Manitoba Métis – Legal win #177

For the second time in a week, Louis Riel and the Manitoba Métis made the national news – both times written up by Supreme Court judges.

Retired Justice Iacobucci’s report on jury representation had this to say:

The Métis leader, Louis Riel, was charged with high treason and convicted by a jury of six English and Scottish Protestants after only 30 minutes of deliberations. Riel was sentenced to death by hanging. (pg 21)

A week later, a clear majority of six Supreme Court judges alerted Canadians to the fact that the Métis’ moment had finally arrived:

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… (MMF v. Canada 2013 SCC 14 para. 140)

These back-to-back judicial pronouncements explain why Métis strategists headed right to Riel’s gravesite in order to present him with the Supreme Court’s ruling:

“I want to place this decision at his gravestone and show our great respect for the man that gave us life, and at the end of the day, vindication is there for him”. (David Chartrand MMF President)

In terms of judicial outcomes: the first 6 judges that had ruled in the lower court judgments had all given the Manitoba Métis the ‘thumbs down’; that is, until 6 of the 8 Supreme Court of Canada judges gave them the ‘thumbs up’. Such a dramatic judicial reversal shows how important the top court has become in deciding key native constitutional challenges. It also shows how brilliantly strategic the Métis strategists were in pushing forward until they won the judicial declaration they were seeking:

All that need be said (and all that is sought in the declaration) is that the central promise the Métis obtained from the Crown in order to prevent their future marginalization – the transfer of lands to the Métis children – was not carried out with diligence, as required by the honour of the Crown. (para. 151)

The Manitoba Métis have now won a huge ‘honour of the Crown’ ruling that can be added to the trilogy of Supreme Court rulings on this key aboriginal law subject:

  1. Haida and Taku respecting aboriginal rights;
  2. Mikisew respecting treaty rights;
  3. Beckman respecting modern day land claims;
  4. and now MMF on Métis land rights.

Is there any other area of the law lacking clarification in so far as this key legal principle is concerned? In spite of legions of litigation lawyers constantly calling for ‘further clarification’, the answer would appear to be a resounding ‘No’!

In Resource Rulers, I expand on the forgoing themes. My research led me to a very early reference to the ‘honour of Crown’ doctrine which coincidentally can likely be found in the Hudson’s Bay Company archives (not that far from Riel’s gravesite):

You are to consider how the Indians and slaves may be best instructed in and united to the Christian religion; it being both for the honour of the Crown and of the protestant religion itself, that all persons within any of our territories, though never so remote, should be taught the knowledge of God, and be made acquainted with the mysteries of salvation. (Charles II’s Colonial Office instructions to HBC circa 1670)

Skipping forward two centuries, Canada’s purchase of Rupert’s Land from the HBC, came with another Imperial Order-in-Council caveat that ultimately set the stage for treaty making on the prairies:

Claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in dealing with aborigines. (c 1868)

With this explicit understanding, Britain exited the prairies and a brand new Canada took over. Then the Indian Act was passed in 1876 and the rest, as we say, is history!

But it’s a history that’s still being rewritten – and by Supreme Court judges no less – something the native strategists have figured out. Today’s native legal wins are replete with ‘unique anthropological, ethnographical, and demographic history of the Aboriginal entity seeking to assert them’ (quoting a recent BCCA ruling). Indeed this largely explains why the native side is winning hands down; and also why the government / corporate side can’t keep pace; relying as it typically still does on its now significantly discredited legal tool box.

In hindsight, those 6 jury members that convicted Riel now stand in apposition to the 6 supreme court judges who, 138 years later, have now put Canada in the dock (notionally) for breaching the ‘honour of the Crown’ respecting Métis land rights.

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