Ottawa Law Review
Aboriginal title; Canada
To determine the extent to which Aboriginal title-holders enjoy control over Aboriginal title lands, it is necessary to explore fiduciary doctrine, for the application of this doctrine to the question of legislative infringement determines the limits within which Aboriginal title-holders can expect to see their interests respected. In Delgamuukw the Supreme Court of Canada adopted and applied an understanding of the Crown-Aboriginal fiduciary relationship it developed in Gladstone. In so doing the Supreme Court set out the power of Canadian governments to control the uses to which Aboriginal title lands can be put. Ironically, since Aboriginal title is characterized by the Court as exclusive in nature, the application of the Gladstone position significantly enhances the power of the Crown. The result is the creation of a judicial concept of Aboriginal title which on first reading might appear to hold out much promise to Aboriginal peoples struggling to meet sacred responsibilities vis-à-vis their lands, but which is actually impotent to slow the exploitation of.Aboriginal lands by Canadian governments and third parties acting under authority of Canadian governments. Clearly, then, Delgamuukw must be understood as a legal tool employed in continuing efforts to assimilate Aboriginal peoples into mainstream Canadian society.
Gordon Christie, "Delgamuukw and the Protection of Aboriginal Land Interests" (2000) 32:1 Ottawa L Rev 85.