Tansi Nîtôtemtik,
This week on the blog, we are examining the path forward to revitalizing Indigenous law and recognizing the inherent right to self-determination.
Today, we look at the Métis Nation Within Alberta Self-Government Recognition and Implementation Agreement (the Agreement) signed by the Métis Nation of Alberta (MNA) and Canada on February 24, 2023. We discuss how the Agreement could impact the MNA’s relationship with Alberta.[1]
Image Source: https://albertametis.com/app/uploads/2023/02/Self-government-and-Implementation-Agreement-signed.pdf
The Agreement builds on negotiations started in 2017 and a self-government agreement signed in 2019.[2] Upon signing the Agreement, Canada officially recognizes the MNA as an Indigenous government, representing its citizens and communities, known as the Métis Nation within Alberta.[3] Further, Canada recognizes that “this Métis collectivity has an inherent right to self-government recognized and affirmed by section 35 of the Constitution Act, 1982.”[4] In addition, Canada recognizes the MNA has jurisdiction over critical facets of the right to self-determination, such as citizenship, elections, administration matters and child welfare.[5]
The Agreement also commits the parties to “ongoing negotiations towards a core self-government treaty within the next two years.”[6]
Photo Source: https://albertametis.com/news/mna-and-canada-sign-self-government-recognition-and-implementation-agreement/
As noted by Métis lawyer and counsel for the MNA, Jason Madden, the Agreement reverses Canada’s historic resistance to negotiating treaties with the Métis “based on the false assumption that Métis do not collectively hold rights and interests that need to be addressed in the process of nation-building.”[7]
Photo Source: https://pstlaw.ca/jason-madden/
The next step in the negotiation process includes federal legislation that will reaffirm the recognition in the Agreement and provide a clear legal framework for giving the future government treaty legal force.[8]
Métis rights recognition is essentially a matter for the federal government and the courts.[9] In practice, however, the Government of Alberta and its interpretations of rights and interests have a sizeable impact on how Métis people exercise their rights in Alberta.
Given the Government of Alberta’s constitutional jurisdiction over land and natural resources, the provincial government is currently responsible for policies that describe how Métis harvesting (the right to hunt, fish and trap) and Aboriginal consultation occur in the province. These policies are based on Alberta’s interpretation of Aboriginal rights doctrines and treaties or agreements with the federal Crown.
This aspect of Canadian federalism has created some uncoordinated and, arguably, absurd results. For example, while Canada has consulted with the MNA on natural resource projects and other projects since at least 2018,[10] Alberta steadfastly refuses to consult any level of the MNA governance structure or any of the communities it claims to represent.
To date, for the purpose of rights-based constitutionally protected consultation with Métis, Alberta recognizes only the eight Metis Settlements and two non-MNA organizations claiming to represent Metis communities in Fort McKay and Lac Ste. Anne under Alberta’s credible assertion policy.[11]
Considering Alberta’s constitutional authority over land and natural resources, the Agreement is notable given it does not address Métis harvesting, land-related matters or rights.[12]
The Agreement does, however, leave the door open to future land-based negotiations. For example, the Agreement's stated purpose includes providing a foundation for resolving outstanding Métis claims related to land dispossession experienced due to Canada’s failed Métis Scrip System.[13] There is no mention of consultation beyond keeping the agreement with Canada referenced above.
It is still too early to tell how the Agreement will affect the MNA’s relationship with Alberta. Most of the impact will likely come from the future modern treaty that is yet to be negotiated.
It should be safe to say that the relationship will need to mature and evolve as the MNA asserts its new federally mandated, and inherent, jurisdiction in child welfare.
Given the Agreement fails to touch on land or land-based rights, it is difficult to see how it will change the current situation concerning issues like consultation and harvesting, which are historical points of contention for the MNA.[14]
One of the arguments Alberta uses to justify not consulting with the Métis communities represented by the MNA governance system (and its three levels of government) is a lack of clarity over who represents these communities for the purposes of consultation.[15] Perhaps the Agreement will put renewed moral and legal pressure (through the constitutional duty to negotiate) on the Alberta government to re-start the five-year-old negotiations with the MNA on a Metis Consultation Policy for Alberta. The Alberta government unilaterally ended these negotiations after the UCP was elected in 2019,[16] despite the MNA's provincially recognized authority to identify rights-bearing Métis harvesters.[17]
Image Source: https://albertametis.com/metis-rights/harvesting-rights/
Only time will tell what changes Alberta agrees to or is forced to make.
Until next time,
Team Reconcili-ACTION YEG
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[1] Crown-Indigenous Relations and Northern Affairs Canada, News Release, “Canada and Métis Nation of Alberta sign updated Métis self-government agreement” (24 February 2023) [Agreement Press Release].
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Aidan Macnab, “Out of the ‘legal lacuna’: agreement brings Metis nations another step closer to self-government”, Canadian Lawyer (24 February 2023), online: <www.canadianlawyermag.com> [https://perma.cc/9APZ-BMX2].
[8] Agreement Press Release, supra note 1.
[9] See Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12; see also Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4.
[10] See Consultation Agreement Between the Métis Nation of Alberta and The Government of Canada, 19 July 2018, online(pdf): Crown-Indigenous Relations and Northern Affairs Canada <www.rcaanc-cirnac.gc.ca> [https://perma.cc/GJE3-KYMJ].
[11] See Alberta Indigenous Relations, “Metis Consultation Contacts” (27 February 2023), online(pdf): Government of Alberta <www.alberta.ca> [https://perma.cc/MJ87-CJ67].
[12] Government of Canada, “Canada and Métis Nation of Alberta sign updated Métis self-government agreement: Backgrounder” (24 February 2023), online: Crown-Indigenous Relations and Northern Affairs Canada <https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2023/02/canada-and-metis-nation-of-alberta-sign-updated-metis-self-government-agreement.html>.
[13] Métis Nation Within Alberta Self-Government Recognition and Implementation Agreement, 24 February 2023, at arts 3.01(e), 14.04, online(pdf): Métis Nation of Alberta <www.albertametis.com> [https://perma.cc/S7UQ-3ZAD].
[14] R v Hirsekorn, 2013 ABCA 242.
[15] See Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, 2016 ABQB 713.
[16] See Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABQB 6; see also Shari Narine, “MNA takes Alberta to court over stalled Métis consultation policy negotiations”, Wind Speaker (15 June 2021), online: <www.windspeaker.com> [https://perma.cc/Z4UU-BTNP].
[17] See Métis Nation of Alberta, “Harvesting Rights” (Retrieved 1 March 2023), online: Métis Nation of Alberta <www.albertametis.com> [https://perma.cc/BR3P-DS8P].