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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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. 12
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 13
The Métis Legal Odyssey
Outstanding Claims against the Crown ( MMF -2013) Jurisdiction Métis Section for dealing 35 Rights with the Métis ( Powley -2003) ( Daniels -2016) Reconciliation with the Métis Nation: “Just & Lasting Settlement” 15
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. 17
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 of 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 18
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 20
Pursuit of Negotiations [The MMF] seek a declaration that a specific obligation set out 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 21
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 22
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 23
Jurisdiction for Métis Daniels
The Constitution Act, 1867 91. It is hereby declared that the exclusive Legislative Authority of the Parliament of 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. 25
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 26
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 27
Breakthrough Exploratory Discussions
Stage 1 Stage 2 Canada’s Six Stage Claims Process • Filing of a ‘Statement of • Acceptance of ‘Claim’ for Claim’ by Aboriginal Group Exploratory Discussions Stage 4 Stage 3 • Negotiations based on • Formal Negotiations on Framework Agreement & ‘Claim’ based on a Initialing of Agreement-in- Framework Agreement Principle (“AIP”) with Subject Matters Stage 5 Stage 6 • Negotiation of Final • Implementation of Final Agreement and Agreement Ratification Process 29
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. 30
- MNA Constitution - Self-Government Daniels - Self-Government - Nation-to-Nation Agreement Relationship - Métis Jurisdiction - Compensation - Outstanding MMF Claims - Land - Harvesting - Section 35 Rights Powley - Consultation Recognition - Other 31
What is Self-Government?
Self-Government Multifaceted : Branches into multiple aspects of Métis citizens’ lives Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters Collective : Held and exercised relating to their internal by Métis citizens—together and local affairs, as well as ways and means for financing their autonomous functions. Inherent : Rooted in emerge of Métis Nation as a distinct Aboriginal people UNDRIP , art. 4 33
Métis Self-Government: Roots Language Peoplehood Stories Traditions History Customs 34
Métis Self-Government: Trunk Claims re Federal Lands Aboriginal Rights Scrip Self-Determination Nationhood 35
Métis Self-Government: Branches Consultation Land Harvesting Citizenship Funding Housing MNA Executive Health MNA Judiciary Education MNA Law-Making 36
Negotiating Métis Self-Government Canada & Alberta Métis Nation of Alberta Government-to-Government • MNA Constitution • Legislation • Treaty • MNA Laws • Policies • Agreements • MNA Policies • Programs • Constructive Arrangements 37
Negotiating Métis Self-Government Métis Nation of Alberta’s Jurisdiction Alberta Federal Government’s Government’s Jurisdiction Jurisdiction 38
Negotiating Métis Self-Government Internal Organization External Relationships • Citizenship • Recognition Definition – – Recognition of Métis Government – Citizens’ Rights Rights Recognition (i.e. – • Leadership Selection Harvesting) • Branches of Government • Funding – Legislative Transfer Payments – • Jurisdiction – Taxation • Law Making Process • Consultation – Executive • Coordination • Provincial Council – Access to Lands • Regional Councils – Information Sharing • Local Councils – Joint Initiatives (i.e. Health – Judicial Research • Jurisdiction • Remedial Powers • Appeal process 39
What Do Constitutions Do? ∞ Common Values ∞ Law Making Process ∞ Citizenship ∞ Levels of Government ∞ Individual Rights & Freedoms o Provincial ∞ Branches of Government o Regional o Executive o Local o Legislature ∞ Amendment Process o Judiciary ∞ Dispute Resolution Process ∞ Leadership Selection 40
What Can Be Negotiated? ∞ Recognition ∞ Rights o Legal Status o Recognition ∞ Funding o Consultation o Transfer Payments ∞ Renewing the Relationship o Tax o Shared Narrative ∞ Land o Apology o Quantum ∞ Law Making o Co-Management o Jurisdiction o Coordination 41
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