Written By:
Brittany Scott
Student-At-Law
Who are the Métis?
THE MÉTIS ARE ONE OF THE THREE DISTINCT ABORIGINAL PEOPLES OF CANADA recognized under section 35 of the Constitution Act, 1982.1 In 2002, the Métis National Council – General Assembly adopted a national definition of Métis as follows:
Métis means a person who self-identifies as Métis, is of historic Métis Nation ancestry, is distinct from other Aboriginal Peoples, and is accepted by the Métis Nation.
According to this definition, Métis ancestry is linked to the historic Métis nation who resided in the area of land in west central North America. Furthermore, Métis status is something that is determined by the Métis Nation, not by individual Métis communities. Alberta is the only province with a legislated Métis land base – the Alberta Métis Settlements Act, 2 and its associated regulations establish eight Métis Settlements covering 1.25 million acres in Alberta. However, not all Métis in Alberta live on Métis Settlements.
The Métis Nation of Alberta (MNA) is a democratic government of the Métis Nation, representing over 35,000 registered citizens residing within the geographic boundary of Alberta. To become a member of the MNA, an individual must demonstrate compliance with the Métis National Council General Assembly definition of Métis. The MNA is divided into Provincial, Regional, and Local Councils; each separately incorporated under the Alberta Societies Act 3. Unlike other Canadian Aboriginal governance structures where the local or Band level maintains membership, the MNA’s Provincial Council maintains a centralized membership registry.
Alberta’s Guidelines and Policy on the Duty to Consult with Métis Settlements
To facilitate understanding and provide a guideline for both the industry and Métis peoples to understand their rights and responsibilities in consultation activities, on March 31, 2016, the Government of Alberta announced the release of the Guidelines on Consultation with Métis Settlements on Land and Natural Resources Management (the Guidelines)4. The Guidelines supplement the Policy on Consultation with Métis Settlements on Land and Natural Resource Management (the Policy)5, which was released in October 2015. The Policy and Guidelines only apply to Métis communities in Alberta that are a part of the Métis Settlement regime. The Policy provides a general overview of the consultation process with Métis Settlements, while the Guidelines set out specific processes that should be followed.
However, if a rights-bearing Métis community is not on a Métis Settlement, the Government of Alberta does not have a formal consultation policy. This includes any Métis community affiliated with any level of the MNA. Instead, the Alberta Crown consults with Métis groups on a case-by-case basis if the Aboriginal Consultation Office (the ACO) concludes that a Crown decision might potentially affect credibly asserted Métis rights. The exclusion of these communities from the Policy means that the policy and procedures outlined therein are not necessarily applicable to all Métis consultation in Alberta. As such, land agents and project proponents should be aware of whether or not the Métis community that they are dealing with is subject to the Policy and Guidelines.
Alberta’s Duty to Consult with Métis Settlements
The Government of Alberta recognizes that a duty to consult with Métis Settlements exists when three factors are present:
- Alberta has real or constructive knowledge of Métis Settlement members’ harvesting or traditional land use activities;
- Alberta is contemplating a decision relating to land and natural resource management; and
- The decision has the potential to negatively affect the continued exercise of Métis Settlement members’ harvesting or traditional use activities.
When the duty to consult is engaged, it triggers a variety of responsibilities for each involved party. The Policy indicates that meeting a duty to consult requires flexibility and responsiveness. Accordingly, the Guidelines assign a level of consultation dependent upon the presence of specific factors. The Guidelines also include sector-specific consultation matrices to assist in consultation and planning based upon knowledge of the physical impacts of certain activities. The Guidelines consultation regime is similar to that established by the Government of Alberta for First Nations consultation.
The primary responsibility for the duty to consult with Métis Settlements rests with the Government of Alberta. However, ACO provides all direction, monitoring, and support of consultation activities. ACO may provide pre-consultation advice, direction during the consultation process, evaluate consultation records and issue and assessment. The Government of Alberta may also delegate to the project proponent some of the procedural aspects of consultation, which may include activities such as notification and engagement with Métis Settlements to discuss project-specific issues. Under the Guidelines, project proponents are expected to document their consultation activities, share their consultation record with Metis Settlements and provincial government staff, and report on any issues that arise.
Without a solid understanding of who the Métis peoples are, how they are governed, and how Métis rights-bearing communities are identified, project proponents run the risk of expensive litigation and significant project delays, as evidenced by the recent judicial challenges to Alberta’s Métis consultation regime in 2016.
Recent Challenges to Alberta’s Métis Consultation Regime
In 2016, the Alberta Court of Queen’s Bench (the Court) released two decisions – Métis Nation of Alberta Association of Fort McMurray Local Council 1935 v Alberta (Fort McMurray Local Council 1935)6 and Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta (Fort Chipewyan Local Council 125)7. Both the Fort McMurray Local Council 1935 (Local 1935) and Fort Chipewyan Métis Nation of Alberta Local #125 (Local 125) were Local Councils of the MNA. These decisions collectively confirm the high procedural fairness owed by ACO in determining whether the Crown’s constitutional duty to consult with Métis incorporated societies of the MNA have been triggered in relation to resource development applications.
Fort McMurray Local Council 1935
In 2014, Local 1935 asserted Métis rights in relation to five energy resource projects. To support their assertion, Local 1935 provided reports demonstrating a Métis presence in the area of the projects produced by third party consultants and university researchers. ACO requested further information, due in two weeks from the date of the request. Local 1935 requested dead-line extensions for producing the information and was granted limited extensions in some circumstances but not others. After receiving all information provided by Local 1935, ACO had not reviewed all of the records provided. ACO issues its decision letter to Local 1935 that determined that the Crown’s duty to consult had not been triggered.
The central issues on judicial review were whether Local 1935 had provided sufficient evidence to trigger the constitutional duty to consult and whether the ACO demonstrated procedural fairness in assessing the information. The Court quashed four out of five approvals granted citing various flaws in the ACO’s assessment procedure.
In overturning four approvals, the Court noted the elevated level of procedural fairness owed to the Métis incorporated societies given the administrative decision-maker role of ACO. The Court also found that ACO was in breach of procedural fairness by failing to provide sufficient time to respond to the information requested; failing to provide clear deadlines within its process; and failing to demonstrate that it fully and fairly considered the evidence submitted to it by Local 1935. Since a decision was rendered five hours after receipt of all information requests, the Court concluded that Local 1935’s information responses were either not reviewed or only reviewed cursorily. The Court reprimanded the ACO for issuing a decision on the same day.
Fort Chipewyan Local Council 125
In this case, both the Federal Crown and the project proponent each decided the duty to consult had been triggered and consulted with Local 125. Conversely, ACO decided that the duty to consult had not been triggered because Local 125 failed to demonstrate a credible assertion that it represented a rights-bearing Métis community. Local 125 sought judicial review of ACO decision. The central issue on judicial review was whether Local 125 had provided sufficient evidence to trigger the duty to consult. The Court dismissed Local 125’s application on the basis that it lacked standing and had failed to define its membership with objectively verifiable criteria.
The Court found no positive evidence that Local 125 was authorized to represent members nor that its members had a shared custom, tradition, or collective identity. The Court opined that Local 125 represented at most twenty percent of the community’s population and that this was insufficient for Local 125 to claim to be a representative of the total population of a rights-bearing group. Local 125, on the other hand, argued that it did not have to prove it represented a full community of rights-bearing Métis in order to be consulted. The Court disagreed. The Court confirmed that while an incorporated society may be able to represent an Aboriginal group, it must first demonstrate that it has been authorized to do so for the specific purpose. In addition, evidence must be provided to establish an adverse impact on Aboriginal rights before the duty to consult is triggered. As such, the Court concluded that ACO’s decision to not include Local 125 in the consultation process was acceptable and dismissed Local 125’s application for judicial review.
Implications
Alberta received a Cabinet mandate in late 2015 to engage with the MNA to develop similar processes for non-Settlement Métis in the areas of resource development and land management. However, this engagement is still in the works as of the Government of Alberta’s 2016/2017 Indigenous Relations Annual Report. In light of these cases and until such processes are fully developed, it is now evident that the Crown has taken the firm position that the duty to consult with non-Settlement Métis will be considered on a case-by-case basis and will not be triggered until the ACO decides that a rights-bearing Métis community exists and that the representative has been authorized to consult on its behalf. The Court appears to be willing to intervene if ACO acts unfairly when assessing credibly asserted Métis rights.
In Alberta, Aboriginal incorporated entities, including MNA, may be able to represent an Aboriginal group for the purposes of consultation. As such, this is something for project proponents to consider in their consultation process and planning. However, Aboriginal incorporated entities bear the burden of providing sufficient information to substantiate their claim as the authorized representatives to deal with the Crown with respect to the collective Aboriginal rights owned by the particular community. This evidence must be more than a mere credible assertion, at least in Alberta. However, the nature of the content of such evidence is not entirely clear. As such, so long as the Government of Alberta and ACO have no structured approach to consultation with Aboriginal incorporated entities, industry participants bear the risk of project approvals being judicially quashed if ACO incorrectly determines the scope of consultation.
ACO owes an elevated level of procedural fairness to Aboriginal incorporated entities as an administrative decision-maker. Given this standard, these decisions highlight the need for ACO and regulatory bodies to collaborate on project assessment timelines to ensure the appropriate standard of fairness is met and project proponents understand the applicable timeline. These decisions highlight the need for early engagement by project proponents to ensure that ACO gets it right the first time to avoid delays that arise from judicial review, ACO reconsiderations, and a potential Crown consultation period.
Notes
- Schedule B to the Canada Act 1982 (UK), 1982, c 11.
- RSA 2000, c M-14.
- RSA 2000, c S-14.
- Available at: http://www.indigenous.alberta.ca/documents/GOA-Guidelines-Consultation-Metis-LandNaturalResourceManagement-2016.pdf?0.1898236863107831
- Available at: http://www.indigenous.alberta.ca/documents/GOA-Policy-Consultation-Metis-LandNaturalResourceManagement-2015.pdf?0.9724442686602948
- 2016 ABQB 712.
- 2016 ABQB 713.
This article is not intended to replace specific legal advice. The lawyers at Burnet, Duckworth & Palmer LLP would be happy to provide you with legal advice particular to your circumstance. Reprinted with permission. First published on May 30, 2017 at http://www.bdplaw.com/publications/. To subscribe, please go to http://www.bdplaw.com/subscribe/.
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