CONSULTING THE MÉ­TIS IS A CONSTI­TU­TIO­NAL DUTY

La Liberté - - MMF-PROMOVOIR NOS DROITSF -

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.

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