Tansi Nîtôtemtik,
Today we dive back into our evaluation of the TRC Calls to Action with Call to Action #51, which states:
We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.[1]
In order to better evaluate this Call to Action, let’s first look at what is meant by the fiduciary responsibility of the Government of Canada towards Aboriginal and Treaty rights.
Historically, the Government of Canada (the Crown) has taken responsibility for the protection of Indigenous peoples and their rights, which stems from the fact that Indigenous peoples are the original inhabitants of Canada.[2] This special relationship has been recognized since the Royal Proclamation of 1763, and places obligations on the Crown to act in the best interests of Indigenous peoples and exercise their power with “loyalty and care.”[3] The fiduciary responsibility remains a central element of the relationship between the Crown and Indigenous peoples.
Therefore, when it comes to the scope and extent of Aboriginal and Treaty rights, the Crown has an obligation to act in the best interests of Indigenous peoples. Call to Action #51 recognizes that to fulfill their fiduciary duty, transparency is required when the Crown makes decisions about Aboriginal and Treaty rights. Typically, these legal opinions would be considered confidential, but as central stakeholders, the Indigenous peoples being impacted by these decisions have a right to know the legal opinions that the Crown intends to act upon before reaching the court.[4]
(Photo credit: Queen’s University Journal, https://www.queensjournal.ca/story/2018-10-15/editorials/supreme-court-denies-indigenous-peoples-treaty-rights/)
Unfortunately, little progress has been made regarding Call to Action #51. The confidentiality associated with legal opinions can be voluntarily waived by the Crown, but it is not mandatory. The Department of Justice released Guidelines for Civil Litigation involving Indigenous Peoples, which prioritizes reconciliation and respect for the Aboriginal and Treaty rights, (which are also protected under section 35 of the Constitution Act) but there is no specific requirement for transparency in these guidelines.[5]
The need for a policy of transparency when it comes to constitutionally protected rights, especially where the Crown has a fiduciary duty to do so, is extremely important. The larger goal of Call to Action #51 is equity for Aboriginal people in the legal system, which will require transparency in legal proceedings. But this policy of transparency has not been adopted by our government. For this reason, we are assigning a failing grade.
Until next time,
Team ReconciliAction YEG
1Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015.
2Kent McNeil, “Fiduciary Obligations and Aboriginal Peoples." in The Law of Trusts: A Contextual Approach, 2nd ed. (Toronto: Emond Montgomery, 2008) at 908-909.
3Ibid at p.907-908; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 SCR 344 at para 38.
4CBC News, "Beyond 94: Truth and Reconciliation in Canada” (Dec 14, 2020) online: <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=51>.
5Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf>.
