Court decision was based on internal, secret government documents

The Métis Nation of Alberta (MNA) has appealed a recent Alberta court decision that concluded the Kenney Government’s decision to cut off negotiations with the MNA on the development of Métis Consultation Policy did not breach the honour of the Crown, including the constitutional duties and obligations Alberta owed the MNA after five years of negotiations. The decision was based on internal and secret government documents that were never disclosed to the MNA at the time negotiations were terminated, and which the MNA only discovered due to the filing of a judicial review.

“The long outstanding and contentious issue of Crown consultation with Alberta Métis continues to undermine both Métis rights and resource development in the province,” said MNA President Audrey Poitras. “While Alberta has consultation policies in place for First Nations and the eight Alberta Métis Settlements, the vast majority of Alberta Métis citizens and communities are never consulted by Alberta when Métis lands, rights and interest are impacted by resource development. Alberta’s approach stands in stark contrast to the federal government who regularly consults with the MNA, which includes its Regions and Locals located throughout Alberta.”

In October 2014, the Progressive Conservative government led by Jim Prentice, and subsequently the New Democratic Party (NDP) government, led by Rachel Notley, engaged in formal negotiations with the MNA to develop a Métis Consultation Policy.  In December 2018, a draft policy was presented to Cabinet with direction that further consultations be undertaken. In April 2019, the United Conservative Party government led by Jason Kenney was elected. Then, in September 2019, Alberta wrote to the MNA stating that it “will not be moving forward with the draft consultation policy,” ending five years of negotiations without explanation for the decision.

“Indigenous peoples who are negotiating in good faith with other governments should never have to sue those governments to understand why they unilaterally cut off negotiations,” said Poitras. “The whole point of negotiations is to talk to each other before either side takes unilateral action. Open communication is vital.”

The MNA filed for a judicial review of the Minister’s decision.  In the litigation, Alberta denied it was even negotiating with the MNA or that the honour of the Crown was engaged by its decision to terminate negotiations.  Alberta also claimed it owed no duty or obligations to the MNA whatsoever.

In her 75-page decision that was released in January 2022, the Honourable Justice Bernette Ho of the Alberta Court of Queen’s Bench rejected Alberta’s positions that it was not negotiating with the MNA or that the honour of the Crown was not engaged.  However, Justice Ho went on to conclude that Alberta met the duties and obligations it owed the MNA by simply advising that it would not be proceeding with a Métis Consultation Policy.  In justifying Alberta’s decision, Justice Ho relied extensively on rationales set out in internal and secret government documents that were never disclosed to the MNA at the time negotiations were terminated.

Based on a unanimous resolution of the MNA Provincial Council, the MNA has now filed an appeal of Justice Ho’s decision to the Alberta Court of Appeal. In the appeal, the MNA claims that Justice Ho erred in considering and applying the application of the honour of the Crown, including the Crown’s duty to negotiate with the MNA. This is the first Alberta case to deal with the Crown’s duty to negotiate with Indigenous peoples, which has been recognized by the Supreme Court of Canada in a series of cases.

“If the honour of the Crown in 2022 means that governments don’t even have to explain the rationale for their decisions to the Indigenous partners they are negotiating with, how is this attitude any different than what we’ve seen in the last 150 years, an attitude that has led this nation to the urgent need for reconciliation?” said Poitras.