12/11/2011 01:46 EST | Updated 02/10/2012 05:12 EST

Last Battle Of Red River Rebellion: Supreme Court Hears Manitoba Metis Case


OTTAWA - More than 140 years after the guns were put away, the last battle in the rebellion that brought Manitoba into Confederation is about to be fought.

Lawyers are to argue in front of the Supreme Court on Tuesday that the federal government never lived up to the 1870 deal that settled the Red River Rebellion, fought by Metis struggling to hold on to their land in the face of growing white settlement.

"It's important for us to get right with our history," said Tom Berger, the legendary aboriginal rights lawyer who will represent the Manitoba Metis Federation in its last legal attempt to right what it calls the betrayal of a generation of Metis children, who lost their land and birthright.

"We have to remember our history and we have to remember that the Metis didn't go away. They're still here."

A Metis win would probably lead to high-stakes land-claim negotiations — and fulfil a prophesy made by Metis leader Louis Riel more than a century ago.

Sovereignty over the vast prairies west of Ontario was still uncertain in the immediate years after Confederation as the federal government negotiated with the Hudson's Bay Co. for control over half a continent.

White settlers from Ontario and the United States were pouring into what is now Manitoba, alarming Metis who had lived and farmed there for generations.

In an attempt to assert control, Riel declared a provisional Metis government in 1870 to negotiate with Ottawa — a government backed by armed Metis insurgents. In response, the federal government passed the Manitoba Act, which carved the province out of the sprawling region called the Northwest Territories and established Canadian dominion.

The act promised 5,565 square kilometres of land would be set aside for the 7,000 children of the Red River Metis.

However, it took 15 years for those lands to be completely distributed. Meanwhile, large numbers of new settlers continued to arrive, some of whom were openly hostile to the former rebels. The Metis were beaten and even killed.

"A lot of our people went into hiding," said David Chartrand, president of the Manitoba Metis Federation. "Some of them, if they were white enough and spoke French, they said they were French-Canadian so they could protect their children."

The land was ultimately distributed through a random lottery, which allotted children parcels of land far from that of their parents or other Metis, destroying any chance of a Metis homeland. Some children only got scrip redeemable for land.

Speculators snapped up much of it for a fraction of its value. Many Metis fled the region they had occupied for generations and headed further west.

Berger argues what happened was a failure of the Crown's duty to look after the interests of the children and a betrayal of the land grant's intent.

"A fiduciary is somebody who accepts responsibility to protect the interests of a person or a group that is legally vulnerable," he said. "They had that responsibility to the Metis settlers and the 7,000 children."

He points to statements made in the House of Commons by then prime minister Sir John A. Macdonald.

"No land would be reserved for the benefit of white speculators, the land being only given for the actual purpose of settlement," Macdonald said on May 4, 1870.

His Quebec lieutenant, George-Etienne Cartier, said 11 months later that: "Until the children came of age, the government were the guardians of the land and no speculators would be suffered to get hold of it."

As well, Berger points out Macdonald said the land was granted to extinguish Metis aboriginal title to the land, which means Ottawa owed them the same level of care owed other First Nations.

Crown lawyers argue that the Metis were consulted and that the land was, in fact, distributed. They also say that the statute of limitations has long run out.

It's too late to go back and try to understand Riel's and Macdonald's intent, say Crown court documents.

"Proceeding to consider the claims forces the defendant...to respond to allegations made on the basis of a documentary record alone without witnesses who could explain the facts or fill in the gaps. Assessing this century-old documentary record against modern legal standards compounds the potential for unfairness."

The court action asks only for a declaration that the Crown didn't live up to its duty, but Chartrand acknowledges that it wouldn't end there.

"It would potentially lead to a land claim," he said.

"It would lead to some outcome, 'What is Canada going to do about it?' Where that takes us, I don't know."

Chartrand said he hopes to change how Canadians understand their past.

"They took away children's land. This country needs to know that."

The case is also a chance to restore Metis pride, said Chartrand.

"John A. Macdonald said our people would be vanished in 100 years. Riel said my people would rise in 100 years.

"It's 100 years now — and we're rising."

By Bob Weber in Edmonton