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• Manitoba Metis Federation (MMF) – Part 2

o MMF-003 Written Submissions of the MMF_Part1

MANITOBA CLEAN ENVIRONMENT COMMISSION

IN THE MATTER OF section 6(5)(b) of the Environment Act, C.C.S.M. c. E125;

AND IN THE MATTER OF a review by the Clean Environment Commission (“CEC”) of the Environmental Impact Statement for the Manitoba Hydro Manitoba-Minnesota Transmission Project (the “Project”) pursuant to the Terms of Reference of the Minister of Sustainable Development dated December 31, 2016, and updated on February 15, 2017.

WRITTEN SUBMISSIONS OF THE MANITOBA METIS FEDERATION (“MMF”)

Dated: May 23, 2017

Manitoba Metis Federation PAPE SALTER TEILLET LLP 300-150 Henry Avenue 546 Euclid Avenue Winnipeg, Manitoba, R3B 0J7 Toronto, ON M6G 2T2

David Chartrand, President Jason Madden Tel.: 204-586-8474 Tel.: 416-916-3853 Fax: 204-947-1816 Fax: 416-916-3726 [email protected]

Zachary Davis Tel.: 416-238-7987 Fax: 416-916-3726 [email protected]

Megan Strachan Tel.: 647-827-1697 Fax: 416-916-3726 [email protected]

Written Submissions of the Manitoba Metis Federation

Table of Contents

Tab Item

1. Alberta (Aboriginal Affairs and Northern Development) v Cunningham, [2011] 2 SCR 670, [2011] SCJ No 37

2. Manitoba Metis Federation Inc v Canada (Attorney General), [2013] 1 SCR 623, [2013] SCJ No 14

3. Arthur J. Ray, Métis Economic Communities and Settlements in the 19th Century (University of British Columbia, August 2005)

4. Gwynneth C.D. Jones, The Métis of Southern Manitoba in the Nineteenth Century: A Historical Report, prepared for the Manitoba Métis Federation (1 September 2005)

5. R v Goodon, 2008 MBPC 59, [2009] MJ No 3

6. Map of “Fur Trade Routes and Trading Posts, Pre 1870

7. Copy of the Laws and Regulations Established for the Colony of St. Laurent on the Saskatchwan (1873) (the “Laws of the Prairies”)

8. Manitoba Metis Federation, Metis Laws of the Harvest, “Guide to Metis Hunting, Fishing, Trapping and Gathering” (revised 3d ed)

9. Manitoba Metis Federation, Constitution (16 November 2014)

10. Manitoba Metis Federation, “Governance Structure” (2012)

11. Manitoba Metis Federation, Resolution No. 8

12. Framework Agreement for Advancing Reconciliation, between Manitoba Metis Federation and the Her Majesty the Queen in Right of Canada (15 November 2016)

13. Canada-Métis Nation Accord between Her Majesty the Queen in Right of Canada and the Metis Nation (13 April 2017)

14. Manitoba Metis Federation, “Metis Locals in the Vicinity of the Project”

15. Thomas Isaac, A Matter of National and Constitutional Import: Report of the Minister’s Special Representative on Reconciliation with Métis: Section 35 Métis Rights and the Manitoba Metis Federation Decision (14 June 2016)

16. R v Powley, [2003] 2 SCR 207, [2003] SCJ No 43

Written Submissions of the Manitoba Metis Federation

Table of Contents

Tab Item

17. Manitoba Government-Manitoba Metis Federation Points of Agreement on Metis Harvesting in Ontario (29 September 2012)

18. Government of Manitoba, Map of Recognized Areas for Metis Natural Resource Harvesting

19. Government of Manitoba, “Domestic timber harvest for Aboriginal/Treaty rights Holders” (4 October 2010)

20. Manitoba Act, 1870, 33 Victoria, c 3, section 31

21. Map of 1870 Provincial Boundary

22. Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, Article 26

23. Land Claims Agreement between the Inuit of Labrador and Her Majesty the Queen in Right of Canada, Chapters 6 and 7

24. Land Claims and Self-Government Agreement among the Tlicho and the Government of the Northwest Territories and the Government of Canada, Chapter 23

25. Comprehensive Land Claim Agreement between Her Majesty the Queen in Right of Canada and the Gwich’in as Represented by the Gwich’in Tribal Council, Chapter 9

26. Final Agreement between the Maa-Nulth First Nations, Her Majesty the Queen in Right of Canada, and the Government of British Columbia, Chapter 17

27. Comprehensive Land Claim Agreement between the Sahtu Dene and Metis and Her Majesty the Queen in Right of Canada, Chapter 10

28. Land Claims and Self-Government Agreement among the Tlicho and the Government of the Northwest Territories and the Government of Canada, Chapter 26

29. Comprehensive Land Claim Agreement between the Sahtu Dene and Metis and Her Majesty the Queen in Right of Canada, Chapter 12

30. Comprehensive Land Claim Agreement between Her Majesty the Queen in Right of Canada and the Gwich’in as Represented by the Gwich’in Tribal Council, Chapter 10

31. Province of British Columbia, “First Nations Clean Energy Business Fund Revenue Sharing Agreements” (accessed on 23 May 2017)

Written Submissions of the Manitoba Metis Federation

Table of Contents

Tab Item

32. Revenue Sharing Agreement between Her Majesty in Right of the Province of British Columbia and the Kwantlen First Nation (29 March 2017)

33. Province of British Columbia, “Forest Consultation and Revenue Sharing Agreements” (accessed on 23 May 2017)

34. Forest & Range Consultation and Revenue Sharing Agreement between Adams Lake Indian Band and Her Majesty the Queen in Right of British Columbia (23 April 2012)

35. Province of British Columbia, “Natural Gas Pipeline Benefit Agreements” (accessed on 23 May 2017)

36. Prince Rupert Gas Transmission Project Natural Gas Pipeline Benefits Agreement between Her Majesty in Right of the Province of British Columbia and Gitanyow Nation (27 December 2014)

37. Government of Ontario, “Ontario’s Long-Term Energy Plan” (December 2013)

38. Government of Ontario, “Energy Partnerships Program (EPP)” (27 June 2016)

39. IESO, “Energy Partnership Program Partnership Rules” (13 June 2016)

40. Letter from the Minister of Energy to Ontario Power Authority, dated August 25, 2011

41. Government of Ontario, “History of the Energy Support Programs”

42. The Path to Reconciliation Act, SM 2016, c 5

43. Contribution Agreement for Manitoba Metis Federation Engagement on the Manitoba- Minnesota Transmission Project between Manitoba Metis Federation and the Manitoba Hydro-Electric Board (12 January 2016) (redacted)

iii

MANITOBA CLEAN ENVIRONMENT COMMISSION

IN THE MATTER OF section 6(5)(b) of the Environment Act, C.C.S.M. c. E125;

WRITTEN SUBMISSIONS OF THE MANITOBA METIS FEDERATION (“MMF”)

The Manitoba Métis: Canada’s Partner in Confederation

1. The Manitoba Metis Community is a part of a larger Aboriginal people―the Métis Nation―that emerged from the descendants of unions between European traders and explorers and Aboriginal women in what was historically known as the ‘Northwest.’ While not defined with precision, the ‘Northwest’ was described from a geographic perspective centered in Montreal and what was then known as Upper Canada (i.e., the Prairies were ‘north’ and ‘west’ of those central Canada locations). This history was acknowledged by the Supreme Court of Canada in Cunningham v. Alberta, 2011 SCC 37, a copy of which is attached to these submissions at Tab 1:

[5] The Métis were originally the descendants of eighteenth-century unions between European men—explorers, fur traders and pioneers—and Indian women, mainly on the Canadian plains, which now form part of Manitoba, Saskatchewan and Alberta. Within a few generations the descendants of these unions developed a culture distinct from their European and Indian forebears. In early times, the Métis were mostly nomadic. Later, they established permanent settlements centered on hunting, trading and agriculture. The descendants of Francophone families developed their own Métis language derived from French. The descendants of Anglophone families spoke English. In modern times the two groups are known collectively as Métis.

2. In Manitoba Metis Federation v. Canada 2013 SCC 14 (the “MMF Case”), a copy of which is attached to these submissions at Tab 2, the Supreme Court of Canada recognized that the Manitoba Métis were one of the “[I]ndigenous peoples” who were

1 living in the “western territories” as the new country of Canada began its westward expansion following Confederation in 1867 (para. 2).

3. Our people emerged with our own nationhood, identity, culture, traditions and language (Michif) in the Northwest in the early 1800s. The story of the Battle of Seven Oaks in 1816 is our origin story and was the first of many self-government and rights assertions by our people in our Homeland, including the Sayer trial, the Battle of Grand Couteau, the Red River Resistance, land related petitions, the Battle of Batoche, among many others. The history of the Métis Nation, and in particular of the Manitoba Metis Community, is set out in greater detail in the report of Dr. Arthur Ray entitled “Métis Economic Communities and Settlements in the 19th Century”, a copy of which is attached to these submissions at Tab 3, and the report of Gwynneth Jones entitled “The Métis of Southern Manitoba in the Nineteenth Century: A Historical Report,” a copy of which is attached to these submissions at Tab 4. Both of these reports were filed as evidence and relied on by the court in R. v. Goodon, 2008 MBPC 59, a copy of which is attached to these submissions at Tab 5.

4. Similar to Indian peoples (i.e., First Nations), our ancestors lived, used and relied on our Homeland and were in possession of their lands. Our people had our own government, laws and traditions that were rooted in our lands and nationhood. This Métis perspective was reflected in Louis Riel’s writings in 1885:

When the Government of Canada presented itself at our doors it found us at peace. It found that the Metis people of the North-West could not only live well without it ... but that it had a government of its own, free, peaceful, well- functioning, contributing to the work of civilization in a way that the Company from England could never have done without thousands of soldiers. It was a government with an organized constitution whose junction was more legitimate and worthy or respect, because it was exercised over a country that belonged to it.

5. In the MMF Case, the Supreme Court of Canada also recognized our well-established existence as a distinct Aboriginal community in the Red River Valley, which included the Red River Settlement amongst other proximate locations:

[23] In 1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centered on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg. The Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population [approximately 10,000 Métis], and held leadership positions in business, church and government.

6. While a significant Métis population developed at the Red River Settlement by the early 1800s, the Manitoba Metis Community also included other settlements and relied on various locations along strategic fur trade routes throughout what is known as present day Manitoba. During the early part of the 19th century, these included various posts of

2 varying size and scale spanning the Northwest Company and Hudson Bay Company collection and distribution networks, as appears from a copy of a map entitled “The Fur Trade Network: Routes and Posts Prior to 1870,” which is attached to these submissions at Tab 6.

7. As Canada attempted to expand westward from Ontario, the Crown had to deal with us— as a distinct Indigenous people—with rights and interests in the Red River Valley and beyond. For example, flowing the well-known events of 1869/70 at the Red River Settlement, we ultimately became one of the founding peoples of this country: Canada’s negotiating partner in bringing Manitoba into Confederation. This led to what we view as our “treaty” with Canada, which is embedded in parts of the Manitoba Act, 1870 Again, the writings of Louis Riel in 1885 are insightful to understanding the Métis perspective:

There were two societies who treated together. One was small, but in its smallness had its rights. The other was great, but in it greatness had no greater rights than the rights of the small…

8. Unfortunately, the constitutional compact made between our people and Canada was ultimately broken and defeated by the federal government through delays in fulfilling the purpose of the promise embedded within s. 31 of the Manitoba Act, 1870. This broken promise—flowing from a breach of the honour of the Crown—was at issue in the MMF Case, wherein the highest court of the land validated the Manitoba Metis Community’s outstanding claim against the federal Crown and called for reconciliation in order to address this long-standing rift in the constitutional fabric of our country (MMF Case, para. 140).

The Manitoba Métis: Our Customs, Practices and Laws in Relation to Our Lands

9. As noted above, prior to Canada’s arrival on our doorstep, our people had developed our own self-government and laws in relation to our Homeland, including our provisional government as well as the “Laws of the Prairies,” which is attached to these submissions at Tab 7.

10. Further, for successive generations, our people played a pivotal role in provisioning the fur trading posts that made up the Northwest Company and Hudson Bay Company collection and distribution systems by supplying agricultural produce, buffalo meat as pemmican and dry meat and, of course, furs. Though unique Indigenous way of life was closely tied to hunting, we maintained a diversified economy that relied on the bounty of our Homeland in order to maintain our community and distinct way of life.

11. For example, in addition to supplying meat in support of the fur trade, Métis also took up small-scale farming, harvesting wild rice, berries, salt, maple sugar and seneca root. The Hudson’s Bay and Northwest Companies both benefited from the contribution of produce. This mixed economic strategy contributed to our distinct Métis culture, which continues today in our Homeland.

3 12. Specifically, the buffalo hunt, as a part of the Métis seasonal round described above, became essential to Métis way of life and the economy of the Manitoba Metis Community. In particular, pemmican made from powdered buffalo meat, fat and berries, became the ideal non-perishable food item to carry on long voyages. This was a key staple that fueled the fur trade network. Notably, the Supreme Court of Canada has acknowledged that “[t]he buffalo robe trade was the Métis’ primary livelihood and one of the backbones of their economy” (MMF Case, para. 193).

13. As a part of our self-government as a people, the buffalo hunt relied on the organization of hundreds of men, women and children, not to mention carts and horses to transport the meat for hundreds of miles. During a hunt, every family member played a role. Butchering, dry meat preparation and pemmican making, as well as hide preparation and tanning, were the responsibility of women and children. Men hunted. In addition to feeding traders, families and settlers, buffalo was used for clothing, moccasins, tents and more.

14. In order to manage this aspect of the Métis seasonal round and economy, the Manitoba Metis Community developed unique laws and governance institutions. Métis buffalo hunt rules―also known as the Métis Laws of the Hunt―were developed, laid out, strictly adhered to and enforced. Notably, these Métis created rules and laws in relation to our use of our Homeland and harvest continue today in the form of the MMF Laws of the Hunt, which are attached to these submissions at Tab 8.

The Manitoba Metis Federation

The MMF’s Representative Role on behalf of the Manitoba Métis Community

15. While the MMF was initially formed in 1967, its origins lie in the 18th century with the birth of the Manitoba Metis Community and in the legal and political structures that developed with it as detailed and explained above.

16. In contemporary times, the MMF has evolved as the official democratic and self- governing representative for the Métis Nation’s Manitoba Metis Community. It is mandated to promote the political, social, cultural and economic interests and rights of the Métis in Manitoba.

17. The objectives of the MMF, as set out in the MMF Constitution, a copy of which is attached to these submissions at Tab 9, are as follows:

(a) To promote and instill pride in the history and culture of the Métis people.

(b) To educate members with respect to their legal, political, social and other rights.

(c) To promote the participation and representation of the Métis people in key political and economic bodies and organizations.

4 (d) To promote the political, legal, social and economic interests and rights of its members.

(e) To provide responsible and accountable governance on behalf of the Manitoba Métis community using the constitutional authorities delegated by its members.

18. In fulfillment of these objectives, the MMF maintains a centralized registry of its members (i.e., citizens), which is the only Métis registration system in Manitoba financially support by the federal government. To date, the MMF has over 52,000 registered citizens with thousands of additional citizens registering each year.

19. Based on the Métis Nation’s inherent right of self-government and self-determination as well as the democratic mandate it receives from its citizens, the MMF represents the Manitoba Metis Community through democratically elected governance structures at the local, regional and provincial levels and is authorized to deal with the collective rights, interests and claims of the Manitoba Metis Community.

20. In fulfillment of its representative role on behalf of the Manitoba Metis Community, the MMF has developed a unique province-wide governance structure. Central to this structure is the MMF President, as the Chief Executive Officer of the MMF as well as the leader and spokesperson for the Manitoba Metis Community. The MMF President is elected in a province-wide election every four years and is responsible for overseeing the MMF’s day-to-day operations. In addition, the MMF has a Board of Directors (i.e., the MMF Cabinet) that leads, manages and guides the policies, objectives and strategic direction of the MMF and its subsidiaries. All 23 members of the Board of Directors are democratically elected by the MMF’s citizenship.

21. The MMF is also organized into seven regional associations, or “MMF Regions,” throughout the province. Each Region is administered by a vice-president and two executive officers, all of whom sit on the MMF’s Board of Directors. These independent officers deliver programs and services to their specific geographic area. The seven Regions of the MMF are depicted in the map attached to these submissions at Tab 10.

22. Within each Region are various settlements, villages or area-specific “Locals,” which are administered by a chairperson, a vice-chairperson and a secretary-treasurer. A Local must have a minimum of nine members and meet at least four times a year. Every member of the MMF belongs to a Local. The purpose of a Local is for citizens to have local-based representation though local governance and communication channels and to exchange information upward to higher levels of MMF governance concerning local issues, values and interests. This structure allows the MMF to centralize and use resources efficiently, while at the same time remaining in tune with and responsive to regional and local needs and concerns while representing the Manitoba Metis Community as a whole.

23. In keeping with the authorizations from citizens set out in the MMF Constitution and the respective roles of the provincial, regional, and local component parts of the MMF, the

5 MMF Annual General Assembly has authorized the MMF Home Office as its authorized representative for the purposes of Crown consultation and accommodation. This is spelled out explicitly in Resolution 8, a copy of which is attached to these submissions at Tab 11. More specifically, the MMF Annual General Assembly unanimously adopted Resolution 8 in 2007, which reads in part as follows:

…this assembly continue[s] to give the direction to the Provincial Home Office to take the lead and be the main contact on all consultations affecting the Metis community and to work closely with the Regions and Locals to ensure governments and industry abide by environmental and constitutional obligations to the Metis…

The Recognition of the MMF’s Representative Role by the Courts and Other Governments

24. The MMF’s representativeness flows from the Métis Nation’s inherent right of self- government, its democratic institutions, and its legitimacy in the eyes of its own people. This representativeness has been recognized by the Supreme Court of Canada, in the MMF Case, where it acknowledged and granted the MMF standing as the representative of the collective interest of the Manitoba Metis Community in relation to the outstanding claim against the Crown flowing from s. 31 of the Manitoba Act, 1870 (para. 44). Further, the Provincial Court of Manitoba, in R. v. Goodon, recognized that the MMF is the governing body of Métis people in Manitoba (para. 52).

25. The MMF is also recognized by other orders of government as the representative body of the Manitoba Metis Community. For example, it receives limited annual funding from the federal government and the Manitoba government to represent the Manitoba Métis Community. It has also negotiated many agreements and arrangements on behalf of the Manitoba Metis Community with other levels of government. The most recent of these being a MMF-Canada Framework Agreement for Advancing Reconciliation (“MMF- Canada Framework Agreement”) executed on November 15, 2016, a copy of which is attached to these submissions at Tab 12, which states:

Canada is committed to working, on a nation-to-nation, government-to- government basis, with the Métis Nation, through bilateral negotiations with the MMF, in order to advance reconciliation and renew the relationship through cooperation, respect for Métis rights, and ending the status quo.

26. In addition, the MMF and its related institutions administer over $50 million in federal and provincial funding annually for the delivery of programs and services to the Manitoba Metis Community. These programs and services relate to Métis employment, training, education, housing, economic development, and health, amongst other sectors. As well, the MMF is responsible for the delivery of Métis child and family services in Manitoba under The Child and Family Services Authorities Act, CCSM c C90.

6 27. On April 13, 2017, the Canada-Métis Nation Accord was signed. This Accord recognizes that the Métis Nation is represented by the Métis National Council and its five Governing Members: the MMF, the Métis Nation of Ontario, the Metis Nation of Alberta, the Saskatchewan Metis Nation, and the Metis Nation of British Columbia. It explicitly acknowledges that the Governing Members are “mandated and authorized to represent the citizens of the Métis Nation, including dealing with collectively held Métis rights, interests and outstanding claims against the Crown.” The Accord is attached to these submissions as Tab 13.

Understanding Métis Rights, Interests and Claims in Relation to the Project

28. The Project is proposed within the MMF’s Southeast Region. As appears from the map attached to these submissions at Tab 14, there are 15 MMF Locals in the vicinity of the Project: St. Marks; St. Eustache; Stonewall; Selkirk; St. Adolphe; Lorette; Ste. Rita; Richer; La Broquerie; Marchand; St. Malo; Woodridge; St. Labre; Vassar; and, South Junction. In addition, Métis citizens who may now live in other parts of Manitoba ancestrally connect and maintain connections to the Project’s proposed area—as the heart of the Manitoba Métis Community’s Homeland.

29. The Manitoba Metis Community recognizes its has a shared traditional territory with First Nations throughout much of the province. First Nations are our family, relations, neighbours and friends. In Manitoba, however, most First Nations in the province have had their pre-existing Aboriginal rights exchanged or modified based on their treaties as well as the Natural Resources Transfer Agreement, 1930.

30. In contrast, our constitutionally-protected rights in Manitoba—as Métis—have their roots in the pre-existing practices, customs and traditions of our distinctive culture and, as such, are constitutionally protected by s. 35 of the Constitution Act, 1982 as Aboriginal rights. While we consider s. 31 and the Manitoba Act, 1870 as a part of our treaty relationship with the Crown, these provisions did not have the same legal effect on our pre-existing Métis rights as First Nation treaties and the Natural Resources Transfer Agreement, 1930 did on other Indigenous peoples.

31. It is important to note that Métis rights are not derivative of the rights of First Nations, nor are they subordinate to First Nations’ rights. The s. 35 rights of the Métis are of equal standing and have the same constitutional protection as the rights of other Aboriginal peoples. The recent independent report of the Ministerial Special Representative of Métis Section 35 Rights and Reconciliation provides some helpful context and analysis on understanding the nature and scope of Métis rights. A copy of this report is attached to these submissions at Tab 15.

32. In addition, as the Supreme Court explained in Cunningham v. Alberta, the recognition of our collective rights—as Métis—has often been ignored or denied by governments. In

7 Cunningham, the Supreme Court acknowledged that s. 35 of the Constitution Act, 1982 was designed to reverse that trend:

[13] The landscape shifted dramatically in 1982, with the passage of the Constitution Act, 1982. In the period leading up to the amendment of the Constitution, Indian, Inuit and Métis groups fought for constitutional recognition of their status and rights. Section 35 of the Constitution Act, 1982 entrenched existing Aboriginal and treaty rights and recognized three Aboriginal groups - Indians, Inuit, and Métis. For the first time, the Métis were acknowledged as a distinct rights-holding group. …

33. Unfortunately, even after the inclusion of Métis in s. 35, governments continued to deny the existence of Métis rights. Finally, in 2003, the Supreme Court of Canada, in R. v. Powley, [2003] 2 SCR 207, had its first opportunity to consider the nature and scope of Métis right protected by s. 35. The Court held the following:

[13] The inclusion of the Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing their survival as distinctive communities. The purpose and the promise of s. 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture. …

[17] The inclusion of the Métis in s. 35 represents Canada's commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other Aboriginal communities.

34. In the Powley decision, a copy of which is attached to these submissions at Tab 16, the Supreme Court also recognized the following:

(a) Métis are a distinct Aboriginal people whose rights flow from their distinct identity—not those of their Indian forbearers;

(b) Métis rights are collectively held by Métis communities/collectives—not individuals;

(d) Similar to other Aboriginal peoples, Métis rights flow from their historic and special relation to the land;

(e) Métis rights-holders must: (1) self-identify as Métis, (2) be ancestrally connected to the historic rights-bearing community, and (3) be accepted by the contemporary Métis community that is the continuation of historic community.

8 Established Manitoba Métis Harvesting Rights

35. Based on Powley, governments were supposed to negotiate with Métis in order to recognize Métis rights, similar to what has been done with First Nations and Inuit peoples. This was not the case in Manitoba. We had to turn to the courts for justice. In 2009, in R. v. Goodon, the Manitoba courts affirmed what we had always known:

[46] The Metis community of Western Canada has its own distinctive identity. As the Metis of this region were a creature of the fur trade and as they were compelled to be mobile in order to maintain their collective livelihood, the Metis "community" was more extensive than, for instance, the Metis community described at Sault Ste. Marie in Powley. The Metis created a large inter-related community that included numerous settlements located in present-day southwestern Manitoba, into Saskatchewan and including the northern Midwest United States. …

[52] The Metis community today in Manitoba is a well organized and vibrant community. Evidence was presented that the governing body of Metis people in Manitoba, the Manitoba Metis Federation, has a membership of approximately 40,000, most of which reside in southwestern Manitoba.

36. Based on the Goodon case, it is recognized that the Manitoba Métis Community has harvesting rights (i.e., hunting, fishing, gathering of plants, medicines, berries, etc.), including the use of timber for domestic purposes. More specifically, this case recognizes the Manitoba Métis Community’s harvesting rights in relation to the area where the Project is proposed.

37. In addition, the MMF, as the representative of the Manitoba Métis Community, asserts the right to use, control and access Métis cultural, heritage sites throughout our territory. These rights are grounded on our existence as an Aboriginal people in this territory prior to effective control, our special relationship to the land, the continuation of our historic practices and traditions in this territory over the generations as well as our pre-existing Métis laws. Accordingly, these rights are protected as “aboriginal rights” within the meaning of s. 35 of the Constitution Act, 1982.

Recognized Manitoba Métis Harvesting Rights

38. Following Goodon, the Crown, as represented by the Manitoba government, recognized some aspects of the Manitoba Métis Community’s rights through a negotiated agreement, the MMF-Manitoba Government Points of Agreement on Métis Harvesting, a copy of which is attached to these submissions at Tab 17.

39. In particular, this Agreement recognizes Métis rights to “hunting, trapping, fishing and gathering for food and domestic use, including for social and ceremonial purposes and for greater certainty, the ability to harvest timber for domestic purposes” throughout the area as shown on the Map of Recognized Métis Natural Resource Harvesting Areas attached

9 to these submissions at Tab 18. The Project falls entirely inside the Métis Recognized Harvesting Area

40. Manitoba Conservation’s policy regarding Domestic Timber Harvest for Aboriginal/Treaty Rights Holders, a copy of which is attached to these submissions at Tab 19, also recognizes some aspects of the Manitoba Métis’ rights in relation to timber harvesting.

The MMF Laws of the Harvest

41. As noted above, the Manitoba Metis Community continues to govern and regulate its own hunting activity. Today, this is done using the Métis Laws of the Harvest, which are developed and published by the MMF, a copy of the current edition of which is attached to these submissions at Tab 8.

42. The MMF-Manitoba Government Points of Agreement on Métis Harvesting recognizes the Métis Laws of the Harvest, providing that the Points of Agreement applies to Métis Rights-Holders as those who hold valid MMF harvesters issued under the Métis Laws of the Harvest (para. 3).

43. The Métis Laws of the Harvest also have management tag requirements for designated big game animals and bag limits for the harvesting of certain species. The management tag requirements and bag limits were instituted after thorough consultation with the Manitoba Metis Community about the needs of Métis harvesters.

Asserted Manitoba Métis Community Commercial Rights

44. Beyond those rights already established through litigation and recognized by agreements, the Manitoba Metis Community claims commercial and trade related rights in the area of Manitoba through which the Project passes. These are strong, well-founded assertions, and it is incumbent on the Crown to take them seriously.

45. The Manitoba Metis Community has its roots in the western fur trade. The Métis in Manitoba are descendants of early unions between Aboriginal women and European traders. As a distinct Métis culture developed, the Métis took up trade as a key aspect of their way of life. Many Métis became independent traders, acting as middlemen between First Nations and Europeans. Others ensured their subsistence and prosperity by trading resources they themselves hunted and gathered. As indicated in the Goodon decision (para. 69(f)), by the mid 19th century, the Métis in Manitoba had developed the collective feeling that “the soil, the trade and the Government of the country [were] their birth rights.”

46. Trade is and always has been integral to the distinctive culture of the Manitoba Metis Community. Today, the Manitoba Métis have an Aboriginal, constitutionally protected right to continue this trading tradition in modern ways to ensure that their distinct

10 community will not only survive but also flourish. As a result, the Manitoba Métis are entitled to a fair share of the wealth generated by the resources in our Homeland.

47. As noted above, unlike First Nations in Manitoba, whose historic practices, customs and traditions—including their commercial rights—have been addressed in their treaty relationships with the Crown and the Natural Resources Transfer Agreement, 1930, the Manitoba Metis Community’s pre-existing customs, practices and traditions are not tempered by the “taking up” clauses or modified by the Natural Resources Transfer Agreement, 1930.

48. All of the rights described above, both established and asserted, are grounded in the Manitoba Metis Community’s distinct existence as an Aboriginal people in this territory—the Métis Homeland—prior to effective control and continuing over generations to the present day. Based on this, these rights are protected as Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982.

The Manitoba Métis Land Claim: Section 31 of the Manitoba Act

49. In addition to the Manitoba Metis Community’s Aboriginal rights, which are grounded on our recognized peoplehood and pre-existence in Manitoba, the MMF has an outstanding legal claim within what was the ‘old postage stamp province’ relating to the 1.4 million acres of land promised to the children of the Métis living in the Red River Valley, as enshrined in s. 31 of the Manitoba Act, 1870, which is attached to these submissions at Tab 20. A map showing the ‘old postage stamp province’ is attached to these submissions at Tab 21.

50. This chapter in our history is succinctly summarized in the Ministerial Special Representative Report by Mr. Thomas Isaac, a copy of which is attached to these submissions at Tab 15:

A key and central event in Métis and Canadian history was the Red River Resistance of 1869-70 resulting from Métis resistance to the fur trade policies of the Hudson’s Bay Company and the land settlement policies of Canada. Together, these policies were seen as a threat to the Métis and their way of life. Following the Red River Resistance, the Métis, led by Louis Riel, participated in the negotiation of the Manitoba Act, 1870, which brought Manitoba into Confederation as a province of Canada (p. 8).

51. Section 31 of the Manitoba Act, 1870 was a constitutional compact negotiated between the Manitoba Métis Community and the Dominion Government in an act of nation building. In the MMF Case, the Supreme Court of Canada acknowledged that the land promised in s. 31 was meant to secure a “lasting place in the new province [of Manitoba]” (para. 5) for future generations of the Métis people.

11 52. The Métis’ “lasting place” in Manitoba was to have been achieved by providing them a “head start” in securing lands in the heart of the ‘old postage stamp province.’ Instead, the federal Crown was not diligent in its implementation of s. 31, which effectively defeated the purpose of the constitutional compact.

53. The Supreme Court of Canada found that the federal Crown failed to act with diligence and purpose to implement the Métis land grant provision set out in s. 31 of the Manitoba Act, 1870. This constituted a breach of the honour of the Crown. In arriving at this legal conclusion, the Court wrote:

[140] What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied. The unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import.

54. This breach is an outstanding Métis claim flowing from a judicially recognized constitutional obligation, which burdens the federal Crown. It can only be resolved through good faith negotiations and a just settlement with the MMF. Lands in the Project area in Manitoba may need to be considered as a part of any future negotiations and settlement in fulfillment of the promise of 1.4 million acres.

55. The MSR Report of Mr. Thomas Isaac also states that:

The MMF Declaration is directly tied to the “unfinished business of reconciliation” with the Métis and this is more than simply a political or constitutional imperative. It is ultimately founded in legal principles and the rule of law. This is the fundamental basis for Canada implementing the MMF Declaration and engage with the MMF on this matter (p.36).

56. Clearly, the federal Crown’s failure to make good on the promise enshrined in s. 31 of the Manitoba Act gives rise to grievances and an outstanding claim in the areas of the ‘old postage stamp province’ of Manitoba through which the Project passes. Mr. Isaac further recommended that Manitoba be involved in the process of resolving these outstanding claims and fulfilling the MMF Declaration, writing that “Manitoba could play a positive role in a historically significant process” (p.40).

57. As set out in the MMF-Canada Framework Agreement, the MMF and Canada are currently engaged in government to government, nation to nation negotiations, spurred by the Supreme Court of Canada’s declaration in the MMF Case. Through these negotiations, the MMF seeks to advance reconciliation with the Crown and secure recognition and respect for the rights of the Manitoba Metis Community in our Homeland by way of a modern-day treaty, or “land claims agreement,” within the meaning of s. 35(3) of the Constitution Act, 1982.

12 58. Land claims agreements have been concluded with Aboriginal groups from across the country. Invariably, these constitutionally protected agreements include provisions to ensure that the Aboriginal party benefits appropriately from economic development in their territory. This can be achieved through a number of different mechanisms: requirements that proponents negotiate impact benefit agreements with Aboriginal parties (see, for example, the Inuit of Nunavut Land Claim Agreement, Article 26.2.1 attached to these submissions at Tab 22; the Labrador Inuit Land Claim Agreement, Articles 6.7.1 and 7.7.2 attached to these submissions at Tab 23; the Tlicho Land Claims and Self- Government Agreement, Article 23.4.1, attached to these submissions at Tab 24); guarantees of resource revenue sharing through royalty payments to Aboriginal parties (see, for example, the Gwich’in Land Claim Agreement, Chapter 9 attached to these submissions at Tab 25; the Maa-Nulth First Nations Final Agreement, Chapter 17 attached to these submissions at Tab 26; the Sahtu Dene and Metis Land Claim Agreement, and Chapter 10 attached to these submissions at Tab 27); or, detailed provisions regarding economic measures designed to benefit Aboriginal parties (see, for example, the Tlicho Land Claims and Self-Government Agreement, Chapter 26, attached to these submissions at Tab 28; Sahtu Dene and Metis Land Claim Agreement, and Chapter 12, attached to these submissions at Tab 29; see, for example, the Gwich’in Land Claim Agreement, Chapter 10 attached to these submissions at Tab 30).

59. Outside of land claims, other provinces have implemented meaningful mechanisms related to resource revenue sharing and ensuring that Aboriginal communities derive economic benefits from project in their traditional territories. The following are just some examples of policies, directives, and agreements in these other provincial jurisdictions:

(a) The First Nations Clean Energy Business Fund Revenue Sharing Agreements are negotiated between British Columbia and First Nations (treaty and non-treaty) to provide revenue sharing opportunities for clean energy projects. A list of current agreements is attached to these submissions at Tab 31, and an example of one of these agreements, made with the Kwantlen First Nation (a non-treaty First Nation) is attached to these submissions at Tab 32.

(b) The Forest Consultation and Revenue Sharing Agreements in British Columbia provide both treaty and non-treaty communities with direct economic benefits based on harvesting activities taking place in their traditional territories. A list of the current agreements is attached to these submissions at Tab 33, and an example of one of these agreements, made with the Adams Lake Indian Band (a non-treaty First Nation), is attached to these submissions at Tab 34.

(c) In British Columbia, Natural Gas Pipeline Benefits Agreements are agreements that provide economic benefits to treaty and non-treaty First Nations potentially affected by liquid natural gas pipeline development; linear corridor infrastructure similar to transmission lines. A list of current agreements is attached to these submissions at Tab 35, and an example agreement, made with Gitanyow First

13 Nation (a non-treaty First Nation; currently negotiating an Agreement in Principle), is attached to these submissions at Tab 36.

(d) Ontario’s Long-Term Energy Plan (“LTEP”) provides that Ontario “expects to see Aboriginal involvement become the standard for the future of major, planning transmission lines in Ontario. First Nation and Métis communities are interested in a wide range of opportunities—from procurement to skills training to commercial partnerships. When new, major transmission line needs are identified, the companies looking to develop the proposed lines will, in addition to fulfilling consultation obligations, work to involve potentially affected First Nations and Métis communities, where commercial feasible and where there is an interest” (pp 69-70). Ontario’s LTEP Plan additionally provides that “the government will continue to review participation programs to ensure they provide opportunities for First Nation and Métis communities” (p. 7). Ontario’s LTEP is attached to these submissions at Tab 37.

(e) Ontario has a wide suite of tools that are designed to encourage Aboriginal participation in renewable and other energy projects through, for instance, price adders and contract set-asides for Aboriginal-led or partnered renewable energy projects, and has the Aboriginal Loan Guarantee Program, which helps Aboriginal communities secure financing for their equity participation in clean energy and transmission projects (LTEP, p. 69). Another key program in Ontario is the Aboriginal Energy Partnership Program (“EPP”). A backgrounder on the EPP is attached to these submissions at Tab 38, and the Independent Electricity System Operator’s Energy Partnerships Program Partnership Rules is attached to these submissions at Tab 39. A letter directing that capacity funding be provided to Aboriginal communities who are exploring equity positions in major transmission projects in Ontario is attached to these submissions at Tab 40. A flowchart demonstrating the evolution of Ontario’s energy support programs is attached to these submission at Tab 41.

60. The MMF-Canada Framework Agreement provides Canada with a formal mandate to negotiate with the MMF on a variety of subject matters, including self-government, settlement lands, water and subsurface rights, forestry, environmental assessment, and land management. Reconciliation requires that these negotiations lead to meaningful measures to ensure that Manitoba Metis Community receives an equitable share of the benefits that result from the development of our Homeland. As these negotiations progress, the Manitoba Metis Community is entitled to expect that the Crown will consult with and accommodate the MMF it a way that protects our economic interests in our territory as they may be articulated in our eventual land claims agreement.

61. Beyond the context of the ongoing negotiations between Canada and the MMF, the Crown—including the provincial Crown—has an obligation to pursue reconciliation with the Manitoba Metis Community. The Province of Manitoba’s commitment to

14 reconciliation has been stated clearly in the Path to Reconciliation Act (SM 2016, c 5), a copy of which is attached to these submissions at Tab 42. Reconciliation, however, must include ensuring that Aboriginal groups have access to a fair share of the economic benefits of industrial development in their territory. As it stands, Manitoba’s regulatory processes and policies fail to encourage this sufficiently. As the province develops, Aboriginal people continue to be left behind. Manitoba should look to other jurisdictions that have adopted approaches to ensure that reconciliation is backed not only by words, but by much needed economic opportunities.

Engagement with Manitoba Hydro

62. Manitoba Hydro and the MMF negotiated “Engagement on Manitoba Hydro’s Manitoba- Minnesota Transmission Project: Work Plan & Budget” in November of 2015 (the “Engagement Workplan”. The Study Objectives set out in the Engagement Workplan include the identification of Métis Specific Interests along or in the proximity of the proposed route for the Project, including, for example “Lands Available for Métis Use” and “Métis Harvesting.” Another objective was to work collaborative to identify potential impacts to Métis specific interests. The Engagement Workplan further contemplates discussion of specific mitigation measures for potential impacts to Métis specific interests. A redacted copy of the Engagement Workplan is attached to these submissions at Tab 43.

All of which is respectfully submitted this 23rd day of May 2017.

15 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 Supreme Court Reports

Supreme Court of Canada Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. Heard: December 16, 2010; Judgment: July 21, 2011. File No.: 33340. [2011] 2 S.C.R. 670 | [2011] 2 R.C.S. 670 | [2011] S.C.J. No. 37 | [2011] A.C.S. no 37 | 2011 SCC 37 Her Majesty The Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and Registrar, Metis Settlements Land Registry, Appellants; v. Barbara Cunningham, John Kenneth Cunningham, Lawrent (Lawrence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham, Ray Stuart and Peavine Métis Settlement, Respondents, and Attorney General of Ontario, Attorney General of Quebec, Attorney General for Saskatchewan, East Prairie Métis Settlement, Elizabeth Métis Settlement, Métis Nation of Alberta, Métis National Council, Métis Settlements General Council, Aboriginal Legal Services of Toronto Inc., Women's Legal Education and Action Fund, Canadian Association for Community Living, Gift Lake Métis Settlement and Native Women's Association of Canada, Interveners.

(96 paras.)

Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Case Summary

Catchwords:

Constitutional law — Charter of Rights — Right to equality — Ameliorative programs — Alberta Metis Settlements Act providing that voluntary registration [page671] under the Indian Act precludes membership in a Métis settlement — Whether distinction drawn on enumerated or analogous grounds — Whether program genuinely ameliorative — Whether distinction serves or advances object of ameliorative program — Canadian Charter of Rights and Freedoms, s. 15(2) — Metis Settlements Act, R.S.A. 2000, c. M-14, ss. 75, 90.

Constitutional law — Charter of Rights — Freedom of association — Alberta Metis Settlements Act providing that voluntary registration under the Indian Act precludes membership in a Métis settlement — Whether legislation violates right to freedom of association — Canadian Charter of Rights and Freedoms, s. 2(d) — Metis Settlements Act, R.S.A. 2000, c. M-14, ss. 75, 90.

Constitutional law — Charter of Rights — Right to liberty — Alberta Metis Settlements Act providing that voluntary registration under the Indian Act precludes membership in a Métis settlement — Whether legislation violates right to liberty — Canadian Charter of Rights and Freedoms, s. 7 — Metis Settlements Act, R.S.A. 2000, c. M-14, ss. 75, 90.

16 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Summary: Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples -- Indians, Métis and Inuit. In Alberta, the relationship between the government and the Métis has evolved to a point where the Métis and the government entered into negotiations centered on establishing settlement lands for Métis communities, extending self-government to those communities, and ensuring the protection and enhancement of Métis culture and identity. The negotiations extended to provisions that would allow the Métis to maintain their separate identity as Métis, distinct from Indians. The Metis Settlements Act ("MSA") was enacted as a result of these negotiations. The claimants were formal members of a Métis community in Alberta which was established and administered under the terms of the MSA. They opted to register as status Indians in order to obtain medical benefits under the Indian Act. However, the MSA provides that voluntary registration under the Indian Act precludes membership in a Métis settlement. Their membership in the Métis settlement was revoked pursuant to s. 90 of the MSA. The claimants sought a declaration that the denial of membership pursuant to ss. 75 and 90 of the MSA was unconstitutional due to violations of the Charter guarantees of equality, freedom of association and liberty. The chambers judge dismissed [page672] these claims. The Court of Appeal allowed the appeal, finding that these provisions were inconsistent with the equality guarantee under s. 15 of the Charter. Held: The appeal should be allowed and the judgment of the chambers judge affirmed. The s. 15 claim must be dismissed. The MSA is an ameliorative program protected by s. 15(2) of the Charter. Section 15(2) permits governments to assist one group without being paralyzed by the necessity to assist all, and to tailor programs in a way that will enhance the benefits they confer while ensuring that the protection that s. 15(2) provides against the charge of discrimination is not abused for purposes unrelated to an ameliorative program's object and the goal of substantive equality. Ameliorative programs, by their nature, confer benefits on one group that are not conferred on others. These distinctions are generally protected if they serve or advance the object of the program, thus promoting substantive equality, even where the included and excluded groups share a similar history of disadvantage and marginalization. Where the government relies on s. 15(2), the first question is whether the law makes an adverse distinction against the claimant group on the basis of one of the grounds set out in s. 15(1) or an analogous ground. If so, the next question is whether the distinction is saved by s. 15(2). The government must show, on the evidence, that the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality, that there is a correlation between the program and the disadvantage suffered by the target group, and that rational means are being used to pursue the ameliorative goal. If these conditions are met, s. 15(2) protects all distinctions drawn on enumerated or analogous grounds that serve and are necessary to the ameliorative purpose, to the extent justified by the object of the ameliorative program. If not, the analysis returns to s. 15(1) and, if substantive discrimination is established, to s. 1. In this case, and assuming that the distinction between the Métis and status Indians in the MSA is a distinction on an enumerated or analogous ground, the MSA program is a genuinely ameliorative program. Unlike many ameliorative programs, its object is not the direct conferral of benefits on individuals within [page673] a particular group, but the enhancement and preservation of the identity, culture and self-governance of the Métis through the establishment of a Métis land base. The correlation between the program and the disadvantage suffered by the target group, one of the three aboriginal peoples of Canada recognized in s. 35 of the Constitution, is manifest. As excluding Métis who are also status Indians from formal membership in Métis settlements serves or advances the object of the ameliorative program, s. 15(2) protects the MSA against the charge of discrimination. The Métis have a right to their own culture and drawing distinctions on this basis reflects the Constitution and serves the legitimate expectations of the Métis people. The exclusion corresponds to the historic and social distinction between the Métis and Indians and respects the role of the Métis in defining themselves as a people. Moreover, achieving the object of the program would be more difficult without the distinction. The fact that some people may

Page17 2 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

identify as both Métis and Indian does not negate the general correspondence underlying the distinction between the two groups. The record does not provide an adequate basis to assess the claimants' s. 2(d) argument. The s. 7 claim also fails. There is no need to decide whether place of residence is protected by s. 7 because any impact on liberty was not shown before the chambers judge to be contrary to the principles of fundamental justice. Requiring Aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose whether they wish to fall under the Indian Act or the MSA is not grossly disproportionate to the interest of Alberta in securing a land base for the Métis.

Cases Cited

Referred to: Alberta (Minister of International and Intergovernmental Relations) v. Peavine Metis Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Lovelace v. Ontario (1997), 33 O.R. (3d) 735, aff'd 2000 SCC 37, [2000] 1 S.C.R. 950; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.

[page674]

Statutes and Regulations Cited

Act to amend the Indian Act, S.C. 1985, c. 27.

Alberta-Metis Settlements Accord, 1989.

Canadian Charter of Rights and Freedoms, ss. 1, 2(d), 7, 15.

Constitution Act, 1982, ss. 35, 52.

Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C-24, preamble.

Indian Act, R.S.C. 1985, c. I-5.

Metis Betterment Act, R.S.A. 1955, c. 202.

Metis Population Betterment Act, S.A. 1938, 2 Sess., c. 6, s. 2(a) "Metis".

Metis Settlements Act, R.S.A. 2000, c. M-14, ss. 0.1, 1(j) "Metis", 75, 90, 91, 92, 93.

Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.

Transitional Membership Regulation, Alta. Reg. 337/90.

Authors Cited

Page18 3 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Alberta. Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta's Metis Settlements. Edmonton: Alberta Municipal Affairs, 1984.

Alberta. Report of the Royal Commission Appointed to Investigate the Conditions of the Half-Breed Population of Alberta. Edmonton: Department of Lands and Mines, 1936.

History and Disposition: APPEAL from a judgment of the Alberta Court of Appeal (McFadyen, Costigan and Ritter JJ.A.), 2009 ABCA 239, 8 Alta. L.R. (5) 16, 457 A.R. 297, 457 W.A.C. 297, 310 D.L.R. (4) 519, 194 C.R.R. (2d) 205, [2009] 9 W.W.R. 584, [2009] 3 C.N.L.R. 261, [2009] A.J. No. 678 (QL), 2009 CarswellAlta 952, reversing a decision of Shelley J., 2007 ABQB 517, 81 Alta. L.R. (4) 28, 424 A.R. 271, 160 C.R.R. (2d) 185, [2008] 1 W.W.R. 507, [2007] 4 C.N.L.R. 179, [2007] A.J. No. 913 (QL), 2007 CarswellAlta 1103. Appeal allowed.

Counsel

Robert J. Normey and David N. Kamal, for the appellants.

Kevin S. Feth, Q.C., and Jeremy L. Taylor, for the respondents.

Janet E. Minor and Mark Crow, for the intervener the Attorney General of Ontario.

Isabelle Harnois, for the intervener the Attorney General of Quebec.

[page675]

Written submissions only by P. Mitch McAdam and R. James Fyfe, for the intervener the Attorney General for Saskatchewan.

Richard B. Hajduk and Rodger C. Gibbs, for the intervener the East Prairie Métis Settlement.

Thomas R. Owen and Tara Rout, for the intervener the Elizabeth Métis Settlement.

Beverly J. M. Teillet, for the intervener the Métis Nation of Alberta.

Jason Madden, Clément Chartier, Q.C., and Kathy L. Hodgson-Smith, for the intervener the Métis National Council.

Garry Appelt and Keltie L. Lambert, for the intervener the Métis Settlements General Council.

Jonathan Rudin and Mandy Wesley, for the intervener the Aboriginal Legal Services of Toronto Inc.

Dianne Pothier and Joanna L. Birenbaum, for the intervener the Women's Legal Education and Action Fund.

Laurie Letheren and C. Tess Sheldon, for the intervener the Canadian Association for Community Living.

Sandeep K. Dhir and Lindsey E. Miller, for the intervener the Gift Lake Métis Settlement.

Page19 4 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Mary Eberts, for the intervener the Native Women's Association of Canada.

The judgment of the Court was delivered by

McLACHLIN C.J.

I. Overview

1 Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples - Indians, Métis and Inuit. The claimants are members of the Métis settlement of Peavine, Alberta; they are also status Indians. The Metis Settlements Act, R.S.A. 2000, c. M-14 ("MSA"), does not permit [page676] status Indians to become formal members of any Métis settlement, including Peavine. The claimants now apply for a declaration that this denial of membership violates the Canadian Charter of Rights and Freedoms guarantees of equality, freedom of association and liberty, and is unconstitutional.

2 I conclude that the claimants have failed to establish that the sections of the MSA that led to their exclusion from the Peavine settlement are unconstitutional.

3 The claimants assert that the MSA's exclusion of Métis who are also status Indians from membership in the Peavine Métis Settlement violates the guarantee of equality of s. 15 of the Charter. I conclude that s. 15(2) of the Charter, which permits inequalities associated with ameliorative programs aimed at helping a disadvantaged group, provides a complete answer to this claim. The purpose and effect of the MSA is to enhance Métis identity, culture, and self-governance by creating a land base for Métis. The exclusion of status Indians from membership in the new Métis land base serves and advances this object and hence is protected by s. 15(2). I also conclude that the claimants have failed to establish that the MSA's exclusion from membership in the settlement violates freedom of association under s. 2(d) of the Charter or liberty under s. 7 of the Charter.

4 I would therefore allow the appeal and affirm the judgment of the chambers judge.

II. The History and Framework of the Program

5 The Métis were originally the descendants of eighteenth-century unions between European men - explorers, fur traders and pioneers - and Indian women, mainly on the Canadian plains, which now form part of Manitoba, Saskatchewan [page677] and Alberta. Within a few generations the descendants of these unions developed a culture distinct from their European and Indian forebears. In early times, the Métis were mostly nomadic. Later, they established permanent settlements centered on hunting, trading and agriculture. The descendants of Francophone families developed their own Métis language derived from French. The descendants of Anglophone families spoke English. In modern times the two groups are known collectively as Métis.

6 Following the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), which organized the territories recently acquired by Great Britain and reserved certain lands for Indians, the Crown adopted a practice of making treaties with Indian bands. Thus, most Indians on the prairies are Treaty Indians. In exchange for surrendering their traditional lands to the Crown, they were granted reservations and other benefits, such as the right to hunt and trap on Crown land. Today, the welfare of Indians is dealt with under the Indian Act, R.S.C. 1985, c. I-5, which provides a variety of benefits to status Indians living on and off reserve.

7 The Crown did not apply to the Métis its policy of treating with the Indians and establishing reservations and other benefits in exchange for lands. In some regions, it adopted a scrip system that accorded allotments of land to individual Métis. However, Métis communities were not given a collective reservation or land base; they did not Page20 5 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 enjoy the protections of the Indian Act or any equivalent. Although widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities, the law remained blind to the unique history of the Métis and their unique needs.

[page678]

8 Governments slowly awoke to this legal lacuna. In 1934, the Alberta legislature established the Ewing Commission, a "Royal Commission Appointed to Investigate the Conditions of the Half-Breed Population of Alberta". The mandate of the Commission was to inquire into the problems of "health, education, relief and general welfare of [the half-breed] population" and to make recommendations based on its investigation.

9 The Ewing Commission Report (1936) defined the terms "Metis" or "half-breed" for its own purposes as "a person of mixed blood, white and Indian, who lives the life of the ordinary Indian, and includes a non-treaty Indian" but excluding persons of mixed blood (Indian and white) who had settled down as farmers and who did not need or desire public assistance (p. 4).

10 The Metis Population Betterment Act, S.A. 1938, 2nd Sess., c. 6, was enacted as a result of the findings and recommendations of the Ewing Commission. The term "Metis" was defined in s. 2(a) of the Act as:

... a person of mixed white and Indian blood but does not include either an Indian or a non-treaty Indian as defined in The Indian Act, being chapter 98 of the Revised Statutes of Canada, 1927.

11 Renamed, The Metis Betterment Act, R.S.A. 1955, c. 202, continued to exclude anyone registered as an Indian under the Indian Act from the definition of "Metis" and expanded the exclusion to encompass anyone with the ability to be registered as an Indian under the Indian Act: s. 2(a).

12 The Metis Betterment Act, while according limited statutory recognition to Métis, did not compel the Province of Alberta to establish a land base for Métis communities; nor did it provide adequate support for preservation of the distinct Métis identity and culture. Like the predecessor [page679] legislation, it continued to deny the Métis any form of self-government.

13 The landscape shifted dramatically in 1982, with the passage of the Constitution Act, 1982. In the period leading up to the amendment of the Constitution, Indian, Inuit and Métis groups fought for constitutional recognition of their status and rights. Section 35 of the Constitution Act, 1982 entrenched existing Aboriginal and treaty rights and recognized three Aboriginal groups - Indians, Inuit, and Métis. For the first time, the Métis were acknowledged as a distinct rights-holding group.

14 In anticipation of the coming into force of the Constitution Act, 1982, the Province of Alberta struck a Joint Métis- Government Committee to review The Metis Betterment Act and Regulations. The Committee, comprised of the chair, the late Grant MacEwan, who was chosen by the Métis and government, along with two members from government and two from the Métis community, prepared a report, dated July 12, 1984, setting out its conclusions and recommendations (Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta's Metis Settlements ("MacEwan Report")).

15 The MacEwan Report defined a "Metis" simply as "an individual of aboriginal ancestry who identifies with Metis history and culture" (at p. 12), and recommended legislation to secure a land base and self-government for Métis communities in the province. The Alberta legislature accepted these recommendations in principle by authorizing an amendment to the Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C-24.

16 A period of negotiation between the Métis of Alberta and the government of Alberta followed. [page680] The negotiations centered on establishing settlement lands for Métis communities, extending self-government to those communities, and ensuring the protection and enhancement of Métis culture and identity. Importantly for this case, Page21 6 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 the negotiations extended to provisions that would allow the Métis to maintain their separate identity as Métis, distinct from Indians.

17 These negotiations culminated on July 1, 1989, with the Alberta-Metis Settlements Accord. The following year, pursuant to the Accord, Alberta granted the Métis Settlements General Council fee simple title to the lands of the eight Métis communities and passed a suite of legislation to protect Métis rights, including the MSA at issue here.

18 The constitution of Alberta, which, in the British tradition, is unwritten, was amended to provide constitutional recognition for the changes. The preamble to the Constitution of Alberta Amendment Act, 1990 offers crucial insight into the objects of the legislation:

WHEREAS the Metis were present when the Province of Alberta was established and they and the land set aside for their use form a unique part of the history and culture of the Province; and WHEREAS it is desired that the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta and, to that end, Her Majesty in right of Alberta is granting title to land to the Metis Settlements General Council; and WHEREAS Her Majesty in right of Alberta has proposed the land so granted be protected by the Constitution of Canada, but until that happens it is proper that the land be protected by the constitution of the Province; ...

[page681]

19 The Recital to the MSA, added in 2004, contains the following expression of purpose:

0.1 This Act is enacted (a) recognizing the desire expressed in the Constitution of Alberta Amendment Act, 1990 that the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta, (b) realizing that the Crown in right of Alberta granted land to the Metis Settlements General Council by letters patent and that the patented land is protected by an amendment to the Constitution of Alberta and by the Metis Settlements Land Protection Act, (c) in recognition that this Act, the Constitution of Alberta Amendment Act, 1990, the Metis Settlements Land Protection Act and the Metis Settlements Accord Implementation Act were enacted in fulfilment of Resolution 18 of 1985 passed unanimously by the Legislative Assembly of Alberta, and (d) acknowledging that the Government of Alberta and the Alberta Federation of Metis Settlement Associations made The Alberta-Metis Settlements Accord on July 1, 1989.

20 The MSA defined "Metis" for its purposes as "a person of aboriginal ancestry who identifies with Metis history and culture" (s. 1(j)). Consistent with the negotiations that preceded it and the desire to preserve Métis culture and identity, the MSA limited the scope for status Indians to be recognized as members of settlement communities. Section 75 provides that persons registered as Indians or Inuit may not apply for membership in a Métis settlement, unless certain conditions are met and membership is authorized by a settlement bylaw. Because its provisions are central to this case, I set out s. 75 in relevant part:

Page22 7 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

75(1) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for [page682] the purposes of a land claims settlement is not eligible to apply for membership or to be recorded as a settlement member unless subsection (2) or (3.1) applies. (2) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if (a) the person was registered as an Indian or an Inuk when less than 18 years old, (b) the person lived a substantial part of his or her childhood in the settlement area, (c) one or both parents of the person are, or at their death were, members of the settlement, and (d) the person has been approved for membership by a settlement bylaw specifically authorizing the admission of that individual as a member of the settlement. (3) If a person who is registered as an Indian under the Indian Act (Canada) is able to apply to have his or her name removed from registration, subsection (2) ceases to be available as a way to apply for or to become a settlement member. (3.1) In addition to the circumstances under subsection (2), an Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if he or she meets the conditions for membership set out in a General Council Policy.

...

21 Additionally, the Transitional Membership Regulation, Alta. Reg. 337/90, permitted those registered on a settlement membership list upon the entry into force of the MSA to maintain their membership even if they were already registered or were eligible to register as Indians under the Indian Act. Persons registering as Indians after the coming into force of the MSA on November 1, 1990, were not covered by these grandfathering provisions.

[page683]

22 Section 90 of the MSA confirms that voluntary registration under the Indian Act precludes membership in a Métis settlement unless a General Council Policy provides otherwise:

90(1) Unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if (a) the person voluntarily becomes registered as an Indian under the Indian Act (Canada), or (b) the person becomes registered as an Inuk for the purpose of a land claims agreement. (2) On receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the Settlement Members List.

No General Council Policy addressing settlement membership for status Indians has been passed.

23 A settlement member who loses membership under these provisions loses any interest in the settlement land, but may continue to reside on a Métis settlement unless expelled. Sections 91 and 93 provide:

91(1) When the membership of a settlement member terminates or is terminated, the member (a) loses any rights gained by his or her former membership to reside on or occupy patented land, but

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(b) does not lose any right to reside on patented land acquired by or under this or any other enactment, a General Council Policy or a settlement bylaw. (2) The termination of settlement membership does not affect any right acquired by the spouse or adult [page684] interdependent partner or minor children of the member to continue to reside on patented land. (3) A settlement council and a person whose membership has been terminated may agree on the compensation to be paid to the former settlement member for improvements made on land held by the member and if they cannot agree either of them may refer the matter to the Appeal Tribunal.

...

93(1) A person who is permitted to reside in a settlement area under section 92 is entitled to continue to reside in the area unless the settlement council, for just cause, orders the person expelled from the settlement area. (1.1) A settlement council may order a person who is not permitted to reside in the settlement area expelled from the settlement area if the person refuses to leave the settlement area on the request of the settlement council. (2) No order can be made under subsection (1) or (1.1) unless the person concerned has been given an opportunity to tell the settlement council why he or she should be able to remain in the settlement area.

24 While the negotiations proceeded with the Alberta Métis to achieve a land base, self-governance and support for Métis culture and identity, an important change was made to broaden the definition of who could register as an Indian under the federal Indian Act. In An Act to amend the Indian Act, S.C. 1985, c. 27 (Bill C-31), Parliament reinstated the right to Indian status for many Métis settlement members who had been previously denied status, including the claimants. Prior to this amendment, Indian women who married Métis men lost their Indian status and could not pass it to their descendants. The new act went some way towards correcting this injustice, recognized the descendants of these unions, and gave them the option of registering as status Indians.

25 The claimants, members of the Métis settlement of Peavine, opted to register as status Indians [page685] in order to obtain medical benefits under the Indian Act. They did so outside the limited window provided by the Transitional Membership Regulation. As a result, the Registrar of the Métis Settlements Land Registry revoked their membership in the settlement of Peavine, under s. 90 of MSA. They sued for a declaration that s. 90 and its companion provision, s. 75, are inconsistent with ss. 15, 2(d) and 7 of the Charter in a manner that cannot be justified under s. 1 and are thus null and void under s. 52 of the Constitution Act, 1982.

26 Underlying this litigation is the suggestion that the manner in which the Cunninghams' registration was revoked was procedurally unfair. The list that the Peavine Council submitted to the Registrar of the Métis Settlements Land Registry for revocation of membership did not include all of the members who had obtained Indian status, but only the members of the Cunningham family. Following related proceedings (Alberta (Minister of International and Intergovernmental Relations) v. Peavine Metis Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1), the Registrar removed the claimants from the Peavine membership list on May 10, 2001. Though bad faith and improper motivations were alleged against the then Council, no judicial review or other action was commenced on that basis. Accordingly, the matter of how the revocation proceeded is not before this Court.

III. The Rulings in the Alberta Courts

A. The Chambers Judge

27 The chambers judge, Shelley J., dismissed the claimants' application (2007 ABQB 517, 81 Alta. L.R. (4th) 28). She accepted the claimants' view that the exclusion from membership was based on the analogous ground of registration as a status Indian. She concluded, however, that the MSA did not violate the equality provision of s. 15(1) of the Charter because the relevant contextual factors did [page686] not establish that ss. 75 and 90 resulted Page24 9 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 in the stereotyping or disadvantage required to show discrimination. She accepted that the provisions might cause the claimants to lose their right to reside on the Peavine settlement without having obtained corresponding benefits under the Indian Act, and that even if they were able to continue to reside on the land under s. 92, as it appeared they currently did, they would have no say in settlement governance or the right to vote. However, they would have acquired benefits available to them under the Indian Act as status Indians.

28 Although she did not conduct an analysis under s. 15(2) of the Charter (her decision was before R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, which clarified the steps of the s. 15(2) analysis), the chambers judge concluded that the ameliorative purpose and effect of the MSA supported the exclusion under ss. 75 and 90 of Métis who registered as status Indians. In her view, the purposes of enhancing Métis culture and identity, as well as the preservation of land rights and self-governance, were furthered by the exclusion of status Indians, subject to any General Council Policy. While the loss of the right to participate in the governance of the Métis community with which they had been associated on a long-term basis was a severe consequence, this was offset by the fact that by registering as Indians under the Indian Act, the claimants had chosen to receive other rights and benefits.

29 The chambers judge also dismissed the Cunninghams' s. 2(d) claim for breach of freedom of association. Section 2(d) of the Charter, she held, protects association only for the purpose of protecting fundamental freedoms, not access to a particular statutory regime. The privilege of membership does not exist independently of the legislative regime established by the MSA. Moreover, the claimants had not shown substantial interference with their associational right, in the sense that the MSA made it next to impossible for them to pursue [page687] common goals. It was their decision to register as Indians, not state action, that resulted in any inability to exercise fundamental freedoms.

30 Finally, the chambers judge found no violation of s. 7 of the Charter. Even if the MSA limited the claimants' liberty by jeopardizing their right to reside on the Peavine settlement, the deprivation was not arbitrary or grossly disproportionate, and hence not contrary to the principles of fundamental justice, as required by s. 7. She found that "[r]equiring aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose which legislative scheme they wish to fall under - the Indian Act or the MSA - is not a requirement which is grossly disproportionate to the interest of Alberta in securing a land base for the Métis" (para. 130).

B. The Court of Appeal

31 The Court of Appeal concluded that ss. 75 and 90 were inconsistent with the equality guarantee in s. 15 of the Charter and thus invalid, and directed registration of the claimants as members of the Peavine settlement ( 2009 ABCA 239, 8 Alta. L.R. (5th) 16).

32 As there was no dispute that registration as a status Indian was an analogous ground under s. 15(1) of the Charter, the court, proceeding post-Kapp, moved to s. 15(2), which provides that governments may adopt ameliorative programs that might otherwise be viewed as conferring benefits unequally without violating s. 15. It held that, for the exclusion of status Indians to be saved by s. 15(2) by virtue of having an ameliorative or remedial purpose, it must be rationally connected to the enhancement and preservation of Métis culture and self-governance and the securing of a Métis land base. This was not established, in the court's view. Noting that the exclusion from membership of people who had identified with and lived in the Métis culture for all or most of their lives was [page688] "relatively arbitrary", the court concluded that "[i]t is difficult to imagine that such exclusion is in furtherance of the enhancement and preservation of Métis culture, identity and self-governance" (para. 28). Moreover, since Métis membership is rooted in Aboriginal ancestry, removal of membership is at odds with the goal of enhancing Métis culture. There was no evidence that settlements were being overrun by status Indians or that the number of status Indians seeking settlement membership would impair the aims of the MSA. Finally, denying status Indians membership because of registration under the Indian Act constituted a punishment for behaviour - registering as status Indians - which should not be protected by s. 15(2). The court concluded that exclusion was not rationally connected to advancing a legislative purpose, and was not saved by s. 15(2).

33 Returning to s. 15(1), the Court of Appeal held that the law stereotyped people like the claimants as being "less Page25 10 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Métis" because of their registration under the Indian Act in a way that did not correspond to their actual circumstances (para. 43). The court concluded that they "are vulnerable to both a unique disadvantage and to stereotyping ... resulting in differential treatment and discrimination" (para. 45).

34 The Court of Appeal declined to rule on whether freedom of association under s. 2(d) was violated, as there was insufficient evidence and argument on the issue. It also declined to rule on the s. 7 claim.

35 Accepting the government's claimed purpose - promoting the Métis culture, protecting [page689] and distinguishing it from Indian culture, furthering self-governance, and preserving a Métis land base - the court held that there was no pressing and substantial objective capable of justifying the infringement of s. 15(1) of the Charter caused by the exclusion of the claimants and other status Indians from settlement membership under ss. 75 and 90 of the MSA. The promotion of Métis culture could not serve as such an objective, since there was no evidence to support the view that the provisions were meant to help protect and distinguish Métis culture from Indian culture. Nor could the goal of furthering self-governance serve as an objective because there was no evidence that the provisions provide Métis settlements with means of controlling their membership.

36 The Court of Appeal added that, had a pressing and substantial objective been established, exclusion would still not be justified under s. 1 because ss. 75 and 90 were neither rationally connected to the objective nor minimally impairing. The absolute removal of membership went beyond what was necessary to achieve the goals of distinguishing Métis culture from Indian culture and self-governance, in the court's view. Consequently, the membership provisions could not be saved by s. 1, and the appeal was allowed.

IV. The Equality Claim Under Section 15 of the Charter

37 Section 15 of the Charter states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[page690]

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

A. The Purpose of Section 15(2)

38 Section 15 of the Charter protects against discriminatory laws and government actions. Its goal is to enhance substantive equality. It does this in two ways.

39 First, s. 15(1) is aimed at preventing discrimination on grounds such as race, age and sex. Laws and government acts that perpetuate disadvantage and prejudice, or that single out individuals or groups for adverse treatment on the basis of stereotypes, violate s. 15(1) and are invalid, subject to justification under s. 1 of the Charter: Kapp; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396.

40 Second, s. 15(2) is aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. It does this by affirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.

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41 The purpose of s. 15(2) is to save ameliorative programs from the charge of "reverse discrimination". Ameliorative programs function by targeting specific disadvantaged groups for benefits, while excluding others. At the time the Charter was being drafted, affirmative action programs were being challenged in the United States as discriminatory - a phenomenon sometimes called reverse discrimination. The underlying rationale of s. 15(2) is that governments should be permitted to [page691] target subsets of disadvantaged people on the basis of personal characteristics, while excluding others. It recognizes that governments may have particular goals related to advancing or improving the situation of particular subsets of groups. Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice.

B. The Steps Under Section 15(2)

42 This Court in Kapp set out the basic framework for cases where the government relies on s. 15(2).

43 As in all s. 15 cases, the first question is whether the law makes an adverse distinction against the claimant group on the basis of one of the grounds set out in s. 15(1) or an analogous ground.

44 If so, and if the government relies on s. 15(2) to defend the distinction, the analysis proceeds immediately to whether the distinction is saved by s. 15(2). To establish this, the government must show that the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality: Kapp, at para. 41. There must be a correlation between the program and the disadvantage suffered by the target group: Kapp, at para. 49. Courts must examine the program to determine whether, on the evidence, the declared purpose is genuine; a naked declaration of an ameliorative purpose will not attract s. 15(2) protection against a claim of discrimination: Kapp, at para. 49.

[page692]

45 If these conditions are met, s. 15(2) protects all distinctions drawn on enumerated or analogous grounds that "serve and are necessary to" the ameliorative purpose: Kapp, at para. 52. In this phrase, "necessary" should not be understood as requiring proof that the exclusion is essential to realizing the object of the ameliorative program. What is required is that the impugned distinction in a general sense serves or advances the object of the program, thus supporting the overall s. 15 goal of substantive equality. A purposive approach to s. 15(2) focussed on substantive equality suggests that distinctions that might otherwise be claimed to be discriminatory are permitted, to the extent that they go no further than is justified by the object of the ameliorative program. To be protected, the distinction must in a real sense serve or advance the ameliorative goal, consistent with s. 15's purpose of promoting substantive equality.

46 The fundamental question is this: up to what point does s. 15(2) protect against a claim of discrimination? The tentative answer suggested by Kapp, as discussed above, is that the distinction must serve or advance the ameliorative goal. This will not be the case, for instance, if the state chooses irrational means to pursue its ameliorative goal. This criterion may be refined and developed as different cases emerge. But for our purposes, it suffices.

47 If s. 15(2) does not protect the impugned distinction, the analysis returns to s. 15(1) to determine whether the distinction constitutes substantive discrimination by perpetuating disadvantage or prejudice or by inappropriately stereotyping the excluded group.

48 If substantive discrimination is established under s. 15(1), the final question is whether the government has shown it to be justified under s. 1 of the Charter. Page27 12 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

[page693]

49 Section 15(2), understood in this way, permits governments to assist one group without being paralyzed by the necessity to assist all, and to tailor programs in a way that will enhance the benefits they confer while ensuring that the protection that s. 15(2) provides against the charge of discrimination is not abused for purposes unrelated to an ameliorative program's object and the goal of substantive equality.

50 This understanding of s. 15(2) is consistent with the approach to an ameliorative program taken in the earlier case of Lovelace v. Ontario (1997), 33 O.R. (3d) 735 (Ont. C.A.), aff'd 2000 SCC 37, [2000] 1 S.C.R. 950, which upheld a similar distinction from a benefit under an ameliorative program. The ameliorative program at issue in Lovelace, as here, involved different groups of Aboriginal people - registered Indian bands, who have reserves, and unregistered Indian bands and the Métis, who do not have reserves. It sought to enhance the situation of one of these groups, on-reserve Indians, by permitting the establishment of a reserve-based casino. As here, the excluded group of off-reserve Ontario Aboriginals claimed that the distinction discriminated against them contrary to s. 15 of the Charter.

51 While Lovelace pre-dated Kapp, the Ontario Court of Appeal's analysis followed a broadly similar template. The court first examined whether the program was a genuinely ameliorative program. Having confirmed that it was, it then asked whether restriction of the benefits of the casino program to on-reserve Indians (members of registered reserve bands) conformed to the object of the program. It concluded that it did. The object of the scheme was to benefit on-reserve Indians. The narrow focus of the program corresponded to historic, social and governance differences between the targeted groups and other Aboriginal groups. It also supported the program's object of enhancing the situation of on-reserve Indians; the court observed that if the program were extended to all Ontario Aboriginals, it would not achieve its goal. [page694] Those factors, along with the magnitude of the project, its attendant social risks and its status as a pilot project, supported the claim that the true purpose of the program was to ameliorate the social and economic conditions of the targeted group - the registered bands. No further proof was needed to show that the program was authorized by s. 15(2) (pp. 758-63).

52 On further appeal, this Court (albeit proceeding under s. 15(1) and using s. 15(2) as an interpretive guide only) confirmed that conclusion, emphasizing that the distinction made by the program between members of the registered reserve bands and off-reserve Aboriginals was consistent with the purpose of securing substantive equality that underlies s. 15 as a whole. Despite the shared disadvantage of the included and excluded groups, this Court in Lovelace concluded that social and historic differences between the two groups, as well as realization of the object of the program, supported the distinction between on-reserve and off-reserve Indians and Métis. The exclusion from the casino program of Aboriginal communities not benefitting from band status under the Indian Act was thus upheld.

53 This brings us to the following propositions. Ameliorative programs, by their nature, confer benefits on one group that are not conferred on others. These distinctions are generally protected if they serve or advance the object of the program, thus promoting substantive equality. This is so even where the included and excluded groups are aboriginals who share a similar history of disadvantage and marginalization: Lovelace.

54 These propositions, as discussed more fully below, suffice to resolve the issue that arises in this case. What is at issue here is a special type of ameliorative program - one designed to enhance and [page695] preserve the identity, culture and self-governance of a constitutionally recognized group. The group targeted by the program precisely corresponds to a group that is identified as one of the groups that make up the "aboriginal peoples of Canada" in s. 35 of the Constitution Act, 1982. The object of enhancing the identity, culture and self-governance of the Métis as a s. 35 group, of necessity, must permit the exclusion of other s. 35 groups since an essential part of their unique identity is that they are "not Indian" and "not Inuit".

55 It is therefore unnecessary to embark on a lengthy consideration of precisely what considerations may enter into Page28 13 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 the issue of how distinctions are made for ameliorative programs in different types of cases. The law is best left to develop on an incremental basis.

C. Application

1. Is the Distinction Based on an Enumerated or Analogous Ground of Discrimination?

56 Following the analysis set out in Kapp, the first question is whether the distinction between Métis and status Indians in the MSA constitutes a distinction on an enumerated or analogous ground, thereby attracting s. 15 protection. Absent such a distinction, no claim lies under s. 15.

57 The ground advanced and applied in the courts below is registration as a status Indian, as distinguished from non-status Indians or Métis. This ground was accepted as analogous without much discussion below.

58 I refrain from making a determination as to whether registration as a status Indian constitutes an analogous ground of discrimination. The trial [page696] judge's conclusion that it did constitute an analogous ground was not challenged by the Crown in Right of Alberta before the Court of Appeal and the parties have not thoroughly canvassed the issue before this Court. Since the case has proceeded on the assumption that an analogous ground was made out, I will assume that it has been, and consider the remaining aspects of s. 15 as they apply in this case.

2. Is the Program a Genuinely Ameliorative Program?

59 To qualify as a genuinely ameliorative program, the program must be directed at improving the situation of a group that is in need of ameliorative assistance: Kapp, at para. 41. There must be a correlation between the program and the disadvantage suffered by the target group: Kapp, at para. 49. The goal is to promote the substantive equality of the group: Kapp, at para. 16. To ascertain whether these conditions are met, one looks first to the object of the program, and then asks whether it correlates to actual disadvantage suffered by the target group.

60 I begin with the object of the MSA program. The discussion that follows establishes that the object of the program is to enhance Métis identity, culture and self-government through the establishment of a Métis land base. This is a special type of ameliorative program. Unlike many ameliorative programs, the object of the program is not the direct conferral of benefits onto individuals within a particular group, but the strengthening of the identity of Métis as a group - one of three aboriginal groups recognized in the Constitution.

61 The object of an ameliorative program must be determined as a matter of statutory interpretation, having regard to the words of the enactment, expressions of legislative intent, the legislative history, and the history and social situation of the affected groups. Defining the objective of the ameliorative program too broadly or too narrowly will skew the analysis.

[page697]

62 Applying this approach, I conclude that the object of the MSA program is not the broad goal of benefiting all Alberta Métis, as the claimants contend, but the narrower goal of establishing a Métis land base to preserve and enhance Métis identity, culture and self-governance, as distinct from surrounding Indian cultures and from other cultures in the province.

63 I turn first to the words of the enactment. The preamble to the amendments to the Constitution of Alberta Amendment Act emphasizes the desire to preserve the "unique" Métis culture and identity. It refers to the land set aside for Métis use as forming "a unique part of the history and culture of the Province". It states that it is desirable Page29 14 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

"that the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance".

64 The MSA echoes these objects in its Recital, which proclaims that "the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta".

65 The wording of the MSA's provisions supports the view that the object of the ameliorative program was to benefit Métis, as distinct from Indians, by setting up a land base that would strengthen an independent Métis identity, culture and desire for self-governance. The title of the statute, the "Metis Settlements Act", suggests that the focus is not on benefiting the Métis generally, but on establishing land-based settlements. The enactment sets out detailed provisions for the establishment of a Métis land base and governance of the land base by Métis members.

[page698]

66 The history of the struggle that culminated in the MSA supports this view of the object of the challenged legislation. The MSA, as discussed earlier, is the result of a negotiation process between the Métis of Alberta and the Province and the outcome of an ongoing struggle for self-preservation. The Métis considered themselves as one of three Aboriginal groups in Canada, but this was not recognized until the Constitution Act, 1982. Unlike Indians, however, they enjoyed no land base from which to strengthen their identity and culture or govern themselves. Nor did they enjoy the protection of an equivalent to the Indian Act. Their aboriginality, in a word, was not legally acknowledged or protected. Viewed in this perspective, the ameliorative program embodied in the MSA emerges as an attempt to provide to Alberta's Métis settlements similar protections to those which various Indian bands have enjoyed since early times.

67 From the beginning, the quest that led to the MSA was premised on the view that the Métis, while Aboriginals, were unique - that they were different from Indians. The first step was the Ewing Commission in 1934, which led to the recognition that the Métis were distinct from other Aboriginal groups, notably Indians, in The Metis Population Betterment Act of 1938. The MSA, which was the result of a review of The Metis Betterment Act, which was in turn prompted by the recognition of the Métis as a distinct Aboriginal group in the Constitution Act, 1982, maintains the historic insistence on the need to exclude Indians from membership in Métis settlements. The current membership provision is less exclusionary and arbitrary than the earlier statutes, which absolutely excluded all actual and potential status Indians, but the MSA maintains the requirement for a distinct Métis settlement which, subject to limited exceptions, excludes status Indians from living on settlement lands.

[page699]

68 The Constitution Act, 1982, gave constitutional recognition to the Métis as one of three distinct Aboriginal groups, provoking review of The Metis Betterment Act and Regulations. The MacEwan Committee was conceived as a partnership, composed of a jointly chosen chair and an equal number of Métis and non-Métis Commissioners. The MSA was the ultimate result of the Committee's work and the negotiations that followed over the next five years.

69 In summary, the preamble, wording, legislative history, and social context of the MSA combine to support the conclusion that the MSA is not a general benefit program, but a unique scheme that seeks to establish a Métis land base to preserve and enhance Métis identity, culture and self-government, as distinct from Indian identity, culture and modes of governance. In seeking this objective, it reflects the constitutional scheme, which endorses Indians, Métis and Inuit as distinct Aboriginal groups with distinct identities, cultures and rights.

70 Finally, as required by Kapp, there is a correlation between the program and the disadvantage suffered by the Page30 15 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 target group. In this case, the correlation is manifest. The history of the Métis is one of struggle for recognition of their unique identity as the mixed race descendants of Europeans and Indians. Caught between two larger identities and cultures, the Métis have struggled for more than two centuries for recognition of their own unique identity, culture and governance. The constitutional amendments of 1982 and, in their wake, the enactment of the MSA, signal that the time has finally come for recognition of the Métis as a unique and distinct people.

71 I conclude that the MSA, while unique, is a genuinely ameliorative program. Provided that the means of implementation chosen by the legislature serves or advances this end, s. 15(2) protects the MSA against the charge of discrimination.

[page700]

3. Does the Distinction Serve or Advance the Object of the Ameliorative Program?

72 The object of the MSA is to benefit the members of a constitutionally identified and protected group by enhancing the identity, culture and self-governance of the group. In order to achieve this object, the legislature has excluded Métis who are also status Indians from membership in the settlement for purposes of establishing a Métis land base. The question is whether this distinction serves or advances its object.

73 In my view, the line drawn by the MSA between Métis and Métis who are also status Indians with respect to membership, serves and advances the object of the program. It is supported by historic distinctions between Métis and Indian culture; by the fact that, without the distinction, achieving the object of the program would be more difficult; and by the role of the Métis settlement in defining its membership.

74 Before discussing these matters in more detail, I note that the chambers judge concluded that exclusion of status Indians from membership in the Peavine Métis Settlement furthered the object of enhancing Métis culture, identity and governance. The Court of Appeal, while accepting that the MSA was a genuinely ameliorative program, overturned this finding on the basis there was "no evidence" that the exclusion would enhance those goals. In my view, the Court of Appeal erred in demanding positive proof that an impugned distinction will in the future have a particular impact. As Kapp makes clear, all the government need show is that it was "rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to [its ameliorative] purpose": Kapp, at para. 49.

[page701]

(a) The Program Recognizes the Historic Uniqueness of the Métis

75 The object of the MSA, as we have seen, is to promote Métis identity, culture and self-governance in recognition of their unique status - aboriginal, yet neither Indian nor Inuit. This object corresponds to historic differences between the Métis and Indians. Since their emergence as a distinct people on the Canadian prairies in the 1700s, the Métis have claimed an identity based on non-Indianness. They have persistently distinguished themselves as a people from the other dominant Aboriginal group in their territory - Indians. The obverse side of the struggle of the Métis to preserve their distinct identity and culture is the fear that overlap and confusion with the larger Indian cultures would put their identity and culture at risk. The right of the Métis to their own non-Indian culture is confirmed by the Constitution Act, 1982, s. 35. Line drawing on this basis, far from being irrational, simply reflects the Constitution and serves the legitimate expectations of the Métis.

76 The distinction in the MSA between Métis and status Indians conforms, in general terms, to the different identities and protections enjoyed by each group and recognized in the Constitution. It thus serves to enhance Métis identity and to further the goal of the ameliorative program. The fact that some people may identify as both Page31 16 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Métis and Indian does not negate the general correspondence underlying the distinction between the two groups.

(b) Realizing the Object of the Program

77 To accord membership in the MSA communities to Métis who are also status Indians would undermine the object of the program of enhancing Métis identity, culture and governance, and would potentially hollow out the goal of the MSA of preserving and enhancing a distinct Métis culture, identity and governance.

[page702]

78 Extending membership to significant numbers of people with Indian status may undercut the goals of preserving and enhancing the distinctive Métis culture, identity and self-governance into the future. To the extent that status Indians are members of Métis settlements, the distinctive Métis identity, with its historic emphasis on being distinct from Indian identity, would be compromised. And to the extent that status Indians are members of Métis settlements, the goal of self-governance is hampered. For example, Indians who already enjoy the right to hunt off- reserve may have little interest in promoting the right of Métis to hunt outside settlement lands. The same may be ventured for other benefits and privileges. Because the Indian Act provides a scheme of benefits to status Indians, ranging from medical care to housing to tax-free status, status Indian members of Métis settlements may have less interest in fighting for similar benefits than Métis without Indian status.

79 The exclusion of status Indians from membership in the new land-based Métis settlements was the product of a long period of consultation between the government and the Métis. According a measure of respect to this role serves and advances the object of the ameliorative program. It does not insulate the selection of beneficiaries from Charter review, to be sure, but it supports the connection between the object of the program and the means chosen to achieve it.

80 In R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, this Court was seized with the task of developing a test for identifying Métis aboriginal rights under s. 35 of the Constitution Act, 1982, and identifying the holders of such rights. We recognized that the term "Métis" used in s. 35 "refers to distinctive peoples who, in addition to their mixed [page703] ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears" (para. 10; see also para. 11). We further held that "[t]he inclusion of the Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing their survival as distinctive communities" (para. 13).

81 While this case is not about defining entitlement to s. 35 rights, it is about the identification of membership requirements for Métis settlements for the purpose of establishing a Métis land base. The Court's reasons in Powley suggest that Métis communities themselves have a significant role to play in this exercise. We wrote, at para. 29:

As Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights- holders can be identified.

82 The self-organization and standardization of the Métis community in Alberta is precisely what the Alberta legislature and the Alberta Métis have together sought to achieve in developing, agreeing upon and enacting the membership requirements found in the MSA and challenged here. The significant role that the Métis must play in defining settlement membership requirements does not mean that this exercise is exempt from Charter scrutiny. Nevertheless, it does suggest that the courts must approach the task of reviewing membership requirements with prudence and due regard to the Métis's own conception of the distinct features of their community.

Page32 17 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

(d) Conclusion: The Distinction Serves and Advances the Object of the Ameliorative Program

83 I conclude that the exclusion from membership in any Métis settlement, including the Peavine [page704] Settlement, of Métis who are also status Indians serves and advances the object of the ameliorative program. It corresponds to the historic and social distinction between the Métis and Indians, furthers realization of the object of enhancing Métis identity, culture and governance, and respects the role of the Métis in defining themselves as a people.

84 It follows that the distinction between Métis and status Indians in the MSA does not fall outside the protective reach of s. 15(2). Rather, the distinction is the type of targeted ameliorative program s. 15 was intended to allow legislatures to adopt. Section 15(2) applies, and the exclusion of the claimants from membership in a Métis settlement does not constitute discrimination.

85 The argument advanced by the claimants in favour of recognition of the multiple identities of many aboriginal individuals does not undermine this conclusion. The claimants argue that people - particularly Aboriginal people - may, for historical reasons, have multiple identities and that the law should respect those identities in all their complexity.

86 That people, including many Métis, include mixed ethnic and cultural strands in their particular individual identity is clear. However, this does not mean that every program must recognize everyone who holds some claim to a group targeted by an ameliorative program. Mixed identity is a recurrent theme in Canada's ongoing exercise of achieving reconciliation between its Aboriginal peoples and the broader population. It figures, for example, in land claims negotiations between particular Indian groups and the government. Residents of one Indian group frequently also identify themselves with other Indian groups for historical and cultural reasons. Yet lines must be drawn if agreements are to be achieved. The situation of Métis settlements is similar. In order to preserve the unique Métis culture and identity and to assure effective self-governance through a dedicated Métis land base, some line drawing will be required. It follows of necessity that not every person who is a Métis in [page705] the broad sense of having Indian-European ancestry and self-identifying with the Métis community, as discussed in Powley, may be entitled to the benefit of membership under the MSA.

87 The conclusion of this Court in Lovelace, per Iacobucci J., is apposite:

There are important differences among First Nations bands, Métis communities and non-band First Nations, and as stated by L'Heureux-Dubé J. in Corbiere, supra, at para. 94, "[t]aking into account, recognizing, and affirming differences between groups in a manner that respects and values their dignity and difference are not only legitimate, but necessary considerations in ensuring that substantive equality is present in Canadian society." [para. 90]

88 I conclude that the MSA is an ameliorative program protected by s. 15(2) of the Charter. It follows that the claimants' s. 15 claim must be dismissed.

V. The Freedom of Association Claim Under Section 2(d) of the Charter

89 Freedom of association is guaranteed by s. 2(d) of the Charter, which holds:

2. Everyone has the following fundamental freedoms:

...

(d) freedom of association.

Page33 18 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

90 The claimants assert that ss. 75 and 90 of the MSA, which prevent the reinstatement of their membership in the Peavine Métis Settlement, interfere with their freedom of association under s. 2(d) of the Charter.

[page706]

91 The record does not provide an adequate basis to assess the claimants' s. 2(d) argument. As noted by the Alberta Court of Appeal, at para. 57:

A substantial body of proof was not before the chambers judge on this issue and, more troubling, at the hearing before the chambers judge this issue was only argued in the most oblique terms.

I conclude that, on the record before us, no viable claim has been raised under s. 2(d) of the Charter.

VI. The Right to Liberty Claim Under Section 7 of the Charter

92 The claimants' right to reside on the Peavine settlement, though not eliminated, has been circumscribed. They could, in future, find themselves excluded from residence on the settlement. The claimants allege that this violates their right to liberty under s. 7 of the Charter, which provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

93 It is not clear that place of residence is a protected liberty interest under s. 7 of the Charter. In Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, La Forest J., writing for himself and two other members of the Court, suggested that it was, but the issue remains unsettled.

94 It is not necessary to decide whether place of residence is protected by s. 7 because, as found by the chambers judge, any impact on liberty has not been shown to be contrary to the principles of fundamental justice, as required for a s. 7 claim. The deprivation is neither arbitrary nor grossly disproportionate, for the reasons discussed in connection with the s. 15 claim. As the chambers judge put it, "[r]equiring aboriginal adults who might otherwise meet the definition of both Indian and Métis [page707] to choose which legislative scheme they wish to fall under - the Indian Act or the MSA - is not a requirement which is grossly disproportionate to the interest of Alberta in securing a land base for the Métis" (para. 130).

95 The s. 7 claim therefore fails.

VII. Conclusion

96 I would allow the appeal, set aside the decision of the Court of Appeal and affirm the decision of the chambers judge. The appellants have not sought their costs before this Court, so I would not award them. I would answer the constitutional questions as follows:

1. Do ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14, infringe s. 2(d) of the Canadian Charter of Rights and Freedoms? The record does not provide an adequate basis to assess the claimants' s. 2(d) argument and the Court therefore declines to answer this question. 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Page34 19 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

It is not necessary to answer this question. 3. Do ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14, infringe s. 7 of the Canadian Charter of Rights and Freedoms? No. 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified [page708] in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? It is not necessary to answer this question. 5. Do ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14, infringe s. 15 of the Canadian Charter of Rights and Freedoms? No. 6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedom s? It is not necessary to answer this question. Appeal allowed.

Solicitors:

Solicitor for the appellants: Attorney General of Alberta, Edmonton.

Solicitors for the respondents: Field, Edmonton.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Sainte-Foy.

Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.

Solicitors for the intervener the East Prairie Métis Settlement: Hajduk Gibbs, Edmonton.

Solicitors for the intervener the Elizabeth Métis Settlement: Owen Law, Edmonton.

Solicitors for the intervener the Métis Nation of Alberta: Pape Salter Teillet, Vancouver.

Solicitors for the intervener the Métis National Council: JTM Law, Toronto.

[page709]

Solicitors for the intervener the Métis Settlements General Council: Witten, Edmonton.

Solicitor for the intervener the Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.

Solicitor for the intervener the Women's Legal Education and Action Fund: Women's Legal Education and Action Fund, Toronto.

Solicitor for the intervener the Canadian Association for Community Living: ARCH Disability Law Centre, Toronto.

Page35 20 of 21 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670

Solicitors for the intervener the Gift Lake Métis Settlement: Field, Edmonton.

Solicitor for the intervener the Native Women's Association of Canada: Law Office of Mary Eberts, Toronto.

End of Document

Page36 21 of 21 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 Supreme Court Reports

Supreme Court of Canada Present: McLachlin C.J. and LeBel, Deschamps,* Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. Heard: December 13, 2011; Judgment: March 8, 2013. File No.: 33880. [2013] 1 S.C.R. 623 | [2013] 1 R.C.S. 623 | [2013] S.C.J. No. 14 | [2013] A.C.S. no 14 | 2013 SCC 14 Manitoba Metis 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, Appellants; v. Attorney General of Canada and Attorney General of Manitoba, Respondents, and Attorney General for Saskatchewan, Attorney General of Alberta, Métis National Council, Métis Nation of Alberta, Métis Nation of Ontario, Treaty One First Nations and Assembly of First Nations, Interveners.

(303 paras.)

Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Case Summary

Subsequent History: * Editor's Note: Deschamps J. took no part in the judgment.

Catchwords:

Aboriginal law — Métis — Crown law — Honour of the Crown — Canadian government agreeing in 1870 to grant Métis children shares of 1.4 million acres of land and to recognize existing Métis landholdings — Promises set out in ss. 31 and 32 of the Manitoba Act, 1870, a constitutional document — Errors and delays interfering with division and granting of land among eligible [page624] recipients — Whether Canada failing to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act, 1870.

Aboriginal law — Métis — Fiduciary duty — Canadian government agreeing in 1870 to grant Métis children shares of 1.4 million acres of land and to recognize existing Métis landholdings — Promises set out in ss. 31 and 32 of the Manitoba Act, 1870, a constitutional document — Errors and delays interfering with division and granting of land among eligible recipients — Whether Canada in breach of fiduciary duty to Métis.

Limitation of actions — Declaration — Appellants seeking declaration in the courts that Canada breached

37 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 obligations to implement promises made to the Métis people in the Manitoba Act, 1870 — Whether statute of limitations can prevent courts from issuing declarations on the constitutionality of Crown conduct — Whether claim for declaration barred by laches.

Civil procedure — Parties — Standing — Public interest standing — Manitoba Act, 1870, providing for individual land entitlements — Whether federation advancing collective claim on behalf of Métis people should be granted public interest standing.

Summary: After Confederation, the first government of Canada embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to settlement. Canada became the titular owner of Rupert's Land and the Red River Settlement; however, the French-speaking Roman Catholic Métis, the dominant demographic group in the Red River Settlement, viewed with alarm the prospect of Canadian control leading to a wave of English-speaking Protestant settlers that would threaten their traditional way of life. In the face of armed resistance, Canada had little choice but to adopt a diplomatic approach. The Red River settlers agreed to become part of Canada, and Canada agreed to grant 1.4 million acres of land to the Métis children (subsequently set out in s. 31 of the Manitoba Act) and to recognize existing landholdings (subsequently set out in s. 32 of the Manitoba Act). The Canadian government began the process of implementing s. 31 in early [page625] 1871. The land was set aside, but a series of errors and delays interfered with dividing the land among the eligible recipients. Initially, problems arose from errors in determining who had a right to a share of the land promised. As a result, two successive allotments were abandoned; the third and final allotment was not completed until 1880. The lands were distributed randomly to the eligible Métis children living within each parish. While the allotment process lagged, speculators began acquiring the Métis children's yet-to-be granted interests in the s. 31 lands, aided by a range of legal devices. During the 1870s and 1880s, Manitoba passed five statutes, now long spent and repealed, dealing with the technical requirements to transfer interests in s. 31 lands. Initially, Manitoba moved to curb speculation and improvident sales of the children's interests, but in 1877, it changed course, allowing sales of s. 31 entitlements. Eventually, it became apparent that the number of eligible Métis children had been underestimated. Rather than starting a fourth allotment, the Canadian government provided that remaining eligible children would be issued with scrip redeemable for land. The scrip was based on 1879 land prices; however, when the scrip was delivered in 1885, land prices had increased so that the excluded children could not acquire the same amount of land granted to other children. In the decades that followed, the position of the Métis in the Red River Settlement deteriorated. White settlers soon constituted a majority in the territory and the Métis community began to unravel. The Métis sought a declaration that (1) in implementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis; (2) the federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown; and (3) certain legislation passed by Manitoba affecting the implementation of the Manitoba Act was ultra vires. The trial judge dismissed the claim for a declaration on the ground that ss. 31 and 32 of the Manitoba Act gave rise to neither a fiduciary duty nor a duty based on the honour of the Crown. He also found that the challenged Manitoba [page626] statutes were constitutional, and, in any event, the claim was barred by limitations and the doctrine of laches. Finally, he found that the Manitoba Metis Federation Inc. ("MMF") should not be granted standing in the action, since the individual plaintiffs were capable of bringing the claims forward. A five-member panel of the Manitoba Court of Appeal dismissed the appeal. Held (Rothstein and Moldaver JJ. dissenting): The appeal should be allowed in part. The federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour Page38 2 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 of the Crown. Per McLachlin C.J. and LeBel, Fish, Abella, Cromwell and Karakatsanis JJ.: The MMF should be granted standing. The action advanced is a collective claim for declaratory relief for the purposes of reconciling the descendants of the Métis people of the Red River Valley and Canada. It merits allowing the body representing the collective Métis interest to come before the court. The obligations enshrined in ss. 31 and 32 of the Manitoba Act did not impose a fiduciary duty on the government. In the Aboriginal context, a fiduciary duty may arise in two ways. First, it may arise as a result of the Crown assuming discretionary control over specific Aboriginal interests. Where the Crown administers lands or property in which Aboriginal peoples have an interest, such a duty may arise if there is (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest. The interest must be a communal Aboriginal interest in land that is integral to the nature of the Métis distinctive community and their relationship to the land. It must be predicated on historic use and occupation, and cannot be established by treaty or by legislation. Second, and more generally, a fiduciary duty may arise if there is (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary; (2) a defined person or class of persons vulnerable to a fiduciary's control; and (3) a legal or substantial practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.

[page627]

Although the Crown undertook discretionary control of the administration of the land grants under ss. 31 and 32 of the Manitoba Act, the Métis are Aboriginal, and they had an interest in the land, the first test for fiduciary duty is not made out because neither the words of s. 31 nor the evidence establish a pre-existing communal Aboriginal interest held by the Métis. Their interests in land arose from their personal history, not their shared distinct Métis identity. Nor was a fiduciary duty established on the basis of an undertaking by the Crown. While s. 31 shows an intention to benefit the Métis children, it does not demonstrate an undertaking to act in their best interests, in priority to other legitimate concerns. Indeed, the discretion conferred by s. 31 to determine "such mode and on such conditions as to settlement and otherwise" belies a duty of loyalty and an intention to act in the best interests of the beneficiary, forsaking all other interests. Section 32 simply confirmed the continuance of different categories of landholdings in existence shortly before or at the creation of the new province. It did not constitute an undertaking on the part of the Crown to act as a fiduciary in settling the titles of the Métis landholders. However, the Métis are entitled to a declaration that the federal Crown failed to act with diligence in implementing the land grant provision set out in s. 31 of the Manitoba Act, in accordance with the honour of the Crown. The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Canadian sovereignty. Where this is at stake, it requires the Crown to act honourably in its dealings with the Aboriginal peoples in question. This flows from the guarantee of Aboriginal rights in s. 35(1) of the Constitution. The honour of the Crown is engaged by an explicit obligation to an Aboriginal group enshrined in the Constitution. The Constitution is not a mere statute; it is the very document by which the Crown asserted its sovereignty in the face of prior Aboriginal occupation. An explicit obligation to an Aboriginal group in the Constitution engages the honour of the Crown. The honour of the Crown speaks to how obligations that attract it must be fulfilled, so the duties that flow from it vary with the situation. In the context of the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that [page628] the Crown: (1) take a broad purposive approach to the interpretation of the promise; and (2) act diligently to fulfill it. The question is whether, viewing the Crown's conduct as a whole in the context of the case, it acted with diligence to pursue the fulfillment of the purposes of the obligation. The duty to act diligently is a narrow and circumscribed duty. Not every mistake or negligent act in implementing a constitutional obligation to an Aboriginal people brings dishonour to the Crown, and there is no guarantee that the purposes of the promise will be achieved. However, a persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown's duty to act honourably in fulfilling its promise. Page39 3 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Section 31 of the Manitoba Act is a solemn constitutional obligation to the Métis people of Manitoba, an Aboriginal people, and it engaged the honour of the Crown. Its immediate purpose was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis' Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. By contrast, s. 32 was a benefit made generally available to all settlers and did not engage the honour of the Crown. Although the honour of the Crown obliged the government to act with diligence to fulfill s. 31, it acted with persistent inattention and failed to act diligently to achieve the purposes of the s. 31 grant. This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade, substantially defeating a purpose of s. 31. This was inconsistent with the behaviour demanded by the honour of the Crown: a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better. None of the government's other failures -- failing to prevent Métis from selling their land to speculators, issuing scrip in place of land, and failing to cluster family allotments -- were in themselves inconsistent with the honour of the Crown. That said, the impact of these measures was exacerbated by the delay inconsistent with [page629] the honour of the Crown: it increased improvident sales to speculators; it meant that when the children received scrip, they obtained significantly less than the 240 acres provided to those who took part in the initial distribution, because the price of land had increased in the interim; and it made it more difficult for Métis to trade grants amongst themselves to achieve contiguous parcels. It is unnecessary to consider the constitutionality of the implementing statutes because they are moot. The Métis claim based on the honour of the Crown is not barred by the law of limitations. Although claims for personal remedies flowing from unconstitutional statutes may be time-barred, the Métis seek no personal relief and make no claim for damages or for land. Just as limitations acts cannot prevent the courts from issuing declarations on the constitutionality of legislation, limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown's conduct. So long as the constitutional grievance at issue here remains outstanding, the goals of reconciliation and constitutional harmony remain unachieved. In addition, many of the policy rationales underlying limitations statutes do not apply in an Aboriginal context. A declaration is a narrow remedy and, in some cases, may be the only way to give effect to the honour of the Crown. Nor is the claim barred by the equitable doctrine of laches. Given the context of this case, including the historical injustices suffered by the Métis, the imbalance in power that followed Crown sovereignty, and the negative consequences following delays in allocating the land grants, delay on the part of the appellants cannot, by itself, be interpreted as some clear act which amounts to acquiescence or waiver. It is rather unrealistic to suggest that the Métis sat on their rights before the courts were prepared to recognize those rights. Furthermore, Canada has not changed its position as a result of the delay. This suffices to find that the claim is not barred by laches. However, it is difficult to see how a court, in its role as guardian of the Constitution, could apply an equitable doctrine to defeat a claim for a declaration that a Constitutional provision has not been fulfilled as required by the honour of the Crown.

[page630]

Per Rothstein and Moldaver JJ. (dissenting): There is agreement with the majority that there was no fiduciary duty here, that no valid claims arise from s. 32 of the Manitoba Act, that any claims that might have arisen from the now repealed Manitoba legislation on the land grants are moot, that the random allocation of land grants was an acceptable means for Canada to implement the s. 31 land grants, and that the MMF has standing to bring these claims. However, the majority proposes a new common law constitutional obligation derived from the honour of the Crown. The courts below did not consider this issue and the parties did not argue it before this Court. This is an unpredictable expansion of the scope of the duties engaged under the honour of the Crown. The claim based on the honour of the Crown is also barred by both limitations periods Page40 4 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 and laches. While a duty of diligent fulfillment may well prove to be an appropriate expansion of Crown obligations, and while a faster process would most certainly have been better, the duty crafted by the majority creates an unclear rule that is unconstrained by laches or limitation periods and immune from legislative redress, making the extent and consequences of the Crown's new obligations impossible to predict. It is not clear when an obligation rises to the "solemn" level that triggers the duty, what types of legal documents will give rise to solemn obligations, whether an obligation with a treaty-like character imposes higher obligations than other constitutional provisions, and whether it is sufficient for the obligation to be owed to an Aboriginal group. The idea that how the government is obliged to perform a constitutional obligation depends on how closely it resembles a treaty should be rejected. It would be a significant expansion of Crown liability to permit a claimant to seek relief so long as the promise was made to an Aboriginal group, without proof of an Aboriginal interest sufficient to ground a fiduciary duty, and based on actions that would not constitute a breach of fiduciary duty. Even if the honour of the Crown was engaged and required the diligent implementation of s. 31, and even if this duty was not fulfilled, any claims arising from such a cause of action have long been barred by statutes of limitations and the equitable doctrine of laches. [page631] Limitations and laches cannot fulfill their purposes if they are not universally applicable. Limitations periods apply to the government as they do to all other litigants both generally and in the area of Aboriginal claims. This benefits the legal system by creating certainty and predictability, and serves to protect society at large by ensuring that claims against the Crown are made in a timely fashion so that the Crown is able to defend itself adequately. Limitations periods have existed in Manitoba continuously since 1870, and, since 1931, Manitoba limitations legislation has provided a six-year limitation period for all causes of action, whether the cause of action arose before or after the legislation came into force. Manitoba has a 30-year ultimate limitation period. The Crown is entitled to the benefit of those limitations periods. The policy rationales underlying limitations periods do not support the creation of an exemption from those periods in this case. Manitoba legislation does not contain an exception from limitations periods for declaratory judgments and no such exception should be judicially created. In this case, the risk that a declaratory judgment will lead to additional remedies is fully realized: the Métis plan to use the declaration in extra-judicial negotiations with the Crown, so the declaration exposes the Crown to an obligation long after the time when the limitations period expired. Moreover, this Court has never recognized a general exception from limitations for constitutionally derived claims. Rather, it has consistently held that limitations periods apply to factual claims with constitutional elements. While limitations periods do not apply to prevent a court from declaring a statute unconstitutional, the Métis' claim about unconstitutional statutes is moot. The remaining declaration sought concerns factual issues and alleged breaches of obligations which have always been subject to limitation periods. In suggesting that the goal of reconciliation must be given priority in the Aboriginal context, it appears that the majority has departed from the principle that the same policy rationales that support limitations generally should apply to Aboriginal claims. These claims are also subject to laches. Laches can be used to defend against equitable claims that have [page632] not been brought in a sufficiently timely manner, and as breaches of fiduciary duty can be subject to laches, it would be fundamentally inconsistent to permit certain claims based on the honour of the Crown to escape the imputation of laches. Both branches of laches are satisfied: the Métis have knowingly delayed their claim by over a hundred years and in so doing have acquiesced to the circumstances and invited the government to rely on that, rendering the prosecution of this action unreasonable. As to acquiescence, the trial judge found that the Métis had the required knowledge in the 1870s, and that finding has not been shown to be an error. The suggestion that it is "unrealistic" to expect someone to have enforced their claim before the courts were prepared to recognize those rights is fundamentally at odds with the common law approach to changes in the law. Delay in making the grants cannot be both the wrong alleged and the reason the Crown cannot access the defence of laches: laches are always invoked as a defence by a party alleged to have wronged the plaintiff. If assessing conscionability is reduced to determining if the plaintiff has proven the allegations, the defence of laches is rendered illusory. The imbalance in power between the Métis and the government did not undermine their knowledge, capacity or freedom to the extent required to prevent a finding Page41 5 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

of acquiescence. The inference that delays in the land grants caused the vulnerability of the Métis was neither made by the trial judge nor supported by the record. In any event, laches are imputed against vulnerable people just as limitations periods are applied against them. As to reliance, had the claim been brought promptly, the unexplained delays referred to as evidence for the Crown acting dishonourably may well have been accounted for, or the government might have been able to take steps to satisfy the Métis community. Finally, while not doing so explicitly, the majority departs from the factual findings of the trial judge, absent a finding of palpable and overriding error, in two main areas: (1) the extent of the delay in distributing the land, and (2) the effect of that delay on the Métis. Manifestly, the trial judge made findings of delay. Nonetheless these findings and the evidence do not reveal a pattern of inattention, a lack of diligence, or that the purposes of the land grant were frustrated. That alone would nullify any claim the Métis might have based on a breach of duty [page633] derived from the honour of the Crown, assuming that any such duty exists.

Cases Cited

By McLachlin C.J. and Karakatsanis J.

Applied: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; referred to: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Badger, [1996] 1 S.C.R. 771; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; R. v. Sparrow, [1990] 1 S.C.R. 1075; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Sundown, [1999] 1 S.C.R. 393; Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. Marshall, [1999] 3 S.C.R. 456; The Case of The Churchwardens of St. Saviour in Southwark (1613), 10 Co. Rep. 66b, 77 E.R. 1025; Roger Earl of Rutland's Case (1608), 8 Co. Rep. 55a, 77 E.R. 555; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Canadian Bar Assn. v. British Columbia, 2006 BCSC 1342, 59 B.C.L.R. (4) 38; Waddell v. Schreyer (1981), 126 D.L.R. (3d) 431, aff'd (1982), 142 D.L.R. (3d) 177, leave to appeal refused, [1982] 2 S.C.R. vii (sub nom. Foothills Pipe Lines (Yukon) Ltd. v. Waddell); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Novak v. Bond, [1999] 1 S.C.R. 808; Cheslatta [page634] Carrier Nation v. British Columbia, 2000 BCCA 539, 193 D.L.R. (4) 344; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612; Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327; Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032.

By Rothstein J. (dissenting)

Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Watkins v. Olafson, [1989] 2 S.C.R. 750; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, Page42 6 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

[2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Riddlesbarger v. Hartford Insurance Co., 74 U.S. (7 Wall.) 386 (1868); United States v. Marion, 404 U.S. 307 (1971); Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] 1 Q.B. 858; Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372; Ultramares Corp. v. Touche, 174 N.E. 441 (1931); Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737; Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221; In re Spectrum Plus Ltd. (in liquidation), [2005] UKHL 41, [2005] 2 A.C. 680; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Barber v. Proudfoot, [1890-91] 1 W.L.T.R. 144; Hardy v. Desjarlais (1892), 8 Man. R. 550; Robinson v. Sutherland (1893), 9 Man. R. 199; City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney-General of Manitoba, [1895] A.C. 202; Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327.

Statutes and Regulations Cited

Act relating to the Titles of Half-Breed Lands, S.M. 1885, c. 30.

Act to amend the Act passed in the 37 year of Her Majesty's reign, entitled "The Half-Breed Land Grant Protection Act", S.M. 1877, c. 5.

Act to Amend The Limitation of Actions Act, S.M. 1980, c. 28, s. 3.

Act to enable certain children of Half-breed heads of families to convey their land, S.M. 1878, c. 20.

[page635]

Constitution Act, 1867.

Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 [reprinted in R.S.C. 1985, App. II, No. 11].

Constitution Act, 1982, s. 35.

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 32.

Half-Breed Land Grant Protection Act, S.M. 1873, c. 44, preamble.

Half-Breed Lands Act, R.S.M. 1891, c. 67.

Limitation Act, S.B.C. 2012, c. 13, s. 2 [not yet in force].

Limitation of Actions Act, C.C.S.M. c. L150, ss. 2(1)(k), 7, 14(4).

Limitation of Actions Act, R.S.M. 1970, c. L150.

Limitation of Actions Act, 1931, R.S.M. 1940, c. 121.

Limitation of Actions Act, 1931, S.M. 1931, c. 30, ss. 3(1)(i), (l), 6, 42.

Limitations Act, R.S.A. 2000, c. L-12, ss. 1(i)(i), 13.

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 2, 10(2), 16(1)(a), 24.

Page43 7 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1985, App. II, No. 8], ss. 31, 32.

Royal Proclamation (1763) [reprinted in R.S.C. 1985, App. II, No. 1].

Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105 [reprinted in R.S.C. 1985, App. II, No. 6].

Statute Law Revision and Statute Law Amendment Act, 1969, S.M. 1969 (2 Sess.), c. 34, s. 31.

Authors Cited

Halsbury's Laws of England, 4 ed. (reissue), vol. 16(2). London: LexisNexis UK, 2003.

Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability of the Crown, 4 ed. Toronto: Carswell, 2011.

Manitoba. Law Reform Commission. Limitations. Winnipeg: The Commission, 2010.

Meagher, R. P., W. M. C. Gummow and J. R. F. Lehane. Equity Doctrines and Remedies, 2 ed. Sydney: Butterworths, 1984.

Ontario. Limitations Act Consultation Group. Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group. Toronto: Ministry of the Attorney General, 1991.

Rotman, Leonard I. "Wewaykum: A New Spin on the Crown's Fiduciary Obligations to Aboriginal Peoples?" (2004), 37 U.B.C. L. Rev. 219.

Schachter, Harley. "Selected Current Issues in Aboriginal Rights Cases: Evidence, Limitations and Fiduciary Obligations", in The 2001 Isaac Pitblado [page636] Lectures: Practising Law In An Aboriginal Reality. Winnipeg: Law Society of Manitoba, 2001, 203.

Slattery, Brian. "Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 433.

Slattery, Brian. "Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 727.

History and Disposition: APPEAL from a judgment of the Manitoba Court of Appeal (Scott C.J.M. and Monnin, Steel, Hamilton and Freedman JJ.A.), 2010 MBCA 71, 255 Man. R. (2d) 167, 486 W.A.C. 167, [2010] 12 W.W.R. 599, [2010] 3 C.N.L.R. 233, 216 C.R.R. (2d) 144, 94 R.P.R. (4) 161, [2010] M.J. No. 219 (QL), 2010 CarswellMan 322, affirming a decision of MacInnes J., 2007 MBQB 293, 223 Man. R. (2d) 42, [2008] 4 W.W.R. 402, [2008] 2 C.N.L.R. 52, [2007] M.J. No. 448 (QL), 2007 CarswellMan 500. Appeal allowed in part, Rothstein and Moldaver JJ. dissenting.

Counsel

Thomas R. Berger, Q.C., James Aldridge, Q.C., Harley Schachter and Guylaine Grenier, for the appellants.

Page44 8 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Mark Kindrachuk, Q.C., Mitchell R. Taylor, Q.C., and Sharlene Telles-Langdon, for the respondent the Attorney General of Canada.

Heather Leonoff, Q.C., and Michael Conner, for the respondent the Attorney General of Manitoba.

P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.

Written submissions only by Douglas B. Titosky, for the intervener the Attorney General of Alberta.

Clement Chartier, Q.C., and Marc LeClair, for the intervener the Métis National Council.

Jason Taylor Madden, for the intervener the Métis Nation of Alberta.

Jean Teillet and Arthur Pape, for the intervener the Métis Nation of Ontario.

Jeffrey R. W. Rath, for the intervener the Treaty One First Nations.

[page637]

Written submissions only by Joseph J. Arvay, Q.C., David C. Nahwegahbow and Bruce Elwood, for the intervener the Assembly of First Nations.

The judgment of McLachlin C.J. and LeBel, Fish, Abella, Cromwell and Karakatsanis JJ. was delivered by

McLACHLIN C.J. and KARAKATSANIS J.

I. Overview

1 Canada is a young nation with ancient roots. The country was born in 1867, by the consensual union of three colonies - United Canada (now Ontario and Quebec), Nova Scotia and New Brunswick. Left unsettled was whether the new nation would be expanded to include the vast territories to the west, stretching from modern Manitoba to British Columbia. The Canadian government, led by Prime Minister John A. Macdonald, embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to settlement.

2 This meant dealing with the indigenous peoples who were living in the western territories. On the prairies, these consisted mainly of two groups - the First Nations, and the descendants of unions between white traders and explorers and Aboriginal women, now known as Métis.

3 The government policy regarding the First Nations was to enter into treaties with the various bands, whereby they agreed to settlement of their lands in exchange for reservations of land and other promises.

4 The government policy with respect to the Métis population - which, in 1870, comprised 85 percent of the population of what is now Manitoba - was less clear. Settlers began pouring into the region, displacing the Métis' social and political [page638] control. This led to resistance and conflict. To resolve the conflict and assure peaceful annexation of the territory, the Canadian government entered into negotiations with representatives of the Métis-led provisional government of the territory. The result was the Manitoba Act, 1870, S.C. 1870, c. 3 ("Manitoba Act"), which made Manitoba a province of Canada.

Page45 9 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

5 This appeal is about obligations to the Métis people enshrined in the Manitoba Act, a constitutional document. These promises represent the terms under which the Métis people agreed to surrender their claims to govern themselves and their territory, and become part of the new nation of Canada. These promises were directed at enabling the Métis people and their descendants to obtain a lasting place in the new province. Sadly, the expectations of the Métis were not fulfilled, and they scattered in the face of the settlement that marked the ensuing decades.

6 Now, over a century later, the descendants of the Métis people seek a declaration in the courts that Canada breached its obligation to implement the promises it made to the Métis people in the Manitoba Act.

7 More particularly, the appellants seek a declaration that (1) in implementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis; (2) the federal Crown failed to implement the Manitoba Act in a manner consistent with the honour of the Crown; and (3) certain legislation passed by Manitoba affecting the implementation of the Manitoba Act was ultra vires.

8 It is not disputed that there was considerable delay in implementing the constitutional provisions. The main issues are (1) whether Canada failed to act in accordance with its legal obligations, and (2) whether the Métis' claim is too late and thus barred by the doctrine of laches or by any [page639] limitations law, be it the English limitations law in force at the time the claims arose, or the subsequent limitations acts enacted by Manitoba: The Limitation of Actions Act, 1931, S.M. 1931, c. 30; The Limitation of Actions Act, 1931, R.S.M. 1940, c. 121; The Limitation of Actions Act, R.S.M. 1970, c. L150; collectively referred to as "The Limitation of Actions Act".

9 We conclude that s. 31 of the Manitoba Act constitutes a constitutional obligation to the Métis people of Manitoba, an Aboriginal people, to provide the Métis children with allotments of land. The immediate purpose of the obligation was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis' Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. The obligation enshrined in s. 31 of the Manitoba Act did not impose a fiduciary or trust duty on the government. However, as a solemn constitutional obligation to the Métis people of Manitoba aimed at reconciling their Aboriginal interests with sovereignty, it engaged the honour of the Crown. This required the government to act with diligence in pursuit of the fulfillment of the promise. On the findings of the trial judge, the Crown failed to do so and the obligation to the Métis children remained largely unfulfilled. The Métis claim based on the honour of the Crown is not barred by the law of limitations or the equitable doctrine of laches. We therefore conclude that the Métis are entitled to a declaration that Canada failed to implement s. 31 as required by the honour of the Crown.

[page640]

10 We agree with the courts below that the s. 32 claim is not established, and find it unnecessary to consider the constitutionality of the implementing statutes.

II. The Constitutional Promises and the Legislation

11 Section 31 of the Manitoba Act, known as the children's grant, set aside 1.4 million acres of land to be given to Métis children:

31. And whereas, it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the Page46 10 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.

12 Section 32 of the Manitoba Act provided for recognition of existing landholdings, where individuals asserting ownership had not yet been granted title:

32. For the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them, it is enacted as follows:- (1) All grants of land in freehold made by the Hudson's Bay Company up to the eighth day of March, in the year 1869, shall, if required by the owner, be confirmed by grant from the Crown. (2) All grants of estates less than freehold in land made by the Hudson's Bay Company up to the eighth day of March aforesaid, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.

[page641]

(3) All titles by occupancy with the sanction and under the license and authority of the Hudson's Bay Company up to the eighth day of March aforesaid, of land in that part of the Province in which the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. (4) All persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council. (5) The Lieutenant-Governor is hereby authorized, under regulations to be made from time to time by the Governor General in Council, to make all such provisions for ascertaining and adjusting, on fair and equitable terms, the rights of Common, and rights of cutting Hay held and enjoyed by the settlers in the Province, and for the commutation of the same by grants of land from the Crown.

13 During the 1870s and 1880s, Manitoba passed five statutes, now long spent and repealed, dealing with the technical requirements to transfer interests in s. 31 lands. The appellants seek to have the statutes declared ultra vires pursuant to the Constitution Act, 1867. Alternatively, they argue that the statutes were inoperative by virtue of federal paramountcy.

III. Judicial Decisions

14 The trial judge, MacInnes J. (as he then was), engaged in a thorough review of the facts: 2007 MBQB 293, 223 Man. R. (2d) 42. He found that while dishonesty and bad faith were not established, government error and inaction led to lengthy delay in implementing ss. 31 and 32, and left 993 Métis children who were entitled to a grant with scrip instead of land. However, he dismissed the claim for a declaration on the ground that ss. 31 and 32 of the Manitoba Act gave rise to neither a fiduciary duty nor a duty based on the honour of the Crown. [page642] The trial judge took the view that a fiduciary duty required proof that the Aboriginal people held the land collectively prior to 1870. Since the evidence established only individual landholdings by the Métis, their claim was "fundamentally flawed". He said of the action that "[i]t seeks relief that is in essence of a collective nature, but is underpinned by a factual reality that is individual": para. 1197.

15 The trial judge concluded that, in any event, the claim was barred by The Limitation of Actions Act and the doctrine of laches. He also found that Manitoba's various legislative initiatives regarding the land grants were constitutional. Finally, he held that the Manitoba Metis Federation Inc. ("MMF") should not be granted standing in the action, since the individual plaintiffs were capable of bringing the claims forward. Page47 11 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

16 A five-member panel of the Manitoba Court of Appeal, per Scott C.J.M., dismissed the appeal: 2010 MBCA 71, 255 Man. R. (2d) 167. It rejected the trial judge's view that collective Aboriginal title to land was essential to a claim that the Crown owed a fiduciary duty to Aboriginal peoples. However, the court found it unnecessary to determine whether the Crown in fact owed a fiduciary duty to the Métis, since the trial judge's findings of fact concerning the conduct of the Crown did not support any breach of such a duty.

17 The Court of Appeal also rejected the assertion that the honour of the Crown had been breached. The honour of the Crown, in its view, was [page643] subsidiary to the fiduciary claim and did not itself give rise to an independent duty in this situation.

18 Finally, the court held that the Métis' claim for a declaration was, in any event, statute-barred, and that the issue of the constitutional validity of the Manitoba legislation was moot. It also declined to interfere with the trial judge's discretionary decision to deny standing to the MMF.

IV. Facts

19 This appeal concerns events that occurred over a century ago. Despite the difficulties imposed by the lack of live witnesses and distant texts, the trial judge made careful and complete findings of fact on all the elements relevant to the legal issues. The Court of Appeal thoroughly reviewed these findings and, with limited exceptions, confirmed them.

20 The completeness of these findings, which stand largely unchallenged, make it unnecessary to provide a detailed narrative of the Métis people, the Red River Settlement, and the conflict that gave rise to the Manitoba Act and Manitoba's entry into Canada - events that have inspired countless tomes and indeed, an opera. We content ourselves with a brief description of the origins of the Red River Settlement and the events that give rise to the appellants' claims.

21 The story begins with the Aboriginal peoples who inhabited what is now the province of Manitoba - the Cree and other less populous nations. In the late 17th century, European adventurers and explorers passed through. The lands were claimed nominally by England which granted the Hudson's Bay Company, a company of fur traders operating out of London, control over a vast territory called Rupert's Land, which included modern Manitoba. Aboriginal peoples continued to occupy the territory. In addition to the original First Nations, a new Aboriginal group, the Métis, arose - people [page644] descended from early unions between European adventurers and traders, and Aboriginal women. In the early days, the descendants of English-speaking parents were referred to as half-breeds, while those with French roots were called Métis.

22 A large - by the standards of the time - settlement developed the forks of the Red and Assiniboine Rivers on land granted to Lord Selkirk by the Hudson's Bay Company in 1811. By 1869, the settlement consisted of 12,000 people, under the governance of the Hudson's Bay Company.

23 In 1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centred on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg. The Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government.

24 In the meantime, Upper Canada (now Ontario), Lower Canada (now Quebec), Nova Scotia and New Brunswick united under the British North America Act of 1867 (now Constitution Act, 1867) to become the new country of Canada. The country's first government, led by Sir John A. Macdonald, was intent on westward expansion, driven by the dream of a nation that would extend from the Atlantic to the Pacific and provide vast new lands for settlement. England agreed to cede Rupert's Land to Canada. In recognition of the Hudson's Bay Company's interest, Canada paid it GBP300,000 and allowed it to retain some of the land around its trading posts in the

Page48 12 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Northwest. In 1868, the Imperial Parliament cemented the deal with Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105.

[page645]

25 Canada, as successor to the Hudson's Bay Company, became the titular owner of Rupert's Land and the Red River Settlement. However, the reality on the ground was more complex. The French-speaking Roman Catholic Métis viewed with alarm the prospect of Canadian control leading to a wave of English-speaking Protestant settlers that would threaten their traditional way of life. When two survey parties arrived in 1869 to take stock of the land, the matter came to a head.

26 The surveyors were met with armed resistance, led by a French-speaking Métis, Louis Riel. On November 2, 1869, Canada's proposed Lieutenant Governor of the new territory, William McDougall, was turned back by a mounted French Métis patrol. On the same day, a group of Métis, including Riel, seized Upper Fort Garry (now downtown Winnipeg), the Settlement's principle fortification. Riel called together 12 representatives of the English- speaking parishes and 12 representatives of the French-speaking Métis parishes, known as the "Convention of 24". At their second meeting, he announced the French Métis intended to form a provisional government, and asked for the support of the English. The English representatives asked for time to confer with the people of their parishes. The meeting was adjourned until December 1, 1869.

27 When the meeting reconvened, they were confronted with a proclamation made earlier that day by McDougall that the region was under the control of Canada. The group rejected the claim. The French Métis drafted a list of demands that Canada must satisfy before the Red River settlers would accept Canadian control.

28 The Canadian government adopted a conciliatory course. It invited a delegation of "at least two residents" to Ottawa to present the demands of the settlers and confer with Parliament. The provisional government responded by delegating [page646] a priest, Father Ritchot, a judge, Judge Black, and a local businessman named Alfred Scott to go to Ottawa. The delegates - none of whom were Métis, although Riel nominated them - set out for Ottawa on March 24, 1870.

29 Canada had little choice but to adopt a diplomatic approach to the Red River settlers. As MacInnes J. found at trial:

Canada had no authority to send troops to the Settlement to quell the French Métis insurrection. Nor did it have the necessary troops. Moreover, given the time of year, there was no access to the Settlement other than through the United States. But, at the time, there was a concern in Canada about possible annexation of the territory by the United States and hence a reluctance on the part of Canada to seek permission from the United States to send troops across its territory to quell the insurrection and restore authority. [para. 78]

30 The delegates arrived in Ottawa on April 11, 1870. They met and negotiated with Prime Minister Macdonald and the Minister of Militia and Defence, George-Étienne Cartier. The negotiations were part of a larger set of negotiations on the terms on which Manitoba would enter Canada as a province. It emerged that Canada wanted to retain ownership of public lands in the new province. This led to the idea of providing land for Métis children. The parties settled on a grant to Métis children of 1.4 million acres of land (s. 31) and recognition of existing landholdings (s. 32). Parliament, after vigorous debate and the failure of a motion to delete the section providing the children's grant, passed the Manitoba Act on May 10, 1870.

31 The delegates returned to the Red River Settlement with the proposal, and, on June 24, 1870, Father Ritchot addressed the Convention of 40, now called the Legislative Assembly of Assiniboia, to [page647] advocate for the adoption of the Manitoba Act. The Assembly was read a letter from Minister Cartier which promised that any existing land interest contemplated in s. 32 of the Manitoba Act could be converted to title without payment. Minister Cartier guaranteed that the s. 31 children's grants would "be of a nature to meet the wishes of the half-breed Page49 13 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 residents" and the division of grant land would be done "in the most effectual and equitable manner": A.R., vol. XI, at p. 196 (emphasis added). On this basis, the Assembly voted to accept the Manitoba Act, and enter the Dominion of Canada. Manitoba became part of Canada by Order in Council of the Imperial government effective July 15, 1870.

32 The Canadian government began the process of implementing s. 31 in early 1871. The first step was to set aside 1.4 million acres, and the second was to divide the land among the eligible recipients. A series of errors and delays interfered with accomplishing the second step in the "effectual" manner Minister Cartier had promised.

33 The first problem was the erroneous inclusion of all Métis, including heads of families, in the allotment, contrary to the terms of s. 31, which clearly provided the lands were to be divided among the children of the Métis heads of families. On March 1, 1871, Parliament passed an Order in Council declaring that all Métis had a right to a share in the 1.4 million acres promised in s. 31 of the Manitoba Act. This order, which would have created more grants of smaller acreage, was made over the objections raised by McDougall, then the former Lieutenant Governor of Rupert's Land, in the House of Commons. Nevertheless, the federal government began planning townships based on 140-acre lots, dividing the 1.4 million acres among approximately 10,000 recipients. This was the first allotment.

[page648]

34 In 1873, the federal government changed its position, and decided that only Métis children would be entitled to s. 31 grants. The government also decided that lands traditionally used for haying by the Red River settlers could not be used to satisfy the children's land grant, as was originally planned, requiring additional land to be set aside to constitute the 1.4 million acres. The 1873 decision was clearly the correct decision. The problem is that it took the government over three years to arrive at that position. This gave rise to the second allotment.

35 In November 1873, the government of Sir John A. Macdonald was defeated and a new Liberal government formed in early 1874. The new government, without explanation, did not move forward on the allotments until early 1875. The Liberal government finally, after questions in Parliament about the delay and petitions from several parishes, appointed John Machar and Matthew Ryan to verify claimants entitled to the s. 31 grants. The process of verifying those entitled to grants commenced five years after the Manitoba Act was passed.

36 The next set of problems concerned the Machar/Ryan Commission's estimate of the number of eligible Métis children. Though a census taken in 1870 estimated 7,000 Métis children, Machar and Ryan concluded the number was lower, at 5,088, which was eventually rounded up to 5,833 to allow for even 240-acre plots. This necessitated a third and final allotment, which began in 1876, but was not completed until 1880.

37 While the allotment process lagged, speculators began acquiring the Métis children's yet-to-be granted interests in the s. 31 lands, aided by a range of legal devices. Initially, the Manitoba legislature moved to block sales of the children's interests to speculators, but, in 1877, it passed legislation [page649] authorizing sales of s. 31 interests once the child obtained the age of majority, whether or not the child had received his or her allotment, or even knew of its location. In 1878, Manitoba adopted further legislation which allowed children between 18 and 21 to sell their interests, so long as the transaction was approved by a judicial officer and the child's parents. Dr. Thomas Flanagan, an expert who testified at trial, found returns on judicial sales were the poorest of any type of s. 31 sale: C.A., at para. 152.

38 Eventually, it became apparent that the Acting Agent of Dominion Lands, Donald Codd had underestimated the number of eligible Métis children - 993 more Métis children were entitled to land than Codd had counted on. In 1885, rather than start the allotment yet a fourth time, the Canadian government provided by Order in Council that the children for whom there was no land would be issued with $240 worth of scrip redeemable for land. Fifteen years after the passage of the Manitoba Act, the process was finally complete.

39 The position of the Métis in the Red River Settlement deteriorated in the decades following Manitoba's entry into Page50 14 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Confederation. White settlers soon constituted a majority in the territory and the Métis community began to unravel. Many Métis sold their promised interests in land and moved further west. Those left amounted to a small remnant of the original community.

V. Issues

40 The appellants seek numerous declarations, including: (1) in implementing the Manitoba Act, the federal Crown breached fiduciary obligations owed to the Métis; (2) the federal Crown failed to implement the Manitoba Act in a manner [page650] consistent with the honour of the Crown; and (3) certain legislation passed by Manitoba affecting the implementation of the Manitoba Act was ultra vires. These claims give rise to the following issues:

A. Does the Manitoba Metis Federation have standing in the action? B. Is Canada in breach of a fiduciary duty to the Métis? C. Did Canada fail to comply with the honour of the Crown in the implementation of ss. 31 and 32 of the Manitoba Act? D. Were the Manitoba statutes related to implementation unconstitutional? E. Is the claim for a declaration barred by limitations? F. Is the claim for a declaration barred by laches? VI. Discussion A. Does the Manitoba Metis Federation Have Standing in the Action?

41 Canada and Manitoba take no issue with the private interest standing of the individual appellants. However, they argue that the MMF has no private interest in the litigation and fails the established test for public interest standing on the third step of the test set out in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, as the individual plaintiffs clearly demonstrate another reasonable and effective manner for the case to be heard.

[page651]

42 The courts below denied the MMF public interest standing to bring this action. At trial, MacInnes J. found that the MMF would fail the third step of the test set out in Canadian Council of Churches, on the ground that the individual plaintiffs demonstrate another reasonable and effective manner for the case to be heard. The Court of Appeal declined to interfere with MacInnes J.'s discretionary standing ruling.

43 The courts below did not have the benefit of this Court's decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. In that case, the Court rejected a strict approach to the third requirement for standing. The presence of other claimants does not necessarily preclude public interest standing; the question is whether this litigation is a reasonable and effective means to bring a challenge to court. The requirements for public interest standing should be addressed in a flexible and generous manner, and considered in light of the underlying purposes of setting limits on who has standing to bring an action before a court. Even if there are other plaintiffs with a direct interest in the issue, a court may consider whether the public interest plaintiff will bring any particularly useful or distinct perspective to the resolution of the issue at hand.

44 As discussed below, the action advanced is not a series of claims for individual relief. It is rather a collective claim for declaratory relief for the purposes of reconciliation between the descendants of the Métis people of the Red River Valley and Canada. The Manitoba Act provided for individual entitlements, to be sure. But that does not negate the fact that the appellants advance a collective claim of the Métis people, based on a promise made to Page51 15 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 them in return for their agreement to recognize Canada's sovereignty over them. This collective claim merits allowing the body representing the collective Métis [page652] interest to come before the Court. We would grant the MMF standing.

45 For convenience, from this point forward in these reasons, we will refer to both the individual plaintiffs and the MMF collectively as "the Métis".

B. Is Canada in Breach of a Fiduciary Duty to the Métis? (1) When a Fiduciary Duty May Arise

46 The Métis say that Canada owed them a fiduciary duty to implement ss. 31 and 32 of the Manitoba Act as their trustee. This duty, they say, arose out of their Aboriginal interest in lands in Manitoba, or directly from the promises made in ss. 31 and 32.

47 Fiduciary duty is an equitable doctrine originating in trust. Generally speaking, a fiduciary is required to act in the best interests of the person on whose behalf he is acting, to avoid all conflicts of interest, and to strictly account for all property held or administered on behalf of that person. See Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, at pp. 646-47.

48 The relationship between the Métis and the Crown, viewed generally, is fiduciary in nature. However, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations.

49 In the Aboriginal context, a fiduciary duty may arise as a result of the "Crown [assuming] discretionary control over specific Aboriginal interests": Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18. The focus is on the particular interest that [page653] is the subject matter of the dispute: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 83. The content of the Crown's fiduciary duty towards Aboriginal peoples varies with the nature and importance of the interest sought to be protected: Wewaykum, at para. 86.

50 A fiduciary duty may also arise from an undertaking, if the following conditions are met:

(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.

(Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36)

(2) Did the Métis Have a Specific Aboriginal Interest in the Land Giving Rise to a Fiduciary Duty?

51 As discussed, the first way a fiduciary duty may arise is where the Crown administers lands or property in which Aboriginal peoples have an interest: Guerin v. The Queen, [1984] 2 S.C.R. 335, at p. 384. The duty arises if there is (1) a specific or cognizable Aboriginal interest, and (2) a Crown undertaking of discretionary control over that interest: Wewaykum, at paras. 79-83; Haida Nation, at para. 18.

52 There is little dispute that the Crown undertook discretionary control of the administration of the land grants under ss. 31 and 32 of the Manitoba Act, meeting the second requirement. The issue is whether the first condition is met - is there a "specific or cognizable Aboriginal interest"? The trial judge held that the Métis failed to establish a specific, cognizable interest in land. The Court of Appeal found it unnecessary to decide the point, in [page654] view of its conclusion that in any event, no breach was established. Page52 16 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

53 The fact that the Métis are Aboriginal and had an interest in the land is not sufficient to establish an Aboriginal interest in land. The interest (title or some other interest) must be distinctly Aboriginal; it must be a communal Aboriginal interest in the land that is integral to the nature of the Métis distinctive community and their relationship to the land: see R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, at para. 37. The key issue is thus whether the Métis as a collective had a specific or cognizable Aboriginal interest in the ss. 31 or 32 land.

54 The Métis argue that s. 31 of the Manitoba Act confirms that they held a pre-existing specific Aboriginal interest in the land designated by s. 31. Section 31 states that the land grants were directed "towards the extinguishment of the Indian Title to the lands in the Province", and that the land grant was for "the benefit of the families of the half- breed residents". This language, the Métis argue, acknowledges that the Métis gave the Crown control over their homeland in the Red River Settlement in exchange for a number of provisions in the Manitoba Act, a constitutional document. The Métis say speeches in the House of Commons by the framers of the Manitoba Act, Prime Minister Macdonald and George-Étienne Cartier, confirm that the purpose of s. 31 was to extinguish the "Indian Title" of the Métis. The Métis urge that the Manitoba Act must be read broadly in light of its purpose of bringing Manitoba peaceably into Confederation and assuring a future for the Métis as landholders and settlers in the new province: see R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at para. 17.

55 Canada replies that s. 31 does not establish pre-existing Aboriginal interest in land. It was an [page655] instrument directed at settling grievances, and the reference to "Indian Title" does not establish that such title actually existed. It was up to the Métis to prove that they held an Aboriginal interest in land prior to the Manitoba Act, and they have not done so, Canada argues. Canada acknowledges that individual Métis people held individual parcels of land, but it denies that they held the collective Aboriginal interest necessary to give rise to a fiduciary duty.

56 The trial judge's findings are fatal to the Métis' argument. He found as a fact that the Métis used and held land individually, rather than communally, and permitted alienation. He found no evidence that the Métis asserted they held Indian title when British leaders purported to extinguish Indian title, first in the Settlement belt and then throughout the province. He found that the Red River Métis were descended from many different bands. While individual Métis held interests in land, those interests arose from their personal history, not their shared Métis identity. Indeed the trial judge concluded Métis ownership practices were incompatible with the claimed Aboriginal interest in land.

57 The Métis argue that the trial judge and the Court of Appeal erred in going behind the language of s. 31 and demanding proof of a collective Aboriginal interest in land. They assert that Aboriginal title was historically uncertain, and that the Crown's practice was to accept that any organized Aboriginal group had title and to extinguish that title by treaty, or in this case, s. 31 of the Manitoba Act.

58 Even if this was the Crown's practice (a doubtful assumption in the absence of supporting evidence), it does not establish that the Métis held either Aboriginal title or some other Aboriginal interest in specific lands as a group. An Aboriginal interest in land giving rise to a fiduciary duty cannot be established by treaty, or, by extension, [page656] legislation. Rather, it is predicated on historic use and occupation. As Dickson J. stated in Guerin:

The "political trust" cases concerned essentially the distribution of public funds or other property held by the government. In each case the party claiming to be beneficiary under a trust depended entirely on statute, ordinance or treaty as the basis for its claim to an interest in the funds in question. The situation of the Indians is entirely different. Their interest in their lands is a pre-existing legal right not created by Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive or legislative provision. [Emphasis added; p. 379.]

59 In summary, the words of s. 31 do not establish pre-existing communal Aboriginal title held by the Métis. Nor does the evidence: the trial judge's findings of fact that the Métis had no communal Aboriginal interest in land are fatal to this contention. It follows that the argument that Canada was under a fiduciary duty in administering the Page53 17 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 children's land because the Métis held an Aboriginal interest in the land must fail. The same reasoning applies to s. 32 of the Manitoba Act.

(3) Did the Crown Undertake to Act in the Best Interests of the Métis, Giving Rise to a Fiduciary Duty?

60 This leaves the question of whether a fiduciary duty is established on the basis of an undertaking by the Crown. To recap, this requires:

(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely [page657] affected by the alleged fiduciary's exercise of discretion or control.

(Elder Advocates, at para. 36)

61 The first question is whether an undertaking has been established. In order to elevate the Crown's obligations to a fiduciary level, the power retained by the Crown must be coupled with an undertaking of loyalty to act in the beneficiaries' best interests in the nature of a private law duty: Guerin, at pp. 383-84. In addition, "[t]he party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake": Elder Advocates, at para. 31.

62 While s. 31 shows an intention to benefit the Métis children, it does not demonstrate an undertaking to act in their best interests, in priority to other legitimate concerns, such as ensuring land was available for the construction of the railway and opening Manitoba for broader settlement. Indeed, the discretion conferred by s. 31 to determine "such mode and on such conditions as to settlement and otherwise" belies a duty of loyalty and an intention to act in the best interests of the beneficiary, forsaking all other interests.

63 Nor did s. 32 constitute an undertaking on the part of the Crown to act as a fiduciary in settling the titles of the Métis landholders. It confirmed the continuance of different categories of landholdings in existence shortly before or at the creation of the new province (C.A., at paras. 673 and 717), and applied to all landholders (C.A., at para. 717; see also paras. 674 and 677).

[page658]

(4) Conclusion on Fiduciary Duty

64 We conclude that Canada did not owe a fiduciary duty to the Métis in implementing ss. 31 and 32 of the Manitoba Act.

C. Did Canada Fail to Comply With the Honour of the Crown in the Implementation of Sections 31 and 32 of the Manitoba Act? (1) The Principle of the Honour of the Crown

65 The appellants argue that Canada breached a duty owed to the Métis based on the honour of the Crown. The phrase "honour of the Crown" refers to the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign.

66 The honour of the Crown arises "from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people": Haida Nation, at para. 32. In Page54 18 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to "the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection": see Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42. This "Protection", though, did not arise from a paternalistic desire to protect the Aboriginal peoples; rather, it was a recognition of their strength. Nor is the honour of the Crown a paternalistic concept. The comments of Brian Slattery with respect to fiduciary duty resonate here:

The sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a "weaker" or "primitive" people, as has sometimes been suggested, but rather in the necessity of persuading native peoples, at a time when they still had considerable military capacities, [page659] that their rights would be better protected by reliance on the Crown than by self-help.

("Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 727, at p. 753)

The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty. As stated in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24:

The duty of honour derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question.

67 The honour of the Crown thus recognizes the impact of the "superimposition of European laws and customs" on pre-existing Aboriginal societies: R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 248, per McLachlin J., dissenting. Aboriginal peoples were here first, and they were never conquered (Haida Nation, at para. 25); yet, they became subject to a legal system that they did not share. Historical treaties were framed in that unfamiliar legal system, and negotiated and drafted in a foreign language: R. v. Badger, [1996] 1 S.C.R. 771, at para. 52; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at pp. 142-43, per La Forest J. The honour of the Crown characterizes the "special relationship" that arises out of this colonial practice: Little Salmon, at para. 62. As explained by Brian Slattery:

... when the Crown claimed sovereignty over Canadian territories and ultimately gained factual control [page660] over them, it did so in the face of pre-existing Aboriginal sovereignty and territorial rights. The tension between these conflicting claims gave rise to a special relationship between the Crown and Aboriginal peoples, which requires the Crown to deal honourably with Aboriginal peoples.

("Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 433, at p. 436)

(2) When Is the Honour of the Crown Engaged?

68 The honour of the Crown imposes a heavy obligation, and not all interactions between the Crown and Aboriginal people engage it. In the past, it has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty. As stated in Badger:

... the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. [para. 41]

69 This Court has also recognized that the honour of the Crown is engaged by s. 35(1) of the Constitution Act, 1982. In R. v. Sparrow, [1990] 1 S.C.R. 1075, the Court found that s. 35(1) restrains the legislative power in s. 91(24), in accordance with the "high standard of honourable dealing": p. 1109. In Haida Nation, this Court explained that "[i]t is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees": para. 20. Because Page55 19 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 of its connection with s. 35, the honour of the Crown has been called a "constitutional principle": Little Salmon, at para. 42.

70 The application of these precedents to this case indicates that the honour of the Crown is also engaged by an explicit obligation to an Aboriginal group that is enshrined in the Constitution. The [page661] Constitution is not a mere statute; it is the very document by which the "Crow[n] assert[ed its] sovereignty in the face of prior Aboriginal occupation": Taku River, at para. 24. See also Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9. It is at the root of the honour of the Crown, and an explicit obligation to an Aboriginal group placed therein engages the honour of the Crown at its core. As stated in Haida Nation, "[i]n all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably": para. 17 (emphasis added).

71 An analogy may be drawn between such a constitutional obligation and a treaty promise. An "intention to create obligations" and a "certain measure of solemnity" should attach to both: R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1044; R. v. Sundown, [1999] 1 S.C.R. 393, at paras. 24-25. Moreover, both types of promises are made for the overarching purpose of reconciling Aboriginal interests with the Crown's sovereignty. Constitutional obligations may even be arrived at after a course of consultation similar to treaty negotiation.

72 The last element under this rubric is that the obligation must be explicitly owed to an Aboriginal group. The honour of the Crown will not be engaged by a constitutional obligation in which Aboriginal peoples simply have a strong interest. Nor will it be engaged by a constitutional obligation owed to a group partially composed of Aboriginal peoples. Aboriginal peoples are part of Canada, and they do not have special status with respect to constitutional obligations owed to Canadians as a whole. But a constitutional obligation explicitly directed at an Aboriginal group invokes its "special relationship" with the Crown: Little Salmon, at para. 62.

[page662]

(3) What Duties Are Imposed by the Honour of the Crown?

73 The honour of the Crown "is not a mere incantation, but rather a core precept that finds its application in concrete practices" and "gives rise to different duties in different circumstances": Haida Nation, at paras. 16 and 18. It is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled. Thus far, the honour of the Crown has been applied in at least four situations:

(1) The honour of the Crown gives rise to a fiduciary duty when the Crown assumes discretionary control over a specific Aboriginal interest (Wewaykum, at paras. 79 and 81; Haida Nation, at para. 18); (2) The honour of the Crown informs the purposive interpretation of s. 35 of the Constitution Act, 1982, and gives rise to a duty to consult when the Crown contemplates an action that will affect a claimed but as of yet unproven Aboriginal interest (Haida Nation, at para. 25); (3) The honour of the Crown governs treaty-making and implementation (Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, at p. 512, per Gwynne J., dissenting; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 51), leading to requirements such as honourable negotiation and the avoidance of the appearance of sharp dealing (Badger, at para. 41); and (4) The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples (R. v. Marshall, [1999] 3 S.C.R. 456, at para. 43, referring to The Case of The Churchwardens of St. Saviour in Southwark (1613), 10 Co. Rep. 66b, 77 E.R. 1025, [page663] and Roger Earl of Rutland's Case (1608), 8 Co. Rep. 55a, 77 E.R. 555; Mikisew Cree First Nation, at para. 51; Badger, at para. 47). Page56 20 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

74 Thus, the duty that flows from the honour of the Crown varies with the situation in which it is engaged. What constitutes honourable conduct will vary with the circumstances.

75 By application of the precedents and principles governing this honourable conduct, we find that when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it.

76 The first branch, purposive interpretation of the obligation, has long been recognized as flowing from the honour of the Crown. In the constitutional context, this Court has recognized that the honour of the Crown demands that s. 35(1) be interpreted in a generous manner, consistent with its intended purpose. Thus, in Haida Nation, it was held that, unless the recognition and affirmation of Aboriginal rights in s. 35 of the Constitution Act, 1982 extended to yet unproven rights to land, s. 35 could not fulfill its purpose of honourable reconciliation: para. 27. The Court wrote, at para. 33: "When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable." A purposive approach to interpretation informed by the honour of the Crown applies no less to treaty obligations. For example, in Marshall, Binnie J. rejected a proposed treaty interpretation on the grounds that it was not "consistent with the honour and integrity of the Crown... . The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown": para. 52.

[page664]

77 This jurisprudence illustrates that an honourable interpretation of an obligation cannot be a legalistic one that divorces the words from their purpose. Thus, the honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation.

78 Second, the honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests.

79 This duty has arisen largely in the treaty context, where the Crown's honour is pledged to diligently carrying out its promises: Mikisew Cree First Nation, at para. 51; Little Salmon, at para. 12; see also Haida Nation, at para. 19. In its most basic iteration, the law assumes that the Crown always intends to fulfill its solemn promises, including constitutional obligations: Badger; Haida Nation, at para. 20. At a minimum, sharp dealing is not permitted: Badger. Or, as this Court put it in Mikisew Cree First Nation, "the honour of the Crown [is] pledged to the fulfilment of its obligations to the Indians": para. 51. But the duty goes further: if the honour of the Crown is pledged to the fulfillment of its obligations, it follows then that the honour of the Crown requires the Crown to endeavour to ensure its obligations are fulfilled. Thus, in review proceedings under the James Bay and Northern Québec Agreement, the participants are expected to "carry out their work with due diligence": Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 23. As stated by Binnie J. in Little Salmon, at para. 12: "It is up to the parties, when treaty issues arise, to act diligently to advance their respective interests. Good government requires that decisions be taken in a timely way." This duty applies whether the obligation arises in a treaty, as in the precedents outlined above, or in the Constitution, as here.

[page665]

80 To fulfill this duty, Crown servants must seek to perform the obligation in a way that pursues the purpose behind the promise. The Aboriginal group must not be left "with an empty shell of a treaty promise": Marshall, at para. 52.

81 It is a narrow and circumscribed duty, which is engaged by the extraordinary facts before us. This duty, recognized in many authorities, is not a novel addition to the law. Page57 21 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

82 Not every mistake or negligent act in implementing a constitutional obligation to an Aboriginal people brings dishonour to the Crown. Implementation, in the way of human affairs, may be imperfect. However, a persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown's duty to act honourably in fulfilling its promise. Nor does the honour of the Crown constitute a guarantee that the purposes of the promise will be achieved, as circumstances and events may prevent fulfillment, despite the Crown's diligent efforts.

83 The question is simply this: Viewing the Crown's conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of the obligation?

(4) The Argument That Failure to Act Diligently in Implementing Section 31 Should Not Be Considered by This Court

84 Our colleague Rothstein J. asserts that the parties did not argue that lack of diligent implementation of s. 31 was inconsistent with the honour of the Crown, and that we should not therefore consider this possibility.

[page666]

85 We agree with our colleague that new developments in the law must be approached with caution where they have not been canvassed by the parties to the litigation. However, in our view this concern does not arise here.

86 The honour of the Crown was at the heart of this litigation from the beginning. Before the courts below and in this Court, the Métis argued that the conduct of the government in implementing s. 31 of the Manitoba Act breached the duty that arose from the honour of the Crown. They were supported in this contention by a number of interveners. In oral argument, the intervener the Attorney General for Saskatchewan stated that the honour of the Crown calls for "a broad, liberal, and generous interpretation", and acts as "an interpretive guide post to the public law duties ... with respect to the implementation of Section 31": transcript, at p. 67. The intervener Métis Nation of Alberta argued that s. 31 is an unfulfilled promise here, which the honour of the Crown demands be fulfilled by reconciliation through negotiation. The intervener the Métis Nation of Ontario argued that s. 31 "could not be honoured by a process that ultimately defeated the purpose of the provision": transcript, at p. 28.

87 These submissions went beyond the argument that the honour of the Crown gave rise to a fiduciary duty, raising the broader issue of whether the government's conduct generally comported with the honour of the Crown. Canada understood this: it argued in its factum that while the Crown intends to fulfill its promises, the honour of the Crown in this case does not give rise to substantive obligations to do so.

88 In short, all parties understood that the issue of what duties the honour of the Crown might raise, [page667] apart from a fiduciary duty, was on the table, and all parties presented submissions on it.

89 It is true that the Métis and the interveners supporting them did not put the argument in precisely the terms of the reasons. While they argued that the government's conduct in implementing s. 31 did not comport with the honour of the Crown, they did not express this alleged failure in terms of failure to comply with a duty of diligent implementation. However, this was implicit in their argument, given that the failure to diligently implement s. 31 lay at the heart of their grievance.

90 For these reasons, we conclude that it is not inappropriate to consider and resolve the question of what duties the honour of the Crown gave rise to in connection with s. 31 of the Manitoba Act, not just as they impact on the argument that the government owed a fiduciary duty to the Métis, but more broadly.

(5) Did the Solemn Promise in Section 31 of the Manitoba Act Engage the Honour of the Crown? Page58 22 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

91 As outlined above, the honour of the Crown is engaged by constitutional obligations to Aboriginal groups. Section 31 of the Manitoba Act is just such a constitutional obligation. Section 31 conferred land rights on yet-to-be- identified individuals - the Métis children. Yet the record leaves no doubt that it was a promise made to the Métis people collectively, in recognition of their distinct community. The honour of the Crown is thus engaged here.

92 To understand the nature of s. 31 as a solemn obligation, it may be helpful to consider its [page668] treaty-like history and character. Section 31 sets out solemn promises - promises which are no less fundamental than treaty promises. Section 31, like a treaty, was adopted with "the intention to create obligations ... and a certain measure of solemnity": Sioui, at p. 1044; Sundown. It was intended to create legal obligations of the highest order: no greater solemnity than inclusion in the Constitution of Canada can be conceived. Section 31 was conceived in the context of negotiations to create the new province of Manitoba. And all this was done to the end of reconciling the Métis Aboriginal interest with the Crown's claim to sovereignty. As the trial judge held:

... the evidence establishes that this [s. 31] grant, to be given on an individual basis for the benefit of the families, albeit given to the children, was given for the purpose of recognizing the role of the Métis in the Settlement both past and to the then present, for the purpose of attempting to ensure the harmonious entry of the territory into Confederation, mindful of both Britain's condition as to treatment of the settlers and the uncertain state of affairs then existing in the Settlement, and for the purpose of giving the children of the Métis and their families on a onetime basis an advantage in the life of the new province over expected immigrants. [Emphasis added; para. 544.]

93 Section 31, though, is not a treaty. The trial judge correctly described s. 31 as a constitutional provision crafted for the purpose of resolving Aboriginal concerns and permitting the creation of the province of Manitoba. When the Manitoba Act was passed, the Métis dominated the Red River provisional government, and controlled a significant military force. Canada had good reason to take the steps necessary to secure peace between the Métis and the settlers. Justice MacInnes wrote:

Canada, to the knowledge of Macdonald and Cartier, was in a difficult position having to complete the steps necessary for the entry of Rupert's Land into Canada. An insurrection had occurred at Red River such that, in the view of both Canada and Britain, a void in the lawful governance of the territory existed. Canada, as a result [page669] of McDougall's conduct on December 1, 1869, had in a practical sense claimed the territory for Canada, but the legal transfer of the territory from Britain had not yet occurred. Accordingly, Canada had no lawful authority to govern the area. Furthermore, there was neither the practical ability nor the will for Canada or the Imperial Government to enforce authority and in that sense, the purpose of the discussions or negotiations between the Red River delegates and Macdonald and Cartier was to bring about in a peaceful way the entry of the territory into Canada, thereby giving Canada the opportunity to peacefully take over the territory and its governance and be able to move forward with its goal of nation building. [para. 649]

94 Section 31 is a constitutional obligation to an Aboriginal group. In accordance with the principles outlined above, the honour of the Crown is engaged by s. 31 and gives rise to a duty of diligent, purposive fulfillment.

(6) Did Section 32 of the Manitoba Act Engage the Honour of the Crown?

95 We agree with the Court of Appeal that the honour of the Crown was not engaged by s. 32 of the Manitoba Act. Unlike s. 31, it was not a promise made specifically to an Aboriginal group, but rather a benefit made generally available to all settlers, Métis and non-Métis alike. The honour of the Crown is not engaged whenever an Aboriginal person accesses a benefit.

(7) Did the Crown Act Honourably in Implementing Section 31 of the Manitoba Act?

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96 The trial judge indicated that, although they did not act in bad faith, the government servants may have been negligent in administering the s. 31 grant. He held that the implementation of the obligation was within the Crown's discretion and that it had a discretion to act negligently: "Mistakes, even negligence, on the part of those responsible for implementation of the grant are not sufficient to successfully attack Canada's exercise of discretion [page670] in its implementation of the grant" (para. 943 (emphasis added)). The Court of Appeal took a similar view: see para. 656.

97 Based on the arguments before them and the applicable precedents, the trial judge and the Court of Appeal did not focus on what we take as the central issue in the case: whether the government's implementation of s. 31 comported with the duty of the Crown to diligently pursue implementation of the provision in a way that would achieve its objectives. The question is whether the Crown's conduct, viewed as a whole and in context, met this standard. We conclude that it did not.

98 The broad purpose of s. 31 of the Manitoba Act was to reconcile the Métis community with the sovereignty of the Crown and to permit the creation of the province of Manitoba. This reconciliation was to be accomplished by a more concrete measure - the prompt and equitable transfer of the allotted public lands to the Métis children.

99 The prompt and equitable implementation of s. 31 was fundamental to the project of reconciliation and the entry of Manitoba into Canada. As the trial judge found, s. 31 was designed to give the Métis a head start in the race for land and a place in the new province. This required that the grants be made while a head start was still possible. Everyone concerned understood that a wave of settlement from Europe and Canada to the east would soon sweep over the province. Acknowledging the need for timely implementation, Minister Cartier sent a letter to the meeting of the Manitoba Legislature charged with determining whether to accept the Manitoba Act, assuring the Métis that the s. 31 grants would "be of a nature to meet the wishes of the half-breed residents" and that the division of land would be done "in the most effectual and equitable manner".

[page671]

100 The Métis allege Canada failed to fulfill its duties to the Métis people in relation to the children's grant in four ways: (1) inexcusably delaying distribution of the s. 31 lands; (2) distributing lands via random selection rather than ensuring family members received contiguous parcels; (3) failing to ensure s. 31 grant recipients were not taken advantage of by land speculators; and (4) giving some eligible Métis children $240 worth of scrip redeemable at the Land Titles Office instead of a direct grant of land. We will consider each in turn.

(a) Delay

101 Contrary to the expectations of the parties, it took over 10 years to make the allotments of land to Métis children promised by s. 31. Indeed, the final settlement, in the form not of land but of scrip, did not occur until 1885. This delay substantially defeated a purpose of s. 31.

102 A central purpose of the s. 31 grant, as found by MacInnes J., was to give "families of the Métis through their children a head start in the new country in anticipation of the probable and expected influx of immigrants": para. 655. Time was then plainly of the essence, if the goal of giving the Métis children a real advantage, relative to an impending influx of settlers from the east, was to be achieved.

103 The government understood this. Prime Minister Macdonald, on May 2, 1870, just before addressing Parliament, wrote that the land was

to be distributed as soon as practicable amongst the different heads of half breed families according to the number of children of both sexes then existing in each [page672] family under such legislative enactments,

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which may be found advisable to secure the transmission and holding of the said lands amongst the half breed families. - To extinguish Indian claims - ... [Emphasis added.]

And Minister Cartier, as we know, confirmed that the "guarantee" would be effected "in the most effectual and equitable manner".

104 Yet that was not what happened. As discussed earlier in these reasons, implementation was delayed by many government actions and inactions, including: (1) starting off with the wrong class of beneficiaries, contrary to the wording of s. 31 and objections in the House of Commons; (2) taking three years to rectify this error; (3) commissioning a report in 1875 that erroneously lowered the number of eligible recipients and required yet a third allotment; (4) completing implementation only in 1885 by giving scrip to eligible Métis denied land because of mistakes in the previous three iterations of the allotment process; (5) long delays in issuing patents; and (6) unexplained periods of inaction. In the meantime, settlers were pouring in and the Manitoba Legislature was passing various acts dealing in different and contradictory ways with how Métis could sell their yet-to-be-realized interests in land.

105 The delay was noted by all concerned. The Legislative Council and Assembly of Manitoba complained of the delay on February 8, 1872, noting that new settlers had been allowed to take up land in the area. In early 1875, a number of Métis parishes sent petitions to Ottawa complaining of the delay, saying it was having a "damaging effect upon the prosperity of the Province": C.A., at para. 123. The provincial government also in that year made a request to the Governor General that the process be expedited. In 1883, the Deputy Minister of the Interior, A. M. Burgess, said this: "I am every day grieved and heartily sick when I [page673] think of the disgraceful delay ... .": A.R., vol. XXI, at pp. 123-24; see also C.A., at para. 160.

106 This brings us to whether the delay was inconsistent with the duty imposed by the honour of the Crown to act diligently to fulfill the purpose of the s. 31 obligation. The Court of Appeal did not consider this question. But like the trial judge, it concluded that inattention and carelessness were likely factors:

With respect to those known events that contributed to the delay (prominent among them the cancellation of the first two allotments, the slow pace of the allotment process in the third and final round, the erroneous inclusion of adults as beneficiaries for the s. 31 grants, and the long delays in the issuance of patents), mistakes were made and it is difficult to avoid the inference that inattention or carelessness may have been a contributing factor. [para. 656]

107 As discussed above, a negligent act does not in itself establish failure to implement an obligation in the manner demanded by the honour of the Crown. On the other hand, a persistent pattern of inattention may do so if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained.

108 The record and findings of the courts below suggest a persistent pattern of inattention. The government was warned of the initial error of including all Métis, yet took three years to cancel the first faulty allotment and start a second. An inexplicable delay lies between the first and second allotments, from 1873 to 1875. The government had changed, to be sure. But as the Court of Appeal found, there is no explanation in the record as to "why it took the new government over a year to address the continuing delays in moving ahead with the allotments": para. 126. The Crown's obligations cannot be suspended simply because there is a change in government. The second allotment, when [page674] it finally took place, was aborted in 1876 because of a report that underestimated eligible recipients. But there is no satisfactory explanation why a third and final allotment was not completed until 1880. The explanation offered is simply that those in charge did not have adequate time to devote to the task because of other government priorities, and they did not wish to delegate the task because information about the grants might fall into the hands of speculators.

109 We take no issue with the finding of the trial judge that, with one exception, there was no bad faith or misconduct on the part of the Crown employees: paras. 1208-9. However, diligence requires more than simply the absence of bad faith. The trial judge noted that the children's grants "were not implemented or administered without Page61 25 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 error or dissatisfaction": para. 1207. Viewing the matter through the lens of fiduciary duty, the trial judge found this did not rise to a level of concern. We take a different view. The findings of the trial judge indicate consistent inattention and a consequent lack of diligence.

110 We conclude that, viewing the conduct of the Crown in its entirety and in the context of the situation, including the need for prompt implementation, the Crown acted with persistent inattention and failed to act diligently to achieve the purposes of the s. 31 grant. Canada's argument that, in some cases, the delay secured better prices for Métis who sold is undermined by evidence that many Métis sold potential interests for too little, and, in any event, it does not absolve the Crown of failure to act as its honour required. The delay in completing the s. 31 distribution was inconsistent with the behaviour demanded by the honour of the Crown.

[page675]

(b) Sales to Speculators

111 The Métis argue that Canada breached its duty to the children eligible for s. 31 grants by failing to protect them from land speculators. They say that Canada should not have permitted sales before the allotments were granted to the children or before the recipients attained the age of majority.

112 Canada responds that the Crown was not obliged to impose any restraint on alienation, and indeed would have been criticized had it done so. It says that the Métis already had a history of private landholding, including buying and selling property. They say that the desire of many Métis to sell was not the result of any breach of duty by the Crown, but rather simply reflected that the amount of land granted far exceeded Métis needs, and many Métis did not desire to settle down in Manitoba.

113 The trial judge held that restricting the alienability of Métis land would have been seen as patronizing and been met with disfavour amongst the Métis. The Court of Appeal agreed, and added that, "practically speaking, next to nothing could have been done to prevent sales of and speculation in s. 31 lands in the absence of an absolute prohibition against sales of any kind": para. 631. It added that some Métis received more land than they needed, and many were leaving the settlement to follow the buffalo hunt, making the ability to sell their interests valuable.

114 We see no basis to interfere with the finding that many eligible Métis were determined to sell their lots or the conclusion that a prohibition on sales would have been unacceptable. This said, we note that the 10-year delay in implementation of the land grants increased sales to speculators. Persons concerned at the time urged that information about [page676] the location of each child's individual allotment be made public as early as possible to give potential claimants a sense of ownership and avert speculative sell-offs. This did not happen: evidence of Dr. Thomas Flanagan, A.R., vol. XXVI, at p. 53. Dr. Flanagan concluded "[t]he Metis were already selling their claims to participate in the grant, and being able to sell the right to a particular piece of land rather than a mere right to participate in a lottery would indeed have enhanced the prices they received": p. 54. Until the Métis acquired their s. 31 grants, they provided no benefit to the children, and a cash offer from a speculator would appear attractive. Moreover, as time passed, the possibility grew that the land was becoming less valuable, as the Métis could not effectively protect any timber or other resources that might exist on the plots they might someday receive from exploitation by others.

115 In 1873, the Manitoba government, aware of the improvident sales that were occurring, moved to curb speculation by passing The Half-Breed Land Grant Protection Act, S.M. 1873, c. 44, which permitted vendors to repudiate sales. The preamble to that legislation recognized that "very many persons entitled to participate in the said grant in evident ignorance of the value of their individual shares have agreed severally to sell their right to the same to speculators, receiving therefor only a trifling consideration". However, with An Act to amend the Act passed in the 37th year of Her Majesty's reign, entitled "The Half-Breed Land Grant Protection Act", S.M. 1877, c. 5 ("The Half-Breed Land Grant Amendment Act, 1877"), Manitoba changed course, so that a Métis child who made a bad bargain was stuck with it. An Act to enable certain children of Half-breed heads of families to convey their land, S.M. Page62 26 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

1878, c. 20 ("The Half-Breed Land Grant Act, 1878"), followed. It allowed Métis children between 18 and 21 years of age to sell their s. 31 entitlement with parental [page677] consent, so long as they appeared in front of one judge or two justices of the peace.

116 Dr. Flanagan found that 11 percent of the sample examined sold their lands prior to learning the location of their grant, and received "markedly lower prices" as a result: "Metis Family Study", A.R., vol. XXVII, at p. 53. The Court of Appeal concluded that the price received by Métis who sold after allotment was about twice that received by those who sold before allotment: para. 168.

117 The honour of the Crown did not demand that the grant lands be made inalienable. However, the facts on the ground, known to all, made it all the more important to complete the allotment without delay and, in the interim, to advise Métis of what holdings they would receive. By 1874, in their recommendations as to how the allotment process should be carried out, both Codd and Lieutenant Governor Alexander Morris implicitly recognized that delay was encouraging sales at lower prices; nevertheless, allotment would not be complete for six more years. Until allotments were known and completed, delay inconsistent with the honour of the Crown was perpetuating a situation where children were receiving artificially diminished value for their land grants.

118 Due to Codd's underestimation of the number of eligible children, 993 Métis were left out of the 1.4 million-acre allotment in the end. Instead, they received scrip redeemable for land at a land title office. Scrip could also be sold for cash on the open market, where it was worth about half its face value: C.A., at para. 168.

[page678]

119 The Métis argue that Canada breached its duty to the children who received scrip because s. 31 demanded that land, not scrip, be distributed; and because scrip was not distributed until 1885, when at going land prices, Métis who received scrip could not acquire the 240 acres granted to other children.

120 We do not accept the Métis' first argument that delivery of scrip instead of land constituted a breach of s. 31 of the Manitoba Act. As long as the 1.4 million acres was set aside and distributed with reasonable equity, the scheme of the Manitoba Act was not offended. It was unavoidable that the land would be distributed based on an estimate of the number of eligible Métis that would be inaccurate to some degree. The issuance of scrip was a reasonable mechanism to provide the benefit to which the excluded children were entitled.

121 The Métis' second argument is that the value of scrip issued was deficient. The government decided to grant to each left-out child $240 worth of scrip, based on a rate of $1 per acre. While the Order in Council price for land was $1 an acre in 1879, by 1885, when the scrip was delivered, most categories of land were priced at $2 or $2.50 an acre at the land title office: A.R., vol. XXIV, at p. 8. The children who received scrip thus obtained a grant equivalent to between 96 and 120 acres, significantly less than the 240 acres provided to those who took part in the initial distribution. The delay resulted in the excluded children receiving less land than the others. This was a departure from the s. 31 promise that the land would be divided in a roughly equal fashion amongst the eligible children.

122 The most serious complaint regarding scrip is that Canada took too long to issue it. The process was marred by the delay and mismanagement that typified the overall implementation of the s. 31 grants. Canada recognized in 1884 that a significant number of eligible children would not receive the [page679] land to which they were entitled, yet it did nothing to provide a remedy to the excluded beneficiaries for almost a year. The trial judge observed:

By memorandum to the Minister of the Interior dated May 1884, Deputy Minister A.M. Burgess wrote that there were about 500 claimants whose applications had been approved but whose claims were unsatisfied

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because the land had been "exhausted". He was unable to explain the error, but recommended that scrip be issued to the children. For whatever reason action was postponed until April 1885 when Burgess submitted another report in which he explained how this shortage occurred. Burgess recommended as equitable that the issue of scrip to each half-breed child who has since proved his or her claim should be for $240.00, the same to be accepted as in full satisfaction of such claim. The $240.00 was based upon 240 acres (being the size of the individual grant) at the rate of $1.00 per acre. [paras. 255-56]

123 We conclude that the delayed issuance of scrip redeemable for significantly less land than was provided to the other recipients further demonstrates the persistent pattern of inattention inconsistent with the honour of the Crown that typified the s. 31 grants.

(d) Random Allotment

124 The Métis assert that the s. 31 lands should have been allotted so that the children's lots were contiguous to, or in the vicinity of, their parents' lots. At a minimum, they say siblings' lands should have been clustered together. They say that this was necessary to facilitate actual settlement, rather than merely sale, of the s. 31 lands, so as to establish a Métis homeland.

[page680]

125 Canada responds that it would not have been possible to settle all the Métis children on lots contiguous to their parents. Many families had a large number of children, and each child was entitled to a 240-acre lot. They argue that in the circumstances, a random allotment was reasonable.

126 The trial judge found there was no agreement to distribute the land in family blocks. He observed that while the French Métis generally wanted grants contiguous to where they were residing and were not overly concerned with the value of the land, the English Métis were interested in selecting the most valuable allotments available even if they were not adjacent to their family lots. He also observed that the lottery was not random throughout the province: each parish received an allotment of land in its area and then distributed land within that allotment randomly to the individual Métis children living in the parish. He concluded that it was difficult to conceive how the land could have been administered other than by random lottery without creating unfairness and divisiveness within each parish. Further, because of the size of the grants, it would be hard to give a family a series of 240-acre contiguous parcels without interfering with neighbouring families' ability to receive the same. Moreover, a random lottery gave each child within the parish an equal chance at receiving the best parcel available. Finally, there was little, if any, complaint about the random selection from those present at the time. The Court of Appeal agreed, noting that Lieutenant Governor Archibald attempted to accommodate Métis wishes for the placement of a parish's allotments.

127 Given the finding at trial that the grant was intended to benefit the individual children, not establish a Métis land base, we accept that random selection within each parish was an acceptable way to distribute the land consistent with the purpose of the s. 31 obligation. This said, the delay in [page681] distributing land, and the consequential sales prior to patent, may well have made it more difficult for Métis to trade grants amongst themselves to achieve contiguous parcels.

(8) Conclusion on the Honour of the Crown

128 The s. 31 obligation made to the Métis is part of our Constitution and engages the honour of the Crown. The honour of the Crown required the Crown to interpret s. 31 in a purposive manner and to diligently pursue fulfillment of the purposes of the obligation. This was not done. The Métis were promised implementation of the s. 31 land grants in "the most effectual and equitable manner". Instead, the implementation was ineffectual and inequitable. Page64 28 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade. A government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.

D. Were the Manitoba Statutes Related to Implementation Unconstitutional?

129 The Métis seek a declaration that the impugned eight statutes passed by Manitoba were ultra vires and therefore unconstitutional or otherwise inoperative by virtue of the doctrine of paramountcy.

130 Between 1877 and 1885, Manitoba passed five statutes that regulated the means by which sales of s. 31 lands could take place by private contract or court order. They dealt with the technical requirements to transfer interests in s. 31 lands. These included: permitting sales by a s. 31 allottee who was over 21 years of age (The Half-Breed Land Grant Amendment Act, 1877); allowing sales of grants by Métis between 18 and 21 years of age with parental consent and consent of the child supervised [page682] by a judge or two justices of the peace (The Half-Breed Land Grant Act, 1878); and settling issues as to the sufficiency of documentation necessary to pass good title in anticipation of the introduction of the Torrens system (An Act relating to the Titles of Half-Breed Lands, S.M. 1885, c. 30). The Manitoba statutes were consolidated in the Half-Breed Lands Act, R.S.M. 1891, c. 67, and eventually repealed by The Statute Law Revision and Statute Law Amendment Act, 1969, S.M. 1969 (2nd Sess.), c. 34, s. 31.

131 In Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, a preliminary motion to strike was brought by Canada in respect of this litigation. Wilson J. stated:

The Court is of the view also that the subject matter of the dispute, inasmuch as it involves the constitutionality of legislation ancillary to the Manitoba Act, 1870 is justiciable in the courts and that declaratory relief may be granted in the discretion of the court in aid of extra-judicial claims in an appropriate case. [Emphasis added; p. 280.]

This statement is not a ruling or a pre-determination on whether the review of the repealed statutes in this action is moot. The Dumont decision recognizes that a declaration may be granted - in the discretion of the court - in aid of extra-judicial relief in an appropriate case. The Court simply decided that it was not "plain and obvious" or "beyond doubt" that the case would fail: p. 280.

132 These statutes have long been out of force. They can have no future impact. Their only significance is as part of the historic matrix of the Métis' claims. In short, they are moot. To consider their constitutionality would be a misuse of the Court's time. We therefore need not address this issue.

[page683]

E. Is the Claim for a Declaration Barred by Limitations?

133 We have concluded that Canada did not act diligently to fulfill the specific obligation to the Métis contained in s. 31 of the Manitoba Act, as required by the honour of the Crown. For the reasons below, we conclude that the law of limitations does not preclude a declaration to this effect.

134 This Court has held that although claims for personal remedies flowing from the striking down of an unconstitutional statute are barred by the running of a limitation period, courts retain the power to rule on the constitutionality of the underlying statute: Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181. The constitutionality of legislation has always been a justiciable question: Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 151. The "right of the citizenry to constitutional behaviour by Parliament" can be vindicated by a declaration that legislation is invalid, or that a public act is ultra vires: Canadian Bar Assn. v. British Columbia, 2006 BCSC 1342, 59 B.C.L.R. Page65 29 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

(4th) 38, at paras. 23 and 91, citing Thorson, at p. 163 (emphasis added). An "issue [that is] constitutional is always justiciable": Waddell v. Schreyer (1981), 126 D.L.R. (3d) 431 (B.C.S.C.), at p. 437, aff'd (1982), 142 D.L.R. (3d) 177 (B.C.C.A.), leave to appeal refused, [1982] 2 S.C.R. vii (sub nom. Foothills Pipe Lines (Yukon) Ltd. v. Waddell).

135 Thus, this Court has found that limitations of actions statutes cannot prevent the courts, as guardians of the Constitution, from issuing declarations on the constitutionality of legislation. By extension, limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown's conduct.

[page684]

136 In this case, the Métis seek a declaration that a provision of the Manitoba Act - given constitutional authority by the Constitution Act, 1871 - was not implemented in accordance with the honour of the Crown, itself a "constitutional principle": Little Salmon, at para. 42.

137 Furthermore, the Métis seek no personal relief and make no claim for damages or for land. Nor do they seek restoration of the title their descendants might have inherited had the Crown acted honourably. Rather, they seek a declaration that a specific obligation set out in the Constitution was not fulfilled in the manner demanded by the Crown's honour. They seek this declaratory relief in order to assist them in extra-judicial negotiations with the Crown in pursuit of the overarching constitutional goal of reconciliation that is reflected in s. 35 of the Constitution Act, 1982.

138 The respondents argue that this claim is statute-barred by virtue of Manitoba's limitations legislation, which, in all its iterations, has contained provisions similar to the current one barring "actions grounded on accident, mistake or other equitable ground of relief" six years after the discovery of the cause of action: The Limitation of Actions Act, C.C.S.M. c. L150, s. 2(1)(k). Breach of fiduciary duty is an "equitable ground of relief". We agree, as the Court of Appeal held, that the limitation applies to Aboriginal claims for breach of fiduciary duty with respect to the administration of Aboriginal property: Wewaykum, at para. 121, and Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 13.

139 However, at this point we are not concerned with an action for breach of fiduciary duty, but with a claim for a declaration that the Crown did not [page685] act honourably in implementing the constitutional obligation in s. 31 of the Manitoba Act. Limitations acts cannot bar claims of this nature.

140 What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Constitution Act, 1982 and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied. The unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import. The courts are the guardians of the Constitution and, as in Ravndahl and Kingstreet, cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 72.

141 Furthermore, many of the policy rationales underlying limitations statutes simply do not apply in an Aboriginal context such as this. Contemporary limitations statutes seek to balance protection of the defendant with fairness to the plaintiffs: Novak v. Bond, [1999] 1 S.C.R. 808, at para. 66, per McLachlin J. In the Aboriginal context, reconciliation must weigh heavily in the balance. As noted by Harley Schachter:

The various rationales for limitations are still clearly relevant, but it is the writer's view that the goal of reconciliation is a far more important consideration and ought to be given more weight in the analysis. Arguments that provincial limitations apply of their own force, or can be incorporated as valid federal law, miss the point when aboriginal and treaty rights are at issue. They ignore the [page686] real analysis that ought to be undertaken, which is one of reconciliation and justification. Page66 30 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

("Selected Current Issues in Aboriginal Rights Cases: Evidence, Limitations and Fiduciary Obligations", in The 2001 Isaac Pitblado Lectures: Practising Law In An Aboriginal Reality (2001), 203, at pp. 232-33)

Schachter was writing in the context of Aboriginal rights, but the argument applies with equal force here. Leonard I. Rotman goes even farther, pointing out that to allow the Crown to shield its unconstitutional actions with the effects of its own legislation appears fundamentally unjust: "Wewaykum: A New Spin on the Crown's Fiduciary Obligations to Aboriginal Peoples?" (2004), U.B.C. L. Rev. 219, at pp. 241-42. The point is that despite the legitimate policy rationales in favour of statutory limitations periods, in the Aboriginal context, there are unique rationales that must sometimes prevail.

142 In this case, the claim is not stale - it is largely based on contemporaneous documentary evidence - and no third party legal interests are at stake. As noted by Canada, the evidence provided the trial judge with "an unparalleled opportunity to examine the context surrounding the enactment and implementation of ss. 31 and 32 of the Manitoba Act": R.F., at para. 7.

143 Furthermore, the remedy available under this analysis is of a limited nature. A declaration is a narrow remedy. It is available without a cause of action, and courts make declarations whether or not any consequential relief is available. As argued by the intervener the Assembly of First Nations, it is not awarded against the defendant in the same sense as coercive relief: factum, at para. 29, citing Cheslatta Carrier Nation v. British Columbia, 2000 BCCA 539, 193 D.L.R. (4th) 344, at paras. 11-16. In some cases, declaratory relief may be the only way to give effect to the honour of the Crown: Assembly of First Nations' factum, at para. 31. Were the Métis in this action seeking personal remedies, the [page687] reasoning set out here would not be available. However, as acknowledged by Canada, the remedy sought here is clearly not a personal one: R.F., at para. 82. The principle of reconciliation demands that such declarations not be barred.

144 We conclude that the claim in this case is a claim for a declaration of the constitutionality of the Crown's conduct toward the Métis people under s. 31 of the Manitoba Act. It follows that The Limitation of Actions Act does not apply and the claim is not statute-barred.

F. Is the Claim for a Declaration Barred by Laches?

145 The equitable doctrine of laches requires a claimant in equity to prosecute his claim without undue delay. It does not fix a specific limit, but considers the circumstances of each case. In determining whether there has been delay amounting to laches, the main considerations are (1) acquiescence on the claimant's part; and (2) any change of position that has occurred on the defendant's part that arose from reasonable reliance on the claimant's acceptance of the status quo: M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at pp. 76-80.

146 As La Forest J. put it in M. (K.), at pp. 76-77, citing Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, at pp. 239-40:

Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

[page688]

La Forest J. concluded as follows:

What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, Page67 31 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine. [Emphasis added; pp. 77-78.]

147 Acquiescence depends on knowledge, capacity and freedom: Halsbury's Laws of England (4th ed. 2003), vol. 16(2), at para. 912. In the context of this case - including the historical injustices suffered by the Métis, the imbalance in power that followed Crown sovereignty, and the negative consequences following delays in allocating the land grants - delay by itself cannot be interpreted as some clear act by the claimants which amounts to acquiescence or waiver. As explained below, the first branch of the Lindsay test is not met here.

148 The trial judge found that the delay in bringing this action was unexplained, in part because other constitutional litigation was undertaken in the 1890s: paras. 456-57. Two Manitoba statutes were challenged, first in the courts, and then by petition to the Governor General in Council: paras. 431-37. The trial judge inferred that many of the signatories to the petition would have been Métis: para. 435. While we do not contest this factual finding, we do question the legal inference drawn from it by the trial judge. Although many signatories were Métis, the petitioners were, in fact, a broader group, including many signatories and community leaders who were not Métis. For example, as noted by the trial judge, neither Archbishop Taché nor Father Ritchot - leaders in "the French Catholic/Métis community" - were Métis: para. 435. The actions of this large community say little, in law, about the ability of the Métis to seek a declaration based on the honour of the Crown. They do not [page689] establish acquiescence by the Métis community in the existing legal state of affairs.

149 Furthermore, in this rapidly evolving area of the law, it is rather unrealistic to suggest that the Métis sat on their rights before the courts were prepared to recognize those rights. As it is, the Métis commenced this claim before s. 35 was entrenched in the Constitution, and long before the honour of the Crown was elucidated in Haida Nation. It is difficult to see how this could constitute acquiescence in equity.

150 Moreover, a court exercising equitable jurisdiction must always consider the conscionability of the behaviour of both parties: see Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 22. Canada was aware that there would be an influx of settlers and that the Métis needed to get a head start before that transpired, yet it did not work diligently to fulfill its constitutional promise to the Métis, as the honour of Crown required. The Métis did not receive the intended head start, and following the influx of settlers, they found themselves increasingly marginalized, facing discrimination and poverty: see, e.g., trial, at para. 541; C.A., at paras. 95, 244 and 638; A.F., at para. 200. Although bad faith is neither claimed nor needed here, the appellants point to a letter written by Sir John A. Macdonald, which suggests that this marginalization may even have been desired:

... it will require a considerable management to keep those wild people quiet. In another year the present residents will be altogether swamped by the influx of strangers who will go in with the idea of becoming industrious and peaceable settlers.

(October 14, 1869, A.R., vol. VII, at p. 65)

[page690]

151 Be that as it may, this marginalization is of evidentiary significance only, as we cannot - and need not - unravel history and determine the precise causes of the marginalization of the Métis community in Manitoba after 1870. All that need be said (and all that is sought in the declaration) is that the central promise the Métis obtained from the Crown in order to prevent their future marginalization - the transfer of lands to the Métis children - was not carried out with diligence, as required by the honour of the Crown.

152 The second consideration relevant to laches is whether there was any change in Canada's position as a result of the delay. The answer is no. This is a case like M. (K.), where La Forest J. observed that it could not be seen how the "plaintiff ... caused the defendant to alter his position in reasonable reliance on the plaintiff's acceptance of

Page68 32 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb": p. 77, quoting R. P. Meagher, W. M. C. Gummow and J. R. F. Lehane, Equity Doctrines and Remedies (2nd ed. 1984), at p. 755.

153 This suffices to answer Canada's argument that the Métis claim for a declaration that the Crown failed to act in accordance with the honour of the Crown is barred by laches. We add this, however. It is difficult to see how a court, in its role as guardian of the Constitution, could apply an equitable doctrine to defeat a claim for a declaration that a provision of the Constitution has not been fulfilled as required by the honour of the Crown. We note that, in Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327, at p. 357, Lamer C.J. noted that the doctrine of laches does not apply to a constitutional division of powers question. (See also Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032.) The Constitution is the supreme law of our country, and it demands that courts be empowered to protect its substance and uphold its promises.

[page691]

VII. Disposition

154 The appeal is allowed in part. We conclude that the appellants are entitled to the following declaration:

That the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown.

155 The appellants are awarded their costs throughout.

The reasons of Rothstein and Moldaver JJ. were delivered by

ROTHSTEIN J. (dissenting)

I. Introduction

156 In this case, the majority has created a new common law constitutional obligation on the part of the Crown - one that, they say, is unaffected by the common law defence of laches and immune from the legislature's undisputed authority to create limitations periods. They go this far notwithstanding that the courts below did not consider the issue, and that the parties did not argue the issue before this Court. As a result of proceeding in this manner, the majority has fashioned a vague rule that is unconstrained by laches or limitation periods and immune from legislative redress, making the extent and consequences of the Crown's new obligations impossible to predict.

157 While I agree with several of the majority's conclusions, I respectfully disagree with their conclusions on the scope of the duty engaged by the honour of the Crown and the applicability of limitations and laches to this claim.

158 The appellants, herein referred to collectively as the "Métis" made four main claims before this Court. Their primary claim was that [page692] the Crown owed the Métis a fiduciary duty arising from s. 31 of the Manitoba Act, 1870, S.C. 1870, c. 3 ("Manitoba Act"), and that this duty had been breached. As evidence of the breach of fiduciary duty, the Métis pointed to several factors: the random allocation of the land grants, the delay in allocation of the land, and the allocation of scrip instead of land to some Métis children. These claims make up the bulk of the argument in the Métis' factum.

159 The Métis also raised three other claims in less detail. First, they claimed that provincial statutes were ultra vires or inoperative due to the doctrine of paramountcy. Second, they claimed that the Crown did not fulfill its fiduciary duty under, or simply did not properly implement, s. 32 of the Manitoba Act. Finally, they claimed a failure to fulfill constitutional obligations, obligations that they state engaged the honour of the Crown. However, they did not elaborate on what duties the honour of the Crown should trigger on these facts. Page69 33 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

160 The bulk of these claims were dismissed by the Chief Justice and Justice Karakatsanis and I am in agreement with them on those claims. I agree with their conclusion that there was no fiduciary duty here and therefore the claim for breach of fiduciary duty must fail. I agree that there are no valid claims arising from s. 32 of the Manitoba Act and that any claims that might have arisen from the now repealed Manitoba legislation on the land grants are moot, as those acts have long since been out of force. I agree with the majority that the random allocation of land grants was an acceptable means for Canada to implement the s. 31 land grants. Finally, I accept that the Manitoba Metis Federation has standing to bring these claims.

161 However, in my view, after correctly deciding all of these issues and consequently dismissing the vast majority of the claims raised on this appeal, my colleagues nonetheless salvage one aspect of the Métis' claims by expanding the scope of the duties that are engaged under the honour of the Crown. These issues were not the [page693] focus of the parties' submissions before this Court or the lower courts. Moreover, the new duty derived from the honour of the Crown that my colleagues have created has the potential to expand Crown liability in unpredictable ways. Finally, I am also of the opinion that any claim based on honour of the Crown was, on the facts of this case, barred by both limitations periods and laches. As a result, I would find for the respondents and dismiss the appeal.

II. Facts

162 While I agree with my colleagues' broad outlines of the facts of this case, I take issue with a number of the specific inferences or conclusions that they draw from the record.

163 As in all appellate reviews, the trial judge's factual findings should not be interfered with absent palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10). While the majority does not do so explicitly, aspects of their review and use of the facts depart from the findings of fact made by the trial judge. However, at no point do they show that the trial judge made any palpable and overriding error in reaching his conclusions. Nor did the Métis claim that the findings I describe below were based on palpable and overriding error.

164 There are two main areas in which the majority reasons have departed from the factual findings of the trial judge, absent a finding of palpable and overriding error: (1) the extent of the delay in distributing the land, and (2) the effect of that delay on the Métis. In my view, the majority's departure from the appropriate standard of appellate review in these areas calls their analysis into question.

A. Extent and Causes of the Delay

165 The majority concludes that the record and findings of the courts below suggest a "persistent pattern of inattention". This pattern leads them to find that the duty of diligent fulfillment of solemn promises derived from the honour of the Crown [page694] was breached. In their view, there was a significant delay in implementing the land grants and this delay substantially defeated the purpose of s. 31. I respectfully disagree.

(1) Historical Evidence

166 Historical evidence was presented at trial and the bulk of it was accepted by the trial judge. Based on that evidence and on the reasons of the trial judge, I have summarized the process of how the land grants were distributed below. Though I accept the finding of the trial judge that there was a lengthy delay in the distribution of the land grants, this history reveals a steady and persistent effort to distribute the land grants in the face of significant administrative challenges and an unstable political environment. While a faster process would most certainly have been better, I cannot accept the majority's conclusion that this evidence reveals a pattern of inattention - a finding that is nowhere to be found in the reasons of the trial judge.

(a) The Census Page70 34 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

167 The first Lieutenant Governor of Manitoba, A. G. Archibald, conducted a census which was completed on December 9, 1870. It would have been impossible to begin the allocation process without a reasonable estimate of how many Métis were owed land.

(b) The Survey

168 While the census was in progress, the Lieutenant Governor was also instructed to advise the government on a system for surveying the province. An order in council on April 25, 1871, adopted the survey method that Lieutenant Governor Archibald had proposed. The land needed to be surveyed before it was allocated and the Dominion lands survey was a formidable administrative challenge. The Court of Appeal acknowledged that "the evidence makes it clear that selection of the 1.4 million acres, all of which Canada was obliged [page695] to grant, would have been unworkable in the absence of a survey". The survey of the settlement belt was completed in the years 1871-74.

169 Once enough of the survey was complete, the Lieutenant Governor was able to take the next step in the process by selecting which townships would be distributed to the Métis. Lieutenant Governor Archibald received instructions to begin this process on July 17, 1872. The process of selecting the townships required the Lieutenant Governor to consult with the Métis of each parish to determine which areas should be selected. This consultation process took several months. Such consultation cannot be characterized as persistent inattention to the situation of the Métis.

170 While this process was taking place, there was a change in Lieutenant Governor. On December 31, 1871, Lieutenant Governor Archibald had resigned, realizing that he had lost Prime Minister Macdonald's confidence. He was not replaced, however, until the fall of 1872 when Lieutenant Governor Alexander Morris was sworn in. Archibald continued to serve until Morris took over. These types of changes in government inevitably lead to time being lost. Any such delay cannot, without more, be attributed to inattention.

171 By February 22, 1873, the preparatory work was sufficiently advanced that Lieutenant Governor Morris was able to begin drawing lots for the individual grants of 140 acres. He was able to draw lots at the rate of about 60 per hour.

(d) Events Giving Rise to the Second Allotment

172 Early in 1873, concern was expressed about whether it was proper for the heads of Métis families to share in the land grant. As a result, in April 1873, the federal government determined that a stricter interpretation of s. 31 should be adopted. Participation in the land grant was limited to the "children of half-breed heads of families" (trial, at [page696] para. 202). As a result of this change, the number of recipients was significantly reduced, which meant that larger allotments would be required to distribute the entire 1.4 million acres. On August 5, 1873, Lieutenant Governor Morris was instructed to cancel the previous allotments. On August 16, 1873, Morris began the second allotment.

173 This change meant that all of the drawing of the allotments up until that point had to be discarded. However, this was not the result of inattention. Rather, the federal government was taking care to make sure that the land grant was distributed correctly, to the right beneficiaries. The government had originally received advice from Lieutenant Governor Archibald that, in order to achieve the purposes of the land grant, it would be necessary to include the heads of the Métis families. While the Lieutenant Governor's interpretation was not consistent with the text of s. 31, it was an interpretation that was based on an effort to understand the purpose of the text and give meaning to the phrase "towards the extinguishment of the Indian Title to the lands". While the necessity of starting over no doubt resulted in some delay, it was not caused by inattention.

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(e) The Fall of Sir John A. Macdonald's Government

174 On November 5, 1873, Sir John A. Macdonald's government resigned. On January 22, 1874, an election was held. The opening of Parliament under Prime Minister Alexander Mackenzie was on March 26, 1874. David Laird became Minister of the Interior responsible for Dominion Lands. In the fall of 1874, Minister Laird went to Manitoba to gather information on all phases of the land question. According to Dr. Flanagan, Laird's notebook shows that he considered the appointment of a commission "to enumerate those entitled to land rights under the Manitoba Act, including the children's grant under s. 31" (evidence of Dr. Thomas Flanagan, A.R., vol. XXVI, at p. 11).

[page697]

(f) The Machar/Ryan Commission

175 An April 26, 1875 order in council established a commission to take applications for patents from those entitled to participate in the land grants under the Manitoba Act. By order in council on May 5, 1875, John Machar and Matthew Ryan were appointed commissioners and went to Manitoba in the summer of 1875. By the end of 1875, the commissioners had prepared returns for all parishes. These returns were approved and constituted what was seen as an authoritative list of those entitled to share in the land grant. However, because there was a concern that this list was not in fact complete, Ryan, having become a magistrate in the North-West Territories, and Donald Codd in the Dominion Lands Office, were authorized to receive further applications by Métis children or heads of families who had not been able to appear before the commission in 1875 because they had emigrated from Manitoba.

(g) The Patents

176 On August 31, 1877, the first batch of patents arrived in Winnipeg. After completion of the drawings for a parish, issue of patents usually took one to two years. In the interim, posters were prepared within a few weeks of the approval of the allotment to inform recipients as to the location of their allotments. Most of the patents were issued by 1881, however allotments continued to be approved for some years thereafter. Over 6,000 patents had to be issued under s. 31 of the Manitoba Act, on top of over 2,500 under s. 32.

(h) The Late Applications

177 In order to get their share of the land grant, the Métis had to file claims with the government. Because of the migration that was already underway, a certain number of these claims were filed late. While the government had anticipated some late claims, the number had been underestimated. As a [page698] result, claims continued to be filed after the 1.4 million acres had already been allocated. On April 20, 1885, an order in council granted the Métis children scrip rather than land, for those children who had submitted late applications.

178 The deadline for filing claims to the $240 scrip for children was May 1, 1886. However, it was not strictly enforced and the late applications continued to trickle in. The government extended the deadline at least four times. In the end, 993 scrips for $240 (worth $238,320) were issued to the Métis children or their heirs.

(2) Evidence of Delay

179 My colleagues point to a number of delays including errors in determining the class of beneficiaries, errors in estimating the number of beneficiaries, long delays in issuing patents and "unexplained periods of inaction". However, these administrative issues must be placed in their proper historical context. At the time, Manitoba was a thinly settled frontier province. There was limited transportation and communications infrastructure and the federal

Page72 36 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 civil service was small. The evidence of Dr. Flanagan was that

[e]ven with an omniscient, omnicompetent government, it would have taken years to implement the Manitoba Act. The objective requirements of carrying out surveys, sorting out claims, and responding to political protests could not be satisfied instantaneously. But, of course, the government of Canada was neither omniscient nor omnicompetent. [p. 171]

Given this context, some "delays" in fulfilling the Manitoba Act appear to have been inevitable.

180 The trial judge, at para. 1055, observed that Manitoba was "a fledgling province [that] had just come into existence". Manitoba was far removed from Ottawa, which was the source of the authority for administration of the grant. The trial judge noted, at paras. 155-56, that those involved in [page699] the land grants, including the Lieutenant Governor and the Manitoba legislature, had many challenges to contend with in the establishment of the new province:

Amongst other things, [the Lieutenant Governor] was to form a government on an interim basis which included selecting and appointing members of his Executive Council, selecting heads of departments of the government, and appointing the members of the Legislative Council. He was to organize electoral divisions, both provincially and federally. He was to undertake a census. He was to provide reports to the Federal Government as to the state of the laws and the system of taxation then existing in the province, and as to the state of the Indian tribes, their numbers, wants and claims, along with any suggestions he might have with reference to their protection and to improvement of their condition. He was to report generally on all aspects of the welfare of the province. Aside from the foregoing, he also received extensive instructions as to the undertakings which he should fulfill as Lieutenant Governor of the North-West Territories.

181 The majority attributes a three-year delay to the erroneous inclusion of the parents of the Métis children. However, much of the time before the cancellation of the first allotment was devoted to a survey that was used for all subsequent allotments. It is inappropriate to characterize this time as a delay. In my view, the delay stemming from the mistake about the beneficiaries amounts to less than a year, since the actual allocation under the first allotment did not begin until February 1873 and the allotment was cancelled on August 5, 1873.

182 My colleagues also point to an "inexplicable delay" from 1873 and 1875. This period included the time after the fall of Sir John A. Macdonald's government in November 1873. In my view, the change in government followed by the decision to proceed by way of a commission accounts for this time period. This Court must recognize the implications of such a change. Even today, changes in government have policy and practical impacts that delay implementation of government programs. Moreover, it does not [page700] constitute inattention to decide to proceed by way of commission in order to determine who was eligible to share in the land grant.

183 My colleagues criticize the failure of government officials to devote adequate time to the distribution of the allotments. However, there was no evidence tendered regarding the size of the civil service in Manitoba or in Ottawa during the 1870s and 1880s. We do not know how many federal or provincial civil servants there were or the extent of the work and functions they were required to perform. We do know that Lieutenant Governor Morris "wanted to move faster but was hampered by the limited time [Dominion Lands Agent] Donald Codd could devote to the enterprise" (Flanagan, at p. 58). Codd was only able to assist in drawing lots two days a week, until Ottawa sent someone to relieve him at the Lands Office. We have no evidence of what other obstacles there may have been impeding this process.

184 There was another changeover in the Lieutenant Governor from Morris to Joseph-Édouard Cauchon in 1877. While there was no doubt time lost as a result of the change itself, drawing of lots was also delayed as Cauchon was concerned about reports of dissatisfaction he had received. Unfortunately, over a hundred years later, the details of those reports are unclear. It is quite possible that they account for the second delay from 1878 to 1880.

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185 The trial judge did not make a finding of negligence. There was also no finding of bad faith. Indeed, the trial judge concluded that there was little evidence of complaint at the time the process was being conducted. The trial judge also made no finding that the relevant government officials lacked diligence or acted with a "pattern of inattention".

186 The majority states, at para. 107, that

a negligent act does not in itself establish failure to implement an obligation in the manner demanded by [page701] the honour of the Crown. On the other hand, a persistent pattern of inattention may do so if it frustrates the purpose of the constitutional obligation, particularly if it is not satisfactorily explained.

187 I agree, as my colleagues state, that a finding of lack of diligence requires a party to show more than just a negligent act. Here, the trial judge did not even find negligence. Despite this, the majority concludes that there was a lack of diligence. In my respectful opinion, that conclusion is inconsistent with the factual findings of the trial judge.

188 There are gaps in the record. My colleagues appear to rely on these gaps to support their view that the government failed to fulfill the obligations set out in s. 31. In my view, the government cannot, at this late date, be called upon to explain specific delays. This is an insurmountable challenge due to the passage of time and the paucity of the historical record.

189 If this land grant obligation had been made today, we would have expected a more expeditious procedure. However, the obligation was not undertaken by the present day federal government. It was undertaken by the government over 130 years ago, at a time when the government and the country were newly formed and struggling to become established. We cannot hold that government to today's standards when considering circumstances that arose under very different conditions. Indeed the need to avoid the application of a modern standard of conduct to historical circumstances has been noted by this Court in the past: Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 121. To the extent there was delay, on a fair review of the available evidence and findings of the trial judge, it cannot be said to be the result of inattention, much less a persistent pattern of inattention.

B. Effect of the Delay on the Métis

190 The majority attributes a number of negative consequences to the length of time that it took for the land grants to be made. In my respectful [page702] view, in so doing they have departed from the factual findings made by the trial judge and drawn inferences that are not supported by the evidence. While the length of time that it took for the land to be distributed may have been frustrating for some of the Métis, it was not the cause of every negative experience that followed for them.

(1) Departure From the Red River Settlement

191 The majority suggests that the marginalization of the Métis and their departure from the Red River Settlement may have been caused by the length of time it took to issue the land grants. This is not supported by the findings of the trial judge or the record. There were other factors at play.

192 The trial judge considered the historical evidence on this point and concluded:

As the buffalo robe trade was developing strength, agriculture experienced several years of bad crops. From 1844 to 1848, only once, 1845, was the harvest sufficient to feed the Settlement. By the fall of 1848, the Settlement was bordering on starvation. The 1850s brought better crops, but the 1860s were again very poor. The combination of a strong buffalo robe market and very poor crops led to increased abandonment of agriculture by the Métis and some emigration from the Settlement to points west following the buffalo. By

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1869, the buffalo were so far west and south of Red River that the buffalo hunt no longer originated in the Settlement. [Emphasis added; para. 50.]

193 Thus, it is clear that emigration from the Red River Settlement began before the s. 31 land grants were contemplated due to the economic forces of declining agriculture and location of the buffalo hunt. The westward retreat of the buffalo herds was a critical factor. The buffalo robe trade was the Métis' primary livelihood and one of the backbones of their economy. This indicates that the Métis' migration was motivated by economic forces, and that the government's actions or inactions were not the sole or even the predominant cause of this phenomenon.

[page703]

194 The majority also attributes to the delay the Métis' inability to trade land to obtain contiguous parcels. With respect, the trial judge concluded that there was no general intention to create a Métis land base and thus, the ability to trade land to obtain contiguous parcels was never one of the objectives of the land grant. The trial judge concluded that only some Métis wanted to obtain contiguous parcels; others preferred to obtain the best land possible. This factual finding is entitled to deference.

195 Finally, my colleagues quote Deputy Minister of the Interior, A. M. Burgess in an effort to suggest that there was general agreement about the existence of the delay and its supposed harmful consequences. Contrary to the majority's suggestions, Burgess's statements cannot be read as a general commentary on the entire land grant process in order to indict the federal government for inattention. Mr. Burgess stated that he was "heartily sick" of the "disgraceful delay which is taking place in issuing patents" (A.R., vol. XXI, at pp. 123-24 (emphasis added)). The issuing of the patents, and any delay that occurred in that process, represented only one aspect of the administrative challenge posed by the land grants. Mr. Burgess also wrote that he had been working night and day on those patents, hardly evidence of a pattern of inattention.

(2) Price Obtained for the Land

196 My colleagues conclude that what they say was a 10-year delay in implementation of the land grants increased sales to speculators. They imply that sales to speculators were harmful to Métis interests. While I accept the finding of the trial judge that some sales were made to speculators for improvident prices, not all sales were bad bargains for the Métis.

197 The trial judge also found that there was evidence of sales which occurred at market prices, sales to people who were not speculators and sales [page704] which were not the result of pressure or conduct of speculators. The trial judge held:

Overall, while there are many examples of what appear to be individuals having been taken advantage of, it is difficult to assess at this late date whether that was so or whether the price obtained was a fair price given the vagaries of what it was that was being sold and the consequent market value of that. [para. 1057]

It appears that some Métis got higher prices and some Métis got lower prices for their land. For the Métis community as a whole, this may have been a "zero sum game". At this stage it would be entirely speculative to conclude that there was adverse impact on the Métis community as a whole as a result of land sales.

198 My colleagues suggest that as time passed, the possibility grew that the land was becoming less valuable. In my view, this conclusion is not supported by the evidence. In fact, 1880 to 1882 were boom years, where the land would have become even more valuable. The Court of Appeal noted that the vast majority of sales took place between 1877 and 1883. It is incongruous for the Métis descendants as a group to come forward ostensibly on behalf of some of their ancestors who may have benefitted from the delay.

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(3) Scrip

199 The majority acknowledges that it was unavoidable that the land would be distributed based on an estimate of the number of eligible Métis and that the estimate would be inaccurate to some degree. They also acknowledge that the issuance of scrip was a reasonable mechanism to provide the benefit to which the excluded children were entitled. However, they find that

the delayed issuance of scrip redeemable for significantly less land than was provided to the other recipients further demonstrates the persistent pattern of inattention ... . [para. 123]

200 I cannot agree that the delayed issuance of scrip demonstrates a persistent pattern of inattention by the government. Rather, the issuance of scrip [page705] was equally if not more consistent with the late filing of applications - over which the government had little control - and the corresponding underestimate in the number of eligible recipients. That is hardly evidence of government inattention.

201 If there had been no delay and the accurate number of Métis children had been known from the outset, each child would have received less land than they actually did because the recipients of scrip would have been included in the original division. In this sense, then, Canada overfulfilled its obligations under the Manitoba Act by providing scrip after the 1.4 million acres were exhausted. The issuance of scrip reflected Canada's commitment to meaningful fulfillment of the obligation, not inattention.

C. Conclusion on the Facts

202 Manifestly, the trial judge made findings of delay. Nonetheless these findings and the evidence do not reveal a pattern of inattention. They do not reveal a lack of diligence. Nor do they reveal that the purposes of the land grant were frustrated. That alone would nullify any claim the Métis might have based on a breach of duty derived from the honour of the Crown, assuming that any such duty exists a matter to which I now turn.

III. Analysis

A. Honour of the Crown

203 In their reasons, my colleagues develop a new duty derived from the honour of the Crown: a duty to diligently fulfill solemn obligations. Earlier cases spoke mostly to the manner in which courts should interpret treaties and statutory provisions and not to the manner in which governments should execute them. While Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, explicitly leaves the door open to finding additional new Crown duties in the [page706] future, this is not an appropriate case to develop such a duty.

204 A duty of diligent fulfillment may well prove to be an appropriate expansion of Crown obligations. However, the duty crafted in the majority reasons is problematic. The threshold test for what constitutes a solemn obligation is unclear. More fundamentally, however, the scope and definition of this new duty created by the majority were not explored by the parties in their submissions in this Court nor were they canvassed in the courts below, making the expansion of the common law in this way inappropriate on appeal to this Court.

(1) Ambiguity as to What Constitutes a Solemn Obligation

205 In order to trigger this new duty of diligent fulfillment, there must first be a "solemn obligation". But no clear framework is provided for when an obligation rises to this "solemn" level such that it triggers the duty of diligent implementation. Furthermore, the majority reasons are unclear as to what types of legal documents will give rise to solemn obligations: Is it only provisions in the Constitution or does it also include treaties? In para. 75, the majority appears to restrict their conclusion on diligence to constitutional obligations to Aboriginal peoples. But, in para. 79, they note that the duty applies whether the obligation arises in a treaty or in the Constitution. This further reflects Page76 40 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 the inappropriateness of fashioning new common law rights and obligations without the benefit of consideration by the trial judge or Court of Appeal and in particular without the benefit of argument before this Court.

206 This difficulty is manifested in other aspects of the majority reasons. My colleagues accept that s. 31 was a constitutional provision (para. 94). Adopting the narrowest reading of their holding as to what documents trigger solemn obligations - [page707] one limited to constitutional provisions - it would seem such obligations would be triggered here. The majority nonetheless proceeds to consider how s. 31 of the Manitoba Act is similar to a treaty (para. 92). It thus appears that s. 31 engages the honour of the Crown, not just because of its constitutional nature, but also because of its treaty-like character.

207 The idea that certain sections of the Constitution should be interpreted differently or should impose higher obligations on the government than other sections because some of these sections can be analogized to treaties is novel to say the least. I reject the notion that when the government undertakes a constitutional obligation, how it must perform that obligation depends on how closely it resembles a treaty.

208 Setting aside the issue of what types of legal documents might contain solemn obligations, there is also uncertainty in the majority's reasons as to which obligations contained in those documents will trigger this duty. My colleagues assert that for the honour of the Crown to be engaged, the obligation must be specifically owed to an Aboriginal group. While I agree that this is clearly a requirement for engaging the honour of the Crown, this alone cannot be sufficient. As the majority notes, in the Aboriginal context, a fiduciary duty can arise as the result of the Crown assuming discretionary control over a specific Aboriginal interest. Reducing honour of the Crown to a test about whether or not an obligation is owed simply to an Aboriginal group risks making claims under the honour of the Crown into "fiduciary duty-light". This new watered down cause of action would permit a claimant who is unable to prove a specific Aboriginal interest to ground a fiduciary duty, to still be able to seek relief so long as the promise was made to an Aboriginal group. Moreover, as the majority acknowledges at para. 108, this new duty can be breached as a result of actions that would not rise to the level required to constitute a breach of fiduciary duty. This new duty, with a broader scope [page708] of application and a lower threshold for breach, is a significant expansion of Crown liability.

(2) Absence of Submissions or Lower Court Decisions on This Issue

209 Even if one were not concerned with the issues identified above, this case was never argued based on this specific duty of diligent fulfillment of solemn obligations arising from the honour of the Crown. The parties made no submissions on a duty of diligent implementation of solemn obligations. The Métis never provided argument as to why the honour of the Crown should be engaged here, what duty it should impose on these facts or how that duty was not fulfilled. As a result, Canada and Manitoba have not had an opportunity to respond on any of these points. This Court does not have the benefit of the necessary opposing perspectives which lie at the heart of our adversarial system.

210 While there is no doubt that the phrase "honour of the Crown" was used in argument before this Court, no submissions of any substance were made as to what duty the honour of the Crown should have engaged on these facts beyond a fiduciary duty, nor were there any submissions on a duty of diligent implementation.

211 During the pleadings phase, honour of the Crown was not mentioned in the Métis' statement of claim and was mentioned only once in passing in their response to particulars (A.R., vol. IV, at p. 110). Before this Court, the Métis referred to honour of the Crown four times in their factum, but never alleged that there was a duty of diligent fulfillment of solemn obligations. Instead, two of the references to the honour of the Crown are contained in their summary of the points in issue and in their [page709] requested order. They also briefly assert that the honour of the Crown required the government to take a liberal approach to interpreting s. 32 and that the honour of the Crown could be used to show one of the elements of a fiduciary obligation under s. 32. They never provided submissions as to what constitutes a solemn obligation nor did they allege specifically that the honour of the Crown required due diligence in the implementation of such solemn obligations. In oral argument before this Court, the only submissions

Page77 41 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 made on honour of the Crown were supplied by the Métis Nation of Alberta and the Attorney General for Saskatchewan. Neither of these interveners, nor the Métis themselves, made submissions about diligence, a new legal test based on patterns of inattention, or solemn obligations.

212 Delineating the boundaries of new legal concepts is prudently done with the benefit of a full record from the courts below and submissions from both parties. Absent these differing perspectives and analysis by the courts below, it is perilous for this Court to embark upon the creation of a new duty under the common law. I believe this concern is manifestly made apparent by the ambiguity in the majority reasons about what legal documents can give rise to solemn obligations.

213 Moreover, it is particularly unsatisfactory to impose a new duty upon a litigant without giving that party an opportunity to make submissions as to the validity or scope of the duty. This inroad on due process is no less concerning when the party to the proceedings is the government. As a result of the majority's reasons, the government's liability to Aboriginal peoples has the potential to be expanded in unforeseen ways. The Crown has not had the opportunity to address what impact this new duty might have on its ability to enter into treaties or make commitments to Aboriginal peoples. It is inappropriate to impose duties on any party, including the government, without giving that party an opportunity to make arguments about the impact that such liability might have. In the case of the government, where the new duty is constitutionally derived and therefore cannot be refined or modified [page710] through ongoing dialogue with Parliament, it is of very serious concern.

214 This Court has always been wary of dramatic changes in the law: see Watkins v. Olafson, [1989] 2 S.C.R. 750, at p. 760. In that case, this Court concluded that courts are not well placed to know all of the problems with the current law and more importantly are not able to predict what problems will be associated with the proposed expansion. Courts are not always aware of all of the policy and economic consequences that might flow from the proposed expansion. While this is not a case about the appropriate role for the courts to play relative to the legislature, these same problems are apparent on the facts of this case. Without substantive submissions from the parties, it is difficult for this Court to know how this new duty will operate and what consequences might flow from it. For all these reasons, it is inappropriate to create this new duty as a result of this appeal.

B. Limitations

215 Even if one accepts that the honour of the Crown was engaged, that it requires the diligent implementation of s. 31, and that this duty was not fulfilled, any claims arising from such a cause of action have long been barred by statutes of limitations. The majority has attempted to circumvent the application of these limitations periods by characterizing the claim as a fundamental constitutional grievance arising from an "ongoing rift in the national fabric" (para. 140). With respect, there is no legal or principled basis for this exception to validly enacted limitations statutes adopted by the legislature. In my view, these claims must be rejected on the basis that they are time- barred.

(1) Decisions of the Courts Below

216 The present action was commenced on April 15, 1981. The trial judge held that, except for the claims related to the constitutional validity of the Manitoba statutes, there was no question that the [page711] Métis' action was outside the statutorily mandated limitation period and he would have dismissed the action on that basis.

217 The trial judge noted the applicable limitations legislation would have captured these claims. He held that the Métis at the time had knowledge of their rights under s. 31 of the Manitoba Act and were engaged in litigation to enforce other rights. From that he inferred that the Métis "chose not to challenge or litigate in respect of s. 31 and s. 32 knowing of the sections, of what those sections were to provide them, and of their rights to litigate" (para. 446). The trial judge concluded that the limitations legislation applied and barred the claims.

218 In the Court of Appeal, Scott C.J.M. noted the trial judge's finding that the Métis knew of their rights and their

Page78 42 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 entitlement to sue more than six years prior to April 15, 1981. The Court of Appeal concluded that the trial judge's factual findings regarding the Métis' knowledge of their rights were entitled to deference. Scott C.J.M. affirmed the trial judge's ruling that the Métis' claim for breach of fiduciary duty with respect to both s. 31 and s. 32 of the Act was statute-barred on the basis that the Métis had not demonstrated that the trial judge misapplied the law or committed palpable and overriding error in arriving at this conclusion.

(2) Limitations Legislation in Manitoba

219 While limitations periods have existed in Manitoba continuously since 1870 by virtue of the application of the laws of England, Manitoba first enacted its own limitations legislation in 1931. The Limitation of Actions Act, 1931, S.M. 1931, c. 30, provided for a six-year limitation period for "actions grounded on accident, mistake or other equitable ground of relief" (s. 3(1)(i)).

220 There was also a six-year limitation period for any other action not specifically provided for in [page712] that Act or any other act (s. 3(1)(l)). The Limitation of Actions Act, 1931 provided that it applied to "all causes of action whether the same arose before or after the coming into force of this Act" (s. 42). Similar provisions have been contained in every subsequent limitations statute enacted in Manitoba.

221 In my view, the effect of these provisions is that the Métis' claim, whether framed as a breach of fiduciary duty or as breach of some duty derived from honour of the Crown, has been statute-barred since at least 1937.

222 My colleagues are of the view that since this claim is no longer based on breach of fiduciary duty, s. 3(1)(i) of The Limitation of Actions Act, 1931 does not apply to bar these claims. Regardless of how the claims are classified, however, the basket clause of The Limitation of Actions Act, 1931 contained in s. 3(1)(l) would apply to bar the claim since that section is intended to ensure that the six-year limitation period covers any and all causes of action not otherwise provided for by the Act.

223 This claim for a breach of the duty of diligent fulfillment of solemn obligations is a "cause of action" and therefore s. 3(1)(l) bars it.

(3) Limitations and Constitutional Claims

224 My colleagues assert that limitations legislation cannot apply to declarations on the constitutionality of Crown conduct. They also state that limitations acts cannot bar claims that the Crown did not act honourably in implementing a constitutional obligation. With respect, these statements are novel. This Court has never recognized a general exception from limitations legislation for constitutionally derived claims. Rather, this Court has consistently held that limitations periods apply to factual claims with constitutional elements.

[page713]

225 The majority notes that limitations periods do not apply to prevent a court from declaring a statute unconstitutional, citing Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; and Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138. While I agree, the constitutional validity of statutes is not at issue in this case. Instead, this is a case about factual issues and alleged breaches of obligations which have always been subject to limitations periods, including on the facts of Ravndahl and Kingstreet.

226 Kingstreet and Ravndahl make clear that there is an exception to the application of limitations periods where a party seeks a declaration that a statute is constitutionally invalid. Here, my colleagues have concluded that the Métis' claim about unconstitutional statutes is moot. The remaining declaration sought by the Métis has nothing to do with the constitutional validity of a statute. Page79 43 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

227 Instead, what the Métis seek in this case is like the personal remedies that the applicants sought in Kingstreet and Ravndahl. The Métis are asking this Court to rule on a factual dispute about how lands were distributed over 130 years ago. While they are not asking for a monetary remedy, they are asking for their circumstances and the specific facts of the land grants to be assessed. As this Court said in Ravndahl:

Personal claims for constitutional relief are claims brought as an individual qua individual for a personal remedy. As will be discussed below, personal claims in this sense must be distinguished from claims which may enure to affected persons generally under an action for a declaration that a law is unconstitutional. [para. 16]

These claims are made by individual Métis and their organized representatives. The claims do not arise from a law which is unconstitutional. Rather, they arise from individual factual circumstances. As [page714] a result, the rule in Kingstreet and Ravndahl that individual factual claims are barred by limitations periods applies to bar suit in this case.

(4) Policy Rationale for Limitations Periods Applies to These Claims

228 The majority finds that the issue in this case is of such fundamental importance to the reconciliation of the Métis peoples with Canadian sovereignty that invoking a limitations period would be inappropriate. They further conclude that unless this claim is resolved there will be an "ongoing rift in the national fabric".

229 In my view, it is inappropriate to judicially eliminate statutory limitations periods for these claims. Limitations periods are set by the legislatures and are not discretionary. While limitations periods do not apply to claims that seek to strike down statutes as unconstitutional, as I noted above, this is not such a claim.

230 Limitations statutes are driven by specific policy choices of the legislatures. The exceptions in such statutes are also grounded in policy choices made by legislatures. To create a new judicial exception for those fundamental constitutional claims that arise from rifts in the national fabric is to engage directly in social policy, which is not an appropriate role for the courts.

231 Limitations acts have always been guided by policy. In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, this Court identified three groups of policies underlying limitations statutes: those concerning certainty, evidentiary issues, and diligence.

232 The certainty rationale is connected with the concept of repose: "There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations" (M. (K.) v. M. (H.), at p. 29).

[page715]

233 The evidentiary issues were further expanded upon in Wewaykum, at para. 121:

Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change. Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards of today.

234 Finally, the diligence rationale encourages plaintiffs to not sleep on their rights. An aspect of this concept is the idea that "claims, which are valid, are not usually allowed to remain neglected" (Riddlesbarger v. Hartford Insurance Co., 74 U.S. (7 Wall.) 386 (1868), at p. 390, cited in United States v. Marion, 404 U.S. 307 (1971), at p. 322, footnote 14).

Page80 44 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

235 From these three rationales, limitations law has evolved to include a variety of exceptions which reflect further refinements in the policies that find expression in statutes of limitations. Older limitations acts contained few exceptions but modern statutes recognize certain situations where the strict application of limitations periods would lead to unfairness. For instance, while limitations acts have always included exceptions for minors, exceptions based on capacity have been expanded to recognize claimants with a variety of disabilities. Exceptions have also been created based on the principle of discoverability. However, even as those exceptions have been broadened or added, legislatures have created a counterbalance in the form of ultimate limitations periods which operate to provide final certainty and clarity. None of the legislatively created exceptions, nor their rationales, apply to this case.

(a) Discoverability

236 The discoverability principle has its origins in judicial interpretations of when a cause of action "accrues". Discoverability was described [page716] in the English case of Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] 1 Q.B. 858 (C.A.), at p. 868, where Lord Denning, M.R. stated:

... when building work is badly done and covered up the cause of action does not accrue, and time does not begin to run, until such time as the plaintiff discovers that it has done damage, or ought, with reasonable diligence, to have discovered it.

237 While this judicial discoverability rule was subsequently rejected by the House of Lords, Canadian legislatures moved to amend their limitations acts to take into account the fact that plaintiffs might not always be aware of the facts underlying a claim right away. This evolution was described by this Court in Kamloops v. Nielsen, [1984] 2 S.C.R. 2, at pp. 40-42, where it was noted that the British Columbia legislature had amended its limitations legislation to give effect to an earlier judicial decision which postponed "the running of time until the acquisition of knowledge or means of knowledge of the facts giving rise to the cause of action".

238 The discoverability principle is grounded in the idea that, even if there is no active concealment on the part of the defendant giving rise to other ways of tolling limitations periods, the facts underlying a cause of action may still not be accessible to the plaintiff for some time. There is a potential injustice that can arise where a claim becomes statute-barred before a plaintiff was aware of its existence (M. (K.) v. M. (H.), at p. 33).

239 The discoverability principle has been applied in a variety of contexts. In Kamloops, the claim arose from negligent construction of the foundation of a house, where there was evidence that the defect was not visible until long after the house was completed. In M. (K.) v. M. (H.), discoverability was used to toll the limitation period until such time as the victim of childhood incest was able to discover "the connection between the harm she has suffered and her childhood history" (p. 35). In Peixeiro v. Haberman, [1997] 3 S.C.R. 549, [page717] at para. 43, this Court delayed the start of a limitation period under Ontario's no-fault insurance scheme until the plaintiff had knowledge of the extent of injuries that would allow him to make a claim within the scheme.

240 The link in these cases is that the plaintiffs were unaware of the specific damage or were not aware of the link between the damage and the actions of the defendant. Limitations law permits exceptions grounded in lack of knowledge of the facts underlying the claim and the connection between those facts, the actions of the defendant and the harm suffered by the plaintiff.

241 The Métis can make no such claim. They were not unaware of the length of time that it took for the land to be distributed at the time that the distribution was occurring. The trial judge found that representations to the federal government by the Legislative Council and Assembly of Manitoba were made about the length of time the process was taking as early as 1872. At the time, a significant proportion of the Manitoba legislature was Métis. Nor can they claim that they were unaware of the connection between the length of time that the distribution was taking and the actions of the government, since the trial judge found that the federal government responded to this 1872

Page81 45 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 complaint by reiterating that the selection and allocation of land was within the sole control of Canada. Thus, the exception that the majority has created is not consistent even at the level of public policy with the discoverability exceptions that have been created by legislatures.

242 I would also note that while the history of the discoverability exception indicates that there is room for judicial interpretation in limitations law, that interpretation must be grounded in the actual words of the statute. In this case, the majority has not linked their new exception to any aspect of the text of the Act.

[page718]

(b) Disability

243 Tolling limitations periods for minors or those with disabilities is another long-standing exception to the general limitation rules. Section 6 of The Limitation of Actions Act, 1931 provided that for certain types of claims, a person under a disability had up to two years after the end of that disability to bring an action. These provisions have grown over time. The Limitation of Actions Act, C.C.S.M. c. L150, currently in force in Manitoba provides for tolling where a person is a minor or where a person is "in fact incapable of the management of his affairs because of disease or impairment of his physical or mental condition" (s. 7).

244 Incapacity due to disability has also been used as the legislative framework for tolling limitations periods for victims of sexual assault by a trusted person or person in authority. The Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 10(2), creates a presumption that the person claiming to have been assaulted was "incapable of commencing the proceeding earlier than it was commenced if at the time of the assault one of the parties to the assault had an intimate relationship with the person or was someone on whom the person was dependent, whether financially or otherwise". This presumption can be rebutted.

245 A victim who suffered sexual assault at the hands of a person in a position of trust, is said to be incapable of bringing a claim because of a variety of factors including

the nature of the act (personal violation), the perpetrator's position of power over the victim and the abuse of that position act effectively to silence the victim. Moreover, until recently, many victims of sexual assault were subject to social disapproval based on the perception that they were somehow to blame.

[page719]

(Ontario, Limitations Act Consultation Group, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (1991), at p. 20)

246 If the discoverability rule has its origins in incapacity to litigate because of lack of knowledge of particular facts underlying the claim such as the damage or the relationship between the damage and the defendant, the exceptions for disability and minors are grounded in a broader view of incapacity:

Those under legal disability are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters.

(Murphy v. Welsh, [1993] 2 S.C.R. 1069, at p. 1080)

247 The Métis were never in a position where they were under a legal disability. As the trial judge found, the Métis were full citizens of Manitoba who wanted to be treated the same as other Canadians. While some sought to entail the s. 31 lands to prevent the children from selling, this view was by no means unanimous. The Métis had always owned land individually and been free to sell it. It is paternalistic to suggest from our modern perspective that the Page82 46 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Métis of the 1870s did not know their rights and remedies. This type of paternalism would have been an anathema to the Métis of the time who sought to be treated as equals.

248 The power imbalance that justifies the presumption of incapacity for victims of certain types of sexual assaults is also inapplicable here. Section 31 was enacted because of the strength of the Métis community, not because the community was weak or vulnerable or subject to government abuse. While their power in Manitoba declined with the influx of settlers, it is revisionist to suggest that they were in such a weak position in relation to the federal government that the government was able to "silence" them (as described above in para. 245). While many of the recipients of the land grants [page720] were minors, the findings of the trial judge make clear that the children's parents, adults who could have acted on their children's behalf, knew of their rights. The policy that underlies the exception for minors and those with disabilities does not track onto the experience of the Métis.

249 As a counterweight to newer exceptions like discoverability and expanded disability provisions, legislatures have also adopted ultimate limitations periods. The purpose of these ultimate limitations periods is to provide true repose for defendants, even against undiscovered claims. Even if a claim is not discovered, meaning that the basic limitations period has not been engaged, an ultimate limitation period can bar a claim. While basic limitations periods are often in the range of two to six years, ultimate limitations periods are usually 10 to 30 years long.

250 Manitoba has had an ultimate limitations period of 30 years since 1980 (An Act to Amend The Limitation of Actions Act, S.M. 1980, c. 28, s. 3). This ultimate limitation period continues in the current act as s. 14(4). Ultimate limitations periods are also in force in many other provinces. The purpose of these ultimate limitations periods was described by the Manitoba Law Reform Commission in their 2010 report on limitations:

In order to address the important repose aspect of limitations, there must be some ability to ensure that, after a certain period of time, no action may be brought regardless of the claim's discoverability of late occurring damage.

(Limitations (2010), at p. 26)

251 As ultimate limitations periods were introduced, many provincial legislatures chose to effectively exempt certain types of Aboriginal claims from them by grandfathering Aboriginal claims into the former acts, which did not contain ultimate limitations periods. This was done in [page721] Alberta and Ontario, and will soon be done in British Columbia: Limitations Act, R.S.A. 2000, c. L-12, s. 13; Ontario Limitations Act, 2002, s. 2; Limitation Act, S.B.C. 2012, c. 13, s. 2 (not yet in force). In my view, this is evidence that legislatures are alive to the issues posed by Aboriginal claims and limitations periods and the choice of whether or not to exempt such claims from basic and ultimate limitations periods is one that belongs to the legislature.

252 There is a fine balance to be struck between expanded ways to toll limitations periods through discovery and incapacity and a strict ultimate limitations period. It is not the place of the courts to tamper with the selection that each of the legislatures and Parliament have chosen by creating a broad general exception for claims that courts find to be fundamental or serious. The type of exception proposed by my colleagues is antithetical to the careful policy development that characterizes this area of the law. The courts are ill-suited for doing this type of work which must be grounded in a clear understanding of how each aspect of the limitations regime works together to produce a fair result.

253 If Parliament or provincial legislatures wanted to exclude factual claims with a constitutional component from limitations periods, then they could do so by statute. As they have not chosen to make an exception for the type of declaration that the Métis seek in this case, it is inappropriate for this Court to do so.

(d) Role of Reconciliation Page83 47 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

254 My colleagues suggest that the above rationales have little role to play in an Aboriginal context, where the goal of reconciliation must [page722] be given priority. In so doing, the majority's reasons call into question this Court's decisions in Wewaykum, at para. 121, and more recently in Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372. In Lameman, this Court specifically stated that policy rationales that support limitations periods "appl[y] as much to Aboriginal claims as to other claims" (para. 13 (emphasis added)). Without doing so explicitly, it appears that the majority has departed from the legal certainty created by Wewaykum and Lameman, in favour of an approach where "reconciliation" must be given priority.

255 Moreover, the legal framework of this claim is very different from a claim based on an Aboriginal right. Aboriginal rights are protected from extinguishment under s. 35 of the Constitution Act, 1982. Aboriginal rights, therefore, constitute ongoing legal entitlements. By contrast, the claims in this case concern a constitutional obligation that was fulfilled over 100 years ago.

(5) Manitoba Legislation Does Not Exempt Declarations From Limitation Periods

256 My colleagues assert that limitations periods should not apply to claims for failure to diligently fulfill solemn obligations arising from the Constitution where the only remedy sought is a declaration. Respectfully, this is a choice to be made by the legislature. In Manitoba, limitations legislation has never contained an exception for declarations. This Court is not empowered to create one.

257 In some other provinces the legislation governing limitations periods provides for specific exceptions where the only remedy sought is a declaration without any consequential relief: Alberta Limitations Act, s. 1(i)(i); Ontario Limitations Act, 2002, s. 16(1)(a); British Columbia Limitation Act, s. 2(1)(d) (not yet in force).

[page723]

258 These exceptions are contained within the finely tailored legislative schemes as described above. In those provinces where recent amendments have provided for declaratory judgments to be exempt from limitations periods, the limitations legislation also contains provisions that restrict the retroactive application of those exemptions. For example, in Ontario, if a claim was not started before the exemption was enacted and the limitation period under the former act had elapsed, the creation of the new exemption from limitation periods for declaratory judgments would not revive those previously barred claims, even if the only remedy sought was a declaration: Ontario Limitations Act, 2002, s. 24. Thus, even where the legislature has seen fit to exempt declarations from limitation periods, it has not done so retroactively.

259 This is unsurprising since changes to limitations periods are rarely made retroactively, because to do so would prejudice those who relied upon those limitations periods in organizing their affairs. Retroactive changes to limitations law mean that potential defendants who were under the impression that claims against them were time- barred would be again exposed to the threat of litigation. In contrast, when a limitations period is changed prospectively, potential defendants were never in a position to rely on a limitation period and would always be on notice as to the possibility of litigation. In effect, if limitations periods were changed retroactively, the certainty rationale would be significantly compromised by depriving defendants of the benefit of limitations protection that they had relied upon up until the change in the law.

260 The issue of whether to exempt declaratory judgments from limitations periods is one that has been canvassed recently in Manitoba. In 2010, the Manitoba Law Reform Commission recommended that an exception be created for declaratory judgments, but this recommendation has not been implemented. In making that recommendation, the Manitoba Law Reform Commission recognized that, while declaratory judgments do not compel [page724] the Crown to act in a particular way, there is still a risk that an exception for declaratory remedies might "undermin[e] the principles that support the establishment of limitations" (Limitations, at p. 33). This is because obtaining a

Page84 48 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 declaration can be the first step in obtaining an additional remedy, one that would otherwise be barred by a limitation period.

261 The Manitoba Law Reform Commission noted that this risk was particularly acute in the case of declarations made in respect of the Crown, since there is authority to support the proposition that the Crown does not generally ignore a court declaration (p. 32). While the Crown response to a declaration is not always satisfactory to everyone, the possibility that the declaration will lead to some additional extra-judicial remedy is real. This means that while a declaratory order without consequential relief might appear to have little impact on the certainty created by limitations periods, the result for litigants is not necessarily as benign. There is a risk that a declaratory judgment will lead to additional remedies, even when not ordered by the courts.

262 In my view, that risk is fully realized in this case. As my colleagues note, the Métis do not seek a declaration as an end in itself. Rather, they plan to use the declaration to obtain redress in extra-judicial negotiations with the Crown. This result undermines the certainty rationale for limitation periods by exposing the Crown to an obligation long after the limitation period expired. By exempting the declaration sought by the Métis from limitation periods, the majority has inappropriately stepped into the shoes of the Manitoba legislature.

(6) Effect of Exempting These Claims From Limitations Periods

263 The majority has removed these claims by the Métis from the ordinary limitations regime by arguing that these claims are fundamental [page725] and that a failure to address them perpetuates an "ongoing rift in the national fabric". With respect, the determination that a particular historical injustice amounts to a rift in the national fabric is a political or sociological question. It is not a legally cognizable reason to exempt a claim from the application of limitations periods. Moreover, it leaves the courts in the position of having to assess whether any claim made is sufficiently fundamental to permit them to address it on its merits despite its staleness.

264 Over the course of Canadian history, there have been instances where the Canadian government has acted in ways that we would now consider inappropriate, offensive or even appalling. The policy choice of how to handle these historical circumstances depends on a variety of factors and is therefore one that is best left to Parliament or the government, which have in recent years acted in a variety of ways, including apologies and compensation schemes, to make amends for certain historical wrongs.

265 The reasons of the majority would now have the courts take on a role in respect of these political and social controversies. Where the parties ask for a declaration only and link it to some constitutional principle, the courts will now be empowered to decide those cases no matter how long ago the actions and facts that gave rise to the claim occurred. In my view, this has the potential to open the court system to a whole host of historical social policy claims. While the resolution of historical injustice is clearly an admirable goal, the creation of a judicial exemption from limitations periods for such claims is not an appropriate solution.

266 This exception creates the possibility of indeterminate liability for the Crown, since claims under this new duty will apparently be possible forever. Courts have always been wary of the possibility of indeterminate liability. In Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931), at p. 444, Cardozo C.J. expressed concern about the creation of "liability in an indeterminate amount for an indeterminate time to an indeterminate class". This [page726] concern was recognized, albeit more with respect to indeterminate amounts and classes, by this Court in Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737, at paras. 59-66. In my view, as this exception from limitations periods creates liability for an indeterminate time, it is not an appropriate step for this Court to take.

267 The exemption proposed by my colleagues is not aligned with any of the principles that underlie the limitations scheme. It is instead an exception that is virtually limitless in scope, relying, as it does, on a social policy appeal to restore our national fabric rather than accepted legal principles. It cannot be characterized as the type of incremental change that supports the development and evolution of the common law and it is therefore not an

Page85 49 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 appropriate change for the courts to make.

(7) The Crown Is Entitled to the Benefit of Limitations Periods

268 Limitations periods apply to the government as they do to all other litigants. At common law, limitations periods could be used by the Crown to defend against actions, but could not be used by defendants pursued by the Crown (P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at pp. 98-99). This is no longer the case as the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 32, specifically provides that provincial limitations periods apply to claims by and against the Crown:

32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.

[page727]

The effect of this section is that the provincial limitations legislation in Manitoba applies to the federal Crown. Moreover, even absent this Act, the common law provided that it was possible for the Crown to rely on a limitations period to defend against claims (Hogg, Monahan and Wright, at p. 99).

269 The application of limitations periods to claims against the Crown is clear from the cases generally and also specifically in the area of Aboriginal claims. For example, in both Wewaykum and Lameman, this Court applied a limitations period to bar an Aboriginal claim against the government.

270 Application of limitations periods to the Crown benefits the legal system by creating certainty and predictability. It also serves to protect society at large by ensuring that claims against the Crown are made in a timely fashion so that the Crown is able to defend itself adequately.

271 The relevance of limitations periods to claims against the Crown can clearly be seen on the facts of this case. My colleagues rely on "unexplained periods of inaction" and "inexplicable delay" to support their assertion that there is a pattern of indifference. In my view, it cannot reasonably be ruled out that, had this claim been brought in a timely fashion, the Crown might have been able to explain the length of time that it took to allocate the land to the satisfaction of a court. The Crown can no longer bring evidence from the people involved and the historical record is full of gaps. This case is the quintessential example of the need for limitations periods.

C. Laches

272 In addition to being barred by the limitation period, these claims are subject to laches. Laches is an equitable doctrine that requires a claimant in equity to prosecute his or her claim without undue delay. In Canada, there are two recognized branches to the doctrine of laches: delays that result from [page728] acquiescence or delays that result in circumstances that make prosecution of the action unreasonable (M. (K.) v. M. (H.), at pp. 76-77, citing Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, at pp. 239-40).

273 The majority finds that the Métis cannot have acquiesced because of their marginalized position in society and the government's role in bringing about that marginalization. They further find that the government did not alter its position in reasonable reliance on the status quo, nor would disturbing the current situation give rise to an injustice. Finally, they conclude that given the constitutional aspect of the Métis' claim, it would be inappropriate in any event to apply the doctrine of laches.

274 Respectfully, I cannot agree. The Métis have knowingly delayed their claim by over a hundred years and in so Page86 50 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 doing have acquiesced to the circumstances and invited the government to rely on that, rendering the prosecution of this action unreasonable. As a result, their claim cannot succeed because it is barred by both branches of the doctrine of laches.

(1) Decisions of the Courts Below

275 The trial judge held that the doctrine of laches acted as a defence to all of the Métis claims. He found that those entitled to benefits under ss. 31 and 32 of the Manitoba Act were, at the material time, aware of their rights under the Act and of their right to sue if they so wished. The trial judge held that there was "grossly unreasonable delay" in bringing this action in respect of those rights and the breaches that the Métis now claimed (para. 454). The majority have identified no palpable and overriding error with this conclusion.

276 There is some irony in the majority in this Court crafting its approach around the government's delay and at the same time excusing the Métis' delay in bringing their action for over 100 years.

[page729]

277 The trial judge observed that there was no evidence to explain the delay in making the claim. The only explanations offered came from counsel for the Métis and none of them provided "a justifiable explanation at law for those entitled under s. 31 and s. 32, whether individually or collectively, to have sat on their rights as they did until 1981" (para. 457). Nor, in the trial judge's view, did this delay in the exercise of their rights square with the evidence of Métis individuals and the larger community pursuing legal remedies throughout the 1890s for other claims arising from the Manitoba Act. The trial judge held that this amounted to acquiescence in law. Both Canada and Manitoba were prejudiced by the claim not being advanced in a timely fashion due to the incomplete nature of the evidence that was available at trial.

278 The Court of Appeal concluded that laches "may be applied to claims seeking declaratory relief whether declaratory judgments are viewed as equitable in nature or sui generis" (para. 342). The Court of Appeal then considered whether laches can operate to bar constitutional claims. It concluded that, while laches cannot be applied to claims based on the division of powers, the claims advanced by the Métis were not of that type. The Court of Appeal decided that it was unnecessary to determine whether laches could be applied to the types of constitutional claims advanced by the Métis because it determined that those claims were moot.

(2) Acquiescence

279 My colleagues suggest, at para. 149, that no one can acquiesce where the law has changed, since it is "unrealistic" to expect someone to have enforced their claim before the courts were prepared to recognize those rights. With respect, this conclusion is at odds with the common law approach to changes in the law. While there is no doubt that the law on Crown duties to Aboriginal people has evolved since the 1870s, defences of general application, including laches, have always applied to claimants despite such changes in the [page730] law (In re Spectrum Plus Ltd. (in liquidation), 2005 UKHL 41, [2005] 2 A.C. 680, at para. 26). The applicability of general defences like limitations periods to evolving areas of the law was also recognized by this Court in Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 101. My colleagues' approach to acquiescence is a significant change in the law of laches in Canada with potentially significant repercussions.

280 Turning to the specific requirements for the application of acquiescence, I agree with my colleagues that it depends on knowledge, capacity and freedom (Halsbury's Laws of England (4th ed. 2003), vol. 16(2), at para. 912). In my view, all three were present on the facts of this case.

281 Justice La Forest, in M. (K.) v. M. (H.), described the required level of knowledge to apply laches:

Page87 51 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

... an important aspect of the concept is the plaintiff's knowledge of her rights. It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim: Re Howlett, [1949] Ch. 767. However, this Court has held that knowledge of one's claim is to be measured by an objective standard; see Taylor v. Wallbridge (1879), 2 S.C.R. 616, at p. 670. In other words, the question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim. [Emphasis deleted; pp. 78-79.]

282 Given the trial judge's findings, the Métis had this required knowledge in the 1870s. This conclusion amounts to a finding of fact and cannot be set aside absent palpable and overriding error. The majority has not identified any such error.

[page731]

283 Instead of confronting this conclusion on knowledge, my colleagues conclude that the Métis could not acquiesce for three reasons: (1) historical injustices suffered by the Métis; (2) the imbalance in power that followed Crown sovereignty; and (3) the negative consequences following delays in allocating the land grants. I cannot agree with these conclusions.

(a) Historical Injustices

284 The main historical injustice discussed by the majority is the very issue of this case: delay in making the land grants. They conclude that the Métis did not receive the benefit that was intended by the land grants, and they imply that this was a cause of the Métis' subsequent marginalization. They suggest that, because laches is an equitable construct, the conscionability of both parties must be considered. While this is no doubt true, they then rely on the facts of the claim to conclude that equity does not permit the government to benefit from a laches defence. Effectively, they conclude that the very wrong that it is alleged the government committed resulted in a level of unconscionability that means they cannot access the defence of laches. With respect, this cannot be so. Laches is always invoked as a defence by a party alleged to have, in some way, wronged the plaintiff. If assessing conscionability is reduced to determining if the plaintiff has proven his or her allegations against the defendant, the defence of laches is rendered illusory.

(b) Imbalance in Power Following Crown Sovereignty

285 The evidence is not such that any imbalance in power between the Métis and the government was enough to undermine the knowledge, capacity and freedom of the Métis to the extent required to prevent a finding of acquiescence.

[page732]

286 At the start of the relevant time period, the Métis were a political and military force to be reckoned with. The majority notes, at para. 23 that "[t]he Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government." They also note that

[w]hen the Manitoba Act was passed, the Métis dominated the Red River provisional government, and controlled a significant military force. Canada had good reason to take the steps necessary to secure peace between the Métis and the settlers. [para. 93]

287 Furthermore, while the power and influence of the Métis declined in the following years, there is no evidence that the Métis reached a point where the imbalance in power was so great that they lost the knowledge, capacity or freedom required to acquiesce. Indeed, throughout the 1890s, applications were brought to the courts regarding Page88 52 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 disputes over individual allotments governed by s. 31. The Attorney General of Manitoba cites three examples of such litigation: Barber v. Proudfoot, [1890-91] 1 W.L.T.R. 144 (Man. Q.B. en banc) (a Métis individual sought to have a sale set aside), Hardy v. Desjarlais (1892), 8 Man. R. 550 (Q.B.) (the deed of sale was executed prior to the court order approving it, the money was not paid into court until the land was sold at a higher price), and Robinson v. Sutherland (1893), 9 Man. R. 199 (Q.B.) (a Métis minor alleged that her father forced her to sell her land contrary to the wishes of her husband). This litigation demonstrates that individual Métis had knowledge of their rights under s. 31 during this time period and had knowledge that they could apply to court in order to enforce their rights.

288 While the power of the Métis had declined by the 1890s, there is no evidence that this prevented them from organizing in such a way as to avail themselves of the courts when they felt their rights were being threatened. Throughout the 1890s [page733] Métis individuals were involved in a series of cases related to the "Manitoba Schools Question".

289 Catholic members of the Métis community collectively appealed to the courts regarding legislation involving denominational schools and twice pursued these issues all the way to the Judicial Committee of the Privy Council (City of Winnipeg v. Barrett, [1892] A.C. 445; and Brophy v. Attorney-General of Manitoba, [1895] A.C. 202). As these cases were not successful, Archbishop Taché organized a petition, which contained 4,267 signatures, that was submitted to the Governor General. This led to a reference to this Court and a subsequent appeal to the Privy Council.

290 From this evidence the trial judge inferred "that many of the 4,267 signatories [to the petition] would have been Métis" and that it was "clear that those members of the community including their leadership certainly were alive to [their] rights ... and of the remedies they had in the event of an occurrence which they considered to be a breach" (para. 435). My colleagues reject the second inference drawn by the trial judge, again without identifying any palpable and overriding error, stating that the actions of a larger community do not provide evidence of the Métis' ability to seek a declaration based on the honour of the Crown (para. 148). I cannot accept that conclusion. In my view, the evidence demonstrates that, when the rights of the Métis under the Manitoba Act were infringed by government action, the Métis were well aware of and able to access the courts for remedies.

291 The trial judge did not conclude that Archbishop Taché and Father Ritchot were Métis; he merely noted that they were leaders of a group that included some Métis and that group had accessed the courts to enforce rights contained in the Manitoba Act. This conclusion did not demonstrate any palpable and overriding error. It was reasonable for the trial judge to infer that by signing the petition and being aware of the litigation on denominational schools individual Métis had the [page734] knowledge required under the test described by La Forest J. in M. (K.) v. M. (H.). Both the cases of individual claims under the Manitoba legislation and the cases about the denominational schools show that members of the Métis community had the capacity and freedom to pursue litigation when they saw their rights being affected. In respect of any delay in making land grants, they chose not to do anything until 100 years later. As a result, the Métis acquiesced and laches should be imputed against them.

292 The reasons of the majority suggest that the fact that there was delay in distributing the land is sufficient to lead to the conclusion that the Métis were rendered so vulnerable as to be unable to acquiesce. In my view, this conclusion is untenable as a matter of law. It suggests that no party that suffered injury could ever acquiesce and thus renders the first part of the laches test meaningless. While laches requires consideration of whether the plaintiff had the capacity to bring a claim, this has never been extended to except from laches all who are vulnerable. Laches is imputed against vulnerable people just as limitations periods are applied against them. These doctrines cannot fulfill their purposes if they are not universally applicable.

293 Moreover, I do not accept the implication that the marginalization of the Métis was caused by delays in the distribution of the land grants. As noted above, the Métis community was under pressure for a number of reasons during the 1870s and 1880s. To suggest, as my colleagues do, that delays in the land grants caused the

Page89 53 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 vulnerability of the Métis is to make an inference that was not made by the trial judge and is not supported by the record.

294 In my view, the trial judge was correct in finding that the Métis had acquiesced and that laches could be imputed against them on that basis.

[page735]

(3) Circumstances That Make the Prosecution Unreasonable

295 Though my conclusion on acquiescence would be sufficient to result in imputing laches against the Métis, I am also of the view that the Métis' delay resulted in circumstances that make the prosecution of their claim unreasonable.

296 The majority finds that the delay did not result in circumstances that make prosecution of the claim unreasonable since they do not find that the government reasonably relied on the Métis' acceptance of the status quo. I cannot agree. The delay in commencing this suit was some 100 years. This delay has resulted in an incomplete evidentiary record. The unexplained delays that my colleagues refer to as evidence for the Crown acting dishonourably may well have been accounted for had the claim been brought promptly. The effect of this extraordinary delay on the evidentiary record, in a case dependent on establishing the actions of Crown officials over 100 years ago, constitutes circumstances that would make the prosecution unreasonable.

297 Moreover, we cannot know whether, if the claims had been brought at the time, the government might have been able to reallocate resources to allow the grants to be made faster or to take other steps to satisfy the Métis community. It cannot be said that the government did not alter or refrain from altering its position in reliance on the failure of the Métis to bring a claim in a timely manner.

(4) Laches Applies to Equitable Claims Against the Crown

298 The doctrine of laches can be used by all parties, including the Crown, to defend against equitable claims that have not been brought in a sufficiently timely manner. In Wewaykum, this Court considered the application of laches to an Aboriginal claim against the Crown and concluded [page736] that laches could act to bar a claim for breach of fiduciary duty. The delay at issue in that case was at least 45 years. The Court in Wewaykum, at para. 110, stated that

[t]he doctrine of laches is applicable to bar the claims of an Indian band in appropriate circumstances: L'Hirondelle v. The King (1916), 16 Ex. C.R. 193; Ontario (Attorney General) v. Bear Island Foundation (1984), 49 O.R. (2d) 353 (H.C.), at p. 447 (aff'd on other grounds (1989), 68 O.R. (2d) 394 (C.A.), aff'd [1991] 2 S.C.R. 570); Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (C.A.). There are also dicta in two decisions of this Court considering, without rejecting, arguments that laches may bar claims to aboriginal title: Smith v. The Queen, [1983] 1 S.C.R. 554, at p. 570; Guerin, supra, at p. 390.

299 As discussed above in relation to limitations periods, the application of the defence of laches to the Crown is beneficial for the legal system and society generally. The rationales that justify the application of laches for private litigants apply equally to the Crown.

(5) Laches Applies to Claims Under Honour of the Crown

300 The majority concludes that claims for a declaration that a provision of the Constitution was not fulfilled as required by the honour of the Crown ought never to be subject to laches. This is a broad and sweeping declaration, Page90 54 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623 especially considering the conclusion of this Court in Wewaykum that breaches of the fiduciary duty could be subject to laches. A fiduciary duty is one duty derived from the honour of the Crown. It is fundamentally inconsistent to permit certain claims (e.g. those based on "solemn obligations" contained in Constitutional documents) derived from the honour of the Crown to escape the imputation of laches while other claims (e.g. those based on the more well-established and narrowly defined fiduciary obligation) are not given such a wide berth. Moreover, this holding will encourage litigants to reframe claims in order to bring themselves within the scope of this new, more [page737] generous exception to the doctrine of laches, which - particularly in light of the ambiguities associated with the new duty - creates uncertainty in the law.

301 My colleagues rely on the holding in Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327, to support their position. In my view, reference to that case is inapposite. Division of powers claims, such as the one considered in Ontario Hydro, are based on ongoing legal boundaries between federal and provincial jurisdiction. This claim based on the honour of the Crown is grounded in factual circumstances that occurred over 100 years ago. Just as Kingstreet and Ravndahl distinguish claims based on factual circumstances from those based on ongoing statutory issues in the context of limitations statutes, so too should this case be distinguished from Ontario Hydro.

(6) Conclusion on Laches

302 In my view, both branches of laches are satisfied. The Crown is entitled to the benefit of this equitable defence generally and specifically in relation to claims arising from the honour of the Crown in implementing constitutional provisions. As La Forest J. stated in M. (K.) v. M. (H.), at p. 78, "[u]ltimately, laches must be resolved as a matter of justice as between the parties". Both the Métis and the government are entitled to justice. As a matter of justice, laches applies and precludes granting the equitable remedy sought here.

IV. Conclusion

303 I would dismiss the appeal with costs.

[page738]

Appeal allowed in part with costs throughout, ROTHSTEIN and MOLDAVER JJ. dissenting.

Solicitors:

Solicitors for the appellants: Rosenbloom Aldridge Bartley & Rosling, Vancouver.

Solicitor for the respondent the Attorney General of Canada: Attorney General of Canada, Saskatoon.

Solicitor for the respondent the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.

Solicitor for the intervener the Métis National Council: Métis National Council, Ottawa.

Solicitors for the intervener the Métis Nation of Alberta: JTM Law, Toronto.

Solicitors for the intervener the Métis Nation of Ontario: Pape Salter Teillet, Vancouver.

Page91 55 of 56 Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623

Solicitors for the intervener the Treaty One First Nations: Rath & Company, Priddis, Alberta.

Solicitors for the intervener the Assembly of First Nations: Arvay Finlay, Vancouver; Nahwegahbow, Corbiere, Rama, Ontario.

End of Document

Page92 56 of 56 METIS ECONOMIC COMMUNITIES AND SETTLEMENTS IN THE 19~~CENTURY

August 2005

DR. ARTHUR J. RAY, FRSC

HISTORY DEPARTMENT UNIVERSITY OF BRITISH COLUMBIA 0

93 r Ray, Arthur: MBtls Economic Communities and Settlements in the I@ Century -1 -

'II.

Table of Contents " I

I I. Introduction I2 I 2. Metis History: Perspectives, theoretical constructs, and terminology 13 3. The Formation of Metis Settlements in the Central and Western Interior I Areas of Canada Before 1870 1 21 4. Regional Patterns to 1820-70 1 47

5. Conclusion I77

6. Sources Cited 181

94 Ray, Arthur: MBtis Economic Communifles and Setflemenfsin the I@Century -2-

1 Introduction

The purpose of this report is to explore several basic questions that have arisen regarding the determination of Metis rights in Canada: (1) What were the socioeconomic characteristics of the Nineteenth Century Metis Nation and its regional expressions in the central and western interior areas of Canada? (2) What were the spatial characteristics of Metis settlements and communities in general and in site-specific terms in the Nineteenth Century? In this report Iwill focus on the

central (upper Great Lakes-Boundary Waters) and western (Prairie Provinces of '

Manitoba and Saskatchewan) regions, emphasizing the socio-economic and spatial dimensions of Metis culture in the Nineteenth Century drawing mostly, but not exclusively, on the extant literature relating to this question.

1 I would like to thank my research assistants, Patti Alison md Dr. Kenichi Matsui, for their important contributions.

95 Ray, Arthur: MBNs Economic Communities and Settlements In the 1!f' Century -3-

M~ISHISTORY: PERSPECTIVES, THEORETICAL CONSTRUCTS, AND

TERMINOLOGY

Historical terms used to identify the M6tis

Ideally, Metis history should provide dual perspectives -one from that of the insiders' and the other from that of the outsiders (Figure 1). In reality the history of these people largely has been written by outsiders, mostly academics. This has had several important consequences. Typically historians (broadly defined) largely have relied on documentary records. With some notable exceptions, mostly these records were created by outsiders who were associated with one of the two distinctive pre-1821 fur-trading traditions. The French initiated the first of these at the beginning of the Seventeenth Century. It was rooted in the St.

Lawrence River valley. The second tradition spread from Hudson Bay. It was spearheaded by the English Hudson's Bay Company [HBC], which was founded in 1670.' The two traditions blended together after 1821 when the North West

Company [NWC], which had replaced the French, and the HBC merged.

Of particular relevance to the scholarship about Metis history, these two fur trading traditions produced records that reflect the different attitudes of the St.

Lawrence-based and Hudson Bay-based traders toward interracial marriage and the new people who sprang from these unions. The terms these two groups of traders and their associates ascribed to the Metis reflected their different

*The company was initially established using a French fur trading model but rapidly developed its own tradition.

96 Ray, Arthur: MBNs Economlc Communltles end Settlements in the lpCentury -4- attitudes (Table 1). The French commonly used two terms: 'bois brul8' (or simply brul6) and Metis. The former term apparently was a reference to the slash-and- burn agriculture that Metis practiced at their summer settlements in the Great

Lakes area3. The Hudson Bay-based English rivals of the French, and the Nor'

Westers who succeeded the French after 1763, occasionally also used these terms after 1816. More commonly, the HBC traders identified people of mixed ancestry who were associated with the company as being either 'Indians.'

'Native,' or 'English' depending on how closely they were affiliated with either of the two parent cultural group^.^ Less frequently, HBC traders also used the terms 'mixed-bloods' and 'country-born.'

MBtis oral tradition in Manitoba holds that the term refers to the colour of their skin. 'Jennifer Brown noted that these designations offered important clues about fur trade society and the affiliations of individuals within in it. Jennifer S.H. Brown, "Linguistic Solitudes and Changing Social Categories," Carol M. Judd and Arthur J. Ray, eds., Old 1Pails and New Directions: Papers ofthe Third North American Fur Trade Conference (Toronto: University of Toronto Press, 1980), 153-157.

97 I Ray, Arthur: MBfis Economlc Communiflesand Seftiements In the I@ Cenfury -5- I

FW 1: M& HISDM

INSIDERS' PERSPECTIVES

OUTSIDERS'

/' pERspEcTms \ ST.LAWRENCE 1 HUDSON'S BAY FRENCH-ENGLISH j ENGLISH BEFORE PRIG1763 AND AFTER 1763 -- -. ------

98 - Ray, Arthur: MBtis Economic Communities andsettlements in fhe 19th Century -6- I

TABLE 1

Prior to 1821, the HBC writers also used the term 'freemen' to describe

local men who were no longer under labour contracts to the company or its rival

traders. French speakers and Nor' Westers commonly referred to these

individuals as 'gens libres.' Some 'Freemen' who had been employees of the

NWC were of French CanadianlNative (sometimes lroquoian) descent5 Often

traders also referred to people of French Canadianlnative ancestry as being

'~anadians.'~Most 'Freemen' married local women, a la fac;on du pays [in the

custom of the country], and raised families. After the merger of the Hudson's

Trudy Nicks, "Iroquois and the Fur Trade in Westem Canada," in Carol M. Judd and Arthur J. Ray, eds, Old Tiils and New Directions: Papersfrom the Third North American Fur Trade Conference. Toronto: University of Toronto Press, 1980, 85-101; and Brown, 'MBtis,' The Canadian Encyclopedia (Edmonton: Hartig Publisher, 1985), 1124-1127, "TheMbtis: Genesis and Rebirth," Bruce Cox, ed., Nalive People, Native Lands: Canadian Indians, Intrit ond Metis (Ottawa: Carleton University Press, 1987), 138-140. '3acqueline Peterson, "Ethnogenesis: The Settlement and Growth of a 'New People' in the Grent Lakes Region, 1702-1815," American Indian Cuiltrre andResearch Jorrrnal6, no. 2 (1982): 25.

99 Ray, Arthur: MBtis Economic Communities and Sefflements in the ldhCentury -7- "-

Bay and North West companies in 1821, the word 'half-breed' was widely used in

the fur trade. This term took on an increasingly pejorative meaning after 1870-

85, especially in English-speaking circles outside of the fur trade. After the

1870s, legal categorization, treaties and scrip schemes created additional

complications for the identification of Metis in HBC records. In treaty areas,

'Indians' was the term often applied both to Native people who opted for treaties

to obtain annuities and those who opted for scrip. Company accountants

sometimes included Metis as 'customers' rather than as 'Indians' because they

considered them as greater credit risks. The reason was that treaty 'Indians' at

minimum, had a regular annuity income whereas Metis did not? 'Indians

accounts' also could include Metis.

Scholarly approaches and theoretical frameworks

Two pioneering studies had an enduring impact on the development of historical

scholarship concerning the Metis. One was George Stanley's The Birth of

Western Canada (1936)' and the other was Marcel Giraud's Le metis canadien,

son r6Ie dans I'histoire des provinces de I'Ouest (1945).' Both approached their

studies from cultural evolutionary perspectives that were popular at the time.

Stanley interpreted the Nineteenth Century Metis resistance to Canadian

For example, the Manitoba House Inspection Report for 1891 makes the following remark about a list of hunters that was included: 'the list includes the Accounts of a large number of Fur hunters, who should have been treated as Indians; the reason given for their being treated as customers [see Table 6 below] was that they did not take Treaty money, having accepted scrip, but they have no means of paying their debts except by Furs.' Provincial Archives of Mantioba: Hudson's Bay Company Archives (PAMHBC), Inspection Report, Manitoba House Post, Lake ManitobaDistrict, 1891, B 53lel5, 6. ' George F. G. Stanley, The Birth of Western Canada: A History of tlze Riel Rebellions. London: Longmans, Green and Company, 1936. Marcel Giraud, Le mgtis ccanadien, son r6le dans I'histoire desprovinces de 1'Onest. Paris, Institut d'ethnologie, 1945.

100 Ray, Arthur: MBtls Economic Communltles and Sefflemenfslnthe 19th Century -8-

expansion in the Prairie West as being a clash of civilization: the primitive Metis 'T hunters fought against an expanding industrial state economy. Giraud, on the

.- other hand, saw the Metis as having an economy and society that was partly

primitive (their Aboriginal heritage) and partly civilized (their Euro-Canadian .- heritage).'' Although later generations of scholars faulted these two scholars for

their evolutionary outlooks, nonetheless historians have continued to deploy

evolutionary perspectives when writing about the Metis. For example, some

scholars employ Marxist perspectives that envision a progression from primitive'1

to industrial societies. These studies have tended to portray the Metis as a class

of people and downplay their existence as a social-cultural c~mmunity.'~Others,

such as Irene Spry and Gerhard ~ns,'~deploy the scheme of economic historian

Karl Polanyi, who imagined economic evolution as being a path leading from

'O Marcel Giraud, The Mdtis in the Canadian West, translated by Woodcock (Edmonton: University of Alberta, 1986 [1945]). " Historians of anthropology have obsenred that the notion, or rather, invention of the primitive, has been one of the most persistent ideas of their discipline because initially it was the concept that set anthropology apart fiom the other social sciences. 'Primitive people' were anthropology's domain. See, for example, John and Jean Comaroff, Ethnography and the Historical Imagination. Boulder, Colorado: Westview Press, 1992); Adam Kuper, The Invention of Primitive Society: Transformations of an Illusion. London and New York: Routledge, 1988: 3-5; Arthur J. Ray, "Reflections on Fur Trade Social History in Canada," American Indian Culture and Research Journal 6, no. 2 (1982), 93; "Native History onTrial: Confessions of an Expert Witness," Canadian Historical Review 84, no. 2 (June 2003), 256; Nicholas Thomas, Out of Time: History ondEvoltrtion in Anthropological Discourse, 20d ed. , Ann Arbor: University of Michigan press, 1996. "J. E. Michael Kew, CumberlandHouse ,Saskatoon: Centre for Community Studies, University of Saskatchewan, 1962); and Nicole St-Onge, Saint-Laurent, Manitoba: EvolvingMdtis Identities. 1850-1914. Regina: Canadian Plains Research Center, University of Regina, 2004. l3 1rene M. Spry, "The Great Transformation: The Disappearance of the Commons in Western Canada," in R.A. Allen, ed., Man and Nature on theprairies. Regina: Canadian Plains Research Centre, University of Regina, 1976,21-45; "The M6tis and Mixed-bloods of Rupert's Land before 1870," in Jennifer S.H. Brown and ~ac~uelinePeterson, eds., The New Peoples: Being aid ~ecomin~Melis in North America. Winnipeg: University of Manitoba Press, 1985,95-118; and Ens, Homeland to Hinterland: The Changing World ofthe ~ed~ivei~etisin the Nineteenth Century. Toronto: University of Toronto Press, 1996.

101 -- Ray, Arthur: MBtls Economic Communities and Sefflementsh the lp Century -9-

primitive (pre-capitalist) through archaic to modem (capitalist) ec~nomies.'~A -c- i variant of this scheme, which also echoes Girard's depiction, is the dual economy - model that is largely rooted in the economic development and dependency

literature of the 1950s and 1960s.I5 Based on this perspective, Ens imagines

that the nineteenth century Metis economy had 'pre-capitalist' and 'capitalist'

modes of production.'"

These remarkably persistent evolutionary economic schemes have two

very important implications for the current struggle of the Metis for their rights.

First, an underlying assumption is that making a livelihood off of the land by

fishing, hunting, and trapping is an outmoded practice that is bound to be

supplanted by more modern ways of making a living. In other words, these

models serve to relegate such practices to the realm of lingering cultural

traditions that are (or will be) of marginal economic significance. Second, a

number of theories of identity formation17 and dissol~tion'~are linked to these

l4 Karl Polanyi, The Great Trangfonnation: The Political and Economic Origins of Our Time (New York: Farrar & Rinehart, 1944); George Dalton, ed., Primitive, Archaic, and Modern Economies: Essays ofKarl Polanyi. Garden City, New York: Anchor Books, 1968. Eleanor M. Blain, "Dependency: Charles Bishop and the Northern Ojibwa," in Kerry Abel and Jean Friesen, eds., Aboriginal Resource Use in Canada: Historical and Legal Aspects (Winnipeg: University of Manitoba Press, 1991); Donald Creighton, The Empire of the St, Lawrence (Toronto: Macmillan of Canada, 1956), 16, 89-90,185-187; "The 18609," in J.M.S. Careless and R. Craig Brown, eds., The Canadians, 1867-1967 (Toronto: Macmillan of Canada, 1967): 3-36; George Dalton, "Economic Theory and Primitive Society," American Anthropologist 63 (1961): 1-25; Joseph Kinsey Howard, Strange Empire: Louis Riel A Narrative of the Northwest (New York: Morrow) 1952; W. L. Morton, Manitoba: A History (Toronto: University of Toronto Press, 1957); E. E. Rich, "Trade Habits and Economic Motivation among the Indians of North America," Canadian Journrzl ofEconomics andPoliticcr1 Science 26 (1960): 35-53; The History of Hudson's BvCompany, 1670-1870,2 vols. (London: Hudson's Bay Record Society, 1958-59); The History ofthe Northwest lo 16157 (Toronto: McClelland and Stewart, 1967), 102; FrankTough, "The Northern Fur Trade: A Review of Conceptual nnd Methodological Problems," Musk-Ox 36 (1988): 66-79. " Ens, Homeland lo Hinterland, 4-8; "Metis Ethnicity, Personal Identity and the Development of Capitalism in the Western Interior," in Ted Binnema, Ens, and R.C. Macleod, eds., From Rtpert's Land fo Canada. (Edmonton: University of Alberta Press, 2001, 162. '' Frederik Barth, "Introduction," in Bnrth, ed., Ethnic Groups and Boundaries: The Social Orgnnizafion of Culture Diyerence. Boston: Little, Brown and Company, 1969; Pierre Bourdieu, The Logic ofpractice.

102 - Ray, Arlhur: MBfis Economic Communities and Settlements in the IS@ Century -10-

models. Put simply, they envision the Metis as being a people who bridged the

native (primitive) and capitalist (western and modern) worlds. The assumption is

that when the 'primitive component' dissolved (dissolves) or was (is)

marginalized-- the Metis ceased (cease) to exist as distinct comm~nities.'~

According to this interpretive framework, the Metis are believed to have become

merely an underprivileged class within the larger capitalist s~ciety.'~

A number of non-economic explanations also have been advanced to

explain the emergence of the Metis Nation. Giraud, for example, thought that

another reason why the Metis developed a self-conscious identity in the prairie

west was because their settlements had developed in relative isolation for a half-

century or more (the isolation thesis). He thought that external forces, especially

the clash between the HBC and NWC in the early Nineteenth Century, served as

a catalyst because the NWC used people of mixed ancestry as pawns.21 Later,

Olive Dickason advanced a very similar argument to explain why the Metis

emerged only in the Canadian Northwest even though interracial marriages

Stanford: Stanford University Press, 1990; Jennifer S.H. Brown, "Diverging Identities: The Presbyterian Mktis of St. Gabriel Street, Montrt5a1," Brown and Peterson, eds., The New Peoples: 195-206; David V. Burley, Gayel A. Horsfall, and John D. Brandon, Struclural Considerations ofM6tis Ethnicity: An Archaeological, Architecfural, and Hi.~toricalStudy. Vermillion, SD: University of South Dakota Press, 1992), 3-40; JobnFoster, "Some Questions and Perspectives on the Problem of Metis Roots," inBrown and Peterson, TheNew Peoples, 73-91; James B. Waldram, "Ethnostatus Distinctions in the Western Subarctic: Implications for Inter-Ethnic and Interpersonal Relations," in Joe Sawchuk, ed., Readings in Aboriginal Studies, vol. 2: Identities nnd State Structures. Brandon, Manitoba: Bearpaw Publishing, 1992,9-23. I8~ns,Homeland to Hinterlund, 169; Nicole J.M. St-Onge, 'The Dissolution of a MBtis Community: Pointe A Grouette, 1860-1885,"Studies in Political Economy 18 (Autumn 1985), 149-172. Associating the survival of the MBtis with the mercantile ('classical') fur trade also reinforced this perspective. The mercantile fur trade commonly is regarded as marking the first stage in Canadian economic development. 20 Examples are: Kew and St. Onge Giraud was one of the first to advance this idea. Giraud, The Mitis in the Canadian West, vol. 1,407- 430,453.

103 .- Ray, Arthur: MBtis Economic Communities and Settlements in the I@ Century -11 -

occurred as an aspect of the fur trade across the c~ntinent.~'Historian John

Foster developed a more nuanced model that acknowledged the diversity of the

northwestern MBtis. Drawing upon the work of anthropologist/socioldgist

Frederik Barth and historians Louis HartzZ3and Jacqueline Peterson, Foster

emphasized the importance of micro environmental factors, kinship relations, and

the gender and family experiences of people of mixed ancestry who were

involved in the fur trade.24 Numerous authors have offered other, less often

cited, theoretical interpretations that give different weight to the variables noted

above.

What all of these theoretical models have in common is that they envision

that the Metis existed for a short time in a few places. Put simply, they were a

people born of the mercantile fur trade who died with its demise. These theories

are problematic because most of them: (1) assume that Metis sense of being a

distinct people did not develop outside of the Great Lakes and prairie west?5 (2)

they focus on the historical experience of the buffalo-hunting ~.4tis?~(3) they

22 Olive Patricia Dickason, "From 'One Nation' in the Northeast to 'New Nation' in the Northwest: A Look at the Emergence of the MBtis," American Indian Culture and Research Journal 62 (1982): 1-21. Barth, ed., Ethnic Groups andBoundaries, 9-38; Foster, "Some Questions and Perspectives," 79; Peterson, "Prelude to Red River: A Social Portrait of the Great Lakes Metis," Ethnohistory 25 (Winter 1978): 41-67; "Many Roads to Red Rivet: MBtis Genesis in the Great Lakes Region, 1680-1815," inBrown and Peterson, The New Peoples, 38, 65.; and Louis Hartz, editor, Thefounding ofNew Societies: Studies in the History of the UnifedStates,Latin America, South Africa, Canada, and Australia. Toronto: Longman's, 1964. "~ohnE. Foster, "Some Questions and Perspectives on the Problem of the MBtis roots," in The New Peoples, eds., Peterson and Brown (Winnipeg: University of Manitoba Press, 1985) pp. 73-91. 25 Examples are: David Boisvert and Keith Turnbull, "Who Are the MBtis?" in Sawchuk, ed., Readingx in Aboriginal Studies, 115-1 16; Burley, Hotsfall, and Brandon, Structural Considerations ofMdtis Etl~niciry, 17-24; Dickason, "From 'One Nation' in the Northeast to 'New Nation' in the Northwest: A Look at the Emergence of the MBtis," American Indian CuNure and Resenrch Journal 62 (1982), 13-14; Giraud, The Mklis in the Candian West, vol. 1,211. 26 Examples are: Boisvert and Turnbull, 108-141; Brown, '

104 &.... Ray, Arthur: M6tis Economic Communifies and Sefflernents in the I@ Cenfury -12-

- presume that these people (and other MBtis) ceased to exist sometime by the f' '- late Nineteenth (4) they do not take into account the extent to which - discrimination against people of mixed ancestry served to stifle overt Metis - expressions of their identity and culture after 1885:' and (5) they do not consider the extent to which conservation legislation and its enforcement led the Metis to

engage in an underground fishing, hunting, and trapping economy that masked

their presence on the land.2g

In this report I propose that we look at Metis economies somewhat

differently. I abandon the evolutionaj perspectives and the cultural baggage

that is associated with them. I regard Metis economies as simply having been

built on multiple traditions that made it possible for these people to adapt readily

to a wide range of local environments and participate in changing economies at

the local, regional and national levels. Their participation meant that local Metis

settlements continually adjusted to fluctuating local ecological circumstances

(especially wildlife population cycles) and varying economic opportunities.

Beginning in the late Nineteenth Century, racial discrimination and state

regulatory regimes made it difficult for the Metis to be as flexible as in the past.

Terminology: 'settlement.' 'community' and 'nation.'

27 Examples are: Boisvert and Turnhull, 134; Brown, "The MMBtis: Genesis and Rehirth,"142-143; Burley, Horsfall, and Brandon, Slntctural Conslderations ofMCtis Ethnicity, 32-33; Ens, "Metis Ethnioity, Personal Identity and the Development of Capitalism in the Western Interior," 173-174; P.R. Mailhot and D. N. Sprague, "Persistent Settlers: The Dispersal and Resettlement of the Red River M6tis, 1870-1885," Cnnudinn Ethnic Studies, 17, no. 2 (1985): 1-9. 28 St-Ouge, Saint-Lauren?, 90-94. lo he testimony in R. v. Powley made it clear that the MMBtis had to hunt moose olandestinely.

105 .- Ray. Arthur: MBtis Economic Communities and Sefflementsin the I@'Century -13-

The terms 'community' and 'settlement' are featured prominently in the historical

scholarship concerning the Mbtis. The problem is that these common words

have multiple meaning^.^' This fact, and the tendency for most scholars to use

the two words interchangeably, has created terminological confusion,

particularly with respect to the word 'community.' The problem began with the

foundational study by the French historical sociologist, Marcel Giraud (1945).~'

In his discussion of Canadian-Native relations in Lower Canada (present-day

Quebec), Giraud does not use the words, settlement or community. He begins

to use these words only after he enters into a discussion about the roles played

by the freemen or "new class of men" in the The way he uses the term

'settlement' reflects the cultural evolutionary model that underpinned his work.

For example, he uses the term 'settlement' mainly to refer to the more

sedentary aspects of M6tis life as they were manifest in fanning activities and

the construction of log houses and other structures. In other words, for Giraud,

settlements were places where the M6tis left tangible evidence that they had

invested their labour in the land. To illustrate, Giraud called locations where

MBtis parties assembled for hunting buffalo as "semi-nomad encampment^."^^

30 According to the Merriam-Webster dictionary, the word community bas a number of common meanings: "'aunified body of individuals: as a: STATE, COMMONWEALTH b: the people with coinmon interests living in a particular area; broadly: the area itself 'the problems of a large community' c: on interacting population of various kinds of individuals (as species) in a common location d: a group of people with a common characteristic or interest living together within a larger society 'a community of retired persons' e: a group linked by a common policy f: a body of persons or nations having a common history or common social, economic, and political interests 'the international community' g: a body ofpersons of common and especially professional interests scattered through a larger society 'the academic community."' Settlement, on the other hand, refers to: a: occupation by settlers b: a place or region newly settled c: a small village.' " Marcel Giraud, The Mitis in the Canadian West, translated by Woodcock (Edmonton: University of Alberta, 1986 [1945]). 32 Ibid., 264. 33 Ibid., 271.

106 - Ray, Arthur: MBtis Economic Communiffes and Setflementsin the I@Century -14-

-. In contrast, when writing about the formation of the Red River Mdtis at the i; beginning of the Nineteenth Century, he observed that some of these 'nomad'

freemen established the 'nucleus of the Pembina settlement' at the fork of the

Pembina and Red rivers. He added that this was 'one of the Mdtis centres of

population most dominated by prairie ways.'34 in other words, here Giraud

equated 'settlement' with a developed site of habitation where the more

'civilized' dimensions of MBtis culture were obvious. In contrast, he regarded

'encampments' as being the seasonal sites MBtis occupied when hunting,

fishing, and collecting. These places were expressions of the more 'primitive'

aspects of Metis life.

Giraud first employed the word 'community' in reference to groups who

developed a distinctive cultural tradition. When doing so he drew a clear

distinction between western Canada and the Great Lakes region. Giraud

argued that in the West 'the affinities in character between Canadian [men of

French Canadian background] and native were strongly revealed and blended

the two groups in a veritable community of life and feeling.'35 Expanding on his

argument, Giraud asserted that in Lower Canada the fusion of races or societies

were 'the habit of irregular effort,'but in the West, it became 'the rule of life for

the ~anadian.'~~In his view, such typical prairie ways were established at the

junction of the Red and Assiniboine rivers, 'where several families seem to have

settled by the end of the Eighteenth Century,' or the areas surrounding trading

107 - Ray, Arthur: MBf1.s Econornlc Cornrnunltles and Sefflernenfslnthe I@ Century -15-

posts such as at Fort William, where they 'organized little agricultural

communities, whose activities are recalled in the primitive gardens around MBtis

settlements which today form one of the most familiar images of the In

these instances, Giraud clearly used the term community in reference to the

places where these Metis socio-cultural groups were anchored on the land in

readily visible ways. Significantly, as noted above, Giraud tended to see Metis

economies, land use practices and related places of occupation as being

manifestations of dichotomous primitivelcivilized tendencies rather than rational

adaptations to local economic realities.

The seminal work of Jacqueline Peterson (1982), who explored the roots

of the Red River Metis focused on the places where the Metis gathered before

1850. She focused on the fur trading settlements of the Great Lakes area.

Similar to Giraud, she is not systematic in her use of the term 'community.'

Sometimes she uses it to describe the Metis as a distinctive socio-cultural group

and at other times she uses it as a synonym for a physical settlement. Peterson

asserts that three distinctive types of settlements developed in the Great Lakes

region. One was the trading hub (Michilimackinac being an example), which was

a regional administrative center of the trade. It served primarily as the regional

distribution centre for trading goods and personnel management.=' in the mid-

Eighteenth Century, this type of "community," as Peterson calls it, lacked material

status distinctions between merchants and voyageurs. In this respect it

37~bid,,270. " Jacqueline Peterson's "Ethnogenesis: The Settlement and Growth of a 'New People' in the Great Lakes Region, 1702-1815," American Indian Culture and Research Jorrrnal6: 2 (1982): 28.

108 .d Ray, Arthur: MBlis Economic Communities and Sefflementsin the I@ Century -16-

contrasted with other Great Lakes region settlements of the French period.3g

After the British took over the island, the hub town lost its "simple occupational

homogeneity and local orientation" and became "a relatively complex and socially

differentiated commercial and military center."40

According to Peterson's scheme, smaller corporate trading towns (like La

Baye, Prairie du Chien and Frenchtown) represented a second type of

settlement. They existed on the peripheries of hubs, receiving trading goods and

personnel from the latter.41 The towns were marked by "a simple social

organization, occupational homogeneity, and dependence upon either

Michilimackinac or ~etroit."~~All were located along rivers, bays or lakeshores at

important breaks in trade?3 Upper class residents included the senior "Creole"

traders and their male Metis offspring, who often assumed the roles of priest,

commandant, judge, and notary." According to Peterson, the "Metis community"

at Green Bay (Wisconsin) became prominent after the British takeover in 1763,

when worn out voyageurs or boatmen began to settle there. She observes that

similar phenomenon took place at Peoria (Illinois), St. lgnace (Michigan), Fort

Miamis (Fort Wayne, Indiana), and, it was of particular importance, at Sault Ste.

Marie (~ntario)?~This corporate town had the highest level of metissage, or

ethnogenisis, among the corporate towns during the period of NWC-HBC rivalry.

She says that there were a growing number of French Canadian, Metis, and

3' Ibid, 37 40 ]bid., 42. 41 Ibid., 28. 42 bid., 44. 43 Ibid., 45. 44 Ibid., 44. 45 Ibid., 47

109 .- Ray, Arthur: MBlis Economic Communities and Sefllementsin the 1SLh Century -17-

Scots and Irish traders fanning out from these places with their Native wives and 'f '. chi~dren.~' .- Peterson's third type of settlement was the trading hamlet, or subsidiary

trading outlet. Milwaukee (Wisconsin), which had taken shape by the last

decades of the Eighteenth Century, was an important examp1e.4~Peterson

describes these Metis settlements as "new communities or hamlet^."^' These

outlets were usually run by a single trader who had an Indian or Metis wife and

his employees. Peterson contends in the small trading hamlets, residents "did not

develop a keen sense of the value of individual property rights" because they

were not interested in agric~lture.4~

Peterson also posits that during the formative period between 1702 and

1815, all Great Lakes trading settlements had two distinctive characteristics.

First, the Metis increasingly dominated them; second, all these places operated

almost exclusively for the fur trade; thus, they were often termed Canadian or

"Metis" trading towns.50 So, according to Peterson's approach, settlements were

places where Metis invested their labour to build homes, trading places, and

sometimes (especially at the hub and corporate trading towns) developed farms.

Sometimes she described these places as communities; at other times, she used

the term 'community' to describe a Metis social-cultural group who lived at these

sites. In some instances, their community embraced the entire settlement site; in

'6 '6 Ibid., 49. 47 Ibid,,28 and 50. 48 Ibid., 50. 49 Ibid., 55. Her evidence for this broad generalization is unclear and warrants further researoh. 50 Ibid., 28-9.

110 - Ray, Arthur: MBtis Economlc CommunMles and Settlementsin the I@ Century -18-

other instances, the Metis were a component of a larger community (i.e. the local

community, or component of it, could also be a class).

The varied use of the term 'community' by Giraud and Peterson, including

the tendency to use it as a synonym for 'settlement,' is evident in the work of

most other scholars to the present day. In this report, I use the term 'community'

to refer to a group of people who were interdependent, interacted socially on a

regular basis, and usually were close kin. I use the term 'settlement' in reference

to physical sites that are defined in terms of their built-up and cleared areas.

Even though Peterson intended that it be applied to the Great Lakes, her scheme

is useful more broadly because it recognizes that there was a hierarchy of fur

trading settlements. This was also true of the HBCINWC networks everywhere.

I have suggested the parallels in Figure 2. 1 have underlined and captioned

Peterson's terms in bold type. I list the approximate Canadian equivalents in

italics. Of importance, the smaller trading settlements (outposts) could be

occupied exclusively by a Metis community (or the iocal component of it),

whereas in the larger trading posts and district headquarters settlements, the

local Metis community might be only a part of a larger community, which included

First Nations and Euro-Canadians. It is also clear that a iocal Metis community

could be present at more than one settlement in a particular region. In other

words, the Metis regional community was not defined by the boundaries of a

single settlement.

111 Ray, Arthur: MBNs Economic Communities and Sefflemenfsin the I@ Century -19-

FEi'ME 2: SETTLEMENT HIERMCH~

Trading Hub/ fitrict Headquarters

Corporate trading town/ Corporate trading town1 Traakgpost - %aaiigpost

Trading Trading Hamlet/ Outpost Hamlet/ Outpost

112 - Ray, Arthur: MBfls Economlc Communllles and Settlemenls In the lp Cenlury -20-

-- Communitylsettlement focused studies f r Another difficulty with the scholarly literature on the MBtis Is that, apart from Red - River, few communities or settlements have been studied in depth. Furthermore, most focus on the pre-1870-1885 era and a few emphasize the period - afte~ard.~'None give balanced coverage to both time periods. Furthermore, hardly any of these works systematically explore the changing spatial dimension of community economies for the purpose of attempting to explain the development of regional variants of the Metis Nation.

Examples of the latter are: Kew, JohnP. Tl~omton,'TheNational Policy, the Department of the Interior and Original Settlers: Land Claims of the Metis, Green Lake, Saskatchewan, 1909-1930,' MA Thesis, School ofNative Studies, University of Saskatchewan, Saskatoon, 1997.

113 - Ray, Arthur: M&is Economic Communities andSettlements in the IPCenluiy -21-

- THE FORMATION OF THE METIS SETTLEMENTS IN THE CENTRAL AND WESTERN INTERIOR AREAS OF CANADA BEFORE 1870

4 Regardless of their theories of Metis origins, historians of the Metis agree that - the Canadian fur trade served as the cradle for these people. It is generally accepted that the roots of the western Metis can be traced, in part, to the Great

Lakes area. Metis ethnogenesis began as early as the mid-Seventeenth

Century. By that time small settlements emerged around trading posts, one of

the earliest being that of Sault Ste Marie. At the time of initial contacts with

Europeans in the early Seventeenth Century, the Ojibwa were the primary

occupants of the area bounded by Lake Huron to the south, Lake Superior on the

west and the Height of Land to the north. These people depended heavily on

fishing during the warmer months, especially sturgeon and white fish, and during

the winter hunting large and small game, especially moose, Virginia (Whitetail)

deer, woodland caribou, and beaver.52 Wild rice and maple sugar also were

important foods. To pursue these various resources the Ojibwa followed an

annual round of movement between their Lake Huron shoreline fishing villages,

which they occupied during the warmer months, and their winter huntingltrapping

ranges inland. In other words, these people's economies were spatially

extensive and movement was an integral feature of their way of life. These

cultural characteristics became defining components of their Metis cousins.

52 Charles A. Bishop, The Northern Ojibwa and the Fur Trade. Toronto, 1974, p. 7-8.

114 - Ray, Arthur: Mdtis Economic Communities andSeftlemenfsin the ighCentury - 22 -

The Ojibwa communities consisted of a number of closely related

extended families, who identified with the same totem sign, and occupied

summer settlements near major lakeshore fishing ~ites.5~During the hunting and

trapping season, on the other hand, the key economic unit of most northern

Ojibwa people was the so-called winter band that consisted of a group of closely

related families that were led by a senior male from the core family.54 These

bands tended to hunt the same area every year, but their ranges were not rigidly

bounded given the mobile nature of the large game they pursued."5 Also, they

intermarried with nearby groups since band exogamy was the rule.

The Ojibwa maintained economic and social ties with neighboring groups,

the most important of whom were their Cree neighbors to the north and west and

the Huron to the southeast. Commerce with the latter people was particularly

important. The Ojibwa obtained a variety of Huron products, especially food

(dried corn mostly), in exchange for furs and hides. The Ojibwa received some

of the latter commodities from their Cree trading partners. Significantly, in

keeping with a custom that was widespread throughout Aboriginal Canada, one

of the key ways that the Ojibwa and Cree cemented trading alliances was

through arranged marriages that established kinship bonds with their partners.

As we shall see below, they, and other western groups who were drawn into the

53 Ibid.. " Edward S. Rogers and J. Garth Taylor, "The Northern Ojibwa," Handbook of North American Indians Yolu~ne6: Subarctic. Smithsonian Instihition, Washington, 1981: 233. 55 The late Ed Rogers referred to this loosely bounded network of territories as the 'hunting range system.' Edward S. Rogers, The htmtinggroup - hunting territory complex among tlre Mistassini Indians. Ottawa, Dept. of Northern Affairs and National Resources, 1963. It should be noted that there has been an ongoing and unresolved debate about the nature of Aboriginal tenure systems in the Subarctic and the impact that the Euro-American fur trade had on them. For a discussion of this topic see: AdrianTanner, 'The Hunting Territoly Debate: Some Unresolved Issues,' Anthropologica 28 1986 (1-2), 19-36. Significantly, this debate does not raise the issue of Mhtis land use practices.

115 Ray, Arthur: MJtis Economic Communities andSettlements in the 19" Century - 23 - d-

fur trade at later times, continued this ancient practice after European contact. In -(-5 this way local Aboriginal people linked themselves with the newcomers, who first

came as fur traders. This led to the development of a population of mixed

.. Aboriginal and European ancestry, many of whom developed a distinct identity

as Metis.

The pre-I763 era

For the Ojibwa and their northern Cree neighbors, indirect involvement in the fur

trade undoubtedly began by the late Sixteenth Century, when they supplied furs

to the trading networks of the lnnu (Montagnais) of eastern Quebec and Labrador

and their allies, who dealt directly with Europeans along the lower St Lawrence

and Saguenay River valleys. Between 1615 and the early 1630s, the Ojibwa's

traditional trading partners, the Huron, became the key traders in the French

trading system that was expanding west. This development drew the Ojibwa

more heavily into the European fur trade, led them to devote more time to

hunting and trapping fur-bearing animals, and encouraged them to collect more

furs through their northern and western trading alliances - particularly those with

Cree groups.

The fur trade became highly unstable during this period, however, when

the Iroquois living to the south of Lake Ontario set out to destroy the French fur

trade through warfare. By 1649 the lroquois had annihilated the Huron villages

and sent many of their allies, including some of the Ojibwa, fleeing north and

westward out of harm's way. Significantly, the Ojibwa had taken up horticulture

by this time. They integrated it into their seasonal cycle of economic activity and

116 Ray, Arfhur: Mktis Economic Communities andSelllements in the lghCenruty h-

carried it northwest as they migrated. By the earJy Nineteenth Century, some of

these fishing, hunting, horticultural, collecting and trapping people, most notably

Chief Peguis and his followers, had moved as far west as the Parklands of the

southern Manitoba and adjacent North Dakota area. Significantly, many MBtis

have ancestral links to these Ojibwa migrants.

While the Ojibwa expansion was underway, the French sought to

reestablish direct contact with refugee Huron and their former allies in the Upper

Great Lakes region beginning as early as the 1650s. To accomplish this Medard

Chouart des Groseilliers and a companion traveled to the upper Great Lakes

area in 1654 with a party of First Nations traders, who were returning home from

a trading expedition they had made to the lower St. Lawrence ~iver.~~Soon

thereafter, other unlicensed French traders, known as coureurs du bois,

established unofficial ties with native people in this region. These developments

marked the beginning of intermarriage a la fa~ondu pays between local Ojibwa

and the French newcomers.

The penetration of the upper Great Lakes region by Des Groseilliers and

Pierre Esprit Radisson in 1659, ultimately led to the establishment of the

Hudson's Bay Company (HBC) in 1670. This was because French colonial

authorities refused to back these two traders' scheme to establish a northern fur

trade based on Hudson Bay and James Bay. Groseilliers and Radisson decided

to appeal to the court of Charles II, where they found support for their venture.

Their initial success in James Bay led to the founding of the HBC. The new

56 Dictionary of Canadian Biography Online, http://www.biographi.ca/EN/ShowBio.asp?BioId=34253&q~ie~radisson

117 -- Ray, Arthur: Milis Economic Communitiar andSettlemenfs in the lghCentury -25-

.?-. company gave the Swampy Cree of the southern James Bay and western i Hudson Bay areas and the inland Cree their first direct access to European

-4 trading goods.57 They quickly established trading and marriage links with the

.- newcomers. Soon they also allied themselves with the Siouan speaking

Assiniboine, who at European contact, lived partly in the boundary waters area of - present-day northern Ontario and southeastern Manitoba." The latter people

.- lived in the boreal forest-parkland area and had a mixed economy that drew on

the resources of both environments. Eventually other groups who occupied this

transitional environment, most notably the Parkland-Grassland Cree (Plains

Cree) were drawn into the expanding furtrade.

The establishment of the HBC sparked off an intensive struggle between

the English and the French for control of the northern and western fur trade.

Although the contest initially focused on Hudson and James Bays, it was only a

minor aspect of the much larger ongoing imperial rivalry between England and

France. This larger struggle led to periodic global conflicts. The War of Spanish

Succession (1701-1 714) was one of the most important of these events when

viewed from the perspective of its impact on the early development of the

Canadian fur trade. The warring parties reached a peace accord with the Treaty

of Utrecht, which gave the HBC control of Hudson Bay-James Bay access to the

continent. This prompted the French to respond by encircling these bays to

cutoff the HBC posts from their lucrative hinterlands. From 1715 to 1751, the

French pushed westward (Figure 3). Of particular relevance to MBtis

In the early HBC records these Cree are referred to as the 'Upland and/or Southern Christenaux.' '*Subsecluently these people moved west and northwest. See Ray, 1974.

118 Ray, Arthur. Milis Economic Communities andSettlements in the lghCentury -26- .-

ethnogenesis, by the 1730s the French had reached southern Manitoba and by

1751 they had pushed westward up the Saskatchewan River as far as the forks.

Although they had reached the parklands of the west, only a small number of

Frenchmen were stationed there. Nonetheless, intermarriages with local First

Nations began at this time.

Fur trading rivalries and Metis Ethnogenisis: 1763-1821

The ongoing English-French struggle for empire in eastern North America ended

with the Treaty of Paris in 1763, which brought the Seven Years War to a close.

This event produced only a brief lull in fur trading competition, however. By the

mid-1760s, Scottish, English, and American merchants took over the old St

Lawrence valley-based trading network and they began extending it beyond the

northwestern limits of the French regime. These merchants recruited heavily in

the St. Lawrence valley, especially in the vicinity of Montreal, to obtain the canoe

brigade men and other workers they needed to staff their burgeoning number of

trading posts. Most of the labourers from the Montreal area were partly of

lroquoian an~estry.~'Men who traveled between Montreal and the Lakehead

during the summer were called 'rnangeurs du lard,' or pork eaters, because of

their distinctive voyaging diet, which consisted primarily of corn and pork."0

Those who remained in the interior were known as 'hivernant' or 'winterers.' Of

particular relevance to metissage, winterers not only worked around the posts

59 Nicks, Old Trails 60 he HBC often referred to these men as 'goers and comers.'

119 ..- Ray, Arthur: Mdtis Economic Communilies and Settlemenls in the l!lhCentury -27-

-(-- : during the autumn, winter, and early spring, they also ofien were involved in 'tripping' or 'camp trading.' This referred to the practice of spending part of the -- trapping season in First Nations' camps to prevent the furs of Native People from

falling into the hands of trading opponents. As might be expected, trading

companies commonly used trippers when competition was strong, such as during . . the period from the 1790s until 1821. The practice facilitated interracial

marriages.

120 ,- Ray, Arthur: Mklis Economic Communities andSettlemenls in the 15'h Century -28-

. . ..<~, Ray and Freeman, 1978

121 In 1776 the new group of Montreal-based traders began to join forces in collective partnerships (which they renewed periodically) and by 1779 they had amalgamated into the North West Company (NWC)!' Pooling their financial and manpower resources in this way, and revamping their logistical network, they were able to carry the fur trade beyond the former limits of the French network.

By 1778 they had reached into the Athabasca portion of the Mackenzie River

Basin. The Nor' Westers collective endeavors also enabled them to challenge the HBC much more effectively. Indeed, by the early 1770s they already had undercut the HBC's trade to the point that they forced their rival to move inland to meet their challenge. The English company took the first major step in its counterattack in 1774, when it built Cumberland House on the Saskatchewan

River. This sparked off a fierce rivalry between the two companies throughout the whole territory between the lower Peace River and Lake Athabasca area in the west to the upper Great Lakes Region in the east. Of particular relevance here, the rival groups of traders greatly expanded their networks of trading posts and the logistical systems that supported them. (Figure 4) These developments had three important impacts on the development of the Metis Nation: (I)they led to the diversification of the Metis population in ethnic terms; (2) they led to the regional diversification of Metis economies; and (3) they created a network of posts and related Metis settlements that were tied together by a transportation system.

This partnership was renewed periodically. Between 1798 and 1803 a splinter group operated separately as the New NWC, which is more commonly remembered as the XY Company.

122 Ray, Arthur. Miti8 Economic Communitier andSetflemenls in the lghCentury -30- .-

Figure 4: Fur Trading Networks

. .- Ray and Freeman, 1978

123 ..- Ray, Arthur: Mktis Economic Communities and Settlemenls in the lghCentury -31-

One of the reasons that fur trade expansion led to a diversification of the

Metis population was because it stimulated rapid growth in the number of men

employed in the fur trade from the 1770s to 1821. By 1818 (Figures 5 and 6) the

NWC's labour force numbered just over 900 and most of them were of French

Canadian origin. When the HBC decided to meet its new challengers head-on, it

initially recruited most of its workers in the northern British Isles, mostly the

Orkney Islands and northern mainland Scotland. By 1818 its labour force

numbered just over 550. From the late Eighteenth Century the company also

recruited an increasing number of men from its chartered territory, known as

Rupert's and?' Accordingly, the company directors abandoned their long-

standing taboo against the country marriages of their European (mostly Orkney

and Scottish) recruits and Native women -- a ban that had never been effective

anyway -- and began hiring the male offspring of such unions. Before 1821 the

company listed the 'parish' of origin of these 'natives' as Hudson Bay, Rupert's

Land, 'Indian territory,' and Canada.' After 1821, the engagement registry

increasingly listed the fur trade district of birth for those born in the company's

territory. Research has shown that they became a major component of its

seasonal and full-time labour force by the early Nineteenth After 1818,

the HBC also recruited heavily in Quebec for men of French Canadian and

62 Partly this was because the major period of expansion and rivalry coincided with the Napoleonic Wars in Europe which made labour recruitment difficult and expensive in the British Isles. 63 P. Goldring, 'Papers on the Labour System of the HBC, 1821-1900.' 2 Vols. Parks Canada, Man~iscript Report 362,1979 and Manuscript Report 412,1980.

124 .- Ray, Arthur: Milis Economic Communitiesand Seftlemenfs in the 19* Century -32-

.- f-' lroquoian ancestry.64 Of importance here, a significant proportion of the ' i combined labour forces of the two companies, which totaled nearly 1,500 men in - 1818, married local Native women a la fa~ondu pays. Eventually many of these

men retired in, or deserted in the country. As noted, HBC record keepers

identified the Nor' Westers who did so as 'freemen.' Most of them were Mbtis, or

had fathered Metis families. Significantly, the intermarriages of fur trade

employees with parklandlgrassland First Nations women (Plains Assiniboine,

Cree, and Ojibwa) led to the formation of the buffalo-hunting M6tis by the early

Nineteenth Century. Elsewhere, Euro-Canadian intermarriages with other First

Nations, such as the Woodland Assiniboine, Dene, Cree and Ojibwa groups

contributed further to the ethnic diversity of the emerging Metis Nation in the

Canadian West. Figure 7 summarizes the regional ethnogenesis of the Metis in

Central and Western Canada to 1821.

64 lbid. and R. Cole Harris, ed., Historical Atlas of Canada, Vol. 1. Toronto: University of Toronto Press, 1987, Plate 65.

125 126 Ray, Arthur: Mitis Economic Communities and Settlements in the lghCentur/ -34-

As noted, the second major impact that the expansion of fur trade had on the Metis was an economic one. It led to increasing economic diversification and regional specialization. Research has shown that, among the Aboriginal population, it was the Metis who benefited the most from new employment opportunities. They gained access to the widest array of permanent (annual) jobs as skilled and unskilled labourers. Brigade work in the capacities of

'middlemen.' 'bowmen.' and 'sternmen' comprised the largest ~ategory.'~Also important were positions as interpreters, skilled tradesmen (boat and canoe builders, carpenters, blacksmiths, etc.), and clerks!' They also were retained as post hunters and fishers. They worked in these two capacities either as workers or on seasonal contracts. As general labourers around the posts they performed a wide array of essential tasks. Cutting cordwood was one of the most important and time-consuming of these responsibilities. At the larger posts and important boat-building sites, they also engaged in lumbering and sawmilling 0perations.6~

First Nations people, on the other hand, mostly obtained seasonal employment

65 Brigade men were hired both as permanent and seasonal employees. Goldring and other historians have shown that M6tis employees can be identified with a high degree of probability in these records by several markers. These are, in combination and relative order of importance, parish of recruitment (a servant's homeland), family name, capacity (occupation), and, when available, place of retirement. Typically, M6tis of French CanadiadNative extraction used French Canadian (though occasionally Native) surnames, were recruited in (lower) Canada or Indian country. Those of English, Scottish, and OrkneyNative background were recruited in 'HudsonBay' or 'Indian ~ountry.'~'Goldring, 1980. 67 Moose Factory would be one of the best examples. Here the Hudson's Bay Company operated the so- called 'Moose Works' which built sailing ships and York boats. A saw mill was part of the works. By the Twentieth cenhuy, the M6tis dominated the labour force of this operation. Arthur J. Ray and Carol M. Judd, 1982, "Moose Factory's Maritime Heritage," 98 pp. (Prepared for Ontario Ministry of Citizenship and Culture, 77 Bloor Street West, Toronto.) At York Factory, timber harvesting for construction and firewood purposes led to the deforestation of a large area around the post. See, Arthur J. Ray, "York Factory: The Crises ofTransition, 1870-1880," The Beaver, 1982,312: 26-31.

127 *... *... Ray, Arthur: Mhfis Economic Communities andSettlemen~sin the 15" Century -35-

- as unskilled labourers or post hunters and fishers. The primary reason for this <-; - discriminatory hiring policy was that fulltime employment drew Indian men out of the 'bush' and away from hunting and trapping. The fur traders recognized that a

strong hunting and trapping labour force was, after all, the driving force of the

industry.e8 These hiring practices influenced the development of Metis and First

Nations identities in the period before 1821. The Metis developed a more

diversified economy that combined living off of the land in Aboriginal fashion with

other economic pursuits as labourers, entrepreneurs ('free traders'), and, in many

areas, as small-scale farmers. Farming was especially important in the Great

Lakes, boundary waters (Rainy River-Lake of the Woods), and

parklandlgrassland areas for Metis and Ojibwa alike. First Nations people, on

the other hand, tended to live a more traditional life in the 'bush.' (Figure 8)

They interacted with the commercial economy primarily as independent

producers (mostly as fishers, hunters and trappers) and as unskilled summer

workers.

I have noted that this practice continued into the industrial age of the late Nineteenth and 20'~Centuries. Arthu~3. Ray, The Canadian Fur Trade in the Industrial Age. Toronto: University of Toronto Press, 1990.

128 .- Ray, Arthur: Mitis Economic Communities andSeNlemenls in the lghCentury -36-

FIGURE 6: HBC Labour Force, 1818

Historical Atlas of Canada ,Vol. 1, Plate 65

129 - Ray, A~thur:Milis Economic Communities andSetllements in the 19' Cenluv -37-

Besides having a differential impad on employment opportunities for MBtis

and First Nations people, the competitive trading economy of this era offered

both groups very favourable rates of exchange for their furs6' and 'country

produce.' The latter types of commodities included locally produced food (most

notably fresh and dried buffalo meat and grease, pemmican, venison, moose

meat, waterfowl, and a variety of fresh and smoked fish), canoes and canoe-

making and repairing supplies (birch bark, spruce root, pine tar), as well as a

wide variety of other products.

But, there was a negative side to this development. By 1821 the scramble

for furs led to a depletion of stocks throughout the woodland area south and east

of the Churchill River. Likewise, the high prices paid for food encouraged the

hunting of woodland caribou and moose populations beyond sustainable limits

throughout the same area. The latter problem enhanced the importance of the

fisheries to the sustenance of trading posts in the woodlands.70 It also made the

products of the bison hunts crucial to the support of the logistical systems of the

rival trading companies (Figure 9). It is generally agreed that, without the produce

of the bison hunts, expansion overland from Montreal into the Mackenzie River

basin would not have been possible. This reality sparked the so-called

Pemmican War of 1816. This skirmish, made famous by the Battle of Seven

Oaks (1816) may have been the first use of the Metis Nation Flag, took place

because, in 1811, the HBC approved Thomas Douglas' (the 5'h Earl of Selkirk

69 It should be noted that from the earliest days of the fur trade men who worked at trading posts and their family ~ne~nberstrapped locally to buy goods. 70 In the early 20' century, fur trader Anderson wrote that, without 'the humble fish' it would have been impossible to conduct the fur trade in the boreal forest region. J. W. Anderson, A Fur Troder's Story. Toronto: Ryerson Press, 1961.

130 .- Ray, Arthur: Mdtis Economic Communities andSettIements in the 19~Century -38-

and an important shareholder) plan to establish an agricultural colgny on the

banks of the Red River. The NWC regarded the settlement as a strategic threat

to the vital food supplies that it received from the Assiniboine River Country.

These fears were realized when the governor of the fledgling Selkirk Colony

placed restrictions on running [hunting] buffalo on horses7' near the colony and

banned the exports of pemmican and buffalo meat from the area to safeguard

the food supplies of the fledgling colony. The problem was that the colony was

not yet agriculturally self-sufficient, a goal it failed to achieve before

Confederation. This meant that the produce from the buffalo hunts remained

essential for its survival before the 1870s. This is clear from Table 2.

" This prnctice kept the herds distant from the colony and made it difficult for the colonists to hunt the animals because they lacked horses.

131 Ray, Arlhw: Mdtis Economic Communitier and Settlements in the lghCentury -39-

-- 'P!

.A FIGURE 7: Metis and Anishnabai (Ojibwa) Worlds

.- ** ..

PrairieIParMand Assiniboine, Cree,

a.*.****.**

132 Ray, Arthur: MAis Economic CommuniMes andSeltlements in the 1PhCentury -40-

133 .-. Roy, Arthur: Mktis Economic Communities andSetllements in the lghCentury -41-

In addition to the produce of the hunts and fisheries of the woodlands,

parklands and grasslands, corn, potatoes, wild rice, and maple sugar produced

by the Metis and First Nations contributed greatly to the support of the fur trading

companies in the Great Lakes-Boundary Waters-western interior regions.72 This

is evident from Tables 2 and 3. Table 2 shows the movement of country produce

in and out of the important HBC post of Cumberland House. As Figure 9 shows,

this post was a vital transport junction and depot on the HBC routes to the

northwest and western prairielparklands. Table 3 shows the important role plains

provisions played in the HBC's Northern Department (all of the area between the

Rocky Mountains and Hudson Bay) until the destruction of the bison herds. It

should be emphasized that these tables provide only a partial picture of the

country foods that the company consumed annually, because they do not include

fish, meat, and vegetable products that are harvested and consumed locally.

Significantly, it is clear from the above discussion that by 1821, when the

HBC and NWC merged, the economies of the MBtis settlements that had

developed adjacent to trading posts were highly diversified (Figure 10). These

economies also were opportunistic in that they responded to changing local

economic and ecological circumstances.

72 It should be noted here that the Ojibwa had introduced agriculture to theupper Great Lakes area after 1649 when their traditional suppliers of corn, the Huron, were attacked and dispersed by the Iroquois.

134 - Ray, Arthur: M6lls Economic Communilies andSettlements in the I#h Centum -42-

Figure 9: Prairie Provisioning Network, ca. 1821

0 Hudson Bay Provision Dqlat -----) Flow of Provisions Parkland &It INorth West Company Provision Depot Principal Fur Trading Routes Ray, 1974

135 Ray, Arthur: Mklis Economic Communities and Settlements in the lghCentury

.- FIGURE 10: Generalized Model of Metis Economies

ENTRE-

WAGE

COLLECTING C = Commercial S = Subsistence

136 ..- Ray, Arthur: Milis Economic CommunitiesandSe~lemenls in the Igh Century -44-

'-0 -. Table 2: lmpottslExports Country Produce, Cumberland District, 1823-2473

T3 PAMHBC Cumberland House Accounts, B 49/D/14

137 - Ray, Arthur: MdfisEconomic CommunifiaandSeienlements in the I#' Cenluy -45-

Table 3: Country Foods Supplied by HBC's Northern ~epartment'~

138 Ray, Arthur: Mitts Economic Communities andSelllemenls in the IghCentury -46- ,- I

139 .- Ray, Arthur: Milis Economic Communities and Settlements in the Iqh Century -47-

111

REGIONAL PATTERNS TO 1820-70

As noted above, the expansion of the fur trade into different

cultural/ecological/subsistence zones of pre-contact Canada led to the development of

distinct regional M6tis economies (Figure 11). These included: (1) the Great Lakes-

.- Boundary Waters zone; (2) the boreal forest-parkland, (3) the boreal forest (which had

.- many local variants), and (4) the parkland-grassland zone. I will now briefly highlight these regional economies focusing on a few selected Mktis settlements that had emerged

by the Nineteenth Century. Of necessity, I have chosen ones that already have received

scholarly attention.

The Great Lakes-Boundary Waters Zone

As discussed above, along the shorelines of Lake Huron and Lake Superior fisheries were

the mainstay of local First Nations and M6tis economies before and after contact. In fact,

over-hunting and trapping during the fifty-year period before 1821 forced local fur

traders, Mdtis and First Nations to rely more heavily on their fisheries for subsistence and

commerce. This is clear from the HBC report for the La Cloche district in 1828. This

district included the north shore of Lake Huron and the lands in the interior. The district

manager noted:

the country North of Lake Huron and Nipissingue affords very few of the large species of animals. If except and for a very few scattered Rein Deer and Bear, the only kinds of animals which afford sustenance to the natives are the Rabbits and a very few remaining Beaver, and even of these it is out of the power of the best hunter to procure a sufficiency to maintain himself & family. What contributes greatly to the annual starvation of the natives and whites in that part of the country is the entire scarcity of fish throughout. The only part of the district where the Indians live tolerably well, is .. . the southern part of the British Temtory on this lake.

140 Ray, Arthur: MbNs Economic Communilies andSettlemenfs in the IVh Century -48-

141 Ray, Arthur: Milis Economic Communities andSetllements in the lfl Century -49- The company's trade in Lake Huron district is carried on at nine different stations- namely La Cloche, Missisague, Green Lake, White Fish Lake, French River, Nipissingue, Sheshainanga, Isle aux Sable and -r\ Lagingue [?I. The last fisheries, at such of the company's posts where fish can be procured has been very unproductive and in some places they have completely failed. This is entirely owing to the height of the water & the high winds we had in the fall. This failure would have been seriously felt at some of the company's establishments had we not been prepared to guard against it in time. The fish procured in the fall is generally trout & white fish which are caught with the Nets, lines, and spears and salted for winter. Where fish is procurred and salted men are allowed 6 lbs fish and one gallon of potatoes per diem, and when fish are not to be had, they get 1 quart of Hulled corn and 1 112 ounces of Grease, with now and then 2 lbs flour in lieu of the corn. The opposition people are fed from salt beef, salt pork, flour and Pease as much as they can eat. This causes many mumours by the companys servants and it a very great temptation to the whole of them to join the opposition... 75

The report for the Michipicoten (Superior) ~istrict~~for the same year noted similar

conditions:

The animal creation of this District is much decreased. With the exception of a few Rein Deer (woodland caribou), every variety of the Deer Species appears to be extinct. Of the fir bearing animals we have the Black Bear in considerable number, the Beaver, otter, Mink, Muskrat, fisher, Lynx, Cat, Martin and Rabbit. The wolf and Wolverine are rarely met with. I have not doubt but that the number of fur bearing animals is annually diminishing, Yet I have been a good deal surprised that there are so many -- in a country which has been so long established. The most permanent advantage which this District appears to possess is its proximity to Lake Superior and St. Mays --from the latter of which it procures large and cheap supplies of Stores and Provisions, without which the Trade, under the present reduced state of the county, could not be carried on to any considerable advantage and the vicinity of the former enables the company to perform the Transport by means of an establishment which under other circumstances would be far from being adequate to the task ... (emphasis added) The local means of subsistence which this district affords, with the exception of Lake Nipigon are precarious and considerably under the demand; besides being comparatively expensive. It consists exclusively of various kinds of fish, which periodically visit the shores of this extensive Lake, such as Trout, Tittamingue or White fish/ an excellent species unknown in Endandl a kind of Herring (smelt), and others of less estimation

"Provincial Archives of Manitoba: Hudson's Bay Company Archives (PAM HBCA) La Cloche District Report, 1827-8 B 109/e/l, 1-3. 76 Ft. Michipicoten was the district headquarters. A Mbtis settlement was located there.

142 Ray, Arthur: M4lk Economic Communilles and Seltlemen~sin the lghCentury -50- .- and more limited numbers. It is very rare that great numbers of Trout and Tettamigue some seasons visit the shores of the Lake for the purpose of casting their spawn, but they frequently change situations and our Establishments cannot aford many people to attend to the fisheries -- the produce of which is invariably put into pickle to preserve them for winter consumption, (emphasis added) Hence vegetable ... production becomes an object of importance at all our ~stablishrnents.~~

Similar conditions prevailed at Fort William, which was located on the northwestern

shores of Lake Superior. The district reports for the early 1820s also speak of the

importance of the local fisheries and of the need to supplement them with corn, potatoes,

and imported

In summary, lakeshore trading posts and native settlements (Mbtis and First

Nations) obtained most of their sustenance from the fisheries. As we will see below, the

fishery at Sault Ste. Marie was the most important and normally produced surpluses that

the company supplied to other districts. This had probably always been the case, but the

depletion of fur and game resources would have accentuated the tendency. Hunting and

trapping inland and along the lake shore remained an important secondary activity,

however.

The productive lakeshore fisheries meant that the Native population of the region

-including the Mktis - was concentrated in settlements along Lake Huron and Lake

Superior. Prior to concluding a treaty with the Native people of Lakes Huron and

Superior, government negotiator W. B. Robinson sought to determine their population.

On 24 September 1850, in a 'Report (of the) arrangement with Lakes Superior and Huron

Indians' that accompanied the two treaties he wrote: 'while at Sault Ste Marie last May

(1 849), I took measures for ascertaining as nearly as possible the number of Indians

inhabiting the north shores of the two lakes; and was fortunate enough to get a very ... [?I

" hlichipicoren Disuict Report, PAM ElBC B 129/e/5, p. I " Fort William District Report PAM HBC B 23l/c/l-4.

143 Ray, Arthur: Mbtis Economic Communilies and Senlements in the 1ghCenlury -51 - "M census, particularly of Lake ~u~erior.'~~Robinson added that on Lake Superior there '7-7 were: 'including Eighty four half breeds, about fourteen hundred & twenty two, and on Lake Huron about fourteen hundred & twenty two, including possibly two hundred half

breeds..."' Robinson's remarks are significant in that he clearly was using the word

'Indian' as an inclusive term to include First Nations and MBtis. HBC and other accounts

suggest that in the Lake Huron area most of these MBtis were settled along the coast

between Garden River and Sault Ste. Marie, while in Lake Superior country they were

concentrated at Michipicoten, Pic River and Fort ~illiam.~'

As noted earlier, MBtis settlements had been forming around the fur trading

settlements of the Great Lakes since the Eighteenth Century. By the early Nineteenth

Century, there were over fifty of these settlements. Sault Ste. Marie was one of the oldest

and most important settlements in the upper lakes area. Unfortunately, there are few

detailed descriptions of the settlement in its early days. Nor' Wester Alexander Henry

(the elder) visited it in 1761 and noted that there were only four h0uses.8~What Henry

did not mention, however, was that the site was (and would remain) a great summer

rendezvous for Natives and traders alike, partly because of the fisheries at St. Mary's

rapids were the most productive in the region. Jean Baptiste Cadot (also spelled

Cadotte), his Ojibwa wife and their family -- one of the oldest MBtis families in the upper

Great Lakes -- were among the residents at Sault Ste. Marie in 1761. Cadot had been

active in the Superior area since 1742, when he first served at Nipigon, and traded at

" W. B. Robinson, 'Sept. 24,1850 Report arrangement with Lake Superior and Huron lndians and transmits two Treaties.' NAC Indian Affairs, RG 10, Vol. 191, no. 5401-5500, pp. 111713. "Ibid. Robinson added that the Chiefs of Lake Superior said their population numbered closer to 8,000. See also, T. G. Anderson and Alexander Vidal, 'Report to His Excellency, the Govemor-General in Council, Toronto, 5 December 1849.' Archives of Ontario [OAC] F 1027-1-2 Robinson Treaties. Arth11r 3. Ray, 'Final Historical Report on the Metis Economy, Sault Ste. Marie for R. V. Powley. Unpublished. "'Peterson, 1985, p. 58.

144 Ray, Arthur: Milis Economic Communities andSettlemen~sin the 1ghCentury -52- .d Sault Ste. Marie from 1750 to 1762.'~ His family maintained their roots in the region .-r: thereafter, but some descendents moved as far west as Red ~iver.'~ Sixteen years after Henry's account, John Long visited the settlement and

reported: 'Here (at Sault Ste. Marie) is a small picketted fort built by the Indians, and

about ten log houses for the residence of English and French traders. The nation of the

Saulteurs formerly were settled at the foot of the falls, and the Jesuits had a house near

them.'8s Subsequently, the NWC established operations on the north side of the river and

constructed a canal and locks for its canoes in 1797. Meanwhile, American merchants

established themselves on the south side of the river and this settlement became a major

trading centre for the entire Lake Superior region.

In 1820, Henry R. Schoolcraft visited Sault Ste. Marie and provided the most

detailed description to date of the dual settlements that were developing:

The village of Sault de St. Marie, is on the south or American shore, and consists of from fifteen to twenty buildings, occupied by five or six French and English [Mktis] families. Among the latter is that of J Johnston, Esq. a gentleman of rank, who, in the prosecution of the northwest fur trade, settled here shortly after the close of the American revolution, and married the daughter of a Chippeway chief (Waubjeeg).... The site of the village is elevated and pleasant, and a regular plan appears to have been observed in the buildings, though some of them are in a state of dilapidation, and altogether it has the marks of an ancient settlement fallen into decay... Schoolcraft continued:

It has always been the residence of Indian tribes, who are drawn to this spot in great numbers, by the advantages of taking the white-fish, which are very abundant at the foot of the rapid. There are, at present, about forty lodges of Chippeway Indians, (called Saulteurs, by the French) containing a population of about two hundred souls, who subsist wholly

83 PAM HBC Archives Library, summary history of Sault Ste. Marie. '' For a history of the Cadotte family see: Theresa M. Schenck, 'The Cadottes: Five Generations of Fur Traders on Lake Superior,' in J. Brown, et. al., eds. The Fur Trade Revisited: Selected Papers of theSixt11 rlrorlh American Fur Trade Conference, Mackinac Island, Michigan, 1991. Michigan State University Press: East Lansing, 1994, pp. 189-98. See also D. N. Sprague and R. P. Frye, 1Xe Genealogy of theFirst MefisNation. Winnipeg: Pemmican Publications, 1983: Table 1. 85 R. G. Thwaites, ed. 'JohnLong's Journal, 1768-1782' Early Western Travels, 1748-1846, Vol2. Cleveland: Arthur Clark, 1904, p. 79.

145 - Ray, Arthur: Mdfis Economic Communilles and Senlements in the Igh Cenftrry -53- upon white-fish. ... This fishery is of great moment to the surrounding Indians, whom it supplies with a large proportion of their winter's T'i provision ... they cure them by drying in the smoke, and lay th& up in large quantities.

Regarding the community on the British side, Schoolcraft observed:

On the north, or Canadian shore of the river, there are also six or seven dwelling houses, occupied by French and English families [M6tis], exclusive of the Northwest Company's establishment, which is seated immediately at the foot of the Falls, and consists of a number of store and dwelling houses, a saw mill, and a boat yard .... this company have also constructed a canal, with a lock at its lower entrance, and towing path for drawing up barges and canoes. At the head of the rapid they have built a pier from one of the islands, forming a harbour, and here a schooner is generally lying to receive the goods destined for the Grand Portage, and the regions northwest of Lake ~u~erior.8~

Following the 1821 merger with its old rival, the HBC took control of the NWC

operations on the Canadian side of the river. Fur trading was not significant. HBC Chief

Factor at Fort St. Marys, Angus Bethune, explained why:

The Indian Trade is an matter of little import, the whole amount of Furs collected at St Marys by all the Traders (of whome there are a great many, for every shop keeper on the other side of the River .. is a trader) amounts the present year to about £ 1000. Mr Ennatinger is the principal one, and he has told me, that his collection including what he has picked up in sundry trips in the south Side of Lake Superior amounts to £700, his profits however are nothing; The Expense attending his mode of Trade is Enormous, and his trouble beyond conception. I have known several instances of his sending two men out to colllect furs, each man having 51- p day & Rations, to be absent eight days and return with only one Martin Skin; and the best winter Trip, which are few, never exceed Twenty Skins, and such is reckoned excellent by those employed ....87

It shodd be noted here that Mr. Ermatinger, Bethune's source of information, belonged

to a M6tis family, which had Ojibwa links throughout Superior country extending as far

northwest as Rainy Lake (Lac la ~luie).~~

86 Schoolcraft, p. 95-6. 87~eth~neexplained:. St Mary District Report for 1825, by Angus Bethune, B 194lel2, p. 2. Anderson, 'Report,' p. 6

146 Ray, Arthur: MPlls Economic Communilies andSefllemenls in the 19~Cenhrry -54- For these various reasons the HBC continued to operate the St. Marys post primarily as a depot. This meant that most of the economic activities that took place there were oriented toward obtaining food, mostly fish and some garden produce (mostly potatoes); maintaining boats, buildings, and grounds; and providing transportation. This is evident from Table 4, which lists the occupations of the Mbtis men who worked for the

HBC as servants or on short-term contracts as freemen.

The St. Mary's post journal for 1824-25, gives us important insights into the economic rhythm of the community and roles the local Mbtis played in it. On 1

September 1824 Chief Factor Bethune reported that the: 'engaged men of the post are

Arnable Bienvenue, Phillipbert Seccard, Charles de Lome, and Antoine Bourgeau. The porkeaters are Vital Mandville, Francois Buchon, Jean Bon Enfant, Joseph Pichette,

Joseph La Tourelle, Michel Chretien, Pierre Gaudert, and Antoine La ~ertin.~~The discharged servants of the post ( i.e., local retired residents) are Joseph Couture and

Martin Boulez; those from Lake Superior District are Louis St Jean, Xavier Mellorrie,

Amable Dupres, and Clarke Ross ...there is an old man, ~ose~hLa Verduce, a freeman who is in the habit ofjobbing about the fort for his Two days later, Bethune:

'Entered engagements with two freemen ... their names are Francois Topier and Jean Bte. ~errault.'~'The next day: .'.. there were some Freemen ... applying for labour.'

Subsequently, Bethune made arrangements with other Freemen. One of these was

Michel Bousquet, who contracted to fish for the post in the autumn.92On October 1,

Bethune also contracted with Antoine Gingras to barter for fish at the Sault Ste Marie

These men departed on their return trip to Montreal on 2 October, with the exception of Antoine Bourgeau, who remained to bake bread. Fort St Mary's Post Journal, PAM HBC B149Iall 1824-5 9' Ibid. Later, on 10 October, Topier left for Red River. On 9 November: 'La batt, a daily labourer ... commenced workin place of Perrault ...' 92 Bid. 22 September 1824.

147 - Ray, Arthur: Milis Economic Communilies and Se~llemenuin the lqhCenluv -55- rapids. On October 3rd, Bethune made a similar arrangement with Alexis Cadotte, 'a

Native of St. Mary's.' Besides obtaining fish from MBtis and Indians through contract93

and by using M6tis buyers, Bethune also secured what he needed directly from local

MBtis fishermen. For instance, on 5 October he noted: 'The halfbreeds begin to come

now of their own accord with fish.'

Regarding fishing and related activities, Bethune indicated that there was another

fishery beyond the rapids at 'Pointe aux pins,' where on 12 September a Mr. Sayer was

'making nets and Scoops.' He also indicated that 'the Women,' in other words, the wives

and daughters of the men, cleaned and preserved the fish that were brought to the post.

This female work force also helped harvest the potatoes, taking up 17 kegs on October 5.

This was a customary practice at most company trading posts?4 These remarks serve to

highlight another important aspect of the fur trade and Metis economies. As was the

practice in First Nations' economies, women played economic roles that complimented

those of the men. Perhaps most notably, they processed and preserved food obtained by

hunting, fishing, trapping, and collecting and they made clothing from the hides and

f~rs.'' They (often assisted by their children) also were heavily involved in farming

during the summer, which was the time many of their husbands were away working on

the canoe and boat brigades or trading. Also, they helped make snowshoes and canoes.

I.'On Sept. 15 Bethune recorded: 'Some Indians belonging to this place have engaged to fish. I have advanced then1 twine to make scoops for that purpose ...' " The standard work on this topic is Van Kirk, S. Many Tender Ties: Women in the Fur Tmde Sociely. 1670-1870. Winnipeg: Watson & Dwyer Publishing Ltd. 1980. 95 Making clothes continued to be important for the conduot of the fur trade. For example, at York Factory as late as 1800 women were making over 650 pairs of moccasins for the men's use during the summer. Van Kirk, 54. For an extended discussion of the economic roles of women see Van Kirk, 26-29; 52-73.

148 - Ray, Arthur: Milk Economic Communities and Settlements in the 19~Century -56- TABLE 4: M~TISLABOUR FORCE FT. ST. MARYS, 1824-996

NAME PARISH CAPACITY DISTRICT -TIDIED YEAR Bienvenue, Arnable Labourer St Mary 1824-5 Bon Enfant, Jean Canada Porkeater St Mary 1824-5 Bosquet, Michel* St Mary freeman - contract fish buyer St Mary 1824-5 Bourgeau, Antoine Labourer St Mary 1824-5 Buchon, Francois Canada Porkeater St Mary 1824-5 Cadotte, Antoine* St Mary freeman - contract fish buyer St Mary 1.824-5 Chretien, Michel Canada Porkeater St Mary 1824-5 Couture, Joseph St Mary discharged labourer St Mary 1824-5 de Lome, Charles* Labourer St Mary 1824-5 Dubois, Joseph* L. Superior Died 1828-9 Dupras, Amable* Lake Superior Boatmen St Mary 1824-5 Frichette Labourer St Mary 1828-9 Gaudert, Pierre Canada Porkeater St Mary 1824-5 Ginps, Antoine* St Mary freeman - contract fish buyer St Mary 1824-5 Ginps, Antoine* St Mary freeman - contract fish buyer St Mary 1824-5 La Fertin, Antoine Canada Porkeater St Mary 1824-5 La Tourelle, Michel Canada Porkeater St Mary 1824-5 La Valle* boatman ? Batchewana 1828-9 La Verduce St Mary freeman -jobber St Mary 1824-5 Le Mai* Labourer St Mary 1828-9 Mandeville, Vital Canada Porkeater St Mary 1824-5 Martin, Boulez* St Mary discharged labourer St Mary 1824-5 Mellorrie, Xavier Lake Superior Boatmen St Mary 1824-5 Perrault, Jean Bte* St Mary freeman - labourer St Mary 1824-5 Pichette, Joseph Canada Porkeater St Mary 1824-5 Quebec labourer/boatman St Mary 1828-9 Ropertin labourerlboatman St Mary 1828-9 Ross, Clark* Lake Superior Boatmen St Mary 1824-5 Seccard, Phillipbert Labourer St Mary 1824-5

96 HBCA Fort St. Marys Post Journals, B149/a/l4 1824-9

149 .- Ray, Arthur: Metis Economic Communilies and Setllemenls in the Igh Cenluv -57- Topier, Prancois St Mary freeman - labourer St Maty 1824-5 *Surname also RR 'c-~l

.- An in-depth analysis of the HBC records for the upper Great Lakes and the adjacent

boreal forest region of present-day northern Ontario and the adjacent Rainy River country

by Charles A. Bishop and Arthur J. ~a~~~indicate that the hunting and trapping economy

of the region was in great difficulty by 1821 because of the widespread depletion of

beaver, moose and caribou populations. As noted, this heightened the relative

dependence on local fisheries, horticulture where practiced, and other small animals,

particularly hare and rabbit.

At St. Mary's, Bethune very seldom commented about aspects of settlement life

that did not relate to economic affairs at his post. He made one of these rare observations

on 24 March 1825 when he noted: '...a house in the suburbs, the residence of Mr Black

and Old Piquette was burned together with their store and all belonging to them...'. This

brief remark does indicate, however, that other MBtis traders were present on the

Canadian side.

From the above it is clear that Sault Ste Marie was supported by fishing, fish trading,

labouring, farming and free-trading. In this respect it was typical of MBtis settlements in

the region. When the local fisheries failed or food supplies ran short, the Sault Ste Marie

MBtis often traveled to visit their relatives at Michipicoten. Thus, the fishery at the latter

settlement served as an emergency resource for Sault Ste ~arie?~Hunting had

temporarily been reduced to secondary economic importance because of depletion

97 Bishop, 1974 and Arthur J. Ray Indians In The Fur Trade: Their Roles as Hunters Dappers and Middlemen. Toronto: University of Toronto Press, 1998 [I9741 and Ray, 'Final Report.' 98 It served a similar role for the First Nations people who lived in the interior. Ray, 'final report.'

150 - Ray, Arthur: Mdlls Economic Communilies and Selllemenls in the 19" Cenltrry -58- problems. Although the Mktis anchored their lives on the small family farms that

reached back from the riverfront, they roamed over a vast area. For this reason, the MBtis

socioeconomic community was not limited to the boundaries of the built-up area and

cleared fields of the settlement, but rather, it included its sprawling hinterland.

In 1893, Stipendiary Magistrate for Northern Ontario, E. B. Borron, took a

deposition from MCtis interpreter John Driver of Garden River, ~ntario.~~Driver had

lived in Sault Ste. Marie in 1850, when the local Ojibwa and MCtis negotiated the

Robinson Treaties. He provided Boron with a thumbnail sketch of the economic life of

the MCtis men of the settlement who had retired from the fur trade. Table 5 summarizes

Driver's information and Figure 12 presents it spatially. It is clear from Driver's

observations that the Sault Ste Marie MCtis continued to tap avery large area in the

course of their annual cycle. As the discussion that follows will show, in this respect, it

was similar to western MCtis settlements.

99 John Driver to E. B. Borron, 5 June 1893, Sir Aemilius Iwing Papers, Ontario Archives, Robinson Superior Treaties, 1850,F1027-1-2,27132110.

151 Ray, Arthur: Mdlis Economic CommuniliesandSettlemenls in the 19' Cenhrry -59-

TABLE 5: METIS SEASONAL CYCLE OF ACTIVITIES SAULT STE. MARIE LATE NINETEENTH CENTURY

152 Ray, Arthur: Milis Economic Communilies andSefllemenls in fhe lghCenlury -60-

' FIGURE 12: Hinterland of Metis Community of Sault Ste Marie, 1850-65

153 - Ray, Arthur: Mills Economic Communities undSefllementsin the I@~Century Southern Boreal Forest-Parkland: Lake Manitoba

As noted above, in the late ~i~hteenthCenhuy MBtis families began to gather around

posts in the woodlands and parklands of the western interior of Canada (Rocky

Mountains to Hudson Bay). The parkland posts of Fort Pembina area were an example.

This was because fur depletion in the Great Lakes area led Mktis traders and trappers to

winter as far west as the Red River near the present Canada-United States border.Io0

Their movements paralleled those of the Ojibwa with whom they were closely connected.

This was made clear by the journal of trader Jean Baptiste Chaboillez for 1797-98. He

kept this record when he was situated on the Red River, initially part way between the

forks of the Assiniboine River and the forks of the Pembina River, and soon thereafter

near present-day Pembina, North Dakota. Chaboillez indicated that three groups of

Ojibwa from northern Minnesota (particularly the Red Lake area) had recently begun to

winter in the Red River valley and as far west as Hair Hills [Pembina Hills] in order to

hunt (woodland game and bison) and trap. In early summer they returned to their

summer fishing, wild rice gathering places (autumn), and maple sugar making camps

(spring) in ~innesota."' Cabouillez's journal, and that of Alexander Henry the Younger

for 1801-02,'~' and those for the nearby HBC's Pembina Post (for period 1808-18),

reveal that the Canadian winterers and freemen also developed a way of life that drew on

the parklands and grasslands of the Red River valley and the woodlands to the east. In

the winter, for instance, some of these men spent part of their time in the Pembina Hills

(and probably Turtle Mountain), en derouine (camp trading) with First Nations trappers

loo ~ns,1996, p.15 lo' Harold Hickerson (ed.), 'Journal of Charles Jean Baptiste Chaboillez, 1797-1798," Ethnohistory 6 (x & x , 1959,265-316 &363-427 'b ' Henry, A. NewLight on the Early History of the GreaterNorthwe~t:TheMantcscriptJournals of Alexander Henry and of David Thompson. Ed. by Elliott Coues. Minneapolis: Ross & Haines, 1965.

154 - Ray, Arthur: Milis Economic Communilies and Selllements in the 15'~ Century - 62 - and hunters. Trading activities also encompassed most of the local tributaries of the Red - Ti River (Morris River, Pembina River, Rat River, Roseau River). Henry stationed men at outposts as far north as Lake ~anit0ba.I'~Henry's journals and those of the local HBC

post (for list of HBC servants see Pembina Accounts) make it clear that the men attached

to the posts and the local freemen hunted bison in the vicinity of the Pembina River-Red

River forks. They also netted fish locally, especially sturgeon. Henry's journal makes it

clear that fisheries were very important, especially in the spring.lo4 The traders operating

in this area also obtained wild rice and maple sugar through exchange by traveling east to

Leech Lake and Upper and Lower Red Lake. 'OS To preserve meat and fish supplies

Henry's men also made salt on the Morris River. His account also makes it clear that the

women (married to the servants) made maple sugar. In this way, the Pembina posts

tapped a vast and ecologically diverse region. (Figure 13)

lo31bid.,233-237. "'~n MarchHenry reported: 'We take plenty of sturgeon. Settled the mbn's accounts and hired some of them for three years.' In May he wrote: 'We take from 10 to 20 sturgeon per day; one weighed 125 pounds. Coues, 21 1 and 242. '05 Hickerson, 270-71 and Coues, 126,156, and 212-13.

155 Ray, Arthur: Milis Economic Communities andSelllemenls in the I$ Cenruy -63- ,-

FIGURE 13: Pembina Hinterlands ca. 1800 - 1815

156 Ray, Arfhur: Milis Economic Communities andSefllemenlsin the IghCentury -

With the establishment of the 491h parallel as the southem boundary of British -fi North America in the prairie region in 1818, many of the M6tis living in the Pembina

area subsequently moved north''' and settled along the Assiniboine River west of the

forks and on the southeastern shores of Lake Manitoba at St. Laurent and nearby Oak

~oint."' Here they continued to tap the woodlands and parklands, but became much

more reliant on their fisheries, especially after the 1850s. In this respect they developed a

lifestyle more similar to the Sault Ste Marie MBtis. The St. Laurent and Oak Point MBtis

fished at various locations on the lake during the open water season. These MBtis also

engaged in ice fishing. For the latter winter activity, Dog Lake and River were

particularly important (Figure 14). Bison hunting remained an important activity for

these southern Lake Manitoba MBtis until the herds collapsed. They pursued these

animals during the winter in the vicinity of the Whitemud River and Riding Mountain. : They took other woodland game at these times also. After the middle of the Nineteenth

Century hunting pressure forced the bison herds to retreat southwestward toward the

Cypress Hills leaving the Manitoba settlements beyond their range. This forced these

M6tis to join those from other parkland settlements in the grasslands to the southwest.

Salt-making was another important winter activity that took place in this outer zone. The

St. Laurent-Oak Point MBtis made their salt at Duck Bay on Lake Winipegosis near the

present-day M6tis settlement of Clearwater, Manitoba.

'06 Most did so after 1823 when the boundary was demarcated. They had been urged to do so by Catholic Missionaries and the HBC. W. L. Morton, Manitoba: A History. '"~ns, 1996, p.21.

157 158 - Ray, Arthur: Mdtis Economic Communities andSeltlemenfs in the lghCentuv After the early 18209, the St. Laurent-Oak Point M6tis engaged in limited farming

during the summer and early autumn at their settlement. In the vicinity of these

settlements they also hunted waterfowl in the autumn and spring and did some trapping

(especially muskrat) during the winter. M6tis merchanthtee traders also operated in the

settlement and they combed the countryside from Riding Mountain to the Interlake

Counhy. By the early 1880s some members of the settlement spent part of the summers

working for farmers near Portage la Prairie. Others took advantage of the short-term

opportunity to take part in railway construction to the south.

With the retreat of the bison herds, some Metis from this settlement moved west.

Others moved north and continued their involvement in the regional fUr trade. Many of

these families were active (both permanently and seasonally) in the vicinity of HBC's

Manitoba House, and its outposts of Shoal River, Fairford, Waterhen, and Pine Creek -, (especially the latter) where they traded furs and fish, practiced small-scale farming,

especially raising cattle, and they operated as 'petty traders' dealing with and in

opposition to the HBC. This is clear from Table 6, which lists the customers at the

HBC's Manitoba House in 1891. It is clear many of the families represented were

originally from Red River. Others were fiom St. Laurent. One of the most notable of the

latter was William Chartrand, who operated at Shoal River and Pine creek.''' (Table 5)

The Chartrand family was among the earliest M6tis families to take up residence at St.

~aurent.''~The Ducharmes were another old St. Laurent and Red River family that was

active around Manitoba House.

""PAMBC, Manitoba 1)istrict Reports for 1889 and 1891, B 153/e/3,8 & B 153/e/5,6. Chartrand had run up the largest debt with the company locally (at three different posts) and by 1891 he was opposing the company. 109 They are among the few settlements to have received soholarly attention. Guy LavallBe, The Metis of St. ~aurent, ani it obi TheirLife andStories, 1920-88. Winnipeg: Published by ~"thor,2003,s. ~embeiof

159 - Ray, Arthur: Mitts Economic Communilies andSetllemenfs in the 1flhCentury -67-

~-~ f-1 The Parkland-Grassland Bison Hunters: The Red River Metis The Red-River Mktis have been the most intensely studied group to date and the general

features of their Nineteenth Century economy are well known. MBtis families had begun

to gather near the Assiniboine-Red River forks well before the creation of the Selkirk

Colony. This was because this location became aplace where the male heads of families

retired from the fur trade. They continued to do so throughout the period before 1870.

Settlement was especially rapid there (and elsewhere) in the 1820s following the merger

of the HBC and NWC in 1821. This event enabled the HBC, under the direction of

Governor George Simpson (later Sir George), to eliminate redundant posts and

substantially reduce its manpower requirements.110Governor Simpson, acting on

instructions from London, encouraged the displaced MBtis to settle near the Selkirk

Colony. Many did so, albeit others remained near the posts that had formerly employed

them. Two such settlements were located at Cumberland Lake and Green ~ake.'"

another pioneering St. Laurent family, the Ducharmes, also took debt at Manitoba House in the late 1880s and earlv 1890s. s~ . 'lo ~ay,'l974,205. "I See, Kew and Thomton, 17-18. See also Minutes of Council, Northern Department.

160 Ray, Arthur Milis Economic Communitiec and Settlements in the 19'R Century

TABLE 6: MANITOBA HOUSE ACCOUNTS, 1891

161 - Ray, Arthur. Mdtis Economic Communilies andSettlements in the I$& Centtrry -69-

162 Ray, Arthuc: M6fi.s Economic Communities andSefflementsin the IP'D Century -70-

163 - Ray, Arthur: Milk Economic Communities andSe~lementsin the I$ Century -71 -

164 - Ray, Arthur: Miiis Economic Communilies andSeiflemenlsin the lghCenlury

It is generally recognized that the amalgamation of the two companies posed only a

minor setback for the MBtis, which was mostly in terms of a short-term decline in

employment opportunities in the fur trade. By the 1830s, the labour demands of the

company began to increase again, especially for brigade work. In his exhaustive analysis

of HBC labour system (emphasizing the Northern Department) for the period 1821-1900,

Parks Canada historian Philip Goldring noted that MBtis recruits filled an ever growing

share of the company's labour requirements. For instance, in 1830 they accounted for

almost 26 percent of the new recruits, by 1850 nearly 43 percent, and by 1860, just over

60 percent. Meanwhile, recruitment of French Canadians from Canada declined from

approximately 43 percent of the new hires to slightly more than 10 percent in 1860.'12

Furthermore, the composition of the Canadian recruits was changing. By the 1860s they

were mostly of Iroquoian/French Canadian descent.'I3 During this period, men hired in

Scotland (including the Orkney Islands) accounted for 25 to 40 percent of the new

workers. In other words, during the Nineteenth Century the company's workforce

expanded and came to be predominately M6tis.

'I2 Goldring, Report 362, pp. 62-65. 'I3 Judd, 1980, p.135.

165 - Ray, Atthur. Milis Economic Communifiesond Serrlemenrs in the 19~Cenfuty -73- Even before the rebound in the labour market, those Metis who settled along the

lower Assiniboine River hdRed River (mostly south and west of the forks) and

elsewhere exploited new opportunities after 1821. Most famously and importantly, they

rapidly became important competitors with the Plains First Nations as suppliers of plains

provision for the markets generated by the fur trade and the Selkirk ~ettlement."~They

also took advantage of the expanding American buffalo robe market after the 1850s and

the hide market in the 1860s until the herds collapsed in .the 1870s. Reflecting these

developments, the large organized Red River MBtis buffalo hunts emerged during the

1820s - one taking place during the mid to late-summer period for dried provisions and

hides and the other in late autumn and early winter for robes and fresh meat. The hunts

took place to the southwest of the settlement at increasing distances as the herds retreated

(Figure 14). In the late 1830s, MBtis from the parish of St. Francois Xavier (west of the

forks) began making annual hunts to the Lauder Sandhills region. The hunts grew in size

as other MBtis joined them. The herds quickly declined in the Lauder area as a result. In

response, the hunters pushed west into the Souris River basin as far as Moose

~ountain."' Apparently the last bison were killed in the Lauder area about 1865.

Significantly, as MBtis became more involved in the robe and hide trades, they began to

establish winter encampments in sheltered areas of the grasslands as had been the

traditional practice of Plains First Nations. Those of the St. Francois Xavier M6tis were

situated in the Pembina Hills, Turtle Mountain, Moose Mountain, the Souris and

Qu'Appelle Valleys, Wood Mountain and beyond as far west as the Cypress ~i1ls.l'~

This development recalled the earlier pattern when the Great Lakes M6tis first wintered

'I4 Kay, 1974,205-6. In 1820 the MBtis dispatched 540 Red River carts. By 1840 the number had risen to 1210. This represented an inorease in capacity for canying meat from 486,000 lbs to 1,089,000 lbs. Scott Hamilton and B.A. Nicholson, 'MBtis Land use of the Luader Sandhills of Southwestern Manitoba,' Prairie Forum 25 (2) 2000: 247-50 (authors quoting Ens, 1996,79). Ens, 1996: 79.

166 - Ray, Arthur: Mklis Economlc Communilies and Seltlements in the 1p Cenlury -74- in the Red River valley before relocating there permanently. The Pembina Hills (St. r-\ Joseph) and Turtle Mountain areas became some of the earliest wintering sites for these Mbtis from the Red River settlement and that of St. Laurent. Apparently a few M6tis had

joined Ojibwa newcomers in the Turtle Mountains as early as ca. 1820."" The

establishment of trading posts by Norman Kittison in the region on the American side of

the border offered additional incentives for MBtis to winter or settle permanently in the

region in the 1840s."' The further southwestern retreat of the herds led increasing

numbers of Red River M6tis to join these wintering stations. Regarding this process in

the 1850s and 1860s, Ens observed: "Large numbers of the Red River MBtis and the

Pembina M6tis now centered their economic life in these wintering villages, which

provided an excellent base from which to organize summer buffalo hunts, practice small-

scale agriculture, and receive religious and educational services from Roman Catholic

priests, and provided a residence near enough to the buffalo herds to get the prime winter

buffalo robes, which were bringing high prices by the 1850s.""~The rapid contraction of

the bison range led to further relocations into Saskatchewan, particularly to lower South

Saskatchewan River near the forks (Batoche, St. Laurent de Grandin, St. Louis, and Duck

Lake), and to theNorth Saskatchewan to Battleford, St. Albert and Lac Ste. Anne.

Others settled in Montana.

As noted previously, during the autumn, winter, and spring some Red River M6tis

also ventured to the woodland areas of Lakes Manitoba and Winnipeg and to the

Interlake country to fish, hunt (game and waterfowl) and trap. They pursued parallel

Gregory Scott Camp, "The Turtle Mountain Plains-Chippewas and Metis, 1797-1935," (Ph.D. diss., University of New Mexico, May 1987), 41 and Gerhard Ens, "After the Buffalo: The Reformation of the Turtle Mountain M6tis Community, 1879-1905," in Jo-Anne Fiske, Susan Sleeper-Smith, and William Wicken. eds.. New Faces ofthe Fur Tmde: Selecled Pnoers ofthe Seventh North American Fur Pade ~onferehce,~alifax, ~ova~~cotia, 1995 (East ~ansing:~ich&anState University, 1998), 140. 'la Camv.1995: 60-70.

167 - Ray, Arthur: Mkris Economic Cornmunitis and Settlements in the 19" Century -75- seasonal rounds (woodlandlparklandl&rassland) in the Turtle Mountains and at the - parkland-grassland settlements of Saskatchewan. r 1 During the summer many Red River MBtis men were engaged in a variety of

activities (in addition to bison hunting) that took them away from the settlement for - extended periods. As noted already, working on the HBC's York boat brigades, which

-. were the backbone of its transportation system between Edmonton, the Red River

Settlement and York Factory was a very important activity. In addition, beginning in the

1840s increasing numbers of M6tis became involved as contract freighters on the Red

River cart brigades that hauled freight to HBC posts in the parklands and grasslands.

These cart trains also connected the settlement to American market centers on the upper

Mississippi and Missouri rivers. Meanwhile, during the summer and autumn, other MBtis,

especially the women and children worked the small family fmsthat extended back

from the Assiniboine and Red rivers in long narrow lots and/or worked as seasonal

labourers on other settlers' farms.

Also present in the Red River Mbtis settlement was an economically important

and influential group of merchanvtraders. Some of them operated, at least nominally,

under license from the HBC. Increasing numbers competed with the company. Their

opposition led to the famous Red River Sayer trial of 1849, when the company attempted

to enforce its monopoly. It failed. Of importance here, the MBtis merchanthadem

operated through the settlement and the adjacent grasslands, parklands and woodlands at

most seasons of the year. Their range extended to Green Lake, Saskatchewan and

beyond.lZ0

168 - Ray, ArUlur: Mdfis Economic Communilies sndSefflemenLs in flre JPCefllury -76- It is clear from the above that the Red River Mbtis settlement had developed a - Si highly diversified economy by mid-century that was spatially very extensive taking in the

-. grasslands, parklands and woodlands of eastern, southern and central Manitoba, including

portions of the northern United States, Saskatchewan and Alberta. It is also clear that the - outer limits of the economy overlapped with that of other settlements, especially that of

St. Laurent-Oak Point. Regarding the latter settlement, research has shown that when

crops or the buffalo hunts failed in the Red River colony the tatter M6tis resorted to this

Lake Manitoba settlement and to the Manitoba Lakes more generally. In other words, the

lake fisheries and hunting lands of central Manitoba provided a refuge in times of

ecological/economic emergencies. After 1870-85, many families took up residence here

where they continued to pursue an economically diversified way of life.

169 -. Ray, Arthur: Mdtis Economic Communities and Settlements in the 19'~ Century - 77 -

CONCLUSION

It is clear from the above discussion that a distinctive spatial patterning of economic

activity was associated with each Nineteenth Century MBtis settlement (Figure 16). Zone

A included those activities that took place within the built-up and cleared area of the

settlement. Primarily these included farming (where practiced), clothes- and equipment-

manufacture, house and trading post construction and maintenance, canoe- and boat-

building and repair,I2' store-based trading and limited fishing, trapping, and sugar-

making.

It must be stressed that none of the settlements were sustainedsolely by activities

that tookplace within Zone A. Therefore, they depended heavily on a variety of

economic activities that took place beyond the fringes of the settlement to a distance that

could be traveled in a few days (Zone B). In this fairly intensively utilized area, which

was frequented during most seasons of the year, economic activities included (depending

on the area): wild rice gathering, gathering roots and berries, maple sugar-making, birch-

bark collecting, fishing, hunting and trapping, and forestry activities (cutting fire wood

and securing construction timber). Around most settlements, this zone expanded over

time as settlements grew and depleted local fur and game resources, taxed fisheries, and

exhausted timber resources.122

'"AS noted, commonly the trading posts that anchored most M6tis settlements were located at a good fishery andlor at junctions on transportation networks. '22~oron extreme example of the latter problem as it developed at York Factory see, Arthur J. Ray, "York Factory: The Crises of Transition, 1870-1880," The Beaver, 1982,312: 26-31.

170 - Ray, Arthur: Mdtis Economic Communilier andSelllemenh in the 1YhCentury -78-

'T: FIGURE 16: Spatial Model of Metis Settlements

Near Settlement : Collecting, fishing, hunting, trapping, trading, cutting & hauling wood [for fires and construction]

171 - Ray, Arthur: Mdti8Economic Communities anJSe~tlementsin the 2YhCentu~y -79-

Much farther from each settlement was a more distant and extensive territory -- (Zone C) that required extended travel for settlement members to reach it. Usually

members of a given MBtis settlement ventured to this zone at a particular season of the

year primarily to obtain uncommon resources (such as salt), to hunt highly valued game

(most notably bison in Western Canada), for employment (most commonly brigade work

and, in the prairie region, as carters), and/or for trading purposes. Also, Zone C often

contained sites that residents of particular settlements resorted to when one of their staple

resources failed. In other words, these outer zones served as economic safety valves for

low points in fish and game cycles or when crop failures occurred. For example, when

fisheries failed at Sault Ste Marie, the Mttis often resorted to Michipicoten, where they

had relatives. When agriculture or the hunts failed at Red River, some MBtis temporarily

relocated to St. Laurent and other locations on Lake Manitoba and Lake Wimipeg to fish

and/or hunt in the Interlake area. Other Red River MBtis temporarily relocated to their

wintering camps in southwestern Manitoba, Saskatchewan, Alberta and the northern

states. Of great importance for the formation and expansion of the MBtis nation,

commercial and subsistence harvesting activities that took place in Zone C (and transport

work) brought members from different settlements together, thereby facilitating the

exchange of ideas and information, the creation of extended and interconnected kinship

and trading networks, and the development and sharing of cultural practices (regional

expressions of MBtisness). Also, when resources failed for prolonged periods, Mttis

residents of the affected settlements often transferred their principal residences to these

peripheral sites. In this way, Mttis economic life facilitated migration when it was

172 -- Ray, Arthur: MJtis Economic Communifies andSettlemenls in the 1$ Century - 80-

necessary. Crucial in all of this was mobility. Movement was a central feature of MBfis

-,-\. : 1 culture.

... Because of time constraints, this report should be considered as being only a

preliminary study of the economic life of MBtis settlements and communities. This work .- needs to be married with genealogical data that illustrates the kinship networks that

linked MBtis settlements together at regional and national levels. Also, more sample

communities need to be studied to obtain a fuller picture of the regional variants of the

MBtis nation during the Nineteenth Century. In present-day northern Ontario and the

Prairie Province regions, particularly important would be information about

Michipicoten, old Fort William, and Rainy Lake-Ft. Francis for the Great Lakes-

Boundary Waters area, and Manitoba House, Cumberland House, and Green Lake for the

southern boreal forest area, and a sampling of Saskatchewan and Alberta parkland

settlements. Beyond this area we need to know more about Mbtis communities in

northeastern British Columbia and the vast Northern Boreal Forest. It also would be very

important to look at the economic life of MBtis settlements and communities in the 2oth

century. The very limited literature that is available, particularly the work of Kew,

Thornton, and Guy Lavallee, all suggest that the basic pattern of economic diversity,

mobility, and the continued importance of earning a livelihood partly off of the land

persisted, albeit the particular mix of income sources changed over time. In other words,

there does seem to be a modem variant of the traditional MBtis economy.

173 .- Ray, Arthur: Mklfs Economic Communities andSeltlemenfs in the 191h Cenhrry -81-

Sources Cited 'I- 1 Anderson, J. W. AFur Trader's Story. Toronto: Ryerson Press, 1961. - Anderson, T. G. and Alexander Vidal. "Report to His Excellency, the Governor-General in Council, Toronto, 5 December 1849." Archives of Ontario [OAC] F 1027-1-2 - Robinson Treaties.

Barth, Frederik. "Introduction." Ethnic Groups and Boundaries: The Social Organization of Culture Diffence. Ed. Frederik Barth. Boston: Little, Brown and Company, 1969.

Bishop, Charles A. The Northern Ojibwa and the Fur Trade. Toronto: Holt, Rinehart and Winston of Canada, 1974.

Blain, Eleanor M. "Dependency: Charles Bishop and the Northern Ojibwa." Aboriginal Resource Use in Canada: Historical and Legal Aspects. Eds. Keny Abel and Jean Friesen. Winnipeg: Manitoba Press, 1991. 93-105.

Brown, Jennifer S. H. "The Mktis: Genesis and Rebirth." Native People, Native Lands: Canadian Indians, Inuit, and Metis. Ed. B.A. Cox. Ottawa: Carleton University Press, 1987. 136-147.

-, 1985. "Diverging Identities: The Presbyterian Mktis of St. Gabriel Street, Montrbal," The New Peoples: Being and Becoming Metis in North America. Eds. Jacqueline Peterson and Jennifer Brown. Winnipeg: University of Manitoba Press, 1985.195-206.

. "Metis." The Canadian Encyclopedia. Edmonton: Hartig Publisher. 1985.1124- 1127.

. "Linguistic Solitudes and Changing Social Categories." Old Trails andNew Directions: Papers of the Third North American Fur Trade Conference. Eds. Carol M. Judd and Arthur J. Ray. Toronto: University of Toronto Press, 1980. 147-159.

Boisevert, David and Keith Turnbull. "Who Are the Mbtis?" Readings in Aboriginal Siudies: Identities and State Structures, vol. 2. Ed. Joe Sawchuk. Brandon: Bearpaw Publishing, University of Manitoba Native Studies, 1991. 108-141.

Bourdieu, Pierre. The Logic ofpractice. Stanford: Stanford University Press, 1990.

Burley, David.V, Horsfall, Gayel A. and Brandon, John D. Structural Considerations of Metis Ethnicity: An Archaeological, Architectural, and Historical Study. Vermillion: University of South Dakota Press, 1991. 3-40.

Camp, Gregory Scott. "The Turtle Mountain Plains-Chippewa and Metis, 1797-1935."

174 Ray, Arthur: Mdlis Economic Communilies andSelllemenls in the I$ Century -82-

Ph.D. diss., University of New Mexico, 1987. rt\' Comaroff, John and Jean. Ethnology and the Historical Imagination. Boulder: Westview Press. 1992.

Creighton, Donald. 'The 1860s." The Canadians, 1867-1967. Eds. J.M.S. Careless and R. Craig Brown. Toronto: Macmillan of Canada, 1967. 3-36.

. The Empire of the St. Lawrence. Toronto: Macmillan of Canada, 1956.

Dalton, George. "Economic Theory and Primitive Society." American Anthropologist 63 (1961): 1-25.

Dickason Olive P., "From 'One Nation' in the Northeast to 'New Nation' in the Northwest: A Look at the Emergence of the Mktis." American Indian Culture and Research Journal 62 (1982): 1-21.

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Driver, John. "John Driver to E. B. Borron, 5 June 1893." Sir Aemilius Irving Papers, Ontario Archives, Robinson Superior Treaties, 1850. F1027-1-2,27132110.

Ens, Gerhard. "Metis Ethnicity, Personal Identity and the Development of Capitalism in the Western Interior." From Rupert's Land to Canada. Eds. Ted Binnema, Gerard Ens, and R.C. Macleod. Edmonton: University of Alberta Press, 2001. 161-177.

. Homeland to Hinterland: The Changing World of the Red River Metis in the Nineteenth Century. Toronto: University of Toronto Press, 1996.

. "After the Buffalo: The Reformation of the Turtle Mountain Mktis Community, 1879-1905." In New Faces of the Fur Trade: Selected Papers of the Seventh North American Fur Trade Conference, Halifax, Nova Scotia, 1995. Eds., Jo-Anne Fiske, Susan Sleeper-Smith, and William Wicken. East Lansing: Michigan State University Press, 1998. 139-1 51.

Fleming, R. Harvey. Minutes of Council, Northern department of Rupert Land, 1821-31. Toronto, The Champlain Society for the Hudson's Bay Record Society, 1940.

Foster, J.E. 1985. "Some questions and perspectives on the problem of Metis roots," The New Peoples: Being and Becoming Metis in North America. Eds. Jacqueline Peterson and Jennifer Brown. Winnipeg: University of Manitoba Press, 1985.73-91.

Giraud, Marcel. Le Metis Canadien, son rple dans l'histoire desprovinces de 1'Ouest. Paris Institut d'ethnologie, 1945.

175 - Ray, Arlhur: MknsEconomic Communities andSe/tIemen& in the 19~Century - 83 -

TI Giraud, Marcel. The Mgtis in the Canadian West 2 Vols. Trans. G. Woodcock, Edmonton: University of Alberta Press, 1986 [1945]. - Goldring, P. "Papers on the Labour System of the HBC, 1821-1900." 2 Vols. Parks Canada, Manuscript Report 362,1979 and Manuscript 412,1980, - Hamilton, Scott and Nicholson, B.A.. "Metis Land Use of the Lauder Sandhills of southwestern Manitoba." Prairie Forum 2 (Fall 2000): 243-270.

Harris, R. Cole. Historical Atlas of Canada, Vol. 1. Toronto: University of Toronto Press, 1987. Plate 65. - Hartz, Louis, ed. The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada, and Australia. Toronto: Longmans, 1964.

Henry, Alexander. A New Light on the Early History of the Greater Northwest: The Manuscript of Journals of Alexander Henry and of David Thompson. Ed. Elliott Coues. Minneapolis: Ross and Haines, 1965.

Hickerson, Harold, ed. "Journal of Charles Jean Baptiste Chaboillez, 1797-1798." Ethnohistory 6 (1959): 265-316 & 363-427.

Howard, Joseph Kinsey. Strange Empire: Louis Riel A Narrative of the Northwest. New York: Morrow, 1952.

Kew, J. E. Michael. Cumberland House. Saskatoon: University of Saskatchewan, Centre for Community Studies. 1962.

Kuper, Adam. The Invention of Primitive Society: Transformations of an Illusion. London and New York: Routledge, 1988.

Lavallee, Guy. The Metis of St. Laurent, Manitoba: Their Life and Stories, 1920-1988. Winnipeg: G. LavallBe. 2003.

Mailhot, P.R. and Sprague, D.N. "Persistent Settlers: The Dispersal and Resettlement of the Red River Metis, 1870-1885," Canadian Ethnic Studies 17.2 (1985): 1-30.

Merriam-Webster Dictionary. Merriam-Webster's collegiate dictionary. Springfield, Mass: Memam-Webster, c1998.

Morton, W. L. Manitoba: A History. Toronto: University of Toronto Press, 1957.

Nicks, Trudy. "Iroquois and the Fur Trade in Western Canada." Carol M. Judd and

176 Ray, Arthur: Mdt& Economic Communities andSet~Iemenfsin the 1ghCentury - 84-

Arthur J. Ray, eds., Old Trails and New Directions: Papers of the Third North American Fur Trade Conference. Toronto: University of Toronto Press. 1980. 85- 101.

Peterson, Jacqueline. "Prelude to Red River: A Social Portrait of the Great Lakes Metis." Ethnohistoiy 25 (Winter 1987): 41-67.

. "Many Roads to Red River: Metis Genesis in the Great Lakes Region." The New Peoples: Being and Becoming Metis in North America. Eds. Jacqueline Peterson and Jennifer Brown. Winnipeg: University of Manitoba Press, 1985.37-71.

. "Ethnogenesis: The Settlement and Growth of a 'New People' in the Great Lakes Region, 1702-1815." American Indian Culture and Research Journal 6.2 (1982): 23-64.

Polanyi, Karl. The Great Transformation: The Political and Economic Origins of Our Time. New York: Farcar & Rinehart, 1944.

Primitive, Archaic and Modem Economies: Essays ofKarl Polanyi. Ed. George Dalton. Garden City, New York: Anchor Books, 1968.

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Provincial Archives of Manitoba, Hudson's Bay Company Archives:

Archives Library, summary history of Sault Ste. Marie.

Fort St. Mary's Post Journal, 1824-25. B 149ldl.

Fort William District Report. B 231lell-4.

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Manitoba District Reports for 1889 and 1891. B 153/e/3,8 andB 153/e/5,6.

Michipicoten District Report. B 129/e/5, 1.

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177 Ray, Arthur: MdHs Economic Communities andSefrlemenls in the lghCentury - 85 -

.- Toronto Press, 1990. '--''I i . "Reflections on Fur Trade Social History in Canada." American Indian - Culture and Research Journal 6.2 (1982): 91-107.

. "York Factory: The Crises of Transition, 1870-1880." The Beaver 312 ~- (1982): 26-31. . Indians in the Fur Trade: Their Role as Hunters, Trappers and .. Middlemen in the Lands Southwest ofHudson Bay, 1660-1870. Toronto: University of Toronto Press, 1974.

. "Final Historical Report on the Metis Economy, Sault Ste. Marie for R. v. Powley." Unpublished.

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178 - Ray, Mm:Mdlls Economic CommunitiesandSelllemenls in the 19'' Century -86- r1 Spry, Irene M. "The Metis and Mixed-bloods of Rupert's Land before 1870." The New Peoples: Being and Becoming Metis in North America. Eds. Jacqueline Peterson and - Jennifer Brown. Winnipeg: University of Manitoba Press, 1985.95-1 18.

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179

The Métis of Southern Manitoba in the Nineteenth Century:

A Historical Report

Prepared for the Manitoba Métis Federation by Gwynneth C. D. Jones Vancouver, British Columbia.

1 September 2005.

180 Table of Contents

Introduction i

I. The Study Area prior to 1810 3

II. The Establishment of the Selkirk Settlement and First Expressions of 16 Métis Nationalism, 1811 - 1818

III. The Arrival of Priests and the Establishment of St. François Xavier 27 Parish, 1818 - 1824

IV. Hunting and Agriculture on the Red and the Assiniboine, 1820s - 1860s 34

V. The Sayer Trial to the Red River Resistance: Expanding Trade and 48 Expressions of Métis Sovereignty, 1845 - 1870

VI. After 1870: Surveys, Settlement and Métis Persistence 56

181

Introduction

I have been asked by the Manitoba Métis Federation to undertake historical research and produce a historical report, set of supporting documents, and bibliography on the ASouthern Manitoba Métis Community@. The terms of reference for this research included: a) a Ageneral focus@ on Athose members of the historic Manitoba Métis Community who lived, used and/or occupied Southern Manitoba@ b) a Aparticular focus@ on Ahistoric settlements including but not limited to, St. Norbert, St. Francis Xavier, Turtle Mountain and possibly Pembina@ c) the Apolitical, cultural, social and economic history of the Manitoba Métis Community, including its ethnogenesis, early influences and persistence@ d) Ahistoric Métis patterns of use and occupation including resource harvesting@

The report was to be Abased on historical records and will cover only up to the early part of the 20th Century@.

The population of mixed Aboriginal/non-Aboriginal ancestry in what is now southern Manitoba (which I have defined generally as lying south of Lakes Manitoba and Winnipeg, and especially that portion of the population with a relationship to the Forks of the Red and the Assiniboine Rivers at present-day Winnipeg and environs) has generated a substantial historical literature, with a variety of lively historiographical debates. It was not my intention to reproduce this literature or address each of these debates, but rather to present a summary report with a substantial body of supporting documents, introducing the reader to each of the topics in the Terms of Reference.

The essential historical events of this period, such as the establishment of the Selkirk Settlement and the Resistance of 1870, have been thoroughly described by many historians, although interpretations and analyses vary widely. I have not attempted to redraw these events entirely from primary sources, although I have introduced documents of particular interest and relevance. However, many earlier historians, such as Marcel Giraud and W. L. Morton, interpreted these documents and events in the context of broader assumptions regarding race Apersonality@ and Aprogressive@ and Abackward@ behaviour, and in quoting from the research of these authors I am not accepting these assumptions. My purpose in writing and researching this report was not to assess or judge people or activities, but simply to describe them based on historical sources. These historical sources are often laden with assessments or judgements of their own, but still offer insights into behaviour and events.

Although many people of mixed ancestry in the vicinity of Red River had some education, most of the historical sources we can locate today were written by people of sole European descent. They wrote their descriptions as outsiders and with their own perspectives and purposes in mind. For example, Hudson=s Bay Company employees might gauge mixed-ancestry people by their

182 2 loyalty to Company interests, their skill in hunting or their willingness to follow the directions of their superiors. Missionaries assessed their parishioners in terms of their adherence to the teachings and practices of the church, which in the nineteenth century included a willingness to adopt a sedentary, regular agricultural life. Although we get occasional glimpses of mixed- ancestry peoples= formulations of themselves and their lives, much of what we read in the documents is mediated through observers who did not hesitate to measure and describe according to their own standards and assumptions. Much of the everyday life, assumptions and perspectives of the mixed-ancestry people themselves is missing from the documents.

The generalizations above, and the generalizations of many of the historical documents, may obscure the variety in the ARed River Métis@ and their lives. Mixed-ancestry people at Red River could be descended from French-Canadian, English-Canadian, or English or Gaelic-speaking Britons on the European side, and from many Indian nations on the Aboriginal side. Some farmed more than others, some owned capital such as carts, animals and boats while others did not, some were traders, some were employees of the fur companies, some were boatmen for the supply brigades; and they attended Catholic or Protestant Christian churches. The extent to which these people made up a coherent group has been much discussed in the historical literature. Perhaps not surprisingly, the general conclusion has been that the sectors of the population aligned and separated differently on different issues. In this report, I have tried to describe aspects of mixed-ancestry life, including the generalizations observers made about the group and expressions of collective identity. These descriptions and expressions may not have applied to every mixed-ancestry person, but I believe they do describe an aggregate of the population at any given time and are therefore valuable in analyzing collective practices and views.

Terminology in studies of this type is always an important issue. As much as possible, I have tried to quote from the historical documents so that the reader can identify what terminology was used by each writer. After 1816, the words AMétis@ (with or without an accent) and Ahalf-breed@ come into common use to describe mixed-ancestry individuals and groups of people in Southern Manitoba. Although the term AMétis@ has been associated with mixed-ancestry people of French and Aboriginal origin, it was also applied in the historical documents to describe people of British and Aboriginal origin; the word Ahalf-breed@ was also often used by English-speakers to refer to people of French and Aboriginal origin. As the word Ahalf-breed@ is now considered by some to have a derogatory connotation, I have used the word AMétis@ in the latter part of the paper to identify people of mixed European and Aboriginal ancestry.

183 3

I. The Study Area prior to 1810

On May 2, 1670, a Royal Charter was granted to Athe Governor and Company of Adventurers of English tradeing into Hudson Bay@, including as a principal investor King Charles II=s cousin, Prince Rupert. This company, to be known as the Hudson=s Bay Company, received under the Charter Athe sole Trade and Commerce of all those Seas Streightes Bayes Rivers Lakes Creekes and Soundes...that lie within the entrance of the Streightes commonly called Hudsons Streightes together with all the Landes and Territoryes upon the Countryes Coaste and confynes of the Seas Bayes Lakes Rivers Creekes and Soundes aforesaid...the said land bee from henceforth reckoned and reputed as one of our Plantacions or Colonyes in Amerca called Ruperts Land@. The AGovernor and Company@, under the Charter, were declared Athe true and absolute Lordes and proprietors of the same Territory...saving always the faith Allegiance and Soveraigne Dominion due to us [the Crown]@.1

The vast majority of this country was unexplored by Europeans at this time. After establishing several posts on James Bay, the Hudson=s Bay Company established a trading fort on Hudson=s Bay at the mouth of the Nelson River, called York Factory, in 1684, near the site of a French fort that had operated from 1682 - 1684. Indian peoples came from great distances to deliver furs and trade at this fort.2 The first European documented to have visited the confluence of the Red and Assiniboine Rivers was the French-Canadian explorer and fur trader Pierre de la Vérendrye, who reached Ala fourche des assiliboiles@ on September 24, 1738.3 Although la Vérendrye had hoped

1 Text of Royal Charter at http://www.solon.org/Constitutions/Canada/English/PreConfederation/hbc_charter_1670.html.

2 Historical Atlas of Canada: Vol. I: From the Beginning to 1800, R. Cole Harris, ed. (Toronto: University of Toronto Press, 1987), plate 38 (Doc. #371).

3 Pierre G. de V. de la Vérendrye, AJournal in the form of a letter covering the period from the 20th of July 1738, when I left Michilimackinac, to May 1739, sent to the Marquis de Beauharnois@, as reprinted in Journals and Letters of Pierre Gaultier de Varennes de la Vérendrye and his Sons, Lawrence J. Burpee, ed., (Toronto: The Champlain Society, 1927), 298 (Doc. #6).

184 4 for French royal sponsorship of his expedition as a voyage for Athe discovery of the Western Sea@, no money had been granted to him, and therefore he took the opportunity to establish trading posts as he travelled. His men had established Fort Maurepas, on Lake Winnipeg at the mouth of the Red River, in May of 1734, and this station together with Fort St. Charles on Lake of the Woods provided his starting points for further ventures south and west.4

When la Vérendrye arrived at Ala fourche@, he found Adix cabanes de Crix@ waiting for him with meat to trade.5 These Cree people normally travelled to trade with the Hudson=s Bay Company at York Factory,6 but French traders like la Vérendrye hoped to compete with the HBC by venturing into the interior of the continent (which the HBC did not do) to meet with Indian people where they hunted. la Vérendrye set out westward from the forks on foot, finding the Assiniboine River too low for easy canoe travel, and found Afine trees along the banks, and behind these a boundless stretch of prairie in which are multitudes of buffalo and [email protected] He later wrote, I did not walk far before meeting some Assiniboin who, having been notified that I was coming up the river, came to meet me. I pursued my way, however, deferring to speak to them till I should be on their land. The band increased in numbers day

4 Marquis de Beauharnois to Comte de Maurepas, [1734], as reprinted in Journals and Letters, Burpee, ed., 125 - 128 (Doc. #1); and AReport in Journal form of all that took place at fort St. Charles from May 27, 1733, to July 12 of the following year, 1734, to be transmitted to the Marquis de Beauharnois, Governor-General of New France, by his very humble servant Laveranderie, who has been honoured with his order for the establishment of several Posts to prepare the way for the discovery of the Western Sea@, as reprinted in Journals and Letters, Burpee, ed., 188 - 192; la Vérendrye, AJournal in the form of a letter@, 193 - 194 (Doc. #6).

5 In the spring of 1737, the Assiniboine had described the forks of the Assiniboine and the Red to la Vérendrye as Atheir own proper territory@, and came from two villages there to meet him. La Vérendrye, AReport of the Sieur de la Vérendrye, Lieutenant of the troops and Commandant of the posts of the West, Presented to Monsieur the Marquis de Beauharnois Governor-General of New France, to be sent to the Court@, 2 June 1736, as reprinted in Journals and Letters, Burpee, ed., 244, 250 (Doc. #4).

6 la Vérendrye, AJournal in the form of a letter@, as reprinted in Journals and Letters, Burpee, ed., 299 (Doc. #6).

7 la Vérendrye, AJournal in the form of a letter@, as reprinted in Journals and Letters, Burpee, ed., 303 (translation) (Doc. #6).

185 5

by day. I marched steadily for six days.

On the evening of October 2 the savages notified me that I could not go any higher up the river on account of the lowness of the water...and that if it was a question of being well situated for reaching everybody, there was no better place than the portage which leads to Lake of the Prairies [Lakes Manitoba and Winnipegosis], for that is the road by which the Assiniboin go to the English [York Factory]...8 la Vérendrye then commenced to build Fort la Reine on the north bank of the Assiniboine, on or near present-day Portage la Prairie. As this fort was completed, in mid-October 1738, la Vérendrye approved the construction of another fort, to be named Fort Rouge, at the forks of the Red and the Assiniboine.9 The area south of Lake Winnipeg and west of Lake of the Woods, to present-day North Dakota, was a zone of frequent conflict between the Sioux, the Cree, the Ojibwa or Saulteaux, and the Assiniboine. These conflicts, remarked on by la Vérendrye in 1734, 10 were to continue until the 1860s. All of these peoples travelled in this area to exploit the abundant game resources that la Vérendrye observed, and to trade.11

A map of 1750 based on information from la Vérendrye identified Fort la Reine, Fort Maurepas and Fort St. Charles, but the site of Fort Rouge was marked AAncien [email protected]

8 la Vérendrye, AJournal in the form of a letter@, as reprinted in Journals and Letters, Burpee, ed., 303 - 304 (translation) (Doc. #6).

9 la Vérendrye, AJournal in the form of a letter@, as reprinted in Journals and Letters, Burpee, ed., 308 (Doc. #6).

10 Beauharnois to Maurepas, as reprinted in Journals and Letters, 117 (Doc. #1).

11 See also eighteenth-century maps on which Europeans attempted to locate these four peoples and their neighbours, as reprinted in Journals and Letters, Burpee, ed. (Docs. #2, 3, 5, 6, 7, 8), and Jonathan Carver, Carver=s Travels through North America, in the Years 1766, 1767, and 1768, (London: J. Walter and S. Crowder, 1778, reprinted by Coles Publishing Co., Toronto, 1974) (Doc. #9); also James A. M. Ritchie, Turtle Mountain Tales: The Council Stones (Boissevain, Manitoba; Moncur Gallery: Peoples of the Plains and Boissevain Community Archives, 2001) (Doc. #381), 2-7.

12 ACarte des nouvelles découvertes dans l=Ouest du Canada dressée sur les mémoires de Mr. de la Vérendrie et donnée au Dépôt de la marine par Mr. de la Galissonière@, as reprinted in Journals and Letters, Burpee, ed. (Doc. #8).

186 6

By 1750, French posts at Fort Dauphin (near present-day Dauphin, Manitoba), Fort Bourbon on Cedar Lake, and Fort Paskoyac, near present-day The Pas, had also been established.13 These posts were opened, closed, and moved intermittently, with shifts in commercial activity, colonial policy, and the effects of the Seven Years= War. Little or no documentation from these forts, from approximately 1750 to the 1790s, has survived. In 1768, there were four posts near the confluence of the Red and the Assiniboine Rivers.14 Forts were established in the 1790s in the vicinity of present-day Brandon, Pembina, and near Turtle Mountain.15 Each of these forts was staffed by approximately four to twenty-five men, according to early journals such as la Vérendrye=s, the HBC=s at Brandon House, and Alexander Henry the Younger=s at Pembina. The precise date at which these men began to form lasting relationships with Aboriginal women is not known, but by the last decade of the eighteenth century these relationships were commonplace in Southern Manitoba. Although there were no clergy in the area to solemnize marriages, the surviving journals from this period refer to the Awives@ and children of the men. These wives would all have been of Aboriginal ancestry, as the first non-Aboriginal woman arrived in the area in 1806. As well as providing companionship and family life for men who spent much of their active lives in the North West, women were indispensable to European fur traders for developing and managing alliances with Indian trading groups, preparing food, clothing and equipment, and gathering country provisions such as berries, rabbits, and fish.16 The North West Company, the Hudson=s Bay Company=s main competitor from the 1780s to 1821, was particularly encouraging of these liaisons, to build its ties with the Indian population, assist in retaining staff with extensive

13 W. L. Morton, Manitoba: A History (Toronto: University of Toronto Press, 1957), 33 - 34 (Doc. #362).

14 Morton, Manitoba, 38 (Doc. #362).

15 Historical Atlas of Canada: Vol. I, R. Cole Harris, ed., plate 62 (Doc. #373).

16 The two works that best describe the many facets of these relationships are by Sylvia Van Kirk, Many Tender Ties: Women in Fur-Trade Society, 1670 - 1870 (Winnipeg: Watson & Dwyer Publishing, 1980, reprinted in 1999); and Jennifer S. H. Brown, Strangers in Blood: Fur Trade Company Families in Indian Country (Vancouver: University of British Columbia Press, 1980).

187 7 local knowledge, acquire the labour of wives and children, and increase its employees= expenditures on clothing and household items.17

Perhaps in part because of these local family ties, some of the employees of independent traders and the North West Company chose to stay in fur-trading country after the expiration of their work contracts. (The Hudson=s Bay Company was generally firm in its policy of removing men from fur-trade zones after their employment time was up, to discourage rival trading.) By the 1790s and early 1800s, these men outside formal fur-trade employment, called Afreemen@ by the traders, were evident in Southern Manitoba.

In August 1796, the day after reaching Athe Fork@ of the Red and the Assiniboine (where there was Aonly one Indian and his family@), the Hudson=s Bay Company canoe brigade from York Factory travelling along the Assiniboine to Brandon House Awas overtaken by a Canadian and his wife in a canoe who followed us...in expectation of being engaged in the [email protected] In 1805, the trader at Brandon House noted that one of his men had been obliged to give up half of a buffalo cow he had shot close to the post, because she had been shot between him and Athe Canadians@ also out buffalo hunting.19 These hunting ACanadians@ may have been freemen, or employees of rival trading posts such as the North West Company posts on the Assiniboine at Point aux Trembles (east of Brandon House) or Assiniboine House (almost directly across the river).

17 Regarding the employees= expenditures, see for example Provencher to Bishop Plessis, 13 September 1818, as reprinted in Documents relating to North West Missions, Grace Lee Nute, ed. (Saint Paul: Published for the Clarence Walworth Alvord Memorial Commission by the Minnesota Historical Society, 1942),158 (Doc. #62).

18 Brandon House post journal, entries for 30 and 31 August 1796, HBCA, B.22/a/4, pages 10 and 10 verso (Doc. #10). ACanada@ at this time included the land draining into the St. Lawrence River, and territory on the north shore of the Great Lakes south of the height of land, but was normally used to described the settled areas along the St. Lawrence River that are now part of the Province of Québec. See Historical Atlas, Vol. I, Harris, ed., plate 44 (political map of North America following the Treaty of Paris in 1783) (Doc. #372).

19 Brandon House post journal, entry for 10 August 1805, HBCA, B.22/a/13, page 7 verso (Doc. #17).

188 8

Alexander Henry the Younger, the North West Company trader operating out of Pembina Fort at the meeting of the Pembina and Red Rivers, responsible for trading posts along the Red and Assiniboine Rivers, noted in August of 1806 at Assiniboine House that there were no buffalo around Brandon and as a result, Athere are a few freemen about this place, who have actually disposed of their women and clothing to the H. B. Co.=s people in barter for beat [email protected] In August of 1807, travelling up the Red River on his way to Pembina, Henry noted that Athis season we were troubled by an augmentation of freemen from Canada, etc. Their total numbers on this river amounted to 45".21 A few days later, the Hudson=s Bay Company trader travelling to Brandon House stopped for a short time at the Forks before proceeding on up the Assiniboine. He wrote, this place is swarming with freemen all waiting to engage on this service I would have nothing to do with them. I have had enough of their [witchraft?] already. I sent them all to their [illegible word] Henry he may settle with them as he pleases.22

The numerous freemen near Pembina post subsequently appear several times in Henry=s 1807 - 1808 journal. In July of 1808, he reported that Athe freemen are daily coming in with dried provisions, beat meat, and [email protected] One of these groups of freemen narrowly missed a confrontation with the Sioux, who had attacked Saulteaux Indian people camped outside Henry=s

20 Alexander Henry the Younger=s journal AFrom the Mandans to Pembina, 1806", entry for 10 August 1806, as reprinted in The Manuscript Journals of Alexander Henry and of David Thompson, Elliott Coues, ed., (New York: F. P. Harper, 1897; reprinted by Ross & Haines, Inc., Minneapolis, 1965), 416 (Doc. #19). ABeat meat@ means meat (probably dried buffalo meat) that has been pounded to reduce its volume.

21 Alexander Henry the Younger=s journal from Pembina River post, 1807 - 1808, entry for 31 August 1807, as reprinted in The Manuscript Journals, Coues, ed., 424 (Doc. #21).

22 Brandon House post journal, page 3, entry for 5 September 1807, HBCA, B.22/a/15 (Doc. #20).

23 Alexander Henry the Younger=s journal from Pembina River post, 1807 - 1808, entry for 11 July 1808, as reprinted in The Manuscript Journals, Coues, ed., 431 (Doc. #21). The Agrease@ probably came from buffalo, which contained more fat than other available animals, and was used to make dried meat digestible, as a cooking fat, to make soap and candles, and for other household purposes.

189 9 fort. Henry wrote, I perceived a large body of horsemen coming on the road; but on examining them with my glass, I saw a cart among them and soon recognized them as a party of freemen coming with loads of grease. On arrival they were astonished to learn of their narrow escape from the Sioux, who would have shown them no mercy. The usual route of those freemen in summer, when they come in the fort, lies along the Red river, and is exactly that by which the enemy came and returned. But on this occasion, the freemen had taken an unusual route on leaving their tents, and come by the upper road along the foot of the Hair hills and Tongue river...But we now supposed the enemy had fallen in with two freemen who had left there yesterday about noon with a cart, on their return to their tents at the foot of the Hair hills; as those just arrived had not met them, but observed that the track of a cart had gone by the road along Red river...we gave them over for dead...24

Fortunately, however, the two freemen avoided the war-party. The next day, Henry spotted a group not far from the fort, to the north-west, and saw two men detach themselves from the group and ride out to meet Henry and his Saulteaux Indian scouting party: We soon saw they had hats on, and thus knew them to be white men; we rode up to them, and were agreeably surprised to find them to be the two freemen who we had supposed were murdered. They informed me that, on leaving the fort, they had actually taken the road along the river, but had not gone more than a mile when they changed their minds, and struck away directly for their tents across the plains, W. S. W., in hopes of seeing some buffalo. In this they were disappointed, and having no provisions, they decamped, and were then on their way to the point of Two Rivers, where they intended to live on fish; and the party we saw at a distance were their families.25

Henry and his scouts were still out close to the fort when About dark we perceived a party of men, women, and children coming down to the E. side of Red river. They proved to be a band of freemen, almost naked, who left their old camp at the foot of the Hair hills yesterday, and had come across the plains. About eleven o=clock this morning they arrived at the point of Two Rivers, where they fell upon a broad road and found several articles which they knew to be Sioux property. This gave them a great alarm...they saw us coming. They instantly ran along the woods, down the bank, and thence along the shore, where

24 Henry=s journal from Pembina River post, 1807 - 1808, entry for 24 July 1808, as reprinted in The Manuscript Journals, Coues, ed., 434 (Doc. #21).

25 Henry=s journal from Pembina River post, 1807 - 1808, entry for 25 July 1808, as reprinted in The Manuscript Journals, Coues, ed., 436 (Doc. #21).

190 10

they made a raft and crossed over, leaving their carts and horses standing on the edge of the plains...

This evening another freeman arrived from the salt lake on Park river, bringing two cartloads of grease. This man fell upon the war road at the Grand Point, S. of the Bois Percé, but never suspected it to be an enemy=s track; supposing it had been made by a war-party of Saulteurs, he went down to the river to water his horse...and remained ignorant of the danger he had escaped until we informed him.

It is really astonishing what a narrow escape these freemen had from this war- party. Furthermore, their track in coming and going along Red river passed within nine miles of a camp of freemen on Park river, where there were but three men, with upward of 20 women and children, and 100 excellent horses belonging to themselves and to those of my people who had gone to Fort William...26

The next day, Henry wrote that Athere was due the Indians a keg of liquor, payable in the fall by a freeman; but the fellow imprudently gave it to them this afternoon...The freemen went for their carts to Two [email protected] On the 29th of July, Athe freemen and Indians decamped for the mountain, to hunt red deer and moose in the strong [email protected] The Amountain@ to which Henry referred could be Turtle Mountain, about 85 to 90 miles to the west; or APembina Mountain@, a rise of land west of the Red River from south of the Assiniboine River to the vicinity of Pembina. As Henry called the rise of land also known as Pembina Mountain the AHair Hills@,29 Turtle Mountain may be the more likely possibility.

Henry=s descriptions are packed with information. Although Henry had not written at length

26 Henry=s journal from Pembina River post, 1807 - 1808, entry for 25 July 1808, as reprinted in The Manuscript Journals, Coues, ed., 437 - 438 (Doc. #21).

27 Henry=s journal from Pembina River post, 1807 - 1808, entry for 26 July 1808, as reprinted in The Manuscript Journals, Coues, ed., 438 (Doc. #21).

28 Henry=s journal from Pembina River post, 1807 - 1808, entry for 29 July 1808, as reprinted in The Manuscript Journals, 438; also entry for 3 August 1808, 438 - 439 (Doc. #21). AStrong wood@ is Henry=s term for thickly wooded areas.

29 Alexander Henry the Younger=s journal of Athe Red River Brigade of 1800", entry for 27 August 1800, as reprinted in The Manuscript Journals, Coues, ed., 66 (Doc. #11).

191 11 about the Afreemen@ until 1807 - 1808, when he commented on their numbers along the Red River, he was able to write about the Ausual route of those freemen in summer, when they come in the fort@, as if they had established a regular pattern of activity over a period of years. The freemen came in to the fort, in many groups ranging in size from one or two to more than a dozen families, to trade meat and other food products to Henry. They hunted for buffalo, deer, and moose, on the prairie in the vicinity of Brandon, and west of the Red River north and south of Pembina, both for their own food and for trade, and when these failed lived on fish from the rivers. They had customary encampments in the Hair Hills (Pembina Mountain) and along the Park River. They also gathered at the Forks of the Red and the Assiniboine in hopes of getting seasonal work from the trading companies whose boats passed by that point every year. They had carts and many horses, and this with their European dress distinguished them from the local Indian populations. They were in danger from attacks by the Sioux, but not from the Saulteaux. Some of them traded independently with the Indians, using liquor as the other trading companies did at the time. They moved in company with their families to their trading and hunting places, implying a generation of children raised in a travelling life going wherever the hunting, fishing or their father=s employment took them.

As well as these Afreemen@, a significant population of men of European descent regularly employed at the posts was developing by the turn of the eighteenth and nineteenth centuries, accompanied by Aboriginal wives and growing numbers of children. Henry attempted to report on the AWhite@ and AIndian@ population in the North West in 1805, in which he recorded 45 AWhite@ men accompanied by 22 women and 18 children at Fort Dauphin, 56 men, 52 women, and 82 children on the upper Red River (including the posts near Lake Winnipeg), and 75 men, 40 women and 60 children on the lower Red River (including Portage la Prairie, Pembina, and Grand Forks).30 Henry gave a separate estimate of a total of 520 men employed by the XY Company across the North West, but it is not apparent if his totals include Hudson=s Bay Company employees. Margaret Clarke, in her M. A. thesis on the fur trade community in the

30 Alexander Henry the Younger=s journal from Pembina river post, 1805 - 1806, as reprinted in The Manuscript Journals, Coues, ed., 282 (Doc. #16).

192 12

Assiniboine Basin from 1793 to 1812, counted 119 men employed by the Hudson=s Bay Company at the Assiniboine posts during the period 1793 to 1805, of whom about one-third spent more than five years in the area.31

The population of freemen was at least in part drawn from the ranks of men employed at the posts on the Assiniboine and the Red. Henry had remarked, in October of 1805, that Pelletier, Desjardins, Bos Pangman, and others, arrived from the Assiniboine B X. Y. freemen, the first of the kind who ever came to Panbian [Pembina] river, and as great a nuisance, according to their capacities, as their former employers. This quarter has hitherto been free from men of that description, as I made it a rule never to give a man his freedom in this country on any conditions whatever, and I have always found the benefit of such procedure.32

Henry, however, had written in November 1803 of his Ahunter@, Joseph Cyr, complaining that Athose freemen are a nuisance in the country, and generally scoundrels; I never yet found one honest man among them@,33 and was writing in 1808 of their Ausual@ activities. Whether or not he allowed his men to leave the service while still in the area, some of them simply deserted.34 Other companies and independent traders (like the XY Company, which had merged with the North West Company in November 1804) left their men in the field at the expiration of their contracts. Some freemen, such as the Bos Pangman mentioned by Henry, later rejoined the companies as full-time employees.35

31 Margaret Clarke, AReconstituting the Fur Trade Community of the Assiniboine Basin, 1793 to 1812", M. A. thesis, University of Winnipeg/University of Manitoba, 1997, 3-46 (Doc. #378).

32 Henry=s journal from Pembina River post, 1805 - 1806, entry for 26 October 1805, as reprinted in The Manuscript Journals, Coues, ed., 269 (Doc. #16).

33 Alexander Henry the Younger=s journal from Pembina River post, 1803 - 1804, entry for 30 November 1803, as reprinted in The Manuscript Journals, Coues, ed., 231 (Doc. #15).

34 See for example Alexander Henry the Younger=s journal from Pembina river post, 1801 - 1802, entries for 28 April 1802 and 15 May 1802, as reprinted in The Manuscript Journals, Coues, ed., 196 and 197 (Doc. #13).

35 Henry=s journal from Pembina River post, 1805 - 1806, as reprinted in The Manuscript

193 13

Lord Selkirk, in describing the state of the country along the Red and Assiniboine Rivers prior to the arrival of his settlers in 1812, wrote of the freemen as follows: Besides the Native Indians, there were a few other people, who might be considered as permanent inhabitants of the Country. Some of the Canadian Servants of the NWCo having married Indian Women, + having formed an attachment to the Country, on account of the great abundance of game + facility of living, had obtained permission to remain there after the expiration of their Service...These people were commonly termed Freemen, to distinguish them from the Engages or contracted Servants of the NWCo these men + their halfbreed Sons live in general much after the manner of the Inds. Their business was hunting, + few of them had commenced any cultivation or built houses. They lived in leather tents or lodges, like the Sioux or Ossiniboynes + removed with their families from one part of the Country to another as the prospects of the chase might prompt them. But their principal resorts were near Pembina + the Forks. They obtained their supplies of Europn. Manufrs. from the N. W. Co in exchange for their furs in the same manner as the Indians. Notwithstanding the appellation of Freemen, the N. W. Co still continued to exercise a great degree of authority over them. B As it was originally by permission of the Co that these men had established themselves in the Country, the Co pretended to have a right at any time that they pleased to send them out of it...The Cans. in the Service of the NWC are with few exceptions, impressed with habitual terror for the power of their Masters + the severity of its exercise + from the dread of being torn away from their families...these Freemen + their half breed Sons were nearly as much under the command of the NWCo as the Servants on their pay B

All these Freemen were masters of the language of the Sauteux among whom they lived, + were looked upon by the natives, as nearly the same as of their own tribe. A few of the Servants of the HBCo had in like manner established themselves in the vicinity of Brandon House, living with the Cree nearly in the same manner as the free Canadians of R. R. did with the Sautoux. There are freemen of the same description in many other parts of the Indn. Country but they are not so numerous...36

This description echoes much of the information given by Henry: the hunting life and mobility of the Afreemen@ and their Ahalf breed Sons@, and their ties to the Forks, Pembina and Brandon

Journals, Coues, ed., 269, fn. 9 (Doc. #16).

36 AM. S. By Lord Selkirk Relating to Red River@ [date ?], Selkirk Papers, pages 12.666 - 12.667 (Doc. #52).

194 14

House. Selkirk and Henry disagree, however, on the strength of the ties of the freemen to the North West Company. Henry seemed to attempt to drive the freemen away and claimed that they were not his NWC men, whereas Selkirk emphasized the links between the NWC and the Afree@ population, possibly to better explain what happened at the colony in 1815 and 1816 (to be discussed in the next section).

Henry had described the freemen in 1808 as being Afrom Canada, etc.@. The majority of his employees had French names,37 while the Hudson=s Bay Company men tended to be of British descent.38 Margaret Clarke, in her analysis of fur-trade company employees in the Assiniboine Basin in 1804, identified 16 of the 23 HBC employees at Brandon House to be from the Orkney Islands off Scotland, and 38 of the 63 NWC employees at Assiniboine House as ACanadien@, based on information that they had signed their employment contracts in Lower Canada (Québec). She also used references in fur-trade records to identify 18 NWC employees and 3 HBC employees as of mixed Aboriginal/European ancestry.39

As well as the British Isles and the St. Lawrence River valley, fur-trade employees and freemen in Southern Manitoba in the early eighteenth century could have been born in the Afur trade country@ that had been developing around the Great Lakes for the previous seventy-five years. The population of towns and hamlets such as Prairie du Chien (Wisconsin), Baie Vert or Green Bay, Sault Ste. Marie, Detroit and Michilimackinac was predominantly of mixed Aboriginal and European ancestry, and maintained steady ties to the fur trade.40 While the precise ethnic origins

37 See for example Henry, AThe Red River Brigade of 1800", entry for 21 August 1800, as reprinted in The Manuscript Journals, Coues, ed., 49 - 52 (Doc. #11).

38 See for example Brandon House post journal, entry for 17 November 1810, HBCA, B.22/a/18a, page 8 (Doc. #22).

39 Clarke, Assiniboine Basin, 3-57 (Doc. #378).

40 See Jacqueline Peterson, AEthnogenesis: The Settlement and Growth of a >New People= in the Great Lakes Region, 1702 - 1815", in American Indian Culture and Research Journal, 6:2 (1982), 23 - 64 (Doc. #364); and AMany Roads to Red River: Métis Genesis in the Great Lakes Region, 1680 - 1815", in The New Peoples: Being and Becoming Métis in North America,

195 15 and birthplaces of the employee and freeman populations in Southern Manitoba prior to the establishment of the Selkirk Settlement cannot all be established with certainty, Elliot Coues has traced some of Henry=s employees to connections with the fur trade country,41 and Gerhard Ens has observed many of the same surnames in early Mackinac birth and marriage registers as in later Red River registers.42

It is also not possible to confirm the ethnicity and origin of most of the wives of the freemen and employees, beyond the fact that there were of Aboriginal ancestry. In a few cases, the fur traders= journals refer to the relations by marriage of employees, or to the employees acquiring wives, which would indicate that the employees had married into local Indian tribes.43 In other cases, the wives and some of the children may have come with the employees and freemen from other fur trade points. The references to births and very young children among the employees indicate that, in any event, mixed-ancestry children of the first or possibly second generation were being born in Southern Manitoba by the turn of the nineteenth century.

II. The Establishment of the Selkirk Settlement and First Expressions of Métis Nationalism, 1810 - 1818

Prior to 1810, the Forks of the Assiniboine and the Red, while a popular stopping, meeting and redeployment place for the fur trade canoe brigades en route to the posts, was not the site of any

Jacqueline Peterson and Jennifer S. H. Brown, eds. (Winnipeg: University of Manitoba Press, 1985), 37 - 71 (Doc. #368).

41 See for example The Manuscript Journals, Coues, ed., footnote 55 on pages 49 - 52 (Doc. #11); and footnote 3 on pages 186 - 187 (Doc. #13).

42 Gerhard Ens, Homeland to Hinterland: The Changing Worlds of the Red River Metis in the Nineteenth Century, (Toronto: University of Toronto Press, 1996), 15 (Doc. #377).

43 See Henry=s journal from Pembina River post 1803 - 1804, entry for 24 October 1803, in The Manuscript Journals, Coues, ed., 228 (Doc. #15); and Henry=s account of the gruesome deaths of his own parents-in-law in his journal of 1805 - 1806, entry for 1 August 1805, in The Manuscript Journals, Coues, ed., 260 - 264 (Doc. #16).

196 16 permanent European development.44 Some freemen and their families had gathered there, planting gardens of potatoes.45 One of these freemen was likely Jean-Baptiste Lagimodière, who in 1806 brought back his French-Canadian wife Marie-Anne to the Red River. Marie-Anne was the first non-Aboriginal woman to settle in the North West.46 Other freemen included Jacques Ammelin [Hamelin], who had lived along the Red River since 1792, and Baptiste Marsolais [Marcellais], who had lived there since 1783.47 The North West Company built a substantial trading fort at the Forks in 1810, named Fort Gibraltar, to secure the site, improve their facilities, and provide a provision depot for their North West trade, especially the Athabasca posts and canoe brigades.48

As Fort Gibraltar was being completed, a lowland Scottish nobleman named Thomas Douglas, Lord Selkirk, was completing the arrangements for a quite different use of the Forks. From the beginning of the nineteenth century, Selkirk had been looking for places in the New World to settle the many Highland Scots tenant farmers who had been displaced by the Aclearances@ as landlords replaced farming with more profitable sheep-raising. He had identified the Red River

44 See Henry=s journals, entries for 18 - 20 August 1800 (pages 43 - 48) (Doc. #11), 19 May 1801 (pages 182 - 182) (Doc. #12), 22 August 1801 (page 185) (Doc. #13), 14 June 1803 (pages 214 - 215) (Doc. #14), 29 May - 5 June 1806 (page 276) (Doc. #16), 23 - 27 August 1806 (page 421) (Doc. #19), all as reprinted in The Manuscript Journals, Coues, ed.; also Brandon House post journal, entry for 5 September 1807, HBCA, B.22/a/15, page 3 (Doc. #20).

45 M. Macdonell to W. Auld, 5 December 1812, HBCA, B.239/b/83, page 3 verso (Doc. #23).

46 In his journal, Alexander Henry told the startling story of an Orkney girl who had disguised herself as a man and followed her partner to the North West. She was only found out when she gave birth to a Afine boy@ in Henry=s sitting room at Pembina River in December 1807. The girl and her son were sent back to the Orkneys the following spring. Henry=s journal of the Pembina river post, 1807 - 1808, entry for 29 December 1807, as reprinted in The Manuscript Journals, Coues, ed., 426 (Doc. #21).

47 Deposition of Jacques Ammelin and Baptiste Marsolais, 30 July 1817, Selkirk Papers, pages 15.911 (Doc. #47).

48 M. A. MacLeod and W. L. Morton, Cuthbert Grant of Grantown (Toronto: McClelland and Stewart, 1963), 10 - 15 (Doc. #360).

197 17

Valley as a suitable location, decided that the best way to obtain access was to acquire an interest in one of the fur-trading companies that used the area, and in 1808 started buying shares of the Hudson=s Bay Company. By May of 1811, Selkirk had persuaded his fellow shareholders to grant him 116,000 square miles in the Red/Assiniboine basin (AAssiniboia@), in fee simple, to begin his settlement. In July of 1811, seventy prospective settlers, predominantly Scottish with a few from Ireland, sailed from Scotland. They wintered at York Factory, and came down to the Forks in the late summer of 1812. The group then spent the winter at Pembina, to be close to the buffalo, as there was no food at the Forks. The settlers arrived again at the Forks in the spring of 1813, to attempt their first summer season of house-building and cultivation. River lots were surveyed for them, and they and Hudson=s Bay Company employees worked to build Fort Douglas, on the Red a mile north of the Forks.49

However, the first year=s crops were insufficient to support the colony, and the settlers once again went down to Pembina to winter closer to the buffalo. The herds stayed further away than usual, and by January Miles Macdonell, the governor of Assiniboia, was concerned about the food supply for the colony. In January 1814, he issued a proclamation prohibiting the export of any provisions from Assiniboia except under his licence.50The North West Company had from the beginning of the establishment of the settlement been suspicious and worried about its potential to disrupt their trade. Unimpeded passage through the Forks, and access to the enormous quantities of buffalo meat from the plains nearby, were critical to the provisioning of their posts with food and trade goods, and the passage of furs back to Montréal. The building of a large fort and the arrival of settlers at the Forks, and the assertions of HBC sovereignty over Assiniboia, were

49 J. M. Bumsted, AIntroduction@, The Collected Writings of Lord Selkirk, Vol. II 1810 - 1820 (Winnipeg: Manitoba Record Society, 1987), xiii - xxv (Doc. #370); MacLeod and Morton, Cuthbert Grant, 17 - 18 (Doc. #360); J. P. Pritchett, The Red River Valley 1811 - 1849: A Regional Study (Toronto: The Ryerson Press, 1942), 21 - 47, 59, 64 (Doc. #356); W. L. Morton, Manitoba: A History (Toronto: University of Toronto Press, 1957 (second edition, 1967), 44 - 49 (Doc. #362).

50 AProclamation@, Governor of Assiniboia, 8 January 1814, Selkirk Papers, pages 915 - 919 (Doc. #64); Pritchett, Red River Valley, 131 - 132 (Doc. #356); MacLeod and Morton, Cuthbert Grant, 20 (Doc. #360).

198 18 directly threatening to the heart of their business. When Governor Macdonell enforced his proclamation by preventing the North Westers from removing pemmican from a buffalo-hunting camp near the Turtle River and seizing a large quantity of pemmican from a cache at a North West Company post at the confluence of the Souris and Assiniboine Rivers in June, the North Westers saw the anticipated danger become real. They gathered a large number of traders, voyageurs and other allies, among whom were many people of mixed Aboriginal and non- Aboriginal ancestry, to confront Macdonell at the Forks. An agreement was reached to exchange the pemmican needed immediately for the North Westers= canoe brigades for a promise of provisions for the colony for the winter of 1814 - 1815. In July of 1814, however, Macdonell issued a second proclamation forbidding the practice of hunting buffalo by chasing them on horseback, on the grounds that this drove the herds too far from the settlement. As this technique was the specialty of the freemen and North West Company hunters, who were better-equipped with horses than the Indians,51 this second proclamation seemed to directly affect their interests and way of life.52

Historian Marcel Giraud provides many examples of early personal kindness and assistance from the Indians, freemen and North West Company employees to the new settlers at Red River. Some of these people welcomed the establishment of the settlement as an alternative market for their products, a commercial centre with a greater variety of goods from which to choose, and as a potential home for their mixed-ancestry families when they wanted to retire from the fur trade.53 Governor Macdonell reported in the summer of 1814 that Asome free Canadian families + others wished to take lands in the neighbourhood@ of the Hudson=s Bay Company=s Pembina River post after the settlers had constructed it, believing that the HBC presence would Aprotect them against

51 Macdonell to Selkirk, 25 July 1814, Selkirk Papers, page. 1.184 (Doc. #27).

52 Pritchett, Red River Valley, 115 - 117, 128 - 144 (Doc. #356); MacLeod and Morton, Cuthbert Grant, 20 - 23 (Doc. #360); Morton, Manitoba, 50 - 51 (Doc. #362); Bumsted, Selkirk, xxx - xxxviii (Doc. #370).

53 Marcel Giraud, The Métis in the Canadian West, vol. I (Edmonton: University of Alberta Press, 1986) (translation by George Woodcock of Le Métis Canadien (Paris: Institut d=Ethnologie, Musée National d=Histoire Naturelle, 1945), 389 - 392 (Doc. #357).

199 19 the [email protected] As well, Macdonell recorded the presence of Afree Canadians with their Indian women + children amounting to upwards of 200 souls@ on the Red River.55 He wrote, Athe greater part of them wander about this river, some of them have taken lands, but they are very poor + must have time given them for payment.@ ATo secure the attachment of the Canadian freemen against the N. W. Co...as also to withdraw them from the plains + induce them to be industrious@, Macdonell promised to Amake over to them gratis all the lands they could cultivate for 3 years + to furnish them with seeds, but they have followed so long the Indian manner of living that it will not be an easy matter to wean them from it@. In addition to Athe settlement at Pembina@, Macdonell wrote, Athere is a distinct Canadian settlement begun this spring on the Ossiniboia R. about halfway between this + Portage de la Prairie which promises to increase [email protected] When the settlers returned to the Forks, Peter Fidler of the HBC engaged several free ACanadians@ to fish, cut wood and help with building,57 and some also worked to ferry Governor Macdonell up and back to York Factory.58

The North West Company went to work on the mixed-ancestry people whom they hoped could be recruited against the settlement. They emphasized the threat that Macdonell=s proclamations posed to their way of life, and the infringement of their Aboriginal rights that the proclamations represented.59 The AFreemen and Metifs@ were told by NWC officers that the HBC intended to

54 Macdonell to Selkirk, 25 July 1814, Selkirk Papers, page 1.187 (Doc. #27).

55 See also AActual Number of Free Canadians with their Indian Wives, also their children, of both Sexes living with them at present residing in the Red River@, February 1814, in AMr. Fidler=s Journal 1815", Selkirk Papers, pages 18.506 - 18.507 (Doc. #26).

56 Macdonell to Selkirk, 25 July 1814, Selkirk Papers, pages 1.199 - 1.200 (Doc. #27).

57 AMr. Fidler=s Journal 1815", entries for 28 July, 1 August, 8 August 1814, Selkirk Papers, pages 18.431 - 18.432 (Doc. #26).

58 AMr. Fidler=s Journal 1815", entry for 20 October 1814, Selkirk Papers, page 18.457 (Doc. #26).

59 Journal of Colin Robertson, vol. II, entry for 20 August 1815, HBCA, E.10/1, page 193 (Doc. #34); Miles Macdonell, AA Sketch of the Conduct of the North West Company towards Red River Settlement from Septr.1814 to June 1815 Inclusive@, [11 November 1815?],

200 20

Areduce them to a state of [email protected] More than this, the North West Company leadership told mixed-ancestry people that the HBC actually intended to evict them from the territory.61 The Company also Aterm[ed] them the free Half breeds of Red River and informed them that they were the only masters of the [email protected] The North Westers chose four young mixed-ancestry men, the sons of senior North West Company employees, to be captains of the Métis, including Bostonais Pangman, of whom Henry had written, and Cuthbert Grant, who had been a clerk and trader at the North West Company=s post on the Qu=Appelle River just west of its confluence with the Assiniboine.63 The two parties (the Hudson=s Bay Company and the settlement, and the North West Company and its mixed-ancestry supporters) made arrests of each other=s men through the winter of 1814 - 1815, and Grant encouraged mixed-ancestry people hunting buffalo near Pembina to continue hunting in their usual way, by chasing them on horseback, despite Macdonell=s proclamations.64 When most of the settlers returned to the Forks in May of 1815, they found that the North West Company (in the words of Peter Fidler), Ahave been the means of

Selkirk Papers, page 1.769 (Doc. #37).

60 Journal of Colin Robertson, vol. II, entry for 20 August 1815, HBCA, E.10/1, page 193 (Doc. #34).

61 J. White to Lord Selkirk, 7 August 1815, Selkirk papers, page 20.238; quoted in Giraud, Métis, vol. I, 408 (Doc. #357).

62 Journal of Colin Robertson, vol. II, entry for 20 August 1815, HBCA, E.10/1, page 193 (Doc. #34).

63 Grant was the son of Cuthbert Grant the elder, a Scottish North West Company partner, and a mixed-ancestry woman from the Saskatchewan River Valley. He was born circa 1793 at Fort de la Rivière Tremblante in present-day Saskatchewan, and moved with his parents to trading posts along the Assiniboine River. Cuthbert Grant the elder died in 1799, and North West Company partner William McGillivray was appointed his guardian. He was baptized in Montréal in 1801 and educated in either Montréal or Scotland. He returned to Montréal to work for the NWC in about 1810, and returned to the North West in 1812. Morton and MacLeod, Cuthbert Grant, 1 - 7 (Doc. #360); George Woodcock, ACuthbert Grant@, in Dictionary of Canadian Biography, vol. VIII (Toronto: University of Toronto Press, 1985), 341 - 342 (Doc. #388).

64 Macleod and Morton, Cuthbert Grant, 23 - 27 (Doc. #360); Bumsted, Selkirk, xxxviii - xlv (Doc. #370).

201 21 keeping the Freemen + their sons in arms most part of the winter@, hesitating at nothing Ato complete their purpose of utterly breaking up the [email protected] John Pritchard, a former North West Company employee turned settler, recalled that it was Aat this period for the first time, the half- breed Servants of the North West Company assumed a new character, called themselves the >Bois-Brules= and the >New [email protected] In August 1815, recalling the events of 1814 - 1815, North West Company partner William McGillivray criticized the Colony=s poor relationship with Athe natives of the Country, especially the Half Breed Indians, a daring and now numerous race sprung from the intercourse of the Canadian Voyageurs with the Indian women and who consider themselves the Possessors of the Country and Lords of the [email protected]

By June of 1815, a large number of mixed-ancestry people, freemen, and disaffected settlers gathered in military formation under Grant and the other three leaders at Frog Plain (now Kildonan), ambushing and skirmishing with settlers and HBC men defending Point Douglas. Governor Macdonell agreed to give himself up for arrest on 17 June in exchange for a halt to the attacks. On 25 June, Cuthbert Grant and the three other mixed-ancestry leaders issued an order to Peter Fidler, the HBC employee in charge of Point Douglas, to leave with all the colonists.68 Fidler attempted a counter-proposal: 1st. It is hereby promised that peace + amity shall hereafter ever exist between the people of this Settlement and the Half Breeds + that all that has been done on both sides shall be forgiven.

2nd. It is furthermore agreed that the Half Breeds shall ever enjoy the full liberty of running Buffalo and living according to the custom in which they have been

65 AMr. Fidler=s Journal 1815", entry for 19 May 1815, Selkirk Papers, page 18.461 (Doc. #26).

66 ANarrative of Mr. John Pritchard of the Red River Settlement@, 4 May 1819, Selkirk Papers, page 12.321 (Doc. #70).

67 William McGillivray, AStatement relative to the Settlers from the Red River@, 15 August 1815, Selkirk Papers, page 1622 (Doc. #35).

68 AMr. Fidler=s Journal 1815", entries for 21 and 25 June 1815, Selkirk Papers, pages 18.493 - 18.494 (Doc. #26).

202 22

brought up.

3rd. And it is also agreed that they shall not be subject to any Local Laws that may be hereafter established, unless they finding the good effects of living a civilized life shall come forward and ask to be admitted into our society, then they shall be considered as one of us and shall enjoy all the Privileges that we may possess.

4th. And it is further promised that whatever presents may be given annually to the Indians, that the Half Breeds shall have an equal share with them.

Red River Settlement, 25th June 1815.69

However, this did not meet the expectations of the leadership of the mixed-ancestry leadership, and they drafted a counter-proposal which Fidler was obliged to sign: 1. All Settlers to retire immediately from this River, and no appearance of a colony to remain.

2. Peace and quietness to subsist between all Parties, Traders, Indians, and freemen in future throughout these two Rivers and on no account any person to be molested in his Lawful pursuits.

3. The Honourable Hudson=s Bay Company will (as customary) enter this river if they think proper, from three to four of their former trading Boats, and from 4 to 5 men per boat as usual.

4. Whatever former disturbances has taken place between both parties, that is to say, the Honourable Hudson=s Bay Company and the Half Breeds of the Indian Territory, to be totally forgot and not recalled by either party.

5. Every person retiring peaceably from this river immediately, shall not be molested in their passage out.

6. No people passing the summer for the Honourable Hudson=s Bay Company shall remain in the Buildings of the Colony, but shall retire to some other spot they will establish for the purpose of Trade...

The four Chiefs of the Half Indians by the mutual consent of their Fellows.

Red River Indian Territory, Forks, Red River, 25 June 1815.70

69 AMr. Fidler=s Journal of 1815", Selkirk Papers, pages 18.515 - 18.516 (Doc. #26).

70 AMr. Fidler=s Journal of 1815", Selkirk Papers, pages 18.514 - 18.515 (Doc. #26).

203 23

Fidler had offered the Ahalf-breeds@ recognition of their right to live Aaccording to the custom in which they have been brought up@, exempting them from settler laws and guaranteeing them, in particular, the right to hunt in their customary way. He also implicitly recognized their right to have defended these rights by attacking the colony and disregarding Macdonell=s proclamations and assertions of sovereignty. However, his offer had been made under the assumption that the settlers had the right to stay in their colony and make laws at the ARed River Settlement@. Grant and the others rejected this framework and instead insisted on their right to control who could live on the land (the ARed River Indian Territory@) to which they claimed ancestral ownership, making the settlers= offer to recognize their rights irrelevant. Under this framework, they allowed the HBC to retain its usual trading presence, as the competition for labour and trade benefited them, but they would not permit the presence of a government that believed it could decide what other rights to recognize. Fidler duly packed the settlers up and led them north.

However, in August the settlers returned, with a large group of new colonists under the leadership of veteran HBC employee Colin Robertson. Robertson recorded that they arrived Aat the frog plain about 9 O=Clock AM where all the Freemen and Halfbreeds were encamped...they were rather astonished to see [email protected] Robertson, however, greeted them by assuring them that all enmity was forgotten, and distributed rum and tobacco. In the succeeding weeks, he extended his hospitality to them and allowed them to speak freely about what had happened.72 In the fall, Grant returned to his post on the Qu=Appelle River, with his colleague Alexander Macdonell. James Sutherland of the Hudson=s Bay Company post nearby recorded their arrival: Freeman and Half Breeds forming two distinct companies. Macdonell led one of these consisting of Canadians with colours flying, the other Company were Half Breeds headed by Cuthbert Grant...This Tribe had another Flag hoisted of what Nation I know not. It is red with a figure of 8 placed horizontally in the middle of it and is said to be a present from the N. W. Co....to...the Half Breeds as a

71 Journal of Colin Robertson, vol. II, entry for 19 August 1815, HBCA, E.10/1, page 190 (Doc. #34).

72 Journal of Colin Robertson, vol. II, entry for 20 August 1815, HBCA, E.10/1, page 193 - 194 (Doc. #34).

204 24

recompense for their exertions against the colony, Spring 1815...73

Meanwhile, Bostonais Pangman hunted for the colonists near Pembina.74 In November of 1815, a new Governor, Robert Semple, arrived at the colony with a party of new settlers.

Grant, however, was not reconciled to the colony. He wrote to a North West Company colleague in March of 1816 that I am as yet safe and sound thank God, for I believe its more than Robertson or any of his suit dare to offer the least insult to any one of the Bois Brûlés; altho= Robertson made use of some expressions, which I hope he shall swallow in the Spring B he shall see that it is neither 15, thirty nor fifty of his Horsemen that can make the Bois Brûlés bow down to him B The Half Breeds of Fort Dauphin, de Praries & English river are all to be here in the spring, it is hoped we shall come off with flying colours and never see any of them again in the Colonizing way in Red River, in fact the Traders shall pack off with themselves also, for having disregarded our orders last spring; according to our arrangements, we are to remain at The Forks & pass the Summer for fear they should play us the same trick as last Summer of coming back...75

In a ceremony at Fort Qu=Appelle that likely took place the same day this letter was written, Cuthbert Grant was Aappointed Captain-General of all the Half Breeds in the [email protected] Shortly afterwards, Colin Robertson seized Fort Gibraltar, suspecting a developing plot to attack the colony again in the spring. This event restarted arrests, seizures, ambushes and skirmishes between the two opponents. On May 22, 1816, a party of about 50 fighters under Grant, flying the figure-eight flag, captured the Hudson=s Bay Company=s Brandon House as they travelled up

73 Narrative of James Sutherland, Selkirk Papers, page 1946 - 1947 (Doc. #29). For another description of the Métis flag, see Brandon House post journal, entry for 1 June 1816, HBCA, B.22/a/19, page 36 (Doc. #33).

74 MacLeod and Morton, Cuthbert Grant, 33 (Doc. #360).

75 Grant to J. D. Cameron, 13 March 1816, Brandon House post journal, HBCA, B.22/a/19, pages 23 and 23 verso (Doc. #33).

76 James Sutherland=s Narrative, 1815, Selkirk Papers, page 1951 (Doc. #33).

205 25 the Assiniboine. On June 19, Grant was leading an advance party on a circuitous route west of Fort Douglas, when Governor Semple=s men spotted them on the horizon. Semple rode out with about 25 men to confront him. When the two parties met near a clump of trees, at a spot called Seven Oaks, an uneasy standoff was broken by the discharge of a gun. Fifteen minutes later, Semple and all but four of his men were dead, while only one of Grant=s party had fallen.77 The colonists, terrified and gathered inside Fort Douglas, clamoured to be allowed to leave. Grant guaranteed their safety, and on 27 June they left under the leadership of Fidler, the acting governor of the colony.78

Lord Selkirk was at that time on his way to the Red River from Montréal, accompanied by about a hundred discharged soldiers who were to defend the colony and then have the opportunity to take up land. This group seized the North West Company headquarters and depot at Fort William (now Thunder Bay) in August. The North Westers tried to convince the mixed-ancestry people at Red River to advance to Rainy River to defend the company=s interests there and prevent Selkirk=s advance, but most of them refused, Apreferring to defend their lands in Red [email protected] Selkirk and his soldiers then went on to take Pembina Fort, and retook Fort Douglas in January of 1817. He brought with him a Royal Proclamation from the Prince Regent commanding all parties to keep the peace, and stated that he had no interest in blocking the North West Company=s brigades or in engaging in retributive war against mixed-ancestry people as a group. Selkirk, with the prestige of his Scottish title, proprietorship of the HBC, and his uniformed soldiers, did allow the North West brigades to pass, and he offered gifts and hospitality to mixed-ancestry people who came to the Fort.80 Although Grant mustered groups twice to approach Fort Douglas, they would not

77 MacLeod and Morton, Cuthbert Grant, 44- 51 (Doc. #360); Pritchett, Red River Valley, 175 - 177 (Doc. #356).

78 AMr. Fidler=s Journal of 1815", entry for 27 June 1815, Selkirk Papers, page 18.505 (Doc. #26)

79 Colin Robertson, quoted in MacLeod and Morton, Cuthbert Grant, 54 (Doc. #360).

80 MacLeod and Morton, Cuthbert Grant, 62 - 63 (Doc. #360); Bumsted, Selkirk, lvii - lviii, lxvii - lxviii (Doc. #370); Giraud, The Metis, vol. I, 473 - 475 (Doc. #357).

206 26 attack Selkirk, his soldiers and the colony. In August, Grant gave himself up to be arrested and tried in Montréal. He spent the winter in Montréal, but returned to the North West in the summer of 1818 having been effectively acquitted on some charges and not having been tried on others. He resumed his clerkship for the North West Company post on the Qu=Appelle River. Although skirmishes continued to break out between parties of the two companies until their merger in 1821, and the colonists continued to winter near Pembina nearer the buffalo herds, there were no more full-scale evacuations of the settlement.

The mixed-ancestry people living around Red River had no hostility to the settlers as people, or to the idea of an agricultural settlement among them. Such a settlement, and the competition of two thriving fur-trading companies, could benefit them by providing lively markets for their products and their labour. However, they resisted and attacked the colony when they were given cause to believe that their occupancy of the country and their way of life was directly threatened. Their supposed colleagues in the North West Company told them that they were to be driven out of their country, they saw the introduction of regulations that would affect their way of life as mobile hunters, they encountered an apparent disregard and disrespect for their rights and sovereignty, and under those conditions they tried to drive the settlers away. When Hudson=s Bay Company and colony personnel gave them assurances of security and welcomed them as valued partners in the country, they lost interest in attacking the settlement. Although the North West Company spent much time and effort in cultivating them, spreading disinformation among them about the intent of the colonists, and supporting their expressions of national identity and leadership, the NWC found they could not manipulate mixed-ancestry people like foot soldiers, loyal and ready to attack on command. Mixed-ancestry people were willing to co-exist with Europeans who Awould treat them...as an independent third party who were to be consulted...and engaged on their own [email protected] While some historians have termed this treatment Aflattery@,82 and characterized Métis nationalism and national Apersonality@ as having no solidity,83

81 MacLeod and Morton, Cuthbert Grant, 31 (Doc. #360).

82 MacLeod and Morton, Cuthbert Grant, 31 (Doc. #360).

83 Giraud, The Metis, vol. I, 469, 475 (Doc. #357).

207 27

Awavering@,84 and Aoscillating@,85 the actions of mixed-ancestry people during this period display considerable consistency to their own perceived interests, if not to those of the companies and colonial personnel.

The period from 1814 to 1816 was critical for the development of a separate identity for mixed- ancestry people. Prior to this period, historical sources refer primarily to ACanadians@ and Afreemen@, and occasionally to their Asons@ or families with Indian wives. Subsequent to this period, sources usually distinguish mixed-ancestry people as Ahalf-breeds@, Amétis@, or Abois brûlés@ (their own preferred term of the time). Although the North West Company may have had an interest in stirring the nationalism and feelings of separateness of the Métis, it could not have invented the resonance these concepts had amongst many mixed-ancestry people, or the cultural and economic distinctiveness so easily identified by later observers.

III. The Arrival of Priests and the Establishment of St. François Xavier Parish, 1818 - 1824

In April of 1816, Governor Macdonell and Lord Selkirk wrote letters on the same day to the Catholic Bishop of Québec asking for a priest to be sent to the Red River colony. As well as the presence of Catholic settlers, Macdonell and Selkirk emphasized the Ahundreds of free Canadians wandering about our colony, who have families with Indian Women@ (Macdonell),86 or Athe great number of Canadians, who have established themselves there [Red River], and who lead a wandering life, in the manner of the Savages, with whose women they have formed irregular connections@ (Selkirk).87 In 1817, some Ahabitants de la Rivière Rouge@ petitioned the Roman

84 MacLeod and Morton, Cuthbert Grant, 31 (Doc. #360).

85 Giraud, The Metis, vol. I, 477 (Doc. #357).

86 Miles Macdonell to Evêque de Québec, 4 April 1816, Société Historique de Saint- Boniface (SHSB), Fonds Corporation archépiscopale catholique romaine de Saint-Boniface (FCASB), Série Provencher, pages 1530 - 1534 (Doc. #39).

87 Lord Selkirk to Evêque de Québec, 4 April 1816, SHSB, FCASB, Série Provencher, pages 1535 - 1538 (Doc. #40).

208 28

Catholic Bishop of Québec for a priest. Part of their reasoning was that they, as Afree Canadians@, n=avoient pas assez d=influence pour empêcher que leurs enfans ne fussent pris et forcés d=obéir à ceux qui ont souillé les plaines de ce beau pays du sang de leurs semblables et de leurs concitoyens. Mais que cette influence ne leur auroit assurément pas manqué, et même qu=il n=auroit pas été nécessaire d=en faire usage si la connoissance de leurs devoirs envers Dieu et envers la société eut été plus répandue. Que les enfans dese chrétiens qui sont natifs de ce pays, et qui sont vulgairement connus sous le nom de métifs ou bois brulés, ne montent qu=à trois ou quatre cents hommes dans une étendue de plusieurs cents lieues. Que ces métifs sont presque tous bien disposés et d=un caractère doux et paisible, et n=auroient pas eu part dans les malheureux événements qui ont eu lieu l=année dernière, s=ils n=y avoient pas été poussés par leurs supérieurs. Mais qu=ayant été informés par des personnes mal disposées qu=ils étoient les maitres absolus du sol que c=étoit de leur devoir de chasser les gens qu=on nomme ordinairement les anglois, et ayant reçu des promesses d=être soutenus et récompensés, ils ont cru qu=en les expulsant du pays ils fesoient un acte glorieux et méritoire...88 In this petition, the ACanadians@ expressed concern about their mixed-ancestry children being Aforced to obey@ the Métis of the group who had followed Grant and the others, but the undercurrent of their message was that their mixed-ancestry children were becoming part of a culture different from that of their fathers. Religious training, the Canadians proposed, might draw them back closer to their French-Canadian roots. However, the Canadian petitioners also emphasized that nearly all of the three to four hundred Métis men who formed the group of which their children were becoming a part, spread over a territory of several hundred leagues, were well- disposed toward Europeans and peaceful, only becoming violent when they were told it was their duty to chase the English from their lands.

88 Petition of the residents of Red River Colony, J. Bte. Marsellois and others, as reprinted in Documents, Nute, ed., 14 - 17 (English translation attached) (Doc. #42); also SHSB, FCASB, Série Provencher, pages 1540 - 1544 (Doc. #42).

209 29

As well as these Afree Canadians@, the Abois brûlés@ themselves wished to have a priest,89 and they responded quickly and favourably when the priests arrived. In July of 1818, Fathers Dumoulin and Provencher arrived at Red River, and while tending crops, building their chapel and their house, learning the Indian languages and preparing to travel down to Pembina with the rest of the settlement, baptized 73 Apetits Bois-brûlé[email protected]

When Father Dumoulin went with the hunters and Red River settlers to Pembina, his mission developed very rapidly. He reported, in early January 1819, that I have many more people here than the Vicar-General [Provencher] has at The Forks; the people all come here because the buffaloes are near. On Christmas Day I held a meeting of all the freemen and hunters who have decided to settle at Pembina. I proposed to them the building of a chapel sixty feet by thirty and a presbytery forty by twenty-seven...I...saw that they prefer to pay for having it done, since they are certain to earn much more on the hunt...Immediately they all showed themselves to be as generous...as they were last fall...I think that this subscription will come to nearly ,350; already it amounts to $1,229, and that from scarcely forty men (heads of families)...

I have nearly three hundred people at Pembina, to whom I preach...I have baptized fifty-two persons at Pembina...There would be many more to baptize and marry, but they are all away just now, and extremely busy with the hunt, because the animals remained farther away than usual...

Mr. Edge maintains the school at Pembina; he has already had sixty pupils, and would have nearly eighty if the buffaloes would come nearer. The little bois brûlés are usually extremely intelligent...

...To tell the truth, these hunters are at the present time the richest ones of the colony; they earn a considerable amount hunting the buffalo, which they sell for

89 Sam. Gale jr. to J. O. Plessis, Evêque de Québec, 29 January 1818, SHSB, FCASB, Série Provencher, pages 1545 - 1547 (Doc. #54); Gale to Coltman, 1 January 1818, in Documents, Nute, ed., 19 - 20 (Doc. #53).

90 Dumoulin to Lady Selkirk, 27 August 1818 (Doc. #58), (English translation attached); Dumoulin to Bishop Plessis, 14 August, 1818 (Doc. #56), (English translation attached), as reprinted in Documents, Nute, ed., 142 - 144 (Doc. #58), 134 - 137 (Doc. #56).

210 30

six or more dollars at the fort...91

Dumoulin described a community of dedicated hunters, intending to Asettle@ at Pembina and pay for amenities there such as a church, but who had to spend a significant amount of time away from the settlement with their wives and children to follow the buffalo herds. For this, they were recompensed handsomely and could afford an average of thirty dollars from each family, in currency, to have a church built for them. Their own time and labour in the buffalo hunt was too valuable for them to do the work themselves.

The Red River settlers and freemen settled into a routine that took them down to Pembina from about September through May to hunt or to be closer to incoming supplies from the hunters, and then back to the Forks in May to Ado their little [email protected] In November of 1819 Bishop Provencher wrote to one of his colleagues in Québec describing the difficulties at St. Boniface (the Forks) and Pembina: We are trying to instruct the people with whom we are living. They seem to be profiting fairly well...We...maintain a school but it progresses but slowly, the children being too irregular. They come, from the most part, from parents who live entirely by the hunt, and are thus obliged to follow them out on the prairies...93

In addition, to the dismay of the priests, the growing settlement at Pembina was determined in 1818 to lie within the United States. AWe shall not abandon Pembina@, wrote Provencher in1819, Athere are too many people there for it to be [email protected] By 1821, Father Dumoulin reported to a relative of Lord Selkirk (who had died in 1820) that the Pembina mission, composed of a

91 Dumoulin to J. O. Plessis, Bishop of Québec, 5 January 1819, as reprinted in Documents, Nute, ed., 176 - 180 (translation) (Doc. #65).

92 Provencher to Bishop Panet, 24 November 1819, as reprinted in Documents, Nute, ed., 254 - 255 (Doc. #74).

93 Ibid., 255 (translation) (Doc. #74).

94 Provencher to Lady Selkirk, 29 July 1819, as reprinted in Documents, Nute, ed., 251 (translation) (Doc. #73), also Provencher to Bishop Plessis, 27 July 1819, in ibid., 240 (Doc. #72).

211 31 considerable part of the Red River colony@, served 500 men, women and children. He noted that Aa large number have houses and have made gardens in so far as they are able@. There was a church and Aa regular [email protected] The number of baptisms and marriages at Pembina was twice that of St. Boniface.96 In writing of his work at Pembina, the priest Sauvez described his Adaily occupations among the bois brûlés@, noted that they had plenty of buffalo meat and fish, and that the Indians were not likely to attack The Forks or Pembina because Athey fear the bois brûlé[email protected]

In 1821, the North West Company and the Hudson=s Bay Company merged. Over the next few years, many employees of both companies lost their jobs, and many posts were closed. Although some former employees went to Canada and the British Isles, many either stayed in the region in which they had served, or found their way to Red River. Cuthbert Grant, despite his participation in the events of 1814 - 1816 and his career as a vigorous North West Company employee, impressed the equally vigorous young Hudson=s Bay Company governor, George Simpson, and for a short time Simpson hired him as a clerk at Fort Garry, noting he was Aextremely useful in Red River on account of his influence with the Half [email protected] However, many old settlers in the colony resented Grant=s apparent reward from the HBC, and in 1824 he retired from the Company=s service.99 In the meantime, the executors of Simpson=s estate had prevailed on the priests to move the residents of Pembina to north of the 49th parallel. The executors wished them to settle at the Forks,100 but the priests protested that Ait is not likely that they would come here

95 Dumoulin to Andrew Colvile, 29 March 1821, as reprinted in Documents, Nute, ed., 290 - 291 (translation) (Doc. #80).

96 Dumoulin to Bishop Plessis, 25 May 1821, as reprinted in Documents, Nute, ed., 301 (Doc. #82).

97 Sauvez to Raimbault, 28 May 1821, as reprinted in Documents, Nute, ed., 303 - 308 (Doc. #83).

98 MacLeod and Morton, Cuthbert Grant, 78 - 84 (Doc. #360).

99 MacLeod and Morton, Cuthbert Grant, 85 (Doc. #360).

100 See Halkett to Bishop Plessis, 15 March 1822, SHSB, FCASB, Série Provencher, pages 1621 - 1623 (Doc. #86); also reprinted in Documents, Nute, ed., 339 - 340 (Doc. #86).

212 32 only to die of hunger@, as the harvest was insufficient to feed everyone at the settlement. They proposed moving the Pembina people to Lake Manitoba, which Aaffords fishing and hunting, which suit bois brûlés better than the [email protected] But, in July of 1823, Provencher wrote bitterly that AMr. Halkett who moved heaven and earth to destroy Pembina neglected to tell the Governor what to do with these people. We moved nearly all of them this spring and they are at the Forks. They are camping along the river.@102

In early 1824, Simpson found a way to both retain Grant=s influence and deal with the displaced Pembina bois brûlés. At the end of May, 1824, Simpson reported to London headquarters that I have made it my business to receive Grant=s attachment and good offices...and by management I have got him to retire from the Service, and turn Settler...He is regularly married to a half-breed Daughter of McGillis (who is a settler with from ,2,000 to ,3,000) and related to or connected with the principal Freemen and half- breeds who look up to him as their Chief or great man. As I formerly remarked he this spring becomes Settler and has got a grant of Land on the White Horse Plain, about Twelve miles above this place [Fort Garry] on the Assiniboine where he is joined by McGillis, Poltra, Bolinot, Inkster...and about 80 or 100 families of half- Breeds...103

In the same letter, Simpson described Athe Freemen and half breed population...now getting very formidable in point of numbers and live entirely by the chase, the produce of their Hunts Buffalo Meat, has hitherto met a ready sale in the [email protected]

Simpson hoped to sedentarize the Ahalf-breeds@ and thereby pacify the Sioux and control trade: The Half-breed population is by far the most extended about the Settlement and appear to require great good management...hitherto they have lived almost entirely by the chase...but domestic Cattle are now getting so numerous that in the course of two years hence there will be no market for the produce of their hunts, and those

101 Bishop Provencher to Bishop Plessis, 11 August 1822, as reprinted in Documents, Nute, ed., 364 - 365 (Doc. #90).

102 Quoted in MacLeod and Morton, Cuthbert Grant, 86 (Doc. #360, see also Doc. #98).

103 Simpson to A. Colvile, 31 May 1824, Selkirk Papers, page 8244 (Doc. #100).

104 Simpson to Colvile, 31 May 1824, Selkirk Papers, page 8243 (Doc. #100).

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people if not brought gradually from their present vagrant mode of life will then become worse and more destitute than Indians...their notions of pride and independence are such that they will not enter to the service...for these last two years the Sioux have committed several murders in the neighbourhood of Pembina; this in my opinion did not arise from any hostile feeling towards the Whites but in consequence of the intrusion of the Half-breeds on their lands...we consider it highly necessary and proper to withdraw the half-breeds from Pembina and encourage them to adopt a more settled mode of life...105

The Catholic church also approved of this plan, and appointed a priest to the new parish of St. François Xavier in the summer of 1824. Grant was also granted a licence to trade by Simpson from Brandon House, over the territory from Turtle Mountain to the Qu=Appelle River,106 and contracts to transport goods both by water to Norway House and York Factory, and overland by carts from Pembina and Brandon to the Forks settlement. Other Métis traders were licenced to trade near Pembina. Many freemen were employed seasonally by these traders and the boat and cart brigades.107

IV. Hunting and Agriculture on the Red and Assiniboine, 1820s - 1860s

Simpson=s prediction regarding the Colony=s ability to rely on domestic cattle to supply meat turned out to be hopelessly optimistic. The agricultural production of the Red River Settlement was of insufficient quantity, quality and reliability to allow the residents to depend on it completely, much less to supply all the HBC brigades and posts. G. H. Sprenger has compiled a table of partial and complete crop failures in the Red River Settlement between 1813 and 1870, identifying 30 out of 57 years in which crops were destroyed. At most, five to six years would pass without crop failures, and it was not uncommon for crops to fail in consecutive years. The 1820s and the 1860s were the worst decades; almost every year in the 1860s showed major

105 Quoted in MacLeod and Morton, Cuthbert Grant, 87 - 88 (Doc. #360).

106 Report of George Simpson, 25 July 1827, HBCA, D.4/90, pages 29 verso - 30 verso (Doc. #117).

107 MacLeod and Morton, Cuthbert Grant, 94 - 95 (Doc. #360).

214 34 losses.108

To make up the food deficit, the colony relied on imported European food (which was very expensive and could only be imported in limited quantities) and food harvested from the surrounding prairie. Although some residents fished either close to their river lots or at sites such as those on Lakes Manitoba and Winnipeg,109 the principal source of Acountry food@ for the settlement was buffalo meat.110 As well, the Hudson=s Bay Company needed large quantities of pemmican to supply its boat brigades and provide emergency food for its posts.111 These requirements resulted in a strong and consistent market for buffalo meat at Red River. The Hudson=s Bay Company took all that the hunters could sell, especially from the summer hunt. Many of the hunters would then leave for a fall hunt, the primary purpose of which was to

108 G. H. Sprenger, AThe Métis Nation: Buffalo Hunting versus Agriculture in the Red River Settlement, 1810 - 1870", in Native People, Native Lands: Canadian Indians, Inuit and Metis, B. A. Cox, ed. (Ottawa: Carleton University Press, 1987, Carleton Library Series no. 142), 124 - 125 (Doc. #374).

109 See Fort Garry post journal, entry for 4 August 1824, HBCA, B.235/a/6, page 8 (Doc. #103); Provencher to Msg. J. C. Prince, 16 June 1847, SHSB, FCASB, Série Provencher, p. 3837 (Doc. #172); Alexander Ross, The Red River Settlement: Its Rise, Progress and Present State, with some account of the Native Races and its General History to the Present Day (London: Smith, Elder and Co., 1856; reprinted by M. G. Hurtig Ltd., Edmonton, 1972), 79, 85 (Doc. #228).

110 See J. N. Provencher to Bishop of Saldae, 23 May 1820, as reprinted in Nute, ed., Documents, 267, 268 (Doc. #77); D. Mackenzie to Governor et al, 8 December 1826, HBCA, D.4/120, pages 31 - 31 verso (Doc. #109); Christie to Simpson, 30 November 1847, HBCA, D.5/20, p. 557 verso (Doc. #174); Mestre to H. H., 11 June 1861, SHSB, FCASB, Série Taché, p. T-53483 (Doc. #243); R. Mackenzie to Simpson, 11 August 1852, HBCA, D.5/34, page 225 - 226 (Doc. #224); Ross, Red River, 113, 273 (Doc. #228); Giraud, Métis, vol. II, 133 (Doc. #358). In 1846, Simpson estimated that Athe agricultural population, however, does not exceed half of the whole settlement, the other portion being dependent on the chase, the fisheries, + on their more industrious neighbors for the means of subsistence@ (Simpson to Governor et al, 23 July 1846, HBCA, D.4/68, page 139/263) (Doc. #168).

111 See Giraud, Métis, vol. II, 133 (Doc. #358); also J. Swanston to Simpson, 9 December 1856, HBCA, D.5/42, pages 441 and 441 verso (Doc. #234); W. Mactavish to W. Smith, 11 August 1868, HBCA, A.12/45, page 88 verso (Doc. #255).

215 35 provide meat for their families for the winter. Echoing Father Dumoulin=s observations in 1819, Alexander Ross calculated in 1852 that Aduring the years 1839, 40, and 41, the Company expended ,5,000 on the purchase of plain provisions, of which the hunters got last year the sum of ,1,200, being rather more money than all the agricultural class obtained for their produce in the same year.@112

Despite the evidently lucrative nature of the hunting enterprise, contemporary observers were relentlessly critical of the hunters (almost all of whom were Métis) and their way of living. Contemporary writers, and later historians, held a strong bias in favour of sedentary agricultural settlement, no matter how risky and poorly-remunerated this life pattern was at Red River. The hunting life, as Ross pointed out, directly interfered with agricultural life: After the expedition starts, there is not a man-servant or maid-servant to be found in the colony. At any season but seed time and harvest time, the settlement is literally swarming with idlers; but at these urgent periods, money cannot procure them. This alone is most injurious to the agricultural class...113

Although Ross admitted that, during the hunt, Alate and early every one is at work...the prairie is a place of activity, industry, and perseverance@,114 when the hunters were in the settlement, they appeared to be Aidle@, and their houses and gardens generally appeared more unkempt to Europeans than those of the settlers who stayed on their lots during the summer.115 Although Ross noted that a few individuals of solely European descent and Indian people joined the Red River hunt from year to year, 116 he identified hunting as a distinctively Ahalf-breed@ activity: ...we may here bestow a few words upon the frequenters of the plains, commonly

112 Ross, Red River, 273 (Doc. #228).

113 Ross, Red River, 243 (Doc. #228).

114 Ross, Red River, 88 (Doc. #228).

115 See John Palliser, AJournal of Expedition, 1857 - 1858", as reprinted in The Papers of the Palliser Expedition, Irene Spry, ed., 104 (Doc. #235); Ross, Red River, 122 - 127, 201 (Doc. #228).

116 Ross, Red River, 243 (Doc. #228).

216 36

called the half-breeds of Red River...not a tenth part of their number really belong to Red River, although they have from choice made it the land of their adoption. Hither, in fact, have flocked the half-breeds from all quarters east of the rocky mountain ridge, making the colony their great rendezvous and nursing place; while their restless habits lead them from place to place, from camp to camp, from the colony to the plains, and from the plains to the colony, like wandering Arabs, or the more restless Mamelukes, wherever hunting or fishing hold out to them a precarious subsistence. To do them justice, however, we ought to remark that, like other communities, they are distinguishable into several classes. Some are respectable in their habits; others as improvident as the savages themselves: but the chief dependence of all is upon buffalo hunting or fishing. The boundless prairies, therefore, have attractions for them, which the settled habits and domestic comforts of the industrious farmer can never hope to rival in their estimation...117

Although all the residents of European descent in the colony had arrived from thousands of miles away within forty years of Ross= writing, Ross did not consider the Ahalf-breeds@ of the plains as Abelonging@ to Red River because of their Awandering@ and Arestless@ lives. Ross identified the plains hunters, with their capital assets of carts, horses and other equipment, as the superior class of Ahalf-breeds@, while other Aclasses@ had to depend more on fishing, or on the generosity of those who were willing to lend animals and equipment.118

Other observers assessed the Métis in similar terms. Father Mestre described his approximately 900 parishioners at St.-Norbert in 1861: ...il n=y en a encore qu=un nombre fort restreint qui puissent vivre du produit de leurs terres: ils sont accoutumés, pour la plupart, à aller deux et même trois fois par an à a chasse au buffalos, triste habitude qui favorise leur paresse naturelle sans les faire sortir de la pauvreté extrême qui accompagne toujours leur fortune d=un jour. Enfin il y en a même quelques-uns, les paresseux par excellence, qui mènent une vie toute nomade, allant à toutes les chasses de l=été et de l=autonne et passent l=hiver de côté et e=autre, dans les prairies ou dans les bois: ce sont les hivernants. Nous ne les voyons guère qu=à la fin de mai ou au commencement de juin, durant les quelques jours qu=ils passent dans la colonie, pour vendre leurs fourrures et faire leurs préparatifs de chasses...119

117 Ross, Red River, 83 - 84 (Doc. #228).

118 Ross, Red River, 84 - 86 (Doc. #228).

119 Mestre to H. H., 11 June 1861, SHSB, FCASB, Série Taché, pages T-53463 - T- 53464 (Doc. #243).

217 37

Viscount Milton and W. B. Cheadle, British travellers who went through Red River in 1862, wrote of the French half-breeds..the most unreliable and unprofitable members of society...they have an utter distaste for all useful labour...

But as hunters, guides, and voyageurs they are unequalled...

The two great events of the year at Red River are the Spring and Fall Hunt. The buffalo still forms one of the principal sources from which provisions are obtained. Pemmican and dried meat, like bacon with us, are staple articles of food in every establishment. At these seasons the whole able-bodied half-breed population set out for the plains in a body, with their carts. Many of the farmers who do not go themselves engage half-breeds to hunt for them...120

Archbishop Taché, in 1868, wrote of his parishioners that The greatest social crime of our French Half-breeds is that they are hunters. All cannot be accused of this fault, if we must thus designate a natural taste, for amongst them there are some who have never done anything else than cultivate their land. However this may be, it is certain that their life of adventure is very prejudicial to our population. Fully sensible of the fearful crisis through which we must pass when buffalo hunting fails, I cannot but hope for the cessation of these hunting excursions, which, by their natural, easy and somewhat remunerative allurements, withdraw a great number of our people from their homes. Born very often on the prairies, brought up in distant and adventurous excursions, horsemen and ready marksmen from their very infancy, it is not very surprising that the Half- breeds are passionately fond of hunting, and prefer it to the quiet, regular and monotonous life of the farmer...

I know Half-breeds, excellent farmers and upright men, at Red River, whose brothers, brought up in the interior of the country, are only hunters differing little from Indians of the lowest stamp. The social condition of a certain number of the English Half-breeds, similarly situated to our French Half-breeds, is in no way superior to theirs...

Many of the English Half-breeds, being sons of rich parents, have naturally been well educated, and have received some means which, of course, has helped them in

120 Viscount Milton and W. B. Cheadle, The North-West Passage by Land. (London: Cassell, Petter and Galpin, 1865; reprinted by Coles Publishing Company, Toronto, 1970), 44 - 45 (Doc. #251).

218 38

not trusting entirely to hunting for their livelihood...121

These writers referred to three different hunts: the spring/summer hunt, for prepared buffalo meat for sale; the fall hunt, for winter provisions (primarily buffalo meat) mostly intended for home use, and a winter hunt for both food and furs. The fall hunt, for some families, could stretch well into the winter if buffalo were scarce or far away, and the winter hunt could become almost a year-round life, with only occasional visits to Red River.122 The fall and winter hunts were smaller in scale than the summer hunt, for reasons described by Father M. Belcourt in 1845: Une partie des métis, qui n=ont point les moyens d=hiverner dans la colonie, se dispersent de côté a d=autre, comptant pour subsister, pendant la saison rigoreuse, sur la chasse de la biche, de l=orignal et de l=ours; d=autres, espérant gagner davantage à la chasse des animaux à pelleterie qu=à celle du bison, survent pour cet object le course des rivières et les bords des lacs: de sorte qu=un tiers des hommes seulement forme le partie de la chasse d=autonmne...123

In 1845, however, the summer provisions hunt had been a failure, and Belcourt noted that preparations for the fall hunt had taken place all across the colony from St. Boniface to White Horse Prairie.

The winter fur hunters, moving through the woods and streams frequented by fur-bearing animals, did not travel with the animals, carts and equipment of the plains bison hunters. In 1862, Viscount Milton and Cheadle observed that Carts cannot travel in the deep snow, and everything has to be carried on dog- sleighs. Every pound of weight is a consideration...In the woods the hunter must

121 A. Taché, Sketch of the North-West of America (translation by D. R. Cameron) (Montréal: John Lovell, 1870), 106 (Doc. #254).

122 See also H. Y. Hind, Narrative of the Canadian Red River Exploring Expedition of 1857 and of the Assinniboine and Saskatchewan Exploring Expedition of 1858 (London: Longman, Green, Longman, and Roberts, 1860; reprinted by Greenwood Press, New York, 1969), 181 (Doc. #240).

123 Belcourt to C. F. Cazeau, 25 November 1845, SHSB, FCASB, Série Provencher, page P-3185 (Doc. #160); also reprinted in U. S. House of Representatives Executive Document no. 51 (First Session), p. 44 (Doc. #160).

219 39

carry all his baggage and provisions on his back.

...The hunter and trapper lives by the feathered game which he kills, rather than by the larger animals, which are only occasionally met with...124

The buffalo hunts, however, were so spectacular in scale and organization that several travellers and residents wrote of them. Ross, Hind, and Belcourt described common features: the election of a hunt captain and subcaptains, the careful deployment of carts and animals both in travel and in camp, the tight discipline of the camp rules and the hunt itself, the hard work of the women in preparing the meat, and the excitement, daring, skill and spectacle of the buffalo-running.125

Through the 1840s,126 and especially after Afree trade@ took hold in the 1850s, a new and highly lucrative aspect of the buffalo harvest began to supersede the pemmican and meat trade. Robes made of the tanned hides of buffalo with their luxurious winter wool coats left on became increasingly popular in the United States, Canada and Britain, and properly prepared hides taken in winter commanded premium prices all the way up the supply chain. This demand drew increasing numbers of Métis from Red River to the plains in the winter, and as the buffalo were further south and west at that time of year, they spent longer periods away from the settlement. Robe manufacture required at least as much female labour as the meat trade, and therefore entire families accompanied the male hunters, as they had for the meat, subsistence and fur hunts.127 Although some robes were sold to the Hudson=s Bay Company, the great majority were sold south of the border, especially at St. Paul=s, Minnesota. In 1866, 23,680 robes were brought through

124 Milton and Cheadle, The North-West Passage, 48- 49 (Doc. #251).

125 See Belcourt to C. F. Cazeau, 25 November 1845 (Doc. #160); Hind, Narrative, 179 - 181 (Doc. #240); H. Y. Hind, ARed River Settlement and the Half-Breed Buffalo Hunters@, in The Canadian Merchants= Magazine and Commercial Review (Toronto: Wm. Weir & Co.), Vol. III, no. 1 (April 1858), 14 - 16 (Doc. #237); Ross, Red River, 245 - 272 (Doc. #228).

126 In 1843, HBC traders were given instructions to trade for as many robes Aas our means of transport to the Coast may admit@ (G. Simpson, report dated 21 June 1843, HBCA, D.4/62, page 11) (Doc. #153).

127 Ens, Homeland to Hinterland, 74 - 92 (Doc. #377).

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Pembina from the Red River settlement area,128 but at this period as many as 1,500 carts of the Red River Métis at a time went directly down to St. Paul to sell their robes, meat, fur and leather goods.129 They travelled along the cart roads that were already Awell known and travelled@ when the American Major Woods took them to get from Fort Snelling, Minnesota to Pembina in 1849.130

The location of the hunts of course varied with the location of the animals hunted, but common patterns of travel were apparent. The routes along the Red River from the Forks to Pembina and south, as described by Henry in the early 1800s and followed by the early settlers, continued to be in use. In the late fall of 1828, HBC employees surveying in the Turtle Mountain area came across encampments of Afreemen@ on the south-east edge of Turtle Mountain and about a day=s travel away in the Hair or Pembina hills. The Afreemen@ at Turtle Mountain had only killed a few buffalo, but had some muskrats.131 Ross described an 1840 summer hunt that started moving on June 15, stopped to regroup and equip at Fort Garry, and then regrouped again at Pembina, Athe great rendez-vous on such occasions@. There were 1,630 men, women and children in this hunting party, and over 1,200 carts. They travelled down to the Sheyenne River, and then further another 100 miles to where they first saw buffalo. They went further south to the Missouri Couteau, and then camped on the banks of the Missouri close to Fort Union. After doing some trading at Fort Union, the group struck off west, and eventually north again, crossing the Sheyenne River.132 At the Côté à Pique south of Pembina, through which they had passed on the way out, Aseveral small bands forked off under various pretences@,

128 AThe Red River Trade@, The Nor=Wester, 31 [13] January 1866, p. 1 (Doc. #252).

129 Ens, Homeland to Hinterland, 80 (Doc. #377).

130 Major S. Woods to General R. Jones, 10 November 1849, in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, p. 10 (Doc. #194).

131 Hudson=s Bay Company Fort Garry post journal, HBCA, B.235/a/10, page 29 and 29 verso (Doc. #387).

132 Ross, Red River, 245 - 271 (Doc. #228).

221 41

the main party, however, kept on its course till it reached Pembina. Here all the functions of the men in office ceased, the camp broke up, and the different parties, as they got ready, threaded their way to the settlement, where they arrived on the 17th of August.133

Belcourt, travelling with the 1845 fall hunt, noted that parties based in St. Boniface and White Horse Prairie departed until he left with the last one on September 9. The rendezvous point for all the parties was on the Pembina River, about a day=s march upstream from the Red, although the ARed River@ hunters did not join Belcourt=s party there. In deciding where to go, Anous saviones qu=un certain nombre de métis avaient établi leurs quartiers d=hiver au bout de la Montagne à la Tortue [Turtle Mountain] et sur la Rivière à la Souris@,134 therefore Belcourt=s group struck off in a southerly direction towards Devil=s Lake, the Sheyenne River, Lac du Bois-Blanc, the height of land known as the Grand Coteau, and ended up in St. Paul, Minnesota.135 In 1848, the spring hunt from the Red River area included over 1200 carts, which Awent in a body@ to an area south of Devil=s [email protected] In 1849, an expedition led by Major Woods on behalf of the U. S. government travelled from Fort Snelling, along the west bank of the Mississippi River, past Lake David, across the Crow River, past White Bear Lake and Elbow Lake, to the Red River and north to Pembina, along a Aroute...well known and travelled every summer by large >trains= of carts from the Red river [email protected] About four or five miles north of Elbow Lake, the expedition met the advance of the Red river >train of carts= about twenty-rive in number, and under the charge of a man from Selkirk, or the English settlement. They were loaded

133 Ross, Red River, 272 (Doc. #2280.

134 Belcourt to C. F. Cazeau, 25 November 1845, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, page 44 (Doc. #160).

135 Belcourt to C. F. Cazeau, 25 November 1845, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51 (Doc. #160).

136 Henry M. Rice to J. E. Fletcher, 30 November 1848, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, page 8 (Doc. #181).

137 Major S. Woods to General R. Jones, 10 November 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, pages 10 - 18 (Doc. #194).

222 42

with peltries and >pemmican=, and on their way to St. Pauls Minnesota Territory. These people buy goods at St. Pauls and Galena and take them back to Pembina, when they await an opportunity and smuggle them into the settlements on the English side.138

Shortly afterwards, the expedition met the cart train of Norman Kittson, the American trader at Pembina, who had about sixty-five carts full of furs.139

Hind, based on his 1856 visit to the North West, recorded that About the 15th of June they start for their summer hunt of the buffalo. There are now two distinct bands of buffalo hunters, one being those of Red River, the other of the White Horse Plain, on the Assinniboine. Formerly these bands were united, but, owing to a difference which sprung up between them, they now maintain a separate organisation, and proceed to different hunting-grounds. The Red River hunters go to the Coteau de Missouri, and even as far as the Yellow Stone River; the White Horse Plain settlers generally hunt west of the Souris River, and between the branches of the Saskatchewan, but also over the same grounds as their Red River brethren.140

Palliser, travelling along the north-east side of Turtle Mountain in the summer of 1857, noted the thick woods and Ainnumerable lakes, which form the breeding-places of many kind of water fowl@, and shot at an elk as he was passing. He wrote that Athis hill, however, had once a great name as a hunting ground, and abounded with moose, wapite [elk], and bears, but as the buffalo resort here every winter, and bring in their trail numerous camps of Indians and companies of half-breed hunters, the game has been either exterminated or driven [email protected] Palliser observed that his party saw no buffalo until within 20 miles (east) of the Aelbow of the Saskatchewan@, and that within Athe districts of Red River, Pembina, and San Joseph, we killed nothing but ducks,

138 Major S. Woods to General R. Jones, 10 November 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, page 14 (Doc. #194).

139 Major S. Woods to General R. Jones, 10 November 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, page 14 (Doc. #194).

140 Hind, Narrative, 179 (Doc. #240).

141 Palliser, AJournal of Expedition@, as reprinted in Papers, Spry, ed., 114 - 115 (Doc. #235).

223 43 geese, prairie hens, and [email protected]

Although the range of the buffalo was slightly different every year, the days of hunting the herds just outside Brandon were gone. The herds now stayed more to the south and west, necessitating longer hunting trips from Red River. In May of 1859, the chief HBC trader for the Swan River district, which included the south end of Lake Manitoba, the Qu=Appelle Lakes, Fort Ellice, the Touchwood Hills, and Fort Pelly, reported that Athe district is completely overrun by free traders from the Red River settlement, who come up in the fall and pass the winter along the frontier of the district, dependant entirely upon Buffalo for their [email protected] Isaac Cowie, a Hudson=s Bay Company employee recalling his 1867 trip between Red River and Fort Ellice, estimated that by 1830 Brandon House Ahad become too far from the general habitat of the buffalo for the convenience of the hunters, so had Fort Ellice become to a large extent already in 1867...The buffalo hunters were provided for by trading parties sent out after them in the summer, and wintering at Turtle or Moose Mountain, near the herds.@144 En route to Fort Ellice, Cowie followed Athe well-marked wheel ruts of the cart track which branch off the broader road which led the buffalo hunters to the Turtle and Moose [email protected] Cart tracks from the edge of St. François Xavier to the AMissouri River@, a AGreat Highway@ along the Red River between the Forks and Pembina, and other trails are depicted on survey maps of the early 1870s.146 A AHalf

142 Palliser, AJournal of Expedition@, as reprinted in Papers, Spry, ed., 153 (Doc. #235).

143 W. J. Christie to Palliser, 17 May 1859, as reprinted in Papers, Spry, ed., 527 (Doc. #239). Simpson had reported that in 1843 that American traders were starting to make inroads in the trade from Fort Pelly among the AIndians and half breed hunters@ that had previously frequented the post (Simpson to Governor and Committee of Hudson=s Bay Company, 21 June 1843, pages 10 verso and 11, Doc. #153).

144 Isaac Cowie, The Company of Adventurers: A Narrative of Seven Years in the Service of the Hudson=s Bay Company during 1867 - 1874 on the Great Buffalo Plains (Toronto: William Briggs, 1913), 187 (Doc. #354). Peter Fidler, in early 1816, had written Awe can see swarms of [buffalo] from the Window@ of the fort at Brandon House (Brandon House post journal, entry for 9 February 1816, HBCA, B.22/a/19, page 17) (Doc. #33).

145 Cowie, Company, 181 (Doc. #354).

146 AMap of the Province of Manitoba Shewing the Surveys effected in 1871",

224 44

Breed Road to Woody Mountain@ is shown on a reconnaissance map prepared by the U. S. Boundary Commission in approximately 1873, passing to the south of Turtle Mountain.147

By mid-century, the large caravans of Métis hunters had attracted the attention of the U. S. Government. The Indian Agent on the Upper Missouri had reported to his superiors of the Aunlawful and injurious interference of British subjects...and the great destruction of the game, by persons from the British side of the [email protected] The American trader at Pembina, Norman Kittson, estimated that 20,000 buffalo per year were being killed on the American side by Ahalf breeds from the British side of the line...and that one-third of this population [of Red River] subsist by hunting buffalo on the American side of the [email protected] Some of the Métis population from Red River moved down to Pembina in the 1840s and 1850s. The missionary Belcourt, who based himself at Pembina, gave several reasons why this was happening: ...the half-breeds have always spoken of Pembina as a spot for which they have a strong predeliction, and regretted the necessity which forced them to leave it. Gradually as the Mississippi settlements have approached towards us...the half- breeds have felt the possibility of procuring the necessaries of life from that quarter as well as from the British side; from that time many of them have returned to the place of their birth, happy, at length, to be able to withdraw themselves from a state of vassalage in which they had been held as long as possible, by a company of monopolists...

...it was decided at Montreal to send a missionary among the Pembina half-breeds; on the other hand, the Congress of the United States have organized the Territory of Minnesota, and have sent troops to examine and, if need be, to protect the settlement at the same point. At this news, the half-breeds leaped with joy, and

Department of Secretary of State, Dominion Lands Office, 1 March 1872, PAM, H5 614.1 bj 1871 (Doc. #270); untitled map of surveys commenced in the summer of 1871, PAM, H7 614.1 gbbd 1874 (Doc. #298).

147 United States Boundary Commission Reconnaissance Map, n. d., PAM, H3 602.2 fab 187(?), Sheet V (Doc. #385).

148 William Medill to Thomas Ewing, 3 April 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 31, page 3 (Doc. #183).

149 J. E. Fletcher to William Medill, 12 February 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 31, page 5 (Doc. #182).

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more than a thousand have caused their names to be inscribed on the list of the settlers at Pembina...

The half-breeds are rather hunters than agriculturalists, and this is owing to their being unable to sell the produce of their farms, while on the other hand, they find it easy to sell the articles obtained in their hunts; still a large number apply themselves to both farming and hunting with much success...

...at Pembina, the cold is not felt so severely, nor does the frost ever injure the early plants...

The half-breed hunters, as well from necessity as from inclination, do not feel that they have a right to pursue this avocation on American soil, in order to carry the products of their chase to the British side, which they have been obliged to do heretofore. Apart from this consideration, Pembina may be looked upon as the gate to the prairies where the hunts are made, and where the bison abounds. The fishery is also very productive... 150

J. N. Provencher, the Bishop at St. Boniface, took a less optimistic view of this population movement. In 1850, noting that Belcourt was establishing a new settlement (to be named St. Joseph) to the west of Pembina, he wrote that Les Américains ne viendront pas, il paraît, acheter ce pays. C=est l=espérance de la vente des terres qui a attiré là quelques nombres de la population de St. Boniface et de al prairie du Cheval blanc. Ils sont plus pauvres que jamais, ayant tout vendu pour se rendre à cette espèce de Californie qui ne leur donne rien en réalité ni en espérance. Il est un peu douteux que cet établissement prospère.151

150 Belcourt to Major Wood, 20 August 1849, as reprinted in U. S. House of Representatives, 31st Congress, 1st Session, Executive Document no. 51, 41 - 42 (Doc. #192).

151 J. N. Provencher to [?], 11 July 1850, SHSB, FCASB, Série Provencher, page P-2141 (Doc. #201). Belcourt was establishing a new settlement along the Pembina River west of Pembina because of the vulnerability of the Pembina site to flooding. Palliser, in passing through the area in the summer of 1857, recorded that there was still an American Afort@ (trading post) at Pembina, but that the village had dwindled to Aan insignificant collection of wooden huts@ (Palliser, AJournal@, as reprinted in Spry, ed., Papers, 98) (Doc. #235). The American Treaty party arrived in the summer of 1851, but allocated only a one-time payment to some of the Métis, instead of the much larger sum paid over 20 years that was distributed to the Chippewas. See Belcourt to C. F. Cazeau, 21 September 1851, SHSB, FCASB, Série Provencher, page P-3514 (Doc. #216); also G. S. Camp, AThe Turtle Mountain Plains-Chippewas and Metis, 1797 - 1935", Ph. D. thesis, University of New Mexico (Alberquerque), 1987, 86 (Doc. #375).

226 46

However, the Minnesota Territorial Census for the year 1850 shows that a significant proportion of the Pembina District was from Red River, and that most of them were identified as [email protected] Many Red River Métis became part of the U. S. Turtle Mountain Band of Chippewas, making up over 90 per cent of the Band.153

Although hunting was consistently identified as the predominant activity of the Métis at Red River, agriculture did play a role in household economies. Gerhard Ens has calculated, based on census data and parish records, that each Métis family occupying a lot in the St. François Xavier parish cultivated an average of 4.62 acres in 1835, slightly more than the Métis families in the primary English-speaking parish of St. Andrew=s. European family heads cultivated about twice as many acres at this time, on average.154 Cattle, horses and pigs were raised, and hay had to be cut for these animals.155 Similar calculations for 1856 and 1870 show cultivated lands in St. François Xavier dropping slightly from 1835, to about 4 acres per Métis family.156 Survey plans drawn up in the mid-1870s show the modest proportion of land under cultivation in St. François Xavier and St. Norbert parishes, despite the long years of occupation of many of the lots.157

152 Minnesota Territorial Census, 1850, as edited by P. C. Harpole and M. D. Nagle (St. Paul: Minnesota Historical Society, 1972) (Doc. #206).

153 Census of Turtle Mountain band of Chippewa Indians, 1 October 1892, as published in U. S. Bureau of Indian Affairs Annual Report (Doc. #350); Camp, ATurtle Mountain Plains@, 126, 168, 174 (Doc. #375); Patrick Gourneau (Aun nish e naubay), AHistory of the Turtle Mountain Band of Chippewa Indians@ (Turtle Mountain Band of Chippewa Indians: seventh edition, June 1980), 14 (Doc. #363).

154 Ens, Homeland to Hinterland, 36 (Doc. #377).

155 Ens, Homeland to Hinterland, 38 (Doc. #377)

156 Ens, Homeland to Hinterland, 85 (Doc. #377).

157 George McPhillips, APlan of River Lots in the Parishes of St. Vital and St. Norbert Province of Manitoba@, 1874, PAM H9 614.11 gbbe Series 1 #7 (Doc. #303); George McPhillips, APlan of River Lots in the Parish of St. François Xavier@, 1873, PAM, H9 614.11 gbbe Series 1 #22 (Doc. #294).

227 47

However, this cultivation still represents substantial garden plots and small-scale grain farming, done in the periods between hunting trips or by those who could not travel along with the carts. Although Ross devoted much time to criticizing the Métis hunting life, he also stated in exasperation that Athey are not, properly speaking, farmers, hunters or fishermen; but rather confound the three occupations together, and follow them in turn, as whim or circumstances dictate. They farm to-day, hunt to-morrow, and fish the [email protected] Ross was stating that the Métis, while primarily hunters, drew on a variety of occupations and resources to make their living.

As well as these occupations, Blakiston (with the Palliser Expedition) and Cowie described boat transport from Hudson Bay as a particularly Métis activity at Red River in the late 1850s and 1860s.159

V. The Sayer Trial to the Red River Resistance: Expanding Trade and Expressions of Métis Sovereignty, 1845 - 1870

Although Ross noted that Athe half-breeds@ were Aquiet and orderly@ if Aleft to themselves@,160 his opinion was that the Ahalf-breeds@ cordially detest all the laws and restraints of civilized life, believing all men were born to be free...they are marvellously tenacious of their own original habits. They cherish freedom as they cherish life. The writer in vain rebuked them for this state of things...161

158 Ross, Red River, 193 (Doc. #228).

159 T. W. Blakiston, AReport to Palliser on the Inland Navigation from Hudson Bay@, 3 January 1858, as reprinted in Papers, Spry, ed., 542 - 543 (Doc. #236); Cowie, Company, 137 - 138 (Doc. #354). For an excellent visual summary of these activities: agriculture, hunting, fishing, trading, trapping, and others such as maple sugar collection, see AThe Red River Settlement@, in Historical Atlas of Canada, vol. II: The Land Transformed, 1800 - 1891, R. L. Gentilcore, ed. (Toronto: University of Toronto Press, 1983), plate 18 (Doc. #376)

160 Ross, Red River, 242 (Doc. #228).

161 Ross, Red River, 252 (Doc. #228).

228 48

Cuthbert Grant and some other Métis traders had been granted trading licences by the Hudson=s Bay Company in the 1820s and 1830s, but the Company=s charter stipulated that it was to have a monopoly on trading inside its territory. Ross, writing of the late 1830s, noted that Ain their vagrant mode of life, the half-breeds, frequently crossing and re-crossing the line, had tampered with the Company=s rights, contrary to the regulations of the colony.@162 Periodic disputes broke out between the Company and Métis small traders who had collected furs while out on the fall or winter hunts. In the spring of 1849, the trading issue came to a head with the trial of Guillaume or William Sayer, a French Métis who had been charged with three others with illegally trading furs in Rupert=s Land. This trial took place before an English-Canadian judge, Adam Thom, who had become heartily disliked, especially by the French-speaking people of the colony. A huge crowd of armed Métis surrounded the court. Sayer was convicted, but was discharged without punishment after demonstrating that he believed he had permission to trade from the Company. The crowd interpreted this decision as the Company=s concession that trading restrictions were unenforceable, and shouted ALe commerce est libre! Vive la liberté!@. After this event, Afree trading@ was carried on openly by many Métis and other people of the colony, although American authorities periodically tried to enforce the payment of duties on the extensive cross-border movement of goods.163 This trading has been referred to in the quotations from Woods, the HBC=s Swan River District trader, and Belcourt above. Hind, in 1857, observed that Under the head of merchant-shops, we find no less than fifty-six enumerated in the last census, a heading which, it will be observed, is not represented in the census of 1849. In fact, the class of merchants, including petty traders, has almost sprung into existence during last ten years. They obtain their goods from St. Paul on the Mississippi, and purchase them in exchange for gold or peltries. This trade with the United States is fast growing in importance...

162 Ross, Red River, 237 (Doc. #228).

163 M. Caldwell to Governor and Committee, 2 August 1849, HBCA, A.11/95 (Doc. #191); Ross, Red River, 369 - 386 (Doc. #228); Morton, Manitoba, 73 - 79 (Doc. #362); Pritchett, Red River Valley, 250 - 262 (Doc. #356); Giraud, Métis, vol. II, 232 - 237 (Doc. #358). George Simpson, in a letter to Hudson=s Bay Company headquarters of July 1856, called the HBC=s chartered trading rights a Adead letter@, unenforceable against the opposition of the AHalf breeds@ (Simpson to Berens, 18 July 1856, HBCA, D.4/76a, page 795) (Doc. #232).

229 49

Some of the merchants at Red River import largely from England by the Company=s vessels, and almost any article of common necessity can be procured at the stores...164

Cowie, writing of 1867, noted the volume of goods required for Métis traders operating Aall over the plains west of the Red River, between the Missouri and the Saskatchewan, following the buffalo and buffalo hunters in their migrations@ contributed to the development of Fort Garry as the major supply depot of the North West, superseding York Factory. The goods to stock Fort Garry were increasingly sent via St. Paul, Minnesota, where transport was undertaken by cart brigades.165

Underlying their claims to free trade, the Métis adhered to the idea of their sovereignty and rights, as they had in 1815 - 1816. In 1842, Duncan Finlayson, the commandant of Fort Garry, had reported to HBC Governor Simpson that Athe half-breed part of the population have already had too much of their own way...[they] fancy themselves ill-treated because the company do not pay them for their [email protected] This presumption of ownership may have underlain the practice Ross complained of in 1852: ...the half-breeds are not of the emigrant class; but rather squatters and intruders, who have from time to time dropped off the from the fur-trade, or come in from the Indian camp, and set down among their countrymen on the first vacant lot they find handy, which they make no scruple of calling their own...When the lot is stripped bare, they remove to another, and reduce it to the same condition...Of all those squatters, there is not at this day half a dozen to be found on their original lots...This alone might prove, if proof were necessary, not only the absence of all law, but the weakness or rather indifference of the government which permits the waste of...wood...167

An attempt by the HBC to prohibit the cutting of trees on colonists= land in 1845 was disregarded

164 Hind, Narrative, 188 (Doc. #240).

165 Cowie, Company, 166 - 167 (Doc. #354).

166 D. Finlayson to G. Simpson, August 1842, HBCA, D.5/7; quoted in Giraud, Métis, vol. II, fn. 183, page 587 (Doc. #358).

167 Ross, Red River, 199 (Doc. #228).

230 50 by the Métis, who claimed that the Company was not at liberty to dispose of what belonged to them.168

James Sinclair and other Ahalf-breeds@ submitted a petition to Red River Settlement Governor Christie in August 1845 that defended their right to free trade and hunting, Ahaving...a strong belief that we, as natives of this country and as Half-breeds, have a right to hunt furs in the Hudson=s Bay Company=s territories wherever we think proper and again sell those furs to the highest bidder, likewise having a doubt that natives of this country can be prevented from trading and trafficking with one [email protected] Simpson reported to the HBC=s Montréal office in March 1846 that Athe half-breeds...are led to believe, by those under whose influence they are acting, that the fact of their being natives of the soil gives them an unquestionable right of trading + hunting within the H. B. Territory which cannot be affected by the Company=s [email protected] The outcome of the Sayer case did not end Métis assertions of rights and sovereignty. In June 1856, Simpson reported to the proprietorship of the HBC that, at Red River, To a man, the rising generation of Halfbreeds may be set down as opposed to the Company=s rule, which they consider adverse to their best interests...feeling that the soil, the trade and the Government of the country are their birthrights. These visions we believe, are instilled into their minds not only by the American traders, but by the Clergy of both persuasions, and have led to a state of things which occasions us serious uneasiness as to our capability of maintaining the peace of the country while it paralyses the action of the authorities, who have no hope of carrying out any missions, however necessary for the welfare of the colony, except by so modifying them as to make them profitable to these people...171

In June of 1861, the newspaper The Nor=Wester reported on Aindignation meetings@ held by Athe people of White Horse Plains@ against the Hudson=s Bay Company=s notice to them that they

168 Giraud, Métis, vol. II, 228 (Doc. #358).

169 J. Sinclair, B. Laroque et al to A. Christie, 29 August 1845, HBCA, D.5/15, page 139a (Doc. #156).

170 G. Simpson to A. Barclay, 26 March 1846, HBCA, D.4/67, page 704 (Doc. #161).

171 Simpson to Committee of Hudson=s Bay Company, 26 June 1856, HBCA, D.4/76a, pages 734 verso - 733 (Doc. #231).

231 51 would have to pay for their lands or they would be sold to the first purchaser, in which case all improvements would be forfeited. The news excited very general and deep indignation...They declared they would not pay one cent, and even went the length of offering their protection to all foreigners, or others indisposed to acquiesce in the exactions of the powers that be. The principal reasons urged against compliance...are, that the Company have no right to the land themselves, never having purchased it, and that the Halfbreeds have a very palpable right, being the descendants of the original lords of the soil...172

The Selkirk estate had returned Assiniboia to the Hudson=s Bay Company in 1834. A small advisory Council of Assiniboia had been appointed by the Governor of Assiniboia from 1822 onward. After the transfer back to the Hudson=s Bay Company, a larger council was appointed, composed of individuals such as Bishop Provencher, some Protestant ministers, and settlers who had distinguished themselves in various ways. Cuthbert Grant was the only person of mixed Aboriginal and non-Aboriginal ancestry on the Council, and this lack of representation became a political issue in the 1840s and 1850s. In 1857, five Métis (four of French ancestry and one of English ancestry) were appointed to the Council, but many prominent Métis political leaders, such as Jean-Louis Riel (father of Louis-David), James Sinclair, and James Bird jr. remained outside the Council=s membership.173 By 1865, the effectiveness of the Council had disintegrated to the point that a visiting English nobleman reported to his peers that there was Aan absolute want of government at the Red River [email protected]

A Sheriff of Assiniboia had been appointed in 1816, and two constables and a Justice of the Peace in 1823, but no one in the colony had any professional knowledge of the English common law and statutes that were supposed to apply in Assiniboia. The colony was essentially self- regulating. A General Court was established in 1837, and a Recorder (the first person in the colony with legal training) in 1839. However, this Recorder, Adam Thom, became extremely

172 AIndignation Meetings@, The Nor=Wester (Winnipeg), 15 June 1861 (Doc. #244).

173 Morton, Manitoba, 68 - 70, 74 - 78 (Doc. #362); Ross, Red River, 172 - 181 (Doc. #228); Giraud, Métis, vol. II, 224 - 251 (Doc. #358).

174 Quoted in Morton, Manitoba, 112 (Doc. #362).

232 52 unpopular with almost all the colonists, and the French-speaking and Métis sectors of the population in particular resisted his authority. Thom eventually had to leave the colony in 1850, as even his resignation was insufficient to satisfy the agitation against him.175 As Simpson had observed, the governing institutions of the Colony could not operate without the acquiescence of the Métis majority of the population, even if they were not proportionally represented on its Council. By 1861, A. K. Isbister, a Scottish Métis, reported that it is an interesting fact that the half castes or mixed race, not only far outnumber all the other races in the colony put together, but engross nearly all the more important and intellectual offices B furnishing from their number the sheriff, medical officer, the post-master, all the teachers but one, a fair proportion of the magistrates and one of the electors and proprietors of the only newspaper in the Hudson=s Bay territories...176

175 Morton, Manitoba, 68 - 70, 74 - 78 (Doc. #362); Ross, Red River, 377 - 385 (Doc. #228); Giraud, Métis, vol. II, 224 - 227, 237 - 239 (Doc. #362).

176 Quoted in Morton, Manitoba, 91 (Doc. #362). The ethnic composition of the settlement can be confirmed by a review of the censuses of Red River, Grantown and other nearby sites, some of which are included in the document set attached to this report. A comprehensive demographic analysis, especially of the St. François Xavier and St. Andrew=s parishes, has been undertaken by Gerhard Ens in Homeland to Hinterland.

233 53

The 1860s were years of agricultural failure at Red River. As long as the hunt was successful, the hunters and traders could continue to prosper, but in 1868 a nearly total crop loss combined with failures of the plains hunt and the fisheries to cause widespread distress in all sectors of the population.177 Despite the difficulties in the settlement, new settlers from Ontario were beginning to drift into the area, highlighting the undefined land tenures of many longtime residents, especially among the Métis who had refused to pay for their lands and register titles with the Hudson=s Bay Company.178 In 1869, rumours of the impending sale by the Hudson=s Bay Company of Rupert=s Land to Canada began to circulate in the colony, and in August of 1869 surveyors engaged by the Canadian Government appeared. Although the head of the survey expedition, J. S. Dennis, met with some Métis leaders, including Louis-David Riel, to explain his mission and attempt to give some assurances that Métis lands would be protected, Canada and the Hudson=s Bay Company made no attempt to consult or engage the population of Red River in any discussions on the future of Rupert=s Land. Although not all Métis were convinced of the need to physically resist the advance of the Canadians, surveying came to a stop when a party of Métis led by Riel confronted a group of Dennis= men as they approached the river lots of St. Vital.179 The surveyors were told that the land was Athe property of the French half-breeds, and...they would not allow [it] to be surveyed by the Canadian [email protected] Dennis was acutely aware of the Auneasiness@ of the Métis population regarding the surveys, and he did not attempt to restart

177 W. Mactavish to W. Smith, 11 August 1868, HBCA, A.12/45, page 88 verso (Doc. #255).

178 Morton, Manitoba, 115 - 116 (Doc. #362); G. F. G. Stanley, The Birth of Western Canada: A History of the Riel Rebellions (Toronto: Longmans, Green and Co. Ltd., 1936; reprinted by University of Toronto Press, Toronto, 1963), 55 (Doc. #355).

179 See J. S. Dennis, ARough Diagram based on Hind=s Map, intended to illustrate Report of this date on Township Surveys B Red River Territory@, 12 February 1870, PAM, H3, 619.2, bj 1869D (Doc. #262), for the precise location of the stopping of the surveys. The party had been surveying Abase lines@ to use in later township surveys.

180 J. S. Dennis, AMemorandum of Facts and Circumstances Connected with the Active Opposition of the French Half-Breeds in this Settlement to the Prosecution of Government Surveys@, quoted in Stanley, Birth of Western Canada, 57 (Doc. #355).

234 54 the work or take any action against Riel=s group .181

Only a few days afterward, however, an announcement appeared in the Nor=Wester that Canada had appointed a Lieutenant-Governor of the North West Territory, William McDougall, with a Commission to take effect when the Hudson=s Bay Company transferred its authority to Canada. On October 19, some of the Métis elected a ANational Committee@, with Louis Riel as secretary, to take control of the situation. On October 31, McDougall was turned back from the settlement by an armed party sent by the Committee, and obliged to retire to Pembina. On November 2, the Committee seized Fort Garry. The Governor and his officials had been warned of the seizure and did not resist. Riel and the Committee invited the parishes of Red River and the surrounding area to send delegates to a Convention to discuss the political future of the colony, and on November 16 this Convention met for the first time. On December 1, McDougall, standing just over the border north of Pembina, issued a proclamation announcing the transfer of Rupert=s Land to Canada and his appointment as Lieutenant Governor of the new North West Territory, although he had not received any confirmation that the transfer had taken place (it had not). On December 8, Riel issued a Declaration of the People of Rupert=s Land, in which a Provisional Government was proclaimed: ...a people which has no government is free to adopt one form of government rather than another...

...the sole legitimate authority today in Rupert=s Land and the North-West is the authority accorded provisionally by the people to us their representatives...... we refuse to recognize the authority of Canada which pretends to have the right to come to impose on us a form of government still more contrary to our rights and to our interests than the government to which we have submitted of necessity until now...182

181 Dennis to McDougall, 28 August 1869, quoted in Stanley, Birth of Western Canada, 56 - 57 (Doc. #355).

182 ADeclaration des habitants de la terre du Rupert et du Nord-Ouest@, 8 December 1869, SHSB (Doc. #260); ADeclaration of the Inhabitants of the Rupert=s Land and the North-West@, as reprinted in Alexander Begg=s Red River Journal and other papers relative to the Red River Resistance of 1869 - 1870, W. L. Morton, ed. (Toronto: Champlain Society, 1956), 447 - 450 (Doc. #260).

235 55

While some drilling and marching of ACanadian@ sympathizers and the Provisional Government=s militia took place over the winter, no armed confrontations took place. However, the Provisional Government did arrest several people, including some prominent Métis, who appeared to be opposed to the authority of the Provisional Government. One of these prisoners was an Ontario English-Canadian man named Thomas Scott. Scott was executed following a court-martial on March 4, 1870, setting off a long chain of historical events.

The Provisional Government drew up a AList of Rights@ (the third draft of such a list), and in the third week of March 1870 sent delegates to Ottawa to negotiate. Among the stipulations in the list was that Rupert=s Land and the Territories should not enter Canada Aexcept as a Province@, that French and English be used in the local legislature, the courts, and by the Lieutenant- Governor, and that Aall properties, rights and privileges engaged [enjoyed] by the people of the this Province, up to the date of our entering into Confederation, be respected; and that the arrangement and confirmation of all customs, usages and privileges be left exclusively to the local [email protected] Although the delegates were arrested on their arrival at Ottawa, as a signal of Canada=s displeasure at the execution of Thomas Scott, they were soon released and discussions on the future of Rupert=s Land began. The resulting document, enacted on 12 May 1870 (the AManitoba Act@), included provisions for the creation of a province (to be called Manitoba, at Riel=s suggestion), use of both English and French (including access to schools, a later request put forward by the delegates), a guarantee of land titles, and a land grant of 1,400,000 acres to unmarried children of Ahalf-breed@ families.184 However, the area over which this regime was to apply was dramatically smaller than the delegates= first request, being only a small square of land including the Red River settlements and extending down to the U. S. border. The transfer of Rupert=s Land from the Hudson=s Bay Company to Canada, and the coming into effect of the

183 AThe Third List of Rights, as Drawn by the Executive of the Provisional Government@, as reprinted in Begg=s Journal and other papers, Morton, ed., 515 - 519 (Doc. #263). See also the AFourth >List of Rights=@, as reprinted in Manitoba: The Birth of a Province, W. L. Morton, ed. (Manitoba Record Society Publications, vol. I, 1965, 248 - 250 (Doc. #264).

184 As reprinted in Manitoba: Birth of a Province, Morton, ed., 251 - 259 (Doc. #265).

236 56

Manitoba Act, took place on 15 July 1870.

Although the Resistance episode appeared to be coming to a peaceful end, a Red River Expeditionary Force under Colonel Wolseley, composed mostly of Ontario volunteers enraged by the execution of Scott, was on its way to Red River. The intent of the expedition was unclear to the residents of Red River, including Riel, until they appeared in attack formation outside Fort Garry in late August 1870. Riel and other members of the Provisional Government were forced to flee for their lives into the United States, and Wolseley=s troops and Canadian sympathizers created a reign of terror among Métis people and French speakers that lasted into 1871.185

VI. After 1870: Surveys, Settlement and Métis Persistence

The Manitoba census of 1870 showed that the population of the Red River settlement area was still overwhelmingly Métis and born in Rupert=s Land, despite the arrival of newcomers in the town of Winnipeg and a few outlying areas. Of the Asettled population@ of 12,228, 92 per cent were born in Manitoba or the North West Territories; 5,757 were French Métis, 4,083 were English Metis, and 1,565 were Awhite@. The population of parishes like St. François Xavier and St. Norbert was almost entirely Métis. The census also shows some movement from those parishes, or AWhite Horse Plain@, to outlying areas like White Mud River, Poplar Point, Lake Manitoba and St. Paul mission.186

In the 1870s and 1880s, many Métis moved away from the old parishes of Red River into the United States and present-day Saskatchewan and Alberta. The economic pull of the buffalo which were then ranging far from Red River; the hostility of new immigrants, difficulty in

185 See for example Louis de Plainval to Bishop Taché, 8 June 1871, SHSB, Série Taché, pages T-8942 - 8944 (Doc. #266); warning Métis people not to go into Winnipeg because Ontario volunteers had threatened Ade faire un mauvais parti a ceux des metis qu=ils pourront rencontrer@.

186 NAC, MG9, E3, vol. 3 (manuscript census of Manitoba, 1870) (Doc. #261); Ens, Homeland to Hinterland, 140 (Doc. #377).

237 57 securing their lands under the Manitoba Act, and general discouragement with the new economic, political and social regime in Manitoba all contributed to this movement.187 While historians have correctly emphasized the rapid population shift that led to the Métis being outnumbered by new immigrants, it is important to remember that many Métis people stayed close to their Red River roots. The 1901 census showed that parishes such as St. François Xavier and St. Norbert still had substantial Métis populations, composed of many old Red River families.188

Similarly, pre-1870 patterns of life did not change immediately for many of the Red River Métis. Le Métis, the newspaper of the French-speaking population of the Red and Assiniboine Rivers from 1871 to 1881, frequently reported on the arrivals and departures of the hunters, and the locations and results of the hunt.189 However, by 1879 the large buffalo herds had vanished forever. After 1880, the sources have little to say about the activities of the Métis, except to comment on their poverty. From the St. Florent mission at Lac Qu=Appelle, the missionary Hugonnard wrote in November of 1883 that Anos métis sont extrèmement pauvres maintenant qu=il n=y a plus de charroyage ni de [email protected] The alternatives to the buffalo hunt, which included hunting lower-value birds and animals, provided a very poor living: Les hivernants voient se vérifier cette année les prophèties qui leur ont été faites depuis longtemps: pas de provisions du tout à la montagne des Bois. Ils sont obligés de vendre leurs chevaux presque pour rien pour avoir un peu de farine qu=ils mangent avec les canards et les loups qu=ils peuvent tuer. Beaucoup vont

187 Ens, Homeland to Hinterland, 148 - 171 (Doc. #377).

188 NAC, manuscript census of 1901 (Doc. #353).

189 AArrivee des hivernants@, Vol. 1, no. 48, 15 May 1872, p. 2 (Doc. #279); ANouvelles locales@, Vol. 2, no. 40, 17 May 1873, p. 3 (Doc. #286); ANouvelles locales@, Vol. 2, no. 41, 24 May 1873, p. 3 (Doc. #287); ANouvelles locales@, Vol. 3, no. 1, 31 May 1873, p. 2 (Doc. #288); ANouvelles du Nord-Ouest@, Vol. 3, no. 31, 10 January 1874, pp. 1 - 2 (Doc. #299); AEcho de la Saskatchewan@, Vol. 3, no. 41, 21 March 1874, pp. 2 - 3 (Doc. #300); ANouvelles Locales@, Vol. 6, no. 19, 5 October 1876, p. 3 (Doc. #323); ANouvelles Locales@, Vol. 7, no. 9, 26 July 1877, p. 2 (Doc. #328); ANouvelles du Nord-Ouest@, Vol. 9, no. 31, 21 February 1880, p. 2 (Doc. #340).

190 Hugonnard to Taché, 20 November 1883, SHSB, FCASB, Série Taché, page T-28394 (Doc. #347).

238 58

hiverner à la Roche jaune.191

In 1900, Father Albert Lacombe announced the establishment of an agricultural colony for the Métis by recalling the great buffalo hunts and the subsequent disappearance of the buffalo, and writing: Les grandes chasses vont disparaître avec l=âge d=or pour les pauvres indigènes. Un autre genre de vie, celui des blancs, s=imposait, si l=on ne voulait mourir de faim...Ils vendrent les terres que le gouvernement leur avait cédées et bientôt ce fut la pauvreté, la misère.192

The 1901 Census classified the Aprincipal occupation@ of most of the Métis residents enumerated at St. François Xavier and St. Norbert as Afarmer@ or [email protected], immigration and settlement proceeded with remarkable speed after 1870. Treaties were signed with the AChippewa and Swampy Cree Tribes@ for land in present-day Southern Manitoba in 1871.194 A plan depicting surveys completed in 1871 shows quarter-section surveys finished in the townships around the forks, plus some townships at the south end of Lake Manitoba and base lines across much of Southern Manitoba.195 An 1874 plan showing surveys commenced in the summer of

191 Hugonnard to Taché, 20 November 1883, SHSB, FCASB, Série Taché, page T-28392 (Doc. #347).

192 ALes Métis du Manitoba et des Territoires du Nord-Ouest Canadien@, A. Lacombe, in Missions de la Congrégation des Oblats de Marie Immaculée, Décembre 1900, 451 (Doc. #352).

193 Dominion of Canada 1901 manuscript census, St. François Xavier and St. Norbert (Ritchot) census subdivisions (Doc. #353).

194 Text of Treaties One and Two, reprinted in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories including the Negotiations on which they were based (Toronto: Belfords, Clarke, 1880; reprinted by Fifth House Publishers, Saskatoon, 1991), 313 - 320 (Docs. #268, 269). Lord Selkirk had also signed a treaty or purchase document with the Cree and Chippewa on 18 July 1817, but the validity of this Atreaty@ was in dispute by 1871. See Ritche, Turtle Mountain Tales, 4-17 (Doc. #381); Pritchett, Red River Valley, 197 - 199 (Doc. #356).

195 AMap of the Province of Manitoba, shewing the Surveys effected in 1871". Department of Secretary of State of Canada, Dominion Lands Office, 1 March 1872. PAM, 614.1 bj 1871 (Doc. #270).

239 59

1871 indicates township and section surveys across much of the small province of Manitoba, and quarter-section surveys adjacent to the river lots from Portage la Prairie to the Forks, south to Pembina and north to Lake Winnipeg. The Aextent of Land laid out for Settlement@ at the time the map was printed was estimated at 9,695,156 acres.196 In 1875, 11,970 immigrants arrived in Manitoba, a number almost equal to the entire population of the province in 1870.197 Between 1876 and 1881, approximately 40,000 immigrants came in, primarily of British descent, Protestant and from Ontario.198 By the early 1880s, townships along the southwestern border of Manitoba, such as Killarney, had been surveyed and were being settled by newcomers, and some local governments such as the municipality of Turtle Mountain had been organized.199 By 1891, the survey fabric extended to the Rocky Mountains.200

196 Untitled map of surveys in the Province of Manitoba, PAM, H7 614.1 gbbd 1874 (Doc. #298).

197 Morton, Manitoba, 176 (Doc. #362).

198 Morton, Manitoba, 177 - 181 (Doc. #362).

199 AMap of a Portion of the Province of Manitoba Showing Dominion Lands Surveyed, and Distinguishing Certain Lands Disposed of@, Canada Department of Agriculture, 12 January 1882, PAM, H3 614.2 gbbd 1882c (Doc. #344); Turtle Mountain municipality records, minutes of municipal council meetings, 16 January 1883 to 1938, PAM reel M228 (not copied); also see Aileen Garland, Trails and Crossroads to Killarney (Killarney and District Historical Committee: 1967) (Doc. #361); Alan B. McCullough, AThe Boyne Settlement in 1881", paper presented at the Annual Meeting of the Canadian Historical Assocation, 2004 (Doc. #383); G. Ens, AThe Dispersal and Resettlement of the Oak Lake Metis to 1900", 2003, published online at ecclectica.ca/issues/2003/2/ens.asp (Doc. #382).

200 AMap of the Province of Manitoba and part of the Northwest Territories of the Dominion of Canada shewing Dominion Land Surveys to 30th June 1891", Canada Department of the Interior, 30 June 1891, PAM, H9 610.3 bj 1891 (Doc. #349).

240 R. v. Goodon, [2009] M.J. No. 3 Manitoba Judgments

Manitoba Provincial Court Brandon, Manitoba J. Combs Prov. Ct. J. Judgment: January 8, 2009. [2009] M.J. No. 3 | 2008 MBPC 59 | 234 Man.R. (2d) 278 | [2009] 2 C.N.L.R. 278 | 185 C.R.R. (2d) 265 Between Her Majesty the Queen, and William Neal Goodon, Accused

(85 paras.)

Case Summary

Aboriginal law — Hunting, fishing and logging rights — Hunting, fishing or trapping — Purpose — For food — Constitutional issues — Recognition of existing aboriginal and treaty rights — A charge of unlawful possession of wildlife was dismissed — The accused was a Metis person and had an aboriginal right to hunt for food — Hunting and harvesting food was integral to the Metis culture in southwestern Manitoba and the practices continued from time of European control to the present — Constitution Act, 1982, s. 35 — Wildlife Act, s. 19.

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Aboriginal rights — A charge of unlawful possession of wildlife was dismissed — The accused was a Metis person and had an aboriginal right to hunt for food — Hunting and harvesting food was integral to the Metis culture in southwestern Manitoba and the practices continued from time of European control to the present — Constitution Act, 1982, s. 35 — Wildlife Act, s. 19.

The accused, who was charged with unlawful possession of wildlife after harvesting a duck at or near the Turtle Mountains without a licence, claimed he had a constitutionally protected right to hunt for food. There was evidence the Metis, who led nomadic lives, had joined First Nations People at Turtle Mountains as early as 1820. The Metis were economically diverse but were defined by two consistent and evident characteristics; they were hunters and they were mobile. In an 1881 Canadian Census 17 family heads were described as residing at Turtle Mountain, which was an important part of the large Metis regional community throughout the nineteenth century. At the time of the hearing there were 110 to 115 members of the Turtle Mountain local of the Manitoba Metis Federation. The accused presented genealogical evidence disclosing six generations of Metis ancestry, showing a connection to Manitoba Metis prior to the establishment of the Province. The accused resided in Brandon but still hunted on a regular basis and considered himself from Turtle Mountain.

HELD: The charge was dismissed. The accused was a Metis person and had an aboriginal right to hunt for food. Section 19 of the Wildlife Act was of no force and effect to the accused in the circumstances. Hunting and harvesting food was integral to the Metis culture in southwestern Manitoba and the practices continued from time of European control to the present.

241 R. v. Goodon, [2009] M.J. No. 3 Statutes, Regulations and Rules Cited

Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 35

Manitoba Act, R.S.C. 1985, App. II, No. 8

Wildlife Act, C.C.S.M. c. W130, s. 19

Counsel

Heather Leonoff, Q.C. and Michael Conner for the Crown.

Jean Teillet and Jason Madden for the Accused.

J. COMBS PROV. CT. J.

Introduction

1 The accused is charged under s. 19 of the Wildlife Act of Manitoba S.M. c. W130 with possessing wildlife which was killed in contravention of that Act. The accused claims that he has a constitutionally protected right as a Metis to hunt for food under s. 35 of the Constitution Act, 1982 and therefore s. 19 of the Wildlife Act does not apply to him, containing no reasonable accommodation for his constitutionally protected right.

Facts

2 The facts are not in dispute and have been presented to the Court by a written Agreed Statement of Facts filed as an exhibit in these proceedings.

3 The facts are that the accused, on October 19, 2004, shot and killed a ringneck duck at or near the Turtle Mountains in southwestern Manitoba. On October 20, 2004, the accused met with a conservation officer with Manitoba Conservation and admitted that he had in his possession a duck that he had harvested under the authority of a harvesting card issued by the Manitoba Metis Federation and that he knew harvesting the duck contravened the Wildlife Act of Manitoba. The accused was charged with unlawful possession of wildlife contrary to s. 19 of the Wildlife Act S.M. c. W130 as he did not have a licence to hunt as required by that legislation.

4 The constitutional question to be determined is:

a) Is s. 19 of the Wildlife Act S.M. c. W130 of no force and effect with respect to the accused in these circumstances by reason of his aboriginal (Metis) rights under s. 35 of the Constitution Act, 1982?

5 This Court is not being asked to determine if Metis peoples have special hunting rights as that has already been determined.

6 The Constitution Act, 1982 in s. 35 provides:

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a) s. 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. b) s. 35(2) In this Act "aboriginal peoples of Canada" includes the Indian, Inuit and Metis people of Canada.

7 The fact that Metis hunting rights are affirmed and protected under this section of our Constitution was confirmed by the Supreme Court of Canada in R. v. Powley [2003] 2 S.C.R. 207. The decision clearly determined, however, that a Metis hunting right only exists in circumstances where that individual is a member of an identifiable Metis community that has been continual and stable at a site that can be specifically identified. In addition, as this is a communal right rather than an individual right, the practice which is to be protected must be a practice important to that community not only today but prior to European control of that community.

8 Certain principles have been established by the Court in analyzing aboriginal rights and, in particular, the effect of s. 35(1) of the Constitution Act. These principles recognize the purpose of constitutionally recognized aboriginal rights as enunciated in R. v. Van der Peet [1996] 2 S.C.R. 507 at paragraph 31:

"What s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affected by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies within the sovereignty of the Crown."

9 Our Constitution, in s. 35 recognizes the existence of the unique Metis culture and practices that existed prior the control by European settlers and governments and ensures, as much as reasonably possible, that the Metis be allowed to preserve their culture and carry on their practices without unreasonable government interference.

10 Therefore, in interpreting s. 35(1) the Supreme Court in R. v. Sparrow [1990] 1 S.C.R 1075 at paragraph 56, it is suggested that it be done in a "purposive way" with a "generous, liberal interpretation of the words in the constitutional provision". The provisions must be interpreted and applied in a manner that recognizes and preserves the interests that are being protected. This was described by McLachin, J (as she then was) in R. v. Van der Peet (supra) as the right to use the land and adjacent waters as the people had traditionally done for its subsistence. Any doubt about the interpretation or application of any provisions whether they be in statutes or treaties, should be resolved in favour of the Aboriginal right being claimed.

11 It is equally clear that any legislation which significantly impairs a Metis person from exercising a right granted under s. 35 will be deemed to be an infringement and, absent reasonable justification, is of no force and effect against that individual. In R. v. Adams [1996] 3 S.C.R. 101 at paragraph 54, Chief Justice Lamer on behalf of the Court stated:

"In light of the Crown's unique fiduciary obligations toward aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulation must outline specific criteria for the granting of discretion which seeks to accommodate the existence of the aboriginal rights."

12 With this backdrop, the Supreme Court in Powley developed a ten-part test to determine where a constitutionally protected Metis right has been unreasonably infringed. That test is as follows:

(1) Characterization of the Right (2) Identification of the Historic Rights-Bearing Community

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(3) Identification of the Relevant Time Frame (4) Identification of the Contemporary Rights-Bearing Community (5) Verification of the Claimant's Membership in the Relevant Contemporary Community (6) Determination of Whether the Practice is Integral to the Claimant's Distinctive Culture (7) Establishment of Continuity Between the Historic Practice and the Contemporary Right Asserted (8) Determination of Whether or Not the Right was Extinguished (9) If there is a Right, Determination of Whether There is Infringement (10) Determination of Whether the Infringement is Justified

13 I will apply this test to the facts and circumstances of this case.

Characterization of this Right; Identification of the Historic Rights-Bearing Community

14 The first step is to characterize the right being claimed which has to be clearly set out and needs to be site specific.

15 The nature of the right being claimed is not in dispute. The accused harvested a duck in the Turtle Mountain region of Southwestern Manitoba and it is accepted that the purpose of the harvesting was for food. The issue in dispute is how the site or area where the right is claimed should be defined.

16 At this point, it is important to note and distinguish between two site specific elements of the Powley test. Firstly, the right being claimed has to be site specific. Secondly, in identifying the historic rights-bearing community, the geographic extent of that community will have to be identified. These are two different components of the Powley test and may result in two different geographic areas. For instance, the site of the right being claimed may be within the historic rights-bearing community but may not include the entire area. The right being claimed in this case is hunting and the "site" specific "requirement of the test is where the hunting actually occurred."

17 At the commencement of this trial, the accused asserted that right being asserted by him was the right to hunt in the environs of the Turtle Mountains.

18 The Turtle Mountains or Mountain is more accurately described as a hill that rises to a maximum of approximately one thousand feet above the surrounding prairie. It is located partially in southwestern Manitoba and straddles the Canadian-United States border. The "mountain" covers an area of about ten miles north-to-south on each side of the border and approximately thirty five miles east-to-west. The environs of the Turtle Mountains on the Canadian side of the border would include an area encompassing the communities of Deloraine, Boissevain, and Killarney, all in Manitoba.

19 At the conclusion of the evidence, the accused suggested that the appropriate site for the hunting right claimed should be much more extensive and should include an area described as the Northwest. Evidence was presented that the Northwest is the term that was used by the fur traders and voyageurs to describe the area north and west of central Canada and includes almost all of the provinces of Manitoba, Saskatchewan, and Alberta, the southern Canadian territories and northwestern Ontario. Dr. Frank Tough, an expert in history, who gave evidence on behalf of the Defence described the Northwest as:

"The Northwest here is similar to what used to be referred to as The Northern Department of the Hudson's Bay Company, which was made up of a number of regional Hudson's Bay Company districts. Today it would include the west, the western sub-Arctic of the northern plains; it would include the southern area of the Mackenzie District, or the Northwest Territories as we know it today, north of 60, Alberta, Saskatchewan and Manitoba, and northwestern Ontario.

Page244 4 of 13 R. v. Goodon, [2009] M.J. No. 3

Northwest is a perspective, a geographical perspective really sort of from Montreal or Toronto or Ottawa, because they were looking in that direction and that's what they're referring to. People here don't see themselves as being northwest per se, and it's here where they are, so it's a view that comes out of the fur trade, the Montreal fur trade, the voyageurs, that they're heading off to the "Northwest." So it's that region that's north and west of Central Canada." (Trial Transcripts - June 21, 2007 pg 33-34)

20 I am not prepared to accept this position for two reasons. Firstly, the evidence has been presented and witnesses examined on the understanding that the right being claimed is the right to hunt at Turtle Mountain. Much of the evidence presented was based on the history, customs and practices of Turtle Mountain. While I accept that the interpretation and application of questions and issues related to aboriginal law are to be done liberally and, where reasonable, to the benefit of the claimant, it would be unfair to dramatically change the site of the right being sought at the conclusion of the evidence. The Crown would be unfairly prejudiced if I were to do so.

21 Secondly, the right being sought is to relate to a specific tract of land where the practice has occurred; re: where the hunting occurred. In this instance, while much evidence was presented concerning traditional Metis territory and the fact that the Metis peoples are traditionally hunters, the evidence discloses that the Turtle Mountain and surrounding area is a distinct geographic area used by Metis people for certain traditional practices, including hunting. The hunting occurred at the Turtle Mountains and the appropriate site to be considered is the environs of the Turtle Mountains.

22 The right being claimed by the accused is the right to hunt for food at the Turtle Mountains and its environs.

23 In order for a present-day Metis hunting right to exist, the accused is compelled to demonstrate that a rights- bearing community of Metis existed at the site in issue at the time of effective European control. This involves a resolution of three separate questions:

a) What is a rights-bearing community? b) What are the geographic limits of that community? c) When was the effective date of European control and did the community exist at that time?

24 Determining the rights-bearing community is essential as the right claimed is collective and is site-specific. Community as it relates to Metis people has been defined by the Supreme Court in Powley, at paragraph 12 as follows:

"A Metis community can be defined as a group of Metis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life."

25 The Metis of southern Manitoba were a creation of the Canadian fur trade. In the eighteenth century both the Hudson Bay Company and the Northwest Company created a series of trading posts for the purpose of enhanced trading with the Native bands. Inevitably, there were marital or common law unions between the European traders and Native women resulting in a distinct Metis culture. We heard from Gwyneth Jones, an expert presented by the accused, that this mixed ancestry group started to be described in approximately 1816 as a group distinct from the Europeans and from the Natives. They began to be considered as a group that was interconnected with both aboriginal and European societies but separate and distinct from both. Ms. Jones quotes William McGillvray as Northwest Company Partner as stating in 1815:

"... the Half Breed Indians, a daring and now numerous race sprung from the intercourse of the Canadian Voyageurs who consider themselves the Possessors or the Country and Lords of the soil." (Jones Report Footnote 67)

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26 Ms. Jones opined that this group:

"had an agenda of their own, that they had interests of their own that they would be willing to defend but they would not be put out of their way to defend somebody else's interests if they didn't really see the purpose of it." (Trial Transcript - Nov 17, 2006 p 112 line 3-7)

27 The accused also presented evidence from Dr. A.J. Ray who was accepted as an expert in the economic history of aboriginal and Metis people. He described the Metis people as:

"Culturally distinct from both the First Nations and the Europeans. They were not - they were interconnected with both but they were seen as separate from. ... these are people that have a self-identity, and cultural practices that other people see, setting them apart." (Trial Transcript Oct 26, 2006 pg 65 and pg 74)

28 Dr. Ray, in his report, has given a brief description of the economic patterns of the Metis prior to European control which I will summarize.

29 The Metis were historically employed by both companies engaged in the fur trading industry, being the Hudson's Bay Company and the Northwest Company and by the early nineteenth century became the major component of the work force of both companies. The Metis also became extensively involved in the buffalo hunt at about the same time. The Metis, however, established a clear identity within the work force as they became diversified economically; living off the land in Aboriginal fashion combined with other economic pursuits such as labourers, entrepreneurs and also as small scale farmers. (Ray Report - pg. 35)

30 In 1821 the Hudson's Bay Company and the Northwest Company merged and, as a result, many former employees were without work. Many of the Metis found other work such as becoming independent traders or "freemen" or working with the Plains First Nations as suppliers of provisions for the Hudson's Bay Co. employees and those who settled near the Red River at the Selkirk Settlement. Many of the inhabitants at the Selkirk Settlement were Metis who had retired from the fur trade.

31 During the early nineteenth century the Metis of the Red River were also engaged in the annual buffalo hunts. The hunts occurred to the southwest of the Red River settlement and, as the herds declined and retreated, the distance travelled to the hunts increased. In the mid nineteenth century, the Metis became involved in the robe and hide trades which was an increasingly popular product of the buffalo hunt. The best hides for these purposes were harvested in the winter.

32 As a result, therefore, of the retreating herds of buffalo and the increase in the robe and hide trade, the Metis hunters and traders established winter encampments in sheltered areas of the grasslands.

33 One of the earliest wintering sites for the Metis of the Red River and St. Francois Xavier (upstream on the Assiniboine River from Red River) was the Turtle Mountains. There is evidence of Metis joining First Nations people at Turtle Mountains as early as 1820. Trading posts were established on the American side of the Turtle Mountains and Metis settled permanently in the area in the 1840's. (Ray Report - pg. 74) In the 1850's and 1860's many Metis from Red River and Pembina (on the Red River at the US border) centered their economic life around wintering sites such as Turtle Mountain, organizing summer buffalo hunts, practicing small scale agriculture, receiving education and religious services from Roman Catholic Priests, and engaging in the winter buffalo robe trade. It is also clear that during this time period there is no evidence of any permanent settlement either in the Turtle Mountains or adjacent to the Canadian side of the Mountains.

34 It is clear that the history experts presented by the defence describe the Metis as generally a transient people Page246 6 of 13 R. v. Goodon, [2009] M.J. No. 3 with a community that would be described as regional. Dr. Ray at page 18 of his report opines as follows:

"A local Metis community could be present at more than one settlement in a particular region. In other words, the Metis regional community was not defined by the boundaries of a single settlement."

35 Dr. Gwyneth Jones describes the Metis as "frequenter of the plains" led a nomadic life going to summer and winter hunts and from one place to another on the prairies. The Metis often established temporary shelters, usually located in river beds or wooded elevated areas where game was plentiful and allowed them to survive the winter. Often these people would return to established settlements such as Pembina and Red River during summer to solemnize their marriages, baptize their children, or bury their dead. (Gwyneth Jones testimony - Nov 15/06)

36 As the Metis were transient people, they also gravitated between numerous small pockets of settlement that may or may not have remained permanent. Examples in southern Manitoba were Pembina, Fort Ellice, Fort Brandon, and Oak Lake, with numerous other examples just across the border in the United States. It is clear that the same families periodically inhabited many of these locations and the interaction between the communities was constant. In the opinion of Dr. Jones this interrelated group occupied much of southern Manitoba west and south of the Red River Settlement down into the United States and to the west over the present Saskatchewan border, obviously including Turtle Mountain. (Gwyneth Jones Testimony - May 5/07 pg 63) Dr. Ray agreed with this description of what he called the Metis regional community. (Dr. Ray Testimony - Oct 19/06 pg 34-35)

37 The Crown points out rightfully that there is little evidence presented establishing a consistent Metis presence in the Turtle Mountain area between 1850 and the late 1870's. The buffalo hunt had petered out so the need for wintering sites was lessened. The Northwest Boundary Commission travelled directly through Turtle Mountain and spent approximately a year there in 1873. The expedition found no evidence of a Metis settlement and the reports do not refer to any contact with Metis people. It was pointed by Dr. Clint Evans, an expert called by the Crown, that there was no evidence of a "settlement" at Turtle Mountain prior to 1870. Dr. Evans gave the opinion that while there is evidence that Turtle Mountain was used extensively as a wintering site between the 1820's and the 1850's there is no evidence of an enduring settlement prior to 1870. (Evans Report - pg 71)

38 Evidence before the Court included Metis scrip applications mostly dated between 1894 and 1900. When applying for scrip, people who identified themselves as Metis would often describe where they presently resided and had previously resided, where they were born and where their children were born. These documents disclose only four births in Turtle Mountain during the decade of 1860's. This finding could lead to numerous conclusions as follows:

a) Turtle Mountain was only a place that people travelled through and not often; b) The fact that any births occurred there shows it was a place people travelled often; c) It is likely that many more births occurred in Turtle Mountain to Metis who did not disclose such on their scrip applications or did not or were not able to make such applications in 1885 or 1900.

39 The scrip application also disclosed that by 1885 thirty one Metis families describe their residence as being at Turtle Mountain.

40 Gwenyth Jones also refers to the 1881 Canadian Census in which 17 family heads are described as residing at Turtle Mountain. (Jones Reply Report - pg 2)

41 This information suggests to me that the there was Metis settlement in existence at Turtle Mountain at least in the early 1880's and I am prepared to infer that such a census result would suggest it was likely that such settlement existed for some years prior to the census.

42 Having received opinions that the Metis community encompassed most of what is now southern Manitoba west of the Red River, one has to determine whether the community is consistent with the Supreme Court definition in Page247 7 of 13 R. v. Goodon, [2009] M.J. No. 3

Powley. Did the Metis population in this community have a "distinctive collective identity" and "share a common way of life?"

43 We have referred to and heard much evidence about the mobility of the Metis people within the region and also the fact that much of the Metis population was interrelated. We have also received evidence that as early as 1815 and increasingly so thereafter, the Metis are described as being distinct from First Nations people and from Europeans with their own way of life and their own culture.

44 Although the Metis were economically diverse people, they are defined by two consistent and evident characteristics; they are hunters and they are mobile. While the Europeans engaged in agriculture and related activities, the Metis were always described by historians as hunters. In 1868, Bishop Tache of Red River noted in 1868 that, "The greatest social crime of our French half-breeds is that they are hunters". (Gwyneth Jones Testimony - Nov 18,06 pg 44)

45 Dr. Ray in his evidence pointed out that Metis economic life depended on migration and mobility. "Movement was a central feature of Metis culture". (Ray Report - pg 80)

46 The Metis community of Western Canada has its own distinctive identity. As the Metis of this region were a creature of the fur trade and as they were compelled to be mobile in order to maintain their collective livelihood, the Metis "community" was more extensive than, for instance, the Metis community described at Sault Ste. Marie in Powley. The Metis created a large inter-related community that included numerous settlements located in present- day southwestern Manitoba, into Saskatchewan and including the northern Midwest United States.

47 This area was one community as the same people and their families used this entire territory as their homes, living off the land, and only periodically settling at a distinct location when it met their purposes.

48 Within the Province of Manitoba this historic rights-bearing community includes all of the area within the present boundaries of southern Manitoba from the present day City of Winnipeg and extending south to the United States and northwest to the Province of Saskatchewan including the area of present day Russell, Manitoba. This community also includes the Turtle Mountain area of southwestern Manitoba even though there is no evidence of permanent settlement prior to 1880. I conclude that Turtle Mountain was, throughout much of the nineteenth century, an important part of the large Metis regional community.

Identification of the Contemporary Rights-Bearing Community

49 Metis rights are communal and are grounded in the existence of an historic and present day community and the claimant must prove his "ancestrally based membership in the present community".

50 In Powley it was recognized that, as a result of European control, the Metis community was changed and interfered with but not eliminated. The Metis at Sault Ste Marie generally moved away from the community itself and generally settled onto nearby Indian Reserves or further into the regions. The Metis were more spread out but continued their traditional practices of hunting, fishing, trapping and harvesting of resources. Even though the nature of the community had changed, the practices of the members continued and supported the notion that the "community" existence was continuous.

51 In this case, most of the evidence presented by Mr. Goodon centered around the community at Turtle Mountain and its surrounding area. However, much evidence was also presented about the Metis community in southwestern Manitoba generally.

52 The Metis community today in Manitoba is a well organized and vibrant community. Evidence was presented that the governing body of Metis people in Manitoba, the Manitoba Metis Federation, has a membership of approximately 40,000, most of which reside in southwestern Manitoba.

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53 Evidence was presented that the nature of the Metis community has changed since European control. While the Metis continue to have a dominant presence in such communities as Russell, St. Lazare, St. Laurent, St. Eustache, St. Francois Xavier, and Turtle Mountain, other communities have become larger centers and the Metis population has proportionally decreased. When Manitoba became a province in 1870, its population was primarily Metis. That is no longer the case.

54 The Defence presented numerous community witnesses who identified themselves as Metis. While most of these witnesses were residents or had ties to Turtle Mountain, many were residents of other areas of southwestern Manitoba and described the strength of the Metis community in their area. Evidence was presented that locals of the Manitoba Metis Federation are scattered throughout southwestern Manitoba. To be a member of the Manitoba Metis Federation, individuals have to declare themselves to be Metis, prove their Metis genealogy, and be supported but at least ten current members of the Federation.

55 In particular, we heard about the Turtle Mountain local of the Manitoba Metis Federation. At present there are 110-115 members and the local is very active. A new meeting hall has just been built and the organization is growing.

56 While the Metis community has changed, much of its traditions continue. All community witnesses gave evidence of their involvement with aspects of a distinct Metis culture. In particular we heard descriptions of Metis dress, music, dance, oral history and storytelling, and food. We also heard about the attempts to preserve and emphasize the importance of the Metis language, being Michif. A community witness Norman Fleury, described his knowledge of the Michif language and the personal attempts he is making to teach the language to Metis people. We heard that he is giving Michif language lessons at Turtle Mountain.

57 A universal theme of virtually all the Metis witnesses was their continued relationship with the land and the importance of hunting in their lives. In particular, those community witnesses who still live in Turtle Mountain generally depend to a great extent on the harvesting of the land by hunting, fishing, trapping or gathering to provide their food. The Metis tradition of hunting, was emphasized as an important part of the lives of many of the Metis witnesses.

58 I conclude that there remains a contemporary community in southwest Manitoba that continues many of the traditional practices and customs of the Metis people.

Verification of Membership in the Relevent Contemporary Community

59 In Powley, the Supreme Court confirmed that an individual has to establish that he or she is part of a contemporary rights-bearing community. The Court suggested that Metis are organizing themselves and establishing standardized criteria for membership and that memberships in that organization may be sufficient.

60 There are three components to membership in the contemporary community: self-identification, ancestral connection, and community acceptance. The claimant must self-identify as Metis and this self-identification should be shown to be persistent and not just conveniently asserted to claim a hunting right. The claimant must present ancestral connection to the rights-bearing community. While it is clear the claimant must prove an ancestral connection to the community, it is uncertain whether this ancestral link has to predate European control. The claimant must also demonstrate acceptance by the historic community. This can be demonstrated by ongoing participation in the "shared culture, in the customs and traditions that constitute a Metis community's identity".

61 In the case of Mr. Goodon he gave evidence and confirmed that he self-identifies as Metis. He has chosen to join the Manitoba Metis Federation and has been active in the organization since 1994. His assertion that he is Metis is sincere and not recent.

62 Mr. Goodon has presented genealogical evidence that disclose six generations of Metis ancestry showing a Page249 9 of 13 R. v. Goodon, [2009] M.J. No. 3 connection to Manitoba Metis prior to the establishment of the Province of Manitoba. The claimant is a descendant of Cuthbert Grant Sr., a historical Metis leader. There is no doubt that Mr. Goodon has an ancestral connection to the historic and contemporary Metis community.

63 Mr. Goodon has been accepted by the contemporary rights bearing community. His application to become a member of the Manitoba Metis Federation in 1994 required the support of ten current members of the organization. Mr. Goodon has remained active in the Manitoba Metis Federation and continues to be accepted by its members as Metis.

64 Even though Mr. Goodon now resides in Brandon he still considers himself to be from the bush (Turtle Mountain) and still hunts on a regular basis. He continues to engage in other cultural practices and activities that identify him as Metis.

65 It is clear that Mr. Goodon has historic ancestral ties to the rights bearing community which pre-date European control. It is equally clear that he self-identifies as Metis and continues to be an active member of the contemporary Metis community.

Identification of the Relevant Time Frame

66 As set out above, the protection of aboriginal rights is premised in a determination of pre-existing practices that have been impacted by "the sovereignty of the Crown". As Metis people did not exist prior to contact with native people, the relevant time frame for determining whether a custom or practice is constitutionally protected is the date of effective European control. At what point did European laws and customs exert effective control over traditional Metis practices, customs, and traditions?

67 In Powley, Eurpoean control was determined to be the period when settlement was encouraged and treaties were negotiated to allow the development of the region. In that case the Court determined that "effective control" of the area had passed from the Aboriginal peoples to European control in the period between 1815 and 1870. Obviously the Court determined that a relatively lengthy period of time can be identified as the relevant time period.

68 Settlement occurred at Red River perhaps as early as 1810 with the establishment of Fort Gibralter, a Northwest Company Post. The settlement expanded gradually and certain events occurred in which Europeans imposed or attempted to impose control over the territory primarily inhabited by the Metis and already identified as the rights-bearing community.

69 Some of those events were as follows:

a) In 1811 Lord Selkirk purchased 116,000 acres of territory from HBC in the Red and Assiniboine River basins to establish a settlement for Scottish settlers. They arrived at the Forks (junction of the Red and Assiniboine Rivers) in 1813 and river lots were surveyed and a fort was constructed. This is a significant event as the settlement was not established as a fur trading post but was intended to be a permanent settlement. b) The new settlement tried unsuccessfully to impede Metis hunting rights by restricting the hunting of buffalo on horseback. With the backing of the North West Company, the Metis, under the leadership of Cuthbert Grant, resisted the imposition of any control by the new settlement. In 1816, the Metis, under Cuthbert Grant captured Ford Brandon, a Hudson Bay Company post and then drove the settlers from the Forks after the Battle of Seven Oaks on June 19, 1816. c) Lord Selkirk returned to the Forks in 1817 and re-established the settlement. He was able to maintain peace with the Metis population and no further evacuations were necessary. The Metis were content to have the settlement exist as it offered a market for there goods as long as the settlers did not interfere with their practices and customs.

Page250 10 of 13 R. v. Goodon, [2009] M.J. No. 3 d) The merger of the Hudson's Bay Company and the North West Company in 1821 had a significant effect on the lives of the Metis. As a result of the merger many employees lost their jobs and many trading posts were closed. Many Metis settled near the Forks and Cuthbert Grant himself settled at St. Francois Xavier, just west of the Forks on the Assiniboine River. Grant was given a licence by George Simpson, the appointed HBC Governor, to hunt over an extensive territory including the Turtle Mountains. e) In 1821, in conjunction with the merging of the two fur-trading companies, the British Parliament passed an Act for regulating the Fur Trade and establishing a Criminal and Civil Jurisdiction within certain parts of North America. This provided for the imposition of the laws of England in the "Indian Territories" and gave the Courts of Upper Canada Jurisdiction. In the 1830's laws were passed at the Red River settlement effecting hunting and fishing and reported Court judgments from the settlement started in the 1840's. It is not clear that any of these laws and regulations had much impact on life outside of the Red River settlement. The Metis continued with their pattern of engaging in the buffalo hunt and would be gone from the settlements much of the year. As the buffalo herds decreased they also moved further away from the settlements near the Red River. By the 1830's the buffalo were gone from the Fort Brandon area and by the 1860's were no longer near Fort Ellice. At this time the Metis were travelling to the northern United States and Saskatchewan to find buffalo to hunt. The Turtle Mountains remained an important site for the Metis to establish wintering camps and hunt for other wildlife and game while engaged in the hunt. f) The Metis continued through the mid 19th century to resist the imposition of European control. In 1849 a Metis named William Sayer was tried for illegally trading furs in Rupert's Land. A large group of Metis surrounded the Court building and, while Sayer was convicted, he received no punishment. The Metis treated this as a victory and continued to trade freely, ignoring any law prohibiting such action. All indications are that the Metis population considered themselves immune to European control. In 1856 HBC governor Simpson wrote: "To a man the rising generation of Half-breeds may be set down as opposed to the Company's rule, which they consider adverse to their best interests ... feeling that the soil, the trade and the Government of the country are their birth rights. These visions, we believe, are instilled in their minds not only by the American traders but by the Clergy of both persuasions, and have led to a state of things which occasions us serious uneasiness as to our capability of maintaining the peace of the country while it paralyzes the action of the authorities, who have no hope of carrying out any mission, however necessary for the welfare of the colony, except by so modifying them as to make them profitable to the people ... (Simpson to Committee of Hudson's Bay Company) pg 734 (Doc #231) It is clear that although the Europeans had control over their European settlers, their control over the Metis was entirely subject to their acquiescence. In other words, they had no effective control. g) In 1869 it was rumored that Rupert's Land was going to be sold by the Hudson's Bay Company to the Canadian Government. The Government sent out a group of surveyors to start surveying the to-be- acquired territory. The surveyors were met at a location now part of present-day Winnipeg and told they were not going to survey land which was "the property of French half-breeds." Shortly thereafter, Louis Riel formed a provisional government which included the settlement at Red River and negotiated with the Government of Canada the creation of the Province of Manitoba. h) On July 15, 1870, the Government of Canada created the Province of Manitoba which provided for the transfer of 1,400,000 acres to the unmarried children of "half breed families." This new province included only a small part of present day Manitoba and did not include the area around Turtle Mountain. It has become to be known as the "postage stamp" province. Manitoba census of 1870 showed that the population of 12,228 consisted of 9,840 Metis or about 82%. After 1870 settlement of the area proceeded rapidly and the dominance of the Metis population decreased rapidly. i) After 1870, treaties between the Government of Canada and Indian tribes resulted in the rest of what is now southern Manitoba being available for settlement. The Dominion Lands Act was passed in 1872 which provided for the surveying of this new territory and settlement of the area occurred by the early Page251 11 of 13 R. v. Goodon, [2009] M.J. No. 3

1880's. At this point the traditional Metis practices and customs were impacted by the influx of European settlers. The evidence therefore discloses that, although attempts were made to control the customs, practices, and economic life of the Metis prior to 1870, these attempts were largely ineffective. Effective European control did not occur in the "postage stamp" Province of Manitoba until it actually became a province in 1870 and the remainder of what is now southern Manitoba thereafter with effective control in place by around 1880.

Determination of Whether the Practice is Integral to the Claimant's Distinctive Culture

70 In order for an aboriginal or Metis right to be constitutionally protected, it must be a practice that was integral to the rights bearing community prior to European control.

71 All of the experts, who gave evidence in these proceedings, including the Crown expert, confirmed that hunting and harvesting for food was integral to the Metis culture in southwestern Manitoba. Much evidence was presented concerning the Metis practice of embarking upon the hunt for buffalo for up to three times annually and returning to sell their bounty to the employees of the fur trade and later to the settlers. These practices continued to the time of European control and were an integral part of the life of the Metis.

Continuity Between the Historic Practice and the Contemporary Right Asserted

72 The Supreme Court in Powley confirmed that s. 35 in a "commitment to protecting practices that were historically important features of particular aboriginal communities." The right should only be protected if it continues to be an important practice of the present day community.

73 Much of the evidence presented by the accused related to the present day and historical hunting and harvesting practices at Turtle Mountain. Many community witnesses (some related to the accused) gave evidence about their ancestors hunting at the Turtle Mountains from the 1800's to the present day. We also heard that hunting, fishing, trapping and harvesting of resources from the land have been important practices for the Metis throughout southwestern Manitoba. The accused's grandfather started hunting in the Turtle Mountains in the early 1900's. His father has hunted in this area for seventy years and the accused has done so for most of his life. Even though he now lives near Brandon, he still returns regularly to Turtle Mountain to hunt.

74 Hunting for food was at the time of European control an important practice of the Metis community of southwestern Manitoba and, in particular, Turtle Mountain and continues to be to the present.

Determination as to Whether or Not the Right was Extinguished

75 I have determined that the rights-bearing community is an area of southwestern Manitoba that includes the City of Winnipeg south to the U.S. border and west to the Saskatchewan border. This area includes the Turtle Mountains and its environs.

76 The Crown argues that Metis hunting rights have been extinguished within the "postage stamp" Province of Manitoba by the Manitoba Act of 1870. The Crown further submits that if part of the rights-bearing community rests within the "postage stamp" province, the rights of the entire community are extinguished. I disagree.

77 The hunting in question occurred at Turtle Mountain and the question before the Court is whether the accused has a constitutionally protected right to hunt at Turtle Mountain. The hunting here occurred outside of the "postage stamp" province and the Manitoba Act has no application to any territory outside of the original Province of Manitoba. The Manitoba Act did not and does not have any effect on any activities that occur at Turtle Mountain.

78 The Crown concedes that the onus is on it to prove extinguishment and, as there has been no evidence presented regarding the extinguishment of Metis hunting rights at Turtle Mountain or its environs, the Crown has not met its onus and extinguishment is not proven. Page252 12 of 13 R. v. Goodon, [2009] M.J. No. 3

If there is a Right, A Determination as to Whether there is an Infringement

79 The issue for determination is whether compelling the accused to obtain a provincially generated licence to hunt is an infringement of his constitutional rights.

80 The Supreme Court of Canada in Sparrow suggests there has been infringement if the right has been interfered with and three questions have to be asked to determine that issue. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders their preferred way of exercising that right?

81 The limitation is prima facie unreasonable as it makes no accommodation for the Metis hunter. The Wildlife Act contains no reference to Metis people and makes no attempt to accommodate a constitutionally enshrined right. The Metis population is subject to the same regulations as others which means their hunting season is restricted, the quantity of food they can harvest is restricted without any consideration of their needs, and they must pay the same fees for hunting privileges. Metis people, like others, are properly subject to reasonable restrictions concerning safety and conservation, but the legislative regime has to reasonably accommodate their protected right. Here there is no attempt to do so which makes the regulations of the Wildlife Act concerning licencing to hunt unreasonable.

82 For the same reasons I would find that the legislation imposes undue hardship and denies the Metis their preferred way of exercising the right to hunt.

Determination of Whether the Infringement is Justified

83 The Crown has presented no evidence justifying any infringement of Metis hunting rights in the Province of Manitoba and, in particular, at Turtle Mountains.

84 As indicated earlier restrictions on hunting can be justified for conservation and safety reasons. In this case the Crown has not attempted to provide that justification.

Conclusion

85 I conclude as follows:

a) The accused is a Metis person within s. 35(2) of the Constitution Act and has an aboriginal right to hunt for food. b) That s. 19 of the Wildlife Act, as it read on October 19, 2004, is of no force and effect with respect to the accused, in the circumstances of this case, by reason of his rights under s. 35 of the Constitution Act. c) The charge against the accused is dismissed.

J. COMBS PROV. CT. J.

End of Document

Page253 13 of 13 254 ‘7_) a,—. —

U /7 L—-L-- L--L

COPY OF THE LAWS AND REGULATIONS ESTABLISHED FOR THE COLONY OF ST. LAURENT ON THE SASKATCHEWAN. Public Assembly held on the tenth day of December, 1873, in the winter camp of the Metis established on the Saskatchewan. The inhabitants of St. Laurent held a public assembly to draw up laws and regulations for the peace and tranquility of their community. In the absence of any form of government among them to adminsiter justice and to judge the differences that may arise among them, they have thought it necessary to choose from among their number a Chief and Councillors invested with power to judge differences and to decide ambiguous questions and mat ters offending the public interest. The chief with the members of his Council is elected for one year and during their term of power, the president and the members of council are empowered to judge all cases that shall be brought before them. The chief, by the advice of his Council, can convoke the general assemblies of the public in order to submit for their decision matters of higher consequence, con cerning which they would hesitate to pass orders without knowing the opinion of the majority of the public. It is well understood that in making their laws and regulations the inhabitants of St. Laurent in no way pretend to constitute for themselves an independent state, but the actual situation of the country in which they live, obliges them to take some measures to maintain peace and union amongst them, knowing that so large a society as theirs can exist only under some sort of organisation to preserve mutually their rights, but in forming these laws, they acknowledge themselves as loyal and faithful subjects of Canada, and are ready to abandon their own organisation and to submit to the laws of the Dominion, as soon as Canada shall have established amongst them regular magistrates with a force sufficient to uphold in their country the authority of the law. In the Assembly held on (blank) on the tenth of December, 1873, in the winter camp, Gabriel Dumont was elected President for one year. The following were chosen as members of Council. Alexander Hamelin Baptiste Gurriepy Pierre Gurriepy Abraham Montour Isidore Dumont Jean Dumont Moyse Mealet (?) Baptiste Hamelin After the election of the president and the members of council, the assembly, on the motion of a certain member expressed a desire that president and members, should take an oath before Father Andre their missionary to faithfully perform their 255 (2) duties in the honesty of their conscience without conception of anyone and to judge the cases brought before their tribunal. The president and the members consented to take the oath on con dition that the persons who had chosen them should likewise swear to support them not only with their votes but also to aid them to maintain the laws they might make and to execute the sentences they might pronounce. Father Andre having explained to them the nature of the oath, and having made them understand that it was in his capacity of minister of the gospel and not as civil officer that he re ceived their promise to fullfil their engagements, all the mem bers of the assembly caine on their knees to (kiss) the Holy Bible, calling the Divine Word to witness their firm resolution to support their laws and according to justice and to punish those who would infringe them. Article I. On the first Mondays of the month, the president and members of his council shall be obliged to assemble in a house indicated beforehand by the president in order to judge the cases that may be submitted to their arbitration. II. Any Counsellor who, unless by reason of illness, or impos sibility shall not be present at the indicated place shall pay a fine of five Louis. III. The president, who by his own fault shall not meet his Councillors in the indicated place, shall pay a fine of five Louis. IV. Any captain refusing to execute the orders that he shall receive in the name of the Council shall pay a fine of three Louis. V. Any soldier, who shall refuse to execute the orders of his captain shall pay a fine of one Louis and a half. VI. Any person who shall insult the Council or a member of the Council in the public exercise of his functions shall pay a fine of three louis. VII. Any person who shall be guilty of contempt of any measure of the Council or of one passed in a general assembly shall pay a fine of one louis. VIII. Any person wishing to plead shall inform the president beforehand and shall deposit with him, as security, the sum of five shillings. IX. In every case the plaintiff shall deposit two louis five shillings with the president to remunerate him and the members of the Council for their loss of time but at the termination of the case the person losing it shall pay all the costs and the plaintiff if he (blank) shall receive back the money depo sited.

256 (3)

X. Any person who shall call the assembly together shall pay five shillings to the president and to each member, should he come to a compromise with the other side and abandon the prosecution of the case. XI. Every witness in a case shall receive two and a half shil lings a day. XII. Any case, once brought before the Council, can no longer be judged by any arbitration (blank) the Council. XIII. Any person judged by the Council, shall be allowed ten days to make arrangements with the person with whom the quarrel is at the expiration of that term the Council shall cause its order to be forcibly executed. XIV. Any person, who only has three animals, shall not be com pelled to give up any one of these in payment of his debt. This clause does not apply to unmarried men who shall be compelled to pay even to the last animal. XV. Any person who shall be known to have taken another person’s horse without permission shall pay a fine of two louis. XVI. Any contract made without witnesses shall be null and void and its execution cannot be sought for in the Council. XVII. Any bargain made on a Sunday even before witnesses cannot be prosecuted in court. XVIII. Any bargain any contract any sale shall be valid, whether in French, English or Indian characters even if made without witnesses, if the plaintiff testifies an oath to the correctness of his account or contract. XIX. Any affair decided by the Council of St. Laurent shall never be appealed by any of the parties before aiy another tri bunal when the government of Canada shall have placed its regular magistrates in the country, and all persons pleading do it with the knowledge that they promise never to appeal against the decisions given by the Council and no one is permitted to enjoy the privileges of this community except on the express condition of submitting to this law. XX. Any money contribution shall not exceed one louis and every public tax levied by the Council shall be obligatory for the inhabitants of St. Laurent, and those who shall refuse to submit to the levy shall be liable to pay a fine, the amount of which shall be determined by the Council. XXI. Any young man, who, under pretense of marriage, shall dis— honour a young girl and afterwards refuse to marry her, shall be liable to pay a fine of fifteen louis: This law applies equally to the case of married men dishonouring girls.

257 (4)

XXII. Any person who shall defame the character of another person and shall attack his honour, his virtue or his probity shall be liable to a fine in proportion to the quality and rank of the person attacked or to the degree of injury caused. XXIII. Any person who shall set fire to the prairie from the 1st August and causes damage shall pay a fine of four louis. XXIV. On Sundays and obligatory festivals the river ferries shall be free to people riding or driving to church, but any person who shall cross without going to church shall pay as on ordinary days. XXV. All the horses shall be free, but he whose horse causes injury or annoyance shall be warned and should he not hobble his horse he shall pay a fine of five shillings a day from the time he was warned to look after his horse. XXVI. If any dogs kill a little foal, the owner of the dogs shall be held responsible for the damage done. XXVII. Any servant who shall leave his employer before the ex piration of the term agreed upon, shall forfeit all right to his wages; in the same way any employer dismissing his servant without proper cause shall pay him his wages in full. XXVIII. On Sunday no servant shall be obliged to perform any but duties absolutely necessary; however, (blank) occasion, the master can order the servant to look after his horses on Sundays only after the great mass: he shall never prevent him from going to church, at least in the morning.

Public Assembly held at the winter camp of the Metis the Tenth February 1873. The following resolutions were passed in these Assembly. Resolution I. In order to put an end to the difficulties that arise concerning the limits and boundaries of lands between neighbours, the Council shall appoint a commission of three competent persons to examine the lands and enquire into the matter: but he who shall have caused the difficulty by wishing to encroach on his neighbour’s land shall pay the three com missioners at the rate of five shillings a day. II. Every chief of a family shall not have the right to take a tract of more than two miles in length and a quarter of a mile in breadth but every chief of a family can take a tract of land for those of his boys who shall have attained the age of twenty years.

258 (5)

III. Every individual shall possess an exclusive right to the hay and wood on his land and which may be found up to the end of the two miles of his claim, and no one shall have the right of cutting wood or hay without the permission of the proprietor. IV. To have right to a claim, wood must be placed and it must be occupied within six months starting from the present decree at the expiration of this term if the land be not occupied, the firstcomer can take possession of it. V. In order to prevent the useless destruction of wood, it is decreed that no one shall fell more trees than he can use for work for two weeks, otherwise he shall use (lose) all right to the wood, and should he leave any trees in the wooded tract on the ground without cutting off the brush, the firstcomer can take the wood without the other being able to reclaim it. VI. Any man who has established himself on a land as fit for cultivation shall not be able to claim another tract of land beyond the limits first, as a land which he reserves on account of the ability which he thinks to draw from it on account of the wood that may be found on that land: the lands solely covered with wood and not fitted for cultivation shall be common to the all inhabitants established at St. Laurent.

259 Metis Laws of the Harvest Revised 3rd Edition

Guide to Metis Hunting, Fishing, Trapping and Gathering

260 Table of Contents

Message from MMF President David Chartrand...... 1 Introduction to the Metis Laws of the Harvest...... 3 What’s New in the Revised 3rd Edition...... 5 Principles of Metis Harvesting...... 6 Laws of the Harvest...... 8 Obtaining your Harvester Card, Game Tags and Renewal Stickers...... 10 Harvesters with a Permanent Disability...... 12 Guidelines to Metis Harvesting...... 12

Big-Game Table...... 13 Migratory and Upland Game Bird Table...... 14 Harvesting Quick Reference Guide...... 15 If I Harvest Table...... 16 Footnotes on Table...... 17 If you are approached by a Conservation Officer...... 19

i Manitoba Metis Federation 261 NOTICE

Metis Recognized Harvesting Agreement Area

In September 2012, the MMF and the Province of Manitoba entered into an agreement that recognizes Metis rights to harvest for natural resources for food and domestic use in the defined area of Manitoba indicated in the Metis Recognized Harvesting Area Map on the following page.

Metis harvesters may harvest throughout the Metis Recognized Harvesting Area on all unoccupied provincial Crown Lands in Manitoba and occupied provincial Crown lands, including provincial parks, wherever First Nation Members are allowed to harvest; and on any privately owned lands in Manitoba on which that Metis Harvester has been given permission by the owner or occupant, or Indian Reserve lands with permission of Band Council.

Metis harvesters must follow the Metis Laws of the Harvest when harvesting within the Metis Recognized Harvesting Area.

Temporarily, Metis harvesters harvesting outside the Metis Recognized Harvesting Area must purchase appropriate provincial licenses and follow all provincial regulations.

For more information, please contact the MMF Natural Resources Department prior to purchasing a provincial license.

Metis Laws of the Harvest ii 262 For a more detailed map, please go to mmf.mb.ca

iii Manitoba Metis Federation 263 Message from MMF President David Chartrand, on the printing of the revised 3rd Edition.

Dear Metis Harvesters,

Thank you for picking up this revised version of the Metis Laws of the Harvest, 3rd Edition. Since we first started down this path of fighting for our rights, many things have happened.

We have won in the courts of law and in the courts of public opinion. Our success is only possible because each and every one of you support wildlife and fish conservation along with our Metis harvesting rights.

The way we exercise our rights has been given to us by our Elders who were taught the ways of our people by their Ancestors. These laws are a gift that we must all hold onto and not let individuals or other levels of government tear from our grasp.

Metis Laws of the Harvest 1 264 Practice common sense, listen to your Elders and keep this guide with you as you harvest to feed your family in our traditional ways, share our culture, and leave a legacy for tomorrow’s generations.

Believe in yourself, believe in Metis!

Meeqwetch.

David Chartrand President Manitoba Metis Federation

2 Manitoba Metis Federation 265 Introduction to the Metis Laws of the Harvest, Revised 3rd Edition.

By MMF Natural Resources Minister Alfred Anderson

Dear Metis Harvester,

I am pleased to greet you as the Manitoba Metis Federation’s new Minister of Natural Resources. This is a very exciting time to be leading the Natural Resources portfolio. Together, we have made excellent progress towards the advancement of Metis harvesting rights in the Province of Manitoba, but there’s still more work to do. We will continue to work diligently with the Province of Manitoba to champion our Metis rights throughout the province.

In previous editions, it was stated that along with Metis rights comes responsibilities. We would elaborate this statement further to say that we need to identify what our harvester responsibilities are. Our philosophies on hunting are founded on being conservation minded; never shoot out of the season, be mindful of female animals; ensure they are not tending to young, or have young lying down in the grass nearby.

Metis Laws of the Harvest 3 266 Also, be sure to validate your Metis Harvester Card with a Conservation Trust Fund Sticker and get your new Big-Game Tags every year by April 1st.

This Revised 3rd Edition of the Metis Laws of the Harvest reflects feedback our Natural Resources team has heard from local harvesters and Regional staff. As with earlier editions, these guidelines are subject to refinement following further consultations with the Manitoba Metis Community, at Local and Regional workshops and Annual General Assemblies, using the information gathered from future Harvester Surveys. We want to thank everyone who has participated in developing this Revised 3rd Edition of the Metis Laws of the Harvest. We also want to encourage Metis harvesters to continue to respect the cultural traditions and conservation responsibilities of our ancestors.

Regards,

Alfred Anderson Natural Resources Minister Manitoba Metis Federation

4 Manitoba Metis Federation 267 What’s New in the Revised 3rd Edition

Since the publication of the 3rd Edition, the MMF continues to hear comments from harvesters on the Metis Laws of the Harvest. Based on this dialogue and discussions within the MMF’s Natural Resources team, it was recognized that, for further clarity, amendments were necessary. The end result is this Revised 3rd Edition of the Laws of the Harvest.

For this Revised 3rd Edition, guidelines to harvesting were further clarified and utdatedo content was removed and replaced with current information. A change of date to the Metis Harvester Identification Card annual renewal (page 8), the addition of bear hunting guidelines (page 9), information for harvesters with a permanent disability (page 12), expanding Firewood to include timber for domestic, personal, and harvesting-related uses (page 16), and other minor editorial changes.

The initial publication of the 3rd Edition used information collected from past Harvester Return Surveys, workshops, reports and Harvesting Needs Surveys to create the table of “Guidelines to Metis Harvesting” (pages 12-14).

As with earlier editions, these guidelines are subject to change as we continue to consult with the Manitoba Metis Community. They are simply a summary of what Metis Harvesters have told us they need for their families, as well as what they have actually taken during

Metis Laws of the Harvest 5 268 previous harvesting seasons. The Big-Game table (page 13) now lists bear limits per harvester.

Principles

1. Metis harvesting and Metis harvest, for the purpose of the Laws of the Harvest, means hunting, trapping, fishing and gathering for food and domestic use, including sharing, social and ceremonial purposes, of fish, big-game,small- game, furbearers, game-bird (upland and migratory), berries, mushrooms, medicinal and other plants including wild rice, and firewood or timber.

2. Metis harvesting is a Metis right. This right is not subject to a provincial government draw system.

3. Along with our Metis rights comes a responsibility to our community, and to our environment. Conservation has top priority.

4. Metis have harvesting access to resources equal to that of other Aboriginal Peoples. The Metis right to harvest has priority over non-Aboriginal recreational and commercial harvesters.

5. Sharing the Metis harvest, through those ways traditionally used by the Metis Community, is a Metis right. This includes using designated community hunters to harvest for the disabled, elderly, and those unable to hunt.

6 Manitoba Metis Federation 269 6. To protect our rights, and to meet our responsibilities and obligations, the Metis people have identified four principle objectives to guide the implementation of our rights. These are implemented in the MMF Metis Harvesting Initiative and include:

a. Metis Harvester Identification Cards. The cards identify Metis harvesters and prevent the fraudulent abuse of our Metis harvesting rights by non-Metis.

b. Metis Conservation Trust Fund. A trust fund was created to raise and distribute funds for local and regional Metis- directed conservation initiatives and to support and safeguard our section 35 rights.

c. Metis Management System. The Metis Management System is Metis-developed and recognizes Metis rights and Metis jurisdiction. Management includes a yearly harvest survey and report.

d. Metis Laws of the Harvest. Our Ancestors had our own unwritten and written rules such as the “Laws of the Buffalo Hunt”. The Metis people want Metis- made, common-sense rules to protect our rights and resources such as bag limits, restrictions during calving and spawning periods, and MMF-issued hunting area closures where big-game populations are in decline.

Metis Laws of the Harvest 7 270 Laws

1. Harvesting Right for Food: Exercising the Metis Right to harvest for food means Metis cannot sell their harvest. All commercial use, either selling or buying, must be with a commercial permit or licensing agreement.

2. Harvester Identification Card: Subject to the requirements and exceptions in the attached Harvesting Quick Reference Guide, all Metis harvesters must possess a validated Metis Harvester Identification Card obtained through the Metis Harvester Identification Card Application Process. This Card must be validated annually for the period from April 1st through to March 31st of the following year. To be validated, the Card must have a Metis Conservation Trust Fund Sticker for the applicable period.

3. Big-Game Tags: In addition to the MMF Metis Harvester Identification Card and MetisConservation Trust Fund Sticker, hunting of big-game requires the appropriate management tags for reporting and conservation purposes.

4. Harvester Safety: Metis Harvesters must meet all health and safety regulations, including possessing all applicable federal and provincial firearms, vehicular, and boating safety and operating certificatesand licenses.

8 Manitoba Metis Federation 271 5. Harvesting Season: Metis Harvesters may harvest year-round subject to Metis Regional decision- making, planning, and management consideration as enacted from time to time.

Exceptions to the harvesting season include:

a. No big-game hunting (caribou, moose, elk, deer) from January 15th to July 15th. Black bear hunting, however, is year-round (or spring to fall season). Barren-land caribou can be harvested in the far north in spring or when they are migrating through. During the rest of the year, no hunting of female big-game if the animal is accompanied by offspring under one-year old.

b. No big-game hunting for a specific species in an area when a conservation closure has been issued by MMF to recover a declining population.

c. No fishing by net duringspecies-specific fishspawning seasons. Spawning season occurs every spring from approximately early April to late May.

d. No game-bird hunting during nesting. Spring game- bird hunting may take place during migration if before nesting.

6. Harvesting Area: Metis harvesters may harvest throughout the Manitoba Metis Community’s province-wide traditional harvesting territory on all unoccupied provincial Crown Lands

Metis Laws of the Harvest 9 272 in Manitoba and occupied provincial Crown lands, including provincial parks, wherever First Nation Members are allowed to harvest; and on any privately owned lands in Manitoba on which that Metis Harvester has been given permission by the owner or occupant, or Indian Reserve lands with permission of Band Council.

7. Fishing/Hunting Limits: A harvester can only have 50 pounds of fillets per household in possession (including fish in freezer) at any one time. Fish harvesting is year round. The individual fish caught can be anysize or species.

8. For game limits on harvesting, use common sense, the guidelines provided in this booklet, our unwritten Metis traditional rules, or existing provincial bag limits.

9. Harvesting for Sustenance: Don’t waste. Eat what you kill and if there are other uses for the animal, try to do that. MMF Home and Regional Offices

The Metis Harvester Identification Card, Big-Game Tags, and the annual Conservation Trust Fund sticker can be obtained from your local MMF Regional or Satellite Office.

Big-Game Tags and the annual Conservation Trust Fund sticker can also be obtained from the MMF Head Office at: 300-150 Henry Avenue, Winnipeg Manitoba, R3B 0J7 Phone: 204-586-8474 | Fax: 204-947-1816

10 Manitoba Metis Federation 273 Thompson Regional Office Interlake Metis Association Inc. 171 Cree Road Lot 119 St. Laurent Drive Thompson, MB R8N 0C2 St. Laurent, MB R0C 2S0 Phone: 204-677-1430 Phone: 204-646-2706 Fax: 204-677-2240 Fax: 204-646-4171 Southeast Regional Metis The Pas Region Inc. Corporation 215 2nd Street 56 Parkview Avenue The Pas, MB R9A 1M2 Grand Marais, MB R0E 0T0 Phone: 204-623-5701 Phone: 204-754-2721 Fax: 204-623-4873 Fax: 204-754-2687 Selkirk Local Metis Office Northwest Metis Council Inc. (Interlake Satellite) 505 Main Street South 218B Manitoba Avenue Dauphin, MB R7N 1L3 Selkirk, MB R1A 0Y5 Phone: 204-638-9485 Phone: 204-785-9619 Fax: 204-638-3878 Fax: 204-785-8900 Winnipeg Metis Association Inc. Manitoba Metis Federation 412 McGregor Street Southwest Region Satellite Office Winnipeg, MB R2W 4X5 107 Saskatchewan Avenue East Phone: 204-589-4327 Portage La Prairie, MB R1N 0L7 Fax: 204-582-2711 Phone: 204-857-7039 Fax: 204-857-8042 Manitoba Metis Federation Southwest Region Inc. 656-6th Street Brandon, MB R7A 3P1 Phone: 204-725-7520 Fax: 204-728-9085

Metis Laws of the Harvest 11 274 Harvesters with a Permanent Disability

The MMF recognizes that a portion of our Metis Community members have a permanent disability that may impact their right to harvest. If applicable, please contact the MMF Natural Resources Staff at 204-586-8474, and we will assist you in exercising your right to harvest. Guidelines to Metis Harvesting

During workshops and meetings, the Metis people consistently said that when we are harvesting, we must not waste food and we should only harvest what we need. Following this direction, these Guidelines are intended to share information about the average amounts needed and harvested by the Metis.

The following charts give the average amount of wild foods that Metis said they would use from a recent Harvesting Needs Survey. This is a base guideline for reference.

The column heading: “MMF Harvesting Needs Survey per Harvester”, is the average amount of Big-Game, Migratory and Upland Game Birds that each hunter/fisher would harvest to meet the needs of their family household.

12 Manitoba Metis Federation 275 Big-Game:

Species MMF Harvesting Needs Survey Per Harvester Caribou 1 Black Bear 1 Moose 1 Elk 1 Deer 2 *Big-game harvesters can obtain tags for any of the species listed in the table above. Each harvester can take 6 tags (1 caribou, 1 elk, 1 moose, 1 bear, 2 deer), BUT may only possess 4 animals in their household or freezer at any one time. For instance, if there are 4 harvesters in one household and each has 6 tags, the household can only tag 4 animals at any one time, in any combination of choice. Once they have used up one of the animals, any one of the four harvesters can use one of their remaining tags. This can continue until the big-game season is over. Harvesters must fill out the survey, return any unused tags, and acquire their new tags in the new harvesting season. The Management tags and surveys will be the source of statistical data required by the MMF to assist in developing strong Conservation strategies.

Metis Laws of the Harvest 13 276 Migratory and Upland Game Birds:

MMF Harvesting Needs Species Survey Per Harvester Migratory Game Birds Dark Geese/ Canada Geese 5 White Geese/ Snow Geese 6 Ducks 8 Coots Snipe * Sandhill Crane Upland Game Birds Ruffed Grouse Spruce Grouse 8 Sharp-tailed Grouse Gray Partridge Ptarmigan/Rock Willow * Wild Turkey Birds Total * *The total number was not determined in the Harvesting Needs Survey.

14 Manitoba Metis Federation 277 Harvesting Quick Reference Guide

The reference guide tables on the following pages are intended to help the Metis Harvester identify what requirements must be met if he or she intends to harvest various resources on the land. This guide may change.

Identify the resource you want to harvest on the left hand column. You will notice there are separate lines for harvesters who are 18 years of age or older, 16 to 17 years, and 12 to 15 years. Please choose the applicable line and move to the boxes to the right to determine the requirements needed to harvest.

For example, if you are over 18 and want to harvest deer, you would look under big-game and follow the “18 or older” row and would determine that you require an MMF Metis Harvester Identification Card, a Metis Conservation Trust Sticker, and Management Tags.

Metis Laws of the Harvest 15 278 DO I NEED?... MMF Metis Metis IF I HARVEST... Harvester Conservation Management Adult Identification Trust Fund Tags10 Accompaniment1 Card11 Sticker12 BIG-GAME2 18 years old or older Yes Yes Yes No 16 to 17 years old Yes No Yes No 12 to 15 years old Yes No Yes Yes SMALL-GAME3 18 years old or older Yes Yes No No 16 to 17 years old Yes No No No 12 to 15 years old Yes No No Yes UPLAND4 AND MIGRATORY5 GAME-BIRDS 18 years old or older Yes Yes No No 16 to 17 years old Yes No No No 12 to 15 years old Yes No No Yes FISH6 18 years old or older Yes Yes No No 16 to 17 years old Yes No No No 12 to 15 years old Yes No No Yes SMALL-GAME FURBEARERS7 18 years old or older Yes Yes No No 16 to 17 years old Yes No No No 12 to 15 years old Yes No No Yes BERRIES, MUSHROOMS, MEDICINES, WILD RICE AND OTHER PLANTS8 18 years old or older No No No No 16 to 17 years old No No No No 12 to 15 years old No No No Yes FIREWOOD & TIMBER9 18 years old or older Yes Yes No No 16 to 17 years old Yes No No No 12 to 15 years old Yes No No Yes

16 Manitoba Metis Federation 279 Footnotes on table:

1. All harvesting is subject to, and harvesters must meet the requirements of, all federal and provincial health and safety regulations for harvesting requiring firearms or bows, orfor activities involving potentially hazardous conditions or expose the harvester to risk or possible harm; adult accompaniment is recommended. The adult must meet all his or her adult requirements for the resource being harvested.

2. Moose, elk, barren-ground caribou, white-tail deer, black bear and gray wolf.

3. All other animals not listed in footnotes #2 or #7

4. Ruffed grouse, gray partridge, wild turkey, rock ptarmigan, willow ptarmigan, spruce grouse, sharp-tailed grouse and ring- necked pheasant.

5. Ducks, geese, coots and snipe, sandhill cranes.

6. Arctic char, arctic grayling, black crappie, brook trout, channel catfish, goldeye, mooneye, lake trout, muskellunge, northern pike, rock bass, smallmouth bass, largemouth bass, brook trout, brown trout, rainbow trout, walleye, white bass, whitefish, yellow perch, and freshwater mussels, and other species.

Metis Laws of the Harvest 17 280 7. Beaver, short-tailed weasel, long tailed weasel, coyote, fisher, arctic fox, river otter, badger, bobcat, marten, mink, muskrat, red squirrel, wolverine, raccoon, lynx.

8. Gathering of berries, plants, and wild rice does not require a Metis Harvester Identification Card, stickers or tags. Gathering is intended for own use and not for commercial sale.

9. Metis Harvester Identification Card holders can harvest trees for firewood and timber in lengths as needed for personal, domestic, and harvesting-related uses; firewood or timber cannot be sold for commercial purposes.

10. Tags are required for big-game reporting and conservation management purposes. Other species-specific reporting will also be used.

11. Youth 12 to 17 years require a MMF Harvester Identification Card. Children 11 years or younger may apply for and receive a card, but do not require it. Children must meet all health and safety requirements for the harvesting he or she will be engaged in. Children should be accompanied by an adult at all times.

12. Metis Harvester IdentificationCard will be considered validated without a sticker for those 12 to 17 years of age or younger.

18 Manitoba Metis Federation 281 If you are approached by a Conservation Officer:

If a Manitoba Conservation Officer, orother enforcement authority, approaches you regarding your Metis harvesting or your Metis harvest, please follow these steps:

1. Ensure that you have your validated MMF Metis Harvester Identification Card with an up-to-date Conservation Trust Fund Sticker and the appropriate big-game tags with you at all times while harvesting.

2. Ensure that you are following the Metis Laws of the Harvest Revised 3rd Edition

3. Answer his or her questions politely to the best of your knowledge.

4. Identify yourself as a Metis Harvester to the Conservation Officer, and show the Conservation Officer your Metis Harvester IdentificationCar d.

5. Inform the Conservation Officer that youar e practicing your Metis right to harvest, and that you are harvesting for food or domestic purposes and not for commercial purposes, trophy, or sport.

Metis Laws of the Harvest 19 282 6. Inform the Conservation Officer that youar e practicing your Metis right to harvest, and that you are harvesting for food or domestic purposes and not for commercial purposes, trophy, or sport.

7. If you have any portion of your harvest seized, or you are given a warning or summons (charged) for practicing your Metis right to harvest, contact the MMF Natural Resources Staff immediately to report the incident at 204-586-8474.

8. Make sure to write down an account of the dialogue with the Conservation Officer onthe day the incident occurs.

Remember…..

1. The Metis Harvest is not to be sold.

2. Ensure that you have your validated MMF Metis Harvester Identification Card with an up-to-date Conservation Trust Fund Sticker and the appropriate big-game tags with you at all times while harvesting.

Remember to renew your Conservation Trust Fund Sticker every year by April 1st.

3. Follow all health and safety regulations or requirements.

4. Metis harvesters may harvest year-round with the exceptions found in the Metis Laws of the Harvest, Revised 3rd Edition.

20 Manitoba Metis Federation 283 5. Hunt on unoccupied Crown land and occupied Crown land wherever First Nations Members are allowed to harvest.

6. Hunt on Indian Reserve land only with permission from the Band Council.

7. Hunt on privately owned land only if you have permission by owner or occupant. Identify that you have an MMF Harvester Identification Card.

8. When harvesting for fish, use the limits found in the Metis Laws of the Harvest. When harvesting for game, use common sense, the guidelines in this booklet, unwritten Metis traditional rules, or existing provincial limits.

Metis Laws of the Harvest 21 284 Notes

285 Notes

286 Published by the Manitoba Metis Federation Inc. For more information, please contact the MMF Natural Resources Staff at 300-150 Henry Avenue, Winnipeg, MB R3B 0J7 Phone: 204-586-8474 | Fax: 204-947-1816 Email: [email protected] | Web: mmf.mb.ca

1st Edition August 31, 2004, 2nd Edition March 27, 2007 3rd Edition August 31, 2011, 3rd Edition Revised August 12, 2013

287 MANITOBA METIS FEDERATION INC. CONSTITUTION

AS RATIFIED BY THE 46THANNUAL ASSEMBLY November 16, 2014 288 Preamble

WHEREAS the Metis Nation is one of the Aboriginal Peoples of Canada referred to in section 35 of the Constitution Act, 1982; and

WHEREAS, the Manitoba Metis Community is a part of the Metis Nation; and

WHEREAS, the Manitoba Metis Federation Inc. has been created to be the democratic and self-governing representative body of the Manitoba Metis Community; and

WHEREAS, the Manitoba Metis Federation Inc. has been created as a body corporate in order to conduct financial and administrative affairs relating to the Manitoba Metis Community and to otherwise carry out its objectives; and

WHEREAS, the Manitoba Metis Community comprises Metis Citizens, settlements also known as local communities, and traditional territories, and is defined by a common identity, culture, history and, among other things, social and kinship relationships;

BE IT HEREIN ENACTED:

CONSTITUTION MANITOBA METIS FEDERATION INC. HEREAFTER REFERRED TO AS MMF BY-LAW NO. 1

ARTICLE I OBJECTIVES OF THE CORPORATION

1. To promote the history and culture of the Metis people and otherwise to promote the cultural pride of its membership.

2. To promote the education of its members respecting their legal, political, social and other rights.

3. To promote the participation of its members in community, municipal, provincial, federal, Aboriginal, and other organizations.

4. To promote the political, social and economic interests of its members.

5. To provide responsible and accountable governance on behalf of the Manitoba Metis Community using the constitutional authorities delegated by its members.

AS RATIFIED BY THE 46289THANNUAL ASSEMBLY November 16, 2014 1 ARTICLE II POLITICAL AFFILIATION

The Manitoba Metis Federation Inc. (“the Federation”) shall not be affiliated with any political party.

ARTICLE III MEMBERSHIP

DEFINITIONS AND APPLICATIONS FOR MEMBERSHIP

1. DEFINITION

a. “Métis” means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation;

b. “Historic Métis Nation” means the Aboriginal people then known as Métis or Half-Breeds who resided in the Historic Métis Nation Homeland;

c. “Historic Métis Nation Homeland” means the area of land in west central North America used and occupied as the traditional territory of the Métis or Half-Breeds as they were then known;

d. “Métis Nation” means the Aboriginal people descended from the Historic Métis Nation, which is now comprised of all Métis Nation citizens and is one of the “aboriginal peoples of Canada” within s.35 of the Constitution Act of 1982;

e. “Distinct from other Aboriginal Peoples” means distinct for cultural and nationhood purposes.

2. APPLICATION PROCESS

a. All membership, except honorary membership shall be admitted in accordance with the provision of this article.

b. Applications for membership (also referred to as Citizenship) shall be made in a form established from time to time by resolution of the Board of Directors. Consistent with demonstrating Citizenship in the Manitoba Metis Community, the application shall be submitted to the “Local” of the Manitoba Metis Federation, or the “Local” in care of Regional Office, which represents the:

2 AS RATIFIED BY THE 46TH ANNUAL290 ASSEMBLY November 16, 2014 i. Birthplace of the applicant; or,

ii. Childhood residence or current residence of the applicant; or,

iii. Place in which the applicant has a direct ancestral connection as evidence by a genealogy including supporting evidentiary documents.

For the purpose of this Article “residence,” and “direct ancestral connection” shall bear the meaning established by resolution of the Board of Directors.

c. All applications for membership shall be submitted to the Regional Committee by the receiving “local”. The Committee shall consider each application, and in accordance with such procedures as may be established by the Board of Directors, shall recommend acceptance or rejection of the application, or shall return the application to the applicant along with a request for further specified information respecting the application.

d. Recommendations by Regional Committees in accordance with clause (c) shall be made to the Board of Directors who shall decide whether to accept or reject such applications. The Board’s decision shall be forthwith delivered by registered post or personally to the applicant.

e. The Board of Directors may delegate its decision making authority described in (b) and (d) to the Regional Committee or any such other committee as may be determined from time to time by resolution of the Board of Directors.

3. APPEALS

a. Any applicant whose application is rejected has a right to appeal that decision to the Membership Appeal Tribunal, provided that the appeal is placed before the Tribunal, in such form and in such manner as the Board of Directors may prescribe, within sixty days from the date of receipt of rejection.

b. Any member has a right to appeal a decision respecting his or her membership, provided that the appeal is placed before the Tribunal, in such form and in such manner as the Board of Directors may prescribe, within sixty days from the date of receipt of the decision.

AS RATIFIED BY THE 46TH291 ANNUAL ASSEMBLY November 16, 2014 3 c. The Membership Appeal Tribunal shall be determined and appointed from time to time by resolution of the Board of Directors. The decision made by the Tribunal shall be final and shall not be reviewable by, nor appealable to, any court of law.

4. CLASSES OF MEMBERSHIP

a. INDIVIDUAL MEMBER

Any person who is Metis, a Citizen of the Manitoba Metis Community, and who is 18 years of age is entitled to be an Individual Member (also referred to as a “voting Citizen”) of the MMF.

New Members:

All applicants for membership shall be required to provide a genealogy including supporting evidentiary documents completed by a recognized institution to objectively verify the applicant’s Historic Metis Nation Ancestry.

The Board of Directors shall by resolution designate acceptable recognized institutions and required criteria and documents.

Current Members:

All current members shall be required to provide a genealogy including supporting evidentiary documents completed by a recognized institution to objectively verify the member’s Historic Metis Nation Ancestry no later than September 1st, 2018.

The Board of Directors shall by resolution designate acceptable recognized institutions and required criteria and documents.

b. ASSOCIATE MEMBER

Spouses, as defined by resolution of the Board of Directors, of individual members. Such resolution shall only be effective upon confirmation by the members in general meeting. Associate members shall have no vote and shall not hold office, and shall be entitled only to such benefits as may from time to time be determined by the resolution of the Board, upon confirmation by the members in general meeting.

4 AS RATIFIED BY THE 46TH ANNUAL292 ASSEMBLY November 16, 2014 c. HONORARY MEMBERS

Such persons as may from time to time be admitted by resolution of the Annual General Assembly. Honorary members shall have no vote and no right to hold office.

d. CHILDREN

“Children” includes all natural or adopted children, whether legitimate or illegitimate under Canadian law. Children (under the age of 18 years) of individual members (also referred to as “voting Citizens”), and who are Metis and Citizens of the Manitoba Metis Community, shall be entitled to the benefits of the services of the organization and to such other benefits as shall be determined by resolution of the Board.

ARTICLE IV TERMINATION OF MEMBERSHIP

Individual membership shall terminate upon the happening of one or more of the following events; viz.

1. Death

2. Participation in any land claims agreement under the meaning of the Constitution Act, 1982, to which the Corporation is not a party.

3. The entry of the member’s name in a Band list or in the Indian Register according to the provisions of the Indian Act, R.S.C., c.1-6, as amended.

4. It is determined by the Federation that membership was granted as a result of the member:

a. misrepresenting that he/she is Metis; or

b. providing false information or documentation related to the application for membership; or

c. concealing information which was required to be provided to the Federation as part of the application process.

5. It is determined by the Federation that the member has not provided the genealogy including supporting evidentiary documents that he or she objectively and verifiably meets the definition of Metis in Article III 1 and the individual membership requirement in Article III 4 (a).

AS RATIFIED BY THE 46TH293 ANNUAL ASSEMBLY November 16, 2014 5 6. An individual may appeal the termination of his or her membership to the Membership Appeal Tribunal provided that the appeal is placed before the Tribunal in such form and in such manner as the Board of Directors may prescribe, within sixty days from the date of receipt of notice of the termination of membership.

ARTICLE V REGIONAL AND LOCAL ASSOCIATIONS

1. The Federation shall be organized on the basis of regional associations (“Regions”) which shall comprise the total of local associations (“Locals”) within the boundaries of each Region.

a. BOUNDARIES

i. The boundaries establishing the “Regions” shall be established by resolution of the Board of Directors. Such resolutions shall take effect upon ratification by a 2/3 majority at an Annual General Meeting.

ii. The boundaries establishing “Locals” shall be determined by the Regional Committees pursuant to rules established by the Board.

b. EXECUTIVE

i. Each “Region” shall be administered by a Vice-President and two Directors for that Region, who shall sit on the Federation’s Board of Directors, and who shall form the Regional Committee for their respective Region.

ii. The Vice-President and the two Regional executive officers shall be elected in accordance with the by-laws of the Federation.

iii. Each “Local” shall be administered by a Chairperson, a Vice- Chairperson, and a Secretary-Treasurer.

iv. These executives officers of each “Local” shall be elected in accordance with the by-laws of the Federation.

ARTICLE VI TERMS OF OFFICE

1. The executive officers of a Region shall hold office for a term, or terms, each of which shall not exceed four years and three months from the date of election, and each of which shall commence from the date such officers shall be declared elected by the Chief Electoral Officer and continue until the date of the next following election pursuant to bylaw No.2 or the vacation of that term under Article IX or Article X (5) hereof;

6 AS RATIFIED BY THE 46TH ANNUAL294 ASSEMBLY November 16, 2014 2. The executive officers of each “Local” shall hold office for a term as setand determined by each local. However, no change of executive officers shall be recognized until details of same are registered with the appropriate office and with the “Head Office” of the corporation;

3. Vacancies arising in any of the regional or local offices between regulation elections shall be filled in accordance with the by-laws by special by-election called for that purpose.

ARTICLE VII BOARD OF DIRECTORS

1. The Board of Directors shall consist of:

a. those individuals who have been elected to the position of Vice-President for each Region; and

b. those individuals who have been elected to the two Regional Executive positions for each Region; and

c. the person elected as President of the Federation; and

d. the person elected as Spokesperson of Infinity Women Secretariat Inc.

2. The Board shall have the power to manage and administer the affairs of the Federation.

ARTICLE VIII DIRECTORS: FAILURE TO ATTEND MEETINGS

A member of the Board who fails to attend three consecutive Board meetings without cause acceptable to the Board shall be liable to dismissal ipso facto. For greater certainty, the dismissal shall take effect from the date of the relevant third meeting unless cause acceptable to the Board is shown at that meeting.

ARTICLE IX BOARD OF DIRECTORS: POWER TO REMOVE MEMBERS

1. The Board of Directors shall have the power to remove any officer of the Federation or member of the Board for behavior which is contrary to, or detrimental to, the objects of the Federation, or for behavior which would tend to bring the Federation into disrepute.

2. The Board of Directors shall set a process for the removal of any director or Vice- President by the members of the Federation from the region represented by such director or Vice-President.

AS RATIFIED BY THE 46TH295 ANNUAL ASSEMBLY November 16, 2014 7 3. Where the members of a region have complied with the process defined by the Board of Directors, shall declare the position of such director or Vice-President vacant and institute an election as provided in the By-Laws.

4. Without restricting the generality of the foregoing any petition signed by a majority of members registered to vote in such region or a majority vote supporting such removal taken at any regional meeting at which such recall have been set as an order of business shall be grounds for removal.

5. No motion for removal shall apply unless Notice in writing of intention to remove the director or Vice-President shall have been delivered to such director or Vice- President at least twenty-one (21) days in advance of any regional assembly.

ARTICLE X PRESIDENT

1. The President shall be the Chief Executive Officer of the Federation, and shall chair all meetings of the Board.

2. The President shall hold for a term, or terms, each of which shall not exceed four years and three months from the date of election, and each of which shall commence from the date such President shall be declared elected by the Chief Electoral Officer and continue until the Chief Electoral Officer shall declare elected in an election pursuant to by-law No. 2 another person elected to the office of President or the vacation of that term under Article IX.

3. A candidate for the President’s office must have served at least one year as an elected officer of the Federation.

4. In the event that a vacancy occurs in the office of the President before the expiration of a term, the Board shall appoint a member of the Board of Directors to fill the vacancy unless more than one year remains in the term of that vacancy. In that event an election for the position of President, or any vacancy, in the Federation shall be held in accordance with the by-laws of the Federation.

ARTICLE XI BOARD MEETINGS

1. The Board shall meet at least once in every calendar year.

2. A meeting of the Board may be convened at the request of the President, or at the request of four or more Board members.

3. At least ten (10) business days written notice shall be given for Board meetings provided that the notice requirement may be waived with the agreement of the Board.

8 AS RATIFIED BY THE 46TH ANNUAL296 ASSEMBLY November 16, 2014 4. QUORUM: A majority of the Board shall constitute a Quorum.

5. PROCEDURE: The procedure at meetings shall follow Robert’s Rules of Order unless the Board by resolution adopts another standard for procedures as the first order of business.

ARTICLE XII GENERAL ASSEMBLIES

1. An Annual General Assembly (AGA) of all members of the Federation shall be called once in every calendar year.

2. The following business shall be transacted at every Annual General Assembly namely:

a. The Board shall inform the members regarding the Federation’s activities in the previous year;

b. The Board shall present annual financial statements to the Assembly and arrange for the MMF Auditor to be available to provide information as may be required by the Assembly;

c. The members of the Federation shall appoint an Auditor for the following year;

d. The members of the Federation shall appoint a Resolutions Committee consisting of one member representative from each Region to receive and review Resolutions at the AGA and to submit all proper Resolutions to the Assembly for its consideration;

e. Subject to the provisions of this By-Law, the members of the Federation may by resolution of 60% of the members in actual attendance at the AGA make and approve, change or revoke by-laws for the regulation of the affairs of the Federation.

1. VOTING: At all General Assemblies, each voting member shall have one vote.

2. Regional Committees may submit resolutions to the Board for its consideration for submission to the AGA or to an extraordinary General Assembly.

3. Notice concerning an Annual General Assembly (AGA) shall be sent from the Federation’s Head Office postmarked not less than forty-five (45) days before the date set for the AGA to all Regional offices. The Regional committee shall send such notice to the address of each “Local” secretary-treasurer postmarked at least thirty-five (35) days before the date of the AGA and shall take such other reasonable means available to it to bring notice of the AGA to the members within

AS RATIFIED BY THE 46TH297 ANNUAL ASSEMBLY November 16, 2014 9 its “Region”. Each notice shall provide for the opening and adjournment times which shall be confirmed by a majority vote at the outset of each assembly and which may not otherwise be changed or extended except as hereinafter provided in Article XII (7).

4. The notice concerning an AGA shall specify the place and time of the meeting, and shall state the business to be transacted.

5. Providing that proper and sufficient notice, as hereinafter set forth, shall have been given, there shall be no minimum nor maximum number of members entitled or required to conduct or hold any meeting of the membership. Any motion to extend the time set for adjournment shall require affirmative vote of eighty percent (80%) of the delegates registered to attend such meeting at the close of business on the first day of such meeting. The Assembly may, by majority vote, move to adjourn at any time prior to the times so determined.

6. Quorum for the purpose of an Annual General Assembly shall be one (1) delegate from at least 50% of the registered locals.

ARTICLE XIII EXTRAORDINARY GENERAL ASSEMBLY

An extraordinary General Assembly of the members may be called at any time, by the Board, provided that the notice required for an AGA be complied with and that the purpose for the assembly, and the business proposed for consideration be stated in the notice of such extraordinary General Assembly.

ARTICLE XIV BY-LAW AMENDMENT PROCEDURE

1. No proposed amendment to the Federation’s by-laws, shall be accepted from the floor at an Annual General Assembly or an extraordinary General Assembly;

2. Proposed by-law amendments may be initiated by the Board or, by a member in accordance with the procedure set out in this Article;

3. The wording of any proposed by-law amendment shall be forwarded by the Board to each Regional Office at least Twenty-Five (25) days prior to the Annual General Assembly. Each Regional Office shall distribute the wording of the proposed by-law amendment to each Local at least Twenty-One (21) days before the commencement of the Annual General Assembly or extraordinary General Assembly;

4. Any member who wishes to submit a proposed by-law amendment, must first submit the proposed amendment to his/her Local and obtain the approval of the Local to proceed with the proposed amendment;

10 AS RATIFIED BY THE 46TH ANNUAL298 ASSEMBLY November 16, 2014 5. If approval of the proposed by-law amendment is given by the Local, the Chair of the Local shall then submit the proposed by-law amendment to the Regional Committee (Regional Executive);

6. In the event a member’s Local is not active, a member may submit a proposed by- law amendment directly to the Regional Committee (Regional Executive);

7. The Regional Committee (Regional Executive) shall within Fourteen (14) days of the receipt of the proposed by-law amendment, submit the proposed by- law amendment to the Board along with the recommendation of the Regional Committee (Regional Executive) with respect to the proposed by-law amendment;

8. The Board will review all proposed by-law amendments received from a Regional Committee (Regional Executive) and may, suggest such changes as in the opinion of the Board, may be appropriate;

9. Any suggested changes by the Board will be communicated to the Regional Committee (Regional Executive) which in turn shall communicate such suggested changes to the Local and determine whether the Local/member who first proposed the by-law amendment agrees to the changes suggested by the Board;

10. The Board will then decide whether the proposed by-law amendment should be brought forward to the next Annual General Assembly or extraordinary General Assembly. In the event the Board decides not to have the proposed by-law amendment brought forward to the Annual General Assembly or extraordinary General Assembly, a written explanation as to the Board’s decision shall be provided to the Regional Committee (Regional Executive), the initiating Local and the member who proposed the by-law amendment;

11. In the event the Board agrees to have the proposed by-law amendment brought forward to the Annual General Assembly or extraordinary General Assembly, it shall do so in accordance within the time frame stated in paragraph number 3 above.

ARTICLE XV ELECTION OF DIRECTORS AND EXECUTIVE

The Board of Directors shall pass by-laws for the regulation of the elections of members of the Board of Directors and other officials of the Federation.

ARTICLE XVI MISCELLANEOUS

1. Each Director shall be entitled to receive an amount by way of Director’s fees or any other form of remuneration, which amount shall be established by the Board of Directors on an annual basis.

AS RATIFIED BY THE 46TH299 ANNUAL ASSEMBLY November 16, 2014 11 2. No elected officer of the Federation may do work for the Federation, either as an employee or by contract, other than the fulfillment of the obligations of his or her position within the Federation.

3. For greater clarity, and not restricting the generality of the foregoing, no person who receives remuneration either by way of Director’s fees, nor as payment for the holding of any office within the Federation (i.e. President or Vice-President) shall be considered an employee of the Federation. No person elected to office shall by reason only of having failed to be re-elected to such office be entitled to any further or other notice, or to any severance pay or other employee benefit.

ARTICLE XVII METIS HARVESTING INITIATVE

1. The Metis Harvesting Initiative comprises the structures, policies and procedures enabling and regulating the exercise of the Manitoba Metis Community’s collectively-held harvesting rights recognized in section 35 of Canada’s Constitution Act, 1982;

2. The Metis Harvesting Initiative includes but is not limited to the following:

a. Metis Harvester Registration and Metis Harvester Identification Cards;

b. Metis Conservation Trust Fund;

c. Metis Management System;

d. Metis Laws of the Harvest.

3. Any person who is Metis, as defined in this Constitution, and a member of the Manitoba Metis Community, is entitled to register as a Metis Harvester, receive a Metis Harvester Identification Card, and participate in the Metis Harvesting Initiative and shall accept and be subject to all policies and procedures governing the Metis Harvesting Initiative as may be prescribed by resolution of the Board of Directors;

4. Harvester Application Process:

a. All applications to be registered as a Metis Harvester and to receive a Metis Harvester Identification Card shall be made in accordance with the provisions of this article;

b. The application process shall be objective and verifiable and in the form and manner as may be prescribed by resolution of the Board of Directors.

12 AS RATIFIED BY THE 46TH ANNUAL300 ASSEMBLY November 16, 2014 5. Harvester Application Appeals:

Any applicant whose application is rejected has a right to appeal that decision to the Membership Appeal Tribunal, provided that the appeal is placed before the Tribunal, in such form and in such manner as the Board of Directors may prescribe, within sixty days from the date of receipt of the decision.

MANITOBA METIS FEDERATION INC. ELECTION BY-LAW

ARTICLE I

This by-law applies to “Regional” and “Provincial” elections held by the MMF.

It does not apply to “Local” elections.

ARTICLE II

For the purposes of this by-law the following definitions apply:

1. “Candidate” – means a member of the MMF who:

a. is entitled to hold an elected office in the MMF; and

b. is duly nominated as a candidate for office.

2. “Chief Electoral Officer” – means the person appointed by the Board of Directors of the MMF to fulfil the position of Chief Electoral Officer.

3. “Deputy Chief Electoral Officer” – means a person appointed by the Chief Electoral Officer to assist him/her in carrying out the duties and responsibilities of Chief Electoral Officer.

4. “Deputy Returning Officer” – means a person appointed by the Chief Electoral Officer to manage and conduct voting procedures at polls that are established by the Chief Electoral Officer.

5. “Election” – means an election called pursuant to the Constitution and by-laws of the MMF.

6. “Elector” – means a member of the MMF who is entitled to vote pursuant to this by-law.

7. “Election Day” – means the day when all voting except Advance Poll or mail-in voting takes place.

AS RATIFIED BY THE 46TH301 ANNUAL ASSEMBLY November 16, 2014 13 8. “Election Officer” – means the Chief Electoral Officer and any Deputy Chief Electoral Officer, Deputy Returning Officer and Poll Clerk appointed by him/her for a particular election.

9. “List of Electors” – means the Preliminary List of Electors of the MMF as amended by the Chief Electoral Officer and distributed not less than twenty-one (21) days before Election Day.

10. “Local” – means the association of members established at the community level pursuant to the Constitution of the MMF.

11. “Local Executive” – means the Chairperson, Vice-Chairperson and Secretary- Treasurer of a Local of the MMF.

12. “Member” – means an individual member of the MMF.

13. “MMF” – means the Manitoba Metis Federation Inc.

14. “Poll Clerk” – means a person appointed by the Chief Electoral Officer to assist a Deputy Returning Officer at the Polls.

15. “Polling Station” – means a place established by the Chief Electoral Officer where electors may vote in person.

16. “Preliminary List of Electors” – means the Master List of individual members of the MMF on file at the MMF Head Office on the date the election is called.

17. “Presidential Candidate” – means a nominated member who is entitled to run for the office of President of the MMF.

18. “Region” – means one of the seven (7) Regions of the MMF created in accordance with the Constitution of the MMF.

19. “Regional Position” and “Regional Office” – means the office of the Vice-President and two Directors elected by the voting members in a Region.

20. “Scrutineer” – means a person appointed by a candidate to represent his/her interest at a polling station and to act as his/her agent.

ARTICLE III Chief Electoral Officer

1. The Board of Directors of MMF shall appoint a person to serve as Chief Electoral Officer for each election. The person so appointed shall also have the responsibility to conduct any necessary by-elections while his/her appointment remains in effect.

14 AS RATIFIED BY THE 46TH ANNUAL302 ASSEMBLY November 16, 2014 2. The Chief Electoral Officer shall set, manage and conduct the election.

3. The duties and powers of the Chief Electoral Officer shall include but not be limited to:

a. Creating all forms, notices, ballots and documents as may be required.

b. Appointing a Deputy Chief Electoral Officer and all Deputy Returning Officers and Poll Clerks.

c. Deciding the eligibility of all candidates to run for office. The decision of the Chief Electoral Officer shall be final and not the subject of appeal.

d. Deciding all challenges to candidates. The decision of the Chief Electoral Officer shall be final and not the subject of appeal.

e. Deciding the eligibility of all members to vote and all challenges to members. The decision of the Chief Electoral Officer shall be final and not the subject of appeal.

f. Preparing the List of Electors.

g. Providing a written report to the Board of Directors of the MMF within 60 days from the date of the election.

h. Taking all reasonable actions to ensure compliance with this by-law.

4. The Chief Electoral Officer shall ensure that all eligible electors of the MMF are permitted to vote and that no clerical mistake or omission results in the disenfranchisement of eligible electors.

ARTICLE IV Timing of Election and Rule for Calculation of Time

1. There shall be no more than sixty (60) days between the date of the notice setting the date of the election and Election Day. In order to calculate compliance with this provision, the first day counted shall be the day after the date of the notice setting the date of the election and the last day counted shall be Election Day.

2. For the purpose of calculating a period of time as provided for anywhere in this By-Law, when anything is to be done within a time after, from or before a specified day, the period of time does not include that day.

AS RATIFIED BY THE 46TH303 ANNUAL ASSEMBLY November 16, 2014 15 ARTICLE V Preparation of List of Electors

1. MMF Head Office shall distribute the Preliminary List of Electors, for each Region, to each Regional Office within three (3) days of the Chief Electoral Officer announcing the date of the election.

2. Each Regional Office shall post the Preliminary List of Electors at the Regional Office and shall, within two (2) days of receipt, send out a copy to each Local within the Region.

3. Members shall have twenty-one (21) days from the date of the notice setting the date of theelection to apply for revision of the Preliminary List of Electors by adding or deleting a name/names.

4. The Chief Electoral Officer shall decide the procedure to be followed to allow for the revision of the Preliminary List of Electors by adding or deleting the names of members.

5. The Chief Electoral Officer may accept proof of death of any member from anyone who provides the Chief Electoral Officer with a valid Death Certificate or copy of a published obituary.

6. The Chief Electoral Officer shall only accept the submission of a name for addition to the Preliminary List of Electors, if the member has completed a form approved by the Chief Electoral Officer requesting that the member’s name be added to the Preliminary List of Electors.

7. The Chief Electoral Officer shall revise the Preliminary List of Electors and shall distribute the List of Electors.

8. No names shall be added to the List of Electors by a Deputy Returning Officer or Poll Clerk on Election Day.

9. The Chief Electoral Officer may add the name of a member to the List of Electors on Election

10. Day after consulting with a Deputy Returning Officer only when there has been an obvious clerical mistake or omission and the member to be added satisfies the Chief Electoral Officer that he/she is a member of the MMF.

11. In the event, that an individual has made application for membership in the Manitoba Metis Federation prior to the date on which the Chief Electoral Officer gives notice of the date of the Election, and that application is processed and the individual is approved by the Central Registry Office prior to Election Day, the Chief Electoral Officer shall add the name of the new member to the List of Electors on Election Day.

16 AS RATIFIED BY THE 46TH ANNUAL304 ASSEMBLY November 16, 2014 ARTICLE VI Qualifications of Electors

1. A member whose name appears on the List of Electors may vote in a MMF Election.

2. A member may retain membership in his/her original or another Local indefinitely even though he/she has permanently moved to another community represented by a different Local.

3. If a member has moved and wishes to vote in the Poll where he/she lives, he/she must transfer his/her membership to that Local before an election is called.

4. A member may only belong to one Local at a time.

5. A member may vote only in the Region where the Local he/she is a member of, is located.

ARTICLE VII Appointment of Deputy Returning Officers

1. The Chief Electoral Officer shall appoint a Deputy Returning Officer and a Poll Clerk for every polling station.

2. A person appointed as Deputy Returning Officer or Poll Clerk shall hold office from the time appointed until thirty (30) days after the election and all recounts and appeals have been completed.

3. If a vacancy occurs in those offices during the election process, the Chief Electoral Officer shall appoint another person to fill the vacancy.

ARTICLE VIII Nominations of Candidates

1. The Chief Electoral Officer shall indicate the day on which nominations close in the notice setting the date of the election. The date on which nominations close shall not be more than fourteen (14) days after the date of the notice setting the date of the election. The notice shall be sent to and posted by each Local, Region and the Head Office of MMF. The notice shall also be published in at least one Aboriginal newspaper and in any other newspapers the Chief Electoral officer thinks necessary.

2. Nominations shall be in writing and shall include the candidate’s written acceptance.

3. One or more Nomination Forms shall be signed by the person making the nomination and be supported and signed by at least twenty (20) more electors on the Preliminary List of Electors in the Region in which the candidate is running.

AS RATIFIED BY THE 46TH305 ANNUAL ASSEMBLY November 16, 2014 17 4. Nomination Forms must be filed with the Chief Electoral officer by 5:00 o’clock in the afternoon on the day set for nominations to close. The forms may be delivered or sent to the Chief Electoral officer by mail or fax transmission.

5. If a Nomination Form is received after the deadline, the Chief Electoral Officer may still accept it if it bears a postmark dated prior to the close of nominations.

6. A member may not be nominated for more than one position.

7. A nomination that fails to meet these requirements will be void and the name of the proposed candidate will not appear on a ballot.

ARTICLE IX Qualification of Candidates

1. Only members of the MMF who are residents of Manitoba are entitled to stand for election.

2. To run for the position of Regional Vice-President or Board Member in a Region, a person must be a member of a Local within that Region and reside in that Region. If a person is a member of a Local within that Region but does not reside in that Region, he/she shall be allowed to be a candidate provided he/she gives to the Chief Electoral Officer, a written promise that if he/she is elected, he/she will move and reside in that Region for the duration of his/her term within six (6) months of being elected.

3. Any candidate who breaches his/her promise to the Chief Electoral Officer referred to in subsection (2) shall automatically forfeit his/her elected office.

4. To run for the position of Regional Vice-President or President, a member must at some time have held office for at least one (1) year as Chairperson, Vice- Chairperson, or Secretary-Treasurer of a Local or have been a Regional Board Member.

5. A member who has a debt or financial obligation owing to the MMF or a MMF Region that is more than 30 days in arrears at the date nominations close may not be a candidate. Any member against whom the MMF or a MMF Region holds an unpaid judgment must pay such judgment in full on or before the date nominations close in order to be eligible to be a candidate.

6. A member who has a contract or an interest in a contract for pecuniary gain with the MMF at the date nominations close may not be a candidate.

18 AS RATIFIED BY THE 46TH ANNUAL306 ASSEMBLY November 16, 2014 7. A candidate who is employed by the MMF (except for Regional Administrators) must apply for a leave of absence without pay effective on or before the day on which nominations close. The application for a leave of absence shall be presented to the MMF and a copy shall be sent to the Chief Electoral Officer before nominations close. The MMF shall grant all such applications for a leave of absence.

8. A candidate who is employed by the MMF shall, at the time of applying for a leave of absence, claim and be paid all outstanding holiday pay, wages, claims and disbursements.

ARTICLE X Challenge to Candidates

1. Within seven (7) days of the close of nominations, any elector may submit a written challenge to the right of a candidate to run for the office to which he/she has been nominated.

2. The challenge shall be sent to the Chief Electoral Officer, along with any documents or other material that support the challenge.

3. A copy of the challenge and supporting material shall also be sent to the person being challenged.

4. An elector may only challenge a candidate for Vice-President or Board Member in the Region where the challenger is entitled to vote.

5. The Chief Electoral Officer may decide a challenge on the basis of the written material, or may set a date when the challenger and the candidate may present their arguments in person.

6. The onus to prove a challenge to the satisfaction of the Chief Electoral Officer is upon the challenger.

ARTICLE XI Acclamation

Where, on the close of nominations, the number of candidates nominated for an office equals the number to be elected, the Chief Electoral Officer shall declare the nominated candidates to be elected.

ARTICLE XII Too Few Candidates

Where insufficient candidates are nominated to fill a position, the Chief Electoral Officer shall declare any candidate who has been nominated to be elected and call for further nominations.

AS RATIFIED BY THE 46TH307 ANNUAL ASSEMBLY November 16, 2014 19 ARTICLE XIII Poll Required

Where more candidates are nominated for an office than are to be elected, the Chief Electoral officer shall:

1. Announce the names of the candidates that have been nominated, and

2. Announce the dates, places and times when voting will take place.

ARTICLE XIV Withdrawals

1. A candidate who has been nominated may, before 2:00 p.m. of the second day following the day on which nominations closed, send a written notice to the Chief Electoral officer withdrawing his or her nomination.

2. If such a withdrawal results in insufficient candidates to fill a position, the Chief Electoral Officer shall set a date and time for the receipt of further nominations.

3. If a member who wishes to run for President has already been nominated for another position, he or she shall withdraw from it and if there are not sufficient nominees to fill that position, the Chief Electoral Officer shall call for further nominations.

ARTICLE XV Death of a Candidate

1. Where a candidate dies after being nominated, but before nominations close, no further nominations shall be called for if there are enough remaining candidates to fill the position.

2. In the event of the death of a candidate for the office of President prior to Election Day, the election shall be postponed for at least one month and the Chief Electoral Officer shall call for further nominations for President.

ARTICLE XVI Voting on Election Day

1. Polls shall be open on Election Day between 8:00 a.m. and 8:00 p.m.

2. Elections shall be held at the Polling Stations established by the Chief Electoral Officer.

3. A Polling Station shall be established in such places as the Chief Electoral Officer may decide.

4. A Polling Station shall not be in premises owned by a candidate or a member of his/her immediate family.

20 AS RATIFIED BY THE 46TH ANNUAL308 ASSEMBLY November 16, 2014 5. Polling Stations in public buildings shall be accessible to disabled and handicapped persons.

6. Where a Polling Station is established in a private residence where such access is not available, the DRO and a Scrutineer, if one is present, may go outside the home to permit a handicapped voter to mark his/her ballots.

ARTICLE XVII Advance Polls

1. At least one Advance Poll shall be established in each Region.

2. Advance Polls shall be open for two (2) consecutive days. On the first day, the Advance Poll shall be open between 8:00 a.m. and 2:00 p.m. On the second day, the Advance Poll shall be open between 3:00 p.m. and 9:00 p.m.

3. Electors may vote at an Advance Poll if they wish.

4. Electors who choose to vote at an Advance Poll must vote at the Advance Poll established in the Region where they are entitled to vote.

5. Electors who choose to vote at an Advance Poll must vote in person.

6. There shall be no Mail-in Advance Poll.

7. When the Advance Poll closes, the Deputy Returning Officer shall:

a. Place the ballots in a marked and sealed envelope and place it in the Ballot Box,

b. Place a seal across the opening in the box and initial across it so it will not be opened until Election Day.

ARTICLE XVIII Infirm or Incapacitated Voters

1. Where an elector on the List of Electors comes to a Polling Station to vote and is unable to mark a ballot due to illiteracy, blindness or physical or mental disability, the Deputy Returning Officer shall:

a. Have a friend or relative complete a Voter Assisted form showing the name of the voter, his or her own name and the reason the person is incapable of voting alone.

b. Permit that person to accompany the voter into the voting compartment to mark the ballots in accordance with the voter’s instructions.

AS RATIFIED BY THE 46TH309 ANNUAL ASSEMBLY November 16, 2014 21 c. Receive the completed ballots, check his or her initials and place the ballots in the ballot box.

d. Enter the reason the person was permitted to vote in this manner, and the name of the person who assisted the voter, in the Poll Book.

2. Infirm or incapacitated voters who are unable to attend a Polling Station to vote may vote in the following way:

a. On receipt of an application, the Deputy Returning Officer shall send the Poll Clerk and any Scrutineers who are present and wish to attend to the place where the voter is living.

b. Ask the Poll Clerk to have the voter complete an Incapacitated Voter form. The completed form shall include the name of the voter, the reason the person could not attend a Polling Station and the signature of the Poll Clerk and Scrutineer.

c. The voter must sign the form, or if the voter is infirm, have a friend or relative do so.

d. If the Deputy Returning Officer requires the assistance of another Poll Clerk in the absence of the one who goes to assist a member vote, he/ she may appoint a temporary replacement until the Poll Clerk returns.

e. When the ballots are retuned, the Deputy Returning Officer shall place them in the ballot box and place the voter’s declaration into an Incapacitated Voter envelope.

ARTICLE XIX Ballots

1. The Chief Electoral Officer shall cause a sufficient number of ballots to be prepared.

2. The ballots for the various offices to be filled shall be in the form and colour prescribed by the Chief Electoral Officer.

3. Each ballot shall list the nominated candidates in alphabetical order. If two or more candidates for the same office have the same surnames, their names shall be listed in the alphabetical order of their given names.

22 AS RATIFIED BY THE 46TH ANNUAL310 ASSEMBLY November 16, 2014 ARTICLE XX Voting Material

1. The Chief Electoral Officer shall ensure that each Polling Station has:

a. An area where electors can mark their ballots in private;

b. A document providing voting instructions;

c. A ballot box and tape to secure it until the ballots are counted;

d. A Poll Book containing the names of the electors, who are entitled to vote at that Poll;

e. Instructions for the Deputy Returning Officer and Poll Clerk;

f. Sheets for counting ballots;

g. Forms and envelopes when sorting ballots; and

h. Forms and envelopes for reporting to the Chief Electoral Officer after all the ballots are counted.

ARTICLE XXI Conduct at Polling Stations

1. No person shall speak to or interfere with an elector who is marking his/her ballots or placing them in the ballot box.

2. No person shall approach an elector in a Polling Station to suggest the candidate for whom they should vote.

3. No person shall approach an elector after they have voted to determine the candidate for whom they voted.

4. Any person in breach of these provisions will be removed from the Polling Station and will not be entitled to vote.

5. The campaign office of a candidate must not be within one (1) kilometre ofa Polling Station.

6. There shall be no campaigning in or in the vicinity of a Polling Station on Election Day.

7. Except for casting their own ballots, no candidate or supporters of candidates shall be or remain in the vicinity of a Polling Station on Election Day.

AS RATIFIED BY THE 46TH311 ANNUAL ASSEMBLY November 16, 2014 23 Article XXII Voting by Mail

1. The Chief Electoral Officer may permit members to vote by mail only in remote areas and only if no Polling Station is established in their Local on Election Day.

2. Those electors wishing to vote by mail may only request ballots in writing, and such request shall be signed by the elector.

3. No person shall be allowed to request a mail-in ballot for any other elector.

4. When mail-in ballots have been forwarded to an elector, the poll book will be marked as having voted by mail and the elector may not vote in person at an Advance Poll or at a Polling Station on Election Day.

Article XXIII Secrecy of Voting

1. Voting shall be by secret ballot.

2. Deputy Returning Officers and Poll Clerks shall maintain the secrecy of the vote and shall not communicate any information obtained at the counting of the ballots to any person other than the Chief Electoral Officer or those in his or her office.

3. If they should inadvertently see the face of a voter’s ballot, they shall refrain from telling anyone the name of the voter or for whom the votes were cast.

Article XXIV Scrutineers

1. A candidate is entitled to have one (1) Scrutineer at a time in each Polling Station while voting is in progress and while the ballots are being counted. Where there are several Polling Stations within one (1) Poll, a candidate may have one (1) Scrutineer at each Polling Station.

2. Candidates shall supply their Scrutineers with a form approved for such use by the Chief Electoral Officer, appointing them as a Scrutineer. If Scrutineers are only present for part of a day and are replaced by another Scrutineer, the replacement Scrutineer must have his/her own form to show the Deputy Returning Officer.

3. Scrutineers may observe the operation of the Polling Station and observe the counting of the ballots. They may object to a certain person voting or to the admissibility of a certain ballot but are not entitled to argue their position at length. The decision of the Deputy Returning Officer to accept or reject a challenge is final.

24 AS RATIFIED BY THE 46TH ANNUAL312 ASSEMBLY November 16, 2014 Article XXV Ballot Box

1. On the opening of a Polling Station on Election Day, the Deputy Returning Officer shall:

a. Open the ballot box and, if the same box was used at the Advance Poll, remove the envelope containing the ballots cast at the Advance Poll, and show the empty ballot box to the Scrutineers who are present. The envelope containing the Advance Poll ballots shall then be returned to the ballot box.

b. Seal the ballot box and place their initials across the sealing material and the box. The box shall remain sealed until the Poll closes and the counting of the ballots begins.

2. The ballot box shall not leave the Polling Station during the hours of voting. If it does leave, the ballots in the box shall not be counted, but the box and its contents shall be sent to the Chief Electoral Officer.

3. If there is a recount involving that Polling Station, the Chief Electoral Officer may hear evidence with respect to the removal of the ballot box and decide whether it was opened or tampered with, and may, in his/her discretion, count the ballots in the box or refuse to do so.

Article XXVI Voting Procedure

1. Where a person attends a Polling Station to vote, the Deputy Returning Officer or the Poll Clerk shall:

a. Make certain the person’s name appears on the List of Electors and that the person did not vote at an Advance Poll. The Deputy Returning Officer, or the Poll Clerk shall require the person seeking to vote, to provide acceptable identification evidencing the identity of the person.

Acceptable identification shall be the following:

i. a Manitoba Metis Federation card issued after September 10, 2009; or

ii. a Province of Manitoba driver license; or

iii. an Enhanced Manitoba identification card; or

iv. a student photo identification card; or

v. any other photo identification card or identification documents approved by the Chief Electoral Officer.

AS RATIFIED BY THE 46TH313 ANNUAL ASSEMBLY November 16, 2014 25 b. If the person’s name is not in the Poll Book, they shall not be allowed to vote unless the Chief Electoral Officer permits the addition of the person’s name to the Poll Book,

c. Have the person sign the Poll Book next to his or her name,

d. Initial the ballots, hand them to the elector, and ask they be folded and returned when completed,

e. Explain the voting procedure if necessary and direct the elector to the voting booth,

f. Receive the completed ballots from the elector and examine them to make sure they bear the initials that were placed on them, and

g. Place the ballots, or permit the voter to place the ballots, in the ballot box.

2. Upon receiving ballots from the Deputy Returning Officer or Poll Clerk, the elector shall proceed directly to the voting compartment and mark them by placing an X beside the name of the candidate or candidates for whom he/she wishes to vote.

3. The elector shall then fold the ballots, leaving the initials where they can be seen and return them to the Deputy Returning Officer or Poll Clerk for examination.

4. Only one elector shall be permitted to enter a voting compartment at one time.

5. Where a person who is entitled to vote has received ballots from the Deputy Returning Officer or Poll Clerk, he/she may not speak to any other person or leave the Polling Station until his/her completed ballots have been placed in the ballot box.

6. If an elector makes a mistake in completing a ballot by putting an X opposite the wrong candidate, or opposite too many candidates, the elector may return the ballots to the Deputy Returning officer, explain the circumstances, and receive a new set of ballots in return for the original ones.

7. The Deputy Returning Officer shall write, “exchanged ballots” on the original ballots and indicate in the Poll Book that new ballots were issued. The original ballots shall then be placed in an “Exchanged Ballots” envelope and shall not be counted.

26 AS RATIFIED BY THE 46TH ANNUAL314 ASSEMBLY November 16, 2014 Article XXVII Counting Vote

1. Immediately after the close of the Polls, the Deputy Returning Officer and the Poll Clerk shall, in the presence of any Scrutineers who are present, proceed to count and tabulate the vote on forms provided by the Chief Electoral Officer.

2. The number of names on the List of Electors for the Poll and the number who voted shall be recorded.

3. The number of spoiled, exchanged and declined ballots shall be counted and recorded on the envelopes containing them. Those envelopes shall then be sealed so the ballots in them cannot be counted.

4. The Deputy Returning Officer and Poll Clerk shall count the remaining ballots and record the number of votes cast for each candidate.

5. During the examination and counting of the ballots, the Deputy Returning Officer shall show each ballot to the Scrutineers, hear any comments or challenges they make, and decide whether the ballot is to be counted or rejected.

6. A ballot shall be counted if the elector has clearly indicated the candidate he/she wished to vote for.

7. A ballot shall not be rejected merely because the elector used a pen or other instrument, rather than the pencil that was provided.

8. A ballot is not invalid merely because the elector, without any apparent intention of identification, marked it out of its proper space, as long as the mark clearly indicates the candidate for whom the vote was intended.

9. Ballots shall not be counted if:

a. They were not supplied by the Chief Electoral Officer;

b. Do not bear the Deputy Returning Officer or Poll Clerk’s initials;

c. It is impossible to determine who the elector intended to vote for;

d. The elector voted for more than the permitted number of candidates;

e. The ballot contains a name, signature or other mark that enables the elector to be identified; or

f. If the ballot contains an improper remark about the election or any candidate.

AS RATIFIED BY THE 46TH315 ANNUAL ASSEMBLY November 16, 2014 27 10. The Deputy Returning Officer or Poll Clerk shall endorse each ballot that is rejected with:

a. “Rejected by DRO”;

b. “Challenged by a Scrutineer but counted” where a Scrutineer challenges the DRO’s decision. If the DRO disagrees with the challenge, the vote will be counted.

Article XXVIII Forwarding Results

1. As soon as possible after the counting of ballots is completed, the Deputy Returning Officer shall:

a. Telephone the Chief Electoral Officer’s election office and report the number of votes received by each candidate.

b. Forward to the Chief Electoral Officer the ballots, unused ballots, declaration forms, poll book, counting sheets, and the other documents used during the election, along with his/her signed report.

Article XXIX Election Results

1. The Chief Electoral officer shall, as soon as all telephone reports are received from the Deputy Returning Officers, announce the names of the candidates that appear to have been elected and the number of votes received by each.

2. When the original reports and ballots have been received from the Deputy Returning Officers, the Chief Electoral Officer shall check the reports, but not the ballots, and verify or confirm the results.

Article XXX Recount

1. Where two (2) or more candidates for the same position have an equal number of votes, the Chief Electoral Officer shall declare a tie and conduct a recount.

2. A candidate who was not elected, but received within twenty-five (25) votes of the total received by the elected candidate, may request a recount and the Chief Electoral Officer shall hold a recount with respect to that position.

3. A request for a recount on either basis must be requested within seven (7) days of the Election Day. The Recount shall, if possible, be held within the next seven (7) days.

4. Upon the completion of any and all recounts, the Chief Electoral Officer shall certify the final results of the election and declare the names of the successful candidates.

28 AS RATIFIED BY THE 46TH ANNUAL316 ASSEMBLY November 16, 2014 Article XXXI By-Election

1. If a recount results in the leading candidates having the same number of votes, the Chief Electoral Officer shall call and conduct a by-election as soon as possible. Only members who were on the List of Electors for the first election are entitled to vote in such by-election.

2. In the event a vacancy arises in the position of President or Regional Vice President or Regional Board Member and a by-election is required in accordance with the MMF by-laws, such by election shall be held in accordance with the provisions of the Election By-Law.

Article XXXII Destruction of Ballots and Election Materia

1. Unless the Chief Electoral Officer is, within thirty (30) days after the date of the election or any recount or by-election, directed by a resolution of the Board of Directors of MMF or an order of a Court to retain election material, the ballots and such other election material as the Chief Electoral Officer may direct, shall be destroyed.

LOCAL BY-LAW MMF

This by-law of the MMF (the Federation) is intended to cover all Locals under the auspices of the Federation.

ARTICLE I

1. Interpretation

This by-law will be interpreted in accordance with and consistent with the Federation’s Constitution, by-law No. 1.

ARTICLE II

1. Definition of Metis

a. “Métis” means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation;

b. “Historic Métis Nation” means the Aboriginal people then known as Métis or Half-Breeds who resided in the Historic Métis Nation Homeland;

AS RATIFIED BY THE 46TH317 ANNUAL ASSEMBLY November 16, 2014 29 c. “Historic Métis Nation Homeland” means the area of land in west central North America used and occupied as the traditional territory of the Métis or Half-Breeds as they were then known;

d. “Métis Nation’ means the Aboriginal people descended from the Historic Métis Nation, which is now comprised of all Métis Nation citizens and is one of the “aboriginal peoples of Canada” within s.35 of the Constitution Act of 1982;

e. “Distinct from other Aboriginal Peoples” means distinct for cultural and nationhood purposes.

ARTICLE III

1. Membership (Local)

Each Local in the Federation shall consist of two (2) kinds of members:

Individual member – Individual members must be of legal age (18) to be entitled to vote or hold office in the Federation.

Associate member – Spouses, as defined by resolution of the Board of Directors, of individual members. Such resolution shall only be effective upon confirmation by the members in general meeting. Associate members shall have no vote and shall not hold office, and shall be entitled only to such benefits as may from time to time be determined by the resolution of the Board, upon confirmation by the members in general meeting.

ARTICLE IV

1. Membership Fees

Individual Member

The fee for individual membership shall be established by the Federation’s Board of Directors.

“Local” Member

The fee for “Local” membership shall be established by the Federation’s Board of Directors.

30 AS RATIFIED BY THE 46TH ANNUAL318 ASSEMBLY November 16, 2014 ARTICLE V

1. Locals

Registration

Any Metis who unite to form a “Local” may apply for registration in a Region of the Federation in which they are located. The Region will decide registration at its next Regional Meeting. Any applicant may appeal any decision of the Region to the Federation’s Board of Directors.

Location

Communities may form Locals which shall consist of a minimum of nine (9) individual members. No more than one (1) Local shall be established in any community. For this purpose, all villages and towns shall be considered as single communities.

Naming of Locals

Each Local shall be named according to their pleasure which must be approved by the Board of Directors.

Activities of Local

To organize the Metis people of their community.

To promote the objectives of the Federation.

To act as a Local Metis governance on behalf of Metis in their respective communities. These activities must be consistent with the Federation’s objectives.

To inform the members within their Locals of all matters that affect the Federation.

To participate at Regional meetings of the Federation.

To initiate programs to address the needs of their Metis membership in their respective Locals.

To establish and maintain a registry of Local Metis members.

To update member lists and send revised copies at least once every calendar year to the Regional and Head Office of the Federation.

AS RATIFIED BY THE 46TH319 ANNUAL ASSEMBLY November 16, 2014 31 2. Local Meetings

The Local shall have at least four (4) meetings per year with a quorum requirement of at least five (5) members.

Copies of minutes of Local meetings shall be sent to the Regional and Head Offices of the Federation.

Seven (7) days public notice is required to hold a duly-called meeting of the Local.

3. Local Transfers

All Local memberships are permanent and transferable from one Local to another within the Federation.

4. Local Executives

Each Local shall be represented by an Executive, which shall be a Chairperson, Vice-Chairperson and Secretary-Treasurer.

The Chairperson, Vice-Chairperson and Secretary-Treasurer shall all be elected at the same time for a four (4) year term beginning in 2006 and every four (4) years thereafter. Any two (2) of three (3) Local Executives shall be the signing Officers of the Local.

Duties/Responsibilities of Local Executives:

Chairperson

• Chief Executive Officer of the Local. • Chairs Local meetings. • Spokesperson on behalf of Local. • Calls and ensures that meetings are held. • Follows up on motions. • Is ex-officio member of all Local committees. • Performs other duties as directed by Local membership.

Vice-Chairperson

• Assumes all the responsibilities of the Chairperson in the absence of the Chairperson.

32 AS RATIFIED BY THE 46TH ANNUAL320 ASSEMBLY November 16, 2014 Secretary-Treasurer

• Keeps minutes of meetings and records and files such minutes as well as all correspondence and activities of the Local. • Assumes all responsibilities of the Chairperson in the absence of the Chairperson and Vice-Chairperson. • Reads minutes of previous meetings and correspondence at all Local meetings. • Responsible for all advertisement and notices regarding meetings, fund-raising notices and all other notices relating to the Local business. • Maintains and is responsible for all Local financial records, (e.g. bookkeeping, ledger, deposits, income, bank statements, etc.). • Presents financial statements to the membership at all Local meetings. • Second signing Local authority.

ARTICLE VI

1. Local Elections

Local elections will be governed in accordance with the Constitution and by-laws of the Federation.

ARTICLE VII

1. Meetings

The Chairperson or any two (2) executive members may call a Local meeting. Failure to call at least four (4) meetings per year will result in appeals to the Regional Board of Directors or to the Federation’s Provincial Board of Directors by any five (5) members of a Local.

AS RATIFIED BY THE 46TH321 ANNUAL ASSEMBLY November 16, 2014 33 NOTES

322 NOTES

323 NOTES

324 Published by: Manitoba Metis Federation Inc. 300-150 Henry Avenue Winnipeg, MB R3B 0J7 Canada

Phone: (204) 586-8474 Fax: (204) 947-1816 [email protected] www.mmf.mb.ca

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