Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Supreme Court of Canada (McLachlin, CJ; LeBel; Fish; Abella; Rothstein; Cromwell; Moldaver; and Karakatsanis, JJ.)

The Supreme Court of Canada held that the Honour of the Crown requires constitutional provisions relating to Aboriginal people to be fulfilled with diligence. It accordingly found that the Federal Government had failed to implement a provision of the Manitoba Act relating to land grants for Métis children in accordance with the Honour of the Crown.

The Manitoba Métis Federation (“MMF”) and 17 individual plaintiffs launched an action in 1981 alleging that the Federal and Manitoba Governments had acted unconstitutionally in the implementation of the Manitoba Act, S.C. 1870, c. 3.  Ultimately, their lawsuit sought declarations 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.

In particular, the MMF asserted that the Federal Crown had failed to properly implement sections 31 and 32 of the Manitoba Act. Section 31 had promised that 1,400,000 acres (approximately 1/7 of the then area of Manitoba) would be granted to the children of Métis heads of families. Section 32 had promised that secure titles would be issued to persons who had received grants from the Hudson’s Bay Company or who had occupied lands in the Red River Settlement before the transfer to Canada.

The Defendants argued that they had acted in accordance with their legal obligations; and that, in any event, the MMF’s claim was barred by limitations of actions statutes or the doctrine of laches. They also challenged the standing of the MMF to act as a plaintiff.

Standing of the MMF

The Defendants did not take issue with the private interest standing of the individual plaintiffs, but argued that the MMF had no private interest in the litigation and failed to meet the established test for public interest standing set out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236. The existence of individual plaintiffs clearly demonstrated that there was another reasonable and effective manner for the case to be pursued. The Trial Court and the Manitoba Court of Appeal had denied the MMF standing on that basis.

The Supreme Court of Canada noted that the courts below had not had the benefit of the SCC’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society,2012 SCC 45, [2012] 2 S.C.R. 524, where a strict approach to no-alternative-means requirement for standing had been rejected.  The Court added:

[44]      … [T]he action advanced is not a series of claims for individual relief. It is rather a collective claim for declaratory relief for the purposes of reconciliation between the descendants of the Métis people of the Red River Valley and Canada. The Manitoba Act provided for individual entitlements, to be sure. But that does not negate the fact that the appellants advance a collective claim of the Métis people, based on a promise made to them in return for their agreement to recognize Canada’s sovereignty over them. This collective claim merits allowing the body representing the collective Métis interest to come before the court. We would grant the MMF standing.

Breach of Fiduciary Duty

The Supreme Court found that there had been no breach of fiduciary duty on the part of the Crown, because no fiduciary duty had arisen in relation to the lands referenced by sections 31 and 32 of the Manitoba Act.

The Court acknowledged that the relationship between the Métis and the Crown, viewed generally, was fiduciary in nature, but cautioned that not all dealings between parties in a fiduciary relationship were governed by fiduciary obligations. The Court observed that in the Aboriginal context, a fiduciary duty might arise when the Crown assumed discretionary control over specific Aboriginal interests, with the focus on the particular interest that is the subject matter of a dispute.

The Court found that the Métis could not meet this test because they lacked a specific or cognizable interest in the lands. It explained:

[53]           The fact that the Métis are Aboriginal and had an interest in the land is not sufficient to establish an Aboriginal interest in land. The interest (title or some other interest) must be distinctly Aboriginal: it must be a communal Aboriginal interest in the land that is integral to the nature of the Métis distinctive community and their relationship to the land: see R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, at para. 37. The key issue is thus whether the Métis as a collective had a specific or cognizable Aboriginal interest in the ss. 31 or 32 land.

The MMF argued strenuously that this question was incontrovertibly answered by the words of section 31 of the Manitoba Act itself which stated the purpose of the land grant as follows:

And whereas, it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents … .
[Emphasis added].

The Court found however, that these words, even though found in a constitutional document, did not determine the question.  The burden still remained upon the Plaintiff to prove a communal Aboriginal interest, and that burden, the Court concluded, had not been met:

[56]           The trial judge’s findings are fatal to the Métis’ argument. He found as a fact that the Métis used and held land individually, rather than communally, and permitted alienation. He found no evidence that the Métis asserted they held Indian title when British leaders purported to extinguish Indian title, first in the Settlement belt and then throughout the province. He found that the Red River Métis were descended from many different bands. While individual Métis held interests in land, those interests arose from their personal history, not their shared Métis identity. Indeed the trial judge concluded Métis ownership practices were incompatible with the claimed Aboriginal interest in land.
 
[57]           The Métis argue that the trial judge and the Court of Appeal erred in going behind the language of s. 31 and demanding proof of a collective Aboriginal interest in land. They assert that Aboriginal title was historically uncertain, and that the Crown’s practice was to accept that any organized Aboriginal group had title and to extinguish that title by treaty, or in this case, s. 31 of the Manitoba Act.
 
[58]           Even if this was the Crown’s practice (a doubtful assumption in the absence of supporting evidence), it does not establish that the Métis held either Aboriginal title or some other Aboriginal interest in specific lands as a group. An Aboriginal interest in land giving rise to a fiduciary duty cannot be established by treaty, or, by extension, legislation. Rather, it is predicated on historic use and occupation.
[Emphasis added].

Being unable to establish a communal Aboriginal interest in land, the Court considered whether a fiduciary duty might have been created by an undertaking on the part of the Crown.  In that regard the Court concluded:

[62] While s. 31 shows an intention to benefit the Métis children, it does not demonstrate an undertaking to act in their best interests, in priority to other legitimate concerns, such as ensuring land was available for the construction of the railway and opening Manitoba for broader settlement. Indeed, the discretion conferred by s. 31 to determine “such mode and on such conditions as to settlement and otherwise” belies a duty of loyalty and an intention to act in the best interests of the beneficiary, forsaking all other interests.
 
[63] Nor did s. 32 constitute an undertaking on the part of the Crown to act as a fiduciary in settling the titles of the Métis landholders. It confirmed the continuance of different categories of landholdings in existence shortly before or at the creation of the new province … and applied to all landholders … .

Métis assertion of the existence of a fiduciary duty was thus rejected, and the claim of a breach of such duty accordingly failed.

The Contours of the Honour of the Crown

The majority of the Supreme Court of Canada found that the Federal Government had failed to maintain the Honour of the Crown in its implementation of section 31 of the Manitoba Act.  Justices Rothstein and Moldaver dissented on this issue.

In an extensive discussion of the concept of the Honour of the Crown the majority made a number of points:

  • The Honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people” (para. 66)
  • In Aboriginal law, the Honour of the Crown goes back to the Royal Proclamation of 1763 (para. 66)
  • The Honour of the Crown is not a paternalistic concept (para. 66)
  • The ultimate purpose of the Honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty (para. 66)
  • The Honour of the Crown thus recognizes the impact of the “superimposition of European laws and customs” on pre-existing Aboriginal societies (para. 67)
  • Historical treaties were framed in an unfamiliar legal system, and negotiated and drafted in a foreign language.  The Honour of the Crown characterizes the “special relationship” that arises out of this colonial practice (para. 67)
  • The Honour of the Crown imposes a heavy obligation, and not all interactions between the Crown and Aboriginal people engage it. In the past, it has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty (para. 68)
  • The Honour of the Crown is engaged by s. 35(1) of the Constitution (para. 69)
  • Because of its connection with s. 35, the Honour of the Crown has been called a “constitutional principle” (para. 69)
  • The Honour of the Crown is also engaged by an explicit obligation to an Aboriginal group that is enshrined in the Constitution. (para. 70)
  • The Constitution is not a mere statute; it is the very document by which the Crown asserted its sovereignty in the face of prior Aboriginal occupation (para. 70)
  • an explicit obligation to an Aboriginal group placed in the Constitution engages the Honour of the Crown at its core. (para. 70)
  • An analogy may be drawn between a constitutional obligation to Aboriginal people and a treaty promise. An “intention to create obligations” and a “certain measure of solemnity” should attach to both. (para. 71)
  • Constitutional obligations to Aboriginal people are made for the overarching purpose of reconciling Aboriginal interests with the Crown’s sovereignty. (para. 71)
  • In order to engage the Honour of the Crown, a constitutional obligation must be explicitly owed to an Aboriginal group. (para. 72)
  • The Honour of the Crown will not be engaged by a constitutional obligation in which Aboriginal peoples simply have a strong interest. Nor will it be engaged by a constitutional obligation owed to a group partially composed of Aboriginal peoples. (para. 72)
  • The Honour of the Crown “is not a mere incantation, but rather a core precept that finds its application in concrete practices” and “gives rise to different duties in different circumstances” (para. 73)
  • The Honour of the Crown is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled. (para. 73)
  • The Honour of the Crown has been applied in at least four situations:
    1. when the Crown assumes discretionary control over a specific Aboriginal interest the Honour of the Crown gives rise to a fiduciary duty;
    2. when the Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest the Honour of the Crown gives rise to a duty to consult;
    3. in treaty making and treaty implementation, the Honour of the Crown governs and requires honourable negotiation and the avoidance of the appearance of sharp dealing, among other things; and
    4. in relation to treaties and statutory grants to Aboriginal peoples, the Honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of such treaties and statutory grants.  (para.73)
  • What constitutes honourable conduct will vary with the circumstances. (para. 74)
  • In 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. (paras. 75; 77)
  • The Honour of the Crown demands that s. 35(1) be interpreted in a generous manner, consistent with its intended purpose and extends to yet unproven rights to land (para.76)
  • A purposive approach to interpretation informed by the Honour of the Crown applies to treaty obligations (para. 76)
  • An honourable interpretation of an obligation cannot be a legalistic one that divorces the words from their purpose. (para. 77)
  • The Honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests. (para. 78)
  • If the Honour of the Crown is pledged to the fulfillment of its obligations, it follows then that the Honour of the Crown requires the Crown to endeavour to ensure its obligations are fulfilled.  This duty applies whether the obligation arises in a treaty or in the Constitution. (para. 79)
  • Not every mistake or negligent act in implementing a constitutional obligation to an Aboriginal people brings dishonour to the Crown. Implementation, in the way of human affairs, may be imperfect. (para. 82)
  • The Honour of the Crown does not constitute a guarantee that the purposes of the promise will be achieved, as circumstances and events may prevent fulfillment, despite the Crown’s diligent efforts. (para. 82)
  • A persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown’s duty to act honourably in fulfilling its promise. (para. 82)

The majority concluded its discussion of the general concept of the Honour of the Crown by stating:

[83]      The question is simply this: Viewing the Crown’s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of the obligation?

In dissent, Mr. Justice Rothstein, speaking for himself and Justice Moldaver, argued that this was not an appropriate case to expand the common law concept of the Honour of the Crown.  Rothstein J. was particularly concerned about the ambiguity in the majority’s reasons as to when the new duty of diligent fulfillment would apply:

[205]       In order to trigger this new duty of diligent fulfillment, there must first be a “solemn obligation”. But no clear framework is provided for when an obligation rises to this “solemn” level such that it triggers the duty of diligent implementation. Furthermore, the majority reasons are unclear as to what types of legal documents will give rise to solemn obligations: Is it only provisions in the Constitution or does it also include treaties? In para. 75, the majority appears to restrict their conclusion on diligence to constitutional obligations to Aboriginal peoples. But, in para. 79, they note that the duty applies whether the obligation arises in a treaty or in the Constitution.

[207]       The idea that certain sections of the Constitution should be interpreted differently or should impose higher obligations on the government than other sections because some of these sections can be analogized to treaties is novel to say the least. I reject the notion that when the government undertakes a constitutional obligation, how it must perform that obligation depends on how closely it resembles a treaty.

The dissenters were also concerned that the substitution of “Honour of the Crown” for “fiduciary duty” would significantly expand Crown liability:

[208]       Setting aside the issue of what types of legal documents might contain solemn obligations, there is also uncertainty in the majority’s reasons as to which obligations contained in those documents will trigger this duty. My colleagues assert that for the honour of the Crown to be engaged, the obligation must be specifically owed to an Aboriginal group. While I agree that this is clearly a requirement for engaging the honour of the Crown, this alone cannot be sufficient. As the majority notes, in the Aboriginal context, a fiduciary duty can arise as the result of the Crown assuming discretionary control over a specific Aboriginal interest. Reducing honour of the Crown to a test about whether or not an obligation is owed simply to an Aboriginal group risks making claims under the honour of the Crown into “fiduciary duty-light”. This new watered down cause of action would permit a claimant who is unable to prove a specific Aboriginal interest to ground a fiduciary duty, to still be able to seek relief so long as the promise was made to an Aboriginal group. Moreover, as the majority acknowledges at para. 108, this new duty can be breached as a result of actions that would not rise to the level required to constitute a breach of fiduciary duty. This new duty, with a broader scope of application and a lower threshold for breach, is a significant expansion of Crown liability.

Was the Honour of the Crown an Issue in this Case?

The dissenters also questioned whether this was an appropriate case in which to apply the concept of the Honour of the Crown or to import a diligence standard into that concept.  Rothstein J. pointed out that references to the Honour of the Crown were absent from the pleadings, and only cursorily dealt with in argument.  He added:

[212]       Delineating the boundaries of new legal concepts is prudently done with the benefit of a full record from the courts below and submissions from both parties. Absent these differing perspectives and analysis by the courts below, it is perilous for this Court to embark upon the creation of a new duty under the common law. I believe this concern is manifestly made apparent by the ambiguity in the majority reasons about what legal documents can give rise to solemn obligations.
 
[213]       Moreover, it is particularly unsatisfactory to impose a new duty upon a litigant without giving that party an opportunity to make submissions as to the validity or scope of the duty. This inroad on due process is no less concerning when the party to the proceedings is the government. As a result of the majority’s reasons, the government’s liability to Aboriginal peoples has the potential to be expanded in unforeseen ways. The Crown has not had the opportunity to address what impact this new duty might have on its ability to enter into treaties or make commitments to Aboriginal peoples. It is inappropriate to impose duties on any party, including the government, without giving that party an opportunity to make arguments about the impact that such liability might have. In the case of the government where the new duty is constitutionally derived and therefore cannot be refined or modified through ongoing dialogue with Parliament it is of very serious concern.

The majority responded that the concept of the Honour of the Crown was implicitly at the heart of this case, and pointed to the fact that it had explicitly been referred to by the MMF in argument and by two of the interveners.  They added:

[88]      … [A]ll parties understood that the issue of what duties the honour of the Crown might raise, apart from a fiduciary duty, was on the table, and all parties presented submissions on it.
 
[89]           It is true that the Métis and the interveners supporting them did not put the argument in precisely the terms of the reasons. While they argued that the government’s conduct in implementing s. 31 did not comport with the honour of the Crown, they did not express this alleged failure in terms of failure to comply with a duty of diligent implementation. However, this was implicit in their argument, given that the failure to diligently implement s. 31 lay at the heart of their grievance.
 
[90]           For these reasons, we conclude that it is not inappropriate to consider and resolve the question of what duties the honour of the Crown gave rise to in connection with s. 31 of the Manitoba Act, not just as they impact on the argument that the government owed a fiduciary duty to the Métis, but more broadly.

Did the provisions of the Manitoba Act engage of the Honour of the Crown?

The majority had no difficulty in concluding that section 31 of the Manitoba Act engaged the Honour of the Crown:

[91]      … Section 31 conferred land rights on yet-to-be-identified individuals — the Métis children. Yet the record leaves no doubt that it was a promise made to the Métis people collectively, in recognition of their distinct community.  The honour of the Crown is thus engaged here.

The majority also asserted that the obligation contained was solemn and treaty-like:

[92]           To understand the nature of s. 31 as a solemn obligation, it may be helpful to consider its treaty-like history and character. Section 31 sets out solemn promises — promises which are no less fundamental than treaty promises. Section 31, like a treaty, was adopted with “the intention to create obligations . . . and a certain measure of solemnity”: Sioui, at p. 1044; Sundown. It was intended to create legal obligations of the highest order: no greater solemnity than inclusion in the Constitution of Canada can be conceived. Section 31 was conceived in the context of negotiations to create the new province of Manitoba. And all this was done to the end of reconciling the Métis Aboriginal interest with the Crown’s claim to sovereignty.

Although the majority described section 31 as “treaty-like”, it rejected the suggestion that it was, in fact, a treaty:

[93]           Section 31, though, is not a treaty. The trial judge correctly described s. 31 as a constitutional provision crafted for the purpose of resolving Aboriginal concerns and permitting the creation of the province of Manitoba. When the Manitoba Act was passed, the Métis dominated the Red River provisional government, and controlled a significant military force. Canada had good reason to take the steps necessary to secure peace between the Métis and the settlers.

As a constitutional provision expressing an obligation to an Aboriginal group, the majority found that section 31 engaged the Honour of the Crown.

Section 32 of the Manitoba Act was designed to protect the land titles of all Red River Residents, not merely the Métis.  Because it was not a promise made specifically to an Aboriginal group, but only to a group composed primarily of Métis, but also containing others, it did not qualify as the source of a special Crown duty to the Métis:

[95]      … The honour of the Crown is not engaged whenever an Aboriginal person accesses a benefit.

Did the Crown Act Honourably in the Implementation of Section 31?

The MMF argued that Canada had failed to fulfill its duties to the Métis people in relation to the children’s grant in four ways:

  1. inexcusably delaying distribution of s. 31 lands;
  2. distributing lands via random selection rather than ensuring family members received contiguous parcels;
  3. failing to ensure s. 31 grant recipients were not taken advantage of by land speculators; and
  4. giving some eligible Métis children $240 worth of scrip redeemable at the Land Titles Office instead of a direct grant of land.

Delay

The central finding of the majority was that the length of time that it took to complete the implementation of section 31 of the Manitoba Act was due to a lack of diligence on the part of the Federal Crown:

[101]       Contrary to the expectations of the parties, it took over 10 years to make the allotments of land to Métis children promised by s. 31. Indeed, the final settlement, in the form not of land but of scrip, did not occur until 1885. This delay substantially defeated a purpose of s. 31.

Although the MMF had strenuously argued at trial that the responsible agents of the Crown had acted in bad faith in the distribution of lands under section 31, the Court did not accept that characterization.  The majority stated unequivocally that:

[109]       We take no issue with the finding of the trial judge that, with one exception, there was no bad faith or misconduct on the part of the Crown employees.

However, good faith was not the issue in the minds of the majority:

[D]iligence requires more than simply the absence of bad faith. The trial judge noted that the children’s grants “were not implemented or administered without error or dissatisfaction”: para. 1207. Viewing the matter through the lens of fiduciary duty, the trial judge found this did not rise to a level of concern. We take a different view. The findings of the trial judge indicate consistent inattention and a consequent lack of diligence.

The Chief Justice and Justice Karakatsanis further found that the delay had largely defeated the purpose of section 31.  That purpose, according to the trial judge, had been to give families of the Métis through their children a head start in the new country in anticipation of the probable and expected influx of immigrants.  The majority also referred to evidence that Sir John A. Macdonald and George E. Cartier had stated that the lands were to be distributed as soon as practicable and in an effective and equitable manner.

The majority concluded:

[110]    …[V]iewing the conduct of the Crown in its entirety and in the context of the situation, including the need for prompt implementation, the Crown acted with persistent inattention and failed to act diligently to achieve the purposes of the s. 31 grant. Canada’s argument that in some cases the delay secured better prices for Métis who sold is undermined by evidence that many Métis sold potential interests for too little, and, in any event, does not absolve the Crown of failure to act as its honour required. The delay in completing the s. 31 distribution was inconsistent with the behaviour demanded by the honour of the Crown.

In his dissent, Mr. Justice Rothstein criticized the majority for departing from the findings of the Trial Judge, who, in the view of the dissenters, had not found any lack of diligence on the part of the Crown or its employees, nor any adverse consequences for the Métis overall, resulting from the delay.  They also criticized the majority for failing to take into account the real practical difficulties that were encountered in completing the land distribution in the context of the times:

[189] If this land grant obligation had been made today, we would have expected a more expeditious procedure. However, the obligation was not undertaken by the present day federal government. It was undertaken by the government over 130 years ago, at a time when the government and the country were newly formed and struggling to become established.

Sales to Speculators

The Court unanimously rejected the argument that the Honour of the Crown required Canada to have restricted the sale of section 31 lands in order to protect Métis children from improvident sales to land speculators.

[113]       The trial judge held that restricting the alienability of Métis land would have been seen as patronizing and been met with disfavour amongst the Métis. The Court of Appeal agreed, and added that, “practically speaking, next to nothing could have been done to prevent sales of and speculation in s. 31 lands in the absence of an absolute prohibition against sales of any kind”: para. 631. It added that some Métis received more land than they needed, and many were leaving the settlement to follow the buffalo hunt, making the ability to sell their interests valuable.
 
[114]       We see no basis to interfere with the finding that many eligible Métis were determined to sell their lots or the conclusion that a prohibition on sales would have been unacceptable.

The majority added, however:

[117]       The honour of the Crown did not demand that the grant lands be made inalienable. However, the facts on the ground, known to all, made it all the more important to complete the allotment without delay and, in the interim, to advise Métis of what holdings they would receive. By 1874, in their recommendations as to how the allotment process should be carried out, both Codd and Lieutenant Governor Alexander Morris implicitly recognized that delay was encouraging sales at lower prices; nevertheless, allotment would not be complete for six more years. Until allotments were known and completed, delay inconsistent with the honour of the Crown was perpetuating a situation where children were receiving artificially diminished value for their land grants.

The dissenters responded that the majority was only considering the impact of the delay on the minority of section 31 beneficiaries who sold their rights to the lands in advance of the actual grants:

[198]    …In fact, 1880 to 1882 were boom years, where the land would have become even more valuable. The Court of Appeal noted that the vast majority of sales took place between 1877 and 1883. It is incongruous for the Métis descendants as a group to come forward ostensibly on behalf of some of their ancestors who may have benefitted from the delay.

Scrip

The Court unanimously found that the Federal Government had not acted dishonourably in granting scrip (a certificate worth $240.00 towards the purchase of public lands) rather than land itself to 993 Métis children who had not been provided for in the final allotment of land grants. 

In 1875-76 the Federal Government underestimated the number of persons eligible for section 31 grants.  Based upon that underestimate, the government concluded that each individual grantee should receive 240 acres.  It was eventually discovered that the size of the individual allotments should have been 205 acres in order to give each qualified Métis child an equal share of the 1,400,000 acres specified in section 31.

By 1884 it had become clear that the 1.4 million acres would be exhausted without satisfying all the legitimate claims of Métis children to their grants.  The Federal Government concluded that the most efficient way to resolve the problem was to issue $240 scrip certificates, which would enable the recipient to purchase 240 acres of unoccupied Crown land at $1.00 per acre.  Claims dribbled in far into the late 1880’s.  Ultimately 993 scrip certificates were issued.

The MMF argued that the Manitoba Act had promised land, not scrip, and that in issuing scrip the Federal Government was violating a constitutional right.  They also complained that at the time some Métis received their scrip, the price of Crown lands had increased in many areas and the $240 scrips could no longer be converted into 240 acres.

The Chief Justice and Justice Karakatsanis rejected the first argument:

[120]       …As long as the 1.4 million acres was set aside and distributed with reasonable equity, the scheme of the Manitoba Act was not offended. It was unavoidable that the land would be distributed based on an estimate of the number of eligible Métis that would be inaccurate to some degree. The issuance of scrip was a reasonable mechanism to provide the benefit to which the excluded children were entitled.

The majority, however, accepted the second argument as a further example of how delay in fulfilling section 31 had disadvantaged the Métis:

[123] We conclude that the delayed issuance of scrip redeemable for significantly less land than was provided to the other recipients further demonstrates the persistent pattern of inattention inconsistent with the honour of the Crown that typified the s. 31 grants

In dissent, Mr. Justice Rothstein argued:

[200]       I cannot agree that the delayed issuance of scrip demonstrates a persistent pattern of inattention by the government. Rather, the issuance of scrip was equally if not more consistent with the late filing of applications — over which the government had little control — and the corresponding underestimate in the number of eligible recipients. That is hardly evidence of government inattention.
 
[201]       If there had been no delay and the accurate number of Métis children had been known from the outset, each child would have received less land than they actually did because the recipients of scrip would have been included in the original division. In this sense, then, Canada overfulfilled its obligations under the Manitoba Act by providing scrip after the 1.4 million acres were exhausted. The issuance of scrip reflected Canada’s commitment to meaningful fulfillment of the obligation, not inattention.

Random Allotment

The MMF argued that section 31 lands should have been allotted so that the lands granted to the children were contiguous to the lands of their parents.  This method of allotment would have enabled the Métis to establish a “homeland” or land base.

The majority concluded:

[127] Given the finding at trial that the grant was intended to benefit the individual children, not establish a Métis land base, we accept that random selection within each parish was an acceptable way to distribute the land consistent with the purpose of the s. 31 obligation. This said, the delay in distributing land, and the consequential sales prior to patent, may well have made it more difficult for Métis to trade grants amongst themselves to achieve contiguous parcels

Conclusion with respect to the Honour of the Crown

Although the majority did not accept the MMF’s arguments with respect to how the Crown should have distributed the section 31 lands and restricted their alienability, they, nevertheless, found that the Crown had not acted honourably:

[128]    … The Métis were promised implementation of the s. 31 land grants in “the most effectual and equitable manner”. Instead, 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.

Mr. Justice Rothstein disagreed:

[202]       Manifestly, the trial judge made findings of delay. Nonetheless these findings and the evidence do not reveal a pattern of inattention. They do not reveal a lack of diligence. Nor do they reveal that the purposes of the land grant were frustrated. That alone would nullify any claim the Métis might have based on a breach of duty derived from the honour of the Crown, assuming that any such duty exists … .

Were the Manitoba Statutes Related to Implementation Unconstitutional?

The MMF asserted that a number of Manitoba statutes passed in the 1870’s and 1880’s which dealt with the sales of lands granted under section 31 were unconstitutional.  The Court dismissed this claim as moot:

[132]       These statutes have long been out of force. They can have no future impact. Their only significance is as part of the historic matrix of the Métis’ claims. In short, they are moot. To consider their constitutionality would be a misuse of the Court’s time. We therefore need not address this issue.

Was the Claim barred by Limitations?

The majority held that the law of limitations did not preclude a declaration that Canada did not act diligently to fulfil the obligation to the Métis in section 31 of the Manitoba Act.

The joint authors of the majority opinion pointed to the well-established rule that although claims for personal remedies flowing from the striking down of an unconstitutional statute are barred by the running of a limitation period, courts retain the power to rule on the constitutionality of the underlying statute:

[135]       … [T]his Court has found that limitations of actions statutes cannot prevent the courts, as guardians of the Constitution, from issuing declarations on the constitutionality of legislation. By extension, limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown’s conduct.

They considered this case an appropriate one in which to apply that extended principle:

[137]    … [T]he Métis seek no personal relief and make no claim for damages or for land. Nor do they seek restoration of the title their descendants might have inherited had the Crown acted honourably. Rather, they seek a declaration that a specific obligation set out in the Constitution was not fulfilled in the manner demanded by the Crown’s honour. They seek this declaratory relief in order to assist them in extra-judicial negotiations with the Crown in pursuit of the overarching constitutional goal of reconciliation that is reflected in s. 35 of the Constitution.

The Federal and Provincial Crowns argued that this case had been framed as a claim of breach of fiduciary duty, and that the limitations statutes applied to fiduciary breach claims.  The majority forcefully rejected this argument:

[139] However, at this point we are not concerned with an action for breach of fiduciary duty, but with a claim for a declaration that the Crown did not act honourably in implementing the constitutional obligation in s. 31 of the Manitoba Act. Limitations acts cannot bar claims of this nature.

The majority added that there might be different rules in relation to the application of limitations law to Aboriginal claims than there were in other cases:

[140]       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 unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import. The courts are the guardians of the Constitution and, as in Ravndahl and Kingstreet, cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 72.
 
[141]       Furthermore, many of the policy rationales underlying limitations statutes simply do not apply in an Aboriginal context such as this. Contemporary limitations statutes seek to balance protection of the defendant with fairness to the plaintiffs: Novak v. Bond, [1999] 1 S.C.R. 808, at para. 66, per McLachlin J. In the Aboriginal context, reconciliation must weigh heavily in the balance. As noted by Harley Schachter [one of the counsel for the MMF]:
The various rationales for limitations are still clearly relevant, but it is the writer’s view that the goal of reconciliation is a far more important consideration and ought to be given more weight in the analysis. Arguments that provincial limitations apply of their own force, or can be incorporated as valid federal law, miss the point when aboriginal and treaty rights are at issue. They ignore the real analysis that ought to be undertaken, which is one of reconciliation and justification.

…  Leonard I. Rotman goes even farther, pointing out that to allow the Crown to shield its unconstitutional actions with the effects of its own legislation appears fundamentally unjust. ... The point is that despite the legitimate policy rationales in favour of statutory limitations periods, in the Aboriginal context, there are unique rationales that must sometimes prevail.  [References omitted].

The majority then recited other reasons why limitations law should not be applied to this case:

[142]    In this case, the claim is not stale — it is largely based on contemporaneous documentary evidence — and no third party legal interests are at stake. As noted by Canada, the evidence provided the trial judge with “an unparalleled opportunity to examine the context surrounding the enactment and implementation of ss. 31 and 32 of the Manitoba Act”.

The majority also stressed that the remedy in this case was purely declaratory:

[143]       Furthermore, the remedy available under this analysis is of a limited nature. A declaration is a narrow remedy. It is available without a cause of action, and courts make declarations whether or not any consequential relief is available. … [I]t is not awarded against the defendant in the same sense as coercive relief …  In some cases, declaratory relief may be the only way to give effect to the honour of the Crown ….  Were the Métis in this action seeking personal remedies, the reasoning set out here would not be available. However … the remedy sought here is clearly not a personal one …. The principle of reconciliation demands that such declarations not be barred.
 
[144]       We conclude that the claim in this case is a claim for a declaration of the constitutionality of the Crown’s conduct toward the Métis people under s. 31 of the Manitoba Act. It follows that The Limitation of Actions Act does not apply and the claim is not statute-barred.

Mr. Justice Rothstein was clearly very troubled by the majority’s refusal to apply The Limitation of Actions Act, and set out his concerns at length.  We reproduce some of the more significant paragraphs of his argument:

[215]       Even if one accepts that the honour of the Crown was engaged, that it requires the diligent implementation of s. 31, and that this duty was not fulfilled, any claims arising from such a cause of action have long been barred by statutes of limitations. The majority has attempted to circumvent the application of these limitations periods by characterizing the claim as a fundamental constitutional grievance arising from an “ongoing rift in the national fabric” (para. 140). With respect, there is no legal or principled basis for this exception to validly enacted limitations statutes adopted by the legislature. In my view, these claims must be rejected on the basis that they are time-barred.
 
[227]    The Métis are asking this Court to rule on a factual dispute about how lands were distributed over 130 years ago. While they are not asking for a monetary remedy, they are asking for their circumstances and the specific facts of the land grants to be assessed. …These claims are made by individual Métis and their organized representatives. The claims do not arise from a law which is unconstitutional. Rather, they arise from individual factual circumstances.  As a result, the rule … that individual factual claims are barred by limitations periods applies to bar suit in this case.
 
[230]       Limitations statutes are driven by specific policy choices of the legislatures. The exceptions in such statutes are also grounded in policy choices made by legislatures. To create a new judicial exception for those fundamental constitutional claims that arise from rifts in the national fabric is to engage directly in social policy, which is not an appropriate role for the courts.
 
[253] If Parliament or provincial legislatures wanted to exclude factual claims with a constitutional component from limitations periods, then they could do so by statute. As they have not chosen to make an exception for the type of declaration that the Métis seek in this case, it is inappropriate for this Court to do so.
 
[254] My colleagues suggest that the above rationales have little role to play in an Aboriginal context, where the goal of reconciliation must be given priority. In so doing, the majority’s reasons call into question this Court’s decisions in Wewaykum, at para. 121, and more recently in Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 13. In Lameman, this Court specifically stated that policy rationales that support limitations periods “appl[y] as much to Aboriginal claims as to other claims” (para. 13 (emphasis added)). Without doing so explicitly, it appears that the majority has departed from the legal certainty created by Wewaykum and Lameman, in favour of an approach where “reconciliation” must be given priority.
 
[255] Moreover, the legal framework of this claim is very different from a claim based on an Aboriginal right. Aboriginal rights are protected from extinguishment under s. 35 of the Constitution Act, 1982. Aboriginal rights, therefore, constitute ongoing legal entitlements. By contrast, the claims in this case concern a constitutional obligation that was fulfilled over 100 years ago.
 
[256] My colleagues assert that limitations periods should not apply to claims for failure to diligently fulfill solemn obligations arising from the constitution where the only remedy sought is a declaration. Respectfully, this is a choice to be made by the legislature. In Manitoba, limitations legislation has never contained an exception for declarations. This Court is not empowered to create one.

Laches

The majority observed that the doctrine of laches does not set any specific limits but considers the circumstances of each case.  Important factors are whether there has been acquiescence on the plaintiff’s part; and whether the defendant has changed his or her position in reasonable reliance on the plaintiff’s acceptance of the status quo.  The majority added:

[147]    Acquiescence depends on knowledge, capacity and freedom …  In the context of this case — including 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 —delay by itself cannot be interpreted as some clear act by the claimants which amounts to acquiescence or waiver.

The majority also suggested that care was required in applying the doctrine of laches in cases involving the claims of Aboriginal people:

[149]    [I]n this rapidly evolving area of the law, it is rather unrealistic to suggest that the Métis sat on their rights before the courts were prepared to recognize those rights. As it is, the Métis commenced this claim before s. 35 was entrenched in the Constitution, and long before the honour of the Crown was elucidated in Haida Nation. It is difficult to see how this could constitute acquiescence in equity.

However, the majority believed that the lack of change in position on the part of Canada was a complete answer to any assertion of laches against the plaintiffs:

[152]       The second consideration relevant to laches is whether there was any change in Canada’s position as a result of the delay. The answer is no. …
 
[153]       This suffices to answer Canada’s argument that the Métis claim for a declaration that the Crown failed to act in accordance with the honour of the Crown is barred by laches.

The majority went on to express doubts whether the doctrine of laches could ever be applied to defeat a claim for a declaration of constitutional right:

[153]    …  It is difficult to see how a court, in its role as guardian of the Constitution, could apply an equitable doctrine to defeat a claim for a declaration that a provision of the Constitution has not been fulfilled as required by the honour of the Crown. … The Constitution is the supreme law of our country, and it demands that courts be empowered to protect its substance and uphold its promises.

Mr. Justice Rothstein disagreed:

[274]    … The Métis have knowingly delayed their claim by over a hundred years and in so doing have acquiesced to the circumstances and invited the government to rely on that, rendering the prosecution of this action unreasonable. As a result, their claim cannot succeed because it is barred by both branches of the doctrine of laches.

He was particularly concerned about the majority’s suggestion that a defence of laches should never be available to defeat a claim based upon the Honour of the Crown:

[300] The majority concludes that claims for a declaration that a provision of the Constitution was not fulfilled as required by the honour of the Crown ought never to be subject to laches. This is a broad and sweeping declaration, especially considering the conclusion of this Court in Wewaykum that breaches of the fiduciary duty could be subject to laches. A fiduciary duty is one duty derived from the honour of the Crown. It is fundamentally inconsistent to permit certain claims (i.e. those based on “solemn obligations” contained in Constitutional documents) derived from the honour of the Crown to escape the imputation of laches while other claims (i.e. those based on the more well-established and narrowly defined fiduciary obligation) are not given such a wide berth. Moreover, this holding will encourage litigants to reframe claims in order to bring themselves within the scope of this new, more generous exception to the doctrine of laches, which —particularly in light of the ambiguities associated with the new duty — creates uncertainty in the law.

Disposition

The MMF’s appeal was allowed in part.  The plaintiffs were found to be entitled to a declaration:

That 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.

The plaintiffs were also awarded their costs throughout.
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12888/index.do

Kenneth J. Tyler, Partner
Aboriginal Law
BLG, Vancouver
604-640-4185
KTyler@blg.com

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Expertise

Aboriginal Law