|MANITOBA METIS CASE REACHES THE SUPREME COURT
The voice of the Manitoba Métis, who believe they were betrayed by Canada’s government in the 1870s and 1880s, will finally be heard. In the Supreme Court of Canada on December 13, 2011, Thomas R. Berger, Q.C. and Jim Aldridge, Q.C. will argue the Manitoba Métis Federation (MMF) case. The argument is that Ottawa failed altogether to fulfill the constitutional obligations to the Métis it assumed in 1870 when Canada and the Métis negotiated the entry of Manitoba into Confederation.
The Métis are not seeking damages, but are asking the Supreme Court to declare that Canada failed to fulfill its constitutional obligation to the Métis and their children. Such a declaration would, they believe, lead to negotiations for the purpose of achieving reconciliation between the Métis and the Crown. This has already occurred with Canada’s other Aboriginal peoples – the First Nations and the Inuit.
Mr. Berger is well known for arguing the Calder (Nisga’a) case, in which the Supreme Court in 1973 recognized the place of Aboriginal title in Canadian law. The judgement in the case was instrumental in persuading the federal government to settle First Nations and Inuit land claims. Mr. Aldridge was lead legal counsel to the Nisga’a Nation in the negotiation of the Nisga’a Final Agreement, the first modern treaty in British Columbia.
David Chartrand, president of the MMF for past 14 years, grew up in Duck Bay, Man. According to President Chartrand, “This case represents the unfinished business of Confederation. The Métis’ strong sense of community shaped the west. Now is the time to tell the Métis story.”
The MMF launched the Manitoba Métis case 30 years ago. In preparing the case Berger’s team spent more than two years researching the National Archives of Canada for documentary evidence that now forms the backbone of the Métis action.
Associate Chief Justice Oliphant, Manitoba Court of Queen’s Bench, commented, at an earlier stage of the proceedings on February 7, 2002. “The significance of the issues to be resolved by this litigation has not been lost upon me. Although the plaintiff’s claim here is for declaratory relief as opposed to damages, if the plaintiffs succeed, the ramifications of that success will undoubtedly be felt by all Canadians.”
A thumbnail sketch of the case follows.
Contact and Interviews:
Frank Coyle, MMF Communications, firstname.lastname@example.org 204-232-5737
Diana Crosbie, President, Crosbie Communications, email@example.com 416-360-6625
We would be pleased to assist you if you would like to talk to MMF President David Chartrand, with lawyers Mr. Berger or Mr. Aldridge, receive a copy of the Appellants’ Factum filed with the Supreme Court of Canada, or copies of earlier judgements of the Manitoba Courts.
THE CASE FOR THE MANITOBA MÉTIS
The case involves two great figures, Sir John A. Macdonald and Louis Riel, and the promise of land for the Métis people.
It goes back to 1869-70 and the negotiations between the government of Canada and the Provisional Government established by the Métis of the Red River Settlement, headed by Riel.
In 1870 the Red River Settlement had 12,000 people; 10,000 were Métis. Seven thousand of the Métis were children.
Promises by the federal government contained in the Manitoba Act of 1870 were supposed to confirm the possession of land held by the Métis settlers along the Red and Assiniboine Rivers.
The Federal Government also assumed the responsibility to appropriate 1.4 million acres and to distribute it among the 7,000 Métis children.
It was on the strength of these and other promises that the Métis laid down their arms and agreed that Manitoba should enter Canada.
The Métis established at the trial of the case that the distribution of 1.4 million acres to the 7,000 Métis children was delayed for a decade and more. Indeed almost a thousand children received no land at all.
The Métis lands were traditionally held by extended families along the Red, Assiniboine and other rivers. But no provision was made for the children’s lands to be contiguous or clustered together. Instead, Ottawa ordered the land to be distributed by lottery in each parish. The result was that each child’s land might be 10, 20, 30 or 40 miles from their parents and their siblings.
The Métis rely on what Sir John A. Macdonald and his colleague, Sir George-Etienne Cartier told the House when piloting the legislation through Parliament.
Macdonald told the House of Commons on May 2, 1870 that the grant of 1.4 million acres was “for purposes of settlement by their children.” On May 4, he said “No land would be reserved for the benefit of white speculators, the land being only given for the actual purpose of settlement.”
A year later, Sir George-Etienne Cartier told the House on April 13, 1871 that “Until the children came of age the government were the guardians of the land, and no speculators would be suffered to get hold of it.”
The Liberal government of Alexander Mackenzie, in office from 1873 to 1878, took the same position: Sir Richard Scott, Secretary of State, told the Senate on March 14, 1877: “The Government were the guardians of these people, and it was their duty to see that they were protected in their rights to their properties.”
The trial judge and the Manitoba Court of Appeal held that these provisions of the Manitoba Act were intended to provide a “head start” for the Métis against the influx of new settlers.
But in the meantime a great influx of settlers from Ontario had entered the new province. They received their land without delay. There was no “head start” for the Métis. In fact they did not get to the start line for ten years or more.
Paragraph 200 in the MMF Factum sums up the situation. “By the time the grants were finally issued in the names of the children the Métis had been in Macdonald’s phrase, “swamped by the influx of settlers”. The Métis had become marginalized and were now, to a great extent, a landless minority. It may be that half the Métis population had left Manitoba by 1881.”
Argument of MMF Case
The Manitoba Métis Federation, in showing that there was an inexcusable delay in implementing the original promises, argues that there was a breach of fiduciary obligation by Canada, which left the Métis a marginalized minority in the province. The breach by Canada was a breach of a constitutional obligation.
The Manitoba government then passed a series of laws which the MMF alleges were designed to ensure the children's grants passed from Métis ownership to non-Métis ownership. The MMF says that these laws were unconstitutional.
The MMF will argue that since the federal government had a constitutional obligation to the Métis and their children that it failed to fulfill, the Supreme Court of Canada, notwithstanding the passage of time, can rule on the question, since it involves the place of the Métis within the constitutional system.
History of Case
The Métis lost in the Manitoba courts. The trial judge and the Manitoba Court of Appeal held that there had been no breach of fiduciary obligation, even though both held the purpose of the grant of 1.4 million acres was to give the Métis families and their children “a head start.” The Supreme Court of Canada earlier this year agreed to hear their appeal.
For More Information:
Supreme Court of Canada website: http://www.scc-csc.gc.ca/home-accueil/index-eng.asp .
SCC Case Information: #33880 Manitoba Métis Federation Inc., et al. v. Attorney General of Canada, et al.