by Trevor Greyeyes
Despite losing the first test of their Metis Land Claims case, Manitoba Metis Federation (MMF) President David Chartrand plans to take the case to Canada’s top court to see Riel’s dream of the Metis taking their rightful place in the country.
“We’re filing our appeal in early February,” said Chartrand. “We hope to be in the appeals court by the fall.”
At issue in the Metis Land Claims case, the Canadian government has acknowledged could potentially be worth billions, is that the Metis were denied their negotiated land settlements following the Manitoba Act.
The case centers on the transfer of 1.4 million acres of land to 10,000 Metis residents in the newly minted province of Manitoba in 1870.
However, for the purposes of the lawsuit only 15 families are named.
The Manitoba Act came about after a negotiated settlement between the Metis, led by Louis Riel, and the Canadian government. That period has come to be known as the Red River Rebellion (although, most scholars now call it Resistance to more accurately reflect an early chapter of Canadian history).
The Metis allege that the English-speaking governor William McDougall was opposed to the French-speaking residents having choice real estate. He sent in surveyors to divide the land up according to the square township system used in Ontario ignoring clearly established boundaries of existing homesteads.
Also, it is alleged that McDougall allowed speculators to buy up land on existing Metis homesteads.
Chartrand had been warned that lower court decisions usually go against the aboriginal claimants by his advisers prior to the decision by Justice Alan MacInnes, however, he was still surprised at the reasoning behind the decision.
Justice MacInnes, said Chartrand, had used much of the testimony of Thomas Flanagan in his decision about the matter. MacInnes is his decision wrote that although the Metis lived in communal or collectives known at the time as parishes that the land was not held in common. He also ruled that too much time had passed between the negotiations and the lawsuit.
Flanagan is more commonly known as one of Prime Minister Stephen Harper’s principal advisers. He is a political sciences professor at the University of Calgary known for his right of centre viewpoint.
Chartrand noted that Flanagan has built a reputation and career by opposing any notion of Aboriginal rights. Flanagan purports that Canada’s Aboriginal peoples were the first immigrants who were not organized enough to qualify as a nation. Therefore, there is no obligation by the federal government to deal with Aboriginal people and their claims on a nation-to-nation basis.
It is an idea that Chartrand denies by saying the Metis Nation still exists today with many people proudly displaying the Metis symbol.
However, Chartrand remained upbeat citing the Delgamuukw case (1997) that lost in early cases before the Supreme Court of Canada made a startling judgment.
While the court did not support the land claims, it did address the issue of Aboriginal title.
Aboriginal title is different from land usage title. It acknowledges traditional uses of the land and ownership. The ruling also helped to legitimize the use of oral history.
As Chartrand explained, in the case the onus was on the plaintiffs to prove their case.
“You have to prove your history,” said Chartrand. “A lot of our history is oral but we’re lucky enough to have some self written documents.”
It seemed the bitterest pill for Chartrand to swallow was the ruling that too much time had passed since the original ruling and the filing of the land claims suit. Justice MacInnes ruled that if there was a dispute with how the land was distributed that the original Metis with the grievance in the later part of the nineteenth century should have filed a claim with the courts back then.
However, Chartrand said that Orangemen, Irish protestant immigrants supportive of British rule, at the time were camped out in front of the Land Claims Commission at the time to stop any Metis from entering.
“Clearly, MacInnes agreed with buying into the Thomas Flanagan philosophy,” said Chartrand.
The MMF hired Thomas Berger, a former BC politician and judge known for his work in Aboriginal cases, as their heavyweight for their land claims case.
For his opening statement in April 2006, Berger said the distribution of land happened seven years after the agreement and that laws were passed that made speculators buying land already claimed by the Metis that much easier.
Also, Chartrand pointed out that though the case had been launched in 1981 that much of the delay happened because the MMF has some issues to wrinkle out before going ahead with the case.
Chartrand said that he is hoping the case will make it to Canada’s top court in three years.
Bill Flamond, a retired Metis broadcaster, is hopeful the case can be resolved soon but is not too hopeful.
“I’ll be long gone before anything happens with the land claims case,” said Flamond.
However, Flamond said the case was never about getting something now but laying down something for future generations.
He remembers when the MMF first filed the case back in the early 1980’s.
Like Chartrand pointed out, Flamond said there is no idea what would happen if the MMF ultimately wins their land claims.
The MMF has already stated that it does not want the land back with some of the former Metis property accounting for some of Manitoba’s most prime real estate.
Flamond hopes to see a mixture of money and land like Manitoba’s First Nations received through various Treaty Land Entitlement agreements.
However, the future of the Metis nation is now in the hands of the Metis themselves who are pressing for the recognition of a host of rights. Though recognized as an Aboriginal group in the 1982 Canadian Constitution, Metis rights have never actually been spelled out or the fiduciary obligations of the government.
Another Metis case that made it to the Supreme Court of Canada was the Powley Decision that recognized, for the first time, that Metis people do have the right to hunt on their traditional territory.