Manitoba Métis Federation Inc. v. Canada (Attorney General) et al.,

• Jurisdiction: Manitoba
• Judge: MacInnes, J.
• Neutral Citation: 2007 MBQB 293
• Citation: (2007), 223 Man.R.(2d) 42 (QB),2007 MBQB 293,[2008] 4 WWR 402,[2007] CarswellMan 500,[2007] MJ No 448 (QL),[2008] 2 CNLR 52,223 Man R (2d) 42,223 ManR(2d) 42,[2007] M.J. No 448 (QL),223 Man.R.(2d) 42,(2007), 223 ManR(2d) 42 (QB)
• Date: 07 December 2007
• Court: Court of Queen's Bench of Manitoba (Canada)

Métis Federation Inc. v. Can. (A.G.) (2007), 223 Man.R.(2d) 42 (QB)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. DE.036

Manitoba Metis Federation Inc., Yvon Dumont, Billyjo de la Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr., Freda Lundmark, Miles Allaire, Celia Klassen, Alma Belhumeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson (plaintiffs) v. Attorney General of Canada and Attorney General of Manitoba (defendants)

(CI 81-01-01010; 2007 MBQB 293)

Indexed As: Manitoba Métis Federation Inc. v. Canada (Attorney General) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

MacInnes, J.

December 7, 2007.

Summary:

The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870, upon Manitoba's entry into the Canadian Confederation. The individual plaintiffs alleged they were descendants of persons referred to in the Manitoba Act as "half-breeds" entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act. The plaintiffs sued the defendants, the Attorneys General of Canada and Manitoba, for declaratory relief, hoping that such relief would assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong. The plaintiffs sought declarations: (1) that certain enactments (both statutes and orders-in-council) were ultra vires the Parliament of Canada and the Legislature of Manitoba, respectively, or were otherwise unconstitutional; (2) that Canada failed to fulfill its obligations, properly or at all, to the Métis under ss. 31 and 32 of the Manitoba Act, and pursuant to the undertakings given by the Crown; (3) that Manitoba, by enacting certain legislation and by imposing taxes on lands referred to in s. 31 of the Manitoba Act prior to the grant of those lands, unconstitutionally interfered with the fulfilment of the obligations under s. 31 of the Act; and (4) that there was a treaty made in 1870 between the Crown in right of Canada and the Provisional Government and people of Red River.

The Manitoba Court of Queen's Bench refused to grant any of the declarations sought by the plaintiffs and dismissed their claims in their entirety. The court held inter alia: (1) that the MMF lacked standing while the 17 individual plaintiffs had the necessary standing to pursue the action; (2) the plaintiffs' action having been commenced in 1981 was statute barred by the Limitation of Actions Act where the time frame for the material events was between late 1869 and 1890; (3) the doctrine of laches and acquiescence applied and were a complete defence to the plaintiffs' claim; (4) there had been no treaty or agreement negotiated respecting these issues, rather there was an Act of Parliament, the Manitoba Act, a constitutional document which had to be interpreted as such; (5) ss. 31 and 32 of the Act were not in the nature of minority rights legislation; (6) when the Act was enacted, the Métis did not have aboriginal title to the land; (7) the Métis were not Indians; (8) there was no fiduciary relationship between Canada and the Métis, nor was the doctrine of honour of the Crown implicated, rather, Canada owed a public law duty to those entitled under ss. 31 and 32 of the Act; (9) Canada had a broad discretion with respect to the implementation of ss. 31 and 32 of the Act and there was no evidence of misconduct or bad faith in the implementation of those sections; and (10) the enactments alleged to be unconstitutional by the plaintiffs were not ultra vires.

Constitutional Law - Topic 1201

Manitoba Act, 1870 - General - The Manitoba Court of Queen's Bench outlined the history of the enactment of the Manitoba Act, 1870, whereby Manitoba became a Province and joined the Dominion of Canada - See paragraphs 1 to 343.

Constitutional Law - Topic 1201

Manitoba Act, 1870 - General - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870 upon Manitoba's entry into the Canadian Confederation - The individual plaintiffs alleged they were descendants of persons referred to in the Manitoba Act as "half-breeds" entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued the defendants, the Attorneys General of Canada and Manitoba, for declaratory relief, hoping that such relief would assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong - The plaintiffs asserted that historical negotiations between the Red River delegates, Sir John A. Macdonald and Sir George Étienne Cartier, resulted in a treaty agreement rather than just simply an Act of Parliament (i.e., the Manitoba Act) - The Manitoba Court of Queen's Bench held that the product of the discussions or negotiations, whatever descriptor one preferred, was neither a treaty nor an agreement with aboriginals - Rather it was an Act of Parliament recognized as a constitutional document - See paragraphs 461 to 510.

Constitutional Law - Topic 1202

Manitoba Act, 1870 - Interpretation - The Manitoba Court of Queen's Bench discussed how the Manitoba Act, 1870, an Act of Parliament and a constitutional document, should be interpreted - In particular, the court discussed the interpretation of ss. 31 and 32 dealing with land issues involving Métis peoples - The court stated that in interpreting the provisions of the Act that impacted the aboriginal rights of the Métis, the integrity of the Crown had to be considered - The court however held that the Nowegijick principle espoused by the Supreme Court of Canada that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians, did not apply in the circumstances of this case - The court stated also that ss. 31 and 32 were not intended by Parliament to be minority rights provisions and therefore the principles of interpretation regarding protection of minorities did not apply - Further, the court stated that the Hansard debates regarding the Manitoba Act, while helpful in providing historical context, should not be given much weight in interpreting the meaning of the Act or any of its sections - The court interpreted ss. 31 and 32 accordingly - See paragraphs 511 to 556 and 647 to 875.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) sought declaratory relief respecting s. 31 - The Manitoba Court of Queen's Bench held that the Métis, including their children to whom the s. 31 grants were made, did not hold in 1870, or at anytime prior, aboriginal title to the lands which were to become Manitoba and serve as the source for the s. 31 grants - Nor were the Métis of Manitoba, Indians - The court stated that while the Métis were aboriginal peoples within s. 35 of the Constitution Act, there was no fiduciary relationship between the Métis and Canada or duty owed by Canada to the Métis in respect of the land which became the source of the s. 31 grants - The court determined that the honour of the Crown had no relevance to the events which concluded with the passage of the Act or to its interpretation or implementation - The court stated that the Crown's duty here was a public law duty - See paragraphs 557 to 661.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) claimed that various enactments passed by the Province of Manitoba (see list in paragraph 721) relating to and facilitating disposition by "half-breed" children of s. 31 lands were ultra vires in that they: (a) constituted amendments or alterations to the Manitoba Act contrary to s. 6 of the Constitution Act, 1871, and were otherwise unconstitutional; (b) trenched on federal jurisdiction under s. 91(1) of the Constitution Act, 1867; and (c) trenched on federal jurisdiction under s. 91(24) of the Constitution Act, 1867 - The Manitoba Court of Queen's Bench held that there was no basis for a finding of unconstitutionality respecting the impugned Manitoba legislation - Rather such legislation fell under provincial jurisdiction either under s. 92(13) (property and civil rights) or in the case of two enactments, s. 92(14) (the administration of justice) - The court stated, inter alia, that the impugned legislation, in pith and substance, did not amend or alter the Manitoba Act - See paragraphs 687 to 809.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that various enactments passed by the Province of Manitoba (see list in paragraph 721) relating to and facilitating disposition by "half-breed" children of s. 31 lands were ultra vires - The plaintiffs submitted that the Manitoba legislation was unconstitutional by reason of s. 91(24) of the Constitution Act, 1867 - The Manitoba Court of Queen's Bench held that the Métis were not Indians within the meaning of s. 92(24) of the Constitution Act, 1867, and the land in question was not land reserved for Indians within the meaning of that section - See paragraphs 795 to 799.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Section 32 provided for the quieting of titles to land in the province - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that various federal enactments (listed in paragraphs 811-813) relating to and facilitating disposition by "half-breed" children of s. 31 lands and respecting the quieting of titles provisions in s. 32 were unconstitutional - The Manitoba Court of Queen's Bench held that with two exceptions acknowledged by Canada, none of the impugned federal enactments were contrary to ss. 31 and 32 of the Manitoba Act - Rather, they were passed as contemplated by the legislation for the purpose of administering and implementing that which ss. 31 and 32 provided - Also the enactments that substituted scrip for grants of land were authorized under s. 33 of the Manitoba Act - See paragraphs 810 to 875.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that Manitoba legislation relating to sales of the allotments under s. 31 were in conflict with valid federal Orders-in-Council and therefore inoperative to that extent on the basis of the doctrine of paramountcy - The Manitoba Court of Queen's Bench held that the impugned provincial legislation was intra vires the Province - Further, there was no functional inconsistency between the federal enactments and the provincial legislation - Simultaneous compliance was easily possible - Nor did Manitoba's legislation frustrate the federal objective in enacting the orders-in-council - See paragraphs 876 to 908.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that Canada's fiduciary duty to the Métis children imposed a duty on Canada to disallow any provincial legislation which enabled sales of s. 31 lands prior to grant or which singled out Métis children to facilitate their ability to sell their land before they reached the age of majority - The Manitoba Court of Queen's Bench held that there was no merit to the plaintiffs' claim - There was no fiduciary duty owed by Canada to the Métis including the children respecting the s. 31 land grant - In any event, the law was clear that the exercise of the power of reservation or disallowance was wholly in the unfettered discretion of the Governor General-in-Council and was not subject to review or comment by the court - As a matter of law, there could be no actionable duty owed by the Governor General in the exercise of the discretion whether to invoke or not invoke the power of disallowance - It therefore could not be a basis for plaintiffs' action - See paragraphs 908 to 923.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that Canada had not administered the s. 31 grants in such a way as to create and/or preserve a perpetual Métis land base - The Manitoba Court of Queen's Bench held that the plaintiffs' position was fundamentally flawed - The court agreed with Canada that that there was no intention or obligation under the Manitoba Act to create and/or preserve a Métis land base - Rather, the Act was an essential piece of legislation in building the nation of Canada - Canada's intention in acquiring Rupert's Land and the Northwestern Territory was to enable Canada to create a country from sea to sea and the Act became the instrument through which the inhabitants of Rupert's Land, other than Indians, would and did acquire full citizenship within the Canadian Confederation - The purpose of s. 31 was not to create a Métis land base within Manitoba, but to provide a benefit to the Métis by way of grant to the children, the result being that each Métis child in Manitoba would have the opportunity to own and settle upon a piece of land within the new province if he or she so chose - See paragraphs 924 to 928.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that Canada had not administered the s. 31 grants in such a way as to create and/or preserve a Métis land base - The Manitoba Court of Queen's Bench held that the purpose of s. 31 was not to create a perpetual Métis land base within Manitoba - Rather, following the passage of the Act and during administration of the s. 31 grant, it was made clear to Canada by the Manitoba legislature, the majority of whose members were either Métis or sympathizers of the Métis, that the land to be given under s. 31 was to be given absolutely to the recipients and could be held or disposed of as they wished - This view was expressed throughout the period during which implementation occurred - See paragraphs 929 to 932.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that by failing to impose conditions of settlement, Canada failed to administer the s. 31 grants in such a way as to create and/or preserve a Métis land base - The Manitoba Court of Queen's Bench held that s. 31 gave Canada a very broad discretion in administering the land grants - The court stated that "...  so long as Canada, in implementing the s. 31 grant complied with the language of the Act by giving the land for division amongst the children of the half-breed heads of families and did not act in bad faith in so doing, its conduct cannot be successfully challenged. Mistakes, even negligence, on the part of those responsible for implementation of the grant are not sufficient to successfully attack Canada's exercise of discretion in its implementation of the grant. A complaint that the administration or implementation of the grant or its outcome is unsatisfactory is not a justiciable complaint so long as what was done or not done was pursuant to the language of the Act and the bona fide exercise of discretion within the terms of the Act" - See paragraphs 929 to 944.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) claimed that the purpose of s. 31 was to ensure a perpetual Métis land base - The Manitoba Court of Queen's Bench held that this was not a possible interpretation from the section - The court noted that there were no limits set in the language of s. 31 as to what a recipient might do with his/her land - There was no specification whence the land was to be sourced and no time limit by which the grants had to be given - The language of s. 31 suggested land grants to children of half-breed heads of families to do with as they saw fit once received and the section as well clearly gave the Governor General-in-Council the authority and mandate to decide upon the method by which each recipient was to receive his/her share of the grant - As well, s. 31 did not restrict but rather contemplated changes in policy respecting administration of the grant as it made reference to regulations made from time to time - See paragraph 946.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) sought declaratory relief, complaining about the land selection - For example, the plaintiffs claimed that they did not receive first choice with regard to the land - The Manitoba Court of Queen's Bench held that there was never a commitment by Canada to provide first choice, nor was such a commitment reflected in the Act - To do so would have been impossible given the obligation to persons entitled to land under the quieting of titles provisions in s. 32 of the Act - The court noted however that the Métis were given significant input into the choice of the land from which the grant was to be made - See paragraphs 961 to 1000.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) complained that the allotment of the land by the use of a random lottery was contrary to an agreement reached between the provincial negotiators and the federal government which they asserted had provided for selection of land in family blocks - The Manitoba Court of Queen's Bench held that there was no such agreement - Further the lottery was not random throughout the province, rather it was random on a parish-by-parish basis so that while not necessarily contiguous to the parents' land, a child would get land in the same parish - It would have been impractical, given the size of the grant for each child (i.e., 240 acres) to have all of the children's grants contiguous to the land of the parents and to each other - Also the random draw gave every child in the parish an equal chance to receive the best parcel of land available within the parish - Further, there was little, if any, evidence of complaints about random selection from those present at the time - The court stated that the Act clearly did not provide for or require family blocks - See paragraphs 1001 to 1013.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of persons referred to in the Act as "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) sought declaratory relief, complaining about the provision of scrip in lieu of land to 993 of the children because the land grant was exhausted - The Manitoba Court of Queen's Bench noted that the entire 1,400,000 acres designated for the s. 31 grants, indeed somewhat more, was granted to the children but 993 went without - In lieu, those children received scrip to a value of $240.00 which was available for selection of land or for sale as the recipient chose - There was little, if any, complaint concerning the grant of supplementary scrip in lieu of land - The court concluded that s. 33 of the Act, which provided that "The Governor General-in-Council shall from time to time settle and appoint the mode and form of Grants of Land from the Crown, and any Order-in-Council for that purpose when published in the Canada Gazette, shall have the same force and effect as if it were a portion of this Act", provided Canada with the authority and discretion to provide scrip in lieu of land and in so acting, Canada was on-side the Act and exercising its discretion in a reasonable manner in the circumstances - See paragraphs 1014 to 1031.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 31 of the Act provided for grants of land in Manitoba to the children of "half-breed heads of families", which included the Métis people - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) (the plaintiffs) sought declaratory relief, complaining that Canada failed to prevent eligible s. 31 claimants from selling their lands before patent or before attaining the age of majority - That is, that Canada had a duty to ensure that there was no speculation in respect of the lands before grant - The Manitoba Court of Queen's Bench (MacInnes, J.) stated that "the practical reality in my view is that would have been impossible. The evidence discloses a variety of methods (to which I have earlier referred) used by people, including the Métis themselves, to enable sales of a grantee's interest before patent. While the plaintiffs claim that Canada had the ability to stop such sales, I am not convinced that Canada could have done so legally without bringing the issue under its criminal law powers, that is, making it a crime for people to sell or to buy. But, from a practical perspective, even that would not likely have put a stop to it." - See paragraphs 1032 to 1051.

Constitutional Law - Topic 1203

Manitoba Act, 1870 - Land grants to Métis children (s. 31) - [See Constitutional Law - Topic 2982 , Constitutional Law - Topic 2986 and Equity - Topic 2061 ].

Constitutional Law - Topic 1204

Manitoba Act, 1870 - Quieting of titles - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 32 of the Act provided rules respecting "the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them" - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) sought declaratory relief respecting s. 32 - The Manitoba Court of Queen's Bench stated that s. 32 was for the benefit of all settlers - Section 32 did not contain language the plain reading of which recognized or provided for the French Métis or the so-called "English half-breeds" - The court stated further that there was no evidence that Parliament intended by s. 32 to create a fiduciary relationship between Canada and the residents who fell within s. 32, nor any basis for the creation of a fiduciary responsibility between Canada and those residents - Canada had nothing more than a public law obligation under s. 32 - See paragraphs 662 to 686.

Constitutional Law - Topic 1204

Manitoba Act, 1870 - Quieting of titles - The Manitoba Act, 1870, was enacted to facilitate the creation of the Province of Manitoba and its admission into the Dominion of Canada - Section 32 of the Act provided rules respecting "the quieting of titles, and assuring to the settlers in the Province the peaceable possession of the lands now held by them" - Over 100 years later, the Manitoba Métis Federation Inc. and 17 individuals (Métis) sought declaratory relief, complaining of delay and the manner of implementation of s. 32 generally - The Manitoba Court of Queen's Bench held that the complaints advanced by the plaintiffs respecting the implementation of s. 32 were without merit in the circumstances of this case - There was no fiduciary duty owing and no implication of the honour of the Crown in respect of the s. 32 grant - The provisions of s. 32 did not apply to the Métis as Métis, but it applied to all settlers - Its purpose had nothing to do with the aboriginality of the Métis, but was simply to quiet titles and assure the retention of lands by all residents of Red River who had held such land prior to transfer - Canada complied with its statutory obligations under s. 32 of the Act - See paragraphs 1059 to 1215.

Constitutional Law - Topic 1204

Manitoba Act, 1870 - Quieting of titles - [See fourth Constitutional Law - Topic 1203 , Constitutional Law - Topic 2982 , Constitutional Law - Topic 2986 and Equity - Topic 2061 ].

Constitutional Law - Topic 2626

Determination of validity of statutes or Acts - Considerations - Government positions - The Manitoba Court of Queen's Bench, in considering the vires of certain provincial legislation, considered the fact that both the federal and provincial governments supported the legislation - See paragraphs 697 to 699.

Constitutional Law - Topic 2982

Determination of validity of statutes or Acts - Practice - Time for - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870, upon Manitoba's entry into the Canadian Confederation - The individual plaintiffs alleged they were descendants of persons referred to in the Manitoba Act as "half-breeds" entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued the defendants, the Attorneys General of Canada and Manitoba, for declaratory relief, hoping that such relief would assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong - The time frame material to the plaintiffs' action was approximately 1869 to 1890 - The Manitoba Court of Queen's Bench held that the plaintiffs' action should be dismissed as being barred by the Limitation of Actions Act - The court opined that if it was incorrect in that conclusion, then the only aspect of the plaintiffs' action that would not be statute barred was their request for a declaration as to whether the enactments in issue were ultra vires the Parliament of Canada or the Legislature of Manitoba - See paragraphs to 408 to 448.

Constitutional Law - Topic 2986

Determination of validity of statutes or Acts - Parties - Standing - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870 upon Manitoba's entry into the Canadian Confederation - The individual plaintiffs alleged they were descendants of persons referred to in the Manitoba Act as "half-breeds" entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - The plaintiffs sued the defendants, the Attorneys General of Canada and Manitoba, for declaratory relief, hoping that such relief would assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong - Standing of the MMF was in issue - The plaintiffs argued that the standing issue had been decided in prior cases in the MMF's favour and therefore Canada and Manitoba were issue estopped from challenging standing, and in any event, MMF had standing - The Manitoba Court of Queen's Bench rejected the issue estoppel argument, where the plaintiffs failed to establish that the same issue had been decided in the prior cases, and even if they had done so, the court would have exercised its discretion and not allowed the doctrine to prevail - Therefore, the court allowed Canada and Manitoba to reargue the standing issue and, having considered the argument, denied the MMF standing in the action - See paragraphs 344 to 407.

Constitutional Law - Topic 3301

Disallowance - General principles - [See sixth Constitutional Law - Topic 1203 ].

Constitutional Law - Topic 3501

Paramountcy of federal statutes - General principles - The Manitoba Court of Queen's Bench stated that two questions must be considered when a paramountcy issue was raised, namely: "(1) Can a person simultaneously comply with both provisions? and (2) Does the provincial legislation frustrate Parliament's purpose?" - See paragraph 883.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See fifth Constitutional Law - Topic 1203 ].

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - [See third Constitutional Law - Topic 1203 ].

Constitutional Law - Topic 6352

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - What constitutes lands reserved for Indians - [See third Constitutional Law - Topic 1203 ].

Constitutional Law - Topic 7226

Provincial jurisdiction (s. 92) - Property and civil rights - Land - Ownership - [See second Constitutional Law - Topic 1203 ].

Constitutional Law - Topic 7402

Provincial jurisdiction (s. 92) - Administration of justice (s. 92(14)) - General principles - Extent of power or subject matter - [See second Constitutional Law - Topic 1203 ].

Equity - Topic 2061

Equitable defences - Laches - General - The plaintiffs, the Manitoba Métis Federation Inc. (MMF) and 17 individuals, asserted that the Métis people of Manitoba suffered an historic injustice, namely, the loss of a land base which they were to have received under the Manitoba Act, 1870 upon Manitoba's entry into the Canadian Confederation - The individual plaintiffs alleged they were descendants of persons referred to in the Manitoba Act as "half-breeds" entitled to land pursuant to s. 31, and to land and other rights under s. 32 of that Act - In 1981, the plaintiffs sued the defendants, the Attorneys General of Canada and Manitoba, for declaratory relief, hoping that such relief would assist them in future negotiations with the Governments of Canada and Manitoba to achieve a land claims agreement and thereby correct the asserted historical wrong - The Manitoba Court of Queen's Bench held the prosecution of this case at this date was unreasonable, the doctrines of laches and acquiescence both being applicable - See paragraphs 449 to 460.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Constitutional Law - Topic 2986 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The Manitoba Court of Queen's Bench listed factors to be considered in the determining whether as a matter of discretion issue estoppel ought to be applied by the court - See paragraphs 385 to 390.

Indians, Inuit and Métis - Topic 2

General - Indian defined - The Manitoba Court of Queen's Bench held that Métis were not Indians under s. 31 of the Manitoba Act, 1870 - See paragraphs 595 to 616.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Fiduciary duties - The Manitoba Court of Queen's Bench stated that there were three fundamental criteria for the creation of a fiduciary relationship as between aboriginals and the Crown in respect of aboriginal title to land: "(1) the existence of Indian or aboriginal title; (2) the fact that the Indian or aboriginal interest in the land is inalienable except upon surrender to the Crown; (3) the resulting responsibility of the Crown to the aboriginals flowing from the surrender requirement" - See paragraph 629.

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown - Fiduciary duties - [See Indians, Inuit and Métis - Topic 3 , first Constitutional Law - Topic 1203 and first and second Constitutional Law - Topic 1204 ].

Indians, Inuit and Métis - Topic 4402

Treaties and proclamations - General - What constitutes a treaty - [See second Constitutional Law - Topic 1201].

Indians, Inuit and Métis - Topic 5505

Lands - Reserves or Métis lands - Title - Manitoba Act, 1870 - [See first Constitutional Law - Topic 1203 and first and second Constitutional Law - Topic 1204 ].

Indians, Inuit and Métis - Topic 5507

Lands - Reserves or Métis lands - Creation of (incl. allocation of) - Manitoba Act, 1870 - [See Constitutional Law - Topic 1202 , all Constitutional Law - Topic 1203 and first and second Constitutional Law - Topic 1204 ].

Indians, Inuit and Métis - Topic 8735

Practice - Representative actions - On behalf of band and/or nation (incl. Métis) - [See Constitutional Law - Topic 2986 ].

Limitation of Actions - Topic 1907

Actions - General - Declaratory relief - [See Constitutional Law - Topic 2982 ].

Practice - Topic 227.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Métis associations or federations - [See Constitutional Law - Topic 2986 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - The Manitoba Court of Queen's Bench held that the Hansard debates regarding the Manitoba Act, 1870, while helpful in providing historical context, should not be given much weight in interpreting the meaning of the Act or any of its sections - See paragraphs 511 to 556.

Cases Noticed:

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 347].

Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No. 2), [1967] 1 A.C. 853 (H.L.), refd to. [para. 359].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544, refd to. [para. 360].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 361].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General) (1987), 48 Man.R.(2d) 4 (Q.B.), revd. [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182, refd to. [para. 365].

Borowski v. Canada (Minister of Justice and Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 368].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1988] 5 W.W.R. 193; 52 Man.R.(2d) 291 (C.A.), refd to. [para. 373].

Dumont et al. v. Canada (Attorney General) and Manitoba (Attorney General), [1990] 1 S.C.R. 279; 105 N.R. 228; 65 Man.R.(2d) 182, refd to. [para. 381].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139; 144 D.L.R.(3d) 385, refd to. [para. 386].

Maurice et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1999), 183 F.T.R. 9 (T.D.), refd to. [para. 390].

Native Council of Nova Scotia et al. v. Canada (Attorney General) et al., [2002] F.T.R. Uned. 279; 2002 FCT 6, refd to. [para. 390].

Bellegarde et al. v. Canada (Attorney General) (2002), 223 F.T.R. 60; 2002 FCT 1001, refd to. [para. 390].

First Nations of Saskatchewan v. Canada (Attorney General) - see Bellegarde et al. v. Canada (Attorney General).

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 390].

Labrador Metis Nation et al. v. Newfoundland and Labrador (Minister of Transportation and Works) et al. (2006), 258 Nfld. & P.E.I.R. 257; 779 A.P.R. 257; 2006 NLTD 119, not folld. [para. 398].

Corporation of the Canadian Civil Liberties Association v. Canada (Attorney General) (1998), 111 O.A.C. 51; 161 D.L.R.(4th) 225 (C.A.), refd to. [para. 402].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135, refd to. [para. 414].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 419].

Forest v. Manitoba (Attorney General), [1979] 2 S.C.R. 1032; 30 N.R. 213; 2 Man.R.(2d) 109, refd to. [para. 420].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 423].

M.M. v. Roman Catholic Church of Canada et al. (2001), 160 Man.R.(2d) 265; 262 W.A.C. 265; 2001 MBCA 148, refd to. [para. 426].

Barrett v. Winnipeg (City) (1891), 7 Man. R. 273 (C.A.), revd. (1891), 19 S.C.R. 374, revd. [1892] A.C. 445 (P.C.), refd to. [para. 432].

Logan v. Winnipeg (City) (1891), 8 Man. R. 3 (Q.B.), refd to. [para. 432].

Brophy v. Manitoba (Attorney General), [1895] A.C. 202 (P.C.), refd to. [para. 433].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 450].

R. v. Blais (E.L.J.) (2001), 156 Man.R.(2d) 53; 246 W.A.C. 53; 198 D.L.R.(4th) 220; 2001 MBCA 55, refd to. [para. 465].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 512].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 513].

Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co., [1991] 1 F.C. 129; 110 N.R. 394 (F.C.A.), refd to. [para. 514].

R. v. Blais (E.L.J.), [2003] 2 S.C.R. 236; 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3; 2003 SCC 44, refd to. [para. 517].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 519].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 520].

Opetchesaht Indian Band et al. v. Canada et al., [1997] 2 S.C.R. 119; 211 N.R. 241; 90 B.C.A.C. 1; 147 W.A.C. 1; 147 D.L.R.(4th) 1, refd to. [para. 523].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 525].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 526].

Eastmain Indian Band et al. v. Robinson et al., [1993] 1 F.C. 501; 147 N.R. 76; 99 D.L.R.(4th) 16; [1993] 3 C.N.L.R. 55 (F.C.A.), refd to. [para. 527].

R. v. Howard, [1994] 2 S.C.R. 299; 166 N.R. 282; 71 O.A.C. 278, refd to. [para. 528].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 552].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 552].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 562].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 563].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 563].

R. v. Bernard (J.), [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 2005 SCC 43, refd to. [para. 563].

Kruger v. R., [1986] 1 F.C. 3; 58 N.R. 241; 17 D.L.R.(4th) 591 (F.C.A.), refd to. [para. 625].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 626].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 627].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 636].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 636].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 639].

McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128, refd to. [para. 694].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 695].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 696].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 698].

Citizens Insurance Co. of Canada v. Parsons, [1881-85] All E.R. Rep. 1179; 7 App. Cas. 96 (P.C.), refd to. [para. 702].

Canada (Attorney General) v. Ontario (Attorney General) et al., [1898] A.C. 700 (P.C.), refd to. [para. 703].

Reference Re Provincial Fisheries - see Canada (Attorney General) v. Ontario (Attorney General) et al.

Ward v. Canada (Attorney General) et al., [2002] 1 S.C.R. 569; 283 N.R. 201; 211 Nfld. & P.E.I.R. 125; 633 A.P.R. 125; 2002 SCC 17, refd to. [para. 707].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 709].

Templeton v. Stewart (1893), 9 Man. R. 487 (Q.B.), refd to. [para. 727].

Sinclair v. Mulligan (1886), 3 Man. R. 481 (Q.B.), refd to. [para. 728].

Thibeaudeau, In Re (1879), T.W. 149 (Man. Q.B.), refd to. [para. 750].

Barber v. Proudfoot, [1889] W.L.T. 144 (Man. Q.B.), refd to. [para. 754].

Hardy v. Desjarlais (1892), 8 Man. R. 550 (Q.B.), refd to. [para. 755].

Mathers, Re (1891), 7 Man. R. 434 (Q.B.), refd to. [para. 769].

Robinson v. Sutherland (1893), 9 Man. R. 199 (Q.B.), refd to. [para. 778].

Calgary and Edmonton Land Co. v. Alberta (Attorney General) (1911), 45 S.C.R. 170, refd to. [para. 788].

Smith v. Vermilion Hills (Rural Municipality) (1914), 49 S.C.R. 563, refd to. [para. 789].

British Columbia (Attorney General) v. Canada (Attorney General), [1889] 14 A.C. 295 (P.C.), refd to. [para. 790].

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; 84 N.R. 86; 48 D.L.R.(4th) 193; 88 C.L.L.C. 14,011, refd to. [para. 852].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171; 2005 SCC 13, refd to. [para. 877].

Reference re The Power of the Governor General in Council to disallow provincial legislation and the Power of Reservation of the Lieutenant-Governor of a Province, [1938] S.C.R. 71, refd to. [para. 915].

Ontario Hydro v. Labour Relations Board (Ont.), [1993] 3 S.C.R. 327; 158 N.R. 161; 66 O.A.C. 241, refd to. [para. 915].

Irving Oil Ltd. et al. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 945].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd. et al. v. National Harbours Board.

Hosmer v. Wallace (1878), 97 U.S. 575 (Sup. Ct.), refd to. [para. 1110].

Bank of America National Trust and Savings Association v. Bank of Amador County (1933), 135 Cal. App. 714 (Cal. C.A.), refd to. [para. 1111].

Bentley v. Pheppard (1903), 33 S.C.R. 444, refd to. [para. 1112].

Moore v. Boyd (1930), 39 F.2d 502 (D.C. C.A.), refd to. [para. 1113].

Attorney General v. Fonseca (1888), 5 Man. R. 173, refd to. [para. 1145].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 1214].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 1215].

Statutes Noticed:

Conflicting Claims to Lands of Occupants in Manitoba, S.C. 1875, c. 53, generally [para. 837].

Constitution Act, 1867, sect. 91(24) [para. 795]; sect. 92(13), sect. 92(14) [para. 700].

Decrees and Orders Act, S.M. 1884, c. 8, generally [para. 757].

Dominion Lands Act, S.C. 1872, c. 23, generally [para. 818]; sect. 108 [para. 834].

Dominion Lands Act, S.C. 1874, c. 20, generally [para. 824].

Dominion Lands Act Amendment Act, S.C. 1873, c. 38, generally [para. 823].

Dominion Lands Act Amendment Act, S.C. 1879, c. 32, generally [para. 829].

Half-breed Land Grant Protection Act, S.M. 1873, c. 44, generally [para. 715].

Half-breed Land Grant Protection Amendment Act, S.M. 1877, c. 5, generally [para. 723].

Half-breed Land Grant Amendment Act, S.M. 1878, c. 20, generally [para. 733].

Half-breed Land Grant Act, S.M. 1879, c. 11, generally [para. 745].

Half-breed Lands Act, S.M. 1883, c. 29, generally [para. 746].

Manitoba Act, 1870, R.S.C. 1985, App. II, No. 8, sect. 30 [para. 127]; sect. 31 [para. 129]; sect. 32 [para. 128].

Manitoba Lands Act, S.C. 1875, c. 52, generally [para. 836].

Manitoba Land Claims Act, S.C. 1880, c. 7, generally [para. 844].

Manitoba Land Claims Act, S.C. 1884, c. 26, generally [para. 845].

Payment of Securities Act, S.M. 1885, c. 34, generally [para. 758].

Quieting of Titles Act, S.M. 1881, c. 19, generally [para. 749].

Quieting of Titles Act, S.M. 1885, c. 30, generally [para. 753].

Revised Statutes of Canada Act, R.S.C. 1886, c. 4, generally [para. 831].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (2nd Ed. 1976), p. 64 [para. 737].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (Looseleaf) pp. 21-2, 21-3 [para. 701].

Waters, Donovan W.M., The Law of Trusts in Canada (2nd Ed. 1984), p. 92 [para. 738].

Counsel:

Thomas R. Berger, Q.C., James R. Aldridge, Q.C., Harley I. Schachter and M. Bartley, for the plaintiffs;

Robert A. Dewar, Q.C., Paul R. Anderson and Cary D. Clark, for the defendant, Attorney General of Canada;

Heather S. Leonoff, Q.C., and Jayne L. Kapac, for the defendant, Attorney General of Manitoba.

This action was heard before MacInnes, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on December 7, 2007.