Supreme Court backs Métis

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'Our time has come. This day will forever be marked as a new beginning' -- MMF head David Chartrand (SEAN KILPATRICK / THE CANADIAN PRESS)

Breaking down a landmark decision

Q: What legal document does this case refer to?

A: The Manitoba Act of 1870, which brought Manitoba into Confederation. The Red River settlers, the majority of whom were French-speaking, Roman Catholic Métis, feared the influx of Protestant and English-speaking settlers. After surveyors from Canada were met with armed resistance, the Métis, led by Louis Riel, negotiated the creation of Manitoba. In return for the settlers agreeing to lay down their arms and become part of Canada, Canada agreed, in Section 31 of the Manitoba Act, to provide 566,000 hectares (1.4 million acres) of land to Métis children.

Q: What was the problem?

A: The distribution of the land was fraught with problems. There were mistakes made determining the number of Métis children, resulting in 993 children not getting any land. It took 10 years to distribute the land, and much of the best land was already gone by the time the land was distributed. The plots, about 100 hectares per child, were distributed randomly, and siblings within families were often allotted land several hundred kilometres from each other. The 993 children who didn't receive land eventually received money instead, but the amount was based on outdated prices and could no longer purchase 100 hectares of land by the time it was distributed.

Q: What did the Manitoba Metis Federation want in this case?

A: This case is not about granting money or land to the Métis people. The Métis asked the courts for a declaration that Canada reneged on its fiduciary obligation to the Métis people of Manitoba; that it violated the honour of the Crown in doing so, and that certain bills passed by the Government of Manitoba between 1870 and 1880 were unconstitutional.

Q: What did the Supreme Court say?

A: After both the Manitoba Court of Appeal and the lower court in Manitoba rejected the MMF claims, the Supreme Court ruled Friday the Crown "failed to implement the land-grant provision set out in Section 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown." The claim regarding fiduciary duty was dismissed. The claim about the provincial statutes was not dealt with, as the court said the laws had long since been repealed and addressing them would be "moot."

Q: Am I at risk of losing my property to the Métis?

A: No. While the Red River Settlement included what is now modern-day Winnipeg, Manitoba Metis Federation president David Chartrand said the Métis are not out to push people out of their homes and off land they legitimately purchased. He said the Métis know what it's like to be pushed from their homes and will not do that to anyone else. Instead, they want to negotiate cash settlements with Ottawa, or land claims from existing Crown land.

Q: This happened more than a century ago. Why is it still an issue?

A: Both the federal and provincial governments argued in their briefs to the court that the case was without merit because it had long passed the statute of limitations. Both the Manitoba Court of Appeal and the lower court in Manitoba agreed. However, the Supreme Court said Friday because the Métis were not seeking personal remedies, and made no claim for damages, the case was not affected by the passage of time.

Q: If the MMF wasn't seeking money or land, why bother?

A: This case gives the Manitoba Metis Federation some weight behind negotiations for land or cash settlements with the federal government. Although it did not specifically ask for the court to determine how much the Métis people are owed, the MMF will use the ruling to argue the federal government needs to live up to promises made 143 years ago.

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OTTAWA -- David Chartrand is waiting by the phone for Prime Minister Stephen Harper to call in the wake of a landmark court victory that determined the federal government failed to live up to obligations to Manitoba's Métis.

Chartrand, the head of the Manitoba Metis Federation, is eager to restart negotiating a land claim that is as old as Manitoba itself.

At the heart of the dispute is how 566,000 hectares (1.4 million acres) of land was to be set aside for Métis children as promised by Canada in the Manitoba Act of 1870.

"Our time has come," said Chartrand. "This day will forever be marked as a new beginning."

The case is worth millions of dollars in compensation to the Métis in Manitoba, though Chartrand was unwilling to put a dollar figure on the negotiations Friday, saying he doesn't want to negotiate in public.

Chartrand said the significance of the case is clear if one imagines how successful the Métis would have been had they not been shut out of the land promised to them.

The MMF spent more than $5 million fighting this case, which was first filed in 1981. After years of negotiations with the federal government went nowhere, the MMF went to court asking for a declaration that the Crown had not lived up to its fiduciary responsibility, or the honour of the Crown, when it doled out land to more than 7,000 Métis children between 1870 and 1885. It also argued the Province of Manitoba violated the Constitution when it passed several laws dealing with the doling out of the land.

The land was promised in Section 31 of the Manitoba Act of 1870, in return for Red River settlers agreeing to become part of Canada. Métis leader Louis Riel led the negotiations.

Both a lower court and the Manitoba Court of Appeal ruled against the MMF. However, in a 6-2 decision Friday, the Supreme Court of Canada dismissed the appeal on the fiduciary duty and said the claims against the province were not dealt with because those laws had long since been repealed. However, it ruled in favour of the MMF on the third claim.

"Although the honour of the Crown obliged the government to act with diligence to fulfil Section 31, it acted with persistent inattention and failed to act diligently to achieve the purposes of the Section 31 grant," the ruling said. "This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade, substantially defeating a purpose of Section 31."

The court found the purpose of section 31 was to "give the Métis a head start in the race for land and a place in the new province. This required that the grants be made while a head start was still possible."

However, by the time the land was doled out, settlers had taken most of the best land.

It took more than 10 years for the Crown to make the allotments of land, and 15 years for the Métis children who did not receive land to receive money instead. The money was based on 1879 land prices, which by 1885, could not buy nearly the same amount of land as the children would have received.

Tom Berger, the lawyer representing the MMF, said it is a historic ruling.

"This is a call for the federal government to negotiate with the MMF to deal with an historical wrong," said Berger.

Shouts of joy filled the grand entrance hall and echoed through the hallways of the Supreme Court building in Ottawa as members of the Manitoba Metis Federation heard the news Friday morning.

"It is a proud, proud day," said Chartrand. "I'm sure Louis Riel must be smiling down on us today."

The MMF is not seeking to reclaim the land that would have gone to the Métis children if Section 31 had been fulfilled as promised. Most of that land is in private hands in modern-day Winnipeg. Instead, the MMF is looking for other land or a cash settlement.

A spokesman for Aboriginal Affairs Minister Bernard Valcourt said the government is reviewing the ruling.

"The government... will continue to work with Métis people to improve their quality of life," Jason MacDonald said.

Manitoba Conservative MP Rod Bruinooge, who is Métis, welcomed the decision. "This is an important chapter in Manitoba's and Canada's history."

He said he expects the government to act quickly. "I'm certain the government is going to take this ruling to heart," he said. "I think there will be an open process to consult with the MMF."

Manitoba Justice Minister Andrew Swan said the province respects the ruling. "The decision provides an opportunity for all of the involved parties to move forward with a more collaborative approach."

mia.rabson@freepress.mb.ca

Republished from the Winnipeg Free Press print edition March 9, 2013 A4