Date: 20130812
Docket: A-417-12
Citation: 2013 FCA 191
CORAM: BLAIS
C.J.
MAINVILLE
J.A.
NEAR
J.A.
BETWEEN:
THE PEEPEEKISIS BAND, as
represented by
CHIEF ENOCH POITRAS, DWIGHT
PINAY,
ARTHUR DESNOMIE, ALLAN BIRD,
JAMES POITRAS, PERRY McLEOD,
CLARENCE McNABB and LAWRENCE DEITER,
CHIEF AND COUNCILLORS OF
THE PEEPEEKISIS BAND NO. 81
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF
CANADA
as represented by the MINISTER OF
INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
is an appeal from a judgment of Russell J. of the Federal Court (the “Judge”)
dated July 19, 2012 and cited as 2012 FC 915 (the “Reasons”), which summarily
dismissed the appellants’ claim on the basis that the limitation period had
expired pursuant to Saskatchewan’s Public Officers’ Protection Act,
R.S.S. 1978, c. P-40 or pursuant to limitation periods set out under
limitations of actions statutes applicable in Saskatchewan.
The claim
[2]
In
1874, Her Majesty the Queen entered into Treaty No. 4 with certain Cree,
Saulteaux and other aboriginal peoples. That treaty notably provided for the
setting aside of reserves of sufficient area to allow one square mile for each
family of five. The pertinent provision of the treaty reads as follows:
And Her Majesty the Queen hereby agrees, through the
said Commissioners, to assign reserves for the said Indians, such reserves to
be selected by officers of Her Majesty’s Government of the Dominion of Canada
appointed for that purpose, after conference with each band of the Indians, and
to be of sufficient area to allow one square mile for each family of five, or
in that proportion for larger or smaller families, provided, however, that it
be understood that, if at the time of the selection of any reserves, as
aforesaid, there are any settlers within the bounds of the lands reserved for
any band, Her Majesty retains the right to deal with such settlers as She shall
deem just, so as not to diminish the extent of land allotted to the Indians;
[3]
Moreover,
Treaty No. 4 also provided that following the assignment of the reserves, any
interest or right therein, or appurtenant thereto, could be sold, leased or
otherwise disposed of by the Government of Canada (a) for the use and benefit
of the Indians and (b) with the consent of the Indians entitled thereto:
and provided, further, that the aforesaid reserves
of land, or any part thereof, or any interest or right therein, or appurtenant
thereto, may be sold, leased or otherwise disposed of by the said Government
for the use and benefit of the said Indians, with the consent of the Indians
entitled thereto first had and obtained, but in no wise shall the said Indians,
or any of them, be entitled to sell or to otherwise alienate any of the lands
allotted to them as reserves.
[4]
Treaty
No. 4 also prescribed that in the event any section of a reserve was required
for public works or building, compensation would be provided to the Indians:
It is further agreed between Her Majesty and Her
said Indian subjects that such sections of the reserves above indicated as may
at any time be required for public works or building of whatsoever nature may
be appropriated for that purpose by Her Majesty’s Government of the Dominion of
Canada, due compensation being made to the Indians for the value of any
improvements thereon, and an equivalent in land or money for the area of the
reserve so appropriated.
[5]
Pursuant
to Treaty No. 4, the Peepeekisis Reserve No. 81 (the “Peepeekisis reserve”) was
surveyed and set apart for the benefit of the Peepeekisis band. The reserve was
confirmed by Order in Council P.C. 1151 of May 17, 1889.
[6]
In
1896, William Morris Graham was appointed as the Indian Agent for the File
Hills Agency, which included the Peepeekisis reserve. Indian Agent Graham
developed what became known as the “scheme of colonization”. Under that scheme
started in 1901, the best farming sections of the Peepeekisis reserve were surveyed
into lots in order to settle thereon ex-pupils from various Indian schools who
were not members of the Peepeekisis band. The appellants claim that as a result
of the scheme of colonization, a section of reserve land comprising 7,680 acres
was subdivided in 1902 into 96 lots, and another section comprising 11,040
acres of land was subdivided in 1906 into another 136 lots.
[7]
For
the purpose of achieving the scheme of colonization, the band membership of each
of the pupils settling on the Peepeekisis reserve had to be transferred to the
Peepeekisis band. Under the terms of the Indian Act as it then applied,
the consent of the band was required to carry out such a transfer. The first
transfers appear to have been approved by the membership of the Peepeekisis
band. However, in 1910 Indian Agent Graham reported that “of late there has been
quite a lot of opposition” (Appeal Book (“AB”) at p. 538).
[8]
As
a result of this opposition, Indian Agent Graham devised in 1911 a scheme by
which the Peepeekisis band would enter into an agreement with the Crown
providing that, in exchange for $20 to be paid to each member, the band would
agree to admit into membership “such male graduates of the various Indian
boarding and industrial schools as shall from time to time be designated by the
Superintendent General…but such male graduates shall not exceed fifty in
number” (AB at p. 543) (the “1911 Agreement”). The 1911 Agreement also provided
that “the Superintendent General may locate such graduates on whatever quantity
of land, and in whatever portion of the Band’s reserve, as he may deem
advisable…”
[9]
The
1911 Agreement was at first rejected by the band membership, but then approved
in a second vote by 23 for and 10 against. It is not disputed that there is no
provision in the Indian Act for such an agreement.
[10]
Pursuant
to the scheme of colonization and the terms of the 1911 Agreement, numerous
pupils were settled on the Peepeekisis reserve. However, the overall size of
the reserve remained unchanged, thus de facto reducing the reserve land
base available to the original Peepeekisis band members and their descendants. The
large increase in band membership led the Superintendent of Reserves and Trusts
to conclude in 1945 that “it may well be that an investigation into the Band
membership of the Peepeekisis Band, whose original members have been pauperized
in the process, is indicated” (AB at p. 552). Moreover, in 1948, certain
original members of the Peepeekisis band, led by Ernest Goforth (the “Goforth
Group”), called for an investigation into the band membership issue (AB at p.
558), and retained the services of a lawyer to pursue the matter (AB at pp.
559-560).
[11]
A ministerial
committee provided a report to the Registrar dated January 1955 on the subject of
Peepeekisis band membership. This committee made no specific recommendation
with respect to membership issues, but was critical of the actions of Indian
Agent Graham, noting that he may have “used forms of bribery or threat and
disregarded the provisions of the Indian Act in the matter of admissions to
band membership” (AB p. 574), and that an “effort should be made to reach a
settlement with the original Peepeekisis Band members and the so-called
‘newcomers’”, including “the payment of reasonable compensation to the
descendants of the original members of the Band” (AB at pp. 575-576). The
committee further opined (AB at p. 576):
…that while the objectives and
results of the File Hills colony scheme were good in themselves, the methods
adopted by Mr. Graham and the Department of Indian Affairs were high handed and
showed a disregard for the Indian Act and the fact the lands were set aside for
the Peepeekisis Band of Indians. The scheme resulted in the best lands in the
reserve being made available to other Indians contrary to the provisions of the
treaty as interpreted by legislation.
[12]
The
Indian Act was substantially revised in 1951 following the activities of
a Joint Committee of the Senate and the House of Commons examining aboriginal
policy in the aftermath of the Second World War. The 1951 Indian Act
notably introduced a new system of registration for Indians governed by the
Act. This new system allowed for protests and for an adjudicative process to
settle such registration protests. The Goforth Group initiated various band
membership protests in the early 1950’s under these then newly adopted
provisions of the Indian Act.
[13]
As
a result of these membership protests, L. Trelenberg was appointed in 1954 as
commissioner to take evidence. Following these hearings, the Registrar reached
his decisions on the protests. At the request of Ernest Goforth, the
Registrar’s decisions were reviewed by a judge in accordance with subsections
9(3) and (4) of the 1951 Indian Act. On December 13, 1956 Judge J.M.
McFadden reached his decision finding that all residents of the Peepeekisis reserve
whose membership in the Peepeekisis band had been protested were entitled to be
registered as Indians members of that band (AB at pp. 342 to 375).
[14]
After
this decision, Ernest Goforth continued to pursue the matter, but not with
respect to membership protests. In a letter dated August 17, 1957 to the
Director of the Indian Affairs Branch, Mr. Jones, he noted the following (AB at
p. 378):
I am very glad and thankful to have your statement
brought to notice when you say that you feel that there is a moral obligation
toward the original members of the Peepeekisis Band in connection with the
recent decision given to Peepeekisis Band membership. To me that decision is
still out on a limb. Even if Mr. Graham did everything in accordance with the
Indian Act I shall still maintain that the original Indians, according to the
Treaties of 1874, could not then nor can they today say anything or do anything
that will jeopardise the passing on the treaty rights to the future Indian
children. Furthermore, these Indian lands cannot be sold nor can they be
allotted or subdivided according to your present system…In the case of my
few original members I am duty bound to at least get a section of land for
every five persons. If you are taking away the rest of our reserve and giving
it to other Indians without our consent then we certainly are entitled to
certain financial and economic remuneration.
[Emphasis added]
[15]
There
is some indication in the record that there may have been some attempts by
Indian Affairs officials to reach an agreement with the Goforth Group in the
early 1960’s, but all discussions ceased with the death of Mr. Goforth in 1962
(Affidavit of Percy Glen Goforth at paras. 4 and 5, AB at pp. 403-404;
Affidavit of Aubrey Goforth at paras. 11 to 14, AB at pp. 399-400).
[16]
The
record does not disclose any further activity on the claim until after the
adoption by the Government of Canada of the 1982 Specific Claims Policy.
That policy considerably expanded the scope of the federal government’s prior
policy on the matter of claims for mismanagement of Indian land, moneys or
assets. Under the new policy, the Government of Canada committed itself to
resolve through negotiations those claims which relate to the administration of
land and other Indian assets and to the fulfilment of treaties (so-called
“specific claims”) without regard to the strict rules of evidence, to
limitation periods, to the doctrine of laches or to other procedural defences. The
federal government also committed itself to making its internal documents more
easily available for the presentation of specific claims.
[17]
Within
the context of the Specific Claims Policy, the Peepeekisis band started
work directed towards establishing a treaty entitlement claim based on the
Crown’s failure to provide a volume of land consistent with the terms of Treaty
No. 4. This research served to prepare a specific claim related to the scheme
of colonization, which was submitted for negotiations under the Specific
Claims Policy in early May 1986 (Affidavit of Enoch Poitras at paras. 3 and
4, AB pp. 392-393). The Peepeekisis band also initiated this litigation by
filing on April 29, 1992 a Statement of Claim in the Federal Court of Canada
(now the Federal Court). The litigation before the Federal Court of Canada was however
placed in abeyance pending the outcome of the claim process provided for under
the Specific Claims Policy.
[18]
The
claim was eventually brought before the Indian Claims Commission first created
in 1991 as an alternative to the courts under the Specific Claims Policy.
That Commission carried out an inquiry and recommended, on May 28, 2004, that
the claim be accepted for negotiation under the Specific Claims Policy.
The Minister apparently chose to disregard that recommendation on the ground of
res judicata based on his belief that the decision of Judge McFadden applied
to the issues raised by the claim (Judge’s Reasons at para. 7).
[19]
As
a result, the litigation in the Federal Court was reactivated by the filing of
an Amended Statement of Claim on July 21, 2010. The Defendant Crown filed an
Amended Statement of Defence on September 2, 2011.
The Federal Court Judgment
[20]
By
motion filed November 18, 2011, the Crown sought to amend its Amended Statement
of Defence to include a defence based on subsection 2(1) of the Public
Officers’ Protection Act and on paragraph 3(1)(j) of the Limitations
of Actions Act, R.S.S. 1978, c. L-15. It also sought to have the claim
dismissed on two grounds:
(a) first it sought to strike the Amended Statement
of Claim on the ground that it disclosed no reasonable cause of action or was
an abuse of the process in that the issue of entitlement to Band membership had
been conclusively determined by Judge McFadden in 1956 (res judicata);
and
(b) second, it sought to summarily dismiss the claim
on the ground that the limitations set out in the Public Officers’
Protection Act and the Limitations of Actions Act barred the
action.
[21]
The
Judge did not accept the Crown’s submissions on res judicata. He found that
Judge McFadden’s decision of 1956 concerned membership issues which, though
relevant to the claim, did not address the matters of breach of fiduciary duty,
breach of treaty obligations and breach of the Indian Act which may have
resulted from the scheme of colonization and on which the claim primarily
rested (Reasons at paras. 60 to 63).
[22]
The
Judge nevertheless concluded that the claim was barred by limitations periods.
[23]
He
first found that in light of the litigation resulting from the membership protests
and of Judge McFadden’s decision, the essential facts underlying the claim were
widely known in the community and among band members by 1956 at the latest (Reasons
at para. 76). He also found, based on Canada (Attorney General) v.
Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 (“Lameman”), that
limitation periods applied to this type of aboriginal claim (Reasons at para.
77).
[24]
In
the Judge’s view, the claim in this case involved an exercise by the Crown of a
public power or duty (Reasons at para. 81). The Public Officers’ Protection
Act, which was in force in Saskatchewan from 1923 to 2005, provided
that no legal proceeding may be instituted against any person for an act done in
pursuance or execution of a statute or a public duty or authority unless
commenced within twelve months after the act. The Judge therefore found that
the protection available under the Public Officers’ Protection Act of Saskatchewan extended to the Crown in this case (Reasons at para. 82).
[25]
The
Judge concluded that this public duty was rooted in the band list, which list had
to be maintained by the Department of Indian Affairs under the terms of the Indian
Act (Reasons at para. 84). In the Judge’s view, the colonization scheme
involved activity directly arising out of Canada’s statutory mandate to manage
and administer the Peepeekisis reserve, the Band list and reserve assets. The
Judge thus accepted the Crown’s submission that “Canada’s power or duty to
manage and administer the reserve is properly classified as entailing ‘a public
aspect or connotation’ as opposed to being a private enterprise” (Reasons at
para. 87). He further opined that the alleged breaches were not of a private
nature or of an internal or operational character, but rather part of a public
mandate to further the colonization scheme (Reasons at para. 96).
[26]
He
also refused to extend the time limitation provided under the Public
Officers’ Protection Act on the ground of equitable fraud, as had been done
in Guerin v. Canada, [1984] 2 S.C.R. 335 (“Guerin”) and Semiahmoo
Indian Band v. Canada, [1998] 1 FC 3 (FCA) (“Semiahmoo”). He based
this refusal on his finding that the facts underlying the claim were publicly
available (Reasons at paras. 97 to 102) and on his acceptance of the submission
that the Crown would be prejudiced by the passage of time (Reasons at para. 103).
[27]
He
further found that the limitation periods set out in Saskatchewan’s Limitations
of Actions Act also applied (Reasons at paras. 105 to 108).
[28]
Since
the Judge had found that the plaintiffs understood or should have understood
the material facts supporting their case in 1948, or by 1956 by the latest, and
since the statement of claim was filed in 1992, the Judge concluded that the
limitation periods under both the Public Officers’ Protection Act and
the Limitations of Actions Act had long ago applied to bar the claim.
The Issues
[29]
The
principal issues raised by this appeal may be regrouped under the following
questions:
a. Did the Judge err in
finding that the Public Officers’ Protection Act applied to the claim?
b. If so, did he err in
finding that the Limitations of Actions Act applied to the claim?
c. If not, can the
litigation nevertheless be pursued as a declaratory proceeding engaging the honour
of the Crown?
Did
the Judge err in finding that the Public Officers’ Protection Act applied
to the claim?
[30]
Subsection
39(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 and section 32 of
the Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50 provide
that the laws relating to prescription and the limitation of actions in force
in a province apply to any proceedings against the federal Crown, including
proceedings taken in the Federal Court.
[31]
Limitation
of actions periods set out in provincial legislation may thus apply to the type
of claim raised by this litigation (Lameman at paras. 12 and 13; Wewaykum
Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245 (“Wewaykum”)
at paras. 114 to 133; Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 (“Blueberry
River”) at paras. 106-107).
[32]
It
is not disputed that the cause of action in this case originated in Saskatchewan. Subsection 31(3) of the Limitations Act, S.S. 2004, c. L-16.1 provides
that no proceeding shall be commenced with respect to a claim if the former
limitation period expired before the coming into force of that Act, i.e. before
May 1st, 2005. Subsection 2(1) of the Public Officers’ Protection
Act, which was in force in Saskatchewan from 1923 to 2005, provided for the
following:
2(1) No action, prosecution or other proceedings
shall lie or be instituted against any person for an act done in pursuance or
execution or intended execution of a statute, or of a public duty or authority,
or in respect of an alleged neglect or default on the execution of a statute,
public duty or authority, unless it is commenced:
i.
within
twelve months next after the act, neglect or default complained of or, in the
case of continuance of injury or damage, within twelve months after it ceases;
or
ii.
within
such further time as the court or a judge may allow.
[33]
This
provision generally limits to twelve months the time within which an action may
be instituted against a person, including the Crown, acting in furtherance of a
public duty or authority (R.J.G. v. Canada (Attorney General), 2004 SKCA
102, [2006] 1 W.W.R. 599 (“R.J.G.”) at paras. 6 and 15). This
provision is to be interpreted in light of the principles expounded by Binnie
J. in Des Champs v. Conseil des écoles séparées catholiques de langue
française de Prescott-Russell, [1999] 3 S.C.R. 281 (“Des Champs”) (see
R.J.G. at paras. 13 and 18; F.P. v. Saskatchewan, 2004 SKCA 59,
[2006] 3 W.W.R. 257 at paras. 14 and 26).
[34]
Des
Champs
holds (at para. 49) that
provisions
such as subsection 2(1) of the Public Officers’ Protection Act are to be
read restrictively and in favour of the person whose right is being truncated.
It also holds (Des Champs at para. 50) that the fundamental issue to
determine when considering such a provision is whether the power or duty relied
on as part of the cause of action can be properly classified as a “public duty
or authority” having a public aspect or connotation as opposed to a private
administrative or subordinate aspect or a predominantly private aspect.
[35]
The
appellants in this case are fundamentally seeking “damages arising from the
wrongful alienation of their lands and the breach of Canada’s fiduciary
obligation” (Amended Statement of Claim at p. 15 para. (d)). They principally
base their claim on their assertion that “during the period 1897 to 1944 the
reserve was diminished and much of the reserve was alienated by the actions of
the Crown and the Crown’s agent, through the illegal subdivision of the reserve
without the informed and willing consent of the Band” as a result of “a scheme
or program of colonization developed by the Crown’s Agent and other officials
or employees of Canada’s Indian Department”, which scheme was “not created or
carried out for the benefit of the Band or its members” (Amended Statement of
Claim at paras. 8, 8A, 8B and 11).
[36]
In
their Amended Statement of Claim at paras. 12 to 17, the appellants do raise
issues related to the admission of new members into the Peepeekisis band as a
result of the scheme of colonization. However, they do so not to challenge the
membership of any individual band member, but rather to establish the factual
matrix in which to ground their claim for damages based on the Crown’s breach
of its fiduciary duties with respect to the management of the band’s reserve land
(Amended Statement of Claim at paras. 18 to 18E).
[37]
It
is now well settled that the Crown’s fiduciary duty in the management of
reserve land and of other band assets is a sui generis obligation that cannot
be properly classified as a “public duty”. In the seminal case of Guerin v.
The Queen, [1984] 2 S.C.R. 335, Dickson J. stated the following at p. 385:
It
should be noted that fiduciary duties generally arise only with regard to
obligations originating in a private law context. Public law duties, the
performance of which requires the exercise of discretion, do not typically give
rise to a fiduciary relationship. As the "political trust" cases
indicate, the Crown is not normally viewed as a fiduciary in the exercise of
its legislative or administrative function. The mere fact, however, that it is
the Crown which is obligated to act on the Indians' behalf does not of itself
remove the Crown's obligation from the scope of the fiduciary principle. As was
pointed out earlier, the Indians' interest in land is an independent legal
interest. It is not a creation of either the legislative or executive branches
of government. The Crown's obligation to the Indians with respect to that
interest is therefore not a public law duty. While it is not a private law
duty in the strict sense either, it is nonetheless in the nature of a
private law duty. Therefore, in this sui generis relationship,
it is not improper to regard the Crown as a fiduciary.
[Emphasis
added]
Dickson J. further
added the following at p. 387 of Guerin:
I
repeat, the fiduciary obligation which is owed to the Indians by the Crown
is sui generis. Given the unique character both of the
Indians' interest in land and of their historical relationship with the Crown,
the fact that this is so should occasion no surprise.
[Emphasis
added]
[38]
This approach
was reaffirmed in Wewaykum, where Binnie J. explained (at para.
74) the distinction between the public law duties and private law duties of the
Crown in the following terms:
The enduring contribution of Guerin was to recognize that the
concept of political trust did not exhaust the potential legal character of the
multitude of relationships between the Crown and aboriginal people. A
quasi-proprietary interest (e.g., reserve land) could not be put on the
same footing as a government benefits program. The latter will generally
give rise to public law remedies only. The former raises considerations
“in the nature of a private law duty” (Guerin, at p. 385). Put
another way, the existence of a public law duty does not exclude the
possibility that the Crown undertook, in the discharge of that public law duty,
obligations “in the nature of a private law duty” towards aboriginal peoples.
[Emphasis added]
[39]
In that case,
Binnie J. distinguished between the creation of a reserve, which gives rise to
public law duties, and the management of the land within a reserve which has already
been created, which may give rise to private law type duties, particularly
where the land is expropriated by the Crown or where the Crown assumes a
discretionary power over its management. Once a reserve is created, the Crown also
has a private law type duty with respect to “exploitative bargains”, meaning
“that ordinary diligence must be used by the Crown to avoid invasion or
destruction of the band’s quasi-property interest by an exploitative bargain
with third parties or, indeed, exploitation by the Crown itself” (Wewaykum
at para. 100; see also Blueberry River at para. 35).
[40]
In this case,
it appears prima facie from the record that, as a result of the 1911
Agreement, the Crown did assume a discretionary power over the management of
the land situated in the Peepeekisis reserve. Under that Agreement, the
Superintendent General was provided with the authority to admit at his
discretion new band members, and to “locate such graduates on whatever quantity
of land, and in whatever portion of the Band’s reserve, as he may deem
advisable…” (AB at p. 543). The fundamental issue raised by the Amended
Statement of Claim is whether this 1911 Agreement constituted an exploitative
bargain reached in breach of the Crown’s fiduciary duty with respect to the
management of reserve land.
[41]
As I have
explained above, such an issue does not raise a “public law” duty on the part
of the Crown. Rather the duty raised by the proceedings is a sui generis
obligation incumbent on the Crown which is in the nature of a private law duty.
[42]
The
Judge thus erred when he found at para. 96 of his Reasons that the Crown was
acting pursuant to a public duty in bringing new members onto to Peepeekisis reserve
and allotting to them sections of reserve land. No such public duty is set out
in the Indian Act. Moreover, the resettlement scheme itself was
developed not in the interest of the Peepeekisis band, but for other
considerations. It was largely brought about through the 1911 Agreement by
which the Crown’s officers assumed extraordinary discretionary control over
both band membership and the allocation of land in the Peepeekisis reserve. The
issues raised by the proceedings do not consequently flow from a public duty.
The claim is rather largely based on the alleged exploitative bargain resulting
from the 1911 Agreement. As I have noted, such a claim is based on a sui
generis duty of the Crown more akin to a private law duty than to a public
law duty.
[43]
Nor are these
proceedings related to any public duty which may be incumbent on the
Crown or any of its officers with respect to band membership under the Indian
Act. Rather, the issue is the effect of the allotment of reserve land to
new members of the band made at the discretion of the Crown. The distinction is
important, and it was readily recognized by the then Director of the Indian Affairs
Branch when writing about the issue to his Deputy Minister in February 1955 (AB
at p. 582):
As
will be noted, the recommendation is that an effort be made to reach a
compromise settlement with the Indians. There seems no doubt but at the time
new members were brought on to the reserve to participate in the File Hills
Colony scheme, the wishes of the original members and the provisions of the
Indian Act were given scant consideration. The [band membership] protests,
with one exception, could possibly be disallowed on the basis that the
allegations had not been proven either by the protesters or as a result of the
examination of information on file in the Department. That, however, would
not settle the matter. There would undoubtedly be appeals and, although the
judge hearing the appeals might possibly support the decisions of the
Registrar, that would not settle the matter or remove the unjust treatment of
the original band members. The reserve was set aside for the Peepeekisis
Band alone. I concur in the recommendation of the committee [that compensation
be provided under the terms of a settlement] and submit same for your
consideration.
[Emphasis
added]
[44]
Consequently,
the thrust of the claim set out in the Amended Statement of Claim is based on a sui
generis duty of the Crown more akin to a private law duty than to a public
law duty. As a
result, the Public
Officers’ Protection Act
does not apply. The Judge erred in finding otherwise.
Did
the Judge
err in finding that the Limitations of Actions Act applied to the claim?
[45]
As
I have already noted, subsection 31(3) of the Limitations Act, S.S.
2004, c. L-16.1 provides that no proceeding shall be commenced with
respect to a claim if the former limitation period expired before the coming
into force of that Act, i.e. before May 1st, 2005.
[46]
Taking
into account the nature of the claim set out in the Amended Statement of Claim,
the limitation period under any of the prior limitation legislation applicable
in Saskatchewan would have been six years. This would be so under the Limitation
of Actions Act, R.S.S. 1978, c. L-15 or the various versions of that Act
which preceded it, which are all similar in their essential elements.
[47]
The
claim described in the Amended Statement of Claim is largely based on the sui
generis fiduciary duty of the Crown. It may thus be properly viewed as
coming within the ambit of paragraph 3(1)(j) of the Limitations of Actions
Act which provides that for
“any other action not in this Act or any other Act specifically provided for”
there is a limitation period set at “within six years after the cause of action
arose.” (see Wewaykum at para. 131). This limitation period may however be
extended “when the cause of action has been concealed by the fraud of the
person setting up this Part…as a defence”, in which case, “the cause of action
shall be deemed to have arisen when the fraud was first known or discovered” (Limitations
of Actions Act, section 4).
[48]
The
appellants principally submit that the material facts underlying their claim
were concealed by the Crown. Though I agree with the appellants that the fraudulent
concealment necessary to suspend the operation of the limitation period need
not amount to deceit or common law fraud (Guerin at p. 390; M(K.) v.
M. (H.), [1992] 3 S.C.R. 6 at pp. 56-57; Semiahmoo at paras. 79-80),
there must nevertheless at the very least be some form of concealment. In this
case, it is abundantly clear from the record that, by the 1950’s, a large
segment of the membership of the Peepeekisis band was aware of the essential
material facts underlying the cause of action set out in the Amended Statement
of Claim. During this decade, numerous membership protests were initiated and
pursued, and the basic facts concerning the claim were clearly publicly known.
As a result, I cannot conclude that there was a concealment of material facts
by the Crown.
[49]
The
appellants however add that even if the material facts supporting the claim
were known to certain band members by the 1950’s (notably the Goforth Group),
that knowledge cannot be imputed to the band itself. I disagree. For the purposes
of limitation periods, it suffices that the band members directly affected were
aware of the material facts underlying the claim (Lameman at para. 17). In this
case, there is no doubt that the descendants of the original members of the
Peepeekisis band, as represented by the Goforth Group, were aware of the
pertinent material facts at least by the 1950’s, and did in fact pursue a claim
against the Crown, albeit outside a judicial forum.
[50]
The
appellants also rely on this Court’s decision in Semiahmoo, where Isaac
C.J. noted (at paras. 84 to 86) that it has been only since the Supreme Court’s
1984 decision in Guerin that Indian bands have been able, from a
practical point of view, to exercise their legal rights with respect to breaches
of the Crown’s fiduciary duty. I agree that prior to Guerin, the
so-called “political trust” theory of the Crown-aboriginal relationship made it
difficult for First Nations to resort to the courts to pursue a claim based on the
Crown’s mismanagement of reserve land. The Supreme Court of Canada has
nevertheless, since Guerin, stated that limitation periods apply to such
a claim from the discovery of the material facts underlying it (Wewaykum;
Lameman). In any event, even if Guerin was taken as the starting
point of the limitation period, the action in this case would still be time barred.
[51]
The appellants
also submit that the Crown’s breach of its fiduciary duty should be viewed as a
continuing breach. I disagree. In Wewaykum, the Supreme Court dismissed
a similar argument made by the plaintiffs in that case, noting (at para. 135)
that “[a]cceptance of such a position would, of course, defeat the legislative
purpose of limitation periods.”
[52]
Consequently,
and in
light of the record before me, I agree with the Judge that the claim disclosed
by the Amended Statement of Claim was barred by statutory limitation periods.
May the litigation
nevertheless be pursued as a declaratory proceeding engaging the honour of the
Crown?
[53]
The
appellants also rely on the recent decision of the Supreme Court of Canada in Manitoba
Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 (“Manitoba
Métis”). In that case, McLachlin C.J.
and Karakatsanis J. found that a “claim based on the honour of the Crown is not
barred by the law of limitations or the equitable doctrine of laches” and that
as a result “the Métis are entitled to a declaration that Canada failed to implement s. 31 [of the Manitoba Act, 1870, S.C. 1870 c. 3] as
required by the honour of the Crown” (Manitoba Métis, at para. 9).
[54]
Of particular
interest to these proceedings, Manitoba Métis stands for the proposition
that the law of limitations does not apply so as to preclude a declaration that
a specific obligation set out in the Constitution was not fulfilled in the
manner demanded by the Crown’s honour (Manitoba Métis, at paras. 133 to
144).
[55]
The honour of
the Crown is not only engaged where an explicit obligation to an Aboriginal
group is enshrined in the Constitution, it is engaged in all situations
involving the reconciliation of Aboriginal rights with Crown sovereignty. This
includes with respect to the interpretation and implementation of treaties or
where section 35 of the Constitution Act, 1982 is engaged (Manitoba
Métis at paras. 68 to 72).
[56]
In this case,
the appellants submit that their claim engages the honour of the Crown in the
fulfillment and implementation of its treaty promises relating to the setting
aside of reserve lands for the Peepeekisis band. The honour of the Crown has
indeed been found to be engaged with respect to the fulfillment and
implementation of treaties made with aboriginal peoples (Province of Ontario
v. Dominion of Canada, (1895), 25 S.C.R. 434 at p. 512 per Gwynne J.,
dissenting; Mikisew Cree First Nation v. Canada (Minister of Canadian
Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 at para. 51; R. v. Badger,
[1996] 1 S.C.R. 771 at paras. 41 and 47; R. v. Marshall, [1999] 3 S.C.R.
456, at para. 43; Haida Nation v. British Columbia (Minister of Forests),
2004 SCC 73, [2004] 3 S.C.R. 511 at paras. 19-20; Manitoba Métis at
paras. 73
and 79).
[57]
The
appellants consequently submit that, as a logical result of Manitoba Métis,
their claim should be allowed to continue as a declaratory action involving the
Crown’s honour, and this irrespective of any statutory limitation period which
may otherwise apply. As noted by Rothstein J. in his dissenting opinion in Manitoba
Métis at para. 254, “it appears that the majority [in Manitoba Métis]
has departed from the legal certainty created by Wewaykum and Lameman,
in favour of an approach where ‘reconciliation’ must be given priority.”
[58]
For its part,
the respondent Crown submits that the principles set out in Manitoba Métis
are strictly limited to constitutional obligations enshrined in the
Constitution. The respondent adds that since no constitutional type of relief
is at issue in this case, Manitoba Métis does not apply.
[59]
I need not
however decide this issue since I am of the view that the principles set out in
Manitoba Métis cannot extend to cases where an effective alternative
dispute resolution mechanism is available to the plaintiffs. The majority in Manitoba
Métis based their finding concerning the non-applicability of limitation
statutes by emphasizing the goal of reconciliation recognized in section 35 of
the Constitution Act, 1982 (Manitoba Métis at paras. 140-141).
The majority in that case also emphasized the fact that no other recourse was
available to the plaintiffs, and that “declaratory relief may be the only
way to give effect to the honour of the Crown” (Manitoba Métis at
para. 143, [Emphasis added]).
[60]
In
this case, there exists an alternative effective recourse giving effect to the
honour of the Crown and allowing for the goal of reconciliation to be achieved.
Indeed, by following the process set out in the Specific Claims Tribunal Act,
S.C. 2008, c. 22, the appellants may now pursue their claim before the
independent Specific Claims Tribunal composed of a roster of superior court
judges. That Tribunal does not consider any rule or doctrine that would
have the effect of limiting claims or prescribing rights against the Crown
because of the passage of time or delay, and it may award monetary compensation
up to $150 million with respect to a specific claim described in section 14 of
the Specific Claims Tribunal Act.
[61]
The
specific claims contemplated by the Specific Claims Tribunal Act include
those arising from (a) a breach of a legal obligation of the Crown to provide
lands or other assets under a treaty; (b) a breach of a legal obligation of the
Crown under the Indian Act or any other legislation pertaining to
Indians or lands reserved for Indians; (c) a breach of a legal
obligation arising from the Crown’s provision or non-provision of reserve
lands, including unilateral undertakings that give rise to a fiduciary
obligation at law, or the Crown’s administration of reserve lands, Indian
moneys or other assets of a First Nation; (d)
an illegal lease or disposition by the Crown of reserve lands; (e) a failure to provide adequate compensation for
reserve lands taken or damaged by the Crown or any of its agencies under legal
authority; or (f) fraud by employees or agents of the Crown in connection
with the acquisition, leasing or disposition of reserve lands.
[62]
Following
Manitoba Métis, it remains an open question whether a declaratory action
based on the honour of the Crown could be pursued before the Federal Court in
the absence of the Specific Claims Tribunal Act. However, in the
circumstances of this case, and in light of the terms of the Specific Claims
Tribunal Act, it is not necessary in this case to answer that question. It
is sufficient to note that the appellant’s claim is barred from proceeding in
the Federal Court by the effect of statutory limitation periods, and that any
possible declaratory relief with respect to that claim based on the honour of
the Crown would not give rise to any entitlement to pursue the matter in the
Federal Court in light of the availability of an effective alternative recourse
under the Specific Claims Tribunal Act.
Conclusion
[63]
For these
reasons, I would dismiss this appeal, with costs in favour of the respondent.
"Robert M. Mainville"
“I
agree.
Pierre Blais C.J.”
“I
agree.
D.G. Near J.A.”
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