Métis consultation and accommodation is emerging as an increasingly important aspect of land use and natural resource development planning. Without a solid understanding of who the Métis are, how they are governed and how Métis rights-bearing communities are identified, proponents run the risk of expensive litigation and project delays. Although the duty to consult and accommodate the Métis ultimately rests with the Crown, proponents still have an important role to play. As a standardized process for consulting with the Métis has yet to be developed, project proponents are encouraged to adhere to best practices regarding notification, collaborative information exchange and consideration of Métis concerns.
The Emerging Issue Of Métis Consultation
The controversy surrounding the extent of Métis harvesting rights in Alberta has been pushed to the spotlight as the next phase of R. v. Jones, Bates, and Hirsekorn (Jones) gets set to begin in mid-September 2009. The case involves three Métis harvesters who were charged with hunting without a licence. While not expected to conclude until early 2010, the case is an important one to watch because it raises the constitutional issue of who is considered Métis in Alberta and where Métis can hunt. The Jones case also highlights that while there is a growing recognition of Métis rights under section 35 of the Constitution Act, there remains a lack of understanding of exactly how to identify a Métis rights-bearing community. That deficiency makes it difficult for governments and project proponents to ensure proper consultation.
Who Are The Métis?
The Métis are one of the three distinct Aboriginal peoples of Canada recognized under section 35 of the Constitution Act (Act). Historically, the Métis were born from the marriage of Cree, Ojibwa and Salteaux women, and European fur traders. Over time, the Métis developed their own unique language, culture and political traditions. In 2002, the Métis National Council (MNC) 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 and not by individual Métis communities.
For purposes of section 35 of the Act, the Supreme Court of Canada stated in its decision in R. v. Powley, 2003 SCC 43 (Powley) that the term "Métis" does not encompass all individuals with mixed Indian and European heritage: rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears.
In Powley the court emphasized the importance of having more standardized Métis membership requirements so that legitimate rights-holders can be identified. Otherwise, courts faced with Métis claims would have to ascertain Métis identity on a case-by-case basis. Many of the provincial Métis governing institutions have since established (or are in the process of developing) registry systems with Métis membership requirements consistent with the MNC definition of Métis.
An important distinction between the Métis and First Nations is that the Métis are not organized as bands under the Indian Act nor have they been granted legal self-governance structures. As a result, Métis often govern themselves via non-profit corporate structures. Despite this difference, these governing institutions are similar in purpose and centralized democratic structure to other governments, and are generally recognized as appropriate consultation partners by the Crown. The Métis self-govern via provincial bodies such as the Métis Nation of Alberta (MNA) which is divided into six regional associations or "Regions." These associations, in turn, are divided into multiple community-level "Locals," each of which is composed of nine or more members. Other Métis provincial bodies also possess this governance structure. Métis governing institutions from Ontario westward come together to form the MNC, which represents Métis nationally and internationally.
Identifying A Métis Rights-Bearing Community
The impetus towards enforcement of Métis rights began with the decision in Powley, in which the Supreme Court of Canada confirmed that Métis hunting rights are affirmed and protected under section 35 of the Act. Since Aboriginal rights are communal, to be entitled to constitutionally protected Métis rights, an individual must establish that he belongs to a rights-bearing Métis community entitled to exercise the traditional site-specific practice claimed. The practice in question must have been exercised prior to effective European control and must be continued today.
In considering the existence of Métis rights, the Court will consider whether the claimant(s) belong(s) to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific Aboriginal right. In Powley, a Métis community was 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. A claimant's membership in the relevant contemporary Métis community must be verified by considering three factors as indicia of Métis identity: self-identification, ancestral connection and community acceptance.
The Manitoba Provincial Court decision in R. v. Goodon, 2008 MBPC 59 (Goodon), provides guidance on how a court may apply Powley to identify a Métis rights-bearing community. (For a detailed discussion of the Goodon case, see the Osler Update of January 14, 2009.) In Goodon, the court characterized the site-specific right being asserted by Mr. Goodon as the right to hunt for food in the environs of the Turtle Mountains in southwestern Manitoba. On the evidence before it, the court found that the Turtle Mountains and surrounding area comprise a distinct geographic area that had been used by the Métis of southern Manitoba for certain traditional practices, including hunting, well before effective European control. The court observed that while the Métis community changed and individual members had spread out since the time of European control, the Métis community in Manitoba remains well-organized and vibrant. The court concluded that there remains a contemporary, regional community in southwest Manitoba that continues many of the traditional practices and custom practised by its ancestors. As Mr. Goodon could establish that this modern-day Métis community continued to practice hunting in the area of Turtle Mountains, and that he was an accepted member of this community, the court held that he was entitled to exercise his community's aboriginal right to hunt for food in the area.
Best Practices For Métis Consultation By Proponents
When the Crown is considering projects that may negatively impact on an asserted or proven Aboriginal or treaty right, the duty arises to consult and, depending on the degree of impact, accommodate those Aboriginal interests. The duty to ensure that adequate consultation has taken place ultimately rests with the Crown; but, in many cases, the project proponent must also engage in the consultation process.
The breadth of the Métis community that must be consulted depends on the nature of the proposed project and the reach of its potential adverse effects. The collective nature of Métis rights signals that consultation of nearby individuals or isolated groups without objectively verifiable Métis membership is insufficient. When the potential impact of a project is geographically constrained, it may be acceptable to consult elected representatives in nearby Locals. However, since individual Locals may be part of a larger, regionally widespread Métis rights-bearing community, there are circumstances that would suggest that it is the regional rights-bearing community that should be consulted.
Both the MNC and many provincial governments recommend approaching the affected Region's elected representatives for consultation. In Alberta, the MNA is in the process of creating regional consultation protocols and even an industrial relations unit at the provincial level because, with very large-scale projects, it may become necessary for proponents to consult with the Métis Nation at the provincial or even federal level. The Government of Alberta has yet to develop consultation guidelines specific to the Métis. In the interim, although the Government of Alberta's First Nations Consultation Policy on Land Management and Resource Development is specific to First Nations, the Government of Alberta recommends that proponents engage with Métis communities using the principles outlined in the policy and a "good-neighbour" approach.
Engaging affected Métis communities in a meaningful consultation process early in the project, considering traditional land use in project design and working in good faith with Métis people to minimize adverse effects is the best way for project proponents to ensure successful and timely regulatory approval for natural resource development projects. As the proper process for consulting with the Métis continues to develop and evolve, guidance can be gleaned from a variety of Métis Nation guidelines, protocols and provincial policies, including those of the province of Alberta. Although specific details may vary depending on particular Métis groups or jurisdictions, resource developers are well-advised to take a broad, inclusive approach towards consultation. Recommended best practices include:
- Notification - Providing notice to Métis communities living in and using the affected area early in project planning can help to avoid regulatory delays.
- Information exchange – Proponents should ensure that the relevant Métis communities are fully informed about the proposed development. This is also an opportunity to obtain information from the Métis about land and resource use of Métis communities in the project area (i.e., through research reports and land use maps) and gain a better understanding of any concerns. Some funding for participation may be considered.
- Consideration of Concerns – The information collected from the consultation process should be used to avoid or minimize any adverse impacts from the project on asserted Métis rights. Accommodation of potential infringements are tailored to each project and can include re-routing of roads, bridges and dams, socio-economic benefits and harvesting compensation. Reporting back to the Métis communities on how their concerns were considered and how provided information was utilized in the decision-making process will improve relationships and help meet regulatory requirements.
Shawn Denstedt is a partner in the firm's Calgary office. Jessica Ng is an associate in the firm's Calgary office. Dana Jevremovic is a summer student in the firm's Calgary office.
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