The Anatomy of MMF v. Canada

In April of 1968 a gathering of Indigenous and non-Indigenous people was held in Winnipeg, Manitoba, styled the annual Indian and Métis Conference. This gathering was in the process of disbanding after the incorporation of the Manitoba Métis Federation on December 28, 1967. The delegates to this conference passed the following resolution: “Resolved: that the Manitoba Métis Federation continue its work of investigation into the Manitoba Métis land grant question” (Community Welfare Planning Council, 1968: 30). With these seemingly bland words the MMF became embroiled in a fight against Métis land dispossession with legal as well as political dimensions before the organization's first birthday. It would not be until March 8, 2013, almost 45 years later that MMF v. Canada would finally come to a head at the Supreme Court of Canada. The effort to research and litigate the Métis lands question quickly became a complex process with duelling academic works on Métis land claims occupying significant amounts of space in Métis political consciousness, all the while imposing a burden on limited human and financial resources.

Keeping in mind that it is not the intention of this paper to outline the current state of the law on Métis people, it is worth providing a brief outline of the case and the Supreme Court's findings for the sake of context. The case itself focused on the disbursement of land negotiated by Assiniboia's (as Manitoba was known before July 1870) representatives to Canada in 1870. The MMF argued unsuccessfully at trial in 2007 that the land was not expeditiously provided and, as a result, Métis people were unable to access the full value of their land entitlements under the Manitoba Act 1870, and their land grant was not handled in a fashion consistent with the legal concept of the honour of the Crown. The MMF sought declaratory reliefFootnote ⁴ to aid in their land claim negotiations with Canada and Manitoba. The trial judge did find that there was a delay in providing land to the Métis after the passage of the Manitoba Act; however, the act did not create a fiduciary duty nor was the honour of the Crown at stake (MMF v. Canada, 2013: para. 7–9). At the Manitoba Court of Appeal in 2010, Chief Justice Scott writing for a unanimous court upheld the trial findings while making several changes to the legal reasoning and logics deployed by the trial judge (see O'Toole, Reference O'Toole2014). The Supreme Court ultimately held in 2013 that the Crown did not fulfil its responsibility to act honourably in distributing the land owed to the Métis after 1870 (MMF v. Canada, 2013: para. 97).

The MMF argued at the Supreme Court that because the Métis possess an Aboriginal interest in the land, disbursing the land promised in the Manitoba Act 1870 was a federal fiduciary duty undertaken on behalf of the Métis (Teillet and Madden, Reference Teillet and Madden2013: 4). The court held “the relationship between the Métis and the Crown, viewed generally, is fiduciary in nature. However, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations” (MMF v. Canada, 2013: para. 48). While the Manitoba Act 1870 did not create a fiduciary duty in the eyes of the court, the honour of the Crown was engaged in the agreement reached with the delegates sent from Louis Riel's provisional government. The government of Canada had promised to provide land to the Métis as quickly as possible in light of the government's and empire's plans to settle non-Indigenous peoples in Manitoba expeditiously. S.31 of the Manitoba Act 1870 states that “it is expedient, towards the extinguishment of the Indian Title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed residents” (Manitoba Act 1870: s.31). Given that the promise made in s.31 was entrenched into the constitution, the Supreme Court found that “as a solemn constitutional obligation to the Métis people of Manitoba aimed at reconciling their Aboriginal interests with [Crown] sovereignty, it engaged the honour of the Crown. This required the government to act with diligence in pursuit of the fulfillment of the promise. On the findings of the trial judge, the Crown failed to do so and the obligation to the Métis children remained largely unfulfilled” (MMF v. Canada, 2013: para 9, emphasis added). Thus the Court granted a declaration “that the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown” (para. 154; also see Teillet and Madden, Reference Teillet and Madden2013).

Unpacking the Courts and Legal Mobilization

Choosing to use Canadian courts to advance Indigenous resistance is never an easy decision for Indigenous peoples. Both Canada and the United States deploy(ed) deception, armed and forced removal, erasure and genocide in the service of establishing their settler states (Adams, Reference Adams1989; Alfred, Reference Alfred2005; see Wolfe, Reference Wolfe2006). Law-making power as well as the adjudication of those laws was and remains an integral part of the project of creating and maintaining a state comprised of settlers. However, there has long been a struggle by Indigenous peoples and others resisting state oppression to use settler legal discourses and institutions in a way that advances Indigenous material interests without reinforcing the structures of Indigenous oppression. Part of the difficulty of developing these strategic engagements has hinged on the question of whether legal mobilization can effect social change. More generally, the position that judges and courts cannot effect social change is articulated in Gerald Rosenberg's book, The Hollow Hope: Can Courts Bring About Social Change? (Reference Rosenberg1991; also see Rosenberg, Reference Rosenberg1996). Rosenberg has argued cogently that not only can courts not bring about change in society, they also contribute a false hope that encourages activists to pour their limited resources into what he ultimately believes is a pipe dream.

This touched off a polite and generative exchange with Michael McCann who argues that no institution can single-handedly bring about large-scale change in a society (McCann, Reference McCann1991, Reference McCann1992, Reference McCann1994). McCann states that Rosenberg's “analysis itself obscures the fact that discrete institutions are almost never solitary organs of change in our political system” (McCann, Reference McCann1992: 727). McCann ultimately believes Rosenberg's “focus on courts as independent agents of change involves an unrealistic test that every branch would fail” (728). Instead, McCann approaches the question of social change through legal mobilization with an eye to the contingent nature of the task of affecting change through the courts. He situates this contingency within his analysis explicitly when he says:

McCann is laying the important foundation for first appreciating that courts are embedded within state structures and that courts will be part of the process that reproduce power relations in the interest of the state. Second, he is setting out the analytical possibility that activists' goals, no matter their value or innovative qualities, might not be able to be advanced through the courts.

Andrea Smith (Reference Smith2012), drawing on the orientation to legal mobilization offered by Kimberlé Crenshaw (Reference Crenshaw1988), explores the contradictions faced by Indigenous anti-violence against women activists in their use of the courts. Smith argues the contradiction for activists lies in trying to fight colonial violence through the very same courts implicated in the historical and ongoing processes of settler colonization. Smith points out that an added complexity for activists resisting violence against Indigenous women is the immediacy of the issue at hand. Activists “must also address women who need immediate services, even if those services may come from a colonizing federal government or a tribal government that may perpetuate gender oppression” (Smith, Reference Smith2012: 70, emphasis added). Thus Smith argues activists “are often presented with two dichotomous choices: short-term legal reform that addresses immediate needs but further invests us in the current colonial system or long-term anti-colonial organizing that attempts to avoid the political contradictions of short-term strategies but does not necessarily focus on immediate needs” (Smith, Reference Smith2012: 70). Smith advocates Indigenous peoples deploy legal strategies for their effects and dispense with the “moral statements [those strategies] propose to make” (74). Smith and McCann seem to be approaching the question of legal mobilization from the similar position of delineating its potential for direct social change; however, Smith seems to be missing McCann's robust appreciation for legal mobilization's contingent nature and its secondary or indirect effects.

While McCann also argues that legal mobilization is often deployed to realize direct effects of change like winning “short-term remedial relief for victims of injustice or to develop case law precedents capable of producing long-term institutional change” (McCann, Reference McCann1992: 10), his analysis pays a great deal more attention to indirect effects of legal mobilization. McCann's approach examines the “effects and secondary tactical uses of official legal action in social struggle. Such indirect effects can matter for building a movement, generating public support for new rights claims and providing leverage to supplement other political tactics. Indeed, given the copious evidence demonstrating that judicial victories often produce uneven or negligible impacts on targeted social practices, such indirect effects and uses of litigation may be the most important of all for political struggles by most social movements” (10). In particular, it is McCann's attention to “building a movement” which seems relevant to this article's interest in the inter-Indigenous politics at play in the MMF case. He argues that one of his findings in his examination of equal pay for equal work legal mobilization is that it “catalyze[d] a formidable grass-roots campaign among women workers throughout the nation” (1992: 738). Indeed, other scholars have also noted the role played by legal mobilization in building a movement (for example, Crenshaw, Reference Crenshaw1988; Manfredi, Reference Manfredi2004; Smith, Reference Smith1999).

Building something resembling a broad Indigenous movement outside of legal mobilization, especially from the perspective of political organizations, has proved to be a long-standing challenge for Indigenous peoples. In her powerful and foundational work Half-Breed, Métis author and activist Maria Campbell describes some of the complexities in her community's relationships with First Nations peoples. She argues that one of the sources of friction between Métis and First Nations is that First Nations “had land and security, we had nothing. As Daddy put it, ‘No pot to piss in or a window to throw it out.’ … ‘Mushooms’ (grandfathers) and ‘Kokums’ (grandmothers) were good. They were prejudiced, but because we were kin they came to visit and our people treated them with respect” (Reference Campbell1973: 25). In 1975, Métis scholar and activist Howard Adams argues that conflict between Indigenous peoples stemmed in part from racial discrimination and legal categories that keep Métis, status Indians, non-status Indians and Inuit separate. Adams believes that some Indigenous politicians internalize key racist images advanced by the state which undermine Indigenous political movement building. These images result in some Métis seeing themselves as superior to First Nations while some First Nations view themselves as the true and pure Indigenous peoples (1989: 145, 154). Significantly more work needs to be done to assess Adams' bold claim; however he is right that among political organizations there has existed a tense and competitive relationship for some time (see also Pitsula, Reference Pitsula1997).

The same dynamic played out between Indigenous peoples during the patriation debates in the 1980s and the subsequent four First Ministers Conferences on Aboriginal Constitutional Matters. In this arena Métis, Status and non-Status Indians challenged each other for seats at the negotiating table (see Weinstein, 2007). Slightly more recently, in an unpublished paper, Métis lawyer and activist Paul Chartrand reflects on the community and political ties between First Nations and Métis communities and frames it this way: “There are many very close personal and community relations between First Nations and Métis people, but the relations between the political representative organizations are not close” (Reference Chartrand2007: 12). Chartrand argues that this problem is created by Métis and First Nations leaders paying attention to small and specific electoral constituencies that provide Indigenous leadership with their mandates rather than organizing around the struggles of colonialism that face all Indigenous peoples.

In light of the already frustrated process of Indigenous political movement building, what might the indirect effects of legal mobilization be for the Métis and their kin and allies in other Indigenous nations? It seems that a key element to understanding this question is working through what McCann and others frame as “limitations, biases, and burdensome baggage” that originate in strategically mobilizing Her Majesty's courts. What follows in the next section is an examination of key biases, documented by critical legal scholars that stem from structural limitations imposed by legal institutions on Indigenous claimants. There is literature that suggests judges tie themselves in knots to find for the state even when logic is on the side of Indigenous litigants.Footnote ⁵ Thus, legal mobilization goals, regardless of how they are framed by creative mobilizers, are unlikely to result in victories for Indigenous peoples. Following this I argue that one of the indirect effects of legal mobilization for Indigenous peoples is that Indigenous peoples fight against one another even though their broader strategic interests would be to work together. It is essential to understand these dynamics in order to make informed decisions about whether one should strategically mobilize settler courts.

Lawyerly Critiques of the Courts

The Canadian legal system outside of Quebec is a British common law system. The common law uses precedents or stare decisis to ensure that like cases are decided similarly. Bell and Asch argue “according to the doctrine of stare decisis lower courts must follow like decisions of higher courts within the same judicial hierarchy to the extent that they apply to the case before them” (1997: 39). The rationale is that justice and fairness demand that all people are equal before the law, and similar circumstances be treated similarly thus eschewing, in theory, the application of the law in an uneven and arbitrary manner (39).

While asserting that they do not seek to eviscerate precedent, Bell and Asch level pointed critiques against its application to Indigenous litigation and call for a reconceptualization of the operation of precedent. They argue the interpretation of Indigenous cultures within legal institutions “relies on precedents which contain an approach to the analysis of culture which is out of date, biased and ethnocentric” which serves to place Indigenous peoples at “a tremendous disadvantage in litigation” (56). The deployment of cultural understandings of Indigenous peoples rooted in the nineteenth century concept of terra nullius as the court's default position when adjudicating Indigenous rights to land, title, and jurisdiction over land unfairly structures the legal playing field (see Asch, Reference Asch2002).Footnote ⁶ Precedent imposes British discourses of civilization on Indigenous litigants whereby the absence of European characteristics of society denote a corresponding absence of civilized Indigenous peoples. The courts have insisted that it falls to Indigenous peoples to engage in the expensive and humiliating process of refuting that the Crown was a superior entity to inferior Indigenous societies. This sets up an orientation to litigation whereby the equivalency between settler and Indigenous peoples was somehow in doubt (Bell and Asch, Reference Bell, Asch and Asch1997: 72). The result is that the legal system itself is oriented towards perpetuating the Canadian state's civilizing myth. As Bell and Asch point out, questioning the magic of the Crown's assertion of sovereignty would be the more logical activity for the courts; however, that would call into question the vast body of legal decisions on land transfers within which the courts, as a branch of government, are implicated.

John Borrows has identified a similar problem with the primacy of Crown sovereignty. In a style similar to that of Bell and Asch, Borrows states “failure to question the Crown's assertions of underlying title and sovereignty (while strictly scrutinizing Aboriginal assertions) appears to create a bias in the law in favour of non-Aboriginal groups who rely on Crown assertions in Canada” (Borrows, Reference Borrows and Borrows2001: 39). While Borrows critiques the assertion of Crown sovereignty, he ultimately offers an optimistic view of the future of Canada's legal system stemming from the independence of the judicial branch of government in general and that of judges in particular. He argues that it is well within a judge's range of powers to question Crown sovereignty and the history of that assertion over Indigenous territories. He argues that “Canadian courts are separate and autonomous from the Crown and the legislature, and do not function as the servants of the Queen or Parliament” (44). This allows courts to interrogate and even invalidate (45) the fashion by which the Crown asserts its power.

On its face this appears to offer a promising future for Indigenous peoples strategically deploying legal argumentation to deconstruct settler colonial myths like the supremacy of Crown sovereignty. However, Borrows does not distinguish between courts as independent from the Crown, and courts as agents exercising Crown power. This distinction brings to the fore the power to decide as the locus of judicial power. As David E. Smith has argued “the Crown is the organizing force behind the executive, legislature, administration, and judiciary in both the federal and provincial spheres of government” (1995: x). The power to decide on a case is power the Crown has agreed to delegate to a judge. So while judges are independent from the Crown and other branches of government, they exercise a particular brand of power from an Indigenous litigant's perspective. This point is probably best captured by Viscount Haldane's description of the constitutional relationship between the Crown and the Judicial Committee of the Privy Council (JCPC) (on which he sat) to the Attorney General of the Irish Free State in 1923.

The point here is that the Committee's power stems from the willingness of the sovereign to act upon the advice of the Crown's law lords. This perhaps most clearly links the origins of judges' powers to the Crown. The invalidation of Crown sovereignty may undercut the legitimacy of the power that judges exercise. This subtle point can both consciously and subconsciously shape one's view of the institution that supplies one's power. The suggestion here is that the structural biases in the courts identified by Asch, Bell and Borrows may be reinforced by the interpellation of judges within Crown power. This would significantly constrain the transformative potential Borrows locates in judicial independence.

This is not to say Borrows' point about the potential to invalidate Crown power is incorrect. Kent McNeil has argued convincingly that there is legal precedent for courts challenging Crown sovereignty. He points out that the JCPC invalidated Crown sovereignty in Matabeleland in Staples v. The Queen (1999: 3). At issue in the case was whether or not the Crown had gained sovereignty over this African territory by settlement or by a Royal charter. Asserting sovereignty through settlement would have been a readily recognized legal option that seventeenth, eighteenth and nineteenth century jurists could have used to legitimize the expansion of Crown sovereignty to new territories.Footnote ⁷ Even as late as 1899 British courts were quick to insist on a Crown interest in the land being robust. Matabeleland had a Royal charter but no history of robust settlement. The JCPC found that a Royal charter cannot be used to advance Crown sovereignty in the absence of clear claims to settlement. This issue came to a rather dramatic head in an exchange between one of the Law Lords and counsel. McNeil quotes the exchange to be:

McNeil's analysis tells us Borrows is both correct and insightful that courts can and do question the Crown's assertion(s) of sovereignty. The problem, however, is that despite these glimmers of hope for strategic mobilization, judges have not acted on the numerous opportunities to use their independence to challenge underlying claims and historical myths of Crown sovereignty in what is now Canada. Instead, judges have chosen to leave these biases intact in the Crown's favour. Indeed, in the Supreme Court's decision in Sparrow the court set out explicitly that “while British policy towards the native population was based on respect for their right to occupy their traditional lands … there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown” (R. v. Sparrow: para 45). This established the court's orientation that “existence of Crown sovereignty over indigenous peoples was legally unassailable” (Slattery, Reference Slattery2005: 434). While not conclusive evidence, it does suggest that the courts, which derive their power from the Crown, may be shaping the identities of jurists to protect the shoddy legitimacy of the broader settler state.

The important contributions here of Asch, Bell, Borrows and McNeil are all to say that, in McCann's words, there are “biases and burdensome baggage” that help explain why Indigenous peoples not only need to be concerned about providing legitimacy to the institutions and myths of their oppressors through litigation, but also that the structures of litigation per se are skewed against Indigenous claimants, thereby significantly reducing the opportunities to litigate strategically. These also appear to be the constraints that Sally Engle Merry believes limit the extent to which legal symbols and, importantly for the purpose of this paper, institutions, can be manipulated by creative litigants (as quoted in McCann, Reference McCann1992: 7). Further, in the Canadian context, Peter Russell has argued final appellate courts have tried to be generous in constructing Aboriginal rights but “have always held back from questioning the legitimacy of the full sovereign power of the settler state over the Aboriginal peoples” (1998: 274–75). McNeil has been equally concerned that “regardless of the strengths of legal arguments in favour of Indigenous peoples, there are limits to how far the courts in … Canada are willing to go to correct the injustices caused by colonialism and [land] dispossession.” What seems most at play in judicial reasoning is “the extent to which Indigenous rights can be reconciled with the history of British settlement without disturbing the current political and economic power structure” (2004: 300–01). Taken together, these scholars are suggesting that Indigenous peoples face courts where the capacity for deploying legal strategy is markedly reduced. Thus, what one would reasonably assume counts in the court, namely the ability of Indigenous litigants to use existing legal precedent as well as the rules and logic of argumentation to persuade a judge actually counts for very little. What matters in reality are considerations exogenous to the case and court, namely, the impact to the settler status quo should a judges use their independence to eviscerate the settler legal magic used to create Canada.

All of this is to say that there are well-argued reasons that the structure of the law goes to great lengths to find for the settler status quo. As Jeremy Patzer (Reference Patzer, Adams, Dahl and Peach2013) has pointed out, courts can produce precedents that seem like victories at first only to manifest violently (and intractably) in new cases. Patzer notes this is particularly true for Métis people who do not have a body of case law stretching back many decades to inform the debate about whether or not to move a dispute into the courts. Beyond these political concerns, new attention is being paid to the deeply troubling racialized logics at play in fields of juridical power. As Métis scholar Chris Andersen has eloquently pointed out in his analysis of the Powely decision, juridical institutions import deeply problematic racalized notions of Métis identity, which are then “stripped of their juridically non-relevant complexity, sprinkled with a juridically authoritative ‘pixie dust’ that grants them an apparently natural, timeless solidity, and then deployed back into other fields as well as their own” (Andersen, Reference Andersen2014: 67–68).

The Inter-Indigenous Risks of Litigation

The preceding section argued there are structural biases within Canadian courts that limit their legal mobilization utility. But there is a perhaps more insidious reason to reject Indigenous legal mobilization: courts' indirect power to divide Indigenous peoples rather than contribute to Indigenous movement building. By examining the way different Indigenous peoples interact through a single court case one can better see the way courts divide the Indigenous political landscape. The MMF v. Canada case serves as an interesting avenue through which to investigate these dynamics. My analysis will focus on the interaction between the MMF and Treaty 1 peoples that played out in the Manitoba Court of Appeal. Treaty 1 peoples sought but were denied intervener status using shared counsel for their collective representation at the Manitoba Court of Appeal. This group included Brokenhead Ojibway Nation, Fort Alexander (Sagkeen First Nation), Long Plain First Nation, Peguis First Nation, Roseau River Anishinabe First Nation, Sandy Bay First Nation and Swan Lake First Nation (Kempton and Wolfe, Reference Kempton and Wolfe2008b; see also Kempton and Wolfe, Reference Kempton and Wolfe2008c). They sought to intervene collectively as the signatory nations to Treaty 1. The application to intervene was the first attempt that Treaty 1 peoples made to intervene in the court case, not having done so at trial before the Court of Queen's Bench. Interveners must satisfy to the Manitoba Court of Appeal that they have an interest in the subject matter under consideration and a reasonable likelihood that they will “make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties” (Berger and Aldridge, Reference Berger and Aldridge2008: para 8, iii). The Manitoba Court of Appeal includes provisions in its practices that demand a prospective intervener show more than the possibility of one's rights being “affected by the precedential value of a case” (para 7). The Court will not allow an intervention if it is likely to cause an injustice to the parties or undue delay in the progression of the case.

While the hearing at the Court of Appeal was the first time Treaty 1 peoples sought intervener status, it was not the last. Treaty 1 peoples also sought and were granted intervener status at the Supreme Court along with the Assembly of First Nations, Métis Nation of Alberta, Métis Nation of Ontario, the Métis National Council and the attorneys general of Alberta and Saskatchewan. The following analysis focuses exclusively on the first intervention attempt at the Manitoba Court of Appeal for several reasons. First, the interaction at the Court of Appeal involved a focused exchange between the MMF and Treaty 1 peoples localized to issues stemming from living together in the same space for many generations. At the Supreme Court on the other hand, the variety and range of interveners meant that there were many and varied interests, conversations and considerations at play. Limiting my analysis to the focused, local conversations at the Court of Appeal seizes upon a unique opportunity to examine inter-Indigenous politics within a tightly bounded institutional as well as geographic context. Second, and relatedly, given the dearth of scholarship on Métis use of the courts for political purposes, it seems wise to build the literature from just such a focused place and then expand to comparative institutional analysis. Finally, dealing with the particularities of rules and practices of two different courts requires one to be sensitive to the nuances of institutional differences. Such a sensitivity leads to an important research trajectory on questions of Indigenous legal mobilization, but also sits beyond the scope of this article.

At the Court of Appeal Treaty 1 peoples argued they ought to be allowed to intervene for several reasons. If the MMF were to be successful in the case and achieve the subsequent goal of a negotiated Métis land grant, the most likely place for disbursement of this potential land would be from Crown holdings (Kempton and Wolfe, Reference Kempton and Wolfe2008b: 5). There is little unoccupied Crown land within the geographic area that constitutes Treaty 1. Further, Treaty 1 peoples have outstanding treaty land entitlement claims of their own. Thus for every hectare of land given to a potentially successful Métis land claim, there is one hectare less to fulfil the land entitlements of Treaty 1 peoples (5). They also wished that some of the trial judge's historical narrative be declared non-binding. Specifically, they were concerned about the narrative relating to the assertion of Crown sovereignty, extinguishment provisions of the Selkirk Treaty in 1817 and the extinguishment of Aboriginal title generally within Treaty 1 territory. They argued that the trial judge could not have made findings of fact on these types of questions because information was not entered into evidence by Treaty 1 peoples who are the keepers of this knowledge.

The motion to intervene contained several arguments that would have raised considerable indignation among the MMF litigants. Treaty 1 peoples offered that the Crown had no right to grant any land or rights to the Métis in 1870 without full consultation with, and accommodation of, Treaty 1 peoples. Finally “to cure this invalidity the Canadian and Manitoba governments must today consult with and accommodate the Treaty 1 First Nations in respect of their Aboriginal title, lights [sic] or Treaty rights that might be affected by any future negotiations between the Crown and the Métis in Manitoba” (6). On this point Treaty 1 peoples posited in their brief that “neither the Métis community, nor the federal or provincial government considered the interests of Treaty 1 First Nations in these proceedings” (para 6).

This choice of language positions the Métis with the federal and provincial governments in a collective lack of concern for the interests of First Nations peoples. This frames the Métis not as an Indigenous people agitating for their dispossessed land and rights but rather as part of a cadre of settler interests seeking to dispossess First Nations peoples. It is worth pointing out also that the phrase “these proceedings,” while probably perfunctory for Treaty 1 peoples' counsel, emphasizes the contemporary role played by Métis political actors undermining First Nations' struggles. Said differently, even though Treaty 1 peoples alleged that their interests were not taken into consideration during the machinations of the 1870 Red River Resistance, the statements made in their application to intervene suggest that a Métis lack of concern for First Nations is as much a contemporary problem as it is a historical one.

Adding to this, Treaty 1 peoples argued in their notice of motion that the Manitoba Act 1870 provided 240 acres of land per Métis child, whereas Treaty 1 provided only 160 acres per family of five, working out to be 32 acres per person. They suggested that these smaller land allotments were unfair: “Treaty 1 First Nations are and were entitled to be treated fairly with respect to the allotment of land by the Crown” (5). As Pitsula (Reference Pitsula1997) has argued, Indigenous political organizations have long used differentials in government financial allocations between Métis and First Nations as leverage to extract additional resources from the state. These differentials and the attempt to parlay them into additional resources have also frustrated Indigenous political movement building. However, in the MMF case this dynamic is formalized within legal argumentation to position the Métis as competitors for finite resources rather than as subjects of the same programme of dispossession. As Howard Adams (Reference Adams1989) points out, colonial authorities deploy differences in particularities of oppression to obscure the common plight of all Indigenous peoples from each other. Adams believes that colonial oppressors encouraged Indigenous peoples to focus on their local problems as singular ends. This prevents Indigenous people from critically connecting their oppression to that of other Indigenous peoples in Canada (154–55). Imposed distinctions between Indigenous peoples, operationalized through inclusions and exclusions in the oppressive measures contained in the Indian Act (as just one example), also serve to particularize Indigenous oppression. The concern in MMF is that Indigenous peoples seem to be both perpetuating and exacerbating this divided landscape through their legal strategies. The result, to reflect on McCann's indirect effects of legal mobilization, is that this engagement within the Court of Appeal is contributing to the difficulty of building a broad Indigenous political movement.

However, by seeking to discard parts of the trial judge's findings, Treaty 1 peoples were offering something the MMF should have wanted. The trial judge created a judicial history in his reasons that set up the context of the 1870 Red River Resistance.Footnote ⁸ The trial judge stated that after 1763 “Britain gained sovereignty over all of Canada which would have included the area not covered by the grant, but which ultimately became Manitoba” (Kempton and Wolfe, Reference Kempton and Wolfe2008a: para 28). The trial judge also found that Lord Selkirk had extinguished the Indian title two miles back from either side of the Red River in 1817 (2008a). In a fashion similar to what Patzer was concerned about, Treaty 1 peoples experienced collateral violence through the MMF's pursuit of this case. That is to say, Treaty 1 peoples were not the intended targets of the MMF's legal strategies, but all the same, Treaty 1 interests were threatened by issues not directly linked to the MMF's case. Where Patzer was concerned with the way diverse Métis communities must contend with intractable precedents, one can see here that other Indigenous peoples experience collateral violence in what is a Métis focused court case. Treaty 1 peoples and the Métis have an obvious interest in challenging such an ethnocentric historical narrative. Both First Nations' and Métis' interests are implicated in the trial judge's pro-state view of northern plains history. But counsel for the MMF argued that no court would ever look on the trial judge's historical narrative as binding on future cases. The MMF argued in their response “those comments are a mere recounting of the historical narrative, or of the conventional understanding at the time. The comments are obiter dicta, and they are plainly not binding on anyone” (Berger and Aldridge, Reference Berger and Aldridge2008: para 10).

It does not help the MMF to have such blatantly pro-settler interpretations of history connected, even as background, to their claims. As the preceding section has pointed out, such interpretations of the past are patently ethnocentric in their construction of Indigenous peoples, and serve as feats of judicial-historical magic in the service of Crown sovereignty. In the decision dismissing the application to intervene, the Court of Appeal held that the MMF was correct that the trial judge's “conventional historical background” would not be binding on future cases and that to examine them would result in “additional costs and further delay,” and therefore injustice, to the present parties (MMF v. Canada, 2008: para 13 and 19). However, this application to intervene is not important for the reasons of its denial. Rather, it brings to light the broader indirect effects of legal mobilization for Indigenous peoples. In a troubling fashion the MMF's decision to defend the recounting as inconsequential and/or “the conventional understanding at the time” positions the Métis as defenders of the ethnocentric history that serves to dispossess them and their relations in Treaty 1 Nations of land and territory. At the very least, this is a clear moment for judicial co-ordination among all the Indigenous litigants because the resulting narrative benefited neither the Métis nor Treaty 1 peoples.

For their part, the MMF responded on the whole to Treaty 1 peoples by using the rules of the court to undermine the application to intervene. They argued that Treaty 1 peoples did not have an interest in the issues under appeal, that their intervention would unduly add to the time and cost of the case and that they would not make a useful contribution to the litigation (Berger and Aldridge, Reference Berger and Aldridge2008). Speaking directly to the question of the right to provide a grant of land in the Manitoba Act 1870 the MMF argued “whatever the rights and titles of the First Nations people may have been in 1869 and 1870, they clearly did not create any constitutional impediment to Parliament enacting the Manitoba Act, and in particular sections 31 and 32 thereof” (para 16). They went on to add “finally, if the Applicants' point had any merit, it would apply not just to sections 31 and 32, but to section 30 and all of the other legislation authorizing land grants to settlers and others. It is quite beyond the pale for the Applicants, in the guise of an intervention in this appeal, to seek to argue in effect that the entire land system of Manitoba is ‘invalid’” (para 20). It is a great oddity that in these interactions with people who should be natural allies by virtue of being subjects of the same processes of settler colonization, the Métis come to be the unlikely defenders of the land tenure system which dispossessed them and their kin in Treaty 1 peoples.

Canada and Manitoba also argued against Treaty 1 intervention. Each order of government used a different argumentation strategy to arrive at the same conclusion. In a troubling way, Canada's and Manitoba's agreement with the MMF did position the MMF to seem happy to work with the common oppressor of all Indigenous peoples to cut out a competing Indigenous interest for a single slice of land. The court dismissed the application stating that adding Treaty 1 peoples as interveners would unduly add to the length and cost of the case without providing a new unique perspective and their presence as interveners would likely change the nature of the litigation before the court (MMF v. Canada, 2008: para. 18–21). However, the relevance of studying this interaction between Métis and First Nations peoples is not found in the reasons for denying the application to intervene, but rather for what it says about how Métis and other Indigenous peoples agitate against their dispossession and continued oppression within the settler colonial state. It seems the MMF did not construct the arguments of their case with the common oppression of all Indigenous peoples in mind. To that end Treaty 1 peoples had a point when they argued no party is taking into consideration the interests of Treaty 1 peoples. Instead the MMF deployed legal strategies in a fashion designed to advance Métis interests in a zero-sum framework where land becomes a single, indivisible resource for which multiple Indigenous peoples must compete.

Similarly, neither are Treaty 1 peoples helping in their intervention in the MMF case. They constructed their arguments in a confrontational fashion aligning the Métis with their common oppressors while pitting themselves against the Métis for access to land that is exclusively understood as indivisible. The result is that in a single court case there is a fight on two fronts. Métis and First Nations peoples against the state and First Nations peoples against the Métis. The crux here is that this engagement misses the way the Métis and Treaty 1 peoples have been dispossessed by the same processes of settler colonialism. Intervening in this fashion only contributes mistrust and animosity between Indigenous nations making the building of a movement more difficult than it already is. This helps to entrench competitive political relationships among Indigenous peoples within a formal institution of the settler state. In the final estimation, both sides' arguments are not conducive to collaboration or co-ordination in a struggle that has gripped and devastated both First Nations and Métis communities.

Val Napoleon has argued “litigation for aboriginal peoples is like a two-edged sword that cuts internally into the aboriginal communities and externally into the legal relationship between aboriginal people and the state” (Daly and Napoleon, Reference Daly and Napoleon2003: 114). Speaking about her work on the Delgamuukw case, Napoleon explains that the cut into communities seems to manifest in a reduced capacity to manage internal conflict through a complex process of first abbreviating dynamic and interrelated kinship institutions into something intelligible to settler courts, and then organizing around those re-articulated institutions (119–20). What the MMF case suggests is that while Napoleon's insights into the indirect effects of Delgamuukw case are helpful, there is also a third cut that is occurring between Indigenous peoples. The resulting fracture through the Indigenous political world undermines broader Indigenous political unity. As Bonita Lawrence (Reference Lawrence2004) has eloquently argued, there is a long and painful history of the settler state dividing the Indigenous world, not the least through the power to make laws. The litigation of Indigenous disputes with the state provides Indigenous litigants the opportunity to exacerbate those divisions.

The forgoing analysis is not to say that co-ordination across distinct but related interests cannot be achieved in the legal arena. Christopher Manfredi has examined these types of co-ordinated legal strategies in civil society. While his analysis provides hope for Indigenous legal mobilization, it is important to remember that inter-Indigenous politics are concerned with land in a way civil society is not.

Political Co-ordination and the Incentives to Exclude

In his book on the Women's Legal Education and Action Fund (LEAF), Manfredi (Reference Manfredi2004) examines in detail the organization's interventions in the courts to advance women's rights after the advent of the 1982 Canadian Charter of Rights and Freedoms. He documents the way LEAF's arguments have been embraced by judges in the rendering of decisions. However, for my purposes here, his discussion of the co-ordination between different social movements seems most helpful. LEAF forged productive legal alliances with disparate social groups like the Canadian Civil Liberties Association (CCLA), DisAbled Women's Network, Equality for Gays and Lesbians Everywhere (EGALE) and others. Though on some cases these organizations may find themselves opposing LEAF, on the whole the strategic partnerships and coalitions bolstered LEAF's arguments through co-ordinated legal argumentation. The strength of this approach is that LEAF's submissions were viewed by the court as carrying more weight than that of just a single organization or social group (Manfredi, Reference Manfredi2004: 30).

These types of alliances and partnerships require the management of complex and contradictory views across social movement groups. For example, in the Butler case dealing with the distinction between pornography and obscenity, LEAF argued that “‘pornography amounts to a practice of sex discrimination against individual women and women as a group’” and used gay male material to support their position (as quoted in Manfredi, Reference Manfredi2004: 76). However Manfredi argues that this caused significant friction within the feminist movement especially among lesbian activists. When the Little Sisters case (2000) came before the Supreme Court, LEAF argued that the court should reframe its view of lesbian erotica to see it as emancipatory, not as harmful obscenity, for a particular group of women. Winnipeg lawyer and LGBT rights activist Karen Busby co-authored the factum for LEAF “to reconcile the apparent tension between its Little Sisters position and the argument advanced in Butler” (Manfredi, Reference Manfredi2004: 80). Manfredi states “LEAF had to focus on lesbian material for the simple reason that it had offered gay male material as examples of harmful obscenity in Butler” (80). However from a strategic perspective “the intervention, [in Little Sisters] … was as much about healing wounds within the feminist movement as it was about achieving a particular legal objective” (81). The legal nuances of the cases aside, the point for this article is that strategic legal co-ordination and collaboration requires a deft hand to manage distinct interests and goals; however, when done well it seems to contribute greater strategic currency for litigants and their allies while also helping to build a broad movement. In MMF v. Canada, though, it appears that the case brought by the MMF was itself uncoordinated and the intervention application and the response were reactionary, inflammatory and divisive. The case and the intervention contributed ill will to an already fractured Indigenous political landscape.

One cannot, however, simply import the successes and strategies used by LEAF to bolster inter-Indigenous legal mobilization. LEAF differs in important ways from the struggle of Indigenous peoples inside and outside the legal system. As Manfredi discusses, “LEAF did not emerge in explicit opposition to the state … Its founding document was a report commissioned by the federally funded Canadian Advisory Council on the Status of Women” (33). Further LEAF has through its history included the Crown in right of Canada and the Crown in right of several provinces as allies. As discussed above, Indigenous peoples, by the very fact of being Indigenous in a settler state, challenge the foundation of the Crown's legitimacy claims. Indeed, the coalition and partnerships in which LEAF is engaged are, for the most part, non-threatening to the ontology of the settler state. EGALE, or even the CCLA are not intervening in the courts for the purpose of deconstructing the narrative of the state as it pertains to the state's inherent legitimacy. Further, organizations like LEAF are not litigating from a place seeking to reclaim, define or shore up an interest in the land, and thus the questions of land are equally irrelevant to governments in their responses to LEAF.

While MMF v. Canada sought to strengthen the Métis' strategic negotiating position, it was also about relationships to, and interests in, the land. Putting aside the legal understandings of Métis title, land is a complicating factor that incentivizes zero-sum relationships between Indigenous litigants. In Delgamuukw Chief Justice Lamer defined “aboriginal [sic] title in terms of the right to exclusive use and occupation of the land” (Delgamuukw, 1997: para 155). He further rationalized his decision by saying “were it possible to prove title without demonstrating exclusive occupation, the result would be absurd, because it would be possible for more than one Aboriginal nation to have Aboriginal title over the same piece of land, and then for all of them to attempt to assert the right to exclusive use and occupation over it” (para. 155). This is less of an absurdity in the world of Indigenous politics where Métis people engaged in sophisticated processes of treaty making with the other Indigenous peoples sharing the same territory (Gaudry, Reference Gaudry2014). Chief Justice Lamer's views here are more of an indication of his contrived effort to reconcile Indigenous peoples with the Crown and in the process make Aboriginal rights intelligible to the common law.

In an effort to accommodate a type of shared territory, Lamer found that there could be a finding of “shared exclusivity (Delgamuukw, 1997: para. 158). This would be “the right to exclude others except those with whom possession is shared. There clearly may be cases in which two aboriginal nations lived on a particular piece of land and recognized each other's entitlement to that land but nobody else's” (para. 158). Lamer noted two important caveats to shared title. First that even in shared title cases there may be limits to the title of one band that also shape, and probably circumscribe, the way a second band uses the lands claimed (para. 158). This sets up a dynamic whereby it is always better to be the exclusive titleholder. Adding another Indigenous people to a title claim contributes an added level of uncertainty. It may not be clear what the presence of a shared or competing claim will do to the range of power that title will confer. Given this risk, it is likely a safer strategy to try to undermine the shared or competing claim to maximize the benefit of a favourable finding by the courts.

Secondly, Lamer offered that “if Aboriginals can show that they occupied a particular piece of land, but did not do so exclusively, it will always be possible to establish Aboriginal rights short of title … [however] this does not entitle anyone to the land itself” (para. 159, emphasis added). This exacerbates the dynamic of the first caveat. In the event there are competing claims to a single piece of land, Lamer opens the possibility that none of the Indigenous parties will be granted title to it, further incentivizing the desire to secure a finding of exclusivity. Lamer's findings in Delgamuukw set the stage for Treaty 1 peoples to not only contend with each other to gain exclusive title, but also with the Métis. Thus where Manfredi correctly noted that organizations like LEAF do not challenge the legitimacy of the state, they also are not wrapped up in complex and multilateral claims to land made by multiple Indigenous peoples. It is in these battles for land where the rewards for deploying zero-sum strategies to show exclusivity are richest.