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Métis Rights Update For: Métis National Council General Assembly March 23 & 24, 2013 By: Jason Madden, Partner Pape Salter Teillet LLP www.pstlaw.ca Harvesting Rights The “Old North West” (End of the 18th Century) The Old
North West
3 East of Ontario •There have been a few more court cases that have found no historic Métis communities or Métis harvesting rights in the East Coast. In total, there are over a dozen losses now. •The group that used to call themselves the “Labrador Métis” are now calling themselves “NunatuKavut” and pursuing their claims in the courts as a southern Inuit group – not “Métis”. •There is a “test case” in western Quebec that has an advanced cost order for the litigation, but the case appears to have stalled and has weak evidence showing a distinct Métis community. 5 R. v. Valtour, [2010] N.B.J. No. 392 “It is to this shadow community that the Vautours point as proof of the existence of a historic Métis community and upon which their claim under s. 35 is partly rooted. One of the difficulties the concept of a shadow community brings to the fore is that, if one is to identify it, the community must of necessity have had some visibility at some point in time. It cannot always have remained invisible, and I can find no solid historical indicators in Chief Augustine's report or in his testimony that point to its existence. There are remarks in the above excerpt of his testimony about Métis people in a biological sense living either among the Acadian and Mi'kmaq people but that hardly signifies the formation of a separate community. … I would agree with Dr. von Gernet that "... there must be a visible ethnicity at both ends of the period of invisibility".” -­‐ R. v. Vautour, par. 46. 6 ONTARIO
In 2004, the Métis Nation of
Ontario (“MNO”) and the Ontario
Ministry of Natural Resources
reached a Harvesting Agreement
that remain in place today.
Joint research, as a part of the
commitments in the Harvesting
Agreement, is ongoing in
Mattawa/Nipissing region. As
well, a MNO-Assistant Deputy
Minister Working Group to arrive
at common understandings on
Métis rights in Ontario has been
established.
MANITOBA
First Métis “rights recognition” agreement
achieved between Manitoba and Manitoba
Métis Federation (“MMF”) in September 2012.
Key aspects of agreement include:
1. recognizes a harvesting area that
encompasses close to 800,000 km²,
2. includes hunting, fishing, trapping,
gathering for food and domestic use,
3. relies on MMF system for identification of
eligible Métis harvesters and Métis Laws of
the Hunt for management and
conservation,
4. eligibility for MMF Harvester Card based on
national definition of Métis in MMF
Constitution (i.e., Métis Nation ancestry)
5. no “cap” on number of MMF Harvesters
cards that can be issued,
6. commits to 2 year joint research in areas
outside of recognized harvesting area and
potential reference to Manitoba Court of
Appeal if parties still disagree at the end,
7. commits to adoption of provincial
regulations consistent with agreement
and
8 Métis Laws of Hunt.
SASKATCHEWAN
Successive cases since 1995
recognizing Métis harvesting
rights in the province – Morin &
Daigneault, Laviolette,
Belhumeur.
Métis Nation – Saskatchewan
(“MNS”) and the Saskatchewan
Government signed a MOU in
2009 agreeing to negotiate a
harvesting agreement based on
the existing cases and jointly
agreed to principles.
Negotiations between MNS and
the provincial government are
ongoing with the hopes to have
an agreement in place for 2014.
9 ALBERTA
Recent Alberta Court of Appeal
decision (R. v. L’Hirondelle, 2013
ABCA 12) that confirms the Alberta
Government was not required to
issue a Métis Settlement member a
fishing license without that
individual providing documentary
proof that they met Alberta
Government’s Métis Harvesting
Policy.
Métis Nation of Alberta (“MNA”)
harvesting rights test case (R. v.
Hirsekorn) argued before Alberta
Court of Appeal in February 2013.
Currently awaiting decision.
Regardless of outcome, it is likely
that this case will be appealed to
the Supreme Court of 10 Canada.
11 BRITISH COLUMBIA
Several cases that have found
insufficient evidence to establish a
rights-bearing Métis community in
the province (i.e., Howse, Nunn,
Willison cases)
Métis Nation British Columbia
(“MNBC”) continues to undertake
work on identifying a “test case” to
bring forward in the province.
Province tacitly acknowledges
Métis harvesting rights in northeastern BC (i.e., Kelly Lake area).
12 13 The “Old North West” (End of the 18th Century) The Old
North West
14 The Daniels Case Daniels v. Canada, [2013] F.C.J. No. 4 •When Canada was created in 1867, the Constitution set out what level of government (federal or provincial) has “exclusive legislative authority” for various matters. •Sections 91 (federal) and 92 (provincial) list these various government jurisdictions or responsibilities, but these lists are not exhaustive. •The courts continue to interpret these “heads of power” in a purposive and progressive manner because Canada’s Constitution is a “living tree”. 16 What is the Case About? •Section 91(24) states the federal government has “exclusive Legislative Authority” for “Indians, and Lands reserved for the Indians.” •The Daniels case is about whether Métis and non-­‐status Indians are included in s. 91(24) of the Constitution Act, 1867. This inclusion in s. 91(24) does not mean Métis are culturally “Indians”. It only means the federal government has legislative responsibility for the Métis in the same way it does for Indian peoples and the Inuit (who are culturally distinct from Indians, but are “Indians” for the purposes of s. 91(24) too). 17 Why Does Section 91(24) Matter? •The practical result of jurisdictional avoidance was to leave Métis and non-­‐status Indians vulnerable and marginalized. The federal government’s internal documents concluded that “in absence of Federal initiative in this field they are the most disadvantaged of all Canada citizens.” •The Federal Court held that “the resolution of the constitutional issue will facilitate resolution on other matters” and “[t]o the extent that the issue of the constitutional status of MNSI was something of a barrier to consultation, the declaration granted should remove such impediments.” 18 The Problems with the Daniels Case •For the purposes of s. 91(24), the Federal Court defines the Métis “as a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status.” •This definition cannot be reconciled with the history of the Métis Nation, the law (i.e., Supreme Court cases for last 40 years, Powley, the MMF case) or the practical implications of this overly broad definition (i.e., anyone with some mixed aboriginal ancestry would fall within s. 91(24)). 19 The Crown’s Obligations Are Owed To Aboriginal Collectives – Not Individuals Royal Proclamation, 1763 Constitution Act, 1867 ͻ The Royal Proclamation acknowledges the Crown’s obligations owing to “several Nations or Tribes of Indians with whom We are connected, and who live under our Protection …” ͻ For the purposes of inclusion in s. 91(24) Métis and Non-­‐Status Indians are “a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status” Constitution Act, 1982 ͻ 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. ͻ 35(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. R. v. Powley, 2003 ͻ “[t]he Métis developed separate and distinct identities, not reducible to the mere fact of their mixed ancestry” and “[t]he Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their 20 Indian or Inuit and European roots. What Next? •The federal government appealed the case on February 6, 2013 to the Federal Court of Appeal. •The “saga” on this issue is far from over and likely many parties will get involved in appeal. No appeal dates set yet. •This case is very important to the Métis Nation because it is defining who the Métis are in a part of Canada’s Constitution. 21 The MMF Case McLachlin J. in R. v. Vanderpeet “These arrangements bear testimony to the acceptance by the colonizers of the principle that the aboriginal peoples who occupied what is now Canada were regarded as possessing the aboriginal right to live off their lands and the resources found in their forests and streams to the extent they had traditionally done so. The fundamental understanding -­‐-­‐ the Grundnorm of settlement in Canada -­‐-­‐ was that the aboriginal people could only be deprived of the sustenance they traditionally drew from the land and adjacent waters by solemn treaty with the Crown, on terms that would ensure to them and to their successors a replacement for the livelihood that their lands, forests and streams had since ancestral times provided them. ” 23 24 25 Haida Nation v. British Columbia “Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.” 26 The MMF Case – The Broader Impact •The Supreme Court of Canada connects the Métis in the unsettled “western territories”, which ultimately become a part of Canada, to the same well-­‐trodden path towards reconciliation it has fleshed out for Indian and Inuit peoples over the last forty years. •This path to reconciliation, which the Métis have largely been excluded from, includes negotiations, accommodations and ultimately “just and lasting settlements” with the Crown. 27 The MMF Case – An “Indigenous People” on the Land [1] Canada is a young nation with ancient roots. The country was born in 1867, by the consensual union of three colonies -­‐-­‐ United Canada (now Ontario and Quebec), Nova Scotia and New Brunswick. Left unsettled was whether the new nation would be expanded to include the vast territories to the west, stretching from modern Manitoba to British Columbia. The Canadian government, led by Prime Minister John A. Macdonald, embarked on a policy aimed at bringing the western territories within the boundaries of Canada, and opening them up to settlement. [2] This meant dealing with the indigenous peoples who were living in the western territories. On the prairies, these consisted mainly of two groups -­‐-­‐ the First Nations, and the descendants of unions between white traders and explorers and Aboriginal women, now known as Métis. 28 1867
29 The MMF Case – Nation Building Westward [3] The government policy regarding the First Nations was to enter into treaties with the various bands, whereby they agreed to settlement of their lands in exchange for reservations of land and other promises. [4] The government policy with respect to the Métis population -­‐-­‐ which, in 1870, comprised 85 percent of the population of what is now Manitoba -­‐-­‐ was less clear. Settlers began pouring into the region, displacing the Métis' social and political control. This led to resistance and conflict. To resolve the conflict and assure peaceful annexation of the territory, the Canadian government entered into negotiations with representatives of the Métis-­‐led provisional government of the territory. The result was the Manitoba Act, 1870, S.C. 1870, c. 3 ("Manitoba Act") which made Manitoba a province of Canada. 30 1870
31 The MMF Case – Reconciliation and the Métis [66] The honour of the Crown arises "from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people": Haida Nation, at para. 32. In Aboriginal law, the honour of the Crown goes back to the Royal Proclamation of 1763, which made reference to "the several Nations or Tribes of Indians, with whom We are connected, and who live under our Protection“ … [71] An analogy may be drawn between such a constitutional obligation and a treaty promise. An "intention to create obligations" and a "certain measure of solemnity" should attach to both … Moreover, both types of promises are made for the overarching purpose of reconciling Aboriginal interests with the Crown's sovereignty. Constitutional obligations may even be arrived at after a course of consultation similar to treaty negotiation. 32 The MMF Case – Standing [44] As discussed below, the action advanced is not a series of claims for individual relief. It is rather a collective claim for declaratory relief for the purposes of reconciliation between the descendants of the Métis people of the Red River Valley and Canada. The Manitoba Act provided for individual entitlements, to be sure. But that does not negate the fact that the appellants advance a collective claim of the Métis people, based on a promise made to them in return for their agreement to recognize Canada's sovereignty over them. This collective claim merits allowing the body representing the collective Métis interest to come before the court. We would grant the MMF standing. 33 The MMF Case – More Than Compensation [5] This appeal is about obligations to the Métis people enshrined in the Manitoba Act, a constitutional document. These promises represent the terms under which the Métis people agreed to surrender their claims to govern themselves and their territory, and become part of the new nation of Canada. These promises were directed at enabling the Métis people and their descendants to obtain a lasting place in the new province. Sadly, the expectations of the Métis were not fulfilled, and they scattered in the face of the settlement that marked the ensuing decades. .
34 The MMF Case – Fiduciary Relationship •While the Supreme Court does not find that the promises in s. 31 gave rise to a specific “fiduciary duty”, it did acknowledge that the Crown and the Métis are in a “fiduciary relationship”. •Specifically, at [48], the Supreme Court states that “[t]he relationship between the Métis and the Crown, viewed generally, is fiduciary in nature. However, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations.” 35 The MMF Case – A Collective Claim [137] Furthermore, the Métis seek no personal relief and make no claim for damages or for land. Nor do they seek restoration of the title their descendants might have inherited had the Crown acted honourably. Rather, they 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. 36 The MMF Case – Reconciliation Required [140] What is at issue is a constitutional grievance going back almost a century and a half. So long as the issue remains outstanding, the goal of reconciliation and constitutional harmony, recognized in s. 35 of the Charter and underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the national fabric that s. 31 was adopted to cure remains unremedied. The unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import. The courts are the guardians of the Constitution and, as in Ravndahl and Kingstreet, cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less: see Reference re Secession of Quebec, [1998] 2 S.C.R. 217. 37 What’s Next? •A mandated and funded negotiation process or “table” between the MMF, Canada and Manitoba needs to be put into place to work towards resolving the “ongoing rift in the national fabric”. •The Métis Nation needs to assess and strategize on how the framework set out by the Supreme Court in the MMF case can be used to address other “unfinished business” between Canada and the Métis (i.e., the Dominion Lands Act and the Métis scrip system in the Prairies, promises made to Métis in treaties or treaty negotiations, etc.) 38