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Indigenous - Honour of the Crown (2). Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan [remedies]
In Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan (SCC, 2024) the Supreme Court of Canada dismissed a Quebec Crown appeal, that from an allowing by the Federal Court of Appeal, and that from a dismissal of the action at the Federal Court - the action being grounded in the allegation that "Canada and Quebec were in breach of good faith, the obligations flowing from the honour of the Crown or any fiduciary obligation" over a contract whereby the band provided it's own police service and the governments funded it.
Here the court considers remedies for the breach of the honour of the Crown:B. Appropriate Remedy
[198] The appropriate remedy for the breaches found on these two grounds must now be determined. Since Quebec’s conduct can be characterized as both a civil fault and a breach of a public law obligation, the appropriate remedy can be ordered in accordance with the Quebec civil law regime and the public law regime.
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[202] The civil law regime is based on corrective justice; its aim is to place the aggrieved party in the position it would have been in but for the fault committed by another. The injury must both be an immediate and direct consequence of that fault and have been foreseen or foreseeable (arts. 1607 and 1613 C.C.Q.).
[203] As for the public law regime associated with the principle of the honour of the Crown, it is concerned instead with the long‑term relationship between the Crown and Indigenous communities (Haida Nation, at para. 32; Carrier Sekani, at paras. 37‑38; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose‑leaf)), at § 15:20; B. Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 440). The court must order any measure that is necessary to restore the honour of the Crown and thereby foster the goal of reconciliation (Restoule, at para. 277, quoting Haida Nation, at para. 45). This regime is much more flexible than that of the civil law: courts can and must be creative in finding a remedy that advances reconciliation (Restoule, at para. 277, quoting Hogg and Dougan, at p. 292). I would add that the high standard that applies to the honour of the Crown justifies, in part, the exercise of the courts’ discretion to grant a remedy they consider appropriate, a discretion that does not exist under the good faith regime. In turn, this discretion militates against the position of the intervener the Attorney General of Canada that the Court of Appeal first had to consider issuing a declaration before it awarded damages against the governments of Canada and Quebec. Within the sphere of reconciliatory justice, flexibility, not rigidity, is the rule.
[204] Since the two regimes do not have the same purpose and are not governed by the same rules, they do not lend themselves to the same analysis. For these reasons, I will examine the civil law regime and the public law regime in turn.
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(2) Breach of the Obligation To Act With Honour: Restoring the Honour of Crown
[210] A breach of the obligations flowing from the honour of the Crown makes available “the full range of remedies, including damages and other coercive relief, . . . to remedy that breach” (Restoule, at para. 276, citing Roach, at § 15:2). Under the public law regime, the analysis must be focused on restoring the honour of the Crown, which was marred by its wrongful conduct. The purpose of this exercise is not to remedy the consequences of a civil fault, but rather to impose a measure that restores balance to the relationship between the parties and thus places them back on the path to reconciliation.
[211] Given that the exercise is concerned with the relationship between the Crown and Indigenous peoples, it is important to be sensitive to Indigenous perspectives on the manner in which the relationship can be restored. In a leading text on the subject, author Robert Mainville, now a justice of the Quebec Court of Appeal, wrote that “[f]ull consideration should be given to the Aboriginal perspective, and measures should be taken to ensure that the decisions made are consistent with the long‑term interests of the concerned Aboriginal community and with its survival as a viable, distinct culture and society” (p. 127). While these comments were made in the context of a discussion of court‑supervised compensation schemes, they are also helpful in determining the appropriate remedy for a breach of an obligation flowing from the honour of the Crown. This does not mean that the representatives of an Indigenous community can themselves decide, in the court’s place, what remedy is appropriate in the circumstances. Rather, it is a matter of recognizing that the Indigenous perspective in this regard is a factor that the court must take into account. The more reasonable the Indigenous perspective is, the greater the likelihood that the court will accede to it.
[212] On completing his analysis focused on the honour of the Crown, Bouchard J.A. ordered Quebec to pay Pekuakamiulnuatsh Takuhikan $767,745.58, with interest at the legal rate and the additional indemnity, for its failure to comply with its obligation to act honourably in its contractual dealings with the respondent (C.A. reasons, at para. 125).
[213] Should this remedy be upheld?
[214] In this case, the relationship between the parties was undermined by the intransigent attitude adopted by Quebec at the stage of renewing the tripartite agreements during the period at issue. That attitude served Quebec’s interests. Quebec, which is responsible for ensuring the safety of everyone in the province, knew that the SQ’s services were ill‑adapted to the realities of Indigenous communities and could even be harmful to them. By renewing the agreements without genuinely negotiating their funding terms, Quebec was able to give the community of Mashteuiatsh access to Indigenous policing while at the same time limiting its own expenditures and ensuring that Canada continued to partially fund the police force.
[215] As I mentioned above, Quebec’s intransigent attitude made Pekuakamiulnuatsh Takuhikan feel like there was a “knife to the throat” (C.A. reasons, at para. 101): either it continued to impoverish itself to maintain the SPM and preserve the progress that the SPM represented in terms of self‑government, or it abolished the SPM, which meant both returning to the SQ’s inadequate services and suffering a setback with respect to self‑government (paras. 136‑37). That “knife to the throat” was what made the respondent agree to renew the tripartite agreements on terms that it could not genuinely negotiate, which led to it assuming deficits totalling $1,599,469.95 during the period at issue. That state of affairs also forced the SPM to operate “at the very lowest of the lowest”, as its officers were not even trained in the use of traffic radar or breathalyzers (paras. 99 and 114). This meant that the quality of the services provided to the community — and hence the community itself — suffered because of the intransigence and the underfunding that resulted therefrom.
[216] Thus, despite the “respect” and “transparency” noted by the trial judge — who did not consider the principle of the honour of the Crown — Quebec’s attitude benefited it and harmed Pekuakamiulnuatsh Takuhikan, not only in financial terms but also from the standpoint of the quality of policing and its dignity, as its freedom of choice was not respected. By imposing such a difficult choice on the respondent despite knowing that the SQ’s services were ill‑adapted and possibly harmful, Quebec did not deal with it on an equal footing and did not display the [translation] “spirit of mutual cooperation and respect” referred to by the Minister and the federal Policy (Journal des débats, at p. 1254 (S. Ménard)). This is also part of the damage caused to the relationship, which must now be repaired.
[217] Given the fact that Quebec’s dishonourable conduct served its interests and harmed Pekuakamiulnuatsh Takuhikan and the community it represents in financial terms and from the standpoint of public safety and dignity, and also given the perspective of this community, which has always sought an award of damages, I am of the view that the Court of Appeal could conclude that repairing this damage requires such a remedy.
[218] Canada, as an intervener, submits that the most appropriate remedy to give effect to the principle of the honour of the Crown is [translation] “generally” a declaration (I.F., at para. 29). It notes that the Court of Appeal did not consider issuing a declaration rather than awarding damages. As an intervener, Canada takes no position on the appropriate remedy in this case.
[219] It is true, as noted for a unanimous Court by O’Bonsawin J., that this remedy “is especially appropriate given the non‑adversarial, trust‑like relationship Canadian governments are supposed to have with Aboriginal people” (Shot Both Sides v. Canada, 2024 SCC 12, at para. 72, quoting Roach, at § 15:31). A declaration helps parties resolve their dispute in a manner that is collaborative rather than conflictual and that upholds their respective rights and obligations. A measure of this kind is more likely to move them closer to the goal of reconciliation than a remedy imposed by the courts following adversarial proceedings (see Reference, at para. 77; Desautel, at para. 87; Haida Nation, at para. 20; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24). In MMF and Shot Both Sides, this Court found that a declaration that would assist the Indigenous party in future negotiations with the Crown was a measure that would allow issues to be resolved in a practical way and was therefore an appropriate remedy.
[220] That being said, it is also true that other remedies, including an award of damages, are available to a court (Restoule, at para. 288; see also Carrier Sekani, at para. 37). The remedy relating to the honour of the Crown will vary with the circumstances of each case; no type of remedy takes precedence over the others. I reiterate that, from the start of the proceedings, Pekuakamiulnuatsh Takuhikan has been claiming damages for what it considers to be dishonourable conduct and that it has not asked for a declaration to be issued. This case thus differs from Shot Both Sides, in which the Indigenous party expressly sought such a declaration (para. 63). It should also be noted that, before this Court, Quebec has not challenged the fact that damages were awarded as a remedy in this case; rather, it is their quantum that it disputes (A.F., at paras. 126‑28). In this sense, the case can also be distinguished from Restoule, in which a government party argued that only a declaration was available to remedy the breach in question (para. 269).
[221] Accordingly, I must now consider the quantum of damages relating to the honour of the Crown and whether the case should be remanded to the Superior Court as suggested by Quebec.
[222] With regard to the quantum, I note that Quebec’s arguments on the question of damages are centred on the logic of contractual liability and corrective justice that it encourages us to adopt. Quebec has made no argument concerning the damages awarded by Bouchard J.A. further to his analysis relating to the principle of the honour of the Crown. Quebec says nothing about the function of damages as a remedy meant to repair its relationship with Pekuakamiulnuatsh Takuhikan. Nor does it say anything about the specific nature of the remedy required for a breach of an obligation flowing from the honour of the Crown, or about what the author Mainville describes as a “special approach that ensures that the reconciliation of Aboriginal and mainstream Canadian societies can be achieved in a context of fairness and justice for both societies” (p. 109).
[223] While calculating the quantum of damages in accordance with the rules of the civil law requires an assessment that the Court is not in a position to make, we are in an entirely different context here. The task is to determine the appropriate remedy for a breach of an obligation flowing from the honour of the Crown; in this sense, a court’s analysis must instead be focused on reconciliatory justice to ensure that the order made will have the effect of restoring the honour of the Crown. Once again, I agree with Mainville, who explains in his text that “the use of the compensation monies . . . should be consistent with the preservation of the honour of the Crown and with the interests of both present and future generations of the affected Aboriginal Peoples” (p. 127). As this Court recognized in Restoule, courts must be creative in determining the appropriate remedy where this is necessary to restore the honour of the Crown (para. 277).
[224] The correct amount to be awarded as damages for a breach of an obligation flowing from the honour of the Crown is a highly contextual issue. In this case, I am of the view that the amount determined by the Court of Appeal should be upheld given the particular circumstances of the case, having regard to the purpose of the damages, which serve not only to compensate for past injury but also to restore the honour of the Crown for the future. To this can be added the difficulty of quantifying the financial injury sustained by Pekuakamiulnuatsh Takuhikan and the relevance, in light of the principle of the honour of the Crown, of the additional financial contributions provided by Quebec in this case. Moreover, remanding the case to the Superior Court for this sort of assessment — as opposed to an assessment of the damages related solely to civil fault — would, in my opinion, be contrary to the principle of proportionality that must guide the courts as an organizing principle of the law of civil procedure.
[225] As a result of Quebec’s conduct, the respondent was deprived of the opportunity to negotiate more favourable funding terms with the Government of Quebec, which resulted in recurring deficits related to the operating costs of the Mashteuiatsh police force. It is not possible to determine the position the respondent would be in today but for the Crown’s dishonourable conduct. However, since it is the Crown’s dishonourable conduct itself that makes this impossible, Pekuakamiulnuatsh Takuhikan should not be penalized. The other injury caused to it, from the standpoint of the quality of policing and its dignity, is also difficult to quantify with any precision.
[226] The supplemental assistance provided by Quebec during the period at issue does not call into question the remedy awarded by the Court of Appeal. In fact, those additional resources did not actually remedy the injury sustained by Pekuakamiulnuatsh Takuhikan and its community in terms of finances, the quality of policing or respect for their dignity, nor did they serve to restore the relationship between the parties; rather, their effect was to prevent the SPM from being abolished while perpetuating its precarious situation and the consequences thereof.
[227] The witnesses for Canada and Quebec acknowledged that their contributions were only makeshift solutions. At trial, Canada’s representative, Mr. Bourdage, described the $400,000 in supplemental assistance provided by Canada, an amount that corresponded to the supplemental assistance provided by Quebec at the same time, as a “Band‑Aid” or [translation] “small bandage” that would “buy a little time” or “stem the bleeding” in order to “keep the lights on a bit longer” and “prevent the police station from closing” (A.R., vol. XVII, at p. 9). He continued by stating that Canada [translation] “wanted to avoid putting money directly on the salary item because . . . there was, after all, some reluctance to commit [to maintaining that level of funding]” (ibid.). Similarly, his colleague from Quebec stated that Quebec wanted to provide additional support to Indigenous communities that needed it, [translation] “but not with salaries, for the reasons [Mr. Bourdage] explained . . . in his testimony” (p. 66). These excerpts clearly show that the supplemental assistance was not intended to actually remedy the injury caused by the dishonourable conduct of the federal and provincial governments nor to restore the relationship with the respondent, but rather to maintain the SPM without providing any meaningful solutions to the persistent problems resulting from that conduct.
[228] In short, given the magnitude of the injury caused to Pekuakamiulnuatsh Takuhikan and the community it represents and given the relatively modest nature of its claim, I see no reason to vary the Court of Appeal’s order so as to take into account the supplemental assistance provided by Quebec, which helped ensure the SPM’s continued existence without, however, rectifying its precarious situation or repairing the relationship between the parties.
[229] I would also note that it is essential to pay particular attention to proportionality when a breach of an obligation flowing from the honour of the Crown is in issue. In such circumstances, the path to restoring the honour of the Crown does not always involve the strict application of private law principles. Nor does it always require insistence on following procedures that are burdensome, given the amount at stake, in order to establish the consequences of dishonourable conduct. Reconciliatory justice requires both adaptability and flexibility. This is an example of where a “culture shift” calls upon judges to manage the legal process “in line with the principle of proportionality” (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 32; see Code of Civil Procedure, CQLR, c. C‑25.01, art. 18).
[230] It seems clear to me that the circumstances of this case raise issues of proportionality. In my view, the ends of justice — which here means reconciliatory justice — would not be served by remanding the case to the Superior Court. The deficits are not attributable to any mismanagement of the SPM. They have been accumulating for more than a decade, and Pekuakamiulnuatsh Takuhikan initiated these proceedings in December 2017, about seven years ago. It has already devoted an enormous amount of time and effort to asserting its rights under the tripartite agreements. Remitting the case to the trial court would add to the delays already experienced by the respondent (and Quebec) without any clear indication that the judge would arrive at a different quantum. In these circumstances, and given the amount at stake, it would not be in the interests of justice to prolong the process any further.
[231] In light of their distinct purposes, one cannot exclude the possibility that the private law remedy and the public law remedy could complement one another. I would note, however, that the determination of the quantum of damages awarded for a breach of the obligations flowing from the honour of the Crown should take into account any remedies granted concurrently under private law, notably in order to avoid double compensation (see, by analogy, Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para. 36). It is true that the distinct nature of a claim for a breach of the obligation associated with the honour of the Crown means that this public law remedy is not a complete substitute for that of private law. However, as authors Jean‑Louis Baudouin, Patrice Deslauriers and Benoît Moore observe regarding the remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms, the State may nonetheless argue in defence that the private law remedy is capable of sufficiently addressing the breach (La responsabilité civile (9th ed. 2020), at No. 1‑140, citing Ward, at paras. 34‑35). That being so, I note that upholding the amount awarded by the Court of Appeal for breach of the honour of the Crown is determinative of the outcome of the appeal in this case.
[232] In the end, I would rely on the flexibility inherent in the assessment of damages in this public law context and uphold, without interfering with the quantum, the remedy granted by the Court of Appeal, which is more conducive than any other measure to restoring the honour of the Crown. The grounds that have led me to find a breach by Quebec and to uphold the award made against it by the Court of Appeal suffice to identify Quebec’s dishonourable conduct and to provide the parties with guidance for the future. For these reasons, and in light of the compensation awarded to Pekuakamiulnuatsh Takuhikan, I am of the view that a declaration would be of no practical utility in this case (see Shot Both Sides, at para. 68).
[233] In upholding the remedy granted by the Court of Appeal, I am not taking it upon myself to “rewrite” the tripartite agreements. I am sensitive to the argument put forward by the Attorney General of Saskatchewan, relying, inter alia, on Witchekan Lake, at paras. 127‑31, that the honour of the Crown should not be used to add to a contract, as an implied obligation, a “hitherto unknown constitutional funding obligation” that would conflict with the terms freely agreed upon by the parties (I.F., at para. 35). I am mindful of the fact that the honour of the Crown speaks to how agreements are to be carried out and is not a cause of action itself (MMF, at para. 73). Accordingly, I share the view expressed by Rennie J.A. in Witchekan Lake: even when the honour of the Crown applies to a contract, the court’s role cannot be “to rewrite, under the guise of reconciliation, the bargain struck” (para. 131).
[234] That is certainly not what I propose to do here.
[235] I would not interfere with the Government of Quebec’s contractual undertaking to fund the police force up to a “maximum amount” set for each fiscal year (cl. 4.2.1) or with Pekuakamiulnuatsh Takuhikan’s contractual undertaking to assume responsibility for the deficits accumulated during the same period (cl. 4.5.2). Here, the remedy sought and granted by the Court of Appeal is intended to allow the endeavour of maintaining an Indigenous police force in Mashteuiatsh to regain momentum within a nation‑to‑nation relationship that is renewed for the future, and in accordance with the constitutional principle of reconciliation. In my view, this appears entirely appropriate.
[236] The relationship between the Crown and Pekuakamiulnuatsh Takuhikan is ongoing. As the Court stated in Taku River, “[i]n 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” (para. 24 (emphasis added)). Quebec will be expected to conduct itself honourably in the future when carrying out similar agreements, in keeping with the principles laid down in this judgment. . 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 considered the role of the 'Honour of the Crown' in the interpretation of indigenous treaties (ruling it out as a cause of action):(1) The Honour of the Crown Is Not a Cause of Action but Can Generate Various Duties
[219] As already noted, the honour of the Crown is a guiding constitutional principle that informs the interpretation of Aboriginal treaties. It also plays a crucial role in the implementation of treaties to ensure that no dishonour is brought to the government and, through this, to the Crown (Haida Nation, at para. 19; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 33; Henderson, at p. 887). The honour of the Crown imposes upon governments “a high standard of honourable dealing” with Indigenous peoples (R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1109; Manitoba Metis, at para. 69). It is a flexible and capacious doctrine that can “measure and regulate conduct of the government in relation to [A]boriginal peoples” (J. T. S. McCabe, The Honour of the Crown and its Fiduciary Duties to Aboriginal Peoples (2008), at p. 53).
[220] Although the honour of the Crown is a powerful constitutional doctrine, it “is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled” (Manitoba Metis, at para. 73 (emphasis in original)). At the same time, it is “not a mere incantation, but rather a core precept that finds its application in concrete practices”, and “gives rise to different duties in different circumstances” (Haida Nation, at paras. 16 and 18). The specific duties flowing from the honour of the Crown depend “heavily” on the context in which that honour is engaged (Mikisew Cree 2018, at para. 24; Manitoba Metis, at para. 74; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 25).
[221] For example, in Haida Nation, this Court held that the honour of the Crown gives rise to a duty to consult when the Crown contemplates an action that will affect as yet unproven Aboriginal rights or title (para. 35) and could entail a duty of honourable negotiation (para. 20). In Badger, this Court said that the honour of the Crown requires avoiding any appearance of sharp-dealing (para. 41). In Marshall, the honour of the Crown was used, absent a complete written treaty text, to ground a duty to purposively interpret treaty promises to further reconciliation (paras. 41 and 49-52). In Wewaykum, the Court recognized that the honour of the Crown gives rise to a fiduciary duty where the Crown assumes discretionary control over a cognizable Aboriginal interest (paras. 79 and 81). And in Manitoba Metis, the honour of the Crown imposed a “duty of diligent, purposive fulfillment” of the constitutional obligation set out in s. 31 of the Manitoba Act, 1870, S.C. 1870, c. 3 (para. 94). ... . Little Black Bear First Nation v. Kawacatoose First Nation
In Little Black Bear First Nation v. Kawacatoose First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed a JR challenging a Specific Claims Tribunal (SCT) claim, here where the SCT excluded certain First Nations as beneficiaries from Indian Reserve No. IR 80A.
Here the court considers the Honour of the Crown:[42] With respect to honour of the Crown, at paragraph 147 of the Decision the Tribunal referred also to the following excerpts from Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 [Manitoba Metis]:[147] . . . “The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples . . .” (para 73(4)). The Court continued that the “honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation”, and the “honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests”. ....
[133] The Tribunal was aware of the Supreme Court’s jurisprudence on honour of the Crown principles (Decision at paras. 145-147). These principles include the comments from Manitoba Metis at paragraphs 77-78 that "“the honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation,”" and the "“honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests.”" However, as stated above the Tribunal concluded that these principles cannot be applied to require it to "“import or expand”" the Crown’s intent with respect to IR 80A "“when the evidence indicates otherwise”" (Decision at para. 318).
[134] The Tribunal’s conclusion is supported by two recent appellate level decisions involving the interpretation of treaties.
[135] In one, the Court of Appeal for British Columbia stated that the honour of the Crown is not to be used to alter promises made by the Crown: "“The honour of the Crown is not applied to rewrite history. It should not be used to retroactively alter the promises the Crown actually made to Indigenous peoples to make these promises more honourable.”" (West Moberly First Nations v. British Columbia, 2020 BCCA 138 at para. 416, leave to appeal to SCC refused, 39292 (21 January 2021)).
[136] The second case is a recent decision of the Court of Appeal for Ontario. In Fletcher v. Ontario, 2024 ONCA 148 at para. 125 [Fletcher], the Court noted with approval the following comment made by the trial judge: "“[I]t is not the role of treaty interpretation to distort the meaning of the treaty in an attempt to redress an historical wrong.”" The appellate Court concluded that this statement was consistent with the jurisprudence that "“generous rules of interpretation should not be confused with a vague sense of after-the-fact largesse”" (citing Marshall v. Canada, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456, at para. 14 [Marshall]). . Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a JR brought by an indigenous organization that challenged statutory and regulatory amendment that modified Environmental Assessment Act (EAA) law.
Here the court considers whether the indigenous 'duty to consult' applies to statutory amendments (it didn't):[1] On June 25, 2020, Ontario[1] revoked MNR-75, a regulation pertaining to forest management planning that had been enacted under the Environmental Assessment Act, R.S.O. 1990, c. E.18 (the “EAA”). Ontario then exempted forest management in certain parts of Ontario from the purview of the EAA, effective July 1, 2020.[2] Finally, on July 21, 2020, the Ontario legislature passed Bill 197[3], making amendments to the EAA that:i. removed the presumption that public undertakings will be subject to environmental assessments;
ii. granted the Minister of the Environment, Conservation and Parks (“MECP”) discretion to designate which projects will be subject to environmental assessment; and
iii. for certain activities, granted exemptions from otherwise applicable environmental assessment procedures. ....
[7] I agree with the Divisional Court that Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 (“Mikisew Cree #2”) precludes any finding that a duty to consult arises in the law-making process except, perhaps, in very limited circumstances, none of which were applicable in this case.
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(1) The Enactment of Bill 197 Without Consultation
[44] The appellants submit that the Divisional Court erred in holding that Mikisew Cree #2 disposed of its claim that their exclusion from deliberations on Bill 197 implicated the honour of the Crown. They submit that the Divisional Court took too narrow of a view, considering this claim only from the perspective of whether the Crown had a duty to consult the appellants during the law-making process. The honour of the Crown is broader than the duty to consult. It requires the Crown to act honourably in its dealings with Indigenous peoples, irrespective of the duty to consult. The appellants argue not that their exclusion from the law-making process dishonoured the Crown, but that the Crown’s unilateral termination of consultations to which it had committed itself by Ministers’ statements and the EBR did so, as did the retroactive exemption of Bill 197 from the EBR’s consultation requirements. The appellants argue that this point was not in issue – and therefore not addressed – in Mikisew Cree #2.
[45] The appellants also argue that Greenpeace does not dispose of this claim. In that case, environmental activists unsuccessfully challenged Ontario’s decision to retroactively exempt amendments to environmental legislation from the EBR’s consultation requirements. The applicants in that case were not Indigenous and they neither did nor could advance a claim predicated on the honour of the Crown.
[46] I do not accept these arguments. The honour of the Crown is an interpretive principle, not a freestanding cause of action. It informs how the Crown must observe certain obligations – including its fiduciary duties with respect to Aboriginal interests and its treaty and statutory commitments to Indigenous peoples – but it does not itself form one of those obligations: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73. The question we must answer is therefore whether Ontario’s decision to abandon its consultation efforts on Bill 197 engaged any Crown obligation to which the honour of the Crown could attach.
[47] Although there are four sets of reasons in Mikisew Cree #2, the majority view can fairly be taken to be that the duty to consult does not apply to “the law-making process”: at paras. 1-2 (per Karakatsanis J.), 135 (per Brown J.), 150 (per Rowe J.). If Bill 197 adversely impacts any Aboriginal interests protected under s. 35(1) of the Constitution Act, 1982, the proper avenue for redress is a constitutional challenge to the legislation according to the framework set out in R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075: Mikisew Cree #2, at paras. 31, 48 (per Karakatsanis J.), 145 (per Brown J.), 151-52 (per Rowe J.).
[48] If the duty to consult does not apply to the process of enacting Bill 197, could it arise because a representative of the government said there would be consultations before passing the legislation? In my view, this argument is not tenable. The appellants do not argue that a statement that consultation will occur rises to the level of a recognized s. 35(1) obligation to which the honour of the Crown attaches.
[49] Nor do I see how, if law-making is exempt from the duty to consult, the honour of the Crown is engaged when that law-making is aimed at changing legislative provisions which previously contemplated consultation about legislation.
[50] It is difficult to see how Ontario’s conduct leading up to the passage of Bill 197 advances reconciliation. But that is not the question we have to decide. Despite Ontario’s conduct leading up to the passage of Bill 197, I see no right which implicates the honour of the Crown on the facts presented. . Fletcher v. Ontario
In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had disregarded a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the band population - but was that the 1906 population or the modern population (ie. the 'crystallization date')? The trial court found it to be the 1906 population.
Here the court considers the 'Honour of the Crown' in this context:[122] The principle that the honour of the Crown is always at stake in the Crown’s dealings is well-founded in case law: Marshall, at para. 51; R. v. Taylor and Williams (1982), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360, at pp. 235-36; Whiteduck v. Ontario, 2023 ONCA 543, at para. 20. As McLachlin C.J. wrote in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 16, the principle “is not a mere incantation, but rather a core precept that finds its application in concrete practices”: see also Restoule, at para. 234. In the following oft-cited quotation from 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” ... [Citations omitted.] [123] The honour of the Crown is to be presumed, and it “infuses” the process of treaty interpretation: Haida Nation, at para 19. It is “an important anchor”: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42; Restoule, at paras. 231-242.
[124] In the case of treaty obligations, the honour of the Crown arises both with respect to the interpretation of treaty obligations, and to their implementation, that is, whether the obligations have been breached. These two components are very clearly articulated by Karakatsanis J. in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 28: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. [Citations omitted.] [125] Returning to the appellants’ arguments, I agree that the honour of the Crown applies to the interpretation stage, which is the stage before the court in this appeal. This stage, however, is further defined by the parties’ agreement, expressed in the Sproat Order, which provides that the sole issue before the trial judge was that of interpreting the Treaty to determine the crystallization date. Put another way, the crystallization date issue was premised on the parties’ agreement that they had entered into a binding treaty in 1906. The appellants are thus precluded from asserting sharp dealing in the course of the treaty negotiation process just as the respondents are precluded from asserting the Missanabie Cree were not entitled to a reserve. Moreover, as set out above, I see no error in the trial judge’s purposive interpretation of the reserve clause. The trial judge was expressly alive to the foundational principle of the honour of the Crown, but also noted: “[I]t is not the role of treaty interpretation to distort the meaning of the treaty in an attempt to redress an historical wrong”. In this respect, he was in line with the jurisprudence that “‘generous’ rules of interpretation should not be confused with a vague sense of after-the-fact largesse” and that the honour of the Crown “cannot alter the terms of the treaty by exceeding what ‘is possible on the language’ or realistic”: Marshall, at paras. 14 and 78. He carefully reviewed the text of the Treaty and the evidentiary record in his search for common intention, including that the expert witnesses jointly stated that they were unable to determine why a reserve was not provided to the Missanabie Cree at the time. In short, the trial judge applied the correct law within the context of the Marshall framework and gave full consideration to the honour of the Crown to the extent it was appropriate to do so given the scope of the issue before him. . Waldron v. Canada (Attorney General)
In Waldron v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers some interesting contractual interpretation issues, here in an indigenous class-action settlement. In these quotes, the court comments on limitations of the 'Honour of the Crown' principle, here in relation to contractual interpretation of the settlement:[93] In Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 68, the Supreme Court observed that “not all interactions between the Crown and Aboriginal people engage [the honour of the Crown]” and that “[i]n the past, it has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty.”
[94] That is not the situation here. As the supervising judge noted in granting settlement approval (2019 FC 1075 at para. 129), this Court has recognized that while the statement of claim in this proceeding alleged a breach of Aboriginal rights, the IDSSA represents the settlement of tort-based claims involving only individual rights, and has no impact on any collectively held Aboriginal or treaty rights: Cree Nation of Eeyou Istchee (General Council) v. McLean, 2019 FCA 185 at paras. 8, 11; Nunavut Tunngavik Incorporated v. McLean, 2019 FCA 186 at paras. 8, 11; Whapmagoostui First Nation v. McLean, 2019 FCA 187 at para. 11. Nor is this proceeding a contest solely between Indigenous peoples on one hand and the Crown on the other: there are Indigenous individuals—including the representative plaintiffs—on both sides of the issues.
[95] Where the honour of the Crown is engaged in negotiations, it requires among other things that the Crown’s representatives not engage in, or even appear to engage in, “sharp dealing”: Manitoba Metis at para. 73. But here it has not been submitted, as I understand it, that there was any “sharp dealing” in the negotiation of a settlement agreement that was judicially approved as fair and reasonable.
[96] Moreover, as this Court stated in Saskatchewan (Attorney General) v. Witchekan Lake First Nation, 2023 FCA 105 at para. 128, leave to appeal to S.C.C. refused, 40870 (21 Dec 2023), interpretation of a modern agreement from the perspective of the honour of the Crown “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.” Nor can the honour of the Crown be “used to read in obligations supplementary to or different from those that have been expressly agreed to by the parties […]”: Witchekan Lake First Nation at para. 129; George Gordon First Nation v. Saskatchewan, 2022 SKCA 41 at para. 172, leave to appeal refused, 2023 CanLII 19734 (SCC). . 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.
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