Beyond Doctrines of Dominance: Conceptualizing a Path to Legal Recognition and Affirmation of

451 Pages·2015·3.22 MB·English

Beyond Doctrines of Dominance: Conceptualizing a Path to Legal Recognition and
Affirmation of the Manitoba Métis Treaty

D’Arcy G. Vermette

Thesis submitted to the
Faculty of Graduate and Postdoctoral Studies
In Partial Fulfillment of the Requirements
For the (LL.D.) Doctor of Laws.

Faculty of Law
Common Law Section
University of Ottawa

© D’Arcy G. Vermette, Ottawa, Canada, 2012.
ii

TABLE OF CONTENTS

ACKNOWLEDGMENTS vii

ABSTRACT viii

PROLOGUE: People of the Land x

INTRODUCTION
I. A Note on Labels 1

II. A Note On Scholarship and Colonialism 3

III. A Note on the Scope of Study 13

CHAPTER ONE: MÉTIS OCCUPATION OF THE RED RIVER REGION
I. Introduction 1 8

II. Métis Title through Origins 20

III. Métis Title in Competition Era 24
a. Emergence of Distinct Culture 25
b. Emergence of Distinct Language 26
c. A Settlement and a Fight 28

IV. Métis Title in the HBC Monopoly Era 35
a. Land and Government 42

V. Métis Title in Resistance 50
a. Métis Exclusive Occupation and the Crown’s Impotent Claims 52
b. Métis Government 61

VI. Conclusion 67

CHAPTER TWO: THE RECOGNITION OF MÉTIS ABORIGINAL TITLE
I. Introduction 69

II. A General Background on Aboriginal Title 69

III. The Supreme Court of Canada and the Nature of Aboriginal Title 79

IV. A Métis Understanding of Title 84
a. Incorporating Métis Understandings of Title into the Common Law 90

V. Conclusion 93
iii

CHAPTER THREE: THE NEGOTIATIONS
I. Introduction 98

II. The Negotiations at Red River 101
a. The List of Rights and Métis Demands 108

III. Negotiations in Canada 113
a. A False Start 113
b. Competent Parties 114
c. Negotiations Get Underway 118
d. The Amnesty 123
e. The Question of Metis Lands 128

IV. Conclusion: The Negotiated Agreement with the Métis People 142

CHAPTER FOUR: A MÉTIS TREATY
I. Introduction 146

II. Treaties: General Principles 147

III. What is a “Treaty” in Canadian Law? 152
a. A Treaty is… 152
b. Who are the Parties to a Treaty? 155

IV. Identifying the Existence of Treaty 158

V. How Are Treaties Interpreted? 162
a. Honour of the Crown 163
b. Context 166
c. Liberal and Generous Interpretation 171
d. Ambiguities 174

VI. The Negotiated Agreement and the Manitoba Métis Treaty 177
a. Are the Métis a Treaty People? 178
b. What Parts of the Negotiated Agreement Deal with Métis as Métis? 184
c. An Act AND a Treaty 190

VII. Conclusion 191

CHAPTER FIVE: TREATY RESPONSIBILITIES AND THE CONSTITUTIONAL
ORDER
I. Introduction 195

II. Crown Superiority 196
a. Provincial Laws of General Application 201
b. Extinguishment and Constitutional Protection 203
iv

c. Justification of Crown Infringement 206

III. Treaties and Crown Responsibilities 207
a. Honour of the Crown 207
b. Honour of the Crown applied to the Métis 214

IV. Fiduciary Duty 217
a. What are Fiduciary Duties? 217
b. Aboriginal Peoples and Fiduciary Duties: The Beginnings 221
c. Aboriginal Peoples and Fiduciary Duties: A General Rule for Aboriginal 223
Law
d. Aboriginal Peoples and Fiduciary Duties: Back to the Beginnings 226
e. Aboriginal Peoples and Fiduciary Duties: The Bounds of Métis 235
Considerations

V. The Manitoba Act, and Constitutional Constraints 244
a. Constitutionalizing the Manitoba Métis Treaty: A Historical and Contextual 245
Interpretation
b. Constitutionalizing the Manitoba Métis Treaty: A Legislative Interpretation 248
c. The Manitoba Act and Métis Lands: Federal or Provincial Jurisdiction? 249

VI. The Constitution, Duties and Powers: What was owed to the Métis? 253
a. Honour of the Crown: Promises to be Kept 255
b. Fiduciary Duties: To Act in a Timely Manner 258
c. Fiduciary Duties: Best Interests of the Children of the Half-breeds 259
d. Fiduciary Duties: To Distribute Lands for the Benefit of Families 261
e. Fiduciary Duties: To Protect the Land Grant 263
f. Constitutional Obligations: The Consequences of Enshrining the 268
Negotiated Agreement
1. Constitutional Constraints on Crown Superiority 269
2. Provincial Laws 271
3. Fiduciary Duties: Restricting Provincial Laws as an Application of 272
Federal Power

VII. Conclusion 274

CHAPTER 6: A TREATY DISHONOURED
I. Introduction 278

II. Honour of the Crown: Promises to be Kept 280
a. Amnesty 288
b. French and English Language Protection 290
c. Denominational Schools 291

III. Fiduciary Duty: To Act in a Timely Manner 291
a. 1870-71 294
v

b. 1872-73 296
c. 1874-75 303
d. 1876-77 306
e. 1878-87 310
f. Delay Summary 312

IV. Fiduciary Duty: The Best Interests of the Children of the Half-breeds 313

V. Fiduciary Duties: To Distribute Lands for the Benefit of Families 320
a. Family Clusters within the Larger Grant 320
b. Random Allotment as Violation of Family Clusters 322
c. Legislative Duty to Keep Land within Métis Families 326
d. Scrip as Violation of Legislative Responsibility for the Maintenance of the 329
Family Interest

VI. Fiduciary Duties: To Protect the Land Grant 332
a. Why Was it Necessary to Honour this Duty? 333
b. Encouraging Sales as a Violation of the Duty to Protect the Land Grant 334
c. Order In Council, May 26, 1871 as Violation of Duty to Protect the Land 346
Grant
d. Pillage of the Métis Land Grant 350

VII. Constitutional Obligations: Consequence of Enshrining the Negotiated 352
Agreement
a. Constitutional Constraints on Crown Superiority 352
b. Provincial laws 353
c. Fiduciary Duties: Restricting Provincial Laws as an Application of Federal 355
Power

VIII. Conclusion 357

CONCLUSION 360

EPILOGUE: All That’s Left 372

APPENDIX A: REJECTING THE STANDARD DISCOURSE
I. Introduction 374

II. The Government Can Do No Wrong 379

III. Rhetoric over Reason 392

IV. Individuals as the Unit of Measure 397
a. Methodological Individualism as an Interpretive Strategy 400
b. Methodological Individualism in Practice 401

V. Flanagan’s Underlying Bias Against Aboriginal Cultures 409
vi

VI. All of this Adds Up to Bad History and Misrepresented Issues 416

VII. Conclusion 424

BIBLIOGRAPHY 426
vii

For my children.

I am sorry I couldn’t do more.

You deserve better.
viii

Abstract
In 1869-70 the Métis of the Red River region in Manitoba resisted the transfer of their
homeland from the Hudson’s Bay Company to Canada. The Métis people responded to this
transfer by blocking Canadian surveyors, government officials, and taking control of the territory
through the establishment of representative institutions. Eventually, the Métis negotiated
favourable terms with Ottawa which, this thesis argues, represented according to law, and to the
Métis, a treaty. This thesis argues that this treaty was intended to protect the Métis homeland
and provide political and social protections. The Manitoba Métis Treaty was intended to
guarantee the Métis a land base in Manitoba the total size of which was to be 1.4 million acres.
The reservation of this land came with protective obligations so that the entire community would
receive a benefit from such lands.
While Canada has developed a body of treaty law which will be used to interpret the
Manitoba Métis Treaty, matters were convoluted by the enshrinement of this treaty agreement in
the Manitoba Act of 1870, a document which would gain constitutional status a year later. The
impact of this legislative history has led some researchers to link government obligations entirely
to the Act, rather than to the negotiated agreement. Indeed, it would seem that the negotiations
have been, for the most part, understood as nothing more than conversations. I reject that
position and argue that both the negotiations and the Act must be taken into consideration when
assessing the obligations undertaken by the Crown.
The unique history of the Manitoba agreement means that Canada was under both
constitutional and treaty law obligations to uphold the negotiated agreement between itself and
the Métis. This thesis argues that not only is the treaty the correct legal interpretation of the
events of 1869-70 but that the government of Canada failed to honour its commitments in several
ix

meaningful ways. The approach utilized in this thesis is designed to be reliant upon the basic
structure and doctrines of Canadian law but to do so in a manner which gives weight to the Métis
voice. It is neither a critique which is wholly internal to Canadian law nor is it completely
dismissive of Canadian law. Instead, this thesis will illustrate that with only minor adjustments
to the application and interpretation of colonial law, the Manitoba Métis Treaty could find a
more receptive audience in Canadian legal thought. In the face of a reasonable alternative, such
a project can allow other researchers to question why the courts have chosen a path which denies
reception of Métis voice, community and culture in Canadian law.
x

Prologue
People of the Land

Our way of life has always depended on the land. We would go into the water from time
to time. It was used for travel, trade, and fishing. But our land housed our communities, our
language, our values. When the newcomers came we were pushed into the water. Many of us
drowned. We became scattered by the currents. Occassionally, the newcomers would help our
children out of the water. Only a few of them were seen again. Even then we only saw glimpses
of those children … in the distance. They would return, unexpectedly, to the shores of the water.
They would look bewildered that they had traveled so far away from their people and yet
returned to the same conditions.
You see, after we were forced into the water, the newcomers started to plant trees. They
carved paths through those trees. They put bushes up in odd places to ensure that the paths were
followed. When we were brought to shore, they insisted that we stay on the path. Despite the
many turns, the carefully cared for surfaces and the planted bushes, those paths always return us
to the water where we will inevitably drown.
Yet, the calls from the shore sound louder than ever. "Come, your salvation lies in your
education!" "We will save you!" They wait for us to extend our hands before they throw the
rope. And we do extend our hands for there is no real choice to be made. And, at the moment
when they start pulling us to shore we relax, relieved that we no longer have to tread. At the
shore, we are grateful to feel the earth beneath our feet. We can see light coming into this new
forest. We bob our heads like parrots trying to see if we can catch a glimpse of our lands
through the bushes. And they quickly get us moving. We go. One by one we travel their paths.
Those who call us and guide us seem like nice people. They have good intentions. And,
they listen … to most of what we say. They tell us what paths we should travel if we want to get