Out of the ‘legal lacuna’: agreement brings Metis nations another step closer to self-government

Canada will negotiate self-government treaties within the next two years

Out of the ‘legal lacuna’: agreement brings Metis nations another step closer to self-government
Jason Madden, Pape Salter Teillet LLP

The Metis in Alberta, Saskatchewan, and Ontario took another step toward self-government on Friday, signing recognition and self-government implementation agreements with the Government of Canada.

The agreements with the Metis Nation of Alberta (MNA), the Metis Nation of Saskatchewan (MNS), and the Metis Nation of Ontario (MNO) include commitments to negotiate self-government treaties with Canada in the next two years.

Through the agreements, Canada officially recognizes that the MNA, MNS, and MNO are the official Indigenous governments of the Metis communities they represent. The agreements acknowledge these Metis communities are successors to the historic Metis Nation, that these communities hold the inherent right of self-government recognized and affirmed by s. 35 of the Constitution Act 1982, and that the MNA, MNS, and MNO have law-making powers in the areas of citizenship, leadership selection, and government operations. The agreement also recognizes the MNA, MNS, and MNO are governing bodies for the purposes of Bill C-92, the federal legislation which recognized Indigenous self-government in child protection and family services.

“It's one step closer to where I believe the Metis Nation in Alberta has been trying to get for the last 94 years,” says MNA President Audrey Poitras. “It's all about recognition and it's all about reconciliation, of making sure that as one of the Indigenous people within Canada, we do have that recognition and we are equal to the other Indigenous peoples.”

Ottawa will soon introduce a bill to provide a “legislative anchor” for the future treaties, and to affirm the recognition in law, says Jason Madden, a Metis lawyer and legal counsel for the MNA.

The recognition of Metis laws and governance structures has been the “missing piece” for the Metis, he says.

Throughout Canadian history, the Metis have existed in a “legal lacuna,” wrote former Supreme Court of Canada Justice Beverley McLachlin in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37. “Although widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities, the law remained blind to the unique history of the Métis and their unique needs,” she said.

“The Metis have lived in this ‘legal lacuna’, this legal gap, for almost 200 years because there has been no legislation and there has been no recognition,” says Madden. “And now we're hoping we're going to be able to close the gap.”

Over the years, the Metis Nation’s pursuit of recognition and self-government has been like Lucy holding the football for Charlie Brown, only to pull it away at the last second, he says.

It began with the inclusion of s. 35 the Constitution in 1982, which recognized and affirmed Aboriginal and treaty rights. The constitutional conferences which followed failed to achieve a favourable result for the Metis. They had another chance in 1992, when the Metis Nation Accord was included in the Charlottetown Accords. But those accords were ultimately scrapped.

“We get close in Kelowna,” says Madden, of the 2005 Kelowna Accord. “Then, that gets pulled.”

But over the last two decades, it has been the courts where the progress toward legal recognition and self-government has occurred, he says.

Madden’s first court appearance was in 2003 at the SCC in R. v. Powley, 2003 SCC 43, a case which confirmed that the Métis are “a full-fledged rights-bearing Indigenous people who hold rights protected by s. 35.,” he says. Then in 2013, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 confirmed that the Metis’ outstanding land claims needed to be addressed. The 2016 SCC ruling, Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, confirmed that Canada has a constitutional responsibility to treat the Metis as it does Inuit and First Nation peoples.

“Over the last 20 years, the Supreme Court of Canada (SCC) has handed down a series of Métis ‘wins’ that have directed governments to finally negotiate on Métis rights, self-government and claims where rights-bearing communities exist from Ontario westward,” says Madden.

“By and large, Canada has historically resisted negotiating treaties with the Métis based on false assumptions that Métis do not collectively hold rights and interests that need to be addressed in the process of nation-building. The commitment to negotiating a self-government treaty with Alberta Métis and other Métis governments reverses that positioning.”

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