Duhaime's Law Dictionary


Honour of the Crown Definition:

A phrase of Canadian aboriginal law in reference to the sometimes generous attitude the law takes to the definition of aboriginal rights.

Related Terms: Indian Canon

In Haida Nation, Chief Justice McLaughlin wrote, at ¶16-19 and ¶25:

"The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

"The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.

"The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty....

"The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of sharp dealing....

"Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties.... The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests."

In R v Lefthand, Justice Slatter of the Alberta Court of Appeal used these words at ¶75:

"The generous attitude the law takes to the definition of aboriginal rights is sometimes summarized by the phrase honour of the Crown.

"This phrase was used first in passing in pre-Charter cases .... It was originally contrasted with sharp dealing, but evolved into a more generalised concept.... While it is a helpful way of summarizing the common law assumptions about aboriginal rights, it is not of much help in resolving specific issues about specific rights. The term honour, especially when used in the phrase honour of the Crown has an absolute, moralistic and inflexible connotation, which does not accommodate the type of balancing and evolution of ideas, rights and concepts that is required in constitutional jurisprudence. This phrase can lead to conclusory reasoning and results oriented jurisprudence if applied directly to legal issues."

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