Tansi Nîtôtemtik,
In today’s post, we discuss why it’s important for non-Indigenous lawmakers (both political and judicial) to understand the laws and legal traditions of the Métis Nation, given the Truth and Reconciliation Commission’s (TRC) calls to action. In doing so, I will draw on my own experience as Chief of Staff (CoS) to the Minister of Indigenous Relations (IR) in Alberta. I will also briefly describe some early Métis Nation lawmaking in an attempt to encourage readers to learn more.
The Métis Nation is a distinct Indigenous people who saw their ethnogenesis take place in what is now Manitoba (especially at Red River), Alberta, parts of British Columbia, Ontario, the Northwest Territories, and the northern United States.[1]
TRC Call to Action #48 calls on the federal government to jointly develop a Royal Proclamation of Reconciliation with Indigenous peoples that reaffirms the nation-to-nation relationship between Indigenous peoples and the Crown.[2] The proclamation should adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for reconciliation, including the right to self-government as a basic human right.[3] The proclamation is also meant to reconcile Indigenous and Crown legal orders, including integrating Indigenous laws and legal traditions in agreements.[4]
The TRC calls to action are consistent with calls from Indigenous legal academics, such as John Burrows, who say that to thrive as the truly multi-juridical country that we are, non-Indigenous lawmakers must make cultural and institutional commitments to being open to receiving Indigenous law into the Canadian legal landscape. This also includes lawmakers developing interpretive competency to know and understand Indigenous laws.[5]
For three years, as CoS to the IR Minister, I played a role in negotiations with the Métis Nation of Alberta (MNA) – as representative of the Métis Nation in Alberta. These negotiations touched on whether the MNA was a government, recognition of Métis harvesting rights, what should be considered a Métis community for the purposes of the Crown’s duty to consult, and other issues that affected how the MNA operates as a government.
During this time, officials in the IR department told me the MNA was not a “real” government (unless they were someday “recognized” by Canada). When I asked if there were any Métis legal traditions or laws that could help guide our negotiations, I was told that the MNA did not have real laws, only by-laws. A similar line of thinking can be seen in the recent MNA v Alberta decision by Alberta’s Queen’s Bench (as it then was).[6] I was also told that while Métis people may have had laws in the past, they were lost when Métis political organizations were destroyed by colonialism.
Photo Credit: Philippe Johnson
I was told something much different when I spoke to the MNA. They said that the laws and legal traditions, originally formed in places like Red River, continue to live and breathe through their institution today. This includes making major decisions through democratic votes in an assembly of the entire membership, and in the way they structure their political affiliations.
Since attending law school, I have learned a great deal more about the laws and legal traditions of the Métis Nation. This has helped me understand, retrospectively, how I could have been more respectful to upholding Métis Nation legal traditions.
As the Métis Nation grew in the 1800s, so did its sophisticated legal and political institutions.[7] With a focus on the principle of freedom, traditional governance “was highly functional with formality of office only arising when necessary”, such as when familiar social interactions were insufficient to maintain order.[8]
Informed by elements of Plains Cree, Ojibway and English customs, the “Rules of the Buffalo Hunt” became an early institution with customary and positive laws governing bison hunting expeditions.[9] One such hunting expedition in the spring of 1840 was said to include over 1000 Red River carts.[10] Laws used during the hunt were ratified in an assembly comprised of all men and women on the hunt.[11] Such laws saw the democratic election of captains who would, in turn, enforce laws concerned with the defence of the group, for example.[12]
Legal principles from the “Rules of the Buffalo Hunt” continued to be relied on as Métis communities grew and became more permanent.[13] This included the community of St. Laurent along the South Saskatchewan River, which also included the village of Batoche. St. Laurent ratified a constitution at its first assembly in 1873.[14] The community went on to pass laws in areas such as conservation, family matters, and taxation.[15]
As explained to me by the MNA, many of the early Métis Nation laws are anything but lost. They live in the laws and legal traditions of the MNA. They can also be seen to exist in some of the laws passed by the Metis Settlements in Alberta today (also called by-laws by Alberta).[16]
It is well past time that non-Indigenous lawmakers begin to recognize that Métis people had laws that worked well enough in the past and continue to do work today. To do this, lawmakers must start learning and becoming fluent in these laws and legal traditions. This is necessary, in my opinion, if the negotiation of a Royal Proclamation of Reconciliation is to be successful.
Until next time,
Team Reconcili-ACTION YEG
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[1] Christopher Gall and Brodie Douglas, Shifting the Status Quo: The Duty to Consult and the Metis of British Columbia, ed by Yvonne Boyer & Larry Chartrand (Vancouver: UBC Press, 2021) at 53.
[2] Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission of Canada: Calls to Action” (2015) at 4-5, online(pdf): National Centre for Truth and Reconciliation <www.nctr.ca> [https://perma.cc/K38W-UGKZ] [TRC].
[3] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess., No 49, Vol. III, UN Doc. A/61/49 (2008) 15 [UNDRIP].
[4] TRC, supra note 2 at 5.
[5] John Burrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010), at 6 [Burrows].
[6] Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABQB 6 [MNA v Alberta].
[7] Larry Chartrand, “We Rise Again:” Métis Traditional Governance and the Claim to Métis Self-Government, in Yale Belanger ed., Aboriginal Self-Government in Canada, 3rd ed. (Saskatoon: Purich Publishing, 2008) at 150 [Rise Again].
[8] Ibid at 151.
[9] Ibid at 151.
[10] Karen Drake, “R v Hirsekorn: Are Metis Rights a Constitutional Myth” (2013) 92 CAN B REV 149 at 167 [Drake].
[11] Rise Again, supra note 7 152.
[12] Ibid at 167-168.
[13] Ibid at 152.
[14] Ibid at 151 – 152.
[15] Ibid at 152. See also Burrows, supra note 5 at 86 – 91.
[16] Burrows, supra note 5 at 91.