Métis Nation of Alberta takes province to court for ignoring Canada’s constitution and Métis rights
Posted on: Jun 14, 2021
Since 1928, our mission has been to advance and protect Métis rights in Alberta. We have met many challenges in this time, and we have celebrated meaningful milestones.
Now, we face a new challenge with the Kenney government who has neglected their duty to consult with Alberta Métis and thrown out the consultation policy that took five years to develop.
Now, we are left with no choice but to turn to the courts and hold Alberta to its constitutional obligations.
This case is another chapter in our struggle for recognition and reconciliation, in a province whose boundaries now sit on our ancient home. It is a case about the application of the Crown’s “duty to negotiate when Aboriginal rights are engaged,”which is different from the Crown’s more well-known duty to consult.
The duty to negotiate has been repeatedly recognized by the Supreme Court of Canada (SCC), but it has yet to be applied based on specific facts by the high court. Like no other duty, the duty to negotiate lies at the heart of the national project of reconciliation. It requires meaningful content—and judicial force—for Indigenous peoples to have confidence and trust that negotiations are the preferred way forward, as opposed to litigation or self-help remedies.
For the Métis, the duty to negotiate is even more essential. Despite our inclusion in s. 35 of the Constitution Act, 1982, the majority of Alberta Métis, who live off of the Métis Settlements, continue to exist in a legal void. While the Government of Alberta has long had policies directing Crown consultation with First Nations and the Métis Settlements, Alberta has ignored their constitutional requirement to negotiate with non-Settlement Métis communities. In the Certified Record of Proceedings it has filed, even Alberta recognizes its approach to Métis consultation “does not work.”
To address this broken approach, two prior Alberta governments engaged and negotiated with the MNA to reach a Métis Consultation Policy (MCP). We embraced this opportunity. Five years of time, money, energy, and trust has been poured into these negotiations. And much was achieved.
In 2015, Alberta secured a cabinet mandate to develop an MCP with the MNA. In 2017, Premier Notley and President Poitras signed a Framework Agreement committing to the development of an MCP. In 2018, Alberta negotiated with us and replaced its problematic Métis harvesting policy with a new one which now accommodates Métis harvesting rights on a regional basis.
In 2019, we signed an agreement with Alberta to implement this new harvesting policy, which affirms the MNA’s authority to identify Métis rights-holders.
By December 2018, we had had successfully negotiated the terms of an MCP that satisfied Alberta’s legal requirements, industry priorities, and the need to align Métis Section 35 harvesting rights with Crown consultation.
Then, on April 16, 2019, a new provincial government was elected. Despite the MNA’s repeated efforts to engage, Alberta went silent. While the new Minister of Indigenous Relations, Rick Wilson made a commitment—in writing—to work with us, he did no such thing. Instead, he and his officials operated as if the past five years of negotiations were for nothing. For Minister Wilson, the honour of the Crown—and the duty to negotiate that flows from it—had no role to play.
On August 13, 2019, Minister Wilson cancelled the Alberta Government’s negotiations with us. Contradicting advice from just nine months earlier, when Minister Wilson’s officials had recommended they finalize the MCP with the MNA and obtain approval from Cabinet.
On September 5, 2019, without any advance notice or opportunity to be heard, Minister Wilson wrote to President Poitras confirming his “decision” and “reasons” in just eleven words: “Alberta will not be moving forward with the draft consultation policy.”
With a stroke of the pen, we are now in a far worse position than if it had turned to the courts in 2014. Our trust in the Crown’s honour was a mistake and we were now left with a broken promise. This case is not about whether Alberta had to implement an MCP. It is not about the Crown’s duty to consult or Alberta’s current approach to that duty. It is about what Minister Wilson was required to do by law in August 2019. The Crown’s obligations were not suspended because there was a change in government. Half a decade of work cannot be thrown away because some of it was done by the NDP. Minister Wilson was and is required to uphold the honour of the Crown. He is required to consider the applicable law, the five-year negotiation history that came before him, and the Crown’s commitments to the MNA. He was required to engage with the us before he made his decision. He did none of this. The decision must be overturned.