Understanding the ’s Decision in the 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

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 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 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 , 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”. The Métis held the collective Métis interest to strictly account for all property held individual interests in land that arose Federal Government come before the court. We would or administered on behalf of that from their personal histories, not from Breached the Honour grant the MMF standing.” – MMF person. The Supreme Court held that their shared Métis identity. The facts of the Crown in Case, para. 44 the relationship between the Métis of how the Métis in the Red River held and the Crown was and is fiduciary in their land interests were incompatible Implementing Section 31 The Court held that this case was nature; however, that does not mean with a claimed collective aboriginal of the Manitoba Act not a series of claims for individual all dealings between the Crown and interest in land. relief; rather, it was a collective claim Métis give rise to fiduciary duties. The honour of the Crown is a principle for declarations for the purposes of Fiduciary duties will generally arise The Supreme Court also dismissed the that requires servants of the Crown to act advancing reconciliation between the only where the fiduciary has control idea that the language of s. 31 meant with honour on behalf of the sovereign. descendants of the Red River Métis over specific aboriginal interests or that the Métis had a collective interest The honour of the Crown arises from and Canada. While the Manitoba Act from an explicit undertaking. in the lands. While s. 31 stated that the Crown’s assertion of sovereignty over provided for individual entitlements, the land grants were “towards the aboriginal people and its actual control of that did not negate the fact that the There was no dispute that the Crown extinguishment of the Indian Title to land and resources that were formerly in appellants advanced a collective claim undertook discretionary control over the lands in the Province” and that the the control of that people. The honour of of the Manitoba Métis. This claim the administration of land grants land grant was for “the benefit of the the Crown is a very old idea and stretches was based on a promise made in under ss. 31 and 32; the question was families of the half-breed residents,” back to the Royal Proclamation of 1763. return for their agreement to recognize whether there was a specific collective the lack of any underlying collective It is not a paternalistic concept; instead, Canada’s sovereignty. The collective aboriginal interest in the lands involved aboriginal interest in land being proven it reflects the reality that the Crown often claim merited the body representing in this control. The trial judge said resulted in a specific fiduciary duty needed to persuade aboriginal peoples, the collective Métis interest coming no and the Court of Appeal declined not being established. The Supreme at times when they still had considerable before the court. The Supreme Court, to decide the point. The Supreme Court held a fiduciary duty to an military capacity and constituted a therefore, granted the MMF standing. Court said that in order to give rise to aboriginal group could not simply be majority of the population in various a fiduciary duty the collectively-held established by language in legislation regions of the province, that their rights The MMF Claim: A interest must be distinctly aboriginal: or treaty. It must be based on historic and interests were better protected by the fact that the Métis are aboriginal use and occupation as an aboriginal reliance on the Crown than fighting Crown-Métis Fiduciary and had an interest in the lands did collective, and neither the evidence against it. The purpose of the doctrine Relationship Exists, But not make their interest a collectively- nor the words of s. 31 established is the reconciliation of pre-existing No Fiduciary Duty held “Aboriginal interest in land.” An that historic use and occupation. aboriginal societies with the assertion of aboriginal interest in land requires a While s. 31 shows an intention to Crown sovereignty. The MMF claimed that Canada had a “communal aboriginal interest in the benefit the Métis children, it does not fiduciary duty to implement ss. 31 and land that is integral to the nature of the demonstrate an undertaking to act in 32 of the Manitoba Act as trustee for the Métis distinctive community and their their best interests above all others. Métis, arguing that this duty arose out relationship to the land.” of the Métis aboriginal interests in the For these reasons, the Supreme Court lands in question or directly from the The key question was whether the held that the federal government promises made in ss. 31 and 32. The Métis—as a collective—held a specific was not under a fiduciary duty in its Supreme Court did not agree with these aboriginal collective interest in the ss. administration of the children’s lands (s. legal arguments. 31 and 32 lands. Since the trial judge’s 31) or the s. 32 lands. findings of fact showed that the Red A fiduciary is required to act in River Métis held their lands individually the best interests of the person (i.e., in a river lot system), they were

Understanding the Supreme Court of Canada’s 5 Unfinished Business in Confederation 6 Decision in the Manitoba Métis Federation Case “The ultimate purpose of the purposes or treaty or statutory grants to The Supreme Court drew analogies To fulfill its duty, Crown servants needed honour of the Crown is the aboriginal peoples. between treaty and constitutional to perform the obligation in a way reconciliation of pre-existing obligations, saying that an intention that pursues the purpose behind the Aboriginal societies with the In the MMF case, the Supreme Court to create obligations and a certain promise. The aboriginal group must assertion of Crown sovereignty.” – recognized another type of situation measure of solemnity should attach not be left with an “empty shell” of a MMF Case, para 66 where the honour of the Crown is to both. Both types of promises are promise. The Court called the duty set implicated; namely, in relation to the made for the overarching purpose of out in s. 31 a “narrow and circumscribed The honour of the Crown imposes a implementation of explicit obligation reconciling aboriginal interests with duty” based on “extraordinary facts”. heavy obligation on the Crown, but it solely to an aboriginal group that is Crown sovereignty. The obligation, The Court noted that breach of the is not at play in every Crown-Aboriginal enshrined in the Constitution. The however, must be explicitly owed Crown’s duty would not be found based interaction. The Supreme Court noted Court recognized that s. 31 invoked this to an aboriginal group; a strong on a single mistake or negligent act in that in previous cases it has recognized type of obligation. It found that s. 32 aboriginal interest in the obligation implementation. However, “a persistent that the honour of the Crown gives rise did not engage this obligation because is not enough. Only a constitutional pattern of errors and indifference that to specific Crown duties, including, (1) it was not exclusively made to the Métis obligation explicitly directed at an substantially frustrates the purposes a fiduciary duty when discretionary as an aboriginal group, since other non- aboriginal group invokes that group’s of a solemn promise may amount to control over a specific Aboriginal interest aboriginal settlers in the Red River were special relationship with the Crown. a betrayal of the Crown’s duty to act is assumed by the Crown, (2) a duty to eligible for s. 32 lands. honourably in fulfilling its promise.” The consult and accommodate when the The Court held that the honour of the honour of the Crown does not guarantee Crown contemplates an action that “The Constitution is not a mere Crown requires the Crown to act in a that the purposes of the promise will be will affect a claimed but yet unproven statute; … It is at the root of the way that accomplishes the intended achieved because events may prevent aboriginal interest, (3) an obligation to honour of the Crown, and an purposes of treaty and statutory grants fulfillment despite the Crown’s diligent act honorably in treaty negotiation and explicit obligation to an Aboriginal to aboriginal peoples. When the issue efforts. But the question before courts implementation, (4) an obligation to act group placed therein engages the is the implementation of a constitutional will be this: “Viewing the Crown’s in a way that accomplishes the intended honour of the Crown at its core.” obligation to an aboriginal people, conduct as a whole in the context of the – MMF Case, para. 70 the honour of the Crown requires that case, did the Crown act with diligence to the Crown take a broad, purposive pursue the fulfillment of the purposes of approach to the interpretation of the the obligation?” promise and act diligently to fulfill it. An honourable interpretation cannot be a “Not every mistake or negligent act legalistic one that severs the words from in implementing a constitutional their purpose. The law assumes that obligation to an Aboriginal the Crown intends to fulfill its solemn people brings dishonour to the promises, including constitutional Crown. … However, a persistent obligations, and requires the Crown pattern of errors and indifference to endeavor to ensure its obligations that substantially frustrates the are fulfilled. The duty applies whether purposes of a solemn promise the obligation arises in a treaty or in may amount to a betrayal of the the Constitution, the latter being the Crown’s duty to act honourably situation with the MMF. Because the in fulfilling its promise.” – MMF Manitoba Act became part of Canada’s Case, para. 82 Constitution in 1871, section 31 engaged this constitutional duty.

Understanding the Supreme Court of Canada’s 7 Unfinished Business in Confederation 8 Decision in the Manitoba Métis Federation Case The Supreme Court held that the River Métis (that were not grounded in four ways: (1) by the inexcusable delay this case showed a “persistent pattern of honour of the Crown was at the heart collectively-held aboriginal lands, but in in distributing the lands; (2) by using inattention [that] frustrates the purpose of this litigation. The MMF argued at their individuals land holdings and their random selection rather than ensuring of the constitutional obligation.” Of all levels of court that the conduct of pre-existence as a distinct community) family members got adjoining parcels; particular note, the Court held that the fact the government in implementing s. 31 with the Crown’s claim to sovereignty. (3) failing to protect the Métis from of a new government coming to power breached the duty that arose from the land speculators; and (4) giving some was no excuse for delays that defeated honour of the Crown. In support of “Section 31, though, is not a Métis children scrip instead of a direct the promise: “[t]he Crown’s obligations the MMF claim, the intervener, Métis treaty. The trial judge correctly land grant. cannot be suspended simply because Nation of Alberta, argued that s. 31 is described s. 31 as a constitutional there is a change in government.” an unfulfilled promise which the honour provision crafted for the purpose Delay of the Crown demanded be fulfilled by of resolving Aboriginal concerns “The prompt and equitable reconciliation through negotiation. The and permitting the creation of the It took over 10 years to make the land implementation of s. 31 was intervener, Métis Nation of Ontario, province of Manitoba.” – MMF allotments to the Métis children and the fundamental to the project argued that s. 31 could not be honoured Case, para. 93. scrip distributions did not occur until of reconciliation … s. 31 was by a process that ultimately defeated 1885 (15 years later). The Supreme designed to give the Métis a The broad purpose of s. 31 was to the purpose of the provision. In general, Court held that this delay substantially head start in the race for land reconcile the Manitoba Métis community these submissions raised the broader defeated the purpose of s. 31: because and a place in the new province. with the sovereignty of the Crown and to issue of whether the government’s the purpose was to give the children a This required that the grants be permit the creation of the province of conduct generally met the requirements “head start” over anticipated immigrants, made while a head start was still Manitoba. This reconciliation was to be of the honour of the Crown. time was plainly of the essence. Minister possible.” – MMF Case, para. 99 accomplished by a concrete measure— Cartier promised the Métis that the the prompt and equitable transfer of 1.4 land would be distributed “as soon as The trial judge found that there was no The Application of the million acres of public lands to the Métis practicable” and in “the most effectual bad faith or misconduct on the part of Honour of the Crown children. It was designed to give the and equitable manner.” The intent of the Crown employees, but the Supreme to the Constitutional Métis children a “head start” in the race the promise was not met. Court said diligence requires more than for land and “a lasting place in the new simply the absence of bad faith. The Promise made to the province” that their parents and grand In fact, the delays were huge and record showed that there was consistent Manitoba Métis parents helped to create. This required recognized by everyone, including, inattention and a consequent lack of the land grants be made while a “head government officials at the time. diligence in implementing s. 31. The Section 31 gave land rights to the Métis start” was still possible. Everyone knew Meanwhile, the Manitoba legislature Court held that the delay in completing children of the Red River Settlement. that a wave of settlement was coming passed a series of acts intended to the s. 31 distribution was inconsistent There is no doubt that this was a promise and Minister Cartier assured the Métis frustrate the purpose of s. 31, and with the behavior demanded by the to the Métis people collectively in that the grants would “be of a nature the settlers poured into the province honour of the Crown. recognition of their distinct community. to meet the wishes of the half-breed and were allowed to take up the lands This constitutional promise engaged the residents” and that the division of land intended for the Métis children. Petitions Sales to Speculators honour of the Crown. The court looked would be done “in the most effectual were sent to Ottawa complaining about at what it called s. 31’s “treaty-like” and equitable manner.” The Supreme the delay and its damaging effects. The The MMF argued that Canada history and character. Like a treaty, s. 31 Court recognized that nothing even Deputy Minister of the Interior called it a breached its duty by failing to protect was adopted with the intention to create remotely like an effectual and equitable “disgraceful delay”. the Métis from land speculators and Crown obligations “of the highest order”. process happened. that Canada should not have permitted Section 31 was conceived during the The Supreme Court held the delay was sales before the land was actually negotiations to create the new province of The MMF claimed that Canada failed inconsistent with the duty imposed by granted to the children or before they Manitoba and with a view to reconciling to fulfill its duties to the Métis people the honour of the Crown to act diligently reached their age of majority. The the aboriginal interests of the Red in relation to the children’s grants in to fulfill the purpose of s. 31. The facts in Supreme Court held that the 10-year

Understanding the Supreme Court of Canada’s 9 Unfinished Business in Confederation 10 Decision in the Manitoba Métis Federation Case It said that as long as the 1.4 million acceptable way to distribute the land holding that the statutes were long since acres was set aside and distributed with consistent with the purpose of s. 31. repealed and could have no future reasonable equity, the scheme of the That said, the Court noted that the delay impact. In short, the Court said they had Manitoba Act was not offended. The in distribution and consequential sales no relevance to determining the MMF’s MMF also argued that the value of scrip prior to patent may have made it more modern-day claim. issued was deficient. The children got difficult for the Métis to trade land and $240 of scrip, based on an estimate that achieve contiguous parcels. Statutes of Limitations the land cost $1.00 per acre. While this may have been the price in 1879, by The Court’s Conclusion on the The Supreme Court rejected Crown the time scrip was issued in 1885 land Honour of the Crown arguments that the Métis claim for was $2 or $2.50 per acre. Therefore, declaratory relief was barred by the children who received scrip got a The Supreme Court concluded that Manitoba’s limitations legislation. While grant equivalent to 96-120 acres, which the s. 31 obligation made to the Métis limitations legislation can bar personal was significantly less than the 240 acres was part of Canada’s Constitution and remedies flowing from the striking down delay in implementation increased provided to the children who got land so engaged the honour of the Crown, of unconstitutional legislation, the Court sales to speculators. As the years went grants. The delay thus resulted in the requiring the federal government to held that such legislation cannot prevent on and the land was not forthcoming, 993 children receiving less land than interpret s. 31 purposively and diligently the courts from issuing declarations on a cash offer from a speculator would the others. The Court said this was a pursue fulfillment of the purposes of its the constitutionality of legislation or the appear attractive. Also, protecting “departure from the s. 31 promise that obligation. According to the Supreme Crown’s conduct. Court, “[t]his was not done. The Métis timber or other resources on lands they the land would be divided in a roughly The Supreme Court held that while might someday receive became more equal fashion,” and concluded that were promised implementation of the s. 31 land grants in ‘the most effectual Manitoba’s limitations legislation would and more difficult and those lands the delay in issuing scrip was a further apply to aboriginal claims for breach became less valuable. The Manitoba demonstration of the “persistent pattern and equitable manner’. Instead, the implementation was ineffectual and of fiduciary duty with respect to the legislature passed acts that aided this of inattention inconsistent with the administration of aboriginal property, land speculation. The facts showed honour of the Crown.” inequitable.” The Court concluded that “[a] government sincerely intent what was at issue in this case was a that those who sold after receiving the declaration that the Crown did not Random Allotment on fulfilling the duty that its honour land received about twice that received act honourably in implementing the by those who sold before allotment. demanded could and should have done The MMF claimed that the s. 31 lands better.” constitutional obligation in s. 31 of The Supreme Court held that while the Manitoba Act. The Court held that the grants could be sold, the delay should have been allotted so that the children’s lots were contiguous to or “[l]imitations acts cannot bar claims of encouraged speculation. The MMF Claim: Other in the vicinity of their parents’ lots. At this nature.” a minimum, the sibling’s lands should Legal and Constitutional Scrip Importantly, the Court recognized that have been clustered together because Issues “[t]he ongoing rift in the national fabric this was necessary to facilitate actual Because the government miscalculated that s. 31 was adopted to cure remains settlement rather than sales. This The Constitutionality of Manitoba’s the number of eligible children, 993 unremedied. The unfinished business was necessary to establish a Métis Implementation Statutes were left out of the allotment and in the of reconciliation of the Métis people homeland. The trial judge found that end they got scrip redeemable for land The MMF sought a declaration that five with Canadian sovereignty is a matter of the grant was intended to benefit the instead of a land grant. Scrip could be statutes enacted by Manitoba between national and constitutional import.” As individual children, not to establish a sold for cash, but it was worth about 1877 and 1885, regulating the means such, the courts “cannot be barred by Métis land base. The Supreme Court half its face value. The MMF argued by which sales of s. 31 lands could mere statutes from issuing a declaration accepted this and held that the random that the delivery of scrip breached s. take place, were unconstitutional. The on a fundamental constitutional selection within each parish was an 31. The Supreme Court did not agree. Supreme Court rejected this argument, matter.” The Court concluded that

Understanding the Supreme Court of Canada’s 11 Unfinished Business in Confederation 12 Decision in the Manitoba Métis Federation Case “[t]he principle of reconciliation demands “[t]he answer is no.” Of particular with future negotiations to achieve a is not a final legal remedy in the usual that such declarations not be barred.” note, the Court went on to say, “[i]t is modern day land claims agreement for sense. Rather, it is a process flowing difficult to see how a court, in its role the Manitoba Métis community. from rights guaranteed by s. 35(1) of Laches as guardian of the Constitution, could the Constitution Act, 1982.” apply an equitable doctrine to defeat a “What is at issue is a Laches is an equitable legal doctrine claim for a declaration that a provision of constitutional grievance going It is an inescapable conclusion that that requires a claimant to pursue his the Constitution has not been fulfilled as back almost a century and the legal framework set out by the claim without delay. Unlike statutes of required by the honour of the Crown. … a half. So long as the issue Supreme Court in relation to s. 35 limitations, laches involves no fixed The Constitution is the supreme law of remains outstanding, the goal of and reconciliation, combined with the time period; rather, the circumstances our country, and it demands that courts reconciliation and constitutional Supreme Court’s recognition of the of each specific case determines the be empowered to protect its substance harmony, recognized in s. 35 of outstanding constitutional claim of appropriateness of any delay. Generally, and uphold its promises.” the Charter and underlying s. the Manitoba Métis, demands future there are two considerations involved in 31 of the Manitoba Act, remains negotiations between the MMF and determining when a delay amounts to Conclusion: Dealing with unachieved. The ongoing rift the federal government in order to laches: (1) the claimant’s acquiescence in the national fabric that s. 31 address this “unfinished business” or acceptance of the delay; and (2) the “Unfinished Business” was adopted to cure remains of confederation and to advance whether the defendant (i.e., the Crown of Confederation unremedied. The unfinished reconciliation. Only time will tell “when” in this case) changed its position in business of reconciliation of the and “how” these required negotiations reliance on the claimant’s (i.e., the Ultimately, the Supreme Court allowed Métis people with Canadian will ultimately take place. However, Manitoba Métis in this case) acceptance the MMF’s appeal in part and issued sovereignty is a matter of national regardless of any future delays, excuses of what happened. the following declaration: “[t]hat the and constitutional import.” – or avoidance tactics that may be used federal Crown failed to implement the MMF Case, para. 140 by the federal government, the Supreme On the first part of the test for land grant provision set out in s. 31 of Court’s declaration and conclusions with laches, the Supreme Court held that the Manitoba Act, 1870 in accordance In previously decided cases, the respect to the need for this outstanding acceptance depends on knowledge, with the honour of the Crown.” Supreme Court has also recognized constitutional grievance to be resolved capacity and freedom, which, in the that “[t]he fundamental objective of in order to bring constitutional harmony The Court recognized that as long as context of historical injustices suffered the modern law of aboriginal and treaty to Canada will remain. In the words of the constitutional grievance relating by Métis, the power imbalance following rights is the reconciliation of aboriginal MMF President David Chartrand, the to the failed implementation of s. Crown sovereignty, and the negative peoples and non-aboriginal peoples and Manitoba Métis Community is “waiting 31 remains outstanding, the goal of consequences following delays in their respective claims, interests and for its partner in confederation to come reconciliation with the Manitoba Métis, allocating grants, meant that the delay ambitions” and that “[r]econciliation back to the negotiating table.” itself could not be interpreted “as some which is mandated by s. 35 of the clear act by the [Métis] which amounts Constitution Act, 1982 and underlies to acquiescence or waiver.” The Court the purpose of s. 31 of the Manitoba also held that “in this rapidly evolving Act, remains unachieved. Notably, the area of the law, it is rather unrealistic Court recognized that the purpose of the to suggest that the Métis sat on their MMF’s claim was to secure a declaration rights before the courts were prepared that would assist in securing future to recognize those rights.” negotiations with the federal government in order to advance the “constitutional The second part of the test was whether goal of reconciliation that is reflected in there was any change in the Crown’s s. 35 of the Constitution.” For over 30 position as a result of the delay. The years, the MMF has been consistent Supreme Court dismissed this outright: that the goal of the litigation is to assist

Understanding the Supreme Court of Canada’s 13 Unfinished Business in Confederation 14 Decision in the Manitoba Métis Federation Case