METIS LAND RIGHTS IN CANADA Joseph Eliot Magnet(1

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Professor .J. E. Magnet R.S.C., B.A., LL.B., LL.M., Ph.D., Faculty of Law, University of Ottawa Dr. Magnet is one of the lawyers representing the Metis on the MMF Land claims Case

CONTENTS 1. INTRODUCTION 2. SOURCES OF METIS LAND RIGHTS 2.1 Inherent aboriginal rights 2.2 Royal Proclamation of 1763 2.3 Rupert's Land and North-Western Territory Order 2.4 Manitoba Act 2.5 The Dominion Lands Act 2.6 Geographical range of s. 31 2.7 Are the Metis "Indians"? 2.7.1 Within meaning of the Rubert's Land and North-Western Territory Order 2.7.2 Within the meaning of s. 91(24) 3. NATURE OF METIS RIGHTS 3.1 Principles of interpretation 3.1.1 Broad and purposive, in historical context 3.1.2 Liberally construed in favour of aboriginal group 3.2 Right to be dealt with consistent with past Crown practices 3.3 Right to be dealt with equitably 4. THE CROWN'S DUTY 4.1 Dealings to preserve the honour of the Crown 4.2 The Crown as fiduciary 4.3 Positive constitutional obligations 5. THE SYSTEM ESTABLISHED TO GRANT METIS LANDS 5.1 In Manitoba 5.1.1 Introduction 5.1.2 Legislative chronology -- Manitoba 5.2 In the North-West Territories 5.2.1 Introduction 5.2.2 Extinguishment of Metis aboriginal title in lands ceded by Indians 5.2.3 Government knowledge of the failure of the scrip system in the North-West 5.2.4 Legislative chronology -- North-West Territories 6. EXTINGUISHMENT OF METIS ABORIGINAL TITLE 6.1 Theoretical capability to extinguish Metis aboriginal title 6.1.1 Through cession (surrender) 6.1.2 Through statutory taking 6.1.3 Through conquest 6.2 Actual capability to extinguish Metis aboriginal title 6.2.1 Implication of the government in the frauds and abuses 1

6.2.2 The Crown's breach of its fiduciary obligations 6.2.3 The Crown's breach of its positive constitutional obligations 6.3 Conclusion with respect to extinguishment of Metis aboriginal title 7. REMEDIES 1. INTRODUCTION The last two decades have witnessed a growing awareness that the historical and legal claims of the Aboriginal peoples of Canada were not finally settled in the 19th century. Some progress has been made in recent years in coming to terms with outstanding claims of Canada's Inuit and Indians, although much remains to be done. There has not yet been a parallel recognition that important claims of the Metis People of Canada remain outstanding at this period of our national life. In part, this is because Metis history has heretofore been confused and obscure. The Metis are, in many ways, a forgotten people, although why this is so is not readily understandable.(2) Metis were scattered throughout Canada's North-West for at least a generation before 1818.(3) By the 1860's, the Metis had become a cohesive political community capable of asserting its political and legal rights. The Metis were the most numerous and dominant group in what would soon become the new province of Manitoba. In recent years, prominent Canadian historians including Gerhard Ens, Thomas Flanagan, and Douglas Sprague have retold Metis history. Although the historical inferences differ markedly on certain crucial issues, there has been growing agreement on the facts and basic documents, and contention about the issues is beginning to narrow.(4) Primary disagreement today revolves around whether the Canadian and Manitoban government acted in good faith in carrying out the terms of the Manitoba Act, whether Prime Minister John A. Macdonald purposely deceived the Metis leaders as to Canada's intentions with respect to Canada-Metis Agreement, to what extent there were frauds and deceptions in the administration of the Metis land grants, and whether, if such frauds occurred, they serve to nullify any extinguishment of Metis rights that may have taken place. These issues are loaded with legal significance. In the late 1860's the Metis feared for their future in the midst of the changes associated with the imminent Canadian acquisition of the North-West. Being numerous, and holding the balance of power in the Red River settlement, organized Metis political and military forces resisted Canada's acquisition of the North-West Territories by the Red River rebellion of 1869-70. A provisional government led by Louis Riel was established. The provisional government sent three representatives to Ottawa to negotiate entry into Canada upon terms which would protect Metis interests. Riel wanted Manitoba to enter Confederation with the status of a province, as opposed to a federally-administered territory, and he wanted the new province to control Crown lands. The result of the negotiations was the Manitoba Act, 1870. The major political demand of the Metis provisional government, that of provincial status, was agreed to. The Metis concern about land rights was recognized, but not in the form requested. Rather than bringing Manitoba into Confederation on the same terms as the existing provinces, the

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federal government retained control over Crown lands. However, under sections 31 and 32 of the Act, the Canadian government was obligated to confirm possession and titles of land the Metis held upon the transfer of the province to Canada, and to grant an additional 1.4 million acres of land to the children of the old Metis settlers. A comprehensive account of the process of the implementation and administration of the Metis land grant in Manitoba is told by Douglas Sprague in his book, Canada and the Métis: 1869-1885.(5) Professor Sprague is submitting a report to the Royal Commission on Aboriginal Peoples contemporaneous with the present study. Professor Sprague's Report elaborates and expands on his earlier history. His report provides an introductory account of the Metis land grant process as it was carried out in the remainder of the North-West Territories. Professor Sprague's thesis is that the Manitoba Act accorded the Metis people "fair treatment ... in principle," but that the principle of fair treatment was "vitiated in administration;" (p. 1). Professor Sprague's history recounts that Canada's administration of the Manitoba Act resulted in a situation where most of the original [Metis] population had dispersed; and most of the minority who remained had become a landless proletariat in their own homeland; (p. 8). Professor Sprague's thesis is that Canada intended this result. He argues that Canada fraudulently administered the Manitoba Act to bring it about. Canadian authority was launched with a reign of terror to displace the [Metis] provisional government and to intimidate the general population into abject subjugation or migration ... [Canada engaged in] a process of formal and informal discouragement kept up until Canada broke the collective will of the Red River settlers to preserve their community ... the government [of Canada] breached the terms of the Manitoba Act, deliberately, repeatedly ... (p. 9) Historical work relating to Metis land rights in the North-West is much less advanced than scholarship about Red-River. Professor Sprague's account of administration of Metis claims in the North-West lacks the detail and fullness of his Manitoba Metis studies, and his thesis with respect to this territory is somewhat opaque. Professor Sprague does state that Metis entitlements in the North-West "were fulfilled only partially;" (p. 1). He illustrates this thesis by an instructive narrative of Metis land rights administration at Norway house. It may be that future historical scholarship will generalize Professor Sprague's description of the process at Norway House to the administration of Metis land claims throughout the North-West. Should that happen, it would seem that Professor Sprague's thesis that Canada fraudulently administered Metis land claims in Manitoba would apply equally to Canadian administration of Metis land claims in the North-West. A second account of the process of administration of the Metis Land grant has been prepared for the Royal Commission by Frank Tough and Lea Dorion titled "A Study of Treaty 10 and Treaty 5 Adhesion Scrip." Tough and Dorion explore the market for scrip in

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Northern communities. The findings are of interest. Tough and Dorion found that land scrip distributed to Metis in the Northern Communities could be located only on lands far away from the Metis grantees who received scrip. Tough and Dorion found that Metis grantees did not settle or legally occupy these lands (to which scrip entitled them). With few exceptions, these lands where not patented in the names of the Metis grantees; (p. 28). The researchers were able to infer that the distance between Metis communities and available lands meant that the Metis grantees would not be able to sell to interested buyers directly. The major scrip middlemen played the role of obtaining scrip certificates and organizing the system of distribution. However, in the first exchange -- between Metis grantees and scrip middlemen -- a free market did not exist. In Northern Manitoba in particular, a syndicate was formed to absorb scrip buyers and to set a price for scrip. The unsurveyed Northern communities were distant from potential buyers, the small holder that would use the land. Therefore, only those individuals willing and able to purchase significant amounts of scrip participated… Flanagan's argument that the Metis sold their scrip rights freely in a market that functioned to harmonize the needs of buyers and sellers does not apply…; (p. 51). [In short], scrip was irrelevant to the Metis; (p. 49). Scrip conferred no real advantages on the Metis. Tough and Dorion go on to show that the system's failure to benefit the Metis was known to the government. Tough and Dorion explain how the scrip commissions were organized, how speculators travelled with the commissions, and how even the commissioners were aware that the scrip system would provide the Metis with no real benefits. For example, Tough and Dorion refer to Commissioner Seemens' observation in 1910: My experience goes to show that 9/10th of these people will not settle on the land given to them. They will realize as quickly as possible and then relapse into a state of semi-starvation and come back to the Indian Department for assistance in time of scarcity or sickness; (p. 52). Tough and Dorion conclude that "the failure of scrip was well known in the early 1900's;" (p. 52). This paper relies on the work of Professor Sprague and Professors Tough and Dorion for historical detail and the context in which the land grant schemes were administered. This paper makes no claim to independent historical scholarship or the formulation of original historical conclusions. This paper assumes that there were irregularities and frauds in administration of the Metis land granting schemes, as posited by Professors Sprague, Tough and Dorion. This paper assumes that Sprague's historical thesis that Canada intended to break up the Metis community, and Tough and Dorion's conclusion that the scrip system conferred no advantages on the Metis can be documented and proved in a

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Court of Law. This paper provides a legal opinion as to whether the Metis people retain valid and outstanding legal claims in Manitoba and in those parts of Canada formerly known as the North-West Territories.(6) In order to arrive at this opinion, this paper will analyze the fundamental nature and origins of Metis aboriginal rights and the complex legislative schemes which were enacted at the federal, and in the case of Manitoba, provincial levels to extinguish Metis aboriginal title. We will assess whether those schemes were theoretically capable of extinguishing Metis title, absent the frauds and abuses which are assumed to have occurred at that period of Canadian history. We will then analyze whether, in the factual and historical context surrounding the Manitoba and North-Western Territory land grant schemes, into which the assumed widespread frauds and abuses of the Metis must be factored, the government did in fact extinguish Metis aboriginal title. We will consider whether, by permitting and assisting in the speculation in Metis land and scrip, and in removing common law and statutory protections of the Metis children's interests, the government became implicated in the frauds and abuses. We will then consider the legal consequences of the government becoming so implicated. Finally, we will consider any outstanding obligations which Canada and Manitoba have to the Metis and suggest a remedial framework which might appropriately redress any wrongs. 2. SOURCES OF METIS LAND RIGHTS 2.1 Inherent Aboriginal Rights(7) The Metis are descended from unions of European and aboriginal peoples. Metis claim aboriginal rights through their Indian ancestry on the same basis as other native peoples: by way of their racial and social history. The Metis claim to aboriginal rights was recognized by the Crown in its dealings with the Metis throughout the nineteenth and twentieth centuries. As a report prepared by Judge W.A. MacDonald in a judicial inquiry into "The Exclusion of Halfbreeds from Treaty Lists" concluded: … whenever it became necessary or expedient to extinguish Indian rights in any specified territory, the fact that Halfbreeds also had rights by virtue of their Indian blood was invariably recognized. These rights co-existed with the rights of the Indians. It was considered advisable whenever possible to extinguish the rights of Halfbreeds and Indians by giving them compensation concurrently.(8) The doctrine of aboriginal rights is a basic principle of Canadian constitutional and common law that defines the constitutional links between the Crown and Aboriginal peoples and regulates the relationship between the two. Aboriginal rights find their source in the sovereignty exercised by Aboriginal peoples from time immemorial. A basic precept of Canadian constitutional law is that the reception of British institutions did not extinguish or obliterate all aspects of pre-existing aboriginal customary law. As such, it has been a continuous challenge for the Canadian constitutional system to incorporate those features

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of aboriginal rights which in recent times have pressed their way more vigorously onto the political agenda. The strength of aboriginal rights is reinforced by 19th century, as well as more modern, constitutional texts. The Manitoba Act and the Rupert's Land and North-Western Territory Order, which contain the terms of accession of Manitoba and the North-West Territories, are constitutional documents which appear to recognize pre-existing aboriginal rights and protect them by imposing continuing obligations on the Crown to treat with aboriginal peoples. Aboriginal rights are also protected by sections 25 and 35 of the Constitution Act, 1982. The question of aboriginal rights as applied to the Metis people has been explored by Louise Mandell in a separate Commission study. Ms. Mandell concluded that the Metis possessed aboriginal rights and title to areas of Rupert's Land and the North-West Territory traditionally used and occupied by them. The Metis had a special claim arising out of their aboriginal heritage and their use and occupation of their territory. They were one of the aboriginal peoples whose special needs and rights were considered at the time of Confederation ... When Canada assumed jurisdiction over Rupert's Land and the North-West Territory it did so under terms which imposed upon the Crown a special obligation to deal with the rights of aboriginal people in that territory ... Until these rights were dealt with in a constitutionally valid manner they continued; (p. 75). Ms. Mandell gave definition to the substance of Metis aboriginal rights by exploring the content of the Crown's duty towards aboriginal peoples generally. Ms. Mandell maintained that when Canada assumed jurisdiction over Rupert's Land it became constitutionally obliged to: 1) deal fairly and equitably with the aboriginal people; 2) respect the rights of the aboriginal people to the use and occupation of their territory; 3) obtain the consent of the aboriginal people to the use of their territory for settlement; and 4) compensate the aboriginal peoples for the use of their territory (p. 14). In Calder v. The Queen, the Supreme Court of Canada recognized aboriginal title as a legal right derived from the Indians' historic occupation and possession of their tribal lands.(9) In Guerin v. The Queen, Dickson J. (as he then was) described the nature of the Musqueam Indian Band's interest in their land as "a pre-existing legal right not created by the Royal Proclamation, by s. 18(1) of the Indian Act, or by any other executive order or legislative provision."(10) Once aboriginal title is established, it is presumed to continue until a legally recognized and constitutionally valid act of extinguishment or surrender takes place.(11) The onus is on the Crown to establish that Metis aboriginal title has been extinguished. If Metis rights were not legally and constitutionally extinguished by the Crown, they remain intact. If they remain intact, they must be existing rights. If they are "existing rights" they are of

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constitutional significance by virtue of being "recognized and affirmed" by s. 35 of the Constitution Act, 1982. 2.2 Royal Proclamation of 1763 By the Royal Proclamation of 1763,(12) Great Britain, acknowledged the pre-existing interest of the native peoples whose homelands had been "discovered". The Royal Proclamation announced a policy to protect that interest. Although, as described above, aboriginal title pre-dates the Royal Proclamation, that document is nonetheless acknowledged as one basis for recognition of aboriginal title by the Imperial authorities and their successors. The Royal Proclamation is a seminal authority which defines how aboriginal title can be surrendered. The Proclamation provides, in part: And whereas it is just and reasonable, and essential to our Interest, and the security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds… And whereas Great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the Great Prejudice of our Interests, and to the Great Dissatisfaction of the said Indians; In Order, therefore, to prevent such Irregularities for the future, and to the End that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council, strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians … The policy expressed in the Proclamation was intended to protect the Indians in their exclusive use of their lands, and to establish a formal means by which their interest might be ceded to the Crown. The Proclamation contains the following provisions: a) the Indian allies were not to be disturbed in the possession of their hunting grounds; b) the hunting grounds that had not been ceded to or purchased by the Crown were reserved for the Indians; c) no patents would issue for lands beyond the bounds of the newly created colonies; d) private individuals could not purchase reserved lands, and private persons settled on the lands must leave them; and

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e) the lands could only be purchased from the Indians by the Crown at a public meeting to be held for that purpose. It is implicit in the Proclamation that negotiation followed by purchase was to be the sole means by which aboriginal title could be surrendered to make way for settlement. A series of decisions in the early 19th century by Chief Justice Marshall of the United States Supreme Court reviews the history of British dealings with native peoples in America and articulates certain principles implicit in those dealings. These decisions provide structure and coherence to an untidy and diffuse body of customary law based on official practice and are as relevant to Canada as they are to the United States. They were cited in St. Catharine's Milling v. The Queen,(13) Calder v. The Queen(14) (both majority decisions refer to the Marshall decisions) and in Guerin v. The Queen by Dickson J. In Johnson v. McIntosh,(15) Chief Justice Marshall considered the consequences of the coming of the British Crown to the Americas. Discovery, he said, gave the discoverer the sole right of acquiring soil against all other nations. But the exclusion of other discoverers, did not extinguish the rights of the Aboriginal peoples: In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.… Marshall C.J. found that aboriginal title was a legal right that survived the British Crown's claims of sovereignty in the Royal Proclamation. In Guerin, Dickson J. stated: The Royal Proclamation of 1763 provided that no private person could purchase from the Indians any lands that the Proclamation had reserved to them, and provided further that all purchases had to be by and in the name of the Crown, in a public assembly of the Indians held by the governor or commander-in-chief of the colony in which the land in question lay. As Lord Watson pointed out in St. Catherine's Milling, supra at p. 54, this policy with respect to the sale or transfer of the Indians' interest in land has been continuously maintained by the British Crown, by the government of the colonies when they became responsible for the administration of Indian Affairs, and after 1867, by the federal government of Canada. The Royal Proclamation is the most significant point of origin of the policy of protection of aboriginal interests. The Proclamation demanded that only the Crown could acquire traditional aboriginal lands, and only upon consent of the aboriginal peoples. The

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Proclamation limited the way in which the Crown may act to extinguish aboriginal title. The Proclamation restrained the Crown from extinguishing aboriginal title unilaterally. The Proclamation has the force of a statute in Canada. At common law, instruments issued under the royal prerogative in British colonial possessions lacking representative legislative assemblies have the force of statute in these areas. Hall J. in Calder stated: This Proclamation [of 1763] was an Executive Order having the force and effect of an Act of Parliament and was described by Gwynne J. in St. Catherine's Milling case at p. 652 as the "Indian Bill of Rights": see also Campbell v. Hall. Its force as a statute is analogous to the status of the Magna Carta which has always been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly-discovered or acquired lands or territories. It follows, therefore, that the Colonial Laws Validity Act applied to make the Proclamation the law of British Columbia. That it was regarded as being the law of England is clear from the fact that when it was deemed advisable to amend it the amendment was effected by an Act of Parliament, namely, the Quebec Act of 1774.(16) The Proclamation has never been repealed. Although the Proclamation has the force of statute, it would appear that the rights it recognizes and protects cannot today be overridden by statute in the ordinary way. The rights protected by the Proclamation are "existing rights". As such, the rights are of constitutional significance by virtue of being recognized and affirmed by s. 35 of the Constitution Act, 1982. 2.3 Rupert's Land and North-Western Territory Order Following Confederation and the passing of the B.N.A. Act, 1867, arrangements for the transfer of Rupert's Land and the North-Western Territory, already contemplated by s. 146 of that Act, became finalized. Professor Sprague has chronicled how Canada's expansion westward was to be accomplished by the purchase of lands from the Hudson's Bay Company which had acquired them by Royal Charter in 1670.(17) The territories were transferred to Canada on July 15, 1870 upon termination of the Charter. The terms of the Deed of Surrender, the outcome of negotiations between the Canadian government and the Hudson's Bay Company, were approved by the Imperial government and later incorporated into the Rupert's Land and North-Western Territory Order.(18) Aboriginal rights had been considered and were recognized by the documents and enactments connected with the transfer of the territory to Canada. One of the conditions of transfer, clause 14 of the Rupert's Land and North-Western Territory Order, reads: 14. Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the Company shall be relieved of all responsibility in respect of them.

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An address to the Queen by the Senate and House of Commons of Canada, dated December 1867 and contained as Schedule A to the Order, states: That we do therefore most humbly pray that your Majesty will be graciously pleased, by and with the advice of your Most Honourable Privy Council, to unite Rupert's Land and the North-Western Territory with this Dominion, and to grant to the Parliament of Canada authority to legislate for their future welfare and good government; and we most humbly beg to express to your Majesty that we are willing to assume the duties and obligations of government and legislation as regards those territories … And furthermore, that, upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for the purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.(19) A second address to the Queen by the Senate and House of Commons of Canada, dated May 1869 and contained as Schedule B to the Order, states: That upon the transference of the territories in question to the Canadian Government it will be our duty to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer, and we authorize and empower the Governor in Council to arrange any details that may be necessary to carry out the terms and conditions of the above agreement.(20) Canada's obligations under clause 14 of the Rupert's Land and North-Western Territory Order and the attached schedules are of constitutional significance. Mr. Justice Morrow, in Re Paulette stated that they had … become part of the Canadian Constitution and could not be removed or altered except by Imperial Statute. To the extent, therefore, that the above assurances represent a recognition of Indian title or aboriginal rights, it may be that the Indians living within that part of Canada covered by the proposed caveat may have a constitutional guarantee that no other Canadian Indians have.(21) The Order imposes a positive constitutional obligation on the Canadian government to a) deal with Indian claims to compensation for lands in the territory; b) consider and settle claims in conformity with past practices of the British Crown in its dealings with aboriginal peoples; and c) settle the claims equitably. 2.4 Manitoba Act, 1870

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As noted earlier, at the time Canada acquired Rupert's Land there was a cohesive, politically-organized Metis population established at the Red River settlement. This population viewed government plans to acquire the territory with apprehension. As the Canadian government proceeded with its plans, it met resistance from the Metis who feared that they "would be all driven back from the River & their land given to others…"(22) The Metis organized an armed resistance and formed a provisional government which exercised de facto power in the territory. The federal government agreed to negotiate with representatives of Riel's provisional government for the terms of accession of the territory into Canada. The result, the Manitoba Act, 1870, was Canada's and Britain's attempt to settle with the inhabitants. Sections 31 and 32 of the Manitoba Act read: 31. And whereas it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents, it is hereby enacted that, under regulations to be from time to time made by the Governor General in Council, the LieutenantGovernor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the time of said transfer to Canada, and the same shall be granted to said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine. 32. For the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them, it is enacted as follows: (1) All grants of land in freehold made by the Hudson's Bay Company up to the eighth of March, in the year 1869, shall, if required by the owner, be confirmed by grant from the Crown. (2) All grants of estates less than freehold in land made by the Hudson's Bay Company up to the eighth day of March aforesaid, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. (3) All titles by occupancy with the sanction and under the licence and authority of the Hudson's Bay Company up to the eighth day of March aforesaid, of land in that part of the Province in which the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown. (4) All persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the Province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by the Governor in Council. (5) The Lieutenant-Governor is hereby authorized, under regulations to be made from time to time by the Governor General in Council, to make all such provisions for ascertaining and adjusting, on fair and equitable terms, the rights of Common, and rights of cutting Hay held and enjoyed by the settlers in the Province, and for the commutation of the same by grants of land from the Crown.

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One of Riel's major demands, that of provincial status, was agreed to. The District of Assiniboia, a small rectangular area of some 14,000 square miles centered on the confluence of the Red and Assiniboine Rivers, was carved out of Rupert's Land and entered Canada as the province of Manitoba. However, unlike the original four provinces, the Manitoba Act vested control of Crown lands in the federal government, as opposed to the government of the new province. Riel's representatives had asked for recognition of Metis aboriginal rights as well as confirmation of titles to their existing land holdings. The Manitoba Act granted them aboriginal and settlers rights in sections 31 and 32. Section 32 was designed to alleviate the anxieties of the people who occupied lands in the territory at the time of the transfer. By section 32, Canada agreed that it would grant to settlers, most of whom were Metis, the lands where they either had been given title from the Hudson's Bay Company, or were in peaceful occupation. Section 32(3) dealt with those who occupied lands within the twomile settlement on both sides of the Red and Assiniboine Rivers and guaranteed conversion of titles by occupancy into estates of freehold. Section 32(4) provided for a right of preemption for those who occupied lands outside the two-mile settlement belt where Indian Title had not been extinguished. Section 32(5) guaranteed the Metis essential rights in common to the haylands that lay behind the two-mile settlement belt. The Metis also treated for additional lands for their children. By section 31 of the Act, the Metis obtained a grant of 1.4 million acres of land for the children. Section 31 stated that the lands so promised were to be "towards the extinguishment of the Indian title to the lands in the Province". Section 31 purports to extinguish aboriginal title "in the Province" and this raises the question as to whether any extinguishing effect of s. 31 is limited geographically. We will return to this question shortly. Only section 31 refers to the extinguishment of aboriginal title. It is possible that this means that extinguishment would be accomplished upon the government fulfilling its obligations under that section. A second interpretation is that sections 31 and 32 can together be considered a form of "treaty". As such, extinguishment can occur only upon satisfactory performance of the government's obligations under both sections 31 and 32. Canadian law is flexible as to the kind of instrument that can be accorded treaty status. In R. v. Sioui, Lamer J. for the Court stated: In Simon this Court noted that a treaty with the Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law. … it is clear that what characterizes a treaty is the intention to create mutually binding obligations and a certain measure of solemnity. … In White and Bob, supra, Norris J.A. also discussed the nature of a treaty under s. 88 of the Indian Act. As he mentioned in the passage I have already quoted, the word "treaty" is not a term of art. It merely identifies agreements in which the "word of the white man" is given and by which the latter made certain of the Indians' cooperation.(23)

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The circumstances under which sections 31 and 32 came into force meet the conditions set out by Lamer J. in Sioui, notwithstanding that these provisions have juridical status as constitutional instruments.(24) By this "treaty", the Metis agreed to the extinguishment of their title in return for both the grant of 1.4 million acres to secure the children's rights and the grant of occupied lands to secure the Metis settlers' rights. Given that Metis apprehensions about losing their occupied lands appeared to have been inextricably bound up with the desire for recognition of their aboriginal rights, it is likely that the government's promises under sections 31 and 32, together, constituted the quid pro quo for extinguishment of Metis aboriginal title in the province. By this reasoning, a breach of the government's obligations under either s. 31 or s. 32 would work the effect of invalidating the extinguishment of Metis aboriginal title purportedly effected by the language of s. 31. The Manitoba Act, 1870 was enacted by the Parliament of Canada and confirmed by Imperial legislation. It is part of the constitution of Canada, given constitutional status by virtue of s. 6 of the Constitution Act, 1871. In A.G. Manitoba v. Forest, [1979] 2 S.C.R. 1032 the Supreme Court of Canada stated, at 1039: If … the Manitoba Act is taken by itself it must be observed that this is a federal statute, which means that, unless otherwise provided, it is subject to amendment by the Parliament that enacted it and no other. It is, however, otherwise provided in s. 6 of the British North America Act, 1871 [now the Constitution Act, 1871]. This section denies any amending power to the federal Parliament. … The Manitoba Act, 1870, is also referred to in the schedule to the Constitution Act, 1982. Section 52(2) of the Constitution Act, 1982 provides that "the Constitution of Canada includes … (b) the Acts and orders referred to in the schedule". The Manitoba Act, 1870 is a constitutional enactment which recognizes the inherent aboriginal rights possessed by the Metis and purports to extinguish those rights, at least in the original province of Manitoba, in exchange for certain undertakings by Canada. As a constitutional enactment, the Manitoba Act can only be modified by constitutional amendment or an act of the Imperial Parliament. By its terms, Canada became constitutionally obliged to implement a system to grant lands to children of Metis families and to confirm Metis and other settlers' titles in the newly acquired territory. A difficulty could be presented in Manitoba by s. 33 of the Manitoba Act which provides: 33. The Governor General in Council shall from time to time settle and appoint the mode and form of Grants of Land from the Crown, and any Order in Council for that purpose when published in the Canada Gazette shall have the same force and effect as if it were a portion of this Act. Section 33 is ambiguous. The effect of s. 33 may be to render all orders-in-council of the same force and effect as the Manitoba Act, 1870. This could mean that orders-in-council which established the scrip system have gained constitutional status in the same way that the Manitoba Act, 1870 has. However, because it is ambiguous, the principle of liberally

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construing a provision in favour of the aboriginal group would apply such that s. 33 cannot operate to the Metis' disadvantage. 2.5 The Dominion Lands Act The policy of Half-breed grants that was implemented in Manitoba under the scheme established by the Governor General in Council was extended to the North-West Territories by an 1879 amendment to the Dominion Lands Act.(25) Section 125(e) of the Dominion Lands Act, 1879 states: 125. The following powers are hereby delegated to the Governor in Council: … (e) To satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by Half-breeds resident in the North-West Territories outside the limits of Manitoba, on the fifteenth day of July, one thousand eight hundred and seventy, by granting land to such persons, to an extent, and on such terms and conditions as may be deemed expedient. The Dominion Lands Act is a federal statute. It does not have constitutional status. It would appear that s. 125(e), a series of orders-in-council and the subsequent administrative practices of the Department of the Interior were Canada's attempt to discharge its obligations to settle claims with the Indians "in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines" as required under clause 14 and the schedules of the Rupert's Land and North-Western Territory Order. Schedule B of the Order contemplated some machinery of this type.(26) 2.6 Geographical range of s. 31 It is not clear whether the Manitoba Act was meant to extinguish Metis aboriginal title in all of the newly-acquired territories, or just within the original province of Manitoba, as it existed at the time of transfer to Canada. In the usual pattern of surrender and extinguishment, the federal government treated with the leaders of a tribe of Indians to extinguish title throughout the geographic area where the tribe claimed title. Although the Metis had predominantly settled in the Red River area, there were smaller numbers of Metis throughout the North-West and the rest of Canada. If the usual pattern applied in the case of the Metis, this would mean that the federal government "treated" with the leaders of the Metis - representatives of Riel's provisional government - and by s. 31 of the Manitoba Act purported to extinguish title throughout Manitoba, the North-West Territories and the remainder of Canada where the Metis claimed title. It follows that any breach by the federal government to fulfil its obligations towards the Metis under the Manitoba Act would nullify extinguishment of Metis aboriginal title throughout the entire country as it existed at July 15, 1870, the date of transfer of Rupert's Land and the North-Western Territories to Canada, unless there exists some other act of extinguishment. A second interpretation concentrates on the words "in the province" in section 31. The fact that the Metis land grant in s. 31 was to be distributed "among the children of half-breed

14

heads of families residing in the Province at the time [of transfer to Canada]" may indicate that the extinguishment of Metis aboriginal title applied only to the geographic area encompassed by Manitoba on the date of transfer. The Federal Boundaries Extension Acts reinforce this interpretation. The boundaries of Manitoba were extended by an Act of Parliament in 1881, and then again in 1913.(27) Section 2(a) of the 1881 federal Act provided that: 2(a) All the enactments and provisions of all the Acts of the Parliament of Canada which have since the creation of the Province of Manitoba, been extended into and made to apply to the said Province, shall extend and apply to the territory by this Act added thereto … "[emphasis added.] The Manitoba Act provides: 1. On, from and after that date upon which the Queen … shall by Order in Council in that behalf, admit Rupert's Land and the North-Western Territory into the Union or Dominion of Canada, there shall be formed out of the same a Province, which shall be one of the Provinces of the Dominion, of Canada and which shall be called the Province of Manitoba, and be bounded as follows … [There follows a delimitation of the boundaries of the province]. 2. On, from and after the said day on which the Order of the Queen in Council shall take effect as aforesaid, the provisions of the Constitution Act, 1867, shall … be applicable to the Province of Manitoba in the same way and to a like extent as they apply in the several Provinces of Canada … Rupert's Land and the North-West Territory were admitted into Canada on July 15, 1870. It appears that the juridical entity of the province of Manitoba was "formed" on that date pursuant to sections 1 and 2 of the Manitoba Act. The Manitoba Act was assented to on May 12, 1870, before the formation of the province on July 15, 1870. The Manitoba Act therefore falls outside s. 2(a) of the 1881 Boundaries Extension Act. This suggests that the Manitoba Act, including sections 31 and 32, were confined to the original province of Manitoba. This reinforces the argument that section 31 purported to extinguish "Indian title" only within the small geographical confines of the original province. (A contrary argument is that all of the provisions of the Manitoba Act, including sections 31 and 32, applied by implication of necessity to the extended province of Manitoba at the time the Manitoba Act was enacted.) The wording of s. 125(e) of the Dominion Lands Act, 1879 also supports the argument that the Manitoba Act was intended to extinguish title only within the original province. Section 125(e) refers to the extinguishment of Indian title of Half-breeds residing outside Manitoba on the date of transfer, July 15, 1870. The order-in-council of March 30, 1885 which implemented s. 125(e) specifically refers to claims of half-breeds "resident in the NorthWest Territories outside the limits of Manitoba previous to the 15th day of July, one thousand eight hundred and seventy".(28) It is a principle of statutory interpretation that, although it is not permissible to interpret a statute by reference to what has been done in

15

subsequent statutes, sometimes light may be thrown upon the meaning of an Act by taking into consideration enactments contained in subsequent Acts.(29) The terms of the Dominion Lands Act may be read as reflecting a Parliamentary understanding that Metis title outside the original province of Manitoba had not been extinguished, and therefore required a specific extinguishing section for the remainder of the North-West Territories in the Dominion Lands Act. Depending on which of the previous interpretations best captures the geographic range of s. 31, there are a number of possible consequences on Metis rights. These are set out in descending order of impact on Metis rights. First, s. 31 may be read as purporting to extinguish title throughout all of Canadian territory, including the North-West Territories and Manitoba. If this be correct, then any breach of Canada's obligations under the Manitoba Act would work to nullify the extinguishment of Metis aboriginal title throughout all of Canadian territory (absent other acts of extinguishment). Second, s. 31 may be read as purporting to extinguish Metis aboriginal title in the province of Manitoba, as extended. If this be correct, then any breach of the Manitoba Act will operate to nullify extinguishment throughout the extended province of Manitoba. Third, s. 31 may be read as purporting to extinguish Metis aboriginal title only within the boundaries of the original province. If this be correct, then any breach of the Manitoba Act would operate to nullify extinguishment within the original province only. The Rupert's Land and North-Western Territory Order and its schedules apply to all of the North-West Territories, which includes Manitoba. If the Crown breached its obligations under the Order or its schedules, this would work to nullify extinguishment throughout the North-West Territories, including Manitoba. Finally, any breach of Dominion Lands Act would work to nullify extinguishment in the North-West Territories excluding the original province of Manitoba (absent extinguishment by s. 31 or otherwise). 2.7 Are the Metis "Indians"? 2.7.1 Within the meaning of the Rupert's Land and North-Western Territory Order? The Rupert's Land and North-Western Territory Order and Schedule A thereto speak of governmental obligations in respect of the "claims of Indians" and the "claims of the Indian tribes". "Half-breeds" are not mentioned specifically. Nonetheless, there is evidence that Metis claims were intended to be included under that heading. During that period the rubric "Indian title" was a generic expression used to refer to all aboriginal title. Under the Manitoba Act, the s. 31 lands reserved for Metis were "towards the extinguishment of the Indian title". Similarly, the Dominion Lands Act, 1879 refers to the "Indian title" of the

16

Half-breeds. Prime Minister Macdonald stated in the House of Commons that Metis had claim to the land by virtue of their Indian ancestry.(30) In the various orders-in-council implementing the Dominion Lands Act reference is repeatedly made to Metis claims to Indian title. The order of April 18, 1885, is typical of these. It states: The Committee, on the recommendation of the Minister of the Interior, advise that the Order in Council dated 30th March ultimo, making provision for the manner in which claims existing in connection with the extinguishment of Indian title, preferred by Half-breeds resident in the Northwest Territories … The order of April 13, 1886 states: The Minister states that … at the first sitting of the Commission, held at Fort Qu'Appelle on the 8th of that month, the Half-breeds of that place would not accept in extinguishment of their Indian title, scrip redeemable in Dominion Lands to the extent of $240.00 and that they insisted on being given 240 acres of land… The order of April 12, 1921 states that in territory ceded under Treaty No. 11, The Committee of the Privy Council have had before them a report, dated 30th March, 1921, from the Minister of the Interior, submitting that concurrently with the treaty to be made during the coming season with the Indians of the Mackenzie River District and such territory adjacent thereto as is deemed advisable to include within the treaty, with a view to the extinguishment of the aboriginal title to the lands in the said district and territory, it will be necessary, in accordance with past practice in such cases, to deal with the claims arising out of the extinguishment of the Indian title of the Halfbreeds resident within the territory covered by the proposed treaty … Certain classes of "half-breeds" were excluded from the operation of the Indian Act and some commentators argue that this is evidence that the government was treating the two groups, Indian and Half-breeds, as distinct. But the Indian Act only excluded those Halfbreeds who had received Half-breed grants.(31) Since the Indian Act provided that a Halfbreed who had been admitted to treaty could withdraw from treaty, it appears that the categories of "Indian" and "Half-breed" were not seen as distinct or mutually exclusive categories. Two important documents consider the the use of the term 'Indian' during the period in question. In his article entitled, "Indian: An Analysis of the Term as used in Section 91(24) of the British North American Act, 1867", Chartier concludes, that "the sources of information … favour an interpretation that half-breeds were, in fact, considered to be 'Indians'.(32) Schwartz in First Principles: Constitutional Reform with Respect to the Aboriginal Peoples of Canada, 1982-84 contests Chartier's arguments and concludes:

17

… the Metis had a distinct history of military, economic, legal and political dealings with the Hudson's Bay Company … there was, for many important purposes, a real need to distinguish between the [Indians and Metis] …my respectful conclusion is that half-breeds are not comprehended by the term 'Indian'.
(33)

Schwartz's argument is based upon the distinctiveness of the Metis people in 1867. This is not convincing. Many Indian tribes were distinct, one from the other. Although the point is not free from doubt, usage of the two terms in relevant statutory and other legislative documents suggest inclusion of the Metis under the Rupert's Land and North-Western Territory Order and the schedules thereto. 2.7.2 Within the meaning of s. 91(24)? There are large areas of overlap between the question of whether the Metis are "Indians" within the meaning of the Rupert's Land and North-Western Territory Order and whether the Metis are "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. Arguments for the one will support the other. Nevertheless, there are possible legal distinctions which may be significant. In Re Eskimos(34) the Supreme Court of Canada considered whether Eskimo inhabitants of Quebec are Indians within the meaning of s. 91(24) of the Constitution Act, 1867. Cannon J. concluded that 'Indians' "included all the present and future aboriginies native subjects" of Canada. Kerwin J. agreed that s. 91(24) indicated "the intention … to allocate to [Parliament] authority over all the aboriginies within [Canada]." The jurisprudence is by and large inconclusive, with the exception of R. v. Rocher(35) The accused was charged with violating the Fisheries Act which prohibits fishing without a licence, but allows "an Indian, Inuk or person of mixed blood" to fish without a licence. The accused argued that this was unconstitutional discrimination under the Canadian Bill of Rights. The Court considered whether the indulgence granted to persons of mixed blood was a "valid federal objective" as within federal jurisdiction pursuant to s. 91(24). The Court held that Metis came within s. 91(24). Although the Supreme Court of Canada has yet to decide the issue definitively, there is a strong argument that Metis should be considered 'Indians' within s. 91(24). Metis were included in pre-Confederation legislation defining Indians. An Act for the Better Protection of the Lands and Property of the Indians in Lower Canada, 13 and 14 Vict. c. 42 (1850) provided that "the following classes of persons are and shall be considered as Indians … all persons inter-married with any such Indians and residing amongst them, and descendants of all such persons". By 14 and 15 Vict. c. 59 (1851), the definition was changed to include: … all persons residing among such Indians, whose parents … or either of them was or is descended on either side from the Indians … and the descendants of all such persons: and all women, now or hereafter to be lawfully married to any of the

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persons included in the several classes hereinbefore designated; the children of such marriages, and their descendants. Section 35(2) of the Constitution Act, 1982 provides, "In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada". Some commentators argue that s. 35(2) ought to be read in light of the maxim "inclusio unius est exclusio alterius", i.e. if some are included, the others are excluded. The argument is that the words, "In this Act" suggest that the Metis are not included in other acts, specifically the Constitution Act, 1867. Thus, while Indian, Inuit and Metis are included in s. 35(2) explicitly, they are not included in s. 91(24) This argument overlooks the significance of the Eskimo Reference. If s. 91(24) includes some (Indians) and thus omits others (Metis), how does one explain that s. 91(24) nonetheless includes Inuit? This logic is fatal to the inclusio unius argument. 3. NATURE OF METIS RIGHTS 3.1 Principles of Interpretation 3.1.1 Broad purposive analysis, in historical context Constitutional interpretation differs from statutory construction. The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian jurisprudence. In Minister of Home Affairs et al. v. Fisher et al., Lord Wilberforce reiterated that a constitution is a document "sui generis, calling for principles of interpretation of its own, suitable to its character.(36) Dickson J. in Hunter v. Southam Inc.(37) supported a "broad purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects." The Supreme Court of Canada has continued to follow Dickson J.'s approach in decisions post-dating Hunter v. Southam Inc. In R. v. Big M Drug Mart(38) the Court looked to both the purpose and effect of legislation to determine whether a law was constitutionally valid: … both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the Legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity. As an aid to a purposive analysis, the court may consider the historical background of the constitutional enactment. In Reference Re B.N.A. Act and Senate,(39) the Supreme Court of Canada stated:

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It is, we think, proper to consider the historical background which led to the provision which was made in the [British North America] Act for the creation of the Senate as part of the apparatus for the enactment of federal legislation. The Court then looked to the Debates of the House of Commons for insight into the purposes underlying the inclusion of the Senate in the legislative process in Canada. In Re Residential Tenancies Act, 1979(40) Dickson J. for the Court held that Royal Commission reports and reports of Parliamentary committees made prior to the passing of a statute were admissible to show the factual context and purpose of the legislation. Material relevant to the issues before the Court and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction. The Court supported the practice adopted in the Anti-Inflation Reference of giving timely directions establishing the admission of extraneous documents: I think it can be taken from the conduct of the Anti-Inflation Reference and the use of extrinsic materials by the members of the Court in that case that the exclusionary rule expressed in obiter by Rinfret C.J. in Reference Re Validity of Wartime Leasehold Regulations, can no longer be taken as a correct statement of the law. We should be loathe, it seems to me, to enunciate any inflexible rule governing the admissibility of extrinsic materials in constitutional references. The effect of such a rule might well be to exclude logically relevant and highly probative evidence. In R. v. Sparrow, Dickson C.J. looked to the historical background of the British assertion of sovereignty and its effect on the rights of Indians to their aboriginal lands to provide "the appropriate interpretive framework for s. 35(1) [of the Constitution Act, 1982]."(41) In R. v. Sioui Lamer J., for the Court, carried out an extensive analysis of the historical context and documents surrounding the signing of a document between the Hurons and the representative of the British Crown in order to determine whether the document constituted a treaty. He justified his use of extrinsic evidence on the following basis: … the wording alone will not suffice to determine the legal nature of the document before the Court. On the one hand, we have before us a document the form of which and some of whose subject-matter suggest that it is not a treaty, and on the other, we find it to contain protection of fundamental rights which supports the opposite conclusion. The ambiguity of this document means that the Court must look at extrinsic evidence to determine its legal nature.(42) Lamer J. was dealing with the interpretation of a treaty and interpretation of government obligations and aboriginal rights under the treaty. Because the Manitoba Act may be considered a treaty, it follows that the principle of looking to extrinsic evidence including historical documents applies to interpretation of government obligations under the Act. Furthermore, as Lamer J. indicated, the principle applies to a document which contains

20

protection of fundamental rights. This would extend the principle to interpretation of government obligations under the Rupert's Land and North-Western Territory Order. 3.1.2 Liberally construed in favour of Aboriginal group A second principle of interpretation is relevant to interpreting s. 31 of the Manitoba Act, 1870 and the Rupert's Land and North-Western Territory Order. It is well established that aboriginal rights should be liberally construed in favour of the aboriginal litigants. Where there is doubt, Courts will interpret disputed provisions according to the sense in which they would have been understood by the aboriginal peoples. In Nowegijick v. The Queen, the Supreme Court of Canada stated: … treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. … In Jones v. Meehan, 175 U.S. 1 (1899), it was held that Indian treaties "must … be construed, not according to the technical meaning of [their] words … but in the sense in which they would naturally be understood by the Indians".(43) In Simon v. The Queen, Dickson C.J. pointed to his observation in Nowegijick and reiterated that "Indian treaties should be given a fair, large and liberal construction in favour of the Indians".(44) In R. v. Horseman, Wilson J. (in dissent) stated: The interpretive principles developed in Nowegijick and Simon recognize that Indian treaties are sui generis (per Dickson C.J. at p. 404 of Simon). These treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and would not be expected to reflect, with total accuracy each party's understanding of their effect at the time they were entered into. This is why the Courts must be sensitive to the broader historical context in which treaties were negotiated. They must be prepared to look at the historical context in order to ensure that they reach a proper meaning that particular treaties held for their signatories at the time.(45) These principles are helpful in discerning the purpose behind the constitutional enactments associated with Metis title. After the Red River uprising, Riel's provisional government demanded recognition of Metis aboriginal title and provincial control over lands and natural resources. During the negotiation process, the latter goal was abandoned in favour of the grant of 1.4 million acres of land. The Metis believed they would receive lands they had occupied before transfer to Canada, in accordance with the usage of the country, and a reserve of 1.4 million acres of land which would ensure the survival of their language and culture against the onslaught of settlers. This belief was founded on written and oral assurances from Sir George Etienne Cartier and Sir John A. Macdonald, the representatives of the Canadian cabinet, in the face of a written document that left the implementation of the land grant to the Governor in Council. Father Ritchot, the Riel government's chief negotiator, recorded the progress of the negotiations with Ottawa in his diaries.(46) Based on Ritchot's diaries and the House of

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Commons debates of the period, it is clear that one purpose of s. 31 of the Manitoba Act, 1870 was to confer a benefit of 1.4 million acres of land on the Manitoba Metis. A second purpose, stated in s. 31 itself, was to extinguish Metis aboriginal title in the province. A third purpose was to defuse the Metis resistance, and calm a formidible, politically organized and influential group in the new province by formally recognizing Metis aboriginal title and making provisions to extinguish it in exchange for protecting the old settlement belt of the Metis, and enlarging it by an additional 1.4 million acres. The Rupert's Land and North-Western Territory Order was formulated at the same time as these events were underway. The presence of a potentially adversarial group of Metis in the new territory was a factor in the government's thinking, adding credence to the argument above that the Order was aimed at compensating Metis as well as Indians, as settlement moved towards unceded territory. The demands by Riel's provisional government, still fresh in the government's mind, would have reinforced the government's thinking that Metis title would need to be extinguished in the Territories in the same manner as other aboriginal title. There is also evidence of another underlying purpose of the Rupert's Land and NorthWestern Territory Order and the Dominion Lands Act and its progeny. The order-incouncil of May 6, 1899 dealt with grants of scrip to Metis living in the area under negotiation with the Indians in Treaty No. 8. The Minister of the Interior advised the federal government to extend the grant to those born before 1885, rather than before 1870, which was the cut-off point that had been used throughout the North-West Territories up until that date. The Minister's recommendation cited the need to placate the Metis to prevent them using "their great influence with the Indians as to make it extremely difficult, if not impossible to negotiate a treaty." By section 14 of the Rupert's Land and North-Western Territory Order, the federal government undertook responsibility for settling any claims to compensation for lands for settlement. The historical record shows that the Hudson's Bay Company, which had been fulfilling various obligations towards the native population, wanted to be rid of its responsibilities absolutely.(47) The Canadian government agreed to accept them as a condition of the Deed of Surrender. In other words, the acceptance by the federal government of full responsibility for the aboriginal peoples within the Rupert's Land and the North-Western Territory was a condition for the surrender of Hudson's Bay Company lands to Canada. The purposes underlying the Manitoba Act and the Rupert's Land and North-Western Territory Order can be summarized as follows: a) to confer a benefit on the Metis which comprised traditional Metis lands in the old settlement belt, together with a 1.4 million acre enlargement; b) to extinguish Metis aboriginal title; c) to defuse the Metis resistance; d) enlist Metis support in facilitating treaty-making with the Indians, and e) in order to accomplish the surrender of Hudson's Bay Company lands to Canada. 3.2 Right to be Dealt with Consistent with Past Crown Practices

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Under Schedule A of the Rupert's Land and North-Western Territory Order, the Metis throughout that region, including the province of Manitoba, were guaranteed a right to be dealt with consistent with past Crown practices. As previously noted, this guarantee of treatment consistent with past Crown practice is constitutionally entrenched. In Calder, Hall J. described Crown practices in Canada with respect to aboriginal peoples as being firmly rooted in the provisions of the Royal Proclamation of 1763. After noting that the Proclamation "must be regarded as a fundamental document upon which any just determination of original rights rests", he quoted from the Supreme Court in Province of Ontario v. Dominion of Canada:(48) The policy [outlined in the Royal Proclamation] adhered to thenceforward, by those responsible for the honour of the Crown, led to many treaties whereby Indians agreed to surrender such rights as they were supposed to have in areas respectively specified in such treaties. The Crown practices described by Hall J. in Calder were reiterated in Guerin at p. 383. After noting the terms of the Proclamation, the Court continued: As Lord Watson pointed out in St. Catherine's Milling, supra at p. 54, this policy with respect to the sale or transfer of the Indians' interest in land has been continuously maintained by the British Crown, by the governments of the colonies when they became responsible for the administration of Indian affairs, and after 1867, by the federal government of Canada. It is apparent that the British Crown had followed the terms of the Royal Proclamation up until the time of Confederation. The Canadian government has continued the practice with respect to Indians, since 1867. Indeed, the federal government negotiated several treaties with Indian tribes in the North-West Territories contemporaneous with the Metis grants between 1888 and 1921. With the possible exception of the Manitoba Act, the federal government acted unilaterally to extinguish Metis rights by legislation and order-in-council. After 1883, the Dominion Lands Act applied only to those areas of the North-West Territories where Indian title had been extinguished.(49) In that area of the North-West Territories where Indian title had been extinguished, the Canadian government acted unilaterally to impose a scrip system in extinguishment of Metis aboriginal title by s. 125(e) of the Dominion Lands Act, 1879 and its progeny orders-in-council. Federal practice with respect to extinguishment of Metis title in areas of the North-West Territories where Indian title had not been extinguished was likewise unilateral. Between 1888 and 1921, the federal government negotiated a number of treaties with Indian tribes in the North-West Territories.(50) Extinguishment of Metis aboriginal title was delayed until federally-appointed treaty commissioners had completed negotiations with Indians on the terms of surrender of their aboriginal title, in compliance with the practice since the Royal Proclamation. Once the parties had signed the treaty, the Canadian government would then act unilaterally to appoint Half-breed commissioners to grant scrip in extinguishment of any Half-breed claims in the area covered by the Indian treaty.

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The Crown's practice since the Royal Proclamation had consistently been to extinguish aboriginal rights through negotiation and the treaty process. Federal government policy to extinguish Metis aboriginal title throughout the North-West Territories was therefore contrary to Crown practices. In the case of the Manitoba Act, the federal government negotiated the quid pro quo for extinguishment with representatives of Riel's provisional government. The quid pro quo was to be a grant of lands and confirmation of title to traditionally occupied lands. That much was consensual. But the federal government acted unilaterally to implement the land grant and the confirmation of titles. It did so in a manner which was not within the contemplation of the Metis at the time the agreement was made. The Metis did not contemplate government delays, competition with settlers for their lands, the process of scrip instead of land grants, or acts by the government which facilitated the operation of speculators. The Metis did not contemplate the system which ultimately resulted in the dispossession of their lands. The Metis did not contemplate, in Professor Sprague's words, "a reign of terror … [intended] to intimidate the general population into abject subjugation or migration" (Sprague Report, p. 9). In view of the interpretive principles reviewed earlier, the Manitoba Act must be liberally construed in favour of the Metis. Such a reading would not allow Canada to act in the manner which it did. In this sense, the land grant scheme in Manitoba was not consensual. This makes it contrary to Crown practices post-dating the Royal Proclamation, 1763. If government actions in extinguishing the aboriginal title of the Metis were not in conformity with Crown practices, then this would work to nullify extinguishment throughout the territory covered by the Order. It may be argued that the purpose of the Manitoba Act was to extinguish Metis aboriginal title throughout Manitoba and the North-West Territories, and that the federal government carried out the grant of scrip outside Manitoba, not because of any constitutional obligation, but rather, and only, to afford Metis in those areas the right to come forward individually to claim compensation. If this is so, the government nonetheless had an obligation to extinguish title in an equitable manner, which arguably it did not do. This issue is addressed in the next section. 3.3 Right to be dealt with Equitably As discussed in the previous section, under Schedule A of the Rupert's land and NorthWestern Territory Order, Canada had a constitutional obligation to deal with the Metis in conformity with past practices. The Order imposed a second constitutional obligation on Canada -- to deal with the Metis "equitably". We take this to mean that the government had an obligation to settle the claims of the various aboriginal groups in a fair and equitable manner, as contrasted with each other. It follows that the quid pro quo for the surrender of Metis rights should be "equitable" as compared with that received by Indian tribes who surrendered their title through treaties.

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Indian tribes who signed treaties in the North-West received reserve lands, perpetual annuities, farm implements, livestock, schools, instructors, etc.(51) Indians retained hunting and fishing rights on surrendered lands.(52) Indians who took treaty came under the protection of the federal government under the Indian Act. Their reserve lands, which became their collective homelands, were held in trust by the Crown until such time as they voluntarily surrendered them. Surrender could only be made to the Crown. In some cases, provision was made for "Indian families or individual Indians as prefer to live apart from band reserves." Land was set aside "in severalty to the extent of 160 acres for each Indian with the proviso as to non-alienation without the consent of the Governor in Council."(53) It appears that even those Indians who chose not to live on a reserve enjoyed the Crown's continued protection of their interests. In contrast, the Metis in Manitoba received a land grant or scrip, and Metis in the NorthWest Territories received scrip or a cash grant of $160 or $240. Once a Metis had claimed his or her scrip land, the government considered any obligation to be ended. The federal government apparently did not consider that it had a continuing obligation to protect Metis interests as "Indians" under s. 91(24) of the Constitution Act, 1867. After 1930, with the enactment of the Natural Resources Transfer Agreements, the federal government washed its hands of the Metis problem. After the signing of the Natural Resource Transfer Agreements, the provinces undertook to alleviate Metis destitution, but not through any concept of a legal obligation to do so. In 1933, the Alberta legislature established a commission to enquire into: … the condition of the half-breed population of the province of Alberta, keeping particularly in mind the health, education, relief and general welfare of the population. Three commissioners were appointed and submitted their report in 1936. The commissioners stated: The story of scrip and its final outcome is still vivid in living memory. The precautions of Parliament were easily circumvented and the scrip passed readily and cheaply into the hands of speculators. The resultant advantages to the halfbreeds were negligible. The policy of the Federal Government, however, extending over a period of thirty years, and these issues of scrip, throw a strong light on the present problem. In the first place, the scrip was issued in extinguishment of any supposed right which the halfbreed had to a special consideration. But the Government of this Province is now faced, not with a legal or contractual right, but with an actual condition of privation, penury and suffering. [Emphasis added](54) Although the Metis chose a grant of land instead of entering a reserve system, under the terms of Schedule A to the Rupert's Land and North-Western Territory Order, they nonetheless had a right to equitable treatment with other aboriginal groups. It follows that the Metis had a right to obtain benefits and protections similar to those obtained by Indians taking treaty. They had a right to continued protection from the federal government. This

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may well have taken the form of a protection of their lands to ensure that they did not pass into the hands of speculators and out of their control. 4. THE CROWN'S DUTY 4.1 Dealings to preserve the honour of the Crown The government's treatment of aboriginal peoples must be such as to preserve the honour of the Crown. This principle was explained by Blair J.A. in R. v. Agawa:(55) The second principle was enunciated by the late Chief Justice MacKinnon in R. v. Taylor and Williams (1981), 34 O.R. (2d) 360. He emphasized the importance of Indian history and traditions as well as the perceived effect of a treaty at the time of its execution. He also cautioned against determining Indian rights "in a vacuum". The honour of the Crown is involved in the interpretation of Indian treaties and, as a consequence, fairness to the Indians is a governing consideration. He said at p. 367: "The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of "sharp dealing" should be sanctioned." The Supreme Court in Sparrow cited Agawa with approval and stated at 1110: The way in which a legislative objective is to be obtained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy between the Crown and the aboriginal peoples. The courts in Agawa and Sparrow were considering government practices within the context of Indian treaties. The same principles can be extended to legislative progeny under the Manitoba Act and Rupert's Land and North-Western Territory Order. Government policies and practices, implemented through legislation and orders-in-council, must be scrutinized to determine whether they meet the standard of preserving the honour of the Crown. If they do not meet that standard, then the official actions are suspect and should be viewed with appropriate suspicion by the courts when assessing their validity. 4.2 The Crown as Fiduciary In Guerin v. The Queen,(56) the Supreme Court established that the Crown is under a fiduciary duty to deal with surrendered Indian lands for the benefit of the surrendering Indians. This is an equitable duty, enforceable in the courts and giving rise to damages measured by actual loss sustained, in the event of a breach. In Guerin, the Court found that the duty proceeds both from the nature of Indian title itself, and from the statutory framework governing such title. According to Dickson, J. who authored the majority judgment,

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… the nature of Indian title and the framework of the statutory scheme established for disposing of Indian land places upon the Crown an equitable obligation, enforceable by the courts, to deal with the land for the benefit of the Indians. This obligation does not amount to a trust in the private law sense. It is rather a fiduciary duty. If however, the Crown breaches this fiduciary duty it will be liable to the Indians in the same way and to the same extent as if a trust were in effect. The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The facts that Indian bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in land is inalienable except upon surrender to the Crown.(57) In Guerin the aboriginal group concerned could only alienate its lands to the Crown. A sale or lease could only be carried out with the Crown acting on the Band's behalf. The Court noted that the Crown first took this responsibility upon itself in the Royal Proclamation of 1763 which provided that no private person could purchase from the Indians any lands that the Proclamation had reserved to them, and provided further that all purchases had to be by and in the name of the Crown, in a public assembly of the Indians held by the governor or commander-in-chief of the colony in which the land in question lay. As Lord Watson pointed out in St. Catherine's Milling v. The Queen,(58) this policy with respect to the sale or transfer of the Indian's interest in land had been continuously maintained by the British Crown, by the government of the colonies when they became responsible for the administration of Indian affairs, and, after 1867, by the federal government of Canada. The purpose of the surrender requirement was clearly to interpose the Crown between the Indians and prospective buyers. This is made clear in the Proclamation which prefaces the provision making the Crown an intermediary with a declaration that "great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the Indians." In Guerin, the statutory scheme under section 18 of the Indian Act also conferred a discretion on the Crown to "determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band." The Court noted that the discretion conferred under the Act is not an unfettered one to decide the use to which reserve lands may be put. It is to decide whether any use for which they are proposed to be put is for the use and benefit of the Band. Dickson J, in Guerin, noted that "the hallmark of a fiduciary relation is that the relative legal positions are such that one party is at the mercy of the other's discretion." He characterized the fiduciary obligation owed to the Indians by the Crown as sui generis. As previously discussed, the Metis had a claim to aboriginal title. The Crown appears to have recognized their claim in the Manitoba Act, the Rupert's Land and North-Western Territory Order, the Dominion Lands Act and progeny orders-in-council. As an aboriginal group, under the Royal Proclamation, the Metis could only surrender their aboriginal title

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in lands to the federal government. In the Manitoba Act and the Dominion Lands Act the Crown conferred upon itself the complete discretion to implement and administer the land grant scheme. Thus, the two conditions in Guerin which give rise to a fiduciary relationship are present with respect to Canada's dealing with the Metis: a) there is but one avenue of surrender, and that to the Crown and b) the Metis were at the mercy of the Crown's discretion. The Crown was therefore under a fiduciary obligation to exercise its discretion in the Metis' best interests. If it can be shown that the Crown did not act in the Metis' best interests, then the Crown will be in breach of its fiduciary duty and a question arises as to the appropriate remedies. In Guerin, the Court held that the Crown could not ignore the oral terms which the Band understood would be embodied in the lease. The Crown argued that the terms of the surrender document, which was silent both as to the lessee and the terms of the lease, gave the Crown complete discretion to negotiate any lease it wished to, even though the Band members had voted on and approved the terms for lease at a meeting held for that purpose at which representatives of the Crown were present. Dickson J. stated: [The Crown's argument] makes a mockery of the Band's participation. The Crown well knew that the lease it had made with the golf club was not the lease the band surrendered its interest to get. Equity will not permit the Crown in such circumstances to hide behind the language of its own document. [Emphasis added] In the Metis case, written and verbal promises were obtained from Prime Minister Macdonald and Sir George Etienne Cartier, which do not appear in the text of the Act. The Metis representatives received written and verbal assurances that the province would have the authority to distribute the lands and that Metis in occupation of lands outside the settlement belt would get free grants of those lands. Neither of these terms was mentioned in the text of the Act.(59) Nonetheless, these assurances gave rise to a legitimate expectation that the land would be surveyed and allotted in such a way as to allow the Metis to live in communities with communal resources. Applying Guerin, the Crown ought not to have ignored its written and oral promises. That it did so is another indication that it breached its fiduciary obligations to the Metis people. 4.3 Positive Constitutional Obligations Most constitutional texts empower government to exercise discretionary power. Some texts prohibit government from acting. However, Canada's constitution contains a few exceptional provisions which require government to act positively. The most prominent are the language guarantees in s. 23 of the Manitoba Act, 1870 and the parallel provision in s. 133 of the Constitution Act, 1867, and sections 18 and 23 of the Canadian Charter of Rights and Freedoms. In Re Manitoba Language Rights, the Supreme Court of Canada considered the requirement of s. 23 of the Manitoba Act that both French and English be used in the records, journals and Acts of the Manitoba Legislature. The Court unanimously held that s. 23 of the Manitoba Act, 1870 creates positive constitutional obligations on the government

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which require government to act positively in the interests of language minorities. Furthermore, the Court held that the obligations are judicially enforceable: The constitutional entrenchment of a duty on the Manitoba Legislature… confers upon the judiciary the responsibility of protecting the correlative language rights of all Manitobans including the Franco-Manitoban minority. The judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution. We must protect those whose constitutional rights have been violated, whomever they may be, and whatever the reason for the violation.(60) Section 31 and 32 of the Manitoba Act, 1870 are analogous to s. 23. Whereas s. 23 entrenches a mandatory requirement to enact legislative instruments in French and English, s. 31 entrenches a mandatory requirement to grant 1.4 million acres of land to children of the Metis heads of family. Section 32 creates a positive obligation to confirm title of occupiers of lands as specified in sections 32(1) to 32(3), and to give a right of pre-emption to all those in peaceable possession under s. 32(4). According to the terms of the provisions, the positive obligation created by sections 31 and 32 of the Manitoba Act rests on both the federal and the provincial governments. Similarly, clause 14 of the Rupert's Land and North-Western Territory Order requires that the federal government take responsibility for disposal of "any claims of Indians" to compensation for lands required for settlement. Schedule A requires the federal government to establish fair and equitable processes for accomplishing this. The Court in Re Manitoba Language Rights was dealing with a large scale historical injustice to the Franco-Manitoban minority, the remedy for which could upset the existing constitutional order and threaten the rule of law. A potential outcome was invalidation of all Manitoba statutes, thereby (in theory) returning Manitoba to a state of nature. Because the wrong was so large and intimidating, the Supreme Court fashioned novel, special remedies to preserve the rule of law. The Court also created new procedures to enforce them. The Court declared invalid Acts temporarily valid, and required the government to translate, re-enact, print and publish invalid statutes in the shortest possible time. The Court granted a special role to the intervenors to create and enforce the timetable, and reserved to itself continuing jurisdiction to oversee government satisfaction of its obligations under the Court's order. In summary, in Re Manitoba Language Rights the Court: i) had a duty to ensure government compliance with its positive constitutional obligations; ii) fashioned special remedies to overcome the enormous implications of its declaration that all unilingual laws were invalid and of no force or effect; iii) recognized the intervenors as special "parties" in working out an acceptable timetable for the remedial action by the government; and

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iv) reserved to itself continuing jurisdiction to oversee the implementation of the remedial scheme. These special features of the Manitoba language cases are relevant to the large-scale historic injustice asserted to have been worked on the Metis people. If extinguishmment of Metis title is nullified as a remedy, it could upset the existing constitutional order and threaten the rule of law. As in the Manitoba Language Reference this could create a certain amount of chaos in western Canada. There is a large-scale historic injustice which needs to be corrected, and which is not easily accomplished within the existing legal system. However, the Manitoba Language Reference suggests that the Court: i) would have a duty to ensure governmental compliance with its constitutional obligations; ii) might well create a special remedy to overcome the implications of declaring Metis aboriginal title to remain outstanding and unextinguished; iii) should recognize the Metis National Council and provincial Metis organizations in a representative capacity to speak on behalf of Metis claims and to settle or litigate them; iv) reserve to itself a continuing jurisdiction to oversee a process by which the Metis are placed in the position they would have been in had the government faithfully and in good conscience discharged its obligations to the Metis people and v) approve a settlement which redresses the wrong to the Metis people. 5. THE SYSTEM ESTABLISHED TO GRANT METIS LANDS 5.1 In Manitoba 5.1.1 Introduction The government's administration of sections 31 and 32 of the Manitoba Act has been chronicled elsewhere.(61) This paper will therefore be restricted to the facts essential to a legal analysis of the process and outcome. Preoccupied as it was with the difficulties of building railways and establishing settlements throughout the West, the federal government attended to its obligations to the Metis under the Manitoba Act through a long-drawn-out series of orders-in-council and statutes. The year following the enactment of the Manitoba Act, regulations were approved by the Governor in Council providing for the distribution of the s. 31 lands. Sections 1 to 3 of the April 25, 1871 order-in-council are important. They read: 1. Every half-breed resident in the Province of Manitoba at the time of the transfer thereof to Canada (the 15th day of July, A.D. 1870) and every child of every such half-breed resident, shall be entitled to participate in the 1,400,000 acres. 2. The most liberal construction shall be put on the word resident. 3. No conditions of settlement shall be imposed in grants made to half-breeds in pursuance of the provisions of the Act referred to, and there shall be no other restrictions as to their power of dealing with their lands when granted than those which the laws of Manitoba may prescribe.

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The program was characterized by delays, the seriousness of which was compounded by the pressures imposed by incoming settlers. In 1873, the Governor in Council amended the 1871 order, providing that "the children of half-breed heads of families alone are entitled to share in the reservation [of the 1.4 million acres]".(62) This inauspicious start is an indication of the problems that would continue to beset the land grant program. Dating from the passing of the Manitoba Act, two years were taken to set aside the land for the individual allotment; three years to decide that only children of Half-breed heads of families were eligible to share in the grant; five years to determine how best to assess the Metis land claims; six years to decide on a course of action in issuing patents; and four more years to complete the issue of patents. The process which was chosen to distribute lands to the children may be generalized as follows:(63) i. The parishes where the Metis land grants were to be located were chosen by the Lieutenant Governor in consultation with Metis representatives. Complications arose due to the May 26, 1871 order which allowed incoming settlers to take up homestead entries before the survey of provincial lands was completed. A census of Metis was carried out in 1872. Parishes required for the Metis land grants were chosen by 1873. ii. The Lieutenant Governor drew "allotments" of the specified acreage within the parishes reserved for the grant of land. Drawings for allotments of 140 acres started in February, 1873, based on a grant to all Metis, as per order-in-council of April 25, 1871. These allotments were cancelled following the order-in-council of April 3, 1873 which specified that only children of Half-breed head of family were entitled to participate. Allotments for parcels of 190 acres to the children only started in August 1873. These allotments were cancelled when a new census was ordered by the (new) federal government. Drawing of allotments of 240 acres (based on new census results which found fewer Metis entitled to participate in the grant) started in October 1876. Drawings of allotments of 240 acres were completed by 1880. iii. Once an allotment was drawn, it was assigned to an individual Metis child. A list of those Metis as drawn who were to receive land in each parish was posted. No description of the lands received by each individual was posted, in an attempt to discourage speculation in the lands. iv. A Commissioner was appointed to receive evidence in support of each claimant's claim. Two householders in the parish were to attest to the identity of the claimant. Lists of approved claimants and their allotments were sent to Ottawa where the Crown issued patents to the lands. This could take months or years. Under the original rules, patents were issued only to children aged 18 and over. But by the order-in-council of July 4, 1878 this was changed such that the patent would issue immediately to all claimants, regardless of age. Issuance of patent signified that the Metis child owned his or her allotment and thereby received the deed to same.

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iv. The rules governing conveyance by the Metis children of their interest in (i.e. their anticipated receipt of lands) or deed to the allotment, were changed several times during the course of the allotment and the issuing of patents. Both the federal and provincial levels of government passed legislation relating to sale and conveyance of the Metis lands. These legislative enactments are described in the legislative chronology which follows. v. The estimate of the number of children eligible for the grant of lands, on which the allotment size of 240 acres was based, later proved to be low. Once the 1.4 million acres had been allotted, provision was made for remaining eligible children to receive money scrip for $240 instead of a land grant by order-in-council of April 20, 1885.(64) In total, 993 grants of money scrip were made to children of half-breed heads of family in Manitoba.(65) By An Act respecting the appropriation of certain Dominion Lands in Manitoba(66) the federal government provided that the Half-breed heads of family were to receive 160 acres of land or $160 in scrip receivable in payment for the purchase of Dominion Lands. The Act appears to recognize the need to extinguish the aboriginal title to lands in the Province of the Metis heads of family. The preamble to the Act states: Whereas by [s. 31 of the Manitoba Act] it was enacted as expedient towards the extinguishment of the Indian title to the lands in the Province of Manitoba to appropriate [1.4 million acres] of such lands for the benefit of the children of the half-breed heads of families residing in the Province at the time of the transfer thereof to Canada; And whereas no provision has been made for extinguishing the Indian title to such lands as respects the said half-breed heads of families residing in the Province at the period named; And whereas it is expedient to make such provision, and it is deemed advisable to effect the same by grants of land or by an issue of scrip redeemable in Dominion Lands; … The Act provided two avenues to effect the extinguishment: by grant of 160 acres of land or grant of scrip for $160. However, by order-in-council of March 23, 1876, money scrip was chosen as the sole means: "In view of the great dissatisfaction which has been caused in Manitoba by the locking up of large and valuable tracts of land for distribution among Half-breeds, thus seriously retarding the development of the country".(67) Money scrip was receivable in payment for Dominion lands at the rate of $1 per acre. Half-breed heads of family resident in Manitoba on the date of transfer to Canada made 3186 claims for a total of $509,760.(68) The same Act provided for scrip to be issued to the "original white settlers" in the Province in the amount of $140. In 1873, the Manitoba Legislature recognized that Metis were selling their "claims" to speculators. The Legislature moved to protect Metis interests with the passage of the HalfBreed Land Grant Protection Act.(69) The preamble stated the following rationale for enactment of legislation to protect Metis interests:

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And whereas in consequence of the condition of the surveys in the Province not permitting, the distribution of the said lands in the said manner as fixed by the Order in Council [of April 25, 1871] has not yet been effected, and in the meantime very many persons entitled to participate in the said grant in evident ignorance of the value of their individual shares have agreed severally to sell their right to the same to speculators, receiving therefor only a trifling consideration… The Act provided that no promise or agreement made by a Metis to convey title would be binding. In 1877, the year following the commencement of the drawing of allotments of 240 acres and the grant of money scrip to heads of families, the Manitoba Legislature amended the Half-Breed Land Grant Protection Act.(70) The amendment provided that if any consideration which had been paid to a Metis for the sale of a right to or interest in lands was not repaid within three months, then the sale of the right to or interest in the lands would be binding and "such Half-breed shall assign by a good and sufficient title to the purchasers aforesaid, the said lands so granted within three months after the receipt of the patent from the Crown". The federal government disallowed this Act in 1876.(71) The Manitoba Legislature passed another amendment the following year, which provided that, I. … any sale for valid consideration, and duly made and executed by deed, after the coming into force of this Act, by any Half-Breed having legal right to [an allotment] shall be held to be legal and effectual for all purposes whatsoever, and shall transfer to the purchaser the rights of the vendor thereto. [Emphasis added](72) The act came into force on July 1, 1877. This had the effect of confirming the Half-Breed Land Grant Protection Act retrospectively, but cancelling it prospectively. The federal government did not disallow this Act on the reasoning that four years had elapsed since the passage of the original Act and "during that time the half-breeds must, as a general rule [have] become well acquainted with the value of their interests in the lands."(73) The Manitoba Legislature and the federal government enacted subsequent legislation which affected the manner in which Metis could dispose of scrip and their interest in land. These are described in the following legislative chronology. 5.1.2 Legislative Chronology - Manitoba May 12, 1870 Section 31 of the Manitoba Act provides for a grant of 1.4 million acres to be divided among the children of the Half-breed heads of families residing in the province at the date of transfer, July 15, 1870. Section 32 provides confirmation of title for existing land holdings to settlers, most of whom are Metis. June 23, 1870 Rupert's Land and North-Western Territory Order assented to. The Order applies to all of the North-West Territories, including the province of Manitoba. By clause 14: "Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial

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Government; and the [Hudson's Bay] Company shall be relieved of all responsibility in respect of them." Schedule A to the order states: "…the 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 its dealings with the aborigines." [Emphasis added] Schedule B of the Order states: "…it will be the duty of the [Canadian] Government to make adequate provision for the protection for the Indian tribes whose interests and wellbeing are involved in the transfer." April 25, 1871 By O/C, the federal government introduces regulations concerning public lands in Manitoba. In relation to the Half-breeds, it is provided that all Half-breed residents shall be eligible to participate in the land grant scheme. A census of Half-breeds is authorized.(74) This order and that of May 26, 1871 are confirmed by s. 108 of the Dominion Lands Act.(75) May 26, 1871 By O/C, settlers entering Manitoba are allowed to take up homestead entries before survey completed. As a result, lands regarded by certain Half-breeds as theirs are taken up by white settlers.(76) January 13, 1872 Census referred to in O/C April 25, 1871 is ordered. Census will enumerate all Half-breeds entitled to land under the grant in Manitoba.(77) April 15, 1872 By O/C, Lieutenant Governor Archibald is authorized to select the townships required to make up the 1.4 million acres, the "surveys being sufficiently far advanced to enable a selection". Number of eligible Metis is estimated to be 10,000 based on census results. The O/C of May 26, 1871 is rescinded.(78) This order is confirmed in the Dominion Lands Act, 1872.(79) December, 1872 Lieutenant Governor Morris announces that the allotment of the children's lands will proceed "forthwith". The Manitoban reports that speculators are buying up Halfbreed claims.(80) February 28, 1873 Manitoba Legislature passes the Half-Breed Land Grant Protection Act which states: "… very many people entitled to participate in the said grant in evident ignorance of the value of their individual shares have agreed severally to sell their right to the same to speculators, receiving therefor only a trifling consideration". No promise or agreement to convey title, made by any Half-breed prior to issue of the patent, will be binding.(81) March 1873 Drawings by the Lieutenant Governor to allot the lands begins, in 140-acre lots based on census results that there are 10,000 Metis entitled to a share of s. 31 lands.

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April 3, 1973 O/C provides that only children of Half-breed heads of families will be entitled to s. 31 lands.(82) This order is confirmed later that year by federal statute.(83) May 26, 1874 An Act respecting the appropriation of certain lands in the Dominion is passed by the Parliament of Canada. The Act provides for either a grant of 160 acres of land or $160 scrip to Half-breed heads of family "for extinguishing the Indian title to [lands in Manitoba] as respects the said Half-breed heads of families". It also provides that claimants in actual and peaceable possession of lands under sections 32(3) and 32(4) of the Manitoba Act shall receive letters patent granting the lands to them in fee simple. The Act also provides for the grant of 160 acres to the original white settlers in the province. The grant will be accomplished by the issue of $160 in scrip at the request of the original white settlers.(84) April 26, 1875 O/C provides for a Half-breed Commission to assess claims. With the number of s. 31 claimants reduced by the exclusion of half-breed heads of family, grants to Half-breed children are increased to 190 acres. Machar and Ryan are appointed Commissioners by O/C the following month.(85) May 14, 1875 Manitoba statute is passed that validates any sale by a Metis of his interest in lands for valid consideration if the consideration plus interest is not repaid within three months from the passing of the Act.(86) The Act is later disallowed by the federal government.(87) March 23, 1876 "In view of the great dissatisfaction which has been caused in Manitoba by the locking up of large and valuable tracts of land for distribution among Half-breeds, thus seriously retarding the development of the country," scrip is to be issued to satisfy claims of the Half-breed heads of family. O/C states that "assignments of Half-breed land rights" will not be recognized, "with a view to discourag[ing] the operations of speculators in these lands".(88) April 20, 1876 O/C distinguished three categories of claims under s. 32 to river-frontage: first was land "occupied in accordance with the custom of the country" before January 15, 1872; second was unimproved land "alleged to have been taken up" before the transfer; and third was land "resided upon and cultivated continuously". By the O/C, only categories one and three were admissible; those in category two were "not entitled to consideration". O/C had the effect of denying claimants because it asserted that the customary method of taking up land before the transfer was "to employ [surveyors] to survey and lay out the land. In fact, the customary practice was to plant stakes at the corners of the chosen area.(89) September 7, 1876 As a result of assessments by the Half-breed claims Commission, the number of eligible Metis children is revised downwards. The land grant is now set at 240 acres per child. Preliminary allotments which had been completed in several parishes are cancelled and have to be redrawn.(90) October 30, 1876 Final drawing and allotment of s. 31 lands begins. Land grants are made during 1877, 1878, 1879, and 1880.

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February 28, 1877 Manitoba Legislature enacts legislation that provides that any sale for valid consideration by any Half-breed having legal right to a s. 31 lot of land is legally binding and effective. The Act is to take effect July 1, 1877.(91) February 2, 1878 Manitoba statute is passed creating a general power in the courts to allow sales of any minor's estate without the child having to appear before the judge. This was held to apply to s. 31 claims. Thus a judge could order sale of a minor's Half-breed claim in conformity with the act. Monies from sales had to be paid into court to be invested for the benefit of the infant.(92) February 2, 1878 The same day as An Act respecting Infants is passed, Manitoba passes another statute to enable Half-breed children over 18 years of age to convey their land, if free and voluntary and with parental consent. Child required to appear in court to be examined with respect to the voluntariness of the conveyance.(93) July 4, 1878 By O/C, patents will issue forthwith to all claimants of s. 31 lands, regardless of age or sex. Sections 6 and 7 of the April 25, 1871 order are rescinded, removing some protection of children under the age of 18.(94) June 25, 1879 Amendment to Manitoba's Infant's Estates Act gives courts the discretion to order that proceeds of sale be paid to the parent or guardian of the infant, instead of into court as previously.(95) April 12, 1880 O/C: Minister of the Interior reports that all of the 1.4 million acres have been distributed. Section 32 claims of Half-breeds to lands staked out "in accordance with the usage of the country previously" are refused. "The mere fact of staking out the land, without entering into bona fide possession "does not bring the claims within the Manitoba Act".(96) May 25, 1881 Manitoba statute enacted, "Whereas … the titles to a large quantity of land are involved in great doubt and their improvement is likely to be retarded …" deeds and powers of attorney executed by children having a claim to s. 31 lands will be considered valid even if made before issue of Crown patent or allotment. Other provisions: no deed or power of attorney, or other instrument, will be invalid because there is only one witness; and every court order, regardless of irregularities, is deemed to be valid.(97) April 20, 1885 Children of Half-breeds whose claim is proved after the 1.4 million acres had been exhausted are to be given $240 in scrip, receivable in payment in Dominion Lands at price of $1/acre. May 1, 1886 is set as the deadline for proving these "supplemental" claims.(98) December 4, 1893 The policy of refusing to recognize assignments of scrip is ended as "this practice was passed nearly 18 years ago, and if it could have served the purpose for which it was adopted - that is discouraging speculation in Half-breed lands, which is very doubtful - the period of its usefulness has certainly passed."(99)

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5.2 In the North-West Territories 5.2.1 Introduction After the transfer of Rupert's Land and the North-Western Territory to Canada in 1870, there was a nine-year hiatus before the government took any action to carry through on its obligations under the Rupert's Land and North-Western Territory Order. In 1879, Parliament amended the Dominion Lands Act to provide for extinguishment of Metis aboriginal title: 125 The following powers are hereby delegated to the Governor in Council: … (e) To satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by half-breeds resident in the North-West Territories outside the limits of Manitoba, on [July 15, 1870] by granting land to such persons, to such an extent and on such terms and conditions as may be deemed expedient; Section 125(e) did not distinguish between Metis children and heads of families; both would get something, as in Manitoba. By setting the stipulated date of residence as the date of transfer of the territories to Canada, s. 125(e) tried to achieve a parallel structure to the Manitoba Act. However, the 15-year lapse of time meant that the large number of Metis born in the North-West Territories since 1870 would be excluded from the benefit. This became a source of grievance in the years to come. The government did not act to extinguish Metis aboriginal title in the North-West Territories, as provided by the 1879 Act, until the Metis rebellion in the spring of 1885. Faced with a discontented and rebellious population of Metis who were demanding that their rights be recognized by the government, the Canadian Cabinet acted through an orderin-council on March 30, 1885. By the order of March 30, 1885, the federal cabinet provided that the land grant scheme in extinguishment of Metis title, pursuant to s. 81(e) of the Dominion Lands Act, 1883,(100) was to be based on scrip. The order provided that each Half-breed head of family resident in the North-West Territories before July 15, 1870 was eligible to receive "the lot or portion of land of which he is at the present in bona fide and undisputed occupation by virtue of residence upon and cultivation thereof, to the extent of 160 acres." Any difference between the 160 acres and the size of the lot was to be made up in scrip, redeemable in land at the rate of $1 per acre. Half-breed heads of family who did not occupy lands, would receive money scrip for $160 redeemable in lands at $1 per acre. Similar provisions were enacted for children of the Half-breed heads of family who were in bona fide and undisputed occupation of their lands. The children would receive lands up to 240 acres, the difference to be granted in scrip. If the child was not in occupation of lands, he would receive money scrip for $240 redeemable in land at $1 per acre.

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The order-in-council of March 30, 1885 provided that the grant of 160 acres and 240 acres should be reduced by the amount of land which the claimants were residing upon and cultivating. The Metis protested. The government removed this condition by order-incouncil dated April 18, 1885. The new order provided that the grant of land in extinguishment of Metis aboriginal title was in excess of occupied lands. The Metis could also purchase their occupied lands for $1 per acre up to 40 acres. The order also changed the children's grant to a "certificate entitling them to select 240 acres of land from any lands open for homestead and pre-emption entry". A later order in council allowed the Metis children to choose land scrip for 240 acres, or money scrip for $240.(101) Thus, Metis heads of family in the North-West Territories received $160 money scrip and children received their choice of land scrip for 240 acres or $240 money scrip. 5.2.2 Extinguishment of Metis aboriginal title in lands ceded by the Indians The Dominion Lands Act only applied to lands where Indian title had been ceded. Section 3 of the 1883 Dominion Lands Act makes this clear: 3. None of the provisions of this Act shall be held to apply to territory the Indian title to which shall not, at the time, have been extinguished. In the orders-in-council which were subsequently passed to implement the Dominion Lands Act, it is apparent that the federal government understood this provision to refer to the extinguishment of the Indian title of the Indians, not the Metis. The Dominion Lands Act was held to apply only to those lands where the Indians had ceded title through treaty or otherwise. Therefore, the order-in-council of March 30, 1885 and subsequent orders which established the land grant scheme in the North-West Territories also applied only to lands where the Indian title of the Indians had been ceded. Between 1888 and 1921, the federal government negotiated numbered treaties with Indians in the North-West Territories.(102) Only after these lands were surrendered to the Crown, did they become subject to s. 81(e) of the Dominion Lands Act. By order-in-council of December 14, 1888, the Commissioners who were conducting negotiations "with the Green Lake [Treaty No. 6 Adhesion] Indians for surrender of their title to the country" were empowered "to investigate the claims of any Half-breeds that may be found to be residing within the territory thereby surrendered" and who were entitled to be dealt with under s. 90(f) of the Dominion Lands Act, C.S.C. 1886. The grant of scrip to the Metis was to be made "in full and final settlement of any claim they may have by reason of their Indian blood." The Green Lake adhesion is significant for four reasons. First, it recognized that there was a need to extinguish Metis aboriginal title. Second, it established that the Metis and Indians living in an area of unceded land should be dealt with in one process. Third, it established the conceptual priority of the Indian claim: the Half-breed Commissioner could only deal with the Metis after the negotiations for the Indian treaty had been completed. Fourth, it contrasts the federal government's negotiated extinguishment of the Indians' aboriginal title

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against the unilateral imposition of extinguishment of Metis aboriginal title through a grant of scrip. Treaty No. 8 was negotiated in 1898-99 to extinguish the Indian title in the Athabaska and adjoining regions. An Indian treaty commission was set up by order-in-council on June 27, 1898. By an order-in-council of May 6, 1899, a Half-breed commission was established to extinguish the aboriginal title of Half-breeds permanently residing in the ceded territory at the time of the Indian treaty. The Half-breed and Indian Commissioners would travel together and deal concurrently with the two aboriginal peoples. The order provided: (1) That every Half-Breed occupier of land in the said territory be confirmed in possession to the extent of 160 acres. (2) That scrip redeemable in land, to the extent of $240, or at the option of the grantee, scrip entitling the grantee to 240 acres of land of the class open to homestead entry be granted to each Half-Breed found to be permanently residing in the said territory at the time of the Indian Treaty and not to have previously received scrip in extinguishment of his claim.(103) The grant of scrip to Metis in extinguishment of their aboriginal title was again unilaterally imposed by the federal government, while the Indian treaty was the product of negotiation. However, the terms of the order were more generous than previous grants. All Metis, both children and heads of family, were to receive $240 in money scrip or land scrip for 240 acres. Furthermore, the cut-off date was pushed back to the date of Treaty No. 8. The reason for the government's apparent generosity was political, and was outlined in the order-in-council: The Minister is convinced that to appoint Commissioners to deal with the Halfbreeds of the [Treaty No. 8] territory within the scope of this provision [i.e. only those residing in the North-West Territories before July 15, 1870] would tend to disturb, rather than satisfy the Half-Breeds, and would certainly cause them to use their great influence with the Indians as to make it extremely difficult, if not impossible to negotiate a treaty.[Emphasis added.] The order then referred to the co-existence of Indian and Metis aboriginal title: The Minister [of the Interior] submits that it seems to him moreover that the HalfBreeds of the territory referred to would have good reason to be dissatisfied. The 15th July, 1870, was selected as the date applicable to the Half-Breeds because it was the date of transfer from the Hudson's Bay Company. But the Half-Breeds of the District of Athabaska and adjoining country were not affected by the Transfer. Whatever rights they have, they have by virtue of their Indian blood; and the first interference with such rights will be when a surrender is effected of the territorial rights of the Indians. It is obvious that while differing in degree Indian and HalfBreed rights in an unceded territory must be co-existent, and should be properly extinguished at the same time. [Emphasis added](104)

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The Dominion Lands Act was amended in 1899 to reflect the fact that July 15, 1870 was no longer to be used as the cut-off date.(105) The revised section stated: 6. The Governor in Council may: -… (f) grant lands in satisfaction of claims of half-breeds arising out if the extinguishment of Indian title; (g) upon the extinguishment of Indian title in any territory or tract of land, make to persons satisfactorily establishing undisturbed occupation of any lands within such territory or tract of land on [January 1, 1899], and who were at the time … in actual peaceable possession thereof, free grants of such lands, provided that no more than [160] acres shall be so granted to any one person;(106) An order-in-council later specified that grants of scrip would be extended to all those born between July 15, 1870 and December 31, 1885. The procedure utilized to grant scrip to Metis in extinguishment of their aboriginal title in Treaty No. 8 lands, was repeated with Treaty No. 10 (1906) and the adhesion to Treaty No. 5 (1908). Metis rights were extinguished by a grant of scrip after the Indians had negotiated and signed their treaty. Metis, both children and heads of family, were offered a choice of $240 money scrip or land scrip for 240 acres. Metis aboriginal title in lands ceded under Treaty No. 11 (1921) was extinguished in a similar fashion except that the use of scrip was abandoned and the Metis were given a straight cash grant of $240. 5.2.3 Government knowledge of the failure of the scrip system in the North-West There are several indications that the federal powers were aware that the scrip system was not resulting in the transfer to the Metis of a land base, and the stability and income associated therewith.(107) The federal government knew of the hazards of the scrip system from the experience in Manitoba where a provincial law was passed as early as 1873 to protect Metis land claims from speculators. The failure of the system in Manitoba with particular reference to the predations of speculators was noted in several House of Commons Debates.(108) An excerpt from the annual report of the Department of the Interior, 1889, reveals that government officials were aware of the risks associated with scrip as a method of implementing the grant of land to the Metis: … the half-breeds of Manitoba and the North-West Territories have had their claims, as the descendants of the Indians, dealt with on precisely the same basis that is to say, all heads of families living at the time of transfer, have received $160 in scrip, and all the half-breed children born and living at the same date either 240 acres in land or $240 in scrip. Except for the Rev. Father Fourmond, the Roman Catholic priest in charge of the mission at St. Laurent, I found the missionaries of all churches unanimously

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opposed to this proposition. … The scrip distributed as a result of the work of the Commission of 1885-86-87, while in many cases effective in assisting industrious and economical half-breeds to buy stock and implements, left the great majority of the recipients poorer than before. In a few months the scrip had passed into other hands, and little or nothing remained to show for it. [Emphasis added](109) The order-in-council of December 28, 1895 reveals that the government was aware of the risks associated with scrip as a form of "land grant". The order provided for the lease from the Dominion of lands for an "industrial school" for Metis children. The school was to be established in Alberta and to be run by the Catholic church. The order was made in response to a petition from Father A, Lacombe on behalf of a group of Bishops of the Catholic church. Father Lacombe stated: … These half-breeds are in worse condition than the Indians who live on reserves under the tutorship of the Government. … I would first draw your attention to the subject of the present condition of the half-breeds of Manitoba and the North-West Territories. These unfortunate people have parted for a very small consideration, with the scrip which they received from the Government in commutation of their Indian rights, and the majority of them now find themselves utterly destitute.(110) A.M. Burgess, Deputy Minister of the Interior, to the Minister, recommended that the federal government accept Father Lacombe's proposal. Burgess describes the destitution of the Metis in some detail: According to reports received from time to time from officers of the North-West Mounted Police and the agents and officers of this Department, it is evident today that the state of the half-breed population of Manitoba and the North-West has not only not improved since the time of the transfer of the country to Canada in 1870 but that it has gradually become worse.… A certain percentage of the half-breeds formerly belonged to Indian bands, but with the want of foresight characteristic of the native races, and too often at the instance of interested speculators, they withdrew from treaty in order to receive scrip in extinguishment of such claims as they might have on account of their Indian descent. … Under such circumstances, and in view of the fact that the allegations made in the Memorial of Father Lacombe as regards the extreme poverty of a large proportion of [Metis], are unfortunately but too well founded, I am compelled to concur in the view expressed by the Reverend Father, that their condition is far worse in every respect than that of the Indians, and such as to inspire very grave apprehensions about their future. [Emphasis added](111) Burgess' report is useful because it describes the treatment of the Metis from a government perspective ("everything possible has been done by the Dominion Government to improve the condition of the half-breeds consistent with their own ideas of individual independence and freedom from supervision or control.") while noting that the government efforts had largely been unsuccessful due to the operation of speculators who bought up the scrip.

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5.2.4 Legislative Chronology - North-West Territories June 23, 1870 Rupert's Land and North-Western Territory Order assented to. The Order applies to all of the North-West Territories, including the province of Manitoba. By clause 14: "Any claims of Indians to compensation for lands required for purposes of settlement shall be disposed of by the Canadian Government in communication with the Imperial Government; and the [Hudson's Bay] Company shall be relieved of all responsibility in respect of them." Schedule A to the order states: "…the 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 its dealings with the aborigines." [Emphasis added] Schedule B of the Order states: "…it will be the duty of the [Canadian] Government to make adequate provision for the protection for the Indian tribes whose interests and wellbeing are involved in the transfer." May 15, 1879 Section 125(e) Dominion Lands Act, 1879 makes provision for the grant of land to Half-breeds to extinguish their aboriginal title.(112) January 28, 1885 By order-in-council, enumeration is ordered of Manitoba Metis resident in the NWT who are entitled to make claims under the Manitoba land grant.(113) March 30, 1885 By order-in-council, the Street Commission is authorized to grant lands to Half-breeds in bona fide possession up to 160 acres for heads of families and 240 acres for children born before July 15, 1870. Commission to issue money scrip or land scrip to Halfbreeds if necessary to make up the difference. For those Half-breeds in both classes who are not in bona fide possession, scrip to be granted redeemable in land. To avert further Metis unrest in the North-West Territories following the uprising at Duck Lake, the January 28, 1885 order is cancelled; instead the Commission is to enumerate all Metis in North-West Territories who are entitled under s. 81(e) of Dominion Lands Act, 1883.(114) April 18, 1885 Amendment of the order of March 30, 1885. Lands granted in settlement of their claims as settlers are to be in addition to their grants in extinguishment of title. Halfbreed children will be granted a certificate entitling them to select 240 acres of unoccupied Dominion Crown lands. The heads of family are entitled to $160 or 160 acres.(115) March 1, 1886 Roger Goulet is appointed sole commissioner to investigate claims preferred under s. 81(e) of the Dominion Lands Act, 1883 of those Half breeds who were unable to appear before the Commission the previous year.(116) April 13, 1886 Order clarifies that children of Half-breed heads of families may choose either money scrip for $240 or land scrip redeemable in 240 acres of land.(117)

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December 14, 1888 Government nears completion of negotiations with Indians in area ceded by Indians' adhesion to Treaty No. 6. Grants are extended to any Metis residing in the territory ceded by adhesion to Treaty No. 6. Half-breed commission is to issue land scrip or money scrip to Metis "in full and final settlement of any claim they may have by reason of their Indian blood." Money scrip for $240 or land scrip for 240 acres is granted to Metis children. $160 in money scrip to Metis heads of family.(118) March 18, 1889 Half-breeds resident in territory which has not been ceded by Indians through treaty (and hence technically does not come within the Dominion Lands Act) are allowed to make claims in extinguishment of their aboriginal title under the same terms as those Half-breeds who claim settlement under the Dominion Lands Act. This practice is will be repeated several more times over the next several years.(119) March 24, 1891 Order rejects NWT Legislative Assembly's proposals to extend the grant to those Metis born between July 15, 1870 and 1885, and to appoint a judge as permanent commissioner to adjust and investigate Half-breed claims.(120) March 12, 1892 Deadline for filing claims under s. 90(f) of the Dominion Lands Act is set for May 1, 1894. This order cites the numbers of claims that have been processed by the Half-breed commissions.(121) December 28, 1895 Authority granted to Father Lacombe to establish an industrial school and reservation at St. Paul des Metis "with a view to the betterment of the present destitute condition of a majority of the Half-breed population of Manitoba and the North-West Territories".(122) March 20, 1897 Previous to this order, entry for lands selected by the Half-breed child had to be made in person. By this order, any holder of land scrip, so long as he is able to establish that he came by it honestly, is allowed to enter lands in his own name.(123) May 6, 1899 Half-breed claims in Treaty No. 8 lands to be heard by the commission which was negotiating the treaty with the Indians. Every Metis, child and head of family alike is to receive money scrip for $240 or land scrip redeemable in 240 acres of land. All Metis resident in the area ceded on the date of the treaty are eligible. Powers of attorney now accepted for delivery of scrip notes. Provision is also made to extend the grant of scrip to Metis born in the North-West Territories between July 15, 1870 and December 31, 1885.
(124)

March 2, 1900 Grants of scrip extended to children of the Manitoba Half-breeds born between July 15, 1870 and end of 1885. "[These children] do not appreciate the difference between their position and that of children of NWT half-breeds proper … it is part of the wisdom to go beyond the letter of the obligation of the State towards them in order to ensure the entire satisfaction of all the Half-breeds…"(125)

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March 13, 1900 Commissioners authorized to accept powers of attorney "upon their being satisfied that the agreement under which the assignment was made or the power of attorney given does not operate to the disadvantage of the Half-breed…"(126) March 16, 1901 Deadlines for filing Half-breed claims in original province of Manitoba and in the NWT are set aside and Commissioner given authority to deal with late claims plus claims in the "Province of Manitoba as now constituted which was not included in the Province" as constituted under the Manitoba Act. Public notice to be given that "all claims to land or scrip on account of the aboriginal title of the Half-Breeds in the portion of Manitoba as aforesaid" and in the NWT must be presented to the Commissioner, not the Department of the Interior.(127) August 13, 1904 Half-breeds who have taken up residence in the United States but are otherwise eligible to receive scrip are confirmed in their vested right to scrip. In the case of conflicting claims from assignees of scrip, the assignee whose assignment is filed first shall be held to be the legal assignee. This latter provision is rescinded by order dated December 17, 1904.(128) June 21, 1905 Judge Robert Hill Myers appointed to investigate any fraudulent practices or irregularities of one R.C. Macdonald, "charged with having irregularly obtained by misrepresentations, the rights of certain Half-breed residents of the United States" to their grant of scrip.(129) January 6, 1906 Judge Myers' reports on the R.C. Macdonald inquiry are accepted and Myers' recommendations approved.(130) July 20, 1906 "It is in the public interest that the whole of the territory included within the boundaries of the Provinces of Saskatchewan and Alberta should be relieved of the claims of aboriginees…" McKenna appointed Commissioner to "treat" with Indians and determine claims of Half-breeds permanently residing in territory ceded under Treaty No. 10. Recommended that the Treaty with the Indians provide for: reserve lands, annuity, provision for education of their children, assistance in establishing Indians in farming and stock-raising. Indians who choose not to live on the reserve to be granted lands together (160 acres each) "with a proviso as to non-alienation without consent of Governor in Council." Half-breeds to receive $240 money scrip or 240 acres land scrip.(131) April 6, 1907 Half-breeds permanently residing in lands under adhesions to Treaty No. 10 may claim scrip in extinguishment of their claim to aboriginal title.(132) May 12, 1908 Half-breeds may claim scrip in extinguishment of their claim to aboriginal title in lands ceded under adhesion to Treaty No. 5.(133) April 12, 1921 Grants of $240 cash authorized to Half-breeds permanently residing in lands ceded under Treaty No. 11 in extinguishment of aboriginal title.(134)

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June 30, 1923 Dominion Land Act amended to authorize the Governor in Council to make cash grants "not exceeding in any case the sum of [$125] in cash in satisfaction of claims of half-breeds arising out of the extinguishment of the Indian title" instead of a grant of land or scrip.(135) 6. EXTINGUISHMENT OF METIS ABORIGINAL TITLE 6.1 Theoretical Capability to Extinguish Metis Aboriginal Title There are three ways in which extinguishment of Metis aboriginal title could have occurred: through cession (surrender), through a statutory taking or through conquest.(136) Each will be assessed as a theoretical possibility absent the frauds and abuses against the Metis interests. 6.1.1 Through Cession (Surrender) An aboriginal group may cede or sell lands in its possession to the Crown, thus surrendering its rights in accordance with the terms of an agreement. This is the method which was consistently used by the Crown with respect to Indians after the Royal Proclamation of 1763. For cession to occur, there must be a) a negotiated agreement, which was b) concluded voluntarily by the group, and c) with knowledge of the significance of the transaction.(137) On its face, the Manitoba Act appears to have been consensual. Riel's provisional government sent three delegates to Ottawa to negotiate. The result was sections 31 and 32 of the Manitoba Act. The first two conditions necessary for extinguishment of Metis aboriginal title appear to be present, i.e. there was a negotiated agreement which was concluded voluntarily by Metis representatives. However, arguably, the third condition necessary for extinguishment through cession is not met, i.e. the Metis did not have full knowledge of the significance of the transaction. The Manitoba Act left the implementation of the s. 31 land grant and of s. 32 in the hands of the federal government. Had the Metis known how the grant of land was to be made, it is unlikely that they would have endorsed the agreement. Without knowledge of the implementation scheme and its outcome, the Metis could not understand the significance of entering into an agreement for extinguishment of their aboriginal title. A second argument against extinguishment of Metis aboriginal title through cession relies on the fact that if the quid pro quo of a treaty or agreement is not forthcoming, then the agreement is void. Constitutional texts such as s. 31 and 32 of the Manitoba Act are not self-executing. They require legislation and the establishment of administrative machinery to be implemented. Where the machinery set up to implement the constitutional provision is an integral part of the constitutional promise, and is foreseen to be an integral part of the constitutional promise, the integrity of the machinery is relevant to satisfaction of the government's constitutional obligation. If the machinery is defective to the point that the promise is not achieved, the agreement is nullified. In the case of the Manitoba Act, the administrative machinery which was supposed to carry out the constitutional promises was

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faulty. The Metis did not receive the quid pro quo which they had negotiated under the Manitoba Act. The quid pro quo to be received in exchange for extinguishment was nullified. This nullifies the agreement itself and with it, nullifies extinguishment of Metis aboriginal title. A third argument against the extinguishment of Metis land rights through cession of Metis aboriginal title in the area covered by the Manitoba Act relies on the interpretative principles described earlier. Treaties and other agreements between government and aboriginal groups must be liberally construed in favour of the aboriginal group. They must be "construed, not according to the technical meaning of [their] words … but in the sense in which they would naturally have been understood by the Indians."(138) The Metis understood from the government's verbal and written assurances that they would receive lands en bloc and have their interests protected from the influx of settlers in return for surrender of their aboriginal title. If the government did not fulfil the terms of the agreement which the Metis understood to be in place, then the agreement is void because the Metis did not receive the expected quid pro quo. The purported extinguishment of Metis aboriginal claims in the remainder of the NorthWest Territories appears to have been as a result of unilateral government action. The Metis, in the North-West Rebellion, signified their dissatisfaction with the absence of government recognition of their rights. The Metis were dispersed through a use of force, and the Metis leader, Riel, executed. There was no negotiation by which the Metis in the North-West agreed to have their aboriginal title extinguished. A system was implemented unilaterally by the government in the system recognized Metis aboriginal title. The system also purported to extinguish Metis aboriginal title by unilateral act of Canada, the order-incouncil of March 30, 1885, under authority of the Dominion Lands Act. Government policy with respect to the Metis stands in sharp contrast to its policy with respect to Indians. Indians negotiated treaties, thereby ceding their lands through consensual dealings with the Crown as required by the Royal Proclamation. The Metis were granted scrip in extinguishment of their aboriginal title. The contrast is nowhere more evident than in relation to extinguishment of Metis aboriginal title in lands in the NorthWest Territories which were ceded by the Indians through treaty. The practice was established when the government negotiated the adhesion to Treaty No. 6 with the Indians. By order-in-council of December 14, 1888,(139) the Commissioners who were negotiating the treaty with the Indians at Green Lake were empowered "upon the execution of the surrender by the Indians to investigate the claims of any Half-breeds that may be found to be residing within the territory thereby surrendered…" The federal government recognized that the Indians' aboriginal title could only be extinguished through negotiation. Evidently, the federal government did not recognize that Metis title likewise required negotiation before it could properly be extinguished. The government proceeded to extinguish Metis title unilaterally through a system that conferred no advantages on Metis, and which the government knew conferred no advantages on Metis. In many cases the system made the condition of the Metis worse. 6.1.2 Through Statutory Taking

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Prior to the enactment of the Constitution Act, 1982, aboriginal title, like other property rights, could in principle be statutorily expropriated. It can be argued that, before 1982, an aboriginal right was automatically extinguished to the extent that it was inconsistent with a statute. As Mahoney J. stated in Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development: Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. This is as true of an aboriginal title as of any other common law right.(140) In Sparrow, Dickson CJ. quoted the above passage from Baker Lake with approval. He went on to say: [In Calder, Hall J.] stated (at p. 404) that "the onus of proving that the Sovereign intended to extinguish the Indian title lies on the respondent [Crown] and that intention must be 'clear and plain'". (Emphasis added.) The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.(141) It is necessary that the statute express a clear intention to terminate Indian title, whether by specific word or necessary implication. Ambiguous terminology will be interpreted in favour of the aboriginal group.(142) In the Manitoba Act, the language clearly states that "it is expedient, towards the extinguishment of the Indian title to the lands in the Province". It appears that the Manitoba Act, which has constitutional force, purported to extinguish aboriginal title. On its face, the Manitoba Act constitutes a statutory taking, at least within the area of the original province. Neither the Rupert's Land and North-Western Territory Order nor its schedules are plain and clear on the issue. The Order speaks of "Any claims of Indians to compensation for lands required for purposes of settlement". Schedule A similarly refers to "the claims of the Indian tribes to compensation for lands required for settlement". Schedule B refers only to government responsibility for "the protection of Indian tribes whose interests and wellbeing are involved in the transfer". The language is not a plain and clear indication of the government's intention to extinguish the aboriginal title of any group. Therefore, it follows that these instruments, by themselves, do not constitute a statutory taking. The Dominion Lands Act, 1879 and a series of orders in council appear to have been Canada's attempt to discharge its obligations under the Rupert's Land and North-Western Territory Order and its schedules. The Dominion Lands Act, 1879 would appear, on its face, to meet the plain and clear test set out in Calder and subsequent cases. Section 125(e) states: To satisfy any claims existing in connection with the extinguishment of Indian title, preferred by half-breeds resident in the North-West Territories outside the limits of Manitoba, on the fifteenth day of July, one thousand eight hundred and seventy, by

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granting land to such persons, to such an extent and on such terms and conditions, as may be deemed expedient; The Rupert's Land and North-Western Territory Order has constitutional force, and sets out positive obligations for how Metis claims are to be dealt with. Schedule A mandates that Metis claims to aboriginal title are to be "considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines". The Dominion Lands Act and its progeny of orders-in-council thwarted the positive constitutional obligations mandated by Schedule A of the Order. Arguably, therefore, the Dominion Lands Act and its progeny do not constitute a statutory taking. The situation with respect to the Dominion Lands Act is analogous to that with respect to the Official Language Act, 1890. In the Manitoba Language Reference, the Supreme Court held that the Official Language Act, 1890 was ultra vires the province because it was contrary to the constitutional language provisions set out in section 23 of the Manitoba Act, 1870. The Official Language Act, 1890 was therefore held to be of no force or effect. By analogy, if the Dominion Lands Act and its progeny of orders-in-council were contrary to the constitutional obligations created under the Rupert's Land and North-Western Territory Order and its schedules, then section 125(e) of the Dominion Lands Act, 1879 and its progeny orders-in-council should also be of no force and effect. If such is the case, a statutory taking is not be possible. In summary, it would appear that a statutory taking is theoretically possible in the original province of Manitoba, absent the frauds and abuses which occurred. It would also appear that no statutory taking occurred in the North-West Territories for the reasons outlined above. 6.1.3 Through Conquest Before the Royal Proclamation of 1763, the British Crown sometimes conquered aboriginal territories in the course of war. However, conquest ceased to operate as a possible mode of acquiring aboriginal lands once the Crown gained sovereignty over the native peoples in question. As subjects of the Crown, such people would thenceforth be entitled to its protection. Their lands could not be seized by executive act, without authorizing legislation.(143) The Metis organized a resistance at Batoche, in the North-West Territories, in 1885. The resistance was suppressed by the Canadian government through the use of force. Some might argue that the Crown extinguished Metis aboriginal title through its actions. However, the Metis had already come under Crown protection through the Royal Proclamation and Schedule B of the Rupert's Land and North-Western Territory Order. It follows that the Crown could not seize title through conquest. 6.2 Actual Capability to Extinguish Metis Aboriginal Title

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We have analyzed whether the statutory scheme established by the Crown was theoretically capable of extinguishing Metis aboriginal title. It is now necessary to assess whether extinguishment actually occurred, in light of the historical and factual context surrounding the grant of scrip and land. The widespread frauds and abuses must be factored into any analysis. 6.2.1 Implication of the government in the frauds and abuses The seriousness of the ten-year delay in implementing s. 31 of the Manitoba Act must be viewed in light of the tremendous pressures on land from incoming settlers who complained to all levels of government about the land-lock caused by the Metis land reserve. The order-in-council of May 26, 1871 allowed incoming settlers to take up homestead on the unsurveyed lands, with the result that some lands regarded by certain Half-breeds as theirs were taken up by white settlers. The land-lock became a source of aggravation for both levels of government, particularly provincial, and an opportunity for the speculators operating in the province to make money. As early as 1873, before the final decision had been made regarding who was to be entitled to share in the s. 31 lands, the Manitoba government was apparently aware of the operation of speculators who were buying up Metis land rights. In its preamble to the Half-Breed Land Grant Protection Act,(144) the Manitoba Legislature outlined the rationale for implementing a law to invalidate any agreement to convey Half-breed lands before the Crown patent had issued: And whereas in consequence of the condition of the surveys in the Province not permitting the distribution of the said lands in manner as fixed by the Order in Council mentioned [April 25, 1871], and in the meantime very many persons entitled to participate in the said grant in evident ignorance of the value of their individual shares have agreed severally to sell their right to the same to speculators, receiving therefor a trifling consideration; And whereas it is expedient to discourage the traffic now going on in such rights, by protecting the interests of the persons entitled to share as aforesaid, until the Patent issue; Nonetheless, while apparently recognizing the vulnerability of the land grant scheme to speculation, the Manitoba Legislature subsequently passed several laws that facilitated speculation and removed existing common law protections of the Metis children's interests. In 1875, the Legislature amended the Half Breed Land Grant Protection Act such that if consideration had been paid to a Metis for his or her interest in land (this included a claim to land yet to be distributed) and the Metis did not pay back the consideration plus interest at 12 % p.a. within three months, the conveyance would be valid.(145) The federal Minister of Justice disallowed this act in 1876. In 1877, just as the actual distribution of lands to the Metis children began, the Manitoba Legislature passed another amendment which validated any sale for consideration "duly made and executed by deed … by any Half-breed having legal right to a lot of land as such

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out of the [1.4 million] acres".(146) The amendment allowed any Half-breed child to sell his or her interest in land. By this amendment, Metis children were effectively denied the common law protections relating to conveyance of property which applied to minors under the age of 21. The federal government did not disallow this amendment. The Legislature retreated somewhat from this laissez-faire stance with another amendment in 1878. The amendment provided that after February 2, 1878, only Metis children over 18 years of age could convey their interest in land, if voluntary and with parental consent.(147) Sales by any Metis children which had been made before February 2, 1878 were still valid. At the federal level, the Minister of Justice recommended against disallowance of this act because four years had passed since the passage of the original Half-Breed Land Grant Protection Act, and "during that time the half-breeds must, as a general rule, [have] become well-acquainted with the value of the interests in their lands."(148) It is significant that the federal government allowed this and other provincial acts to stand which placed land development interests ahead of the Metis rights in land, for as we have seen, the Minister of Justice had the power to disallow. The Department of Justice routinely reviewed each provincial bill. There is thus no room for an argument by the federal government that it did not know the extent of the Manitoba government's mishandling of the Metis problem. The federal government removed another impediment to the conveyance of land by Metis children by its order-in-council of July 4, 1878 which provided that Crown patents could issue "forthwith … to all claimants of Half-breed lands, irrespective of age or sex, whose claims have been approved…" The provisions of the April 25, 1871 order specifying that only children over the age of 18 could receive their patent, those younger having to wait until they reached that age, were rescinded.(149) The effect of this, when combined with the Manitoba acts, was to remove protections for infant Half-breed recipients of s. 31 lands. Abuses were apparently entailed in allowing 18-year-olds to sell. Chief Justice Wood, of the Manitoba Queen's Bench, wrote that the effect of the 1878 act was "to place the lands of all half-breeds 18 years of age and upwards absolutely at the disposal of the parents, with no check whatever."(150) In 1881, the Legislature passed An Act respecting Half-breed lands and quieting certain titles thereto.(151) Under the Act, deeds and powers of attorney executed by Half-breed children to s. 31 lands were to be considered valid even if made before issue of the Crown patent. The act also provided that no deed or power of attorney or other instrument was to be invalid by reason of there being only one witness thereto, and every court order for sale was deemed to be valid. Another act which had a particularly negative impact on the Metis was the Infant's Estate Act.(152) The act created a general power in the courts to allow sales of infants' estates without the child having to appear before a judge. The act was interpreted as being applicable to s. 31 Half-breed claims. Thus, a judge of the Court of Queen's Bench could, in chambers, dispose of Half-breed minors' claims. The monies from the sale were to be paid into court to be invested on the infant's behalf. Although of general application, given the presence of a predominantly Metis population involved in a massive 1.4 million-acre land grant to "children", in pith and substance, the law removed a common law barrier to

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the conveyance of the Half-breed children's interest in their lands. The following year the Legislature removed another protection by allowing the court in its discretion to pay any portion or the whole of the monies accruing from a sale directly into the hands of the infant, or the parents or guardian.(153) The Court of Queen's Bench, a federally-appointed court, was also implicated in the frauds surrounding Metis lands. A commission of inquiry was precipitated in October, 1881, when lawyer Edmund Marter Wood, the son of the Chief Justice, obtained his father's approval for a batch of sale orders, having been refused earlier in the day by the chambers judge. The result was the appointment on October 28, 1881 of a commission "to enquire into the administration of Justice in this Province as to Infants' lands or estates." Counsel for the commission described the court's practice as "characterized by an almost utter recklessness and disregard of the Court's Wards." He also stated: In the making of these orders, the learned Judges have dispensed with every one of the safeguards provided by the terms of the Act and by the general orders for the protection of the interests of the infants. They have been made upon petitions presented in the names of the infants and one or other of their parents as next friends but really by the purchaser from them. The petitions and affidavits in support of them have been, almost invariably, prepared by the purchaser himself or by his solicitor. They contain almost no information as to the circumstances of the infant or his estate. They are almost all identical in form and substance, nearly always printed.…"(154) After the inquiry, none of the legislation was rescinded. Although the allotment of the 1.4 million acres of land had ended in 1880, issuance of scrip to the children who had been overlooked continued well into the 20th century. There is no reason to believe that the abuses ceased during this period. The historical record shows that speculation in the Manitoba Metis scrip was prevalent and problematic. The situation was summed up in a Commons debate by Joseph Royal, the member for Provencher: … Under the Manitoba Act as stated the half-breeds were entitled to have a certain lot of land for the extinguishment of the Indian title. A reserve, comprising 1,400,000 acres of land, was set apart for the purpose. But long were the delays. … so long were the delays in the apportionment of those reserves, and so protracted the issue of letters patent, that the people became doubtful of the good faith of the Government, and they were easily induced by speculators to sell their rights to the land. They were canvassed by those speculators, who informed them that it would take many years to get possession of their 240 acres;… I suppose hon. gentlemen opposite know something about that, for I believe that some of them and some of their friends own several thousand acres of those reserves.(155) Flanagan, who takes the position that the government fulfilled its obligations to the Metis, nevertheless describes a flourishing market in scrip:

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The scrip market became very highly developed in a short period of time. Investors from inside and outside the province placed blocks of money with agents who did the actual purchasing. Real estate brokers, lawyers, and other merchants placed advertisements in local newspapers offering to buy and sell scrip notes.(156) John A. Macdonald, in a speech to the House of Commons, described in graphic detail the result of the land grant scheme as it was implemented in Manitoba by the then Liberal government: The claims of the half-breeds in Manitoba were bought up by speculators. It was an unfortunate thing for those poor people; but it is true that this grant of scrip and land to those poor people was a curse and not a blessing. The scrip was bought up; the lands were bought up by white speculators, and the consequences are apparent. I am told that even at this moment, in the vicinity of Winnipeg, instead of the surrounding country comprising smiling farms, settled with industrious people, the land is unsettled, in consequence of the scrip having been bought up for a song by speculators.(157) It is apparent that speculation in Metis lands was i) a problem; ii) which both levels of government recognized; and iii) which neither level of government seriously tried to control. In fact, both levels of government exacerbated the problem of speculation in Metis lands. It can be seen that the Manitoba government, in particular, was motivated to encourage settlement at the expense of the Metis land grant, and made laws which removed existing common law protections of the children's interests. The federal government allowed Manitoba to do so. The federal government approved a land grant system to the heads of family and "supplementary" children based on scrip, in the knowledge that speculation was inevitable. The land grant system in the North-West Territories was conceived late enough in the day that all government actors ought to have clearly recognized that scrip as a method of granting lands posed an unacceptable risk to Metis interests. Nevertheless, by an order-incouncil dated March 30, 1885, the federal cabinet provided that the land grant scheme in the North-West Territories would be based on scrip.(158) 6.2.2 The Crown's Breach of its fiduciary duty The obligation imposed on the government of Canada by virtue of its fiduciary relationship with the Metis is a strict one. At the very least it involves an obligation not to discriminate. It is an obligation that would have required the government of Canada in 1870 and onwards to treat the Metis in the same manner as it treated other aboriginal peoples in the same situation.(159) This would have involved providing an opportunity to negotiate extinguishment of Metis aboriginal title in a manner similar to that afforded to Indian tribes in the North-West Territories and Manitoba. The government had an obligation to deal with the Metis in a manner consistent with past and contemporaneous Crown practices.

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As noted supra, the federal government did not give the Metis an opportunity to negotiate the terms of the surrender of their aboriginal title as it did with the Indian tribes.(160) In Manitoba, although it can be argued that the Metis negotiated the quid pro quo for the surrender of their aboriginal title which resulted in sections 31 and 32 of the Manitoba Act (i.e., the grant of land and confirmation of title to occupied lands), the federal government implemented the Act unilaterally, and in a manner which did not deliver the quid pro quo. The Metis believed they would receive lands they had occupied before transfer to Canada, in accordance with the usage of the country, and a reserve of 1.4 million acres of land which would ensure the survival of their language and culture against the onslaught of settlers. Applying a liberal construction to the Manitoba Act and a strict obligation on the government to comply with the negotiated bargain, as understood by the aboriginal group, the Metis did not receive what they had bargained for. In the North-West Territories, the federal government acted unilaterally to extinguish Metis aboriginal title, contrary to the practice of negotiating treaties which had been used with Indian tribes since the Royal Proclamation of 1763. In doing so, the federal government discriminated against the Metis. Indian tribes negotiated the surrender of their aboriginal title through treaty. In return, they received reserve lands, perpetual annuities, farm implements, livestock, schools, instructors, etc. Indians retained their hunting and fishing rights on surrendered lands. Indians came under the protection of the federal government. Their reserve lands, which became their collective homelands, were held in trust by the Crown until such time as they were voluntarily surrendered. In stark contrast, each Metis received at most a grant of 240 acres of land as a once-and-for-all settlement of his or her claim to aboriginal title. The land grant was downgraded to a grant of scrip in the NorthWest Territories and ultimately to an outright cash grant in 1923.(161) The Metis did not retain their hunting and fishing rights in the territory where title was purportedly extinguished. In 1930, after the signing of the Natural Resources Transfer Agreements, the federal government ceased to exercise its obligations to protect the Metis as "Indians" under s. 91(24) of the Constitution Act, 1867.(162) The Natural Resources Transfer Agreements, which were entered into by Canada and the three prairie provinces in 1930, are another indicator of the uneven manner in which the federal government treated the Metis compared to Indians. The agreements were given constitutional status by an amendment to the Constitution Act, 1930. By the Agreements, the federal government limited provincial competence to make laws applicable to Indians. The following clause is to be found in the agreement with Alberta (clause 12), Saskatchewan, (clause 12) and Manitoba 13): In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them of hunting, trapping and fishing for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

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Although the clause has been frequently applied or interpreted by the courts in respect to Indians,(163) the caselaw has not revealed a like application to protect Metis interests from provincial interference. Provincial laws which would therefore be inapplicable to Indians' hunting, trapping and fishing rights would be effective and enforceable against Metis. Following the N.R.T.A. the Federal Government ceased issuing scrip and ceased making any other provision for the Metis people. Effectively, without discharging its obligations to the Metis, and knowing that the Metis were in a state of abject poverty, and without establishing any institutions to address this problem, the Federal government consigned the Metis to a constitutional no-man's land. To this day both Federal and Provincial governments deny constitutional responsibility for the Metis. Metis problems, therefore, remain unaddressed to government. This clearly is a breach of the governments fiduciary responsibility, as well as a failure to fulfil government's constitutional obligation under the 1869 Order. The fiduciary obligation imposed on the federal government extends further than a duty not to discriminate against the Metis. It involves an obligation to act for the benefit of the Metis and to take whatever measures are appropriate in light of their particular circumstances. In Manitoba, the federal government delayed the implementation of a land grant scheme and allowed speculators to exploit the Metis. Through its own orders-incouncil, the federal government denied claimants under s. 32 of the Manitoba Act their right to occupied lands and removed protections of Metis children's interests.(164) The federal government was aware that the Manitoba government had enacted legislation which was detrimental to Metis interests and did not exercise its power to disallow the provincial legislation in order to protect those interests. The federal government breached its fiduciary obligation to the Metis to act in their best interests. In the North-West Territories, the federal government appeared to act in good faith to ensure that individual Metis received their grant of scrip. Nonetheless, the federal government was aware, or ought to have been aware, that the scrip system was fundamentally flawed. The federal government breached its fiduciary obligation to the Metis by unilaterally implementing a system which it knew, or ought to have known, would ultimately leave the Metis without a land base and the other benefits which Indian tribes received. 6.2.3 The Crown's Breach of its positive constitutional obligations Sections 31 and 32 of the Manitoba Act imposed a positive constitutional obligation on both the federal and provincial governments to grant a reserve of 1.4 million acres of land to the Metis children in Manitoba and to confirm title of occupiers of land before transfer to Canada. It can be argued that both levels of government met their constitutional obligations since, on the face of it, 1.4 million acres of land were granted to the Metis children and provision was made for confirmation of title by the occupiers of land before the transfer. However, both levels of government were implicated in frauds and abuses by speculators which resulted in the dispossession of the Metis children's lands. Both levels of government, particularly the Manitoba government, passed laws which facilitated the

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dispossession of the Metis of their lands and scrip by speculators. With regard to the confirmation of titles, the federal government by its order-in-council of April 20, 1876 effectively denied claimants their occupied lands by specifying that the lands had to have been surveyed, instead of accepting the customary practice of staking land as was contemplated by the Metis during their negotiations.(165) Arguably, therefore, neither level of government met the positive obligations imposed by the Manitoba Act. Whether the Manitoba Act was meant to extinguish Metis aboriginal title in all of the North-West Territories, or just within the original province of Manitoba as it existed at the time of the transfer to Canada, neither level of government met the constitutional obligations imposed by the Act and therefore those constitutional obligations are still outstanding.(166) Clause 14 of the Rupert's Land and North-Western Territory Order imposed a positive constitutional obligation on the federal government to dispose of "any claims of Indians" to compensation for lands required for settlement. Schedule A of the Order required the federal government to settle claims of the aboriginal peoples "in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines". As noted earlier, federal government policy with respect to the Metis in the North-West territories stands in stark contrast to the policy employed with respect to the Indian tribes since the Royal Proclamation of 1673. Indians negotiated treaties, thereby ceding their lands through consensual dealings with the Crown. The federal government unilaterally declared that it would grant scrip in extinguishment of Metis aboriginal title. Indian tribes received a range of benefits, which included a land base, ongoing Crown protection and retention of hunting and fishing rights. In contrast, scrip was the only "benefit" conferred on the Metis. It appears that the federal government did not meet the positive constitutional obligations imposed by the Rupert's Land and North-Western Territory Order and its schedules. 6.3 Conclusion with respect to extinguishment of Metis aboriginal title We have assessed the land and scrip granting schemes which were implemented in Manitoba and the North-West Territories to determine whether they were theoretically capable of extinguishing Metis aboriginal title. We have concluded that extinguishment did not occur through cession (surrender) or through conquest. Nor does it appear that the Rupert's Land and North-Western Territory Order or the Dominion Lands Act were capable of extinguishing Metis aboriginal title through a statutory taking. However, it would appear that the Manitoba Act was theoretically capable of constituting a statutory taking, at least in the original province of Manitoba. If the Manitoba Act is interpreted as working to extinguish the aboriginal title of the Metis peoples as a whole, then it is theoretically possible that a statutory taking occurred throughout the North-West Territories and Manitoba, absent the frauds and abuses that occurred. When the frauds and abuses are factored in (as they must be), it is apparent that the federal government breached its fiduciary obligation to the Metis in the North-West Territories and Manitoba. The promised quid pro quo for extinguishment of Metis aboriginal was not received. This nullifies extinguishment. Furthermore, both levels of government breached the positive constitutional obligations imposed by the Manitoba Act and the Rupert's Land

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and North-Western Territory Order and its schedules. Those positive constitutional obligations remain outstanding. 7. REMEDIES However the Metis land cases are ultimately framed, they will raise exceptionally large issues. If a Metis land claim is founded on the process of administration under s. 32 of the Manitoba Act with respect to the old settler lots along the Red and the Assiniboine rivers, the land titles relating to most of the city of Winnipeg will be the called into question. These are the most valuable lands in Manitoba. If a Metis land claim is based on s. 31 of the Manitoba Act, the security of titles in a huge area of Manitoba will be called into question. If a Metis land claim impeaches the script system as an infringement of the constitutional right to fair and equitable treatment promised in the Rupert's Land and North-West Territory Order, the security of land titles throughout much of Saskatchewan, Alberta and the North-West Territories will be called into question. A disturbance of this magnitude of the Canadian land mass really is a wholesale challenge to the Canadian legal order. However the Metis cases are ultimately framed, the problem of remedy will raise challenging questions of constitutional law, and concentrate attention on the limits of court intervention. As a prelude to considering the problem of remedy, we might begin with a few observations of a general nature. Most constitutional prescriptions act negatively. They prohibit Government from interfering with certain protected activities. Where Government transgresses these constitutional prescriptions, constitutional law dictates that "an act of the legislature, repugnant to the constitution is void;" (Marbury v. Madison, 5 U.S. 137, and see s. 52(1) of the Constitution Act, 1982). The constitutional violations which allegedly underlie the Metis Land claims differ from these more familiar constitutional prescriptions. The relevant constitutional provisions do not act negatively in the sense of prohibiting government interference with certain conduct. Rather, the constitutional texts act positively. The constitutional texts affirmatively require government to establish legislative and administrative machinery to confer land benefits on the Metis, or to design "fair and equitable" processes by which the aboriginal entitlements of the Metis people are to be settled. Because government did not perform these positive obligations, there is nothing for a court to invalidate or to rule void. It is difficult to apply the well understood theory of invalidity of unconstitutional laws which inheres in s. 52 of the Constitution Act, 1982. Although wholesale challenges to Canada's constitutional structure are not unknown to Canadian constitutional law (see Reference re Manitoba Language Rights),(167) the problem of how to remedy the constitutional violation giving rise to such a challenge is novel and difficult. The theory of how courts should enforce positively acting constitutional prescriptions is very much undeveloped in Canadian constitutional law. United States courts have aggressively provided mandatory and prohibitory relief in civil rights cases which utilize

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machinery which has come to be called 'the structural injunction'. By use of the structural injunction, the courts exercise a broad or remedial power to impose precise positive duties to act on government. Government is required to provide funds to implement a detailed wide ranging court order. The Court's order affects millions of people. It reorders priorities for the expenditure of public funds. The Court's order can be so detailed and wide ranging in that it is indistinguishable from legislation. It may well be that a court will be required to invent a structural injunction of this type to provide an adequate remedy for the alleged constitutional violation of Metis land rights. If such a far reaching remedy becomes necessary, it would be important to ask: what did the original constitutional guarantees supposedly secure to the Metis people? An appropriate remedy should be designed, "as all remedies, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct;" Milliken v. Bradley, 418 U.S. 717, 746 (1974). From this perspective, it would appear that the Manitoba Act was designed to assure to the Metis people a Metis land base upon valuable river-front traditionally occupied by the old settlers. This land base was to be enlarged by providing 1.4 million areas of additional lands for Metis children. The purpose of the constitutional guarantee was to provide a secure title to these lands to the Metis community. The constitutional guarantees foresaw that the established Metis community would continue undisturbed on its historic land base. In Western Canada outside of Manitoba, the purpose of the constitutional guarantee in the Rupert's Land and North-Western Territory Order was to acknowledge on behalf of a colonizing power that the land on which it was encroaching was inhabited. The constitutional guarantee of "fair and equitable dealing" addressed the problems associated with colonization and coexistence of two different political and social systems. The guarantee of fair dealing restricted the Canadian government from brutality. It required Canada to treat aboriginal peoples according to those fundamental principles of justice which had traditionally guided British conduct when Britain attempted to secure the friendship and cooperation of aboriginal peoples. While it is challenging for the constitutional lawyer to formulate a remedy designed to deal with the alleged constitutional violation of Metis land rights, it might be thought that a more important role for designing the remedy lies with the Metis people. All plaintiffs are required to state what they feel would best place them in the position they would have occupied had it not been for the illegal and unconstitutional conduct of government. Before a court can grant a remedy, it would be well for the Metis people to articulate a vision of their place in Canada. If this vision is sufficiently detailed, including remedial economic institutions, remedial political institutions, remedial educational, health, and other social institutions, it may be that the remedy for the large scale violation of their land rights may proceed from a theory that the constitutional violation deprived the Metis people of their rightful place in Canadian society. It may be that a court could restore the Metis people to their rightful place in Canadian society by a structural injunction.
1.

Professor, Faculty of Law, University of Ottawa. I acknowledge with gratitude the thoughtful, energetic and invaluable collaboration of my friend and research assistant, Nancy Thomson, University of Ottawa Law School, class of 1994, in the preparation of this paper.

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2.

The term Metis is used to apply equally to French or English mixed-race persons. In section 1 of the Metis Nation Accord, which is contained as an addendum to the Charlottetown Accord, the Metis National Council defines "Metis" as an "aboriginal person who self-identifies as Metis, who is distinct from Indian and Inuit and: 1) is a descendant of those Metis who received or who are entitled to receive land grants and/or scrip under the provisions of the Manitoba Act, 1870, the Dominion Lands Acts as enacted from time to time or 2) a person of aboriginal descent who is accepted by the Metis Nation. The Native Council of Canada defines Metis as any person of mixed Indian and white blood. The term "Half-breed" is used only where the historical context necessitates.
3.

Archer Martin, The Hudson's Bay Company's Land Tenures and the Occupation of Assiniboia by Lord Selkirk's Settlers (London: William Clowes and Sons, Ltd., 1898) at 27.
4.

For an outline of the various historians' approaches, see D. Sprague, Canada and the Métis, 1869-1885 (Waterloo, Ontario: Wilfred Laurier University Press, 1991) c. 1 [hereinafter Canada and the Metis].
5.

Canada and the Metis, supra note 3.

6.

Pursuant to section 1 of the Temporary Government of Rupert's Land Act, 1869, Rupert's Land and the North-Western Territory were to "be styled and known as 'The North-West Territories'".
7.

The issue of Metis aboriginal rights is dealt with comprehensively by Louise Mandell in her "Submission to the R.C.A.P. Regarding Land Rights of the Metis," which forms a parallel submission to the Royal Commission on Aboriginal Peoples.
8.

Report of the Honourable W.A. MacDonald of the Alberta District Court on the Exclusion of Halfbreeds from Treaty Lists, August 7, 1944.
9.

Calder v. The Queen, [1973] S.C.R. 313 at 328 and 375. Guerin v. The Queen (1985), 13 D.L.R. (4th) 321 (S.C.C.).

10.

11. Calder v. A.G.B.C., supra note 8 at 402-404. 12. R.S.C., 1985, App. II, No. 1. 13. (1888), 14 App. Cas. 46 (P.C.). 14. [1973] S.C.R. 313, 34 D.L.R. (3d) 145. 15. Johnson and Graham's Lessee v. McIntosh (1823), 21 U.S. 240. See also, Cherokee Nation v. State of
Georgia, 5 Peters 1 (1831), Worcester v. State of Georgia (1832), 31 U.S. 530.

16. Ibid. at 394-94. 17. Canada and the Metis, supra note 3 c. 2 and 3. 18. R.S.C. 1985, App. II, No. 9. The Order applied to all of the former Rupert's Land and North-Western
Territory, except for the "postage stamp" province of Manitoba, the former District of Assiniboia located in the southernmost portion of Manitoba. The North-West Territories comprised present-day Saskatchewan, Alberta, the northern portion of present-day Manitoba, what is now northern Ontario and northern Quebec, and most of the present-day North-West Territories. In 1881, the boundary of Manitoba was extended north

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by An Act to provide for the Extension of the Boundaries of the Province of Manitoba. In 1912, the boundaries of Manitoba were again extended to their present-day location.

19. An address to the Queen by the Senate and House of Commons of Canada, made December 1867
asking the Queen to unite Rupert's Land and the North-Western Territory with Canada.

20. The "agreement" referred to was an agreement between representatives of Canada and the Hudson's
Bay Company which contained a clause identical to that which was later included in the Order as clause 14, cited supra.

21. (1973), 6 W.W.R. 97 at 136 (N.W.T. S.C.). Neither the N.W.T. Court of Appeal nor the Supreme
Court of Canada, both of which heard an appeal of this case, commented on this point. As further evidence of its constitutional character, the Order was included in the list of constitutional amendments in a White Paper published in 1965 by the then Minister of Justice for Canada, under the title of "The Amendment of the Constitution of Canada".

22. PAC, Macdonald Papers, Incoming Correspondence, pp. 40752, 40753, McDougall to MacDonald, 31
October 1869, as cited by Sprague, Canada and the Metis, supra note 3 at 41.

23. R. v. Sioui, [1990] 1 S.C.R. 1025 at 1043-44. 24. In Dumont v. A.G. Canada (1988), 52 D.L.R. (4th) 25 at 30, O'Sullivan J.A. (in dissent) characterizes
the Manitoba Act as "a treaty which was entered into between the delegates of the Red River settlement and the Imperial authority".

25. The Dominion Lands Act was first enacted in 1872. No provision was made in the Act for Half-breeds
or extinguishment of Half-breed Indian title until the 1879 enactment of s. 125(e).

26. Schedule B states. "That the Governor in Council be authorized and empowered to arrange any details
that may be necessary to carry out the terms and conditions of the above agreement."

27. An Act to provide for the extension of the boundaries of the Province of Manitoba, S.C. 1881, 44 Vict,
c. 14, An Act to provide for the extension of the boundaries of the Province of Manitoba, S.M. 1881, 44 Vict. c. 1 and An Act to provide for the extension of the Boundaries of the Province of Manitoba, S.C. 1912, 2 Geo. V c. 32, An Act to provide for the Further Extension of the Boundaries of the Province of Manitoba, R.S.M. 1913 c. 18.

28. Order-in-council of March 30, 1885, P.C. 688. 29. Côté, The Interpretation of Legislation in Canada, 2d ed. (Cowansville: Les Éditions Yvon Blais,
1991) at 445. See Cape Brandy Syndicate v. Inland Revenue Commissioners, [1921] 2 K.B. 403 at 414 per Sterndale L.J.: "I think it is clearly established in Attorney General v. Clarkson that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put on an earlier Act where that earlier Act is ambiguous." See also Hayes v. Maywood, [1959] S.C.R. 568 and Corporation of Goulbourn v. Ottawa Carleton, [1980] S.C.R. 496.

30. House of Commons Debates, 1870 at p. 1355. 31. In 1879, section 3(3)(e) of the Indian Act, 1876 was amended by adding: And any half-breed who may
have been admitted into a treaty shall be allowed to withdraw therefrom on refunding all annuity money

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received by him or her under the said treaty, or suffering a corresponding reduction in the quantity of land, or scrip, which such half-breed as such may be entitled to receive from the government.

32. C. Chartier, "Indian: An Analysis of the Term" (1978) 43 Sask. L. Rev. 37 at 68. 33. Schwartz, First Principles: Constitutional Reform with Respect to the Aboriginal Peoples of Canada,
1982-84 (Institute of Intergovernmental Relations, 1985).

34. Re Eskimos, [1939] S.C.R. 104 35. R. v. Rocher (1982), 3 C.N.L.R. 122 (N.W.T. Terr. Ct.) 36. Minister of Home Affairs et al. v. Fisher et al., [1980] A.C.319 at 329 (P.C., Bermuda). 37. Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97. 38. R. v. Big M Drug Mart, [1985] 1 S.C.R. 295. 39. Reference Re B.N.A. Act and Senate (1979), 30 N.R. 271 at 282 (S.C.C.). 40. Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714. 41. R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1102. 42. R. v. Sioui, [1990] 1 S.C.R. 1025 at 1049. 43. Nowegijick v. The Queen, [1983] 1 S.C.R. 29. 44. Simon v. The Queen, [1985] 2 S.C.R. 387. 45. R. v. Horseman, [1990] 1 S.C.R. 901. 46. Letter from Sir George E. Cartier, federal government representative, to Father Ritchot, as described in
Flanagan, Metis Lands in Manitoba, (Calgary: University of Calgary Press, 1991) at 44-45 [hereinafter Metis Lands].

47. F. Tough, "Buying Out the Bay: Aboriginal Rights and the Economic Policies of the Department of
Indian Affairs after 1870", The First Ones, Miller et al., eds., (Piapot Reserve: Saskatchewan Indian Federated College, 1992), Tough, "Aboriginal Rights Versus the Deed of Surrender: The Legal Rights of Native Peoples and Canada's Acquisition of the Hudson's Bay Company Territory", 17 Prairie Forum (Fall 1992) 225.

48. Province of Ontario v. Dominion of Canada (1909), 42 S.C.R. 1 at 103-4. 49. Section 3 of the Dominion Lands Act, 1883 reads: "None of the provisions of this Act shall be held to
apply to territory the Indian title to which shall not, at the time, have been extinguished."

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50. The following treaties were negotiated during the period when Metis aboriginal title was purportedly
extinguished by grant of scrip: Adhesion to Treaty No. 6 (1888), Treaty No. 8 (1899), Treaty No.10 (1906), Adhesion to Treaty No. 5 (1908) and Treaty No. 11 (1921).

51. See for example provision made for Indians under Treaty No. 10 outlined in order-in-council of July
20, 1906, P.C. 1459, infra section 5.2.

52. Sanders, "Aboriginal and Treaty Rights in Manitoba" (1990) [unpublished] at 17. 53. Order-in-council of July 20, 1906 covering Treaty No. 10 lands. 54. Ewing Commission. 55. R. v. Agawa (1988), 28 O.A.C. 201 at 215-16. 56. Guerin v. The Queen, [1984] 2 S.C.R. 335. 57. Guerin v. The Queen, supra at 376. 58. St. Catherine's Milling v. The Queen (1888), 14 App. Cas. 46 at 54. 59. See Canada and the Metis, supra note 3 at 58. Letter from Sir George E. Cartier, federal government
representative, to Father Ritchot, Riel's chief negotiator, as described in chapter 3, Metis Lands, supra note 45 at 44-45.

60. Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 744-45. 61. Kemp, Land Grants under the Manitoba Act (The Historical and Scientific Society of Manitoba, 1954)
Series III, No. 4; Taylor, A Report to the Native Council of Canada [unpublished] 1979; and Sprague, "Government Lawlessness in the Administration of the Manitoba Land Claims, 1870-1887" (1980) 10 Man. L.J. 415.

62. Order-in-council of April 3, 1873, P.C. 369. 63. Based on the legislative record; and on the historical accounts of Sprague, in Government Lawlessness,
supra note 60 and Canada and the Metis, supra note 3, and Flanagan, Metis Lands, supra note 45.

64. Money scrip allowed the holder to purchase Dominion lands at a price of $1 per acre, up to the face
value of the scrip. Land scrip was issued in acres. The holder was eligible to choose lands in an amount equal to the acreage specified on the scrip.

65. Tabulated statement by N.O. Coté, Department of the Interior, Dominion Lands Board, December 3,
1929. There were 6034 claims approved for land grants to the children of Half-breed heads of family granting a total of 1,448,160 acres of land. There were 993 supplemental claims which were satisfied by a grant of scrip.

66. An Act respecting the appropriation of certain Dominion Lands in Manitoba, S.C. 1874, 37 Vict. c. 20.

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67. During the period between the enactment of the federal Act authorizing a grant of land or scrip (May
26, 1874), and the order-in-council specifying money scrip would be the vehicle for the grant (March 23, 1876) no grants of land were made to Metis heads of family. The period was spent enumerating the eligible Metis heads of family.

68. Tabulated statement by N.O. Coté, supra note 64. 69. Half-Breed Land Grant Protection Act, S.M. 1873, 37 Vict. c. 44. 70. An Act to amend Cap. 46 Vict. 37, intituled: The Half-breed Land Protection Act, S.M. 1875, 38 Vict.
c. 37.

71. G.V. La Forest, Disallowance and Reservation of Provincial Legislation (Department of Justice, 1955)
at 85. The author cites the following reasons for the disallowance: "Act was not advantageous to halfbreeds. No notice of passage of Act was given in Manitoba Gazette as required, and same was not considered in force in Manitoba." There is no record of disallowance of any other provincial statute dealing with the Metis in Manitoba.

72. An Act to amend the Act passed in the 37th year of Her Majesty's reign, entitled "The Half-Breed Land
Grant Protection Act, S.M. 1877, 40 Vict. c. 5.

73. Report of Z.A. Lash, May 3, 1878, concurred in by Roger Laflamme, in Hodgins, Reports at 821-22, as
cited by Flanagan, Metis Lands, supra note 45 at 107.

74. Order-in-council of April 25, 1871, P.C. 874. This was contrary to s. 31 of the Manitoba Act, text of
which is reproduced, supra.

75. Dominion Lands Act, S.C. 1872, 35 Vict. c. 23. 76. Order-in-council of May 26, 1871. 77. Order-in-council of January 13, 1872. 78. Order-in-council of April 15, 1872, P.C. 297. 79. Dominion Lands Act, S.C. 1872, 35 Vict. c. 23. 80. Manitoban, December 7, 1872. 81. Half-breed Land Grant Protection Act, S.M. 1873, 37 Vict, c. 44. 82. Order-in-council April 3, 1873, P.C. 369; 83. An Act to remove doubts as to the construction of section 31 of the Act 33 Vict. c. 3, and to amend s.
108 of the Dominion Lands Act, (1873) 36 Vict. c. 38.

84. An Act respecting the appropriation of certain Dominion Lands in Manitoba, (1874) 37 Vict. c. 20.

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85. Order-in-council of April 26, 1875, P.C. 406, Order-in-council May 5, 1875, P.C. 449. 86. Act to amend Cap. 46 Vict 37, intituled: The Half-Breed Land Grant Protection Act, S.M. 1875, 38
Vict. c. 37.

87. See note 70, infra. 88. Order-in-council of March 23, 1876. 89. Order-in-council of April 20, 1876, P.C. 85. See Sprague, Canada and the Metis, supra note 3 at 11623.

90. Order-in-council of September 7, 1876. 91. An Act to amend the Act passed in the 37th year of Her Majesty's reign entitled, "The Half-Breed Land
Grant Protection Act" S.M. 1877, 40 Vict. c. 5.

92. An Act respecting Infants and their Estates, S.M. 1878, 41 Vict. c. 7. 93. An Act to enable certain children of Half-breed heads of families to convey their land, S.M. 1878, 41
Vict. c. 20.

94. Order-in-council of July 4, 1878, P.C. 579. 95. An Act to amend the Act intituled: An Act respecting infants and their estates, S.M. 1879, 43 Vict. c.
27.

96. Order-in-council of April 12, 1880, P.C. 302. 97. An Act respecting Half-Breed lands and quieting certain titles thereto, S.M. 1881, 44 Vict. c. 19. 98. Order-in-council of April 20, 1885, P.C. 810. In all, 993 of these supplemental claims are approved,
according to report by N.O. Coté, supra note 64.

99. Order-in-council of December 4, 1893, P.C. 3058. 100. Section 81(e) of the 1883 Act was virtually identical to s. 125(e) of the 1879 Act, except that it
provided for Half-breeds resident in the North-West Territories previous to July 15, 1870.

101. Order-in-council of April 13, 1886. 102. The following treaties were negotiated in the North-West Territories: Adhesion to Treaty No. 6
(1888), Treaty No. 8 (1899), Treaty No. 10 (1906), Adhesion to Treaty No. 5 (1908) and Treaty No. 11 (1921).

103. Order-in-council of May 6, 1899, P.C. 918. 104. Ibid. 63

105. An Act to further amend the Dominion Lands Act, S.C. 1899, 62-63 Vict. c. 16, s. 4. 106. An Act respecting Public Lands, R.S.C. 1906, c. 55. 107. The Canadian government need only have looked south of the border to learn about the hazards of
scrip. As noted by Flanagan in Metis Lands, supra note 45 at 24-25, scrip had been used in the United States in the 1850's to settle a grant of 80 acres of land on Chippewan mixed-bloods living in lands surrendered by the Chippewas of Lake Superior. The system was rife with speculation. A subsequent treaty in 1863 with another band of Chippewa provided: "No scrip shall be issued under the provisions of this article, and no assignments shall be made of any right, title or interest at law or in equity until a patent shall issue, and no patent shall be issued until due proof of five years' actual residence and cultivation."

108. House of Commons Debates: J.A. Macdonald, July 6, 1885 at 3113-14, and J. Royal, July 8, 1885 at
3209.

109. Excerpt form Annual Report of the Department of the Interior, 1889, attached as Annex C to the
order-in-council of December 28, 1895, P.C. 3723.

110. "A Philanthropic Plan to redeem the Half-Breeds of Manitoba and the North-West Territories",
submitted by Father Lacombe, Vicar General of the Bishops, dated March 27, 1895 and attached as Annex B to the order-in-council of December 28, 1895, P.C. 3723.

111. Report from A.M. Burgess, Deputy Minister of the Interior, to T. Mayne Daly, Minister of the
Interior, dated December 12, 1895 and attached as Annex A to the order-in-council of December 28, 1895, P.C. 3723.

112. Dominion Lands Act, 1879, section 125(e). 113. Order-in-council of January 28, 1885, P.C. 135. 114. Order-in-council of March 30, 1885, P.C. 688 stated: "On a Report dated 28th March, 1885, from the
Minister of the Interior, submitting that by [s. 81(e)] of the Dominion Lands Act, 1883 it is provided that the Governor in Council shall have power "to satisfy any claims existing in connection with the extinguishment of Indian title, preferred by half-breeds resident in the Nroth-West Territories …" Section 81(e) of the 1883 Dominion Lands Act is virtually identical to s. 125(e) of the 1879 Act.

115. Order-in-council of April 18, 1885, P.C. 821. 116. Order-in-council of March 13, 1886, P.C. 309. "The Minister deems it important that all claims
preferred under [s. 81(e)] of the Dominion Lands Act, 1883, by Half-breeds within the ceded territory should be speedily disposed of, and he therefore recommends that Mr. Roger Goulet … be appointed sole Commissioner…"

117. Order-in-council of April 13, 1886, P.C. 657. 118. Order-in-council of December 14, 1888, P.C. 2675. "… with reference to the Order-in-Council of
[November 28, 1888] appointing Lieut.-Col. Irvine and Mr. Roger Goulet, Commissioners to conduct negotiations with the Green Lake Indians for the surrender of their title to the country therein described, that Mr. Goulet also be empowered on the execution of the surrender by the Indians to investigate the claims of any Half-breeds that may be found to be residing within the territory thereby surrendered …"

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119. Order-in-council of March 18, 1889, P.C. 592. "The Minister is of the opinion that it would be
advisable and in the public interest that these claims should now be finally disposed of, notwithstanding the residence of the claimants at the Transfer in territory which has not yet been ceded by the Indians under Treaty, on the same terms as were the claims of Half-breeds who at the time of the Transfer were residing within the territory which has since been ceded …"

120. Order-in-council of March 24, 1891. The proposal was rejected twice more before finally being
accepted by order-in-council of March 2, 1900.

121. Order-in-council of March 12, 1892, P.C. 630. "The Minister is of the opinion that Half-breeds who
were residents of that portion of the North-West Territories on 15th July, 1870, since ceded by the Indians under treaty with the Government of Canada, have had ample time and have been given every possible facility to submit the necessary evidence in support of their claims…" Section 90(f) of the Dominion Lands Act is identical to s. 125 (e) of the 1879 Act and s. 81 (e) of the 1883 Act.

122. Order-in-council of December 28, 1895, P.C. 3723. See text accompanying note 109. 123. Order-in-council of March 20, 1897, P.C. 6470. "…That the practice … of refusing to permit entry by
the purchaser from the Half-breed child to whom such scrip was issued … was adopted for the purpose of discouraging speculation in Half-Breed lands. That it is very doubtful that such practice served that purpose, but that at this date it is now certain that it now operates only as an obstacle to the closing of the few remaining cases where scrip of the class under consideration is held, in each instance, by a purchaser who is unable to have the Half-breed child … attend at the land office to make entry for the lands selected. The Minister therefore recommends that notwithstanding the wording of the Orders in Council before mentioned, or the wording [on the scrip, any holder of scrip] who is able to produce and file satisfactory evidence that he became its holder honestly [be allowed] to enter [lands] in his own name…"

124. Order-in-council of May 6, 1899, P.C.918. See text accompanying note 102, supra. "[The
Superintendent General of Indian Affairs] considers it advisable that concurrently with the Treaty negotiations, the claims of the Half-Breeds residing within the territory to be surrendered should be investigated and dealt with." With respect to the extension of the grant to Metis born between July 15, 1870 and December 31, 1885, the order states: "As already set forth, [the Minister] is of the opinion that Indian and Half-Breed rights are co-existent and should properly be extinguished concurrently. When Half-Breed rights are not so extinguished, they must, he considers, be held to exist after the extinguishment of the Indian title and up to such time as action is taken for their extinguishment."

125. Order-in-council of March 2, 1900, P.C. 438. 126. Order-in-council of March 13, 1900, P.C. 596. 127. Order-in-council of March 16, 1901, P.C. 575. 128. Order-in-council of August 13, 1904, P.C. 1613. Latter clause rescinded by order-in-council of
December 17, 1904, P.C. 2268.

129. Order-in-council of June 21, 1905, P.C. 1148. 130. Order-in-council of January 6, 1906, P.C. 2108. We have not been able to locate documentation of
Myers' recommendations.

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131. Order-in-council of July 20, 1906, P.C. 1459. It was recommended that the treaty with the Indians
provide: "For the setting aside of reserves of an area not to exceed one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families, and for such Indian families or individual Indians as prefer to live apart from band reserves, the setting aside of lands in severalty to the extent of 160 acres for each Indian with a proviso as to nonalienation without the consent of the Governor in Council;" Indians who lived off the reserve would nonetheless receive an annuity and access to the other benefits provided to Indians on the reserve. While the order made recommendations for what the treaty with the Indians should contain (i.e. the treaty was to be a negotiated agreement), it provided only one means for Metis to surrender their aboriginal title: through the acceptance of $240 money scrip or land scrip for 240 acres.

132. Order-in-council of April 6, 1907. 133. Order-in-council of May 29, 1909, P.C. 1060. 134. Order-in-council of April 12, 1921, P.C. 1172."The Committee of the Privy Council have had before
them a report, dated 30th March, 1921 from the Minister of the Interior, submitting that concurrently with the treaty to be made during the coming season with the Indians of the Mackenzie River District and such territory adjacent thereto as is deemed advisable to include in the treaty, with a view to extinguishing the aboriginal title to the lands in the said district and territory, it will be necessary, in accordance with the past practice in such cases, to deal with the claims arising out of the extinguishment of the Indian title of the Halfbreeds resident in the territory … It is estimated that there are about [15] families of Halfbreeds resident in the territory who will have to be treated with. The other Halfbreeds in this country, consisting of approximately [75] families, mostly living in the Indian mode of life, it is anticipated will in their own interests, be taken into treaty. … Halfbreeds, whose right arising out of the extinguishment of the Indian title has not been otherwise extinguished, found to be permanently residing with the territory covered by the proposed treaty on the date of the signing of the treaty at Fort Providence, shall be entitled to a grant of [$240] in satisfaction of their claim arising out of the extinguishment of the Indian title."

135. An Act to amend The Dominion Lands Act, S.C. 1923, 13-14 Geo. V. c. 44, s. 8. 136. Slattery, "Understanding Aboriginal Rights" (1987), 66 Can. Bar Rev. 727 at 763-769 [hereinafter
Understanding] reviews the methods of extinguishing/surrendering aboriginal title. Only those which are applicable to the current discussion are analyzed here. Those which are not covered are i) Crown occupation of lands which are temporarily unoccupied, ii) Crown grant which is unauthorized by statute, iii) adverse possession and iv) acts of the French Crown.

137. Understanding, supra at 763. 138. Nowegijick v. The Queen, [1983] 1 S.C.R. 29. 139. Order-in-council of December 14, 1888, P.C. 2675. See text accompanying note 117, supra. 140. Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 at
568 (T.D.).

141. Sparrow, supra at 1098-99. 142. Nowegijick v. The Queen,, [1983] 1 S.C.R. 29 at 36. See text accompanying note 42. 143. Understanding at 766-67. 66

144. S.M. 1873, 37 Vict. c. 44, enacted February 28, 1874. 145. S.M. 1875, 38 Vict. c. 37. Disallowed in October, 1876. 146. S.M. 1877, 40 Vict. c. 5. 147. The Half-breed Lands Act, C.S.M. c. 42, s. 2.:"…any sale for a valuable consideration, and duly
made and executed by deed, from and after the first day of July, 1877, by any child of any half-breed, having legal right to a portion of the one million four hundred thousand acres of land in the Province, set apart for the children of half-breeds by the Parliament of Canada, of such portion, shall be legal and effectual for all purposes and transfer the rights and estate of the vendor thereto and therein."

148. As cited by Flanagan in Metis Lands, supra note 45 at 105: A.A. Dorion, 21 February 1874, National
Archives of Canada, RG 13 A 2, vol, 566 at 251-61.

149. Sections 6 and 7 of the April 25, 1871 order-in-council were rescinded. 150. An Act to enable certain children of Half-breed heads of families to convey their land, S.M. 1878, 41
Vict. c. 20. Woods, CJ. made the submission to an 1881 provincial commission of inquiry "to enquire into the administration of Justice in this Province as to Infant's lands or estates".

151. S.M. 1881, 44 Vict. c. 19. 152. An Act respecting Infants and their Estates, S.M. 1878, 41 Vict. c. 7. 153. An Act to amend the Act intituled: An Act respecting Infants and their Estates, S.M. 1879, 43 Vict. c.
27.

154. Flanagan, Metis Lands in Manitoba, (Calgary: University of Calgary Press, 1991) at 114. 155. Speech by Joseph Royal, member for Provencher, House of Commons Debates, July 8, 1885 at 320809.

156. Flanagan, supra at 146. 157. Speech by Prime Minister J.A. Macdonald, House of Commons Debates, July 6, 1885 at 3113. 158. Order-in-council of March 30, 1885, P.C. 668. 159. See sections 3.2 and 3.3, supra. 160. See sections 3.2, 3.3 and 5.2.2. 161. An Act to amend The Dominion Lands Act, S.C. 1923, 13-14 Geo. V. c. 44, s. 8. 162. Federal responsibility for the Metis as "Indians" within the meaning of the Constitution Act, 1867 is
discussed in section 2.7, supra.

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163. Cases dealing with the applicability of provincial laws to Indians Daniels v. White, [1968] S.C.R.
517; Frank v. The Queen, [1978] 1 S.C.R. 95; The Queen v. Mousseau, [1980] 2 S.C.R. 89; Eld v. The Queen, [1980] 2 S.C.R. 166; The Queen v. RSutherland, [1980] 2 S.C.R. 451; Moosehunter v. The Queen, [1981] 1 S.C.R. 282; R. v. Horse, [1988] 187; R. v. Horseman, [1990] 1 S.C.R. 901. In R. v. Ferguson (March 3, 1993) the Alberta Provincial Court Criminal Division characterized the accused as a "non-treaty" Indian to bring him within the application of the Alberta Natural Resources Transfer Agreement. There was some evidence that the accused had Metis ancestry. In obiter, Goodson J. indicated that the term "Indian" in the NRTA could be extended to Metis, although it was not necessary to do so in this case.

164. Orders-in-council of April 20, 1876, P.C. 85 and July 4, 1878, P.C. 579, respectively. 165. See text accompanying note 88, supra. 166. See section 2.6, supra. 167. [1985] 1 S.C.R. 721

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