Saturday, March 9, 2013

Métis wuz robbed sez Supremes

Finally, one of the three pillars of Canada's aboriginal peoples -- the Métis -- have won justice.   They are owed a lot of money -- perhaps ten billion or even more.  And it's because of one thing.   Our constitution.

There's one thing about constitutions.   The way they're drafted can leave a lot to interpretation.  Some insist on an originalist viewpoint, that is interpret it only considering when it was written.   Others say that clauses have to be viewed with a broad focus in mind as time passes by, that nothing is set in stone -- the "living tree" concept.    Canadian justices have tended to look at the big picture, unlike some other countries.   But sometimes they focus on the original intent -- and it comes back to bite even the framers.   And for the second time in the last three decades, the court has set its sights on the Manitoba Act, 1870.

Many of us remember in the 1980s the then decades long battle between the province and the small French-language community and the province's official language act which proclaimed that English language to be the only official language and prohibited the government or cities from providing any services in French.   It took almost forever but in 1985, the Supreme Court unanimously ruled in the "Manitoba Language Reference" (as "The Court", never revealing who wrote the opinion) that the province had no right to unilaterally repeal section 23 which required laws to be in English and French.

As a result, everything that the province ever did between 1890 to 1985 was illegal.   Not just the statutes and executive orders.   Every birth, every marriage, every death, every highway and house and building built during that time, all driver's licenses, all hunting and fishing permits, every parking ticket and moving violation -- the whole enchilada -- were all invalid because the contracts and documents were in English only too.   In effect, Manitoba was in a state of anarchy.   The high court offered a way out, giving the province three years to repass the laws -- which it did -- in a Canadian twist to the "doctrine of necessity."

Today, in a 6 to 2 decision (one Associate Justice, Marie Deschamps, apparently recused herself after oral arguments), the Court ruled in Manitoba Metis Federation v. Attorney General of Canada that a strict reading of section 31 of the Manitoba Act would make it clear that the province's Métis were deprived of a promise to get the best land in the province when the Red River Settlement agreed to be annexed (retroactively) by Canada.   While the descendants of the blending of natives and white settlers thought their children would keep what we now know as Winnipeg and the surrounding area, about 5700 square kilometres or 1.4 million acres, instead they got scrips for much less desirable land.   Over the ten years after the province was created, they were literally run out of town by the Whites.

Much more to the point, to the argument the feds made that the statute of limitations would have run out decades ago, indeed just a few years after Manitoba was created, the Court said that the fact that the feds' role in the deceit, intended or not, only came out well after the fact, effectively reset the clock to file a lawsuit, and that too was a deciding factor that tipped things in favour of the plaintiffs.  And in any case, the Métis' rights were in the Constitution before those of the Inuit and North American Indians were included in 1982 -- and the government's duty to carry out the "honour of the Crown" had been present all along and it had not done so.

Of course, the Métis don't want Winnipeg back, anymore than the Mississaugas want Mississauga.   But it's the principle that matters.   If we made a commitment to our First Nations then we had better damn well stick by them.   Which means we'll have to start land claims negotiations.   Let's just hope it doesn't take even more decades as it did with the Haida, the Nisga'a or the Gitxsan and Wet'suwet'en alliance.    The settlement needs to be fair and just, but it needs to wrap up in a way that satisfies all and in a reasonable period of time.

At the same time we need to settle the remaining land claims with the North American Indians.   If the Six Nations disgrace is any indication -- and remember, there are still 26 claims from that one band and by the elected council -- we could all be spinning in the wind unless this government, indeed all political parties, finally band (pardon the expression) up and say we'll get this taken of; so all Aboriginals feel they are truly part of the country we illegally occupied in 1497.

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