Manitoba Metis Federation Inc. v. Canada (Attorney General)

Manitoba Metis Federation Inc. v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2013-03-08
Neutral citation
2013 SCC 14
Report
[2013] 1 SCR 623
Case number
33880
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Manitoba
Subjects
Aboriginal law
Civil procedure
Notes
SCC Case Information: 33880
Decision Content
SUPREME COURT OF CANADA
Citation: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623
Date: 20130308
Docket: 33880
Between:
Manitoba Metis Federation Inc., Yvon Dumont, Billy Jo De La Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allarie, Celia Klassen, Alma Belhumeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson
Appellants
and
Attorney General of Canada and Attorney General of Manitoba
Respondents
- and -
Attorney General for Saskatchewan, Attorney General of Alberta,
Métis National Council, Métis Nation of Alberta, Métis Nation of Ontario,
Treaty One First Nations and Assembly of First Nations
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Joint Reasons for Judgment:
(paras. 1 to 155)
Dissenting Reasons:
(paras. 156 to 303)
McLachlin C.J. and Karakatsanis J. (LeBel, Fish, Abella and Cromwell JJ. concurring)
Rothstein J. (Moldaver J. concurring)
(* Deschamps J. took no part in the judgment.)
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623
Manitoba Metis Federation Inc.,
Yvon Dumont, Billy Jo De La Ronde, Roy Chartrand,
Ron Erickson, Claire Riddle, Jack Fleming, Jack
McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark,
Miles Allarie, Celia Klassen, Alma Belhumeur,
Stan Guiboche, Jeanne Perrault,
Marie Banks Ducharme and Earl Henderson Appellants
v.
Attorney General of Canada and
Attorney General of Manitoba Respondents
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Métis National Council,
Métis Nation of Alberta,
Métis Nation of Ontario,
Treaty One First Nations and
Assembly of First Nations Interveners
Indexed as: Manitoba Metis Federation Inc. v. Canada (Attorney General)
2013 SCC 14
File No.: 33880.
2011: December 13; 2013: March 8.
Present: McLachlin C.J. and LeBel, Deschamps,[*] Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for manitoba
Aboriginal law — Métis — Crown law — Honour of the Crown — Canadian government agreeing in 1870 to grant Métis children shares of 1.4 million acres of land and to recognize existing Métis landholdings — Promises set out in ss. 31 and 32 of the Manitoba Act, 1870, a constitutional document — Errors and delays interfering with division and granting of land among eligible recipients — Whether Canada failing to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act, 1870.
Aboriginal law — Métis — Fiduciary duty — Canadian government agreeing in 1870 to grant Métis children shares of 1.4 million acres of land and to recognize existing Métis landholdings — Promises set out in ss. 31 and 32 of the Manitoba Act, 1870, a constitutional document — Errors and delays interfering with division and granting of land among eligible recipients — Whether Canada in breach of fiduciary duty to Métis.
Limitation of actions — Declaration — Appellants seeking declaration in the courts that Canada breached obligations to implement promises made to the Métis people in the Manitoba Act, 1870 — Whether statute of limitations can prevent courts from issuing declarations on the constitutionality of Crown conduct — Whether claim for declaration barred by laches.
Civil procedure — Parties — Standing — Public interest standing — Manitoba Act, 1870, providing for individual land entitlements — Whether federation advancing collective claim on behalf of Métis people should be granted public interest standing.
After Confederation, the first government of Canada embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to settlement. Canada became the titular owner of Rupert’s Land and the Red River Settlement; however, the French‑speaking Roman Catholic Métis, the dominant demographic group in the Red River Settlement, viewed with alarm the prospect of Canadian control leading to a wave of English‑speaking Protestant settlers that would threaten their traditional way of life. In the face of armed resistance, Canada had little choice but to adopt a diplomatic approach. The Red River settlers agreed to become part of Canada, and Canada agreed to grant 1.4 million acres of land to the Métis children (subsequently set out in s. 31 of the Manitoba Act) and to recognize existing landholdings (subsequently set out in s. 32 of the Manitoba Act). The Canadian government began the process of implementing s. 31 in early 1871. The land was set aside, but a series of errors and delays interfered with dividing the land among the eligible recipients. Initially, problems arose from errors in determining who had a right to a share of the land promised. As a result, two successive allotments were abandoned; the third and final allotment was not completed until 1880. The lands were distributed randomly to the eligible Métis children living within each parish.
While the allotment process lagged, speculators began acquiring the Métis children’s yet‑to‑be granted interests in the s. 31 lands, aided by a range of legal devices. During the 1870s and 1880s, Manitoba passed five statutes, now long spent and repealed, dealing with the technical requirements to transfer interests in s. 31 lands. Initially, Manitoba moved to curb speculation and improvident sales of the children’s interests, but in 1877, it changed course, allowing sales of s. 31 entitlements.
Eventually, it became apparent that the number of eligible Métis children had been underestimated. Rather than starting a fourth allotment, the Canadian government provided that remaining eligible children would be issued with scrip redeemable for land. The scrip was based on 1879 land prices; however, when the scrip was delivered in 1885, land prices had increased so that the excluded children could not acquire the same amount of land granted to other children. In the decades that followed, the position of the Métis in the Red River Settlement deteriorated. White settlers soon constituted a majority in the territory and the Métis community began to unravel.
The Métis 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. The trial judge dismissed the claim for a declaration on the ground that ss. 31 and 32 of the Manitoba Act gave rise to neither a fiduciary duty nor a duty based on the honour of the Crown. He also found that the challenged Manitoba statutes were constitutional, and, in any event, the claim was barred by limitations and the doctrine of laches. Finally, he found that the Manitoba Metis Federation Inc. (“MMF”) should not be granted standing in the action, since the individual plaintiffs were capable of bringing the claims forward. A five‑member panel of the Manitoba Court of Appeal dismissed the appeal.
Held (Rothstein and Moldaver JJ. dissenting): The appeal should be allowed in part. 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.
Per McLachlin C.J. and LeBel, Fish, Abella, Cromwell and Karakatsanis JJ.: The MMF should be granted standing. The action advanced is a collective claim for declaratory relief for the purposes of reconciling the descendants of the Métis people of the Red River Valley and Canada. It merits allowing the body representing the collective Métis interest to come before the court.
The obligations enshrined in ss. 31 and 32 of the Manitoba Act did not impose a fiduciary duty on the government. In the Aboriginal context, a fiduciary duty may arise in two ways. First, it may arise as a result of the Crown assuming discretionary control over specific Aboriginal interests. Where the Crown administers lands or property in which Aboriginal peoples have an interest, such a duty may arise if there is (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest. The interest must be a communal Aboriginal interest in land that is integral to the nature of the Métis distinctive community and their relationship to the land. It must be predicated on historic use and occupation, and cannot be established by treaty or by legislation. Second, and more generally, a fiduciary duty may arise if there is (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary; (2) a defined person or class of persons vulnerable to a fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.
Although the Crown undertook discretionary control of the administration of the land grants under ss. 31 and 32 of the Manitoba Act, the Métis are Aboriginal, and they had an interest in the land, the first test for fiduciary duty is not made out because neither the words of s. 31 nor the evidence establish a pre‑existing communal Aboriginal interest held by the Métis. Their interests in land arose from their personal history, not their shared distinct Métis identity. Nor was a fiduciary duty established on the basis of an undertaking by the Crown. 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. 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. Section 32 simply confirmed the continuance of different categories of landholdings in existence shortly before or at the creation of the new province. It did not constitute an undertaking on the part of the Crown to act as a fiduciary in settling the titles of the Métis landholders.
However, the Métis are entitled to a declaration that the federal Crown failed to act with diligence in implementing the land grant provision set out in s. 31 of the Manitoba Act, in accordance with the honour of the Crown. The ultimate purpose of the honour of the Crown is the reconciliation of pre‑existing Aboriginal societies with the assertion of Canadian sovereignty. Where this is at stake, it requires the Crown to act honourably in its dealings with the Aboriginal peoples in question. This flows from the guarantee of Aboriginal rights in s. 35(1) of the Constitution. The honour of the Crown is engaged by an explicit obligation to an Aboriginal group enshrined in the Constitution. 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. An explicit obligation to an Aboriginal group in the Constitution engages the honour of the Crown.
The honour of the Crown speaks to how obligations that attract it must be fulfilled, so the duties that flow from it vary with the situation. In the context of the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) take a broad purposive approach to the interpretation of the promise; and (2) act diligently to fulfill it. The question is whether, viewing the Crown’s conduct as a whole in the context of the case, it acted with diligence to pursue the fulfillment of the purposes of the obligation. The duty to act diligently is a narrow and circumscribed duty. Not every mistake or negligent act in implementing a constitutional obligation to an Aboriginal people brings dishonour to the Crown, and there is no guarantee that the purposes of the promise will be achieved. However, 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.
Section 31 of the Manitoba Act is a solemn constitutional obligation to the Métis people of Manitoba, an Aboriginal people, and it engaged the honour of the Crown. Its immediate purpose was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis’ Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. By contrast, s. 32 was a benefit made generally available to all settlers and did not engage the honour of the Crown.
Although the honour of the Crown obliged the government to act with diligence to fulfill s. 31, it acted with persistent inattention and failed to act diligently to achieve the purposes of the s. 31 grant. This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade, substantially defeating a purpose of s. 31. This was inconsistent with the behaviour demanded by the honour of the Crown: a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.
None of the government’s other failures — failing to prevent Métis from selling their land to speculators, issuing scrip in place of land, and failing to cluster family allotments — were in themselves inconsistent with the honour of the Crown. That said, the impact of these measures was exacerbated by the delay inconsistent with the honour of the Crown: it increased improvident sales to speculators; it meant that when the children received scrip, they obtained significantly less than the 240 acres provided to those who took part in the initial distribution, because the price of land had increased in the interim; and it made it more difficult for Métis to trade grants amongst themselves to achieve contiguous parcels.
It is unnecessary to consider the constitutionality of the implementing statutes because they are moot.
The Métis claim based on the honour of the Crown is not barred by the law of limitations. Although claims for personal remedies flowing from unconstitutional statutes may be time‑barred, the Métis seek no personal relief and make no claim for damages or for land. Just as limitations acts cannot prevent the courts from issuing declarations on the constitutionality of legislation, limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown’s conduct. So long as the constitutional grievance at issue here remains outstanding, the goals of reconciliation and constitutional harmony remain unachieved. In addition, many of the policy rationales underlying limitations statutes do not apply in an Aboriginal context. A declaration is a narrow remedy and, in some cases, may be the only way to give effect to the honour of the Crown.
Nor is the claim barred by the equitable doctrine of laches. Given 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 on the part of the appellants cannot, by itself, be interpreted as some clear act which amounts to acquiescence or waiver. It is rather unrealistic to suggest that the Métis sat on their rights before the courts were prepared to recognize those rights. Furthermore, Canada has not changed its position as a result of the delay. This suffices to find that the claim is not barred by laches. However, 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 Constitutional provision has not been fulfilled as required by the honour of the Crown.
Per Rothstein and Moldaver JJ. (dissenting): There is agreement with the majority that there was no fiduciary duty here, that no valid claims arise from s. 32 of the Manitoba Act, that any claims that might have arisen from the now repealed Manitoba legislation on the land grants are moot, that the random allocation of land grants was an acceptable means for Canada to implement the s. 31 land grants, and that the MMF has standing to bring these claims. However, the majority proposes a new common law constitutional obligation derived from the honour of the Crown. The courts below did not consider this issue and the parties did not argue it before this Court. This is an unpredictable expansion of the scope of the duties engaged under the honour of the Crown. The claim based on the honour of the Crown is also barred by both limitations periods and laches.
While a duty of diligent fulfillment may well prove to be an appropriate expansion of Crown obligations, and while a faster process would most certainly have been better, the duty crafted by the majority creates an unclear rule that is unconstrained by laches or limitation periods and immune from legislative redress, making the extent and consequences of the Crown’s new obligations impossible to predict. It is not clear when an obligation rises to the “solemn” level that triggers the duty, what types of legal documents will give rise to solemn obligations, whether an obligation with a treaty‑like character imposes higher obligations than other constitutional provisions, and whether it is sufficient for the obligation to be owed to an Aboriginal group. The idea that how the government is obliged to perform a constitutional obligation depends on how closely it resembles a treaty should be rejected. It would be a significant expansion of Crown liability to permit a claimant to seek relief so long as the promise was made to an Aboriginal group, without proof of an Aboriginal interest sufficient to ground a fiduciary duty, and based on actions that would not constitute a breach of fiduciary duty.
Even if the honour of the Crown was engaged and required the diligent implementation of s. 31, and even if this duty was not fulfilled, any claims arising from such a cause of action have long been barred by statutes of limitations and the equitable doctrine of laches. Limitations and laches cannot fulfill their purposes if they are not universally applicable. Limitations periods apply to the government as they do to all other litigants both generally and in the area of Aboriginal claims. This benefits the legal system by creating certainty and predictability, and serves to protect society at large by ensuring that claims against the Crown are made in a timely fashion so that the Crown is able to defend itself adequately.
Limitations periods have existed in Manitoba continuously since 1870, and, since 1931, Manitoba limitations legislation has provided a six‑year limitation period for all causes of action, whether the cause of action arose before or after the legislation came into force. Manitoba has a 30‑year ultimate limitation period. The Crown is entitled to the benefit of those limitations periods. The policy rationales underlying limitations periods do not support the creation of an exemption from those periods in this case. Manitoba legislation does not contain an exception from limitations periods for declaratory judgments and no such exception should be judicially created. In this case, the risk that a declaratory judgment will lead to additional remedies is fully realized: the Métis plan to use the declaration in extra‑judicial negotiations with the Crown, so the declaration exposes the Crown to an obligation long after the time when the limitations period expired.
Moreover, this Court has never recognized a general exception from limitations for constitutionally derived claims. Rather, it has consistently held that limitations periods apply to factual claims with constitutional elements. While limitations periods do not apply to prevent a court from declaring a statute unconstitutional, the Métis’ claim about unconstitutional statutes is moot. The remaining declaration sought concerns factual issues and alleged breaches of obligations which have always been subject to limitation periods. In suggesting that the goal of reconciliation must be given priority in the Aboriginal context, it appears that the majority has departed from the principle that the same policy rationales that support limitations generally should apply to Aboriginal claims.
These claims are also subject to laches. Laches can be used to defend against equitable claims that have not been brought in a sufficiently timely manner, and as breaches of fiduciary duty can be subject to laches, it would be fundamentally inconsistent to permit certain claims based on the honour of the Crown to escape the imputation of laches. Both branches of laches are satisfied: 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 to acquiescence, the trial judge found that the Métis had the required knowledge in the 1870s, and that finding has not been shown to be an error. The suggestion that it is “unrealistic” to expect someone to have enforced their claim before the courts were prepared to recognize those rights is fundamentally at odds with the common law approach to changes in the law. Delay in making the grants cannot be both the wrong alleged and the reason the Crown cannot access the defence of laches: laches are always invoked as a defence by a party alleged to have wronged the plaintiff. If assessing conscionability is reduced to determining if the plaintiff has proven the allegations, the defence of laches is rendered illusory. The imbalance in power between the Métis and the government did not undermine their knowledge, capacity or freedom to the extent required to prevent a finding of acquiescence. The inference that delays in the land grants caused the vulnerability of the Métis was neither made by the trial judge nor supported by the record. In any event, laches are imputed against vulnerable people just as limitations periods are applied against them.
As to reliance, had the claim been brought promptly, the unexplained delays referred to as evidence for the Crown acting dishonourably may well have been accounted for, or the government might have been able to take steps to satisfy the Métis community.
Finally, while not doing so explicitly, the majority departs from the factual findings of the trial judge, absent a finding of palpable and overriding error, in two main areas: (1) the extent of the delay in distributing the land, and (2) the effect of that delay on the Métis. Manifestly, the trial judge made findings of delay. Nonetheless these findings and the evidence do not reveal a pattern of inattention, a lack of diligence, or 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.
Cases Cited
By McLachlin C.J. and Karakatsanis J.
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By Rothstein J. (dissenting)
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Watkins v. Olafson, [1989] 2 S.C.R. 750; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Riddlesbarger v. Hartford Insurance Co., 74 U.S. (7 Wall.) 386 (1868); United States v. Marion, 404 U.S. 307 (1971); Sparham‑Souter v. Town and Country Developments (Essex) Ltd., [1976] 1 Q.B. 858; Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372; Ultramares Corp. v. Touche, 174 N.E. 441 (1931); Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737; Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221; In re Spectrum Plus Ltd. (in liquidation), [2005] UKHL 41, [2005] 2 A.C. 680; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Barber v. Proudfoot, [1890‑91] 1 W.L.T.R. 144; Hardy v. Desjarlais (1892), 8 Man. R. 550; Robinson v. Sutherland (1893), 9 Man. R. 199; City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327.
Statutes and Regulations Cited
Act relating to the Titles of Half‑Breed Lands, S.M. 1885, c. 30.
Act to amend the Act passed in the 37th year of Her Majesty’s reign, entitled “The Half‑Breed Land Grant Protection Act”, S.M. 1877, c. 5.
Act to Amend The Limitation of Actions Act, S.M. 1980, c. 28, s. 3.
Act to enable certain children of Half‑breed heads of families to convey their land, S.M. 1878, c. 20.
Constitution Act, 1867 .
Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 [reprinted in R.S.C. 1985, App. II, No. 11].
Constitution Act, 1982, s. 35 .
Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 32 .
Half‑Breed Land Grant Protection Act, S.M. 1873, c. 44, preamble.
Half‑Breed Lands Act, R.S.M. 1891, c. 67.
Limitation Act, S.B.C. 2012, c. 13, s. 2 [not yet in force].
Limitation of Actions Act, C.C.S.M. c. L150, ss. 2(1)(k), 7, 14(4).
Limitation of Actions Act, R.S.M. 1970, c. L150.
Limitation of Actions Act, 1931, R.S.M. 1940, c. 121.
Limitation of Actions Act, 1931, S.M. 1931, c. 30, ss. 3(1)(i), (l), 6, 42.
Limitations Act, R.S.A. 2000, c. L‑12, ss. 1(i)(i), 13.
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 2, 10(2), 16(1)(a), 24.
Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1985, App. II, No. 8], ss. 31 , 32 .
Royal Proclamation (1763) [reprinted in R.S.C. 1985, App. II, No. 1].
Rupert’s Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105 [reprinted in R.S.C. 1985, App. II, No. 6].
Statute Law Revision and Statute Law Amendment Act, 1969, S.M. 1969 (2nd Sess.), c. 34, s. 31.
Authors Cited
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Meagher, R. P., W. M. C. Gummow and J. R. F. Lehane. Equity Doctrines and Remedies, 2nd ed. Sydney: Butterworths, 1984.
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Schachter, Harley. “Selected Current Issues in Aboriginal Rights Cases: Evidence, Limitations and Fiduciary Obligations”, in The 2001 Isaac Pitblado Lectures: Practising Law In An Aboriginal Reality. Winnipeg: Law Society of Manitoba, 2001, 203.
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Slattery, Brian. “Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727.
APPEAL from a judgment of the Manitoba Court of Appeal (Scott C.J.M. and Monnin, Steel, Hamilton and Freedman JJ.A.), 2010 MBCA 71, 255 Man. R. (2d) 167, 486 W.A.C. 167, [2010] 12 W.W.R. 599, [2010] 3 C.N.L.R. 233, 216 C.R.R. (2d) 144, 94 R.P.R. (4th) 161, [2010] M.J. No. 219 (QL), 2010 CarswellMan 322, affirming a decision of MacInnes J., 2007 MBQB 293, 223 Man. R. (2d) 42, [2008] 4 W.W.R. 402, [2008] 2 C.N.L.R. 52, [2007] M.J. No. 448 (QL), 2007 CarswellMan 500. Appeal allowed in part, Rothstein and Moldaver JJ. dissenting.
Thomas R. Berger, Q.C., James Aldridge, Q.C., Harley Schachter and Guylaine Grenier, for the appellants.
Mark Kindrachuk, Q.C., Mitchell R. Taylor, Q.C., and Sharlene Telles‑Langdon, for the respondent the Attorney General of Canada.
Heather Leonoff, Q.C., and Michael Conner, for the respondent the Attorney General of Manitoba.
P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.
Written submissions only by Douglas B. Titosky, for the intervener the Attorney General of Alberta.
Clement Chartier, Q.C., and Marc LeClair, for the intervener the Métis National Council.
Jason Taylor Madden, for the intervener the Métis Nation of Alberta.
Jean Teillet and Arthur Pape, for the intervener the Métis Nation of Ontario.
Jeffrey R. W. Rath, for the intervener the Treaty One First Nations.
Written submissions only by Joseph J. Arvay, Q.C., David C. Nahwegahbow and Bruce Elwood, for the intervener the Assembly of First Nations.
The judgment of McLachlin C.J. and LeBel, Fish, Abella, Cromwell and Karakatsanis JJ. was delivered by
The Chief Justice and Karakatsanis J. —
I. Overview
[1] Canada is a young nation with ancient roots. The country was born in 1867, by the consensual union of three colonies — United Canada (now Ontario and Quebec), Nova Scotia and New Brunswick. Left unsettled was whether the new nation would be expanded to include the vast territories to the west, stretching from modern Manitoba to British Columbia. The Canadian government, led by Prime Minister John A. Macdonald, embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to settlement.
[2] This meant dealing with the indigenous peoples who were living in the western territories. On the prairies, these consisted mainly of two groups — the First Nations, and the descendants of unions between white traders and explorers and Aboriginal women, now known as Métis.
[3] The government policy regarding the First Nations was to enter into treaties with the various bands, whereby they agreed to settlement of their lands in exchange for reservations of land and other promises.
[4] The government policy with respect to the Métis population — which, in 1870, comprised 85 percent of the population of what is now Manitoba — was less clear. Settlers began pouring into the region, displacing the Métis’ social and political control. This led to resistance and conflict. To resolve the conflict and assure peaceful annexation of the territory, the Canadian government entered into negotiations with representatives of the Métis-led provisional government of the territory. The result was the Manitoba Act, 1870, S.C. 1870, c. 3 (“Manitoba Act”), which made Manitoba a province of Canada.
[5] This appeal is about obligations to the Métis people enshrined in the Manitoba Act, a constitutional document. These promises represent the terms under which the Métis people agreed to surrender their claims to govern themselves and their territory, and become part of the new nation of Canada. These promises were directed at enabling the Métis people and their descendants to obtain a lasting place in the new province. Sadly, the expectations of the Métis were not fulfilled, and they scattered in the face of the settlement that marked the ensuing decades.
[6] Now, over a century later, the descendants of the Métis people seek a declaration in the courts that Canada breached its obligation to implement the promises it made to the Métis people in the Manitoba Act.
[7] More particularly, the appellants seek 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.
[8] It is not disputed that there was considerable delay in implementing the constitutional provisions. The main issues are (1) whether Canada failed to act in accordance with its legal obligations, and (2) whether the Métis’ claim is too late and thus barred by the doctrine of laches or by any limitations law, be it the English limitations law in force at the time the claims arose, or the subsequent limitations acts enacted by Manitoba: The Limitation of Actions Act, 1931, S.M. 1931, c. 30; The Limitation of Actions Act, 1931, R.S.M. 1940, c. 121; The Limitation of Actions Act, R.S.M. 1970, c. L150; collectively referred to as “The Limitation of Actions Act”.
[9] We conclude that s. 31 of the Manitoba Act constitutes a constitutional obligation to the Métis people of Manitoba, an Aboriginal people, to provide the Métis children with allotments of land. The immediate purpose of the obligation was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis’ Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. The obligation enshrined in s. 31 of the Manitoba Act did not impose a fiduciary or trust duty on the government. However, as a solemn constitutional obligation to the Métis people of Manitoba aimed at reconciling their Aboriginal interests with sovereignty, it engaged the honour of the Crown. This required the government to act with diligence in pursuit of the fulfillment of the promise. On the findings of the trial judge, the Crown failed to do so and the obligation to the Métis children remained largely unfulfilled. The Métis claim based on the honour of the Crown is not barred by the law of limitations or the equitable doctrine of laches. We therefore conclude that the Métis are entitled to a declaration that Canada failed to implement s. 31 as required by the honour of the Crown.
[10] We agree with the courts below that the s. 32 claim is not established, and find it unnecessary to consider the constitutionality of the implementing statutes.
II. The Constitutional Promises and the Legislation
[11] Section 31 of the Manitoba Act, known as the children’s grant, set aside 1.4 million acres of land to be given to Métis children:
31. 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, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.
[12] Section 32 of the Manitoba Act provided for recognition of existing landholdings, where individuals asserting ownership had not yet been granted title:
32. For the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them, it is enacted as follows: —
(1) All grants of land in freehold made by the Hudson’s Bay Company up to the eighth day of March, in the year 1869, shall, if required by the owner, be confirmed by grant from the Crown.
(2) All grants of estates less than freehold in land made by the Hudson’s Bay Company up to the eighth day of March aforesaid, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.
(3) All titles by occupancy with the sanction and under the license and authority of the Hudson’s Bay Company up to the eighth day of March aforesaid, of land in that part of the Province in which the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.
(4) All persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council.
(5) The Lieutenant-Governor is hereby authorized, under regulations to be made from time to time by the