Who’s Who at The Forks?

It’s timely that the Canadian Human Rights Museum is opening soon at the corner of Portage and Main – near The Forks – directly across the river from Riel’s tomb. That’s because the human rights of the three founding communities of the Province of Manitoba (Indian, Métis, Settler) are likewise front and center today; on account of the Supreme Court of Canada’s recent clarifications re their intertwined histories.

Here’s a sampling of how these founding communities have been profiled by the country’s top-court:

a) Indians as wards in need of protection;
b) Métis as proud and separate and in need of a head start;
c) Settlers in need of industry and peace…

A decade ago, the Supreme Court of Canada distinguished Métis from Indians thusly:

20     The courts below found, and the record confirms, that the Manitoba Métis were not considered wards of the Crown … Nowhere is there any suggestion [that] the Métis, as a people, sought or were regarded as being in need of this kind of protection.  On the contrary, the evidence demonstrates the Métis to be independent and proud of their identity separate and apart from the Indians. (R v Blais SCC 2003)

In keeping with this stark legal dichotomy, the basis for the Crown’s land dealings vis-à-vis both aboriginal groups was likewise based on these same ‘fundamentally different assumptions’:

34     This perceived difference between the Crown’s obligations to Indians and its relationship with the Métis was reflected in separate arrangements for the distribution of land.  Different legal and political regimes governed the conclusion of Indian treaties and the allocation of Métis scrip.  Indian treaties were concluded on a collective basis and entailed collective rights, whereas scrip entitled recipients to individual grants of land.  While the history of scrip speculation and devaluation is a sorry chapter in our nation’s history, this does not change the fact that scrip was based on fundamentally different assumptions about the nature and origins of the government’s relationship with scrip recipients than the assumptions underlying treaties with Indians. (R v Blais)

Here one detects the roots of that historic Métis human rights injustice that was only recently validated by the Supreme Court of Canada; in its breach of the ‘honour of the Crown’ declaration handed down in favour of the Manitoba Métis Federation:

[150]    … Canada was aware that there would be an influx of settlers and that the Métis needed to get a head start before that transpired, yet it did not work diligently to fulfill its constitutional promise to the Métis, as the honour of Crown required. The Métis did not receive the intended head start, and following the influx of settlers, they found themselves increasingly marginalized, facing discrimination and poverty … Although bad faith is neither claimed nor needed here, the appellants point to a letter written by Sir John A. Macdonald, which suggests that this marginalization may even have been desired: …

…it will require a considerable management to keep those wild people quiet. In another year the present residents will be altogether swamped by the influx of strangers who will go in with the idea of becoming industrious and peaceable settlers. (October 14, 1869, A.R., vol. VII, at p. 65)

[151]    Be that as it may, this marginalization is of evidentiary significance only, as we cannot – and need not – unravel history and determine the precise causes of the marginalization of the Métis community in Manitoba after 1870. 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. (MMF v Canada 2013)

These three quasi-legal definitions from the Supreme Court of Canada mark the high point of judiciary’s foray into identity-politics. Coincidentally they underpin the Human Rights Museum’s grand opening at ‘The Forks’. Both institutions, in their own way, stand for the overriding importance of marking this historic gateway to the west from a unique human rights perspective. To be continued…

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