Alberta court upholds decision to proceed with existing process for evaluating Metis rights claims

The case stemmed from negotiations aimed at developing a consultation policy for Metis in Alberta

Alberta court upholds decision to proceed with existing process for evaluating Metis rights claims

The Alberta Court of Appeal has rejected the Metis Nation of Alberta's challenge and Alberta's counter-challenge regarding the Indigenous Relations Minister's decision to proceed with an existing process for evaluating Metis rights claims instead of adopting a new consultation policy.

The Minister had decided against proceeding with a Metis Consultation Policy in favour of continuing with a Credible Assertion Process for assessing non-settlement Metis rights claims. This decision sparked controversy and legal action from the MNA, which argued that the decision was made without due notice, without a chance for the MNA to be heard, and without providing reasons, thereby breaching the honour of the Crown.

The case stemmed from extensive negotiations in 2014 between Alberta and the MNA, aimed at developing a consultation policy for Metis in Alberta. These discussions sought to establish a framework to replace the existing process for evaluating Metis rights claims. However, the new government elected in April 2019 chose not to proceed with the draft policy, leading to the contested decision.

The MNA sought judicial review, claiming that the abrupt halt to policy development without explanation violated the principles upholding the Crown's honour. In response, the Province of Alberta contended that the decision was a matter of public policy outside the scope of judicial review. The judicial review judge initially found the decision amenable to review and upheld that the honour of the Crown was engaged but not breached, asserting that the MNA received adequate procedural fairness.

In their analysis, the Court of Appeal explored the justiciability of the alleged breach of the honour of the Crown, ultimately determining that the question was within the court's purview. However, the court concluded that the discussions on policy development did not trigger a duty to negotiate as per the MNA's claims. The court emphasized that the duty to negotiate, as established in Canadian jurisprudence, pertains to settling substantive rights claims rather than developing consultation policies.

The ruling highlighted that imposing procedural obligations on developing consultation policies could deter governmental engagement with Indigenous stakeholders, counteracting reconciliation efforts. The appellate court underscored that while Alberta's decision not to develop a Métis Consultation Policy was not subject to procedural fairness obligations, the province remains constitutionally obligated to consult non-settlement Metis on specific rights claims, subject to judicial review.

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