EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports.
Indigenous Peoples
Duty to consult
Applications for judicial review of Métis Nation within Alberta Self-Government Recognition and Implementation Agreement (Agreement) between Canada, Métis Nation of Alberta (MNA) to recognize self-government of collectivity called “Métis Nation within Alberta” — MNA, founded in 1932, securing land base for Alberta Métis, then known as “colonies”, now as “Settlements” — Representing its membership politically, in particular in their relations with governments of Canada, Alberta — Metis Settlements Act, R.S.A. 2000, c. M-14 setting aside land for eight Métis Settlements — Each Settlement represented in applicant Metis Settlements General Council (MSGC) — Applicant Fort McKay Métis Nation Association dissociated from MNA — Métis Nation within Alberta including not only members of MNA (or Citizens), but all persons considered Métis — MNA, MSGC negotiations with Canada leading to Memorandums of Understanding — MNA, Canada signed Agreement in 2023 — Agreement binding contract — Recognizing certain aspects of Métis Nation within Alberta’s right to self-determination, self-government — Definition of Métis Nation within Alberta in Agreement including not only registered Citizens of MNA, but also “Métis communities”, comprised of Citizens, non-Citizens — Agreement, s. 6.06 granting Métis Government (or MNA) right of exclusive representation of Métis Nation within Alberta, with respect to self-government generally, consultation, accommodation regarding Constitution Act, 1982, s. 35 rights and “outstanding collective claims”, in particular those related to scrip system — Applicants argued that Canada did not consult them before entering into Agreement — Asserted Constitution Act, 1982, s. 35 rights independently of MNA — Main issue whether Canada consulted applicants when negotiating Agreement with MNA — Canada did not consult applicants — Three elements of test for finding that duty to consult exists are (1) Crown’s knowledge of potential Aboriginal claim or right; (2) contemplated Crown conduct; (3) potential that contemplated conduct may adversely affect Aboriginal claim or right — Canada conceded having knowledge of applicants’ asserted rights — First, second parts of test met — Determinative issue for third prong of test whether Agreement having potential effect on applicants’ s. 35 rights — Agreement potentially affecting applicants’ s. 35 rights, because Canada binding itself contractually to recognize MNA as sole representative of Indigenous group that includes applicants, for purposes of these rights — This accomplished through combination of two elements — First, s. 6.06 granting MNA monopoly on representing Métis Nation within Alberta with respect to self-government, duty to consult, collective historic claims in any negotiations or discussions with Canada — Second, Métis Nation within Alberta defined in way that includes applicants — Breadth of monopoly of representation provided by Agreement hinging upon definition of Métis Nation within Alberta — Definition not limiting scope of Métis Nation within Alberta to those communities who have chosen to be represented by MNA — Agreement providing no objective mechanism for ascertaining which communities have chosen to be represented by MNA or to become part of Métis Nation within Alberta — Nothing in Agreement suggesting that parties contemplated that rights-holding Métis communities could exist outside Agreement — Applicants included in Métis Nation within Alberta as defined in Agreement — Impact of Agreement on applicants’ rights most obvious, far from speculative — Canada granted someone else exclusive right to “represent, advance, and deal with” applicants’ constitutionally-protected rights — Agreement recognizing MNA to exclusion of applicants — Recognition that s. 6.06 grants MNA, withholds from applicants key to practical enjoyment of broad array of rights that s. 35 affording to Indigenous peoples — Applicants’ rights not explicitly extinguished, but applicants subsumed the Métis Nation within Alberta against their will, barring them from asserting their rights in their interactions with Canada — This having significant impact on their rights, triggering duty to consult — Monopoly granted by s. 6.06 to MNA effectively shutting applicants out from preferred venue for reconciliation — S. 6.06 amounting to commitment that Canada will not consult anyone other than MNA when contemplating conduct that has potential impacts on s. 35 rights of Métis Nation within Alberta — Impacts alleged by applicants on exercise of their s. 35 rights not speculative — Duty to consult triggered by “strategic, higher-level decisions” having downstream impact on future, more specific decisions — Agreement’s non-derogation clauses not constituting bar to applicants’ case — Canada cannot “unilaterally declare” that provisions contained in Agreement sufficient to safeguard applicants’ rights — Offending provisions of Agreement, i.e. definition of “Métis Nation within Alberta”, Chapter 6 as whole, quashed — Respondent Minister can renegotiate offending provisions of Agreement after having consulted applicants, after having accommodated their concerns if warranted — Applications allowed.
Metis Settlements General Council v. Canada (Crown-Indigenous Relations) (T-611-23, T-589-23, 2024 FC 487, Grammond J., reasons for judgment dated March 28, 2024, 67 pp.)