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Unfinished Business in Confederation

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Unfinished Business in Confederation Understanding the Supreme Court of Canada’s Decision in the Manitoba Métis Federation Case “There were two societies who treated together. One was small, but in its smallness had its rights. The other was great, but in its greatness had no greater rights Unfinished Business than the rights of the small.” in Confederation Louis Riel Understanding the Supreme Court of Canada’s 1 Unfinished Business in Confederation 1 Decision in the Manitoba Métis Federation Case The History of the MMF The MMF lost again at the Manitoba Court of Appeal in 2010. The Court of Case: “The Third Time is Appeal, recognizing that this was an the Charm” historic case, sat five judges instead Overview of Document of their usual three to hear the appeal. The MMF case was launched in It rejected the trial judge’s view that This document was prepared by Métis lawyers 1981. The Manitoba Métis sought a aboriginal title was essential to the Jason Madden and Jean Teillet at the request of declaration that the lands they were fiduciary duty claim, but then found promised in the Manitoba Act, 1870 it unnecessary to make any decision the Manitoba Métis Federation (MMF). It provides were not provided in accordance with with respect to the fiduciary duty claim. an overview and summary of the Supreme Court the Crown’s fiduciary and honour of the The Court of Appeal said the trial Crown obligations. They also sought judge’s findings of fact did not support of Canada’s landmark decision in Manitoba Métis a declaration that certain legislation any breach of the duty. It rejected any Federation v. Canada (Attorney General), [2013] S.C.J. passed by the Manitoba Government claim with respect to the honour of the that affected the implementation of Crown and held that the entire claim No. 14 (the “MMF case”). The document is not legal the Manitoba Act was not within the was moot because there was no live advice and should not be relied upon as such. Nor jurisdiction of the province. controversy. It upheld the trial judge’s do the legal interpretations and conclusions in the In 2007, after 26 years of litigation and finding that the MMF had no standing having to go all the way to the Supreme to bring the case. document necessarily reflect the positions of the MMF. Court of Canada to address procedural Victory finally arrived at the Supreme issues in order to even proceed with Court of Canada. The Supreme Court the claim, the MMF lost at trial. Justice handed down its reasons for judgment MacInnes of the Manitoba Court of on March 8, 2013. They granted the Queen’s Bench dismissed the action. MMF’s appeal and held that the federal He found that there was lengthy delay Crown failed to implement the land in implementing the land provisions of grant provision set out in s. 31 of the the Manitoba Act and that the delay Manitoba Act, 1870 in accordance with was due to government error and the honour of the Crown. The Supreme inaction. However, he found that there Court also granted the MMF standing was no fiduciary duty or a duty based and gave them costs throughout. on the honour of the Crown. The trial judge took the view that a fiduciary duty required proof that the Métis held the land collectively prior to 1870. Since the evidence showed that the Métis held their lands individually, he concluded the claims failed. He also held that the claim was filed too late and was barred by limitation periods and the delay. Finally, he denied the MMF standing. In effect, he held that the while the individual plaintiffs were capable of bringing the claim, the MMF was not. Understanding the Supreme Court of Canada’s 1 Unfinished Business in Confederation 2 Decision in the Manitoba Métis Federation Case The Story of the deeply concerned that Canadian control Manitoba Act was made part of the The Standing of the would threaten their traditional way Constitution of Canada in 1871. Manitoba Métis and the of life. They were particularly worried MMF in the Case: “The Manitoba Act: Canada’s about the arrival of a wave of English- The Canadian government began the Body Representing the Negotiating Partners in speaking Protestant settlers. Canada process of implementing s. 31 in early Collective Métis Interest” sent out survey parties in 1869 and the 1871. The first step was to set aside the Confederation Métis, led by Louis Riel, turned them 1.4 million acres; the second step was In court cases, standing refers to an to divide the land among the children. In order to understand this case, we back. They also turned back Canada’s individual or a group having the capacity proposed Lieutenant Governor. Then, in There were numerous problems, errors and authority to bring a legal claim. have to go back to the 1860s. The Métis and delays. Changes of government, had created a vibrant community at November 1869, the Métis seized Upper The plaintiffs in the case are the MMF Fort Garry and established a provisional inaccurate census information, and several named individuals. The Red River in the early 1800s. By 1869 botched allotment processes and there were 12,000 inhabitants, of which government. The Métis government individuals were or are members of the drafted a list of demands that Canada land speculation combined to entirely MMF Board of Directors. The Crown took 10,000 were Métis and 7,000 of those defeat the purpose of s. 31. In the Métis were children. Canada became had to satisfy before the Red River no issue with the individual plaintiffs, Métis would accept Canadian control. result, virtually no children actually but fought vigorously to keep the MMF a new country in 1867 and wanted to received land. expand westward. Plans were made to Riel sent three negotiators to Ottawa. out of the claim. The Crown argued that In March 1870, negotiations began the MMF had no interest in the litigation negotiate Rupert’s Land into Canada, During the same time, the position of between the Red River representatives, because the lands were not set aside for and as a first step ownership of the the Métis in Red River deteriorated. The Prime Minister Sir John A. Macdonald the MMF or any representative body; Hudson’s Bay Company’s interest in new settlers from Ontario were hostile, and George-Etienne Cartier (Minister of rather, the matter was strictly about Rupert’s Land was transferred to there was a “reign of terror” against the Militia and Defence). individual entitlements. The Crown Canada in 1868. As a result, Canada Métis, the lands were being taken up also said that the MMF’s membership considered itself to be the owner of the by the Ontario settlers, and no lands When Canada determined that it would was broader than the descendants of s. Red River Settlement. were forthcoming for the Métis. As a retain ownership of the public lands in 31 beneficiaries, making the MMF an result, many Métis sold their promised “The Canadian government, Manitoba, the Red River negotiators inappropriate plaintiff. countered by demanding land. This interests in the land and moved outside led by Prime Minister John A. of the province they helped to create. Macdonald, embarked on a policy took two forms: a provision to protect The Supreme Court rejected this existing land holdings of the 3,000 argument, holding that the presence aimed at bringing the western “This appeal is about obligations Métis adult land holders (s. 32); and of other claimants does not preclude territories within the boundaries to the Métis people enshrined a provision to give the 7,000 Métis standing. The question was whether of Canada, and opening them up in the Manitoba Act … These children a “head start” in the province this litigation was a reasonable and to settlement. This meant dealing promises were directed at with a land grant of 1.4 million acres (s. effective means to bring a challenge with the indigenous peoples enabling the Métis people 31). On the basis of these promises, to court. The Court held that the who were living in the western and their descendants to the Métis agreed to lay down their arms requirements for public interest territories. On the prairies, these obtain a lasting place in the as Canada’s negotiation partner to bring standing should be flexible and consisted mainly of two groups new province. Sadly, the Manitoba into Confederation. This generous and considered in light of -- the First Nations, and the expectations of the Métis were is one of the foundational deals that the underlying purposes of setting descendants of unions between not fulfilled, and they scattered led to Canada’s expansion westward. limits on who has standing in court. white traders and explorers and in the face of the settlement that These types of deals are often called Aboriginal women, now known as marked the ensuing decades.” the “compacts of Confederation.” Métis.” – MMF Case, paras. 1-2 – MMF Case, para. 5 These compacts go to the heart and The Métis in Red River, however, did soul of Canada. Manitoba became not agree with the transfer and were part of Canada on July 15, 1870. The Understanding the Supreme Court of Canada’s 3 Unfinished Business in Confederation 4 Decision in the Manitoba Métis Federation Case “This collective claim merits on whose behalf he is acting, to not a collectively-held “Aboriginal The MMF Claim: The allowing the body representing avoid all conflicts of interest and to interest in the land”.
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