41. RETHINKING THE “HONOUR OF THE CROWN” PRINCIPLE

Honour – a clear sense of what is morally right. – Oxford English Dictionary

Fiduciary law in Canada, particularly in respect of the Crown’s relationship with Aboriginal peoples, is a very dynamic area of Canadian law. The nature and extent of the particular obligations that may arise out of this relationship are matters that are largely unsettled in the jurisprudence. -Nordheimer J. Brown v. Canada (Attorney General) 1

The just and proper obligations of the Canadian Crowns i.e. the Canadian people through their federal and provincial governments, to act honourably towards Canada’s Indians are based generally on the fiduciary obligations towards them that arose on the part of Canada as the result of the historical facts and circumstances leading up to the treaty-making era, the making of the treaties themselves, and the relationship of general Indian dependency and reliance which has tragically persisted since then.

The best and only way to end this tragic relationship of dependence and reliance is to end the  now obviously-failed and in effect dishonourable manner in which the Crown fiduciary-honour obligations towards our Indian peoples has historically and is presently being undertaken.

Presently, and with a view to a better future, the proper and effective fulfillment of the Crown honour principle mandates that our governments do everything they can to end the reservation system and special race-based rights and entitlements for Canada’s Indians.

As reiterated by the Ontario Divisional Court in Brown v. Canada, above, (“Brown“), this fiduciary obligation, honourably and admirably originally imposed on the federal Crown by itself, (See Great Britain- A Conqueror With a Conscience above) and then subsequently affirmed by the courts as a central obligation on all of Canada’s governments, exists because, according to our courts; firstly, when the treaties were made, Canada undertook to act responsibly and in the bests interests of the Indians it dealt with; secondly, the Indians were extremely vulnerable to Canada’s huge, discretionary power over them; and thirdly, because anything Canada did in exercise of this discretionary power would substantially affect their rights and interests.

The Ontario Divisional Court’s above referred-to  Brown decision re-states this, and further emphasizes the “dynamic“, “undeveloped and fluid” nature of our federal and provincial governments’ fiduciary-honour obligations towards our Indian peoples- obligations that are always varying with the nature of the Indian right or interest in question.

Haida Nation, like Brown,  said that the principle of the “honour of the Crown” was a fundamental principle governing the relations between the Crowns of Canada and Canada’s Indians, arising as it did out of the relationship of inequality and dependency between the federal Crown and our Indian peoples  that existed at the time the treaties were signed, and from the perpetual trust reposed in the Crown by Indians in those circumstances.

Evidencing this, as related above in relation to the signing of the treaties, were the frequent references to the mother-child relationship existing between them, with the Crown being the “Great Mother” and the parleying Indians her “children.”

Haida Nation also laid down the principle that the treaties are living documents, which, consistent with the honour of the Crown, must be interpreted generously and in the modern context, always taking into account current social and economic circumstances. Brown, by implication, does the same, with its use of such terms as “dynamic”, “fluid”, and “unsettled”, all terms implying the notion of change and adaptation, and implying that there is not necessarily only one way, carved in stone, for our governments to carry out these fiduciary-honour obligations.

It follows that, just as treaties should be interpreted, and re-interpreted, in light of prevailing and ever-changing social and economic circumstances,  so also should the Crown fiduciary-honour principle be subject to a changing interpretation and a changing application in accordance with the ever-changing, dynamic and fluid facts on the ground- in accordance with ever-changing modern circumstances.

What is honourable Crown conduct in one era may not be so in another, which, I argue,  is clearly the present case here. The operation of the status quo, even with all the new rights and entitlements for Indians that have been added to it, is not working, and never will.

The status quo is dishonourable. It’s condemning our Indian peoples to continued and further poverty, dependency and despair. It’s enriching a few at the expense of the many. It’s civically immoral in conception and effect.

And  the other very negative effects of it – the diminution of Crown sovereignty, the diminishment of the rule of law and the damage to our economy – severely harming the vast majority of Indians as much as non-Indians- constitute further reasons why the present manner in which the Crown fiduciary-honour principle is being interpreted, applied and carried out must be radically changed.

One main root of the problem is that Canada’s Indians have so much provided for them by the Canadian taxpayer for which they have to do little or nothing to receive other than being born an Indian, that they have no real incentive to undertake any serious efforts to improve their condition, to become free, independent and, in the civic sense, full “adult” participants in the Canadian experience.

I assert that for Indians to “master their task” they need to “grow up.” But because of the way the Crown honour principle is being interpreted and applied they have no need to do this. Applying the Queen-parent-child analogy, they have no incentive, even though they’re “adults in years,” to leave their “Mother’s” house and try to make their own way in the world. They’re still living in the basement long after they should have left home. This is the “Queen Mother’s” – i.e. Canada’s – fault as much as anyone’s, because the reserve system and the Indian Act presume a merely child-like civic status being afforded Indians.

But nonetheless, moving forward, it can’t be denied that it’s the poignant duty of every parent to raise her children in such a way that they will leave home – that they will want and be able to leave home.

A parent sadly but proudly knows he’s done a good job when his child permanently leaves the nest and sets up and lives independently on his own.

Canada, the technically-legal parens patriae of all Indians, has, despite it’s honourably-intended past efforts, essentially failed in its parental duty to properly raise and prepare Indians to be willing and able to live in the real world on their own – to leave home. It has made the basement too comfortable to want to leave. The children are afraid to leave. In this, Canada, albeit for understandable reasons, has been a rather weak and ultimately neglectful parent.

William Wuttunee, a mighty, great tree of public morality who put his small-minded enemies in the shade and left them to wither, 2almost 50 years ago, in Ruffled Feathers, was eerily prescient in this regard. He wrote:

There must be a sense of adulthood by the non-Indian people who are administering programs relating to Indians. Weak “love” or pity for Indian people is not going to improve their lot.  There must be hard-headed programs designed to increase the participation of Indians in a non-Indian society. Sociologists and anthropologists can’t spend their time in apologizing for Indian people, thereby encouraging an ethnic division which will perpetuate the problem for several more generations. Their studies must be done from a positive point of view, rather than by re-affirming a separation of the two races. There is certainly something good to be said about the value of people living together peacefully, mutually, for the benefit of one another. It is time to blast the arguments against integration and to speak in favour of it. (italics added)

So Canada needs to take a deep breath, resolve to toughen up, and begin making plans to, one gentle but firm way or another, over time, in measured fashion, get her Indian children out of the basement and out of the home altogether. And, with respect to the 600,000 new Indian-status aspirants created by the Supreme Court of Canada’s Daniels decision, (see Treaties- Fairly Made and Honourable Implemented, above), and, with respect to the August, 2019 action of the Trudeau government to create several hundred thousand more “instant Indians”, (see The Treaties-Fairly Made and Honourably Implemented, above), Canada should, by all legal measures active and passive, prevent them altogether from entering this parents’ basement of learned helplessness.

Therein lies the ultimate salvation for us all.

Therein lies the carrying out of true, honourable, adult, parental duty and responsibility. Therein, in this modern era, lies the true path and manner for our governments to justly and properly carry out their fiduciary-honour obligations to our Indian peoples.

The justification for this course of remedial action is even stronger in Tsilhqot’in and UNDRIP-affected parts of Canada, like British Columbia. 3 The Indian bands which inhabit these areas of the country, now claim, based on aboriginal title, virtual legal equality with- in some instances even legal supremacy over- our federal and provincial governments. As the Nemiah Declaration4 demonstrates, they’re moving to regulate and even prohibit hitherto Crown-authorized commercial and recreational uses on their lands, which are now essentially former public lands.

They’re saying in effect to their (former?) non-Indian fellow citizens: As newly-declared owners of this land we will now control what takes place on it. And, by the way, you no longer naturally belong here. And further by the way, your laws don’t apply here and we can ignore them at our discretion. This was essentially the legally reasonable position of the Wet’suwet’en hereditary chiefs in their blockade of the Coastal GasLink pipeline in early 2020.

These Indigenous groups are professing to be quite independent, quite in control and thus no longer vulnerable to the discretionary power of non-Indian governments, federal and provincial.

And Indian vulnerability has always been key to the continued existence and operation of the Crown fiduciary-honour principle.

Thus, by operation of law, and by their own words and actions, they are eroding the “vulnerability” rationale for the continued application of the Crown fiduciary-honour principle to them. So as  their power, control, and independence increases, so should the application to them of the Crown fiduciary-honour principle decrease, as should the transfer monies and substantial other benefits that go along with it.

This important consideration applies as well to non-Tsilhqot’in and non-UNDRIP areas of Canada, particularly in situations where Indian bands have achieved significant financial benefits as the result of the exercise and exploitation of their “consult and accommodate” danegeld rights and powers.

But, in any event, the primary rationale for re-thinking, re-interpreting and differently applying the Crown fiduciary-honour principle remains based on common sense and what is morally right, not from parsing legal cases.

The honour of the Crown demands that after all this failed time Canada start treating its Indians like civic adults, and hold them to adult standards. Ultimate respect for and true concern for the welfare of Indians demands it.

Thus the Crown honour principle needs to be revisited, re-thought and re-applied in such a way that Canada starts to treat Indians, like a responsible parent would, not in accordance with what her Indian “children” subjectively want, but in accordance with what they objectively need in order to become self-supporting, civically-engaged adults.

The application of the Crown honour principle should not encourage or create a state of permanent, civically-infantile dependency, as it presently does.

Therefore, considering Haida Nation, and Brown, and thus applying a principled, nuanced and contextual approach to the Crown honour principle, a dynamic and fluid approach, one must conclude that in today’s modern Canadian social and economic circumstances it would be honourable Crown conduct – conduct akin to that of a caring, responsible and far-seeing parent exercising proper care and regard for an increasingly dependent child heading down the wrong path in life – conduct having regard to the best interests of Indians – conduct having regard to our classically liberal values – to end the reserve system and race -based special rights and entitlements for Indians – the root cause of why Indians are still suffering so greatly today.

Only by doing so will Canada’s Indians be able to get out of their debilitating state of dependency and be brought into the mainstream of Canadian life as true civically-adult equals.

  1. 2014 ONSC 6987, Ontario Divisional Court. This procedural ruling is one of several that followed the first of such rulings in this marathon case, discussed in Assimilation and Cultural Loss, above.
  2. This apt image describing Goethe from Safranski, Goethe, Life as a Work of Art
  3. See the discussion of this case in Dances With Danegeld, above.
  4. See Dances With Danegeld, above.

By: Peter Best