The earth belongs to the living.
– Thomas Jefferson
When Canada purchased Rupert's Land from the Hudson's Bay Co. in 1869, the Métis of Red River, led by Louis Riel, resisted the transfer. As an inducement to join Canada, the federal government offered to distribute 1.4 million acres of public lands to "the children of the half-breed heads of families." By 1880, after the land was surveyed and allocated by lottery, more than 6,000 beneficiaries had received grants of 240 acres each.
In its recent decision in Manitoba Métis Federation v. Canada, the Supreme Court of Canada ruled that the distribution of the land was so slow that it violated "the honour of the Crown." Ironically, the court objected to the 10 years required to distribute 6,000 land grants but didn't comment on the fact that it had taken our modern judicial system 37 years to deal with the Métis claim, which was first filed in 1976.
The majority's opinion tried to render what American economist Thomas Sowell calls "cosmic justice," to identify injustices that may have occurred over a century ago in southern Manitoba but whose effects, if any, have been diffused over generations of relocation and intermarriage across North America. The court, in fact, limited itself to defining the past injustice, without trying to identify its current consequences.
The decision gave the Métis an important victory but rejected almost all of their other contentions – that the Crown had a fiduciary obligation in managing the land grant, that the rules surrounding the grant should have been different, that the Métis should not have been allowed to sell their grants, that there were also massive violations of other types of Métis landowners' rights. And the one win the Métis did get came with no tangible benefit attached. This declaratory judgment ruled that Canadian public administration in the 1870s had not upheld the honour of the Crown but did not provide any remedy in the present day.
Moreover, this judgment applied only to the land grant in the original "postage stamp" province of Manitoba. Throughout the rest of the three Prairie provinces, the Canadian government did not make a land grant to the Métis but distributed scrip that could be sold or exchanged for land. Litigation based on these scrip programs is already making its way through the lower courts, but this decision gives little guidance about it because the facts are so different.
So whither the Métis? The Supreme Court as much as admitted that it gave them this win in order to strengthen their hand in negotiating with the federal government. But what can they negotiate for, especially since Métis leaders have already said they won't try to reclaim privately owned lands in Winnipeg and southern Manitoba?
Some whose parents or grandparents lost their status under the Indian Act may wish to become status Indians, but that will be only a tiny portion of the almost 400,000 Métis enumerated by Statistics Canada in 2006. Another small number might want something like the Métis settlements that Alberta has had for 75 years; but only about 6 per cent of Alberta Métis have chosen that option, so don't expect a large number of applicants in other provinces.
The plain fact is that most of today's Métis live in cities and towns, send their children to public or separate schools, and are self-supporting. They have all the rights and opportunities of other Canadian citizens. And like other Canadians, they want a better life; but they don't want a radically different life outside the Canadian mainstream.
Governments could make symbolic concessions – speeches, apologies, memorials, museums and historical parks. But what about more tangible demands for redistribution of wealth or income? The cost of such transfers would have to be borne by other living Canadians. It would mean taking money from some living people who have done nothing wrong to give to other living people who have suffered no injury. It's one of the paradoxes of cosmic justice. Both those who may have committed wrongs and those who may have suffered wrongs are long gone, and the best we can do is to pursue justice in our own time.
Tom Flanagan is a professor of political science at the University of Calgary. He was a witness for the federal Crown in Manitoba Métis Federation v. Canada.