Exploratory Discussions On Advancing Reconciliation For: Mtis - - PowerPoint PPT Presentation

Exploratory Discussions

On Advancing Reconciliation

For: Métis Nation of Alberta August 11, 2017 - Grande Prairie, AB By: Pape Salter Teillet LLP www.pstlaw.ca

Historical Context

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1867

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Constitution Act, 1982 A False Start

The Constitution Act, 1982

• 35. (1) The existing aboriginal and treaty

rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

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The Promise of a Negotiated Settlement

…s. 35(1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights. The strong representations of native associations and other groups concerned with the welfare of Canada's aboriginal peoples made the adoption of s. 35(1) possible and it is important to note that the provision applies to the Indians, the Inuit and the Métis. Section 35(1), at the least, provides a solid constitutional base upon which subsequent negotiations can take place. Sparrow, SCC, p. 1105

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The Métis Legal Odyssey

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Reconciliation with the Métis Nation: “Just & Lasting Settlement”

Métis Section 35 Rights (Powley-2003) Outstanding Claims against the Crown (MMF-2013) Jurisdiction for dealing with the Métis (Daniels-2016)

Métis s. 35 Rights Powley

The Constitution Act, 1982

• 35. (1) The existing aboriginal and treaty rights of the

aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

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Recognition & Promise

Members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under s. 35(1). … In the longer term, a combination of negotiation and judicial settlement will more clearly define the contours

• f the Métis right to hunt, a right that

we recognize as part of the special aboriginal relationship to the land. Powley, SCC, at para. 50 & 53

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Métis Claims Against the Crown Manitoba Métis Federation

Rejection of MMF Land Claim—1981

Please find enclosed the Government’s response to your land claim submission, as prepared by our legal advisors. You will note it is their considered opinion that the claim as submitted does not support a valid claim in law nor would it justify the grant of further funds to research the issue further.

• Letter from Canada

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Pursuit of Negotiations

[The MMF] seek a declaration that a specific obligation set

• ut in the Constitution was not fulfilled in the manner

demanded by the Crown’s honour. They seek this declaratory relief in order to assist them in extra-judicial negotiations with the Crown in pursuit of the overarching constitutional goal of reconciliation that is reflected in s. 35 of the Constitution Act, 1982. MMF, SCC, para. 137

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Declaratory Relief

We conclude that the appellants are entitled to the following declaration: That the federal Crown failed to implement the land grant provision set out in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown. MMF, SCC, para. 154

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Métis Claims in Alberta

• Scrip
• Saint-Paul-des-Métis
• Rescinded Colonies:
• Touchwood/Seibert

(1940)

• Marlboro (1941)
• Cold Lake (1956)
• Wolf Lake (1960)
• Cold Lake Air Weapons Range
• Jasper & Wood Buffalo Nation

Parks

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Jurisdiction for Métis Daniels

The Constitution Act, 1867

91. It is hereby declared that the exclusive Legislative Authority of the Parliament

• f Canada extends to all

Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, ... (24) Indians, and Lands reserved for the Indians.

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Federal Responsibility

Non-status Indians and Métis are “Indians” under s. 91(24) and it is the federal government to whom they can turn. Daniels, SCC, para. 50 Haida, Tsilhqot’in, and Powley already recognize a context-specific duty to negotiate when Aboriginal rights are engaged. Daniels, SCC, para. 56

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Ministerial Special Representatives

Canada should develop a reconciliation process to support the exercise of Métis section 35(1) rights and to reconcile their interests. Eyford Report, Recommendation #9 It is recommended that Canada either amend its existing Comprehensive Land Claims and Specific Claims Policies, or develop a new policy, that expressly addresses Métis Section 35 rights claims and related issues, and that the basis for such amended policies or a new policy be founded on the legal principles of reconciliation and the honour of the Crown. Isaac Report, Recommendation #9

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Breakthrough Exploratory Discussions

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Stage 1

• Filing of a ‘Statement of

Claim’ by Aboriginal Group

Stage 2

• Acceptance of ‘Claim’ for

Exploratory Discussions

Stage 3

• Formal Negotiations on

‘Claim’ based on a Framework Agreement with Subject Matters

Stage 4

• Negotiations based on

Framework Agreement & Initialing of Agreement-in- Principle (“AIP”)

Stage 5

• Negotiation of Final

Agreement and Ratification Process

Stage 6

• Implementation of Final

Agreement

Canada’s Six Stage Claims Process

MNA-Canada MOU on Advancing Reconciliation

• 1. The Parties will establish and participate in an

exploratory discussion table.

• 2. The objective of the exploratory discussion table will be

to develop a mutually-acceptable framework agreement to serve as the basis for negotiations to advance reconciliation with Métis in Alberta as represented by the MNA.

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Powley

• Section 35 Rights

Recognition

• Harvesting
• Consultation
• Other

MMF

• Outstanding

Claims

• Compensation
• Land

Daniels

• Self-Government
• Nation-to-Nation

Relationship

• MNA Constitution
• Self-Government

Agreement

• Métis Jurisdiction

What is Self-Government?

Self-Government

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Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. UNDRIP, art. 4

Inherent: Rooted in emerge of Métis Nation as a distinct Aboriginal people Collective: Held and exercised by Métis citizens—together Multifaceted: Branches into multiple aspects of Métis citizens’ lives

Métis Self-Government: Roots

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History Customs Traditions Peoplehood Language Stories

Métis Self-Government: Trunk

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Nationhood Aboriginal Rights Scrip Self-Determination Claims re Federal Lands

Métis Self-Government: Branches

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MNA Law-Making MNA Judiciary Education Health Housing Harvesting Consultation MNA Executive Citizenship Land Funding

Negotiating Métis Self-Government

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• Legislation
• Policies
• Programs
• Treaty
• Agreements
• Constructive

Arrangements

• MNA Constitution
• MNA Laws
• MNA Policies

Métis Nation of Alberta Government-to-Government Canada & Alberta

Negotiating Métis Self-Government

Métis Nation of Alberta’s Jurisdiction Federal Government’s Jurisdiction Alberta Government’s Jurisdiction

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Negotiating Métis Self-Government

• Citizenship

– Definition – Citizens’ Rights

• Leadership Selection
• Branches of Government

– Legislative

• Jurisdiction
• Law Making Process

– Executive

• Provincial Council
• Regional Councils
• Local Councils

– Judicial

• Jurisdiction
• Remedial Powers
• Appeal process

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• Recognition

– Recognition of Métis Government – Rights Recognition (i.e. Harvesting)

• Funding

– Transfer Payments – Taxation

• Consultation
• Coordination

– Access to Lands – Information Sharing – Joint Initiatives (i.e. Health Research

Internal Organization External Relationships

What Do Constitutions Do?

∞ Common Values ∞ Citizenship ∞ Individual Rights & Freedoms ∞ Branches of Government

• Executive
• Legislature
• Judiciary

∞ Leadership Selection ∞ Law Making Process ∞ Levels of Government

• Provincial
• Regional
• Local

∞ Amendment Process ∞ Dispute Resolution Process

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What Can Be Negotiated?

∞ Recognition

• Legal Status

∞ Funding

• Transfer Payments
• Tax

∞ Land

• Quantum
• Co-Management

∞ Rights

• Recognition
• Consultation

∞ Renewing the Relationship

• Shared Narrative
• Apology

∞ Law Making

• Jurisdiction
• Coordination

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Where Are We?

STAGE 1: Filing of Statement of Claim by Aboriginal Group STAGE 2: Acceptance of Claim and Exploratory Discussions on Framework Agreement STAGE 3: Execution of Framework Agreement (Formal Mandate to Negotiate) STAGE 4: Negotiation & Initialing of Agreement-In- Principle STAGE 5: Negotiation & Ratification of Final Agreement STAGE 6: Implementation

• f Final

Agreement

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MOU (January 2017)

What’s Next?

∞ MNA Constitution ∞ Self-Government Agreement-in- Principle ∞ Federal Consultation Protocol ∞ Process for Addressing Outstanding Claims

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Moving Forward

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Priorities?