On Friday, the Supreme Court of Canada gave its decision in the Manitoba Métis Federation case, granting a declaration that the federal government failed to properly implement Sec. 31 of the Manitoba Act 1870. This is a landmark case and a significant step in the contemporary national debate about the place of the Métis people in the history and life of our country.
A declaration is not legally binding of itself but it declares what the law of the Constitution requires. In Canada, governments are expected to abide by the law of the Constitution and the rule of law. The declaration in the MMF case must lead to productive and good faith negotiations and must engage both the federal and provincial governments. The aim of the negotiations will be on remedial measures to account for the government's failure to respect the law of the Constitution in dealing with the land rights of the Métis residents of the original "postage stamp" portion of Manitoba.
Negotiations will not be easy. The province's boundaries have been enlarged. The court, contrary to all reasonable options, in my view, did not accept the argument that the purpose of Sec. 31 was to create a Métis land base in Manitoba. One of the results is to invite a focus on individual descendants of the original grantees of Sec. 31, who now live in the Métis diaspora in Saskatchewan and in other places.
Behind the judicial views lies a sinister tale that fails to expose the extent and gravity of the story of the great Métis dispossession and diaspora. The MMF case can be expected to generate a storm of controversy among historians, whose craft so often clashes with the courts' practical role of resolving disputes instead of debating contested historical facts. The other side of the story needs to be revealed.
In Canada's courts the issue has been concerned with advancing the reconciliation of the conflicting interests of the aboriginal peoples in their homelands with the interests of the rest of Canada. In the past the courts had interpreted other provisions of the Manitoba Act that had been introduced to protect the rights of the Métis as a founding people in the province, including denominational school rights and more recently French linguistic rights in the famous Manitoba Language Reference Case in 1985. This judicial history alone reveals the results of the Métis dispossession: the rights secured by our ancestors are now being enjoyed by newcomers to our homelands who have had the means and opportunities to enjoin the assistance of the courts in asserting them. This situation is reminiscent of Riel's words to the English-Protestant "half-breeds" when they showed reluctance in joining the French-Catholic Métis in 1869: "Go on, return peaceably to your farms. Stay in the arms of your women. Give this example to your children. But watch us act. We will work and obtain our rights and yours. You will come in the end to share them."
The Supreme Court was hampered in its options to decide for the Métis against the government because of the incongruity of the facts about the Métis dispossession as found by the trial judge. An appeal court has only very narrow authority to alter the findings of fact of a trial judge, making those facts extremely important for success on appeal. Inexplicably, the MMF counsel did not rely on any expert testimony at trial. As a result, the trial judge's findings of fact were informed by the views of Tom Flanagan and his ilk.
A small and narrow window into the sordid history behind the Métis dispossession reveals facts that may or may not have been brought to the court's attention. But they are facts that reveal how vigorous Manitoba judges have been in their opposition to Métis rights, from the time of the dispossession in the 1870s and '80s to the Supreme Court decision itself. In 1881 the province set up a commission of inquiry into the traffic in Métis children's lands. Speculators included government officials, lawyers and even, as the commission found, the chief justice of the court and his family. The scheme of dispossession has been called "the most highly placed extortion racket in Canadian history."
The facts shocked the conscience of contemporaries. William Leggo, a court clerk from Ontario who worked in Manitoba's courts at the time, testified before the commission: "I never suspected for a moment that a system that turned out to be so vicious could possibly exist in any civilized country."
The chief justice himself had this to say: "As to the half-breed reserve, like all other reserves of every kind, they are a curse to the country, and should be distributed without delay." The chief justice urged the freeing of the lands so that the province "would fill up quickly with an Ontario population and would yield a profitable return for the money expended on it."
The 1881 commission made several recommendations to provide safeguards for the Métis. The government of Manitoba ignored them and instead passed retroactive legislation in 1883 and 1884 to legalize the irregularities that had given rise to the inquiry. Much of this history has never been published and is available only to diligent researchers of archival records.
The Manitoba courts from trial through Court of Appeal found against the Métis in the Dumont case which altered its name to the MMF case as it made its way up to the Supreme Court. In the latter's MMF decision on March 8, Mr. Justice Rothstein, a Manitoban, wrote a lengthy and vigorous dissenting judgment which drew the support of only Mr. Justice Moldaver from Ontario against the majority of six justices. Justice Rothstein opined that provincial statutes of limitations stand in the way of redress for the governments' wrongdoings that gave rise to the Métis diaspora. It is too late, he thinks, for the dispossessed to seek rights in their homelands.
Although the entire court was able to avoid a declaration of unconstitutionality of the provincial statutes that aided the Métis dispossession, the government of the province would not be able to win its case in the courts of public morality. The conscience of the world frowns on the ability of states to dispossess peoples from their homelands and then plead that time has run out on justice when the dispossessed come calling. And time has run out because the government is hiding behind laws of its own making. The Crown in Canada is indivisible and failure to abide by the law of the Constitution by actions of government officials and legislators whether federal or provincial ought not to be immune from the rule of law.
The words of Riel deserve reflection. Who will now come and enjoy the rights that were secured by the political action of our ancestors?
Will the backing of the court decision be enough to balance the scales of justice in the face of the continuing imbalance of political power between governments and the Métis? The representatives of the Métis people will need vigilant and vigorous political action, because ultimately, as we can see, it is political action that trumps legal action in the long run. The story of the Manitoba Métis dispossession and diaspora is not finished.
Paul L.A.H. Chartrand, a retired professor of law and a historian, resides in his home community of St. Laurent on Lake Manitoba on a part of the land that was originally allotted to his great-grandfather pursuant to the Manitoba Act 1870.