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 v. Earl Henderson, 2013 SCC 14

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, ithas consistently held that limitations periods apply to factual claims with constitutional elements. While limitations periods do not applyto prevent a court from declaring a statute unconstitutional, the Métis’ claim about unconstitutional statutes is moot. The remainingdeclaration sought concerns factual issues and alleged breaches of obligations which have always been subject to limitation periods.

Insuggesting that the goal of reconciliation must be given priority in the Aboriginal context, it appears that the majority has departed fromthe 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 ina sufficiently timely manner, and as breaches of fiduciary duty can be subject to laches, it would be fundamentally inconsistent to permitcertain claims based on the honour of the Crown to escape the imputation of laches.

Both branches of laches are satisfied: the Métishave knowingly delayed their claim by over a hundred years and in so doing have acquiesced to the circumstances and invited thegovernment to rely on that, rendering the prosecution of this action unreasonable. As to acquiescence, the trial judge found that theMétis 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 withthe common law approach to changes in the law. Delay in making the grants cannot be both the wrong alleged and the reason the Crowncannot access the defence of laches: laches are always invoked as a defence by a party alleged to have wronged the plaintiff. If assessingconscionability is reduced to determining if the plaintiff has proven the allegations, the defence of laches is rendered illusory.

Theimbalance in power between the Métis and the government did not undermine their knowledge, capacity or freedom to the extent requiredto prevent a finding of acquiescence. The inference that delays in the land grants caused the vulnerability of the Métis was neither madeby the trial judge nor supported by the record. In any event, laches are imputed against vulnerable people just as limitations periods areapplied against them.

As to reliance, had the claim been brought promptly, the unexplained delays referred to as evidence for the Crown actingdishonourably 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 ofpalpable 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 theMétis. Manifestly, the trial judge made findings of delay.

Nonetheless these findings and the evidence do not reveal a pattern ofinattention, a lack of diligence, or that the purposes of the land grant were frustrated. That alone would nullify any claim the Métismight 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. Applied: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45,[2012] 2 S.C.R. 524; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; R. v.

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Winnipeg: Law Society of Manitoba, 2001, 203. Slattery, Brian. “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433. 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 andFreedman 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 Governor General in Council, to make all such provisions for ascertaining and adjusting, on fair and equitable terms, the rights of Common, and rights of cutting Hay held and enjoyed by the settlers in the Province, and for the commutation of the same by grants of land from the Crown. [ 13 ] 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.

The appellants seek to have the statutes declared ultra vires pursuant to the Constitution Act, 1867 . Alternatively, they argue that the statutes were inoperative by virtue of federal paramountcy. III. Judicial Decisions [ 14 ] The trial judge, MacInnes J. (as he then was), engaged in a thorough review of the facts: 2007 MBQB 293 , 223 Man. R. (2d) 42. He found that while dishonesty and bad faith were not established, government error and inaction led to lengthy delay in implementing ss. 31 and 32, and left 993 Métis children who were entitled to a grant with scrip instead of land.

However, he 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. The trial judge took the view that a fiduciary duty required proof that the Aboriginal people held the land collectively prior to 1870. Since the evidence established only individual landholdings by the Métis, their claim was “fundamentally flawed”.

He said of the action that “[i]t seeks relief that is in essence of a collective nature, but is underpinned by a factual reality that is individual”: para. 1197. [ 15 ] The trial judge concluded that, in any event, the claim was barred by The Limitation of Actions Act and the doctrine of laches. He also found that Manitoba’s various legislative initiatives regarding the land grants were constitutional. Finally, he held

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. [ 16 ] A five-member panel of the Manitoba Court of Appeal, per Scott C.J.M., dismissed the appeal: 2010 MBCA 71 , 255 Man. R. (2d) 167. It 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.

However, the court found it unnecessary to determine whether the Crown in fact owed a fiduciary duty to the Métis, since the trial judge’s findings of fact concerning the conduct of the Crown did not support any breach of such a duty. [ 17 ] The Court of Appeal also rejected the assertion that the honour of the Crown had been breached.

The honour of the Crown, in its view, was subsidiary to the fiduciary claim and did not itself give rise to an independent duty in this situation. [ 18 ] Finally, the court held that the Métis’ claim for a declaration was, in any event, statute-barred, and that the issue of the constitutional validity of the Manitoba legislation was moot. It also declined to interfere with the trial judge’s discretionary decision to deny standing to the MMF. IV. Facts [ 19 ] This appeal concerns events that occurred over a century ago.

Despite the difficulties imposed by the lack of live witnesses and distant texts, the trial judge made careful and complete findings of fact on all the elements relevant to the legal issues. The Court of Appeal thoroughly reviewed these findings and, with limited exceptions, confirmed them. [ 20 ] The completeness of these findings, which stand largely unchallenged, make it unnecessary to provide a detailed narrative of the Métis people, the Red River Settlement, and the conflict that gave rise to the Manitoba Act and Manitoba’s entry into Canada — events that have inspired countless tomes and indeed, an opera.

We content ourselves with a brief description of the origins of the Red River Settlement and the events that give rise to the appellants’ claims. [ 21 ] The story begins with the Aboriginal peoples who inhabited what is now the province of Manitoba — the Cree and other less populous nations. In the late 17th century, European adventurers and explorers passed through. The lands were claimed nominally by England which granted the Hudson’s Bay Company, a company of fur traders operating out of London, control over a vast territory called Rupert’s Land, which included modern Manitoba.

Aboriginal peoples continued to occupy the territory. In addition to the original First Nations, a new Aboriginal group, the Métis, arose — people descended from early unions between European adventurers and traders, and Aboriginal women. In the early days, the descendants of English-speaking parents were referred to as half- breeds, while those with French roots were called Métis. [ 22 ] A large — by the standards of the time — settlement developed the forks of the Red and Assiniboine Rivers on land granted to Lord Selkirk by the Hudson’s Bay Company in 1811.

By 1869, the settlement consisted of 12,000 people, under the governance of the Hudson’s Bay Company. [ 23 ] In 1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centred on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg.

The Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government. [ 24 ] In the meantime, Upper Canada (now Ontario), Lower Canada (now Quebec), Nova Scotia and New Brunswick united under the British North America Act of 1867 (now Constitution Act, 1867 ) to become the new country of Canada. The country’s first government, led by Sir John A.

Macdonald, was intent on westward expansion, driven by the dream of a nation that would extend from the Atlantic to the Pacific and provide vast new lands for settlement. England agreed to cede Rupert’s Land to Canada. In recognition of the Hudson’s Bay Company’s interest, Canada paid it £300,000 and allowed it to retain some of the land around its trading posts in the Northwest.

In 1868, the Imperial Parliament cemented the deal with Rupert’s Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105. [ 25 ] Canada, as successor to the Hudson’s Bay Company, became the titular owner of Rupert’s Land and the Red River Settlement. However, the reality on the ground was more complex. The French-speaking Roman Catholic Métis 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.

When two survey parties arrived in 1869 to take stock of the land, the matter came to a head. [ 26 ] The surveyors were met with armed resistance, led by a French-speaking Métis, Louis Riel. On November 2, 1869, Canada’s proposed Lieutenant Governor of the new territory, William McDougall, was turned back by a mounted French Métis patrol. On the same day, a group of Métis, including Riel, seized Upper Fort Garry (now downtown Winnipeg), the Settlement’s principle fortification.

Riel called together 12 representatives of the English-speaking parishes and 12 representatives of the French-speaking Métis parishes, known as the “Convention of 24”. At their second meeting, he announced the French Métis intended to form a provisional government, and asked for the support of the English. The English representatives asked for time to confer with the people of their parishes. The meeting was adjourned until December 1, 1869. [ 27 ] When the meeting reconvened, they were confronted with a proclamation made earlier that day by McDougall that the region was under the control of Canada.

The group rejected the claim. The French Métis drafted a list of demands that Canada must satisfy before the Red River settlers would accept Canadian control. [ 28 ] The Canadian government adopted a conciliatory course. It invited a delegation of “at least two residents” to Ottawa to present the demands of the settlers and confer with Parliament. The provisional government responded by delegating a priest, Father Ritchot, a judge, Judge Black, and a local businessman named Alfred Scott to go to Ottawa.

The delegates — none of whom were Métis, although Riel nominated them — set out for Ottawa on March 24, 1870. [ 29 ] Canada had little choice but to adopt a diplomatic approach to the Red River settlers. As MacInnes J. found at trial:

Canada had no authority to send troops to the Settlement to quell the French Métis insurrection. Nor did it have the necessary troops. Moreover, given the time of year, there was no access to the Settlement other than through the United States. But, at the time, there was a concern in Canada about possible annexation of the territory by the United States and hence a reluctance on the part of Canada to seek permission from the United States to send troops across its territory to quell the insurrection and restore authority. [para. 78] [ 30 ] The delegates arrived in Ottawa on April 11, 1870.

They met and negotiated with Prime Minister Macdonald and the Minister of Militia and Defence, George-Étienne Cartier. The negotiations were part of a larger set of negotiations on the terms on which Manitoba would enter Canada as a province. It emerged that Canada wanted to retain ownership of public lands in the new province. This led to the idea of providing land for Métis children. The parties settled on a grant to Métis children of 1.4 million acres of land (s. 31) and recognition of existing landholdings (s. 32). Parliament, after vigorous debate and the failure of a motion to delete the

section providing the children’s grant, passed the Manitoba Act on May 10, 1870. [ 31 ] The delegates returned to the Red River Settlement with the proposal, and, on June 24, 1870, Father Ritchot addressed the Convention of 40, now called the Legislative Assembly of Assiniboia, to advocate for the adoption of the Manitoba Act . The Assembly was read a letter from Minister Cartier which promised that any existing land interest contemplated in s. 32 of the Manitoba Act could be converted to title without payment.

Minister Cartier guaranteed that the s. 31 children’s grants would “be of a nature to meet the wishes of the half-breed residents” and the division of grant land would be done “ in the most effectual and equitable manner ”: A.R., vol. XI, at p. 196 (emphasis added). On this basis, the Assembly voted to accept the Manitoba Act , and enter the Dominion of Canada. Manitoba became part of Canada by Order in Council of the Imperial government effective July 15, 1870. [ 32 ] The Canadian government began the process of implementing s. 31 in early 1871.

The first step was to set aside 1.4 million acres, and the second was to divide the land among the eligible recipients. A series of errors and delays interfered with accomplishing the second step in the “effectual” manner Minister Cartier had promised. [ 33 ] The first problem was the erroneous inclusion of all Métis, including heads of families, in the allotment, contrary to the terms of s. 31, which clearly provided the lands were to be divided among the children of the Métis heads of families.

On March 1, 1871, Parliament passed an Order in Council declaring that all Métis had a right to a share in the 1.4 million acres promised in s. 31 of the Manitoba Act . This order, which would have created more grants of smaller acreage, was made over the objections raised by McDougall, then the former Lieutenant Governor of Rupert’s Land, in the House of Commons. Nevertheless, the federal government began planning townships based on 140-acre lots, dividing the 1.4 million acres among approximately 10,000 recipients.

This was the first allotment. [ 34 ] In 1873, the federal government changed its position, and decided that only Métis children would be entitled to s. 31 grants. The government also decided that lands traditionally used for haying by the Red River settlers could not be used to satisfy the children’s land grant, as was originally planned, requiring additional land to be set aside to constitute the 1.4 million acres. The 1873 decision was clearly the correct decision. The problem is that it took the government over three years to arrive at that position.

This gave rise to the second allotment. [ 35 ] In November 1873, the government of Sir John A. Macdonald was defeated and a new Liberal government formed in early 1874. The new government, without explanation, did not move forward on the allotments until early 1875. The Liberal government finally, after questions in Parliament about the delay and petitions from several parishes, appointed John Machar and Matthew Ryan to verify claimants entitled to the s. 31 grants.

The process of verifying those entitled to grants commenced five years after the Manitoba Act was passed. [ 36 ] The next set of problems concerned the Machar/Ryan Commission’s estimate of the number of eligible Métis children. Though a census taken in 1870 estimated 7,000 Métis children, Machar and Ryan concluded the number was lower, at 5,088, which was eventually rounded up to 5,833 to allow for even 240-acre plots.

This necessitated a third and final allotment, which began in 1876, but was not completed until 1880. [ 37 ] 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. Initially, the Manitoba legislature moved to block sales of the children’s interests to speculators, but, in 1877, it passed legislation authorizing sales of s. 31 interests once the child obtained the age of majority, whether or not the child had received his or her allotment, or even knew of its location.

In 1878, Manitoba adopted further legislation which allowed children between 18 and 21 to sell their interests, so long as the transaction was approved by a judicial officer and the child’s parents. Dr. Thomas Flanagan, an expert who testified at trial, found returns on judicial sales were the poorest of any type of s. 31 sale: C.A., at para. 152. [ 38 ] Eventually, it became apparent that the Acting Agent of Dominion Lands, Donald Codd had underestimated the number of eligible Métis children — 993 more Métis children were entitled to land than Codd had counted on.

In 1885, rather than start the allotment yet a fourth time, the Canadian government provided by Order in Council that the children for whom there was no land would be issued with $240 worth of scrip redeemable for land. Fifteen years after the passage of the Manitoba Act , the process was finally complete. [ 39 ] The position of the Métis in the Red River Settlement deteriorated in the decades following Manitoba’s entry into Confederation. White settlers soon constituted a majority in the territory and the Métis community began to unravel. Many Métis sold their promised interests in land and moved further west.

Those left amounted to a small remnant of the original community. V. Issues [ 40 ] The appellants seek numerous declarations, including: (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. These claims give rise to the following issues:

A. Does the Manitoba Metis Federation have standing in the action? B. Is Canada in breach of a fiduciary duty to the Métis? C. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act? D. Were the Manitoba statutes related to implementation unconstitutional? E. Is the claim for a declaration barred by limitations? F. Is the claim for a declaration barred by laches? VI. Discussion A. Does the Manitoba Metis Federation Have Standing in the Action? [41] Canada and Manitoba take no issue with the private interest standing of the individual appellants.

However, theyargue that the MMF has no private interest in the litigation and fails the established test for public interest standing on the third step ofthe test set out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), (SCC), [1992]1 S.C.R. 236, as the individual plaintiffs clearly demonstrate another reasonable and effective manner for the case to be heard. [42] The courts below denied the MMF public interest standing to bring this action.

At trial, MacInnes J. found that theMMF would fail the third step of the test set out in Canadian Council of Churches, on the ground that the individual plaintiffsdemonstrate another reasonable and effective manner for the case to be heard. The Court of Appeal declined to interfere with MacInnesJ.’s discretionary standing ruling. [43] The courts below did not have the benefit of this Court’s decision in Canada (Attorney General) v. DowntownEastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. In that case, the Court rejected a strictapproach to the third requirement for standing.

The presence of other claimants does not necessarily preclude public interest standing;the question is whether this litigation is a reasonable and effective means to bring a challenge to court. The requirements for publicinterest standing should be addressed in a flexible and generous manner, and considered in light of the underlying purposes of settinglimits on who has standing to bring an action before a court.

Even if there are other plaintiffs with a direct interest in the issue, a courtmay consider whether the public interest plaintiff will bring any particularly useful or distinct perspective to the resolution of the issue athand. [44] As discussed below, the action advanced is not a series of claims for individual relief. It is rather a collective claimfor declaratory relief for the purposes of reconciliation between the descendants of the Métis people of the Red River Valley andCanada. The Manitoba Act provided for individual entitlements, to be sure.

But that does not negate the fact that the appellants advancea collective claim of the Métis people, based on a promise made to them in return for their agreement to recognize Canada’s sovereigntyover them. This collective claim merits allowing the body representing the collective Métis interest to come before the Court. We wouldgrant the MMF standing. [45] For convenience, from this point forward in these reasons, we will refer to both the individual plaintiffs and theMMF collectively as “the Métis”. B. Is Canada in Breach of a Fiduciary Duty to the Métis?

(1) When a Fiduciary Duty May Arise [46] The Métis say that Canada owed them a fiduciary duty to implement ss. 31 and 32 of the Manitoba Act as theirtrustee. This duty, they say, arose out of their Aboriginal interest in lands in Manitoba, or directly from the promises made in ss. 31 and32. [47] Fiduciary duty is an equitable doctrine originating in trust. Generally speaking, a fiduciary is required to act in thebest interests of the person on whose behalf he is acting, to avoid all conflicts of interest, and to strictly account for all property held oradministered on behalf of that person.

See Lac Minerals Ltd. v. International Corona Resources Ltd., (SCC), [1989] 2S.C.R. 574, at pp. 646-47. [48] The relationship between the Métis and the Crown, viewed generally, is fiduciary in nature. However, not alldealings between parties in a fiduciary relationship are governed by fiduciary obligations. [49] In the Aboriginal context, a fiduciary duty may arise as a result of the “Crown [assuming] discretionary control overspecific Aboriginal interests”: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18.

The focus is on the particular interest that is the subject matter of the dispute: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002]4 S.C.R. 245, at para. 83.

The content of the Crown’s fiduciary duty towards Aboriginal peoples varies with the nature and importanceof the interest sought to be protected: Wewaykum, at para. 86. [50] A fiduciary duty may also arise from an undertaking, if the following conditions are met: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person orclass of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of thebeneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

(Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36)

(2) Did the Métis Have a Specific Aboriginal Interest in the Land Giving Rise to a Fiduciary Duty? [51] As discussed, the first way a fiduciary duty may arise is where the Crown administers lands or property in whichAboriginal peoples have an interest: Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, at p. 384.

The duty arises ifthere is (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest: Wewaykum, at paras. 79-83; Haida Nation, at para. 18. [52] There is little dispute that the Crown undertook discretionary control of the administration of the land grants underss. 31 and 32 of the Manitoba Act, meeting the second requirement. The issue is whether the first condition is met — is there a “specificor cognizable Aboriginal interest”? The trial judge held that the Métis failed to establish a specific, cognizable interest in land.

TheCourt of Appeal found it unnecessary to decide the point, in view of its conclusion that in any event, no breach was established. [53] The fact that the Métis are Aboriginal and had an interest in the land is not sufficient to establish an Aboriginalinterest in land. The interest (title or some other interest) must be distinctly Aboriginal; it must be a communal Aboriginal interest in theland 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 interestin the ss. 31 or 32 land. [54] The Métis argue that s. 31 of the Manitoba Act confirms that they held a pre-existing specific Aboriginal interest inthe land designated by s.

Section 31 states that the land grants were directed “towards the extinguishment of the Indian Title to thelands in the Province”, and that the land grant was for “the benefit of the families of the half-breed residents”. This language, the Métisargue, acknowledges that the Métis gave the Crown control over their homeland in the Red River Settlement in exchange for a number ofprovisions in the Manitoba Act, a constitutional document.

The Métis say speeches in the House of Commons by the framers of theManitoba Act, Prime Minister Macdonald and George-Étienne Cartier, confirm that the purpose of s. 31 was to extinguish the “IndianTitle” of the Métis. The Métis urge that the Manitoba Act must be read broadly in light of its purpose of bringing Manitoba peaceablyinto Confederation and assuring a future for the Métis as landholders and settlers in the new province: see R. v. Blais, 2003 SCC 44,[2003] 2 S.C.R. 236, at para. 17. [55] Canada replies that s. 31 does not establish pre-existing Aboriginal interest in land.

It was an instrument directed atsettling grievances, and the reference to “Indian Title” does not establish that such title actually existed. It was up to the Métis to provethat they held an Aboriginal interest in land prior to the Manitoba Act, and they have not done so, Canada argues. Canada acknowledgesthat individual Métis people held individual parcels of land, but it denies that they held the collective Aboriginal interest necessary togive rise to a fiduciary duty. [56] The trial judge’s findings are fatal to the Métis’ argument.

He found as a fact that the Métis used and held landindividually, rather than communally, and permitted alienation. He found no evidence that the Métis asserted they held Indian title whenBritish leaders purported to extinguish Indian title, first in the Settlement belt and then throughout the province. He found that the RedRiver Métis were descended from many different bands. While individual Métis held interests in land, those interests arose from theirpersonal history, not their shared Métis identity.

Indeed the trial judge concluded Métis ownership practices were incompatible with theclaimed 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 anddemanding proof of a collective Aboriginal interest in land.

They assert that Aboriginal title was historically uncertain, and that theCrown’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 ofthe Manitoba Act. [58] Even if this was the Crown’s practice (a doubtful assumption in the absence of supporting evidence), it does notestablish that the Métis held either Aboriginal title or some other Aboriginal interest in specific lands as a group. An Aboriginal interestin land giving rise to a fiduciary duty cannot be established by treaty, or, by extension, legislation.

Rather, it is predicated on historic useand occupation. As Dickson J. stated in Guerin: The “political trust” cases concerned essentially the distribution of public funds or other property held by the government. In each casethe party claiming to be beneficiary under a trust depended entirely on statute, ordinance or treaty as the basis for its claim to an interestin the funds in question. The situation of the Indians is entirely different.

Their interest in their lands is a pre-existing legal right notcreated by Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive or legislative provision. [Emphasis added; p.379.] [59] In

summary, the words of s. 31 do not establish pre-existing communal Aboriginal title held by the Métis. Nor doesthe evidence: the trial judge’s findings of fact that the Métis had no communal Aboriginal interest in land are fatal to this contention. Itfollows that the argument that Canada was under a fiduciary duty in administering the children’s land because the Métis held anAboriginal interest in the land must fail. The same reasoning applies to s. 32 of the Manitoba Act.

(3) Did the Crown Undertake to Act in the Best Interests of the Métis, Giving Rise to a Fiduciary Duty? [60] This leaves the question of whether a fiduciary duty is established on the basis of an undertaking by the Crown. Torecap, this requires: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person orclass of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of thebeneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

(Elder Advocates, at para. 36) [61] The first question is whether an undertaking has been established. In order to elevate the Crown’s obligations to afiduciary level, the power retained by the Crown must be coupled with an undertaking of loyalty to act in the beneficiaries’ best interestsin the nature of a private law duty: Guerin, at pp. 383-84.

In addition, “[t]he party asserting the duty must be able to point to a forsakingby the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest atstake”: Elder Advocates, at para. 31. [62] While s. 31 shows an intention to benefit the Métis children, it does not demonstrate an undertaking to act in theirbest interests, in priority to other legitimate concerns, such as ensuring land was available for the construction of the railway and openingManitoba for broader settlement.

Indeed, the discretion conferred by s. 31 to determine “such mode and on such conditions as tosettlement and otherwise” belies a duty of loyalty and an intention to act in the best interests of the beneficiary, forsaking all otherinterests. [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 Métislandholders.

It confirmed the continuance of different categories of landholdings in existence shortly before or at the creation of the newprovince (C.A., at paras. 673 and 717), and applied to all landholders (C.A., at para. 717; see also paras. 674 and 677).

(4) Conclusion on Fiduciary Duty [64] We conclude that Canada did not owe a fiduciary duty to the Métis in implementing ss. 31 and 32 of the ManitobaAct. C. Did Canada Fail to Comply With the Honour of the Crown in the Implementation of Sections 31 and 32 of the Manitoba Act?

(1) The Principle of the Honour of the Crown [65] The appellants argue that Canada breached a duty owed to the Métis based on the honour of the Crown. The phrase“honour of the Crown” refers to the principle that servants of the Crown must conduct themselves with honour when acting on behalf ofthe sovereign. [66] The honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de factocontrol of land and resources that were formerly in the control of that people”: Haida Nation, at para. 32.

In Aboriginal law, the honourof the Crown goes back to the Royal Proclamation of 1763, which made reference to “the several Nations or Tribes of Indians withwhom We are connected, and who live under our Protection”: see Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42. This “Protection”, though, did not arise from a paternalistic desire to protect the Aboriginal peoples;rather, it was a recognition of their strength. Nor is the honour of the Crown a paternalistic concept.

The comments of Brian Slatterywith respect to fiduciary duty resonate here: The sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a “weaker” or “primitive” people, as hassometimes been suggested, but rather in the necessity of persuading native peoples, at a time when they still had considerable militarycapacities, that their rights would be better protected by reliance on the Crown than by self-help. (“Understanding Aboriginal Rights” (1987), 66 Can.

Bar Rev. 727, at p. 753) The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crownsovereignty. As stated in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3S.C.R. 550, at para. 24: The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined ins. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles.

Section 35(1) has, as one of itspurposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably,in accordance with its historical and future relationship with the Aboriginal peoples in question. [67] The honour of the Crown thus recognizes the impact of the “superimposition of European laws and customs” on pre-existing Aboriginal societies: R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, at para. 248, per McLachlin J.,dissenting.

Aboriginal peoples were here first, and they were never conquered (Haida Nation, at para. 25); yet, they became subject to alegal system that they did not share. Historical treaties were framed in that unfamiliar legal system, and negotiated and drafted in aforeign language: R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 52; Mitchell v. Peguis Indian Band, (SCC), [1990] 2 S.C.R. 85, at pp. 142-43, per La Forest J. The honour of the Crown characterizes the “special relationship” thatarises out of this colonial practice: Little Salmon, at para. 62.

As explained by Brian Slattery: . . . when the Crown claimed sovereignty over Canadian territories and ultimately gained factual control over them, it did so in the faceof pre-existing Aboriginal sovereignty and territorial rights. The tension between these conflicting claims gave rise to a specialrelationship between the Crown and Aboriginal peoples, which requires the Crown to deal honourably with Aboriginal peoples. (“Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 436)

(2) When Is the Honour of the Crown Engaged?

[68] The honour of the Crown imposes a heavy obligation, and not all interactions between the Crown and Aboriginalpeople engage it. In the past, it has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crownsovereignty. As stated in Badger: . . . the honour of the Crown is always at stake in its dealing with Indian people.

Interpretations of treaties and statutory provisionswhich have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. [para. 41] [69] This Court has also recognized that the honour of the Crown is engaged by s. 35(1) of the Constitution Act, 1982. InR. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, the Court found that s. 35(1) restrains the legislative power in s. 91(24), inaccordance with the “high standard of honourable dealing”: p. 1109.

In Haida Nation, this Court explained that “[i]t is a corollary of s.35 that the Crown act honourably in defining the rights it guarantees”: para. 20. Because of its connection with s. 35, the honour of theCrown has been called a “constitutional principle”: Little Salmon, at para. 42. [70] The application of these precedents to this case indicates that the honour of the Crown is also engaged by an explicitobligation to an Aboriginal group that is enshrined in the Constitution.

The Constitution is not a mere statute; it is the very document bywhich the “Crow[n] assert[ed its] sovereignty in the face of prior Aboriginal occupation”: Taku River, at para. 24. See also Mitchell v.M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9. It is at the root of the honour of the Crown, and an explicit obligation to anAboriginal group placed therein engages the honour of the Crown at its core.

As stated in Haida Nation, “[i]n all its dealings withAboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must acthonourably”: para. 17 (emphasis added). [71] An analogy may be drawn between such a constitutional obligation and a treaty promise. An “intention to createobligations” and a “certain measure of solemnity” should attach to both: R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, at p.1044; R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, at paras. 24-25.

Moreover, both types of promises are made for theoverarching purpose of reconciling Aboriginal interests with the Crown’s sovereignty. Constitutional obligations may even be arrived atafter a course of consultation similar to treaty negotiation. [72] The last element under this rubric is that the obligation must be explicitly owed to an Aboriginal group. The honourof the Crown will not be engaged by a constitutional obligation in which Aboriginal peoples simply have a strong interest. Nor will it beengaged by a constitutional obligation owed to a group partially composed of Aboriginal peoples.

Aboriginal peoples are part of Canada,and they do not have special status with respect to constitutional obligations owed to Canadians as a whole. But a constitutionalobligation explicitly directed at an Aboriginal group invokes its “special relationship” with the Crown: Little Salmon, at para. 62.

(3) What Duties Are Imposed by the Honour of the Crown? [73] The honour of the Crown “is not a mere incantation, but rather a core precept that finds its application in concretepractices” and “gives rise to different duties in different circumstances”: Haida Nation, at paras. 16 and 18. It is not a cause of actionitself; rather, it speaks to how obligations that attract it must be fulfilled. Thus far, the honour of the Crown has been applied in at leastfour situations:

(1) The honour of the Crown gives rise to a fiduciary duty when the Crown assumes discretionary control over a specific Aboriginalinterest (Wewaykum, at paras. 79 and 81; Haida Nation, at para. 18);

(2) The honour of the Crown informs the purposive

interpretation of s. 35 of the Constitution Act, 1982, and gives rise to a duty toconsult when the Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest (Haida Nation, atpara. 25);

(3) The honour of the Crown governs treaty-making and implementation (Province of Ontario v. Dominion of Canada (1895), 1895CanLII 112 (SCC), 25 S.C.R. 434, at p. 512, per Gwynne J., dissenting; Mikisew Cree First Nation v. Canada (Minister of CanadianHeritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 51), leading to requirements such as honourable negotiation and the avoidance ofthe appearance of sharp dealing (Badger, at para. 41); and

(4) The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutorygrants to Aboriginal peoples (R. v. Marshall, (SCC), [1999] 3 S.C.R. 456, at para. 43, referring to The Case of TheChurchwardens of St. Saviour in Southwark (1613), 10 Co. Rep. 66b, 77 E.R. 1025, and Roger Earl of Rutland’s Case (1608), 8 Co. Rep.55a, 77 E.R. 555; Mikisew Cree First Nation, at para. 51; Badger, at para. 47). [74] Thus, the duty that flows from the honour of the Crown varies with the situation in which it is engaged.

Whatconstitutes honourable conduct will vary with the circumstances. [75] By application of the precedents and principles governing this honourable conduct, we find that when the issue isthe implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes abroad purposive approach to the

interpretation of the promise; and (2) acts diligently to fulfill it. [76] The first branch, purposive

interpretation of the obligation, has long been recognized as flowing from the honour ofthe Crown. In the constitutional context, this Court has recognized that the honour of the Crown demands that s. 35(1) be interpreted in agenerous manner, consistent with its intended purpose. Thus, in Haida Nation, it was held that, unless the recognition and affirmation ofAboriginal rights in s. 35 of the Constitution Act, 1982 extended to yet unproven rights to land, s. 35 could not fulfill its purpose ofhonourable reconciliation: para. 27.

The Court wrote, at para. 33: “When the distant goal of proof is finally reached, the Aboriginalpeoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.” A purposive approachto

interpretation informed by the honour of the Crown applies no less to treaty obligations. For example, in Marshall, Binnie J. rejecteda proposed treaty

interpretation on the grounds that it was not “consistent with the honour and integrity of the Crown. . . . The tradearrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown”: para. 52.

[ 77 ] This jurisprudence illustrates that an honourable

interpretation of an obligation cannot be a leg

[…]