Simon's Legal Resources

Indigenous - Honour of the Crown

. Manitoba Métis Federation Inc. v. Canada (Energy Regulator)

In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. In these quotes the court reviews the Honour of the Crown doctrine:

[77] The principle of the honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people” (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para. 32 [Haida Nation]). The honour of the Crown originates in the Royal Proclamation of 1763 in which there is reference to “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection” (2013 MMF-SCC at para. 66), and in which the Crown “pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 42 [Little Salmon]).

[78] The purpose of the honour of the Crown is the reconciliation between the assertion of Crown sovereignty and the pre-existing Aboriginal societies that were never conquered (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 at para. 24; 2013 MMF-SCC at para. 66; Haida Nation at para. 25). The honour of the Crown is a constitutional principle engaged by section 35 of the Constitution Act, 1982 (Little Salmon at para. 42, 2013 MMF-SCC at para. 69). It applies whether or not the parties intend it to (Little Salmon at para. 61).

[79] There is no debate in the present appeal that the honour of the Crown applies to the Decision. The CER Act contains several provisions that mandate the application of the principles of the honour of the Crown. For example, subsection 10(2) specifies that the CER is an agent of the Crown. Paragraph 11(h) stipulates that the CER’s mandate includes “exercising its powers and performing its duties and functions in a manner that respects the Government of Canada’s commitments with respect to the rights of the Indigenous peoples of Canada.” Further, with respect to the Commission, section 56 requires that, when making an order, decision or recommendation under the CER Act, the Commission “consider any adverse effects that the decision, order or recommendation may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.”

. Canada v. Jim Shot Both Sides et al

In Canada v. Jim Shot Both Sides et al (Fed CA, 2022) the Federal Court of Appeal considered a long-standing (42 years) federal civil case concerning the allocation, and damages for failure to allocate, treaty lands. The case invokes many principles of native law - including the honour of the Crown - and while partially granting the appeal, essentially refers the case to the federal statutory Specific Claims Tribunal Act, S.C. 2008, c. 22.

. Restoule v. Canada (Attorney General)

In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal canvassed principles applicable to the 'honour of the Crown' as they apply to indigenous treaties:

(1) The Governing Principles Concerning the Honour of the Crown

[232] The honour of the Crown has been recognized as a legal principle applying to treaties since at least 1895,[147] but its roots are far deeper.[148] It is historically linked to the Royal Proclamation of 1763 (the “Royal Proclamation”)[149] and engaged by s. 35 of the Constitution Act, 1982.[150] In Haida Nation, McLachlin C.J. explained:

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”….[151]

[233] We repeat McLachlin C.J.’s strong statement: “The controlling question in all situations is 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.”[152] The honour of the Crown is “always at stake” in the Crown’s dealings with Aboriginal people.[153] According to McLachlin C.J., this statement “is not a mere incantation, but rather a core precept that finds its application in concrete practices.”[154]

[234] The honour of the Crown “infuses” the process of treaty interpretation,[155] and is “an important anchor”.[156] Further: “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).”[157] The honour of the Crown gives rise to justiciable duties.[158] While not a cause of action in itself, [159] the honour of the Crown can also be the subject of a declaration.[160]

[235] Brian Slattery argues that in Haida Nation and Taku River, “we witness the emergence of a new constitutional paradigm governing Aboriginal rights” built around the doctrine of the honour of the Crown.[161] In his book, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada, Jamie D. Dickson makes an extended argument that since Haida Nation, the doctrine of the honour of the Crown has begun to displace fiduciary duty as the principal means by which the court assesses Crown actions under treaties. He states:

[T]he fundamental conceptualisation of Crown obligations in Aboriginal contexts was entirely reset upon (a) explicitly, the core principle that the Crown is legally mandated to always act honourably in its dealings with Aboriginal peoples, and (b) implicitly, the notion that the regulation of the mischief of Crown dishonour involving Aboriginal peoples is the predominant, if not the exclusive, function of Aboriginal law.[162]

[236] The caselaw bears out Dickson’s prediction, flowing from Haida Nation, that in giving content to sparsely defined treaty promises courts will utilize the doctrine of the honour of the Crown, not fiduciary duty. He notes:

As the doctrinal anchor of Aboriginal law — as it was described by Justice Binnie in Little Salmon/Carmacks — the honour of the Crown principle describes the core mandate of this area of law — that the Crown is to act honourably in its dealings with Aboriginal peoples — and operates to give rise to specific and enforceable obligations, the breach of which by the Crown violates the anchor principle.[163]

[237] In Mikisew Cree (2018), Karakatsanis J. noted:

This Court has repeatedly found that the honour of the Crown governs treaty making and implementation, and requires the Crown to act in a way that accomplishes the intended purposes of treaties and solemn promises it makes to Aboriginal peoples…. Treaty agreements are sacred; it is always assumed that the Crown intends to fulfill its promises. No appearance of “sharp dealing” will be permitted….[164]

[238] In Haida Nation, McLachlin C.J. pointed out that: “The honour of the Crown gives rise to different duties in different circumstances.”[165] In Manitoba Metis, McLachlin C.J. and Karakatsanis J. note that “[w]hat constitutes honourable conduct will vary with the circumstances”, and that “the duty that flows from the honour of the Crown varies with the situation in which it is engaged.”[166] The incidents of the honour of the Crown that may apply include “a fiduciary duty when the Crown assumes discretionary control over a specific Aboriginal interest”.[167] It is instructive that in Manitoba Metis the court found that the honour of the Crown did not give rise to a fiduciary duty[168] even though the honour of the Crown was breached.[169]

[239] As an example of the more nuanced approach, McLachlin C.J. noted in Haida Nation that:

[W]hile 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 interests.[170]

[240] The most common cases in which the court has imposed fiduciary duties on the Crown as an incident of its honour are those where the Crown controls the disposition of reserve property, including the taking up of reserve lands or lands subject to a treaty. Examples include Guerin, Grassy Narrows, and Southwind.[171] There are also cases where the court did not rely on fiduciary duty in which the complaint was that the Crown had not given full effect to a treaty, including Marshall, or had not complied with the duty to consult.[172]

[241] The honour of the Crown demands the purposive interpretation of treaties by the courts and by the Crown.[173] The Crown must act “diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests”[174] and “diligently pursue implementation” of treaty promises[175] in order to achieve their intended purposes.[176] This duty of diligent implementation is “narrow and circumscribed”.[177] Like the duty to consult, it is distinct from fiduciary duties. To fulfil the duty of diligent implementation, “Crown servants must seek to perform the obligation in a way that pursues the purpose behind the promise.”[178] Implementation need not be perfect, but “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.”[179]

[242] These are the duties that arise from the honour of the Crown in relation to the promises made in the Robinson Treaties. The question then becomes whether the concept of fiduciary duty has any work to do that is not done by the honour of the Crown and its duty of diligent implementation. We address this question below.

. Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation

In Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation (Ont CA, 2021) the Court of Appeal considered the 'honour of the Crown' as it relates to aboriginal law:

[72] The honour of the Crown is “a foundational principle of Aboriginal law and governs the relationship between the Crown and Aboriginal peoples”: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 21. It obliges servants of the Crown to “conduct themselves with honour when acting on behalf of the sovereign” with Aboriginal peoples: Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 65. The ultimate purpose of the honour of the Crown is “the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty”: Manitoba Métis Federation, at para. 66; R. v. Desautel, 2021 SCC 17, 456 D.L.R. (4th) 1, at paras. 22, 30; and Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, 443 D.L.R. (4th) 1, at paras. 22-24.