Wednesday, December 27, 2006

Got Metis land claims questions?

Tansi/Good Day Folks:

We trust you've had a nice holiday season. Recently Winnipeg lawyer Jeff Niederhoffer wrote an excellent article ("Jeff Niederhoffer Weighs In" - December 21, 2006 which points out some very interesting issues:

Kim (Lavallee) raises a fascinating question. While most of my practice (when I was in private practice) was in non-commercial civil litigation, I have dabbled a bit in corporate law, and have also for the past one-and-a-half years been exposed to this interesting world of Metis politics, such that I might have a few interesting comments to offer.

As a corporation, the MMF legally only represents its shareholders, but as an interest or advocacy group, it purports to politically represent the Metis Nation as a whole. While it offers memberships to persons of Metis ancestry (however determined - and I understand it is a very controversial process of determination), memberhip in the Federation is voluntary, and in point of fact, I believe most Manitoba Metis have chosen not to be members of the Federation. Even those Metis who are Members of the Federation (such as, I believe, Derryl) find the activities of the Federation and its President to be controversial, and it is unlikely they would agree that the Federation in any sense speaks for them.

Coupled with the fact that the Federation has nothing approaching the powers and responsibilities of a level of government, it would seem difficult to politically argue that the MMF can legitimately claim to speak for the Metis people as a whole. Of course, this is an issue with not only political but constitutional implications.

My exposure to constitutional law has been extremely limited, but I believe that the issue of whether the MMF has legal "standing" to speak for all Metis is one of those issues that will be determined in the upcoming ruling in the MMF land claims case. No doubt resolution of this issue, together with the broader issue of the compensation (if any) owed Metis by the federal government, will play a significant role in determining whether the MMF can legitimately claim to represent the Metis Nation.

Even if the MMF is recognized as having legal standing in constitutional cases, however, it undoubtedly will remain a bone of contention among certain Manitoba Metis whether this translates into any kind of broader political authority.

Next consider the following excerpt from a letter Mr. Roland Penner sent CyberSmokeBlog dated April 3, 2006:

The difficulties I perceived then (on the basis of legal opinions) were essentially who could claim, what could be claimed and whether there was any operative statute of limitations? I can't recall with any precision what my view (or, more precisely the view of my legal advisors) was then, but I am presently of the opinion that there is a sound basis for a constitutional challenge as the first step in the process and that, as is the case, the MMF can plead that issue.

The MMF cannot claim land or damages, only the descendants of the originally intended beneficiaries can do that. And, importantly, I do not think a constitutional challenge is subject to any statute of limitations. If there is a decision favourable to the MMF's constitutional challenge then in my view, the proven descendants can claim likely not land but at least damages and can do so free from any time limitation challenge.

As I said this morning, AT THAT STAGE a Land Claims Commission would be the only sensible way to go. (emphasis ours)

Messrs. Penner and Niederhoffer's comments raise the following questions. Perhaps you have others:

(1) Who is the bona fide political representative of Manitoba's Metis? Is it exclusively the MMF? This point was argued in a pre-trial Motion filed by the Defence (Attorneys General Canada/Manitoba) shortly after the original Statement of Claim was registered in 1981. You may recall it came up again during the Court of Queen's Bench proceedings earlier this year

(2) Should the Federation be given complete control over the management and distribution of any Court ordered award?

(3) Must you be a Manitoba Metis Federation Member to be eligible for an entitlement? What if, for whatever reason(s), you're not nor wish to become one?

(4) Should Manitoba Metis who qualify for C-31 Status be eligible for entitlement? What if you were Metis but now hold a treaty card?

(5) Given the MMF's Statement of Claim asks for 1.4 million acres of land, some prime Winnipeg real estate on both sides of the Red River, are the Plaintiffs likely to get it? If so, how should those whose time, effort and investment have significantly increased its value during the intervening years be compensated?

These are some of our questions what are yours?

Clare L. Pieuk

Note: Roland Penner was Manitoba's Attorney General when the original land claim was filed. He's a Queen's Counsel and Member of the Order of Canada. Currently he teaches Constitutional, Criminal, Evidence, Labour and Charter of Rights Law at the University of Manitoba

Jeff Niederhoffer is a Staff Lawyer for The Community Legal Education Association (Winnipeg).


Anonymous Anonymous said...

I would like to take a shot at those questions.
1. There are no bona fide political reps for the Metis, only the lawyer a Metis chooses to represent him or her. A Metis still falls under Canada's Political laws with the difference being Red River Metis had landscript or property that was taken away from them. As a Metis I may vote in main stream politics because I am still a Canadian. The MMF is just a Club getting tax money that is suppose to help the poor Metis, but gets redirected for other purposes unknown to most of us and those who know, will not say because they will get sued or hardship will fall upon them.
2.Absolutly no to question 2. With the state of the MMF and it's present board, only friends and family would share in this new wealth. We would also see people without land script profiting, just like it happened 130 years ago. Crumbs would be given to others to keep them quiet. Also, why would I want someone else handling my affairs and or property.
2.No to question 3. Only Red River Metis with Land Script are entitled. They are the ones who lost everything, such as our farm as late as 1962. Taken away for a couple hundred of tax dollars, or The Catholic Church who took my Grandmothers property because she had burrowed a few hundred dollars and died before she had a chance to pay them back. Metis membership means nothing, it's like joining a club run by an uncle who keeps you in line.
4. If your family held script in the Red River Valley, even C-31 status should be eligible for entitlement. C-31 are still mixed blood. Many Metis have joined the white race, (we should call them
W-31) but they are still Metis.
5. Yes to question 5. How the government deals with it is up to them. When the government and their bandits kicked the Metis off their land, they should have thought of compensating the Metis then. If a bankers steals from his client, the court makes him pay it back. The court doesn't care where the banker gets his money as long as he pays it back. If the banker gets caught 20 years later, he must pay back at todays currency value plus interest. If my antique car got stolen and the thief spent $50,000 repairing it, the law doesn't look at that expenditure, only the fact that the car is mine and I would get it back regardless of the condition. I would not pay the thief 50 grand to get my car back. This same law should be enforced in this case.
I suppose all this makes to much sense and the Government would have to through it out.

I would like to see others thoughts these questions.

Happy New Years Clare
Your Elder is back.

11:50 PM  

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