CONSULTING THE MÉTIS IS A CONSTITUTIONAL DUTY
In 2004 and 2005, the Supreme Court of Canada reaffirmed the Crown’s obligation to consult with and find satisfactory solutions for the Métis Nation prior to any decision that might affect the Métis people or their Aboriginal rights. This duty has, in the past, all too o en been forgo en.
The duty to consult the Métis, as well as other aboriginal peoples, arises from the honour of the Crown and Section 35 of Canada’s 1982 Constitution Act. This duty applies to any and all decisions of provincial and federal governments that could potentially affect the Métis Nation and its rightsholders.
MMF Engagement and Consultation Coordinator, Jasmine Langhan, explains: “The Supreme Court of Canada, in its 2004 decisions on the Taku River First Nation and the Haida Nation and its 2005 decision on the Mikisew Cree, determined that the Crown had an obligation to consult Aboriginal peoples before making any decision that could affect them or their rights, potential and established, in any way. And, if appropriate, to identify solutions to accommodate them. Section 35 of the Constitution Act of 1982 states that there are three Aboriginal peoples of Canada, namely First Nations, Métis, and Inuit. Consequently, the Crown has a constitutional duty to consult all three groups.”
In the years following these decisions, however, the Crown has at times circumvented its responsibilities by consulting only a few individual citizens of the Métis Community who declared,
on a purely personal basis, that they perceived no potential impacts from a certain project. For that reason, in 2007, the MMF voted unanimously to pass Resolution No. 8, which sets out a framework for how the MMF will conduct consultations involving the Crown on behalf of the Manitoba Métis Community, with the MMF Home Office given the right and responsibility to lead this process.
“While it’s up to the Crown to advise us of its plans before they’re implemented, it’s then up to us to hold the requisite community consultations with our Community so as to be able to adequately and fully assess the potential impact of a Crown project,” says Langhan. “We then express our concerns to the Crown, which must work with us to identify mitigation and accommodation measures that meet our needs, including changes to project scope or timeline, access accommodation, or economic opportunities, to name a few solutions. The MMF does not oppose economic development, assuming it is not at the expense of our Community”
For consultations involving major energy or infrastructure projects, MMF Director of Energy and Infrastructure Marci Riel takes the next step by facilitating the relationship between the MMF and project leaders to ensure that they “take the Métis people fully into account during the project construction. We conduct studies and implement protection plans against potential impacts on the environment, for example.” These economic development discussions are led by MMF President David Chartrand and Minister Jack Park.
There is concern that the Crown at times
fails to adequately consult the Métis with the same level of consultation offered to First Nations. This has been particularly true of recent projects led by the Province of Manitoba. “We have to work at increasing awareness,” she said, “because many don’t consider the Métis as an Aboriginal group or don’t understand our systems.”
There are times when the MMF is notified so late in a process that full, proper and meaningful consultation is near impossible. “During recent fishing closures, for example, we were given less than 24 hours’ notice. That is unfair to our citizens whose livelihood relies on fishing in those areas, who then have to travel further, and incur additional costs.” This issue is ongoing, as the MMF requests the Province “advise us in advance of any upcoming closures every year.”
Vice President Denise Thomas, MMF’s Minister responsible for Duty to Consult, repeats the importance of this duty of the Crown. “Full, adequate, and meaningful consultation with Manitoba’s Métis Community is imperative to ensure that our rights remain protected and that any negative impact on our Community is minimized, mitigated, and followed up with a sincere desire for accommodation. The Métis Nation is very pleased that the Crown’s duty to consult is in effect. It will help move the reconciliation process forward.”
Jasmine Langhan’s office is currently processing near 200 consultation files, most of which have several potential impacts requiring study and further engagement and consultation.