Date: 20071207

Docket: CI 81-01-01010 (Winnipeg Centre)

Indexed as: Manitoba Metis Federation Inc. et al. v. Attorney General of Canada et al.

Cited as: 2007 MBQB 293

COURT OF QUEEN’S BENCH OF MANITOBA

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MacINNES J.

INTRODUCTION

[1]The plaintiffs assert that the Métis people of Manitoba have suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870 (Can.), 33 Vict., c. 3, S.C. 1870, c. 3,

reprinted in R.S.C. 1985, App. II, No. 8 (the “Act”), upon Manitoba’s entry into the Canadian Confederation. They sue the defendants for certain declaratory relief. Their purpose in seeking such relief is simply to assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong.

[2]The Manitoba Métis Federation Inc. (the “MMF”) is a Manitoba

corporation, incorporated October 1, 1967. It says it presently represents approximately 130,000 Métis people resident in Manitoba.

[3]The individual plaintiffs are Métis, and allege they are descendants of persons referred to in the Act as “half-breeds” entitled to land pursuant to

section 31, and to land and other rights under section 32 of the Act.

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[4]None of the plaintiffs brings any claim for individual or personal relief.

[5]The declarations sought by the plaintiffs are as follows:

(1)that certain enactments (both statutes and orders in council) were ultra vires the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional;

(2)that Canada failed to fulfill its obligations, properly or at all, to the Métis under sections 31 and 32 of the Act, and pursuant to the undertakings given by the Crown;

(3)that Manitoba, by enacting certain legislation and by imposing taxes on lands referred to in section 31 of the Act prior to the grant of those lands, unconstitutionally interfered with the fulfillment of the obligations under section 31 of the Act; and

(4)that there was a treaty made in 1870 between the Crown in right of Canada and the Provisional Government and people of Red River.

[6]For the reasons which follow, I am not prepared to grant any of the declarations sought by the plaintiffs and accordingly dismiss their claim.

[7]All of the parties sought costs in respect of this litigation. The general rule is that costs follow the event. But often, depending upon the nature and

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circumstances of the litigation, the general rule is not followed. In this case, none of the parties have argued in respect of costs. In the circumstances, I intend to leave the matter of costs to the parties. If they are unable to reach agreement as to disposition of costs, costs may be spoken to.

OVERVIEW OF THE MATERIAL (EVIDENCE AND ARGUMENTS) PROVIDED AT TRIAL

[8]There are 56 trial exhibits. Exhibit 1 consists of 58 three-ring binders containing 2,068 documents, some of which are CD-ROMs containing voluminous material and others of which, though in hard copy, are multi-paged. Many of the documents within this exhibit were obtained from official archives. Of those, many were in handwriting and many were in French. Many had to be translated from French to English or reproduced in typed form, or both. Counsel did an excellent job of providing these documents or copies of them in legible form. In many instances, the original text is difficult to decipher and there are therefore uncertainties as to it. I am satisfied, however, that such shortcomings are not material in deciding the case.

[9]The plaintiffs called only one trial witness, David Chartrand, president of the MMF. As well, they read into the record certain answers provided by representatives of the defendants on examination for discovery and otherwise relied upon the documents filed as exhibits.

[10]Canada called four witnesses, three of whom, Dr. Gerhard J. Ens

(“Dr. Ens”), Ms. Catherine Macdonald (“Ms. Macdonald”), and Dr. Thomas

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Flanagan (“Dr. Flanagan”), were expert witnesses. Dr. Ens and Ms. Macdonald are historians; Dr. Flanagan is a political scientist. Canada filed, by consent, the reports of those expert witnesses, namely:

Report of Dr. Ens entitled “Settlement and Economy of the Red River Colony to 1870”;1

Report of Ms. Macdonald entitled “Events of the Red River Resistance of 1869-70”;2

Report of Dr. Flanagan entitled “Historical Evidence in the Case of Manitoba Métis Federation v. the Queen”;3

Report of Dr. Flanagan and Dr. Ens entitled “Métis Family Study”;4

Report of Dr. Ens entitled “Migration and Persistence of the Red River Métis 1835-1890”;5

Report of Dr. Ens entitled “Manitoba Métis Study – The Métis Land Grant and Persistence in Manitoba”.6

As well, Canada filed, by consent, the report of Steven E. Paterson entitled “Land Grants for Loyalists”.7

1Exhibit 14

2Exhibit 16

3Exhibit 18

4Exhibit 19

5Exhibit 35

6Exhibit 36

7Exhibit 44

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[11]In addition, Canada called Bradley Morrison (“Mr. Morrison”), a lawyer

presently employed as a researcher with the Department of Indian and Northern Affairs Canada and manager of Claims Litigation within the Manitoba region. He led a group of federal employees under the direction of Dr. Ens who prepared a series of maps and a booklet of those maps entitled “Métis Land Grants Manitoba Act”. The booklet was filed as Exhibit 25 and the enlarged individual maps contained within the booklet were filed as Exhibits 28, 29, 31, 32, 33 and 34. Filed as Exhibit 24 was Mr. Morrison’s report entitled “Mapping of Métis Land Grants Methodology”.

[12]Canada also read into the record certain answers from the examinations for discovery of Mr. Chartrand and the individual plaintiffs.

[13]Manitoba called Russell Davidson (“Mr. Davidson”) as a witness. He is a

lawyer and is the senior deputy district registrar of the Winnipeg Land Titles Office. He testified in respect of The Land Registry Act and The Real Property Act of Manitoba and more specifically as to the procedures and activities of the Land Titles Offices in Manitoba. As well, he reviewed and provided an interpretation of many historical documents filed with the Land Titles Offices pertaining to the grant and the landholdings, or disposition thereof, of Métis under the Act.

[14]Manitoba also read into the record certain answers from the examinations for discovery of the individual plaintiffs.

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[15]Following completion of the evidence, I received a 425-page written argument from plaintiffs’ counsel, together with copies of statutes, federal and

provincial, federal orders in council, and seven 3-ring binders of legal authorities. I then heard oral argument from plaintiffs’ counsel for two weeks.

[16]I received written argument from counsel for Canada consisting of 226 pages plus two appendices, one of which was an 85-page statement of material facts, and seven 3-ring binders of legal authorities. I heard oral argument from

Canada’s counsel for approximately 3½ days.

[17]As well, I received a 73-page written argument from counsel for Manitoba together with a booklet of Manitoba statutes and two 3-ring binders of legal authorities. I heard oral argument from counsel for Manitoba for approximately one day.

[18]Finally, I received a 52-page written document entitled “Plaintiffs’ Notes for Reply” and heard argument in reply for approximately 2½ days.

[19]I have described the nature and volume of the materials provided during the course of the trial and in argument for a particular reason. As is clear, the material factual underpinnings of this case relate to events that occurred in or around 1870; shortly before and for about 15 years thereafter. Obviously, none of the participants in those events is alive. The live witnesses from whom I heard were Mr. Chartrand, whose evidence related essentially to the MMF in respect of the issue of standing in this litigation, and the experts to whom I have

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referred who had done extensive historical research and compiled relevant historical documents. As well, Mr. Morrison, who had created documents based upon his interpretation of historical documents, and Mr. Davidson, who testified from an historical perspective advising of the practices of the Manitoba Land Titles Office system and who interpreted historical documents pertaining to the landholdings of individuals shortly following 1870.

[20]Ms. Macdonald commented on the reliability of the historical evidence as it pertained to her report.8 Her comments can be found at pp. 3 through 5 of her

report under the heading “The Evidence”. Some of those comments are the following:

The available archival evidence for the Resistance [referring to the Red River Resistance 1869-70] is abundant but it displays defects in quality and coverage that are common with most historical evidence. All of the surviving sources need to be read in the light of the biases of their authors. …

. . . . .

The French Metis side of the conflict is less well served by the documents that have made their way into archives. Riel himself made a few attempts to record his version of events…. But Riel’s memoir is not

particularly informative. In it he is concerned with pleading his case for an amnesty for himself and others who participated in the Resistance and factual explication was a secondary concern. …

For the crucial period of time between the arrival of the Canadian Dawson Road construction crew in late fall of 1868 and the first of the French Metis protest meetings in July of 1869, there are only a few sources with which to piece together what people were doing and saying within the French Metis community. Most important of these are Father Noel-Joseph Ritchot’s two notebooks in which he recorded a memoir of this early period of the Resistance and in which he wrote a record of the proceedings of meetings of the Metis National Committee between October 20 and November 6, 1869. These notebooks present some

8Exhibit 16

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evidentiary problems. They are extremely difficult to read. Quite apart from Ritchot’s illegible handwriting, the notebooks contain several torn pages and numerous large ink blots which obscure text. Philippe Mailhot, who wrote a Ph.D. thesis on Ritchot, contends that Ritchot deliberately tore pages and placed ink blots over passages of his notebooks in order to prevent people from reading what was on those pages. Mailhot thinks that Ritchot was thereby attempting to minimize his role in the Resistance. A further difficulty with the notebooks is that there is no indication of when they were composed except that internal clues point to a composition date sometime after the events described in Notebook 1. Mailhot’s contention cannot be proved conclusively one way or the other, but the ink blots and tears are too deliberately placed to have been accidental. However, even if Ritchot or someone else later edited his notebooks, the parts of the text that are still readable are valuable and cannot be discounted, though they should be used with caution.

In my view, similar comments may be made about the writings of Father Noël- Joseph Ritchot (“Ritchot”) for the period March 24 to May 28, 1870,9 referred to in this case as “Ritchot’s diary”.

[21]Lastly, Ms. Macdonald wrote:

For the purpose of describing the makeup and rationale’s behind factions, both the evidence in English and in French must be used cautiously. An opinion expressed in a letter by one individual, even if he or she was an influential person, cannot be extrapolated, by itself, to describe the opinion of a whole group of people.

These comments of Ms. Macdonald were made as part of her report. In my view, however, they have broader application than simply to her report. They should be taken to apply to the historical evidence that generally provides the factual basis for this entire case.

[22]A further need for caution, in my view, applies in respect of the

Parliamentary Debates, both those between May 2 and May 12, 1870, pertaining to the introduction of and debate upon the Bill that ultimately was

9Exhibit 1-0005

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passed as the Act and subsequent debates in Parliament from time to time pertaining to that Act and to its implementation. I do not mean by these comments to be in any way disrespectful of members of Parliament or of politicians generally. However, in my view, when one reads the Parliamentary Debates, one can discern the biases of the speaker, including biases dependent

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upon whether the speaker is a member of Government or of the Opposition. This, in my view, is doubtless one of the several reasons for judicial decisions which allow for the admissibility of such debates into evidence at trial, but caution as to the degree of weight to be given to such debates.

[23]The plaintiffs took the position that with the historical documentation

available, it was tantamount to having the witnesses’ viva voce testimony, particularly as regards the discussion or negotiations between the Red River delegates and Sir John A. Macdonald (“Macdonald”) and Sir George Étienne Cartier (“Cartier”) relative to the passage of the Act. But having so argued, the plaintiffs also argued that, when dealing with the question of implementation of both sections 31 and 32 of the Act, one could not wholly rely upon written documents. They asserted that while documents such as abstract pages from a land registry office were provided no doubt with a high degree of accuracy, still no certain insight could be gained from such documents either as to what may have proceeded or been incidental to the execution of such documents or as to whether that which was recorded in the documents actually occurred. This, of course, is one of the difficulties with this entire case where, in order to obtain relief, a sound factual background must be provided whereas even the plaintiffs acknowledge that while documents record information, there is contextual uncertainty as to the degree of reliability of the documents.

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[24]While it is unfortunate that this must be so, it is no different than many other cases which have come before the courts, particularly aboriginal cases which often in point of time are aged and historical.

[25]I was cautioned by counsel, particularly plaintiffs’ counsel, that my task is

not to rewrite history. For that I am thankful. Rather, my task is to decide the issues raised in the litigation on the basis of the evidence introduced. But in considering the evidence, I must be alive to the frailties of this kind of evidence, particularly from the standpoint of reliability and authoritative scope.

[26]While I do not purport to be rewriting history, I will, for purposes of context, set forth what I believe to be the relevant historical facts. I propose to set forth such facts under three separate headings:

(1)facts up to the effective date of the Act, July 15, 1870;

(2)facts material to the implementation of the section 31 grant; and

(3)facts material to the implementation of the section 32 grant.

I will then deal with the specific issues argued by the parties.

HISTORICAL BACKGROUND

(1)Facts up to the Effective Date of the Act, July 15, 1870

[27]In 1670, the Hudson’s Bay Company (the “HBC”), under license from the British Crown, acquired Rupert’s Land, a vast land mass extending from Lake

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Superior to the Rocky Mountains, including land in what is now the north central United States.

[28]On June 12, 1811, the HBC granted a tract of land in Rupert’s Land to

Lord Selkirk. Without describing the tract in any detail, it included territory far beyond the boundaries of the Red River Settlement (the “Settlement”) of 1870.

[29]Lord Selkirk thereupon brought Scottish immigrants to Red River. They settled in Kildonan Parish along the Red River north of the confluence of the Red and Assiniboine rivers (the “Forks”). In 1817, Lord Selkirk entered into a treaty

with a number of Indian bands thereby effectively extinguishing Indian title to land which stretched two miles back from either side of the Red River from the point where it entered into Lake Winnipeg to a point south, located at what is now Grand Forks, North Dakota; and similarly two miles back from either side of the Assiniboine River from the Forks to a point west of present-day Portage la Prairie. The two-mile strip of land on either side of both rivers became known as the “Settlement Belt”.

[30]In addition to these Scottish immigrants, the Settlement grew as a home for fur trade company employees who were retired from or surplus to the HBC and the North West Company. This was particularly so after the two companies merged in 1821 and there occurred a rationalization of operations, resulting in posts being closed and officers and servants being let go.

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[31]Parishes were organized in the Settlement Belt, and to a lesser extent beyond, according to religion and language. Along the Red River, the parishes north of the Forks were all English speaking and Protestant. Those south of the Forks were all French speaking and Roman Catholic. As well, parishes were organized along the Assiniboine River west of the Forks. Those parishes, although still organized according to religion and language, were mixed; that is, some were English Protestant parishes and some were French Catholic parishes. Many of the inhabitants, indeed the majority, were of mixed ancestry.

[32]I note that at the material time, those of mixed English and Indian

ancestry were called “half-breeds” and those of mixed French and Indian ancestry were called “Métis”. The Act called both “half-breeds”. Today, however, both are called “Métis”. In this judgment, my use of the phrase “English half-breeds” will refer to those of English and Indian ancestry, and my use of the phrase “French Métis” will refer to those of French and Indian ancestry at the material time. My use of the word “Métis” will refer to both the English half-breeds and the French Métis, then and now.

[33]For a period of time between Lord Selkirk’s death in 1820 and

approximately 1835, the Settlement was administered by his executors in conjunction with the HBC. In approximately 1835, the HBC purchased the interest of Lord Selkirk’s estate in the grant which had been provided to him in 1811 and assumed the rights so granted.

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[34]In 1835, the governor of the HBC commissioned George Taylor to survey settled portions of the Settlement (the “Taylor Survey”). The Taylor Survey

covered approximately 20 miles on either side of the Forks along the Red River and approximately 25 miles from the Forks west along the Assiniboine River. It continued and/or confirmed landholdings in long, narrow lots that fronted on the rivers and stretched back the two-mile limit of the Settlement Belt.

[35]The Settlement was laid out in such lots, which were numbered from 1 to 899 on the Red River and from 911 to 1528 on the Assiniboine River. Once the Taylor Survey was completed, the HBC began entering the names of the legal owners of the lots (i.e., those who had received a form of title from the HBC) in

a land registry book called “Register B”. But, registration of land ownership was voluntary and as land changed hands, registration of ownership often did not occur.

[36]As well, there was a tradition of land tenure in the Settlement based on occupation. This occurred largely, but not exclusively, outside the limits of the Taylor Survey. Some of this land was inside the Settlement Belt and some of it was outside. Indian title had been extinguished respecting land inside the Settlement Belt by reason of the Selkirk Treaty (or Peguis Treaty) of 1817, but continued respecting land outside the Settlement Belt. The HBC did nothing to prevent such land tenure based on occupation.

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[37]Following the merger in 1821 of the North West Company and the HBC, the new governor, Sir George Simpson, in order to persuade the large French Métis settlement at Pembina (approximately 70 miles south of the Forks and since 1818 in American territory) to relocate on British territory, granted their

leader, Cuthbert Grant (“Grant”), a tract of land on which to settle his kinsmen. This land was on the Assiniboine River at White Horse Plains approximately 12 miles west of the Forks. Thus began a large French Métis settlement headed by Grant, first known as Grantown but thereafter as the Parish of St. François-Xavier.

[38]In addition to their land, the river lot owners enjoyed haying rights. Over the years a practice developed of people cutting hay on the lands immediately beyond the depth of their river lot. Commencing in approximately 1839, the governing authority in the Settlement, the Council of Assiniboia began to pass laws which gave river lot owners within the surveyed portion of the Settlement Belt the exclusive right to cut hay for a further two miles beyond but within the width of their own river lot during certain periods of the year. Accordingly, in the area of the Taylor Survey, not only did the landowners claim the first two miles

from the river (the “inner two miles”), they also claimed a right of use over the next two miles (the “outer two miles”) for haying purposes. Beyond the four miles was what was considered “the common”.

[39]Those lots which did not have access to an outer two miles due to the course of the river or the junction of the two rivers were given hay privileges in

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other areas. Until the date of the transfer of Rupert’s Land to Canada, these landholdings and usages were the “custom of the country” recognized by the HBC and the Council of Assiniboia.

[40]There was also a practice of utilizing land outside of the Settlement Belt for certain purposes, such as grazing or pasturing and cultivation. These lots have been called “park lots” and consisted of choice pieces of prairie land on

which a settler would break and cultivate a few acres.

[41]In the result, as of 1869, the system of land tenure in the Settlement was varied and the recording of landholdings was, at best, sporadic. However, there was a general acceptance of a land tenure system in the Settlement which existed in one of four ways, either:

(1)by way of freehold grants from the HBC;

(2)by way of grants of estates less than freehold from the HBC;

(3)by occupancy with the permission of the HBC within the Settlement Belt, that is, where Indian title had been extinguished; and

(4)by peaceable possession outside the Settlement Belt, that is, where Indian title had not been extinguished.

[42]In addition, some residents enjoyed rights of cutting hay and rights of common.

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[43]In the early years of the Settlement, the economy was based primarily upon farming and the buffalo hunt, both of which were essentially for subsistence purposes only.

[44]Five acres was considered a large plot in the Settlement. Cultivated plots were kept small by the level of farm technology and the absence of a market for surplus production removed any incentive for enlargement.

[45]The buffalo hunt began in the 1820s as the buffalo were no longer located as close to the Settlement as once they had been. But until the 1840s, the main use of the buffalo hunt was for the purpose of personal or family consumption, namely, clothing and food which included the making of pemmican and some small sale of it. There were two hunts per year, the summer hunt, which generally departed in June and returned in late July or early August, and the fall hunt, the smaller of the two, which began in early October with the hunters returning in November.

[46]In the 1840s, the economy of the Métis began to change. The HBC monopoly began to weaken and some markets began to open up. The Métis increasingly took advantage of these opportunities and became more involved as traders. In particular, a buffalo robe trade emerged and the Métis found a market trading with both the HBC and others, including traders in the United States, in return for cash.

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[47]In 1844, a trading post at Pembina had the effect of bringing the American market near the Settlement. From 1844 until 1869, there was a significant increase in trade between the Settlement and St. Paul, Minnesota, and a significant increase in the dollar value of fur sales.

[48]The buffalo robe trade involved not only the hunting and killing of the buffalo but its processing to a finished product ready for sale. The entire family became involved in the operation. As a result, families were absent from the Settlement during the hunt. This new economic activity and the absence of families from the Settlement which it necessarily entailed, resulted in a lessening of the Métis’ pursuit of agriculture.

[49]The buffalo were becoming increasingly distant from the Settlement. But

the best robes were obtained when the animal’s coat was at its heaviest, namely, in the winter. As a result, the buffalo robe trade lengthened and changed somewhat the period of the hunt as it necessitated prolonged absences from the Settlement for those involved, including leaving the Settlement to winter on the plains. This also resulted in some leaving the Settlement permanently and settling anew in areas closer to where the buffalo were located.

[50]As the buffalo robe trade was developing strength, agriculture experienced several years of bad crops. From 1844 to 1848, only once, 1845, was the harvest sufficient to feed the Settlement. By the fall of 1848, the Settlement was bordering on starvation. The 1850s brought better crops, but

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the 1860s were again very poor. The combination of a strong buffalo robe market and very poor crops led to increased abandonment of agriculture by the Métis and some emigration from the Settlement to points west following the buffalo. By 1869, the buffalo were so far west and south of Red River that the buffalo hunt no longer originated in the Settlement.

[51]Canada became a country in 1867 under The British North America Act (the “Constitution Act, 1867”). It consisted of four provinces, Nova

Scotia, New Brunswick, Quebec and Ontario, the western boundary of which was at the head of Lake Superior.

[52]The new country had no jurisdiction or authority west of present-day Thunder Bay, but it had designs on further expansion. Section 146 of the

Constitution Act, 1867 provided for the admission of other colonies or territories, including “on Addresses from the Houses of the Parliament of Canada

…to admit Rupert’s Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses

expressed and as the Queen thinks fit to approve,…”

[53]To accommodate Canada’s intentions for expansion, the Imperial

Government agreed to accept from the HBC a surrender of that part of its 1670 grant which was known as the North-western Territory and Rupert’s Land and, ultimately, to cede that land to Canada.

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[54]Accordingly, Canada was required to negotiate an agreement with the HBC for the purchase of its interest in the land whereupon the HBC would surrender the land to Britain. In turn, Britain, upon its approval of the terms and

conditions for admission of Rupert’s Land into Canada, would accept the surrender from the HBC and would cede the land to Canada.

[55]By address dated December 17, 1867, Canada requested that the Imperial

Government “unite Rupert’s Land and the North-western Territory with this Dominion”.

[56]On April 23, 1868, the Colonial Secretary in Britain advised that he was willing to recommend compliance with the request, but to do so would require an Act of the Imperial Parliament. He placed a Bill before the Imperial Parliament which, effective July 31, 1868, became the Rupert’s Land Act, 1868 (U.K.), 31-32 Vict., c. 105.10

[57]The purpose of that Act was stated therein as being:

An Act for enabling Her Majesty to accept a Surrender upon Terms of the

Lands, Privileges, and Rights of “The Governor and Company of Adventurers of England trading into Hudson’s Bay,” and for admitting the same into the Dominion of Canada.

The preamble to that Act provided, in part:

…It is expedient that the said Lands … so far as the same have been lawfully granted to the said Company, should be surrendered to Her

Majesty….

Section 3 of that Act provided, in part:

10Exhibit 1-0274

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…provided, however, that such Surrender shall not be accepted by Her Majesty until the Terms and Conditions upon which Rupert’s Land shall be admitted into the said Dominion of Canada shall have been approved of by Her Majesty, and embodied in an Address to Her Majesty from both the Houses of the Parliament of Canada in pursuance of the One hundred and forty-sixth Section of the British North America Act, 1867….

[58]This necessitated communications and negotiations between Canada and Britain. These were carried on largely between Macdonald and Lord Granville

(“Granville”), British Secretary of State to the Colonies. In so doing, both Macdonald and Granville made use of Sir John Rose, who had been Macdonald’s Minister of Finance from 1867 to 1869 and thereafter was Macdonald’s confidant, working in London, England, and acting in some respects as a representative of the Government of Canada, and Sir John Young (“Young”), who at the material time was the Governor General of Canada.

[59]These communications and negotiations between Canada and Britain occurred for the most part between mid 1869 and mid 1870. But shortly before and during that period, events occurred in the Settlement which affected the governance of the Settlement and were material to the entry of Rupert’s Land

into Confederation as the Province of Manitoba pursuant to the Act.

[60]Until Manitoba was created, Rupert’s Land, including the Settlement, was

governed by the HBC which had created a governing authority, namely, the Council of Assiniboia. The Council’s makeup included members of the Settlement, some of whom were Métis, with the HBC Governor at its head. In

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the years leading up to union, that governor was William Mactavish (“Mactavish”).

[61]By 1868, the Settlement was aware of the intended union of Rupert’s

Land with Canada.

[62]There existed some concern amongst the people in the Settlement as to the consequences of this union. How would it affect them, their culture and customs? The concern was greater amongst the French Métis who were essentially French-speaking Catholics. They were fearful of an expected influx of immigrants from Canada who would be English-speaking and Protestant, whose coming, possibly in large numbers, they viewed as a threat to their language, religion and culture, including customs and way of life.

[63]This concern was exacerbated when the Canadian government sent a

road building crew to the Settlement in late October 1868. Canada’s intention was in part at least to alleviate starvation in the Settlement.

[64]But Canada had not advised of this intended activity and the first notice that Mactavish or the community had of the expedition was the arrival of its crew superintendent at the Settlement on October 27, 1868 to seek permission from Mactavish to begin work. He granted permission, but the unexpected presence of the work crew and its activities upset some of the residents, in particular, certain of the French Métis who were living on river lots which had not been formally granted to them by the HBC.

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[65]Later, in June 1869, some French Métis came upon individuals pacing out lots near St. Norbert, supposedly for their own use. They confronted the individuals who withdrew. On July 5, 1869, the French Métis of St. Norbert met. They formed patrols to keep strangers from establishing themselves on the land.

[66]On July 29, 1869, William Dease (“Dease”) and several other prominent

French Métis called a public meeting at the courthouse. Dease argued that the £300,000 Canada had agreed to pay the HBC for the transfer of lands was really money which belonged to and should be paid to the people of the North-West as the real owners of the land. Several French Métis at the meeting, including John Bruce (“Bruce”) and Louis Riel (“Riel”), spoke against Dease’s plan and it was soundly defeated.

[67]During this period the Settlement was not kept officially informed of the developments between the Imperial Government and Canada. Rather, the information received in the Settlement came via newspapers and rumor.

[68]Additional anxiety was aroused when, on August 20, 1869, a survey party from Canada arrived at the Settlement under the leadership of Colonel John S.

Dennis (“Dennis”). The presence of Dennis and his survey crew unsettled the French Métis in particular and especially those who occupied land without title from the HBC.

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[69]An unfortunate series of developments followed due in part again to a lack of communication between Canada and those sent by Canada to deal with the land, and the people of the Settlement.

[70]On October 11, 1869, a survey crew projecting a baseline on the “hay allowance” in St. Norbert was confronted by 16 French Métis, among them Riel. The survey crew was turned back with Riel telling the crew it “had no right to

make surveys without the express permission of the people of the Settlement”. The crew withdrew from St. Norbert and was later directed by Dennis to survey closer to the English parishes.

[71]From October 16 to 20, the French Métis held meetings at St. Norbert and St. Vital. They formed the Métis National Committee with Bruce as President and Riel as Secretary and strategized as to what they would do.

[72]During the same period, October 1869, Macdonald sent William McDougall

(“McDougall”) to Rupert’s Land with a commission as Lieutenant Governor. The intent was that McDougall would be present to assume control when the expected transfer of Rupert’s Land to Canada, scheduled for December 1, 1869, took place.

[73]The Métis National Committee was aware this had occurred. On October 21, 1869, a barrier was erected near St. Norbert on the road leading from the U.S. border to Fort Garry and a dispatch was sent to McDougall warning him not to enter the territory without the permission of the Committee.

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[74]Nevertheless, on November 2, 1869, McDougall tried to enter Rupert’s

Land but was turned back by a mounted French Métis patrol. On that same day, Riel and the French Métis seized Fort Garry, which was the Settlement’s centre and principal fortification, and mounted a guard of approximately 120 French Métis to defend it.

[75]Following the French Métis takeover of Fort Garry on November 2, Riel set out to expand support in the Settlement for what they had done. On November 6, 1869, he issued a public notice inviting the English parishes in the Settlement to send 12 representatives to meet with a similar number of representatives from the French parishes to form one body to consider the plight of the Settlement.

[76]On November 16, 1869, those representatives, known as the Convention of 24, convened at the courthouse in Fort Garry surrounded by French Métis guards. On November 23, Riel announced that the French representatives intended to form a provisional government and invited the English representatives to join them. The English representatives were taken aback by this development. They said they would have to consult the people of their parishes as they had no authority to do so. The meeting was adjourned until December 1.

[77]The evidence is clear that by at least mid October 1869, Macdonald was aware of the conditions and unrest in the Settlement and clearly understood their

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significance. An agreement had been reached between Canada and the HBC for purchase of the territory with the anticipated transfer date of December 1, 1869. Until then, however, the territory remained part of British North America. Canada had no authority over it. The HBC was in charge. But with the anticipated transfer, the authority of the HBC and its willingness to actively govern the territory was on the wane and was compounded by the serious illness of Mactavish. And, of course, the French Métis had taken control of Fort Garry. In the circumstances, there was really no authority within the Settlement willing, able and lawfully entitled to govern.

[78]Canada had no authority to send troops to the Settlement to quell the French Métis insurrection. Nor did it have the necessary troops. Moreover, given the time of year, there was no access to the Settlement other than through the United States. But, at the time, there was a concern in Canada about possible annexation of the territory by the United States and hence a reluctance on the part of Canada to seek permission from the United States to send troops across its territory to quell the insurrection and restore authority.

[79]Macdonald concluded that the best approach would be to postpone the transfer, including the payment of the money (£300,000) to the HBC. This would result, he thought, in the HBC or Britain having to address the insurrection

as the governing authority of Rupert’s Land and would avoid Canada having to act. Aside from the logistics problem above described, Macdonald was concerned that if Canada had to act, its conduct might create long-lasting

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animosity between the inhabitants of the Settlement and the government, which could detrimentally affect the union of Rupert’s Land with Canada, the development of the new province, and Canada’s vision of expansion to the Pacific.

[80]Accordingly, Macdonald told Young of Canada’s desire for a delay in the transfer of Rupert’s Land and the North-western Territory until quiet possession could be given.11 On November 26, 1869, the Governor General cabled Granville, communicating the request for delay.12 Granville rejected it. But in the meantime, because of this concern and request, Macdonald, on November 27, 1869,13 wrote McDougall advising him to stay in the United States and not to proclaim his authority over the territory on December 1 as he had been previously directed to do.

[81]Regrettably, in the early morning hours of December 1, not having

received Macdonald’s November 27th letter, McDougall entered a short distance into Rupert’s Land and read his proclamation of takeover. The proclamation was posted in the Settlement.

[82]The Convention of 24 which was to meet in any event on December 1 did so, and the proclamation was read. A discussion then ensued as to the rights of

11Exhibit 1-0329

12Exhibit 1-0330

13Exhibit 1-0332

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the people of the Settlement and as to a guarantee of those rights. The French Métis drew up a list of rights consisting of 15 clauses (the first list of rights).14

[83]The list was discussed and adopted by the Convention of 24 as the

conditions upon which the people of Rupert’s Land would enter into Confederation. The list provided amongst other things that Rupert’s Land would join Canada as a territory, not a province. It required that Canada conclude and ratify treaties with the several tribes of Indians in the territory “to ensure peace on the frontier”. But, it made no provision for denominational schools or for a land grant to the children, including the children of the Métis.

[84]Upon publishing his proclamation, McDougall also issued a commission to Dennis appointing him his Lieutenant and Conservator of the Peace.15 Dennis

was given the responsibility of raising a force to “attack, arrest, disarm or disperse the said armed men so unlawfully assembled”.

[85]On December 6, 1869, Dennis published his commission in the Settlement with a notice of his own attached to the bottom. He called upon all loyal men of the North-western Territory to help him accomplish this. Over the next short period, attempts were made to rally members of the community against the French Métis. However, upon seeing the first list of rights, the community considered them reasonable and was not prepared to become involved in a

14Exhibit 1-0344

15Exhibit 1-0339

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conflict with the French Métis who had been and were residents of the Settlement.

[86]The result of all of this was that Canada was now effectively but not legally in charge of the territory and without any ability to gain control of its governance. Thus, Macdonald and Canada had to find a way to maintain peace in the Settlement while obtaining approval from Britain of the terms and

conditions upon which Rupert’s Land would be admitted into Canada, and while arranging for the transfer of Rupert’s Land to Canada.

[87]To this end, Donald A. Smith (“Smith”), Chief Agent of the HBC at

Montreal, was sent to the Settlement as a Special Commissioner. He followed shortly upon two others, Reverend Thibault and Colonel De Salaberry, who had been sent in a similar capacity. Smith arrived at the Settlement shortly after mid-December 1869. He reported to Macdonald16 and Macdonald wrote him on January 3, 1870.17 In his letter, Macdonald stated:

I have read again the claims set up by the insurgent Half-breeds, some of which are altogether inadmissible, and I now proceed to state to you what we are willing to concede.

He then provided some detail of that.

[88]Macdonald also wrote in his letter:

You are authorized, to invite a delegation of at least two residents to visit Ottawa for the purpose of representing the claims and interests of Rupert’s Land. The representation of the Territory in Parliament will be a matter for discussion and arrangement with such delegation.

16Exhibit 1-0365

17Exhibit 1-0372

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And:

The Indian claims, including the claims of the Half-breeds who live with and as Indians, will be equitably settled.

There is no general Homestead Law in Ontario as you state in your letter, but you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.

These are, I think, the principal points alluded to in your letter,…

[89]Smith met with the community on January 19 and 20, 1870. Following this meeting, what had been the Convention of 24 was expanded into the Convention of 40 (20 French and 20 English representatives).

[90]The Convention of 40 met between January 25 and February 10, 1870. The newspaper, The New Nation, provided an ongoing account of the proceedings of the Convention of 40 during that period.18 On February 5, according to a report in The New Nation, Smith, in speaking to the Convention of 40, said:

I have now on the part of the Dominion Government and as authorized by them to invite a delegation of the residents of Red River to meet and confer with them at Ottawa…. A delegation of two or more of

the residents of Red River — as they may think best — the delegation to confer with the Government and Legislature, and explain the wants and wishes of the Red River people, as well as to discuss and arrange for the representation of the country in Parliament....

[91]On February 10, the Convention of 40 agreed to an amended list of rights (the second list).19 While somewhat different than the first list, it still provided that the area would unite with Canada as a territory. Provincehood would follow

18Exhibit 1-0386

19Exhibit 1-0394

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at some future time. The demand for the conclusion of treaties with the several Indian tribes of the territory continued and there was provision for voting rights but which excepted “uncivilized and unsettled Indians”. Still, however, there was no provision for denominational schools or for a land grant to the children.

[92]During this period, Macdonald continued to press Granville for confirmation that Britain would send troops to ensure a peaceful transfer of the territory to Canada. Granville ultimately confirmed that Britain would do so but imposed two conditions, variously worded but in essence, that simultaneous with the commencement of the expedition, the territory would be taken over by Canada, and that reasonable terms would be arranged with the Red River people so as to take away from the expedition any appearance of coercion.

[93]Unrest continued within the Settlement during the period December 1, 1869 through February 1870. This included attempts or threatened attempts to overthrow Riel and his governing party. There were arrests made by Riel and his followers, releases from arrests, and in some cases re-arrests of opponents who while under arrest were imprisoned in Fort Garry.

[94]Thomas Scott, who had been arrested and in early January had escaped from prison in Fort Garry, was re-arrested and imprisoned. On March 4, following a brief court martial, Thomas Scott was executed.

[95]In the final days of the Convention of 40, the representatives agreed to form a Provisional Government and to send three delegates to Ottawa. The

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delegates were Ritchot, Judge John Black (“Black”), and Alfred Scott. They were each provided with a letter of instructions dated March 22, 1870 and a further list of rights (the third list) from the Provisional Government.20

[96]The third list provided, amongst other things, for the territories known as

Rupert’s Land and North-western Territory to enter Confederation as a province and for the local legislature of the province to have full control over the public lands of the province. The provision as to treaties remained as did the provision excepting Indians from the right to vote. However, there still was no provision for denominational schools or for a land grant for children.

[97]The letters of instruction told the delegates that they were free to use their judgment with respect to certain of the clauses on the list of rights but that certain others were compulsory. Moreover, the delegates were specifically told that they were not empowered to conclude, finally, any arrangements with the Canadian government.

[98]The third list of rights was not the final list. It appears that Ritchot carried a list that differed from the third list.21 It included, for the first time, a demand for denominational schools, and the first clause of the list had also been added

to provide for a senate analogous to Quebec’s Upper House. Still, however, there was no provision for a children’s land grant.

20Exhibit 1-0424

21Exhibit 1-0431

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[99]The delegates left the Settlement on March 24, 1870 and arrived in Ottawa on April 11. In due course, discussions commenced between the delegates from Red River and Macdonald and Cartier as representatives of Canada.

[100]In addition, Granville sent Sir Clinton Murdoch (“Murdoch”) to Ottawa, not

to directly participate in the discussions but to be present and available to Macdonald and Cartier so that Granville might be kept apprised of developments in the discussions and he, Granville, might keep Macdonald and Cartier apprised of Britain’s position in respect of them. As well, Lord Northcote was present from Britain apparently representing the interests of the HBC though he, too, did not participate in the discussions.

[101]The discussions between the Red River delegates and Macdonald and Cartier began on April 25, 1870. On May 2, Macdonald introduced for first reading in Parliament the Bill that was to become the Act, although the Bill was not presented in Parliament in printed form until May 4, 1870.

[102]Some understanding of the discussions between the Red River delegates and Macdonald and Cartier can be gleaned from a series of documents, including

Ritchot’s diary,22 excerpts from Northcote’s diary,23 the speeches made by Macdonald and Cartier in Parliament concerning the Bill,24 and other documents.

22Exhibit 1-0005

23Exhibits 1-0436 and 1-0477

24Exhibit 1-0467

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[103]It is clear from the evidence that Macdonald and Cartier intended that Rupert’s Land would enter Confederation as a territory not as a province, with

Canada having legal jurisdiction and control over and effectively governing the territory. And, based upon the first and second lists of rights, this, too, was the intent of the Settlement. But the third list and fourth list (carried by Ritchot alone) had the territory entering as a province with the same rights as were enjoyed by the four extant provinces of Canada, including ownership over the public lands. And this was the position advanced by the Red River delegates in the discussions.

[104]Macdonald and Cartier ultimately accepted the creation of the new province but on the condition, unlike the four extant provinces, that Canada would retain ownership of the public land. Insight into the reasons for that is

found in excerpts from Ritchot’s diary, Northcote’s diary and from speeches of Macdonald and Cartier in Parliament.

[105]In his diary, Ritchot records an entry for Wednesday, April 27:25

Wednesday, at 10 o’clock, we met again at the house of Sir George. Sir John and Sir George were present. They presented us with a draft of a bill, which we discussed at length, then came the question of lands and the control of lands. The plight of the Company played a certain role here, the sale approved by England, the rights of the Indians, the survey, the works to be undertaken, etc. …

[106]Northcote also kept a diary of events. He recorded the following discussion on May 2, 1870 between himself and Cartier as follows:26

25Exhibit 1-0005, page 140

26Exhibit 1-0436, pages 96 and 97

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He [referring to Cartier] said, “We propose to form a small province and to give it a constitution which will be fit for it, but we do not mean to give the local legislature power over the lands, because we have to provide for the extinction of the Indian title, for our engagements to the H.B. Co., and for the construction of a Railway. We therefore mean to keep the power of dealing with the lands in our own hands, making a larger contribution to the provincial expenses than we usually do in consideration of our doing so. But we propose to allot 1,500,000 acres, or thereabouts, to the half-breed population, who seem to have a kind of Indian claim to some land.” I asked, “How are these 1,500,000 acres to be given? Will a block of land be set apart, and will not this affect the Company’s claim?” He said, “It cannot affect the Company’s claim. The Company’s bargain with Canada takes precedence of any other, and if we break it you will have a claim for indemnity from Canada, which I suppose you won’t object to.” I understood him to say further that there would not be a block set apart for the half-breeds, but that each person whose claim to land was recognised would receive an order entitling him to claim his allotment at any time.

I note the language attributed to Cartier which would suggest that he understood the difference between the Indians and the Métis in respect of land. As regards the Indians, he said, “… we have to provide for the extinction of the Indian title….” As regards the Métis, he said, “But we propose to allot 1,500,000

acres, or thereabouts, to the half-breed population, who seem to have a kind of Indian claim to some land.”

[107] On May 4, Northcote recorded the following diary entry:27

I afterwards saw Sir John Macdonald, who showed me the clauses in the bill which affect the Company’s claims. They seem satisfactory. I asked him how the allotments to the half-breeds were to be made, and he said that when blocks were set out the Government would make provision for giving lots to such of the half-breeds as were claimants, taking care not to put them all together.

[108] On May 2, 1870, when Macdonald was speaking in Parliament on the

27Exhibit 1-0436, page 103

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introduction of the Bill for first reading, he said:28

…the object of the residents had been to obtain possession of the whole country. They wished Rupert’s Land made into one Province and to have all the land within the boundary as in other Provinces. … It was pointed out that it was impossible to hand over the country, to be legislated for by the present inhabitants. He pointed out that the Territory had been purchased for a large sum from the HB Co., that settlement had to be made with the Indians, the guardianship of whom was involved, that the land could not be handed over to them, as it was of the greatest importance to the Dominion to have possession of it, for the Pacific Railway must be built by means of the land through which it had to pass.

Again, no reference is here made to the Métis, but to the Indians.

[109]And on May 9, 1870, Cartier in Parliament said:29

The land question was the most difficult one to decide of any connected with the measure; it was one of the most important connected with the welfare of the Territory; it would soon be necessary to construct a railway through Red River and consequently the Dominion Parliament would require to control the wild lands. If the lands were left in the hands of the Local Parliament there might be great difficulty in constructing the

British Pacific Railroad …

[110]The foregoing provides expression of the reasons of Macdonald and Cartier for Canada retaining ownership of the public lands, and as well, their intentions respecting the Métis land grant.

[111]It appears that the Red River delegates understood on April 27 that Canada would retain ownership of the public lands, as it was only when that fact was made clear to the Red River delegates that the idea of the children’s land grant first emerged. The first entry in Ritchot’s diary concerning it appears on

April 27, 1870, though in very general terms.

28Exhibit 1-0467, page 1319

29Exhibit 1-0467, page 1446

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[112]According to Ritchot’s diary, the Red River delegates met at Cartier’s

house on April 28. They were given a draft of a printed Bill and began to examine it. There was no provision in the Bill pertaining to a children’s land grant. Macdonald was indisposed, and the examination was therefore postponed until April 29. On April 29, Macdonald was still indisposed and did not attend. The delegates discussed the Bill with Cartier. Their discussion included the question of a children’s land grant, its size and conditions.

[113] The delegates next met Cartier and Macdonald at Cartier’s house on May 2 at 10:00 a.m. Ritchot’s diary records:30

…Examination and discussion of the draft bill; land question. The ministers offered 1,200,000 acres of land to be distributed among the children of the métis. We discuss anew the form or manner of distributing the lands. We continued to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say: The land will be chosen throughout the province by each lot and in several different lots and in various places, if it is judged to be proper by the local legislature which ought itself to distribute these parcels of lands to heads of families in proportion to the number of children existing at the time of the distribution; that these lands should then be distributed among the children by their parents or guardians, always under the supervision of the above mentioned local legislature which could pass laws to ensure the continuance of these lands in the métis families.

The diary then records “… that evening Sir John revealed in Parliament the tenor of the Bill and explained it.”

[114] On May 2, 1870, Macdonald wrote out in his own hand the following:31

That in order to compensate the claims of the half-breed population, as partly inheriting the Indian rights, there shall be placed at the disposal of the local Legislature one million and a half acres of land to be selected anywhere in the territory of the Province of Manitoba, by the

30Exhibit 1-0005, page 143

31Exhibit 1-0468

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said Legislature, in separate or joint lots, having regard to the usages and customs of the country, out of all the lands now not possessed, to be distributed as soon as possible amongst the different heads of half breed families according to the number of children of both sexes then existing in each family under such legislative enactments, which may be found advisable to secure the transmission and holding of the said lands amongst the half breed families To extinguish Indian claims --

[115]On the evening of May 2, Macdonald made a speech in Parliament in which he introduced and reviewed the Bill. While this was taken as first reading, the Bill was not presented in printed form to Parliament at that time. Concerning the lands of the province he said:32

…With respect to the lands that are included in the Province, the next clause provides that such of them as do not now belong to individuals, shall belong to the Dominion of Canada, the same being within boundaries already described. There shall, however, out of the lands there, be a reservation for the purpose of extinguishing the Indian title, of 1,200,000 acres. That land is to be appropriated as a reservation for the purpose of settlement by half-breeds and their children of whatever origin on very much the same principle as lands were appropriated to U.E. Loyalists for purposes of settlement by their children. This reservation, as I have said, is for the purpose of extinguishing the Indian title and all claims upon the lands with the limits of the Province.

And he went on to say:33

…It is, perhaps, not known to a majority of this House that the old Indian titles are not extinguished over any portion of this country, except for two miles on each side of the Red River and the Assiniboine. The lands that have been granted by deed or license of occupation by the

Hudson’s Bay Company, run from the water or river bank on each side for two miles. But from a practice that has arisen from necessity, and that has been recognized by the local laws there, in the rear of each of these farms or tracts of land held by the farmers or settlers, there is a right of cutting hay for two miles immediately beyond their lots. That is a well understood right. It is absolutely required by these people and excites in them equal interest. The entire extent and value of those rights cannot be well established or fixed here, and it is therefore proposed to invoke the assistance of the Local Legislature in that respect, and to empower it to provide, with the express sanction of the Governor General, for the use

32Exhibit 1-0467, page 1302

33Exhibit 1-0467, page 1303

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in common of such lands by those inhabitants who may wish to avail themselves of it. …

…[I]t is proposed to invoke the aid and intervention, the experience of the Local Legislature upon this point, subject to the sanction of the Governor General. The Government hope and believe that this measure or a measure involving the principle which I just mentioned will be satisfactory to the people of all classes and races in that country.

[116]And Cartier spoke in respect of the Bill and in particular the land grant. He said:34

…The land, except 1,200,000 acres, was under the control of the Government, and these were held for the purpose of extinguishing the claims of the half-breeds, which it was desirous not to leave unsettled, as they had been the first settlers, and made the Territory. These lands were not to be dealt with as the Indian reserves, but were to be given to the heads of families to settle their children. The policy, after settling these claims, was to give away the land so as to fill up the country.

[117]Cartier was asked whether the Constitution (that is, the Bill) was to be

submitted to the people before being passed. He responded, “No.”35

[118]Later in the Parliamentary debate on May 2, having to do with the issue of the land grant, Macdonald said:36

…[T]he reservation of 1,200,000 acres which it was proposed to place under the control of the Province, was not for the purpose of buying out the full blooded Indians and extinguishing their titles.

There were very few such Indians remaining in the province, but such as there were they would be distinctly under the guardianship of the Dominion Government. The main representatives of the original tribes were their descendants, the half-breeds, and the best way of dealing with them was the same as United Empire loyalists had been dealt with, namely giving small grants of land for them and their children.

34Exhibit 1-0467, page 1309

35Exhibit 1-0467, page 1311

36Exhibit 1-0467, pages 1329 and 1330

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[119]There was opposition raised to the Bill in debate and there were suggestions for amendment. Ultimately, Macdonald said that the Bill was, of course, open to amendment.

[120]On May 3, 1870, there was further debate in Parliament. The Hansard Debates evidenced strong animosity on the part of some members towards Riel and his allies, especially due to the insurrection and the murder of Thomas Scott. Annoyance was expressed and the suggestion made that this Bill was the product solely of negotiations with delegates selected and empowered by Riel. Macdonald denied this. As well, he reiterated that the delegates were representatives of the people of Red River having been elected by a council of the inhabitants. They were not representatives of Riel.

[121]In his diary, Ritchot records that on May 3, the delegates had discussions with Cartier as to including Portage la Prairie within the province. The boundaries of the province in the Bill introduced for first reading did not include Portage la Prairie. The delegates agreed to the inclusion of Portage la Prairie but wanted the size of the land grant increased.

[122]In the late afternoon, the delegates met with the Governor General. The Governor General introduced them to Murdoch saying that he had been sent by the Imperial Crown to help settle the affairs of the North-west with the delegates if the delegates could not reach an understanding with Canada.

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[123]As well, on May 3, a telegram37 was sent by Young to Granville stating:

Negotiations with Delegates closed satisfactorily – A Province named

Manitoba erected….

[124]And by telegram dated May 4, 1870,38 from Ritchot to Thomas Bunn

(“Bunn”), Secretary of State for the Provisional Government, at Red River, Ritchot reported:

Bill erecting Province of Manitoba introduced before Parliament. We find it satisfactory. Other points to be settled. We are confident of amicable and acceptable arrangements.

[125]An entry dated May 5 appears in Ritchot’s diary as follows:39

… the Bill appeared very much modified. Several clauses displeased me fundamentally. I saw our colleagues and some friends. We saw Sir George and Sir John; we complained to them.

[126]The printed Bill was presented to Parliament by Macdonald for the first time on the evening of May 4, 1870. There were material changes to it compared to that which was introduced and received first reading on May 2. In particular, Portage la Prairie was now included within the province and the land grant was increased from 1,200,000 to 1, 400,000 acres.

[127]The Bill introduced on May 4 contained as clause 26 (which became section 30 of the Act) the general provision that all ungranted or wastelands in the province would be vested in the Crown and administered by Canada.

[128]Clause 28 (which became section 32 of the Act) contained provision

37Exhibit 1-0472

38Exhibit 1-0473

39Exhibit 1-0005, page 147

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concerning the quieting of titles for those settlers who had either received titles from the HBC or had squatted upon land both within and outside the Settlement Belt.

[129]And as to the children’s grant, clause 27 of the Bill (which became

section 31 of the Act) provided as follows:

27. And whereas it is expedient towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted, that under regulations to be from time to time made by the Governor General in Council, the Lieutenant Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families, residing in the Province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.

[130]Macdonald’s copy of the Bill had a note endorsed upon it immediately

following clause 27 which read:

But the appropriation hereinbefore made will be subject to the requirement of Canada for the same or any part thereof for Railway purposes or for any public works or purposes whatsoever.

This endorsement did not form part of the Bill, but is consistent with his and Cartier’s comments as they appear to have expressed them to the delegates on April 27 concerning the lands generally, as they expressed in Parliament, and as Cartier appears to have expressed to Northcote.

[131]The Hansard Debates record that on May 4, 1870, Macdonald moved second reading of the Bill. He then spoke to the increase in the size of the land

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grant and referred specifically to the provisions contained in clauses 26, 27 and 28 of the Bill.

[132]As regards clause 27, he said:40

…Those clauses referred to the land for the half-breeds, and go toward extinguishing the Indian title. If those half-breeds were not pure-blooded Indians, they were their descendants. There were very few full-blooded Indians now remaining, and there would not be any pecuniary difficulty in meeting their claims. Those half-breeds had a strong claim to the lands, in consequence of their extraction, as well as from being settlers. The Government therefore proposed for the purpose of settling those claims, this reserve of 1,400,000 acres. The clause provided that the lands should be regulated under Orders in Council by the Governor General, acting through the Lieutenant Governor, who should select such lots or tracts in such parts of the Province as he might deem expedient to the extent aforesaid, and divide the same among the children of half-breeds

— heads of families. No land would be reserved for the benefit of white speculators, the land being only given for the actual purpose of settlement. The conditions had to be made in that Parliament who would show that care and anxiety for the interest of those tribes which would prevent that liberal and just appropriation from being abused.

[133]The May 5 entry in Ritchot’s diary to which I earlier referred …41

…the Bill appeared very much modified. Several clauses displeased me fundamentally. I saw our colleagues and some friends. We saw Sir George and Sir John; we complained to them.

…continued as follows:

…They declared that in practice it amounted to the same thing. For us they promised that they would give us by order in council, before our departure, assurance of the carrying out of our verbal understandings; but that for the present it would be impossible to get the Bill passed if one changed its form, that they would have a bad enough time to get it passed just as it was, that in any case we had nothing to fear, our verbal agreements were known and approved by the ministry who had promised to give us the order in council for the execution of our understandings.

The two ministers seeing that we were strongly opposed promised us, among other things, to authorize by order in council the persons we would choose to name ourselves as soon as might be after the Bill should

40Exhibit 1-0467, page 1359

41Exhibit 1-0005, page 147

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be passed — to form a committee charged with choosing and dividing, as may seem good to them, the 1,400,000 acres of land promised. I promised for my part to take the matter into consideration and to yield to their desire, if I could convince myself that I could do it. I saw several friends afterwards who assured me that that would not only be well, but even better. Concerning a great number of comments on my part they said that in all events the Bill as edited was advantageous for us, that it was necessary to strive to get it passed.

[134]Debate resumed in Parliament on May 5. Continued opposition was expressed. Ultimately, Macdonald said full opportunity would be allowed for discussion in Committee.42 The Bill then received second reading and was referred to Committee for discussion the next day. Debate on the Bill did not continue the next day as Macdonald was sick.

[135]Ritchot records in his diary that on May 6,43 “[a]fter a more intense scrutiny of the Bill we went anew to see the ministers, Sir John and Sir George.”

He records discussion of a portion of clause 28 and that he was given assurance of the “desired guarantees” before their departure. As well, he records, “It is impossible to get the Bill passed, if it is changed in this respect.” And he continues:

Seeing that it is impossible to obtain what we ask, we content ourselves with remarking that it would only be in accord with the conditions that we made between us, and which we mutually accept, that we can take it upon ourselves to get them adopted by our people, that without that it would be impossible to see the matter through.

[136]Macdonald was again absent from Parliament on May 7. Nevertheless, the Bill was referred to Committee and debate ensued, some of it in the nature

42Exhibit 1-0467, page 1389

43Exhibit 1-0005, pages 147 and 148

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of strong opposition to the children’s grant.

[137]On May 9, debate in Committee continued. In the course of the debate, Cartier, in response to the remarks of another member threatening to move for deletion of clause 27, responded that he hoped the member would not press such motion. Cartier continued:44

…The land question was the most difficult one to decide of any connected with the measure; it was one of the most important connected with the welfare of the Territory; it would soon be necessary to construct a railway through Red River and consequently the Dominion Parliament would require to control the wild lands. If the lands were left in the hands of the Local Parliament there might be great difficulty in constructing the British Pacific Railroad, although the Dominion Government held the control of the lands it was only just to give something in return for them. Thus arose the reserves. Was it not just and liberal to provide for the settlement of those who had done so much for the advancement of the Red River country — the Indian half-breeds? The intention of the Government was to adopt a most liberal policy with respect to the settlement of the Territory.

The Opposition moved to delete clause 27 from the Bill, but that motion was defeated.

[138]Ultimately, on May 10, after extensive debate and opposition motions for deletion of many of the clauses in the Bill, the Bill was read a third time and passed. The Bill went to and passed the Senate and on May 12 received Royal Assent. By telegram that day45 to Granville, Young reported, “Bill for Govt. of

N.W. passed sanctioning conditions agreed upon with Delegates — [Parliament] prorogued today.”

44Exhibit 1-0467, page 1446

45Exhibit 1-0486

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[139] On May 18, Ritchot wrote Cartier.46 In his letter he raised concerns about three issues, namely, the children’s grant, provision as to the quieting of titles in that part of the province in which Indian title had not yet been extinguished, and the question of the amnesty for Riel and his followers. He asked that Cartier secure for them before their departure all the guarantees promised by him and Macdonald in relation to these questions.

[140]On May 19, Cartier took Ritchot and Alfred Scott to visit the Governor General. Ritchot records in his diary the nature of the discussion with the Governor General.47 The discussion as he recorded it pertained to the amnesty

and the quieting of titles, not to the children’s grant. There is nothing in his journal describing that meeting with the Governor General which pertains to the children’s grant nor is there any indication of a direction or authorization from the Governor General to Cartier to write to Ritchot concerning the children’s grant.

[141]Following that meeting the Governor General reported to Granville:48

I have this afternoon taken leave of two delegates Father Ritchot and Mr. Scott and they have both expressed themselves to me as completely satisfied with the provisions of the Manitoba Act and their belief that it will be accepted as a friendly and generous settlement by the people of the New Province.

[142]The evidence discloses that to the knowledge of Macdonald and Cartier,

the Canadian government had been advised by Granville that it would be

46Exhibit 1-0493

47Exhibit 1-0005, page 154

48Exhibit 1-0494

2007 MBQB 293 (*)

required to accept the decision of the Imperial Government on disputed points in the settlers’ bill of rights. Having expressed this condition, however, the Imperial Government never became so involved. There were no complaints made by Ritchot or the other delegates, nor advice from Murdoch or Young that Imperial Government intervention was required. The Imperial Government accepted the assurance of Young without inquiry.

[143]On May 23, Cartier wrote Ritchot and Alfred Scott49 both with respect to the fourth paragraph of section 32 of the Act and with respect to the amnesty.

[144]The letter, which contained two postscripts, read as follows:

Gentlemen — With reference to the representations you have submitted respecting the fourth paragraph of Section 32 of the Act to establish and provide for the Government of Manitoba, in which it is stated that “all persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council, I am in a position to give you the assurance, on the part of the members of the Government, that so soon as the Government can grant the necessary titles, no payment shall be required from any of the persons mentioned in that paragraph, but that they shall be placed upon the same footing as the persons mentioned in the three preceding paragraphs.

I desire to call your attention to the interview you had with His Excellency the Governor General on the 19th instant, at which I was present, and in which His Excellency was pleased to state that the liberal policy which the Government proposed to follow in relation to the persons for whom you are interesting yourself is correct, and is that which ought to be adopted.

I have the honor to be, Gentlemen,

49Exhibit 1-0499

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Your obedient servant, (Signed,) Geo. Et. Cartier,

Minister of Militia and Defence.

To Messrs. Ritchot and Scott,

P.S. — You can at any time make use of this letter, in such manner as you shall think proper, in any explanation you may have to give connected with the object for which you were sent as delegates to the Canadian Government.

(Signed,) G. E. C.

I have, moreover, the honor to assure you, as well on my own behalf as on behalf of my colleagues, that as to the million four hundred thousand acres of land reserved by the 31st section of the Manitoba Act, for the benefit of the families of half-breed residents, the regulations to be established from time to time by the Governor General in Council, respecting that reserve, will be of a nature to meet the wishes of the half- breed residents, and to guarantee, in the most effectual and equitable manner, the division of that extent of land amongst the children of the heads of families of the half-breeds residing in the Province of Manitoba at the time when the transfer is to be made to Canada.

I have the honor to be, Gentlemen, Your obedient servant,

(Signed,) Geo. Et. Cartier,

Minister of Militia and Defence.

[145]It is not entirely clear when the latter postscript was added to the letter, but it appears from an entry in Ritchot’s diary that it was a follow-on to the letter. His May 27th diary entry50 reads as follows:

May 27 Friday. Interview with Sir George on the subject of the petition which he approves. He gave me the letter which he [had] promised me and which he had made out in the name of his colleagues and of the Governor General.

After [indecipherable]. I hand it back to him to get him to add some guarantees on the subject of the 31st clause of the Act regarding the choice and division of lands that were to be distributed to the children. He promised me to see to it.

50Exhibit 1-0005, page 156

2007 MBQB 293 (*)

[146]There is nothing in that diary entry which records when it was that Ritchot received the letter in finished form, that is, with the second postscript as part of the letter.

[147]On June 23, 1870, the Imperial Government passed an Order in Council

admitting Rupert’s Land and the North-western Territory into the union of Canada effective July 15, 1870.51

[148]On June 24, 1870, Ritchot, having returned to Red River, appeared and addressed the Legislative Assembly of Assiniboia.52 The May 23 letter from Cartier was presented and was read to the Assembly by Bunn. Ultimately, a

motion was made, “That the Legislative Assembly of this country do now, in the name of the people, adopt the Manitoba Act, and decide on entering the Dominion of Canada, on the terms proposed in the Confederation Act.” That motion was seconded and passed unanimously.

[149] On July 6, 1870, Young sent a secret message to Granville53 reporting that Archbishop Taché (“Taché”) had sent a letter to Cartier urging the expediency of granting an amnesty for all offences committed by the Provisional Government including the trial and execution of Thomas Scott. In that report, Young said, in part:

It is quite sure that the inhabitants of Ontario – the [east-mags] are violently opposed to an amnesty, and ill satisfied with many of the

51Exhibit 1-0509

52Exhibit 1-0512

53Exhibit 1-0518

2007 MBQB 293 (*)

provisions of the Manitoba Bill which they denounce as a surrender to the French Priest Party.

I hope Her Majesty’s Government will be willing to decide the question and take the responsibility of deciding it upon themselves, for I do not think that the Canadian Government is strong enough to do so. The mere discussion of the question in Canada rouses up all the dormant jealousies and animosities between the French speaking and the English speaking portions of the populations. The English speaking Roman Catholics seem so far as I can learn to be arrayed against the French speaking Roman Catholics. It is a division of races rather than of religion.

[150]And on July 16, 1870, Bishop Machray, the Anglican bishop of Rupert’s

Land, wrote the Governor General54 a follow-up letter to his earlier letter of March 17 expressing his views upon the troubles at the Settlement. In his letter he expressed concern for the “extraordinary delay in the advance of the troops” which he said was creating a very dangerous condition of things in the Settlement. He asserted that a considerable majority of the people, including almost all of intelligence and substance, are against the Provisional Government. He talked about the animosity between the French and the English. And he also alluded to the children’s grant as follows:

Then the grant of 1,400,000 acres to the half breed part of the community is a most dangerous provision — This will have to be wisely — most wisely administered. If not I am sure that before many years there will be a revolution upsetting the whole arrangement. A far better course for the half-breeds — a regard for whom I consider most right — would have been to have enacted a free grant of 200 acres for any new settler but say 300 for a half-breed — Any attempt to limit a special tract of country to a special class of the people and religion — leading to land not being improved and occupied — is greatly to be deprecated in the general interests of the community and of the religious body itself — for I am sure [such] an arrangement will not in the end be suffered to stand and it will create endless agitation and annoyance.

54Exhibit 1-0519

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[151]On April 17, 1871, a joint address from the Canadian Parliament was sent to England and on June 29, 1871, The British North America Act, 1871

(U.K.), 34-35 Vict., c. 28, was finally assented to by the Imperial Parliament.

(2)Facts Material to Implementation of the Section 31 Grants

[152] On July 30, 1870, Archibald was appointed Lieutenant Governor of Manitoba. On August 2, 1870, he was appointed “Administrator on behalf of the Government of Canada of the ungranted or wastelands in that Province vested in the Crown”.

[153]By separate instrument dated July 30, 1870, he also was appointed Lieutenant Governor of the North-West Territories.

[154]Archibald received instructions from the Under Secretary of State for the Provinces on August 4, 1870,55 relative to his appointments as Lieutenant Governor of, and as Administrator of the ungranted or wastelands in, Manitoba.

[155]The work to be done by Archibald pursuant to these instructions was extensive. Amongst other things, he was to form a government on an interim basis which included selecting and appointing members of his Executive Council, selecting heads of departments of the government, and appointing the members of the Legislative Council. He was to organize electoral divisions, both provincially and federally. He was to undertake a census. He was to provide

55Exhibit 1-0553, pages 4 to 7

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reports to the Federal Government as to the state of the laws and the system of taxation then existing in the province, and as to the state of the Indian tribes, their numbers, wants and claims, along with any suggestions he might have with reference to their protection and to improvement of their condition. He was to report generally on all aspects of the welfare of the province.

[156]Aside from the foregoing, he also received extensive instructions as to the undertakings which he should fulfill as Lieutenant Governor of the North-West Territories.

[157]Archibald arrived in Fort Garry September 2, 1870. He reported from time to time to the Secretary of State for the Provinces as to the community activities at Fort Garry and within the province. Clearly he was very busy. An example is his report of September 17, 1870. He wrote:56

I have been obliged to write in great haste. In the primitive condition of affairs here, the most trivial matter must be brought to the notice of the Governor, and from morning to night I have not a moment to myself, and in this case I have been obliged to begin this letter after the hour named for the close of the mail, keeping it open until I shall have completed it.

[158] The census was completed and reported upon by December 9, 1870.57 The census reported just under 12,000 persons in the province, consisting of 1,600 white Europeans, approximately 560 Indians, approximately 5,700 French half-breeds, and just over 4,000 English half-breeds. As well, the census recorded that there were approximately 6,000 half-breeds (both French and

56Exhibit 1-0553, page 16

57Exhibit 1-0541

2007 MBQB 293 (*)

English) 20 years of age or under, plus 1,615 between the ages of 20 and 30.

[159]Archibald was instructed to provide his opinion, which he did December 20, 1870,58 as to the regulations which should be made respecting subsection 32(5) of the Act for ascertaining, adjusting and commuting by land grants from the Crown the rights of common and of cutting hay enjoyed by the settlers.

[160]His letter of December 20, 1870, related generally to landholdings as they existed within the province at July 15, 1870, and his expression of views to the Federal Government concerning that land on a go-forward basis. He took issue

with Dennis’s scheme for the surveys in the North-West. Archibald recommended the scheme of survey as it then existed in the United States, which he asserted was a system known all over the world to the emigrant classes. That system of survey he described was the system of 6 miles square, subdivided into 36 square miles, each of those again subdivided into 4 square lots of 160 acres each.

[161]In addition, he was instructed to report his opinion to the Under Secretary of State for the Provinces for the information of the Governor General, which he did December 27, 1870,59 as to the regulations which should be made by the Governor General in Council under section 31 of the Act “for the selection of

lands to the extent therein mentioned, from among the ungranted lands in the

58Exhibit 1-0546

59Exhibit 1-0548, a duplicate at Exhibit 1-0547

2007 MBQB 293 (*)

Province of Manitoba, and their division among the children of the half-breed heads of families residing in that Province at the time of transfer of the same to Canada, together with the mode and conditions, as to settlement or otherwise, which you may consider desirable to embody in such regulations.”

[162]Archibald recommended that the section 31 lands should be subject to survey conducted under the general system (i.e., the system which he had recommended).

[163]As well, with respect to section 31 of the Act, he wrote as follows:

The title recognized as Indian, is the title of the natives who have made any particular portion of the Country their home. Each tribe is divided into families, and each family considers as its own, in a certain sense of exclusiveness, though not in the absolute sense we attach to ownership, the particular parts of the Country, where the family lives, and hunts, and roams.

Now, as regards the Province of Manitoba, that was originally in the possession of some tribes of Crees, till shortly before the arrival of the English settlers, when they either abandoned their homes in search of a more Western Country or were driven out by the Saulteaux, who pressed upon them from the East, and whose original home is the Country lying between this and Lake Superior. Some few Crees remained, some Indians, assuming to be Cree Chiefs uniting with others assuming to be Saulteaux Chiefs, concurred in the deed to the Earl of Selkirk referred to in a previous despatch.

The Indian rights, whatever they may be, belong to families of these two tribes. But many of the Half-breed inhabitants of Red River are not descended from any family or tribe of either Crees or Saulteaux.

The Half-breed population of this Province is largely from beyond the Province. White men, who have lived in the most remote parts of this Continent, and have formed connexions with Indian women of the interior, as they advance in years remove to Red River, and there is not probably a tribe of natives between this and the Rocky Mountains, or between this and the North Pole, or between this and the Coast of Hudson’s Bay or Labrador, which is not to some extent represented in the Half-breeds of Red River.

2007 MBQB 293 (*)

The words therefore, “towards the extinguishment of the Indian Title in these lands” if they were really meant to apply to those who could have any claim, as descendants of the tribes who occupied the Lands of Manitoba, would exclude all Half-breeds whose Indian Ancestors were not of certain Tribes and Families; but I presume the intention was not so much to create the extinguishment of any hereditary claims (as the language of the Act would seem to imply) as to confer a boon upon the mixed race inhabiting this Province, and generally known as Half-breeds. If so, any person with a mixture of Indian blood in his veins no matter how derived, if resident in the Province at the time of the transfer would come within the class of persons for whom the boon was intended.

He thus recommended that each half-breed should be included in the section 31 grant.

[164]Archibald instructed Molyneux St. John (“St. John”) to make inquiry and

report upon the landholdings within the new province, both from a recent historical perspective and for the future pursuant to the provisions of the Act including section 31. St. John reported to Archibald on January 3, 1871.60 In that report he noted the divergence of desires as to the location of the section 31 land. He wrote:

With reference to the distribution of the land set apart by the 31st clause of the Manitoba Act I should inform your Honour that there is a difference of opinion both as to the way in which the land could be most desirably located, and the manner in which its possession should be regulated. Some persons desire to take their share in the neighbourhood of the lands now occupied by themselves; others would prefer to receive it in parts remote from their present holdings with the view of obtaining hay and better grazing country.

[165]St. John then expressed his views concerning the location of the grant, the possible use of scrip and other related issues.

60Exhibit 1-0557

2007 MBQB 293 (*)

[166]Having received Archibald’s recommendations, the Federal Cabinet in early 1871 began to establish its policy with respect to the land in Manitoba and the provisions of the Act.

[167]Order in Council March 1, 1871, was issued. It was the subject of debate in the House of Commons on April 6, 1871. During that debate, McDougall stated that the 1,400,000-acre grant should not be divided amongst all half- breed residents but rather should be limited to the children of the half-breed residents. He was ignored. Order in Council March 1, 1871, was amended (although not concerning matters respecting section 31 of the Act) and was replaced by Order in Council April 25, 1871.61 The acceptance of Archibald’s

recommendation as to who was entitled to share in the section 31 grant and the rejection of McDougall’s position would result in a delay in the implementation process.

[168]Order in Council April 25, 1871, adopted the general system of survey proposed by Archibald and established the mode for dealing with the section 31 grant.

[169]It provided that townships containing 1,400,000 acres would be reserved and divided among all half-breed residents and their children. The number of acres to which each person would be entitled would be based upon the census.

61Exhibit 1-0608

2007 MBQB 293 (*)

As the census completed December 9, 1870, recorded approximately 10,000 Métis residents in the province, each would be entitled to 140 acres.

[170]The Order in Council provided that the Lieutenant Governor would designate the townships or parts of townships in which the allotments to the half-breeds would be made and described the mode of allotment, namely, distribution by way of random lottery. It also provided that there would not be any conditions of settlement imposed with respect to the half-breed grant, and

there would be no restrictions as to the grantee’s power of dealing with their lands when granted, other than those which the laws of Manitoba might prescribe.

[171]The new province, of course, did not exist in a vacuum. Neither did time nor life stand still. In the spring of 1871, new immigrants began to arrive in Manitoba and take up land. But those entitled under sections 31 and 32 had received nothing concrete under the Act. This caused anxiety and unrest amongst the old residents, including the Métis.

[172]Six members of the Legislative Assembly of Manitoba wrote Archibald on May 24, 1871,62 requesting assurance on behalf of the old inhabitants concerning the rights of common and the rights of cutting hay which they had enjoyed, and on behalf of the half-breed population concerning the possession of the lands guaranteed to them under the Act.

62Exhibit 1-0620

2007 MBQB 293 (*)

[173] On May 26, 1871, the Federal Government passed an Order in Council,63 which allowed new immigrant settlers to take advantage of the homestead and preemption provisions contained in Order in Council April 25, 1871, even though the public survey was not completed. The passage of this Order in Council and the continuing arrival of immigrants increased the level of concern.

[174]On June 9, 1871, Archibald wrote a letter64 responding to the May 24 letter set forth above. Both letters were published in the local newspaper. In his response, Archibald made reference to Order in Council April 25, 1871, and continued as follows:

By these rules, I perceive that it will be left to the Lieutenant Governor of this Province to designate the townships, or parts of townships, in which the allotments to the Half-breeds shall be made.

Should I be called upon to act under this rule, I shall consider that the fairest mode of proceeding will be to adopt, as far as possible, the selections made by the Half-breeds themselves.

Wherever, therefore, any Parish of Half-breeds, or any body of Half-breeds, shall have made choice of a particular locality and shall have publicly notified the same in such manner as to give notoriety to the fact of their having made such a selection and having defined the limits thereof, so as to prevent settlers entering upon the tract in ignorance of the previous selection, I shall if the duty should fall to me of acting under the rule laid down by the Governor General, be guided by the principle I have mentioned, and confirm the selections so made, so far as this can be done without doing violence to the township or sectional series.

When Archibald wrote this letter, he was not aware of the passage of Order in Council May 26, 1871.

63Exhibit 1-0622

64Exhibit 1-0620

2007 MBQB 293 (*)

[175] On June 17, 1871, Archibald wrote Joseph Howe, the Secretary of State,65 as to his published letter of June 9, 1871. In his letter, he advised Howe of the uneasiness within the province concerning the half-breed grant resulting from the arrival of immigrants who were beginning to take up land as they arrived. He described very generally the results of this unease and in reference to his June 9, 1871 response, said:

I should have hesitated about replying if the situation had allowed me any choice, but I felt bound to give some answer, at the risk even of not being sustained by His Excellency the Governor General.

He sent Howe a copy of both the May 24 and June 9 letters.

[176]Both before and after Archibald’s June 9, 1871, letter, meetings were held

at the parish levels and publications appeared in the local newspapers describing by metes and bounds those lands from which the Métis felt the section 31 land grant should be allotted.

[177]Howe did not respond to Archibald’s letter of June 17, 1871, until

November 4, 1871.66 He then expressed regret about Archibald’s June 9, 1871, letter and suggested that, with respect to land issues in the province, Archibald advise the citizens that he had nothing to do in the matter. He suggested that Archibald “leave the Land Department and the Dominion Government to carry out their policy without volunteering any interference”.

65Exhibit 1-0633

66Exhibit 1-0658

2007 MBQB 293 (*)

[178]Gilbert McMicken (“McMicken”) was appointed Dominion Lands Agent in

Manitoba in the fall of 1871. He wrote Macdonald on November 12, 1871.67 He told Macdonald the half-breed claims could be acceptably resolved and undertook to provide a plan for so doing.

[179]In his annual report as Immigration Agent dated December 30, 1871, McMicken wrote:68

It does not come within the scope of my duty here to deal with the question of the Half-breeds grant, but I may be allowed to say that very erroneous impressions have been created in regard to it, and the

circumstances surrounding it. Whatever the precise method of distribution the Government has determined, or may determine upon, in reference to it, the selection as made in behalf of the Half-breeds was not “per Se” on the ground of the better quality of the land, but more especially in view (as regards the French Half-breeds more particularly) of keeping them intact as a community, in contiguity to their old settlements, and with a view to assuring and maintaining their religious and political interests and privileges. …

[180]The plan to which McMicken referred in his November 12, 1871, letter was set out in a memorandum of January 5, 1872.69 It proposed an issue of transferable scrip redeemable in Dominion Lands reserved for the purposes of the grant. His proposal was poorly received locally and led to increased agitation in Manitoba.

[181]Taché wrote Macdonald on January 23, 1872,70 concerning McMicken’s

proposal. In his letter, he wrote in part the following:

The half-breeds have been promised the selection and distribution of their lands in such a way as to please them and they expect fairness on

67Exhibit 1-0660

68Exhibit 1-0664

69Exhibit 1-0670

70Exhibit 1-0680

2007 MBQB 293 (*)

that point. The scheme, proposed by Mr. McMicken, is entirely opposed to their wishes and interests, so much so that, if adopted by the Government, they will feel frustrated in their expectations, deceived by the Government and a feeling of uneasiness would prevail to a large extent.

The order in Council of the 25th of April last states that: “The Lieutenant Governor of Manitoba shall designate the Townships or parts of townships in which the allotment of the half-breeds shall be made.” This official document in hand and in face of the prevailing uneasiness and excitement, Governor Archibald thought proper to make the selection in order to please the half-breeds. I am entirely satisfied that he acted wisely and in the interest of the Canadian Government as well the Province of Manitoba and no doubt he and we would feel very much the adoption of a scheme which would be considered as an entire condemnation of his policy.

I hope that the order in Council of the 25th April last, will be maintained and that the Lieutenant Governor will not be embarrassed with new regulations, which would involve the condemnation of his first action, along with the danger of bringing new elements of discord to this country.

[182]On February 8, 1872, the Legislative Council and Assembly of Manitoba by joint address to the Governor General of Canada71 expressed concern that with the delay in the making of the grants, the public lands, from which the grant would come, would not be in the same or in as good condition when the grants were made as they were at the time that the grant came into existence. This was because new settlers were being allowed to take up land and also were removing timber from land for purposes of their homes, etc. The address also requested that Canada honour the selection of reserves which had been made by the Half-Breed population. The joint address recorded that they “respectfully

submit that the reserves in block taken by the Half-Breed population are in

71Exhibit 1-0687

2007 MBQB 293 (*)

accordance with the letter and spirit of an official document signed at Ottawa on the 23rd of May, 1870” and “that these reserves so made have received the unqualified approbation of the high functionary to whom was directed the charge of this matter by Order in Council April 25, 1871, and that the result of these reserves being so laid off has been to avoid agitation which is always hurtful to a young province and that the confirmation of these reserves will give the greatest satisfaction.”

[183]In addition, the joint address expressed the Legislative Assembly’s wish:

That this grant constitutes an absolute right of property in favour of the recipients, and that the considerations for which the grant was given entitled the recipients to the rights assured by common law to the owners of individual property.

And further:

We, the Legislative Council and Legislative Assembly of Manitoba, with the view of efficiently protecting the rights of Half-Breed minors, respectfully approach Your Excellency to request that the privilege be given to them by the Dominion Government of naming administrators or guardians to take charge of the administration of the land reserved and set apart for the Half-Breed minors, and to declare that the lands coming to the Half-Breed by virtue of this reserve be considered as assigned rights in the first degree ….

[184]The Federal Government did not reply to that joint address for almost a year until January 27, 1873.72 In its reply, Canada told Manitoba that the Governor in Council, by regulations to be made from time to time, had the sole power to regulate the distribution of the grant to the half-breeds individually and the issue of patents therefor.

72Exhibit 1-0802

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[185]Following the February 8, 1872, joint address, McMicken and Dennis, by letters dated February 24, 1872,73 and March 22, 1872,74 respectively, urged the Secretary of State to proceed with the selection of lands for the half-breed grant. McMicken described as most urgent the final disposal and apportionment of the

1,400,000 acres granted to the half-breeds by the Act and suggested:

… that the distribution be made generally from the Localities indicated as the selection on the part of the Half-breeds — reserving such portions as shall be necessary to make up the portion to which the Hudson’s Bay

Company have a claim in each Township and also the portions to be set apart for School Lands reservations.

[186]As well, he wrote: “The rights of all those who have taken up Lands for

settlement within the localities referred to, under the privilege granted by the existing regulations should be respected” and that “They should be granted the privilege (which under the present regulations they have not now) of selling their claims and improvements and taking up either Homestead or Preemption claims in other directions as they may select. The option remaining entirely with themselves.”

[187]Dennis, in his letter, concurred in those comments of McMicken and advised that the surveys were sufficiently far advanced to permit this occurring.

[188]This led to a report dated March 27, 1872, from J.C. Aikins (“Aikins”),

Secretary of State for the Provinces, to the Governor General75 and as a result to

73Exhibit 1-0690

74Exhibit 1-0695

75Exhibit 1-0696

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passage of Order in Council April 15, 1872.76

[189]That Order in Council recited that the surveys in Manitoba were sufficiently far advanced to enable a selection of the 1,400,000 acres to which, by the Act, the half-breeds were entitled and that the Lieutenant Governor of Manitoba be instructed to make selections of townships in such number as is necessary to make up 1,400,000 acres, reserving in all cases from every township so selected sections for the HBC lands and the lands which may be required for school purposes. The Order in Council also provided that:

…care be taken … that only a due proportion of the woodlands of the

Province be included in the 1,400,000 acres of land to be granted to the Half-breeds; the remainder of these woodlands being made available for settlers.

[190]By telegram dated July 17, 1872, Aikins instructed Archibald to make the selection of the half-breed lands without delay. Archibald proceeded to do so and reported to Aikins on July 27, 1872.77 He wrote that it would require selection of about 39 townships for the French Métis and about 29 townships for the English half-breeds. He reported that it would be easy in a general way to select a number of townships sufficient to cover the half-breed claims and

“situate in localities likely to present a fair average”, but it “would have been unsafe to make an absolute selection without more accurate information than could be procured without inquiry involving some delay”.

76Exhibit 1-0701

77Exhibit 1-0727

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[191]He, therefore, said that a solution would be to simply withdraw from the market a sufficient number of townships that were likely to be selected before making an absolute selection.

[192]On August 12, 1872, Archibald wrote Aikins78 attaching and reporting

upon a petition from the residents of High Bluff and Poplar Point “on the subject of the land to be allotted to them as their share of the half-breed lands….” He

wrote:

I have been governed in my approximate selection, by a desire, as indicated in that letter, to meet the views of the half-breeds, as far as I can, conformably to the governing idea of making the selection a fair average of Townships, containing no more than a reasonable proportion of wood, etc.

Such a selection is of course much easier to make in Townships, or large blocks, than if in sections or smaller divisions.

As regards the Townships asked for by the inhabitants, there are several exceptional circumstances, which would have to be taken into consideration even if they were at the disposal of the Crown.

[193]He then pointed out that some of the land requested by the half-breeds was located in a narrow belt between the Assiniboine River and the shores of Lake Manitoba, which would give that land a value far beyond its worth as ordinary farm lots. He pointed out that the pending location of the railway would also add further to the value of the land and in addition a large portion of the land being requested had already been taken up under order in council as homesteads for settlement or by purchases, and rights therefore had been acquired to the land which could not be set aside. He wrote:

78Exhibit 1-0730

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In the interests of the public, it is better that the lands there situate should be in the hands of purchasers and settlers, and so be open to the general market, rather than that they should be assigned to Half-breeds, many of whom, being underage, would be incapable of conveying, and thus form as a serious obstruction to the development of one of the most valuable spots in the Province.

[194]He reported, therefore, that he had suggested other land in lieu of some of the land being sought by the half-breeds.

[195]On August 26, 1872, Archibald wrote Aikins79 reporting as to the particular townships which had been preliminarily selected for the half-breeds. He wrote, in part:

You will quite understand that I have not, in their selection, committed myself to the final choice of any particular Townships. The Half-breeds have been made to understand that the only effect of the selection is to have the Townships withdrawn from the market, pending the inquiries required to determine as to their absolute selection, with the understanding that these inquiries should be conducted with as little delay as possible.

[196]In the fall of 1872, Morris replaced Archibald as the new Lieutenant Governor of Manitoba. On November 16, 1872,80 Morris asked Macdonald for authority to announce that a plan for allotment had been adopted and would begin immediately.

[197]On November 20, 1872,81 Morris wrote the Secretary of State for the Provinces, reporting that the half-breed reserves had now been selected by the Lieutenant Governor and that a plan for the allotment of these lands to the

79Exhibit 1-0733

80Exhibit 1-0750

81Exhibit 1-0751

2007 MBQB 293 (*)

individuals entitled to them had been completed. He, therefore, requested authority to begin allotment.

[198]Morris then received a letter dated December 6, 1872,82 from Aikins informing him that the Surveyor General would leave for Manitoba to assist with

the allotment “on the basis of the Order in Council of April 25, 1871”. He instructed Morris as follows:

Previous however to such being done, it would be necessary for you to confirm the selection of townships to meet the 1,400,000 acres reported by the late Lieutenant Governor in his dispatch number 10 of 26 August last ….

[199]Morris proceeded to finalize selection of the townships and on February 22, 1873, began allotment, drawing lots for the individual grants of 140 acres.

[200]Two complications then arose:

(1)The issue raised by McDougall in Parliament in March 1871 resurfaced, that is: Was the grant to be for all half-breed residents or for the half-breed children only?

(2)The hay privilege issue. When the land policies were formulated, the government considered this a minor issue. However, it took on greater import upon completion of the river lot surveys and the start of the section 31 allotments. The river lot surveys did not

82Exhibit 1-0755

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include the outer two miles for the inner parishes (where the hay privilege had been enjoyed) and many old settlers, both Métis and non-Métis, became concerned about possible loss of their interest in the outer two miles by reason of the proposed section 31 allotments.

[201]On March 12, 1873, Robert Cunningham (“Cunningham”), MP for

Marquette, asked the Prime Minister in Parliament whether the heads of families were going to be included in the grant. Macdonald said that they were.

[202]On March 24, 1873, Cunningham again raised the matter, and Macdonald said that the government had come to the conclusion that only the children of half-breed heads of families were entitled to participate in the grant. By Order in Council April 3, 1873,83 the government confirmed this position. The deletion of

heads of families from the children’s grant created problems and delay.

[203]Whereas there were approximately 10,000 half-breeds within the province according to the 1870 census, resulting in the size of the grant being 140 acres per recipient, the removal of the heads of families reduced the number of eligible recipients to approximately 7,000. Accordingly, the size of the grant would now become 190 acres to the children only. As a result, whatever 140-acre allotments had been made by that date were cancelled. A second allotment of 190-acre grants began in August 1873.

83Exhibit 1-0859

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[204]The resolution of the hay privilege issue also took time and resulted in

delay.

[205]In the summer of 1873, the government decided to remove the outer two miles from those townships selected by Archibald and Morris for the section 31 grant. Morris sought advice as to adjustments that would then have to be made to account for this removal.

[206]On August 18, 1873, Lindsay Russell, Assistant Surveyor General, wrote Morris84 advising as to the additional amount of lands required to satisfy the half- breed land grant by reason of the withdrawal of the outer two miles from the section 31 land as had been selected and, as well, suggesting the townships or parts of townships to be used to meet that requirement.

[207]Order in Council September 6, 1873,85 was passed, which withdrew the outer two miles from the land set apart for the half-breed grant and provided that the deficiency would be made up by taking a corresponding amount of land from unclaimed lands at the rear of the allotment. This had the effect of cancelling the earlier selection of those lands that were located within the outer two miles.

[208]Speculators and others acquired the interests of some Métis children in the land grant. This is evident from advertisements in the local newspapers of

84Exhibit 1-0899

85Exhibit 1-0904

2007 MBQB 293 (*)

the time, from statements made before the Commission to Investigate the Administration of Justice in the Province of Manitoba relating to half-breed lands (the “Land Grants’ Inquiry”) in November 1881, from the speech made by Macdonald to the House of Commons in July 188586 referring both to land and scrip, when he said:

The claims of the half-breeds in Manitoba were bought up by speculators. It was an unfortunate thing for those poor people; but it is true that this grant of scrip and land to those poor people was a curse and not a blessing. The scrip was bought up; the lands were bought up by white speculators and the consequences are apparent.

and otherwise.

[209]These people knew various ways in which to acquire the grantees’

interests, which the evidence shows included the use of assignments, of powers of attorney, of penalties, of mortgages attached to the land of the parent of the grantee to become operative in the event of default by the grantee, and of others. There is no question that by 1873, many sales of the interests in section 31 land were occurring. While some of the sales were sales by heads of families who were wrongly given the ability to participate in the grant by Order in Council April 25, 1871, the sales also included sales by children.

[210]During this time, the Manitoba Legislature began to consider legislation designed to ensure that people entitled to section 31 grants would not be taken

86Exhibit 1-1678

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advantage of by speculators or others seeking to purchase their interest. On March 3, 1873, it passed The Half-breed Land Grant Protection Act.87

[211] The preamble to that Act acknowledged the evidence then extant that speculators were buying the grantees’ interests in their land grant. It recited in part that:

…very many persons entitled to participate in the said grant in evident ignorance of the value of their individual shares have agreed severally to sell their right to the same to speculators, receiving therefore only a trifling consideration;

And whereas it is expedient to discourage the traffic now going on in such rights, by protecting the interests of the persons entitled to share as aforesaid, until the Patent issue:…

[212]The effect of the Act was that no promise or agreement made by any half- breed prior to the issue of the patent to sell his or her interest in the grant, would be enforceable against such half-breed and no damages would be recoverable against him or her by reason of the refusal to carry out such promise or agreement. The Act also provided that for any such transaction which may have taken place prior to the passing of the Act, any consideration in money or in goods received by the half-breed, was declared to be a debt owed by the half- breed to the speculator who after the issue of patent might sue for recovery. Such debt together with interest at 7 percent would form a first lien on the land and could be sold at public auction at the end of one year from the date of issue of the patent in satisfaction of the obligation.

87Exhibit 1-0843

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[213]Morris reserved his assent to the Act. On March 17, 1873, he wrote Howe explaining that he had reserved assent to the Act, because of certain concerns as to the legislation saying that the law was novel and retroactive in its character

and he felt “compelled to reserve it for the signification of the pleasure of the Governor General”.

[214]At that time, the Métis constituted the largest ethnic group in the Legislature. Some of the Métis members themselves considered this Act to be an insult to people of Métis ancestry. They felt the Métis people were in all ways capable of looking after their own interests.

[215]On February 21, 187488, A.A. Dorion, Minister of Justice, recommended that the Act be given royal assent. One of his reasons for this recommendation was, as he said:

The undersigned is, however, of opinion that, having reference to the circumstances under which the appropriation of Dominion lands was made for Half-breeds and that it is recited in the bill that very many persons entitled to participate in the grant had agreed to sell their right, whilst, at the same time, they were in perfect ignorance what that right or its value eventually might be, the Act would be beneficial in protecting their interests.

Ultimately, the Governor General gave royal assent to the Act and it was proclaimed in February 1874.

[216]Accordingly, starting in 1874 following the assent of the Governor General to the Act, Métis vendors for the next three years were not bound by agreements

88Exhibit 1-0955

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to sell their interests in land made before the patents to the land issued. And, no patents were issued during that time.

[217]Morris began the second allotment on August 16, 1873. At that time, there was an open question in Manitoba whether binding sales of allotments before patent could be made. This was so because the Act, while passed on March 3, 1873, was still under reserve by the Lieutenant Governor awaiting the pleasure of the Governor General.

[218]As well, as the second allotment began, there arose a discussion and a disagreement between Dennis and Morris.

[219]Dennis raised a question as to the validation of section 31 claimants. He wrote a memorandum dated September 30, 1873,89 reporting that the allotment had already been effected for several of the parishes in the province and recommended that some machinery be put in place to permit investigation to ensure that a person wishing to receive a patent as an entitled allottee was in fact so entitled.

[220]A Commission headed by John Bain and Joseph Dubuc (the Bain and Dubuc Commission) had been created to deal with the settlement of claims respecting rights of common and of cutting hay. Dennis suggested that the Bain and Dubuc Commission might be charged with this additional responsibility.

89Exhibit 1-0910

2007 MBQB 293 (*)

That Commission would be required to visit the different parishes to take evidence in respect of the one task and could easily arrange special sittings at such times to receive applications and take evidence respecting the other. Ultimately, Bain and Dubuc refused to undertake this additional work.

[221]By telegram December 11, 1873, Dennis asked Morris whether it would be necessary to investigate the claims of half-breeds to land allotted or whether he considered the census returns sufficiently reliable to issue the patents. Morris responded on December 12, 1873.90 Morris said that to validate claims of the half-breeds would involve great delay. He suggested instead that it would be better to advertise the list of claimants (grantees) and the lands allotted to them, giving the allotments the same effect as description for patent, subject to proof of identity. He suggested that proof of identity and the claimants’ right to the

land should be established when the claimant picked up the patent. Morris asserted that his suggested plan would satisfy the concern as to entitlement of an individual claimant and would remove the burden of delay from the authorities to the claimant.

[222] Dennis prepared a memorandum dated December 17, 1873,91 in which he reported upon Morris’s plan to publish the recipient’s name along with the land

90Both telegrams are contained in Exhibit 1-0930

91Exhibit 1-0936

2007 MBQB 293 (*)

allotted, but disagreed with Morris’s plan. Morris wrote directly to the Minister on February 11, 1874,92 persisting with his suggested plan.

[223]On February 28, 1874, Donald Codd (“Codd”), Acting Agent of Dominion

Lands, wrote Dennis93 supporting Morris’s position.

[224]Allotments began but problems arose in St. Laurent and St. Boniface where allotments had to be redone because of surveying errors.

[225]Macdonald’s government fell in November 1873. In 1874, Sir Alexander Mackenzie (“Mackenzie”) became Prime Minister of the new Liberal government.

1874 wore on without apparent progress on the allotments.

[226]It was not until February 1875 that the new Minister of the Interior was asked in parliament when the allotment might be made. Amongst other things,

David Laird (“Laird”), Lieutenant Governor of the North-West Territories, responded that it would be necessary for claims to be validated by commissioners receiving evidence as to eligibility.

[227]In February and early March 1875 with nothing having happened, petitions were prepared by various parishes in Manitoba and sent to government ministers for the attention of the Governor General or to the Governor General directly, addressing various land issues under the Act. The petitions94 were

92Exhibit 1-0953

93Exhibit 1-0959

94Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043

2007 MBQB 293 (*)

virtually identical in language and addressed most of the land issues under the Act. In particular, as regards the section 31 grant, complaint was made that nearly five years had elapsed since the passage of the Act and not one grantee was yet “in possession of one acre of said lands or deriving any benefit therefrom”. The petitions stated in part:

3.That 1,400,000 acres of lands in the Province having been set apart as Half-breed Reserves and so continuing to be set apart, and not being in the hands of the Half-breeds either to cultivate or to dispose of is having a very damaging effect upon the prosperity of the Province …

As well, the petitions pointed out the loss in value to the land in that intervening period and asked that inquiry be made into the matters complained of with a view to their early settlement.

[228]Finally, the disagreement between Dennis, Morris and Codd was dealt with by the passage of Order in Council April 26, 1875,95 which provided for the manner in which the allotment and grant of the section 31 lands would go forward. This would, however, be revisited in 1877. The Order in Council provided for the publication of the names of allottees but not for the publication

of their allotments (contrary to Morris and Codd’s proposal) and assigned to a commission the task of taking applications for patents from allottees. It also provided that upon the lists being duly published and distributed for each parish, a commissioner should visit the several parishes successively after having given notice of his intended visit and take any and all evidence tendered on behalf of

95Exhibit 1-1058

2007 MBQB 293 (*)

the claimants for such parish, thereafter making full return to the lands office upon which return the patent should issue forthwith to the parties so entitled and to others respectively upon arriving at the necessary age.

[229]By Order in Council May 5, 1875,96 John Machar (“Machar”) and Matthew Ryan (“Ryan”) were appointed commissioners to investigate the claims of

persons entitled to participate in the section 31 grant.

[230]The Machar/Ryan Commission commenced its work and largely completed it during the balance of 1875. The commissioners compiled separate returns for each parish. These were approved and signed by Dennis and Laird around January 31, 1876. Thus, an authoritative list existed of those entitled to share in the grant.

[231]There was concern that the list might be incomplete because of the

absence of Métis from the province at the time of the commissioners’ attendance at various respective parishes, but it was at least reliable for those whose names were included. Because of that concern, Codd, at the Dominion Lands office, was authorized to receive additional applications and Ryan was authorized to take applications while serving as a stipendiary magistrate in the North-West Territories.

[232] During this time, efforts were being made in Manitoba to amend The

96Exhibit 1-1067

2007 MBQB 293 (*)

Half-breed Land Grant Protection Act, 1873. On May 14, 1875, Manitoba

passed An Act to amend Cap. 46 [sic] Vict. 37, intituled: The Half-breed

Land Grant Protection Act, S.M. 1875, c. 37.97 This Act softened the protections provided under the original Act as it required any vendor who wished to repudiate his or her agreement to sell to pay a substantial refund of the money received plus interest and expenses, failing which the sale was valid and the vendor would be required to assign to the purchaser the lands so granted within three months after receipt of the patent from the Crown. Morris did not reserve his assent to this Bill, but on October 7, 1876, Canada disallowed the Bill on the basis that the original Act provided all necessary protection for the purchase of half-breed land rights.

[233]By this time, 6½ years had passed since enactment of the Act. The evidence discloses that there was pressure not only from speculators and new settlers but from many Métis to enable binding sales before patent. Clearly, between 1874 and 1877, sales of claimant’s interests had continued by various

means.

[234]Following the Machar/Ryan Commission, Order in Council March 23, 1876,98 was passed. It reported that the commissioners appointed to examine into claims for half-breed lands had completed their investigations and that the Department of the Interior was now in a position to commence issuing patents.

97Exhibit 1-1075

98Exhibit 1-1171

2007 MBQB 293 (*)

It also provided that assignments by section 31 claimants before grant of patent would not be recognized by Canada.

[235]Another complication then arose. Nothing further had been done towards the issuing of patents when in the summer of 1876, Dennis expressed concern that the 190-acre allotments might be too large if too many applicants came forward. Accordingly, on July 12, 1876, he wrote Codd99 asking for his views

“whether the 1,400,000 acres will be sufficient in allotments of 190 acres each, to satisfy the number of claims of half-breed children likely to be proved under the Act.”

[236] Codd considered the question and wrote Dennis on August 10, 1876.100 His letter advised that he believed the total number of recipients would not exceed 5,814 and provided the rationale for such belief. The number ultimately was set at 5,833 in order to yield an individual allotment size of 240 acres.

[237]Codd’s proposal was endorsed by the Federal Cabinet and became Order in Council September 7, 1876.101 This resulted in the cancellation of the second allotment and necessitated a third allotment where the grant size would be 240 and not 190-acre parcels. This, of course, resulted in further delay.

99Exhibit 1-1188

100Exhibit 1-1192

101Exhibit 1-1200

2007 MBQB 293 (*)

[238]The third allotment commenced October 30, 1876, 6½ years after passage of the Act. The public notice published October 23, 1876,102 concerning

the third allotment provided that the process would proceed with “all due diligence”.

[239] The third allotment was not completed until 1880. The expressed reason for the delay was that both Codd and latterly Morris’s replacement as Lieutenant Governor, Joseph Édouard Cauchon, did not have the time given their other duties to deal with the allotment and both were unwilling to allow others to participate in the allotment process apparently for fear that confidential information as to the location of the particular allotments would become known to speculators.

[240]On November 2, 1876, shortly after he had begun drawing the 240-acre allotments, Morris wrote the Secretary of State reasserting his earlier proposal that the land specifically allotted to a particular grantee be made known and that the land be vested in the allottee upon completion of allotment for two reasons:

(1)so as to permit the allottee to protect the timber located upon the land allotted, and (2) because of the great extent of land to be allotted, a very long period of time would pass before the issue of patents.

102Exhibit 1-1212

2007 MBQB 293 (*)

[241]On November 18, 1876, the Executive Council of Manitoba sent an address to the federal Privy Council103 in which as regards the section 31 grant it wrote:

With regard to the Half-Breed lands to be allotted to the children, under the Manitoba Act, the Council would urgently request that so soon as the lands reserved for a parish or township are drawn and allotted public announcement thereof should be made, in order that children of full age to whom lands have been allotted may have the opportunity of settling upon and that the parents or guardians of minors may have the opportunity of protecting any timber that may exist upon the land. Council are aware of many young men who are anxiously awaiting the announcement of the lots that have fallen to them, in order that they may settle upon the land if it be suitable. They are also of the opinion that the children of full age should have the right to sell the lands allotted to them so soon as the allotments have been made and confirmed without awaiting the issue of the Patents owing to the length of time that will be occupied before the issue can take place.

[242]This request was rejected by the Federal Government. Order in Council January 17, 1877,104 made clear to the province that it would not be wise “to

enter into any discussion about the policy which ought to be adopted by the Government of Canada in reference to the public lands of the Dominion with the Executive Council of the Province of Manitoba, as the Government are directly responsible to Parliament for the course which they may take upon the subject” and would deal with that issue “in the manner which the Government believe to be most favourable to the public interests, and with a full sense of their responsibility to Parliament and to the people”.

[243] Later in 1877 however, after further address from the Manitoba Legislative

103Exhibit 1-1220

104Exhibit 1-1233

2007 MBQB 293 (*)

Assembly, Canada permitted the publication of allotments. That, of course, was what Morris had recommended in December 1873, but which had been rejected by the Federal Government which had chosen instead to follow the recommendation of Dennis.

[244]On January 22, 1877, Dennis wrote a letter to Taché on behalf of David Mills, Minister of the Interior. For a variety of reasons, he proposed that the

section 31 grant be commuted from land to cash. He sought Taché’s view of such a proposal.

[245]On February 5, 1877, Taché replied.105

[246]In his letter, Dennis had drawn a distinction between those claimants who were at least 18 years and those who were less than 18. In his response, Taché acknowledged the distinction. As regards those over 18, he wrote:

The claimants of class A not being considered as minors, are the owners of their claims, and with them remains the power to dispose of or to retain them as they think proper.

[247]Taché went on to say that if they wished to retain their lands, they could not be forced to sell. And if they wished to sell them, the government, by offering a fair price, could enable that and discourage the designs of speculators.

[248]As regards those who were minors, Taché said that it was impossible to deal with their claims “just now”. He wrote:

The Manitoba Act having received the sanction of an Imperial Act, its provisions cannot be re-adjusted by the Canadian Parliament, and I am

105Exhibit 1-1243

2007 MBQB 293 (*)

very doubtful as to the willingness of the Imperial Parliament to enact for the disposal of lands set apart for minors. For my part I would not feel justifiable in recommending any action which minors, when of age, might deem as having been prejudiciable [sic] to their interests. Scarcity of land in a few years hence may render the children of Half-Breeds better able to appreciate its value than their relatives do at present, and the preservation of their grant may be the only way to secure a footing for them in their native country. What seems an impossibility just now will cease to be so when the claims will mature, and then they might be yearly disposed of in the same way as mentioned in the case of class A.

[249]Once the Federal Government commenced the final allotment, the Manitoba Legislature, on February 28, 1877, passed The Half-Breed Land Grant Amendment Act, 1877106 which, effective July 1, 1877, permitted sales by any Half-Breed having legal right to a lot of land in the grant. It then became safe for a purchaser to make a binding transaction with a section 31 allottee who was over the age of 21. In 1878, Canada decided to allow that Act to stand.

[250]On February 2, 1878, Manitoba passed The Half-Breed Land Grant Act, 1878.107 This Act enabled half-breeds between the ages of 18 and 21 to sell their lands but contained protection against improvident sales by requiring the consent of the parents to the sale and acknowledgment by the person selling separate and apart from the parents, before a judge or two justices of the peace, to guard against unreasonable parental influence. Canada permitted this legislation to stand.

106Exhibit 1-1261

107Exhibit 1-1333

2007 MBQB 293 (*)

[251]On that same date, Manitoba also passed An Act respecting Infants and their Estates,108 which amongst other things established general rules for disposition of the estate and property of infants. This legislation provided that

sales of property needed to be approved by a judge of the Court of Queen’s Bench. The result was that many eligible section 31 recipients sold their interests in lots at varying times and for varying prices.

[252]On June 25, 1879, Manitoba passed The Half-Breed Land Grant Act, 1879.109 This permitted sales by power of attorney by 18 year olds in accordance with the procedure set out in that Act.

[253]On May 2, 1885, Manitoba enacted The Quieting Titles Act, 1885.110

This Act was passed for the purpose of quieting titles in anticipation of the introduction of the Torrens system.

[254]Over time it became apparent that the Federal Government had erred in its estimate of the number of persons eligible for receipt of a section 31 grant. In the result, it granted in excess of 1,400,000 acres but nevertheless left 993 children without land grants. Those children received scrip in lieu of land.

[255]By memorandum to the Minister of the Interior dated May 1884,111 Deputy

Minister A.M. Burgess wrote that there were about 500 claimants whose

108Exhibit 1-1334

109Exhibit 1-1416

110Exhibit 1-1668

111Exhibit 1-1613

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applications had been approved but whose claims were unsatisfied because the land had been “exhausted”. He was unable to explain the error, but recommended that scrip be issued to the children.

[256]For whatever reason action was postponed until April 1885 when Burgess submitted another report in which he explained how this shortage occurred.112

Burgess recommended as equitable that the issue of scrip to each half-breed child who has since proved his or her claim should be for $240.00, the same to be accepted as in full satisfaction of such claim. The $240.00 was based upon 240 acres (being the size of the individual grant) at the rate of $1.00 per acre.

[257]Cabinet accepted this advice and Order in Council April 20, 1885,113 was enacted. It required that all claims had to be filed with necessary proof on or before May 1, 1886, or they would cease and determine. This expiry date was amended and extended on several occasions.

[258]In a speech made by Macdonald to the House of Commons in July 1885, talking about the shortfall of land relative to the number of claimants, Macdonald114 recounted the events leading to this shortfall. He said the following:

If the census that had been taken and returned by Governor Archibald had been accepted there would have been land enough in the appropriation to have settled all trouble, as well for the half-breeds who were actually registered and got their lands as for the half-breeds who

112Exhibit 1-1655

113Exhibit 1-1662

114Exhibit 1-1678, page 3113

2007 MBQB 293 (*)

happened to be away on the plains at the time the final adjudication was made.

(3)Facts Material to Implementation of the Section 32 Grants

[259]Prior to passage of the Act, land at Red River had been taken up both within and outside the Settlement Belt. Some residents held land by way of freehold grant and others by grants of estates less than freehold. In both such instances, the land was within the Settlement Belt and the grants were from the HBC.

[260]In addition, however, many residents held land as squatters, that is, they did not hold grants of land of any kind from the HBC. Those whose land was within the Settlement Belt were squatters with the sanction of the HBC whereas those outside the Settlement Belt where Indian title still existed were squatters without sanction of the HBC, such sanction not being required.

[261]One of the causes of the resistance was the concern, particularly of the French Métis, that the Settlement upon becoming part of Canada would experience immigration, particularly from Ontario, which would result not only in a loss of their religion and culture but, as well, of their land. This concern was evident from the actions of the French Métis in the summer and fall of 1869 and was recognized by Canada as is evident from the writings or statements of representatives of the Crown.

2007 MBQB 293 (*)

[262]For example, Governor General Young issued a proclamation dated December 6, 1869, addressed to the residents of Red River in which he said, in part:115

By Her Majesty’s authority I do therefore assure you, that on the union with Canada all your civil and religious rights and privileges will be respected, your properties secured to you….

[263]As well, on December 7, 1869,116 Howe advised McDougall who was to have become the Lieutenant Governor of the North-West Territories on the intended takeover date of December 1, 1869, that he should assure the residents:

That all their properties, rights and equities of every kind, as enjoyed under the government of the Hudson’s Bay Company, will be continued them.

That in granting titles to land, now occupied by the settlers, the most liberal policy will be pursued.

[264] Macdonald himself in his letter to Smith on January 3, 1870,117 commented upon the first bill of rights which Smith had previously sent to him. He told Smith that some of their claims “are altogether inadmissible” and he proceeded to comment upon “what we are willing to concede”. As well, he told Smith:

…you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.

115Exhibit 1-0346

116Exhibit 1-0347

117Exhibit 1-0372

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[265] And Smith in a confidential report to Howe dated April 12, 1870,118 provided a lengthy report as to his work at Red River pursuant to the commission given him by the Governor General, including his response to the Convention of 40 in respect of the second bill of rights which it had given to him for review and comment. Clause 8 of that list of rights provided for “A Homestead and Pre- emption Law”.

[266]Smith reported to Howe that in respect of the eighth provision, he had told the Convention:

I have been instructed by the Canadian Government — to make known to the people of the Settlement — that all property held by residents in peaceable possession will be secured to them; and that a most Liberal land policy in regard to the future Settlement of the country will be adopted, — every privilege in this respect enjoyed in Ontario or Quebec, being extended to the Territory.

[267]Reassurances continued to be given including in the discussions with the delegates from Red River leading to passage of the Act on May 12, 1870.

[268]And, of course, Cartier wrote on May 23, 1870 to Ritchot and Scott,119

wherein in reference to subsection 32(4), he said:

Gentlemen – With reference to the representations you have submitted respecting the fourth paragraph of Section 32 of the Act to establish and provide for the Government of Manitoba, in which it is stated that “all persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council, I am in a position to give you the assurance, on the part of the members of the Government that so soon as the Government can grant the necessary titles, no payment shall be required from any of the persons mentioned in the paragraph, but that they shall be placed

118Exhibit 1-0446

119Exhibit 1-0499

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upon the same footing as the persons mentioned in the three preceding paragraphs. ….

[269]The evidence shows that during 1871 and 1872, tension continued between the residents, particularly the French Métis, and Canada concerning landholdings. Immigrants were coming into the province and taking up land for settlement whereas the old residents were anxiously awaiting confirmation of their landholdings under section 32.

[270]Order in Council May 26, 1871, provided protection for new settlers who took up land prior to survey. This increased or at least contributed to the anxiety of the longtime residents of the community who became concerned that their claims would be adversely affected as a result.

[271]Order in Council November 11, 1872,120 provided that those entitled to make application under subsection 32(4) of the Act should be dealt with

…on the same terms as the class of settlers described in subsection (3) preceding the above; that is to say, that the occupancy ‘shall if required by the owner, be converted into an estate in freehold by grants from the

Crown.’

Enactment of this Order in Council had become possible by reason of the fact that Indian title over the territory including the lands in question had now been extinguished.

[272]By letter dated November 20, 1872, to Aikins,121 Morris wrote:

I have the honour to call the attention of His Excellency the Governor General in Council to the subject of the lands in Manitoba and the claims

120Exhibit 1-0749

121Exhibit 1-0751

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and rights of the Original Settlers and others relating thereto, as also to the question of the appropriation for the benefit of the families of the Half-Breed residents.

I am aware that until the surveys had sufficiently progressed and until the tracts to be allotted to the Half-Breeds had been determined on, it was impossible to deal with these questions.

The inaction that necessarily resulted from this position of affairs has nevertheless been made a fruitful source of disquiet and is now being used by Agitators on different sides of Local politics and from their different points of view to disturb the minds of the inhabitants of the Province and thereto to commit them to movements which will be injurious to the best interests of Manitoba.

[273]Morris then made suggestions as to how he might appease this agitation. He addressed the Half-Breed Reserves, the issue as to the rights of common and rights of cutting hay and the land referred to in section 32. As regards the latter, he wrote:

I have further to recommend that the Public of this Province be informed that, during next Season, the lands in the occupation of residents of the Province who held under the Hudson’s Bay Company at the time of the transfer to Canada, will be surveyed, in order that the owners thereof may obtain Grants from the Crown therefor and that the land of other persons who at the said period, were in peaceable occupation of tracts of land, in those parts of the Province where Indian title was not extinguished, will also be surveyed, in order that such occupants may claim the right of pre-emption under the 32nd clause of the Manitoba Act.

[274]By letter dated December 6, 1872,122 Aikins responded to Morris’s letter of

November 20 with respect to section 32. He wrote as follows:

With respect to securing occupants under clauses 1, 2 and 3 of section 32 of the Manitoba Act, the intention is to issue Patents to all such parties as soon as possible after the surveys, now near completion, are closed and approved.

I have also further the honour to transmit you the enclosed copy of an Order in Council dated the 11th November ultimo, which secures to

122Exhibit 1-0755

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occupants under clause 4 section 32 of the Act mentioned a free grant of their respective holdings.

I note that the remainder of this document is missing. Hence, it is impossible to know whether Aikins may have said anything more about the subsection 32(4) lands.

[275]At about this time, the issue of “staked claims” arose. Both within the

Settlement Belt, especially in the outer parishes, and outside the Settlement Belt, settlers had staked or demarcated land whether by marking the land with blazes, plowing furrows around it, placing the outline of log buildings on the land or building or placing a small shed or the like upon it.

[276]This practice had existed in the Settlement for some time. In addition, however, some residents led by, or at the suggestion of, Ritchot had done this between passage of the Act on May 12 and its effective date of July 15, 1870.

[277]On May 3, 1873, Canada passed An Act respecting claims to lands in Manitoba for which no Patents have issued (S.C. 1873, c. 6),123

establishing a commission to hear and determine all claims under subsections 32(1) to (4), and a process for the issuing of patents under section 32. However, this Act was never implemented.

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[278]On September 5, 1873, Dennis wrote Alexander Campbell (“Campbell”),

Minister of the Interior,124 proposing procedures to facilitate the granting of patents under section 32 of the Act. He proposed:

1.On an application being received at the Land Office for a patent, should the papers filed in connection therewith as also the report of the Surveyor who surveyed the land, shew that the claimant is in possession of the land claimed, and should there be no opposition to the claim, and no reason to doubt the right of the applicant to receive patent, the papers should be forwarded to Ottawa, recommended accordingly by the local Agent of the Dominion Lands, and a patent should issue in due course.

[279]He also recommended that a list should be posted of all applications for patents received in which there was reason to think the title questionable and that such applications should go before the Commissioners. As stated above, the Act creating the Commission was never implemented and the procedure proposed by Dennis was not followed.

[280]On November 13, 1873, some residents of Ste. Agathe submitted a petition125 setting out their claims under subsection 32(3) to land on both the east and west sides of the Red River based on the fact that they resided on the west side and harvested wood, hay, etc., on the east side and had done so for many years prior to the transfer. In the petition, they stated that the surveyor said he could not draw the lines of that part of the property situated on the east side directly opposite to that part on the west side of the Red River. They asserted that the property on the east side of the river had belonged to them

124Exhibit 1-903

125Exhibit 1-0922

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from the same time and was claimed under the same title as that part of their lands on the west side of the river, that immediately on taking lands on the west side, they took lands on the east side of the same length and width and that the property on the east side was integral to the property overall.

[281]The petition asserted that they held the land with the sanction, permission and authorization of the HBC, that such peaceable possession was recognized under subsection 32(3) of the Act and that they would oppose whoever would deprive them of that part of their property.

[282]A.H. Whitcher, Inspector of Surveys, wrote Dennis on November 15, 1873,126 enclosing the petition. He pointed out that there were no buildings or improvements on the east side of the river. He wrote:

Many of the settlers on the west side of the Red River claim lots on the east side, because they have cut either wood or hay or perhaps both. This it appears to me if anything would only be a hay privilege or right of Common, but if it is accepted as occupation or possession under the Manitoba Act, then there will be little if any land in the settlement belt, or indeed in the Province which cannot be claimed in this way.

[283]On November 19, 1873, Whitcher wrote Dennis127 asking how he was to receive and deal with applications for patents in instances where, in his opinion, parties had no claim for a patent. He asked if he had the power to refuse the application or inform the parties they had no claim under the Act.

126Exhibit 1-0922

127Exhibit 1-0924

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[284]On November 27, 1873, the Deputy Minister of the Interior wrote Whitcher instructing him not to accept the claims from Ste. Agathe to the lands on the east side of the Red River. He wrote:128

… I am to request You to inform the Petitioners that in the absence of evidence to shew occupation or possession of the said lands as contemplated and required by the Manitoba Act it would not appear that the right set up by them to the lands in question is of such a character that it should be necessarily respected in the survey of the lots on the

River….

[285]He instructed that they would have to pursue their claims before the Commission and obtain a favourable pronouncement from the Commission, before their claims would be recognized by the government. But, of course, the Act passed on May 3, 1873, creating such a Commission was never implemented.

[286]As part of the ongoing question, what was required in order to give

recognition to one’s claim outside the Settlement Belt, Morris wrote the Minister of the Interior on March 25, 1874,129 in which he stated:

…I took recent occasion to examine the minutes of the Council of

Assiniboia from the 4th day of May 1832 to the 25th of October 1869 with the view of ascertaining whether there was anything contained therein bearing on the land questions which have arisen here.

In doing so I discovered the enclosed important minute which is the only one dealing with the question of land apart from minutes relating to the Hay and Common rights.

This minute seems to throw light on section 32 of the Manitoba Act, subsection (4) and also would go to shew that in those parts of the Province where there had been no surveys and in the Territory as at the Portage beyond the strict limits of the Province of Assiniboia, occupation of the land by settlers had as in Ontario the effect of giving the occupant a right of preemption.

128Exhibit 1-0926

129Exhibit 1-0965

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[287]As well, Codd wrote similarly on March 28, 1874, as follows:130

I have the honour to enclose an extract from the minutes of the Council of Assiniboia handed to me by His Honour the Lieutenant Governor, showing the conditions upon which persons were allowed to take up land outside of that part of the settlement which had been surveyed.

In my opinion this minute has an important bearing upon the question of the so-called “staked claims” [illegible] those claims to large tracts of land preferred by persons who planted stakes at the corners, or ploughed furrows previous to the transfer, for the principal argument advanced in favour of such claims is that the Act of so staking out had always been recognized by the Government of the settlement of Assiniboia as giving a valid claim to such lands, it would appear, however, from the terms of this minute, that the Council of Assiniboia did not recognize any claims to lands outside of the surveyed portion of the settlement which was not

[based] upon occupation. …

[288]The provision to which both referred in the laws of the Council of Assiniboia provided as follows:

That in difficulties arising between persons who take land outside of the part of the Colony already surveyed, or even that exceeding the limits of the Colony, the magistrate be authorized to take for the principle that 12 chains shall be the limit of preemption rights arising from occupation.

The Council of Assiniboia recognized occupation as a requirement in order to give recognition to one’s claim in land outside the Settlement Belt, or surveyed area.

[289]On May 26, 1874, Canada passed An Act respecting the appropriation of certain Dominion Lands in Manitoba (S.C. 1874 c. 20).131

This Act combined subsections 32(3) and (4) of the Act in providing that persons who satisfactorily established undisturbed occupancy of any land within the Province prior to, and being by themselves or their servants, tenants or agents,

130Exhibit 1-0970

131Exhibit 1-1000

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or those through whom they claim, in actual and peaceable possession thereof on March 8, 1869, would be entitled to obtain letters patent for such land. This Act was amended on April 8, 1875 (S.C. 1875 c. 52)132 to change the date from March 8, 1869 to July 15, 1870.

[290]On March 19, 1875, an Order in Council was issued authorizing the first section 32 patents.

[291]On April 8, 1875, Canada enacted An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875 c. 53.133 This Act established a commission to decide upon adverse or conflicting claims to lands mentioned in subsections 32(3) and (4). However, it empowered the commission to deal with claims between settlers only, but not between a settler and the Crown, which the 1873 Act,134 though never implemented, had done.

[292]On April 30, 1875, Laird wrote Morris135 respecting this legislation and stated:

You will see we have given Commissioners jurisdiction only in conflicting claims between settlers, and cases of heirs – not, as against the Crown. We think that can be settled through the Department according to the other Bill being actual occupation down to July 1, 1870.

The date July 1 was in error and should have been July 15, 1870.

132Exhibit 1-1052

133Exhibit 1-1053

134Exhibit 1-0873

135Exhibit 1-1063

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[293]Part of the evidence to be placed before a conflicting claims commissioner was the report of the surveyor. In a memorandum dated March 4, 1876,136

Dennis provided Laird with particulars as to the protocol to be followed pertaining to applications for patent for lands under section 32 of the Act. He wrote, in part:

2.A transcript of the report of the Surveyor employed by this Department to survey the land expressly with a view to granting a patent for the same. In making this survey, the surveyor was in all cases specially instructed to ascertain and report each lot occupied, giving its precise position and boundaries, the name of the person in possession, whether as owner or tenant, whether there was any adverse claim thereto, and if so, the facts connected with such adverse claim.

These surveys were entered upon in the spring of 1871, and were completed in 1873, with the exception of the Parish of Ste. Agathe, which was completed in the following year (1874).

The undersigned would remark that the rights of parties to any certain lands claimed as being occupied at time of the Transfer, were so well known and understood among the people of the parish at the time of the survey being made, that the Surveyors’ return of claimants and occupants in itself is very reliable evidence in the case of a claim made for patent to a given lot, and where the evidence accompanying a specific application for such lot is borne out by such return and no counter claim has been filed (although the printed Notice referred to above is and has been since the date therein a standing Public Notice) the case is assumed to be one in which a prima facie right to a patent is made out, and the papers are in due course submitted for the final decision, as to title, of the Department of Justice.

[294]Order in Council April 20, 1876,137 stated that Laird reported the existence of claims to land which, he said, do not come clearly within those provided for by the law as it stood. There were two classes of such land claims. The second was described in part as:

136Exhibit 1-1166

137Exhibit 1-1177

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Lands alleged to have been taken up, but which were not surveyed as above or occupied, but merely marked out by the claimants, by stakes, prior to the 15th July 1870.

[295]Laird submitted that this second class was not entitled to consideration.

[296]On September 8, 1876, Whitcher wrote Dennis.138 He said that the question of possession in connection with applications for patents under the Act

was still troubling him. He wrote:

The Act 38 Vic. Chap 52 requires “undisturbed occupancy and actual peaceable possession etc” and it is difficult to determine where the line should be drawn, or to know exactly what acts of possession would be recognized.”

[297]He continued:

Mr. Codd and I were talking over these matters a few days ago, and concluded that it would be advisable to send down some of the doubtful applications in order that you might look over the papers yourself and if necessary submit them to the Minister of Justice, for opinion, returning them to us with a memo attached to each application, shewing the opinion in each case, definitely as to whether they will or will not pass. If you will be good enough to do this and have the papers returned as soon as possible, we shall be able to take action on a large number of claims which have been on file in this office for a considerable time.

You will notice that in some cases the applicants claim lands on both sides of the River. This occurs in many places in Ste. Agathe. Some of the applicants have improvements on one side of the river, and claim a lot on the other side as having been taken up in connection with the prairie lot for wood….

[298]As well, he wrote:

I hope that you will not disapprove of this unofficial action. It was thought better to adopt this course, than to send down claims recommended, a number of which might be returned, on the other hand some might be kept back which could pass. In connection with the opinions on the claims now submitted, it might be stated whether those applications for lots 8 to 12 in St. Norbert, sent down sometime ago, will pass. If I remember rightly, these were intended as test cases when sent down.

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And, he reported that none of the lots referred to in the September 8, 1876 letter were within the limits of the HBC survey.

[299]On September 23, 1876, Dennis replied to Whitcher139 stating he had discussed several of the applications with the Deputy Minister of Justice. Dennis advised acceptance of some claims but rejection of those with neither improvements nor surveys prior to transfer.

[300]Whitcher wrote October 31, 1876,140 reporting upon surveys in Manitoba, Keewatin and the Northwest Territory, and of the business of the Surveys Office, Dominion Lands, for the year ending at that date. In part, he wrote:

…Up to the present time, 2,604 applications for Letters Patent, under the Manitoba Act have been received. About one-fourth of these come under the head of what are known as “staked claims”; 914 have been recommended for patent; of the remainder, some will have to be referred to the Commission under the Act 38 Vic., Chap. 53. A list of 147 of these claims has been prepared in accordance with the provisions of said Act. In a large number of cases, the evidence of title is not considered sufficient to justify their being sent forward for patent. The applicants have been notified of this and requested to furnish the necessary evidence, and in some parishes, many of them have done so, while, in others, very little attention has been paid to the letters. It is hoped, however, as the people have more time during the winter to attend to these matters, that, in the course of a few months, much of this supplementary evidence will be received, and that with this, and under late regulations, a great many cases may be disposed of.

It is estimated that there are still at least 400 claims for which applications for Letters Patent may be expected.

[301] On November 2, 1876, Dennis wrote Codd141 and asked for a report from Codd which would be “considered confidential”. The letter reported upon a

139Exhibit 1-1204

140Exhibit 1-1214

141Exhibit 1-1216

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meeting between Taché and the acting Minister of the Interior concerning staked claims to land in Manitoba described under class 2 in Order in Council April 20, 1876. Dennis told Codd that during the meeting the Minister “repudiated the principle that the mere staking out (without settlement) of a portion of the unoccupied Dominion land gave or could give any right, even of preemption to such land.” However, the Minister felt there were certain views respecting the claims in question urged by Taché which appeared to be not “not altogether without some force”.

[302]Dennis outlined the arguments advanced by Taché, three of which were:

(1)that such lands “were not intended for speculation but were taken up with the view of the several claimants making homes thereon” and in fact “many of the parties had actually settled on or otherwise improved their claims”;

(2)that said “lands, at the time of being staked out, had not become property of the Dominion; that the manner in which they were taken up was in accordance with the usage of the Colony at the time and previously”; accordingly, “the claimants had acquired rights in respect thereof” and it “would be an act of injustice on the part of the Government to refuse to recognize” them;

(3)that a number of the claimants to such lands “belong to a class of people who, not being natives, and having settled in the Red River

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colony subsequent to 1835, were not among those who are entitled by law to either land or scrip”.

[303]Dennis asked Codd to report for the information of the Minister:

(1)“Approximately, the number of these claims in the several parishes, mentioning the proportion in each parish situated in the Settlement Belt;

(2)Whether, considering all the facts connected with these claims it might be considered a reasonable concession on the part of the government to give the claimants till, say the 1st July next to settle on the respective lots; in the meantime such lands to be withdrawn in legal subdivisions from the Half-Breed allotment; those of the lands which be settled on by that time to be classed with those alluded to in my instructions of 19th May last, those not bona fide settled on by that time to be treated as vacant Dominion Lands;

(3)Whether assuming such course were taken, the allotment of the Half-Breed Lands in which such claims may be situate would be embarrassed or delayed, and if either, to what extent; also, whether such course would cause embarrassment in any other way, and, if so, in what way, in dealing with the lands or claims for patent in the Province;

(4)Whether you have any reason to believe that similar claims are likely to be preferred to land on the Saskatchewan, or elsewhere in the Territories, that is to say, on the ground of having been staked out by the claimants previous to the

15 July 1870; If so, mention the situation and probable extent of land covered by such prospective claims together with any other particulars known to you connected therewith.

[304]On April 16, 1877, Z.A. Lash, Deputy Minister of Justice, wrote Dennis regarding a number of section 32 claims.142 He said the evidence submitted on one was unsatisfactory. He wrote:

142Exhibit 1-1276

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…Some of the affidavits state that the lot has been actually and peaceably occupied etc. but from the others I gather that the occupation was for the purposes of “cutting wood and hay”.

He went on to say:

Before expressing a [illegible] opinion as to the claimants right to a patent, I think evidence should be furnished as to the exact nature of the alleged occupation shewing with particularity how the land was issued and dealt with etc. etc. ….

He returned the file and awaited further referral with the new evidence.

[305]As well in that letter he reported that the evidence in respect of another claim was not sufficient. He wrote:

…The claimant who describes himself as of the City of Hamilton, Ontario, swears on the 27 October 1874 that the lot has been occupied for a period of over eight years and he produces a deed from Robert Hourie and wife to Alexander McPherson and a deed from Alexander McPherson to the claimant. It does not appear that the possession referred to was of the nature required by the statute, nor that Alexander Hourie was the one in possession or had any right to convey.

[306]On June 5, 1877, Lash provided his opinion143 respecting a reference from the Department of the Interior, Dominion Lands Branch, as to the right of certain claimants of land to a patent. Those claimants were people in Ste. Agathe who sought patent to land on the opposite side of the river from the land where they lived where they cut wood and hay. The opinion he expressed was as follows:

I am of the opinion that such persons are not entitled to a patent of the land, as they cannot in my opinion establish “undisturbed occupancy thereof” or that they were by themselves or their servants etc. “in actual peaceable possession thereof” within the meaning of the Act.

[307]He then concluded that the Minister might consider the propriety of commuting the alleged right of cutting hay and wood by an issue of scrip or

143Exhibit 1-1286

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grant of land in accordance with the principles adopted in similar cases in other parts of the province.

[308] On June 6, 1877, Dennis wrote a memo to the Minister of the Interior144 recommending in light of Lash’s opinion that the claims in question and others of a like character be declined. As well, Dennis said there would be no need for a special ruling or regulation respecting an issue of scrip to claimants of this class in commutation of the right of common or of cutting hay as that was already provided for in Order in Council April 17, 1874, and that the applicants referred to need only be notified that their claim to a patent for the hay and wood lots would not be recognized but that they would receive an issue of scrip referred to and commutation generally of the right of common and of cutting hay.

[309]On October 22, 1877, Codd sent a telegram to Dennis145 stating:

Nearly half the staked claims have small improvements recently made, such as shanty or small field. Am proceeding with allotment of French parishes, reserving from 40 to 160 acres, covering such improvements according to their extent and value. Is this course approved?

[310]Codd was indicating an intention to reserve from the townships to be allocated under section 31 those staked claims with small improvements.

[311]But on October 24, 1877, Dennis replied to Codd146 as follows:

The Minister is of opinion that without some really valuable improvements have been made upon the lands severally claimed which latter it is assumed come under Class No. 2 described in the Order in Council of the

144Exhibit 1-1287

145Exhibit 1-1311

146Exhibit 1-1312

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20th Apr 1876, the parties claiming are not entitled to favourable consideration.

Where valuable improvements, however, have been made, you are at liberty to carry out the proposition set forth in your telegram, but the land withdrawn in any individual case, without the area cultivated should actually exceed that quantity, is not to be of greater extent than eighty acres.

In all cases of this nature, the claimant must pay for the land in cash or scrip at the Government price of One dollar per acre, and, as regards the withdrawal of lands so claimed, and improvement thereon, the Minister directs that you be governed by the following principle.

No land to be withdrawn where less improvements have been effected than five acres fenced and a house thereon, or ten acres fenced without a house. Improvements to such an extent to entitle the claimant to the purchase of the legal subdivision of forty acres embracing the same.

Improvements in extent greater than the above to entitle the claimant to purchase eighty acres but in no case, as already stated, without the actual area cultivated shall exceed the same, is the claimant to be allowed to purchase more than eighty acres.

[312] On December 20, 1877, Codd wrote a memorandum147 on his implementation of the instructions set out in Dennis’s letter of October 24, 1877, in the area of the Rat River. He wrote:

Such being the instructions I have now to show the manner in which they affect the claims which have been preferred to lands upon the Rat River excluding those lands which have been regularly entered under the provisions of the Dominion Lands Act — those which were surveyed by Mr. Goulet prior to a date six months antecedent to the date of the transfer — and those allowed under the Manitoba Act.

The remaining claims are 93 in number of which 4 have more than 10 acres under cultivation and being also actually resident are allowed to purchase 80 acres including their improvements.

Five are allowed to purchase 40 acres having 5 or more acres under cultivation and a house.

Forty-two are disallowed having made no improvements whatsoever.

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Eighteen are disallowed having only ploughed small patches of land in all cases less than five acres.

Twenty-four are disallowed not having a house and 5 acres under cultivation. Of these latter 10 have houses and are actually resident in them but have little and in some cases no cultivation. The remaining 14 have the frames of houses in various stages of completion and generally small pieces of land ploughed recently.

I would add that these 10 who are actually resident on the land claimed but whose claims are disallowed under the instructions I have received all have gone into occupation very recently and most own and have been until quite lately in occupation of lot upon the Red River and that it is my belief that the very recent occupation of these lands is evidence of the speculative character of the claims preferred.

[313]In the spring of 1878, debate occurred in the Senate about staked claims and the process for resolving conflicting claims. Senators Girard and Sutherland148 urged that it was unlawful to require actual occupancy when subsection 32(4) required only peaceable possession. They referred to the usages of the country prior to transfer including the fact that surveyors were not used in the absence of a conflict. As well, they proposed that the conflicting claims statute should be amended to include claims against the Crown.149 But on April 23, 1878, an amendment which had been adopted by the Senate was refused by the House of Commons.150

[314]On May 5, 1879, Macdonald stated in the House of Commons151 that it

was the intention of his government to recognize “such staked claims as have been followed by possession and improvement”.

148Exhibit 1-1341

149Exhibit 1-1346

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151Exhibit 1-1399

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[315]On February 14, 1880, the Legislative Assembly of Manitoba sent an address to the Governor General.152 Included in that document were complaints concerning the status of staked claims. The address noted:

…a certain number of people had staked out and pre-empted claims to unoccupied lands in certain parts of this Province, and were in peaceable possession of those certain tracts of land at the time of the said actual Transfer on the 15th day of July, 1870.

That nearly all of the said staked claims are now occupied and improved; and although a period of over seven years has elapsed since application has been made to the Government by the several claimants for the issue of the Patents to said lands, which is their right under the terms of the said Manitoba Act, no attention has as yet been paid to such applications.

The Legislative Assembly urged that no further delay should occur.

[316] On March 8, 1880, Senator Royal wrote a lengthy letter to Macdonald153 concerning the staked claims. He challenged the government’s interpretation of the words “peaceable possession” and asserted that the government, contrary to repeated assurances at the time of the resistance, was not following the most liberal policy respecting land distribution in the new province.

[317]Order in Council April 12, 1880,154 was passed. It addressed the matters raised by the Legislative Assembly in its February 14, 1880 address. Referring to

that portion of the address that related to “staked claims”, it provided:

That these claims have formed the subject of repeated applications for patents, but on being submitted to the Department of Justice for opinion as to the title, the latter has in every case been reported as insufficient, that is to say, the mere fact of staking out the land, without entering into bona fide possession and occupation being found in such bona fide possession and occupation on the 15th July, 1870, did not bring that class

152Exhibit 1-1441

153Exhibit 1-1442

154Exhibit 1-1447

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of claims within the operation of the Manitoba Act, and therefore patents were refused.

[318]On April 29, 1880, Canada passed An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three, 43 Vic. c. 7,155 providing that all claims by

“occupancy” under subsections 32(3) and (4) would be barred after May 1, 1882.

[319]The complaints continued including a letter dated January 15, 1881, from Ritchot to Macdonald156 in which he reviewed the history of the staked claims and the fact that this had been fully explained to Macdonald and Cartier by the Red River delegates in 1870 as a result of which subsection (4) of section 32 was enacted in order to protect those interests. Ritchot discussed the issue and

meaning of “peaceable possession” and reiterated that he had told the Ministers in 1870 that these lots were not inhabited, but only marked in accordance with the usages of the country. Ultimately, Ritchot wrote:

Supposing even that the words of the Manitoba Act could be interpreted in different ways, it is nevertheless true that lands possessed as aforesaid belong to those who claim them as this was the understanding by the agreements of 1870.

[320] On February 24, 1881, Macdonald wrote Justice Miller of the Manitoba Queen’s Bench concerning staked claims and the government’s intention to appoint him and Dubuc as commissioners to deal with unresolved claims.157 In the letter he wrote:

155Exhibit 1-1452

156Exhibit 1-1485

157Exhibit 1-1488

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In my opinion all those claims that deserve to be settled have already been adjusted and disposed of. The late Government pooh-poohed, as being fraudulent, those that still remain.

Archbishop Taché is now kicking up such a row about the matter that we have resolved to issue a commission to you and Dubuc to hear each applicant and decide each case on its own merits. The commission will say that you are to do what is legal and equitable, the words “legal” and “equitable” being used in their legal sense. That is to say the parties must have a claim which could be enforced in a court of law or equity. I write you confidentially as your co-commissioner will be very apt to lean towards the Archbishop. …

I may say that Mackenzie’s Government passed an order in council stating that these claims had no foundation whatsoever.

[321]Order in Council February 25, 1881,158 was passed. It pertained to claims described in paragraph 2 of Order in Council April 20, 1876, which the Order in Council February 25, 1881 stated embraced some 175 cases involving an area of approximately 45,000 acres and which were admitted to have been staked out by the claimants in June or the beginning of July 1870.

[322]The Order in Council February 25, 1881, classified those several claims into three categories. The second category was those of the staked claims, which remained exactly as they were when taken up and were being claimed by

the persons who staked them out. Those lands were to be “offered to the claimants at the price of Railway Lands in the Belt in which they are found to be situated, but should the claimant in any case prefer to do so, he may accept a homestead entry for 160 acres of the lot and acquire the balance at the Railway Lands prices before mentioned.”

158Exhibit 1-1489

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[323]As well, Dubuc and Miller were appointed commissioners to investigate and receive evidence respecting the third category of claims, namely, those claims which after being staked out were sold to others who held them for speculative purposes and had done nothing in the way of cultivation or improvement of such lands.

[324]The commissioners were to report and recommend in each case such a settlement as in their opinion would be legal and equitable.

[325]By Order in Council May 23, 1882,159 the terms of Order in Council February 25, 1881, were made applicable to staked claims throughout the province.

[326]On May 4, 1883, George W. Burbidge, Deputy Minister of Justice, wrote Alexander M. Burgess, Secretary, Department of the Interior,160 stating that it

was difficult to define the exact meaning of the words “occupancy” and “peaceable possession” but that if lots were:

…fenced in, surveyed or marked out by bounds and the parties were using their respective lots as wood lots, and exercising acts of ownership each over the whole of his lot and that no other persons were cutting wood or otherwise using the lots and that there is no adverse claim, in my opinion the parties would be entitled to the patents.

[327]Order in Council June 6, 1883,161 was passed, referring outstanding matters to the Dominion Lands Board.

159Exhibit 1-1558

160Exhibit 1-1581

161Exhibit 1-1585

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[328]The Board established rules for dealing with staked claims under three categories:

(a)First class staked claims: Lands staked out prior to the transfer (July 15, 1870), and in actual occupation by the claimants at the date of Order in Council February 25, 1881: 160 acres free and any excess over 160 acres at $1.00 per acre;

(b)Second class staked claims: Lands staked out prior to the transfer, but not occupied at the date of Order in Council February 25, 1881: 160 acres as a homestead, and the excess over 160 acres at the rate of $2.50 per acre, or the whole area at $2.50 per acre, which was the regulation price for this class of land at the time these claims were dealt with;

(c)Third class staked claims: Lands staked out prior to the transfer but unoccupied and unimproved, the person claiming through the person who had staked out the land: 160 acres as a homestead and the excess area, in most cases, at $2.50 per acre, or the whole area, as in the case of second class staked claims, at the rate of $2.50 per acre.

[329]Under these rules, only those who had first class staked claims, that is, who combined staking before the transfer with occupation by the claimants in 1881, would receive a free grant of 160 acres.

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[330]On April 19, 1884, Canada passed the Manitoba Land Claims Act, 1884162 extending the time for bringing claims from May 1, 1882, to May 1, 1886.

[331]In 1888, the Land Board filed its report for 1887.163 As regards the claims under the Act, it reported:

The claims to land under the Manitoba Act, … have been nearly all finally closed. There are still a few cases pending, in regard to which some evidence as to ownership or heirship is wanting, but the furnishing of this evidence is purely a matter of time. Practically this branch of the business of the Department is closed.

[332] On March 28, 1890, Burgess wrote Dewdney, Minister of the Interior,164 proposing that a bill be passed to extend by a period of two years the time within which section 32 claims might be brought.

[333]On September 9, 1890, Burgess wrote the Commissioner of Dominion Land165 and said that as the only class of cases still unsettled were “claims by virtue of occupation on the 15th July, 1870, irrespective of the authority of the

Hudson’s Bay Company”, “the Government is prepared to deal with all claims which may not already have been disposed of as a matter of grace”. The matter of the subsection 32(4) claims was thus left open as a matter of grace.

[334] Aside from the land claims arising from subsections 32(3) and (4) of the Act, there was also the issue of the rights of cutting hay and the rights of

162Exhibit 1-1608

163Exhibit 1-1818

164Exhibit 1-1886

165Exhibit 1-1896

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common enjoyed by existing settlers as at July 15, 1870, which subsection 32(5) addressed. Collectively, these have been referred to variously as the “rights of Common”, the “Hay Privilege” or the “Hay Rights”.

[335]In his report,166 Dr. Flanagan described the “Hay Privilege” as regulated

by the Council of Assiniboia as follows:

…there was generally a double aspect to the “hay privilege”. First, occupants of river lots had the exclusive privilege of cutting hay for two to three weeks in late July and early August on the “outer two miles” immediately behind their river lots. Second, there was a general privilege of pasturing livestock and cutting hay behind the four-mile line at all times and between the two-mile line and the four-mile line at times when the exclusive hay privilege was not in effect.

[336]In his letter of January 3, 1871,167 St. John advised Archibald that:

It has been customary for holders of lands along the rivers to enjoy a semi-proprietary right in the Prairie land immediately in rear of their holdings to the extent of two additional miles. Their right has been merely that of cutting Hay within this limit, but as this right prevents in most cases the use of the land for other purposes it amounts practically to an entire proprietorship so far as other people are concerned.

[337]He continued, however:

An unconditional grant of this subsidiary two miles would sometimes however be likely to interfere with the rights of other settlers whose properties include portions of the land referred to which are not used for Hay reserves.

[338]On February 8, 1872, the Manitoba Legislature in an address to the Governor General168 asserted fulfillment of the rights of cutting hay and common. The address, in part, stated:

We would respectfully state that the custom of the country has always given to the possessor of a lot the exclusive right of cutting hay, and of

166Exhibit 18, page 7

167Exhibit 1-0557

168Exhibit 1-0687

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pasturage and common, over an extent of two miles in rear of his lot. The Legislature of Manitoba, in conformity with [s. 32(5) of the Manitoba Act] respectfully confirm the right and claim fulfillment as a right acquired by possession, and that the usage of the country from time immemorial

…an usage sanctioned by positive and known law by the Act referred to

…certain tracts have always been recognized as Hay Commons, the

Legislature of Manitoba respectfully claim the complete fulfillment of this right.

[339]James McKeagney (“McKeagney”) and Louis Bétournay (“Bétournay”),

who had been appointed by the Lieutenant Governor to inquire and report as to the rights of common and rights of cutting hay enjoyed by settlers in the Province of Manitoba, wrote the Lieutenant Governor on March 6, 1873.169 In that letter, they reported having visited a number of the parishes in the province and having conferred with the leading people therein concerning the several subjects upon which they were to inquire, and reported as follows:

1.They find that there exist in the Province certain Rights both of Common and of Cutting Hay which have been held and enjoyed by settlers for many years.

These rights, although more as universally claimed throughout Manitoba, vary very much as to their character and as to the extent and manner in which they are held and enjoyed by individuals.

2.The undersigned recommend that a Board or Commission of competent persons should be appointed whose duty it should be to investigate each individual claim which may be made under the Act quieted for the commutation either of the Right of Common or Right of Cutting Hay, and award such compensation to be in full of such claim as may be fair and equitable in the premises.

[340]Ritchot, in his 1873 Notes on Manitoba,170 wrote respecting the rights of hay and common as follows:

Practice, the customs and laws of Assiniboia ensured each settler possessing these lots, an exclusive property right to all the hay found on

169Exhibit 1-0841

170Exhibit 1-0834

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the two miles behind his first two miles, and a further right in common to the wood and the pasturage on these same two miles. The settlers of Manitoba claim these two miles that are theirs. They have enjoyed those rights since the establishment of the colony; they cultivate them for hay,… These lots are truly their property and not the property of the Government of the Dominion, who only owns waste or ungranted land (29th clause of the Manitoba Act).

Given the reference to the 29th clause of the Act rather than the 30th clause, one questions when exactly it was that Ritchot wrote this note given that as the legislation was proceeding through Parliament as a Bill, the clause referred to was indeed clause 29 though ultimately at time of passage on May 12, 1870, and thereafter it was clause 30 of the Act.

[341]In a memorandum dated September 2, 1873, appended to Order in Council September 6, 1873,171 Campbell recommended (and the Order in Council adopted the recommendation) that Bain and Dubuc be appointed to the board or commission created to investigate the individual claims of persons advanced under subsection 32(5) of the Act. As well, he recommended:

4th. That persons claiming the Right of cutting Hay on the outer 2 miles in those localities in the Province where the privilege was recognized by the old laws of Assiniboia, may be awarded by the Board or Commission compensation in land commencing at the rear of their respective farms and extending outwards, but such compensation in no case to extend beyond the outer 2 miles, or to be wider in extent than the front farm of the claimant, and the lines thereof in all cases to be conformed to the Township Surveys, or, they may at their option, receive scrip to cover an equal quantity of land at the rate of one dollar per acre, such scrip to be redeemable in any unoccupied Dominion land.

5th. That in all other cases where the Right of cutting Hay is established, and in all cases where a claim is established to a Right of Common, within the meaning of the said Clause, the same shall be commuted by an issue of scrip to the claimant as above mentioned.

171Exhibit 1-0904

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6th. That with the view to carrying out these regulations the outer 2 miles in those localities, where the same were recognized by the old Assiniboia Laws as the Hay Privilege, shall be withdrawn from the lands set apart for the Half Breeds, and any deficiency in the latter, caused thereby, shall be made up by taking the corresponding quantity from unclaimed Dominion lands upon the rear of the allotment.

[342]And in December 1873, Dennis told the Minister of Justice that the Council of Assiniboia only recognized the right of cutting hay in certain parishes.172 He reported:

Some of the persons so claiming, lie in those parishes where the Hay privilege of the outer two miles was recognized under the Assiniboia law, but which land immediately in the rear of the farms of those applicants was not good hay land and they therefore were obliged to seek their hay in the marshy meadows out on the plains, it may have been from four to twelve miles distant.

Others, again, who claimed to be compensated as being now deprived of this right of cutting Hay on the open Plains, are settlers living in parts of the Province other than the Parishes where the Hay right in rear was acknowledged by the Assiniboia law.

[343] I now turn to deal with the issues raised by the parties in this litigation.

STANDING

[344]The plaintiffs in this action are 17 individuals and the MMF, a corporation.

[345]The individual plaintiffs (as named in the amended statement of claim) are members of the Manitoba Métis community and descendants of persons (referred to in the Act as “half-breeds”) entitled to land and other rights

pursuant to sections 31 and 32 of the Act. Canada and Manitoba accept these facts in this action.

172Exhibit 1-0929

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[346]The MMF was incorporated in 1967. Its president, David Chartrand, testified before me. He described the makeup and structure of the MMF. He estimated that there were approximately 100,000 to 130,000 Métis in Manitoba and approximately 33,000 voting members of the MMF. Its role, he said, was to

“politically agitate our collective voice”.

[347]He admitted however that its membership doubtless did not include descendants of all persons entitled to rights under sections 31 and 32 of the Act

and did include persons who were not descendants of such original claimants. There was no precise evidence introduced of the kind called for by the Supreme Court of Canada in R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43, to establish the identification of its members as having ancestoral connection to the Métis of the area prior to and at July 15, 1870, so as to be entitled to whatever aboriginal rights, in this case the right to title, which those persons are alleged to have enjoyed and which such members through the MMF now seek to enforce.

[348]Mr. Chartrand testified that the MMF delivers many services to the Métis people of Manitoba and is recognized both by Canada and by Manitoba as an organization which represents in many respects the Métis people of Manitoba. He produced correspondence received by him in his capacity as president of MMF from senior politicians in Manitoba, including the premier, and testified that he has had meetings and negotiations with senior politicians, both federal and provincial, in respect of Métis interests.

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[349]The plaintiffs filed copies of The Child and Family Services Authorities Act, C.C.S.M. c. C90,173 The Housing and Renewal Corporation Act, C.C.S.M. c. H160,174 and The Louis Riel Institute Act, S.M. 1995, c. L230.175 In all three Acts, the MMF is recognized as an entity with some authority in respect of certain matters which are of interest to Métis people in Manitoba.

[350]As well, Mr. Chartrand made reference in his evidence to various

Memoranda of Understanding (“MOU”). One176 is an MOU between the MMF, Canada and Manitoba, the described objectives of which are to establish a forum to work cooperatively on issues identified from time to time by the Métis people in Manitoba, to coordinate the development and implementation of policies that affect them, and the like. I note, however, that para. 10 of that document provides as follows:

10.1Nothing in this MOU abrogates, derogates from, or creates any Aboriginal, treaty or other rights and freedoms that may pertain to the Metis people in Manitoba.

10.2This MOU is not intended to create a legally binding agreement but is intended to reflect the mutual understanding of the Parties.

10.3This MOU is not intended to affect the interpretation of any other agreement between the Parties.

[351]Other similar documents were filed as exhibits.177

173Exhibit 9

174Exhibit 10

175Exhibit 11

176Exhibit 1-2037

177Exhibits 1-2040, 1-2041, 1-2049, 1-2050 and 1-2051

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[352]Two such exhibits178 contain the provision that “the parties acknowledge that this MOU is not a legally binding instrument”, but rather an expression of

common resolve concerning certain matters.

[353]Another179 contained the following provision:

7.This Memorandum of Understanding is made by the Parties as an expression of their common understanding. This Memorandum of Understanding does not create any legally binding rights between the Parties. Nothing in this Memorandum of Understanding affects any Aboriginal or treaty or constitutional rights, or any claims to lands or resources, or any other legal entitlements of the Manitoba Metis Federation Inc. and/or its members, or of any trust or obligation of the Crown.

[354]Two others contained the following provisions:

9.This Memorandum of Understanding is agreed not to be legally binding and is not intended to create nor to be construed as creating, any rights or obligations between the MMF and Hydro.180

10.1Nothing in this MOU creates binding legal obligations on any Party nor will the MOU be used in the interpretation of any other agreement.181

[355]I am satisfied on the evidence before me that MMF does fill a role as a representative of Métis in Manitoba and is so recognized by Canada and Manitoba. In saying that, however, it is clear to me that such representative status as enjoyed by MMF is in the nature of dealing with governments and crown agencies in a political sense. While that may have some relevance to and bearing upon the question of standing in this litigation, it is not, in itself, synonymous with or equal to legal standing.

178Exhibits 1-2040 and 1-2041

179Exhibit 1-2049

180Exhibit 1-2050

181Exhibit 1-2051

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[356]Canada and Manitoba concede that the individual plaintiffs have standing. Both, however, argue that MMF does not.

[357]The plaintiffs submit that the issue of standing has been determined and that Canada and Manitoba are issue estopped from challenging standing. In any event, the plaintiffs assert that MMF has standing to bring this action.

[358]The plaintiffs argue that issue estoppel arises from the decision of Barkman J. of February 18, 1987, followed by and including the subsequent appeals, wherein he dismissed an interlocutory motion of Canada in this action. Canada and Manitoba say that in the circumstances, Barkman J.’s decision and

the appeals which followed did not finally determine the issue of standing and that it is open for reconsideration by me having had the benefit of the evidence placed before the court at trial.

[359]In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L. (E.)), Lord Guest, at p. 935, defined the requirements of issue estoppel as:

…(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

[360]The Supreme Court of Canada adopted Lord Guest’s formula in Angle v. Minister of National Revenue (1974), 47 D.L.R. (3rd) 544 (per Dickson J.) at p. 555.

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[361]More recently, in Danyluk v. Ainsworth Technologies Inc., [2001]

2 S.C.R. 460, 2001 SCC 44, Binnie J., for the court, wrote at p. 481:

The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party … has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: …

[362]Canada argues that the first two elements of Lord Guest’s formula have

not been met. That is, it asserts that the question now before me is not the same question decided by Barkman J. and that his decision was not final.

[363]I turn then to consider the judgment of Barkman J. and the appeals which followed.

[364]Canada moved before Barkman J. for an order to strike out the plaintiffs’

statement of claim and to dismiss their action on three grounds, namely, that it disclosed no reasonable cause of action against Canada, that the plaintiffs were not proper parties having no standing to claim the relief sought, and that the statement of claim failed to disclose a justiciable issue. At the time of the motion, the only relief sought in the statement of claim was a declaration that certain enactments listed in the statement of claim were ultra vires the Parliament of Canada and the Legislature of Manitoba.

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[365]Barkman J. rendered his judgment in Dumont v. Canada (Attorney General) on February 18, 1987, dismissing Canada’s motion. His judgment is

reported at (1987), 48 Man. R. (2d) 4 (Q.B.), [1987] M.J. No. 108 (Q.B.) (QL).

[366]While there were three grounds advanced in support of the relief sought, in my view, the motion was argued and considered by Barkman J. as though it were really a motion to strike on the basis that the statement of claim disclosed no reasonable cause of action. I say that because there was no evidence placed before Barkman J. on the motion and he accepted the facts pleaded in the statement of claim as proved. This is required when considering a motion to strike a statement of claim as disclosing no reasonable cause of action, but it is not the law or practice when determining the issue of standing.

[367]At p. 8 of his judgment, Barkman J. made appropriate reference to principles fundamental to deciding a motion to strike a statement of claim as disclosing no cause of action, as follows:

[14]It is agreed by counsel for the Attorney General of Canada that on an application to strike a statement of claim, the facts pleaded must be taken as proved.

[15]The court, on a motion to strike, shall only grant the application in cases that are plain and obvious. …

[368]Barkman J. dealt with what he described as the ground of standing at p. 10 of his reasons, as follows:

[27]The first ground of the applicants’ submission, that the plaintiffs

are not entitled to standing in a public interest suit, is, in my opinion, not substantiated.

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He then went on to provide his rationale for that conclusion. Dealing with the corporate plaintiffs, he wrote:

[29]The corporate plaintiffs allege they represent thousands of descendants of the “half-breeds”. It is clear from these allegations that the legislation in question applies to a specific group or class.

Barkman J. then made reference to the then leading cases on the issue of public interest standing and adopted certain comments of Martland J. in Minister of Justice v. Borowski, [1981] 2 S.C.R. 575, [1981] S.C.J. No. 103 (QL).

[369]At pp. 10-11 of his judgment, he wrote:

[32]The appellant (defendant) argues that the Borowski case has been restricted by the Dismantle case [Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441] and that there is a requirement of evidence of a current violation of the plaintiffs’ rights. If the allegations in the statement of claim are accepted as proven, then I am satisfied that there is current violation of the plaintiffs’ rights relating to the “Metis Reserve” which, it is alleged, has not been established.

[33]The court, on an application to strike the statement of claim is in no position to deal with the merits of the plaintiffs’ claims which must be dealt with by the court after hearing all of the evidence of the parties.

[370]Aside from the fact that there was no evidence before him, it also appears from his judgment that no cases were referred to him dealing with the question whether aboriginal rights may be held by a corporation, nor was there any apparent consideration by the court as to whether there should be any differentiation between the individual plaintiffs and the corporate plaintiffs or either of them (in addition to the MMF, there was then another corporate plaintiff, namely, Native Council of Canada Inc.) on the question of standing by reason thereof, or otherwise.

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[371]I conclude from his reasons for decision and the manner in which he dealt with the motion before him that he viewed the motion as one of deciding whether the statement of claim should be struck out as disclosing no cause of

action and he did not consider the question of the plaintiffs’ standing as a discrete issue in the case.

[372] The order entered April 8, 1987, which resulted from Barkman J.’s decision, and which was approved as to form by counsel for all parties, described the application as one “for an Order striking out the Statement of Claim and dismissing the action….” Consistent with Barkman J.’s reason for judgment that

the question of standing was not advanced as a ground for the substantive relief sought, the order made no mention of standing or of its having been decided as a discrete issue. While this is not conclusive of the question of issue estoppel, it is in my view some indication of Barkman J.’s mindset or intention in addressing standing on the application which he heard.

[373]Barkman J.’s decision was appealed. The Court of Appeal’s decision is

reported at [1988] 5 W.W.R. 193, a judgment delivered June 17, 1988. The appeal was allowed with O’Sullivan J.A. dissenting. The majority did not deal at all with the issue of standing. Twaddle J.A., writing for the majority, dealt only with the issue of justiciability.

[374] O’Sullivan J.A., however, did deal with the issue of standing in his dissent.

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[375] The plaintiffs, in their argument, make reference to certain statements of O’Sullivan J.A. on the issue of standing. They point out that at p. 197 of the decision, he wrote:

In my opinion, it is impossible in our jurisprudence to have rights without a remedy and the rights of the Métis people must be capable of being asserted by somebody. If not by the present plaintiffs, then by whom?

[376]And, at p. 201, O’Sullivan J.A. wrote:

In my opinion, the plaintiffs are suitable persons to assert the claims of the half-breed people and their suit should be allowed to go forward… . I would dismiss the application to strike out the statement of claim.

Again, there was no apparent consideration of any differentiation between the individual plaintiffs and the corporate plaintiffs, or either of them, on the standing issue.

[377] But O’Sullivan J.A. also wrote, at pp. 197-98:

It must be noted that the existence of the Métis people is asserted in the Constitution as of the present, not simply as of the past. Each individual plaintiff can, I think, prove indisputably his membership in the Métis nation. … In any event, the question of their membership in this nation should not be called into question at the preliminary stage of a motion to strike out.

[378]I take from that comment that O’Sullivan J.A. was clearly appreciative of the fact that this was a motion to strike and that the issue of standing (although his comments appear to relate to the individuals and not MMF) was not something that should be called into question at the preliminary stage of a motion to strike out. In other words, the question of standing in his view was something that should be determined later on.

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[379]The plaintiffs were successful in seeking leave to appeal to the Supreme Court of Canada. They assert that in their application for leave, the plaintiffs argued the issues of standing, justiciability, and the practical utility of the declarations sought. At para. 154 of their written argument before me, the following appears:

…The plaintiffs addressed the issue of standing as follows:

3.The Applicants (that is, the Plaintiffs) are precisely the persons who, as individuals, families, and as a people, have standing to challenge the constitutional validity of the impugned federal and provincial statutes and orders-in-council.

a)The Plaintiffs say that they have the right, as the individual descendants of the persons described in Sections 31 and 32 of the Manitoba Act, to seek a declaration that the impugned federal and provincial statutes and orders-in-council are invalid.

b)The Plaintiffs are members of the “families” referred to in

Section 31 of the Manitoba Act, and for whose benefit the land was to be allotted under that section.

c)They have the right, as the Métis people, described in s. 35 of the Constitution Act, 1982, to seek a declaration of unconstitutionality regarding the measures which violated those provisions of Sections 31 and 32 of the Manitoba Act intended for their benefit.

[380]I note from the foregoing that the basis of the argument was the rights or interests of the individual plaintiffs. There was no argument, at least none made known to me, that the application for leave made any reference to standing of either of the corporations then named as plaintiffs.

[381]Having obtained leave, the case was argued before the Supreme Court of

Canada which, on March 2, 1990, rendered its decision reported at [1990] 1 S.C.R. 279. Wilson J. delivered the judgment of the court. The judgment was

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brief. There is no reference whatsoever to the issue of standing. The court’s judgment related only to its conclusion that Canada had not met the test required to strike out a statement of claim, namely, that its outcome was “plain and obvious” or “beyond doubt”. The court found the issues to be justiciable and that the action should proceed to trial. It, therefore, allowed the appeal and set aside the order of the Court of Appeal striking out the plaintiffs’ claim.

[382] Having considered the judgments of the various courts dealing with Canada’s motion to strike the statement of claim, I conclude that it is not clear that the decision was, or was intended to be, a final decision in respect of the issue of standing.

[383]In any event, the case now before me is not the same case as was before Barkman J. True, the standing question is the same albeit that one of the corporate plaintiffs is no longer a party, but the issues which must now be decided include not only the declaratory relief sought at the time the motion came before Barkman J. but additional relief, namely:

(1)aside from the declaration that certain enactments of Canada and Manitoba were ultra vires, additional relief was sought, namely a declaration that those enactments were otherwise unconstitutional;

(2)a declaration that Canada failed to fulfill its obligations, properly or at all, to the Métis under sections 31 and 32 of the Act, and pursuant to the undertakings given by the Crown;

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(3)a declaration that Manitoba, by enacting certain legislation and by imposing taxes on lands referred to in section 31 of the Act prior to the grant of those lands, unconstitutionally interfered with the fulfillment of the obligations under section 31 of the Act;

(4)a declaration that there was a treaty made in 1870 between the Crown in right of Canada and the Provisional Government and people of Red River.

The fundamental issues before the court in the lawsuit have clearly changed.

[384]For the foregoing reasons, I therefore conclude, following the dictum of Binnie J. in Danyluk, supra, that the plaintiffs have failed to establish the preconditions for the operation of issue estoppel which is the first of a two-step analysis as to whether issue estoppel should be applied.

[385]Notwithstanding this, I will turn to consider the second part of the two- step analysis, namely, whether as a matter of discretion issue estoppel ought to be applied.

[386]In Danyluk, Binnie J. went on to consider the question of the exercise of

the discretion. At p. 492, para. 62, he confirmed, “There is no doubt that such a discretion exists.” He did, though, adopt the comments of Estey J. in General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72 at 101, [1983] S.C.J. No.

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9 (QL), “that in the context of court proceedings ‘such a discretion must be very limited in application’.”

[387]At pp. 492-93 of Danyluk, Binnie J. wrote:

¶ 63 In Bugbusters, supra [British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R.

(3d) 1 (C.A.)], Finch J.A. (now C.J.B.C.) observed, at para. 32:

It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.

Apart from noting parenthetically that estoppel per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable in origin), I think this is a correct statement of the law. Finch J.A.’s dictum was adopted and applied by the Ontario Court of Appeal in Schweneke, supra, at paras. 38 and 43:

The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrine exist… . The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances. In exercising the discretion the court must ask — is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?

. . .

…The discretion must respond to the realities of each case… .

[388]What are the factors to be considered in the exercise of the court’s

discretion? The list is an open one. It should be fact specific to the case in question.

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[389]As for allowing the doctrine of issue estoppel to prevail, the factors are the usual and the obvious, namely, finality in litigation, which then avoids the prospect of inconsistent decisions, the preservation of judicial resources, economic efficiency, fairness to the plaintiffs in this case in not having to re-litigate an issue that has previously been decided, and others.

[390]On the other hand, there are, in my view, in this case many factors which would support an exercise of discretion against the application of the doctrine of issue estoppel. Some of these are the following:

(1)My expressed view that the expectation of Barkman J. and of

O’Sullivan J.A. was that the determination of standing was with respect to determination of the interlocutory motion to strike only, not to the issues that the court would address at trial.

(2)There was no evidence before the court in respect of the motion heard by Barkman J. and, of course, no evidentiary basis for the court’s consideration in the appeals.

(3)The case has changed. The declarations now sought are different than the sole declaration sought by the action when the motion to strike was adjudicated.

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(4)In none of the decisions was there any discussion as to possible differentiation between the individual plaintiffs and the corporate plaintiffs, or either of them.

(5)The law as to who may hold aboriginal rights and as to standing has developed since the motion to strike was adjudicated. This is evident from the decisions of Maurice et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1999), 183 F.T.R. 9, [1999] F.C.J. No. 1962 (T.D.) (QL), Native Council of Nova Scotia v. Canada, 2002 FCT 6, [2002] F.C.J. No. 4 (T.D.) (QL), First Nations of Saskatchewan v. Canada (Attorney General), 2002 FCT 1001, [2002] F.C.J. No. 1324 (T.D.) (QL), and Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, [1992] S.C.J. No. 5 (QL).

[391]Maurice et al., supra, was a claim by two individuals, Ambrose and Mervin Maurice, which arose from the defendants’ refusal to pay certain

compensation to them equal to that paid to other aboriginal peoples. The Metis Society of Saskatchewan Sapwagamik Local 176 Inc. was a corporation whose members resided in or near the community of Sapwagamik in northern Saskatchewan. The individual plaintiffs were president and vice-president, respectively, of the Society. The Society and the individual plaintiffs were represented by the same counsel.

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[392]At p. 10 of her reasons for judgment, Reed J. wrote:

[6]In the Statement of Claim, the Society is described as representing the interests of the Métis persons who resided in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.

[393]In addressing the standing issue, Reed J. wrote that the requirements for public interest standing were set out in Canadian Council of Churches, supra, and stated the three criteria identified by Cory J. in that judgment. At p. 11, she wrote:

[8]… There is no doubt that the first two requirements are met insofar as the Society is concerned. The third element, however, does not apply in the present situation. An action by private litigants, Ambrose and Mervin Maurice, is in existence.

Reed J. wrote that the plaintiffs argued that the Society was entitled to standing as it could be expected to play at least two supporting roles: (1) as a backup to the plaintiff in the event of death, injury or some other contingency that would prevent the individuals from continuing, and (2) to ensure that all arguments and points of view considered by affected Society members to be relevant to the issues in question would be advanced. In addition, the plaintiffs argued that it would be a benefit to the administration of justice to have the community who would be affected by the decision involved in the litigation.

[394]Reed J. found that the Society was not a necessary party to the litigation, concluding that the action could be effectually and completely settled without the Society as a party.

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[395]In Native Council of Nova Scotia, supra, the defendants moved, inter alia, for an order that the Native Council of Nova Scotia cease to be a party to the action. The individual plaintiffs were off-reserve Indians who claimed that the defendants had breached the duty to consult owed to them with regard to certain agreements. Native Council of Nova Scotia was a registered society. The court ordered that Native Council of Nova Scotia be removed as a plaintiff. It held that Native Council did not have the same interest as the individual plaintiffs, that the relief sought by the plaintiffs related to the duty of consultation owed to individuals, and that Native Council would not be owed that duty even if its members were.

[396]In his reasons, Blanchard J. wrote:

¶11 The jurisprudence of this Court has dealt with the status of incorporated bodies representing aboriginals. In Barlow v. Canada, (2000) 186 F.T.R. 194, at paragraph 61, Mr. Justice Teitelbaum stated that an incorporated body representing aboriginals does not have treaty rights and, since it does not have the same interests in the proceeding as individuals, it cannot bring a representative action.

¶12 In Maurice v. Canada (Minister of Indian Affairs and Northern Development), (1999) 183 F.T.R. 9, Madam Justice Reed had to decide whether or not the “Metis Society of Saskatchewan Sapwagamik Local 176 Inc.” should be removed as a plaintiff. At paragraph 6 … of her reasons, Justice Reed stated:

In the Statement of Claim, the Society is described as representing the interests of the Metis persons who reside in or near the community of Sapwagamik in northern Saskatchewan. The relief sought relates to the constitutional, fiduciary, statutory, common law and equitable obligations owed by the defendants to the plaintiffs. As such, the relief sought relates only to the individual plaintiffs. The Society per se, as a corporation, will not be owed those obligations, although its members may.

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¶13 In my opinion, the NCNS should be removed as a party. The NCNS, just as the Metis Society of Saskatchewan Sapwagamik Local 176 Inc., is a registered society and, as a result, does not have the same interest as the individual plaintiffs. The relief sought by the individual plaintiffs relates to the duty of consultation owed to them by the defendants. As stated by Justice Reed in Maurice, supra, the NCNS would not be owed this duty even if its members might be. …

[397]In First Nations of Saskatchewan, supra, the defendant moved to have the plaintiff, Federation of Saskatchewan Indian Nations (the “FSIN”),

cease to be a party on the grounds that it was not a necessary party. The plaintiffs were the FSIN and individual treaty Indians from Saskatchewan. The principal issue in the action was whether the Firearms Act, S.C. 1995, c. 39, and the regulations made under that Act infringed the treaty rights of treaty Indians in Saskatchewan. Declaratory and injunctive relief was sought against the Crown. In his judgment, Hugessen J. wrote:

¶7 On the question of standing, the twin tests of interest and necessity were enunciated by the Supreme Court in Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575 at 598:

…to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the court.

¶8 As to interest, a number of recent decisions have held that incorporated entities which represent aboriginal people cannot claim to have a direct interest in claims of treaty or aboriginal rights. As a result, standing cannot be granted to these organizations on the basis of a direct interest in the matter….

¶9 The plaintiffs in this action claim that the Firearms Act infringes the treaty right of the “individual members of the First Nations” to hunt, including the right to use firearms while hunting. These treaty rights belong to the members of the FSIN, not the FSIN itself….

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¶10 Likewise, as to necessity, it is clear that the FSIN is not a necessary party because other individual plaintiffs can bring forward the same challenge, and have, in fact, done so.

The comments of the courts in the foregoing cases, in my view, apply to the MMF here.

[398] Since completion of argument, Canada referred me to the case of

Labrador Metis Nation v. Newfoundland and Labrador (Minister of

Transportation and Works), 2006 NLTD 119, [2006] N.J. No. 213 (QL), a decision delivered July 19, 2006. I have read the decision and have considered the brief remarks provided by letter from counsel for both Canada and the plaintiffs. In my view, that case is clearly distinguishable from the case before me and, with respect, is of no persuasive authority in the context of this case.

[399]MMF is not by its membership co-extensive with those individuals who were, or their descendants who perhaps are, entitled under sections 31 and 32 of the Act. Section 31 makes clear that the grant was to be divided among the children of the half-breed heads of families residing in the province at the time of the said transfer to Canada, and section 32 makes clear that its purpose is the quieting of titles and assuring the settlers in the province peaceable possession of the lands now held by them.

[400]Evidence which was before me at the trial, but not before Barkman J., from the president of the MMF was that the membership of the MMF doubtless includes people whose descendants had, and who themselves have, no interest

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under sections 31 and 32 and, as well, doubtless does not include people who are descendants of people who had an interest under sections 31 and 32 of the Act.

[401]Both the development of the law which recognizes the difference between individuals and a corporation respecting enjoyment of aboriginal rights and treaty rights and the fact that the membership of the MMF is not co-equal to those entitled under sections 31 and 32 of the Act are matters before me which were not before Barkman J. or the courts on appeal at the time the issue of standing was considered as part of the interlocutory motion to strike the statement of claim.

[402]There has, in my view, been a further development of the law as to entitlement to public interest standing in litigation. While that development was not a change in the law, there has been direction from the Supreme Court of Canada in Canadian Council of Churches, wherein the court, as Charron J.A. described in Canadian Civil Liberties Assn. v. Canada (Attorney General)

(1998), 161 D.L.R. (4th) 225, [1998] O.J. No. 2856 (QL), maintained the criteria set out in the earlier cases but “clearly opted for a restrictive approach in their application” (p. 235, para. 21).

[403]Canadian Council of Churches was a case wherein the Canadian Council of Churches, a federal corporation, sued for a declaration that many of the amended provisions in the Immigration Act, 1976, S.C. 1976-77, c. 52, as

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am. by S.C. 1988, c. 35 and c. 36, violated the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, R.S.C. 1985, App. III. Canada brought a motion to strike the action, one of the grounds being that the Council did not have standing. Cory J., writing for the court, stated, at pp. 252- 53:

The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that that designation implies. … Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.

. . . . .

It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?

[404] He addressed that third aspect at p. 254:

It is this third issue that gives rise to the real difficulty in this case. The challenged legislation is regulatory in nature and directly affects all refugee claimants in this country. Each one of them has standing to initiate a constitutional challenge to secure his or her own rights under the Charter. The applicant Council recognizes the possibility that such actions could be brought but argues that the disadvantages which refugees face as a group preclude their effective use of access to the court. I cannot accept that submission. Since the institution of this action by the Council, a great many refugee claimants have, pursuant to the provisions of the statute, appealed administrative decisions which affected them. … It is clear therefore that many refugee claimants can and have appealed administrative decisions under the statute.

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[405]The comments of Cory J. relative to the question — is there another reasonable and effective way to bring the issues before the court — is particularly apt here. Not only is there another reasonable and effective way of doing so other than by MMF, the obvious fact is that it has been done. Seventeen individual plaintiffs are parties in this action and the defendants concede that they have standing to bring their claim before the court as they have done in the trial before me.

[406]I have no doubt on the evidence that the MMF fulfills a significant role on behalf of many of the Métis people in Manitoba today. Indeed, in future negotiations with Canada and Manitoba for a land claims agreement, whether with or without the benefit of declaratory relief, the MMF may well be requested by the individual plaintiffs in this action, or by the membership of MMF, or by Canada and Manitoba, to lead or be an active participant in such negotiations. All of that, however, is a very different matter than the legal issue of standing in this litigation.

[407]In the circumstances of this litigation, even were I of the view that the criteria necessary to establish the doctrine of issue estoppel had been met, I would have exercised my discretion for the reasons given and not allowed that doctrine to prevail. In the result, I conclude that the defendants are permitted to reargue the issue of standing and having considered the argument, for the foregoing reasons, I deny MMF standing in the action.

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LIMITATION OF ACTIONS

[408]The time frame material to the plaintiffs’ action is approximately late 1869

to 1890. It was during that period that the Red River delegates were selected, the negotiations between them and Macdonald and Cartier occurred, the Bill was introduced into and became the Act passed by Parliament, the Provisional Government heard the report of Ritchot and voted approval of the Act, the Imperial Parliament passed the Constitution Act, 1871, the Province of Manitoba and its Legislative Assembly came into being, and the administration and implementation of sections 31 and 32 of the Act, including the passage by both Canada and Manitoba of the impugned legislation in this action, occurred.

[409]The plaintiffs’ action is founded upon sections 31 and 32 of the Act

including the negotiations leading to the Act. They assert a breach of treaty and/or agreement, the breach of sections 31 and 32 of the Act by the passage of unconstitutional statutes and orders in council by Canada and by Manitoba in the years following 1870, as particularized in the statement of claim, and breaches of other duties owed by Canada to the plaintiffs, all having to do with the fulfillment of the alleged obligations imposed upon Canada toward the children of the half-breed heads of families residing in Manitoba at July 15, 1870 (section 31) and toward settlers in the province (and particularly in respect of this case, Métis settlers) at that time (section 32).

[410]The plaintiffs assert that their action against Canada is founded upon a challenge to the constitutionality of federal legislative measures and, more

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comprehensively, a claim that Canada failed to discharge a fiduciary duty toward the half-breed children, which duty they argue was constitutionally mandated by section 31. The plaintiffs assert that their action against Manitoba is founded upon a challenge to the constitutionality of provincial legislation as particularized in the statement of claim.

[411]The plaintiffs acknowledge that in the ordinary case limitation periods apply. They assert, however, that this is not an ordinary case and in particular that where, as here, a constitutional challenge is brought, limitation periods do not apply.

[412]Canada, on the other hand, argues that The Limitation of Actions Act

should apply and that the plaintiffs’ action should be dismissed as statute barred. It asserts that on the facts of this case, those persons entitled to rights under sections 31 and 32 of the Act would have been aware of their rights and, as well, would have been aware of the manner in which Canada administered and implemented the legislation. In short, Canada says that any failure on its part would have been well known to those persons who had the right to complain, by at least 1885 and probably earlier.

[413]Manitoba does not assert that a particular limitation date applies in this action as against it. It says it is unlikely that a provincial statute can remove the right to a constitutional remedy. It submits, however, that the policy behind limitation dates applies to constitutional cases and that there is a valid reason for

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the courts to insist that these matters be brought in a timely fashion. Manitoba asserts that when one is required to determine the vires of legislation, it is essential that a pith and substance analysis be done and in order to do so, it is necessary to understand the purpose and effect of the legislation in question. It is critical, says Manitoba, in the proper undertaking of this task to have an understanding of the social context, culture and needs of the community extant at the time of passage of the legislation.

[414]In support of their argument that no limitations legislation is applicable in this case because it is one where a constitutional challenge is brought, the plaintiffs rely upon Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539, [1986] S.C.J. No. 68 (QL).

[415]In that case Air Canada sought to challenge the constitutional validity of the British Columbia Gasoline Tax Act. To be able to commence action to do so, Air Canada had to obtain a fiat from the provincial Crown. The Executive Council, on the advice of the provincial Attorney General, recommended that the Lieutenant Governor deny the fiat, which he did. This action was a challenge to that denial. The Supreme Court of Canada allowed Air Canada’s application and granted an order in the nature of mandamus directing the Attorney General of

British Columbia to advise the Lieutenant Governor to grant his fiat to Air Canada’s petition.

[416] At p. 543 of that judgment, La Forest J. wrote:

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The applicable law on this issue evolved from the well established principle that neither Parliament nor a legislature can preclude a determination of the constitutional validity of legislation.

[417]I note, however, that La Forest J.’s comments were made in the context

of that case, not in the context of a Limitation of Actions Act argument.

[418]Indeed, that was made clear by the fact that La Forest J. continued the above quoted remark as follows:

…That principle was thus expressed by Laskin J. (as he then was) in Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 151:

The question of the constitutionality of legislation has in this country always been a justiciable question. Any attempt by Parliament or a Legislature to fix conditions precedent, as by way of requiring consent of some public officer or authority, to the determination of an issue of constitutionality of legislation cannot foreclose the Courts merely because the conditions remain unsatisfied.

… and by his comments at pp. 549-50:

Finally, counsel for the respondent argued that a judgment along these lines would preclude the province’s relying not only on Crown immunity, but also on limitation periods, retroactive remedial legislation and mutual mistake of law to retain monies collected under ultra vires legislation. While I do not wish to enter into these issues at any length, I do not think this conclusion necessarily follows. There is a difference between an executive act directly interfering with a recourse to the courts for the recovery of monies under an allegedly unconstitutional statute and relying on general principles of law like limitation periods which are aimed at different purposes, in that case, barring stale claims. The significance of this distinction is best left to be raised in the principal action when the matter, which was simply touched upon in this Court, can be examined in depth.

[419]I note as well that Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, [1974] S.C.J. No. 45 (QL), was not a case involving the issue of the

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applicability of limitations defences in actions wherein constitutional challenges are being advanced.

[420]The plaintiffs also rely upon the comment of Twaddle J.A. in Dumont v. Can. (A.G.), [1988] 5 W.W.R. 193 (Man. C.A.), [1988] M.J. No. 327 (QL). That decision was in respect of an earlier application in the present case, wherein, at p. 207, he wrote:

The courts can determine the constitutional validity of legislation no matter how old it is.

For that, Twaddle J.A. relied upon A.G. of Manitoba v. Forest, [1979] 2 S.C.R. 1032, [1979] S.C.J. No. 86 (QL), wherein the Supreme Court of Canada held that the Official Language Act, S.M. 1890, c. 14, was inoperable although it had been enacted almost 90 years before.

[421]But again, in my view, one must look at Twaddle J.A.’s comments in full context. What he wrote at pp. 207-8 was:

What the court is being asked to consider in this case is the constitutional validity of spent legislation which does not affect anyone’s current rights. The rights affected by the impugned legislation were the statutory rights of individuals who are now deceased. These rights are not being pursued individually by the legal representatives of the persons whose rights they were, but generally by descendants whose degree of relationship is not even stated.

The courts can determine the constitutional validity of legislation no matter how old it is. Thus, in A.G. Man. v. Forest, [1979] 2 S.C.R. 1032 … the Supreme Court of Canada held that the Official Language Act, S.M. 1890, c. 14, was inoperable although it had been enacted almost 90 years before. The differences in that case from this are, however, quite significant. The language rights conferred by the Manitoba Act were conferred on the public generally. They were conferred not only on persons then alive, but also on all future generations.

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[422]The law with respect to the rationale for limitations statutes is trite. In my view, however, it would be useful to make reference to comments made in a few cases which I believe are apposite for this case.

[423]In Novak v. Bond, [1999] 1 S.C.R. 808, [1999] S.C.J. No. 26 (QL), Iacobucci and Major JJ., in dissent, wrote the following, at p. 816:

¶8 Almost all applications of limitations statutes will seem harsh. But their finality should not obscure their value. They bring needed stability to society by enabling potential defendants to plan their affairs in the safe assumption that stale claims cannot be raised against them. They minimize the risk that evidence relevant to the claim will be lost. In addition, they are an incentive for plaintiffs not to “sleep on their rights”.

See Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at para. 34.

[424]McLachlin J., for the majority, wrote, at p. 839:

¶64 In Peixeiro v. Haberman, [1997] 3 S.C.R. 549, this Court affirmed its earlier identification of the traditional rationales of limitations statutes in M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at pp. 29-30.

Limitations statutes were held, at p. 29, to rest on “certainty, evidentiary, and diligence rationales”. In M.(K.), supra, this Court noted at pp.

29-30:

Statutes of limitations have long been said to be statutes of repose…. The reasoning is straightforward enough. There

comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations….

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim….

Finally, plaintiffs are expected to act diligently and not “sleep on their rights”; statutes of limitation are an incentive for plaintiffs to bring suit in a timely fashion.

[425]In Wewaykum Indian Band, supra, Binnie J., for the court, wrote, at pp. 304-5:

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¶121 The Cape Mudge Band argues that the limitation periods otherwise applicable in this case should not be allowed to operate as

“instruments of injustice”…. However, the policies behind a statute of limitations (or “statute of repose”) are well known…. Witnesses are no longer available, historical documents are lost and difficult to contextualize, and expectations of fair practices change. Evolving standards of conduct and new standards of liability eventually make it unfair to judge actions of the past by the standards of today. As the Law

Reform Commission of British Columbia wrote in support of an “ultimate”

30-year limitation period in 1990:

If there are limitation periods, conduct which attracts legal consequences is more likely to be judged in light of the standards existing at the time of the conduct than if there are no restrictions on the plaintiff’s ability to litigate. This rationale for the limitation of actions is of increasing importance, given the rate at which attitudes and norms currently change. New areas of liability arise continually in response to evolving sensitivities.

[426]And, in M.M. v. Roman Catholic Church of Canada et al. (2001), 160 Man. R. (2d) 265, 2001 MBCA 148, the Manitoba Court of Appeal wrote, at pp. 276-77:

[43]In Graeme Mew, The Law of Limitations (Toronto and Vancouver: Butterworths, 1991), four broad categories of reasons for limitation periods are identified (at pp. 7-8):

. . . . .

3.2.Evidentiary Concerns

With the passage of time between the occurrence of events giving rise to a claim and the adjudication of the claim, the quality and availability of the evidence will diminish. Memories will fade, witnesses will die or move away, and documents and other records will be destroyed. If a point in time is reached when evidence becomes too unreliable to form a sound basis for adjudication, a limitation period should prevent the claim from being adjudicated at all.

. . . . .

3.4.Judgmental Reasons

If a claim is not adjudicated until many years after the events that give rise to it, different values and standards from those prevailing

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at the time the events occurred may be used in determining fault. Because of changes in cultural values, scientific knowledge, and societal interests injustice may result. Can it be said that the conduct of the “reasonable person” as perceived by a court today would accord with the view taken by a judge of an earlier generation?

[427]While none of Novak, supra, Wewaykum Indian Band or M.M., supra was a case involving the constitutional validity of legislation, the foregoing comments from these cases, in my view, merit consideration in this case. There is here a considerable mass of material, most of it archival. The plaintiffs argue these materials are tantamount to having the people involved in the process at the material time appearing in the courtroom as witnesses.

[428]That, in my view, is not so. I have no doubt that the ability to have those individuals or at least some of them testify and be challenged in respect of their testimony would have been, if not essential, extremely helpful in endeavoring to ascertain what actually occurred in respect of the negotiations leading up to passage of the Act, and more importantly, what actually occurred in the administration and implementation of the Act including the enactment of the legislation and regulations which followed, and the conduct of Canada, Manitoba and the Métis community, including their wishes, in respect of the implementation of the Act.

[429]Indeed, despite their argument that the archival and other documents are tantamount to having the authors appear as witnesses, the plaintiffs, as I have already stated, argued that the land documents filed with the Land Titles Office,

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while doubtless of a high degree of accuracy, could be relied upon only for what the documents said but could not be taken to establish that what the documents said actually occurred.

[430]In this case it is important in my view to note that, while many of the individuals entitled to benefit were doubtless unsophisticated people, many were not, particularly the leaders of the Métis community and the Catholic clergy both of whom were active in the governance and life of the people of the province both before and after 1870. Until 1878, the majority of the members of the Legislature of Manitoba were either Métis, or French Canadians resident in Manitoba and sympathetic to the cause of the Métis. They would doubtless have had knowledge of the intent of sections 31 and 32 of the Act and of the expectations of the community. As well, they would have had knowledge of the status of the administration of sections 31 and 32 of the Act and of the rights of those entitled, in the event of governmental breach.

[431]Such was apparent when the Manitoba Legislature, in 1890, passed The Public Schools Act and effectively repealed the provisions of section 22 of the

Act which provided for funding to denominational schools. That legislation was challenged immediately.

[432]Barrett v. The City of Winnipeg (1891), 7 M. R. 273, and Logan v. The City of Winnipeg (1891), 8 M. R. 3, were each actions commenced to quash by-laws of the municipal corporation of the City of Winnipeg for the

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levying of rates for municipal and school purposes in the City of Winnipeg. The basis of the argument was that the by-laws were dependent upon the passage of The Public Schools Act, 1890 which, it was alleged, was ultra vires the Manitoba Legislature in light of section 22 of the Act. The Public Schools Act was passed effective May 1, 1890. Barrett’s application was argued October 27, 1890, before Killam J. of the Manitoba Court of Queen’s Bench. An affidavit from Taché was filed in support. Killam J.’s decision was appealed and was argued before the Manitoba Court of Queen’s Bench en banc on December 13, 1890, and decided February 2, 1891. An appeal was then heard by the Supreme Court of Canada, whose judgment was delivered October 28, 1891, and both Barrett, supra and Logan, supra were argued on appeal before the Privy Council in July 1892. The Privy Council decision is reported at [1892] A.C. 445.

[433]In light of the decisions in Barrett, supra and Logan, supra, the community took steps under subsection 22(2) of the Act and petitioned the Governor General in Council for relief. The Governor General in Council referred a special case to the Supreme Court of Canada, which is reported at (1893), 22 Can. S.C.R. 577. Ultimately, that case was appealed to the Privy Council wherein it was argued in December 1894 and the opinion of the Privy Council was given January 29, 1895 — Brophy v. Attorney-General of Manitoba, [1895] A.C. 202.

[434]In the report of the special case referred by the Governor General in Council to the Supreme Court of Canada, the petition of Taché to the Governor

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General in Council was published. It and other documents also published in the report detailed developments in the province prior to and immediately following the effective date of The Public Schools Act. Paragraph 5 of Taché’s petition, found at page 597 of the report, reads as follows:

Fifth, that later on, working under the above-mentioned disadvantage and wishing for a remedy against laws which affected their rights and privileges, in the matter of education, 4,267 members of the Roman Catholic church in the Province of Manitoba, on behalf of themselves and their co-religionists, appealed to the Governor General in Council from the said Acts of the Legislature of the Province of Manitoba,…

[435]I note in the 1870 census of the province that the population was recorded and categorized in part by language and religion. One large group was the English half-breeds. Another larger group was the French Métis. The English half-breeds were largely Protestant and the French Métis, largely Catholic. Taché and Ritchot were both very active and filled very much a leadership role in the community, particularly the French Catholic/Métis community. I make this comment only because it was Taché who reported that 4,267 members of the Roman Catholic church in Manitoba had signed the petition to the Governor General in Council in respect of the alleged breach of their educational rights under section 22 of the Act by reason of the passage of The Public Schools Act, 1890 by the Province of Manitoba. And in my view, it is safe to infer that many of the 4,267 signatories would have been Métis. It is clear that those members of the community including their leadership certainly were alive to the rights which they asserted were given to them under the Act and of the

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remedies they had in the event of an occurrence which they considered to be a breach.

[436]As well, in 1890, the Manitoba Legislature passed the Official Language Act which provided that notwithstanding any other statute or law (including section 23 of the Act), the English language only shall be used in the Legislature or courts of Manitoba. That Act was also challenged before the Manitoba courts soon after it was enacted. It was ruled ultra vires in 1892 by Judge Prud’homme

of the County Court of St. Boniface in the unreported decision of Pellant v. Hebert and it was again challenged in Manitoba courts and ruled unconstitutional in 1909 in the unreported decision of the County Court of St. Boniface in Bertrand v. Dussault.

[437]While it is true that these latter events occurred in 1890, whereas the alleged breaches with respect to sections 31 and 32 of the Act occurred largely in the 1870s, still many in the community in 1890, including those who were leaders, were the same people as those present in 1870 and following. But, no court proceedings were commenced in respect of sections 31 and 32 of the Act

until the present action, on April 15, 1981.

[438]Limitation of actions statutes were known to the law in 1870 and thereafter. The laws of England applicable to Manitoba in 1870 included such legislation.

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[439]Manitoba itself passed its first limitation of actions legislation in 1931, namely, The Limitation of Actions Act, S.M. 1931, Cap. 30. The Limitation of Actions Act was reenacted in 1940 (S.M. 1940 (1st), Cap. 29). Excepting for the moment the issue of constitutional validity or challenge, both of those Acts

contained similar provisions which would have been applicable to the plaintiffs’ action. Those Acts necessitated that actions for any equitable ground of relief had to be commenced within six years from discovery of the cause of action. They also provided after listing various grounds for action that any other action not specifically provided for in the statute had to be commenced within six years after the cause of action arose. Both Acts also contained provision to the effect that if a person had a cause of action which arose before or after the coming into force of the Act, such action would not be barred until the expiry of six months after the Act came into force.

[440]The Limitation of Actions Act in force in Manitoba at the time this action was commenced contained the same provisions material to this litigation as did the Acts of 1931 and 1940 to which I earlier referred.

[441]In this action, the plaintiffs seek declaratory relief which is a claim for equitable relief. Excepting the issue of constitutional validity and challenge,

there is, in my view, no question that the plaintiffs’ action is outside the limitation period statutorily mandated by The Limitation of Actions Act.

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[442]In line with Twaddle J.A.’s comments in Dumont, supra to which I earlier referred, Canada argued that the nature of the constitutional rights in question should bear materially on the issue whether limitations statutes are applicable. It asserted that sections 31 and 32 were unique types of constitutional provisions in that they required the government to deliver an asset to a citizen on a onetime basis only and that once done the constitutional obligation was spent. The benefits conferred by section 31 were conferred only on persons then alive and in fact resident in the Province of Manitoba on July 15, 1870, and by section 32, on those who were settlers in the Province and held land at July 15, 1870. They were not rights, like language, denominational schools or governmental institutions, which carry an ongoing and continuous obligation for future generations.

[443]This action is not one being brought by heirs of those entitled to the sections 31 and 32 benefits asserting that by reason of constitutionally invalid acts or omissions, their ancestors did not receive the benefits to which they were entitled. The evidence in this action from those individual plaintiffs whose ancestors were entitled to section 31 and section 32 benefits is that they cannot say that those ancestors did not get that to which they were entitled.

[444]This is not a case where any of the plaintiffs is seeking redress for

individual loss or the enforcement of individual rights. Rather, the plaintiffs’ claim is one brought for collective relief arising from the failure to grant an alleged collective benefit under sections 31 and 32. And, assert the plaintiffs, it

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is solely for certain declaratory relief which, if granted, “would be greatly to the advantage of the Métis in seeking to achieve a land claims agreement pursuant to subsection 35(3) of the Constitution Act, 1982”.

[445]I am satisfied on the evidence in this case that the residents at the time, or their leaders, would have known of their rights under section 31 and section 32 of the Act, and would have known that which was actually transpiring in respect of the administration and implementation of those sections, including the federal and provincial legislation and enactments.

[446]As they had demonstrated their willingness to litigate in respect of their rights, one could infer from their conduct respecting sections 31 and 32 that they were content at least ultimately with the administration and implementation of the Act. While I am not prepared to do so, I do infer that they chose not to challenge or litigate in respect of section 31 and section 32 knowing of the sections, of what those sections were to provide them, and of their rights to litigate.

[447]In the circumstances as exist in this case, I conclude that The Limitation of Actions Act applies and on that basis I would dismiss the plaintiffs’ action.

[448]If I am incorrect in that conclusion, it is my view that the only aspect of

the plaintiffs’ action that would not be statute barred is their request for a declaration pertaining to the constitutional validity of the enactments listed in paragraphs 49, 50, 51 and 52 of their statement of claim including the effect of

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such legislation upon the plaintiffs’ rights as claimed; that is, a declaration as to whether those enactments were ultra vires the Parliament of Canada and/or the Legislature of Manitoba respectively.

THE DOCTRINE OF LACHES

[449]Both Canada and Manitoba rely on the equitable defence of laches and acquiescence. These defences are available, if the circumstances so exist, notwithstanding the existence of limitation periods pursuant to The Limitation of Actions Act.

[450]In two cases, to which I have already referred, namely, M.(K.) v. M.(H.),

[1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 (QL), and Wewaykum Indian Band, the Supreme Court of Canada expounded upon and dealt with the defence of laches. In the former, La Forest J., at pp. 76-77, wrote:

The leading authority on laches would appear to be Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, in which the doctrine is explained as follows, at pp. 239-40:

…the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect

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either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

This explanation was approved by Lord Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218 (H.L.), where, after quoting the above passage, he comments, at pp. 1279-80:

I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.

[451] At pp. 77-78, La Forest J. wrote:

The rule developed in Lindsay is certainly amorphous, perhaps admirably so. However, some structure can be derived from the cases. A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-65, where the authors distill the doctrine in this manner, at p. 755:

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant’s conduct or (b) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb. …

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

[452] And, at pp. 78-79, La Forest J. wrote:

Acquiescence is a fluid term, susceptible to various meanings depending upon the context in which it is used. Meagher, Gummow and

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Lehane, supra, at pp. 765-66, identify three different senses, the first being a synonym for estoppel, wherein the plaintiff stands by and watches the deprivation of her rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches — after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived. … The final usage is a confusing one, as it is sometimes associated with the second branch of the laches rule in the context of an alteration of the defendant’s position in reliance on the plaintiff’s inaction.

As the primary and secondary definitions of acquiescence suggest, an important aspect of the concept is the plaintiff’s knowledge of her rights. It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim: Re Howlett, [1949] Ch. 767. However, this Court has held that knowledge of one’s claim is to be measured by an objective standard; see Taylor v. Wallbridge (1879), 2 S.C.R. 616, at p. 670. In other words, the question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim.

[453]And in Wewaykum Indian Band, the court, at p. 302, para. 111, described the two branches of the doctrine of laches and acquiescence as (1)

where “the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver”, and (2) such conduct “results in circumstances that make the prosecution of the action unreasonable”.

[454]For the reasons already expressed in regard to limitations of actions, I have no hesitation in finding that those entitled to benefits under section 31 and section 32 of the Act were at the material time aware of their rights thereunder and of their right to sue if they so wished. As well, I conclude that there was grossly unreasonable delay in the commencement of action in respect of those rights and the breaches thereof as now claimed.

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[455]The question remains, however, whether the delay of the plaintiffs constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable.

[456]Both Canada and Manitoba assert that both branches of the doctrine of laches and acquiescence apply to this case. As to the former, there was no evidence introduced to explain the delay. The only explanations offered came from counsel and were essentially as follows:

(1)There was animosity in the community towards the Métis which might have deterred their willingness to do anything.

(2)Had the plaintiffs sought legal advice at the time, they would probably have been told that they had no case.

(3)There was objection expressed from time to time by community leaders and, in particular, by certain members of the Manitoba Legislature as to the delays in implementation of the Act and as to concerns about the vulnerability of the children who were to receive land under section 31.

[457]None of these are a justifiable explanation at law for those entitled under section 31 and section 32, whether individually or collectively, to have sat on their rights as they did until 1981. Nor, in my view, does this delay in the exercise of their rights square with the evidence as to the conduct of individuals

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and the larger community in respect of the steps taken when it was thought that there had been a breach of section 22 and/or of section 23 of the Act. In my view in law, this amounts to acquiescence.

[458]In addition, the delay results in circumstances that make the prosecution of this action unreasonable. Both defendants assert a number of reasons why the prosecution of this case at this date is unreasonable. Some of those reasons are as follows:

(1)There is incompleteness in the evidence. The plaintiffs assert that this is not so. They say that we have a substantial documentary record and that had the action been brought even in the 1880s or 1890s, the principals would not necessarily have been available. Cartier died in 1873 and Macdonald, in 1891.

The documentary record includes Ritchot’s diary, the speeches of

Macdonald and Cartier in Parliament at the time the Bill was introduced and debated, and other correspondence and dispatches from leading players including during the period of administration and implementation of the Act. While there are nonetheless gaps in the documentary record, generally speaking, that which the plaintiffs assert as regards the documentary record is correct.

Still, however, had the action been commenced in a timely way, there would doubtless have been some of the major participants

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available to testify, so that one would be better able to determine what exactly may have been discussed between the delegates from Red River and Macdonald and Cartier and whether there were discussions in the nature of requests on the one side for certain things and undertakings to attempt to deliver on the other but all falling short of an agreement in a legal sense. We simply do not know.

As well, while it is clear from the facts that the selection, allotment and ultimate grant of patents to the land in question, particularly under section 31, was not done in a timely fashion, it is difficult for one to put that into context given that I am forced to look at that which occurred between 1870 and 1890 largely through 2007 glasses.

(2)When one is considering the constitutionality of legislation, a pith and substance analysis is required in order to understand the purpose and effect of the legislation. Understanding the social context and the culture at the material time is critical to being able to properly undertake this task. Here, there are doubtless different societal attitudes and values than was the case over 125 years ago, including changes in the common law.

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(3)The legislation and regulations under attack were passed between 1871 and 1890 re Canada and between 1877 and 1885 re Manitoba. The outcome of a successful challenge to legislation is that the offending legislation is declared unconstitutional and of no force and effect. The outcome of a successful challenge under the doctrine of paramountcy is that the offending legislation is declared inoperable.

Such challenges were available to the forebears of the plaintiffs at the time.

Had there been a successful attack on either basis at the time, the remedy would have been much more easily determined and applied. Often where legislation is struck down as unconstitutional, it is replaced by other legislation which passes constitutional muster. Both Canada and Manitoba were deprived of that opportunity. And, in the meantime, hundreds of transactions have been conducted in accordance with those enactments.

(4)In the present action, the plaintiffs seek declaratory relief to assist them in advancing a land claim in the hope that they will be able to successfully negotiate a land claim agreement. At the material time, the available land was owned by Canada. In 1930, Canada transferred control over ungranted lands to Manitoba and thus lost,

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to a significant extent at least, an asset which it could have used to settle the claim if a timely and successful attack had been advanced. As the ungranted lands in the province are now owned by Manitoba, it, too, suffers similar prejudice in that had the claim been made successfully in a timely fashion, the remedy would likely have been either to not replace legislation struck down or to replace it with constitutionally valid legislation. Now, however, a settlement will presumably result in payment of monies or land.

[459]Declaratory relief is equitable relief. That is what the plaintiffs seek in this case. As a general rule, one who seeks equity must do so promptly. That certainly cannot be said to be the case here.

[460]For that reason and the reasons given as to why in my view the prosecution of this case at this date is unreasonable, I conclude that the doctrine of laches and acquiescence is here applicable and amounts to a successful

defence to the plaintiffs’ claim.

WAS THERE A TREATY OR AN AGREEMENT?

[461]The plaintiffs assert that the result of what they argue were negotiations between the Red River delegates and Macdonald and Cartier was a treaty or

agreement. Canada argues that what occurred were discussions, not negotiations, and both Canada and Manitoba say that there was no treaty or agreement, but simply an Act of Parliament.

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[462]In the course of the trial, there were frequent exchanges between counsel for the plaintiffs and counsel for Canada as to whether there had been negotiations between the Red River delegates and Macdonald and Cartier, or simply discussions.

[463]The historical documents record the use of various descriptors. For example, Macdonald, in his letter of instructions to Smith dated January 3, 1870, and Smith, in his comments to the Convention of 40 as reported by The New Nation on February 5, 1870, used the words “representing”, “discussions” and “confer”. On the other hand, the word “negotiations” was frequently used by

those involved directly or on the periphery of the meetings between the Red River delegates and Macdonald and Cartier in late April and May 1870.

[464]In the context of this case, it is my view that nothing turns on the point. For the reasons which follow, I conclude that the product of the discussions or negotiations, whichever descriptor one prefers, was neither a treaty nor an agreement. Moreover, it certainly was not a treaty or an agreement with aboriginals. Rather, it was an Act of Parliament recognized as a constitutional document.

[465]Indeed, that is the conclusion of the Manitoba Court of Appeal wherein Scott C.J.M., for a unanimous court, in R. v. Blais (2001), 198 D.L.R. (4th) 220,

2001 MBCA 55, wrote, at p. 225:

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[8]… Though not a treaty since it is simply an Act of the Parliament of Canada, the Manitoba Act, 1870, S.C. 1870, c. 3, is recognized as a constitutional document.

[466]That dictum aside, the evidence overwhelmingly supports the conclusion that here there was no treaty or agreement negotiated.

[467]The Red River delegates, Ritchot, Black and Scott, were chosen and appointed by the Convention of 40 which at the material time was composed of the leaders of the Settlement. The Convention of 40 became the Provisional Government, calling itself the Legislative Assembly of Assiniboia. Both the Convention of 40 and the Provisional Government operated in a manner akin to a Legislature or Parliament and represented all of the residents of Red River, not just the Métis, notwithstanding that the Métis comprised an overwhelming majority of residents in the Settlement.

[468]Ritchot and Black certainly were intelligent, educated people. Neither they nor Scott were Métis, nor did they represent the Métis per se, but rather all residents of the Settlement.

[469]I am satisfied that those who elected the delegates and the delegates themselves were familiar with the process that ultimately would have to be

followed to bring about the union of Rupert’s Land and the North-western Territory with Canada. To their knowledge, this was not something that could be done by Macdonald and/or Cartier, or by the Cabinet, none of which could bind Parliament, but only by Parliament and then subject to the provisions of section

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146 of the Constitution Act, 1867, i.e. “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve,…”

[470]Parliament’s role had been made clear to the Convention of 40, the

principals of the delegates, by Smith when he appeared before the Convention on February 7, 1870. The New Nation reported that the Convention, particularly Riel, aggressively pressed Smith, as a representative sent from Canada, to confirm which of the clauses in their list of rights Canada would accept. Smith is reported as saying:182

I have tried to explain to the Convention that I believe my powers to be sufficient to admit of my guaranteeing so far as anything can be guaranteed which is not yet passed by Parliament certain articles of this List.

[471]And, the following exchange is reported:183

Mr. Smith — I will have much pleasure in pointing out so much of the List as I can guarantee.

Mr. Riel — So you can guarantee us some articles in the sense of the word “guarantee”.

Mr. Smith — Yes, but perhaps you would be good enough to explain your idea of the word “guarantee”.

Mr. Riel — A pledge that the Canadian Government will be ready to sanction by act of Parliament what you say will be granted.

Mr. Smith — The Government will certainly bring the matter before Parliament, but it is the Parliament which must finally decide.

182Exhibit 1-0386, page 71

183Exhibit 1-0386, page 72

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[472]And later that same day, Smith again is reported184 as using language which makes clear that the Government will ask Parliament to consider a Bill but that ultimately, the transformation from Bill to Act is up to Parliament.

[473]If there were any doubt about this going into the negotiations, which there should not have been, it certainly would have become clear to the delegates from the debates in Parliament, including the speeches of Macdonald and Cartier, and the comments of Macdonald and Cartier to the delegates as

recorded in Ritchot’s diary.

[474]As well, the evidence is clear that neither Macdonald, Cartier, the Parliament of Canada, nor the Imperial Government, viewed the process as one of the negotiation of a treaty or an agreement.

[475]The only person who described the achievement of an agreement was Ritchot. But the language of his diary, his communications and his conduct in light of what was occurring at the material time make clear, in my view, that to his knowledge there was no agreement. And even he did not speak of the conclusion of a treaty.

[476]Neither Macdonald nor Cartier referred to the negotiation of any treaty or agreement in the course of the debates in Parliament. Both in fact denied that any agreement had been reached. Both also indicated that the Bill was not the

184Exhibit 1-0386, pages 73 to 77

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result of negotiations or discussions with only the Red River delegates, but that there had been discussions with others.

[477]Moreover, Macdonald told Parliament on May 2185 that, “… the Bill, of course, was open to amendment”, and Cartier on the same date,186 when asked,

“if the Constitution was to be submitted to the people before being passed”, responded, “No”.

[478] On May 4, Macdonald told Parliament187 that the clauses in the Bill “must be introduced by resolution, and would not be considered as portions of the Bill until adopted in Committee.”

[479] Later, on May 4, as recorded in the Hansard Debates (page 1366), Macdonald stated, “… with regard to other portions of the Bill, the course to be adopted will depend a great deal on the way in which the Bill passed in Parliament.”

[480] And on May 5, after some further debate on the Bill, and the expression by an Opposition member that he “hoped the Government would be willing to accept amendments in Committee”, Macdonald said, “full opportunity would be allowed for the discussion in Committee” whereupon the Bill was then read a

185Exhibit 1-0467, page 1322

186Exhibit 1-0467, page 1311

187Exhibit 1-0467, page 1358

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second time and was referred to the Committee of the Whole for discussion the following day.188

[481] As well, the statements of Macdonald and Cartier to the delegates, as recorded in Ritchot’s diary, pertaining to the need to leave the Bill as it was if they had any hope of its passage, further confirm that the outcome was not within the power of Macdonald and Cartier but of Parliament in the passage of an Act.

[482]Ultimately, after further debate, much of which was in strong opposition, some amendment of the Bill, and many failed opposition attempts to amend, the Bill was passed and received Royal Assent on May 12, 1870.

[483]All of the foregoing is evidence not of the negotiation of a treaty or agreement, nor of any belief or intent on the part of Macdonald or Cartier that they were doing so. Rather, it is evidence of a Bill en route through Parliament to passage.

[484]As for the Imperial Government, the language of Murdoch, Granville’s

delegate to the negotiations, provides insight into the unlikelihood of its considering any suggestion of a treaty, let alone an agreement, or the need for approval by the Provisional Government or people at Red River. An extract from

188Exhibit 1-0467, page 1389

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his letter dated April 28, 1870 to Granville’s deputy, Sir F. Rogers, is as follows:189

By the present mail the Governor General will, I believe, transmit to Earl Granville a copy of the terms proposed by the Provisional Government of the “Red River Territory” as the conditions of their annexation to Canada. In my letter of 21st instant, I referred to these terms as comprising conditions that were inadmissable [sic]. At that time I was but imperfectly acquainted with them, having only heard them read out. A subsequent examination of them has however confirmed the opinion I then expressed. Without entering on the points that might admit of discussion it is sufficient to notice those that are clearly inadmissable [sic]. These are principally the 1st and the 11th which would place the whole land in the territory at the disposal of the present inhabitants thus enabling them to prevent the construction of a Pacific Railway and to impede the ingress of immigrants should they desire — as is not unlikely

— to do so. The 10th and 11th conditions are also inconsistent with the arrangement entered into between Her Majesty and the Hudson’s Bay Company and sanctioned by Parliament. The 14th condition would secure an indemnity to Riel and his abettors for the execution of Scott and to all others for the plunder of the Hudson’s Bay Company stores and for other damages committed during the disturbances, concessions which this Government would not venture, even if it had the power to grant — while the condition which, though not contained in the terms, was conveyed to Judge Black and the other delegates in writing, that whatever was agreed to here must be subject to confirmation by “the Provisional Government” would have involved a recognition of the authority of Riel and his associates and would have enabled him to postpone indefinitely the transfer of the territory. Under the circumstances there was no choice but to reject these terms and to endeavour to arrange others that would not be open to objection.

[485]I take this as a strong indication of the Imperial Government’s likely

unwillingness to consider or accept the delegates who were representatives of the Provisional Government as a negotiating party to a treaty or agreement and thereby countenance in any way recognition of the authority of Riel and his associates. And, I infer therefore that the Imperial Government did not view, nor would it have accepted, the process as one of the negotiation of a treaty or

189Exhibit 1-0462

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an agreement, let alone a treaty or an agreement in respect of certain aboriginals, the Métis here, whose leader was seen to be Riel.

[486]Both the Constitution Act, 1867 and the Rupert’s Land Act, 1868

made clear that an address of both Houses of the Parliament of Canada would be required and, furthermore, that Her Majesty would have to approve. Following passage of the Act, the address was sent from both Houses of Parliament to the Imperial Government and the Order in Council of the Imperial Government authorizing the union of the Province of Manitoba with Canada was passed June 23, 1870. This, of course, preceded Ritchot’s appearance before the Legislative Assembly of Assiniboia and its approval of the Act on June 24, and so too, is evidence of a belief by Canada and Britain in a unilateral process which is the antithesis of a treaty or an agreement.

[487]In paras. 113 to 115 of these reasons, I have made reference to certain occurrences on May 2, 1870, particularly an entry in Ritchot’s diary, a

handwritten note of Macdonald, and comments of Macdonald to Parliament on the evening of May 2 when he introduced the Bill for first reading.

[488] The plaintiffs assert that there was an agreement reached between the delegates and Cartier and Macdonald as evidenced by Ritchot’s diary record and Macdonald’s handwritten note of May 2, 1870.

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[489]I do not agree. In Ritchot’s diary entry,190 the record is as follows:

We continue to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say: The land will be chosen throughout the province by each lot and in several different lots and in various places if it is judged to be proper by the local Legislature which ought itself to distribute these parcels of land…

And the record continues to say that the distribution would be “always under the supervision of the above mentioned local Legislature which could pass laws to ensure continuance of these lands in the Metis families.”

[490]And Macdonald’s handwritten note records:191

…There shall be placed at the disposal of the local Legislature one million and a half acres of land to be selected … by the said Legislature … to be distributed as soon as possible … under such legislative enactments which may be found advisable to secure the transmission and holding of the said lands amongst the half-breed families….

[491]But, there was never (on May 2 or thereafter) any agreement on the part of Canada to provide a grant of 1,500,000 acres. Moreover, Canada never agreed to place any of the lands in the new province under the jurisdiction, authority or control of the local Legislature.

[492]This was made clear on the evening of May 2, 1870 when Macdonald, speaking in Parliament, described the grant as being 1,200,000 acres and went on to say that the assistance of the local Legislature would be invoked but always with the express sanction of the Governor General. Cartier, too, spoke that evening in Parliament of a grant of 1,200,000 acres.

190Exhibit 1-0005, page 143

191Exhibit 1-0468

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[493] There can be no doubt that Ritchot and the other delegates were aware of Macdonald’s and Cartier’s speeches in Parliament on the night of May 2, 1870, and of the difference between their comments and the entry in Ritchot’s diary on those material points.

[494]In my view, consideration of the foregoing must lead to the conclusion either that there was no agreement as would have been apparent and accepted by Ritchot and the other delegates or that Macdonald (and Cartier) having made an agreement on May 2 quickly resiled from it as evidence their comments in Parliament that very night. Yet, there was not then nor has there been to this day any allegation or claim that Macdonald or Cartier had lied or acted sharply or in bad faith.

[495]As I stated in paras. 124 and 126 of these reasons, Ritchot sent a telegram to Bunn at Red River on May 4, 1870, while Macdonald, on the evening of May 4, 1870, introduced the Bill into Parliament in printed form for the first time. As well, he then moved second reading of it.

[496]It is unclear as to when exactly Ritchot’s telegram to Bunn was authored.

Was it written after first reading which occurred on May 2 when the contents of the Bill were generally outlined by Macdonald, or was it written after the Bill was introduced in printed form which occurred on the evening of May 4, 1870?

[497]If, after first reading on May 2, it was sent after Macdonald had made clear in his speech to Parliament that the land grant was to be 1,200,000 acres

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and that Canada would involve the assistance or experience of the local Legislature but subject to the sanction of the Governor General, not 1,500,000 acres and a mode of distribution as Ritchot’s May 2nd diary entry recorded had been agreed upon.

[498]If the telegram was sent after the Bill was introduced in written form on May 4, it is difficult to reconcile the telegram with the May 5 entry in Ritchot’s

diary as set forth in para. 125 of these reasons.

[499]But, the telegram makes one thing clear, viz.: — that though the Bill had been introduced before Parliament, there remained unsettled points. That is, even as at May 4, the date of the telegram, an agreement had not been reached.

[500]I conclude that Ritchot’s diary entry on May 2 — wherein he wrote, “We

continue to claim 1,500,000 acres and we agreed on the mode of distribution as follows, that is to say:…”, and then set forth the mode of distribution — was his recording of the agreement amongst the Red River delegates and not of an agreement between the Red River delegates on the one hand and Macdonald and Cartier on the other. The “We continue to claim 1,500,000 acres” could only refer to the Red River delegates, and the “we agreed on the mode of distribution as follows” forming part of the same sentence, in my view and in light of the circumstances, could only refer again to the Red River delegates.

[501]I conclude as well that Macdonald’s handwritten note of May 2, 1870

(para. 114) was simply his recording of that which Ritchot told Macdonald and

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Cartier. It was not evidence of an agreement reached between the Red River delegates on the one hand and Macdonald and Cartier on the other.

[502]To interpret it otherwise, as asserted by the plaintiffs, would, I reiterate, require one to conclude that after making this agreement, Macdonald and Cartier proceeded almost directly to Parliament, where each made speeches as to the land grant which was substantially different in material respects to that which, if

you accept the plaintiffs’ position, they had only earlier that day agreed.

[503]That Ritchot and the other delegates knew that there had been no such agreement is, in my view, confirmed by Ritchot’s telegram on May 4 to Bunn wherein he first reported that “we” (either him alone or the Red River delegates)

found the Bill satisfactory which clearly would not have been so had there been an agreement reached on May 2 and then resiled from by Macdonald and Cartier that very evening, and where secondly he went on to say in that telegram, “other points to be settled”.

[504]As well, Ritchot records in his diary an entry of May 20192 that he had written Black asking him for a letter on the subject of their negotiations with the Canadian Ministers.

[505]By letter dated May 24, 1870,193 Black responded as follows:

With regard to your suggestion that I should give some written account of our negotiations with the Government, I may say that before receiving your letter, I had been considering the propriety of such a step, but

192Exhibit 1-0005, page 155

193Exhibit 1-0500

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finally came to the conclusion that the best report which I could possibly give on the subject was the Bill itself, of which copies will, no doubt, be duly forwarded to Red River.

That is still my opinion; and I hope that on further reflection, you may be inclined to agree with me.

It is clear that Black understood that the operative and effective product of their negotiations with Macdonald and Cartier was not an agreement, but the Act.

[506]Moreover, the Red River delegates had no authority to enter into an agreement or a treaty. This is clear from the letter of instructions dated March 22, 1870, from Bunn to each of the three delegates wherein he wrote:

I have further to inform you that you are not empowered to conclude finally any arrangements with the Canadian Government.

[507]A treaty or agreement can only be concluded by people with capacity or authority to do so. Here, neither the delegates from Red River nor Macdonald or Cartier had such capacity or authority. As well, a treaty or an agreement must have consensus as to terms, certainty of terms, and finality. Here, there was not. The plaintiffs assert that negotiations began on April 25, 1870, and that agreement was reached by May 2, 1870. The evidence, even relying upon

Ritchot’s diary, is clearly otherwise.

[508]Even if the plaintiffs were to argue that the Red River delegates, while having no authority to conclude anything, had authority to negotiate an agreement or a treaty subject to approval, the evidence is clear that that did not occur. When Ritchot reported to the Legislative Assembly of Assiniboia on June 24, 1870, he referred neither to the creation of a treaty nor to an agreement.

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Ultimately, what was approved by the Assembly was the Act only. No treaty or agreement was mentioned or approved.

[509]Cartier’s comment in his confidential report to Young on July 10, 1870,194

was correct when he said:

The Delegates relied upon these explanations and forthwith entered upon the negotiations which resulted in the passing of the Act relating to the Government of the Province of Manitoba. …

[510]There was no treaty. There was no agreement. There was an Act of the Parliament of Canada which is recognized as a constitutional document.

THE MANITOBA ACT AND THE MANNER OF ITS INTERPRETATION

[511] How then does one interpret the Act, a constitutional document, and in particular sections 31 and 32 thereof which are at the heart of the plaintiffs’ case?

[512]There are considerable judicial dicta on the point. In Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36 (QL), the Supreme Court of Canada wrote, at p. 751:

This Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.

[513] But, the starting point is the language of the Act. As Iacobucci J. stated in

British Columbia (Attorney General) v. Canada (Attorney General); An

194Exhibit 1-0516

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Act respecting the Vancouver Island Railway (Re), [1994] 2 S.C.R. 41 at

88, [1994] S.C.J. No. 35 (QL):

Although constitutional terms must be capable of growth, constitutional interpretation must nonetheless begin with the language of the constitutional law or provision in question.

[514]In Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co. (F.C.A.), [1991] 1 F.C. 129 (C.A.), [1990] F.C.J. No. 545 (QL), a decision of the Federal Court of Appeal, Prince Edward Island sought to overturn an order of the National Transportation Industry, the effect of which was to abandon the entire railway system serving Prince Edward Island. The Prince Edward Island Terms of Union contained provisions concerning the railway. Prince Edward Island argued that the Terms of Union had constitutional status and that any law inconsistent with them was of no effect. It asserted that the Terms of Union required the maintenance of rail service to Prince Edward Island, including within the province and between the province and the mainland.

[515]Iacobucci C.J. (as he then was) described the appellant’s submission in

that case and the danger of it as follows:

¶10 I do not find it necessary to deal with each of the imaginative steps along the interpretive journey mapped out by the appellant which leads to his constitutional destination. I say this for the reason that the Terms of Union do not require Canada to operate the railway in Prince Edward Island or to maintain and operate a rail link between the railway within Prince Edward Island and the railway on the mainland. This is acknowledged by counsel for the appellant, who also recognizes that what the Terms of Union expressly state is that the railway on the Island shall be the property of Canada and Canada will pay the cost of a service that will place the Island in continuous communication with the Intercolonial Railway and the railway system of the Dominion.

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¶11 In my view, what the Appellant is in effect arguing is that the

Terms of Union are not clear on their face…. To resolve the doubt one must discern an understanding that must be implied from the circumstances at the time and the conduct of the parties since the Terms of Union were approved. I find this approach rather dangerous because it can easily lead to a rewriting of the Terms if not a slanting of the arrangement unjustifiably in favour of one side. But more fundamentally I think the Appellant’s approach is misguided because what is surely paramount is the meaning to be given to the words chosen by the parties in the Terms of Union.

¶12 In this respect, I do not agree that the words chosen were badly expressed or otherwise defective. In fact, I believe the relevant Terms of Union are clear in their intent and meaning and should be taken to express the agreement that was intended by the parties. In other words, there is no need to rely on the rules of statutory construction, extrinsic evidence, or legislative history when the language under consideration is clear.

[516]In my view, Iacobucci C.J.’s comments apply here. Although the case in

Prince Edward Island, supra dealt with Terms of Union expressed in language chosen by the parties to the Terms of Union, whereas in this case we are dealing with an Act of Parliament and therefore unilateral language chosen by Parliament, if the language of the Act under consideration is clear, there is no need to rely on the rules of statutory construction, extrinsic evidence or legislative history.

[517]In my view, the language of the Supreme Court of Canada in R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44, at pp. 245-46, is apposite here. The Court wrote:

¶16 Against this background, we turn to the issue before us: whether “Indians” in para. 13 of the NRTA include the Métis. The starting point in this endeavour is that a statute — and this includes statutes of constitutional force — must be interpreted in accordance with the meaning of its words, considered in context and with a view to the purpose they were intended to serve: see E.A. Driedger, Construction

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of Statutes (2nd ed. 1983), at p. 87. As P.-A. Côté stated in the third edition of his treatise, “Any interpretation that divorces legal expression from the context of its enactment may produce absurd results” (The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 290).

¶17 The NRTA is a constitutional document. It must therefore be read generously within these contextual and historical confines. A court interpreting a constitutionally guaranteed right must apply an interpretation that will fulfill the broad purpose of the guarantee and thus secure “for individuals the full benefit of the [constitutional] protection”…. “At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the [constitutional provision] was not enacted in a vacuum, and must therefore … be placed in its proper linguistic, philosophic and historical contexts”….

¶18 Applied to this case, this means that we must fulfill — but not “overshoot” — the purpose of para. 13 of the NRTA. We must approach the task of determining whether Métis are included in “Indians” under para. 13 by looking at the historical context, the ordinary meaning of the language used, and the philosophy or objectives lying behind it.

[518]As I have found, we are dealing here with an Act of Parliament, not a treaty or an agreement reached between the Red River delegates and Macdonald and Cartier. Accordingly, the starting point for interpretation of the Act, including sections 31 and 32 thereof, must be the ordinary meaning of the language of the statute viewed generously in an historical, contextual and purposive manner. The exercise is to determine what Parliament intended to accomplish in passing the Act, including any of its sections, so as to fulfill, without overshooting it, the purpose of the guaranteed right and thereby ensure that the people so entitled enjoy its full benefit. Only in the event of uncertainty or ambiguity is there any need to look beyond the plain language of the Act.

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INTERPRETATION OF THE ACT

[519]The plaintiffs assert that in interpreting the Act, the circumstances of this case necessitate that the court consider the integrity of the Crown, the

Nowegijick principle (Nowegijick v. The Queen, [1983] 1 S.C.R. 29, [1983] S.C.J. No. 5 (QL)), the protection of minorities, and the use of Hansard. Let me consider those assertions.

THE INTEGRITY OF THE CROWN

[520]In R. v. Badger, [1996] 1 S.C.R. 771, [1996] S.C.J. No. 39 (QL), Cory J. set forth four principles applicable to the interpretation of treaties and of statutes which have an impact upon treaty or aboriginal rights. As to the integrity or honour of the Crown, he wrote, at p. 794:

¶ 41 … Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of “sharp dealing” will be sanctioned.

[521]As I have found, we are not dealing with a treaty. However, Cory J.’s

comments apply to statutory provisions and so would apply to such provisions of the Act as would have an impact upon the aboriginal rights of the Métis to the extent such aboriginal rights existed or were impacted. In this case, the aboriginal right, if any, in issue is that of aboriginal title. However, in this case, there is no allegation against the Crown of sharp dealing or the appearance thereof.

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THE NOWEGIJICK PRINCIPLE

[522]Nowegijick, supra was a decision of the Supreme Court of Canada. The issue was whether Nowegijick, a registered Indian, could claim by virtue of the

Indian Act an exemption from income tax for the 1975 taxation year. The court found in favour of Nowegijick. Dickson J., for the court, wrote, at p. 36:

It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.

[523]And in Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119,

[1997] S.C.J. No. 50 (QL), Major J. wrote, at p. 153:

¶76 In interpreting statutes relating to Indians, ambiguities and

“doubtful expressions” should be resolved in favour of the Indians:

Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. As La Forest J. stated in Mitchell, “in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them”

(p. 143).

[524]While the foregoing is doubtless the law, one must view that law in context. While I have concluded that here there was no agreement or treaty, it is useful, in my view, to consider statements of the Supreme Court of Canada in other cases pertaining to Indians and relating largely to the interpretation of treaties, agreements incidental or supplemental to a treaty, or to statutes including the Indian Act itself.

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[525]R. v. Sioui, [1990] 1 S.C.R. 1025, [1990] S.C.J. No. 48 (QL) described the factors underlying the principle that the interpretation of a treaty must be given a just, broad and liberal construction. Lamer J. wrote, at p. 1036:

Finally, once a valid treaty is found to exist, that treaty must in turn be given a just, broad and liberal construction. This principle, for which there is ample precedent, was recently reaffirmed in Simon. The factors underlying this rule were eloquently stated in Jones v. Meehan, 175 U.S. 1 (1899), a judgment of the United States Supreme Court, and are I think just as relevant to questions involving the existence of a treaty and the capacity of the parties as they are to the interpretation of a treaty (at pp. 10-11):

In construing any treaty between the United States and an Indian tribe, it must always … be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of the words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.

[526]In Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at 142-43, [1990] S.C.J. No. 63 (QL), La Forest J., after acknowledging the “canons of construction generic to the interpretation of statutes relating to Indians” as set

out by Dickson J. in Nowegijick, wrote:

I note at the outset that I do not take issue with the principle that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. In the case of treaties, this principle finds its justification in the fact that the Crown enjoyed a superior bargaining position when negotiating treaties with native peoples. From the perspective of the Indians, treaties were drawn

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up in a foreign language, and incorporated references to legal concepts of a system of law with which Indians were unfamiliar. In the interpretation of these documents it is, therefore, only just that the courts attempt to construe various provisions as the Indians may be taken to have understood them.

But as I view the matter, somewhat different considerations must apply in the case of statutes relating to Indians. Whereas a treaty is the product of bargaining between two contracting parties, statutes relating to Indians are an expression of the will of Parliament. Given this fact, I do not find it particularly helpful to engage in speculation as to how Indians may be taken to understand a given provision. Rather, I think the approach must be to read the Act concerned with a view to elucidating what it was that Parliament wished to effect in enacting the particular section in question. This approach is not a jettisoning of the liberal interpretative method. As already stated, it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. …

At the same time, I do not accept that this salutary rule that statutory ambiguities must be resolved in favour of the Indians implies automatic acceptance of a given construction simply because it may be expected that the Indians would favour it over any other competing interpretation. It is also necessary to reconcile any given interpretation with the policies the Act seeks to promote.

[527]As well, in my view, Eastmain Band v. Canada (Federal Administrator) (C.A.), [1993] 1 F.C. 501, [1992] F.C.J. No. 1041 (QL), a decision of the Federal Court of Canada – Court of Appeal, is instructive. In

Eastmain, supra, one of the issues was what principles of interpretation should apply to the 1975 James Bay and Northern Quebec Agreement, a comprehensive land claim agreement between Quebec, Canada, Hydro-Quebec and the Cree and Inuit communities of Quebec. Décary J.A. wrote the following:

¶21 We must be careful, in construing a document … that we do not blindly follow the principles laid down by the Supreme Court in analyzing treaties entered into in an earlier era. The principle that ambiguities must be construed in favour of the Aboriginals rests, in the case of historic treaties, on the unique vulnerability of the Aboriginal parties, who

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were not educated and were compelled to negotiate with parties who had a superior bargaining position, in languages and with legal concepts which were foreign to them and without adequate representation.

¶22 In this case, there was simply no such vulnerability. … The comments of Lamer J., who was not yet Chief Justice, in Sioui provide a good illustration of this evolution:

The Indian people are today much better versed in the art of negotiation with public authorities than they were when the United States Supreme Court handed down its decision in Jones….

. . . . .

¶24 The Aboriginal parties contend that the principle of construing ambiguities favourably also applies when statutes relating to Indians are to be interpreted, and that the Agreement, by virtue of being adopted by the Parliament of Canada, is a statute relating to Indians.

¶25 This rule, which is set out in Nowegijick, supra, in which the issue was the interpretation of section 87 of the Indian Act … seems to me to have been substantially diluted by the Supreme Court in Mitchell,…

He then makes reference to the comments of La Forest J. in Mitchell, supra, to which I above referred.

[528]And, in R. v. Howard, [1994] 2 S.C.R. 299, [1994] S.C.J. No. 43 (QL), in reference to the interpretation of a treaty, Gonthier J., for the court, wrote, at pp. 306-7:

…The 1923 Treaty does not raise the same concerns as treaties signed in the more distant past or in more remote territories where one can legitimately question the understanding of the Indian parties.… The

1923 Treaty concerned lands in close proximity to the urbanized Ontario of the day. The Hiawatha signatories were businessmen, a civil servant and all were literate. In short, they were active participants of the economy and society of their province. The terms of the Treaty and specifically the basket clause are entirely clear and would have been understood by the seven signatories.

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[529]The foregoing statements are from cases involving Indians. To the extent they apply to dealings with Métis, particularly when placed in historical context, the Métis surely cannot be viewed in a more favourable or beneficial position than would be Indians.

[530]In this case, dealing with a statute, what we must determine is the will of Parliament and its purpose in enacting the legislation and any particular section thereof. While the negotiations here occurred 137 years ago, the Red River delegates, or at least Ritchot and Black, were literate, educated individuals

conversant with the language used, and in Black’s case, with the law.

[531]It appears that Ritchot was chosen because of his connection to the French community, Black, because of his connection to the English community, and Alfred Scott, because of his connection to the Americans living in the Settlement. They were neither aboriginals nor representatives of an aboriginal band or people per se. Rather, they were representatives of the Settlement and its residents.

[532]As well, while it is true that the majority of the residents of the Settlement were either English half-breeds or French Métis, the clear facts are as follows:

(1)By 1869, the Settlement had well developed legislative and judicial institutions. Legislative authority was exercised by the Council of Assiniboia, which from 1835 comprised community representatives, many of whom were Métis. There was a legal system in the

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Settlement which exercised both civil and criminal jurisdiction to which the Métis were subject. There were magistrates who dealt with minor matters. Métis persons in the community participated in the legal system as jurors, magistrates and at one time, in the case of Dr. John Bunn, Recorder (or Chief Judge) of the court.

(2)The Convention of 40 and the Provisional Government were made up of leaders of the Settlement, many of whom were successful in the commerce and social intercourse of the community and had been for some time. It was they who chose the delegates.

(3)Those community leaders had prepared three lists of rights, and a fourth had been provided to Ritchot setting forth the terms upon which the Settlement was prepared to enter Confederation. Many of the provisions in these lists of rights found their way into the Act.

(4)Ritchot’s diary and the report of his speech to the Legislative

Assembly of Assiniboia on June 24, 1870 record that in the course of the negotiations, he and his co-delegates consulted friends and even lawyers for advice.

[533]In short, the circumstances that underlie the legal principles as to the interpretation and application of treaties or agreements with, or statutes relating to, aboriginal people did not, on the evidence, exist here and any suggested

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application of the Nowegijick principle to the interpretation of the Act must be subject to that reality. In my view, the Nowegijick principle does not apply in the circumstances of this case.

PROTECTION OF MINORITIES

[534]In my view, neither section 31 nor section 32 of the Act, considered on an historical, contextual or purposive basis, pertained to or was intended for the protection of minorities.

[535]As I have already set forth in these reasons, assurances had been given to all of the residents of the Settlement in the period leading to the negotiations between the Red River delegates and Macdonald and Cartier that the residents would have their property rights secured to them.

[536]Section 32 followed upon those assurances. It was enacted for the purpose of quieting titles. It pertained to all residents of the Settlement who prior to 1870 owned, occupied or were in possession of land in the Settlement. It was included in the Act for the purpose of ensuring that those who held property interests in the Settlement prior to 1870, whether pursuant to titles conferred by the HBC, or with the concurrence of the HBC, or otherwise, would be assured of their land in the new province in the face of anticipated immigration.

[537]While there can be no question that, by reason of the population mix in the Settlement, it was known that English half-breeds or French Métis would

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benefit under the section, neither were minorities at the time. With the role which, in the circumstances, the delegates would have expected to be fulfilled by the new provincial Legislature (a body which would likely be as it was for many years controlled by the Métis) I infer that the delegates and those they represented anticipated that the provisions of section 32 would be implemented with reasonable dispatch.

[538]The section provides for a one-time individual grant in favour of those who had been and at the time of the transfer were landholders within the Settlement. There is no evidence to support any suggestion nor can any fair reading of this section suggest that it was intended to create a continuing obligation for future grants to future generations.

[539]As regards section 31, it is clear from the third and fourth lists of rights that the delegates and their principals intended that the province would control the public lands. And, as already stated, the English half-breeds and the French Métis were then a substantial majority in the Settlement and would be in the new province.

[540]There is no evidence that the Métis considered themselves to be a minority in the Settlement at the time leading to passage of the Act and it would be counter-intuitive to think that they would.

[541]While it was expected that immigration could soon change that, and it did, it could not have been expected to change immediately. In fact, the Legislature

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of the new province was controlled until probably 1876 or later by members who were Métis, or members sympathetic to them.

[542]It would have been clear to the delegates and to the leaders of the Settlement that if the province controlled the undisposed public lands, as they were seeking, they would be able generally to do with it what they wished.

[543]After it became apparent that Canada would not agree to allow the province to own the public lands but would itself retain ownership of it, the issue

of a children’s grant first arose.

[544]In my view, the evidence establishes that this grant, to be given on an individual basis for the benefit of the families, albeit given to the children, was given for the purpose of recognizing the role of the Métis in the Settlement both past and to the then present, for the purpose of attempting to ensure the

harmonious entry of the territory into Confederation, mindful of both Britain’s condition as to treatment of the settlers and the uncertain state of affairs then existing in the Settlement, and for the purpose of giving the children of the Métis and their families on a onetime basis an advantage in the life of the new province over expected immigrants.

[545]The language of section 31 read as part of the scheme of the Act in the context of the overall circumstances at the time was clearly that of a one-time grant in favour of those children of the half-breed heads of families who were resident in the Settlement at the time of transfer.

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[546]As with section 32, there is no evidence to support any suggestion nor can any fair reading of this section suggest that it was intended to create a continuing obligation for future grants to future generations.

[547]Nor is it plausible to consider this section as intended to protect the French Métis as a minority. The delegates were negotiating on behalf of all residents of the Settlement. And the children entitled to share in the grant under section 31 were not just the children of the French Métis, but the children of the English half-breeds as well.

[548]As well, the evidence does not support the existence of any purpose or intent on the part of Parliament to create or establish by virtue of section 31 of the Act, a Métis enclave or land base, or to ensure the flourishing of a Métis community in Manitoba then, or for the future.

[549]Sections 31 and 32 clearly did not provide rights like denominational school rights or language rights which carry an ongoing and continuing obligation for future generations. Said sections were not, in my view, intended by Parliament as minority rights provisions.

[550]Moreover, even if it were otherwise and the principle of interpretation regarding protection of minorities applied, which I have found was not the case, how would that assist in interpreting the two sections which clearly do not create continuing obligations, but provide for one-time grants which in substance were fulfilled?

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USE OF HANSARD

[551]Clearly, the Hansard reports of parliamentary debates are admissible to assist in interpreting the meaning of constitutional provisions. But, while

Hansard may be used to assist in the interpretation of the words of a constitutional document, it cannot be used to add words or to change the natural meaning of words.

[552]As well, the law is clear that in making use of Hansard to assist in interpreting the meaning of a constitutional provision, the court must be mindful as to the weight which can be given to the Hansard Debates. This was made clear in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73 (QL), and Mahe v. Alberta, [1990] 1 S.C.R. 342, [1990] S.C.J. No. 19 (QL).

[553]In Re B.C. Motor Vehicle Act, supra, Lamer J., at pp. 508-9, wrote:

If speeches and declarations by prominent figures are inherently unreliable (per McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319) and “speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight” (per Dickson J. in the reference Re: Residential Tenancies Act 1979, supra, at p. 721), the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.

Moreover, the simple fact remains that the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants can in any way be determinative?

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Were this Court to accord any significant weight to this testimony, it would in effect be assuming a fact which is nearly impossible of proof, i.e., the intention of the legislative bodies which adopted the Charter. In view of the indeterminate nature of the data, it would in my view be erroneous to give these materials anything but minimal weight.

[554]This caution was echoed by the Supreme Court of Canada in Mahe, supra. That case was a minority language rights case in which section 23 of the

Charter was engaged.

[555]At p. 369 of the court’s unanimous decision, Dickson C.J. wrote:

The second argument, which was advanced by the respondent, is that s. 23 should be interpreted in light of the legislative debates leading up to its introduction. This Court has stated that such debates may be admitted as evidence, but it has also consistently taken the view that they are of minimal relevance (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 506-7). In this case, the evidence from the legislative debates contributes little to the task of interpreting s. 23 and, accordingly, I place no weight upon it.

[556]The plaintiffs purport to place much weight on the language of Macdonald and Cartier during the parliamentary debates respecting the introduction and passage of the Act. While the law is that their speeches are admissible, the court must remember that they do not reflect the will of Parliament or the will of Cabinet. While they are helpful in providing historical context, consistent with judicial dicta they should not be given much weight in interpreting the meaning of the Act or any of its sections.

THE MANITOBA ACT – SECTION 31

[557]It is essential to remember that the Act must be looked at from the perspective of Parliament, not from the perspective of the Métis, the Convention of 40, the Provisional Government or the Red River delegates, or Macdonald and

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Cartier. While we must look at the evidence which reflects that which was said or done by those various parties so as to put matters into historical context and give purpose to that which Parliament did, ultimately the exercise is to determine, in the manner previously discussed herein, the intent of Parliament in passing the Act, including section 31.

[558]In summary, the plaintiffs assert that Canada, through Macdonald and Cartier, who were the senior members of the Federal Government at the time, negotiated a treaty or an agreement with the Red River delegates, or at the very least made representations to them, for the purpose of effecting the entry of

Rupert’s Land into Canada as the Province of Manitoba. The plaintiffs assert that in so doing, Canada was dealing with aboriginals, the Métis, who enjoyed aboriginal title. They argue that while there was no surrender of the subject land to the Crown as exists in the Indian cases, there was an extinguishment by statute which was recognized by section 31 of the Act. They assert that in providing for land grants to the children of the half-breeds, Canada intended to recognize this extinguishment of aboriginal title and to ensure the continuance of a land base for the Métis in Manitoba.

[559]The plaintiffs also say that because the Métis were aboriginal and had enjoyed aboriginal title, which was extinguished by statute, the Crown was in a fiduciary relationship with the Métis children and owed them a fiduciary obligation in respect of the land grant. As well, the plaintiffs argue that the

honour of the Crown was implicated in respect of Canada’s implementation or

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administration of the land grants scheme. For several reasons, the plaintiffs assert that Canada was in breach of both its fiduciary obligation and what the plaintiffs assert was the independent obligation of honour of the Crown.

[560] Canada, on the other hand, concurred in by Manitoba, asserts that the Act was simply an Act of nation building. Canada and Manitoba argue that the Métis did not enjoy Indian or aboriginal title and that the land grant was simply a recognition of the fact that the Métis had been early settlers in Rupert’s Land and in the Settlement and had made significant contributions to it. They assert that the land grant was merely an attempt by Canada to give the Métis children a head start which would permit them, if they wished, the opportunity of settling in the new province. Canada says that there was no fiduciary relationship between Canada and the Métis children entitled to the grant, that there was no fiduciary obligation owed to them in respect of the land, and that the honour of the Crown was not implicated.

[561]It is important, in my view, to understand the status of the Métis in the Settlement as at July 15, 1870, the effective date of the Act. Did the Métis have aboriginal title? Were the Métis Indians? Did a fiduciary relationship exist between the Crown and the Métis? Was the honour of the Crown implicated in

Canada’s dealings with the Métis leading to passage of the Act?

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ABORIGINAL TITLE

[562]In R. v. Van der Peet, [1996] 2 S.C.R. 507 at 540, [1996] S.C.J. No. 77 (QL), Lamer C.J., for the majority, wrote:

¶33 … Aboriginal title is the aspect of aboriginal rights related specifically to aboriginal claims to land; it is the way in which the common law recognizes aboriginal land rights. … Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying “the land as their forefathers had done for centuries”….

[563]In recent years, the Supreme Court of Canada has expounded the law of aboriginal title. This has occurred through a number of cases but, in my view,

Guerin v. The Queen, [1984] 2 S.C.R. 335, [1984] S.C.J. No. 45 (QL), Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, [1997] S.C.J. No. 108 (QL), and R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, are sufficient to give one a clear understanding of aboriginal title and its essential ingredients or dimensions.

[564] In Guerin, supra, Dickson J., at p. 376, wrote:

In Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, this Court recognized aboriginal title as a legal right derived from the Indians’ historic occupation and possession of their tribal lands.

[565] Dickson J. distinguished cases involving aboriginal title from what had previously been looked upon as “political trust” decisions. He found the latter inapplicable to Guerin and wrote, at p. 379:

…The “political trust” cases concerned essentially the distribution of public funds or other property held by the government. In each case the party claiming to be beneficiary under a trust depended entirely on statute, ordinance or treaty as the basis for its claim to an interest in the funds in question. The situation of the Indians is entirely different. Their

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interest in their lands is a pre-existing legal right not created by Royal Proclamation (the Royal Proclamation of 1763), by s. 18(1) of the Indian Act, or by any other executive order or legislative provision.

And he went on:

It does not matter, in my opinion, that the present case is concerned with the interest of an Indian Band in a reserve rather than with unrecognized aboriginal title in traditional tribal lands. The Indian interest in the land is the same in both cases….

And, at p. 382, he wrote:

Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown’s original purpose in declaring the Indians’ interest to be inalienable otherwise than to the Crown was to facilitate the Crown’s ability to represent the Indians in dealings with third

parties. The nature of the Indians’ interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.

[566] In Delgamuukw, supra, Lamer C.J., for the majority, wrote, at p. 1080:

¶111 … Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. …

He then outlined the dimensions of aboriginal title as follows, at pp. 1081-83:

¶113 The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. One dimension is its inalienability. Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is [sic] inalienable to third parties….

¶114 Another dimension of aboriginal title is its source. … it is now clear that although aboriginal title was recognized by the Proclamation

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[the Royal Proclamation of 1763], it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law…. Thus, in Guerin, supra, Dickson J. described

aboriginal title, at p. 376, as a “legal right derived from the Indians’ historic occupation and possession of their tribal lands”. What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward….

¶115 A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.

Further, he wrote, at pp. 1090, 1097, and 1102-3:

¶129 It is for this reason also that lands held by virtue of aboriginal title may not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.

. . . . .

¶142 … the time for the identification of aboriginal title is the time at which the Crown asserted sovereignty over the land.

¶143 In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

¶144 … [T]o establish a claim to aboriginal title, the aboriginal group asserting the claim must establish that it occupied the lands in question at the time at which the Crown asserted sovereignty over the land subject to the title.

. . . . .

¶152 … Conclusive evidence of pre-sovereignty occupation may be difficult to come by. Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation in support of a claim to aboriginal title. What is required, in addition, is a

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continuity between present and pre-sovereignty occupation, because the relevant time for the determination of aboriginal title is at the time before sovereignty.

[underlining in original]

[567]Addressing the issue of exclusivity of occupation, he wrote, at p. 1104:

¶155 Finally, at sovereignty, occupation must have been exclusive. The requirement for exclusivity flows from the definition of aboriginal title itself, because I have defined aboriginal title in terms of the right to exclusive use and occupation of land. Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title. … Were it possible to prove title without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one aboriginal nation to have aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it.

[568]But the issue of exclusive occupancy must be considered in the context of the realities of aboriginal society. Lamer C.J. wrote, at p. 1104:

¶156 … Exclusivity is a common law principle derived from the notion of

fee simple ownership and should be imported into the concept of aboriginal title with caution. As such, the test required to establish exclusive occupation must take into account the context of the aboriginal society at the time of sovereignty. For example, it is important to note that exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands. Under those circumstances, exclusivity would be demonstrated by “the intention and capacity to retain exclusive control”….

He then discussed the possibility of joint title as follows, at pp. 1105-6:

¶158 … the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity. The meaning of shared exclusivity is well-known to the common law. Exclusive possession is the right to exclude others. Shared exclusive possession is the right to exclude others except those with whom possession is shared.

[569]In Marshall; Bernard, supra, the Supreme Court of Canada considered further the principles enunciated in Delgamuukw. In her reasons, McLachlin C.J. wrote, at p. 241:

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¶40 These principles were canvassed at length in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, which enunciated a test for aboriginal title based on exclusive occupation at the time of British sovereignty. Many of the details of how this principle applies to particular circumstances remain to be fully developed. In the cases now before us, issues arise as to the standard of occupation required to prove title, including the related issues of exclusivity of occupation, application of this requirement to nomadic peoples, and continuity.

[570]In a discussion of the range of aboriginal rights, McLachlin C.J. wrote, at pp. 245-46:

¶54 One of these rights is aboriginal title to land. It is established by aboriginal practices that indicate possession similar to that associated with title at common law. In matching common law property rules to aboriginal practice, we must be sensitive to the context-specific nature of common law title, as well as the aboriginal perspective. The common law recognizes that possession sufficient to ground title is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which the land is commonly enjoyed… The common law also recognizes that a person with adequate possession for title may choose to use it intermittently or sporadically…. Finally, the common law recognizes that exclusivity does not preclude consensual arrangements that recognize shared title to the same parcel of land.

[571]McLachlin C.J. then went on to discuss one of the three specific requirements for title set out in Delgamuukw, namely, that claimants must

prove “exclusive” pre-sovereignty “occupation” of the land by their forebears. While Marshall; Bernard provides insight as to the appropriate application of the “exclusive pre-sovereignty occupation” dimension required to prove aboriginal title, it certainly does not suggest that the three criteria or dimensions enunciated by Delgamuukw are incorrect or inapplicable.

[572]Guerin, Delgamuukw and Marshall; Bernard established and/or confirmed that one of the critical criteria for the establishment of aboriginal title

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is that the land in question was in exclusive occupation of the claimant before the assertion of British sovereignty.

[573]In my view, however, Powley, supra, has probably changed the time for identification of aboriginal title as regards Métis.

[574]I say “has probably changed” because Powley was a case which dealt with the issue of aboriginal hunting rights of Métis, not with the issue of aboriginal title.

[575]In Powley, the Supreme Court reasoned that Métis being the product of an aboriginal person and a European, the time for identification of aboriginal rights as the time at which the Crown asserted sovereignty over the land would make it impossible or nearly so for the Métis to enjoy aboriginal rights.

[576]The Court in Powley wrote, at paras. 14, 16, 17 and 18:

¶14 For the reasons elaborated below, we uphold the basic elements of the Van der Peet test … and apply these to the respondents’ claim.

However, we modify certain elements of the pre-contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis claims.

¶16 The emphasis on prior occupation as the primary justification for the special protection accorded aboriginal rights led the majority in Van der Peet to endorse a pre-contact test for identifying which customs, practices or traditions were integral to a particular aboriginal culture, and therefore entitled to constitutional protection. However, the majority recognized that the pre-contact test might prove inadequate to capture the range of Métis customs, practices or traditions that are entitled to protection, since Métis cultures by definition post-date European contact.

….

¶17 …. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. ….

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¶ 18 With this in mind, we proceed to the issue of the correct test to determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982. The appropriate test must then be applied to the findings of fact of the trial judge. We accept Van der Peet as the template for this discussion. However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims. Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their aboriginal rights.

[577]For the purposes of this case, therefore, I look at the time for

identification of aboriginal title in the plaintiffs’ Métis ancestors, not as the time at which the Crown asserted sovereignty over the land in question, but as at the time of first imposition of British control over the land.

[578]But the other criteria or dimensions essential to a finding of aboriginal title remain unchanged.

[579]History of the exploration of the fur trade in the area which ultimately became Manitoba involved both France and Britain.

[580]In 1670, Britain made its extensive land grant to the HBC and from that date, in my view, Britain exercised control through the HBC in those areas where the grant pertained and beyond that after 1763. There was no argument before me as to the precise area covered by the 1670 grant. Thus, it is unclear to me the extent to which that grant covered the lands which in 1870 became Manitoba. However, after 1763, Britain gained sovereignty over all of Canada,

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which would have included the area not covered by the grant, if any, but which ultimately became Manitoba.

[581]Indeed, in 1811, when the Red River Settlement originated, it did so as the result of a large land grant from the HBC to Lord Selkirk which could not have been done had Britain not enjoyed sovereignty over the land and exercised control of it through the activities of the HBC.

[582]Powley makes very clear the need for precision in evidence from aboriginals, in that case Métis, to establish in a court of law, proof of an aboriginal right claimed.

[583]In this case, however, there is little evidence as to the status of the ancestors of the plaintiffs at the commencement of British control in the area which ultimately became Manitoba.

[584]In one of his early reports as Lieutenant Governor of Manitoba, Adams

Archibald (“Archibald”), on December 27, 1870,195 in expressing his concern specifically as to the meaning of the phrase “Indian title” in section 31 of the Act, provided some history, without attribution to any source, as to the early inhabitants of the area. He wrote:

It is difficult to understand exactly what several expressions in this clause mean.

The title recognized as Indian, is the title of the natives who have made any particular portion of the Country their home. Each tribe is divided into families, and each family considers as its own, in a certain sense of

195Exhibit 1-0547

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exclusiveness, though not in the absolute sense we attach to ownership, the particular parts of the Country, where the family lives, and hunts, and roams.

Now, as regards the Province of Manitoba, that was originally in the possession of some tribes of Crees, till shortly before the arrival of the English settlers, when they either abandoned their homes in search of a more Western Country or were driven out by the Saulteaux who pressed upon them from the east, and whose original home is the Country lying between this and Lake Superior. Some few Crees remained; some Indians, assuming to be Cree Chiefs, uniting with others assuming to be Saulteaux Chiefs, concurred in the deed to the Earl of Selkirk referred to in a previous dispatch [the treaty of 1817].

The Indian rights, whatever they may be, belong to families of these two tribes. But many of the Half-breed inhabitants of Red River are not descended from any family or tribe of either Crees or Saulteaux.

The half-breed population of this Province is largely from beyond the Province. White men who have lived in the most remote parts of this Continent, and have formed connexions with Indian women of the interior, as they advance in years remove to Red River, and there is not probably a tribe of natives between this and the Rocky Mountains, or between this and the North Pole, or between this and the coast of Hudson’s Bay or Labrador, which is not to some extent represented in the Half-breeds of Red River.

[585]Aside from the specific issue of time of identification, another aspect of the first criterion for establishment of aboriginal title is the necessity for exclusive occupation, albeit that joint title could exist from shared exclusivity.

[586]In 1817, Lord Selkirk entered into a treaty whereby Indian title was extinguished in that land which became known as the Settlement Belt. And shortly after Manitoba entered Confederation, Treaty Nos. 1 and 2 were executed to extinguish Indian title to the land beyond the Settlement Belt.

[587]There is no evidence of any objection by the Métis on either occasion suggesting that they, not the Indians, held aboriginal title over that land.

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[588]As well, there is no evidence to establish, let alone even suggest, that the Métis held aboriginal title to the land jointly with the Indians, which on the evidence that was provided would have been highly unlikely, if not impossible.

[589]On the evidence, the plaintiffs have not proved the existence of the first of the three criteria necessary for the establishment of aboriginal title, even allowing for modification consistent with Powley.

[590]As well, it is clear on the evidence that the Métis did not meet the other two criteria required for aboriginal title as enunciated in Delgamuukw. They did not hold land communally but individually and they were not believers or practitioners of the principle of non-alienability of their land.

[591]The Métis did not occupy land communally as at 1870 or prior thereto. While for the most part they lived together more or less in contiguity to one another in parishes which were laid out on the basis of language and religion, they did so as individuals and not in any communal sense.

[592]As well, many Métis in the territory owned land individually and bought from and sold land to other Métis and non-Métis. Some held title to land from the HBC which was land either within the land of the Taylor Survey or was land surveyed by themselves. Some occupied land as squatters within the Settlement Belt or without, but on an individual basis.

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[593]Simply put, based upon the evidence, the Métis did not come within any of the three criteria or dimensions enunciated in Delgamuukw, and as modified by Powley, which are necessary for enjoyment of aboriginal title.

[594]Applying the law to the historical facts, I conclude that the Métis of the Settlement, including their children to whom the section 31 grants were to be made, did not hold at July 15, 1870, or at anytime prior, aboriginal title to the lands which were to become Manitoba and serve as the source for the section 31 grants.

WERE THE MÉTIS OF MANITOBA, INDIANS?

[595]The language in section 31 of the Act as to the extinguishment of the Indian title to the lands in the Province and the appropriation of a portion of such

ungranted lands pertained to the children’s grant. Having found that the Métis did not hold Indian, or aboriginal, title, I will address the issue whether they were Indians.

[596]I note that in Blais, supra, the Supreme Court of Canada decided as had the Manitoba courts that the Manitoba Métis were not Indians.

[597]In Blais, the issue before the Supreme Court, as described by the court,

was “whether ‘Indians’ in para. 13 of the Natural Resources Transfer Act include the Métis”. The determination in point of time was as of 1930 when the Natural Resources Transfer Act was enacted and in respect of that Act, not 1870 when the Act was passed nor in respect of the Act. Nevertheless, the comments of

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the court are informative, and in my view, corroborative of my conclusions on the evidence before me in this case.

[598]Moreover, while the interpretative issue in Blais was different than exists here, as I have indicated, the reasoning of the Supreme Court was based upon essentially the same evidence before me in this case and in reference to the same argument as now advanced by the plaintiffs and to the same provision, section 31 of the Act.

[599]The court wrote, at pp. 247-51:

¶ 20 The courts below found, and the record confirms, that the Manitoba Métis were not considered wards of the Crown. This was true both from the perspective of the Crown, and from the perspective of the Métis. Wright J. summarized his findings on this point as follows, at paras. 18-19:

The nature of the negotiations in the 1920's, as reflected in correspondence and other evidence introduced at the trial of the appellant, shows that protection was the fundamental concern of the federal authorities, being consistent with the Crown's obligations to those who automatically or voluntarily became subject to, or beneficiaries of, the Indian Act.

Nowhere is there any suggestion [that] the Metis, as a people, sought or were regarded as being in need of this kind of protection. On the contrary, the evidence demonstrates the Metis to be independent and proud of their identity separate and apart from the Indians.

¶21 The difference between Indians and Métis appears to have been widely recognized and understood by the mid-19th century. In 1870, Manitoba had a settled population of 12,228 inhabitants, almost 10,000 of whom were either English Métis or French Métis. Government actors and the Métis themselves viewed the Indians as a separate group with different historical entitlements; in fact, many if not most of the members of the Manitoba government at the time of its entry into Confederation were themselves Métis.

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¶22 The Manitoba Act, 1870 used the term "half-breed" to refer to the Métis, and set aside land specifically for their use: Manitoba Act, 1870, S.C. 1870, c. 3 s. 31 (reprinted in R.S.C. 1985. App. II, No. 8). While s. 31 states that this land is being set aside "towards the extinguishment of the Indian Title to the lands in the Province", this was expressly recognized at the time as being an inaccurate description. Sir John A. Macdonald explained in 1885:

Whether they [the Métis] had any right to those lands or not was not so much the question as it was a question of policy to make an arrangement with the inhabitants of the Province . . .

1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, for the half- breeds did not allow themselves to be Indians.

(House of Commons Debates, July 6, 1885, at p. 3113, cited in T.E. Flanagan, "The History of Metis Aboriginal Rights: Politics, Principle, and Policy" (1990), 5 C.J.L.S. 71, at p. 74)

¶23 Other evidence in the record corroborates this view. For example, at trial, the expert witness Dr. G. Ens attached to his report a book written by Lieutenant-Governor A. Morris entitled The Treaties of Canada with the Indians of Manitoba and the North-West Territories, published in 1880. The book includes an account of negotiations between the Governor and an Indian Chief who expresses the concern that his mixed- blood offspring might not benefit from the proposed treaty. The Governor explains, at p. 69: "I am sent here to treat with the Indians. In Red River, where I came from, and where there is a great body of Half- breeds, they must be either white or Indian. If Indians, they get treaty money; if the Half-breeds call themselves white, they get land." This statement supports the view that Indians and Métis were widely understood as distinct groups for the purpose of determining their entitlements vis-à-vis the colonial administration.

¶24 It could be argued that the ability of individual Métis to identify themselves with Indian bands and to claim treaty rights on this basis weighs against a view of the two groups as entirely distinct. However, the very fact that a Métis person could "choose" either an Indian or a white identity supports the view that a Métis person was not considered Indian in the absence of an individual act of voluntary association.

¶25 The Canadian government's response to an 1877 petition from a group of Métis further illustrates the perceived difference between the Indians and the Métis, and the exclusion of the Métis from the purview of Indian treaties. The Métis petitioners requested a grant of farming implements and seeds, and the relaxed enforcement of game laws to enable them to recover economically from the smallpox epidemic of 1870.

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David Laird, the Lieutenant-Governor of the North-West Territories, responded to the petition. He concluded by declaring:

I can assure you that the Government feel[s] a kindly interest in your welfare, and it is because they desire to see you enjoying the full franchise and property rights of British subjects, and not laboring under the Indian state of pupilage, that they have deemed it for the advantage of half-breeds themselves that they should not be admitted to the Indian treaties.

(W.L. Morton, ed., Manitoba: The Birth of a Province (1984), vol. I, at p. 23)

Without commenting on the motivations underlying the government's policy or on its ultimate wisdom, we take note of the clear distinction made between Indians and "half-breeds", and the fundamentally different perception of the government's relationship with and obligations towards these two groups. We also note that counsel for the intervener, the Métis National Council, told the Court of Appeal: "the Métis want to be 'Indian' under the NRTA, but for no other purpose" (para. 75).

. . . . .

¶28 The Red River Métis distinguished themselves from the Indians. For example, the successive Lists of Rights prepared by Métis leaders at the time of the creation of the Province of Manitoba excluded "the Indians" from voting. This provision could not plausibly have been intended to disenfranchise the Métis, who were the authors of the Lists and the majority of the population. The Third and Fourth Lists of Rights emphasized the importance of concluding treaties "between Canada and the different Indian tribes of the Province", with the "advice and cooperation of the Local Legislature" (appellant's record, at pp. 272 and 275). The Local Legislature was, at that time, a Métis-dominated body, underscoring the Métis' own view of themselves and the Indians as fundamentally distinct.

¶29 There might not have been absolute consistency in the use of the terms "Indian" and "half-breed", and there appears to have been some mobility between the two groups. However, as evidenced by the historical documents statement cited above, the prevailing trend was to identify two distinct groups and to differentiate between their respective entitlements. Dr. Ens indicated in his report: "By 1850 'Half-Breed' was the most frequently used term among English-speaking residents of the North West to refer to all persons of mixed ancestry. It was a term that clearly differentiated between Indian and Metis populations"….

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[600]Placed in historic context, the evidence in this case is overwhelming that the Métis were not Indians. They did not consider themselves to be Indians. They saw themselves, and wanted to be seen, as civilized and fully enfranchised citizens. So, too, did the entire Settlement see them that way. This is abundantly evident from, amongst other things, the role the Métis had played in the governance and commerce of the Settlement for many years prior to 1870, as well as from their role in the Convention of 24, the Convention of 40, the Provisional Government, and following July 15, 1870, in the Legislature of Manitoba. It is also evident from the debates of the Convention of 40 and the contents of the four lists of rights.

[601]The evidence clearly establishes that the entire Settlement, including the Métis, viewed the Indians as being inferior, being in need of care or guardianship and being incapable or unfit for enfranchisement and the enjoyment of the rights of full citizens.

[602]Between December 1, 1869 and March 24, 1870, when the Red River delegates left for Ottawa, four lists of rights had been prepared. The first was by the Convention of 24,196 the second by the Convention of 40,197 the third by the Convention of 40 or the Provisional Government,198 and the fourth was a list, the origin of which is unknown but which was carried by Ritchot alone.199

196Exhibit 1-0344

197Exhibit 1-0394

198Exhibit 1-0422

199Exhibit 1-0431

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[603]In the first list, clause 12 provided:

That treaties be concluded and ratified between the Dominion government and the several tribes of Indians in the territory to ensure peace on the frontier.

[604]The second list contained a similar provision and, as well, clause 18 which provided, in part:

That every man in this country (except uncivilized and unsettled Indians) who has attained the age of 21 years … shall have the right to vote….

[605]The third and fourth lists contained similar provisions, both as to the making of treaties with the Indians and as to restriction of the Indians from voting. In fact, clause 9 on the fourth list of rights read, in part:

9.That in this province, with the exception of the Indians who are neither civilized, nor settled, every man … be entitled to vote….

[606]In The New Nation publication of the Debates of the Convention of 40, there is a record of a debate which took place on February 1, 1870, and which, in particular, related to clause 15 of a proposed list of rights which provided:200

15.That treaties be concluded between the Dominion and the several Indian tribes of the country.

[607]The following debate was reported:

Mr. Bunn suggest that the words, “as soon as possible” be added to the article.

Mr. Ross suggested the further addition of the words, “with the view of satisfying them with regard to their claim to the lands of the country.”

Mr. Ross went on to show that this matter of treating with the Indians was held by the Imperial Government to be one of grave importance and as such they had pressed it strongly on the Canadian Government, Earl

Granville says, “I am convinced your Government will not forget the care due to those who will soon become exposed to new dangers – who will be in the progress of civilisation deprived of lands which they have been accustomed to enjoy as their own home and shut up in resorts other that

200Exhibit 1-0386, pages 40 and 41

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those they have been accustomed to. These are things he says which did not escape my observation which dealing with the Canadian delegates and the Hudson Bay Company. I am convinced that the old inhabitants of the country will be treated with all the solicitude and respect doe to them in order to prove to them the friendly sentiments with which they are regarded by their new governors.”

Mr. Riel, in French, as interpreted by Mr. Ross, asked – Had the Indians the whole claim to the country? Here we ask the Canadian Government to settle with the Indians; and I would ask for the consideration of the Convention without pronouncing an opinion – whether we ought to allow the question to pass in that shape. Are Indians the only parties in the country who have to be settled with for land claims? If so, all right. But if there is some section for which the Half-breeds would have to be dealt with then the article as it stood was too general. I have heard of Half- breeds having maintained a position of superiority and conquest against the incursions of Indians in some parts of the country. If so, this might possibly be considered to establish the rights of the half-breeds as against the Indians. But I merely suggest this for consideration. The article, I presume refers to a settlement with the Indians of the whole Territory; and let me ask, is not that too liberal?

Mr. Flett, in French, asked where these fights had taken place between the Half-breeds and Indians. Was it in British or American Territory?

Mr. Poitras (French) – For the most part, I presume in American Territory (hear, hear).

Mr. Flett – For my part, I am a Half-breed but far be it from me to press any land claims I might have as against the poor Indian of the country (hear, hear). Let the Indian claims be what they may, they will not detract from our just claims. We have taken the position and ask the rights of civilized men. As to the poor Indian, let him by all means have all he can get. He needs it and if our assistance still aid him in getting it, let us cheerfully give it (cheers).

Mr. Poitras – It is true that the fights alluded to took place on American Territory, but had they not taken place there, these Indian hostilities must have taken place on our soil. For my part, I have no wish to deprive the Indian of advantages (cheers).

Mr. Ross – As a Half-breed of this country, I am naturally very anxious to get all rights that properly belong to Half-breeds. I can easily understand that we can secure a certain kind of right by placing ourselves on the same footing as Indians. But in that case, we must decide on giving up our rights as civilized men. The fact is we must take one side or the other – we must either be Indians and claim the privileges of Indians – certain reserves of land and [illegible] compensation of blankets, powder

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and tobacco (laughter) or else, we must take the position of civilized men and claim rights accordingly. We cannot expect to enjoy the rights and privileges of both the Indian and the white man. Considering the progress we have made and the position we occupy, we must claim the rights and privileges which civilized men in other countries claim.

Mr. Thibert – The rights put forward by Half-breeds need not necessarily be mixed up with those of Indians. It is quite possible that the two classes of rights can be separate and concurrent. My own idea is that reserves of land should be given the Half-breeds for their rights.

Mr. Riel (French) – The Half-breeds have certain rights which they claim by conquest. They are not to be confounded with Indian rights. Great Britain herself holds most of her possessions by right of conquest. In conclusion he moved that the article pass with the addition of the words, “as soon as possible.”

Rev. H. Cochrane seconded the motion which carried.

[608]This sentiment expressed by Ross, Poitras, Flett and Riel himself, drew clear distinction between the rights and treatment of Indians as compared with the rights of the half-breeds as civilized men and the differentiation of the two.

[609]The evidence overall makes clear that the Métis did not live in the Settlement in bands nor did they have one leader or a council of leaders. Rather, they lived in parishes based upon linguistic and religious affiliation, as individuals. They participated in the governance of the Settlement. Some held positions in the British style system of courts. Some owned lots individually and in many cases surveyed their lots and registered them in Register B, the HBC register. As well, they participated in the economy of the Settlement both as employers and as employees.

[610]The Métis were recorded in the census of the Settlement as separate from Indians. They clearly distinguished themselves from Indians as is evident both

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from the list of rights to which I have referred, the debates concerning the list of rights, and laws that were passed by the local Legislature after July 15, 1870, which were highly restrictive of Indians.

[611]And, on June 24, 1870, when Ritchot reported to the Provisional Government, following passage of the Act and his return from Ottawa, he

responded clearly that the Métis were not Indians. He was asked specifically “as to whether half-breeds taking these reserves are to be held as minors, as under the Confederation Act” and he responded, “No.” This reference to “minors” is not a reference to age but rather at the time was taken as meaning “Indians” and subject to the disabilities imposed upon Indians.

[612]In his letter of January 3, 1870,201 Macdonald, in instructing Smith as to what he might tell the people of Red River concerning the rights which Canada would concede, wrote:

The Indian claims, including the claims of the Half-breeds who live with and as Indians, will be equitably settled.

That is, Macdonald clearly recognized the difference between the Métis and the Indians included with whom were half-breeds who lived with and as Indians.

[613]Comments made by a number of members of Parliament in the Hansard Debates relative to the Act made clear that they viewed the Métis as other than Indians.

201Exhibit 1-0372

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[614]Indians were considered to be in a state of pupillage. Not so the Métis. Indians were not enfranchised, were not able to own property individually and were not treated as citizens of the community. Not so the Métis.

[615]Relative to the standards of the day, the Métis were not and did not view themselves as a vulnerable people by reason of their aboriginality or otherwise. Nor did Canada so view or treat them.

[616]In my view, the Supreme Court in Blais decided that the Métis were not Indians under section 31 of the Act. In any event, that is my conclusion based upon what I consider to be overwhelming evidence in the case to that effect.

FIDUCIARY DUTY

[617]Having found that the Métis of Rupert’s Land did not hold aboriginal title and were not Indians, I turn to consider whether there was a fiduciary relationship between Canada and the Métis and a resulting fiduciary duty, with

respect to the children’s land grant provided for in section 31 of the Act.

[618]The Métis are an aboriginal people under section 35 of the Constitution Act, 1982. But, as Lamer C.J. wrote in Delgamuukw, at p. 1091:

¶133 … On a plain reading … s. 35(1) did not create aboriginal rights; rather, it accorded constitutional status to those rights which were

“existing” in 1982.

[619]While there are many judicial authorities which have found a fiduciary relationship between the Crown and aboriginals and a fiduciary duty owing by the Crown to aboriginals in respect of many issues, including that of aboriginal

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title, it does not necessarily follow that there was in this case a fiduciary relationship between the Métis and Canada or a fiduciary obligation or duty owed by Canada to the Métis in respect of the land which became the source of the section 31 grants.

[620]To my knowledge, all of the decided cases which deal with aboriginal title to land and the creation of a fiduciary duty or obligation owing from the Crown to aboriginals in that context have been cases involving Indians where either aboriginal title was found to exist or its existence was not in dispute.

[621]In Van der Peet, supra, Lamer C.J., for the majority, wrote, at p. 558:

¶67 Although s. 35 includes the Métis within its definition of

“aboriginal peoples of Canada”, and thus seems to link their claims to those of other aboriginal peoples under the general heading of “aboriginal rights”, the history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal peoples in Canada. As such, the manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined. At the time when this Court is presented with a Métis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Métis claim, be able to explore the question of the purposes underlying s. 35’s protection of the aboriginal rights of

Métis people, and answer the question of the kinds of claims which fall within s. 35(1)’s scope when the claimants are Métis.

[622]That statement should not be forgotten. This case is very much one of first impression. It involves Métis, not Indians, who as I have found did not at the material time (July 15, 1870 or prior thereto) enjoy aboriginal title to the land in question.

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[623]To decide whether in the circumstances of this case a fiduciary relationship existed between Canada and the Métis or whether a fiduciary duty was owed by Canada to the Métis requires some analysis of the underlying legal principles and their application to the historical facts as they existed at the time.

[624]In Guerin, Dickson J. wrote, at p. 376:

The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act. The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians.

[625]In Kruger v. The Queen, [1986] 1 F.C. 3 (C.A.), [1985] F.C.J. No. 167 (QL), Urie J., with whom Stone J. concurred, made reference at pp. 46 and 47 to the judgment of Dickson J. in Guerin. At pp. 47 and 48, he wrote:

It should be noted that in the above passages from his judgment, Dickson J. says that “The surrender requirement … [is] the source of a distinct fiduciary obligation”, that the interest of the Indians “gives rise upon surrender to a distinctive fiduciary obligation” and that “the Crown is under an obligation to deal with the land on the Indians’ behalf when the interest is surrendered (emphasis added)”. At p. 383 he stated “In the present appeal its [the fiduciary obligation] relevance is based on the requirement of a “surrender” before Indian land can be alienated” (emphasis added). Lastly, at page 385, Mr. Justice Dickson said, “When, as here, an Indian Band surrenders its interest to the Crown, a fiduciary obligation takes hold to regulate the manner in which the Crown exercises its discretion in dealing with the land on the Indians’ behalf” (emphasis added).

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[626]In R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1108, [1990] S.C.J. No. 49 (QL), the court wrote:

In Guerin, supra, … [t]his Court found that the Crown owed a fiduciary obligation to the Indians with respect to the lands. The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation.

[627]And in Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344 at 372 and 373, [1995] S.C.J. No. 99 (QL), McLachlin J. (as she then was) wrote:

¶38 … A person cedes (or more often finds himself in the situation where someone else has ceded for him) his power over a matter to another person. The person who has ceded power trusts the person to whom power is ceded to exercise the power with loyalty and care. This is the notion at the heart of the fiduciary obligation.

. . . . .

¶40 I conclude that the evidence does not support the existence of a fiduciary duty on the Crown prior to the surrender of the reserve by the Band.

[underlining in original]

[628]It is clear, in my view, that a fiduciary obligation and/or a fiduciary duty does not exist at large between Canada and aboriginals, nor in respect of all aspects of aboriginal life. There must be more for the creation of such an obligation or duty.

[629]From Guerin and those cases which have followed it, I conclude that there are three fundamental criteria for the creation of a fiduciary relationship as between aboriginals and the Crown in respect of aboriginal title to land:

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(1)the existence of Indian or aboriginal title;

(2)the fact that the Indian or aboriginal interest in the land is inalienable except upon surrender to the Crown;

(3)the resulting responsibility of the Crown to the aboriginals flowing from the surrender requirement.

[630]In the present case, the plaintiffs argue that a fiduciary relationship existed between Canada and the Métis and that a fiduciary duty arose with

respect to the section 31 land grants “out of the extinguishment (by statute, not by surrender…) of the Métis Aboriginal title”. The plaintiffs assert that “where a people exchange their Aboriginal rights for a statutory affirmation of certain rights to be held in lieu thereof, the same principles apply.”

[631]That may be so where the facts warrant such a finding. But it is not the case here. As I have already decided that the Métis did not hold aboriginal title, there was nothing to surrender or cede. In the result, no responsibility existed in the Crown relative to the land in question. Hence, no relationship of a fiduciary nature, nor fiduciary duty, existed between Canada and the Métis in respect of the subject land.

[632]The plaintiffs also argue the existence of a fiduciary relationship in respect of the section 31 grant by reason of the fact that the grant was to children. In

my view, there is no merit to that assertion. “Children” does not in the language

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of section 31 mean infants or minors. Rather, it is a description of lineage so that even if there were merit in the argument that such a relationship existed because the recipients were infants, it surely would not apply to those who fall within the description but were adults. Furthermore, however, in my view, the Government did not stand in a fiduciary relationship to those entitled under section 31 but who in fact were infants. Their parents or guardians may well be fiduciaries to their children, but not the Government by reason only of the fact of their infancy.

[633]In the result, I conclude that there was no fiduciary relationship which existed between the Métis (including the Métis children) and Canada in respect of the land which, by virtue of the Act, became part of Canada on the entry of Manitoba into Confederation on July 15, 1870, nor was any fiduciary duty owing in respect of it or of the children’s grants which were to be made and were made

under section 31.

HONOUR OF THE CROWN

[634]The plaintiffs assert that the honour of the Crown was engaged in this case whatever legal characterization is placed on the product of the negotiations. They assert that the honour of the Crown must be observed in all of its dealings

with aboriginal peoples, that it precedes and is the foundation of the Crown’s fiduciary duty, and that it is a source of independent obligation which continues throughout all dealings between the Crown and aboriginal people whether or not a fiduciary duty arises.

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[635]Canada, on the other hand, argues that the honour of the Crown has no application to this case. It asserts that it is a doctrine which arises out of the

Crown’s historic relationship with Indians who are vulnerable, uneducated people unfamiliar with European ways and the technical nature of language, and who in their dealings with the Crown were required to deal in a foreign language with representatives who are better educated and far more skilled. In short, Canada asserts that the doctrine is one looked to or relied upon for the purpose of trying to balance the inequities between aboriginals and the Crown in their dealings.

[636]The plaintiffs refer to excerpts from the judgment of McLachlin C.J. in both Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, and in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74.

[637]In Haida Nation, supra, McLachlin C.J. wrote, at pp. 522-23:

¶16 The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples…. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.

¶17 The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre- existence of aboriginal societies with the sovereignty of the Crown”….

And, she wrote, at p. 528:

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¶32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown’s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people.

[638]And, in Taku River Tlingit First Nation, supra, she wrote, at p. 564:

¶24 … As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the

Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.

[639]And, in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 at 286, 2002 SCC 79, Binnie J. wrote:

¶80 … Somewhat associated with the ethical standards required of a fiduciary in the context of the Crown and Aboriginal peoples is the need to uphold the “honour of the Crown”….

[640]In my view, in the circumstances of this case, the doctrine of honour of the Crown does not apply. I reach that conclusion for three reasons principally. Firstly, as McLachlin C.J. wrote in Haida Nation, at p. 528:

¶32 … the Crown’s duty of honourable dealing toward Aboriginal peoples … arises … from the Crown’s assertion of sovereignty over an

Aboriginal people and de facto control of land and resources that were formerly in the control of that people.

And, in Taku River Tlingit First Nation, she wrote, at p. 564:

¶24 … The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.

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But on the historical facts here, neither was the case. The Crown did not assert sovereignty over the Métis in their capacity as Métis, nor did it take control of land formerly in the control of that people.

[641]Secondly, the facts in this case make clear that the Métis were not a vulnerable or unsophisticated people insofar as the representation or advancement of their interests were concerned (or for that matter in a relative context insofar as life within the Settlement was concerned) at the time of the discussions leading to the passage of the Act, or thereafter. For reasons which I have already expressed, that is abundantly evident. The Métis were an active and vital part of the fabric of the community. They participated in its governance and economy and had for sometime. They did not view themselves as vulnerable people, but considered themselves as, and as entitled to the rights of, full-fledged citizens and would accept nothing less.

[642]Thirdly, the doctrine of honour of the Crown places upon the Crown the obligation to meaningfully consult with aboriginals, or their representatives.

[643]Here, however, the delegates who met with Macdonald and Cartier were sent as representatives of the Convention of 40 or Provisional Government to represent the interests of the residents of the Settlement. They were not there as representatives of the Métis per se. Nor was the Act an instrument that dealt specifically with or in respect of the rights or interests of the Métis.

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[644]To attempt to analogize that which occurred here as in any way comparable to dealings with aboriginals that would result in the creation or invocation of the doctrine of honour of the Crown would, when placed in an historical context, be both wrong in my view and insulting to the Métis at the time.

[645]While it is true that many of the Métis residents themselves would doubtless have been unsophisticated and not educated or well educated in the formal sense, as would have been the case with many of the non-Métis residents of Red River, their leaders were and so were their delegates.

[646]In my view, the doctrine of honour of the Crown has no relevance to the events which concluded with the passage of the Act effective July 15, 1870, or to its interpretation or implementation.

SECTION 31 OF THE ACT

[647]I have already found on the evidence that there was no agreement or treaty negotiated or concluded between the Red River delegates and Macdonald and Cartier as representatives of Canada. Rather, an Act of Parliament was passed, section 31 of which is as follows:

31.And whereas, it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the

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time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.

[648]In interpreting the Act, and in particular section 31 thereof, the starting point is the ordinary meaning of the language viewed generously in an historical, contextual and purposive manner. While we must look at the evidence which reflects that which was said or done by those involved in the negotiations or discussions leading to the Act so as to put matters in historical context and give purpose to that which Parliament did, ultimately, the exercise is to determine the intent of Parliament in passing section 31. Only in the event of uncertainty or ambiguity is there any need to look beyond the plain language of the section.

[649]When one looks at the available evidence material to the passage of the

Act, including section 31 thereof, which I have previously outlined in these reasons in some detail, the following conclusions in my view are evident:

The Red River delegates came to Ottawa to discuss with Macdonald and Cartier that which the people of the Settlement sought by way of rights which they would enjoy following the territory’s entry into Confederation as a Province. The delegates and their principals knew that ultimately Parliament alone would make the decision in respect of those rights.

Neither the Red River delegates nor their principals had contemplated a land grant for the children, Métis or others. The four lists of rights make clear that they expected the land rights then enjoyed by title or otherwise

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by all in the community at the time to be confirmed for the future, and that they intended and expected that the public lands would be owned by the Province so that the Provincial Legislature would then be entitled to do with those lands as it chose. It was only when it became clear to the delegates that Canada would not agree to transfer ownership of the public land to the Province that the concept of a children’s grant first arose.

Canada, to the knowledge of Macdonald and Cartier, was in a difficult position having to complete the steps necessary for the entry of Rupert’s

Land into Canada. An insurrection had occurred at Red River such that, in the view of both Canada and Britain, a void in the lawful governance of the territory existed. Canada, as a result of McDougall’s conduct on

December 1, 1869, had in a practical sense claimed the territory for Canada, but the legal transfer of the territory from Britain had not yet occurred. Accordingly, Canada had no lawful authority to govern the area. Furthermore, there was neither the practical ability nor the will for Canada or the Imperial Government to enforce authority and in that sense, the purpose of the discussions or negotiations between the Red River delegates and Macdonald and Cartier was to bring about in a peaceful way the entry of the territory into Canada, thereby giving Canada the opportunity to peacefully take over the territory and its governance and be able to move forward with its goal of nation building.

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Macdonald had asked the Imperial Government to send troops to the territory which he considered necessary to ensure peace and order at the time of takeover. The Imperial Government had expressed certain conditions upon which it was prepared to do so, one of which was that Canada would have to make satisfactory arrangements with the settlers in Red River. Both the Red River delegates and Macdonald and Cartier were aware of this condition and were aware that if necessary, the Imperial Government might impose itself into the discussions to decide issues concerning the settlers which could not be satisfactorily resolved as between the Red River delegates and Canada.

Macdonald and Cartier made clear to the Red River delegates the reason why Canada would retain ownership of the public lands. This was recorded in Ritchot’s diary on April 27, 1870. Macdonald and Cartier also made clear to Parliament the reasons why Canada had to maintain ownership of the public lands.

The intent of Macdonald and Cartier in respect of the children’s land grant is clear. This is found in the diary entries of Northcote wherein he recorded a conversation with Cartier and a conversation with Macdonald on May 2 and 4, 1870, respectively. May 2 was of course the day when the Bill was introduced for first reading and both Macdonald and Cartier spoke to the Bill in Parliament. May 4 was the day the Bill was first

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introduced in printed form and both Macdonald and Cartier again spoke to the Bill with Macdonald moving second reading.

The delegates’ request that the selection of the grant be made by the

Lieutenant Governor on the advice of a local committee was not acceptable to Macdonald and Cartier for the reasons which they had expressed to Northcote, and to Parliament, as early as the first reading of the Bill on the evening of May 2, 1870, when Macdonald made clear that the conduct of the Lieutenant Governor would be under the direction of the Governor General in Council.

The Red River delegates were aware of what was transpiring in Parliament and, in particular, of the comments made by Macdonald and Cartier concerning the land grant, as well as the strong opposition in Parliament to providing any benefits to the Métis which many members described as

Riel’s followers.

Macdonald and Cartier were aware of, and members of Parliament appeared to accept, the need for settlement with the Indians in the territory towards extinguishment of Indian title to the land.

There was considerable parliamentary opposition to the suggestion of any benefits to the Métis. Ritchot records this in his diary.

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Ritchot objected to the language of section 31 as compared with the delegates’ demands. But he (and his co-delegates) were told by Macdonald and Cartier that if there were to be any amendment suggested to the language of the Bill, it would not pass; indeed, that they would have enough trouble getting the Bill passed in the language it was in. Ritchot discussed all of this including any suggestion of amendment with others beyond simply the Red River delegates. The Bill then continued to passage.

The Red River delegates, and their principals, knew that the meaning of the reference in the Act to the land grant being towards the extinguishment of Indian title was not clear. Ritchot reported this to the Provisional Government on June 24, 1870. The following exchange appears in The New Nation report of Ritchot’s appearance before the Provisional Government:

Honourable Mr. O’Donoghue. Some gentlemen present do not, I find, understand clearly article 30 of The Manitoba Act, that having reference to the extinguishing of the Indian title by a land grant.

The President [Mr. Riel] — The grant is made to extinguish so much of the Indian title as is inherited by children having Indian blood. But apart from this, the general Indian title has to be extinguished by being dealt with separately. All those having Indian blood have a title which must be extinguished as well as the general Indian claim.

Rev. Mr. Ritchot — The half-breed title, on the score of Indian blood, is not quite certain. But in order to make a final and satisfactory arrangement, it was deemed best to regard it as certain, and to extinguish the right of the minority as Indians; and for that reason 1,400,000 acres were set aside by the Canadian government for the half- breed children of the country to extinguish their admitted right as half- breeds. This reservation does not in the least conflict with the 91st

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section of the general act, where it is provided that certain tracts of land are to be reserved for, and owned by Indians.

It was then in response to another question from Mr. O’Donoghue that Ritchot responded that the half-breeds taking these reserves were not to be considered Indians.

Macdonald appears to have been of a similar view. In Blais, the Supreme Court of Canada wrote, at p. 248:

¶22 … While s. 31 states that this land is being set aside “towards the extinguishment of the Indian Title to the lands in the Province”, this was expressly recognized at the time as being an inaccurate description. Sir John A. Macdonald explained in 1885:

Whether they [the Métis] had any right to those lands or not was not so much the question as it was a question of policy to make an arrangement with the inhabitants of that Province … 1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, because the half-breeds did not allow themselves to be Indians.

Macdonald went on to say (though not referred to in Blais):202

If they are Indians, they go with the tribe; if they are half-breeds, they are whites, and they stand in exactly the same relation to the Hudson Bay Company and Canada as if they were altogether white. That was the principle under which the arrangement was made and the Province of Manitoba was established.

[650]In making reference to the extinguishment of Indian title, a proposition which from the speeches in Parliament seemed to be accepted by the members, is it the case that the Government saw an opportunity to overcome parliamentary opposition to the making of a land grant to the Métis children and thereby be seen to be rewarding Riel and his followers, while at the same time

202Exhibit 1-1678, page 3113

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allowing for the creation of a land grant that would have the support of the Red River delegates? It appears from the evidence that Northcote seemed to understand this to be so. He recorded in his diary for May 2, 1870, entries concerning Macdonald’s speech in Parliament introducing the Bill on first reading that day. With respect to the issue of the land grant, he wrote:

His mode of introducing the vexed question of the land reserve for the half-breeds was ingenious. He treated the land (1,200,000 acres) as being reserved simply for the purpose of extinguishing the Indian claims, and he threw in the suggestion that the grants to the people who might be entitled to them were to be made in much the same way as the old grants to the U.E. Loyalists (United Empire Loyalists, to whom grants were made in Canada after the Independence of the United States), a reference very acceptable to the Ontario men….

[651]When one considers the available evidence, it is unrealistic and in my view wrong to conclude that Parliament, by enacting section 31, intended to create aboriginal title or anything tantamount to it, or to create a land base, particularly a contiguous land base, for the Métis.

[652]In my view, Parliament, as a matter of law, could not create aboriginal title because the essence of aboriginal title is that it existed before British

Sovereignty and was “not created by Royal Proclamation … or by any … executive order or legislative provision” (per Guerin, at p. 379).

[653]And, as a practical matter, the evidence leads to the conclusion that faced with the demands of the delegates, the directions of the Imperial Government, the comments of Macdonald and Cartier in particular as to their wishes and Canada’s obligations to the HBC and the Indians, and the strong opposition in

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Parliament to giving anything to Riel and his followers, the Government could not, or at least would not, have proceeded to create something tantamount to aboriginal title, including a land base and particularly a contiguous land base for the Métis.

[654]Rather, the Government settled upon language which Parliament accepted in passing the Act, which would appease all sides and bring about a resolution of the impasse at Red River. This would enable the peaceful union of Rupert’s Land

with Canada and would permit Canada to take over the territory and its governance and to move forward with its dream and goal of nation building.

[655]I agree with Canada’s assertion that the land grant was simply a

recognition of the contributions of the Métis to the settlement and development of the territory. And it was intended simply to give the families of the Métis through their children a head start in the new country in anticipation of the probable and expected influx of immigrants.

[656]In my view, a fair conclusion considering all of the relevant evidence is that the language:

And whereas, it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents,…

was not intended by Parliament either to recognize the half-breeds as enjoying Indian title or to be entitled to share in Indian title. Rather, it was a political expedient used successfully by Macdonald and his government to satisfy the

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delegates and make palatable to the Opposition in Parliament the grant of land to the children of the half-breeds and to thereby ensure passage of the Act.

[657]As well, the language of section 31 could not be understood to create aboriginal title or its equivalent in the subject lands, as there was no requirement in the section that the land grant be held communally or that it not be capable of alienation other than to the Crown.

[658]In short, what had existed in connection with Métis landholdings before the passage of the Act would continue thereafter even in respect of the

children’s land grant, namely, that the Métis would continue to be entitled to own land on an individual rather than communal basis, and to hold that land or alienate it as they chose.

[659]Further, I reiterate my conclusion that section 31 did not create a fiduciary relationship between Canada and the Métis children or create fiduciary duties or obligations upon Canada with respect to that land.

[660]As Dickson J. wrote in Guerin, at p. 385:

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. … [T]he Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians’ interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown’s obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not

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a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.

[661]In light of my findings I conclude there was no sui generis relationship in respect of the subject land as between the Métis and the Crown prior to the enactment of section 31. And, what section 31 did was nothing more than to create a grant to a certain class of people, in this case, the Métis children. But that interest or entitlement to land did not derive from an interest independent of the Crown. Rather, it was an interest that was created by the Crown by

legislation. Accordingly, the Crown’s duty here was a public law duty and no fiduciary relationship was thereby created nor did any fiduciary duty or obligation arise between the Crown and the Métis children as a result.

THE MANITOBA ACT – SECTION 32

[662]Section 32 of the Act is as follows:

32.For the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them, it is enacted as follows:—

(1)All grants of land in freehold made by the Hudson’s Bay

Company up to the eighth day of March, in the year 1869, shall, if required by the owner, be confirmed by grant from the Crown.

(2)All grants of estates less than freehold in land made by the

Hudson’s Bay Company up to the eighth day of March aforesaid, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.

(3)All titles by occupancy with the sanction and under the license and authority of the Hudson’s Bay Company up to the eighth day of March aforesaid, of land in that part of the Province in which the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.

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(4)All persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council.

(5)The Lieutenant-Governor is hereby authorized, under regulations to be made from time to time by the Governor General in Council, to make all such provisions for ascertaining and adjusting, on fair and equitable terms, the rights of Common, and rights of cutting Hay held and enjoyed by the settlers in the Province, and for the commutation of the same by grants of land from the Crown.

[663]Historically, there was no independent ownership of land in the Settlement. Land tenure for all residents of the Settlement was at the sufferance of the governing power, the HBC, though there were some who occupied land outside the Settlement Belt but as squatters only.

[664]The residents of the Settlement were aware of the pending union. They, but particularly those who were squatters and held their land not by way of grant from the HBC but with the tacit approval of the HBC or with no tacit approval whatsoever, were anxious that with the union of Rupert’s Land and Canada they

not lose their landholdings to immigrant settlers expected to come into the territory once Rupert’s Land became part of Canada.

[665]All four of the list of rights made reference to this concern. Clause 5 of the first list of rights stipulated for “A free Homestead and pre-emption Land

Law”. Clause 14 provided “That all privileges, customs and usages existing at the time of the transfer be respected”.

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[666]In the second list of rights, clause 8 stipulated for “A Homestead and Pre-

emption Law” and clause 16 provided “That all properties, rights and privileges, as hitherto enjoyed by us, be respected and recognition and arrangement of local customs, usages and privileges, be made under the control of the Local Legislature”.

[667]In the third list of rights, clause 5 provided “That all properties, rights and

privileges enjoyed by the people of this Province up to the date of our entering into Confederation be respected and that the arrangement and confirmation of all customs, usages and privileges be left exclusively to the Local Legislature”.

[668]And in the fourth list of rights, clause 5 provided “That all properties,

rights and privileges enjoyed by us up to this day be respected, and that the recognition and settlement of customs, usages and privileges be left exclusively to the decision of the Local Legislature”.

[669]This concern was known by Canada and commented upon by various authorities or officials representing Canada on different occasions following the insurrection but prior to the passage of the Act.

[670]On December 6, 1869,203 a proclamation was issued by the Governor General of Canada addressed to the residents of the Settlement in which, in part, he stated:

203Exhibit 1-0346

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By Her Majesty’s authority I do therefore assure you, that on the union with Canada all your civil and religious rights and privileges will be respected, your properties secured to you, and that your country will be governed as in the past under British laws, and in the spirit of British justice.

[671]On December 7, 1869,204 Joseph Howe (“Howe”), Secretary of State for

the Provinces, told McDougall that in his communications with the residents of the North-west, he should assure them “that all their properties, rights and equities of every kind as enjoyed under the government of the Hudson’s Bay Company will be continued them, and that in granting titles to land, now occupied by the settlers, the most liberal policy will be pursued.”

[672]By letter dated January 3, 1870,205 Macdonald wrote Smith responding to his communications of December 19 and 20, 1869. In his letter, Macdonald indicated that he had read the claims of the insurgent half-breeds and instructed Smith as to what his government was willing to concede. He wrote, in part:

There is no general Homestead Law in Ontario as you state in your letter, but you can assure the Residents that all titles to land held by residents in peaceable possession will be confirmed, and that a very liberal land policy as to the future settlement of the Country will be adopted.

[673]And Smith, in a lengthy report to Howe dated April 12, 1870,206 advised Howe of that which he had told the Convention of 40 in response to its demand for a homestead and pre-emption law. He replied to that demand as follows:

8th I have been instructed by the Canadian government – to make known to the people of the Settlement – that all property held by residents in peaceable possession will be secured to them; and that a most Liberal land policy in regard to the future Settlement of the country

204Exhibit 1-0347

205Exhibit 1-0372

206Exhibit 1-0446

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will be adopted – every privilege in this respect enjoyed in Ontario or Quebec, being extended to the Territory.

[674]It must be noted that the concerns and demands of the leaders of the Settlement as evidenced by the lists of rights related not to the French Métis or to the English half-breeds but to all of the residents of the Settlement. As well, the expressions of assurance given were not given to the French Métis or the English half-breeds but to all of the residents.

[675]Further, section 32 itself does not contain language, the plain reading of which recognizes or provides for the French Métis or English half-breeds. Rather, the section was for the benefit of all settlers.

[676]Subsections (1) through (4) address the various kinds of land tenure which then existed and were recognized within the territory, namely, freehold grants from the HBC, estates less than freehold grants from the HBC, occupancy within the Settlement Belt with the sanction and under the license and authority of the HBC, and peaceable possession of land outside the Settlement Belt. The purpose, as expressed in the opening provision of section 32, was to quiet titles and assure the settlers in the Province the peaceable possession of the lands then held by them.

[677]As regards subsections (1) and (2), the persons were entitled to obtain from the Crown a grant of an estate in freehold for the subject land. The plaintiffs advance no claim in respect of these subsections except on the basis generally of delay.

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[678]As regards subsection (3), the persons who were entitled were squatters within the Settlement Belt; that is, persons who simply occupied land by way of licence or permission express or tacit of the HBC. Those persons were given the right, if they wished, to convert their occupancy by licence into an estate in freehold by grant from the Crown.

[679]The persons entitled under subsection (4) were also squatters on land outside the Settlement Belt; that is, where Indian title had not been extinguished. They, too, were given entitlement to certain rights in respect of that land.

[680]The language of subsection (5) was likewise clear. The Lieutenant- Governor, under regulations of the Governor General in Council, was authorized to fairly and equitably ascertain and adjust the rights of common and rights of cutting hay enjoyed by the settlers in the province and have them commuted by land grants from the Crown.

[681]The plaintiffs assert that since Parliament by section 33 of the Act

reserved to the Crown the power to implement the land provisions of the Act by order in council, Canada thereby became a fiduciary in respect of such land with fiduciary responsibility to the recipients in the formulation and administration of the regulations.

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[682]I do not agree. Firstly, there is no evidence that Parliament intended by section 32 to create a fiduciary relationship between Canada and the residents who fell within section 32 and particularly subsections 32(3), (4) and (5).

[683]Secondly, there is not, in my view, any basis for the creation of a fiduciary responsibility between Canada and those residents. None of those residents held aboriginal title to the land in question. None held any interest or any claim to interest independent of the Crown or through it the governing authority of the territory. This was particularly so under subsections (3) and (4) being squatters whose occupation was by tacit approval only and under subsection (5), whose interest was as to the use of land but only with the approval of and subject to the conditions imposed by the Crown or governing authority within the territory.

[684]The governing authority was either the HBC by virtue of grant or licence from the British Crown, or at the material time the British Crown by reason of the

HBC’s surrender of the land back to the British Crown in exchange for the £300,000 payment by Canada. The British Crown in turn ceded the subject land to Canada at the time of the transfer.

[685]In short, the persons entitled under section 32 had no interest in the land independent of the Crown and furthermore enjoyed whatever interest they had by sufferance of the Crown.

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[686]Referring again to the language of Dickson J. in Guerin at p. 385, referred to in para. 329 of these reasons, I conclude that Canada had nothing more than a public law obligation under section 32 of the Act.

IMPUGNED ENACTMENTS

[687]The plaintiffs assert that certain enactments, both federal and provincial, are unconstitutional. The allegations are raised in the statement of claim, and

are amplified by the plaintiffs’ response to particulars filed March 24, 2005, and found at tab 2 of the trial record.

[688]No specific area of argument, written or oral, was provided by the plaintiffs relative to the impugned federal enactments though there was with respect to the impugned provincial enactments. I propose, therefore, in these reasons to deal with the impugned provincial enactments first, followed by the impugned federal enactments.

IMPUGNED PROVINCIAL ENACTMENTS

[689]The plaintiffs do not assert that Manitoba passed any legislation undermining rights provided under section 32 of the Act.

[690]But they argue that Manitoba did pass legislation relating to and facilitating disposition by half-breed children of section 31 lands and that this legislation was ultra vires in that it:

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(a)constituted amendments or alterations to the Act contrary to section 6 of the Constitution Act, 1871, and was otherwise unconstitutional;

(b)trenched on federal jurisdiction under subsection 91(1) of the Constitution Act, 1867;

(c)trenched on federal jurisdiction under subsection 91(24) of the Constitution Act, 1867.

[691]The plaintiffs therefore seek declarations that certain provincial enactments were ultra vires, or otherwise unconstitutional, and that by enacting certain legislation and by imposing taxes on section 31 lands prior to the grant of those lands, Manitoba unconstitutionally interfered with the fulfillment of obligations under section 31 of the Act.

[692]Manitoba asserts that the provincial legislation impugned by the plaintiffs

was validly enacted pursuant to the province’s powers under section 92 of the Constitution Act, 1867. It asserts, as well, that none of the provisions in the impugned legislation constituted amendments or alterations to section 31 of the Act contrary to section 6 of the Constitution Act, 1871 or otherwise.

[693] Manitoba asserts that either legislation is intra vires, or ultra vires. There is no doctrine of “otherwise unconstitutional.” If legislation is ultra vires, the only remedy that may be sought by the plaintiffs in respect of such legislation is

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a declaration of unconstitutionality. It says there is no doctrine of “unconstitutional interference” and accordingly no declaration to this effect can issue out of this court.

[694]Manitoba relies upon the presumption of constitutionality which was explained by the Supreme Court of Canada in Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662, [1978] S.C.J. No. 25 (QL), wherein Ritchie J., for the majority, wrote, at pp. 687-88:

In all such cases the Court cannot ignore the rule implicit in the proposition stated as early as 1878 by Mr. Justice Strong in Severn v. The Queen (1878), 2 S.C.R. 70 at p. 103, that any question as to the validity of provincial legislation is to be approached on the assumption that it was validly enacted. As was said by Fauteux J., as he then was, in the Reference re The Farm Products Marketing Act, [1957] S.C.R.

198 at p. 255:

There is a presumptio juris as to the existence of the bona fide intention of a legislative body to confine itself to its own sphere and a presumption of similar nature that general words in a statute are not intended to extend its operation beyond the territorial authority of the Legislature.

[695]And, in Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, the Supreme Court of Canada wrote, at p. 802:

¶25 … The presumption of constitutionality means that … the party challenging the legislation, is required to show that the Act does not fall within the jurisdiction of Parliament….

which in that case was the enacting Legislature.

[696]As well, in Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3, Major J., for a unanimous court, wrote, at p. 26:

¶33 In making this determination, I am mindful of the presumption of constitutionality…. When faced with two plausible characterizations of a

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law, we should normally choose that which supports the law’s constitutional validity.

[697]Manitoba argues as well that another aspect of the presumption of constitutionality flows out of respect for the principle of cooperative federalism. While governments cannot by agreement lend legitimacy to a claim of intra vires, the fact that the two levels of government agree that legislation is constitutional is deserving of careful consideration by the courts.

[698]Dickson C.J., in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, [1987] S.C.J. No. 48 (QL), wrote the following in that regard, at p. 19:

I think it is important to note, and attach some significance to, not only the similar federal legislation but also the fact that the federal government intervened in this appeal to support the Ontario law. The distribution of powers provisions contained in the Constitution Act, 1867 do not have as their exclusive addressees the federal and provincial governments. They set boundaries that are of interest to, and can be relied upon by, all Canadians. Accordingly, the fact of federal- provincial agreement on a particular boundary between their jurisdictions is not conclusive of the demarcation of that boundary. Nevertheless, in my opinion the Court should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it….

[699]Manitoba argues that this proposition is of particular importance in the present case because of the fact that Canada not only supports the constitutionality of Manitoba’s legislation but also supported the constitutionality

of the legislation when the statutes were first passed and during an era when the power of disallowance was regularly engaged.

[700]In addressing the plaintiffs’ attack on the constitutional validity of its legislation, Manitoba asserts that its legislation is constitutional as falling within

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subsection 92(13) — property and civil rights in the province — or subsection 92(14) — the administration of justice in the province — of the Constitution Act, 1867.

[701]Peter W. Hogg, Constitutional Law of Canada, 4th ed. (loose-leaf) (Toronto: Carswell, 1997) at pp. 21-2 and 21-3, describes property and civil

rights under subsection 92(13) “as a compendious description of the entire body of private law which governs the relationship between subject and subject.” “Civil rights” under this heading does not include fundamental civil rights or liberties, but rather refers to proprietary, contractual and tortious rights.

[702]In Citizens Insurance Co. of Canada v. Parsons, [1881-85] All E.R. Rep. 1179, the Privy Council, when discussing the meaning of the words

“property and civil rights” found in subsection 92(13), wrote:

There seems no reason for presuming that contracts and the rights arising from them were not intended to be included in this provision….

[703]And, in Attorney-General for the Dominion of Canada v.

Attorneys-General for the Provinces of Ontario, Quebec, and Nova Scotia, [1898] A.C. 700 at 716, the Privy Council made clear that legislation

dealing “directly with property, its disposal, and the rights to be enjoyed in respect of it”, came within provincial legislative competence under subsection 92(13).

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[704] To the extent the impugned legislation dealt with The Queen’s Bench Act or Queen’s Bench procedure, Manitoba says that that clearly falls within provincial legislative competence under subsection 92(14) of the Act.

[705]The court must here determine whether the impugned provincial legislation is in respect of contract and the rights arising therefrom or property and the rights to be enjoyed in respect of it including its disposal as between individuals, or whether the impugned provincial legislation is in relation to federal property and/or Indians and lands reserved for the Indians. If the former, the impugned legislation is intra vires and constitutionally valid. If the latter, as asserted by the plaintiffs, then the impugned legislation would be ultra vires and constitutionally invalid.

[706]In order to determine whether an Act falls within a provincial or federal head of power, the court must embark upon a division of powers analysis. That is, the court must determine the pith and substance of the legislation.

[707]In Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17, McLachlin C.J., for a unanimous court, wrote, at p. 578:

¶16 … The pith and substance analysis asks two questions: first, what is the essential character of the law? Second, does that character relate to an enumerated head of power granted to the legislature in question by the Constitution Act, 1867?

[708]In Reference re Firearms Act (Can.), supra, the Supreme Court of Canada wrote, at pp. 796-97:

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¶16 The first task is to determine the “pith and substance” of the legislation. To use the wording of ss. 91 and 92, what is the “matter” of the law? What is its true meaning or essential character, its core? To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law.

¶17 A law’s purpose is often stated in the legislation, but it may also be ascertained by reference to extrinsic material such as Hansard and government publications…. While such extrinsic material was at one time inadmissible to facilitate the determination of Parliament’s purpose, it is now well accepted that the legislative history, Parliamentary debates, and similar material may be quite properly considered as long as it is relevant and reliable and is not assigned undue weight…. Purpose may also be ascertained by considering the “mischief” of the legislation — the problem which Parliament sought to remedy….

¶18 Determining the legal effects of a law involves considering how the law will operate and how it will affect Canadians. … Within its constitutional sphere, Parliament is the judge of whether a measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of powers analysis…. Rather, the inquiry is directed to how the law sets out to achieve its purpose in order to better understand its “total meaning”….

And, the court wrote, at p. 799 and pp. 801-2:

¶21 Another way to determine the purpose of legislation is to look at the problems it is intended to address — the so-called “mischief” approach.

. . . . .

¶25 Having assessed the pith and substance or matter of the law, the second step is to determine whether that matter comes within the jurisdiction of the enacting legislature. We must examine the heads of power under ss. 91 and 92 of the Constitution Act, 1867 and determine what the matter is “in relation to”.

[709]In Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2 S.C.R. 146, 2002 SCC 31, LeBel J., for a unanimous court, wrote, at p. 171:

¶53 A pith and substance analysis looks at both (1) the purpose of the legislation as well as (2) its effect. First, to determine the purpose of the legislation, the Court may look at both intrinsic evidence, such as purpose

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clauses, or extrinsic evidence, such as Hansard or the minutes of parliamentary committees.

¶54 Second, in looking at the effect of the legislation, the Court may consider both its legal effect and its practical effect. In other words, the Court looks to see, first, what effect flows directly from the provisions of the statute itself; then, second, what “side” effects flow from the application of the statute which are not direct effects of the provisions of the statute itself…. Iacobucci J. provided some examples of how this would work in Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 23:

The effects of the legislation may also be relevant to the validity of the legislation in so far as they reveal its pith and substance. For example, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, the Court struck down a municipal by-law that prohibited leafleting because it had been applied so as to suppress

the religious views of Jehovah’s Witnesses. Similarly, in

Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117, the Privy Council struck down a law imposing a tax on banks because the effects of the tax were so severe that the true purpose of the law could only be in relation to banking, not taxation. However, merely incidental effects will not disturb the constitutionality of an otherwise intra vires law.

[710]In Ward, supra, the Supreme Court of Canada made clear that a pith and substance analysis is not to become or to be technical or formalistic but rather is really a matter of interpretation.

[711]As I have commented previously in other parts of this judgment, there is no viva voce evidence from witnesses alive at the material time. In performing a pith and substance analysis, attempting to determine both the purpose of the enacting body and the legal effect of the law, the court is faced with the difficult challenge of so doing in respect of legislation more than 125 years old.

[712]Manitoba concedes that under the Act, legal title to the land to be granted under section 31 was held by Canada and would remain with Canada

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until the grant or patent to the specific land was issued by Canada to the individual entitled thereto under the Act. But Manitoba argues that while the legal estate rested with Canada until the grant or patent was actually issued, an individual could in the meantime and prior to grant of patent hold a beneficial interest to such land. Manitoba concedes that it could not legislate in respect of the legal estate in that land until the grant had been made by Canada to the individual recipient but argues that it could legislate in respect of the beneficial interest of such person.

[713]The evidence is clear that from an early date, well before grants of patent first occurred, sales of interests in respect of the section 31 land grant began. As early as November 30, 1872, and thereafter, statements were published in the local newspapers cautioning the Métis to be aware of speculators, to retain their interests in the section 31 lands and as well to renege on any improvident transactions that any had entered into.

[714]While the sale of such interests was doubtless a cause of concern for at least some in the community, the fact was that the Métis had the same rights as citizens as did any other person in the province, except Indians. This, of course, included the right to enter into contracts pursuant to the common law. One’s

right of claim in the section 31 grant was a saleable asset and but for statutory provisions all of the ordinary laws of contract would apply to any agreement respecting the sale and purchase of such an asset, including sale by an infant which was permissible at common law.

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[715] Manitoba argues that as it was recognized at the time that contracts had been and were being entered into with respect to individuals’ interests in the section 31 grant, the Legislature chose to address the issue by passing The Half-breed Land Grant Protection Act, S.M. 1873, c. 44 (hereinafter “The Half-breed Land Grant Protection Act, 1873”). That Act dealt with contracts entered into for the sale of one’s share or interest in the section 31 land grant prior to patent. It made such contracts voidable at the instance of the half-breed vendor. Manitoba asserts that that Act dealt solely with contract issues.

[716]The plaintiffs do not impugn The Half-breed Land Grant Protection Act, 1873, although they say that it would appear to be beyond provincial jurisdiction by virtue of subsection 91(24). I will deal with the subsection 91(24) argument in due course.

[717]By the end of 1876, final allotments with respect to the section 31 grant were being made. Individuals no longer had simply a right to share in the 1,400,000 acres, but in fact were being allotted an actual piece of land.

[718]Manitoba says the evidence discloses there were strong feelings in Manitoba that those citizens entitled to such land, albeit Métis, should be entitled to act in accordance with their personal values, that is, that those who wished to hold, or to cultivate, or to sell the land, including following allotment but before the issuing of patents, should be permitted the opportunity to do so.

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[719]Such evidence, Manitoba says, is found, for example, in the parish petitions of 1875,207 the minute of the Executive Council of Manitoba dated November 18, 1876,208 and the address of the Legislative Assembly of Manitoba dated February 19, 1877.209

[720]But the state of the law in 1876 was such that the common law of contract continued to govern but for its modification by The Half-breed Land Grant Protection Act, 1873. That Act, making such transactions voidable at the instance of the vendor, made sales very risky for the purchasers and from a market perspective, it can be safely inferred, would have a deleterious impact on the sale price of the interest.

[721]The plaintiffs, in paragraph 50 of their statement of claim, allege that the following provincial enactments are unconstitutional:

▪An Act to amend the Act passed in the 37th year of Her

Majesty’s reign, entitled “The Half-Breed Land Grant

Protection Act”, S.M. 1877, c. 5 (hereinafter “The Half-Breed Land Grant Amendment Act, 1877”);

▪An Act to enable certain children of Half-breed heads of families to convey their land, S.M. 1878, c. 20 (hereinafter

207Exhibits 1-1034, 1-1039 to 1-1041 and 1-1043

208Exhibit 1-1220

209Exhibit 1-1255

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“The Half-Breed Land Grant Act, 1878”);

▪An Act to amend the Act intituled: An Act to enable certain children of Half-breed heads of families to convey their land, S.M. 1879, c. 11 (hereinafter “The Half-Breed Land Grant Act, 1879”);

▪An Act respecting Half-Breed lands and quieting certain titles thereto, S.M. 1881 (3d Sess.), c. 19 (hereinafter “The Quieting Titles Act, 1881”);

▪An Act to explain certain portions of the Half-Breed Lands Act, S.M. 1883, c. 29 (hereinafter “The Half-Breed Lands Act, 1883”);

▪An Act concerning Decrees and Orders on the Equity Side of the Court of Queen’s Bench, Manitoba, S.M. 1884, c. 8

(hereinafter “The Decrees and Orders Act, 1884”);

▪An Act relating to the Titles of Half-Breed Lands, S.M. 1885, c. 30 (hereinafter “The Quieting Titles Act, 1885”);

▪An Act to provide for the payment to Half-Breeds of the amounts to which they are entitled, and which are invested in securities which cannot be realized, S.M. 1885, c. 34

(hereinafter “The Payment of Securities Act, 1885”);

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▪every enactment under which, and to the extent that, taxation was imposed in respect of section 31 lands prior to grant.

[722]The Acts impugned by the plaintiffs and Manitoba’s position as to the

alleged basis for their unconstitutionality are as follows:

The Half-Breed Land Grant Amendment Act, 1877

[723]The plaintiffs assert this Act was unconstitutional in that it permitted all sales by Métis children of section 31 lands which were executed after the coming into force of the Act, and thereby unconstitutionally permitted the sale of allotments prior to grant, contrary to section 31.

[724]Manitoba asserts that, in the circumstances, it had a significant reality to deal with. The section 31 land was shortly to begin being issued. Manitoba could have left the matter entirely under the common law as amended by The Half-breed Land Grant Protection Act, 1873, or it could have chosen to pass further legislation in an attempt to supplement and improve the common law to address the issue at hand. It chose the latter and enacted The Half- Breed Land Grant Amendment Act, 1877.

[725]In introducing that Act, Premier Davis advised that its purpose was to

“give satisfaction to the greatest number” and on seconding the motion, Mr. Norquay indicated that it was designed to remove a barrier.210

210Exhibit 1-1257, page 1

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[726]Manitoba says this legislation removed the absolute right of repudiation afforded the vendor under The Half-breed Land Grant Protection Act, 1873

but still made provision for safeguards to attempt to protect against improvident sales. This Act modified the common law by providing two additional safeguards, namely, an obligation for a deed, and an obligation for “valid consideration”.

[727]Prior to July 15, 1870, it appears that the Statute of Frauds did not apply in what thereafter became Manitoba. In Templeton v. Stuart, a decision of

the Court of Queen’s Bench, November 11, 1892,211 Bain J. stated:

The laws in force here prior to the transfer being the law of England as it existed on May 2, 1670 (the date of the Hudson’s Bay Company Charter), a sale of land could be by parol as the Statute of Frauds was not then in force.

[728] This had been previously stated by Killam J. in Sinclair v. Mulligan (1886), 3 M. R. 481 (Q.B.) who, at p. 491, wrote:

It was not for some seven years after the date of the company’s charter that the Statute of Frauds was enacted. Before its enactment a verbal agreement for the sale of land was valid and binding;… The necessary conclusion then is that … a mere verbal bargain and sale of land was sufficient to pass the title thereto both at law and in equity as it would have been in England in 1670….

Such was undoubtedly the prevalent mode of transferring land, until the transfer to Canada, among the half breeds and older white settlers, though later settlers undoubtedly brought with them and largely adopted the more satisfactory usage of evidencing such transactions by writing. These verbal transfers of land, appear from such records as I can find, to have been recognized in the courts. They have certainly continually been recognized by the Government in dealing with the issuing of patents in cases of both disputed and undisputed claims; they

211Exhibit 1-1952

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were uniformly recognized by the Commissioners from time to time appointed by the Government to consider disputed claims to patents.

[729] And, at p. 492, he wrote:

I am of opinion also that this system must be considered as having been in force until the full introduction of the laws of England of a later date by the Legislature of Manitoba.

[730]In the 1870s, there was no legal requirement in Manitoba that interests in land be conveyed in a specific manner. By insisting as this Act did on a deed for

the sale of one’s right to section 31 land, the Legislature ensured that some element of formality would enter the process.

[731]As well, by insisting on “valid consideration”, the Legislature further

modified the common law. Prior thereto, the courts did not inquire into the “adequacy of consideration”. But in amending the common law to require “valid consideration”, the courts became empowered to make inquiry into the validity of the consideration.

[732]Manitoba, accordingly, submits that the purpose of The Half-Breed Land Grant Amendment Act, 1877, was to deal with the law of contract, a matter which clearly falls under subsection 92(13) of the Constitution Act, 1867.

The Half-Breed Land Grant Act, 1878

[733]The plaintiffs say this statute was unconstitutional in that it set forth a special set of rules governing Métis infants, as an exception to An Act

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respecting Infants and their Estates, S.M. 1878, c. 7 (hereinafter “An Act respecting Infants”), assented to on the same day, February 2, 1878.

[734] The Act provided that all sales by 18-year-old Métis with the consent of their parents would be “as if such child was of the full age of 21 years”. This had the effect of permitting Métis children over the age of 18 years to dispose of their land without the normal judicial investigation required under An Act respecting Infants whether this was in the child’s best interests.

[735]The plaintiffs say that evidence was given to the Land Grants’ Inquiry in

1881 that the court routinely disregarded such safeguards in the disposition of Métis infant estates. They assert that between 1878 and 1881, tens of thousands of acres of section 31 lands were ordered to be sold by the Manitoba Court of Queen’s Bench. In making these orders, the judges dispensed with the safeguards provided by An Act respecting Infants and by the general orders of the court for the protection of the interests of the infants.

[736]Manitoba argues that in order to understand the purpose of this Act, one must remember that at common law, minors could and still can enter into contracts. However, they enjoy the right of repudiation in certain situations.

[737]In V. Di Castri, The Law of Vendor and Purchaser: The Law and

Practice Relating to Contracts for Sale of Land in the Common Law Provinces of Canada, 2nd ed. (Toronto: Carswell, 1976) at p. 64, the following appears:

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An infant’s contract to sell or buy land is not void but voidable by him within a reasonable time after his coming of age,… Failing such avoidance, the contract is valid and enforceable against the infant; the liability of the adult contracting party exists ab initio.

[738]This is concurred in in D.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984) at p. 92, wherein the following appears:

With regard to land, the common law permits an infant to hold a legal interest in land, and to dispose of it, but for the infant’s protection it provides that the disposition for value, including a settlement of the interest, is voidable unless, …, he abides by it during infancy and fails to repudiate the disposition within a short time of coming of age.

[739] There was no requirement at common law that parents or guardians join in the execution of a minor’s contract. The common law age of majority for contract purposes was 21 years and would have been applicable in Manitoba except as amended by statute. Order in Council April 25, 1871, stated that “claimants of the age of 18 and over shall receive their patents without delay and minors on arriving at that age.”212

[740]Manitoba argues that this could be taken as a statutory modification of the age of majority, fixing it at age 18 for the purpose of section 31 grants. It says another interpretation is that section 31 recipients under the age of 21 would be subject to the common law contract rules respecting minors. Manitoba thus asserts that given the lack of certainty over what legal regime applied to 18 to 20 year olds, the province had reason to step in and legislate.

212Exhibit 1-0608

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[741]It argues that the Manitoba Legislature by this enactment set rules pertaining to contract which would provide additional safeguards to protect vendors between the ages of 18 and 21 years respecting the section 31 lands.

[742]It says The Half-Breed Land Grant Act, 1878 supplemented the common law by requiring the consent of parents to the contract and confirmation by a judge or two justices of the peace that the child was voluntarily consenting to the transaction. The attestation was only prima facie evidence of consent. It remained open for a child to seek court intervention if the consent was not in fact voluntarily given.

[743]The Half-Breed Land Grant Act, 1878 also stated that the contract

was to be interpreted “as if such child was of the full age of twenty-one years”. Arguably, this provision would have removed the child’s common law right of repudiation thus giving purchasers a more secure interest and from a market perspective probably would have contributed to higher prices.

[744]Manitoba asserts that The Half-Breed Land Grant Act, 1878 falls within property and civil rights as it deals with contracts. It disputes the

plaintiffs’ allegation that this Act enabled sales before patent. Manitoba says it was the common law that enabled sales before patent and that the legislation in fact simply supplemented the common law rules of contract so as to provide some clarification and protection for infants.

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The Half-Breed Land Grant Act, 1879

[745]The plaintiffs assert this statute was unconstitutional in that by allowing sale by power of attorney, both prospectively and retroactively, it further facilitated the sale of allotments of section 31 lands by Métis children 18 years of age and older. As well, it was unconstitutional in that it purported to legalize certain deeds and conveyances made under S.M. 1878, c. 20, which did not comply with the provisions of the said statute.

The Half-Breed Lands Act, 1883

[746] The plaintiffs assert this Act was unconstitutional in that it provided that where a “half-breed” child over the age of 18 years was an orphan, no parental consent was required to sell the child’s allotment of or interest in section 31 land, and it retroactively validated such sales which had already taken place.

[747]Manitoba asserts that it is possible to ascertain the purpose of these two Acts from the wording of the statutes themselves. The Half-Breed Land Grant Act, 1879 addressed the issues of parental consent when both parents were no longer alive and spousal consent if the grantor was married. As well, it addressed empowering another to undertake acts by power of attorney when the grantor of the power of attorney was under 21 years. The legislation simply ensured that the same safeguards of parental consent and judicial scrutiny applied whether the transaction was done directly or through an attorney. The

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Half-Breed Lands Act, 1883 clarified the situation for illegitimate minors and unmarried orphans.

[748] Manitoba asserts that these two Acts simply deal with the formalities of contract execution and thus fall squarely within the province’s jurisdiction over property and civil rights.

The Quieting Titles Act, 1881

[749]The plaintiffs allege this Act was unconstitutional in that it set aside all age restrictions in respect of the sale of interests in the land described in section 31

of the Act, which, since 1878, had been patented regardless of the patentee’s age. As well, it was unconstitutional in that it retroactively validated all previous sales regardless of whether they had been performed in accordance with the law.

[750]The preamble of this Act states that there had been a difference of opinion as to the proper interpretation of statutes. The confusion appears to have arisen over the status of beneficial interests and what legal regime would apply to them. The evidence indicates that there appears to have been a difference of opinion expressed between members of the Law Students Society and the obiter dicta of Wood C.J. in In re Thibeaudeau (1879), T.W. 149, a

decision of the Manitoba Queen’s Bench.

[751]This Act in section I provided that conveyances by deed prior to patent vested the beneficial estate, i.e., that such transaction would not thereafter be

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automatically voidable. Other sections of the Act appeared also to deal with technical issues concerning dealings in land or interests in land.

[752]Manitoba asserts that this Act did not impact on any interest in land but simply clarified the legal requirements if individuals chose to deal with their land.

The Quieting Titles Act, 1885

[753]The plaintiffs assert this Act was unconstitutional in that it further validated various conveyances which had been carried out.

[754]This Act was passed on the same day as was the legislation which

introduced the Torrens system. Manitoba argues that this Act’s objective was to cure technical defects, not substantive defects. In Barber v. Proudfoot, [1889] Western Law Times 144, a decision of the Manitoba Court of Queen’s Bench en banc, Taylor C.J., for the court, in dealing with this Act, wrote, at p. 146:

The object of the statute is to cure defects, irregularities and omissions in connection with the doing of something authorized by the court to be done, not to validate proceedings wholly unauthorized.

[755] And in Hardy v. Desjarlais (1892), 8 M. R. 550, a decision of the Manitoba Queen’s Bench en banc, Killam J., at p. 567, wrote (again, in reference to this Act as follows):

…But, at any rate, it appears to me that what are aimed at are informalities of practice and omissions not apparent on the face of the proceedings, or of a trifling and unimportant character.

[756]Manitoba asserts that the purpose of the latter sections of this Act was to put in place a regime to allow the Registrar of Land Titles to do his job, that is,

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to be able to rely on documents and recitals as conclusive proof. But, in the event of a dispute, such documents or recitals were prima facie evidence only against all parties in court. While the plaintiffs argue that “all parties” excludes the original grantee, Manitoba submits that there is nothing in the words of the statute or in the case law that supports such an interpretation.

The Decrees and Orders Act, 1884

[757]The plaintiffs assert this statute was unconstitutional in that it retroactively validated irregular decrees or orders previously given.

The Payment of Securities Act, 1885

[758]The plaintiffs assert this Act was unconstitutional solely because it was a law of special application which trenched on subsection 91(24) of the

Constitution Act, 1867. There is no reference in the plaintiffs’ argument to this Act.

[759]While the plaintiffs impugn these two statutes in their statement of claim, they provide no analysis in their argument as to why these Acts are alleged to be unconstitutional.

[760]The former is a one-section Act which regularizes orders signed by a court official rather than a judge who pronounced the order. The latter directed that investments that had been authorized by court order but which could not be realized upon were to be made good through the provincial treasury.

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[761]Manitoba argues that both Acts fall squarely within its jurisdiction over the administration of civil justice. There is, as indicated, no argument by the plaintiffs to the contrary or otherwise.

[762]Generally, the plaintiffs assert that every enactment under which, and to the extent that, taxation was imposed in respect of section 31 lands prior to grant or patent is unconstitutional.

[763]The plaintiffs seek a declaration that every enactment under which, and to the extent that, taxation was imposed in respect of section 31 lands prior to grant is unconstitutional. The plaintiffs do not specify which statutes are at issue.

[764]Manitoba argues that a finding of unconstitutionality cannot be made in a vacuum. A specific statute or section must be identified and a basis advanced for the argument. Manitoba says that since the plaintiffs have not done so, this portion of the claim ought to be dismissed.

[765]In support of their argument that Manitoba’s taxation laws were

unconstitutional, the plaintiffs relied upon a letter from the Deputy Minister of Justice to the Deputy Minister of the Interior dated April 18, 1887,213 which discussed tax sales and, in particular, “whether sales of unpatented Dominion lands for taxes, and the deeds of such lands from the proper municipal officers

213Exhibit 1-1755

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to the purchasers of such sales are valid, and whether such deeds should be recognized by your Department….”

[766]In that letter, the Deputy Minister of Justice reports the opinion of the Minister of Justice on the matter as follows:

Since the receipt of your letter I have brought the matter before the Minister of Justice and I have now the honour to state by his direction that in his opinion the Crown may properly and should refuse to recognize sales and deeds for taxes of lands belonging to it, whether Dominion Lands or others, and that, as a matter of policy and convenience, it should be made a rule, that no such sales or deeds shall be recognized. If a different rule was hitherto obtained in the Department, as I understand is the case, it would seem to be but right that public notice should be given of the proposed change.

[767]Manitoba argues that letters expressing legal opinions are of no evidentiary weight. As well, Manitoba submits that the effect of the Minister of

Justice’s conclusion was that patents would issue in the name of the original grantee and any legal issues arising as a result of that would be dealt with in Manitoba under provincial law.

[768]Moreover, in my view, this letter did not address the issue of constitutionality but rather of policy. It dealt with the practical question whether the patent to land ought to issue in the name of the original grantee or in the name of the person who had obtained the beneficial interest after the tax sale. The letter did point out that the Manitoba municipal legislation never dealt with

the legal interest in the land and transferred to the purchaser only “such interest as the Crown may have given or parted with”.

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[769]In any event, Manitoba submits that a full answer to the tax question is found in Re Mathers (1891), 7 M. R. 434, a decision of the Manitoba Court of

Queen’s Bench en banc. This issue is addressed not only in Re Mathers, supra but in other cases which have clearly held that one party may hold the legal estate in land while another can hold a beneficial interest which is an asset separate from the legal estate.

[770]Manitoba agrees that part of the pith and substance analysis is not only to determine the purpose of the legislation but also to consider its effect.

[771]Manitoba submits that the evidence of its witness Mr. Davidson provides valuable insight into the exercise of determining effect.

[772]As set out in the Agreed Trial Facts,214 genealogical information was obtained on 16 of the 17 individual plaintiffs. Of those 16, 4 were found to have no ancestors entitled to benefits under section 31. Of the remaining 12, information was located in respect of 23 section 31 transactions. One land titles file could not be located.

[773]Manitoba acknowledges that Mr. Davidson’s analysis of these transactions

does not provide a statistically relevant sample. Still, his evidence provides, Manitoba says, an interesting snapshot of the effect of the Manitoba legislation.

214Exhibit 2

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[774] Manitoba asserts that the statutory requirement for transfer of section 31 interests as set out in the legislation was amply demonstrated by Mr. Davidson’s evidence. Deeds properly executed and witnessed, parental consents, spousal consents and certification by judicial officers are all apparent on the face of the Land Titles documents. Queen’s Bench orders and certifications confirming payment of money into court were also located. Manitoba submits there is nothing in the evidence to suggest that the registrar of land titles understood any Manitoba legislation as giving him the power to approve obviously illegal transactions. Manitoba says that the evidence is entirely to the contrary, showing a high degree of scrutiny before the approval of a Torrens title.

[775]As well, some decided cases provide insight into the effect of the legislation.

[776]In Barber, supra, a Queen’s Bench order had been obtained in 1880 permitting the father to sell his child’s land for $500.00. The father sold the land

for a lesser amount with the balance in chattels. When an application was brought for a certificate of title under The Real Property Act, the infant was served and objected. The Queen’s Bench, en banc, decided the original transaction was invalid and stated that The Quieting Titles Act, 1885, was solely directed to irregularities.

[777] In Hardy, supra, to which I earlier referred, the defendant sought to set aside a sale purportedly made under a Queen’s Bench order. The Queen’s Bench

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en banc commented upon several deficiencies in the transaction and invalidated it. It concluded that The Quieting Titles Act, 1885 which was Manitoba legislation under consideration in that case dealt with technical matters but did not in any way validate that which was “wholly illegal and void”.

[778]In Robinson v. Sutherland (1893), 9 M. R. 199 (Q.B.), the issue was the meaning of The Half-Breed Lands Act, 1883. Bain J. narrowly construed that Act holding in part that the transaction had to be voluntary on the part of the section 31 recipient or it was voidable. He wrote, at p. 202:

…that the assignment to the defendant, and the power of attorney therein, were not binding on the infant when she came of age and were voidable at her option, and that she has avoided them….

[779]Manitoba submits that the effect of the impugned provincial legislation was to create a rigorous regulatory regime for the conveyance of section 31 interests, which interests were completely alienable at common law.

[780]Thus, says Manitoba, the legislation impugned by the plaintiffs is constitutional. Its pith and substance was contract law. Its purpose was to supplement the common law by imposing a more formal and rigorous contract process. None of the legislation validated illegal transactions. None removed access to the courts. The legislation, it says, was in all respects constitutional under subsection 92(13) and to the minor extent it dealt with court procedure, under subsection 92(14).

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[781]In impugning the Manitoba legislation, the plaintiffs also argued that the legislative jurisdiction in respect of the land granted under section 31 of the Act

fell within the exclusive jurisdiction of Canada under subsection 91(1A) (formerly subsection 91(1)) of the Constitution Act, 1867 and/or within subsection 91(24) of the Constitution Act, 1867.

[782]Subsection 91(1A) gives Parliament legislative authority over “the public debt and property”.

[783]Manitoba conceded that this provision enabled Canada to enact laws in respect of federally owned property and exempted federally owned property from provincial laws that might otherwise be applicable, such as registration and execution laws.

[784]Manitoba acknowledged that the section 31 lands in this case remained legally vested in Her Majesty the Queen in right of Canada until patent issued

and only then would it no longer be subject to Parliament’s jurisdiction.

[785]Manitoba argued, however, that legal and beneficial interests in land can be held by different persons. Manitoba admitted it had no jurisdiction to

legislate in respect of Canada’s legal title but said there is an abundance of precedent recognizing provincial jurisdiction over beneficial interests.

[786]Manitoba again relies on Re Mathers which it argues is a case directly on point as it dealt with provincial jurisdiction in respect of beneficial interests in

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section 31 lands. The legal question before the court was whether Manitoba had the authority to tax section 31 grants before the actual patents had issued; i.e., was land legally vested in Her Majesty the Queen in right of Canada outside of the constitutional competence of Manitoba. The court ruled that Manitoba’s Municipal Act, which permitted municipalities to tax beneficial interests in certain situations, was constitutional. Bain J., for the court, wrote, at p. 442:

…Ross was entitled to share in the grant of the 1,400,000 acres, and, when the particular portion of the grant that was to go to him in satisfaction of his claim was finally ascertained and determined, his right to that particular portion became complete, and nothing remained but for the Crown to issue the patent to him for the specific parcel of land. He was, therefore, it seems to me, precisely in the same position he would have been in had he agreed to purchase this piece of land from the Crown, and had paid the purchase money therefor, and had become entitled to the patent; and, while the legal estate remained vested in the Crown, the beneficial interest in the land belonged to and was vested in him.

[787]Further, on p. 442, Bain J. wrote:

…I am of opinion that the beneficial interest that Ross had in the lands allotted to him was a property or interest that it was competent for the Provincial Legislature to make liable to taxation, if it saw fit to do so.

[788]Other cases have held similarly to Re Mathers. In Calgary & Edmonton Land Co. v. Attorney-General of Alberta (1911), 45 Can. S.C.R. 170, Davies J. wrote, at pp. 179-80:

The legal title, it is true, still remained in the Crown until the patent passed, but the equitable title had become vested in the appellants to whom it had been transferred by the railway company. The interest of the Crown whatever it might have been could not be taxed, but the beneficial interest of the appellants certainly was not exempted under or by virtue of the section of the “British North America Act, 1867,” under review. … The whole beneficial interest having passed to the company and the bare legal estate remaining in the Crown the land no longer can be said to be land belonging to Canada within the meaning of the section.

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[789]In Smith v. Rural Municipality of Vermilion Hills (1914), 49 Can. S.C.R. 563, Brodeur J., in reference to Calgary & Edmonton Land Co., supra, wrote, at p. 576:

That case determined that the provincial legislatures had the right and the power to authorize the taxation of beneficial or equitable interests in lands wherein the Crown in the right of the Dominion of Canada holds some interest and the legal estate.

That decision was affirmed by the Privy Council, [1916] 2 A.C. 569.

[790]As well, in Attorney-General of British Columbia v. Attorney-General of Canada, [1889] 14 A.C. 295, a decision of the Privy Council, the issue was whether the Dominion Government or British Columbia had jurisdiction over the mineral rights on railway belt lands owned by Canada. The Privy Council held that British Columbia had a beneficial interest in the mineral rights even though legal title rested with Canada and thus had constitutional jurisdiction to deal with those rights.

[791]These cases, Manitoba submits, establish that when the federal Crown holds the legal estate or interest in land but another party holds the beneficial interest, the two interests are treated separately for constitutional purposes.

[792]Manitoba submits, therefore, that to the extent its legislation dealt with beneficial interests in land, there is binding precedent recognizing provincial constitutional authority.

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[793]The plaintiffs attempted to distinguish Re Mathers arguing that jurisdiction to legislate in respect of the beneficial interest could not rest with Manitoba since that would mean that Canada thereafter had no authority to organize a new allotment, indeed, no authority to proceed with patenting of the land.

[794]Manitoba submits this argument is incorrect. It says that to the extent the

beneficial interest crystallized after allotment process “numbers one and two”, Manitoba had legislative jurisdiction over those interests. The jurisdiction was always there; what disappeared on cancellation of the allotment was the beneficial interest. Having jurisdiction over beneficial interests in no way interferes with the ability of the legal title holder (Canada) to issue patents. It was not constitutional jurisdiction over the legal title which passed to Manitoba pre-patent; rather, it was constitutional jurisdiction over the beneficial interest and much binding legal precedent recognizes such jurisdiction.

[795]The plaintiffs also argued that Manitoba’s legislation was unconstitutional

by reason of subsection 91(24) of the Constitution Act, 1867. Manitoba asserts that subsection 91(24), as a head of power, is no different than any other head of power. A pith and substance analysis has to be undertaken to determine the core meaning and effect of the legislation. Manitoba says the impugned legislation which is directed at “half-breeds” is not sufficient to determine its pith and substance. As the Supreme Court of Canada stated in

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Kitkatla Band, supra (at p. 177, para. 66), “The mere mention of the word “aboriginal” in a statutory provision does not render it ultra vires the province.”

[796]While not accepting the proposition that the lands in question were within federal jurisdiction by virtue of subsection 91(24), Manitoba submits that its legislation was nonetheless constitutional as it did not impact or encroach upon the core of aboriginality. Its legislation was not directed to the occupation of the land or to the activities that could be done on it. Nor did it impact on culture.

[797]Manitoba argues that it was faced with a practical reality. Section 31 created a special benefit, a land grant, to one class of people. Under the common law, the people in that class were entitled to dispose of their interest in the benefit if they so desired. The evidence is that sales of interests in section 31 land were occurring demonstrating a willingness on the part of persons entitled thereunder to dispose of their interest. Rather than leave the matter solely to be governed under the common law, Manitoba passed legislation which dealt with the formalities of contract law and the legal issues as they arose pertaining thereto. Manitoba asserts that its legislation was wholly in respect of contract law and thus did not encroach on federal jurisdiction.

[798]Moreover, I have previously decided in these reasons that the Métis were not Indians in respect of section 31 of the Act. That finding was based upon the

Supreme Court’s decision in Blais and the evidence in this case which

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overwhelmingly establishes that the Métis were not Indians at the time of passage of nor for the purposes of the Act, including section 31.

[799]While Blais considered whether the Métis were Indians under section 13 of the Natural Resources Transfer Agreement of 1930, and the question now under discussion is whether they are Indians under subsection 91(24) of the

Constitution Act, 1867, I conclude for the reasons previously stated that the Métis were not Indians within the meaning of subsection 91(24) of the Constitution Act, 1867 and the land in question was not land reserved for Indians within the meaning of that subsection.

[800]The plaintiffs have also argued that the Manitoba legislation is unconstitutional as it amounted to an amendment or alteration of the Act

contrary to section 6 of the Constitution Act, 1871.

[801]Manitoba acknowledges it had no authority to legislate in a manner inconsistent with the provisions of the Act, but says it did not do so. It reiterates that the impugned legislation (other than the taxation legislation) was in pith and substance contract law and did not deal with the legal estate or interest in the land, or as regards two of the impugned Acts related to the administration of justice.

[802]And, as for any taxation legislation, none of which was identified or

argued with specificity by the plaintiffs, such taxation was in respect of one’s beneficial interest, not the legal estate or interest, in land.

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[803]Thus, Manitoba says that its legislation is intra vires and hence constitutional.