May 2013 Māori Law Review
Manitoba Métis Federation (Inc) v Attorney-General (Canada): A step forward for indigenous rights jurisprudence and an opportunity for New Zealand
Manitoba Métis Federation (Inc) v Attorney-General (Canada)
Supreme Court of Canada [2013] SCC 14
8 March 2013
Max Harris examines the Supreme Court of Canada’s recent decision in Manitoba Métis Federation (Inc) v Attorney-General (Canada) where that Court further developed the doctrine of the honour of the Crown.
Download Manitoba Métis Federation (Inc) v Attorney-General (Canada) here.
Overview and result
A 6–2 majority of the Supreme Court of Canada has found that the Crown failed to act diligently in fulfilling a promise to the Métis people expressed in the Manitoba Act 1870, thereby violating the honour of the Crown. The claim was not barred by the law of limitations or the doctrine of laches. Accordingly, a declaration was issued to the effect that the Crown had failed to implement s 31 of the 1870 Act consistently with the honour of the Crown.
The decision is important in the context of Canadian indigenous rights jurisprudence. But its development of concepts such as “the honour of Crown”, and its approach to issues of limitations and delay, may also have particular relevance for historical claims made by Māori, despite the differences between the Canadian and New Zealand contexts. All those working on customary rights claims, land claims, and Treaty matters in Aotearoa New Zealand are therefore encouraged to read the Manitoba Métis decision carefully.
Background
In 1867 Canada was formed out of the union of United Canada (modern-day Ontario and Quebec), Nova Scotia, and New Brunswick – and the British North America Act 1867 was passed, now the Constitution Act 1867.
There was a desire amongst settlers to push further westwards. Some treaties were negotiated between settlers and indigenous peoples to achieve this purpose. In Manitoba, however, settlement was organized through the Manitoba Act 1870.
Manitoba comprised an 85% Métis population. The Métis are an indigenous group distinct from the First Nations, comprising descendants of early unions between European adventurers and traders, and Aboriginal women. The main Métis site, the Red River Settlement, resisted invasion by the Canadian government and called for negotiation.
This negotiation led to the 1870 Act. The legislation was affirmed by the local Manitoba legislative assembly. And, importantly, as a product of the negotiation, section 31 of the Act noted that 1.4 million acres of land would be granted to children of the Métis heads of families, “towards the extinguishment of the Indian title”. Section 32 arranged for the recognition of existing title.
However, errors and delays beset the division of this land. The land was divided amongst all 10,000 Métis in 1871, rather than just children of the heads of families; the government then revised its position in 1873 and aimed to divide the land amongst heads of families; there were further delays after disputes over the number of Métis children; and makeshift attempts were made to cater for children who had received no land once the allotments had been made by 1885.
The trial judge at first instance found that the Crown owed no fiduciary duty or duty based on the honour of the Crown to the Manitoba Métis in the context of what occurred between 1870 and 1885.
Land had been originally owned individually, not collectively, meaning no duty could be founded, said the judge. Statutes that followed the 1870 Act were also thought by the trial judge to be constitutional.
Further, the claim failed on procedural grounds: the law of limitations and the doctrine of laches barred the claim, and the Manitoba Métis Federation ought not to be granted public interest standing, since the claims could be brought individually.
A five-member panel of the Manitoba Court of Appeal affirmed the trial judge’s conclusions. While it disagreed that collective ownership of land was necessary to ground a fiduciary duty owed by the Crown to indigenous peoples, it found that there was manifestly no breach of any possible fiduciary duty. Moreover, the Court rejected any independent claim based on the honour of the Crown, and upheld the trial judge’s findings on limitations, laches, and standing.
The Manitoba Métis Federation pursued its claims for various declarations to the Supreme Court of Canada. The issues on appeal, as framed by the majority of the Supreme Court, were six-fold:
- whether the Manitoba Métis Federation could be granted standing;
- whether Canada breached a fiduciary duty owed to the Métis;
- whether Canada violated the honour of the Crown;
- whether Acts following the 1870 legislation were unconstitutional;
- whether the claim for declarations was limitations-barred; and,
- whether the doctrine of laches barred the claims.
Discussion
Standing
The lead majority judgment of McLachlin CJ and Karakatsanis J noted that there was an argument that public interest standing should not be granted to the Manitoba Métis Federation, since there were other claimants representing the same interests. However, applying the Court’s recent decision in Canada v Downtown Eastside Sex Workers United Against Violence [2012] 2 SCR 524, the majority judgment found that public interest standing requirements ought to be interpreted in a “flexible and generous manner”.
The Chief Justice and Karakatsanis J noted that if a group serves “a particularly useful or distinct perspective”, a favourable approach should be taken to granting public interest standing, even if other plaintiffs have a direct interest in the issue. The majority found that such a perspective was provided by the Manitoba Métis Federation: it was taking a collective claim for the purposes of reconciliation.
As a result, the majority disagreed with the findings of the courts below on standing. The dissenting judgment of Rothstein J (joined by Moldaver J) agreed with the majority on the issue of standing, making this conclusion unanimous.
Breach of fiduciary duty?
McLachlin CJ and Karakatsanis J noted that there were two possible triggers for the operation of fiduciary obligations between the Crown and the Métis: what might be called the “control-interest” trigger for fiduciary obligations; and the “undertaking-interest” trigger.
The first requires the Crown to:
- assume discretionary control,
- over specific Aboriginal interests.
There was an assumption of Crown control on the facts through the 1870 Act, but no specific pre-existing Aboriginal interest, said McLachlin CJ and Karakatsanis J; the interest was a creation of the 1870 Act.
As for the “undertaking-interest” trigger, what is required is:
- an undertaking to act in the best interests of
- a defined group, vulnerable to a fiduciary’s control, and
- a legal or practical interest that stands to be adversely affected by the exercise of such control.
Applying this test to the facts, the joint lead majority judgment held that there was no Crown undertaking to act in the best interests of the Métis as a matter of priority over other concerns – the legislation conferred a discretion. Hence no fiduciary duty existed on the facts.
The dissenting judgment of Rothstein and Moldaver JJ also agreed with this conclusion.
The honour of the Crown
The majority did, however, hold that there was a violation of the honour of the Crown.
The honour of the Crown requires servants of the Crown to conduct themselves with honour whenever acting on behalf of the Sovereign. It arose, said the majority judgment, from the Crown’s assertion of sovereignty over Aboriginal people in Canada and de facto control of lands, as demonstrated by Acts such as the Royal Proclamation of 1763, which expressed the need for protection of indigenous peoples in Canada.
The concept of the honour of the Crown developed out of the imposition of a foreign legal system, said the majority, which created a “special relationship” between the Crown and the Métis. The majority noted that the honour of the Crown is engaged in Crown dealings with Aboriginal people and when explicit obligations are undertaken to an Aboriginal group.
Far from being a novel concept in the law, the majority claimed that past case law demonstrated that the honour of the Crown could be a basis for fiduciary duties; a reason for the duty to consult to apply; a justification for honourable treaty-making; and an imperative to accomplish the purpose of treaty and statutory grants.
The concept is context-sensitive, but where a constitutional obligation to an Aboriginal group exists, the majority judgment found (at [75]) that the honour of the Crown requires:
- That the Crown takes a broad, purposive (and not overly legalistic) approach to the interpretation of a promise; and
- That the Crown acts diligently to fulfil the promise (avoiding, for instance, sharp dealing).
Not every mistaken or negligent act calls into question the honour of the Crown. But where there is a “persistent pattern of errors and indifference that substantially frustrates the purpose of a solemn promise”, the honour of the Crown will be violated (see [82]).
Examining this concept in the light of the facts, the Chief Justice and Karakatsanis J first considered the claim that the argument based on the honour of the Crown was not raised by the appellants (a point invoked by Rothstein J in dissent). Their judgment noted that the concept was at least implicit in arguments made, particularly by interveners.
Section 31 of the 1870 Act engaged the honour of the Crown, since it involved a solemn obligation of the Crown to a particular Aboriginal group. Section 32 (recognising existing title) did not engage the concept, as it was a general commitment to recognize the rights of all individuals.
For the honour of the Crown to be satisfied on the facts, the judgment said that prompt and equitable implementation of the promise in s 31 of the 1870 Act was required. Such prompt and equitable implementation in the allotment of lands to Métis did not occur. There was delay and persistent inattention by the Crown when time was of the essence (and while there was no bad faith, diligence on the part of the Crown requires more than an absence of bad faith, said the majority). Thus, the Crown’s conduct fell below the standard to be expected in the circumstances.
Minority – honour of the Crown as a “fiduciary duty-light” concept
As has been alluded to already, the two dissenting judges in the Supreme Court diverged from the majority on this cluster of issues. The dissent began by disagreeing with inferences drawn from the factual record, noting that while there was Crown delay in distributing land, there was not persistent inattention to the process, as found by the majority. The delay, said the dissent, was caused by care taken in making allotments, political changes, difficulties in conducting a census, and general administrative complications.
The judgment of Rothstein J hence started by expressing some sympathy with the position of the Crown in the 1870s in Manitoba, and counseled against applying modern standards of efficiency to past governments. Rothstein J went on to cast doubt on whether the negative consequences attributed by the majority to delay were really caused by delay.
Rothstein J objected more broadly, though, to the development of the concept of the honour of the Crown itself. The honour of the Crown requires a “solemn obligation”, but Rothstein J questioned what amounts to such an obligation. Moreover, Rothstein J questioned the criteria offered for when the honour of the Crown is engaged: namely, when a solemn obligation is engaged, and when it is owed to a specific Aboriginal group. This is to create a “fiduciary duty-light” concept, said Rothstein J, and a “significant expansion of Crown liability” (at [209]).
Rothstein J also took issue with the fact that arguments about the honour of the Crown had not been properly raised by the parties, meaning that the Crown had no opportunity to oppose the arguments. He described this as an “inroad into due process” (see [213]). There was no chance to consider the impact of the development of the honour of the Crown, rendering it an undesirable development.
Legislation that followed the 1870 Act
Later legislation passed from 1877–1885 was said to be unconstitutional by the appellants. But because this legislation was no longer in force and could have no future impact, the Court (through both the majority and minority judgments) found that their constitutionality was moot.
Limitation
The joint judgment held that while a claim for personal remedies might be barred by limitations periods, declarations as to constitutionality are not subject to the same restrictions. Because the case before the Court was not about personal claims – it sought declarations to assist in extra-judicial negotiations between the Crown and Métis – the Court was not precluded from issuing declarations. Breaches of fiduciary duty are generally subject to six-year limitation periods. But this was a case about a declaration for a violation of the honour of the Crown, said the Chief Justice and Karakatsanis J. Their Honours observed that higher constitutional purposes of reconciliation could not be held back by limitations statutes. The policies underlying the application of limitations periods did not apply: the claim was not stale; there were no third party legal interests at stake; and declaratory relief is a remedy with a narrow compass.
Minority – limitation
Rothstein J (joined by Moldaver J) stated that there was no principled basis for an exception to the application of limitations legislation. The claims were brought in 1981; the lapse in time was clearly beyond the usual six-year limitation. The bringing of past litigation by Métis representatives showed an awareness of their rights, and however framed, the case that was brought was a “cause of action” subject to limitations legislation.
Rothstein J accepted that there was generally an exception to limitations periods where the constitutional validity of a statute was in issue, but said that this exception should not be extended to declaratory relief of a constitutional nature (especially given that limitations legislation did not allow an exception for declaratory relief).
As well, limitations legislation should not be judicially circumvented, said the minority judgment. Policy reasons of certainty, lack of evidence, and diligence supported the conventional operation of limitations periods. Certainty, in particular, was imperiled in this case because of the possibility that extra-judicial negotiations would now be lengthened as a result of the Court’s judgment.
After considering the standard exceptions to the operation of limitations – based on discoverability and disability – Rothstein J noted that none applied on the facts. Interestingly, his Honour observed that some limitations legislation had exempted Aboriginal claims from “ultimate limitation periods” (limitation periods that applied regardless of exceptions), but he asserted that this proved that the issue was one for legislatures to consider, not the courts. Additionally, Rothstein J raised the spectre of indeterminate liability and observed that limitations periods do apply to cases involving the Crown, reinforcing the view that the claim should have been time-barred in this case.
Laches
Finally, the joint majority judgment considered the doctrine of laches, which requires that an equitable claim be prosecuted without undue delay and that acquiescence or a change of position during delay may compromise a claim. The majority judgment refused to accept that there was any evidence of acquiescence, though there had been a delay of over 100 years since the events in question. Further, the majority contended that there was no change of position. Accordingly, the equitable doctrine of laches did not apply to bar the Métis claims.
Minority – laches
The dissenting judgment also disagreed on this point. For Rothstein J, joined by Moldaver J, there was plainly acquiescence. His Honour accepted the historical injustices pointed to by the majority, but said that these had no impact on the Métis’ knowledge of their rights under the law. Indeed, the Métis, claimed Rothstein J, seemed to be well aware of legal avenues of redress, as evidenced in certain claims taken by members of the Métis community to the Privy Council in the late 19th century. His Honour objected to the argument that laches cannot apply to claims relating to the honour of the Crown.
Comment
This is a landmark decision in Canadian indigenous rights jurisprudence. The judgments in the case provide further evidence that the Supreme Court of Canada has positioned itself as an active facilitator of reconciliation between the Crown and indigenous peoples in that country. And Manitoba Métis is significant in its contribution both to substantive and procedural aspects of the law: it throws further light on fiduciary duties in an indigenous–Crown context, deepens the notion of the honour of the Crown, and also develops in interesting ways doctrines relating to standing, laches, and limitations.
This is not the place to offer a detailed assessment of the persuasiveness or otherwise of the majority and minority judgments; there are scholars of Canadian law in a better position to make such assessments. Nonetheless it is possible to make four brief evaluative points.
While the issue of standing was not the subject of disagreement amongst the judges, it is worth noting, first, that the reasoning on this point is somewhat threadbare. The broad thrust of the approach in Manitoba Métis – towards more flexible rules of public interest standing – is desirable to encourage the airing of perspectives when complex issues of indigenous rights arise. But there is perhaps a need to clarify how the “useful or distinct perspective” yardstick fits into the test that the Supreme Court of Canada has developed in the past on standing.
Secondly, the Court’s reasoning on the fiduciary duty issues does raise some questions about the application of fiduciary law in Canada (and perhaps in New Zealand) to indigenous peoples. Should it really be necessary for there to be a pre-existing Aboriginal interest for fiduciary obligations to apply? This seems to rule out the application of fiduciary law to modern, legislatively-created indigenous interests. Such a move may constrict the development of fiduciary law at a time when (in Canada and New Zealand) there have been numerous new legislative developments around indigenous customary rights, such as the Marine and Coastal Area (Takutai Moana) Act 2011.
Thirdly, the honour of the Crown analysis of the majority is promising – and appears to survive the scathing criticisms of the dissenting judgment. The cries of uncertainty from Rothstein J are unsurprising given the relative novelty of the concept of the honour of the Crown; the concept may simply need more time to be elaborated and refined.
Finally, on limitations and laches, the majority does well to avoid an overly technical or legalistic approach to issues of such constitutional importance. However, the dissenting judgment is useful in highlighting shortcomings in the approach. It may be that there will need to be further judicial consideration of exactly when exceptions to limitations and laches are to apply. That said, it seems convincing provisionally that – as the majority notes – if limitations periods do not apply to assessments of the constitutional validity of an Act, those same restrictions should not apply to declaratory relief relating to constitutional conduct. The majority judgment also provides cogent reasons why there was no change of position on the facts that might have prompted the intervention of the laches doctrine; the minority does not adequately rebut this claim.
Where this case is perhaps most interesting, though, for New Zealand scholars and practitioners, is in what it offers for the future path of indigenous rights jurisprudence in our country. The “honour of the Crown” has not received much attention in New Zealand law, and more work will need to be done to determine whether it is a concept most applicable to Canada. For instance, is the absence of a single codified constitution in New Zealand a significant distinction which precludes the operation of the “honour of the Crown” here? (A possible answer is that the difference between the two jurisdictions is overstated: as noted in cases such as Reference re Secession of Quebec [1998] 2 SCR 217, Canada’s constitution comprises written and unwritten parts, just like the New Zealand constitution, and so the absence of a wholly codified constitution is not a true point of distinction.) Notwithstanding the need for further work, it may be that threads of argument can be brought together to justify developing the “honour of the Crown” notion in New Zealand law: the 1839 Letters Patent and instructions to Governor Hobson could provide an analogue to the 1763 Royal Proclamation relied upon by the Court in Manitoba Métis, while the Treaty of Waitangi (in particular, its commitment to the protection of taonga in Article Two of the Māori version) could buttress this contention.
Only time will tell, too, whether the Supreme Court of Canada’s pronouncements on laches and limitations may come to influence New Zealand’s approach to these issues. We might expect the New Zealand Supreme Court to weigh in on these issues when it hands down judgment in Paki v Attorney-General (No 2) (heard on 19 and 20 February 2013) – and the Wakatū litigation, currently awaiting hearing before the Court of Appeal, offers a further opportunity for New Zealand appellate courts to consider this thought-provoking decision of the Supreme Court of Canada.
