A wag once said that the Yiddish word Chutzpah has been defined as the quality of a person who is accused of killing his parents and then throws himself on the mercy of the Court because he is an orphan. The Crown’s chutzpah runs throughout the entire line of post-1982 Aboriginal rights cases from Guerin to the most recent decision, Manitoba Métis Federation Inc. v. Canada (AG) 2013 SCC 14 (MMF), decided Friday, March 8, 2013. (This is the most succinct and least scholarly statement of the thesis that I have been in the throes of finishing for the last while.) In every ground breaking decision the Crown makes arguments that the Court points out are singularly lacking in merit and that display a serious disregard for the Crown’s, its obligation to avoid even the appearance of “sharp dealing”, to resolve ambiguities in treaties and in statutes “in favour of the Indians”, its fiduciary duty to Aboriginal communities, its duty to consult and accommodate and the honour of the Crown. (This list sets out these Crown duties in the order in which they were introduced by the Court in a succession of cases.) Indeed, each of these catch phrases was introduced on the occasion of a further elaboration of the meaning of “Aboriginal and treaty rights” in s. 35(1) and the corresponding obligations of the Crown; had the Crown avoided sharp dealings and fulfilled its obligations, very little of this litigation would ever have arisen.
It is the Crown’s chutzpah in this most recent decision, Manitoba Métis, that I propose to discuss in this review of the SCC’s decision in Manitoba Métis. The Métis came to the Court somewhat later than First Nations and Inuit. They have, however, enjoyed two big wins in recent months, of which this is the second. I discussed Daniels v. Canada when Justice Phelan handed down his decision in the Federal Court under the title “Chicken Little v. The Federal Court”. Powley had been their big win one year earlier. The advantage of this approach is two-fold: first, the chutzpah is very often pointed out by the Court (though they haven’t yet used the term), a source of great comfort to a somewhat reticent, if not shy, reviewer; secondly, the Government’s sharp dealings and disregard for the honour of the Crown more often than not compose the ersatz golden thread running through the Crown’s position.
The MMF majority decision was written by Chief Justice McLachlin and Justice Karatasanis.
MMF, like Daniels, is a “collective claim for declaratory relief for the purposes of reconciling the descendants of the Métis people of the Red River Valley and Canada.” Unlike Daniels, it is about an entitlement to land, in this case the land promised by John A. Macdonald to a Métis delegation in 18__, at a time when the Métis were actually more powerful, in the area now known as Manitoba, than Canada. This promise, unlike many promises to First Nations, was not embedded in a treaty. It was, however, embedded in section 31 of the Manitoba Act, 1870 which, as the Court noted, is a constitutional document.[i] The Métis of the Red River were promised 1.4 million acres to be divided amongst their then living children. Through “repeated mistakes and inaction” (as the trial court put it) or, in the words of the Supreme Court “errors and delays”.) This acreage was based on an erroneous estimate of the number of Métis children and a view of allotting them each 240 acres. Its purpose was three-fold (at least): (1) to gain the agreement of the Métis to enter Confederation and to avoid any hostilities with Crown officials or with settlers; (2) to allow the Métis “a head start” before large numbers of English speaking Protestants from Ontario swamped their numbers in Manitoba; (3) to extinguish any claim they might have to an “Indian title”. The failure to implement s. 31 and properly distribute the 1.4 million acres in a timely and competent manner left a large number of Métis children without this head start. It was this that led to the distribution of scrip which had it been distributed properly and managed well by the recipients would have provided them with between 96 and 120 acres.
The declaratory relief sought in MMF is for the outstanding obligation under s. 31 of the Manitoba Act. The Government offered a number of chutzpah-like arguments: (a) the action is barred either by a statute of limitations or by laches; (2) the obligations under s. 31 were discretionary, not obligatory; and, (3) the Manitoba Métis Federation did not have standing as a party to the suit.
The most significant and most interesting feature of MMF is the Court’s exploration of “the honour of the Crown,” beginning with the ways in which the Court distinguished between the Crown’s fiduciary obligations – which it found did not apply in this instance – and the honour of the Crown which, the Court found, did apply, even though it had not been raised in the appellants’ briefs to the SCC, though they had raised it in earlier proceedings as a ground for requiring fulfillment of promises or undertakings made by the Crown.
 The question is simply this: Viewing the Crown’s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of the obligation?
In the decision, the Court saved this question until the end of its exploration of the honour of the Crown. I have chosen to highlight it at the beginning of this discussion so that it will be the beacon toward which I will wend my way.
I can not think of an earlier case in which the Court highlight the distinction between the Crown’s fiduciary duty and its duty to act honourably. Since the earliest exploration of s.35 (1), Sparrow, if you found one, you would likely find other. The Crown’s fiduciary duty was introduced and elaborated upon in Guerin, a damage suit against the Crown that arose before 1982 in which the honour of the Crown was not mentioned, but in which the Court did make a $10 million award based, in part, upon its disapproval of the equitable fraud of certain agents of the Crown. In MMF, the Court separated the two horses that had previously been in the same harness and set them in parallel but distinct paths.
In MMF, the plaintiffs had sought declaratory relief primarily on the ground of the Crown’s fiduciary obligations. The SCC concurred with the Courts below that fiduciary duty – the trust like duty to act on the best interests of the would-be beneficiary putting any personal interest aside – did not apply primarily because the language of s. 31 of the Manitoba Act, 1870, while setting aside what had become known as “the [Métis] children’s lands” contained qualifications which exempt the Crown from acting in their best interests, “in such mode and on such conditions as to settlement and otherwise, as the Governor in Council may from time to time determine.” Further, the fiduciary duty, in all previous decisions, related to communal lands held by a First Nation or other Aboriginal community. The Métis children’s lands were to be granted “to individual Métis children”, despite the fact that the Court had found that one major purpose was “to extinguish any Indian title” that the Métis might have claimed.” The requirement that Aboriginal title be a communal title has long been seen, by some scholars, as a serious limitation on the s. 35(1) rights of the Métis.
 The honour of the Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people. … The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty.”
The Court has repeatedly acknowledged that prior to the assertion of British sovereignty First Nations lived in organized societies with their own laws, very often including sovereignty over their own lands. The Métis claim to the lands promised in s. 31 of the Manitoba Act, 1870 can not make a comparable claim; on the other hand, they have a reasonable expectation that the Crown will act honourably and will fulfill its promises. If they see the Crown as less than honourable then there can be no reconciliation with the Crown’s sovereignty.
“The honour of the Crown, like the Crown’s fiduciary duty, goes back to the Royal Proclamation of 1763” in which the Crown promised protection of the lands of the “several nations with which we [George III] was allied and who live under our Protection.” The Court explicitly denies that the idea of “the honour of the Crown” is paternalistic.
Sparrow, the first post-patriation Aboriginal rights decision held that “s. 35(1) [of the Constitution Act, 1982] restrains the legislative power in s.91(24) in accordance with the high standard of honourable dealing” that the Court had previously said “is a corollary of s. 35.” The Court finds “an analogy between a constitutional obligation and a treaty promise. An intention to create obligations and a certain measure of solemnity should attach to both.[71 quoting from R. v. Sioui.]
The last element under the rubric of the honour of the Crown is “that the obligation must be explicitly owed to an Aboriginal group.” Although we might all prefer the Crown to deal with us honourably the honour that is a corollary of s. 35 applies only to Aboriginal groups. It would not, however, apply to an Aboriginal group in its capacity as part of the general polity of Canada or a province.
The Court replies to a number of criticisms of “the honour of the Crown” offered by its detractors. Not only is it neither paternalistic nor a medieval remnant it is also “not a mere incantation, but rather a core precept that finds its analysis in concrete practices” and “gives rise to different duties in different circumstances.” The Court has, consistently throughout this line of cases, spoken of the need for “purposive interpretation”. “An honourable interpretation can not be a legalistic one that divorces the words from their purpose.”
That may well take us back to my opening about the Crown’s chutzpah. In 1990, in Sparrow, the Crown had argued that s. 35(1) would have “no meaning” until Governments and Parliaments gave meaning to it. Chief Justice Dickson and Justice La Forest, found that argument at odds with the need to give constitutional provisions, broad, generous and purposive interpretations (as the Court had done earlier in a number of Charter rights decisions). In 2013, a mere 23 years later, the Court is still needing to remind the Attorney General of Canada of the difference between an honourable interpretation and a legalistic one, between a mere incantation” and a core precept.
Some time soon I will review, hopefully in these pages, the vast sums of money expended by the federal government in its quest to minimize the meaning of section 35 (1), the recognition and affirmation of the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.
[i]Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1985, App. II, No. 8], ss. 31, 32.