Manitoba Métis Federation Inc. v. Canada (Attorney General) et al.,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Monnin, Steel, Hamilton and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Citation: (2010), 255 Man.R.(2d) 167 (CA),2010 MBCA 71
• Date: 07 July 2010

Métis Federation Inc. v. Can. (A.G.) (2010), 255 Man.R.(2d) 167 (CA);

      486 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. JL.009

Manitoba Métis Federation Inc., Yvon Dumont, Billy Jo De La Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allarie, Celia Klassen, Alma Belhumeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson (plaintiffs/appellants) v. Attorney General of Canada and Attorney General of Manitoba (defendants/respondents)

(AI 08-30-06872; 2010 MBCA 71)

Indexed As: Manitoba Métis Federation Inc. v. Canada (Attorney General) et al.

Manitoba Court of Appeal

Scott, C.J.M., Monnin, Steel, Hamilton and Freedman, JJ.A.

July 7, 2010.

Summary:

Manitoba entered Confederation on July 15, 1870, following the passage of the Manitoba Act, 1870. Pursuant to s. 31 of the Act, a grant of 1.4 million acres was made in the new province towards the extinguishment of the Indian Title for the benefit of the families of the "half-breed residents" (Métis), to be selected and divided among their children. Section 32 of the Act contained quieting of title provisions to assure the settlers recognition of their existing property rights. In 1981, the plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals (Métis), commenced an action for declaratory relief against Canada and Manitoba. The plaintiffs claimed that Canada breached its fiduciary obligation to the Métis of Manitoba in the manner in which it implemented ss. 31 and 32 of the Act. The plaintiffs also sought declarations of a constitutional nature. They requested the declarations to assist their future negotiations to achieve a land claims agreement. In particular, the plaintiffs sought declarations: (1) that certain enactments (both statutes and orders-in-council) were ultra vires the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional; (2) that Canada failed to fulfill its obligations, properly or at all, to the Métis under ss. 31 and 32 of the Manitoba Act, and pursuant to the undertakings given by the Crown; (3) that Manitoba, by enacting certain legislation and by imposing taxes on lands referred to in s. 31 of the Manitoba Act prior to the grant of those lands, unconstitutionally interfered with the fulfilment of the obligations under s. 31 of the Act; and (4) that there was a treaty made in 1870 between the Crown in right of Canada and the Provisional Government and people of Red River.

The Manitoba Court of Queen's Bench, in a decision reported at 223 Man.R.(2d) 42, refused to grant any of the declarations sought by the plaintiffs and dismissed their claims in their entirety. The court held, inter alia: (1) that the MMF lacked standing to pursue the action; (2) the plaintiffs' action having been commenced in 1981 was statute barred by the Limitation of Actions Act; (3) the doctrine of laches and acquiescence applied and were a complete defence to the plaintiffs' claim; (4) there had been no treaty or agreement negotiated respecting these issues, rather there was an Act of Parliament, the Manitoba Act, a constitutional document which had to be interpreted as such; (5) ss. 31 and 32 of the Act were not in the nature of minority rights legislation; (6) when the Act was enacted, the Métis did not have aboriginal title to the land; (7) the Métis were not Indians; (8) there was no fiduciary relationship between Canada and the Métis, nor was the doctrine of honour of the Crown implicated, rather, Canada owed a public law duty to those entitled under ss. 31 and 32 of the Act; (9) Canada had a broad discretion with respect to the implementation of ss. 31 and 32 of the Act and there was no evidence of misconduct or bad faith in the implementation of those sections; and (10) the enactments alleged to be unconstitutional by the plaintiffs were not ultra vires. The plaintiffs filed an appeal. Treaty 1 First Nations sought to intervene on appeal.

The Manitoba Court of Appeal, in a decision reported at 231 Man.R.(2d) 178; 437 W.A.C. 178, refused to allow the intervention. Approximately two months before the appeal was to be heard, the Congress of Aboriginal Peoples filed an application to intervene in the appeal and sought an extension of time to do so.

The Manitoba Court of Appeal, per Scott, C.J.M., in a decision reported at 236 Man.R.(2d) 84; 448 W.A.C. 84, dismissed the application. The appeal proceeded.

The Manitoba Court of Appeal dismissed the appeal. The court held that the trial judge's findings of fact were owed deference; however, in any event, the evidence strongly supported the trial judge's conclusions. The trial judge's ruling that the MMF lacked standing would not be interfered with. The breach of fiduciary duty claim respecting ss. 31 and 32 of the Act was barred by the six year limitation period in the Limitation of Actions Act (1970), while the requested constitutional declarations were not subject to any statutory limitation periods, and therefore not statute barred. The doctrine of laches did not apply to the claim that Manitoba's statutory enactments were unconstitutional (i.e., a case involving the constitutional division of powers). While it was arguable that the claim that Canada misinterpreted its constitutional obligations under ss. 31 and 32 of the Act was barred by laches, the court found it unnecessary to decide this question because it found that all proceedings commenced by the plaintiffs were moot. The court held that although the plaintiffs' action was barred by the combined operation of the limitation period/laches/mootness, given the uniqueness and importance of the issues raised, it was desirable for the court to consider the fiduciary duty issues raised surrounding ss. 31 and 32. The court opined that the Métis were Aboriginal people at common law. The doctrine of the honour of the Crown, while not giving rise to an independent cause of action for the plaintiffs, flavoured the nature and extent of any fiduciary duty owed to the plaintiffs. The plaintiffs failed to prove any breach of duty with respect to the administration of s. 31 of the Act; therefore it was unnecessary to decide whether in the particular circumstances the Crown did in fact owe a fiduciary obligation to the plaintiffs with respect to s. 31. As to s. 32, the trial judge did not err when he found that the obligations associated with s. 32 did not arise in the context of a Crown-Aboriginal relationship. He was correct to conclude that there was no fiduciary duty or obligation owed to the settlers.

Civil Rights - Topic 8380.24

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Limitation of actions - The Manitoba Court of Appeal discussed whether statutory limitation periods applied to a claim for a declaration under s. 52(1) of the Constitution Act, 1982, that a statute or statutory provision was unconstitutional - The court stated that "...  the appellants in this case are seeking a declaration of invalidity in aid of extra-judicial relief and not personal remedies, such as damages. As demonstrated by the foregoing review of the jurisprudence, the type of relief sought has a significant impact upon whether or not statutory limitation periods will apply to particular constitutional claims. Limitation periods apply to personal actions for constitutional remedies, but they do not apply to applications for declarations of constitutional invalidity of a law. If the retroactive effect of a declaration of constitutional invalidity needs to be curtailed, then the factors enumerated by the Supreme Court of Canada in Canada (Attorney General) v. Hislop ... may be engaged ..." - See paragraphs 308 to 318.

Constitutional Law - Topic 1017

Interpretation of Constitution Act - General principles - Laches - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued Canada and Manitoba for declaratory relief of a constitutional nature - The trial judge held that the doctrine of laches operated as a complete defence to the plaintiffs' claims - The plaintiffs appealed - The Manitoba Court of Appeal held that the doctrine of laches could be applied to claims for declaratory relief - However, the doctrine did not apply to cases involving the constitutional division of powers, and since the constitutional claims against Manitoba all pertained to the division of powers, the doctrine of laches could not be applied to bar those claims - Therefore, to the extent the trial judge found that the plaintiffs' division of powers claims were barred by the doctrine of laches, he erred in law - The court was of the view that the rule prohibiting the application of laches to division of powers cases did not extend to the type of constitutional claims the plaintiffs advanced against Canada (i.e., essentially a declaratory ruling regarding the interpretation of certain constitutional provisions), but found it unnecessary to address that issue further, given its findings on mootness - See paragraphs 319 to 349.

Constitutional Law - Topic 1201

Manitoba Act, 1870 - General - The Manitoba Court of Appeal reviewed the history of the enactment of the Manitoba Act, 1870, whereby Manitoba became a Province and joined the Dominion of Canada - See paragraphs 14 to 168.

Constitutional Law - Topic 1201

Manitoba Act, 1870 - General - The individual plaintiffs alleged that they were descendants of persons referred to in the Manitoba Act as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of the Manitoba Act, 1870 - In 1981, the plaintiffs sued Canada and Manitoba for declaratory relief, hoping that such relief would assist them in future negotiations to achieve a land claims agreement and thereby correct an asserted historical wrong - The plaintiffs asserted that historical negotiations between the Red River delegates, Sir John A. Macdonald and Sir George Étienne Cartier, resulted in a treaty agreement rather than just simply an Act of Parliament (i.e., the Manitoba Act) - The trial judge held that the product of the discussions or negotiations, whatever descriptor one preferred, was neither a treaty nor an agreement with aboriginals - The plaintiffs appealed - The Manitoba Court of Appeal held that the trial judge's findings of fact were owed deference - The evidence strongly supported the trial judge's conclusion - There was no error, let alone palpable and overriding error - See paragraphs 238 to 240.

Constitutional Law - Topic 1201

Manitoba Act, 1870 - General - [See Constitutional Law - Topic 1017].

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - [See first Constitutional Law - Topic 2982, Constitutional Law - Topic 2986, second Courts - Topic 2286, Indians, Inuit and Métis - Topic 2.2, first, third, seventh, eighth, ninth, tenth, eleventh, and twelfth Indians, Inuit and Métis - Topic 3.3 and second Limitation of Actions - Topic 9428].

Constitutional Law - Topic 1204

Manitoba Act, 1870 - Quieting of titles (s. 32) - [See first Constitutional Law - Topic 2982, Constitutional Law - Topic 2986, second Courts - Topic 2286, Indians, Inuit and Métis - Topic 2.2, second and fourth Indians, Inuit and Métis - Topic 3.3 and second Limitation of Actions - Topic 9428].

Constitutional Law - Topic 2982

Determination of validity of statutes or Acts - Practice - Time for - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued Canada and Manitoba for declaratory relief, raising fiduciary duty issues and claims of unconstitutionality - The time frame material to the plaintiffs' action was approximately 1869 to 1890 - The trial judge held that the plaintiffs' action was statute-barred, either under the legislation in force at the time the events took place or at the time the claim was filed (1981), with the possible exception of the constitutional claims - The plaintiffs appealed - The Manitoba Court of Appeal held that the claim for breach of fiduciary duty respecting ss. 31 and 32 of the Act was barred by the six year limitation period in the Limitation of Actions Act (1970) - Further, the trial judge's finding that the cause of action was discovered more than six years before the limitation period began running was entitled to deference - The court opined that the requested constitutional declarations were not subject to any statutory limitation periods, therefore, as the trial judge held in his alternative ruling, those claims were not statute barred - See paragraphs 269 to 318.

Constitutional Law - Topic 2982

Determination of validity of statutes or Acts - Practice - Time for - [See Civil Rights - Topic 8380.24, Constitutional Law - Topic 1017 and second Courts - Topic 2286].

Constitutional Law - Topic 2984

Determination of validity of statutes or Acts - Practice - Declaratory judgment - [See Constitutional Law - Topic 1017, first Constitutional Law - Topic 2982 and first Equity - Topic 2061].

Constitutional Law - Topic 2986

Determination of validity of statutes or Acts - Parties - Standing - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870 when Manitoba entered Confederation - The individual plaintiffs alleged that they were descendants of persons referred to in the Manitoba Act as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - The plaintiffs sued Canada and Manitoba (the defendants) for declaratory relief - MMF's standing was in issue - The plaintiffs argued that the standing issue had been previously decided in MMF's favour and therefore the defendants were issue estopped from challenging standing, and in any event, MMF had standing - The trial judge rejected the issue estoppel argument, and in any event, the court would have exercised his discretion and not allowed the doctrine to prevail - Therefore, the judge allowed the defendants to reargue the standing issue but, having considered the argument, denied the MMF standing in the action, holding, inter alia, that the MMF did not meet the test for public interest standing - The plaintiffs appealed - The Manitoba Court of Appeal held that there was no justification for interfering with the trial judge's exercise of discretion to deny standing to MMF - See paragraphs 251 to 268.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The Manitoba Court of Appeal reviewed the governing legal principles on the issue of mootness - See paragraphs 355 to 367.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued the defendants, Canada and Manitoba for declaratory relief of a constitutional nature - The trial judge dismissed the action - The plaintiffs appealed - Manitoba argued that there was no reason to rule on the constitutionality of the legislation - The legislation was repealed in 1969 and had no continuing effect; therefore, the matter was moot - The Manitoba Court of Appeal concluded that the case was moot and that the court should not exercise its discretion to decide the moot constitutional issues raised by the plaintiffs - The court opined that the plaintiffs were essentially seeking a private reference regarding the constitutionality of certain spent, repealed provisions - See paragraphs 350 to 375.

Equity - Topic 2061

Equitable defences - Laches - General - The Manitoba Court of Appeal set out an overview of the equitable doctrine of laches - The court discussed whether the doctrine of laches applied to claims seeking declaratory relief, and in particular to claims seeking declarations respecting constitutional issues - The court concluded that the doctrine of laches did not apply to claims involving the constitutional division of powers, but arguably applied to bar declaratory relief primarily relating to the interpretation of constitutional provisions - See paragraphs 319 to 349.

Equity - Topic 2061

Equitable defences - Laches - General - [See Constitutional Law - Topic 1017].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - The Manitoba Court of Appeal discussed the onus of proof in a case where the plaintiffs made allegations of breach of fiduciary duty by the Crown in how it dealt with Métis land at the time Manitoba entered Confederation in 1870 - The court held that the onus was on the plaintiffs to establish the existence and content of any fiduciary obligation - The court rejected the plaintiffs' arguments that the onus should be reversed because of self-dealing by the fiduciary (i.e., the Crown) or by applying the case law pertaining to placing an onus on the fiduciary in determining damages to the plaintiffs' request for a declaration - See paragraphs 202 to 227.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Evidence - Topic 3801, fourth Indians, Inuit and Métis - Topic 3 and first, second, tenth, eleventh, twelfth, thirteenth and fourteenth Indians, Inuit and Métis - Topic 3.3].

Equity - Topic 3961

Fiduciary or confidential relationships - Evidence and proof - General - [See first Equity - Topic 3611 and Evidence - Topic 3801].

Evidence - Topic 3801

Documentary evidence - Ancient or historic documents - General - The Manitoba Court of Appeal stated that "...  while the court must approach historical evidence in proceedings involving aboriginal claims with sensitivity and a broad understanding of the evidentiary difficulties that inevitably arise in such cases, the 'special rules' regarding evidence adduced by aboriginal claimants first referred to in Delgamuukw v. British Columbia ... are geared exclusively toward non-traditional (primarily oral) evidence. They have no application where the action, as here, proceeded to trial based entirely on documentary evidence. Nor do the fundamental precepts of evidentiary law change when a claim is made by an aboriginal band against the Crown for breach of fiduciary duty and honour of the Crown." - See paragraphs 195 and 196.

Indians, Inuit and Métis - Topic 2

General - Indian defined - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued Canada and Manitoba for declaratory relief, raising fiduciary duty issues and claims of unconstitutionality - The trial judge held that Métis were not Indians under s. 31 of the Manitoba Act - On appeal, the Manitoba Court of Appeal stated that "There can be no doubt, as the trial judge found, that the aboriginality of the Métis was (and is) distinctly different than that of the Indians ... The important differences between Indians and Métis (in the nineteenth century and today) and the fact that this is not a traditional historic land claim could well be factors when considering the nature and extent of any fiduciary obligation owed to the Métis ..." - See paragraphs 243 to 245.

Indians, Inuit and Métis - Topic 2.2

General - Aboriginal defined - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued Canada and Manitoba for declaratory relief, raising fiduciary duty issues and claims of unconstitutionality - The trial judge dismissed the action - The plaintiffs appealed, arguing that because they were Aboriginal, the Crown owed them a duty based on the concept of honour of the Crown, or a Crown-Aboriginal fiduciary relationship - The Manitoba Court of Appeal, as a threshold issue, considered was whether the Métis were Aboriginal - The court noted that the Métis were one of the "aboriginal peoples of Canada" as defined by s. 35(2) of the Constitution Act, 1982 - The court opined that although s. 35 was not applicable in this case, the Métis were also Aboriginal people at common law - See paragraphs 376 to 384.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Court of Appeal stated that the fundamental precepts of evidentiary law did not change in dealing with a claim by an aboriginal band against the Crown for breach of fiduciary duty and honour of the Crown - The court rejected an argument that because of the sui generis fiduciary obligation owed by the federal Crown to First Nations, a trial judge had to resolve conflicting testimony in favour of the Indians - The court agreed with a statement by the Ontario Court of Appeal in Chippewas of Mnjikaning First Nation v. Ontario (2010) that "...  A trial judge must weigh and assess conflicting evidence in the same way as he or she always does - dispassionately, against the record as a whole, and with due consideration for any particular sensibilities (cultural or otherwise) that may impact upon a witness's testimony ..." - See paragraphs 196 to 199.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Court of Appeal discussed generally the doctrine of honour of the Crown - The court stated, inter alia, that the honour of the Crown was a unique legal doctrine, the content or effect of which could differ depending on the circumstances (e.g., there had been cases where the doctrine mandated the duty to consult) - When it was determined that an Aboriginal right had been infringed, the honour of the Crown had to be considered in determining whether the infringement was justified - The honour of the Crown also functioned as an interpretive principle in approaching treaties and statutory provisions that had an impact upon treaty or Aboriginal rights - The honour of the Crown had also been identified as the source of specific legal obligations owed by the Crown to Aboriginal peoples (i.e., the duty to consult and fiduciary obligations) - The court stated that while the honour of the Crown gave rise to different duties in different circumstances, it had not been recognized by the Supreme Court of Canada as an independent cause of action - See paragraphs 404 to 428.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Court of Appeal stated that the test for determining whether a fiduciary obligation existed within the Crown-Aboriginal relationship was composed of two main parts: first, a specific or cognizable Aboriginal interest and second, an undertaking of discretionary control over that interest by the Crown in the nature of a private law duty - The court noted that "While the test was described in Wewayakum [SCC 2002], a case involving an Indian band, as pertaining to Indian interests, in Haida Nation [SCC 2004], where McLachlin, C.J.C., was describing the fiduciary duties in general terms in a case where no fiduciary obligations were at issue, she wrote of specific Aboriginal interests" - See paragraphs 463 to 472.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Court of Appeal stated that the test for determining whether a fiduciary obligation existed within the Crown-Aboriginal relationship was composed of two main parts: first, a specific or cognizable Aboriginal interest and second, an undertaking of discretionary control over that interest by the Crown in the nature of a private law duty - The court discussed whether aboriginal title was an essential component of a cognizable aboriginal interest - The court concluded that while Aboriginal title was an important part of the underlying rationale for fiduciary obligations found in many Crown-Aboriginal fiduciary cases, it was not mandatory - The court opined that Aboriginal peoples' independent, pre-existing interest in land provided the basis for enforceable fiduciary duties even when the Aboriginal group had no title in the land (such as in Wewayakum (SCC 2002)), or where title may be present but had not been proven (as in Guerin (SCC 1984)) - The court noted that the approach to a cognizable Métis interest could well differ from that with respect to Indians - See paragraphs 476 to 509.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties and honour of the Crown) - [See Evidence - Topic 3801 and sixth Indians, Inuit and Métis - Topic 3.3].

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues surrounding the administration of s. 31 - The plaintiffs claimed that the Crown breached fiduciary duties in the selection of land, the allotment of land (i.e., by lottery and by providing of scrip in lieu of land), by passing ultra vires legislation allowing sales of the land before patent or before the person getting the land reached the age of majority, and in the extensive delay in the allotment of land - The trial judge rejected the plaintiffs' assertions that Canada had breached any duty that might have been owed to the Métis - The plaintiffs appealed - The Manitoba Court of Appeal opined that regardless of whether a fiduciary duty was owed to the Métis in administering the Act, the plaintiffs failed to establish that there was any breach of the fiduciary standard of conduct in the administration of s. 31 of the Act - The trial judge did not commit palpable and overriding error in this regard and the appeal respecting s. 31 could not succeed - See paragraphs 535 to 668.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 32 provided rules respecting "the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them" - Over 100 years later, the plaintiffs, 17 individuals (Métis), sought declaratory relief - The plaintiffs argued that the fiduciary relationship between the Crown and Aboriginal peoples was engaged by s. 32 (from which a fiduciary duty arose) and that, in any event, a fiduciary duty was owed based on the Ontario Court of Appeal's 2002 decision in Authorson - Further, the honour of the Crown was engaged - The trial judge found that there was no fiduciary duty owed to the plaintiffs with respect to s. 32 - The plaintiffs appealed - The Manitoba Court of Appeal opined that the plaintiffs' argument failed because the fiduciary relationship between the Crown and Aboriginal peoples was not engaged by s. 32 and the plaintiffs could not bring themselves within Authorson - Further, the honour of the Crown was not engaged by s. 32 - In any event, the claim was statute-barred - See paragraphs 669 to 736.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families" (i.e., the Métis people) - Section 32 provided rules respecting "the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them" - Over 100 years later, 17 individuals (Métis) sought declaratory relief respecting ss. 31 and 32 and alleged that the concept of honour of the Crown was engaged - The Manitoba Court of Appeal opined that the honour of the Crown was at stake with respect to s. 31 which was "Métis specific" - However, while the honour of the Crown was not in itself an independent basis for the relief sought by the plaintiffs, it could in some instances give rise to enforceable fiduciary duties - Whether a fiduciary duty existed was to be determined with reference to the approach established by the Supreme Court of Canada in fiduciary duty cases such as Guerin and Wewayakum - The question of which specific obligations had to be fulfilled to meet any fiduciary duty that existed was to be determined within the fiduciary jurisprudence - See paragraphs 404 and 405.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families" (i.e., the Métis people) - Section 32 provided rules respecting "the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them" - Over 100 years later, 17 individuals (Métis) sought declaratory relief respecting ss. 31 and 32 and alleged that the concept of honour of the Crown was engaged - The Manitoba Court of Appeal opined that the honour of the Crown was at stake with respect to s. 31 which was "Métis specific" - Section 32, however, was a provision of general application - The court stated that even though many of those affected by s. 32 were Métis people, that fact alone was not sufficient to engage the honour of the Crown - There had to be something more than the fact that a person was Aboriginal to engage the honour of the Crown in dealing with that person - The honour of the Crown was not engaged by s. 32 - See paragraphs 404 to 407.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued the defendants, Canada and Manitoba for declaratory relief, raising fiduciary duty issues and claims of unconstitutionality - The trial judge dismissed the action - The plaintiffs appealed, arguing that because they were Aboriginal, the Crown owed them a duty based on the concept of honour of the Crown - The Manitoba Court of Appeal opined that it would appear that the approach of the Supreme Court had evolved such that the Crown had to act honourably in all its dealings with Aboriginal peoples, not just where there was a Crown assertion of sovereignty and de facto control of land and resources - However, the content of the doctrine of honour of the Crown varied significantly depending on the context - The doctrine of the honour of the Crown as an independent basis of liability thus far existed only in relation to the duty to consult - Where the honour of the Crown was relevant in this case was to flavour the nature and extent of any fiduciary duty - It did not give rise to a free standing fiduciary obligation - See paragraphs 385 and 428.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The Manitoba Court of Appeal noted that the relationship between the Crown and the Aboriginal peoples of Canada had been recognized as being fiduciary in nature, but not every aspect of the relationship gave rise to a fiduciary duty - See paragraph 429.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The Manitoba Court of Appeal opined that both precedent and principle demonstrated that the Métis were part of the sui generis fiduciary relationship between the Crown and the Aboriginal peoples of Canada - To determine whether Canada owed any enforceable fiduciary obligations (duties) to the Métis in the administration of the Act, the court applied a two part test (i.e., whether there was both a specific or cognizable Aboriginal interest and an undertaking of discretionary control over that interest by the Crown) - As to whether there was a cognizable Aboriginal interest, the court opined that Aboriginal title was not a mandatory prerequisite to find a fiduciary obligation - In any event, the court found it unnecessary to determine exactly what constituted a cognizable Métis interest and whether one existed in this "truly unique case" because the plaintiffs did not prove that there was any breach of the fiduciary standard of conduct in the administration of s. 31 of the Act - See paragraphs 429 to 509.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The Manitoba Court of Appeal opined that both precedent and principle demonstrated that the Métis were part of the sui generis fiduciary relationship between the Crown and the Aboriginal peoples of Canada - To determine whether Canada owed any enforceable fiduciary obligations (duties) to the Métis in the administration of the Act, the court applied a two part test (i.e., whether there was both a specific or cognizable Aboriginal interest and an undertaking of discretionary control over that interest by the Crown) - As to the discretionary control part of the test, the court opined that the Crown did assume discretionary control over the administration of s. 31 of the Act and thus that aspect of the fiduciary duty test was met - In the context of the fiduciary duty analysis, the Métis people were vulnerable because of the complete control that Canada retained over the land in the new province and specifically with respect to all aspects of the s. 31 grants - Further, the Métis trusted Canada to act in their best interests - However, the plaintiffs did not prove that there was any breach of the fiduciary standard of conduct in the administration of s. 31 of the Act - See paragraphs 510 to 534.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - Section 31 provided that certain lands would be divided among "the children of the half-breed heads of families residing in the Province at the time of the said transfer to Canada ..." - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The plaintiffs argued, inter alia, that the best interests of the child was the fiduciary standard of conduct by which the Crown's actions should be judged - The Manitoba Court of Appeal opined that regardless of whether a fiduciary duty was owed to the Métis in administering the Act, the plaintiffs failed to establish that there was any breach of the fiduciary standard of conduct in the administration of s. 31 of the Act - The court noted that the Supreme Court of Canada in rejecting the best interests of the child as a general fiduciary obligation to children (K.L.B. (SCC 2003)), the majority explicitly rejected comparisons to the Crown-Aboriginal fiduciary relationship and noted the Crown's positive duties within that relationship - The court opined that the Crown did not breach its obligations in the Crown-Aboriginal sphere in this case - Therefore, reviewing the Crown's actions from the perspective of a fiduciary duty owed to children (if a duty of that sort existed) would not produce a different result - See paragraphs 535 to 544.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The Manitoba Court of Appeal, in determining this issue, stated that whether a fiduciary obligation was breached was measured not by the end result of the fiduciary's actions, but rather by whether its conduct fell below the applicable standard - Therefore, in assessing whether Canada breached its fiduciary obligations in this case, regard must be had only to whether Canada breached the standard by virtue of its actual conduct - That assessment must not be made in hindsight, but with reference to what was known and understood at the time - See paragraphs 545 to 548.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The plaintiffs claimed that speeches made by various politicians in the House of Commons regarding the Métis land situation in Manitoba constituted binding representations, which gave rise to corresponding fiduciary duties to fulfill such promises - The Manitoba Court of Appeal questioned whether those types of political speeches could give rise to enforceable fiduciary obligations - However, in any event, there was no evidence that the plaintiffs relied on any such representations - That lack of reliance was determinative - See paragraphs 549 to 551.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The Manitoba Court of Appeal stated that "the determination of whether Canada has breached its fiduciary obligations therefore has a specific and narrow focus. The question is not whether the Métis people of Red River met with hardship in the decades following Manitoba's entry into Confederation, although they undeniably did. The question is also not whether any such hardship resulted from actions taken by the federal Crown with respect to its fiduciary obligations to the Métis. Rather, the question involves assessing the Crown's conduct with respect to the applicable standard" - See paragraph 552.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The Manitoba Court of Appeal stated that the task of assessing whether the Crown breached its fiduciary obligations attracted special considerations given its unique role - See paragraphs 553 to 557.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31 - In 1981, the plaintiffs sued the Crown for declaratory relief, raising fiduciary duty issues - The plaintiffs submitted that government ineptitude was sufficient to breach the fiduciary standard - The Manitoba Court of Appeal opined that inadvertent or inept actions had the potential to constitute a breach of fiduciary duty, but only if such actions were below the standard of conduct required of the fiduciary in the circumstances - See paragraphs 558 to 561.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties and honour of the Crown) - [See first Constitutional Law - Topic 2982, Indians, Inuit and Métis - Topic 2, first, second, third and fourth Indians, Inuit and Métis - Topic 3, first Equity - Topic 3611, Evidence - Topic 3801 and second Limitation of Actions 9428].

Indians, Inuit and Métis - Topic 802

Personal or legal rights - Limitation of actions - [See first Constitutional Law - Topic 2982].

Indians, Inuit and Métis - Topic 4402

Treaties and proclamations - General - What constitutes a treaty - [See second Constitutional Law - Topic 1201].

Indians, Inuit and Métis - Topic 5503

Lands - Métis lands - Duties of Crown re - [See first and second Indians, Inuit and Métis - Topic 3.3].

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - The Manitoba Court of Appeal stated that "Even with respect to those instances where oral histories are the only available evidence in a Crown-Aboriginal dispute, so that an accommodation has developed for such testimony to be admitted for justice to be done ... there are limits. The purpose of this accommodation was to place such histories 'on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents' ... In Mitchell v. M.N.R. ...  McLachlin, C.J.C., confirmed that '[o]ral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge' ..." - See paragraphs 200 and 201.

Indians, Inuit and Métis - Topic 5568

Lands - Land claims - Aboriginal title - Evidence and proof - [See Evidence - Topic 3801].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See first Constitutional Law - Topic 2982].

Limitation of Actions - Topic 1905

Actions - Breach of fiduciary duty - [See first Constitutional Law - Topic 2982].

Limitation of Actions - Topic 7582

Actions against the Crown - Applicability of limitation period - Charter remedies (incl. application to strike down unconstitutional statute) - [See Civil Rights - Topic 8380.24 and first Constitutional Law - Topic 2982].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See first Constitutional Law - Topic 2982].

Limitation of Actions - Topic 9428

Bars - Disallowance of defence - Considerations - Fraudulent concealment - The Manitoba Court of Appeal reviewed the concept of equitable fraud (fraudulent concealment) as a bar to the running of a limitation period - See paragraphs 294 to 307.

Limitation of Actions - Topic 9428

Bars - Disallowance of defence - Considerations - Fraudulent concealment - The plaintiffs, 17 individuals, alleged that they were descendants of persons referred to in the Manitoba Act, 1870, as "half-breeds" (Métis) entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued Canada and Manitoba, for declaratory relief, raising, inter alia, fiduciary duty issues - The time frame material to the plaintiffs' action was approximately 1869 to 1890 - The trial judge held that the plaintiffs' fiduciary duty claims should be dismissed as being barred by the Limitation of Actions Act - The plaintiffs appealed, arguing, for the first time, that the doctrine of equitable fraud should be used to prevent the fiduciary duty claim from being statute barred - The Manitoba Court of Appeal rejected the plaintiffs' argument because there was no factual foundation to support a finding of equitable fraud - See paragraphs 294 to 307.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See Constitutional Law - Topic 2986].

Practice - Topic 227.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Métis associations or federations - [See Constitutional Law - Topic 2986].

Practice - Topic 5667

Judgments and orders - Declaratory judgments - Bars - Academic questions - [See both Courts - Topic 2286].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, commenced an action for declaratory relief, claiming that Canada breached its fiduciary obligation to the Métis of Manitoba in the manner in which it implemented ss. 31 and 32 of the Manitoba Act, 1870 - The trial judge dismissed the action - The plaintiffs appealed - An issue arose as to the standard of review - The Manitoba Court of Appeal noted that in Housen v. Nikolaisen (SCC 2002), the court ruled that the standard of review in assessing both direct findings of fact and findings based on inferences of fact was that of palpable and overriding error - The appeal court agreed also with recent appellate authority that made it clear that no less deference should be shown to a trial judge's inferences and conclusions of fact drawn from documentary evidence - The court concluded that the standard of review mandated in Housen applied with full force to findings of fact and inferences therefrom made by the trial judge from the historical documentary evidence before him - See paragraphs 229 to 237.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - The Manitoba Court of Appeal stated that it was well settled that the granting of declaratory relief was discretionary - It was also well settled that where a trial judge's decision was discretionary, the decision should not be overturned unless the judge misdirected himself or herself as to the law, the decision was so clearly wrong as to amount to an injustice, or the judge committed a palpable and overriding error - Thus a decision by a trial judge to grant or refuse declaratory relief was entitled to significant deference - See paragraphs 246 to 250.

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences and inferences from truthful evidence - [See Practice - Topic 8800].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See both Courts - Topic 2286].

Cases Noticed:

Aitkins v. Black (4 July 1879) (Man. Q.B.), refd to. [para. 157].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 195].

Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs) (2010), 265 O.A.C. 247; 2010 ONCA 47, refd to. [para. 196].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 200].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 201].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89; 130 D.L.R.(4th) 193, refd to. [para. 203].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 203].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 203].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 203].

Whitefish Lake Band of Indians v. Canada (Attorney General) (2007), 87 O.R.(3d) 321; 2007 ONCA 744, refd to. [para. 209].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 210].

Commerce Capital Trust Co. v. Berk (1989), 33 O.A.C. 373; 57 D.L.R.(4th) 759 (C.A.), refd to. [para. 211].

London Loan & Savings Co. v. Brickenden, [1934] 2 W.W.R. 545 (P.C.), refd to. [para. 211].

Authorson v. Canada (Attorney General) (2007), 226 O.A.C. 4; 86 O.R.(3d) 321; 2007 ONCA 501, leave to appeal refused (2007), 384 N.R. 391; 249 O.A.C. 399 (S.C.C.), refd to. [para. 218].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 223].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 229].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 229].

Knock v. Dumontier et al. (2006), 208 Man.R.(2d) 121; 383 W.A.C. 121; 2006 MBCA 99, refd to. [para. 230].

FL Receivables Trust 2002-A v. Cobrand Foods Ltd. (2007), 85 O.R.(3d) 561; 2007 ONCA 425, refd to. [para. 235].

Gottardo Properties (Dome) Inc. et al. v. Regional Assessment Commissioner, Region No. 9 et al. (1998), 111 O.A.C. 272; 162 D.L.R.(4th) 574 (C.A.), refd to. [para. 236].

Andrews v. Coxe (2003), 320 A.R. 258; 288 W.A.C. 258; 2003 ABCA 52, refd to. [para. 236].

J.N. v. G.J.K. et al. (2004), 361 A.R. 177; 339 W.A.C. 177; 2004 ABCA 394, refd to. [para. 236].

R. v. Blais (E.L.J.) (2001), 156 Man.R.(2d) 53; 246 W.A.C. 53; 198 D.L.R.(4th) 220; 2001 MBCA 55, refd to. [para. 239].

R. v. Blais (E.L.J.), [2003] 2 S.C.R. 236; 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3; 2003 SCC 44, refd to. [para. 243].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 248].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 248].

Hongkong Bank of Canada v. Wheeler Holdings Ltd., [1993] 1 S.C.R. 167; 148 N.R. 1; 135 A.R. 83; 33 W.A.C. 83, refd to. [para. 248].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 249].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 249].

Hozaima v. Perry et al. (2010), 251 Man.R.(2d) 148; 478 W.A.C. 148; 2010 MBCA 21, refd to. [para. 249].

Penner et al. v. Quintaine (P.) & Son Ltd. (2007), 225 Man.R.(2d) 44; 419 W.A.C. 44; 2007 MBCA 159, refd to. [para. 249].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 261].

Beaudoin et al. v. Conley (2000), 150 Man.R.(2d) 34; 230 W.A.C. 34; 2000 MBCA 83, leave to appeal denied (2001), 272 N.R. 193; 156 Man.R.(2d) 318; 246 W.A.C. 318 (S.C.C.), refd to. [para. 277].

Stuffco v. Stuffco et al. (2006), 397 A.R. 111; 384 W.A.C. 111; 68 Alta. L.R.(4th) 91; 2006 ABCA 317, refd to. [para. 282].

Peterson et al. v. Highwood Distillers Ltd. et al., [2005] A.R. Uned. 295; 47 Alta. L.R.(4th) 225; 2005 ABCA 248, refd to. [para. 282].

Johnson v. Johnson (2001), 163 Man.R.(2d) 46; 269 W.A.C. 46; 2001 MBCA 203, refd to. [para. 288].

Rarie v. Maxwell (1998), 131 Man.R.(2d) 184; 187 W.A.C. 184 (C.A.), refd to. [para. 288].

Tacan et al. v. Canada (2005), 261 F.T.R. 161; 2005 FC 385, refd to. [para. 290].

Gamey v. Langenburg (Town) (2010), 343 Sask.R. 258; 472 W.A.C. 258; 2010 SKCA 11, refd to. [para. 290].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 291].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 291].

Perrot v. Canada (Minister of Fisheries and Oceans) (2009), 291 Nfld. & P.E.I.R. 249; 898 A.P.R. 249; 2009 NLTD 172, refd to. [para. 292].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 63 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 306].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359; 2000 ABCA 97, refd to. [para. 306].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 308].

Ravndahl v. Saskatchewan et al., [2009] 1 S.C.R. 181; 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2009 SCC 7, affing. (2007), 299 Sask.R. 162; 408 W.A.C. 162; 2007 SKCA 66, reving. in part (2004), 251 Sask.R. 156; 2004 SKQB 260, refd to. [paras. 308, 311].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1988] 5 W.W.R. 193; 52 Man.R.(2d) 291 (C.A.), refd to. [para. 314].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 315].

Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, refd to. [para. 331].

Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218 (H.L.), refd to. [para. 331].

Rivergate Properties Inc. v. West St. Paul (Rural Municipality) (2006), 205 Man.R.(2d) 230; 375 W.A.C. 230; 2006 MBCA 76, refd to. [para. 335].

Dumont v. Manitoba Métis Federation Inc. et al. (2004), 190 Man.R.(2d) 113; 335 W.A.C. 113; 2004 MBCA 149, refd to. [para. 341].

McEwen, In re, [1941] S.C.R. 542, refd to. [para. 344].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 344].

Ontario Hydro v. Labour Relations Board (Ont.) et al., [1993] 3 S.C.R. 327; 158 N.R. 161; 66 O.A.C. 241, refd to. [para. 345].

Taylor et al. v. Registrar of South Alberta Land Registration District et al. (2005), 367 A.R. 73; 346 W.A.C. 73; 2005 ABCA 200, refd to. [para. 346].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 357].

Payne et al. v. Wilson et al. (2002), 162 O.A.C. 48 (C.A.), refd to. [para. 360].

Daigle v. Tremblay, [1989] 2 S.C.R. 530; 102 N.R. 81; 27 Q.A.C. 81, refd to. [para. 364].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 364].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Woods v. Canada (Attorney General) et al. (2005), 192 Man.R.(2d) 117; 340 W.A.C. 117; 2005 MBCA 24, refd to. [para. 365].

Kennett v. Manitoba (Attorney General) (1998), 129 Man.R.(2d) 244; 180 W.A.C. 244 (C.A.), refd to. [para. 366].

Pestrak v. Denoon (2000), 148 Man.R.(2d) 153; 224 W.A.C. 153; 2000 MBCA 79, refd to. [para. 366].

Human Rights Commission (Sask.) et al. v. Saskatoon Public Library Board et al. (2008), 325 Sask.R. 224; 2008 SKQB 312, refd to. [para. 366].

C.P.L., Re (1993), 112 Nfld. & P.E.I.R. 148; 350 A.P.R. 148 (Nfld. C.A.), refd to. [para. 366].

McKenzie v. British Columbia (Minister of Public Safety and Solicitor General) et al. (2007), 247 B.C.A.C. 221; 409 W.A.C. 221; 2007 BCCA 507, refd to. [para. 366].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 378].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 385].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 389].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 389].

Polchies v. Canada, [2007] 3 C.N.L.R. 242; 312 F.T.R. 196; 2007 FC 493, refd to. [para. 402].

Stoney Indian Band v. Canada (2005), 329 N.R. 201; 249 D.L.R.(4th) 274; 2005 FCA 15, refd to. [para. 402].

Labrador Métis Nation et al. v. Canada (Attorney General) (2006), 358 N.R. 381; 277 D.L.R.(4th) 60; 2006 FCA 393, refd to. [para. 402].

Ochapowace First Nation et al. v. Canada (Attorney General) et al., [2009] 3 C.N.L.R. 242; 389 N.R. 87; 2009 FCA 124, leave to appeal refused (2009), 402 N.R. 391 (S.C.C.), refd to. [para. 407].

Churchwardens of St. Saviour in Southwark Case (1613), 10 Co. Rep. 66b; 77 E.R. 1025, refd to. [para. 409].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 409].

Lieding v. Ontario (1991), 43 O.A.C. 231; 2 O.R.(3d) 206 (C.A.), refd to. [para. 409].

British Columbia (Attorney General) v. Davies (2009), 274 B.C.A.C. 118; 463 W.A.C. 118; 2009 BCCA 337, refd to. [para. 409].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 410].

R. v. Taylor (1981), 34 O.R.(2d) 360 (C.A.), refd to. [para. 412].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 417].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 425].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 429].

Quebec (Attorney General) v. Canada (National Energy Board) - see Québec (Procureur général) v. Office national de l'énergie.

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 441].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 452].

Ross & Associates v. Palmer (2001), 153 Man.R.(2d) 147; 238 W.A.C. 147; 2001 MBCA 17, refd to. [para. 463].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241; 25 F.T.R. 161, refd to. [para. 480].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band.

Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48; 156 F.T.R. 1 (T.D.), refd to. [para. 515].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 517].

Laroza Estate v. Ontario, [2005] O.T.C. 727 (Sup. Ct.), refd to. [para. 527].

Drady v. Canada et al., [2007] O.T.C. Uned. F30; 159 A.C.W.S.(3d) 177 (Sup. Ct.), refd to. [para. 527].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 543].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 543].

E.D.G. v. Hammer et al., [2003] 2 S.C.R. 459; 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 SCC 52, refd to. [para. 544].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 544].

Osoyoos Indian Band v. Oliver (Town) et al., [2001] 3 S.C.R. 746; 278 N.R. 201; 160 B.C.A.C. 171; 261 W.A.C. 171; 2001 SCC 85, refd to. [para. 554].

R. v. Powley (S.) et al. (2001), 141 O.A.C. 121; 53 O.R.(3d) 35 (C.A.), refd to. [para. 654].

Authorson v. Canada (Attorney General) (2002), 157 O.A.C. 278; 58 O.R.(3d) 417 (C.A.), revd. [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 669].

Gladstone v. Canada (Attorney General), [2005] 1 S.C.R. 325; 332 N.R. 182; 210 B.C.A.C. 1; 348 W.A.C. 1; 2005 SCC 21, refd to. [para. 720].

Canada (Attorney General) v. Virginia Fontaine Memorial Treatment Centre Inc. et al. (2006), 203 Man.R.(2d) 48; 2006 MBQB 85, refd to. [para. 721].

Young v. McLellan et al. (2005), 218 B.C.A.C. 195; 359 W.A.C. 195; 2005 BCCA 563, refd to. [para. 736].

Statutes Noticed:

Constitution Act, 1982, sect. 35(2) [para. 378].

Half-breed Land Grant Protection Act, S.M. 1873, c. 44, generally [para. 119].

Half-breed Land Grant Protection Act, S.M. 1875, c. 37, generally [para. 129].

Half-breed Land Protection Act, S.M. 1877, c. 5, generally [para. 10].

Half-breed Lands Act, S.M. 1885, c. 30 [para. 154].

Half-breed Lands and Quieting Certain Titles Act, S.M. 1881, c. 19, generally [para. 150].

Infants Act, S.M. 1878, c. 7, generally [para. 144].

Lands of Half-breed Children Act, S.M. 1878, c. 20, generally [para. 142].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 2(1)(k), sect. 7.1, sect. 7(5) [para. 273].

Manitoba Act, R.S.C. 1985, App. II, No. 8, sect. 31, sect. 32, sect. 33 [para. 3].

Authors and Works Noticed:

Arnot, David M., The Honour of the Crown (1996), 60 Sask. L. Rev. 339, p. 340 [para. 408].

Canada, Hansard, House of Commons Debates, vol. 20 (July 6, 1885), p. 3113 [paras. 117, 156, 158].

Canada, Royal Commission on Aboriginal Peoples Report, vol. 4, Perspectives and Realities (1996), p. 199 [para. 378].

Elliott, David W., Much Ado About Dittos: Wewayakum and the Fiduciary Obligation of the Crown (2003), 29 Queen's L.J. 1, p. 6 [para. 491].

Ens, Gerhard J., Manitoba Métis Study: The Métis Land Grant and Persistence in Manitoba (2006), p. 46 [para. 107].

Ens, Gerhard J., Métis Lands in Manitoba (1983), generally [para. 603].

Ens, Gerhard J., Migration and Persistence of the Red River Métis 1835-1890 (1987) (Rev. 1998), p. 24 [para. 95].

Ens, Gerhard J. and Flanagan, Métis Family Study: A Report Prepared for the Department of Justice (1998), generally [paras. 114, 168].

Flanagan, Thomas, The Case Against Métis Aboriginal Rights (1983), 9 Cdn. Pub. Policy 314, pp. 314 to 325 [para. 383].

Flanagan, Historical Evidence in the Case of Manitoba Métis Federation v. The Queen (1998), pp. 4 [paras. 163, 164]; 5 [para. 163]; 9 [para. 622]; 43 [para. 80]; 47 [para. 165]; 59 [para. 160].

Hansard - see Canada, Hansard, House of Commons Debates.

Kerans, Roger P., and Willey, Kim. M., Standards of Review Employed by Appellate Courts (2nd Ed. 2006), pp. 148, 150, 151 [para. 232].

Halsbury's Laws of England (1979) (4th Ed. - Reissue), vol. 28, paras. 919 to 921 [para. 301].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf), p. 59-19, fn. 78 [para. 265]; para. 59.3(a) [para. 264].

Jamal, Mahmud, and Taylor, Matthew, The Charter of Rights Litigation (2009 Looseleaf), para. 4.09(2) [para. 367].

Macdonald, Catherine, Report on the Events of the Red River Resistance of 1869-70 (2004), p. 3 [para. 16].

McNeil, Kent, Culturally Modified Trees, Indian Reserves and the Crown's Fiduciary Obligations (2003), 21 S.C.L.R.(2d) 105, p. 135 [para. 500].

Meagher, R.P., Gummow, W.M.C., and Lehane, J.R.F., Equity: Doctrines and Remedies (2nd Ed. 1984), pp. 77, 78 [para. 331].

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), pp. 38 [para. 330]; 45 [para. 289].

Murray, Jeffrey S., Land Grants (2007), generally [para. 647].

Rotman, Leonard Ian, Aboriginal Rights: Crown-Native Relations as Fiduciary: Reflections Almost Twenty Years After Guerin (2003), 22 Windsor Y.B. Access Just. 363, p. 17 [para. 538].

Rotman, Leonard Ian, Fiduciary Law (2005), pp. 1, 2 [para. 462].

Sarna, Lazar, The Law of Declaratory Judgments (3rd Ed. 2007), pp. 2 [paras. 247, 248]; 17 [para. 339]; 18 [paras. 248, 339]; 19 [paras. 251, 262]; 20 [para. 262].

Sharpe, Robert J., Charter Litigation (1987), pp. 329 [para. 355]; 331 [para. 266]; 332 [paras. 266, 355].

Shepherd, J.C., The Law of Fiduciaries (1981), pp. 157 to 159 [para. 208].

Slattery, Brian, Understanding Aboriginal Rights (1987), 66 Can. Bar Rev. 727, p. 753 [para. 436].

Snell's Equity (31st Ed. 2005), pp. 99 [para. 329]; 101 [para. 330].

Sossin, Lorne, Public Fiduciary Obligations, Political Trust, and Equitable Duty of Reasonableness in Administrative Law (2003), 66 Sask. L. Rev. 129, pp. 140 to 141 [para. 726].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), p. 877 [para. 205].

Counsel:

T.R. Berger, Q.C., J. Aldridge, Q.C., and H.I. Schachter, for the appellants;

R.A. Dewar, Q.C., P.R. Anderson and C.D. Clark, for the respondent, Attorney General of Canada;

H.S. Leonoff, Q.C., and M.A. Conner, for the respondent, Attorney General of Manitoba.

This appeal was heard on February 17 to 20 and 23 to 26, 2009, before Scott, C.J.M., Monnin, Steel, Hamilton  and  Freedman,  JJ.A.,of the Manitoba Court of Appeal. The following decision was delivered for the court by Scott, C.J.M., on July 7, 2010.