A chapter of Canadian history comes under scrutiny in the Supreme Court of Canada when the court considers a claim by Manitoba Métis to a vast tract of land in the province.
If the Métis are successful on Tuesday in proving that they had legitimate title to the land and deserve compensation, it could lead to other land claims for Métis in other provinces and provide greater recognition of the Métis' role in the inception of the country.
The claimants, descendants of Louis Riel and his rebellious, one-time provisional government, say the federal government breached the agreement that brought Manitoba into Canada under the 1870 Manitoba Act.
"This is the unfinished business of Confederation," said Thomas Berger, a former judge who represents the Métis and paved the way for a host of aboriginal land-claim negotiations in a similar court battle in 1973. He said because the agreement made Manitoba a part of Canada, it was "a turning point in Canadian history."
In return for losing their right to land title, the Métis were to receive about 5,600 square kilometres of land for 7,000 of their children to settle on. But the claimants argue that because of lengthy delays and inopportune governmental decisions, about 6,000 of the children got disparate plots scattered about the province far from parents and siblings. The other thousand got nothing.
"The Métis say they were to have been a land-holding population at the heart of the new province," Mr. Berger said in an interview. Instead, they were subjected to so much violence and bigotry over the ensuing years that many left the province, he said.
Mr. Berger said he has documents showing that Canada's first prime minister, Sir John A. Macdonald, promised the land to Louis Riel and his confederates. The documents include quotes from Macdonald conceding that, by the time the land plots were doled out by lottery, most of the prime land in the region had been "swamped" by an influx of white settlers from Ontario.
The Métis want the court to rule that the government owed them a fiduciary duty to provide prime land where they could settle in close-knit communities.
However, federal government lawyers argue in a brief to the court that the claimants cannot establish bad faith on the part of government and that the Métis have been impermissibly late in making their claim. Because of the lateness, the government maintains that the question of Métis title to the land and their relationship with the government do not need to be decided.
A federal legal brief also alleges that delays in parcelling out the land were inevitable given the scale of the process. Moreover, the government contends that it would have been practically impossible to locate family members alongside one another.
The case has cost the claimants an estimated $3-million and involved years of searching archives, translating and transcribing handwritten documents from the 1860s and 1870s.
It has gone through the trial courts and Manitoba Court of Appeal three times on different points of law. In the most recent decision, the Métis lost a 5-0 ruling in the Manitoba Court of Appeal.
Arguably, however, no court in the land has been as sympathetic to aboriginal and Métis claimants as the Supreme Court of Canada. So, the final showdown looms large. Mr. Berger said a victory would bring the government to the negotiating table with the Métis to work out a fair disposition for their claim.
"I'm not complaining about the length of the case," he said. "After all, this is a vast canvas we are trying to paint on. We want a declaration that Canada has not fulfilled its fiduciary obligations under the Constitution."