Indigenous and Northern Affairs committee  I think it is addressing the proposition that though in a broad sense the crown may be in a fiduciary relationship with aboriginal peoples, it is only certain aspects of that relationship that give rise to fiduciary duties, notably where the crown is dealing with reserve land or the proceeds from the sale of reserve land, or other moneys of a band, for example.

Indigenous and Northern Affairs committee  Yes. I think I was saying that it is almost inevitable that policies will be developed. It is interesting that the court has said in the two B.C. cases from 2004—the Haida case and the Taku River case—that existing institutional arrangements, such as environmental assessment tribunals and tribunals of that sort, are quite in order as the institutional setting for consultation that would go forward.

Indigenous and Northern Affairs committee  I wouldn't think it would be a helpful statement in a broad sense. The crown's duty to deal honourably with aboriginal people is always at stake, and will continue to be at stake. It may be true, though, at the operational level. Naturally if you have aboriginal governments, which are taking over more and more responsibilities, and the department here is going to have less to do, one would expect it.

Indigenous and Northern Affairs committee  I don't think that particular passage in Wewaykum is addressing the hats problem, that the crown wears different hats.

Indigenous and Northern Affairs committee  The court will deal with cases as they come before it, and many of these are going to have to do with economic development. That's exactly what was going on in Haida and Take River, even.

Indigenous and Northern Affairs committee  Yes.

Indigenous and Northern Affairs committee  The references we had to the honour of the crown in Canadian cases having to do with aboriginal peoples prior to 1982 were in dissenting reasons. Actually, in 1982, in the Ontario Court of Appeal, the Taylor and Williams case—

Indigenous and Northern Affairs committee  I think if you analyze that case you'll see that the approach of Justice Gwynne was rejected by the majority. He did, along the way, say that the honour of the crown is engaged in respective treaties. It was a treaties case. It was a fight between Canada and Ontario.

Indigenous and Northern Affairs committee  The establishment of policy by—

Indigenous and Northern Affairs committee  The federal government and all governments in Canada are going to be constantly responding to what the Supreme Court of Canada hands down. In the course of carrying out its regular activities, I think it's almost inevitable with the federal government—again, the discussion you had on October 8—that across the various departments, notably in aboriginal affairs and northern development, there are going to be policies and then more detailed practices.

Indigenous and Northern Affairs committee  I should probably get out more, because I'm not sure about the specific proposals and documents you're talking about. Clearly the concept of the honour of the crown and this duty of consultation and accommodation opens up a rich avenue for aboriginal peoples when there is a proposal to develop land in the vicinity, the traditional lands of aboriginal peoples.

Indigenous and Northern Affairs committee  Yes, well that's a task for your committee, I suppose: to hold their feet to the fire.

Indigenous and Northern Affairs committee  I don't think I can comment very helpfully on the working out of the B.C. treaty process and the B.C. treaty commission, and so forth. I think the Government of Canada and the Government of British Columbia read these cases; they know there is a duty on the crown to negotiate treaties where they don't yet exist.

Indigenous and Northern Affairs committee  The honour of the crown is at the heart of it. That's why the crown must be at the table.

Indigenous and Northern Affairs committee  What sui generis means is “unique”. So what the court is saying is when we look at these rights—these aboriginal rights, treaty rights—don't have in mind common law, or civil law property rights, or contract rights, or torts, or anything we've known before. This is a new ball game.