In Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, the Supreme Court of Canada dismissed an appeal from judgments of the Manitoba courts holding that Canada had not breached its fiduciary duties to the Métis. However, the majority of the Court issued a declaration that Canada had breached the honour of the Crown in failing to act with diligence in implementing the Métis “children’s grant” provisions in section 31 of the Manitoba Act, a provision that the Court characterized as a constitutional promise. In doing so, the majority not only expanded the concept of the “honour of the Crown”, the underpinning of the Crown’s duties to Aboriginal peoples, but also found that limitation acts cannot prevent the courts from ruling on the constitutionality of the Crown’s conduct. While the majority clearly felt these steps were justified in the circumstances, Justice Rothstein and Justice Moldaver strongly disagreed, finding that the majority had fashioned “a vague 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”. Manitoba Métis Federation is a must read for anyone interested in the Supreme Court’s perspective in this continually evolving area.
The case centres around Canada’s 1870 agreement to grant 1.4 million acres of land to Métis children in return for the Red River settlers (the majority of whom were Métis) agreeing to become part of the Dominion of Canada.
The Manitoba Métis Federation sought a declaration, among other things, that in implementing the Manitoba Act, Canada breached its fiduciary duty to the Métis and failed to implement the Manitoba Act in a manner consistent with the honour of the Crown.
Lower Court Decisions
The trial judge dismissed the action on a variety of grounds. The judge denied the Manitoba Métis Federation “standing” in the action as the individual plaintiffs were capable of bringing the action forward. The judge then found that the Manitoba Act gave rise to neither a fiduciary duty nor a duty based on the honour of the Crown. In addition, he found that the claim was barred by the Manitoba statute of limitations and the doctrine of laches.
On appeal, the Court disagreed with several of the trial judge’s findings but overall upheld the trial decision. The Court of Appeal rejected the trial judge’s view that collective Aboriginal title to land was essential to a claim that the Crown owed a fiduciary duty to Aboriginal peoples, but found it unnecessary to consider this claim further since the trial judge’s findings of fact did not support the breach of any such duty. The Court also upheld the trial ruling that the Métis claim was statute barred.
Supreme Court Ruling
The Supreme Court considered four issues:
- Should the Manitoba Métis Federation be granted public interest standing?
- Did Canada breach its fiduciary duty to the Métis?
- Did Canada fail to comply with the honour of the Crown in implementing the children’s grant?
- Does the limitations period or doctrine of laches prevent the Court from issuing a declaration on the constitutionality of the Crown conduct?
The majority (written by Chief Justice McLachlin and Justice Karakatsanis) overturned the lower court decision on the standing issue. Applying the less restrictive approach recently set out in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, the Court held that the Manitoba Métis Federation’s collective claim was a “reasonable and effective means of bringing a challenge to court.” The presence of other claimants did not preclude the Federation from being granted public interest standing in the circumstances.
Regarding the claim for a breach of the Crown’s fiduciary duty, the majority agreed with the lower court decisions and found that there was no breach of fiduciary duties. The majority repeated its statements in Haida Nation v. British Columbia, 2004 SCC 73 and Wewaykum Indian Band v. Canada, 2002 SCC 79 that, while the relationship between the Métis and the Crown is fiduciary in nature, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations. In order for a fiduciary duty to arise, Canada needed to have either undertook discretionary control over a specific Aboriginal interest or have undertaken to act in the best interests of the Métis. On either ground the majority found that claim couldn’t succeed.
On the claim for breach of the honour of the Crown, the majority overturned the lower court decisions and found that Canada’s conduct had been dishonourable. The honour of the Crown was engaged, as the claim involved reconciliation of Aboriginal rights with Crown sovereignty, as well as explicit constitutional obligations made to an Aboriginal group. The Crown made a constitutional promise to the claimants and was thus obliged to take a broad purposive approach to the interpretation of the promise and to act diligently to fulfill it. It found that the Crown had not done so.
The majority then considered whether the claims were statute barred or precluded due to the doctrine of laches. On this issue, the majority again overturned the lower court decisions. It held that limitations statutes cannot prevent courts from issuing declarations on the constitutionality of legislation. By extension, the majority held that limitations act also cannot prevent the courts from issuing a declaration on the constitutionality of the Crown’s conduct and that the principle of reconciliation demanded that the claim not be barred. Finally, on the issue of laches, the majority stated that the doctrine requires that a claimant prosecute a claim without undue delay. In this case the majority held that it would be unrealistic to suggest that the Métis sat on their rights. The Métis commenced the claim before section 35 was entrenched in the Constitution, and long before the honour of the Crown was elucidated in Haida. Moreover, Canada had not changed its position as a result of the delay.
Justices Rothstein and Moldaver agreed with the majority on the first two issues. However, they disagreed with the majority’s expansion of the honour of the Crown, at least as it was considered by the Court. In particular, Justices Rothstein and Moldaver expressed the view that the obligations on the Crown as found by the majority constituted “a new common law obligation.” From their perspective, this new obligation had not been considered by the courts below nor was it argued by the parties before the Court. The dissent expressed concern that this new obligation had the potential to expand Crown liability in unpredictable ways.
Justices Rothstein and Moldaver also disagreed with the majority’s conclusion on the limitation and laches issue. Even if the honour of the Crown was engaged, the dissent concluded that the claims would have been long ago barred by statutes of limitations and the doctrine of laches. Limitations and laches could not fulfill their policy purposes if they are not universally applied.
The direct implications of the Court’s decision are clear. Having been found in breach of its honour to the Métis in failing to fulfill a constitutional promise, the Court left it up to Canada to determine whether and how to respond.
From a broader perspective, at least the majority of the Court appears to be signalling that it considers the reconciliation of Aboriginal interests in broader Canadian society where constitutional promises have been made to be a significant issue and fundamental to the reconciliation process. The characterization of the children’s grant provisions as a constitutional promise allowed the Court to fashion an obligation to achieve this objective, and a finding that immunization of review of such conduct by limitations acts is impermissible. This may open up an avenue for other Aboriginal groups to pursue historic grievances where matters that can be characterized as constitutional promises have not been fulfilled. It remains to be seen whether this will promote or hinder the reconciliation process.