This thesis takes as its focus R. v. Guerin, [1984] 2 S.C.R. 335 and seeks to assess its possibilities as the source of a legal principle to guide the constitutional review of the aboriginal and treaty rights protected by s. 35 of the Constitution Act, 1982.<p>In Chapter 1, the decision and the commentary to which it gave rise is discussed. Chapter 2 reviews the history of the law of aboriginal rights with a particular focus on the Indian law of the United States. Chapter 3 reviews Canadian Native law with a particular stress on the trust obligation. In Chapter 4 the language of trusts is reviewed and the influence of International law is canvassed. After a brief discussion of fiduciary law, the chapter closes with a suggested basis for a constitutional fiduciary principle. Chapter 5 opens with a discussion of s. 35 of the Constitution Act, 1982. The theory is then proposed.<p>The theory would find its origin in the common law recognition of the precontact sovereignty of the aboriginal peoples and its denial by the colonizing nation at the time of colonization. The assumption of legislative power by the Crown came with an obligation, acknowledged by the Crown, that it must use its legislative power so as to protect and promote the interests of the aboriginal peoples in order to assist them through the process of colonization. It is suggested that s. 35 of the Constitution Act, 1982 may have made that obligation justiciable and may require the courts to check the exercise of its legislative power to make certain that any negative effect on the aboriginal peoples is justified. The standard, being a fiduciary one, would be high.<p>The thesis closes with an application of the theory to some past and present issues in Native law.

This thesis takes as its focus R. v. Guerin, [1984] 2 S.C.R. 335 and seeks to assess its possibilities as the source of a legal principle to guide the constitutional review of the aboriginal and treaty rights protected by s. 35 of the Constitution Act, 1982.<p>In Chapter 1, the decision and the commentary to which it gave rise is discussed. Chapter 2 reviews the history of the law of aboriginal rights with a particular focus on the Indian law of the United States. Chapter 3 reviews Canadian Native law with a particular stress on the trust obligation. In Chapter 4 the language of trusts is reviewed and the influence of International law is canvassed. After a brief discussion of fiduciary law, the chapter closes with a suggested basis for a constitutional fiduciary principle. Chapter 5 opens with a discussion of s. 35 of the Constitution Act, 1982. The theory is then proposed.<p>The theory would find its origin in the common law recognition of the precontact sovereignty of the aboriginal peoples and its denial by the colonizing nation at the time of colonization. The assumption of legislative power by the Crown came with an obligation, acknowledged by the Crown, that it must use its legislative power so as to protect and promote the interests of the aboriginal peoples in order to assist them through the process of colonization. It is suggested that s. 35 of the Constitution Act, 1982 may have made that obligation justiciable and may require the courts to check the exercise of its legislative power to make certain that any negative effect on the aboriginal peoples is justified. The standard, being a fiduciary one, would be high.<p>The thesis closes with an application of the theory to some past and present issues in Native law.

This thesis examines the practice of accommodating irregular migrant children in Canadian public schools, specifically, public schools in Toronto, Ontario. Estimates indicate that there are close to 500,000 irregular migrants in Canada; half are thought to be living in the City of Toronto. Since the early 1990s there have been several novel policy developments in Ontario that have facilitated access to public schooling for irregular migrant children. This project seeks to identify the normative ideas that have been appealed to by public authorities in the policy development process. First, a critical review is undertaken of theoretical justifications developed in moral and political theory for extending schooling rights to irregular migrant children in liberal states. Then, arguments put forward by public authorities in Canada for extending or limiting schooling rights are analysed and compared with the dominant normative frameworks in the theoretical literature. This research finds that public authorities at the sub-state level made use of normative arguments that fall outside common theoretical approaches in moral and political theory. Normative arguments at the sub-state level are found to cohere with a fiduciary conception of public authority. It is argued that fiduciary theory provides a systematic and innovative theoretical framework for understanding the normative ideas appealed to by public authorities in practice. Moreover, fiduciary theory makes available the normative resources necessary to provide a strong way of conceptualising the duty of public authorities to educate irregular migrant children. This research contributes both to theoretical scholarship aimed at understanding and conceptualizing obligations to irregular migrant children, and also to the field of Canadian Studies, by contextualizing the policy response to irregular migrant children in Canada over time, demonstrating how specific policy responses reflect shifting normative understandings about belonging, government obligation, national culture(s) of citizenship, and the scope of provision of social welfare services to irregular migrant children.