2010 Carswellman 322, 2010 MBCA 71, [2010] 3 C.N.L.R. 233, 94 R.P.R

FOR EDUCATIONAL USE ONLY Page 1 2010 CarswellMan 322, 2010 MBCA 71, [2010] 3 C.N.L.R. 233, 94 R.P.R. (4th) 161, [2010] 12 W.W.R. 599, 255 Man. R. (2d) 167, 486 W.A.C. 167, 216 C.R.R. (2d) 144 2010 CarswellMan 322, 2010 MBCA 71, [2010] 3 C.N.L.R. 233, 94 R.P.R. (4th) 161, [2010] 12 W.W.R. 599, 255 Man. R. (2d) 167, 486 W.A.C. 167, 216 C.R.R. (2d) 144 03; 358209720; 360713781; 361298641Manitoba Métis Federation Inc. v. Canada (Attorney General) 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) and ATTORNEY GEN- ERAL OF CANADA and ATTORNEY GENERAL OF MANITOBA (Defendants / Respondents) Manitoba Court of Appeal Richard J. Scott C.J.M., Michel A. Monnin, Freda M. Steel, Barbara M. Hamilton, Martin H. Freedman JJ.A. Heard: February 17-20, 23-26, 2009 Judgment: July 7, 2010 Docket: AI 08-30-06872 © Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Proceedings: affirming Manitoba Métis Federation Inc. v. Canada (Attorney General) (2007), [2008] 2 C.N.L.R. 52, 2007 MBQB 293, 2007 CarswellMan 500, 223 Man. R. (2d) 42, [2008] 4 W.W.R. 402 (Man. Q.B.) Counsel: T.R. Berger, Q.C., J. Aldridge, Q.C., H.I. Schachter for Appellants R.A. Dewar, Q.C., P.R. Anderson, C.D. Clark for Respondent, Attorney General of Canada H.S. Leonoff, Q.C., M.A. Conner for Respondent, Attorney General of Manitoba Subject: Civil Practice and Procedure; Public; Constitutional; Property Civil practice and procedure --- Limitation of actions — Actions involving Crown — Miscellaneous Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act and to land and other rights under s. 32 of Act — Action was dismissed — Appellants appealed — Appeal dismissed — Appellants' claim for declaration that Crown breached fiduciary duty under ss. 31 and 32 of Act was statute-barred — Request for declaration of constitutional invalidity of relevant Or- ders in Council and statutes of Canada and Manitoba was not subject to statutory limitation period. © 2011 Thomson Reuters. No Claim to Orig. Govt. Works FOR EDUCATIONAL USE ONLY Page 2 2010 CarswellMan 322, 2010 MBCA 71, [2010] 3 C.N.L.R. 233, 94 R.P.R. (4th) 161, [2010] 12 W.W.R. 599, 255 Man. R. (2d) 167, 486 W.A.C. 167, 216 C.R.R. (2d) 144 Civil practice and procedure --- Limitation of actions — Actions involving Crown — Laches and acquiescence Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act and to land and other rights under s. 32 of Act — Action was dismissed — Appellants appealed — Appeal dismissed — Appellants' claim for declaration that Crown breached fiduciary duty under ss. 31 and 32 of Act was statute-barred — Request for declaration of constitutional invalidity of relevant Or- ders in Council and statutes of Canada and Manitoba was not subject to statutory limitation period. Aboriginal law --- Practice and procedure — Parties — Miscellaneous Standing — Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Man- itoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act and to land and other rights under s. 32 of Act — Action was dismissed — Appellants appealed — Appeal dismissed — Trial judge did not commit palpable and overriding error when he concluded that appellants failed to prove any breach of duty with respect to any of five specific complaints made by appellants — This being so, it was unnecessary to decide whether in particular circumstances crown did in fact owe fiduciary obligation to appellants — With respect to s. 32, trial judge did not err when he found obligations associated with s. 32 did not arise in context of Crown-Aboriginal relationship — He was correct to conclude there was no fiduciary duty or obligation owed to settlers — Test for determining whether fiduciary obligation existed within Crown-Aboriginal relationship was composed of two parts: specific or cognizable interest and undertaking of discretionary control by Crown in nature of private law duty — Finding of Aboriginal title was not essential component of Crown- Aboriginal fiduciary duty or obligation. Civil practice and procedure --- Judgments and orders — Res judicata and issue estoppel — Issue estoppel — Miscel- laneous Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act and to land and other rights under s. 32 of Act — Action was dismissed — Appellants appealed — Appeal dismissed — Trial judge did not commit palpable and overriding error when he concluded that appellants failed to prove any breach of duty with respect to any of five specific complaints made by appellants — This being so, it was unnecessary to decide whether in particular circumstances crown did in fact owe fiduciary obligation to appellants — With respect to s. 32, trial judge did not err when he found obligations associated with s. 32 did not arise in context of Crown-Aboriginal relationship — He was correct to conclude there was no fiduciary duty or obligation owed to settlers — Test for determining whether fiduciary obligation existed within Crown-Aboriginal relationship was composed of two parts: specific or cognizable interest and undertaking of discretionary control by Crown in © 2011 Thomson Reuters. No Claim to Orig. Govt. Works FOR EDUCATIONAL USE ONLY Page 3 2010 CarswellMan 322, 2010 MBCA 71, [2010] 3 C.N.L.R. 233, 94 R.P.R. (4th) 161, [2010] 12 W.W.R. 599, 255 Man. R. (2d) 167, 486 W.A.C. 167, 216 C.R.R. (2d) 144 nature of private law duty — Finding of Aboriginal title was not essential component of Crown-Aboriginal fiduciary duty or obligation. Constitutional law --- Procedure in constitutional challenges — Standing. Civil practice and procedure --- Parties — Standing. Cases considered by Richard J. Scott C.J.M.: Aikins v. Black (July 4, 1879), Wood C.J. (Man. Q.B.) — considered Amax Potash Ltd. v. Saskatchewan (1976), 1976 CarswellSask 76, [1976] 6 W.W.R. 61, 11 N.R. 222, 71 D.L.R. (3d) 1, [1977] 2 S.C.R. 576, 1976 CarswellSask 115 (S.C.C.) — considered Andrews v. Coxe (2003), 320 A.R. 258, 288 W.A.C. 258, 2003 ABCA 52, 2003 CarswellAlta 230 (Alta. C.A.) — considered Apsassin v. Canada (Department of Indian Affairs & Northern Development) (1995), (sub nom. Blueberry River In- dian Band v. Canada (Department of Indian Affairs & Northern Development)) 130 D.L.R. (4th) 193, (sub nom. Blueberry River Indian Band v. Canada (Department of Indian Affairs & Northern Development)) [1995] 4 S.C.R. 344, (sub nom. Blueberry River Indian Band v. Canada (Department of Indian Affairs & Northern Development)) [1996] 2 C.N.L.R. 25, (sub nom. Blueberry River Indian Band v. Canada (Minister of Indian Affairs & Northern De- velopment)) 190 N.R. 89, (sub nom. Blueberry River Indian Band v. Canada (Minister of Indian Affairs & Northern Development)) 102 F.T.R. 160 (note), 1995 CarswellNat 1279, 1995 CarswellNat 1278 (S.C.C.) — followed Authorson (Litigation Guardian of) v. Canada (Attorney General) (2002), (sub nom. Authorson v. Canada (Attorney General)) 157 O.A.C. 278, 58 O.R. (3d) 417, 2002 C.E.B. & P.G.R. 8448 (note), 2002 CarswellOnt 815, 33 C.C.P.B. 1, 215 D.L.R. (4th) 496, (sub nom. Authorson v. Canada (Attorney General)) 92 C.R.R. (2d) 224 (Ont. C.A.) — followed Authorson (Litigation Guardian of) v. Canada (Attorney General) (2003), (sub nom.

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