Canada: Manitoba Metis Federation V. Canada: The Eternal Constitutional Oversight Of The Courts

Last Updated: March 21 2013
Article by Malinda Yuen

In a result that would have Louis Riel smiling in his grave, the Supreme Court of Canada has issued a decision in favour of the Métis people in Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14. The case is some 143 years in the making, arising from the rebellion lead by Riel.

The Manitoba Act, a constitutional document, had been negotiated in 1870 by the Provisional Government led by Louis Riel and the Canadian Government, then led by Sir John A. MacDonald, in order to settle the Red River Resistance.  The Manitoba Act provided that Manitoba would join confederation, and more to the point with respect to the recent litigation, it also promised to set aside 1.4 million acres of land for the children of the Red River Métis, and recognise existing landholdings (sections 31 and 32 of the Act). That land includes the entire City of Winnipeg. This provision of the Manitoba Act was crucial to the settlement: after all, the genesis of the Resistance had been the surveying of land west of the Red River for the purpose of settling the west. Unfortunately, the government of Canada botched the land distribution pursuant to the Manitoba Act, and the land was snatched up by settlers, often for a fraction of its value.

Both the Manitoba Queen's Bench and Manitoba Court of Appeal had dismissed the claim by the Manitoba Métis Federation, with the Manitoba Court of Appeal holding that, while Canada owed a fiduciary duty to the Métis people, it had not breached its fiduciary duty; that the Métis children had received more than 5,565 square feet of land, and further decided that the issue of fiduciary duty was statute barred.

The Majority Decision

The Supreme Court, in a majority decision written by Chief Justice McLachlin and Justice Karatkatsanis reversed the decision. Though the Court found the obligations enshrined in ss. 31 and 32 of the Manitoba Act did not impose a fiduciary duty on the government because neither the words of s. 31 nor the evidence establish a pre-existing communal Aboriginal interest held by the Métis; nor was a fiduciary duty established on the basis of an undertaking by the Crown.

However, the Court held that the Crown owed a duty of diligence in fulfilling its obligations under s. 31 of the Manitoba Act (at paragraph 9):

[Section] 31 of the Manitoba Act constitutes a constitutional obligation to the Métis people of Manitoba, an Aboriginal people, to provide the Métis children with allotments of land. The immediate purpose of the obligation was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis' Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. a solemn constitutional obligation to the Métis people of Manitoba aimed at reconciling their Aboriginal interests with sovereignty, it engaged the honour of the Crown. This required the government to act with diligence in pursuit of the fulfillment of the promise.

The Government of Canada failed in its duty of diligence, as the Court concluded "a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better" (at para. 128).

In an approach driven by the Metis Federation's claim for no remedy beyond a declaration in its favour, the majority of the Court found that the decision was not statute barred, as the Court reasoned:

What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied. The unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import. The courts are the guardians of the Constitution and ... cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 72.

Had the Métis Federation sought a more substantial remedy, the Court implied, it may have been statute barred. The Métis Federation hopes the declaration will open the door to negotiations with the federal government.

The Minority Decision

The minority decision would not have found a duty of diligence on the Crown, in part because of the ambiguity in the term "solemn obligation" from which that duty arises and also because the issue had not been addressed in the Courts below. Interestingly, the minority posited that no submissions of any substance were made as to what duty the honour of the Crown should have engaged on the facts beyond a fiduciary duty, nor were there any submissions on a duty of diligent implementation. Finally, the minority would have found the claim statute barred, stating (at para. 215):

The majority has attempted to circumvent the application of these limitations periods by characterizing the claim as a fundamental constitutional grievance arising from an "ongoing rift in the national fabric" (para. 140). With respect, there is no legal or principled basis for this exception to validly enacted limitations statutes adopted by the legislature.

Certainly, the decision will have wide reaching consequences not only for Metis across the country, but also for constitutional law. The consequence of eternal oversight of matters of constitutional law on the part of the courts will certainly do nothing to lessen the perception of judicial intervention. On the other hand, given the primacy of the constitution the oversight by the courts could prove to be an invaluable safeguard.

An interesting footnote is that this case had originally been argued at trial and before the Court of Appeal by now Justice Rob Dewar of the Manitoba Court of Queen's Bench on behalf of the Attorney General of Canada; the Métis Federation was represented at all levels by former Justice Thomas Berger.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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