Agreements with Métis nations represent Canada finally saying ‘yes, you are government’: lawyer

Law360 Canada (March 1, 2023, 9:37 AM EST) -- Ottawa has reached an agreement with three Métis nations that puts them on an equal constitutional footing with other First Nations in Canada and establishes a path forward for negotiations on self-government, and a lawyer who was involved in the negotiations says they will go far in addressing a “legal lacuna” the Métis have found themselves in for many years.

The agreements between Ottawa and the Métis Nations of Alberta, Ontario and Saskatchewan, which were signed Feb. 24, officially recognizes them as Indigenous governments, as well as the fact they have an inherent right to self-government under s. 35 of the Constitution Act, 1982. The agreements also recognize that the three nations have jurisdiction over internal governance matters such as citizenship, elections and administration, including child and family services.

The federal government has also committed to negotiate self-government treaties between the nations and Canada in the next two years.

Crown-Indigenous Relations Minister Marc Miller said the agreements will “revitalize and transform our government-to-government relationship” with the Métis nations.

“We look forward to continuing to work in partnership with [the nations] to co-develop approaches that deliver on our shared priorities for reconciliation and support their vision of a better future for the citizens and communities the Métis government represents,” he said.

The new agreements build on a 2019 pact which acknowledged a Métis right to self-government.

Margaret Froh, president of the Métis Nation of Ontario, noted this year marks the 20th anniversary of the Supreme Court’s decision in R. v. Powley, 2003 SCC 43, which said that the Métis community near Sault Ste. Marie had a constitutionally protected right to hunt for food and set out criteria for establishing Métis rights.

“Powley was advanced by Ontario Métis to ensure we were no longer the ‘forgotten people.’ It is a testament to the hard work of our citizens and communities that we now have formal recognition of our Métis government by Canada, including a clear pathway to finally put into place our nation-to-nation, government-to-government relationship with the federal Crown through a modern-day treaty,” she said.

Jason Madden of Pape Salter Teillet LLP, who served as legal counsel to both the Métis Nation of Alberta and Ontario during negotiations, said the agreements represent the Crown finally saying “yes, you are government.”

“Canada’s historic approach has been by and large to deny that Métis have rights and not deal with them as collectives or as communities,” said Madden, who is Métis himself. “Where they do deal with them and have reached agreements, those agreements are quickly breached thereafter — and by and large Canada did not negotiate treaties with the Métis when they encountered them on the ground, as they did with First Nations.”

In Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, former Chief Justice Beverley McLachlin noted that the Métis had long existed in a “legal lacuna” of being a culturally-distinct Aboriginal people but having the law remain blind to their unique history and needs.

But Madden said the agreements show that "we are leaving that lacuna behind.”

“When you peel these agreements away and get to what they mean to people on the ground, it is affirmation that Canada recognizes the Métis as part of the Indigenous peoples of this country,” he said. “Indigenous people on the ground often feel powerless in relation to the Crown’s jurisdictions and authority, and these agreements allow for rebalancing and ensuring the Indigenous peoples have a clear role in self-determination in choosing their own identities, as opposed to someone else doing it for them.”

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