

It appears to them [their Lordships] to be sufficient for the purposes of this
case that there had been all along vested in the Crown a substantial and par-
amount estate, underlying the Indian title, which became a plenum dominium
whenever that title was surrendered or otherwise extinguished. 82

Again, describing Indian and Crown land title before surrender, Lord Watson
writes:

The Crown has all along had a present proprietary estate in the land, upon
which the Indian title was a mere burden. The ceded territory was at the time
of the union, land vested in the Crown, subject to “an interest other than that
of the Province in the same,” within the meaning of sect. 109; and must now
belong to Ontario in terms of that clause, unless its rights have been taken
away by some provision of the Act of 1867 other than those already noticed. 83

Lord Watson goes on to say:

The fact that the power of legislating for Indians, and for lands which are
reserved to their use, has been entrusted to the Parliament of the Dominion
is not in the least degree inconsistent with the right of the Provinces to a
beneficial interest in these lands, available to them as a source of revenue
whenever the estate of the Crown is disencumbered of the Indian title.84
These passages establish that surrender disencumbers the provincial
Crown’s title of Indian title. Although Lord Watson states that Indian title
is subject to federal jurisdiction under section 91(24) of the Constitution
Act, 1867, he does not, despite Estey J.’s assertion to the contrary, equate
such title with a “burden by reason of s. 91(24)”.

Moreover, the passages quoted above suggest that the Province’s ben-
eficial interest in Indian lands does not predate the surrender or extinguish-
ment of Indian title. On the contrary, the Province’s beneficial interest arises

8’Guerin v. The Queen, supra, note I at 379.
82Supra, note 24 at 55.
83Ibid. at 58-9 [emphasis added].
841bid. at 59 [emphasis added].

1985]

CHRONIQUE DE JURISPRUDENCE

only upon such surrender or extinguishment. Until then, the Province has
no more than a bare legal right to the land, subject to “an interest other
than that of the Province in the same”, under section 109 of the Constitution
Act, 1867. It is this “radical” or “ultimate” title which Lord Watson means
by the Crown’s “substantial and paramount estate, underlying the Indian
title”.85

This impression is strengthened when Lord Watson later observes that,
following the Indians’ surrender of their land title, Canada’s retained juris-
diction over their hunting and fishing cannot empower her to dispose “of
that beneficial interest in the timber which has now passed to Ontario”.86
The word “now” indicates that it is the surrender which conveys the ben-
eficial interest to Ontario. In consequence, the Province did not have any
prior beneficial interest in the land for the surrender to revive or restore.
Its only beneficial interest was that first conveyed to it by the surrender of
the Indians.

If neither Canada nor the Province had the beneficial interest in the
land before the surrender of Indian title, who did? The only other candidate
is the Indians themselves. It is precisely of this beneficial interest that the
Indian title consists, and it is this beneficial interest which the surrender
conveys, via Canada, to the Province.

It is true that Lord Watson does not expressly refer to the Indian title
as a beneficial interest. Rather, he characterizes it as a “personal and usuf-
ructuary right”. But no incompatibility arises between this right and a ben-
eficial interest. Both rights comprise the substantive possession, use and
enjoyment of property. Both include all the incidents of a right of property,
save for the right to dispose freely of the thing itself. Both are themselves
incapable of alienation. Both are dismemberments carved out of a complete
right of property, leaving only a shell behind. The shell left behind the
usufruct is the bare property; that left behind the beneficial interest is the
legal or trust title. If, owing to their respective common and civil law origins,
beneficial interest and usufruct are not precisely equivalent terms, Lord
Watson does not use them in a technical or precise way. Rather, his intent
seems to have been to distinguish between the substantive incidents of
ownership on the one hand, and the legal title to property on the other. It
is in this sense that he distinguishes between the Indian’s “personal and
usufructuary right” and the Crown’s “paramount estate”.

This interpretation is supported by other authorities. The Marshall Court
decisions, to which the Privy Council was referred, distinguished, early in

85Ibid. at 55.
86Ibid. at 60 [emphasis added].

McGILL LAW JOURNAL

[Vol. 30

the nineteenth century, between, on the one hand, the Indians’ exclusive
possession, occupation and use, tantamount to beneficial ownership, and,
on the other, the Europeans’ ultimate title. The latter, the Marshall Court
held, conferred merely contingent rights of property. It did not vest the
Crown with immediate beneficial ownership, but entitled the Crown to ac-
quire the beneficial ownership from the Indians. This the Crown could do
by the exercise of rights incidental to its paramount or radical title: the right
of pre-emption, or purchase upon voluntary sale, the right of eminent do-
main or expropriation, and the right of remainder or reversion upon vol-
untary abandonment by the Indians.87

This interpretation is also consistent with the opinion of Strong J. in
St Catharines Milling and Lumber Co. v. The Queen,88 cited with approval
by Hall J. in Calder v. A.G. British Columbia.89 Relying substantially upon
the Marshall Court decisions, Strong J. discusses the British colonial policy
of recognizing the Indians’ usufructuary title. This policy, he argues,

may be summarily stated as consisting in the recognition by the Crown of a
usufructuary title in the Indians to all unsurrendered lands. This title, though
not perhaps susceptible of any accurate legal definition in exact legal terms,
was one which nevertheless sufficed to protect the Indians in the absolute use
and enjoyment of their lands, whilst at the same time they were incapacitated
from making any valid alienation otherwise than to the crown itself, in whom
the ultimate title was, in accordance with the English law of real property,
considered as vested.90

This passage succinctly states the classical law on relative Crown and
Indian land titles. Its treatment of the notion of personal and usufructuary
Indian title and ultimate Crown title is more explicit than, but quite con-
sistent with, the Privy Council’s laconic approach to these issues. “Usu-
fructuary” indicates the Indians’ “absolute use and enjoyment of these lands”.
This title is tantamount to beneficial ownership. It is usufructuary because
the Crown held the ultimate, or paramount, title prior to extinguishment.
The chief practical consequence of ultimate title was that it gave the Crown
the exclusive right to acquire, by purchase, the Indians’ title. It therefore
consisted, not of a present beneficial interest, but of a contingent right of
ownership dependent for its realization upon the Crown’s exercise of its
right of pre-emption.

R.J.T. 403.

See J. Hurley, “Aboriginal Rights, the Constitution and the Marshall Court” (1982-83) 17

88Supra, note 2 at 602-38. Strong J. dissented on other grounds.
89Supra, note 22 at 376 and 378-9.
9oSt Catharines, supra, note 2 at 608.

1985]

COMMENT

Expanding upon colonial policies towards the Indians’ usufructuary

title, Strong J. writes:

It thus appears, that in the United States a traditional policy, derived from
colonial times, relative to the Indians and their lands has ripened into well
established rules of law, and that the result is that the lands in the possession
of the Indians are, until surrendered, treated as their rightful though inalienable
property, so far as the possession and enjoyment are concerned; in other words,
that the dominium utile is recognized as belonging to or reserved for the In-
dians, though the dominium directum is considered to be in the United States.91

This policy, Strong J. notes, originated with the British colonial authorities
and applies with as much force in Canada as in the United States. 92

Strong J. summarizes the position in Canada as follows:

[A]t the date of confederation the Indians, by the constant usage and practice
of the crown, were considered to possess a certain proprietary interest in the
unsurrendered lands which they occupied as hunting grounds; that this usage
has either ripened into a rule of the common law as applicable to the American
Colonies, or that such a rule had been derived from the law of nations and
had in this way been imported into the Colonial laws as applied to Indian
Nations; that such property of the Indians was usufructuary only and could
not be alienated, except by surrender to the crown as the ultimate owner of
the soil …. 93

The Indian usufructuary title, according to Strong J., constitutes a gen-
uinely proprietary interest in land. This title is qualified by the adjectives
“personal and usufructuary” to denote the consequences of the Crown’s
right of pre-emption attendant upon its ultimate sovereign title. It differs
from an unqualified right of property, or fee simple, in the one sense that
it can only be alienated to the Crown. Alienation is, however, possible to
the Crown; the Crown’s own beneficial ownership, or dominium utile, has
no other source than the Indians’ cession of their own beneficial interest.

The Privy Council again considered the relationship between usufruc-
tuary aboriginal title and radical or ultimate Crown title in Amodu Tijani
v. Secretary, Southern Nigeria.94 In so doing, it explicitly referred to its
judgment in St Catherine’s Milling. Viscount Haldane said in Amodu Tijani
that:

[A] very usual form of native title is that of a usufructuary right, which is a
mere qualification of or burden on the radical or final title of the Sovereign
where that exists. In such cases the title of the Sovereign is a pure legal estate,
to which beneficial rights may or may not be attached. But this estate is qualified

91Ibid. at 612.
92Ibid. at 612-3.
93Ibid. at 615-6.
94Supra, note 40.

REVUE DE DROIT DE McGILL

[Vol. 30

by a right of beneficial user [in favour of the aboriginies] which may not assume
definite forms analagous to estates, or may, where it has assumed these, have
derived them from the intrusion of the mere analogy of English jurisprudence.
Their Lordships have elsewhere explained principles of this kind in connection
with the Indian title to reserve lands in Canada. (St. Catherine’s Milling and
Lumber Company v. The Queen ….95

Elaborating upon usufructuary title, Viscount Haldane went on to say:

That title, as they [their Lordships have pointed out, is prima facie based, not
on such individual ownership as English law has made familiar, but on a
communal usufructuary occupation, which may be so complete as to reduce any
radical right in the Sovereign to one which only extends to comparatively limited
rights of administrative interference.96

Both these extracts were cited with approval by Hall J. in Calder v. A.G.
British Columbia.97

These authorities suggest that the Indians’ usufructuary title is quite
consistent with a proprietary interest in land. This right is also capable of
transfer, albeit only to the Crown. In view of the wealth of judicial inter-
pretation of usufructuary aboriginal title, it is perplexing why, in the Smith
case, Estey J. turned to the Shorter Oxford English Dictionary for a definition
of such title. The cases indicate that Indian title is a good deal more solid
than the ephemeral right to which Estey J. refers.

Estey J.’s treatment of usufructuary Indian title in Smith leads Dickson
J. to conclude in Guerin that such title is not a property interest. With
respect, this conclusion runs counter to the bulk of the authorities.

ii. Beneficial Interest

Dickson J. concedes that certain authorities have characterized Indian
title as a beneficial interest in land. 98 No real conflict arises, in Dickson J.’s
view, between this characterization and the view of Indian title as a personal
and usufructuary right. Both contain a core of truth. However, because both
are drawn from foreign legal traditions, neither is entirely accurate in de-
scribing Indian title. Dickson J. therefore concludes that Indian title “does
not, strictly speaking, amount to beneficial ownership …”. He prefers the
label “sui generis interest”. 99

95 Ibid.
96 Ibid. at 409-10 [emphasis added].
97Supra, note 22 at 354 and 401.
9 Guerin v. The Queen, supra, note 1 at 379-80.
99Ibid. at 382.

1985]

CHRONIQUE DE JURISPRUDENCE

Wilson J., on the other hand, frankly acknowledges the beneficial in-

terest of Indians, at least in their reserve lands:

I think that when s. 18 mandates that reserves be held by the Crown for the
use and benefit of the Bands for which they are set apart, this is more than
just an administrative direction to the Crown. I think it is the acknowledgement
of a historic reality, namely that Indian Bands have a beneficial interest in their
reserves and that the Crown has a responsibility to protect that interest and
make sure that any purpose to which reserve land is put will not interfere with
it. This is not to say that the Crown either historically or by s. 18 holds the
land in trust for the Bands. The Bands do not have the fee in the lands; their
interest is a limited one. But it is an interest which cannot be derogated from
or interfered with by the Crown’s utilization of the land for purposes incom-
patible with the Indian title unless, of course, the Indians agree.1

Clearly affirming Indian title as a beneficial interest, at least in reserve lands,
Wilson J. appears on this point more in line with the bulk of the authorities,
examined under the previous headings, than does Dickson J.

It should be noted, however, that Wilson J. addresses her remarks spe-
cifically to reserve lands. Unlike Dickson J., she does not treat of the dis-
tinction between recognized and unrecognized Indian title. It is unclear,
therefore, whether Wilson J. views unrecognized Indian title in unsurren-
dered lands as comprising the same beneficial interest as recognized Indian
title in reserve lands.

Wilson J. states that the Crown may not derogate from or interfere
with Indian title unless the Indians agree. This stipulation of Indian consent
as a precondition for extinguishment of Indian title marks an advance on
much of earlier Canadian case law on the topic. In St Catherine’s Milling,
for example, Lord Watson stated that the Indians’ tenure was “dependent
upon the good will of the Sovereign”.101 In Calder v. A.G. British Columbia,10 2
Judson J. apparently upheld the Crown’s unfettered discretion to extinguish
Indian title. By making this extinguishment of Indian title contingent upon
Indian consent, Wilson J. concurs with such American authorities as Min-
nesota v. Hitchcock.10 3

iii. Sui Generis Right

Having concluded that Indian title partakes of both a personal and
usufructuary right and a beneficial interest in land, Dickson J. calls it a sui
generis interest:

Indians have a legal right to occupy and possess certain lands, the ultimate
title to which is in the Crown. While their interest does not, strictly speaking,

‘Ibid. at 349 [emphasis added].
‘OSupra, note 24 at 54.
102Supra, note 22 at 333-5.
103Supra, note 33 at 388-9.

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amount to beneficial ownership, neither is its nature completely exhausted by
the concept of a personal right. It is true that the sui generis interest which the
Indians have in the land is personal in the sense that it cannot be transferred
to a grantee, but it is also true, as will presently appear, that the interest gives
rise upon surrender to a distinctive fiduciary obligation on the part of the
Crown to deal with the land for the benefit of the surrendering Indians. These
two aspects of Indian title go together, since the Crown’s original purpose in
declaring the Indians’ interest to be inalienable otherwise than to the Crown
was to facilitate the Crown’s ability to represent the Indians in dealings with
third parties. The nature of the Indians’ interest is therefore best characterized
by its general inalienability, coupled with the fact that the Crown is under an
obligation to deal with the land on the Indians’ behalf when the interest is
surrendered. Any description of Indian title which goes beyond these two fea-
tures is both unnecessary and potentially misleading. 0 4

According to Dickson J., then, the two essential components of Indian
title are, first, its general inalienability and, second, the fiduciary duty of
the Crown to which it gives rise upon surrender. Although referring to the
“general” inalienability of Indian title, Dickson J. makes it plain that this
title was originally susceptible of alienation to the Crown. If it is no longer
so alienable, this is not because of a defect inherent in Indian title, but
because of the constitutional peculiarities discussed earlier.

Inalienability and fiduciary duty are important elements of Indian title.
Yet it is unclear whether, as Dickson J. states, “[a]ny description of Indian
title which goes beyond these two features is both unnecessary and poten-
tially misleading.”‘ 05 A number of questions arise with regard to Indian
title which cannot be reduced to these two features. For example, does Indian
title comprise ownership of natural resources, surface and sub-surface, re-
newable and non-renewable? Or is it restricted to a right of hunting and
fishing, as Mahoney J. suggests in Hamlet of Baker Lake v. Minister of
Indian Affairs and Northern JDevelopment?10 6 Is Indian title capable of dis-
memberment like other property interests? Is it a “real” right which inheres
in the land despite conveyance to a third party? Does it remove Indian
land, both unsurrendered and reserved, from provincial jurisdiction? The
settlement of aboriginal land claims turns upon issues such as these. Parties
to land claims negotiations may well require further clarification of relative
Indian and Crown land titles than the Supreme Court of Canada provides
in the Guerin decision.

104Guerin v. The Queen, supra, note I at 382.
‘OsIbid. at 382.
106Supra, note 33 at 559 and 568.

1985]

COMMENT

3. Surrender Requirement

a. General

The Crown’s fiduciary duty, as Dickson J. argues, does not proceed
solely out of the Indians’ interest in land. It is created by the combination
of this interest with what may be called the “surrender requirement”:

Dickson J. later advances the surrender requirement as a separate source
of fiduciary duty for the Crown.10 8 Rather than a distinct source of fiduciary
duty, however, the surrender requirement may more properly be seen as a
feature of Indian title itself. From this perspective, the surrender require-
ment corresponds to the “personal” element of Indian title. This element,
as has been seen, stipulates that Indian title is inalienable except to the
Crown. From another perspective, the surrender requirement simply res-
tates the doctrine of Crown pre-emption, reserving for the Crown the ex-
clusive right to acquire Indian title.

b. Origin

The surrender requirement originated, Dickson J. argues, with the Royal
Proclamation of 1763. Since then, it has been incorporated into colonial
and federal legislation, including the current Indian Act, regulating Indian
affairs. According to Dickson J.,

[t]he Royal Proclamation of 1763 provided that no private person could pur-
chase from the Indians any lands that the Proclamation had reserved to them,
and provided further that all purchases had to be made by and in the name
of the Crown, in a public assembly of the Indians held by the governor or
commander-in-chief of the colony in which the lands in question lay. As Lord
Watson pointed out in St. Catherine’s Milling, … this policy with respect to
the sale or transfer of the Indians’ interest in land has been continuously main-
tained by the British Crown, by the governments of the colonies when they
became responsible for the administration of Indian affairs, and, after 1867,
by the federal government of Canada. Successive federal statutes, predecessors
to the present Indian Act, have all provided for the general inalienability of

07Guerin v. The Queen, supra, note 1 at 376.
08Ilbid. at 376.

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Indian reserve land except upon surrender to the Crown, the relevant provi-
sions in the present Act being ss. 37-41.109

c. Purpose

As already noted, the surrender requirement was ordained not so much
to profit the Crown as to serve the Indians’ best interests. Dickson J. observes
that

[t]he purpose of the surrender requirement is clearly to interpose the Crown
between the Indians and prospective purchasers or lessees of their land, so as
to prevent the Indians from being exploited. This is made clear in the Royal
Proclamation itself, which prefaces the provision making the Crown an inter-
mediary with a declaration that “great Frauds and Abuses have been committed
in purchasing Lands of the Indians, to the great Prejudice of our Interests, and
to the great Dissatisfaction of the said Indians … .. Through the confirmation
in the Indian Act of the historic responsibility which the Crown has undertaken,
to act on behalf of the Indians so as to protect their interests in transactions
with third parties, Parliament has conferred upon the Crown a discretion to
decide for itself where the Indians’ best interests really lie. This is the effect of
s. 18(l) of the Act.I”)

For Dickson J., the surrender requirement reflects the Crown’s ac-
knowledgement of the duty incumbent upon it, by virtue of its historical
role as guardian of the Indians, to protect their title in land. But if this is
so, the surrender requirement is not, contrary to Dickson J.’s earlier asser-
tion, itself a source of fiduciary duty. Rather, it is a specific manifestation
of a general fiduciary duty, and this duty in turn derives from the guardian
relationship existing between the Crown and the Indians. This topic is ex-
amined further below.

d. Scope

The two extracts just quoted from Dickson J.’s reasons for judgment
also establish that the inalienability of Indian title resulting from the sur-
render requirement is relative, not absolute, in scope. Dickson J. refers to
the Royal Proclamation, which recites that many conveyances of Indian
title occurred before 1763. The Proclamation purports to restrict, in favour
of the Crown, but for the benefit of the Indians, the latter’s capacity to
alienate their lands in the future. It does not seek to abrogate that capacity
entirely. On the contrary, it expressly contemplates the future purchase by
the Crown of the Indians’ title. The Royal Proclamation therefore evidences
the Crown’s recognition of Indian title as a proprietary interest capable of
alienation. The Proclamation does not ordain the general inalienabilty of

191bid. at 383.
1lbid. at 383-4.

1985]

CHRONIQUE DE JURISPRUDENCE

Indian title; it merely subjects, by way of prior surrender, transactions be-
tween the Indians and third parties to the scrutiny of the Crown in its
capacity as intermediary and guardian of the Indians’ interest.

e. Definition of “Surrendr'”

i. Release

As to the word “surrender” itself, Estey J. draws useful attention’11 to
the confusion resulting from the two senses attributed to it by the Indian
Act. In one sense “surrender” denotes “release”. This meaning emerges from
section 37 of the Act, which reads:

37. Except where this Act otherwise provides, lands in a reserve shall not be
sold, alienated, leased or otherwise disposed of until they have been surrendered
to Her Majesty by the band for whose use and benefit in common the reserve
was set apart.’ 12

In this case, an Indian band surrenders its interest in land to the Crown
as a prelude to the definitive alienation of that interest to a third party. The
effect of such an absolute surrender is to purge the object land of the Indian
title, and so to remove it from the category of “lands reserved for the
Indians” under section 91(24) of the Constitution Act, 1867.113

ii. Retention

In the other sense, “surrender” signifies the retention, albeit in a dif-
ferent form, of Indian title. This sense also emerges from section 37 of the
Act. It applies in cases where a band “surrenders” its interest in land to the
Crown so as to change the form of its use and benefit from direct to indirect,
as in a lease to a third party.’ 14 Such a surrender, Estey J. observes, “effect[s]
the proposed alternate use of the land for the benefit of the Indians”. He
goes on:

The Act, in short, does not require the Indian to limit his interest in Indian
lands to present and continuous occupation. The Band may vicariously occupy
the lands, or part of such lands, through the medium of a lease or licence …
This is not a release in the sense of that term in the general law. Indeed, it is

‘Guerin v. The Queen, supra, note I at 392-3.
112Supra, note 3.
113See, e.g., St Catherine’s Milling, supra, note 24; Ontario Mining, supra, note 62; A.G.
Canada v. Giroux (1916), 53 S.C.R. 172, 30 D.L.R. 123; Star Chrome, supra, note 50; Re Stony
Plain, supra, note 62; Smith, supra, note 53.
114See, e.g., St Ann’s Island Shooting and Fishing Club Ltd v. The King (1950), [1950] S.C.R.
211, [1950] 2 D.L.R. 225 [hereinafter cited to S.C.R. as St Ann’s Island]; Corp. of Surrey v.
Peace Arch Enterprises Ltd (1970), 74 W.W.R. 380 (B.C.C.A.); Western Industrial Contractors
Ltd v. Sarcee Developments Ltd (1979), 98 D.L.R. (3d) 424, [1979] 3 W.W.R. 631 (Alta C.A.).

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quite the opposite. It is a retention of interest and the exploitation of that
interest in the manner and to the extent permitted by statute law. The Crown
becomes the appointed agent of the Indians to develop and exploit, under the
direction of the Indians and for their benefit, the usufructuary interest as de-
scribed in St. Catherine’s.15

This ambiguity of meaning of “surrender” is a source of practical prob-
lems for Indian bands, casting doubt upon the legal status of their lands. It
would be helpful if the two senses of “surrender” were clearly distinguished
by an amendment to the Indian Act.

4. Discretion

Dickson J. cites as a third source of fiduciary duty for the Crown the

discretionary power vested in it by the Indian Act. He writes:

Through the confirmation in the Indian Act of the historic responsibility which
the Crown has undertaken, to act on behalf of the Indians so as to protect
their interests in transactions with third parties, Parliament has conferred upon
the Crown a discretion to decide for itself where the Indians’ best interests
really lie. This is the effect of s. 18(l) of the Act.

He continues:

[W]here by statute, agreement, or perhaps by unilateral undertaking, one party
has an obligation to act for the benefit of another, and that obligation carries
with it a discretionary power, the party thus empowered becomes a fiduciary.
Equity will then supervise the relationship by holding him to the fiduciary’s
strict standard of conduct.” 6

And again, “the nature of Indian title coupled with the discretion vested in
the Crown are sufficient to give rise to a fiduciary obligation”. ” 7

The Crown’s discretion does not of itself give rise to a fiduciary duty.
But this discretion, when combined with the Crown’s obligation to act for
the benefit of the Indians, constitutes the Crown a fiduciary. Dickson J.
seems to argue that the Crown has historically assumed a responsibility to
act in the interest of the Indians. This obligation predates the Indian Act.
Implicit in this finding is the notion that the Crown’s fiduciary duty towards
Indians exists independently of the Indian Act. In any event, the general
economy of the Indian Act reflects the Crown’s obligation to act for the

“5 Guerin v. The Queen, supra, note 1 at 392-3.
1″61bid. at 383-4.
1171bid at 386.

1985]

COMMENT

benefit of the Indians. The Act also confers upon the Crown a measure of
discretion to assist it in the discharge of this obligation. It is this combination
of obligation and discretion which gives rise to the Crown’s fiduciary duty.

It is also this combination of obligation and discretion which distin-
guishes the Crown from a mere agent. As already seen, Estey J. classifies
the Crown’s relationship with the Indians as one of agency.’ 18 But, according
to Halsbury, to which Estey J. himself refers, “[t]he essence of the agent’s
position is that he is only an intermediary between two other parties”.’ 9
It may readily be admitted that the Crown acts, in one sense, as an inter-
mediary between the Indians and third parties. But the Crown does not act
only as an intermediary. It is not a disinterested broker acting between two
equal parties. The Crown has a special, historical relationship with the In-
dians. This relationship, now formalized in the Indian Act, obliges the Crown
to act positively for the benefit of Indians. It also vests the Crown with the
discretion necessary to effect this aim. It therefore casts the Crown more in
the light of a fiduciary than an agent vis-dt-vis the Indians. Estey J. seems
not to take this special relationship into account.

In the instant case, Dickson J. observes, both section 18(1) of the Indian
Act and the surrender document confer broad discretion upon the Crown
in dealing with the surrendered lands. But this discretion is not unfettered.
It is limited both by the fiduciary relationship binding the Crown to the
Indians and by the specific terms of the Indian Act. As to the former, Dickson
J. states:

When, as here, an Indian Band surrenders its interest to the Crown, a fiduciary
obligation takes hold to regulate the manner in which the Crown exercises its
discretion in dealing with the land on the Indians’ behalf.120

As to the latter:

The discretion which is the hallmark of any fiduciary relationship is capable
of being considerably narrowed in a particular case. This is as true of the
Crown’s discretion vis-et-vis the Indians as it is of the discretion of trustees,
agents, and other traditional categories of fiduciary. The Indian Act makes
specific provision for such narrowing in ss. 18(1) and 38(2). A fiduciary obli-
gation will not, of course, be eliminated by the imposition of conditions that
have the effect of restricting the fiduciary’s discretion. A failure to adhere to
the imposed conditions will simply itself be a primafacie breach of the obligation.12′

1″81bid. at 391 and 393-4.
“9Halsbury’s Laws of England, vol. 1, 4th ed. (1973) para. 701 at 418 referred to by Estey

J. in Guerin v. The Queen, ibid. at 394 [emphasis added].

2 Ibid. at 385.
12’Ibid. at 387.

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Wilson J. also finds that the discretion conferred upon the Crown by
section 18(1) of the Indian Act is limited and subject to the equitable ju-
risdiction of the courts:

[W]hile I agree … that s. 18 does not go so far as to create a trust of reserve
lands …, it does not in my opinion exclude the equitable jurisdiction of the
courts. The discretion conferred on the Governor in Council is not an unfet-
tered one to decide the use to which reserve lands may be put. It is to decide
whether any use to which they are proposed to be put is “for the use and benefit
of the band”. This discretionary power must be exercised on proper principles
and not in an arbitrary fashion. It is not, in my opinion, open to the Governor
in Council to determine that a use of the land which defeats Indian title and
affords the Band nothing in return is a “purpose” which could be “for the use
and benefit of the band”. To so interpret the concluding part of s. 18 is to
deprive the opening part of any substance. 22

Thus while discretion forms an essential element of the Crown’s fi-
duciary duty, it is subject to such limits as are required to secure the purpose
of that duty.

5. Guardianship

Although neither Dickson J. nor Wilson J. explores it in detail, both
allude, in treating of the Crown’s fiduciary duty, to its historical role as
guardian of the Indians. Wilson J. writes:

This statement suggests that section 18 of the Indian Act is merely
declarative of a fiduciary duty incumbent on the Crown by reason of its
historical guardianship of the Indians. Dickson J. makes much the same
point when he speaks of “the confirmation in the Indian Act of the historic
responsibility which the Crown has undertaken, to act on behalf of the
Indians so as to protect their interests in transactions with third parties”. 124.

1221bid, at 350-1.
123Ibid, at 349.
124Ibid. at 383.

1985]

CHRONIQUE DE JURISPRUDENCE

Both these passages implicitly refer to the guardianship which has his-
torically characterized relations between the Crown and Indians. 25 This
historical guardianship, it may be argued, provides a more logical basis for
the Crown’s fiduciary duty towards the Indians than such specifics as the
surrender requirement or the Crown’s discretionary power with regard to
surrendered lands.

This view also appears more consistent with American authorities which
have inferred the fiduciary duty of the United States vis-d-vis the Indians
from the nature of the general legal relationship between the two. For over
one hundred fifty years, the American courts have consistently characterized
this relationship as one between guardians and ward. Chief Justice John
Marshall first expressed the relationship in Cherokee Nation v. Georgia:

Though the Indians are acknowledged to have an unquestionable, and, here-
tofore, unquestioned right to the lands they occupy until that right shall be
extinguished by a voluntary cession to our government, yet it may well be
doubted whether those tribes which reside within the acknowledged boundaries
of the United States can, with strict accuracy, be denominated foreign nations.
They may more correctly, perhaps, be dominated domestic dependent nations.
They occupy a territory to which we assert a title independent of their will,
which must take effect in point of possession when their right of possession
ceases. Meanwhile they are in a state of pupillage. Their relation to the United
States resembles that of a ward to his guardian. 126

Since then, the United States Supreme Court has often given legal effect to
specific fiduciary duties arising out of this general guardian relationship. 127

This inference of specific fiduciary duties from a general guardian re-
lationship seems to recommend itself more than Dickson J.’s deduction of
the Crown’s fiduciary duty from incidents like the surrender requirement.
In any event, having now affirmed the principle of the Crown’s fiduciary
duty towards the Indians, the Supreme Court of Canada has given Canadian

125This historical guardianship was recognized in such Canadian authorities as Re Indian
Claims, supra, note 2; R. v. Morley (1931), [1932] 4 D.L.R. 483 at 513, [1932] 2 W.W.R. 193
(B.C.C.A.); Re Kane (1939), [1940] 1 D.L.R. 390 at 397 (N.S. Co. Ct); St Ann’s Island, supra,
note 114 at 219.

12630 U.S. 9, 5 Pet. 1 at 17 (1831).
’27See, e.g., Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902); Lone Wolf v. Hitchcock,
187 U.S. 553 (1903); Choate v. Trapp, 224 U.S. 665 (1912); Lane v. Pueblo of Santa Rosa, 249
U.S. 110 (1919); United States v. Creek Nation, 295 U.S. 103 (1935); Shoshone Tribe of Indians
v. United States, 299 U.S. 476 (1937); United States v. Santa Fe Pacific Railroad Co., supra,
note 33; United States v. Alcea Band of Tillamooks, supra, note 33; United States v. Sioux
Nations ofIndians, supra, note 32; contra, see Beecherv. Wetherby, 95 U.S. 517 (1877); Seminole
Nation v. United States, 316 U.S. 286 (1942); see also Elk v. Wilkens, 112 U.S. 94 (1884);
United States v. Kagama, 118 U.S. 375 (1886); Choctaw Nation v. United States, 119 U.S. 1
(1886); United States v. Nice, 241 U.S. 591 (1916); United States v. Waller, 243 U.S. 452 (1917).

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courts the opportunity to profit from American judicial experience with
regard to the practical consequences of that duty.

C. Scope

A question arises as to whether the Crown’s fiduciary duty towards
Indians is general in scope, or limited to the surrender of Indian lands. At
first glance, the latter response seems indicated by Dickson J.’s repeated
relation of the fiduciary duty to the surrender requirement. 128 It might be
argued from this relation that Dickson J. intends the fiduciary duty to apply
only to surrenders of Indian lands. The better course appears to be simply
to acknowledge the awkwardness of Dickson J.’s inference of a general fi-
duciary duty from a specific item such as the surrender requirement. As
already seen, it is the general guardian relationship between the Crown and
the Indians, rather than the specific surrender requirement manifesting this
relationship, which appears to form the true basis of the Crown’s fiduciary
duty. If so, this duty applies not only to surrenders of Indian lands but to
relations in general between the Crown and the Indians.

Limited support for this view may be found in the recent judgment of
the Federal Court of Appeal in Kruger v. The Queen.129 There the federal
government had expropriated, in 1941 and 1944, two parcels of land in the
Penticton Indian Reserve No. 1 for the purposes of an airport. No surrender
was obtained for the first parcel, while the second was only surrendered two
years after the expropriation. The Appellant Indians claimed, among other
things, that, by pursuing its own rather than their interest in expropriating
their lands and by failing to compensate them adequately for this taking,
the Crown had breached its fiduciary duty towards them. The Federal Court
of Appeal was therefore called upon to consider the applicability of the

128Guerin v. The Queen, supra, note I at 376, 382-3 and 385.

The conclusion that the Crown is a fiduciary depends upon the further proposition
that the Indian interest in the land is inalienable except upon surrender to the
Crown. … The surrender requirement, and the responsibility it entails, are the
source of a distinct fiduciary obligation owed by the Crown to the Indians. “Indian
title” gives rise upon surrender to a distinctive fiduciary obligation on the part of
the Crown to deal with the land for the benefit of the surrendering Indians. ….
The nature of the Indians’ interest is therefore best characterized by its general
inalienability, coupled with the fact that the Crown is under an obligation to deal
with the land on the Indians’ behalf when the interest is surrendered. … In the
present appeal [the fiduciary duty’s] relevance is based on the requirement of a
“surrender” before Indian land can be alienated. .. . When, as here, an Indian Band
surrenders its interest to the Crown, a fiduciary obligation takes hold to regulate
the manner in which the Crown exercises its discretion in dealing with the land on
the Indians’ behalf.

129(18 March 1985), (EC.A.D.) [unreported].

1985]

COMMENT

Crown’s fiduciary duty, established in Guerin, to a case other than one of
surrender.

All three members of the panel held that the Crown’s fiduciary duty
applied. While Urie J. rejected the Appellant’s claim of breach of fiduciary
duty, he agreed that the Crown was under the same fiduciary duty towards
Indians when expropriating as when accepting a surrender of their lands:

[I]t is clear that what was said by Dickson J., in the Guerin case was related
to a fiduciary relationship in the context of that case, i.e., where there was a
surrender of Indian lands to the Crown on certain terms, which terms were
changed by the Crown without consultation with or approval by the Indians.
That is not the factual situation in the case at bar. Nevertheless, for the purposes
of this appeal, I am prepared to accept that the principle propounded by Dick-
son J. applies. When the Crown expropriated reserve lands, being Parcels A
and B, there would appear to have been created the same kind of fiduciary
obligation, vis-A-vis the Indians, as would have been created if their lands had
been surrendered. 130

Stone J. subscribed to Urie J.’s reasons and added:

The doctrine of fiduciary duty enunciated at the Supreme Court of Canada in
Dalbert Guerin et al. v. Her Majesty the Queen and The National Indian Broth-
erhood (November 1, 1984) will, of course, require elaboration and refinement
on a case-by-case basis. While the courts have not yet, to my knowledge, applied
the doctrine in a case like the present one, I think it is applicable even though
the circumstances are quite different from those of the Guerin case.’ 3′
Although he eventually dismissed the Appellants’ claim as statute barred,
Heald J. upheld the application of the Guerin doctrine of fiduciary duty to
the present case of expropriation:

I do not think, however, that what was said by Mr. Justice Dickson relative
to the fiduciary relationship existing between the Crown and the Indians can
be construed in such a way as to be authority for the proposition generally
that the fiduciary relationship arises only where there is a surrender of Indian
lands to the Crown. It is correct to note, as did Mr. Justice Urie, that those
comments were made by the learned Justice in the context of the facts of that
case which involved a surrender of Indian lands to the Crown upon certain
terms. However, Mr. Justice Dickson made the following comments at pages
41 and 42:

While the existence of the fiduciary obligation which the Crown owes to the
Indians is dependent on the nature of the surrender process, the standard
of conduct which the obligation imports is more general and more exacting
than the terms of any particular surrender. In the present case the relevant
aspect of the required standard of conduct is defined by a principle analogous
to that which underlies the doctrine of promissory or equitable estoppel.
The Crown cannot promise the band that it will obtain a lease of the latter’s

’30Ibid. at 31 of Urie J.’s reasons.
‘3’Ibid. at 3 of Stone J.’s separate opinion.

REVUE DE DROIT DE McGILL

[Vol, 30

land on certain stated terms, thereby inducing the band to alter its legal
position by surrendering the land, and then simply ignore that promise to
the band’s detriment: see, e.g., Central London Property Tust Ltd v. High
Trees House Ltd, [1947] 1 K.B. 130; Robertson v. Minister ofPensions, [1949]
1 K.B. 227 (C.A.).

In obtaining without consultation a much less valuable lease than that
promised, the Crown breached the fiduciary obligation it owed the band. It
must make good the loss suffered in consequence.

Accordingly, I think it clear that the fiduciary obligation and duty being dis-
cussed in Guerin would also apply to a case such as this as well and that on
the facts in this case, such a fiduciary obligation and duty was a continuing
one –
that is, it arose as a consequence of the proposal to take Indian lands
and continued throughout the negotiations leading to the expropriations and
thereafter including the dealings between the Crown and the Indians with
respect to the payment of the compensation to the Indians in respect to Parcels
A and B.132

In these reasons, Urie and Stone JJ. state that the Crown’s fiduciary
duty applies to expropriation as well as to surrender of Indian lands, but
they do not say why. Heald J. apparently founds this broadened application
upon the surrender requirement and the promissory estoppel stemming
from the surrender document in Guerin as well as upon the Crown’s pro-
posal, in the instant case, to take the Indians’ land. These seem, with respect,
rather precarious bases upon which to seat the broadened application of the
Crown’s fiduciary duty. A more secure basis may lie in the Crown’s historical
role of guardian towards the Indians. If this argument is sound, the Crown’s
fiduciary duty would apply to its relations in general with the Indians.

Other aspects of the scope of the Crown’s fiduciary duty may be inferred
from the Guerin and Kruger cases. As to lands, Wilson J. confines her
remarks in Guerin to reserve lands. She suggests, however, that the Crown
is under a fiduciary duty with regard not only to the surrender but to the
management and disposition of reserve lands. 133 Moreover, in that she at-
tributes the source of the Crown’s fiduciary duty to aboriginal title, 34 that
duty would seem to apply to “unrecognized”, aboriginal lands as well as to
“recognized”, reserve lands. This inference appears corroborated by Dickson
J., who says that the “Indian interest :.. is the same in both” traditional
tribal lands and reserve lands.’ 35

As to types of transactions, Kruger establishes that the Crown’s fiduciary
duty applies to expropriations as well as to surrenders. No reason appears,

1321bid. at 5-6 of Heald J.’s reasons.
133Guerin v. The Queen, supra, note 1 at 349-50.
1341bid. at 349.
13SIbid. at 379.

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CHRONIQUE DE JURISPRUDENCE

however, why this duty should not embrace any type of transaction between
the Crown and the Indians, at least with regard to lands.

As to parties, Guerin indicates that the fiduciary duty governs the Crown’s
dealings with third parites in relation to Indian lands. Kruger makes clear
that it also governs the Crown in dealings directly with the Indians, even
where third parties are not involved. Moreover, the Crown’s fiduciary duty
would appear to extend to all groups which are considered as Indians or
aboriginal peoples for the purposes of the Constitution. These groups would
include non-status Indians, M6tis, and Inuit, in addition to registered In-
dians. 136 The question as to whether the Crown’s fiduciary duty applies only
to aboriginal collectivities, or to native individuals as well, must await de-
termination by the courts. In principle, however, no reason appears why
native individuals should not be able to invoke the Crown’s fiduciary duty.jIt
has been argued above that, since the Crown’s fiduciary duty stems from
its general guardianship of the Indians, it applies to the Crown’s relations
in general with the Indians. Fundamental implications flow from this prop-
osition. For example, the Crown’s fiduciary duty would require it, at a
minimum, to give full effect to its undertakings under existing land claim
agreements such as the James Bay and Northern Quebec Agreement. Again,
the federal government would appear obligated to secure for native peoples
an adequate standard of subsistence, housing, health and education. As to
Canada’s own role in aboriginal and treaty claims, the doctrine of fiduciary
duty could be argued to compel the federal government both to negotiate
with, and to provide the necessary resources to, native peoples in order to
settle such claims. It would also seem to require the federal government not
to remain passive but to act positively on behalf of native peoples to settle
their aboriginal and treaty claims vis-a-vis recalcitrant provincial governments.

D. Nature

1. Trust v. Fiduciary Duty

In Dickson J.’s view, the Crown’s fiduciary obligation towards the In-
dians does not give rise to either an express, an implied or a constructive
trust. The principal impediment to the creation of an express or implied
trust, he argues, is that Indian title is not a property interest “which could
constitute the trust res, so that even if the other indicia of an express or
implied trust could be made out, the basic requirement of a settlement of

136ConstitutionAct, 1982, s. 35(2), Schedule B, CanadaAct 1982 (U.K.), 1982, c. 11. Reference
as to Whether the Term “Indians” in Head 24 of Section 91 of the B.N.A. Act, 1867, Includes
the Eskimo Inhabitants of the Province of Quebec (1939), [1939] S.C.R. 104.

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[Vol. 30

property has not been met”. 137 Similarly, the absence of any unjust enrich-
ment for the Crown in the present case prevents the creation of a construc-
tive trust. In the result, “[t]he Crown’s fiduciary obligation to the Indians
is … not a trust.”‘ 38

Wilson J. agrees with Dickson J. as to the existence of a general fiduciary
duty for the Crown arising out of Indian title and reflected in section 18 of
the Indian Act.’ 39 Unlike him, however, she feels that the surrender docu-
ment created an express trust for the Crown in the present case.’ 40 This
divergence can probably be explained by the fact that, unlike Dickson J.,
Wilson J. feels that Indian title is a property or beneficial interest sufficient
to constitute a trust corpus. For reasons explained earlier, Wilson J.’s view
in this respect appears preferable to that of Dickson J.

“Political” v. “True” Trust

In his judgment for the Federal Court of Appeal in Guerin, Le Dain J.
relied upon the English cases Tito v. Waddell (No. 2) 14 1 and Kinloch v.
Secretary of State for India142 to find that any trust-like obligation imposed
on the Crown by section 18 of the Indian Act or by the surrender was not
a “true” trust subject to the equitable jurisdiction of the courts but an
unenforceable “political” trust. 143 Two major factors prompted this finding.
First, Le Dain J. felt that the discretion conferred upon the Crown by section
18 was incompatible with an equitable obligation.144 Second, the Crown’s
responsibility regarding reserves was more governmental or public than
private in nature.’ 45

Both Dickson and Wilson JJ. distinguish the present from the political
trust cases on the basis of the independent nature of Indian title. Dickson
J. observes that

137Guerin v. The Queen, supra, note I at 386.
’38Ibid. at 386.
139lbid at 349-50.
140Ibid. at 355.
14](1976), [1977] 3 All E.R. 129, [1977] 2 W.L.R. 496.
142(1882), 7 App. Cas. 619 (H.L.).
143The expression “political trust” had already been used by Rand J. in St Ann’s Island,
supra, note 114 at 219 to describe relations between the Crown and Indians in Canada. He
wrote: “The language of the [Indian Act] embodies the accepted view that these aborigenes
[sic] are, in effect, wards of the State, whose care and welfare are a political trust of the highest
obligation.” Rand J. did not, however, use the term “political trust” in opposition to a “true
trust”. He viewed the Crowns political trust towards the Indians as entailing legal consequences
determinable in a court of law. For other references to the Crown’s “political trust”, see supra,
note 2.

144The Queen v. Guerin, supra, note 2 at 718.
I4sIbid. at 719.

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COMMENT

Indian title is an independent legal right which, although recognized by the
Royal Proclamation of 1763, nonetheless predates it. For this reason, Kinloch
v. Secretary of State for India in Council, supra; Tito v. Waddell (No.2), supra,
and the other “political trust” decisions are inapplicable to the present case.
The “political trust” cases concerned essentially the distribution of public funds
or other property held by the government. In each case the party claiming to
be beneficiary under a trust depended entirely on statute, ordinance or treaty
as the basis for its claim to an interest in the funds in question. The situation
of the Indians is entirely different. Their interest in their lands is a pre-existing
legal right not created by Royal Proclamation, by s. 18(l) of the Indian Act,
or by any other executive order or legislative provision. 146

Dickson J.’s reasoning seems to run along the following lines. The
interests claimed in the political trust cases were entirely dependent on the
governmental discretion embodied in the various instruments, whether treaty,
statute or executive order, underlying such claims. It is difficult to found a
true trust upon such a discretionary basis. In the present case, however, the
Indians’ claim rests in part upon their Indian title. Since this title is an
independent legal right, and does not depend upon governmental discretion
for its existence, it may well serve as the basis for an enforceable fiduciary
duty.

Wilson J. expresses the same view:

In all these [political trust] cases the funds at issue were the property of the
Crown (or, at least, as in Kinloch, supra,in the possession of the Crown) and
none of those laying claim to them as beneficiaries could show a right to share
in the funds independent of the treaty, statute or other instrument alleged to
give rise to an enforceable trust.

It seems to me that the “political trust” line of authorities is clearly dis-
tinguishable from the present case because Indian title has an existence apart
altogether from s. 18(1) of the Indian Act.147

In consequence, the independent legal character of the Indian title grounding
the Appellants’ claim renders the political trust cases inapplicable.

As to the discretion conferred by section 18(1) of the Indian Act upon
the Crown, and held incompatible with an equitable obligation by Le Dain
J., Dickson J. argues that “far from ousting, as the Crown contends, the
jurisdiction of the courts to regulate the relationship between the Crown
and the Indians, [it] has the effect of transforming the Crown’s obligation

146Guerin v.The Queen, supra, note 1 at 378-9.
‘471bid. at 351-2.

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into a fiduciary one”. 148 Moreover, he notes, the Crown’s discretion is con-
siderably narrowed by the conditions imposed in sections 18(1) and 38(2)
of the Indian Act.149 Wilson J. also draws attention to the qualifications set
by section 18(1) upon the Crown’s discretion.1 50 The Crown must exercise
this qualified discretion, not in an arbitrary way, but on proper principles
so as to secure its purpose, namely the use and benefit of the band. This
qualified discretion, she feels, is inconsistent with a mere political trust. The
courts will ensure that it is exercised in a way compatible with the Crown’s
fiduciary duty.

As to the distinction between public and private law duties, Dickson
J. again invokes the independent legal nature of Indian title to argue that
the Crown’s fiduciary duty is in the nature of a private law duty and thus
enforceable by the courts.

It should be noted that fiduciary duties generally arise only with regard to
obligations originating in a private law context. Public law duties, the per-
formance of which requires the exercise of discretion, do not typically give rise
to a fiduciary relationship. As the “political trust” cases indicate, the Crown
is not normally viewed as a fiduciary in the exercise of its legislative or ad-
ministrative function. The mere fact, however, that it is the Crown which is
obligated to act on the Indians’ behalf does not of itself remove the Crown’s
obligation from the scope of the fiduciary principle. As was pointed out earlier,
the Indians’ interest in land is an independent legal interest. It is not a creation
of either the legislative or executive branches of government. The Crown’s
obligation to the Indians with respect to that interest is therefore not a public
law duty. While it is not a private law duty in the strict sense either, it is
nonetheless in the nature of private law duty. Therefore, in this sui generis
relationship, it is not improper to regard the Crown as a fiduciary. 151
With respect, it is not clear that, as Dickson J. says, the independent
character of Indian title renders the Crown’s responsibility in its regard in
the nature of a private law duty. At first blush, this responsibility appears
more public than private. It addresses, not private individuals, but whole
groups or classes of persons. Further, it stems from essentially public rela-
tions between two categories of political society, Canada and the Indian
peoples.

It may be that the distinctions drawn by Le Dain J. between public and
private law duties and between “political” and “true” trusts compel Dickson
J. to assimilate the Crown’s responsibility towards the Indians and their
lands to a private law duty. But these distinctions need not be hard and
fast. As already seen, the American Supreme Court has long held the United

N4sIbid. at 384.
149Ibid. at 387.
150Ibid at 349-50.
15tlbid at 385.

1985]

CHRONIQUE DE JURISPRUDENCE

States to be under a fiduciary duty towards the Indian nations within its
borders. This duty, arising out of the peculiar political circumstances of the
two classes, has been seen as governed by public law. Nevertheless, the
Court has freely borrowed by analogy from the private law institution of
trusts to give practical effect to the United States’ public law fiduciary duty
towards the Indians. 152 Rather than attempting to categorize the Crown’s
fiduciary duty towards Indians as one of either public or private law, it may
prove more fruitful, and more faithful to the often anomalous nature of
relations between these two sets of actors, to adopt this hybrid approach
developed by the United States Supreme Court.

E. Effect

Although not a trust, strictly speaking, the Crown’s fiduciary duty has
the practical legal effect of one. Dickson J. notes that “[t]his obligation does
not amount to a trust in the private law sense. … If, however, the Crown
breaches this fiduciary duty it will be liable to the Indians in the same way
and to the same extent as if such a trust were in effect. 153 He continues:

–

The Crown’s fiduciary obligation to the Indians is therefore not a trust. To say
as much is not to deny that the obligation is trust-like in character. As would
be the case with a trust, the Crown must hold surrendered land for the use
and benefit of.the surrendering Band. The obligation is thus subject to principles
very similar to those which govetn the law of trusts concerning, for example,
the measure of damages for breach. 54

Thus the conditions of breach and the quantum of damages will be the same
for the Crown’s fiduciary duty as for a private law trust.

Wilson J. does not express any opinion on the legal effect of the Crown’s
fiduciary duty towards Indians and their lands, since, although she upholds
the principle of this duty, she finds the Crown in breach of a specific trust
created by the surrender document.15 5 Nevertheless, Wilson J.’s determi-
nation that the Crown’s fiduciary duty is an equitable obligation enforceable
by the courts suggests that its effects are to be defined by analogy with the
law of trusts.

152Sioux Nation, supra, note 32.
153Guerin v. The Queen, supra, note 1 at 376.
1541bid. at 386-7.
155Ibid. at 348-9, 354 and 362.

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III. Conclusion

A. Conflict of Interest

It may be asked whether the same rules of conflict of interest govern
the Crown’s fiduciary duty towards Indians as those which govern a trust.
The recent Federal Court of Appeal judgment in Kruger v. The Queen156
suggests an affirmative response. In that case, the federal government, acting
on the recommendation of the Department of Transport, expropriated two
parcels of the Penticton Indian Reserve No. 1 for the purposes of an airport.
The Appellants argued that the Crown was in conflict of interest since its
interest in expropriating the reserve lands ran counter to its fiduciary duty
to secure adequate compensation for the Penticton Indian Band in respect
of the expropriated lands.

The Kruger case squarely poses the question of the potential conflict
between the Crown’s special duty to the Indians and its general duty to the
public at large. This question arises with peculiar force in land claims ne-
gotiations where Canada assumes a dual role of protector of the native
peoples’ special interest and custodian of the public’s general interest.

In his majority reasons in Kruger, Urie J. “[a]ssum[ed], without decid-
ing, that the rules applying to conflicts of interest between trustees and their
cestuis que trust apply to fiduciaries”. 157 He then rejected the Appellants’
claim of conflict of interest for two reasons. First, the Indian Affairs Branch
officials concerned had, in their dealings with the Department of Transport,
vigourously advocated the views of the Penticton Indians. 158 Second, “the
Transport officials, too, owed a duty in the performance of their functions,
not a direct duty to the Indians, but a duty to the people of Canada as a
whole, including the Indians, not to improvidently expend their moneys”.159
Urie J. conceded that the Crown had “competing obligations” to the Indians
and to the general public. 160 Nevertheless, he felt that no conflict of interest
arose because “the Crown was in the position that it was obliged to ensure
that the best interests of all for whom its officials had responsibility were
protected. The Governor in Council became the final arbiter”. 16

Urie J.’s reasoning invites criticism on two grounds. First, the fiduciary
duty towards Indians and their lands is incumbent on the Crown as a whole,
not on any specific department or agency. The question of conflict of interest

156Supra, note 129.
157Ibid. at 33 of Urie J.’s reasons.
158Ibid. at 33-4.
1591bid. at 34.
160Ibid. at 41-2.
161Ibid. at 42.

1985]

COMMENT

601

must therefore be decided with reference to the conduct, not of any one
department, but of the entire federal government. Second, it seems difficult
to share Urie J.’s confidence that the Crown can resolve its competing ob-
ligations towards the Indians and the general public without becoming em-
broiled in a conflict of interest. These competing obligations may force the
Crown to choose, and such a choice is the essence of a conflict of interest.

These criticisms find support in the views of Heald J. in Kruger

Bearing in mind that it is the Crown which owes the fiduciary duty to the
Indians, the facts of this case clearly raise the issue of conflict of interest, in
my view. It seems evident that the two departments of the Government of
Canada were in conflict concerning the manner in which the Indian occupants
of Parcel A should be dealt with. The evidence seems to unquestionably es-
tablish that the officials of the Indian Affairs Branch were diligent in their
efforts to represent the best interest of the Indian occupants. On the other hand,
the Department of Transport was anxious to acquire the additional lands in
the interests of air transport. This situation resulted in competing considera-
tions. Accordingly, the Federal Crown was in a conflict of interest in respect
of its fiduciary relationship with the Indians. The law is clear that “… one who
undertakes a task on behalf of another must act exclusively for the benefit of
the other, putting his own interests completely aside” and that “Equity fash-
ioned the rule that no man may allow his duty to conflict with his interest.”
On this basis, the Federal Crown cannot default on its fiduciary obligation to
the Indians through a plea of competing considerations by different depart-
ments of Government. 62
Competing obligations do not, Heald J. states, necessarily place the
Crown in a conflict of interest. He suggests how such a conflict can be
avoided:

If there was evidence in the record to indicate that careful consideration and
due weight had been given to the pleas and respresentations by Indian Affairs
on behalf of the Indians and, thereafter, an offer of settlement reflecting those
representations had been made, I would have viewed the matter differently.163

With regard to the expropriation of reserve lands, this passage argues that
the Crown may fulfill its fiduciary duty to the Indians by offering them
compensation based on “careful consideration and due weight” to repre-
sentations made by Indian Affairs officials.

B. “Good Faith Effort” Test

Although phrased in rather more subjective terms, this standard appears
consistent with the “good faith effort” test in American case law. This test
was developed by the Court of Claims in Three Affiliated Tribes of Fort

162bid. at 21-2 of Heald J.’s reasons [references omitted].
163Ibid. at 46.

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[Vol. 30

Berthold Reservation v. United States, 164 and endorsed by the United States
Supreme Court in United States v. Sioux Nation of Indians.165 The test
was proposed … as a means of distinguishing between Congressional acts of
trusteeship and of eminent domain [towards Indians. It] holds that “[w]here
Congress makes a good faith effort to give the Indians the full value of the
land and thus merely transmutes the property from land to money, there is
no taking. This is a mere substitution of assets or change of form and is a
traditional function of a trustee.”

In determining whether Congress has satisfied the good faith effort test in
the discharge of its trusteeship duties, careful attention must be paid to the
historical record of Congress’ conduct and to the adequacy of the consideration
paid.166
This good faith effort test may assist the Canadian courts in the future
to decide whether, in cases of expropriation of Indians’ lands, the Crown
has discharged its fiduciary duty to them.

1-390 E2d 686 (1968).
165Sioux Nation, supra, note 32.
166J. Hurley, “Aboriginal Rights in Modem American Case Law” [1983] 2 C.N.L.R. 9 at 37

[footnotes omitted].

Crown's Fiduciary Duty and Indian Title: Guerin v. the Queen, The

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