Supreme Court of Canada Expands on the Honour of the Crown in Manitoba Métis Federation Inc. v Canada (Attorney General)

Back in 1869, present-day Manitoba’s Red River Settlement was a lively Métis community that was growing and developing while, further East, the country of Canada was in its infancy. After Upper and Lower Canada (Ontario and Quebec, respectively), Nova Scotia and New Brunswick combined to create Canada in 1867, John A. Macdonald set his sights on westward expansion. England agreed to turn over Rupert’s Land to Canada, making Canada the new owner of the Red River Settlement.

Macdonald would quickly find that the Métis of Red River would not be willing to give up their sovereignty and land without a fight. When surveyors came to visit the Red River Settlement in 1869, the famous Métis leader Louis Riel led his people in a rebellion that made it quite clear that Canada would need to negotiate with the Métis in order to expand. The Métis drafted a list of demands that Canada would have to satisfy before the Red River settlers would accept their control. Representatives were sent to Ottawa to negotiate with Macdonald, which led to the enactment of the Manitoba Act, 1870, which made Manitoba a province of Canada and included in s. 31 a grant of 1.4 million acres of land to the children of Métis families and in s. 32 a recognition of existing land holdings.

From Historic Statutes to Modern Litigation

Despite this promise on behalf of the Canadian government that the process of allocating land to the Métis children would be “expedient”, the process was marred by years of mistakes and delays. It is this delay that led to the litigation and Supreme Court of Canada (SCC) decision in Manitoba Métis Federation Inc. v Canada (Attorney General), 2013 SCC 14.

In this case, the Manitoba Métis Federation and 17 individual applicants sought a declaration that:

1. In implementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis;
2. The federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown; and
3. Certain legislation passed by Manitoba affecting the implementation of the Manitoba Act was ultra vires  (para 7)

This quest for declaratory relief gave rise to five main issues (the sixth issue, whether other statutes dealing with the implementation of the s. 31 land grant were ultra vires, was not dealt with significantly, as the legislation had long since been repealed):

1. Does the Manitoba Métis Federation have standing in the action?
2. Is Canada in breach of a fiduciary duty to the Métis?
3. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act?
4. Is the claim for a declaration barred by limitations?
5. Is a claim for a declaration barred by laches?

The majority decision, written by McLachlin CJ and Karakatsanis J, dispenses with the first and second issues fairly quickly and without much controversy from the dissent, written by Rothstein J on behalf of himself and Moldaver J.

The Issues of Standing and Fiduciary Duty

With regard to standing, which both the trial judge and Manitoba Court of Appeal did not grant to the Manitoba Métis Federation (“MMF”), the majority notes that the lower levels of the court did not have the decision in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, to work from. As that case rejects a strict approach to the requirement that public interest standing should only be given if there is not another reasonable and effective manner for the case to be heard, noting instead that the requirements for public interest standing be addressed in a flexible and generous manner. As the case at hand represents a collective claim for declaratory relief, the majority notes that the body that represents the collective Métis interest – the MMF – should be given standing.

As for the claim that Canada breached a fiduciary duty to the Métis in failing to expediently allot the land set out in s. 31 of the Manitoba Act, the majority (like the lower level decisions) does not find that a fiduciary relationship existed in the circumstances of this case. As per the principle from Guerin v The Queen, [1984] 2 SCC 335, a fiduciary duty can arise in the Aboriginal context when the Crown administers lands or property in which Aboriginal peoples have an interest. There must be:

1. A specific or cognizable Aboriginal interest, and
2. A Crown undertaking of discretionary control over that interest.

The majority notes that the Crown definitely undertook discretionary control over the granting of land through ss. 31 and 32 of the Manitoba Act. The issue is whether there the Métis had a specific Aboriginal interest in the land. In order for there to be an interest that founds a fiduciary duty, it must be a communal Aboriginal interest that is integral to the nature of the Métis distinctive community and their relationship to the land. While the Métis argued that s. 31 confirmed that they held a pre-existing Aboriginal interest in the land as the grants were made specifically to extinguish their title, the majority finds that the Métis interest in the land was individual in nature and therefore resulted “from their personal history, not their shared Métis identity” (para 56). Thus, no fiduciary duty existed.

The issues that do the work in this case, and constitute the divergence between the majority and dissenting opinions, are the honour of the Crown and the effect of limitation periods and the doctrine of laches on the claim.

The Honour of the Crown

The majority begins by outlining the basic principles surrounding the concept of the honour of the Crown. As was set out in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, the honour of the Crown arises from the assertion of sovereignty over Aboriginal people and the control of land and resources that were formerly under their control. The purpose of the honour of the Crown is to reconcile pre-existing Aboriginal societies with this assertion of Crown sovereignty.

The honour of the Crown is a “heavy obligation”, and not all interactions between the Crown and Aboriginal peoples engage the concept. The Court notes that the honour of the Crown has been found to be engaged in 4 situations:

1. When the Crown assumes discretionary control over a specific Aboriginal interest
2. In s. 35 Charter cases, the duty to consult arises when Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest
3. The honour of the Crown governs treaty-making and implementation, leading to requirements such as honourable negotiation and avoidance of appearance of sharp dealing
4. The honour of the Crown requires Crown to act in way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples

Notably, the majority finds that “when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown:

1. Takes a broad purposive approach to the interpretation of the promise; and
2. Acts diligently to fulfill it” (para 75).

Thus, the honour of the Crown requires that the Crown must diligently carry out its promises, and also “endeavour to ensure its obligations are fulfilled” (para 79). This arises both in treaty and constitutional contexts.

This case represents the first time this “duty of diligent implementation” has been recognized as compromising part of the honour of the Crown. In Rothstein J’s dissenting opinion, he argues that it is not acceptable for the majority to decide the case on this new cause of action, as neither the courts below or the parties argued it. However, the majority states that this concept does not represent a new cause of action, but is rooted in the honour of the Crown, which both the parties argued as the heart of the case.

As s. 31 represented a constitutional promise to the Métis, the honour of the Crown is engaged. The question then became whether the Crown acted with diligence in pursuing the fulfillment of the purposes of their obligation to distribute the s. 31 lands to Métis children. The majority concludes that the Crown did not, as the distribution of the land was delayed without satisfactory explanation. While the majority notes that one negligent act would not be enough to offend the honour of the Crown, “a persistent pattern of inattention may do so if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained” (para 107).

In conclusion, the majority finds that:

“The honour of the Crown required the Crown to interpret s. 31 in a purposive manner and to diligently pursue fulfillment of the purposes of the obligation. This was not done…the implementation was ineffectual and inequitable. This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade. A government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.” (para 128)

Limitations and Laches

As so much Aboriginal law litigation rests on historical considerations, the Court’s discussion of the application of limitation periods and the doctrine of laches to Aboriginal issues is interesting, though this case seems to represent a lack of clarity as to when exactly limitation periods or laches will be applicable to Aboriginal cases.

The majority notes that the constitutionality of legislation has always been a justiciable question which cannot be barred by limitations statutes. As the dissent rightly points out, the Métis are not asking for the Court to rule on the constitutionality of legislation, but instead are seeking a declaration that s. 31was not implemented in accordance with the honour of the Crown. The majority seems to say that because the Métis are not seeking any personal relief, damages, or title to land, the limitations act cannot bar the claim. It remains to be discussed whether, if an Aboriginal group were seeking these things, a limitations period could bar the claims.

The contentious aspect of the majority’s decision that a statutorily enacted limitation period cannot bar the claim goes to the often-debated question of the role of the courts versus the legislature. The majority clearly believes that the judiciary’s role as the interpreters of the constitution trumps the legislature. In a particularly telling passage, they state that:

“What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied…The courts are the guardians of the Constitution and…cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter.” (emphasis added, para 140)

Stating that the court “cannot be barred by mere statutes” is controversial – it sidesteps the usual rhetoric of deference to the legislature, which the dissent takes real offence to.

The majority also finds that the equitable doctrine of laches, which essentially stands for the proposition that a claimant must bring their claim to the courts without undue delay, does not apply to the case at hand. To use this doctrine as a defence to a claim, it must be shown that the claimant both acquiesced or took action to waive their rights, and that this action made the other party think the claimant had given up their rights. The majority finds that given the historical injustices suffered by the Métis, the imbalance in power that followed Crown sovereignty and the negative consequences following delays in allocating the land grants, acquiescence or waiver cannot be found.

In conclusion, the Métis were partially successful in their appeal. The majority granted the Métis a declaration

“[t]hat the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870, in accordance with the honour of the Crown” (para 154).

What does this mean for Métis people in Manitoba? As is noted earlier in the decision, in some cases, “declaratory relief may be the only way to give effect to the honour of the Crown”. It is possible that this declaration may be used by the Métis in future negotiations with the government. As a larger contribution to the jurisprudence surrounding Aboriginal rights, this case represents an interesting expansion of the concept of the honour of the Crown that will potentially help future Aboriginal rights claimants bring forward claims.