Expanding the honour of the Crown

Members of the Quebec National Assembly may no longer take an oath of allegiance to the Crown, but the honour of the Crown is the furthest thing from being a relic of the past.

The fundamental, unwritten constitutional principle that requires provincial and federal governments to act honourably and with integrity, good faith, fairness, and respect in their dealings with Indigenous peoples remains a vital legal instrument in the province.

It stems from the recognition, under section 35 of the Constitution Act, 1982, of Aboriginal and treaty rights, and mandates the Crown to reconcile its sovereignty with pre-existing Indigenous rights.

The Supreme Court’s 2024 decision in Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan expanded the application to certain contracts and agreements with Indigenous groups and governing bodies that are not constitutional in nature.

The case involved an agreement among the federal and provincial governments and the Pekuakamiulnuatsh First Nation to establish and maintain an Indigenous police service to provide culturally appropriate policing to the community.

After four years of inadequate funding and operating deficits, the Pekuakamiulnuatsh sought compensation, claiming that the provincial and federal governments’ refusal to negotiate breached the honour of the Crown and the good-faith requirements of the Civil Code of Québec.

More than a year on, Marie-Ève Dumont, a lawyer with Dionne Schulze in Montreal who works mainly in First Nations law, says the case marked an important shift in jurisprudence. While the honour of the Crown dates back to Aboriginal agreements with the French, then the British, she says there’s now confirmation that it applies to agreements that are not constitutional, including beyond treaty rights.

“This is a change that offers a tool that is very interesting for Aboriginal parties and the lawyers who represent them because now we have recognition by the Supreme Court that even in a case where an agreement that is not necessarily protected by section 35, the Crown must always act honourably.”

Even though the Pekuakamiulnuatsh were responsible for deficits in policing, which was “written in black and white in the agreement,” and Quebec argued it had shown good faith by paying what it had agreed to pay, Dumont says the Quebec Court of Appeal and the Supreme Court still found the provincial and federal governments displayed a lack of good faith in renegotiating the agreement.

The Supreme Court said the Crown did not account for the real needs of First Nations policing, branding the negotiations as bad faith and “sharp dealing.”

Although Pekuakamiulnuatsh Takuhikan is a relatively recent decision, Dumont says it had an impact from the moment it was argued before the Supreme Court. It influenced the landmark decision in Restoule, which found that reconciliatory justice called for updating the Crown’s sacred promise to share natural resource revenues with Ontario First Nations. The top court said in July 2024 that the Crown had breached its treaty obligations to the Anishinaabe by failing to increase annual annuity payments under the 1850 Robinson Treaties.

In the January 2025 decision in Innus of Uashat and ManiUtenam v. HydroQuébec, Quebec Superior Court Justice Thomas M. Davis ruled that Hydro-Québec was not simply an energy utility, but an agent of the Crown. Further, it had violated its honour of the Crown obligations and acted in “institutional bad faith” by reneging on a commitment to compensate the Innu communities for a transmission line through their territory.

In Manitoba, Federal Court Judge Paul Favel accepted two class actions by First Nations’ communities related to adequate housing and safe drinking water. The cases argue that decades of chronic underfunding and systemic neglect by Ottawa violated the Charter of Rights and Freedoms, the common-law duty of care, and the Crown’s unique fiduciary obligations to Indigenous peoples.

During a recent CBA webinar discussion about Pekuakamiulnuatsh Takuhikan, Naiomi Metallic, KC, the Chancellor's Chair in Aboriginal Law and Policy at Dalhousie University, who hails from the Listuguj Mi'gmaq First Nation in Quebec, said the decision “gives teeth to the honour of the Crown” and should be coupled with “Indigenous difference.”

Nadir André, a partner with JFK Law in Kahnawake, told those gathered there’s “an evolution” underway.

“Now First Nations can seek financial compensation when they can demonstrate a breach in honour of the Crown, which was not the case previously,” he said, noting it’s also about working with the notion of the right of self-determination, with UNDRIP, and with free, prior, informed consent.

“All these contextual elements relative to the interpretation of section 35, with UNDRIP, reformulate the law concerning First Nations in a new direction, giving us much more power than previously."