Duty of Government and Fiduciary Responsibility
Duty of Government and Fiduciary Responsibility
The First Nations peoples of Canada had undergone through marginalization and separation from all aspects of government functions without recognition over a period of three centuries. Issues such as trauma, language, well-being, politics and the law had not been exclusively given the importance it deserved on the three aboriginal groups. However, deliberate changes and examination of the past deeds helped in transformation of how the First Nations were viewed and valued. The courts had a big impact on the changes realized as emphasis was enshrined in the constitution giving the First Nations a voice and level of importance in the country’s stature. The principle of fiduciary and the court system have helped foster a better relationship between the First Nations and the government.
Government duty had not been based on moral duty to the First Nations; rather, it was only viewed as means to bring about peace and reduce chances of the conflict. The author points out that, “security and interests of the government towards the colonies and the tribes of the Indians were not to be molested, disturbed or deprived of their hunting grounds.” I believe that this was a deliberate process of the government to silence the First Nations from claiming sovereignty against other settlers. It should be noted that the lands could not be put into negotiations between the locals and the settlers in terms of gaining any monetary value. The crown had marked the initial steps of alienation.
Existence of the aboriginal rights had been silenced by the highest authorities of the land. Considerations on long-standing cases that had lasted more than 60 years had been seen as the obstacle towards realization of the aboriginal rights. I agree with the author on the impact that the Nisga’a case had on the existence of the rights. Six of the seven judges believed on the existence and this facilitated a rethink of the rights by legislators, politicians and bureaucratic heads. I agree that such a stand was important for the protection and realization of the rights with the help of the constitution. It would have been difficult for the aborigine people to obtain the constitutional protection since they had never signed any treaty with the federal government.
Fiduciary concept was instrumental for the characterization of the relationship between the First Nations and the federal government on a legal sense. According to the author, the concept is common as of today since, “the trustee is given high regard towards loyalty and autonomy as concerns the beneficiary”. At first, the government acted out on denial to an obligation of trust relationship with the First Nations. The government deliberately avoided the inclusion of third party status in order not to recognize the First Nation’s interest. It seems that, at the initial basis, the trust relationship could not be forthcoming. I think that it was due to the failure of the first nation to recognize the value of the holding land they possessed.
Prior to the act of the constitution in 1982, it is stated that the government had on several occasions tried to extinguish rights of the aborigines. I feel and agree with the author that the court made significant changes to the government’s efforts towards the rights of the aborigine. The government had to conduct tests, which proved that they were justified to infringe on the rights of the first nation. It was critical to absolve the court and legal procedures from any blame as regards the execution of coverage of the fiduciary concept along with treaty rights. Moreover, it strengthened the need for the court to conduct involved consultations before making of the decisions as challenged by either side. The outcome reduced the crown’s influence on interest of the First Nation.
Through the changes achieved in the rights recognition, the governance structures of the First Nation communities hold some small differences. Some instances have witnessed the use of hereditary processes of the decision-makers of the community. The government’s influence cannot be underestimated. The provision of a structure, which reflects a single template, is utilized. In my own opinion, this is derived from the necessary changes that were realized at the onset fro acceptance of the aborigine rights. It has distanced he uniformed decentralization, which in most cases is not well accepted by the people in terms of participation. The cultural match in governance helps in acceptance of legitimacy.
The impact of action and inaction from the government towards the First Nation people from the past years had a negative aspect. The refusal to recognize the rights of the three aboriginal groups was barely meant to enhance peace instead of legitimizing their presence in the land. However, with the changes and action of the court system through constitutional means, the trend was changed. The First Nation peoples’ rights were recognized and protected by the fiduciary responsibility by the crown. In conclusion, the efforts made have improved the governance, participation and relationships between the two parties.