Metis land claim in court — based on historical documents

by Bruce Cherney (part 1 of 2) 

The long-standing dispute over Metis land claims is now being heard at the Manitoba Law Courts Building before Court of Queen’s Bench Justice Alan MacInnes. 

If successful, the claim could result in a multi-billion dollar settlement. 

What makes this case so unique is that it essentially involves putting Canadian history on trial — the Manitoba Metis Federation is using historical documents as the basis of its case.

The MMF has claimed some of Manitoba’s most valuable real estate, including all of Winnipeg, strips of land on both sides of the Red River from Selkirk to Emerson and other strips of land along both sides of the Assiniboine River from The Forks to Portage la  Prairie. 

“Since 1981, the Manitoba Metis federation on behalf of the Manitoba Metis community has been pursuing court action against Canada and Manitoba, concerning unmet promises made when the Metis negotiated Manitoba’s entry into Confederation,” said David Chartrand, the president of the MMF. 

“In 1990, the Supreme Court (of Canada) affirmed our right to seek a declaration that Canada and Manitoba had, by unconstitutional measures, undermined the rights conferred by Sections 31 and 32 of the Manitoba Act of 1870.”

The MMF is seeking a declaration from the court that over 31 federal enactments and nine by the Manitoba government, including orders-in-council and acts, were unconstitutional, thus invalid and can no longer be enforced.

To celebrate the landmark case, the MMF held a special procession to the Manitoba Law Courts Building which started at the statue of Louis Riel behind the Manitoba Legislature.

Although a significant chunk of Manitoba real estate is involved in the court case, Chartrand said the MMF is not going to take away land or homes from Manitobans. Instead, it is seeking a package of monetary redress, land and a declaration that Metis rights were infringed upon.

It is expected that the case will be before the courts for at least three months. But, that won’t be the end of the case, since it is expected that the land claim will eventually be decided  by the Supreme Court of Canada and  could take another decade for the claim to wind its way to the highest court in the land.

Earlier, Chartrand had said that “the governments of Canada and Manitoba have done everything in their power to prevent this case from being heard ... Are  they frightened that the world will see  the truth of how unjust our government  has been to the Metis people.” 

The statement of claim alleges the  government did not live up to its  promise, made in 1870 under the Manitoba Act, for the Metis to have first choice of land before the arrival of settlers and an additional 1.4-million acres  for their children. 

“None of these things were done.  The Metis didn’t get first choice and the  best land went to settlers,” earlier said Thomas Berger, a former B.C. Supreme Court justice, who is representing the MMF. 

Chartrand said a settlement will give  the Metis economic and social power. “The Metis will be counted and given the respect we deserve.” 

The land claim was first made in 1981 by former Manitoba lieutenant-governor Yvon Dumont on behalf of the Metis. The federal government opposed the claim and in 1990 the Manitoba Court of Appeal decided the claim could not proceed. After the Appeal Court decision was overturned in 1993, the MMF was again free to proceed. 

It has taken the MMF years to gather 60 volumes of 750 handwritten documents that detail the history of the Metis uprising under Louis Riel in 1869-70, the creation of the provisional government and letters from Canada’s first Prime Minister John A. Macdonald and his Quebec lieutenant, MP George-Etienne Cartier, which reputedly promised the land to the Metis. 

“As so often occurs in such cases, the  truth probably lies somewhere between the two extremes of the litigants,” wrote Manitoba historian J.M. Bumsted in his book The Red  River Rebellion on the court battle between government and the Metis. 

The question of land ceded to the Metis is embroiled in their long history in  Manitoba and the battle for power that  arose just prior to and after the creation of the new province. The most decisive role in ensuring inclusion of Metis land claims in the Manitoba Act belongs to Riel. But, the actual awarding  of land is steeped in the murky behind-the-scenes dealings, a changing local  demographics caused by an influx of  settlers from Ontario (a trickle when they first came in 1857, according to then local resident Alexander Begg, but a  rush when Manitoba became a  province), outright bigotry, the Metis’ desire  to be free from the constraints of a  sedentary life, and the lust for land by an  emerging business and social elite. 

When he fled Fort Garry for St. Boniface as troops from Eastern Canada approached, Riel had it in his mind that the Metis would thrive in the new province of Manitoba. 

“No matter what happens now, the rights of the Metis are assured by the  Manitoba Bill, it is what I wanted,” he  told Bishop Tache in St. Boniface that  day. 

Of course, he was wrong. Any rights won for the Metis and the French language in the Manitoba Act of 1870 were soon eroded and two  decades later abolished outright. 

The simple fact is that a hostile population of recent settlers from Ontario ensured that history would  be rewritten to their own benefit. While the Ontario settlers formed but  a tiny portion of the new province’s  population in 1870 and the Metis were by far in the majority, the easterners had one advantage — power. It was power gained by stealth and the backing of a predominantly Ontarian militia bent on the destruction of Riel and his followers in revenge for the execution of Thomas  Scott. 

While Riel and the provisional government negotiated the entry of Manitoba into Confederation with Ottawa,  the “might” of the Ontario settlers and  their backers led to usurpation of this  role and the claim in subsequent annals  relating the events of 1869-70 that they  had been the guiding force behind  provincehood. 

It was the first successful propaganda war in Canada’s then three-year-old existence. And, it was also a war of words that could have just as easily been won  by the Metis if not for one ill-advised mistake in judgement by Riel — the execution of Thomas Scott on March 4, 1870. 

The Metis rule of Manitoba is now described by historians as a peaceful occupation which had the moral support of much of the English-speaking and French-speaking local population. The one exception was the Canadian Party made up of Ontarians led by Dr. John Christian Schultz. 

Throughout the rule of the provisional government, this Canadian Party was more of an irritation than an effective force. The Canadians’ goal was to overthrow the provisional government, take over control of the Red River Settlement and then hand it over to the  Canadian government which would  then be expected to be eternally grateful and award them sole access to the riches of the North-West. 

The Ontarians at first failed miserably to attain their goals, embarking on a series of comic-opera stabs at power easily thwarted by the provisional government. Most of the Canadians were either imprisoned or fled to Ontario to solicit support for their cause. 

Begg said in his diary of the events of  1869-70 that the actions of the Canadians “only succeeded in alienating the (Hudson’s Bay) Company and the authorities of the settlement without winning any noticeable support.” 

Sympathy was not quickly given to their camp in the eastern provinces, either. Indeed, George Denison, a member of the Canadian Party, recalled in 1909 that until news of Scott’s death made its way eastward, “it had been difficult to excite any interest in the fact that a number of Canadians had been thrown in prison. By denouncing the murder of Scott (it was) possible to arouse the indignation of the people, and foment public opinion that would force the government to send up an armed expedition to restore order.” 

Schultz and his followers appeared at  numerous public meetings, calling for  the arrest of Riel and the Metis leadership and their execution. One poster advertising a meeting in the village of Blyth, Ontario on April 20, 1870 called for “A rope for the murderer Riel!” 

In Toronto, mayor S.B. Harman told  5,000 at a rally attended by Schultz and his self-described “refugees” that the “gallant man (Scott) who stood up for British supremacy in Red River ... would  live in history.” 

The indignation of Protestant Ontarians was so aroused that the Ontario government was able to put up a $5,000 reward for the capture of Riel. 

And when three delegates were sent  east by the provisional government to  negotiate the Red River Settlement’s  entry into Confederation, two were arrested not once, but twice, under the authority of the Ontario government. Cooler heads in the  Canadian government negotiated their  release after being chastised by the British Colonial Office, which wanted a peaceful conclusion to the Red River crisis.

After their release, Abbe Joseph-Noel Richot, Judge John Black and Alfred Scott were then able to negotiate the terms of entry into Confederation with prime minister John A. Macdonald and Quebec cabinet minister George-Etienne Cartier. 

Scott should have been merely seen as a nuisance best ignored. Riel could have just as easily pardoned Scott as he had pardoned Charles Boulton who had likewise been threatened with execution. 

All the good work Riel had achieved  to provide favourable terms for Manitoba’s entry into Confederation and his own personal safety were compromised by this error in judgement.

The Manitoba Act was passed in the House of Commons, given Royal Assent on May 12, 1870 and took effect on June 15. The Canadian government, which had asked the British to delay the transfer of £300,000 ($1.5 million) to the Hudson’s Bay Company for the purchase of the HBC lands in the North-West until June 23, 1870, to allow for a resolution of the crisis, then sent 350 British regulars and 800 Canadian militia west to oversee the transfer and ensure peace in the settlement. 

The arrival of Wolseley and his  troops in the new province on August 24, 1870, was the beginning of a new phase in Manitoba’s history — one that saw the Metis abruptly lose recognition of their role in the creation of Manitoba and control of governing passed to settlers from Ontario who enjoyed the support of most citizens and politicians in Eastern Canada. 

The duality of a French-speaking and English-speaking government and institutions would fall to English-only status under the weight of  this massive immigration.

The Manitoba Liberal on May 18, 1872, said, of the immigrants coming to Manitoba, fully 19/20ths “are and will be from” Ontario. 

At the time of Wolseley’s arrival on “an errand of peace,” a census of the population of the postage-stamp province of Manitoba (28,500 square kilometres) showed there were 5,700 Metis, 4,000 English half-breeds and just 1,500 whites. 

Wolseley and the British regulars  stayed only briefly in Manitoba, quickly  leaving and ceding effective control of  the situation to the militia under the direction of Schultz. Lieutenant-Governor  Adams Archibald, sent to Manitoba by Ottawa to set up government institutions, conceded that the militia was a detriment to peace and that the police force he had employed was ineffective  in reining in the militia. 

“It would be an immense relief to the authorities if the Ontario Battalion was out of the province,” wrote the new  American consul James Wickes Taylor  to Washington. “The officers are evidently in fear of the men.” 

(Next time: Speculation in Metis land scrip.)