Metis Settlements General Council v. Canada (Crown-Indigenous Relations)

Metis Settlements General Council v. Canada (Crown-Indigenous Relations)
Court (s) Database
Federal Court Decisions
Date
2024-03-28
Neutral citation
2024 FC 487
File numbers
T-589-23, T-611-23
Notes
A correction was made on March 28, 2024
Decision Content
Date: 20240328
Dockets: T-611-23
T-589-23
Citation: 2024 FC 487
Ottawa, Ontario, March 28, 2024
PRESENT: Mr. Justice Sébastien Grammond
Docket: T-611-23
BETWEEN:
METIS SETTLEMENTS GENERAL COUNCIL
Applicant
and
THE MINISTER OF CROWN-INDIGENOUS RELATIONS AND THE MÉTIS NATION OF ALBERTA ASSOCIATION
Respondents
Docket: T-589-23
AND BETWEEN:
FORT MCKAY MÉTIS NATION ASSOCIATION
Applicant
and
THE MINISTER OF CROWN-INDIGENOUS RELATIONS AND MÉTIS NATION OF ALBERTA ASSOCIATION
Respondents
JUDGMENT AND REASONS
Table of Contents
I. Background 3
A. Legal Background 3
(1) Section 35 Rights 4
(2) Identifying the Holders of Section 35 Rights 5
B. Factual Background 7
(1) The Parties 8
(2) The Genesis of the Impugned Agreement 11
(3) Bill C-53 19
II. Analysis 20
A. Recognition 21
B. Jurisdiction of the Federal Court 23
C. The Duty to Consult 28
D. Credible Assertion of a Section 35 Right 30
E. Crown Conduct 31
F. Potential Impact 32
(1) To Whom Does the Monopoly Extend? 33
(2) Scope of Monopoly 48
(3) No Effect on Third Parties? 55
(4) Choice and Critical Mass 58
G. Scope of the Duty to Consult 61
H. Fulfilling the Duty 62
I. Remedies 63
III. Disposition 65
[1] Canada and the Métis Nation of Alberta [MNA] entered into an Agreement to recognize the self-government of a collectivity called the “Métis Nation within Alberta”. The Agreement recognizes the MNA as the exclusive representative of the Métis Nation within Alberta, in particular for the exercise of its rights protected by section 35 of the Constitution Act, 1982.
[2] Canada did not consult the applicants before entering into the Agreement. The applicants each assert section 35 rights independently of the MNA. They say that they are affected by the Agreement, because it includes them against their will in the definition of the Métis Nation within Alberta and therefore grants the MNA the exclusive power to assert their section 35 rights vis-à-vis Canada. They applied for judicial review of the Agreement, based on Canada’s breach of its duty to consult them.
[3] I am granting their applications. In the ordinary meaning of its terms, the Agreement defines the Métis Nation within Alberta as including the applicants. Consequently, it grants the MNA a monopoly over the applicants’ asserted section 35 rights. What it exclusively grants to the MNA, it necessarily withholds from the applicants. It prevents the applicants from negotiating separately with Canada for the recognition of their rights, effectively forcing them to assert their rights before the courts. These effects, which are far from speculative, trigger Canada’s duty to consult the applicants before entering into the Agreement. Canada’s complete lack of consultation with the applicants requires me to quash the offending provisions of the Agreement.
I. Background [4] For a proper understanding of the issues that arise in this case, it is necessary to begin by setting out the current state of the law with respect to the constitutionally-protected rights of the Métis. I will then briefly describe the parties to this case, which are organizations that seek to represent various groups of Métis in Alberta. Next, I will provide a brief account of the negotiations that culminated with the signing of the Agreement that is the target of the present applications.
A. Legal Background [5] Section 35 of the Constitution Act, 1982 is at the heart of this case. Its first two paragraphs read as follows:
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35 (1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.
(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.
(2) Dans la présente loi, peuples autochtones du Canada s’entend notamment des Indiens, des Inuit et des Métis du Canada.
(1) Section 35 Rights [6] The aboriginal rights recognized by section 35 include harvesting rights, such as the right to hunt, trap and fish or the right to harvest wood: R v Van der Peet, [1996] 2 SCR 507; R v Sappier; R v Gray, 2006 SCC 54, [2006] 2 SCR 686 [Sappier]. Depending on the circumstances, these rights may be exercised for commercial purposes: R v Gladstone, [1996] 2 SCR 723. Aboriginal rights also include aboriginal title, which is a right to exclusive possession of land: Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 257 [Tsilhqot’in Nation]. Legislation that infringes upon aboriginal rights may be declared of no force or effect, unless the government demonstrates its justification: R v Sparrow, [1990] SCR 1075 [Sparrow]. Although aboriginal rights enjoy constitutional protection, proving them in court is often a long, costly and cumbersome process.
[7] Large-scale natural resource extraction activities may affect the exercise of aboriginal rights. However, given the difficulty of proving these rights, a timely remedy is often elusive. To give practical effect to section 35 rights in such circumstances, the Supreme Court of Canada held that governments have a duty to consult Indigenous peoples whose section 35 rights may be affected by such projects: Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 [Haida Nation]. The precise contours of this duty are described below. One of its salient features is that it arises as soon as an Indigenous people credibly asserts an aboriginal right, without the need to make full proof. It also bears noting that proponents of natural resource extraction projects often conclude impacts and benefits agreements with Indigenous peoples whose section 35 rights will be affected by their projects.
[8] For the last 30 years, it has been the policy of the government of Canada to acknowledge that section 35 encompasses some form of self-government. Courts, however, have not made extensive pronouncements on the existence and scope of an aboriginal (or “inherent”) right to self-government recognized by section 35. Recently, the Supreme Court of Canada declined to address the issue in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [the Bill C-92 Reference]. For the purposes of the present applications, I do not need to reach any definitive conclusions as to the scope of section 35 as it pertains to self-government. I need only acknowledge that the matter involves initiatives by the executive and legislative branches of the state to recognize self-government.
(2) Identifying the Holders of Section 35 Rights [9] Although they are often exercised by individuals, aboriginal rights recognized by section 35 are generally understood as being collective in nature and as belonging to a group: Sparrow, at 1112; Sappier, at paragraph 31; but see the more nuanced discussion in Behn v Moulton Contracting Ltd, 2013 SCC 26 at paragraphs 33–36, [2013] 2 SCR 227.
[10] For a long time, the only form of Indigenous government recognized by the federal government was the Indian band, a form of local government created by the Indian Act, RSC 1985, c I-5. Most Indian bands are now known as First Nations. Largely for practical reasons, it has often been assumed that local First Nations are the holders of aboriginal rights recognized by section 35. Thus, when the duty to consult laid out in Haida Nation is triggered, the usual practice is to conduct consultations with the potentially-affected First Nations. Nevertheless, courts have sometimes alluded to the possibility that it is for an Indigenous people’s legal system to determine who the proper holder of aboriginal rights is: William v British Columbia, 2012 BCCA 285 at paragraphs 132–157, aff’d by Tsilhqot’in Nation, without discussion of this point.
[11] Until recently, the federal government did not pay attention to Métis claims and did not even recognize that the Métis fell under its constitutional jurisdiction. For this reason, there is no legislation similar to the Indian Act. While the enactment of section 35, in particular its paragraph (2), was a victory for the Métis, issues of definition and representation remained unsettled. There was no accepted definition of which individuals could exercise Métis rights and of which Métis collectives were the holders of section 35 rights.
[12] The Supreme Court of Canada brought some clarity to these issues in R v Powley, 2003 SCC 43, [2003] 2 SCR 207 [Powley]. In particular, it found that it was sufficient for individual claimants to show that they were members of a “Métis community”, defined as “a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life”: Powley, at paragraph 12. It did not find it necessary to decide whether the Métis community at issue, located in and around Sault Ste. Marie, was part of a larger entity.
[13] In the wake of Powley, courts have begun to address the issue of what a Métis rights-holding community is. While the structure of the test for aboriginal rights tends to focus the inquiry on a localized community, courts in Saskatchewan and Manitoba have identified Métis communities at a regional level: R v Laviolette, 2005 SKPC 70 at paragraph 30; R v Belhumeur, 2007 SKPC 114 at paragraph 167; R v Goodon, 2008 MBPC 59 at paragraphs 46–48. In R v Hirsekorn, 2013 ABCA 242 at paragraphs 62–64 [Hirsekorn], the Alberta Court of Appeal accepted that Métis rights could be asserted on a regional basis, but declined to decide whether there is only one Métis community spanning the Prairie provinces or several, smaller regional communities. The case was decided on another issue. In R v Boyer, 2022 SKCA 62, the Saskatchewan Court of Appeal ordered a new trial to allow the defendants to argue that a Prairie-wide Métis community can assert section 35 rights.
[14] The Supreme Court in Powley also discussed the need for a better definition of individual membership in Métis communities. While it did not purport to lay out a rigid definition, it emphasized “three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s. 35: self-identification, ancestral connection, and community acceptance” (at paragraph 30).
B. Factual Background [15] I can now turn to a description of the parties and the manner in which they asserted their section 35 rights and negotiated with Canada for their recognition.
(1) The Parties [16] The origins of the Métis Nation are well known. In Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 at paragraph 5, [2011] 2 SCR 670, the Supreme Court of Canada provided the following summary:
The Métis were originally the descendants of eighteenth-century unions between European men — explorers, fur traders and pioneers — and Indian women, mainly on the Canadian plains, which now form part of Manitoba, Saskatchewan and Alberta. Within a few generations the descendants of these unions developed a culture distinct from their European and Indian forebears. In early times, the Métis were mostly nomadic. Later, they established permanent settlements centered on hunting, trading and agriculture. The descendants of Francophone families developed their own Métis language derived from French. The descendants of Anglophone families spoke English. In modern times the two groups are known collectively as Métis.
[17] Because Parliament did not enact comprehensive legislation regarding the Métis and did not impose membership criteria and local political structures as it did for First Nations, the Métis were left to organize themselves politically. They did so at the local, regional and provincial level and, beginning in 1983, at the national level. Three organizations representing Métis are parties to the present proceedings.
(a) Métis Nation of Alberta [18] The Métis Nation of Alberta [MNA] was founded in 1932 under the name of Association des Métis d’Alberta et des Territoires du Nord-Ouest, and later the Métis Association of Alberta. One of the MNA’s early achievements was to secure a land base for the Alberta Métis, then known as “colonies” and now as “Settlements”. These Settlements and their governance are described in the next section.
[19] Generally speaking, the MNA represents its membership politically, in particular in their relations with the governments of Canada and Alberta. It also offers a range of services to Métis individuals, for example with respect to health, housing, and child and family services. The MNA has a provincial governing structure, regional districts and “locals”. The MNA is also a governing member of the Métis National Council [MNC], an organization representing the Métis Nation at the national level.
[20] After the Supreme Court issued its decision in Powley, calling for more structured and objective criteria for membership in Métis communities, Canada provided the MNA with funding to develop a registry of Métis citizens. The MNA is the only organization in Alberta that received such funding. The MNA currently has approximately 57,000 registered members. The Government of Alberta relies on the MNA registry as one manner of identifying Métis persons who have harvesting rights protected by section 35 of the Constitution Act, 1982.
(b) Metis Settlements General Council [21] Alberta is the only Canadian province to have set aside a land base for its Métis population, through legislation enacted in the 1930s. As mentioned above, it created what was then known as Métis “colonies”. The Alberta Federation of Métis Settlements was created in the 1970s to represent the colonies’ interests. In the 1980s, discussions with the Government of Alberta led to the signing of the Métis Settlements Accord and an overhaul of the legislation, the main piece of which is the Metis Settlements Act, RSA 2000, c M-14.
[22] The Metis Settlements Act sets aside land for eight Métis Settlements. Each Settlement is governed by an elected council and is represented in the Metis Settlements General Council [MSGC], the applicant in one of the present proceedings. The MSGC is the successor to the Alberta Federation of Métis Settlements. The legislation grants powers to both the MSGC and each Settlement council, dealing broadly with the management of Settlement land.
[23] Sections 74–95 of the Metis Settlements Act regulate membership in the Métis Settlements. Despite certain differences, the criteria for membership in the MNA and in a Métis Settlement are broadly similar. For example, status Indians are excluded in both cases. As a result, one can be a member of both the MNA and a Métis Settlement. At the hearing, the parties informed me that a large proportion of Settlement members are also registered with the MNA, although the evidence does not reveal a precise figure.
[24] According to the Métis Harvesting in Alberta Policy, effective as of 2019, the Government of Alberta recognizes membership in a Métis Settlement as sufficient proof of Métis self-identification for the purposes of exercising aboriginal rights protected by section 35.
[25] The parties have made a number of assertions regarding the links, or lack thereof, between the Métis Nation within Alberta and the Métis Settlements or between the MNA and MSGC. For the purposes of deciding the MSGC’s application, it is not necessary for me to assess the nuances of the historical relationship between the parties.
(c) Fort McKay Métis Nation Association [26] The Fort McKay Métis Nation describes itself as the successor to a historic Métis community that arose when French Canadian fur traders were present in northeastern Alberta in the late 18th and early 19th centuries. The community is located approximately 45 km north of Fort McMurray. It currently has 116 members, mainly from three families.
[27] From the 1990s, Fort McKay Métis Nation was represented by two successive MNA Locals, Local 122 and then Local 63. In the early 2010s, however, disagreements arose regarding membership, representation and consultation issues. Fort McKay Métis Nation established an organization independent from the MNA, now called the Fort McKay Métis Nation Association [FMMNA or Fort McKay], one of the applicants in these proceedings. In 2018, the Fort McKay Métis Nation decided to dissolve MNA Local 63 and to completely dissociate itself from the MNA. This led to protracted litigation in the Alberta courts between the MNA and FMMNA, which need not be described in detail here. The evidence suggests that there are other local Métis communities in a similar situation, although they are not parties to the present applications.
(2) The Genesis of the Impugned Agreement [28] In Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 SCR 99 [Daniels], the Supreme Court declared that the Métis are comprised within Parliament’s jurisdiction over “Indians, and Lands reserved for the Indians” in section 91(24) of the Constitution Act, 1982. In the wake of that decision, Canada began negotiating for the recognition of Métis rights under federal jurisdiction, including rights to self-government.
[29] In anticipation of the Daniels decision, Canada commissioned Mr. Thomas Isaac to meet with various Métis organizations and other stakeholders to “map out a process for dialogue on Section 35 Métis rights.” In his report, among other things, Mr. Isaac recommended that Canada engage with the Métis in the development of a section 35 Métis rights framework. For this purpose, he recommended that “[t]he MNC and its Governing Members [including the MNA], along with the Métis Settlements and the Métis Settlements General Council should be core to any federal engagement on these matters.” He also suggested that other organizations who assert section 35 rights should be invited to participate in the dialogue.
(a) The MNA’s Negotiations with Canada [30] The MNA and Canada began negotiations that first led to a Memorandum of Understanding, signed on January 30, 2017, which committed the parties to exploratory discussions. Interestingly, it contains the following provision:
The Parties recognize the unique history and jurisdictions of the Métis Settlements General Council and the eight Alberta Métis Settlements (collectively the “Métis Settlements”), as defined by the Metis Settlements Act, RSA 2000, c M-14, as well as the importance of having the Metis Settlements’ participation in a process to advance reconciliation, and will, when and where appropriate, identify mutually agreeable mechanisms for the Métis Settlements to contribute to or potentially participate in the exploratory discussion table.
[31] As will later become clear, the aspiration expressed in this provision was not realized.
[32] On November 16, 2017, the parties entered into a Framework Agreement setting a roadmap for comprehensive negotiations addressing a wide range of issues. The Framework Agreement is based on the premise that the MNA represents an entity called the “Métis Nation within Alberta,” not precisely defined.
[33] On June 27, 2019, the MNA and Canada signed the Métis Government Recognition and Self-Government Agreement. Section 1.01 of this agreement contains the following definition:
“Métis Nation within Alberta” means the Metis collectivity in or of the Province of Alberta that is comprised of the Members of the MNA, or, as the case may be, the Citizens of the Métis Government, who collectively hold the right to self-government as set out in this Agreement;
[34] This agreement sets out a process leading to the federal legislative recognition of a government for the Métis Nation within Alberta. It is not necessary to describe all the components of this process. It is sufficient to mention that it includes the development of a Constitution for the Métis Government and the enactment of legislation implementing a future intergovernmental relations agreement.
(b) The MSGC’s Negotiations with Canada [35] On its part, the MSGC initiated discussions with the Department of Crown-Indigenous Relations in the summer of 2016. In 2017, in the course of these discussions, the Senior Assistant Deputy Minister expressed a preference for a “province-wide” solution. The MSGC reacted vigorously to this proposal and asserted that the Métis settlements are holders of section 35 rights and that the MNA does not represent them.
[36] These discussions led to a Memorandum of Understanding dated December 14, 2017 and to a Framework Agreement dated December 17, 2018, aimed at developing a “government to government relationship”. The process laid out by this agreement included “exploring the intent and scope of section 35 rights . . . of Settlement members”, although Canada did not take a position regarding those rights. Moreover, the parties to the Framework Agreement recognize the following as a principle informing the negotiation of future agreements:
2.1.2 Recognition of the MSGC as the political governing body of the Metis Settlements, which is separate and apart from the Metis National Council and its affiliates, including the principle that MSGC is the appropriate government to engage with on collaborative policy development that affects the Metis Settlements.
[37] On a number of occasions during these discussions, the MSGC asserted to Canada that the Métis Settlements are “Powley-compliant”, in the sense that they are communities holding section 35 rights, that they are not represented by the MNA and that Canada cannot recognize the MNA as the sole representative of the Alberta Métis for the purposes of section 35 rights.
(c) Fort McKay Métis Nation’s Assertions [38] Contrary to the MNA and MSGC, Fort McKay has not engaged in negotiations with Canada. Rather, it sought recognition from the Alberta government, mainly for the purposes of exercising section 35 harvesting rights, and consultation and accommodation.
[39] In this regard, Fort McKay was one of the communities Alberta recognized as a “historic and contemporary Métis community” for the purposes of its 2007 Métis Harvesting Policy.
[40] Moreover, Fort McKay sought recognition pursuant to Alberta’s 2019 credible assertion process. In essence, to determine which Métis communities need to be consulted before approving resource extraction projects, Alberta conducts an advance review of evidence regarding the existence of a Métis community and its asserted aboriginal rights. The outcome of the process, however, does not constitute a final determination of rights. On February 13, 2020, Alberta’s Department of Indigenous Relations recognized Fort McKay’s credible assertion of aboriginal rights. The MNA is seeking judicial review of this decision in the Alberta Court of King’s Bench, but the matter has apparently been kept in abeyance.
[41] Beginning in 2021, Fort McKay, together with other local Métis communities in Alberta, wrote to the Minister of Crown-Indigenous Relations to express concerns with the scope of the negotiations between Canada and the MNA. In particular, they reminded the Minister that the MNA did not represent them and could not claim authority over non-members. Fort McKay also provided the Minister with the evidence that was put forward in the Alberta credible assertion process.
(d) The MNA’s Constitution [42] In the summer of 2022, the MNA published the Otipemisiwak Métis Government – The Government of the Métis Nation within Alberta [the MNA Constitution], which contained an expanded definition of “Métis Nation within Alberta”:
2.1 The Métis Nation within Alberta includes all of its Citizens, all Métis who live within Alberta, and the Métis communities of the Territories of the Métis Nation within Alberta.
2.2 The Métis Nation within Alberta is an indivisible, indissoluble, and united Métis collectivity that is an inseparable and distinct part of the Métis Nation. This section of the Constitution cannot be amended.
[43] Thus, the Métis Nation within Alberta includes not only members of the MNA (or “Citizens”), but all persons who are considered Métis, irrespective of their registration. Beyond individuals, the definition also includes “communities”, which are associated with “Territories”. Chapter 3 of the Constitution describes five Territories, which are large regions that, taken together, cover the whole of Alberta. Moreover, section 12.5 states that the Otipemisiwak Métis Government, which will succeed the MNA, is the only organization with the mandate and authority to represent the Métis Nation within Alberta.
[44] Chapter 19 of the Constitution deals with the Métis Settlements. It contains the following provisions:
19.3 The Métis Settlements exist for the benefit of all Métis in Alberta and are an integral part of the Métis Nation within Alberta.
. . .
19.6 All Settlement Members who are eligible may register as Citizens of the Métis Nation within Alberta.
[45] On September 26, 2022, the MSGC wrote to the Minister of Crown-Indigenous Relations to express deep concerns regarding the MNA’s Constitution, especially the provisions reproduced above asserting the MNA’s right to represent all Métis living in Alberta and those concerning the Métis Settlements. Fort McKay and seven similarly situated local Métis communities also wrote to the Minister to express similar concerns.
[46] On November 2, 2022, the MNA’s president wrote an open letter to Métis Settlement members regarding the proposed MNA Constitution. It included a statement that “[n]othing in our Constitution impacts the rights, jurisdiction, or lands of the Métis Settlements as recognized in Alberta’s Metis Settlements Act and related legislation” and an invitation for the Métis Settlements to join the Métis Government created by the Constitution. The Constitution was officially ratified by the MNA’s members in November 2022.
(e) The 2023 Agreement [47] The MNA and Canada signed the agreement targeted by the present applications for judicial review on February 24, 2023. It is styled Métis Nation Within Alberta Self-Government Recognition and Implementation Agreement [the Agreement].
[48] MSGC and Fort McKay received two weeks’ notice of the impending signature of the Agreement, by way of a letter dated February 10, 2023 from the Senior Assistant Deputy Minister of Crown-Indigenous Relations. I will return to this letter later in these reasons.
[49] The Agreement is a binding contract. However, it does not purport to be a definitive statement of the relationship between Canada and the Métis Nation within Alberta, as represented by the MNA. Rather, it envisions the conclusion of a treaty. The Agreement is not itself a treaty.
[50] I will not endeavour to provide a detailed analysis of the contents of the Agreement. Rather, I will summarize the features that are directly relevant to the present matter. In broad strokes, the Agreement can be described as a recognition of certain aspects of the Métis Nation within Alberta’s right to self-determination and self-government. In this regard, Chapter 8 provides for the recognition of “internal” aspects of self-government, including citizenship, political structures, the selection of leaders and financial management. The intention appears to be that other aspects of self-government will be recognized when a treaty is negotiated. Chapter 11 provides that legislation will be introduced in Parliament, before any treaty is concluded, recognizing the Métis Nation within Alberta’s right to self-determination and self-government and confirming that the Métis Government (in effect, the MNA or its successor) is exclusively mandated to represent the Métis Nation within Alberta. Moreover, the legislation will provide that any treaty is given effect upon its signature.
[51] Of particular importance for the present matter is the definition of Métis Nation within Alberta. In the Agreement, it includes not only registered citizens of the MNA, but also “Métis communities”, which may be comprised of citizens and non-citizens. Moreover, section 6.06 grants the Métis Government (or the MNA) a right of exclusive representation of the Métis Nation within Alberta, with respect to self-government generally (not only its “internal” aspect), consultation and accommodation regarding section 35 rights and “outstanding collective claims”, in particular those related to the scrip system. These provisions will be analyzed in detail in a later part of these reasons.
(3) Bill C-53 [52] Pursuant to the promise made in the Agreement, the Minister of Justice tabled Bill C-53 in Parliament on June 21, 2023. Its long title, An Act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan, to give effect to treaties with those governments and to make consequential amendments to other Acts, reveals, in reverse order, the Bill’s two main components.
[53] First, sections 5 to 7 provide for the statutory validation of treaties to be concluded between Canada and certain Métis governments. Other than the fact that they contemplate the validation of future treaties instead of treaties that have already been signed, these provisions closely follow the language used by Parliament to validate previous treaties; see, for example, the Nisga’a Final Agreement Act, SC 2000, c 7; or the Nunavik Inuit Land Claims Agreement Act, SC 2008, c 2.
[54] Second, sections 8, 8.1 and 9 provide for the recognition of Métis governments. In particular, subsection 8(1) does not depend on the conclusion of any treaty. It states that
8 (1) The Government of Canada recognizes that a Métis government set out in column 1 of the schedule is an Indigenous governing body that is authorized to act on behalf of the Métis collectivity, including its citizens, set out in column 2 opposite that Métis government and that the Métis collectivity holds the right to self-determination, including the inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982.
8 (1) Le gouvernement du Canada reconnaît que le gouvernement métis dont le nom figure dans la colonne 1 de l’annexe est un corps dirigeant autochtone autorisé à agir pour le compte de la collectivité métisse, y compris ses citoyens, dont le nom figure dans la colonne 2 en regard de ce gouvernement et que cette collectivité est titulaire du droit à l’autodétermination, y compris le droit inhérent à l’autonomie gouvernementale reconnu et confirmé par l’article 35 de la Loi constitutionnelle de 1982.
[55] In the schedule to the Bill, the MNA is listed as a Métis government in column 1, and the corresponding Métis collectivity in column 2 is the Métis Nation within Alberta.
[56] At the time of writing, Bill C-53 has received second reading in the House of Commons. It was also studied and amended by the Standing Committee on Indigenous and Northern Affairs.
II. Analysis [57] I am allowing the applications and quashing the offending provisions of the Agreement. I find that the Agreement defines the Métis Nation within Alberta in a manner that includes the applicants against their will and that the exclusive powers of representation it gives the MNA will necessarily affect the applicants’ asserted section 35 rights. Therefore, Canada had a duty to consult the applicants before signing the Agreement. Instead of consulting, however, Canada kept the applicants in the dark and provided inaccurate information regarding the scope of the Agreement. This cannot count as consultation.
[58] In the following pages, I will begin by explaining the concept of recognition, which is a recurring theme of this case. I will then address an objection to the jurisdiction of the Court. Next, I will describe the framework for the analysis of claims based on an alleged failure to comply with the duty to consult. I will apply this framework to the facts of the case, first by showing that a duty to consult was triggered, then by showing that no meaningful consultation took place. Lastly, I will determine the appropriate remedy.
[59] As they raise substantially the same issues, the MSGC’s and Fort McKay’s applications will be analyzed together. The MSGC also made submissions regarding Canada’s duty to negotiate honourably. Given that I can dispose of the case based on the duty to consult, it is not necessary to address these submissions.
A. Recognition [60] The Agreement at issue in this matter is styled a “recognition” agreement. In its submissions, the MNA emphasized this feature of the Agreement and sought to derive certain legal consequences from it. It is therefore useful to clarify the meaning of this concept at the outset of the analysis.
[61] In its broadest legal sense, recognition means ascribing legal consequences to something that one does not create or giving effect to a legal situation that finds its origin in a different legal system. Words such as “pre-existing” or “inherent” are often used to convey this idea.
[62] Two dimensions of recognition are present in the Agreement. First, section 35 rights, most importantly self-government, are said to be inherent, in the sense that they exist independently of their recognition by the Agreement. The Agreement recognizes them and sets out certain modalities of their implementation, but does not create them. Second, Indigenous communities pre-exist legislation that grants them rights or status. In this sense, recognition is the process by which the state chooses the Indigenous communities whose rights it will acknowledge, as well as the identity of the bodies the state will acknowledge as representing them. In both cases, by resorting to the legal technique of recognition, the Agreement is based on the idea that Indigenous communities and their rights find their legitimacy in Indigenous legal orders instead of Canadian law.
[63] Usually, courts recognize rights or legal situations, while the legislative and executive branches of the state create them. Recently, however, Parliament has adopted legislation that recognizes self-government, instead of creating Indigenous governments and delegating discrete powers to them: An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, at s 18; see also the preamble to the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14. The Agreement at issue in this case uses the same legal technique. In the Bill C-92 Reference, at paragraphs 77–78, the Supreme Court noted that the enactment of recognition legislation may provide a solution that is quicker and broader in scope than asking the courts to recognize rights on a piecemeal basis. Proceeding by way of agreement offers similar benefits and formally integrates Indigenous agency in the process.
[64] While recognition is branded as progress, one must not forget that a significant aspect of the process is that the legislative or executive branches of the state choose which Indigenous communities or which rights to recognize. Given current realities, granting or withholding recognition has significant impacts on a community’s ability to exercise its rights. Even though a community can theoretically resort to the courts, legislative and executive recognition is “very meaningful on the ground”: Bill C-92 Reference, at paragraph 60.
[65] There are few legal rules governing recognition of Indigenous peoples by the executive. The lack of a structured framework such as the one proposed by the Royal Commission on Aboriginal Peoples (Report, vol 2, recommendation 2.3.27) may give the impression that recognition is largely discretionary, like the recognition of one state by another in international law. In the Indigenous context, however, there may be circumstances in which recognizing rights to one Indigenous community affects the exercise of another community’s section 35 rights. To that extent, decisions concerning recognition are amenable to judicial review in the same manner as other decisions affecting section 35 rights.
B. Jurisdiction of the Federal Court [66] I can now turn to the MNA’s objection to this Court’s jurisdiction to hear the present applications. Based on Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40, [2018] 2 SCR 765 [Mikisew], the MNA argues that the Agreement is inextricably intertwined with the legislative process, to which the duty to consult does not apply and over which the Court has no jurisdiction.
[67] The Attorney General concedes that this Court has jurisdiction to decide the present applications. In spite of this admission, however, I must satisfy myself that I have jurisdiction: Deegan v Canada (Attorney General), 2019 FC 960 at paragraph 214, [2020] 1 FCR 411, aff’d 2022 FCA 158.
[68] In Mikisew, the Supreme Court of Canada held that the duty to consult does not apply to the adoption of legislation. Moreover, the Court stated that steps preliminary to the adoption of legislation, for example, policy development, discussions in Cabinet and the drafting process, would also be immune from the duty to consult: Mikisew, at paragraphs 34–40 (Karakatsanis J), 116–121 (Brown J), 160–168 (Rowe J). This immunity is meant to give effect to the separation of powers and the general principle that courts do not interfere with the inner workings of Parliament.
[69] The MNA seeks to bring the present application within this zone of immunity by pointing to the fact that the Agreement contemplates the introduction of implementing legislation, namely, Bill C-53. Hence, the Agreement would constitute a “policy choice” that precedes the enactment of Bill C-53 and that is covered by the Mikisew immunity.
[70] In my view, the MNA’s submissions overstate the links between the Agreement and Bill C-53. It is true that the Agreement contemplates the introduction of legislation in Parliament. The Agreement, however, is a binding contract that has effect independently of Bill C-53. While the preamble of Bill C-53 references the Agreement, the proposed legislation does not give the Agreement the force of law. Instead, it will give the force of law to treaties that have not yet been negotiated. In addition, as noted above, Bill C-53 recognizes that the Métis Nation within Alberta holds the right to self-government recognized and affirmed by section 35 of the Constitution Act, 1982.
[71] The present applications, however, are aimed at components of the Agreement that have effect independently of the proposed legislation. As they will not be integrated in legislation, these components cannot be described as a preliminary phase of the legislative process that this Court is powerless to review. In this regard, it does not assist the MNA to argue that the Agreement is the result of a policy choice. That phrase was used in Mikisew to describe the earlier stages of the development of legislation (see, for example, paragraph 117, Brown J). However, this does not mean that anything that can be described as a policy choice is exempted from the duty to consult. In fact, the Supreme Court stated that the duty to consult can apply to “high-level managerial or policy decisions”, some of which can certainly be described as “policy choices”: Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at paragraph 87, [2010] 2 SCR 650 [Rio Tinto].
[72] The potential effects on the applicants’ aboriginal rights that are said to trigger the duty to consult flow mainly from section 6.06 of the Agreement. This provision grants the MNA the exclusive right to represent the Métis Nation within Alberta with respect to (1) its self-government; (2) the duty to consult; and (3) historic claims. Nothing in Bill C-53 deals with items (2) and (3). With respect to item (1), self-government