December 9, 2013 Sections
Winnipeg Free Press - PRINT EDITION
Charles Huband's recent op-ed piece (Resist the money grab by MMF, Aug. 23) is hardly a careful examination of Manitoba's history and of the Métis claim; in fact, it is a disservice to both.
The Métis case was all about a promise made by Canada to the Métis. When Manitoba entered Confederation in 1870, the children of the Métis, numbering 7,000, were promised 1.4 million acres of land.
So what happened? Was the promise kept? According to Huband: "After some initial mistakes and setbacks, the undertaking was fulfilled by grants of 240 acres to each of the identified individuals." This is a bureaucrat's stale answer. The complete story is more compelling.
When, after Confederation in 1867, John A. Macdonald wished to extend Canada westward he had to deal with the Métis. The Métis were a new nation that had arisen in the West. The Red River Settlement (now Winnipeg), the largest (12,000) community on the Prairies, was a Métis settlement. In the fall of 1869, when Canada moved to acquire the West without consulting or considering the interests of the people of the Red River, the Métis resisted. They turned back Canadian road builders and surveyors. Métis riflemen refused to allow Macdonald's newly appointed lieutenant governor, sent out from Ottawa to establish Canadian sovereignty, to enter the territory. Led by Louis Riel the Métis formed their own provisional government, and governed Red River until the summer of 1870.
At first Macdonald dismissed the Métis. He wrote in October 1869 that "it will require considerable management to keep these wild people quiet. In another year the present residents (the Métis) will be altogether swamped by the influx of strangers who will go in with the idea of becoming industrious and peaceable settlers."
Macdonald wanted to send British troops to Manitoba together with Canadian militia to put down the Métis, but the troops could not reach Red River until the late spring or summer of the following year.
So he had to negotiate with the Métis if he was to bring Manitoba peacefully into Confederation. Riel's government sent delegates, led by Father Noel-Joseph Ritchot, to Ottawa to negotiate and in May 1870 they reached an agreement with Macdonald and his principal colleague, Sir George-âtienne Cartier.
Thus the Manitoba Act provided that the children of the Métis would receive 1.4 million acres of land "for the benefit of the Métis families" so that the next generation of Métis would have a secure place in the new province. Macdonald told the House of Commons that the purpose of the land grant was to enable the children to become settlers, that the land was not to go to speculators. Cartier told the House that Ottawa would act as "guardians" of the children's land.
In the recent litigation, the trial judge held that the purpose of the land grant was to give the Métis a head start, to enable them to become landowners in the new province. The Manitoba Court of Appeal agreed.
Did the Métis get a "head start"? No, they didn't even get to the start line for a decade, and deeds were not distributed for 15 years.
After the soldiers and settlers arrived there was a "reign of terror" against the Métis. Within 10 years the population of Manitoba had risen to 60,000 (a five-fold increase). Land was distributed to everyone, but the Métis did not receive their 1.4 million acres.
The Supreme Court summed up what occurred: "The Métis did not receive the intended head start, and following the influx of settlers, they found themselves increasingly marginalized, facing discrimination and poverty."
The MMF had to prove its case in court. And did. The Supreme Court held that the promise to the Métis had not been implemented "in accordance with the honour of the Crown." The Supreme Court described it as a case of "repeated mistakes and inaction that persisted for more than a decade." The Supreme Court concluded that a "persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown's duty to act honourably."
The federal government had every opportunity to answer the MMF's case. They had the legal resources of the department of Justice, as well as outside counsel. And they had two experts, an historian and a political scientist, on the federal payroll for many years. And they lost in the Supreme Court, 6 to 2.
The Supreme Court described the promise of 1.4 million acres of the land for the next generation of Métis as "the central promise the Métis obtained from the Crown in order to prevent their future marginalization." The Métis, after years of struggle, have now established that a solemn promise made to persuade them to lay down their arms and enter Canada was never kept.
Huband cites Manitoba's statute of limitations. He jeers at the Métis claim as "out by about 100 years." In the Manitoba courts it was held that this was an absolute bar to the Métis suit. But the Métis claim was no ordinary claim.
Macdonald's promise is contained in Sec. 31 of the Manitoba Act, the constitutional instrument that brought Manitoba into Confederation. It is still there, still unfulfilled. The Supreme Court held that "the courts are the guardians of the Constitution and cannot be barred from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less."
Huband says, well, the Métis have their declaration. So that, he says, should be the end of it. He says there should be no negotiations with the Métis. He is troubled that the Métis have set up a land claims strategic investment committee. He fears that "the tax-paying public may be cheated." Doesn't he realize that the Métis are members of "the tax-paying public?" The Métis have always paid taxes. As for being cheated, he doesn't stop to ask: In the negotiations of 1870 who was cheated?
The Supreme Court described the failure of the Crown to carry out the solemn constitutional promise it made to the Métis as "a rift in the national fabric." It can only be mended through negotiations, by the federal government, the government of Manitoba and the Métis. A negotiated settlement will take time, but it is the means to reconciliation. The work of nation-building is not yet completed.
Thomas Berger, O.C., Q.C. was counsel for the Manitoba Metis Federation in the Supreme Court of Canada. He is a former leader of the B.C. NDP and was the Royal Commissioner of the Mackenzie Valley Pipeline Inquiry.
Republished from the Winnipeg Free Press print edition August 30, 2013 A9
Updated on Friday, August 30, 2013 at 8:04 AM CDT:
Corrects spelling of Métis