A Duty of Diligent Fulfillment? SCC Rules that Land Grants to Métis Children Breached Honour of Crown
Canada breached the Honour of the Crown in the manner in which it distributed parcels of land to the children of the Métis people of Manitoba in the 1870s, according to a majority of the Supreme Court of Canada. The Court’s 6-2 decision in Manitoba Métis Federation Inc. v. Canada (Attorney General) has the potential to spur major negotiations between Canada and the Métis people over vast tracts of land in Manitoba, including what now comprises modern-day Winnipeg. The decision may also have more wide-ranging implications for federal and provincial governments in their dealings with Aboriginal peoples.
Section 31 of the Manitoba Act, 1870 – referred to as the “children’s grant” provision – provided that Canada would grant 1.4 million acres of land in the new province of Manitoba to children of the existing heads of families of the Métis people. This provision was part of a constitutional statute aimed at bringing Manitoba peaceably into Confederation and assuring a future for the Métis as landholders and settlers in the new province.
In April 1981, the Manitoba Métis Federation and individual Métis claimants brought an action against the Attorney General of Canada and the Attorney General of Manitoba for declaratory relief. The Métis sought declarations including a declaration that: (1) in implementing the Act, the federal Crown breached its fiduciary obligations; and (2) the federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown. The trial judge and Manitoba Court of Appeal dismissed the action.
The Supreme Court of Canada reversed the decision of the Manitoba Court of Appeal. The Court was unanimous in dismissing the first argument (and dismissing a third argument based on invalidity of certain implementing statutes as moot). With respect to the first argument, s. 31 of the Act did not give rise to a fiduciary duty on the part of the Crown. The Métis did not have a “specific or cognizable Aboriginal interest” in the lands at issue. Both the majority and minority agreed that the interest of the Métis in the lands claimed did not arise from a shared distinct Métis identity or a pre-existing communal Aboriginal interest, and that the language of s. 31 was inconsistent with an undertaking on the part of the Crown to act in the best interest of the Métis children.
The Court split 6-2 on the second issue. The majority, in reasons written by McLachlin C.J. and Karakatsanis J., held that the Métis were entitled to a declaration that the federal Crown failed to act with diligence in implementing the children’s grant provision in accordance with the honour of the Crown.
Rothstein and Moldaver JJ. delivered a scathing dissent authored by Rothstein J. Rothstein J. accused the majority of mischaracterizing the facts and drawing unwarranted inferences from the evidence in terms of the extent of the Crown's delay in distributing land to the Métis and the effect of the delays. The minority held that that the “duty of diligent fulfillment” was nowhere to be found in Canadian law and represented an unwarranted expansion of the principle of the honour of the Crown. The minority also agreed with the findings of the trial judge and Court of Appeal that all of the claims advanced by the Métis were barred by the applicable limitations periods and the equitable doctrine of laches.
Manitoba Métis will likely spawn negotiations between the federal government and the Métis people of Manitoba over vast tracts of land in the province. The judgment may also have wider implications for dealings between Aboriginal peoples and federal and provincial governments.
As the minority held, the majority’s reasons in Manitoba Métis seem to create a new obligation on the part of the Crown to “diligently fulfill” obligations towards Aboriginal peoples. The circumstances in which this obligation is triggered were not fully explained by the majority. As Rothstein and Moldaver JJ. held, “the majority reasons are unclear as to what types of legal documents will give rise to solemn obligations: Is it only provisions in the Constitution or does it also include treaties? (para. 205). Furthermore, the nature of Crown conduct necessary to give rise to a breach of the duty was not fully canvassed. According to the majority, the obligation does not require that the government act in bad faith or in breach of its fiduciary duties. While not every “negligent act” will suffice, “a persistent pattern of inattention may do so if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained” (para. 107). It would seem that the meaning of “persistent pattern of inattention” and “satisfactory explanation” will have to be analyzed on a case-by-case basis. Furthermore, the majority did not comment on whether conduct of the Crown – other than delay or inattention in the fulfillment of a Crown obligation – may give rise to a cause of action.
The majority’s decision also has the effect of immunizing actions for declarations based on the honour of the Crown from statutory limitation periods and equitable defences such as laches. In Manitoba Métis, the Manitoba Limitation of Actions Act provided for a six-year limitation period for actions grounded on “accident, mistake or other equitable ground of relief”. The Act also provided for a six-year limitation period for any other action not specifically provided for. The majority did not interfere with the trial judge’s finding that the Métis discovered their claims more than six years before their action was commenced. (According to Rothstein and Moldaver JJ., the Métis’ claim had been statute-barred since at least 1937.) While the majority accepted that a claim for breach of fiduciary duty was a claim for “other equitable relief” – and thus statute-barred – it held that the Métis claim for a declaration based on the honour of the Crown in implementing s. 31 may nonetheless proceed. The reasoning of the majority on this point seemed to be predicated, not on legal principle, but on the political desirability of promoting a policy of reconciliation between Métis people and the Crown.
Date of Decision: March 8, 2013
duty of diligent fulfillment federal Crown fiduciary druty landholders Manitoba Court of Appeal Manitoba Métis Federation Métis specific or cognizable Aboriginal interest Supreme Court of Canada