MMF Land Claim (1 of 4) QB Decision - Dec. 7, 2007

8/2/2019 MMF Land Claim (1 of 4) QB Decision - Dec. 7, 2007

http://slidepdf.com/reader/full/mmf-land-claim-1-of-4-qb-decision-dec-7-2007 1/100

,

COURT OF QUEEN'S BENCH OF MANITOBA

BETWEEN:

MANITOBA METIS ' FEDERATION . INC., YVON

DUMON T, B ILLYJO D E LA RONDE , R OY CHARTR AND,

RON ERICKSON, CLAIRE R IDDLE, JACK FLEM ING,JACK M cPHERSO N, DO N ROU LETTE, ED GAR BRU CE

Jr., FREDA LUNDMARK, M ILES ALLARIE , CELIA

KLASSEN1 ALMA BELHUMEUR, STAN GUIBOCHE,

JEANNE PERR AULT, M ARIE BANKS D UCHARM E andEARL HENDERSON,

Plaintiffs,

- and -

ATTORNEY GENERAL OF CANADA· and ATTORNEY

GENERAL OF MAN ITOBA ,

Defendants.



TABLE OF CONTENTS

Introduction ,.~ II .~ •• 1111 11•••••• , II 1 ,,, IIIi ,.1. 1

Overview of Tria l Materia ls 3

. H is to ric al Background

• Facts up to July 15, 1870 11

• Facts Materia l to Implementation of Section 31 G rants 51

• Facts Materia l to Im plem entation of Section 32 Grants 86

Stand ing . .~. • t : • • i ' I••••••••.•• tI •••••••• I I.I ••• I- 115

L lrn lta tlo n o f A ctio ns ... 11 •••••• ••• · ••• •• '••• • ' ••• , •• · •• ••••• , . • •• ••• · •• •••••• ••••••• •••••• •• , ••••• , ••••••• •••••• ••• 138

The Doctrine of Laches 153

W as There a Treaty or A greem ent? 160

The Manitoba Act a nd th e M an ne r o f its In te rp re ta tio n 174

In terp re ta tio n o f th e Manitoba Act

• The Integrity of the Crown ~ 178

• The NowegijickPrinciple 179

• P rotection of M inorities 185

• Use of Hansard 189

In terpretation of S ection 31 of the Manitoba Act 190

• Aboriginal T itle 193

• W ere the Metis of Manitoba, Indians? 203

• Fiduciary- Duty ••II ' tI· ••• J •••••••• · •••••••••••••••• , ••••• , ••••••• , 1••••••• 212

• Honour of the Crown ; 217

The Manitoba Act - Section 31- Conclusion 221

The Manitoba Act - Section 32 - Conclusion 231

Impugne d Ena ctments• Provincia l til r.t: 11 , , "11 1·.· ,,.. 1•< ••• • •• • • · ~ ••• . • . • I ~ ~ • 238

• Federal ; 272

The Doctrine of Paramountcy .- 299



O i )

The Federal Power of D isallowance 308

Implementation of Section 31 G rants 312

Implementation of Section 32 G rants 353

Conduslon I 'I • •• •• •• iI •••••••••• , ••••••••••••••••••••••••••••••• , : 11 . 111 390

A pp end ix - A utho ritie s P rovid ed



Date: 20071207

Docket: CI 81-01-01010

, (Winnipeg Centre)

Indexed as: Manitoba Metis Federation Inc. et al: v.

Attorney General of Canada et al.

Cited as: 2007 MBQB 293

COURT OF QUEEN'S BENCH OF MANITOBA

BETWEEN:

MANITOBA METIS FEDERATION INC., )

YVON DUMONT, BILLYJO DE LA )

RONDE, ROY CHARTRAND, RON )ERICKSON, . CLAIRE RIDDLE, JACK )

FLEMING, JACK McPHERSON, DON )

ROULETTE, EDGAR BRUCE Jr., FREDA )

LUNDMARK, MILES ALLARIE, CELIA )

KLASSEN, ALMA BELHUMEUR, STAN )

GUIBOCHE, JEANNE PERRAULT,MARIE )

BANKS DUCHARME and EARL)

HENDERSON, )

)

Plaintiffs, )

)

- and - )

)

ATIORNEY GENERAL OF CANADA and ) ,

ATIORNEY GENERALOF MANITOBA, )

)

Defendants. )

MacINNES 1.

I N T R O D U C T I O N

APPEARANCES:

For the Plaintiffs:

Thomas R . Berger, Q.C..

James R. Aldridge, Q.C.Harley 1. Schachter

M. Bartley

For the Defendant

Attorney General of Canada:

Robert A. Dewar, Q.c.Paul R. Anderson'

Cary D. Clark

For the Defendant

Attorney General of Manitoba:

Heather S. Leonoff, Q.c.JayneL. Kapac

Judgment delivered:

December 7, 2007

[1] The plaintiffs assert that the Metis people of Manitoba have suffered an

historic injustice, namely, the loss of a land base which they were to have



Page: 2

received under the Manitoba Act, 1870 (Can.), 33 Vict., c. 3, S.c. 1870, c. 3,

reprinted in R.S:C. 1985, App. II, No.8 (the "Act"), upon Manitoba's entry into

the Canadian Confederation. They sue the defendants for certain declaratory

relief. Their purpose in seeking such relief is simply to assist them in future

negotiations with the Governments of Canada and Manitoba to achieve a land

claims agreement and thereby correct the asserted historical wrong.

[2] The Manitoba Metis Federation Inc. (the "MMF") is a Manitoba

corporation, incorporated October 1, 1967. It says it presently represents

approximately 130,00'0Metis people resident in ~anitoba.

[3] The individual' plaintiffs, are Metis, and alleqe they are' 'descendants.of

persons referred to in the A ct as "half-breeds" entitled to land pursuant to

section 31, and to land and other rights under section 32 of the Act.

[4] None of the plaintiffs brings any claim for individual or personal relief.

[5] The declaratIons sought by the plaintiffs are as follows:

(1) that certain enactments (both statutes and orders in council) were

ultra vires the Parliament of Canada and the Legislature of

Manitoba, respectively, or were otherwise unconstitutional;

(2) that Canada failed to fulfill its obligations, properly or at all, to the

Metis under sections 31. and 32 of the Act, and pursuant to the

undertakings given by the Crown;



Page:3

(3) that Manitoba, by enacting certain legislation and by imposing

taxes on lands referred to in section 31 of the Act prior to the

grant of those lands, unconstitutionally interfered with the'

fulfillment of the obligations under section 31 of the Act; and

(4) that there was a treaty made in 1870 between the Crown in right

of Canada and the Provisional Government and people of Red

River.

[6] For the reasons which follow, I am not prepared to grant any of the

declarations sought by the plaintiffs and accordingly dismiss their claim.

[7] All of the parties sought costs in respect of this litigation. The general

rule is that costs follow the event. But often, depending upon the nature and

circumstances of the litigation, the general rule is not followed. In this case,

none of the parties have argued in respect of costs. In the circumstances, I

intend to leave the matter of costs to the parties. If they are unable to reach

agreement as to disposition of costs, costs may be spokento.

,

O V E R V I E W O F T H E · M A T E R IA L (E V ID E N C E A N D A R G U M E N T S )

P R O V ID ED A T T RI A L

[8] There are 56 trial exhibits. Exhibit 1 consists of 58 three-ring binders

containing 2,068 documents, someof which are CD-ROMscontaining voluminous

materia! and others of which, though in hard copy, are multi-paged. Many of the

. documents within this exhibit were obtained from official archives. Of those,



Page:4

many were in handwriting and many were in French.,.Many had to be translated

from French to English or reproduced in typed form, or b.oth. Counsel did an

excellent job of providing these,documents or copies of them in legible form. In

many instances, the original text is difficult to decipher and there are therefore

uncertainties as to it. I am satisfied, however, that such shortcomings are not

material in deciding the case.

[9] The plaintiffs called only one trial witness, David Chartrand, president of

the MMF. As well, they read into the record certain answers provided by

representatives of the defendants on examination for discovery and otherwise

relied upon the documents filed as exhibits.

[10] Canada called four witnesses, three of whom, Dr. Gerhard J. Ens

("Dr. Ens"), Ms. Catherine Macdonald ("Ms. Macdonald',), and Dr. Thomas

Flanagan ("Dr. Flanagan''), were expert witnesses. Dr. Ens and Ms. Macdonald

are historians; Dr. Flanagan is a political scientist. Canadafiled, by consent, the

reports of those expert witnesses, namely:

• Report of Dr. Ens entitled "Settlement and Economy of the Red River

Colony to 1870";1 .

• Report of Ms. Macdonald entitled \\Eventsof the Red River Resistanceof

1869-70,,;2

1Exhib it 1 4

2 Exhib it 1 6



Page: 5

• Report of Dr. Flanagan entitled "Historical Evidence in the Case of

Manitoba Metis Federation v. the Queen,,;3

• Report of Dr. Flanagan and Dr. Ens entitled "Metis Family Study,,;4

• Report of Dr. Ens entitled "Migration and Persistence of the Red River

Metis 1835-1890";5

• Report of Dr. Ens entitled "Manitoba Metis Study - The Metis Land Grant

and Persistence in Manitoba".6

As well, Canada filed, by consent, the report of Steven E. Paterson entitled "Land

Grants for Loyalists". 7

[11] In addition" Canada called Bradley Morrison ("Mr. Morrison''), a lawyer

presently employed as a researcher with the Department of Indian and Northern

Affairs Canada and manager of Claims Litigation within the Manitoba region. He

led a group of federal employees under the direction of Dr. Ens who prepared a

.series of maps and a booklet of those maps entitled "Metis Land Grants Manitoba

Act". The booklet was filed as Exhibit 25 and the enlarged -individual maps

contained within the booklet were filed as Exhibits 28, 29, 31, 32, 33 and 34.

Filed as Exhibit 24 was Mr. Morrison's report entitled "Mapping of Metis Land

Grants Methodology",

3 Exhibit 18

"Exhibit 19

5 Exhibit 35

6 Exhibit 36

7 Exhibit 44



Page:6

[12] Canada also read into the record certain answers from the examinations

for discovery of Mr. Chartrand and the individual plaintiffs.

[13] Manitoba called Russell Davidson ("Mr. Davidson'') as a witness. He is a

lawyer and is the senior deputy district registrar of the Winnipeg Land Titles

Office. He testified in respect of The Land Registry Act and The Real

Property Act of Manitoba and more specifically as to the procedures and

aCtivities of the Land Titles Offices in Manitoba. As well, he reviewed and

provided an interpretation of many historical documents filed with the LandTitles

Offices pertaining to the grant and the landholdings, or disposition thereof; of

Metis under the Act.

[14] ,Manitoba also read into the record certain answers from the examinations

for discovery of the lndlvtdual plaintiffs.

[15] Following completion of the evidence, I received a 42S-page written

argument from plaintiffs' counsel, together with copies of statutes, federal and" ... I

provincial, federal orders in council, and seven 3-ring binders of legal authorities.

I then heard oral argument from plaintiffs' counselfor two weeks.

[16] I received written argument from counsel for Canada consisting of 226

pages plus two appendices, one of which was an 8S-page statement of material

facts, and seven 3-ring binders of legal authorities. I heard oral argument from

Canada'scounsel for approximately 3V2 days.



Page: 7

[17J As well, I received a 73-page written argument from counsel for Manitoba

together with a booklet of Manitoba statutes and two 3-ring binders of legal

authorities. I heard oral argument from counsel for Manitoba for approximately

one day.

[18J Finally, I received a 52-page written document entitled "Plaintiffs' Notes

for Reply" and heard argument in reply for approximately 2V2 days.

[19] I have described the nature and volume of the materials provided during

the course of the trial and in argument for a particular reason. As is clear, the

material factual underpinnings of this case relate to events that occurred in or

around 1870; shortly before and for about 15 years thereafter. Obviously, none

of the participants in those events is alive. The live witnesses from whom I

heard were Mr., Chartrand, whose evidence related essentially to the MMF in

respect of the issue of standing in this litigation, and the experts to whom ,I have

referred who had done extensive historical research and compiled relevant

historical documents. Aswell, Mr. Morrison, who had created documents based

upon his interpretation of historical documents/ and Mr. Davidson, who testified

from an historical perspective advising of the practices of the Manitoba Land

Titles Office system and who interpreted historical documents pertaining to the

landholdings of individuals shortly following 1870.



Page: 8

[20] Ms. Macdonald commented on the reliability of the hlstorlcal evidence as it

pertained to her report." Her comments can be found at pp. 3 th'rough 5 of her

report under the heading "The Evidence". Some of those comments are the

following:

The.available archival evidence for the Resistance[referring to the

Red River Resistance 1869-70] is abundant but it displays defects in

quality and coverage that are common with most historical evidence. All

of the surviving sources need to be read in the light of the biasesof theirauthors....

The French Metis side of the conflict is less well served by. thedocuments that have made their way into archives. Riel himself made a

few attempts to record his version of ,events..... But Riel's memoir i~ not

particularly informative. In ft he is concerned with pleading' his case for

an amnesty for himself and,others who participated in the Resistanceand

factual explicationWasa secondary concern. ... '

For the crucial period of time between the arrival of the Canadian

Dawson Road construction crew in late fall of 1868 and the first of the

French Metis protest meetings in July of 1869, there are only C ) few

sourceswith which to piecetogether what people were doing and saying

within the French Metis community. Most important of these :are FatherNoel-Joseph Ritchot's two notebooks in which he recorded a memoir of

this early period of the Resistanceand in which he wrote a record of the

proceedings of meetings of the Metis National Commit tee between

..October 20 and November 6, 1869. These notebooks present some

evidentiary problems. They are extremely difficult to read. Quite apart

. from Ritchot's iUegib.lehandwriting, the notebooks contain several torn

pages and numerous large ink blots which obscure text. Philippe Mailhot,

who wrote. a Ph.D. thesis on Ritchot, contends that Ritchot deliberately

tore pages..and placed ink blots over passagesof hls notebooks in order

to prevent people from reading what was on those pages. Mailhot thinks

that Ritchot was thereby attempting to minimize his role in theResistance. A further difficulty with the notebooks is that there is no

indication of when they were composedexcept that internal clues point to

a composition date sometime after the events described in Notebook 1.

Mailhot's contention cannot be proved conclusivelyone way or the other,

but the ink blots and tears are too deliberately placed to have been

accidental. However, even if Ritchot or someone else later edited his

8 Exhibit 16



Page:9

notebooks, the parts of the text that are still readable are valuable and

cannot bediscounted, though they should be usedwith caution.

In my view, similar comments may be made about the writings of Father Noel-

Joseph Ritchot C'Ritchot") for the period March 24 to May 28, 1870,9 referred to

in this caseas "Ritchot's diary".

[21] Lastly, Ms.Macdonaldwrote:

For the purpose of describing the makeup and rationale's behind

factions, both the evidence in English and in French must be used

cautiously. An opinion expressed in a letter by one individual, even if he

or she was an influential person, cannot be extrapolated, by itself, to

describethe opinion of a whole group of people.

These comments of Ms. Macdonald were made as part of her report. In my

view, however, they have broader application than simply to her report. They·

should be taken to apply to the historical evidence that generally provides the

factual basis for this entire case.

[22] A further need for caution, in my, view, applies in respect of the

Parliamentary Debates, both those between May 2 and May 12/ 1870,

pertaining to the introduction of and debate upon the Bill that ultimately was

passed as the Act and subsequent debates in Parliament from time to time

pertaining to that Act and to its implementation. I do not mean by these

comments to be in any way disrespectful of members of Parliament or of

politicians generally. However, in my view, when one reads the Parliamentary

Debates, one can discern the biasesof the speaker, including biasesdependent

9 Exhibit 1-0005



Page: 10

upon whether the speaker is a member of Government or of the Opposition.

This, in my view, is doubtless one of the several reasons for judicial decisions

which allow for the admissibility of such debates into evidence at trial, but

caution as to the degree of weight to be given to such debates.

[23] The plaintiffs took the position that with the historical documentation

available, it was tantamount to having the witnesses' viva voce testimony,

particularly as regards the 'discussion or negotiations between the Red River

delegates and Sir John A . Macdonald ("Macdonald'1 and Sir George Etienne

Cartier ("Cartier") relative to the passageof the Act. But having so argued, the

plaintiffs also argued that, when dealing with the question of implementation of

both sections 31 and 32 of the Act,. one could not wholly rely upon written

documents. They asserted that while documents such as abstract pages-from a

land registry office were provided no doubt with a high degree of accuracy, still

no certain insight could be gained from such documents either as to what may

have proceeded or been incidental to the execution of such documents or as to

whether that which was recorded in the documents actually occurred. This, of

course, is one of the difficulties with this entire case where, in order to obtain

reliefl a sound factual background must be provided whereas even the plaintiffs

acknowledge that while documents record information, there is contextual

uncertainty as to the degree of reliability of the documents.



Page: 11

[24] While it is unfortunate that this must be so, it is no different than many

other cases which have come before the courts, particularly aboriginal cases

which often in point of time are aged and historical.

[25] I was cautioned by counsel, particularly plaintiffs' counsel, that my task.is

not to rewrite history. For that I am thankful. Rather, my task is to decide the

issues raised in the litigation on the basis of the evidence introduced. But in

conslderlnq the evidence, I must be alive to the frailties of this kind of evidence,

particularly from the standpoint of reliability and authoritative scope.

[26] While I do not purport to be rewriting history, I will, for purposes of

context, set forth what I believe to be the relevant historical facts. I propose to

set forth such facts under three separate headings:

(1) facts up to the effective date of the Act, July 15, 1870;

(2) facts material to the implementation of the section 31 grant; and

(3) facts material to the implementation of the section 32 grant.

I will then deal with the specific issuesargued by the parties.

H IS TO R IC A L B AC K G RO U N D

(I) Facts UP to the Effective Date of the Act, July IS, 1870

[27] In 1670, the Hudson's Bay Company (the "HBC"), under license from the

British Crown, acquired Rupert's Land, a vast land mass extending from Lake



Page: 12

Superior to the Rocky Mountains, including land in what is now the north central

United States.

[28] On June 12, 1811, the HBC granted a tract of land in Rupert's' Land to

Lord Selkirk. Without describing the tract in any detail, it inCludedterritory far

beyond the boundaries of the RedRiver Settlement (the \\Settlement'') of 1870.

[29] Lord Selkirk thereupon brought Scottish immigrants to Red River. They

settled in Kildonan Parishalong the Red River north of the confluence of the Red

and Assiniboine rivers (the "Forks',). In 1817, Lord Selkirk entered into a treaty

with a number of Indian. bands thereby effectively extingujshing Indian tltle to

land which stretched two miles back from either side of the Red River from the

point where it entered into Lake Winnipeg to a point south/ located at what is

now Grand Forks, North Dakota; and similarly two miles back from either side of

the Assiniboine River from the Forks to a point west of present-day Portagela

Prairie. The two-mile strip of land on either side of both rivers became known as

the "Settlement Belt".

[30] In addition to these Scottish immigrants, the Settlement grew as a home

for fur trade company employees who were retired from or surplus to the HBC

and the North West Company. This was particularly so after the two companies

merged in 1821 and there occurred a ranonal lzanon of operations, resulting in

posts being closedand officers and servants being let go.



Page: 13

[31] Parishes were organized in the Settlement Belt, and to a lesser extent

beyond, according to religion and language. Along the Red River, the parishes

north of the Forks were all English speaking and Protestant. Those south of the

Forks were all French speaking and Roman Catholic. As well, parishes were

organized along the Assiniboine River west of the Forks. Those parishes,

although still organized according to religion and language, were mixed; that is,

somewere English Protestant parishesand some were FrenchCatholic parishes.

Many of the inhabitants, indeed the majority, were of mixed ancestry.

[32] I note that at the material time, those of mixed English and Indian

ancestry were called "half-breeds" and those of mixed French and Indian

ancestry were called "Metis'l. The Act called both "half-breeds", Today,

however, both are called "Metis", In this judgment, my use of the phrase

"English halt-breeds" will refer to those of English and Indian ancestry, and my

use of the phrase "French Metis/l will refer to those of French and Indian .

ancestry at the material. time. My use of the word "Metis" will refer to both the

Englishhalf-breeds and the FrenchMetis, then and now.

[33] For a period of time betWeen Lord Selkirk's death in 1820 and

approximately 1835, the Settlement was administered by his executors in

conjunction with the HBC. In approximately 1835, the HBC purchased the

interest of Lord Selkirk's estate in the grant which had been provided to him in

1811and assumedthe rights so granted..



Page: 14

[34] In 1835, the governor of the HBC commissioned George Taylor to survey

settled portions' of the Settlement (the "Taylor Survey"). The Taylor Survey

covered approximately 20 miles on either side of the Forks along the Red River

-and approximately 25 miles from the Forks west along the Assiniboine River. It

contlnuedand/or confirmed landholdings in long, narrow lots that fronted on the

rivers and stretched back the two-mile limit of the Settlement Belt.

..

[35] The Settlement was laid out in such lots, which were numbered from 1 to

899 on the Red River and from 911 to 1528 on the Assiniboine River. Once the

Taylor Surveywas completed, the HBC began entering the names of the legal

owners 'of the lots (l.e., those who had received a form of title from the HBC) in

a land registry' book called I\RegisterBI1. But, registration of land ownership.was

voluntary and as land changed hands, registration of ownership, often dld no t

occur.

[36] As well, there was a tradition of land tenure in the Settlement based on

occupation. This occurred largely, but not exClusively,outside the limits of the

Taylor Survey. Some of this land was inside the Settlement Belt and some of it

was outside, Indian title had been exting-uished respecting land- inside the

Settlement Belt by reason of the Selkirk Treaty. (or PeguisTreaty) of 1817, but

contlnued respecting land outside the"Settlement Belt. The HBCdid nothing to

prevent such land tenure basedon occupation.



Page: 15

[37] Following the merger in 1821 of the North West Company and the HBC,

the new governor, Sir George Simpson, in order to persuade the large French

Metis settlement at Pembina (approximately 70 .miles south of the Forks and

since 1818 in American territory). to relocate on British territory, granted their

leader, Cuthbert Grant ("Grane,), a tract of land on which to settle his kinsmen.

This land was on the Assiniboine River at White Horse Plains approximately 12

miles west of the Forks. Thus began a large French Metis settlement headed by

Grant, first known as Grantown but thereafter as the Parish of

st. Francols-Xavler.

[38] In addition to their land, the river lot owners enjoyed haying rights. Over

the years a practice developed of people cutting hay on the lands immediately

beyond the depth of their river lot. Commencing in approximately 1839, the

governing authority in the Settlement, the Council of Assiniboia began to pass

laws which gave river lot owners within the surveyed portion of the Settlement

Belt the exclusive right to cut hay for a further D N O miles beyond but within the

width of their own river lot during certain periods of the year. Accordingly, in the

area of the Taylor Survey, not only did the landowners claim the first two miles

from the river (the "inner two miles''), they also claimed a right of use over the

next two miles (the "outer two miles'') for haying purposes. Beyond the four

miles was what was considered"the common".

[39] Those lots which did not have access to an outer two miles due to the

course of the river or the junction of the two rivers were given hay privileges in



Page: l6

other areas. Until the date of the transfer of Rupert's Land to Canada, these

landholdings and usaqes were the "custom of the country" recognized by the

HBCand the Council of Assiniboia.

[40] There was also a practice of utilizing land outside of the Settlement Belt

for certain purposes, such as grazing or pasturing and cultivation. These lots

have been called "park lots" and consisted of choice pieces of prairie land on

which a settler would breakand cultivate a few acres.

[41] In the result, as of 1869, the system of land tenure in the Settlement was

varied and the recording of landholdings was, at best, sporadic. However, there

was a general acceptance of a land tenure system in the Settlement which

existed in one of four ways, either:

, , .

(1) by way of freehold grants from the HBC;

, ,

(2) by way of grants of estates less than freehold from the HBC;

, .

(3) by occupancywith the permission of the HBCwithin the Settlement

Belt, that is, where Indian title had been extinguished; and

(4) by peaceablepossessionoutside the Settlement Belt, that is, where

Indian title had not been extinguished.

[42] In addition, some residents enjoyed rights of cutting hay and rights of

common.



Page: 17

[43] In the early years of the Settlement, the economy was based primarily

upon farming and the buffalo hunt, both of which were essentially for

subsistencepurposesonly.

[44] Five acres was considered a large plot in the Settlement. Cultivated plots

were kept small by the level of farm technology and the absence of a market for

surplus production removed any incentive for enlargement.

[45] The buffalo hunt began in the 1820sas the buffalo were no longer located

as close to the Settlement as once they had been. But until the 1840s, the main

use of the buffalo hunt was for the purpose of personal or family consumption,

namely, clothing and food which .included the making of pemmican and some

small sale of it. There were twa hunts per year, the summer hunt" which

'generallydeparted in June and returned in late July or early August, and the fall

hunt, the smaller of the two! which began in early October with the hunters

returning in November.

[46] In the 18405, the economy of the Metis began to change. The HBC

monopoly began to weaken and some markets began to open up. The Metis

increasingly took advantage of these opportunities and became more involved as

traders. In particular! a buffalo robe trade emerged and the Metis found a

market trading with both the HBC and others! including traders in the United

States, in return for cash.



Page: 18

[47] In 1844, a trading post at Pembina had the effect of bringing the

American market near the Settlement. From 1844 until 1869, there was a

significant increase in trade between the Settlement and St. Paul, Minnesota, and

a significant increase in the dollar value of fur sales.

[48] The buffalo robe trade involved not only the hunting and killing of the

buffalo but its processing to a finished product ready for sate. The entire family

became involved in the operation. As a result, families were absent from the

Settlement during the hunt. This new economic activity and the absence of

families from the Settlement which it necessarily entailed, resulted in a lessening

of the rvtetis'pursuit of agriculture.

[49] The buffalo were becomingJncreasingly distant from the Settlement. But

the best robes were ebtained when the animal's coat-wasat its heaviest, namely,

in the winter. As a result, the buffalo robe trade lengthened-and changed

somewhat the period of the hunt as it necessitated prolenged absencesfrom the

Settlement for those involved, il'Jcludingleaving the Settlement to winter on the

plains. This also resulted in some leaving the Settlement permanently and

settling anew in areas closerto.where the buffalo.were located,

[50] As the buffalo robe trade was developing strength, agriculture

experienced several years of bad crops. From 1844 to. 1848, only once, 1845,

was the harvest sufficient to feed the Settlement. By the fall of 1848, the

Settlement was bordering on starvatien. The 1850s breught better crops, but



Page: 19

.the 1860s were again very poor. The combination of a strong buffalo robe

market and very poor crops led to increased abandonment of agriculture by the

Metis and some emigration from the Settlement to points west fallowing the

buffalo. By 1869, the buffalo were so far west and south of Red River that the

buffalo hunt no longer originated in the Settlement. .

[51] Canada became a country in 1867 under The British North America

Act (the "Constitution Act, 1867"). It consisted of four provinces, Nova

Scotia, New Brunswick, Quebecand Ontario, the western boundary of which was

at the head of LakeSuperior.

[52] The new country had no jurisdiction or authority west of present-day

Thunder Bay, but it had designs on further expansion. Section 146 of the

Constitution Act, 1867 provided for the admission of ather colonies or

territories, including "on Addressesfrom the Housesof the Parliament of Canada

... to admit Rupert's Landand the North-western Territory, or either of them, into

the Union, an such Terms and Conditions in each Case as are in the Addresses

expressedand as the Queen thinks fit to approve,..."

[53] To accommodate Canada's lntentlons for expansion, the Imperial

Government agreed to accept from the HBCa surrender of that part of its 1670

grant which was known as the North-western Territory and Rupert's Land and,

ultimately, to cede that land to Canada.



P ag e: 2 0

[54] Accord ing ly, Canada was required to negotia te an agreement w ith the

HBC for. the purchase of its interest in the land whereupon the HBC would

surrender-the land to Britain . In turn, Brita in, upon its approval o f the term s and

conditions for adm ission of Rupert's Land into Canada, would accept the

surrender from the HBC and would cede the land to Canada.

[55] B y a ddre ss d ate d D ecembe r 17, 1867, C an ad a re qu este d tha t the Im pe rial

Gove rnmen t -"un ite Rupert's Land and the North-western Territory w ith th is

Dominion".

[56] O n A pril 23, 1868, the Colonia l Secretary in B rita in advised that he was

w illing to recommend com pliance w ith the req uest, but to do so would require an

Act of the Imperia l Parliament. He placed a B i l l · be fo re th e Im peria l P arliame nt

w hich, e ffe ctive July 31, 18681b ecame th e Rupert's tand Act, 1868 (U.K~),

31 '" '3 2 Vict., C. 105 .10

[57] The purpose of that Act was stated therein as be ing:

An Act for enabling Her Majesty to accept a Surrender upon Terms of-the

Lands, Privileges, and Rights of "The Governor and Company of

Adventurers of England trading into Hudson'sBay," and for admitting the

same into the Dominion of Canada.

T he p re amb le to that Act prov ided, in part:

... It is expedient that the said Lands ... so far as.the same have been

: lawfully granted to the said Company, should be surrendered to Her" Majesty .... - .

Section 3 of that Act provided, in part:

10 Exhibit 1-0274



Page: 21

,.. provided, however, that such Surrender shall not be accepted by Her

Majesty until the Terms and Conditions upon which Rupert's Land shall be

admitted into the said Dominion of Canada shall have been approved of

by Her Majesty, and embodied in an Address to Her Majesty from both

the Houses of the Parliament of Canada in pursuance of the One hundred

and forty-sixth Section of the British North America Act, 1867....

[58] This necessitated communications and negotiations between Canadaand

Britain. These were carried on largely between Macdonald and Lord Granville

C'Granville''), British Secretary of State to the Colonies. In so doing! both

Macdonaldand Granville made use of Sir John Rose,who had been Macdonald's

Minister of Financefrom 1867to 1869 and thereafter was Macdonald'sconfidant,

working in London, England, and acting in some respects as a representative of

the Government of Canada, and Sir John Young ("Young''), who at the material

time was the Governor Generalof Canada.

[59] These communications and negotiations "between Canada and Britain

occurred for the most part between mid 1869 and mid 1870. But shortly before

and during that period, events occurred in the Settlement which affected the

governance of the Settlement and were material to the entry of Rupert's Land

into Confederation as the Provinceof Manitobapursuant to the Act.

[60] Until Manitoba was created, Rupert's Land, including the Settlement, was

governed by the HBC which had created a governing authority, namely, the

Council 'of Assiniboia. The Council's makeup included members of the

Settlement, some of whom were Metis, with the HBCGovernor at its head. In



Page: 22

the years leading up to unlon, that governor was William Mactavish

("Mactavis hIT).

[61] By 1868, the Settlement was aware of the intended union of Rupert's

Land with Canada.

[62] There existed some concern amongst the people in the Settlement as to

the consequences of this union. How would it ~ffect them, their culture and

customs? The concern was greater amongst the French Metis who were

essentially French-speaking Catholics. They were fearful of an expected influx of

lrnrnlqrants from Canada who would be English-speaking and Protestant, whose

coming, possibly in large numbers, they viewed as a threat to their language,

religion and culture, including customs and way of life.

[63] This concern was _exacerbated when the Canadian government sent a

road building crew to the Settlement in late October 1868. Canada's intention

was in part at least to alleviate starvation in the Settlement.

[64] But Canada had not advised of this intended activity and the first notice

that Mactavish or the community had of the expedition was the arrival of its crew

superintendent at the Settlement on October 27, 1868 to seek permission from

Mactavish to begin work. He granted permission, but the unexpected presence

of the work crew and its activities upset some of the resldents, in particular,

certain of the French Metis who were living on river lots which had not been

formally granted to them by the HBC.



Page:23

[65] Later, in June 1869, some FrenchMetis came upon individuals pacing out

lots near St. Norbert, supposedly for their own use. They confronted the

individualswho withdrew. On July 5, 1869, the French Metis of St. Norbert met.

They formed patrols to keepstrangers from establishing themselves on the land.

[66] On July 29, 1869, William Dease CDease'') and several other prominent

French Metis called a public meeting at the courthouse. Dease argued that the

£300,000 Canada had agreed to pay the HBCfor the transfer of lands was really

money which belongedto and should be paid to the people of the North-West as

the real owners of the land. Several FrenchMetis at the meeting, including John

Bruce ("Bruce'') and Louis Riel ("Riel''), spoke against Dease's plan and it was

soundly defeated.

[67] During this period the Settlement was no t kept officially informed of the

developments between the Imperial Government and Canada. Rather, the

information received in the Settlement camevia newspapersand rumor.

[68] Additional anxiety was aroused when, on August 20, 1869, a survey party

from Canada arrived at the Settlement under the leadership of Colonel John S.

Dennis ("Dennis''). The presence of Dennis and his survey crew unsettled the

French Metis in particular and especially those who occupied land without title

from the HBC.



Page: 24

[69] An unfortunate series of developments followed due in part again to a lack

of communication between Canada and those sent by Canada to deal with the

'land, and the people of the Settlement.

[70] On October 11, 1869, a survey crew projecting a baseline on the "hay

allowance" in St. Norbert was confronted by 16 French Metis, among them Riel.

The survey crew was turned back with Riel telling the crew it "had no right to

make surveys: without the express permission of the people of the Settlement".

The crew withdrew from St.:Norbert and was later directed by Dennis to survey

closer to the English parishes.

[71] From October 16 to 20, the French Metis held meetings at st. Norbert and

St. Vital. They formed the Metis National Committee with Bruce as President and

Riel as secretary and strategized as to what they would do.

[72] During the same period, October 1869, Macdonald sent William McDougall

C'McDougall") to Rupert's Land with a commission as Lieutenant Governor. The

intent Was that McDougal! would be present to assume control when the

expected transfer ·of Rupert's Land to Canada, scheduled for December 1, 1869,

took place.

[73] The Metis National Committee was aware this had occurred. On

October 21, 1869, a barrier was erected near St. Norbert on the road leading

from the U.s. border to Fort Garry and a dispatch was sent to McDougall warning

him not to enter the territory without the permission of the Committee.



Page: 25

[74] Nevertheless, on November 2, 1869, McDougall tried to enter Rupert's

Land but was turned back by a mounted FrenchMetis patrol. On that same day,

Riel and the French Metis seized Fort Garry, which was the Settlement's centre

and principal fortification, and mounted a guard of approximately 120 French

Metis to defend it.

[75] Followingthe FrenchMetis takeover of Fort Garry on November 2, Riel set

out to expand support in the Settlement -for what they had done. On

November 6, 1869, he issued a public notice inviting the English parishes in the

Settlement to send 12 representatives to meet with a similar number of

representatives from the Frenchparishesto form one body to consider the plight

of the Settlement.

[76] On November 16, 1869, those representatives, known as the Convention

of 24, convened at the courthouse in Fort Garry surrounded by French Metis

guards. On November 23, Riel announced that the French representatives

intended- to form a provisional government and invited the English

representatives to join them. The English representatives were taken aback by

this development. They said they would have to consult the people of their

parishes as they had no authority to do so. The meeting was adjourned until

December 1.

[77] The evidence is clear that by at least mid October 1869, Macdonaldwas

aware of the conditions and unrest in the Settlement and clearly understood their



Page: 26

significance. An agreement had been reached between Canadaand the HBCfor

purchaseof the territory with the anticipated transfer date of December 1, 1869.

Until then, however, the territory remained part of Briti'sh North America.

Canada had no authority over it. ' The HBC was in charge. But with the

anticipated transfer, the authority of the HBC and its willingness to actively

govern the territory was on the wane and was compounded by the serious illness

of Mactavish. And, of course, the French Metis had taken control of Fort Garry.

In the circumstances, there was really no authority within the Settlement willing,

able and lawfully entitled to govern.

[78] Canada had no authority to send troops to the Settlement to quell the

French Metis insurrection. Nor did it have the necessary troops. Moreover,

given the time of year, there was no accessto the Settlement other than through

the United States. But, at the time, there was a concern in. Canada about

possible annexation of the territory by the United States and hence a reluctance. '

on the-part of canada to seek permissionfrom the United States to send troops

across its territory to quell the insurrection and restore authority.

"[79) Macdonald concluded that the best approach would be 'to postpone the

transfer, including the payment of the money (£300,000) to the HBC. This

would result, he thought, in the HBCor Britain having to address the insurrection

as the governing authority of Rupert's Land and would avoid Canada having to

act. Aside from the logistics problem above described, Macdonald was

concerned that if Canada had to act, its conduct might create long-lasting



Page: 27

animosity between the inhabitants of the Settlement and the government, which

could detrimentally affect the union of Rupert's land with Canada, the

development of the new province, and Canada's vision of expansion to the

Pacific.

[80] Accordingly, Macdonald told Young of Canada's desire for a delay in the

transfer of Rupert's Land and the North-western Territory until quiet possession

could be given. 11 On November 26, 1869, the Governor Genera! cabled

Granville, communicating the request for deJay.12Granville rejected it. But in

the meantime, becauseof this concern and request, Macdonald, on November

27, 1869,13wrote McDougalladvlslnq him to stay in the United States and not to

proclaim his authority over the territory on December 1 as he had been

. previously directed to do.

[81] Regrettably, in the early morning hours of December· 1, not having

received Macdonald's November 27th letter, McDougall entered a short distance

into Rupert's Landand read his proclamation of takeover. The proclamationwas

posted in the Settlement.

[82] The Convention of 24 which was to meet in any event on December 1 did

so, and the proclamation was read. A discussionthen ensued as to the rights of

11 Exhibit 1~0329

12 Exhibit 1~a330

13 Exhibit 1-0332



Page:28

the people of the Settlement and as to a guarantee of those rights, The French

Metisdrew up a list of rights consisting of 15 clauses (the first list of rights).14

[83] The list was discussed and adopted by the Convention of 24 as the

conditions upon which the people of Rupert's Land would enter into

Confederation. The list provided amongst other things that Rupert's Landwould

join Canadaas a territory/ not a province. It required that Canadaconclude and

ratify treaties with the several tribes of Indians in the territory "to ensure peace

on the frontier". But/ it made no provision for denominational schools or for a

landgrant to the children/ including the children of the Metis._

[84] Upon publishing his proclamation/ McDougall also issued a commission to

Dennis appointing him his Lieutenant and Conservator of the Peace.15 Dennis

was given the responsibility of raising a force to "attack, arrest, disarm or

disperse the said armed men so unlawfully assembled",

[85] On December 6, 1869, Dennis published his commiSSionin the Settlement

with a notice of his own attached to the bottom. He called upon all loyal men of

the North-western Territory to help him accomplish this. Over the next short

period/ attempts Were made to rally members of the community against the

French Metis. However, upon seeing the first list of rights/ the community

considered them reasonable and was not prepared to become involved in a

14 Exhibit 1-0344

15 Exhibit 1-0339



Page:29

conflict with the French Metis who had been and. were residents of the

Settlement.

[86] The result of all of this was that Canada was now effectively but not

legally in charge of the territory and without any ability to gain control of its

governance. Thus, Macdonald and Canada had to find a way to maintain peace

in the Settlement while obtaining approval from Britain of the terms and

conditions upon which Rupert's Landwould be admitted into canada , and while

arranging for the transfer of Rupert's Landto Canada.

[87] To this end, Donald A. Smith CSmith'')r Chief Agent of the HBC at

Montreal, was sent to the Settlement as a Special Commissioner. He followed

'shortly upon two others, ReverendThibault and Colonel DeSalaberry, who had

been sent in a similar capacity. Smith arrived at the Settlement shortly after

mid-December 1869. He reported,to Macdonald

15

and Macdonald wrote him on

_January 31 1870.17 In his letter, Macdonaldstated:

I have read again the claims set up by the insurgent Half-breeds, some of

which are altogether inadmissible,and I now proceed to state to you

what we are willing to concede.

He then provided somedetail of that.

[88] Macdonaldalso wrote in his letter:

You are authorized, to invite a delegation of at least two residents to visit

Ottawa for the purpose of representing the claims and interests of

Rupert's Land. The representation of the Territory in Parliament will be a

matter for discussionand arrangement with such delegation.

16 Exhibit 1-0365

17 Exhibit 1-0372



Page: 30

And:

The Indian claims, including the claims of the Half-breeds who live with

and as Indians, will be equitably settled.

There is no general HomesteadLaw in Ontario as you state in your letter,

but you can assure the Residents that all titles to land held by residents

in peaceable possession will be confirmed, and that a very liberal land

policy as to the future settlement o f the Country will be adopted.

Theseare, Ithink, the principal paints alluded to in your letter,...

[89] Smith met with the community on January'19 and 20, 1870. Following

this meetinq, what had been the Convention of 24 was expanded into the

Convention of 40 (20 Frenchand 20 English representatives).

[90] The Convention of 40 met between January 25 and February 10, 1870.

The newspaper, The New Nation, provided an ongoing account of the

proceedings of the Convention of 40 during that period. 18 On February 5,

according to a report in TheNew Nation,Smith, in speaking to the Convention of

40, said:

1 have now on the part of the Dominion Government and as

authorized by them to invite a delegation of the residents of Red River to

meet and confer with them at Ottawa.... A delegation of two or more of

the residents of Red River _..:....s they may think best - the delegation to

confer with the Government and Legislature, and explain the wants and

Wishesof the RedRiver people, as well as to discussand arrange for the

representation of the country in Parliament....

[91] On February 10, the Convention of 40 agreed to an amended list of rights

(the second Iist).19 While somewhat different than the first list, it still provided

that the area would unite with Canadaasa territory. Provincehood would follow

18Exhibit 1-0386

19 Exhibit 1-0394



Page:31

at some future time. The demand for the conclusion of treaties with the several

Indian tribes of the territory continued and there was provision for voting rights

but which excepted "uncivilized and unsettled Indians". Still, however, there was

no provision for denominational schoolsor for a land grant to the children.

[92] During this period, Macdonald continued to press Granville for

confirmation that Britain would send troops to ensure a peaceful transfer of the

territory to Canada. Granville ultimately confirmed that Britain would do so but

imposed two conditions, variously worded but in essence,that simultaneouswith

the commencement of the expedition, the territory would be taken over by .

Canada,and that reasonableterms would be arranged with the RedRiver people

so as to take away from the expedition any appearanceof coercion.

[93] Unrest continued within the Settlement during the period December 1,

1869 through February 1870. This included attempts or threatened attempts to

overthrow Riel and his governing party. There were arrests made byRiel and his

followers, releasesfrom arrests, and in some cases re-arrests of opponents who

while under arrest were imprisoned in Fort Garry.

[94] Thomas Scott, who had been arrested and in early January had escaped

from prison in Fort Garry, was re-arrested and, imprisoned. On March 4,

following a brief court martial, ThomasScott was executed.

. [95] In the final days of the Convention of 40, the representatives agreed to

form a Provis lona l Government and to send three delegates to Ottawa. The



Page: 32

delegates were Ritchot, Judge John Black ("Black"), and Alfred Scott. They were

each provided With a letter of instructions dated March 22, 1870 and a further

list of rights (the third list) from the Provisional Government. 20

[96] The third list provided, amongst other things, for the territories known as

Rupert's Land and North-western-Terrltorv to enter Confederation as a province

and for the local legislature of theprovince to have full control over the public

- lands of the province. The provision as to' treaties remained as did the 'Provision

exceptIng Indians from the right to vote. However, there still was no provision

for denominational schools or 'for a land grant' for children.

[97] The letters of instruction told the delegates that they were free to use

their judgment with respect to certain of the clauses on the list of rights but that

certain others were compulsory. Moreover, the delegates were specifically told

that they were not empowered to conclude, finally, any arrangements with t,he

Canadian government.

[98] The third list of rights was not the final list. It appears that Ritchot carried

a list that differed from the third Iist.21 It included, for the first time, a demand

for denominational schools, and the 'first clause of the list had also been added

to provide for a senate analogous to Quebec's Upper House. Still, however,

there was no provision for a children's land grant.

2 0 Exhibit 1-0424

21 Exhibit 1-0431



Page:33

[99] The delegates left the Settlement on March 24, 1870 and arrived in

Ottawa on April 11. In due course, discussions commenced between the

delegates from Red River and Macdonald and Cartier as representatives of

Canada.

[100] In addition, Granville sent Sir Clinton Murdoch C'Murdoch'') to Ottawa, not

to directly participate in the discussions but to be present and available to

Macdonaldand Cartier so that Granville might be kept apprised of developments

in the discussionsand he, Granville, might keep Macdonald and Cartier apprised

of Britain's position in respect of them. As well, Lord Northcote was present

from Britain apparently representing the interests of the HBCthough he, too, did

not participate in the discussions.

[101] The discussions between the Red River delegates and Macdonald and

Cartier beqan on April 25, 1870. On May 2, Macdonald introduced for first

reading in Parliament the Bill that was to become the A.ct, although the Bill was

not presented in Parliament in printed form until May 4, 1870.

[102] Some understanding of the discussions between the Red River delegates

and Macdonaldand Cartier can be gleaned from a series of documents, including

Ritchot's diary,22 excerpts from Northcote's diary, 23 the speeches made by

Macdonaldand Cartier in Parliamentconcerning the BilI,24and other documents.

22 Exhibit 1-0005

23 Exhibits 1~0436 and 1,-0477

24 Exhibit 1-0467



Page: 34·

[103] It is clear from the evidence that Macdonald and Cartier intended that

'Rupert's Land would enter Confederation as a territory not asa province, With

Canada having legal jurisdiction and control over and effectively governing the

territory. And, based upon the first and second lists of rights, this/ too, was the

intent of the Settlement. But the third list and fourth list (carried by Ritchot

alone) had the territory entering as a. province with the same rights as were

enjoyed by the four extant provinces of Canada, including ownership over the

public lands. And this was the position advanced by the Red River delegates in

the discussions.

[104] Macdonald and, Cartier ultimately accepted the creation of the new

province but on the condition, unlike the four extant provinces, that Canada

would retain ownership of the public land. Insight into the reasons for that is

found in excerpts from Ritchot's diary, Northcote's diary and from speeches of

Macd.onaldand Cartier in Parliament.

[105] In his diary, Ritthot records an entrY for Wednesday,April 27:25

Wednesday, at 10 o'clock, we met again at the house of Sir George. Sir

John and Sir George were present. They presented us with a draft of a

bill, which we discussed at length, then came the question of lands and

the control of lands. The plight of the Company played a certain role

here, the sale approved by England, the rights of the Indians, the survey,

the works to be undertaken, etc....

[106] Northcote also kept a diary of events, He recorded the following

discussionon May 2, 1870 between himself and Cartier as fOUOWS;26

25 Exhibit i -ODDS, page 140

26 Exhibit 1-0436, pages 96 and 97



P age: 3 5

He [referring to Cartier] said, "We propose to form a small province and

to give it a constitution which will be fit for it, but we do not mean to give

the local legislature power over the lands, becausewe have to provide for

the extinction of the Indian title/ for our engagements to the H.B. Co.,

and for the construction of a Railway. We therefore mean to keep the

power of dealing with the lands in our own hands, making a largercontribution to the provincial expenses than we usually do in

consideration of our doing so. But we propose to allot 1/500/000 acres/

or thereabouts, to the half-breed population! who seem to have a kind of

Indian claim to some land." I asked, "How are these 1,500,000 acres tobe given? Will a block of land be set apart, and will not this affect the

Company's claim?" He said, "It cannot affect the Company's claim. The

Company'sbargain with Canadatakes precedenceof any other, and ifwebreak it you wi!! have a claim for indemnity from Canada, which I

suppose.you won't object to." I understood him to say further that there

would not be a block set apart for the halt-breeds, but that each person

whose claim to land was recognisedwould receive an order entitling him

to claim his allotment at any time.

I note the language attributed to Cartier which would suggest that he

understood the difference between the Indians and the Metis in respect of land.

As regards the Indians, he said, \\... we have to provide for the extinction of the

Indian title ...." A s regards the Metis, he said, "But we propose to allot 1,500,000

acres, or thereabouts, to the half-breed population, who seem to have a kind of

Indian claim to some land."

[107] OnMay4, Northcote recordedthe following dial)' entl)':27

I afterwards saw Sir John Macdonald,who showedme the clauses

in the bill which affect the Company's claims. They seem satisfactory. I

asked him how the allotments to the half-breeds were to be made, and

he said that when blocks were set out the Government would make

provision for giving lots to such of the half-breeds as were claimants,

taking care not to put them all together.

[108] On May 2, 1870, when Macdonald was speaking in Parliament on the

2 7 Exhibit 1~0436, page 103



Page: 36

introduction of the Bill for first re~ding, he said:28

..; the object of the residentshad been to obtain possessionof the whole

country: They wished Rupert's Landmade into one Provinc-eand-to have

all the land within the boundary as in other Provinces; ... It was painted -out that it was impossible to hand over the country, to be legislated for

by the present inhabitants. He polnted out that the Territory had been

purchased for a large sum from the HB Co., that settlement had to be

made with' the Indians, the guardianship of whom was involved, that the

land could not be handed over to them, as it was of the greatest

importance to the Dominion to have possession of it, for the Pacific

Railwaymust be built by means of the land through which it had to pass.

Again, no reference is here' made to the MetiS, but to the. Indians.

[109] And on May 9, 1870, Cartier in Parliament said:29

The land question was the most difficult one to decide of any connected

with the measure; it was one of the most important connected with the

welfare of the Territory; itwould soon be necessaryto construct a railway

through Red River and consequently the Doniinion Pariiameht would:

require to control the wild lands. If the lands were left in the hands of

the Local Parliament there might 'be great difficulty in constructing, the

British PacificRailroad ...

[110] The foregoing provides expression of the reasons of Macdonald and

Cartier for Canada retaining ownership of the public lands, and as well, their

intentions respecting the Metis land grant.

[111] It appears that the Red River delegates understood on" April 27 that

Canada would retain ownership of the public lands, as it was only when that fact

was made clear to the Red River delegates that" the idea of the children's land

grant first emerged. The first entry in Ritchot's diary concerning it appears on

April 27, 1870, though in very general terms.

28 Exhibit 1-0467/ page 1319

29 Exhibit 1-0467/ page 1446



Page:37

[112] According to Ritchot's diary, the Red River delegates met at Cartier's

house on April 28. They were given a draft of a printed Bill and began to

examine it. There was no provision in the Bill pertaining to a chi ldren's land

grant. Macdonaldwas indisposed, and the examination was therefore postponed

until April 29. On April 29, Macdonaldwas still indisposed and did not attend.

The delegates discussed the B i l l with Cartier. Their discussion included the

question of a children's land grant, its size and conditions.

[113] The delegates next met Cartier and Macdonald at Cartier's house on

May2 at 10:00 a.m. Ritchot's diary records." -

... Examination and discussion of the draft bill; land question. The

ministers offered 1,200,000 acres of land to be distributed among the

children of the m e n s . We discuss anew the form or manner of

distributing the lands. We continued to claim 1,500,000 acres and we

agreed on the mode of distribution as follows, that is to say: The land

will be chosen throughout the province by each lot and in severaldifferent lots and in various places, if it is judged to be proper by the local

legislature which ought itself to distribute these parcels of lands to heads

of families in proportion to the number of children existing at the time ofthe distribution; that these lands should then be distributed among the

children by their parents or guardians, always under the superyision of

the above mentioned local legislature which could pass laws to ensure

the continuance of these lands in the metisfamilies.

The diary then records " ... that evening Sir John revealed in Parliament the tenor

of the Bill and explained it."

[114] On May 2, 18701 Macdonaldwrote out in his own hand the following:31

That in order to compensate the claims of the half-breed

population, as partly inheriting the Indian rights, there shall be placed at

the disposal of the local Legislatureone million and a half acres of land to

be selected anywhere in the territory of the Provinceof Manitoba, by the

30 Exhibit 1-0005, page 143

31 Exhibit 1-0468



Page: 38

.said Legis lature , in separate or jo int lo ts, having regard to the usages and

customs of the country, out of a ll the lands now not possessed, to bedlstrlbuted as soon as possib le am ongst the diJfer!=nt heads O f half breedfam ilies accord ing to the num ber of children of both sexes then existing

in each fam ily under such legis lative _enactm ents, which m ay be foundadvisable to secure the transm ission and hold ing of 'the said lands

am ongst the half breed fam ilies To extinguish Indian cla im s -~

[1~5] On the evening of May 2, Macdonald made a speech in Parliament in

which he introduced and reviewed the B i l l . While this was taken as first reading,

the Bill was not presented in printed form to Parliament at that time. Concerning

the lands of the province he said:32

.., W ith respect to the lands that are 'lhduded In the Province, the next

clause provides that such of them as do not now belong to indjv iduals,shall be long to the Dom inion of Canada, the same belhg w ith inboundaries already described. There shall, however, out of the lands

there, be a' reservation for the purpose of extinguishing the Indian title ,of 1/200~O OOacres. That land is to be appropriated as a reservation forthe purpose of settlem ent by hE ilf-breeds and the ir ch ildren of 'w hateverorig in on very much the same prlndple as lands were appropriated toU : E . Loyalists for purposes of settlement by - the ir ch ildren. -This

reservation, as I have said, is for the purpose of extinguishing the Irid iantitle and all c la im s upon the lands w ith the lim its of the Province.

And he went on to say:33

,..It is ; perhaps, not known to a majority of th is House that the oldIndian titles are not extinguished over any portion of th is country, exceptfor two m iles on each SIde of the Red R iver and the Assin iboine. Thelands that have been granted by deed or license of occupation by theHudson's Bay Com pany, run from the water or river bank on each side for

two m iles. But from a practice that has arisen from necessity/ and thathas been recognized by the local laws there, in the rear of each of thesefarms or tracts of land held by the farm ers or settle rs/ there is a right ofcutting hay for two m iles imm ediate ly beyond the ir lo ts. That is a wellunderstoodr lcht. It is absolute ly req uired by these people and excites ,in

them equal in terest. The entire extent and value of those rights cannotbe w ell established or fixed -here/ and, it is therefore proposed to invokethe assistance of the Local Legis lature in that respect, and to em power itto provide/ w ith the express sanction of the G gvernor G eneral, for the use

32 Exhibit 1-0467, page 1302

33 Exhibit 1-0467, page 1303



Pag e: 3 9

in common of such lands by those inhabitants who may wish to availthemselvesof it. ...

... [I]t is proposed to invoke the aid and intervention, the experience of

the Local Legislature upon this point, subject to the sanction of the

Governor General. The Government hope and believe that this measureor a measure involving the principle which I just mentioned will be

satisfactory to the peopleof all classesand races in that country.

[116] And Cartier spoke in respect of the Bill and in particular the land grant.

He saldr"

... The land, except 1,200,000 acres, was under the control of the

Government, and these were held for the purpose of extinguishing the

claims of the half-breeds, which it was desirous not to leave unsettled, as

they had been the first settlers, and made the Territory. These landswere not to be dealt with as the Indian reserves, but were to be given to

the heads of families to settle their children. The policy, after settling

these claims, was to give away the land so as to fill up the country.

[117] Cartier was asked whether the Constitution (that is, the Bill) was to be

submitted to the people before being passed. He responded,"NO.,,35

[118] Later in the Parliamentary debate on May 2, having to do with the issue of

the land grant, Macdonaldsaid:36

... [T]he reservation of 1,200,000 acres which it was proposed to place

under the control of the Province,was not for the purpose of buying out

the full blooded Indians and extinguishing their titles.

There were very few such Indians remaining in the province, but such as

there were they would be dlstlnctly under the guardianship of the

Dominion Government. The main representatives of the original tribes

were their descendants,the half-breeds, and the best way of dealing with

them was the same as United Empire loyalists had been dealt with,

namely giving small grants of land for them and their children.

34 Exhibit 1-0467, page 1309

3S Exhibit 1-0467, page 1311




Page:40

[119] There was opposition raised to the Bill in debate and there were

sugge,stions for amendment. Ultimately, Macdonald said that the Bill was, of

course, open to amendment.

[120] On May 3, 1870, there was further debate in Parliament. The Hansard

Debates evidenced strong animosity on the part of some members towards Riel

and his allies, especially due to the insurrection and the murder of Thomas Scott.

Annoyance was expressed and the, suggestion made that this' Bill was the

product solely of negotiations with delegates selected and empowered by Riel.

Macdonald denied this. As' well, he reiterated that the delegates were

representatives of the people of Red River having been elected by a council of

the inhabitants. They were not representatives of Riel.

[121] In his diary, Ritchot records that on May 3, the delegates had discussions

with Cartier as to including Portage la Prairie within the province. The

boundaries of the province in t~e Bill introduced for flrst reading did not include

Portage la Prairie. The deleqates agreed to the inclusion of Portage la Prairie but

wanted the size of the land grant increased.

[122J In the late afternoon, the delegates met with the Governor General. The

Governor General introduced them to Murdoch saying that he had been sent by

the Imperial Crown to help settle the affairs of the North-west with the delegates

if the delegates could not reachan understanding with Canada.



Page:41

[123] As well, on May 3, a teleqrarn" was sent by Young to Granville stating:

Negotiations with Delegates closed satisfactorily - A Province namedManitoba erected....

[124] And by telegram dated May 4, 1870,38 from Ritchot to Thomas Bunn

C'Bunn"), Secretary of State for the Provisional Government, at RedRiver,

Ritchot reported:

Bill erecting Provinceof Manitoba introduced before Parliament. We find

it satisfactory. Other points to be settled. We are confident of amicable

and acceptable arrangements.

[125] An entry dated May5 appears in Ritchot's diary as follows:39

... the Bill appeared very much modified. Several clauses displeased me

fundamentally. I saw our colleagues and some friends. We saw Sir

Georgeand Sir John; we complained to them.

[126] The printed Bill was presented to Parliament by Macdonald for the first

time on the evening of May 4, 1870. There were material changes to it

compared to that which was introduced and received first reading on May 2. In

particular, Portage la Prairiewas now included within the province and the land

grant was increasedfrom 1,200,000 to 1, 400,000 acres.

[127] The Bill introduced on May 4 contained as clause 26 (which became

section 30 of the Act) the general provision that all ungranted or wastelands in

the provincewould be vested in the Crown and administered by Canada.

[128] Clause 28 (which became section 32 of the Act) contained provision

37 Exhibit 1-0472

38 Exhibit 1-0473




Page:42

concerning the quieting of titles for those settlers who had either received titles

from the HBCor had squatted upon land both within and outside the Settlement

Belt.

[129] And as to the children's grant, clause 27 of the Bill (which became

section 31 of the Act) provided as follows:

27. And whereas it is expedient towards the extinguishment of theIndian Title to the lands in the Province, to appropriate a portton of such

ungranted lands to the extent of one millioh four hundred thousand acres

thereof, for the benefit of the families of the half-breed residents, it is

hereby enacted, that under regulations to be from time to time. made bythe Governor General in Council, the Lieutenant Governor shall select

such lots or tracts in such .parts 'O f the Province as he may deem

expedient, to the extent aforesaid, and divide the same among the

children of the half-breed heads of families, residing in the Province at

the time of the said transfer to Canada,and the same shall be granted to

the said children respectively, lnsuch mode and on'suth conditions as to

settlement and otherwise, as the Governor General in Council may from

time to nme deterrhine.

[130] Macdonald's copy of the Bill had a note endorsed upon it immediately

following clause27 which read:

But the appropriation hereinbefore made will be subject to. the

requirement of Canada for the same or any part thereof for Raiiway

purposesor for any publicworks or purposeswhatsoever.

This endorsement did not form part of the Bill, but is consistent With his and

Cartier's comments as they appear to have expressed them to the delegates on

April 27 concerning the lands qeneratlv, as they expressed in Parliament, and as

Cartier appears to have expressedto Northcote.

[131] The Hansard Debates record that on May 4, 1870, Macdonald moved

second reading of the Bill. He then spoke to the increase in the size of the land



P ag e: 4 3

grant and re ferred specifica lly to the provisions conta ined in clauses 26, 27 and

28 of the Bill.

[132] As re ga rd s c la us e 27, h e sa id :40

... Those clauses referred to the land for the half-breeds! and go towardextinguishing the Indian title. If those half-breedswere not pure-blooded

Indians, they were their descendants. There were very few full-blooded

Indians now remaining, and there would not be any pecuniary difficulty in

meeting their claims. Those half-breeds had a strong claim to the lands,

in consequence of their extraction, as well as from being settlers." The

Government therefore proposed for the purpose of settling those claims,

this reserve of l A D O / O D O acres. The clause provided that the landsshould be regulated under Orders in Council by.the Governor General,

acting through the Lieutenant Governor, who should select such lots ortracts in such parts of the Province as he might deem expedient to theextent aforesaid, and divide the same among the children of half-breeds

- heads of families. No.land would be reserved for the benefit of white

speculators, the land being only given for the actual purpose ofsettlement. The conditions had to be made in that Parliament who would

show that care and anxiety for the interest of those tribes which would

prevent that liberal and just appropriation from being abused.

[133] The M ay 5 entry in R itchot's d iary to which I earlier re ferred ...41

... the Bill appeared very much modified. Several clauses displeasedme

fundamentally. I saw our colleagues and some friends. We saw SirGeorqeand Sir John; we complainedto them.

... c on tin ue d as fo llow s:

... They declared that in practice it amounted to the same thing. For us

they promised that they would give us by order in council, before our

departure, assurance of the carrying out of our. verbal understandings;

but that for the present it would be impossible to get the Bill passed ifone changed its form! that they would have a bad enough time to get it

passedjust as it was, that in any casewe had nothing to fear, our verbal

agreementswere known and approved by the ministry who had promisedto give us the order in council for the execution of our understandings.

The two ministers seeingthat we were strongly opposed promised

us, among other things, to authorize by order in council the persons we

would chooseto name ourselvesas soon as might be after the Bill should

40 Exhibit 1-0467, page 1359




Page: 44

be passed- to form a committee charged with choosing and dividing, as

may seem good to them, the 1,400,000 acres of land promised. I

promised for my part to take the matter into consideration and to yield to

their desire, if I could convince myself that I could do it. I saw several

friends afterwards who assured me that that would not only be well, buteven better. Concerning a great number of comments on my part they

said that in all events the Bill as edited was advantageous for us, that it

was necesservto strive to get it passed.

[134] Debate resumed .ln Parliament on May 5. Continued opposltion was

expressed. Ultimately, Macdonal.d said full opportunity would' be allowed for

discussion in Committee. 42 The Bill then received second reading. and was

referred to Committee for dlscusslon the next day. Debate on the Bill did not

continue the next day as Macdonald was sick.

[135] Ritchot records in his diary that on ·May. 6,43 \\[aJfter a more intense

scrutiny of the Bill we went anew to see the rnlnlsters, Sir John and Sir George."

He records .discussion of a portion of clause 28 and that he was given assurance

of the "desired guarantees'! before their departure. As well, he records, "It is

impossible to get the Bill passed, if it is changed ·in this respect." And he

continues:

Seeing that it is impossible to 'obtain what we ask, we contentourselves with remarking that it would' only be in accord' with the

coriditions that we madebetween us, and Whichwe mutually accept, that

. we can take it upon ourselves to get them adopted by our people) that

without that it would be impossibleto see the matter through.

[136] Macdonald was again absent from Parliament on May 7. Nevertheless,

the Bill was referred to Committee and debate ensued, some of it in the nature

42 Exhibit 1-0467, page 1389




Page:45

of strong opposition to the children's grant.

[137] On May 9, debate in Committee continued. In the course of the debate,

Cartier, in response to the remarks of another member threatening to move for

deletlon of clause 27, responded that he hoped the member would not press

suchmotion. Cartier continued;"

... The land question was the most difficult one to decide of any

connected with the measure; it was one of the most important connected

with the welfare of the Territory; it would soon be necessaryto construct

a railway through Red River and consequently the Dominion Parliament

would require to control the wild lands. If the lands were left in the

hands of the Local Parliament there might be great difficulty inconstructing the British Pacific Railroad, although the Dominion

Government held the control of the lands it was only just to give

something in return for them. Thus arose the reserves. Was it not just

and liberal to provide for the settlement of those who had done so much

for the advancement of the Red River country - the Indian half-breeds?

The intention of the Government wasto adopt a most liberal policy with

respect to the settlement of the Territory.

The OPPositionmoved to delete clause 27 from the Bill! but that motion was

defeated.

[138] Ultimately, on May la, after extensive debate and opposition motions for

deletion of many of the clauses in the Bill! the Bill was read a third time and

passed. The Bill went to and passed the Senate and on May 12 received Royal

Assent. By telegram that day4s to Granville, Young reported, "Bill for Govt. of

N.W. passedsanctioning conditions agreed upon with Delegates - [Parliament]

prorogued today."

44 Exhibit 1-0467, page 1446

45 Exhibit 1-0486



Page:46

[139]. On May 18, Ritchot wrote Cartier." In his letter he raised concerns about

three issues, namely, the children's grant, provision as to the quieting of titles in

that part of the province in which Indian title had not yet been extinguished, and

the question of the amnesty for Riel and his followers. He asked that Cartier

secure for them before their departure all the guarantees promised by him and

Macdonald in relation to these questions.

[140] On May 19, Cartier took Ritchot and Alfred Stott to vlslt. the Governor

General. Rltchot records in his diary the nature of the discussion with the

Governor General.47 The discussion as he recorded if pertained to the amnesty

and the quieting of titles, not to the children's grant. There is nothing in his

journal describing that meeting with the Governor General which pertains to the

children's grant nor is there any indication of a direction or authorization from

the Governor General to Cartier to write to Ritchot concerning the children's

grant.

[141] Following that meeting the GovernorGeneral reported to Granville:48

I have this afternoon taken leave of two delegates Father Ritchot and

Mr. Scott and they have both expressed themselves to me as completelysatisfied with the provisions of the Manitoba Act and their belief that it

will be accepted'as a friendly and ,generoussettlement by the people O f

the New Province.

[142] The evidence discloses that to the knowledge of Macdonald'and Cartier,

the Canadian government had been advised by Granville that it would be

46 Exhibit 1-0493


4B Exhibit 1-0494



Page: 47

required to accept the decision of the Imperial Government on disputed paints in

the settlers' bill of rights. Having expressed this condition, however, the Imperial

Government never became so involved. There were no complaints made by

Ritchot or the other delegates, nor advice from Murdoch or Young that Imperial

Government intervention was required. The Imperial Government accepted the

assurance of Young without inquiry.

[143] On May 23, Cartier wrote Ritchot and Alfred Scott49 both with respect to

the fourth paragraph of section 32 of the Ac t and with respect to the amnesty.

[144] The letter, which contained two postscripts, read as follows:

(Translation.) Department of Militia and Defence,

Ottawa, 23rd May, 1870.

Gentlemen - With reference to the representations you have

submitted respecting the fourth paragraph of Section 32 of the Act to

establish and provide for the Government of Manitoba, in which it is

stated that "all persons in peaceable possession of tracts of land at the

time of the transfer to Canada, in those parts of the Province in which theIndian title has not been extlnqulshed, shall have the right of pre-emption

of the same, on such terms and conditions as may be determined by the

Governor in Council, I am in a position to give you the assurance, on the

part of the members of the Government, that so soon as the Government

can grant the necessary titles, no payment shall be required from any of

the persons -mentioned in that paragraph, but that they shall be placed

upon the same footing as the persons mentioned in the three preceding

paragraphs.

I desire to call your attention to the interview you had with His

Excellency the Governor ,General on the 19th instant, at which I waspresent, and in . which His Excellency was pleased to state that the liberal

policy which the Government proposed to follow in relation to the persons

for whom you are interesting yourself is correct, and is that which ought

to be adopted.

I have the honor to be, Gentlemen,

49 Exhib it 1 -0499



P age: 48

Your obedient servant,

(Signed,) Geo. Et. Cartier,

Minister.of Militia and Defence.

_ToMessrs. Ritchot and Scott,

P.S. - Yo~ can at any time make use of this letter, in such

manner as you shall think proper, in any explanation you may have to

give connected with the object for which you were sent as delegates to

the CanadianGovernment.

(Signed,) G. E.C.

I have, moreover, the honor to assure you, as well on my own

behalf as on behalf of my,tollea-gl:lesithat-asto the million four hundredthousand acresof land reserved by the 31st section of the Manitoba Act,

for the beneftt of the families of half-breed residents, the requlatlons tobe established from time to time by the Governor General in Council,

respecting that reserve, will be of a nature to meet the wishes of the half-

breed residents, and to guarantee, in the. most effectual and equitable

manner, the division of that extent of land 'amongst the children of the

heads of families of the half-breeds residing in the Province of Manitoba

at the time when the transfer is to be made to Canada.

I have the honor to be, Gentlemen,

Your obedient servant, . . .

. (Signe~,) Geq.'Et. Cartier,Minister o'f Militia and Defence.

[145] It is not-entirely clear when th~ latter postscript was added to the letter,

but it appears from an entry in Ritchot's diar{ that it was a follow-on to the

letter. His May 2ih diary entry50readsas follows:

May 27 Friday. Interview with Sir George on the subject of the petition

which he approves. He gave me the letter which he [had] promised meand which he had made out in the name of his colleagues and of the

GovernorGeneral.

After [indecipherable]. I hand it back to him to get him to add someguarantees on the subject cif the 31st clause of the Act regarding the

choice and division of lands that were to be distributed to the children.

He promised me to see to it.

soExhibit 1-0005, page 156



Page:49

[1.46] There is nothing in that diary entry which recordswhen it was that Ritchot

received the letter in finished form, that is, with the second postscript as part of

the letter.

[1.47] On June 23, 1.870,the Imperial Government passed an Order in Council

admitting Rupert's Land and the North-western Territory into the union of

Canadaeffective July 151 1870.51

[148] On June 24, 1870, Ritchot, having returned to Red River, appeared and

addressed the Legislative Assembly of Assiniboia.52 The May 23 letter from

Cartier was presented and was read to the Assembly by Bunn. Ultimately, a

motion was made, "That the LegislativeAssembly of this country do now, in the

name of the people, adopt the Manit<;>baAc t , and decide on entering the

Dominion of Canada, on the terms proposed in the Confederation Ac t , " That

motio n was s ec on de d a nd p as se d u na nim ou sly .

[149] On-July6, 1870, Young sent a secret messageto Granville53 reporting that

ArchbishopTache C'Tache'')had sent a letter to Cartier urging the expediency of

granting an amnesty for all offences committed by the Provisional Government

including the trial and execution of Thomas Scott. In that report, Young said, in

part:

It is quite sure that the inhabitants of Ontario - the [east-mags]

are violently opposed to an amnesty, and ill satisfied with many of the

51 Exhibit 1-0509

52 Exhibit 1-0512

53 Exhibit 1-0518



Page: S O

provisions of the Manitoba Bill which they denounce as a surrender to the

French Priest Party.

I hope Her Majesty's Government will be willing to decide the

question and take the responsibility of deciding it upon themselves, for Ido not think that the Canadian Government is strong enough to do so.

The mere discussion of the question in Canada rouses up all the dormant

jealousies end enlmoslnes between the French speaking and the English

speaking portions of the populations. The English speaking Roman

Catnollcs seem so far as I can learn to be arrayed aqalnst the French

'speaking Roman Catholics. It is a division ofraces rather Ulan of religion.

[150] And on July 16, 1870, Bishop Machray, the Anglican bishop of Rupert's

Land, wrote the Governor General54 a follow-up letter to his earlier letter of

March_17 expressing his views upon the troubles at the Settlement. In his letter- . ' .

he expressed concern for the "extraordinary delay in the advance of the troops"I •• •

. ,

which he said was creating a very dangerous condition of things in the, ,

Settlement. He asserted that a considerable majority of the people, including, '

almostall of int~lIigence and substance, are against the ProvisionalGovernment.,. 'f·"

He talked about the animosity between the French and the English. And he also

alluded to the children's grant as follows:'

Then the grant of 1,400,000 acres to the half breed part of the

community is a most dangerous provision - This will have to be ~Isely -most Wisely administered. If not I am sure that before many years there

will be a revolution upsetting the whole arrangement. A far better course

for the half-breeds - a regard for whom I consider most right - would

have been to have enacted a free grant of 200 acres for any new settler

but say 300 for a half-breed - Any attempt to limit a special tract pf

country to a special class of the people and religion - leading to land not

being improved and occupied - is greatly to be deprecated in the

general interests of the community and of the religious body Itself - for I

am sure [such] an arrangement will not in the end .be suffered to stand

and it will create endless agitation and annoyance.

S4 Exhibit 1-0519



Page:51

[151] On April 17, 1871, a joint address from the CanadianParliament was sent

to England and on June 2911871, The British North America Act, 1871

(U.K.), 34-35 Vict., c. 28, was finally assentedto by the Imperial Parliament.

(2) FactsMaterial to Implementation of the Section 31 Grants

[152] On July 30, 1870, Archibald was appointed Lieutenant Governor of

Manitoba. On August 2, 1870, he was appointed "Administrator on behalf of the

Government of Canadaof the ungranted or wastelands in that Provincevested in

the Crown".

[153] By separate instrument dated July 30, 1870, he also was appointed"

Lieutenant Governor of the North-West Territories.

[154] Archibald received instructions from the Under Secretary of State for the

Provinces on August 4, 1870,55 relative to his appointments as Lieutenant

Governorof, and asAdministrator of the ungranted or wastelands in, Manitoba.

[155] The work to be done by Archibald pursuant to these instructions was

extensive. Amongst other things! he was to form a government on an interim

basiswhich included selecting and apPOintingmembers of his ExecutiveCouncil,

selecting heads ofdepartmeots of the government, and appointing the members

of the Legislative Council. He was to organize electoral divisions, both

provincially and federally. He was to undertake a census. He was to provide

55"Exhibit 1-0553, pages 4 to 7



Page:52

reports to the Federal Government as to the state of the laws and the system of

taxatlon then extsting in the province, and as to the state of the Iridian tribes,

their numbers, wants and claims, along with any swggestionshe might havewith

reference to their protection and to improvement of their condition. He was to

report generally on all aspectsof the welfare of the province.

[156] Aside from the foregoing, he also receivedextensive instructions as to.the

undertakings which he should fulfill as Lieutenant Governor of the North-West

Territories.

[157] Archibald arrived in Fort Garry September 2, 1870. He reported from time

to time to the Secretary of State ror the Provincesas to the community activities

at Fort Garry and within the province. Clearly he was very busy. An example is

his report of September 17, 1870. He wrote:56

I have been obliged to write in great haste. In the primitive condition of

affairs here, the most trivial matter must be brought to the notice of theGovernor, and from morning to night I have not a moment to myself, and

In this case I have been obliged to begin this letter after the hour named

for the close of the mail, keeping it open until ,I shall have completed it.

[158] The census was completed and reportedupon by December 9, 1870.57

The census reported just under 12,000 persons in the prov:ince, consisting of

1/600 white Europeans, approximately 560 Indians, approximately 5,700.French

half-breeds, and just over 4,000 EngJlishhalf-breeds. As wel,l, the census

recorded that there were approximately 6,000 half-breeds (both French and

5 6 Exhibit 1-0553, page 16

57 Exhibit 1-0541



Page:53

English) 20 years of age or under/ plus 1,615 between the ages of 20 and 30.

[159] Archibald was instructed to provide his opinion, which he did December

20, 1870,58 as to the regulations which should be made respecting subsection

32(5) of the Act for ascertaining/ adjusting and commuting by land grants from

the Crown the rights of common and of cutting hay enjoyed by the settlers.

[160] His letter of December 20, 1870, related generally to landholdings as they

existed within the province at July 15, 1870, and his expression of views to the

Federal Government concerning that land on a go~forward basis. He took issue

with Dennis's scheme for the surveys in the North-West. Archibald

recommended the scheme of survey as it then existed in the United States,

which he asserted was a system known all over the world to the emigrant

classes. That system of survey he describedwas the system of 6 miles square,

subdivided into 36 square miles, each of those again subdivided into 4 square

lots of 160 acres each.

[161] In addition, he was instructed to report his opinion to the Under Secretary

of State for the Provinces for the information of the Governor General,which he

did December 27, 1870,59 as to the regulations which should be made by the

Governor General in Coundl under section 31 of the Act "for the selection of

lands to the extent therein mentioned, from among the ungranted lands in the

58 Exhibit 1-0546

59 Exhibit 1-0548, a duplicate at Exhibit 1-0547



Page: 54

Province of Manitoba, and their division among the children of the half-breed

heads of families residing in that Province at the time of transfer of the same to

Canada, together with the mode and conditions, as to settlement or otherwise,

which you may consider desirable to embody in such regulations."" . \

[162] Archibald recommended that the section 31 lands should be subject to

survey conducted under the general system (i.e., the system which he had

recommended).

[163] Aswell, withrespect to section 31 of the Act, hewrote as follows:.

.The title recognized as Indian, is the title of.the nativeswho have madeany particular portion of the Country their home. Each tribe is divided

into farnltles, and each family considers as its .own, in a certain .sense.of

exclusiveness,though not in the absolute sense we attach to ownership,

the particular parts of the Country, where the family lives, and hunts, and

roams.

Now, as regards th e Province of Manitoba, that was originally in the

possession of some tribes of Crees, till shortly before the arrival of theEnglish settlers, when they either 'abandoned their homes in search of a

more Western Country or were driven out by the Saulteaux, who pressed

upon them from the East, and whose original home is the Country lying

between this and Lake Superior. Some few Crees remained, some

Indians, assuming to be Cree Chiefs uniting with others assuming to be

Saulteaux Chiefs, concurred in the deed to the Earl of Selkirk.referred toin a previousdespatch.

The Indian rights, whatever they may be, belong to families of these two

tribes. But many of the Half-breed inhabitants, of Red River are not

descendedfrom any family or tribe'of either Creesor Saulteaux.

The Half-breed population of this Province is largely from beyond the

Province. White men, who have lived in the most remote parts of this

Continent, and have 'formed' connexions with Indian Women of the

interior, as they advance in years remove to Red River, and there is not

probably a tribe of natives between this and the Rocky Mountains, 0 1 '

between this and the North Pole, or between this and the Coast of

Hudson'sBay or Labrador, which is not to someextent represented in the

Half-breeds of RedRiver.



Page:55

The words therefore, "towards the extinguishment of the Indian Title in

these lands" if they were really meant to apply to those who could have

any claim, as descendants of the tribes who occupied the Lands of

Manitoba, would exclude all Half-breedswhose Indian Ancestors were not

of certain Tribes and Families; but I presume the intention was not somuch to create the extinguishment of any hereditary claims (as the

language of the Act would seem to imply) as to confer a boon upon the

mixed race inhabiting this Province, and generally known as Half-breeds.

If so, any person with a mixture of Indian blood in his veins no matter

how derived, if resident in the Provinceat the time of the transfer would

comewithin the classof personsfor whom the boonwas intended.

He thus recommended that each half-breed should be included in the section 31

grant.

[164] Archibald instructed Molyneux St. John C'St. John") to make inquiry and

report upon the landholdings within the new province, both from a recent

historical perspective and for the future pursuant to the provisions of the Act

including section 31. St. John reported to Archibald on January 3, 1871.60 In

that report he noted the divergence of desires as to the location of the

section 31 land. He wrote:

With reference to the distribution of the land set apart by the 31st clause

of the ManitobaAct I should inform your Honour that there is a difference

of opinion both as to the way in which the land could be most desirably

located, and the manner in which its possession should be regulated.

Some persons desire to take their share in the neighbourhood of the

lands now occupied by themselves; others would prefer to receive it in

parts remote from their present holdings with the view of obtaining hay

and better grazing country.

[165] st. John then expressed his views concerning the location of the grant,

the possibleuse of scrip and other related issues.

60 Exhibit 1-0557



Page: 56

[166] Having receivedArchibald's recommendations, the Federal Cabinet in early

1871 began to establish its policy with respect to the land in Manitoba and the

provisions of the Act.

.[167] Order in Council March 1, 1871, was issued. It was the subject of debate

in the House of Commons on April 6, 1871. During that debater McDougall

stated that the 1,400,000-acre grant should not be divided amongst all half-

breed residents but rather should be limited to the children of the half-breed

residents. He was ignored. Order in Council March 1, 1871, was amended

(although not concerning matters respecting section 31 of the Act) and,was

replaced by Order in Council April 25, 1871.61 The acceptance of Archibald's

recommendation as to who was entitled to share in the section 31 grant and the

rejection of McDougall's pos'tlon would result in a delay in the implementation

process.

[168] Order in Council April 25, 1871, adopted the general system of survey

proposed b y Archibald and established the mode for dealing with the section 31

grant. .

[169] it provided that townships containing 1,400,000 acres would be reserved

and divided among all half-breed residents and their children. The number of

acres to which each person would be entitled would be based upon the census.

61 Exhibit 1-0608



Page: 57

As the census completed December 9, 1870, recorded approximately 10/000

Metis residents in the province/ eachwould be entitled to 140 acres.

[170] The Order in Council provided that the Lieutenant Governor would

designate the townships or parts of townships in which the allotments to the

half-breeds would be made and described the mode of allotment, namely,

distribution by way of random lottery. It also provided that there would not be

any conditions of settlement imposed with respect to the half-breed grant/ and

there would be no restrictions as to the grantee's power of dealing with their

lands when granted, other than those which the laws of Manitoba might

prescribe.

[171] The new province, of course/ did not exist in a vacuum. Neither did time

nor life stand still. In the spring of 1871, new immigrants began to arrive in

Manitoba and take up land. But those entitled under sections 31 and 32 had

received nothing concrete under the Act. This caused anxiety and unrest

amongst the old residents, including the Metis.

[172] Six members of the LegislativeAssembly of Manitoba wrote Archibald on

May 24, 1871,62 requesting assuranceon behalf of the old inhabitants concerning

the rights of common and the rights of cutting hay whiC;hthey had enjoyed, and

on behalf of the half-breed population concerning the possession of the lands

guaranteed to them under the Act.

62 Exhibit 1-0620



Page: 58

[173] On May 26, 1871, the Federal Government passed an Order in Council/3

which allowed new immigrant settlers to take advantage of the homestead and

preemption provisions contained in Order in Council April 25, 1871, even though

the public survey was not completed. The passageof this Order in Council and

the continuing arrival of immigrants increased the level of concern.

[174] On June 9, 1871, Archibald wrote a letter64 responding to the May 24

letter set forth 'above. Both letters were published in the local newspaper. In his

response, Archibald made reference to Order in Council April 251 1871, and

continued as fallows: '

B y these rules, I perceive that It will be left to the Lieutenant Governor of

this Province to deslqnate the townships, or parts of townships, in which

the allotments to the Half-breeds shall be made.

Should Ibe called upon to act under, this rule, Ishall consider that thefairest. mode, of proceeding ,will be to adopt, as far as POSSible, the

selections made by the Half-breeds themselves.

Wher~ver, therefore, 'any Parish of Half-breeds, or a n y body of

Half-breeds, shall have made choice of a particular locality and shall have

publidy notified th@same in such manner as to give notorietY to the fact

of their having made such a selection and having defined the limits

thereof, so as to prevent settlers 'entering' upon the tract in ignorance ofthe previous selection, Ishall if the duty should fall to me of acting under

the rule laid down by the Governor General, be guided by the prinCiple I

have mentioned, and confirm the selections so made, so far as this can

be done without doing violence to the township or sectional series.

. ,

When Archibald wrote this letter, he was not aware of the passage of Orderin

Council May 26, 1871.

&3 Exhibit 1-0622

64 Exhibit 1-0620



Page: 59

[175] OnJune 17, 1871, Archibaldwrote JosephHowe, the Secretary of State/55

as to his published letter of June 9, 1871. In his letter, he advised Howe of the

uneasinesswithin the province concerning the half-breed grant resulting from

the arrival of immigrants who were beginning to take up land as they arrived.

He described very generally the results of this unease and in reference to his

June 9, 1871 response,said:

I should have hesitated about replying if the situation had allowed me

any choice, but I felt bound to give some answer, at the risk even of not

being sustained by His Excellency the Governor General.

He sent Howe a copy of both the May 24 and June 9 letters.

[176] Both before and after Archibald'sJune 9, 1871, letter, meetings were held

at the parish levels and publications appeared in the local newspapers describing

by metes and bounds those lands from which the Metis felt the section 31 land

grant should be allotted.

[177] Howe did not respond to Archibald's letter of June 17, 1871, until

November 4/ 1871.66 He then expressed regret about Archibald's June 9, 1871/

letter and suggested that, with respect to land issues in the province, Archibald

advise the citizens that he had nothing to do in the matter. He suggested that

Archibald "leave the Land Department and the Dominion Government to carry

out their policywithout volunteering any interference".

65 Exhibit 1-0633

66 Exhibit 1-0658



Page:60

[178] Gilbert McMicken ("McMicken") was appointed Dominion Lands Agent in

Manitoba in thefall of 1871. Hewrote Macdonald on November 12, 1871.67 He

told Macdonald the half-breed claims could be, acceptably resolved and

undertook to provide a plan for so doing.

[179] In his annual report as Immigration Agent dated December 30[ 1871,

McMickenwrote:68

It does not come within the scope of my duty here to deal with the

question of the Half-breeds grant, but I may be allowed to say that very

erroneous impressions have been created in regard to it, and thecircumstances surrounding it. Wh,atever the precise method of

distribution the Government has determined, or may determine upon, in

reference to it, the selection asmade in behalf of the Half-breedswas not

"per' Se" .o n the ground of the better quality of the land, but .rnore

especially in view (as regards the FrenchHalf-breeds more partiCularly) ofkeeping them intact as a community, in contiguity to their old

settlements, and with a view to assuring and maintaining their religious

and political interests and privileges....

[180] The plan to which McMickenreferred in his November 12[ 1871[ letter was

set out in a memorandum of January 5, 1872. 69 It proposed an issue of

transferable scrip redeemable in Dominion Lands reserved for- the purposes of

the grant. His proposalwas poorly recelved Ibcally and led to increased agitation

in Manitoba.

[181] Tache wrote Macdonald on January 23[ 1872/° concerning McMicken's

proposal. In his letter, he wrote in part the following:

The half-breeds have been promised the selection and distribution of

their lands in such a way as to please them and they expect fairness on

67 Exhibit 1-0660

68 Exhibit 1-0664

69 Exhibit 1-0670

70 Exhibit 1-0680



Page: 61

that point. The scheme, proposed by Mr. McMicken,is entirely opposed

to their wishes and interests, so much so that, if adopted by the

Government, they will feel frustrated in their expectations, deceived by

the Government and a feeling of uneasiness would prevail to a large

extent

The order in Council of the 25th of April last states that: "The Lieutenant

Governor of Manitoba shall designate the Townships or parts of

townships in which the allotment of the half-breeds shall be made." This

official document in hand and in face of the prevailing uneasiness and

excitement, Governor Archibald thought proper to make the selection in

order to please the half-breeds. Iam entirely satisfied that he acted

wisely and in the interest of the Canadian Government as well the

Provinceof Manitoba and no doubt he and we would feel very much theadoption of a scheme which would be considered as an entire

condemnation of his policy.

I hope that the order in Council of the 25th April last, will be maintainedand that the Lieutenant Governor will not be embarrassed with new

regulations! which would involve the condemnation of his first action,along with the danger of bringing new elements of discord to this

country.

[182] On February 8, 1872, the LegislativeCouncil and Assembly of Manitoba by

joint address to the Governor General of canaca" expressed concern that with

the delay in the making of the grants, the public lands, from which the grant

would come, would not be in the same or in as good condition when the grants

were made as they were at the time that the grant came into existence. This

was because new settlers were being allowed to take up land and also were

removing timber from land for purposes of their homes, etc. The address also

requested that Canadahonour the selection of reserveswhich had beenmade by

the Half-Breed population. The joint address recorded that they "respectfully

submit that the reserves in block taken by the Half-Breed population are in

71 Exhibit1-0687



Page: 62

accordancewith the letter and spirit of an official document signed at Ottawa on

the 23rdof May, 1870" and "that these reserves' s o made have received the

unqualified approbation of the high functional)' to whom was directed the charge

of this matter by Order 'h i Coundl April 25, i~71, .and that the result of these

, '

reserves being so laid off has been to avoid agitation which is always hurtful to a

young province and that theconfumatlon of these reserves will give the greatest

satisfaction."

[183] In addition, the joint, address expressedthe Legislative Assembly'swish:

That this grant constitutes an absolute right of property in favour of the

recipients, a n d that the considerations for which the grant was given

entitled the recipients to the rights assured'by common law to the owners

of individual property.

Arid further:

We, the' Legislative Council arid Legislative Assembly of Manitoba1with

the view of effiCiently protecting the rights of Half-Breed minors,

respectfully approach Your Excellency to, requestthat the privilege' begiven to them by the Dominion Government of naming administrators or

quardtans to take charge of. the administration of the land reserved _and

set apart for the Half-Breed minors, and to declare that the lands coming'

to the Half-Breed by virtue of this reserve be considered as assigned

rights in the first degree ....

[184] The Federal Government did' not reply to that joint address for almost a

year until January 27, 1873.72 In its reply, Canada told Manitoba that the

Governor in Council, by regulations to be made from time to time, had tHe sale

-' ,

power to regulate the distribution of the grant to the half-breeds individually and

the issueof patents therefor.

72 Exhibit 1-0802



Page: 63

[185] Following the February 8, 1872, joint address, McMicken and Dennis, by

letters dated February 24, 1872,73and March 22, 1872/4 respectively, urged the

Secretary of State to proceedwith the selection of lands for the half-breed grant.

McMickendescribed as most urgent the final disposal and apportionment of the

1,400,000 acres granted to the half-breeds by the Act and suggested:

... that the distribution be made generally from the Localities indicated as

the selection on the part of the Half-breeds - reserving such portions as

shall be necessary to makeup the portion to which the Hudson's Bay

Company have a claim in each Township and also the portions to be set

apart for SchoolLands reservations.

[186] As well, he wrote: "The rights of all those who have taken up Lands for

settlement within the localities referred to, under the privilege granted by the

existing regulations should be respected" and that "They should be granted the

privilege (which under the present regulations they have not now) of selling their

claims and improvements and taking up either Homestead or Preemption claims

in other directions as they may select. The option remaining entirely with

themselves.If

[187] .Dennis, in his letter, concurred in those comments of McMicken and

advised that the surveys were sufficiently far advancedto permit this occurring.

[188} This led to a report dated March 27, 1872, from J . e . Aikins ('Aikins'')!

Secretary of State for the Provinces,to the GovernorGeneral75 and as a result to

73 Exhibit 1-0690

74 Exhibit 1-0695

75 Exhibit 1-0696



Page: 64

passage of Order in Council April 15, 1872.76

[189] That Order in Council recited that the surveys in Manitoba were

sufficiently far advanced to enable a selection of the 1,400,000 acres to which,

by the Act, the half-breeds were entitled and that the Lieutenant Governor of

Manitoba be instructed to make selections of townships in such number as is

necessary to make up 1,400,008 acres, reserving in all cases from every

township so selected sections for the HBC lands and the lands which may be

required for school purposes, The Order in Council also provided that:

... care be taken ... that only a due proportion of the woodlands of the

Province be included in the 1,400;000 acres of land to be granted to the·Half-breeds; the remainder of these woodlands being made available forsettlers. .

[190] By telegram dated July 17, 1872, Aikins instructed Archibald to make the

selection of the half-breed lands Without delay. Archibald proceeded to do so

and reported to Aikins on July 27, 1.872.77 He wrote that it would .requlre

selection of about 39 townships for the French Metis and about 29 townships for

the English half-breeds. He reported that it would be easy in a general way to

select a number of townships sufficient to cover the half-breed claims and

"situate in localities likely to present a fair average", but it "would have been

unsafe to make an absolute selection Without more accurate information than

could be procured without inquiry involving some delay".

76 Exhibit 1-0701

77 Exhibit 1-0727



Page:65

[191] He, therefore, said that a solution would be to simply withdraw from the

market a sufficient number of townships' that were likely to be selected before

makingan absolute selection.

[192] On August 12, 1872, Archibald wrote Aikins78 attaching and reporting

upon a petition from the residents of High Bluff and -PoplarPoint "on the subject

of t.he land to be allotted to them as their share of the half-breed lands...." He

wrote:

I have been governed in my approximate selection, by a desire, as

indicated in that letter, to meet the views of the half-breeds, as far as I

can, conformably to the governing idea of making the selection a fair

average of Townships, containing no more than a reasonable proportion

of wood, etc. '

Such a selection is of course much easier to make in Townships, or large

blocks, than jf in sections or smaller divisions.

A s regards the Townships asked for by the inhabitants, there are several

exceptional circumstances, which would have to be taken into

consideration even if they were at the disposal of the Crown.

[193] He then painted out that some of the land requested by the half-breeds

was located in a narrow belt between the Assiniboine River and the shores of

Lake Manitoba, which would give that land a value far beyond its worth as

ordinary farm lots. He pointed out that the pending location of the railway would

also add further to the value of the land and in addition a large portion of the

land being requested had already been taken up under order in council as

homesteads for settlement or by purchases, and rights therefore had been

acquired to the land which could not be set aside. He wrote:

78 Exhibit 1-0730



Page: 66

In the interests of the public, it is better that the lands there situate

should be in the hands of purchasers and settlers, and so be open to the

. qenera l. market, rather than that they should be assigned to Half-breeds,

many of whom, being underage, would be incapable of conveying, and

thus form as a seriousobstruction to the development of one of the mostvaluable spots in the Province.

[194] He reported, therefore" that he had suggested other land in lieu of some

of the land being sought by the halt-breeds,

[195] On August 26, i872, Archibald wrote Aikins79 reporting as to the particular

townships which had been preliminarily selected for the half-breeds. He wrote,

in part:

You will quite .understand that I have ,not, in their selection, committed

myself to the final choice of any particular Townships, The Half-breeds

have been made to understand that the only effect of the selection is to

have the Townships withdrawn from the market, pending the inquiries

required to determine as to their absolute selection, with' the

understanding that these inquiries should be conducted with as little

delay as possible. ..

[196] In the fall. of 1872/ Morris replaced Archlbald as the new Lieutenant

'-Governor of Manitoba. On November 16, 1872i8o Morris asked Macdonald for

authority to announce that a plan for allotment had been adopted and would

begin immediately.

[197]' On November 20, 1872,81 Morris wrote the Secretary of State for the

Provinces, reporting that the half-breed reserves had now been selectedby the

Lieutenant Governor and that a plan for the allotment of these lands to the

79 Exhibit 1-0733

B O Exhibit 1-0750

81 Exhibit 1-0751



Page:67

individuals entitled to them had been completed. He, therefore, requested

authority to begin allotment.

[198] Morris then received a letter dated December6, 1872,82 from Aikins

informing him that the Surveyor General would leave for Manitoba to assist with

the allotment "o n the basis of the Order in Council of April 25, ~871ff. He

instructedMorrls as follows:

Previous however to such being done, it would be necessary for you to

confirm the selection of townships to meet the 1,400,000 acres reportedby the late Lieutenant Governor in his dispatch number 10 of 26 August

last ....

[199] Morris proceeded to finalize selection' of the townships and on

February22, 1873, began allotment, drawing lots for the individual grants of 140

acres.

[20.0] Two complications then arose:

(1) The issue raised by McDougall in Parliament in March 1871

resurfaced, that is: Was the grant to be for all half-breed residents

or for the half-breed children only?

(2) The hay privilege issue. When the land pollctes were formulated,

the government considered this a minor issue. However, it took on

greater import upon completion of the river lot surveys and the

start of the section 31 allotments. The river lot surveys did not

82 Exhibit 1~0755



Page:68

include the outer two miles for the inner parishes (where the hay

privilege had been enjoyed) and many old settlers; both Metis and

non-Metls, became concerned about possible loss of their interest

in the outer two miles by reason of the proposed section 31

allotments.

[201] On March 12, 1873, Robert Cunningham ("Cunningham''), MP for

Marquette, asked the PrimeMinister in Parliament whether the heads of families

were gofng to be included in the grant. Macdonaldsaid that they were.

[202] On March 24/ 1873, Cunninghamagain raised the matter; arid Macdonald

said that the qovernmeht had come to the 'Conclusionthat only the children of

half-breed heads of families were entitled to participate in the grant. By Order in

Council April 3, 1873,83the government confirmed this position. The deletion of

heads of families from the children's grant created problems and delay.

[203] Whereas there were approximately 10,000 half-breeds within the province

according to the 1870 census, resulting in.the size of the grant being 140 acres, ,

per recipient, the removal of the heads of families reduced the number of eligible

recipients to approximately 7,000. Accordingly, the size of the qrant would now

become 190 acres to the children only. As a result, Whatever 140-acre

allotments had been made by that date were cancelled. A second allotment of

190-acre grants began in August 1873.

83 Exhibit 1-0859



Page: 69

[204] The resolution of the hay privilege issue also took time and resulted in

delay.

[205] In the summer of 1873, the government decided to remove the outer two

miles from those townships selected by Archibald and Morris for the section 31

grant. Morris sought advice as to adjustments that would then have to be made

to account for this removal.

[206] On August 18, 1873, Lindsay Russell,Assistant Surveyor General, wrote

Morris84advising as to the additional amount of lands required to satisfy the half-

breed land grant by reason of the withdrawal of the outer two, miles from the

section 31 land as had been selected and, as well, suggesting the townships or

parts of townships to be usedto meet that requirement.

[207] Order in Council September 6, 1873,85was passed, which withdrew the

outer two miles from the land set apart for the half-breed grant and provided

that the deficiency would be made up by taking a corresponding amount of land

from unclaimed lands at the rear of the allotment. This had the effect of

cancelling the earlier selection of those lands that were located within the outer

two miles.

[208] Speculators and others 'acquired the interests of some Metis children in

the land grant. This is evident from advertisements in the local newspapers of

84 Exhibit 1-0899

85 Exhibit 1-0904



Page: 70

the time, from statements made before the Commission to Investigate the

Administration of Justice in the Provinceof Manitoba relating to half-breed lands

(the "Land Grants' Inquiry') in November 1881, from the speech made by

Macdonald,to the House of Commons in July 188586 referring both to land and

scrip, when he said:

The claims of the half-breeds in Manitoba were bought up by speculators.

It was an unfortunate thing for those poor people: but it is true that this

grant of scrip and land to those poor people was a curse and not a

blessing. The scrip was bought up; the 'landswere bought up by white,speculators and the consequencesare apparent.

and otherwise.

[209] These people knew various ways in which to acquire the grantees'

interests, which the evidence shows included the use of assignments, of powers

of attorney, of penalties, of mortgages attached to the land of t h e patent of the

grantee to become operative in the event of default by the grantee, and of

others. There Js no question that by 1873, many sales of the interests in section. . "

31 land were occurring. While some of the sales were sales by heads of families

who were wrongly given the ability to participate in the grant by Order in Council

April 25, 1871, the salesalso includedsales by children.

[210] During this time, the Manitoba Legislature began to consider legislation

designed to ensure that people entitled to section 31 grants would not be taken

86 Exhib it 1 -1 678



Page: 71

advantage of by speculators or others seeking to purchase their interest. On

March3, 1873, it passedThe Half-breed Land Grant Protection Act.s7

[211] The preamble to that Act acknowledged the evidence then extant that

speculators were buying the grantees' interests in their [and grant. It recited in

part that:

,.. very many persons entitled to participate in the said grant in evident

ignorance of the value of their individual shares have agreed severally tosell their right to the same to speculators, receiving therefore only a

trifling consideration;

And whereas it is expedient to discourage the traffic now going on insuch rights, by protecting the interests of the persons entitled to share asaforesaid, until the Patent issue:...

[212] The effect of the Act was that no promiseor agreement made by any half-

breed prior to the issue of the patent to sell his or her interest in the grant,

would be enforceable against such half-breed and no damages would be

recoverable against him or her by reason of the refusal to carry out such promise

or agreement. The.Act also provided that for any such transaction which may

have taken place prior to the passing of the Act, any consideration in money or

in goods received by the half-breed, was declared to be a debt owed by the half-

breed to the speculator who after the issue of patent might sue for recovery.

Such debt together with interest at 7 percent would form a first lien on the land

and could be sold at public auction at the end of one year from the date of issue

of the patent in satisfaction of the obligation.

87 Exh ib it 1 -0843



Page: 72

[213] Morris reserved his assent to the Act. On March 17, 1873, he wrote Howe

explaining.that he had reservedassent to the Act, because of certain concernsas

to the legislation saying that the law was novel and retroactive in its character

and he felt "compelled to reserve it for the signification of the pleasure of the

GovernorGeneral".

[214] At that time, the Metis constituted the largest ethnic group in the

Legislature. Someof the Metis members themselves considered this Act to be an

insultto people of Metis ancestry. They felt the Metis pearl: were in all ways

capable of looking after their own interests.

[215] On February 21, 187488, A.A. Dorion, Miriister of Justice, recommended

that the Act be given royal assent. One of his reasons fbr this recommendation

was, as he said:

The undersigned is, however, of opinion that, having reference to the

circumstances under which the appropriation of Dominion lands was

made for Half-breeds and that it is recited in the b i l l that very manypersons entitled to partiCipatein the grant had agreed to sell their right,

Whilst, at the same time, they were in perfect ignorantewhat that right

or its value eventually might be, the Act would be beneficial in protecting

their interests.

Ultimately, the- Governor General gave royal assent to the Act and it was

proclalrnedtn February 1874.

. ,

[216] Accordingly, starting in 1874 following the assent of the GovernorGeneral

to the Act, Metis vendors for the next three yearswere not bound by agreements

88 Exhibit 1-0955



Page:73

to sell their interests in land made before the patents to the land issued. And,

no patents were issuedduring that time.

[217] Morris began the second allotment on August 16, 1873. At that time,

there was an open question in Manitoba whether binding sales of allotments

before patent could be made. This was so because the Act, while passed on

March 3, 1873, was stil! under reserve by the Lieutenant Governor awaiting the

pleasureof the GovernorGeneral.

[218] A s well, as the second allotment began, there arose a discussion and a

disagreement between Dennisand Morris.

[219] Dennis raised a question as to the validation of section 31 claimants. He

wrote a memorandum dated September30, 1873,89reporting that the allotment

had already been effected for several of the parishes in the province and

recommended that some machinery be put in place to permit investigation to

ensure that a person wishing to receive a patent as an entitled allottee was in

fact so entitled.

[220] A Commission headed by John Bain and Joseph Dubuc (the Bain and

Dubuc Commission) had been created to deal with the settlement of claims

respecting rights of common and of cutting hay. Dennis suggested that the Bain

and Dubuc Commission might be charged with this additional responsibility.

89 Exhibit 1-0910



Page: 74

That Commission would be required to visit the different parishes to take

evidence in respect of the one task and ceuldeasuv arrange special sittings at

such times to receive applications and take evidence respecting the other.

Ultimately, salnand Dubuc refused to undertake this additional work.

[221] By telegram December 11, 1873, Dennis asked Morris whether it would be

necessary to investigate the claims of halt-breeds to land allotted or whether he

considered the census returns sufficiently reliable to issue the patents. Morris

responded o~ December 12, 1873.90 Morris said that to validate claims of the

half-breeds would involve great delay. He suggested instead that it would be

better to advertise the list of claimants (grantees) and the lands allotted to them,

giving the allotments the same effect as description for patent, subject to proof

of identity. He suggested that proof of identity and the 'claimants' right to the

land should be established when the' Claimant piCked .up

the patent Morris

asserted that his suggested plan would satisfy the concern as to entitlement: of

an individual claimant and' would remove the burden of delay 'from the

authorities to the claimant.

[222] Dennis prepared a memorandum dated December 17, 1873,91 in which he

reported upon Morris'S plan to publish the recipient's name a'iong With the land

90 Both telegrams are contained in Exhibit 1-0930

91 Exhibit 1-0936



Page:75

allotted, but disagreed with Morris's plan. Morris wrote directly to the Minister

on February11, 1874,92persisting with his suggested plan.

[223] On February 28, 1874, Donald Codd C'Codd''), Acting Agent of Dominion

Lands,wrote Dennis93 supporting Morris's position.

[224] Allotments began but problems arose in St. Laurent and st. Boniface

where allotments had to be redone becauseof surveying errors.

[225] Macdonald'sgovernment fell in November 1873. In 1874, Sir Alexander

MackenzieC'Mackenzie'')becamePrime Minister of the new Liberal government.

1874wore onwithout apparent progresson the allotments.

[226] It was not until February 1875 that the new Minister of the Interior was

asked in parliament when the allotment might be made. Amongst other things,

David Laird C'Laird''), Lieutenant Governor of the North-West Territories,

responded that it would be necessary for claims to be validated by

commissionersreceiving evidenceas to eligibility.

[227] In February and early March 1875 with nothing having happened,

petitions were prepared by various parishesin Manitoba and sent to government

ministers for the attention of the Governor General or to the Governor Genera!

directly, addressing various [and issues under the Act. The petitions94 were

92 Exhibit 1-0953

93 Exhibit 1-0959

94 Exhibits 1-1034, 1-1039, 1-1040, 1-1041 and 1-1043



P ag e: 76

virtually identical in language and addressed most of the land issues under the

Act. In particular, as regards the section 31 grant, complaint was made that

nearly five years had elapsed since the passageof the Act and not one grantee

was yet "in possession of one acre of said lands or deriving any benefit

therefrom". The petitions stated in part:

3. That 1,400,000 acres of lands in the' Province having been set

apart as Haff-breed Reservesand so continuing to be set apart, and not

being in the hands bf the Half-breeds either to cultivate or to dispose of is

having a very damaging effect upon the prosperity of the Province ...

As well, the petitions painted out the loss in value to the land in that intervening

period and asked 'that inquiry be made into the matters complained of with a

view to their early settlement.

[228] Finally, the dtsaqreement between Dennis, Morris and Codd. was dealt

with by the passage at-Order in Council April 26, 1875/5 which provided for the

manner' in whiCh the allotment and grant of the section 31 lands would go

forward. This W O U l d , however, be revisited in 1877., The' Order in Council

provided for the publication of the names of allottees but not for the publication

Of their allotments (contrary to Morris and Codd's proposal) and assigned to a

commission the task of taking applications for patents from allottees. It also

provided that upon the lists being duly published and distributed for each parish,

a commissioner should visit the several parishes successivelyafter having given

notice of his intended vlslt and take any and all evidence tendered on behalf of

95 Exhibit 1-1058



Page: 77

the claimants for such parish, thereafter making full return to the lands office

upon which return the patent should issue forthwith to the parties so entitled

and to others respectivelyupon arriving at the necessary.aqe,

[229] By Order in Council May 5 1 1875,96John Machar (,'Machar") and Matthew

Ryan ("Ryan") were appointed commissioners to investigate the claims of

personsentitled to participate in the section 31 grant.

[230] The Machar/RyanCommissioncommenced its work and largely completed

it during the balanceof 1875. The commissionerscompiled separate returns for

each parish. These were approved and signed by Dennis and Laird around

January 311 1876. Thus, an authoritative list existed of those entitled to share in

the grant.

[231] There was concern that the list might be incomplete because of the

absenceof Metis from the provinceat the time of the commissioners' attendance

at various respective parishes, but it was at least reliable for those'whose names

were included. Because of that concern, Codd, at the Dominion Lands office,

was authorized to receive additional applications and Ryan was authorized to

take applications while serving as a stipendiary magistrate in the North-West

TerritorIes.

[232] During this time, efforts were being made in Manitoba to amend The

96 Exhibit 1-1067



Page: 78

Half-breed L.andGrant Protection Act, 1873. On May 14, 1875, Manitoba

passedAn Ad to a'mell d Cap. 4'6 [sic] Viet. 37, intituled: The Half-breed

Land Grant Protection Act, S.M. 1875, c. 37.97 This Act softened the

protections provided under the original Act as it required any vendor who wished

to repudiate his or her agreement to sell to pay a substantial refund of the

money received plus interest and expenses, failing which the sale was valid and

the vendor would be required to assign to the purchaser the lands so granted

within three months after receipt of the patent from the Crown. Morris did not

,reserve his assent to this Bill, but on October 7, 1876, Canadadisallowed the Bill

on the basis that the original Act 'provided all' necessary protection for the

purchaseof half-breed land rights.

[233] By this time, 6V2 years had passed since enactment of the Act. The

evidence discloses that there was pressure not only from speculators and new

settlers but from many Metis to enable binding salesbefore patent. Clearly,

between 1874 and 1877, sales of claimaht'sinterests had continued by various

means.

[234] Following the Machar/Ryan Comrnlsslon, Order in Council March 23/

1876/98

was passed. It reported that the commissioners appointed to examine

into claims for half-breed lands had completed their investigations and that the

Department of the Interior was now in a position to commence issuing patents.

97 Exhibit 1-1075

98 Exhibit 1-1171



Page: 79

It also provided that assignments by section 31 claimants before grant of patent

would not be recognizedby Canada.

[235] Another complication then arose. Nothing further had been done towards

the issuing of patents when in the summer of 1876/ Dennis expressed concern

that the 190-acre allotments might be too large if too many applicants came

forward. Accordingly, on July 12, 1876, he wrote Codd99 asking for his views

"whether the 1,400,000 acres will be sufficient in allotments of 190 acres each,

to satisfy the number of claims of half-breed children likely to be proved under

the Act."

[236] Codd considered the question and wrote Dennis on August 10, 1876.100

His letter advised that he believed the total number of recipients would not

exceed 5/814 and provided the rationale for such belief. The number ultimately

was set at 5,833 in order to yield an individual allotment size of 240 acres.

[237] Codd's proposal was endorsed by the Federal Cabinet and became Order

in Council September 7, 1876.101 This resulted in the cancellation of the second

allotment and necessitated a third allotment where the grant size would be 240

and not 190-acreparcels. This, of course, resulted in further delay.

99 Exhibit 1-1188

100 Exhibit 1-1192

101 Exhibit 1-1200



Page: 80

[238] The third allotment commenced October 30, 1876, 61/2 years after

passageof the Act. The public notice published October 23, 1876,102concerning

the third allotment provided that the process would proceed with "all due

diligence".

[239] The third allotment was not completed until 1880. The expressed reason

for the delay was that both Codd and latterly Morris's replacement as Lieutenant

Governor, Joseph EdoLiardcaucnon, did not have the time given their other

duties to deal with the allotment and- both were unwilling to allow others to

participate in the allotment process apparently for fear that confidential

information as to the location of the particular allotments would become known

to speculators.

[240] On November 2, 1876, shortly after he hac begun drawing the 240-acre

allotments, Morris wrote the Secretary of State reasserting his earlier proposal

that the land specifically allotted to a particular grantee be made known and that

the land be vested in the allottee upon completion of allotment for two reasons:

(1) so as to permit the allottee to protect the timber located upon the land, '.

allotted, and (2) because of the great extent of land to be allotted, a very long

period of time would passbefore the issue of patents.

102 Exhib it 1 -1 2 12



Page: 81

[241] On November 18, 1876, the Executive Council of Manitoba sent an

address to the federal Privy Council103 in which as regards the section 31 grant it

wrote:

With regard to the Half-Breed lands to be allotted to the children, under

the Manitoba Act, the Councilwould urgently request that so soon as the

lands reserved for a parish or township are drawn and allotted public

announcement thereof should be made, in order that children of full age

to whom lands have been allotted may have the opportunity of settling

upon and that the parents or guardians of minors may have the

opportunity of protecting any timber that may exist upon the land.

Council are aware of many young men who are anxiously awaiting the

announcement of the lots that have fallen to them, in order that they

may settle upon the land if it be suitable. They are also of the opinion

that the children of full age should have the right to sell the lands allottedto them so soon as the allotments have been made and confirmed

without awaiting the issueof the Patents owing to the length of time that

will be occupied before the issue can take place.

[242] This request was rejected by the Federal Government. Order in Council

January 17, 1877/04 made clear to the province that it would not be.wise "to

enter into any discussion about the policy which ought to be adopted by the

Government of Canada in reference to the public lands of the Dominion with the

Executive Council of the Province of Manitoba, as the Government are directly

responsible to Parliament for the course which they may take upon the subject"

and would deal with that issue "in the manner which the Government believe to

be most favourable to the public interests, and with a full sense of their

responsibility to Parliament and to the people".

[243] Later in 1877 however, after further addressfrom the Manitoba Legislative

1Q 3 Exhibit 1-1220

104 Exhibit 1-1233



Page:82

Assembly, Canada permitted the publication of allotments. That, of course, was

what Morris had recommended in December 18731 but which had been rejected

by the Federal Government which had chosen instead to follow the

recommendation of Dennis.

[244] On January 22, 1877, Dennis wrote a letter to Tache on behalf of David

Mills, Minister of the Interior. For a variety of reasons, he proposed that the

section 31 grant be commuted from land to cash. He sought Tache's view of

such a proposal.

[245] On February 5, 1877,Tache replied.io s

[246] In his letter, Dennis had drawn a distinction between those claimants who

were at least 18 years and those who were less than 18. In his response,tache

acknowledgedthe distinction. As regards those over 18, he wrote:

The claimants of classA not being considered as minors, are the owners

of their claims, and with them remains the power to dispose of or toretain themas they think proper. '

[247] Tache went on to say that if they wished to retain' their lands, they could

not -be forced to sell. And if they wished to 'sell them, -the government, by

offering a fair price, could enable that and discouragethe designs of speculators.

[248] As regards those who were minors, Tache said that it was impossible to

deal with their claims "just now". He wrote:

The Manitoba Act having received the sanction of an Imperial Ac t , its

provisions cannot be re-adjusted by the Canadian Parliament, and I am

105 Exhibit 1-1243



Page: 83

very doubtful as to the willingness of the Imperial Parliament to enact for

the disposal of lands set apart for minors. For my part I would not feel

justifiable in recommending any action which minors, when of age, might

deem as having been prejudiciable [sic] to their interests. Scarcity of

land in a few years hence may render the children of Half-Breeds better

able to appreciate its value than their relatives do at present, and thepreservation of their grant may be the only way to secure a footing for

them in their native country. What seems an impossibility just now will

cease to be so when the claims will mature,and then they might be

yearly disposed of in the sameway as mentioned in the caseof classA.

[249] Once the Federal Government commenced the final allotment, the

Manitoba Legislature, on February 28, 1877, passed The Half-Breed Land

Grant Amendment Act, 1877106 which, effective July 1, 1877, permitted sales

by any Half-Breed having legal right to a lot of land in the grant. It then became

safe for a purchaser to make a binding transaction with a section 31 allottee who

was over the age of 21. In 1878, Canadadecided to allow that Act to stand.

[250] On February 2, 1878, Manitoba passed The Half-Breed Land Grant

Act, 1878.107 This Act enabled half-breeds between the ages of 18 and 21 to

sell their lands but contained protection against improvident sales by requiring

the consent of the parents to the sale and acknowledgment by the person selling

separate and apart from the parents, before a judge or two justices of the peace,

to guard against unreasonable parental influence. Canada permitted this

legislation to stand.

106 Exhibit 1-1261

107 Exhibit 1-1333



Page: 84

[251] On that same date, Manitoba also passedAn Act respecting Infants

and thei(E,st~tes,08 which amongst 'other thirl'gs established general rules for

disposition or-the',estate and property of infants. This legislation provided that

sales of property needed to be approved by a judge of the Court of Queen's

Bench. The result was that many eligible section 31 recipients sold their

interests in lots at varying times and for varying prices.

[252] On June 25, 1879, Manitoba passedThe Half-Breed Land Grant Act,

1879. 109 This permitted sales by power of attorney by 18 year aids in

accordancewith the procedure set out in that Act.

[253] On May 2, 1885, Manitoba enacted The Quieting Titles Act, 1885.11°

This Act was passed for the purpose of quieting titles in antiCipation of the

introduction of the Torrens system.

[254J. Over time it became apparent that the Federal Government had erred in

its estimate of the number of persons eligible for receipt of a section 31 grant.

In the result, it granted in excess of 1 ,400 , 0 00 acres but nevertheless left 993. ' I

.childrenwithout land grants. Those children received scrip in lieu of land.

(255] By memorandum to the Minister of the Interior dated May 1884,111 Deputy

Minister A.M. Burgess wrote that there were about 5 0 0 claimants whose

108 Exhibit 1-1334

109 Exhibit 1-1416

110 Exhibit 1-1668

11 1 Exhibit 1-1613



Page : 85

applica tions had been approved but w hose cla im s w ere unsatisfied because the

land had been "exhausted", He was unable to expla in the error, bu t

recommended that scrip be issued to the children.

[2 56] For w hatever reason action was postponed until April 1885 w hen Burgess

subm itted another report in w hich he expla ined how this shortage occurred+?

Burgess recomm ended as equitable tha t the issue of scrip to each half-b reed

child who has since proved his or her cla im shou ld be for $240.00, the same to

be accepted as in fu ll satis faction of such cla im . The $240.00 was based upon

240 acres (being the size of the individual grant) at the rate of $1.00 per acre.

[257] C abinet accepted this advice and O rder in Council April 20, 1885,113was

enacted. It required that all c la im s had to be filed w ith necessary proof on or

be fore May 1, 1886, or they would cease and determ ine. This expiry date was

am ended an d extende d on several occasions.

[258] In a speech made by Macdonald to the House of Commons in July 1885,

ta lking about the shortfa ll o f land re lative to the number of cla imants,

Macdonald 114 recounted the events lead ing to th is shortfa ll. He said the

fol loWing:

If the census that had been taken and returned by Governor Archibaldhad been accepted there would have been land enough in the

appropriation to have settled all trouble, as well for the half-breeds whowere actually registered and got their lands as for the half-breeds who

11 2 Exhibit 1-1655

113 Exhibit 1-1662

1 14 Exhibit 1-1678, page 3113



Page:86

happened to be away on the plains at the time the final adjudication was

made.

(3) Facts Material to Implementation of the Se~tion32 Grants

[259] Prior to passage of the Act, land at Red River had been taken up both

within and outside the Settlement Belt. Some residents held, land by way of

freehold grant and others by grants of estates less,than freehold. In both such

instances; th~ land was within the Settlement Belt,and,the grants were from the

HBC.

[260] In addition, however, many residents held land as squatters, that is, they

did not hold grants of land of any kind from the HBC. Those whose land was

within the Settlement Be,ltwere squatters with the sanction of the HBCwhereas

those outside the Settlement Belt where Inclian title still existed were squatters

without sanction of the HBC,such sanction not being required.

[261] One of the causes of the resistance was .the concern, particularly of the

.French Metis, that the Settlement upon ,becoming part of Canada would

experience immigration, particularly from Ontario, which would result not only in

a loss of their religion and culture but, as well, of their land. This concern was

evident from the actions of the French Metis in the summer and fall of 1869 and

was recognized by Canada as is evident from the writings or statements of

representatives of the Crown.



Page: 87

[262] For example, Governor Genera! Young issued a proclamation dated

December 6, 1869, addressed to the residents of Red River in which he said, in

part: 115

By Her Majesty's authorlty I do therefore assure you, that on the union

with Canada all your civil and religious rights and privileges will berespected, your properties secured to you...•

[263] As wei!, on December 7, 1 869,1 16 Howe advised McDougall who was to

have become the Lieutenant Governor of the North-West Territories on the

intended takeover date of December 1, 1869, that he should .assure the

residents:

That all their properties, rights and equities of every kind, as enjoyed

under the government of the Hudson's Bay Company, will be continuedthem.

. That ln granting titles to land, now occupied by the settlers, the mostliberal policy will" be pursued.

[264] Macdonald himself in his letter to Smith on January 3, 1870, 11 7

commented upon the first bill of rights which Smith had previously sent to him.

He told Smith that some of their claims "are altogether inadmissible" and he

proceeded to comment upon "what we are willing to concede", As well, he told

Smith:

....you can assure the Residentsthat all titles to land held by residents in

peaceablepossessionwill be confirmed, and that a very liberal land policyas to the future settlement of the Country w H l be adopted.

115 Exhibit1-0346116 Exhibit 1-0347

117 Exhibit 1-0372



Page: 88

[265] And Smith in a confidential report to Howe dated April 12, 1870,118

provided a :Iemgthy;report asto his work at RedRiver pursuant to the commission

given him by the Governor General, including his response to the Convention of

40 in respect of the second bill of rights which it had given to him for review and. ,-

comment. Clause 8 of that list of rights provided for "A Homestead and Pre-

emption Law",

[266] Smith reported to Howe that i n respect of the eighth provision, he had

told the Convention:

I have been instructed by the Canadian Government - to make known to

the people of the Settlement - that all property held' by residents 'in

peaceable possession will be secured to them; ahd that- a most Liberal

land policy in regard to the future Settlement of the country will be

adopted, - every privilege in this respect enjoyed in Ontario or Quebec,

'being extended to the Territory.

[267] Reassurancescontinued to be given including in the discussions with the

delegates from Red River leading to passageof the Act on May 12, 1870.

[268] And, of course, Cartier,wrote on May 23, 1870 to Ritchdt and Scott,119

wherein in reference to subsection32(4), he said:

Gentlemen - With reference to the representations you have submitted

respecting the fourth paragraph of Section 32 of the Act to establish and

provide for the Government of Manitoba, in which it is stated that "all

persons in peaceable possession of tracts of land at the time of the

transfer to Canada, in those parts of the Province in which the Indian titlehas not been extinguished, shall have the right of pre-emption of the

same, on such terms and conditions as may be determined by the

Governor in Council, I am in a position to give you the assurance, on the

part of the members of the Government that so soon as the Government

can grant the necessary titles, no payment shall be required from any of

the persons mentioned in the paragraph, but that they shall be placed

118 Exhibit 1-0446

1 1 9 Exhibit 1-0499



Page:89

upon the same footing as the persons mentioned in the three precedingparagraphs. ....

[269] The evidence shows that during 1871 and 1872, tension continued

between the residents, particularly the French Metis, and Canada concerning

landholdings. Immigrants were coming into the province and taking up land for

settlement whereas the old residents were anxiously awaiting confirmation of

their landholdings under section 32.

[270] Order in Council May 26, 1871, provided protection for new settlers who

took up land prior to survey. This increasedor at least contributed to the anxiety

of the longtime residents of the community who became concerned that their

claimswould be adversely affected as a result.

[271] Order in Council November 11, 1872,120provided that those entitled to

makeapplication under subsection32(4) of the Act should be dealt with

... on the same terms as the classof settlers described in subsection (3)preceding the above; that is to say, that the occupancy'shall if required

by the owner, be converted into an estate in freehold by grants from the. Crown.'

Enactment of this Order in Council had become possible by reason of the fact

that Indian title over the territory including the lands in question had now been

extinguished.

[272] By letter dated November 20, 1872, to Aikins/21 Morris wrote:

I have the honour to call the attention of His Excellency the GovernorGeneral in Council to the subject of the lands in Manitoba and the claims

120 Exhibit 1-0749

121 Exhibit 1-0751



P age: 90

and rights of the Original Settlers and others relating thereto, as also to

the question of the appropriation for the benefit of the families of the

Half-Breed residents.

I am aware that until the surveys had sufficiently progressed and untilthe tracts to be allotted to the Halt-Breeds had been determined on, it

was impossible to deal with these questions.

The inaction that' necessarily resulted from this position of affairs has

nevertheless been made a fruitful source of disquiet and is now being

used by Agitators on different sides of Local polities end from their

different points of view to disturb the minds of the inhabitants of the

Province and thereto to commit them to movements which will be

injurious to the best interests of Manitoba.

[273] M orris then m ade suggestions as to how he m ight appease this agitation.

He addressed the -Ha lt -B reed Reserves, the issue as to the rights of common and

rights o f cutting hay and the land referred to in section 32. A s rega rds the la tter,

h e w ro te :

I have further to recommend that the Public of this Province be informed

that, during next .Seasorr, the', lands in the occupation of residents of the

Province who held under the Hudson's Bay Company at the time of the

transfer to Canada, will be surveyed, in order that the owners thereof

may obtain Grants from the Crown therefor and that the land of otherpersons Who at the said period, were. in peaceable occupation of tracts of

land, in those parts of the Province where Indian title was 'not

extinguished, wiU also be surveyed, in order that such occupants may

claim the right of pre-emption under the 32ndclause of the Manitoba Act.

[274] 'By le tte r d ate d D ec emb er 6, 1872, 122 Ajkin~,responde d to M orris 's le tter o f

N ovem ber 20 w ith respect to section 32 . H e w rote as fo llows:

With respect to securing occupants under clauses 1, 2 and 3 of section 32

of the Manitoba Act, the intention is to issue Patents to all such parties as

soon as possible after the surveys, now near completion, are closed and

approved.

I have also further the honour to transmit you the enclosed copy of an

Order in Council dated the 11th November ultimo, which' secures to

l22 Exhibit 1-0755



Page:91

occupants under clause 4 section 32 of the Act mentioned a free grant of

their respective holdings.

I note that the remainder of this document is missing. Hence, it is impossible to

know whether Aikins may have said anything more about the subsection 32(4)

lands.

[275] At about this time, the issue of "staked claims" arose. Both within the

Settlement Belt, especially in the outer parishes, and outside the Settlement Belt/

settlers had staked or demarcated landwhether by marking the land with blazes/

plowing furrows around it, placing the outline of log buildings on the land or

building or placing a small shed or the like upon it.

[276] This practice had existed in the Settlement for some time. In addition,

however, some residents led by, or at the suggestion of, Ritchot had done this

between passageof the Act on May 12 and its effective date of July 15, 1870.

[277] On May·3, 1873, CanadapassedAn Act respecting claims to lands in

Manitoba for which no Patents have issued (S.c. 1873, c. 6), 123

establishing a commission to hear and determine all claims under subsections

32(1) to (4), and a process for the issuing of patents under section 32.

However, this Act was never implemented.

123 Exhibit 1~0873



Page: 92

[278] On September 5, 1873, Dennis wrote Alexander Campbell ("Campbell"),

Minister of the Interior,124 proposing procedures to facilitate the granting of

patents under section 32 of the Act . He proposed:

1. On an application being received at the Land Office for a patent,

should the papers filed in connection therewith as also the report of the

Surveyor who surveyed the land, shew that the claimant is in possession

of the land claimed, and should there be no opposition to the claim, and

rid reason to doubt the right of the applicant to receive patent, the

papers should be forwarded to Ottawa, recommended accordingly by the

·locai Agent of the Dominion Lands, and a patent should .lssue in due

course.

[279] He also recommended that a list should be posted of ail applications for

patents received in which there was reason to thin~ the title questionable and

that such applications shouldgo before the Commissioners. As stated above, the

Act creating the Commission was never ·implemented and the procedure

proposed by oennts.was not followed.

[280] On November 13, 1873, some residents of Ste. Agathe submitted a

petition125 setting out their claims under subsection 32(3) to land on both the

east and west sides of the Red River based o n the fact that they resided on the

west side and harvested wood, hay, etc., on the east side and had.·cfqneso.for

many years prior to the transfer. In the petition,-they stated that the surveyor

said he could not draw the lines of that part .of the property situated on the east

Side directly OPPOSiteo that part on the west side of the Red River. They

asserted that the property on the east side of the river had belonged to them

124 Exhibit 1-903

1 25 Exhibit 1-0922



Page:93

from the same time and was claimed under the same title as that part of their

lands on the west side of the river, that immediately on taking lands on the west

side, they took lands on the east side of the same length and width and that the

property on the east sidewas integral to the property overall.

[281] The petition assertedthat they held the land with the sanction/ permission

and authorization of the HBC/ that such peaceable possession was recognized

under subsection 32(3) of the Act and that they would oppose whoever would

deprive them of that part of their property.

[282] A.H. Whitcher, Inspector of Surveys/ wrote Dennis on November 15,

1873/26 enclosing the petltlon, He pointed out that there were no buildings or

improvements on the east side of the river. Hewrote:

Many of the settlers on the west side of the Red River claim lots on the

east side, because they have cut either wood or hay or perhaps both.

This it appears to me if anything would only be a hay privilege or right ofCommon, but if it is accepted as occupation or possession under the

ManitobaAct/ then there will be little if any land in the settlement belt/ or

indeed in the Provincewhich carinot be claimed in this way.

[283] On November 19, 1873, Whitcher wrote Dennis127asking how he was to

receive and deal with applications for patents in instances where, in his opinion/

parties had no claim for a patent. He asked if he had the power to refuse the

application or inform the parties they had no claim under the Act.

126 Exhibit 1-0922

127 Exhibit 1-0924



Page:94

[284] On November 27, 1873, the Deputy Minister of the Interior wrote

Whitcher instructing him not to accept the claims from Ste. Agathe to the lands

on the east side of the RedRiver. He wrote: 128

... I am to request You to inform the Petltleners that iO.the absence of

evidence to shew occupation or possession of the said lands as

contemplated and required by the Manitoba Act it would not appear that

. the right set up bythem to the lands in. questior, ts of such a characterthat it should be necessarily respected in the survey of the lots on theRiver....

[285] He instructed that t~ey would have to pursue their claims before the

Commission and obtain a favourable pronouncement from the Commission,

before their claims would be recognized by the government. But, of course, the

.. , .

Act passedon May 3, 1873, creating such a Commissionwas never implemented.

[286] As part of the ongoing question, what was required in order to give

recognition to one's clatrn outside the Settlement Belt, Morris wrote the Minister

of the Interior on M~.rch2.5,1874}129 in which he stated:

... I took recent occasion to examine the minutes of the Council.o f

Assiniboia from the 4th day of May 1832 to the 25th of October 1869with

the view of ascertaining whether there was anything contained therein

bearing on the land questionswhich havearisen here.

In doing so I discoveredthe enclosedimportant minute which is the only

one dealing with the question of land apart from minutes relating to the

Hay and Common rights.

This minute seems to throw light on section 32 of the Manitoba Act,

subsection (4) and also would go to shew that in those parts of theProvince where there had been no surveys and in the Territory as at the

Portage beyond the strict limits of the Provinceof Assiniboia, occupation

of the land by settlers had as in Ontario the effect of giving the occupant

a right of preemption.

1 28 Exhibit 1.0926

1 29 Exhibit 1-0965



Page: 95

[287] As well, Coddwrote similarly on March28, 1874, as follows:13o

I have the honour to enclose an extract from the minutes of the Council

of Assiniboia handed to me by His Honour the Lieutenant Governor,

showing the conditions upon which persons were allowed to take up land

outside of that part of the settlement which had beensurveyed.

In my opinion this minute has an important bearing upon the question of

the so-called "staked claims" [illegible] those claims to large tracts of land

preferred by persons who planted stakes at the corners, or ploughed

furrows previous to the transfer, for the principal argument advanced in

favour of such claims is that the Act of so staking out had always been

recognized by the Governmentof the settlement of Assiniboia as giving a

valid claim to such lands, it would appear, however, from the terms of

this minute, that the Council of Assiniboiadid not recognizeany claims to

lands outside of the surveyed portion of the settlement which was not

[based] upon occupation....

[288] The provision to which both referred in the laws of the Council of

Assiniboia provided as follows:

That in difficulties arising between persons who take land outside of the

part of the Colony already surveyed, or even that exceeding the limits of

the Colony, the magistrate be authorized to take for the principle that 12

chainsshall be the limit of preemption rights arising from occupation.

The Council of Assiniboia recognized occupation as a requirement in order to

give recognition to one's claim in land outside the Settlement Belt, or surveyed

area.

[289] On May 26, 1874, Canada passed An Act respecting the

appropriation of certain Dominion Lands in Manitoba (S.c. 1874c. 20) .131

This Act combined subsections32(3) and (4) of the Act in providing that persons

who satisfactorily established undisturbed occupancy of any land within the

Province prior to, and being by themselves or their servants, tenants or agents,

130 Exhibit 1-0970

131 Exhibit 1-1000



P a g e : 96

or those through whom they claim, in actual and peaceable possession thereof

on MarCh 8, 1869, would be entitled to obtain letters patent for such land. This

Act was amended on April 8, 1815 (S.c. 1875 c. 52)132to change the date from

March a , 1869 to July 15, 1870.

[290] On March 19, 1875, an Order in Council was Issued authorizing the first

section 32 patents.

[291] On April 8, 1875, Canada enacted An Act respecting ConflictingI

Claims to Lands of Occupants in Manitoba, S.C. 1875 C. 53.133 This Act

established a commission to decide upon adverse or conflicting claims to lands

mentioned in subsections 32(3) and (4). However, it empowered the

cornmlsslon to deal with claims between settlers ·only, bu t not between a settler

and the Crown, which the 1873 Act,134though never implemented, had done.

[292) On April 30, 1875, Laird wrote Morris135 respecting this legislation and.[ .

stated:

You will see we have given Commissioners jurisdiction only in conflicting

claims between settlers, and cases of heirs - not, as against the Crown.

We think that can be settled through the Department according to the

other Bill being actual occupation down to July 1, 1870.

The date July 1was in error and should have been July 15, 1870.

132 Exhibit 1~l052

133 Exhibit 1-1053

134 Exhibit 1~0873135 Exhibit 1~1063



Page:97

[293] Part of the evidence to be placed before a conflicting claims commissioner

was the report of the surveyor. In a memorandum dated March 4, 1876,135

Dennis provided Laird with particulars as to the protocol to be followed

pertaining to applications for patent for lands under section 32 of the Act. He

wrote, in part:

2. A transcript of the report of the Surveyor employed by this

Department to survey the land expresslywith a view to granting a patentfor the same. In making this survey, the surveyor was in all cases

specially instructed to ascertain and report each lot occupied, giving its

precise position and boundaries, the name of the person in possession,whether as owner or tenant, whether there was any adverse claim

thereto, and if so, the facts connected with such adverse claim.

These surveyswere entered upon in the spring of 1871, and werecompleted in 1873, with the exception of the Parish of Ste, Agathe, whichwas completed in the following year (1874).

The undersigned would remark that the rights of parties to any

certain lands claimed as being occupied at time of the Transfer, were so

well known and understood among the people of the parishat the time of

the survey being made, that the Surveyors' return of claimants andoccupants in itself is very reliable evidence in the case of a claim made

for patent to a given lot, and where the evidence accompanyinga specificapplication for such lot is borne out by such return and no counter claimhas been filed (although the printed Notice referred to above is and has

been since the date'therein a standing PublicNotice) the case is assumed

to be one in which a prima fade right to a patent is made out, and the

papers are in due course submitted for the final dedslon, as to title, of

the Department of Justice.

Documents

MMF Land Claim (1 of 4) QB Decision - Dec. 7, 2007