Date: 20071207 Docket: CI 81-01-01010 (Winnipeg Centre) Indexed as: Manitoba Metis Federation Inc. et al. v. Attorney General of Canada et al. Cited as: 2007 MBQB 293
COURT OF QUEEN’S BENCH OF MANITOBA
BETWEEN: APPEARANCES:
2007 MBQB 293 (CanLII) MANITOBA METIS FEDERATION INC., ) For the Plaintiffs: YVON DUMONT, BILLYJO DE LA ) Thomas R. Berger, Q.C. RONDE, ROY CHARTRAND, RON ) James R. Aldridge, Q.C. ERICKSON, CLAIRE RIDDLE, JACK ) Harley I. Schachter FLEMING, JACK McPHERSON, DON ) M. Bartley ROULETTE, EDGAR BRUCE Jr., FREDA ) LUNDMARK, MILES ALLARIE, CELIA ) For the Defendant KLASSEN, ALMA BELHUMEUR, STAN ) Attorney General of Canada: GUIBOCHE, JEANNE PERRAULT, MARIE ) Robert A. Dewar, Q.C. BANKS DUCHARME and EARL ) Paul R. Anderson HENDERSON, ) Cary D. Clark ) Plaintiffs, ) For the Defendant ) Attorney General of Manitoba: - and - ) Heather S. Leonoff, Q.C. ) Jayne L. Kapac ATTORNEY GENERAL OF CANADA and ) ATTORNEY GENERAL OF MANITOBA, ) ) Judgment delivered: Defendants. ) December 7, 2007
TABLE OF CONTENTS
Introduction ...... 1
Overview of Trial Materials ...... 3
Historical Background • Facts up to July 15, 1870...... 11 • Facts Material to Implementation of Section 31 Grants...... 51 • Facts Material to Implementation of Section 32 Grants...... 86
Standing ...... 115
Limitation of Actions ...... 138
The Doctrine of Laches...... 153
Was There a Treaty or Agreement? ...... 160
2007 MBQB 293 (CanLII) The Manitoba Act and the Manner of its Interpretation...... 174
Interpretation of the Manitoba Act • The Integrity of the Crown ...... 178 • The Nowegijick Principle ...... 179 • Protection of Minorities...... 185 • Use of Hansard ...... 189
Interpretation of Section 31 of the Manitoba Act...... 190 • Aboriginal Title ...... 193 • Were the Métis of Manitoba, Indians?...... 203 • Fiduciary Duty ...... 212 • Honour of the Crown...... 217
The Manitoba Act – Section 31 – Conclusion ...... 221
The Manitoba Act – Section 32 – Conclusion ...... 231
Impugned Enactments • Provincial ...... 238 • Federal ...... 272
The Doctrine of Paramountcy...... 299
The Federal Power of Disallowance ...... 308
Implementation of Section 31 Grants...... 312
Implementation of Section 32 Grants...... 353
Conclusion ...... 390
Appendix – Authorities Provided
MacINNES J. 2007 MBQB 293 (CanLII) INTRODUCTION
[1] The plaintiffs assert that the Métis people of Manitoba have suffered an
historic injustice, namely, the loss of a land base which they were to have
received under the Manitoba Act, 1870 (Can.), 33 Vict., c. 3, S.C. 1870, c. 3,
reprinted in R.S.C. 1985, App. II, No. 8 (the “Act”), upon Manitoba’s entry into
the Canadian Confederation. They sue the defendants for certain declaratory
relief. Their purpose in seeking such relief is simply to assist them in future
negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong.
[2] The Manitoba Métis Federation Inc. (the “MMF”) is a Manitoba corporation, incorporated October 1, 1967. It says it presently represents approximately 130,000 Métis people resident in Manitoba.
[3] The individual plaintiffs are Métis, and allege they are descendants of persons referred to in the Act as “half-breeds” entitled to land pursuant to section 31, and to land and other rights under section 32 of the Act.
[4] None of the plaintiffs brings any claim for individual or personal relief.
[5] The declarations sought by the plaintiffs are as follows:
(1) that certain enactments (both statutes and orders in council) were
ultra vires the Parliament of Canada and the Legislature of
Manitoba, respectively, or were otherwise unconstitutional;
(2) that Canada failed to fulfill its obligations, properly or at all, to the 2007 MBQB 293 (CanLII)
Métis under sections 31 and 32 of the Act, and pursuant to the
undertakings given by the Crown;
(3) that Manitoba, by enacting certain legislation and by imposing
taxes on lands referred to in section 31 of the Act prior to the
grant of those lands, unconstitutionally interfered with the
fulfillment of the obligations under section 31 of the Act; and
(4) that there was a treaty made in 1870 between the Crown in right
of Canada and the Provisional Government and people of Red
River.
[6] For the reasons which follow, I am not prepared to grant any of the declarations sought by the plaintiffs and accordingly dismiss their claim.
[7] All of the parties sought costs in respect of this litigation. The general rule is that costs follow the event. But often, depending upon the nature and
circumstances of the litigation, the general rule is not followed. In this case,
none of the parties have argued in respect of costs. In the circumstances, I
intend to leave the matter of costs to the parties. If they are unable to reach
agreement as to disposition of costs, costs may be spoken to.
OVERVIEW OF THE MATERIAL (EVIDENCE AND ARGUMENTS) PROVIDED AT TRIAL
[8] There are 56 trial exhibits. Exhibit 1 consists of 58 three-ring binders 2007 MBQB 293 (CanLII) containing 2,068 documents, some of which are CD-ROMs containing voluminous
material and others of which, though in hard copy, are multi-paged. Many of the
documents within this exhibit were obtained from official archives. Of those,
many were in handwriting and many were in French. Many had to be translated from French to English or reproduced in typed form, or both. Counsel did an
excellent job of providing these documents or copies of them in legible form. In
many instances, the original text is difficult to decipher and there are therefore
uncertainties as to it. I am satisfied, however, that such shortcomings are not
material in deciding the case.
[9] The plaintiffs called only one trial witness, David Chartrand, president of
the MMF. As well, they read into the record certain answers provided by representatives of the defendants on examination for discovery and otherwise relied upon the documents filed as exhibits.
[10] Canada called four witnesses, three of whom, Dr. Gerhard J. Ens
(“Dr. Ens”), Ms. Catherine Macdonald (“Ms. Macdonald”), and Dr. Thomas
Flanagan (“Dr. Flanagan”), were expert witnesses. Dr. Ens and Ms. Macdonald are historians; Dr. Flanagan is a political scientist. Canada filed, by consent, the reports of those expert witnesses, namely:
! Report of Dr. Ens entitled “Settlement and Economy of the Red River
Colony to 1870”;1
! Report of Ms. Macdonald entitled “Events of the Red River Resistance of
1869-70”;2 2007 MBQB 293 (CanLII)
! Report of Dr. Flanagan entitled “Historical Evidence in the Case of
Manitoba Métis Federation v. the Queen”;3
! Report of Dr. Flanagan and Dr. Ens entitled “Métis Family Study”;4
! Report of Dr. Ens entitled “Migration and Persistence of the Red River
Métis 1835-1890”;5
! Report of Dr. Ens entitled “Manitoba Métis Study – The Métis Land Grant
and Persistence in Manitoba”.6
As well, Canada filed, by consent, the report of Steven E. Paterson entitled “Land
Grants for Loyalists”.7
1 Exhibit 14 2 Exhibit 16 3 Exhibit 18 4 Exhibit 19 5 Exhibit 35 6 Exhibit 36 7 Exhibit 44
[11] In addition, Canada called Bradley Morrison (“Mr. Morrison”), a lawyer
presently employed as a researcher with the Department of Indian and Northern
Affairs Canada and manager of Claims Litigation within the Manitoba region. He led a group of federal employees under the direction of Dr. Ens who prepared a series of maps and a booklet of those maps entitled “Métis Land Grants Manitoba
Act”. The booklet was filed as Exhibit 25 and the enlarged individual maps contained within the booklet were filed as Exhibits 28, 29, 31, 32, 33 and 34. 2007 MBQB 293 (CanLII)
Filed as Exhibit 24 was Mr. Morrison’s report entitled “Mapping of Métis Land
Grants Methodology”.
[12] Canada also read into the record certain answers from the examinations for discovery of Mr. Chartrand and the individual plaintiffs.
[13] Manitoba called Russell Davidson (“Mr. Davidson”) as a witness. He is a lawyer and is the senior deputy district registrar of the Winnipeg Land Titles
Office. He testified in respect of The Land Registry Act and The Real
Property Act of Manitoba and more specifically as to the procedures and activities of the Land Titles Offices in Manitoba. As well, he reviewed and provided an interpretation of many historical documents filed with the Land Titles
Offices pertaining to the grant and the landholdings, or disposition thereof, of
Métis under the Act.
[14] Manitoba also read into the record certain answers from the examinations for discovery of the individual plaintiffs.
[15] Following completion of the evidence, I received a 425-page written
argument from plaintiffs’ counsel, together with copies of statutes, federal and
provincial, federal orders in council, and seven 3-ring binders of legal authorities.
I then heard oral argument from plaintiffs’ counsel for two weeks.
[16] I received written argument from counsel for Canada consisting of 226 pages plus two appendices, one of which was an 85-page statement of material facts, and seven 3-ring binders of legal authorities. I heard oral argument from 2007 MBQB 293 (CanLII)
Canada’s counsel for approximately 3½ days.
[17] As well, I received a 73-page written argument from counsel for Manitoba together with a booklet of Manitoba statutes and two 3-ring binders of legal authorities. I heard oral argument from counsel for Manitoba for approximately
one day.
[18] Finally, I received a 52-page written document entitled “Plaintiffs’ Notes
for Reply” and heard argument in reply for approximately 2½ days.
[19] I have described the nature and volume of the materials provided during
the course of the trial and in argument for a particular reason. As is clear, the
material factual underpinnings of this case relate to events that occurred in or
around 1870; shortly before and for about 15 years thereafter. Obviously, none
of the participants in those events is alive. The live witnesses from whom I heard were Mr. Chartrand, whose evidence related essentially to the MMF in respect of the issue of standing in this litigation, and the experts to whom I have
referred who had done extensive historical research and compiled relevant historical documents. As well, Mr. Morrison, who had created documents based upon his interpretation of historical documents, and Mr. Davidson, who testified from an historical perspective advising of the practices of the Manitoba Land
Titles Office system and who interpreted historical documents pertaining to the landholdings of individuals shortly following 1870.
[20] Ms. Macdonald commented on the reliability of the historical evidence as it 2007 MBQB 293 (CanLII) pertained to her report.8 Her comments can be found at pp. 3 through 5 of her report under the heading “The Evidence”. Some of those comments are the following:
The available archival evidence for the Resistance [referring to the Red River Resistance 1869-70] is abundant but it displays defects in quality and coverage that are common with most historical evidence. All of the surviving sources need to be read in the light of the biases of their authors. …
. . . . .
The French Metis side of the conflict is less well served by the documents that have made their way into archives. Riel himself made a few attempts to record his version of events…. But Riel’s memoir is not particularly informative. In it he is concerned with pleading his case for an amnesty for himself and others who participated in the Resistance and factual explication was a secondary concern. …
For the crucial period of time between the arrival of the Canadian Dawson Road construction crew in late fall of 1868 and the first of the French Metis protest meetings in July of 1869, there are only a few sources with which to piece together what people were doing and saying within the French Metis community. Most important of these are Father Noel-Joseph Ritchot’s two notebooks in which he recorded a memoir of this early period of the Resistance and in which he wrote a record of the proceedings of meetings of the Metis National Committee between October 20 and November 6, 1869. These notebooks present some
8 Exhibit 16
evidentiary problems. They are extremely difficult to read. Quite apart from Ritchot’s illegible handwriting, the notebooks contain several torn pages and numerous large ink blots which obscure text. Philippe Mailhot, who wrote a Ph.D. thesis on Ritchot, contends that Ritchot deliberately tore pages and placed ink blots over passages of his notebooks in order to prevent people from reading what was on those pages. Mailhot thinks that Ritchot was thereby attempting to minimize his role in the Resistance. A further difficulty with the notebooks is that there is no indication of when they were composed except that internal clues point to a composition date sometime after the events described in Notebook 1. Mailhot’s contention cannot be proved conclusively one way or the other, but the ink blots and tears are too deliberately placed to have been accidental. However, even if Ritchot or someone else later edited his notebooks, the parts of the text that are still readable are valuable and cannot be discounted, though they should be used with caution. 2007 MBQB 293 (CanLII)
In my view, similar comments may be made about the writings of Father Noël-
Joseph Ritchot (“Ritchot”) for the period March 24 to May 28, 1870,9 referred to in this case as “Ritchot’s diary”.
[21] Lastly, Ms. Macdonald wrote:
For the purpose of describing the makeup and rationale’s behind factions, both the evidence in English and in French must be used cautiously. An opinion expressed in a letter by one individual, even if he or she was an influential person, cannot be extrapolated, by itself, to describe the opinion of a whole group of people.
These comments of Ms. Macdonald were made as part of her report. In my view, however, they have broader application than simply to her report. They should be taken to apply to the historical evidence that generally provides the factual basis for this entire case.
[22] A further need for caution, in my view, applies in respect of the
Parliamentary Debates, both those between May 2 and May 12, 1870, pertaining to the introduction of and debate upon the Bill that ultimately was
9 Exhibit 1-0005
passed as the Act and subsequent debates in Parliament from time to time
pertaining to that Act and to its implementation. I do not mean by these
comments to be in any way disrespectful of members of Parliament or of
politicians generally. However, in my view, when one reads the Parliamentary
Debates, one can discern the biases of the speaker, including biases dependent 2007 MBQB 293 (CanLII)
upon whether the speaker is a member of Government or of the Opposition.
This, in my view, is doubtless one of the several reasons for judicial decisions
which allow for the admissibility of such debates into evidence at trial, but
caution as to the degree of weight to be given to such debates.
[23] The plaintiffs took the position that with the historical documentation
available, it was tantamount to having the witnesses’ viva voce testimony,
particularly as regards the discussion or negotiations between the Red River 2007 MBQB 293 (CanLII)
delegates and Sir John A. Macdonald (“Macdonald”) and Sir George Étienne
Cartier (“Cartier”) relative to the passage of the Act. But having so argued, the
plaintiffs also argued that, when dealing with the question of implementation of
both sections 31 and 32 of the Act, one could not wholly rely upon written documents. They asserted that while documents such as abstract pages from a land registry office were provided no doubt with a high degree of accuracy, still no certain insight could be gained from such documents either as to what may
have proceeded or been incidental to the execution of such documents or as to
whether that which was recorded in the documents actually occurred. This, of
course, is one of the difficulties with this entire case where, in order to obtain
relief, a sound factual background must be provided whereas even the plaintiffs
acknowledge that while documents record information, there is contextual
uncertainty as to the degree of reliability of the documents.
[24] While it is unfortunate that this must be so, it is no different than many
other cases which have come before the courts, particularly aboriginal cases
which often in point of time are aged and historical.
[25] I was cautioned by counsel, particularly plaintiffs’ counsel, that my task is
not to rewrite history. For that I am thankful. Rather, my task is to decide the
issues raised in the litigation on the basis of the evidence introduced. But in
considering the evidence, I must be alive to the frailties of this kind of evidence, 2007 MBQB 293 (CanLII)
particularly from the standpoint of reliability and authoritative scope.
[26] While I do not purport to be rewriting history, I will, for purposes of context, set forth what I believe to be the relevant historical facts. I propose to set forth such facts under three separate headings:
(1) facts up to the effective date of the Act, July 15, 1870;
(2) facts material to the implementation of the section 31 grant; and
(3) facts material to the implementation of the section 32 grant.
I will then deal with the specific issues argued by the parties.
HISTORICAL BACKGROUND
(1) Facts up to the Effective Date of the Act, July 15, 1870
[27] In 1670, the Hudson’s Bay Company (the “HBC”), under license from the
British Crown, acquired Rupert’s Land, a vast land mass extending from Lake
Superior to the Rocky Mountains, including land in what is now the north central
United States.
[28] On June 12, 1811, the HBC granted a tract of land in Rupert’s Land to
Lord Selkirk. Without describing the tract in any detail, it included territory far beyond the boundaries of the Red River Settlement (the “Settlement”) of 1870.
[29] Lord Selkirk thereupon brought Scottish immigrants to Red River. They 2007 MBQB 293 (CanLII) settled in Kildonan Parish along the Red River north of the confluence of the Red and Assiniboine rivers (the “Forks”). In 1817, Lord Selkirk entered into a treaty with a number of Indian bands thereby effectively extinguishing Indian title to land which stretched two miles back from either side of the Red River from the point where it entered into Lake Winnipeg to a point south, located at what is now Grand Forks, North Dakota; and similarly two miles back from either side of the Assiniboine River from the Forks to a point west of present-day Portage la
Prairie. The two-mile strip of land on either side of both rivers became known as the “Settlement Belt”.
[30] In addition to these Scottish immigrants, the Settlement grew as a home for fur trade company employees who were retired from or surplus to the HBC and the North West Company. This was particularly so after the two companies merged in 1821 and there occurred a rationalization of operations, resulting in posts being closed and officers and servants being let go.
[31] Parishes were organized in the Settlement Belt, and to a lesser extent beyond, according to religion and language. Along the Red River, the parishes north of the Forks were all English speaking and Protestant. Those south of the
Forks were all French speaking and Roman Catholic. As well, parishes were organized along the Assiniboine River west of the Forks. Those parishes,
although still organized according to religion and language, were mixed; that is,
some were English Protestant parishes and some were French Catholic parishes. 2007 MBQB 293 (CanLII)
Many of the inhabitants, indeed the majority, were of mixed ancestry.
[32] I note that at the material time, those of mixed English and Indian
ancestry were called “half-breeds” and those of mixed French and Indian
ancestry were called “Métis”. The Act called both “half-breeds”. Today,
however, both are called “Métis”. In this judgment, my use of the phrase
“English half-breeds” will refer to those of English and Indian ancestry, and my use of the phrase “French Métis” will refer to those of French and Indian ancestry at the material time. My use of the word “Métis” will refer to both the
English half-breeds and the French Métis, then and now.
[33] For a period of time between Lord Selkirk’s death in 1820 and approximately 1835, the Settlement was administered by his executors in conjunction with the HBC. In approximately 1835, the HBC purchased the interest of Lord Selkirk’s estate in the grant which had been provided to him in
1811 and assumed the rights so granted.
[34] In 1835, the governor of the HBC commissioned George Taylor to survey settled portions of the Settlement (the “Taylor Survey”). The Taylor Survey covered approximately 20 miles on either side of the Forks along the Red River and approximately 25 miles from the Forks west along the Assiniboine River. It continued and/or confirmed landholdings in long, narrow lots that fronted on the rivers and stretched back the two-mile limit of the Settlement Belt.
[35] The Settlement was laid out in such lots, which were numbered from 1 to 2007 MBQB 293 (CanLII)
899 on the Red River and from 911 to 1528 on the Assiniboine River. Once the
Taylor Survey was completed, the HBC began entering the names of the legal owners of the lots (i.e., those who had received a form of title from the HBC) in a land registry book called “Register B”. But, registration of land ownership was voluntary and as land changed hands, registration of ownership often did not occur.
[36] As well, there was a tradition of land tenure in the Settlement based on occupation. This occurred largely, but not exclusively, outside the limits of the
Taylor Survey. Some of this land was inside the Settlement Belt and some of it was outside. Indian title had been extinguished respecting land inside the
Settlement Belt by reason of the Selkirk Treaty (or Peguis Treaty) of 1817, but continued respecting land outside the Settlement Belt. The HBC did nothing to prevent such land tenure based on occupation.
[37] Following the merger in 1821 of the North West Company and the HBC,
the new governor, Sir George Simpson, in order to persuade the large French
Métis settlement at Pembina (approximately 70 miles south of the Forks and
since 1818 in American territory) to relocate on British territory, granted their
leader, Cuthbert Grant (“Grant”), a tract of land on which to settle his kinsmen.
This land was on the Assiniboine River at White Horse Plains approximately 12
miles west of the Forks. Thus began a large French Métis settlement headed by 2007 MBQB 293 (CanLII)
Grant, first known as Grantown but thereafter as the Parish of
St. François-Xavier.
[38] In addition to their land, the river lot owners enjoyed haying rights. Over
the years a practice developed of people cutting hay on the lands immediately
beyond the depth of their river lot. Commencing in approximately 1839, the
governing authority in the Settlement, the Council of Assiniboia began to pass
laws which gave river lot owners within the surveyed portion of the Settlement
Belt the exclusive right to cut hay for a further two miles beyond but within the
width of their own river lot during certain periods of the year. Accordingly, in the
area of the Taylor Survey, not only did the landowners claim the first two miles
from the river (the “inner two miles”), they also claimed a right of use over the
next two miles (the “outer two miles”) for haying purposes. Beyond the four
miles was what was considered “the common”.
[39] Those lots which did not have access to an outer two miles due to the course of the river or the junction of the two rivers were given hay privileges in
other areas. Until the date of the transfer of Rupert’s Land to Canada, these landholdings and usages were the “custom of the country” recognized by the
HBC and the Council of Assiniboia.
[40] There was also a practice of utilizing land outside of the Settlement Belt for certain purposes, such as grazing or pasturing and cultivation. These lots have been called “park lots” and consisted of choice pieces of prairie land on which a settler would break and cultivate a few acres. 2007 MBQB 293 (CanLII)
[41] In the result, as of 1869, the system of land tenure in the Settlement was varied and the recording of landholdings was, at best, sporadic. However, there was a general acceptance of a land tenure system in the Settlement which existed in one of four ways, either:
(1) by way of freehold grants from the HBC;
(2) by way of grants of estates less than freehold from the HBC;
(3) by occupancy with the permission of the HBC within the Settlement
Belt, that is, where Indian title had been extinguished; and
(4) by peaceable possession outside the Settlement Belt, that is, where
Indian title had not been extinguished.
[42] In addition, some residents enjoyed rights of cutting hay and rights of common.
[43] In the early years of the Settlement, the economy was based primarily
upon farming and the buffalo hunt, both of which were essentially for
subsistence purposes only.
[44] Five acres was considered a large plot in the Settlement. Cultivated plots were kept small by the level of farm technology and the absence of a market for surplus production removed any incentive for enlargement. 2007 MBQB 293 (CanLII) [45] The buffalo hunt began in the 1820s as the buffalo were no longer located as close to the Settlement as once they had been. But until the 1840s, the main use of the buffalo hunt was for the purpose of personal or family consumption, namely, clothing and food which included the making of pemmican and some small sale of it. There were two hunts per year, the summer hunt, which generally departed in June and returned in late July or early August, and the fall hunt, the smaller of the two, which began in early October with the hunters returning in November.
[46] In the 1840s, the economy of the Métis began to change. The HBC monopoly began to weaken and some markets began to open up. The Métis increasingly took advantage of these opportunities and became more involved as traders. In particular, a buffalo robe trade emerged and the Métis found a market trading with both the HBC and others, including traders in the United
States, in return for cash.
[47] In 1844, a trading post at Pembina had the effect of bringing the
American market near the Settlement. From 1844 until 1869, there was a
significant increase in trade between the Settlement and St. Paul, Minnesota, and
a significant increase in the dollar value of fur sales.
[48] The buffalo robe trade involved not only the hunting and killing of the buffalo but its processing to a finished product ready for sale. The entire family
became involved in the operation. As a result, families were absent from the 2007 MBQB 293 (CanLII)
Settlement during the hunt. This new economic activity and the absence of
families from the Settlement which it necessarily entailed, resulted in a lessening
of the Métis’ pursuit of agriculture.
[49] The buffalo were becoming increasingly distant from the Settlement. But
the best robes were obtained when the animal’s coat was at its heaviest, namely,
in the winter. As a result, the buffalo robe trade lengthened and changed
somewhat the period of the hunt as it necessitated prolonged absences from the
Settlement for those involved, including leaving the Settlement to winter on the
plains. This also resulted in some leaving the Settlement permanently and
settling anew in areas closer to where the buffalo were located.
[50] 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 1869, the buffalo were so far west and south of Red River that the buffalo hunt no longer originated in the Settlement.
[51] Canada became a country in 1867 under The British North America
Act (the “Constitution Act, 1867”). It consisted of four provinces, Nova 2007 MBQB 293 (CanLII)
Scotia, New Brunswick, Quebec and Ontario, the western boundary of which was at the head of Lake Superior.
[52] The new country had no jurisdiction or authority west of present-day
Thunder Bay, but it had designs on further expansion. Section 146 of the
Constitution Act, 1867 provided for the admission of other colonies or territories, including “on Addresses from the Houses of the Parliament of Canada
… to admit Rupert’s Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve,…”
[53] To accommodate Canada’s intentions for expansion, the Imperial
Government agreed to accept from the HBC a surrender of that part of its 1670 grant which was known as the North-western Territory and Rupert’s Land and, ultimately, to cede that land to Canada.
[54] Accordingly, Canada was required to negotiate an agreement with the
HBC for the purchase of its interest in the land whereupon the HBC would surrender the land to Britain. In turn, Britain, upon its approval of the terms and
conditions for admission of Rupert’s Land into Canada, would accept the
surrender from the HBC and would cede the land to Canada.
[55] By address dated December 17, 1867, Canada requested that the Imperial
Government “unite Rupert’s Land and the North-western Territory with this 2007 MBQB 293 (CanLII)
Dominion”.
[56] On April 23, 1868, the Colonial Secretary in Britain advised that he was willing to recommend compliance with the request, but to do so would require an
Act of the Imperial Parliament. He placed a Bill before the Imperial Parliament which, effective July 31, 1868, became the Rupert’s Land Act, 1868 (U.K.),
31-32 Vict., c. 105.10
[57] The purpose of that Act was stated therein as being:
An Act for enabling Her Majesty to accept a Surrender upon Terms of the Lands, Privileges, and Rights of “The Governor and Company of Adventurers of England trading into Hudson’s Bay,” and for admitting the same into the Dominion of Canada.
The preamble to that Act provided, in part:
… It is expedient that the said Lands … so far as the same have been lawfully granted to the said Company, should be surrendered to Her Majesty….
Section 3 of that Act provided, in part:
10 Exhibit 1-0274
… provided, however, that such Surrender shall not be accepted by Her Majesty until the Terms and Conditions upon which Rupert’s Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an Address to Her Majesty from both the Houses of the Parliament of Canada in pursuance of the One hundred and forty-sixth Section of the British North America Act, 1867….
[58] This necessitated communications and negotiations between Canada and
Britain. These were carried on largely between Macdonald and Lord Granville
(“Granville”), British Secretary of State to the Colonies. In so doing, both
Macdonald and Granville made use of Sir John Rose, who had been Macdonald’s 2007 MBQB 293 (CanLII)
Minister of Finance from 1867 to 1869 and thereafter was Macdonald’s confidant,
working in London, England, and acting in some respects as a representative of
the Government of Canada, and Sir John Young (“Young”), who at the material time was the Governor General of Canada.
[59] These communications and negotiations between Canada and Britain occurred for the most part between mid 1869 and mid 1870. But shortly before and during that period, events occurred in the Settlement which affected the governance of the Settlement and were material to the entry of Rupert’s Land
into Confederation as the Province of Manitoba pursuant to the Act.
[60] Until Manitoba was created, Rupert’s Land, including the Settlement, was
governed by the HBC which had created a governing authority, namely, the
Council of Assiniboia. The Council’s makeup included members of the
Settlement, some of whom were Métis, with the HBC Governor at its head. In
the years leading up to union, that governor was William Mactavish
(“Mactavish”).
[61] By 1868, the Settlement was aware of the intended union of Rupert’s
Land with Canada.
[62] There existed some concern amongst the people in the Settlement as to the consequences of this union. How would it affect them, their culture and 2007 MBQB 293 (CanLII) customs? The concern was greater amongst the French Métis who were essentially French-speaking Catholics. They were fearful of an expected influx of
immigrants from Canada who would be English-speaking and Protestant, whose
coming, possibly in large numbers, they viewed as a threat to their language, religion and culture, including customs and way of life.
[63] This concern was exacerbated when the Canadian government sent a road building crew to the Settlement in late October 1868. Canada’s intention was in part at least to alleviate starvation in the Settlement.
[64] But Canada had not advised of this intended activity and the first notice that Mactavish or the community had of the expedition was the arrival of its crew superintendent at the Settlement on October 27, 1868 to seek permission from
Mactavish to begin work. He granted permission, but the unexpected presence of the work crew and its activities upset some of the residents, in particular, certain of the French Métis who were living on river lots which had not been formally granted to them by the HBC.
[65] Later, in June 1869, some French Métis came upon individuals pacing out
lots near St. Norbert, supposedly for their own use. They confronted the
individuals who withdrew. On July 5, 1869, the French Métis of St. Norbert met.
They formed patrols to keep strangers from establishing themselves on the land.
[66] On July 29, 1869, William Dease (“Dease”) and several other prominent
French Métis called a public meeting at the courthouse. Dease argued that the
£300,000 Canada had agreed to pay the HBC for the transfer of lands was really 2007 MBQB 293 (CanLII)
money which belonged to and should be paid to the people of the North-West as
the real owners of the land. Several French Métis at the meeting, including John
Bruce (“Bruce”) and Louis Riel (“Riel”), spoke against Dease’s plan and it was
soundly defeated.
[67] During this period the Settlement was not kept officially informed of the
developments between the Imperial Government and Canada. Rather, the
information received in the Settlement came via newspapers and rumor.
[68] Additional anxiety was aroused when, on August 20, 1869, a survey party
from Canada arrived at the Settlement under the leadership of Colonel John S.
Dennis (“Dennis”). The presence of Dennis and his survey crew unsettled the
French Métis in particular and especially those who occupied land without title from the HBC.
[69] An unfortunate series of developments followed due in part again to a lack
of communication between Canada and those sent by Canada to deal with the
land, and the people of the Settlement.
[70] On October 11, 1869, a survey crew projecting a baseline on the “hay
allowance” in St. Norbert was confronted by 16 French Métis, among them Riel.
The survey crew was turned back with Riel telling the crew it “had no right to
make surveys without the express permission of the people of the Settlement”. 2007 MBQB 293 (CanLII)
The crew withdrew from St. Norbert and was later directed by Dennis to survey
closer to the English parishes.
[71] From October 16 to 20, the French Métis held meetings at St. Norbert and
St. Vital. They formed the Métis National Committee with Bruce as President and
Riel as Secretary and strategized as to what they would do.
[72] During the same period, October 1869, Macdonald sent William McDougall
(“McDougall”) to Rupert’s Land with a commission as Lieutenant Governor. The
intent was that McDougall would be present to assume control when the
expected transfer of Rupert’s Land to Canada, scheduled for December 1, 1869,
took place.
[73] The Métis National Committee was aware this had occurred. On
October 21, 1869, a barrier was erected near St. Norbert on the road leading
from the U.S. border to Fort Garry and a dispatch was sent to McDougall warning
him not to enter the territory without the permission of the Committee.
[74] Nevertheless, on November 2, 1869, McDougall tried to enter Rupert’s
Land but was turned back by a mounted French Métis patrol. On that same day,
Riel and the French Métis seized Fort Garry, which was the Settlement’s centre
and principal fortification, and mounted a guard of approximately 120 French
Métis to defend it.
[75] Following the French Métis takeover of Fort Garry on November 2, Riel set
out to expand support in the Settlement for what they had done. On 2007 MBQB 293 (CanLII)
November 6, 1869, he issued a public notice inviting the English parishes in the
Settlement to send 12 representatives to meet with a similar number of
representatives from the French parishes to form one body to consider the plight of the Settlement.
[76] On November 16, 1869, those representatives, known as the Convention of 24, convened at the courthouse in Fort Garry surrounded by French Métis guards. On November 23, Riel announced that the French representatives intended to form a provisional government and invited the English representatives to join them. The English representatives were taken aback by this development. They said they would have to consult the people of their parishes as they had no authority to do so. The meeting was adjourned until
December 1.
[77] The evidence is clear that by at least mid October 1869, Macdonald was aware of the conditions and unrest in the Settlement and clearly understood their
significance. An agreement had been reached between Canada and the HBC for purchase of the territory with the anticipated transfer date of December 1, 1869.
Until then, however, the territory remained part of British North America.
Canada had no authority over it. The HBC was in charge. But with the anticipated transfer, the authority of the HBC and its willingness to actively govern the territory was on the wane and was compounded by the serious illness of Mactavish. And, of course, the French Métis had taken control of Fort Garry. 2007 MBQB 293 (CanLII)
In the circumstances, there was really no authority within the Settlement willing, able and lawfully entitled to govern.
[78] 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.
[79] Macdonald concluded that the best approach would be to postpone the transfer, including the payment of the money (£300,000) to the HBC. This would result, he thought, in the HBC or Britain having to address the insurrection as the governing authority of Rupert’s Land and would avoid Canada having to act. Aside from the logistics problem above described, Macdonald was concerned that if Canada had to act, its conduct might create long-lasting
animosity between the inhabitants of the Settlement and the government, which
could detrimentally affect the union of Rupert’s Land with Canada, the
development of the new province, and Canada’s vision of expansion to the
Pacific.
[80] Accordingly, Macdonald told Young of Canada’s desire for a delay in the
transfer of Rupert’s Land and the North-western Territory until quiet possession
could be given.11 On November 26, 1869, the Governor General cabled 2007 MBQB 293 (CanLII)
Granville, communicating the request for delay.12 Granville rejected it. But in the meantime, because of this concern and request, Macdonald, on November
27, 1869,13 wrote McDougall advising him to stay in the United States and not to
proclaim his authority over the territory on December 1 as he had been
previously directed to do.
[81] Regrettably, in the early morning hours of December 1, not having
received Macdonald’s November 27th letter, McDougall entered a short distance
into Rupert’s Land and read his proclamation of takeover. The proclamation was
posted in the Settlement.
[82] The Convention of 24 which was to meet in any event on December 1 did
so, and the proclamation was read. A discussion then ensued as to the rights of
11 Exhibit 1-0329 12 Exhibit 1-0330 13 Exhibit 1-0332
the people of the Settlement and as to a guarantee of those rights. The French
Métis drew up a list of rights consisting of 15 clauses (the first list of rights).14
[83] The list was discussed and adopted by the Convention of 24 as the conditions upon which the people of Rupert’s Land would enter into
Confederation. The list provided amongst other things that Rupert’s Land would join Canada as a territory, not a province. It required that Canada conclude and ratify treaties with the several tribes of Indians in the territory “to ensure peace 2007 MBQB 293 (CanLII) on the frontier”. But, it made no provision for denominational schools or for a land grant to the children, including the children of the Métis.
[84] Upon publishing his proclamation, McDougall also issued a commission to
Dennis appointing him his Lieutenant and Conservator of the Peace.15 Dennis was given the responsibility of raising a force to “attack, arrest, disarm or disperse the said armed men so unlawfully assembled”.
[85] On December 6, 1869, Dennis published his commission in the Settlement with a notice of his own attached to the bottom. He called upon all loyal men of the North-western Territory to help him accomplish this. Over the next short period, attempts were made to rally members of the community against the
French Métis. However, upon seeing the first list of rights, the community considered them reasonable and was not prepared to become involved in a
14 Exhibit 1-0344 15 Exhibit 1-0339
conflict with the French Métis who had been and were residents of the
Settlement.
[86] The result of all of this was that Canada was now effectively but not
legally in charge of the territory and without any ability to gain control of its
governance. Thus, Macdonald and Canada had to find a way to maintain peace in the Settlement while obtaining approval from Britain of the terms and
conditions upon which Rupert’s Land would be admitted into Canada, and while 2007 MBQB 293 (CanLII)
arranging for the transfer of Rupert’s Land to Canada.
[87] To this end, Donald A. Smith (“Smith”), Chief Agent of the HBC at
Montreal, was sent to the Settlement as a Special Commissioner. He followed
shortly upon two others, Reverend Thibault and Colonel De Salaberry, who had
been sent in a similar capacity. Smith arrived at the Settlement shortly after
mid-December 1869. He reported to Macdonald16 and Macdonald wrote him on
January 3, 1870.17 In his letter, Macdonald stated:
I have read again the claims set up by the insurgent Half-breeds, some of which are altogether inadmissible, and I now proceed to state to you what we are willing to concede.
He then provided some detail of that.
[88] Macdonald also wrote in his letter:
You are authorized, to invite a delegation of at least two residents to visit Ottawa for the purpose of representing the claims and interests of Rupert’s Land. The representation of the Territory in Parliament will be a matter for discussion and arrangement with such delegation.
16 Exhibit 1-0365 17 Exhibit 1-0372
And:
The Indian claims, including the claims of the Half-breeds who live with and as Indians, will be equitably settled.
There is no general Homestead Law in Ontario as you state in your letter, but you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.
These are, I think, the principal points alluded to in your letter,…
[89] Smith met with the community on January 19 and 20, 1870. Following 2007 MBQB 293 (CanLII) this meeting, what had been the Convention of 24 was expanded into the
Convention of 40 (20 French and 20 English representatives).
[90] The Convention of 40 met between January 25 and February 10, 1870.
The newspaper, The New Nation, provided an ongoing account of the proceedings of the Convention of 40 during that period.18 On February 5, according to a report in The New Nation, Smith, in speaking to the Convention of
40, said:
I have now on the part of the Dominion Government and as authorized by them to invite a delegation of the residents of Red River to meet and confer with them at Ottawa…. A delegation of two or more of the residents of Red River — as they may think best — the delegation to confer with the Government and Legislature, and explain the wants and wishes of the Red River people, as well as to discuss and arrange for the representation of the country in Parliament....
[91] On February 10, the Convention of 40 agreed to an amended list of rights
(the second list).19 While somewhat different than the first list, it still provided that the area would unite with Canada as a territory. Provincehood would follow
18 Exhibit 1-0386 19 Exhibit 1-0394
at some future time. The demand for the conclusion of treaties with the several
Indian tribes of the territory continued and there was provision for voting rights
but which excepted “uncivilized and unsettled Indians”. Still, however, there was
no provision for denominational schools or for a land grant to the children.
[92] During this period, Macdonald continued to press Granville for
confirmation that Britain would send troops to ensure a peaceful transfer of the
territory to Canada. Granville ultimately confirmed that Britain would do so but 2007 MBQB 293 (CanLII)
imposed two conditions, variously worded but in essence, that simultaneous with
the commencement of the expedition, the territory would be taken over by
Canada, and that reasonable terms would be arranged with the Red River people
so as to take away from the expedition any appearance of coercion.
[93] Unrest continued within the Settlement during the period December 1,
1869 through February 1870. This included attempts or threatened attempts to
overthrow Riel and his governing party. There were arrests made by Riel and his
followers, releases from arrests, and in some cases re-arrests of opponents who while under arrest were imprisoned in Fort Garry.
[94] Thomas Scott, who had been arrested and in early January had escaped from prison in Fort Garry, was re-arrested and imprisoned. On March 4, following a brief court martial, Thomas Scott was executed.
[95] In the final days of the Convention of 40, the representatives agreed to form a Provisional Government and to send three delegates to Ottawa. The
delegates were Ritchot, Judge John Black (“Black”), and Alfred Scott. They were each provided with a letter of instructions dated March 22, 1870 and a further list of rights (the third list) from the Provisional Government.20
[96] The third list provided, amongst other things, for the territories known as
Rupert’s Land and North-western Territory to enter Confederation as a province and for the local legislature of the province to have full control over the public lands of the province. The provision as to treaties remained as did the provision 2007 MBQB 293 (CanLII) excepting Indians from the right to vote. However, there still was no provision for denominational schools or for a land grant for children.
[97] The letters of instruction told the delegates that they were free to use their judgment with respect to certain of the clauses on the list of rights but that certain others were compulsory. Moreover, the delegates were specifically told that they were not empowered to conclude, finally, any arrangements with the
Canadian government.
[98] The third list of rights was not the final list. It appears that Ritchot carried a list that differed from the third list.21 It included, for the first time, a demand for denominational schools, and the first clause of the list had also been added to provide for a senate analogous to Quebec’s Upper House. Still, however, there was no provision for a children’s land grant.
20 Exhibit 1-0424 21 Exhibit 1-0431
[99] The delegates left the Settlement on March 24, 1870 and arrived in
Ottawa on April 11. In due course, discussions commenced between the
delegates from Red River and Macdonald and Cartier as representatives of
Canada.
[100] In addition, Granville sent Sir Clinton Murdoch (“Murdoch”) to Ottawa, not
to directly participate in the discussions but to be present and available to
Macdonald and Cartier so that Granville might be kept apprised of developments 2007 MBQB 293 (CanLII)
in the discussions and he, Granville, might keep Macdonald and Cartier apprised
of Britain’s position in respect of them. As well, Lord Northcote was present
from Britain apparently representing the interests of the HBC though he, too, did
not participate in the discussions.
[101] The discussions between the Red River delegates and Macdonald and
Cartier began on April 25, 1870. On May 2, Macdonald introduced for first
reading in Parliament the Bill that was to become the Act, although the Bill was
not presented in Parliament in printed form until May 4, 1870.
[102] Some understanding of the discussions between the Red River delegates
and Macdonald and Cartier can be gleaned from a series of documents, including
Ritchot’s diary,22 excerpts from Northcote’s diary,23 the speeches made by
Macdonald and Cartier in Parliament concerning the Bill,24 and other documents.
22 Exhibit 1-0005 23 Exhibits 1-0436 and 1-0477 24 Exhibit 1-0467
[103] It is clear from the evidence that Macdonald and Cartier intended that
Rupert’s Land would enter Confederation as a territory not as a province, with
Canada having legal jurisdiction and control over and effectively governing the territory. And, based upon the first and second lists of rights, this, too, was the intent of the Settlement. But the third list and fourth list (carried by Ritchot alone) had the territory entering as a province with the same rights as were enjoyed by the four extant provinces of Canada, including ownership over the 2007 MBQB 293 (CanLII) public lands. And this was the position advanced by the Red River delegates in the discussions.
[104] Macdonald and Cartier ultimately accepted the creation of the new province but on the condition, unlike the four extant provinces, that Canada would retain ownership of the public land. Insight into the reasons for that is found in excerpts from Ritchot’s diary, Northcote’s diary and from speeches of
Macdonald and Cartier in Parliament.
[105] In his diary, Ritchot records an entry for Wednesday, April 27:25
Wednesday, at 10 o’clock, we met again at the house of Sir George. Sir John and Sir George were present. They presented us with a draft of a bill, which we discussed at length, then came the question of lands and the control of lands. The plight of the Company played a certain role here, the sale approved by England, the rights of the Indians, the survey, the works to be undertaken, etc. …
[106] Northcote also kept a diary of events. He recorded the following discussion on May 2, 1870 between himself and Cartier as follows:26
25 Exhibit 1-0005, page 140 26 Exhibit 1-0436, pages 96 and 97
He [referring to Cartier] said, “We propose to form a small province and to give it a constitution which will be fit for it, but we do not mean to give the local legislature power over the lands, because we have to provide for the extinction of the Indian title, for our engagements to the H.B. Co., and for the construction of a Railway. We therefore mean to keep the power of dealing with the lands in our own hands, making a larger contribution to the provincial expenses than we usually do in consideration of our doing so. But we propose to allot 1,500,000 acres, or thereabouts, to the half-breed population, who seem to have a kind of Indian claim to some land.” I asked, “How are these 1,500,000 acres to be given? Will a block of land be set apart, and will not this affect the Company’s claim?” He said, “It cannot affect the Company’s claim. The Company’s bargain with Canada takes precedence of any other, and if we break it you will have a claim for indemnity from Canada, which I suppose you won’t object to.” I understood him to say further that there 2007 MBQB 293 (CanLII) would not be a block set apart for the half-breeds, but that each person whose claim to land was recognised would receive an order entitling him to claim his allotment at any time.
I note the language attributed to Cartier which would suggest that he understood the difference between the Indians and the Métis in respect of land.
As regards the Indians, he said, “… we have to provide for the extinction of the
Indian title….” As regards the Métis, he said, “But we propose to allot 1,500,000 acres, or thereabouts, to the half-breed population, who seem to have a kind of
Indian claim to some land.”
[107] On May 4, Northcote recorded the following diary entry:27
I afterwards saw Sir John Macdonald, who showed me the clauses in the bill which affect the Company’s claims. They seem satisfactory. I asked him how the allotments to the half-breeds were to be made, and he said that when blocks were set out the Government would make provision for giving lots to such of the half-breeds as were claimants, taking care not to put them all together.
[108] On May 2, 1870, when Macdonald was speaking in Parliament on the
27 Exhibit 1-0436, page 103
introduction of the Bill for first reading, he said:28
… the object of the residents had been to obtain possession of the whole country. They wished Rupert’s Land made into one Province and to have all the land within the boundary as in other Provinces. … It was pointed out that it was impossible to hand over the country, to be legislated for by the present inhabitants. He pointed out that the Territory had been purchased for a large sum from the HB Co., that settlement had to be made with the Indians, the guardianship of whom was involved, that the land could not be handed over to them, as it was of the greatest importance to the Dominion to have possession of it, for the Pacific Railway must be built by means of the land through which it had to pass.
Again, no reference is here made to the Métis, but to the Indians. 2007 MBQB 293 (CanLII)
[109] And on May 9, 1870, Cartier in Parliament said:29
The land question was the most difficult one to decide of any connected with the measure; it was one of the most important connected with the welfare of the Territory; it would soon be necessary to construct a railway through Red River and consequently the Dominion Parliament would require to control the wild lands. If the lands were left in the hands of the Local Parliament there might be great difficulty in constructing the British Pacific Railroad …
[110] The foregoing provides expression of the reasons of Macdonald and
Cartier for Canada retaining ownership of the public lands, and as well, their intentions respecting the Métis land grant.
[111] It appears that the Red River delegates understood on April 27 that
Canada would retain ownership of the public lands, as it was only when that fact was made clear to the Red River delegates that the idea of the children’s land grant first emerged. The first entry in Ritchot’s diary concerning it appears on
April 27, 1870, though in very general terms.
28 Exhibit 1-0467, page 1319 29 Exhibit 1-0467, page 1446
[112] According to Ritchot’s diary, the Red River delegates met at Cartier’s house on April 28. They were given a draft of a printed Bill and began to examine it. There was no provision in the Bill pertaining to a children’s land grant. Macdonald was indisposed, and the examination was therefore postponed until April 29. On April 29, Macdonald was still indisposed and did not attend.
The delegates discussed the Bill with Cartier. Their discussion included the question of a children’s land grant, its size and conditions. 2007 MBQB 293 (CanLII)
[113] The delegates next met Cartier and Macdonald at Cartier’s house on
May 2 at 10:00 a.m. Ritchot’s diary records:30
… Examination and discussion of the draft bill; land question. The ministers offered 1,200,000 acres of land to be distributed among the children of the métis. We discuss anew the form or manner of distributing the lands. We continued to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say: The land will be chosen throughout the province by each lot and in several different lots and in various places, if it is judged to be proper by the local legislature which ought itself to distribute these parcels of lands to heads of families in proportion to the number of children existing at the time of the distribution; that these lands should then be distributed among the children by their parents or guardians, always under the supervision of the above mentioned local legislature which could pass laws to ensure the continuance of these lands in the métis families.
The diary then records “… that evening Sir John revealed in Parliament the tenor of the Bill and explained it.”
[114] On May 2, 1870, Macdonald wrote out in his own hand the following:31
That in order to compensate the claims of the half-breed population, as partly inheriting the Indian rights, there shall be placed at the disposal of the local Legislature one million and a half acres of land to be selected anywhere in the territory of the Province of Manitoba, by the
30 Exhibit 1-0005, page 143 31 Exhibit 1-0468
said Legislature, in separate or joint lots, having regard to the usages and customs of the country, out of all the lands now not possessed, to be distributed as soon as possible amongst the different heads of half breed families according to the number of children of both sexes then existing in each family under such legislative enactments, which may be found advisable to secure the transmission and holding of the said lands amongst the half breed families To extinguish Indian claims --
[115] On the evening of May 2, Macdonald made a speech in Parliament in which he introduced and reviewed the Bill. While this was taken as first reading, the Bill was not presented in printed form to Parliament at that time. Concerning 2007 MBQB 293 (CanLII) the lands of the province he said:32
… With respect to the lands that are included in the Province, the next clause provides that such of them as do not now belong to individuals, shall belong to the Dominion of Canada, the same being within boundaries already described. There shall, however, out of the lands there, be a reservation for the purpose of extinguishing the Indian title, of 1,200,000 acres. That land is to be appropriated as a reservation for the purpose of settlement by half-breeds and their children of whatever origin on very much the same principle as lands were appropriated to U.E. Loyalists for purposes of settlement by their children. This reservation, as I have said, is for the purpose of extinguishing the Indian title and all claims upon the lands with the limits of the Province.
And he went on to say:33
… It is, perhaps, not known to a majority of this House that the old Indian titles are not extinguished over any portion of this country, except for two miles on each side of the Red River and the Assiniboine. The lands that have been granted by deed or license of occupation by the Hudson’s Bay Company, run from the water or river bank on each side for two miles. But from a practice that has arisen from necessity, and that has been recognized by the local laws there, in the rear of each of these farms or tracts of land held by the farmers or settlers, there is a right of cutting hay for two miles immediately beyond their lots. That is a well understood right. It is absolutely required by these people and excites in them equal interest. The entire extent and value of those rights cannot be well established or fixed here, and it is therefore proposed to invoke the assistance of the Local Legislature in that respect, and to empower it to provide, with the express sanction of the Governor General, for the use
32 Exhibit 1-0467, page 1302 33 Exhibit 1-0467, page 1303
in common of such lands by those inhabitants who may wish to avail themselves of it. …
… [I]t is proposed to invoke the aid and intervention, the experience of the Local Legislature upon this point, subject to the sanction of the Governor General. The Government hope and believe that this measure or a measure involving the principle which I just mentioned will be satisfactory to the people of all classes and races in that country.
[116] And Cartier spoke in respect of the Bill and in particular the land grant.
He said:34
… The land, except 1,200,000 acres, was under the control of the 2007 MBQB 293 (CanLII) Government, and these were held for the purpose of extinguishing the claims of the half-breeds, which it was desirous not to leave unsettled, as they had been the first settlers, and made the Territory. These lands were not to be dealt with as the Indian reserves, but were to be given to the heads of families to settle their children. The policy, after settling these claims, was to give away the land so as to fill up the country.
[117] Cartier was asked whether the Constitution (that is, the Bill) was to be submitted to the people before being passed. He responded, “No.”35
[118] Later in the Parliamentary debate on May 2, having to do with the issue of the land grant, Macdonald said:36
… [T]he reservation of 1,200,000 acres which it was proposed to place under the control of the Province, was not for the purpose of buying out the full blooded Indians and extinguishing their titles.
There were very few such Indians remaining in the province, but such as there were they would be distinctly under the guardianship of the Dominion Government. The main representatives of the original tribes were their descendants, the half-breeds, and the best way of dealing with them was the same as United Empire loyalists had been dealt with, namely giving small grants of land for them and their children.
34 Exhibit 1-0467, page 1309 35 Exhibit 1-0467, page 1311 36 Exhibit 1-0467, pages 1329 and 1330
[119] There was opposition raised to the Bill in debate and there were
suggestions for amendment. Ultimately, Macdonald said that the Bill was, of
course, open to amendment.
[120] On May 3, 1870, there was further debate in Parliament. The Hansard
Debates evidenced strong animosity on the part of some members towards Riel and his allies, especially due to the insurrection and the murder of Thomas Scott.
Annoyance was expressed and the suggestion made that this Bill was the 2007 MBQB 293 (CanLII) product solely of negotiations with delegates selected and empowered by Riel.
Macdonald denied this. As well, he reiterated that the delegates were representatives of the people of Red River having been elected by a council of the inhabitants. They were not representatives of Riel.
[121] In his diary, Ritchot records that on May 3, the delegates had discussions with Cartier as to including Portage la Prairie within the province. The boundaries of the province in the Bill introduced for first reading did not include
Portage la Prairie. The delegates agreed to the inclusion of Portage la Prairie but wanted the size of the land grant increased.
[122] In the late afternoon, the delegates met with the Governor General. The
Governor General introduced them to Murdoch saying that he had been sent by the Imperial Crown to help settle the affairs of the North-west with the delegates if the delegates could not reach an understanding with Canada.
[123] As well, on May 3, a telegram37 was sent by Young to Granville stating:
Negotiations with Delegates closed satisfactorily – A Province named Manitoba erected….
[124] And by telegram dated May 4, 1870,38 from Ritchot to Thomas Bunn
(“Bunn”), Secretary of State for the Provisional Government, at Red River,
Ritchot reported:
Bill erecting Province of Manitoba introduced before Parliament. We find it satisfactory. Other points to be settled. We are confident of amicable
and acceptable arrangements. 2007 MBQB 293 (CanLII)
[125] An entry dated May 5 appears in Ritchot’s diary as follows:39
… the Bill appeared very much modified. Several clauses displeased me fundamentally. I saw our colleagues and some friends. We saw Sir George and Sir John; we complained to them.
[126] The printed Bill was presented to Parliament by Macdonald for the first
time on the evening of May 4, 1870. There were material changes to it
compared to that which was introduced and received first reading on May 2. In
particular, Portage la Prairie was now included within the province and the land
grant was increased from 1,200,000 to 1, 400,000 acres.
[127] The Bill introduced on May 4 contained as clause 26 (which became
section 30 of the Act) the general provision that all ungranted or wastelands in
the province would be vested in the Crown and administered by Canada.
[128] Clause 28 (which became section 32 of the Act) contained provision
37 Exhibit 1-0472 38 Exhibit 1-0473 39 Exhibit 1-0005, page 147
concerning the quieting of titles for those settlers who had either received titles from the HBC or had squatted upon land both within and outside the Settlement
Belt.
[129] And as to the children’s grant, clause 27 of the Bill (which became section 31 of the Act) provided as follows:
27. 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 2007 MBQB 293 (CanLII) 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 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.
[130] Macdonald’s copy of the Bill had a note endorsed upon it immediately following clause 27 which read:
But the appropriation hereinbefore made will be subject to the requirement of Canada for the same or any part thereof for Railway purposes or for any public works or purposes whatsoever.
This endorsement did not form part of the Bill, but is consistent with his and
Cartier’s comments as they appear to have expressed them to the delegates on
April 27 concerning the lands generally, as they expressed in Parliament, and as
Cartier appears to have expressed to Northcote.
[131] The Hansard Debates record that on May 4, 1870, Macdonald moved second reading of the Bill. He then spoke to the increase in the size of the land
grant and referred specifically to the provisions contained in clauses 26, 27 and
28 of the Bill.
[132] As regards clause 27, he said:40
… Those clauses referred to the land for the half-breeds, and go toward extinguishing the Indian title. If those half-breeds were not pure-blooded Indians, they were their descendants. There were very few full-blooded Indians now remaining, and there would not be any pecuniary difficulty in meeting their claims. Those half-breeds had a strong claim to the lands, in consequence of their extraction, as well as from being settlers. The
Government therefore proposed for the purpose of settling those claims, 2007 MBQB 293 (CanLII) this reserve of 1,400,000 acres. The clause provided that the lands should be regulated under Orders in Council by the Governor General, acting through the Lieutenant Governor, who should select such lots or tracts in such parts of the Province as he might deem expedient to the extent aforesaid, and divide the same among the children of half-breeds — heads of families. No land would be reserved for the benefit of white speculators, the land being only given for the actual purpose of settlement. The conditions had to be made in that Parliament who would show that care and anxiety for the interest of those tribes which would prevent that liberal and just appropriation from being abused.
[133] The May 5 entry in Ritchot’s diary to which I earlier referred …41
… the Bill appeared very much modified. Several clauses displeased me fundamentally. I saw our colleagues and some friends. We saw Sir George and Sir John; we complained to them.
… continued as follows:
… They declared that in practice it amounted to the same thing. For us they promised that they would give us by order in council, before our departure, assurance of the carrying out of our verbal understandings; but that for the present it would be impossible to get the Bill passed if one changed its form, that they would have a bad enough time to get it passed just as it was, that in any case we had nothing to fear, our verbal agreements were known and approved by the ministry who had promised to give us the order in council for the execution of our understandings.
The two ministers seeing that we were strongly opposed promised us, among other things, to authorize by order in council the persons we would choose to name ourselves as soon as might be after the Bill should
40 Exhibit 1-0467, page 1359 41 Exhibit 1-0005, page 147
be passed — to form a committee charged with choosing and dividing, as may seem good to them, the 1,400,000 acres of land promised. I promised for my part to take the matter into consideration and to yield to their desire, if I could convince myself that I could do it. I saw several friends afterwards who assured me that that would not only be well, but even better. Concerning a great number of comments on my part they said that in all events the Bill as edited was advantageous for us, that it was necessary to strive to get it passed.
[134] Debate resumed in Parliament on May 5. Continued opposition was expressed. Ultimately, Macdonald said full opportunity would be allowed for
42
discussion in Committee. The Bill then received second reading and was 2007 MBQB 293 (CanLII) referred to Committee for discussion the next day. Debate on the Bill did not continue the next day as Macdonald was sick.
[135] Ritchot records in his diary that on May 6,43 “[a]fter a more intense scrutiny of the Bill we went anew to see the ministers, Sir John and Sir George.”
He records discussion of a portion of clause 28 and that he was given assurance of the “desired guarantees” before their departure. As well, he records, “It is impossible to get the Bill passed, if it is changed in this respect.” And he continues:
Seeing that it is impossible to obtain what we ask, we content ourselves with remarking that it would only be in accord with the conditions that we made between us, and which we mutually accept, that we can take it upon ourselves to get them adopted by our people, that without that it would be impossible to see the matter through.
[136] Macdonald was again absent from Parliament on May 7. Nevertheless, the Bill was referred to Committee and debate ensued, some of it in the nature
42 Exhibit 1-0467, page 1389 43 Exhibit 1-0005, pages 147 and 148
of strong opposition to the children’s grant.
[137] On May 9, debate in Committee continued. In the course of the debate,
Cartier, in response to the remarks of another member threatening to move for deletion of clause 27, responded that he hoped the member would not press such motion. Cartier continued:44
… The land question was the most difficult one to decide of any connected with the measure; it was one of the most important connected with the welfare of the Territory; it would soon be necessary to construct 2007 MBQB 293 (CanLII) a railway through Red River and consequently the Dominion Parliament would require to control the wild lands. If the lands were left in the hands of the Local Parliament there might be great difficulty in constructing the British Pacific Railroad, although the Dominion Government held the control of the lands it was only just to give something in return for them. Thus arose the reserves. Was it not just and liberal to provide for the settlement of those who had done so much for the advancement of the Red River country — the Indian half-breeds? The intention of the Government was to adopt a most liberal policy with respect to the settlement of the Territory.
The Opposition moved to delete clause 27 from the Bill, but that motion was defeated.
[138] Ultimately, on May 10, after extensive debate and opposition motions for deletion of many of the clauses in the Bill, the Bill was read a third time and passed. The Bill went to and passed the Senate and on May 12 received Royal
Assent. By telegram that day45 to Granville, Young reported, “Bill for Govt. of
N.W. passed sanctioning conditions agreed upon with Delegates — [Parliament] prorogued today.”
44 Exhibit 1-0467, page 1446 45 Exhibit 1-0486
[139] On May 18, Ritchot wrote Cartier.46 In his letter he raised concerns about three issues, namely, the children’s grant, provision as to the quieting of titles in that part of the province in which Indian title had not yet been extinguished, and the question of the amnesty for Riel and his followers. He asked that Cartier secure for them before their departure all the guarantees promised by him and
Macdonald in relation to these questions.
[140] On May 19, Cartier took Ritchot and Alfred Scott to visit the Governor 2007 MBQB 293 (CanLII)
General. Ritchot records in his diary the nature of the discussion with the
Governor General.47 The discussion as he recorded it pertained to the amnesty
and the quieting of titles, not to the children’s grant. There is nothing in his
journal describing that meeting with the Governor General which pertains to the children’s grant nor is there any indication of a direction or authorization from the Governor General to Cartier to write to Ritchot concerning the children’s grant.
[141] Following that meeting the Governor General reported to Granville:48
I have this afternoon taken leave of two delegates Father Ritchot and Mr. Scott and they have both expressed themselves to me as completely satisfied with the provisions of the Manitoba Act and their belief that it will be accepted as a friendly and generous settlement by the people of the New Province.
[142] The evidence discloses that to the knowledge of Macdonald and Cartier,
the Canadian government had been advised by Granville that it would be
46 Exhibit 1-0493 47 Exhibit 1-0005, page 154 48 Exhibit 1-0494
required to accept the decision of the Imperial Government on disputed points in the settlers’ bill of rights. Having expressed this condition, however, the Imperial
Government never became so involved. There were no complaints made by
Ritchot or the other delegates, nor advice from Murdoch or Young that Imperial
Government intervention was required. The Imperial Government accepted the assurance of Young without inquiry.
[143] On May 23, Cartier wrote Ritchot and Alfred Scott49 both with respect to 2007 MBQB 293 (CanLII) the fourth paragraph of section 32 of the Act and with respect to the amnesty.
[144] The letter, which contained two postscripts, read as follows:
(Translation.) Department of Militia and Defence, Ottawa, 23rd May, 1870.
Gentlemen — With reference to the representations you have submitted respecting the fourth paragraph of Section 32 of the Act to establish and provide for the Government of Manitoba, in which it is stated that “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, I am in a position to give you the assurance, on the part of the members of the Government, that so soon as the Government can grant the necessary titles, no payment shall be required from any of the persons mentioned in that paragraph, but that they shall be placed upon the same footing as the persons mentioned in the three preceding paragraphs.
I desire to call your attention to the interview you had with His Excellency the Governor General on the 19th instant, at which I was present, and in which His Excellency was pleased to state that the liberal policy which the Government proposed to follow in relation to the persons for whom you are interesting yourself is correct, and is that which ought to be adopted.
I have the honor to be, Gentlemen,
49 Exhibit 1-0499
Your obedient servant, (Signed,) Geo. Et. Cartier, Minister of Militia and Defence.
To Messrs. Ritchot and Scott,
P.S. — You can at any time make use of this letter, in such manner as you shall think proper, in any explanation you may have to give connected with the object for which you were sent as delegates to the Canadian Government.
(Signed,) G. E. C.
I have, moreover, the honor to assure you, as well on my own behalf as on behalf of my colleagues, that as to the million four hundred 2007 MBQB 293 (CanLII) thousand acres of land reserved by the 31st section of the Manitoba Act, for the benefit of the families of half-breed residents, the regulations to be established from time to time by the Governor General in Council, respecting that reserve, will be of a nature to meet the wishes of the half- breed residents, and to guarantee, in the most effectual and equitable manner, the division of that extent of land amongst the children of the heads of families of the half-breeds residing in the Province of Manitoba at the time when the transfer is to be made to Canada.
I have the honor to be, Gentlemen, Your obedient servant, (Signed,) Geo. Et. Cartier, Minister of Militia and Defence.
[145] It is not entirely clear when the latter postscript was added to the letter, but it appears from an entry in Ritchot’s diary that it was a follow-on to the letter. His May 27th diary entry50 reads as follows:
May 27 Friday. Interview with Sir George on the subject of the petition which he approves. He gave me the letter which he [had] promised me and which he had made out in the name of his colleagues and of the Governor General.
After [indecipherable]. I hand it back to him to get him to add some guarantees on the subject of the 31st clause of the Act regarding the choice and division of lands that were to be distributed to the children. He promised me to see to it.
50 Exhibit 1-0005, page 156
[146] There is nothing in that diary entry which records when it was that Ritchot received the letter in finished form, that is, with the second postscript as part of the letter.
[147] On June 23, 1870, the Imperial Government passed an Order in Council admitting Rupert’s Land and the North-western Territory into the union of
Canada effective July 15, 1870.51 2007 MBQB 293 (CanLII) [148] On June 24, 1870, Ritchot, having returned to Red River, appeared and addressed the Legislative Assembly of Assiniboia.52 The May 23 letter from
Cartier was presented and was read to the Assembly by Bunn. Ultimately, a
motion was made, “That the Legislative Assembly of this country do now, in the
name of the people, adopt the Manitoba Act, and decide on entering the
Dominion of Canada, on the terms proposed in the Confederation Act.” That
motion was seconded and passed unanimously.
[149] On July 6, 1870, Young sent a secret message to Granville53 reporting that
Archbishop Taché (“Taché”) had sent a letter to Cartier urging the expediency of granting an amnesty for all offences committed by the Provisional Government including the trial and execution of Thomas Scott. In that report, Young said, in part:
It is quite sure that the inhabitants of Ontario – the [east-mags] are violently opposed to an amnesty, and ill satisfied with many of the
51 Exhibit 1-0509 52 Exhibit 1-0512 53 Exhibit 1-0518
provisions of the Manitoba Bill which they denounce as a surrender to the French Priest Party.
I hope Her Majesty’s Government will be willing to decide the question and take the responsibility of deciding it upon themselves, for I do not think that the Canadian Government is strong enough to do so. The mere discussion of the question in Canada rouses up all the dormant jealousies and animosities between the French speaking and the English speaking portions of the populations. The English speaking Roman Catholics seem so far as I can learn to be arrayed against the French speaking Roman Catholics. It is a division of races rather than of religion.
[150] And on July 16, 1870, Bishop Machray, the Anglican bishop of Rupert’s
Land, wrote the Governor General54 a follow-up letter to his earlier letter of 2007 MBQB 293 (CanLII)
March 17 expressing his views upon the troubles at the Settlement. In his letter he expressed concern for the “extraordinary delay in the advance of the troops” which he said was creating a very dangerous condition of things in the
Settlement. He asserted that a considerable majority of the people, including almost all of intelligence and substance, are against the Provisional Government.
He talked about the animosity between the French and the English. And he also alluded to the children’s grant as follows:
Then the grant of 1,400,000 acres to the half breed part of the community is a most dangerous provision — This will have to be wisely — most wisely administered. If not I am sure that before many years there will be a revolution upsetting the whole arrangement. A far better course for the half-breeds — a regard for whom I consider most right — would have been to have enacted a free grant of 200 acres for any new settler but say 300 for a half-breed — Any attempt to limit a special tract of country to a special class of the people and religion — leading to land not being improved and occupied — is greatly to be deprecated in the general interests of the community and of the religious body itself — for I am sure [such] an arrangement will not in the end be suffered to stand and it will create endless agitation and annoyance.
54 Exhibit 1-0519
[151] On April 17, 1871, a joint address from the Canadian Parliament was sent to England and on June 29, 1871, The British North America Act, 1871
(U.K.), 34-35 Vict., c. 28, was finally assented to by the Imperial Parliament.
(2) Facts Material to Implementation of the Section 31 Grants
[152] On July 30, 1870, Archibald was appointed Lieutenant Governor of
Manitoba. On August 2, 1870, he was appointed “Administrator on behalf of the
Government of Canada of the ungranted or wastelands in that Province vested in 2007 MBQB 293 (CanLII) the Crown”.
[153] By separate instrument dated July 30, 1870, he also was appointed
Lieutenant Governor of the North-West Territories.
[154] Archibald received instructions from the Under Secretary of State for the
Provinces on August 4, 1870,55 relative to his appointments as Lieutenant
Governor of, and as Administrator of the ungranted or wastelands in, Manitoba.
[155] The work to be done by Archibald pursuant to these instructions was extensive. Amongst other things, he 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
55 Exhibit 1-0553, pages 4 to 7
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.
[156] Aside from the foregoing, he also received extensive instructions as to the
undertakings which he should fulfill as Lieutenant Governor of the North-West 2007 MBQB 293 (CanLII)
Territories.
[157] Archibald arrived in Fort Garry September 2, 1870. He reported from time to time to the Secretary of State for the Provinces as to the community activities
at Fort Garry and within the province. Clearly he was very busy. An example is
his report of September 17, 1870. He wrote:56
I have been obliged to write in great haste. In the primitive condition of affairs here, the most trivial matter must be brought to the notice of the Governor, and from morning to night I have not a moment to myself, and in this case I have been obliged to begin this letter after the hour named for the close of the mail, keeping it open until I shall have completed it.
[158] The census was completed and reported upon by December 9, 1870.57
The census reported just under 12,000 persons in the province, consisting of
1,600 white Europeans, approximately 560 Indians, approximately 5,700 French half-breeds, and just over 4,000 English half-breeds. As well, the census recorded that there were approximately 6,000 half-breeds (both French and
56 Exhibit 1-0553, page 16 57 Exhibit 1-0541
English) 20 years of age or under, plus 1,615 between the ages of 20 and 30.
[159] Archibald was instructed to provide his opinion, which he did December
20, 1870,58 as to the regulations which should be made respecting subsection
32(5) of the Act for ascertaining, adjusting and commuting by land grants from the Crown the rights of common and of cutting hay enjoyed by the settlers.
[160] His letter of December 20, 1870, related generally to landholdings as they 2007 MBQB 293 (CanLII) existed within the province at July 15, 1870, and his expression of views to the
Federal Government concerning that land on a go-forward basis. He took issue with Dennis’s scheme for the surveys in the North-West. Archibald recommended the scheme of survey as it then existed in the United States, which he asserted was a system known all over the world to the emigrant classes. That system of survey he described was the system of 6 miles square, subdivided into 36 square miles, each of those again subdivided into 4 square lots of 160 acres each.
[161] In addition, he was instructed to report his opinion to the Under Secretary of State for the Provinces for the information of the Governor General, which he did December 27, 1870,59 as to the regulations which should be made by the
Governor General in Council under section 31 of the Act “for the selection of lands to the extent therein mentioned, from among the ungranted lands in the
58 Exhibit 1-0546 59 Exhibit 1-0548, a duplicate at Exhibit 1-0547
Province of Manitoba, and their division among the children of the half-breed heads of families residing in that Province at the time of transfer of the same to
Canada, together with the mode and conditions, as to settlement or otherwise, which you may consider desirable to embody in such regulations.”
[162] Archibald recommended that the section 31 lands should be subject to survey conducted under the general system (i.e., the system which he had recommended). 2007 MBQB 293 (CanLII)
[163] As well, with respect to section 31 of the Act, he wrote as follows:
The title recognized as Indian, is the title of the natives who have made any particular portion of the Country their home. Each tribe is divided into families, and each family considers as its own, in a certain sense of exclusiveness, though not in the absolute sense we attach to ownership, the particular parts of the Country, where the family lives, and hunts, and roams.
Now, as regards the Province of Manitoba, that was originally in the possession of some tribes of Crees, till shortly before the arrival of the English settlers, when they either abandoned their homes in search of a more Western Country or were driven out by the Saulteaux, who pressed upon them from the East, and whose original home is the Country lying between this and Lake Superior. Some few Crees remained, some Indians, assuming to be Cree Chiefs uniting with others assuming to be Saulteaux Chiefs, concurred in the deed to the Earl of Selkirk referred to in a previous despatch.
The Indian rights, whatever they may be, belong to families of these two tribes. But many of the Half-breed inhabitants of Red River are not descended from any family or tribe of either Crees or Saulteaux.
The Half-breed population of this Province is largely from beyond the Province. White men, who have lived in the most remote parts of this Continent, and have formed connexions with Indian women of the interior, as they advance in years remove to Red River, and there is not probably a tribe of natives between this and the Rocky Mountains, or between this and the North Pole, or between this and the Coast of Hudson’s Bay or Labrador, which is not to some extent represented in the Half-breeds of Red River.
The words therefore, “towards the extinguishment of the Indian Title in these lands” if they were really meant to apply to those who could have any claim, as descendants of the tribes who occupied the Lands of Manitoba, would exclude all Half-breeds whose Indian Ancestors were not of certain Tribes and Families; but I presume the intention was not so much to create the extinguishment of any hereditary claims (as the language of the Act would seem to imply) as to confer a boon upon the mixed race inhabiting this Province, and generally known as Half-breeds. If so, any person with a mixture of Indian blood in his veins no matter how derived, if resident in the Province at the time of the transfer would come within the class of persons for whom the boon was intended.
He thus recommended that each half-breed should be included in the section 31 2007 MBQB 293 (CanLII) grant.
[164] Archibald instructed Molyneux St. John (“St. John”) to make inquiry and report upon the landholdings within the new province, both from a recent historical perspective and for the future pursuant to the provisions of the Act including section 31. St. John reported to Archibald on January 3, 1871.60 In that report he noted the divergence of desires as to the location of the section 31 land. He wrote:
With reference to the distribution of the land set apart by the 31st clause of the Manitoba Act I should inform your Honour that there is a difference of opinion both as to the way in which the land could be most desirably located, and the manner in which its possession should be regulated. Some persons desire to take their share in the neighbourhood of the lands now occupied by themselves; others would prefer to receive it in parts remote from their present holdings with the view of obtaining hay and better grazing country.
[165] St. John then expressed his views concerning the location of the grant, the possible use of scrip and other related issues.
60 Exhibit 1-0557
[166] Having received Archibald’s recommendations, the Federal Cabinet in early
1871 began to establish its policy with respect to the land in Manitoba and the
provisions of the Act.
[167] Order in Council March 1, 1871, was issued. It was the subject of debate in the House of Commons on April 6, 1871. During that debate, McDougall
stated that the 1,400,000-acre grant should not be divided amongst all half-
breed residents but rather should be limited to the children of the half-breed 2007 MBQB 293 (CanLII)
residents. He was ignored. Order in Council March 1, 1871, was amended
(although not concerning matters respecting section 31 of the Act) and was replaced by Order in Council April 25, 1871.61 The acceptance of Archibald’s
recommendation as to who was entitled to share in the section 31 grant and the
rejection of McDougall’s position would result in a delay in the implementation
process.
[168] Order in Council April 25, 1871, adopted the general system of survey
proposed by Archibald and established the mode for dealing with the section 31
grant.
[169] It provided that townships containing 1,400,000 acres would be reserved
and divided among all half-breed residents and their children. The number of
acres to which each person would be entitled would be based upon the census.
61 Exhibit 1-0608
As the census completed December 9, 1870, recorded approximately 10,000
Métis residents in the province, each would be entitled to 140 acres.
[170] The Order in Council provided that the Lieutenant Governor would
designate the townships or parts of townships in which the allotments to the half-breeds would be made and described the mode of allotment, namely, distribution by way of random lottery. It also provided that there would not be any conditions of settlement imposed with respect to the half-breed grant, and 2007 MBQB 293 (CanLII) there would be no restrictions as to the grantee’s power of dealing with their lands when granted, other than those which the laws of Manitoba might prescribe.
[171] The new province, of course, did not exist in a vacuum. Neither did time nor life stand still. In the spring of 1871, new immigrants began to arrive in
Manitoba and take up land. But those entitled under sections 31 and 32 had received nothing concrete under the Act. This caused anxiety and unrest amongst the old residents, including the Métis.
[172] Six members of the Legislative Assembly of Manitoba wrote Archibald on
May 24, 1871,62 requesting assurance on behalf of the old inhabitants concerning
the rights of common and the rights of cutting hay which they had enjoyed, and
on behalf of the half-breed population concerning the possession of the lands
guaranteed to them under the Act.
62 Exhibit 1-0620
[173] On May 26, 1871, the Federal Government passed an Order in Council,63 which allowed new immigrant settlers to take advantage of the homestead and preemption provisions contained in Order in Council April 25, 1871, even though the public survey was not completed. The passage of this Order in Council and the continuing arrival of immigrants increased the level of concern.
[174] On June 9, 1871, Archibald wrote a letter64 responding to the May 24 letter set forth above. Both letters were published in the local newspaper. In his 2007 MBQB 293 (CanLII) response, Archibald made reference to Order in Council April 25, 1871, and continued as follows:
By these rules, I perceive that it will be left to the Lieutenant Governor of this Province to designate the townships, or parts of townships, in which the allotments to the Half-breeds shall be made.
Should I be called upon to act under this rule, I shall consider that the fairest mode of proceeding will be to adopt, as far as possible, the selections made by the Half-breeds themselves.
Wherever, therefore, any Parish of Half-breeds, or any body of Half-breeds, shall have made choice of a particular locality and shall have publicly notified the same in such manner as to give notoriety to the fact of their having made such a selection and having defined the limits thereof, so as to prevent settlers entering upon the tract in ignorance of the previous selection, I shall if the duty should fall to me of acting under the rule laid down by the Governor General, be guided by the principle I have mentioned, and confirm the selections so made, so far as this can be done without doing violence to the township or sectional series.
When Archibald wrote this letter, he was not aware of the passage of Order in
Council May 26, 1871.
63 Exhibit 1-0622 64 Exhibit 1-0620
[175] On June 17, 1871, Archibald wrote Joseph Howe, the Secretary of State,65 as to his published letter of June 9, 1871. In his letter, he advised Howe of the uneasiness within the province concerning the half-breed grant resulting from the arrival of immigrants who were beginning to take up land as they arrived.
He described very generally the results of this unease and in reference to his
June 9, 1871 response, said:
I should have hesitated about replying if the situation had allowed me any choice, but I felt bound to give some answer, at the risk even of not 2007 MBQB 293 (CanLII) being sustained by His Excellency the Governor General.
He sent Howe a copy of both the May 24 and June 9 letters.
[176] Both before and after Archibald’s June 9, 1871, letter, meetings were held
at the parish levels and publications appeared in the local newspapers describing
by metes and bounds those lands from which the Métis felt the section 31 land grant should be allotted.
[177] Howe did not respond to Archibald’s letter of June 17, 1871, until
November 4, 1871.66 He then expressed regret about Archibald’s June 9, 1871,
letter and suggested that, with respect to land issues in the province, Archibald
advise the citizens that he had nothing to do in the matter. He suggested that
Archibald “leave the Land Department and the Dominion Government to carry
out their policy without volunteering any interference”.
65 Exhibit 1-0633 66 Exhibit 1-0658
[178] Gilbert McMicken (“McMicken”) was appointed Dominion Lands Agent in
Manitoba in the fall of 1871. He wrote Macdonald on November 12, 1871.67 He told Macdonald the half-breed claims could be acceptably resolved and undertook to provide a plan for so doing.
[179] In his annual report as Immigration Agent dated December 30, 1871,
McMicken wrote:68
It does not come within the scope of my duty here to deal with the 2007 MBQB 293 (CanLII) question of the Half-breeds grant, but I may be allowed to say that very erroneous impressions have been created in regard to it, and the circumstances surrounding it. Whatever the precise method of distribution the Government has determined, or may determine upon, in reference to it, the selection as made in behalf of the Half-breeds was not “per Se” on the ground of the better quality of the land, but more especially in view (as regards the French Half-breeds more particularly) of keeping them intact as a community, in contiguity to their old settlements, and with a view to assuring and maintaining their religious and political interests and privileges. …
[180] The plan to which McMicken referred in his November 12, 1871, letter was set out in a memorandum of January 5, 1872.69 It proposed an issue of transferable scrip redeemable in Dominion Lands reserved for the purposes of the grant. His proposal was poorly received locally and led to increased agitation in Manitoba.
[181] Taché wrote Macdonald on January 23, 1872,70 concerning McMicken’s proposal. In his letter, he wrote in part the following:
The half-breeds have been promised the selection and distribution of their lands in such a way as to please them and they expect fairness on
67 Exhibit 1-0660 68 Exhibit 1-0664 69 Exhibit 1-0670 70 Exhibit 1-0680
that point. The scheme, proposed by Mr. McMicken, is entirely opposed to their wishes and interests, so much so that, if adopted by the Government, they will feel frustrated in their expectations, deceived by the Government and a feeling of uneasiness would prevail to a large extent.
The order in Council of the 25th of April last states that: “The Lieutenant Governor of Manitoba shall designate the Townships or parts of townships in which the allotment of the half-breeds shall be made.” This official document in hand and in face of the prevailing uneasiness and excitement, Governor Archibald thought proper to make the selection in order to please the half-breeds. I am entirely satisfied that he acted wisely and in the interest of the Canadian Government as well the Province of Manitoba and no doubt he and we would feel very much the adoption of a scheme which would be considered as an entire 2007 MBQB 293 (CanLII) condemnation of his policy.
I hope that the order in Council of the 25th April last, will be maintained and that the Lieutenant Governor will not be embarrassed with new regulations, which would involve the condemnation of his first action, along with the danger of bringing new elements of discord to this country.
[182] On February 8, 1872, the Legislative Council and Assembly of Manitoba by joint address to the Governor General of Canada71 expressed concern that with the delay in the making of the grants, the public lands, from which the grant would come, would not be in the same or in as good condition when the grants were made as they were at the time that the grant came into existence. This was because new settlers were being allowed to take up land and also were removing timber from land for purposes of their homes, etc. The address also requested that Canada honour the selection of reserves which had been made by the Half-Breed population. The joint address recorded that they “respectfully submit that the reserves in block taken by the Half-Breed population are in
71 Exhibit 1-0687
accordance with the letter and spirit of an official document signed at Ottawa on the 23rd of May, 1870” and “that these reserves so made have received the
unqualified approbation of the high functionary to whom was directed the charge
of this matter by Order in Council April 25, 1871, and that the result of these
reserves being so laid off has been to avoid agitation which is always hurtful to a
young province and that the confirmation of these reserves will give the greatest
satisfaction.” 2007 MBQB 293 (CanLII)
[183] In addition, the joint address expressed the Legislative Assembly’s wish:
That this grant constitutes an absolute right of property in favour of the recipients, and that the considerations for which the grant was given entitled the recipients to the rights assured by common law to the owners of individual property.
And further:
We, the Legislative Council and Legislative Assembly of Manitoba, with the view of efficiently protecting the rights of Half-Breed minors, respectfully approach Your Excellency to request that the privilege be given to them by the Dominion Government of naming administrators or guardians to take charge of the administration of the land reserved and set apart for the Half-Breed minors, and to declare that the lands coming to the Half-Breed by virtue of this reserve be considered as assigned rights in the first degree ….
[184] The Federal Government did not reply to that joint address for almost a year until January 27, 1873.72 In its reply, Canada told Manitoba that the
Governor in Council, by regulations to be made from time to time, had the sole power to regulate the distribution of the grant to the half-breeds individually and
the issue of patents therefor.
72 Exhibit 1-0802
[185] Following the February 8, 1872, joint address, McMicken and Dennis, by letters dated February 24, 1872,73 and March 22, 1872,74 respectively, urged the
Secretary of State to proceed with the selection of lands for the half-breed grant.
McMicken described as most urgent the final disposal and apportionment of the
1,400,000 acres granted to the half-breeds by the Act and suggested:
… that the distribution be made generally from the Localities indicated as the selection on the part of the Half-breeds — reserving such portions as shall be necessary to make up the portion to which the Hudson’s Bay Company have a claim in each Township and also the portions to be set 2007 MBQB 293 (CanLII) apart for School Lands reservations.
[186] As well, he wrote: “The rights of all those who have taken up Lands for
settlement within the localities referred to, under the privilege granted by the
existing regulations should be respected” and that “They should be granted the
privilege (which under the present regulations they have not now) of selling their
claims and improvements and taking up either Homestead or Preemption claims
in other directions as they may select. The option remaining entirely with
themselves.”
[187] Dennis, in his letter, concurred in those comments of McMicken and
advised that the surveys were sufficiently far advanced to permit this occurring.
[188] This led to a report dated March 27, 1872, from J.C. Aikins (“Aikins”),
Secretary of State for the Provinces, to the Governor General75 and as a result to
73 Exhibit 1-0690 74 Exhibit 1-0695 75 Exhibit 1-0696
passage of Order in Council April 15, 1872.76
[189] That Order in Council recited that the surveys in Manitoba were sufficiently far advanced to enable a selection of the 1,400,000 acres to which, by the Act, the half-breeds were entitled and that the Lieutenant Governor of
Manitoba be instructed to make selections of townships in such number as is necessary to make up 1,400,000 acres, reserving in all cases from every township so selected sections for the HBC lands and the lands which may be 2007 MBQB 293 (CanLII) required for school purposes. The Order in Council also provided that:
… care be taken … that only a due proportion of the woodlands of the Province be included in the 1,400,000 acres of land to be granted to the Half-breeds; the remainder of these woodlands being made available for settlers.
[190] By telegram dated July 17, 1872, Aikins instructed Archibald to make the selection of the half-breed lands without delay. Archibald proceeded to do so and reported to Aikins on July 27, 1872.77 He wrote that it would require selection of about 39 townships for the French Métis and about 29 townships for the English half-breeds. He reported that it would be easy in a general way to select a number of townships sufficient to cover the half-breed claims and
“situate in localities likely to present a fair average”, but it “would have been unsafe to make an absolute selection without more accurate information than could be procured without inquiry involving some delay”.
76 Exhibit 1-0701 77 Exhibit 1-0727
[191] He, therefore, said that a solution would be to simply withdraw from the market a sufficient number of townships that were likely to be selected before making an absolute selection.
[192] On August 12, 1872, Archibald wrote Aikins78 attaching and reporting upon a petition from the residents of High Bluff and Poplar Point “on the subject of the land to be allotted to them as their share of the half-breed lands….” He wrote: 2007 MBQB 293 (CanLII)
I have been governed in my approximate selection, by a desire, as indicated in that letter, to meet the views of the half-breeds, as far as I can, conformably to the governing idea of making the selection a fair average of Townships, containing no more than a reasonable proportion of wood, etc.
Such a selection is of course much easier to make in Townships, or large blocks, than if in sections or smaller divisions.
As regards the Townships asked for by the inhabitants, there are several exceptional circumstances, which would have to be taken into consideration even if they were at the disposal of the Crown.
[193] He then pointed out that some of the land requested by the half-breeds was located in a narrow belt between the Assiniboine River and the shores of
Lake Manitoba, which would give that land a value far beyond its worth as ordinary farm lots. He pointed out that the pending location of the railway would also add further to the value of the land and in addition a large portion of the land being requested had already been taken up under order in council as homesteads for settlement or by purchases, and rights therefore had been acquired to the land which could not be set aside. He wrote:
78 Exhibit 1-0730
In the interests of the public, it is better that the lands there situate should be in the hands of purchasers and settlers, and so be open to the general market, rather than that they should be assigned to Half-breeds, many of whom, being underage, would be incapable of conveying, and thus form as a serious obstruction to the development of one of the most valuable spots in the Province.
[194] He reported, therefore, that he had suggested other land in lieu of some of the land being sought by the half-breeds.
[195] On August 26, 1872, Archibald wrote Aikins79 reporting as to the particular 2007 MBQB 293 (CanLII) townships which had been preliminarily selected for the half-breeds. He wrote, in part:
You will quite understand that I have not, in their selection, committed myself to the final choice of any particular Townships. The Half-breeds have been made to understand that the only effect of the selection is to have the Townships withdrawn from the market, pending the inquiries required to determine as to their absolute selection, with the understanding that these inquiries should be conducted with as little delay as possible.
[196] In the fall of 1872, Morris replaced Archibald as the new Lieutenant
Governor of Manitoba. On November 16, 1872,80 Morris asked Macdonald for authority to announce that a plan for allotment had been adopted and would begin immediately.
[197] On November 20, 1872,81 Morris wrote the Secretary of State for the
Provinces, reporting that the half-breed reserves had now been selected by the
Lieutenant Governor and that a plan for the allotment of these lands to the
79 Exhibit 1-0733 80 Exhibit 1-0750 81 Exhibit 1-0751
individuals entitled to them had been completed. He, therefore, requested
authority to begin allotment.
[198] Morris then received a letter dated December 6, 1872,82 from Aikins
informing him that the Surveyor General would leave for Manitoba to assist with
the allotment “on the basis of the Order in Council of April 25, 1871”. He
instructed Morris as follows:
Previous however to such being done, it would be necessary for you to 2007 MBQB 293 (CanLII) confirm the selection of townships to meet the 1,400,000 acres reported by the late Lieutenant Governor in his dispatch number 10 of 26 August last ….
[199] Morris proceeded to finalize selection of the townships and on
February 22, 1873, began allotment, drawing lots for the individual grants of 140 acres.
[200] Two complications then arose:
(1) The issue raised by McDougall in Parliament in March 1871
resurfaced, that is: Was the grant to be for all half-breed residents
or for the half-breed children only?
(2) The hay privilege issue. When the land policies were formulated,
the government considered this a minor issue. However, it took on
greater import upon completion of the river lot surveys and the
start of the section 31 allotments. The river lot surveys did not
82 Exhibit 1-0755
include the outer two miles for the inner parishes (where the hay
privilege had been enjoyed) and many old settlers, both Métis and
non-Métis, became concerned about possible loss of their interest
in the outer two miles by reason of the proposed section 31
allotments.
[201] On March 12, 1873, Robert Cunningham (“Cunningham”), MP for
Marquette, asked the Prime Minister in Parliament whether the heads of families 2007 MBQB 293 (CanLII) were going to be included in the grant. Macdonald said that they were.
[202] On March 24, 1873, Cunningham again raised the matter, and Macdonald said that the government had come to the conclusion that only the children of half-breed heads of families were entitled to participate in the grant. By Order in
Council April 3, 1873,83 the government confirmed this position. The deletion of
heads of families from the children’s grant created problems and delay.
[203] Whereas there were approximately 10,000 half-breeds within the province
according to the 1870 census, resulting in the size of the grant being 140 acres
per recipient, the removal of the heads of families reduced the number of eligible
recipients to approximately 7,000. Accordingly, the size of the grant would now
become 190 acres to the children only. As a result, whatever 140-acre
allotments had been made by that date were cancelled. A second allotment of
190-acre grants began in August 1873.
83 Exhibit 1-0859
[204] The resolution of the hay privilege issue also took time and resulted in
delay.
[205] In the summer of 1873, the government decided to remove the outer two
miles from those townships selected by Archibald and Morris for the section 31
grant. Morris sought advice as to adjustments that would then have to be made to account for this removal. 2007 MBQB 293 (CanLII) [206] On August 18, 1873, Lindsay Russell, Assistant Surveyor General, wrote
Morris84 advising as to the additional amount of lands required to satisfy the half- breed land grant by reason of the withdrawal of the outer two miles from the section 31 land as had been selected and, as well, suggesting the townships or parts of townships to be used to meet that requirement.
[207] Order in Council September 6, 1873,85 was passed, which withdrew the
outer two miles from the land set apart for the half-breed grant and provided
that the deficiency would be made up by taking a corresponding amount of land
from unclaimed lands at the rear of the allotment. This had the effect of cancelling the earlier selection of those lands that were located within the outer two miles.
[208] Speculators and others acquired the interests of some Métis children in the land grant. This is evident from advertisements in the local newspapers of
84 Exhibit 1-0899 85 Exhibit 1-0904
the time, from statements made before the Commission to Investigate the
Administration of Justice in the Province of Manitoba relating to half-breed lands
(the “Land Grants’ Inquiry”) in November 1881, from the speech made by
Macdonald to the House of Commons in July 188586 referring both to land and scrip, when he said:
The claims of the half-breeds in Manitoba were bought up by speculators. It was an unfortunate thing for those poor people; but it is true that this grant of scrip and land to those poor people was a curse and not a blessing. The scrip was bought up; the lands were bought up by white 2007 MBQB 293 (CanLII) speculators and the consequences are apparent. and otherwise.
[209] These people knew various ways in which to acquire the grantees’ interests, which the evidence shows included the use of assignments, of powers of attorney, of penalties, of mortgages attached to the land of the parent of the grantee to become operative in the event of default by the grantee, and of others. There is no question that by 1873, many sales of the interests in section
31 land were occurring. While some of the sales were sales by heads of families who were wrongly given the ability to participate in the grant by Order in Council
April 25, 1871, the sales also included sales by children.
[210] During this time, the Manitoba Legislature began to consider legislation designed to ensure that people entitled to section 31 grants would not be taken
86 Exhibit 1-1678
advantage of by speculators or others seeking to purchase their interest. On
March 3, 1873, it passed The Half-breed Land Grant Protection Act.87
[211] The preamble to that Act acknowledged the evidence then extant that speculators were buying the grantees’ interests in their land grant. It recited in part 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 therefore only a 2007 MBQB 293 (CanLII) trifling consideration;
And whereas it is expedient to discourage the traffic now going on in such rights, by protecting the interests of the persons entitled to share as aforesaid, until the Patent issue:…
[212] The effect of the Act was that no promise or agreement made by any half- breed prior to the issue of the patent to sell his or her interest in the grant, would be enforceable against such half-breed and no damages would be recoverable against him or her by reason of the refusal to carry out such promise or agreement. The Act also provided that for any such transaction which may have taken place prior to the passing of the Act, any consideration in money or in goods received by the half-breed, was declared to be a debt owed by the half- breed to the speculator who after the issue of patent might sue for recovery.
Such debt together with interest at 7 percent would form a first lien on the land and could be sold at public auction at the end of one year from the date of issue of the patent in satisfaction of the obligation.
87 Exhibit 1-0843
[213] Morris reserved his assent to the Act. On March 17, 1873, he wrote Howe
explaining that he had reserved assent to the Act, because of certain concerns as to the legislation saying that the law was novel and retroactive in its character
and he felt “compelled to reserve it for the signification of the pleasure of the
Governor General”.
[214] At that time, the Métis constituted the largest ethnic group in the
Legislature. Some of the Métis members themselves considered this Act to be an 2007 MBQB 293 (CanLII)
insult to people of Métis ancestry. They felt the Métis people were in all ways
capable of looking after their own interests.
[215] On February 21, 187488, A.A. Dorion, Minister of Justice, recommended
that the Act be given royal assent. One of his reasons for this recommendation was, as he said:
The undersigned is, however, of opinion that, having reference to the circumstances under which the appropriation of Dominion lands was made for Half-breeds and that it is recited in the bill that very many persons entitled to participate in the grant had agreed to sell their right, whilst, at the same time, they were in perfect ignorance what that right or its value eventually might be, the Act would be beneficial in protecting their interests.
Ultimately, the Governor General gave royal assent to the Act and it was
proclaimed in February 1874.
[216] Accordingly, starting in 1874 following the assent of the Governor General
to the Act, Métis vendors for the next three years were not bound by agreements
88 Exhibit 1-0955
to sell their interests in land made before the patents to the land issued. And, no patents were issued during that time.
[217] Morris began the second allotment on August 16, 1873. At that time,
there was an open question in Manitoba whether binding sales of allotments
before patent could be made. This was so because the Act, while passed on
March 3, 1873, was still under reserve by the Lieutenant Governor awaiting the
pleasure of the Governor General. 2007 MBQB 293 (CanLII)
[218] As well, as the second allotment began, there arose a discussion and a
disagreement between Dennis and Morris.
[219] Dennis raised a question as to the validation of section 31 claimants. He
wrote a memorandum dated September 30, 1873,89 reporting that the allotment
had already been effected for several of the parishes in the province and recommended that some machinery be put in place to permit investigation to ensure that a person wishing to receive a patent as an entitled allottee was in fact so entitled.
[220] A Commission headed by John Bain and Joseph Dubuc (the Bain and
Dubuc Commission) had been created to deal with the settlement of claims respecting rights of common and of cutting hay. Dennis suggested that the Bain
and Dubuc Commission might be charged with this additional responsibility.
89 Exhibit 1-0910
That Commission would be required to visit the different parishes to take
evidence in respect of the one task and could easily arrange special sittings at
such times to receive applications and take evidence respecting the other.
Ultimately, Bain and Dubuc refused to undertake this additional work.
[221] By telegram December 11, 1873, Dennis asked Morris whether it would be
necessary to investigate the claims of half-breeds to land allotted or whether he
considered the census returns sufficiently reliable to issue the patents. Morris 2007 MBQB 293 (CanLII)
responded on December 12, 1873.90 Morris said that to validate claims of the
half-breeds would involve great delay. He suggested instead that it would be
better to advertise the list of claimants (grantees) and the lands allotted to them,
giving the allotments the same effect as description for patent, subject to proof
of identity. He suggested that proof of identity and the claimants’ right to the land should be established when the claimant picked up the patent. Morris asserted that his suggested plan would satisfy the concern as to entitlement of an individual claimant and would remove the burden of delay from the authorities to the claimant.
[222] Dennis prepared a memorandum dated December 17, 1873,91 in which he reported upon Morris’s plan to publish the recipient’s name along with the land
90 Both telegrams are contained in Exhibit 1-0930 91 Exhibit 1-0936
allotted, but disagreed with Morris’s plan. Morris wrote directly to the Minister
on February 11, 1874,92 persisting with his suggested plan.
[223] On February 28, 1874, Donald Codd (“Codd”), Acting Agent of Dominion
Lands, wrote Dennis93 supporting Morris’s position.
[224] Allotments began but problems arose in St. Laurent and St. Boniface
where allotments had to be redone because of surveying errors. 2007 MBQB 293 (CanLII)
[225] Macdonald’s government fell in November 1873. In 1874, Sir Alexander
Mackenzie (“Mackenzie”) became Prime Minister of the new Liberal government.
1874 wore on without apparent progress on the allotments.
[226] It was not until February 1875 that the new Minister of the Interior was
asked in parliament when the allotment might be made. Amongst other things,
David Laird (“Laird”), Lieutenant Governor of the North-West Territories, responded that it would be necessary for claims to be validated by commissioners receiving evidence as to eligibility.
[227] In February and early March 1875 with nothing having happened, petitions were prepared by various parishes in Manitoba and sent to government ministers for the attention of the Governor General or to the Governor General directly, addressing various land issues under the Act. The petitions94 were
92 Exhibit 1-0953 93 Exhibit 1-0959 94 Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043
virtually identical in language and addressed most of the land issues under the
Act. In particular, as regards the section 31 grant, complaint was made that
nearly five years had elapsed since the passage of the Act and not one grantee
was yet “in possession of one acre of said lands or deriving any benefit
therefrom”. The petitions stated in part:
3. That 1,400,000 acres of lands in the Province having been set apart as Half-breed Reserves and so continuing to be set apart, and not being in the hands of the Half-breeds either to cultivate or to dispose of is having a very damaging effect upon the prosperity of the Province … 2007 MBQB 293 (CanLII)
As well, the petitions pointed out the loss in value to the land in that intervening
period and asked that inquiry be made into the matters complained of with a
view to their early settlement.
[228] Finally, the disagreement between Dennis, Morris and Codd was dealt
with by the passage of Order in Council April 26, 1875,95 which provided for the
manner in which the allotment and grant of the section 31 lands would go
forward. This would, however, be revisited in 1877. The Order in Council provided for the publication of the names of allottees but not for the publication of their allotments (contrary to Morris and Codd’s proposal) and assigned to a commission the task of taking applications for patents from allottees. It also provided that upon the lists being duly published and distributed for each parish, a commissioner should visit the several parishes successively after having given
notice of his intended visit and take any and all evidence tendered on behalf of
95 Exhibit 1-1058
the claimants for such parish, thereafter making full return to the lands office upon which return the patent should issue forthwith to the parties so entitled and to others respectively upon arriving at the necessary age.
[229] By Order in Council May 5, 1875,96 John Machar (“Machar”) and Matthew
Ryan (“Ryan”) were appointed commissioners to investigate the claims of
persons entitled to participate in the section 31 grant. 2007 MBQB 293 (CanLII) [230] The Machar/Ryan Commission commenced its work and largely completed
it during the balance of 1875. The commissioners compiled separate returns for
each parish. These were approved and signed by Dennis and Laird around
January 31, 1876. Thus, an authoritative list existed of those entitled to share in the grant.
[231] There was concern that the list might be incomplete because of the absence of Métis from the province at the time of the commissioners’ attendance at various respective parishes, but it was at least reliable for those whose names were included. Because of that concern, Codd, at the Dominion Lands office, was authorized to receive additional applications and Ryan was authorized to take applications while serving as a stipendiary magistrate in the North-West
Territories.
[232] During this time, efforts were being made in Manitoba to amend The
96 Exhibit 1-1067
Half-breed Land Grant Protection Act, 1873. On May 14, 1875, Manitoba passed An Act to amend Cap. 46 [sic] Vict. 37, intituled: The Half-breed
Land Grant Protection Act, S.M. 1875, c. 37.97 This Act softened the protections provided under the original Act as it required any vendor who wished to repudiate his or her agreement to sell to pay a substantial refund of the money received plus interest and expenses, failing which the sale was valid and the vendor would be required to assign to the purchaser the lands so granted 2007 MBQB 293 (CanLII) within three months after receipt of the patent from the Crown. Morris did not reserve his assent to this Bill, but on October 7, 1876, Canada disallowed the Bill on the basis that the original Act provided all necessary protection for the purchase of half-breed land rights.
[233] By this time, 6½ years had passed since enactment of the Act. The evidence discloses that there was pressure not only from speculators and new settlers but from many Métis to enable binding sales before patent. Clearly, between 1874 and 1877, sales of claimant’s interests had continued by various means.
[234] Following the Machar/Ryan Commission, Order in Council March 23,
1876,98 was passed. It reported that the commissioners appointed to examine into claims for half-breed lands had completed their investigations and that the
Department of the Interior was now in a position to commence issuing patents.
97 Exhibit 1-1075 98 Exhibit 1-1171
It also provided that assignments by section 31 claimants before grant of patent
would not be recognized by Canada.
[235] Another complication then arose. Nothing further had been done towards
the issuing of patents when in the summer of 1876, Dennis expressed concern
that the 190-acre allotments might be too large if too many applicants came
forward. Accordingly, on July 12, 1876, he wrote Codd99 asking for his views
“whether the 1,400,000 acres will be sufficient in allotments of 190 acres each, 2007 MBQB 293 (CanLII)
to satisfy the number of claims of half-breed children likely to be proved under
the Act.”
[236] Codd considered the question and wrote Dennis on August 10, 1876.100
His letter advised that he believed the total number of recipients would not exceed 5,814 and provided the rationale for such belief. The number ultimately was set at 5,833 in order to yield an individual allotment size of 240 acres.
[237] Codd’s proposal was endorsed by the Federal Cabinet and became Order in Council September 7, 1876.101 This resulted in the cancellation of the second allotment and necessitated a third allotment where the grant size would be 240 and not 190-acre parcels. This, of course, resulted in further delay.
99 Exhibit 1-1188 100 Exhibit 1-1192 101 Exhibit 1-1200
[238] The third allotment commenced October 30, 1876, 6½ years after
passage of the Act. The public notice published October 23, 1876,102 concerning
the third allotment provided that the process would proceed with “all due
diligence”.
[239] The third allotment was not completed until 1880. The expressed reason for the delay was that both Codd and latterly Morris’s replacement as Lieutenant
Governor, Joseph Édouard Cauchon, did not have the time given their other 2007 MBQB 293 (CanLII) duties to deal with the allotment and both were unwilling to allow others to participate in the allotment process apparently for fear that confidential information as to the location of the particular allotments would become known to speculators.
[240] On November 2, 1876, shortly after he had begun drawing the 240-acre allotments, Morris wrote the Secretary of State reasserting his earlier proposal that the land specifically allotted to a particular grantee be made known and that the land be vested in the allottee upon completion of allotment for two reasons:
(1) so as to permit the allottee to protect the timber located upon the land allotted, and (2) because of the great extent of land to be allotted, a very long period of time would pass before the issue of patents.
102 Exhibit 1-1212
[241] On November 18, 1876, the Executive Council of Manitoba sent an address to the federal Privy Council103 in which as regards the section 31 grant it wrote:
With regard to the Half-Breed lands to be allotted to the children, under the Manitoba Act, the Council would urgently request that so soon as the lands reserved for a parish or township are drawn and allotted public announcement thereof should be made, in order that children of full age to whom lands have been allotted may have the opportunity of settling upon and that the parents or guardians of minors may have the opportunity of protecting any timber that may exist upon the land.
Council are aware of many young men who are anxiously awaiting the 2007 MBQB 293 (CanLII) announcement of the lots that have fallen to them, in order that they may settle upon the land if it be suitable. They are also of the opinion that the children of full age should have the right to sell the lands allotted to them so soon as the allotments have been made and confirmed without awaiting the issue of the Patents owing to the length of time that will be occupied before the issue can take place.
[242] This request was rejected by the Federal Government. Order in Council
January 17, 1877,104 made clear to the province that it would not be wise “to enter into any discussion about the policy which ought to be adopted by the
Government of Canada in reference to the public lands of the Dominion with the
Executive Council of the Province of Manitoba, as the Government are directly responsible to Parliament for the course which they may take upon the subject” and would deal with that issue “in the manner which the Government believe to be most favourable to the public interests, and with a full sense of their responsibility to Parliament and to the people”.
[243] Later in 1877 however, after further address from the Manitoba Legislative
103 Exhibit 1-1220 104 Exhibit 1-1233
Assembly, Canada permitted the publication of allotments. That, of course, was
what Morris had recommended in December 1873, but which had been rejected
by the Federal Government which had chosen instead to follow the
recommendation of Dennis.
[244] On January 22, 1877, Dennis wrote a letter to Taché on behalf of David
Mills, Minister of the Interior. For a variety of reasons, he proposed that the
section 31 grant be commuted from land to cash. He sought Taché’s view of 2007 MBQB 293 (CanLII)
such a proposal.
[245] On February 5, 1877, Taché replied.105
[246] In his letter, Dennis had drawn a distinction between those claimants who
were at least 18 years and those who were less than 18. In his response, Taché
acknowledged the distinction. As regards those over 18, he wrote:
The claimants of class A not being considered as minors, are the owners of their claims, and with them remains the power to dispose of or to retain them as they think proper.
[247] Taché went on to say that if they wished to retain their lands, they could
not be forced to sell. And if they wished to sell them, the government, by offering a fair price, could enable that and discourage the designs of speculators.
[248] As regards those who were minors, Taché said that it was impossible to deal with their claims “just now”. He wrote:
The Manitoba Act having received the sanction of an Imperial Act, its provisions cannot be re-adjusted by the Canadian Parliament, and I am
105 Exhibit 1-1243
very doubtful as to the willingness of the Imperial Parliament to enact for the disposal of lands set apart for minors. For my part I would not feel justifiable in recommending any action which minors, when of age, might deem as having been prejudiciable [sic] to their interests. Scarcity of land in a few years hence may render the children of Half-Breeds better able to appreciate its value than their relatives do at present, and the preservation of their grant may be the only way to secure a footing for them in their native country. What seems an impossibility just now will cease to be so when the claims will mature, and then they might be yearly disposed of in the same way as mentioned in the case of class A.
[249] Once the Federal Government commenced the final allotment, the
Manitoba Legislature, on February 28, 1877, passed The Half-Breed Land 2007 MBQB 293 (CanLII)
Grant Amendment Act, 1877106 which, effective July 1, 1877, permitted sales
by any Half-Breed having legal right to a lot of land in the grant. It then became
safe for a purchaser to make a binding transaction with a section 31 allottee who
was over the age of 21. In 1878, Canada decided to allow that Act to stand.
[250] On February 2, 1878, Manitoba passed The Half-Breed Land Grant
Act, 1878.107 This Act enabled half-breeds between the ages of 18 and 21 to sell their lands but contained protection against improvident sales by requiring the consent of the parents to the sale and acknowledgment by the person selling separate and apart from the parents, before a judge or two justices of the peace, to guard against unreasonable parental influence. Canada permitted this legislation to stand.
106 Exhibit 1-1261 107 Exhibit 1-1333
[251] On that same date, Manitoba also passed An Act respecting Infants
and their Estates,108 which amongst other things established general rules for
disposition of the estate and property of infants. This legislation provided that
sales of property needed to be approved by a judge of the Court of Queen’s
Bench. The result was that many eligible section 31 recipients sold their interests in lots at varying times and for varying prices.
[252] On June 25, 1879, Manitoba passed The Half-Breed Land Grant Act, 2007 MBQB 293 (CanLII)
1879.109 This permitted sales by power of attorney by 18 year olds in
accordance with the procedure set out in that Act.
[253] On May 2, 1885, Manitoba enacted The Quieting Titles Act, 1885.110
This Act was passed for the purpose of quieting titles in anticipation of the introduction of the Torrens system.
[254] Over time it became apparent that the Federal Government had erred in its estimate of the number of persons eligible for receipt of a section 31 grant.
In the result, it granted in excess of 1,400,000 acres but nevertheless left 993 children without land grants. Those children received scrip in lieu of land.
[255] By memorandum to the Minister of the Interior dated May 1884,111 Deputy
Minister A.M. Burgess wrote that there were about 500 claimants whose
108 Exhibit 1-1334 109 Exhibit 1-1416 110 Exhibit 1-1668 111 Exhibit 1-1613
applications had been approved but whose claims were unsatisfied because the
land had been “exhausted”. He was unable to explain the error, but recommended that scrip be issued to the children.
[256] For whatever reason action was postponed until April 1885 when Burgess submitted another report in which he explained how this shortage occurred.112
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 2007 MBQB 293 (CanLII) 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.
[257] Cabinet accepted this advice and Order in Council April 20, 1885,113 was enacted. It required that all claims had to be filed with necessary proof on or before May 1, 1886, or they would cease and determine. This expiry date was amended and extended on several occasions.
[258] In a speech made by Macdonald to the House of Commons in July 1885, talking about the shortfall of land relative to the number of claimants,
Macdonald114 recounted the events leading to this shortfall. He said the
following:
If the census that had been taken and returned by Governor Archibald had been accepted there would have been land enough in the appropriation to have settled all trouble, as well for the half-breeds who were actually registered and got their lands as for the half-breeds who
112 Exhibit 1-1655 113 Exhibit 1-1662 114 Exhibit 1-1678, page 3113
happened to be away on the plains at the time the final adjudication was made.
(3) Facts Material to Implementation of the Section 32 Grants
[259] Prior to passage of the Act, land at Red River had been taken up both within and outside the Settlement Belt. Some residents held land by way of freehold grant and others by grants of estates less than freehold. In both such
instances, the land was within the Settlement Belt and the grants were from the 2007 MBQB 293 (CanLII)
HBC.
[260] In addition, however, many residents held land as squatters, that is, they did not hold grants of land of any kind from the HBC. Those whose land was within the Settlement Belt were squatters with the sanction of the HBC whereas those outside the Settlement Belt where Indian title still existed were squatters without sanction of the HBC, such sanction not being required.
[261] One of the causes of the resistance was the concern, particularly of the
French Métis, that the Settlement upon becoming part of Canada would experience immigration, particularly from Ontario, which would result not only in a loss of their religion and culture but, as well, of their land. This concern was evident from the actions of the French Métis in the summer and fall of 1869 and was recognized by Canada as is evident from the writings or statements of representatives of the Crown.
[262] For example, Governor General Young issued a proclamation dated
December 6, 1869, addressed to the residents of Red River in which he said, in part:115
By Her Majesty’s authority I do therefore assure you, that on the union with Canada all your civil and religious rights and privileges will be respected, your properties secured to you….
[263] As well, on December 7, 1869,116 Howe advised McDougall who was to
have become the Lieutenant Governor of the North-West Territories on the 2007 MBQB 293 (CanLII) intended takeover date of December 1, 1869, that he should assure the
residents:
That all their properties, rights and equities of every kind, as enjoyed under the government of the Hudson’s Bay Company, will be continued them.
That in granting titles to land, now occupied by the settlers, the most liberal policy will be pursued.
[264] Macdonald himself in his letter to Smith on January 3, 1870,117 commented upon the first bill of rights which Smith had previously sent to him.
He told Smith that some of their claims “are altogether inadmissible” and he proceeded to comment upon “what we are willing to concede”. As well, he told
Smith:
… you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.
115 Exhibit 1-0346 116 Exhibit 1-0347 117 Exhibit 1-0372
[265] And Smith in a confidential report to Howe dated April 12, 1870,118 provided a lengthy report as to his work at Red River pursuant to the commission given him by the Governor General, including his response to the Convention of
40 in respect of the second bill of rights which it had given to him for review and comment. Clause 8 of that list of rights provided for “A Homestead and Pre- emption Law”.
[266] Smith reported to Howe that in respect of the eighth provision, he had 2007 MBQB 293 (CanLII) told the Convention:
I have been instructed by the Canadian Government — to make known to the people of the Settlement — that all property held by residents in peaceable possession will be secured to them; and that a most Liberal land policy in regard to the future Settlement of the country will be adopted, — every privilege in this respect enjoyed in Ontario or Quebec, being extended to the Territory.
[267] Reassurances continued to be given including in the discussions with the delegates from Red River leading to passage of the Act on May 12, 1870.
[268] And, of course, Cartier wrote on May 23, 1870 to Ritchot and Scott,119 wherein in reference to subsection 32(4), he said:
Gentlemen – With reference to the representations you have submitted respecting the fourth paragraph of Section 32 of the Act to establish and provide for the Government of Manitoba, in which it is stated that “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, I am in a position to give you the assurance, on the part of the members of the Government that so soon as the Government can grant the necessary titles, no payment shall be required from any of the persons mentioned in the paragraph, but that they shall be placed
118 Exhibit 1-0446 119 Exhibit 1-0499
upon the same footing as the persons mentioned in the three preceding paragraphs. ….
[269] The evidence shows that during 1871 and 1872, tension continued between the residents, particularly the French Métis, and Canada concerning landholdings. Immigrants were coming into the province and taking up land for settlement whereas the old residents were anxiously awaiting confirmation of their landholdings under section 32. 2007 MBQB 293 (CanLII) [270] Order in Council May 26, 1871, provided protection for new settlers who took up land prior to survey. This increased or at least contributed to the anxiety of the longtime residents of the community who became concerned that their claims would be adversely affected as a result.
[271] Order in Council November 11, 1872,120 provided that those entitled to make application under subsection 32(4) of the Act should be dealt with
… on the same terms as the class of settlers described in subsection (3) preceding the above; that is to say, that the occupancy ‘shall if required by the owner, be converted into an estate in freehold by grants from the Crown.’
Enactment of this Order in Council had become possible by reason of the fact that Indian title over the territory including the lands in question had now been extinguished.
[272] By letter dated November 20, 1872, to Aikins,121 Morris wrote:
I have the honour to call the attention of His Excellency the Governor General in Council to the subject of the lands in Manitoba and the claims
120 Exhibit 1-0749 121 Exhibit 1-0751
and rights of the Original Settlers and others relating thereto, as also to the question of the appropriation for the benefit of the families of the Half-Breed residents.
I am aware that until the surveys had sufficiently progressed and until the tracts to be allotted to the Half-Breeds had been determined on, it was impossible to deal with these questions.
The inaction that necessarily resulted from this position of affairs has nevertheless been made a fruitful source of disquiet and is now being used by Agitators on different sides of Local politics and from their different points of view to disturb the minds of the inhabitants of the Province and thereto to commit them to movements which will be injurious to the best interests of Manitoba. 2007 MBQB 293 (CanLII) [273] Morris then made suggestions as to how he might appease this agitation.
He addressed the Half-Breed Reserves, the issue as to the rights of common and rights of cutting hay and the land referred to in section 32. As regards the latter, he wrote:
I have further to recommend that the Public of this Province be informed that, during next Season, the lands in the occupation of residents of the Province who held under the Hudson’s Bay Company at the time of the transfer to Canada, will be surveyed, in order that the owners thereof may obtain Grants from the Crown therefor and that the land of other persons who at the said period, were in peaceable occupation of tracts of land, in those parts of the Province where Indian title was not extinguished, will also be surveyed, in order that such occupants may claim the right of pre-emption under the 32nd clause of the Manitoba Act.
[274] By letter dated December 6, 1872,122 Aikins responded to Morris’s letter of
November 20 with respect to section 32. He wrote as follows:
With respect to securing occupants under clauses 1, 2 and 3 of section 32 of the Manitoba Act, the intention is to issue Patents to all such parties as soon as possible after the surveys, now near completion, are closed and approved.
I have also further the honour to transmit you the enclosed copy of an Order in Council dated the 11th November ultimo, which secures to
122 Exhibit 1-0755
occupants under clause 4 section 32 of the Act mentioned a free grant of their respective holdings.
I note that the remainder of this document is missing. Hence, it is impossible to
know whether Aikins may have said anything more about the subsection 32(4)
lands.
[275] At about this time, the issue of “staked claims” arose. Both within the
Settlement Belt, especially in the outer parishes, and outside the Settlement Belt, 2007 MBQB 293 (CanLII) settlers had staked or demarcated land whether by marking the land with blazes,
plowing furrows around it, placing the outline of log buildings on the land or
building or placing a small shed or the like upon it.
[276] This practice had existed in the Settlement for some time. In addition,
however, some residents led by, or at the suggestion of, Ritchot had done this
between passage of the Act on May 12 and its effective date of July 15, 1870.
[277] On May 3, 1873, Canada passed An Act respecting claims to lands in
Manitoba for which no Patents have issued (S.C. 1873, c. 6),123 establishing a commission to hear and determine all claims under subsections
32(1) to (4), and a process for the issuing of patents under section 32.
However, this Act was never implemented.
123 Exhibit 1-0873
[278] On September 5, 1873, Dennis wrote Alexander Campbell (“Campbell”),
Minister of the Interior,124 proposing procedures to facilitate the granting of
patents under section 32 of the Act. He proposed:
1. On an application being received at the Land Office for a patent, should the papers filed in connection therewith as also the report of the Surveyor who surveyed the land, shew that the claimant is in possession of the land claimed, and should there be no opposition to the claim, and no reason to doubt the right of the applicant to receive patent, the papers should be forwarded to Ottawa, recommended accordingly by the local Agent of the Dominion Lands, and a patent should issue in due
course. 2007 MBQB 293 (CanLII)
[279] He also recommended that a list should be posted of all applications for patents received in which there was reason to think the title questionable and
that such applications should go before the Commissioners. As stated above, the
Act creating the Commission was never implemented and the procedure proposed by Dennis was not followed.
[280] On November 13, 1873, some residents of Ste. Agathe submitted a
petition125 setting out their claims under subsection 32(3) to land on both the
east and west sides of the Red River based on the fact that they resided on the
west side and harvested wood, hay, etc., on the east side and had done so for
many years prior to the transfer. In the petition, they stated that the surveyor
said he could not draw the lines of that part of the property situated on the east
side directly opposite to that part on the west side of the Red River. They
asserted that the property on the east side of the river had belonged to them
124 Exhibit 1-903 125 Exhibit 1-0922
from the same time and was claimed under the same title as that part of their
lands on the west side of the river, that immediately on taking lands on the west
side, they took lands on the east side of the same length and width and that the property on the east side was integral to the property overall.
[281] The petition asserted that they held the land with the sanction, permission and authorization of the HBC, that such peaceable possession was recognized under subsection 32(3) of the Act and that they would oppose whoever would 2007 MBQB 293 (CanLII) deprive them of that part of their property.
[282] A.H. Whitcher, Inspector of Surveys, wrote Dennis on November 15,
1873,126 enclosing the petition. He pointed out that there were no buildings or
improvements on the east side of the river. He wrote:
Many of the settlers on the west side of the Red River claim lots on the east side, because they have cut either wood or hay or perhaps both. This it appears to me if anything would only be a hay privilege or right of Common, but if it is accepted as occupation or possession under the Manitoba Act, then there will be little if any land in the settlement belt, or indeed in the Province which cannot be claimed in this way.
[283] On November 19, 1873, Whitcher wrote Dennis127 asking how he was to
receive and deal with applications for patents in instances where, in his opinion, parties had no claim for a patent. He asked if he had the power to refuse the application or inform the parties they had no claim under the Act.
126 Exhibit 1-0922 127 Exhibit 1-0924
[284] On November 27, 1873, the Deputy Minister of the Interior wrote
Whitcher instructing him not to accept the claims from Ste. Agathe to the lands on the east side of the Red River. He wrote:128
… I am to request You to inform the Petitioners that in the absence of evidence to shew occupation or possession of the said lands as contemplated and required by the Manitoba Act it would not appear that the right set up by them to the lands in question is of such a character that it should be necessarily respected in the survey of the lots on the River….
[285] He instructed that they would have to pursue their claims before the 2007 MBQB 293 (CanLII)
Commission and obtain a favourable pronouncement from the Commission, before their claims would be recognized by the government. But, of course, the
Act passed on May 3, 1873, creating such a Commission was never implemented.
[286] As part of the ongoing question, what was required in order to give recognition to one’s claim outside the Settlement Belt, Morris wrote the Minister of the Interior on March 25, 1874,129 in which he stated:
… I took recent occasion to examine the minutes of the Council of Assiniboia from the 4th day of May 1832 to the 25th of October 1869 with the view of ascertaining whether there was anything contained therein bearing on the land questions which have arisen here.
In doing so I discovered the enclosed important minute which is the only one dealing with the question of land apart from minutes relating to the Hay and Common rights.
This minute seems to throw light on section 32 of the Manitoba Act, subsection (4) and also would go to shew that in those parts of the Province where there had been no surveys and in the Territory as at the Portage beyond the strict limits of the Province of Assiniboia, occupation of the land by settlers had as in Ontario the effect of giving the occupant a right of preemption.
128 Exhibit 1-0926 129 Exhibit 1-0965
[287] As well, Codd wrote similarly on March 28, 1874, as follows:130
I have the honour to enclose an extract from the minutes of the Council of Assiniboia handed to me by His Honour the Lieutenant Governor, showing the conditions upon which persons were allowed to take up land outside of that part of the settlement which had been surveyed.
In my opinion this minute has an important bearing upon the question of the so-called “staked claims” [illegible] those claims to large tracts of land preferred by persons who planted stakes at the corners, or ploughed furrows previous to the transfer, for the principal argument advanced in favour of such claims is that the Act of so staking out had always been recognized by the Government of the settlement of Assiniboia as giving a valid claim to such lands, it would appear, however, from the terms of 2007 MBQB 293 (CanLII) this minute, that the Council of Assiniboia did not recognize any claims to lands outside of the surveyed portion of the settlement which was not [based] upon occupation. …
[288] The provision to which both referred in the laws of the Council of
Assiniboia provided as follows:
That in difficulties arising between persons who take land outside of the part of the Colony already surveyed, or even that exceeding the limits of the Colony, the magistrate be authorized to take for the principle that 12 chains shall be the limit of preemption rights arising from occupation.
The Council of Assiniboia recognized occupation as a requirement in order to give recognition to one’s claim in land outside the Settlement Belt, or surveyed area.
[289] On May 26, 1874, Canada passed An Act respecting the appropriation of certain Dominion Lands in Manitoba (S.C. 1874 c. 20).131
This Act combined subsections 32(3) and (4) of the Act in providing that persons who satisfactorily established undisturbed occupancy of any land within the
Province prior to, and being by themselves or their servants, tenants or agents,
130 Exhibit 1-0970 131 Exhibit 1-1000
or those through whom they claim, in actual and peaceable possession thereof
on March 8, 1869, would be entitled to obtain letters patent for such land. This
Act was amended on April 8, 1875 (S.C. 1875 c. 52)132 to change the date from
March 8, 1869 to July 15, 1870.
[290] On March 19, 1875, an Order in Council was issued authorizing the first section 32 patents. 2007 MBQB 293 (CanLII) [291] On April 8, 1875, Canada enacted An Act respecting Conflicting
Claims to Lands of Occupants in Manitoba, S.C. 1875 c. 53.133 This Act
established a commission to decide upon adverse or conflicting claims to lands
mentioned in subsections 32(3) and (4). However, it empowered the
commission to deal with claims between settlers only, but not between a settler
and the Crown, which the 1873 Act,134 though never implemented, had done.
[292] On April 30, 1875, Laird wrote Morris135 respecting this legislation and
stated:
You will see we have given Commissioners jurisdiction only in conflicting claims between settlers, and cases of heirs – not, as against the Crown. We think that can be settled through the Department according to the other Bill being actual occupation down to July 1, 1870.
The date July 1 was in error and should have been July 15, 1870.
132 Exhibit 1-1052 133 Exhibit 1-1053 134 Exhibit 1-0873 135 Exhibit 1-1063
[293] Part of the evidence to be placed before a conflicting claims commissioner was the report of the surveyor. In a memorandum dated March 4, 1876,136
Dennis provided Laird with particulars as to the protocol to be followed pertaining to applications for patent for lands under section 32 of the Act. He wrote, in part:
2. A transcript of the report of the Surveyor employed by this Department to survey the land expressly with a view to granting a patent for the same. In making this survey, the surveyor was in all cases specially instructed to ascertain and report each lot occupied, giving its 2007 MBQB 293 (CanLII) precise position and boundaries, the name of the person in possession, whether as owner or tenant, whether there was any adverse claim thereto, and if so, the facts connected with such adverse claim.
These surveys were entered upon in the spring of 1871, and were completed in 1873, with the exception of the Parish of Ste. Agathe, which was completed in the following year (1874).
The undersigned would remark that the rights of parties to any certain lands claimed as being occupied at time of the Transfer, were so well known and understood among the people of the parish at the time of the survey being made, that the Surveyors’ return of claimants and occupants in itself is very reliable evidence in the case of a claim made for patent to a given lot, and where the evidence accompanying a specific application for such lot is borne out by such return and no counter claim has been filed (although the printed Notice referred to above is and has been since the date therein a standing Public Notice) the case is assumed to be one in which a prima facie right to a patent is made out, and the papers are in due course submitted for the final decision, as to title, of the Department of Justice.
[294] Order in Council April 20, 1876,137 stated that Laird reported the existence of claims to land which, he said, do not come clearly within those provided for by the law as it stood. There were two classes of such land claims. The second was described in part as:
136 Exhibit 1-1166 137 Exhibit 1-1177
Lands alleged to have been taken up, but which were not surveyed as above or occupied, but merely marked out by the claimants, by stakes, prior to the 15th July 1870.
[295] Laird submitted that this second class was not entitled to consideration.
[296] On September 8, 1876, Whitcher wrote Dennis.138 He said that the question of possession in connection with applications for patents under the Act was still troubling him. He wrote:
The Act 38 Vic. Chap 52 requires “undisturbed occupancy and actual 2007 MBQB 293 (CanLII) peaceable possession etc” and it is difficult to determine where the line should be drawn, or to know exactly what acts of possession would be recognized.”
[297] He continued:
Mr. Codd and I were talking over these matters a few days ago, and concluded that it would be advisable to send down some of the doubtful applications in order that you might look over the papers yourself and if necessary submit them to the Minister of Justice, for opinion, returning them to us with a memo attached to each application, shewing the opinion in each case, definitely as to whether they will or will not pass. If you will be good enough to do this and have the papers returned as soon as possible, we shall be able to take action on a large number of claims which have been on file in this office for a considerable time.
You will notice that in some cases the applicants claim lands on both sides of the River. This occurs in many places in Ste. Agathe. Some of the applicants have improvements on one side of the river, and claim a lot on the other side as having been taken up in connection with the prairie lot for wood….
[298] As well, he wrote:
I hope that you will not disapprove of this unofficial action. It was thought better to adopt this course, than to send down claims recommended, a number of which might be returned, on the other hand some might be kept back which could pass. In connection with the opinions on the claims now submitted, it might be stated whether those applications for lots 8 to 12 in St. Norbert, sent down sometime ago, will pass. If I remember rightly, these were intended as test cases when sent down.
138 Exhibit 1-1202
And, he reported that none of the lots referred to in the September 8, 1876 letter were within the limits of the HBC survey.
[299] On September 23, 1876, Dennis replied to Whitcher139 stating he had discussed several of the applications with the Deputy Minister of Justice. Dennis advised acceptance of some claims but rejection of those with neither improvements nor surveys prior to transfer. 2007 MBQB 293 (CanLII) [300] Whitcher wrote October 31, 1876,140 reporting upon surveys in Manitoba,
Keewatin and the Northwest Territory, and of the business of the Surveys Office,
Dominion Lands, for the year ending at that date. In part, he wrote:
… Up to the present time, 2,604 applications for Letters Patent, under the Manitoba Act have been received. About one-fourth of these come under the head of what are known as “staked claims”; 914 have been recommended for patent; of the remainder, some will have to be referred to the Commission under the Act 38 Vic., Chap. 53. A list of 147 of these claims has been prepared in accordance with the provisions of said Act. In a large number of cases, the evidence of title is not considered sufficient to justify their being sent forward for patent. The applicants have been notified of this and requested to furnish the necessary evidence, and in some parishes, many of them have done so, while, in others, very little attention has been paid to the letters. It is hoped, however, as the people have more time during the winter to attend to these matters, that, in the course of a few months, much of this supplementary evidence will be received, and that with this, and under late regulations, a great many cases may be disposed of.
It is estimated that there are still at least 400 claims for which applications for Letters Patent may be expected.
[301] On November 2, 1876, Dennis wrote Codd141 and asked for a report from
Codd which would be “considered confidential”. The letter reported upon a
139 Exhibit 1-1204 140 Exhibit 1-1214 141 Exhibit 1-1216
meeting between Taché and the acting Minister of the Interior concerning staked claims to land in Manitoba described under class 2 in Order in Council April 20,
1876. Dennis told Codd that during the meeting the Minister “repudiated the principle that the mere staking out (without settlement) of a portion of the unoccupied Dominion land gave or could give any right, even of preemption to such land.” However, the Minister felt there were certain views respecting the claims in question urged by Taché which appeared to be not “not altogether 2007 MBQB 293 (CanLII) without some force”.
[302] Dennis outlined the arguments advanced by Taché, three of which were:
(1) that such lands “were not intended for speculation but were taken
up with the view of the several claimants making homes thereon”
and in fact “many of the parties had actually settled on or
otherwise improved their claims”;
(2) that said “lands, at the time of being staked out, had not become
property of the Dominion; that the manner in which they were
taken up was in accordance with the usage of the Colony at the
time and previously”; accordingly, “the claimants had acquired
rights in respect thereof” and it “would be an act of injustice on the
part of the Government to refuse to recognize” them;
(3) that a number of the claimants to such lands “belong to a class of
people who, not being natives, and having settled in the Red River
colony subsequent to 1835, were not among those who are entitled
by law to either land or scrip”.
[303] Dennis asked Codd to report for the information of the Minister:
(1) “Approximately, the number of these claims in the several parishes, mentioning the proportion in each parish situated in the Settlement Belt;
(2) Whether, considering all the facts connected with these claims it might be considered a reasonable concession on the part of the government to give the claimants till, say st
the 1 July next to settle on the respective lots; in the 2007 MBQB 293 (CanLII) meantime such lands to be withdrawn in legal subdivisions from the Half-Breed allotment; those of the lands which be settled on by that time to be classed with those alluded to in my instructions of 19th May last, those not bona fide settled on by that time to be treated as vacant Dominion Lands;
(3) Whether assuming such course were taken, the allotment of the Half-Breed Lands in which such claims may be situate would be embarrassed or delayed, and if either, to what extent; also, whether such course would cause embarrassment in any other way, and, if so, in what way, in dealing with the lands or claims for patent in the Province;
(4) Whether you have any reason to believe that similar claims are likely to be preferred to land on the Saskatchewan, or elsewhere in the Territories, that is to say, on the ground of having been staked out by the claimants previous to the 15 July 1870; If so, mention the situation and probable extent of land covered by such prospective claims together with any other particulars known to you connected therewith.
[304] On April 16, 1877, Z.A. Lash, Deputy Minister of Justice, wrote Dennis regarding a number of section 32 claims.142 He said the evidence submitted on one was unsatisfactory. He wrote:
142 Exhibit 1-1276
… Some of the affidavits state that the lot has been actually and peaceably occupied etc. but from the others I gather that the occupation was for the purposes of “cutting wood and hay”.
He went on to say:
Before expressing a [illegible] opinion as to the claimants right to a patent, I think evidence should be furnished as to the exact nature of the alleged occupation shewing with particularity how the land was issued and dealt with etc. etc. ….
He returned the file and awaited further referral with the new evidence.
[305] As well in that letter he reported that the evidence in respect of another 2007 MBQB 293 (CanLII) claim was not sufficient. He wrote:
… The claimant who describes himself as of the City of Hamilton, Ontario, swears on the 27 October 1874 that the lot has been occupied for a period of over eight years and he produces a deed from Robert Hourie and wife to Alexander McPherson and a deed from Alexander McPherson to the claimant. It does not appear that the possession referred to was of the nature required by the statute, nor that Alexander Hourie was the one in possession or had any right to convey.
[306] On June 5, 1877, Lash provided his opinion143 respecting a reference from the Department of the Interior, Dominion Lands Branch, as to the right of certain claimants of land to a patent. Those claimants were people in Ste. Agathe who sought patent to land on the opposite side of the river from the land where they lived where they cut wood and hay. The opinion he expressed was as follows:
I am of the opinion that such persons are not entitled to a patent of the land, as they cannot in my opinion establish “undisturbed occupancy thereof” or that they were by themselves or their servants etc. “in actual peaceable possession thereof” within the meaning of the Act.
[307] He then concluded that the Minister might consider the propriety of commuting the alleged right of cutting hay and wood by an issue of scrip or
143 Exhibit 1-1286
grant of land in accordance with the principles adopted in similar cases in other
parts of the province.
[308] On June 6, 1877, Dennis wrote a memo to the Minister of the Interior144 recommending in light of Lash’s opinion that the claims in question and others of a like character be declined. As well, Dennis said there would be no need for a special ruling or regulation respecting an issue of scrip to claimants of this class in commutation of the right of common or of cutting hay as that was already 2007 MBQB 293 (CanLII) provided for in Order in Council April 17, 1874, and that the applicants referred to need only be notified that their claim to a patent for the hay and wood lots would not be recognized but that they would receive an issue of scrip referred to and commutation generally of the right of common and of cutting hay.
[309] On October 22, 1877, Codd sent a telegram to Dennis145 stating:
Nearly half the staked claims have small improvements recently made, such as shanty or small field. Am proceeding with allotment of French parishes, reserving from 40 to 160 acres, covering such improvements according to their extent and value. Is this course approved?
[310] Codd was indicating an intention to reserve from the townships to be
allocated under section 31 those staked claims with small improvements.
[311] But on October 24, 1877, Dennis replied to Codd146 as follows:
The Minister is of opinion that without some really valuable improvements have been made upon the lands severally claimed which latter it is assumed come under Class No. 2 described in the Order in Council of the
144 Exhibit 1-1287 145 Exhibit 1-1311 146 Exhibit 1-1312
20th Apr 1876, the parties claiming are not entitled to favourable consideration.
Where valuable improvements, however, have been made, you are at liberty to carry out the proposition set forth in your telegram, but the land withdrawn in any individual case, without the area cultivated should actually exceed that quantity, is not to be of greater extent than eighty acres.
In all cases of this nature, the claimant must pay for the land in cash or scrip at the Government price of One dollar per acre, and, as regards the withdrawal of lands so claimed, and improvement thereon, the Minister directs that you be governed by the following principle.
No land to be withdrawn where less improvements have been effected 2007 MBQB 293 (CanLII) than five acres fenced and a house thereon, or ten acres fenced without a house. Improvements to such an extent to entitle the claimant to the purchase of the legal subdivision of forty acres embracing the same.
Improvements in extent greater than the above to entitle the claimant to purchase eighty acres but in no case, as already stated, without the actual area cultivated shall exceed the same, is the claimant to be allowed to purchase more than eighty acres.
[312] On December 20, 1877, Codd wrote a memorandum147 on his implementation of the instructions set out in Dennis’s letter of October 24, 1877, in the area of the Rat River. He wrote:
Such being the instructions I have now to show the manner in which they affect the claims which have been preferred to lands upon the Rat River excluding those lands which have been regularly entered under the provisions of the Dominion Lands Act — those which were surveyed by Mr. Goulet prior to a date six months antecedent to the date of the transfer — and those allowed under the Manitoba Act.
The remaining claims are 93 in number of which 4 have more than 10 acres under cultivation and being also actually resident are allowed to purchase 80 acres including their improvements.
Five are allowed to purchase 40 acres having 5 or more acres under cultivation and a house.
Forty-two are disallowed having made no improvements whatsoever.
147 Exhibit 1-1320
Eighteen are disallowed having only ploughed small patches of land in all cases less than five acres.
Twenty-four are disallowed not having a house and 5 acres under cultivation. Of these latter 10 have houses and are actually resident in them but have little and in some cases no cultivation. The remaining 14 have the frames of houses in various stages of completion and generally small pieces of land ploughed recently.
I would add that these 10 who are actually resident on the land claimed but whose claims are disallowed under the instructions I have received all have gone into occupation very recently and most own and have been until quite lately in occupation of lot upon the Red River and that it is my belief that the very recent occupation of these lands is evidence of the speculative character of the claims preferred. 2007 MBQB 293 (CanLII)
[313] In the spring of 1878, debate occurred in the Senate about staked claims and the process for resolving conflicting claims. Senators Girard and
Sutherland148 urged that it was unlawful to require actual occupancy when subsection 32(4) required only peaceable possession. They referred to the usages of the country prior to transfer including the fact that surveyors were not used in the absence of a conflict. As well, they proposed that the conflicting claims statute should be amended to include claims against the Crown.149 But on
April 23, 1878, an amendment which had been adopted by the Senate was refused by the House of Commons.150
[314] On May 5, 1879, Macdonald stated in the House of Commons151 that it was the intention of his government to recognize “such staked claims as have been followed by possession and improvement”.
148 Exhibit 1-1341 149 Exhibit 1-1346 150 Exhibit 1-1349 151 Exhibit 1-1399
[315] On February 14, 1880, the Legislative Assembly of Manitoba sent an address to the Governor General.152 Included in that document were complaints concerning the status of staked claims. The address noted:
… a certain number of people had staked out and pre-empted claims to unoccupied lands in certain parts of this Province, and were in peaceable possession of those certain tracts of land at the time of the said actual Transfer on the 15th day of July, 1870.
That nearly all of the said staked claims are now occupied and improved; and although a period of over seven years has elapsed since application
has been made to the Government by the several claimants for the issue 2007 MBQB 293 (CanLII) of the Patents to said lands, which is their right under the terms of the said Manitoba Act, no attention has as yet been paid to such applications.
The Legislative Assembly urged that no further delay should occur.
[316] On March 8, 1880, Senator Royal wrote a lengthy letter to Macdonald153 concerning the staked claims. He challenged the government’s interpretation of the words “peaceable possession” and asserted that the government, contrary to repeated assurances at the time of the resistance, was not following the most liberal policy respecting land distribution in the new province.
[317] Order in Council April 12, 1880,154 was passed. It addressed the matters raised by the Legislative Assembly in its February 14, 1880 address. Referring to that portion of the address that related to “staked claims”, it provided:
That these claims have formed the subject of repeated applications for patents, but on being submitted to the Department of Justice for opinion as to the title, the latter has in every case been reported as insufficient, that is to say, the mere fact of staking out the land, without entering into bona fide possession and occupation being found in such bona fide possession and occupation on the 15th July, 1870, did not bring that class
152 Exhibit 1-1441 153 Exhibit 1-1442 154 Exhibit 1-1447
of claims within the operation of the Manitoba Act, and therefore patents were refused.
[318] On April 29, 1880, Canada passed An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third
Victoria, chapter three, 43 Vic. c. 7,155 providing that all claims by
“occupancy” under subsections 32(3) and (4) would be barred after May 1, 1882.
[319] The complaints continued including a letter dated January 15, 1881, from 2007 MBQB 293 (CanLII) Ritchot to Macdonald156 in which he reviewed the history of the staked claims
and the fact that this had been fully explained to Macdonald and Cartier by the
Red River delegates in 1870 as a result of which subsection (4) of section 32 was
enacted in order to protect those interests. Ritchot discussed the issue and
meaning of “peaceable possession” and reiterated that he had told the Ministers
in 1870 that these lots were not inhabited, but only marked in accordance with
the usages of the country. Ultimately, Ritchot wrote:
Supposing even that the words of the Manitoba Act could be interpreted in different ways, it is nevertheless true that lands possessed as aforesaid belong to those who claim them as this was the understanding by the agreements of 1870.
[320] On February 24, 1881, Macdonald wrote Justice Miller of the Manitoba
Queen’s Bench concerning staked claims and the government’s intention to
appoint him and Dubuc as commissioners to deal with unresolved claims.157 In
the letter he wrote:
155 Exhibit 1-1452 156 Exhibit 1-1485 157 Exhibit 1-1488
In my opinion all those claims that deserve to be settled have already been adjusted and disposed of. The late Government pooh-poohed, as being fraudulent, those that still remain.
Archbishop Taché is now kicking up such a row about the matter that we have resolved to issue a commission to you and Dubuc to hear each applicant and decide each case on its own merits. The commission will say that you are to do what is legal and equitable, the words “legal” and “equitable” being used in their legal sense. That is to say the parties must have a claim which could be enforced in a court of law or equity. I write you confidentially as your co-commissioner will be very apt to lean towards the Archbishop. …
I may say that Mackenzie’s Government passed an order in council stating that these claims had no foundation whatsoever. 2007 MBQB 293 (CanLII)
[321] Order in Council February 25, 1881,158 was passed. It pertained to claims described in paragraph 2 of Order in Council April 20, 1876, which the Order in
Council February 25, 1881 stated embraced some 175 cases involving an area of approximately 45,000 acres and which were admitted to have been staked out by the claimants in June or the beginning of July 1870.
[322] The Order in Council February 25, 1881, classified those several claims into three categories. The second category was those of the staked claims, which remained exactly as they were when taken up and were being claimed by the persons who staked them out. Those lands were to be “offered to the claimants at the price of Railway Lands in the Belt in which they are found to be situated, but should the claimant in any case prefer to do so, he may accept a homestead entry for 160 acres of the lot and acquire the balance at the Railway
Lands prices before mentioned.”
158 Exhibit 1-1489
[323] As well, Dubuc and Miller were appointed commissioners to investigate and receive evidence respecting the third category of claims, namely, those claims which after being staked out were sold to others who held them for speculative purposes and had done nothing in the way of cultivation or improvement of such lands.
[324] The commissioners were to report and recommend in each case such a settlement as in their opinion would be legal and equitable. 2007 MBQB 293 (CanLII)
[325] By Order in Council May 23, 1882,159 the terms of Order in Council
February 25, 1881, were made applicable to staked claims throughout the province.
[326] On May 4, 1883, George W. Burbidge, Deputy Minister of Justice, wrote
Alexander M. Burgess, Secretary, Department of the Interior,160 stating that it was difficult to define the exact meaning of the words “occupancy” and
“peaceable possession” but that if lots were:
… fenced in, surveyed or marked out by bounds and the parties were using their respective lots as wood lots, and exercising acts of ownership each over the whole of his lot and that no other persons were cutting wood or otherwise using the lots and that there is no adverse claim, in my opinion the parties would be entitled to the patents.
[327] Order in Council June 6, 1883,161 was passed, referring outstanding matters to the Dominion Lands Board.
159 Exhibit 1-1558 160 Exhibit 1-1581 161 Exhibit 1-1585
[328] The Board established rules for dealing with staked claims under three
categories:
(a) First class staked claims: Lands staked out prior to the transfer
(July 15, 1870), and in actual occupation by the claimants at the
date of Order in Council February 25, 1881: 160 acres free and
any excess over 160 acres at $1.00 per acre; 2007 MBQB 293 (CanLII) (b) Second class staked claims: Lands staked out prior to the transfer,
but not occupied at the date of Order in Council February 25, 1881:
160 acres as a homestead, and the excess over 160 acres at the
rate of $2.50 per acre, or the whole area at $2.50 per acre, which
was the regulation price for this class of land at the time these
claims were dealt with;
(c) Third class staked claims: Lands staked out prior to the transfer
but unoccupied and unimproved, the person claiming through the
person who had staked out the land: 160 acres as a homestead
and the excess area, in most cases, at $2.50 per acre, or the whole
area, as in the case of second class staked claims, at the rate of
$2.50 per acre.
[329] Under these rules, only those who had first class staked claims, that is, who combined staking before the transfer with occupation by the claimants in
1881, would receive a free grant of 160 acres.
[330] On April 19, 1884, Canada passed the Manitoba Land Claims Act,
1884162 extending the time for bringing claims from May 1, 1882, to May 1,
1886.
[331] In 1888, the Land Board filed its report for 1887.163 As regards the claims
under the Act, it reported:
The claims to land under the Manitoba Act, … have been nearly all finally closed. There are still a few cases pending, in regard to which some evidence as to ownership or heirship is wanting, but the furnishing of this 2007 MBQB 293 (CanLII) evidence is purely a matter of time. Practically this branch of the business of the Department is closed.
[332] On March 28, 1890, Burgess wrote Dewdney, Minister of the Interior,164 proposing that a bill be passed to extend by a period of two years the time within which section 32 claims might be brought.
[333] On September 9, 1890, Burgess wrote the Commissioner of Dominion
Land165 and said that as the only class of cases still unsettled were “claims by
virtue of occupation on the 15th July, 1870, irrespective of the authority of the
Hudson’s Bay Company”, “the Government is prepared to deal with all claims
which may not already have been disposed of as a matter of grace”. The matter
of the subsection 32(4) claims was thus left open as a matter of grace.
[334] Aside from the land claims arising from subsections 32(3) and (4) of the
Act, there was also the issue of the rights of cutting hay and the rights of
162 Exhibit 1-1608 163 Exhibit 1-1818 164 Exhibit 1-1886 165 Exhibit 1-1896
common enjoyed by existing settlers as at July 15, 1870, which subsection 32(5) addressed. Collectively, these have been referred to variously as the “rights of
Common”, the “Hay Privilege” or the “Hay Rights”.
[335] In his report,166 Dr. Flanagan described the “Hay Privilege” as regulated by the Council of Assiniboia as follows:
… there was generally a double aspect to the “hay privilege”. First, occupants of river lots had the exclusive privilege of cutting hay for two to three weeks in late July and early August on the “outer two miles” 2007 MBQB 293 (CanLII) immediately behind their river lots. Second, there was a general privilege of pasturing livestock and cutting hay behind the four-mile line at all times and between the two-mile line and the four-mile line at times when the exclusive hay privilege was not in effect.
[336] In his letter of January 3, 1871,167 St. John advised Archibald that:
It has been customary for holders of lands along the rivers to enjoy a semi-proprietary right in the Prairie land immediately in rear of their holdings to the extent of two additional miles. Their right has been merely that of cutting Hay within this limit, but as this right prevents in most cases the use of the land for other purposes it amounts practically to an entire proprietorship so far as other people are concerned.
[337] He continued, however:
An unconditional grant of this subsidiary two miles would sometimes however be likely to interfere with the rights of other settlers whose properties include portions of the land referred to which are not used for Hay reserves.
[338] On February 8, 1872, the Manitoba Legislature in an address to the
Governor General168 asserted fulfillment of the rights of cutting hay and common. The address, in part, stated:
We would respectfully state that the custom of the country has always given to the possessor of a lot the exclusive right of cutting hay, and of
166 Exhibit 18, page 7 167 Exhibit 1-0557 168 Exhibit 1-0687
pasturage and common, over an extent of two miles in rear of his lot. The Legislature of Manitoba, in conformity with [s. 32(5) of the Manitoba Act] respectfully confirm the right and claim fulfillment as a right acquired by possession, and that the usage of the country from time immemorial … an usage sanctioned by positive and known law by the Act referred to … certain tracts have always been recognized as Hay Commons, the Legislature of Manitoba respectfully claim the complete fulfillment of this right.
[339] James McKeagney (“McKeagney”) and Louis Bétournay (“Bétournay”), who had been appointed by the Lieutenant Governor to inquire and report as to
the rights of common and rights of cutting hay enjoyed by settlers in the 2007 MBQB 293 (CanLII)
Province of Manitoba, wrote the Lieutenant Governor on March 6, 1873.169 In that letter, they reported having visited a number of the parishes in the province and having conferred with the leading people therein concerning the several subjects upon which they were to inquire, and reported as follows:
1. They find that there exist in the Province certain Rights both of Common and of Cutting Hay which have been held and enjoyed by settlers for many years.
These rights, although more as universally claimed throughout Manitoba, vary very much as to their character and as to the extent and manner in which they are held and enjoyed by individuals.
2. The undersigned recommend that a Board or Commission of competent persons should be appointed whose duty it should be to investigate each individual claim which may be made under the Act quieted for the commutation either of the Right of Common or Right of Cutting Hay, and award such compensation to be in full of such claim as may be fair and equitable in the premises.
[340] Ritchot, in his 1873 Notes on Manitoba,170 wrote respecting the rights of hay and common as follows:
Practice, the customs and laws of Assiniboia ensured each settler possessing these lots, an exclusive property right to all the hay found on
169 Exhibit 1-0841 170 Exhibit 1-0834
the two miles behind his first two miles, and a further right in common to the wood and the pasturage on these same two miles. The settlers of Manitoba claim these two miles that are theirs. They have enjoyed those rights since the establishment of the colony; they cultivate them for hay,… These lots are truly their property and not the property of the Government of the Dominion, who only owns waste or ungranted land (29th clause of the Manitoba Act).
Given the reference to the 29th clause of the Act rather than the 30th clause, one questions when exactly it was that Ritchot wrote this note given that as the legislation was proceeding through Parliament as a Bill, the clause referred to 2007 MBQB 293 (CanLII) was indeed clause 29 though ultimately at time of passage on May 12, 1870, and thereafter it was clause 30 of the Act.
[341] In a memorandum dated September 2, 1873, appended to Order in
Council September 6, 1873,171 Campbell recommended (and the Order in Council adopted the recommendation) that Bain and Dubuc be appointed to the board or commission created to investigate the individual claims of persons advanced under subsection 32(5) of the Act. As well, he recommended:
4th. That persons claiming the Right of cutting Hay on the outer 2 miles in those localities in the Province where the privilege was recognized by the old laws of Assiniboia, may be awarded by the Board or Commission compensation in land commencing at the rear of their respective farms and extending outwards, but such compensation in no case to extend beyond the outer 2 miles, or to be wider in extent than the front farm of the claimant, and the lines thereof in all cases to be conformed to the Township Surveys, or, they may at their option, receive scrip to cover an equal quantity of land at the rate of one dollar per acre, such scrip to be redeemable in any unoccupied Dominion land.
5th. That in all other cases where the Right of cutting Hay is established, and in all cases where a claim is established to a Right of Common, within the meaning of the said Clause, the same shall be commuted by an issue of scrip to the claimant as above mentioned.
171 Exhibit 1-0904
6th. That with the view to carrying out these regulations the outer 2 miles in those localities, where the same were recognized by the old Assiniboia Laws as the Hay Privilege, shall be withdrawn from the lands set apart for the Half Breeds, and any deficiency in the latter, caused thereby, shall be made up by taking the corresponding quantity from unclaimed Dominion lands upon the rear of the allotment.
[342] And in December 1873, Dennis told the Minister of Justice that the Council of Assiniboia only recognized the right of cutting hay in certain parishes.172 He reported:
Some of the persons so claiming, lie in those parishes where the Hay 2007 MBQB 293 (CanLII) privilege of the outer two miles was recognized under the Assiniboia law, but which land immediately in the rear of the farms of those applicants was not good hay land and they therefore were obliged to seek their hay in the marshy meadows out on the plains, it may have been from four to twelve miles distant.
Others, again, who claimed to be compensated as being now deprived of this right of cutting Hay on the open Plains, are settlers living in parts of the Province other than the Parishes where the Hay right in rear was acknowledged by the Assiniboia law.
[343] I now turn to deal with the issues raised by the parties in this litigation.
STANDING
[344] The plaintiffs in this action are 17 individuals and the MMF, a corporation.
[345] The individual plaintiffs (as named in the amended statement of claim) are members of the Manitoba Métis community and descendants of persons
(referred to in the Act as “half-breeds”) entitled to land and other rights pursuant to sections 31 and 32 of the Act. Canada and Manitoba accept these facts in this action.
172 Exhibit 1-0929
[346] The MMF was incorporated in 1967. Its president, David Chartrand, testified before me. He described the makeup and structure of the MMF. He estimated that there were approximately 100,000 to 130,000 Métis in Manitoba
and approximately 33,000 voting members of the MMF. Its role, he said, was to
“politically agitate our collective voice”.
[347] He admitted however that its membership doubtless did not include descendants of all persons entitled to rights under sections 31 and 32 of the Act 2007 MBQB 293 (CanLII) and did include persons who were not descendants of such original claimants.
There was no precise evidence introduced of the kind called for by the Supreme
Court of Canada in R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43, to
establish the identification of its members as having ancestoral connection to the
Métis of the area prior to and at July 15, 1870, so as to be entitled to whatever aboriginal rights, in this case the right to title, which those persons are alleged to have enjoyed and which such members through the MMF now seek to enforce.
[348] Mr. Chartrand testified that the MMF delivers many services to the Métis people of Manitoba and is recognized both by Canada and by Manitoba as an organization which represents in many respects the Métis people of Manitoba.
He produced correspondence received by him in his capacity as president of MMF from senior politicians in Manitoba, including the premier, and testified that he has had meetings and negotiations with senior politicians, both federal and provincial, in respect of Métis interests.
[349] The plaintiffs filed copies of The Child and Family Services
Authorities Act, C.C.S.M. c. C90,173 The Housing and Renewal Corporation
Act, C.C.S.M. c. H160,174 and The Louis Riel Institute Act, S.M. 1995,
c. L230.175 In all three Acts, the MMF is recognized as an entity with some
authority in respect of certain matters which are of interest to Métis people in
Manitoba.
[350] As well, Mr. Chartrand made reference in his evidence to various 2007 MBQB 293 (CanLII)
Memoranda of Understanding (“MOU”). One176 is an MOU between the MMF,
Canada and Manitoba, the described objectives of which are to establish a forum to work cooperatively on issues identified from time to time by the Métis people in Manitoba, to coordinate the development and implementation of policies that affect them, and the like. I note, however, that para. 10 of that document provides as follows:
10.1 Nothing in this MOU abrogates, derogates from, or creates any Aboriginal, treaty or other rights and freedoms that may pertain to the Metis people in Manitoba.
10.2 This MOU is not intended to create a legally binding agreement but is intended to reflect the mutual understanding of the Parties.
10.3 This MOU is not intended to affect the interpretation of any other agreement between the Parties.
[351] Other similar documents were filed as exhibits.177
173 Exhibit 9 174 Exhibit 10 175 Exhibit 11 176 Exhibit 1-2037 177 Exhibits 1-2040, 1-2041, 1-2049, 1-2050 and 1-2051
[352] Two such exhibits178 contain the provision that “the parties acknowledge that this MOU is not a legally binding instrument”, but rather an expression of common resolve concerning certain matters.
[353] Another179 contained the following provision:
7. This Memorandum of Understanding is made by the Parties as an expression of their common understanding. This Memorandum of Understanding does not create any legally binding rights between the Parties. Nothing in this Memorandum of Understanding
affects any Aboriginal or treaty or constitutional rights, or any 2007 MBQB 293 (CanLII) claims to lands or resources, or any other legal entitlements of the Manitoba Metis Federation Inc. and/or its members, or of any trust or obligation of the Crown.
[354] Two others contained the following provisions:
9. This Memorandum of Understanding is agreed not to be legally binding and is not intended to create nor to be construed as creating, any rights or obligations between the MMF and Hydro.180
10.1 Nothing in this MOU creates binding legal obligations on any Party nor will the MOU be used in the interpretation of any other agreement.181
[355] I am satisfied on the evidence before me that MMF does fill a role as a representative of Métis in Manitoba and is so recognized by Canada and
Manitoba. In saying that, however, it is clear to me that such representative status as enjoyed by MMF is in the nature of dealing with governments and crown agencies in a political sense. While that may have some relevance to and bearing upon the question of standing in this litigation, it is not, in itself, synonymous with or equal to legal standing.
178 Exhibits 1-2040 and 1-2041 179 Exhibit 1-2049 180 Exhibit 1-2050 181 Exhibit 1-2051
[356] Canada and Manitoba concede that the individual plaintiffs have standing.
Both, however, argue that MMF does not.
[357] The plaintiffs submit that the issue of standing has been determined and
that Canada and Manitoba are issue estopped from challenging standing. In any
event, the plaintiffs assert that MMF has standing to bring this action.
[358] The plaintiffs argue that issue estoppel arises from the decision of 2007 MBQB 293 (CanLII) Barkman J. of February 18, 1987, followed by and including the subsequent
appeals, wherein he dismissed an interlocutory motion of Canada in this action.
Canada and Manitoba say that in the circumstances, Barkman J.’s decision and
the appeals which followed did not finally determine the issue of standing and
that it is open for reconsideration by me having had the benefit of the evidence
placed before the court at trial.
[359] In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C.
853 (H.L. (E.)), Lord Guest, at p. 935, defined the requirements of issue estoppel
as:
… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[360] The Supreme Court of Canada adopted Lord Guest’s formula in Angle v.
Minister of National Revenue (1974), 47 D.L.R. (3rd) 544 (per Dickson J.) at
p. 555.
[361] More recently, in Danyluk v. Ainsworth Technologies Inc., [2001]
2 S.C.R. 460, 2001 SCC 44, Binnie J., for the court, wrote at p. 481:
The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party … has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: …
[362] Canada argues that the first two elements of Lord Guest’s formula have 2007 MBQB 293 (CanLII) not been met. That is, it asserts that the question now before me is not the same question decided by Barkman J. and that his decision was not final.
[363] I turn then to consider the judgment of Barkman J. and the appeals which followed.
[364] Canada moved before Barkman J. for an order to strike out the plaintiffs’ statement of claim and to dismiss their action on three grounds, namely, that it disclosed no reasonable cause of action against Canada, that the plaintiffs were not proper parties having no standing to claim the relief sought, and that the statement of claim failed to disclose a justiciable issue. At the time of the motion, the only relief sought in the statement of claim was a declaration that certain enactments listed in the statement of claim were ultra vires the
Parliament of Canada and the Legislature of Manitoba.
[365] Barkman J. rendered his judgment in Dumont v. Canada (Attorney
General) on February 18, 1987, dismissing Canada’s motion. His judgment is reported at (1987), 48 Man. R. (2d) 4 (Q.B.), [1987] M.J. No. 108 (Q.B.) (QL).
[366] While there were three grounds advanced in support of the relief sought, in my view, the motion was argued and considered by Barkman J. as though it were really a motion to strike on the basis that the statement of claim disclosed no reasonable cause of action. I say that because there was no evidence placed 2007 MBQB 293 (CanLII) before Barkman J. on the motion and he accepted the facts pleaded in the statement of claim as proved. This is required when considering a motion to strike a statement of claim as disclosing no reasonable cause of action, but it is not the law or practice when determining the issue of standing.
[367] At p. 8 of his judgment, Barkman J. made appropriate reference to principles fundamental to deciding a motion to strike a statement of claim as disclosing no cause of action, as follows:
[14] It is agreed by counsel for the Attorney General of Canada that on an application to strike a statement of claim, the facts pleaded must be taken as proved.
[15] The court, on a motion to strike, shall only grant the application in cases that are plain and obvious. …
[368] Barkman J. dealt with what he described as the ground of standing at p. 10 of his reasons, as follows:
[27] The first ground of the applicants’ submission, that the plaintiffs are not entitled to standing in a public interest suit, is, in my opinion, not substantiated.
He then went on to provide his rationale for that conclusion. Dealing with the corporate plaintiffs, he wrote:
[29] The corporate plaintiffs allege they represent thousands of descendants of the “half-breeds”. It is clear from these allegations that the legislation in question applies to a specific group or class.
Barkman J. then made reference to the then leading cases on the issue of public interest standing and adopted certain comments of Martland J. in Minister of
Justice v. Borowski, [1981] 2 S.C.R. 575, [1981] S.C.J. No. 103 (QL). 2007 MBQB 293 (CanLII)
[369] At pp. 10-11 of his judgment, he wrote:
[32] The appellant (defendant) argues that the Borowski case has been restricted by the Dismantle case [Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441] and that there is a requirement of evidence of a current violation of the plaintiffs’ rights. If the allegations in the statement of claim are accepted as proven, then I am satisfied that there is current violation of the plaintiffs’ rights relating to the “Metis Reserve” which, it is alleged, has not been established.
[33] The court, on an application to strike the statement of claim is in no position to deal with the merits of the plaintiffs’ claims which must be dealt with by the court after hearing all of the evidence of the parties.
[370] Aside from the fact that there was no evidence before him, it also appears from his judgment that no cases were referred to him dealing with the question whether aboriginal rights may be held by a corporation, nor was there any apparent consideration by the court as to whether there should be any differentiation between the individual plaintiffs and the corporate plaintiffs or either of them (in addition to the MMF, there was then another corporate plaintiff, namely, Native Council of Canada Inc.) on the question of standing by reason thereof, or otherwise.
[371] I conclude from his reasons for decision and the manner in which he dealt
with the motion before him that he viewed the motion as one of deciding whether the statement of claim should be struck out as disclosing no cause of action and he did not consider the question of the plaintiffs’ standing as a
discrete issue in the case.
[372] The order entered April 8, 1987, which resulted from Barkman J.’s
decision, and which was approved as to form by counsel for all parties, described 2007 MBQB 293 (CanLII)
the application as one “for an Order striking out the Statement of Claim and
dismissing the action….” Consistent with Barkman J.’s reason for judgment that
the question of standing was not advanced as a ground for the substantive relief
sought, the order made no mention of standing or of its having been decided as
a discrete issue. While this is not conclusive of the question of issue estoppel, it
is in my view some indication of Barkman J.’s mindset or intention in addressing
standing on the application which he heard.
[373] Barkman J.’s decision was appealed. The Court of Appeal’s decision is
reported at [1988] 5 W.W.R. 193, a judgment delivered June 17, 1988. The
appeal was allowed with O’Sullivan J.A. dissenting. The majority did not deal at
all with the issue of standing. Twaddle J.A., writing for the majority, dealt only
with the issue of justiciability.
[374] O’Sullivan J.A., however, did deal with the issue of standing in his dissent.
[375] The plaintiffs, in their argument, make reference to certain statements of
O’Sullivan J.A. on the issue of standing. They point out that at p. 197 of the
decision, he wrote:
In my opinion, it is impossible in our jurisprudence to have rights without a remedy and the rights of the Métis people must be capable of being asserted by somebody. If not by the present plaintiffs, then by whom?
[376] And, at p. 201, O’Sullivan J.A. wrote:
In my opinion, the plaintiffs are suitable persons to assert the 2007 MBQB 293 (CanLII) claims of the half-breed people and their suit should be allowed to go forward… . I would dismiss the application to strike out the statement of claim.
Again, there was no apparent consideration of any differentiation between the
individual plaintiffs and the corporate plaintiffs, or either of them, on the
standing issue.
[377] But O’Sullivan J.A. also wrote, at pp. 197-98:
It must be noted that the existence of the Métis people is asserted in the Constitution as of the present, not simply as of the past. Each individual plaintiff can, I think, prove indisputably his membership in the Métis nation. … In any event, the question of their membership in this nation should not be called into question at the preliminary stage of a motion to strike out.
[378] I take from that comment that O’Sullivan J.A. was clearly appreciative of
the fact that this was a motion to strike and that the issue of standing (although his comments appear to relate to the individuals and not MMF) was not something that should be called into question at the preliminary stage of a motion to strike out. In other words, the question of standing in his view was something that should be determined later on.
[379] The plaintiffs were successful in seeking leave to appeal to the Supreme
Court of Canada. They assert that in their application for leave, the plaintiffs argued the issues of standing, justiciability, and the practical utility of the declarations sought. At para. 154 of their written argument before me, the following appears:
… The plaintiffs addressed the issue of standing as follows:
3. The Applicants (that is, the Plaintiffs) are precisely the persons who, as individuals, families, and as a people, have standing to challenge 2007 MBQB 293 (CanLII) the constitutional validity of the impugned federal and provincial statutes and orders-in-council.
a) The Plaintiffs say that they have the right, as the individual descendants of the persons described in Sections 31 and 32 of the Manitoba Act, to seek a declaration that the impugned federal and provincial statutes and orders-in-council are invalid.
b) The Plaintiffs are members of the “families” referred to in Section 31 of the Manitoba Act, and for whose benefit the land was to be allotted under that section.
c) They have the right, as the Métis people, described in s. 35 of the Constitution Act, 1982, to seek a declaration of unconstitutionality regarding the measures which violated those provisions of Sections 31 and 32 of the Manitoba Act intended for their benefit.
[380] I note from the foregoing that the basis of the argument was the rights or interests of the individual plaintiffs. There was no argument, at least none made known to me, that the application for leave made any reference to standing of either of the corporations then named as plaintiffs.
[381] Having obtained leave, the case was argued before the Supreme Court of
Canada which, on March 2, 1990, rendered its decision reported at [1990]
1 S.C.R. 279. Wilson J. delivered the judgment of the court. The judgment was
brief. There is no reference whatsoever to the issue of standing. The court’s judgment related only to its conclusion that Canada had not met the test required to strike out a statement of claim, namely, that its outcome was “plain and obvious” or “beyond doubt”. The court found the issues to be justiciable and that the action should proceed to trial. It, therefore, allowed the appeal and set aside the order of the Court of Appeal striking out the plaintiffs’ claim.
[382] Having considered the judgments of the various courts dealing with 2007 MBQB 293 (CanLII)
Canada’s motion to strike the statement of claim, I conclude that it is not clear that the decision was, or was intended to be, a final decision in respect of the issue of standing.
[383] In any event, the case now before me is not the same case as was before
Barkman J. True, the standing question is the same albeit that one of the corporate plaintiffs is no longer a party, but the issues which must now be decided include not only the declaratory relief sought at the time the motion came before Barkman J. but additional relief, namely:
(1) aside from the declaration that certain enactments of Canada and
Manitoba were ultra vires, additional relief was sought, namely a
declaration that those enactments were otherwise unconstitutional;
(2) a declaration that Canada failed to fulfill its obligations, properly or
at all, to the Métis under sections 31 and 32 of the Act, and
pursuant to the undertakings given by the Crown;
(3) a declaration that Manitoba, by enacting certain legislation and by
imposing taxes on lands referred to in section 31 of the Act prior to
the grant of those lands, unconstitutionally interfered with the
fulfillment of the obligations under section 31 of the Act;
(4) a declaration that there was a treaty made in 1870 between the
Crown in right of Canada and the Provisional Government and
people of Red River. 2007 MBQB 293 (CanLII)
The fundamental issues before the court in the lawsuit have clearly changed.
[384] For the foregoing reasons, I therefore conclude, following the dictum of
Binnie J. in Danyluk, supra, that the plaintiffs have failed to establish the preconditions for the operation of issue estoppel which is the first of a two-step analysis as to whether issue estoppel should be applied.
[385] Notwithstanding this, I will turn to consider the second part of the two- step analysis, namely, whether as a matter of discretion issue estoppel ought to be applied.
[386] In Danyluk, Binnie J. went on to consider the question of the exercise of the discretion. At p. 492, para. 62, he confirmed, “There is no doubt that such a discretion exists.” He did, though, adopt the comments of Estey J. in General
Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72 at 101, [1983] S.C.J. No.
9 (QL), “that in the context of court proceedings ‘such a discretion must be very limited in application’.”
[387] At pp. 492-93 of Danyluk, Binnie J. wrote:
¶ 63 In Bugbusters, supra [British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.)], Finch J.A. (now C.J.B.C.) observed, at para. 32:
It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can
apply, the fact that they may be satisfied does not automatically 2007 MBQB 293 (CanLII) give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.
Apart from noting parenthetically that estoppel per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable in origin), I think this is a correct statement of the law. Finch J.A.’s dictum was adopted and applied by the Ontario Court of Appeal in Schweneke, supra, at paras. 38 and 43:
The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrine exist… . The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances. In exercising the discretion the court must ask — is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?
. . .
… The discretion must respond to the realities of each case… .
[388] What are the factors to be considered in the exercise of the court’s discretion? The list is an open one. It should be fact specific to the case in question.
[389] As for allowing the doctrine of issue estoppel to prevail, the factors are the usual and the obvious, namely, finality in litigation, which then avoids the prospect of inconsistent decisions, the preservation of judicial resources, economic efficiency, fairness to the plaintiffs in this case in not having to re-litigate an issue that has previously been decided, and others.
[390] On the other hand, there are, in my view, in this case many factors which would support an exercise of discretion against the application of the doctrine of 2007 MBQB 293 (CanLII) issue estoppel. Some of these are the following:
(1) My expressed view that the expectation of Barkman J. and of
O’Sullivan J.A. was that the determination of standing was with
respect to determination of the interlocutory motion to strike only,
not to the issues that the court would address at trial.
(2) There was no evidence before the court in respect of the motion
heard by Barkman J. and, of course, no evidentiary basis for the
court’s consideration in the appeals.
(3) The case has changed. The declarations now sought are different
than the sole declaration sought by the action when the motion to
strike was adjudicated.
(4) In none of the decisions was there any discussion as to possible
differentiation between the individual plaintiffs and the corporate
plaintiffs, or either of them.
(5) The law as to who may hold aboriginal rights and as to standing
has developed since the motion to strike was adjudicated. This is
evident from the decisions of Maurice et al. v. Canada (Minister
of Indian Affairs and Northern Development) et al. (1999), 2007 MBQB 293 (CanLII)
183 F.T.R. 9, [1999] F.C.J. No. 1962 (T.D.) (QL), Native Council
of Nova Scotia v. Canada, 2002 FCT 6, [2002] F.C.J. No. 4
(T.D.) (QL), First Nations of Saskatchewan v. Canada
(Attorney General), 2002 FCT 1001, [2002] F.C.J. No. 1324
(T.D.) (QL), and Canadian Council of Churches v. Canada
(Minister of Employment and Immigration), [1992] 1 S.C.R.
236, [1992] S.C.J. No. 5 (QL).
[391] Maurice et al., supra, was a claim by two individuals, Ambrose and
Mervin Maurice, which arose from the defendants’ refusal to pay certain compensation to them equal to that paid to other aboriginal peoples. The Metis
Society of Saskatchewan Sapwagamik Local 176 Inc. was a corporation whose members resided in or near the community of Sapwagamik in northern
Saskatchewan. The individual plaintiffs were president and vice-president, respectively, of the Society. The Society and the individual plaintiffs were represented by the same counsel.
[392] At p. 10 of her reasons for judgment, Reed J. wrote:
[6] In the Statement of Claim, the Society is described as representing the interests of the Métis persons who resided in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.
[393] In addressing the standing issue, Reed J. wrote that the requirements for
public interest standing were set out in Canadian Council of Churches, 2007 MBQB 293 (CanLII)
supra, and stated the three criteria identified by Cory J. in that judgment. At
p. 11, she wrote:
[8] … There is no doubt that the first two requirements are met insofar as the Society is concerned. The third element, however, does not apply in the present situation. An action by private litigants, Ambrose and Mervin Maurice, is in existence.
Reed J. wrote that the plaintiffs argued that the Society was entitled to standing
as it could be expected to play at least two supporting roles: (1) as a backup to
the plaintiff in the event of death, injury or some other contingency that would prevent the individuals from continuing, and (2) to ensure that all arguments and points of view considered by affected Society members to be relevant to the issues in question would be advanced. In addition, the plaintiffs argued that it would be a benefit to the administration of justice to have the community who
would be affected by the decision involved in the litigation.
[394] Reed J. found that the Society was not a necessary party to the litigation,
concluding that the action could be effectually and completely settled without the
Society as a party.
[395] In Native Council of Nova Scotia, supra, the defendants moved, inter alia, for an order that the Native Council of Nova Scotia cease to be a party to the action. The individual plaintiffs were off-reserve Indians who claimed that the defendants had breached the duty to consult owed to them with regard to certain agreements. Native Council of Nova Scotia was a registered society. The court ordered that Native Council of Nova Scotia be removed as a plaintiff. It held that Native Council did not have the same interest as the individual 2007 MBQB 293 (CanLII) plaintiffs, that the relief sought by the plaintiffs related to the duty of consultation owed to individuals, and that Native Council would not be owed that duty even if its members were.
[396] In his reasons, Blanchard J. wrote:
¶ 11 The jurisprudence of this Court has dealt with the status of incorporated bodies representing aboriginals. In Barlow v. Canada, (2000) 186 F.T.R. 194, at paragraph 61, Mr. Justice Teitelbaum stated that an incorporated body representing aboriginals does not have treaty rights and, since it does not have the same interests in the proceeding as individuals, it cannot bring a representative action.
¶ 12 In Maurice v. Canada (Minister of Indian Affairs and Northern Development), (1999) 183 F.T.R. 9, Madam Justice Reed had to decide whether or not the “Metis Society of Saskatchewan Sapwagamik Local 176 Inc.” should be removed as a plaintiff. At paragraph 6 … of her reasons, Justice Reed stated:
In the Statement of Claim, the Society is described as representing the interests of the Metis persons who reside in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.
¶ 13 In my opinion, the NCNS should be removed as a party. The NCNS, just as the Metis Society of Saskatchewan Sapwagamik Local 176 Inc., is a registered society and, as a result, does not have the same interest as the individual plaintiffs. The relief sought by the individual plaintiffs relates to the duty of consultation owed to them by the defendants. As stated by Justice Reed in Maurice, supra, the NCNS would not be owed this duty even if its members might be. …
[397] In First Nations of Saskatchewan, supra, the defendant moved to have the plaintiff, Federation of Saskatchewan Indian Nations (the “FSIN”), cease to be a party on the grounds that it was not a necessary party. The 2007 MBQB 293 (CanLII) plaintiffs were the FSIN and individual treaty Indians from Saskatchewan. The principal issue in the action was whether the Firearms Act, S.C. 1995, c. 39, and the regulations made under that Act infringed the treaty rights of treaty
Indians in Saskatchewan. Declaratory and injunctive relief was sought against the Crown. In his judgment, Hugessen J. wrote:
¶ 7 On the question of standing, the twin tests of interest and necessity were enunciated by the Supreme Court in Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575 at 598:
… to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the court.
¶ 8 As to interest, a number of recent decisions have held that incorporated entities which represent aboriginal people cannot claim to have a direct interest in claims of treaty or aboriginal rights. As a result, standing cannot be granted to these organizations on the basis of a direct interest in the matter….
¶ 9 The plaintiffs in this action claim that the Firearms Act infringes the treaty right of the “individual members of the First Nations” to hunt, including the right to use firearms while hunting. These treaty rights belong to the members of the FSIN, not the FSIN itself….
¶ 10 Likewise, as to necessity, it is clear that the FSIN is not a necessary party because other individual plaintiffs can bring forward the same challenge, and have, in fact, done so.
The comments of the courts in the foregoing cases, in my view, apply to the
MMF here.
[398] Since completion of argument, Canada referred me to the case of
Labrador Metis Nation v. Newfoundland and Labrador (Minister of
Transportation and Works), 2006 NLTD 119, [2006] N.J. No. 213 (QL), a 2007 MBQB 293 (CanLII) decision delivered July 19, 2006. I have read the decision and have considered the brief remarks provided by letter from counsel for both Canada and the plaintiffs. In my view, that case is clearly distinguishable from the case before me and, with respect, is of no persuasive authority in the context of this case.
[399] MMF is not by its membership co-extensive with those individuals who were, or their descendants who perhaps are, entitled under sections 31 and 32 of the Act. Section 31 makes clear that the grant was to be divided among the children of the half-breed heads of families residing in the province at the time of the said transfer to Canada, and section 32 makes clear that its purpose is the quieting of titles and assuring the settlers in the province peaceable possession of the lands now held by them.
[400] Evidence which was before me at the trial, but not before Barkman J., from the president of the MMF was that the membership of the MMF doubtless includes people whose descendants had, and who themselves have, no interest
under sections 31 and 32 and, as well, doubtless does not include people who
are descendants of people who had an interest under sections 31 and 32 of the
Act.
[401] Both the development of the law which recognizes the difference between individuals and a corporation respecting enjoyment of aboriginal rights and treaty rights and the fact that the membership of the MMF is not co-equal to those entitled under sections 31 and 32 of the Act are matters before me which were 2007 MBQB 293 (CanLII) not before Barkman J. or the courts on appeal at the time the issue of standing was considered as part of the interlocutory motion to strike the statement of claim.
[402] There has, in my view, been a further development of the law as to entitlement to public interest standing in litigation. While that development was not a change in the law, there has been direction from the Supreme Court of
Canada in Canadian Council of Churches, wherein the court, as Charron J.A.
described in Canadian Civil Liberties Assn. v. Canada (Attorney General)
(1998), 161 D.L.R. (4th) 225, [1998] O.J. No. 2856 (QL), maintained the criteria
set out in the earlier cases but “clearly opted for a restrictive approach in their
application” (p. 235, para. 21).
[403] Canadian Council of Churches was a case wherein the Canadian
Council of Churches, a federal corporation, sued for a declaration that many of
the amended provisions in the Immigration Act, 1976, S.C. 1976-77, c. 52, as
am. by S.C. 1988, c. 35 and c. 36, violated the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, R.S.C. 1985, App. III.
Canada brought a motion to strike the action, one of the grounds being that the
Council did not have standing. Cory J., writing for the court, stated, at pp. 252-
53:
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack 2007 MBQB 293 (CanLII) by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that that designation implies. … Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.
. . . . .
It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?
[404] He addressed that third aspect at p. 254:
It is this third issue that gives rise to the real difficulty in this case. The challenged legislation is regulatory in nature and directly affects all refugee claimants in this country. Each one of them has standing to initiate a constitutional challenge to secure his or her own rights under the Charter. The applicant Council recognizes the possibility that such actions could be brought but argues that the disadvantages which refugees face as a group preclude their effective use of access to the court. I cannot accept that submission. Since the institution of this action by the Council, a great many refugee claimants have, pursuant to the provisions of the statute, appealed administrative decisions which affected them. … It is clear therefore that many refugee claimants can and have appealed administrative decisions under the statute.
[405] The comments of Cory J. relative to the question — is there another
reasonable and effective way to bring the issues before the court — is
particularly apt here. Not only is there another reasonable and effective way of
doing so other than by MMF, the obvious fact is that it has been done.
Seventeen individual plaintiffs are parties in this action and the defendants
concede that they have standing to bring their claim before the court as they
have done in the trial before me. 2007 MBQB 293 (CanLII)
[406] I have no doubt on the evidence that the MMF fulfills a significant role on
behalf of many of the Métis people in Manitoba today. Indeed, in future negotiations with Canada and Manitoba for a land claims agreement, whether with or without the benefit of declaratory relief, the MMF may well be requested by the individual plaintiffs in this action, or by the membership of MMF, or by
Canada and Manitoba, to lead or be an active participant in such negotiations.
All of that, however, is a very different matter than the legal issue of standing in this litigation.
[407] In the circumstances of this litigation, even were I of the view that the criteria necessary to establish the doctrine of issue estoppel had been met, I would have exercised my discretion for the reasons given and not allowed that doctrine to prevail. In the result, I conclude that the defendants are permitted to reargue the issue of standing and having considered the argument, for the foregoing reasons, I deny MMF standing in the action.
LIMITATION OF ACTIONS
[408] The time frame material to the plaintiffs’ action is approximately late 1869 to 1890. It was during that period that the Red River delegates were selected,
the negotiations between them and Macdonald and Cartier occurred, the Bill was introduced into and became the Act passed by Parliament, the Provisional
Government heard the report of Ritchot and voted approval of the Act, the
Imperial Parliament passed the Constitution Act, 1871, the Province of 2007 MBQB 293 (CanLII)
Manitoba and its Legislative Assembly came into being, and the administration
and implementation of sections 31 and 32 of the Act, including the passage by
both Canada and Manitoba of the impugned legislation in this action, occurred.
[409] The plaintiffs’ action is founded upon sections 31 and 32 of the Act
including the negotiations leading to the Act. They assert a breach of treaty
and/or agreement, the breach of sections 31 and 32 of the Act by the passage
of unconstitutional statutes and orders in council by Canada and by Manitoba in
the years following 1870, as particularized in the statement of claim, and
breaches of other duties owed by Canada to the plaintiffs, all having to do with
the fulfillment of the alleged obligations imposed upon Canada toward the
children of the half-breed heads of families residing in Manitoba at July 15, 1870
(section 31) and toward settlers in the province (and particularly in respect of
this case, Métis settlers) at that time (section 32).
[410] The plaintiffs assert that their action against Canada is founded upon a
challenge to the constitutionality of federal legislative measures and, more
comprehensively, a claim that Canada failed to discharge a fiduciary duty toward the half-breed children, which duty they argue was constitutionally mandated by section 31. The plaintiffs assert that their action against Manitoba is founded upon a challenge to the constitutionality of provincial legislation as particularized in the statement of claim.
[411] The plaintiffs acknowledge that in the ordinary case limitation periods apply. They assert, however, that this is not an ordinary case and in particular 2007 MBQB 293 (CanLII) that where, as here, a constitutional challenge is brought, limitation periods do not apply.
[412] Canada, on the other hand, argues that The Limitation of Actions Act should apply and that the plaintiffs’ action should be dismissed as statute barred.
It asserts that on the facts of this case, those persons entitled to rights under sections 31 and 32 of the Act would have been aware of their rights and, as well, would have been aware of the manner in which Canada administered and implemented the legislation. In short, Canada says that any failure on its part would have been well known to those persons who had the right to complain, by at least 1885 and probably earlier.
[413] Manitoba does not assert that a particular limitation date applies in this action as against it. It says it is unlikely that a provincial statute can remove the right to a constitutional remedy. It submits, however, that the policy behind limitation dates applies to constitutional cases and that there is a valid reason for
the courts to insist that these matters be brought in a timely fashion. Manitoba
asserts that when one is required to determine the vires of legislation, it is
essential that a pith and substance analysis be done and in order to do so, it is
necessary to understand the purpose and effect of the legislation in question. It
is critical, says Manitoba, in the proper undertaking of this task to have an understanding of the social context, culture and needs of the community extant
at the time of passage of the legislation. 2007 MBQB 293 (CanLII)
[414] In support of their argument that no limitations legislation is applicable in
this case because it is one where a constitutional challenge is brought, the
plaintiffs rely upon Air Canada v. British Columbia (Attorney General),
[1986] 2 S.C.R. 539, [1986] S.C.J. No. 68 (QL).
[415] In that case Air Canada sought to challenge the constitutional validity of the British Columbia Gasoline Tax Act. To be able to commence action to do so, Air Canada had to obtain a fiat from the provincial Crown. The Executive
Council, on the advice of the provincial Attorney General, recommended that the
Lieutenant Governor deny the fiat, which he did. This action was a challenge to that denial. The Supreme Court of Canada allowed Air Canada’s application and granted an order in the nature of mandamus directing the Attorney General of
British Columbia to advise the Lieutenant Governor to grant his fiat to
Air Canada’s petition.
[416] At p. 543 of that judgment, La Forest J. wrote:
The applicable law on this issue evolved from the well established principle that neither Parliament nor a legislature can preclude a determination of the constitutional validity of legislation.
[417] I note, however, that La Forest J.’s comments were made in the context of that case, not in the context of a Limitation of Actions Act argument.
[418] Indeed, that was made clear by the fact that La Forest J. continued the above quoted remark as follows:
… That principle was thus expressed by Laskin J. (as he then was) in 2007 MBQB 293 (CanLII) Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 151:
The question of the constitutionality of legislation has in this country always been a justiciable question. Any attempt by Parliament or a Legislature to fix conditions precedent, as by way of requiring consent of some public officer or authority, to the determination of an issue of constitutionality of legislation cannot foreclose the Courts merely because the conditions remain unsatisfied.
… and by his comments at pp. 549-50:
Finally, counsel for the respondent argued that a judgment along these lines would preclude the province’s relying not only on Crown immunity, but also on limitation periods, retroactive remedial legislation and mutual mistake of law to retain monies collected under ultra vires legislation. While I do not wish to enter into these issues at any length, I do not think this conclusion necessarily follows. There is a difference between an executive act directly interfering with a recourse to the courts for the recovery of monies under an allegedly unconstitutional statute and relying on general principles of law like limitation periods which are aimed at different purposes, in that case, barring stale claims. The significance of this distinction is best left to be raised in the principal action when the matter, which was simply touched upon in this Court, can be examined in depth.
[419] I note as well that Thorson v. Attorney General of Canada, [1975]
1 S.C.R. 138, [1974] S.C.J. No. 45 (QL), was not a case involving the issue of the
applicability of limitations defences in actions wherein constitutional challenges are being advanced.
[420] The plaintiffs also rely upon the comment of Twaddle J.A. in Dumont v.
Can. (A.G.), [1988] 5 W.W.R. 193 (Man. C.A.), [1988] M.J. No. 327 (QL). That decision was in respect of an earlier application in the present case, wherein, at p. 207, he wrote:
The courts can determine the constitutional validity of legislation 2007 MBQB 293 (CanLII) no matter how old it is.
For that, Twaddle J.A. relied upon A.G. of Manitoba v. Forest, [1979] 2 S.C.R.
1032, [1979] S.C.J. No. 86 (QL), wherein the Supreme Court of Canada held that the Official Language Act, S.M. 1890, c. 14, was inoperable although it had been enacted almost 90 years before.
[421] But again, in my view, one must look at Twaddle J.A.’s comments in full context. What he wrote at pp. 207-8 was:
What the court is being asked to consider in this case is the constitutional validity of spent legislation which does not affect anyone’s current rights. The rights affected by the impugned legislation were the statutory rights of individuals who are now deceased. These rights are not being pursued individually by the legal representatives of the persons whose rights they were, but generally by descendants whose degree of relationship is not even stated.
The courts can determine the constitutional validity of legislation no matter how old it is. Thus, in A.G. Man. v. Forest, [1979] 2 S.C.R. 1032 … the Supreme Court of Canada held that the Official Language Act, S.M. 1890, c. 14, was inoperable although it had been enacted almost 90 years before. The differences in that case from this are, however, quite significant. The language rights conferred by the Manitoba Act were conferred on the public generally. They were conferred not only on persons then alive, but also on all future generations.
[422] The law with respect to the rationale for limitations statutes is trite. In my view, however, it would be useful to make reference to comments made in a few cases which I believe are apposite for this case.
[423] In Novak v. Bond, [1999] 1 S.C.R. 808, [1999] S.C.J. No. 26 (QL),
Iacobucci and Major JJ., in dissent, wrote the following, at p. 816:
¶ 8 Almost all applications of limitations statutes will seem harsh. But their finality should not obscure their value. They bring needed stability to society by enabling potential defendants to plan their affairs in the safe 2007 MBQB 293 (CanLII) assumption that stale claims cannot be raised against them. They minimize the risk that evidence relevant to the claim will be lost. In addition, they are an incentive for plaintiffs not to “sleep on their rights”. See Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 34.
[424] McLachlin J., for the majority, wrote, at p. 839:
¶ 64 In Peixeiro v. Haberman, [1997] 3 S.C.R. 549, this Court affirmed its earlier identification of the traditional rationales of limitations statutes in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at pp. 29-30. Limitations statutes were held, at p. 29, to rest on “certainty, evidentiary, and diligence rationales”. In M.(K.), supra, this Court noted at pp. 29-30:
Statutes of limitations have long been said to be statutes of repose…. The reasoning is straightforward enough. 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….
The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim….
Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion.
[425] In Wewaykum Indian Band, supra, Binnie J., for the court, wrote, at pp. 304-5:
¶ 121 The Cape Mudge Band argues that the limitation periods otherwise applicable in this case should not be allowed to operate as “instruments of injustice”…. However, the policies behind a statute of limitations (or “statute of repose”) are well known…. 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. As the Law Reform Commission of British Columbia wrote in support of an “ultimate” 30-year limitation period in 1990:
If there are limitation periods, conduct which attracts legal consequences is more likely to be judged in light of the standards existing at the time of the conduct than if there are no restrictions on the plaintiff’s ability to litigate. This rationale for the limitation 2007 MBQB 293 (CanLII) of actions is of increasing importance, given the rate at which attitudes and norms currently change. New areas of liability arise continually in response to evolving sensitivities.
[426] And, in M.M. v. Roman Catholic Church of Canada et al. (2001), 160
Man. R. (2d) 265, 2001 MBCA 148, the Manitoba Court of Appeal wrote, at pp. 276-77:
[43] In Graeme Mew, The Law of Limitations (Toronto and Vancouver: Butterworths, 1991), four broad categories of reasons for limitation periods are identified (at pp. 7-8):
. . . . .
3.2. Evidentiary Concerns
With the passage of time between the occurrence of events giving rise to a claim and the adjudication of the claim, the quality and availability of the evidence will diminish. Memories will fade, witnesses will die or move away, and documents and other records will be destroyed. If a point in time is reached when evidence becomes too unreliable to form a sound basis for adjudication, a limitation period should prevent the claim from being adjudicated at all.
. . . . .
3.4. Judgmental Reasons
If a claim is not adjudicated until many years after the events that give rise to it, different values and standards from those prevailing
at the time the events occurred may be used in determining fault. Because of changes in cultural values, scientific knowledge, and societal interests injustice may result. Can it be said that the conduct of the “reasonable person” as perceived by a court today would accord with the view taken by a judge of an earlier generation?
[427] While none of Novak, supra, Wewaykum Indian Band or M.M., supra was a case involving the constitutional validity of legislation, the foregoing comments from these cases, in my view, merit consideration in this case. There
is here a considerable mass of material, most of it archival. The plaintiffs argue 2007 MBQB 293 (CanLII) these materials are tantamount to having the people involved in the process at the material time appearing in the courtroom as witnesses.
[428] That, in my view, is not so. I have no doubt that the ability to have those individuals or at least some of them testify and be challenged in respect of their testimony would have been, if not essential, extremely helpful in endeavoring to ascertain what actually occurred in respect of the negotiations leading up to passage of the Act, and more importantly, what actually occurred in the administration and implementation of the Act including the enactment of the legislation and regulations which followed, and the conduct of Canada, Manitoba and the Métis community, including their wishes, in respect of the implementation of the Act.
[429] Indeed, despite their argument that the archival and other documents are tantamount to having the authors appear as witnesses, the plaintiffs, as I have already stated, argued that the land documents filed with the Land Titles Office,
while doubtless of a high degree of accuracy, could be relied upon only for what
the documents said but could not be taken to establish that what the documents
said actually occurred.
[430] In this case it is important in my view to note that, while many of the
individuals entitled to benefit were doubtless unsophisticated people, many were
not, particularly the leaders of the Métis community and the Catholic clergy both
of whom were active in the governance and life of the people of the province 2007 MBQB 293 (CanLII)
both before and after 1870. Until 1878, the majority of the members of the
Legislature of Manitoba were either Métis, or French Canadians resident in
Manitoba and sympathetic to the cause of the Métis. They would doubtless have had knowledge of the intent of sections 31 and 32 of the Act and of the expectations of the community. As well, they would have had knowledge of the status of the administration of sections 31 and 32 of the Act and of the rights of those entitled, in the event of governmental breach.
[431] Such was apparent when the Manitoba Legislature, in 1890, passed The
Public Schools Act and effectively repealed the provisions of section 22 of the
Act which provided for funding to denominational schools. That legislation was challenged immediately.
[432] Barrett v. The City of Winnipeg (1891), 7 M. R. 273, and Logan v.
The City of Winnipeg (1891), 8 M. R. 3, were each actions commenced to
quash by-laws of the municipal corporation of the City of Winnipeg for the
levying of rates for municipal and school purposes in the City of Winnipeg. The basis of the argument was that the by-laws were dependent upon the passage of
The Public Schools Act, 1890 which, it was alleged, was ultra vires the
Manitoba Legislature in light of section 22 of the Act. The Public Schools Act was passed effective May 1, 1890. Barrett’s application was argued October 27,
1890, before Killam J. of the Manitoba Court of Queen’s Bench. An affidavit from
Taché was filed in support. Killam J.’s decision was appealed and was argued 2007 MBQB 293 (CanLII) before the Manitoba Court of Queen’s Bench en banc on December 13, 1890, and decided February 2, 1891. An appeal was then heard by the Supreme Court of Canada, whose judgment was delivered October 28, 1891, and both Barrett,
supra and Logan, supra were argued on appeal before the Privy Council in July
1892. The Privy Council decision is reported at [1892] A.C. 445.
[433] In light of the decisions in Barrett, supra and Logan, supra, the community took steps under subsection 22(2) of the Act and petitioned the
Governor General in Council for relief. The Governor General in Council referred a special case to the Supreme Court of Canada, which is reported at (1893), 22
Can. S.C.R. 577. Ultimately, that case was appealed to the Privy Council wherein it was argued in December 1894 and the opinion of the Privy Council was given
January 29, 1895 — Brophy v. Attorney-General of Manitoba, [1895] A.C.
202.
[434] In the report of the special case referred by the Governor General in
Council to the Supreme Court of Canada, the petition of Taché to the Governor
General in Council was published. It and other documents also published in the
report detailed developments in the province prior to and immediately following
the effective date of The Public Schools Act. Paragraph 5 of Taché’s petition,
found at page 597 of the report, reads as follows:
Fifth, that later on, working under the above-mentioned disadvantage and wishing for a remedy against laws which affected their rights and privileges, in the matter of education, 4,267 members of the Roman Catholic church in the Province of Manitoba, on behalf of themselves and their co-religionists, appealed to the Governor General in Council from the
said Acts of the Legislature of the Province of Manitoba,… 2007 MBQB 293 (CanLII)
[435] I note in the 1870 census of the province that the population was recorded and categorized in part by language and religion. One large group was the English half-breeds. Another larger group was the French Métis. The English half-breeds were largely Protestant and the French Métis, largely Catholic. Taché and Ritchot were both very active and filled very much a leadership role in the community, particularly the French Catholic/Métis community. I make this comment only because it was Taché who reported that 4,267 members of the
Roman Catholic church in Manitoba had signed the petition to the Governor
General in Council in respect of the alleged breach of their educational rights under section 22 of the Act by reason of the passage of The Public Schools
Act, 1890 by the Province of Manitoba. And in my view, it is safe to infer that many of the 4,267 signatories would have been Métis. It is clear that those members of the community including their leadership certainly were alive to the rights which they asserted were given to them under the Act and of the
remedies they had in the event of an occurrence which they considered to be a
breach.
[436] As well, in 1890, the Manitoba Legislature passed the Official Language
Act which provided that notwithstanding any other statute or law (including section 23 of the Act), the English language only shall be used in the Legislature or courts of Manitoba. That Act was also challenged before the Manitoba courts soon after it was enacted. It was ruled ultra vires in 1892 by Judge Prud’homme 2007 MBQB 293 (CanLII) of the County Court of St. Boniface in the unreported decision of Pellant v.
Hebert and it was again challenged in Manitoba courts and ruled
unconstitutional in 1909 in the unreported decision of the County Court of
St. Boniface in Bertrand v. Dussault.
[437] While it is true that these latter events occurred in 1890, whereas the alleged breaches with respect to sections 31 and 32 of the Act occurred largely in the 1870s, still many in the community in 1890, including those who were leaders, were the same people as those present in 1870 and following. But, no court proceedings were commenced in respect of sections 31 and 32 of the Act
until the present action, on April 15, 1981.
[438] Limitation of actions statutes were known to the law in 1870 and
thereafter. The laws of England applicable to Manitoba in 1870 included such
legislation.
[439] Manitoba itself passed its first limitation of actions legislation in 1931,
namely, The Limitation of Actions Act, S.M. 1931, Cap. 30. The Limitation
of Actions Act was reenacted in 1940 (S.M. 1940 (1st), Cap. 29). Excepting for the moment the issue of constitutional validity or challenge, both of those Acts contained similar provisions which would have been applicable to the plaintiffs’ action. Those Acts necessitated that actions for any equitable ground of relief had to be commenced within six years from discovery of the cause of action. 2007 MBQB 293 (CanLII)
They also provided after listing various grounds for action that any other action not specifically provided for in the statute had to be commenced within six years after the cause of action arose. Both Acts also contained provision to the effect that if a person had a cause of action which arose before or after the coming into force of the Act, such action would not be barred until the expiry of six months after the Act came into force.
[440] The Limitation of Actions Act in force in Manitoba at the time this action was commenced contained the same provisions material to this litigation
as did the Acts of 1931 and 1940 to which I earlier referred.
[441] In this action, the plaintiffs seek declaratory relief which is a claim for
equitable relief. Excepting the issue of constitutional validity and challenge,
there is, in my view, no question that the plaintiffs’ action is outside the
limitation period statutorily mandated by The Limitation of Actions Act.
[442] In line with Twaddle J.A.’s comments in Dumont, supra to which I
earlier referred, Canada argued that the nature of the constitutional rights in
question should bear materially on the issue whether limitations statutes are
applicable. It asserted that sections 31 and 32 were unique types of
constitutional provisions in that they required the government to deliver an asset
to a citizen on a onetime basis only and that once done the constitutional
obligation was spent. The benefits conferred by section 31 were conferred only 2007 MBQB 293 (CanLII)
on persons then alive and in fact resident in the Province of Manitoba on July 15,
1870, and by section 32, on those who were settlers in the Province and held
land at July 15, 1870. They were not rights, like language, denominational
schools or governmental institutions, which carry an ongoing and continuous
obligation for future generations.
[443] This action is not one being brought by heirs of those entitled to the
sections 31 and 32 benefits asserting that by reason of constitutionally invalid
acts or omissions, their ancestors did not receive the benefits to which they were
entitled. The evidence in this action from those individual plaintiffs whose
ancestors were entitled to section 31 and section 32 benefits is that they cannot
say that those ancestors did not get that to which they were entitled.
[444] This is not a case where any of the plaintiffs is seeking redress for individual loss or the enforcement of individual rights. Rather, the plaintiffs’ claim is one brought for collective relief arising from the failure to grant an alleged collective benefit under sections 31 and 32. And, assert the plaintiffs, it
is solely for certain declaratory relief which, if granted, “would be greatly to the advantage of the Métis in seeking to achieve a land claims agreement pursuant to subsection 35(3) of the Constitution Act, 1982”.
[445] I am satisfied on the evidence in this case that the residents at the time, or their leaders, would have known of their rights under section 31 and section
32 of the Act, and would have known that which was actually transpiring in respect of the administration and implementation of those sections, including the 2007 MBQB 293 (CanLII) federal and provincial legislation and enactments.
[446] As they had demonstrated their willingness to litigate in respect of their rights, one could infer from their conduct respecting sections 31 and 32 that they
were content at least ultimately with the administration and implementation of
the Act. While I am not prepared to do so, I do infer that they chose not to
challenge or litigate in respect of section 31 and section 32 knowing of the
sections, of what those sections were to provide them, and of their rights to
litigate.
[447] In the circumstances as exist in this case, I conclude that The Limitation
of Actions Act applies and on that basis I would dismiss the plaintiffs’ action.
[448] If I am incorrect in that conclusion, it is my view that the only aspect of
the plaintiffs’ action that would not be statute barred is their request for a declaration pertaining to the constitutional validity of the enactments listed in paragraphs 49, 50, 51 and 52 of their statement of claim including the effect of
such legislation upon the plaintiffs’ rights as claimed; that is, a declaration as to whether those enactments were ultra vires the Parliament of Canada and/or the
Legislature of Manitoba respectively.
THE DOCTRINE OF LACHES
[449] Both Canada and Manitoba rely on the equitable defence of laches and acquiescence. These defences are available, if the circumstances so exist, notwithstanding the existence of limitation periods pursuant to The Limitation 2007 MBQB 293 (CanLII) of Actions Act.
[450] In two cases, to which I have already referred, namely, M.(K.) v. M.(H.),
[1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 (QL), and Wewaykum Indian Band, the Supreme Court of Canada expounded upon and dealt with the defence of laches. In the former, La Forest J., at pp. 76-77, wrote:
The leading authority on laches would appear to be Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, in which the doctrine is explained as follows, at pp. 239-40:
… the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. 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.
This explanation was approved by Lord Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218 (H.L.), where, after quoting the above passage, he comments, at pp. 1279-80:
I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, 2007 MBQB 293 (CanLII) and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.
[451] At pp. 77-78, La Forest J. wrote:
The rule developed in Lindsay is certainly amorphous, perhaps admirably so. However, some structure can be derived from the cases. A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-65, where the authors distill the doctrine in this manner, at p. 755:
It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant’s conduct or (b) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb. …
Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. 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, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.
[452] And, at pp. 78-79, La Forest J. wrote:
Acquiescence is a fluid term, susceptible to various meanings depending upon the context in which it is used. Meagher, Gummow and
Lehane, supra, at pp. 765-66, identify three different senses, the first being a synonym for estoppel, wherein the plaintiff stands by and watches the deprivation of her rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches — after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived. … The final usage is a confusing one, as it is sometimes associated with the second branch of the laches rule in the context of an alteration of the defendant’s position in reliance on the plaintiff’s inaction.
As the primary and secondary definitions of acquiescence suggest, 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 2007 MBQB 293 (CanLII) 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.
[453] And in Wewaykum Indian Band, the court, at p. 302, para. 111, described the two branches of the doctrine of laches and acquiescence as (1) where “the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver”, and (2) such conduct “results in circumstances that make the prosecution of the action unreasonable”.
[454] For the reasons already expressed in regard to limitations of actions, I have no hesitation in finding that those entitled to benefits under section 31 and section 32 of the Act were at the material time aware of their rights thereunder and of their right to sue if they so wished. As well, I conclude that there was grossly unreasonable delay in the commencement of action in respect of those rights and the breaches thereof as now claimed.
[455] The question remains, however, whether the delay of the plaintiffs constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable.
[456] Both Canada and Manitoba assert that both branches of the doctrine of laches and acquiescence apply to this case. As to the former, there was no evidence introduced to explain the delay. The only explanations offered came from counsel and were essentially as follows: 2007 MBQB 293 (CanLII)
(1) There was animosity in the community towards the Métis which
might have deterred their willingness to do anything.
(2) Had the plaintiffs sought legal advice at the time, they would
probably have been told that they had no case.
(3) There was objection expressed from time to time by community
leaders and, in particular, by certain members of the Manitoba
Legislature as to the delays in implementation of the Act and as to
concerns about the vulnerability of the children who were to
receive land under section 31.
[457] None of these are a justifiable explanation at law for those entitled under section 31 and section 32, whether individually or collectively, to have sat on their rights as they did until 1981. Nor, in my view, does this delay in the exercise of their rights square with the evidence as to the conduct of individuals
and the larger community in respect of the steps taken when it was thought that
there had been a breach of section 22 and/or of section 23 of the Act. In my view in law, this amounts to acquiescence.
[458] In addition, the delay results in circumstances that make the prosecution of this action unreasonable. Both defendants assert a number of reasons why the prosecution of this case at this date is unreasonable. Some of those reasons are as follows: 2007 MBQB 293 (CanLII)
(1) There is incompleteness in the evidence. The plaintiffs assert that
this is not so. They say that we have a substantial documentary
record and that had the action been brought even in the 1880s or
1890s, the principals would not necessarily have been available.
Cartier died in 1873 and Macdonald, in 1891.
The documentary record includes Ritchot’s diary, the speeches of
Macdonald and Cartier in Parliament at the time the Bill was
introduced and debated, and other correspondence and dispatches
from leading players including during the period of administration
and implementation of the Act. While there are nonetheless gaps
in the documentary record, generally speaking, that which the
plaintiffs assert as regards the documentary record is correct.
Still, however, had the action been commenced in a timely way,
there would doubtless have been some of the major participants
available to testify, so that one would be better able to determine
what exactly may have been discussed between the delegates from
Red River and Macdonald and Cartier and whether there were
discussions in the nature of requests on the one side for certain
things and undertakings to attempt to deliver on the other but all
falling short of an agreement in a legal sense. We simply do not
know. 2007 MBQB 293 (CanLII)
As well, while it is clear from the facts that the selection, allotment
and ultimate grant of patents to the land in question, particularly
under section 31, was not done in a timely fashion, it is difficult for
one to put that into context given that I am forced to look at that
which occurred between 1870 and 1890 largely through 2007
glasses.
(2) When one is considering the constitutionality of legislation, a pith
and substance analysis is required in order to understand the
purpose and effect of the legislation. Understanding the social
context and the culture at the material time is critical to being able
to properly undertake this task. Here, there are doubtless different
societal attitudes and values than was the case over 125 years ago,
including changes in the common law.
(3) The legislation and regulations under attack were passed between
1871 and 1890 re Canada and between 1877 and 1885 re
Manitoba. The outcome of a successful challenge to legislation is
that the offending legislation is declared unconstitutional and of no
force and effect. The outcome of a successful challenge under the
doctrine of paramountcy is that the offending legislation is declared
inoperable. 2007 MBQB 293 (CanLII)
Such challenges were available to the forebears of the plaintiffs at
the time.
Had there been a successful attack on either basis at the time, the
remedy would have been much more easily determined and
applied. Often where legislation is struck down as unconstitutional,
it is replaced by other legislation which passes constitutional
muster. Both Canada and Manitoba were deprived of that
opportunity. And, in the meantime, hundreds of transactions have
been conducted in accordance with those enactments.
(4) In the present action, the plaintiffs seek declaratory relief to assist
them in advancing a land claim in the hope that they will be able to
successfully negotiate a land claim agreement. At the material
time, the available land was owned by Canada. In 1930, Canada
transferred control over ungranted lands to Manitoba and thus lost,
to a significant extent at least, an asset which it could have used to
settle the claim if a timely and successful attack had been
advanced. As the ungranted lands in the province are now owned
by Manitoba, it, too, suffers similar prejudice in that had the claim
been made successfully in a timely fashion, the remedy would likely
have been either to not replace legislation struck down or to
replace it with constitutionally valid legislation. Now, however, a 2007 MBQB 293 (CanLII)
settlement will presumably result in payment of monies or land.
[459] Declaratory relief is equitable relief. That is what the plaintiffs seek in this
case. As a general rule, one who seeks equity must do so promptly. That
certainly cannot be said to be the case here.
[460] For that reason and the reasons given as to why in my view the
prosecution of this case at this date is unreasonable, I conclude that the doctrine of laches and acquiescence is here applicable and amounts to a successful defence to the plaintiffs’ claim.
WAS THERE A TREATY OR AN AGREEMENT?
[461] The plaintiffs assert that the result of what they argue were negotiations
between the Red River delegates and Macdonald and Cartier was a treaty or agreement. Canada argues that what occurred were discussions, not
negotiations, and both Canada and Manitoba say that there was no treaty or
agreement, but simply an Act of Parliament.
[462] In the course of the trial, there were frequent exchanges between counsel
for the plaintiffs and counsel for Canada as to whether there had been
negotiations between the Red River delegates and Macdonald and Cartier, or
simply discussions.
[463] The historical documents record the use of various descriptors. For
example, Macdonald, in his letter of instructions to Smith dated January 3, 1870,
and Smith, in his comments to the Convention of 40 as reported by The New 2007 MBQB 293 (CanLII)
Nation on February 5, 1870, used the words “representing”, “discussions” and
“confer”. On the other hand, the word “negotiations” was frequently used by
those involved directly or on the periphery of the meetings between the Red
River delegates and Macdonald and Cartier in late April and May 1870.
[464] In the context of this case, it is my view that nothing turns on the point.
For the reasons which follow, I conclude that the product of the discussions or negotiations, whichever descriptor one prefers, was neither a treaty nor an agreement. Moreover, it certainly was not a treaty or an agreement with aboriginals. Rather, it was an Act of Parliament recognized as a constitutional document.
[465] Indeed, that is the conclusion of the Manitoba Court of Appeal wherein
Scott C.J.M., for a unanimous court, in R. v. Blais (2001), 198 D.L.R. (4th) 220,
2001 MBCA 55, wrote, at p. 225:
[8] … Though not a treaty since it is simply an Act of the Parliament of Canada, the Manitoba Act, 1870, S.C. 1870, c. 3, is recognized as a constitutional document.
[466] That dictum aside, the evidence overwhelmingly supports the conclusion
that here there was no treaty or agreement negotiated.
[467] The Red River delegates, Ritchot, Black and Scott, were chosen and
appointed by the Convention of 40 which at the material time was composed of
the leaders of the Settlement. The Convention of 40 became the Provisional 2007 MBQB 293 (CanLII)
Government, calling itself the Legislative Assembly of Assiniboia. Both the
Convention of 40 and the Provisional Government operated in a manner akin to a
Legislature or Parliament and represented all of the residents of Red River, not just the Métis, notwithstanding that the Métis comprised an overwhelming
majority of residents in the Settlement.
[468] Ritchot and Black certainly were intelligent, educated people. Neither they nor Scott were Métis, nor did they represent the Métis per se, but rather all residents of the Settlement.
[469] I am satisfied that those who elected the delegates and the delegates themselves were familiar with the process that ultimately would have to be followed to bring about the union of Rupert’s Land and the North-western
Territory with Canada. To their knowledge, this was not something that could be done by Macdonald and/or Cartier, or by the Cabinet, none of which could bind
Parliament, but only by Parliament and then subject to the provisions of section
146 of the Constitution Act, 1867, i.e. “on such Terms and Conditions in each
Case as are in the Addresses expressed and as the Queen thinks fit to approve,…”
[470] Parliament’s role had been made clear to the Convention of 40, the principals of the delegates, by Smith when he appeared before the Convention on February 7, 1870. The New Nation reported that the Convention, particularly
Riel, aggressively pressed Smith, as a representative sent from Canada, to 2007 MBQB 293 (CanLII) confirm which of the clauses in their list of rights Canada would accept. Smith is reported as saying:182
I have tried to explain to the Convention that I believe my powers to be sufficient to admit of my guaranteeing so far as anything can be guaranteed which is not yet passed by Parliament certain articles of this List.
[471] And, the following exchange is reported:183
Mr. Smith — I will have much pleasure in pointing out so much of the List as I can guarantee.
Mr. Riel — So you can guarantee us some articles in the sense of the word “guarantee”.
Mr. Smith — Yes, but perhaps you would be good enough to explain your idea of the word “guarantee”.
Mr. Riel — A pledge that the Canadian Government will be ready to sanction by act of Parliament what you say will be granted.
Mr. Smith — The Government will certainly bring the matter before Parliament, but it is the Parliament which must finally decide.
182 Exhibit 1-0386, page 71 183 Exhibit 1-0386, page 72
[472] And later that same day, Smith again is reported184 as using language which makes clear that the Government will ask Parliament to consider a Bill but that ultimately, the transformation from Bill to Act is up to Parliament.
[473] If there were any doubt about this going into the negotiations, which there should not have been, it certainly would have become clear to the delegates from the debates in Parliament, including the speeches of Macdonald and Cartier, and the comments of Macdonald and Cartier to the delegates as 2007 MBQB 293 (CanLII) recorded in Ritchot’s diary.
[474] As well, the evidence is clear that neither Macdonald, Cartier, the
Parliament of Canada, nor the Imperial Government, viewed the process as one of the negotiation of a treaty or an agreement.
[475] The only person who described the achievement of an agreement was
Ritchot. But the language of his diary, his communications and his conduct in light of what was occurring at the material time make clear, in my view, that to his knowledge there was no agreement. And even he did not speak of the conclusion of a treaty.
[476] Neither Macdonald nor Cartier referred to the negotiation of any treaty or agreement in the course of the debates in Parliament. Both in fact denied that any agreement had been reached. Both also indicated that the Bill was not the
184 Exhibit 1-0386, pages 73 to 77
result of negotiations or discussions with only the Red River delegates, but that
there had been discussions with others.
[477] Moreover, Macdonald told Parliament on May 2185 that, “… the Bill, of
course, was open to amendment”, and Cartier on the same date,186 when asked,
“if the Constitution was to be submitted to the people before being passed”,
responded, “No”. 2007 MBQB 293 (CanLII) [478] On May 4, Macdonald told Parliament187 that the clauses in the Bill “must be introduced by resolution, and would not be considered as portions of the Bill until adopted in Committee.”
[479] Later, on May 4, as recorded in the Hansard Debates (page 1366),
Macdonald stated, “… with regard to other portions of the Bill, the course to be
adopted will depend a great deal on the way in which the Bill passed in
Parliament.”
[480] And on May 5, after some further debate on the Bill, and the expression
by an Opposition member that he “hoped the Government would be willing to
accept amendments in Committee”, Macdonald said, “full opportunity would be allowed for the discussion in Committee” whereupon the Bill was then read a
185 Exhibit 1-0467, page 1322 186 Exhibit 1-0467, page 1311 187 Exhibit 1-0467, page 1358
second time and was referred to the Committee of the Whole for discussion the following day.188
[481] As well, the statements of Macdonald and Cartier to the delegates, as
recorded in Ritchot’s diary, pertaining to the need to leave the Bill as it was if
they had any hope of its passage, further confirm that the outcome was not
within the power of Macdonald and Cartier but of Parliament in the passage of an Act. 2007 MBQB 293 (CanLII)
[482] Ultimately, after further debate, much of which was in strong opposition, some amendment of the Bill, and many failed opposition attempts to amend, the
Bill was passed and received Royal Assent on May 12, 1870.
[483] All of the foregoing is evidence not of the negotiation of a treaty or agreement, nor of any belief or intent on the part of Macdonald or Cartier that they were doing so. Rather, it is evidence of a Bill en route through Parliament to passage.
[484] As for the Imperial Government, the language of Murdoch, Granville’s delegate to the negotiations, provides insight into the unlikelihood of its
considering any suggestion of a treaty, let alone an agreement, or the need for
approval by the Provisional Government or people at Red River. An extract from
188 Exhibit 1-0467, page 1389
his letter dated April 28, 1870 to Granville’s deputy, Sir F. Rogers, is as follows:189
By the present mail the Governor General will, I believe, transmit to Earl Granville a copy of the terms proposed by the Provisional Government of the “Red River Territory” as the conditions of their annexation to Canada. In my letter of 21st instant, I referred to these terms as comprising conditions that were inadmissable [sic]. At that time I was but imperfectly acquainted with them, having only heard them read out. A subsequent examination of them has however confirmed the opinion I then expressed. Without entering on the points that might admit of discussion it is sufficient to notice those that are clearly inadmissable st th
[sic]. These are principally the 1 and the 11 which would place the 2007 MBQB 293 (CanLII) whole land in the territory at the disposal of the present inhabitants thus enabling them to prevent the construction of a Pacific Railway and to impede the ingress of immigrants should they desire — as is not unlikely — to do so. The 10th and 11th conditions are also inconsistent with the arrangement entered into between Her Majesty and the Hudson’s Bay Company and sanctioned by Parliament. The 14th condition would secure an indemnity to Riel and his abettors for the execution of Scott and to all others for the plunder of the Hudson’s Bay Company stores and for other damages committed during the disturbances, concessions which this Government would not venture, even if it had the power to grant — while the condition which, though not contained in the terms, was conveyed to Judge Black and the other delegates in writing, that whatever was agreed to here must be subject to confirmation by “the Provisional Government” would have involved a recognition of the authority of Riel and his associates and would have enabled him to postpone indefinitely the transfer of the territory. Under the circumstances there was no choice but to reject these terms and to endeavour to arrange others that would not be open to objection.
[485] I take this as a strong indication of the Imperial Government’s likely unwillingness to consider or accept the delegates who were representatives of the Provisional Government as a negotiating party to a treaty or agreement and thereby countenance in any way recognition of the authority of Riel and his associates. And, I infer therefore that the Imperial Government did not view, nor would it have accepted, the process as one of the negotiation of a treaty or
189 Exhibit 1-0462
an agreement, let alone a treaty or an agreement in respect of certain
aboriginals, the Métis here, whose leader was seen to be Riel.
[486] Both the Constitution Act, 1867 and the Rupert’s Land Act, 1868
made clear that an address of both Houses of the Parliament of Canada would
be required and, furthermore, that Her Majesty would have to approve.
Following passage of the Act, the address was sent from both Houses of
Parliament to the Imperial Government and the Order in Council of the Imperial 2007 MBQB 293 (CanLII)
Government authorizing the union of the Province of Manitoba with Canada was
passed June 23, 1870. This, of course, preceded Ritchot’s appearance before
the Legislative Assembly of Assiniboia and its approval of the Act on June 24, and so too, is evidence of a belief by Canada and Britain in a unilateral process
which is the antithesis of a treaty or an agreement.
[487] In paras. 113 to 115 of these reasons, I have made reference to certain
occurrences on May 2, 1870, particularly an entry in Ritchot’s diary, a
handwritten note of Macdonald, and comments of Macdonald to Parliament on
the evening of May 2 when he introduced the Bill for first reading.
[488] The plaintiffs assert that there was an agreement reached between the
delegates and Cartier and Macdonald as evidenced by Ritchot’s diary record and
Macdonald’s handwritten note of May 2, 1870.
[489] I do not agree. In Ritchot’s diary entry,190 the record is as follows:
We continue to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say: The land will be chosen throughout the province by each lot and in several different lots and in various places if it is judged to be proper by the local Legislature which ought itself to distribute these parcels of land…
And the record continues to say that the distribution would be “always under the
supervision of the above mentioned local Legislature which could pass laws to
ensure continuance of these lands in the Metis families.” 2007 MBQB 293 (CanLII)
[490] And Macdonald’s handwritten note records:191
… There shall be placed at the disposal of the local Legislature one million and a half acres of land to be selected … by the said Legislature … to be distributed as soon as possible … under such legislative enactments which may be found advisable to secure the transmission and holding of the said lands amongst the half-breed families….
[491] But, there was never (on May 2 or thereafter) any agreement on the part
of Canada to provide a grant of 1,500,000 acres. Moreover, Canada never
agreed to place any of the lands in the new province under the jurisdiction,
authority or control of the local Legislature.
[492] This was made clear on the evening of May 2, 1870 when Macdonald, speaking in Parliament, described the grant as being 1,200,000 acres and went on to say that the assistance of the local Legislature would be invoked but always with the express sanction of the Governor General. Cartier, too, spoke that evening in Parliament of a grant of 1,200,000 acres.
190 Exhibit 1-0005, page 143 191 Exhibit 1-0468
[493] There can be no doubt that Ritchot and the other delegates were aware of Macdonald’s and Cartier’s speeches in Parliament on the night of May 2, 1870, and of the difference between their comments and the entry in Ritchot’s diary on those material points.
[494] In my view, consideration of the foregoing must lead to the conclusion either that there was no agreement as would have been apparent and accepted by Ritchot and the other delegates or that Macdonald (and Cartier) having made 2007 MBQB 293 (CanLII) an agreement on May 2 quickly resiled from it as evidence their comments in
Parliament that very night. Yet, there was not then nor has there been to this day any allegation or claim that Macdonald or Cartier had lied or acted sharply or in bad faith.
[495] As I stated in paras. 124 and 126 of these reasons, Ritchot sent a telegram to Bunn at Red River on May 4, 1870, while Macdonald, on the evening of May 4, 1870, introduced the Bill into Parliament in printed form for the first time. As well, he then moved second reading of it.
[496] It is unclear as to when exactly Ritchot’s telegram to Bunn was authored.
Was it written after first reading which occurred on May 2 when the contents of the Bill were generally outlined by Macdonald, or was it written after the Bill was introduced in printed form which occurred on the evening of May 4, 1870?
[497] If, after first reading on May 2, it was sent after Macdonald had made clear in his speech to Parliament that the land grant was to be 1,200,000 acres
and that Canada would involve the assistance or experience of the local
Legislature but subject to the sanction of the Governor General, not 1,500,000 acres and a mode of distribution as Ritchot’s May 2nd diary entry recorded had been agreed upon.
[498] If the telegram was sent after the Bill was introduced in written form on
May 4, it is difficult to reconcile the telegram with the May 5 entry in Ritchot’s diary as set forth in para. 125 of these reasons. 2007 MBQB 293 (CanLII)
[499] But, the telegram makes one thing clear, viz.: — that though the Bill had been introduced before Parliament, there remained unsettled points. That is, even as at May 4, the date of the telegram, an agreement had not been reached.
[500] I conclude that Ritchot’s diary entry on May 2 — wherein he wrote, “We continue to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say:…”, and then set forth the mode of distribution — was his recording of the agreement amongst the Red River delegates and not of an agreement between the Red River delegates on the one hand and Macdonald and Cartier on the other. The “We continue to claim 1,500,000 acres” could only refer to the Red River delegates, and the “we agreed on the mode of distribution as follows” forming part of the same sentence, in my view and in light of the circumstances, could only refer again to the Red River delegates.
[501] I conclude as well that Macdonald’s handwritten note of May 2, 1870
(para. 114) was simply his recording of that which Ritchot told Macdonald and
Cartier. It was not evidence of an agreement reached between the Red River
delegates on the one hand and Macdonald and Cartier on the other.
[502] To interpret it otherwise, as asserted by the plaintiffs, would, I reiterate,
require one to conclude that after making this agreement, Macdonald and Cartier
proceeded almost directly to Parliament, where each made speeches as to the
land grant which was substantially different in material respects to that which, if
you accept the plaintiffs’ position, they had only earlier that day agreed. 2007 MBQB 293 (CanLII)
[503] That Ritchot and the other delegates knew that there had been no such
agreement is, in my view, confirmed by Ritchot’s telegram on May 4 to Bunn
wherein he first reported that “we” (either him alone or the Red River delegates)
found the Bill satisfactory which clearly would not have been so had there been
an agreement reached on May 2 and then resiled from by Macdonald and Cartier
that very evening, and where secondly he went on to say in that telegram,
“other points to be settled”.
[504] As well, Ritchot records in his diary an entry of May 20192 that he had
written Black asking him for a letter on the subject of their negotiations with the
Canadian Ministers.
[505] By letter dated May 24, 1870,193 Black responded as follows:
With regard to your suggestion that I should give some written account of our negotiations with the Government, I may say that before receiving your letter, I had been considering the propriety of such a step, but
192 Exhibit 1-0005, page 155 193 Exhibit 1-0500
finally came to the conclusion that the best report which I could possibly give on the subject was the Bill itself, of which copies will, no doubt, be duly forwarded to Red River.
That is still my opinion; and I hope that on further reflection, you may be inclined to agree with me.
It is clear that Black understood that the operative and effective product of their negotiations with Macdonald and Cartier was not an agreement, but the Act.
[506] Moreover, the Red River delegates had no authority to enter into an 2007 MBQB 293 (CanLII) agreement or a treaty. This is clear from the letter of instructions dated
March 22, 1870, from Bunn to each of the three delegates wherein he wrote:
I have further to inform you that you are not empowered to conclude finally any arrangements with the Canadian Government.
[507] A treaty or agreement can only be concluded by people with capacity or authority to do so. Here, neither the delegates from Red River nor Macdonald or
Cartier had such capacity or authority. As well, a treaty or an agreement must have consensus as to terms, certainty of terms, and finality. Here, there was not. The plaintiffs assert that negotiations began on April 25, 1870, and that agreement was reached by May 2, 1870. The evidence, even relying upon
Ritchot’s diary, is clearly otherwise.
[508] Even if the plaintiffs were to argue that the Red River delegates, while having no authority to conclude anything, had authority to negotiate an agreement or a treaty subject to approval, the evidence is clear that that did not occur. When Ritchot reported to the Legislative Assembly of Assiniboia on June
24, 1870, he referred neither to the creation of a treaty nor to an agreement.
Ultimately, what was approved by the Assembly was the Act only. No treaty or
agreement was mentioned or approved.
[509] Cartier’s comment in his confidential report to Young on July 10, 1870,194 was correct when he said:
The Delegates relied upon these explanations and forthwith entered upon the negotiations which resulted in the passing of the Act relating to the Government of the Province of Manitoba. …
[510] There was no treaty. There was no agreement. There was an Act of the 2007 MBQB 293 (CanLII)
Parliament of Canada which is recognized as a constitutional document.
THE MANITOBA ACT AND THE MANNER OF ITS INTERPRETATION
[511] How then does one interpret the Act, a constitutional document, and in
particular sections 31 and 32 thereof which are at the heart of the plaintiffs’ case?
[512] There are considerable judicial dicta on the point. In Reference re
Manitoba Language Rights, [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36 (QL), the Supreme Court of Canada wrote, at p. 751:
This Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.
[513] But, the starting point is the language of the Act. As Iacobucci J. stated in
British Columbia (Attorney General) v. Canada (Attorney General); An
194 Exhibit 1-0516
Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41 at
88, [1994] S.C.J. No. 35 (QL):
Although constitutional terms must be capable of growth, constitutional interpretation must nonetheless begin with the language of the constitutional law or provision in question.
[514] In Prince Edward Island (Minister of Transportation and Public
Works) v. Canadian National Railway Co. (F.C.A.), [1991] 1 F.C. 129
(C.A.), [1990] F.C.J. No. 545 (QL), a decision of the Federal Court of Appeal, 2007 MBQB 293 (CanLII) Prince Edward Island sought to overturn an order of the National Transportation
Industry, the effect of which was to abandon the entire railway system serving
Prince Edward Island. The Prince Edward Island Terms of Union contained
provisions concerning the railway. Prince Edward Island argued that the Terms
of Union had constitutional status and that any law inconsistent with them was of no effect. It asserted that the Terms of Union required the maintenance of rail service to Prince Edward Island, including within the province and between the province and the mainland.
[515] Iacobucci C.J. (as he then was) described the appellant’s submission in
that case and the danger of it as follows:
¶ 10 I do not find it necessary to deal with each of the imaginative steps along the interpretive journey mapped out by the appellant which leads to his constitutional destination. I say this for the reason that the Terms of Union do not require Canada to operate the railway in Prince Edward Island or to maintain and operate a rail link between the railway within Prince Edward Island and the railway on the mainland. This is acknowledged by counsel for the appellant, who also recognizes that what the Terms of Union expressly state is that the railway on the Island shall be the property of Canada and Canada will pay the cost of a service that will place the Island in continuous communication with the Intercolonial Railway and the railway system of the Dominion.
¶ 11 In my view, what the Appellant is in effect arguing is that the Terms of Union are not clear on their face…. To resolve the doubt one must discern an understanding that must be implied from the circumstances at the time and the conduct of the parties since the Terms of Union were approved. I find this approach rather dangerous because it can easily lead to a rewriting of the Terms if not a slanting of the arrangement unjustifiably in favour of one side. But more fundamentally I think the Appellant’s approach is misguided because what is surely paramount is the meaning to be given to the words chosen by the parties in the Terms of Union.
¶ 12 In this respect, I do not agree that the words chosen were badly expressed or otherwise defective. In fact, I believe the relevant Terms of Union are clear in their intent and meaning and should be taken to 2007 MBQB 293 (CanLII) express the agreement that was intended by the parties. In other words, there is no need to rely on the rules of statutory construction, extrinsic evidence, or legislative history when the language under consideration is clear.
[516] In my view, Iacobucci C.J.’s comments apply here. Although the case in
Prince Edward Island, supra dealt with Terms of Union expressed in language chosen by the parties to the Terms of Union, whereas in this case we are dealing with an Act of Parliament and therefore unilateral language chosen by Parliament, if the language of the Act under consideration is clear, there is no need to rely on the rules of statutory construction, extrinsic evidence or legislative history.
[517] In my view, the language of the Supreme Court of Canada in R. v. Blais,
[2003] 2 S.C.R. 236, 2003 SCC 44, at pp. 245-46, is apposite here. The Court wrote:
¶ 16 Against this background, we turn to the issue before us: whether “Indians” in para. 13 of the NRTA include the Métis. The starting point in this endeavour is that a statute — and this includes statutes of constitutional force — must be interpreted in accordance with the meaning of its words, considered in context and with a view to the purpose they were intended to serve: see E.A. Driedger, Construction
of Statutes (2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, “Any interpretation that divorces legal expression from the context of its enactment may produce absurd results” (The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 290).
¶ 17 The NRTA is a constitutional document. It must therefore be read generously within these contextual and historical confines. A court interpreting a constitutionally guaranteed right must apply an interpretation that will fulfill the broad purpose of the guarantee and thus secure “for individuals the full benefit of the [constitutional] protection”…. “At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the [constitutional provision] was not enacted in a vacuum, and must therefore … be placed in its proper linguistic, philosophic and historical contexts”…. 2007 MBQB 293 (CanLII) ¶ 18 Applied to this case, this means that we must fulfill — but not “overshoot” — the purpose of para. 13 of the NRTA. We must approach the task of determining whether Métis are included in “Indians” under para. 13 by looking at the historical context, the ordinary meaning of the language used, and the philosophy or objectives lying behind it.
[518] As I have found, we are dealing here with an Act of Parliament, not a treaty or an agreement reached between the Red River delegates and Macdonald and Cartier. Accordingly, the starting point for interpretation of the Act, including sections 31 and 32 thereof, must be the ordinary meaning of the language of the statute viewed generously in an historical, contextual and purposive manner. The exercise is to determine what Parliament intended to accomplish in passing the Act, including any of its sections, so as to fulfill, without overshooting it, the purpose of the guaranteed right and thereby ensure that the people so entitled enjoy its full benefit. Only in the event of uncertainty or ambiguity is there any need to look beyond the plain language of the Act.
INTERPRETATION OF THE ACT
[519] The plaintiffs assert that in interpreting the Act, the circumstances of this case necessitate that the court consider the integrity of the Crown, the
Nowegijick principle (Nowegijick v. The Queen, [1983] 1 S.C.R. 29, [1983]
S.C.J. No. 5 (QL)), the protection of minorities, and the use of Hansard. Let me
consider those assertions. 2007 MBQB 293 (CanLII) THE INTEGRITY OF THE CROWN
[520] In R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39 (QL), Cory J.
set forth four principles applicable to the interpretation of treaties and of statutes
which have an impact upon treaty or aboriginal rights. As to the integrity or
honour of the Crown, he wrote, at p. 794:
¶ 41 … Second, 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. It is always assumed that the Crown intends to fulfil its promises. No appearance of “sharp dealing” will be sanctioned.
[521] As I have found, we are not dealing with a treaty. However, Cory J.’s
comments apply to statutory provisions and so would apply to such provisions of
the Act as would have an impact upon the aboriginal rights of the Métis to the
extent such aboriginal rights existed or were impacted. In this case, the
aboriginal right, if any, in issue is that of aboriginal title. However, in this case,
there is no allegation against the Crown of sharp dealing or the appearance
thereof.
THE NOWEGIJICK PRINCIPLE
[522] Nowegijick, supra was a decision of the Supreme Court of Canada. The
issue was whether Nowegijick, a registered Indian, could claim by virtue of the
Indian Act an exemption from income tax for the 1975 taxation year. The
court found in favour of Nowegijick. Dickson J., for the court, wrote, at p. 36:
It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. 2007 MBQB 293 (CanLII)
[523] And in Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119,
[1997] S.C.J. No. 50 (QL), Major J. wrote, at p. 153:
¶ 76 In interpreting statutes relating to Indians, ambiguities and “doubtful expressions” should be resolved in favour of the Indians: Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. As La Forest J. stated in Mitchell, “in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them” (p. 143).
[524] While the foregoing is doubtless the law, one must view that law in
context. While I have concluded that here there was no agreement or treaty, it
is useful, in my view, to consider statements of the Supreme Court of Canada in
other cases pertaining to Indians and relating largely to the interpretation of
treaties, agreements incidental or supplemental to a treaty, or to statutes
including the Indian Act itself.
[525] R. v. Sioui, [1990] 1 S.C.R. 1025, [1990] S.C.J. No. 48 (QL) described the factors underlying the principle that the interpretation of a treaty must be given a just, broad and liberal construction. Lamer J. wrote, at p. 1036:
Finally, once a valid treaty is found to exist, that treaty must in turn be given a just, broad and liberal construction. This principle, for which there is ample precedent, was recently reaffirmed in Simon. The factors underlying this rule were eloquently stated in Jones v. Meehan, 175 U.S. 1 (1899), a judgment of the United States Supreme Court, and are I think just as relevant to questions involving the existence of a treaty and the capacity of the parties as they are to the interpretation of a
treaty (at pp. 10-11): 2007 MBQB 293 (CanLII)
In construing any treaty between the United States and an Indian tribe, it must always … be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of the words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.
[526] In Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at 142-43,
[1990] S.C.J. No. 63 (QL), La Forest J., after acknowledging the “canons of construction generic to the interpretation of statutes relating to Indians” as set out by Dickson J. in Nowegijick, wrote:
I note at the outset that I do not take issue with the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. In the case of treaties, this principle finds its justification in the fact that the Crown enjoyed a superior bargaining position when negotiating treaties with native peoples. From the perspective of the Indians, treaties were drawn
up in a foreign language, and incorporated references to legal concepts of a system of law with which Indians were unfamiliar. In the interpretation of these documents it is, therefore, only just that the courts attempt to construe various provisions as the Indians may be taken to have understood them.
But as I view the matter, somewhat different considerations must apply in the case of statutes relating to Indians. Whereas a treaty is the product of bargaining between two contracting parties, statutes relating to Indians are an expression of the will of Parliament. Given this fact, I do not find it particularly helpful to engage in speculation as to how Indians may be taken to understand a given provision. Rather, I think the approach must be to read the Act concerned with a view to elucidating what it was that Parliament wished to effect in enacting the particular section in question. This approach is not a jettisoning of the 2007 MBQB 293 (CanLII) liberal interpretative method. As already stated, it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. …
At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.
[527] As well, in my view, Eastmain Band v. Canada (Federal
Administrator) (C.A.), [1993] 1 F.C. 501, [1992] F.C.J. No. 1041 (QL), a decision of the Federal Court of Canada – Court of Appeal, is instructive. In
Eastmain, supra, one of the issues was what principles of interpretation should apply to the 1975 James Bay and Northern Quebec Agreement, a comprehensive land claim agreement between Quebec, Canada, Hydro-Quebec and the Cree and Inuit communities of Quebec. Décary J.A. wrote the following:
¶ 21 We must be careful, in construing a document … that we do not blindly follow the principles laid down by the Supreme Court in analyzing treaties entered into in an earlier era. The principle that ambiguities must be construed in favour of the Aboriginals rests, in the case of historic treaties, on the unique vulnerability of the Aboriginal parties, who
were not educated and were compelled to negotiate with parties who had a superior bargaining position, in languages and with legal concepts which were foreign to them and without adequate representation.
¶ 22 In this case, there was simply no such vulnerability. … The comments of Lamer J., who was not yet Chief Justice, in Sioui provide a good illustration of this evolution:
The Indian people are today much better versed in the art of negotiation with public authorities than they were when the United States Supreme Court handed down its decision in Jones….
. . . . . 2007 MBQB 293 (CanLII) ¶ 24 The Aboriginal parties contend that the principle of construing ambiguities favourably also applies when statutes relating to Indians are to be interpreted, and that the Agreement, by virtue of being adopted by the Parliament of Canada, is a statute relating to Indians.
¶ 25 This rule, which is set out in Nowegijick, supra, in which the issue was the interpretation of section 87 of the Indian Act … seems to me to have been substantially diluted by the Supreme Court in Mitchell,…
He then makes reference to the comments of La Forest J. in Mitchell, supra, to which I above referred.
[528] And, in R. v. Howard, [1994] 2 S.C.R. 299, [1994] S.C.J. No. 43 (QL), in reference to the interpretation of a treaty, Gonthier J., for the court, wrote, at pp. 306-7:
… The 1923 Treaty does not raise the same concerns as treaties signed in the more distant past or in more remote territories where one can legitimately question the understanding of the Indian parties.… The 1923 Treaty concerned lands in close proximity to the urbanized Ontario of the day. The Hiawatha signatories were businessmen, a civil servant and all were literate. In short, they were active participants of the economy and society of their province. The terms of the Treaty and specifically the basket clause are entirely clear and would have been understood by the seven signatories.
[529] The foregoing statements are from cases involving Indians. To the extent they apply to dealings with Métis, particularly when placed in historical context, the Métis surely cannot be viewed in a more favourable or beneficial position than would be Indians.
[530] In this case, dealing with a statute, what we must determine is the will of
Parliament and its purpose in enacting the legislation and any particular section thereof. While the negotiations here occurred 137 years ago, the Red River 2007 MBQB 293 (CanLII) delegates, or at least Ritchot and Black, were literate, educated individuals conversant with the language used, and in Black’s case, with the law.
[531] It appears that Ritchot was chosen because of his connection to the
French community, Black, because of his connection to the English community, and Alfred Scott, because of his connection to the Americans living in the
Settlement. They were neither aboriginals nor representatives of an aboriginal band or people per se. Rather, they were representatives of the Settlement and its residents.
[532] As well, while it is true that the majority of the residents of the Settlement were either English half-breeds or French Métis, the clear facts are as follows:
(1) By 1869, the Settlement had well developed legislative and judicial
institutions. Legislative authority was exercised by the Council of
Assiniboia, which from 1835 comprised community representatives,
many of whom were Métis. There was a legal system in the
Settlement which exercised both civil and criminal jurisdiction to
which the Métis were subject. There were magistrates who dealt
with minor matters. Métis persons in the community participated in
the legal system as jurors, magistrates and at one time, in the case
of Dr. John Bunn, Recorder (or Chief Judge) of the court.
(2) The Convention of 40 and the Provisional Government were made
up of leaders of the Settlement, many of whom were successful in 2007 MBQB 293 (CanLII)
the commerce and social intercourse of the community and had
been for some time. It was they who chose the delegates.
(3) Those community leaders had prepared three lists of rights, and a
fourth had been provided to Ritchot setting forth the terms upon
which the Settlement was prepared to enter Confederation. Many
of the provisions in these lists of rights found their way into the
Act.
(4) Ritchot’s diary and the report of his speech to the Legislative
Assembly of Assiniboia on June 24, 1870 record that in the course
of the negotiations, he and his co-delegates consulted friends and
even lawyers for advice.
[533] In short, the circumstances that underlie the legal principles as to the interpretation and application of treaties or agreements with, or statutes relating to, aboriginal people did not, on the evidence, exist here and any suggested
application of the Nowegijick principle to the interpretation of the Act must be
subject to that reality. In my view, the Nowegijick principle does not apply in
the circumstances of this case.
PROTECTION OF MINORITIES
[534] In my view, neither section 31 nor section 32 of the Act, considered on an historical, contextual or purposive basis, pertained to or was intended for the protection of minorities. 2007 MBQB 293 (CanLII)
[535] As I have already set forth in these reasons, assurances had been given to all of the residents of the Settlement in the period leading to the negotiations between the Red River delegates and Macdonald and Cartier that the residents would have their property rights secured to them.
[536] Section 32 followed upon those assurances. It was enacted for the purpose of quieting titles. It pertained to all residents of the Settlement who prior to 1870 owned, occupied or were in possession of land in the Settlement.
It was included in the Act for the purpose of ensuring that those who held property interests in the Settlement prior to 1870, whether pursuant to titles conferred by the HBC, or with the concurrence of the HBC, or otherwise, would be assured of their land in the new province in the face of anticipated immigration.
[537] While there can be no question that, by reason of the population mix in the Settlement, it was known that English half-breeds or French Métis would
benefit under the section, neither were minorities at the time. With the role
which, in the circumstances, the delegates would have expected to be fulfilled by the new provincial Legislature (a body which would likely be as it was for many years controlled by the Métis) I infer that the delegates and those they
represented anticipated that the provisions of section 32 would be implemented
with reasonable dispatch.
[538] The section provides for a one-time individual grant in favour of those 2007 MBQB 293 (CanLII)
who had been and at the time of the transfer were landholders within the
Settlement. There is no evidence to support any suggestion nor can any fair
reading of this section suggest that it was intended to create a continuing
obligation for future grants to future generations.
[539] As regards section 31, it is clear from the third and fourth lists of rights
that the delegates and their principals intended that the province would control
the public lands. And, as already stated, the English half-breeds and the French
Métis were then a substantial majority in the Settlement and would be in the
new province.
[540] There is no evidence that the Métis considered themselves to be a
minority in the Settlement at the time leading to passage of the Act and it would be counter-intuitive to think that they would.
[541] While it was expected that immigration could soon change that, and it did, it could not have been expected to change immediately. In fact, the Legislature
of the new province was controlled until probably 1876 or later by members who were Métis, or members sympathetic to them.
[542] It would have been clear to the delegates and to the leaders of the
Settlement that if the province controlled the undisposed public lands, as they were seeking, they would be able generally to do with it what they wished.
[543] After it became apparent that Canada would not agree to allow the 2007 MBQB 293 (CanLII) province to own the public lands but would itself retain ownership of it, the issue of a children’s grant first arose.
[544] In my view, the evidence establishes that this 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.
[545] The language of section 31 read as part of the scheme of the Act in the context of the overall circumstances at the time was clearly that of a one-time grant in favour of those children of the half-breed heads of families who were resident in the Settlement at the time of transfer.
[546] As with section 32, there is no evidence to support any suggestion nor can
any fair reading of this section suggest that it was intended to create a continuing obligation for future grants to future generations.
[547] Nor is it plausible to consider this section as intended to protect the
French Métis as a minority. The delegates were negotiating on behalf of all residents of the Settlement. And the children entitled to share in the grant under section 31 were not just the children of the French Métis, but the children of the 2007 MBQB 293 (CanLII)
English half-breeds as well.
[548] As well, the evidence does not support the existence of any purpose or
intent on the part of Parliament to create or establish by virtue of section 31 of
the Act, a Métis enclave or land base, or to ensure the flourishing of a Métis
community in Manitoba then, or for the future.
[549] Sections 31 and 32 clearly did not provide rights like denominational
school rights or language rights which carry an ongoing and continuing obligation for future generations. Said sections were not, in my view, intended by
Parliament as minority rights provisions.
[550] Moreover, even if it were otherwise and the principle of interpretation regarding protection of minorities applied, which I have found was not the case,
how would that assist in interpreting the two sections which clearly do not create
continuing obligations, but provide for one-time grants which in substance were fulfilled?
USE OF HANSARD
[551] Clearly, the Hansard reports of parliamentary debates are admissible to assist in interpreting the meaning of constitutional provisions. But, while
Hansard may be used to assist in the interpretation of the words of a constitutional document, it cannot be used to add words or to change the natural meaning of words.
[552] As well, the law is clear that in making use of Hansard to assist in 2007 MBQB 293 (CanLII) interpreting the meaning of a constitutional provision, the court must be mindful as to the weight which can be given to the Hansard Debates. This was made clear in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73
(QL), and Mahe v. Alberta, [1990] 1 S.C.R. 342, [1990] S.C.J. No. 19 (QL).
[553] In Re B.C. Motor Vehicle Act, supra, Lamer J., at pp. 508-9, wrote:
If speeches and declarations by prominent figures are inherently unreliable (per McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319) and “speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight” (per Dickson J. in the reference Re: Residential Tenancies Act 1979, supra, at p. 721), the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.
Moreover, the simple fact remains that the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants can in any way be determinative?
Were this Court to accord any significant weight to this testimony, it would in effect be assuming a fact which is nearly impossible of proof, i.e., the intention of the legislative bodies which adopted the Charter. In view of the indeterminate nature of the data, it would in my view be erroneous to give these materials anything but minimal weight.
[554] This caution was echoed by the Supreme Court of Canada in Mahe,
supra. That case was a minority language rights case in which section 23 of the
Charter was engaged.
[555] At p. 369 of the court’s unanimous decision, Dickson C.J. wrote: 2007 MBQB 293 (CanLII)
The second argument, which was advanced by the respondent, is that s. 23 should be interpreted in light of the legislative debates leading up to its introduction. This Court has stated that such debates may be admitted as evidence, but it has also consistently taken the view that they are of minimal relevance (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 506-7). In this case, the evidence from the legislative debates contributes little to the task of interpreting s. 23 and, accordingly, I place no weight upon it.
[556] The plaintiffs purport to place much weight on the language of Macdonald
and Cartier during the parliamentary debates respecting the introduction and
passage of the Act. While the law is that their speeches are admissible, the
court must remember that they do not reflect the will of Parliament or the will of
Cabinet. While they are helpful in providing historical context, consistent with
judicial dicta they should not be given much weight in interpreting the meaning of the Act or any of its sections.
THE MANITOBA ACT – SECTION 31
[557] It is essential to remember that the Act must be looked at from the
perspective of Parliament, not from the perspective of the Métis, the Convention of 40, the Provisional Government or the Red River delegates, or Macdonald and
Cartier. While we must look at the evidence which reflects that which was said
or done by those various parties so as to put matters into historical context and
give purpose to that which Parliament did, ultimately the exercise is to
determine, in the manner previously discussed herein, the intent of Parliament in
passing the Act, including section 31.
[558] In summary, the plaintiffs assert that Canada, through Macdonald and
Cartier, who were the senior members of the Federal Government at the time, 2007 MBQB 293 (CanLII)
negotiated a treaty or an agreement with the Red River delegates, or at the very
least made representations to them, for the purpose of effecting the entry of
Rupert’s Land into Canada as the Province of Manitoba. The plaintiffs assert that
in so doing, Canada was dealing with aboriginals, the Métis, who enjoyed
aboriginal title. They argue that while there was no surrender of the subject
land to the Crown as exists in the Indian cases, there was an extinguishment by
statute which was recognized by section 31 of the Act. They assert that in
providing for land grants to the children of the half-breeds, Canada intended to
recognize this extinguishment of aboriginal title and to ensure the continuance of a land base for the Métis in Manitoba.
[559] The plaintiffs also say that because the Métis were aboriginal and had enjoyed aboriginal title, which was extinguished by statute, the Crown was in a fiduciary relationship with the Métis children and owed them a fiduciary obligation in respect of the land grant. As well, the plaintiffs argue that the honour of the Crown was implicated in respect of Canada’s implementation or
administration of the land grants scheme. For several reasons, the plaintiffs assert that Canada was in breach of both its fiduciary obligation and what the plaintiffs assert was the independent obligation of honour of the Crown.
[560] Canada, on the other hand, concurred in by Manitoba, asserts that the
Act was simply an Act of nation building. Canada and Manitoba argue that the
Métis did not enjoy Indian or aboriginal title and that the land grant was simply a
recognition of the fact that the Métis had been early settlers in Rupert’s Land and 2007 MBQB 293 (CanLII)
in the Settlement and had made significant contributions to it. They assert that
the land grant was merely an attempt by Canada to give the Métis children a
head start which would permit them, if they wished, the opportunity of settling in
the new province. Canada says that there was no fiduciary relationship between
Canada and the Métis children entitled to the grant, that there was no fiduciary
obligation owed to them in respect of the land, and that the honour of the Crown
was not implicated.
[561] It is important, in my view, to understand the status of the Métis in the
Settlement as at July 15, 1870, the effective date of the Act. Did the Métis have
aboriginal title? Were the Métis Indians? Did a fiduciary relationship exist
between the Crown and the Métis? Was the honour of the Crown implicated in
Canada’s dealings with the Métis leading to passage of the Act?
ABORIGINAL TITLE
[562] In R. v. Van der Peet, [1996] 2 S.C.R. 507 at 540, [1996] S.C.J. No. 77
(QL), Lamer C.J., for the majority, wrote:
¶ 33 … Aboriginal title is the aspect of aboriginal rights related specifically to aboriginal claims to land; it is the way in which the common law recognizes aboriginal land rights. … Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying “the land as their forefathers had done for centuries”…. 2007 MBQB 293 (CanLII) [563] In recent years, the Supreme Court of Canada has expounded the law of aboriginal title. This has occurred through a number of cases but, in my view,
Guerin v. The Queen, [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45 (QL),
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, [1997] S.C.J. No.
108 (QL), and R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC
43, are sufficient to give one a clear understanding of aboriginal title and its essential ingredients or dimensions.
[564] In Guerin, supra, Dickson J., at p. 376, wrote:
In Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, this Court recognized aboriginal title as a legal right derived from the Indians’ historic occupation and possession of their tribal lands.
[565] Dickson J. distinguished cases involving aboriginal title from what had previously been looked upon as “political trust” decisions. He found the latter inapplicable to Guerin and wrote, at p. 379:
… 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 (the Royal Proclamation of 1763), by s. 18(1) of the Indian Act, or by any other executive order or legislative provision.
And he went on:
It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands. The Indian interest in the land is the same in both cases….
And, at p. 382, he wrote:
Indians have a legal right to occupy and possess certain lands, the 2007 MBQB 293 (CanLII) ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown’s original purpose in declaring the Indians’ interest to be inalienable otherwise than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealings with third parties. The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.
[566] In Delgamuukw, supra, Lamer C.J., for the majority, wrote, at p. 1080:
¶ 111 … Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. …
He then outlined the dimensions of aboriginal title as follows, at pp. 1081-83:
¶ 113 The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. One dimension is its inalienability. Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is [sic] inalienable to third parties….
¶ 114 Another dimension of aboriginal title is its source. … it is now clear that although aboriginal title was recognized by the Proclamation
[the Royal Proclamation of 1763], it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law…. Thus, in Guerin, supra, Dickson J. described aboriginal title, at p. 376, as a “legal right derived from the Indians’ historic occupation and possession of their tribal lands”. What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward….
¶ 115 A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an 2007 MBQB 293 (CanLII) aboriginal nation. Decisions with respect to that land are also made by that community.
Further, he wrote, at pp. 1090, 1097, and 1102-3:
¶ 129 It is for this reason also that lands held by virtue of aboriginal title may not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.
. . . . .
¶ 142 … the time for the identification of aboriginal title is the time at which the Crown asserted sovereignty over the land.
¶ 143 In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.
¶ 144 … [T]o establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title.
. . . . .
¶ 152 … Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a
continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty.
[underlining in original]
[567] Addressing the issue of exclusivity of occupation, he wrote, at p. 1104:
¶ 155 Finally, at sovereignty, occupation must have been exclusive. The requirement for exclusivity flows from the definition of aboriginal title itself, because I have defined aboriginal title in terms of the right to exclusive use and occupation of land. Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. … Were it possible to prove title without demonstrating exclusive occupation, the 2007 MBQB 293 (CanLII) result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it.
[568] But the issue of exclusive occupancy must be considered in the context of the realities of aboriginal society. Lamer C.J. wrote, at p. 1104:
¶ 156 … Exclusivity is a common law principle derived from the notion of fee simple ownership and should be imported into the concept of aboriginal title with caution. As such, the test required to establish exclusive occupation must take into account the context of the aboriginal society at the time of sovereignty. For example, it is important to note that exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands. Under those circumstances, exclusivity would be demonstrated by “the intention and capacity to retain exclusive control”….
He then discussed the possibility of joint title as follows, at pp. 1105-6:
¶ 158 … the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity. The meaning of shared exclusivity is well-known to the common law. Exclusive possession is the right to exclude others. Shared exclusive possession is the right to exclude others except those with whom possession is shared.
[569] In Marshall; Bernard, supra, the Supreme Court of Canada considered further the principles enunciated in Delgamuukw. In her reasons, McLachlin
C.J. wrote, at p. 241:
¶ 40 These principles were canvassed at length in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, which enunciated a test for aboriginal title based on exclusive occupation at the time of British sovereignty. Many of the details of how this principle applies to particular circumstances remain to be fully developed. In the cases now before us, issues arise as to the standard of occupation required to prove title, including the related issues of exclusivity of occupation, application of this requirement to nomadic peoples, and continuity.
[570] In a discussion of the range of aboriginal rights, McLachlin C.J. wrote, at pp. 245-46:
¶ 54 One of these rights is aboriginal title to land. It is established by 2007 MBQB 293 (CanLII) aboriginal practices that indicate possession similar to that associated with title at common law. In matching common law property rules to aboriginal practice, we must be sensitive to the context-specific nature of common law title, as well as the aboriginal perspective. The common law recognizes that possession sufficient to ground title is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which the land is commonly enjoyed… The common law also recognizes that a person with adequate possession for title may choose to use it intermittently or sporadically…. Finally, the common law recognizes that exclusivity does not preclude consensual arrangements that recognize shared title to the same parcel of land.
[571] McLachlin C.J. then went on to discuss one of the three specific requirements for title set out in Delgamuukw, namely, that claimants must prove “exclusive” pre-sovereignty “occupation” of the land by their forebears.
While Marshall; Bernard provides insight as to the appropriate application of the “exclusive pre-sovereignty occupation” dimension required to prove aboriginal title, it certainly does not suggest that the three criteria or dimensions enunciated by Delgamuukw are incorrect or inapplicable.
[572] Guerin, Delgamuukw and Marshall; Bernard established and/or confirmed that one of the critical criteria for the establishment of aboriginal title
is that the land in question was in exclusive occupation of the claimant before the assertion of British sovereignty.
[573] In my view, however, Powley, supra, has probably changed the time for identification of aboriginal title as regards Métis.
[574] I say “has probably changed” because Powley was a case which dealt with the issue of aboriginal hunting rights of Métis, not with the issue of 2007 MBQB 293 (CanLII) aboriginal title.
[575] In Powley, the Supreme Court reasoned that Métis being the product of an aboriginal person and a European, the time for identification of aboriginal rights as the time at which the Crown asserted sovereignty over the land would make it impossible or nearly so for the Métis to enjoy aboriginal rights.
[576] The Court in Powley wrote, at paras. 14, 16, 17 and 18:
¶ 14 For the reasons elaborated below, we uphold the basic elements of the Van der Peet test … and apply these to the respondents’ claim. However, we modify certain elements of the pre-contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis claims.
¶ 16 The emphasis on prior occupation as the primary justification for the special protection accorded aboriginal rights led the majority in Van der Peet to endorse a pre-contact test for identifying which customs, practices or traditions were integral to a particular aboriginal culture, and therefore entitled to constitutional protection. However, the majority recognized that the pre-contact test might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition post-date European contact. ….
¶ 17 …. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. ….
¶ 18 With this in mind, we proceed to the issue of the correct test to determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982. The appropriate test must then be applied to the findings of fact of the trial judge. We accept Van der Peet as the template for this discussion. However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their aboriginal rights.
2007 MBQB 293 (CanLII) [577] For the purposes of this case, therefore, I look at the time for identification of aboriginal title in the plaintiffs’ Métis ancestors, not as the time at which the Crown asserted sovereignty over the land in question, but as at the time of first imposition of British control over the land.
[578] But the other criteria or dimensions essential to a finding of aboriginal title remain unchanged.
[579] History of the exploration of the fur trade in the area which ultimately became Manitoba involved both France and Britain.
[580] In 1670, Britain made its extensive land grant to the HBC and from that date, in my view, Britain exercised control through the HBC in those areas where the grant pertained and beyond that after 1763. There was no argument before me as to the precise area covered by the 1670 grant. Thus, it is unclear to me the extent to which that grant covered the lands which in 1870 became
Manitoba. However, after 1763, Britain gained sovereignty over all of Canada,
which would have included the area not covered by the grant, if any, but which
ultimately became Manitoba.
[581] Indeed, in 1811, when the Red River Settlement originated, it did so as
the result of a large land grant from the HBC to Lord Selkirk which could not
have been done had Britain not enjoyed sovereignty over the land and exercised
control of it through the activities of the HBC. 2007 MBQB 293 (CanLII) [582] Powley makes very clear the need for precision in evidence from
aboriginals, in that case Métis, to establish in a court of law, proof of an
aboriginal right claimed.
[583] In this case, however, there is little evidence as to the status of the
ancestors of the plaintiffs at the commencement of British control in the area which ultimately became Manitoba.
[584] In one of his early reports as Lieutenant Governor of Manitoba, Adams
Archibald (“Archibald”), on December 27, 1870,195 in expressing his concern
specifically as to the meaning of the phrase “Indian title” in section 31 of the
Act, provided some history, without attribution to any source, as to the early
inhabitants of the area. He wrote:
It is difficult to understand exactly what several expressions in this clause mean.
The title recognized as Indian, is the title of the natives who have made any particular portion of the Country their home. Each tribe is divided into families, and each family considers as its own, in a certain sense of
195 Exhibit 1-0547
exclusiveness, though not in the absolute sense we attach to ownership, the particular parts of the Country, where the family lives, and hunts, and roams.
Now, as regards the Province of Manitoba, that was originally in the possession of some tribes of Crees, till shortly before the arrival of the English settlers, when they either abandoned their homes in search of a more Western Country or were driven out by the Saulteaux who pressed upon them from the east, and whose original home is the Country lying between this and Lake Superior. Some few Crees remained; some Indians, assuming to be Cree Chiefs, uniting with others assuming to be Saulteaux Chiefs, concurred in the deed to the Earl of Selkirk referred to in a previous dispatch [the treaty of 1817].
The Indian rights, whatever they may be, belong to families of these two 2007 MBQB 293 (CanLII) tribes. But many of the Half-breed inhabitants of Red River are not descended from any family or tribe of either Crees or Saulteaux.
The half-breed population of this Province is largely from beyond the Province. White men who have lived in the most remote parts of this Continent, and have formed connexions with Indian women of the interior, as they advance in years remove to Red River, and there is not probably a tribe of natives between this and the Rocky Mountains, or between this and the North Pole, or between this and the coast of Hudson’s Bay or Labrador, which is not to some extent represented in the Half-breeds of Red River.
[585] Aside from the specific issue of time of identification, another aspect of the first criterion for establishment of aboriginal title is the necessity for exclusive occupation, albeit that joint title could exist from shared exclusivity.
[586] In 1817, Lord Selkirk entered into a treaty whereby Indian title was extinguished in that land which became known as the Settlement Belt. And shortly after Manitoba entered Confederation, Treaty Nos. 1 and 2 were executed to extinguish Indian title to the land beyond the Settlement Belt.
[587] There is no evidence of any objection by the Métis on either occasion suggesting that they, not the Indians, held aboriginal title over that land.
[588] As well, there is no evidence to establish, let alone even suggest, that the
Métis held aboriginal title to the land jointly with the Indians, which on the evidence that was provided would have been highly unlikely, if not impossible.
[589] On the evidence, the plaintiffs have not proved the existence of the first of the three criteria necessary for the establishment of aboriginal title, even allowing for modification consistent with Powley. 2007 MBQB 293 (CanLII) [590] As well, it is clear on the evidence that the Métis did not meet the other two criteria required for aboriginal title as enunciated in Delgamuukw. They did not hold land communally but individually and they were not believers or practitioners of the principle of non-alienability of their land.
[591] The Métis did not occupy land communally as at 1870 or prior thereto.
While for the most part they lived together more or less in contiguity to one another in parishes which were laid out on the basis of language and religion, they did so as individuals and not in any communal sense.
[592] As well, many Métis in the territory owned land individually and bought from and sold land to other Métis and non-Métis. Some held title to land from the HBC which was land either within the land of the Taylor Survey or was land surveyed by themselves. Some occupied land as squatters within the Settlement
Belt or without, but on an individual basis.
[593] Simply put, based upon the evidence, the Métis did not come within any of the three criteria or dimensions enunciated in Delgamuukw, and as modified
by Powley, which are necessary for enjoyment of aboriginal title.
[594] Applying the law to the historical facts, I conclude that the Métis of the
Settlement, including their children to whom the section 31 grants were to be
made, did not hold at July 15, 1870, or at anytime prior, aboriginal title to the
lands which were to become Manitoba and serve as the source for the section 31 2007 MBQB 293 (CanLII)
grants.
WERE THE MÉTIS OF MANITOBA, INDIANS?
[595] The language in section 31 of the Act as to the extinguishment of the
Indian title to the lands in the Province and the appropriation of a portion of such
ungranted lands pertained to the children’s grant. Having found that the Métis
did not hold Indian, or aboriginal, title, I will address the issue whether they
were Indians.
[596] I note that in Blais, supra, the Supreme Court of Canada decided as had the Manitoba courts that the Manitoba Métis were not Indians.
[597] In Blais, the issue before the Supreme Court, as described by the court,
was “whether ‘Indians’ in para. 13 of the Natural Resources Transfer Act include the Métis”. The determination in point of time was as of 1930 when the Natural
Resources Transfer Act was enacted and in respect of that Act, not 1870 when the Act was passed nor in respect of the Act. Nevertheless, the comments of
the court are informative, and in my view, corroborative of my conclusions on the evidence before me in this case.
[598] Moreover, while the interpretative issue in Blais was different than exists here, as I have indicated, the reasoning of the Supreme Court was based upon essentially the same evidence before me in this case and in reference to the same argument as now advanced by the plaintiffs and to the same provision, section 31 of the Act. 2007 MBQB 293 (CanLII)
[599] The court wrote, at pp. 247-51:
¶ 20 The courts below found, and the record confirms, that the Manitoba Métis were not considered wards of the Crown. This was true both from the perspective of the Crown, and from the perspective of the Métis. Wright J. summarized his findings on this point as follows, at paras. 18-19:
The nature of the negotiations in the 1920's, as reflected in correspondence and other evidence introduced at the trial of the appellant, shows that protection was the fundamental concern of the federal authorities, being consistent with the Crown's obligations to those who automatically or voluntarily became subject to, or beneficiaries of, the Indian Act.
Nowhere is there any suggestion [that] the Metis, as a people, sought or were regarded as being in need of this kind of protection. On the contrary, the evidence demonstrates the Metis to be independent and proud of their identity separate and apart from the Indians.
¶ 21 The difference between Indians and Métis appears to have been widely recognized and understood by the mid-19th century. In 1870, Manitoba had a settled population of 12,228 inhabitants, almost 10,000 of whom were either English Métis or French Métis. Government actors and the Métis themselves viewed the Indians as a separate group with different historical entitlements; in fact, many if not most of the members of the Manitoba government at the time of its entry into Confederation were themselves Métis.
¶ 22 The Manitoba Act, 1870 used the term "half-breed" to refer to the Métis, and set aside land specifically for their use: Manitoba Act, 1870, S.C. 1870, c. 3 s. 31 (reprinted in R.S.C. 1985. App. II, No. 8). While s. 31 states that this land is being set aside "towards the extinguishment of the Indian Title to the lands in the Province", this was expressly recognized at the time as being an inaccurate description. Sir John A. Macdonald explained in 1885:
Whether they [the Métis] had any right to those lands or not was not so much the question as it was a question of policy to make an arrangement with the inhabitants of the Province . . . 1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, for the half- breeds did not allow themselves to be Indians. 2007 MBQB 293 (CanLII)
(House of Commons Debates, July 6, 1885, at p. 3113, cited in T.E. Flanagan, "The History of Metis Aboriginal Rights: Politics, Principle, and Policy" (1990), 5 C.J.L.S. 71, at p. 74)
¶ 23 Other evidence in the record corroborates this view. For example, at trial, the expert witness Dr. G. Ens attached to his report a book written by Lieutenant-Governor A. Morris entitled The Treaties of Canada with the Indians of Manitoba and the North-West Territories, published in 1880. The book includes an account of negotiations between the Governor and an Indian Chief who expresses the concern that his mixed- blood offspring might not benefit from the proposed treaty. The Governor explains, at p. 69: "I am sent here to treat with the Indians. In Red River, where I came from, and where there is a great body of Half- breeds, they must be either white or Indian. If Indians, they get treaty money; if the Half-breeds call themselves white, they get land." This statement supports the view that Indians and Métis were widely understood as distinct groups for the purpose of determining their entitlements vis-à-vis the colonial administration.
¶ 24 It could be argued that the ability of individual Métis to identify themselves with Indian bands and to claim treaty rights on this basis weighs against a view of the two groups as entirely distinct. However, the very fact that a Métis person could "choose" either an Indian or a white identity supports the view that a Métis person was not considered Indian in the absence of an individual act of voluntary association.
¶ 25 The Canadian government's response to an 1877 petition from a group of Métis further illustrates the perceived difference between the Indians and the Métis, and the exclusion of the Métis from the purview of Indian treaties. The Métis petitioners requested a grant of farming implements and seeds, and the relaxed enforcement of game laws to enable them to recover economically from the smallpox epidemic of 1870.
David Laird, the Lieutenant-Governor of the North-West Territories, responded to the petition. He concluded by declaring:
I can assure you that the Government feel[s] a kindly interest in your welfare, and it is because they desire to see you enjoying the full franchise and property rights of British subjects, and not laboring under the Indian state of pupilage, that they have deemed it for the advantage of half-breeds themselves that they should not be admitted to the Indian treaties.
(W.L. Morton, ed., Manitoba: The Birth of a Province (1984), vol. I, at p. 23)
Without commenting on the motivations underlying the government's policy or on its ultimate wisdom, we take note of the clear distinction 2007 MBQB 293 (CanLII) made between Indians and "half-breeds", and the fundamentally different perception of the government's relationship with and obligations towards these two groups. We also note that counsel for the intervener, the Métis National Council, told the Court of Appeal: "the Métis want to be 'Indian' under the NRTA, but for no other purpose" (para. 75).
. . . . .
¶ 28 The Red River Métis distinguished themselves from the Indians. For example, the successive Lists of Rights prepared by Métis leaders at the time of the creation of the Province of Manitoba excluded "the Indians" from voting. This provision could not plausibly have been intended to disenfranchise the Métis, who were the authors of the Lists and the majority of the population. The Third and Fourth Lists of Rights emphasized the importance of concluding treaties "between Canada and the different Indian tribes of the Province", with the "advice and cooperation of the Local Legislature" (appellant's record, at pp. 272 and 275). The Local Legislature was, at that time, a Métis-dominated body, underscoring the Métis' own view of themselves and the Indians as fundamentally distinct.
¶ 29 There might not have been absolute consistency in the use of the terms "Indian" and "half-breed", and there appears to have been some mobility between the two groups. However, as evidenced by the historical documents statement cited above, the prevailing trend was to identify two distinct groups and to differentiate between their respective entitlements. Dr. Ens indicated in his report: "By 1850 'Half-Breed' was the most frequently used term among English-speaking residents of the North West to refer to all persons of mixed ancestry. It was a term that clearly differentiated between Indian and Metis populations"….
[600] Placed in historic context, the evidence in this case is overwhelming that the Métis were not Indians. They did not consider themselves to be Indians.
They saw themselves, and wanted to be seen, as civilized and fully enfranchised citizens. So, too, did the entire Settlement see them that way. This is abundantly evident from, amongst other things, the role the Métis had played in the governance and commerce of the Settlement for many years prior to 1870, as well as from their role in the Convention of 24, the Convention of 40, the 2007 MBQB 293 (CanLII)
Provisional Government, and following July 15, 1870, in the Legislature of
Manitoba. It is also evident from the debates of the Convention of 40 and the contents of the four lists of rights.
[601] The evidence clearly establishes that the entire Settlement, including the
Métis, viewed the Indians as being inferior, being in need of care or guardianship and being incapable or unfit for enfranchisement and the enjoyment of the rights of full citizens.
[602] Between December 1, 1869 and March 24, 1870, when the Red River delegates left for Ottawa, four lists of rights had been prepared. The first was by the Convention of 24,196 the second by the Convention of 40,197 the third by the
Convention of 40 or the Provisional Government,198 and the fourth was a list, the origin of which is unknown but which was carried by Ritchot alone.199
196 Exhibit 1-0344 197 Exhibit 1-0394 198 Exhibit 1-0422 199 Exhibit 1-0431
[603] In the first list, clause 12 provided:
That treaties be concluded and ratified between the Dominion government and the several tribes of Indians in the territory to ensure peace on the frontier.
[604] The second list contained a similar provision and, as well, clause 18 which provided, in part:
That every man in this country (except uncivilized and unsettled Indians) who has attained the age of 21 years … shall have the right to vote….
[605] The third and fourth lists contained similar provisions, both as to the 2007 MBQB 293 (CanLII) making of treaties with the Indians and as to restriction of the Indians from voting. In fact, clause 9 on the fourth list of rights read, in part:
9. That in this province, with the exception of the Indians who are neither civilized, nor settled, every man … be entitled to vote….
[606] In The New Nation publication of the Debates of the Convention of 40, there is a record of a debate which took place on February 1, 1870, and which, in particular, related to clause 15 of a proposed list of rights which provided:200
15. That treaties be concluded between the Dominion and the several Indian tribes of the country.
[607] The following debate was reported:
Mr. Bunn suggest that the words, “as soon as possible” be added to the article.
Mr. Ross suggested the further addition of the words, “with the view of satisfying them with regard to their claim to the lands of the country.” Mr. Ross went on to show that this matter of treating with the Indians was held by the Imperial Government to be one of grave importance and as such they had pressed it strongly on the Canadian Government, Earl Granville says, “I am convinced your Government will not forget the care due to those who will soon become exposed to new dangers – who will be in the progress of civilisation deprived of lands which they have been accustomed to enjoy as their own home and shut up in resorts other that
200 Exhibit 1-0386, pages 40 and 41
those they have been accustomed to. These are things he says which did not escape my observation which dealing with the Canadian delegates and the Hudson Bay Company. I am convinced that the old inhabitants of the country will be treated with all the solicitude and respect doe to them in order to prove to them the friendly sentiments with which they are regarded by their new governors.”
Mr. Riel, in French, as interpreted by Mr. Ross, asked – Had the Indians the whole claim to the country? Here we ask the Canadian Government to settle with the Indians; and I would ask for the consideration of the Convention without pronouncing an opinion – whether we ought to allow the question to pass in that shape. Are Indians the only parties in the country who have to be settled with for land claims? If so, all right. But if there is some section for which the Half-breeds would have to be dealt with then the article as it stood was too general. I have heard of Half- 2007 MBQB 293 (CanLII) breeds having maintained a position of superiority and conquest against the incursions of Indians in some parts of the country. If so, this might possibly be considered to establish the rights of the half-breeds as against the Indians. But I merely suggest this for consideration. The article, I presume refers to a settlement with the Indians of the whole Territory; and let me ask, is not that too liberal?
Mr. Flett, in French, asked where these fights had taken place between the Half-breeds and Indians. Was it in British or American Territory?
Mr. Poitras (French) – For the most part, I presume in American Territory (hear, hear).
Mr. Flett – For my part, I am a Half-breed but far be it from me to press any land claims I might have as against the poor Indian of the country (hear, hear). Let the Indian claims be what they may, they will not detract from our just claims. We have taken the position and ask the rights of civilized men. As to the poor Indian, let him by all means have all he can get. He needs it and if our assistance still aid him in getting it, let us cheerfully give it (cheers).
Mr. Poitras – It is true that the fights alluded to took place on American Territory, but had they not taken place there, these Indian hostilities must have taken place on our soil. For my part, I have no wish to deprive the Indian of advantages (cheers).
Mr. Ross – As a Half-breed of this country, I am naturally very anxious to get all rights that properly belong to Half-breeds. I can easily understand that we can secure a certain kind of right by placing ourselves on the same footing as Indians. But in that case, we must decide on giving up our rights as civilized men. The fact is we must take one side or the other – we must either be Indians and claim the privileges of Indians – certain reserves of land and [illegible] compensation of blankets, powder
and tobacco (laughter) or else, we must take the position of civilized men and claim rights accordingly. We cannot expect to enjoy the rights and privileges of both the Indian and the white man. Considering the progress we have made and the position we occupy, we must claim the rights and privileges which civilized men in other countries claim.
Mr. Thibert – The rights put forward by Half-breeds need not necessarily be mixed up with those of Indians. It is quite possible that the two classes of rights can be separate and concurrent. My own idea is that reserves of land should be given the Half-breeds for their rights.
Mr. Riel (French) – The Half-breeds have certain rights which they claim by conquest. They are not to be confounded with Indian rights. Great Britain herself holds most of her possessions by right of conquest. In conclusion he moved that the article pass with the addition of the words, 2007 MBQB 293 (CanLII) “as soon as possible.”
Rev. H. Cochrane seconded the motion which carried.
[608] This sentiment expressed by Ross, Poitras, Flett and Riel himself, drew clear distinction between the rights and treatment of Indians as compared with the rights of the half-breeds as civilized men and the differentiation of the two.
[609] The evidence overall makes clear that the Métis did not live in the
Settlement in bands nor did they have one leader or a council of leaders.
Rather, they lived in parishes based upon linguistic and religious affiliation, as individuals. They participated in the governance of the Settlement. Some held positions in the British style system of courts. Some owned lots individually and in many cases surveyed their lots and registered them in Register B, the HBC register. As well, they participated in the economy of the Settlement both as employers and as employees.
[610] The Métis were recorded in the census of the Settlement as separate from
Indians. They clearly distinguished themselves from Indians as is evident both
from the list of rights to which I have referred, the debates concerning the list of
rights, and laws that were passed by the local Legislature after July 15, 1870,
which were highly restrictive of Indians.
[611] And, on June 24, 1870, when Ritchot reported to the Provisional
Government, following passage of the Act and his return from Ottawa, he
responded clearly that the Métis were not Indians. He was asked specifically “as
to whether half-breeds taking these reserves are to be held as minors, as under 2007 MBQB 293 (CanLII)
the Confederation Act” and he responded, “No.” This reference to “minors” is
not a reference to age but rather at the time was taken as meaning “Indians”
and subject to the disabilities imposed upon Indians.
[612] In his letter of January 3, 1870,201 Macdonald, in instructing Smith as to what he might tell the people of Red River concerning the rights which Canada would concede, wrote:
The Indian claims, including the claims of the Half-breeds who live with and as Indians, will be equitably settled.
That is, Macdonald clearly recognized the difference between the Métis and the
Indians included with whom were half-breeds who lived with and as Indians.
[613] Comments made by a number of members of Parliament in the Hansard
Debates relative to the Act made clear that they viewed the Métis as other than
Indians.
201 Exhibit 1-0372
[614] Indians were considered to be in a state of pupillage. Not so the Métis.
Indians were not enfranchised, were not able to own property individually and were not treated as citizens of the community. Not so the Métis.
[615] Relative to the standards of the day, the Métis were not and did not view themselves as a vulnerable people by reason of their aboriginality or otherwise.
Nor did Canada so view or treat them. 2007 MBQB 293 (CanLII) [616] In my view, the Supreme Court in Blais decided that the Métis were not
Indians under section 31 of the Act. In any event, that is my conclusion based upon what I consider to be overwhelming evidence in the case to that effect.
FIDUCIARY DUTY
[617] Having found that the Métis of Rupert’s Land did not hold aboriginal title and were not Indians, I turn to consider whether there was a fiduciary relationship between Canada and the Métis and a resulting fiduciary duty, with respect to the children’s land grant provided for in section 31 of the Act.
[618] The Métis are an aboriginal people under section 35 of the Constitution
Act, 1982. But, as Lamer C.J. wrote in Delgamuukw, at p. 1091:
¶ 133 … On a plain reading … s. 35(1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were “existing” in 1982.
[619] While there are many judicial authorities which have found a fiduciary relationship between the Crown and aboriginals and a fiduciary duty owing by the Crown to aboriginals in respect of many issues, including that of aboriginal
title, it does not necessarily follow that there was in this case a fiduciary relationship between the Métis and Canada or a fiduciary obligation or duty owed by Canada to the Métis in respect of the land which became the source of the section 31 grants.
[620] To my knowledge, all of the decided cases which deal with aboriginal title to land and the creation of a fiduciary duty or obligation owing from the Crown to aboriginals in that context have been cases involving Indians where either 2007 MBQB 293 (CanLII) aboriginal title was found to exist or its existence was not in dispute.
[621] In Van der Peet, supra, Lamer C.J., for the majority, wrote, at p. 558:
¶ 67 Although s. 35 includes the Métis within its definition of “aboriginal peoples of Canada”, and thus seems to link their claims to those of other aboriginal peoples under the general heading of “aboriginal rights”, the history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal peoples in Canada. As such, the manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined. At the time when this Court is presented with a Métis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Métis claim, be able to explore the question of the purposes underlying s. 35’s protection of the aboriginal rights of Métis people, and answer the question of the kinds of claims which fall within s. 35(1)’s scope when the claimants are Métis.
[622] That statement should not be forgotten. This case is very much one of first impression. It involves Métis, not Indians, who as I have found did not at the material time (July 15, 1870 or prior thereto) enjoy aboriginal title to the land in question.
[623] To decide whether in the circumstances of this case a fiduciary relationship existed between Canada and the Métis or whether a fiduciary duty was owed by Canada to the Métis requires some analysis of the underlying legal principles and their application to the historical facts as they existed at the time.
[624] In Guerin, Dickson J. wrote, at p. 376:
The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself 2007 MBQB 293 (CanLII) give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.
An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act. The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians.
[625] In Kruger v. The Queen, [1986] 1 F.C. 3 (C.A.), [1985] F.C.J. No. 167
(QL), Urie J., with whom Stone J. concurred, made reference at pp. 46 and 47 to the judgment of Dickson J. in Guerin. At pp. 47 and 48, he wrote:
It should be noted that in the above passages from his judgment, Dickson J. says that “The surrender requirement … [is] the source of a distinct fiduciary obligation”, that the interest of the Indians “gives rise upon surrender to a distinctive fiduciary obligation” and that “the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered (emphasis added)”. At p. 383 he stated “In the present appeal its [the fiduciary obligation] relevance is based on the requirement of a “surrender” before Indian land can be alienated” (emphasis added). Lastly, at page 385, Mr. Justice Dickson said, “When, as here, an Indian Band surrenders its interest to the Crown, a fiduciary obligation takes hold to regulate the manner in which the Crown exercises its discretion in dealing with the land on the Indians’ behalf” (emphasis added).
[626] In R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1108, [1990] S.C.J. No. 49
(QL), the court wrote:
In Guerin, supra, … [t]his Court found that the Crown owed a fiduciary obligation to the Indians with respect to the lands. The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation.
[627] And in Blueberry River Indian Band v. Canada (Department of
Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 at 372 and 2007 MBQB 293 (CanLII) 373, [1995] S.C.J. No. 99 (QL), McLachlin J. (as she then was) wrote:
¶ 38 … A person cedes (or more often finds himself in the situation where someone else has ceded for him) his power over a matter to another person. The person who has ceded power trusts the person to whom power is ceded to exercise the power with loyalty and care. This is the notion at the heart of the fiduciary obligation.
. . . . .
¶ 40 I conclude that the evidence does not support the existence of a fiduciary duty on the Crown prior to the surrender of the reserve by the Band.
[underlining in original]
[628] It is clear, in my view, that a fiduciary obligation and/or a fiduciary duty does not exist at large between Canada and aboriginals, nor in respect of all aspects of aboriginal life. There must be more for the creation of such an obligation or duty.
[629] From Guerin and those cases which have followed it, I conclude that there are three fundamental criteria for the creation of a fiduciary relationship as between aboriginals and the Crown in respect of aboriginal title to land:
(1) the existence of Indian or aboriginal title;
(2) the fact that the Indian or aboriginal interest in the land is
inalienable except upon surrender to the Crown;
(3) the resulting responsibility of the Crown to the aboriginals flowing
from the surrender requirement.
[630] In the present case, the plaintiffs argue that a fiduciary relationship 2007 MBQB 293 (CanLII) existed between Canada and the Métis and that a fiduciary duty arose with respect to the section 31 land grants “out of the extinguishment (by statute, not by surrender…) of the Métis Aboriginal title”. The plaintiffs assert that “where a people exchange their Aboriginal rights for a statutory affirmation of certain rights to be held in lieu thereof, the same principles apply.”
[631] That may be so where the facts warrant such a finding. But it is not the case here. As I have already decided that the Métis did not hold aboriginal title, there was nothing to surrender or cede. In the result, no responsibility existed in the Crown relative to the land in question. Hence, no relationship of a fiduciary nature, nor fiduciary duty, existed between Canada and the Métis in respect of the subject land.
[632] The plaintiffs also argue the existence of a fiduciary relationship in respect of the section 31 grant by reason of the fact that the grant was to children. In my view, there is no merit to that assertion. “Children” does not in the language
of section 31 mean infants or minors. Rather, it is a description of lineage so
that even if there were merit in the argument that such a relationship existed
because the recipients were infants, it surely would not apply to those who fall within the description but were adults. Furthermore, however, in my view, the
Government did not stand in a fiduciary relationship to those entitled under section 31 but who in fact were infants. Their parents or guardians may well be fiduciaries to their children, but not the Government by reason only of the fact of 2007 MBQB 293 (CanLII) their infancy.
[633] In the result, I conclude that there was no fiduciary relationship which existed between the Métis (including the Métis children) and Canada in respect of the land which, by virtue of the Act, became part of Canada on the entry of
Manitoba into Confederation on July 15, 1870, nor was any fiduciary duty owing
in respect of it or of the children’s grants which were to be made and were made
under section 31.
HONOUR OF THE CROWN
[634] The plaintiffs assert that the honour of the Crown was engaged in this case whatever legal characterization is placed on the product of the negotiations.
They assert that the honour of the Crown must be observed in all of its dealings with aboriginal peoples, that it precedes and is the foundation of the Crown’s fiduciary duty, and that it is a source of independent obligation which continues throughout all dealings between the Crown and aboriginal people whether or not a fiduciary duty arises.
[635] Canada, on the other hand, argues that the honour of the Crown has no application to this case. It asserts that it is a doctrine which arises out of the
Crown’s historic relationship with Indians who are vulnerable, uneducated people unfamiliar with European ways and the technical nature of language, and who in their dealings with the Crown were required to deal in a foreign language with representatives who are better educated and far more skilled. In short, Canada asserts that the doctrine is one looked to or relied upon for the purpose of trying 2007 MBQB 293 (CanLII) to balance the inequities between aboriginals and the Crown in their dealings.
[636] The plaintiffs refer to excerpts from the judgment of McLachlin C.J. in both Haida Nation v. British Columbia (Minister of Forests), [2004] 3
S.C.R. 511, 2004 SCC 73, and in Taku River Tlingit First Nation v. British
Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC
74.
[637] In Haida Nation, supra, McLachlin C.J. wrote, at pp. 522-23:
¶ 16 The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples…. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.
¶ 17 The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In 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. Nothing less is required if we are to achieve “the reconciliation of the pre- existence of aboriginal societies with the sovereignty of the Crown”….
And, she wrote, at p. 528:
¶ 32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn 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.
[638] And, in Taku River Tlingit First Nation, supra, she wrote, at p. 564:
¶ 24 … As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult 2007 MBQB 293 (CanLII) and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.
[639] And, in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 at
286, 2002 SCC 79, Binnie J. wrote:
¶ 80 … Somewhat associated with the ethical standards required of a fiduciary in the context of the Crown and Aboriginal peoples is the need to uphold the “honour of the Crown”….
[640] In my view, in the circumstances of this case, the doctrine of honour of the Crown does not apply. I reach that conclusion for three reasons principally.
Firstly, as McLachlin C.J. wrote in Haida Nation, at p. 528:
¶ 32 … the Crown’s duty of honourable dealing toward Aboriginal peoples … 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.
And, in Taku River Tlingit First Nation, she wrote, at p. 564:
¶ 24 … The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.
But on the historical facts here, neither was the case. The Crown did not assert
sovereignty over the Métis in their capacity as Métis, nor did it take control of
land formerly in the control of that people.
[641] Secondly, the facts in this case make clear that the Métis were not a
vulnerable or unsophisticated people insofar as the representation or
advancement of their interests were concerned (or for that matter in a relative
context insofar as life within the Settlement was concerned) at the time of the 2007 MBQB 293 (CanLII)
discussions leading to the passage of the Act, or thereafter. For reasons which I
have already expressed, that is abundantly evident. The Métis were an active and vital part of the fabric of the community. They participated in its governance and economy and had for sometime. They did not view themselves as vulnerable people, but considered themselves as, and as entitled to the rights of, full-fledged citizens and would accept nothing less.
[642] Thirdly, the doctrine of honour of the Crown places upon the Crown the obligation to meaningfully consult with aboriginals, or their representatives.
[643] Here, however, the delegates who met with Macdonald and Cartier were sent as representatives of the Convention of 40 or Provisional Government to
represent the interests of the residents of the Settlement. They were not there as representatives of the Métis per se. Nor was the Act an instrument that dealt
specifically with or in respect of the rights or interests of the Métis.
[644] To attempt to analogize that which occurred here as in any way
comparable to dealings with aboriginals that would result in the creation or
invocation of the doctrine of honour of the Crown would, when placed in an
historical context, be both wrong in my view and insulting to the Métis at the
time.
[645] While it is true that many of the Métis residents themselves would
doubtless have been unsophisticated and not educated or well educated in the 2007 MBQB 293 (CanLII)
formal sense, as would have been the case with many of the non-Métis residents
of Red River, their leaders were and so were their delegates.
[646] In my view, the doctrine of honour of the Crown has no relevance to the
events which concluded with the passage of the Act effective July 15, 1870, or
to its interpretation or implementation.
SECTION 31 OF THE ACT
[647] I have already found on the evidence that there was no agreement or treaty negotiated or concluded between the Red River delegates and Macdonald and Cartier as representatives of Canada. Rather, an Act of Parliament was passed, section 31 of which is as follows:
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
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.
[648] In interpreting the Act, and in particular section 31 thereof, the starting
point is the ordinary meaning of the language viewed generously in an historical,
contextual and purposive manner. While we must look at the evidence which
reflects that which was said or done by those involved in the negotiations or
discussions leading to the Act so as to put matters in historical context and give 2007 MBQB 293 (CanLII)
purpose to that which Parliament did, ultimately, the exercise is to determine the
intent of Parliament in passing section 31. Only in the event of uncertainty or
ambiguity is there any need to look beyond the plain language of the section.
[649] When one looks at the available evidence material to the passage of the
Act, including section 31 thereof, which I have previously outlined in these reasons in some detail, the following conclusions in my view are evident:
! The Red River delegates came to Ottawa to discuss with Macdonald and
Cartier that which the people of the Settlement sought by way of rights
which they would enjoy following the territory’s entry into Confederation
as a Province. The delegates and their principals knew that ultimately
Parliament alone would make the decision in respect of those rights.
! Neither the Red River delegates nor their principals had contemplated a
land grant for the children, Métis or others. The four lists of rights make
clear that they expected the land rights then enjoyed by title or otherwise
by all in the community at the time to be confirmed for the future, and
that they intended and expected that the public lands would be owned by
the Province so that the Provincial Legislature would then be entitled to do
with those lands as it chose. It was only when it became clear to the
delegates that Canada would not agree to transfer ownership of the public
land to the Province that the concept of a children’s grant first arose.
! Canada, to the knowledge of Macdonald and Cartier, was in a difficult 2007 MBQB 293 (CanLII)
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 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.
! Macdonald had asked the Imperial Government to send troops to the
territory which he considered necessary to ensure peace and order at the
time of takeover. The Imperial Government had expressed certain
conditions upon which it was prepared to do so, one of which was that
Canada would have to make satisfactory arrangements with the settlers in
Red River. Both the Red River delegates and Macdonald and Cartier were
aware of this condition and were aware that if necessary, the Imperial 2007 MBQB 293 (CanLII)
Government might impose itself into the discussions to decide issues
concerning the settlers which could not be satisfactorily resolved as
between the Red River delegates and Canada.
! Macdonald and Cartier made clear to the Red River delegates the reason
why Canada would retain ownership of the public lands. This was
recorded in Ritchot’s diary on April 27, 1870. Macdonald and Cartier also
made clear to Parliament the reasons why Canada had to maintain
ownership of the public lands.
! The intent of Macdonald and Cartier in respect of the children’s land grant
is clear. This is found in the diary entries of Northcote wherein he
recorded a conversation with Cartier and a conversation with Macdonald
on May 2 and 4, 1870, respectively. May 2 was of course the day when
the Bill was introduced for first reading and both Macdonald and Cartier
spoke to the Bill in Parliament. May 4 was the day the Bill was first
introduced in printed form and both Macdonald and Cartier again spoke to
the Bill with Macdonald moving second reading.
! The delegates’ request that the selection of the grant be made by the
Lieutenant Governor on the advice of a local committee was not
acceptable to Macdonald and Cartier for the reasons which they had
expressed to Northcote, and to Parliament, as early as the first reading of
the Bill on the evening of May 2, 1870, when Macdonald made clear that 2007 MBQB 293 (CanLII)
the conduct of the Lieutenant Governor would be under the direction of
the Governor General in Council.
! The Red River delegates were aware of what was transpiring in Parliament
and, in particular, of the comments made by Macdonald and Cartier
concerning the land grant, as well as the strong opposition in Parliament
to providing any benefits to the Métis which many members described as
Riel’s followers.
! Macdonald and Cartier were aware of, and members of Parliament
appeared to accept, the need for settlement with the Indians in the
territory towards extinguishment of Indian title to the land.
! There was considerable parliamentary opposition to the suggestion of any
benefits to the Métis. Ritchot records this in his diary.
! Ritchot objected to the language of section 31 as compared with the
delegates’ demands. But he (and his co-delegates) were told by
Macdonald and Cartier that if there were to be any amendment suggested
to the language of the Bill, it would not pass; indeed, that they would
have enough trouble getting the Bill passed in the language it was in.
Ritchot discussed all of this including any suggestion of amendment with
others beyond simply the Red River delegates. The Bill then continued to 2007 MBQB 293 (CanLII)
passage.
! The Red River delegates, and their principals, knew that the meaning of
the reference in the Act to the land grant being towards the
extinguishment of Indian title was not clear. Ritchot reported this to the
Provisional Government on June 24, 1870. The following exchange
appears in The New Nation report of Ritchot’s appearance before the
Provisional Government:
Honourable Mr. O’Donoghue. Some gentlemen present do not, I find, understand clearly article 30 of The Manitoba Act, that having reference to the extinguishing of the Indian title by a land grant.
The President [Mr. Riel] — The grant is made to extinguish so much of the Indian title as is inherited by children having Indian blood. But apart from this, the general Indian title has to be extinguished by being dealt with separately. All those having Indian blood have a title which must be extinguished as well as the general Indian claim.
Rev. Mr. Ritchot — The half-breed title, on the score of Indian blood, is not quite certain. But in order to make a final and satisfactory arrangement, it was deemed best to regard it as certain, and to extinguish the right of the minority as Indians; and for that reason 1,400,000 acres were set aside by the Canadian government for the half- breed children of the country to extinguish their admitted right as half- breeds. This reservation does not in the least conflict with the 91st
section of the general act, where it is provided that certain tracts of land are to be reserved for, and owned by Indians.
It was then in response to another question from Mr. O’Donoghue that
Ritchot responded that the half-breeds taking these reserves were not to
be considered Indians.
! Macdonald appears to have been of a similar view. In Blais, the Supreme
Court of Canada wrote, at p. 248: 2007 MBQB 293 (CanLII) ¶ 22 … While s. 31 states that this land is being set aside “towards the extinguishment of the Indian Title to the lands in the Province”, this was expressly recognized at the time as being an inaccurate description. Sir John A. Macdonald explained in 1885:
Whether they [the Métis] had any right to those lands or not was not so much the question as it was a question of policy to make an arrangement with the inhabitants of that Province … 1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, because the half-breeds did not allow themselves to be Indians.
Macdonald went on to say (though not referred to in Blais):202
If they are Indians, they go with the tribe; if they are half-breeds, they are whites, and they stand in exactly the same relation to the Hudson Bay Company and Canada as if they were altogether white. That was the principle under which the arrangement was made and the Province of Manitoba was established.
[650] In making reference to the extinguishment of Indian title, a proposition which from the speeches in Parliament seemed to be accepted by the members, is it the case that the Government saw an opportunity to overcome parliamentary opposition to the making of a land grant to the Métis children and thereby be seen to be rewarding Riel and his followers, while at the same time
202 Exhibit 1-1678, page 3113
allowing for the creation of a land grant that would have the support of the Red
River delegates? It appears from the evidence that Northcote seemed to understand this to be so. He recorded in his diary for May 2, 1870, entries concerning Macdonald’s speech in Parliament introducing the Bill on first reading that day. With respect to the issue of the land grant, he wrote:
His mode of introducing the vexed question of the land reserve for the half-breeds was ingenious. He treated the land (1,200,000 acres) as being reserved simply for the purpose of extinguishing the Indian claims, and he threw in the suggestion that the grants to the people who might 2007 MBQB 293 (CanLII) be entitled to them were to be made in much the same way as the old grants to the U.E. Loyalists (United Empire Loyalists, to whom grants were made in Canada after the Independence of the United States), a reference very acceptable to the Ontario men….
[651] When one considers the available evidence, it is unrealistic and in my view wrong to conclude that Parliament, by enacting section 31, intended to create aboriginal title or anything tantamount to it, or to create a land base, particularly a contiguous land base, for the Métis.
[652] In my view, Parliament, as a matter of law, could not create aboriginal title because the essence of aboriginal title is that it existed before British
Sovereignty and was “not created by Royal Proclamation … or by any … executive order or legislative provision” (per Guerin, at p. 379).
[653] And, as a practical matter, the evidence leads to the conclusion that faced with the demands of the delegates, the directions of the Imperial Government, the comments of Macdonald and Cartier in particular as to their wishes and
Canada’s obligations to the HBC and the Indians, and the strong opposition in
Parliament to giving anything to Riel and his followers, the Government could
not, or at least would not, have proceeded to create something tantamount to aboriginal title, including a land base and particularly a contiguous land base for the Métis.
[654] Rather, the Government settled upon language which Parliament accepted in passing the Act, which would appease all sides and bring about a resolution of the impasse at Red River. This would enable the peaceful union of Rupert’s Land 2007 MBQB 293 (CanLII) with Canada and would permit Canada to take over the territory and its governance and to move forward with its dream and goal of nation building.
[655] I agree with Canada’s assertion that the land grant was simply a recognition of the contributions of the Métis to the settlement and development of the territory. And it was intended simply to give the families of the Métis through their children a head start in the new country in anticipation of the probable and expected influx of immigrants.
[656] In my view, a fair conclusion considering all of the relevant evidence is that the language:
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,…
was not intended by Parliament either to recognize the half-breeds as enjoying
Indian title or to be entitled to share in Indian title. Rather, it was a political
expedient used successfully by Macdonald and his government to satisfy the
delegates and make palatable to the Opposition in Parliament the grant of land to the children of the half-breeds and to thereby ensure passage of the Act.
[657] As well, the language of section 31 could not be understood to create aboriginal title or its equivalent in the subject lands, as there was no requirement in the section that the land grant be held communally or that it not be capable of alienation other than to the Crown. 2007 MBQB 293 (CanLII) [658] In short, what had existed in connection with Métis landholdings before the passage of the Act would continue thereafter even in respect of the children’s land grant, namely, that the Métis would continue to be entitled to own land on an individual rather than communal basis, and to hold that land or alienate it as they chose.
[659] Further, I reiterate my conclusion that section 31 did not create a fiduciary relationship between Canada and the Métis children or create fiduciary duties or obligations upon Canada with respect to that land.
[660] As Dickson J. wrote in Guerin, at p. 385:
It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. … [T]he Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not
a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.
[661] In light of my findings I conclude there was no sui generis relationship in respect of the subject land as between the Métis and the Crown prior to the enactment of section 31. And, what section 31 did was nothing more than to create a grant to a certain class of people, in this case, the Métis children. But that interest or entitlement to land did not derive from an interest independent 2007 MBQB 293 (CanLII) of the Crown. Rather, it was an interest that was created by the Crown by legislation. Accordingly, the Crown’s duty here was a public law duty and no fiduciary relationship was thereby created nor did any fiduciary duty or obligation arise between the Crown and the Métis children as a result.
THE MANITOBA ACT – SECTION 32
[662] Section 32 of the Act is as follows:
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.
(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.
[663] Historically, there was no independent ownership of land in the 2007 MBQB 293 (CanLII)
Settlement. Land tenure for all residents of the Settlement was at the sufferance of the governing power, the HBC, though there were some who occupied land outside the Settlement Belt but as squatters only.
[664] The residents of the Settlement were aware of the pending union. They, but particularly those who were squatters and held their land not by way of grant from the HBC but with the tacit approval of the HBC or with no tacit approval whatsoever, were anxious that with the union of Rupert’s Land and Canada they not lose their landholdings to immigrant settlers expected to come into the territory once Rupert’s Land became part of Canada.
[665] All four of the list of rights made reference to this concern. Clause 5 of the first list of rights stipulated for “A free Homestead and pre-emption Land
Law”. Clause 14 provided “That all privileges, customs and usages existing at the time of the transfer be respected”.
[666] In the second list of rights, clause 8 stipulated for “A Homestead and Pre-
emption Law” and clause 16 provided “That all properties, rights and privileges,
as hitherto enjoyed by us, be respected and recognition and arrangement of
local customs, usages and privileges, be made under the control of the Local
Legislature”.
[667] In the third list of rights, clause 5 provided “That all properties, rights and privileges enjoyed by the people of this Province up to the date of our entering 2007 MBQB 293 (CanLII)
into Confederation be respected and that the arrangement and confirmation of
all customs, usages and privileges be left exclusively to the Local Legislature”.
[668] And in the fourth list of rights, clause 5 provided “That all properties, rights and privileges enjoyed by us up to this day be respected, and that the recognition and settlement of customs, usages and privileges be left exclusively to the decision of the Local Legislature”.
[669] This concern was known by Canada and commented upon by various authorities or officials representing Canada on different occasions following the
insurrection but prior to the passage of the Act.
[670] On December 6, 1869,203 a proclamation was issued by the Governor
General of Canada addressed to the residents of the Settlement in which, in part,
he stated:
203 Exhibit 1-0346
By Her Majesty’s authority I do therefore assure you, that on the union with Canada all your civil and religious rights and privileges will be respected, your properties secured to you, and that your country will be governed as in the past under British laws, and in the spirit of British justice.
[671] On December 7, 1869,204 Joseph Howe (“Howe”), Secretary of State for
the Provinces, told McDougall that in his communications with the residents of the North-west, he should assure them “that all their properties, rights and equities of every kind as enjoyed under the government of the Hudson’s Bay 2007 MBQB 293 (CanLII) Company will be continued them, and that in granting titles to land, now occupied by the settlers, the most liberal policy will be pursued.”
[672] By letter dated January 3, 1870,205 Macdonald wrote Smith responding to
his communications of December 19 and 20, 1869. In his letter, Macdonald
indicated that he had read the claims of the insurgent half-breeds and instructed
Smith as to what his government was willing to concede. He wrote, in part:
There is no general Homestead Law in Ontario as you state in your letter, but you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.
[673] And Smith, in a lengthy report to Howe dated April 12, 1870,206 advised
Howe of that which he had told the Convention of 40 in response to its demand
for a homestead and pre-emption law. He replied to that demand as follows:
8th I have been instructed by the Canadian government – to make known to the people of the Settlement – that all property held by residents in peaceable possession will be secured to them; and that a most Liberal land policy in regard to the future Settlement of the country
204 Exhibit 1-0347 205 Exhibit 1-0372 206 Exhibit 1-0446
will be adopted – every privilege in this respect enjoyed in Ontario or Quebec, being extended to the Territory.
[674] It must be noted that the concerns and demands of the leaders of the
Settlement as evidenced by the lists of rights related not to the French Métis or
to the English half-breeds but to all of the residents of the Settlement. As well, the expressions of assurance given were not given to the French Métis or the
English half-breeds but to all of the residents. 2007 MBQB 293 (CanLII) [675] Further, section 32 itself does not contain language, the plain reading of which recognizes or provides for the French Métis or English half-breeds.
Rather, the section was for the benefit of all settlers.
[676] Subsections (1) through (4) address the various kinds of land tenure which then existed and were recognized within the territory, namely, freehold grants from the HBC, estates less than freehold grants from the HBC, occupancy within the Settlement Belt with the sanction and under the license and authority of the HBC, and peaceable possession of land outside the Settlement Belt. The purpose, as expressed in the opening provision of section 32, was to quiet titles and assure the settlers in the Province the peaceable possession of the lands then held by them.
[677] As regards subsections (1) and (2), the persons were entitled to obtain from the Crown a grant of an estate in freehold for the subject land. The plaintiffs advance no claim in respect of these subsections except on the basis generally of delay.
[678] As regards subsection (3), the persons who were entitled were squatters
within the Settlement Belt; that is, persons who simply occupied land by way of
licence or permission express or tacit of the HBC. Those persons were given the
right, if they wished, to convert their occupancy by licence into an estate in
freehold by grant from the Crown.
[679] The persons entitled under subsection (4) were also squatters on land
outside the Settlement Belt; that is, where Indian title had not been 2007 MBQB 293 (CanLII)
extinguished. They, too, were given entitlement to certain rights in respect of that land.
[680] The language of subsection (5) was likewise clear. The Lieutenant-
Governor, under regulations of the Governor General in Council, was authorized to fairly and equitably ascertain and adjust the rights of common and rights of cutting hay enjoyed by the settlers in the province and have them commuted by land grants from the Crown.
[681] The plaintiffs assert that since Parliament by section 33 of the Act reserved to the Crown the power to implement the land provisions of the Act by order in council, Canada thereby became a fiduciary in respect of such land with fiduciary responsibility to the recipients in the formulation and administration of the regulations.
[682] I do not agree. Firstly, there is no evidence that Parliament intended by section 32 to create a fiduciary relationship between Canada and the residents who fell within section 32 and particularly subsections 32(3), (4) and (5).
[683] Secondly, there is not, in my view, any basis for the creation of a fiduciary responsibility between Canada and those residents. None of those residents held aboriginal title to the land in question. None held any interest or any claim to interest independent of the Crown or through it the governing authority of the 2007 MBQB 293 (CanLII) territory. This was particularly so under subsections (3) and (4) being squatters whose occupation was by tacit approval only and under subsection (5), whose interest was as to the use of land but only with the approval of and subject to the conditions imposed by the Crown or governing authority within the territory.
[684] The governing authority was either the HBC by virtue of grant or licence from the British Crown, or at the material time the British Crown by reason of the
HBC’s surrender of the land back to the British Crown in exchange for the
£300,000 payment by Canada. The British Crown in turn ceded the subject land to Canada at the time of the transfer.
[685] In short, the persons entitled under section 32 had no interest in the land independent of the Crown and furthermore enjoyed whatever interest they had by sufferance of the Crown.
[686] Referring again to the language of Dickson J. in Guerin at p. 385,
referred to in para. 329 of these reasons, I conclude that Canada had nothing
more than a public law obligation under section 32 of the Act.
IMPUGNED ENACTMENTS
[687] The plaintiffs assert that certain enactments, both federal and provincial,
are unconstitutional. The allegations are raised in the statement of claim, and
are amplified by the plaintiffs’ response to particulars filed March 24, 2005, and 2007 MBQB 293 (CanLII)
found at tab 2 of the trial record.
[688] No specific area of argument, written or oral, was provided by the
plaintiffs relative to the impugned federal enactments though there was with
respect to the impugned provincial enactments. I propose, therefore, in these
reasons to deal with the impugned provincial enactments first, followed by the
impugned federal enactments.
IMPUGNED PROVINCIAL ENACTMENTS
[689] The plaintiffs do not assert that Manitoba passed any legislation undermining rights provided under section 32 of the Act.
[690] But they argue that Manitoba did pass legislation relating to and
facilitating disposition by half-breed children of section 31 lands and that this
legislation was ultra vires in that it:
(a) constituted amendments or alterations to the Act contrary to
section 6 of the Constitution Act, 1871, and was otherwise
unconstitutional;
(b) trenched on federal jurisdiction under subsection 91(1) of the
Constitution Act, 1867;
(c) trenched on federal jurisdiction under subsection 91(24) of the 2007 MBQB 293 (CanLII) Constitution Act, 1867.
[691] The plaintiffs therefore seek declarations that certain provincial enactments were ultra vires, or otherwise unconstitutional, and that by enacting certain legislation and by imposing taxes on section 31 lands prior to the grant of those lands, Manitoba unconstitutionally interfered with the fulfillment of obligations under section 31 of the Act.
[692] Manitoba asserts that the provincial legislation impugned by the plaintiffs was validly enacted pursuant to the province’s powers under section 92 of the
Constitution Act, 1867. It asserts, as well, that none of the provisions in the impugned legislation constituted amendments or alterations to section 31 of the
Act contrary to section 6 of the Constitution Act, 1871 or otherwise.
[693] Manitoba asserts that either legislation is intra vires, or ultra vires. There is no doctrine of “otherwise unconstitutional.” If legislation is ultra vires, the only remedy that may be sought by the plaintiffs in respect of such legislation is
a declaration of unconstitutionality. It says there is no doctrine of
“unconstitutional interference” and accordingly no declaration to this effect can issue out of this court.
[694] Manitoba relies upon the presumption of constitutionality which was explained by the Supreme Court of Canada in Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662, [1978] S.C.J. No. 25 (QL), wherein Ritchie J., for the majority, wrote, at pp. 687-88: 2007 MBQB 293 (CanLII)
In all such cases the Court cannot ignore the rule implicit in the proposition stated as early as 1878 by Mr. Justice Strong in Severn v. The Queen (1878), 2 S.C.R. 70 at p. 103, that any question as to the validity of provincial legislation is to be approached on the assumption that it was validly enacted. As was said by Fauteux J., as he then was, in the Reference re The Farm Products Marketing Act, [1957] S.C.R. 198 at p. 255:
There is a presumptio juris as to the existence of the bona fide intention of a legislative body to confine itself to its own sphere and a presumption of similar nature that general words in a statute are not intended to extend its operation beyond the territorial authority of the Legislature.
[695] And, in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000
SCC 31, the Supreme Court of Canada wrote, at p. 802:
¶ 25 … The presumption of constitutionality means that … the party challenging the legislation, is required to show that the Act does not fall within the jurisdiction of Parliament…. which in that case was the enacting Legislature.
[696] As well, in Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R.
6, 2003 SCC 3, Major J., for a unanimous court, wrote, at p. 26:
¶ 33 In making this determination, I am mindful of the presumption of constitutionality…. When faced with two plausible characterizations of a
law, we should normally choose that which supports the law’s constitutional validity.
[697] Manitoba argues as well that another aspect of the presumption of
constitutionality flows out of respect for the principle of cooperative federalism.
While governments cannot by agreement lend legitimacy to a claim of intra vires, the fact that the two levels of government agree that legislation is constitutional is deserving of careful consideration by the courts. 2007 MBQB 293 (CanLII) [698] Dickson C.J., in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R.
2, [1987] S.C.J. No. 48 (QL), wrote the following in that regard, at p. 19:
I think it is important to note, and attach some significance to, not only the similar federal legislation but also the fact that the federal government intervened in this appeal to support the Ontario law. The distribution of powers provisions contained in the Constitution Act, 1867 do not have as their exclusive addressees the federal and provincial governments. They set boundaries that are of interest to, and can be relied upon by, all Canadians. Accordingly, the fact of federal- provincial agreement on a particular boundary between their jurisdictions is not conclusive of the demarcation of that boundary. Nevertheless, in my opinion the Court should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it….
[699] Manitoba argues that this proposition is of particular importance in the present case because of the fact that Canada not only supports the constitutionality of Manitoba’s legislation but also supported the constitutionality of the legislation when the statutes were first passed and during an era when the power of disallowance was regularly engaged.
[700] In addressing the plaintiffs’ attack on the constitutional validity of its legislation, Manitoba asserts that its legislation is constitutional as falling within
subsection 92(13) — property and civil rights in the province — or subsection
92(14) — the administration of justice in the province — of the Constitution
Act, 1867.
[701] Peter W. Hogg, Constitutional Law of Canada, 4th ed. (loose-leaf)
(Toronto: Carswell, 1997) at pp. 21-2 and 21-3, describes property and civil rights under subsection 92(13) “as a compendious description of the entire body of private law which governs the relationship between subject and subject.” 2007 MBQB 293 (CanLII)
“Civil rights” under this heading does not include fundamental civil rights or liberties, but rather refers to proprietary, contractual and tortious rights.
[702] In Citizens Insurance Co. of Canada v. Parsons, [1881-85] All E.R.
Rep. 1179, the Privy Council, when discussing the meaning of the words
“property and civil rights” found in subsection 92(13), wrote:
There seems no reason for presuming that contracts and the rights arising from them were not intended to be included in this provision….
[703] And, in Attorney-General for the Dominion of Canada v.
Attorneys-General for the Provinces of Ontario, Quebec, and Nova
Scotia, [1898] A.C. 700 at 716, the Privy Council made clear that legislation
dealing “directly with property, its disposal, and the rights to be enjoyed in
respect of it”, came within provincial legislative competence under subsection
92(13).
[704] To the extent the impugned legislation dealt with The Queen’s Bench
Act or Queen’s Bench procedure, Manitoba says that that clearly falls within provincial legislative competence under subsection 92(14) of the Act.
[705] The court must here determine whether the impugned provincial
legislation is in respect of contract and the rights arising therefrom or property
and the rights to be enjoyed in respect of it including its disposal as between
individuals, or whether the impugned provincial legislation is in relation to federal 2007 MBQB 293 (CanLII)
property and/or Indians and lands reserved for the Indians. If the former, the
impugned legislation is intra vires and constitutionally valid. If the latter, as asserted by the plaintiffs, then the impugned legislation would be ultra vires and constitutionally invalid.
[706] In order to determine whether an Act falls within a provincial or federal head of power, the court must embark upon a division of powers analysis. That is, the court must determine the pith and substance of the legislation.
[707] In Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002
SCC 17, McLachlin C.J., for a unanimous court, wrote, at p. 578:
¶ 16 … The pith and substance analysis asks two questions: first, what is the essential character of the law? Second, does that character relate to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867?
[708] In Reference re Firearms Act (Can.), supra, the Supreme Court of
Canada wrote, at pp. 796-97:
¶ 16 The first task is to determine the “pith and substance” of the legislation. To use the wording of ss. 91 and 92, what is the “matter” of the law? What is its true meaning or essential character, its core? To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law.
¶ 17 A law’s purpose is often stated in the legislation, but it may also be ascertained by reference to extrinsic material such as Hansard and government publications…. While such extrinsic material was at one time inadmissible to facilitate the determination of Parliament’s purpose, it is now well accepted that the legislative history, Parliamentary debates, and similar material may be quite properly considered as long as it is relevant and reliable and is not assigned undue weight…. Purpose may also be ascertained by considering the “mischief” of the legislation — the problem 2007 MBQB 293 (CanLII) which Parliament sought to remedy….
¶ 18 Determining the legal effects of a law involves considering how the law will operate and how it will affect Canadians. … Within its constitutional sphere, Parliament is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of powers analysis…. Rather, the inquiry is directed to how the law sets out to achieve its purpose in order to better understand its “total meaning”….
And, the court wrote, at p. 799 and pp. 801-2:
¶ 21 Another way to determine the purpose of legislation is to look at the problems it is intended to address — the so-called “mischief” approach.
. . . . .
¶ 25 Having assessed the pith and substance or matter of the law, the second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. We must examine the heads of power under ss. 91 and 92 of the Constitution Act, 1867 and determine what the matter is “in relation to”.
[709] In Kitkatla Band v. British Columbia (Minister of Small Business,
Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, LeBel J., for a unanimous court, wrote, at p. 171:
¶ 53 A pith and substance analysis looks at both (1) the purpose of the legislation as well as (2) its effect. First, to determine the purpose of the legislation, the Court may look at both intrinsic evidence, such as purpose
clauses, or extrinsic evidence, such as Hansard or the minutes of parliamentary committees.
¶ 54 Second, in looking at the effect of the legislation, the Court may consider both its legal effect and its practical effect. In other words, the Court looks to see, first, what effect flows directly from the provisions of the statute itself; then, second, what “side” effects flow from the application of the statute which are not direct effects of the provisions of the statute itself…. Iacobucci J. provided some examples of how this would work in Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 23:
The effects of the legislation may also be relevant to the validity of the legislation in so far as they reveal its pith and 2007 MBQB 293 (CanLII) substance. For example, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, the Court struck down a municipal by-law that prohibited leafleting because it had been applied so as to suppress the religious views of Jehovah’s Witnesses. Similarly, in Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117, the Privy Council struck down a law imposing a tax on banks because the effects of the tax were so severe that the true purpose of the law could only be in relation to banking, not taxation. However, merely incidental effects will not disturb the constitutionality of an otherwise intra vires law.
[710] In Ward, supra, the Supreme Court of Canada made clear that a pith and substance analysis is not to become or to be technical or formalistic but rather is really a matter of interpretation.
[711] As I have commented previously in other parts of this judgment, there is no viva voce evidence from witnesses alive at the material time. In performing a pith and substance analysis, attempting to determine both the purpose of the enacting body and the legal effect of the law, the court is faced with the difficult challenge of so doing in respect of legislation more than 125 years old.
[712] Manitoba concedes that under the Act, legal title to the land to be granted under section 31 was held by Canada and would remain with Canada
until the grant or patent to the specific land was issued by Canada to the individual entitled thereto under the Act. But Manitoba argues that while the legal estate rested with Canada until the grant or patent was actually issued, an individual could in the meantime and prior to grant of patent hold a beneficial interest to such land. Manitoba concedes that it could not legislate in respect of the legal estate in that land until the grant had been made by Canada to the individual recipient but argues that it could legislate in respect of the beneficial 2007 MBQB 293 (CanLII) interest of such person.
[713] The evidence is clear that from an early date, well before grants of patent first occurred, sales of interests in respect of the section 31 land grant began.
As early as November 30, 1872, and thereafter, statements were published in the local newspapers cautioning the Métis to be aware of speculators, to retain their interests in the section 31 lands and as well to renege on any improvident transactions that any had entered into.
[714] While the sale of such interests was doubtless a cause of concern for at least some in the community, the fact was that the Métis had the same rights as citizens as did any other person in the province, except Indians. This, of course, included the right to enter into contracts pursuant to the common law. One’s right of claim in the section 31 grant was a saleable asset and but for statutory provisions all of the ordinary laws of contract would apply to any agreement respecting the sale and purchase of such an asset, including sale by an infant which was permissible at common law.
[715] Manitoba argues that as it was recognized at the time that contracts had been and were being entered into with respect to individuals’ interests in the section 31 grant, the Legislature chose to address the issue by passing The
Half-breed Land Grant Protection Act, S.M. 1873, c. 44 (hereinafter “The
Half-breed Land Grant Protection Act, 1873”). That Act dealt with contracts entered into for the sale of one’s share or interest in the section 31 land grant prior to patent. It made such contracts voidable at the instance of the 2007 MBQB 293 (CanLII) half-breed vendor. Manitoba asserts that that Act dealt solely with contract issues.
[716] The plaintiffs do not impugn The Half-breed Land Grant Protection
Act, 1873, although they say that it would appear to be beyond provincial jurisdiction by virtue of subsection 91(24). I will deal with the subsection 91(24) argument in due course.
[717] By the end of 1876, final allotments with respect to the section 31 grant were being made. Individuals no longer had simply a right to share in the
1,400,000 acres, but in fact were being allotted an actual piece of land.
[718] Manitoba says the evidence discloses there were strong feelings in
Manitoba that those citizens entitled to such land, albeit Métis, should be entitled to act in accordance with their personal values, that is, that those who wished to hold, or to cultivate, or to sell the land, including following allotment but before the issuing of patents, should be permitted the opportunity to do so.
[719] Such evidence, Manitoba says, is found, for example, in the parish
petitions of 1875,207 the minute of the Executive Council of Manitoba dated
November 18, 1876,208 and the address of the Legislative Assembly of Manitoba
dated February 19, 1877.209
[720] But the state of the law in 1876 was such that the common law of
contract continued to govern but for its modification by The Half-breed Land
Grant Protection Act, 1873. That Act, making such transactions voidable at 2007 MBQB 293 (CanLII)
the instance of the vendor, made sales very risky for the purchasers and from a
market perspective, it can be safely inferred, would have a deleterious impact on
the sale price of the interest.
[721] The plaintiffs, in paragraph 50 of their statement of claim, allege that the
following provincial enactments are unconstitutional:
▪ 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 (hereinafter “The Half-Breed
Land Grant Amendment Act, 1877”);
▪ An Act to enable certain children of Half-breed heads of
families to convey their land, S.M. 1878, c. 20 (hereinafter
207 Exhibits 1-1034, 1-1039 to 1-1041 and 1-1043 208 Exhibit 1-1220 209 Exhibit 1-1255
“The Half-Breed Land Grant Act, 1878”);
▪ An Act to amend the Act intituled: An Act to enable certain
children of Half-breed heads of families to convey their
land, S.M. 1879, c. 11 (hereinafter “The Half-Breed Land Grant
Act, 1879”);
▪ An Act respecting Half-Breed lands and quieting certain 2007 MBQB 293 (CanLII) titles thereto, S.M. 1881 (3d Sess.), c. 19 (hereinafter “The
Quieting Titles Act, 1881”);
▪ An Act to explain certain portions of the Half-Breed Lands
Act, S.M. 1883, c. 29 (hereinafter “The Half-Breed Lands Act,
1883”);
▪ An Act concerning Decrees and Orders on the Equity Side of
the Court of Queen’s Bench, Manitoba, S.M. 1884, c. 8
(hereinafter “The Decrees and Orders Act, 1884”);
▪ An Act relating to the Titles of Half-Breed Lands, S.M. 1885,
c. 30 (hereinafter “The Quieting Titles Act, 1885”);
▪ An Act to provide for the payment to Half-Breeds of the
amounts to which they are entitled, and which are invested
in securities which cannot be realized, S.M. 1885, c. 34
(hereinafter “The Payment of Securities Act, 1885”);
▪ every enactment under which, and to the extent that, taxation was
imposed in respect of section 31 lands prior to grant.
[722] The Acts impugned by the plaintiffs and Manitoba’s position as to the
alleged basis for their unconstitutionality are as follows:
The Half-Breed Land Grant Amendment Act, 1877
[723] The plaintiffs assert this Act was unconstitutional in that it permitted all 2007 MBQB 293 (CanLII) sales by Métis children of section 31 lands which were executed after the coming
into force of the Act, and thereby unconstitutionally permitted the sale of
allotments prior to grant, contrary to section 31.
[724] Manitoba asserts that, in the circumstances, it had a significant reality to
deal with. The section 31 land was shortly to begin being issued. Manitoba
could have left the matter entirely under the common law as amended by The
Half-breed Land Grant Protection Act, 1873, or it could have chosen to
pass further legislation in an attempt to supplement and improve the common
law to address the issue at hand. It chose the latter and enacted The Half-
Breed Land Grant Amendment Act, 1877.
[725] In introducing that Act, Premier Davis advised that its purpose was to
“give satisfaction to the greatest number” and on seconding the motion,
Mr. Norquay indicated that it was designed to remove a barrier.210
210 Exhibit 1-1257, page 1
[726] Manitoba says this legislation removed the absolute right of repudiation afforded the vendor under The Half-breed Land Grant Protection Act, 1873 but still made provision for safeguards to attempt to protect against improvident sales. This Act modified the common law by providing two additional safeguards, namely, an obligation for a deed, and an obligation for “valid consideration”.
[727] Prior to July 15, 1870, it appears that the Statute of Frauds did not apply 2007 MBQB 293 (CanLII) in what thereafter became Manitoba. In Templeton v. Stuart, a decision of the Court of Queen’s Bench, November 11, 1892,211 Bain J. stated:
The laws in force here prior to the transfer being the law of England as it existed on May 2, 1670 (the date of the Hudson’s Bay Company Charter), a sale of land could be by parol as the Statute of Frauds was not then in force.
[728] This had been previously stated by Killam J. in Sinclair v. Mulligan
(1886), 3 M. R. 481 (Q.B.) who, at p. 491, wrote:
It was not for some seven years after the date of the company’s charter that the Statute of Frauds was enacted. Before its enactment a verbal agreement for the sale of land was valid and binding;… The necessary conclusion then is that … a mere verbal bargain and sale of land was sufficient to pass the title thereto both at law and in equity as it would have been in England in 1670….
Such was undoubtedly the prevalent mode of transferring land, until the transfer to Canada, among the half breeds and older white settlers, though later settlers undoubtedly brought with them and largely adopted the more satisfactory usage of evidencing such transactions by writing. These verbal transfers of land, appear from such records as I can find, to have been recognized in the courts. They have certainly continually been recognized by the Government in dealing with the issuing of patents in cases of both disputed and undisputed claims; they
211 Exhibit 1-1952
were uniformly recognized by the Commissioners from time to time appointed by the Government to consider disputed claims to patents.
[729] And, at p. 492, he wrote:
I am of opinion also that this system must be considered as having been in force until the full introduction of the laws of England of a later date by the Legislature of Manitoba.
[730] In the 1870s, there was no legal requirement in Manitoba that interests in
land be conveyed in a specific manner. By insisting as this Act did on a deed for
the sale of one’s right to section 31 land, the Legislature ensured that some 2007 MBQB 293 (CanLII) element of formality would enter the process.
[731] As well, by insisting on “valid consideration”, the Legislature further modified the common law. Prior thereto, the courts did not inquire into the
“adequacy of consideration”. But in amending the common law to require “valid consideration”, the courts became empowered to make inquiry into the validity of the consideration.
[732] Manitoba, accordingly, submits that the purpose of The Half-Breed
Land Grant Amendment Act, 1877, was to deal with the law of contract, a matter which clearly falls under subsection 92(13) of the Constitution Act,
1867.
The Half-Breed Land Grant Act, 1878
[733] The plaintiffs say this statute was unconstitutional in that it set forth a special set of rules governing Métis infants, as an exception to An Act
respecting Infants and their Estates, S.M. 1878, c. 7 (hereinafter “An Act
respecting Infants”), assented to on the same day, February 2, 1878.
[734] The Act provided that all sales by 18-year-old Métis with the consent of
their parents would be “as if such child was of the full age of 21 years”. This had the effect of permitting Métis children over the age of 18 years to dispose of their land without the normal judicial investigation required under An Act
respecting Infants whether this was in the child’s best interests. 2007 MBQB 293 (CanLII)
[735] The plaintiffs say that evidence was given to the Land Grants’ Inquiry in
1881 that the court routinely disregarded such safeguards in the disposition of
Métis infant estates. They assert that between 1878 and 1881, tens of
thousands of acres of section 31 lands were ordered to be sold by the Manitoba
Court of Queen’s Bench. In making these orders, the judges dispensed with the safeguards provided by An Act respecting Infants and by the general orders of the court for the protection of the interests of the infants.
[736] Manitoba argues that in order to understand the purpose of this Act, one must remember that at common law, minors could and still can enter into contracts. However, they enjoy the right of repudiation in certain situations.
[737] In V. Di Castri, The Law of Vendor and Purchaser: The Law and
Practice Relating to Contracts for Sale of Land in the Common Law
Provinces of Canada, 2nd ed. (Toronto: Carswell, 1976) at p. 64, the following
appears:
An infant’s contract to sell or buy land is not void but voidable by him within a reasonable time after his coming of age,… Failing such avoidance, the contract is valid and enforceable against the infant; the liability of the adult contracting party exists ab initio.
[738] This is concurred in in D.W. Waters, Law of Trusts in Canada, 2nd ed.
(Toronto: Carswell, 1984) at p. 92, wherein the following appears:
With regard to land, the common law permits an infant to hold a legal interest in land, and to dispose of it, but for the infant’s protection it provides that the disposition for value, including a settlement of the interest, is voidable unless, …, he abides by it during infancy and fails to repudiate the disposition within a short time of coming of age. 2007 MBQB 293 (CanLII)
[739] There was no requirement at common law that parents or guardians join
in the execution of a minor’s contract. The common law age of majority for
contract purposes was 21 years and would have been applicable in Manitoba
except as amended by statute. Order in Council April 25, 1871, stated that
“claimants of the age of 18 and over shall receive their patents without delay and
minors on arriving at that age.”212
[740] Manitoba argues that this could be taken as a statutory modification of the age of majority, fixing it at age 18 for the purpose of section 31 grants. It says another interpretation is that section 31 recipients under the age of 21 would be subject to the common law contract rules respecting minors. Manitoba thus asserts that given the lack of certainty over what legal regime applied to 18 to 20 year olds, the province had reason to step in and legislate.
212 Exhibit 1-0608
[741] It argues that the Manitoba Legislature by this enactment set rules pertaining to contract which would provide additional safeguards to protect
vendors between the ages of 18 and 21 years respecting the section 31 lands.
[742] It says The Half-Breed Land Grant Act, 1878 supplemented the
common law by requiring the consent of parents to the contract and
confirmation by a judge or two justices of the peace that the child was
voluntarily consenting to the transaction. The attestation was only prima facie 2007 MBQB 293 (CanLII)
evidence of consent. It remained open for a child to seek court intervention if
the consent was not in fact voluntarily given.
[743] The Half-Breed Land Grant Act, 1878 also stated that the contract
was to be interpreted “as if such child was of the full age of twenty-one years”.
Arguably, this provision would have removed the child’s common law right of
repudiation thus giving purchasers a more secure interest and from a market
perspective probably would have contributed to higher prices.
[744] Manitoba asserts that The Half-Breed Land Grant Act, 1878 falls
within property and civil rights as it deals with contracts. It disputes the
plaintiffs’ allegation that this Act enabled sales before patent. Manitoba says it
was the common law that enabled sales before patent and that the legislation in
fact simply supplemented the common law rules of contract so as to provide
some clarification and protection for infants.
The Half-Breed Land Grant Act, 1879
[745] The plaintiffs assert this statute was unconstitutional in that by allowing sale by power of attorney, both prospectively and retroactively, it further facilitated the sale of allotments of section 31 lands by Métis children 18 years of age and older. As well, it was unconstitutional in that it purported to legalize certain deeds and conveyances made under S.M. 1878, c. 20, which did not comply with the provisions of the said statute. 2007 MBQB 293 (CanLII)
The Half-Breed Lands Act, 1883
[746] The plaintiffs assert this Act was unconstitutional in that it provided that where a “half-breed” child over the age of 18 years was an orphan, no parental consent was required to sell the child’s allotment of or interest in section 31 land, and it retroactively validated such sales which had already taken place.
[747] Manitoba asserts that it is possible to ascertain the purpose of these two
Acts from the wording of the statutes themselves. The Half-Breed Land
Grant Act, 1879 addressed the issues of parental consent when both parents were no longer alive and spousal consent if the grantor was married. As well, it addressed empowering another to undertake acts by power of attorney when the grantor of the power of attorney was under 21 years. The legislation simply ensured that the same safeguards of parental consent and judicial scrutiny applied whether the transaction was done directly or through an attorney. The
Half-Breed Lands Act, 1883 clarified the situation for illegitimate minors and
unmarried orphans.
[748] Manitoba asserts that these two Acts simply deal with the formalities of
contract execution and thus fall squarely within the province’s jurisdiction over
property and civil rights.
The Quieting Titles Act, 1881 2007 MBQB 293 (CanLII) [749] The plaintiffs allege this Act was unconstitutional in that it set aside all age
restrictions in respect of the sale of interests in the land described in section 31 of the Act, which, since 1878, had been patented regardless of the patentee’s age. As well, it was unconstitutional in that it retroactively validated all previous sales regardless of whether they had been performed in accordance with the law.
[750] The preamble of this Act states that there had been a difference of opinion as to the proper interpretation of statutes. The confusion appears to have arisen over the status of beneficial interests and what legal regime would apply to them. The evidence indicates that there appears to have been a difference of opinion expressed between members of the Law Students Society and the obiter dicta of Wood C.J. in In re Thibeaudeau (1879), T.W. 149, a
decision of the Manitoba Queen’s Bench.
[751] This Act in section I provided that conveyances by deed prior to patent
vested the beneficial estate, i.e., that such transaction would not thereafter be
automatically voidable. Other sections of the Act appeared also to deal with technical issues concerning dealings in land or interests in land.
[752] Manitoba asserts that this Act did not impact on any interest in land but simply clarified the legal requirements if individuals chose to deal with their land.
The Quieting Titles Act, 1885
[753] The plaintiffs assert this Act was unconstitutional in that it further 2007 MBQB 293 (CanLII) validated various conveyances which had been carried out.
[754] This Act was passed on the same day as was the legislation which introduced the Torrens system. Manitoba argues that this Act’s objective was to cure technical defects, not substantive defects. In Barber v. Proudfoot,
[1889] Western Law Times 144, a decision of the Manitoba Court of Queen’s
Bench en banc, Taylor C.J., for the court, in dealing with this Act, wrote, at
p. 146:
The object of the statute is to cure defects, irregularities and omissions in connection with the doing of something authorized by the court to be done, not to validate proceedings wholly unauthorized.
[755] And in Hardy v. Desjarlais (1892), 8 M. R. 550, a decision of the
Manitoba Queen’s Bench en banc, Killam J., at p. 567, wrote (again, in reference
to this Act as follows):
… But, at any rate, it appears to me that what are aimed at are informalities of practice and omissions not apparent on the face of the proceedings, or of a trifling and unimportant character.
[756] Manitoba asserts that the purpose of the latter sections of this Act was to
put in place a regime to allow the Registrar of Land Titles to do his job, that is,
to be able to rely on documents and recitals as conclusive proof. But, in the
event of a dispute, such documents or recitals were prima facie evidence only
against all parties in court. While the plaintiffs argue that “all parties” excludes the original grantee, Manitoba submits that there is nothing in the words of the statute or in the case law that supports such an interpretation.
The Decrees and Orders Act, 1884
[757] The plaintiffs assert this statute was unconstitutional in that it 2007 MBQB 293 (CanLII) retroactively validated irregular decrees or orders previously given.
The Payment of Securities Act, 1885
[758] The plaintiffs assert this Act was unconstitutional solely because it was a law of special application which trenched on subsection 91(24) of the
Constitution Act, 1867. There is no reference in the plaintiffs’ argument to this Act.
[759] While the plaintiffs impugn these two statutes in their statement of claim, they provide no analysis in their argument as to why these Acts are alleged to be unconstitutional.
[760] The former is a one-section Act which regularizes orders signed by a court official rather than a judge who pronounced the order. The latter directed that investments that had been authorized by court order but which could not be realized upon were to be made good through the provincial treasury.
[761] Manitoba argues that both Acts fall squarely within its jurisdiction over the
administration of civil justice. There is, as indicated, no argument by the
plaintiffs to the contrary or otherwise.
[762] Generally, the plaintiffs assert that every enactment under which, and to
the extent that, taxation was imposed in respect of section 31 lands prior to
grant or patent is unconstitutional. 2007 MBQB 293 (CanLII) [763] The plaintiffs seek a declaration that every enactment under which, and to
the extent that, taxation was imposed in respect of section 31 lands prior to
grant is unconstitutional. The plaintiffs do not specify which statutes are at
issue.
[764] Manitoba argues that a finding of unconstitutionality cannot be made in a
vacuum. A specific statute or section must be identified and a basis advanced
for the argument. Manitoba says that since the plaintiffs have not done so, this
portion of the claim ought to be dismissed.
[765] In support of their argument that Manitoba’s taxation laws were unconstitutional, the plaintiffs relied upon a letter from the Deputy Minister of
Justice to the Deputy Minister of the Interior dated April 18, 1887,213 which
discussed tax sales and, in particular, “whether sales of unpatented Dominion
lands for taxes, and the deeds of such lands from the proper municipal officers
213 Exhibit 1-1755
to the purchasers of such sales are valid, and whether such deeds should be recognized by your Department….”
[766] In that letter, the Deputy Minister of Justice reports the opinion of the
Minister of Justice on the matter as follows:
Since the receipt of your letter I have brought the matter before the Minister of Justice and I have now the honour to state by his direction that in his opinion the Crown may properly and should refuse to recognize sales and deeds for taxes of lands belonging to it, whether
Dominion Lands or others, and that, as a matter of policy and 2007 MBQB 293 (CanLII) convenience, it should be made a rule, that no such sales or deeds shall be recognized. If a different rule was hitherto obtained in the Department, as I understand is the case, it would seem to be but right that public notice should be given of the proposed change.
[767] Manitoba argues that letters expressing legal opinions are of no
evidentiary weight. As well, Manitoba submits that the effect of the Minister of
Justice’s conclusion was that patents would issue in the name of the original
grantee and any legal issues arising as a result of that would be dealt with in
Manitoba under provincial law.
[768] Moreover, in my view, this letter did not address the issue of constitutionality but rather of policy. It dealt with the practical question whether the patent to land ought to issue in the name of the original grantee or in the
name of the person who had obtained the beneficial interest after the tax sale.
The letter did point out that the Manitoba municipal legislation never dealt with the legal interest in the land and transferred to the purchaser only “such interest as the Crown may have given or parted with”.
[769] In any event, Manitoba submits that a full answer to the tax question is
found in Re Mathers (1891), 7 M. R. 434, a decision of the Manitoba Court of
Queen’s Bench en banc. This issue is addressed not only in Re Mathers, supra but in other cases which have clearly held that one party may hold the legal estate in land while another can hold a beneficial interest which is an asset separate from the legal estate.
[770] Manitoba agrees that part of the pith and substance analysis is not only to 2007 MBQB 293 (CanLII) determine the purpose of the legislation but also to consider its effect.
[771] Manitoba submits that the evidence of its witness Mr. Davidson provides valuable insight into the exercise of determining effect.
[772] As set out in the Agreed Trial Facts,214 genealogical information was obtained on 16 of the 17 individual plaintiffs. Of those 16, 4 were found to have no ancestors entitled to benefits under section 31. Of the remaining 12, information was located in respect of 23 section 31 transactions. One land titles file could not be located.
[773] Manitoba acknowledges that Mr. Davidson’s analysis of these transactions does not provide a statistically relevant sample. Still, his evidence provides,
Manitoba says, an interesting snapshot of the effect of the Manitoba legislation.
214 Exhibit 2
[774] Manitoba asserts that the statutory requirement for transfer of section 31 interests as set out in the legislation was amply demonstrated by Mr. Davidson’s evidence. Deeds properly executed and witnessed, parental consents, spousal consents and certification by judicial officers are all apparent on the face of the
Land Titles documents. Queen’s Bench orders and certifications confirming
payment of money into court were also located. Manitoba submits there is
nothing in the evidence to suggest that the registrar of land titles understood 2007 MBQB 293 (CanLII)
any Manitoba legislation as giving him the power to approve obviously illegal
transactions. Manitoba says that the evidence is entirely to the contrary,
showing a high degree of scrutiny before the approval of a Torrens title.
[775] As well, some decided cases provide insight into the effect of the
legislation.
[776] In Barber, supra, a Queen’s Bench order had been obtained in 1880
permitting the father to sell his child’s land for $500.00. The father sold the land
for a lesser amount with the balance in chattels. When an application was
brought for a certificate of title under The Real Property Act, the infant was
served and objected. The Queen’s Bench, en banc, decided the original transaction was invalid and stated that The Quieting Titles Act, 1885, was solely directed to irregularities.
[777] In Hardy, supra, to which I earlier referred, the defendant sought to set
aside a sale purportedly made under a Queen’s Bench order. The Queen’s Bench
en banc commented upon several deficiencies in the transaction and invalidated
it. It concluded that The Quieting Titles Act, 1885 which was Manitoba
legislation under consideration in that case dealt with technical matters but did
not in any way validate that which was “wholly illegal and void”.
[778] In Robinson v. Sutherland (1893), 9 M. R. 199 (Q.B.), the issue was
the meaning of The Half-Breed Lands Act, 1883. Bain J. narrowly construed
that Act holding in part that the transaction had to be voluntary on the part of 2007 MBQB 293 (CanLII) the section 31 recipient or it was voidable. He wrote, at p. 202:
… that the assignment to the defendant, and the power of attorney therein, were not binding on the infant when she came of age and were voidable at her option, and that she has avoided them….
[779] Manitoba submits that the effect of the impugned provincial legislation
was to create a rigorous regulatory regime for the conveyance of section 31 interests, which interests were completely alienable at common law.
[780] Thus, says Manitoba, the legislation impugned by the plaintiffs is constitutional. Its pith and substance was contract law. Its purpose was to supplement the common law by imposing a more formal and rigorous contract
process. None of the legislation validated illegal transactions. None removed
access to the courts. The legislation, it says, was in all respects constitutional
under subsection 92(13) and to the minor extent it dealt with court procedure,
under subsection 92(14).
[781] In impugning the Manitoba legislation, the plaintiffs also argued that the
legislative jurisdiction in respect of the land granted under section 31 of the Act
fell within the exclusive jurisdiction of Canada under subsection 91(1A) (formerly
subsection 91(1)) of the Constitution Act, 1867 and/or within subsection
91(24) of the Constitution Act, 1867.
[782] Subsection 91(1A) gives Parliament legislative authority over “the public debt and property”. 2007 MBQB 293 (CanLII)
[783] Manitoba conceded that this provision enabled Canada to enact laws in respect of federally owned property and exempted federally owned property from provincial laws that might otherwise be applicable, such as registration and execution laws.
[784] Manitoba acknowledged that the section 31 lands in this case remained legally vested in Her Majesty the Queen in right of Canada until patent issued and only then would it no longer be subject to Parliament’s jurisdiction.
[785] Manitoba argued, however, that legal and beneficial interests in land can be held by different persons. Manitoba admitted it had no jurisdiction to legislate in respect of Canada’s legal title but said there is an abundance of precedent recognizing provincial jurisdiction over beneficial interests.
[786] Manitoba again relies on Re Mathers which it argues is a case directly on
point as it dealt with provincial jurisdiction in respect of beneficial interests in
section 31 lands. The legal question before the court was whether Manitoba had the authority to tax section 31 grants before the actual patents had issued; i.e., was land legally vested in Her Majesty the Queen in right of Canada outside of the constitutional competence of Manitoba. The court ruled that Manitoba’s
Municipal Act, which permitted municipalities to tax beneficial interests in certain situations, was constitutional. Bain J., for the court, wrote, at p. 442:
… Ross was entitled to share in the grant of the 1,400,000 acres, and, when the particular portion of the grant that was to go to him in 2007 MBQB 293 (CanLII) satisfaction of his claim was finally ascertained and determined, his right to that particular portion became complete, and nothing remained but for the Crown to issue the patent to him for the specific parcel of land. He was, therefore, it seems to me, precisely in the same position he would have been in had he agreed to purchase this piece of land from the Crown, and had paid the purchase money therefor, and had become entitled to the patent; and, while the legal estate remained vested in the Crown, the beneficial interest in the land belonged to and was vested in him.
[787] Further, on p. 442, Bain J. wrote:
… I am of opinion that the beneficial interest that Ross had in the lands allotted to him was a property or interest that it was competent for the Provincial Legislature to make liable to taxation, if it saw fit to do so.
[788] Other cases have held similarly to Re Mathers. In Calgary &
Edmonton Land Co. v. Attorney-General of Alberta (1911), 45 Can. S.C.R.
170, Davies J. wrote, at pp. 179-80:
The legal title, it is true, still remained in the Crown until the patent passed, but the equitable title had become vested in the appellants to whom it had been transferred by the railway company. The interest of the Crown whatever it might have been could not be taxed, but the beneficial interest of the appellants certainly was not exempted under or by virtue of the section of the “British North America Act, 1867,” under review. … The whole beneficial interest having passed to the company and the bare legal estate remaining in the Crown the land no longer can be said to be land belonging to Canada within the meaning of the section.
[789] In Smith v. Rural Municipality of Vermilion Hills (1914), 49 Can.
S.C.R. 563, Brodeur J., in reference to Calgary & Edmonton Land Co., supra,
wrote, at p. 576:
That case determined that the provincial legislatures had the right and the power to authorize the taxation of beneficial or equitable interests in lands wherein the Crown in the right of the Dominion of Canada holds some interest and the legal estate.
That decision was affirmed by the Privy Council, [1916] 2 A.C. 569. 2007 MBQB 293 (CanLII) [790] As well, in Attorney-General of British Columbia v.
Attorney-General of Canada, [1889] 14 A.C. 295, a decision of the Privy
Council, the issue was whether the Dominion Government or British Columbia
had jurisdiction over the mineral rights on railway belt lands owned by Canada.
The Privy Council held that British Columbia had a beneficial interest in the mineral rights even though legal title rested with Canada and thus had constitutional jurisdiction to deal with those rights.
[791] These cases, Manitoba submits, establish that when the federal Crown
holds the legal estate or interest in land but another party holds the beneficial
interest, the two interests are treated separately for constitutional purposes.
[792] Manitoba submits, therefore, that to the extent its legislation dealt with beneficial interests in land, there is binding precedent recognizing provincial
constitutional authority.
[793] The plaintiffs attempted to distinguish Re Mathers arguing that
jurisdiction to legislate in respect of the beneficial interest could not rest with
Manitoba since that would mean that Canada thereafter had no authority to
organize a new allotment, indeed, no authority to proceed with patenting of the
land.
[794] Manitoba submits this argument is incorrect. It says that to the extent the
beneficial interest crystallized after allotment process “numbers one and two”, 2007 MBQB 293 (CanLII)
Manitoba had legislative jurisdiction over those interests. The jurisdiction was
always there; what disappeared on cancellation of the allotment was the
beneficial interest. Having jurisdiction over beneficial interests in no way
interferes with the ability of the legal title holder (Canada) to issue patents. It
was not constitutional jurisdiction over the legal title which passed to Manitoba
pre-patent; rather, it was constitutional jurisdiction over the beneficial interest and much binding legal precedent recognizes such jurisdiction.
[795] The plaintiffs also argued that Manitoba’s legislation was unconstitutional
by reason of subsection 91(24) of the Constitution Act, 1867. Manitoba
asserts that subsection 91(24), as a head of power, is no different than any
other head of power. A pith and substance analysis has to be undertaken to
determine the core meaning and effect of the legislation. Manitoba says the
impugned legislation which is directed at “half-breeds” is not sufficient to
determine its pith and substance. As the Supreme Court of Canada stated in
Kitkatla Band, supra (at p. 177, para. 66), “The mere mention of the word
“aboriginal” in a statutory provision does not render it ultra vires the province.”
[796] While not accepting the proposition that the lands in question were within
federal jurisdiction by virtue of subsection 91(24), Manitoba submits that its
legislation was nonetheless constitutional as it did not impact or encroach upon
the core of aboriginality. Its legislation was not directed to the occupation of the
land or to the activities that could be done on it. Nor did it impact on culture. 2007 MBQB 293 (CanLII)
[797] Manitoba argues that it was faced with a practical reality. Section 31
created a special benefit, a land grant, to one class of people. Under the
common law, the people in that class were entitled to dispose of their interest in
the benefit if they so desired. The evidence is that sales of interests in section
31 land were occurring demonstrating a willingness on the part of persons entitled thereunder to dispose of their interest. Rather than leave the matter
solely to be governed under the common law, Manitoba passed legislation which
dealt with the formalities of contract law and the legal issues as they arose
pertaining thereto. Manitoba asserts that its legislation was wholly in respect of
contract law and thus did not encroach on federal jurisdiction.
[798] Moreover, I have previously decided in these reasons that the Métis were
not Indians in respect of section 31 of the Act. That finding was based upon the
Supreme Court’s decision in Blais and the evidence in this case which
overwhelmingly establishes that the Métis were not Indians at the time of
passage of nor for the purposes of the Act, including section 31.
[799] While Blais considered whether the Métis were Indians under section 13
of the Natural Resources Transfer Agreement of 1930, and the question now
under discussion is whether they are Indians under subsection 91(24) of the
Constitution Act, 1867, I conclude for the reasons previously stated that the
Métis were not Indians within the meaning of subsection 91(24) of the 2007 MBQB 293 (CanLII)
Constitution Act, 1867 and the land in question was not land reserved for
Indians within the meaning of that subsection.
[800] The plaintiffs have also argued that the Manitoba legislation is unconstitutional as it amounted to an amendment or alteration of the Act contrary to section 6 of the Constitution Act, 1871.
[801] Manitoba acknowledges it had no authority to legislate in a manner inconsistent with the provisions of the Act, but says it did not do so. It reiterates that the impugned legislation (other than the taxation legislation) was in pith and substance contract law and did not deal with the legal estate or interest in the land, or as regards two of the impugned Acts related to the administration of justice.
[802] And, as for any taxation legislation, none of which was identified or argued with specificity by the plaintiffs, such taxation was in respect of one’s beneficial interest, not the legal estate or interest, in land.
[803] Thus, Manitoba says that its legislation is intra vires and hence constitutional.
[804] I agree with the submissions advanced by Manitoba as regards the
Manitoba legislation impugned by the plaintiffs, including any legislation, though not specifically identified by the plaintiffs, which permitted or imposed taxation in respect of interests in section 31 land prior to grant. 2007 MBQB 293 (CanLII) [805] In my opinion, the impugned legislation which is identified by the plaintiffs was in each case intra vires the Manitoba Legislature.
[806] Such legislation fell clearly under provincial jurisdiction, either section
92(13), property and civil rights, or as regards two Acts, The Decrees and
Orders Act, 1884 and The Payment of Securities Act, 1885, under subsection 92(14), the administration of justice.
[807] As regards the attack related to taxation enactments, the law does differentiate between the legal estate in land and the beneficial interest in land.
In this case, there is no dispute that Canada held or owned the legal estate in the section 31 land until patents were issued. But the beneficial interest in such land was an asset of the person who is entitled ultimately to receive the patent.
Such person was a resident of Manitoba and that asset, being the beneficial interest, was subject to taxation by Manitoba. The plaintiffs have not established, let alone argued, that any such enactment imposed taxation on the
land prior to patent. Rather, the taxation was imposed upon one’s interest in the
land.
[808] Lastly, the impugned legislation, in pith and substance, did not amend or
alter the Act. What it did was create or attempt to create a more clearly and
strictly regulated regime than was provided by the common law of contract for
the sale or alienation, by those Manitoba residents who wished to do so, of their interests in section 31 lands. 2007 MBQB 293 (CanLII)
[809] There is not, in my view, any basis for a finding, let alone a declaration, of
unconstitutionality respecting the impugned Manitoba legislation.
IMPUGNED FEDERAL ENACTMENTS
[810] The plaintiffs, in paragraphs 49, 51 and 52 of their statement of claim,
allege that certain federal enactments are unconstitutional.
[811] As regards their claim under section 31 of the Act, the plaintiffs, in
paragraph 49, say that such enactments are as follows:
▪ Order in Council April 25, 1871;
▪ Order in Council May 26, 1871;
▪ Dominion Lands Act, S.C. 1872, c. 23, section 108;
▪ Order in Council April 15, 1872;
▪ Order in Council April 3, 1873;
▪ Order in Council September 6, 1873;
▪ An Act to remove doubts as to the construction of section 31 of the
Act 33 Victoria, chapter 3, and to amend section 108 of the
Dominion Lands Act, S.C. 1873, c. 38;
▪ An Act respecting the appropriation of certain Dominion Lands in
Manitoba, S.C. 1874, c. 20;
▪ Order in Council February 7, 1874;
▪ Order in Council May 21, 1874; 2007 MBQB 293 (CanLII)
▪ Order in Council September 7, 1876;
▪ Order in Council July 4, 1878;
▪ An Act to explain and amend the Act respecting the appropriation
of certain Dominion Lands in Manitoba, S.C. 1879, c. 32;
▪ Order in Council April 20, 1885;
▪ An Act respecting the Revised Statutes of Canada, R.S.C. 1886,
c. 4.
[812] As regards their claim under section 32 of the Act, the plaintiffs, in paragraph 51, say that such enactments are as follows:
▪ Order in Council April 25, 1871;
▪ Order in Council May 26, 1871;
▪ Dominion Lands Act, S.C. 1872, c. 23, section 108;
▪ An Act respecting the appropriation of certain Dominion Lands in
Manitoba, S.C. 1874, c. 20;
▪ An Act to amend “An Act respecting the appropriation of certain
Lands in Manitoba”, S.C. 1875, c. 52;
▪ An Act respecting Conflicting Claims to Lands of Occupants in
Manitoba, S.C. 1875, c. 53;
▪ Order in Council April 20, 1876;
▪ Order in Council December 19, 1876;
▪ Order in Council April 12, 1880; 2007 MBQB 293 (CanLII)
▪ An Act for the final settlement of claims to lands in Manitoba by
occupancy, under the Act thirty-third Victoria, chapter three, S.C.
1880, c. 7;
▪ Order in Council February 25, 1881;
▪ An Act to extend the limitation of time under the Act forty-third
Victoria, chapter seven, intituled “An Act for the final settlement of
claims to lands in Manitoba by occupancy, under the Act thirty-third
Victoria, chapter three”, S.C. 1884, c. 26 (short title: The Manitoba
Land Claims Act, 1884);
▪ An Act respecting the Revised Statutes of Canada, R.S.C. 1886,
c. 4.
[813] As regards their claim to the rights of cutting hay and rights of common under subsection 32(5) of the Act, the plaintiffs, in paragraph 52, say that such enactments are as follows:
▪ Order in Council April 25, 1871;
▪ Order in Council May 26, 1871;
▪ Orders in Council April 3 and April 17, 1874.
[814] And, in paragraph 53 of the statement of claim, the plaintiffs assert the
following:
53. The Plaintiffs say that, to the extent that the above enactments altered the obligations set out in sections 31 and 32 of the Manitoba Act, the enactments were, by reason of section 6 of the British North America Act, 1871 (34 and 35 Vict. C. 28), beyond the constitutional competence
of Parliament and the Legislature and were therefore invalid and of no 2007 MBQB 293 (CanLII) force and effect.
[815] I turn then to deal with each of the impugned federal enactments.
(1) those which relate to the plaintiffs’ claim to entitlement under section 31 of the Act:
Order in Council April 25, 1871
[816] The plaintiffs assert that this Order in Council was the single most
important regulation governing the implementation of section 31. They argue
that it was contrary to section 31 in that it provided:
(a) that all “half-breed” residents, including all heads of families, would
share in the distribution of the 1,400,000 acres;
(b) that the individual allotments from the lands designated by the
Lieutenant Governor should be distributed by lottery;
The plaintiffs say that the section 31 lands were to be granted in
family blocks.
(c) that there would be no conditions of settlement;
The plaintiffs say that this had the effect of making the allotments
more attractive to speculators who would not be required to
improve or settle upon the lots prior to resale, and enabled
transfers of ownership without the land having been first settled,
contrary to section 31. 2007 MBQB 293 (CanLII) (d) In addition, the plaintiffs complain that it failed to provide any
restriction on alienation of the allotments prior to grant.
The plaintiffs assert that this failure led to widespread sales and
assignments of the allotments of land prior to grant and frustrated
the provision of section 31 that the land “shall be granted to the
said children respectively”. They assert that this is to be contrasted
with the Order in Council’s prohibition of alienation of preemption
or homestead rights prior to grant.
Order in Council May 26, 1871
[817] The plaintiffs assert that this Order in Council “invited” settlement by
newcomers in advance of survey and assured such persons security of title.
They argue it was unconstitutional in that it purported to protect new settlers in the enjoyment of these lands but did not reserve from its operations lands needed to fulfill the provisions of section 31 or section 32. The plaintiffs say it
therefore had the effect of promoting encroachments by new settlers on lands promised under sections 31 and 32.
Dominion Lands Act, S.C. 1872, c. 23, section 108
[818] The plaintiffs argue that section 108 of this Act gave statutory force to the
Orders in Council dated April 25, 1871, and May 26, 1871, and that to the extent it purported to do so, was unconstitutional. 2007 MBQB 293 (CanLII) Order in Council April 15, 1872
[819] The plaintiffs assert that this Order in Council was unconstitutional in that:
(a) it stated that the “surveys in Manitoba are sufficiently far advanced
to enable a selection”, whereas selection had already commenced
and was never said to be subject to the completion of, or the state
of advancement of surveys;
(b) it stated that the Surveyor General recommended the selection of
land be made by townships, whereas the selection was to be at the
discretion of the Lieutenant Governor;
(c) it “instructs” the Lieutenant Governor to select townships rather
than parts of townships, whereas section 31 directs him to select
“such lots or tracts in such parts of the Province as he may deem
expedient”; and
(d) it purports to restrict to a “due proportion” the woodlands of the
Province that could be included in the 1,400,000 acres.
[820] The plaintiffs thus say that this Order in Council had the effect of
removing the discretion of the Lieutenant Governor to select the 1,400,000 acres
and that it was inconsistent with section 31 in respect of Order in Council
April 25, 1871, and actions taken by Archibald thereunder. 2007 MBQB 293 (CanLII) Order in Council April 3, 1873
[821] The plaintiffs assert this Order in Council was ultra vires in that it
purported to vary the provisions of Order in Council April 25, 1871, contrary to
the Dominion Lands Act, section 108. They say it relied upon “a strict
interpretation of clause 31” and thereby was contrary to the Nowegijick principle. As well, it had the effect of throwing into disarray all proceedings taken to that date under section 31, thereby causing further delay in distributing the land.
Order in Council September 6, 1873
[822] The plaintiffs allege that it was unconstitutional in that it withdrew the outer two miles from the land set apart for the half-breeds, thus cancelling the earlier selection of those lands that were in the outer two miles, and replacing them with less valuable lands.
An Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, chapter 3, and to amend section 108 of the Dominion Lands Act, S.C. 1873, c. 38
[823] This Act confirmed Order in Council April 3, 1873. The plaintiffs say it
provided an unconstitutional definition of “children” in that it excluded those children who were themselves “heads of families”. It, therefore, had the effect of excluding from entitlement all married children, including those with children but no land of their own, and who continued to live with the head of the family. 2007 MBQB 293 (CanLII)
As well, the plaintiffs allege the statute was unconstitutional in that it invalidated proceedings properly taken under Order in Council April 25, 1871, including the selection of townships which had been made by the Lieutenant Governor in 1871 and 1872, thereby throwing the entire process into disarray.
An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20
[824] The plaintiffs say this Act purported to replace with scrip, rights to land denied by S.C. c. 38. They say this was unconstitutional because children wrongly excluded as “heads of families” by S.C. c. 38 had a right to real property. The Act provided that “half-breed heads of families” included “half- breed mothers” as well as “half-breed fathers”, regardless of whether the mothers were “heads of families” themselves.
Order in Council February 7, 1874
[825] The plaintiffs assert this Order in Council was unconstitutional in that it cancelled the allotment for the parish of St. Boniface as well as the drawing of lots in that allotment, and ordered a new allotment and distribution.
Order in Council May 21, 1874
[826] The plaintiffs assert this Order in Council was unconstitutional in that it 2007 MBQB 293 (CanLII) cancelled the allotment for the parish of Oak Point and Lake Manitoba, and ordered a new allotment.
Order in Council September 7, 1876
[827] The plaintiffs assert this Order in Council was contrary to section 31 of the
Act in that it reduced the estimate of the number of children entitled to share in
the distribution of the 1,400,000 acres from the figure based on the census of
December 1870, which yielded 190 acres per child, to a smaller number, which
yielded a distribution of 240 acres precisely to each child. This smaller number,
the plaintiffs say, was an unreasonable estimate and contrary to the facts known
to the Government of Canada at the time. As a result of the new estimate, the
Order in Council cancelled the steps taken by Archibald and Alexander Morris
(“Morris”) to select land and allot the same among the children referred to in
section 31. The plaintiffs say the cancellation of the allotment constituted an
expropriation of an interest to the allottees. As well, they allege that this Order
in Council was contrary to the Dominion Lands Act which had given legislative effect to the earlier orders in council.
Order in Council July 4, 1878
[828] The plaintiffs say this Order in Council was contrary to section 31 in that it rescinded section 6 of Order in Council April 25, 1871, which stated that minors would not receive their patents prior to the age of 18 years and, as well, rescinded section 7 of that Order in Council which provided that when a claimant 2007 MBQB 293 (CanLII) died before being entitled to receive a patent by arriving at the age of 18 years, recorded claims would descend according to provincial laws. They assert it had the effect of facilitating the sale of children’s allotments regardless of the age of the allottee.
An Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879, c. 32
[829] The plaintiffs assert this Act was unconstitutional in that it further degraded rights to land under section 31 by replacing them with scrip, a form of personal property. They say this was invalid to the extent that it dealt with those children who had been improperly disqualified as “heads of families”.
Order in Council April 20, 1885
[830] The plaintiffs say this Order in Council is contrary to section 31 in that it substituted scrip for grants of land to half-breed children who had proved that they were entitled to a share of the lands promised by section 31 of the Act. As well, it was contrary to section 31 in that it provided that any claims to a share in
the 1,400,000 acres that were not filed by May 1, 1886, would cease and
determine.
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4
[831] The plaintiffs say this Act purported to repeal numerous sections of the
Act including sections 31 and 32 contrary to section 6 of the Constitution Act,
1871. 2007 MBQB 293 (CanLII)
(2) those which relate to the plaintiffs’ claim to entitlement under section 32 of the Act:
Order in Council April 25, 1871
[832] The plaintiffs assert that this Order in Council provided rules governing
occupation of Crown lands by newcomers without reserving lands described in
section 32 of the Act.
Order in Council May 26, 1871
[833] The plaintiffs assert that this Order in Council was unconstitutional in that
it purported to protect new settlers in the enjoyment of lands but did not reserve
from its operations lands required to fulfill the provisions of section 32 and it had
the effect of promoting encroachments by new settlers on lands promised by
that section.
Dominion Lands Act, S.C. 1872, c. 23, section 108
[834] The plaintiffs assert that this statute was unconstitutional to the extent that it purported to confirm Orders in Council April 25, 1871, and May 26, 1871.
An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20
[835] The plaintiffs assert that this Act is unconstitutional in that it dealt with
lands protected under subsections 32(3) and (4) and treated them as a single 2007 MBQB 293 (CanLII) class. It thereby purported to alter subsection 32(4) by restricting the rights thereunder to claimants who became required to pass a more stringent test than
“peaceable possession”. It had the effect of excluding persons who had been in peaceable possession of lands in the province at the time of the transfer, but without having “undisturbed occupancy” as defined by a level of improvement satisfactory to the land officers in the Dominion Lands Branch. As well, it purported to amend the date for entitlement in subsection 32(4) from July 15,
1870 to March 8, 1869.
An Act to amend “An Act respecting the appropriation of certain Lands in Manitoba”, S.C. 1875, c. 52
[836] The plaintiffs assert that this was unconstitutional in that it amended the date of March 8, 1869 for those claiming under subsection 32(3) to July 15,
1870. They say the effect of the statute was to require actual peaceable possession on July 15, a time when many Métis were away on a buffalo hunt.
An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c. 53
[837] The plaintiffs state that this Act replaced 36 Vict. c. 6 which had provided
reasonable means for adjusting conflicting claims. This new enactment was
unconstitutional, the plaintiffs say, in that it empowered the commission to rule
in favour of a settler claiming pursuant to Order in Council May 26, 1871, over
someone claiming under section 32 of the Act. As well, it gave the sole
discretion to the commissioners to be guided in their proceedings and report by 2007 MBQB 293 (CanLII) the “justice and equity of the case without regard to legal forms or to the strict letter of the law or legal rules of evidence” and it did not permit claims where the dispute was between individuals and the Crown; for example, when a claim under section 32 was rejected by the land officer and hence not referred to
Ottawa for a formal ruling.
Order in Council April 20, 1876
[838] The plaintiffs assert this Order in Council is contrary to section 32 in that it divided claims described in a memorandum dated January 29, 1876 from the
Minister of the Interior into five categories, two of which pertained to lands taken up prior to July 15, 1870.
[839] They argue the Order in Council described the first category as lands taken up prior to six months before July 15, 1870, rather than on the transfer date as required by subsection 32(4), and it incorrectly, and contrary to the known facts, said that the usage of the country recognized by the Council of
Assiniboia was for a person to employ a surveyor to survey and lay out the land which was rarely the case. While it acknowledged that old settlers could be protected even when few or no improvements had been made, so long as the ownership of the land was recognized in the community (as constituting peaceable possession pursuant to subsection 32(4)), it restricted this recognition to surveyed lands taken up prior to six months before the transfer date.
[840] The second category described lands claimed to have been taken up, 2007 MBQB 293 (CanLII) which had not been surveyed or “occupied” but which had been marked out by stakes prior to July 15, 1870, and stated that these were not entitled to consideration, even though they were alleged to have been held in “peaceable possession”.
[841] The other three categories all dealt with lands taken up and settled upon after July 15, and provided that such lands would be granted to the new settlers so long as they were taken up prior to the lands around them being reserved for distribution pursuant to section 31. To the extent that this excluded lands from otherwise reserved townships selected for “Half-Breed Settlement”, it was contrary to section 31.
Order in Council December 19, 1876
[842] The plaintiffs assert this Order in Council was unconstitutional in that contrary to section 33 of the Act, it provided that the Governor in Council did not have to approve grants of land under section 32. As well, it provided for
unconstitutional practice of permitting local officials of the Dominion Lands
Branch of the Department of the Interior to refuse claims, and to refer to the
Department of Justice only those claims which appeared to them to be valid.
The practice of the said officials was to recognize only claims to lands where there were “valuable” improvements as of July 15, 1870.
Order in Council April 12, 1880
[843] This Order in Council relates to the claims staked just before July 15, 2007 MBQB 293 (CanLII)
1870. No assertion was advanced by the plaintiffs in respect of this Order in
Council.
An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three, S.C. 1880, c. 7
[844] This Act provided that claims under subsections 32(3) and (4) would cease if no application for patent had been made by May 1, 1882, or six months thereafter if claimants had not established their claims to the satisfaction of the
Minister. The plaintiffs assert this was contrary to subsection 32(3) which gave the right to convert title by occupancy to freehold “if required by the owner” without limitation by time, and say that those persons who had a right of preemption pursuant to subsection 32(4) could not have it removed by statute.
Order in Council February 25, 1881
[845] The plaintiffs assert this Order in Council is contrary to section 32 in that it purports to require certain claimants of staked claims to purchase lands as if they
were homesteaders, rather than providing them with a free grant, under
subsection 32(4) in accordance with the assurances made by Cartier.
An Act to extend the limitation of time under the Act forty-third Victoria, chapter seven, intituled “An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three”, S.C. 1884, c. 26 (short title: The Manitoba Land Claims Act, 1884)
[846] The plaintiffs assert this Act, which extended the time for bringing claims
to May 1, 1886, was unconstitutional for the same reasons referred to respecting 2007 MBQB 293 (CanLII)
S.C. 1880, c. 7; i.e., that the enjoyment of rights by the claimants which were
not time limited under the Act could not be so limited or lost as a result of this
Act.
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4
[847] The plaintiffs say this Act, which purported to repeal numerous sections of
the Act, including sections 31 and 32, was contrary to section 6 of the
Constitution Act, 1871.
(3) those which relate to the plaintiffs’ claim to the rights of cutting hay and rights of common under subsection 32(5) of the Act:
▪ Orders in Council April 25, 1871, and May 26, 1871
▪ Orders in Council April 3, 1874, and April 17, 1874
The plaintiffs assert these Orders in Council are unconstitutional in
that they gave priority to new settlers who had entered upon and
improved lands subject to rights of common and of cutting hay,
contrary to subsection 32(5).
As well, Order in Council April 17, 1874, permitted compensation to
the holders of subsection 32(5) rights to be by way of a grant of
scrip contrary to that section which required that such rights be
subject to fair and equitable commutation by grants of land. 2007 MBQB 293 (CanLII) [848] In response to the plaintiffs’ allegations concerning the impugned federal
enactments, Canada says that the essence of the plaintiffs’ attack as to the vires
of such enactments is that they altered the provisions of the Act in contravention
of section 6 of the Constitution Act, 1871. That section reads:
Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament insofar as it relates to the Province of Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly and to make laws respecting elections in the said Province.
[849] Canada says the Act received royal assent May 12, 1870, and was given constitutional force on June 29, 1871 by the Imperial Parliament. Section 5 of the Constitution Act, 1871 deemed the Act “to have been valid and effectual for all purposes whatsoever from the date at which … [it] received the assent, in the Queen’s name, of the Governor General of the said Dominion of Canada.”215
215 Exhibit 1-0636
[850] Canada argues that the Act by its very wording contemplated and/or
required regulations to be enacted from time to time pursuant to sections 31 and
32 of the Act in order to settle and effectively implement:
(a) the scheme by which lands would be granted to the Métis children
under section 31;
(b) the terms and conditions for the right of preemption under 2007 MBQB 293 (CanLII) subsection 32(4); and
(c) the provisions for ascertaining and adjusting the rights of common
and of cutting hay under subsection 32(5).
[851] Canada argues that while a pith and substance analysis is not required in
respect of the impugned federal enactments in this case, the approach used by
courts to determine purpose and effect in cases where a pith and substance
analysis is required, is also the correct approach to be taken here.
[852] In that regard, purpose and effect must be derived from the wording of
the enactment itself. In Hills v. Canada (Attorney General), [1988] 1 S.C.R.
513, [1988] S.C.J. No. 22 (QL), L’Heureux-Dubé J., for the majority, wrote, at
pp. 541-42:
As Lord Watson noted in Salomon v. Salomon & Co., [1897] A.C. 22, at p. 38, the “ “Intention of the Legislature” is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be
legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.”
[853] Canada asserts that so long as its enactments did not eradicate rights given by sections 31 and 32, they must be taken as coming within the broad
discretion afforded by those sections, whether by statute or order in council, and no challenge to their vires can be sustained.
[854] But for two enactments, Canada asserts that the purpose and effect of 2007 MBQB 293 (CanLII) each of the challenged enactments was to implement rather than alter sections
31 and 32. The two enactments in question are:
(1) Order in Council April 25, 1871216
Canada acknowledges that this Order in Council was ultra vires the
Act but only to the extent that it allowed heads of family to
participate in the grant of the 1,400,000 acres.
That error was corrected by Order in Council April 3, 1873,217 and
for greater certainty, by S.C. 1873, c. 38 (An Act to remove
doubts as to the construction of section 31 of the Act 33
Victoria, chapter 3, and to amend section 108 of the
Dominion Lands Act).218 This latter statute was deemed
necessary because the Dominion Lands Act, S.C. 1872, c. 23219
216 Exhibit 1-0608 217 Exhibit 1-0859 218 Exhibit 1-0875 219 Exhibit 1-0718
had, by section 108, confirmed “all proceedings properly taken
under Order in Council dated April 25, 1871”.
(2) S.C. 1874, c. 20 (An Act respecting the appropriation of
certain Dominion Lands in Manitoba)220
Canada agrees this statute was ultra vires the Act but only to the
extent that it required claimants under subsection 32(4) to show 2007 MBQB 293 (CanLII) they were in possession of their lands by March 8, 1869 instead of
July 15, 1870.
That error was corrected by S.C. 1875, c. 52 (An Act to amend
“An Act respecting the appropriation of certain Lands in
Manitoba”),221 which reinstated July 15, 1870 as the operative
date. The plaintiffs do not impugn this statute insofar as it
changed the date for claims under subsection 32(3) to July 15,
1870 from March 8, 1869.
[855] While acknowledging that both of these enactments were ultra vires the
Act, Canada asserts that both inconsistencies were subsequently remedied, as indicated, and that declaratory relief as sought by the plaintiffs is therefore inappropriate on the ground of mootness.
220 Exhibit 1-1000 221 Exhibit 1-1052
[856] As regards the plaintiffs’ challenge of several of the enactments on the
basis that they provided scrip to eligible persons when the Act required land,
Canada asserts that that complaint is without foundation. It refers to section 33
of the Act which provides that:
The Governor General in Council shall from time to time settle and appoint the mode and form of grants of land from the Crown, and any order in council for that purpose when published in the Canada Gazette, shall have the same force and effect as if it were a portion of this Act.
Canada submits that prospectively section 33 gave any regulations made in that 2007 MBQB 293 (CanLII)
regard the same force and effect as if they had been part of the Act to begin
with. As well, Canada argues that scrip was simply a mode and/or form of
granting Crown land to individuals; hence, the question of inconsistency with the
Act does not arise.
[857] As regards the plaintiffs’ attack upon An Act respecting the Revised
Statutes of Canada, R.S.C. 1886, c. 4,222 which by Schedule A purported to
repeal sections 31 and 32 of the Act, Canada refers to subsection 5(2) of the
Act, which provided that the enactments mentioned in Schedule A were only
repealed “so far as the same are within the legislative authority of the Parliament
of Canada”. Thus, Canada says, there is no inconsistency between the purpose
and effect of this statute and section 6 of the Constitution Act, 1871.
[858] Canada asserts that the clear intent of sections 31 and 32 of the Act was
to provide a onetime benefit.
222 Exhibit 1-1711
[859] Of necessity, there had to be a time limit associated with that especially
as regards section 31. The only way there could be an equitable division of
1,400,000 acres would be to implement a cut-off date so as to determine the
number of people who would share equally in the 1,400,000 acres. Canada argues that once that had been done and the requisite number of patents issued, there was no need for the section anymore. Its repeal was not inconsistent with the Act. 2007 MBQB 293 (CanLII)
[860] As regards section 32 Canada says it was no longer required once patents had issued. Almost all section 32 grants were issued by 1886.
[861] Alternatively, Canada asserts that the repeal of sections 31 and 32 is, in the circumstances, only of academic interest and not a basis for a declaration.
[862] With the two exceptions noted, Canada submits that none of the impugned instruments were ultra vires the Act. In fact, all but two of them,
Canada asserts, fell squarely within the broad discretion given to Parliament and
the Governor General in Council in carrying out the provisions of sections 31 and
32 of the Act.
[863] The Act is a constitutional document which provided for the creation of a
new province, Manitoba. The Act has various components. Sections 30 to 33 of
the Act pertained to the lands of the new Province.
[864] Section 30 provided, with some exceptions, for the administration of the ungranted and wastelands in the Province by the Government of Canada.
[865] Section 31 provided for the 1,400,000-acre grant and for the enactment of regulations from time to time by the Governor General in Council for the selection and allotment of the lands and for the granting of them “in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.” 2007 MBQB 293 (CanLII)
[866] Section 32 provided “for the quieting of titles, and assuring to the settlers in the Province, the peaceable possession of the lands now held by them.”
[867] As regards those persons who enjoyed peaceable possession of land in those parts of the Province where Indian Title had not been extinguished and hence did not hold the lands by way of title from or with the sanction of the HBC, subsection 32(4) gave them a right of pre-emption to such land, but “on such terms and conditions as may be determined by the Governor in Council.”
[868] As well, under subsection 32(5), the Governor General in Council was specifically empowered to make regulations which would fairly and equitably ascertain and adjust the rights of common and hay rights enjoyed by the settlers and commute the same by grants of land from the Crown.
[869] And section 33 empowered the Governor General in Council to settle and appoint from time to time the mode and form of grants of land from the Crown.
It also provided that any Order in Council for that purpose would have the same
force and effect as if it were a portion of the Act.
[870] The Act is clear. It provides for the section 31 grant and for the quieting
of titles under section 32. Clearly, the mechanics necessary to accomplish
Parliament’s mandate could not be provided for in the Act. This would have to
follow either by statute or by regulation, particularly in the circumstances as
existed, that is, the creation of the new province and all that that would entail. 2007 MBQB 293 (CanLII)
[871] Parliament recognized this. Considerable discretion was contemplated and specifically provided for in the Act respecting the lands of the Province. This
was endorsed by the Imperial Parliament when it gave the Act constitutional
force by the enactment on June 29, 1871, of the Constitution Act, 1871.
[872] The plain language of the Act places this discretion in the hands of the
Governor General in Council.
[873] The plaintiffs’ attack on the impugned enactments is, in my view, founded
upon assertions that are not within the Act or that do not apply here, or fail to
recognize the scope of the discretion afforded by Parliament to the Governor
General in Council.
[874] Some brief examples are as follows:
▪ The plaintiffs say that Order in Council April 25, 1871, was contrary
to section 31 in that it provided that individual allotments from the
lands designated by the Lieutenant Governor should be distributed
by lottery, whereas they assert the section 31 lands were to be
granted in family blocks. As I have already concluded, there was
no treaty or agreement here, simply an Act of Parliament. And
there is nothing in the Act or upon which a fair reading of the Act
would enable one to say that the section 31 lands were to be
granted in family blocks. Rather, this provision in the Order in 2007 MBQB 293 (CanLII)
Council is part of and consistent with the discretion given to the
Governor General in Council.
! The plaintiffs assert as well with respect to Order in Council
April 25, 1871, that it provided there would be no conditions of
settlement. This too was within the discretion afforded by section
31 to the Governor General in Council. While Cartier’s statement in
Parliament in the debates leading to passage of the Act can, in my
view, do nothing more than give some insight into his thinking, it is
clear from what he said that the reasons which he espoused at
least evidenced some thought and gave some reasoned explanation
for his view that conditions ought not to be attached which, but for
the fact that they were his comments alone, are consistent with a
reasoned and reasonable exercise of discretion on the part of the
Government.
! The plaintiffs assert that Order in Council April 3, 1873, was ultra
vires as it relied upon a strict interpretation of section 31 and
thereby was contrary to the Nowegijick principle. As I have
already concluded, the Nowegijick principle is not applicable in
the circumstances of this case.
! The plaintiffs assert that Orders in Council February 7, 1874,
pertaining to the Parish of Saint Boniface and Order in Council 2007 MBQB 293 (CanLII)
May 21, 1874, pertaining to the Parish of Oakpoint and Lake
Manitoba were unconstitutional in that they respectively cancelled
the allotment for those parishes and ordered a new allotment and
distribution. But the evidence was this occurred by reason of
errors in survey and was the result of Canada, in its discretion,
wanting to have these errors corrected.
! The plaintiffs assert that Order in Council September 7, 1876, was
contrary to section 31 in that it reduced the estimate of the number
of children entitled to share in the distribution of the land grant
from the figure based on the census of December 1870, which
yielded 190 acres per child, to a smaller number, which yielded a
distribution of 240 acres to each child. There is no question that
the decision turned out to be significantly in error. But the exercise
of one’s discretion allows for error so long as there is no evidence
of bad faith, sharp conduct or the like. There is no such evidence
in this case. Donald Codd’s explanation for his decision is thorough
and reasoned, albeit significantly wrong.
! The plaintiffs attack both legislation and Orders in Council that
substituted scrip for grants of land. As regards section 31, the
scrip was given as a result of the error in the number of eligible
claimants and the resulting size of the grant, the result of which
was that some 963 children did not receive a part of the 1,400,000 2007 MBQB 293 (CanLII)
acres. The decision to grant scrip in lieu of land was a judgment
call made by Canada to attempt to remedy the result of that error
given that the full grant, and then some, had been exhausted. As
regards the other instances of the granting of scrip in lieu of land,
these too were the result of discretionary decisions made by
Canada without any evidence of bad faith or sharp practice and, in
my view, were authorized under section 33 of the Act.
[875] With the two exceptions acknowledged by Canada, it is my view that none of the impugned federal enactments were contrary to sections 31 and 32 of the
Act. Rather, they were passed as contemplated by the legislation for the purpose of administering and implementing that which sections 31 and 32 provided.
THE DOCTRINE OF PARAMOUNTCY
[876] The plaintiffs argue that even if the impugned Manitoba legislation
referred to above is intra vires the Province, it conflicted with valid federal laws
and therefore was inoperative to that extent on the basis of the doctrine of
paramountcy.
[877] The recent case of Rothmans, Benson & Hedges Inc. v. 2007 MBQB 293 (CanLII)
Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13, dealt with the doctrine of
paramountcy. In that case, Rothmans sought a declaration that section 6 of the
Saskatchewan Tobacco Control Act, S.S. 2001, c. T-14.1, was, by virtue of the paramountcy doctrine, inoperative in light of section 30 of the federal Tobacco
Act, S.C. 1997, c. 13. Section 19 of the federal Act prohibited the promotion of tobacco products and tobacco product-related brand elements, except as authorized elsewhere in the Act or its regulations. The provisions following section 19 both prohibited specific types of tobacco product promotion and permitted other types of promotion that section 19 would otherwise have prohibited. Among those provisions, subsection 30(1) provided that, “subject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element.” Subsection
30(2) further provided that retailers might post signs indicating the availability and price of tobacco products.
[878] Section 6 of the provincial Act banned all advertising, display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 years of age were permitted.
[879] Major J., writing for a unanimous court, found that the provincial legislation was not inoperative by virtue of the paramountcy doctrine. He wrote, at p. 193:
¶ 11 The doctrine of federal legislative paramountcy dictates that 2007 MBQB 293 (CanLII) where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency. …
[880] At p. 195, he wrote:
¶ 15 It follows that in determining whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine, two questions arise. First, can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act? Second, does s. 6 of The Tobacco Control Act frustrate Parliament’s purpose in enacting s. 30 of the Tobacco Act?
[881] At pp. 195-96, he wrote:
¶ 17 Read in the context of the Tobacco Act as a whole, it is clear that the purpose and effect of s. 30 is to define with greater precision the prohibition on the promotion of tobacco products contained in s. 19. Specifically, it serves to exclude from the wide net of s. 19 promotion by way of retail display. In this way, it is like ss. 22(2), 26(1) and 28(1) of the Tobacco Act, which also exclude from the s. 19 prohibition certain types of tobacco product promotion that it might otherwise capture. This demarcation of the s. 19 prohibition represents a measured approach to protecting “young persons and others from inducements to use tobacco products”, one of the purposes of the Tobacco Act set out in s. 4.
¶ 18 However, in demarcating the scope of the s. 19 prohibition through s. 30, Parliament did not grant, and could not have granted, retailers a positive entitlement to display tobacco products.
[882] Major J. went on to find that dual compliance was possible with respect to
both the provincial and federal legislation and further that the provincial
legislation did not frustrate the legislative purpose underlying section 30 of the
Tobacco Act. He, therefore, concluded that the doctrine of federal legislative
paramountcy did not apply.
[883] Following Rothmans, Benson & Hedges Inc., supra, the two
questions which must be considered and answered in this case or whenever the 2007 MBQB 293 (CanLII)
paramountcy doctrine is raised are:
(1) Can a person simultaneously comply with both provisions?
(2) Does the provincial legislation frustrate Parliament’s purpose?
[884] In this case, the plaintiffs assert that the doctrine of paramountcy applies
in the circumstances of this case so as to invalidate the Manitoba legislation which the plaintiffs impugn in paragraph 50 of its statement of claim.
[885] The plaintiffs say that Canada’s policy of settlement and not sales was
reiterated by Order in Council March 23, 1876.223 That Order in Council related
to section 31 lands and provided in part as follows:
The lands referred to consist of those appropriated under Section 31 of the Act 33 Vict., chap. 3, for the children of Half-Breed heads of families residing in the Province at the time of the transfer to Canada; and the said lands were to “be granted to the said children, respectively, in such mode, and on such conditions as to settlement, or otherwise, as the Governor General in Council might from time to time determine”.
223 Exhibit 1-1171
The mode of allotting the lands and the classification of persons among whom the same should be distributed, have been authoritatively settled; but, previous to the issue of patents, it is necessary to deal with applications which have been made by persons claiming to hold assignments of Half-Breed Land rights, who ask to have the patents issued to them, direct, under such assignments.
Respecting this question, the undersigned begs to state, that, with a view to discourage the operations of speculators in these lands, no prospect has been at any time held out that such assignments would be recognized by the Government; and, believing such policy to be directly in the interests of the persons for whose benefit the lands were appropriated, he respectfully recommends that the same now receive the authority of the Privy Council. 2007 MBQB 293 (CanLII) [886] Order in Council March 23, 1876, was repealed in 1893. But the plaintiffs argue that while it was extant, all of Manitoba’s legislation relating to the sale of allotments was in conflict with it.
[887] The plaintiffs assert that there cannot be a federal law which says sales of allotments would not be recognized standing together with provincial legislation authorizing such sales. They argue that in such a case, there exists an impossibility of compliance with both, hence an express contradiction. Further, they argue that compliance with the provincial legislation would frustrate the purpose of the federal legislation. Accordingly, the plaintiffs say that such provincial legislation is inoperative by reason of the doctrine of paramountcy.
[888] In addressing the plaintiffs’ position respecting the doctrine of paramountcy, Manitoba raises two preliminary points. Firstly, the statement of claim in this action makes no reference to the doctrine of paramountcy nor seeks relief thereunder and the plaintiffs should not now be permitted to seek a remedy not asked for in the statement of claim.
[889] Secondly, Manitoba refers to the claims advanced and/or the relief sought
by the plaintiffs in paragraphs 50, 58(a) and 58(c) of the statement of claim.
[890] In paragraph 58(a), the plaintiffs seek a declaration that such statutes
were ultra vires the Province of Manitoba “or were otherwise unconstitutional”,
and in paragraph 58(c) seek a declaration that the statutes “unconstitutionally
interfered with the fulfillment of the obligations under section 31 of the Act”. 2007 MBQB 293 (CanLII) [891] As regards paragraphs 58(a) and (c), Manitoba asserts that there is no
pre-1982 doctrine of “otherwise unconstitutional”. As well, it says that there is
no doctrine of unconstitutional interference. It argues that laws are either valid
(intra vires) if enacted within the powers allocated by the constitution or invalid
(ultra vires) if enacted outside of those powers. It, therefore, asserts that there
can be no declaration that its legislation either was “otherwise unconstitutional”
or unconstitutionally interfered with other legislation.
[892] As to paragraph 50, the plaintiffs there allege that certain Manitoba
statutes are unconstitutional. Manitoba argues that the doctrine of paramountcy
applies only when there is a constitutionally valid federal law and a
constitutionally valid provincial law that are inconsistent. Thus, Manitoba says
that for the plaintiffs to invoke the doctrine of paramountcy, they are advancing
a position and seeking relief on a basis wholly inconsistent with their case as pled. To invoke or seek to rely on the doctrine of paramountcy, the plaintiffs
must acknowledge the constitutionality of the Manitoba legislation which they
assert to be unconstitutional; otherwise, the doctrine does not apply.
[893] And, says Manitoba, should the doctrine of paramountcy be successfully
argued, the remedy is for a court to find the provincial law inoperative to the
extent of the inconsistency, not to declare it unconstitutional. The provincial law
is not declared unconstitutional for the very reason that it must be constitutional
for the doctrine to apply. The effect of application of the doctrine of 2007 MBQB 293 (CanLII)
paramountcy is that the provincial law stands inoperative until such time as the
federal law is repealed at which point the provincial law is automatically revived.
[894] Further, Manitoba argues that it is inappropriate for the plaintiffs in this
case to seek a declaration that Manitoba laws are inoperative when such laws have already been repealed.
[895] The two preliminary points aside, Manitoba argues that the paramountcy doctrine does not render inoperative the legislation attacked by the plaintiffs. It says that an examination of Order in Council March 23, 1876, makes clear that it is not in conflict with the impugned Manitoba legislation so as to render impossible compliance with both the federal enactment and the impugned
Manitoba legislation. Nor, it says, does the impugned provincial legislation frustrate the purpose of the federal legislation.
[896] Manitoba refers to two Acts, The Half-Breed Land Grant Amendment
Act, 1877 and The Half-Breed Land Grant Act, 1878, which it asserts make
the point both with respect to them and the other impugned Acts. Manitoba says the pith and substance of both Acts were in respect of contract.
[897] The former provided that if an individual chose to contract to sell section
31 land, the contract had to be for valid consideration and in the form of a deed.
If it was, it was a legal contract and the statutory right of the vendor to void the contract at will was no longer available. The latter provided that if a person between the ages of 18 and 21 were to contract, additional safeguards over and 2007 MBQB 293 (CanLII) above those that existed at common law would need to be observed.
[898] Manitoba asserts its legislation did nothing more than attempt to bring greater certainty in the area of contract law than that which existed at common law relative to what was occurring on the ground, namely, the sale by eligible recipients of their interests in the section 31 land grant prior to patent. If
Manitoba did not legislate in the area, the common law would have applied as a result of which contracts could have been made by minors without parental consent, without judicial oversight including as to the issue of valid consideration and with the ongoing ability to void the contracts prior to and for some period following attainment of majority.
[899] Manitoba argues that, simply put, Canada by its Order in Council determined that patents would issue in the name of the allottee whereas
Manitoba’s legislation simply provided that in order for a vendor to transfer or
assign his/her entitlement to section 31 lands, certain formalities of contract law
would have to be observed. There was no functional inconsistency.
[900] As well, Manitoba submits that its legislation did not frustrate the purpose
of the federal law. Rather, Manitoba says its legislation and Canada’s were complementary to each other.
[901] Manitoba asserts that the purpose of the Order in Council was simply to 2007 MBQB 293 (CanLII) confirm a policy decision of Canada that it would not recognize assignments but
would grant the patent only in the name of the person who was the actual
allottee of the land by virtue of the random lottery conducted by the lieutenant
governor in Manitoba. It says the Order in Council did nothing more than state and give notice of that fact. The Order in Council did not prohibit the granting of assignments, transfers and the like.
[902] Manitoba says that one can infer that Canada enacted the Order in
Council for a highly practical purpose. Its outright refusal to accept assignments obviated the need for Canada to have to set up the administrative machinery necessary to examine assignments, transfers or other documentation in order to determine their legal validity and the chain of title before granting a patent.
[903] Furthermore, Manitoba argues that while not conclusive of the fact, it certainly bears weight to note that Canada itself has never asserted, then or today, that Manitoba’s impugned legislation was inconsistent with or frustrated
Canada’s purpose in enacting Order in Council March 23, 1876. Had Canada felt
otherwise, it could have disallowed the legislation, a common practice at that
time, or proceeded to court for a judicial determination. It did neither then nor
since.
[904] In my view, the Order in Council did not prohibit sales or assignments of
one’s interest in land before patent or deal with contract law in any manner, nor
can one read or reasonably construe the Order in Council as prohibiting or constituting a legal prohibition against sale or assignment of section 31 interests 2007 MBQB 293 (CanLII) pre-patent.
[905] Indeed, just as Parliament did not grant retailers a positive entitlement to display tobacco products in Rothmans, Benson & Hedges Inc., Canada did
not by the Order in Council declare assignments illegal, nor prohibit, nor void
them.
[906] In my view, there is no functional inconsistency between the federal
enactment and the provincial legislation. Simultaneous compliance is easily
possible. Nor does Manitoba’s legislation frustrate the federal objective in
enacting the Order in Council.
[907] Having so decided, I need not deal with the two preliminary points raised
by Manitoba in its submission.
THE FEDERAL POWER OF DISALLOWANCE OF LEGISLATION
[908] The plaintiffs argue that Canada’s fiduciary duty to the Métis children imposed a duty upon it to disallow any provincial legislation which enabled sales of section 31 lands prior to grant or which singled out Métis children to facilitate their ability to sell their land before they reached the age of majority.
[909] The plaintiffs assert that in carrying out its fiduciary obligation when it 2007 MBQB 293 (CanLII) finally got around to distributing the land, Canada could and should have turned to its power of disallowance and disallowed provincial legislation that was apparently unconstitutional or that impeded or frustrated Canada’s observance of its fiduciary duty to the Métis children.
[910] It argues that the Lieutenant Governor, by the combined operation of sections 55, 56, 57 and 90 of the Constitution Act, 1867, had the power to
reserve provincial legislation for one year and the Governor General had the
power to disallow provincial legislation for a period of one year after it received
the assent of the Lieutenant Governor.
[911] The plaintiffs refer to a memorandum from Macdonald, approved by
Cabinet on June 9, 1868, in which he indicated, in the context of disallowance,
that the Minister of Justice should report any provincial Acts that the Minister
considers:
(1) as being altogether illegal or unconstitutional;
(2) as illegal or unconstitutional in part;
(3) in case of concurrent jurisdiction, as clashing with the Legislation of
the General Parliament; or
(4) as affecting the interests of the Dominion generally.
[912] The documentary evidence in this case establishes that the power of
reservation and/or disallowance was frequently resorted to during the period in 2007 MBQB 293 (CanLII)
question. The document entitled “Correspondence, Reports of the Ministers of
Justice and Orders in Council upon the subject of Dominion and Provincial
Legislation, 1867-1895”224 provides numerous examples of this having occurred
with respect to Manitoba statutes dealing with the construction of railways,
telegraph lines, bridges over navigable waters and the like.
[913] In fact, Canada disallowed the 1875 amendments to The Half-breed
Land Grant Protection Act, 1873. But, say the plaintiffs, all of the
subsequent provincial measures allowing sale of interests in section 31 lands
before grant, allowing infant Métis to sell without a court order, and regularizing
irregular sales, were allowed to stand by Canada. This, the plaintiffs assert, was
in breach of a fiduciary duty owed by Canada to the Métis children in respect of
the section 31 lands.
224 Exhibit 1-0259
[914] Canada disputes this allegation. It argues that there can be no actionable breach of duty, if indeed there were breach of duty, by reason of a refusal to exercise the power of reservation or disallowance. Canada says that the power
of disallowance is purely discretionary, one reserved to the Governor General in
Council. Its exercise is not obligatory. There can be no positive duty to invoke
the power and, moreover, the discretion is not subject to review by the courts.
[915] Canada refers to Reference re the Power of the Governor General 2007 MBQB 293 (CanLII)
in Council to Disallow Provincial Legislation and the Power of
Reservation of a Lieutenant-Governor of a Province, [1938] S.C.R. 71,
and Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R.
327, [1993] S.C.J. No. 99 (QL), both decisions of the Supreme Court of Canada
in support of its position.
[916] I agree.
[917] In Reference re Power to Disallow and Power of Reservation, supra, Cannon J. wrote, at p. 80:
Question 2. The power of disallowance by the Governor General in Council is subject to no limitation or restriction whatsoever, save that it has to be exercised within the period of one year after receipt of the Act by the Governor General.
And in providing his reasons for reaching his conclusions, including to Question 2
as quoted above, he wrote, at p. 82:
The Judicial Committee, in Wilson v. Esquimalt and Nanaimo Ry. Co. … said, as regards the federal power of disallowance: “It is indisputable that in point of law the authority is unrestricted.” How and
when the power is to be exercised is a matter to be determined by the Governor General in Council.
[918] Crocket J., in his judgment, wrote, at pp. 86 and 87:
With regard to question 2 as to whether the exercise of the power of disallowance of provincial legislation by the Governor in Council is subject to any limitations or restrictions, I am of opinion that, in point of law the authority is unrestricted as was distinctly held by the Judicial Committee of the Privy Council, speaking by my Lord the Chief Justice of Canada, in Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202; and that its exercise by the Governor in Council is subject to no limitation except that which is found in the enactment itself as above reproduced as to the time within which the authority must be exercised and the manner in which the disallowance must be signified, if the latter 2007 MBQB 293 (CanLII) can properly be said to be a limitation upon the exercise of the power. The enactment plainly applies to any and every bill which becomes an Act of any Provincial Legislature by reason of the Lieutenant-Governor’s assent in behalf of the Sovereign, and the words “and if the Governor General in Council within one year after receipt thereof (i.e. after receipt of an authentic copy of the Act by the Governor General to whom the Lieutenant-Governor is required to send such copy) thinks fit to disallow the Act” distinctly denote an entirely unfettered discretion on the part of the Governor General in Council so far as the exercise of the power of disallowing the Act is concerned, whether the Act be one which may be found to be intra or ultra vires of the Legislature, provided such power is exercised within a year after the receipt of the authentic copy by the Governor General. … We are, of course, concerned here only with legal limitations and restrictions — not with any question of the expediency or inexpediency of the exercise of the power of disallowance in any particular case. That is the responsibility of the Governor in Council entirely.
[919] And in his judgment, Kerwin J., at pp. 95 and 96, wrote:
The circumstances under which the powers referred to may be exercised are matters upon which this Court is not constitutionally empowered to express an opinion since the power of disallowance is granted by the Act to the Governor General in Council and the power of reservation is to be exercised by the Lieutenant-Governor “according to his Discretion, but subject to the Provisions of this Act and to the Governor General’s Instructions.”
[920] In Ontario Hydro, supra, La Forest J., at p. 371, wrote:
… The powers of disallowance and reservation accorded the federal government by ss. 55-57 and 90 of the Constitution Act, 1867 give it unrestricted authority to veto any provincial legislation; see Wilson v.
Esquimalt and Nanaimo Railway Co. [[1922] 1 A.C. 202], at p. 210; see also Reference re Disallowance and Reservation, [1938] S.C.R. 71. The exercise of this authority is wholly a matter of discretion for the federal government, and in the Reference case just noted, it was stated that the courts are not constitutionally empowered to express an opinion about its exercise (see p. 95); for a similar statement regarding the declaratory power, see The Queen v. Thumlert [(1959), 20 D.L.R. (2d) 335]….
[921] In my view, there is no merit to the plaintiffs’ argument on this issue.
Firstly, as I have already found, there was no fiduciary duty owed by Canada to
the Métis including the Métis children with respect to the section 31 land grant. 2007 MBQB 293 (CanLII)
[922] In any event, the law is clear. Whether or not to exercise the power of
reservation or disallowance is wholly in the unfettered discretion of the Governor
General in Council and is not subject to review or comment by the court.
[923] As a matter of law, there could be no actionable duty owed by the
Governor General in the exercise of the discretion whether to invoke or not invoke the power of disallowance. It surely, therefore, cannot be a basis for action by the plaintiffs here.
IMPLEMENTATION OF THE LAND GRANT UNDER SECTION 31 OF THE ACT
[924] Canada argues that the plaintiffs’ complaints with respect to the section
31 grant can be categorized essentially under four separate headings:
(1) complaints about selection of land;
(2) complaints about allotment of land and the provision of scrip in
lieu;
(3) complaints that eligible section 31 claimants were able to sell their
land before patent or before attaining the age of majority;
(4) delay.
I agree that that is a useful categorization and shortly, will consider the complaints accordingly.
[925] Before doing so, I will consider complaints of a broader and more 2007 MBQB 293 (CanLII) fundamental nature.
[926] The plaintiffs’ fundamental complaint with respect to the section 31 grant is that Canada did not administer it in such a way as to create and/or preserve a
Métis land base.
[927] Canada asserts however that there was no intention or obligation under the Act to create and/or preserve a Métis land base. Rather, Canada says the
Act was an essential piece of legislation in building the nation of Canada. It says
Canada’s intention in acquiring Rupert’s Land and the North-western Territory was to enable Canada to create a country from sea to sea and that the Act became the instrument through which the inhabitants of Rupert’s Land, other than Indians, would and did acquire full citizenship within the Canadian
Confederation.
[928] In my view, Canada’s argument on this point is correct and the plaintiffs’ position fundamentally flawed. I conclude this for a variety of reasons:
! There is much more in the Act than sections 31 and 32. Almost all
of the provisions of the Act deal with or are designed to deal with
different aspects of creating a new province and building the new
nation of Canada. As regards land, those provisions are found in
sections 30 to 33 of the Act.
! As I have already decided, the Métis did not enjoy aboriginal title to
the land in question. Historically, they had never owned property 2007 MBQB 293 (CanLII)
in a communal manner. They had always owned land individually
and bought from or sold to Métis and non-Métis as they desired.
To suggest that they had any desire to do otherwise is not
supported by the evidence and intuitively makes no sense given
their history and culture.
! While it is true that they lived in communities, called parishes,
there was no communal ownership of land which would give rise to
any suggestion that they had prior to the Act a Métis land base or
that they desired to have one thereafter. Where they lived was
determined on the basis of religion, language and culture, but in
that, they were no different than many other members of ethnic or
cultural communities then or even now. However, they still owned
their land on an individual basis and were free to maintain
ownership and stay, to sell ownership and move, to purchase
additional land or to sell their land and move to other purchased
land.
! The Métis were not Indians. They considered themselves superior
to Indians and had enjoyed prior to the Act the rights of full
citizens within the Settlement, including in its governance,
commerce and the holding of senior positions. The Convention of
40 made clear that it expected to enjoy the rights of full citizens 2007 MBQB 293 (CanLII)
following passage of the Act, and the list of rights taken by the
Red River negotiators clearly echoed that request and made clear
reference to the Indians as less than full citizens. The legislation
passed by the Legislative Assembly did likewise. Canada, in
administering the section 31 grant, was dealing with persons who
enjoyed all of the rights of full citizens of Canada which included
the right to own and dispose of land.
! On the evidence, there was no unanimity amongst the Métis as to
the selection of the land under section 31. While both the English
half-breeds and the French Métis wanted the right to select their
land, they were not agreed as to the rationale for location or the
location itself.
! It is clear from the discussions in Red River and between the Red
River delegates and Macdonald and Cartier leading to passage of
the Act that the question of a land grant under section 31 had
never arisen or been contemplated until Macdonald and Cartier
made clear to Ritchot, Black and Scott that while Rupert’s Land
could enter Confederation as a province and not a territory, Canada
would own the land. Nowhere in those discussions or in the
Parliamentary Debates is there any evidence of a promise to
create or preserve a Métis land base in Manitoba nor is there any
provision in the Act to do so. Indeed, it is clear from Northcote’s 2007 MBQB 293 (CanLII)
diary references of discussions with Cartier and Macdonald that
neither of them intended to have the land located in a block and
they made clear, both then and subsequently, in the debates in
Parliament that the grant under section 31 was subject to Canada’s
obligation to the HBC and the Indians, and as well, to its intent to
build a national railway.
[929] In my view, the purpose of section 31 of the Act was not to create a
Métis land base within Manitoba but to provide a benefit to the Métis by way of grant to the children, the result being that each Métis child in Manitoba would have the opportunity to own and settle upon a piece of land within the new province if he or she so chose.
[930] Following passage of the Act and during administration of the section 31 grant, it was made clear to Canada by the Manitoba Legislature,225 the majority
225 Exhibit 1-0687
of whose members were either Métis or sympathizers of the Métis, that the land to be given under section 31 was to be given absolutely to the recipients and could be held or disposed of as they wished.
[931] This view was expressed throughout the period during which implementation occurred. The petitions from various parishes in February and
March 1875226 evidenced this in referring to the Half-Breed’s rights “either to cultivate or dispose of” the land. So too did Taché recognize this.227 2007 MBQB 293 (CanLII)
[932] And plaintiffs’ counsel in the course of the case before me acknowledged that had Canada in its administration of the section 31 grant absolutely prevented a recipient from selling his or her interest in the land prior to patent, the best the Métis could have hoped for was simply an opportunity for the creation of a land base. How then can there be any merit to the submission that
Canada breached an obligation to create and/or preserve a Métis land base when the Act did not require it, when the evidence establishes that the parties on the ground at the time did not seek or expect it, and when plaintiffs’ counsel acknowledges that the best the Métis could have hoped for was not the creation of a land base but the creation of an opportunity for a land base.
[933] Section 31 clearly gives Canada a very broad discretion in administering the land grant provided thereunder. While the section provides for the grant and
226 Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043 227 Exhibit 1-1243
specifies who are to be the recipients, the manner in which the 1,400,000 acres
was to be divided, and the process or procedures for so doing had not at the
time of passage of the Act been determined. In the result, the section gave the
very broad discretion as appears from its language.
[934] Another point of argument advanced by the plaintiffs is that Archibald and
all others but the Métis were guided by a desire to ensure that the Métis grant did not form a clog on the development of the province, that is, inasmuch as 2007 MBQB 293 (CanLII) many of the grantees were infants, they would not receive their grant (i.e., the patent or title) until they obtained 18 years of age. Much of the land would not be able to be developed or to be put in play for development or acquisition by others.
[935] There was debate as to whether or not conditions of settlement should be imposed. Cartier, in Parliament on April 13, 1871, explained that there would be no conditions of settlement imposed and that rather than so doing, the government would be the guardians of the land until the children reached majority. The plaintiffs assert that this did not occur. But in fact the evidence discloses that in virtually every case the patents granted under section 31 were granted in the name of the child entitled pursuant to the random lottery and subsequent allotment.
[936] There are several references in the Parliamentary Debates leading to passage of the Act where Macdonald likened the section 31 grants to the grants
which had been made to the United Empire Loyalists. But many of those grants
had not been taken up or had been lost by escheat to the Crown by reason of
the conditions attached to the grants. This is clear from the report of Stephen E.
Patterson Land Grants for Loyalists.228
[937] It appears on the evidence that what may have motivated Cartier and the
government to not impose settlement conditions or duties upon the land was the
fact that a great number of those entitled to the land were infants who would 2007 MBQB 293 (CanLII)
not be able to fulfill whatever conditions, duties or obligations might be imposed.
That could result either in their not applying for a grant or in their forfeiting the
grant by reason of their failure to be able to comply with conditions.
[938] The evidence does establish that Ritchot and Taché wanted conditions
imposed which would entail the land and restrict for some period the ability of
Métis children to dispose of it or their interest in it.
[939] But it is clear from the evidence that the Manitoba Legislature did not share that view. Nor did the people on the ground. Addresses from the
Legislature and petitions from certain of the parishes to which I have already referred establish that. So too does the letter from Morris to Macdonald dated
February 14, 1873,229 wherein Morris wrote:
I have strange people to deal with and the land question is multi-form. Its last phase was a movement originated and supported by the Bishop and Ritchot demanding that the lands of the Half-breed heads of families
228 Exhibit 44 229 Exhibit 1-0818
should be entailed. I think it is dead already. I had a deputation from St. Norbert yesterday to oppose it. ….
[940] The language of section 31 does not provide for any encumbrance or conditions to be attached to the land once in the hands of the recipient. Rather,
it leaves such consideration to the discretion of the Governor General in Council.
[941] In my view, the exercise of discretion not to impose conditions of
settlement was well founded but, more importantly, it is beyond contention that 2007 MBQB 293 (CanLII) Parliament and the Governor General in Council had the discretion to decide
what to do in respect of that issue and that decision cannot be challenged.
[942] Upon passage of the Act all that may have preceded in the way of
discussion or debate was subsumed into the Act, and the broad discretion
afforded Canada under the Act must be accorded significant deference.
[943] In my view, so long as Canada, in implementing the section 31 grant
complied with the language of the Act by giving the land for division amongst
the children of the half-breed heads of families and did not act in bad faith in so
doing, its conduct cannot be successfully challenged. 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 in its
implementation of the grant.
[944] A complaint that the administration or implementation of the grant or its
outcome is unsatisfactory is not a justiciable complaint so long as what was done
or not done was pursuant to the language of the Act and the bona fide exercise of discretion within the terms of the Act.
[945] In Thorne’s Hardware Ltd. v. Canada, [1983] 1 S.C.R. 106 at 111,
[1983] S.C.J. No. 10 (QL), the Supreme Court of Canada held:
The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to the right of the courts to act in the
event that statutorily prescribed conditions have not been met and where 2007 MBQB 293 (CanLII) there is therefore fatal jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that statutory procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75; Minister of Health v. The King (on the Prosecution of Yaffe), [1931] A.C. 494 at p. 533. Decisions made by the Governor in Council in matters of … general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action. …
[946] Here, the plaintiffs’ fundamental complaint is that section 31 was to ensure a perpetual Métis land base, but in my view, that is not a possible interpretation from the section. There are no limits set in the language of section 31 as to what a recipient might do with his/her land. There is no specification whence the land is to be sourced and no time limit by which the grants must be given. The language of section 31 suggests land grants to children of half-breed heads of families to do with as they see fit once received and the section as well clearly gives the Governor General in Council the authority and mandate to decide upon the method by which each recipient is to receive his/her share of the grant.
[947] As well, section 31 does not restrict but rather contemplates changes in
policy respecting administration of the grant as it makes reference to regulations
made from time to time.
[948] The plaintiffs complain about Archibald’s letter of December 27, 1870,230 written in respect of section 31 of the Act.
[949] Firstly, they say it was not up to him to “second-guess” the agreement 2007 MBQB 293 (CanLII) that had been reached or the measures intended by the Act. I have already determined that there was no agreement. As for the assertion that Archibald was second-guessing or that it was not up to him to do so, the facts are that
Archibald was instructed by the Under Secretary of State for the Provinces to report, for the information of the Governor General in Council, his opinion as to the regulations which should be made by the Governor General in Council under section 31 of the Act. His letter was written in compliance with those instructions and in it he provided not just his opinion but context for it. What the
Federal Cabinet did in respect of his report and opinion was up to it. There is no merit to this criticism by the plaintiffs.
[950] As well, the plaintiffs have taken exception to Archibald’s description of the grant as a “boon” and assert that that is evidence Archibald did not understand the nature of aboriginal title of Métis people.
230 Exhibit 1-0548
[951] The Shorter Oxford English Dictionary, 2nd ed., 1936, defines “boon”
as a favour, a gift (this was its meaning in the 17th century), and as a blessing,
an advantage, a thing to be thankful for (as it was meant in 1767).
[952] The Concise Oxford Dictionary, 8th ed., 1990, defines “boon” as an advantage, a blessing and, as well, a gift, a favour.
[953] The Oxford Thesaurus published in 1992, describes as synonyms for 2007 MBQB 293 (CanLII) “boon” the following: gift, favour, award, reward, gratuity, present, blessing,
benefit, advantage.
[954] In my view, the law is clear that aboriginal title is something that
aboriginals enjoy independent of the Crown. It logically follows then that it is
something the Crown can recognize, but it is not something the Crown can give.
[955] I have already concluded that the Métis people in Manitoba did not enjoy
aboriginal title to the land in question.
[956] The land grant was a gift given for the reasons previously described in
this judgment. Whether or not “boon” is an accurate descriptor for the grant is,
I suppose, arguable given that Canada understood that its dealings with the representatives of Red River and the negotiations leading to the Act were being overseen by the Imperial Government. I cannot say whether Archibald understood the concept of aboriginal title, but in my view, Archibald certainly
was correct in not concluding that the Métis enjoyed aboriginal title to the
subject land.
[957] As well, the plaintiffs complain that Archibald erred when he concluded
that all of the half-breeds in the province were entitled to share in the section 31
grant. As there were 10,000 half-breeds and the grant was 1,400,000 acres, the
recommendation was that each half-breed receive a tract of 140 acres. 2007 MBQB 293 (CanLII) [958] In this, the plaintiffs are correct. Section 31, of course, mandated that the grant be divided among the children of the half-breed heads of families and be granted to the said children respectively.
[959] To the extent this recommendation of Archibald was adopted and included in Order in Council April 25, 1871, it was erroneous and that portion of the Order in Council was off-side section 31 of the Act. Canada has conceded that fact.
This, of course, was remedied by Order in Council April 3, 1873.231 In the result, there was no substantive effect to the error, but it did cause delay in the allocation of the lands to be granted under section 31.
[960] Let me turn then to address the four headings of complaint to which I earlier referred.
231 Exhibit 1-0859
SELECTION OF LAND
[961] The plaintiffs advance various complaints about selection of the land for the 1,400,000-acre grant. They say that they did not receive first choice as regards that land. Canada asserts that there was no such obligation upon it under the Act.
[962] In my view, Canada’s position is correct. There never was a commitment to provide first choice nor is such a commitment reflected in the Act. 2007 MBQB 293 (CanLII)
[963] Such a commitment to the Métis in respect of this grant would have been impossible given Canada’s responsibility to others. Both Macdonald and Cartier made this clear to the Red River delegates, as Ritchot’s diary entry for April 27,
1870,232 records:
Wednesday, at 10 o’clock, we met again at the house of Sir George. Sir John and Sir George were present. They presented us with a draft of a bill, which we discussed at length, then came the question of lands and the control of lands. The plight of the Company played a certain role here, the sale approved by England, the rights of the Indians, the survey, the works to be undertaken, etc. …
[964] One of the works Canada intended was construction of a railway which would unite Canada from coast to coast, something that would have been in the interests of all Manitobans and the country as a whole.
[965] Similar comments were recorded by Northcote in his diary entries of conversations he had with both Cartier and Macdonald in early May 1870.
232 Exhibit 1-0005, page 140
[966] As well, this fact was made clear in the Parliamentary Debates leading
to passage of the Act.
[967] In addition, Canada had an obligation to those persons entitled to land
under section 32, and in particular subsections 32(1) and (2), of the Act.
Canada’s need to balance these various obligations and responsibilities made granting the Métis a first choice to land impossible and provides ample reasons for there being no right of choice given to the Métis under the Act. 2007 MBQB 293 (CanLII)
[968] Having said that, the Métis were given significant input into the choice of the land from which the grant was to be made. This occurred largely by reason of the invitation of Archibald.
[969] The plaintiffs assert that Order in Council April 25, 1871, was the most important document respecting implementation of the section 31 grant. That
Order in Council first provided for the system of survey of the land in Manitoba.
It also provided that:
The Lieutenant Governor of Manitoba shall designate the townships or parts of townships in which the allotments to the half-breeds shall be made.
[970] By the spring of 1871, nothing apparent had been done concerning
selection of the section 31 land but in the meantime, immigrant settlers were
coming into the province and looking to settle. This caused unrest amongst the
Métis as they saw others coming in and selecting land when they in fact had not
been given the opportunity to do so, an opportunity which they felt would be a first choice certainly as compared to incoming settlers.
[971] This unrest amongst the Métis led to the letter of May 24, 1871,233 from six members of the Legislative Assembly of Manitoba concerning the land grant and hay rights. Both led to Archibald writing his letter of June 9, 1871,234 in response. 2007 MBQB 293 (CanLII) [972] In this letter, Archibald referred to Order in Council April 25, 1871, and continued as follows:
By these rules, I perceive that it will be left to the Lieutenant Governor of this Province to designate the townships, or parts of townships, in which the allotments to the Half-breeds shall be made.
Should I be called upon to act under this rule, I shall consider that the fairest mode of proceeding will be to adopt, as far as possible the selections made by the Half-breeds themselves.
Wherever, therefore, any Parish of Half-breeds, or any body of Half-breeds, shall have made choice of a particular locality and shall have publicly notified the same in such manner as to give notoriety to the fact of their having made such a selection and having defined the limits thereof, so as to prevent settlers entering upon the tract in ignorance of the previous selection, I shall if the duty should fall to me of acting under the rule laid down by the Governor General, be guided by the principle I have mentioned, and confirm the selections so made, so far as this can be done without doing violence to the township or sectional series.
[973] Shortly thereafter, on June 17, 1871, Archibald wrote Howe concerning his June 9, 1871 letter. He advised Howe of the uneasiness within the province concerning the half-breed grant resulting from the arrival of immigrants who
233 Exhibit 1-0620 234 Exhibit 1-0620
were beginning to take up land as they arrived. He described very generally the
results of this unease and in reference to his June 9, 1871 response, he said:
I should have hesitated about replying if the situation had allowed me any choice, but I felt bound to give some answer, at the risk even of not being sustained by His Excellency the Governor General.
[974] The plaintiffs assert (as did Taché235 and the Manitoba Legislative
Assembly236 at the time) that by his letter of June 9, 1871, Archibald thereby acted under the powers given him by Order in Council April 25, 1871, and that 2007 MBQB 293 (CanLII) his letter was a proclamation by which he designated or committed to the designation of the townships or parts of townships selected or to be selected by the Métis, from which the allotments of the section 31 grant should be made.
[975] In my view, the positions expressed then, and the argument advanced by the plaintiffs now, are wrong.
[976] Archibald’s letter, as he explained to Howe and Macdonald, was written in the face of agitation and unrest in the province. It was written to pacify the
residents, particularly the Métis.
[977] While there is no question that Order in Council April 25, 1871,
empowered Archibald to designate such land for such purpose, it is clear, in my
view, from the language of his letter that he was simply expressing his present
intention as to the performance of a future act. He was not making the
designation.
235 Exhibit 1-0680 236 Exhibit 1-0687
[978] He wrote, “Should I be called upon to act under this rule …” and “I shall if
the duty should fall to me of acting under the rule laid down by the
Governor-General be guided by the principle I have mentioned….”
[979] The evidence is clear that Archibald considered it necessary to write his
June 9, 1871, letter so as to pacify the concerns of the old residents, including the Métis, because of the unrest within the community caused by the arrival of settlers and their taking up of land while the grantees were left to wait. But in 2007 MBQB 293 (CanLII) my view, there is no question that Archibald knew he did not have authority to do so, or at least was not confident of that.
[980] I base this conclusion on the language of his June 9, 1871, letter from which I have quoted, and his letter to Howe of June 17, 1871,237 wherein he
wrote:
I should have hesitated about replying if the situation had allowed me any choice, but I felt bound to give some answer, at the risk even of not being sustained by His Excellency the Governor General.
[981] While the Order in Council empowered the Lieutenant Governor to
designate the land, he had not been requested or instructed by the Governor
General or the Governor General in Council to act under the Order in Council and commence the designation so provided. Yet, that is where the power reposed under the Act.
237 Exhibit 1-0633
[982] In my view, Archibald’s letter of June 9, 1871, was not the designation contemplated under the Order in Council. He understood that as evidence his correspondence at the time and the correspondence between Aikins and him in
July and August 1872238 demonstrate the manner in which such selection was to be made.
[983] The annual report of the Immigration Agent for the Northwest, Mr. J.A.N.
Provencher, dated January 1872239 provides insight from one present in the 2007 MBQB 293 (CanLII)
Province at the time as to the understanding of Métis who participated in the selection of lands prior to and following Archibald’s June 9, 1871, letter.
[984] He wrote, at page 76 of the Exhibit:
The half-breeds, a little alarmed at the proportions which immigration assumed last spring, assembled in public meetings in their respective parishes and adopted several resolutions, demanding that certain localities which they specified should be granted to them as their share of that reserve.
These claims are in terms which do not admit of their extent being exactly determined, unless with a thorough knowledge of the several localities, but it may be stated, approximately, that they comprise four miles on each side of Red River, or settlements which lie along that river from Pembina to the northern boundary of the province, two miles on each side of the river sale, and of Rivière-aux-Îlets-de-Bois, eight or ten miles on each side of the Assiniboine River where settlements which lie along that river as far as Portage la Prairie, 10 miles by 20 to the east of the existing settlements at Pointe-des-Chênes, 20 miles by five to the east of Lake Manitoba, and lastly the tract comprised between the Assiniboine River, opposite the parishes of Baie-St-Paul and St-François-Xavier, the east of Pembina Mountain, the frontier of the province, and Rivière-aux-Îlets-de-Bois.
238 Exhibits 1-0727 and 1-0733 239 Exhibit 1-0668
These limits are purely temporary, and the parties interested do not themselves wish to maintain them except until the surveys are completed.
[985] Order in Council May 26, 1871, which allowed immigrants to occupy land
before survey, certainly was a source of divisiveness and unrest within the
province, but a closer analysis of the ultimate outcome makes clear in my view
that its effect upon the section 31 land grant was minimal. That Order in Council
created a situation that was temporary only. As well, when one reviews the 2007 MBQB 293 (CanLII) Manitoba Métis Study Maps, there was not in my view any significant loss to
Métis interests in the land grant resulting from the fact that their selections were
not wholly accepted. Certainly not of a sufficient quantity or quality as would
result at this late date in any judicial remedy.
[986] The plaintiffs complain that Canada subjugated the interests of the Métis
to the interests of Canada and others in respect of the selection of land at Poplar
Point and High Bluff. While the evidence supports that complaint, it also makes clear that Archibald simply exercised his discretion, a discretion which, in my view, he had, to balance the demands of the residents with other considerations which, in his opinion, were materially beneficial to the interests of Canada and the province on a go-forward basis. As well, there was no evidence offered at trial of complaints made thereafter concerning the ultimate reservation of this
land which would lead one to infer that the residents on the ground accepted it.
[987] Lastly, the plaintiffs assert that Archibald had promised certain lands requested by the parishes of St. Boniface/St. Vital, St. Norbert and St. François-
Xavier/Baie-Saint-Paul to those parishes and that his successor Morris had failed to abide by that promise. There was an exchange of correspondence between
Taché and Dennis concerning this. But as appears from Dennis’s response,240 the subject lands fell within the Settlement Belt and the lands to be allotted under the section 31 grant were not to include Settlement Belt lands.
[988] The Settlement Belt lands were included in the river lot survey. But, the section 31 lands were to come from lands covered by the general survey. 2007 MBQB 293 (CanLII)
Canada asserts that Order in Council April 25, 1871, made that clear in stating that the Lieutenant Governor would designate the lands from townships or parts of townships, and the sample draw ticket shown in the Order in Council made reference to a legal description related to the general survey as distinguished from the river lot survey. Moreover, the use of river lots would have been inconsistent with the 240-acre parcels that were ultimately selected under the children’s grant.
[989] Part of the evidence introduced at trial consisted of a series of maps provided by Canada under the direction of Dr. Ens. These are comprised in a booklet.241 Certain maps contained within the booklet were enlarged and filed as
well as separate individual exhibits.
[990] There were four different depictions of the townships from which the land
240 Exhibit 1-0868 241 Exhibit 25
grant was to be made. Those four are set forth on general maps 1 to 4, respectively.242 General map 1 shows the lands selected by the Métis themselves
(sometimes referred to as “spontaneous demands”) prior to and following
Archibald’s letter of June 9, 1871. General map 2 shows those townships selected by Archibald and Morris prior to September 1873. General map 3 shows the townships as adjusted by the withdrawal of the outer two miles in September
1873. General map 4 shows the townships from which the actual allotments 2007 MBQB 293 (CanLII) came.
[991] Based upon those maps, the plaintiffs challenged Dr. Ens’ assertion that
Archibald was fairly successful in accommodating the initial selections made by the Métis parishes and that the actual lands reserved for grant could not have been a perfect fit because most of the Métis parishes requested far more land than their populations warranted or for which the Act provided.
[992] The plaintiffs argue that this was not so and that in the preponderance of cases, the Métis parishes initially selected a reasonable amount of land relative to their number of children, the only exception where a greatly excessive amount was sought being St. François-Xavier and Baie-Saint-Paul.
[993] As well, they argue that in drawing general map 1 (i.e., the reflection of the Métis claims or spontaneous demands based upon metes and bounds),
Dr. Ens, for every aspect of the description requiring judgment, appears to have
242 Exhibit 25
erred on the side of depicting a larger area rather than a lesser area which was
capable of conclusion if Dr. Ens had exercised his judgment differently.
[994] The plaintiffs also assert that I should reject Dr. Ens’ opinion that in
almost all cases, Archibald reserved lands that were within the areas requested
by the Métis. The plaintiffs say that a review of the comparative maps reveals in
10 out of 12 cases, Archibald reserved lands for a parish outside the area initially
selected by that parish. As well, they argue that the comparative maps show 2007 MBQB 293 (CanLII)
that in 14 out of 18 cases, allotments were located outside the areas finally
reserved by Morris.
[995] The plaintiffs assert that from the comparative maps and in particular general map 4, it is evident the extent to which allotments were located outside of the reserved boundaries, as is the wide separation of the areas selected for such allotments. This, the plaintiffs argue, when coupled with the random lottery process, would have exacerbated the breakup of landholdings within families (particularly in the cases of St. Boniface/St. Vital and St. François-
Xavier/Baie-Saint-Paul), and promoted the sale rather than settlement of such lands.
[996] The plaintiffs assert, therefore, that the maps highlight the extent to which the Crown failed to discharge its obligations to the Métis children.
[997] The maps themselves are very helpful in permitting one to understand the history of the actual land selection including the result or effect of the random lottery scheme.
[998] While not commenting upon the exercise of judgment by Dr. Ens, but based upon my consideration of the evidence on that point, I reject as inaccurate
Dr. Ens’ assertion that most parishes requested far more land than the populations warranted. 2007 MBQB 293 (CanLII)
[999] In my view, there is merit in these assertions of the plaintiffs, but relative to the overall grant the differences are not significant.
[1000] The maps track what are described as spontaneous demands, to the selection or reservation of land from which the grant was to be made, and ultimately to allotments. Clearly, there was not a perfect match, but the evidence overall does demonstrate a willingness upon Canada’s part of trying to accommodate the wishes of the parishes. Certainly, there is no claim being advanced nor in my view is there evidence to support a claim of bad faith on the part of Canada in the ultimate designation of the lands in question.
Furthermore, there is little, if any, evidence of complaint from the people at the time relative to the selection of the lands in question.
THE ALLOTMENT OF THE LAND AND THE PROVIDING OF SCRIP IN LIEU
[1001] Aside from delay, the plaintiffs’ principal complaints concerning allotment of the land are the use of a random lottery and the provision of scrip in lieu of land to 993 of the children by reason of the land grant having been exhausted.
[1002] The plaintiffs assert that the use of a random lottery, as provided for in
Order in Council April 25, 1871, was contrary to an agreement reached between 2007 MBQB 293 (CanLII) the provincial negotiators and the federal government which they assert had provided for selection of land in family blocks.
[1003] As I have found, there was no such agreement. Furthermore, there was not at the time of the negotiations, nor subsequently, unanimity between the
French Métis and the English half-breeds concerning selection of the land to be granted. It is true that the French Métis wanted the land grant to be contiguous to the areas in which they were residing and, for the most part, without undue concern for the value of the land. The English half-breeds on the other hand were of a different view. While they, too, wanted to be able to select their land, they were more interested in the value of the land to be selected than its location. As well, the negotiators were not representing only the French Métis or only the English half-breeds, but both and as well the other residents of the area which was about to become Manitoba. Canada had to act in the interests of all and as well consistent with its goal of nation building.
[1004] The plaintiffs say that the use of a random lottery resulted in a family
member having his or her land close to the rest of their family by chance only.
The plaintiffs argue that the maps graphically illustrate the effect of random distribution on the location of the lands granted to the individual children under section 31 relative to the location of the lands of their parents.
[1005] But, while the lottery was indeed random, it was not random throughout the entire province. Rather, it was random on a parish-by-parish basis. That is, 2007 MBQB 293 (CanLII) allotments were done on a parish-by-parish basis and the land from which the allotments were drawn was land that had been designated for a particular parish.
Accordingly, a child from the parish of St. Boniface was in the lottery along with other children from that parish for the allotment of lands designated for that parish. Such child was not in the lottery along with a child from the parish of
St. François-Xavier nor was the land in respect of which the allotment was being
made land designated for the parish of St. François-Xavier if the child was a
resident of St. Boniface.
[1006] In my view, it is difficult to conceive how the grant could have been
administered other than by a random lottery without creating unfairness and
significant divisiveness within each parish. While the plaintiffs assert that the
Métis wished to have the children’s grants contiguous to the land of the parents
and to each other, it is difficult to understand how practically that could occur.
For one thing, families in those days were of large size and each child was
ultimately entitled to 240 acres. Would it have been practically feasible to have
the grants made to members of a family contiguous to the land of the parents
and to each other without overriding the grants to which a neighbouring family
might be entitled? In addition, a random lottery gave every child in the parish
an equal chance to receive the best parcel of land available within that
designated for the parish.
[1007] The plaintiffs refer to Cartier’s letter of May 23, 1870, where, in the
postscript which apparently was added on after May 27, 1870, he wrote: 2007 MBQB 293 (CanLII)
I have, moreover, the honour to assure you, as well on my own behalf as on behalf of my colleagues, that as to the million four hundred thousand acres of land reserved by the 31st section of the Manitoba Act, for the benefit of the families of half-breed residents, the regulations to be established from time to time by the Governor General in Council, respecting that reserve, will be of a nature to meet the wishes of the half- breed residents, and to guarantee, in the most effectual and equitable manner, the division of that extent of land amongst the children of the heads of families of the half-breeds residing in the Province of Manitoba at the time when the transfer is to be made to Canada.
[1008] The plaintiffs argue that the French Métis took this to be an assurance that they would be able to pick their land as they wished. There is, of course, another interpretation which might be made regarding that postscript, namely, that the land would be selected and distributed in such a way as to satisfy the people that the process used in implementing the grant was one fair to all recipients. A random lottery or selection would accomplish this.
[1009] As well, again, there is little, if any, evidence of complaints about random
selection from those present at the time.
[1010] Canada asserts that family blocks were not the intent and that had they been intended or required, the Act would have so provided.
[1011] Moreover, the phrase “family block” was never used or recorded by any of the persons involved in the negotiations leading to the Act, nor in the debates relative to its passage, nor in the language of the Act itself. And, as already expressed in these reasons, there is evidence which would make clear that a single block or family blocks were contrary to the intentions of both Macdonald 2007 MBQB 293 (CanLII) and Cartier. Ultimately, section 31 provided that the selection of such lots or tracts would be subject to the discretion of the Governor General in Council by regulation and, as well, that the grant would be made in such mode and on such conditions as to settlement or otherwise as the Governor General in Council may from time to time determine.
[1012] The Act clearly did not provide for family blocks, nor in my view did it require same.
[1013] As regards the plaintiffs’ argument concerning the issue of supplementary scrip in lieu of land, the evidence makes clear how that occurred.
[1014] Briefly, Archibald, in his letter of December 27, 1870, relied upon the census which he had commissioned and which determined that there were approximately 10,000 Métis resident in Manitoba, approximately 7,000 of whom were children. He erroneously recommended that each Métis person should be entitled to participate in the grant whereas section 31 clearly mandated that the
grant should go only to the children of the Métis. Canada accepted his recommendation and determined that with 1,400,000 acres available and to be divided equally amongst 10,000 Métis, the size of the grant should be 140 acres.
[1015] Subsequently, Canada acknowledged that this was wrong and corrected the error. Accordingly, the adult Métis were excluded, reducing to 7,000 the number of eligible recipients, and the grant size was increased to 190 acres. 2007 MBQB 293 (CanLII) [1016] Shortly before allotment, a further enumeration was done by the
Machar/Ryan Commission. It returned with 4,891 children enumerated as entitled to share in the grant. Codd was directed to consider and report on the appropriate number for purposes of determining the size of the individual grant.
He did so.
[1017] The plaintiffs argue that his conclusion flies in the face of the 1870 census which indicated there were approximately 7,000 children and, as well, Dennis’s concern (concurred in by Codd only a few weeks earlier) that there might be too many children for a 190-acre grant.
[1018] While hindsight clearly demonstrates that Codd was in error (as was Order in Council September 7, 1876, which relied upon his letter), it is my view that his letter evidences, but for hindsight, a reasoned consideration of the problem and a reasoned explanation for the number at which he arrived.
[1019] I note that there is no suggestion or evidence of mischief or malice on the
part of Codd or Dennis in arriving at that number.
[1020] The difficulty in determining the size of the individual grant was the fact
that there was a finite amount of land to be granted and each recipient was to
receive an equal share. Canada was not dealing with only a few individual
grants but with many, whether 7,000 as ought to have been the case or 5,833 as ultimately was determined and upon which the grant size was based. 2007 MBQB 293 (CanLII)
[1021] But, had Canada determined the number of shares to be 7,000 and ultimately discovered that in fact there were only 6,000, the recipients would have received less than the entire 1,400,000 acres, and there would have been a surplus of land. This would have necessitated either cancellation of the entire allotment followed by a fresh allotment or a supplementary allotment. The former would have resulted in additional delay. The latter would have resulted in the surplus land being located some distance from the original land granted to an individual. On the other hand, if they underestimated and the individual grants exhausted the overall grant, then there would be a shortfall and children would not receive land.
[1022] Regrettably, as events would disclose, the number settled upon by Codd was under by close to 1,000 and the 190-acre grant based upon 7,000 recipients
was far closer to what would have been ultimately accurate though it would have
resulted either in the necessity for a further small allocation or in a surplus in the
hands of the government given that when you add the number 5833 and the
993 children who as a result received scrip instead of land, the total is 6,766,
234 short of 7,000.
[1023] At some point, however, a decision had to be made so that the grant
could go forward. But the target was a moving target, partly in light of the
mobility of the Métis and obviously the number decided upon was substantially in
error. 2007 MBQB 293 (CanLII)
[1024] A good example of the problem as it existed on the ground at the time is
demonstrated by certain of the genealogical evidence introduced.
[1025] Madeline Sayiese (nee Beads) was an ancestor of Ronald Erickson.243 She
was born January 1868 in the United States and applied for scrip in the
Northwest Territories in 1885. At the same time, her father, Thomas Beads,
applied for Manitoba head of family benefits.244 On her application, Madeline
Sayiese stated that she moved to Winnipeg when she was 1 year of age245 and
had left around 1875. She was given section 31 supplementary scrip.
[1026] Theophile Richard, born about 1855, was an ancestor of Alex Roulette.246
He stated on his application that he was “absent at Fort McLeod during the summer of 1870” and “when the Halfbreed census was being taken … my name
243 Exhibit 2, Tab 8 244 Exhibit 2, Tab 8, and Exhibit 1-1684 245 Exhibit 1-1682 246 Exhibit 2, Tab 16
through an omission on the part of my family was not given out.”247 He received
supplementary scrip in 1886.
[1027] Angelique Richard (nee Roulette) was an ancestor of Alex Roulette.248
She, too, received supplementary scrip. She had taken treaty benefits until
1886, but chose to withdraw from treaty in that year and take Manitoba supplementary scrip.249 2007 MBQB 293 (CanLII) [1028] These three individuals would be part of the 993 people who received
supplementary scrip. While only three of the 993, their circumstances cause one
to ask questions about the particular situations pertaining to the 993 people.
How many, for example, were Indians on July 15, 1870 by their parents’ choice,
but then chose years later to reclassify themselves as Métis? How many were
left off the allotment list through their parents’ omissions? How many failed to
make application until many years after the 1.4 million acre grant was
exhausted? While answers to questions of this kind are not available, questions
of this kind were not addressed by the plaintiffs and give rise to evidentiary concerns as to what weight can be attached to the fact that 993 supplementary scrips were issued. Who else is on the list of 993 and what is his/her story?
[1029] In the result, the entire 1,400,000 acres, and indeed somewhat more, was granted to the children but 993 went without. In lieu, those children received
247 Exhibit 1-0052 248 Exhibit 2, Tab 16 249 Exhibit 1-0053
scrip to a value of $240.00. The scrip was available for selection of land or for
sale as the recipient chose.
[1030] Again, the evidence at the time discloses little, if any, complaint
concerning the grant of supplementary scrip in lieu of land.
[1031] In my view, section 33 of the Act, which provides that:
33. The Governor General in Council shall from time to time
settle and appoint the mode and form of Grants of Land from the Crown, 2007 MBQB 293 (CanLII) and any Order in Council for that purpose when published in the Canada Gazette, shall have the same force and effect as if it were a portion of this Act,
provided Canada with the authority and discretion to provide scrip in lieu of land
and in so acting, Canada was on-side the Act and exercising its discretion in a
reasonable manner in the circumstances.
SALES BEFORE PATENT OR ATTAINMENT OF MAJORITY
[1032] The plaintiffs complain that Canada failed to prevent eligible section 31
claimants from selling their lands before patent or before attaining the age of
majority.
[1033] Section 31 of the Act clearly provided that the grant of 1,400,000 acres
was to be divided “among the children of the half-breed heads of families
residing in the province at the time of the said transfer to Canada”. “Children” in
that section is a word designating lineage, not age. True, many of the children
were under 21, or under 18 years of age, the latter being the age that Canada
stipulated for receipt of patent, but many children had attained their majority
and, in terms of age, were adults. In considering this complaint, it is necessary to remember that fact.
[1034] As well, it is necessary to remember that there is a difference between the land itself and one’s beneficial interest in the land. It is conceded by all parties that Canada retained ownership of the land until patent and accordingly it and it only had jurisdiction to legislate in respect of the land and then consistent with the provisions of the Constitution Act, 1871. 2007 MBQB 293 (CanLII)
[1035] In my view, however, the beneficial interest in land was a different matter. Anyone who was an eligible recipient of land under section 31 had a beneficial interest in that land to the extent of their entitlement. And in my view,
Manitoba had jurisdiction to legislate in respect of such interest, the jurisdiction falling under section 92(13) of the Constitution Act, 1867, property and civil rights.
[1036] The plaintiffs have argued that there was a fiduciary duty owing between
Canada and the children in respect of the section 31 land either by reason of their aboriginality or by reason of their being children. I have already concluded that there was no such fiduciary obligation.
[1037] As well, there was under the Act no obligation on the part of Canada to hold the lands in trust for the children or to be the guardian of the children in respect of the land. It is true that Cartier said that Canada would be the
guardian of the land, but in fact the evidence in my view discloses that to the extent it could, Canada did just that.
[1038] The evidence is that Canada would not issue section 31 patents in the names of assignees. It was prepared to issue patents only to the actual allottees. However, to the extent an allottee wished to sell his or her beneficial interest in the grant, he or she was free to do so. Clearly, that was the case with grantees who had attained their majority. It was likewise the case, in my view, 2007 MBQB 293 (CanLII) with grantees who had not attained their majority. They were entitled to sell their beneficial interest either at common law or latterly pursuant to the provisions of legislation passed by the province.
[1039] One must remember that the Métis sought to be considered full citizens of the new province and of Canada and to treat them differently would have been patronizing and in all likelihood viewed with disfavour by the Métis people themselves.
[1040] As for those grantees between the ages of 18 and 21 years, Order in
Council April 25, 1871, set the age at which persons would receive their patents at 18 years. At common law the age of majority was not an absolute for all purposes. Canada had the right to choose the age of 18 years as it did, and there is no evidence of complaint at the time about that provision.
[1041] Manitoba passed legislation controlling the sale of the beneficial interests in land by those between the ages of 18 and 21 years and by those under 18 years.
[1042] As regards children under the age of 18 years, the legislation passed by
Manitoba at the material time is substantially the same as exists today. That is, a regime exists to permit an infant to sell land or his or her beneficial interest in land, but in order to ensure that the contractual transaction is binding upon the 2007 MBQB 293 (CanLII) infant, certain steps must be taken involving court approval.
[1043] While the evidence in this case discloses that the legislation then in existence was not being complied with by the judiciary, that surely is not something for which Canada can be held liable. As well, even though it would fall under the administration of justice, a power under the jurisdiction of
Manitoba, it is not something for which Manitoba can be held responsible. The courts operate independently of the Legislature and the Executive and if there are either errors by, or misconduct on the part of, the judiciary, there were and are remedies for that. But it does not translate into vicarious responsibility for either Canada or Manitoba.
[1044] The plaintiffs argue that Canada’s duty was to ensure that there was no speculation in respect of the lands before grant. They say that what was called for was one simple sentence in Order in Council April 25, 1871, barring alienation before patents.
[1045] The practical reality in my view is that that would have been impossible.
The evidence discloses a variety of methods (to which I have earlier referred)
used by people, including the Métis themselves, to enable sales of a grantee’s
interest before patent. While the plaintiffs claim that Canada had the ability to stop such sales, I am not convinced that Canada could have done so legally without bringing the issue under its criminal law powers, that is, making it a crime for people to sell or to buy. But, from a practical perspective, even that 2007 MBQB 293 (CanLII) would not likely have put a stop to it.
[1046] There is no doubt that sales did occur prior to grant of patent. There is also no doubt that some sales were made to speculators and for improvident prices.
[1047] On November 9, 1881, the Land Grants’ Inquiry began its proceedings.
Contained in the record of the proceedings250 is considerable evidence of sales
being made by prospective grantees to speculators and others and often at
prices alleged to be improvident. It is difficult to assess at this time the motives
of those who testified but for purposes of this case, I accept as a general
statement that there were indeed many sales by Métis children of their beneficial
interest in section 31 lands and for prices that were in some cases improvident,
even grossly so. There were undoubted abuses. But as Dr. Flanagan pointed
out in his report:251
250 Exhibit 1-1532 251 Exhibit 18, page 78
There were many judicial sales (560 more or less), but they made up less than 10 percent of all children’s allotments (6,034).
[1048] However, there is as well evidence of sales which occurred at market prices and clear evidence that the sales were not in all instances sales to
speculators or as the result of pressure or conduct of speculators.
[1049] For example, Dr. Ens, in his report, records particulars as to the largest
number of buyers of river lots in St. Norbert. He wrote:252 2007 MBQB 293 (CanLII) In identifying all purchasers who bought more than four river lots, that is, large purchasers often referred to as speculators, it is interesting to note that the list contains both Métis and non-Métis, French and English and two members of the Catholic priesthood. The largest buyer, by a factor of three, was Father Ritchot….
[1050] Table 9 records that Ritchot bought 23 river lots in the parish of
St. Norbert and Taché, six. Footnote 34 on page 21 of the report states that of
Ritchot’s 23 purchases, 18 were made between 1870 and 1875 and of Taché’s
six purchases, four were made at that time. Of the 22 purchases by Ritchot and
Taché, the purchase price could be ascertained for 14. The average price paid
per lot was $71.00 (the minimum being $16.00 to a maximum of $165.00). Of
those 22 purchases, 15 resales could be ascertained. The average price of the
resale of the 15 lots by Ritchot and Taché was $710.00 from a minimum of
$150.00 to a maximum of $1,800.00.
[1051] There is no suggestion made or intended that Ritchot or Taché was a
speculator. And if they were not, it is unlikely then that either of them was
252 Exhibit 36, page 20
approaching Métis and offering to buy their lands. What is more likely is that
Métis, without inducement by speculators or otherwise, were intending to sell
their lands for one reason or another and that Ritchot and/or Taché were buying
with a view to selling the lands to other French Catholics who would
subsequently move into the province. But, the point remains that like other
buyers, Ritchot and Taché appeared to have bought at a lesser price than what
they sold for, presumably both being dictated by the market conditions at the 2007 MBQB 293 (CanLII) time. And so, too, would it surely have been the case with others. That does not make them, or necessarily others, speculators, nor does it lead to a conclusion that they, or necessarily others, were taking advantage of the Métis.
DELAY
[1052] The plaintiffs say that their overarching complaint is that of delay. The
Act became effective July 15, 1870. The final allotment did not commence until
October 30, 1876, and was not completed until 1880. While grants of patents
continued to be made thereafter, the bulk of them were issued by 1881.
[1053] There are a variety of reasons offered in the evidence for the delay in
selection and allotment, but it is nevertheless difficult to understand why this
took so long. The time taken between allotment and the actual grant of patent
is even more difficult to explain.
[1054] The plaintiffs argue that the delay promoted the sale of the land from the
grantees and reduced the prospect of any opportunity for a Métis land base.
They assert that with the passage of time, grantees became increasingly concerned as to whether the grant would ever be fulfilled, and if so, as to the condition of the land when it was received as compared with its condition at and shortly after 1870, particularly as regards timber and the quality of the land for hay. This, say the plaintiffs, would have caused people to decide to sell and obtain what they could rather than continue with the uncertainty and anxiety over the pending grant. Intuitively, this argument makes sense. 2007 MBQB 293 (CanLII)
[1055] On the other hand, there was no particular time limit set forth in section 31 for final implementation of the land grant. Furthermore, the circumstances were that a fledgling province had just come into existence, that it was remote from Ottawa which had the delegated responsibility for administration of the grant, that the Lieutenant Governor and ultimately the
Manitoba Legislature had many issues to address and with which to deal in the establishment of the new province, that many of the Métis lived a somewhat nomadic life and that errors occurred which caused, or issues arose which justified, the implementation of changes leading up to the finalization of the size of the land grant and the resulting allocation of the lands.
[1056] A concern, however, in assessing the complaint as to delay is the difficulty of having to make an assessment of circumstances which occurred between
1870 and 1885 approximately, through 2007 glasses. It is an extremely difficult thing to do reliably. And in doing so, I am reminded that a common lament even today of people wishing to develop land for residential purposes is that there is a
considerable delay experienced in obtaining all of the necessary government approvals. That, of course, is with all of the modern conveniences including
instant communication and the significantly increased size of government.
[1057] As regards the implementation of the section 31 grant, the evidence is
clear that the patents were not issued “all over Manitoba” as the plaintiffs assert,
but rather were issued to children within the land designated for their respective
parishes. The section 31 lands were largely concentrated around what had been 2007 MBQB 293 (CanLII)
the Settlement Belt. There clearly is evidence of sales of section 31 lands at
improvident prices, but there is also considerable evidence of the sale of such
lands at market value and at a time when the market for land sales was high.
Ultimately, the evidence discloses that many Métis sold their land but many
others kept their land and acquired more. 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. One can readily understand how
uncertainty whether as to the location of the land or as to the binding nature of
the sale agreement, as well as to the market price of land from time to time,
would have a material impact upon the price paid by a purchaser to a vendor.
[1058] Ultimately, the Métis who were full citizens of Manitoba at the time made
individual choices and there is, in my view, no basis in law, in the circumstances
here, for any finding of liability on the part of Canada respecting the section 31
lands.
IMPLEMENTATION OF SECTION 32
THE PLAINTIFFS’ POSITION
[1059] The plaintiffs advance no claim with respect to subsections 32(1) and (2) of the Act except for delay. 2007 MBQB 293 (CanLII)
[1060] The plaintiffs argue that the language of subsections (1), (2) and (3) was necessarily different from the language of subsection (4) of section 32 by reason
of the Selkirk Treaty, pursuant to which aboriginal title within the Settlement Belt
was extinguished. Within the Settlement Belt, therefore, the HBC held
unencumbered title and was able to make or withhold grants of land.
Subsections (1) and (2) referred to the grants made by the HBC. Subsection (3)
referred to lands within the Settlement Belt occupied by persons without
objection from the HBC.
[1061] Subsection (4) on the other hand related to land outside the Settlement
Belt where Indian title had not been extinguished.
[1062] Thus, subsection (3) provided that squatters on land within the Settlement
Belt enjoying title by occupancy with the sanction and under the license and
authority of the HBC were entitled to have such title converted into a freehold
estate by grant from the Crown.
[1063] But in respect of land outside the Settlement Belt, settlers could not acquire any sort of legal interest and the HBC could not grant a legal interest until Indian title had been extinguished. This, of course, would necessitate a treaty with the Indians.
[1064] Accordingly, such persons in peaceable possession of land outside the
Settlement Belt were by subsection (4) accorded the right of pre-emption of that land on such terms and conditions as might be determined by the Governor in 2007 MBQB 293 (CanLII)
Council. It was in respect of that land that Cartier, by letter of May 23, 1870, promised that persons who fell within the provisions of subsection 32(4) of the
Act would not have to pay for their land.
[1065] The plaintiffs argue that the different language in the two subsections was the result only of the different legal status of the land and that there was no reason to believe it was intended to reflect a different test for possession in the two different areas. They assert that what was to be protected in both cases was possession in accordance with the customs and usages of the country.
[1066] They assert that as Parliament had reserved to the Crown the power to implement the land provisions of the Act through regulations, this created fiduciary responsibilities on the part of Canada in the formulation and administration of the regulations.
[1067] The plaintiffs say that the residents were assured by the remarks of representatives of Canada that the land policy would be liberally construed and
say that such a liberal construction was not observed in respect of subsections
32(3) and (4) during most of the 1870s.
[1068] And they assert that during the 1870s, federal officials did not wish to recognize such claims where the evidence of possession did not amount to
“really valuable improvements”. They assert therefore that Canada did not wish
to recognize occupancy or possession in accordance with the customs and
usages of the country. 2007 MBQB 293 (CanLII)
[1069] The plaintiffs argue that Canada knew about the usages of the country
but began rejecting subsections 32(3) and (4) claims despite the assurances given before and leading up to passage of the Act as to the implementation of a
liberal land policy, and in the face of and contrary to the customs and usages of
the country.
[1070] And they say that the petition of parishioners from Ste. Agathe dated
November 13, 1873, is evidence that “peaceable possession” within the
Settlement Belt was understood by the settlers to be sufficient evidence of a
“title by occupancy” with the sanction of the HBC within the meaning of
subsection 32(3).
[1071] The plaintiffs assert that in interpreting and administering the Act, it
appears that the primary concern of Canada was less with the proper
interpretation of the Act or the assurances given in 1870 to the Red River
delegates and more with whether fulfilling the promises would result in the Métis
having too much land. They assert that regardless of Whitcher’s expressed concern,253 the protection of lands such as those at Ste. Agathe was exactly what the Red River delegates had sought and Macdonald and Cartier had agreed to.
[1072] The plaintiffs refer to Dennis’s memorandum of March 4, 1876,254 wherein he provided Laird with particulars as to the protocol to be followed pertaining to applications for patent for lands under section 32 of the Act. They assert that in that document and in those other situations where Dennis was providing 2007 MBQB 293 (CanLII) direction or instruction as to the interpretation of subsections 32(3) and (4) and as to what would be required in order to qualify a claimant for patent, Dennis’s comments were coloured by his understanding that “occupation” was only established by the presence of “really valuable improvements”. The plaintiffs assert, therefore, that Dennis did not recognize as occupation the sort of possession with few improvements which was characteristic of the usages and customs of the country prior to 1870 and with respect to which the Red River delegates had successfully sought recognition in the negotiations.
[1073] The plaintiffs refer to Order in Council April 20, 1876, wherein Laird had reported, and the Order in Council adopted, that lands which were not surveyed or occupied but had merely been marked out by the claimants by stakes prior to
July 15, 1870, were not entitled to consideration for patent. The plaintiffs say it was known, or should have been, to Laird and Canada generally that prior to July
253 Exhibit 1-0922 254 Exhibit 1-1166
15, 1870, surveyors were not normally used but were only called on if there had
been a dispute with another settler. The plaintiffs refer to Dr. Flanagan’s report255 wherein he wrote:
Most staked claims would have been disallowed under this policy, since only a few claimants had gone as far as to hire a surveyor.
They also assert that the Order in Council begged the question by stating that
lands marked out by stakes were not “occupied”. The usage of the country had
been to permit occupation by staking. 2007 MBQB 293 (CanLII)
[1074] They say the above observations are therefore circular – where
improvements were noted, occupation was recognized. However, this did not
recognize the sort of possession, with few improvements, which was
characteristic of the usages and customs of the country prior to 1870 and with
respect to which the Red River delegates had successfully sought recognition in
the negotiations.
[1075] The plaintiffs argue the same point in reference to Dennis’s letter of
September 23, 1876, to Whitcher256 wherein he said he had discussed several
applications for patent with the Deputy Minister of Justice and had rejected those
with neither improvements nor surveys prior to transfer.
255 Exhibit 18, page 131 256 Exhibit 1-1204
[1076] The plaintiffs assert that the rejection of some of the claims was based on
the misapprehension of what had been the usage of the country in respect of the
use of surveyors and the mode of taking possession.
[1077] The plaintiffs refer to the letter of April 16, 1877, from the Deputy Minister
of Justice, Lash, to Dennis regarding a number of section 32 claims.257
[1078] The plaintiffs assert that the opinions expressed by Lash in that letter are 2007 MBQB 293 (CanLII) impossible to reconcile with the wording and intent of section 32, the whole point of which was to protect interests that were based on such things as possession for obtaining wood and hay. Nor, the plaintiffs say, is it clear why over eight years of occupation was not occupation of the nature referred to in the statute.
[1079] The plaintiffs assert that under subsections 32(3) and (4), “really valuable improvements” were not necessary, settlers were to receive their lands free of charge, and there was no arbitrary maximum size to their entitlements.
[1080] The plaintiffs refer to Dr. Flanagan’s report,258 wherein he states that the
foregoing policy “would have disallowed more than 90 percent of the staked
claims on the Rat River and given only small amounts of land for the rest.”
[1081] The plaintiffs refer to Codd’s memorandum of December 20, 1877,259
257 Exhibit 1-1276 258 Exhibit 18, page 132 259 Exhibit 1-1320
wherein he wrote of his implementation of the instructions received from Dennis
on October 24, 1877, as he applied them in respect of claims in the area of the
Rat River. The plaintiffs assert that with the possible exception of the 42 claims having “no improvements whatsoever”, these rulings were all in violation of subsection 32(4). And even those 42 claims might have qualified for a title by occupancy in accordance with the usage of the country. In respect of the others, no purchase price of cash or scrip ought to have been required. 2007 MBQB 293 (CanLII)
[1082] The plaintiffs also refer to the memorandum written by Dennis on
January 17, 1878, to the Minister of the Interior260 respecting claims to land in
the Settlement Belt that prior to transfer had been occupied for some months
each year for sugar harvesting and on which buildings had been erected and the
ownership of which had “been recognized for years before, and at the time of,
the transfer, by other settlers on adjoining lands, and generally in the Parish”.
Dennis had reported that the only improvement was the erection of a house on which the claimants lived during sugar making season and that little or no cultivation had been effected. Dennis and Lash considered that these claims
were not covered by the Act because they had not been surveyed and
possession was not continuous through the year. In some cases, the lands had been sold to newcomers. Dennis suggested that they be treated as preemption
rights with the ability to purchase at $1.00 per acre.
260 Exhibit 1-1327
[1083] The plaintiffs assert that this is another violation of subsection 32(3). If
ownership was acknowledged in the community, the plaintiffs assert the holders
had a title by occupancy and should have received a free grant.
[1084] The plaintiffs refer to Macdonald’s statement of May 5, 1879, in the House
of Commons261 that it was the intention of his government to recognize “such staked claims as have been followed by possession and improvement”. 2007 MBQB 293 (CanLII) [1085] The plaintiffs assert that again improvements were said to be crucial despite the fact that improvements were not required by section 32 and were not part of the agreement that had been reached with the Red River delegates nine years earlier.
[1086] The plaintiffs refer to the letter from Deputy Minister of Justice Burbidge to Secretary Burgess of the Department of the Interior dated May 4, 1883,262 wherein Burbidge had stated it was difficult to define the exact meaning of the words “occupancy” and “peaceable possession” but that if lots were:
… fenced in, surveyed or marked out by bounds, and that the parties were using their respective lots as wood lots, and exercising acts of ownership each over the whole of his lot, and that no other persons were cutting wood or otherwise using the lots and that there is no adverse claim, in my opinion the parties would be entitled to the patents.
[1087] The plaintiffs assert that this was a more liberal interpretation than had
been applied during the previous decade under which many such claims had
been described as not worthy of consideration, or had been replaced with scrip,
261 Exhibit 1-1399 262 Exhibit 1-1581
or the granting of preemption rights, under which the claimants had to purchase
their lands. But the plaintiffs say that by this date, over half of the Métis had left
the province and the claims were held by purchasers of their interests. They assert that these speculators seemed to be more successful in persuading the government to give a liberal interpretation to section 32 than the Métis and their spokespersons had been. The plaintiffs say that Burbidge’s relatively liberal approach was announced eight years after the Act was passed, during which 2007 MBQB 293 (CanLII) years a much more restrictive approach had been taken.
[1088] The plaintiffs argue that the purpose of subsections 32(3) and (4) of the
Act was to protect persons who, in 1870, possessed land, whether or not anyone was residing on the land at that time as was agreed to between the Red
River delegates and the government representatives in 1870.
[1089] As regards subsection 32(5), the plaintiffs assert that the hay and
common rights, though regulated by the Council of Assiniboia, were not created by the council but were longstanding rights enjoyed as part of the custom of the country associated with the river lots.
[1090] The plaintiffs argue that the hay privilege was not limited to the inner parishes. They assert that if intuitively the two miles behind a river lot were
vitally necessary in order to make a river lot viable within the inner parishes, the
same need would exist in the outer parishes.
[1091] The plaintiffs assert that the laws of the Council of Assiniboia did not refer
to any geographic limit for the hay privilege. And in fact when specifically
commissioned to inquire and report into the nature and extent of the hay
privilege, McKeagney and Bétournay reported to Morris263 that “these rights, although more or less universally claimed throughout Manitoba, vary very much as to their character and as to the extent and the manner in which they are held and enjoyed by individuals.” And they went on to recommend that a board or 2007 MBQB 293 (CanLII) commission be appointed “whose duty it should be to investigate each individual
claim which may be made under the Act quieted for the commutation either of
the Right of Common or Right of Cutting Hay, and award such compensation to be in full of such claim as may be fair and equitable in the provinces.”
[1092] Dr. Flanagan, in his report,264 wrote as to the delay in addressing the hay
privilege and the problems which resulted:
In summary, the government can be faulted for initial delay; almost nothing was done about the hay privilege until January of 1873. This delay produced complicated interference with the Métis children’s grant and also made it possible for newcomers to the province to establish claims to portions of the outer two miles by means of purchase or homestead entry …
… The most reasonable criticism that can be made is that delay caused some old settlers to lose part of their outer two miles to newcomers through homestead or preemption.
[1093] The plaintiffs, therefore, assert that the failure of the federal government
to adequately consult with, and accommodate the concerns of, the old settlers
263 Exhibit 1-0841 264 Exhibit 18, page 158
(most of whom were Métis) in respect of their desire to preserve intact their landholdings (which would include the “hay privilege” lands), amounts to a breach of the honour of the Crown.
[1094] In addition to delay (the first grant under subsection 32(5) was not made until 1877), the plaintiffs assert that the administration of the “hay privilege” was plagued by other problems caused by government officials. Federal officials, say the plaintiffs, erroneously limited the proper benefit of subsection 32(5) to those 2007 MBQB 293 (CanLII) settlers within the inner parishes, when the right extended to all landholdings in what was to become the Province of Manitoba.
[1095] And while many (but not all) of the old settlers in the inner parishes eventually received grants of land to the rear of their lots in commutation of the hay privilege, others in the inner parishes, and all settlers in the outer parishes, received no more than scrip. The plaintiffs assert that issuing scrip instead of granting land was in direct contravention of subsection 32(5) of the Act.
[1096] Additionally, the plaintiffs say federal officials knew or should have known that the viability of the old settlers’ lots for farming and for subsistence purposes was dependent on the lot holder securing full rights (title) over the adjoining land used for the hay privilege. Without the latter, the former was not viable.
Failing to grant title to both parcels facilitated the alienation of the front parcel of land even if the old settler was fortunate enough to eventually secure title to the same.
[1097] Lastly, the plaintiffs assert that by virtue of Orders in Council April 25,
1871, and May 26, 1871, Canada expressly allowed new settlers to settle upon and gain priority to the outer two miles which were intended to become the fee simple lands of the old settlers.
CANADA’S POSITION RESPECTING SECTION 32
[1098] Canada argues that the plaintiffs raise four general complaints with respect to Canada’s conduct regarding its obligations under section 32 of the 2007 MBQB 293 (CanLII)
Act, namely:
(1) difficulties in acquiring title to subsections 32(3) and (4) lands;
(2) refusal of staked claims and ultimate policy of requiring payment;
(3) commutation of the hay privilege in scrip rather than land, and
Canada’s failure to render the outer two limits off limits to new
settlers; and
(4) delay.
[1099] Before addressing those four enumerated complaints, Canada advances by way of argument some general comments respecting section 32.
[1100] Canada asserts that there is no relevance to the plaintiffs’ case as framed.
It argues that the plaintiffs have framed their case as one which involves the loss of a land base for a collectivity. But the existence of section 32 is inconsistent
with the notion of a collectivity, since as the Section states, its purpose was to
confirm individual titles for all people (Euro-Canadian and Métis alike) who were
in occupation of their lands at the relevant time. If there is any claim under
section 32, Canada says, it would be that title was not confirmed for a particular
person, and there is no evidence before me to that effect regarding any of the
plaintiffs.
[1101] Canada says section 32 of the Act has a number of components which 2007 MBQB 293 (CanLII)
simply address the different kind of landholdings which existed as at July 15,
1870. But, the purpose of section 32 is described in its opening words: “For the quieting of titles and assuring the settlers in the province the peaceable possession of the lands now held by them …” That is, the purpose of the section was to allow settlers to keep the lands which they held at that time.
[1102] Subsections (1) and (2) referred to settlers who held land by way of grant from the HBC whether in freehold or in estates less than freehold.
[1103] Subsections (3) and (4) recognized the rights of squatters. Subsection (3) related to squatters who occupied lands within the Settlement Belt. Subsection
(4) was intended to cover all who lived outside the Settlement Belt and gave a right of preemption to persons in peaceable possession “at the time of transfer”.
[1104] Black’s Law Dictionary, 6th ed., defines “preemption right” as:
A privilege accorded by the government to the actual settler upon a certain limited portion of the public domain, to purchase such tract at a fixed price to the exclusion of all other applicants.
and
One who, by settlement upon the public land, or by cultivation of a portion of it, has obtained the right to purchase a portion of the land thus settled upon or cultivated, to the exclusion of all other persons.
[1105] Both subsections 32(3) and (4) dealt with situations where an interest in
land had not been formally conferred by the HBC. The difference in language
between the two sections was to distinguish lands in which Indian title had been
extinguished (subsection (3)) from lands in which it had not (subsection (4)). 2007 MBQB 293 (CanLII)
[1106] In the former case, the land being within the Settlement Belt, Indian title
no longer existed and the squatters’ occupation of such lands, though not
formally conferred by the HBC, was authorized or permitted by it.
[1107] In the latter case, the land being outside the Settlement Belt, Indian title
still existed. Hence, the HBC had no authority to grant titles or to authorize or
permit occupancy.
[1108] Canada argues that the term “peaceable possession” in subsection (4)
simply acknowledges that Indian title still existed and notwithstanding that, these people had been in possession free from adverse claims of the Indians at the
time Manitoba became a province.
[1109] Canada submits, however, that peaceable possession necessitated some
degree of occupation. It asserts the case law is clear that a title by possession
requires some degree of occupation of the land. Moreover, a right of preemption
was given by subsection 32(4) and preemption requires settlement, inhabitation, and improvement by the preemptor.
[1110] In support of this proposition, Canada refers to Hosmer v. Wallace
(1878), 97 U.S. 575, a decision of the United States Supreme Court, wherein, at p. 579, the court wrote:
To create a right of pre-emption there must be settlement, inhabitation, and improvement by the pre-emptor, conditions which cannot be met when the land is in the occupation of another. 2007 MBQB 293 (CanLII)
[1111] In Bank of America National Trust and Savings Association v.
Bank of Amador County (1933), 135 Cal. App. 714, a decision of the Court of
Appeal of California, the court wrote, at p. 720:
“ ‘Possession of land’ has been defined as the actual control, by physical occupation; the holding of it, and the exercise of dominion over it; the immediate, exclusive dominion of it; that position or relation which gives to one its use and control and excludes all others from a like use or control. …”
[1112] In Bentley v. Pepard Estate (1903), 33 S.C.R. 444, [1903] S.C.J. No.
31 (QL), Sedgewick J., for the court, wrote, at p. 446:
3. Where a person without title and without right (in Canada we call him a “squatter”) enters upon land, his possession in a legal sense is limited to the ground which he actually occupies, cultivates and encloses; it is a possessio pedis – nothing more.
[1113] And in Moore v. Boyd (1930), 39 F. 2d 502, a decision of the Court of
Appeals for the District of Columbia, Martin C.J., for the court, wrote, at p. 503:
Possession of land has been defined as the holding of it and exclusive exercise of dominion over it. … As applied to land, the term may be employed in the sense of Occupancy, q.v., with which it is nearly if not quite synonymous, and which has been said to be its ordinary meaning. 31 Cyc. 925
[1114] Canada asserts that if one agrees that those persons entitled under subsection 32(4) were supposed to be placed in the same position ultimately as those persons entitled under the first three subsections of section 32, the underlying tests are the same. The concept of occupancy clearly pertained respecting subsections 32(1), (2) and (3). Canada argues that once Indian title was removed, which it shortly was by reason of treaty, it made more sense to insist upon sufficient indicia of occupancy for subsection 32(4) than to dispense 2007 MBQB 293 (CanLII) with the concept of occupancy for subsections 32(1), (2) and (3).
[1115] While debates in Parliament are not evidence of Parliament’s intent in enacting legislation, it is clear from Macdonald’s speech on May 2, 1870, that he, at least, believed occupancy was required. The Hansard record records
Macdonald’s comment as follows:265
My hon. friend (Hon. Sir George-E. Cartier) reminds me of the question of the confirmation of the legal occupation of the people there. It is so obviously the interest of the people of this country to settle that Territory as quietly as possible, that it would be a most unwise policy for a new Government to create any difficulties as to the rights of property – it would be most unwise to allow those difficulties to arise which might spring from one man having a title to a freehold, while his neighbour would only have to say he held under a lease of occupation. But as these settlers are not numerous, and it is of great importance that they should be satisfied, it is proposed to insert a clause in the Bill, confirming all titles of peaceable occupation to the people now actually resident upon the soil.
[1116] Canada argues that subsection 32(5) is simply recognition that people had certain haying and pasture rights prior to Confederation. This subsection, it asserts, was directed to finding them some compensation for those rights.
265 Exhibit 1-0467, page 1303
(1) Difficulties in acquiring title to subsections 32(3) and (4) lands
[1117] Canada asserts that except for staked claims, the plaintiffs brought little or no evidence to support their contention that titles to be provided pursuant to subsections 32(3) and (4) were hard to have confirmed.
[1118] Canada called Dr. Ens to provide evidence as to the ease with which people could obtain their section 32 patents. It asserts the plaintiffs did little to prove their contention but simply chose to try and limit Dr. Ens’ evidence. 2007 MBQB 293 (CanLII)
Canada submits that there is some evidence that recognition of subsections
32(3) and (4) lands was not difficult and refers to Ens’ Migration and Persistence
Study266 and Ens’ Manitoba Métis Study.267 It says that while the plaintiffs belittled that portion of Dr. Ens’ study, they did nothing to counter it with any evidence of their own except to concentrate on the situation in Ste. Agathe regarding claims by a group of people to both sides of the river.
[1119] Canada argues that the Ste. Agathe situation was unique. People were not claiming that they occupied the east bank but only that they used it for pasture. Canada asserts that that is more of a subsection 32(5) issue than subsection 32(4). And, the outcome of the issue is unknown.
[1120] But, says Canada, to the extent that there was dissatisfaction, it was incumbent upon those people to pursue their dissatisfaction, if any, at the time,
266 Exhibit 35, Appendix 4 267 Exhibit 36, Table 3
not 100+ years later.
(2) Refusal of staked claims and ultimate policy of requiring payment
[1121] Canada asserts that all or nearly all of the staked claims in question were staked between May 12, 1870, the date the Act was passed, and its effective date of July 15, 1870, and were not contemplated by the Act.
[1122] It argues that section 32 was intended only to protect people for lands 2007 MBQB 293 (CanLII) which they “now held”. Accordingly, the act of trying to obtain more land between the time the Act received royal assent (May 12) and the time the Act was proclaimed (July 15) was inconsistent with the intent of Parliament and
Canada was correct in refusing to provide those grants for free.
[1123] Ritchot’s letter of May 18, 1870, to Cartier suggested that the people who were “now in possession” were the ones who should get their lands for free. But there is evidence that upon his return to Red River, Ritchot was involved in leading people to proceed to stake claims prior to July 15, 1870, knowing that that was to become the effective date for transfer.
[1124] Canada submits that in writing his letter of May 23, 1870, Cartier could not have known that which Ritchot was about to do and that he did not intend by his letter to give staked claims for free though Canada acknowledges that it may be arguable by the wording of subsection 32(4) that they were eligible for preemption.
[1125] Whatever the case, Canada asserts that ultimately the staked claims issue
was settled following enactment of Order in Council February 25, 1881,268 and people took the benefit of the settlement. Again says Canada, the plaintiffs cannot raise the issue afresh 100+ years later.
(3) Commutation of the hay privilege in scrip rather than land, and Canada’s failure to render the outer two miles off limits to new settlers
[1126] Canada asserts the plaintiffs complaint about the implementation of 2007 MBQB 293 (CanLII) subsection 32(5) was really:
(1) that settlers outside of the inner parishes should have received land
and not scrip; and
(2) that the outer two miles were not rendered off limits to new
settlers by Orders in Council April 25, 1871, and May 26, 1871, with
the result that new settlers were permitted to settle upon lands
intended to become the fee simple lands of the old settlers.
[1127] Contrary to the plaintiffs’ assertion that there are no documents to support a conclusion that the “hay privilege” was limited to the inner parishes,
Canada asserts that there are documents which support such a conclusion or at least the conclusion that the “hay privilege” was not the same throughout the province.
268 Exhibit 1-1489
[1128] McKeagney and Bétournay, who had been appointed by the Lieutenant
Governor to inquire and report as to the rights of common and rights of cutting hay enjoyed by settlers in the Province of Manitoba, wrote the Lieutenant
Governor on March 6, 1873.269 In that letter, they said they had visited a number of the parishes in the province and had conferred with the leading people therein respecting the several subjects upon which they were to inquire and reported as follows: 2007 MBQB 293 (CanLII)
1. They find that there exist in the Province certain Rights both of Common and of Cutting Hay which have been held and enjoyed by settlers for many years.
These rights, although more as universally claimed throughout Manitoba, vary very much as to their character and as to the extent and manner in which they are held and enjoyed by individuals.
2. The undersigned recommend that a Board or Commission of competent persons should be appointed whose duty it should be to investigate each individual claim which may be made under the Act quieted for the commutation either of the Right of Common or Right of Cutting Hay, and award such compensation to be in full of such claim as may be fair and equitable in the premises.
[1129] Campbell provided a memorandum dated September 2, 1873, which was attached to and contained the recommendations approved and adopted by Order in Council September 6, 1873.270 The Order in Council appointed Bain and
Dubuc to the board or commission created to investigate the individual claims of persons advanced under subsection 32(5) of the Act. As well, Campbell recommended and the Order in Council approved and adopted:
4th. That persons claiming the Right of cutting Hay on the outer 2 miles in those localities in the Province where the privilege was
269 Exhibit 1-0841 270 Exhibit 1-0904
recognized by the old laws of Assiniboia, may be awarded by the Board or Commission compensation in land commencing at the rear of their respective farms and extending outwards, but such compensation in no case to extend beyond the outer 2 miles, or to be wider in extent than the front farm of the claimant, and the lines thereof in all cases to be conformed to the Township Surveys, or, they may at their option, receive scrip to cover an equal quantity of land at the rate of one dollar per acre, such scrip to be redeemable in any unoccupied Dominion land.
5th. That in all other cases where the Right of cutting Hay is established, and in all cases where a claim is established to a Right of Common, within the meaning of the said Clause, the same shall be commuted by an issue of scrip to the claimant as above mentioned.
6th. That with the view to carrying out these regulations the outer 2 2007 MBQB 293 (CanLII) miles in those localities, where the same were recognized by the old Assiniboia Laws as the Hay Privilege, shall be withdrawn from the lands set apart for the Half Breeds, and any deficiency in the latter, caused thereby, shall be made by taking the corresponding quantity from unclaimed Dominion lands upon the rear of the allotment.
[1130] And in December 1873,271 Dennis told the Minister of Justice that the
Council of Assiniboia only recognized the right of cutting hay in certain parishes.
He reported:
Some of the persons so claiming, lie in those parishes where the Hay privilege of the outer two miles was recognized under the Assiniboia law, but which land immediately in the rear of the farms of those applicants was not good hay land and they therefore were obliged to seek their hay in the marshy meadows out on the plains, it may have been from four to twelve miles distant.
Others, again, who claimed to be compensated as being now deprived of this right of cutting Hay on the open Plains, are settlers living in parts of the Province other than the Parishes where the Hay right in rear was acknowledged by the Assiniboia law.
[1131] Canada acknowledges that the practice of cutting hay did not originate with the Council of Assiniboia. But it argues the practice was given the force of law by the Council’s regulations. Canada thus asserts that it is only on that basis
271 Exhibit 1-0929
that one can speak of rights of common and of cutting hay as those phrases are used in the Act.
[1132] The Council’s regulations dealing with hay refer to the two-mile line and the four-mile line.272 Canada submits that the regulations do not prima facie cover the outer parishes where the Taylor Survey (and thus the two-mile and four-mile lines) did not apply. 2007 MBQB 293 (CanLII) [1133] On February 23, 1874, Bain and Dubuc recommended in part:273
9th. That where the outer two miles is not taken up in any way, the owner of each front or River lot in those Parishes where the Rights existed should receive a grant of the land in the outer two miles immediately in rear of his lot, such grant to be in full commutation of all Rights of common and of cutting Hay claimed in respect of the front lot.
[1134] And Morris in his detailed letter of March 18, 1874,274 wrote, in part:
2nd. As I am informed, the right of Common and of Hay cutting in the outer two miles was only recognized in the old Parishes of the District of Assiniboia, which were settled when the permission was granted.
Thus in the Parishes on the Red River I learn the right was recognized in St. Boniface, East and West St. Vital, St. Norbert, that part of St. Agathe up to Salt Springs or Crooked Rapids, St. John’s and Winnipeg, Kildonan, St. Paul, St. Andrews, but not in St. Peter’s. On the Assiniboine in St. James, St. Charles, Headingley, St. Francois Xavier East and West up to Baie St. Paul, which last did not participate therein. I also am informed that it did not prevail in Poplar Point or High Bluff.
3rd. The Parish of Ste. Anne was a recent settlement and did not enjoy the privilege, but its inhabitants claim that they had a right of Hay cutting in a large marshy common in the Parish, which produces large quantities of Hay.
With regard to part of St. Boniface, West St. Vital and St. James, the lots did not in all cases run two miles beyond the inner two miles, but were
272 Exhibit 1-0243, page 4, clauses X and XI 273 Exhibit 1-0956 274 Exhibit 1-0963
cut off by the system of surveys between the two rivers, and ran back till cut off by the River. I learn that the settlers in these Parishes or parts of Parishes so affected were all in the habit of cutting hay in an unoccupied tract, or Common between the Red and Assiniboine Rivers, but this tract now forms part of a half-breed reserve.
[1135] Canada says that while Morris did not cite the source of his information, it
is reasonable to infer that he was relying on the findings of Bain and Dubuc who
had been commissioned to evaluate claims under subsection 32(5) and who had
issued a report February 23, 1874, after studying two parishes in detail. 2007 MBQB 293 (CanLII)
[1136] Canada refers to the plaintiffs’ argument that it is counterintuitive to assume the outer two miles were confined to the inner parishes for if the outer two miles were necessary for the viability of river lots in the inner parishes, so, too, would it be necessary for the viability of lots in the outer parishes.
[1137] In making this argument, the plaintiffs rely on Dr. Flanagan’s statement that “in the densely settled English parishes such as Kildonan, St. Andrews, and
St. Paul’s, many of the farms had been small to start with, and some had been subdivided among children. If the hay privilege was lost, some of the farms would no longer be viable.”275
[1138] But Canada says that on cross-examination, Dr. Flanagan agreed that lots in the less populous outer parishes “were inclined to be larger than their [sic] were in the more crowded inner parishes”.276
275 Exhibit 18, page 150 276 Transcript, volume 17, pages 44 to 45
[1139] In the result, Canada argues that the plaintiffs’ proposition based on
intuition does not necessarily hold up. If, as Dr. Flanagan testified, the outer parishes were inclined to be larger than the more crowded inner parishes, then the argument as to the need for the outer two miles in order to make outer
parish lots viable does not necessarily follow.
[1140] Canada also asserts that McKeagney and Bétournay did not say that there
was an entitlement to hay rights throughout Manitoba. What they said was that 2007 MBQB 293 (CanLII)
hay rights were universally claimed throughout Manitoba. And, of course,
McKeagney and Bétournay described such rights (whether to claim or to
entitlement) as varying very much as to their character and as to the extent and
manner in which they were held and enjoyed by individuals.
[1141] Canada says there is no evidence referred to by the plaintiffs of complaint
by any of the outer parishes that Canada did not commute their hay privilege by
a grant of land.
[1142] While the historic record is not conclusive on this issue, the plaintiffs offer
no evidence to challenge the findings of federal officials who were on the ground
at the time.
[1143] In any event, Canada argues that the question is academic because Order
in Council April 17, 1874,277 awarded a benefit under subsection 32(5) to all
277 Exhibit 1-0978
successful claimants under section 32, not just those in the inner parishes. The
only difference in treatment was that occupants outside the inner parishes were
given scrip, and the scrip was convertible into land.
[1144] As regards the question of entitlement to the outer two miles, Canada
says that when Orders in Council April 25, 1871, and May 26, 1871, were
passed, Canada had not settled on a policy for commutation of the rights of hay
and common. Nor had Canada ascertained the scope of such rights. But, when 2007 MBQB 293 (CanLII)
Canada did decide to grant the actual outer two miles where the outer two miles
were recognized by the Council of Assiniboia, it also undertook by Order in
Council April 17, 1874, to compensate settlers whose outer two miles had been
encroached upon by virtue of the Orders in Council April 25, 1871, and May 26,
1871.
[1145] Canada says the Act did not require the specific lands in rear of the river
lot to be given in commutation. This was recognized in Attorney-General v.
Fonseca (1888), 5 M. R. 173. At p. 182, Taylor C.J., for the court, wrote:
… Sub-section 5 gives no right to any particular land, but merely provides for commutation of rights of common and cutting hay by grants of land, not necessarily the lands, or even part of the particular lands, over which the rights existed. Grants made under that sub-section, both as to the quantity of land, and as to the particular land to be granted, are grants by the grace and favor of the Crown. It was for the Government to say, in each case, what would be the fair and equitable terms of commutation.
[1146] Canada argues that if the exact lands were required to be given, there
would be no reason for the word “adjusting” in subsection (5). Accordingly, the
receipt of scrip which could be located on available Crown lands elsewhere in the
province, in Canada’s submission, was not inconsistent with the Act.
[1147] Indeed, there is evidence (Archibald’s dispatch of December 27, 1870)278 and a memorandum from McMicken to Aikins in February 1872,279 which indicate
that by the dates of those respective documents, the outer two miles were not as lucrative a source of hay as had previously been the case, and that in many
instances hay was being taken from other locations well beyond the outer two 2007 MBQB 293 (CanLII)
miles behind one’s river lot.
[1148] Canada submits that ultimately there is no evidence that anyone suffered
adversely by reason of the scheme Canada developed. For those lot owners
whose outer two miles were impacted by homestead and preemption claims,
scrip was given at the rate of one and one-half times the amount of land so
taken up. Canada submits that that compromise was both reasonable and well
within the discretion given to the Governor General in Council by the Act and
should not be second-guessed today.
(4) Delay
[1149] The plaintiffs complain about delay in the issuance of patents under
section 32. Canada says that even if there were delay, it did not cause deprivation. People were not kept off their lands in the interim. Accordingly, to
278 Exhibit 1-0548 279 Exhibit 1-0690
say that delay forced a person to sell his/her land is difficult to understand.
There is no evidence that people who were claiming lots under section 32 were
being dispossessed by the government while their patents were pending. Thus,
Canada says that if those people chose to sell prior to their patents issuing, it
must have been for reasons unrelated to the fact that they had not yet received
a response to their application for patent.
[1150] As regards the hay privilege, subsection 32(5) expressly authorized the 2007 MBQB 293 (CanLII)
government to ascertain the rights of hay and common before settling the terms
by which they would be adjusted. The section itself contemplated a period of
investigation, as well as policy formulation before grants could begin.
[1151] There is no specific time line for performance set forth in respect of section 32. Canada says that one has to look at the times when assessing the argument of delay. The federal bureaucracy was not the size it is today.
Communication both as to investigations, reports and the receipt of decisions was much more primitive and slow than is the case today. Moreover, there were countless undertakings and competing interests to be dealt with in setting the infrastructure for the operation and development of the new province and from
Canada’s perspective, in continuing its goal of creating and developing a country
to the Pacific. More specifically, such competing interests to be balanced included those under sections 31 and 32 of the Act, the matters to be dealt with pursuant to the remainder of the Act, and public affairs generally.
[1152] As Dr. Flanagan noted in his report,280 once the Cabinet realized that action was necessary, it arrived at a comprehensive policy in about a year and a quarter (January 1873 to April 1874) even though Macdonald’s government fell in this period and a national election was held.
[1153] Implementation of the policy was slowed by the need to resurvey the outer two miles into river lot configuration in those parishes in which the hay privilege was recognized. Headingley and the French parishes were resurveyed 2007 MBQB 293 (CanLII) first and were completed by the end of 1875. The rest of the English parishes were completed approximately one year later.281
[1154] The initial decision to apply the general system of survey to the outer two miles was a reasonable one in the circumstances, given that the Act did not require commutation of the hay right by any specific parcels of land. As well, to the extent that grants of land or scrip under subsection 32(5) would be directed to the actual purpose of cutting hay, one must remember that the right of common still existed, subject to some restrictions282 during the period of policy formulation and implementation. Settlers did not lack access to hay while these details were being worked out.
280 Exhibit 18, page 158 281 Exhibit 18, page 159 282 Exhibit 1-1096
[1155] For these various reasons, Canada submits that it would not be appropriate to issue a declaration of unfulfilled obligations on account of delay regarding section 32.
ANALYSIS
[1156] Section 32 of the Act provides:
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:— 2007 MBQB 293 (CanLII)
(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.
(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.
[1157] The purpose of section 32 is clearly stated in the opening words of the section. As well, clear and broad discretion is given to the Governor General in
Council with respect to the administration and implementation of subsections (4) and (5) of section 32, which included the broad discretion to impose terms and conditions and to pass regulations in that regard.
[1158] The plaintiffs advance no claim under subsections 32(1) and (2) other than for delay. Consequently, no comment is required with respect to those subsections other than on that single issue. 2007 MBQB 293 (CanLII) [1159] As regards subsections (3) and (4), the plaintiffs and Canada essentially agree, and I concur, that the difference between them is as to the status of that land at the time of transfer.
[1160] The land under subsection (3) was located within the Settlement Belt, where by reason of the Selkirk Treaty, Indian title had been extinguished.
Consequently the land fell under the authority of the HBC and the subsection spoke to occupancy with the sanction of the HBC.
[1161] The lands referred to in subsection (4), however, were outside the
Settlement Belt and hence in an area of the Province where Indian title had not been extinguished. Accordingly, neither the HBC nor Canada could deal with that land, including sanctioning titles to it without addressing the existence of
Indian title.
[1162] When the Act was passed and at its effective date, the land described in subsection (3) had at least been subject to the authority of the HBC, whereas
the land under subsection (4) was not subject to the governing authority of the
HBC or Canada.
[1163] Of necessity, things had to be done in order for implementation to occur, more in some instances than in others, depending upon the status of the land and the need to accommodate the interests of all who claimed entitlement under section 32. 2007 MBQB 293 (CanLII) [1164] Clearly Parliament recognized this and the fact that such things would occur over time. Hence, section 32 so provided and the usual vehicle through which to proceed, namely, through the Governor General in Council, was proscribed. As I will shortly write, the implementation which would occur over time fell within the discretion of Canada via the Governor General in Council.
[1165] There are complaints advanced by the plaintiffs in respect of the implementation of section 32 which in light of conclusions I have already reached in this judgment need no further consideration, and in my view are without merit in the circumstances of this case.
[1166] For example, there is much reference in the plaintiffs’ argument to the fact that certain of the regulations passed in respect of, and the implementation of subsections 32(3) and (4) were contrary to representations made, and more particularly to the agreement reached between the Red River delegates and
Macdonald and Cartier.
[1167] Clearly, representations and assurances were given both prior to the
negotiations which led to passage of the Act and during those discussions. But
as I have already concluded, there was no agreement reached. There was an
Act of Parliament, the Act. That which may have proceeded was clearly
subsumed by the Act and the purpose and meaning of section 32 must be determined from the language of the Act and the section itself.
[1168] As well, the plaintiffs argue that there was a fiduciary duty owed to the 2007 MBQB 293 (CanLII)
settlers entitled under section 32 and, as well, that Canada failed to adequately
consult with and accommodate the concerns of the old settlers in respect of their
desire to preserve intact their land holdings, including the hay privilege lands,
which amounted to a breach of the honour of the Crown. The basis of both
arguments is that most of the settlers were Métis.
[1169] I disagree. Just as I have found that there was no fiduciary duty owing
nor implication of the honour of the Crown in respect of the section 31 grant,
neither existed here.
[1170] The provisions of section 32 did not apply to the Métis as Métis, but it
applied to all settlers. Its purpose had nothing to do with the aboriginality of the
Métis, but was simply to quiet titles and assure the retention of lands by all
residents of Red River who had held such land prior to transfer.
[1171] The question for determination is whether Canada complied with its
statutory obligations under section 32 of the Act.
[1172] The plaintiffs refer to Dennis’ memorandum of March 4, 1876,283 and assert that there and in other instances where he was providing direction or instruction as to the interpretation and administration of subsections 32(3) and
(4) and in particular as to what would be required to qualify a claimant for patent, Dennis’ comments were coloured by his understanding that “occupation” was only established by the presence of “really valuable improvements.” Based upon the evidence, it is my view that this proposition is incorrect, or at the very 2007 MBQB 293 (CanLII) least highly doubtful.
[1173] It appears from the evidence that the phrase “really valuable improvements” did not come from Dennis, but from the Minister of the Interior and/or the Governor General in Council.
[1174] The first reference made by Dennis to the phrase “really valuable improvements” is found in his reply to Codd dated October 24, 1877,284 more
than 18 months after the March 4, 1876 memorandum. In the October 24, 1877
letter, Dennis wrote:
The subject alluded to in your telegram of the 22 inst has received consideration at the hands of the Minister.
It is inexpedient to indicate to you by wire the Minister’s views in the matter, on account of the expense involved. I am therefore to proceed to inform you by letter.
The Minister is of opinion that without some really valuable improvements have been made upon the lands severally claimed which latter it is assumed come under Class No. 2 described in the Order in Council of the
283 Exhibit 1-1166 284 Exhibit 1-1312
20th Apr 1876, the parties claiming are not entitled to favourable consideration.
[1175] In the Order in Council April 20, 1876, the second class of claims is
described as follows:
2. Lands alleged to have been taken up, but which were not surveyed as above or occupied, but merely marked out by the claimants, by stakes, prior to the 15th July, 1870.
[1176] As regards that second class of claims, the Order in Council stated:
The second class the Minister submits are not entitled to consideration. 2007 MBQB 293 (CanLII)
He remarks that the mode proposed of dealing with the above two classes is consistent with the opinion of the Honourable the Minister of Justice in respect of such claims.
[1177] In my view, there is no evidence to support the plaintiffs’ assertion, at
least until approximately October 24, 1877, that comments of Dennis concerning
the requirements necessary to qualify a claimant for patent under subsection
32(4) were coloured by his understanding that “occupation” was only established by the presence of “really valuable improvements.” Further, any such colouring,
if it did exist, was the result of direction from the Minister of the Interior,
wherein lay the authority as a member of Cabinet to set the terms and
conditions under subsection 32(4).
[1178] Other arguments advanced by the plaintiffs having to do with a
misapprehension by Canada of what had been the usage of the country
respecting the use of surveyors, the mode of taking possession, and the
requirement by Canada for evidence of improvements, in my view, are without
merit given the discretion afforded Canada under subsection (4).
[1179] In my opinion, Canada was entitled to require some degree of occupation
for the existence of peaceable possession. As a proposition of law, that was, at
least arguably, sound and Canada was permitted to do so under the discretion
given by the Act. If its exercise of discretion was carried out in good faith, and there is no allegation to the contrary, it surely cannot be challenged, certainly at
this late date.
[1180] Canada asserts that most of the staked claims arose between May 12, 2007 MBQB 293 (CanLII)
1870, the date the Act was passed, and July 15, 1870, the date it became
effective. It refers to the opening provision of section 32 and says that that
section was intended only to protect people for lands which they “now held.”
The act of trying to obtain more land in the intervening period of May 12 to
July 15, 1870, was, Canada argues, inconsistent with the intent of Parliament
and Canada was correct in refusing to provide those grants for free.
[1181] Canada refers to Ritchot’s letter of May 18, 1870, to Cartier which
prompted Cartier’s response of May 23, 1870, in respect of the subsection 32(4)
lands. In his letter, Ritchot suggested that the people who were “now in
possession” should get their lands for free. Cartier could not have known when
he responded on May 23 that Ritchot was about to counsel or participate with
people to proceed to stake claims prior to July 15, 1870, knowing as he did that
that was to become the effective date for transfer. While Canada acknowledges
that it may be arguable by the wording of subsection 32(4) that such claimants
would be eligible for pre-emption, it asserts that in the circumstances it cannot
be taken as intended by Parliament or for that matter, by Cartier that such people would receive their land for free.
[1182] I must say that I find Canada’s argument on this point attractive. In any event however, this, in my view, is clearly another matter that falls within
Canada’s discretion in setting the terms and conditions respecting the land described in subsection 32(4). 2007 MBQB 293 (CanLII) [1183] As regards the hay privilege, the plaintiffs assert that there are no documents to support a conclusion that the “hay privilege” was limited to the inner parishes. To agree with that would be to ignore Morris’ letter of March 18,
1874.285
[1184] Moreover, the regulations of the Council of Assiniboia dealing with hay refer to the two-mile line and the four-mile line. The former would of course only have existed within those parishes where the Taylor Survey applied.
[1185] The plaintiffs have taken issue with the fact that in implementing section
32, Canada did not in all instances provide grants of land but rather provided scrip, particularly in the commutation of certain hay privileges.
[1186] In my view, when one considers the language of subsection 32(5) and of section 33 of the Act, Canada was entitled to do so. Subsection 32(5) clearly contemplated regulations from time to time providing for the ascertaining and
285 Exhibit 1-0963
adjusting of the rights of common and of cutting hay and while the language
called for commutation by grants of land, section 33 authorized the Governor
General in Council to settle and appoint the mode and form of grants of land.
Canada’s decision to grant scrip in lieu of land or to attach other conditions was,
in my view, fully within the discretion provided to it under the Act.
[1187] The plaintiffs have as well complained with respect to all of section 32
regarding delay in its implementation. There is no question that the 2007 MBQB 293 (CanLII)
implementation of section 32 took a considerable period of time. In some
respects, as I said in respect of section 31, it is difficult to understand why such
a delay occurred. However, it is my view that without evidence from those on
the ground at the time involved in the implementation of section 32 and at this
late date it would be dangerous to reach any conclusion on that subject. While it
is true that the documents tell a story, they do not tell a complete story. By that
I mean it would have been exceedingly helpful, and without it, in my view, risky
to reach a conclusion on the issue of delay without receiving evidence which
might explain the delay. Obviously, the world is very different today than it was
at the time. The bureaucracy is much larger than it was then. Technology is much improved. The speed with which things are capable of being done is much
greater. In my view, it is not appropriate to pass judgment on this issue in 2007
in respect of matters that occurred 125 years ago.
[1188] At the very least, it is not something which, in my view, should give rise to
declaratory relief.
CONCLUSION
[1189] The plaintiffs’ claim is not one for individual relief. Nor is it one for
compensation whether by way of land or money. Rather it is a claim for
declaratory relief.
[1190] The specific declarations sought are set forth in the introduction to this judgment. Their purpose is to assist the plaintiffs in subsequent negotiations 2007 MBQB 293 (CanLII) with Canada and Manitoba to achieve a land claims agreement and thereby fulfill
the plaintiffs’ stated goal of obtaining a land base for the Métis in Manitoba.
[1191] The law is clear that declaratory relief is equitable relief and is a
discretionary remedy within the power of the court.
[1192] I do not propose to undertake a detailed explanation of the issues which
would have been necessary and appropriate for consideration in determining
whether or not to exercise my discretion and grant the declaratory relief sought
for, as I have stated in the introduction to this judgment, the plaintiffs’ action for
the declarations sought is dismissed in its entirety.
[1193] That is not to diminish the role of the Métis in the exploration,
development or life of the Red River Settlement, or of the area that preceded its
creation, or of the Province of Manitoba as at July 15, 1870 and to the present day. The Métis have been essential participants and have made significant contributions throughout.
[1194] Indeed, the plaintiffs may be able to negotiate a land claims agreement with Canada and Manitoba and thereby achieve their expressed goal of obtaining a land base for the Métis in Manitoba. That is as may be and as the future will unfold.
[1195] But a lawsuit is decided on legal principles, not political considerations, applied not in a vacuum, but to a set of facts found upon evidence adduced at trial. 2007 MBQB 293 (CanLII)
[1196] In my opinion, the facts of this case cause me to conclude that as a matter of law the plaintiffs’ claim is fundamentally flawed.
[1197] It seeks relief that is in essence of a collective nature, but is underpinned by a factual reality that is individual.
[1198] At the relevant time, the Métis did not live in a communal or collective setting. True, they lived more or less together in parishes, the common connection being religion, language and culture.
[1199] But they held land on an individual basis and were able to and did sell, buy and otherwise deal with their land as did as any other individual, but
Indians.
[1200] Sections 31 and 32 of the Act by their language clearly provided for individual grants, and section 32 was not directed at the Métis qua Métis, but to landholders in the area that became Manitoba.
[1201] Given the factual basis for this litigation, I fail to understand how the plaintiffs can now seek collective entitlement to a land base, something they did not enjoy or seek to enjoy at the material time.
[1202] There is nothing in the evidence to suggest that Canada ever discussed or contemplated the creation of a land base for the Métis at the time. Nor is there anything in the language of section 31 or 32 which speaks of or from which one could infer that a land base was intended. 2007 MBQB 293 (CanLII)
[1203] Indeed, in my view, the evidence is otherwise.
[1204] In fact, as I have previously stated in my reasons, plaintiffs’ counsel conceded that the best the Métis could have hoped for at the time was the opportunity for creation of a land base. But that would only have occurred had
Canada been able to encumber or entail the section 31 grants (which in its discretion it decided not to do and which the then Métis-dominated Manitoba
Legislative Assembly expressly did not want) and if the Métis had been able to persuade the grant recipients not to sell their grants once received.
[1205] As I have concluded, the Métis did not hold aboriginal title to the land in question, no fiduciary obligation existed and no fiduciary duty was owed by
Canada to the Métis in respect of the land under section 31 or under section 32, which was simply a quieting of titles section, as it states.
[1206] Rather, the duty owed by Canada under these sections was simply a
public law duty. And, the language of section 31 and subsections 32(4) and (5)
gave Canada a broad discretion in the fulfillment of that duty.
[1207] It is clear that the grants under both sections were not implemented or
administered without error or dissatisfaction.
[1208] The section 31 grant left 993 persons entitled under the section without 2007 MBQB 293 (CanLII) land and with scrip instead. And there was lengthy delay in the implementation of the grants under both sections. But there was little complaint from those on the ground at the time, albeit I am satisfied that the Métis and particularly their leaders were aware of the rights given to them under the Act. And with the exception of one person, Robert Lang, an employee of Canada within the
Department of the Interior who was found to have advanced patent requests for favours in the early 1880s, there is no evidence of misconduct or bad faith on the part of any politician or civil servant throughout.
[1209] Indeed, there is no claim of dishonesty, sharp dealing or bad faith attributable to the defendants in the claim as advanced.
[1210] While clearly less than perfect, the evidence does establish that Canada distributed more than 1.4 million acres to the children of the half-breed heads of families as required under section 31, taking care to consult the Métis as to the location of the reserves. As well, following allocation of the entire grant, Canada
gave $240 scrip notes to those children who should have received land under the
grant.
[1211] In addition, after excluding the heads of half-breed families from sharing in the 1.4 million acre grant, as the Act required, Canada thereafter passed legislation which gave the heads of families, both men and women, an ex gratia
grant of $160 scrip. 2007 MBQB 293 (CanLII) [1212] As well, Canada did grant patents under subsections 32(1) to (4) of the
Act consistent with its interpretation of its obligations thereunder. Those claims
which it interpreted not to come within the language of those subsections were
resolved with a combination of special grants and sales at concessionary prices.
Further, Canada settled the rights of hay and common provided for under
subsection 32(5) of the Act by land grants and/or the grants of scrip.
[1213] The point is, that while clearly less than perfect, the grants were made
with little in the way of complaints and no proceedings commenced.
[1214] In my view, this is a case where the court should be guided by the
comments of the Supreme Court of Canada in Blais when interpreting the Act.
At para. 17 of Blais, after commenting that a constitutional document (which the
Act is) must be read generously, the Court referred to R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295 at 344, and wrote:
At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the [constitutional
provision] was not enacted in a vacuum, and must therefore … be placed in its proper linguistic, philosophic and historical contexts.
[1215] As well, I am mindful of the words of Binnie J., writing for the majority of the Supreme Court in R. v. Marshall, [1999] 3 S.C.R. 456. Although his comments were made in the context of treaty interpretation, not statutory interpretation, as is the case here, it is my view that his words are apposite to the circumstances of this case. He wrote, at para. 14:
“Generous” rules of interpretation should not be confused with a vague 2007 MBQB 293 (CanLII) sense of after-the-fact largesse.
[1216] The plaintiffs’ action is dismissed.
______J.
APPENDIX
AUTHORITIES by the Plaintiffs
Cases:
A.G. Can. v. Hallett and Carey, [1952] A.C. 427 (J.C.P.C.) A.G. Can. v. Western Higbie, [1945] 3 D.L.R. 1 (S.C.C.) A.G. Manitoba v. Forrest (1979), 101 D.L.R. (3d) 385 (S.C.C.) Abitibi Power v. Montreal Trust, [1943] A.C. 536 (J.C.P.C.) 2007 MBQB 293 (CanLII) Air Canada v. B.C., [1986] 2 S.C.R. 539 Amax Potash v. Government of Saskatchewan, [1977] 2 S.C.R. 576 Angle v. Minister of National Revenue (1974), 47 D.L.R. (3rd) 544 (S.C.C.) Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3, 2000 SCC 1 B.C. (A.G.) v. Canada (A.G.), [1994] 2 S.C.R. 41 Blueberry River Indian Band v. Canada, [1995] 4 S.C.R. 344 British Columbia v. Canadian Forest Products Ltd., [2004] 2 S.C.R. 74, 2004 SCC 38 Calder v. A.G.B.C. (1973), 34 D.L.R. (3d) 145 (S.C.C.) Canada v. P.E.I. (1977), 83 D.L.R. (3d) 492 (F.C.A.) Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.) Chippewas of Sarnia v. Canada (2000), 195 D.L.R. (4th) 135 (Ont. C.A.) Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 Delgamuukw v. B.C., [1999] 3 S.C.R. 1010 Di Iorio v. Warden of Montreal Jail, [1978] 1 S.C.R. 152 Dumont v. Canada (Attorney General) (1987), 48 Man.R. (2d) 4 (Q.B.) Dumont v. Canada, [1988] W.W.R. 193 (Man. C.A.) Dumont v. Canada, [1990] 1 S.C.R. 279 Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302 Fidelitas Shipping Co. Ltd. v. V/O Exportchleb, [1965] 2 All E.R. 4 (H.L.)
Fillion v. Degen (2005), 195 Man.R. (2d) 2 (C.A.) Follis v. Albemarle, [1941] 1 D.L.R. 178 (Ont. C.A.) Forrest v. A.G. Manitoba, [1979] 4 W.W.R. 229 (Man. C.A.) Granovsky v. Canada, [2000] 1 S.C.R. 703, 2000 SCC 28 Guerin v. The Queen, [1984] 2 S.C.R. 335 Haida Nation v. B.C. (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 Hodgkinson v. Simms, [1994] 3 S.C.R. 3 Jones v. A.G.N.B., [1975] 2 S.C.R. 182
Krangle v. Brisco, [2002] 1 S.C.R. 205. 2002 SCC 9 2007 MBQB 293 (CanLII) Labrador Company v. The Queen, [1893] A.C. 104 (J.C.P.C.) Lalonde v. Ontario (2001), 56 O.R. (3d) 505 (C.A.) M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 M.D. Sloan v. Derrickson (1991), 61 B.C.L.R. (2d) 370 (B.C.C.A.) Mahe v. Alberta, [1990] 1 S.C.R. 342 Manitoba Language Reference (1985), 19 D.L.R. (4th) 1 (S.C.C.) Maynard v. Maynard, [1951] S.C.R. 346 Mikisew Cree First Nation v. Canada, [2005] 3 S.C.R. 388, 2005 SCC 69 Minister of Justice v. Borowski, [1981] 2 S.C.R. 575 Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 Nowegijick v. The Queen, [1983] 1 S.C.R. 29 Ohio v. U.S., 880 F.2d 432 U.S. App. D.C. (1989) Ontario Mininig v. Seybold, [1903] A.C. 73 (J.C.P.C.) Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 Opetchewsaht Indian Band v. Canada, [1997] 2 S.C.R. 119 Osoyoos Indian Band v. Town of Oliver, [2001] 3 S.C.R. 746. 2001 SCC 85 Penvidic v. International Nickel, [1976] 1 S.C.R. 267 R. v. Adams, [1996] 3 S.C.R. 101 R. v. Badger, [1996] 1 S.C.R. 771 R. v. Beaulac, [1999] 1 S.C.R. 768 R. v. Blais (2001), 198 D.L.R. (4th) 220 (Man. C.A.) R. v. Blais (2003), 230 D.L.R. (4th) 220 (S.C.C.)
R. v. Marshall, [1999] 3 S.C.R. 456 R. v. Morgentaler, [1993] 3 S.C.R. 463 R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43 R. v. Simon, [1985] 2 S.C.R. 387 R. v. Sioui, [1990] 1 S.C.R. 1025 R. v. Sparrow, [1990] 1 S.C.R. 1075 R.J.R. v. Canada (A.G.), [1995] 3 S.C.R. 199 Re Upper House, [1980] 1 S.C.R. 54 Re: Mathers (1891), 7 Man.R. 434 (Q.B.)
Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839 2007 MBQB 293 (CanLII) Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Sawridge Band v. Canada, [2000] F.C.J. No. 749 (F.C.T.D.); affd. [2001] F.C.J. No. 1683 (F.C.A.) Spooner Oils v. Turner Valley Gas Conversation Board, [1933] S.C.R. 629 St. Catherine’s Milling v. The Queen (1888), 14 App. Cas. 46 (J.C.P.C.) Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 Thorson v. A.G. Canada, [1975] 1 S.C.R. 138 Toronto (City) v. C.U.P.E., [2003] 3 S.C.R. 77, 2003 SCC 63 Vriend v. Alberta, [1998] 1 S.C.R. 493 Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211 (Ont. C.J.); affd. [1994] O.J. No. 2792 (Ont. C.A.) Wewaykum v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79 Wood v. Grand Valley Railway, [1915] 22 D.L.R. 614 (S.C.C.)
Texts:
Hogg, Peter W., Constitutional Law of Canada, (Loose-leaf Ed.), pp. 16-4 to 16- 8, 27-19 to 27-20
Laskin, Canadian Constitutional Law, (Fifth Ed., Finkelstein), pp. 68-69
Snell, Principles of Equity, (Twenty-ninth Ed., Baker and Langan), pp. 213, 294
AUTHORITIES by Canada
Cases:
A.(C.) v. Critchley (1993), 166 D.L.R. (4th) 475 (B.C.C.A.) A.G. Alberta v. A.G. Canada, [1947] A.C. 503 (H.L.) Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264 (C.A.) Apotex Inc. v. Merck and Co., [2002] F.C.J. No. 811, 2002 FCA 210 2007 MBQB 293 (CanLII) (The) Attorney-General v. Fonseca (1888), 5 M.L.R. 173 (Man. C.A.) Attorney General of Canada v. Inuit Tapirisat of Canada et al, [1980] 2 S.C.R. 735 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 Bank of America Nat’l Trust & Sav. Asso. v. Bank of Amador County (1933), 28 P.2d 86, 135 Cal. App. 714 (Cal. C.A.) Barlow v. Canada, [2000] F.C.J. No. 282 (T.D.) Benoit v. Canada, [2003] F.C.J. No. 923, 2003 FCA 236 Bentley v. Peppard Estate (1903), 33 S.C.R. 444 Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58 British Columbia (A.G.) v. Canada (A.G.), [1994] 2 S.C.R. 41 Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 Callihoo v. Canada (Minister of Indian Affairs & Northern Development), [2006] A.J. No. 3, 2006 ABQB 1 Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 Cherokee Nation v. Georgia (1831), 30 U.S. 1 Chingee v. British Columbia, [2005] B.C.J. No. 1961, 2005 BCCA 446 Clark v. Canada, [1995] F.C.J. No. 402 (Fed. C.A.) Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3 Corp. of Canadian Civil Liberties Assn. v. Canada (Attorney General), [1990] O.J. No. 1481, 74 O.R. (2d) 609 (H.C.J.)
Daniels v. Canada (Minister of Indian Affairs and Northern Development), [2002] F.C.J. No. 391, 2002 FCT 295 Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 David Suzuki Foundation v. British Columbia, [2004] B.C.J. No. 943, 2004 BCSC 620 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Dumont v. Canada (Attorney General), [1987] M.J. No. 108, 48 Man.R. (2d) 4 (Q.B.) Dumont v. Canada (Attorney General), [1988] M.J. No. 327 (C.A.) Dumont v. Canada, [1990] 1 S.C.R. 279 E.D.G. v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52 2007 MBQB 293 (CanLII) Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501 (C.A.) Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (T.D.) Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 First Nations of Saskatchewan v. Canada (Attorney General), [2002] F.C.J. No. 1324, 2002 FCT 1001 Fonseca v. The Attorney General (1889), 17 S.C.R. 613 Frame v. Smith, [1987] 2 S.C.R. 99 Girardet v. Crease & Co., [1987] B.C.J. No. 240 (B.C.S.C.) Guerin v. Canada, [1984] 2 S.C.R. 335 Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 Hogan v. Newfoundland (A.G.), [2000] N.J. No. 54, 2000 NFCA 12 Hosmer v. Wallace (1878), 24 L. Ed. 1130, 97 U.S. 575 (U.S.S.C.) Johnson v. M’Intosh (1831), 21 U.S. 543 Kruger v. The Queen, [1986] 1 F.C. 3 (C.A.) Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 Larence v. Larence (1911), 21 M.L.R. 145 (Man. Q.B.) Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120, 2000 SCC 69 M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 M.M. v. Roman Catholic Church of Canada, [2001] M.J. No. 401, 2001 MBCA 148
Manitoba Society of Seniors Inc. v. Canada (Attorney General), [1992] M.J. No. 336, 76 Man.R. (2d) 232 (C.A.) Maurice v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. No. 1962 (T.D.) Mazzeo v. Ontario, [1996] O.J. No. 1021 (Ont. Ct. J.) Minott v. O’Shanter Development Co., [1999] O.J. No. 5, 42 O.R. (3d) 321 Mitchell v. Canada (Minister of National Revenue – M.N.R.), [2001] 1 S.C.R. 911, 2001 SCC 33 Moore v. Boyd (1930), 39 F.2d 502, 59 App. D.C. 252 (D.C.C.A.) Native Council of Nova Scotia v. Canada, [2002] F.C.J. No. 4, 2002 FCT 6 Norberg v. Wynrib, [1992] 2 S.C.R. 226 2007 MBQB 293 (CanLII) (The) Nova Scotia Board of Censors (also known as the Amusements Regulation Board of Nova Scotia) and the Attorney General of Nova Scotia v. Gerard McNeil, [1976] 2 S.C.R. 265 Novak v. Bond, [1999] 1 S.C.R. 808 Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327 Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 Papaschase Indian Band No. 136 v. Canada, [2004] A.J. No. 999, 2004 ABQB 655 Pharmaceutical Society of Great Britain v. Dickson, [1970] A.C. (11th) 403 (H.L.) Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co. (C.A.), [1991] 1 F.C. 129 (C.A.) Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [1958] 1 Q.B. 554 (Eng. C.A.) Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 149 R. v. Badger, [1996] 1 S.C.R. 771 R. v. Blais, [2001] M.J. No. 168, 2001 MBCA 55 R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44 R. v. Howard, [1994] 2 S.C.R. 299 R. v. Marshall, [1999] 3 S.C.R. 456 R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 R. v. Morgentaler, [1993] 3 S.C.R. 463
R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43 R. v. Sioui, [1990] S.C.R. 1025 R. v. Van der Peet, [1996] 2 S.C.R. 507 Reference Re British North America Act, 1867 (U.K.), s. 91, [1939] S.C.R. 104 Reference Re Motor Vehicle Act (British Columbia), s. 94(2), [1985] 2 S.C.R. 486 Reference re: Powers of Disallowance and Reservation, [1938] S.C.R. 71 Regina v. Taylor & Williams, [1981] 62 C.C.C. (2d) 227 (Ont. C.A.) Roncarelli v. Duplessis, [1959] S.C.R. 121 2007 MBQB 293 (CanLII) Russian Commercial & Industrial Bank v. British Bank for Foreign Trade, [1921] 2 A.C. 438 (H.L.) Sena v. United States (1903), 23 S. Ct. 596, 189 U.S. 233 (U.S.S.C.) Solosky v. The Queen, [1980] 1 S.C.R. 821 T.L.B. v. R.E.C., [2000] M.J. No. 434, 2000 MBCA 83 Tacan v. Canada, [2005] F.C.J. No. 497, 2005 FC 385 Thorne’s Hardware Ltd. v. Canada, [1983] 1 S.C.R. 106 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138 W.R.B. v. Plint, [2003] B.C.J. No. 2783, 2003 BCCA 671 Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79 Worcester v. Georgia (1832), 31 U.S. 515
Statutes:
An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia, S.C. 1874, c. 21
British Columbia Terms of Union (Order of Her Majesty in Council admitting British Columbia into the Union) (May 16, 1871)
Constitution Act, 1930 (British North America Act, 1930), 20-21 George V c. 26 (U.K.)
The Court of Queen’s Bench Act, C.C.S.M. c. C280, section 34
Newfoundland Act (British North America Act, 1949), 12-13 George VI, c. 22 (U.K.)
Prince Edward Island Terms of Union (Order of Her Majesty in Council Admitting Prince Edward Island into the Union) (June 26, 1873)
AUTHORITIES by Manitoba
Cases:
2007 MBQB 293 (CanLII) A.G. for the Dominion of Canada v. A.G. for the Provinces of Ontario, Quebec and Nova Scotia, [1898] A.C. 700 (P.C) A.G. of British Columbia v. A.G. of Canada, [1889] 14 A.C. 295 (P.C.) Barber v. Proudfoot, [1889] Western Law Times 144 (Man. Q.B.) Barrett v. Logan, [1892] A.C. 445 (P.C) Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 British Columbia (A.G.) v. Canada (A.G.); An Act Respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41 Brophy v. Attorney General of Manitoba, [1895] A.C. 202 (P.C.) Calgary & Edmonton Land Co. v. Attorney General of Alberta (1911), 45 S.C.R. 170 Canada (Attorney General) v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206 Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 Chingee v. Canada (Attorney General), 2005 BCCA 446, leave to appeal denied [2005] S.C.C.A. No. 515 Citizens Insurance Co. of Canada v. Parsons, [1881-1885] All E.R. Rep. 1179 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.) Hardy v. Desjarlais (1892), 8 M.R. 550 (Q.B. en banc) In Re Certain Statutes of the Province of Manitoba Relating to Education (1893), 22 S.C.R. 577
Kennett v. Attorney General Manitoba (1998), 129 Man.R. (2d) 244 (C.A.) Kitkatla v. British Columbia, [2002] 2 S.C.R. 146, 2002 SCC 31 Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67 Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37 M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 Mahe v. Alberta, [1990] 1 S.C.R. 342 Nova Scotia (Board of Censors) v. McNeil, [1978] 2 S.C.R. 662 Ontario Public Service Employees’ Union v. Ontario (A.G.), [1987] 2 S.C.R 2 2007 MBQB 293 (CanLII) Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, 2001 SCC 85 Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co. (C.A.), [1991] 1 F.C. 129 (C.A.) R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44 R. v. Marshall, [1999] 3 S.C.R. 456 R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 (headnote only) Re Eskimos, [1939] S.C.R. 104 Re Mathers (1891), 7 Man.R. 434 (Q.B. en banc) Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 526 Reference Re Legislative Authority of the Parliament of Canada in Relation to the Upper House, [1980] 1 S.C.R. 54 Reference re Motor Vehicle Act (British Columbia) s. 94(2), [1985] 2 S.C.R. 486 Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 Reference Re Same Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31 Robinson v. Sutherland (1893), 9 M.R. 199 (Q.B.)
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13 Siemens v. Manitoba (A.G.), [2003] 1 S.C.R. 6, 2003 SCC 3 Sinclair v. Mulligan, [1886] Man. L.R. 481 (Q.B.) Smith v. Rural Municipality of Vermilion Hills (1914), 49 S.C.R. 563 Smith v. Vermillion Hills Rural Council, [1916] 2 A.C. 569 Southern Alberta Land Co. v. Rural Municipality of McLean (1916), 53 S.C.R. 151 St. Catherines Milling and Lumber Company v. The Queen (1888), 14 A.C. 46 Sutherland v. Thibeaudeau, Queen’s Bench, March 28, 1879; Provincial 2007 MBQB 293 (CanLII) Archives of Manitoba, File 55, Aisle B, Bay 15, Shelf 5, Box, 5, Temp. Box 1 Vriend v. Alberta, [1998] 1 S.C.R. 493 Ward v. Canada (A.G.), [2002] 1 S.C.R. 569, 2002 SCC 17 Wells v. Newfoundland, [1999] 3 S.C.R. 199 Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC
Secondary Sources:
V. Di Castri, The Law of Vendor and Purchaser: The Law and Practice Relating to Contracts for Sale of Land in the Common Law Provinces of Canada, 2nd ed. (Toronto: Carswell, 1976) A. Morris, The Treaties of Canada with the Indians of Manitoba and the North- West Territories (Calgary: Fifth House, 1991) (excerpt)
M.P. Furmston, Cheshire, Fifoot and Furmston’s law of contract, 14th ed. (London: Butterworths, 2001) (excerpt)
N. Finkelstein, ed., Laskin’s Canadian Constitutional Law, 5th ed. (Toronto: Carswell, 1986) (excerpt)
P.W. Hogg, Constitutional Law of Canada, 4th ed. (looseleaf) (Toronto: Carswell, 1997) (excerpt)
G. Mew, The Law of Limitations, 2nd ed. (Markam: Butterworths, 2004)
D.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
OTHER AUTHORITIES
Cases:
Brophy v. Manitoba (Attorney General), [1895] A.C. 202 Chippewas of Sarnia Band v. Canada (A.G.) (2001), 51 O.R. (3d) 641 (C.A.) Morgan v. Prince Edward Island (Attorney General), [1976] 2 S.C.R. 349 Papaschase Indian Band No. 136 v. Canada, [2004] A.J. No. 999, 2004 ABQB 655 2007 MBQB 293 (CanLII) Reference re Provincial Court Judges, [1997] 3 S.C.R. 3 Reference re Term “Indians”, [1939] S.C.R. 104 Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816, 2002 SCC 54 Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13 Stoney Band v. Canada, [2005] F.C.J. No. 33, 2005 FCA 15 The Labrador Métis Nation v. Her Majesty in Right of Newfoundland and Labrador, 258 Nfld. & P.E.I.R. 257, 2006 NLTD 119 Walter v. Alberta (Attorney General), [1969] S.C.R. 383
Federal Statutes:
Dominion Lands Act, S.C. 1872, c.23, sec. 108
An Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, Chapter 3, and to amend section 108 of the Dominion Lands Act, S.C. 1873, c.38
An Act respecting the Appropriation of Certain Dominion Lands in Manitoba, S.C. 1874, c.20
An Act to amend “An Act respecting the appropriation of certain Lands in Manitoba”, S.C. 1875, c.52
An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c.53
An Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879, c.32
An Act for the final Settlement of Claims to Lands in Manitoba by Occupancy under the Manitoba Act, S.C. 1880, c.7
An Act to extend the Limitation of Time for the Final Settlement of Claims in Manitoba by Occupancy, S.C. 1884, c.26
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c.4
2007 MBQB 293 (CanLII)
Statutes of Manitoba:
The Half-Breed Land Grant Protection Act, S.M. 1873, c. 44 (37 Victoria)
An Act to Amend c. 46* Vict. 37, entitled The Half-Breed Land Grant Protection Act, S.M. 1875, c. 37 (Victoria) *should be chapter 44. This is a typo in original statute
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 (40 Victoria)
An Act to authorize the Consolidation of the General Statutes of the Province of Manitoba, S.M. 1878, c. 2 (41 Victoria)
An Act Respecting Infants and their Estates, S.M. 1878, c. 7 (41 Victoria) An Act to Enable Certain Children of Half-Breeds Heads of Family to Convey Their Land, S.M. 1878, c. 20 (41 Victoria)
An Act to Amend the Act entitled: An Act to Enable Certain Children of Half- Breed Heads of Families to Convey Their Land, S.M. 1879, c. 11 (42 Victoria)
An Act to Amend the Act entitled: An Act Respecting Infants and their Estates, S.M. 1879, c. 27 (43 Victoria)
An Act Respecting the Consolidated Statutes of Manitoba, S.M. 1879, c. 9 (42 Victoria)
An Act Respecting Half-Breed Lands, C.S.M. 1880, c. 42
An Act to Amend Certain of the Acts forming parts of the Consolidated Statutes of Manitoba, C.S.M. 1880-1881, c. 11, ss. 61-62
An Act Respecting Half-Breed Lands and Quieting Certain Titles Thereto, S.M. 1881, c. 19 (44 Victoria)
An Act to Explain Certain Portions of the Half-Breed Lands Act*, S.M. 1883, c. 29 *see: C.S.M. 1889, c. 42
An Act to Explain and amend Chapter Eleven of 44 Victoria (3rd Session), S.M. 1883, c. 10 (46 & 47 Victoria)
An Act Concerning Decrees and Orders on the Equity Side of the Court of 2007 MBQB 293 (CanLII) Queen’s Bench, Manitoba, S.M. 1884, c. 8 (47 Victoria)
An Act to Amend c. 42 of the Consolidated Statutes of Manitoba, Being an Act Respecting Half-Breed Lands, S.M. 1884, c. 24 (47 Victoria)
An Act to Vest Securities Held for Half-Breed Infants in the Treasurer of this Province, S.M. 1884, c. 25 (47 Victoria)
An Act Relating to the Titles of Half-Breed Lands, S.M. 1885, c. 30 (48 Victoria)
An Act to Provide for the Payment to Half-Breeds of the Amounts to Which they Are Entitled, and Which are Invested in Securities Which Cannot be Realized, S.M. 1885, c. 34 (48 Victoria)
An Act to Amend Chapter 34, 84 Victoria, S.M. 1886, c. 43 (49 Victoria)
An Act to Amend Cap. 30, 48 Victoria, S.M. 1888, c. 25 (51 Victoria)
An Act Respecting Lands Granted to the Children of Half Breeds Heads of Families under “The Manitoba Act”, S.M. 1892, c. 67 (55 Victoria)
C.S.M. 1880 – Schedule A – Acts Repealed
Docket: CI 81-01-01010
COURT OF QUEEN’S BENCH OF MANITOBA
BETWEEN:
2007 MBQB 293 (CanLII) MANITOBA METIS FEDERATION INC., YVON DUMONT, BILLYJO 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,
Plaintiffs,
- and -
ATTORNEY GENERAL OF CANADA and ATTORNEY GENERAL OF MANITOBA,
Defendants.
EXECUTIVE SUMMARY OF THE REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE ALAN D. MacINNES DELIVERED DECEMBER 7, 2007
THIS DOES NOT FORM PART OF THE JUDGMENT. THE CONTENTS ARE NOT TO BE REGARDED AS A PRONOUNCEMENT BY THE COURT AND ARE INTENDED ONLY TO BE AN AID TO THE READER.
The plaintiffs claim that the Métis people of Manitoba were to have received a land base under the Manitoba Act, 1870 (the Act), upon Manitoba’s entry into Confederation. They assert that they have suffered an historic injustice in not receiving such land base and sue Canada and Manitoba for certain declaratory relief, which, if granted, they say will assist them in future negotiations with Canada and Manitoba to achieve a land claims agreement and thus correct the asserted historical wrong. The plaintiffs do not claim any specific land, nor do they bring any claim for individual or personal relief.
The declarations sought by the plaintiffs are as follows: (1) that certain enactments, both statutes and Orders in Council, were ultra vires the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional; 2007 MBQB 293 (CanLII) (2) that Canada failed to fulfill its obligations, properly or at all, to the Métis under sections 31 and 32 of the Act, and pursuant to the undertakings given by the Crown; (3) that Manitoba, by enacting certain legislation and by imposing taxes on lands referred to in section 31 of the Act prior to the grant of those lands, unconstitutionally interfered with the fulfillment of the obligations under section 31 of the Act; and (4) that there was a treaty made in 1870 between the Crown in Right of Canada and the Provisional Government and people of Red River.
After having considered the evidence presented at trial and the law, including the full submissions, written and oral, of the parties in the lawsuit, I am not prepared to grant any of the declarations sought by the plaintiffs and accordingly dismiss their claim in its entirety.
As regards certain specific legal issues, I have reached the following conclusions.
1. The plaintiffs in this action are the Manitoba Metis Federation Inc. (the MMF), a corporation, and 17 individuals. The MMF fulfills a significant role on behalf of many of the Métis people in Manitoba today including, in its dealings with Canada and Manitoba in respect of many issues. Indeed, it may well play a role in respect of any future land claim negotiations. However, that is a very different matter than the legal issue of standing in this litigation. The MMF does not meet the criteria necessary for standing in this action.
Canada and Manitoba concede that the 17 individual plaintiffs are members of the Manitoba Métis community today and descendants of persons who were entitled to land and other rights under sections 31 and 32 of the Act. These plaintiffs do have standing in this action.
2
2. The time frame material to the events which underlie this action is approximately late 1869 to 1890. The evidence makes clear that the Métis and their representatives had played an active role in the Red River Settlement, including its social intercourse, commerce and governance. This continued through the period leading to passage of the Act and in the governance of the new province thereafter. Its leaders were knowledgeable and active in the life of the settlement and latterly of the Province and were fully conversant with the rights given under the Act, including those provisions (sections 30 to 33) which pertained to the lands of the Province. Being aware of their rights and of the ability to commence action in respect of any denial of their rights, The Limitation of Actions Act applies. The plaintiffs’ action was commenced in 1981, long after the expiration of the time permitted for suit, and their action is statute-barred. 2007 MBQB 293 (CanLII)
3. On the evidence there is grossly unreasonable and unexplained delay on the part of the plaintiffs in the commencement of this action. Declaratory relief, which is the relief sought in this action, is equitable relief. As a general rule, one who seeks equity must do so promptly. The prosecution of this case at this date is unreasonable. The doctrine of laches and acquiescence apply and are a complete defence to the plaintiffs’ claim.
4. The plaintiffs assert that the result of the negotiations between the Red River delegates and Prime Minister Macdonald and his colleague Cartier was a treaty or agreement. I disagree. There was no treaty or agreement. Rather, there was an Act of Parliament, the Act, which is a constitutional document and must be interpreted as such.
5. Sections 31 and 32 of the Act were not in the nature of minority rights legislation.
6. As at July 15, 1870, the Métis did not hold or enjoy aboriginal title to the land.
7. The Métis were not Indians, nor looked upon by those in the community as Indians. Neither did they consider themselves nor want to be considered as Indians. Rather, they wanted to be full citizens of the Province, as they previously had been of the Red River Settlement, a status that Indians at the time did not enjoy.
8. There was no fiduciary relationship existing between Canada and the Métis, nor was the doctrine of honour of the Crown implicated. Rather, Canada owed a public law duty to those entitled under sections 31 and 32 of the Act.
3
9. The language of sections 31 and 32 of the Act provided Canada with a broad discretion in their implementation.
10. While there were doubtless shortcomings in the implementation of sections 31 and 32, there was no evidence, and indeed no claim was advanced, of misconduct, bad faith, dishonesty or sharp dealings on the part of Canada or Manitoba in the implementation of those sections, such that declaratory relief should be granted.
11. The plaintiffs attacked certain of the legislation enacted by Manitoba and certain of the legislation and Orders in Council enacted by Canada on the basis that they were ultra vires or otherwise unconstitutional or that they unconstitutionally interfered with the fulfillment of the obligations under section 2007 MBQB 293 (CanLII) 31 of the Act. I find that they were not ultra vires. Further, I find that there is no doctrine of otherwise unconstitutional or of unconstitutional interference.
12. The doctrine of paramountcy asserted as applicable by the plaintiffs is not applicable in the circumstances, nor is there any basis for the plaintiffs’ claim against Canada for failing to disallow certain of the provincial legislation.