VOLUME 4 Perspectives and Realities
Métis Nation land and resource rights involve a complicated mixture of history, geography, politics and law. Because the historical facts differ sharply from one area to another, the following analysis is divided into three broad geographic categories: the part of Manitoba that includes the Red River Valley and that constituted the original province created by the Manitoba Act, 1870; the remaining (chiefly prairie) areas to which the Dominion Lands Act of 1872 was applied; and the rest of the Métis Nation homeland. A final section deals with resource use rights.
In all three areas, the legal starting point is the same: the Aboriginal title that Métis shared with all Aboriginal peoples. The reason for examining each area separately is that, until very recently, only two attempts to extinguish Métis Aboriginal title on a Métis-specific basis were ever made. These were made, on somewhat different terms, under the Manitoba Act, and the Dominion Lands Act. Because of their differences, those attempts must be considered independently. Then we must look at the situation of Métis Nation groups whose Aboriginal rights have never been extinguished.
Although our analysis of Métis rights must begin with law, it cannot end there. The discussion of Métis land rights in each geographic area therefore concludes with observations, as important as the legal ones, about the moral and political entitlement of the Métis Nation to a land base upon which their future as a people can be founded.
The first attempt by the government of Canada to deal formally with Métis rights occurred in the Manitoba Act, 1870.1 This was a statute of the Parliament of Canada that was given retroactive constitutional status by the British Parliament in the Constitution Act, 1871. The implementation of the Manitoba Act, so far as Métis rights were concerned, was a national disgrace. Maladministration was rampant, ranging from negligence to outright fraud. While there are differences of opinion about the legal consequences of that maladministration, few detached observers would doubt that the descendants of the Red River Métis are owed a huge moral debt. To assess the legal and moral/political ramifications, we must carefully examine the historical record.
Thomas Flanagan maintains in Metis Lands In Manitoba, a book based on research commissioned by the government of Canada, that the federal government generally fulfilled, and in some ways overfulfilled, the land provisions of the Manitoba Act and that Métis families profited from a veritable cascade of benefits.2 In our opinion, much of the evidence marshalled in Flanagans book, far from supporting those conclusions, lends strong support to the opposite view, advanced by D.N. Sprague, Paul Chartrand and others, that promises made to the Métis population of Manitoba were broken in many important respects.
Flanagans book adopts a bottom-line approach. Acknowledging that many errors and other irregularities were committed in the course of implementing sections 31 and 32 of the Manitoba Act, he concludes that at the end of the day, the government of Canada acted with generosity towards the Métis (p. 228).
Because justice delayed is justice denied and because justice denied requires redress, an effective assessment of promise fulfilment must consider more than the bottom line of how much was done over a period of time. The assessment must also evaluate how procrastination and maladministration may have eroded or nullified the promises before they were kept. Flanagans assessment pays little heed to such issues. Delay and its impact, as well as fraud and deception, are major elements of the story of western Métis rights and are discussed below. It will be seen that even from a bottom-line perspective, Thomas Flanagans assessment of the thoroughness with which Canada kept its promises to Métis people is open to serious question.
Land for children
Flanagan states that the 1.4 million acres promised by section 31 for children of Métis heads of families were eventually all distributed, although it took from 1877 until 1900 to complete the process and more than 90 per cent of the land was diverted by sales of entitlement to persons other than Métis children (pp. 86, 121). Because the number of persons entitled to claim under section 31 was miscalculated, however, the size of each grant (240 acres) exhausted the 1.4 million acres before the claims of all Métis children could be accommodated. The result was that 993 claims were dealt with by issuing scrip worth $240 each instead of by direct land grants (pp. 92-93). For at least those 993 surplus claims, then, Flanagan was clearly wrong to conclude that the government complied exactly with the wording of section 31 of the Manitoba Act (p. 94).
Allotment of childrens grants
The Red River and Canadian negotiators agreed verbally that a committee whose members would be persons nominated locally, working under the supervision of the Manitoba legislature, would select the land from which the Métis childrens grants would be made, and that the local people would also be in charge of the allotment of those grants.3 When this promise was not reflected in the Manitoba Act, Abbé Ritchot and his colleagues complained and were assured by John A. Macdonald and George-Étienne Cartier that it would be the same thing in practice. Cartiers letter of May 1870, while not referring explicitly to these matters, was obviously designed, with other verbal undertakings, to reassure Ritchot about them and to encourage him to convey his satisfaction to the people of Red River. He did so, expecting the governments promises to be kept.
In actuality, however, the allocation of childrens land grants under section 31 were determined, albeit with occasional local input, primarily by federal authorities. The constitutionally entrenched requirement of section 31 that the lieutenant governor play a personal role in the allocation was ignored. The distribution of allotments resulting from that broken promise created great dissatisfaction among the beneficiaries of the land grant. The most fundamental reason for dissatisfaction was that the grants were distributed in a way that resulted in a dispersal of Métis people throughout Manitoba. A homogenous Métis homeland would have been possible if the grants had been located closer to existing Métis river lots.
Instead of selecting the lands in places where the families might be expected to survive in community, the government sponsored a scheme of dispersal. Instead of securing the families in locations selected by them according to local custom, and according to the promises that accompanied acceptance of the federal union, the government confirmed the usurpation by immigrant settlers from the established portions of Canada, who brought with them the political power to suppress the provinces original inhabitants.4
Because its stated purpose was to benefit the families of the Métis, section 31 contained implied promises that the land granted would be appropriate to the social and economic circumstances (reasonably fit to benefit the Métis) and suitable for the establishment of a permanent community (since families included future generations). The distribution did not observe the promise of either appropriateness or permanence; the consequence was to destroy the possibility of preserving a vibrant and cohesive Métis people on a coherent land base.
Scrip for parents
The extent to which section 31 of the Manitoba Act was intended to benefit and extinguish the Indian title of Métis heads of family has been a matter of controversy over the years. The language of section 31, read literally, appears to call for land grants only to children. But the statement that the 1.4 million acre allotment was for the benefit of the families of the half-breed residents, coupled with the fact that parents are both members of families and children of their own parents, has led some to contend that section 31 was a guarantee of land benefits for all Métis residents.5 Such evidence as exists concerning discussions between Canadian and Red River negotiators in 1870 may support the narrower interpretation as far as the grants were concerned.6 The language used was far from clear, but the long-term benefit of all Manitoba Métis was certainly agreed to be the object of the grants.
The significance of excluding Métis parents from the ambit of section 31 (assuming that to have been the intent) was double-edged. If it denied them land grant benefits, it also left their Aboriginal title unextinguished. It was perhaps for that reason that the government decided, after much vacillation, that although Métis parents should not share in the 1.4 million acres, they should be issued scrip for 160 acres each toward extinguishment of their Indian title. A statute to that effect was enacted in 1874.7 At the same time, however, an identical issue of scrip was authorized for long-time non-Métis settlers and their children in recognition of their contribution to the development of the area.8 Explanations offered for the grants to non-Aboriginal settlers seldom claimed for them a unique contribution but rather that they were, in the words of John A. Macdonald, as much pioneers of that country as the half-breeds. That grant therefore appears either to have deprived the Métis parents of an equivalent reward for their equivalent role as pioneers of that country or, if the Métis parents grant was intended to be such a reward, to have given them no compensation for extinguishment of their Indian title.
As far as grants to Manitoba Métis parents are concerned, then, the bottom line of promise fulfilment is that
if they were entitled to share in section 31 benefits, the substitution of scrip for land and of 160 acres for 240 acres violated the Manitoba Act; and
the fact that they received nothing more than other (non-Métis) long-time settlers either cheated them of an equivalent settlement award or meant that the extinguishment of their Indian title was without compensation.
Thomas Flanagan asserts that the government did fulfil its obligations under section 32 (p. 157). D.N. Sprague strongly disagrees.9 Regardless of whose interpretation one accepts, it is clear that the government of Canada did not altogether ignore its obligation under section 32 of the Manitoba Act to confirm the title of settlers (chiefly Métis because of their numerical predominance) who had occupancy or peaceable possession of Manitoba land before Manitoba was created. Nor, however, did it fulfil that promise completely.
Flanagan states (pp. 186-187) that within the inner parishes of the settlement belt at the junction of the Red and Assiniboine rivers, the areas closest to Upper Fort Garry and Winnipeg, 96.5 per cent of the river lots (1,562 out of 1,619) were eventually made the subject of patents issued under section 32 of the Manitoba Act. Flanagan admits (pp. 188-189) that in the outer parishes of the settlement belt areas further from the fork of the Red and Assiniboine and more heavily populated by Métis and in other parts of the province, the section 32 patent rate was considerably lower (41 per cent and 54.8 per cent respectively) and that it was dramatically lower in some of the remoter areas (St. Malo, 27 per cent; Rat River, 7 per cent). He contends, however, that even in those parts of the province, patents were issued for most of the lots that had been settled substantially and that the rejected claims related to lots that had only been staked and not otherwise occupied. Flanagan says: The very fact that patents were issued under the Manitoba Act demonstrates that the Dominion government recognized the occupancy of those who lived on the land prior to 1870. Furthermore, he writes (pp. 187, 189): In all parishes Manitoba Act patents were granted where people really lived.
From these statistics, Flanagan concludes that Sprague is wrong to attribute the large post-1870 Métis migration westward from Manitoba to Métis dispossession or their inability to obtain land patents (pp. 189-190). Flanagans own figures show, however, that very few patents were issued until after the Métis migration was well under way. The first patents were not issued until 1874, and only two were granted that year (p. 167). Although the number increased sharply the following year, only 336 titles (12 per cent of the eventual total) were confirmed before 1877, by which time, according to Sprague, the flow of emigration had become remarkable (p. 139). Section 32 patents continued to be issued at a roughly constant annual rate until 1886, the final one being granted in 1929 (p. 167). Flanagan admits that many, perhaps even most of the patents he has documented were not made to the original occupants because the occupants claims to title had been sold and they had moved away (p. 187). He does not speculate about the motivation of those who left.
Nor does Flanagan dispute Spragues evidence that many individuals lost all or part of their claims to lands they occupied because of unjustifiably restrictive bureaucratic interpretations of peaceable possession, subsequently softened, but not before many claims had been denied or abandoned. Those definitions were especially damaging to staked claims made by Métis (and others) in outlying areas. Abbé Ritchot later reminded Macdonald that he had displayed a map of these areas and explained the staking process to Macdonald and Cartier during the 1870 negotiations. In July 1870, Ritchot, armed with the verbal assurances and the reinforcing letter of George-Étienne Cartier, personally led a Métis expedition to Rat River to stake claims before the land transfer to Canada took place. This action demonstrated that he firmly believed, on the basis of what he had been promised in Ottawa, that such claims would be recognized under section 32(4) of the Manitoba Act. By his words and example, others were encouraged to do likewise. A high proportion of those last-minute claims were rejected by federal officials, who took the position that substantial improvements had to be made to the land to satisfy the requirement of peaceable possession. Although Flanagan describes the staked claims problem as a marginal issue (p. 157), he affirms that it was surrounded by great controversy, which was examined eventually by a royal commission (p. 177). Overall, while patents were ultimately issued for the great bulk of river lots that had been occupied before 1870, the promise of section 32 was never completely kept, even in the fullness of time.
Hay and common lands
The controversy over hay lands, which usually lay contiguous to the rear of settled river lots, was rooted in long-standing patterns of land use that dominion authorities ignored, despite their recognition by section 32(5) of the Manitoba Act, until considerable harm had been done to the rights of Métis and other old settlers.
Flanagans book devotes considerable attention to the question of hay lands and common lands. Because the problem was not Métis-specific (although more Métis than others were affected, because of their greater numbers), we will not dwell on it at length. We do, however, wish to make one observation about Flanagans conclusion that the governments commutation of the rights of hay and common produced reasonable satisfaction among the old settlers (p. 219). While acknowledging the absence of evidence for that statement, he suggests that it is plausible to draw such a conclusion from the fact that by 1886 the melancholy chorus of earlier years had been
reduced to scattered complaints (p. 220). In the face of Flanagans own evidence about homestead claims pre-empting hay lands claims and about substitutions of scrip for land, it is difficult to credit his conclusion that the hay question had been settled satisfactorily by 1886 simply because the volume of complaints had subsided. The world was a very different place for the western Métis in 1886, after the Northwest rebellion, than it had been in 1870. The migration from Manitoba was largely over, and Métis dreams of a western homeland lay shattered in the ruins of Batoche.
To look only at promise fulfilment, as Flanagan does, without regard to the effect of the passage of time, is to ignore an important aspect of Métis rights the fact that many of the promises were spoiled by delay, like meat left out in the prairie sun. The accompanying time line, based on the dates provided in Flanagans book, shows how long it took for the federal government to fulfil its Manitoba Act promises (Figure 5C.1).
Except for parental scrip, the bulk of which was issued in 1876, six years after the promises were first made, it took 11 years before even half the commitments made in 1870 were met. For the first six years, absolutely nothing of value was provided to the Métis except confirmation of a handful of the least controvertible river lot titles. For the first decade, there was also uncertainty about the likelihood of promise fulfilment because of bewildering shifts in government policy.
During that long period of inaction and confusion, the demographic composition of Manitoba changed radically. The tidal wave of non-Aboriginal immigration, against which the Manitoba Act guarantees had been intended to provide economic and cultural protection, arrived before the safeguards were in place and overwhelmed the Métis long before these safeguards were even half implemented. The Métis population of Manitoba, which constituted a majority of almost 80 per cent in 1870, became a minority within a few years. The loss of majority status was in part a result of Métis migration westward. According to Sprague, more than 4,000 Métis left Manitoba: migration took place slowly between 1871 and 1876, rapidly between 1877 and 1880, and in a rush between 1881 and 1884.10
The importance of the Métis exodus has possibly been exaggerated by some commentators. A majority of the Métis population had remained in Manitoba, after all, and even if no one had left, Métis people would soon have been outnumbered by newcomers. The migration was nonetheless a major demographic and cultural event. Sprague argues that it is compelling evidence of the harsh impact on the western Métis of delays and non-fulfilment of Manitoba Act promises.
Flanagan rejects any linkage between the exodus and broken promises: The evidence is overwhelming that Spragues theory about Métis emigration that they left Manitoba because they were dispossessed of their lands is simply wrong (p. 189). Instead, he suggests, the departing Métis were drawn by a plains economy that had been moving westward since the 1850s (p. 190). What he fails to consider is the possibility that Métis who left were drawn to the plains economy because more than a decade of governmental dithering and denials had destroyed their confidence in their own economic or cultural survival in Manitoba.
Flanagans bottom-line approach leads him to some curious conclusions. He claims, for example, that delay in implementation of childrens grants was not wholly prejudicial, in that it amounted to a compulsory savings program for the Métis children (p. 225). At another point, after acknowledging that perfect justice was not done, he writes that in the end, almost everyone got something (p. 179). The latter comment illuminates Flanagans other conclusions and demonstrates the gulf that separates his understanding of the purpose of the Manitoba Act guarantees from that of most Métis people. For the Métis, sections 31 and 32 of the Manitoba Act and the attendant verbal promises were not measures to ensure that almost everyone would eventually get something. They were designed to assure the economic and cultural survival of a unique people. They recognized that Métis people were about to experience severe economic disruption and that their homeland would soon be inundated by people of an alien culture. Even if the government of Canada had ultimately complied with every one of the guarantees, the inexcusable delay ensured that compliance was too late to serve the guarantees intended purpose.
Incomplete and delayed compliance with promises was only part of the Manitoba Act tragedy.11 Métis land entitlements and scrip quickly became the subject of speculative trading by land agents, many of whom were woefully short of scruples. The lengthy delays, far from creating the compulsory savings program Flanagan imagines, provided a strong incentive to sell out early and cheap.12 Instances of sharp dealing and fraud were common, although the full extent of such practices will never be known. Children of tender years were particularly vulnerable targets, and constitutionally questionable legislation dissolving or weakening normal legal protections for children aided and abetted their exploitation.
While most of the fraudulent and predatory practices by which individual Métis were cheated of their constitutional legacy were perpetrated by private operators, there are documented instances of bribery and fraud even on the part of government employees. One of the most notorious involved a key department of the interior official named Robert Lang, who extracted bribes from Manitoba Act claimants in return for expediting the claims process. Langs activities were known to government authorities, including Prime Minister Macdonald, as early as April 1883, but he was allowed to remain on the job until early 1885. His salary continued until April 1885, by which time he had fled, with his ill-gotten assets, to the United States. He was not formally dismissed until 1887, and he was never prosecuted or sued for his activities.13
The government of Canada owed a fiduciary duty to the Manitoba Métis as an Aboriginal people. While the government itself may not have been involved directly in commercial exploitation of their Manitoba Act benefits, it was aware of much of the exploitation and, as a fiduciary, should have taken effective steps to stop it.
A 1991 study of the implementation of section 31 of the Manitoba Act found the government of Canada to have breached its constitutional obligations in fourteen respects.14 Merely listing the subject headings of that analysis indicates the sweeping nature of the indictment:
2. Failure to Attach Settlement Conditions
3. Failure to Enact Laws to Protect Section 31 Interests
4. Failure to Exercise a Crown Discretion in Each Case
5. Failure to Maintain Crown Supervision Over the Intended Regulated Scheme
6. Failure to Provide Lands by Giving Scrip as a Substitute
7. Failure to Select the Lands Ahead of Incoming Settlement
8. Failure to Consider the Choice of the Beneficiaries in Respect of Land Selection
9. Failure to Distribute Lands Fit for the Purposes of Section 31
10.Failure to Give Lands to All the Children of Heads of Families
11.Failure to Provide a Benefit to Heads of Families
12.Failure to Grant the Lands for Purposes of Settlement Only
13.Setting a Time Limit for Section 31 Claims
14.Appropriating for the Purposes of the Dominion a Portion of the Lands Selected for Section 31 Purposes.
This long list of governmental transgressions does not even attempt to address the breaches that occurred in relation to section 32 of the Manitoba Act.
The promises made to the Métis population of Manitoba in return for their concurrence in the creation of the new province in 1870 were violated or ignored (or their implementation delayed) on a massive scale. If the unfair treatment of Métis rights in the Manitoba Act, the Dominion Lands Act, and the Constitution Act, 1930 were ever the subject of a play, it might appropriately be called a tragedy in three acts. It is certainly no exaggeration to describe it as a national disgrace.
The land allotments called for by section 31 of the Manitoba Act were made towards the extinguishment of the Indian Title. The process by which that provision was implemented was so flawed, so drawn out, and so contaminated by sharp practice and fraud that its basic purpose to give the Métis people of Manitoba a satisfactory land base upon which their community and culture could flourish was frustrated. Although ultimately only the Supreme Court of Canada can determine the legal significance of that fact, a strong case can be made for the view that the process nullified the extinguishment of Indian title contemplated by section 31. If that view is correct, the remedy is obvious: the government of Canada has a legal obligation to begin land settlement negotiations as soon as possible with representatives of the descendants of the Métis people of that area.
It can also be argued persuasively that the governments informed tolerance of the widespread chicanery that accompanied implementation of section 31, along with its own incomplete and delayed compliance with section 31, constituted serious breaches of its fiduciary duty. Fiduciary breaches may also have occurred in the implementation of section 32, which, although designed to protect all old settlers, was expected to be of importance in preserving the Métis community in the Red River Valley. The government of Canada had a fiduciary duty in the administration of section 32 to the extent that it had an impact on the Métis population of Manitoba. That impact was considerable. If there were violations of fiduciary duty in the implementation of section 32, the remedial ramifications are again clear. Breaches of the Crowns fiduciary duty to protect Métis interests would create an entitlement to compensation, and if the breaches were as serious as they seem to have been, appropriate amount of the compensation would be high.
This assessment of legal issues is not authoritative. Only the Supreme Court of Canada can settle them conclusively. Important as they are to understanding the Métis Nations historical situation, the answers to these legal questions are outside the scope of the Commission, which is to recommend measures by which the grave historical wrongs suffered by Aboriginal peoples, including Métis, can be put right. Whatever the ultimate judicial solutions to the legal puzzles we have examined, there is no room for reasonable doubt on the moral and political plane: the Métis residents of Manitoba did not receive anything resembling what they were promised in 1870 as compensation for the extinguishment of their Indian title, and the government of Canada fell inexcusably short of its moral obligation to treat Manitoba Métis equitably. Regardless of the legal case, the government of Canada is morally obliged to enter negotiations with Métis representatives to correct this injustice.
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