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 1 Colony to 1870”; ! 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