Manitoba Métis Federation Inc. v. Canada

Citation: Manitoba Métis Federation Inc. v.

Date: 20100707

Canada (Attorney General) et al., 2010 MBCA 71

Docket: AI08-30-06872

IN THE COURT OF APPEAL OF MANITOBA

Coram:

Chief Justice Richard J. Scott

Mr. Justice Michel A. Monnin

Madam Justice Freda M. Steel

Madam Justice Barbara M. Hamilton

Mr. Justice Martin H. Freedman

B E T W E E N:

MANITOBA MÉTIS FEDERATION INC., )

T. R. Berger, Q.C.,

J. Aldridge, Q.C. and

H. I. Schachter

YVON DUMONT, BILLY JO DE LA

RONDE, ROY CHARTRAND, RON

ERICKSON, CLAIRE RIDDLE, JACK

FLEMING, JACK McPHERSON, DON

)

for the Appellants

ROULETTE, EDGAR BRUCE JR., FREDA )

R. A. Dewar, Q.C.,

P. R. Anderson and

C. D. Clark

for the Respondent

Attorney General of Canada

LUNDMARK, MILES ALLARIE, CELIA

KLASSEN, ALMA BELHUMEUR, STAN

GUIBOCHE, JEANNE PERRAULT,

MARIE BANKS DUCHARME and EARL

HENDERSON

)

H. S. Leonoff, Q.C. and

M. A. Conner

for the Respondent

(Plaintiffs) Appellants

- and -

Attorney General of Manitoba

ATTORNEY GENERAL OF CANADA and )

Appeal heard:

ATTORNEY GENERAL OF MANITOBA

)

February 17, 18, 19, 20,

23, 24, 25 and 26, 2009

(Defendants) Respondents

Judgment delivered:

July 7, 2010

Appeal from 2007 MBQB 293, 223 Man.R. (2d) 42

See 2008 MBCA 131, 231 Man.R. (2d) 178; 2009 MBCA 17, 236 Man.R. (2d) 84

TABLE OF CONTENTS

Page

2

PART I

OVERVIEW

PART II

HISTORICAL BACKGROUND ..…………………………………...

6

II.1

II.2

II.3

II.4

Introduction ………………………….……………………………….

The Red River Settlement ……………………………………….…..

The Red River Resistance ………………………………………….…

The Delegates in Ottawa:

6

7

12

The Birth of Sections 31 and 32 of the Act ……………………….…..

The Implementation of Sections 31 and 32 (Post-July 15, 1870) .........

18

25

II.5

PART III

SECTION 31 ………………………………………………………….. 54

The Trial Judge’s Findings ……………………………………….…… 54

The Appellants’ Position Re Section 31 ………………………….…… 60

The Respondents’ Position Re Section 31 ………………………….…. 63

III.1

III.2

III.3

III.4

III.5

III.6

III.7

III.7.1

III.7.2

How to Approach the Historical Documentary Evidence ………..……

Burden of Proof……………………………………………….……….

Standard of Review ………………………………………….………..

Analysis and Decision ……………………………………….………...

63

65

72

76

Discretionary Nature of Declaratory Relief …………………………… 79

Standing ………………………………………………………………... 81

(a)

(b)

Positions of the Parties Re Standing …………..…………... 82

Conclusion Re Standing ……………………….…….…..... 84

III.7.3

Limitations …………………………………………………………….. 88

(a)

(b)

The Appellants’ Position ……………………..……………

Canada’s Position ……………………………………….…

90

91

(c)

Manitoba’s Position …...………….……………..………… 93

(d)

(e)

(f)

Standard of Review …………………………….………….

Conclusion Re Limitations ………………………………..

Equitable Fraud …………………………………................

94

95

99

(f)(i)

(f)(ii)

(g)

Positions of the Parties …………………………………… 100

Governing Legal Principles …………………………......... 100

The Application of Limitation Periods to

Claims Alleging Constitutional Invalidity ………………… 103

III.7.4

Laches ……………………………………………………….………… 107

(a)

(b)

(c)

The Trial Judge’s Findings …..………….……….………... 107

The Appellants’ Position ………………….………………. 110

Canada’s Position ……………………………….………… 111

ii

(d)

(e)

(f)

Manitoba’s Position ………………………………………. 112

Standard of Review ……………………………………….. 114

An Overview of the Doctrine of Laches …………………. 114

The Application of Laches to Claims Seeking

(g)

Declaratory Relief ………………………………………… 118

The Application of Laches to Constitutional Claims …....... 120

(h)

III.7.5

Mootness ……………………………………………………………… 122

(a)

(b)

(c)

(d)

The Trial Judge’s Findings …………………………..…..... 123

Positions of the Parties ………………………………..…… 124

Governing Legal Principles …………………………..……. 125

Conclusion Re Mootness …………………………………... 130

III.7.6

III.7.7

The Métis are Aboriginal ……………………………………………… 132

Honour of the Crown ………………………………………………….. 135

(a)

(b)

(c)

(d)

The Trial Judgment …………………………………..……. 135

The Appellants’ Position …………………………….……. 137

Canada’s Position ………………………………….……… 139

The Honour of the Crown and

Sections 31 and 32 of the Act …………………………..…. 141

III.7.8

III.7.9

Fiduciary Relationship ………………………………………………… 150

Fiduciary Duty ………………………………………………………… 156

(a)

(b)

(c)

(d)

The Trial Judgment …………………………………..……. 156

The Appellants’ Position …………………………..……… 159

Canada’s Position …………………………………..……… 161

The Two-Part Test for Finding a Fiduciary Obligation

Within the Crown-Aboriginal Fiduciary Relationship ….… 162

Part I of the Fiduciary Duty Test:

(e)

Cognizable or Special Aboriginal Interest …………….….. 167

Is Aboriginal Title an Essential Component

(e)(i)

of a Cognizable Aboriginal Interest? ………………….….. 168

Conclusion Re Aboriginal Title and Cognizable Interest …. 175

Part II of the Fiduciary Duty Test: Crown Discretion …….. 179

Standard of Conduct and Content of the Fiduciary Duty .… 187

Standard of Conduct …………………………………….… 188

Role of the Best Interests of the Child ………………….… 188

It is the Conduct Itself that is to be Measured,

(e)(ii)

(f)

(g)

(g)(i)

(g)(ii)

(g)(iii)

Not the Result, and Not in Hindsight ………………….….. 191

Role of Representations Made by the Fiduciary ………..… 192

Role of Métis Hardship ……………………………….…... 193

Recognizing the Crown’s Unique Role as a Fiduciary ….... 194

(g)(iv)

(g)(v)

(g)(vi)

iii

(g)(vii)

Summary of Guiding Principles ………………………….. 195

(g)(viii) Inadvertence or Ineptitute …………………………….…... 196

(g)(ix)

(g)(x)

(g)(xi)

(g)(xii)

Was the Standard Breached? ……………………………... 197

Trial Judge’s Findings ……………………………………. 198

Appellants’ Position ……………………………………… 202

Canada’s Position With Respect to the “Breach” Issues …. 210

(g)(xiii) No Breaches of Fiduciary Duty Were Proven ……………. 212

PART IV

SECTION 32 ………………………………………………………….. 227

IV.1

IV.2

IV.3

IV.4

IV.4.1

The Trial Judgment ………………………………………………..….. 234

The Appellants’ Position …………………………………………..…. 235

Canada’s Position ………………………………………………….…. 237

Analysis and Decision Re Fiduciary Obligations and Section 32 ……. 239

Whether Section 32 Engages the Crown-Aboriginal

Fiduciary Relationship ………………………………………………… 239

Was a Public Law Fiduciary Duty Owed in

IV.4.2

the Administration of Section 32? ……………………………………... 242

PART V

SUMMARY AND CONCLUSION ...................................................... 248

Page 2

SCOTT C.J.M.

PART I

OVERVIEW

1

Manitoba’s birth as a province took place on July 15, 1870, following

passage of the Manitoba Act 1870, S.C. (33 Vict.), c. 3 (the Act), the

constitutional document by which Manitoba entered Confederation. By

virtue of s. 31 of the Act, a grant of 1.4 million acres was made in the new

province “towards the extinguishment of the Indian Title … for the benefit

of the families of the half-breed residents,” to be selected and divided among

their children by the Lieutenant Governor pursuant to regulation.

2

3

Section 32 of the Act was intended to quiet title and assure to the

settlers recognition of their existing property rights.

Sections 31, 32 and 33 of the Act state:

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.

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:

Page 3

(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.

33

The Governor General in Council shall from time to time settle

and appoint the mode and form of Grants of Land from the Crown, and

any Order in Council for that purpose when published in the Canada

Gazette, shall have the same force and effect as if it were a portion of

this Act.

4

In 1981, the appellants commenced these proceedings. They seek a

declaration that Canada breached the fiduciary obligation it owed to the

Métis of Manitoba by the manner in which it implemented ss. 31 and 32 of

Page 4

the Act. They request this declaration to assist their future negotiations to

achieve a land claims agreement. They submit and seek to correct a claimed

historic injustice, caused they say by Canada and Manitoba’s failure to

implement ss. 31 and 32 of the Act as they ought to have been.

5

The appellants claim that the federal Crown had a fiduciary obligation

under both ss. 31 and 32 to act in the Métis’ best interests, which duty was

breached in a number of ways. Grants under s. 31 should have been made

promptly, grouped according to family; all children should have received

grants upon attaining majority, their land being protected from speculators in

the meantime. With respect to s. 32, the appellants say that there was great

delay and Canada failed to implement the section in a “liberal manner.”

6

7

The appellants also submit that Manitoba passed unconstitutional

legislation which exacerbated the breach of fiduciary duty.

The trial judge dismissed the appellants’ action declining on factual

and legal grounds to grant the declaratory relief requested. He found that the

action was barred by the limitation period or laches. He concluded that the

Manitoba Métis Federation did not have standing. He found that there was

no Aboriginal title held by the Métis, no fiduciary duty owed by the Crown

under s. 31 of the Act, and no breach of the Act.

8

9

The trial judge also found that there was no fiduciary duty or

obligation with respect to s. 32, and that the Crown had not erred in its

implementation of the section.

Manitoba’s legislative initiatives, he held, were not unconstitutional.

Page 5

10

11

12

While many important issues were argued on this appeal, it is first

necessary to determine whether the entire proceedings are barred by the

provisions of The Limitation of Actions Act, C.C.S.M., c. L150, or by the

doctrine of laches or mootness. I conclude that the appellants’ action is

barred by the combined operation of the limitation period/laches/mootness.

This finding brings an end to the matter. But given the uniqueness

and importance of the issues raised in this appeal, it is desirable to consider

whether the Crown owed a fiduciary obligation to the Métis and, if so,

whether the appellants succeeded in proving a breach of the asserted

fiduciary duty.

A brief summary of my conclusions concerning ss. 31 and 32 of the

Act are:

a) The trial judge’s exercise of his judicial discretion not to grant

declaratory relief should not be interfered with.

b) Even if a fiduciary duty was owed by Canada with respect to s. 31

of the Act, the appellants have failed to prove there was a breach of

fiduciary duty in any respect.

c) No fiduciary duty or obligation was owed to the Métis with respect

to s. 32 of the Act.

13

I therefore agree with the trial judge’s disposition of the action. The

appeal should be dismissed.

Page 6

PART II

HISTORICAL BACKGROUND

II.1 Introduction

14

15

Since at its root, this action is dependent on its historical facts, a

detailed review of the evidence presented is essential.

It is self-evident, given the passage of time since enactment of the Act

in 1870, that the factual foundation for this historic action depends entirely

on the surviving documentary record.

16

When considering the extensive historical chronology that follows, it

is important to keep in mind the cautionary note expressed by the trial judge

near the beginning of his judgment (paras. 20, 22) that “[a]ll of the surviving

sources need to be read in the light of the biases of their authors” (per

Catherine Macdonald, “Report on the Events of the Red River Resistance of

1869-70” (March 2004) at p. 3). A primary example is the diary kept by

Abbé Noel-Joseph Ritchot during the discussions in Ottawa in April/May

1870 between the Red River delegates (the delegates), Prime Minister John

A. Macdonald and George Cartier (Macdonald and Cartier) that led to

passage of the Act. His diary, which is the only chronicle in existence of

their momentous meetings, contains blanks – caused it would appear by

illegible handwriting. It was written by a person described by Ms

Macdonald as “devoted to the cause of the people he adopted,” who played a

significant role in the events in the settlement that led up to the historic

discussions.

17

Other sources are incomplete; for example, parliamentary debates

Page 7

were not always reported verbatim in the first years of Canada’s existence,

extending beyond 1870. Thus, “even the plaintiffs acknowledge that while

documents record information, there is contextual uncertainty as to the

degree of reliability of the documents” (at para. 23). These observations, as

we shall see, apply to various historical documents where essential context is

lacking.

18

Finally, it is evident that counsel for all parties have, before and over

the decades since these proceedings were commenced in 1981, scoured

available archival sources to locate all relevant documents, covering the

period from 1869 to approximately 1885. Notwithstanding, there are gaps –

some extensive – in the documentary trail, leaving unanswered questions in

many instances.

II.2 The Red River Settlement

19

Every Canadian schoolboy or girl knows that in 1670 the Hudson’s

Bay Company (HBC), by Royal Charter, acquired a vast land mass, most of

which is now part of Canada (and, to a lesser extent, the United States),

extending westward from Lake Superior to the Rocky Mountains and north

to the Arctic Ocean.

20

21

Not as well known, except in Manitoba, is that in 1811 HBC granted

an extensive tract of land to Lord Selkirk centred on the confluence of the

Red and Assiniboine Rivers. This grant of land extended well beyond the

limit of the Red River Settlement as it was in 1870.

In 1817, Lord Selkirk entered into a treaty with a number of Indian

Page 8

bands which granted and confirmed “unto our Sovereign Lord the King”

land for two miles on either side of the Red River, all the way from Lake

Winnipeg to the north to what is now Grand Forks, North Dakota, in the

south, and similarly on the Assiniboine River to a point west of what is now

Portage la Prairie. This two-mile strip became known as the settlement belt.

Subsequently, the Selkirk Treaty, as it came to be known, was considered to

constitute an extinguishment of “Indian title” to the lands in question, a

concept about which we will read much more.

22

As will be explained in more detail, as the Red River Settlement grew,

certain customary rights came to be accepted by settlers in an additional

two-mile strip behind the settlement belt principally for haying purposes, but

also for pasturing, wood lot activities, and even cultivation; this despite the

fact that Indian title had not been formally extinguished by the Selkirk

Treaty. This area of land soon became known as the Outer Two Miles

(OTM).

23

For a while an intense rivalry existed between the HBC and an

energetic competitor known as the Northwest Company, but when these two

firms merged in 1821 an inevitable change in operations took place. This

change resulted in a number of employees of both companies moving from

the Northwestern Territories to the Red River Settlement.

24

As the Red River Settlement grew and prospered along the Red and

Assiniboine Rivers, the community became organized by parishes, with

those north of the junction of the Red and Assiniboine Rivers, commonly

known as “The Forks,” mostly English-speaking and Protestant and those to

Page 9

the south French-speaking and Roman Catholic. The vast majority of the

inhabitants were of mixed blood (i.e. Indian and European) or, as they were

referred to at the time, “half-breeds” (hereinafter Métis).

25

26

In 1835, HBC purchased the interest of Lord Selkirk’s estate and

became the owner of all of the land originally granted to Lord Selkirk.

In the same year, HBC commissioned George Taylor to conduct a

survey of the settled parts of the settlement belt. One of the results of the

survey was to validate the custom that had developed of long, narrow lots

that fronted on the Red or Assiniboine Rivers and stretched back to the limit

of the settlement belt. The total number of surveyed lots was 1,542.

Thereafter, a land registry book called “Register B” was created so that the

names of the legal owners could be entered.

27

Nonetheless, registration was voluntary. Land within the settlement

belt would often change hands without further (or any) registration having

taken place. The trial judge found that a tradition of land tenure based on

occupation developed, mostly outside the surveyed part of the settlement

belt.

28

Starting in about 1839, the Council of Assiniboia – the governing

legislative authority presided over by the HBC Governor – passed a series of

laws giving river lot owners within the surveyed portion of the settlement

belt the exclusive right to cut hay for a further two miles beyond their

property, up to a maximum of the width of their own river lot. Thus, in the

area of the Taylor survey the landowners had an entitlement not only with

respect to the inner two miles, but the right of use over the adjacent OTM for

Page 10

haying purposes. Haying and other privileges also existed in other areas

both inside and outside the settlement belt pursuant to the “custom of the

country.” Since Indian title had not been extinguished, there were no written

instruments confirming any form of tenure outside the settlement belt.

29

30

There is no evidence to suggest that the Indians were opposed to the

practice of settlement residents using land outside the settlement belt.

Once the markets began to open up in the 1840s, the buffalo hunt

became one of the important backbones of the Red River Settlement

economy as a vigorous buffalo robe trade developed. The Métis were

involved as traders not only with the HBC – as its monopoly weakened – but

also with buyers from the United States. However, when the buffalo began

to move farther and farther to the west – due to diminishing numbers

resulting from the effects of the organized hunts – this had a profound effect

on the Red River Settlement. As the trial judge observed (at para. 50):

… By the fall of 1848, the Settlement was bordering on starvation. The

1850s brought better crops, but the 1860s were again very poor. The

combination of a strong buffalo robe market and very poor crops led to

increased abandonment of agriculture by the Métis and some

emigration from the Settlement to points west following the buffalo.

By 1869, the buffalo were so far west and south of Red River that the

buffalo hunt no longer originated in the Settlement.

31

Well before 1869, the Red River Settlement had developed legislative

and judicial institutions. Many of the community representatives were

Métis, and there was an organized judicial system. “The Town of Winnipeg

was home to a small but growing commercial centre of retail stores,

Page 11

warehouses, hotels, trading businesses and saloons” (Macdonald at p. 11).

32

There can be no doubt that the community was a vibrant one and that

the Métis played an important role. For example, the Nor’Wester newspaper

article of July 13, 1867, reported:

… the half castes not only far outnumber all the other races put together

but engross or did lately all the more important and intellectual offices

in the colony; furnishing from their number the sheriff, the principal

medical officer, the postmaster, the schoolmasters and teachers through

out [sic] the country, a fair portion of the magistrates and clergy and

one of the editors and proprietors of the only newspaper of the

Hudson’s Bay Territories.

This highlights the sophistication and importance of the community.

33

The French-speaking Catholic Métis generally tended to cluster

together in their parishes, whereas the English Métis were not nearly as

cohesive a group. But even in the French Métis communities there were

divisions between the wealthy and influential merchants and the poorer

Métis. In both the French and English communities, for the most part the

Métis did not practise a communal lifestyle; rather, they owned land or

squatted on an individual basis.

34

35

The Métis considered themselves to be, and were, distinct from the

Indians. They were not wards of the state, believed in private enterprise, and

regarded themselves as full citizens in every respect. There is no evidence

that they believed themselves to be a vulnerable people.

Canada became a country on July 1, 1867, and soon thereafter

Parliament petitioned the Imperial Crown for the admission to Canada of

Rupert’s Land and the Northwestern Territories. The Imperial government

Page 12

agreed to accept from the HBC a surrender of part of its 1670 grant and

eventually to cede that land, which encompassed what we now identify as

Manitoba, Saskatchewan and Alberta, and beyond, to Canada. Canada for

its part agreed to pay £300,000 to HBC, which would retain one-twentieth of

the land and acreage around its trading posts in the Northwest.

36

37

These arrangements required an Act of the Imperial Parliament and

one was eventually enacted, effective July 31, 1868. There were ongoing

negotiations between Canada and Britain concerning the details.

As awareness of the intended transfer spread within the Red River

Settlement, concerns arose amongst the local inhabitants. Their state of

anxiety was not mollified by the unannounced arrival of road building and

surveying crews in 1869; tension escalated as a result of attempts by Canada

to begin work on a road and to begin surveying activities within the Red

River Settlement. This is the genesis of what became known as the Red

River Resistance.

II.3 The Red River Resistance

38

39

The level of concern was greatest amongst the French Catholic Métis

who were especially worried that their language and religion would be

submerged by the arrival of numerous new settlers from Canada.

Referring to this period, Catherine Macdonald wrote, “There was a

feeling that the lands outside the settlement belt that they had occupied and

used by custom and tradition were under the jurisdiction of the ‘Métis

Nation’ [a phrase found in Father Ritchot’s writings] and that no authority –

Page 13

neither the HBC nor Canada – had any rights there without the permission of

the Métis people. How widely this view was held among the French Métis

is hard to judge” (at p. 24).

40

In July 1869, William Dease and several other prominent French-

speaking Métis convened a public meeting at the court house. Dease’s

position was that the £300,000 that Canada had agreed to pay to the HBC

belonged to the people of the Northwest as the real owners of the land.

Others, including Louis Riel, opposed Dease’s proposal and it was defeated.

This is one of the first recorded indications of a sense of entitlement to the

land.

41

42

In October 1869, surveyors from Canada were confronted by a group

of French Métis led by Riel and were advised that they “had no right to

make surveys without the express permission of the people of the

Settlement” (at para. 70). The surveyors then withdrew.

In the meantime, William McDougall had been appointed by Prime

Minister Macdonald as Manitoba’s first Lieutenant Governor, the plan being

that McDougall would assume control when the transfer of Rupert’s Land to

Canada, now scheduled for December 1, 1869, took place. The Métis

National Committee, a group of French Métis that had been formed in the

meantime by Riel and his followers, erected a barrier to prevent

McDougall’s entry and on October 1, 1869, McDougall was so advised.

43

Notwithstanding, on November 2, 1869, McDougall tried to enter

Rupert’s Land and was turned back by the French Métis.

Page 14

44

That very day Riel and the French Métis seized Fort Garry, the Red

River Settlement’s main building and fortification. The officials of HBC

were detained. The English-speaking members of the Council of Assiniboia

were unanimously opposed to this action on the part of Riel and his

followers. Nor did Riel’s actions have the unanimous support of the French

Métis.

45

On November 6, 1869, Riel issued a public notice on behalf of the

Council of French-speaking representatives inviting the English-speaking

parishes to send 12 representatives to meet with an equal number of

representatives from the French parishes to discuss the present political

situation.

46

On November 16, 1869, the meeting, referred to as the Convention of

24, took place and discussions ensued over several sessions thereafter, with

the two sides far apart on several issues, the two principal ones being a

request by the English-speaking parishes that the French Métis lay down

their arms, and, secondly, whether McDougall should be allowed to enter the

settlement.

47

48

Eventually, a provisional government was formed on Riel’s initiative

by the French Métis alone on November 23^rd, the English representatives

wishing to consult with the people of their parish respecting this

controversial development.

There can be no doubt that Prime Minister Macdonald was aware of

events taking place in the Red River Settlement and their seriousness. The

reality was that the French Métis were the effective military force in the Red

Page 15

River Settlement and had taken control. Macdonald concluded that the best

course of action was to postpone the transfer to Canada including the

payment of money to HBC.

49

50

Unfortunately, in the early morning hours of December 1^st

McDougall, not being aware of Canada’s change of plans, entered a short

distance into Rupert’s Land and read his proclamation of the takeover,

which was posted in the Red River Settlement that very day.

On the same day, the Convention of 24 met again. McDougall’s

proclamation was read. A list of rights (the first list of rights) was adopted

by the French-speaking delegates setting out the conditions upon which they

were prepared to become part of Canada. The English-speaking delegates

wanted no part of this plan and the meeting ended on this note. On

December 10^th, Riel and several of his followers hoisted the flag of the

provisional government at Fort Garry.

51

In an effort to resolve the impasse and to preserve Manitoba’s entry

into Canada, Macdonald deputized Donald A. Smith, Chief Agent of the

HBC, to go to the Red River Settlement as Special Commissioner. This

Smith did and met at length at a mass meeting of the community on January

19 and 20, 1870. At the conclusion of these meetings, on Riel’s initiative,

the Convention of 24 was expanded into the Convention of 40, equally

divided between the French and English representatives.

52

After the election of representatives, the Convention of 40 met for the

first time on January 26^thand several meetings followed thereafter, some

attended by Smith. Eventually a second list of rights was approved which,

Page 16

while more detailed and realistic than the first list, still did not contemplate

Manitoba’s entry as a province. On February 8^th, the Convention accepted

Smith’s invitation to send delegates to Canada; the next day the English

representatives agreed to become part of the provisional government and

Riel was elected President. Father Ritchot, Judge Black and a local

businessman, Alfred Scott, all nominated by Riel, were selected as delegates

(the delegates).

53

Throughout this period unrest within the Red River Settlement

continued. Several arrests and re-arrests were made and on March 4, 1870,

one Thomas Scott, an English-speaking resident, following a brief court

martial, was executed. This action, predictably, resulted in outrage in

Canada, especially in Ontario. Macdonald proposed a British-led military

expedition which Britain was prepared to entertain only if “satisfactory

assurances” were in place with respect to the interests and reasonable

demands of the Red River settlers.

54

The inaugural session of the provisional government council took

place on March 9, 1870. On March 15^th, Archbishop Taché read a telegram

from Joseph Howe, Secretary of State for the provinces, inviting the

delegates to come to Ottawa. The delegates, who did not have authority to

conclude an agreement with Canada, were provided with a letter of

instructions dated March 22, 1870, and a further list of rights from the

provisional government. This third list of rights, amongst other things,

provided for Manitoba entering Confederation as a province and for the local

legislature to have full control over public land.

Page 17

55

56

While not terribly pertinent for our purposes, it would appear that

there was a fourth list that Ritchot had in his possession when the delegates

travelled to Ottawa, which included a demand for denominational schools.

The delegates left the Red River Settlement on March 24, 1870, and

arrived in Ottawa on April 11^th. Following very extensive discussions

between the delegates and Canada, the latter being represented exclusively

by Macdonald and Cartier, matters were resolved through passage of what

became known as The Manitoba Act by Parliament on May 10^th, receiving

Royal Assent on May 12^th.

57

58

On June 23, 1870, the Imperial government passed an Order in

Council admitting Rupert’s Land and the Northwestern Territories into

Canada effective July 15, 1870.

An official census of the Red River Settlement was carried out in late

1870 under the direction of Lieutenant Governor Adams G. Archibald. On

December 9, 1870, Archibald reported to the Secretary of State for the

provinces that there were residing, at that time, according to two

enumerators (one English and one French):

English

1,611

578

French

1,565

558

Whites

Indians

French Half-breeds

English Half-breeds

[Total number of Half-breeds]

Total

5,696

4,082

[9,778]

11,967

5,757

4,083

[9,840]

11,963

Page 18

59

60

In the first election in the province following its creation, 24 members

were elected to the provincial Legislative Assembly; 11 or 12 were Métis

and four others French-speaking non-Métis.

II.4 The Delegates in Ottawa: The Birth of Sections 31 and 32 of the Act

Discussions in Ottawa between the delegates on the one hand and

Macdonald and Cartier on the other began in earnest on April 25, 1870. The

delegates’ agenda included, in addition to the terms of the possible entry of

the Red River Settlement as the next province of Canada, a general amnesty

for Riel and his followers.

61

Progress was gradually made; as the trial judge found “[i]t appears

that the Red River delegates understood on April 27 that Canada would

retain ownership of the public lands, as it was only when that fact was made

clear to the delegates that the idea of the children’s land grant first emerged”

(at para. 111) and “Indian title” became part of the discussions. The Métis,

up to this point, had not attempted to advance their interests on the basis of

Indian title; indeed, there is no reference to it in any of the lists of rights

prepared by the Convention of 40 or the provisional government.

62

63

Further meetings had to be postponed because of Macdonald’s illness,

but on April 29^thdiscussions took place with Cartier which included the

children’s land grant, its size and conditions.

Detailed discussions began again in the afternoon of May 2^ndwhen

Macdonald rejoined the group. The delegates wanted 1.5 million acres. The

ministers proposed 1.2 million. Ritchot’s diary records:

Page 19

… we agreed … the land will be chosen [pursuant to what became s.

31] throughout the province by each lot and in several different lots and

in various places, if it is judged to be proper by the local legislature

which ought itself to distribute these parcels of lands to heads of

families in proportion to the number of children existing at the time of

the distribution; that these lands should then be distributed among the

children by their parents or guardians, always under the supervision of

the above mentioned local legislature.

64

On the same day, Macdonald wrote out in his own hand what was

obviously the progeny of s. 31 but with some differences. It refers to the

Métis “partly inheriting the Indian rights,” 1.5 million acres to be selected

“by the said Legislature . . . having regard to the usages and customs of the

country . . . to be distributed as soon as possible” (at para. 114).

65

The subject of the Red River Settlement becoming part of Canada was

introduced in Parliament without a written Bill by Macdonald that evening

(that is to say May 2^nd). In his speech, he referred to the fact that the

reservation of land in the amount of 1.2 million acres was for the purpose of

extinguishing Indian title, that the land not belonging to individuals would

belong to Canada, and “[i]t is proposed to invoke the aid and intervention,

the experience of the Local Legislature upon this point, subject to the

sanction of the Governor General” (at para. 115) (emphasis added).

66

Cartier also spoke, stating that “[t]hese lands were not to be dealt with

as the Indian reserves, but were to be given to the heads of ‘families to settle

their children’” (at para. 116). In a further speech that evening, Macdonald

referred to land for allotment being placed under the control of the province

(at para. 118).

Page 20

67

A serious debate in Parliament ensued that evening and during May

3^rdwith heavy opposition, there being great animosity towards Riel and the

Métis. The printed Bill was presented to Parliament by Macdonald for the

first time on the evening of May 4^th, who moved second reading (para. 126).

There were material changes to it compared to what had been described to

Parliament when it received first reading on May 2^nd. Portage la Prairie was

now included and the land grant was increased to 1.4 million acres. It

provided that grants were to be made “in such mode and on such conditions

as to settlement and otherwise, as the Governor General in Council may

from time to time determine” (at para. 129). These provisions were

explained in the House at length by both Macdonald and Cartier.

Macdonald indicated that no land would be reserved for speculators, “the

land being only given for the actual purpose of settlement,” that the “half-

breeds had a strong claim to the lands, in consequence of their extraction, as

well as from being settlers,” and that such conditions were necessary to

ensure that “Parliament . . . would show that care and anxiety for the

interest of those tribes which would prevent that liberal and just

appropriation from being abused” (at para. 132).

68

Not surprisingly, these changes from the speeches made in Parliament

by Macdonald and Cartier on May 2^nddid not sit well with the delegates.

The May 5^thentry in Ritchot’s diary refers to the Bill being “very much

modified. Several clauses displeased me fundamentally. . . . we complained

to them [Macdonald and Cartier]” (at para. 133). Ritchot’s diary records

that the two ministers promised that an Order in Council would be

authorized so that “the persons we would choose to name ourselves” would

Page 21

“form a committee charged with choosing and dividing, as may seem good

to them, the 1,400,000 acres of land promised.” But in all events, Ritchot

noted, friends advised him it was “necessary to strive to get it passed” as the

Bill was advantageous for them.

69

On May 6^th, Ritchot’s diary records that the delegates went anew to

see Macdonald and Cartier. Assurances were given, he wrote, that they

would be given “all the desired guarantees before our departure,” but they

were also advised that, “[i]t is impossible to get the Bill passed, if it is

changed in this respect” (referring to the land grant). Ritchot’s diary states,

“[s]eeing that it is impossible to obtain what we ask, we content ourselves

with remarking that it would only be in accord with the conditions that we

made between us, and which we mutually accept, that we can take it upon

ourselves to get them adopted by our people” (at para. 135).

70

On May 9^th, Cartier, during debate in Committee – Macdonald

apparently being indisposed – indicated that since the Dominion government

would control the lands with the new province, it was only just to give

something in return (referring to the land grant), the government desiring to

be “liberal to provide for the settlement of those who had done so much for

the advancement of the Red River country” (at para. 137).

71

The Opposition’s motion to delete the provision for a land grant from

the Bill was defeated. Ultimately, on May 10^ththe Bill was read a third time

and passed. On the same day there was vigorous debate in the House

concerning what came to be known as the Wolseley expedition. This was a

military expedition consisting of Canadian militia and British troops led by

Page 22

Colonel Garnet Wolseley. It was organized in response to outrage about the

execution of Thomas Scott, and the rebellion in general, to restore order in

the Settlement.

72

According to Ritchot’s diary, nothing much seems to have happened

after passage of the Act until May 18^th. On that date, in a letter to Cartier,

Ritchot again expressed concern about the change in the method of the

selection and division of the s. 31 lands from the local legislature to the

Governor General in Council. The letter refers to discussions with

Macdonald and Cartier wherein, Ritchot wrote, the delegates had been

promised before their departure that the Governor General in Council would

authorize “a committee composed of men whom we ourselves were to

propose to select these lands and divide them among the children of the half-

breeds,” and that Macdonald had proposed to appoint Archbishop Taché as

one of the members of the committee. Other matters were raised, including

an amnesty for Riel and his followers, and the question of ownership of land

where Indian title had not been extinguished (referring to the OTM and

beyond).

73

74

On May 19^th, Cartier took Ritchot and Alfred Scott to visit the

Governor General. In Ritchot’s diary it is noted that Cartier confirmed that

he had “received my letter of comments, he is working to arrange things.”

On May 23^rd, Ritchot visited Cartier at his office. According to his

diary, Cartier had been working to answer his comments of the 18^thand “he

showed me the jumble.” Further discussion about an amnesty for Riel and

his followers ensued.

Page 23

75

On Friday, May 27^th, two days after the Wolseley expedition departed,

Ritchot saw Cartier yet again. He was given a letter dated May 23^rd, written

by Cartier, as promised, but Ritchot handed it back to have him add, as his

diary states, some guarantees “on the subject of the 31^stclause of the Act

regarding the choice and division of lands that were to be distributed to the

children.”

76

77

There is nothing in his diary or elsewhere to indicate that the delegates

sought assurances at any time about grants being in family blocks or

clusters, conditions of settlement or entailment.

The letter dated May 23^rddealt in the main with s. 32(4). It affirms,

following the meeting on May 19^thwith the Governor General, that a liberal

policy would be followed. There are two postscripts (likely as a result of the

meeting on the 27^th), the latter of which states in relation to s. 31 that, “the

regulations ... will be of a nature to meet the wishes of the half-breed

residents, and to guarantee, in the most effectual and equitable manner, the

division of that extent of land amongst the children of the heads of families

....” As we shall see, the meaning to be placed on this second postscript is

much debated.

78

We do not know exactly when Ritchot received the letter; what we do

know is that when he returned to the Red River Settlement and addressed the

Legislative Assembly of Assiniboia on June 24, 1870, the May 23^rdletter

was read to the Assembly by Thomas Bunn, Secretary of State for the

provisional government. As it was recorded, during discussion Ritchot

indicated that the s. 31 grants were being given to the Métis not as minors

Page 24

“as under the Confederation Act” (referring to Indians) but on their own

behalf. He is reported to have said that “satisfactory assurances” had been

received regarding the land question so that, in his opinion, “wherever there

is a doubt as to the meaning of the Act, let me state, it is to be interpreted in

our favour.” He also advised that while “the Half-breed title, on the score of

Indian blood, is not quite certain,” it was deemed best to regard it as certain

in order to make a “final and satisfactory arrangement.” The record of the

event does not indicate discussion about any restriction or alienation of the

grants. As for a land reserve, Ritchot reported:

… we were anxious to secure the land reserve, for the benefit of all the

children in the country, white and Half-breed alike. We tried hard to

secure this; but were told by the Ministry that it could not be granted, as

the only ground on which the land could be given was for the

extinguishment of Indian title. It was reasonable that in extinguishing

the Indian title, such of the children as had Indian blood in their veins,

should receive grants of land; but that was the only ground on which

Ministers could ask Parliament for the reserve. It was to be a

reservation for minors with Indian blood – but not for adults, for the

latter are allowed every liberty of self-government and all the rights of

white people. …

He went on to say:

As to the result of the mission of your delegates generally, I have only

to say that as the Canadian Government seem really serious, they have

to be believed and we can trust them.

79

These are the facts concerning the birth of Manitoba as they relate to

the land claims of the Métis, as we have them, keeping in mind the potential

frailties of the record.

Page 25

II.5 The Implementation of Sections 31 and 32 (Post-July 15, 1870)

80

Archibald was appointed Lieutenant Governor of Manitoba on July

30, 1870, and arrived in early September, just after the Wolseley expedition.

One of his first tasks was to organize electoral divisions and undertake a

census. The census was promptly completed. There were just under 12,000

persons in the province, only 1,600 of whom were described as “white

Europeans.” (We were told during argument that within a decade the

population of the new province was close to 60,000.) Approximately 6,000

Métis were 20 years of age or under. Dr. Thomas Flanagan, Professor of

Political Science, University of Calgary, in his report, “Historical Evidence

in the Case of Manitoba Métis Federation v. The Queen” (January 1998) at

p. 43, expressed the view that the 1870 census was completed in haste and

was therefore inadequate due to “technical defects in the listing of children

and heads of families.” Interestingly, an Order in Council dated January 13,

1872, authorized a further census to be completed. There is no record as to

why this was not done.

81

Archibald wrote two important letters in December 1870. The first,

dated December 20^th, reviewed the landholdings as they existed at July 15,

1870 (in other words s. 32), together with the system of surveys to be

employed. He recommended that the scheme of survey as it then existed in

the United States based on a system of six miles square, be used for the

“residue” of land after deducting for the existing entitlements.

82

The second letter dated December 27^th, and by far the most important

for our purposes, concerned recommendations for the selection of land under

s. 31 of the Act. Noting that there were very few descendents of the Indian

Page 26

tribes who had previously occupied the lands in Manitoba, he presumed “the

intention was not so much to create the extinguishment of any hereditary

claims (as the language of the Act would seem to imply) as to confer a boon

upon the mixed race inhabiting this Province, and generally known as Half-

breeds” (at para. 163). Thus, “some liberty must be taken with the

language” and he recommended that all half-breeds, adults and children

alike, should be included under the umbrella of s. 31.

83

Archibald reviewed the differences between the wishes of the French-

and English-speaking Métis. The French Métis had a strong disposition to

have their reserve laid off “in one block” in the vicinity of existing parishes

of their own people, while the English Métis wanted to have the liberty of

selecting their lands wherever they wanted. This difference arose, Archibald

opined, because for the French Métis it was a matter of race and language

rather than business. He wrote that “the French, or their leaders” wished the

s. 31 lands to be tied up so as to prevent it from passing out of the family for

a generation, the practical effect of which he concluded would be to restrict

sales of a significant portion of the land for as long as three generations. In

his opinion, this was against all the “tendency of modern legislation,” which

was not to entail land. It would also not be in the best interests of the new

country to lock up a large portion of the land “and exclude it from the

improvements going on in localities where land is unaffected.” He therefore

strongly recommended that “whatever is given under the half-breed clause

should be given absolutely.”

84

Even then, he wrote, a significant portion of the land would be tied up

for a long time because more than one-third of the Métis residents were

Page 27

under the age of ten and three-fifths under the age of 20. In his opinion, this

was “clog enough to impose upon the transfer of these lands.”

85

86

Archibald’s recommendation was not based on his view alone. He

entrusted Molyneux St. John to make inquiries and report; St. John’s advice

was that, “It appears to be the general desire that the land given to the half-

breeds should not be inalienable.”

The first, and most important Order in Council under s. 31, was

passed on April 25, 1871, despite an argument by McDougall in Parliament

that s. 31 did not authorize grants to adults, as recommended by Archibald.

As the trial judge observed (at para. 167):

… The acceptance of Archibald’s recommendation as to who was

entitled to share in the section 31 grant and the rejection of

McDougall’s position would result in a delay in the implementation

process.

87

The Order in Council provided for the distribution of the 1.4 million

acres amongst “all half-breed residents” in Manitoba, with the method of

survey to be as recommended by Archibald. Given that there were

approximately 10,000 Métis in Manitoba at the time, this resulted in an

allotment of 140 acres for each such resident. The most liberal construction

was to be put on the word “resident.” The Order in Council stated that the

Lieutenant Governor would designate the townships or parts of townships

for the allotment. No conditions of settlement were to be imposed, and there

were to be no restrictions other than “restrictions as to their power of dealing

with their lands when granted … which the laws of Manitoba may

prescribe.” Claimants over the age of 18 were to receive their patents

Page 28

“without unnecessary delay, and minors on arriving at that age.”

88

The Order in Council provided that grants should be made by way of

random lottery. There is only one proposal in evidence inconsistent with the

lottery method. On April 28, 1871, John Norquay, a Métis and future

Premier, made a motion before the Legislative Assembly to petition the

Governor General to allow the location of s. 31 land to “be optional with the

parties to whom it is given.” The other Métis members supported the

motion, which passed. It appears that the Legislative Assembly may not

have been aware of the April 25, 1871 Order in Council passed by Canada.

Notably, the Legislative Assembly also requested, by the same motion, that

a further appropriation be made to non-Métis “born and brought up in this

province.”

89

Any sense of tranquility in Manitoba did not last long. Firstly, there

were serious incidents of physical altercations and abuse on the part of the

Wolseley expedition soldiers towards some of the Métis population.

Secondly, by the spring of 1871 new immigrants began to arrive which

caused anxiety and unrest among the residents. The state of unease could

only have increased by the passage of the May 26, 1871 Order in Council.

This Order in Council, based on the recommendation of Colonel J. S.

Dennis, the Surveyor General of Dominion Lands, permitted the

establishment of rights of homestead or preemption on lands not yet

surveyed, and did not exempt the OTM. Flanagan calculated that this

decision, in the end, rendered about two to four percent of the OTM

unavailable for s. 31 grants. This must have been particularly upsetting to

the settled residents as Canada, despite Archibald’s eagerness to start, was

Page 29

not prepared to commence the s. 31 allotments until the surveys were

complete.

90

91

Not surprisingly, Archibald received inquiries from worried

inhabitants, not only with respect to ss. 31 and 32 lands, but also concerning

rights of common and haying privileges.

On June 9, 1871, Archibald responded to a letter dated May 24, 1871,

published in the local newspaper by six members of the Manitoba

Legislature in which they expressed concern about rights in common, hay

cutting rights as well as “possession of the lands guaranteed” by the Act, in

light of the arrival of new immigrants. In his reply, also made public in the

local paper, Archibald reminded the residents that it was his responsibility

under s. 31 to designate the townships or parts of townships in which the

allotments were to be made; however, “[s]hould I be called upon to act

under this rule, I shall consider that the fairest mode of proceeding will be to

adopt, as far as possible, the selections made by the Half-breeds themselves”

(at para. 174). He undertook that if a choice “of a particular locality” was

notoriously well known and could be identified in defined terms so as to

prevent settlers from entering in ignorance, he would, if the duty was

assigned to him, confirm the selection so long as it did not do violence to the

“township or sectional series.”

92

The trial judge found that Archibald endeavoured to follow this

course, and did eventually set aside lands from which, to a large extent, the

s. 31 lands were selected. The trial judge also found that when he wrote his

response, Archibald was not aware of the May 26, 1871 Order in Council.

Page 30

93

Later in June, Archibald wrote to Joseph Howe, Secretary of State for

the provinces, providing copies of the exchange of correspondence. He

noted the great unease within the province resulting from the arrival of

immigrants. He reported that the French Métis claimed that their rights were

superior to all others (except existing settlers), relying on Cartier’s letter of

May 23, 1870, for support. Therefore, Archibald said, “the French Half-

breeds have all along understood they were to have a first choice,” a

perspective that was directly challenged by the new settlers. In the result, he

stated that he considered – dreading an outbreak – that he did not have any

choice but to respond as he did “at the risk even of not being sustained by

His Excellency the Governor General.”

94

It is evident that Archibald feared an insurrection, partly prompted by

the Fenians, and was very anxious to maintain good relations with the Métis.

The Fenians were a group of American Irish agitators, hostile to British (and

hence Canadian) rule. A raid of sorts had taken place by this group and with

some Métis support on the HBC’s post at Pembina in October 1871.

Archibald’s concern that such activity might spread led him to “shake

hands” with Riel at a public event in the province, an act that generated a

great deal of criticism in Parliament and elsewhere. This caused Archibald,

in December 1871, to offer his resignation.

95

No doubt another cause for concern on Archibald’s part were

continuing reports of “linguistic and religious intolerance of the new settlers

arriving from Canada” as well as the Wolseley soldiers, toward the Métis.

See Dr. Gerhard J. Ens, “Migration and Persistence of the Red River Métis

1835-1890,” (December 1987, revised June 1998) at p. 24. Ens described

Page 31

this as a “reign of terror,” and states that “virtual mob rule” prevailed in

Winnipeg in 1871-72. In a letter written by Archibald to Macdonald on

October 9, 1871, he described this behaviour as “a frightful spirit of bigotry

among a small but noisy section of our people.”

96

Howe wrote to Archibald on November 4, 1871. The bulk of the

letter is taken up with a discussion of the amnesty for Riel and his followers

so earnestly sought by Ritchot and Taché. Howe expressed regret that

Archibald had written as he had “giving countenance to the wholesale

appropriation of large tracts of Country by the Half-breeds.” Howe was

opposed to appropriating large tracts of land “until these have been surveyed

and formally assigned by the land Department.” He suggested that

Archibald permit the government and the land department to carry out their

policy “without volunteering any interference.” This, Howe stated

emphatically, had been neither promised nor asked for “in any formal

shape,” and would have resulted in the disintegration of the government if

pressed.

97

At the same time, the federal government, after negotiations, entered

into Treaties 1 and 2 in August 1871 which extinguished Indian title

throughout the new province. The practical effect of the Treaties was to

remove any impediment to the availability of lands outside the OTM for s.

31 grants.

98

Some “spontaneous demands” from Métis parishes requested that

grants be distributed on a community basis. But, in a further letter to

Archibald on December 6, 1871, Howe reiterated, “[w]hen the million and a

Page 32

half acres have been surveyed, the Government must then see not that any

particular ‘ring’ gets a particular block, but that each individual Half-breed

including minors and infants who are in no condition to scramble just now is

put in possession of his quarter section, if it should turn out that he has not

helped himself in this quiet and reasonable way in the meantime.”

99

Taché strongly endorsed Archibald, in his January 23, 1872 letter to

Macdonald, indicating he was entirely satisfied that Archibald had acted

wisely in attempting to please the Métis, though his enthusiasm proved to be

rather short lived.

100

The state of unrest continued and on February 8, 1872, the Legislative

Council and Assembly of Manitoba sent an address to the Governor General

expressing concern about the delay in making grants, exacerbated by the fact

that new settlers were being allowed to take up land in the meantime. The

address requested that Canada honour the selection of reserves made by the

Métis population that “have received the unqualified approbation” of

Archibald, stating that “reserves in block taken by the Half-breed population

are in accordance with the letter and spirit of an official document signed at

Ottawa on the 23^rdof May, 1870” (i.e. Cartier’s letter). The address asserted

that:

… this grant [s. 31] constitutes an absolute right of property in favour

of the recipients, and that the considerations for which the grant was

given entitle the recipients to the rights assured by common law to the

owners of individual property.

101

The Legislative Council and Assembly also requested that they be

Page 33

given “the privilege … of naming administrators or guardians to take charge

of the administration of the land reserved and set apart for the Half-breed

minors,” and advocated a grant to the original white settlers.

102

There is no record of any response being made to this joint address for

almost a year, at which time the Privy Council advised it was the sole

responsibility of the Governor in Council to regulate the distribution of the

grants, “all the provisions of the Manitoba Act . . . are now being carried out

as rapidly as circumstances will permit.” There is no explanation as to why

such a delay occurred, but shortly after the joint address of February 8, 1872,

Colonel Dennis and Gilbert McMicken, the Dominion Lands Agent in

Manitoba (the senior government officials), suggested that the Secretary of

State proceed with the selection of lands on an urgent basis. McMicken

recommended distribution generally in the localities desired by the Métis,

and that they be given the privilege of “selling their claims and

improvements.”

103

A few months later the Order in Council of April 15, 1872, was

passed, which declared that since surveys in Manitoba were by then

sufficiently far advanced, selection of the 1.4 million acres under s. 31 could

begin. By telegram dated July 17, 1872, Archibald was instructed to make

the selection of Métis lands without delay. This he did, reporting just ten

days later that by withdrawing from the market those lands likely to be

selected (comprising about one-sixth of the new province), the “excitement

amongst the half-breeds has subsided” and opining that once the final

selections were made and title passed, a market for the land “will be

infinitely extended.”

Page 34

104

A few weeks later on August 12, 1872, Archibald wrote to J. C.

Aikins, by then the Secretary of State for the provinces, reporting upon a

petition from the residents of High Bluff and Poplar Point who were

requesting that the land they had selected (subject to surveys) in accordance

with Archibald’s letter of June 9, 1871, be confirmed. Archibald advised (at

para. 192):

I have been governed in my approximate selection, by a desire, as

indicated in that letter [of June 9^th], to meet the views of the half-

breeds, as far as I can, conformably to the governing idea of making the

selection a fair average of Townships, …

105

Archibald also repeated his view that “[i]n the interests of the public,

it is better that the lands there situate [referring to the area between the

Assiniboine River and the shores of Lake Manitoba] should be in the hands

of purchasers and settlers, and so be open to the general market” (at para.

193), rather than to underage Métis. In the result, he suggested alternate

suitable locations for these two parishes, which eventually was implemented.

106

In the summer of 1872, Archibald began to designate the townships,

eventually totalling 68 in all. This was essentially completed by August

except for the five northernmost parishes, where it took until December to

complete the task. The reason for this latter delay is not known, but may

well have been caused by problems with the survey.

107

As one of his last acts as Lieutenant Governor, Archibald wrote the

Secretary of State on August 26, 1872, confirming that the Métis had been

made to understand that the only effect of his “preliminary” selections of the

townships where the allotments would take place was to withdraw them

Page 35

from the market, “pending the inquiries required to determine as to their

absolute selection” (at para. 195). Understandably, once the preliminary

selection of reserves commenced, both the Métis and the government wanted

the drawing of individual allotments to begin. According to Dr. Gerhard J.

Ens, “Manitoba Métis Study: The Métis Land Grant and Persistence in

Manitoba” (September 2006) at p. 46, Archibald and Alexander Morris

made their selections “for the various parishes based on the desires and

requests of the Métis themselves.” It would appear that the land set aside for

the reserves, for the most part, was in townships contiguous to or close to the

parish where the grantees resided. For example, St. James and Headingley

received almost exactly what had been reserved for them, but the sheer size

and number of s. 31 grants made it unlikely that all Métis grantees could be

settled, where they desired, or as a group.

108

In the fall of 1872, Alexander Morris became the new Lieutenant

Governor. Shortly thereafter, he recommended to the Secretary of State that

he be authorized to proceed with the s. 31 allotments and s. 32 grants. In his

response of December 6, 1872, the Secretary of State confirmed these

instructions, advising that “an early distribution of the Half-breed Grant . . .

has been a matter of anxiety to the government, and it is with much relief

they are at length enabled to look forward to a speedy allotment of the

lands.” Dennis arrived back in Winnipeg in late December 1872 and was

dispatched to meet with the Métis situate in those parishes where land

selections had not been completed. In his report, Ens indicates that there is

nothing in the historical record to indicate that these latter selections were

unsatisfactory to the Métis (at p. 43).

Page 36

109

110

On January 3, 1873, Dennis informed Morris that applications were

being made daily by residents of various parishes who said there were half-

breeds left out of the 1870 census “through the neglect of the enumerators.”

On February 14, 1873, Morris wrote to Macdonald advising that there

was a movement, originated by Taché and Ritchot, demanding the lands of

the half-breed heads of families be entailed, but that a deputation from St.

Norbert opposed it, and it was already “dead.”

111

After some correspondence back and forth with the Secretary of State,

Morris finalized the selection of townships and on February 22, 1873, began

the allotment process, personally drawing lots for the individual grants of

140 acres at the rate of 60 per hour. There seems to have been no complaint

of delay on Morris’s part, at least up to this point in time.

112

113

Not surprisingly, the drawing of allotments did not turn out to be an

easy task. There were two complications identified by the trial judge. The

first was the resurfacing of the question whether it was appropriate for the

grant to be for all Métis residents or for the Métis children only.

After further questioning in Parliament, Macdonald announced that

there had been a change of mind on the part of the government and that only

children of Métis heads of families were entitled to receive allotments under

s. 31. This change, confirmed by the Order in Council of April 3, 1873, was

supported by Riel. As the trial judge dryly observed, “[t]he deletion of

heads of families from the children’s grant created problems and delay” (at

para. 202).

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114

In the end, legislation enacted in 1874 authorized the granting to each

Métis head of family of 160 acres of land or scrip for $160. The legislation

also provided for grants of $160 scrip to the “original white settlers” who

had settled in the Red River region before 1835. Eventually, the grant to the

Métis heads of families was restricted to scrip. Three thousand one hundred

eighty-six scrips were issued to Métis heads of families and 800 to original

white settlers. Drs. Flanagan and Ens noted in “Métis Family Study: A

Report Prepared for the Department of Justice” (January 1998) that the

issuance of supplementary scrip with respect to the children’s allotment is

not well documented.

115

116

The elimination of heads of families obviously reduced the number of

Métis eligible for the grant and the second allotment, this time for 190-acre

grants, started afresh in August 1873. It is not clear how the number 190

was arrived at.

The second problem related to the hay privilege issue under s. 32(5)

of the Act, which had initially been considered to be a minor issue but by

this time had become controversial, due to concerns about the possible loss

of the hay privileges in the OTM, which was included in the area where the

townships were to be set aside for the s. 31 grants. The Métis believed that

the OTM should be available to the river lot settlers under s. 32. (It should

be noted that there was no OTM in nine of the parishes as the OTM only

existed “behind” the inner parishes.) In the result, on September 6, 1873, an

Order in Council was passed withdrawing the OTM from the s. 31 lands.

The deficiency was to be made up from “unclaimed” Dominion lands upon

the “rear of the allotment.” The Order in Council also caused the

Page 38

cancellation of those s. 31 lands that had already been allotted within the

OTM. The policy reversal also created more work for the surveyors because

the OTM, which had first been surveyed on the rectangular “American

system,” had to be redone as an extension of the river lots.

117

The trial judge found (at paras. 208-9) that speculators and others

even at this early stage had succeeded in acquiring the interests of some

Métis children in their land grants. As early as 1872, articles were appearing

in the local press urging the Métis to beware of speculators, advising them

not to sell their reserve land. This reality was later acknowledged by

Macdonald in a speech to the House of Commons, House of Commons

Debates, Vol. XX (6 July 1885) at 3113, wherein he confirmed:

The claims of the half-breeds in Manitoba were bought up by

speculators. It was an unfortunate thing for those poor people; but it is

true that this grant of scrip and land to those poor people was a curse

and not a blessing. The scrip was bought up; the lands were bought up

by white speculators and the consequences are apparent.

118

There can be no doubt, as also found by the trial judge, that a variety

of legal devices, including powers of attorney – sometimes to “buyers of

convenience” – and mortgages attached to the land of the parent of the Métis

child, were all used so that, by 1873, “many sales of the interests in s. 31

land were occurring” (at para. 209). Such sales would have included

dispositions by heads of families prior to the April 3, 1873 Order in Council,

as well as those by children.

119

In response to reports of very low prices reportedly being received for

s. 32 and s. 31 entitlements, the Manitoba Legislature on March 3, 1873,

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passed The Half-breed Land Grant Protection Act, S.M. 1873 (37 Vict.), c.

44 (the “1873 Act”) which provided that no promise or agreement made by a

Métis to sell his interest in a grant prior to issuance of the patent would be

enforceable, nor could damages be awarded, though any remuneration

received by the Métis was recoverable as a debt, with interest, from the date

of the patent. Norquay opposed the legislation on the basis that it interfered

with freedom of contract and was an insult to the Métis. Morris reserved his

assent to the 1873 Act, but in February 1874 it was given Royal Assent upon

the advice of the Minister of Justice who, despite reservations,

recommended it not be disallowed as it would protect the future interests of

the Métis, very many of whom having already agreed to sell “in perfect

ignorance” as to their rights or the value of their entitlement.

120

The trial judge observed (at para. 216):

… starting in 1874 following the assent of the Governor General to the

[1873] Act, Métis vendors for the next three years were not bound by

agreements to sell their interests in land made before the patents to the

land issued. …

121

122

Notwithstanding, Flanagan wrote that the practical effect of the Act

may simply have been to require different legal techniques as opposed to

halting sales altogether.

Despite Morris’s zeal to move ahead with the allotments, things still

did not go smoothly. Dennis recommended that a process be established to

permit investigation of claims of entitlement to an allotment. Morris, by

letter dated December 12, 1873, disagreed with Dennis, arguing that to

validate claims of the Métis in such a way would involve too much delay.

Page 40

Both asserted that their recommended course of action was in the best

interests of the Métis. Morris’s position was that it would be better to

publish not only the list of successful grantees, but the specific lands allotted

to them. This would provide a level of certainty both to the claimants and

the government, encourage pride of ownership and, upon publication, vest

the land in the grantee. Donald Codd, Acting Agent of Dominion Lands,

supported Morris’s position. During all of this time, allotments continued

with the names, but not the description of the land being announced. As

well, there were various problems relating to surveying errors and other

local difficulties.

123

The government of John A. Macdonald was defeated in November

1873, and in early 1874 a new Liberal government was formed. There was

no discernible progress thereafter with respect to the allotments until early

1875, and then only after questions were asked in Parliament about the

delay. As well, in early 1875, a number of parishes in Manitoba sent to

Canada and the Governor General nearly identical petitions complaining

about the delay of nearly five years without one grantee being “in possession

of one acre of said lands or deriving any benefit therefrom,” pointing out

that it was having a “very damaging effect upon the prosperity of the

Province.” This request was followed up by an address to the Governor

General from the provincial government.

124

In December 1874, the second provincial election was held. Of the 24

members elected, eight were Métis and four were identified as French

Canadian supporters.

Page 41

125

Finally, on April 26, 1875, an Order in Council was passed which

essentially accepted the advice of Dennis; it provided for the publication of

the names of the successful grantees but not of the description of the land

actually allotted to them. It also recommended that commissioners be

appointed for the special purpose of investigating and reporting on the

applications made, after which it was anticipated that the patents should

issue “forthwith.”

126

127

There is no explanation why it took the new government over a year

to address the continuing delays in moving ahead with the allotments.

In May 1875, John Machar and Matthew Ryan were appointed

commissioners by Canada to verify the claimants entitled to a s. 31 grant.

The commissioners worked expeditiously compiling returns for each parish

which were approved in January 1876 by Dennis, and David Laird, Minister

of the Interior, as the authoritative list. In doing so, they started with the

1870 census notwithstanding concerns by some about its completeness,

updating it wherever possible. The commissioners also recommended that

no more tracts of land be reserved to satisfy any future claims and that, if

necessary, scrip be issued instead. The Métis heads of families and the

original white settlers were therefore enumerated at the same time.

128

129

But this was still not the end of the delays. The approved names were

substantially fewer in number than had been anticipated, and there were

serious concerns about this discrepancy.

In the meantime, Manitoba attempted to amend The Half-breed Land

Grant Protection Act, 1873 by an Act to Amend Cap. 44, Vict. 37, intituled:

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The Half-breed Land Grant Protection Act, S.M. 1875 (38 Vict.), c. 37 (the

1875 Act), passed May 14, 1875, the effect of which would have been to

reduce the protections provided under the 1873 Act. But Canada, in contrast

to its decision with respect to the 1873 Act, disallowed the 1875 Act in

October 1876.

130

Order in Council of March 23, 1876, cleared the way for the

Department of the Interior to commence issuing patents. Significantly, it

provided that, “with a view to discourage the operation of speculators in

these lands,” assignments before patent would not be recognized by Canada.

This provision remained in force until it was repealed in 1893.

131

But as we have seen, there were already a number of legal devices in

place by speculators and purchasers to “get around” the 1873 Act of

Manitoba. As the trial judge concluded, “between 1874 and 1877, sales of

claimant’s interests had continued by various means,” there being pressure

“not only from speculators and new settlers but from many Métis to enable

binding sales before patent” (at para. 233).

132

Doubts about the accuracy of the authoritative list developed by the

Machar/Ryan Commission continued, with Dennis expressing concern to

Codd in the summer of 1876 that the 190-acre allotments might now be too

large. Codd was asked to give his opinion, which he did in August of that

year. In his detailed explanation, and while admitting surprise at “this state

of affairs,” he expressed confidence that all then resident in Manitoba were

on the list, so that only those “now resident in the North West Territory

needed to be determined.” In his opinion the total number of recipients

Page 43

would not likely exceed 5,814. The number was eventually fixed at 5,833 to

permit an individual allotment size of 240 acres. Doubtless, the fact that the

Machar/Ryan Commission identified only 5,088 entitled to share in the grant

was a major factor in Codd’s conclusion.

133

Codd’s advice was accepted by Order in Council dated September 7,

1876, which noted that “no satisfactory explanation appears of the difference

between the numbers of children” in the 1870 census, as compared to

Codd’s estimate. The Order in Council necessitated the cancellation of the

second allotment, even though it appears to have been essentially completed,

and the commencement of a third allotment with the larger grant size of 240

acres. This caused yet more delay.

134

The third allotment commenced in October 1876 and was not actually

completed until 1880 despite the fact that the public notices for the third

allotment indicated that it would proceed with “all due diligence.” As late as

February 1880, the Manitoba Legislature complained of the long and

unnecessary delay.

135

The explanation for the delay given at the time, and the only one we

have, was that Codd (who told Morris that until Ottawa sent assistance, he

could only devote two days a week to the job), and laterally Morris’s

replacement as Lieutenant Governor, Joseph Cauchon, did not have the time

to deal with the matter personally and were unwilling to permit assistance by

a clerk. This was due to concerns about confidentiality with respect to the

location of individual allotments; the worry being there could be a public

perception that possession of such information enabled Codd to assist

Page 44

speculators. Cauchon was also troubled by indications of dissatisfaction

with the process.

136

Soon after the third allotments commenced, Morris reiterated his

earlier proposal that the lots assigned to a successful grantee under s. 31 of

the Act be made known at the time of selection to enable a grantee, who

intended to settle on the land, to know where the lots were so as to protect

the timber there located. It was recognized that patents would not likely

issue for many years “owing to the great extent of the lands.” Of even

greater significance was his final recommendation that the land be vested in

the allottees upon completion of the allotment process.

137

Surely not by coincidence, the Executive Council of Manitoba in

November 1876 sent an address to the Privy Council requesting that as soon

as allotments were drawn, public notice be given so that children of full age

should be able to settle upon or sell the lands allotted to them rather than

having to wait for a patent to issue. This request was rejected by the federal

government by Order in Council dated January 17, 1877. Declining to enter

into any discussion of the matter, the Privy Council stated that it was the

government of Canada alone that was responsible to Parliament and that it

would deal with the issue “in the manner which the Government believe to

be most favourable to the public interests” (at para. 242).

138

In the end, after further entreaty by Morris and the Executive Council

of the province of Manitoba, later in 1877 Canada permitted the publication

of allotments with a legal description, which had first been recommended by

Morris almost four years earlier.

Page 45

139

140

In total 11 percent of the sales that Flanagan reviewed in the “Métis

Family Study” were made before the legal descriptions of the allotments

began to be made known.

Once the final allotments got underway, which allowed the grantees

for the first time, if they wished, to dispose of a described piece of land

rather than the unspecific fruits of a random lottery, there followed a flurry

of activity on the part of the Manitoba Legislature (and presumably

purchasers). On February 28, 1877, The Half-breed Land Protection Act,

1877, S.M. 1877 (40 Vict.), c. 5 (the “1877 Act”), was passed which

provided that sales by deed and for valid consideration, by any Métis having

“legal right to a lot of land” pursuant to s. 31 of the Act would be “legal and

effectual for all purposes” to transfer “the rights of the vendor thereto.” The

1877 Act applied to grantees over the age of 21. Canada did not disallow the

1877 Act. Flanagan notes that by this time it was generally understood that

immediate sales of allotments were permitted.

141

142

Notwithstanding, the delays continued. In an exchange in the Senate

on March 14, 1877, Minister Scott, the new Secretary of State,

acknowledged that the distribution of the grants “was attended with many

embarrassments and reserves were being allotted as rapidly as possible.”

In February 1878, Manitoba passed two further Acts. An Act to

Enable Certain Children of Half-breed Heads of Families to Convey Their

Land, S.M. 1878 (41 Vict.), c. 20 (the “Lands of Half-breed Children Act”),

enabled Métis between the ages of 18 and 21 to sell their lands with the

consent of the parents and the approval of a judge or two justices of the

Page 46

peace, who were directed to examine the child in the absence of parents to

ascertain if the child’s consent was “free and voluntary.”

143

144

Flanagan considered this group to be particularly vulnerable and

concluded “some abuses were unquestionably entailed in allowing eighteen-

year-olds to sell.”

At the same time, Manitoba passed The Act Respecting Infants, S.M.

1878 (41 Vict.), c. 7 (the “Infants Act”), which provided rules for the

disposition of estates and properties of infants upon approval by a judge of

the Court of Queen’s Bench, if found to be “necessary or proper, in the

interest of the infant.” As the trial judge found, “[t]he result was that many

eligible s. 31 recipients sold their interests in lots at varying times and for

varying prices” (at para. 251). Flanagan in his report notes that there were

560 sales carried out between December 1878 and October 1881 under court

guidance pursuant to the Infants Act. Here, too, Flanagan’s opinion was that

abuses had taken place. (It appears that Flanagan is in error in his report

when he states that these sales made up less than ten percent of all children’s

allotments. During cross-examination, he conceded that this figure applied

only to sales by Métis under the age of 18. While it is not entirely clear, it

would appear that Flanagan’s “mental arithmetic” while on the witness stand

resulted in his agreeing that about 35 to 40 percent of the sales involving

Métis “children” were by those under the age of 21.)

145

Flanagan, in answer to the question, “Why did the Métis children

sell?” was of the view that “keeping the land for long-term investment was

probably not a realistic option for most Métis” because there was so much

Page 47

land given to each family unit. He estimated that the typical Métis family

received hundreds of dollars of scrip and over one thousand acres of land.

146

As the allotment process continued, it became evident that a mistake

had been made by Codd and those who accepted his recommendation in the

estimate of the number of persons eligible for a s. 31 grant. As it transpired,

even though a total of 1.44 million acres of land was eventually granted, 993

children were left out.

147

In May 1884, it was recommended that scrip be issued to the children

and all eventually received scrip in the amount of $240 in lieu of land, which

the Order in Council of April 20, 1885, implemented. The Order in Council

also established a deadline of May 1, 1886, for filing claims for children’s

scrip, as well as for heads of families and original settlers. This deadline

was extended at least four times.

148

Deputy Minister of the Interior A. M. Burgess was initially unable to

account for Codd’s error when it first came to his attention in early 1884,

other than to suggest that the “census must have been an incomplete one.”

But from Burgess’s subsequent analysis a year later, it seems that the error

likely arose from Codd’s failure to fully take into account the transitory

nature of Métis families, many of whom would have been absent from the

province during the Machar/Ryan Commission proceedings.

149

To further expedite matters, the Privy Council on July 4, 1878, by

Order in Council, provided authority for the issuance of patents forthwith to

all s. 31 claimants whose claims had been approved “irrespective of age or

sex,” to vest the lands in fee simple. By this time, sales were frequently

Page 48

taking place, with advertisements appearing in the local press; in fact, the

vast majority of sales took place between 1877 and 1882/83.

150

Entirely consistent with this activity, the Manitoba Legislature on

May 25, 1881, in order to remove “great doubt” concerning the “true

interpretation and effect” of certain Manitoba statutes, and the resulting

concerns about titles to the land in question, enacted The Half-breed Lands

and Quieting Certain Titles Act, S.M. 1881 (44 Vict.), c. 19. This legislation

provided that in any court proceeding all deeds of conveyance purporting to

convey an interest in s. 31 lands would be sufficient whether before or after

patent or allotment to vest the interest or rights of such child in the

purchaser.

151

As a result of continuing concerns about the role of the courts in

permitting improvident sales by minors to speculators and others, a

Commission to Investigate the Administration of Justice in the Province of

Manitoba commenced its work in November 1881. During the unusual

proceedings that took place, court officials and others testified, as well as

Chief Justice Wood and Justices Miller and Dubuc of the Court of Queen’s

Bench.

152

During the Commission hearings, Chief Justice Wood opined that

one-third of the whole grant to the Métis had been swept away in a stampede

of transactions, at prices ranging from $40 to $100 for 240 acres of land,

which he considered to be “appalling.” Flanagan considered this evidence to

be inaccurate, but does note that returns on judicial sales were the poorest of

all. It is noteworthy that concern about Chief Justice Wood’s conduct as a

Page 49

judge, and his own role in the process, was one of the major reasons for the

creation of the Commission.

153

Also of significance is the independent report of the counsel to the

Commission in which he described the practice of the court with respect to

the protection provided by The Infants Act as “characterized by an almost

utter recklessness and disregard of the interests of the court’s wards.” In the

end, the matter was so delicate that the Commission elected not to make a

report, but simply transmitted the evidence to the Attorney General.

154

Eventually, Manitoba passed The Quieting of Titles Act, 1885

(assented to on May 2, 1885, and known as The Half-breed Lands Act, S.M.

1885 (48 Vict.), c. 30) on the same day as legislation that introduced the

Torrens system to the province. The purpose of The Quieting of Titles Act,

which applied to “lands which belong to Half-breeds,” was to cure any

“defect, irregularity or omission in the carrying out and completion” of sales

of patented or allotted lands belonging to infant half-breeds pursuant to court

order.

155

As a final postscript, by Order in Council dated December 4, 1893,

the March 23, 1876 Order in Council, which provided that assignments

before grant would not be recognized, was rescinded. The recital to the

1893 Order in Council declared: “if it could have served the purpose for

which it was adopted – that is discouraging speculation in Half-breed lands,

which is very doubtful – the period of its usefulness has certainly passed.”

156

Of considerable assistance in explaining events leading up to, and

following, the creation of the new province of Manitoba is a debate that took

Page 50

place in the House of Commons on July 6, 1885, between Macdonald, once

again Prime Minister, and Edward Blake and others on behalf of the

Opposition. In House of Commons Debates, Vol. XX (6 July 1885),

Macdonald looked back, with the benefit of 15 years of hindsight, on the

creation of the new province (at p. 3113):

… the Government of the day entered into negotiations with certain

delegates from the Province of Manitoba, which culminated in the Act

of 1870, creating Manitoba a Province. In that Act it is provided that in

order to secure the extinguishment of the Indian title 1,400,000 acres of

land should be settled upon the families of the half-breeds living within

the limits of the then Province. Whether they had any right to those

lands or not was not so much the question as it was a question of policy

to make an arrange[ment] with the inhabitants of that Province, in

order, in fact, to make a Province at all – in order to introduce law and

order there, and assert the sovereignty of the Dominion. ... it was

provided that, after a careful calculation, 1,400,000 acres would be

quite sufficient for the purpose of compensating these men for what

was called the extinguishment of the Indian title. That phrase was an

incorrect one, because the half-breeds did not allow themselves to be

Indians. If they are Indians, they go with the tribe; if they are half-

breeds they are whites, and they stand in exactly the same relation to

the Hudson Bay Company and Canada as if they were altogether white.

[emphasis added]

157

158

The highlighted remarks are entirely consistent with the view of Chief

Justice Wood, who in Aikins v. Black (4 July 1879) (Man. Q.B.) wrote that s.

31 grants were made “under the specious guise of the extinguishment of the

Indian title . . . but in truth for the benefit of the half-breeds” (at p. 217).

With respect to the census taken under Lieutenant Governor

Archibald, Macdonald opined (at p. 3113):

... If the census that had been taken and returned by Governor

Page 51

Archibald had been accepted there would have been land enough in the

appropriation to have settled all trouble, as well for the half-breeds who

were actually registered and got their lands as for the half-breeds who

happened to be away on the plains at the time the final adjudication was

made. But it did not suit the Government of the day to accept that. Oh,

no. The claims of the half-breeds in Manitoba were bought up by

speculators. It was an unfortunate thing for those poor people; but it is

true that this grant of scrip and land to those poor people was a curse

and not a blessing. The scrip was bought up; the lands were bought up

by white speculators, and the consequences are apparent. …

159

160

But as we have seen, the accuracy of the 1870 census is by no means

certain.

With respect to the long delay in the issuance of the patents, the

appellants rely on Flanagan’s “Historical Evidence” report at p. 59 where he

states that “[d]epending on administrative difficulties, weeks, months, or

years might elapse between the Lieutenant Governor’s certification and the

Department’s approval of the grant.” His analysis seems to be virtually the

only source of information we have on this topic. Part of the delay may

have been caused by the fact that verification of the thousands of allotments

took place in Ottawa. Whatever the explanation, there can be no doubt that

Canada too was frustrated by the delays. Burgess observed in 1883 that he

was “heartily sick” of the “disgraceful delay which is taking place in issuing

patents.” In a later excerpt from the same quote, Flanagan notes that there

were difficult claims which required the gathering of new information,

sometimes resulting in extensive delays. He concluded that the issuance of

patents usually took between one and two years after completion of the

drawings in a parish. The first grouping of s. 31 patents arrived in August

1877, but patents for the large parish of St. Andrews, for example, were still

Page 52

arriving two years later.

161

162

163

The bulk of patents were issued by 1881, though individual grants

continued to be approved for many years thereafter. A partial explanation

for the delay in issuing patents may be that with almost 6,000 s. 31 patents

and approximately 3,000 s. 32 patents, this was likely a formidable

administrative challenge over a century ago.

With the exception of Codd’s error concerning the number of eligible

s. 31 grantees in the summer of 1876, there is next to no evidence to explain

the multitude of delays, some quite lengthy; for example, the delay for over

a year after Macdonald’s government fell in November 1873, the delay in

issuing the patents, and others of shorter duration.

In the introduction to his report “Historical Evidence,” Flanagan

states, “[t]he major finding of my research is that the federal government

appears to have fulfilled or even overfulfilled its obligations under ss. 31 and

32 of the Manitoba Act” (at p. 4). He attributed much of the cause for the

delay from trying to respond to demands emanating from Manitoba. With

respect to the role of Canada, he concluded (at p. 5):

There is no evidence that anyone in the federal government – in

Parliament, cabinet, or the public service – intended to implement the

Manitoba Act in such a way as to deprive the Métis of their legal

benefits or to encourage them to sell land and scrip and leave the

province. On the contrary, there is a great deal of evidence that federal

officials and statesmen conscientiously tried to meet the desires of the

Métis in carrying out the Act.

164

While it is true that the Métis did not always get their choice (for

Page 53

example, the early homestead claims that preempted a portion of the OTM

from the s. 31 grants), administrative difficulties were to be expected

Flanagan wrote, “in a newly acquired and thinly settled frontier province in

an age when transportation and communications were poor and civil service

was small” (at p. 4). To the extent that benefits were sold, Flanagan

concluded they took place in many instances for substantial amounts of

money by the standards of the day.

165

Finally (at p. 47):

In the last analysis, the Métis got more or less, but not exactly, the

lands they wanted for their reserves. They had to accept second choice

in lieu of perhaps half a dozen townships, and they had to accept a

percentage of homesteaders in some townships. It is a matter of

interpretation and judgment as to whether the degree of impact was

enough to violate Cartier’s promise to Ritchot that “the regulations to

be established from time to time by the Governor General in Council,

respecting that reserve, will be of a nature to meet the wishes of the

half-breed residents” [referring to the letter from Cartier to Ritchot of

May 23, 1870].

166

It is important to keep in mind that neither Flanagan nor Ens focussed

on the identity of the eventual “owner” when transactions had taken place

before delivery of the patent. We do not know, as we do in the case of scrip,

how it came to be that purchasers obtained the patents – the critical first step

to obtain title – and how they came to be registered in the land titles office.

167

Nor do we know for certain in how many instances there were

intermediate “sales” before the patent was issued, for example following

allotments with a legal description once this was permitted in 1877. Filing a

deed or power of attorney in the absence of patent registration constituted

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notice, but not a legally valid sale. It would seem that if a s. 31 grantee

executed a power of attorney, no further action on their part was required to

effect registration once the patent was issued.

168

In contrast to the views expressed by Chief Justice Wood (see para.

152), the “Métis Family Study” concluded that the Métis children’s

allotments were often sold, but, for the most part, not for extremely low

prices. The price received by those who sold after allotment was about

twice as much as those who sold beforehand. The going price for scrip, like

pre-allotment s. 31 land, was about half of its face value.

PART III

SECTION 31

III.1 The Trial Judge’s Findings

169

The trial judge described the appellants’ submissions with respect to s.

31 as follows (at para. 558):

… [re s. 31], the plaintiffs assert that Canada, through Macdonald and

Cartier, who were the senior members of the Federal Government at the

time, negotiated a treaty or an agreement with the Red River delegates,

or at the very least made representations to them, for the purpose of

effecting the entry of Rupert’s Land into Canada as the Province of

Manitoba. The plaintiffs assert that in so doing, Canada was dealing

with aboriginals, the Métis, who enjoyed aboriginal title. They argue

that while there was no surrender of the subject land to the Crown as

exists in the Indian cases, there was an extinguishment by statute which

was recognized by s. 31 of the Act. They assert that in providing for

land grants to the children of the half-breeds, Canada intended to

recognize this extinguishment of aboriginal title and to ensure the

continuance of a land base for the Métis in Manitoba.

170

As we have seen (paras. 63, 64), the appellants rely on Ritchot’s diary

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record and Macdonald’s handwritten note of May 2^ndas strong support for

their assertion that a binding agreement was reached with Macdonald and

Cartier on May 2, 1870. But the trial judge held that Ritchot’s diary entry of

May 2^ndrecorded agreement amongst the delegates alone and not between

the delegates and Macdonald and Cartier. Macdonald’s handwritten note of

the same date, he concluded, was simply his record of the position taken by

Ritchot on behalf of the delegates, and was not evidence of a binding

agreement.

171

In a key finding, the trial judge found that Canada never agreed to

place any of the lands in the new province under the authority or control of

the local legislature (at para. 491). On the evening of May 2, 1870,

Macdonald, prior to the introduction of the printed Bill two days later, stated

that the assistance of the local legislature was subject to the “express

sanction of the Governor General.” Further confirmation was provided by

Ritchot’s telegram to Bunn on May 4^thin which the former stated that “we”

found the Bill satisfactory, with “other points to be settled” (at para. 503). In

the trial judge’s opinion it was not tenable that Cartier and Macdonald, had

they entered into a binding agreement earlier in the day of May 2^nd, would

resile from it just a few hours later.

172

173

In the result, the appellants’ assertion that negotiations began on April

25^thand concluded on May 2^ndwas rejected by the trial judge: “The

evidence, even relying upon Ritchot’s diary, is clearly otherwise” (at para.

507).

The facts, the trial judge found, pointed not to the negotiation of a

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treaty or agreement (referring in particular to ss. 31 and 32 of the Act), but

rather to a Bill en route to passage in Parliament.

174

The trial judge concluded that:

Sections 31 and 32 were not intended for the protection of

minorities. There was no evidence that the Métis considered

themselves to be a minority in the Red River Settlement. The

English and French Métis together constituted a substantial

majority of the persons in the Red River Settlement and

effectively controlled the new Legislature until at least 1876, if

not later.

Section 31 grants, based on the evidence, were given to

recognize the past and present role of the Métis in the Red

River Settlement, so as to ensure the peaceful entry of the Red

River Settlement into Canada. Section 31 was intended to give

the children of the Métis “on a onetime basis an advantage in

the life of the new province over expected immigrants” (at para.

544).

175

The delegates anticipated that the provisions of what became s. 32

could be implemented with reasonable dispatch, and intended that the

province would control the public lands. But the situation changed

dramatically when Canada announced on April 27^ththat it wished to retain

control of public lands.

176

The trial judge noted that the delegates, none of whom were Métis,

were negotiating on behalf of all members of the Red River Settlement and

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were not empowered to enter into a binding agreement.

177

The preamble to s. 31 begins with “And whereas, it is expedient,

towards the extinguishment of the Indian Title to the lands in the Province,

to appropriate .…” The trial judge concluded that, “[p]laced in historic

context, the evidence in this case is overwhelming that the Métis were not

Indians” (at para. 600). He found that the Métis viewed the Indians as

“being inferior” (at para. 601). The Métis saw themselves as fully

enfranchised citizens. They were an active and vital part of a settlement that

had well-developed legislative and judicial institutions in which they

participated. They were not vulnerable or unsophisticated. The Métis were

recorded in the census of the Red River Settlement as separate from the

Indians. While most Métis lived contiguous to one another in parishes laid

out on the basis of language and religion, they did not hold land communally

but individually and were not believers in the non-alienability of their land.

178

With respect to s. 31 generally, while Ritchot objected to the language

of s. 31 he was told by Macdonald and Cartier on May 5, 1870, that if it was

changed the Bill would not pass; the delegates and their principals knew that

the meaning of the reference in the Act to the land grant being “towards the

extinguishment of the Indian Title” was not clear. The trial judge relied in

particular on the comment to the same effect made by Ritchot to the

provisional government of Manitoba on June 24, 1870.

179

It was “evident” to the trial judge that the delegates and their

principals knew that Parliament alone would make the decision with respect

to the rights of the settlers. The delegates’ request that the selection of land

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be made by the Lieutenant Governor on the advice of the local community

was not acceptable to Macdonald and Cartier (who wanted the Lieutenant

Governor to be under the direction of the Governor General in Council),

which the delegates knew as early as May 2, 1870. The delegates also knew

what was happening in Parliament, including the strong opposition to

providing any benefits for the Métis.

180

Any suggestion, the trial judge found, that the Métis desired to own

their land other than individually, was not supported by the evidence and

“intuitively makes no sense given their history and culture” (at para. 928).

While the Métis lived in parishes, there was no communal ownership of

land, and no unanimity among the Métis as to the selection of s. 31 land.

181

Nowhere in the record of discussions or Parliamentary debates was

there any evidence of a promise to create or reserve a Métis land base;

rather, the purpose of s. 31 was to provide a benefit to the Métis by way of a

grant to the children, an interpretation supported by the joint address of the

Manitoba Legislature on February 8, 1872, which confirmed that the land to

be given under s. 31 was to be given absolutely, without restrictions. The

trial judge accepted Canada’s argument that the Act, when looked at in its

entirety, was an essential step in building the new nation.

182

As for Cartier’s letter of May 23, 1870, the trial judge noted that

another interpretation – other than the one advanced by the appellants that

the Métis would be able to pick the lands as they wished – might be that the

land would be selected and distributed in such a way as to satisfy the people

that the process was fair to all recipients. This was accomplished by the

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random lottery.

183

While Ritchot and Taché wanted conditions imposed that would entail

the children’s grants and restrict to some extent their ability to sell, the

Manitoba Legislature and “the people on the ground” did not share that view

(at para. 39). This is consistent, the trial judge concluded, with the language

of s. 31 of the Act, which did not impose any conditions once the land was

granted, leaving the details of the distribution of the s. 31 grants to the

discretion of the Governor General in Council.

184

185

Although Archibald erred in his letter of December 27, 1870, in

recommending that all Métis heads of families as well as children should

share in the s. 31 grants, the only adverse effect from his mistake was to

cause delay in the allocations.

The trial judge’s final comments with respect to s. 31 were (at paras.

651, 653, 656, 658):

When one considers the available evidence, it is unrealistic and in my

view wrong to conclude that Parliament, by enacting section 31,

intended to create aboriginal title or anything tantamount to it, or to

create a land base, particularly a contiguous land base, for the Métis.

And, as a practical matter, the evidence leads to the conclusion that

faced with the demands of the delegates, the directions of the Imperial

Government, the comments of Macdonald and Cartier in particular as

to their wishes and Canada’s obligations to the HBC and the Indians,

and the strong opposition in Parliament to giving anything to Riel and

his followers, the Government could not, or at least would not, have

proceeded to create something tantamount to aboriginal title, including

a land base and particularly a contiguous land base for the Métis.

In my view, a fair conclusion considering all of the relevant evidence is

that the language … [in the preamble to s. 31] … was a political

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expedient used successfully by Macdonald and his government to

satisfy the delegates and make palatable to the Opposition in

Parliament the grant of land to the children of the half-breeds and to

thereby ensure passage of the Act.

In short, what had existed in connection with Métis landholdings before

the passage of the Act would continue thereafter even in respect of the

children’s land grant, namely, that the Métis would continue to be

entitled to own land on an individual rather than communal basis, and

to hold that land or alienate it as they chose.

III.2 The Appellants’ Position Re Section 31

186

The appellants summarized the essence of their claim in the

introduction to their factum as follows:

2.

3.

5.

By section 31 of the Manitoba Act the Aboriginal title of 7,000

Métis children was extinguished and provision made for a grant

of land to each of them. Thus section 31 gave rise to a fiduciary

obligation on the Crown to act in the best interests of the

children in administering the grant of 1.4 million acres.

The provision for grants to the 7,000 children was intended to

be for the benefit of the Métis families, the land to be grouped

according to family, divided and granted promptly, all children

to receive grants and the land to be protected from speculators

until granted and until the grantees reached the age of majority.

The Crown was in breach of its fiduciary obligation in disposing

of the children’s grant by lottery, in delaying the

implementation of the grants for more than a decade, in failing

to ensure that all children received grants, in allowing sales

before grant and before the age of majority, and in standing idly

by while ultra vires legislation was passed by Manitoba which

enabled and facilitated such sales.

187

Virtually all of the trial judge’s principal evidentiary findings are

challenged by the appellants in their factum, notwithstanding their position

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during the oral hearing that it was not, strictly speaking, necessary for them

to do so. This challenge comes as no surprise since, should the trial judge’s

findings be sustained, the appellants’ ability to persuade this court that there

were breaches of fiduciary duty with respect to s. 31 or s. 32 of the Act

becomes virtually impossible.

188

The appellants’ first argument is that the trial judge was wrong to

ignore the evidence that the Métis used the prairies collectively to pursue

their livelihood and that the commons and hay lands were communal.

Furthermore, the trial judge erred when he concluded, notwithstanding the

plain language of the Act, that the 1.4 million acres set aside in s. 31 was not

for the purpose of extinguishing Indian title, but a political expedient to

make palatable to the Opposition the grant of land and thereby ensure

passage of the Act. What Cartier and Macdonald told the House on May 2^nd

and on May 9^th, when they referred to the Métis having “Indian blood,” is

what “the court must go by.”

189

Similarly, the trial judge erred in concluding that the delegates knew

the reference in the land grant to extinguishment of Indian title “was not

clear” (at para. 649). While it is true that Ritchot did report to the Legislative

Assembly of Assiniboia on June 24, 1870, that “the half-breed title, on the

score of Indian blood, is not quite certain,” he went on to explain that “as the

only ground on which the land could be given was for the extinguishment of

Indian title … [i]t was reasonable that in extinguishing the Indian title, such

of the children as had Indian blood in their veins should receive grants of

land.” In effect, what the trial judge found, say the appellants, was that

Macdonald and Cartier misled the delegates and Parliament.

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190

The appellants submit that there is evidence to support the conclusion

that it was in the children’s best interests for the land to stay within the Métis

families as a community. Support is found for this, it is argued, from

Flanagan’s description of the Métis way of life in the Red River Settlement

and Ritchot’s diary entries for May 2^nd, which contemplate the local

legislature ensuring the continuance of the lands in the Métis families “to

settle the children.” The same diary entries record agreement with this

position being addressed by the delegates. Reliance is also placed on

Macdonald’s handwritten note of May 2^nd, which stated that the land was to

be selected “in separate or joint lots having regard to the usages and customs

of the country,” and “distributed as soon as possible amongst the different

heads of half-breed families.”

191

The appellants say that further support for the argument that the

children’s interest was best served by a Métis land base comes from

speeches made by Macdonald and Cartier in the House, where they said that

the lands were for the purpose of settlement of the Métis children. For

example, Macdonald on May 4^thconfirmed in the House that the land was

not being reserved for the benefit of white speculators, and Cartier

commented in the House on April 13, 1871, that “until the children came of

age the government were the guardians” of the land.

192

It is argued that the key to understanding s. 31 is that the grant was to

be “for the benefit of the families of the half-breed residents.” This placed a

limit on Canada’s discretion, and was to be accomplished by grouping grants

according to family, contiguous to or in the neighbourhood of their families’

land, rather than scattering the grants randomly. It was not in their best

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interests that 993 children did not receive grants.

193

Cartier’s letter of May 23^rdis strong evidence, it is argued, of

Canada’s commitment to comply with the wishes of the Métis families; the

trial judge was quite wrong to say that there was no discussion about

children’s grants at the meeting with the Governor General on May 19^th.

III.3 The Respondents’ Position Re Section 31

194

195

In their factums and oral argument on the factual issues we are now

considering, Canada and Manitoba succinctly endorsed the findings and

conclusions of the trial judge.

III.4 How to Approach the Historical Documentary Evidence

I am of the view that while the court must approach historical

evidence in proceedings involving aboriginal claims with sensitivity and a

broad understanding of the evidentiary difficulties that inevitably arise in

such cases, the “special rules” regarding evidence adduced by aboriginal

claimants first referred to in Delgamuukw v. British Columbia, [1997] 3

S.C.R. 1010, are geared exclusively toward non-traditional (primarily oral)

evidence. They have no application where the action, as here, proceeded to

trial based entirely on documentary evidence.

196

Nor do the fundamental precepts of evidentiary law change when a

claim is made by an aboriginal band against the Crown for breach of

fiduciary duty and honour of the Crown. In Chippewas of Mnjikaning First

Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, the plaintiff

argued that the trial judge erred in failing to permit the fiduciary duty “to

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inform his perspective of the evidence-weighing process” (at para. 216).

197

A unanimous Ontario Court of Appeal characterized this argument as

(at para. 220):

… essentially an attempt to persuade the court that because the

Supreme Court of Canada has underscored the importance of the sui

generis fiduciary obligation owed by the federal Crown to First Nations

with respect to dealings involving First Nations’ lands – and has stated

that “treaties and statutes relating to Indians should be liberally

construed and doubtful expressions resolved in favour of the Indians”

(Nowegijick [[1983] 1 S.C.R. 29], at p. 36) – the trial judge must

resolve conflicting testimony about the words and conduct of parties in

favour of Aboriginals on the same basis. …

198

To this submission the court emphatically responded (ibid.):

… A trial judge must weigh and assess conflicting evidence in the same

way as he or she always does – dispassionately, against the record as a

whole, and with due consideration for any particular sensibilities

(cultural or otherwise) that may impact upon a witness’s testimony. …

199

200

I am in entire agreement with this conclusion.

Even with respect to those instances where oral histories are the only

available evidence in a Crown-Aboriginal dispute, so that an

accommodation has developed for such testimony to be admitted for justice

to be done (see R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 68, and

Delgamuukw at para. 87), there are limits. The purpose of this

accommodation was to place such histories “on an equal footing with the

types of historical evidence that courts are familiar with, which largely

consists of historical documents” (Delgamuukw at para. 87).

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201

In Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, McLachlin

C.J.C. confirmed that “[o]ral histories are admissible as evidence where they

are both useful and reasonably reliable, subject always to the exclusionary

discretion of the trial judge” (at para. 31). And (at para. 38):

… consciousness of the special nature of aboriginal claims does not

negate the operation of general evidentiary principles. While evidence

adduced in support of aboriginal claims must not be undervalued,

neither should it be interpreted or weighed in a manner that

fundamentally contravenes the principles of evidence law, which, as

they relate to the valuing of evidence, are often synonymous with the

“general principles of common sense” ….

III.5 Burden of Proof

202

In several instances, the appellants argue there was no evidence that

the arrangements as allegedly contemplated by the Métis with respect to the

s. 31 lands (non-alienability of the land, families clustered together, and the

like) would not have worked successfully (and therefore were in the best

interests of the Métis children). The trial judge was also wrong, they say, in

failing to draw an adverse inference from the very long, unexplained delay

in implementing the s. 31 grant.

203

These arguments directly raise the issue of onus. There are some

authorities in fiduciary litigation that place the onus of proof upon the

defendant (such as in determining damages or when a fiduciary has put itself

in a conflict of interest), that have been applied in Crown-Aboriginal

fiduciary cases including Blueberry River Indian Band v. Canada

(Department of Indian Affairs and Northern Development), [1995] 4 S.C.R.

344, and Guerin v. The Queen, [1984] 2 S.C.R. 335. The Supreme Court of

Page 66

Canada has also referred to a “presumption” that fiduciary obligations may

arise within a fiduciary relationship in cases such as Lac Minerals Ltd. v.

International Corona Resources Ltd., [1989] 2 S.C.R. 574, and M.(K.) v.

M.(H.), [1992] 3 S.C.R. 6, but that presumption, if this is what it is, has not

been applied in the Supreme Court’s Crown-Aboriginal fiduciary cases.

204

205

One of the situations in which a reverse onus is applied is when a

fiduciary is engaged in self-dealing or otherwise in a conflict of interest.

Forbidding a fiduciary from self-dealing is explained by Donovan W.

M. Waters, Q.C., ed.-in-chief, et al., in Waters’ Law of Trusts in Canada, 3^rd

ed. (Toronto: Thomson Carswell, 2005) as follows (at p. 877):

It is a fundamental principle of every developed legal system that one

who undertakes a task on behalf of another must act exclusively for the

benefit of the other, putting his own interests completely aside. ….

[N]o one may allow his duty to conflict with his interest. …

Waters notes that the burden of proof is “particularly heavy where the nature

of the fiduciary relationship is intense” (at p. 887, n. 140).

206

The onus applying to self-dealing fiduciaries was raised by McLachlin

J., as she then was, in Blueberry River. She wrote in dissent, but the

majority concurred with her on this issue (at para. 1). The issue arose with

respect to whether the Crown had breached its fiduciary duty by selling the

Bands’ land to the Director under The Veterans’ Land Act at an inadequate

price. McLachlin J. wrote, “[t]he trial judge was correct in finding that a

fiduciary involved in self-dealing, i.e. in a conflict of interest, bears the onus

of demonstrating that its personal interest did not benefit from its fiduciary

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powers” (at para. 53).

207

For our purposes there are two main points that arise from the

Supreme Court’s decision in Blueberry River:

– A self-dealing fiduciary carries the onus to prove on a prima facie

basis that the sale price was reasonable, upon proof of which the

onus shifts to the beneficiary to prove that the price was

unreasonable. Significantly for our purposes, the trial judge’s

finding that the onus was on the plaintiff bands to prove other,

non-self-dealing breaches of fiduciary duty was not questioned in

the Court of Appeal or Supreme Court.

– No special onus rule was applied to any other part of the case.

208

We need not consider under what circumstances the Crown can be a

self-dealing fiduciary; this is because it is clear that the Crown’s role in the

present case does not constitute self-dealing. As J. C. Shepherd explains in

The Law of Fiduciaries (Toronto: Carswell, 1981) at 157-59, cited by

McLachlin J. at para. 53, the basis of the reverse onus in a self-dealing

situation lies in the fiduciary’s wide variety of options to misuse their power

(and to avoid detection) and the beneficiary’s lack of awareness.

209

Another aspect of fiduciary litigation in which the onus is sometimes

placed on the fiduciary is in determining damages, an issue that arises only

after it has been proven both that there is a fiduciary obligation and a breach.

This rule was applied in the Crown-Aboriginal context in Guerin (per

Wilson J.) and in Whitefish Lake Band of Indians v. Canada (Attorney

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General), 2007 ONCA 744, 87 O.R. (3d) 321. The appellants have relied

upon some of the case law pertaining to the reverse onus regarding damages

in their factum, arguing this case law applies as well to their request for a

declaration.

210

211

212

La Forest J., writing under the heading “Damages” for four of seven

judges in Hodgkinson v. Simms, [1994] 3 S.C.R. 377, wrote that there is a

“… long-standing equitable principle that where the plaintiff has made out a

case of non-disclosure and the loss occasioned thereby is established, the

onus is on the defendant to prove that the innocent victim would have

suffered the same loss regardless of the breach ….” (at p. 441).

It should be noted that Hodgkinson and two other authorities referred

to therein, Commerce Capital Trust Co. v. Berk (1989), 57 D.L.R. (4^th) 759

(Ont.C.A.) and London Loan & Savings Co. v. Brickenden, [1934] 2

W.W.R. 545 (P.C.), all dealt with a fiduciary whose breach was non-

disclosure, and who sought to prove that the beneficiary would have taken

the same course of action even if proper disclosure had been made.

In Whitefish, the Crown admitted that there was a fiduciary duty and

that it had been breached, leaving the content of the fiduciary duty and

damages in issue. Laskin J.A., for the court, noted as follows: “In the

absence of evidence to the contrary – and there is virtually none – equity

presumes that the defaulting fiduciary must account to the beneficiary on a

basis most favourable to the beneficiary” (at para. 102), and “equity

presumes that the trust funds [for the band] will be invested in the most

profitable way or put to the most advantageous use” (at para. 49).

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213

In the appellants’ factum, after acknowledging that no claim for

damages or equitable compensation was being advanced, they state:

There was no evidence to establish that if the Crown had acted in a

timely way, Métis-owned lands, grouped according to family, would

not have been possible to achieve for all the children.

214

215

The appellants rely on Hodgkinson and Whitefish for support. In my

opinion, the reliance placed on the reverse onus regarding damages is

misplaced given that there is no claim for damages.

It seems to me that the appellants are, in effect, attempting to apply a

reverse onus to the question of whether or not a fiduciary duty has been

breached. But because a fiduciary’s conduct is measured not by results but

by its actual behaviour, complaints by the Métis about the end result cannot

lead to the conclusion that a fiduciary duty was breached.

216

Ultimately, the fact that beneficiaries are given the benefit of the

doubt in the course of determining damages cannot be used to demonstrate a

breach of fiduciary duty. These are two separate steps, based on separate

conclusions. Only facts relevant to whether the fiduciary’s conduct was

below the standard can be used to determine whether a duty was breached.

217

218

In my opinion, it can safely be said that there is no general rule which

provides that there is a general onus on the fiduciary, including with respect

to whether a fiduciary obligation exists.

Thus, as in virtually all other instances the dictum “he/she who asserts

bears the burden of proof” is alive and well (see Authorson (Litigation

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Administrator of) v. Canada (Attorney General), 2007 ONCA 501, 86 O.R.

(3d) 321 at para. 137, hereinafter “Authorson,” leave to appeal refused,

[2007] S.C.C.A. No. 472 (QL)). It applies to the question whether Canada’s

actions constituted a breach of any fiduciary duty owed to the Métis.

219

But I would be remiss if I did not briefly note that there is authority

which suggests that in some circumstances there may be a “presumption” –

once a fiduciary relationship has been established – that a fiduciary

obligation of some sort is owed.

220

221

In a very few cases, but none involving a Crown-Aboriginal fiduciary

relationship, the Supreme Court has written about a “presumption” that

fiduciary obligations are owed within a fiduciary relationship.

Prominent among these decisions is Lac Minerals. La Forest J.,

writing in dissent on this issue, found that a fiduciary duty was owed

between parties negotiating a joint mining venture. Writing about fiduciary

relationships that existed “because of their inherent purpose or their

presumed factual or legal incidents” (at p. 646), he stated “the presumption

that a fiduciary obligation will be owed in the context of such a relationship

is not irrebuttable, but a strong presumption will exist that such an obligation

is present” (at p. 647).

222

In Lac Minerals, Sopinka J. and Wilson J. made similar comments

about a presumption of fiduciary obligations within what Sopinka J. referred

to as “traditional relationships” (at p. 598) and Wilson J. as “certain

relationships which are almost per se fiduciary” (at p. 631). See as well

M.(K.) v. M.(H.).

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223

More recently, in Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R.

247, Cromwell J., writing for the court, commented (at para. 36):

Certain categories of relationships are considered to give rise to

fiduciary obligations because of their inherent purpose or their

presumed factual or legal incidents: Lac Minerals Ltd. v. International

Corona Resources Ltd., [1989] 2 S.C.R. 574, per La Forest J., at p.

646.

These categories are sometimes called per se fiduciary

relationships. There is no doubt that the solicitor-client relationship is

an example. It is important to remember, however, that not every legal

claim arising out of a per se fiduciary relationship, such as that between

a solicitor and client, will give rise to a claim for a breach of fiduciary

duty.

[emphasis added]

224

225

Per se fiduciary duties are to be contrasted with ad hoc fiduciary

duties which can arise in non-“traditional” circumstances.

In my opinion, the most that can be said is that the Supreme Court has

recognized that there is an assumption that some kind of fiduciary

obligations exist within a fiduciary relationship; but at the same time most

fiduciary cases make no reference to it – significantly, the Supreme Court’s

Crown-Aboriginal fiduciary duty cases. In Galambos, the court was content

to indicate that fiduciary relationships are considered (rather than presumed)

to give rise to fiduciary obligations.

226

227

For the purposes of this appeal, I prefer to treat the “presumption” as

simply a common sense recognition that fiduciary obligations are likely to

arise with respect to some issues within a fiduciary relationship.

None of this assists the appellants on the facts before the court. The

“presumption,” whatever its strength, cannot operate so as to reverse the

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burden of proof or place an onus on the Crown when it comes to the

existence and content of any fiduciary obligation.

III.6 Standard of Review

228

229

230

As every lawyer who does appellate work well knows, the standard of

review for findings of fact or mixed findings of fact and law is palpable and

overriding error where a question of law is not extractable from the factual

matrix. The standard of review for pure questions of law is, as it always has

been, correctness.

In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the

majority of the Supreme Court ruled that the standard of review in assessing

both direct findings of fact and findings based on inferences of fact was that

of palpable and overriding error. This standard was confirmed in H.L. v.

Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401.

The application of the palpable and overriding error standard was

recently reviewed by Steel J.A. of this court in Knock v. Dumontier et al.,

2006 MBCA 99, 208 Man.R. (2d) 121 (at paras. 21-23):

… Justices Iacobucci and Major, writing for the majority, in Housen v.

Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272

W.A.C. 1; 2002 SCC 33, also set out the standard of appellate review

for both “findings of fact” and “inferences of fact”. Addressing

“inferences of fact”, the justices commented (at para. 23):

We reiterate that it is not the role of appellate courts to second-

guess the weight to be assigned to the various items of evidence.

If there is no palpable and overriding error with respect to the

underlying facts that the trial judge relies on to draw the

inference, then it is only where the inference-drawing process

itself is palpably in error that an appellate court can interfere

Page 73

with the factual conclusion. The appellate court is not free to

interfere with a factual conclusion that it disagrees with where

such disagreement stems from a difference of opinion over the

weight to be assigned to the underlying facts.

What is palpable and overriding error? In Housen, the Supreme Court

accepted the dictionary definitions of the word “palpable”, pointing out

that “[t]he common element in each of these definitions is that palpable

is plainly seen” (at para. 6). The Ontario Court of Appeal, in Waxman

et al. v. Waxman et al. (2004), 186 O.A.C. 201; 44 B.L.R. (3d) 165

(C.A.), gave some examples of palpable error (at para. 296):

Examples of “palpable” factual errors include findings made in

the complete absence of evidence, findings made in conflict

with accepted evidence, findings based on a misapprehension of

evidence and findings of fact drawn from primary facts that are

the result of speculation rather than inference.

Not only must the error be palpable, but it must also be overriding. The

court in Waxman went on to define an “overriding” error (at para.

297):

An “overriding” error is an error that is sufficiently significant

to vitiate the challenged finding of fact. Where the challenged

finding of fact is based on a constellation of findings, the

conclusion that one or more of those findings is founded on a

“palpable” error does not automatically mean that the error is

also “overriding”. The appellant must demonstrate that the error

goes to the root of the challenged finding of fact such that the

fact cannot safely stand in the face of that error: Schwartz v.

R., [1996] 1 S.C.R. 254 … at 281.

231

The policy reasons upon which this standard of review is based go

beyond recognizing the trial judge’s superior position in assessing viva voce

evidence to include preserving judicial resources and promoting the

autonomy and integrity of trial proceedings. In addition, the trial judge’s

advantage in making factual findings is not limited to instances where viva

voce evidence has been heard but extends to their relative expertise in

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weighing and assessing evidence and their familiarity with the case in its

entirety.

232

In The Honourable Roger P. Kerans & Kim M. Willey, Standards of

Review Employed by Appellate Courts, 2^nded. (Edmonton: Juriliber, 2006)

at 148, the authors wrote that in the wake of Housen, “it is clear that the

main reason for deference, as now confirmed, is that it is not appropriate for

reviewing tribunals to re-try cases.” Kerans and Willey thus recognized that

the palpable and overriding standard of review applies to inferences of fact,

but, without citing any authority, suggested a caveat to that strict standard (at

pp. 150-51):

… The truism about the appeal court being equally competent to draw

an inference does not warrant interference, because it should only

intervene if it is better able to draw an inference.

We can, however, think of cases where the inference drawn may be

precedential, and many others where guidance is required. It is the

duty of the reviewing court to make rules to overcome errors in

conventional wisdom, or examples of cultural blindness. We should

not think that the standards of review in any way prevent intervention

on that ground.

233

234

235

But subject to this cautionary note, even when an appellate court is as

well placed as the trial judge to make a finding, strong reasons for deference

remain.

Recent appellate authority, with which I agree, makes clear that no

less deference should be shown to trial judges’ inferences and conclusions of

fact drawn from documentary evidence.

In FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods

Page 75

Ltd., 2007 ONCA 425, 85 O.R. (3d) 561, Laskin J.A., for the court,

explained the rationale for deference as follows (at para. 46):

… The principle of appellate deference to a trial judge’s fact-finding

and inference-drawing applies even when the entire trial record is in

writing. That is so because the principle of deference is grounded in

more than a trial judge’s ability to see and hear the witnesses.

Deference recognizes that even on a written record, the trial judge

“lives through” the trial while a court of appeal reviews the record only

through the lens of appellate review. Deference also preserves the

integrity of the trial process, maintains the confidence of litigants in

that process, reduces the number and length of appeals and therefore,

the cost of litigation, and appropriately presumes that trial judges are

just as competent as appellate judges to resolve disputes justly.

236

See as well Gottardo Properties (Dome) Inc. et al. v. Regional

Assessment Commissioner, Region No. 9 et al. (1998), 111 O.A.C. 272. The

Alberta Court of Appeal came to the same conclusion in Andrews v. Coxe,

2003 ABCA 52, 320 A.R. 258, writing that Housen had “by plain

implication” rejected the appellants’ contention that “an appeal court can

upset fact findings more easily when the evidence is written, not oral” (at

para. 16). Similarly, the same court in J.N. v. G.J.K. et al.¸ 2004 ABCA

394, 361 A.R. 177, held that “deference is appropriate whether the evidence

is oral or documentary” (at para. 21).

237

I conclude that the standard of review as mandated by the Supreme

Court in Housen and H.L. applies with full force to the findings of fact and

inferences therefrom made by the trial judge from the historical

documentary evidence before him.

Page 76

III.7 Analysis and Decision

238

With very few exceptions – to be reviewed shortly – there was

evidence, in many instances overwhelming evidence, to support the trial

judge’s conclusions with respect to the context and purpose of s. 31 of the

Act, as well as the inferences that he drew from them. In summary, his

critical findings are:

a)

there was no request for, expectation of or consideration given

by Canada to create a Métis homeland or land base, contiguous

family or community holdings of s. 31 grants; the phrase

“family block” was not recorded as having been used in the

discussions with the delegates, or in Parliament. (Indeed, there

is no reference to this goal in Ritchot’s diary or any other

contemporaneous document.) More specifically, not only was

there no intention or obligation on the part of Parliament to

create a “family block,” there was no suggestion by the

delegates that the Métis had a land base, or wanted one;

b)

c)

the Métis had always owned land individually, not communally,

and bought and sold land as such; there was no evidence of any

desire to the contrary. What had existed for Métis landholdings

before the Act would continue for the s. 31 grants;

contrary to the wishes of Taché and Ritchot, “the people on the

ground” did not want to entail the land, or otherwise restrict the

ability of Métis children to sell. The Métis did not believe in

the non-alienability of their land;

Page 77

d)

e)

the s. 31 grant was intended to give the individual Métis child a

leg up or head start in light of the expected influx of immigrants

but not to create a right of first choice;

by the evening of May 2, 1870, Macdonald made it clear in

Parliament that while it was “proposed to invoke the aid and

intervention, the experience of the local legislature,” with

respect to the s. 31 grants, such involvement was subject to “the

sanctions of the Governor General”; nor did Macdonald or

Cartier commit Canada to involving the local legislature;

f)

s. 31 was essentially a political expedient to bring about

Manitoba’s entry as a new Canadian province; and

g)

with respect to whether a binding “agreement” or undertaking

was made by Cartier and Macdonald on behalf of Canada with

the delegates “to ensure the continuance of a land base,”

Ritchot’s diary entry for May 2^ndand the handwritten note of

Macdonald bearing the same date (which appears to be a rough

draft of what ultimately became s. 31) were not evidence of an

agreement or undertaking by Macdonald and Cartier, but simply

represented the position of the delegates.

239

As we have seen, the trial judge’s findings of fact are owed deference.

This is so even if the trial judge was mistaken about the applicable law. As

this court noted in R. v. Blais (E.L.J.), 2001 MBCA 55, 156 Man.R. (2d) 53

(at para. 48):

Page 78

Notwithstanding the trial judge’s error in his legal focus, deference is

still owed to findings of fact made at trial, even in constitutional cases

that involve an examination of historical fact. In Delgamuukw, Lamer,

C.J.C., explained that (at paras. 79-80):

The policy reason underlying this rule is protection of “[t]he

autonomy and integrity of the trial process” (Schwartz v.

Canada, [1996] 1 S.C.R. 254, at p. 278), which recognizes that

the trier of fact, who is in direct contact with the mass of the

evidence, is in the best position to make findings of fact,

particularly those which turn on credibility. Moreover, Van der

Peet clarified that deference was owed to findings of fact even

when the trial judge misapprehended the law which was applied

to those facts, a problem which can arise in quickly evolving

areas of law such as the jurisprudence surrounding s. 35(1).

240

241

I find that the evidence strongly supports the trial judge’s conclusions.

None of the foregoing findings of the trial judge constitute error, let alone

palpable and overriding error.

The appellants take exception to the trial judge’s conclusion that

Canada did not take control of land formerly controlled by the Métis people.

But at least with respect to s. 32, this finding is quite correct since the

purpose of that section was to quiet titles and ensure peaceful possession of

existing landholdings. Insofar as s. 31 is concerned, until 1871 almost all

the land utilized for the s. 31 grants was outside the settlement belt where

Indian title was not extinguished.

242

The same thing can be said with respect to the trial judge’s conclusion

that s. 31 was essentially a political expedient and the reference to

“extinguishment of the Indian Title,” was the vehicle of convenience chosen

to accomplish it. A review of the history of the discussions in Parliament in

Page 79

early May 1870, references to Ritchot’s diary, and Macdonald’s statements

in the House in 1885 earlier referred to, are all evidence supporting the trial

judge in this instance.

243

244

245

There can be no doubt, as the trial judge found, that the aboriginality

of the Métis was (and is) distinctly different than that of the Indians. Strong

support for this conclusion is found in the comment made by Macdonald in

1885, noted earlier in these reasons at para. 156 and referred to by the

Supreme Court in R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 at para.

22.

There can also be no doubt that the Métis were the cornerstone of a

thriving settlement; and so they were until the Wolseley expedition soldiers

arrived on the scene in the fall of 1870, after which serious incidents of

discrimination and improper behaviour toward the Métis occurred for a time

(see para. 95). Fortunately for all, as Ens testified, the reporting of such

incidents almost entirely occurred in the early 1870s.

The important differences between Indians and Métis (in the

nineteenth century and today) and the fact that this is not a traditional

historic land claim could well be factors when considering the nature and

extent of any fiduciary obligation owed to the Métis. But, as we shall see,

assessing the significance of these factors is not an easy task.

III.7.1 Discretionary Nature of Declaratory Relief

246

At the outset, it must be noted that the appellants are not seeking

personal remedies, but are instead seeking declaratory relief, admittedly in

Page 80

aid of extra-judicial political redress. As described by the trial judge in the

opening paragraph of his judgment: “Their purpose in seeking such relief is

simply to assist them in future negotiations with the Governments of Canada

and Manitoba to achieve a land claims agreement and thereby correct the

asserted historical wrong.” The specific declarations sought by the

appellants were listed by the trial judge in para. 5 of his reasons for decision.

247

As Lazar Sarna, The Law of Declaratory Judgments, 3^rded. (Toronto:

Thomson Canada Limited, 2007) explains at p. 2, “[t]he inherent function of

the court is to declare, in the sense of confirm, the rights of the parties

seeking judicial intervention. The premise underlying the declaratory

recourse is that judicial recognition of certain rights should not be withheld

from the parties for reasons relating strictly to the procedural obstacles

characteristic of other judicial remedies.” A declaratory judgment “is a

judicial statement confirming or denying a legal right of the applicant.

Unlike most rulings, the declaratory judgment merely declares and goes no

further in providing relief to the applicant than stating his rights. While

consequential relief may be joined or appended, the court has the power to

issue a pure declaration without coercive direction for its enforcement” (at p.

1). In Manitoba, s. 34 of The Court of Queen’s Bench Act, C.C.S.M., c.

C280, provides that “[t]he court may make a binding declaration of right

whether or not consequential relief is or could be claimed.”

248

It is well settled that the granting of declaratory relief is discretionary.

See Solosky v. The Queen, [1980] 1 S.C.R. 821 at 832-33; Kourtessis v.

M.N.R., [1993] 2 S.C.R. 53; Hongkong Bank of Canada v. Wheeler Holdings

Ltd., [1993] 1 S.C.R. 167 at 191-92, and Sarna at pp. 2, 18. On appeal,

Page 81

Canada emphasized the discretionary nature of declaratory relief and

submitted that the trial judge properly refused to exercise his discretion.

249

Where a trial judge’s decision is discretionary, it is well settled that

the appropriate standard of review to be applied is that enunciated by the

Supreme Court of Canada in Elsom v. Elsom, [1989] 1 S.C.R. 1367, referred

to by this court in Homestead Properties (Canada) Ltd. v. Sekhri et al., 2007

MBCA 61, 214 Man.R. (2d) 148 at para. 13, namely, that the decision

should not be overturned unless the judge has misdirected himself as to the

law, his decision is so clearly wrong as to amount to an injustice, or he

committed a palpable and overriding error: see, for example, Hozaima v.

Perry et al., 2010 MBCA 21 at para. 17, and Penner et al. v. Quintaine (P.)

& Son Ltd., 2007 MBCA 159, 225 Man.R. (2d) 44 at para. 16.

250

As declaratory relief is discretionary, the trial judge’s decision not to

exercise his discretion to grant such a remedy in this case is entitled to

significant deference. For the reasons set out herein, I have not been

persuaded to interfere with the trial judge’s alternative ruling to exercise his

discretion to deny the appellants the declaratory relief they seek.

III.7.2 Standing

251

Another preliminary issue to be addressed in this case is the standing

of the appellants to advance these claims. As explained by Sarna in his text

on declaratory judgments (at p. 19):

Locus standi [or “standing”] refers to the right of a party to appear or

plead before the court on a question which is deemed to be of interest

to that party. Standing or interest confers upon an applicant the right to

be heard as distinct from the right to succeed in an action or proceeding

for relief. …

Page 82

252

253

At trial, Canada and Manitoba conceded that the individual appellants

had standing, but argued that the Manitoba Métis Federation (the “MMF”)

did not. The trial judge denied the MMF standing in the action, which

finding is now appealed.

As described in para. 345 of the trial judgment, the individual

appellants were conceded by Canada and Manitoba to be “members of the

Manitoba Métis community and descendants of persons … entitled to land

and other rights pursuant to ss. 31 and 32 of the Act.” In para. 347, the trial

judge noted that there was no evidence regarding ancestral links between the

membership of the MMF and the Métis of the area prior to and at July 15,

1870.

254

While the trial judge recognized that the MMF filled a role as a

representative of Métis in Manitoba in a political sense, he was not

convinced that they had legal standing to participate in this case. He

rejected the appellants’ argument that standing had been decided at an earlier

point in the case and that the respondents were therefore estopped from

challenging the MMF’s standing at this point. Alternatively, he would have

exercised his discretion and not allowed the doctrine of issue estoppel to

prevail in the circumstances. Moreover, he was not persuaded that the MMF

met the test developed by the Supreme Court regarding public interest

standing. For these reasons, he concluded that the MMF did not have

standing to advance these claims.

III.7.2(a) Positions of the Parties Re Standing

255

On appeal, the appellants argue that the trial judge erred in denying

Page 83

the MMF standing. They submit that the relevant criteria for establishing

public interest standing are present in this case. Furthermore, they stress that

all appellants have a collective interest in obtaining a resolution of the issues

raised in this case. As such, they say that the MMF should be granted

standing.

256

In response, Canada points to the deferential standard of review

applicable to decisions regarding standing. They argue that the trial judge

did not err in denying the MMF standing in this matter. Furthermore, they

observe that the benefits provided by ss. 31 and 32 of the Act inured to

individuals, not collectives or corporate entities such as the MMF. Canada

denies that the Red River Métis were a collective prior to passage of the Act

and says that the Act clearly bestowed rights on individual persons, not on a

collectivity. Citing examples from the jurisprudence, Canada argues that

courts have denied corporate plaintiffs standing in aboriginal cases dealing

with historic grievances, where interested individuals are capable of bringing

the claims forward. For these reasons, Canada supports the decision of the

trial judge denying the MMF standing.

257

Like Canada, Manitoba emphasizes the deferential standard of review

applicable to decisions regarding standing. As stated in para. 34 of its

factum, “Manitoba submits that granting public interest standing is

discretionary and the trial Judge’s decision is deserving of deference and can

only be disturbed on the basis of palpable and overriding error.” Manitoba

argues that the trial judge did not commit any palpable or overriding error on

this point.

Page 84

258

Manitoba’s concession regarding the standing of the individual

appellants is explained as follows (at para. 178 of its factum):

The genealogical and land titles evidence tendered at the trial

established that eleven of the seventeen named Plaintiffs had ancestors

who entered into transactions involving section 31 lands. These

transactions would have been governed by the Manitoba statutes that

the Plaintiffs seek to have declared unconstitutional. Manitoba took no

exception at trial to the standing of these individuals to challenge the

constitutionality of the impugned enactments.

259

260

However, Manitoba noted that none of the appellants, including the

MMF, alleged that any transaction of an ancestor was affected by The Lands

of Half-breed Children Act. Thus, Manitoba argues, all of the appellants

lack standing to challenge this particular statute.

With respect to the MMF, Manitoba submits that it lacks direct

standing, as it was not directly impacted by any of the impugned statutes.

Similarly, the trial judge did not err in finding that the MMF could not

satisfy the test for obtaining public interest standing.

III.7.2(b) Conclusion Re Standing

261

It is trite to say that a trial judge’s decision regarding standing is

discretionary (see, for example, Canadian Council of Churches v. Canada

(Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at 253). As

such, the deferential standard of review applicable to discretionary decisions

described above in connection with declaratory relief is also applicable to

the issue of standing.

262

As explained, decisions regarding standing and declaratory relief are

Page 85

both discretionary in nature. As to the relationship between standing and

declarations, Sarna writes (at pp. 19-20):

In seeking guidance from the case law for principles governing the use

of discretion to grant a declaration, one is met with a double world of

discretionary power which unfortunately blurs analysis. The court has

sufficient leeway, perhaps tantamount to outright discretion, to decide

whether or not an applicant for relief has legal interest to sue; at the

same time, the court in its absolute discretion may decide whether or

not declaratory relief is suitable and should be granted. Although

standing, or the right to request relief, is a matter entirely different

from, but not independent of, the right to relief, the decision to deny

legal standing has usually been made not in the name of discretion to

determine standing, but in the name of the declaratory discretion, as if

the reasons for denial are unique to and characteristic of the declaratory

remedy. In other instances, it has been assumed that the locus standi of

an applicant must be determined in light of the special relief sought,

and that accordingly declaratory discretion and discretion on standing

must unavoidably suffer a degree of fusion.

263

264

In this case, the trial judge appropriately addressed the issues of

standing and declaratory relief separately, though both related to the exercise

of his judicial discretion.

The issues of standing and mootness are closely related. Questions of

standing often arise where a matter is moot before it is even brought to court,

whereas the mootness doctrine is usually only engaged when a live dispute

becomes moot during the course of its progress through the courts.

Professor Peter W. Hogg, Constitutional Law of Canada, looseleaf (Toronto:

Carswell, 2007) explains (at para. 59.3(a)):

… Mootness is like an absence of standing in that the court is being

invited to rule on an issue that has no direct impact on the parties to the

proceedings. The difference is that standing is judged at the

commencement of the proceedings, whereas mootness is judged after

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the commencement of the proceedings. The parties to a moot case had

a real dispute when the proceedings commenced, but the passage of

time caused the dispute to disappear. …

265

Hogg observes that “[m]ootness, it has been said, is ‘the doctrine of

standing set in a time frame’” (at p. 59-19, n. 78). Hogg further notes that

“[t]he rule against deciding moot cases flows from the same policy

considerations as those that support restrictions on standing” (at para.

59.3(b)).

266

Robert J. Sharpe, ed. (now Mr. Justice Sharpe) shares this view of the

interconnection between mootness and standing. In Charter Litigation

(Toronto and Vancouver: Butterworths, 1987) he wrote (at pp. 331-32):

The term “moot” is used to describe those situations where a concrete

issue once divided the parties, but by the time the case comes on for

decision, that issue has for some reason ceased to exist. Mootness

presents a problem similar to that encountered in cases dealing with

standing and hypothetical or abstract issues in that the parties are not

seeking a precise remedy they can implement, but rather are asking for

the court’s opinion on a point of law. There is, however, an important

difference. Standing and hypothetical or abstract question cases

typically present situations where no concrete issue ever existed. …. In

a mootness situation, at some time, usually even after suit was

commenced there was a tangible and undeniably litigable question on

which the parties could join issue in the usual adversarial way.

Mootness cases are, then, a rather special version of the phenomenon of

public law litigants’ concern over a point of law rather than a specific

remedy. The parties have, at one time, been able to concretize, in the

form of a traditional adversarial dispute, the point they want resolved,

but that concrete dispute has disappeared before the final resolution of

the case and before the court has pronounced upon the point of law the

parties hope to resolve.

267

In this instance, the arguments of the parties regarding mootness

Page 87

might more accurately have been directed at the issue of standing, as there is

no assertion by any party that the alleged mootness arose after this matter

came before the courts. However, the respondents chose not to challenge

the standing of the individual appellants, but chose to argue mootness

instead. Given that it does not appear to be an absolute requirement of the

mootness doctrine that a concrete legal dispute exists between the parties at

some point after the commencement of the suit, this court will follow the

approach taken by the parties and address these issues in connection with

mootness, instead of with respect to the appellants’ standing.

268

As for the trial judge’s decision that the MMF did not meet the

criteria for public interest standing, I have not been persuaded to interfere

with his discretionary decision. The trial judge referred to and properly

applied the leading cases. He relied in particular on the leading authority of

Canadian Council of Churches, where Cory J., for the court, wrote (at pp.

252-53):

It has been seen that when public interest standing is sought,

consideration must be given to three aspects. First, is there a serious

issue raised as to the invalidity of legislation in question? Second, has

it been established that the plaintiff is directly affected by the

legislation or if not does the plaintiff have a genuine interest in its

validity? Third, is there another reasonable and effective way to bring

the issue before the court?

Cory J. observed that it is the third criteria that can give rise to real

difficulty, noting (at p. 252):

The whole purpose of granting status is to prevent the immunization of

legislation or public acts from any challenge. The granting of public

interest standing is not required when, on a balance of probabilities, it

can be shown that the measure will be subject to attack by a private

Page 88

litigant. The principles for granting public standing set forth by this

Court need not and should not be expanded. The decision whether to

grant status is a discretionary one with all that that designation implies.

…

There is no justification for interfering with the trial judge’s exercise of

discretion to deny standing to the MMF.

III.7.3 Limitations

269

A threshold issue to be addressed in this case is whether or not any or

all of the claims advanced by the appellants are barred by statutory

limitation periods. In addressing this issue, the appellants’ claims may be

categorized as a claim for breach of fiduciary duty and claims alleging

unconstitutionality. As noted above, the appellants are not seeking personal

remedies, but are instead seeking declaratory relief, admittedly in aid of

extra-judicial political redress.

270

The trial judge found that the relevant events occurred between 1869

and, at the very latest, 1890. He noted that the appellants’ claim was only

filed on April 15, 1981. With respect to the limitations arguments raised by

the Crown, the trial judge found that the appellants’ action was statute-

barred, either under the legislation in force at the time the events took place

or at the time the claim was filed, with the possible exception of their

constitutional claims. Specifically, the trial judge found as follows (at paras.

438-41, 445-48):

Limitation of actions statutes were known to the law in 1870 and

thereafter. The laws of England applicable to Manitoba in 1870

included such legislation.

Page 89

Manitoba itself passed its first limitation of actions legislation in 1931,

namely, the Limitation of Actions Act, S.M. 1931, Cap. 30. The

Limitation of Actions Act was reenacted in 1940 (S.M. 1940 (1st),

Cap. 29). Excepting for the moment the issue of constitutional validity

or challenge, both of those Acts contained similar provisions which

would have been applicable to the plaintiffs’ action. Those Acts

necessitated that actions for any equitable ground of relief had to be

commenced within six years from discovery of the cause of action.

They also provided after listing various grounds for action that any

other action not specifically provided for in the statute had to be

commenced within six years after the cause of action arose. Both Acts

also contained provision to the effect that if a person had a cause of

action which arose before or after the coming into force of the Act,

such action would not be barred until the expiry of six months after the

Act came into force.

The Limitation of Actions Act in force in Manitoba at the time this

action was commenced contained the same provisions material to this

litigation as did the Acts of 1931 and 1940 to which I earlier referred.

In this action, the plaintiffs seek declaratory relief which is a claim for

equitable relief. Excepting the issue of constitutional validity and

challenge, there is, in my view, no question that the plaintiffs’ action is

outside the limitation period statutorily mandated by the Limitation of

Actions Act.

I am satisfied on the evidence in this case that the residents at the time,

or their leaders, would have known of their rights under s. 31 and s. 32

of the Act, and would have known that which was actually transpiring

in respect of the administration and implementation of those sections,

including the federal and provincial legislation and enactments.

As they had demonstrated their willingness to litigate in respect of their

rights, one could infer from their conduct respecting ss. 31 and 32 that

they were content at least ultimately with the administration and

implementation of the Act. While I am not prepared to do so, I do infer

that they chose not to challenge or litigate in respect of s. 31 and s. 32

knowing of the sections, of what those sections were to provide them,

and of their rights to litigate.

In the circumstances as exist in this case, I conclude that the

Limitation of Actions Act applies and on that basis I would dismiss

the plaintiffs’ action.

Page 90

If I am incorrect in that conclusion, it is my view that the only aspect of

the plaintiffs’ action that would not be statute barred is their request for

a declaration pertaining to the constitutional validity of the enactments

listed in paragraphs 49, 50, 51 and 52 of their statement of claim

including the effect of such legislation upon the plaintiffs’ rights as

claimed; that is, a declaration as to whether those enactments were

ultra vires the Parliament of Canada and/or the Legislature of Manitoba

respectively.

271

272

In this way, the trial judge found the appellants’ action to be statute-

barred, with the possible exception of the declarations of constitutional

invalidity they sought.

III.7.3(a) The Appellants’ Position

The appellants argue that the trial judge erred in finding their claims

to be statute-barred. They point to the constitutional nature of their claims,

including the breach of a constitutionally mandated fiduciary duty, and take

the position that a declaration of ultra vires is always available. However,

they concede that any request for personal relief, such as damages, would be

subject to the applicable statute of limitations. They emphasize that all they

are seeking is a declaration of invalidity in aid of extra-judicial relief, which

they say is outside the purview of limitations legislation.

273

The appellants appear to take the position that their claim for breach

of fiduciary duty is governed by s. 2(1)(k) of the current Limitation of

Actions Act, C.C.S.M., c. L150 (the LAA), which imposes a six-year

limitation period for actions “grounded on accident, mistake or other

equitable ground of relief.” The six-year limitation period runs from “the

discovery of the cause of action.” They argue that s. 7.1 of the LAA, added

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in 2002, specifically negates the ultimate 30-year limitation period imposed

by s. 7(5), which therefore has no application to their claim.

274

As to the issue of discoverability, they argue that “the requisite

knowledge under s. 2(1)(k) goes beyond mere knowledge of the facts giving

rise to a claim, and extends to an appreciation that when the law is applied to

the facts, a successful claim is a reasonable possibility.” The appellants say

that the trial judge erred by looking solely to “the knowledge of individuals

of their individual causes of action and not the knowledge of the Métis as

regards their collective interest in the due and proper administration of the

Manitoba Act.” They say the evidence led at trial “established that the Métis

community could not have reasonably discovered either the decisive ‘facts’

on which their claim was to be based, or all the ‘elements’ giving rise to a

successful claim in respect of their collective rights, until, at the earliest,

approximately two years before the claim was filed.”

III.7.3(b) Canada’s Position

275

Canada submits that the trial judge’s decision on limitations was

correct. It argues that the LAA applies to all causes of action, regardless of

the type of remedy sought. It argues that limitation periods also apply to

challenges regarding constitutional validity where the legislation in question

is no longer in force. It emphasizes that the case at bar revolves around a

spent provision of the Constitution and ancillary legislation no longer in

operation. It says that “ss. 31 and 32 [of the Manitoba Act, 1870] are a

unique type of constitutional provision. Both of those sections had a one-

time delivery aspect to them, unlike the language and denominational school

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sections of the Act, or the sections setting up governmental institutions, all of

which carry an ongoing and continuous obligation.” Thus, it argues that

“[t]he limitation period therefore runs, in the case of s. 31, from the date the

impugned legislation detrimentally impacted upon the one-time delivery of

the land asset to a claimant, and the limitation period for s. 32 applies when

the impugned legislation resulted in the dismissal of a particular claimant’s

application under s. 32.”

276

In terms of the applicable legislation, Canada notes that the current s.

2(1)(k) of the LAA regarding claims for breach of fiduciary duty existed as

early as 1931, as s. 3(1)(i) of The Limitation of Actions Act, S.M. 1931, c. 30

(the “LAA 1931”). It says s. 2(1)(n), the catch-all limitation period of six

years, would apply to all other claims advanced by the appellants. Again, it

notes that a similar section existed in Manitoba as early as 1931 (s. 3(1)(l)).

In para. 30 of their amended statement of defence, they pleaded and relied

upon The Limitation of Actions Act, R.S.M. 1970, c. L150, as am., An Act

for the Limitation of Actions and Suits Relating to Real Property, 3 & 4

William 4, c. 27 (1833) and An Act for Limitation of Actions, 21 Jacobi 1, c.

16.

277

With respect to the applicable discoverability principles, Canada

points to this court’s decision in Beaudoin et al. v. Conley, 2000 MBCA 83,

150 Man.R. (2d) 34, leave to appeal denied [2000] S.C.C.A. No. 663 (QL),

where the majority opined that “the limitation will begin to toll when the

material facts on which a claim is based have been discovered or ought to

have been discovered by the plaintiffs by the exercise of reasonable

diligence” (at para. 75).

Page 93

278

In response to the appellants’ argument that the trial judge erred by

examining the appellants’ claims individually rather than collectively,

Canada submits that “since individual claims are at the root of any claim

under s. 31 or s. 32, it is correct to assess discoverability from the

individual’s perspective. There is no principled reason why a collective

should be in any better position.” Moreover, in response to the appellants’

argument that they only recently discovered their cause of action due to the

historical research that has been conducted, Canada argues that “if the claim

had been brought in a timely way, when live witnesses were available, there

would have been no need to rely on historical research.”

III.7.3(c) Manitoba’s Position

279

Manitoba joins Canada in supporting the trial judge’s finding that the

appellants’ claims are statute-barred. Like Canada, it emphasizes that all of

the impugned statutes have been repealed since 1970. With respect to the

potential remedy, Manitoba notes that “[t]he outcome of a constitutional

challenge to legislation is that the provision is declared unconstitutional and

of no force or effect. The outcome of a paramountcy argument is that the

statute is declared inoperative. These outcomes have already been obtained.

The statutes are of no force or effect and inoperative because they have been

repealed. Thus, this court is being asked to engage in an exercise with no

legal consequences.”

280

With respect to the governing legislation, Manitoba observes that this

province first enacted limitations legislation regarding land transactions in

1883, which came into effect in 1885. The Real Property Limitation Act,

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S.M. 1883, c. 26 (the RPLA 1883), established a 10-year limitation period

for the recovery of land that ran from the date of dispossession. As such,

Manitoba argues that “any individual who had sold a section 31 interest

would have had 10 years from the date of sale, or from turning twenty-one,

to argue that the contract transferring title ought to be voided on the basis

that the legislation authorizing the contract was unconstitutional.” It is

Manitoba’s position that “[a]ll of the section 31 recipients would have turned

twenty-one by 1891, the bulk of the patents were issued by 1881 and the last

patent was issued in 1901. Therefore, by early in the twentieth century at

the latest, and decades before the Statement of Claim was issued in 1981, all

of the personal actions for the recovery of land by the section 31 grantees,

who would have sold pursuant to the Manitoba statutes, would have been

statute barred.” In para. 35 of its amended statement of defence, Manitoba

pleaded and relied upon “The Limitation of Actions Act, R.S.M. 1987, c.

L150 and the predecessors thereto.”

281

In sum, “Manitoba submits that limitation statutes ought to apply to

constitutional challenges dealing with repealed and spent legislation. The

theory behind limitation statutes is equally applicable to potential

declarations of unconstitutionality as it is to stale private law cases. Since

this case is long statute-barred, Manitoba submits it ought to be dismissed on

that basis.”

III.7.3(d) Standard of Review

282

It is trite to say that all questions of law pertaining to the limitation

periods applicable to the case at bar are governed by a standard of review of

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correctness: Stuffco v. Stuffco et al., 2006 ABCA 317, 397 A.R. 111 at para.

10. However, deference must be shown to the factual findings made by the

trial judge, such as those relating to the discoverability of the appellants’

causes of action: Peterson et al. v. Highwood Distillers Ltd. et al., 2005

ABCA 248, 47 Alta.L.R. (4^th) 225 at para. 17.

III.7.3(e) Conclusion Re Limitations

283

284

The threshold issue to be addressed on this point is, which limitations

statute governs the case at bar. This preliminary question is necessarily

related to the issue of whether limitations statutes apply to claims alleging

constitutional invalidity.

As noted above, the appellants allege that the current limitations

statute in force in Manitoba (the LAA) applies to their claim for breach of

fiduciary duty. Canada observes that the current limitation period for breach

of fiduciary duty claims was originally enacted in 1931; thus, it makes no

difference whether the provisions of the LAA or the LAA 1931 are applied.

Manitoba argues that the RPLA 1883 operates as a statutory bar to the

appellants’ claims.

285

By virtue of s. 32 of the current Crown Liability and Proceedings Act,

R.S.C. 1985, c. C-50, provincial limitation periods generally apply to

litigation involving the federal Crown. A provision of this nature has been

in force since 1887 (see An Act to amend “The Supreme and Exchequer

Courts Act,” and to make better provision for the Trial of Claims against the

Crown, S.C. 1887, c. 16 (50-51 Vict.), s. 18). As such, the provincial

limitations statute that governs this matter will also apply to the appellants’

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claims against Canada.

286

Turning first to the legislation in force in Manitoba at the time the

relevant events occurred, none of these statutes expressly addressed claims

for breaches of fiduciary duties or claims involving declarations of

constitutional invalidity. Generally speaking, at that time equitable suits

(such as for breach of fiduciary duty) were governed by the doctrine of

laches, not statutory limitation periods. Thus, as Manitoba asserts, while it

is true that all of the personal actions for the recovery of land by the s. 31

grantees, who would have sold pursuant to the Manitoba statutes, would

have been statute-barred by the early twentieth century, the appellants’

fiduciary duty and constitutional invalidity claims would not have been

similarly barred.

287

The LAA 1931 was the first statute in Manitoba to prescribe a

limitation period for “actions grounded on accident, mistake or other

equitable ground of relief.” This provision has remained in Manitoba’s

limitations legislation up to the present day and was in force at the time the

appellants’ claim was filed: The Limitation of Actions Act, R.S.M. 1970, c.

L150, s. 3(1)(i). Given the transitional provisions contained in that

legislation (see ss. 6 and 60), it would appear as though the limitation period

prescribed by the 1970 Act governs the case at bar. In all of its iterations, the

six-year limitation period ran from “the discovery of the cause of action.”

288

As previously held by this court, this provision encompasses claims

for breach of fiduciary duty: Beaudoin at para. 74, and Johnson v. Johnson,

2001 MBCA 203, 163 Man.R. (2d) 46. As well, since it includes a built-in

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discoverability principle, Part II of Manitoba’s limitations legislation (which

gives applicants a one-year window within which to apply for leave to

extend the time for commencing or continuing an action, based on

discoverability) has no application: Rarie v. Maxwell (1998), 131 Man.R.

(2d) 184 (C.A.) at para. 31.

289

Graeme Mew, The Law of Limitations, 2^nded. (Markham: LexisNexis

Butterworths, 2004) at 45, succinctly stated, “A cause of action has accrued

and, hence, a limitation period starts to run when all of the elements of a

wrong exist, such that an action can [be] brought.” However, Mew goes on

to note that this traditional focus on the accrual of the cause of action “has

recently been modified in many cases to instead reflect the time when the

plaintiff became aware of the cause of action and remedy available” (ibid.).

290

I agree with Canada’s submission that the discoverability principles

outlined by this court in Beaudoin are applicable to the case at bar. In that

case, a majority of this court concluded, “… the limitation will begin to toll

when the material facts on which a claim is based have been discovered or

ought to have been discovered by the plaintiffs by the exercise of reasonable

diligence” (at para. 75). See also Tacan et al. v. Canada, 2005 FC 385, 261

F.T.R. 161 at para. 73. Thus, if the appellants’ cause of action was complete

and discoverable more than six years before April 15, 1981, then the action

(at least with respect to the claim for breach of fiduciary duty) would be

statute-barred. The burden of proof with respect to discoverability rests with

the appellants: Gamey v. Langenburg (Town), 2010 SKCA 11, 343 Sask.R.

258 at paras. 33-38; Authorson at para. 137.

Page 98

291

In both Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4

S.C.R. 245, and Canada (Attorney General) v. Lameman, 2008 SCC 14,

[2008] 1 S.C.R. 372, the Supreme Court emphasized that the rules regarding

limitation periods, as well as the policy behind limitation periods, apply as

much to aboriginal claims as to other causes of action. As Binnie J.

observed in Wewaykum, “Evolving standards of conduct and new standards

of liability eventually make it unfair to judge actions of the past by the

standards of today” (at para. 121). This sentiment was echoed and affirmed

in Lameman at para. 13, and is equally applicable here.

292

Given the Supreme Court’s rulings in Wewaykum and Lameman, the

evolution of the law regarding the Crown-Aboriginal fiduciary relationship

should not play a role in the discoverability analysis conducted with respect

to the case at bar. Courts should not countenance plaintiffs delaying the

commencement of proceedings, beyond the applicable limitation period, on

the basis that the law might change in their favour. In any event, the fact

that the appellants’ claim was brought before the Supreme Court’s seminal

ruling in Guerin would seem to reduce the potential importance of this factor

in this case. As well, it must be understood that seeking a political

resolution of a dispute does not suspend the limitation period: Tacan at para.

79; Perrot v. Canada (Minister of Fisheries and Oceans), 2009 NLTD 172,

291 Nfld. & P.E.I.R. 249 at paras. 27 et seq.

293

The trial judge held that the appellants knew of their rights and their

entitlement to sue more than six years prior to April 15, 1981. Specifically,

the trial judge noted that action had been taken in the nineteenth century by

the community concerning asserted breaches of ss. 22 and 23 of the Act, that

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the evidence before him was incomplete, and that because of the long delay

both Canada and Manitoba had lost the opportunity to take legislative action

in response to the appellants’ assertions in these proceedings. The trial

judge’s factual finding regarding discoverability deserves deference. Since

the appellants have not demonstrated that the trial judge misapplied the law

or that he committed palpable and overriding error in arriving at this

conclusion, I affirm the trial judge’s ruling that the appellants’ claim for

breach of fiduciary duty with respect to both s. 31 and s. 32 of the Act is

statute-barred.

III.7.3(f) Equitable Fraud

294

The concept of equitable fraud is expansive and multi-faceted. In the

context of limitations and laches, the doctrine can operate to prevent the

running of time against a party whose potential cause of action is concealed

by fraud on the part of the defendant. In Manitoba, this equitable concept

has been incorporated into the governing limitations legislation. The issue

in this case is whether or not the doctrine of equitable fraud, also called

fraudulent concealment, should be used to prevent the appellants’ fiduciary

duty claim from being statute-barred.

295

It does not appear that equitable fraud was argued before the trial

judge, as his lengthy judgment does not contain any findings on this point.

He merely observed that “there is no claim of dishonesty, sharp dealing or

bad faith attributable to the defendants in the claim as advanced” (at para.

1209). He made no findings as to any allegations of fraudulent concealment.

Page 100

III.7.3(f)(i) Positions of the Parties

296

297

Equitable fraud was not addressed in the pleadings or the written

materials filed on this appeal. It was raised for the first time in oral

argument at the appeal hearing.

In their reply, the appellants simply stated that “neither the doctrines

of laches and acquiescence nor any statutory limitation periods or any

estoppel apply” and, in any event, they ought not, in the discretion of the

court, to be applied. But at the appeal hearing, they argued that the doctrine

of equitable fraud should be applied in this case to prevent any of their

claims from being barred. However, they provided no factual basis for that

assertion.

298

Canada submitted that “[t]here is ample evidence to support the

learned trial judge’s finding that there was no bad faith or fraud on the

government’s part, and none was pleaded.” However, neither Canada nor

Manitoba made specific written submissions regarding fraudulent

concealment.

III.7.3(f)(ii)

Governing Legal Principles

299

The leading Canadian cases on equitable fraud and limitation periods

are the Supreme Court of Canada’s decisions in Guerin and M.(K.) v.

M.(H.). In Guerin, Dickson J. (as he then was) wrote on behalf of the

majority of the court that (at p. 390):

It is well established that where there has been a fraudulent

concealment of the existence of a cause of action, the limitation period

will not start to run until the plaintiff discovers the fraud, or until the

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time when, with reasonable diligence, he ought to have discovered it.

The fraudulent concealment necessary to toll or suspend the operation

of the statute need not amount to deceit or common law fraud.

Equitable fraud, defined in Kitchen v. Royal Air Force Association,

[1958] 1 W.L.R. 563, as ‘conduct which, having regard to some special

relationship between the two parties concerned, is an unconscionable

thing for the one to do towards the other’, is sufficient.

300

301

This formulation of the doctrine was affirmed by La Forest J. in

M.(K.) at pp. 56-57. He stated that “the courts will not allow a limitation

period to operate as an instrument of injustice” (at p. 59).

As succinctly summarized by Lord Hailsham of St. Marylebone, ed.,

Halsbury’s Laws of England, 4^thed. (London: Butterworths, 1979), vol. 28,

“Limitation of Actions” (at paras. 919-21):

. . . . .

It is not necessary, in order to constitute fraudulent concealment of a

right of action, that there should be active concealment of the right of

action after it has arisen; the fraudulent concealment may arise from the

manner in which the act which gives rise to the right of action is

performed.

. . . . .

“Fraud” does not necessarily imply moral turpitude; it is enough if the

conduct of the defendant or his agent is so unconscionable that it would

be inequitable to allow him to rely on the limitation period.

The standard of diligence which the defrauded person needs to prove is

high, except where he is entitled to rely on the other person. … it must

be shown that there has been something to put him on inquiry in respect

of the matter itself, and that if inquiry had been made it would have led

to the discovery of the real facts. If, however, a considerable interval

of time has elapsed between the alleged fraud and its discovery, that of

itself may be a reason for inferring that the fraud might with reasonable

diligence have been discovered much earlier.

302

In Authorson, the Ontario Court of Appeal described the equitable

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fraud doctrine in the following manner (at para. 120):

The principle of “equitable fraud” is aimed at preventing a limitation

period from operating “as an instrument of injustice”: M.(K.) v. M.(H.),

[supra] at para. 66 [p. 59]. It has been described in many ways.

Essentially, it involves some form of unconscionable conduct on the

part of a wrongdoer who stands in a special relationship with another

party, where the conduct conceals the existence of a claim by that party

against the wrongdoer and is considered by equity to be sufficient to

preclude the wrongdoer from relying on a limitation period defence.

[emphasis added]

303

304

After reviewing the facts, the court concluded that there was no

conduct on the part of the Crown amounting to concealment.

The court commented on the difference between concealment and

denial as follows (at para. 139):

The Class argues that the Crown’s persistent denial of its fiduciary

obligations to the veterans over the years, together with its failure to

inform the veterans of their right to sue, constitutes equitable fraud.

We do not agree. Concealment not denial is the gravamen of equitable

fraud, and breach of the fiduciary obligation itself is not sufficient to

trigger its application.

305

With respect to the onus of proof, the court commented that “the

motion judge erred in imposing a reverse onus on the Crown, particularly

where, as here, equitable fraud had not been pleaded and the Crown had no

opportunity to meet the claim at the evidentiary level” (at para. 135). In this

way, the Ontario Court of Appeal confirmed that the onus is on the plaintiff

to prove equitable fraud on the part of the defendant, even where a fiduciary

relationship is alleged to exist between the parties.

306

In Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122, the

Alberta Court of Appeal observed that moral turpitude is not required;

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instead, a finding of equitable fraud turns on the unconscionability of a

defendant’s conduct. In V.A.H. v. Lynch et al., 2000 ABCA 97, 255 A.R.

359, the court noted that, where the parties are in a fiduciary relationship, a

mere failure to inform the plaintiff of wrongdoing may amount to equitable

fraud on the part of the defendant. As the court stated (at para. 29):

Even in cases of fraudulent concealment, the plaintiff may be required

to exercise reasonable diligence to discover the fraud and thereby

uncover the cause of action: Guerin v. Canada [supra]. What

conduct is required of a plaintiff depends on the particular facts of the

case.

307

In the case at bar, there is no factual foundation to support a finding of

equitable fraud. Furthermore, as in M.(K.) v. M.(H.) and Authorson, the

applicability of the doctrine of equitable fraud does not appear to have been

argued before the trial judge or addressed by the appellants prior to oral

argument. In the circumstances, it would be entirely inappropriate to make a

finding of equitable fraud on this appeal. For these reasons, I am of the view

that the doctrine of equitable fraud should not be employed to delay the

commencement of the limitation period with respect to the appellants’

fiduciary duty claim.

III.7.3(g) The Application of Limitation Periods to

Claims Alleging Constitutional Invalidity

308

The leading Canadian cases on the application of limitation periods to

constitutional claims are the Supreme Court’s decisions in Kingstreet

Investments Parliament v. New Brunswick (Finance), 2007 SCC 1, [2007] 1

S.C.R. 3, and Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181.

Page 104

309

310

In Kingstreet, the court applied the general six-year limitation period

to limit the recovery of unconstitutional taxes. The court held that limitation

periods apply to claims for personal remedies that flow from the striking

down of an unconstitutional statute.

The issue before the court in Ravndahl was “whether a statutory

limitation period applies to personal claims for constitutional relief, and if

so, how the limitation period affects such claims” (at para. 1). The Supreme

Court was not called upon to discuss the interaction between limitation

periods and declaratory relief under s. 52 of the Constitution. Ravndahl was

thus limited to the issue of personal relief in cases alleging

unconstitutionality.

311

The appellant in Ravndahl had been receiving a workers’

compensation pension as a surviving spouse, but lost that right when she

remarried in 1984. She brought an action in 2000 seeking declarations that

various provincial statutes were unconstitutional. She also sought an order

reinstating her pension, along with damages and interest. The trial judge

found that all her claims were statute-barred (2004 SKQB 260, 251 Sask.R.

156). The majority of the Saskatchewan Court of Appeal allowed the

appeal, reinstating the claims relating to declaratory relief, but confirming

that the claims for personal relief were statute-barred (2007 SKCA 66, 299

Sask.R. 162). Smith J.A., in dissent, would have allowed the appeal in its

entirety.

312

The Supreme Court held that the appellant’s cause of action arose on

April 17, 1985, when s. 15 of the Canadian Charter of Rights and Freedoms

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came into effect. Her claim was based on the alleged unconstitutionality of

legislation passed in 1978. The court concluded that the appellant’s claims

for personal relief were statute-barred. As a result, the appeal was

dismissed.

313

While the Supreme Court of Canada did not address limitation periods

and s. 52 declarations of invalidity in Ravndahl, that issue was canvassed by

the Saskatchewan Court of Appeal. The majority stated that, “Section 52

applications for declarations of invalidity are not generally considered to be

governed by The Limitation of Actions Act [R.S.S. 1978, c. L-15]” (at para.

10). In dissent, Smith J.A. opined that, “No authority has been cited that

would justify the application of a statutory limitation provision to a claim for

a declaration pursuant to s. 52(1) that a statute or statutory provision is

unconstitutional. Such an argument is inherently implausible” (at para. 100).

In this way, all members of the panel rejected the notion that limitation

periods could be applied to prevent a court from making a declaration that a

statute was unconstitutional.

314

This approach is consistent with the Supreme Court’s ruling in

Kingstreet, where only the extent of the recovery for money paid under the

ultra vires legislation was limited; the limitations legislation did not bar the

claim for a declaration of invalidity under s. 52. As this court has previously

held, “The courts can determine the constitutional validity of legislation no

matter how old it is”: Dumont v. Can. (A.G.), [1988] 5 W.W.R. 193 at 207.

315

As noted above, the appellants in this case are seeking a declaration of

invalidity in aid of extra-judicial relief and not personal remedies, such as

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damages. As demonstrated by the foregoing review of the jurisprudence, the

type of relief sought has a significant impact upon whether or not statutory

limitation periods will apply to particular constitutional claims. Limitation

periods apply to personal actions for constitutional remedies, but they do not

apply to applications for declarations of constitutional invalidity of a law. If

the retroactive effect of a declaration of constitutional invalidity needs to be

curtailed, then the factors enumerated by the Supreme Court of Canada in

Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429

may be engaged. As described by the majority (at para. 93):

The determination of whether to limit the retroactive effect of a s. 52(1)

remedy and grant a purely prospective remedy will be largely

determined by whether the Court is operating inside or outside the

Blackstonian paradigm. When the Court is declaring the law as it has

existed, then the Blackstonian approach is appropriate and retroactive

relief should be granted. On the other hand, when a court is developing

new law within the broad confines of the Constitution, it may be

appropriate to limit the retroactive effect of its judgment.

[emphasis added]

316

The majority noted that legal mechanisms such as “the law of

limitations” may “mitigate the consequences of declaratory rulings in certain

circumstances” (at para. 101). The majority discussed the “well-established

doctrine of qualified immunity in respect of the adoption of unconstitutional

statutes” (at para. 102). As they went on to explain, “Where legislation is

found to be invalid as a result of a judicial shift in the law, it will not

generally be appropriate to impose liability on the government” (ibid.).

Thus, damages will not generally be awarded in such situations, although

declarations of constitutional invalidity may be made.

Page 107

317

318

The Crown’s argument that the impugned constitutional legislation in

this case is no longer in force would seem to have more bearing on the issue

of mootness and will therefore be addressed in that context.

In view of the Supreme Court’s pronouncements in Kingstreet and

Ravndahl, I am of the opinion that the declarations regarding constitutional

invalidity sought by the appellants in the case at bar are not subject to any

statutory limitation periods. For this reason, I uphold the trial judge’s

alternative ruling that (at para. 448):

… the only aspect of the plaintiffs’ action that [is not] statute barred is

their request for a declaration pertaining to the constitutional validity of

the enactments listed in paragraphs 49, 50, 51 and 52 of their statement

of claim including the effect of such legislation upon the plaintiffs’

rights as claimed; that is, a declaration as to whether those enactments

were ultra vires the Parliament of Canada and/or the Legislature of

Manitoba respectively.

[emphasis added]

III.7.4 Laches

319

Having found that the appellants’ fiduciary duty claim is statute-

barred, it is unnecessary to consider whether that claim is also defeated by

the equitable doctrine of laches. However, as their constitutional claims are

not statute-barred, I must now consider whether those claims are barred by

laches.

III.7.4(a) The Trial Judge’s Findings

320

The trial judge concluded that the doctrine of laches and acquiescence

applied to all of the appellants’ claims and operated as a complete defence to

them. He found that there was “grossly unreasonable delay” (at para. 454)

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on the part of the appellants in bringing these claims. He reviewed the

reasons advanced to explain the delay and the impact of the delay. He noted

that a declaration was a form of equitable relief and that a party seeking

equitable relief must itself do equity. He found that the appellants did not

meet this requirement. The relevant portions of his reasons on the issue of

laches are the following (at paras. 454-60):

For the reasons already expressed in regard to limitations of actions, I

have no hesitation in finding that those entitled to benefits under s. 31

and s. 32 of the Act were at the material time aware of their rights

thereunder and of their right to sue if they so wished. As well, I

conclude that there was grossly unreasonable delay in the

commencement of action in respect of those rights and the breaches

thereof as now claimed.

The question remains, however, whether the delay of the plaintiffs

constitutes acquiescence or results in circumstances that make the

prosecution of the action unreasonable.

Both Canada and Manitoba assert that both branches of the doctrine of

laches and acquiescence apply to this case. As to the former, there was

no evidence introduced to explain the delay. The only explanations

offered came from counsel and were essentially as follows:

(1)

(2)

(3)

There was animosity in the community towards the Métis which

might have deterred their willingness to do anything.

Had the plaintiffs sought legal advice at the time, they would

probably have been told that they had no case.

There was objection expressed from time to time by community

leaders and, in particular, by certain members of the Manitoba

Legislature as to the delays in implementation of the Act and as

to concerns about the vulnerability of the children who were to

receive land under s. 31.

None of these are a justifiable explanation at law for those entitled

under s. 31 and s. 32, whether individually or collectively, to have sat

on their rights as they did until 1981. Nor, in my view, does this delay

in the exercise of their rights square with the evidence as to the conduct

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of individuals and the larger community in respect of the steps taken

when it was thought that there had been a breach of s. 22 and/or of s. 23

of the Act. In my view in law, this amounts to acquiescence.

In addition, the delay results in circumstances that make the

prosecution of this action unreasonable. Both defendants assert a

number of reasons why the prosecution of this case at this date is

unreasonable. Some of those reasons are as follows:

(1)

There is incompleteness in the evidence. …

…..

As well, while it is clear from the facts that the selection,

allotment and ultimate grant of patents to the land in question,

particularly under s. 31, was not done in a timely fashion, it is

difficult for one to put that into context given that I am forced to

look at that which occurred between 1870 and 1890 largely

through 2007 glasses.

(2)

(3)

When one is considering the constitutionality of legislation, a

pith and substance analysis is required in order to understand the

purpose and effect of the legislation. Understanding the social

context and the culture at the material time is critical to being

able to properly undertake this task. Here, there are doubtless

different societal attitudes and values than was the case over 125

years ago, including changes in the common law.

The legislation and regulations under attack were passed

between 1871 and 1890 re Canada and between 1877 and 1885

re Manitoba. The outcome of a successful challenge to

legislation is that the offending legislation is declared

unconstitutional and of no force and effect. The outcome of a

successful challenge under the doctrine of paramountcy is that

the offending legislation is declared inoperable.

Such challenges were available to the forebears of the plaintiffs

at the time.

Had there been a successful attack on either basis at the time, the

remedy would have been much more easily determined and

applied.

Often where legislation is struck down as

unconstitutional, it is replaced by other legislation which passes

constitutional muster. Both Canada and Manitoba were deprived

of that opportunity. And, in the meantime, hundreds of

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transactions have been conducted in accordance with those

enactments.

(4)

In the present action, the plaintiffs seek declaratory relief to

assist them in advancing a land claim in the hope that they will

be able to successfully negotiate a land claim agreement. At the

material time, the available land was owned by Canada. In

1930, Canada transferred control over ungranted lands to

Manitoba and thus lost, to a significant extent at least, an asset

which it could have used to settle the claim if a timely and

successful attack had been advanced. As the ungranted lands in

the province are now owned by Manitoba, it, too, suffers similar

prejudice in that had the claim been made successfully in a

timely fashion, the remedy would likely have been either to not

replace legislation struck down or to replace it with

constitutionally valid legislation. Now, however, a settlement

will presumably result in payment of monies or land.

Declaratory relief is equitable relief. That is what the plaintiffs seek in

this case. As a general rule, one who seeks equity must do so promptly.

That certainly cannot be said to be the case here.

For that reason and the reasons given as to why in my view the

prosecution of this case at this date is unreasonable, I conclude that the

doctrine of laches and acquiescence is here applicable and amounts to a

successful defence to the plaintiffs’ claim.

321

In the context of this analysis, it does not appear that the trial judge

differentiated between the appellants’ claim for breach of fiduciary duty and

their Constitution-related claims. He found that the doctrine of laches and

acquiescence applied and acted as a defence to all of the appellants’ claims.

III.7.4(b) The Appellants’ Position

322

The appellants submit that the trial judge erred in finding that the

doctrine of laches applied to this action and acted as a successful defence to

it. They stress that delay alone is insufficient to trigger the doctrine of

laches. They dispute the trial judge’s finding of acquiescence, arguing that

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the Métis as a collective did not acquiesce in the flawed administration of ss.

31 and 32 of the Act. Furthermore, the “social climate” of the 1870s was not

one that favoured bringing a suit. They assert that no one had the authority

to acquiesce on behalf of the Métis children or waive their rights. They also

argue that, before the founding of the MMF, there was no individual or

organization capable of bringing this action. They submit that the MMF

only completed its review of the historical record in 1978, commencing this

action in 1981. It is their position that this three-year delay was not so

lengthy as to constitute laches or acquiescence.

III.7.4(c) Canada’s Position

323

Canada relies on the equitable defences of laches, acquiescence and

estoppel. It submits that “whatever branch of laches is employed in this

case, i.e. either acquiescence, or delay coupled with a detrimental effect on

the Defendant, equity bars a remedy for the Plaintiffs.” As to the impact of

the delay, Canada says prosecution of this case at this late date is

unreasonable because (at para. 70 of its factum):

a)

b)

There is evidentiary incompleteness.

There are different societal attitudes and values, or changing

community standards, than existed 100 years ago, including changes in

the common law.

c)

The delay in making complaint, if substantiated, has deprived

the government of the opportunity to fix the matter at a time when a fix

was more practicable. A legislative solution could have been utilized at

the time. Moreover, in 1930, Canada transferred control over ungranted

lands to Manitoba and thus lost the most suitable asset with which it

could satisfy a potential land claim.

d)

In assessing its ongoing financial affairs, the government ought

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not to be burdened by the prospect of historical complaints that it felt

were settled at an earlier time.

e)

The conduct of ancestors of the Plaintiffs amounts to

acquiescence upon which Canada could rely.

324

Canada also disputes the appellants’ contention that prior to the

formation of the MMF there were no individuals or organizations capable of

bringing this action, as cases were brought by individual Métis in the 1880s

and 1890s regarding issues of importance to their community.

III.7.4(d) Manitoba’s Position

325

Manitoba submits that both branches of the doctrine of laches, as

identified by the Supreme Court of Canada in M.(K.) v. M.(H.) and

Wewaykum, are applicable in this case. Manitoba notes that the impugned

statutes were enacted between 1877 and 1885 and that “hundreds of

transactions were conducted in accordance with these statutes. If there was

any thought that the statutes were unconstitutional, they could have been

challenged at that time. … But no legal challenge was ever taken or petition

ever sent. While it is true that no one can consent to an unconstitutional

statute, the fact that not one person out of 6,034 chose to challenge the laws

suggests that there was strong support for them, or at least acquiescence to

their operation.” Manitoba submits that “the total lack of any attempt to

alter Manitoba law, by legal action or otherwise, is clear evidence of

acquiescence to the validity of those laws by the individuals whose contracts

were governed by those laws.”

326

Furthermore, Manitoba argues that it has been severely prejudiced by

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the appellants’ delay in commencing this action. Manitoba says this

prejudice has manifested in three ways. First, it argues that “having the

judicial branch rule on a constitutional issue at a point in time where the

executive and legislative branches are impotent to address it, does not serve

the constitutional order. … Denying Manitoba the benefit of the

constitutional dialogue is an unfairness that cannot now be cured.” Second,

it alleges prejudice in the form of the court’s inability to understand the

legal, political and social culture that existed at the relevant time; “the

absence of living witnesses to provide insight into the purpose and effect of

the impugned legislation, the absence of a complete record of legislative

debates, and the absence of total understanding of the legal environment, all

impact on the ability of Manitoba to defend its legislation. Ultimately,

Manitoba submits that it is unfair to assess the constitutionality of nineteenth

century statutes through a twenty-first century lens.” See Wewaykum at

para. 121. Third, Manitoba points to the arrangement it made with the

federal government in 1930 when the province assumed administration and

control of Crown lands in Manitoba under the Natural Resources Transfer

Agreement. Thus, “if any Crown land is to transfer, it will have to come

from Manitoba. Fairness dictates that Manitoba should have been alerted to

this possibility at the time it entered into the Natural Resources Transfer

Agreement and not fifty years subsequent.”

327

Moreover, Manitoba emphasizes the discretionary and equitable

nature of the doctrine of laches, submitting that the trial judge’s decision

should only be overturned on this point if he committed a palpable and

overriding error.

Page 114

III.7.4(e) Standard of Review

328

The doctrine of laches is undoubtedly an equitable construct and its

application is discretionary in nature. As such, the deferential standard of

review discussed above in connection with declaratory relief is also

applicable to the doctrine of laches. However, it should be noted that if the

judge erred in applying the legal standard that a party must meet in order to

succeed, that is a legal issue reviewable on the correctness standard: Penner

at para. 16.

III.7.4(f) An Overview of the Doctrine of Laches

329

The doctrine of laches is entirely a creature of equity. It is an

equitable doctrine somewhat akin to the limitation periods enacted by

statute. It can be relied upon where equitable relief is sought but no

statutory limitation periods (yet) apply. As explained by John McGhee,

Q.C., ed., Snell’s Equity, 31^sted. (London: Thomson Reuters (Legal)

Limited, 2005) (at p. 99):

In the words of Lord Camden L.C., a court of equity “has always

refused its aid to stale demands, where a party has slept upon his right

and acquiesced for a great length of time. Nothing can call forth this

court into activity, but conscience, good faith, and reasonable diligence;

where these are wanting, the Court is passive, and does nothing.”

Delay which is sufficient to prevent a party from obtaining an equitable

remedy is technically called “laches.”

330

The authors observe that “[l]aches essentially consists of a substantial

lapse of time coupled with the existence of circumstances which make it

inequitable to enforce the claim” (at p. 101). As Mew explains in The Law

Page 115

of Limitations (at p. 38):

As a general principle, a plaintiff seeking to enforce an equitable

remedy must come to the court quickly if the remedy is not to be lost.

Laches is delay that is inconsistent with good faith on the part of a

party claiming equitable relief. However, temporal considerations

alone will not necessarily determine the matter. Closely allied to

laches, which is the inordinate delay itself, is acquiescence, which is

the assent to an infringement of rights, either express or implied, by

which the right to equitable relief may also be lost. Prejudice or the

“balance of justice or injustice” may also be a factor.

331

The leading Canadian case on the doctrine of laches is the decision of

the Supreme Court of Canada in M.(K.) v. M.(H.). La Forest J. wrote on

behalf of himself and three other members of the court. However, his

reasons with respect to the doctrine of laches were adopted by all members

of the court, making the decision unanimous on this point. Therein, the

Supreme Court adopted (at pp. 76-77) the statement of the doctrine set forth

in Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 at 239-40, which

emphasized the role of the length of the delay and the nature of the acts done

during the interval. It also adopted (at p. 77) the statement by Lord

Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas.

1218 (U.K.H.L.) at 1279-80 that the application of the doctrine of laches

depends on “whether the balance of justice or injustice is in favour of

granting the remedy or withholding it.” The Supreme Court quoted with

approval from R. P. Meagher, W. M. C. Gummow & J. R. F. Lehane,

Equity, Doctrines and Remedies, 2^nded. (Sydney: Butterworths, 1984) at

755, and summarized the law as follows (at pp. 77-78):

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It is a defence which requires that a defendant can successfully resist an

equitable (although not a legal) claim made against him if he can

demonstrate that the plaintiff, by delaying the institution or prosecution

of his case, has either (a) acquiesced in the defendant’s conduct or (b)

caused the defendant to alter his position in reasonable reliance on the

plaintiff’s acceptance of the status quo, or otherwise permitted a

situation to arise which it would be unjust to disturb….

Thus there are two distinct branches to the laches doctrine, and either

will suffice as a defence to a claim in equity. What is immediately

obvious from all of the authorities is that mere delay is insufficient to

trigger laches under either of its two branches. Rather, the doctrine

considers whether the delay of the plaintiff constitutes acquiescence or

results in circumstances that make the prosecution of the action

unreasonable. Ultimately, laches must be resolved as a matter of

justice as between the parties, as is the case with any equitable doctrine.

332

333

This formulation of the doctrine was approved by the court in the

more recent decision of Wewaykum.

With respect to the first branch of the laches doctrine, the Supreme

Court commented on the nature of acquiescence in M.(K.) v. M.(H.) (at pp.

78-79):

Acquiesence [sic] is a fluid term, susceptible to various meanings

depending upon the context in which it is used. Meagher, Gummow

and Lehane, supra, at pp. 765-66, identify three different senses, the

first being a synonym for estoppel, wherein the plaintiff stands by and

watches the deprivation of her rights and yet does nothing. This has

been referred to as the primary meaning of acquiescence. Its secondary

sense is as an element of laches – after the deprivation of her rights and

in the full knowledge of their existence, the plaintiff delays. This leads

to an inference that her rights have been waived. This, of course, is the

meaning of acquiescence relevant to this appeal. The final usage is a

confusing one, as it is sometimes associated with the second branch of

the laches rule in the context of an alteration of the defendant’s position

in reliance on the plaintiff’s inaction.

Page 117

As the primary and secondary definitions of acquiescence suggest, an

important aspect of the concept is the plaintiff’s knowledge of her

rights. It is not enough that the plaintiff knows of the facts that support

a claim in equity; she must also know that the facts give rise to that

claim: Re Howlett, [1949] Ch. 767. However, this Court has held that

knowledge of one’s claim is to be measured by an objective standard;

see Taylor v. Wallbridge (1879), 2 S.C.R. 616, at p. 670. In other

words, the question is whether it is reasonable for a plaintiff to be

ignorant of her legal rights given her knowledge of the underlying facts

relevant to a possible legal claim.

334

The court compared the operation of the doctrine of laches with the

discoverability principle that has developed at common law with respect to

statutory limitation periods, stating (at pp. 79-80):

As is now apparent, the considerations outlined in detail under the

common law discoverability doctrine must also be considered under the

rubric of acquiesence [sic]. However, I would not wish to be taken as

suggesting that an inquiry under the common law will reach the same

result as in equity in every case. Rather, there is an important

distinction between the two that has not yet been considered. As I have

stated, both doctrines share the common requirement of knowledge on

the part of the plaintiff. However, a consequence of that knowledge is

that the reasonable discoverability inquiry is at an end, and the statutory

limitations period begins to run. In equity, however, there is a residual

inquiry: in light of the plaintiff’s knowledge, can it reasonably be

inferred that the plaintiff has acquiesced in the defendant’s conduct? …

335

This court had the opportunity to address the doctrine of laches in the

case of Rivergate Properties Inc. v. West St. Paul (Rural Municipality), 2006

MBCA 76, 205 Man.R. (2d) 230. After reviewing the Supreme Court’s

decision in M.(K.) v. M.(H.), Hamilton J.A., for the court, wrote (at para.

53):

Thus, the Supreme Court has made it clear that the defence of laches

entails the notion of delay combined with either (a) evidence of conduct

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revealing that the plaintiff acquiesced in the alleged wrongful act in a

way that leads reasonably to the inference that the plaintiff waived its

right to a remedy, or (b) evidence that, in reliance on the status quo, the

defendant altered its position in a way that constitutes prejudice, or

evidence that through its delay, the plaintiff permitted circumstances to

arise that it would be unjust to disturb. Therefore, delay will not afford

an effective defence until the defendant is able to establish prejudice or

other evidence of potential injustice.

336

As noted above, Canada and Manitoba argue that both of these

branches of the doctrine of laches are applicable to the case at bar and

operate to bar the appellants’ claims.

III.7.4(g) The Application of Laches to Claims Seeking Declaratory Relief

337

As stated by the Supreme Court in Wewaykum, the “[e]nforcement of

equitable duties by equitable remedies is subject to the usual equitable

defences, including laches and acquiescence” (at para. 86). As the court

went on to explain (at paras. 107-8):

One of the features of equitable remedies is that they not only operate

“on the conscience” of the wrongdoer, but require equitable conduct on

the part of the claimant. They are not available as of right. Equitable

remedies are always subject to the discretion of the court: [citations

omitted].

Equity has developed a number of defences that are available to a

defendant facing an equitable claim such as a claim for breach of

fiduciary duty. One of them, the doctrine of laches and acquiescence,

is particularly applicable here. This equitable doctrine applies even if a

claim is not barred by statute. …

338

Thus, a preliminary question to be addressed in the circumstances of

this case is whether or not a declaration is an equitable remedy subject to the

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doctrine of laches.

339

As Sarna notes, “There has been some disagreement as to whether the

declaratory judgment is an equitable or common law remedy, or sui generis”

(at p. 17). As the declaratory judgment originated in courts of equity, on this

basis it might be said to be an equitable remedy. In Sarna’s opinion (at p.

18):

Although declaratory recourse has been categorized as merely

procedural rather than substantive, the remedy is undeniably equitable

in origin, and is therefore subject to the consequences of its equitable

origins.

The remedy is at the discretion of the court; and attracts equitable

defences including laches and acquiescence.

340

The Supreme Court of Canada addressed the issue of the proper

characterization of declaratory relief in the case of Hongkong Bank. In that

case, Sopinka J., writing for the court, held that “even if the remedy is seen

to be sui generis, equitable principles such as clean hands can play a role in

the exercise of the court’s discretion whether or not to grant the remedy” (at

p. 191). He concluded that (at p. 192):

While it may be that certain equitable restrictions such as the

requirement that legal remedies be insufficient and that there be a

probability of irreparable or at least very serious damage should not be

applied to declaratory remedies, I would conclude that in the exercise

of the discretion whether or not to grant a declaration, the court may

take into account certain equitable principles such as the conduct of the

party seeking the relief. …

341

The Supreme Court’s ruling in Hongkong Bank has been applied by

this court in Dumont v. Manitoba Métis Federation Inc. et al., 2004 MBCA

Page 120

149, 190 Man.R. (2d) 113 at para. 50.

342

Thus, the doctrine of laches, which is based on the conduct of the

party seeking relief, may be applied to claims seeking declaratory relief

whether declaratory judgments are viewed as equitable in nature or sui

generis.

III.7.4(h) The Application of Laches to Constitutional Claims

343

344

As the doctrine of laches may be applied to claims seeking declaratory

relief, the next question to be addressed in the context of this case is whether

or not the doctrine of laches can operate to bar constitutional claims.

While the availability of laches in respect of Charter claims may be

uncertain, the Supreme Court has clearly stated that the doctrine does not

apply to cases involving the constitutional division of powers. In the early

case of In re McEwen, [1941] S.C.R. 542, the majority of the court

questioned whether “an objection based on delay, laches, or estoppel, could

be held to deprive the courts of the power to inquire into” (at p. 558) matters

involving the constitutional jurisdiction of the Parliament of Canada. In

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576, the court

stated that it was the duty of the courts to ensure that the legislative branch

did not “transgress the limits of their constitutional mandate” (at p. 590):

A state, it is said, is sovereign and it is not for the Courts to pass upon

the policy or wisdom of legislative will. As a broad statement of

principle that is undoubtedly correct, but the general principle must

yield to the requisites of the constitution in a federal state. By it the

bounds of sovereignty are defined and supremacy circumscribed. The

Courts will not question the wisdom of enactments which, by the terms

of the Canadian Constitution are within the competence of the

Page 121

Legislatures, but it is the high duty of this Court to insure that the

Legislatures do not transgress the limits of their constitutional mandate

and engage in the illegal exercise of power. …

345

The Supreme Court of Canada definitively addressed the issue of the

application of laches to division of powers claims in the case of Ontario

Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327. In his

concurring reasons, Lamer C.J.C. opined that, “[t]here is no doctrine of

laches in constitutional division of powers doctrine; one level of

government’s failure to exercise its jurisdiction, or failure to intervene when

another level of government exercises that jurisdiction, cannot be

determinative of the constitutional analysis” (at p. 357). The majority made

a similar comment at p. 347.

346

This statement of the law was recently applied by the Alberta Court of

Appeal in the case of Taylor et al. v. Registrar of South Alberta Land

Registration District et al., 2005 ABCA 200, 367 A.R. 73. As explained by

the majority of the court, “[i]n the present case we are concerned with

application of the doctrine of laches in the context of a case where the

court’s decision and the appropriate relief are dependant on the

constitutional division of powers” (at para. 65). The majority went on to

adopt Lamer C.J.C.’s opinion in Ontario Hydro, confirming that “the

doctrine of laches does not apply in a constitutional division of powers case”

(ibid.).

347

Thus, I am of the view that the doctrine of laches does not apply to

claims involving the constitutional division of powers. As the appellants’

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constitutional claims against Manitoba all pertain to the division of powers,

the doctrine of laches cannot be applied to bar those claims. Consequently,

to the extent that the trial judge found their division of powers claims to be

barred by the doctrine of laches, he erred in law.

348

However, I am inclined to the view that the rule prohibiting the

application of laches to division of powers cases does not extend to the type

of constitutional claims the appellants advance against Canada. In essence,

the appellants argue that Canada misinterpreted its constitutional obligations

and its executive action failed to comply with the appellants’ interpretation

of ss. 31 and 32 of the Act. The appellants have not pursued the argument

that Canada committed any ultra vires acts, besides the two Canada

conceded (as described in para. 352). Instead, they primarily seek a

declaratory ruling regarding the interpretation of certain constitutional

provisions. The case law surrounding division of powers and Charter

claims is not likely applicable to this unique scenario, which involves a

much greater focus on the facts and events in the distant past than on the

language of any legislative provisions.

349

While it may well be that the considerations animating the rule

prohibiting the application of laches to constitutional division of powers

cases would not apply to cases involving constitutional interpretation, given

my findings with respect to mootness it is unnecessary to address this issue

further in this case.

III.7.5 Mootness

350

As the constitutional issue raised by the appellants does not appear to

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be subject to any statutory limitation periods or barred by the doctrine of

laches, I must determine whether or not it is moot.

III.7.5(a) The Trial Judge’s Findings

351

From the reasons of the trial judge, it does not appear that the doctrine

of mootness figured prominently in the arguments of the parties at trial.

While the trial judge identified several mootness arguments advanced by

Canada, he does not appear to have placed any reliance on them in reaching

the conclusions that he did.

352

It should be noted that Canada did concede that two of its enactments

were ultra vires. As described by the trial judge (at paras. 854-55):

But for two enactments, Canada asserts that the purpose and effect of

each of the challenged enactments was to implement rather than alter

ss. 31 and 32. The two enactments in question are:

(1)

Order in Council April 25, 1871

Canada acknowledges that this Order in Council was ultra vires the Act

but only to the extent that it allowed heads of family to participate in

the grant of the 1,400,000 acres.

That error was corrected by Order in Council April 3, 1873, and for

greater certainty, by S.C. 1873, c. 38 (An Act to remove doubts as to

the construction of s. 31 of the Act 33 Victoria, chapter 3, and to

amend s. 108 of the Dominion Lands Act). This latter statute was

deemed necessary because the Dominion Lands Act, S.C. 1872, c. 23

had, by s. 108, confirmed “all proceedings properly taken under Order

in Council dated April 25, 1871”.

(2)

S.C. 1874, c. 20 (An Act respecting the appropriation of

certain Dominion Lands in Manitoba)

Canada agrees this statute was ultra vires the Act but only to the extent

that it required claimants under subs. 32(4) to show they were in

possession of their lands by March 8, 1869 instead of July 15, 1870.

That error was corrected by S.C. 1875, c. 52 (An Act to amend “An

Act respecting the appropriation of certain Lands in Manitoba”),

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which reinstated July 15, 1870 as the operative date. The plaintiffs do

not impugn this statute insofar as it changed the date for claims under

subs. 32(3) to July 15, 1870 from March 8, 1869.

While acknowledging that both of these enactments were ultra vires the

Act, Canada asserts that both inconsistencies were subsequently

remedied, as indicated, and that declaratory relief as sought by the

plaintiffs is therefore inappropriate on the ground of mootness.

353

As these two errors were remedied within a very short period of time,

I am of the view that these admittedly ultra vires enactments are neither

deserving of special consideration nor do they trigger a different analysis or

outcome. As such, there is no need to differentiate them from the other

constitutional claims advanced by the appellants.

III.7.5(b) Positions of the Parties

354

On appeal, Manitoba was the only party to pursue the mootness issue

in the written materials filed with the court. It argued that, “all this

legislation has been repealed [in 1969] and it has no continuing effect on any

person or transaction,” and therefore “a determination of the

constitutionality of its repealed and spent statutes is academic” and that “this

is not a case where this court should exercise its discretion to hear the

appeal.” As expressed in its factum (at para. 195):

Manitoba submits that in the case at bar, there are no legal reasons to

rule on the constitutionality of legislation that has been repealed for

decades. The role of the courts is to adjudicate real disputes. The

courts should not be co-opted to fulfil a political agenda.

Page 125

III.7.5(c) Governing Legal Principles

355

As a general rule, courts will not decide moot cases. As Sharpe in

Charter Litigation at 327ff “Mootness, Abstract Questions and Alternative

Grounds: Deciding Whether to Decide” said (at pp. 329, 332):

The value or principle perhaps most frequently offered to justify not

deciding such cases is the institutional role of courts and the need to

legitimize judicial review. The role of the courts is to decide actual

disputes. Judicial pronouncements upon the constitutional validity of

laws or practices may be seen as merely incidental to the task of

deciding concrete cases. Courts are not entitled to pronounce upon

constitutional issues at large or at will. From this perspective, judge-

made-law (particularly when overruling the legislature) is only

legitimate when it is the product of the adjudication of an actual

dispute. If the dispute has become moot and has evaporated or if it is

not yet ripe for decision, there is no need for adjudication, and hence no

justification for a judicial pronouncement. …

… While our constitution does not explicitly limit the courts to actual

cases or controversies, an important element of our judicial tradition

and legal culture does, and judges become instinctively uneasy when

asked to decide a case solely to satisfy the desire of a party to have a

legal issue clarified or resolved.

356

357

However, courts may exercise their discretion to decide moot cases in

certain circumstances.

The leading authority on the mootness doctrine in Canada is the

Supreme Court’s decision in Borowski v. Canada (Attorney General), [1989]

1 S.C.R. 342. Writing for the court, Sopinka J. explained the underpinnings

of the mootness doctrine as follows (at p. 353):

The doctrine of mootness is an aspect of a general policy or practice

that a court may decline to decide a case which raises merely a

hypothetical or abstract question. The general principle applies when

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the decision of the court will not have the effect of resolving some

controversy which affects or may affect the rights of the parties. If the

decision of the court will have no practical effect on such rights, the

court will decline to decide the case. … The general policy or practice

is enforced in moot cases unless the court exercises its discretion to

depart from its policy or practice. …

358

As to the proper application of the doctrine, Sopinka J. went on to say

(ibid.):

The approach in recent cases involves a two-step analysis. First it is

necessary to determine whether the required tangible and concrete

dispute has disappeared and the issues have become academic. Second,

if the response to the first question is affirmative, it is necessary to

decide if the court should exercise its discretion to hear the case. … I

consider that a case is moot if it fails to meet the “live controversy”

test. A court may nonetheless elect to address a moot issue if the

circumstances warrant.

359

Finding that the appeal before him was moot, Sopinka J. went on to

consider whether the court should exercise its discretion to decide the case in

any event. In terms of the factors to be considered at this second stage,

Sopinka J. was cautious about formulating a rigid framework or set of

criteria. As he explained (at p. 358):

Since the discretion which is exercised relates to the enforcement of a

policy or practice of the Court, it is not surprising that a neat set of

criteria does not emerge from an examination of the cases. … I would

add that more than a cogent generalization is probably undesirable

because an exhaustive list would unduly fetter the court’s discretion in

future cases. It is, however, a discretion to be judicially exercised with

due regard for established principles.

360

In general, as the Ontario Court of Appeal held in Payne v. Wilson et

al. (2002), 162 O.A.C. 48, “a court may exercise its discretion in favour of

Page 127

hearing a moot appeal where the purposes underlying the general rule are

outweighed by the interests served by a determination of the merits of the

appeal” (at para. 18).

361

The first rationale Sopinka J. identified in Borowski as animating the

mootness doctrine is the requirement of an adversarial context. The second

rationale he identified was based on a concern for judicial economy. As he

explained, “The concern for judicial economy as a factor in the decision not

to hear moot cases will be answered if the special circumstances of the case

make it worthwhile to apply scarce judicial resources to resolve it” (at p.

360). However, he noted that an expenditure of judicial resources was

justified in cases of a recurring nature but brief duration; that is, cases

evasive of review. He observed that, “There also exists a rather ill-defined

basis for justifying the deployment of judicial resources in cases which raise

an issue of public importance of which a resolution is in the public interest.

The economics of judicial involvement are weighed against the social cost of

continued uncertainty in the law” (at p. 361). The third rationale identified

by Sopinka J. as underlying the mootness doctrine was “the need for the

Court to demonstrate a measure of awareness of its proper law-making

function” (at p. 362). As he explained (at pp. 362-63):

… The Court must be sensitive to its role as the adjudicative branch in

our political framework. Pronouncing judgments in the absence of a

dispute affecting the rights of the parties may be viewed as intruding

into the role of the legislative branch. …

. . . . .

… In considering the exercise of its discretion to hear a moot case, the

Court should be sensitive to the extent that it may be departing from its

traditional role.

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362

With respect to the interaction between these three rationales, Sopinka

J. stated (at p. 363):

In exercising its discretion in an appeal which is moot, the Court should

consider the extent to which each of the three basic rationalia for

enforcement of the mootness doctrine is present. This is not to suggest

that it is a mechanical process. The principles identified above may not

all support the same conclusion. The presence of one or two of the

factors may be overborne by the absence of the third, and vice versa.

363

While the necessary adversarial context continued to exist in the case

before him, Sopinka J. concluded that the court should not exercise its

discretion to decide the case on its merits, placing particular reliance on the

third factor outlined above. As he stated, “What the appellant seeks is to

turn this appeal into a private reference” (at p. 365). As a result, the appeal

was dismissed on the grounds that it was moot and that Mr. Borowski lacked

standing to continue it.

364

The Supreme Court of Canada has also made it clear that unnecessary

constitutional pronouncements should be avoided: Tremblay v. Daigle,

[1989] 2 S.C.R. 530 at 571. Similarly, in Phillips v. Nova Scotia

(Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97,

Sopinka J., for the majority, stated that (at para. 6):

This Court has said on numerous occasions that it should not decide

issues of law that are not necessary to a resolution of an appeal. This is

particularly true with respect to constitutional issues and the principle

applies with even greater emphasis in circumstances in which the

foundation upon which the proceedings were launched has ceased to

exist.

Page 129

365

As this court held in Woods v. Canada (Attorney General) et al., 2005

MBCA 24, 192 Man.R. (2d) 117, “When the issue between the parties is

moot, the onus rests on the party seeking a determination on the merits to

demonstrate why the court should depart from its usual practice of refusing

to hear moot appeals” (at para. 23). See also Payne at para. 18.

366

On several occasions, this court has declined to exercise its discretion

to decide moot appeals where the mootness resulted from the repeal of the

impugned legislation. See, for example, Kennett Estate v. Manitoba

(Attorney General) (1998), 129 Man. R. (2d) 244, and Pestrak v. Denoon,

2000 MBCA 79, 148 Man.R. (2d) 153. Other courts have also declined to

decide moot appeals on such grounds. See, for example, Human Rights

Commission (Sask.) et al. v. Saskatoon Public Library Board et al., 2008

SKQB 312, 325 Sask.R. 224; C.P.L., Re (1993), 112 Nfld. & P.E.I.R. 148

(Nfld.S.C.App.Div.); Payne; McKenzie v. British Columbia (Minister of

Public Safety and Solicitor General) et al., 2007 BCCA 507, 247 B.C.A.C.

221.

367

As explained in Mahmud Jamal & Matthew Taylor, The Charter of

Rights in Litigation, looseleaf (Aurora: The Cartwright Group Ltd., 2009) (at

para. 4:09[2]):

It is unnecessary and undesirable to decide the appeal on a basis that

has disappeared. The Court should not decide issues that are not

necessary to the resolution of an appeal. This is particularly true where

constitutional issues are involved, especially where the foundation upon

which the proceedings were launched has ceased to exist. Unnecessary

constitutional pronouncements may prejudice future cases, the

implications of which have not been foreseen. Even though an appeal

may be fully argued, that reason alone is not sufficient to warrant

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deciding difficult Charter issues and laying down guidelines … simply

because to do so might be “helpful.”

III.7.5(d) Conclusion Re Mootness

368

Applying the foregoing principles to the case at bar, I have concluded

that the case is moot and that this court should not exercise its discretion to

decide the moot constitutional issues raised by the appellants. In my

opinion, the appellants are essentially seeking a private reference regarding

the constitutionality of certain spent, repealed provisions.

369

There appears to be little doubt that the constitutional issues raised in

this case are moot, given that the impugned legislation was repealed many

years ago and does not continue to have any legal or practical effect on the

parties. No live legal controversy or concrete dispute has existed between

these parties with respect to the validity of Manitoba’s statutes for decades.

I agree with Manitoba that, as the last patent was issued in 1901, any dispute

between these parties would have crystallized, at the latest, by the early

twentieth century.

370

As a result, following the process outlined in Borowski, the court must

decide whether to exercise its discretion to pass judgment on these matters,

in spite of their mootness. As set out above, the onus is on the appellants to

persuade the court that it should exercise its discretion to decide the moot

issues in the case at bar. The appellants have not succeeded in doing so.

371

There is no issue in this case as to the first rationale, that is, the

necessary adversarial context. The case was argued here and below as fully

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as it would have been had it not been moot.

372

Turning to the second rationale (which relates to judicial economy),

from the appellants’ perspective the case raises issues of great public

importance. Furthermore, extensive judicial resources have already been

expended in connection with this matter. However, if this court were to

exercise its discretion to decide these moot constitutional issues, it could

open up other spent or repealed constitutional statutes to judicial review.

This could result in the type of legal uncertainty contemplated by Sopinka J.

in Borowski.

373

Finally, with regard to the third rationale identified by Sopinka J. in

Borowski, this court must be aware of its proper role within Canada’s

governmental structure. While the constitutional issues raised in the case at

bar were held to be justiciable in Dumont, it is clear that the issue of

mootness was not before the court at that juncture. In my opinion, the fact

that the only relief sought is a declaration in aid of extra-judicial political

relief weighs in favour of this court declining to exercise its jurisdiction to

decide these moot matters.

374

375

In this case, the determinative factor is that the impugned statutes are

all spent or repealed. As noted above, courts rarely exercise their discretion

to decide moot cases where the mootness arises as a result of the impugned

legislation being repealed.

For these reasons, I would decline to exercise my discretion to decide

the moot constitutional issues raised by the case at bar.

Page 132

III.7.6

The Métis are Aboriginal

Notwithstanding the fact that these proceedings are barred by virtue of

376

the combined operation of the limitations legislation, laches and mootness, it

is highly desirable that the issues surrounding s. 31 (and s. 32 as well) be

considered in these reasons. The appellants’ arguments concerning ss. 31

and 32 form the centerpiece of their appeal. They are of great importance

and extensive submissions were made at trial, and before this court. In my

opinion, it is in the interests of justice that this court, to the extent that we

are able to do so, provide our opinion with respect to these issues.

377

378

The appellants argue that, because they are Aboriginal, the Crown

owes them a duty based on the concept of honour of the Crown, or a Crown-

Aboriginal fiduciary relationship. In order to consider these questions, the

threshold issue is whether or not the Métis are Aboriginal.

The Métis are one of the “aboriginal peoples of Canada” as defined in

s. 35(2) of the Constitution Act, 1982, a definition that applies for the

purpose of that Act. While neither s. 35(1) nor s. 35(2), which enshrines the

rights held by the Métis as one of Canada’s Aboriginal peoples, applies in

this case, the Métis are also considered, in my opinion, Aboriginal people at

common law. Lamer C.J.C. wrote in Delgamuukw, at para. 133, that s. 35

did not create rights, but rather accorded constitutional status to rights that

already existed. In this way, the Métis’ status as an Aboriginal people was

recognized, not created, by s. 35. The Métis are Aboriginal not only because

of “their direct relationship to this country’s original inhabitants” (R. v.

Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 at para. 29), but also because, as

acknowledged in the Report of the Royal Commission on Aboriginal

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Peoples: Perspectives and Realities, vol. 4 at p. 199, “[m]odern Canada is

the product of a historical partnership between Aboriginal and non-

Aboriginal people, and Métis people were integral to that partnership.”

379

While the s. 35(2) definition does not apply in this case, s. 35 cases

remain instructive insofar as they reflect why the Métis are also considered

Aboriginal at common law. The Supreme Court of Canada described the

Métis in Powley as “… distinctive peoples who, in addition to their mixed

ancestry, developed their own customs, way of life, and recognizable group

identity separate from their Indian or Inuit and European forebears” (at para.

10). They were recognized in Powley as having “full status as distinctive

rights-bearing peoples” (at para. 38). The Métis therefore share this

common Aboriginal characteristic with the Indian and Inuit peoples whose

rights are also protected by s. 35(1), but have their own unique traditions and

historical experience unmatched by other Aboriginal groups or by the

Europeans who settled in Canada. As the Supreme Court explained at para.

38 of Powley, Métis rights do not necessarily flow from the pre-European

contact practices of the Métis’ Aboriginal ancestors. Métis rights are not

merely derivative rights flowing from their partial Indian ancestry. Rather,

they are distinctive rights deserving of protection on an independent basis, in

light of the Métis’ special status as post-contact Aboriginal peoples. This

court implicitly recognized the Métis as Aboriginal peoples in Blais, an

Aboriginal rights case in which s. 35 was not at issue. Blais was appealed to

the Supreme Court of Canada, which upheld this court’s decision.

380

Furthermore, neither respondent contested the fact that the Métis are

one of Canada’s Aboriginal peoples. The appellants’ arguments simply

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proceed on the basis that the Métis fall within this category. While Canada

argued that it is anachronistic for this court to consider the Métis in the Red

River Settlement in the 1870s to be Aboriginal, what is relevant is the

present-day common law and not how the Métis were viewed in the past,

when it is arguable that the laws and culture of the time only allowed

individuals to identify as either white/European or Indian. As Prime

Minister John A. Macdonald observed in his speech in the House of

Commons on July 6, 1885, “… the half-breeds did not allow themselves to

be Indians. If they are Indians, they go with the tribe; if they are half-breeds

they are whites, and they stand in exactly the same relation to the Hudson

Bay Company and Canada as if they were altogether white.”

381

382

Concerns about applying the law of today, and the modern values and

ideas that it reflects, to conduct that occurred in a long-past and much

different time are best left to the law of limitations, laches and mootness.

While the trial judge found that the Métis were not Indians, the more

relevant question is whether or not they are Aboriginal, and nothing in his

judgment questions their status as an Aboriginal people. In fact, in his

judgment he made several references that indicate that he correctly assumed

that the Métis are Aboriginal (see, for example, paras. 485, 1170).

383

Some commentators have argued against the Métis having status as an

Aboriginal people. For example, Thomas Flanagan, Canada’s expert

witness in the trial of this matter, argued in “The Case Against Métis

Aboriginal Rights” (1983) 9 Cdn. Pub. Policy 314-25 that Métis people

should not be considered to be Aboriginal. However, his and others’

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arguments to this effect do not reflect how the law has developed in Canada.

384

While both the Métis and Indians are Aboriginal peoples, as explained

by the trial judge, there are differences in their experiences and histories.

The facts of any given case will reflect these differences to the extent that

they are relevant in the circumstances. As a result, the law sometimes

develops differently with respect to different Aboriginal groups, as it has

with the interpretation of s. 35. The differences between the Métis and

Indians are reflected in their experiences as they emerge in the evidence in

each case, and through the application of the same law to the unique fact

situations in each case.

III.7.7 Honour of the Crown

III.7.7(a) The Trial Judgment

385

In R. v. Badger, [1996] 1 S.C.R. 771, the Supreme Court dealt with

the concept of the honour of the Crown as follows (at para. 41):

… the honour of the Crown is always at stake in its dealing with Indian

people. Interpretations of treaties and statutory provisions which have

an impact upon treaty or aboriginal rights must be approached in a

manner which maintains the integrity of the Crown. It is always

assumed that the Crown intends to fulfil its promises. No appearance of

“sharp dealing” will be sanctioned.

386

The trial judge dealt with the applicability of the doctrine of the

honour of the Crown with respect to s. 31 in two ways; first, as an

interpretive principle, and second, as a stand-alone topic alongside issues

such as fiduciary duty and Aboriginal title.

Page 136

387

The trial judge recognized that the Supreme Court’s comments in

Badger applied to statutory provisions “and so would apply to such

provisions of the [Act] as would have an impact upon the aboriginal rights of

the Métis to the extent such aboriginal rights existed or were impacted.” He

concluded his analysis by stating that there was no allegation in this case that

the Crown had engaged in sharp dealing.

388

389

In dealing with the role of the honour of the Crown in this case as an

independent issue with respect to s. 31, the trial judge gave three reasons for

finding that it did not apply.

His first reason for rejecting its applicability was that the Crown had

neither asserted sovereignty over the Métis in their capacity as Métis people,

nor had it taken over land formerly controlled by the Métis. The appellants

could therefore not bring themselves within the language of Haida Nation v.

British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511,

and Taku River Tlingit First Nation v. British Columbia (Project Assessment

Director), 2004 SCC 74, [2004] 3 S.C.R. 550, in which the root of the

doctrine of the honour of the Crown was described as arising from the

Crown’s assertion of sovereignty over Aboriginal people “in the face of

prior Aboriginal occupation” (Taku River at para. 24), and its control over

resources formerly controlled by them.

390

The trial judge’s second reason for rejecting the application of the

doctrine of the honour of the Crown was that the Métis were not a

vulnerable or unsophisticated people at the time of the discussions leading to

the passage of the Act or thereafter.

Page 137

391

His third reason was that while the doctrine of the honour of the

Crown obliges the Crown to meaningfully consult with Aboriginal people or

their representatives, in this case the delegates represented the interests of all

the residents of the Red River Settlement, and not simply the Métis. The

trial judge found that the Act was not “an instrument that dealt specifically

with or in respect of the rights or interests of the Métis” (at para. 643).

392

The trial judge also rejected the appellants’ argument that the honour

of the Crown was engaged with respect to s. 32 of the Act, writing as follows

(at para. 1170):

The provisions of section 32 did not apply to the Métis as Métis, but it

applied to all settlers. Its purpose had nothing to do with the

aboriginality of the Métis, but was simply to quiet titles and assure the

retention of lands by all residents of Red River who had held such land

prior to transfer.

III.7.7(b) The Appellants’ Position

393

The trial judge summarized the appellants’ position on the honour of

the Crown as follows (at para. 634):

… They assert that the honour of the Crown must be observed in all of

its dealings with aboriginal peoples, that it precedes and is the

foundation of the Crown’s fiduciary duty, and that it is a source of

independent obligation which continues throughout all dealings

between the Crown and aboriginal people whether or not a fiduciary

duty arises.

394

The appellants put forward the same argument on appeal, namely, that

the honour of the Crown was at stake in the negotiation of the terms and

Page 138

conditions under which Manitoba entered Confederation and in the

implementation of the Act. This is because, they say, the discussions with

the delegates were dealings by the Crown with Aboriginal people insofar as

they concerned s. 31 (since it applied only to the Métis). The honour of the

Crown having been engaged, it would not be in keeping with it to ignore

what happened in the negotiations with the delegates, a process that they

argue resulted in Manitoba’s peaceful entry into Canada. Relying on Taku

River, they submit that the Crown’s honour cannot be interpreted narrowly

or technically.

395

The appellants also say that the trial judge erred in his analysis with

respect to whether the Métis were a vulnerable people, stating in their

factum that “… the existence of the honour of the Crown does not depend in

any given instance on vulnerability. It applies to all the Crown’s dealings

with Aboriginal peoples: Haida Nation, para. 17” (at para. 82).

396

397

The appellants also say that the trial judge overlooked the fact that s.

31 dealt specifically with the rights or interests of the Métis.

The honour of the Crown, the appellants argue, goes beyond the duty

to consult with Aboriginal people and “… may give rise to a fiduciary

obligation.” They emphasize that whatever the obligation may be, the

honour of the Crown is always at stake.

398

The appellants also claim that the honour of the Crown is engaged

with respect to s. 32. They state in their factum that “Canada was required

by the honour of the Crown and in accordance with a proper construction of

section 32, to pursue a liberal policy, rather than a restrictive one” (at para.

Page 139

419). The appellants seem to rely upon the honour of the Crown, at least as

it relates to s. 32, as an alternative independent basis of Crown liability

should their fiduciary duty claim fail (at para. 424):

The persons with rights under section 32, the great majority of whom

were Métis, were vulnerable in respect of their land holdings. Canada

assumed a complete discretion with respect to fulfilling the promises

that had been made to those settlers in return for their agreement to join

Confederation. This gave rise to a fiduciary duty. It then failed to keep

its promises, thus breaching its fiduciary duty. The Appellants submit

that, in any event, it most certainly engages the honour of the Crown. It

cannot be that assurances given for the express purpose of bringing

Manitoba, Rupert’s Land and the North-west Territories into

Confederation are of no legal significance and could be abandoned at

the mere discretion of the Crown: Ross River Dena Council Band v.

Canada [2002 SCC 54, [2002] 2 S.C.R. 816] at para. 65.

[emphasis added]

399

In oral argument, the appellants submitted that in the circumstances

surrounding the drafting of s. 32, namely, most of the settlers were Métis,

that there was a territory with a provisional government in a state of armed

resistance and that war was averted because of assurances given to the

settlers, the honour of the Crown was engaged. Though no cases were relied

upon for this contention, the appellants argued that there is a concept of the

honour of the Crown outside the Aboriginal framework and beyond a public

law duty that is engaged because the Crown made promises to the settlers,

and on that basis the country was formed.

III.7.7(c) Canada’s Position

400

The trial judge described Canada’s position on the honour of the

Crown as arising from “… the Crown’s historic relationship with Indians

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who are vulnerable, uneducated people unfamiliar with European ways and

the technical nature of language, and who in their dealings with the Crown

were required to deal in a foreign language with representatives who are

better educated and far more skilled” (at para. 635). He summarized

Canada’s argument as asserting “… that the doctrine is one looked to or

relied upon for the purpose of trying to balance the inequities between

aboriginals and the Crown in their dealings” (ibid.).

401

Canada’s argument before this court is somewhat different than that

described above. Canada submits that “the application of the honour of the

Crown urged by the Plaintiffs falls outside the situations thus far recognized

by the law” (at para. 198) and that “[t]o the extent the Plaintiffs seek to

impose duties, just by way of example, to give the land in family blocks, to

issue patent within a particular time period, or to prevent sales before the age

of majority or before patent issued, no case law has used the concept to write

such substantive terms into a statutory scheme of benefits” (at para. 199).

No emphasis was placed by Canada on vulnerability or inequity.

402

Canada points out in its factum that although the Supreme Court of

Canada stated broadly in Haida Nation that the honour of the Crown is

always at stake in its dealings with Aboriginal peoples, lower courts have

“been circumspect in their application of the principle” (at para. 204) and

have held that it does not constrain the conduct of litigation or curtail

prosecutorial discretion. For example, see Polchies v. Canada, 2007 FC

493, [2007] 3 C.N.L.R. 242 at para. 74, Stoney Band v. Canada, 2005 FCA

15, 249 D.L.R. (4^th) 274 at para. 63, and Labrador Métis Nation v. Canada

(Attorney General), 2006 FCA 393, 277 D.L.R. (4^th) 60 at para. 4.

Page 141

403

With respect to s. 32, Canada submits that the delegates “…

represented the entire settlement, not the Métis exclusively. Consistent with

the role of the delegates, s. 32 of the Act applied to all ‘old settlers.’ Not

being Métis-specific, there is no basis to argue for the application of special

aboriginal law concepts, such as fiduciary principles and the honour of the

Crown, in the administration of the section” (at para. 189).

III.7.7(d) The Honour of the Crown and Sections 31 and 32 of the Act

404

405

The honour of the Crown is both an ancient and emerging doctrine. In

recent years, it has been given a new breath of life in Canadian law through

its recognition as the root of the Crown’s duty to consult with Aboriginal

peoples.

For the reasons that follow, I am of the opinion that the honour of the

Crown was at stake with respect to s. 31 of the Act. But while the honour of

the Crown is not in itself an independent basis for the relief sought by the

appellants (see Polchies at para. 74), it can in some instances give rise to

enforceable fiduciary duties. As discussed shortly, whether a fiduciary duty

exists is to be determined with reference to the approach established by the

Supreme Court of Canada in fiduciary duty cases such as Guerin and

Wewaykum. The question of which specific obligations have to be fulfilled

to meet any fiduciary duty that exists is to be determined within the fiduciary

jurisprudence.

406

McLachlin C.J.C. wrote at para. 16 of Haida Nation that “[t]he

honour of the Crown is always at stake in its dealings with Aboriginal

peoples ….” Section 31 applied exclusively to Métis people, referred to as

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“half-breeds” in that section. While (as the trial judge noted in para. 643)

the Act is not generally an instrument dealing with the Métis, s. 31 is clearly

Métis-specific.

407

Section 32, however, was a provision of general application. Even

though many of those affected by s. 32 were Métis people, that fact alone is

not sufficient to engage the honour of the Crown. Just as not all interactions

between the Crown and Aboriginal peoples engage the fiduciary relationship

that has been recognized between the two, as will be discussed later, there

must be something more than the fact that a person is Aboriginal to engage

the honour of the Crown in dealing with that person. As explained in

Ochapowace First Nation (Indian Band No. 71) v. Canada (Attorney

General), 2009 FCA 124, [2009] 3 C.N.L.R. 242 at para. 37, leave to appeal

refused, [2009] S.C.C.A. No. 262 (QL), the framework in which s. 32

operated “… does not overlap the framework within which Canada seeks to

achieve a just and equitable resolution of the claims of its Aboriginal

peoples.”

408

David M. Arnot explained the origins of the doctrine in “The Honour

of the Crown” (1996), 60 Sask.L.Rev. 339 (at p. 340):

… This is a very ancient convention with roots in Pre-Norman

England, a time when every yeoman swore personal allegiance to his

chieftain or king – whether he be Celt or Saxon. Anyone who was

charged with speaking or acting on behalf of the King bore an absolute

personal responsibility to lend credit to his master’s good name. Should

he fail in this responsibility or cause embarrassment, he was required to

answer personally to the King with his life and fortune. The Crown was

not an abstract or imaginary essence in those days but a real person

whose power and prestige was directly dependant on the conduct of his

advisers, captains, and messengers. These small societies were

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conscious of their heritage and kinship, and a single act of

irresponsibility could blemish a family’s name for generations.

409

The honour of the Crown predates Canadian Aboriginal law: see

reference to The Case of The Churchwardens of St. Saviour in Southwark

(1613), 10 Co. Rep. 66b, 77 E.R. 1025, in R. v. Marshall, [1999] 3 S.C.R.

456 at para. 43. There are few examples from the current Canadian

jurisprudence where the honour of the Crown has been applied in the non-

Aboriginal context: see, for example, Lieding v. Ontario (1991), 2 O.R. (3d)

206 at para. 24 (C.A.); British Columbia (Attorney General) v. Davies, 2009

BCCA 337, 272 B.C.A.C. 118 at para. 114. The relationship between the

honour of the Crown as applied in non-Aboriginal law cases and in the

Aboriginal law context is not clear. Significantly, the Supreme Court of

Canada’s descriptions of the honour of the Crown place great emphasis on

the Crown-Aboriginal relationship. It appears to be a very specific

manifestation of the Crown’s honour. Thus, the traditional doctrine of the

honour of the Crown does little to inform our understanding of the

application of the Aboriginal law doctrine in the present case. In any event,

the appellants have made no link between the doctrine as it exists outside the

Aboriginal context and the present case.

410

Turning to the relevant Aboriginal law jurisprudence, in R. v.

Sparrow, [1990] 1 S.C.R. 1075, the court described the role that the honour

of the Crown plays in determining whether an infringement of an Aboriginal

or treaty right protected by s. 35(1) of the Constitution Act, 1982 can be

justified as follows (at p. 1114):

Page 144

If a valid legislative objective is found, the analysis proceeds to the

second part of the justification issue. Here, we refer back to the

guiding interpretive principle derived from Taylor and Williams

[(1981), 34 O.R. (2d) 360 (C.A.)] and Guerin, supra. That is, the

honour of the Crown is at stake in dealings with aboriginal peoples.

The special trust relationship and the responsibility of the government

vis-à-vis aboriginals must be the first consideration in determining

whether the legislation or action in question can be justified.

[emphasis added]

411

But as Rothstein J.A., as he then was, observed in Stoney Band (at

para. 15):

Because the Indians did not have the opportunity to create their own

written record, the assumption is that the Crown’s approach to treaty-

making was honourable and therefore the courts interpret treaties

flexibly. However, generous rules of interpretation are not intended to

be after-the-fact largesse. Rather, their purpose is to look for the

common intention between the parties as a way to reconcile the

interests of the Indians and the Crown [citation to Mitchell omitted].

412

Another comment on the nature of the honour of the Crown is found

in Wewaykum, a fiduciary duty case, in which Binnie J. wrote that

“[s]omewhat associated with the ethical standards required of a fiduciary in

the context of the Crown and Aboriginal peoples is the need to uphold the

‘honour of the Crown’” (at para. 80). See also R. v. Taylor and Williams

(1981), 34 O.R. (2d) 360 (C.A.), Marshall and Van der Peet.

413

The doctrine of the honour of the Crown has been given new life in

recent years in the form of the duty-to-consult with Aboriginal peoples. In

Haida Nation, the honour of the Crown was found to give rise, in the

circumstances, to an independent duty on the part of the Crown to consult

Page 145

with the Haida about actions that may affect Aboriginal rights or title, even

though no Aboriginal right or title had yet been proven. McLachlin C.J.C.

explained the role and nature of the honour of the Crown in Aboriginal law

as follows (at paras. 16-18):

The government’s duty to consult with Aboriginal peoples and

accommodate their interests is grounded in the honour of the Crown.

The honour of the Crown is always at stake in its dealings with

Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771,

at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456. It is not a mere

incantation, but rather a core precept that finds its application in

concrete practices.

The historical roots of the principle of the honour of the Crown suggest

that it must be understood generously in order to reflect the underlying

realities from which it stems. In all its dealings with Aboriginal

peoples, from the assertion of sovereignty to the resolution of claims

and the implementation of treaties, the Crown must act honourably.

Nothing less is required if we are to achieve “the reconciliation of the

pre-existence of aboriginal societies with the sovereignty of the

Crown”: Delgamuukw, supra, at para. 186, quoting Van der Peet,

supra, at para. 31.

The honour of the Crown gives rise to different duties in different

circumstances. Where the Crown has assumed discretionary control

over specific Aboriginal interests, the honour of the Crown gives rise to

a fiduciary duty: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R.

245, 2002 SCC 79, at para. 79. The content of the fiduciary duty may

vary to take into account the Crown’s other, broader obligations.

However, the duty’s fulfilment requires that the Crown act with

reference to the Aboriginal group’s best interest in exercising

discretionary control over the specific Aboriginal interest at stake. …

[emphasis added]

414

The Supreme Court of Canada decided in Haida Nation that a Crown

duty to consult existed under the circumstances and found that it was not

fulfilled. In contrast, in the companion case of Taku River, while a duty to

Page 146

consult was found, the requirements of that duty were met by the Crown.

McLachlin C.J.C. also wrote for the court in Taku River and expanded

somewhat upon the meaning of the honour of the Crown (at para. 24):

The Province’s submissions present an impoverished vision of the

honour of the Crown and all that it implies. As discussed in the

companion case of Haida, supra, the principle of the honour of the

Crown grounds the Crown’s duty to consult and if indicated

accommodate Aboriginal peoples, even prior to proof of asserted

Aboriginal rights and title. The duty of honour derives from the

Crown’s assertion of sovereignty in the face of prior Aboriginal

occupation. It has been enshrined in s. 35(1) of the Constitution Act,

1982, which recognizes and affirms existing Aboriginal rights and

titles. Section 35(1) has, as one of its purposes, 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. The Crown’s honour cannot be interpreted narrowly or

technically, but must be given full effect in order to promote the

process of reconciliation mandated by s. 35(1).

[emphasis added]

415

Thus, development of the honour of the Crown as informing the

Canadian approach to Aboriginal law began before 1982. The language

used in recent Supreme Court of Canada duty to consult cases is also

consistent with the honour of the Crown doctrine existing prior to, and

outside, s. 35.

416

As is evident from the descriptions of the parties’ positions and the

trial judgment, the role of this doctrine in the circumstances has been

interpreted in a number of different ways. This is unsurprising for a doctrine

that is both rooted in centuries-old traditions and that has shown significant

growth in recent years.

Page 147

417

The honour of the Crown is a unique legal doctrine, the content or

effect of which may differ depending on the circumstances. As McLachlin

C.J.C. wrote at para. 16 of Haida Nation, it is “… a core precept that finds

its application in concrete practices.” As explained above, the concrete

practice that the honour of the Crown mandated in Haida Nation, Taku River

and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),

2005 SCC 69, [2005] 3 S.C.R. 388, was the duty to consult.

418

419

The doctrine also requires that, when it has been determined that an

Aboriginal right has been infringed, the honour of the Crown must be

considered in determining whether the infringement is justified (Sparrow at

p. 1114).

Furthermore, as the trial judge adverted to at para. 520 of his reasons,

the honour of the Crown also functions as an interpretive principle in

approaching treaties and statutory provisions that have an impact upon treaty

or Aboriginal rights. See Badger at para. 41.

420

In other cases, the honour of the Crown has been identified as the

source of specific legal obligations owed by the Crown to Aboriginal

peoples. The obligations identified thus far include the duty to consult and

fiduciary obligations: Haida Nation at paras. 16, 18 respectively.

McLachlin C.J.C. explained at para. 54 of Haida Nation that “… while the

Crown’s fiduciary obligations and its duty to consult and accommodate

share roots in the principle that the Crown’s honour is engaged in its

relationship with Aboriginal peoples, the duty to consult is distinct from the

fiduciary duty that is owed in relation to particular cognizable Aboriginal

Page 148

interests” (emphasis added).

421

422

Rothstein J.A., as he then was, noted in Stoney Band 274 at para. 18,

that the list of ways in which the honour of the Crown may manifest itself

may not yet be exhausted. Any further manifestations will, however, have to

be developed on an incremental and principled basis.

As has already been emphasized, “[t]he honour of the Crown gives

rise to different duties in different circumstances” (Haida Nation at para.

18). But it has not been recognized by the Supreme Court of Canada as an

independent cause of action. While the appellants characterize it as such in

the present case, they have not shown that that approach falls within any

principled extension of the existing honour of the Crown jurisprudence.

423

Where the honour of the Crown resonates in this case is through its

role in undergirding the fiduciary obligation claimed by the appellants.

McLachlin C.J.C. wrote at para. 18 of Haida Nation, as we have seen, that

“[w]here the Crown has assumed discretionary control over specific

Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty:

Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, at

para. 79.” In other words, while the honour of the Crown underlies any

potential fiduciary duties that may be present in this instance, the existence

of such duties are still to be determined with reference to Crown-Aboriginal

fiduciary jurisprudence.

424

The formulation of the relationship between the honour of the Crown

and fiduciary obligations found in Haida Nation differs from that articulated

Page 149

earlier by Lamer C.J.C., writing for the majority in Van der Peet. In the

course of setting out the general principles that apply to the legal

relationship between the Crown and Aboriginal peoples, he wrote that “[t]he

Crown has a fiduciary obligation to aboriginal peoples with the result that in

dealings between the government and aboriginals the honour of the Crown is

at stake” (at para. 24). The roles therefore appear to have been reversed

since the Van der Peet formulation (which is also how this court had

described the relationship in Blais at para. 33), with fiduciary obligations

now arising from the honour of the Crown.

425

McLachlin C.J.C.’s explanation of the relationship between Crown

fiduciary obligations to Aboriginal peoples and the honour of the Crown in

Haida Nation makes understandable the absence of any analytical role for

the honour of the Crown in the Supreme Court of Canada’s fiduciary cases,

such as Guerin, Blueberry River, and Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9, [2009] 1 S.C.R. 222. The honour of the Crown

underlies the Crown’s fiduciary relationship with Aboriginal peoples; it is

not derived from them.

426

As noted earlier, in Wewaykum at para. 80, Binnie J. referred to the

honour of the Crown as being “[s]omewhat associated with” the

measurement of the Crown’s conduct with respect to established fiduciary

obligations, which is different than that articulated later in Haida Nation.

Further, even in Wewaykum itself, the honour of the Crown was not

explicitly relied upon as part of the standard of conduct expected of a

fiduciary. Still, the fiduciary standard of conduct would not in any case be

expected to tolerate dishonourable conduct.

Page 150

427

While the honour of the Crown therefore plays a role here in

informing any fiduciary obligations that may be owed to the appellants, it is

ultimately the analytical framework created in the Supreme Court of

Canada’s jurisprudence that determines whether fiduciary obligations were

owed and whether they were breached. The appellants are not entitled to

any relief arising out of a stand-alone application of the honour of the Crown

doctrine.

428

In summary, it would appear that the approach of the Supreme Court

has evolved such that the Crown must act honourably in all its dealings with

Aboriginal peoples, not just where there is a Crown assertion of sovereignty

and de facto control of land and resources. However, as discussed here, the

content of the doctrine of honour of the Crown will vary significantly

depending on the context. So, for example, the doctrine of the honour of the

Crown as an independent basis of liability presently exists only in relation to

the duty to consult. In our case, however, its relevance is to flavour the

nature and extent of any fiduciary duty. It does not give rise to a

freestanding fiduciary obligation.

III.7.8 Fiduciary Relationship

429

The relationship between the Crown and the Aboriginal peoples of

Canada has been recognized as being fiduciary in nature, but not every

aspect of the relationship gives rise to a fiduciary duty. See Quebec

(Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R.

159. Iacobucci J. wrote for the court as follows (at p. 183):

Page 151

It is now well settled that there is a fiduciary relationship between the

federal Crown and the aboriginal peoples of Canada: Guerin v. The

Queen, [1984] 2 S.C.R. 335. Nonetheless, it must be remembered that

not every aspect of the relationship between fiduciary and beneficiary

takes the form of a fiduciary obligation: Lac Minerals Ltd. v.

International Corona Resources Ltd., [1989] 2 S.C.R. 574. The nature

of the relationship between the parties defines the scope, and the limits,

of the duties that will be imposed. …

[emphasis added]

430

Similarly, in Wewaykum Binnie J. wrote (at para. 83):

… I think it desirable for the Court to affirm the principle, already

mentioned, that not all obligations existing between the parties to a

fiduciary relationship are themselves fiduciary in nature (Lac Minerals,

supra, at p. 597), and that this principle applies to the relationship

between the Crown and aboriginal peoples. It is necessary, then, to

focus on the particular obligation or interest that is the subject matter of

the particular dispute and whether or not the Crown had assumed

discretionary control in relation thereto sufficient to ground a fiduciary

obligation.

[emphasis added]

431

432

The concept of a fiduciary relationship is therefore distinct from that

of a fiduciary obligation (which is also called a fiduciary duty), although the

nature of the relationship informs the determination of which types of

obligations that arise within it are of a fiduciary character.

The trial judge found that there was no fiduciary relationship between

the Métis and Canada, but he did so without considering that the relationship

between the Crown and Aboriginal peoples has been consistently recognized

as a fiduciary one. He also erred by using the factors upon which fiduciary

obligations have been found to arise in previous decisions as a test for

determining whether a fiduciary relationship existed in the present case.

Instead of recognizing that there is an ongoing Crown-Aboriginal fiduciary

Page 152

relationship and asking if the Métis are part of that relationship, the trial

judge looked at facts surrounding the administration of the Act and case law

addressing the existence of specific fiduciary obligations. Many of the facts

he relied upon are undoubtedly relevant to the matter of determining whether

a fiduciary obligation existed in the circumstances. However, the fiduciary

relationship between the Crown and the Aboriginal peoples of Canada,

which exists even when no specific fiduciary duty is in play, has not been

limited to cases in which the factors listed in para. 629 of the judgment are

present. For example, in Wewaykum (to be discussed more thoroughly

later), a fiduciary relationship (and fiduciary obligations) existed even

though the plaintiff bands had no Aboriginal title or beneficial interest in the

lands at issue.

433

Because “… not all obligations existing between the parties to a

fiduciary relationship are themselves fiduciary in nature …” (Wewaykum at

para. 83), the question of whether the Métis are part of the fiduciary

relationship between the Crown and the Aboriginal peoples of Canada is not

determinative of whether an enforceable fiduciary obligation arose in the

administration of the Act. While each case must be examined on its own

facts, the Supreme Court of Canada has established an approach to

determine whether enforceable fiduciary obligations exist in the context of

the Crown-Aboriginal relationship. The Métis’ inclusion in that relationship

dictates that the same approach be applied to the unique facts of this case.

For the reasons that follow, I find that the Métis are beneficiaries of the

fiduciary relationship that exists between the Crown and the Aboriginal

peoples of Canada.

Page 153

434

As noted above, the rights held by the Métis as one of Canada’s

Aboriginal peoples are enshrined in s. 35(1) of the Constitution Act, 1982.

While that provision does not apply to this appeal, the fiduciary relationship

between Aboriginal peoples and the Crown that is at the heart of the

appellants’ case is a general guiding principle in connection with s. 35(1). In

R. v. Sparrow, Dickson C.J.C. and La Forest J. wrote as follows for the court

(at p. 1108):

… In our opinion, Guerin, together with R. v. Taylor and Williams

(1981), 34 O.R. (2d) 360, ground a general guiding principle for s.

35(1). That is, the Government has the responsibility to act in a

fiduciary capacity with respect to aboriginal peoples. The relationship

between the Government and aboriginals is trust-like, rather than

adversarial, and contemporary recognition and affirmation of aboriginal

rights must be defined in light of this historic relationship.

435

The court’s reliance upon Guerin, a case in which s. 35 was not at

issue, demonstrates that there is a single fiduciary relationship between the

Crown and Aboriginal peoples, which resonates whether or not s. 35 is at

issue. See also Wewaykum at para. 78, where Binnie J. recognized that

“[t]he Guerin concept of a sui generis fiduciary duty was expanded in R. v.

Sparrow, [1990] 1 S.C.R. 1075, to include protection of the aboriginal

people’s pre-existing and still existing aboriginal and treaty rights within s.

35 of the Constitution Act, 1982.” While s. 35(2) of the Constitution Act,

1982, which includes the Métis in the definition of “aboriginal peoples of

Canada,” also does not apply in this case, the Métis are an Aboriginal

peoples at common law, and therefore beneficiaries of the fiduciary

relationship that has been recognized between the Crown and Aboriginal

peoples.

Page 154

436

In Wewaykum, Binnie J. wrote the following with respect to the

origins of the fiduciary relationship between the Crown and Aboriginal

peoples (at para. 79):

The “historic powers and responsibility assumed by the Crown” in

relation to Indian rights, although spoken of in Sparrow, at p. 1108, as

a “general guiding principle for s. 35(1)”, is of broader importance. All

members of the Court accepted in Ross River that potential relief by

way of fiduciary remedies is not limited to the s. 35 rights (Sparrow) or

existing reserves (Guerin). The fiduciary duty, where it exists, is called

into existence to facilitate supervision of the high degree of

discretionary control gradually assumed by the Crown over the lives of

aboriginal peoples. As Professor Slattery commented:

The sources of the general fiduciary duty do not lie, then, in a

paternalistic concern to protect a “weaker” or “primitive”

people, as has sometimes been suggested, but rather in the

necessity of persuading native peoples, at a time when they still

had considerable military capacities, that their rights would be

better protected by reliance on the Crown than by self-help.

(B. Slattery, “Understanding Aboriginal Rights” (1987), 66 Can. Bar

Rev. 727, at p. 753)

437

438

439

In the present case, the distinctive history and circumstances of the

Métis community in the Red River Settlement must be taken into

consideration in determining both whether a fiduciary obligation existed

under the circumstances, and whether it was breached.

It is true that the Métis of the Red River Settlement in the 1870s

enjoyed rights, such as those of property ownership and enfranchisement,

not accorded to the local Indians of that era. In that sense, they were in a

different relationship with the Crown than were their Indian counterparts.

At the same time, there is no doubt that the Métis also fit into the

Page 155

concept of the Crown-Aboriginal fiduciary relationship described by

Professor Slattery. The facts of this case make that clear. The Métis of the

Red River Settlement were a powerful political and military force in the

1870s. Led by Louis Riel, they were the driving force behind the

provisional government.

440

The Métis have also been recognized in s. 35 jurisprudence as

beneficiaries within the Crown-Aboriginal fiduciary relationship. In

Powley, the s. 35(1) Aboriginal rights test was applied to a Métis claimant,

modified to accommodate the reality that the Métis are different from

previous Indian-Aboriginal claimants. But the modification that was made,

which adopted a post-contact but a pre-control test, pertained only to the

time period at which the claimant had to prove that the right existed. The

modification was made, the court explained, to “reflect the distinctive

history and post-contact ethnogenesis of the Métis, and the resulting

differences between Indian claims and Métis claims” (at para. 14). Not dealt

with were the other elements of the test, as applied in Indian-Aboriginal

rights cases, namely, inalienability, communal or collective holding, and

exclusive continuous occupation.

441

No modification was made, however, to the justification part of the

test for Aboriginal rights. The justification aspect of the test, first set out in

Sparrow, is applied once an Aboriginal right has been established and has

been found to have been infringed upon by the Crown. The first part of the

justification test requires the Crown to demonstrate that it was acting

pursuant to a valid legislative objective (Sparrow at p. 1113). The second

part of the test was explained by Lamer C.J.C. in R. v. Gladstone, [1996] 2

Page 156

S.C.R. 723 at para. 54 as dictating that “… the government must

demonstrate that its actions are consistent with the fiduciary duty of the

government towards aboriginal peoples.” As is almost always the case,

context is critical. As noted in Sparrow: “Given the generality of the text of

the constitutional provision [s. 35], and especially in light of the

complexities of aboriginal history, society and rights, the contours of a

justificatory standard must be defined in the specific factual context of each

case” (at p. 1111).

442

When the court in Powley applied the justification test, it found that

the infringement of the established Aboriginal right was not justified. By

applying the Sparrow justification test unmodified to the Métis Aboriginal

rights-holders in Powley, the Supreme Court of Canada recognized that the

Métis are one of the beneficiaries within the Crown-Aboriginal fiduciary

relationship.

443

I conclude that both precedent and principle demonstrate that the

Métis are part of the sui generis fiduciary relationship between the Crown

and the Aboriginal peoples of Canada. That relationship being established,

it is next necessary to consider whether Canada owed any fiduciary

obligations to the Métis in the administration of the Act.

III.7.9 Fiduciary Duty

III.7.9(a) The Trial Judgment

444

In the trial decision, Aboriginal title was a central part of the fiduciary

analysis. After reviewing the facts and case law, the trial judge concluded

that “the Métis did not come within any of the three criteria or dimensions

Page 157

enunciated in Delgamuukw, and as modified by Powley, which are

necessary for enjoyment of aboriginal title” (at para. 593). He then

considered whether the Métis people of Manitoba were Indians and

concluded that they were not.

445

The fiduciary duty analysis engaged in by the trial judge was therefore

based on the Métis not having Aboriginal title and not being Indians. He

emphasized that the fact that the appellants are Métis, and not Indians, must

be considered in determining how precedents dealing with Indians might

apply. He wrote (at para. 620):

To my knowledge, all of the decided cases which deal with aboriginal

title to land and the creation of a fiduciary duty or obligation owing

from the Crown to aboriginals in that context have been cases involving

Indians where either aboriginal title was found to exist or its existence

was not in dispute.

446

The trial judge held (at paras. 629-31):

From Guerin and those cases which have followed it, I conclude that

there are three fundamental criteria for the creation of a fiduciary

relationship as between aboriginals and the Crown in respect of

aboriginal title to land:

(1)

the existence of Indian or aboriginal title;

(2)

the fact that the Indian or aboriginal interest in the land is

inalienable except upon surrender to the Crown;

(3) the resulting responsibility of the Crown to the aboriginals

flowing from the surrender requirement.

In the present case, the plaintiffs argue that a fiduciary relationship

existed between Canada and the Métis and that a fiduciary duty arose

with respect to the s. 31 land grants “out of the extinguishment (by

statute, not by surrender …) of the Métis Aboriginal title”. The

plaintiffs assert that “where a people exchange their Aboriginal rights

Page 158

for a statutory affirmation of certain rights to be held in lieu thereof, the

same principles apply.”

That may be so where the facts warrant such a finding. But it is not the

case here. As I have already decided that the Métis did not hold

aboriginal title, there was nothing to surrender or cede. In the result, no

responsibility existed in the Crown relative to the land in question.

Hence, no relationship of a fiduciary nature, nor fiduciary duty, existed

between Canada and the Métis in respect of the subject land.

447

The trial judge also considered, and rejected, the appellants’ argument

that a fiduciary relationship existed as a result of the fact that the s. 31

beneficiaries were children (at para. 632):

The plaintiffs also argue the existence of a fiduciary relationship in

respect of the s. 31 grant by reason of the fact that the grant was to

children. In my view, there is no merit to that assertion. “Children”

does not in the language of s. 31 mean infants or minors. Rather, it is a

description of lineage so that even if there were merit in the argument

that such a relationship existed because the recipients were infants, it

surely would not apply to those who fall within the description but

were adults. Furthermore, however, in my view, the Government did

not stand in a fiduciary relationship to those entitled under s. 31 but

who in fact were infants. Their parents or guardians may well be

fiduciaries to their children, but not the Government by reason only of

the fact of their infancy.

448

The trial judge ultimately concluded that the Crown could not be

faulted for its application of s. 31 (at paras. 943-44):

In my view, so long as Canada, in implementing the s. 31 grant

complied with the language of the Act by giving the land for division

amongst the children of the half-breed heads of families and did not act

in bad faith in so doing, its conduct cannot be successfully challenged.

Mistakes, even negligence, on the part of those responsible for

implementation of the grant are not sufficient to successfully attack

Canada’s exercise of discretion in its implementation of the grant.

Page 159

A complaint that the administration or implementation of the grant or

its outcome is unsatisfactory is not a justiciable complaint so long as

what was done or not done was pursuant to the language of the Act and

the bona fide exercise of discretion within the terms of the Act.

449

Because of his conclusion that no fiduciary relationship or duty

existed, the trial judge did not specifically address the question of whether

that duty was breached.

III.7.9(b) The Appellants’ Position

450

The appellants rely heavily on the language of s. 31 of the Act in

advancing their claim that the Crown owed the Métis a fiduciary duty with

respect to that section. In their factum, they explain how they interpret s. 31

(at para. 135):

The terms of section 31 imposed the fiduciary duty, that is:

a.

the grant was for the purpose of the extinguishment of the Métis

children’s Aboriginal title;

b.

c.

d.

it was for the benefit of the Métis families;

the land was to go to the children of the Métis families;

the children were to receive the grants as the culmination of the

process of appropriation, selection, division and granting of

land; and

e.

the whole scheme was to be carried out “under regulations to be

from time to time made by the Governor General in Council.”

451

The appellants emphasize that while the delegates had attempted to

have the distribution of land to the Métis children administered by Manitoba,

Canada did not allow this to happen. The result, they say in their factum, is

Page 160

that “… complete discretion as to the selection, allotment and granting of the

land lay with the Crown, and it was the children of the Métis who were

vulnerable. This falls within the classic definition of fiduciary obligation”

(at para. 137). They go on at para. 138 of their factum to quote from

Blueberry River (at para. 38):

Generally speaking, a fiduciary obligation arises where one person

possesses unilateral power or discretion on a matter affecting a second

“peculiarly vulnerable” person: see Frame v. Smith, [1987] 2 S.C.R.

99; Norberg v. Wynrib, [1992] 2 S.C.R. 226; and Hodgkinson v. Simms,

[1994] 3 S.C.R. 377. The vulnerable party is in the power of the party

possessing the power or discretion, who is in turn obligated to exercise

that power or discretion solely for the benefit of the vulnerable party.

…

[emphasis added by appellants]

452

453

They say that even if the Métis beneficiaries of s. 31 had not been

Aboriginal, “[t]he very words of s. 31 standing alone would give rise to an

inference of fiduciary obligation: See Frame v. Smith [1987] 2 S.C.R. 99

(SCC) … per Wilson J.”

Relying on Guerin, the appellants assert that the Métis had Aboriginal

title as evidenced by “… the extinguishment of an interest in Indian title and,

arising therefrom, a setting aside of 1.4 million acres for the 7,000

Aboriginal children” (at para. 140). They emphasize that the Métis

beneficiaries of s. 31 were in a legally vulnerable position, that they placed

their trust in the Crown, and that the Crown had unilateral discretion over

their interests.

454

The vulnerability that fiduciary duty concerns itself with is legal

vulnerability, say the appellants, and therefore the trial judge’s finding

Page 161

(made with respect to the honour of the Crown) that the Métis were not a

vulnerable people generally is not relevant to the fiduciary duty analysis.

455

456

The appellants quote several speeches in the House of Commons and

the Senate and state that “[t]here can be no doubt that the Crown – even

through changes of government - acknowledged that it had this grave

responsibility.”

The appellants argue that the fiduciary duty the Crown had to the

Métis was a constitutional obligation as a result of the Constitution Act,

1871. Their argument appears to rest on two main points. First, “… the

discretion conferred on the Crown by section 31 was limited by the fiduciary

obligation - a constitutional obligation - it owed to the Métis children under

that section” (at para. 163 of the appellants’ factum, emphasis in original)

because all executive powers must conform with constitutional imperatives.

Second, because s. 31 became part of Canada’s Constitution in 1871, after

that time the Crown’s fiduciary duty could only be “… discharged by

performance or by a constitutional amendment enacted by the United

Kingdom.”

III.7.9(c) Canada’s Position

457

458

Canada argues that no errors were made by the trial judge with respect

to the findings that the appellants did not have Aboriginal title and that no

fiduciary obligations arose.

Canada states that it is only in special circumstances that dealings

between the Crown and Aboriginal peoples give rise to enforceable fiduciary

obligations. Canada explained the test for determining whether a fiduciary

Page 162

duty exists as requiring the identification of a cognizable Indian interest, and

an undertaking of discretionary control over that interest by the Crown in a

way that invokes responsibility in the nature of a private law duty.

459

Aboriginal ancestry, Canada argued, is insufficient to invoke fiduciary

principles. It said that the Act was a benefits scheme that attracted only

public law duties, and that there was no assumption of discretionary control

over land management, but rather a mechanism for conveyance to

individuals. Further, Canada argued there was no duty, fiduciary or

otherwise, owed to the Métis children as children.

460

The trial judge therefore correctly found that there was no “cognizable

Indian interest” (per Binnie J. in Wewaykum at para. 85) sufficient to

establish a fiduciary obligation in the administration of the Act.

III.7.9(d) The Two-Part Test for Finding a Fiduciary Obligation

Within the Crown-Aboriginal Fiduciary Relationship

461

Having already found that there is a fiduciary relationship between the

Métis and the Crown, the question arises whether the appellants have

established that an enforceable fiduciary duty arose in the administration of

the Act. As Sopinka J., whose reasons on this point were adopted by Binnie

J. in Wewaykum at para. 83, wrote in Lac Minerals at p. 597, “… not all

obligations existing between the parties to a well-recognized fiduciary

relationship will be fiduciary in nature.”

462

The law pertaining to fiduciary duties has caused some frustration to

those who seek to understand it. As expressed by Professor Leonard I.

Page 163

Rotman in Fiduciary Law (Toronto: Thomson Canada Limited, 2005) at 1-2:

The fiduciary concept is wonderfully enigmatic. A variety of terms

have been used to describe this peculiar creature of English Equity:

“aberrant,” “amorphous,” “elusive,” “ill-defined,” “indefinite,”

“vague,” “peripatetic,” and “trust-like” are but a few. The fiduciary

concept has also been characterized as “a concept in search of a

principle” and “equity’s blunt tool.” The consequences of its

application have been referred to as “draconian.” Still more adjectives

could easily be added to the mix: intriguing, confusing, complex,

abstract, flexible, wide-ranging and vexing.

463

On a similar note, Twaddle J.A., writing for this court in Ross &

Associates v. Palmer, 2001 MBCA 17, 153 Man.R. (2d) 147 at para. 28,

wrote that “[n]o precise definition of a fiduciary exists and, although some

academic writers have attempted such a definition, the attempts do little

more than list the factors to be considered.” As we shall see, however, in

recent years, a two-pronged test to determine whether fiduciary duties are

owed by the Crown to Aboriginal peoples has emerged in the Supreme

Court of Canada jurisprudence.

464

In Guerin, Dickson J., as he then was, stated (at p. 384):

I do agree, however, that where by statute, agreement, or perhaps by

unilateral undertaking, one party has an obligation to act for the benefit

of another, and that obligation carries with it a discretionary power, the

party thus empowered becomes a fiduciary. Equity will then supervise

the relationship by holding him to the fiduciary’s strict standard of

conduct.

465

The Supreme Court of Canada’s decision in Guerin was the first to

give effect to enforceable fiduciary obligations owed by the Crown towards

an Aboriginal group, in the context of a surrender of Indian reserve land to

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the Crown. As Dickson J. pointed out (at p. 385):

It should be noted that fiduciary duties generally arise only with regard

to obligations originating in a private law context. Public law duties,

the performance of which requires the exercise of discretion, do not

typically give rise to a fiduciary relationship. As the “political trust”

cases indicate, the Crown is not normally viewed as a fiduciary in the

exercise of its legislative or administrative function. The mere fact,

however, that it is the Crown which is obligated to act on the Indians’

behalf does not of itself remove the Crown’s obligation from the scope

of the fiduciary principle. As was pointed out earlier, the Indians’

interest in land is an independent legal interest. It is not a creation of

either the legislative or executive branches of government. The

Crown’s obligation to the Indians with respect to that interest is

therefore not a public law duty. While it is not a private law duty in the

strict sense either, it is nonetheless in the nature of a private law duty.

Therefore, in this sui generis relationship, it is not improper to regard

the Crown as a fiduciary.

466

Wilson J., in a concurring opinion, made similar comments (at p.

352):

It seems to me that the “political trust” line of authorities is clearly

distinguishable from the present case because Indian title has an

existence apart altogether from s. 18(1) of the Indian Act. It would fly

in the face of the clear wording of the section to treat that interest as

terminable at will by the Crown without recourse by the Band.

467

Most recently, the test for determining whether a given obligation is

fiduciary in nature in the Crown-Aboriginal context was described at para.

83 of Wewaykum as depending “… on identification of a cognizable Indian

interest, and the Crown’s undertaking of discretionary control in relation

thereto in a way that invokes responsibility ‘in the nature of a private law

duty’....” See as well para. 18 of Haida Nation where McLachlin C.J.C.

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wrote that “[w]here the Crown has assumed discretionary control over

specific Aboriginal interests, the honour of the Crown gives rise to a

fiduciary duty: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245,

2002 SCC 79, at para. 79.”

468

The test for determining whether a fiduciary obligation exists within

the Crown-Aboriginal relationship is therefore composed of two main parts:

first, a specific or cognizable Aboriginal interest and second, an undertaking

of discretionary control over that interest by the Crown in the nature of a

private law duty. While the test was described in Wewaykum, a case

involving an Indian band, as pertaining to Indian interests, in Haida Nation,

where McLachlin C.J.C. was describing the fiduciary duties in general terms

in a case where no fiduciary obligations were at issue, she wrote of specific

Aboriginal interests.

469

The trial judge wrote that there are “… three fundamental criteria for

the creation of a fiduciary relationship as between aboriginals and the Crown

in respect of aboriginal title to land” being (at para. 629):

(1) the existence of Indian or aboriginal title;

(2) the fact that the Indian or aboriginal interest in the land is

inalienable except upon surrender to the Crown;

(3) the resulting responsibility of the Crown to the aboriginals

flowing from the surrender requirement.

470

While those factors reflect aspects of fiduciary duty cases pertaining

to surrenders of land, such as Guerin and Blueberry River, they do not

comprise the test for fiduciary obligations in the Crown-Aboriginal

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relationship. The test is as articulated in Wewaykum and Haida Nation

above; findings of fiduciary duties within the Crown-Aboriginal relationship

have not been limited to claims with the elements set out in para. 629 of the

trial judgment. The trial judge referred to Wewaykum in his decision, but

only with respect to limitations, laches and the honour of the Crown, and not

in the fiduciary duty portion of the decision.

471

While the appellants focus on the language of s. 31 in seeking to

establish a fiduciary obligation, there is no magic to the words “for the

benefit” found in that section. Wilson J. found at pp. 348-49 of Guerin that

s. 18 of the Indian Act, which mandates that “… reserves shall be held by

Her Majesty for the use and benefit of the respective bands …” does not “…

per se create a fiduciary obligation in the Crown with respect to Indian

reserves …” but rather “… recognizes the existence of such an obligation.”

See also Ermineskin, where Rothstein J. examined the language of Treaty 6

and the relevant circumstances, concluding that a fiduciary duty did not arise

(at paras. 49-50):

The bands say that Treaty No. 6 imposed on the Crown the duties of a

common law trustee. In my view, Treaty No. 6 did not express such an

intention. For example, the treaty states that the Plain and Wood Cree

Tribes of Indians relinquished “all their rights, titles and privileges

whatsoever, to the lands [within the specified territory]”. The Treaty

further states that reserves would be set aside and that the Crown would

be entitled to sell or dispose of the reserve lands “for the use and

benefit of the said Indians entitled thereto, with their consent”.

However, the Crown also retained the right to appropriate reserve land

for any public purpose with payment of due compensation.

This language does not support an intention to impose on the Crown

the duties of a common law trustee. All rights were relinquished to the

Crown, and the Crown then agreed to set aside certain lands for use by

the Indian signatories. The language and circumstances point to a

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conditional transfer of the land, rather than the establishment of a

common law trust.

472

To conclude, in order to establish a fiduciary obligation within the

Crown-Aboriginal relationship, there must be a specific or cognizable

Aboriginal interest and an undertaking of discretionary control over that

interest by the Crown. I will now consider whether both aspects of that test

are met in the present case.

III.7.9(e) Part I of the Fiduciary Duty Test:

Cognizable or Special Aboriginal Interest

473

While a cognizable Aboriginal interest is required in order to establish

a fiduciary obligation within the Crown-Aboriginal relationship, precisely

what that means is not entirely clear. A particular complication is that this is

a case of first impression with respect to what qualifies as a cognizable

Métis Aboriginal interest.

All previous cases addressing fiduciary

obligations outside the s. 35 context deal with Indian Bands, often with

reserve land. There is little guidance on what constitutes a cognizable

Aboriginal interest in the cases dealing with Indians. This makes the task of

determining what is required for a cognizable Métis interest even more

difficult.

474

The appellants’ fiduciary claim was ultimately rejected based upon

the trial judge’s finding that the appellants had not proven Aboriginal title.

He wrote that since the “… Métis did not hold aboriginal title, there was

nothing to surrender or cede” (at para. 631). The appellants could not,

therefore, meet any part of the test he had set out at para. 629. The

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appellants argued before this court that the trial judge was not permitted to

come to this conclusion because the language of s. 31 indicated that the land

grant was given “… towards the extinguishment of the Indian Title to the

lands in the Province ….” Given my view that Aboriginal title is not a

mandatory prerequisite to find a fiduciary obligation, and that any fiduciary

obligation that may have existed was not breached in any case, I do not find

it necessary to decide whether the Métis had Aboriginal title. Nor do I find

it necessary to comment further on the manner in which the test for Métis

Aboriginal title was formulated in the trial judgment.

475

The evidence indicates that during the events surrounding the

enactment of s. 31, there was uncertainty on everyone’s part regarding the

nature and extent of the Métis interests that s. 31 purported to extinguish

(see para. 649 of the trial judgment). The fact that there was an element of

political expediency to s. 31 is to be expected in the course of creating a new

province where many competing views and interests are engaged.

Evidently, however, there was enough of a sense that the Métis arguably had

rights that were not held by others living in what was to become Manitoba to

lead to the phrase in s. 31 that the land grant was being made “towards the

extinguishment of” any such potential rights.

III.7.9(e)(i) Is Aboriginal Title an Essential Component

of a Cognizable Aboriginal Interest?

Guerin v. Canada

476

The type of Aboriginal interest that gave rise to a fiduciary duty in

Guerin was described by Dickson J., as he then was, in the course of

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distinguishing the case before him from cases where there was an

unenforceable political trust. He wrote that in the political trust cases, “…

the party claiming to be beneficiary under a trust depended entirely on

statute, ordinance or treaty as the basis for its claim to an interest in the

funds in question” (at p. 379). In contrast, he wrote that “[t]he situation of

the Indians is entirely different. Their interest in their lands is a pre-

existing legal right not created by Royal Proclamation, by s. 18(1) of the

Indian Act, or by any other executive order or legislative provision” (ibid.).

Dickson J. wrote that it was “… the nature of Indian title and the

framework of the statutory scheme established for disposing of Indian

land …” (at p. 376) that imposed a fiduciary duty on the Crown in dealing

with those lands.

477

On their face, these statements appear to require that a beneficiary

claiming a fiduciary duty on the basis of Guerin would have to have

Aboriginal title. However, while Dickson J. found it to be “worth noting”

that the reserve was located in “the ancient tribal territory of the Musqueam

Band” (at p. 379), whether or not the band had Aboriginal title over that

territory was never established in Guerin. It did not matter whether the band

had Aboriginal title because their interest was said to be the same in either

case. Dickson J. wrote (ibid.):

It does not matter, in my opinion, that the present case is concerned

with the interest of an Indian Band in a reserve rather than with

unrecognized aboriginal title in traditional tribal lands. The Indian

interest in the land is the same in both cases: see Attorney-General for

Quebec v. Attorney-General for Canada, [1921] 1 A.C. 401, at pp. 410-

11 (the Star Chrome case). It is worth noting, however, that the reserve

in question here was created out of the ancient tribal territory of the

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Musqueam Band by the unilateral action of the Colony of British

Columbia, prior to Confederation.

478

479

A close reading of language used elsewhere in Guerin provides support for my conclusion that

Dickson J. was deliberate in simultaneously relying on Aboriginal title as the basis for the fiduciary duty and in

not requiring that the band prove Aboriginal title in the specific lands at issue.

This analysis indicates that Aboriginal title gives Aboriginal peoples a

sufficient interest in land that, for the purpose of establishing a fiduciary

duty, need not necessarily be limited to particular parcels over which the

group has Aboriginal title. This approach does not bar fiduciary duty claims

regarding land where there is no Aboriginal title, but still leaves to be

determined whether an interest in land short of Aboriginal title is a sufficient

basis for a cognizable Aboriginal interest therein.

Roberts v. Canada

480

Roberts v. Canada, [1989] 1 S.C.R. 322, is a decision stemming from a motion to dismiss the

Wewaykum claim based on the Federal Court of Canada’s lack of jurisdiction. The motion was dismissed by the

Federal Court ([1987] 1 F.C. 155), and that decision was upheld by the Federal Court of Appeal ([1987] 2 F.C.

535), and the Supreme Court of Canada, although their reasons for doing so were not the same.

481

482

483

In the course of making the decision as to the Federal Court’s jurisdiction over the matter, Wilson J.

made statements about the nature of the Crown-Aboriginal fiduciary duty which revealed that it is based on the

common law of Aboriginal title, even in a case where the plaintiff band did not claim to have Aboriginal title.

The relationship between Aboriginal title and fiduciary duty was an essential aspect of the decision, and

Wilson J. acknowledged that it was “the common law of aboriginal title which underlies the fiduciary obligations

of the Crown to both Bands” (at p. 340).

What made this link between Aboriginal title and the Crown-Aboriginal fiduciary duty particularly

significant is that “… the Plaintiff Band conceded that its claim was not based

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upon aboriginal title, but contended that such title would be relevant to the

determination of the right to occupation of the reserve^{” (at p. 337).}

484

Wilson J. accepted that one of the sources of law that is to be looked to in order to resolve the dispute is

^“…the common law relating to aboriginal title which underlies the fiduciary

nature of the Crown’s obligations^{” (at p. 337).}

485

486

When Wilson J. wrote that “[t]he right to the use and occupancy of reserve

lands flows from the sui generis nature of Indian title^{” (at p. 337), a connection was}

made between Aboriginal title and Indian reserves.

Thus, the Crown-Aboriginal fiduciary duty with respect to land was not limited to the lands over which

a given band can prove they have Aboriginal title. Still, the land at issue was land that was to be part of a

reserve. This is not a factor found in the present appeal.

Wewaykum Indian Band v. Canada

487

Wewaykum contains broad cautionary statements about limiting the

application of the Crown’s fiduciary duty towards Aboriginal peoples, but it

seems to apply a low threshold in finding that a fiduciary duty existed. In

Wewaykum, each band’s fiduciary claim focussed upon lands that it had

never occupied and in which it held no beneficial interest, although each

band did occupy reserves in the same general area.

488

489

Given their recent entry into the area, the bands did not claim they had

Aboriginal title or any other s. 35(1) right (at para. 3).

The fiduciary claim being made by each band was based on their

rights to the other’s reserve, as gleaned from rather technical interpretations

of departmental schedules. Binnie J. wrote that the bands had been “… held

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to lack any beneficial interest in the other band’s reserve” (at para. 86). Yet

they still had a property interest sufficient to establish a fiduciary duty in the

process of reserve creation (see para. 89).

490

Exactly how these property interests translated into the basis for

fiduciary obligations is not readily apparent. Binnie J. concluded that with

respect to reserve creation, “the nature of the appellant bands’ interest in

these lands and the Crown’s intervention as the exclusive intermediary to

deal with others (including the province) on their behalf, imposed on the

Crown a fiduciary duty” (at para. 97).

491

Professor David W. Elliott made the following comment in his article

“Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the

Crown” (2003), 29 Queen’s L.J. 1 (at p. 6):

Because the source of the independence of the interest was aboriginal

title, it was important to know what kind of connection was needed

between this title and the interest of the claimants. The Court said

merely that, in this case, the two interests are “the same” for the

purposes of the duty. This suggests that perhaps only a loose

connection was needed. …

[emphasis added]

492

493

The court concluded that the fiduciary duty also existed after the

reserves were created.

In addressing what type of “cognizable Indian interest” was required,

Binnie J. began by describing the impact of Guerin on Crown-Aboriginal

fiduciary relations. He wrote that the “quasi-proprietary interest” in reserve

land could not be put on the same footing as a government benefits program,

Page 173

which “… will generally give rise to public law remedies only” (at para. 74).

494

Guerin was distinguished on the basis that (at para. 91):

The situation here, unlike Guerin, does not involve the Crown

interposing itself between an Indian band and non-Indians with respect

to an existing Indian interest in lands. Nor does it involve the Crown as

“faithless fiduciary” failing to carry out a mandate conferred by a band

with respect to disposition of a band asset. The federal Crown in this

case was carrying out various functions imposed by statute or

undertaken pursuant to federal-provincial agreements. Its mandate was

not the disposition of an existing Indian interest in the subject lands,

but the creation of an altogether new interest in lands to which the

Indians made no prior claim by way of treaty or aboriginal right.

[emphasis added]

495

Guerin was not, however, confined to its “unique facts.” Binnie J.

wrote (at para. 98):

… In Guerin, Dickson J. said the fiduciary “interest gives rise upon

surrender to a distinctive fiduciary obligation on the part of the Crown”

(p. 382). These dicta should not be read too narrowly. Dickson J.

spoke of surrender because those were the facts of the Guerin case. As

this Court recently held, expropriation of an existing reserve equally

gives rise to a fiduciary duty: Osoyoos Indian Band v. Oliver (Town),

[2001] 3 S.C.R. 746, 2001 SCC 85. See also Kruger v. The Queen,

[1986] 1 F.C. 3 (C.A.).

496

The claimants in Guerin and Wewaykum had one important factor in

common: the claimed interest was in land. As Binnie J. explained (at para.

81):

… The appellants seemed at times to invoke the “fiduciary duty” as a

source of plenary Crown liability covering all aspects of the Crown-

Indian band relationship. This overshoots the mark. The fiduciary duty

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imposed on the Crown does not exist at large but in relation to specific

Indian interests. In this case we are dealing with land, which has

generally played a central role in aboriginal economies and cultures. ...

[emphasis added]

497

But there are limits; as the court emphasized (at para. 83):

… not all obligations existing between the parties to a fiduciary

relationship are themselves fiduciary in nature (Lac Minerals, supra, at

p. 597), and that this principle applies to the relationship between the

Crown and aboriginal peoples. It is necessary, then, to focus on the

particular obligation or interest that is the subject matter of the

particular dispute and whether or not the Crown had assumed

discretionary control in relation thereto sufficient to ground a fiduciary

obligation.

[emphasis added]

498

While the nature of the particular interest in question in each case

must be considered, the fact that the cognizable Aboriginal interest at issue

pertains to land stands out as a critical factor in Wewaykum. The key factors

that gave rise to the cognizable Aboriginal interest in Wewaykum are the

bands’ occupation of those general areas that ultimately became their

reserves, and the fact that the Aboriginal interest at issue was land.

III.7.9(e)(ii) Conclusion Re Aboriginal Title and Cognizable Interest

499

A clear explanation of the Aboriginal interest in land required in order

to ground a fiduciary duty remains elusive, but it is conceptually linked to

Aboriginal title. The fiduciary duty analysis found in the trial judgment is

primarily based upon Guerin, and cases citing or explaining it. Guerin, as

we have seen, is a complex case, particularly on the issue of the nature of the

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interest required for a fiduciary duty, and quite susceptible when read on its

own to the interpretation placed upon it in the trial judgment. While there

was no finding in Guerin that the plaintiff band had Aboriginal title, its

analysis relies heavily on the general existence of Aboriginal title. Yet a

close reading of Guerin demonstrates its consistency with the finding of a

fiduciary duty under much different circumstances in Wewaykum, and

reveals how the very existence of Aboriginal title in Canada gives rise to

cognizable Aboriginal interests beyond the specific locations over which a

given group can prove that they hold such title. This view is bolstered by

the judgment of Wilson J. in Roberts who found that the common law of

Aboriginal title underlies the Crown’s fiduciary obligations to the plaintiff

band, even though its fiduciary claim was not based on Aboriginal title.

500

The fact that no legal interest in a specific land at issue is required in

order to ground a fiduciary duty in the Crown-Aboriginal relationship was

noted by Kent McNeil in “Culturally Modified Trees, Indian Reserves and

the Crown’s Fiduciary Obligations” (2003), 21 S.C.L.R. (2d) 105, where he

wrote (at p. 135):

Given that in both Ross River and Wewaykum the Court found that

fiduciary obligations arose prior to the bands acquiring any legal

interest in the lands in question, it is obvious that the “cognizable

Indian interest” referred to by Binnie J. in this passage does not have to

be a legal interest. In the sui generis context of the Crown’s

relationship with the Aboriginal peoples, interests that are not legal can

give rise to duties that are of a private law nature if the Crown exercises

discretionary power over those interests.

501

This analysis is consistent with an understanding that there is a

Page 176

general Aboriginal interest in land of a strength and nature that is not

dependent upon whether or not any particular group ever had, or can prove

that it had, title to a specific parcel of land.

502

If this analysis is correct, it is not necessary for a given Aboriginal

group to have Aboriginal title in order to be owed a fiduciary obligation with

respect to land. Notwithstanding, it is difficult to extrapolate from the

decided cases whether the Métis interest in the s. 31 land grant is sufficient

to constitute a cognizable Aboriginal interest.

503

The factual differences between the appeal before us and Guerin and

Wewaykum are very significant. While those cases dealt with Indians and

interests relating to reserves and the creation of reserves, here we are

addressing a land grant to the Métis that purported to extinguish their

“Indian title.” Reserves are held communally by a band, but the s. 31 grants

were distributed to individuals, consistent with existing landholdings within

the Settlement where a free market economy prevailed. The decided

Supreme Court of Canada cases in which fiduciary obligations have been

found with respect to the Crown-Aboriginal relationship in land all involve

the creation, surrender or appropriation of reserve land.

504

But there are some similarities between the cases. The Métis are

Aboriginal people, some of whom were being allocated land in a process

that was at the discretion of the Crown. As we have seen, there is no

requirement that there has been any pre-existing beneficial interest in the

land on the part of the appellants to bring themselves within Wewaykum.

The interest held by the Métis in the Act lands is arguably comparable to that

Page 177

of the bands in Wewaykum, in that (leaving aside s. 32 lands) they had

occupied lands in Assiniboia for decades but made no formal claim.

505

In addition, what the Métis have that the Wewaykum bands lacked is the statement in s. 31 of the Act

^{that it was enacted “}towards the extinguishment of the Indian Title to the lands in

the Province …^{.” Some significance might be accorded to the fact that that section purports to give the}

Métis children land grants in return for the extinguishment of Indian title. It is far from clear what interest the

Métis of Red River actually had prior to s. 31 being enacted, if any, but their ability to claim Aboriginal title was

lost (or at least seriously impeded) through its enactment. The Métis of Red River had an interest of some kind

sufficient to be recognized, at least for political purposes, as having been extinguished through the Act.

506

Nor should it be forgotten that the Act was enacted in the process of nation-building, and evolved from

^{negotiations between Canada and the delegates.}The quote attributed to Professor Slattery

at para. 79 of Wewaykum, which links Canada’s obligations to the “necessity

of persuading native peoples, at a time when they still had considerable

military capacities, that their rights would be better protected by reliance on

the Crown than by self-help,” resonates on the facts of this case.

507

My conclusion is that while Aboriginal title is an important part of the

underlying rationale for fiduciary obligations found in many Crown-

Aboriginal fiduciary cases, Guerin being the most prominent example, it is

not mandatory. I conclude that Aboriginal peoples’ independent, pre-

existing interest in land provides the basis for enforceable fiduciary duties

even when the Aboriginal group has no title in the land (Wewaykum), or

where title may be present but has not been proven (Guerin). This means

that it is possible that the Métis could have an interest in land sufficient to

meet this particular requirement towards establishing a fiduciary duty.

508

The facts in this case have some significant similarities to those in

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Wewaykum. However, the differences are great, and can primarily be

attributed to the fact that the manner in which the Crown and the Métis dealt

with one another is so very different than the relationship between Indians

and the Crown. Reserves are at the centre of the fiduciary duty cases dealing

with land in the Crown-Aboriginal context, but the decided cases pertain to

Indians, not the Métis. It is to be expected that the approach to a cognizable

Métis interest could well differ from that with respect to Indians. The

Supreme Court of Canada in Powley modified the pre-contact Aboriginal

rights test in a manner that made it possible for the Métis, as a people with

post-contact origins, to assert rights protected by s. 35 of the Constitution

Act, 1982. Modification of the other components of the Aboriginal rights

test was not addressed, but would surely have to be in the circumstances

before this court. For example, the test for a cognizable Métis interest, if

there is one, by definition would certainly not require that a reserve be

involved.

509

The question of exactly what does constitute a cognizable Métis

interest, and whether one exists in this truly unique case I leave for another

day. Since, as we will shortly see, the appellants have not proven that there

was any breach of the fiduciary standard of conduct in the administration of

s. 31 of the Act, it is neither necessary nor desirable to determine whether

they had a cognizable Aboriginal interest sufficient to ground a fiduciary

duty; all the more so since focussed argument on whether or not this critical

component of a fiduciary obligation existed has not taken place.

III.7.9(f) Part II of the Fiduciary Duty Test: Crown Discretion

Page 179

510

The second part of the test for determining if a fiduciary obligation

existed is whether “… the Crown has assumed discretionary control …”

(Haida at para. 18) over the interest in question. I find that the Crown did

assume discretionary control over the administration of s. 31 of the Act and

that this aspect of the test is therefore met.

511

According to the existing jurisprudence, this component of the

fiduciary duty test includes both the nature and extent of the Crown’s

discretion. As described by Binnie J. in Wewaykum (at para. 85):

I do not suggest that the existence of a public law duty necessarily

excludes the creation of a fiduciary relationship. The latter, however,

depends on identification of a cognizable Indian interest, and the

Crown’s undertaking of discretionary control in relation thereto in a

way that invokes responsibility “in the nature of a private law duty”….

512

513

When considering the extent of the discretion, a court must bear in

mind the beneficiaries’ vulnerability to its exercise. In terms of the nature of

the discretion, we have seen that a Crown fiduciary obligation should be “in

the nature of a private law duty.”

A review of the facts, therefore, demonstrates that the Crown

exercised complete control over the s. 31 grants, from the selection of

townships and individual allotments to timing and the process by which

grants were made. The Crown retained control over the entire process,

declining to permit significant participation by the local authorities and

giving the Governor General in Council complete discretion in respect of

such matters.

Page 180

514

515

During oral argument both Canada and Manitoba submitted that

implementation of the provisions of s. 31 of the Act was purely a public duty

which, unlike obligations in the private law context, could not give rise to a

fiduciary duty. See Polchies at para. 74.

Canada argued that in carrying out its obligations under the Act, it was

simply engaged in the classic governmental public duty in balancing various

interests while providing benefits to a designated group. See Fairford First

Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (T.D.) at paras. 61-

63.

516

In a more extensive submission, Manitoba asserted that when the

Crown through Parliament legislates in its executive function, no fiduciary

relationship can exist in the exercise of any administrative details that are

necessary to carry out its statutory mandate. See Ermineskin at para. 49

where Rothstein J., for the court, made it clear that the words of a legislative

enactment can take precedence over any common law fiduciary duty.

Private law concepts are not applicable to public law undertakings. If, as

here, government is simply following the directives of the legislation in

carrying out the distribution of the lands, then the Crown is acting in a

purely administrative capacity, and any common law fiduciary duty that

might have existed is overridden.

517

518

In a public law context, Manitoba says, executive discretion can only

be successfully challenged if there is a finding of bad faith. See A.G. of

Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735.

The appellants agreed that any common law fiduciary duty can be

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truncated by statute. But here the discretion stems from the broad and

general language of s. 31 itself, and Canada had total control over all aspects

of the s. 31 grants. This is not simply a case of following the dictates of a

general statute enacted in the public interest.

519

Considerable assistance comes from two decisions, both of which, by

coincidence, were written by Rothstein J. In Fairford First Nation,

Rothstein J., after referring to Guerin at p. 385 (at para. 61) for the important

distinction, for fiduciary duty purposes, between private law and public law

duties, noted (at para. 63):

… duties that arise from legislative or executive action are public law

duties. Such duties, as Dickson J. has said, typically do not give rise to

a fiduciary relationship. …

520

But Rothstein J. was careful to note (ibid.):

There is no indication they [the Indian Act and the Department of

Citizenship and Immigration Act] would be in the nature of private law

duties such as when Indian land is surrendered. Nor is there any

suggestion the Crown was exercising a discretion or power for or on

behalf of the Indians.

521

522

In Ermineskin, Rothstein J., writing for the court, dealt with the

relationship between legislation and a common law fiduciary duty.

At para. 75, he wrote that, “legislation may limit the discretion and

actions of a fiduciary, whether that fiduciary is the Crown or anyone else.”

However, he also noted (at para. 71) the corollary that a fiduciary duty can

be created by statute: see Guerin at p. 384. After referring to Guerin and

Page 182

Authorson, he concluded that while “Parliament may legislate in ways that

constrain or eliminate the Crown’s fiduciary duties,” the Crown’s obligation

is nonetheless “to act in a way that is consistent with its fiduciary duties as

constrained by valid legislation.” Finally he quoted Guerin at p. 387 where

Dickson J., as he then was, wrote (at para. 76):

… A fiduciary obligation will not, of course, be eliminated by the

imposition of conditions that have the effect of restricting the

fiduciary’s discretion. A failure to adhere to the imposed conditions

will simply itself be a prima facie breach of the obligation.

523

On the facts before us, I fail to see how it can be said, as Canada and

Manitoba have argued, that because Canada was following the dictates of a

constitutional statute cast in broad and unspecific terms there could be no

exercise of discretion of the kind that can result in a fiduciary obligation.

Section 31 imposes an obligation on the Lieutenant Governor to select the

1.4 million acres of land subject to the imprimatur of the Governor General

in Council. By its very terms, the Lieutenant Governor is given, subject to

approval of the Governor General in Council, virtually total discretion with

respect to its implementation.

524

This included, for example, the designation and choice of lands

eligible for s. 31 grants, the use of a lottery for selection of land, the timing

of the various stages of the allotment, together with the insistence that

surveys first be completed, and generally the entire process including the

issuance of scrip after Canada “ran out of land” for s. 31 land grants,

reliance upon the Machar/Ryan report as the basis for the third and final

allotment, the decision to post legal descriptions with the allotments – which

Page 183

the appellants say greatly facilitated sales – and finally, the patent itself. In

contrast to s. 32 (see para. 736 below), s. 31 necessarily leads to “that extra

degree of obligation or special relationship” sufficient to create a fiduciary

duty.

525

526

I do not accept the respondents’ submission that because Canada was

carrying out an executive function pursuant to legislative authority, there

could be no fiduciary obligation “in the nature of a private law duty” to the

beneficiaries under s. 31 of the Act.

In my opinion, the words of s. 31 alone are insufficient to give rise to

a fiduciary duty. Any fiduciary obligation that arose was reflected in, but

not created by, s. 31 (as argued by the appellants). See pp. 348-49 of

Guerin. Contrary to the arguments advanced by Manitoba, finding that a

fiduciary duty existed in the administration of the Act does not require

reading new terms into the statute. The test is whether there is a cognizable

Aboriginal interest combined with Crown discretion in the nature of a

private law duty. The obligations that follow are determined with reference

to the fiduciary standard of conduct and the content of the fiduciary duty.

However, while s. 31 did not create the fiduciary duty, its wording is

doubtless an important factor to consider when assessing the scope and

content of any duty.

527

It is clear that the beneficiaries of s. 31 were subject to the Crown’s

discretion in the process of selecting and distributing grants, just as the

bands in Wewaykum were found to be “… entirely dependent on the Crown

to see the reserve-creation process through to completion” (at para. 89). See

Page 184

also Laroza Estate v. Ontario, [2005] O.T.C. 727 at para. 19 (S.C.J.), and Drady v.

Canada (Minister of Health) (2007), 159 A.C.W.S. (3d) 177 at para. 28

(Ont. S.C.J.). Binnie J. explained further (Wewaykum at para. 91):

… The federal Crown in this case was carrying out various functions

imposed by statute or undertaken pursuant to federal-provincial

agreements. Its mandate was not the disposition of an existing Indian

interest in the subject lands, but the creation of an altogether new

interest in lands to which the Indians made no prior claim by way of

treaty or aboriginal right.

528

529

While the circumstances surrounding s. 31 do not precisely parallel

those described above in Wewaykum, a similar amount of Crown discretion

and control was involved in the tasks, which in both cases included a lengthy

process of designating lands for Aboriginal peoples.

As noted above, vulnerability is relevant to the discretionary aspect of

a fiduciary duty. The vulnerability that is relevant is not, however, that

generally experienced by the parties outside their relationship, but rather the

vulnerability that arises from the aspect of the relationship that is said to give

rise to a fiduciary duty. As Cromwell J. explained in Galambos (at para.

68):

… fiduciary law is more concerned with the position of the parties that

results from the relationship which gives rise to the fiduciary duty than

with the respective positions of the parties before they enter into the

relationship. La Forest J. in Hodgkinson, at p. 406, made this clear by

approving these words of Professor Ernest J. Weinrib: “It cannot be the

sine qua non of a fiduciary obligation that the parties have disparate

bargaining strength. . . . In contrast to notions of conscionability, the

fiduciary relation looks to the relative position of the parties that results

from the agreement rather than the relative position that precedes the

agreement” (“The Fiduciary Obligation” (1975), 25 U.T.L.J. 1, at p. 6).

Thus, while vulnerability in the broad sense resulting from factors

Page 185

external to the relationship is a relevant consideration, a more important

one is the extent to which vulnerability arises from the relationship:

Hodgkinson, at p. 406.

530

The relationship that the Manitoba Métis entered into with the federal

Crown during the creation of the province of Manitoba meant that, although

they were a strong force in the Settlement and had shown their willingness to

take military action to assert what they considered to be their rights, they

ultimately accepted and endorsed Manitoba’s entry into Canada as a

province. While the trial judge found that “… the Métis were not a

vulnerable or unsophisticated people insofar as the representation or

advancement of their interests were concerned” (at para. 641), in the context

of this fiduciary duty analysis their vulnerability arose from the complete

control that Canada retained over land in the new province, and specifically

with respect to all aspects of the s. 31 grants, which it insisted on retaining

despite requests for local control. The Crown undertook, through “the

exercise of statutory powers” (Galambos at para. 77), to distribute lands to

the Métis.

531

In Wewaykum, Binnie J. equated the vulnerability of the bands in the

reserve creation period to that of the settlers in the area, writing that “[t]he

Indians were ‘vulnerable’ to the adverse exercise of the government’s

discretion, but so too were the settlers, and each looked to the Crown for a

fair resolution of their dispute” (at para. 96). The Métis in the new province

of Manitoba were similarly vulnerable.

532

In Blueberry River, McLachlin J., as she then was, wrote (at para. 38):

Page 186

… A person cedes (or more often finds himself in the situation where

someone else has ceded for him) his power over a matter to another

person. The person who has ceded power trusts the person to whom

power is ceded to exercise the power with loyalty and care. This is the

notion at the heart of the fiduciary obligation.

[emphasis added]

533

The Métis were not only vulnerable in the sense described, but they

trusted Canada to act in their best interests. The July 1, 1870 version of the

New Nation reported on the special session of the Legislative Assembly of

Assiniboia held on June 24, 1870, at which the Assembly adopted the Act

and decided to join Confederation. While the Assembly was not comprised

solely of Métis, it was through the Assembly that the Act, including the

promise made in s. 31, was adopted locally. Ritchot addressed the Assembly

as follows:

… As to the result of the mission of your delegates generally, I have

only to say that as the Canadian Government seem really serious, they

have to be believed and we can trust them (cheers). My own

conviction is that both the Canadians and English Government are

anxious to do what they can to treat us well (cheers). I found that our

future Lieut. Governor is looked upon as a real gentleman and one who

will do justice to everybody (cheers). As to the troops, I never said a

word for or against their coming. But the intentions of the Government

in this respect, appear fair enough. They mean well in the premises

(cheers).

[emphasis added]

534

The Assembly voted to cede power to Canada, trusting them to treat

them fairly. Ultimately, Canada was granted complete discretion over the

interests of the beneficiaries of s. 31.

Page 187

III.7.9(g) Standard of Conduct and Content of the Fiduciary Duty

535

One of the issues before the court in this appeal is whether the

appellants have proven that Canada breached any fiduciary obligations in the

course of its administration of s. 31 of the Act. While the standard of

conduct required of a fiduciary is well settled and constant, the content of

individual fiduciary duties depends on the surrounding context. As La

Forest J. observed in M.(K.) v. M.(H.), “the nature of the obligation will vary

depending on the factual context of the relationship in which it arises” (at p.

66).

536

In these reasons the “standard of conduct” refers to a general

description of how a fiduciary is obligated to act. The “content” of a

fiduciary duty encompasses the specific acts that are expected of the

fiduciary as a result of the application of the standard of conduct to the

relevant facts. Additional fiduciary duty content may also be generated by

representations made by the fiduciary.

III.7.9(g)(i) Standard of Conduct

537

The general standard of conduct required of a fiduciary is that of a

person of ordinary prudence handling his own affairs (Ermineskin at para.

131). A fiduciary is also required to act with reference to the beneficiary’s

best interests in fulfilling its fiduciary obligations (Haida Nation at para. 18,

Ermineskin at para. 129). See also Blueberry River at paras. 16-17, 22, 104,

115-16.

538

As Professor Leonard I. Rotman wrote in “Aboriginal Rights: Crown-

Page 188

Native Relations as Fiduciary: Reflections Almost Twenty Years After

Guerin” (2003), 22 Windsor Y.B. Access Just. 363 at p. 17 (QL): “The

fulfilment of fiduciary duties generally requires that fiduciaries act

honourably, with honesty, integrity, selflessness, and the utmost good faith

(uberrima fides) towards the best interests of their beneficiaries.” In this

case, no bad faith on Canada’s part is alleged, but bad faith is not necessary

in order to prove that a fiduciary obligation has been breached.

III.7.9(g)(ii) Role of the Best Interests of the Child

539

The appellants argued that the “best interests of the child” was the

fiduciary standard of conduct by which the Crown’s actions should be

measured. They wrote in their factum that s. 31 “… was treated as a grant to

the 7,000 Métis who were under 21 as of July 15, 1870” (at para. 168) and

that “[t]hese 7,000 children were (to use the language of Haida Nation), the

‘Aboriginal group’ whose best interests were to be observed in the

administration of section 31.” They added (at para. 204):

The Crown, to use the language of McLachlin C.J. in Haida Nation,

had “to act with reference to the Aboriginal group’s best interest.” The

Crown could not claim that it had simply to adjudicate among

competing interests. All along the Crown’s obligation to protect the

best interests of the children continued. …

540

The appellants therefore relied upon the fact that the s. 31 recipients

were primarily minors when the Act was enacted, combined with the “best

interests” standard referred to in Haida Nation, to formulate the “best

interests of the child” standard they propounded. The trial judge concluded

that the word “children” in s. 31 referred to lineage and did not mean infants

Page 189

or minors, which the appellants challenge. It is not necessary to determine

which perspective is correct as there is no doubt that the vast number of

“children,” however defined, were under the age of 21. There is no

authority upon which they rely that says that the “best interests” standard

becomes “best interests of the child” when the beneficiaries are children.

There is also no indication of how this would modify the content of the

standard, if at all.

541

In its factum, Canada wrote (at para. 188):

… there is no over-arching fiduciary responsibility on the part of

government to act in the best interests of children: E.D.G. v. Hammer,

[2003] 2 S.C.R. 459, 2003 SCC 52 at paras. 22-27 …. The only

responsibility is to avoid harmful conduct stemming from disloyalty,

self-interest or abuse of power, and rests in this case with the parents or

guardians of the Métis children and, in the appropriate case, with the

courts.

542

543

As the trial judge concluded that there was no fiduciary relationship

between the parties, he did not address the standard of conduct required of a

fiduciary.

McLachlin C.J.C., writing for the majority in Canadian Foundation

for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4,

[2004] 1 S.C.R. 76, found that s. 43 of the Criminal Code, which provides a

limited defence for parents and teachers charged with assaulting a child, did

not violate any principle of fundamental justice so as to offend s. 7 of the

Charter. While she found that the “best interests of the child” (at para. 7)

was not a principle of fundamental justice, she recognized at para. 9 the

Page 190

significance and pervasiveness of the “best interests of the child” as a legal

principle “consistent with international instruments to which Canada is a

signatory” (per McLachlin C.J.C., A.C. v. Manitoba (Director of Child and

Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 at para. 93).

544

I need not consider the appellants’ argument that a fiduciary

obligation was owed to the beneficiaries of s. 31 as children. While the best

interests of the beneficiary is part of the standard of conduct in Canadian

fiduciary jurisprudence generally, the “best interests of the child” has been

rejected by the Supreme Court of Canada as describing the obligations owed

in situations analogous to the parent-child fiduciary relationship: E.D.G. v.

Hammer, 2003 SCC 52, [2003] 2 S.C.R. 459, and K.L.B. v. British

Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403. In rejecting the best interests

of the child as a general fiduciary obligation to children in K.L.B., the

majority explicitly rejected comparisons to the Crown-Aboriginal fiduciary

relationship and noted the Crown’s positive duties within that relationship.

As will be seen, I find that the Crown did not breach its obligations in the

Crown-Aboriginal sphere in this case. Therefore, reviewing their actions

from the perspective of a fiduciary duty owed to children (if a duty of that

sort existed) would not produce a different result.

III.7.9(g)(iii) It is the Conduct Itself that is to be Measured,

Not the Result, and Not in Hindsight

545

Whether or not a fiduciary obligation has been breached is measured

not by the end result of the fiduciary’s actions, but rather by whether its

conduct has fallen below the applicable standard. As McLachlin C.J.C.

Page 191

wrote in E.D.G. v. Hammer (at para. 24):

… Fiduciary obligations are not obligations to guarantee a certain

outcome for the vulnerable party, regardless of fault. They do not hold

the fiduciary to a certain type of outcome, exposing the fiduciary to

liability whenever the vulnerable party is harmed by one of the

fiduciary’s employees. Rather, they hold the fiduciary to a certain type

of conduct. As Ryan J.A. held in A.(C.) v. C.(J.W.) (1998), 60

B.C.L.R. (3d) 92 (C.A.), at para. 154, “A fiduciary is not a guarantor.”

A fiduciary “does not breach his or her duties by simply failing to

obtain the best result for the beneficiary”.

546

547

548

Similarly, Rothstein J. wrote in Ermineskin that “[t]here is no duty of

a trustee at common law to guarantee against risk of loss to the trust corpus

or that the corpus would increase” (at para. 57). He went on to write that

“[t]he Crown’s conduct cannot be measured in hindsight” (at para. 139).

In assessing whether the Crown had breached its fiduciary obligations

in Wewaykum, Binnie J. wrote that the “assessment of the Crown’s discharge

of its fiduciary obligations … must have regard to the context of the times”

(at para. 97).

Therefore, in assessing whether Canada breached its fiduciary

obligations in this case, regard must be had only to whether Canada

breached the standard by virtue of its actual conduct. This assessment must

not be made in hindsight, but with reference to what was known and

understood at the time.

Page 192

III.7.9(g)(iv) Role of Representations Made by the Fiduciary

549

As noted above, the content of a fiduciary duty is largely determined

by applying the standard of conduct to a given fact-situation. The content of

the fiduciary duty can also be informed by representations made by the

fiduciary, where those representations were relied upon by the beneficiary:

Guerin, at paras. 110-112.

550

The appellants submit that speeches made by various politicians in the

House of Commons regarding the Métis land situation in Manitoba

constitute binding representations, which give rise to corresponding

fiduciary duties to fulfill such promises. While, like the trial judge, I

question whether these types of political speeches could give rise to

enforceable fiduciary obligations, it is clear that the appellants can point to

no findings of fact by the trial judge to demonstrate reliance on any such

representations. Whether or not there were any representations capable of

giving rise to fiduciary obligations on the part of the Crown, this lack of

reliance upon them is determinative. Without proof of reliance, these

alleged representations cannot expand the content of the Crown’s fiduciary

duty in the circumstances.

551

The terms of an agreement between the fiduciary and the beneficiary

may also be relevant to this analysis. For instance, the language of a treaty

between the band and the Crown was found in Whitefish to assist in

establishing the content of the fiduciary duty at issue in that case. However,

the resolution of the case at bar does not turn solely upon the interpretation

of s. 31. Instead, the common law fiduciary obligation test must be applied.

Page 193

Thus, interpretive principles applicable to Aboriginal rights and treaties,

such as those relied upon by the trial judge, are not as relevant to this

analysis as they would be, for instance, to a decision regarding Aboriginal

title.

III.7.9(g)(v) Role of Métis Hardship

552

The determination of whether Canada has breached its fiduciary

obligations therefore has a specific and narrow focus. The question is not

whether the Métis people of Red River met with hardship in the decades

following Manitoba’s entry into Confederation, although they undeniably

did. The question is also not whether any such hardship resulted from

actions taken by the federal Crown with respect to its fiduciary obligations

to the Métis. Rather, the question involves assessing the Crown’s conduct

with respect to the applicable standard.

III.7.9(g)(vi) Recognizing the Crown’s Unique Role as a Fiduciary

553

Furthermore, the task of assessing whether the Crown has breached its

fiduciary obligations attracts special considerations given its unique role. As

Rothstein J. wrote in Ermineskin (at para. 130):

As Binnie J. stated in Wewaykum Indian Band v. Canada, 2002 SCC

79, [2002] 4 S.C.R. 245, at para. 96, “[t]he Crown can be no ordinary

fiduciary; it wears many hats and represents many interests, some of

which cannot help but be conflicting”. In the present case, the Crown

must consider not only the interests of the bands but also the interests

of other Canadians when it sets the interest rate paid to the bands.

554

McLachlin C.J.C. wrote of the Crown’s special role as a fiduciary in

Page 194

Haida Nation, explaining that “[t]he content of the fiduciary duty may vary

to take into account the Crown’s other, broader obligations” (at para. 18).

See also Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3

S.C.R. 746 at paras. 51-53. When assessing the Crown’s conduct as a

fiduciary, it is not only other beneficiaries of fiduciary obligations, but also

others to whom the Crown owes regular public law duties whose needs must

be balanced against those to whom fiduciary duties are owed.

555

The Crown, being obliged to consider the needs of Canadians in

general, and of the nation itself, is therefore permitted to act upon those

obligations without breaching its fiduciary duties. This is not to say that the

Crown may “merely by invoking competing interests, shirk its fiduciary

duty” (Wewaykum at para. 104). However, the Crown’s actions as a

fiduciary must be assessed in light of the many competing interests it must

balance. To put it another way, there is a single standard of conduct, the

application of which produces differing fiduciary duty content depending on

the circumstances, including consideration of the Crown’s entitlement to

consider the needs of others to whom it owes competing duties.

III.7.9(g)(vii) Summary of Guiding Principles

556

In sum, the fiduciary standard of conduct, which mandates that the

fiduciary act with reference to the best interests of the beneficiary and as a

reasonable person would in handling his own affairs, is a high one. But the

Crown is no ordinary fiduciary, and while it may not shirk its fiduciary

obligations by simply citing the competing interests that it serves, it is

entitled to consider those competing interests even in actions that affect

Page 195

those to whom it owes fiduciary obligations. The question of whether the

standard has been breached must also be considered with reference to the

conduct itself, and not the end result, mindful of the context of the times, and

not in hindsight.

557

In this particular case, much time has passed since the events in

question and as a result there has been a significant reduction in the

availability of evidence (as noted by the trial judge at para. 428 of his

reasons). Had more evidence been available, it may have assisted in the

presentation of the case. As we have seen, the burden is on the appellants to

show that Canada breached its fiduciary obligations. The appellants must

therefore prove that, even after taking into account any other legitimate

interests that Canada was entitled to consider, Canada acted below the

standard of conduct expected of it vis-à-vis its fiduciary beneficiaries.

Given the gaps in the available evidence and the challenges that Canada was

faced with in expanding the country, the appellants’ task, as we have seen, is

a difficult one indeed.

III.7.9(g)(viii) Inadvertence or Ineptitude

558

The appellants submit that government ineptitude is sufficient to

breach the fiduciary standard. In their factum, the appellants wrote (at para.

158):

In Wewaykum Binnie J. held at para. 80 that the law of fiduciary

obligation, as it applies to Aboriginal peoples, is intended to protect

them as “Aboriginal peoples vulnerable to the risks of governmental

misconduct or ineptitude.” See also McLachlin J. in Blueberry, at p.

27, indicating, at para. 104 that inadvertence is sufficient.

Page 196

559

In Blueberry River, the standard of conduct applied was the

reasonable person and best interests tests. However, the type of conduct that

breached that standard was described as “inadvertence” (see paras. 18, 28,

94). The breach was found not because a fiduciary standard of “advertence”

was applied, but because a reasonable person in the circumstances would not

have transferred the mineral rights at issue in that case inadvertently.

560

In Wewaykum, the term “ineptitude” was used in the course of a

discussion about the rationale for the general fiduciary relationship between

the Crown and Aboriginal peoples, and not as an instance where a specific

fiduciary duty arose within that relationship. It is clear from a reading of

Wewaykum as a whole (and specifically para. 86) that the content of

fiduciary obligations vary with the context, and that this reference to

ineptitude was not a general statement dictating the standard that a fiduciary

must meet.

561

Therefore, inadvertent or inept actions have the potential to constitute

a breach of fiduciary duty, but only if such actions are below the standard of

conduct required of the fiduciary in the circumstances.

III.7.9(g)(ix) Was the Standard Breached?

562

Given the standard of conduct and the other relevant considerations

outlined above, it must be determined whether Canada breached its fiduciary

obligations to the Métis in its administration of the Act.

Page 197

563

The appellants argue that Canada failed to act in the best interests of

the s. 31 recipients in the following five ways:

• All Métis children were to have received grants, but Canada failed

to grant land to 993 children.

• The grants should have been received as soon as possible, but

Canada delayed the process of allotting and granting the s. 31

lands.

• The grants should have been selected and divided for the benefit of

the families according to the usages and customs of the country,

but Canada proceeded by way of lottery.

• No sales of s. 31 interests should have been permitted before grant,

but such sales were in fact permitted.

• No sales of s. 31 interests should have been permitted before the

age of majority, but such sales were nevertheless permitted.

III.7.9(g)(x) Trial Judge’s Findings

564

The trial judge made critical findings with respect to the appellants’

five allegations of breaches of fiduciary duty. I highlight these findings

now, followed by the appellants’ and respondents’ submissions.

Selection of Land

565

Given Canada’s other responsibilities in the new province, such as

under s. 32 of the Act, building a national railway to the benefit of all

Canadians, and Canada’s need to balance its various obligations, the trial

Page 198

judge concluded that granting the Métis first choice of s. 31 land was

impossible, though they were given significant input into the selection of

their land, largely as a result of Archibald’s endeavours.

566

567

568

The trial judge held that the Order in Council of May 26, 1871,

which allowed immigrants to occupy unsurveyed land, while clearly a

source of divisiveness and unrest, had only a minimal and temporary effect

on the s. 31 grants. Nor was there any significant loss to the Métis land

interests from the fact that their selections were not wholly accepted.

The appellants’ arguments that the comparative maps highlight the

Crown’s failure to discharge its obligations to the Métis children were not

accepted. While the trial judge did not agree with Dr. Ens’ assertion that

most parishes requested more land than warranted relative to the overall

grant, he found that the differences were not significant.

Overall, the trial judge wrote, the evidence demonstrated a

willingness on Canada’s part to try to accommodate the wishes of the

parishes, though not a perfect match. Indeed, there was little, if any,

evidence of a complaint from people at the time, nor facts to support a claim

of bad faith on the part of Canada.

The Allotment of the Land, the Lottery, and the Providing of Scrip

569

The trial judge rejected the appellants’ assertion that the use of a

random lottery was contrary to the agreement reached between the delegates

and Cartier for selection of land in family blocks on the basis that there was

no such agreement. There certainly was not unanimity between the French

Page 199

Métis and the English Métis with respect to the selection of land.

570

571

While the lottery was indeed random, it was not random throughout

the entire province, as allotments were done on a parish-by-parish basis.

The trial judge was of the view that it was difficult to see “how the

grant could have been administered other than by a random lottery without

creating unfairness and significant divisiveness within each parish” (at para.

1006). The random lottery gave each child in the parish an equal chance.

There were few, if any, complaints.

572

573

Practically speaking, given the size of the individual grants (240

acres) and that of the average family (four to five children), it was difficult,

the trial judge wrote, to see how the children’s grants could be contiguous to

their families’ existing holdings.

Concerning the issuance of 993 supplementary scrips in lieu of land,

Codd was clearly wrong in his opinion letter, which underestimated the

number of eligible Métis children by close to one thousand. But that letter

“evidences, but for hindsight, a reasoned consideration of the problem and a

reasoned explanation for the number at which he arrived” (at para. 1018).

Codd’s recommendation was “thorough and reasoned” (at para. 874). The

trial judge concluded that the exercise of discretion by Codd and Dennis

permitted error in the absence of evidence of bad faith or sharp conduct, of

which there was none.

574

Concerning the particular situations of the 993 recipients, there was

evidence pertaining to only three persons who received supplementary scrip,

Page 200

rather than a 240-acre land grant. The trial judge was obviously troubled by

the lack of specific evidence about the particular situation of the claimants.

This gave rise to evidentiary concerns as to what weight could be attached to

the fact that 993 supplementary scrips were issued (see para. 1028). There

were few, if any, complaints.

Sales Before Patent or Majority

575

While there was no obligation under the Act for Canada to hold the

lands in trust for the children or to be their guardians, the trial judge held

that “in fact the evidence in my view discloses that to the extent it could,

Canada did just that” (at para. 1037). For example, Canada insisted on

issuing s. 31 patents only to the actual allottees.

576

577

In response to the appellants’ argument that Canada’s duty was to

ensure there was absolutely no speculation, the trial judge held that it would

have been impossible to do so.

There was no doubt that sales occurred prior to patent, some with

speculators for improvident prices (and some grossly so). There were

undoubted abuses. But according to Flanagan, the trial judge wrote, the

many judicial sales pursuant to Manitoba’s legislation made up less than ten

percent of all children’s allotments. As we shall see, the trial judge’s

reference to judicial sales constituting less than ten percent of all sales of

children’s allotments was a mistake.

578

As well, there were sales at market prices; all sales were not made to,

or as a result of pressure by, speculators.

Page 201

Delay

579

580

581

582

The trial judge described this quite correctly as the appellants’

“overarching complaint” (at para. 1052). It was difficult to understand, he

wrote, why there were so many delays and why it took so long for the

selection and allotment to be completed (see para. 1053). As an example,

the final allotments started in October 1876 and were not completed until

1880.

On the other hand, it is necessary, the trial judge noted, to take into

account the difficulties on the ground in Manitoba, which included that a

fledgling province had just been born which was remote from Ottawa, the

Lieutenant Governor and the Manitoba Legislature had competing interests

to address, many of the Métis lived a somewhat nomadic life, and errors did

occur or issues arose which justified changes in the size of the land grant.

Section 31 lands were largely concentrated around the settlement belt

and were not issued “all over Manitoba” (at para. 1057) as the appellants

asserted. While the evidence disclosed that many Métis sold their land –

some for modest amounts and some at market value – many others kept their

land and acquired more. While there were certainly sales at improvident

prices, there was considerable evidence of other sales at market value.

The trial judge expressed a serious concern in assessing the delay that

occurred between 1870 and 1885 “through 2007 glasses. It is an extremely

difficult thing to do reliably” he said (at para. 1056), given the uncertainties

about what was being sold and whether the price was a fair one. His

conclusion ultimately was “the Métis who were full citizens of Manitoba at

Page 202

the time made individual choices and there is, in my view, no basis in law, in

the circumstances here, for any finding of liability on the part of Canada

respecting the section 31 lands” (at para. 1058).

583

In his concluding remarks, the trial judge summarized, “[the plaintiffs

seek] relief that is in essence of a collective nature, but is underpinned by a

factual reality that is individual” (at para. 1197).

III.7.9(g)(xi) Appellants’ Position

Lottery

584

Lotteries were not mentioned in the Order in Council of April 25,

1871, which simply provided for allocation by a random draw. The

appellants argue it was assumed by the delegates (at least up until the

evening of May 2, 1870) that the Manitoba Legislature or a committee of

local men would distribute the land. But this did not happen and grants

ended up being scattered at “great and unworkable distance from one

another” (at para. 224 of the appellants’ factum). The trial judge erred when

he concluded that the lottery was the only fair way to divide the land since it

worked against the children acquiring lots in family groupings. The trial

judge’s conclusion ignores the fact that Ritchot reminded Cartier and

Macdonald well after May 9, 1870, that they had promised to appoint a local

committee, which they failed to do.

585

There was no evidence adduced that the scheme as envisaged by the

Métis was impractical, nor that Canada believed it to be so. The fact there

were few complaints is irrelevant.

Page 203

586

The trial judge’s interpretation of the postscript to Cartier’s letter of

May 23, 1870, was wrong, the appellants say, as he overlooked the phrase

“of a nature to meet the wishes of the half-breed residents.”

Delay

a)

Selection of the Lands

587

The Order in Council of May 26, 1871, the appellants argue,

preferred new settlers over s. 31 grantees, and the instructions to Archibald

to wait for surveys to be completed before selections could be commenced,

was contrary to the April 25, 1871 Order in Council which, unlike

homesteading and preemption rights, said nothing about surveys concerning

s. 31 lands. This gave new settlers arriving in Manitoba an unfair advantage.

It was not until April 15, 1872, that an Order in Council confirmed that

surveys were sufficiently far advanced to enable selection to begin.

Selection only began on February 22, 1873, despite the joint address from

Manitoba on February 8, 1872, which called for a prompt distribution of the

land.

b) Allotment

588

The retraction of the initial allotment approved by the April 3, 1873

Order in Council was caused by the necessary removal of adults from the s.

31 grants. Riel, Ritchot and others took the position from the beginning that

it was wrong to include the adults. The appellants say this resulted in delay,

and an enlargement of the grants to 190 acres from 140, assuming there to be

approximately 7,000 eligible Métis children.

589

In the meantime, Manitoba had enacted legislation on March 8, 1873,

Page 204

which permitted a vendor to repudiate sales of allotments. Canada did not

disallow the Act, which came into force in 1874.

590

591

The second allotment started August 16, 1873, limited to the 7,000

children. It was completed by 1876, and following the Machar/Ryan report

patents were to issue “forthwith,” according to the April 26, 1875 Order in

Council.

Then Canada decided, the appellants emphasize, there was a need to

recalculate the numbers. Codd’s recommendation, following the report of

the Machar/Ryan Commission, to reduce the estimated number of eligible

children to 5,833 was accepted despite the fact there was no satisfactory

explanation for the significant discrepancies with the 1870 census. This

decision resulted in the cancellation of the second allotment and an increase

in the size of the individual grants to 240 acres. The third allotment did not

start until October 30, 1876.

592

593

Even after the delay caused by Codd’s error which necessitated the

third allotment process, there was a further long delay in the issuance of the

patents beyond this initial seven years. None of this could possibly be in the

best interests of the Métis children, argue the appellants.

Understandably, the appellants do not take issue with the trial judge’s

findings that the selection, allotment and ultimate grant of patents was not

done in a timely manner. But they say the trial judge erred in ignoring the

evidence of what could have been done because of his concern about

assessing historical evidence “through 2007 glasses” (at para. 1056). The

trial judge relied instead on his personal knowledge of current difficulties

Page 205

with land development, which was either improper, or judicial speculation.

594

The trial judge held that the s. 31 land grant was simply a recognition

of the Métis’ contribution to the Settlement and intended to give the

families, through their children, a head start. Even if this view is accepted,

there was no head start, the appellants argue, until a decade after Manitoba

became a province.

993 Children Received Scrip and Not Land

Canada underestimated the number of allottees contrary to its own

595

best information based on the 1870 census. The appellants assert that the

trial judge erred in his conclusion that Codd’s major mistake in

underestimating the number of eligible Métis children was a “reasoned

consideration of the problem” (at para. 1018). They say it was not in the

best interests of 993 children to give them scrip, with its inherent dangers,

instead of the land to which they were entitled. It was clearly wrong for the

trial judge to base his analysis on only three out of 993 cases. His concerns

about having only three of 993 “histories” before him was both speculative

and irrelevant.

596

Section 33 of the Act, used by the judge as a “make weight,” only

relates to grants of land and did not authorize the granting of scrip.

Sales Before Grant and Before Attaining the Age of Majority

597

Archibald was wrong in his December 27, 1870 letter in

recommending that all Métis, including heads of families, should participate

in the s. 31 grants. He further erred in recommending against a “clog”

Page 206

(inalienability) on transfers, which he knew full well was against the wishes

of the French Métis. Canada had a competing perspective that locking up

the land would be detrimental to the new province. This was a breach of

fiduciary duty, the appellants argue, as it was not in the best interests of the

Métis children. (See Wewaykum at para. 104.)

598

599

It is suggested that Archibald, in his report of December 27, 1870,

proceeded on the assumption that the land would be held in trust for the

children until they reached the age of majority.

The crucial April 25, 1871 Order in Council, though not expressly

prohibiting alienation of s. 31 lands (as it did for homestead and preemption

lands), should be taken as implying that there could be no dealings with the

s. 31 lands until after the grant (which is interpreted by the appellants as not

occurring until after patent). Canada’s policy of settlement not sale could

only succeed if the children actually received the grants.

600

The trial judge was wrong in failing to accept the appellants’

argument that Parliament’s intention to act as guardians of the land for the

children could only be accomplished by prohibiting all sales before they

reached the age of majority.

601

The appellants say that when the facts of the lottery, the failure to

provide all children with grants, and the delays are looked at collectively,

this amounts not merely to benign neglect but deliberate ineptitude of such

seriousness as to constitute unconscionable behaviour. Had Canada

proceeded with its intention in 1872 to redo the 1870 census, it is arguable,

the appellants assert, that this dilemma could have been avoided.

Page 207

602

With respect to the trial judge’s findings, no fault is found with the

trial judge’s conclusion that there was “no doubt that some sales were made

to speculators and for improvident prices” (at para. 1046), but the appellants

say he erred in minimizing the number of sales. Flanagan got it wrong when

he concluded there were only a small number of sales by children by way of

judicial sales. His estimate that less than ten percent of children’s allotments

suffered this fate related only to sales by children under 18, whereas the

evidence from the inquiry involving Chief Justice Wood and other members

of the court dealt with sales by children both under and over 18.

603

604

Reliance is placed on Dr. Ens’ thesis, “Métis Lands in Manitoba”

(Man. Historical Society, No. 5, 1983), where he concluded that the delays

with respect to the s. 31 grants, if not deliberate, were caused by

“irresponsible neglect.”

The trial judge asked himself the wrong question, namely, whether

the Métis were different from Indians, which of course they are, being of

mixed blood. The real question, for purposes relating to the “extinguishment

of Indian title,” was whether they were considered to be “Indians” under s.

91(24) of the Constitution Act, 1867. In other words, were the Métis

considered to be Indians in the particular context of s. 31? To this question,

the appellants say, there could only be one answer.

605

There was no evidence to establish that if the Crown had acted in a

timely way the Métis-owned lands grouped according to family would not

have been possible, or more generally, that the scheme as envisaged by the

Métis was impractical. It was not up to the appellants to show that their

Page 208

concept of s. 31 would have worked. See Hodgkinson and Whitefish.

606

607

The appellants argue that the trial judge was wrong in failing to draw

an adverse inference from the long, unexplained delay in implementing the

provisions of s. 31, and equally wrong to conclude that Canada did not take

control of the land as a result of s. 31.

The trial judge was also wrong when he found that the two parallel

provincial Acts of February 1878, i.e. The Infants Act and The Lands of

Half-breed Children Act, were necessary to protect the Métis. In fact, they

reduced the Métis’ common law protection and benefitted purchasers and

speculators.

Canada Allowed Manitoba to Enact Unconstitutional Legislation

608

Until the lands were granted, any dealing with s. 31 lands was

exclusively within federal jurisdiction. The trial judge erred in accepting

Manitoba’s argument that the purpose of the Order in Council of March 23,

1876 – which stated that Canada would not recognize assignments – was to

avoid the need for Canada to set up the necessary administrative machinery

for the land titles records. The evidence is overwhelming that the effect of

Manitoba’s legislation was to enable sales before patent, including by

minors, to aid speculators. Canada is responsible, the appellants say, for

allowing sales before patent, and Manitoba had no authority to enact

legislation with respect to s. 31 lands.

609

Finally, the trial judge was wrong to conclude that there was serious

evidentiary incompleteness and gaps in the documentary records. Neither of

Page 209

Canada’s two experts testified that there were gaps. The trial judge did find

that “while there are nonetheless gaps in the documentary record, generally

speaking, that which the plaintiffs assert as regards the documentary record

is correct” (at para. 458). Having found that the allotment and grant process

was not done on a timely basis, he was wrong to decide that in order to

understand the social context, culture and background to the legislation that

oral evidence was “if not essential, extremely helpful” (at para. 428), when

considering the constitutionality of legislation. Central to the appellants’

argument is that the documentary record itself is more than sufficient to

demonstrate Canada’s unconscionable neglect and delay.

III.7.9(g)(xii) Canada’s Position With Respect to the “Breach” Issues

Section 31 Selections

610

611

Canada’s first point is that the Crown is no ordinary fiduciary and

must balance other legitimate competing interests even when dealing with

those to whom they owe fiduciary obligations.

Canada argues that with respect to the modest delay in commencing

the allotment process, it was practical to await the completion of surveys to

properly identify the selected tracts and to be able to publish precisely the

legal descriptions.

612

The Order in Council of May 26, 1871, which allowed immigrants to

occupy unsurveyed lands, was necessary since new settlers were already on

their way; it ceased to operate with respect to lands selected for the s. 31

Page 210

grants by virtue of the Order in Council of April 15, 1872. The application

of the May 26^thOrder in Council was therefore short lived.

Allotment of Section 31 Lands to Individuals

613

614

A critical finding made by the trial judge was that there would have

been feasibility issues in trying to manage the grant on the basis of family

blocks. For example, trying to put numerous 240-acre allotments contiguous

to the existing narrow river lots would simply not have worked.

Codd provided a rationale for the numbers which caused the

cancellation of the April 26, 1875 Order in Council (requiring patents to

issue “forthwith”.) While Codd’s estimate was clearly wrong, the trial judge

correctly concluded that it was “reasonable” in the circumstances, and not

made in bad faith.

615

While the trial judge agreed it was difficult to explain why the

allotment process took so long, he was entirely right in not viewing the

situation “through 2007 glasses.”

Patents of Section 31 Lands

616

617

Three arguments made by the appellants are dealt with collectively

by Canada: firstly, it took too long; secondly, children were permitted to sell

prior to patent and prior to the age of majority; and lastly, that 993 children

were left out.

Relatively little delay was experienced by some parishes; pre-patent

occupation was entirely consistent with petitions from the provincial

Page 211

Legislature.

618

With respect to the 993 cases of scrip, the appellants had the

evidentiary burden and simply failed to make out their case. There was little

or no opposition at the time to the granting of scrip. The fact that the trial

judge only had three examples to deal with before him is explained by the

fact that that was all the appellants chose to present.

619

620

The appellants’ argument that the s. 31 grants should have been

distributed on the basis of the 1870 census is simply wrong. The census was

generally recognized as not being a reliable source for allotment purposes

and this was the reason for the Machar/Ryan Commission in 1875-76.

In conclusion, Canada argues that “the practical effect of the

plaintiffs’ argument is that Canada took too long but in the end gave too

much.” The Métis children received not only 1.44 million acres, but scrip in

the amount of $240 was also issued to 993 grantees.

III.7.9(g)(xiii)

No Breaches of Fiduciary Duty Were Proven

621

The trial judge found that no fiduciary obligation was owed to the

appellants. Therefore, he did not consider whether the Crown breached the

fiduciary standard of conduct. He did, however, make extensive findings of

fact both generally and with respect to s. 31 itself. Those findings are also

relevant to the fiduciary standard of conduct. In the absence of palpable and

overriding error, the trial judge’s findings, to the extent they are relevant,

must be incorporated into the analysis of whether any fiduciary duty that

may have existed was breached.

Page 212

Lottery

622

The trial judge found that the use of a random lottery was not

unreasonable. There is ample support in the evidence for this conclusion.

Firstly, there was no agreement – as the trial judge clearly found – that the

allotments would be made in family groupings, nor any suggestion that the

Métis desired a land base in the future. Secondly, there was no consensus

between the French Métis and the English Métis with respect to the

attachment of conditions to the grants. Thirdly, a critical finding made by

the trial judge, supported by Flanagan, is that there were serious physical

limitations in endeavouring to manage the grant on the basis of family

blocks (see Flanagan “Historical Evidence” at p. 9). Trying to put 240-acre

allotments contiguous to narrow river lots would have been very difficult at

best. Furthermore, with the average quantity of land allocated under s. 31

for each family being about one thousand acres, resettling as a group was a

virtual impossibility. Lastly, there is only one proposal in evidence

inconsistent with the lottery system, which came from the provincial

Legislature on April 28, 1871, which, as we have seen (para. 88), urged that

the location of the s. 31 lands be optional to the grantees; this was an

impractical suggestion at best. The trial judge also found that Archibald

attempted to accommodate the Métis’ wishes as best he could.

623

As the trial judge explained, the lottery was random on a parish-by-

parish basis, not at large. His conclusion that it would have been difficult to

utilize another method of selection “without creating unfairness and

significant divisiveness within each parish” (at para. 1006) is consistent with

the trial record.

Page 213

624

As for Cartier’s letter of May 23, 1870, the meaning put on it by the

trial judge was arguably not the only one available to him. The appellants

state that the postscript amounts to nothing less than a virtual guarantee that

the Métis would be able to pick the lands as they wished. But what I take to

be the trial judge’s interpretation, namely, that it was directed to the essential

fairness of the process for all recipients, is a reasonable one and I see no

justification for overturning his finding.

Scrip and Land

625

The trial judge concluded that s. 33 of the Act enabled Canada to

provide scrip instead of land. With respect, I cannot agree with that

conclusion. The plain wording of the section, which refers to “settle and

appoint the mode and form of Grants of Land from the Crown, and any

Order in Council for that purpose” cannot provide the authority to substitute

scrip for land.

626

627

But this is not what Canada did. In fact, what occurred was that

Canada provided in 993 instances scrip in the amount of $240 in addition to

the 1.4 million acres granted to other s. 31 grantees.

Was this a breach of fiduciary duty? Was there a duty on Canada’s

part to provide each child eligible for a s. 31 grant with their precise

mathematical share of the 1.4 million acres? I do not think that such an

onerous responsibility can be read into s. 31, which in essence provides for a

grant of 1.4 million acres “for the benefit of the families of the half-breed

residents” to be divided among their children. Clearly, if there had been a

shortfall, that is to say had something less than 1.4 million acres been

Page 214

granted, there would have been cause to complain. But the Métis children as

a whole did receive 1.4 million acres – in fact, slightly in excess of that

amount.

628

This allegation of breach of fiduciary obligation is centred on a

certain result which is not in dispute, namely, that 993 children received

scrip instead of land. Yet the question whether a fiduciary obligation has

been breached is not determined by its result, but by whether the fiduciary’s

conduct breached the applicable standard. See E.D.G. at para. 24. It was the

adoption of Codd’s recommendation that led to these beneficiaries not

receiving land. Although it was erroneous, the trial judge, as we have seen,

considered Codd’s decision to be reasonable and thorough, with a “reasoned

explanation for the number” (at para. 1018). These findings indicate there

was no breach of the fiduciary standard. The position taken by the

appellants, that the 1870 census was reliable and accurate, is not supported

by the weight of evidence notwithstanding Macdonald’s comments to the

contrary in his 1885 speech in Parliament. While in hindsight a different

number should have been chosen, that is not the criterion to measure the

Crown’s conduct as a fiduciary. Ermineskin at para. 139.

629

630

The appellants are making a collective claim for alleged breaches

relating to the rights of individuals. As a collective, the Métis children got

more than they were owed through s. 31 grants plus an additional 993

beneficiaries who did not receive land, but received scrip.

In all of the circumstances, I conclude that Canada did not breach its

fiduciary obligations when it provided 993 eligible beneficiaries under s. 31

Page 215

of the Act with scrip. The appellants (in oral argument) characterized

Codd’s miscalculation as the most egregious example of error leading to

delay. But the trial judge’s conclusion that there was no bad faith or sharp

conduct on the part of Codd or Dennis, neither of whom he found were

motivated by mischief or malice, is amply supported by the facts before him.

The evidence falls far short of justifying the conclusion that Canada was in

breach of a fiduciary obligation to the s. 31 beneficiaries, or a finding of

unconscionable behaviour, as urged by the appellants.

Sales Before Grant and Before Age of Majority

631

As for sales before grant and sales before attaining the age of

majority, it is difficult to quarrel with the trial judge’s sense that, practically

speaking, next to nothing could have been done to prevent sales of and

speculation in s. 31 lands in the absence of an absolute prohibition against

sales of any kind. Would it have been in the “best interests” of the Métis to

impose such a prohibition?

632

The facts are that there was no unanimity between the French and

English Métis regarding what was in the best interests of their families and

communities with respect to the s. 31 land grants. The English Métis were

generally more interested in dealing with the land as they saw fit. The

French-speaking Métis, or at least their religious leaders, were more

interested in preserving the linguistic and religious traditions of that

community. In any event, the trial judge made a finding well supported by

the evidence that the Métis generally did not want the land encompassed

within the s. 31 grants to be inalienable or to have their rights to buy and sell

Page 216

their land restricted. As we have seen, the Métis of the Red River

Settlement in 1870 considered themselves to be individuals entitled to all

rights enjoyed by all non-Indian inhabitants of the Settlement, including the

right to buy and sell their own property.

633

Furthermore, from a practical sense, 1.4 million acres of land was an

enormous quantity of land, with the average Métis family receiving

approximately a thousand acres. The fact of the matter is that we know next

to nothing with respect to the financial needs of the beneficiaries of the s. 31

grants or their families. It is likely that the size of the grant (on a family

basis) was well in excess of the requirements of most Métis families, and it

should not be forgotten that even as late as the early 1870s many Métis were

away in what we now refer to as Saskatchewan and Alberta for the buffalo

hunt.

634

635

It must be kept in mind that the Crown, unique among fiduciaries,

was entitled to take into account its other public responsibilities, not the least

of which was to establish sovereignty in the new and growing province.

While some French-speaking Catholic Métis wished that the s. 31

land should be “tied up” for a period of time, the interests of the broader

community also needed to be taken into account. It was recognized that

there would be a rapid influx of settlers.

636

In his letter of December 27, 1870, Archibald considered at length

whether s. 31 lands should be locked up. He recommended strongly against

this on the basis that doing so would exclude such land “from the

improvements going on in localities where land is unfettered” and on the

Page 217

basis that “the whole tendency of Modern Legislation” was to abolish

“Estates Tail.” Obviously, Canada accepted Archibald’s recommendation.

The appellants counter that Archibald, in any event, assumed that the

children’s grants would be held to the age of majority. This view is not

consistent with the evidence accepted by the trial judge. It cannot be said

that there was not a fair balancing of the competing future interests.

637

Echoing the concerns expressed by the trial judge about making

assessments of what he called the facts “on the ground” through “2007

glasses,” how is it possible to say, given the state of the evidence and the

trial judge’s findings of fact, that it was in the “best interests of the Métis

children” to prevent alienation of the land or otherwise prohibit sales before

the age of majority? The weight of evidence does not justify the conclusion

that it was in the best interests of the Métis children for sales before age of

majority to be absolutely prohibited or that the land be made inalienable.

638

Acting in the best interests of the Métis did not necessarily mean

keeping decision-making out of their hands. It is true that many of the Métis

left Manitoba as the 1870s wore on and that the influx of new settlers meant

that over time, they became a minority. But there is no doubt that prior to

the enactment of the Act, the Métis were enfranchised citizens who were full

participants in the economic and political life of Assiniboia. It cannot be

assumed that totally restricting the options of individual Métis with respect

to selling their s. 31 grants, for example by creating a Métis land base, would

necessarily have been in their best interests.

639

At trial and before this court, the appellants placed great reliance on

Page 218

an article written by Dr. Ens in 1982, when he was a Masters student,

entitled “Métis Lands in Manitoba.” In it, as we have seen, he castigated

Manitoba’s legislative intentions and Canada’s “dispossession of the Métis

land” which he characterized as – if not an act of conscious design –

“irresponsible neglect.” The trial judge obviously gave no weight to this

report, and in my opinion rightly so since Dr. Ens in his testimony at trial

disavowed the report as it was based on earlier and discredited research

prepared for the appellants.

640

The appellants are critical of the implementation of the foundational

Order in Council of April 25, 1871. It is argued that since the Order in

Council referred only to the requirement for surveys for preemption and

homestead rights, but not s. 31 grants, Canada was not justified in holding

up the allotments until the s. 31 sectional surveys were completed. In my

opinion, this argument defies common sense; simply stated, the evidence

makes it clear that selection of the 1.4 million acres, all of which Canada

was obliged to grant, would have been unworkable in the absence of a

survey.

641

Section 7 of the Order in Council provides that recorded claims

where the claimant died before the age of 18 were deemed to be real estate.

This should lead to the conclusion, the appellants say, that all other claims

and interests in land were not real estate. This cannot be correct. Its

purpose, just as the Order in Council says, was to enable such claims to be

treated as real estate – as opposed to personalty – for inheritance purposes

only.

Page 219

642

Finally, reference is made to s. 3, which reads as follows:

No conditions of settlement shall be imposed in grants made to half-

breeds in pursuance of the provisions of the Act referred to, and there

shall be no other restrictions as to their power of dealing with their

lands when granted than those which the laws of Manitoba may

prescribe.

[emphasis added]

643

The appellants argue that as a result of the wording of s. 3 of the

April 25, 1871 Order in Council, Manitoba had no jurisdiction with respect

to s. 31 lands until after the grants were issued, nor were the Métis children

able to dispose of the land. In oral argument, it was stated that a grant, being

the act of conveying property, could take place only after receipt of the

patent and its recording in the Dominion Lands Office.

644

645

The word “grants” appears frequently in ss. 31 and 32 of the Act, in

much of the relevant provincial legislation, as well as in many Orders in

Council.

For example, in s. 32 of the Act reference is made to “grants” from

the HBC in subss. (1) and (2). But there is no suggestion that a patent was

ever received. Similarly, in the Order in Council of January 27, 1873, the

statement is made that Canada “has sole power … to regulate the

distribution of the grant to the Half-breeds individually and the issue of

Patents therefor” (emphasis added). This is an indication that the issuance of

the patent did not precede the grant.

646

It is also clear from the evidence that Canada at no time raised any

Page 220

objection to Manitoba’s legislation nor does counsel for Canada now argue

that Manitoba’s legislation was ultra vires.

647

648

649

Jeffrey S. Murray, in his 2007 article “Land Grants,” Library and

Archives Canada, describes a patent as the instrument used to convey title to

granted land. A land patent from the Crown was the instrument used to

convey title to the land. Land grant on the other hand is a “general term

referring to the Crown’s transfer of public lands to a subordinate

government, a corporation or an individual.”

In my opinion, the word “grant” in s. 3 of the April 25, 1871 Order in

Council, and indeed in most other instances, was not used in the sense of a

formal legal instrument, such as a transfer of property by deed or other

document that conveyed title – this was the role of the patent. Rather, the

word “grant” was used in its more common sense, namely, to bestow or

transfer the interest in land to the s. 31 beneficiary.

Finally, it should not be overlooked that s. 3 prohibits “restrictions as

to their power of dealing with their lands when granted [other] than those

which the laws of Manitoba may prescribe” [emphasis added]. Facilitating

or enabling transactions, as all of Manitoba’s legislation did except for the

1873 Act, can hardly be described as a restriction.

650

651

For all of these reasons I do not accept the appellants’ interpretation

of s. 3 of the April 25, 1871 Order in Council.

Given the complexity and breadth of the precedent-setting issues in

this case, the trial judge made a few mistakes. Two should be mentioned.

Page 221

Firstly, in support of his conclusion that the Métis were not Indians, he

interpreted the Supreme Court’s decision in Blais as authority for the

proposition that for all purposes our highest court had so found. This is not

correct. The court in Blais was very careful to restrict its conclusions to the

narrow issue before it, namely, whether the Métis were Indians as that term

was used in the Natural Resources Transfer Agreement of 1930. The

Supreme Court left the broader question to be determined another day. In

the end, this was not a significant error as the point is not a determinative

one for our purposes, and the trial judge came to the same conclusion based

on his analysis of the evidence before him.

652

The other obvious mistake made by the trial judge was to conclude

from Flanagan’s evidence that sales by children under the age of 21 through

the judicial process accounted for less than ten percent of all sales. In fact,

Flanagan’s testimony referred only to sales by children under 18. In cross-

examination, Flanagan appears to have accepted that the combined total of

sales by children under 21 could be as high as 35 to 40 percent of all sales.

However, the trial judge’s error, in my opinion, does not affect his overall

conclusion that it would have been practically impossible to bar alienation

before patents, and that while there were undoubted abuses, there was

evidence of sales which occurred at market prices and “clear evidence” (at

para. 1048) that not all sales were to speculators. In any event, one should

not be surprised that there were a goodly number of sales pursuant to the

Lands of Half-breed Children Act by 18- to 21-year-olds, given the fact that

they were legally entitled to receive the patent from Canada upon attaining

18 years of age, and that a court process was in place to permit sales of s. 31

Page 222

lands provided the court was satisfied that the disposition was voluntary.

653

As well, it would appear that the trial judge was mistaken when he

found there was no discussion about the children’s grant at the meeting

Cartier arranged with the Governor General on May 19, 1870. But even if

“palpable,” this error hardly constitutes “overriding” error.

Delay

654

With respect to delay, there was great delay – much of it

unexplained. But determining whether a fiduciary’s conduct did not meet

the content of their obligation in the particular circumstances before us is an

intensely fact-driven exercise. As the Ontario Court of Appeal noted in

Powley ((2001), 53 O.R. (3d) 35 at para. 75):

… At such an early stage of development in this area, a provincial

appellate court must approach its task with due regard to the

importance and complexity of aboriginal rights. It is impossible to

define the rights of an entire people within the confines of one case. …

[c]laims of aboriginal rights are intensely fact specific, and involve a

close, careful and detailed scrutiny of events long past. … A full

articulation of the shape and subtle contours of constitutionally

protected Métis rights will undoubtedly unfold over time in the usual

incremental fashion of the common law. …

655

656

It cannot be presumed that the reason for the delay, however

extensive, was a breach of fiduciary obligation. The onus was on the

appellants throughout to prove a breach on the civil burden of proof.

With respect to those known events that contributed to the delay

(prominent among them the cancellation of the first two allotments, the slow

Page 223

pace of the allotment process in the third and final round, the erroneous

inclusion of adults as beneficiaries for the s. 31 grants, and the long delays in

the issuance of patents), mistakes were made and it is difficult to avoid the

inference that inattention or carelessness may have been a contributing

factor. But there is no convincing evidence that Canada’s conduct overall

constituted “deliberate ineptitude” or “unconscionable conduct” as asserted

by the appellants. In my opinion, delay, even long delay, in and of itself is

insufficient, in this instance, to lead to the conclusion that a fiduciary

obligation, if present, was breached.

657

One recurring theme in the trial judge’s extensive reasons for

decision concerns the complete absence of non-documentary evidence to

explain the context and understandings for the many events that form the

historical background of this lawsuit. The trial judge’s first discussion of

this difficulty occurs in the trial judgment (see paras. 427-29), when the trial

judge was considering the limitation issue. In reviewing the “mass of

material, most of it archival” (at para. 427), he rejected the appellants’

argument that the documentary evidence was sufficient – as being

tantamount to having the people involved appearing in the courtroom as wit-

nesses – to enable the court to confidently make all necessary findings. He

considered oral testimony, “if not essential, extremely helpful” (at para. 428)

in ascertaining what actually occurred with respect to the negotiations lead-

ing up to, and the implementation of the Act, and the conduct of the various

players. Surely this is correct, given the significant gaps in the record.

658

As we have seen, the trial judge returned to this refrain when he

considered the appellants’ argument that the issuance of scrip in lieu of a s.

Page 224

31 grant constituted legal error. At para. 1028, in commenting on the fact

that the circumstances of only three of the 993 scrip recipients were before

him (and then only by way of documentation), he posed a series of critical

questions about the individual situations of the 993 people, for which the

record did not provide an answer. In the result, he expressed an evidentiary

concern about the weight he should give to the fact that 993 supplementary

scrips were issued. And as Canada correctly pointed out, the fact that there

were only three examples before the court is entirely the responsibility of the

appellants.

659

Similarly with respect to delay, the trial judge again highlighted the

difficulty of assessing circumstances which occurred “between 1870 and

1885 approximately, through 2007 glasses” (at para. 1056). The trial

judge’s concern is entirely consistent with the observation made by Binnie J.

in Wewaykum (at para. 121):

… Witnesses are no longer available, historical documents are lost and

difficult to contextualize, and expectations of fair practices change.

Evolving standards of conduct and new standards of liability eventually

make it unfair to judge actions of the past by the standards of today. …

660

661

In the result, it was difficult to reliably assess the vagaries of what

was being sold and its market value. His conclusion was that the Métis, as

“full citizens,” made their own choices.

With respect to the fallibility of the documentary record, it is helpful

to recall the trial judge’s observation near the beginning of his judgment that

“even the plaintiffs acknowledge that while documents record information,

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there is contextual uncertainty as to the degree of reliability of the

documents” (at para. 23). It is also noteworthy that when it serves their

purpose, the appellants themselves are not above limiting the scope of

documents. As the trial judge said (at para. 429):

Indeed, despite their argument that the archival and other documents

are tantamount to having the authors appear as witnesses, the plaintiffs,

as I have already stated, argued that the land documents filed with the

Land Titles Office, while doubtless of a high degree of accuracy, could

be relied upon only for what the documents said but could not be taken

to establish that what the documents said actually occurred.

662

663

The trial judge’s concern about contextual uncertainty, which led him

to conclude that the appellants had not proven the factual foundation of their

claim, surely applies with great force to the areas specifically highlighted by

him, namely, limitations, the granting of scrip, and delay.

With respect to many other issues, the trial judge did the best he

could with the documents available, but in the end was not persuaded that

the appellants had proven their allegations on a balance of probabilities. In

my opinion, the trial judge’s conclusions, be they findings of fact or mixed

findings of fact and law, were reasonable and supported by the evidence

before him.

Ultra Vires Legislation

664

The fifth and last asserted breach of Canada’s fiduciary obligation is

that Canada stood by and knowingly allowed Manitoba to pass ultra vires

legislation that facilitated sales before grant and before the age of 21.

Page 226

665

The first step in the analysis of this allegation is to determine whether

Manitoba’s legislation was ultra vires. As I have already concluded that this

issue is moot, it is not strictly necessary to consider this matter further.

Nonetheless, since much time and effort was spent by all counsel on the

issue of the constitutionality of Manitoba’s legislative initiatives, I simply

state that, based on the authorities placed before this court, and the

submissions of counsel, I am far from persuaded that Manitoba’s impugned

legislation was constitutionally invalid.

666

667

Secondly, there is the complex question as to what duty, if any,

Canada owed to the Métis if Manitoba’s legislation was ultra vires.

Canada’s good faith is not in issue; indeed, there is no suggestion that

Canada, before these proceedings, considered the validity of Manitoba’s

legislation to be in dispute. One recourse potentially available to Canada

would have been to disallow Manitoba’s legislation, as they did on one

occasion in 1876 (para. 129). There are two problems with this. The first is

that disallowance is a quintessentially political act that has been consistently

held not to be justiciable. Secondly, if it can be said that Canada’s failure to

disallow could ever constitute a breach of fiduciary duty, which I doubt,

Canada’s choice not to do so could well have been a reasonable exercise of

its discretion to consider competing interests in the new and growing

province of Manitoba. This latter point applies with equal force to any

suggestion that Canada should have sought a declaration in court given the

complete absence of anything resembling the modern day concept of

fiduciary obligations to Aboriginals, and the appellants’ candid admission

that if the Métis had sought timely judicial relief, they likely would not have

Page 227

been successful.

668

The trial judge did not commit palpable and overriding error when he

rejected the appellants’ assertions that Canada had breached any duty that

might have been owed to the Métis. The appellants’ appeal with respect to

the issues surrounding s. 31 of the Act therefore cannot succeed.

PART IV

SECTION 32

669

The appellants argue that fiduciary obligations attached to the

administration of s. 32 of the Act. They make this argument on two bases:

first, that the fiduciary relationship between the Crown and Aboriginal

peoples is engaged by s. 32 (from which a fiduciary duty arose) and second,

that in any case a fiduciary duty was owed based on the Ontario Court of

Appeal’s 2002 decision in Authorson (hereinafter “Authorson 2002”),

reported at (2002), 58 O.R. (3d) 417. In addition, the appellants say the

honour of the Crown was engaged.

670

Section 32 of the Act reads:

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.

Page 228

(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.

[emphasis added]

671

The trial judge found that there was no fiduciary duty owed to the

appellants with respect to s. 32 of the Act (at paras. 682-83, 685):

… Firstly, there is no evidence that Parliament intended by s. 32 to

create a fiduciary relationship between Canada and the residents who

fell within s. 32 and particularly subss. 32(3), (4) and (5).

Secondly, there is not, in my view, any basis for the creation of a

fiduciary responsibility between Canada and those residents. None of

those residents held aboriginal title to the land in question. None held

any interest or any claim to interest independent of the Crown or

through it the governing authority of the territory. This was

particularly so under subss. (3) and (4) being squatters whose

occupation was by tacit approval only and under subs. (5), whose

interest was as to the use of land but only with the approval of and

subject to the conditions imposed by the Crown or governing authority

within the territory.

In short, the persons entitled under s. 32 had no interest in the land

independent of the Crown and furthermore enjoyed whatever interest

they had by sufferance of the Crown.

Page 229

672

I find that the appellants’ argument fails on the first two grounds.

The fiduciary relationship between the Crown and Aboriginal peoples is not

engaged by s. 32, and the appellants cannot bring themselves within

Authorson 2002. As we have already seen, the honour of the Crown is not

engaged with respect to s. 32. Furthermore, as already concluded (see para.

293), the claim is statute-barred.

673

674

A review of the early history of lands within the settlement belt and

the OTM makes it clear that the purpose of s. 32 was to recognize and

confirm the different categories of landholdings in existence shortly before

or at the creation of the new province.

Collectively subss. (1) to (4) address the various types of land tenure

which existed and were recognized within Assiniboia. These were freehold

grants from the HBC (subs. (1)), estates less than freehold grants from the

HBC (subs. (2)), occupancy within the settlement belt with the express or

tacit sanction of the HBC (i.e. squatters) (subs. (3)), and finally peaceable

possession by squatters of land outside the settlement belt where Indian title

had not been extinguished (subs. (4)).

675

This appeal concerns only subss. (3) and (4). Except for the issue of

delay, which is common to subss. (1) to (4), no complaint is made with

respect to the grants of land from the HBC, or lands occupied within the

settlement belt with the permission of the HBC, referred to in subss. (1) and

(2).

676

Subsections 32(3) and (4) dealt with circumstances where an interest

Page 230

in land had not been formally conferred by the HBC. With respect to the

latter – being outside the settlement belt – the HBC had no authority to

authorize or permit such occupancy. In either instance, whatever

landholding the settler may have had was unlikely to be confirmed by

documentation.

677

Subsection 32(5) concerned rights in common and haying in the

Settlement. Most, if not all, of these rights were exercised outside the

settlement belt. While a source of considerable controversy during its

implementation, and very much a live issue at trial, this issue was not

pursued by the appellants on appeal. There will therefore be little discussion

about it in this decision.

678

Statements concerning the importance of preserving the existing

interests in land held by residents of the Red River Settlement were made by

Macdonald and Donald A. Smith (Chief Agent of the HBC) well before the

passage of the Act on May 12, 1870. As well, subs. 32(4) was referred to

explicitly in the letter from Cartier to Ritchot of May 23, 1870, wherein

Cartier undertook that those entitled to claims under that section would not

be required to pay for their land.

679

680

It is significant that all four lists of rights prepared by the

representatives of the Red River Settlement before the delegates left for

Ottawa on March 24, 1870, contained provisions designed to ensure that the

existing landholding interests were protected.

One potential difficulty with respect to subs. 32(4) and subs. 32(5),

referring as they did to rights in the OTM, was eliminated once Indian title

Page 231

over the territory had been extinguished by treaties in 1871. Subsequently,

Canada’s Order in Council of November 11, 1872, provided that claimants

under subs. 32(4) of the Act would be dealt with on the same terms as those

under subs. (3).

681

Controversy soon arose between Canada and the local residents as to

the necessity of showing occupation or possession under either subs. 32(3)

or subs. 32(4). One particularly difficult problem occurred with respect to

“staked claims.” Staked claims referred to the practice of planting stakes,

ploughed furrows, or the like, at the corners of a parcel of land as evidence

of entitlement. It was said to be in accordance with the common

understanding and practice of the Settlement that ownership could thereby

occur without occupation or any obvious signs of possession. Especially

contentious were the large number of claims “staked” a month or two before

July 15, 1870.

682

On May 26, 1874, Canada passed legislation which effectively

combined subss. 32(3) and 32(4) of the Act to provide that persons who

“established undisturbed occupancy” and were “in actual and peaceable

possession thereof,” would be entitled to obtain letters patent for the land.

The relevant date for “actual and peaceable possession” was changed in

subs. (3) on April 8, 1875, to July 15, 1870, to coincide with subs. (4). Prior

to this alteration, the relevant date for subs. (3), like subss. (1) and (2), was

March 8, 1869.

683

It was not until March 19, 1875, that an Order in Council was passed

authorizing the first s. 32 patents. In April 1875, a commission was

Page 232

established to settle claims between settlers but not between settlers and the

Crown. But the position taken by Canada that s. 32 required undisturbed

occupancy and actual peaceable possession continued to be a troubling one,

especially with respect to staked claims.

684

685

686

687

The appellants’ strong criticism of Canada’s insistence on this policy

was not accepted by the trial judge who found that, “[t]he Council of

Assiniboia recognized occupation as a requirement in order to give

recognition to one’s claim in land outside the Settlement Belt, or surveyed

area” (at para. 288).

Eventually the Order in Council of April 20, 1876, recognized claims

based on constant occupation, or where ownership was recognized in the

Settlement. The Order in Council also stated that lands that were not

surveyed or occupied prior to July 15, 1870, but merely staked, were not

entitled to consideration.

By the fall of 1876, 2,604 applications for letters patent had been

received (of which it was estimated one-quarter were “staked claims”); it

was estimated there were at least 400 additional claims. Controversy

continued with respect to the requirements to establish occupation or

ownership.

Debate continued in the Senate in the spring of 1878 about staked

claims and the process for resolving conflicting claims; it was suggested that

it was not lawful to insist on actual occupancy when subs. 32(4) referred

only to peaceable possession. Finally, in May 1879, Macdonald stated in

Parliament that the government intended to recognize “such staked claims as

Page 233

have been followed by possession and improvement.”

688

689

690

On February 14, 1880, the Legislative Assembly of Manitoba

complained to the Governor General about the lack of attention being paid to

the staked claims, claiming that “nearly all the staked claims are now

occupied and improved.”

In 1881, Ritchot intervened, arguing that Macdonald and Cartier

must have understood in the negotiations of April/May 1870 that “peaceable

possession,” as incorporated into subs. 32(4), was to be understood in

accordance with the usages of the country at the time.

A further Order in Council dated February 25, 1881, provided

clarification of the April 20, 1876 Order in Council by classifying claims

staked out by claimants before July 15, 1870, into three categories. Where

property had changed hands and the purchasers were in possession and

living on the lands, they were entitled to accept a homestead entry for 160

acres, and to acquire the balance at one dollar per acre. For unimproved

lands there was a lesser entitlement. Claims to lands staked for “speculative

purposes” were to be dealt with by a commission.

691

Contested claims were eventually passed to the Dominion Lands

Board in 1883, which soon established formal rules for the three categories

of lands.

692

693

In the end, only first class staked claims, occupied by the claimants in

1881, were entitled to a free grant of 160 acres.

The Manitoba Land Claims Act, 1884, S.C. 1884 (47 Vict.), c. 26,

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extended the time for making claims under subss. 32(3) and (4) until May 1,

1886. Further amendments were made extending the grace period for many

years thereafter. There was no evidence that any applicant was dispossessed

of their land because of the delay in issuing the s. 32 patents.

IV.1 The Trial Judgment

694

The trial judge explained that the essence of s. 32 was contained in

the opening phrase of the section. Furthermore, there was a “clear and broad

discretion” given to the Governor General in Council with respect to the

administration of subs. (4). The difference between subss. (3) and (4)

related to the status of the land at the time of transfer. No doubt

representations and assurances were given during the April/May 1870

negotiations, but no agreement was reached.

695

Canada was entitled, the trial judge concluded, to require some

degree of occupation for the existence of peaceable possession and cannot be

challenged at this late date given its good faith. In any event, the appellants’

argument that Canada misapprehended the usages of the country respecting

the mode of taking possession under subs. 32(4) is without merit given

Canada’s broad discretion.

696

There was a critical absence of viva voce evidence. While all

available historical documents were before the court, they did not tell the

complete story. It was therefore “risky to reach a conclusion on the issue of

delay without receiving evidence which might explain the delay” (at para.

1187). It was, the trial judge wrote, simply “not appropriate to pass

Page 235

judgment on this issue in 2007 [the year of the trial] in respect of matters

that occurred 125 years ago” (ibid.); “at the very least, it is not something

which, in my view, should give rise to declaratory relief” (at para. 1188).

IV.2 The Appellants’ Position

697

698

In 1870, 85 percent of the population of Manitoba was Métis. Both

within and outside the settlement belt, possession of lands prior to July 15,

1870, had been taken up in a very gradual and informal basis without

necessarily constructing buildings or making any improvements to the lands.

Under subss. 32(3) and (4), the appellants argue, “really valuable

improvements” were not required and settlers were to receive their lands free

of charge with no arbitrary maximum size. If ownership was acknowledged

in the Settlement (the usage of the country had been to permit occupation by

staking), the holders had a “title by occupancy” and should have received a

free grant; improvements were neither required by s. 32 nor part of the

agreement reached by the delegates.

699

As characterized in the appellants’ factum (at para. 401):

… Despite the assurances given to the people, for almost a decade and

a half after 1870 Canada insisted on a high level of improvements and

occupation before it would grant title to lands that were claimed under

subsections 32(3) and (4), and only after extraordinary delay and the

departure of many of the original claimants did Canada finally adopt a

test that accorded with what had been the usages of the country.

700

Reference is made by the appellants to Ritchot’s lengthy letter to

Macdonald of January 15, 1881, in which he questioned Canada’s good faith

Page 236

with respect to staked claims. A liberal interpretation of the Act would have

led to virtually all of the settlement belt remaining in the hands of the old

settlers; the trial judge erred in failing to find this did not happen due to

Canada’s unacceptable technical position with respect to “possession” and

“occupation.”

701

702

Reliance is placed on Flanagan’s statement that having to prove

“undisturbed occupancy” as well as “peaceable possession” was a hardship

for those who had staked out claims and not settled on them.

It was not until May 1883, some 13 years after the Act was passed,

that a more liberal interpretation of “occupancy” and “peaceable possession”

was adopted on the recommendation of Deputy Minister Burgess. In the

result, between 800 and 1,200 of approximately 3,000 s. 32 claims were not

patented until sometime after 1882.

703

704

705

With respect to staked claims, the appellants argue that the trial judge

did not make a specific finding with respect to whether staking actually took

place before or after July 15, 1870. In any event, since the only relevant

date is July 15, 1870, events that occurred prior to that date are irrelevant.

As for Canada’s “egregious” delay, the evidence is clear that it was

caused by the imposition of an illiberal and technical policy, as well as

general inattention. Given that Canada had complete discretion and failed to

keep its promises, this constitutes a breach of fiduciary duty.

The appellants assert that the trial judge was entirely wrong at para.

1187 of the judgment, having found the delay “difficult to understand,” in

Page 237

concluding that it was not appropriate in the circumstances to rely only on

the documents. It is simple, the appellants say: Canada made promises and

then broke them.

IV.3 Canada’s Position

706

By virtue of subs. 32(3), squatters inside the settlement belt could

apply for freehold title based on occupation even though there was no

registration of their land interest under the HBC survey. For subs. 32(4),

“peaceable possession” was required. The difference in the language of

subss. (3) and (4), Canada says, reflected the different legal status of the land

inside and outside the settlement belt. The trial judge was correct in

concluding that the difference in language between subss. 32(3) and (4),

“title by occupancy” and “peaceable possession” respectively, did not

indicate that a different test should be applied.

707

The common law concept of occupancy applied to both subss. 32(3)

and (4). Accordingly, it was not unreasonable to insist on satisfactory

evidence of occupation before making a free grant. Even the appellants

concede that some degree of occupation was required. There is no reference

to the “usages of the country” in the Act. When subss. 32(3) and (4) were de

facto merged in 1874, the concepts of undisturbed occupancy and actual

peaceable possession became even more important.

708

709

Even though subs. 32(4) did not specifically provide for a free grant,

Canada notes that the government ultimately provided a free grant for

legitimate claims, entirely consistent with Cartier’s letter of May 23, 1870.

Except for staked claims, there was no evidence at trial to show that

Page 238

legitimate applicants under subss. 32(3) or (4) had a more difficult time

proving their claims than applicants under subss. (1) and (2). In fact,

Flanagan observed that claimants under subss. 32(3) and (4) who were

actually living on their claims prior to July 15, 1870, had no more difficulty

getting patents than did those under subss. (1) and (2). Dr. Ens testified that

it was easy to obtain s. 32 patents.

710

By definition, Canada suggests, there was no bona fide intention to

occupy the staked lands prior to the passage of the Act. The reference to

“the time of the transfer to Canada” in subs. 32(4) was not intended to give

people a right to take advantage of the delay in creating the province once

the Act was passed in order to obtain a benefit; this is confirmed by the

preamble to s. 32.

711

712

With respect to delay, Canada says that if any occurred, it did not

cause deprivation because people were not, in contrast to s. 31, kept off their

lands in the interim.

There is no causal link between delays under s. 32 and the dispersal

of one-half the Métis population by 1881. There was no evidence that the

Métis were pushed out of Manitoba by their inability to secure s. 32 grants.

IV.4 Analysis and Decision

Re Fiduciary Obligations and Section 32

IV.4.1 Whether Section 32 Engages the

Crown-Aboriginal Fiduciary Relationship

713

I begin by addressing whether the Crown-Aboriginal fiduciary

relationship was engaged in the administration of s. 32 of the Act. I have

Page 239

already concluded in the earlier part of this decision devoted specifically to

the honour of the Crown that this doctrine is not engaged when considering

the provisions of s. 32.

714

Whether a fiduciary relationship existed is relevant in that, if

answered in the affirmative, the question whether there was a specific

fiduciary duty would proceed based on the analysis found in other

Aboriginal fiduciary duty cases, looking at whether the Crown has assumed

discretionary control over a cognizable Aboriginal interest: Haida at para.

18 and Wewaykum at para. 85.

715

In Galambos, the Supreme Court of Canada discussed the distinction

between per se fiduciary relationships (like the Crown-Aboriginal fiduciary

relationship) and ad hoc fiduciary duties (such as the one at issue in

Authorson). As Cromwell J., writing for the court, explained (at paras. 36,

48):

Certain categories of relationships are considered to give rise to

fiduciary obligations because of their inherent purpose or their

presumed factual or legal incidents … These categories are sometimes

called per se fiduciary relationships. … It is important to remember,

however, that not every legal claim arising out of a per se fiduciary

relationship, such as that between a solicitor and client, will give rise to

a claim for a breach of fiduciary duty.

[The Court of Appeal] held, … that the particular circumstances of the

relationship between Ms. Perez and Mr. Galambos and his firm gave

rise to what may be called an ad hoc fiduciary duty. This means that

apart from the categories of relationships to which fiduciary obligations

are innate, such obligations may arise as a matter of fact out of the

specific circumstances of a particular relationship: see, e.g., Lac

Minerals, at p. 648; Hodgkinson, at p. 409. The existence of the

fiduciary obligation is thus primarily a question of fact to be

determined by examining the specific facts and circumstances: Lac

Minerals, at p. 648.

Page 240

See also Hodgkinson at pp. 409-10 and Frame at p. 136.

716

Once a per se category of fiduciary relationship is established, the

decision whether an enforceable fiduciary duty exists is then approached

with reference to broad statements on fiduciary obligations (see, for

example, Hodgkinson, Gladstone and Guerin), based on precedents within

the same or comparable relationships. Conversely, the test for determining

whether an ad hoc fiduciary obligation exists was set out by the Supreme

Court in Galambos. While there is a single body of fiduciary law in Canada,

like any other aspect of law, precedential and analytical relevance increases

with factual similarity.

717

718

719

Section 32 of the Act was of general application. Unlike s. 31, it

applied to all settlers, not only to the Métis. It contained no direct reference

to extinguishment of Indian title, or to the Métis or Indians in any way. As

the preamble to s. 32 states, its purpose was to regularize existing property

rights and entitlements.

The appellants claim that the Crown-Aboriginal fiduciary

relationship was engaged in the administration of s. 32. They point out that

85 percent of the recipients of s. 32 grants were Métis, and argued at the

hearing that the appellants should not be in a worse position regarding s. 32

than they are with s. 31 just because their neighbours also benefitted from it.

The trial judge found no fiduciary duty with respect to s. 32. He

wrote that “[t]he provisions of s. 32 did not apply to the Métis as Métis, but

it applied to all settlers. Its purpose had nothing to do with the aboriginality

Page 241

of the Métis, but was simply to quiet titles and assure the retention of lands

by all residents of Red River who had held such land prior to transfer” (at

para. 1170).

720

In Gladstone v. Canada (Attorney General), 2005 SCC 21, [2005] 1

S.C.R. 325, the Supreme Court of Canada, per Major J., wrote (at para. 23):

… Although the Crown in many instances does owe a fiduciary duty to

aboriginal people, it is the nature of the relationship, not the specific

category of actor involved, that gives rise to a fiduciary duty. Not

every situation involving aboriginal people and the Crown gives rise to

a fiduciary relationship. See Haida Nation v. British Columbia

(Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18,

per McLachlin C.J. The provisions of the Fisheries Act dealing with

the return of things seized are of general application. I agree with the

trial judge and the Court of Appeal that the respondents’ aboriginal

ancestry alone is insufficient to create the duty in these circumstances.

[emphasis added]

721

Sinclair J., writing in Canada (Attorney General) v. Virginia

Fontaine Memorial Treatment Centre Inc. et al., 2006 MBQB 85, 203

Man.R. (2d) 48, struck parts of the pleadings because they disclosed no basis

for their claim of a Crown-Aboriginal fiduciary duty. He wrote that “a bald

assertion of a fiduciary obligation and breach of fiduciary duty arising solely

from the defendants’ status as Indians under the Indian Act and/or the

Constitution Act 1867 is not a sufficient pleading upon which to found a

claim or a defence” (at para. 69). He pointed out that “there is no other

Aboriginal interest alleged other than the fact that the corporations were

funded to run treatment programs for Aboriginal people” (at para. 70); thus,

any duty that arose was “… not, in particular, a duty that arose because of

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the Crown’s relationship with the defendants by virtue of their status as

Aboriginal people” (ibid.).

722

Much like in Gladstone and in Virginia Fontaine Memorial

Treatment Centre, the obligations associated with s. 32 simply did not arise

in the context of the Crown-Aboriginal relationship. While many of its

beneficiaries were Aboriginal, so were those making fiduciary claims in

Gladstone and Virginia Fontaine Memorial Treatment Centre. More is

required in order to place a given interaction within the Crown-Aboriginal

fiduciary relationship.

IV.4.2 Was a Public Law Fiduciary Duty Owed in the Administration

of

Section 32?

723

The trial judge in the present case found that there was no fiduciary

duty owed to the appellants with respect to s. 32 of the Act, writing that “the

persons entitled under s. 32 had no interest in the land independent of the

Crown and furthermore enjoyed whatever interest they had by sufferance of

the Crown” (at para. 685) (emphasis added). I agree that those entitled to

the benefit of s. 32 were not owed fiduciary obligations in its administration.

724

The Crown has many obligations and does not normally owe

fiduciary duties in carrying them out. While Guerin was a decision made in

the context of the Crown-Aboriginal relationship, it remains the leading case

on Crown fiduciary obligations generally. In Guerin, Dickson J. (as he then

was) made the following oft-quoted general observation with respect to

Crown fiduciary duties (at p. 385):

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