Reconciliation with the Métis: The time is here

JasonMadden1Métis lawyer and MNO legal counsel Jason Madden
provided an update about Métis rights and self-government
during the MNO’s Annual General Assembly in
Peterborough on Aug. 18. Click here to view a larger
version of this picture.

Submitted by Métis lawyer and MNO legal counsel Jason Madden 

This article originally appeared online on Canadian Lawyer's website.

Five years ago, I wrote an article for Canadian LawyerReconciliation with the Métis: The Time Has Come. On Sept. 22, the joint announcement made by Canada and the Manitoba Metis Federation, may finally signal that the time is now. 

This announcement included a commitment from Canada to transfer $154.3 million to the MMF to begin to address its outstanding constitutional grievance against the federal Crown that was recognized by the Supreme Court of Canada in 2013 and initiate formal self-government negotiations with the MMF to recognize it as an Indigenous government in Canada.

While the word “historic” is bandied around in most government announcements dealing with Indigenous peoples nowadays, this one is notable because the formal recognition of the MMF — as a Métis government — will very likely set a precedent for other Métis groups in discussions with Canada in Ontario, Saskatchewan and Alberta.

Instead of armed conflict this time, Canada’s negotiation mandate with the MMF is in response to repeated Supreme Court of Canada decisions affirming Métis rights, claims and the need for negotiations over the last 15 years. 

In 2003, Métis rights — as existing Aboriginal rights protected within the meaning of s. 35 of the Constitution Act, 1982 — were confirmed in a case called R. v. Powley

In 2013, in Manitoba Metis Federation v. Canada, the highest court in the land confirmed that Canada had breached the honour of the Crown by failing to provide the 1.4 million acres of land promised to the children of the Manitoba Métis as a part of the 1869/70 deal made with Riel’s people. 

In 2016, in a case advanced by well-known Métis leader Harry Daniels, Daniels v. Canada, the Supreme Court of Canada further confirmed that Métis are included with the term “Indians” in s. 91(24) of the Constitution Act, 1867, which grants “exclusive Legislative Authority” to Parliament for “Indians, and Lands reserved for the Indians.”

This means that Canada has always had constitutional jurisdiction to establish nation-to-nation, government-to-government relationships with the Métis in the same way as it has with First Nations and Inuit. 

This trifecta of Métis law, combined with the drive and determination of the MMF’s current elected leadership and the Trudeau government’s Indigenous agenda, led to this “historic” moment for the Manitoba Métis.

Lost in the focus of the $154.3 million to be provided to the MMF, however, is the significance of the commitment to finally recognize the MMF as the government of Manitoba Métis.  

Why this is so significant is that, unlike most First Nations who had Canada’s colonial Indian Act imposed on their traditional government structures, the very idea of Métis Nation self-government has historically been denied, dismissed or ignored. In response, over the generations, the Métis Nation has built its own democratic, self-government structures from Ontario westward to represent Métis citizens and communities. 

While these Métis Nation governments such as the MMF have been tacitly recognized by some governments and have successfully built effective program and service delivery structures for their members and communities, their inherent jurisdictions — as Métis governments — are still for the most part denied. 

Canada’s colonial legacy still looms large. Often, these Métis Nation governments are still denied, dismissed or ignored when it is politically convenient to do so. The most recent example of this can be seen with the premier of Manitoba, Brian Pallister (yes, that’s right, the premier of Manitoba) referring to the MMF as nothing more than a “special interest group” less than six months ago.

In addition, dubious “Métis” pop-up groups in Quebec and the East Coast have been able to proliferate because governments have delayed in dealing with the only recognized Métis people — the Métis Nation.

Meaningful reconciliation with the Métis Nation requires that the well-established governments of the Métis Nation finally be recognized by Canada on a nation-to-nation, government-to-government basis. Far from being “put under the thumb” of federal legislation, these self-government negotiations seek to have Métis jurisdiction and the governments Métis have painstakingly built for themselves recognized as such. 

This is why last week’s announcement is such a turning point for the Métis Nation. This formal recognition will require Canada, provincial governments and industry to come to grips with Métis governments in the same way that they deal with First Nations. 

While this will represent welcomed clarity for those who have always respected and dealt with these Métis governments, for those that have continued to deny, dismiss or ignore the reality of Métis rights and self-government, it will likely represent a shock to the system.

Irrespective of where or when these Métis Nation governments become formally recognized, this announcement breaks the reconciliation “glass ceiling” that has been in place for the Métis Nation for generations. There is no turning back now.

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 and claims from Ontario westward over the last 15 years. He is legal counsel for the MMF in its negotiations with Canada. 

Posted: Oct. 1, 2018

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