In the Cunningham case, the Supreme Court recognized that for more than two centuries “the Métis have struggled . . . for recognition of their own unique identity, culture and governance.” The court acknowledged the historic unwillingness of governments to recognize and deal with the Métis — as a distinct rights-bearing aboriginal group — had created a constitutional gap. The court went on to affirm the inclusion of Métis in s. 35 of the Constitution Act, 1982 was intended to change this history of denial and neglect in concrete ways.
While neither Cunningham nor the Supreme Court’s landmark 2003 decision in R. v. Powley on Métis harvesting rights set out a clear path forward for how reconciliation should take place with the Métis, the MMF case provided an opportunity for the court to do just that. In dealing with the specific facts in the MMF case and declaring that Canada failed to implement the Métis children land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown, the highest court of the land has also now put the Métis on the same path to reconciliation it has fleshed out for First Nation and Inuit peoples over the last 40 years.
This well-trodden way forward consists of negotiation, accommodation, and, ultimately, “just and lasting settlements” that reconcile pre-existing aboriginal title, rights, and interests with the sovereignty of the Crown.
Following the Supreme Court’s seminal decision in Calder v. Attorney-General of British Columbia in 1973, which recognized aboriginal title continues to exist in various parts of the country, Canada re-engaged its treaty-making with Indian peoples where their title, rights, and interests had not yet been addressed. This has led to modern day land claim agreements being negotiated or finalized with First Nations in northern Canada, British Columbia, Quebec, and parts of Ontario.
During this same post-Calder era, Canada initiated negotiations with the Inuit. In less than 40 years, we are now witness to the claims of Canada’s Inuit reconciled through four modern day land claim agreements in the north and the creation of Nunavut.
Similar to First Nations, the Métis were one of the “indigenous peoples who were living in the western territories” of Canada prior to the assertion of sovereignty, as confirmed by the Supreme Court. However, the Métis have been excluded from the reconciliation processes initiated with First Nations and Inuit peoples, despite the fact Canada has similar jurisdiction for them as recently confirmed by the Federal Court in Daniels v. Canada.
The MMF case signals that this Métis exclusion from meaningful negotiation processes cannot be sustained. Put simply, reconciliation cannot be happening with only two of Canada’s constitutionally recognized aboriginal peoples. Canada must finally make a space at the negotiation table for Canada’s Métis.
Without question, negotiation and just settlement with the Manitoba Métis is required to address the unfulfilled promise in s. 31 of the Manitoba Act, but is just the beginning based on the new framework set out by the Supreme Court. Canada’s history with the Métis is riddled with a trail of unfulfilled promises from Ontario westward that also require reconciliation. From the promises made to the Métis in Ontario during the Robinson-Huron treaty negotiations to the Halfbreed Adhesion to Treaty #3 to the legislative promises in the Dominion Lands Act, which gave rise to the Métis scrip system that left the Métis largely landless on the Prairies, much “unfinished business” with the Métis people remains.
Of course, the changes required to current government policy will take time. Unfortunately, it may take more litigation for governments to finally come to grips with the broader implications of the MMF case. Thankfully, however, the Supreme Court has clearly set out the way forward.
Real negotiations with the Métis on issues such as land, self-government, and their existing rights and interests must begin. Just and lasting settlements, whether they are called treaties, modern day land claim agreements, or something else, must ultimately be reached with Canada’s Métis. Anything less would not achieve reconciliation or the promise of s. 35 to “the recognition of the Métis as a unique and distinct people.”
Jason Madden is a Métis lawyer and partner in the law firm Pape Salter Teillet LLP. He has been legal counsel in much of the litigation advanced on Métis rights over the last decade, including, acting for the intervener, Métis Nation of Alberta, in Manitoba Metis Federation Inc. v. Canada.