The Crown as fiduciary and the conflict of interest inherent in its use of Indian lands for public purposes.

Abstract

This thesis examines the fiduciary relationship between the federal Crown and Indian bands arising under the Indian Act, and more particularly the obligations adhering to the Crown when it accepts surrenders of reserve lands for its own purposes. It begins with an analysis of the theoretical basis of the fiduciary relationship in private law, concluding that such a relationship arises whenever a person acquires a power or property subject to the condition that the power will be exercised, or the property used, to further the interests of another. The thesis then examines the source of the Crown/Indian fiduciary relationship, and concludes that the Indian Act requirement that a band contemplating an alienation of its lands must first transfer those lands to the Crown, and the corresponding discretion vested in the Crown in disposing of those lands on the band's behalf, supply the requisite conditions, in accordance with private law fiduciary principles, for establishment of an ongoing fiduciary relationship in respect of the alienation of Indian lands. The thesis then provides a detailed review of the rules applicable to conflict of interest by a fiduciary in private law, and concludes that the more stringent requirements applicable to conflict of interest by a fiduciary in private law should also be extended to the Crown where the Crown accepts surrenders of land, or deals with Indian assets, in a manner that ultimately benefits the Crown.