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Indigenous - Metis. Bocchini Estate v. Canada (Attorney General)
In Bocchini Estate v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this relating to "the respondents’ longstanding attempt to be added to the Indian Register on the basis that they were the direct descendants of an “Indian”" and whether "the decision of the head of a family to withdraw from treaty result in the withdrawal of dependent family members?".
Here the court cites some Metis and Indian Act history, the illustrates specific events and fact-findings of this case:[6] The relevant history is set out in the decision of the Supreme Court in Manitoba Metis Federation Inc. v. Canada, 2013 SCC 14, [2013] 1 S.C.R. 623, at paras. 19-39, and is recounted here only in brief.
[7] In the 19th century, the area that is now Manitoba experienced a significant influx of settlers, leading to Métis-led resistance and conflict. In an effort to resolve that conflict and in exchange for “the extinguishment of the Indian Title”, the government granted 1.4 million acres of land to the children of the Métis. This was accomplished through s. 31 of the Manitoba Act, 1870, S.C. 1870, c. 3. Although the 1.4-million-acre allotment was intended to be sufficient to provide for all Métis children, the government underestimated the number entitled to land and, as a result, 993 Métis children were mistakenly deprived of the opportunity to participate in the distribution of land. An Order-in-Council dated April 20, 1885 provided that these Métis would instead be given scrip, redeemable for $240 or 240 acres of land.
[8] The Indian Act was introduced in 1876, six years after the Manitoba Act: The Indian Act, 1876, S.C. 1876, c. 18. Métis, described as “half-breeds”, were not regulated by the Act. In order to exclude them from its scope, the legislation made clear that “no half-breed in Manitoba who ha[d] shared in the distribution of half-breed lands shall be accounted an Indian”: s. 3(3)(e). This basis for differentiating between Métis and Indians has been carried forward to the present day: those whose ancestors “received or [were] allotted half-breed lands or money scrip” are not entitled to be registered as an Indian: The Indian Act, S.C. 1951, c. 29, s.12(1)(a)(ii); Indian Act, 1985, s. 6(1)(a).
[9] Importantly for the purposes of this appeal, by amendment to the Indian Act in 1879, the government allowed Métis who had previously adhered to treaty to change their status by withdrawing from treaty and taking scrip: An Act to amend “The Indian Act, 1876”, S.C. 1879, c. 34, s. 1.
[10] Ms. Bocchini applied for Indian status in 1998 and her mother, Bertha Isbister, applied in 2005. Their applications were considered together by the Registrar.
[11] The Registrar initially denied their applications in 2006 on the basis that Ms. Bocchini’s grandfather, St. Pierre Cook, received scrip. However, following further communications with the parties, the Registrar found that Mr. Cook was a minor at the relevant time, and thus incapable of receiving scrip. As a result, the respondents were added to the Indian Register in December 2007 and received the relevant benefits.
[12] In 2009, the Registrar reopened the investigation into the respondents’ entitlement and determined that the respondents should be removed from the Register because Mr. Cook had validly received scrip. In 2011, the respondents formally protested the Registrar’s decision under s. 14.2 of the Indian Act, 1985. The Registrar denied their protests in 2014.
[13] The respondents appealed the Registrar’s decisions pursuant to s. 14.3 of the Act. On May 4, 2021, Brown J. made an order, on consent, setting aside the decisions and remitting them to the Registrar for reconsideration and further investigation. The Registrar was instructed to consider all documentation available to him, including the respondents’ original applications for registration, all correspondence and documentation provided by the respondents, the affidavit of an historian retained by the respondents, and relevant legislative changes.
The Registrar’s 2021 decision
[14] The Registrar issued a new decision on November 16, 2021. He found that Baptiste Spence Sr. (Ms. Bocchini’s great-great-grandfather) withdrew himself and Mr. Cook from treaty on April 2, 1886. The Registrar concluded that Mr. Spence Sr. had the power to legally withdraw Mr. Cook as he was the head of his family and Mr. Cook was in his care. The Registrar relied on the Indian Act as it existed in 1888. Section 13 of that Act provided, in relevant part:[…] any half-breed who has been admitted into a treaty shall, on obtaining the consent in writing of the Indian Commissioner or in his absence the Assistant Indian Commissioner, be allowed to withdraw therefrom on signifying in writing his desire so to do, — which signification in writing shall be signed by him in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same; and such withdrawal shall include the minor unmarried children of such half-breed. [15] The underlined portion was the product of an amendment in 1888 and is not found in the 1886 Act, which applied at the time of Mr. Cook’s withdrawal: An Act further to amend “The Indian Act”, S.C. 1888, c. 22, s. 1.
[16] The Registrar found that, once withdrawn, Mr. Cook was issued scrip on March 8, 1888. He calculated Mr. Cook’s age as 17 on the date of withdrawal and 18 when the scrip declaration was completed.[1]
[17] The Registrar considered evidence that the respondents alleged was indicative of scrip fraud. This included a petition by several members of the Sandy Bay Band who had withdrawn from treaty and taken scrip. Mr. Spence Sr. and his family were members of the band and Mr. Spence Sr. was a signatory to the petition. The petition requested that those who had withdrawn be given the opportunity to return to treaty.
[18] As part of his review, the Registrar also considered two letters, sent after the petition, which explained the basis for the request. In one letter, members of the band complained about an Indian Agent, Mr. Martineau, and a speculator, Mr. Sifton, alleging that these men had lied to the band members and induced them to withdraw from treaty. The second letter, sent by a school teacher, Mr. Twedell, who was also implicated in the first letter, asserted that none of the band members were deceived, and that Mr. Spence Sr., in particular, was “glad” to have taken scrip because he was his “own master now” and could go where he liked. Mr. Twedell asserted that the petition was an attempt by the band members to get the benefit of both scrip and treaty annuities. The Registrar called this second letter a “clarification” to the first.
[19] In 1891, the petition was granted, on the condition that the value of scrip the petitioners had received would be deducted from the treaty annuities that they would receive if they chose to re-enter treaty. Most members of the band elected to repay their scrip and return to treaty, but Mr. Spence Sr. and his family did not. The Registrar considered this history and concluded that it did not establish that the issuance of scrip to Mr. Spence Sr. and his family was fraudulent. He concluded that “it is evident that following receipt of scrip, the Sandy Bay Indians had wished to remain on the reserve and return to treaty” but that, merely on the correspondence between the band members and the government, it “cannot be determined whether the issuance of scrip [to Mr. Cook] was fraudulent”.
[20] Accordingly, the Registrar concluded that the respondents’ ancestors lawfully withdrew from treaty and took scrip. As a result, the respondents were not entitled to be added to the Register. The balance of the case [paras 21-85, and a dissent paras 86-141] is an useful exploration of rare Metis law and history.
For some background see: Metis scrip.
. Manitoba Métis Federation Inc. v. Canada (Energy Regulator)
In Manitoba Métis Federation Inc. v. Canada (Energy Regulator) (Fed CA, 2023) the Federal Court of Appeal considers an appeal by a Metis organization of a decision of the Commission of the Canadian Energy Regulator (the Commission) involving a hydro project advanced by Manitoba Hydro. In the course of the ruling the court briefly reviews Metis and Manitoba Metis Federation (MMF) history:A. History of the Métis people of Manitoba and the MMF
[39] For years, the Métis have fought and succeeded to have their constitutional Aboriginal rights recognized and protected by the courts. Their history includes the very creation of the province of Manitoba in 1870. At that time, 85 percent of the population of what is now Manitoba was Métis.
[40] In 2013, the Supreme Court of Canada was the first court to recognize that the honour of the Crown was engaged by constitutional obligations owed to the Métis pursuant to section 31 of the Manitoba Act, 1870, S.C. 1870, c. 3 (the Manitoba Act). The Supreme Court found that section 31 of the Manitoba Act was not a treaty, but it was a constitutional obligation crafted for the purpose of resolving Aboriginal concerns which then permitted the creation of the province of Manitoba (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623 at paras. 93, 94 [2013 MMF-SCC]). The Supreme Court concluded that the honour of the Crown was engaged and gave rise to a duty of diligent, purposive fulfillment towards the Métis (2013 MMF-SCC at para. 94). The Supreme Court found that this was not done and that a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better (2013 MMF-SCC at para. 128).
[41] In the same Supreme Court decision, for the first time, the MMF was granted standing to represent the collective interests of the Métis people of Manitoba (2013 MMF-SCC at para. 44).
[42] The Métis have also been recognized as part of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. As a result, the Métis enjoy a constitutionally protected right under section 35 to engage in practices that were historically important features of their distinctive communities, such as hunting (R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207).
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