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Indigenous - Honour of the Crown
MORE CASES
Part 2
. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal briefly considers the 'honour of the Crown' in indigenous law, and that mere 'acknowledgement' of an infringement did not satisfy it:[137] The principles governing the honour of the Crown were set out at some length by this court in Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1 (“Restoule (ONCA)”), leave to appeal granted, [2022] S.C.C.A. No. 5, and summed up at para. 241:The honour of the Crown demands the purposive interpretation of treaties by the courts and by the Crown. The Crown must act “diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests” and “diligently pursue implementation” of treaty promises in order to achieve their intended purposes. This duty of diligent implementation is “narrow and circumscribed”. 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.” 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.” [Footnotes omitted.] ....
[150] Ontario also submits that what the Crown did to prevent encroachment was sufficient. Essentially, Ontario reasons that because the Crown “paid attention” to the issue of squatting, it acted with diligence in implementing its promise to prevent encroachment. We reject this argument. The honour of the Crown requires more than simply being aware of a problem; it “requires the Crown to endeavour to ensure its obligations are fulfilled”: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 79 (emphasis added). The honour of the Crown underlies the assessment of all dealings with Indigenous peoples and requires the Crown to purposively and diligently perform its constitutional obligations and treaty promises: Manitoba Metis Federation, at para. 75; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 97.
[151] Ontario says the trial judge erred by treating the requirement to pay attention as separate and distinct from the duty to act diligently, and therefore did not take it into account. In our view, the trial judge did not commit that error. Rather, she treated the duty to act diligently in the fulfillment of a treaty promise, in the circumstances of this case, as having two components: (i) to pay attention to the problem of squatting, and (ii) to act diligently with the purpose of preventing it. The trial judge went on to explain this second component as being about “whether the Crown did enough to prevent th[e] encroachments on the Peninsula” (emphasis added).
[152] This second component refers not to the awareness of a treaty promise or its challenges but to the necessary and corollary actions taken in furtherance of that promise. The trial judge found that the Crown did pay attention to squatting and took that fact into account in determining whether the Crown acted diligently, but she then went on to address whether the actions (and inactions) of the Crown were consistent with carrying out the promise to protect the Peninsula from encroachment. This was the correct approach.
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(f) Conclusion
[155] A trial judge’s findings of fact are due a high degree of deference and can only be departed from if there was a palpable and overriding error. In arriving at her conclusion that the Crown breached its honour by failing to act diligently, and thereby breached Treaty 45 ½, the trial judge cited and applied the correct legal test and did not misapprehend the evidence. The evidence supported her conclusions about the extent of squatting and about the Crown’s capacity to address it. The trial judge’s determination that the honour of the Crown, and Treaty 45 ½, were breached is firmly rooted in the evidence and maintained on appeal. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considers whether the Crown owed a fiduciary duty to natives in the context of treaty negotiation, here considered in the context of the similar 'honour of the Crown' duty:[161] There is no precedent for imposing a fiduciary duty on the Crown respecting its conduct in treaty negotiation. During such negotiation, it would be impossible and inappropriate for the Crown to forsake its own interests and those of others for those of the other party in the negotiation. Further, an Indigenous interest may be the subject of negotiations, but at the negotiation stage the Crown has not yet assumed discretionary control over the interest, which is the source of any fiduciary obligations. The doctrine of the honour of the Crown, in this context, makes it unnecessary to extend fiduciary duty into treaty negotiations. The obligations which might arise in treaty-making – loyalty, honesty, and good faith – are part of the honour of the Crown in the same context: Manitoba Metis Federation, at para. 73.
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(b) Did the Crown’s breach of its treaty promise amount to a breach of fiduciary duty?
[179] We begin with some general observations.
[180] Section 35(1) of the Constitution Act, 1982, provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
[181] The honour of the Crown underlies the assessment of all dealings with Aboriginal peoples. The honour of the Crown requires that the Crown purposively and diligently perform its constitutional obligations and treaty promises: Manitoba Metis Federation, at para. 75; Mikisew Cree, at para. 97.
[182] In certain circumstances, the obligations arising out of the honour of the Crown can manifest in a fiduciary duty owing to an Aboriginal group. As noted in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paras. 16 and 18:The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.
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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. [Citations omitted; emphasis added.] [183] A fiduciary duty may arise in two circumstances. Crown fiduciary duties to Aboriginal peoples can arise either in accordance with the sui generis test set out in Haida Nation, or according to the ad hoc test described in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44.
[184] In The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Saskatoon: Purich Publishing, 2015), Jamie D. Dickson characterizes an ad hoc fiduciary duty as a “conventional” fiduciary duty, as it most resembles a private law fiduciary duty. He characterizes the sui generis fiduciary duty as a non-conventional one, to mark its special application to Aboriginal peoples. We adopt his language because the Latin terms do more to obscure than clarify the common law origins of the principles.
[185] An ad hoc, or conventional, fiduciary duty arises where there is: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: Manitoba Metis Federation, at para. 50; Restoule (ONCA), at para. 586.
[186] As observed in Manitoba Metis Federation, at para. 61, a conventional fiduciary duty requires that the alleged fiduciary undertake to act in the beneficiaries’ best interests and forsake the interests of all others:The first question is whether an undertaking has been established. In order to elevate the Crown’s obligations to a fiduciary level, the power retained by the Crown must be coupled with an undertaking of loyalty to act in the beneficiaries’ best interests in the nature of a private law duty: Guerin, at pp. 383-84. In addition, “[t]he party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake”: Elder Advocates, at para. 31. Fundamental to a conventional fiduciary duty is the obligation to act only with regard to the interests of the beneficiaries and to disregard the interests of all others: Guerin, at p. 387; Restoule (ONCA), at para. 601.
[187] A sui generis, or non-conventional, fiduciary duty can arise where the Crown assumes a sufficient amount of discretion over a sufficiently specific Aboriginal interest. The interest must be cognizable and the Crown’s assumption of discretion must be such that it invokes responsibility “in the nature of a private law duty”: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 85.
[188] The question to be asked is whether there is an Aboriginal interest sufficiently independent of the Crown’s executive and legislative functions to give rise to a responsibility in the nature of a private law duty. If not, “then no fiduciary duties arise — only public law duties”: Williams Lake, at para. 52.
[189] Where a non-conventional fiduciary duty exists, the Crown is required to act with diligence and in accordance with the honour of the Crown. As Hourigan J.A. noted at para. 616 of Restoule (ONCA), quoting Brown J.’s reasons in Williams Lake, this form of fiduciary duty permits the Crown to balance competing interests:This form of fiduciary duty imposes a less stringent standard than the duty of utmost loyalty incident to an ad hoc fiduciary duty. It requires Canada to act — in relation to the specific Aboriginal interest — with loyalty and in good faith, making full disclosure appropriate to the subject matter and with ordinary diligence. It allows for the necessity of balancing conflicting interests. [Citations omitted.] [190] In Haida Nation, at para. 18, McLachlin C.J. likewise acknowledged that the content of the non-conventional duty may vary to account for the Crown’s other obligations:Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. 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. [Citation omitted.]
[191] While there is a fiduciary relationship between the Crown and Aboriginal peoples, there are limits to the circumstances in which a fiduciary duty can be imposed on the Crown. As Binnie J. noted in Wewaykum, at para. 83, there must be a sufficient assumption of discretionary control by the Crown:[I]t is desirable for the Court to affirm the principle … that not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature, 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. [Citation omitted; emphasis added.] And further, at para. 96, he stated that the Crown wears “many hats” and is “no ordinary fiduciary”:When exercising ordinary government powers in matters involving disputes between Indians and non-Indians, the Crown was (and is) obliged to have regard to the interest of all affected parties, not just the Indian interest. The Crown can be no ordinary fiduciary: it wears many hats and represents many interests, some of which cannot help but be conflicting. [Citation omitted.] The court further discusses the fiduciary issue at paras 193-202, and then concludes that no fiduciary duty existed at paras 203 to 211:(iii) Was there a breach of fiduciary duty?
[203] In this case, the trial judge did not err in concluding that SON had not established a conventional fiduciary duty. The treaty promise cannot be construed as an undertaking by the Crown to forsake the interests of all others in the province and act exclusively for SON’s benefit, which is an essential element of the conventional fiduciary duty test: see Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 75; Elder Advocates, at paras. 36, 61.
[204] Nor did she err in rejecting the imposition of a non-conventional fiduciary duty. The nature of the promise here did not amount to direct administration of access to SON’s lands. The Crown did not control access to those lands and was not the gatekeeper. This case is far different from Guerin, where the Crown assumed all responsibility for dealing with the leasing of Aboriginal lands. Here, the treaty promise did not amount to sufficient control over access to SON’s lands to give rise to a non-conventional fiduciary duty.
[205] Nor was the nature of the duties required of the Crown by Treaty 45 ½ appropriate for fiduciary obligations. Here, the Crown essentially failed to adequately police trespassers. They could have done more to prosecute them. They could have passed more effective legislation. These obligations, however, are ill-suited to fiduciary obligations and are more akin to public law, rather than private law, duties.
[206] While the court noted in Wewaykum, at para. 86, that “[o]nce a reserve is created, the Crown’s fiduciary duty expands to include the protection and preservation of the band’s quasi-proprietary interest in the reserve from exploitation”, we sustain the trial judge’s conclusion that Treaty 45 ½ did not create a reserve. Further, even if the promise to protect SON’s lands from incursions could be viewed as analogous to the protections offered by the creation of a reserve, the promise to police and remove squatters is not sufficient to invoke a non-conventional fiduciary duty. Here, the treaty obligations agreed to by the Crown did not amount to “direct administration” of access to SON lands: Elder Advocates, at para. 53.
[207] The Crown failed to act with sufficient diligence in regard to the treaty promise made to SON. However, there was no question of disloyalty, abuse of power, or breach of trust, as might be associated with a traditional breach of fiduciary duty, although we recognize that the content of a fiduciary duty will vary widely depending on the relationship between the parties and the circumstances: see K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at para. 41.
[208] This was not a case where the Crown was acting in a trustee-like role in the management of Aboriginal land, as was the case in Guerin, or managing resource royalties on behalf of an Aboriginal group, as in Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222. This case is factually and legally distinguishable from Guerin, where the Crown was obliged to hold surrendered land exclusively for the benefit of the surrendering band and its obligations were in the nature of a private law duty: see pp. 385, 387.
[209] Here, the imposition of a fiduciary duty would add nothing to the Crown’s obligations to diligently and purposively perform the treaty promise. As observed in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 105, the Supreme Court “has, over time, substituted the principle of the honour of the Crown for a concept – the fiduciary duty – that, in addition to being limited to certain types of relations that did not always concern the constitutional rights of Aboriginal peoples, had paternalistic overtones”.
[210] Where a Crown obligation is grounded in the honour of the Crown, it may not be necessary to invoke fiduciary duties; the Crown is still obliged to comply with its constitutional obligations in a manner consistent with the honour of the Crown: Mikisew Cree, at paras. 51-52.
[211] We agree with the trial judge that there was no additional fiduciary duty in the circumstances of this case. . Whiteduck v. Ontario
In Whiteduck v. Ontario (Ont CA, 2023) the Court of Appeal considers the 'honour of the Crown' in indigenous law:(3) The Crown is bound by the honour of the Crown in all it does respecting Aboriginal rights
[20] The doctrine of the honour of the Crown operates as a “constitutional principle”[10] that is underpinned by the reconciliation imperative.[11] The honour of the Crown is “always at stake” in the Crown’s dealings with Aboriginal people.[12] This statement “is not a mere incantation, but rather a core precept that finds its application in concrete practices.”[13] Therefore, “[t]he 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.”[14] . Canada v. Witchekan Lake First Nation
In Canada v. Witchekan Lake First Nation (Fed CA, 2023) the Federal Court of Appeal considered a lawsuit by Witchekan Lake First Nation (WLFN) against Canada and Saskatchewan under the 1992 'Saskatchewan Treaty Land Entitlement Framework Agreement' (Framework Agreement), alleging that the Framework Agreement included "an implied term requiring Saskatchewan to provide notice of any impending auction and a reasonable opportunity to purchase lands before they were put up for auction". Saskatchewan moved for summary judgment under Rule 215 of the Federal Court Rules (FCR), maintaining that the matter was essentially one of contractual interpretation. This motion was dismissed at the Federal Court level, but allowed at the Federal Court of Appeal.
In these quotes the court considers the central 'Honour of the Crown' role in interpreting indigenous law, and the limitations on it for modern agreements:IX. Honour of the Crown / Reconciliation
[127] Agreements such as this are important facilitators of reconciliation. This, and the honour of the Crown, requires that the Agreement be interpreted in a fair and purposeful manner, in accordance with those twin objectives. While not a Treaty, the Agreement redresses historical grievances in a fair and orderly manner as agreed by the three parties.
[128] This interpretive frame or lens, however, does not entitle a court to reopen and rewrite the settled terms of a modern agreement negotiated between sophisticated parties over many years and with independent legal advice. Failing to respect the finality and legal certainty of the Framework Agreement undermines reconciliation by allowing parties to renegotiate and to seek more favourable terms than those originally settled on. Allowing the parties "“[t]o seek ambiguities [in the agreement] at all costs”" in the hopes of reinterpreting its provisions can only diminish the value of the settlement, and "“other signing parties [must] not feel themselves at the mercy of constant attempts to renegotiate in the courts”" (Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501, 1992 CanLII 14828 (FCA) at 518-519). A paradigm under which each generation can reopen, renegotiate, and rewrite previously settled matters is untenable (see also Goodswimmer at para. 49; Manitoba Metis Federation Inc v. Brian Pallister et al., 2021 MBCA 47, 458 D.L.R. (4th) 625 [Pallister] at para. 56).
[129] While the Crown can never contract out of its constitutional responsibilities, the honour of the Crown cannot be used to read in obligations supplementary to or different from those that have been expressly agreed to by the parties, or to renegotiate a better deal than that agreed to. The point was made in Peigan 2 at paragraph 13:Counsel for the respondents repeated several times that the Crown cannot contract out of constitutional and treaty rights. This is not disputed. However, in my view it follows that one cannot later “contract in” constitutional and treaty rights arguments into every term of a modern agreement between the parties even where the parties agreed on specific terms to address outstanding issues, in a way that fundamentally changes the terms of the agreement retrospectively. Rather, the honour of the Crown requires that the Crown adhere to and implement the terms of the agreement in an open and fair manner (Wewaykum). [130] Put more simply, the honour of the Crown does not mean that an agreement can be rewritten, ignored or renegotiated simply to seek more favourable terms (Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557 at para. 6; Peigan 2 at paras. 12-13; Pallister at para. 56). The honour of the Crown as it relates to the Agreement requires that the terms of the Agreement be implemented in a fair and forthright manner (Peigan 1 at para. 64; Peigan 2 at para. 12). This serves to protect the First Nations’ interests as much as the signatory governments’. . 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.
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