December 13, 2011, I marched to the steps of the Supreme Court of Canada with a column of Métis leaders, elders, and other interested individuals. We soon gathered in the inner chamber of the Court. The day was the culmination of a decades-long quest for justice by the Métis people, spearheaded by the Manitoba Métis Federation (“the MMF”). My own involvement in the case was minor, and came at a late stage. I had the privilege of assisting in the research and drafting of the factum of the intervenor Métis National Council. Our arguments on the honour of the Crown formed the basis for the majority ruling in the MMF’s favour.
The MMF sought a declaration that the Crown had breached its constitutional and fiduciary duties to the Métis people in its administration of section 31 of the Manitoba Act, which provided for 1.4 million acres of land for Métis children as part of the bargain that peaceably brought Manitoba into Confederation. The promise of land for Métis children, designed to ensure they could preserve their culture and presence in their homeland before the influx of English-speaking settlers, once made, was beset by years of delay and bungling that defeated the purpose of the provision. The onslaught of foreign settlers, often hostile, eventually drove many Métis from their homeland.
The MMF now sought a declaration as leverage to force the Crown to negotiate compensation for the historic fiasco, beginning the claim in 1981, with the case now to be heard before the Supreme Court 30 years later, on December 13, 2011.
There was a savage dispute within the Supreme Court itself, which split 6-2. In the judgment, both the majority (represented by McLachlin and Karakatsanis) and the dissent (Rothstein and Moldaver) tear strips off each other, in the kind of polite and respectful way only Canadian Supreme Court justices can. The intense disagreement within the court probably accounts for the long wait for the judgment to be handed down.
Breach of fiduciary duty by the Crown was the centrepiece of the MMF’s arguments. Curiously, the Supreme Court dismissed these arguments (in brief, for lack of a demonstrated communal Aboriginal interest) and the majority found for the appellants for reasons not argued (except by the intervenors).
The honour of the Crown turned out to be basis for the majority’s decision, in which arguably it extended the doctrine, much to the dismay of the dissent. The majority held that the honour of the Crown requires the Crown, in the context of implementing a constitutional obligation to an Aboriginal people, to interpret the obligation broadly and act diligently to fulfill it. The Crown failed to fulfill this obligation and was found guilty of a “persistent pattern of inattention” that defeated the purpose of the provision.
Both the majority and the dissent agreed that the Manitoba Métis Federation was entitled to standing via public interest, something that had been denied in the lower courts. This sets an important precedent, as it has long been Crown policy to treat Métis strictly as individuals, without recognition of the organizations that represent them collectively.
Limitation periods have long been a tremendous barrier to Aboriginal claims. Historical Crown immunity, combined with the historical disadvantages Aboriginal peoples have faced in bringing litigation, have made it nearly impossible to rectify many historical wrongs. Yet today the Crown frequently relies on limitation periods (and laches) in denying and defending against Aboriginal claims. In MMF the majority concedes that there are unique considerations in Aboriginal cases and reconciliation must figure into the analysis. This, the dissent vigorously opposed, calling such an approach “novel” (possibly the ultimate judicial insult).
The Supreme Court was asked for and gave only a declaration. A declaration does not bind the Crown, though there is an expectation that the Crown will respond. In this case, the declaration only signals that there is a basis for negotiations. The negotiations themselves will likely take years, but this is a crucial first step.
