On the second day of the Métis Nation of Ontario (MNO) Annual General Assembly (AGA) in Peterborough, Métis lawyer and MNO legal counsel Jason Madden provided an update on Métis legal issues, including an update on Métis self-government negotiations taking place across the Métis Nation. Madden has been at the forefront of advancing Métis rights in the courts for many years, including appearing before the Supreme Court of Canada in all of the Métis rights related cases over the last 15 years. He is managing partner in the law firm Pape Salter Teillet LLP and represents Métis Nation governments and communities from Ontario westward.
Madden began with an update on recent court cases and noted a number of cases to watch in 2018. A decision from the Supreme Court of Canada, he said, on whether the Crown’s duty to consult and accommodate Aboriginal peoples applied to legislative action taken by Parliament or legislatures would likely be released soon (Mikisew Cree First Nation v. Canada). He also noted that a recent court decision from Alberta that upheld the Métis Nation of Alberta’s bylaw changes provided clarity about its authorization to represent its citizens for the purpose of Métis rights, interests and claims (McCargar v. Métis Nation of Alberta). Finally, he discussed a recent case from the Quebec Court of Appeal (R. v. Corneau) that upheld a lower court decision that there was no historic or rights-bearing Métis community in eastern Quebec. He emphasized this case was one of more than 15 cases from Quebec and the East Coast that have confirmed that simply pointing to “mixed Aboriginal ancestry individuals” in the historic record without any evidence of a distinct people, culture or collective identity emerging cannot ground a claim to Métis rights.
Madden also provided an overview of the process undertaken to get to the recently signed MNO-Ontario Framework Agreement on Métis Harvesting. This agreement more formally recognizes the MNO Harvesting Policy and Harvesting Areas, removed the dreaded “cap” on the number of Harvesters Cards the MNO can issue and sets out a process for further negotiation on issues such as mobility and arriving at a new MNO Harvesting Area map. Madden noted that it was the hard decisions made by previous Annual General Assemblies, which resulted in complete Harvester Card files being cancelled, that led to the MNO scoring a 100 per cent verification rate in the independent review of the MNO Harvesters Card system. This perfect score led to the MNO being able to negotiate a new agreement without any “cap” on Métis rights-holders obtaining a Harvesters Card.
Madden spoke on the recent significant gains made across the Métis Nation Homeland on Métis rights and self-government. He said that recent and historical developments have ushered in new opportunities for negotiations with Métis Nation governments south of the 60th parallel. In particular, he cited what he called the “trifecta of Métis law;” R. v. Powley, Manitoba Metis Federation v. Canada and Daniels v. Canada as well as recent political commitments and will at the federal level. Framework Agreements have been signed with Métis governments in Manitoba (November 2016), Alberta (November 2017) and Saskatchewan (July 2018). In December 2017, the MNO signed its Framework Agreement with Canada and Ontario that sets out a process to establish a “nation-to-nation, government-to-government relationship” between the MNO and the Crown. The objectives of this agreement are to formally recognize the MNO’s jurisdiction and law-making power as a “Métis government,” make strategic investments in areas such as health, education and housing, as well as negotiate on Métis rights and outstanding claims against the Crown.
Madden also highlighted that the MNO-Canada-Ontario Framework Agreement contemplates the potential of “regional claims” being advanced by rights-bearing Métis communities represented by the MNO, either individually or together. These claims against the Crown may relate to land related promises made to Métis communities or actions taken by the Crown that damaged Métis economies and way of life related to fisheries or flooding. Madden noted the land related petitions advanced by Métis in the Georgian Bay region as well as the promise made to Métis at Sault Ste. Marie with respect to keeping “full and free possession” of their lands will need further research and investigation. He also noted that in December 2017, the MNO and Canada already signed an agreement to advance reconciliation with the Northwestern Ontario Métis community in relation to the Treaty 3 Halfbreed Adhesion, which promised Métis lands for a village and harvesting area as well as the same benefits under Treaty 3 promised to First Nations. Madden highlighted that similar to how the Powley case was a “test case” that benefited other Métis communities, these negotiations with respect to the Treaty 3 Halfbreed Adhesion will serve as a template for other Métis communities seeking to pursue their claims.
Finally, Madden spoke about how the next steps in the MNO’s self-government discussions with the Crown will need to focus on developing a constitution based on the Métis inherent right to self-government and self-determination. This next step will require the MNO to move away from its corporate bylaws to a constitution ratified by its citizens. He highlighted that the Métis self-government metamorphosis is well on its way across the Métis Nation. Within Ontario, this process will require the MNO to clarify key questions such as exactly who it represents, including, its relationship with the larger Métis Nation, who its citizens in a future Métis government will be, how the rights and liberties of Métis citizens and Métis communities will be protected in a future government, what the MNO’s future self-government will look like, amongst many other things. He noted that while corporate bylaws can be more easily changed and groups can more easily go their own way, constitutions are forever. In order to get to a constitution, deep and meaningful consultations are required with MNO citizens, and, just as importantly, the rights-bearing Métis communities that make up the MNO need to agree to any new arrangement. Madden also noted that the MNO’s ongoing Registry Review process is key to answering the question of exactly who the MNO represents in order to develop a constitution that all parties can agree to.
Madden concluded by saying that this is an exciting time for the Métis Nation and the advancement of Métis rights and self-government from Ontario westward. He indicated that there will likely be some additional important announcement on progress made with respect to Métis negotiation in the fall of 2018 as well as the potential introduction of federal legislation dealing with the Prime Minister’s previously announced Indigenous Rights and Recognition Framework.
Click here for a pdf of Madden’s presentation.