Loyalty and Distinctiveness: A New Approach to the Crown's Fiduciary Duty toward Aboriginal Peoples

Abstract

As a tool to protect the distinctive elements of Aboriginal cultures, the Supreme Court's current approach to s. 35 of the Charter has significant limitations. The judgments of the majority and of the minority in R. v. Mitchell illustrate these limitations, but also hint at the possibility of a fuller, more coherent protection of Aboriginal rights. This article argues that the Court should recognize that the Crown has a fiduciary duty to negotiate in good faith a "protected space" for those Aboriginal institutions necessary for cultural survival.