The Manitoba Metis Federation enjoyed a significant decision of the Supreme Court of Canada a few months ago. By a controversial majority decision, the court provided the MMF with a declaration that "the transfer of lands to Métis children was not carried out with diligence as required by the honour of the Crown."
A word of explanation: The legal action by the MMF was begun in 1985, but did not proceed to trial in the Manitoba Court of Queen's Bench until a few years ago. The Métis claim was dismissed. An appeal to the Manitoba Court of Appeal was unanimously dismissed by a five-judge panel. The case proceeded on to the Supreme Court of Canada where a majority decision of six judges allowed the Métis claim, by raising an issue that had not even been argued before the Supreme Court by the MMF. Two Supreme Court judges issued a strong dissenting opinion.
The essence of the Supreme Court decision was that back in the 1870s, and until 1885, the Government of Canada was slow to fulfil its obligation to provide land grants to the children of Métis families as required under the Manitoba Act, which brought Manitoba into Confederation.
Sec. 31 of the act is a unique provision. It was a promise to provide 1.4 million acres of land to the children of Métis families then living in the newly constituted province. After some initial mistakes and setbacks, the undertaking was fulfilled by grants of 240 acres to each of the identified individuals.
But it turned out that the number of Métis children had been underestimated, and the entitlement of those at the end of the line came in the form of "script," which was a document that could be traded in at the land titles office for an allotment of land, or sold on the open market to land speculators.
The process was flawed and took some 15 years to finalize but, in fact, the promised 1.4 million acres, and substantially more, were distributed to the children of Métis families as required.
The declaration granted by the majority decision of the Supreme Court was as stated above, "the transfer of lands to the Métis children was not carried out with diligence as required by the honour of the Crown." No claim to additional lands was sought, and no monetary claim was advanced, and no such awards were granted.
In effect it was held that the children of Métis families received their entitlement or its equivalency -- but, in the judgment of the majority, it took longer than it should have.
Having received more than was promised, it is understandable the MMF did not seek anything more than a declaration, and that the Supreme Court only granted a declaration. It would seem the court proceeded on the misguided impression that the declaration, plus the costs of the lengthy litigation, would be sufficient reward. The chief justice wrote, near the end of her reasons for decision:
"What is at issue is a constitutional grievance going back almost a century and a half. So long as it remains outstanding, the goal of reconciliation and constitutional harmony... remains unachieved."
It seems clear the majority judgment proceeded on the wrongful assumption that a declaration that the Crown was guilty of a lack of diligence in the distribution of the land grants would bring about reconciliation and constitutional harmony. It is now clear that, on the contrary, only substantial amounts of public funds will satisfy the MMF.
On July 31, the MMF called a press conference to introduce members of its Land Claims Strategic Investment Committee, consisting of four "heavy hitters" (as described by the Winnipeg Free Press.) They were former prime minister Paul Martin, Hartley Richardson, Sanford Riley, Harvey Secter and Dr. Eric Newell, all well-known and respected personages.
The press release stated the MMF had appointed a "blue-ribbon committee" to advise it on how to set up a legacy fund ahead of negotiations with the federal government to settle what could be a multibillion-dollar land-claims dispute.
Wait a moment!
The MMF obtained a declaration the chief justice of Canada thought would be sufficient to bring about reconciliation. But far from a reconciliation, it has brought about a claim for millions, or perhaps billions of taxpayer dollars, and with the tacit support of a group of advisers -- some of whom are in the money-management business.
Perhaps the most audacious statement at the MMF press conference was the suggestion by David Chartrand, president of the MMF, that Chuck Strahl, former Conservative cabinet minister, should be appointed as the federal government's negotiator. (Presumably he is seen by Chartrand as a friend of the MMF.) One hopes there will be no negotiations, but if there are, it must be adversarial in nature, otherwise it will be the taxpaying public that will be cheated.
It is interesting to note that in the arguments before the Supreme Court, the Government of Canada had raised as a defence the Limitation of Actions Act, which was passed by the Manitoba legislature in 1931 and places limitation on the length of time for launching a legal action. This one was out by about 100 years.
The majority judgment concluded the Limitation of Actions Act had no application because there was no sustainable claim of breach of fiduciary duty that would lead to a restitutionary order of either land or money. That left only the declaratory order. At paragraph 139 of the reasons for decision reads in part as follows: "We are not concerned with an action for breach of fiduciary duty, but with a claim for a declaration that the Crown did not act honourably in implementing the constitutional obligations in s. 31 of the Manitoba Act. Limitation acts cannot bar claims of this nature."
It is ironic that had the MMF advanced a more concrete claim for land or money, it would seem clear that the claim would have failed because of the Limitations of Actions Act. Reduced to seeking only a declaration gave the Supreme Court the excuse to conclude that the action was not barred by the flow of time. How ironic it would be if the MMF is now able to translate that declaration into a money grab with the help of the "heavy hitters."
In my view, the Government of Canada should resist this claim with determination.
Charles Huband is a retired Manitoba Appeal Court justice and former leader of the Manitoba Liberal Party.