From Wardship to Rights: Behind the ScenesPosted: Wednesday, June 10, 2020
Written by Jim Reynolds
I am pleased to have an opportunity to bring attention to my new book, From Wardship To Rights: The Guerin Case and Aboriginal Law, just published by UBC Press. This desire, no doubt, is due in large part to author vanity. However, there is a much more important reason to bring attention to the book. It tells the story of how a small First Nation, the Musqueam Band, on whose land the Vancouver campus of UBC is located, successfully took on the federal government in a David and Goliath contest. Acting mainly through an Indian Agent, an ex-residential school principal, the government leased for 75 years over a third of the Band’s small reserve to the exclusive Shaughnessy Golf Club on terms different from those approved by the Band members and then concealed the lease from the Band. When the Band members discovered the lease in 1970 due to the determination of Delbert Guerin, the chief, they took legal action which led in 1984 to a decision of the Supreme Court of Canada that the government had breached its fiduciary duty to them. This finding of a breach of fiduciary duty was new in the law. It changed the relationship between governments and indigenous peoples from one of wardship to one based on legal rights. It has been described as a seismic decision and it was recently followed by the Supreme Court of New Zealand. As noted by UBC professor Mary Ellen Turpel-Lafond (Aki-Kwe), the actions of the Musqueam people and the Guerin family changed the course of law and policy to the benefit of all First Nations peoples. I thought that was a story that was worth telling.
The Guerin case shows that, with determination, Indigenous people can overcome some of the historical disadvantages under which they have struggled for too long and achieve some, although incomplete, measure of justice. In the process of seeking justice for themselves, the Musqueam brought about fundamental improvements in the way the Canadian legal system deals with the rights of all Indigenous peoples. In rejecting the government’s argument that the Musqueam could not enforce its obligations to them in the courts (the “political trust” argument), the Supreme Court of Canada strengthened the legal protection provided to all Canadians against the wrongdoings of governments. In this way, the case provides an example of how the law (despite its primary role as supporting the established order including colonialism) can “move us incrementally towards a just society” to quote Tom Berger, the Father of modern Canadian Aboriginal law.
The book forms part of the UBC Press Landmark Cases in Canadian Law series but I hope it appeals beyond a legal audience. It is as much about history and politics as law and tells an important story. It seeks to investigate and explain the forces that led to two key events: (1) the signing of the Lease in 1958 and (2) the decision of the Court in 1984. The former event was a direct result of the history of the British Empire, not just in Canada but around the world. Canada was very much part of “the British World” and adopted negative attitudes and policies towards Indigenous peoples common throughout the Empire (although it had failed to follow reforms in “native administration” adopted elsewhere to prepare for independence which was not, and is not, an option for Indigenous peoples in Canada). The imperial legacy was still very evident on that fateful day when the lease was signed. Reflecting the wardship nature of the relationship, the lease was signed by the government and the Club but not the Band, and the government refused to provide a copy of the lease to the Band for several years.
Delbert Guerin, photo by Don Bain, Union of BC Indian Chiefs, January 5, 2013
The decision in 1984 also reflected social and political forces that had developed in Canada by then. Indigenous groups had pushed back against the colonial mentality that saw them as a “problem” that had to be solved by loss of their rights through assimilation. They had obtained recognition of existing treaty and aboriginal rights through constitutional changes in 1982 but the provision was vague (an “empty box”) and it was not clear if and how these “rights” would be enforced by the courts. The recognition in Guerin and subsequent cases that the rights of Indigenous peoples could be legally enforced and protected in the courts and were not merely “political” and unenforceable was key to providing the necessary substantive protection that the politicians had failed to provide.
Taken together, these two events make Guerin an instructive case study to show (1) the continuing impact of colonial thinking on Indigenous peoples, which viewed them as wards whose lives and property had to be managed by colonial administrators until they could be assimilated into Canadian society, and (2) the modern and developing law on Aboriginal rights that commenced in the 1970s and of which the decision in Guerin was an important part. It was about more than technical legal doctrine and represented a major development in the political character of the relationship between non-Indigenous peoples as represented by their government and Indigenous peoples. That relationship was first based on treating Indigenous peoples as warriors and necessary allies. It changed in the early nineteenth century when conflicts with other countries ended and British authorities had acquired effective control. The former allies were then reduced in the eyes of the colonial authorities to child-like “wards of the state” without enforceable rights. The Guerin case was an important step in again recasting the relationship from one of wardship to one of enforceable rights by rejecting the long-held view that any obligations owed by the non-Indigenous governments were political in nature and could not be legally enforced. This was a major and permanent change in Canadian law, politics and society.
I was a member of the Musqueam legal team and subsequently became their general counsel for many years until my recent retirement. I am pleased to be able to tell a small part of their long history and their contribution towards the development of Aboriginal law in Canada (which includes another landmark case – the Sparrow case – which celebrates its 30th anniversary this year). I wrote about that law in Aboriginal Peoples and the Law: a Critical Introduction published by UBC Press/Purich in 2018. The new book is dedicated to Delbert Guerin, the chief who fought so hard for justice, and his family. I regard him as both a friend and a teacher. John Ralston Saul described Delbert as “one of the great figures of contemporary Canada. … We owe him a great deal.” I agree and the book was written in recognition of that fact.
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