Simon's Megalomaniacal Legal Resources

Indigenous - Honour of the Crown (2)

. 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.