Métis-Crown Relations Through an International Treaty Lens

From 16th century, through until the 19th century, European nations signed many treaties with Indigenous peoples based on mutual understandings, grounded in both European and Indigenous legal principles, recognizing Indigenous peoples’ sovereignty and capacity to enter into Treaties. Despite this early international treaty-making context, there is often an assumption that Indigenous peoples lacked the international standing to conclude international treaties with other (European) nations. It is further assumed that Métis people never concluded treaties with the Crown. This article argues that the agreement that led to the passing of the Manitoba Act, 1870 meets the requirements for a valid treaty in international law, based on international law at the time. This article builds off growing literature that recognizes Indigenous-state treaties as international in character. Recognizing the international character of the agreement is critical to re-establishing the nation-to-nation relationship between Canada and Métis peoples.

Manitoba Metis Federation Inc. v. Canada (Attorney General): Breathing New Life into the "Empty Box" Doctrine of "Indian Title"

This article addresses the Supreme Court’s recent decision in <i>Manitoba Metis Federation v. Canada (Attorney General)</i>, the Court’s interpretation of section 31 of the <i>Manitoba Act, 1870</i>, and the ways in which the ruling seems guided by, or at least concurs with, the works and opinions of Thomas Flanagan. The author highlights various cases which have dealt with Métis rights, established canons of statutory interpretation, Crown obligations, opposing scholarly views, and the distinction between historical contextual analysis and historical legal analysis. In doing so, the author argues that the decision is essentially an invocation and resuscitation of the “empty box” doctrine. This doctrine serves both to recognize Métis rights and revoke them of any tangible substance that such recognition might bring, and seemingly obfuscates the plain meaning rule of interpretation applied to the section 31 phrase: “towards the extinguishment of the Indian Title.”

La revendication du titre “indien” par les Métis du Manitoba, 1860–1870

Résumé.Après plus de deux décennies, un tribunal manitobain a fixé une date pour entendre l'affaireFMMqui touche à la concession des terres aux Métis selon l'art. 31 de laLoi de 1870 sur le Manitoba. Le politologue Thomas Flanagan répète inlassablement que les Métis ne se sontjamaisdécrits comme peuple aborigène ayant des droits fonciers spéciaux pendant la résistance de 1869–70. Puisqu'il est fort probable que la Couronne se serve encore une fois de la recherche de Flanagan dans l'affaireFMM, le moment est opportun pour réexaminer les arguments de Flanagan. Dans ce but, l'auteur examine ici de plus près certaines des prétentions de Flanagan, notamment celles qui veulent que : 1) les Métis n'aientjamaisrevendiqué le statut de peuple autochtone ou des droits autochtones pendant les événements de 1869–70; 2) les listes de droits ne contiennent aucune référence aux droits aborigènes des Métis; et 3) l'abbé Ritchot i) n'ait eu aucun mandat de négocier l'extinction du titre aborigène des Métis et une concession de terres; ii) n'ait été qu'un délégué parmi trois.Abstract.After more than two decades, a Manitoban court has set a date to hear of theMMFcase which touches on the Métis land grant in s. 31 of theManitoba Act, 1870. Political scientist Thomas Flanagan has continually repeated that the Métisneverdescribed themselves as an Aboriginal people with special land rights during the resistance of 1869–70. As it is quite probable that the Crown will use Flanagan's research in theMMFcase, it is timely to reexamine it. To this end, the author takes a closer look at some of Flanagan's conclusions, most notably those that claim that: 1) the Métisneverclaimed status as an Aboriginal people during the events of 1869–70; 2) the various Bills of Rights contain no reference to the aboriginal rights of the Métis; 3) the abbot Ritchot : i) had no mandate to negotiate the extinction of Métis aboriginal rights and a land grant; ii) was but one of three delegates.

Les pouvoirs de légiférer en matière de langue après la « Loi constitutionnelle de 1982 »

The object of this study is to ascertain the power of the federal and the provincial governments to legislate concerning language in Canada. After a study of the ancillary doctrine as the constitutional basis for the exercise of this power by either level of government, the author studied the constitutional restrictions on its use, and determined the following restrictions : 1. For the federal government and the government of the province of Quebec, only : section 133 of the Constitution Act, 1867 which is also an entrenched provision providing minimum rights. 2. For the province of Manitoba only : section 23 of the Manitoba Act, 1870 which is also an entrenched provision providing minimum rights. 3. For the province of New-Brunswick, only : sections 16(2), 17(2), 18(2), 19(2) and 20(2) of the Constitution Act, 1982. 4. For all provinces, subject to the present inapplicability of section 23(1) a) of the new charter concerning the province of Quebec : section 23 of the Constitution Act, 1982. 5. For all provinces and for the federal government : section 16(3) of the Constitution Act, 1982, section 15(1) which recognizes the right to equality, and 2b) which recognizes the freedom of expression. Finally the author studied the implications of the reasonable limits' provision outlined in section 1 of the new charter, this constituting the only means for our governments to avoid the application of the charter to their legislation.

Language, Rights, Remedies, and the Rule of Law

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.