|Metis land according to the Manitoba Act|
The Supreme Court has said that the promise of the Manitoba Act to set aside 566,000 hectares or 1.4 million acres did not live up to the fiduciary responsibility and did not honour the Crown.
The majority of the Justices said this:
Although the honour of the Crown obliged the government to act with diligence to fulfil Section 31, it acted with persistent inattention and failed to act diligently to achieve the purposes of the Section 31 grant," the ruling said. "This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade, substantially defeating a purpose of Section 31.The dissenting Justice Marshall Rothstein said that it would "impossible to predict" the consequences of the decision of the majority of the court.
"If this land grant obligation had been made today, we would have expected a more expeditious procedure. However, the obligation was not undertaken by the present day federal government. It was undertaken by the government over 130 years ago, at a time when the government and the country were newly formed and struggling to become established. We cannot hold that government to today's standards when considering circumstances that arose under very different conditions."The judge is correct is his assessment. But he is also ignoring the corruption that arose as a result of the Metis land deal and how many people were left out in the end.
One Winnipeg journalist called the decision "judicial activism" and a dangerous precedent. The problem is that the Constitution doesn't leave room for considerations that Rothstein states. He basically confirms things were not right according to the Manitoba Act.
The Supreme Court would be wrong to say there is an expiry on the Constitution. Now that would be judicial activism and political.
Journalists can't say for judges to be strict Constitutionalists and then cry foul when a decision goes against what they want.
If the government believes the Supreme Court have committed the federal government to something unsustainable, Harper might be able to invoke the "notwithstanding clause".
The decision can be set aside for five years and extended indefinitely. This gives Parliament supremacy over this court decision. Now, I didn't hear certain academics and journalists asking for Parliament to do this. The reason is that it would be controversial and it is easier to blame the court for forcing it to do unpopular things.
We simply don't know what this decision by the court will entail just yet. It will be up to the Metis and the federal government to figure out.
We do know that within days of the decision that Manitoba Hydro's decision to run Bipole III down the west side of the province possibly faces a court challenge if consultations and compensation are not forthcoming.
The Manitoba Metis Federation has said they are not looking to throw people off their lands. This certainly would trigger a notwithstanding clause from the Feds or province.
However, what about Crown lands? Well, those are certainly fair game. In short, if the federal and provincial governments wish to settle what the court points out was unfair, they will have to talk land deals and compensation.
Nearly the entire city of Winnipeg is on Metis land. This raises the interesting idea that surplus Crown land like the Kapyong Barracks has Metis first dibs and NOT First Nations ones.
Let me repeat that:
The federal court has said that the Harper government must consult with First Nations before disposing of the Kapyong Barracks. The latest decision by the Supreme Court puts that in question.
Who has first dibs on Kapyong? Section 31 of the Manitoba Act was brought in on May 12, 1870. Treaty 1 was enacted on August 3, 1871.
The Metis get first dibs on the Kapyong Barracks if this goes to the Supreme Court.
None of any of this will decided in the next days and months. The word game-changer is used far too often but in this case, it is the description for what this all means.
Now, Manitoba doesn't have to come out poorly from all this. If Metis get land and compensation, there could be a very large economic boost to the province. It would be fair to say though that this could get rough and that people should watch for elbows into the corners.
The Chinese as a curse say "hope you live in interesting times."
These are indeed interesting times.