The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Article Title

The Geography of the Crown: Reflections on Mikisew Cree and Williams Lake


In this article, we argue for the importance of the geographic underpinnings of the concepts of “the Crown”, the “honour of the Crown”, “fiduciary duty”, and the “duty to consult” in cases concerning Aboriginal title and rights in Canada. Recent decisions, including Williams Lake (2018) and Mikisew Cree (2018), while further developing and refining these concepts, continue to skirt around the fundamentally geographic issue of territorial sovereignty. We argue that both political and legal discussions fail to recognize fully how the honour of the Crown, fiduciary duty, and the duty to consult arise from this geographical basis, rather than from a legal or abstracted definition of the Crown. More than a bounded space or a specific site, territory is a strategic process of settler-colonial statecraft, in which the law is a constitutive instrument in the unmaking and remaking of territory. The concepts of the Crown, its honour and its duties are not exempt from this process.