by Gerhard Ens
Winnipeg
Manitoba History, Number 5, Spring 1983
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The Manitoba Act of 1870, which brought Manitoba into Confederation, recognized Métis [1] aboriginal rights by way of their Indian ancestry and granted 1.4 million acres of land “for the benefit of families of half-breed residents.” It also assured all the native inhabitants of Manitoba that the land they already occupied would not be jeopardized by the transfer of the west to Canada. By passing the Act, in particular Sections 31 and 32, the Parliament of Canada committed itself to distributing approximately two and a half million acres of land among the inhabitants of Manitoba of 1870. One estimate of the amount of this land actually allotted to the Métis by 1882 is calculated to be less than 600,000 acres. Of the 6099 patents issued to Métis children by 1900, 5260 were alienated. [2] This dispossession of Métis land raises questions as to the culpability of the federal government in administering the Manitoba Act, and the administration of justice in the Province of Manitoba.
Métis traders, circa 1872
Source: Archives of Manitoba, Boundary Commission (1872-74) 165, N11932.
The ‘Manitoba Land Question’ has generally been approached and studied in relation to the role of the federal government in administering sections 31 and 32 of the Manitoba Act. In newspapers of the day one finds criticism of the federal government, sometimes for delaying the land grants and causing confusion as to who was eligible, [3] sometimes for tying up land from settlement by reserving blocks of land for the Métis. [4] Commentators also complained about the unscrupulous speculators who were taking advantage of the unwitting Métis, [5] but the problems associated with federal government administration of the land received more attention. In the 1950s an MA thesis by Douglas Kemp studied the workings of the Department of the Interior and came to the defense of the federal government, arguing that the early delays and confusion surrounding the Métis land grant did not represent devious political maneuvers or evasions, but a problem of administration. The government, Kemp concluded, discharged its obligations completely and faithfully, but its policies for doing so were largely misunderstood and criticized. The confusion and gross errors in judgement reflected the lack of familiarity with local institutions, customs and conditions. The results of the process, he asserted, demonstrated extreme generosity accorded by the Department of the Interior. [6] A recent study of the Manitoba Land Question, like Kemp’s, takes as its focus the federal administration of Métis land under the Manitoba Act, but it comes to radically different conclusions. Based on a study of the amendments to the Manitoba Act, correspondence of the Department of Justice, and Métis population and land records, Dr. D. N. Sprague has concluded that it was the conscious aim of the federal government, through unconstitutional amendments to the Manitoba Act, to effect the dispossession of the Métis who had been granted lands in sections 31 and 32. [7]
The purpose of this paper is not to prove or disprove either of these arguments but to change the focus of the investigation and examine the neglected provincial aspect of the alienation of Métis lands through a study of provincial legislation. While the province had no powers to set policy in the area of administration of Métis lands it had considerable powers, through legislation and in the courts, to protect the Métis from losing their lands once these were granted. The record here is one of generally protective legislation until 1878 and an almost total disregard for Métis land rights thereafter. This was coupled with blatant illegality in the courts. It is also submitted that in this light, the alienation of Métis land has a particular provincial chronology and focus, that provincial legislation and politics played a major role in both the timing and the manner in which the Métis lost their land.
Provincial legislation dealing with Métis land falls into three basic categories: 1) those acts such as the ‘Half-breed Land Protection Act’ which established the legality of Métis land transactions, 2) acts such as the ‘Infant Estates Act’ which set out regulations as to the procedures to be followed in court for the transfer of real property, and 3) retroactive acts legalizing past irregular and illegal sales to prevent litigation. This legislation is examined as to the motives and intent of the legislators, the attitude of the federal government to the legislation, and the practice of the courts in ruling on it. In general the first two types of legislation were on the books before 1879 with retroactive legislation following thereafter. Practice in the courts is examined after 1877, when infant lands began to be sold through the courts.
The first provincial act to affect the administration of Métis lands was the ‘Half-breed Land Protection Act’ of 1873. This act was passed because of the speculation in Métis lands that had arisen even before the land had been allotted. Taking as his guideline the provisions of the Manitoba Act of 1870 and the order in council of 25 April 1871, [8] Lieutenant Governor Archibald began to make provisions for the distribution of the 1.4 million acres to all Métis adults and children. Though delayed by the need to take a census and have the land surveyed, distribution and the drawing of lots were scheduled to begin in 1873. [9] At this point every Métis resident in Manitoba on 15 July 1870 and every child of such resident was eligible for such a land grant with each allotment comprising 140 acres. [10] As soon as the word got out that land allotments were to be made, wide scale speculation in adult Métis claims began. On 15 February 1873, the Manitoban reported that Métis lands were selling for 3½ cents an acre and that a large deputation of English and French Métis had visited the lieutenant governor to suggest that action be taken in regard to the wholesale buying up of Métis claims. [11] On 21 February 1873, a bill was introduced into the legislature by Marc Girard, the French Canadian provincial treasurer, declaring that if land was sold for less than half of its real value, the vendor was entitled to be relieved of the sale. [12] This bill was rejected because of the complaint that it made the people of the province look ignorant, and in its place Donald Smith proposed the ‘Half-breed Land Protection Act.’ Contending that the Métis did not have the same experience as others in dealing in commercial land transfers and did not know the value of the land, the supporters of the bill argued that the Métis needed protection. The act cancelled all sales made before the issue of patents and gave the vendee an action to recover the price if paid before the enactment of the statute. [13] Those who opposed the bill argued that the legislation still implied that the Métis were ignorant and entered into bargains with their eyes closed. John Norquay, an English Métis himself and a respected spokesman for the moderate English interests in cabinet, supported the bill in principle but objected to the retroactive nature of it and the cancellation of bargains already made. [14] The bill easily passed in the legislature but was reserved by the lieutenant governor on the grounds that it was retroactive and opened the door for litigation, and because there was no machinery to provide for land sales. The Minister of Justice, recognizing the need for protection of Métis interests, recommended that the bill become law with the machinery for land sales to be corrected later. [15] With this recommendation the bill became law in February of 1874.
The effect of this law between 1874 and 1877 has received various interpretations. One interpretation, advanced by Chief Justice Wood and Francis Cornish, an MLA from Poplar Point, was that the statute only served to reduce the price the Métis received for their land since the risk for the speculator was much greater. According to this view the Métis, getting nothing for their claims, should have been at liberty to sell as often as they could find purchasers. [16] Though it is true that sales were still going on, this interpretation is hardly credible. Chief Justice Wood, as will be seen, played a significant role in depriving the Métis of their land in the courts and Cornish, an Orangeman from Ontario, was a self-declared enemy of the Métis. When in 1875 a bill was introduced to amend this protective legislation, the reason was that, in protecting Métis land, the ‘Half-breed Land Protection Act’ tied up too much land by prohibiting sales until the issue of a patent. This would have been unnecessary had the act not stopped the alienation of land. The amendment stated that unless the Métis, having sold his land, returned the money at 12% interest to the purchaser within three months of the date of the passing of the act, the sale would be valid. [17] Opposition to the amendment by people like Joseph Royal commented that whereas the ‘Half-breed Land Protection Act’ had protected the Métis from the speculator, this amendment removed all protection. [18] While the bill was passed in the legislature, it did not go into force. The provincial cabinet fully expected the act to be disallowed, which it subsequently was, on the grounds that the original act “afforded all the necessary protection to the purchaser of half-breed land rights.” [19]
When the provincial legislature began its session in January of 1877, dissatisfaction with the delay of the allotments of land to the Métis dominated the early debate. Wanting to free the Métis reserves for settlement, Cornish proposed to abolish the ‘Half-breed Land Protection Act’ of 1873. In the debate which defeated the motion, John Norquay proclaimed that all Métis had voted against the measure. In light of this assertion, it is difficult to understand the Métis decision to vote for yet another amendment to the 1873 act, which in effect abolished much of the protection that had existed. This amendment, introduced by Robert Davis, the premier of Manitoba and a moderate English representative, provided that any sale made or executed by deed after this act came into effect would be legal and effective for all purposes. [20] The act did, however, provide some protection in that its implementation was delayed six months in the hope that the allotments would be made by then. It also stated that all old transactions were governed by the old act. The federal government allowed this legislation on the grounds that by this time (two years after the disallowance of the 1875 amendment) “half-breeds must, as a general rule, have been well acquainted with the value and interests in the land.” [21] It allowed this act despite the fact that much of the land had not been allotted as yet.
Protection of the Métis from land speculators was further threatened when in 1878 a bill was introduced “to enable Certain Children of Half Breed Heads of Family to convey their Land.” When introduced, it provided that Métis over the age of eighteen could sell their land without their parents’ consent and that children aged fifteen to eighteen (the age of majority was twenty-one) could sell with parental consent and after examination before a judge. These provisions aroused almost total opposition among Métis and French Canadians in the legislature. This bill, they claimed, would assist children in disposing of their birthright, open the door to fraud, and consequently work a great injustice upon the Métis. [22] The bill that did pass under the same name was amended so that only children of the full age of eighteen could sell their land and then only with the consent of both parents and upon examination before a judge of the Court of Queen’s Bench. [23] This act, while it made provision for the alienation of lands and allowed Métis children of the age of eighteen to sell their land, did represent a significant modification to the original proposal.
The type of legislation surveyed above, while it represented a steady erosion of the protection offered to the Métis in the ‘Half-breed Land Protection Act,’ did retain some degree of protection for the Métis against the efforts to eliminate all of it. Block voting by the English and French Métis effectively controlled the legislature to minimize the victimization of the Métis until 1879. After 1874, increasing Métis dissatisfaction with the method of the Métis land grant, increasing pressure from Canadians to gain a dominant political status, and profound economic and social changes altered the voting behaviour of the English Métis in the Manitoba Legislature.
The English Métis members of the legislature had begun participation in government on a “progressive” note, often voting against the French Métis, but by 1874 had been forced as a class into a defensive position to protect their traditional rights and values. In trying to protect these rights, English and French Métis thereafter voted together on all issues that threatened traditional rights and their land. [24] After the government crisis of 1879 and the following election, the Métis lost all political power in the legislature and with it any power they might have retained for protection of their land rights.
In 1878 the administration headed by John Norquay was re-elected with a majority consisting of a coalition of French Canadian representatives, French and English Métis, and some old settlers and moderate English representatives. The assembly met in early 1879 but adjourned so that Norquay and Joseph Royal could travel to Ottawa to negotiate a better financial arrangement for the province. During Norquay’s absence a long simmering hostility between the French Métis and the French Canadians erupted. A number of French Métis led by Charles Nolin were determined to bring down the Norquay Government and replace the French Canadian members in the cabinet with French Métis. This coup was quickly diffused by Joseph Royal, the most prominent French politician in Manitoba and second minister in the cabinet, who then took advantage of the French Métis discontent and set about to defeat the present ministry and create a new cabinet with himself as Premier. This attempted coup failed when the English members endorsed Norquay, who then replaced the French members in the cabinet with English representatives. This crisis marked the political defeat of the Métis. In the following months legislation was enacted that provided for electoral redistribution, wiping out many traditionally Métis strong-holds. In the election that followed, Ontario settlers dominated the legislature, depriving the Métis of what should have been three more years of political control—years in which they not only lost much of their land, but were pushed to the periphery of the new society. By the end of 1879 the coalition of the French, the Métis and old settlers was no longer a part of the political scene. [25]
A second type of legislation that affected Métis land included regulations governing the practice and procedure for the disposition of real estate of infants. This legislation became crucial since all Métis children had been granted a portion of the 1.4 million acres provided for in the Manitoba Act. When one considers the approximately 75% dispossession of Métis infant lands through the courts, [26] questions as to the morality and/or legality of the legislation or its implementation arise. To understand or judge the practice that sprang up after the first sales of infant lands through the court in 1878, it is necessary to review the statutes and regulations in force.
Figure 1. Chronology of Provincial Legislation Dealing with Métis Land | |||||
Election Dates |
1870 |
1874 |
1878 |
1879 |
1883 |
No. of Old Settlers in the legislature |
2 of 24 |
2 of 24 |
2 of 24 |
1 of 24 |
1 of 30 |
No. of French Canadians in the legislature |
5 of 24 |
6 of 24 |
3 of 24 |
3 of 24 |
3 of 30 |
No. of Métis in the legislature |
11 of 24 |
9 of 24 |
9 of 24 |
4 of 24 |
3 of 30 |
Legislation pertaining to Métis land |
Half-breed Land Protection Act (1873) |
Act to enable Half-breed Children to convey their land (1878) |
No legislation |
An Act to amend the Act enabling Half-breed Children to convey their land (1879) |
An Act to explain the Half-breed Land Protection Act (1883) |
The first act that dealt with this question was section 1 of the ‘Court of Queen’s Bench Act’ of 1874 which put into effect in Manitoba the law of England concerning practice and procedure as to the dealings of the courts with the lands and estates of infants. [27] Infants in this case were anyone under the age of twenty-one. This act was, in effect, only a quieting titles act; it was not held to confer any new power to order a sale, but would only enable the court to make a sale in a case where it had jurisdiction to order a sale. [28] The same act in section 8 gave the judges of the Court of Queen’s Bench authority to make general orders or rules expedient for the settling of forms, practice and procedure of the court. Under the authority of this section, on 10 February 1875 Chief Justice Wood and the judges of the Court made and promulgated certain general orders as to procedure. One of these, General Order number 13, expressly adopted the General Orders of the Court of Chancery for Ontario, numbers 517 to 537, of which 527 to 536 dealt explicitly with infant lands. [29] These orders adopted a detailed procedure and established conditions under which infant lands could be sold through the court so as to protect the infants’ interests. Some of these conditions were: that on petition for sale by the guardians of the infants, the nature and value of the land and the circumstances of the infant which justified the sale had to be stated; that the relief desired had to be stated specifically, as did the scheme proposed for the appropriation of the proceeds; and that the sale had to be in the interest of the infant, whether for his/her maintenance or education. The child was to appear before a judge in chambers and if above seven years of age examined alone upon the matter of the petition and his consent. Witnesses also had to be produced before the judge or master and examined as to the petition. Upon this petition the court could either grant the relief asked for, or order such further evidence as the case required. These conditions were applied to all petitions for sales of infant lands and by order of the court became law of the land and binding on all judges.
When the ‘Infant Estates Act,’ also drawn up by Chief Justice Wood, was passed in 1878, the court was given a wider jurisdiction to order sales or other dispositions, to which the Orders of 1875 were in turn immediately applicable. The only change this act made in the procedure established in 1875 was in section 22, which dispensed with the necessity of introducing the infant before the court. [30]
These orders and legislation had by 1878 established a procedure which treated applications for the disposition of infant lands with utmost jealousy: the courts would refuse any sale except on fullest information of all the circumstances and were to take every precaution against the possibility of being misled. The interest of the infant was to be the only consideration. The actual practice that sprang up under these conditions was initiated and set by the Chief justice and followed by the other judges subsequently admitted to the Bench. After 1878 sales of infant lands numbered in the thousands, with most of them passing through Chief Justice Wood.
In making these post 1878 orders for sales, the judges dispensed with most of the safeguards provided for in the terms of the act and General Orders of 1875 for the protection of the infant. Orders for the sale were made on petitions presented in the names of the parents but drawn up by the purchaser or his attorney. These petitions contained almost no information as to the circumstances of the infant or estate, and were invariably on almost identical printed forms. There was usually no information about the necessity of money for support of the infant in order that the court might form an opinion on the expediency of the sale, but only bald statements of opinion that the sale was expedient. The signatures of the parents and child were in most cases indicated with a mark on the document, demonstrating that they were wholly illiterate and thus incapable of reading what was contained in the documents. Orders were presented to the judges in bulk, some-times as many as twenty-five at a time, and passed without examination. [31] In the case of the children of Joseph Carriere, whose petitions were signed by Joseph Carriere and witnessed by R. P. Wood and Napoleon Bonneau, the sale was made in the home of Bonneau and the document was “passed” through the court at a later date. It is interesting to note that R. P. Wood, the son of Chief Justice Wood, though under eighteen years of age, was employed by the law firm of A. W. Ross to purchase “minor claims.” Napoleon Bonneau was similarly in the employ of Ross and had been making a living for the preceding eight years buying Métis claims. The sale becomes even more suspect when one realizes that neither of the Carriere children nor their parents had seen the land, that the price was set by Bonneau, that neither of the children was in dire need and both were going to school. Bonneau, who could not even read himself, was the one who explained what was in the petition to the parents and children, and no bond was issued setting out what was to be done with the money.
According to evidence presented to the Commission of Inquiry, Chief Justice Wood, on passing these claims, did not even look at the papers. [32] Practice in the courts, according to one legal opinion of the day, amounted
to no more than a request made by the speculating purchaser and the stupid and improvident and illiterate parent of the infant that the court will step in and remove the protection which the law wisely affords to the young and depriving the latter of his property, divide it between the speculator and the parent, and the court has habitually done what was asked and made orders for the sale of infant lands at the price offered by the purchaser without further inquiry, empowering the parent to convey the lands to the purchaser. [33]
If this practice was not wholly illegal, it was at least irregular enough to be challenged in court.
While there was sufficient legislation by the end of 1878 to protect the interests of Métis children, it was consistently ignored by the legal profession and the court. After the government crisis of 1879 and the consequent loss of Métis political power, even recourse to the courts for redress in the matter was ruled out in almost all cases. Concern for Métis land rights was all but dead. Legislation removing most of the protection and legal safeguards for Métis land rights was passed in the legislature without debate. A commission appointed in 1881 to investigate the administration of justice in regard to infant lands was more concerned with closing any loopholes that might cause litigation than in rendering justice to the Métis.
As early as 1879 an amendment to the ‘Infant Estates Act’ [34] provided for payment of monies from infant land sales directly to the father. Until this time money was still, to some extent, invested in court for the infant. While this amendment did not relieve the judges of their duty to see that a proper case was made out before money was expended, now, without inquiry and information, orders were habitually made for payment to the parent for the whole of the purchase money, without providing a scheme of direction as to the manner of application. [35] As long as money had still been paid into the court, it had had the effect of slowing sales, for parents were not as eager to sell if no money was immediately available. This new practice continued until 1880, when the judges, realizing that the irregularities of the sales through the court opened the way for litigation, agreed that all further applications for sales would be refused. Chief Justice Wood, under whom the practice had originated, was well aware of the illegality of these orders and even admitted that when he passed claims in court he would often tell the purchaser that the claims were subject to being declared illegal. [36]
After the agreement not to pass any more orders for sale, few if any were made until the passage of ‘An Act Respecting Half Breed Lands and Quieting Certain Titles Thereto’ in May of 1881. This astounding piece of retroactive legislation declared every order made or to be made by the Court of Queen’s Bench, or by any judge thereof, for the sale of infant lands to be valid. Further, all deeds, powers of attorney and agreements respecting lands made or here-after made by a child, were deemed to have always been executed as if the child had a full and absolute estate. This act, at one blow, wiped out many of the land rights that should have been accorded the Métis along with Métis recourse to the courts to recover land illegally bought from them. It is significant that a week before the bill was given assent, a letter to the editor of the Manitoba Free Press from the Law Students’ Society of Manitoba declared that at a recent meeting they had resolved “that the assignment of the right of a half-breed child of his or her share of the 1.4 million acres of land set apart for such children by the Statutes of the Dominion made by the said child between the passing of said act and the issue of patent to him or her for such a share is voidable.” The main point, the letter went on to say, was that all local acts passed in the interim and before the issue of patents were voidable at law and equity. The provincial government, in passing acts allowing assignments and empowering the sale of land in equity before the issue of patents, was acting contrary to common law, and in the absence of any Dominion Statute allowing assignments, these acts were in direct opposition to Dominion Law annuating Provincial Acts. [37] The response of the Manitoba Legislature was simply to pass another act legalizing all that had been done. This bill was passed through the legislature in three short readings with no reported debate. The federal government, despite the questionable constitutionality of the previous acts and the obvious disregard for Métis land rights, allowed this act to stand.
This quieting of titles in effect endorsed the illegality in the courts and declared it the correct procedure. Heber Archibald, a lawyer and the author of the 1879 Infant Estates amendment and himself involved in the purchase of children’s allotments, testified that “it was the opinion of nine out of ten members of the profession that it was an improvident grant to the Half Breeds—in the first place—that it would bring them more harm than good—and that the sooner the whole of these lands was settled the better.” [38] He went on to say that while he knew the law bearing on the rights of infants, the sale of these lands had been to the general advantage of the country. Chief Justice Wood concurred in this by stating that Métis infant claims had never been regarded by the public and the legal profession as ‘Infant Estates.’ [39]
On 17 October 1881, with justice Miller in chambers, and as such the only proper judge to whom one should apply for order according to testimony at the commission of inquiry, E. M. Wood, a solicitor and son of Chief justice Wood, applied for and obtained from the Chief justice no fewer than ten orders in the “usual manner.” This was done in spite of the agreement of the judges not to pass such orders and despite the fact that the Orders of the Court of 1875 had been re-promulgated on 29 August 1881. These last sales through the court had been initiated in early 1881 when Robert Gerrie, a merchant of Winnipeg, had gone to Norquay and asked if any bill was to be put through to throw Métis land open. Norquay had answered that he should go out and buy, and he would see that the purchases were put through. “He was the Premier, and it was the law, he said, that [they] should pass.” When Gerrie was asked during the commission hearings if he were enlisting the whole government in his enterprise he replied, “Of course.” [40]
E. M. Wood
Source: Archives of Manitoba, Personalities - Wood EM 1, 1929, N2201.
The collusion between the Manitoba government, the judges of the Court of Queen’s Bench, and land speculators, is further illustrated in the operation of the Wood family. Reginald Wood, the son of the Chief justice, worked as an agent of A. W. Ross, buying up Métis land, often doing it in the name of M. B. Wood, his brother, who worked in the Dominion Land Office. At times M. B. Wood also gave Reginald the money to buy the land. Infant land sales were also passed through the Chief justice by another son E. M. Wood. All disclaimed any personal interest in these transactions. [41]
Edmund Burke Wood, who came to Manitoba in 1874 after a legal and political career in Ontario and an appointment to the Chief justiceship in Manitoba, was hardly the figure to give the Métis confidence in the administration of justice in Manitoba. Frequently intoxicated in public, constantly in financial difficulty, and at one point indebted to John Christian Schultz, Wood was not always above reproach. In 1881 a petition was introduced into the House of Commons detailing charges against Chief justice Wood which included manipulating the jury in the Lepine trial over the murder of Thomas Scott, taking an active part in politics, and publicly stating that he had no confidence in the oath of a French native of the province. [42] Wood also initiated the practice of lending back to the purchaser money paid into the court for the benefit of the infants. Approximately one sixth of the money paid into the court for the benefit of infants was in this way immediately lent back to the speculators. [43] This practice took place at the same time that Wood was refusing to pay interest out of court to the infants, despite the fact that this was common practice in Ontario. [44]
On 25 October 1881, Justice Miller, discovering that Chief justice Wood had passed more irregular orders, brought it to the attention of the Attorney General. The Attorney General in turn ordered a commission of inquiry to investigate the administration of justice in Manitoba regarding infant lands. The hearings, held from 9 November to 5 December 1881, were conducted by T. A. Bernier (farmer, lawyer, Superintendent of Education and Registrar of the University of Manitoba), Fredrick McKenzie (lawyer and later appointed Manitoba’s first Queen’s Counsel) and S. Blanchard (another lawyer). This commission turned up a mass of incriminating evidence, but at no time was it regarded as a vehicle of remedying the errors of the court or enquiring into the behaviour of any particular judge. It was regarded by the commissioners as an inquiry to determine what irregularities had taken place so as to inform legislation, if needed, to prevent litigation. E. M. Wood, counsel for the Chief Justice, was present at all hearings, never allowing the commission to attribute any improprieties to the Chief justice. When T. B. Robertson, counsel for the Attorney General’s Department, attempted to present a summation tying the evidence together, the commissioners ruled that the commission did not have the authority to hear the report. [45]
During the course of the inquiry, Chief justice Wood defended the practice of the court by arguing that the Orders passed in 1875 governing court procedures were never in force because at the time there was no statute under which they could be made. This opinion was refuted by the testimony of Justice Dubuc, Justice Miller and T. B. Robertson, who claimed that the Orders, having been made under the authority of the ‘Court of Queen’s Bench Act,’ were law and therefore binding on all judges.
The reaction of Winnipeg newspapers to the findings of the inquiry was almost one of indifference.
While all papers printed parts of the proceedings, only the Winnipeg Daily Sun acknowledged the illegality of the conveyances, stating that it was for the courts to right the situation and restore the land that had been plundered. The Daily Sun criticized Premier Norquay’s action in legalizing these “swindles” in which he was to share in the profits. It was, they stated, for the federal government to deal with the guardianship of Métis infants. [46] The other papers, particularly the Daily Times and the Manitoba Free Press, ignored the findings of the inquiry and defended the Chief justice on principle. The Daily Times found it extraordinary that the integrity of the Chief Justice was held in question, and doubted the legality of the commission. [47] In the opinion of the Free Press, the commission had been brought about by Justice Miller who wanted the position of Chief Justice for himself. Miller, they claimed, had been promised the position after Wood retired and the inquiry was simply an attempt to oust Wood. [48] In this manner Métis legal and land rights were dismissed and forgotten.
The inquiry, commissioned to find out whether any more legislation was necessary to secure lands already sold, had served its purpose. Subsequent legislation relating to Métis land consisted mainly of a mopping-up operation legalizing past sales not covered by the quieting of titles act of 1881. In 1883 the passage of another act provided that illegitimate children, or children without living parents above the age of eighteen, did not need the consent of a guardian or need to be examined before a judge, and that such an instrument would be deemed to have always been in force. [49] The following year the legislature declared all decrees or orders on the equity side of the Court of Queen’s Bench, issued up to that point by the Prothonotary, Registrar, or Master in Equity, to be valid and to have been and to be legally binding. [50] This bill was passed to correct certain irregularities in the investment of infant monies on the equity side of the Court of Queen’s Bench. These irregularities had been investigated in February of 1883 by former Justice Miller. The consolidated ‘Half Breed Land Act’ was amended in the same year, declaring that any examination or certificates taken outside the Province of Manitoba before a judge were to be valid. [51] This statute facilitated the sale and alienation of the land of those Métis who had left the province.
Joseph N. Charette and farm buildings, St. Norbert, circa 1890
Source: Archives of Manitoba
The capstone of all this retroactive legislation regarding Métis land was assented to on 2 May 1885. This bill, ‘An Act Relating to the Titles of Half Breed Lands,’ declared that all transactions involving infant Métis lands patented, allotted or to be allotted, were hereby declared legal and binding, notwithstanding any defect, irregularity or omission in the carrying out of the sale. It also declared that vesting orders, decrees, and the recitals and conveyances of the Métis were to be accepted as conclusive evidence against all parties in court. Another section of the same act declared that in all sales, alienations, conveyances and half-breed assignments made or intended to be made under sections 3, 4, and 5 of Chapter 42 of the Consolidated Statutes of Manitoba, including all powers of attorney and sales made by them, the proper parties had joined therein and that the child had been eighteen. [52] This piece of legislation virtually eliminated recourse to the courts and throughout the 1880s sales of Métis land continued under these conditions.
In so far as this study reflects upon the role of the federal government in the administration of the Manitoba Act, one can conclude that if the dispossession of the Métis land was not a part of a conscious design on the part of the federal government, it was certainly facilitated by irresponsible neglect. No attempt was made to protect the legal rights of the Métis. However, the alienation of Métis land in Manitoba outlined above possesses a distinctly provincial chronology. Until 1879, provincial legislation in most respects tried to protect the land rights of the Métis. The ‘Half-breed Land Protection Act,’ although radically modified in 1877, was retained in the face of opposition of Ontario settlers. Similarly, the lands of infant Métis were well protected by legislation and court regulations. This was in no small part due to the fact that the French and English Métis controlled the balance of power in the legislature until 1879.
The ministerial crisis of 1879 and the following election in the same year wiped out all Métis political power. The legislation relating to Métis land from that time on reflected a total disregard for Métis rights. It is significant that the largest number of alienations of children’s claims occurred in 1880. [53] Retroactive legislation after 1880 ignored Métis legal rights and declared all illegal sales valid. It is not surprising that, having lost their land, in many cases illegally, and having been prevented from taking legal action to retrieve it, many Métis left Manitoba. [54] The upsurge in the alienation of children’s claims in the years between 1884 and 1886 can also be related to Manitoba legislation of 1884 which allowed sales made outside Manitoba to be legally binding.
However, while the Métis controlled political power in Manitoba until 1879, they had little control over the courts; the judicial system was instead almost completely controlled by settlers from central Canada. In the courts Métis were accorded few legal rights. Here, as in the political context, the Métis Land Question fits into a wider context, for Manitoba was in the process of being transformed from a non-industrial “pre-modern” society to an industrial capitalist or “modern” one. [55] The Métis land grant, regarded by the courts, judiciary, and the incoming Ontario population as improvident and contrary to modern development, had to be appropriated legally or illegally.
Chief Justice Edmund Burke Wood
Source: Archives of Manitoba
1. The term Métis used here encompasses both the buffalo hunting French Métis and the English and Scottish Half-breeds. In distinguishing between the two I have used the terms ‘English Métis’ and ‘French Métis.’ While the term ‘Halfbreed’ is perhaps more accurate than ‘English Métis’ in an earlier 19th century historical sense, the designation English Métis—French Métis is for the purposes of this study and the time period studied (1870-1880) more useful. Both Métis and Halfbreed were recognized as a single entity (of mixed Indian and Euro-Canadian Ancestry) by the Canadian Government in the terms of the land grants, and in the course of the 1870s with the delays in allotting the grants and other difficulties in securing traditional rights, both Métis and Halfbreed began to view themselves as a single class. Not only did they agitate as a group for a quick settlement of their land grant, protection from the encroachment of Ontario settlers and their traditional hay privilege, but after 1874 they voted as a block in the legislature on all issues dealing with land and other traditional rights. This designation also takes into consideration the fact that the term ‘Halfbreed’ is frequently pejorative.
2. D. N. Sprague, “Government Lawlessness in the Administration of Manitoba Land Claims, 1870-1887,” Manitoba Law Journal, Vol. 10 No. 4 (1980). Table 1, page 87.
5. Manitoban, 15 February 1873.
6. Douglas Kemp, The Department of the Interior 1873-1883, (M.A. Thesis, University of Manitoba, 1948), pages 78-81; and “Land Grants under the Manitoba Act,” HSSM Transactions Series III number 9 (1954).
7. D. N. Sprague, op. cit. Also see D. N. Sprague, “The Manitoba Land Question 1870-1882,” Journal of Canadian Studies Vol. 15 No. 3 (1980).
8. Douglas Kemp, “Land Grants ...”, page 35.
9. The actual drawing of lots did not take place at this time and eligibility in this land grant was to change a number of times with some significance. For a more detailed analysis see Kemp or Sprague.
10. Department of the Interior, Order in Council, 25 April 1871. When the final allotment was made in 1876 this had evolved so that Métis children in Manitoba were given an outright grant of 240 acres of land while Métis heads of family were granted 160 acres in scrip. This scrip entitled the Métis to attend a Dominion Land Office and locate his scrip on any land open to homestead. A patent would then be issued. Scrip, however, was much more easily alienated or transferred than a grant of land. No assignment was needed to transfer scrip and the bearer was acknowledged to be the owner.
11. Manitoban, 15 February 1873.
12. Manitoban, 22 February 1873.
13. Statutes of Manitoba, 1873, 37 Vict., Chapter 44.
14. Manitoban, 15 March 1873, Reports of debate in the Legislature.
15. W. E. Hodgins, Dominion and Provincial Legislation 1867-1895 (Ottawa: 1896); Lt. Governor Morris to the Sec. of State, 15 March 1873. Also Report of the Minister of Justice, 27 February 1874, page 779.
16. Manitoba Free Press, 15 February 1874; and Chief Justice Wood’s Report to the Commission Investigating the Administration of Justice in Manitoba 1881, Unpublished Sessional Papers of Manitoba 1881, (PAM).
17. Statutes of Manitoba, 1875, 38 Vict., Chapter 37.
18. Manitoba Free Press, 27 April 1875.
19. Hodgins, op. cit.; Report of the Minister of Justice, 7 October 1876, page 804.
20. Statutes of Manitoba, 1877, 40 Vict., Chapter 5.
21. Hodgins; op. cit.; Report of the Minister of Justice, 31 May 1878, page 822.
22. Manitoba Free Press, 4 February 1878.
23. Statutes of Manitoba, 1878, 41 Vict., Chapter 20.
24. Based on an analysis of roll call votes and composition of the Manitoba Legislature, 1870-1882.
25. For more on the crisis of 1879 see Gerald Friesen, “Homeland to Hinterland: Political Transition in Manitoba 1870-79,” The Canadian Historical Association Historical Papers, 1979.
26. Sprague, op. cit., Table 1, page 87.
27. Statutes of Manitoba, 1874, 38 Vict., Chapter 12.
28. Commission of Inquiry into the Administration of Justice as to Infant Lands and Estates, 20 December 1881, Unpublished Manitoba Sessional Papers on microfilm at the Archives of Manitoba.
29. General Orders of the Court of Chancery for Ontario made 30 June 1853: Ord. 37: Reported in the Commission of Inquiry 1881.
30. Statutes of Manitoba, 1878, 41 Vict., Chapter 7.
31. Commission of Inquiry, General Testimony.
32. Ibid., Testimony of Napoleon Bonneau, Joseph Carriere and children, 10 November 1881.
33. Ibid., Report of T. B. Robertson.
34. Statutes of Manitoba, 1879, 42 Vict., Chapter 27.
35. Commission of Inquiry, Report of Robertson.
36. Ibid., Testimony of Justice Dubuc, 2 December 1881; Testimony of Justice Miller, 3 December 1881; Testimony of Chief Justice Wood, 29 November 1881.
37. Manitoba Free Press, 20 May 1881.
38. Commission of Inquiry, Testimony of Heber Archibald, 23 November 1881.
39. Ibid., Testimony of Chief Justice Wood, 29 November 1881.
40. Ibid., Testimony of Robert Gerrie, 21 November 1881.
42. Roy St. George Stubbs, “Hon. Edmund Burke Wood,” HSSM Transactions, Series III No. 13 (1958).
43. Commission of Inquiry, Testimony of A. Macdonald, 23 November 1881.
44. Ibid., Testimony of Heber Archibald, 28 November 1881.
45. Ibid., Commissioner’s closing comments, 5 December 1881.
46. Winnipeg Daily Sun, 21 November 1881.
47. Winnipeg Daily Times, 10 November 1881.
48. Manitoba Free Press, 17 November 1881.
49. Statutes of Manitoba, 1883, 46 and 47 Vict., Chapter 29.
50. Statutes of Manitoba, 1884, 47 Vict., Chapter 8.
51. Statutes of Manitoba, 1884, 47 Vict., Chapter 24.
52. Statutes of Manitoba, 1885, 48 Vict., Chapter 30.
53. D. N. Sprague, op. cit., Table 1.
55. Gerald Friesen, op. cit., page 47.
Page revised: 21 February 2015
