Moving beyond the fiduciary duty

 

By John Beaucage
Grand Council Chief
Anishinabek Nation

Many years ago, when I first became involved in First Nations political issues, I kept hearing the term “fiduciary duty” when talking about our relationship with the Crown. Like many laymen, I had no idea what fiduciary meant, so of course I looked it up. What I found was this:Fiduciary – (noun) a person to whom property or power is entrusted for the benefit of another;
Of, or pertaining to the relationship between fiduciary and his or her principal: a fiduciary capacity; a fiduciary duty.
Relating to of the nature of a legal trust (i.e. the holding of something in trust for another): “a fiduciary contract”; “in a fiduciary capacity”; “fiduciary power”

Essentially, the definition of fiduciary is “a person to whom property or power is entrusted for the benefit of another.”  Children or the elderly typically need a fiduciary.  The fiduciary looks after the assets of another and is expected to act in the best interest of the person whose assets they are protecting.  This is known as “fiduciary duty.”
How has this concept translated for First Nations? By imposing the Indian Act upon us, and virtually controlling our lives for more than 100 years, the Government of Canada became a de facto fiduciary. However, I would argue that the Indian Act itself has breached Canada’s fiduciary obligations.

This same Indian Act, supposedly created to look after our best interests, would not even allow us to obtain legal advice when dealing with the government or others on treaty negotiations or land claims.  The Indian Act prohibited lawyers from charging fees to an Indian or an Indian band, which was an effective way to prevent First Nations from obtaining legal counsel.  The prohibition remained in effect right up until 1951.

Decisions were made for us about governing our own community affairs, educating our children, and obtaining health care for our elders. The Indian Act has dictated outside control over every aspect of our lives for many, many years. It still includes a requirement for First Nation governments to get approval from Ottawa to permit them to authorize spraying of noxious weeds in their communities.

The concept of the federal-First Nation fiduciary relationship dominated Native affairs debates for two thirds of the last century. Indians were regarded, in effect, as wards of the Crown.  The whole idea of fiduciary duty was encapsulated in our relationship with the federal government.

As I became more involved with the political process and looked at other aspects of the meaning of fiduciary, other insights presented themselves.
“The fiduciary looks after the assets of another and is expected to act in that person’s best interests.” This aspect of the definition certainly falters when trying to apply it to First Nations issues.
The main reason that treaties were instituted was, in fact, to find a legal way to exploit our lands and resources.  The reason for the Indian Act was to control, subjugate, and colonize Indians. Our best interests were not seen as a high priority at all.

In fact, if there was a legal way to get rid of Indians in Canada, that would be the preferable way to move forward as far as Canada was concerned, hence the government’s 1969 White Paper which proposed to eliminate our unique treaty and aboriginal rights.
To our credit, since the 1960s, First Nations citizens have become more politically astute.  Our past leaders fought well to preserve our rights.  Through the work of the Union of Ontario Indians, the National Indian Brotherhood and others, we fought for and achieved constitutional recognition. We also have legal precedents that confirm our rights. Today, there are several meaningful self-government agreements in place and over 80 more being negotiated throughout Canada.
Our own Anishinabek Nation Restoration of Jurisdiction process represents the largest self-government table in Canada. On Feb. 16 the Honourable Jim Prentice, Minister of Indian and Northern Affairs, wrote his signature beside mine to signify an agreement-in-principle on core governance principles after a decade of negotiations on behalf of our 42 communities across Ontario.

We talk about our Nation-to-Nation, Government-to-Government relationship with Federal and Provincial governments.  Yet despite all of this momentum and political awareness, we still cling to the sacred fiduciary relationship, a failed concept that has done us great disservice.

By its very nature a fiduciary duty must end at some point. A parent-child relationship changes, and at some point it reverses itself in terms of duty of care. 

But let US be the first to talk about ending the fiduciary relationship on our terms.  Let us talk about the contractual relationship that has been brought about by the treaties.  Let us negotiate  fiscal equalization transfers that are our due because of resources taken from our territories. The provinces discuss equalization payments all of the time with the federal government and so now do many of the country’s larger cities. These are contractual and business relationships, certainly nothing to be ashamed of; we are not demeaning our governments or ourselves by entering into these types of discussions. 

Only we should be responsible for our futures and ourselves. To cling to the concept of maintaining a fiduciary relationship is like saying we want a “safety net”.
That is not being self-sufficient or self-reliant. In order for self-government to be a reality, the concept of fiduciary duty must perish in order to give life to our aspirations for our children’s futures and strong First Nations governments.

We must begin to take steps to get beyond the fiduciary duty. We must begin to ask ourselves: do we need to be dependant on the Government of Canada?  Are they really working in the best interests of our people?

We must look toward sovereignty, success and self-sustainability.  These are the keys to true self-government and true self-determination.

John Beaucage is Grand Council Chief of the Anishinabek Nation, a political confederacy of 42 First Nations whose traditional territories are located in present-day Ontario.

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