A friend on my FB today shared a link relating to a personal diary of a government official, where he recorded personal accounts of treaty negotiations. Click here to read the article.
This article is the essence of what I have been trying to say to people around me relating to First Nations and the Canadian Government and their use of the term “fiduciary.” The part in the article that sticks out to me is, “ The government thinks it has the final say. These treaty diaries suggest otherwise.”
Sometimes when I read an article about the lack of government consultation with First Nations and their resources, sometimes I see the word “fiduciary.” This word is used in a sense that the government has a fiduciary relationship with the First Nations. First Nations leaders sometimes say: “But the government and the First Nations have a fiduciary relationship!”
A fiduciary relationship is one where it involves trust, one with a beneficiary and one with a trustee when looked up in a regular dictionary. However, last year, I did some further research into the term fiduciary and what outlines the power one has over another.
What I found: as a fiduciary, one can make decisions that they see best fit for the non-fiduciary. This meaning (in simplest way possible): if the government thinks it knows what is best for the First Nations, they can and will make that decision without their consent because they have the “power” based on that they think they know what is best and it is in the best interest for the fiduciary (because as a fiduciary they have a legal responsibility over the non-fiduciary). Simply put, and the way I see it, is that the government, as a fiduciary, will make decisions without First Nations’ consent. They will make these decisions because it is the government’s knowledge that they know what is best because they have an “interest” in First Nations. This interest is only for the benefit of the government and the rest of Canada (which sometimes fails to include the interest of First Nations).
This what I think that makes using this term quite difficult for First Nations.
Here are some questions I think of when I see this term and read about Canadian Government/First Nations dealings. Based on the basic dictionary definition: Who, in the relationship between government and First Nations, is the beneficiary and who is the trustee? Do we really trust one another? Also, if one is allowed to make a final decision without input from another because they feel that they are the ones that know what is best: how does one determine who knows what is best for one or the other? The case that this term was defined in will most likely continued to be referenced if and when Canadian Government/First Nations dealings land in court. Meaning, First Nations need to stop using this word in their defence. Hopefully, the discovery of this personal diary will be able to help assist First Nations in situations where Governments fail to consult or receive consent.
Nevertheless, terms like these that are used in the dealings with the Canadian Government and First Nations need to be changed, if First Nations really want to move forward. When First Nation leaders keep using this term and making reference to this term in their own defence, and having legal cases defining what a fiduciary really is, severely limits the First Nations rights and the items they agreed to during creation and signing of treaties.