2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165 A.C.W.S. (3d) 820
2007 CarswellMan 500, 2007 MBQB 293, [2008] 4 W.W.R. 402, 223 Man. R. (2d) 42, [2008] 2 C.N.L.R. 52, 165 A.C.W.S. (3d) 820
Manitoba Métis Federation Inc. v. Canada (Attorney General)
Manitoba Metis Federation Inc., Yvon Dumont, Billyjo de la Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allarie, Celia Klassen, Alma Belhumeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson (Plaintiffs) and Attorney General of Canada and Attorney General of Manitoba (Defendants)
Manitoba Court of Queen's Bench
A.D. MacInnes J.
Judgment: December 7, 2007
Docket: Winnipeg Centre CI 81-01-01010
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Counsel: Thomas R. Berger, Q.C., James R. Aldridge, Q.C., Harley I. Schachter, M. Bartley, for Plaintiffs
Robert A. Dewar, Q.C., Paul R. Anderson, Cary D. Clark, for Defendant, Attorney General of Canada
Heather S. Leonoff, Q.C., Jayne L. Kapac, for Defendant, Attorney General of Manitoba
Subject: Civil Practice and Procedure; Public; Constitutional; Property
Civil practice and procedure --- Limitation of actions — Actions involving Crown — Miscellaneous actions
Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed — Limitation of Actions Act applied — Time fame material to plaintiffs' action was approximately late 1869 to 1890 — No court proceedings were commenced in respect of ss. 31 and 32 of Manitoba Act until 1981 — Limitation of actions statutes were known to law in 1870 and thereafter — Plaintiffs sought declaratory relief which was claim for equitable relief — Excepting issue of constitutional validity and challenge, there was no question that plaintiffs' action was outside of statutorily mandated limitation period — Residents at time, or their leaders, would have known of their rights under ss. 31 and 32, and would have known that which was actually transpiring in respect of administration and implementation of those sections, including federal and provincial legislation and enactments — It could be inferred that they chose not to challenge or litigate in respect of ss. 31 and 32, knowing of sections, of what those sections were to provide them, and of their rights to litigate.
Civil practice and procedure --- Limitation of actions — Actions involving Crown — Laches and acquiescence
Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed — Limitation of Actions Act applied — Equitable defences of laches and acquiescence were available, if circumstances so existed, notwithstanding existence of limitation periods — Doctrine of laches and acquiescence was applicable and amounted to successful defence to plaintiffs' claim — None of explanations for delay constituted justifiable explanation at law for those entitled under ss. 31 and 32, whether individually or collectively, to have sat on their rights until 1981 — Nor did this delay in exercise of their rights square with evidence as to conduct of individuals and larger community in respect of steps taken when it was thought that there had been breach of s. 22 and/or s. 23 of Manitoba Act — In law, this amounted to acquiescence — Delay resulted in circumstances that made prosecution of action unreasonable — Plaintiffs were seeking declaratory relief, an equitable relief — One who seeks equity must do so promptly; that had not been done in this case.
Aboriginal law --- Practice and procedure — Parties — General principles
Standing — Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed on other grounds — Although it was conceded that individual plaintiffs had standing, MMF did not have standing — MMF's representative status was in nature of dealing with governments and Crown agencies in political sense — This was not in itself synonymous with or equal to legal standing — Canada had brought unsuccessful motion to strike statement of claim, and it was not clear that decision was, or was intended to be, final decision in respect of issue of standing — Plaintiffs failed to establish preconditions for operation of issue estoppel, which was first of two-step analysis as to whether issue estoppel should be applied — There were many factors that supported exercise of discretion against application of doctrine of issue estoppel — MMF was not by its membership co-extensive with those individuals who were, or their descendants who perhaps were, entitled under ss. 31 and 32 — There has been further development of law regarding public interest standing, involving direction from Supreme Court of Canada wherein court opted for restrictive approach to application of relevant criteria — Not only was there another reasonable and effective way to bring issues before court other than by MMF, this had in fact been done.
Civil practice and procedure --- Judgments and orders — Res judicata and issue estoppel — Issue estoppel — Miscellaneous issues
Manitoba Métis Federation Inc. (MMF) and individual Métis plaintiffs asserted that Métis people of Manitoba suffered historic injustice, namely, loss of land base they were to have received under Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation — Plaintiffs brought action for declaratory relief to assist them in future negotiations with governments of Canada and Manitoba to achieve land claims agreement — MMF was Manitoba corporation purporting to represent 130,000 Métis people — Individual plaintiffs alleged they were descendents of persons referred to in Act as "half-breeds" entitled to land pursuant to s. 31 of Act, and to land and other rights under s. 32 of Act — Action dismissed on other grounds — Although it was conceded that individual plaintiffs had standing, MMF did not have standing — MMF's representative status was in nature of dealing with governments and Crown agencies in political sense — This was not in itself synonymous with or equal to legal standing — Canada had brought unsuccessful motion to strike statement of claim, and it was not clear that decision was, or was intended to be, final decision in respect of issue of standing — Plaintiffs failed to establish preconditions for operation of issue estoppel which was first of two-step analysis as to whether issue estoppel should be applied — There were many factors that supported exercise of discretion against application of doctrine of issue estoppel — MMF was not by its membership co-extensive with those individuals who were, or their descendants who perhaps were, entitled under ss. 31 and 32 — There has been further development of law regarding public interest standing, involving direction from Supreme Court of Canada wherein court opted for restrictive approach to application of relevant criteria — Not only was there another reasonable and effective way to bring issues before the court other than by MMF, this had in fact been done.
Constitutional law --- Procedure in constitutional challenges — Standing
Civil practice and procedure --- Parties — Standing
The plaintiff Manitoba Métis Federation Inc. ("MMF") and individual Métis plaintiffs asserted that the Métis people of Manitoba suffered an historic injustice - the loss of a land base they were to have received under the Manitoba Act (1870) upon Manitoba's entry into Canadian Confederation. The plaintiffs brought an action for declaratory relief for the purpose of assisting them in future negotiations with the governments of Canada and Manitoba to achieve a land claims agreement. The MMF was a Manitoba corporation purporting to represent 130,000 Métis people resident in Manitoba. The individual plaintiffs alleged they were descendents of persons referred to in the Act as "half-breeds" entitled to land pursuant to s. 31 of the Act, and to land and other rights under s. 32 of the Act. Section 31 provided for the dividing up of 1.4 million acres of land and the granting of lots or tracts of land to the children of the half-breed heads of families residing in the province at the relevant time. Section 32 addressed the quieting of titles and assuring to the settlers of the province the peaceable possession of lands already held by them at the time. The plaintiffs sought declarations that certain statutes and orders in council were ultra vires the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional; that Canada failed to fulfill its obligations to the Métis under ss. 31 and 32 pursuant to undertakings given by the Crown; that Manitoba, by enacting certain legislation and imposing taxes on lands referred to in s. 31 prior to the grant of those lands, unconstitutionally interfered with fulfilment of obligations under s. 31; and, that there was a treaty made in 1870 between the Crown in right of Canada and the Provisional Government and people of Red River.
Held: The action was dismissed.
Canada and Manitoba conceded that the individual plaintiffs had standing. The MMF, however, did not have standing. The MMF's representative status was in the nature of dealing with governments and Crown agencies in a political sense. While that may have had some relevance to and bearing upon the question of standing in this litigation, it was not in itself synonymous with or equal to legal standing. Considering judgments dealing with an unsuccessful motion by Canada to strike the statement of claim in this action, it was not clear that the decision was, or was intended to be, a final decision in respect of the issue of standing. The fundamental issues before the court had changed. The plaintiffs failed to establish the preconditions for the operation of issue estoppel, which was the first of a two-step analysis as to whether issue estoppel should be applied. There were many factors in this case that supported an exercise of discretion against the application of issue estoppel. The MMF was not by its membership co-extensive with those individuals who were, or their descendants who perhaps were, entitled under ss. 31 and 32 of the Manitoba Act. There has been a further development of the law as to entitlement to public interest standing in litigation, involving direction from the Supreme Court of Canada wherein the court opted for a restrictive approach to the application of the relevant criteria. And, not only was there another reasonable and effective way to bring the issues before the court other than by the MMF, this had in fact been done. Seventeen individual plaintiffs were parties in this action and the defendants conceded that they had standing.
The Limitation of Actions Act applied, and the action was dismissed on that basis. The time frame material to the plaintiffs' action was approximately late 1869 to 1890. No court proceedings were commenced in respect of ss. 31 and 32 of the Manitoba Act until 1981. Limitation of actions statutes were known to the law in 1870 and thereafter. The laws of England applicable to Manitoba in 1870 included such legislation. In the present action, the plaintiffs sought declaratory relief, which was a claim for equitable relief. Excepting the issue of constitutional validity and challenge, there was no question that the plaintiffs' action was outside the limitation period statutorily mandated by the the Limitation of Actions Act. On the evidence in this case, the residents at the time, or their leaders, would have known of their rights under ss. 31 and 32, and would have known that which was actually transpiring in respect of the administration and implementation of those sections, including the federal and provincial legislation and enactments. It could be inferred that they chose not to challenge or litigate in respect of ss. 31 and 32, knowing of the sections, of what those sections were to provide them, and of their rights to litigate.
If it was incorrect to conclude that the Limitation of Actions Act applied, the only aspect of the plaintiff's action that would not be statute barred was their request for a declaration pertaining to the constitutional validity of the enactments listed in certain paragraphs of their statement of claim, including the effect of such legislation upon the plaintiffs' rights as claimed; that is, a declaration as to whether those enactments were ultra vires the Parliament of Canada and/or the Legislature of Manitoba respectively.
Both Canada and Manitoba relied on the equitable defence of laches and acquiescence. These defences were available, if the circumstances so existed, notwithstanding the existence of limitation periods pursuant to the Limitation of Actions Act. The doctrine of laches and acquiescence was applicable and amounted to a successful defence to the plaintiffs' claim. None of the explanations for the delay constituted justifiable explanation at law for those entitled under ss. 31 and 32, whether individually or collectively, to have sat on their rights until 1981. Nor did this delay in the exercise of their rights square with the evidence as to the conduct of individuals and the larger community in respect of the steps taken when it was thought that there had been a breach of s. 22 and/or s. 23 of the Manitoba Act. In law, this amounted to acquiescence.
The delay resulted in circumstances that made the prosecution of the action unreasonable. There was incompleteness in the evidence. Understanding the social context and culture at the material time would be critical to undertaking a pith and substance analysis in considering the constitutionality of legislation. There were doubtless different societal attitudes and values than was the case over 125 years ago, including changes in the common law. Had there been a successful attack on either basis of unconstitutionality or the doctrine of paramountcy, the remedy would have been much more easily determined and applied. At the material time, the available land was owned by Canada. In 1930, Canada transferred control over ungranted lands to Manitoba and thus lost, to a significant extent at least, an asset that it could have used to settle the claim if a timely and successful attack had been advanced. Manitoba also suffered similar prejudice with respect to the remedy now available. The plaintiffs were seeking declaratory relief, an equitable relief. One who seeks equity must do so promptly; that could not be said in the present case.
There was no treaty or agreement negotiated between the Red River delegates and the government representatives at the relevant time. There was an Act of Parliament of Canada, which was recognized as a constitutional document. Neither ss. 31 or 32 of the Manitoba Act, considered on a historical, contextual or purposive basis, pertained to or was intended for the protection of minorities. The Métis of the settlement, including their children to whom the s. 31 grants were to be made, did not hold at July 15, 1870, or at any time prior, Aboriginal title to the lands, which were to become Manitoba and serve as the source for the s. 31 grants. Placed in historic context, the evidence was overwhelming that the Métis were not Indians, and did not consider themselves to be Indians. There was no fiduciary relationship between the Métis (including the Métis children) and Canada in respect of the land that became part of Canada on the entry of Manitoba into Confederation on July 15, 1870, nor was any fiduciary duty owing in respect of it or of the children's grants made under s. 31. There was no evidence that Parliament intended by s. 32 to create a fiduciary relationship between Canada and the residents who fell within that section. The doctrine of honour of the Crown had no relevance to the events that concluded with the passage of the Manitoba Act, or to its interpretation or implementation. The Crown's duty was a public law duty. There was no basis for a finding, let alone a declaration, of unconstitutionality respecting the impugned Manitoba legislation. With two exceptions acknowledged by Canada, none of the impugned federal enactments were contrary to ss. 31 and 32 of the Manitoba Act. There was no functional inconsistency between the federal enactment and the provincial legislation. Simultaneous compliance was easily possible. Whether or not to exercise the power of reservation or disallowance was wholly the unfettered discretion of the Governor General in Council and was not subject to review or comment by the court. Canada was given a broad discretion in administering the land grant provided under the Act. It was not a possible interpretation of s. 31 that this section was to ensure a perpetual Métis land base. There was no claim advanced or evidence to support a claim of bad faith on the part of Canada in the ultimate designation of the lands. There was no basis in law for any finding of liability on the part of Canada respecting the s. 31 lands.