Open AccessLoyalty and Distinctiveness: A New Approach to the Crown's Fiduciary Duty toward Aboriginal Peoples
Author(s) -
Michael Coyle
Publication year - 1969
Publication title -
alberta law review
Language(s) - English
Resource type - Journals
eISSN - 1925-8356
pISSN - 0002-4821
DOI - 10.29173/alr1343
Subject(s) - fiduciary , optimal distinctiveness theory , duty , charter , law , negotiation , faith , duty of loyalty , supreme court , loyalty , political science , sociology , law and economics , psychology , theology , philosophy , psychotherapist
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.