Métis running out of options in land claims case
Winnipeg Free Press March 2, 2008
TWO months ago judgment was delivered in one of the most important cases ever to be decided by the Manitoba Court of Queen’s Bench — the Manitoba Métis Federation, and some of its individual members against the government of Canada and the government of Manitoba.
The litigation began close to three decades ago. Part of the delay was due to pre-trial sparring and part because of the complexity of the issues. Perhaps the largest reason was because the Métis Federation was anxious to obtain the offer of a financial settlement package that never materialized.
Essentially, the Métis Federation, representing approximately 130,000 Métis people in Manitoba, was seeking a declaration that, between them, the two governments had cheated the Métis people of their entitlement to a land base in Manitoba, when it became a province in 1870. The Métis Federation recognized the impossibility of acquiring a huge land grant well over a century after the event. The Federation hoped to obtain a declaration that in turn would require the governments to provide a financial package of equivalent value.
As things now stand there is no declaration in favour of the Métis Federation and no prospect of financial rewards. And the outlook on appeal is bleak.
After 27 years in the making, one might have supposed a lengthy trial, but in fact there were only four witnesses, mainly providing historical background to explain or embellish historical documents. However, the volume of documentary evidence was overwhelming. It therefore took trial Judge Alan MacInnes the better part of a year to analyze the material and prepare his carefully crafted 390-page decision.
A number of issues were addressed. Although each issue was given careful consideration, the fact is that the outcome was predictable. The case presented by the Métis Federation was not a strong one.
The Métis claim they were promised a very substantial land base in Manitoba as part of the bargain negotiated by Louis Riel and others, when the province joined the Canadian confederation. Sect. 31 of the Manitoba Act specifies that 1.4 million acres of land were to be distributed to the children of Métis heads of families. Moreover, Sect. 32 went on to indicate that citizens who already occupied land “with the sanction and under the license and authority of the Hudson’s Bay Company” could retain ownership in the new province. This included numerous Métis people.
Great problems arose in identifying those entitled to a land grant and allocation of a parcel of land. A census was undertaken immediately after the province was established which indicated that there were approximately seven to eight thousand Métis children. Identifying the intended recipients was one problem, but the method of distribution was also difficult. Métis families settled in various parishes along the Red and Assiniboine Rivers, and attempts were made to distribute land to children in those same parishes. The Métis were a mobile people, following the buffalo westward, which compounded the difficulty of identifying those entitled to an allotment. Years rolled by before the process was completed. Indeed, towards the end of the process some individuals entitled to a land grant were simply given script. As the distribution unfolded it was found that the numbers had been underestimated. By that time all the land had been distributed and some 933 received script, worth $240, which could be then applied on the purchase of land. (Money had a much greater value in those days.)
Many of those who had received a land grant sold the parcel and moved on. There was an out migration of Métis people to the still open lands of what is now Saskatchewan. Often those who received script sold the asset for less than its real value. One of the complaints of the Métis Federation in this litigation was that the governments of Canada and Manitoba did not protect the Métis from those who would take advantage of them. But the fact remains, there was a distribution of land to the children of Métis families of even more acreage than promised, and there was no complaint for about 100 years.
There were numerous issues argued before Judge MacInnes: Did the Métis Federation have the necessary status to bring the action? Was the case out of time either because of the Limitations of Actions Act, or simply because of the inordinate lapse of time? Did Canada and Manitoba owe a fiduciary duty to the Métis people? Was Canada obliged to protect the Métis in the negotiations in the same manner that the interests of Indian people must be protected in treaty negotiations? Judge MacInnes resolved every issue against the Métis Federation.
However, the main argument was that the bargain struck by representatives of the provisional government with then prime minister John A. Macdonald and his Quebec lieutenant, George Etienne Cartier, and expressed in the Manitoba Act, constituted a treaty, similar to treaties between the Crown and Indian tribes. It was argued that the land was therefore inalienable, and like treaty lands, could not be sold or otherwise disposed of. It was asserted with some validity that if this argument were accepted it would trump all other issues. But it did not succeed.
There is a series of cases decided by the Supreme Court of Canada establishing the criteria for determining aboriginal title to land. Did Indian people occupy the land in question prior to the assertion of British sovereignty? Was there continuity of the occupation of the land? Was the occupation of the land exclusive in nature? Was the land in question inalienable — meaning it could not be transferred or sold to third parties? The Supreme Court also ruled that the first criterion would necessarily be varied to accept the reality that Métis people, being the product of mixed marriages, could not possibly occupy lands prior to the assertion of British sovereignty.
Judge MacInnes applied the criteria enunciated by the Supreme Court and came to the only possible conclusion given the evidence before him. The land distributed under the Manitoba Act was not land over which the Métis could validly claim Aboriginal title. End of case.
Within hours of the decision David Chartrand, president of the MMF, gave an interview indicating the intention to appeal the decision. But he went further, and said that he did not expect justice from the Manitoba Court of Appeal, and it would be necessary to proceed to the Supreme Court of Canada to obtain a fair hearing. The same sentiment was implicit in an op-ed article he wrote for the Free Press some weeks later, in which he expressed the hope the case would be before the Supreme Court in three years time.
Chartrand is wrong in his assumption that the Court of Appeal is predisposed to dismiss the appeal. But he is right to be pessimistic about the result. The fact is that the only real hope for success is if the criteria for determining aboriginal title are altered, and only the Supreme Court is in a position to make that decision. Neither Judge MacInnes at trial, nor the Court of Appeal on review of his decision, have the right to alter the criteria laid down by our highest court.
I have a suggestion. Why not bypass the Court of Appeal and go directly to the Supreme Court? The saving in both time and costs would be enormous. At trial a total of nine lawyers appeared for the parties. There could well be two years of work in preparing the matter for a hearing before the Court of Appeal - a hearing that the MMF claims to be an exercise in futility, and for which, for totally different reasons would seem to be a sound prediction. The members of the Court of Appeal who must hear the case would probably be pleased to pass the torch directly to the Supreme Court in a matter that would consume their time and energy, when a spokesperson for the appellants has already predicted a biased result.
Can it be done? Not without the blessing of both the Court of Appeal and the Supreme Court.
Sect. 38 of the Supreme Court Act permits a “per saltum” order, meaning an order leaping over the intermediate court of appeal. While rare, it has been used in a case as recently as 1990. A per saltum appeal can only be on a question of law alone, which in this case would be the criterion for determining Aboriginal title with respect to a Métis land claim. Arguing a point of law would be a relatively simple procedure compared to a full-blown appeal, first to the Manitoba Court of Appeal and then to the Supreme Court.
It is unlikely that an order per saltum would be made without the consent of the Manitoba Court of Appeal, and even with that consent, the Supreme Court would grant a per saltum order only if one could see some modicum of hope in the prospects of success. It is worth the try.
Charles Huband is a former justice on the Manitoba Court of Appeal.
Comment by Earlene Bitterman, writing from Canada on March 2nd, 2008 at 8:41 pm:
Many (if not the majority) of the descendants of the people that received “Manitoba Script” no longer live in Manitoba. After Manitoba was made a part of canada, those people scattered to the winds. Many families moved after they were evicted from the land they had lived on for many years. They were literally forced off of their ancestral land, and were denied a place in Manitoba.
Others lived in the province for many years after 1870, only moving later for economic or other reasons. They still have as much of a claim to any land as any other descendant of those who lived in the Red River Valley, but the MMF does not even attempt to claim that they represent those people. Instead, the MMF would deny those people any right to a land claim, instead attempting to only allow their members to have any claim to a settlement based on those old land claims.
Unless the MMF agrees to represent ALL Metis people, wherever they may reside, they should not be allowed to bring this case before the courts. They do not represent the Metis people, they merely represent a tiny minority of the Metis people that happen to reside in Mantoba.
Comment by BigMetis, writing from United States on March 15th, 2008 at 10:20 am:
This whole nonsense that the Metis and FN are the “original owners” of the land is preposterous. Nobody can truly own land if one goes back far enough. Canadians have put up with this nonsense far too long. The nature of things is that superiour cultures dominate the weaker ones - has happened thru out history. Why we should right wrongs over a century ago is simply ludicrous. Back then, people acted to the morals of the day. Slavery was ongoing. Did the world repay the slaves for lost wages? No. They chalked it up to the cruel world it is and got on with things. If you are on the wrong end of that stick, you have a right to be pissed. But everyone, every society has had “unfair” things happen and yet people and societies manage to prosper. Those that sit on their arses waiting for a handout deserve contempt.
Comment by Rachel, writing from Canada on July 17th, 2008 at 4:33 pm:
I would have thought that a case could be made for the land claim. Are the land scripts promised to the Metis people so much different than that of First Nations. First Nations people are winning their land claim battles with financial compensation. Is there a lesson to be learned from the First Nations. How did they win their cases?