Why tomorrow’s Manitoba Métis decision from the Supreme Court is of importance to First Nations

By Bruce McIvor

Tomorrow morning the Supreme Court of Canada will release its long awaited decision in the Manitoba Métis Federation case. While the decision is of obvious importance to all Métis, and especially those whose ancestors were issued scrip at Red River, the decision also has important implications for First Nations across Canada.

What it is about

The case raises numerous historical and legal issues surrounding Canada’s promise in 1870 to set aside lands for the Métis at Red River, but at its heart is the question of Canada’s present-day obligations to the Métis.

Through section 31 of the Manitoba Act, 1870 Parliament, as part of “the extinguishment of the Indian Title” in Manitoba, agreed to set aside 1,400,000 acres of land to be divided among Métis children. The long history of injustice that followed Canada’s and Manitoba’s questionable fulfillment of the promise to the Métis children has been at the centre of Manitoba Métis consciousness for nearly 150 years.

In 2010 the Manitoba Court of Appeal held that, among other things, even if Canada did owe a fiduciary duty to the Métis based on section 31, the duty was not breached, and that any claim for breach of a fiduciary duty is now barred by statutory limitations, i.e. too much time has passed.

Why it is important

Aside from the question of the legal importance of Parliament in 1870 seeking to extinguish Métis’ “Indian Title,” tomorrow’s decision may have wide-ranging implications for the interpretation of Canada’s fiduciary obligations to First Nations across Canada.

It is always difficult to predict how the Supreme Court will identify the issues before it and what questions it will consider necessary to answer, but the Court is likely to further explain both the content of the Crown’s fiduciary duty to Aboriginal people and the requirements for proving a breach by the Crown of the duty.

The Supreme Court is also likely to address the issue of Canada relying on a statutory limitations defence when faced with a historical breach of a fiduciary duty. The Manitoba Métis Federation has urged the Court to conclude that Canada cannot plead limitations when it has breached a constitutionally-mandated fiduciary duty and it is not facing a demand for damages. Here, the Métis are not seeking specific compensation—they want a court declaration of breach of the fiduciary duty to support their negotiation of a modern-day land settlement.

The Métis will be waiting anxiously for tomorrow’s decision from the high court, but First Nations across Canada also have a lot at stake. If the Supreme Court decides the fiduciary and limitations issues in favour of the Métis, it will be a significant victory for all Aboriginal people.

The Manitoba Court of Appeal Decision

The Manitoba Métis Federation's Supreme Court Factum

Canada's Supreme Court Factum

Manitoba's Supreme Court Factum

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

Download Bruce's bio

Contact Bruce

Follow Bruce on LinkedIn and Twitter 

For more First Peoples Law analysis, visit our blog

Sign up for our Aboriginal Law Report