UDTR Global Rights of Nature Radar

A fiduciary theory for the review of Aboriginal rights

Identification

Public canonical key

openalex:w282466349

Authors

Phil Lancaster

Reported year

1990

Reported language

en

Source type

dissertation

First detected

2026-11-09T19:04:47.945400+00:00

Last metadata observation

2026-11-09T19:04:47.945400+00:00

Last HTTP verification

Not checked

Documentary abstract — original language

This thesis takes as its focus R. v. Guerin, [1984] 2 S.C.R. 335 and seeks to assess its possibilities as the source of a legal principle to guide the constitutional review of the aboriginal and treaty rights protected by s. 35 of the Constitution Act, 1982.In Chapter 1, the decision and the commentary to which it gave rise is discussed. Chapter 2 reviews the history of the law of aboriginal rights with a particular focus on the Indian law of the United States. Chapter 3 reviews Canadian Native law with a particular stress on the trust obligation. In Chapter 4 the language of trusts is reviewed and the influence of International law is canvassed. After a brief discussion of fiduciary law, the chapter closes with a suggested basis for a constitutional fiduciary principle. Chapter 5 opens with a discussion of s. 35 of the Constitution Act, 1982. The theory is then proposed.The theory would find its origin in the common law recognition of the precontact sovereignty of the aboriginal peoples and its denial by the colonizing nation at the time of colonization. The assumption of legislative power by the Crown came with an obligation, acknowledged by the Crown, that it must use its legislative power so as to protect and promote the interests of the aboriginal peoples in order to assist them through the process of colonization. It is suggested that s. 35 of the Constitution Act, 1982 may have made that obligation justiciable and may require the courts to check the exercise of its legislative power to make certain that any negative effect on the aboriginal peoples is justified. The standard, being a fiduciary one, would be high.The thesis closes with an application of the theory to some past and present issues in Native law.

Identifiers

OPENALEX

W282466349

HANDLE

10388/etd-06222007-104227

Documentary context

Documentary family

Thesis

Source-reported types

dissertation

Entity mentions are not evidence of legal recognition. Jurisdiction studied is separate from author affiliation country.

Sources

OpenAlex · Record 1 · Record 2 · Record 3

• Document · http://hdl.handle.net/10388/etd-06222007-104227
• Handle · https://hdl.handle.net/10388/etd-06222007-104227
• OpenAlex · https://openalex.org/W282466349

Documentary status

Relevance pending

Library

This identity is not yet included in the Legal Library.