Winnipeg Free Press Dec 7 2007

A court ruling is expected to be released as early as today that could dramatically redefine the legal status of the Manitoba Métis community and their personal fortunes.

If Justice Alan MacInnes sides with the Métis, it could lead to a multibillion-dollar windfall for the Métis community. “Whichever way it goes, it will be appealed,” said University of Manitoba professor Karen Busby, a specialist in constitutional law who has been following the case for years.

The court case centres on 1.4 million acres of land given to the 10,000 Métis residents of the newly created province of Manitoba in 1870 and what, if anything, was done by the federal and provincial governments to ensure the Métis wouldn’t hold onto that land.

The case was launched in 1981 by the Manitoba Métis Federation and the leaders of 17 Métis families, representing the Métis nation.

The Métis case claims that laws were passed between 1877 and 1885 that facilitated the transfer of the land from the Métis to land speculators. The Métis aren’t asking for the land back — it includes all of modern-day Winnipeg, plus strips of land along the Assiniboine River from Winnipeg to Portage la Prairie and on both sides of the Red River from Selkirk to Emerson. But they want a ruling that states the governments acted wrongly in passing those laws and that those laws should be declared invalid. Busby said that if the Métis win their case, it would pave the way for a negotiated settlement seeking an amount that would compensate for the lost use of the land and an award equal to the current value of the land. Busy said the price tag would likely exceed several billion dollars.

The case took 26 years to get to trial and MacInnes has spent the past 16 months wrestling with the arguments, examining previous court rulings, and writing a decision. He now sits on the Court of Appeal but when the Métis case went to trial, he was a senior judge of the Court of Queen’s Bench. A year after the arguments ended, MacInnes was named to the province’s top court but he is obliged to rule on the case.

To present their case, the Métis hired legal heavyweight Thomas Berger, a former B.C. politician and judge, who has acted for aboriginal groups across the country. During his opening statement to the court in April 2006, Berger said that even though the Métis were promised land when Manitoba was created, the distribution of the land didn’t happen for seven years and that was followed by laws that made it easy for speculators to buy the land out from under the Métis as soon as they acquired it.

“Such a delay could only have the result of inducing (the Métis) to sell their claims in order to at least receive something,” Berger said. “And this was what the governments wanted.”

Busby said that the newly created province of Manitoba was a frontier society, where the rules of civilization were being written almost daily.

“There was no land registry at the time,” Busby said of Manitoba’s early days. “You’re making up rules as you go along.”

Of the 17 individuals who filed the court action, 12 of them had documents to show that their families were given land in the Red River Colony but that land was later sold. The sales were legal and registered. However, the Métis argued at trial last year that the sales were unfair because the new laws were written in a way that allowed speculators at the time to take advantage of the Métis people.

Busby said the evidence at the trial found that many of these land sales were later challenged in court, with some of them being cancelled and others not. But Busby said the result is that at last year’s trial, the provincial and federal governments argued that the rules of the time were sufficient to safeguard Métis interests.

The Métis case argues that Ottawa had a duty to look out after the interests of the Métis and by allowing the land sales to occur, the federal government failed and must compensate the Métis. Busby said that the governments argued at the trial that the Métis people at the time agreed with the rules of the day and sold their land accordingly. There were legal protections that allowed the Métis to challenge the land sales and that the governments today shouldn’t be held liable for mistakes made. Ottawa argued that it was never under obligation to look after the communal interests of the Métis.

Busby said MacInnes must also answer many contentious questions, such as who are the Métis and who represents them?

Should only the descendants of the original 10,000 Métis in the Red River Colony be compensated or all Manitobans who claim to be Métis today? And, similar to Indian bands, can the Manitoba Métis Federation act on behalf of all Métis, or must Métis in every community organize themselves into a group, or are the rights of the Métis held individually.

Should the 1870 rule that gave land to the Métis of the Red River Colony be expanded to other Métis as the province expanded?

If MacInnes limits the ruling to the descendants of the original 10,000 Métis, Busby said the bill will likely approach or exceed $1 billion. However, if MacInnes takes a more permissive approach, Busby said the Métis will likely argue that descendants of all the Métis should have been compensated in the same way and the bill will exceed several billion dollars.

This article was posted on Friday, December 7th, 2007 and is filed under First Nations / Aboriginal Peoples. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.