EQUITABLE COMPENSATION AS A TOOL FOR RECONCILIATION: REMEDYING BREACH OF FIDUCIARY DUTY FOR INDIGENOUS PEOPLES

Abstract

The doctrine of equitable compensation is often used to remunerate First Nations in claims of breach of fiduciary duty. While this has been the practice for years, the doctrine of equitable compensation remains unclear in its application to Aboriginal law, and lacks certainty as a tool to determine quantum of damages. As such, and given the Western liberalist context of the Canadian justice system, this article asks the following question: Can equitable compensation truly serve as a vehicle for remedying breach of fiduciary duty to Indigenous peoples? By critically analyzing the relevant case law around breach of fiduciary duty owed to First Nations, and identifying gaps in applying Indigenous legal concepts to Western legal practices, this article determines that equitable compensation is an inadequate tool to remunerate First Nations for their loss. This article also offers possible solutions to supplement the current legal system to incorporate Indigenous legal principles until full Indigenous selfgovernance is a reality.