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John A. Macdonald and Louis Riel are perhaps the only two figures in our history well-known to most Canadians. Although they never met, in 1870, they were the prime movers in bringing the West into Confederation.

In the case of Manitoba Métis Federation v. Canada, decided by the Supreme Court of Canada last month, the court dealt with the ramifications of what happened nearly 150 years ago between Canada, moving westward, and Riel's people, the Métis, inhabitants of the plains. A decisive moment in Canadian history has erupted into our own time.

The Métis were a new nation that had arisen in the West. The Red River Settlement (now Winnipeg), the largest (12,000) community on the Prairies, was a Métis settlement. In the fall of 1869, when Canada moved to acquire the West without consulting or considering the interests of the people of the Red River, the Métis resisted. They turned back Canadian road builders and surveyors. Métis riflemen refused to allow Macdonald's newly appointed lieutenant-governor, sent out from Ottawa to establish Canadian sovereignty, to enter the territory. Led by Riel, the Métis formed their own provisional government, and governed Red River until the following summer.

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At first, Macdonald dismissed the Métis. As he wrote in October of 1869, "it will require considerable management to keep those wild people quiet. In another year the present residents [i.e. the Métis] will be altogether swamped by the influx of strangers who will go in with the idea of becoming industrious and peaceable settlers."

There was no means for Macdonald to send troops to Manitoba until the following spring. He had to negotiate with Riel and the Métis if he were going to acquire the West for Canada. He invited the provisional government to send delegates to negotiate.

This was a pivotal moment for Canada. Red River was the gateway to the West. If Riel and the Métis agreed to enter Canada, it would open the way to Canadian acquisition of what are now the Prairie provinces and the North. If the negotiations failed, no one could be certain that the Americans might not move in.

Macdonald agreed that 1.4 million acres would be set aside for the 7,000 children of the Métis. This was intended to give the Métis a head start against the expected influx of settlers, to ensure that the Métis would be landowners at the heart of the new province. As the Supreme Court said, this was "the central promise the Métis obtained from the Crown in order to prevent their future marginalization." It was a constitutional obligation.

The agreement between Macdonald and Riel was a turning point in our history. At that time, Canada consisted of four provinces along the St. Lawrence River. Now Canada acquired half a continent, becoming (once British Columbia joined in 1871) the great expanse, coloured in red, occupying the top half of the map of North America.

The settlers soon arrived, along with the soldiers. A "reign of terror" against the Métis followed. Riel had to flee. Instead of a head start, the Métis did not get to the starting line for 10 years. By that time, the Métis had been "swamped" by the influx of settlers. The Supreme Court sets out in detail a lamentable account of the Crown's failure to distribute the children's grant; it was not merely "a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade." Many Métis were driven from the province, moving farther west, to Saskatchewan.

But this unhappy tale is not simply a footnote to the saga of Canada's westward expansion, a trail of historical wreckage left behind.

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The Supreme Court has reached back into the past, fortified by a complete documentary record. The court held that "the Métis did not receive the intended head start, and following the influx of settlers, they found themselves increasingly marginalized, facing discrimination and poverty." The court held that Canada did not uphold the honour of the Crown in its failure to fulfill its constitutional obligation to the Métis. Moreover, the court wrote that "the ongoing rift in the national fabric … remains unremedied. The unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import."

Indeed, the rift in the national fabric remains unremedied. But the remedy lies with us. It's not too late for Canada to negotiate a modern land claims agreement with the Métis. We can't reclaim the past, but we can do justice in our own time.

Thomas Berger, a former justice of the B.C. Supreme Court best known for his work as commissioner of the Mackenzie Valley pipeline inquiry, was counsel for the Manitoba Métis Federation in the Supreme Court of Canada.

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