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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165 A.C.W.S.
(3d) 820
Manitoba Métis Federation Inc. v. Canada (Attorney General)
Manitoba Metis Federation Inc., Yvon Dumont, Billyjo de la Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allarie, Celia Klassen, Alma Belhumeur, Stan
Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson (Plaintiffs) and Attorney General of Canada and Attorney General of Manitoba (Defendants)
Manitoba Court of Queen's Bench
A.D. MacInnes J.
Judgment: December 7, 2007
Docket: Winnipeg Centre CI 81-01-01010
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Counsel: Thomas R. Berger, Q.C., James R. Aldridge, Q.C., Harley I. Schachter, M. Bartley, for Plaintiffs
Robert A. Dewar, Q.C., Paul R. Anderson, Cary D. Clark, for Defendant, Attorney General of Canada
Heather S. Leonoff, Q.C., Jayne L. Kapac, for Defendant, Attorney General of Manitoba
Subject: Civil Practice and Procedure; Public; Constitutional; Property
Civil practice and procedure --- Limitation of actions — Actions involving Crown — Miscellaneous actions
Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Manitoba suffered
historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry
into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "halfbreeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed — Limitation of Actions Act applied — Time fame material to plaintiffs' action was approximately late 1869 to 1890 — No court
proceedings were commenced in respect of ss. 31 and 32 of Manitoba Act until 1981 — Limitation of actions statutes were
known to law in 1870 and thereafter — Plaintiffs sought declaratory relief which was claim for equitable relief — Excepting
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A.C.W.S. (3d) 820
issue of constitutional validity and challenge, there was no question that plaintiffs' action was outside of statutorily mandated
limitation period — Residents at time, or their leaders, would have known of their rights under ss. 31 and 32, and would have
known that which was actually transpiring in respect of administration and implementation of those sections, including federal and provincial legislation and enactments — It could be inferred that they chose not to challenge or litigate in respect of ss.
31 and 32, knowing of sections, of what those sections were to provide them, and of their rights to litigate.
Civil practice and procedure --- Limitation of actions — Actions involving Crown — Laches and acquiescence
Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into
Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent
130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds"
entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed — Limitation of
Actions Act applied — Equitable defences of laches and acquiescence were available, if circumstances so existed, notwithstanding existence of limitation periods — Doctrine of laches and acquiescence was applicable and amounted to successful
defence to plaintiffs' claim — None of explanations for delay constituted justifiable explanation at law for those entitled under ss. 31 and 32, whether individually or collectively, to have sat on their rights until 1981 — Nor did this delay in exercise
of their rights square with evidence as to conduct of individuals and larger community in respect of steps taken when it was
thought that there had been breach of s. 22 and/or s. 23 of Manitoba Act — In law, this amounted to acquiescence — Delay
resulted in circumstances that made prosecution of action unreasonable — Plaintiffs were seeking declaratory relief, an equitable relief — One who seeks equity must do so promptly; that had not been done in this case.
Aboriginal law --- Practice and procedure — Parties — General principles
Standing — Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba
suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's
entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with
governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to
represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "halfbreeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed on other
grounds — Although it was conceded that individual plaintiffs had standing, MMF did not have standing — MMF's representative status was in nature of dealing with governments and Crown agencies in political sense — This was not in itself
synonymous with or equal to legal standing — Canada had brought unsuccessful motion to strike statement of claim, and it
was not clear that decision was, or was intended to be, final decision in respect of issue of standing — Plaintiffs failed to establish preconditions for operation of issue estoppel, which was first of two-step analysis as to whether issue estoppel should
be applied — There were many factors that supported exercise of discretion against application of doctrine of issue estoppel
— MMF was not by its membership co-extensive with those individuals who were, or their descendants who perhaps were,
entitled under ss. 31 and 32 — There has been further development of law regarding public interest standing, involving direction from Supreme Court of Canada wherein court opted for restrictive approach to application of relevant criteria — Not
only was there another reasonable and effective way to bring issues before court other than by MMF, this had in fact been
done.
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Civil practice and procedure --- Judgments and orders — Res judicata and issue estoppel — Issue estoppel — Miscellaneous
issues
Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into
Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent
130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds"
entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed on other grounds
— Although it was conceded that individual plaintiffs had standing, MMF did not have standing — MMF's representative
status was in nature of dealing with governments and Crown agencies in political sense — This was not in itself synonymous
with or equal to legal standing — Canada had brought unsuccessful motion to strike statement of claim, and it was not clear
that decision was, or was intended to be, final decision in respect of issue of standing — Plaintiffs failed to establish preconditions for operation of issue estoppel which was first of two-step analysis as to whether issue estoppel should be applied —
There were many factors that supported exercise of discretion against application of doctrine of issue estoppel — MMF was
not by its membership co-extensive with those individuals who were, or their descendants who perhaps were, entitled under
ss. 31 and 32 — There has been further development of law regarding public interest standing, involving direction from Supreme Court of Canada wherein court opted for restrictive approach to application of relevant criteria — Not only was there
another reasonable and effective way to bring issues before the court other than by MMF, this had in fact been done.
Constitutional law --- Procedure in constitutional challenges — Standing
Civil practice and procedure --- Parties — Standing
The plaintiff Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that the Métis people of Manitoba suffered an historic injustice - the loss of a land base they were to have received under the Manitoba Act (1870) upon
Manitoba's entry into Canadian Confederation. The plaintiffs brought an action for declaratory relief for the purpose of assisting them in future negotiations with the governments of Canada and Manitoba to achieve a land claims agreement. The MMF
was a Manitoba corporation purporting to represent 130,000 Métis people resident in Manitoba. The individual plaintiffs alleged they were descendents of persons referred to in the Act as "half-breeds" entitled to land pursuant to s. 31 of the Act, and
to land and other rights under s. 32 of the Act. Section 31 provided for the dividing up of 1.4 million acres of land and the
granting of lots or tracts of land to the children of the half-breed heads of families residing in the province at the relevant
time. Section 32 addressed the quieting of titles and assuring to the settlers of the province the peaceable possession of lands
already held by them at the time. The plaintiffs sought declarations that certain statutes and orders in council were ultra vires
the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional; that Canada
failed to fulfill its obligations to the Métis under ss. 31 and 32 pursuant to undertakings given by the Crown; that Manitoba,
by enacting certain legislation and imposing taxes on lands referred to in s. 31 prior to the grant of those lands, unconstitutionally interfered with fulfilment of obligations under s. 31; and, that there was a treaty made in 1870 between the Crown in
right of Canada and the Provisional Government and people of Red River.
Held: The action was dismissed.
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Canada and Manitoba conceded that the individual plaintiffs had standing. The MMF, however, did not have standing. The
MMF's representative status was in the nature of dealing with governments and Crown agencies in a political sense. While
that may have had some relevance to and bearing upon the question of standing in this litigation, it was not in itself synonymous with or equal to legal standing. Considering judgments dealing with an unsuccessful motion by Canada to strike the
statement of claim in this action, it was not clear that the decision was, or was intended to be, a final decision in respect of the
issue of standing. The fundamental issues before the court had changed. The plaintiffs failed to establish the preconditions for
the operation of issue estoppel, which was the first of a two-step analysis as to whether issue estoppel should be applied.
There were many factors in this case that supported an exercise of discretion against the application of issue estoppel. The
MMF was not by its membership co-extensive with those individuals who were, or their descendants who perhaps were, entitled under ss. 31 and 32 of the Manitoba Act. There has been a further development of the law as to entitlement to public interest standing in litigation, involving direction from the Supreme Court of Canada wherein the court opted for a restrictive
approach to the application of the relevant criteria. And, not only was there another reasonable and effective way to bring the
issues before the court other than by the MMF, this had in fact been done. Seventeen individual plaintiffs were parties in this
action and the defendants conceded that they had standing.
The Limitation of Actions Act applied, and the action was dismissed on that basis. The time frame material to the plaintiffs'
action was approximately late 1869 to 1890. No court proceedings were commenced in respect of ss. 31 and 32 of the Manitoba Act until 1981. 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. In the present action, the plaintiffs sought declaratory relief, which was a
claim for equitable relief. Excepting the issue of constitutional validity and challenge, there was no question that the plaintiffs' action was outside the limitation period statutorily mandated by the the Limitation of Actions Act. On the evidence in
this case, the residents at the time, or their leaders, would have known of their rights under ss. 31 and 32, 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. It could be inferred that they chose not to challenge or litigate in respect
of ss. 31 and 32, knowing of the sections, of what those sections were to provide them, and of their rights to litigate.
If it was incorrect to conclude that the Limitation of Actions Act applied, the only aspect of the plaintiff's action that would
not be statute barred was their request for a declaration pertaining to the constitutional validity of the enactments listed in
certain paragraphs of their statement of claim, including the effect of 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.
Both Canada and Manitoba relied on the equitable defence of laches and acquiescence. These defences were available, if the
circumstances so existed, notwithstanding the existence of limitation periods pursuant to the Limitation of Actions Act. The
doctrine of laches and acquiescence was applicable and amounted to a successful defence to the plaintiffs' claim. None of the
explanations for the delay constituted justifiable explanation at law for those entitled under ss. 31 and 32, whether individually or collectively, to have sat on their rights until 1981. Nor did this delay in the exercise of their rights square with the evidence as to the conduct of individuals and the larger community in respect of the steps taken when it was thought that there
had been a breach of s. 22 and/or s. 23 of the Manitoba Act. In law, this amounted to acquiescence.
The delay resulted in circumstances that made the prosecution of the action unreasonable. There was incompleteness in the
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A.C.W.S. (3d) 820
evidence. Understanding the social context and culture at the material time would be critical to undertaking a pith and substance analysis in considering the constitutionality of legislation. There were doubtless different societal attitudes and values
than was the case over 125 years ago, including changes in the common law. Had there been a successful attack on either
basis of unconstitutionality or the doctrine of paramountcy, the remedy would have been much more easily determined and
applied. At the material time, the available land was owned by Canada. In 1930, Canada transferred control over ungranted
lands to Manitoba and thus lost, to a significant extent at least, an asset that it could have used to settle the claim if a timely
and successful attack had been advanced. Manitoba also suffered similar prejudice with respect to the remedy now available.
The plaintiffs were seeking declaratory relief, an equitable relief. One who seeks equity must do so promptly; that could not
be said in the present case.
There was no treaty or agreement negotiated between the Red River delegates and the government representatives at the relevant time. There was an Act of Parliament of Canada, which was recognized as a constitutional document. Neither ss. 31 or
32 of the Manitoba Act, considered on a historical, contextual or purposive basis, pertained to or was intended for the protection of minorities. The Métis of the settlement, including their children to whom the s. 31 grants were to be made, did not
hold at July 15, 1870, or at any time prior, Aboriginal title to the lands, which were to become Manitoba and serve as the
source for the s. 31 grants. Placed in historic context, the evidence was overwhelming that the Métis were not Indians, and
did not consider themselves to be Indians. There was no fiduciary relationship between the Métis (including the Métis children) and Canada in respect of the land that 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 made under s. 31. There was no evidence
that Parliament intended by s. 32 to create a fiduciary relationship between Canada and the residents who fell within that section. The doctrine of honour of the Crown had no relevance to the events that concluded with the passage of the Manitoba
Act, or to its interpretation or implementation. The Crown's duty was a public law duty. There was no basis for a finding, let
alone a declaration, of unconstitutionality respecting the impugned Manitoba legislation. With two exceptions acknowledged
by Canada, none of the impugned federal enactments were contrary to ss. 31 and 32 of the Manitoba Act. There was no functional inconsistency between the federal enactment and the provincial legislation. Simultaneous compliance was easily possible. Whether or not to exercise the power of reservation or disallowance was wholly the unfettered discretion of the Governor
General in Council and was not subject to review or comment by the court. Canada was given a broad discretion in administering the land grant provided under the Act. It was not a possible interpretation of s. 31 that this section was to ensure a perpetual Métis land base. There was no claim advanced or evidence to support a claim of bad faith on the part of Canada in the
ultimate designation of the lands. There was no basis in law for any finding of liability on the part of Canada respecting the s.
31 lands.
Cases considered by MacInnes J.:
A. (C.) v. C. (J.W.) (1998), 1998 CarswellBC 2370, 42 R.F.L. (4th) 427, 43 C.C.L.T. (2d) 223, 60 B.C.L.R. (3d) 92, 166
D.L.R. (4th) 475, 113 B.C.A.C. 248, 184 W.A.C. 248, 13 Admin. L.R. (3d) 157 (B.C. C.A.) — referred to
Air Canada v. British Columbia (Attorney General) (1986), 1986 CarswellBC 369, 1986 CarswellBC 762, [1987] 1
W.W.R. 304, [1986] 2 S.C.R. 539, 32 D.L.R. (4th) 1, 72 N.R. 135, 8 B.C.L.R. (2d) 273, 22 Admin. L.R. 153 (S.C.C.) —
distinguished
Amax Potash Ltd. v. Saskatchewan (1976), 1976 CarswellSask 76, [1976] 6 W.W.R. 61, 11 N.R. 222, 71 D.L.R. (3d) 1,
[1977] 2 S.C.R. 576, 1976 CarswellSask 115 (S.C.C.) — referred to
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Angle v. Minister of National Revenue (1974), 1974 CarswellNat 375, 28 D.T.C. 6278, 1974 CarswellNat 375F, [1975] 2
S.C.R. 248, 47 D.L.R. (3d) 544, 2 N.R. 397 (S.C.C.) — referred to
Apotex Inc. v. Canada (Attorney General) (2000), 188 D.L.R. (4th) 145, 255 N.R. 319, 24 Admin. L.R. (3d) 279, 6
C.P.R. (4th) 165, 2000 CarswellNat 889, [2000] 4 F.C. 264, 180 F.T.R. 278, 2000 CarswellNat 3266 (Fed. C.A.) — referred to
Apotex Inc. v. Merck & Co. (2002), 2002 CarswellNat 1188, 2002 CAF 210, 2002 CarswellNat 2310, 226 F.T.R. 281
(note), 2002 FCA 210, 291 N.R. 96, 214 D.L.R. (4th) 429, 19 C.P.R. (4th) 163, [2003] 1 F.C. 242 (Fed. C.A.) — referred to
Apsassin v. Canada (Department of Indian Affairs & Northern Development) (1995), (sub nom. Blueberry River Indian
Band v. Canada (Department of Indian Affairs & Northern Development)) 130 D.L.R. (4th) 193, (sub nom. Blueberry
River Indian Band v. Canada (Department of Indian Affairs & Northern Development)) [1995] 4 S.C.R. 344, (sub nom.
Blueberry River Indian Band v. Canada (Department of Indian Affairs & Northern Development)) [1996] 2 C.N.L.R. 25,
(sub nom. Blueberry River Indian Band v. Canada (Minister of Indian Affairs & Northern Development)) 190 N.R. 89,
(sub nom. Blueberry River Indian Band v. Canada (Minister of Indian Affairs & Northern Development)) 102 F.T.R. 160
(note), 1995 CarswellNat 1279, 1995 CarswellNat 1278 (S.C.C.) — considered
Ardoch Algonquin First Nation & Allies v. Ontario (2000), 255 N.R. 1, (sub nom. Lovelace v. Ontario) 188 D.L.R. (4th)
193, (sub nom. Lovelace v. Ontario) [2000] 4 C.N.L.R. 145, 134 O.A.C. 201, (sub nom. Lovelace v. Ontario) 75 C.R.R.
(2d) 189, (sub nom. Lovelace v. Ontario) [2000] 1 S.C.R. 950, 2000 SCC 37, 2000 CarswellOnt 2460, 2000 CarswellOnt
2461, (sub nom. Lovelace v. Ontario) 48 O.R. (3d) 735 (headnote only) (S.C.C.) — referred to
Arsenault-Cameron v. Prince Edward Island (2000), 2000 SCC 1, 2000 CarswellPEI 4, 2000 CarswellPEI 5, 70 C.R.R.
(2d) 1, 181 D.L.R. (4th) 1, 184 Nfld. & P.E.I.R. 44, 559 A.P.R. 44, 249 N.R. 140, [2000] 1 S.C.R. 3 (S.C.C.) — referred
to
B. (T.L.) v. C. (R.E.) (2000), 2000 CarswellMan 461, 2000 MBCA 83, [2000] 11 W.W.R. 436, 150 Man. R. (2d) 34, 230
W.A.C. 34, 15 C.P.C. (5th) 372 (Man. C.A.) — referred to
Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin.
L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22 (S.C.C.) — referred
to
Bank of America National Trust & Savings Assn. v. Bank of Amador County (1933), 28 P.2d 86, 135 Cal. App. 714 (U.S.
Dist. Ct. App.) — considered
Barlow v. Canada (2000), 2000 CarswellNat 372, 186 F.T.R. 194 (Fed. T.D.) — referred to
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Barrett v. Winnipeg (City) (1891), 7 Man. R. 273 (Man. Q.B.) — considered
Barrett v. Winnipeg (City) (1891), 8 Man. R. 3 (Man. Q.B.) — considered
Barrett v. Winnipeg (City) (1892), 5 Cart. B.N.A. 32, 1892 CarswellMan 3, [1892] A.C. 445, C.R. [10] A.C. 193 (Manitoba P.C.) — referred to
Benoit v. Canada (2003), [2003] 3 C.N.L.R. 20, 228 D.L.R. (4th) 1, [2003] G.S.T.C. 101, 2003 FCA 236, 2003 CarswellNat 1660, 2003 CAF 236, 2003 CarswellNat 1704, 307 N.R. 1, 242 F.T.R. 159 (note), (sub nom. R. v. Benoit) 2003
D.T.C. 5366, (sub nom. R. v. Benoit) 2003 G.T.C. 1659 (Fed. C.A.) — referred to
Bentley v. Peppard (1903), 33 S.C.R. 444, 1903 CarswellNS 77 (S.C.C.) — considered
Bertrand v. Dussault (1909), 77 D.L.R. (3d) 445 at 458, 1909 CarswellMan 166 (Man. Co. Ct.) — referred to
Blackwater v. Plint (2003), 192 B.C.A.C. 1, 315 W.A.C. 1, [2004] 3 W.W.R. 217, 21 B.C.L.R. (4th) 1, 2003 CarswellBC
3042, 2003 BCCA 671, 20 C.C.L.T. (3d) 207, 30 C.C.E.L. (3d) 1, 235 D.L.R. (4th) 60 (B.C. C.A.) — referred to
Blackwater v. Plint (2005), 216 B.C.A.C. 24, 356 W.A.C. 24, 48 B.C.L.R. (4th) 1, [2005] 3 S.C.R. 3, 258 D.L.R. (4th)
275, [2005] R.R.A. 1021, [2006] 3 W.W.R. 401, 2005 SCC 58, 2005 CarswellBC 2358, 2005 CarswellBC 2359, 35
C.C.L.T. (3d) 161, 46 C.C.E.L. (3d) 165, 339 N.R. 355 (S.C.C.) — referred to
Borowski v. Canada (Minister of Justice) (1981), [1982] 1 W.W.R. 97, 24 C.R. (3d) 352, 24 C.P.C. 62, 12 Sask. R. 420,
39 N.R. 331, 64 C.C.C. (2d) 97, 130 D.L.R. (3d) 588, 1981 CarswellSask 167, [1981] 2 S.C.R. 575, 1981 CarswellSask
181 (S.C.C.) — referred to
Borowski v. Canada (Attorney General) (1989), [1989] 3 W.W.R. 97, [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, 92 N.R.
110, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 1989 CarswellSask 241, 1989 CarswellSask
465 (S.C.C.) — referred to
British Columbia (Attorney General) v. Canada (Attorney General) (1889), 1889 CarswellNat 13, (1889) L.R. 14 App.
Cas. 295, 14 A.C. 295, C.R. [10] A.C. 36 ((Canada P.C.)) — considered
British Columbia v. Canadian Forest Products Ltd. (2004), 321 N.R. 1, 8 C.E.L.R. (3d) 1, 24 C.C.L.T. (3d) 161, 28
B.C.L.R. (4th) 195, 2004 SCC 38, 2004 CarswellBC 1278, 2004 CarswellBC 1279, [2004] 9 W.W.R. 1, [2004] 2 S.C.R.
74, 198 B.C.A.C. 1, 240 D.L.R. (4th) 1 (S.C.C.) — referred to
Brophy v. Manitoba (Attorney General) (1894), 1894 CarswellMan 3, (sub nom. Certain Statutes of the Province of
Manitoba Relating to Education, Re) 22 S.C.R. 577 (S.C.C.) — considered
Brophy v. Manitoba (Attorney General) (1895), 1895 CarswellMan 2, [1895] A.C. 202, 5 Cart. B.N.A. 156, C.R. [11]
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A.C.W.S. (3d) 820
A.C. 56 (Manitoba P.C.) — referred to
Calder v. British Columbia (Attorney General) (1973), [1973] S.C.R. 313, [1973] 4 W.W.R. 1, 34 D.L.R. (3d) 145, 1973
CarswellBC 83, 1973 CarswellBC 263 (S.C.C.) — referred to
Calgary & Edmonton Land Co. v. Alberta (Attorney General) (1911), 45 S.C.R. 170 (S.C.C.) — considered
Canada (Attorney General) v. Fonseca (1888), 5 Man. R. 173 (Man. C.A.) — considered
Canada (Attorney General) v. Fonseca (1889), 17 S.C.R. 612, 1889 CarswellMan 2 (S.C.C.) — referred to
Canada (Attorney General) v. Higbie (1945), [1945] S.C.R. 385, [1945] 3 D.L.R. 1, 1945 CarswellBC 89 (S.C.C.) — referred to
Canada (Canadian Wheat Board) v. Manitoba Pool Elevators (1952), (sub nom. Canada (Attorney General) v. Hallet &
Carey Ltd.) [1952] 3 D.L.R. 433, 1952 CarswellMan 25, [1952] 1 T.L.R. 1408, 96 S.J. 395, 6 W.W.R. (N.S.) 23, (sub
nom. Canada (Attorney General) v. Hallet & Carey Ltd.) [1952] A.C. 427 (Manitoba P.C.) — referred to
Canadian Civil Liberties Assn. v. Canada (Attorney General) (1990), 45 Admin. L.R. 94, 74 O.R. (2d) 609, 72 D.L.R.
(4th) 742, 1990 CarswellOnt 416, 45 C.P.C. (2d) 308 (Ont. H.C.) — referred to
Canadian Civil Liberties Assn. v. Canada (Attorney General) (1998), 54 C.R.R. (2d) 118, 40 O.R. (3d) 489, 10 Admin.
L.R. (3d) 56, 111 O.A.C. 51, 1998 CarswellOnt 2808, 126 C.C.C. (3d) 257, 161 D.L.R. (4th) 225 (Ont. C.A.) — considered
Canadian Council of Churches v. R. (1992), (sub nom. Canadian Council of Churches v. Canada) 132 N.R. 241, 5
C.P.C. (3d) 20, 2 Admin. L.R. (2d) 229, (sub nom. Canadian Council of Churches v. Canada) 88 D.L.R. (4th) 193, 16
Imm. L.R. (2d) 161, (sub nom. Canadian Council of Churches v. Canada (Minister of Employment & Immigration)) 8
C.R.R. (2d) 145, (sub nom. Canadian Council of Churches v. Canada (Minister of Employment & Immigration)) [1992]
1 S.C.R. 236, 1992 CarswellNat 650, 1992 CarswellNat 25, 49 F.T.R. 160 (note) (S.C.C.) — followed
Canadian National Transportation Ltd. v. Canada (Attorney General) (1983), [1983] 2 S.C.R. 206, 3 D.L.R. (4th) 16, 49
N.R. 241, [1984] 1 W.W.R. 193, 28 Alta. L.R. (2d) 97, 49 A.R. 39, 7 C.C.C. (3d) 449, 76 C.P.R. (2d) 1, 38 C.R. (3d) 97,
1983 CarswellAlta 167, 1983 CarswellAlta 320 (S.C.C.) — referred to
Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2) (1966), [1967] 1 A.C. 853, [1967] R.P.C. 497, [1966] 2 All E.R.
536, [1966] 3 W.L.R. 125 (U.K. H.L.) — considered
Cherokee Nation v. Georgia (1831), 30 U.S. 1, 8 L.Ed. 25, 5 Peters 1 (U.S. Ga.) — referred to
Chingee v. British Columbia (Attorney General) (2005), 45 B.C.L.R. (4th) 54, 216 B.C.A.C. 188, 356 W.A.C. 188, 261
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
D.L.R. (4th) 54, 2005 BCCA 446, 2005 CarswellBC 2112, (sub nom. Chingee v. Canada (Attorney General)) [2005] 4
C.N.L.R. 116, [2006] 1 W.W.R. 526 (B.C. C.A.) — referred to
Chingee v. British Columbia (Attorney General) (2006), 2006 CarswellBC 785, 2006 CarswellBC 786, 354 N.R. 195
(note), 234 B.C.A.C. 320 (note), 387 W.A.C. 320 (note) (S.C.C.) — referred to
Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 139 O.A.C. 201, 41 R.P.R. (3d) 1, [2001] 1 C.N.L.R.
56, 2000 CarswellOnt 4836, 51 O.R. (3d) 641, 195 D.L.R. (4th) 135 (Ont. C.A.) — referred to
Clark v. R. (1995), 1995 CarswellNat 3010, 1995 CarswellNat 3011 (Fed. C.A.) — referred to
Consortium Developments (Clearwater) Ltd. v. Sarnia (City) (1998), 114 O.A.C. 92, [1998] 3 S.C.R. 3, 8 Admin. L.R.
(3d) 165, 1998 CarswellOnt 3949, 40 O.R. (3d) 158 (headnote only), 1998 CarswellOnt 3948, 48 M.P.L.R. (2d) 1, 165
D.L.R. (4th) 25, 230 N.R. 343 (S.C.C.) — referred to
Daniels v. Canada (Minister of Indian Affairs & Northern Development) (2002), 2002 CFPI 295, 2002 CarswellNat
1805, 2002 FCT 295, 2002 CarswellNat 635, [2002] 4 F.C. 550, 220 F.T.R. 41 (Fed. T.D.) — referred to
Danyluk v. Ainsworth Technologies Inc. (2001), 54 O.R. (3d) 214 (headnote only), 201 D.L.R. (4th) 193, 10 C.C.E.L.
(3d) 1, 2001 C.L.L.C. 210-033, 272 N.R. 1, 149 O.A.C. 1, 7 C.P.C. (5th) 199, 34 Admin. L.R. (3d) 163, 2001 CarswellOnt 2434, 2001 CarswellOnt 2435, 2001 SCC 44, [2001] 2 S.C.R. 460 (S.C.C.) — followed
David Suzuki Foundation v. British Columbia (Attorney General) (2004), 2004 BCSC 620, 2004 CarswellBC 1049, 8
C.E.L.R. (3d) 235, 17 Admin. L.R. (4th) 85 (B.C. S.C.) — referred to
Delgamuukw v. British Columbia (1997), 220 N.R. 161, 153 D.L.R. (4th) 193, [1997] 3 S.C.R. 1010, 99 B.C.A.C. 161,
162 W.A.C. 161, 1997 CarswellBC 2358, 1997 CarswellBC 2359, [1998] 1 C.N.L.R. 14, [1999] 10 W.W.R. 34, 66
B.C.L.R. (3d) 285 (S.C.C.) — followed
Di Iorio v. Montreal Jail (1976), 1976 CarswellQue 13, [1978] 1 S.C.R. 152, 33 C.C.C. (2d) 289, 1976 CarswellQue
59F, 35 C.R.N.S. 57, 8 N.R. 361, 73 D.L.R. (3d) 491 (S.C.C.) — referred to
Dumont v. Canada (Attorney General) (1987), 1987 CarswellMan 325, 48 Man. R. (2d) 4, (sub nom. Manitoba Metis
Federation Inc. v. Canada (Attorney General)) [1987] 2 C.N.L.R. 85 (Man. Q.B.) — considered
Dumont v. Canada (Attorney General) (1988), 1988 CarswellMan 142, 52 Man. R. (2d) 291, [1988] 5 W.W.R. 193, 52
D.L.R. (4th) 25, (sub nom. Manitoba Metis Federation Inc. v. Canada (Attorney General)) [1988] 3 C.N.L.R. 39 (Man.
C.A.) — considered
Dumont v. Canada (Attorney General) (1990), 67 D.L.R. (4th) 159, [1990] 1 S.C.R. 279, 1990 CarswellMan 200, 105
N.R. 228, 1990 CarswellMan 376, [1990] 4 W.W.R. 127, 65 Man. R. (2d) 182, [1990] 2 C.N.L.R. 19 (S.C.C.) — con-
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
sidered
Eastmain Band v. Robinson (1992), (sub nom. Eastmain Band v. Canada (Federal Administrator)) [1993] 1 F.C. 501,
(sub nom. Eastmain Indian Band v. Robinson) 58 F.T.R. 240 (note), 9 C.E.L.R. (N.S.) 257, (sub nom. Eastmain Band v.
Canada (Federal Administrator)) [1993] 3 C.N.L.R. 55, (sub nom. Eastmain Band v. James Bay & Northern Quebec
Agreement (Administrator)) 99 D.L.R. (4th) 16, (sub nom. Eastmain Indian Band v. Robinson) 145 N.R. 270, 1992 CarswellNat 9, 1992 CarswellNat 623 (Fed. C.A.) — considered
Edwards v. Canada (Attorney General) (1929), (sub nom. Reference re s. 24 of the Constitution Act, 1867) [1929] 3
W.W.R. 479, 1929 CarswellNat 2, [1930] A.C. 124, [1930] 1 D.L.R. 98 (Canada P.C.) — referred to
Fairford First Nation v. Canada (Attorney General) (1998), [1999] 2 F.C. 48, 156 F.T.R. 1, 1998 CarswellNat 2900,
[1999] 2 C.N.L.R. 60, 1998 CarswellNat 2201 (Fed. T.D.) — referred to
Fales v. Canada Permanent Trust Co. (1976), [1976] 6 W.W.R. 10, 11 N.R. 487, (sub nom. Wohlleben v. Canada Permanent Trust Co.) 70 D.L.R. (3d) 257, [1977] 2 S.C.R. 302, 1976 CarswellBC 240, 1976 CarswellBC 317 (S.C.C.) —
referred to
Federation of Saskatchewan Indians v. Canada (Attorney General) (2002), (sub nom. Bellegarde v. Canada (Attorney
General)) 223 F.T.R. 60, 2002 FCT 1001, 2002 CarswellNat 2600, 2002 CarswellNat 4303, 2002 CFPI 1001 (Fed. T.D.)
— followed
Fidelitas Shipping Co. v. V/O Exportchieb (1965), [1965] 1 Lloyd's Rep. 223, [1966] 1 Q.B. 630, [1965] 2 All E.R. 4
(Eng. C.A.) — referred to
Fillion v. Degen (2005), 2005 MBCA 58, 2005 CarswellMan 152, 195 Man. R. (2d) 2, 351 W.A.C. 2, 24 R.F.L. (6th)
253, [2006] 6 W.W.R. 609 (Man. C.A.) — referred to
Finlay v. Canada (Minister of Finance) (1986), 8 C.H.R.R. D/3789, [1987] 1 W.W.R. 603, [1986] 2 S.C.R. 607, 33
D.L.R. (4th) 321, 71 N.R. 338, 23 Admin. L.R. 197, 17 C.P.C. (2d) 289, 1986 CarswellNat 104, 1986 CarswellNat 741
(S.C.C.) — referred to
Follis v. Albemarle (Township) (1940), [1941] 1 D.L.R. 178, [1941] O.R. 1, 1940 CarswellOnt 39 (Ont. C.A.) — referred to
Forest v. Manitoba (Attorney General) (1979), [1979] 4 W.W.R. 229, 98 D.L.R. (3d) 405, 47 C.C.C. (2d) 417, 1979
CarswellMan 84 (Man. C.A.) — referred to
Forest v. Manitoba (Attorney General) (1979), [1979] 2 S.C.R. 1032, 101 D.L.R. (3d) 385, 30 N.R. 213, [1980] 2
W.W.R. 758, 2 Man. R. (2d) 109, 49 C.C.C. (2d) 353, 1979 CarswellMan 150, 2 Man. R. 109, 1979 CarswellMan 159
(S.C.C.)
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Frame v. Smith (1987), 1987 CarswellOnt 969, 78 N.R. 40, [1987] 2 S.C.R. 99, 42 D.L.R. (4th) 81, 23 O.A.C. 84, 42
C.C.L.T. 1, [1988] 1 C.N.L.R. 152, 9 R.F.L. (3d) 225, 1987 CarswellOnt 347 (S.C.C.) — referred to
G. (E.D.) v. Hammer (2003), 2003 CarswellBC 2407, 2003 CarswellBC 2408, 2003 SCC 52, 18 B.C.L.R. (4th) 42, 187
B.C.A.C. 193, 307 W.A.C. 193, 310 N.R. 1, [2003] R.R.A. 1069, [2003] 2 S.C.R. 459, 230 D.L.R. (4th) 554, [2003] 11
W.W.R. 244, 19 C.C.L.T. (3d) 38, 2004 C.L.L.C. 210-011 (S.C.C.) — referred to
Girardet v. Crease & Co. (1987), 1987 CarswellBC 42, 11 B.C.L.R. (2d) 361 (B.C. S.C.) — referred to
Granovsky v. Canada (Minister of Employment & Immigration) (2000), [2000] 1 S.C.R. 703, 74 C.R.R. (2d) 1, 2000
SCC 28, 2000 CarswellNat 760, 2000 CarswellNat 761, 253 N.R. 329, 50 C.C.E.L. (2d) 177, 186 D.L.R. (4th) 1 (S.C.C.)
— referred to
Guerin v. R. (1984), 59 B.C.L.R. 301, 1984 CarswellNat 693, 1984 CarswellNat 813, [1984] 6 W.W.R. 481, [1984] 2
S.C.R. 335, 13 D.L.R. (4th) 321, (sub nom. Guerin v. Canada) 55 N.R. 161, [1985] 1 C.N.L.R. 120, 20 E.T.R. 6, 36
R.P.R. 1 (S.C.C.) — followed
Haida Nation v. British Columbia (Minister of Forests) (2004), 19 Admin. L.R. (4th) 195, 327 N.R. 53, [2004] 3 S.C.R.
511, 36 B.C.L.R. (4th) 282, 206 B.C.A.C. 52, 338 W.A.C. 52, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th)
1, 2004 CarswellBC 2656, 2004 CarswellBC 2657, 2004 SCC 73, 245 D.L.R. (4th) 33, [2005] 3 W.W.R. 419 (S.C.C.)
— considered
Hardy v. Desjarlais (1892), 8 Man. R. 550 (Man. C.A.) — considered
Hills v. Canada (Attorney General) (1988), 1988 CarswellNat 654, 1988 CarswellNat 757, 88 C.L.L.C. 14,011, [1988] 1
S.C.R. 513, 48 D.L.R. (4th) 193, 84 N.R. 86, 30 Admin. L.R. 187 (S.C.C.) — considered
Hodgkinson v. Simms (1994), 57 C.P.R. (3d) 1, 5 E.T.R. (2d) 1, [1994] 3 S.C.R. 377, 95 D.T.C. 5135, 97 B.C.L.R. (2d)
1, 117 D.L.R. (4th) 161, 171 N.R. 245, 1994 CarswellBC 438, 1994 CarswellBC 1245, [1994] 9 W.W.R. 609, 49
B.C.A.C. 1, 80 W.A.C. 1, 22 C.C.L.T. (2d) 1, 16 B.L.R. (2d) 1, 6 C.C.L.S. 1 (S.C.C.) — referred to
Hogan v. Newfoundland (Attorney General) (2000), 2000 NFCA 12, 189 Nfld. & P.E.I.R. 183, 571 A.P.R. 183, 183
D.L.R. (4th) 225, 2000 CarswellNfld 47, 72 C.R.R. (2d) 1 (Nfld. C.A.) — referred to
Hosmer v. Wallace (1878), 24 L.Ed. 1130, 97 U.S. 575 (U.S. S.C.) — considered
International Corona Resources Ltd. v. LAC Minerals Ltd. (1989), 44 B.L.R. 1, 35 E.T.R. 1, (sub nom. LAC Minerals
Ltd. v. International Corona Resources Ltd.) 69 O.R. (2d) 287, (sub nom. LAC Minerals Ltd. v. International Corona
Resources Ltd.) 61 D.L.R. (4th) 14, 101 N.R. 239, 36 O.A.C. 57, (sub nom. LAC Minerals Ltd. v. International Corona
Resources Ltd.) [1989] 2 S.C.R. 574, 6 R.P.R. (2d) 1, (sub nom. LAC Minerals Ltd. v. International Corona Resources
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Ltd.) 26 C.P.R. (3d) 97, 1989 CarswellOnt 126, 1989 CarswellOnt 965 (S.C.C.) — referred to
Inuit Tapirisat of Canada v. Canada (Attorney General) (1980), 1980 CarswellNat 633, [1980] 2 F.C.R. 735, [1980] 2
S.C.R. 735, 115 D.L.R. (3d) 1, 33 N.R. 304, 1980 CarswellNat 633F (S.C.C.) — referred to
Johnson v. McIntosh (1823), 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (U.S. Ill.) — referred to
Jones v. Canada (Attorney General) (1974), (sub nom. Jones v. New Brunswick (Attorney General)) 7 N.B.R. (2d) 526,
(sub nom. Jones v. New Brunswick (Attorney General)) 45 D.L.R. (3d) 583, (sub nom. Jones v. New Brunswick (Attorney General)) 16 C.C.C. (2d) 297, (sub nom. Reference re Official Languages Act (Can.) & Official Languages of New
Brunswick Act) 1 N.R. 582, 1974 CarswellNB 14, (sub nom. Jones v. New Brunswick (Attorney General)) [1975] 2
S.C.R. 182, 1974 CarswellNB 14F (S.C.C.) — referred to
Kennett Estate v. Manitoba (Attorney General) (1998), 1998 CarswellMan 348, [1999] 1 W.W.R. 639, 42 R.F.L. (4th)
27, (sub nom. Kennett v. Manitoba (Attorney General)) 129 Man. R. (2d) 244, (sub nom. Kennett v. Manitoba (Attorney
General)) 180 W.A.C. 244 (Man. C.A.) — referred to
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism & Culture) (2002), [2002] 2 C.N.L.R. 143, (sub
nom. Kitkatla Indian Band v. British Columbia (Minister of Small Business, Tourism & Culture)) 286 N.R. 131, 1
B.C.L.R. (4th) 1, 210 D.L.R. (4th) 577, [2002] 6 W.W.R. 1, 2002 CarswellBC 617, 2002 CarswellBC 618, 2002 SCC
31, 165 B.C.A.C. 1, 270 W.A.C. 1, [2002] 2 S.C.R. 146 (S.C.C.) — considered
Krangle (Guardian ad litem of) v. Brisco (2002), 2002 SCC 9, 2002 CarswellBC 64, 2002 CarswellBC 65, [2002] 1
S.C.R. 205, [2002] 3 W.W.R. 45, 161 B.C.A.C. 283, 263 W.A.C. 283, 208 D.L.R. (4th) 193, 98 B.C.L.R. (3d) 1, 281
N.R. 88, 9 C.C.L.T. (3d) 195 (S.C.C.) — referred to
Kruger v. R. (1985), 17 D.L.R. (4th) 591, (sub nom. Kruger v. Canada) 58 N.R. 241, [1985] 3 C.N.L.R. 15, [1986] 1
F.C. 3, 32 L.C.R. 65, 1985 CarswellNat 97, 1985 CarswellNat 55F (Fed. C.A.) — considered
Labrador Co. v. R. (1892), 16 L.N. 67, 1892 CarswellQue 18, [1893] A.C. 104, C.R. [10] A.C. 306 (Quebec P.C.) — referred to
Labrador Métis Nation v. Newfoundland & Labrador (Minister of Transportation & Works) (2006), 2006 NLTD 119,
2006 CarswellNfld 218, 779 A.P.R. 257, 258 Nfld. & P.E.I.R. 257, [2006] 4 C.N.L.R. 94 (N.L. T.D.) — distinguished
Lalonde v. Ontario (Commission de restructuration des services de santé) (2002), 2002 CarswellOnt 336, 56 O.R. (3d)
505 (Ont. C.A.) — referred to
Larence v. Larence (1911), 17 W.L.R. 197, 21 Man. R. 145, 1911 CarswellMan 48 (Man. K.B.) — referred to
Law Society (British Columbia) v. Mangat (2001), 157 B.C.A.C. 161, 256 W.A.C. 161, 16 Imm. L.R. (3d) 1, 205 D.L.R.
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
(4th) 577, 2001 SCC 67, 2001 CarswellBC 2168, 2001 CarswellBC 2169, 276 N.R. 339, [2002] 2 W.W.R. 201, 96
B.C.L.R. (3d) 1, [2001] 3 S.C.R. 113 (S.C.C.) — referred to
Little Sisters Book & Art Emporium v. Canada (Minister of Justice) (2000), 145 B.C.A.C. 1, 237 W.A.C. 1, [2000] 2
S.C.R. 1120, 28 Admin. L.R. (3d) 1, 2000 SCC 69, 2000 CarswellBC 2442, 2000 CarswellBC 2452, 79 C.R.R. (2d) 189,
38 C.R. (5th) 209, 83 B.C.L.R. (3d) 1, [2001] 2 W.W.R. 1, 263 N.R. 203, 150 C.C.C. (3d) 1, 193 D.L.R. (4th) 193
(S.C.C.) — referred to
M.D. Sloan Consultants Ltd. v. Derrickson (1991), 61 B.C.L.R. (2d) 370, (sub nom. Sloan (M.D.) Consultants Ltd. v.
Derrickson) 9 B.C.A.C. 241, 85 D.L.R. (4th) 449, (sub nom. Sloan (M.D.) Consultants Ltd. v. Derrickson) 19 W.A.C.
241, 1991 CarswellBC 298 (B.C. C.A.) — referred to
M. (K.) v. M. (H.) (1992), 142 N.R. 321, (sub nom. M. c. M.) [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289, 57 O.A.C. 321, 14
C.C.L.T. (2d) 1, 1992 CarswellOnt 998, 1992 CarswellOnt 841 (S.C.C.) — considered
M. (M.) v. Roman Catholic Church of Canada (2001), 2001 MBCA 148, 9 C.P.C. (5th) 69, [2001] 10 W.W.R. 607, 205
D.L.R. (4th) 253, 2001 CarswellMan 444, 160 Man. R. (2d) 265, 262 W.A.C. 265 (Man. C.A.) — considered
MacNeil v. Nova Scotia (Board of Censors) (1975), 12 N.S.R. (2d) 85, [1976] 2 S.C.R. 265, 1975 CarswellNS 5, (sub
nom. Nova Scotia Board of Censors) 4 C.E.L.N. 65, 5 N.R. 43, 32 C.R.N.S. 376, (sub nom. Nova Scotia Board of Censors v. MacNeil) 55 D.L.R. (3d) 632, 1975 CarswellNS 35F (S.C.C.) — referred to
Mahe v. Alberta (1990), [1990] 3 W.W.R. 97, 106 A.R. 321, 46 C.R.R. 193, [1990] 1 S.C.R. 342, 68 D.L.R. (4th) 69,
105 N.R. 321, 72 Alta. L.R. (2d) 257, 1990 CarswellAlta 26, 1990 CarswellAlta 649 (S.C.C.) — considered
Manitoba Society of Seniors Inc. v. Canada (Attorney General) (1992), 76 Man. R. (2d) 232, 10 W.A.C. 232, 1992 CarswellMan 238 (Man. C.A.) — referred to
Marshall v. Canada (1999), (sub nom. R. v. Marshall) [1999] 4 C.N.L.R. 161, (sub nom. R. v. Marshall) 246 N.R. 83,
(sub nom. R. v. Marshall) 138 C.C.C. (3d) 97, (sub nom. R. v. Marshall) 178 N.S.R. (2d) 201, (sub nom. R. v. Marshall)
549 A.P.R. 201, (sub nom. R. v. Marshall) [1999] 3 S.C.R. 456, 1999 CarswellNS 262, 1999 CarswellNS 282, (sub nom.
R. v. Marshall) 177 D.L.R. (4th) 513 (S.C.C.) — considered
Mathers, Re (1891), 7 Man. R. 434 (Man. C.A.) — considered
Maurice v. Canada (Minister of Indian Affairs & Northern Development) (1999), 1999 CarswellNat 2769, 183 F.T.R. 9
(Fed. T.D.) — followed
Maynard v. Maynard (1950), [1951] S.C.R. 346, 1950 CarswellOnt 128, [1951] 1 D.L.R. 241 (S.C.C.) — referred to
Mazzeo v. Ontario (1996), 1996 CarswellOnt 1181 (Ont. Gen. Div.) — referred to
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
McNeil v. Nova Scotia (Board of Censors) (1978), [1978] 2 S.C.R. 662, 84 D.L.R. (3d) 1, 19 N.R. 570, 25 N.S.R. (2d)
128, 44 C.C.C. (2d) 316, 1978 CarswellNS 109, 36 A.P.R. 128, 1978 CarswellNS 109F (S.C.C.) — considered
Michel First Nation v. Canada (Minister of Indian Affairs & Northern Development) (2006), 56 Alta. L.R. (4th) 301,
(sub nom. Callihoo v. Canada (Minister of Indian Affairs & Northern Development)) 402 A.R. 1, 2006 ABQB 1, 2006
CarswellAlta 9, [2006] 6 W.W.R. 660, (sub nom. Callihoo v. Canada (Minister of Indian Affairs & Northern Development)) [2006] 4 C.N.L.R. 20 (Alta. Q.B.) — referred to
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2005), 2005 SCC 69, 2005 CarswellNat 3756,
2005 CarswellNat 3757, [2006] 1 C.N.L.R. 78, 342 N.R. 82, [2005] 3 S.C.R. 388, 21 C.P.C. (6th) 205, 259 D.L.R. (4th)
610, 37 Admin. L.R. (4th) 223 (S.C.C.) — referred to
Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1, 42 O.R. (3d) 321, 168 D.L.R. (4th) 270, 1999 CarswellOnt
1, 99 C.L.L.C. 210-013, 40 C.C.E.L. (2d) 1 (Ont. C.A.) — referred to
Mitchell v. Minister of National Revenue (2001), 2001 SCC 33, 2001 CarswellNat 873, 2001 CarswellNat 874, (sub
nom. Mitchell v. M.N.R.) 83 C.R.R. (2d) 1, 269 N.R. 207, (sub nom. Mitchell v. M.N.R.) 199 D.L.R. (4th) 385, (sub nom.
Mitchell v. M.N.R.) [2001] 3 C.N.L.R. 122, 206 F.T.R. 160 (note), (sub nom. Mitchell v. M.N.R.) [2001] 1 S.C.R. 911,
[2002] 3 C.T.C. 359 (S.C.C.) — referred to
Mitchell v. Sandy Bay Indian Band (1990), 1990 CarswellMan 380, (sub nom. Mitchell v. Peguis Indian Band) [1990] 5
W.W.R. 97, [1990] 2 S.C.R. 85, 71 D.L.R. (4th) 193, 3 T.C.T. 5219, 67 Man. R. (2d) 81, 110 N.R. 241, [1990] 3
C.N.L.R. 46, 1990 CarswellMan 209 (S.C.C.) — considered
Montreal Trust Co. v. Abitibi Power & Paper Co. (1943), [1943] 3 W.W.R. 33, 25 C.B.R. 6, 1943 CarswellOnt 70,
[1943] A.C. 536, [1943] 2 All E.R. 311, [1943] 4 D.L.R. 1 (Ontario P.C.) — referred to
Moore v. Boyd (1930), 39 F.2d 502, 59 App. D.C. 252 (U.S. Ct. App. D.C.) — considered
Morgan v. Prince Edward Island (Attorney General) (1975), [1976] 2 S.C.R. 349, 1975 CarswellPEI 11, 7 Nfld. &
P.E.I.R. 537, 5 N.R. 455, 55 D.L.R. (3d) 527, 1975 CarswellPEI 11F (S.C.C.) — referred to
Naken v. General Motors of Canada Ltd. (1983), [1983] 1 S.C.R. 72, 144 D.L.R. (3d) 385, 46 N.R. 139, 32 C.P.C. 138,
1983 CarswellOnt 804, 1983 CarswellOnt 367 (S.C.C.) — considered
Native Council of Nova Scotia v. Canada (Attorney General) (2002), 2002 CarswellNat 18, 2002 FCT 6 (Fed. T.D.) —
followed
Norberg v. Wynrib (1992), [1992] 4 W.W.R. 577, [1992] 2 S.C.R. 226, 92 D.L.R. (4th) 449, 12 C.C.L.T. (2d) 1, 9
B.C.A.C. 1, 19 W.A.C. 1, 138 N.R. 81, 68 B.C.L.R. (2d) 29, 1992 CarswellBC 907, 1992 CarswellBC 155, [1992]
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
R.R.A. 668 (S.C.C.) — referred to
Novak v. Bond (1999), 1999 CarswellBC 1027, 1999 CarswellBC 1028, 172 D.L.R. (4th) 385, 122 B.C.A.C. 161, 200
W.A.C. 161, 45 C.C.L.T. (2d) 1, 239 N.R. 134, 32 C.P.C. (4th) 197, [1999] 8 W.W.R. 499, [1999] 1 S.C.R. 808, 63
B.C.L.R. (3d) 41 (S.C.C.) — considered
Nowegijick v. R. (1983), (sub nom. Nowegijick v. Canada) [1983] 1 S.C.R. 29, 1983 CarswellNat 520, 83 D.T.C. 5041,
46 N.R. 41, [1983] 2 C.N.L.R. 89, [1983] C.T.C. 20, 144 D.L.R. (3d) 193, 1983 CarswellNat 123 (S.C.C.) — not followed
O.P.S.E.U. v. Ontario (Attorney General) (1987), [1987] 2 S.C.R. 2, 41 D.L.R. (4th) 1, 77 N.R. 321, 23 O.A.C. 161, 28
Admin. L.R. 141, 87 C.L.L.C. 14,037, 1987 CarswellOnt 945, 59 O.R. (2d) 671 (note), 1987 CarswellOnt 968 (S.C.C.)
— considered
Ontario Mining Co. v. Seybold (1902), [1903] A.C. 73, 1902 CarswellOnt 681, C.R. [13] A.C. 75 (Ontario P.C.) — referred to
Operation Dismantle Inc. v. R. (1985), [1985] 1 S.C.R. 441, 59 N.R. 1, 18 D.L.R. (4th) 481, 12 Admin. L.R. 16, 13
C.R.R. 287, 1985 CarswellNat 151, 1985 CarswellNat 664 (S.C.C.) — referred to
Opetchesaht Indian Band v. Canada (1997), 211 N.R. 241, 90 B.C.A.C. 1, 147 W.A.C. 1, 147 D.L.R. (4th) 1, [1998] 1
C.N.L.R. 134, 1997 CarswellBC 1018, 1997 CarswellBC 1017, 9 R.P.R. (3d) 115, [1997] 7 W.W.R. 253, [1997] 2
S.C.R. 119 (S.C.C.) — considered
Osoyoos Indian Band v. Oliver (Town) (2001), 95 B.C.L.R. (3d) 22, [2002] 1 W.W.R. 23, 2001 SCC 85, 2001 CarswellBC 2703, 2001 CarswellBC 2704, 45 R.P.R. (3d) 1, 278 N.R. 201, 75 L.C.R. 1, [2002] 1 C.N.L.R. 271, 206 D.L.R.
(4th) 385, [2001] 3 S.C.R. 746, 160 B.C.A.C. 171, 261 W.A.C. 171 (S.C.C.) — referred to
Papaschase Indian Band No. 136 v. Canada (Attorney General) (2004), 2004 ABQB 655, 2004 CarswellAlta 1170, 43
Alta. L.R. (4th) 41, [2004] 4 C.N.L.R. 110, [2005] 8 W.W.R. 442, (sub nom. Lameman v. Canada (Attorney General))
365 A.R. 1 (Alta. Q.B.) — referred to
Parsons v. Citizens' Insurance Co. (1881), C.R. [8] A.C. 406, [1881-85] All E.R. Rep. 1179, (sub nom. Citizens Insurance Co. of Canada v. Parsons) L.R. 7 App. Cas. 96, 1881 CarswellOnt 253, (sub nom. Parsons v. Citizens' Insurance
Co.) 1 Cart. B.N.A. 265 (Ontario P.C.) — considered
Pellant v. Hebert (1982), 12 R.G.D. 242 (Man. Co. Ct.) — referred to
Penvidic Contracting Co. v. International Nickel Co. (1975), [1976] 1 S.C.R. 267, 1975 CarswellOnt 299, 1975 CarswellOnt 299F, 4 N.R. 1, 53 D.L.R. (3d) 748 (S.C.C.) — referred to
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
Pharmaceutical Society of Great Britain v. Dickson (1968), [1970] A.C. 403, [1968] 3 W.L.R. 286, [1968] 2 All E.R.
686 (U.K. H.L.) — referred to
Phillips v. Nova Scotia (Commissioner, Public Inquiries Act) (1995), 1995 CarswellNS 12, 1995 CarswellNS 83, 39 C.R.
(4th) 141, 31 Admin. L.R. (2d) 261, (sub nom. Phillips v. Richard, J.) 180 N.R. 1, (sub nom. Phillips v. Richard, J.) 141
N.S.R. (2d) 1, (sub nom. Phillips v. Richard, J.) 403 A.P.R. 1, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry
into the Westray Mine Tragedy)) 98 C.C.C. (3d) 20, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry into the
Westray Mine Tragedy)) 124 D.L.R. (4th) 129, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry into the
Westray Mine Tragedy)) [1995] 2 S.C.R. 97, (sub nom. Phillips v. Nova Scotia (Commission of Inquiry into the Westray
Mine Tragedy)) 28 C.R.R. (2d) 1 (S.C.C.) — referred to
Prince Edward Island (Minister of Transportation & Public Works) v. Canadian National Railway (1990), 1990 CarswellNat 106F, 110 N.R. 394, 71 D.L.R. (4th) 596, [1991] 1 F.C. 129, 1990 CarswellNat 106 (Fed. C.A.) — followed
Pyx Granite Co. v. Ministry of Housing & Local Government (1958), [1958] 1 Q.B. 554, [1958] 1 All E.R. 625 (Eng.
C.A.) — referred to
Quebec (Attorney General) v. Canada (National Energy Board) (1994), (sub nom. Québec (Procureur général) v. Office
national de l'énergie) 163 N.R. 241, [1994] 3 C.N.L.R. 49, 1994 CarswellNat 8, 1994 CarswellNat 1496, 112 D.L.R.
(4th) 129, [1994] 1 S.C.R. 159, 14 C.E.L.R. (N.S.) 1, 20 Admin. L.R. (2d) 79 (S.C.C.) — referred to
R. c. Adams (1996), 1996 CarswellQue 912, 1996 CarswellQue 913, 202 N.R. 89, [1996] 3 S.C.R. 101, 110 C.C.C. (3d)
97, 138 D.L.R. (4th) 657, [1996] 4 C.N.L.R. 1 (S.C.C.) — referred to
R. v. Badger (1996), [1996] 4 W.W.R. 457, 37 Alta. L.R. (3d) 153, 195 N.R. 1, 105 C.C.C. (3d) 289, 133 D.L.R. (4th)
324, [1996] 2 C.N.L.R. 77, [1996] 1 S.C.R. 771, 181 A.R. 321, 116 W.A.C. 321, 1996 CarswellAlta 365F, 1996 CarswellAlta 587 (S.C.C.) — considered
R. v. Beaulac (1999), 1999 CarswellBC 1025, 1999 CarswellBC 1026, 238 N.R. 131, 121 B.C.A.C. 227, 198 W.A.C.
227, 134 C.C.C. (3d) 481, 173 D.L.R. (4th) 193, 62 C.R.R. (2d) 133, [1999] 1 S.C.R. 768 (S.C.C.) — referred to
R. v. Bernard (2005), 15 C.E.L.R. (3d) 163, (sub nom. R. v. Marshall) 235 N.S.R. (2d) 151, (sub nom. R. v. Marshall)
747 A.P.R. 151, (sub nom. R. v. Marshall) [2005] 2 S.C.R. 220, 255 D.L.R. (4th) 1, [2005] 3 C.N.L.R. 214, 198 C.C.C.
(3d) 29, (sub nom. R. v. Marshall) 287 N.B.R. (2d) 206, (sub nom. R. v. Marshall) 750 A.P.R. 206, 2005 CarswellNS
317, 2005 CarswellNS 318, 2005 SCC 43, 336 N.R. 22 (S.C.C.) — considered
R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, 1985 CarswellAlta 609 (S.C.C.) — considered
R. v. Blais (2001), 2001 CarswellMan 174, 156 Man. R. (2d) 53, 246 W.A.C. 53, [2001] 3 C.N.L.R. 187, [2001] 8
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
W.W.R. 231, 2001 MBCA 55, 198 D.L.R. (4th) 220 (Man. C.A.) — considered
R. v. Blais (2003), 2003 CarswellMan 386, 2003 CarswellMan 387, 2003 SCC 44, 308 N.R. 371, 230 D.L.R. (4th) 22,
177 C.C.C. (3d) 214, [2003] 2 S.C.R. 236, [2003] 4 C.N.L.R. 219, 180 Man. R. (2d) 3, 310 W.A.C. 3, [2004] 11 W.W.R.
199 (S.C.C.) — followed
R. v. Campbell (1997), (sub nom. Reference re Remuneration of Judges of the Provincial Court (P.E.I.)) 156 Nfld. &
P.E.I.R. 1, (sub nom. Reference re Remuneration of Judges of the Provincial Court (P.E.I.)) 121 Man. R. (2d) 1, 11
C.P.C. (4th) 1, (sub nom. Reference re Public Sector Pay Reduction Act (P.E.I.), s. 10) 150 D.L.R. (4th) 577, 118 C.C.C.
(3d) 193, (sub nom. Provincial Court Judges Assn. (Manitoba) v. Manitoba (Minister of Justice)) 46 C.R.R. (2d) 1, (sub
nom. Reference re Remuneration of Judges of the Provincial Court (P.E.I.)) 206 A.R. 1, (sub nom. Reference re Remuneration of Judges of the Provincial Court (P.E.I.)) 156 W.A.C. 1, 217 N.R. 1, (sub nom. Reference re Remuneration of
Judges of the Provincial Court (P.E.I.)) 483 A.P.R. 1, 1997 CarswellNat 3038, 1997 CarswellNat 3039, (sub nom. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island) [1997] 3 S.C.R. 3, [1997] 10
W.W.R. 417, 49 Admin. L.R. (2d) 1 (S.C.C.)
R. v. Howard (1994), 18 O.R. (3d) 384 (note), [1994] 3 C.N.L.R. 146, 166 N.R. 282, 90 C.C.C. (3d) 131, 71 O.A.C. 278,
[1994] 2 S.C.R. 299, 115 D.L.R. (4th) 312, 1994 CarswellOnt 1173, 1994 CarswellOnt 1173F (S.C.C.) — considered
R. v. Morgentaler (1993), 157 N.R. 97, 125 N.S.R. (2d) 81, 349 A.P.R. 81, [1993] 3 S.C.R. 463, 107 D.L.R. (4th) 537,
85 C.C.C. (3d) 118, 25 C.R. (4th) 179, 1993 CarswellNS 19, 1993 CarswellNS 272 (S.C.C.) — referred to
R. v. Powley (2003), 2003 CarswellOnt 3502, 2003 CarswellOnt 3503, 2003 SCC 43, 308 N.R. 201, 177 O.A.C. 201, 68
O.R. (3d) 255 (note), 230 D.L.R. (4th) 1, 177 C.C.C. (3d) 193, [2003] 2 S.C.R. 207, [2003] 4 C.N.L.R. 321, 5 C.E.L.R.
(3d) 1, 110 C.R.R. (2d) 92 (S.C.C.) — followed
R. v. Prince Edward Island (1977), [1978] 1 F.C. 533, 20 N.R. 91, 83 D.L.R. (3d) 492, 14 Nfld. & P.E.I.R. 477, 33
A.P.R. 477, 1977 CarswellNat 122, 1977 CarswellNat 122F (Fed. C.A.) — referred to
R. v. Simon (1985), 171 A.P.R. 15, 1985 CarswellNS 226F, [1985] 2 S.C.R. 387, 62 N.R. 366, [1986] 1 C.N.L.R. 153, 24
D.L.R. (4th) 390, 71 N.S.R. (2d) 15, 23 C.C.C. (3d) 238, 1985 CarswellNS 226 (S.C.C.) — referred to
R. v. Sparrow (1990), 1990 CarswellBC 105, 1990 CarswellBC 756, 70 D.L.R. (4th) 385, 111 N.R. 241, [1990] 1 S.C.R.
1075, [1990] 3 C.N.L.R. 160, 46 B.C.L.R. (2d) 1, 56 C.C.C. (3d) 263, [1990] 4 W.W.R. 410 (S.C.C.) — considered
R. v. Taylor (1981), 1981 CarswellOnt 641, 62 C.C.C. (2d) 227, [1981] 3 C.N.L.R. 114, 34 O.R. (2d) 360 (Ont. C.A.) —
referred to
R. v. Vanderpeet (1996), [1996] 9 W.W.R. 1, 23 B.C.L.R. (3d) 1, 50 C.R. (4th) 1, (sub nom. R. v. Van der Peet) 137
D.L.R. (4th) 289, (sub nom. R. v. Van der Peet) 109 C.C.C. (3d) 1, (sub nom. R. v. Van der Peet) 200 N.R. 1, (sub nom.
R. v. Van der Peet) 80 B.C.A.C. 81, (sub nom. R. v. Van der Peet) [1996] 2 S.C.R. 507, (sub nom. R. v. Van der Peet)
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A.C.W.S. (3d) 820
[1996] 4 C.N.L.R. 177, (sub nom. R. v. Van der Peet) 130 W.A.C. 81, 1996 CarswellBC 2309, 1996 CarswellBC 2310
(S.C.C.) — considered
Reference re Alberta Bill of Rights Act (1947), [1947] A.C. 503, [1947] 4 D.L.R. 1, 1947 CarswellAlta 42, 63 T.L.R.
479, [1947] L.J.R. 1392, (sub nom. Alberta (Attorney General) v. Canada (Attorney General)) [1947] 2 W.W.R. 401
(Alberta P.C.) — referred to
Reference re Canada Assistance Plan (Canada) (1991), (sub nom. Reference re Canada Assistance Plan (British Columbia)) 83 D.L.R. (4th) 297, 1991 CarswellBC 920, 1991 CarswellBC 168, 58 B.C.L.R. (2d) 1, 1 Admin. L.R. (2d) 1,
(sub nom. Reference re Constitutional Question Act (British Columbia)) 1 B.C.A.C. 241, 1 W.A.C. 241, (sub nom. Reference re Constitutional Question Act (British Columbia)) 127 N.R. 161, [1991] 6 W.W.R. 1, (sub nom. Reference re
Canada Assistance Plan (British Columbia)) [1991] 2 S.C.R. 525 (S.C.C.) — referred to
Reference re Firearms Act (Canada) (2000), [2000] 10 W.W.R. 1, [2000] 1 S.C.R. 783, 34 C.R. (5th) 1, 2000 SCC 31,
2000 CarswellAlta 517, 2000 CarswellAlta 518, 261 A.R. 201, 225 W.A.C. 201, 82 Alta. L.R. (3d) 1, 254 N.R. 201, 185
D.L.R. (4th) 577, 144 C.C.C. (3d) 385 (S.C.C.) — considered
Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867 (1985), 1985 CarswellMan 183, [1985] 1 S.C.R. 721, [1985] 4 W.W.R. 385, 19 D.L.R. (4th) 1, 59 N.R. 321, 35 Man. R. (2d) 83, 1985
CarswellMan 450 (S.C.C.) — referred to
Reference re Legislative Authority of Parliament of Canada (1979), 102 D.L.R. (3d) 1, 30 N.R. 271, [1980] 1 S.C.R. 54,
1979 CarswellNat 643F, 1979 CarswellNat 643 (S.C.C.) — referred to
Reference re Power of Disallowance & Power of Reservation (Canada) (1938), [1938] 2 D.L.R. 8, 1938 CarswellNat 46,
[1938] S.C.R. 71 (S.C.C.) — followed
Reference re Provincial Fisheries (1898), 1898 CarswellNat 41, (sub nom. Canada (Attorney General) v. Ontario (Attorney General)) [1898] A.C. 700, [1895-1899] All E.R. Rep. 1251, 78 L.T. 697, 67 L.J.P.C. 90, C.R. [12] A.C. 48
(Canada P.C.) — considered
Reference re s. 79(3), (4) & (7) of the Public Schools Act (Manitoba) (1993), (sub nom. Reference Re Public Schools Act
(Manitoba)) 83 Man. R. (2d) 241, (sub nom. Reference Re Public Schools Act (Manitoba)) 36 W.A.C. 241, 1993 CarswellMan 344, (sub nom. Reference re Public Schools Act (Manitoba) s. 79(3), (4) & (7)) [1993] 3 W.W.R. 113, (sub
nom. Reference re Public Schools Act (Manitoba) s. 79(3), (4) & (7)) [1993] 1 S.C.R. 839, (sub nom. Reference Re Public Schools Act (Manitoba)) 149 N.R. 241, (sub nom. Reference re Public Schools Act (Manitoba) s. 79(3), (4) & (7))
100 D.L.R. (4th) 723, (sub nom. Reference re Public Schools Act (Manitoba) s. 79(3), (4) & (7)) 14 C.R.R. (2d) 74, 1993
CarswellMan 97 (S.C.C.) — referred to
Reference re s. 94(2) of the Motor Vehicle Act (British Columbia) (1985), 1985 CarswellBC 398, [1986] D.L.Q. 90, 1985
CarswellBC 816, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536, 63 N.R. 266, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 18
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
C.R.R. 30, 36 M.V.R. 240, [1986] 1 W.W.R. 481, 48 C.R. (3d) 289 (S.C.C.) — considered
Reference re Secession of Quebec (1998), 228 N.R. 203, 1998 CarswellNat 1300, 161 D.L.R. (4th) 385, 1998 CarswellNat 1299, 55 C.R.R. (2d) 1, [1998] 2 S.C.R. 217 (S.C.C.) — referred to
Reference re Whether the Term "Indians" in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec
(1939), [1939] 2 D.L.R. 417, 1939 CarswellNat 48, [1939] S.C.R. 104 (S.C.C.) — referred to
RJR-Macdonald Inc. c. Canada (Procureur général) (1995), (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 127 D.L.R. (4th) 1, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) [1995] 3 S.C.R. 199, 1995
CarswellQue 119, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 100 C.C.C. (3d) 449, (sub nom. RJRMacDonald Inc. v. Canada (Attorney General)) 62 C.P.R. (3d) 417, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 31 C.R.R. (2d) 189, (sub nom. RJR-MacDonald Inc. c. Canada (Procureur général)) 187 N.R. 1, 1995
CarswellQue 119F (S.C.C.) — referred to
Roberts v. R. (2002), 2002 CarswellNat 3438, 2002 CarswellNat 3439, (sub nom. Wewaykum Indian Band v. Canada)
2002 SCC 79, (sub nom. Wewaykum Indian Band v. Canada) [2003] 1 C.N.L.R. 341, (sub nom. Wewaykum Indian Band
v. Canada) 220 D.L.R. (4th) 1, (sub nom. Wewayakum Indian Band v. Canada) 297 N.R. 1, (sub nom. Wewaykum Indian Band v. Canada) [2002] 4 S.C.R. 245, (sub nom. Wewayakum Indian Band v. Canada) 236 F.T.R. 147 (note)
(S.C.C.) — considered
Robinson v. Sutherland (1893), 9 Man. R. 199 (Man. Q.B.) — considered
Roncarelli v. Duplessis (1959), 1959 CarswellQue 37, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (S.C.C.) — referred to
Ross River Dena Council Band v. Canada (2002), 2002 SCC 54, 2002 CarswellYukon 58, 2002 CarswellYukon 59,
2002 D.T.C. 7079 (En.), 2002 D.T.C. 7093 (Fr.), 213 D.L.R. (4th) 193, 3 B.C.L.R. (4th) 201, [2002] 3 C.N.L.R. 229,
[2002] 9 W.W.R. 391, 289 N.R. 233, 168 B.C.A.C. 1, 275 W.A.C. 1, [2002] 2 S.C.R. 816 (S.C.C.) — referred to
Rothmans, Benson & Hedges Inc. v. Saskatchewan (2005), [2005] 1 S.C.R. 188, 2005 SCC 13, 2005 CarswellSask 162,
2005 CarswellSask 163, 250 D.L.R. (4th) 411, [2005] 9 W.W.R. 403 (S.C.C.) — followed
Russian Commercial & Industrial Bank v. British Bank for Foreign Trade Ltd. (1921), [1921] All E.R. Rep. 329, [1921]
2 A.C. 438 (U.K. H.L.) — referred to
Same-Sex Marriage, Re (2004), 246 D.L.R. (4th) 193, [2004] 3 S.C.R. 698, 2004 CarswellNat 4422, 2004 CarswellNat
4423, 2004 SCC 79, 12 R.F.L. (6th) 153, 328 N.R. 1, 125 C.R.R. (2d) 122 (S.C.C.) — referred to
Sawridge Band v. R. (2000), 2000 CarswellNat 1025 (Fed. T.D.) — referred to
Sawridge Band v. R. (2001), 2001 FCA 342, 2001 CarswellNat 2561, 2001 FCA 341, (sub nom. Sawridge Indian Band
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
v. Canada) 283 N.R. 116 (Fed. C.A.) — referred to
Sena v. United States (1903), 23 S.Ct. 596, 189 U.S. 233 (U.S. S.C.) — referred to
Siemens v. Manitoba (Attorney General) (2002), 34 M.P.L.R. (3d) 163, 299 N.R. 267, [2003] 4 W.W.R. 1, 102 C.R.R.
(2d) 345, 2002 CarswellMan 574, 2002 CarswellMan 575, 2003 SCC 3, 47 Admin. L.R. (3d) 205, [2003] 1 S.C.R. 6,
173 Man. R. (2d) 1, 293 W.A.C. 1, 221 D.L.R. (4th) 90 (S.C.C.) — considered
Sinclair v. Mulligan (1886), 3 Man. R. 481 (Man. Q.B.) — considered
Sioui v. Quebec (Attorney General) (1990), 1990 CarswellQue 103, 1990 CarswellQue 103F, (sub nom. R. v. Sioui)
[1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427, 109 N.R. 22, (sub nom. R. c. Sioui) 30 Q.A.C. 280, 56 C.C.C. (3d) 225,
[1990] 3 C.N.L.R. 127 (S.C.C.) — considered
Smith v. Vermillion Hills (Rural Municipality No. 195) (1914), 49 S.C.R. 563 (S.C.C.) — considered
Smith v. Vermillion Hills (Rural Municipality No. 195) (1916), [1917] 1 W.W.R. 108, 30 D.L.R. 83, [1916] 2 A.C. 569,
1916 CarswellSask 224 (Saskatchewan P.C.) — referred to
Society of Ontario Hydro Professional & Administrative Employees v. Ontario Hydro (1993), (sub nom. Ontario Hydro
v. Ontario Labour Relations Board) 93 C.L.L.C. 14,061, (sub nom. Ontario Hydro v. Ontario (Labour Relations Board))
107 D.L.R. (4th) 457, 1993 CarswellOnt 1012F, (sub nom. Ontario Hydro v. Ontario Labour Relations Board) [1993]
O.L.R.B. Rep. 1071, (sub nom. Ontario Hydro v. Labour Relations Board (Ontario)) 66 O.A.C. 241, (sub nom. Ontario
Hydro v. Labour Relations Board (Ontario)) 158 N.R. 161, (sub nom. Ontario Hydro v. Ontario (Labour Relations
Board)) [1993] 3 S.C.R. 327, 1993 CarswellOnt 1012 (S.C.C.) — followed
Solosky v. Canada (1979), 1979 CarswellNat 4, (sub nom. Solosky v. R.) [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745, 16
C.R. (3d) 294, 30 N.R. 380, 50 C.C.C. (2d) 495, 1979 CarswellNat 630 (S.C.C.) — referred to
Southern Alberta Land Co. v. McLean (Rural Municipality) (1916), 10 W.W.R. 879, 29 D.L.R. 403, 53 S.C.R. 151, 1916
CarswellAlta 245 (S.C.C.) — referred to
Spooner Oils Ltd. v. Turner Valley Gas Conservation Board (1933), 1933 CarswellAlta 50, [1933] 4 D.L.R. 545, [1933]
S.C.R. 629 (S.C.C.) — referred to
State of Ohio v. U.S. Department of the Interior (1989), 880 F.2d 432 (U.S. Dist. Col. App.) — referred to
St. Catherine's Milling & Lumber Co. v. R. (1888), 1888 CarswellOnt 22, 4 Cart. B.N.A. 107, (1889) L.R. 14 App. Cas.
46, 58 L.J.P.C. 54, 6 L.T. 197, C.R. [10] A.C. 13 (Ontario P.C.) — referred to
Stoney Band v. R. (2005), 2005 CarswellNat 116, (sub nom. Stoney Band v. Canada) 249 D.L.R. (4th) 274, (sub nom.
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A.C.W.S. (3d) 820
Stoney Indian Band v. Canada) 329 N.R. 201, 2005 CarswellNat 1459, 2005 CAF 15, 2005 FCA 15, (sub nom. Stoney
Band v. Canada) [2005] 2 C.N.L.R. 371 (F.C.A.) — referred to
Tacan v. Canada (2005), 129 C.R.R. (2d) 249, 2005 FC 385, 2005 CarswellNat 762, 2005 CF 385, 2005 CarswellNat
3326 (F.C.) — referred to
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) (2004), 19 Admin. L.R. (4th) 165,
(sub nom. Taku River Tlingit First Nation v. Tulsequah Chief Mine Project (Project Assessment Director)) 327 N.R.
133, 36 B.C.L.R. (4th) 370, 206 B.C.A.C. 132, 338 W.A.C. 132, 11 C.E.L.R. (3d) 49, [2005] 1 C.N.L.R. 366, 26 R.P.R.
(4th) 50, 2004 CarswellBC 2654, 2004 CarswellBC 2655, 2004 SCC 74, 245 D.L.R. (4th) 193, [2004] 3 S.C.R. 550,
[2005] 3 W.W.R. 403 (S.C.C.) — considered
Templeton v. Stuart (November 11, 1892), Bain J. (Man. Q.B.) — considered
Thibeaudeau, Re (1879), Man. R. temp. Wood 149 (Man. Q.B.) — referred to
Thorne's Hardware Ltd. v. R. (1983), 1983 CarswellNat 530F, [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577, 46 N.R. 91,
1983 CarswellNat 530 (S.C.C.) — considered
Thorson v. Canada (Attorney General) (No. 2) (1974), 1974 CarswellOnt 228, 1974 CarswellOnt 228F, [1975] 1 S.C.R.
138, 1 N.R. 225, 43 D.L.R. (3d) 1 (S.C.C.) — distinguished
Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, 9 Admin. L.R. (4th) 161, [2003] 3 S.C.R. 77, 17 C.R.
(6th) 276, 2003 SCC 63, 2003 CarswellOnt 4328, 2003 CarswellOnt 4329, 311 N.R. 201, 2003 C.L.L.C. 220-071, 179
O.A.C. 291, 120 L.A.C. (4th) 225, 31 C.C.E.L. (3d) 216 (S.C.C.) — referred to
Vancouver Island Railway, An Act Respecting, Re (1994), [1994] 6 W.W.R. 1, (sub nom. British Columbia (Attorney
General) v. Canada (Attorney General)) 91 B.C.L.R. (2d) 1, 166 N.R. 81, 21 Admin. L.R. (2d) 1, 114 D.L.R. (4th) 193,
44 B.C.A.C. 1, 71 W.A.C. 1, [1994] 2 S.C.R. 41, 1994 CarswellBC 188, 1994 CarswellBC 1239 (S.C.C.) — considered
Vriend v. Alberta (1998), 50 C.R.R. (2d) 1, 224 N.R. 1, 212 A.R. 237, 168 W.A.C. 237, 31 C.H.R.R. D/1, [1999] 5
W.W.R. 451, 67 Alta. L.R. (3d) 1, [1998] 1 S.C.R. 493, 98 C.L.L.C. 230-021, 4 B.H.R.C. 140, 1998 CarswellAlta 210,
1998 CarswellAlta 211, 156 D.L.R. (4th) 385 (S.C.C.) — referred to
Walter v. Alberta (Attorney General) (1969), [1969] S.C.R. 383, 3 D.L.R. (3d) 1, 66 W.W.R. 513, 1969 CarswellAlta 4
(S.C.C.) — referred to
Ward v. Canada (Attorney General) (2002), 283 N.R. 201, 211 Nfld. & P.E.I.R. 125, 633 A.P.R. 125, [2002] 1 S.C.R.
569, 2002 SCC 17, 2002 CarswellNfld 52, 2002 CarswellNfld 53, 210 D.L.R. (4th) 42 (S.C.C.) — considered
Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211, 1994 CarswellOnt 496 (Ont. Gen. Div.) — re-
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A.C.W.S. (3d) 820
ferred to
Ward v. Dana G. Colson Management Ltd. (1994), 1994 CarswellOnt 3175 (Ont. C.A.) — referred to
Wells v. Newfoundland (1999), 99 C.L.L.C. 210-047, 180 Nfld. & P.E.I.R. 269, 548 A.P.R. 269, 46 C.C.E.L. (2d) 165,
[1999] 3 S.C.R. 199, 15 Admin. L.R. (3d) 268, 1999 CarswellNfld 214, 1999 CarswellNfld 215, 177 D.L.R. (4th) 73,
245 N.R. 275 (S.C.C.) — referred to
Wood v. Grand Valley Railway (1915), 51 S.C.R. 283, 25 C.R.C. 117, 22 D.L.R. 614, 1915 CarswellOnt 15 (S.C.C.) —
referred to
Worcester v. Georgia (1832), 31 U.S. 530, 6 Peters 515, 8 L.Ed. 483 (U.S. Ga.) — referred to
Statutes considered:
Act respecting Infants and their Estates, Act to Amend the Act entitled, S.M. 1879, c. 27 (43 Vict.)
Generally — referred to
Act respecting Lands Granted to the Children of Half Breeds Heads of Families under The Manitoba Act, S.M. 1892, c. 67
(55 Vict.)
Generally — referred to
Act respecting the Appropriation of certain Lands in Manitoba, Act to amend an, S.C. 1875, c. 52
Generally — considered
Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the
Provinces of Manitoba and British Columbia, S.C. 1874, c. 21
Generally — referred to
Act to authorize the Consolidation of the General Statutes of the Province of Manitoba, S.M. 1878, c. 2 (41 Vict.)
Generally — referred to
Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879, c. 32
Generally — considered
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A.C.W.S. (3d) 820
Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, chapter 3, and to amend section 108 of the
Dominion Lands Act, S.C. 1873, c. 38
Generally — considered
Act to Vest Securities Held for Half-Breed Infants in the Treasurer of this Province, S.M. 1884, c. 25 (47 Vict.)
Generally — referred to
Appropriation of Certain Dominion Lands in Manitoba, Act respecting the, S.C. 1874, c. 20
Generally — considered
Being an Act Respecting Half-Breed Lands, An Act to Amend c. 42 of the Consolidated Statutes of Manitoba, S.M. 1884, c.
24 (47 Vict.)
Generally — referred to
Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III
Generally — referred to
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11
Generally — referred to
s. 23 — referred to
Chapter 34, 84 Victoria, Act to Amend, S.M. 1886, c. 43 (49 Vict.)
Generally — referred to
Chapter 30, 48 Victoria, Act to Amend, S.M. 1888, c. 25 (51 Vic.)
— referred to
Chapter Eleven of 44 Victoria (3rd Sess.), Act to Explain and amend, S.M. 1883, c. 10 (46 & 47 Vict.)
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A.C.W.S. (3d) 820
Generally — referred to
Child and Family Services Authorities Act, S.M. 2002, c. 35
Generally — referred to
Claims to lands in Manitoba for which no Patents have issued, Act respecting, S.C. 1873, c. 6
Generally — referred to
Conflicting Claims to Lands of Occupants in Manitoba, Act respecting, S.C. 1875, c. 53
Generally — considered
Consolidated Statutes of Manitoba, Act respecting the, S.M. 1879, c. 9
Generally — referred to
Consolidated Statutes of Manitoba, Act to Amend Certain of the Acts forming parts of the, S.M. 1880-1881, c. 11
s. 61 — referred to
s. 62 — referred to
Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, reprinted R.S.C. 1985, App. II, No. 11
Generally — referred to
s. 5 — referred to
s. 6 — considered
Constitution Act, 1930 (U.K.), 20 & 21 Geo. 5, c. 26, reprinted R.S.C. 1985, App. II, No. 26
Generally — referred to
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5
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A.C.W.S. (3d) 820
Generally — referred to
s. 55 — referred to
s. 56 — referred to
s. 57 — referred to
s. 90 — referred to
s. 91 ¶ 1 — referred to
s. 91 ¶ 1A [en. (U.K.), 1949 (13 Geo. 6), c. 81, s. 1, reprinted R.S.C. 1985, App. II, No. 33] — referred to
s. 91 ¶ 24 — considered
s. 92 — referred to
s. 92 ¶ 13 — considered
s. 92 ¶ 14 — considered
s. 146 — referred to
Court of Queen's Bench Act, R.S.M. 1987, c. C280
Generally — referred to
s. 34 — referred to
Decrees and Orders on the Equity Side of the Court of Queen's Bench, Manitoba, Act concerning, S.M. 1884, c. 8 (47 Vict.)
Generally — referred to
Dominion Lands Act, S.C. 1872, c. 23
Generally — considered
Final Settlement of Claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, Chapter three, Act for the,
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A.C.W.S. (3d) 820
S.C. 1880, c.7
Generally — considered
Gasoline Tax Act, R.S.B.C. 1979, c. 152
Generally — referred to
Half-Breed Land Grant Act, 1878, S.M. 1878, c. 20
Generally — considered
Half-Breed Land Grant Act, 1879, S.M. 1879, c. 11
Generally — considered
Half-Breed Land Grant Amendment Act, 1877, S.M. 1877, c. 5
Generally — referred to
Half-Breed Land Grant Protection Act, S.M. 1873, c. 44 (37 Vict.)
Generally — considered
Half-Breed Land Grant Protection Act, Act to amend, S.M. 1875, c. 37
Generally — referred to
Half-Breed Land Protection Act, Act to explain certain portions of the, S.M. 1883, c. 29
Generally — referred to
Preamble — referred to
s. 1 — referred to
Half-Breed Lands Act, C.S.M. 1880, c. 42
Generally — referred to
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A.C.W.S. (3d) 820
Housing and Renewal Corporation Act, R.S.M. 1987, c. H160
Generally — referred to
Immigration Act, 1976, S.C. 1976-77, c. 52
Generally — referred to
Indian Act, R.S.C. 1970, c. I-6
Generally — referred to
Infants and their Estates, Act respecting, S.M. 1878, c. 7
Generally — considered
Limitation of Actions Act, S.M. 1931, c. 30
Generally — considered
Limitation of Actions Act, R.S.M. 1940, c. 121
Generally — considered
Limitation of Actions Act, R.S.M. 1987, c. L150
Generally — referred to
Louis Riel Institute Act, S.M. 1995, c. 15
Generally — referred to
Manitoba Act, 1870 (U.K.), S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8
Generally — considered
s. 5(2) — referred to
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A.C.W.S. (3d) 820
s. 22 — considered
s. 22(2) — referred to
s. 23 — referred to
s. 30 — referred to
ss. 30-33 — referred to
s. 31 — considered
s. 32 — considered
s. 32(1)-32(4) — referred to
s. 32(2) — referred to
s. 32(3) — considered
s. 32(4) — considered
s. 32(5) — considered
Manitoba Land Claims Act, 1884, S.C. 1884, c. 26
Generally — referred to
Manitoba Natural Resources Act, S.C. 1930, c. 29
Generally — referred to
s. 13 — referred to
Municipal Act, S.M. 1886, c. 52
Generally — referred to
Newfoundland Act, 1949 (U.K.), 12 & 13 Geo. 6, c. 22, reprinted R.S.C. 1985, App. II, No. 32
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A.C.W.S. (3d) 820
Generally — referred to
Official Language of the Province of Manitoba, Act to provide that the English Language shall be the, S.M. 1890, c. 14
Generally — referred to
Payment of Securities Act, S.M. 1885, c. 34 (48 Vict.)
Generally — referred to
Public Schools Act, S.M. 1890, c. 38
Generally — considered
Quieting Titles Act, S.M. 1881, c. 19 (44 Vict.)
Generally — referred to
Quieting Titles Act, S.M. 1885, c. 30 (48 Vict.)
Generally — referred to
Real Property Act, R.S.M. 1988, c. R30
Generally — referred to
Real Property in the Province of Manitoba, Act respecting, S.M. 1885, c. 28
Generally — referred to
Registry Act, R.S.M. 1987, c. R50
Generally — referred to
Revised Statutes of Canada, Act respecting the, R.S.C. 1886, c. 4
Generally — considered
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A.C.W.S. (3d) 820
Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105, reprinted R.S.C. 1985, App. II, No. 6
Generally — referred to
Preamble — referred to
s. 3 — referred to
Tobacco Act, S.C. 1997, c. 13
s. 19 — referred to
s. 30 — referred to
s. 30(1) — referred to
s. 30(2) — referred to
Tobacco Control Act, S.S. 2001, c. T-14.1
s. 6 — referred to
Treaties considered:
Selkirk Treaty, 1817
Generally — referred to
Treaty No. 1, 1871 (Between Her Majesty the Queen and the Chippewa and Cree Indians of Manitoba)
Generally — referred to
Treaty No. 2, 1871 (Between Her Majesty the Queen and the Chippewa and Cree Indians of Manitoba)
Generally — referred to
Words and phrases considered
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A.C.W.S. (3d) 820
Métis
[The following entry concerns facts leading up to the effective date of the Manitoba Act, 1870 (U.K.), S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8, July 15, 1870.] 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 "halfbreeds". Today, however, both are called "Métis".
.....
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.
park lots
[The following entry concerns the Red River Settlement and facts leading up to the effective date of the Manitoba Act, 1870
(U.K.), S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8.] There was . . . 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.
rights of common
[The following entry concerns the Manitoba Act, 1870 (U.K.), S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8.] 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 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".
children
The plaintiffs also argue the existence of a fiduciary relationship in respect of the section 31 [Manitoba Act, 1870 (U.K.),
S.C. 1870, c. 3, reprinted R.S.C. 1985, App. II, No. 8] 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 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.
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A.C.W.S. (3d) 820
aboriginal title
In my view, the law is clear that aboriginal title is something that aboriginals enjoy independent of the Crown. It logically
follows then that it is something the Crown can recognize, but it is not something the Crown can give.
peaceable possession
Canada argues that the term "peaceable possession" in subsection (4) [s. 32(4) of the Manitoba Act, 1870 (U.K.), S.C. 1870,
c. 3, reprinted R.S.C. 1985, App. II, No. 8] simply acknowledges that Indian title still existed and notwithstanding that, these
people had been in possession free from adverse claims of the Indians at the time Manitoba became a province.
Canada submits, however, that peaceable possession necessitated some degree of occupation. It asserts the case law is clear
that a title by possession requires some degree of occupation of the land. Moreover, a right of preemption was given by subsection 32(4) and preemption requires settlement, inhabitation, and improvement by the preemptor.
.....
In my opinion, Canada was entitled to require some degree of occupation for the existence of peaceable possession. As a
proposition of law, that was, at least arguably, sound and Canada was permitted to do so under the discretion given by the
Act. If its exercise of discretion was carried out in good faith, and there is no allegation to the contrary, it surely cannot be
challenged, certainly at this late date.
ACTION by Manitoba Métis Federation and individual plaintiffs for declaratory relief to address purported historic injustice
of loss of land base Métis people were to have received upon Manitoba's entry into Canadian Confederation.
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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A.C.W.S. (3d) 820
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 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 Flanagan ("Dr. Flanagan"), were expert witnesses. Dr. Ens and Ms. Macdonald are historians; Dr.
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A.C.W.S. (3d) 820
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";[FN1]
• Report of Ms. Macdonald entitled "Events of the Red River Resistance of 1869-70";[FN2]
• Report of Dr. Flanagan entitled "Historical Evidence in the Case of Manitoba Métis Federation v. the Queen";[FN3]
• Report of Dr. Flanagan and Dr. Ens entitled "Métis Family Study";[FN4]
• Report of Dr. Ens entitled "Migration and Persistence of the Red River Métis 1835-1890";[FN5]
• Report of Dr. Ens entitled "Manitoba Métis Study — The Métis Land Grant and Persistence in Manitoba".[FN6]
As well, Canada filed, by consent, the report of Steven E. Paterson entitled "Land Grants for Loyalists".[FN7]
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.
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 3 1/2 days.
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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 2 1/2 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 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.[FN8] 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 NoelJoseph 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 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
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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,[FN9] 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 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 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.
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 thank-
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ful. 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 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.
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.
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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.
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.
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
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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 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.
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
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the United States, in return for cash.
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 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.
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.
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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.[FN10]
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:
... 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 the years leading up to union, that governor was William Mactavish ("Mactavish").
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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 Frenchspeaking 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.
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.
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.
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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.
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 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.
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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 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 Northwestern Territory until quiet possession could be given.[FN11] On November 26, 1869, the Governor General cabled Granville, communicating the request for delay.[FN12] Granville rejected it. But in the meantime, because of this concern and
request, Macdonald, on November 27, 1869,[FN13] 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 27 th 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 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).[FN14]
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.[FN15] 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 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.
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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 Macdonald[FN16] and
Macdonald wrote him on January 3, 1870.[FN17] 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.
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.[FN18] 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).[FN19] While somewhat
different than the first list, it still provided that the area would unite with Canada as a territory. Provincehood would follow at
some future time. The demand for the conclusion of treaties with the several Indian tribes of the territory continued and there
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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 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.[FN20]
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.[FN21]
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.
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
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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,[FN22] excerpts from Northcote's diary,[FN23] the speeches made by
Macdonald and Cartier in Parliament concerning the Bill,[FN24] and other documents.
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:[FN25]
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:[FN26]
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.
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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:[FN27]
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 introduction of the Bill for first reading, he
said:[FN28]
... 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:[FN29]
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.
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
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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:[FN30]
... 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:[FN31]
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 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:[FN32]
... 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:[FN33]
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... 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 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:[FN34]
... 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."[FN35]
118
Later in the Parliamentary debate on May 2, having to do with the issue of the land grant, Macdonald said:[FN36]
... [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.
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
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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.
123
As well, on May 3, a telegram[FN37] 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,[FN38] 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:[FN39]
... 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 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 appropri-
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ate 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 grant and referred specifically to the provisions contained in clauses 26, 27 and 28 of the
Bill.
132
As regards clause 27, he said:[FN40]
... 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 ...[FN41]
... 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:
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... 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 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.[FN42] 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,[FN43] "[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 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:[FN44]
... 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
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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 day[FN45] to Granville, Young reported, "Bill for Govt. of N.W. passed sanctioning conditions agreed upon
with Delegates — [Parliament] prorogued today."
139
On May 18, Ritchot wrote Cartier.[FN46] 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.[FN47] 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:[FN48]
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 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 Scott[FN49] 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:
(Translation.)
Department of Militia and Defence,
Ottawa, 23rd May, 1870.
Gentlemen — With reference to the representations you have submitted respecting the fourth paragraph of Section 32 of
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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,
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,
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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 entry[FN50] 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 31 st 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.
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 Northwestern Territory into the union of Canada effective July 15, 1870.[FN51]
148
On June 24, 1870, Ritchot, having returned to Red River, appeared and addressed the Legislative Assembly of Assiniboia.[FN52] 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 Granville[FN53] 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 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 General[FN54] 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.
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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.
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
ries.
By separate instrument dated July 30, 1870, he also was appointed Lieutenant Governor of the North-West Territo-
154
Archibald received instructions from the Under Secretary of State for the Provinces on August 4, 1870,[FN55] 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 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:[FN56]
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
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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.[FN57] The census reported just under 12,000
persons in the province, consisting of 1,600 white Europeans, approximately 560 Indians, approximately 5,700 French halfbreeds, and just over 4,000 English half-breeds. As well, the census recorded that there were approximately 6,000 half-breeds
(both French and 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,[FN58] 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,[FN59] 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 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.
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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.
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.[FN60] 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 31 st 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.
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
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April 25, 1871.[FN61] 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. 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,[FN62] 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.
173
On May 26, 1871, the Federal Government passed an Order in Council,[FN63] 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 letter[FN64] 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 locali-
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ty 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.
175
On June 17, 1871, Archibald wrote Joseph Howe, the Secretary of State,[FN65] 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.[FN66] 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".
178
Gilbert McMicken ("McMicken") was appointed Dominion Lands Agent in Manitoba in the fall of 1871. He wrote
Macdonald on November 12, 1871.[FN67] 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:[FN68]
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. ...
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180
The plan to which McMicken referred in his November 12, 1871, letter was set out in a memorandum of January 5,
1872.[FN69] 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,[FN70] 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 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 25 th 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 Canada[FN71] 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 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:
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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.[FN72] 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.
185
Following the February 8, 1872, joint address, McMicken and Dennis, by letters dated February 24, 1872,[FN73]
and March 22, 1872,[FN74] 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 halfbreeds 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 General[FN75] and as a result to passage of Order in Council April 15, 1872.[FN76]
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
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delay. Archibald proceeded to do so and reported to Aikins on July 27, 1872.[FN77] 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".
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 Aikins[FN78] 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 halfbreeds, 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:
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 Aikins[FN79] 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
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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,[FN80] Morris asked Macdonald for authority to announce that a plan for allotment had been adopted and would begin
immediately.
197
On November 20, 1872,[FN81] 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 individuals
entitled to them had been completed. He, therefore, requested authority to begin allotment.
198
Morris then received a letter dated December 6, 1872,[FN82] 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 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,[FN83] 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 recipi-
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ents 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.
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 Morris[FN84] 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,[FN85] 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 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 1885[FN86] 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 advantage of by speculators or others seeking to purchase their interest. On March 3,
1873, it passed The Half-breed Land Grant Protection Act.[FN87]
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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 halfbreed, 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.
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, 1874[FN88], 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 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
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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,[FN89] 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. 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.[FN90] 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,[FN91] in which he reported upon Morris's plan to publish the recipient's name along with the land allotted, but disagreed with Morris's plan. Morris wrote directly to the Minister
on February 11, 1874,[FN92] persisting with his suggested plan.
223
On February 28, 1874, Donald Codd ("Codd"), Acting Agent of Dominion Lands, wrote Dennis[FN93] 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.
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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 petitions[FN94] were 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,[FN95] 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 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,[FN96] 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 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.[FN97] 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, Can-
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ada 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, 6 1/2 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,[FN98] 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. 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 Codd[FN99] 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.[FN100] 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.[FN101]
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.
238
The third allotment commenced October 30, 1876, 6 1/2 years after passage of the Act. The public notice published
October 23, 1876,[FN102] 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.
241
On November 18, 1876, the Executive Council of Manitoba sent an address to the federal Privy Council[FN103] in
which as regards the section 31 grant it wrote:
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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,[FN104] 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 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.[FN105]
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 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
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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, 1877[FN106] which, effective July 1, 1877, permitted sales by any HalfBreed 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.[FN107] 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.
251
On that same date, Manitoba also passed An Act respecting Infants and their Estates,[FN108] 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.[FN109] 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.[FN110] 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,[FN111] Deputy Minister A.M. Burgess wrote that
there were about 500 claimants whose 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.[FN112] 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,[FN113] 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
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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, Macdonald[FN114] 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 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.
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:[FN115]
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,[FN116] 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,[FN117] commented upon the first bill of rights which
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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.
265
And Smith in a confidential report to Howe dated April 12, 1870,[FN118] 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,[FN119] 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 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.
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271
Order in Council November 11, 1872,[FN120] 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,[FN121] 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 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,[FN122] 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 11 th November ultimo,
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which secures to 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),[FN123] 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.
278
On September 5, 1873, Dennis wrote Alexander Campbell ("Campbell"), Minister of the Interior,[FN124] 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 petition[FN125] 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 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.
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282
A.H. Whitcher, Inspector of Surveys, wrote Dennis on November 15, 1873,[FN126] 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 Dennis[FN127] 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.
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:[FN128]
... 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,[FN129] in which he stated:
... I took recent occasion to examine the minutes of the Council of Assiniboia from the 4 th 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.
287
As well, Codd wrote similarly on March 28, 1874, as follows:[FN130]
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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).[FN131] 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, 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)[FN132] 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.[FN133] 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,[FN134] though never implemented, had done.
292
On April 30, 1875, Laird wrote Morris[FN135] 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.
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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,[FN136] 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,[FN137] 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:
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.[FN138] 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
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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.
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 Whitcher[FN139] 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,[FN140] 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 onefourth 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 Codd[FN141] and asked for a report from Codd which would be "considered
confidential". The letter reported upon a 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
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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 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 1 st 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 19 th 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.[FN142] He said the evidence submitted on one was unsatisfactory. He wrote:
... 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".
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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 opinion[FN143] 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 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 Interior[FN144] 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 Dennis[FN145] 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?
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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 Codd[FN146] 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 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 memorandum[FN147] 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.
Eighteen are disallowed having only ploughed small patches of land in all cases less than five acres.
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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 Sutherland[FN148] 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.[FN149] But on April 23, 1878, an amendment which had been adopted by the
Senate was refused by the House of Commons.[FN150]
314
On May 5, 1879, Macdonald stated in the House of Commons[FN151] that it was the intention of his government to
recognize "such staked claims as have been followed by possession and improvement".
315
On February 14, 1880, the Legislative Assembly of Manitoba sent an address to the Governor General.[FN152] 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 15 th 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 Macdonald[FN153] 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,[FN154] 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:
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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 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,[FN155] 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 Macdonald[FN156] 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.[FN157] In the
letter he wrote:
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,[FN158] 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.
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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."
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,[FN159] 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,[FN160] 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,[FN161] was passed, referring outstanding matters to the Dominion Lands Board.
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, 1884[FN162] 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.[FN163] 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,[FN164] 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 Land[FN165] and said that as the only class
of cases still unsettled were "claims by virtue of occupation on the 15 th 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 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
lows:
In his report,[FN166] Dr. Flanagan described the "Hay Privilege" as regulated by the Council of Assiniboia as fol-
... 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,[FN167] 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.
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338
On February 8, 1872, the Manitoba Legislature in an address to the Governor General[FN168] 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 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.[FN169] 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,[FN170] 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 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,[FN171] Campbell
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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.
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.[FN172] 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.
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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 (S.C.C.), 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.
349
The plaintiffs filed copies of The Child and Family Services Authorities Act, C.C.S.M. c. C90,[FN173] The Housing
and Renewal Corporation Act, C.C.S.M. c. H160,[FN174] and The Louis Riel Institute Act, S.M. 1995, c. L230.[FN175] 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").
One[FN176] 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:
10.1 Nothing 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.
10.2 This MOU is not intended to create a legally binding agreement but is intended to reflect the mutual understanding of the Parties.
10.3 This MOU is not intended to affect the interpretation of any other agreement between the Parties.
351
Other similar documents were filed as exhibits.[FN177]
352
Two such exhibits[FN178] 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.
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353
Another[FN179] 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.[FN180]
10.1 Nothing in this MOU creates binding legal obligations on any Party nor will the MOU be used in the interpretation
of any other agreement.[FN181]
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.
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) (1966), [1967] 1 A.C. 853 (U.K. H.L.), 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.
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360
The Supreme Court of Canada adopted Lord Guest's formula in Angle v. Minister of National Revenue (1974), 47
D.L.R. (3d) 544 (S.C.C.) (per Dickson J.) at p. 555.
361
More recently, in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.), 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.
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 48 Man. R. (2d) 4 (Man. Q.B.).
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:
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[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.
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 Borowski v. Canada (Minister of Justice), [1981] 2 S.C.R. 575 (S.C.C.).
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.
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 (Man.
C.A.), a judgment delivered June 17, 1988. The appeal was allowed with O'Sullivan J.A. dissenting. The majority did not
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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.
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.
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-
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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 Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279 (S.C.C.). Wilson J. delivered the judgment of the court. The judgment was 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;
(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.
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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 Naken v. General
Motors of Canada Ltd., [1983] 1 S.C.R. 72 (S.C.C.), at 101, "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.
389
As for allowing the doctrine of issue estoppel to prevail, the factors are the usual and the obvious, namely, finality in
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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.
(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 v. Canada (Minister of Indian Affairs & Northern Development),
183 F.T.R. 9 (Fed. T.D.), Native Council of Nova Scotia v. Canada (Attorney General), 2002 FCT 6 (Fed. T.D.), Federation of Saskatchewan Indians v. Canada (Attorney General), 2002 FCT 1001, [2002] F.C.J. No. 1324 (Fed. T.D.), and
Canadian Council of Churches v. R., [1992] 1 S.C.R. 236 (S.C.C.).
391
Maurice, 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.
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:
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[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.
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.
¶ 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 defend-
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ants. 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....
¶ 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 Métis Nation v. Newfoundland & Labrador (Minister of Transportation & Works), 2006 NLTD 119 (N.L. T.D.), 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.
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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 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), 161 D.L.R. (4th) 225 (Ont. C.A.), 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 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
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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.
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.
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 comprehensively, a claim that Canada failed to discharge a fiduciary duty toward the halfbreed children, which duty they argue was constitutionally mandated by section 31. The plaintiffs assert that their action
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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 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 (S.C.C.).
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:
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:
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... 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. Canada (Attorney General) (No. 2) (1974), [1975] 1 S.C.R. 138 (S.C.C.), was not a
case involving the issue of the 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. Canada (Attorney General), [1988] 5
W.W.R. 193 (Man. C.A.). 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 Forest v. Manitoba (Attorney General), [1979] 2 S.C.R. 1032 (S.C.C.), 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,
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[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.
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 (S.C.C.), 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:
¶ 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:
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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, 160 Man. R. (2d) 265, 2001 MBCA 148 (Man. C.A.), 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 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.) v. Roman Catholic Church of Canada, 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.
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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, 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. Winnipeg (City) (1891), 7 Man. R. 273 (Man. Q.B.), and Barrett v. Winnipeg (City) (1891), 8 Man. R. 3
(Man. Q.B.), were each actions commenced to quash by-laws of the municipal corporation of the City of Winnipeg for the
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 (Manitoba P.C.).
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 (1894), 22 S.C.R. 577 (S.C.C.). 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. Manitoba (Attorney General), [1895] A.C. 202 (Manitoba P.C.).
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 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 Prov-
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ince 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 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 [(1982), 12
R.G.D. 242 (Man. Co. Ct.)] 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 [(January 30, 1909), Prud'homme Co. Ct. J.
(Man. Co. Ct.)].
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.
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 (1 st), 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.
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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.
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 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 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.
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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 (S.C.C.), 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 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
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(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 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.
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:
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(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 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 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, 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.
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
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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, 198 D.L.R. (4th) 220, 2001 MBCA 55 (Man. C.A.), wrote, at p. 225:
[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 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:[FN182]
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.
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471
And, the following exchange is reported:[FN183]
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.
472
And later that same day, Smith again is reported[FN184] 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 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 2[FN185] that, "... the Bill, of course, was open to amendment", and
Cartier on the same date,[FN186] when asked, "if the Constitution was to be submitted to the people before being passed",
responded, "No".
478
On May 4, Macdonald told Parliament[FN187] 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."
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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 second time and was referred to the Committee of the
Whole for discussion the following day.[FN188]
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 his letter dated April 28, 1870 to Granville's deputy, Sir F.
Rogers, is as follows:[FN189]
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 21 st
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 Gov-
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ernment did not view, nor would it have accepted, the process as one of the negotiation of a treaty or 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.
489
I do not agree. In Ritchot's diary entry,[FN190] 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:[FN191]
... 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.
493
There can be no doubt that Ritchot and the other delegates were aware of Macdonald's and Cartier's speeches in Par-
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liament 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 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 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
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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 20[FN192] 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,[FN193] 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 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. Ultimately, what was approved by the Assembly was the Act only. No treaty or agreement was mentioned or approved.
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509
Cartier's comment in his confidential report to Young on July 10, 1870,[FN194] 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 Language Rights Under s. 23 of Manitoba Act,
1870 & s. 133 of Constitution Act, 1867, [1985] 1 S.C.R. 721 (S.C.C.), 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 Vancouver Island Railway, An Act Respecting, Re, [1994] 2 S.C.R. 41 (S.C.C.):
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 & Public Works) v. Canadian National Railway (1990), [1991]
1 F.C. 129 (Fed. C.A.), 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
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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.
¶ 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
(S.C.C.), 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 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
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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.
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. R., [1983] 1 S.C.R. 29 (S.C.C.)), 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 (S.C.C.), 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.
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 (S.C.C.), Major J. wrote, at p. 153:
¶ 76 In interpreting statutes relating to Indians, ambiguities and "doubtful expressions" should be resolved in favour of
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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.
525
Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.) 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. Sandy Bay Indian Band, [1990] 2 S.C.R. 85, at 142-43, (S.C.C.), 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 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
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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. Robinson (1992), [1993] 1 F.C. 501 (Fed. C.A.), 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
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.
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528
And, in R. v. Howard, [1994] 2 S.C.R. 299 (S.C.C.), 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.
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 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
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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 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 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 of the new province was controlled until probably 1876 or later by members who were
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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.
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?
Use of Hansard
551
Clearly, the Hansard reports of parliamentary debates are admissible to assist in interpreting the meaning of consti-
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tutional 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 Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 (S.C.C.), and Mahe v. Alberta, [1990] 1
S.C.R. 342 (S.C.C.).
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?
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
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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 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 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?
Aboriginal Title
562
In R. v. Vanderpeet, [1996] 2 S.C.R. 507, at 540, (S.C.C.), Lamer C.J., for the majority, wrote:
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¶ 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. R., [1984] 2 S.C.R. 335 (S.C.C.), Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010 (S.C.C.), and R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 (S.C.C.), 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 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
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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 [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.
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¶ 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 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 is that the land in question was in exclusive occupation of the claimant before the assertion of
British sovereignty.
573
Métis.
In my view, however, Powley, supra, has probably changed the time for identification of aboriginal title as regards
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 Vanderpeet 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-
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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 Vanderpeet 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. ....
¶ 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 Vanderpeet as the template for this discussion. However, we modify the pre-contact focus of the Vanderpeet 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, 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.
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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,[FN195] 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 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 nonMétis. 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.
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 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
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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.
¶ 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
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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. 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.
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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"....
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,[FN196] the second by the Convention of 40,[FN197] the third by
the Convention of 40 or the Provisional Government,[FN198] and the fourth was a list, the origin of which is unknown but
which was carried by Ritchot alone.[FN199]
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:[FN200]
15. That treaties be concluded between the Dominion and the several Indian tribes of the country.
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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 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 Halfbreeds 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 Halfbreeds. 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] compen-
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sation of blankets, powder 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 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 halfbreeds 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,[FN201] 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 halfbreeds who lived with and as Indians.
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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.
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 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 Vanderpeet, 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
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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.
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. R. (1985), [1986] 1 F.C. 3 (Fed. C.A.), 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).
626
In R. v. Sparrow, [1990] 1 S.C.R. 1075, at 1108, (S.C.C.), the court wrote:
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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 Apsassin v. Canada (Department of Indian Affairs & Northern Development), [1995] 4 S.C.R. 344, at 372
and 373, (S.C.C.), 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:
(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.
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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 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.
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 (S.C.C.), and in Taku River Tlingit First Nation v. British Columbia
(Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 (S.C.C.).
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
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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:
¶ 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 Roberts v. R., [2002] 4 S.C.R. 245, at 286, (S.C.C.), 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.
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
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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.
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 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
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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 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.
• 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
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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 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.
• 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 chil-
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dren of the country to extinguish their admitted right as half-breeds. This reservation does not in the least conflict
with the 91st 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):[FN202]
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 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.
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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 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 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.
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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 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.
(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.
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(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".
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,[FN203] a proclamation was issued by the Governor General of Canada addressed to the residents of the Settlement in which, in part, he stated:
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,[FN204] Joseph Howe ("Howe"), Secretary of State for the Provinces, told McDougall that in
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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,[FN205] 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,[FN206] 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 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.
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.
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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.
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.
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.
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Impugned Provincial Enactments
689
Act.
The plaintiffs do not assert that Manitoba passed any legislation undermining rights provided under section 32 of the
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:
(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 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
McNeil v. Nova Scotia (Board of Censors), [1978] 2 S.C.R. 662 (S.C.C.), 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.
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695
And, in Reference re Firearms Act (Canada), [2000] 1 S.C.R. 783 (S.C.C.), 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) (2002), [2003] 1 S.C.R. 6 (S.C.C.), 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 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 O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2, [1987] S.C.J. No. 48 (S.C.C.), 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 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
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civil rights or liberties, but rather refers to proprietary, contractual and tortious rights.
702
In Parsons v. Citizens' Insurance Co. (1881), [1881-85] All E.R. Rep. 1179 (Ontario P.C.), 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 Reference re Provincial Fisheries, [1898] A.C. 700 (Canada P.C.), 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).
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 (S.C.C.), 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 (Canada), supra, the Supreme Court of Canada wrote, at pp. 796-97:
¶ 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
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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 socalled "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 & Culture), [2002] 2 S.C.R. 146, 2002
SCC 31 (S.C.C.), 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 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 bylaw 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 v. Canada (Attorney General), supra, the Supreme Court of Canada made clear that a pith and substance
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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 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.
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,[FN207] the minute of the Executive Council of Manitoba dated November 18, 1876,[FN208] and the address of the Legislative Assembly of Manitoba
dated February 19, 1877.[FN209]
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
"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");
• 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:
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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.[FN210]
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,[FN211] 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 Man. R. 481 (Man. 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 were uniformly recognized by the Commissioners from time to time appointed by the Government to consider disputed claims to patents.
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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 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:
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,...
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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."[FN212]
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.
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.
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 old-
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er. 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
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 Thibeaudeau, Re (1879), Man. R. temp. Wood 149 (Man. Q.B.), 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 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
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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 Man. R. 550 (Man. C.A.), 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, 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.
761
Manitoba argues that both Acts fall squarely within its jurisdiction over the administration of civil justice. There is,
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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,[FN213] 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 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".
769
In any event, Manitoba submits that a full answer to the tax question is found in Mathers, Re (1891), 7 Man. R. 434
(Man. C.A.), a decision of the Manitoba Court of Queen's Bench en banc. This issue is addressed not only in Mathers, Re,
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.
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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,[FN214] 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.
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 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 Man. R. 199 (Man. 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
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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).
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 Mathers, Re which it argues is a case directly on point as it dealt with provincial jurisdiction in respect of beneficial interests in 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
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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 Mathers, Re. In Calgary & Edmonton Land Co. v. Alberta (Attorney General)
(1911), 45 S.C.R. 170 (S.C.C.), 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.
789
In Smith v. Vermillion Hills (Rural Municipality No. 195) (1914), 49 S.C.R. 563 (S.C.C.), 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, Smith v. Vermillion Hills (Rural Municipality No. 195), [1916] 2 A.C. 569
(Saskatchewan P.C.).
790
As well, in British Columbia (Attorney General) v. Canada (Attorney General) (1889), (1889) L.R. 14 App. Cas.
295 (Canada P.C.), 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.
793
The plaintiffs attempted to distinguish Mathers, Re 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 inter-
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ests 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 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 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.
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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.
803
Thus, Manitoba says that its legislation is intra vires and hence constitutional.
804
I agree with the submissions advanced by Manitoba as regards the Manitoba legislation impugned by the plaintiffs,
including any legislation, though not specifically identified by the plaintiffs, which permitted or imposed taxation in respect
of interests in section 31 land prior to grant.
805
In my opinion, the impugned legislation which is identified by the plaintiffs was in each case intra vires the Manitoba Legislature.
806
Such legislation fell clearly under provincial jurisdiction, either section 92(13), property and civil rights, or as regards two Acts, The Decrees and Orders Act, 1884 and The Payment of Securities Act, 1885, under subsection 92(14), the
administration of justice.
807
As regards the attack related to taxation enactments, the law does differentiate between the legal estate in land and
the beneficial interest in land. In this case, there is no dispute that Canada held or owned the legal estate in the section 31 land
until patents were issued. But the beneficial interest in such land was an asset of the person who is entitled ultimately to receive the patent. Such person was a resident of Manitoba and that asset, being the beneficial interest, was subject to taxation
by Manitoba. The plaintiffs have not established, let alone argued, that any such enactment imposed taxation on the land prior
to patent. Rather, the taxation was imposed upon one's interest in the land.
808
Lastly, the impugned legislation, in pith and substance, did not amend or alter the Act. What it did was create or attempt to create a more clearly and strictly regulated regime than was provided by the common law of contract for the sale or
alienation, by those Manitoba residents who wished to do so, of their interests in section 31 lands.
809
There is not, in my view, any basis for a finding, let alone a declaration, of unconstitutionality respecting the impugned Manitoba legislation.
Impugned Federal Enactments
810
The plaintiffs, in paragraphs 49, 51 and 52 of their statement of claim, allege that certain federal enactments are unconstitutional.
811
As regards their claim under section 31 of the Act, the plaintiffs, in paragraph 49, say that such enactments are as
follows:
• Order in Council April 25, 1871;
• Order in Council May 26, 1871;
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• Dominion Lands Act, S.C. 1872, c. 23, section 108;
• Order in Council April 15, 1872;
• Order in Council April 3, 1873;
• Order in Council September 6, 1873;
• An Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, chapter 3, and to amend section
108 of the Dominion Lands Act, S.C. 1873, c. 38;
• An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20;
• Order in Council February 7, 1874;
• Order in Council May 21, 1874;
• Order in Council September 7, 1876;
• Order in Council July 4, 1878;
• An Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879,
c. 32;
• Order in Council April 20, 1885;
• An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4.
812
As regards their claim under section 32 of the Act, the plaintiffs, in paragraph 51, say that such enactments are as
follows:
• Order in Council April 25, 1871;
• Order in Council May 26, 1871;
• Dominion Lands Act, S.C. 1872, c. 23, section 108;
• An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20;
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• An Act to amend "An Act respecting the appropriation of certain Lands in Manitoba", S.C. 1875, c. 52;
• An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c. 53;
• Order in Council April 20, 1876;
• Order in Council December 19, 1876;
• Order in Council April 12, 1880;
• An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three, S.C. 1880, c. 7;
• Order in Council February 25, 1881;
• An Act to extend the limitation of time under the Act forty-third Victoria, chapter seven, intituled "An Act for the final
settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three", S.C. 1884, c.
26 (short title: The Manitoba Land Claims Act, 1884);
• An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4.
813
As regards their claim to the rights of cutting hay and rights of common under subsection 32(5) of the Act, the plaintiffs, in paragraph 52, say that such enactments are as follows:
• Order in Council April 25, 1871;
• Order in Council May 26, 1871;
• Orders in Council April 3 and April 17, 1874.
814
And, in paragraph 53 of the statement of claim, the plaintiffs assert the following:
53. The Plaintiffs say that, to the extent that the above enactments altered the obligations set out in sections 31 and 32 of
the Manitoba Act, the enactments were, by reason of section 6 of the British North America Act, 1871 (34 and 35 Vict.
C. 28), beyond the constitutional competence of Parliament and the Legislature and were therefore invalid and of no
force and effect.
815
I turn then to deal with each of the impugned federal enactments.
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(1) those which relate to the plaintiffs' claim to entitlement under section 31 of the Act:
Order in Council April 25, 1871
816
The plaintiffs assert that this Order in Council was the single most important regulation governing the implementation of section 31. They argue that it was contrary to section 31 in that it provided:
(a) that all "half-breed" residents, including all heads of families, would share in the distribution of the 1,400,000 acres;
(b) that the individual allotments from the lands designated by the Lieutenant Governor should be distributed by lottery;
The plaintiffs say that the section 31 lands were to be granted in family blocks.
(c) that there would be no conditions of settlement;
The plaintiffs say that this had the effect of making the allotments more attractive to speculators who would not be required to improve or settle upon the lots prior to resale, and enabled transfers of ownership without the land having been
first settled, contrary to section 31.
(d) In addition, the plaintiffs complain that it failed to provide any restriction on alienation of the allotments prior to
grant.
The plaintiffs assert that this failure led to widespread sales and assignments of the allotments of land prior to grant and
frustrated the provision of section 31 that the land "shall be granted to the said children respectively". They assert that
this is to be contrasted with the Order in Council's prohibition of alienation of preemption or homestead rights prior to
grant.
Order in Council May 26, 1871
817
The plaintiffs assert that this Order in Council "invited" settlement by newcomers in advance of survey and assured
such persons security of title. They argue it was unconstitutional in that it purported to protect new settlers in the enjoyment
of these lands but did not reserve from its operations lands needed to fulfill the provisions of section 31 or section 32. The
plaintiffs say it therefore had the effect of promoting encroachments by new settlers on lands promised under sections 31 and
32.
Dominion Lands Act, S.C. 1872, c. 23, section 108
818
The plaintiffs argue that section 108 of this Act gave statutory force to the Orders in Council dated April 25, 1871,
and May 26, 1871, and that to the extent it purported to do so, was unconstitutional.
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Order in Council April 15, 1872
819
The plaintiffs assert that this Order in Council was unconstitutional in that:
(a) it stated that the "surveys in Manitoba are sufficiently far advanced to enable a selection", whereas selection had already commenced and was never said to be subject to the completion of, or the state of advancement of surveys;
(b) it stated that the Surveyor General recommended the selection of land be made by townships, whereas the selection
was to be at the discretion of the Lieutenant Governor;
(c) it "instructs" the Lieutenant Governor to select townships rather than parts of townships, whereas section 31 directs
him to select "such lots or tracts in such parts of the Province as he may deem expedient"; and
(d) it purports to restrict to a "due proportion" the woodlands of the Province that could be included in the 1,400,000
acres.
820
The plaintiffs thus say that this Order in Council had the effect of removing the discretion of the Lieutenant Governor to select the 1,400,000 acres and that it was inconsistent with section 31 in respect of Order in Council April 25, 1871,
and actions taken by Archibald thereunder.
Order in Council April 3, 1873
821
The plaintiffs assert this Order in Council was ultra vires in that it purported to vary the provisions of Order in
Council April 25, 1871, contrary to the Dominion Lands Act, section 108. They say it relied upon "a strict interpretation of
clause 31" and thereby was contrary to the Nowegijick principle. As well, it had the effect of throwing into disarray all proceedings taken to that date under section 31, thereby causing further delay in distributing the land.
Order in Council September 6, 1873
822
The plaintiffs allege that it was unconstitutional in that it withdrew the outer two miles from the land set apart for the
half-breeds, thus cancelling the earlier selection of those lands that were in the outer two miles, and replacing them with less
valuable lands.
An Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, chapter 3, and to amend section 108 of
the Dominion Lands Act, S.C. 1873, c. 38
823
This Act confirmed Order in Council April 3, 1873. The plaintiffs say it provided an unconstitutional definition of
"children" in that it excluded those children who were themselves "heads of families". It, therefore, had the effect of excluding from entitlement all married children, including those with children but no land of their own, and who continued to live
with the head of the family. As well, the plaintiffs allege the statute was unconstitutional in that it invalidated proceedings
properly taken under Order in Council April 25, 1871, including the selection of townships which had been made by the
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Lieutenant Governor in 1871 and 1872, thereby throwing the entire process into disarray.
An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20
824
The plaintiffs say this Act purported to replace with scrip, rights to land denied by S.C. c. 38. They say this was unconstitutional because children wrongly excluded as "heads of families" by S.C. c. 38 had a right to real property. The Act
provided that "half-breed heads of families" included "half-breed mothers" as well as "half-breed fathers", regardless of
whether the mothers were "heads of families" themselves.
Order in Council February 7, 1874
825
The plaintiffs assert this Order in Council was unconstitutional in that it cancelled the allotment for the parish of St.
Boniface as well as the drawing of lots in that allotment, and ordered a new allotment and distribution.
Order in Council May 21, 1874
826
The plaintiffs assert this Order in Council was unconstitutional in that it cancelled the allotment for the parish of Oak
Point and Lake Manitoba, and ordered a new allotment.
Order in Council September 7, 1876
827
The plaintiffs assert this Order in Council was contrary to section 31 of the Act in that it reduced the estimate of the
number of children entitled to share in the distribution of the 1,400,000 acres from the figure based on the census of December 1870, which yielded 190 acres per child, to a smaller number, which yielded a distribution of 240 acres precisely to each
child. This smaller number, the plaintiffs say, was an unreasonable estimate and contrary to the facts known to the Government of Canada at the time. As a result of the new estimate, the Order in Council cancelled the steps taken by Archibald and
Alexander Morris ("Morris") to select land and allot the same among the children referred to in section 31. The plaintiffs say
the cancellation of the allotment constituted an expropriation of an interest to the allottees. As well, they allege that this Order
in Council was contrary to the Dominion Lands Act which had given legislative effect to the earlier orders in council.
Order in Council July 4, 1878
828
The plaintiffs say this Order in Council was contrary to section 31 in that it rescinded section 6 of Order in Council
April 25, 1871, which stated that minors would not receive their patents prior to the age of 18 years and, as well, rescinded
section 7 of that Order in Council which provided that when a claimant died before being entitled to receive a patent by arriving at the age of 18 years, recorded claims would descend according to provincial laws. They assert it had the effect of facilitating the sale of children's allotments regardless of the age of the allottee.
An Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879, c. 32
829
The plaintiffs assert this Act was unconstitutional in that it further degraded rights to land under section 31 by re-
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placing them with scrip, a form of personal property. They say this was invalid to the extent that it dealt with those children
who had been improperly disqualified as "heads of families".
Order in Council April 20, 1885
830
The plaintiffs say this Order in Council is contrary to section 31 in that it substituted scrip for grants of land to halfbreed children who had proved that they were entitled to a share of the lands promised by section 31 of the Act. As well, it
was contrary to section 31 in that it provided that any claims to a share in the 1,400,000 acres that were not filed by May 1,
1886, would cease and determine.
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4
831
The plaintiffs say this Act purported to repeal numerous sections of the Act including sections 31 and 32 contrary to
section 6 of the Constitution Act, 1871.
(2) those which relate to the plaintiffs' claim to entitlement under section 32 of the Act:
Order in Council April 25, 1871
832
The plaintiffs assert that this Order in Council provided rules governing occupation of Crown lands by newcomers
without reserving lands described in section 32 of the Act.
Order in Council May 26, 1871
833
The plaintiffs assert that this Order in Council was unconstitutional in that it purported to protect new settlers in the
enjoyment of lands but did not reserve from its operations lands required to fulfill the provisions of section 32 and it had the
effect of promoting encroachments by new settlers on lands promised by that section.
Dominion Lands Act, S.C. 1872, c. 23, section 108
834
The plaintiffs assert that this statute was unconstitutional to the extent that it purported to confirm Orders in Council
April 25, 1871, and May 26, 1871.
An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, c. 20
835
The plaintiffs assert that this Act is unconstitutional in that it dealt with lands protected under subsections 32(3) and
(4) and treated them as a single class. It thereby purported to alter subsection 32(4) by restricting the rights thereunder to
claimants who became required to pass a more stringent test than "peaceable possession". It had the effect of excluding persons who had been in peaceable possession of lands in the province at the time of the transfer, but without having "undisturbed occupancy" as defined by a level of improvement satisfactory to the land officers in the Dominion Lands Branch. As
well, it purported to amend the date for entitlement in subsection 32(4) from July 15, 1870 to March 8, 1869.
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An Act to amend "An Act respecting the appropriation of certain Lands in Manitoba", S.C. 1875, c. 52
836
The plaintiffs assert that this was unconstitutional in that it amended the date of March 8, 1869 for those claiming
under subsection 32(3) to July 15, 1870. They say the effect of the statute was to require actual peaceable possession on July
15, a time when many Métis were away on a buffalo hunt.
An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c. 53
837
The plaintiffs state that this Act replaced 36 Vict. c. 6 which had provided reasonable means for adjusting conflicting
claims. This new enactment was unconstitutional, the plaintiffs say, in that it empowered the commission to rule in favour of
a settler claiming pursuant to Order in Council May 26, 1871, over someone claiming under section 32 of the Act. As well, it
gave the sole discretion to the commissioners to be guided in their proceedings and report by the "justice and equity of the
case without regard to legal forms or to the strict letter of the law or legal rules of evidence" and it did not permit claims
where the dispute was between individuals and the Crown; for example, when a claim under section 32 was rejected by the
land officer and hence not referred to Ottawa for a formal ruling.
Order in Council April 20, 1876
838
The plaintiffs assert this Order in Council is contrary to section 32 in that it divided claims described in a memorandum dated January 29, 1876 from the Minister of the Interior into five categories, two of which pertained to lands taken up
prior to July 15, 1870.
839
They argue the Order in Council described the first category as lands taken up prior to six months before July 15,
1870, rather than on the transfer date as required by subsection 32(4), and it incorrectly, and contrary to the known facts, said
that the usage of the country recognized by the Council of Assiniboia was for a person to employ a surveyor to survey and
lay out the land which was rarely the case. While it acknowledged that old settlers could be protected even when few or no
improvements had been made, so long as the ownership of the land was recognized in the community (as constituting peaceable possession pursuant to subsection 32(4)), it restricted this recognition to surveyed lands taken up prior to six months
before the transfer date.
840
The second category described lands claimed to have been taken up, which had not been surveyed or "occupied" but
which had been marked out by stakes prior to July 15, 1870, and stated that these were not entitled to consideration, even
though they were alleged to have been held in "peaceable possession".
841
The other three categories all dealt with lands taken up and settled upon after July 15, and provided that such lands
would be granted to the new settlers so long as they were taken up prior to the lands around them being reserved for distribution pursuant to section 31. To the extent that this excluded lands from otherwise reserved townships selected for "Half-Breed
Settlement", it was contrary to section 31.
Order in Council December 19, 1876
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842
The plaintiffs assert this Order in Council was unconstitutional in that contrary to section 33 of the Act, it provided
that the Governor in Council did not have to approve grants of land under section 32. As well, it provided for unconstitutional
practice of permitting local officials of the Dominion Lands Branch of the Department of the Interior to refuse claims, and to
refer to the Department of Justice only those claims which appeared to them to be valid. The practice of the said officials was
to recognize only claims to lands where there were "valuable" improvements as of July 15, 1870.
Order in Council April 12, 1880
843
This Order in Council relates to the claims staked just before July 15, 1870. No assertion was advanced by the plaintiffs in respect of this Order in Council.
An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter
three, S.C. 1880, c. 7
844
This Act provided that claims under subsections 32(3) and (4) would cease if no application for patent had been
made by May 1, 1882, or six months thereafter if claimants had not established their claims to the satisfaction of the Minister.
The plaintiffs assert this was contrary to subsection 32(3) which gave the right to convert title by occupancy to freehold "if
required by the owner" without limitation by time, and say that those persons who had a right of preemption pursuant to subsection 32(4) could not have it removed by statute.
Order in Council February 25, 1881
845
The plaintiffs assert this Order in Council is contrary to section 32 in that it purports to require certain claimants of
staked claims to purchase lands as if they were homesteaders, rather than providing them with a free grant, under subsection
32(4) in accordance with the assurances made by Cartier.
An Act to extend the limitation of time under the Act forty-third Victoria, chapter seven, intituled "An Act for the final settlement of claims to lands in Manitoba by occupancy, under the Act thirty-third Victoria, chapter three", S.C. 1884, c. 26 (short
title: The Manitoba Land Claims Act, 1884)
846
The plaintiffs assert this Act, which extended the time for bringing claims to May 1, 1886, was unconstitutional for
the same reasons referred to respecting S.C. 1880, c. 7; i.e., that the enjoyment of rights by the claimants which were not time
limited under the Act could not be so limited or lost as a result of this Act.
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4
847
The plaintiffs say this Act, which purported to repeal numerous sections of the Act, including sections 31 and 32,
was contrary to section 6 of the Constitution Act, 1871.
(3) those which relate to the plaintiffs' claim to the rights of cutting hay and rights of common under subsection 32(5) of
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the Act:
• Orders in Council April 25, 1871, and May 26, 1871
• Orders in Council April 3, 1874, and April 17, 1874
The plaintiffs assert these Orders in Council are unconstitutional in that they gave priority to new settlers who had entered upon and improved lands subject to rights of common and of cutting hay, contrary to subsection 32(5).
As well, Order in Council April 17, 1874, permitted compensation to the holders of subsection 32(5) rights to be by way
of a grant of scrip contrary to that section which required that such rights be subject to fair and equitable commutation by
grants of land.
848
In response to the plaintiffs' allegations concerning the impugned federal enactments, Canada says that the essence
of the plaintiffs' attack as to the vires of such enactments is that they altered the provisions of the Act in contravention of section 6 of the Constitution Act, 1871. That section reads:
Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the
provisions of the last-mentioned Act of the said Parliament insofar as it relates to the Province of Manitoba, or of any
other Act hereafter establishing new Provinces in the said Dominion, subject always to the right of the Legislature of the
Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and
members of the Legislative Assembly and to make laws respecting elections in the said Province.
849
Canada says the Act received royal assent May 12, 1870, and was given constitutional force on June 29, 1871 by the
Imperial Parliament. Section 5 of the Constitution Act, 1871 deemed the Act "to have been valid and effectual for all purposes whatsoever from the date at which ... [it] received the assent, in the Queen's name, of the Governor General of the said
Dominion of Canada."[FN215]
850
Canada argues that the Act by its very wording contemplated and/or required regulations to be enacted from time to
time pursuant to sections 31 and 32 of the Act in order to settle and effectively implement:
(a) the scheme by which lands would be granted to the Métis children under section 31;
(b) the terms and conditions for the right of preemption under subsection 32(4); and
(c) the provisions for ascertaining and adjusting the rights of common and of cutting hay under subsection 32(5).
851
Canada argues that while a pith and substance analysis is not required in respect of the impugned federal enactments
in this case, the approach used by courts to determine purpose and effect in cases where a pith and substance analysis is required, is also the correct approach to be taken here.
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852
In that regard, purpose and effect must be derived from the wording of the enactment itself. In Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 (S.C.C.), L'Heureux-Dubé J., for the majority, wrote, at pp. 541-42:
As Lord Watson noted in Salomon v. Salomon & Co., [1897] A.C. 22, at p. 38, the ""Intention of the Legislature" is a
common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an
omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be
legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary
implication."
853
Canada asserts that so long as its enactments did not eradicate rights given by sections 31 and 32, they must be taken
as coming within the broad discretion afforded by those sections, whether by statute or order in council, and no challenge to
their vires can be sustained.
854
But for two enactments, Canada asserts that the purpose and effect of each of the challenged enactments was to implement rather than alter sections 31 and 32. The two enactments in question are:
(1) Order in Council April 25, 1871[FN216]
Canada acknowledges that this Order in Council was ultra vires the Act but only to the extent that it allowed heads of
family to participate in the grant of the 1,400,000 acres.
That error was corrected by Order in Council April 3, 1873,[FN217] and for greater certainty, by S.C. 1873, c. 38 (An
Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, chapter 3, and to amend section 108 of
the Dominion Lands Act).[FN218] This latter statute was deemed necessary because the Dominion Lands Act, S.C. 1872,
c. 23[FN219] had, by section 108, confirmed "all proceedings properly taken under Order in Council dated April 25,
1871".
(2) S.C. 1874, c. 20 (An Act respecting the appropriation of certain Dominion Lands in Manitoba)[FN220]
Canada agrees this statute was ultra vires the Act but only to the extent that it required claimants under subsection 32(4)
to show they were in possession of their lands by March 8, 1869 instead of July 15, 1870.
That error was corrected by S.C. 1875, c. 52 (An Act to amend "An Act respecting the appropriation of certain Lands in
Manitoba"),[FN221] which reinstated July 15, 1870 as the operative date. The plaintiffs do not impugn this statute insofar as it changed the date for claims under subsection 32(3) to July 15, 1870 from March 8, 1869.
855
While acknowledging that both of these enactments were ultra vires the Act, Canada asserts that both inconsistencies
were subsequently remedied, as indicated, and that declaratory relief as sought by the plaintiffs is therefore inappropriate on
the ground of mootness.
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856
As regards the plaintiffs' challenge of several of the enactments on the basis that they provided scrip to eligible persons when the Act required land, Canada asserts that that complaint is without foundation. It refers to section 33 of the Act
which provides that:
The Governor General in Council shall from time to time settle and appoint the mode and form of grants of land from the
Crown, and any order in council for that purpose when published in the Canada Gazette, shall have the same force and
effect as if it were a portion of this Act.
Canada submits that prospectively section 33 gave any regulations made in that regard the same force and effect as if they
had been part of the Act to begin with. As well, Canada argues that scrip was simply a mode and/or form of granting Crown
land to individuals; hence, the question of inconsistency with the Act does not arise.
857
As regards the plaintiffs' attack upon An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c. 4,[FN222]
which by Schedule A purported to repeal sections 31 and 32 of the Act, Canada refers to subsection 5(2) of the Act, which
provided that the enactments mentioned in Schedule A were only repealed "so far as the same are within the legislative authority of the Parliament of Canada". Thus, Canada says, there is no inconsistency between the purpose and effect of this
statute and section 6 of the Constitution Act, 1871.
858
Canada asserts that the clear intent of sections 31 and 32 of the Act was to provide a onetime benefit.
859
Of necessity, there had to be a time limit associated with that especially as regards section 31. The only way there
could be an equitable division of 1,400,000 acres would be to implement a cut-off date so as to determine the number of people who would share equally in the 1,400,000 acres. Canada argues that once that had been done and the requisite number of
patents issued, there was no need for the section anymore. Its repeal was not inconsistent with the Act.
860
As regards section 32 Canada says it was no longer required once patents had issued. Almost all section 32 grants
were issued by 1886.
861
Alternatively, Canada asserts that the repeal of sections 31 and 32 is, in the circumstances, only of academic interest
and not a basis for a declaration.
862
With the two exceptions noted, Canada submits that none of the impugned instruments were ultra vires the Act. In
fact, all but two of them, Canada asserts, fell squarely within the broad discretion given to Parliament and the Governor General in Council in carrying out the provisions of sections 31 and 32 of the Act.
863
The Act is a constitutional document which provided for the creation of a new province, Manitoba. The Act has various components. Sections 30 to 33 of the Act pertained to the lands of the new Province.
864
Section 30 provided, with some exceptions, for the administration of the ungranted and wastelands in the Province
by the Government of Canada.
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865
Section 31 provided for the 1,400,000-acre grant and for the enactment of regulations from time to time by the Governor General in Council for the selection and allotment of the lands and for the granting of them "in such mode and on such
conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine."
866
Section 32 provided "for the quieting of titles, and assuring to the settlers in the Province, the peaceable possession
of the lands now held by them."
867
As regards those persons who enjoyed peaceable possession of land in those parts of the Province where Indian Title
had not been extinguished and hence did not hold the lands by way of title from or with the sanction of the HBC, subsection
32(4) gave them a right of pre-emption to such land, but "on such terms and conditions as may be determined by the Governor in Council."
868
As well, under subsection 32(5), the Governor General in Council was specifically empowered to make regulations
which would fairly and equitably ascertain and adjust the rights of common and hay rights enjoyed by the settlers and commute the same by grants of land from the Crown.
869
And section 33 empowered the Governor General in Council to settle and appoint from time to time the mode and
form of grants of land from the Crown. It also provided that any Order in Council for that purpose would have the same force
and effect as if it were a portion of the Act.
870
The Act is clear. It provides for the section 31 grant and for the quieting of titles under section 32. Clearly, the mechanics necessary to accomplish Parliament's mandate could not be provided for in the Act. This would have to follow either
by statute or by regulation, particularly in the circumstances as existed, that is, the creation of the new province and all that
that would entail.
871
Parliament recognized this. Considerable discretion was contemplated and specifically provided for in the Act respecting the lands of the Province. This was endorsed by the Imperial Parliament when it gave the Act constitutional force by
the enactment on June 29, 1871, of the Constitution Act, 1871.
872
The plain language of the Act places this discretion in the hands of the Governor General in Council.
873
The plaintiffs' attack on the impugned enactments is, in my view, founded upon assertions that are not within the Act
or that do not apply here, or fail to recognize the scope of the discretion afforded by Parliament to the Governor General in
Council.
874
Some brief examples are as follows:
• The plaintiffs say that Order in Council April 25, 1871, was contrary to section 31 in that it provided that individual allotments from the lands designated by the Lieutenant Governor should be distributed by lottery, whereas they assert the
section 31 lands were to be granted in family blocks. As I have already concluded, there was no treaty or agreement here,
simply an Act of Parliament. And there is nothing in the Act or upon which a fair reading of the Act would enable one to
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say that the section 31 lands were to be granted in family blocks. Rather, this provision in the Order in Council is part of
and consistent with the discretion given to the Governor General in Council.
• The plaintiffs assert as well with respect to Order in Council April 25, 1871, that it provided there would be no conditions of settlement. This too was within the discretion afforded by section 31 to the Governor General in Council. While
Cartier's statement in Parliament in the debates leading to passage of the Act can, in my view, do nothing more than give
some insight into his thinking, it is clear from what he said that the reasons which he espoused at least evidenced some
thought and gave some reasoned explanation for his view that conditions ought not to be attached which, but for the fact
that they were his comments alone, are consistent with a reasoned and reasonable exercise of discretion on the part of the
Government.
• The plaintiffs assert that Order in Council April 3, 1873, was ultra vires as it relied upon a strict interpretation of section 31 and thereby was contrary to the Nowegijick principle. As I have already concluded, the Nowegijick principle is
not applicable in the circumstances of this case.
• The plaintiffs assert that Orders in Council February 7, 1874, pertaining to the Parish of Saint Boniface and Order in
Council May 21, 1874, pertaining to the Parish of Oakpoint and Lake Manitoba were unconstitutional in that they respectively cancelled the allotment for those parishes and ordered a new allotment and distribution. But the evidence was
this occurred by reason of errors in survey and was the result of Canada, in its discretion, wanting to have these errors
corrected.
• The plaintiffs assert that Order in Council September 7, 1876, was contrary to section 31 in that it reduced the estimate
of the number of children entitled to share in the distribution of the land grant from the figure based on the census of December 1870, which yielded 190 acres per child, to a smaller number, which yielded a distribution of 240 acres to each
child. There is no question that the decision turned out to be significantly in error. But the exercise of one's discretion allows for error so long as there is no evidence of bad faith, sharp conduct or the like. There is no such evidence in this
case. Donald Codd's explanation for his decision is thorough and reasoned, albeit significantly wrong.
• The plaintiffs attack both legislation and Orders in Council that substituted scrip for grants of land. As regards section
31, the scrip was given as a result of the error in the number of eligible claimants and the resulting size of the grant, the
result of which was that some 963 children did not receive a part of the 1,400,000 acres. The decision to grant scrip in
lieu of land was a judgment call made by Canada to attempt to remedy the result of that error given that the full grant,
and then some, had been exhausted. As regards the other instances of the granting of scrip in lieu of land, these too were
the result of discretionary decisions made by Canada without any evidence of bad faith or sharp practice and, in my
view, were authorized under section 33 of the Act.
875
With the two exceptions acknowledged by Canada, it is my view that none of the impugned federal enactments were
contrary to sections 31 and 32 of the Act. Rather, they were passed as contemplated by the legislation for the purpose of administering and implementing that which sections 31 and 32 provided.
The Doctrine of Paramountcy
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876
The plaintiffs argue that even if the impugned Manitoba legislation referred to above is intra vires the Province, it
conflicted with valid federal laws and therefore was inoperative to that extent on the basis of the doctrine of paramountcy.
877
The recent case of Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13 (S.C.C.),
dealt with the doctrine of paramountcy. In that case, Rothmans sought a declaration that section 6 of the Saskatchewan Tobacco Control Act, S.S. 2001, c. T-14.1, was, by virtue of the paramountcy doctrine, inoperative in light of section 30 of the
federal Tobacco Act, S.C. 1997, c. 13. Section 19 of the federal Act prohibited the promotion of tobacco products and tobacco product-related brand elements, except as authorized elsewhere in the Act or its regulations. The provisions following section 19 both prohibited specific types of tobacco product promotion and permitted other types of promotion that section 19
would otherwise have prohibited. Among those provisions, subsection 30(1) provided that, "subject to the regulations, any
person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element." Subsection 30(2) further provided that retailers might post signs indicating the availability and price of tobacco products.
878
Section 6 of the provincial Act banned all advertising, display and promotion of tobacco or tobacco-related products
in any premises in which persons under 18 years of age were permitted.
879
Major J., writing for a unanimous court, found that the provincial legislation was not inoperative by virtue of the
paramountcy doctrine. He wrote, at p. 193:
¶ 11 The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency. ...
880
At p. 195, he wrote:
¶ 15 It follows that in determining whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s. 30 of the
Tobacco Act so as to be rendered inoperative through the paramountcy doctrine, two questions arise. First, can a person
simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act? Second, does s. 6 of The
Tobacco Control Act frustrate Parliament's purpose in enacting s. 30 of the Tobacco Act?
881
At pp. 195-96, he wrote:
¶ 17 Read in the context of the Tobacco Act as a whole, it is clear that the purpose and effect of s. 30 is to define with
greater precision the prohibition on the promotion of tobacco products contained in s. 19. Specifically, it serves to exclude from the wide net of s. 19 promotion by way of retail display. In this way, it is like ss. 22(2), 26(1) and 28(1) of the
Tobacco Act, which also exclude from the s. 19 prohibition certain types of tobacco product promotion that it might
otherwise capture. This demarcation of the s. 19 prohibition represents a measured approach to protecting "young persons and others from inducements to use tobacco products", one of the purposes of the Tobacco Act set out in s. 4.
¶ 18 However, in demarcating the scope of the s. 19 prohibition through s. 30, Parliament did not grant, and could not
have granted, retailers a positive entitlement to display tobacco products.
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882
Major J. went on to find that dual compliance was possible with respect to both the provincial and federal legislation
and further that the provincial legislation did not frustrate the legislative purpose underlying section 30 of the Tobacco Act.
He, therefore, concluded that the doctrine of federal legislative paramountcy did not apply.
883
Following Rothmans, Benson & Hedges Inc., supra, the two questions which must be considered and answered in
this case or whenever the paramountcy doctrine is raised are:
(1) Can a person simultaneously comply with both provisions?
(2) Does the provincial legislation frustrate Parliament's purpose?
884
In this case, the plaintiffs assert that the doctrine of paramountcy applies in the circumstances of this case so as to
invalidate the Manitoba legislation which the plaintiffs impugn in paragraph 50 of its statement of claim.
885
The plaintiffs say that Canada's policy of settlement and not sales was reiterated by Order in Council March 23,
1876.[FN223] That Order in Council related to section 31 lands and provided in part as follows:
The lands referred to consist of those appropriated under Section 31 of the Act 33 Vict., chap. 3, for the children of HalfBreed heads of families residing in the Province at the time of the transfer to Canada; and the said lands were to "be
granted to the said children, respectively, in such mode, and on such conditions as to settlement, or otherwise, as the
Governor General in Council might from time to time determine".
The mode of allotting the lands and the classification of persons among whom the same should be distributed, have been
authoritatively settled; but, previous to the issue of patents, it is necessary to deal with applications which have been
made by persons claiming to hold assignments of Half-Breed Land rights, who ask to have the patents issued to them, direct, under such assignments.
Respecting this question, the undersigned begs to state, that, with a view to discourage the operations of speculators in
these lands, no prospect has been at any time held out that such assignments would be recognized by the Government;
and, believing such policy to be directly in the interests of the persons for whose benefit the lands were appropriated, he
respectfully recommends that the same now receive the authority of the Privy Council.
886
Order in Council March 23, 1876, was repealed in 1893. But the plaintiffs argue that while it was extant, all of
Manitoba's legislation relating to the sale of allotments was in conflict with it.
887
The plaintiffs assert that there cannot be a federal law which says sales of allotments would not be recognized standing together with provincial legislation authorizing such sales. They argue that in such a case, there exists an impossibility of
compliance with both, hence an express contradiction. Further, they argue that compliance with the provincial legislation
would frustrate the purpose of the federal legislation. Accordingly, the plaintiffs say that such provincial legislation is inoperative by reason of the doctrine of paramountcy.
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888
In addressing the plaintiffs' position respecting the doctrine of paramountcy, Manitoba raises two preliminary points.
Firstly, the statement of claim in this action makes no reference to the doctrine of paramountcy nor seeks relief thereunder
and the plaintiffs should not now be permitted to seek a remedy not asked for in the statement of claim.
889
Secondly, Manitoba refers to the claims advanced and/or the relief sought by the plaintiffs in paragraphs 50, 58(a)
and 58(c) of the statement of claim.
890
In paragraph 58(a), the plaintiffs seek a declaration that such statutes were ultra vires the Province of Manitoba "or
were otherwise unconstitutional", and in paragraph 58(c) seek a declaration that the statutes "unconstitutionally interfered
with the fulfillment of the obligations under section 31 of the Act".
891
As regards paragraphs 58(a) and (c), Manitoba asserts that there is no pre-1982 doctrine of "otherwise unconstitutional". As well, it says that there is no doctrine of unconstitutional interference. It argues that laws are either valid (intra
vires) if enacted within the powers allocated by the constitution or invalid (ultra vires) if enacted outside of those powers. It,
therefore, asserts that there can be no declaration that its legislation either was "otherwise unconstitutional" or unconstitutionally interfered with other legislation.
892
As to paragraph 50, the plaintiffs there allege that certain Manitoba statutes are unconstitutional. Manitoba argues
that the doctrine of paramountcy applies only when there is a constitutionally valid federal law and a constitutionally valid
provincial law that are inconsistent. Thus, Manitoba says that for the plaintiffs to invoke the doctrine of paramountcy, they
are advancing a position and seeking relief on a basis wholly inconsistent with their case as pled. To invoke or seek to rely on
the doctrine of paramountcy, the plaintiffs must acknowledge the constitutionality of the Manitoba legislation which they
assert to be unconstitutional; otherwise, the doctrine does not apply.
893
And, says Manitoba, should the doctrine of paramountcy be successfully argued, the remedy is for a court to find the
provincial law inoperative to the extent of the inconsistency, not to declare it unconstitutional. The provincial law is not declared unconstitutional for the very reason that it must be constitutional for the doctrine to apply. The effect of application of
the doctrine of paramountcy is that the provincial law stands inoperative until such time as the federal law is repealed at
which point the provincial law is automatically revived.
894
Further, Manitoba argues that it is inappropriate for the plaintiffs in this case to seek a declaration that Manitoba
laws are inoperative when such laws have already been repealed.
895
The two preliminary points aside, Manitoba argues that the paramountcy doctrine does not render inoperative the
legislation attacked by the plaintiffs. It says that an examination of Order in Council March 23, 1876, makes clear that it is
not in conflict with the impugned Manitoba legislation so as to render impossible compliance with both the federal enactment
and the impugned Manitoba legislation. Nor, it says, does the impugned provincial legislation frustrate the purpose of the
federal legislation.
896
Manitoba refers to two Acts, The Half-Breed Land Grant Amendment Act, 1877 and The Half-Breed Land Grant
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Act, 1878, which it asserts make the point both with respect to them and the other impugned Acts. Manitoba says the pith and
substance of both Acts were in respect of contract.
897
The former provided that if an individual chose to contract to sell section 31 land, the contract had to be for valid
consideration and in the form of a deed. If it was, it was a legal contract and the statutory right of the vendor to void the contract at will was no longer available. The latter provided that if a person between the ages of 18 and 21 were to contract, additional safeguards over and above those that existed at common law would need to be observed.
898
Manitoba asserts its legislation did nothing more than attempt to bring greater certainty in the area of contract law
than that which existed at common law relative to what was occurring on the ground, namely, the sale by eligible recipients
of their interests in the section 31 land grant prior to patent. If Manitoba did not legislate in the area, the common law would
have applied as a result of which contracts could have been made by minors without parental consent, without judicial oversight including as to the issue of valid consideration and with the ongoing ability to void the contracts prior to and for some
period following attainment of majority.
899
Manitoba argues that, simply put, Canada by its Order in Council determined that patents would issue in the name of
the allottee whereas Manitoba's legislation simply provided that in order for a vendor to transfer or assign his/her entitlement
to section 31 lands, certain formalities of contract law would have to be observed. There was no functional inconsistency.
900
As well, Manitoba submits that its legislation did not frustrate the purpose of the federal law. Rather, Manitoba says
its legislation and Canada's were complementary to each other.
901
Manitoba asserts that the purpose of the Order in Council was simply to confirm a policy decision of Canada that it
would not recognize assignments but would grant the patent only in the name of the person who was the actual allottee of the
land by virtue of the random lottery conducted by the lieutenant governor in Manitoba. It says the Order in Council did nothing more than state and give notice of that fact. The Order in Council did not prohibit the granting of assignments, transfers
and the like.
902
Manitoba says that one can infer that Canada enacted the Order in Council for a highly practical purpose. Its outright
refusal to accept assignments obviated the need for Canada to have to set up the administrative machinery necessary to examine assignments, transfers or other documentation in order to determine their legal validity and the chain of title before granting a patent.
903
Furthermore, Manitoba argues that while not conclusive of the fact, it certainly bears weight to note that Canada
itself has never asserted, then or today, that Manitoba's impugned legislation was inconsistent with or frustrated Canada's
purpose in enacting Order in Council March 23, 1876. Had Canada felt otherwise, it could have disallowed the legislation, a
common practice at that time, or proceeded to court for a judicial determination. It did neither then nor since.
904
In my view, the Order in Council did not prohibit sales or assignments of one's interest in land before patent or deal
with contract law in any manner, nor can one read or reasonably construe the Order in Council as prohibiting or constituting a
legal prohibition against sale or assignment of section 31 interests pre-patent.
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905
Indeed, just as Parliament did not grant retailers a positive entitlement to display tobacco products in Rothmans,
Benson & Hedges Inc., Canada did not by the Order in Council declare assignments illegal, nor prohibit, nor void them.
906
In my view, there is no functional inconsistency between the federal enactment and the provincial legislation. Simultaneous compliance is easily possible. Nor does Manitoba's legislation frustrate the federal objective in enacting the Order in
Council.
907
Having so decided, I need not deal with the two preliminary points raised by Manitoba in its submission.
The Federal Power of Disallowance of Legislation
908
The plaintiffs argue that Canada's fiduciary duty to the Métis children imposed a duty upon it to disallow any provincial legislation which enabled sales of section 31 lands prior to grant or which singled out Métis children to facilitate their
ability to sell their land before they reached the age of majority.
909
The plaintiffs assert that in carrying out its fiduciary obligation when it finally got around to distributing the land,
Canada could and should have turned to its power of disallowance and disallowed provincial legislation that was apparently
unconstitutional or that impeded or frustrated Canada's observance of its fiduciary duty to the Métis children.
910
It argues that the Lieutenant Governor, by the combined operation of sections 55, 56, 57 and 90 of the Constitution
Act, 1867, had the power to reserve provincial legislation for one year and the Governor General had the power to disallow
provincial legislation for a period of one year after it received the assent of the Lieutenant Governor.
911
The plaintiffs refer to a memorandum from Macdonald, approved by Cabinet on June 9, 1868, in which he indicated,
in the context of disallowance, that the Minister of Justice should report any provincial Acts that the Minister considers:
(1) as being altogether illegal or unconstitutional;
(2) as illegal or unconstitutional in part;
(3) in case of concurrent jurisdiction, as clashing with the Legislation of the General Parliament; or
(4) as affecting the interests of the Dominion generally.
912
The documentary evidence in this case establishes that the power of reservation and/or disallowance was frequently
resorted to during the period in question. The document entitled "Correspondence, Reports of the Ministers of Justice and
Orders in Council upon the subject of Dominion and Provincial Legislation, 1867-1895"[FN224] provides numerous examples of this having occurred with respect to Manitoba statutes dealing with the construction of railways, telegraph lines,
bridges over navigable waters and the like.
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913
In fact, Canada disallowed the 1875 amendments to The Half-breed Land Grant Protection Act, 1873. But, say the
plaintiffs, all of the subsequent provincial measures allowing sale of interests in section 31 lands before grant, allowing infant
Métis to sell without a court order, and regularizing irregular sales, were allowed to stand by Canada. This, the plaintiffs assert, was in breach of a fiduciary duty owed by Canada to the Métis children in respect of the section 31 lands.
914
Canada disputes this allegation. It argues that there can be no actionable breach of duty, if indeed there were breach
of duty, by reason of a refusal to exercise the power of reservation or disallowance. Canada says that the power of disallowance is purely discretionary, one reserved to the Governor General in Council. Its exercise is not obligatory. There can be no
positive duty to invoke the power and, moreover, the discretion is not subject to review by the courts.
915
Canada refers to Reference re Power of Disallowance & Power of Reservation (Canada), [1938] S.C.R. 71 (S.C.C.),
and Society of Ontario Hydro Professional & Administrative Employees v. Ontario Hydro, [1993] 3 S.C.R. 327 (S.C.C.),
both decisions of the Supreme Court of Canada in support of its position.
916
I agree.
917
In Reference re Power of Disallowance & Power of Reservation (Canada), supra, Cannon J. wrote, at p. 80:
Question 2. The power of disallowance by the Governor General in Council is subject to no limitation or restriction
whatsoever, save that it has to be exercised within the period of one year after receipt of the Act by the Governor General.
And in providing his reasons for reaching his conclusions, including to Question 2 as quoted above, he wrote, at p. 82:
The Judicial Committee, in Wilson v. Esquimalt and Nanaimo Ry. Co. ... said, as regards the federal power of disallowance: "It is indisputable that in point of law the authority is unrestricted." How and when the power is to be exercised is a
matter to be determined by the Governor General in Council.
918
Crocket J., in his judgment, wrote, at pp. 86 and 87:
With regard to question 2 as to whether the exercise of the power of disallowance of provincial legislation by the Governor in Council is subject to any limitations or restrictions, I am of opinion that, in point of law the authority is unrestricted as was distinctly held by the Judicial Committee of the Privy Council, speaking by my Lord the Chief Justice of Canada, in Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202; and that its exercise by the Governor in
Council is subject to no limitation except that which is found in the enactment itself as above reproduced as to the time
within which the authority must be exercised and the manner in which the disallowance must be signified, if the latter
can properly be said to be a limitation upon the exercise of the power. The enactment plainly applies to any and every
bill which becomes an Act of any Provincial Legislature by reason of the Lieutenant-Governor's assent in behalf of the
Sovereign, and the words "and if the Governor General in Council within one year after receipt thereof (i.e. after receipt
of an authentic copy of the Act by the Governor General to whom the Lieutenant-Governor is required to send such
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copy) thinks fit to disallow the Act" distinctly denote an entirely unfettered discretion on the part of the Governor General
in Council so far as the exercise of the power of disallowing the Act is concerned, whether the Act be one which may be
found to be intra or ultra vires of the Legislature, provided such power is exercised within a year after the receipt of the
authentic copy by the Governor General. ... We are, of course, concerned here only with legal limitations and restrictions
— not with any question of the expediency or inexpediency of the exercise of the power of disallowance in any particular case. That is the responsibility of the Governor in Council entirely.
919
And in his judgment, Kerwin J., at pp. 95 and 96, wrote:
The circumstances under which the powers referred to may be exercised are matters upon which this Court is not constitutionally empowered to express an opinion since the power of disallowance is granted by the Act to the Governor General in Council and the power of reservation is to be exercised by the Lieutenant-Governor "according to his Discretion,
but subject to the Provisions of this Act and to the Governor General's Instructions."
920
In Ontario Hydro, supra, La Forest J., at p. 371, wrote:
... The powers of disallowance and reservation accorded the federal government by ss. 55-57 and 90 of the Constitution
Act, 1867 give it unrestricted authority to veto any provincial legislation; see Wilson v. Esquimalt and Nanaimo Railway Co. [[1922] 1 A.C. 202], at p. 210; see also Reference re Disallowance and Reservation, [1938] S.C.R. 71. The exercise of this authority is wholly a matter of discretion for the federal government, and in the Reference case just noted, it
was stated that the courts are not constitutionally empowered to express an opinion about its exercise (see p. 95); for a
similar statement regarding the declaratory power, see The Queen v. Thumlert [ (1959), 20 D.L.R. (2d) 335]....
921
In my view, there is no merit to the plaintiffs' argument on this issue. Firstly, as I have already found, there was no
fiduciary duty owed by Canada to the Métis including the Métis children with respect to the section 31 land grant.
922
In any event, the law is clear. Whether or not to exercise the power of reservation or disallowance is wholly in the
unfettered discretion of the Governor General in Council and is not subject to review or comment by the court.
923
As a matter of law, there could be no actionable duty owed by the Governor General in the exercise of the discretion
whether to invoke or not invoke the power of disallowance. It surely, therefore, cannot be a basis for action by the plaintiffs
here.
Implementation of the Land Grant Under Section 31 of the Act
924
Canada argues that the plaintiffs' complaints with respect to the section 31 grant can be categorized essentially under
four separate headings:
(1) complaints about selection of land;
(2) complaints about allotment of land and the provision of scrip in lieu;
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(3) complaints that eligible section 31 claimants were able to sell their land before patent or before attaining the age of
majority;
(4) delay.
I agree that that is a useful categorization and shortly, will consider the complaints accordingly.
925
Before doing so, I will consider complaints of a broader and more fundamental nature.
926
The plaintiffs' fundamental complaint with respect to the section 31 grant is that Canada did not administer it in such
a way as to create and/or preserve a Métis land base.
927
Canada asserts however that there was no intention or obligation under the Act to create and/or preserve a Métis land
base. Rather, Canada says the Act was an essential piece of legislation in building the nation of Canada. It says Canada's intention in acquiring Rupert's Land and the North-western Territory was to enable Canada to create a country from sea to sea
and that the Act became the instrument through which the inhabitants of Rupert's Land, other than Indians, would and did
acquire full citizenship within the Canadian Confederation.
928
In my view, Canada's argument on this point is correct and the plaintiffs' position fundamentally flawed. I conclude
this for a variety of reasons:
• There is much more in the Act than sections 31 and 32. Almost all of the provisions of the Act deal with or are designed
to deal with different aspects of creating a new province and building the new nation of Canada. As regards land, those
provisions are found in sections 30 to 33 of the Act.
• As I have already decided, the Métis did not enjoy aboriginal title to the land in question. Historically, they had never
owned property in a communal manner. They had always owned land individually and bought from or sold to Métis and
non-Métis as they desired. To suggest that they had any desire to do otherwise is not supported by the evidence and intuitively makes no sense given their history and culture.
• While it is true that they lived in communities, called parishes, there was no communal ownership of land which would
give rise to any suggestion that they had prior to the Act a Métis land base or that they desired to have one thereafter.
Where they lived was determined on the basis of religion, language and culture, but in that, they were no different than
many other members of ethnic or cultural communities then or even now. However, they still owned their land on an individual basis and were free to maintain ownership and stay, to sell ownership and move, to purchase additional land or
to sell their land and move to other purchased land.
• The Métis were not Indians. They considered themselves superior to Indians and had enjoyed prior to the Act the rights
of full citizens within the Settlement, including in its governance, commerce and the holding of senior positions. The
Convention of 40 made clear that it expected to enjoy the rights of full citizens following passage of the Act, and the list
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of rights taken by the Red River negotiators clearly echoed that request and made clear reference to the Indians as less
than full citizens. The legislation passed by the Legislative Assembly did likewise. Canada, in administering the section
31 grant, was dealing with persons who enjoyed all of the rights of full citizens of Canada which included the right to
own and dispose of land.
• On the evidence, there was no unanimity amongst the Métis as to the selection of the land under section 31. While both
the English half-breeds and the French Métis wanted the right to select their land, they were not agreed as to the rationale
for location or the location itself.
• It is clear from the discussions in Red River and between the Red River delegates and Macdonald and Cartier leading to
passage of the Act that the question of a land grant under section 31 had never arisen or been contemplated until Macdonald and Cartier made clear to Ritchot, Black and Scott that while Rupert's Land could enter Confederation as a province and not a territory, Canada would own the land. Nowhere in those discussions or in the Parliamentary Debates is
there any evidence of a promise to create or preserve a Métis land base in Manitoba nor is there any provision in the Act
to do so. Indeed, it is clear from Northcote's diary references of discussions with Cartier and Macdonald that neither of
them intended to have the land located in a block and they made clear, both then and subsequently, in the debates in Parliament that the grant under section 31 was subject to Canada's obligation to the HBC and the Indians, and as well, to its
intent to build a national railway.
929
In my view, the purpose of section 31 of the Act was not to create a Métis land base within Manitoba but to provide
a benefit to the Métis by way of grant to the children, the result being that each Métis child in Manitoba would have the opportunity to own and settle upon a piece of land within the new province if he or she so chose.
930
Following passage of the Act and during administration of the section 31 grant, it was made clear to Canada by the
Manitoba Legislature,[FN225] the majority of whose members were either Métis or sympathizers of the Métis, that the land
to be given under section 31 was to be given absolutely to the recipients and could be held or disposed of as they wished.
931
This view was expressed throughout the period during which implementation occurred. The petitions from various
parishes in February and March 1875[FN226] evidenced this in referring to the Half-Breed's rights "either to cultivate or dispose of" the land. So too did Taché recognize this.[FN227]
932
And plaintiffs' counsel in the course of the case before me acknowledged that had Canada in its administration of the
section 31 grant absolutely prevented a recipient from selling his or her interest in the land prior to patent, the best the Métis
could have hoped for was simply an opportunity for the creation of a land base. How then can there be any merit to the submission that Canada breached an obligation to create and/or preserve a Métis land base when the Act did not require it, when
the evidence establishes that the parties on the ground at the time did not seek or expect it, and when plaintiffs' counsel
acknowledges that the best the Métis could have hoped for was not the creation of a land base but the creation of an opportunity for a land base.
933
Section 31 clearly gives Canada a very broad discretion in administering the land grant provided thereunder. While
the section provides for the grant and specifies who are to be the recipients, the manner in which the 1,400,000 acres was to
be divided, and the process or procedures for so doing had not at the time of passage of the Act been determined. In the result,
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the section gave the very broad discretion as appears from its language.
934
Another point of argument advanced by the plaintiffs is that Archibald and all others but the Métis were guided by a
desire to ensure that the Métis grant did not form a clog on the development of the province, that is, inasmuch as many of the
grantees were infants, they would not receive their grant (i.e., the patent or title) until they obtained 18 years of age. Much of
the land would not be able to be developed or to be put in play for development or acquisition by others.
935
There was debate as to whether or not conditions of settlement should be imposed. Cartier, in Parliament on April
13, 1871, explained that there would be no conditions of settlement imposed and that rather than so doing, the government
would be the guardians of the land until the children reached majority. The plaintiffs assert that this did not occur. But in fact
the evidence discloses that in virtually every case the patents granted under section 31 were granted in the name of the child
entitled pursuant to the random lottery and subsequent allotment.
936
There are several references in the Parliamentary Debates leading to passage of the Act where Macdonald likened the
section 31 grants to the grants which had been made to the United Empire Loyalists. But many of those grants had not been
taken up or had been lost by escheat to the Crown by reason of the conditions attached to the grants. This is clear from the
report of Stephen E. Patterson Land Grants for Loyalists.[FN228]
937
It appears on the evidence that what may have motivated Cartier and the government to not impose settlement conditions or duties upon the land was the fact that a great number of those entitled to the land were infants who would not be able
to fulfill whatever conditions, duties or obligations might be imposed. That could result either in their not applying for a grant
or in their forfeiting the grant by reason of their failure to be able to comply with conditions.
938
The evidence does establish that Ritchot and Taché wanted conditions imposed which would entail the land and restrict for some period the ability of Métis children to dispose of it or their interest in it.
939
But it is clear from the evidence that the Manitoba Legislature did not share that view. Nor did the people on the
ground. Addresses from the Legislature and petitions from certain of the parishes to which I have already referred establish
that. So too does the letter from Morris to Macdonald dated February 14, 1873,[FN229] wherein Morris wrote:
I have strange people to deal with and the land question is multi-form. Its last phase was a movement originated and supported by the Bishop and Ritchot demanding that the lands of the Half-breed heads of families should be entailed. I think
it is dead already. I had a deputation from St. Norbert yesterday to oppose it. ....
940
The language of section 31 does not provide for any encumbrance or conditions to be attached to the land once in the
hands of the recipient. Rather, it leaves such consideration to the discretion of the Governor General in Council.
941
In my view, the exercise of discretion not to impose conditions of settlement was well founded but, more importantly, it is beyond contention that Parliament and the Governor General in Council had the discretion to decide what to do in
respect of that issue and that decision cannot be challenged.
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942
Upon passage of the Act all that may have preceded in the way of discussion or debate was subsumed into the Act,
and the broad discretion afforded Canada under the Act must be accorded significant deference.
943
In my view, so long as Canada, in implementing the section 31 grant complied with the language of the Act by giving the land for division amongst the children of the half-breed heads of families and did not act in bad faith in so doing, its
conduct cannot be successfully challenged. Mistakes, even negligence, on the part of those responsible for implementation of
the grant are not sufficient to successfully attack Canada's exercise of discretion in its implementation of the grant.
944
A complaint that the administration or implementation of the grant or its outcome is unsatisfactory is not a justiciable complaint so long as what was done or not done was pursuant to the language of the Act and the bona fide exercise of
discretion within the terms of the Act.
945
In Thorne's Hardware Ltd. v. R., [1983] 1 S.C.R. 106 (S.C.C.), the Supreme Court of Canada held:
The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review:
Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to the right
of the courts to act in the event that statutorily prescribed conditions have not been met and where there is therefore fatal
jurisdictional defect. Law and jurisdiction are within the ambit of judicial control and the courts are entitled to see that
statutory procedures have been properly complied with: R. v. National Fish Co., [1931] Ex. C.R. 75; Minister of Health
v. The King (on the Prosecution of Yaffe), [1931] A.C. 494 at p. 533. Decisions made by the Governor in Council in
matters of ... general policy are final and not reviewable in legal proceedings. Although, as I have indicated, the possibility of striking down an order in council on jurisdictional or other compelling grounds remains open, it would take an
egregious case to warrant such action. ...
946
Here, the plaintiffs' fundamental complaint is that section 31 was to ensure a perpetual Métis land base, but in my
view, that is not a possible interpretation from the section. There are no limits set in the language of section 31 as to what a
recipient might do with his/her land. There is no specification whence the land is to be sourced and no time limit by which
the grants must be given. The language of section 31 suggests land grants to children of half-breed heads of families to do
with as they see fit once received and the section as well clearly gives the Governor General in Council the authority and
mandate to decide upon the method by which each recipient is to receive his/her share of the grant.
947
As well, section 31 does not restrict but rather contemplates changes in policy respecting administration of the grant
as it makes reference to regulations made from time to time.
948
The plaintiffs complain about Archibald's letter of December 27, 1870,[FN230] written in respect of section 31 of
the Act.
949
Firstly, they say it was not up to him to "second-guess" the agreement that had been reached or the measures intended by the Act. I have already determined that there was no agreement. As for the assertion that Archibald was secondguessing or that it was not up to him to do so, the facts are that Archibald was instructed by the Under Secretary of State for
the Provinces to report, for the information of the Governor General in Council, his opinion as to the regulations which
should be made by the Governor General in Council under section 31 of the Act. His letter was written in compliance with
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those instructions and in it he provided not just his opinion but context for it. What the Federal Cabinet did in respect of his
report and opinion was up to it. There is no merit to this criticism by the plaintiffs.
950
As well, the plaintiffs have taken exception to Archibald's description of the grant as a "boon" and assert that that is
evidence Archibald did not understand the nature of aboriginal title of Métis people.
951
The Shorter Oxford English Dictionary, 2nd ed., 1936, defines "boon" as a favour, a gift (this was its meaning in the
17th century), and as a blessing, an advantage, a thing to be thankful for (as it was meant in 1767).
952
vour.
The Concise Oxford Dictionary, 8th ed., 1990, defines "boon" as an advantage, a blessing and, as well, a gift, a fa-
953
The Oxford Thesaurus published in 1992, describes as synonyms for "boon" the following: gift, favour, award, reward, gratuity, present, blessing, benefit, advantage.
954
In my view, the law is clear that aboriginal title is something that aboriginals enjoy independent of the Crown. It
logically follows then that it is something the Crown can recognize, but it is not something the Crown can give.
955
I have already concluded that the Métis people in Manitoba did not enjoy aboriginal title to the land in question.
956
The land grant was a gift given for the reasons previously described in this judgment. Whether or not "boon" is an
accurate descriptor for the grant is, I suppose, arguable given that Canada understood that its dealings with the representatives
of Red River and the negotiations leading to the Act were being overseen by the Imperial Government. I cannot say whether
Archibald understood the concept of aboriginal title, but in my view, Archibald certainly was correct in not concluding that
the Métis enjoyed aboriginal title to the subject land.
957
As well, the plaintiffs complain that Archibald erred when he concluded that all of the half-breeds in the province
were entitled to share in the section 31 grant. As there were 10,000 half-breeds and the grant was 1,400,000 acres, the recommendation was that each half-breed receive a tract of 140 acres.
958
In this, the plaintiffs are correct. Section 31, of course, mandated that the grant be divided among the children of the
half-breed heads of families and be granted to the said children respectively.
959
To the extent this recommendation of Archibald was adopted and included in Order in Council April 25, 1871, it
was erroneous and that portion of the Order in Council was off-side section 31 of the Act. Canada has conceded that fact.
This, of course, was remedied by Order in Council April 3, 1873.[FN231] In the result, there was no substantive effect to the
error, but it did cause delay in the allocation of the lands to be granted under section 31.
960
Let me turn then to address the four headings of complaint to which I earlier referred.
Selection of Land
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961
The plaintiffs advance various complaints about selection of the land for the 1,400,000-acre grant. They say that they
did not receive first choice as regards that land. Canada asserts that there was no such obligation upon it under the Act.
962
In my view, Canada's position is correct. There never was a commitment to provide first choice nor is such a commitment reflected in the Act.
963
Such a commitment to the Métis in respect of this grant would have been impossible given Canada's responsibility to
others. Both Macdonald and Cartier made this clear to the Red River delegates, as Ritchot's diary entry for April 27,
1870,[FN232] records:
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. ...
964
One of the works Canada intended was construction of a railway which would unite Canada from coast to coast,
something that would have been in the interests of all Manitobans and the country as a whole.
965
Similar comments were recorded by Northcote in his diary entries of conversations he had with both Cartier and
Macdonald in early May 1870.
966
As well, this fact was made clear in the Parliamentary Debates leading to passage of the Act.
967
In addition, Canada had an obligation to those persons entitled to land under section 32, and in particular subsections
32(1) and (2), of the Act. Canada's need to balance these various obligations and responsibilities made granting the Métis a
first choice to land impossible and provides ample reasons for there being no right of choice given to the Métis under the Act.
968
Having said that, the Métis were given significant input into the choice of the land from which the grant was to be
made. This occurred largely by reason of the invitation of Archibald.
969
The plaintiffs assert that Order in Council April 25, 1871, was the most important document respecting implementation of the section 31 grant. That Order in Council first provided for the system of survey of the land in Manitoba. It also provided that:
The Lieutenant Governor of Manitoba shall designate the townships or parts of townships in which the allotments to the
half-breeds shall be made.
970
By the spring of 1871, nothing apparent had been done concerning selection of the section 31 land but in the meantime, immigrant settlers were coming into the province and looking to settle. This caused unrest amongst the Métis as they
saw others coming in and selecting land when they in fact had not been given the opportunity to do so, an opportunity which
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they felt would be a first choice certainly as compared to incoming settlers.
971
This unrest amongst the Métis led to the letter of May 24, 1871,[FN233] from six members of the Legislative Assembly of Manitoba concerning the land grant and hay rights. Both led to Archibald writing his letter of June 9,
1871,[FN234] in response.
972
In this letter, Archibald referred 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.
973
Shortly thereafter, on June 17, 1871, Archibald wrote Howe concerning his June 9, 1871 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, he 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.
974
The plaintiffs assert (as did Taché[FN235] and the Manitoba Legislative Assembly[FN236] at the time) that by his
letter of June 9, 1871, Archibald thereby acted under the powers given him by Order in Council April 25, 1871, and that his
letter was a proclamation by which he designated or committed to the designation of the townships or parts of townships selected or to be selected by the Métis, from which the allotments of the section 31 grant should be made.
975
In my view, the positions expressed then, and the argument advanced by the plaintiffs now, are wrong.
976
Archibald's letter, as he explained to Howe and Macdonald, was written in the face of agitation and unrest in the
province. It was written to pacify the residents, particularly the Métis.
977
While there is no question that Order in Council April 25, 1871, empowered Archibald to designate such land for
such purpose, it is clear, in my view, from the language of his letter that he was simply expressing his present intention as to
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the performance of a future act. He was not making the designation.
978
He wrote, "Should I be called upon to act under this rule ..." and "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...."
979
The evidence is clear that Archibald considered it necessary to write his June 9, 1871, letter so as to pacify the concerns of the old residents, including the Métis, because of the unrest within the community caused by the arrival of settlers
and their taking up of land while the grantees were left to wait. But in my view, there is no question that Archibald knew he
did not have authority to do so, or at least was not confident of that.
980
I base this conclusion on the language of his June 9, 1871, letter from which I have quoted, and his letter to Howe of
June 17, 1871,[FN237] wherein he wrote:
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.
981
While the Order in Council empowered the Lieutenant Governor to designate the land, he had not been requested or
instructed by the Governor General or the Governor General in Council to act under the Order in Council and commence the
designation so provided. Yet, that is where the power reposed under the Act.
982
In my view, Archibald's letter of June 9, 1871, was not the designation contemplated under the Order in Council. He
understood that as evidence his correspondence at the time and the correspondence between Aikins and him in July and August 1872[FN238] demonstrate the manner in which such selection was to be made.
983
The annual report of the Immigration Agent for the Northwest, Mr. J.A.N. Provencher, dated January 1872[FN239]
provides insight from one present in the Province at the time as to the understanding of Métis who participated in the selection of lands prior to and following Archibald's June 9, 1871, letter.
984
He wrote, at page 76 of the Exhibit:
The half-breeds, a little alarmed at the proportions which immigration assumed last spring, assembled in public meetings
in their respective parishes and adopted several resolutions, demanding that certain localities which they specified should
be granted to them as their share of that reserve.
These claims are in terms which do not admit of their extent being exactly determined, unless with a thorough
knowledge of the several localities, but it may be stated, approximately, that they comprise four miles on each side of
Red River, or settlements which lie along that river from Pembina to the northern boundary of the province, two miles on
each side of the river sale, and of Rivière-aux-Îlets-de-Bois, eight or ten miles on each side of the Assiniboine River
where settlements which lie along that river as far as Portage la Prairie, 10 miles by 20 to the east of the existing settlements at Pointe-des-Chênes, 20 miles by five to the east of Lake Manitoba, and lastly the tract comprised between the
Assiniboine River, opposite the parishes of Baie-St-Paul and St-François-Xavier, the east of Pembina Mountain, the
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frontier of the province, and Rivière-aux-Îlets-de-Bois.
These limits are purely temporary, and the parties interested do not themselves wish to maintain them except until the
surveys are completed.
985
Order in Council May 26, 1871, which allowed immigrants to occupy land before survey, certainly was a source of
divisiveness and unrest within the province, but a closer analysis of the ultimate outcome makes clear in my view that its effect upon the section 31 land grant was minimal. That Order in Council created a situation that was temporary only. As well,
when one reviews the Manitoba Métis Study Maps, there was not in my view any significant loss to Métis interests in the
land grant resulting from the fact that their selections were not wholly accepted. Certainly not of a sufficient quantity or quality as would result at this late date in any judicial remedy.
986
The plaintiffs complain that Canada subjugated the interests of the Métis to the interests of Canada and others in
respect of the selection of land at Poplar Point and High Bluff. While the evidence supports that complaint, it also makes
clear that Archibald simply exercised his discretion, a discretion which, in my view, he had, to balance the demands of the
residents with other considerations which, in his opinion, were materially beneficial to the interests of Canada and the province on a go-forward basis. As well, there was no evidence offered at trial of complaints made thereafter concerning the ultimate reservation of this land which would lead one to infer that the residents on the ground accepted it.
987
Lastly, the plaintiffs assert that Archibald had promised certain lands requested by the parishes of St. Boniface/St.
Vital, St. Norbert and St. François-Xavier/Baie-Saint-Paul to those parishes and that his successor Morris had failed to abide
by that promise. There was an exchange of correspondence between Taché and Dennis concerning this. But as appears from
Dennis's response,[FN240] the subject lands fell within the Settlement Belt and the lands to be allotted under the section 31
grant were not to include Settlement Belt lands.
988
The Settlement Belt lands were included in the river lot survey. But, the section 31 lands were to come from lands
covered by the general survey. Canada asserts that Order in Council April 25, 1871, made that clear in stating that the Lieutenant Governor would designate the lands from townships or parts of townships, and the sample draw ticket shown in the
Order in Council made reference to a legal description related to the general survey as distinguished from the river lot survey.
Moreover, the use of river lots would have been inconsistent with the 240-acre parcels that were ultimately selected under the
children's grant.
989
Part of the evidence introduced at trial consisted of a series of maps provided by Canada under the direction of Dr.
Ens. These are comprised in a booklet.[FN241] Certain maps contained within the booklet were enlarged and filed as well as
separate individual exhibits.
990
There were four different depictions of the townships from which the land grant was to be made. Those four are set
forth on general maps 1 to 4, respectively.[FN242] General map 1 shows the lands selected by the Métis themselves (sometimes referred to as "spontaneous demands") prior to and following Archibald's letter of June 9, 1871. General map 2 shows
those townships selected by Archibald and Morris prior to September 1873. General map 3 shows the townships as adjusted
by the withdrawal of the outer two miles in September 1873. General map 4 shows the townships from which the actual allotments came.
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991
Based upon those maps, the plaintiffs challenged Dr. Ens' assertion that Archibald was fairly successful in accommodating the initial selections made by the Métis parishes and that the actual lands reserved for grant could not have been a
perfect fit because most of the Métis parishes requested far more land than their populations warranted or for which the Act
provided.
992
The plaintiffs argue that this was not so and that in the preponderance of cases, the Métis parishes initially selected a
reasonable amount of land relative to their number of children, the only exception where a greatly excessive amount was
sought being St. François-Xavier and Baie-Saint-Paul.
993
As well, they argue that in drawing general map 1 (i.e., the reflection of the Métis claims or spontaneous demands
based upon metes and bounds), Dr. Ens, for every aspect of the description requiring judgment, appears to have erred on the
side of depicting a larger area rather than a lesser area which was capable of conclusion if Dr. Ens had exercised his judgment
differently.
994
The plaintiffs also assert that I should reject Dr. Ens' opinion that in almost all cases, Archibald reserved lands that
were within the areas requested by the Métis. The plaintiffs say that a review of the comparative maps reveals in 10 out of 12
cases, Archibald reserved lands for a parish outside the area initially selected by that parish. As well, they argue that the
comparative maps show that in 14 out of 18 cases, allotments were located outside the areas finally reserved by Morris.
995
The plaintiffs assert that from the comparative maps and in particular general map 4, it is evident the extent to which
allotments were located outside of the reserved boundaries, as is the wide separation of the areas selected for such allotments.
This, the plaintiffs argue, when coupled with the random lottery process, would have exacerbated the breakup of landholdings within families (particularly in the cases of St. Boniface/St. Vital and St. François-Xavier/Baie-Saint-Paul), and promoted the sale rather than settlement of such lands.
996
The plaintiffs assert, therefore, that the maps highlight the extent to which the Crown failed to discharge its obligations to the Métis children.
997
The maps themselves are very helpful in permitting one to understand the history of the actual land selection including the result or effect of the random lottery scheme.
998
While not commenting upon the exercise of judgment by Dr. Ens, but based upon my consideration of the evidence
on that point, I reject as inaccurate Dr. Ens' assertion that most parishes requested far more land than the populations warranted.
999
In my view, there is merit in these assertions of the plaintiffs, but relative to the overall grant the differences are not
significant.
1000
The maps track what are described as spontaneous demands, to the selection or reservation of land from which the
grant was to be made, and ultimately to allotments. Clearly, there was not a perfect match, but the evidence overall does
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demonstrate a willingness upon Canada's part of trying to accommodate the wishes of the parishes. Certainly, there is no
claim being advanced nor in my view is there evidence to support a claim of bad faith on the part of Canada in the ultimate
designation of the lands in question. Furthermore, there is little, if any, evidence of complaint from the people at the time
relative to the selection of the lands in question.
The Allotment of the Land and the Providing of Scrip in Lieu
1001
Aside from delay, the plaintiffs' principal complaints concerning allotment of the land are the use of a random lottery and the provision of scrip in lieu of land to 993 of the children by reason of the land grant having been exhausted.
1002
The plaintiffs assert that the use of a random lottery, as provided for in Order in Council April 25, 1871, was contrary to an agreement reached between the provincial negotiators and the federal government which they assert had provided
for selection of land in family blocks.
1003
As I have found, there was no such agreement. Furthermore, there was not at the time of the negotiations, nor subsequently, unanimity between the French Métis and the English half-breeds concerning selection of the land to be granted. It
is true that the French Métis wanted the land grant to be contiguous to the areas in which they were residing and, for the most
part, without undue concern for the value of the land. The English half-breeds on the other hand were of a different view.
While they, too, wanted to be able to select their land, they were more interested in the value of the land to be selected than
its location. As well, the negotiators were not representing only the French Métis or only the English half-breeds, but both
and as well the other residents of the area which was about to become Manitoba. Canada had to act in the interests of all and
as well consistent with its goal of nation building.
1004
The plaintiffs say that the use of a random lottery resulted in a family member having his or her land close to the
rest of their family by chance only. The plaintiffs argue that the maps graphically illustrate the effect of random distribution
on the location of the lands granted to the individual children under section 31 relative to the location of the lands of their
parents.
1005
But, while the lottery was indeed random, it was not random throughout the entire province. Rather, it was random
on a parish-by-parish basis. That is, allotments were done on a parish-by-parish basis and the land from which the allotments
were drawn was land that had been designated for a particular parish. Accordingly, a child from the parish of St. Boniface
was in the lottery along with other children from that parish for the allotment of lands designated for that parish. Such child
was not in the lottery along with a child from the parish of St. François-Xavier nor was the land in respect of which the allotment was being made land designated for the parish of St. François-Xavier if the child was a resident of St. Boniface.
1006
In my view, it is difficult to conceive how the grant could have been administered other than by a random lottery
without creating unfairness and significant divisiveness within each parish. While the plaintiffs assert that the Métis wished
to have the children's grants contiguous to the land of the parents and to each other, it is difficult to understand how practically that could occur. For one thing, families in those days were of large size and each child was ultimately entitled to 240
acres. Would it have been practically feasible to have the grants made to members of a family contiguous to the land of the
parents and to each other without overriding the grants to which a neighbouring family might be entitled? In addition, a random lottery gave every child in the parish an equal chance to receive the best parcel of land available within that designated
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for the parish.
1007
The plaintiffs refer to Cartier's letter of May 23, 1870, where, in the postscript which apparently was added on after
May 27, 1870, he wrote:
I have, moreover, the honour 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 31 st 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.
1008
The plaintiffs argue that the French Métis took this to be an assurance that they would be able to pick their land as
they wished. There is, of course, another interpretation which might be made regarding that postscript, namely, that the land
would be selected and distributed in such a way as to satisfy the people that the process used in implementing the grant was
one fair to all recipients. A random lottery or selection would accomplish this.
1009
As well, again, there is little, if any, evidence of complaints about random selection from those present at the time.
1010
Canada asserts that family blocks were not the intent and that had they been intended or required, the Act would
have so provided.
1011
Moreover, the phrase "family block" was never used or recorded by any of the persons involved in the negotiations
leading to the Act, nor in the debates relative to its passage, nor in the language of the Act itself. And, as already expressed in
these reasons, there is evidence which would make clear that a single block or family blocks were contrary to the intentions
of both Macdonald and Cartier. Ultimately, section 31 provided that the selection of such lots or tracts would be subject to
the discretion of the Governor General in Council by regulation and, as well, that the grant would be made in such mode and
on such conditions as to settlement or otherwise as the Governor General in Council may from time to time determine.
1012
The Act clearly did not provide for family blocks, nor in my view did it require same.
1013
As regards the plaintiffs' argument concerning the issue of supplementary scrip in lieu of land, the evidence makes
clear how that occurred.
1014
Briefly, Archibald, in his letter of December 27, 1870, relied upon the census which he had commissioned and
which determined that there were approximately 10,000 Métis resident in Manitoba, approximately 7,000 of whom were
children. He erroneously recommended that each Métis person should be entitled to participate in the grant whereas section
31 clearly mandated that the grant should go only to the children of the Métis. Canada accepted his recommendation and determined that with 1,400,000 acres available and to be divided equally amongst 10,000 Métis, the size of the grant should be
140 acres.
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1015
Subsequently, Canada acknowledged that this was wrong and corrected the error. Accordingly, the adult Métis
were excluded, reducing to 7,000 the number of eligible recipients, and the grant size was increased to 190 acres.
1016
Shortly before allotment, a further enumeration was done by the Machar/Ryan Commission. It returned with 4,891
children enumerated as entitled to share in the grant. Codd was directed to consider and report on the appropriate number for
purposes of determining the size of the individual grant. He did so.
1017
The plaintiffs argue that his conclusion flies in the face of the 1870 census which indicated there were approximately 7,000 children and, as well, Dennis's concern (concurred in by Codd only a few weeks earlier) that there might be too
many children for a 190-acre grant.
1018
While hindsight clearly demonstrates that Codd was in error (as was Order in Council September 7, 1876, which
relied upon his letter), it is my view that his letter evidences, but for hindsight, a reasoned consideration of the problem and a
reasoned explanation for the number at which he arrived.
1019
I note that there is no suggestion or evidence of mischief or malice on the part of Codd or Dennis in arriving at that
number.
1020
The difficulty in determining the size of the individual grant was the fact that there was a finite amount of land to
be granted and each recipient was to receive an equal share. Canada was not dealing with only a few individual grants but
with many, whether 7,000 as ought to have been the case or 5,833 as ultimately was determined and upon which the grant
size was based.
1021
But, had Canada determined the number of shares to be 7,000 and ultimately discovered that in fact there were only
6,000, the recipients would have received less than the entire 1,400,000 acres, and there would have been a surplus of land.
This would have necessitated either cancellation of the entire allotment followed by a fresh allotment or a supplementary
allotment. The former would have resulted in additional delay. The latter would have resulted in the surplus land being located some distance from the original land granted to an individual. On the other hand, if they underestimated and the individual
grants exhausted the overall grant, then there would be a shortfall and children would not receive land.
1022
Regrettably, as events would disclose, the number settled upon by Codd was under by close to 1,000 and the 190acre grant based upon 7,000 recipients was far closer to what would have been ultimately accurate though it would have resulted either in the necessity for a further small allocation or in a surplus in the hands of the government given that when you
add the number 5833 and the 993 children who as a result received scrip instead of land, the total is 6,766, 234 short of 7,000.
1023
At some point, however, a decision had to be made so that the grant could go forward. But the target was a moving
target, partly in light of the mobility of the Métis and obviously the number decided upon was substantially in error.
1024
A good example of the problem as it existed on the ground at the time is demonstrated by certain of the genealogical evidence introduced.
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1025
Madeline Sayiese (nee Beads) was an ancestor of Ronald Erickson.[FN243] She was born January 1868 in the
United States and applied for scrip in the Northwest Territories in 1885. At the same time, her father, Thomas Beads, applied
for Manitoba head of family benefits.[FN244] On her application, Madeline Sayiese stated that she moved to Winnipeg when
she was 1 year of age[FN245] and had left around 1875. She was given section 31 supplementary scrip.
1026
Theophile Richard, born about 1855, was an ancestor of Alex Roulette.[FN246] He stated on his application that he
was "absent at Fort McLeod during the summer of 1870" and "when the Halfbreed census was being taken ... my name
through an omission on the part of my family was not given out."[FN247] He received supplementary scrip in 1886.
1027
Angelique Richard (nee Roulette) was an ancestor of Alex Roulette.[FN248] She, too, received supplementary
scrip. She had taken treaty benefits until 1886, but chose to withdraw from treaty in that year and take Manitoba supplementary scrip.[FN249]
1028
These three individuals would be part of the 993 people who received supplementary scrip. While only three of the
993, their circumstances cause one to ask questions about the particular situations pertaining to the 993 people. How many,
for example, were Indians on July 15, 1870 by their parents' choice, but then chose years later to reclassify themselves as
Métis? How many were left off the allotment list through their parents' omissions? How many failed to make application until many years after the 1.4 million acre grant was exhausted? While answers to questions of this kind are not available, questions of this kind were not addressed by the plaintiffs and give rise to evidentiary concerns as to what weight can be attached
to the fact that 993 supplementary scrips were issued. Who else is on the list of 993 and what is his/her story?
1029
In the result, the entire 1,400,000 acres, and indeed somewhat more, was granted to the children but 993 went without. In lieu, those children received scrip to a value of $240.00. The scrip was available for selection of land or for sale as the
recipient chose.
1030
Again, the evidence at the time discloses little, if any, complaint concerning the grant of supplementary scrip in lieu
of land.
1031
In my view, section 33 of the Act, which provides that:
33. The Governor General in Council shall from time to time settle and appoint the mode and form of Grants of Land
from the Crown, and any Order in Council for that purpose when published in the Canada Gazette, shall have the same
force and effect as if it were a portion of this Act,
provided Canada with the authority and discretion to provide scrip in lieu of land and in so acting, Canada was on-side the
Act and exercising its discretion in a reasonable manner in the circumstances.
Sales Before Patent or Attainment of Majority
1032
The plaintiffs complain that Canada failed to prevent eligible section 31 claimants from selling their lands before
patent or before attaining the age of majority.
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1033
Section 31 of the Act clearly provided that the grant of 1,400,000 acres 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". "Children" in that section
is a word designating lineage, not age. True, many of the children were under 21, or under 18 years of age, the latter being the
age that Canada stipulated for receipt of patent, but many children had attained their majority and, in terms of age, were
adults. In considering this complaint, it is necessary to remember that fact.
1034
As well, it is necessary to remember that there is a difference between the land itself and one's beneficial interest in
the land. It is conceded by all parties that Canada retained ownership of the land until patent and accordingly it and it only
had jurisdiction to legislate in respect of the land and then consistent with the provisions of the Constitution Act, 1871.
1035
In my view, however, the beneficial interest in land was a different matter. Anyone who was an eligible recipient of
land under section 31 had a beneficial interest in that land to the extent of their entitlement. And in my view, Manitoba had
jurisdiction to legislate in respect of such interest, the jurisdiction falling under section 92(13) of the Constitution Act, 1867,
property and civil rights.
1036
The plaintiffs have argued that there was a fiduciary duty owing between Canada and the children in respect of the
section 31 land either by reason of their aboriginality or by reason of their being children. I have already concluded that there
was no such fiduciary obligation.
1037
As well, there was under the Act no obligation on the part of Canada to hold the lands in trust for the children or to
be the guardian of the children in respect of the land. It is true that Cartier said that Canada would be the guardian of the land,
but in fact the evidence in my view discloses that to the extent it could, Canada did just that.
1038
The evidence is that Canada would not issue section 31 patents in the names of assignees. It was prepared to issue
patents only to the actual allottees. However, to the extent an allottee wished to sell his or her beneficial interest in the grant,
he or she was free to do so. Clearly, that was the case with grantees who had attained their majority. It was likewise the case,
in my view, with grantees who had not attained their majority. They were entitled to sell their beneficial interest either at
common law or latterly pursuant to the provisions of legislation passed by the province.
1039
One must remember that the Métis sought to be considered full citizens of the new province and of Canada and to
treat them differently would have been patronizing and in all likelihood viewed with disfavour by the Métis people themselves.
1040
As for those grantees between the ages of 18 and 21 years, Order in Council April 25, 1871, set the age at which
persons would receive their patents at 18 years. At common law the age of majority was not an absolute for all purposes.
Canada had the right to choose the age of 18 years as it did, and there is no evidence of complaint at the time about that provision.
1041
Manitoba passed legislation controlling the sale of the beneficial interests in land by those between the ages of 18
and 21 years and by those under 18 years.
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1042
As regards children under the age of 18 years, the legislation passed by Manitoba at the material time is substantially the same as exists today. That is, a regime exists to permit an infant to sell land or his or her beneficial interest in land, but
in order to ensure that the contractual transaction is binding upon the infant, certain steps must be taken involving court approval.
1043
While the evidence in this case discloses that the legislation then in existence was not being complied with by the
judiciary, that surely is not something for which Canada can be held liable. As well, even though it would fall under the administration of justice, a power under the jurisdiction of Manitoba, it is not something for which Manitoba can be held responsible. The courts operate independently of the Legislature and the Executive and if there are either errors by, or misconduct on the part of, the judiciary, there were and are remedies for that. But it does not translate into vicarious responsibility
for either Canada or Manitoba.
1044
The plaintiffs argue that Canada's duty was to ensure that there was no speculation in respect of the lands before
grant. They say that what was called for was one simple sentence in Order in Council April 25, 1871, barring alienation before patents.
1045
The practical reality in my view is that that would have been impossible. The evidence discloses a variety of methods (to which I have earlier referred) used by people, including the Métis themselves, to enable sales of a grantee's interest
before patent. While the plaintiffs claim that Canada had the ability to stop such sales, I am not convinced that Canada could
have done so legally without bringing the issue under its criminal law powers, that is, making it a crime for people to sell or
to buy. But, from a practical perspective, even that would not likely have put a stop to it.
1046
There is no doubt that sales did occur prior to grant of patent. There is also no doubt that some sales were made to
speculators and for improvident prices.
1047
On November 9, 1881, the Land Grants' Inquiry began its proceedings. Contained in the record of the proceedings[FN250] is considerable evidence of sales being made by prospective grantees to speculators and others and often at prices alleged to be improvident. It is difficult to assess at this time the motives of those who testified but for purposes of this
case, I accept as a general statement that there were indeed many sales by Métis children of their beneficial interest in section
31 lands and for prices that were in some cases improvident, even grossly so. There were undoubted abuses. But as Dr.
Flanagan pointed out in his report:[FN251]
There were many judicial sales (560 more or less), but they made up less than 10 percent of all children's allotments
(6,034).
1048
However, there is as well evidence of sales which occurred at market prices and clear evidence that the sales were
not in all instances sales to speculators or as the result of pressure or conduct of speculators.
1049
For example, Dr. Ens, in his report, records particulars as to the largest number of buyers of river lots in St. Norbert. He wrote:[FN252]
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In identifying all purchasers who bought more than four river lots, that is, large purchasers often referred to as speculators, it is interesting to note that the list contains both Métis and non-Métis, French and English and two members of the
Catholic priesthood. The largest buyer, by a factor of three, was Father Ritchot....
1050
Table 9 records that Ritchot bought 23 river lots in the parish of St. Norbert and Taché, six. Footnote 34 on page 21
of the report states that of Ritchot's 23 purchases, 18 were made between 1870 and 1875 and of Taché's six purchases, four
were made at that time. Of the 22 purchases by Ritchot and Taché, the purchase price could be ascertained for 14. The average price paid per lot was $71.00 (the minimum being $16.00 to a maximum of $165.00). Of those 22 purchases, 15 resales
could be ascertained. The average price of the resale of the 15 lots by Ritchot and Taché was $710.00 from a minimum of
$150.00 to a maximum of $1,800.00.
1051
There is no suggestion made or intended that Ritchot or Taché was a speculator. And if they were not, it is unlikely
then that either of them was approaching Métis and offering to buy their lands. What is more likely is that Métis, without
inducement by speculators or otherwise, were intending to sell their lands for one reason or another and that Ritchot and/or
Taché were buying with a view to selling the lands to other French Catholics who would subsequently move into the province. But, the point remains that like other buyers, Ritchot and Taché appeared to have bought at a lesser price than what they
sold for, presumably both being dictated by the market conditions at the time. And so, too, would it surely have been the case
with others. That does not make them, or necessarily others, speculators, nor does it lead to a conclusion that they, or necessarily others, were taking advantage of the Métis.
Delay
1052
The plaintiffs say that their overarching complaint is that of delay. The Act became effective July 15, 1870. The
final allotment did not commence until October 30, 1876, and was not completed until 1880. While grants of patents continued to be made thereafter, the bulk of them were issued by 1881.
1053
There are a variety of reasons offered in the evidence for the delay in selection and allotment, but it is nevertheless
difficult to understand why this took so long. The time taken between allotment and the actual grant of patent is even more
difficult to explain.
1054
The plaintiffs argue that the delay promoted the sale of the land from the grantees and reduced the prospect of any
opportunity for a Métis land base. They assert that with the passage of time, grantees became increasingly concerned as to
whether the grant would ever be fulfilled, and if so, as to the condition of the land when it was received as compared with its
condition at and shortly after 1870, particularly as regards timber and the quality of the land for hay. This, say the plaintiffs,
would have caused people to decide to sell and obtain what they could rather than continue with the uncertainty and anxiety
over the pending grant. Intuitively, this argument makes sense.
1055
On the other hand, there was no particular time limit set forth in section 31 for final implementation of the land
grant. Furthermore, the circumstances were that a fledgling province had just come into existence, that it was remote from
Ottawa which had the delegated responsibility for administration of the grant, that the Lieutenant Governor and ultimately the
Manitoba Legislature had many issues to address and with which to deal in the establishment of the new province, that many
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of the Métis lived a somewhat nomadic life and that errors occurred which caused, or issues arose which justified, the implementation of changes leading up to the finalization of the size of the land grant and the resulting allocation of the lands.
1056
A concern, however, in assessing the complaint as to delay is the difficulty of having to make an assessment of
circumstances which occurred between 1870 and 1885 approximately, through 2007 glasses. It is an extremely difficult thing
to do reliably. And in doing so, I am reminded that a common lament even today of people wishing to develop land for residential purposes is that there is a considerable delay experienced in obtaining all of the necessary government approvals.
That, of course, is with all of the modern conveniences including instant communication and the significantly increased size
of government.
1057
As regards the implementation of the section 31 grant, the evidence is clear that the patents were not issued "all
over Manitoba" as the plaintiffs assert, but rather were issued to children within the land designated for their respective parishes. The section 31 lands were largely concentrated around what had been the Settlement Belt. There clearly is evidence of
sales of section 31 lands at improvident prices, but there is also considerable evidence of the sale of such lands at market value and at a time when the market for land sales was high. Ultimately, the evidence discloses that many Métis sold their land
but many others kept their land and acquired more. Overall, while there are many examples of what appear to be individuals
having been taken advantage of, it is difficult to assess at this late date whether that was so or whether the price obtained was
a fair price given the vagaries of what it was that was being sold and the consequent market value of that. One can readily
understand how uncertainty whether as to the location of the land or as to the binding nature of the sale agreement, as well as
to the market price of land from time to time, would have a material impact upon the price paid by a purchaser to a vendor.
1058
Ultimately, the Métis who were full citizens of Manitoba at the time made individual choices and there is, in my
view, no basis in law, in the circumstances here, for any finding of liability on the part of Canada respecting the section 31
lands.
Implementation of Section 32
The Plaintiffs' Position
1059
The plaintiffs advance no claim with respect to subsections 32(1) and (2) of the Act except for delay.
1060
The plaintiffs argue that the language of subsections (1), (2) and (3) was necessarily different from the language of
subsection (4) of section 32 by reason of the Selkirk Treaty, pursuant to which aboriginal title within the Settlement Belt was
extinguished. Within the Settlement Belt, therefore, the HBC held unencumbered title and was able to make or withhold
grants of land. Subsections (1) and (2) referred to the grants made by the HBC. Subsection (3) referred to lands within the
Settlement Belt occupied by persons without objection from the HBC.
1061
Subsection (4) on the other hand related to land outside the Settlement Belt where Indian title had not been extinguished.
1062
Thus, subsection (3) provided that squatters on land within the Settlement Belt enjoying title by occupancy with the
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sanction and under the license and authority of the HBC were entitled to have such title converted into a freehold estate by
grant from the Crown.
1063
But in respect of land outside the Settlement Belt, settlers could not acquire any sort of legal interest and the HBC
could not grant a legal interest until Indian title had been extinguished. This, of course, would necessitate a treaty with the
Indians.
1064
Accordingly, such persons in peaceable possession of land outside the Settlement Belt were by subsection (4) accorded the right of pre-emption of that land on such terms and conditions as might be determined by the Governor in Council.
It was in respect of that land that Cartier, by letter of May 23, 1870, promised that persons who fell within the provisions of
subsection 32(4) of the Act would not have to pay for their land.
1065
The plaintiffs argue that the different language in the two subsections was the result only of the different legal status of the land and that there was no reason to believe it was intended to reflect a different test for possession in the two different areas. They assert that what was to be protected in both cases was possession in accordance with the customs and usages of the country.
1066
They assert that as Parliament had reserved to the Crown the power to implement the land provisions of the Act
through regulations, this created fiduciary responsibilities on the part of Canada in the formulation and administration of the
regulations.
1067
The plaintiffs say that the residents were assured by the remarks of representatives of Canada that the land policy
would be liberally construed and say that such a liberal construction was not observed in respect of subsections 32(3) and (4)
during most of the 1870s.
1068
And they assert that during the 1870s, federal officials did not wish to recognize such claims where the evidence of
possession did not amount to "really valuable improvements". They assert therefore that Canada did not wish to recognize
occupancy or possession in accordance with the customs and usages of the country.
1069
The plaintiffs argue that Canada knew about the usages of the country but began rejecting subsections 32(3) and (4)
claims despite the assurances given before and leading up to passage of the Act as to the implementation of a liberal land policy, and in the face of and contrary to the customs and usages of the country.
1070
And they say that the petition of parishioners from Ste. Agathe dated November 13, 1873, is evidence that "peaceable possession" within the Settlement Belt was understood by the settlers to be sufficient evidence of a "title by occupancy"
with the sanction of the HBC within the meaning of subsection 32(3).
1071
The plaintiffs assert that in interpreting and administering the Act, it appears that the primary concern of Canada
was less with the proper interpretation of the Act or the assurances given in 1870 to the Red River delegates and more with
whether fulfilling the promises would result in the Métis having too much land. They assert that regardless of Whitcher's expressed concern,[FN253] the protection of lands such as those at Ste. Agathe was exactly what the Red River delegates had
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sought and Macdonald and Cartier had agreed to.
1072
The plaintiffs refer to Dennis's memorandum of March 4, 1876,[FN254] wherein he provided Laird with particulars
as to the protocol to be followed pertaining to applications for patent for lands under section 32 of the Act. They assert that in
that document and in those other situations where Dennis was providing direction or instruction as to the interpretation of
subsections 32(3) and (4) and as to what would be required in order to qualify a claimant for patent, Dennis's comments were
coloured by his understanding that "occupation" was only established by the presence of "really valuable improvements". The
plaintiffs assert, therefore, that Dennis did not recognize as occupation the sort of possession with few improvements which
was characteristic of the usages and customs of the country prior to 1870 and with respect to which the Red River delegates
had successfully sought recognition in the negotiations.
1073
The plaintiffs refer to Order in Council April 20, 1876, wherein Laird had reported, and the Order in Council
adopted, that lands which were not surveyed or occupied but had merely been marked out by the claimants by stakes prior to
July 15, 1870, were not entitled to consideration for patent. The plaintiffs say it was known, or should have been, to Laird
and Canada generally that prior to July 15, 1870, surveyors were not normally used but were only called on if there had been
a dispute with another settler. The plaintiffs refer to Dr. Flanagan's report[FN255] wherein he wrote:
Most staked claims would have been disallowed under this policy, since only a few claimants had gone as far as to hire a
surveyor.
They also assert that the Order in Council begged the question by stating that lands marked out by stakes were not "occupied". The usage of the country had been to permit occupation by staking.
1074
They say the above observations are therefore circular — where improvements were noted, occupation was recognized. However, this did not recognize the sort of possession, with few improvements, which was characteristic of the usages
and customs of the country prior to 1870 and with respect to which the Red River delegates had successfully sought recognition in the negotiations.
1075
The plaintiffs argue the same point in reference to Dennis's letter of September 23, 1876, to Whitcher[FN256]
wherein he said he had discussed several applications for patent with the Deputy Minister of Justice and had rejected those
with neither improvements nor surveys prior to transfer.
1076
The plaintiffs assert that the rejection of some of the claims was based on the misapprehension of what had been
the usage of the country in respect of the use of surveyors and the mode of taking possession.
1077
The plaintiffs refer to the letter of April 16, 1877, from the Deputy Minister of Justice, Lash, to Dennis regarding a
number of section 32 claims.[FN257]
1078
The plaintiffs assert that the opinions expressed by Lash in that letter are impossible to reconcile with the wording
and intent of section 32, the whole point of which was to protect interests that were based on such things as possession for
obtaining wood and hay. Nor, the plaintiffs say, is it clear why over eight years of occupation was not occupation of the na-
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ture referred to in the statute.
1079
The plaintiffs assert that under subsections 32(3) and (4), "really valuable improvements" were not necessary, settlers were to receive their lands free of charge, and there was no arbitrary maximum size to their entitlements.
1080
The plaintiffs refer to Dr. Flanagan's report,[FN258] wherein he states that the foregoing policy "would have disallowed more than 90 percent of the staked claims on the Rat River and given only small amounts of land for the rest."
1081
The plaintiffs refer to Codd's memorandum of December 20, 1877,[FN259] wherein he wrote of his implementation of the instructions received from Dennis on October 24, 1877, as he applied them in respect of claims in the area of the
Rat River. The plaintiffs assert that with the possible exception of the 42 claims having "no improvements whatsoever", these
rulings were all in violation of subsection 32(4). And even those 42 claims might have qualified for a title by occupancy in
accordance with the usage of the country. In respect of the others, no purchase price of cash or scrip ought to have been required.
1082
The plaintiffs also refer to the memorandum written by Dennis on January 17, 1878, to the Minister of the Interior[FN260] respecting claims to land in the Settlement Belt that prior to transfer had been occupied for some months each
year for sugar harvesting and on which buildings had been erected and the ownership of which had "been recognized for
years before, and at the time of, the transfer, by other settlers on adjoining lands, and generally in the Parish". Dennis had
reported that the only improvement was the erection of a house on which the claimants lived during sugar making season and
that little or no cultivation had been effected. Dennis and Lash considered that these claims were not covered by the Act because they had not been surveyed and possession was not continuous through the year. In some cases, the lands had been sold
to newcomers. Dennis suggested that they be treated as preemption rights with the ability to purchase at $1.00 per acre.
1083
The plaintiffs assert that this is another violation of subsection 32(3). If ownership was acknowledged in the community, the plaintiffs assert the holders had a title by occupancy and should have received a free grant.
1084
The plaintiffs refer to Macdonald's statement of May 5, 1879, in the House of Commons[FN261] that it was the
intention of his government to recognize "such staked claims as have been followed by possession and improvement".
1085
The plaintiffs assert that again improvements were said to be crucial despite the fact that improvements were not
required by section 32 and were not part of the agreement that had been reached with the Red River delegates nine years earlier.
1086
The plaintiffs refer to the letter from Deputy Minister of Justice Burbidge to Secretary Burgess of the Department
of the Interior dated May 4, 1883,[FN262] wherein Burbidge had stated 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 that 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.
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1087
The plaintiffs assert that this was a more liberal interpretation than had been applied during the previous decade
under which many such claims had been described as not worthy of consideration, or had been replaced with scrip, or the
granting of preemption rights, under which the claimants had to purchase their lands. But the plaintiffs say that by this date,
over half of the Métis had left the province and the claims were held by purchasers of their interests. They assert that these
speculators seemed to be more successful in persuading the government to give a liberal interpretation to section 32 than the
Métis and their spokespersons had been. The plaintiffs say that Burbidge's relatively liberal approach was announced eight
years after the Act was passed, during which years a much more restrictive approach had been taken.
1088
The plaintiffs argue that the purpose of subsections 32(3) and (4) of the Act was to protect persons who, in 1870,
possessed land, whether or not anyone was residing on the land at that time as was agreed to between the Red River delegates
and the government representatives in 1870.
1089
As regards subsection 32(5), the plaintiffs assert that the hay and common rights, though regulated by the Council
of Assiniboia, were not created by the council but were longstanding rights enjoyed as part of the custom of the country associated with the river lots.
1090
The plaintiffs argue that the hay privilege was not limited to the inner parishes. They assert that if intuitively the
two miles behind a river lot were vitally necessary in order to make a river lot viable within the inner parishes, the same need
would exist in the outer parishes.
1091
The plaintiffs assert that the laws of the Council of Assiniboia did not refer to any geographic limit for the hay privilege. And in fact when specifically commissioned to inquire and report into the nature and extent of the hay privilege,
McKeagney and Bétournay reported to Morris[FN263] that "these rights, although more or less universally claimed throughout Manitoba, vary very much as to their character and as to the extent and the manner in which they are held and enjoyed by
individuals." And they went on to recommend that a board or commission 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 provinces."
1092
Dr. Flanagan, in his report,[FN264] wrote as to the delay in addressing the hay privilege and the problems which
resulted:
In summary, the government can be faulted for initial delay; almost nothing was done about the hay privilege until January of 1873. This delay produced complicated interference with the Métis children's grant and also made it possible for
newcomers to the province to establish claims to portions of the outer two miles by means of purchase or homestead entry ...
... The most reasonable criticism that can be made is that delay caused some old settlers to lose part of their outer two
miles to newcomers through homestead or preemption.
1093
The plaintiffs, therefore, assert that the failure of the federal government to adequately consult with, and accommo-
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date the concerns of, the old settlers (most of whom were Métis) in respect of their desire to preserve intact their landholdings
(which would include the "hay privilege" lands), amounts to a breach of the honour of the Crown.
1094
In addition to delay (the first grant under subsection 32(5) was not made until 1877), the plaintiffs assert that the
administration of the "hay privilege" was plagued by other problems caused by government officials. Federal officials, say
the plaintiffs, erroneously limited the proper benefit of subsection 32(5) to those settlers within the inner parishes, when the
right extended to all landholdings in what was to become the Province of Manitoba.
1095
And while many (but not all) of the old settlers in the inner parishes eventually received grants of land to the rear of
their lots in commutation of the hay privilege, others in the inner parishes, and all settlers in the outer parishes, received no
more than scrip. The plaintiffs assert that issuing scrip instead of granting land was in direct contravention of subsection
32(5) of the Act.
1096
Additionally, the plaintiffs say federal officials knew or should have known that the viability of the old settlers' lots
for farming and for subsistence purposes was dependent on the lot holder securing full rights (title) over the adjoining land
used for the hay privilege. Without the latter, the former was not viable. Failing to grant title to both parcels facilitated the
alienation of the front parcel of land even if the old settler was fortunate enough to eventually secure title to the same.
1097
Lastly, the plaintiffs assert that by virtue of Orders in Council April 25, 1871, and May 26, 1871, Canada expressly
allowed new settlers to settle upon and gain priority to the outer two miles which were intended to become the fee simple
lands of the old settlers.
Canada's Position Respecting Section 32
1098
Canada argues that the plaintiffs raise four general complaints with respect to Canada's conduct regarding its obligations under section 32 of the Act, namely:
(1) difficulties in acquiring title to subsections 32(3) and (4) lands;
(2) refusal of staked claims and ultimate policy of requiring payment;
(3) commutation of the hay privilege in scrip rather than land, and Canada's failure to render the outer two limits off limits to new settlers; and
(4) delay.
1099
Before addressing those four enumerated complaints, Canada advances by way of argument some general comments respecting section 32.
1100
Canada asserts that there is no relevance to the plaintiffs' case as framed. It argues that the plaintiffs have framed
their case as one which involves the loss of a land base for a collectivity. But the existence of section 32 is inconsistent with
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the notion of a collectivity, since as the Section states, its purpose was to confirm individual titles for all people (EuroCanadian and Métis alike) who were in occupation of their lands at the relevant time. If there is any claim under section 32,
Canada says, it would be that title was not confirmed for a particular person, and there is no evidence before me to that effect
regarding any of the plaintiffs.
1101
Canada says section 32 of the Act has a number of components which simply address the different kind of landholdings which existed as at July 15, 1870. But, the purpose of section 32 is described in its opening words: "For the quieting
of titles and assuring the settlers in the province the peaceable possession of the lands now held by them ..." That is, the purpose of the section was to allow settlers to keep the lands which they held at that time.
1102
Subsections (1) and (2) referred to settlers who held land by way of grant from the HBC whether in freehold or in
estates less than freehold.
1103
Subsections (3) and (4) recognized the rights of squatters. Subsection (3) related to squatters who occupied lands
within the Settlement Belt. Subsection (4) was intended to cover all who lived outside the Settlement Belt and gave a right of
preemption to persons in peaceable possession "at the time of transfer".
1104
Black's Law Dictionary, 6th ed., defines "preemption right" as:
A privilege accorded by the government to the actual settler upon a certain limited portion of the public domain, to purchase such tract at a fixed price to the exclusion of all other applicants.
and
One who, by settlement upon the public land, or by cultivation of a portion of it, has obtained the right to purchase a portion of the land thus settled upon or cultivated, to the exclusion of all other persons.
1105
Both subsections 32(3) and (4) dealt with situations where an interest in land had not been formally conferred by
the HBC. The difference in language between the two sections was to distinguish lands in which Indian title had been extinguished (subsection (3)) from lands in which it had not (subsection (4)).
1106
In the former case, the land being within the Settlement Belt, Indian title no longer existed and the squatters' occupation of such lands, though not formally conferred by the HBC, was authorized or permitted by it.
1107
In the latter case, the land being outside the Settlement Belt, Indian title still existed. Hence, the HBC had no authority to grant titles or to authorize or permit occupancy.
1108
Canada argues that the term "peaceable possession" in subsection (4) simply acknowledges that Indian title still
existed and notwithstanding that, these people had been in possession free from adverse claims of the Indians at the time
Manitoba became a province.
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1109
Canada submits, however, that peaceable possession necessitated some degree of occupation. It asserts the case law
is clear that a title by possession requires some degree of occupation of the land. Moreover, a right of preemption was given
by subsection 32(4) and preemption requires settlement, inhabitation, and improvement by the preemptor.
1110
In support of this proposition, Canada refers to Hosmer v. Wallace, 97 U.S. 575 (U.S. S.C. 1878), a decision of the
United States Supreme Court, wherein, at p. 579, the court wrote:
To create a right of pre-emption there must be settlement, inhabitation, and improvement by the pre-emptor, conditions
which cannot be met when the land is in the occupation of another.
1111
In Bank of America National Trust & Savings Assn. v. Bank of Amador County, 135 Cal. App. 714 (U.S. Dist. Ct.
App. 1933), a decision of the Court of Appeal of California, the court wrote, at p. 720:
'Possession of land' has been defined as the actual control, by physical occupation; the holding of it, and the exercise of
dominion over it; the immediate, exclusive dominion of it; that position or relation which gives to one its use and control
and excludes all others from a like use or control. ...
1112
In Bentley v. Peppard, 33 S.C.R. 444 (S.C.C.), Sedgewick J., for the court, wrote, at p. 446:
3. Where a person without title and without right (in Canada we call him a "squatter") enters upon land, his possession in
a legal sense is limited to the ground which he actually occupies, cultivates and encloses; it is a possessio pedis — nothing more.
1113
And in Moore v. Boyd, 39 F.2d 502 (U.S. Ct. App. D.C. 1930), a decision of the Court of Appeals for the District
of Columbia, Martin C.J., for the court, wrote, at p. 503:
Possession of land has been defined as the holding of it and exclusive exercise of dominion over it. ... As applied to land,
the term may be employed in the sense of Occupancy, q.v., with which it is nearly if not quite synonymous, and which
has been said to be its ordinary meaning. 31 Cyc. 925
1114
Canada asserts that if one agrees that those persons entitled under subsection 32(4) were supposed to be placed in
the same position ultimately as those persons entitled under the first three subsections of section 32, the underlying tests are
the same. The concept of occupancy clearly pertained respecting subsections 32(1), (2) and (3). Canada argues that once Indian title was removed, which it shortly was by reason of treaty, it made more sense to insist upon sufficient indicia of occupancy for subsection 32(4) than to dispense with the concept of occupancy for subsections 32(1), (2) and (3).
1115
While debates in Parliament are not evidence of Parliament's intent in enacting legislation, it is clear from Macdonald's speech on May 2, 1870, that he, at least, believed occupancy was required. The Hansard record records Macdonald's
comment as follows:[FN265]
My hon. friend (Hon. Sir George-E. Cartier) reminds me of the question of the confirmation of the legal occupation of
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the people there. It is so obviously the interest of the people of this country to settle that Territory as quietly as possible,
that it would be a most unwise policy for a new Government to create any difficulties as to the rights of property — it
would be most unwise to allow those difficulties to arise which might spring from one man having a title to a freehold,
while his neighbour would only have to say he held under a lease of occupation. But as these settlers are not numerous,
and it is of great importance that they should be satisfied, it is proposed to insert a clause in the Bill, confirming all titles
of peaceable occupation to the people now actually resident upon the soil.
1116
Canada argues that subsection 32(5) is simply recognition that people had certain haying and pasture rights prior to
Confederation. This subsection, it asserts, was directed to finding them some compensation for those rights.
(1) Difficulties in acquiring title to subsections 32(3) and (4) lands
1117
Canada asserts that except for staked claims, the plaintiffs brought little or no evidence to support their contention
that titles to be provided pursuant to subsections 32(3) and (4) were hard to have confirmed.
1118
Canada called Dr. Ens to provide evidence as to the ease with which people could obtain their section 32 patents. It
asserts the plaintiffs did little to prove their contention but simply chose to try and limit Dr. Ens' evidence. Canada submits
that there is some evidence that recognition of subsections 32(3) and (4) lands was not difficult and refers to Ens' Migration
and Persistence Study[FN266] and Ens' Manitoba Métis Study.[FN267] It says that while the plaintiffs belittled that portion
of Dr. Ens' study, they did nothing to counter it with any evidence of their own except to concentrate on the situation in Ste.
Agathe regarding claims by a group of people to both sides of the river.
1119
Canada argues that the Ste. Agathe situation was unique. People were not claiming that they occupied the east bank
but only that they used it for pasture. Canada asserts that that is more of a subsection 32(5) issue than subsection 32(4). And,
the outcome of the issue is unknown.
1120
But, says Canada, to the extent that there was dissatisfaction, it was incumbent upon those people to pursue their
dissatisfaction, if any, at the time, not 100+ years later.
(2) Refusal of staked claims and ultimate policy of requiring payment
1121
Canada asserts that all or nearly all of the staked claims in question were staked between May 12, 1870, the date
the Act was passed, and its effective date of July 15, 1870, and were not contemplated by the Act.
1122
It argues that section 32 was intended only to protect people for lands which they "now held". Accordingly, the act
of trying to obtain more land between the time the Act received royal assent (May 12) and the time the Act was proclaimed
(July 15) was inconsistent with the intent of Parliament and Canada was correct in refusing to provide those grants for free.
1123
Ritchot's letter of May 18, 1870, to Cartier suggested that the people who were "now in possession" were the ones
who should get their lands for free. But there is evidence that upon his return to Red River, Ritchot was involved in leading
people to proceed to stake claims prior to July 15, 1870, knowing that that was to become the effective date for transfer.
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1124
Canada submits that in writing his letter of May 23, 1870, Cartier could not have known that which Ritchot was
about to do and that he did not intend by his letter to give staked claims for free though Canada acknowledges that it may be
arguable by the wording of subsection 32(4) that they were eligible for preemption.
1125
Whatever the case, Canada asserts that ultimately the staked claims issue was settled following enactment of Order
in Council February 25, 1881,[FN268] and people took the benefit of the settlement. Again says Canada, the plaintiffs cannot
raise the issue afresh 100+ years later.
(3) Commutation of the hay privilege in scrip rather than land, and Canada's failure to render the outer two miles off limits to new settlers
1126
Canada asserts the plaintiffs complaint about the implementation of subsection 32(5) was really:
(1) that settlers outside of the inner parishes should have received land and not scrip; and
(2) that the outer two miles were not rendered off limits to new settlers by Orders in Council April 25, 1871, and May
26, 1871, with the result that new settlers were permitted to settle upon lands intended to become the fee simple lands of
the old settlers.
1127
Contrary to the plaintiffs' assertion that there are no documents to support a conclusion that the "hay privilege" was
limited to the inner parishes, Canada asserts that there are documents which support such a conclusion or at least the conclusion that the "hay privilege" was not the same throughout the province.
1128
McKeagney and 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.[FN269] In that letter, they said they had visited a number of the parishes in the province and had conferred with the leading people therein respecting 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.
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1129
Campbell provided a memorandum dated September 2, 1873, which was attached to and contained the recommendations approved and adopted by Order in Council September 6, 1873.[FN270] The Order in Council appointed Bain and
Dubuc to the board or commission created to investigate the individual claims of persons advanced under subsection 32(5) of
the Act. As well, Campbell recommended and the Order in Council approved and adopted:
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.
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 by taking the corresponding quantity from unclaimed
Dominion lands upon the rear of the allotment.
1130
And in December 1873,[FN271] Dennis told the Minister of Justice that the Council of Assiniboia only recognized
the right of cutting hay in certain parishes. 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.
1131
Canada acknowledges that the practice of cutting hay did not originate with the Council of Assiniboia. But it argues
the practice was given the force of law by the Council's regulations. Canada thus asserts that it is only on that basis that one
can speak of rights of common and of cutting hay as those phrases are used in the Act.
1132
The Council's regulations dealing with hay refer to the two-mile line and the four-mile line.[FN272] Canada submits that the regulations do not prima facie cover the outer parishes where the Taylor Survey (and thus the two-mile and fourmile lines) did not apply.
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1133
On February 23, 1874, Bain and Dubuc recommended in part:[FN273]
9th. That where the outer two miles is not taken up in any way, the owner of each front or River lot in those Parishes
where the Rights existed should receive a grant of the land in the outer two miles immediately in rear of his lot, such
grant to be in full commutation of all Rights of common and of cutting Hay claimed in respect of the front lot.
1134
And Morris in his detailed letter of March 18, 1874,[FN274] wrote, in part:
2nd. As I am informed, the right of Common and of Hay cutting in the outer two miles was only recognized in the old
Parishes of the District of Assiniboia, which were settled when the permission was granted.
Thus in the Parishes on the Red River I learn the right was recognized in St. Boniface, East and West St. Vital, St. Norbert, that part of St. Agathe up to Salt Springs or Crooked Rapids, St. John's and Winnipeg, Kildonan, St. Paul, St. Andrews, but not in St. Peter's. On the Assiniboine in St. James, St. Charles, Headingley, St. Francois Xavier East and West
up to Baie St. Paul, which last did not participate therein. I also am informed that it did not prevail in Poplar Point or
High Bluff.
3rd. The Parish of Ste. Anne was a recent settlement and did not enjoy the privilege, but its inhabitants claim that they
had a right of Hay cutting in a large marshy common in the Parish, which produces large quantities of Hay.
With regard to part of St. Boniface, West St. Vital and St. James, the lots did not in all cases run two miles beyond the
inner two miles, but were cut off by the system of surveys between the two rivers, and ran back till cut off by the River. I
learn that the settlers in these Parishes or parts of Parishes so affected were all in the habit of cutting hay in an unoccupied tract, or Common between the Red and Assiniboine Rivers, but this tract now forms part of a half-breed reserve.
1135
Canada says that while Morris did not cite the source of his information, it is reasonable to infer that he was relying
on the findings of Bain and Dubuc who had been commissioned to evaluate claims under subsection 32(5) and who had issued a report February 23, 1874, after studying two parishes in detail.
1136
Canada refers to the plaintiffs' argument that it is counterintuitive to assume the outer two miles were confined to
the inner parishes for if the outer two miles were necessary for the viability of river lots in the inner parishes, so, too, would it
be necessary for the viability of lots in the outer parishes.
1137
In making this argument, the plaintiffs rely on Dr. Flanagan's statement that "in the densely settled English parishes
such as Kildonan, St. Andrews, and St. Paul's, many of the farms had been small to start with, and some had been subdivided
among children. If the hay privilege was lost, some of the farms would no longer be viable."[FN275]
1138
But Canada says that on cross-examination, Dr. Flanagan agreed that lots in the less populous outer parishes "were
inclined to be larger than their [sic] were in the more crowded inner parishes".[FN276]
1139
In the result, Canada argues that the plaintiffs' proposition based on intuition does not necessarily hold up. If, as Dr.
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Flanagan testified, the outer parishes were inclined to be larger than the more crowded inner parishes, then the argument as to
the need for the outer two miles in order to make outer parish lots viable does not necessarily follow.
1140
Canada also asserts that McKeagney and Bétournay did not say that there was an entitlement to hay rights throughout Manitoba. What they said was that hay rights were universally claimed throughout Manitoba. And, of course, McKeagney and Bétournay described such rights (whether to claim or to entitlement) as varying very much as to their character and
as to the extent and manner in which they were held and enjoyed by individuals.
1141
Canada says there is no evidence referred to by the plaintiffs of complaint by any of the outer parishes that Canada
did not commute their hay privilege by a grant of land.
1142
While the historic record is not conclusive on this issue, the plaintiffs offer no evidence to challenge the findings of
federal officials who were on the ground at the time.
1143
In any event, Canada argues that the question is academic because Order in Council April 17, 1874,[FN277]
awarded a benefit under subsection 32(5) to all successful claimants under section 32, not just those in the inner parishes. The
only difference in treatment was that occupants outside the inner parishes were given scrip, and the scrip was convertible into
land.
1144
As regards the question of entitlement to the outer two miles, Canada says that when Orders in Council April 25,
1871, and May 26, 1871, were passed, Canada had not settled on a policy for commutation of the rights of hay and common.
Nor had Canada ascertained the scope of such rights. But, when Canada did decide to grant the actual outer two miles where
the outer two miles were recognized by the Council of Assiniboia, it also undertook by Order in Council April 17, 1874, to
compensate settlers whose outer two miles had been encroached upon by virtue of the Orders in Council April 25, 1871, and
May 26, 1871.
1145
Canada says the Act did not require the specific lands in rear of the river lot to be given in commutation. This was
recognized in Canada (Attorney General) v. Fonseca (1888), 5 Man. R. 173 (Man. C.A.). At p. 182, Taylor C.J., for the
court, wrote:
... Sub-section 5 gives no right to any particular land, but merely provides for commutation of rights of common and cutting hay by grants of land, not necessarily the lands, or even part of the particular lands, over which the rights existed.
Grants made under that sub-section, both as to the quantity of land, and as to the particular land to be granted, are grants
by the grace and favor of the Crown. It was for the Government to say, in each case, what would be the fair and equitable
terms of commutation.
1146
Canada argues that if the exact lands were required to be given, there would be no reason for the word "adjusting"
in subsection (5). Accordingly, the receipt of scrip which could be located on available Crown lands elsewhere in the province, in Canada's submission, was not inconsistent with the Act.
1147
Indeed, there is evidence (Archibald's dispatch of December 27, 1870)[FN278] and a memorandum from McMick-
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en to Aikins in February 1872,[FN279] which indicate that by the dates of those respective documents, the outer two miles
were not as lucrative a source of hay as had previously been the case, and that in many instances hay was being taken from
other locations well beyond the outer two miles behind one's river lot.
1148
Canada submits that ultimately there is no evidence that anyone suffered adversely by reason of the scheme Canada
developed. For those lot owners whose outer two miles were impacted by homestead and preemption claims, scrip was given
at the rate of one and one-half times the amount of land so taken up. Canada submits that that compromise was both reasonable and well within the discretion given to the Governor General in Council by the Act and should not be second-guessed
today.
(4) Delay
1149
The plaintiffs complain about delay in the issuance of patents under section 32. Canada says that even if there were
delay, it did not cause deprivation. People were not kept off their lands in the interim. Accordingly, to say that delay forced a
person to sell his/her land is difficult to understand. There is no evidence that people who were claiming lots under section 32
were being dispossessed by the government while their patents were pending. Thus, Canada says that if those people chose to
sell prior to their patents issuing, it must have been for reasons unrelated to the fact that they had not yet received a response
to their application for patent.
1150
As regards the hay privilege, subsection 32(5) expressly authorized the government to ascertain the rights of hay
and common before settling the terms by which they would be adjusted. The section itself contemplated a period of investigation, as well as policy formulation before grants could begin.
1151
There is no specific time line for performance set forth in respect of section 32. Canada says that one has to look at
the times when assessing the argument of delay. The federal bureaucracy was not the size it is today. Communication both as
to investigations, reports and the receipt of decisions was much more primitive and slow than is the case today. Moreover,
there were countless undertakings and competing interests to be dealt with in setting the infrastructure for the operation and
development of the new province and from Canada's perspective, in continuing its goal of creating and developing a country
to the Pacific. More specifically, such competing interests to be balanced included those under sections 31 and 32 of the Act,
the matters to be dealt with pursuant to the remainder of the Act, and public affairs generally.
1152
As Dr. Flanagan noted in his report,[FN280] once the Cabinet realized that action was necessary, it arrived at a
comprehensive policy in about a year and a quarter (January 1873 to April 1874) even though Macdonald's government fell
in this period and a national election was held.
1153
Implementation of the policy was slowed by the need to resurvey the outer two miles into river lot configuration in
those parishes in which the hay privilege was recognized. Headingley and the French parishes were resurveyed first and were
completed by the end of 1875. The rest of the English parishes were completed approximately one year later.[FN281]
1154
The initial decision to apply the general system of survey to the outer two miles was a reasonable one in the circumstances, given that the Act did not require commutation of the hay right by any specific parcels of land. As well, to the
extent that grants of land or scrip under subsection 32(5) would be directed to the actual purpose of cutting hay, one must
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remember that the right of common still existed, subject to some restrictions[FN282] during the period of policy formulation
and implementation. Settlers did not lack access to hay while these details were being worked out.
1155
For these various reasons, Canada submits that it would not be appropriate to issue a declaration of unfulfilled obligations on account of delay regarding section 32.
Analysis
1156
Section 32 of the Act provides:
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.
(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.
1157
The purpose of section 32 is clearly stated in the opening words of the section. As well, clear and broad discretion
is given to the Governor General in Council with respect to the administration and implementation of subsections (4) and (5)
of section 32, which included the broad discretion to impose terms and conditions and to pass regulations in that regard.
1158
The plaintiffs advance no claim under subsections 32(1) and (2) other than for delay. Consequently, no comment is
required with respect to those subsections other than on that single issue.
1159
As regards subsections (3) and (4), the plaintiffs and Canada essentially agree, and I concur, that the difference
between them is as to the status of that land at the time of transfer.
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1160
The land under subsection (3) was located within the Settlement Belt, where by reason of the Selkirk Treaty, Indian
title had been extinguished. Consequently the land fell under the authority of the HBC and the subsection spoke to occupancy
with the sanction of the HBC.
1161
The lands referred to in subsection (4), however, were outside the Settlement Belt and hence in an area of the Province where Indian title had not been extinguished. Accordingly, neither the HBC nor Canada could deal with that land, including sanctioning titles to it without addressing the existence of Indian title.
1162
When the Act was passed and at its effective date, the land described in subsection (3) had at least been subject to
the authority of the HBC, whereas the land under subsection (4) was not subject to the governing authority of the HBC or
Canada.
1163
Of necessity, things had to be done in order for implementation to occur, more in some instances than in others,
depending upon the status of the land and the need to accommodate the interests of all who claimed entitlement under section
32.
1164
Clearly Parliament recognized this and the fact that such things would occur over time. Hence, section 32 so provided and the usual vehicle through which to proceed, namely, through the Governor General in Council, was proscribed. As
I will shortly write, the implementation which would occur over time fell within the discretion of Canada via the Governor
General in Council.
1165
There are complaints advanced by the plaintiffs in respect of the implementation of section 32 which in light of
conclusions I have already reached in this judgment need no further consideration, and in my view are without merit in the
circumstances of this case.
1166
For example, there is much reference in the plaintiffs' argument to the fact that certain of the regulations passed in
respect of, and the implementation of subsections 32(3) and (4) were contrary to representations made, and more particularly
to the agreement reached between the Red River delegates and Macdonald and Cartier.
1167
Clearly, representations and assurances were given both prior to the negotiations which led to passage of the Act
and during those discussions. But as I have already concluded, there was no agreement reached. There was an Act of Parliament, the Act. That which may have proceeded was clearly subsumed by the Act and the purpose and meaning of section 32
must be determined from the language of the Act and the section itself.
1168
As well, the plaintiffs argue that there was a fiduciary duty owed to the settlers entitled under section 32 and, as
well, that Canada failed to adequately consult with and accommodate the concerns of the old settlers in respect of their desire
to preserve intact their land holdings, including the hay privilege lands, which amounted to a breach of the honour of the
Crown. The basis of both arguments is that most of the settlers were Métis.
1169
I disagree. Just as I have found that there was no fiduciary duty owing nor implication of the honour of the Crown
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in respect of the section 31 grant, neither existed here.
1170
The provisions of section 32 did not apply to the Métis as Métis, but it applied to all settlers. Its purpose had nothing to do with the aboriginality of the Métis, but was simply to quiet titles and assure the retention of lands by all residents of
Red River who had held such land prior to transfer.
1171
Act.
The question for determination is whether Canada complied with its statutory obligations under section 32 of the
1172
The plaintiffs refer to Dennis' memorandum of March 4, 1876,[FN283] and assert that there and in other instances
where he was providing direction or instruction as to the interpretation and administration of subsections 32(3) and (4) and in
particular as to what would be required to qualify a claimant for patent, Dennis' comments were coloured by his understanding that "occupation" was only established by the presence of "really valuable improvements." Based upon the evidence, it is
my view that this proposition is incorrect, or at the very least highly doubtful.
1173
It appears from the evidence that the phrase "really valuable improvements" did not come from Dennis, but from
the Minister of the Interior and/or the Governor General in Council.
1174
The first reference made by Dennis to the phrase "really valuable improvements" is found in his reply to Codd dated October 24, 1877,[FN284] more than 18 months after the March 4, 1876 memorandum. In the October 24, 1877 letter,
Dennis wrote:
The subject alluded to in your telegram of the 22 inst has received consideration at the hands of the Minister.
It is inexpedient to indicate to you by wire the Minister's views in the matter, on account of the expense involved. I am
therefore to proceed to inform you by letter.
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 20 th Apr 1876, the
parties claiming are not entitled to favourable consideration.
1175
In the Order in Council April 20, 1876, the second class of claims is described as follows:
2. 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.
1176
As regards that second class of claims, the Order in Council stated:
The second class the Minister submits are not entitled to consideration.
He remarks that the mode proposed of dealing with the above two classes is consistent with the opinion of the Honoura-
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ble the Minister of Justice in respect of such claims.
1177
In my view, there is no evidence to support the plaintiffs' assertion, at least until approximately October 24, 1877,
that comments of Dennis concerning the requirements necessary to qualify a claimant for patent under subsection 32(4) were
coloured by his understanding that "occupation" was only established by the presence of "really valuable improvements."
Further, any such colouring, if it did exist, was the result of direction from the Minister of the Interior, wherein lay the authority as a member of Cabinet to set the terms and conditions under subsection 32(4).
1178
Other arguments advanced by the plaintiffs having to do with a misapprehension by Canada of what had been the
usage of the country respecting the use of surveyors, the mode of taking possession, and the requirement by Canada for evidence of improvements, in my view, are without merit given the discretion afforded Canada under subsection (4).
1179
In my opinion, Canada was entitled to require some degree of occupation for the existence of peaceable possession.
As a proposition of law, that was, at least arguably, sound and Canada was permitted to do so under the discretion given by
the Act. If its exercise of discretion was carried out in good faith, and there is no allegation to the contrary, it surely cannot be
challenged, certainly at this late date.
1180
Canada asserts that most of the staked claims arose between May 12, 1870, the date the Act was passed, and July
15, 1870, the date it became effective. It refers to the opening provision of section 32 and says that that section was intended
only to protect people for lands which they "now held." The act of trying to obtain more land in the intervening period of
May 12 to July 15, 1870, was, Canada argues, inconsistent with the intent of Parliament and Canada was correct in refusing
to provide those grants for free.
1181
Canada refers to Ritchot's letter of May 18, 1870, to Cartier which prompted Cartier's response of May 23, 1870, in
respect of the subsection 32(4) lands. In his letter, Ritchot suggested that the people who were "now in possession" should get
their lands for free. Cartier could not have known when he responded on May 23 that Ritchot was about to counsel or participate with people to proceed to stake claims prior to July 15, 1870, knowing as he did that that was to become the effective
date for transfer. While Canada acknowledges that it may be arguable by the wording of subsection 32(4) that such claimants
would be eligible for pre-emption, it asserts that in the circumstances it cannot be taken as intended by Parliament or for that
matter, by Cartier that such people would receive their land for free.
1182
I must say that I find Canada's argument on this point attractive. In any event however, this, in my view, is clearly
another matter that falls within Canada's discretion in setting the terms and conditions respecting the land described in subsection 32(4).
1183
As regards the hay privilege, the plaintiffs assert that there are no documents to support a conclusion that the "hay
privilege" was limited to the inner parishes. To agree with that would be to ignore Morris' letter of March 18, 1874.[FN285]
1184
Moreover, the regulations of the Council of Assiniboia dealing with hay refer to the two-mile line and the four-mile
line. The former would of course only have existed within those parishes where the Taylor Survey applied.
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1185
The plaintiffs have taken issue with the fact that in implementing section 32, Canada did not in all instances provide grants of land but rather provided scrip, particularly in the commutation of certain hay privileges.
1186
In my view, when one considers the language of subsection 32(5) and of section 33 of the Act, Canada was entitled
to do so. Subsection 32(5) clearly contemplated regulations from time to time providing for the ascertaining and adjusting of
the rights of common and of cutting hay and while the language called for commutation by grants of land, section 33 authorized the Governor General in Council to settle and appoint the mode and form of grants of land. Canada's decision to grant
scrip in lieu of land or to attach other conditions was, in my view, fully within the discretion provided to it under the Act.
1187
The plaintiffs have as well complained with respect to all of section 32 regarding delay in its implementation.
There is no question that the implementation of section 32 took a considerable period of time. In some respects, as I said in
respect of section 31, it is difficult to understand why such a delay occurred. However, it is my view that without evidence
from those on the ground at the time involved in the implementation of section 32 and at this late date it would be dangerous
to reach any conclusion on that subject. While it is true that the documents tell a story, they do not tell a complete story. By
that I mean it would have been exceedingly helpful, and without it, in my view, risky to reach a conclusion on the issue of
delay without receiving evidence which might explain the delay. Obviously, the world is very different today than it was at
the time. The bureaucracy is much larger than it was then. Technology is much improved. The speed with which things are
capable of being done is much greater. In my view, it is not appropriate to pass judgment on this issue in 2007 in respect of
matters that occurred 125 years ago.
1188
At the very least, it is not something which, in my view, should give rise to declaratory relief.
Conclusion
1189
The plaintiffs' claim is not one for individual relief. Nor is it one for compensation whether by way of land or money. Rather it is a claim for declaratory relief.
1190
The specific declarations sought are set forth in the introduction to this judgment. Their purpose is to assist the
plaintiffs in subsequent negotiations with Canada and Manitoba to achieve a land claims agreement and thereby fulfill the
plaintiffs' stated goal of obtaining a land base for the Métis in Manitoba.
1191
court.
The law is clear that declaratory relief is equitable relief and is a discretionary remedy within the power of the
1192
I do not propose to undertake a detailed explanation of the issues which would have been necessary and appropriate
for consideration in determining whether or not to exercise my discretion and grant the declaratory relief sought for, as I have
stated in the introduction to this judgment, the plaintiffs' action for the declarations sought is dismissed in its entirety.
1193
That is not to diminish the role of the Métis in the exploration, development or life of the Red River Settlement, or
of the area that preceded its creation, or of the Province of Manitoba as at July 15, 1870 and to the present day. The Métis
have been essential participants and have made significant contributions throughout.
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1194
Indeed, the plaintiffs may be able to negotiate a land claims agreement with Canada and Manitoba and thereby
achieve their expressed goal of obtaining a land base for the Métis in Manitoba. That is as may be and as the future will unfold.
1195
But a lawsuit is decided on legal principles, not political considerations, applied not in a vacuum, but to a set of
facts found upon evidence adduced at trial.
1196
In my opinion, the facts of this case cause me to conclude that as a matter of law the plaintiffs' claim is fundamentally flawed.
1197
It seeks relief that is in essence of a collective nature, but is underpinned by a factual reality that is individual.
1198
At the relevant time, the Métis did not live in a communal or collective setting. True, they lived more or less together in parishes, the common connection being religion, language and culture.
1199
But they held land on an individual basis and were able to and did sell, buy and otherwise deal with their land as
did as any other individual, but Indians.
1200
Sections 31 and 32 of the Act by their language clearly provided for individual grants, and section 32 was not directed at the Métis qua Métis, but to landholders in the area that became Manitoba.
1201
Given the factual basis for this litigation, I fail to understand how the plaintiffs can now seek collective entitlement
to a land base, something they did not enjoy or seek to enjoy at the material time.
1202
There is nothing in the evidence to suggest that Canada ever discussed or contemplated the creation of a land base
for the Métis at the time. Nor is there anything in the language of section 31 or 32 which speaks of or from which one could
infer that a land base was intended.
1203
Indeed, in my view, the evidence is otherwise.
1204
In fact, as I have previously stated in my reasons, plaintiffs' counsel conceded that the best the Métis could have
hoped for at the time was the opportunity for creation of a land base. But that would only have occurred had Canada been
able to encumber or entail the section 31 grants (which in its discretion it decided not to do and which the then Métisdominated Manitoba Legislative Assembly expressly did not want) and if the Métis had been able to persuade the grant recipients not to sell their grants once received.
1205
As I have concluded, the Métis did not hold aboriginal title to the land in question, no fiduciary obligation existed
and no fiduciary duty was owed by Canada to the Métis in respect of the land under section 31 or under section 32, which
was simply a quieting of titles section, as it states.
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1206
Rather, the duty owed by Canada under these sections was simply a public law duty. And, the language of section
31 and subsections 32(4) and (5) gave Canada a broad discretion in the fulfillment of that duty.
1207
It is clear that the grants under both sections were not implemented or administered without error or dissatisfaction.
1208
The section 31 grant left 993 persons entitled under the section without land and with scrip instead. And there was
lengthy delay in the implementation of the grants under both sections. But there was little complaint from those on the
ground at the time, albeit I am satisfied that the Métis and particularly their leaders were aware of the rights given to them
under the Act. And with the exception of one person, Robert Lang, an employee of Canada within the Department of the Interior who was found to have advanced patent requests for favours in the early 1880s, there is no evidence of misconduct or
bad faith on the part of any politician or civil servant throughout.
1209
Indeed, there is no claim of dishonesty, sharp dealing or bad faith attributable to the defendants in the claim as advanced.
1210
While clearly less than perfect, the evidence does establish that Canada distributed more than 1.4 million acres to
the children of the half-breed heads of families as required under section 31, taking care to consult the Métis as to the location
of the reserves. As well, following allocation of the entire grant, Canada gave $240 scrip notes to those children who should
have received land under the grant.
1211
In addition, after excluding the heads of half-breed families from sharing in the 1.4 million acre grant, as the Act
required, Canada thereafter passed legislation which gave the heads of families, both men and women, an ex gratia grant of
$160 scrip.
1212
As well, Canada did grant patents under subsections 32(1) to (4) of the Act consistent with its interpretation of its
obligations thereunder. Those claims which it interpreted not to come within the language of those subsections were resolved
with a combination of special grants and sales at concessionary prices. Further, Canada settled the rights of hay and common
provided for under subsection 32(5) of the Act by land grants and/or the grants of scrip.
1213
The point is, that while clearly less than perfect, the grants were made with little in the way of complaints and no
proceedings commenced.
1214
In my view, this is a case where the court should be guided by the comments of the Supreme Court of Canada in
Blais when interpreting the Act. At para. 17 of Blais, after commenting that a constitutional document (which the Act is) must
be read generously, the Court referred to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), at 344, and wrote:
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.
1215
As well, I am mindful of the words of Binnie J., writing for the majority of the Supreme Court in Marshall v. Can-
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ada, [1999] 3 S.C.R. 456 (S.C.C.). Although his comments were made in the context of treaty interpretation, not statutory
interpretation, as is the case here, it is my view that his words are apposite to the circumstances of this case. He wrote, at para. 14:
"Generous" rules of interpretation should not be confused with a vague sense of after-the-fact largesse.
1216
The plaintiffs' action is dismissed.
Action dismissed.
APPENDIX
Authorities by the Plaintiffs
Cases:
Canada (Canadian Wheat Board) v. Manitoba Pool Elevators, [1952] A.C. 427 (Manitoba P.C.)
Canada (Attorney General) v. Higbie, [1945] 3 D.L.R. 1 (S.C.C.)
Forest v. Manitoba (Attorney General) (1979), 101 D.L.R. (3d) 385 (S.C.C.)
Montreal Trust Co. v. Abitibi Power & Paper Co., [1943] A.C. 536 (Ontario P.C.)
Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539 (S.C.C.)
Amax Potash Ltd. v. Saskatchewan (1976), [1977] 2 S.C.R. 576 (S.C.C.)
Angle v. Minister of National Revenue (1974), 47 D.L.R. (3d) 544 (S.C.C.)
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1 (S.C.C.)
Vancouver Island Railway, An Act Respecting, Re, [1994] 2 S.C.R. 41 (S.C.C.)
Apsassin v. Canada (Department of Indian Affairs & Northern Development), [1995] 4 S.C.R. 344 (S.C.C.)
British Columbia v. Canadian Forest Products Ltd., [2004] 2 S.C.R. 74, 2004 SCC 38 (S.C.C.)
Calder v. British Columbia (Attorney General) (1973), 34 D.L.R. (3d) 145 (S.C.C.)
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2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165
A.C.W.S. (3d) 820
R. v. Prince Edward Island (1977), 83 D.L.R. (3d) 492 (Fed. C.A.)
Canadian Council of Churches v. R., [1992] 1 S.C.R. 236 (S.C.C.)
Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2) (1966), [1967] 1 A.C. 853 (U.K. H.L.)
Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 195 D.L.R. (4th) 135 (Ont. C.A.)
Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.)
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.)
Di Iorio v. Montreal Jail (1976), [1978] 1 S.C.R. 152 (S.C.C.)
Dumont v. Canada (Attorney General), 48 Man. R. (2d) 4 (Man. Q.B.)
Dumont v. Canada (Attorney General) (1988) (Man. C.A.)
Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279 (S.C.C.)
Fales v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302 (S.C.C.)
Fidelitas Shipping Co. Ltd. v. V/O Exportchleb, [1965] 2 All E.R. 4 (Eng. C.A.)
Fillion v. Degen (2005), 195 Man. R. (2d) 2 (Man. C.A.)
Follis v. Albemarle, [1941] 1 D.L.R. 178 (Ont. C.A.)
Forest v. Manitoba (Attorney General) (1979), [1979] 4 W.W.R. 229 (Man. C.A.)
Granovsky v. Canada (Minister of Employment & Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 (S.C.C.)
Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.)
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (S.C.C.)
Hodgkinson v. Simms, [1994] 3 S.C.R. 377 (S.C.C.)
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A.C.W.S. (3d) 820
Jones v. Canada (Attorney General) (1974), [1975] 2 S.C.R. 182 (S.C.C.)
Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205, 2002 SCC 9 (S.C.C.)
Labrador Co. v. R. (1892), [1893] A.C. 104 (Quebec P.C.)
Lalonde v. Ontario (Commission de restructuration des services de santé) (2002), 56 O.R. (3d) 505 (Ont. C.A.)
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 (S.C.C.)
M.D. Sloan Consultants Ltd. v. Derrickson (1991), 61 B.C.L.R. (2d) 370 (B.C. C.A.)
Mahe v. Alberta, [1990] 1 S.C.R. 342 (S.C.C.)
Reference re Language Rights Under s. 23 of Manitoba Act, 1870 & s. 133 of Constitution Act, 1867 (1985), 19 D.L.R. (4th)
1 (S.C.C.)
Maynard v. Maynard (1950), [1951] S.C.R. 346 (S.C.C.)
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69 (S.C.C.)
Borowski v. Canada (Minister of Justice), [1981] 2 S.C.R. 575 (S.C.C.)
MacNeil v. Nova Scotia (Board of Censors) (1975), [1976] 2 S.C.R. 265 (S.C.C.)
Nowegijick v. R., [1983] 1 S.C.R. 29 (S.C.C.)
State of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (U.S. Dist. Col. App. 1989)
Ontario Mining Co. v. Seybold (1902), [1903] A.C. 73 (Ontario P.C.)
Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (S.C.C.)
Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119 (S.C.C.)
Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, 2001 SCC 85 (S.C.C.)
Penvidic Contracting Co. v. International Nickel Co. (1975), [1976] 1 S.C.R. 267 (S.C.C.)
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A.C.W.S. (3d) 820
R. c. Adams, [1996] 3 S.C.R. 101 (S.C.C.)
R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.)
R. v. Beaulac, [1999] 1 S.C.R. 768 (S.C.C.)
R. v. Blais (2001), 198 D.L.R. (4th) 220 (Man. C.A.)
R. v. Blais (2003), 230 D.L.R. (4th) 22 (S.C.C.)
Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.)
R. v. Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.)
R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43 (S.C.C.)
R. v. Simon, [1985] 2 S.C.R. 387 (S.C.C.)
Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.)
R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.)
RJR-Macdonald Inc. c. Canada (Procureur général), [1995] 3 S.C.R. 199 (S.C.C.)
Reference re Legislative Authority of Parliament of Canada (1979), [1980] 1 S.C.R. 54 (S.C.C.)
Mathers, Re (1891), 7 Man. R. 434 (Man. C.A.)
Reference re s. 79(3), (4) & (7) of the Public Schools Act (Manitoba), [1993] 1 S.C.R. 839 (S.C.C.)
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.)
Sawridge Band v. R. (Fed. T.D.); affd. (Fed. C.A.)
Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629 (S.C.C.)
St. Catherine's Milling & Lumber Co. v. R. (1888), (1889) L.R. 14 App. Cas. 46 (Ontario P.C.)
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74
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A.C.W.S. (3d) 820
(S.C.C.)
Thorson v. Canada (Attorney General) (No. 2) (1974), [1975] 1 S.C.R. 138 (S.C.C.)
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.)
Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.)
Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.); affd. (Ont. C.A.)
Roberts v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.)
Wood v. Grand Valley Railway (1915), 22 D.L.R. 614 (S.C.C.)
Texts:
Hogg, Peter W., Constitutional Law of Canada, (Loose-leaf Ed.), pp. 16-4 to 16-8, 27-19 to 27-20
Laskin, Canadian Constitutional Law, (Fifth Ed., Finkelstein), pp. 68-69
Snell, Principles of Equity, (Twenty-ninth Ed., Baker and Langan), pp. 213, 294
Authorities by Canada
Cases:
A. (C.) v. C. (J.W.) (1998), 166 D.L.R. (4th) 475 (B.C. C.A.)
Reference re Alberta Bill of Rights Act, [1947] A.C. 503 (Alberta P.C.)
Angle v. Minister of National Revenue (1974), [1975] 2 S.C.R. 248 (S.C.C.)
Apotex Inc. v. Canada (Attorney General), [2000] 4 F.C. 264 (Fed. C.A.)
Apotex Inc. v. Merck & Co., 2002 FCA 210 (Fed. C.A.)
Canada (Attorney General) v. Fonseca (1888), 5 Man. R. 173 (Man. C.A.)
Inuit Tapirisat of Canada v. Canada (Attorney General), [1980] 2 S.C.R. 735 (S.C.C.)
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A.C.W.S. (3d) 820
Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.)
Bank of America National Trust & Savings Assn. v. Bank of Amador County, 28 P.2d 86, 135 Cal. App. 714 (U.S. Dist. Ct.
App. 1933)
Barlow v. Canada (2000) (Fed. T.D.)
Benoit v. Canada, 2003 FCA 236 (Fed. C.A.)
Bentley v. Peppard, 33 S.C.R. 444 (S.C.C.)
Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58 (S.C.C.)
Vancouver Island Railway, An Act Respecting, Re, [1994] 2 S.C.R. 41 (S.C.C.)
Calder v. British Columbia (Attorney General) (1973), [1973] S.C.R. 313 (S.C.C.)
Michel First Nation v. Canada (Minister of Indian Affairs & Northern Development), 2006 ABQB 1 (Alta. Q.B.)
Canadian Council of Churches v. R., [1992] 1 S.C.R. 236 (S.C.C.)
Cherokee Nation v. Georgia, 30 U.S. 1 (U.S. Ga. 1831)
Chingee v. British Columbia (Attorney General), 2005 BCCA 446 (B.C. C.A.)
Clark v. R. (Fed. C.A.)
Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3 (S.C.C.)
Canadian Civil Liberties Assn. v. Canada (Attorney General) (1990), 74 O.R. (2d) 609 (Ont. H.C.)
Daniels v. Canada (Minister of Indian Affairs & Northern Development), 2002 FCT 295 (Fed. T.D.)
Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.)
David Suzuki Foundation v. British Columbia (Attorney General), 2004 BCSC 620 (B.C. S.C.)
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.)
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A.C.W.S. (3d) 820
Dumont v. Canada (Attorney General), 48 Man. R. (2d) 4 (Man. Q.B.)
Dumont v. Canada (Attorney General) (Man. C.A.)
Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279 (S.C.C.)
G. (E.D.) v. Hammer, [2003] 2 S.C.R. 459, 2003 SCC 52 (S.C.C.)
Eastmain Band v. Robinson, [1993] 1 F.C. 501 (Fed. C.A.)
Fairford First Nation v. Canada (Attorney General) (1998), [1999] 2 F.C. 48 (Fed. T.D.)
Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607 (S.C.C.)
Federation of Saskatchewan Indians v. Canada (Attorney General), 2002 FCT 1001, [2002] F.C.J. No. 1324 (Fed. T.D.)
Canada (Attorney General) v. Fonseca (1889), 17 S.C.R. 612 (S.C.C.)
Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.)
Girardet v. Crease & Co. (B.C. S.C.)
Guerin v. R., [1984] 2 S.C.R. 335 (S.C.C.)
Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 (S.C.C.)
Hogan v. Newfoundland (Attorney General), 2000 NFCA 12 (Nfld. C.A.)
Hosmer v. Wallace, 24 L. Ed. 1130, 97 U.S. 575 (U.S. S.C. 1878)
Johnson v. McIntosh (1823), 21 U.S. 543 (U.S. Ill. 1823)
Kruger v. R. (1985), [1986] 1 F.C. 3 (Fed. C.A.)
International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574 (S.C.C.)
Larence v. Larence (1911), 21 Man. R. 145 (Man. K.B.)
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A.C.W.S. (3d) 820
Little Sisters Book & Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69 (S.C.C.)
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 (S.C.C.)
M. (M.) v. Roman Catholic Church of Canada, 160 Man. R. (2d) 265, 2001 MBCA 148 (Man. C.A.)
Manitoba Society of Seniors Inc. v. Canada (Attorney General), [1992] M.J. No. 336 (Man. C.A.),
Maurice v. Canada (Minister of Indian Affairs & Northern Development) (Fed. T.D.)
Mazzeo v. Ontario, [1996] O.J. No. 1021 (Ont. Ct. J.)
Minott v. O'Shanter Development Co., 42 O.R. (3d) 321 (Ont. C.A.)
Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911, 2001 SCC 33 (S.C.C.)
Moore v. Boyd, 39 F.2d 502, 59 App. D.C. 252 (U.S. Ct. App. D.C. 1930)
Native Council of Nova Scotia v. Canada (Attorney General), [2002] F.C.J. No. 4, 2002 FCT 6 (Fed. T.D.)
Norberg v. Wynrib, [1992] 2 S.C.R. 226 (S.C.C.)
MacNeil v. Nova Scotia (Board of Censors) (1975), [1976] 2 S.C.R. 265 (S.C.C.)
Novak v. Bond, [1999] 1 S.C.R. 808 (S.C.C.)
Society of Ontario Hydro Professional & Administrative Employees v. Ontario Hydro, [1993] 3 S.C.R. 327 (S.C.C.)
Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (S.C.C.)
Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655 (Alta. Q.B.)
Pharmaceutical Society of Great Britain v. Dickson (1968), [1970] A.C. 403 (U.K. H.L.)
Prince Edward Island (Minister of Transportation & Public Works) v. Canadian National Railway (1990), [1991] 1 F.C. 129
(Fed. C.A.)
Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [1958] 1 Q.B. 554 (Eng. C.A.)
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A.C.W.S. (3d) 820
Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 149
R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.)
R. v. Blais, [2001] M.J. No. 168, 2001 MBCA 55 (Man. C.A.)
R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44 (S.C.C.)
R. v. Howard, [1994] 2 S.C.R. 299 (S.C.C.)
Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.)
R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 (S.C.C.)
R. v. Morgentaler, [1993] 3 S.C.R. 463 (S.C.C.)
R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43 (S.C.C.)
Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.)
R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.)
Reference re Whether the Term "Indians" in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec, [1939]
S.C.R. 104 (S.C.C.)
Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 (S.C.C.)
Reference re Power of Disallowance & Power of Reservation (Canada), [1938] S.C.R. 71 (S.C.C.)
R. v. Taylor (1981), 62 C.C.C. (2d) 227 (Ont. C.A.)
Roncarelli v. Duplessis, [1959] S.C.R. 121 (S.C.C.)
Russian Commercial & Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 (U.K. H.L.)
Sena v. United States, 23 S.Ct. 596, 189 U.S. 233 (U.S. S.C. 1903)
Solosky v. Canada (1979), [1980] 1 S.C.R. 821 (S.C.C.)
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A.C.W.S. (3d) 820
B. (T.L.) v. C. (R.E.), [2000] M.J. No. 434, 2000 MBCA 83 (Man. C.A.)
Tacan v. Canada, 2005 FC 385 (F.C.)
Thorne's Hardware Ltd. v. R., [1983] 1 S.C.R. 106 (S.C.C.)
Thorson v. Canada (Attorney General) (No. 2) (1974), [1975] 1 S.C.R. 138 (S.C.C.)
Blackwater v. Plint, 2003 BCCA 671 (B.C. C.A.)
Roberts v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.)
Worcester v. Georgia, 31 U.S. 530 (U.S. Ga. 1832)
Statutes:
An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to
the Provinces of Manitoba and British Columbia, S.C. 1874, c. 21
British Columbia Terms of Union (Order of Her Majesty in Council admitting British Columbia into the Union) (May 16,
1871)
Constitution Act, 1930 (British North America Act, 1930), 20-21 George V c. 26 (U.K.)
The Court of Queen's Bench Act, C.C.S.M. c. C280, section 34
Newfoundland Act (British North America Act, 1949), 12-13 George VI, c. 22 (U.K.)
Prince Edward Island Terms of Union (Order of Her Majesty in Council Admitting Prince Edward Island into the Union)
(June 26, 1873)
Authorities by Manitoba
Cases:
Reference re Provincial Fisheries, [1898] A.C. 700 (Canada P.C.)
British Columbia (Attorney General) v. Canada (Attorney General) (1889), (1889) L.R. 14 App. Cas. 295 (Canada P.C.)
Barber v. Proudfoot, [1889] Western Law Times 144
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A.C.W.S. (3d) 820
Barrett v. Winnipeg (City), [1892] A.C. 445 (Manitoba P.C.)
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.)
Vancouver Island Railway, An Act Respecting, Re, [1994] 2 S.C.R. 41 (S.C.C.)
Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (Manitoba P.C.)
Calgary & Edmonton Land Co. v. Alberta (Attorney General) (1911), 45 S.C.R. 170 (S.C.C.)
Canadian National Transportation Ltd. v. Canada (Attorney General), [1983] 2 S.C.R. 206 (S.C.C.)
Canadian Council of Churches v. R., [1992] 1 S.C.R. 236 (S.C.C.)
Chingee v. British Columbia (Attorney General), 2005 BCCA 446 (B.C. C.A.), leave to appeal denied (S.C.C.)
Parsons v. Citizens' Insurance Co. (1881), [1881-85] All E.R. Rep. 1179 (Ontario P.C.)
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.)
Edwards v. Canada (Attorney General) (1929), [1930] A.C. 124 (Canada P.C.)
Hardy v. Desjarlais (1892), 8 Man. R. 550 (Man. C.A.)
Brophy v. Manitoba (Attorney General) (1894), 22 S.C.R. 577 (S.C.C.)
Kennett Estate v. Manitoba (Attorney General) (1998), 129 Man. R. (2d) 244 (Man. C.A.)
Kitkatla Band v. British Columbia (Minister of Small Business, Tourism & Culture), [2002] 2 S.C.R. 146, 2002 SCC 31
(S.C.C.)
Law Society (British Columbia) v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67 (S.C.C.)
Ardoch Algonquin First Nation & Allies v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37 (S.C.C.)
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 (S.C.C.)
Mahe v. Alberta, [1990] 1 S.C.R. 342 (S.C.C.)
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A.C.W.S. (3d) 820
McNeil v. Nova Scotia (Board of Censors), [1978] 2 S.C.R. 662 (S.C.C.)
O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2 (S.C.C.)
Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746, 2001 SCC 85 (S.C.C.)
Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995] 2 S.C.R. 97 (S.C.C.)
Prince Edward Island (Minister of Transportation & Public Works) v. Canadian National Railway (1990), [1991] 1 F.C. 129
(Fed. C.A.)
R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44 (S.C.C.)
Marshall v. Canada, [1999] 3 S.C.R. 456 (S.C.C.)
R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43 (S.C.C.) (headnote only)
Reference re Whether the Term "Indians" in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec, [1939]
S.C.R. 104 (S.C.C.)
Mathers, Re (1891), 7 Man. R. 434 (Man. C.A.)
Reference re Canada Assistance Plan (Canada), [1991] 2 S.C.R. 525 (S.C.C.)
Reference re Legislative Authority of Parliament of Canada (1979), [1980] 1 S.C.R. 54 (S.C.C.)
Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486 (S.C.C.)
R. v. Campbell, [1997] 3 S.C.R. 3 (S.C.C.)
Same-Sex Marriage, Re, [2004] 3 S.C.R. 698, 2004 SCC 79 (S.C.C.)
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (S.C.C.)
Reference re Firearms Act (Canada), [2000] 1 S.C.R. 783 (S.C.C.)
Robinson v. Sutherland (1893), 9 Man. R. 199 (Man. Q.B.)
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A.C.W.S. (3d) 820
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13 (S.C.C.)
Siemens v. Manitoba (Attorney General) (2002), [2003] 1 S.C.R. 6 (S.C.C.)
Sinclair v. Mulligan (1886), 3 Man. R. 481 (Man. Q.B.)
Smith v. Vermillion Hills (Rural Municipality No. 195) (1914), 49 S.C.R. 563 (S.C.C.)
Smith v. Vermillion Hills (Rural Municipality No. 195), [1916] 2 A.C. 569 (Saskatchewan P.C.)
Southern Alberta Land Co. v. McLean (Rural Municipality) (1916), 53 S.C.R. 151 (S.C.C.)
St. Catherine's Milling & Lumber Co. v. R. (1888), (1889) L.R. 14 App. Cas. 46 (Ontario P.C.)
Sutherland v. Thibeaudeau, Queen's Bench, March 28, 1879; Provincial Archives of Manitoba, File 55, Aisle B, Bay 15,
Shelf 5, Box, 5, Temp. Box 1
Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.)
Ward v. Canada (Attorney General), [2002] 1 S.C.R. 569, 2002 SCC 17 (S.C.C.)
Wells v. Newfoundland, [1999] 3 S.C.R. 199 (S.C.C.)
Roberts v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.)
Secondary Sources:
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)
A. Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (Calgary: Fifth House, 1991)
(excerpt)
M.P. Furmston, Cheshire, Fifoot and Furmston's law of contract, 14th ed. (London: Butterworths, 2001) (excerpt)
N. Finkelstein, ed., Laskin's Canadian Constitutional Law, 5th ed. (Toronto: Carswell, 1986) (excerpt)
P.W. Hogg, Constitutional Law of Canada, 4th ed. (looseleaf) (Toronto: Carswell, 1997) (excerpt)
G. Mew, The Law of Limitations, 2nd ed. (Markam: Butterworths, 2004)
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A.C.W.S. (3d) 820
D.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
Other Authorities
Cases:
Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (Manitoba P.C.)
Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (Ont. C.A.)
Morgan v. Prince Edward Island (Attorney General) (1975), [1976] 2 S.C.R. 349 (S.C.C.)
Papaschase Indian Band No. 136 v. Canada (Attorney General), 2004 ABQB 655 (Alta. Q.B.)
R. v. Campbell, [1997] 3 S.C.R. 3 (S.C.C.)
Reference re Whether the Term "Indians" in s. 91(24) of the B.N.A. Act, 1867, includes Eskimo Inhabitants of Quebec, [1939]
S.C.R. 104 (S.C.C.)
Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816, 2002 SCC 54 (S.C.C.)
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13 (S.C.C.)
Stoney Band v. R., 2005 FCA 15 (F.C.A.)
Labrador Métis Nation v. Newfoundland & Labrador (Minister of Transportation & Works), 2006 NLTD 119, 258 Nfld. &
P.E.I.R. 257 (N.L. T.D.)
Walter v. Alberta (Attorney General), [1969] S.C.R. 383 (S.C.C.)
Federal Statutes:
Dominion Lands Act, S.C. 1872, c.23, sec. 108
An Act to remove doubts as to the construction of section 31 of the Act 33 Victoria, Chapter 3, and to amend section 108 of
the Dominion Lands Act, S.C. 1873, c.38
An Act respecting the Appropriation of Certain Dominion Lands in Manitoba, S.C. 1874, c.20
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A.C.W.S. (3d) 820
An Act to amend "An Act respecting the appropriation of certain Lands in Manitoba", S.C. 1875, c.52
An Act respecting Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c.53
An Act to explain and amend the Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1879, c.32
An Act for the final Settlement of Claims to Lands in Manitoba by Occupancy under the Manitoba Act, S.C. 1880, c.7
An Act to extend the Limitation of Time for the Final Settlement of Claims in Manitoba by Occupancy, S.C. 1884, c.26
An Act respecting the Revised Statutes of Canada, R.S.C. 1886, c.4
Statutes of Manitoba:
The Half-Breed Land Grant Protection Act, S.M. 1873, c. 44 (37 Victoria)
An Act to Amend c. 46[FN286] Vict. 37, entitled The Half-Breed Land Grant Protection Act, S.M. 1875, c. 37 (Victoria)
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 (40 Victoria)
An Act to authorize the Consolidation of the General Statutes of the Province of Manitoba, S.M. 1878, c. 2 (41 Victoria)
An Act Respecting Infants and their Estates, S.M. 1878, c. 7 (41 Victoria)
An Act to Enable Certain Children of Half-Breeds Heads of Family to Convey Their Land, S.M. 1878, c. 20 (41 Victoria)
An Act to Amend the Act entitled: An Act to Enable Certain Children of Half-Breed Heads of Families to Convey Their Land,
S.M. 1879, c. 11 (42 Victoria)
An Act to Amend the Act entitled: An Act Respecting Infants and their Estates, S.M. 1879, c. 27 (43 Victoria)
An Act Respecting the Consolidated Statutes of Manitoba, S.M. 1879, c. 9 (42 Victoria)
An Act Respecting Half-Breed Lands, C.S.M. 1880, c. 42
An Act to Amend Certain of the Acts forming parts of the Consolidated Statutes of Manitoba, C.S.M. 1880-1881, c. 11, ss.
61-62
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A.C.W.S. (3d) 820
An Act Respecting Half-Breed Lands and Quieting Certain Titles Thereto, S.M. 1881, c. 19 (44 Victoria)
An Act to Explain Certain Portions of the Half-Breed Lands Act[FN287] , S.M. 1883, c. 29
An Act to Explain and amend Chapter Eleven of 44 Victoria (3 rd Session), S.M. 1883, c. 10 (46 & 47 Victoria)
An Act Concerning Decrees and Orders on the Equity Side of the Court of Queen's Bench, Manitoba, S.M. 1884, c. 8 (47
Victoria)
An Act to Amend c. 42 of the Consolidated Statutes of Manitoba, Being an Act Respecting Half-Breed Lands, S.M. 1884, c.
24 (47 Victoria)
An Act to Vest Securities Held for Half-Breed Infants in the Treasurer of this Province, S.M. 1884, c. 25 (47 Victoria)
An Act Relating to the Titles of Half-Breed Lands, S.M. 1885, c. 30 (48 Victoria)
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 (48 Victoria)
An Act to Amend Chapter 34, 84 Victoria, S.M. 1886, c. 43 (49 Victoria)
An Act to Amend Cap. 30, 48 Victoria, S.M. 1888, c. 25 (51 Victoria)
An Act Respecting Lands Granted to the Children of Half Breeds Heads of Families under "The Manitoba Act", S.M. 1892, c.
67 (55 Victoria)
C.S.M. 1880 — Schedule A — Acts Repealed
FN1 Exhibit 14
FN2 Exhibit 16
FN3 Exhibit 18
FN4 Exhibit 19
FN5 Exhibit 35
FN6 Exhibit 36
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A.C.W.S. (3d) 820
FN7 Exhibit 44
FN8 Exhibit 16
FN9 Exhibit 1-0005
FN10 Exhibit 1-0274
FN11 Exhibit 1-0329
FN12 Exhibit 1-0330
FN13 Exhibit 1-0332
FN14 Exhibit 1-0344
FN15 Exhibit 1-0339
FN16 Exhibit 1-0365
FN17 Exhibit 1-0372
FN18 Exhibit 1-0386
FN19 Exhibit 1-0394
FN20 Exhibit 1-0424
FN21 Exhibit 1-0431
FN22 Exhibit 1-0005
FN23 Exhibits 1-0436 and 1-0477
FN24 Exhibit 1-0467
FN25 Exhibit 1-0005, page 140
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A.C.W.S. (3d) 820
FN26 Exhibit 1-0436, pages 96 and 97
FN27 Exhibit 1-0436, page 103
FN28 Exhibit 1-0467, page 1319
FN29 Exhibit 1-0467, page 1446
FN30 Exhibit 1-0005, page 143
FN31 Exhibit 1-0468
FN32 Exhibit 1-0467, page 1302
FN33 Exhibit 1-0467, page 1303
FN34 Exhibit 1-0467, page 1309
FN35 Exhibit 1-0467, page 1311
FN36 Exhibit 1-0467, pages 1329 and 1330
FN37 Exhibit 1-0472
FN38 Exhibit 1-0473
FN39 Exhibit 1-0005, page 147
FN40 Exhibit 1-0467, page 1359
FN41 Exhibit 1-0005, page 147
FN42 Exhibit 1-0467, page 1389
FN43 Exhibit 1-0005, pages 147 and 148
FN44 Exhibit 1-0467, page 1446
FN45 Exhibit 1-0486
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A.C.W.S. (3d) 820
FN46 Exhibit 1-0493
FN47 Exhibit 1-0005, page 154
FN48 Exhibit 1-0494
FN49 Exhibit 1-0499
FN50 Exhibit 1-0005, page 156
FN51 Exhibit 1-0509
FN52 Exhibit 1-0512
FN53 Exhibit 1-0518
FN54 Exhibit 1-0519
FN55 Exhibit 1-0553, pages 4 to 7
FN56 Exhibit 1-0553, page 16
FN57 Exhibit 1-0541
FN58 Exhibit 1-0546
FN59 Exhibit 1-0548, a duplicate at Exhibit 1-0547
FN60 Exhibit 1-0557
FN61 Exhibit 1-0608
FN62 Exhibit 1-0620
FN63 Exhibit 1-0622
FN64 Exhibit 1-0620
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A.C.W.S. (3d) 820
FN65 Exhibit 1-0633
FN66 Exhibit 1-0658
FN67 Exhibit 1-0660
FN68 Exhibit 1-0664
FN69 Exhibit 1-0670
FN70 Exhibit 1-0680
FN71 Exhibit 1-0687
FN72 Exhibit 1-0802
FN73 Exhibit 1-0690
FN74 Exhibit 1-0695
FN75 Exhibit 1-0696
FN76 Exhibit 1-0701
FN77 Exhibit 1-0727
FN78 Exhibit 1-0730
FN79 Exhibit 1-0733
FN80 Exhibit 1-0750
FN81 Exhibit 1-0751
FN82 Exhibit 1-0755
FN83 Exhibit 1-0859
FN84 Exhibit 1-0899
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A.C.W.S. (3d) 820
FN85 Exhibit 1-0904
FN86 Exhibit 1-1678
FN87 Exhibit 1-0843
FN88 Exhibit 1-0955
FN89 Exhibit 1-0910
FN90 Both telegrams are contained in Exhibit 1-0930
FN91 Exhibit 1-0936
FN92 Exhibit 1-0953
FN93 Exhibit 1-0959
FN94 Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043
FN95 Exhibit 1-1058
FN96 Exhibit 1-1067
FN97 Exhibit 1-1075
FN98 Exhibit 1-1171
FN99 Exhibit 1-1188
FN100 Exhibit 1-1192
FN101 Exhibit 1-1200
FN102 Exhibit 1-1212
FN103 Exhibit 1-1220
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A.C.W.S. (3d) 820
FN104 Exhibit 1-1233
FN105 Exhibit 1-1243
FN106 Exhibit 1-1261
FN107 Exhibit 1-1333
FN108 Exhibit 1-1334
FN109 Exhibit 1-1416
FN110 Exhibit 1-1668
FN111 Exhibit 1-1613
FN112 Exhibit 1-1655
FN113 Exhibit 1-1662
FN114 Exhibit 1-1678, page 3113
FN115 Exhibit 1-0346
FN116 Exhibit 1-0347
FN117 Exhibit 1-0372
FN118 Exhibit 1-0446
FN119 Exhibit 1-0499
FN120 Exhibit 1-0749
FN121 Exhibit 1-0751
FN122 Exhibit 1-0755
FN123 Exhibit 1-0873
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A.C.W.S. (3d) 820
FN124 Exhibit 1-903
FN125 Exhibit 1-0922
FN126 Exhibit 1-0922
FN127 Exhibit 1-0924
FN128 Exhibit 1-0926
FN129 Exhibit 1-0965
FN130 Exhibit 1-0970
FN131 Exhibit 1-1000
FN132 Exhibit 1-1052
FN133 Exhibit 1-1053
FN134 Exhibit 1-0873
FN135 Exhibit 1-1063
FN136 Exhibit 1-1166
FN137 Exhibit 1-1177
FN138 Exhibit 1-1202
FN139 Exhibit 1-1204
FN140 Exhibit 1-1214
FN141 Exhibit 1-1216
FN142 Exhibit 1-1276
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A.C.W.S. (3d) 820
FN143 Exhibit 1-1286
FN144 Exhibit 1-1287
FN145 Exhibit 1-1311
FN146 Exhibit 1-1312
FN147 Exhibit 1-1320
FN148 Exhibit 1-1341
FN149 Exhibit 1-1346
FN150 Exhibit 1-1349
FN151 Exhibit 1-1399
FN152 Exhibit 1-1441
FN153 Exhibit 1-1442
FN154 Exhibit 1-1447
FN155 Exhibit 1-1452
FN156 Exhibit 1-1485
FN157 Exhibit 1-1488
FN158 Exhibit 1-1489
FN159 Exhibit 1-1558
FN160 Exhibit 1-1581
FN161 Exhibit 1-1585
FN162 Exhibit 1-1608
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A.C.W.S. (3d) 820
FN163 Exhibit 1-1818
FN164 Exhibit 1-1886
FN165 Exhibit 1-1896
FN166 Exhibit 18, page 7
FN167 Exhibit 1-0557
FN168 Exhibit 1-0687
FN169 Exhibit 1-0841
FN170 Exhibit 1-0834
FN171 Exhibit 1-0904
FN172 Exhibit 1-0929
FN173 Exhibit 9
FN174 Exhibit 10
FN175 Exhibit 11
FN176 Exhibit 1-2037
FN177 Exhibits 1-2040, 1-2041, 1-2049, 1-2050 and 1-2051
FN178 Exhibits 1-2040 and 1-2041
FN179 Exhibit 1-2049
FN180 Exhibit 1-2050
FN181 Exhibit 1-2051
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A.C.W.S. (3d) 820
FN182 Exhibit 1-0386, page 71
FN183 Exhibit 1-0386, page 72
FN184 Exhibit 1-0386, pages 73 to 77
FN185 Exhibit 1-0467, page 1322
FN186 Exhibit 1-0467, page 1311
FN187 Exhibit 1-0467, page 1358
FN188 Exhibit 1-0467, page 1389
FN189 Exhibit 1-0462
FN190 Exhibit 1-0005, page 143
FN191 Exhibit 1-0468
FN192 Exhibit 1-0005, page 155
FN193 Exhibit 1-0500
FN194 Exhibit 1-0516
FN195 Exhibit 1-0547
FN196 Exhibit 1-0344
FN197 Exhibit 1-0394
FN198 Exhibit 1-0422
FN199 Exhibit 1-0431
FN200 Exhibit 1-0386, pages 40 and 41
FN201 Exhibit 1-0372
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A.C.W.S. (3d) 820
FN202 Exhibit 1-1678, page 3113
FN203 Exhibit 1-0346
FN204 Exhibit 1-0347
FN205 Exhibit 1-0372
FN206 Exhibit 1-0446
FN207 Exhibits 1-1034, 1-1039 to 1-1041 and 1-1043
FN208 Exhibit 1-1220
FN209 Exhibit 1-1255
FN210 Exhibit 1-1257, page 1
FN211 Exhibit 1-1952
FN212 Exhibit 1-0608
FN213 Exhibit 1-1755
FN214 Exhibit 2
FN215 Exhibit 1-0636
FN216 Exhibit 1-0608
FN217 Exhibit 1-0859
FN218 Exhibit 1-0875
FN219 Exhibit 1-0718
FN220 Exhibit 1-1000
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A.C.W.S. (3d) 820
FN221 Exhibit 1-1052
FN222 Exhibit 1-1711
FN223 Exhibit 1-1171
FN224 Exhibit 1-0259
FN225 Exhibit 1-0687
FN226 Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043
FN227 Exhibit 1-1243
FN228 Exhibit 44
FN229 Exhibit 1-0818
FN230 Exhibit 1-0548
FN231 Exhibit 1-0859
FN232 Exhibit 1-0005, page 140
FN233 Exhibit 1-0620
FN234 Exhibit 1-0620
FN235 Exhibit 1-0680
FN236 Exhibit 1-0687
FN237 Exhibit 1-0633
FN238 Exhibits 1-0727 and 1-0733
FN239 Exhibit 1-0668
FN240 Exhibit 1-0868
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A.C.W.S. (3d) 820
FN241 Exhibit 25
FN242 Exhibit 25
FN243 Exhibit 2, Tab 8
FN244 Exhibit 2, Tab 8, and Exhibit 1-1684
FN245 Exhibit 1-1682
FN246 Exhibit 2, Tab 16
FN247 Exhibit 1-0052
FN248 Exhibit 2, Tab 16
FN249 Exhibit 1-0053
FN250 Exhibit 1-1532
FN251 Exhibit 18, page 78
FN252 Exhibit 36, page 20
FN253 Exhibit 1-0922
FN254 Exhibit 1-1166
FN255 Exhibit 18, page 131
FN256 Exhibit 1-1204
FN257 Exhibit 1-1276
FN258 Exhibit 18, page 132
FN259 Exhibit 1-1320
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FN260 Exhibit 1-1327
FN261 Exhibit 1-1399
FN262 Exhibit 1-1581
FN263 Exhibit 1-0841
FN264 Exhibit 18, page 158
FN265 Exhibit 1-0467, page 1303
FN266 Exhibit 35, Appendix 4
FN267 Exhibit 36, Table 3
FN268 Exhibit 1-1489
FN269 Exhibit 1-0841
FN270 Exhibit 1-0904
FN271 Exhibit 1-0929
FN272 Exhibit 1-0243, page 4, clauses X and XI
FN273 Exhibit 1-0956
FN274 Exhibit 1-0963
FN275 Exhibit 18, page 150
FN276 Transcript, volume 17, pages 44 to 45
FN277 Exhibit 1-0978
FN278 Exhibit 1-0548
FN279 Exhibit 1-0690
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FN280 Exhibit 18, page 158
FN281 Exhibit 18, page 159
FN282 Exhibit 1-1096
FN283 Exhibit 1-1166
FN284 Exhibit 1-1312
FN285 Exhibit 1-0963
FN286 should be chapter 44. This is a typo in original statute
FN287 see: C.S.M. 1889, c. 42
END OF DOCUMENT
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