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Indigenous - Duty of Diligent (Treaty) Implementation. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court states it's indigenous 'duty of diligent implementation':(b) The Duty of Diligent Implementation
[254] The duty of diligent implementation holds the Crown responsible for making good on its treaty promises. The duty was first recognized in this Court’s decision in Manitoba Metis, which concerned certain obligations owed to the Red River Métis in the Manitoba Act, 1870. The Red River Métis had forcefully resisted colonial advances for many years, but agreed to become part of Canada in 1870. In return, Canada agreed to grant 1.4 million acres of land to Métis descendants and to recognize certain existing landholdings. These two pledges were set out in ss. 31 and 32 of the Manitoba Act, 1870, a constitutional instrument.
[255] Over the years, the Crown set aside some land for the Métis descendants, but errors and delays ensued. Allotments were abandoned, distributions of land became random, and speculators began acquiring Métis land through legal loopholes. In 1981, the Manitoba Metis Federation and individual Métis claimants sued the attorneys general of Canada and Manitoba for declarations that the Crown had breached a fiduciary duty owed to the Métis in implementing the Manitoba Act, 1870 and had failed to implement the land grant promise consistently with the honour of the Crown. Both the trial judge and the Manitoba Court of Appeal dismissed the action.
[256] This Court unanimously found that no fiduciary duties arose out of the Crown’s promises to the Métis in s. 31 of the Manitoba Act, 1870. Writing for the majority, McLachlin C.J. and Karakatsanis J. nevertheless ruled that the Métis were entitled to a declaration that the Crown had failed to act diligently in implementing the land grants. This duty flowed directly from the honour of the Crown and required the Crown to take a broad purposive approach to the interpretation of the land grant promise and to act diligently to fulfill it (para. 75).
[257] Elaborating on the second requirement, the majority explained that although the law “assumes that the Crown always intends to fulfill its solemn promises, including constitutional obligations” (para. 79, citing Badger, and Haida Nation, at para. 20), the Crown’s responsibilities go further: “. . . if the honour of the Crown is pledged to the fulfillment of its obligations, it follows then that the honour of the Crown requires the Crown to endeavour to ensure its obligations are fulfilled” with “due diligence” (para. 79, citing Moses, at para. 23).
[258] The Crown’s duty to ensure that its obligations are fulfilled requires that the Crown “seek to perform the obligation in a way that pursues the purpose behind the promise” to avoid leaving Indigenous parties with an empty shell of a promise (para. 80). It is a “narrow and circumscribed duty” which, in Manitoba Metis, was said to be “engaged by the extraordinary facts before us”, namely, a “persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown’s duty to act honourably in fulfilling its promise” (paras. 81-82). The majority found that the prompt and equitable implementation of the land grant promise was fundamental to reconciliation, which the Crown’s mistakes and inaction had prevented. In the majority’s view, “[a] government sincerely intent on fulfilling the duty that its honour demanded could and should have done better” (para. 128). The Court ultimately issued a declaration that the federal Crown had failed to implement the land grant provision in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown (para. 154).
[259] Since Manitoba Metis, the duty of diligent implementation has received only limited attention in the jurisprudence (see, e.g., First Nation of Nacho Nyak Dun, at para. 52; Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, 486 D.L.R. (4th) 1, at paras. 150-52; Watson v. Canada, 2020 FC 129, at paras. 499-500 (CanLII); Yahey v. British Columbia, 2021 BCSC 1287, 43 C.E.L.R. (4th) 1, at paras. 1779-87). This Court’s comments in Manitoba Metis remain the most complete and authoritative statement of the law on this duty.
[260] Although all parties agree the Crown has an obligation to diligently fulfill or implement the Augmentation Clause in the Robinson Treaties, Ontario insists, like the Court of Appeal minority concluded, that the duty is only procedural: the duty will be fulfilled if the Crown shows it has at least considered or turned its mind to increasing the $4 annuity from time to time.
[261] I accept that the duty of diligent implementation speaks to how Crown obligations must be fulfilled, rather than specifying a particular result in a given case (Manitoba Metis, at para. 73). Nevertheless, the Court must guard against divorcing the duty of diligent implementation from the very nature of the treaty promise at issue. The duty of diligent implementation itself does not dictate a particular result in this case. However, what it means to diligently and honourably implement the augmentation promise cannot be understood in terms of procedure alone, without reference to what the augmentation promise requires. In this case, all parties have agreed that an increase to the annuity in respect of the past is required. To determine what the duty of diligent implementation or fulfillment requires in this case, the Court must consider the question posed in Haida Nation in the context of the duty to consult: “. . . what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake”? (para. 45). In doing so, the Court must bear in mind that the honour of the Crown is a concept that necessarily “finds its application in concrete practices” (para. 16).
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(c) Conclusion
[264] I have no difficulty concluding that the Crown has clearly breached its duty to diligently fulfill the augmentation promise under the Robinson Treaties. As I explain below, I also have no difficulty concluding that the Huron and Superior plaintiffs are entitled to a remedy for this breach.
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