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There is no honor in the Crown.

Tansi Nîtôtemtik,

Every now and then, the Supreme Court of Canada (SCC) delivers a decision that is seemingly benign, maybe even a little uneventful. Sometimes its decisions appear to have nothing to do with Indigenous law, or section 35 of the Constitution, and yet within their judgment lies a golden nugget of constitutional jurisprudence.

The SCC delivered one such golden nugget on October 1, 2021 in their decision on City of Toronto v Ontario (Attorney General).[1] Although the case centered on an election, it addressed issues that directly speak to the unwritten principles of the Constitution, such as the honour of the Crown.[2] The SCC’s decision clearly indicated that the “unwritten constitutional principle of the honour of the Crown has been affirmed by this Court and accorded full legal force”.[3] As this statement shows, the honour of the Crown is not a new concept and has been upheld in multiple SCC decisions.[4] The constitutional jurisprudence is clear and Alberta’s Premier is well aware of the obligations the Crown has towards Indigenous peoples including the Metis. However, when the United Conservative Party (UCP) formed government in 2019 they chose to ignore the honor of the Crown in relation to the development of the Metis Consultation Policy (MCP) by scrapping it all together.[5]

On February 1, 2017, the Alberta Government and the Metis Nation of Alberta entered into a Framework Agreement (“Agreement”) whereby each party agreed to work together in nation-to-nation relationship building.[6] This was not a treaty per se, but rather an agreement between the Metis Nation of Alberta and the Province to develop a consultation policy whereby non-settlement Metis peoples would finally be granted a voice regarding their lands and rights. Other Indigenous peoples within Alberta have been granted the same accord, such as the requirement of the Province to consult First Nations when their lands or rights may be impacted. The same applies to Metis settlements. However, non-settlement Metis peoples, which are the vast majority of Metis peoples within Alberta, have not been granted the same consideration. Therefore, the very purpose of the Agreement was to “promote and facilitate the advancement of the Alberta Metis peoples... as well as promote reconciliation between Aboriginal peoples and non-Aboriginal peoples through the advancement of Metis rights” as it relates to non-settlement Metis. [7] The Agreement therefore provided a clear and concise path forward for the establishment of meaningful consultation between non-settlement Metis Peoples and the Province.

The consultation process began with the previous Conservative government, and was continued when the New Democratic Party (NDP) was elected in 2015. Together, the Metis Nation of Alberta and the NDP brought the Agreement to fruition; an agreement that symbolized a new era for reconciliation.[8] Prior to the Agreement, there was nothing in place that governed the duty to negotiate with non-settlement Metis peoples.[9] By the end of 2018 the Metis Nation of Alberta and the Province had “successfully negotiated the Metis Consultation Policy (MCP) which satisfied Alberta’s legal requirements, industry priorities, and the need to align Metis section 35 harvesting rights with Crown consultation”.[10]

The victory was short lived.

In April 2019, just a mere four months after the Province and Metis Nation of Alberta successfully negotiated the MCP, Alberta voters elected a new United Conservative Party (UCP) government with Jason Kenney at the helm.

Shortly after being elected to the Legislative Assembly, UCP member Rick Wilson (Wilson) was sworn in as Alberta’s Indigenous Relations Minister.[11] Once Minister Wilson took office he scrapped the MCP and told the Metis Nation of Alberta they would need to re-apply under the UCP’s new consultation process - Metis Credible Assertion (MCA).

The very mandate of Alberta’s Indigenous Relations Ministry is to “help build partnerships between Indigenous communities, organizations, industry and other levels of government.”[12] So it hardly makes sense for Minister Wilson to scrap the MCP which had taken years to develop. Instead, Minister Wilson’s ministry brought in a new set of requirements for the Metis Nation of Alberta to undergo, if they wanted to pursue an MCP with the new UCP government. The MCA states that in order for Metis Peoples to be considered in consultation, they must “successfully demonstrate a credible assertion of Metis Aboriginal rights”[13], which they already did with the NDP.[14] In doing this, Minister Wilson created a “parallel world of unnamed bureaucrats to analyze Metis genealogical records and second-guess” their work, which is “inconsistent with the Act and with common sense”.[15]

Minister Wilson unilaterally scrapped nearly a decade of work between the Metis Nation of Alberta and the Province, thereby unjustifiably undermining the honour of the Crown and the good faith negotiations that occured. According to Audrey Poitras, the President of the Metis Nation of Alberta, “when the UCP were elected, they terminated negotiations and threw away the Metis Consultation Policy - without warning or explanation. They acted as if the honour of the Crown has no meaning.”[16] Now, if the Metis Nation of Alberta wants to engage in consultations under the UCP government, they will need to restart the consultation process all over again, therefore wasting time, energy, and money.[17]

In June 2021, the Metis Nation of Alberta formally filed an application against the Province as a means to reverse Minister Wilson’s decision to scrap the MCP, for failing to engage with the Metis Nation of Alberta prior to making his decision. The NDP have clearly stated they support the Metis Nation of Alberta’s action in taking the Province to court and have promised to bring the MCP to fruition if they form government again.[18]

In light of the SCC’s decision in City of Toronto v Ontario (Attorney General) and the current application brought by the Metis Nation of Alberta, Alberta’s court will need to determine how to proceed given that the Province “ignored the promises the Crown made”, to the Metis Nation of Alberta, which can “no longer be ignored by the courts”. [19]

Until next time

Team ReconciliACTION YEG

[1] City of Toronto v Ontario (Attorney General), 2021 SCC 34 [Toronto].

[2] Government of Canada, “Principles Respecting the Government of Canada’s Relationshuip with Indigenous Peoples” (September 1, 2021), online: Canada’s System of Justice <,in%20all%20of%20its%20dealings%20with%20Indigenous%20peoples>.

[3] Supra note 1 at para 173; See also Beckman v Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103 at para 42; See also Haida Nation v British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 at para 16.

[4] Supra note 1.

[5] Metis Nation of Alberta - Government of Alberta, “Metis Nation of Alberta - Government of Alberta Discussions on a Metis Consultation Policy in Alberta” (December 2, 2014), online (pdf): Metis Nation of Alberta <>. [6] Metis Nation of Alberta - Government of Alberta, “Framework Agreement” (February 1, 2017), online (pdf): Metis Nation of Alberta <>.

[7] Ibid.

[8] Metis Nation of Alberta, “Metis Nation of Alberta takes Province to court for ignoring Canada’s constitution and Metis Rights” (June 14, 2021), online: Metis Nation of Alberta <>.

[9] Supra note 5.

[10] Supra note 8.

[11] Government of Alberta, “Ministry of Indigenous Relations” (2021), online: Government of Alberta <>.

[12] Ibid.

[13] L'Hirondelle v. Alberta (Minister of Sustainable Resource Development)

2013 ABCA 12, 2013 CarswellAlta 77, [2013] 2 C.N.L.R. 263, [2013] 9 W.W.R. 299, [2013] A.W.L.D. 1955, [2013] A.W.L.D. 2017, 225 A.C.W.S. (3d) 889, 275 C.R.R. (2d) 144, 53 Admin. L.R. (5th) 305, 542 A.R. 68, 566 W.A.C. 68, 81 Alta. L.R. (5th) 371

[14] Alberta’s NDP Caucus, “NDP Supports Metis Nation of Alberta Legal Action After UCP Cancels Work on Consultation Policy”, online: Alberta’s NDP Caucus <,the%20NDP%20and%20the%20previous%20Progressive%20Conservative%20government>.

[15] Government of Alberta, “Metis Credible Assertion Process and Criteria” (2021), online (pdf): Government of Alberta <>.

[16] Supra note 8.

[17] Supra note 14.

[18] Metis Nation of Alberta, “Metis Nation of Ontario and Metis Nation of Alberta Successful in Joint Intervention Before Supreme Court of Canada”, online: Metis Nation of Alberta <>.

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