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Indigenous - Honour of the Crown (3). Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan [duties]
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 the obligations (aka duties) that the honour of the Crown entails:(c) Obligation Flowing From the Honour of the Crown
[185] Because it is not a cause of action itself, the principle of the honour of the Crown is expressed through the specific obligations to which it gives rise (Restoule, at para. 220; MMF, at para. 73; Haida Nation, at para. 18). The content of these obligations varies with the circumstances. On the basis of this Court’s teachings with respect to treaties, I am of the view that the honour of the Crown imposes a duty on Quebec to perform the tripartite agreements with honour and integrity. This duty alone is a sufficient basis for dismissing the appeal. Consequently, it is not necessary for the purposes of this case to decide whether Quebec also had a sui generis fiduciary obligation or an obligation to act with diligence in fulfilling any promise made.
[186] In the context of treaty making and implementation, this Court has long recognized the Crown’s obligation to negotiate, interpret and apply treaties with honour and integrity while avoiding even the appearance of “sharp dealing” (Haida Nation, at paras. 19 and 42, quoting R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 41). This obligation can be transposed to the contractual context when this context also involves reconciliation between the Crown and Indigenous communities.
[187] By this I do not mean to say that the agreement becomes a treaty like the treaties protected by s. 35 of the Constitution Act, 1982. Rather, it is a matter of recognizing that the honour of the Crown requires the Crown, in negotiating and performing an agreement that has reconciliation as its backdrop, to meet a standard of conduct that is higher than in the context of an ordinary contractual relationship (Pallister, at para. 56; Witchekan Lake, at para. 130; see also Motard and Chartrand, at p. 201).
[188] The higher standard of conduct to which the Crown is subject creates obligations that are superimposed on contractual obligations. The content of the contract is determined by its provisions and by the obligations attaching to it under the provisions of the Civil Code. Where the principle of the honour of the Crown applies, not only is the content of the contract interpreted generously (Badger, at para. 41), but an additional public law obligation is superimposed on the contractual obligations, namely the Crown’s obligation to act with honour and integrity in performing the contract. As this Court has observed in the treaty context, the honour of the Crown “lead[s] to requirements such as honourable negotiation and the avoidance of the appearance of sharp dealing” (MMF, at para. 73). In the contractual context, the honour of the Crown therefore does not change the terms of the agreement, but rather modifies how the obligations found therein are performed by requiring the Crown to act in a manner that fosters reconciliation. The honour of the Crown imposes this additional obligation only on the Crown, not on the Indigenous group that is also a party to the contract.
[189] What does it mean for the Crown to act with honour and integrity in negotiating and performing an agreement? The cases in which this question has been considered in the treaty context are instructive.
[190] When the Crown decides to enter into a contractual relationship that engages its honour, it must act honourably, with integrity and in such a way as to avoid even the appearance of “sharp dealing” (Haida Nation, at para. 19; Badger, at para. 41). As the expression “sharp dealing” suggests, this standard of conduct demands more than the mere absence of dishonesty. In particular, it requires the Crown not to adopt an intransigent attitude. The Crown must therefore come to the negotiating table with an open mind and with the goal of engaging in genuine negotiations with a view to entering into an agreement. The Crown should not enter into negotiations without intending to keep its promises, nor should it attempt to coerce or unilaterally impose an outcome (A. F. Martin and C. Telfer, “The Impact of the Honour of the Crown on the Ethical Obligations of Government Lawyers: A Duty of Honourable Dealing” (2018), 41 Dal. L.J. 443, at p. 459). Similarly, the Crown cannot change its position for the sole purpose of delaying or ending negotiations (Kaska Dena Council v. Canada, 2018 FC 218, at para. 43).
[191] Of course, the honour of the Crown does not require that the negotiations ultimately be successful; as is the case in any negotiation, either party may withdraw where an impasse is reached (Chemainus First Nation v. British Columbia Assets and Lands Corp., 1999 CanLII 6298 (BC SC), [1999] 3 C.N.L.R. 8 (B.C.S.C.), at para. 26). However, when it is involved in such a process, the Crown must adopt a standard of conduct higher than the one it would adopt in the private law context and must act in such a way as to maximize the chances of success.
[192] Once an agreement has been entered into, the Crown must conduct itself with honour and integrity in performing its obligations. This means, among other things, that it must construe the terms of the agreement generously and comply with them scrupulously while avoiding any breach of them (Badger, at para. 41). The Crown must act honourably in any negotiations to change or renew the agreement (see, e.g., Gitanyow First Nation v. Canada, 1999 CanLII 6180 (BC SC), [1999] 3 C.N.L.R. 89 (B.C.S.C.)). It must avoid taking advantage of the imbalance in its relationship with Indigenous peoples by, for example, agreeing to renew its undertakings on terms that are more favourable to it without having genuinely negotiated first (see F. Hoehn, “The Duty to Negotiate and the Ethos of Reconciliation” (2020), 83 Sask. L. Rev. 1, at p. 20).
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[195] That conduct, which amounts to a breach of good faith, also represents a breach of the obligation to perform the tripartite agreements with honour and integrity, which imposes a higher standard. In addition to prohibiting the Crown from defrauding or misleading another party, the honour of the Crown requires it to meaningfully engage in genuine negotiations in a manner conducive to maintaining a relationship that can support the ongoing process of reconciliation between the Crown and Indigenous peoples (see Badger, at para. 41; Haida Nation, at para. 19; MMF, at para. 73; Chemainus, at para. 26). . Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan
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.
The court considers the honour of the Crown, here primarily in the Quebec contractual context - but also exploring a broad scenario of circumstances where the application of the honour of the Crown may be at issue, which turns mostly on a 'reconciliation' purpose:(2) The Honour of the Crown, a Source of Public Law Obligations
[140] Pekuakamiulnuatsh Takuhikan submits that the tripartite agreements must be [translation] “implemented” in a manner consistent with the honour of the Crown, which gives rise to obligations for Quebec (outline of argument, at p. 1, in respondent’s condensed book, Tab 1), including the duty to negotiate the renewal of the tripartite agreements with honour and integrity (R.F., at para. 99). According to it, Quebec did not comply with this duty.
[141] Quebec, on the other hand, argues that the honour of the Crown does not apply to its undertakings under the tripartite agreements, because the agreements fall within a [translation] “category of agreements relating to public administration [that] is not subject to the same constitutional requirements as the negotiation of treaties with Indigenous peoples or the implementation of explicit obligations set out in the Constitution” (A.F., at para. 24). According to Quebec, the provision of police services [translation] “is a matter relevant to all Canadians and is not part of the distinctive way of life of the members of the Pekuakamiulnuatsh First Nation” (para. 36, quoting Sup. Ct. reasons, at para. 85). It is therefore not, Quebec says, a matter related to the reconciliation of Indigenous rights and interests, whether Aboriginal or treaty, and the Crown’s assertion of sovereignty.
[142] In the alternative, Quebec submits that, in any event, it fulfilled the obligations flowing from the honour of the Crown because it acted honourably in the negotiation, interpretation and implementation of the agreements entered into with Pekuakamiulnuatsh Takuhikan. Pekuakamiulnuatsh Takuhikan counters that, rather than engaging in real negotiations to renew the agreements, Quebec imposed arbitrary funding terms on it without considering the real costs of providing culturally appropriate police services of an acceptable quality. Not only does that conduct constitute a breach of the obligation to carry out the agreements in good faith, but, according to the respondent, it is also a violation of the principle of the honour of the Crown, which engages a higher standard of conduct.
[143] This fundamental disagreement raises, for the first time in this Court, the question of whether the principle of the honour of the Crown applies to a contractual undertaking given by the Crown to an Indigenous group.
[144] Although this question was not raised by the parties, I will note for the sake of clarity that the “Government of Quebec”, as this term is used in the agreements, refers in this context to both the “State” within the meaning of art. 1376 C.C.Q. and the “Crown” in right of the province with respect to the honour of the Crown. There is no need to say any more about this here (see M.‑F. Fortin, “L’État québécois et la Couronne canadienne: conception de la puissance publique à la lumière du droit de la responsabilité de la Couronne” (2022), 56 R.J.T.U.M. 379, at pp. 413‑15).
[145] In what follows, we will see that, unlike good faith, the honour of the Crown does not apply to every contractual undertaking given by the Crown to an Indigenous entity. We must begin by identifying the test that can be used in this case to determine whether a contract is subject to the honour of the Crown. Once this test has been established, we will look at the tripartite agreements to ascertain whether they satisfy it. For this purpose, the Court will have to determine the [translation] “characterization” of the agreements, that is, it will have to carry out the legal exercise that leads to “the linking of the contract at issue to a normative category that can serve to determine the applicable legal regime” (Lluelles and Moore, at No. 1729). If the agreements satisfy this test, we must then conclude that Quebec was required to perform the tripartite agreements in an honourable manner, and the question will be whether Quebec complied with this obligation.
(a) Application of the Honour of the Crown to Contractual Undertakings
[146] Our task at this first stage of the analysis is to identify the relevant test in this case for determining whether the honour of the Crown applies to an agreement that is not constitutional in nature. As I noted above, not all contracts between the State and Indigenous peoples engage this principle. Since the Court has never addressed this question, I propose to proceed by analogy with the jurisprudence recognizing situations in which the honour of the Crown is engaged in order to draw therefrom the principles underlying its application.
[147] The honour of the Crown requires the Crown to act honourably in its dealings with Indigenous peoples. This principle 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” (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 21, per Karakatsanis J., quoting Haida Nation, at para. 32, and citing MMF, at para. 66; see also Hogg and Dougan). That practice gave rise to a “special relationship” between the Crown and Indigenous peoples (MMF, at para. 67, quoting Beckman, at para. 62).
[148] The underlying purpose of the principle of the honour of the Crown is to facilitate the reconciliation of the Crown’s interests and those of Indigenous peoples, including by promoting negotiation and the just settlement of Indigenous claims (Mikisew Cree, at para. 22; see also MMF, at para. 66; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24; Desautel, at para. 22). This purpose transcends the corrective justice at the heart of private law to make room for repairing and maintaining the special relationship with the Indigenous peoples on whom European laws and customs were imposed (see MMF, at para. 67; Haida Nation, at para. 17). This is what I will call justice linked to reconciliation or reconciliatory justice.
[149] I hasten to add that the principle of the honour of the Crown is not a cause of action. It “speaks to how obligations that attract it must be fulfilled” (MMF, at para. 73 (emphasis in original)). The honour of the Crown is a constitutional principle that “looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, ‘mutually respectful long‑term relationship’” (Desautel, at para. 30, quoting Beckman, at para. 10, and citing Mikisew Cree, at para. 21; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15, at paras. 21 and 28).
[150] This body of jurisprudence, which is well established, forms part of the “jus commune” to which the Preliminary Provision of the Civil Code refers. The Court has previously determined that this “jus commune” is not limited to private law but must be understood in an expansive manner so as to give the Civil Code “the broadest possible operational scope” (Prud’homme, at para. 29, citing A.‑F. Bisson, “La Disposition préliminaire du Code civil du Québec” (1999), 44 McGill L.J. 539). More specifically, the honour of the Crown and the obligations flowing from it are part of the public law governing the liability of the State. As author Daniel Jutras observes, [translation] “[i]t is public law that determines in what circumstances, and under what conditions, the State may be held liable” (“Regard sur la common law au Québec: perspective et cadrage” (2008), 10 R.C.L.F. 311, at p. 315; see also Prud’homme, at paras. 24‑27; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 27).
[151] In this regard, the core of the analysis rests on art. 1376 C.C.Q., which “is a public law” rule (Prud’homme, at para. 27). According to art. 1376 C.C.Q., the rules in Book Five (“Obligations”) of the Civil Code apply to the State, “subject to any other rules of law which may be applicable to [it]”, whether these other rules are written or unwritten (see Commentaires du ministre de la Justice, vol. I, Le Code civil du Québec — Un mouvement de société (1993), at p. 833; see also Baudouin, Jobin and Vézina, at No. 11; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 22; Ludmer v. Canada (Attorney General), 2020 QCCA 697, 2020 DTC 5055, at para. 41; Restaurant Le Relais de Saint‑Jean inc. v. Agence du revenu du Québec, 2020 QCCA 823, at para. 67).
[152] Public law rules can thus “derogat[e]” from the general civil liability regime (Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 106), for example by creating a form of immunity in favour of the State (see, e.g., Ressources Strateco inc. v. Procureure générale du Québec, 2020 QCCA 18, 32 C.E.L.R. (4th) 231, at para. 67). These rules can also change the nature of the State’s private law obligations, or even intensify them. Author Daniel Jutras helpfully observes that this set of public law rules includes [translation] “all rules that give a distinct scope to [the] liability [of the State] because of the public nature of [its] activity” (“Cartographie de la mixité: la common law et la complétude du droit civil au Québec” (2009), 88 Can. Bar Rev. 247, at p. 255).
[153] I therefore agree with Bich J.A.’s emphasis on the fact that art. 1376 C.C.Q. is the provision that makes Quebec subject to private law obligations [translation] “without, however, releasing [it] from its public law obligations”, including those flowing from the honour of the Crown, “in . . . its dealings with Indigenous peoples, even in contractual matters” (C.A. reasons, at paras. 128 and 130). However, in my respectful view, there is no basis for concluding that the principle of the honour of the Crown is implicitly incorporated into contracts by operation of art. 1434 C.C.Q. (see para. 130). The honour of the Crown applies to the contracts in this case, but this does not mean that the obligations flowing from it are contractual obligations in the strict sense. Good faith is part of the implicit content of a contract or at least reflects a [translation] “general attitude” imposed on contracting parties by law (Lluelles and Moore, at No. 1977). But the honour of the Crown is binding on Quebec as a principle of public law that is not part of the [translation] “contractual matrix” associated by law with the individual will of the parties (see Poitras v. Concession A25, 2021 QCCA 1182, at para. 51). Unlike good faith under art. 1375 C.C.Q., the obligations flowing from the honour of the Crown are not contractual obligations that have binding force by reason of a validly formed contract between an Indigenous entity and the State. Moreover, the remedy for a breach of the obligations flowing from the honour of the Crown is not governed by the rules of contractual liability or by the fundamental principle of restitutio in integrum. The honour of the Crown gives rise to public law obligations, anchored in the distinct logic of reconciliation (see G. Motard and B. Chartrand, “Négocier de bonne foi: les accords commerciaux, les sociétés d’État et le principe de l’honneur de la Couronne” (2019), 70 U.N.B.L.J. 172, at pp. 198‑99). Failure to comply with these obligations requires the Crown to restore the nation‑to‑nation relationship damaged by the dishonourable conduct.
[154] In sum, under art. 1376 C.C.Q., the principle of the honour of the Crown and the obligations that flow from it are part of the “other rules of law” relating to the civil liability of the State. These obligations intensify the State’s liability in the circumstances where they apply. Consequently, while the honour of the Crown is engaged where the State has contractual obligations, its source, unlike those contractual obligations, is firmly anchored in the public law rules that supplement the legal regime governing the liability of the State.
[155] I now turn my attention to the principles that guide the determination of whether the honour of the Crown applies in particular situations.
[156] The common element among the circumstances that the Court has so far recognized as engaging the honour of the Crown is that they relate to the reconciliation of specific Indigenous claims, rights or interests with the Crown’s assertion of sovereignty (see MMF, at para. 73). In particular, the Court has established that the Crown has a duty to consult Indigenous peoples when their rights recognized and affirmed by s. 35 of the Constitution Act, 1982 might be adversely affected by the Crown’s conduct, whether the rights are established or claimed (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 78; Haida Nation, at para. 35). Where the Crown exercises control over specific Indigenous interests, the honour of the Crown may give rise to a fiduciary obligation (Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at paras. 79 and 81; MMF, at para. 73). Similarly, the Crown has an obligation to act with integrity in the negotiation, interpretation and implementation of treaties entered into with Indigenous peoples (Restoule, at para. 73; Beckman, at para. 42).
[157] Some courts have recognized that the honour of the Crown may apply to contractual undertakings that are not constitutional in nature and that also relate to reconciliation. For example, the Manitoba Court of Appeal held that a contract whose purpose was to resolve claims by the Métis people that, up to that point, had not been addressed constructively and in good faith engaged the honour of the Crown (Manitoba Metis Federation Inc. v. Brian Pallister, 2021 MBCA 47, 458 D.L.R. (4th) 625). The Ontario Superior Court of Justice approved an arbitration decision finding that the honour of the Crown was engaged by a gaming revenue‑sharing agreement because the agreement “represents the reconciliation of the constitutionally protected Aboriginal right of self‑government . . . with the Crown’s sovereignty” (Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2020 ONSC 1516, at para. 110). That decision was affirmed by the Court of Appeal for Ontario, which found it unnecessary to address the question of the honour of the Crown (2021 ONCA 592, at para. 75).
[158] Similarly, the jurisprudence recognizes that the principle of the honour of the Crown applies to treaty land entitlement agreements that are not themselves treaties protected by s. 35(1) of the Constitution Act, 1982 (Saskatchewan (Attorney General) v. Witchekan Lake First Nation, 2023 FCA 105, 482 D.L.R. (4th) 352, at paras. 127‑30; Long Plain First Nation v. Canada (Attorney General), 2015 FCA 177, 475 N.R. 142, at para. 118; Pasqua First Nation v. Canada (Attorney General), 2016 FCA 133, [2017] 3 F.C.R. 3, at para. 64). Since their purpose is to rectify the Crown’s broken treaty promises (Long Plain, at para. 117) and thus to promote reconciliation (Witchekan Lake, at para. 127), such agreements are interpreted as engaging obligations flowing from the honour of the Crown. As these cases show, contracts are one of the instruments available to governments for undertaking or continuing a process of reconciliation, in addition to treaties (Restoule, at paras. 68‑70) and legislation (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (“Reference”), at paras. 20‑21), even though reconciliation based on contract differs from reconciliation by treaty and from “legislative reconciliation”.
[159] It is well settled that the Crown cannot contract out of its duty of honourable dealing with Indigenous peoples (Beckman, at para. 61). It follows, as Bouchard J.A. observed, that the obligations flowing from the honour of the Crown apply [translation] “independently of the expressed or implied intention of the parties” and that this intention therefore cannot be a determinative consideration in the analysis (C.A. reasons, at paras. 63 and 117, citing Beckman, at para. 61). It also follows that the instrument employed by the Crown in its dealings, including a contract, cannot have the effect of excluding the obligations flowing from the honour of the Crown.
[160] That being said, not every agreement between the Crown and an Indigenous group will necessarily engage the honour of the Crown. For example, simple commercial contracts between a government and an Indigenous entity would not necessarily engage the principle of the honour of the Crown. However, the Court’s jurisprudence and the circumstances of this case point to a way of differentiating agreements in this regard.
[161] First, the agreement in question must be entered into by the Crown and an Indigenous group by reason and on the basis of the group’s Indigenous difference, which reflects its distinctive philosophies, traditions and cultural practices (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, at para. 51, quoting Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship (1996), at p. 234).
[162] It is well settled that the principle of the honour of the Crown rests on the “special relationship” between the Crown and Indigenous peoples. As in the case of an explicit obligation owed to an Indigenous group and enshrined in the Constitution, the honour of the Crown is engaged only by an obligation assumed by the Crown on the basis of its “special relationship” with the Indigenous group, which is different from the one it has with the population in general (Mikisew Cree, at para. 21; Haida Nation, at para. 25). Moreover, the honour of the Crown will apply only if the contract has a collective dimension. Agreements relating to individual rights, even if they are between the State and an Indigenous contracting party, will generally not engage the honour of the Crown (see, e.g., Waldron v. Canada (Attorney General), 2024 FCA 2, at para. 94, citing Cree Nation of Eeyou Istchee (Grand Council) v. McLean, 2019 FCA 185, at paras. 8 and 11; Nunavut Tunngavik Inc. v. McLean, 2019 FCA 186, at paras. 8 and 11; Whapmagoostui First Nation v. McLean, 2019 FCA 187, at para. 11).
[163] Second, contractual agreements will engage the honour of the Crown where they relate to an Indigenous right of self‑government, whether the right is established or is the subject of a credible claim. In the case at bar, Pekuakamiulnuatsh Takuhikan argues that having an Indigenous police force is an exercise of its right of self‑government. I therefore take care to limit my comments accordingly. While we do not have to decide the question in order to resolve this case, I am not, however, excluding the possibility of recognizing, in a different context, that other Indigenous rights or interests might also engage the honour of the Crown in connection with a contractual undertaking.
[164] It is not necessary, in order for the principle of the honour of the Crown to apply, that an implicated Indigenous right already be recognized by the courts or the Crown.
[165] In this regard, I do not agree with Canada that the honour of the Crown may be engaged [translation] “where the Crown makes an undertaking that is not constitutional in nature for the implementation of the right of self‑government protected by s. 35(1) of the Constitution Act, 1982” (I.F., at para. 3 (emphasis added)). The Court has never addressed the question of whether there is a right of self‑government protected by s. 35(1) of the Constitution Act, 1982 (Reference, at para. 112), and it is neither necessary nor appropriate to do so in this appeal.
[166] Clearly, an established right, which is to say a right recognized by judicial authority that is binding on the court, will suffice, but the same is true of a right that is the subject of a credible claim. To arrive at this conclusion, I propose to draw on the jurisprudence concerning the duty to consult. These cases plainly establish that a credible claim to an Indigenous right is sufficient to impose an obligation on the Crown to deal honourably with Indigenous peoples (Haida Nation, at para. 35; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at paras. 40‑41). As McLachlin C.J. wrote for a unanimous Court: “The threshold, informed by the need to maintain the honour of the Crown, is not high . . . While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim” (Carrier Sekani, at para. 40).
[167] The application of the honour of the Crown in such circumstances is made necessary by the imperative of preserving the rights of Indigenous peoples on an interim basis during the process of treaty negotiation and proof (Haida Nation, at para. 27). In its intervener’s factum, Canada correctly points out that [translation] “the honour of the Crown may give rise to obligations . . . even where the existence of a specific Indigenous right or interest has not been judicially affirmed” (I.F., at para. 17).
[168] The honour of the Crown advances the goal of reconciliation in particular “by promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes” (Mikisew Cree, at para. 22, citing Taku River, at para. 24). This is a principle that is well established in the Court’s jurisprudence (see, e.g., Haida Nation, at para. 17; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 51). For the purposes of this appeal, it is the existence of an established right or a credible claim to a right of self‑government in a particular situation that justifies the application of the principle of the honour of the Crown to some contracts and not to others. Such a right or claim serves to situate the contract in circumstances similar to those that the Court has already recognized as engaging the honour of the Crown, circumstances that, as we have seen, relate to specific Indigenous rights or interests and involve their reconciliation with the Crown’s assertion of sovereignty.
[169] Having identified the test governing the application of the principle of the honour of the Crown in this case, I turn to an analysis of the tripartite agreements. It is through a characterization exercise that contracts engaging the honour of the Crown under this test can be distinguished, on the basis of their true legal nature, from those that do not. At paras 170-184 the court applies the Quebec civil law practice of characterizing contracts into their 'legal category', here as useful in determining whether an indigenous contract attracts the application of the honour of the Crown.
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