“The Time Has Come”
By: Jason Madden
Jason Madden
“[T]he time has finally come for recognition of the Métis as a unique and distinct people.” In 2011, this was the Supreme Court of Canada’s ‘call to action’ to governments in a unanimous decision called Cunningham v. Alberta. For those who were paying attention, the case was a forewarning of things to come in the recently released Manitoba Métis Federation v. Canada judgment (the “MMF case”).
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 that the historic unwillingness of governments to recognize and deal with the Métis – as a distinct rights-bearing aboriginal group – had created a legal gap. The court went on to affirm that 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 the Cunningham case nor the Supreme Court’s landmark 2003 decision in R. v. Powley on Metis 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 forty 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. 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 treaties being negotiated or finalized with First Nations in northern Canada, British Columbia as well as parts of Quebec and Ontario. During this same post-Calder era, Canada initiated negotiations with the Inuit. In less than forty years, we are now witness to the claims of the Canada’s Inuit reconciled through four modern day land claim agreements in the north and the creation of Nunavut.
As the Supreme Court confirms, the Métis were also one of the “indigenous peoples who were living in the western territories” of Canada prior to the assertion of sovereignty. However, the Métis south of the sixtieth parallel have been excluded from the reconciliation processes initiated with similarly situated Indian and Inuit peoples, despite the fact that Canada has analogous jurisdiction for them as confirmed by the Federal Court in the recent Daniels v. Canada judgment. The MMF case signals that this ongoing Métis exclusion from meaningful negotiation processes cannot be sustained. Put simply, reconciliation cannot just 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, 1870, but that 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 section 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 decide, including, acting for the intervener, Métis Nation of Alberta, in the MMF case.