Métis treaties, agreements focus of five-year study

University of Alberta professor Catherine Bell does not believe that the Daniels case – which is now on the Supreme Court of Canada’s schedule – will have an impact on the province’s Métis settlements.

“There’s going to be obligations even if, for some reason, the federal government had to pass a legislation, there would be an obligation to find a way to keep (the Métis settlements) alive, like passing parallel legislation. I really don’t see any worries there,” said Bell, who is a member of a multi-province team of academics and legal consultants, who will spend the next five years studying Métis treaties with the Crown, including contemporary treaties and agreements.

Leave was granted Nov. 20 for the Supreme Court to hear an appeal of the Daniels case. A trial court declared Métis and non-status Indians as “Indians” under Section 91(24) of the Constitution and as such coming under federal jurisdiction.

In 1990 the Federation of Métis Settlements and the province of Alberta signed the Alberta-Métis Settlements Accord.

That accord is further supported, says Bell, by the Supreme Court’s Tsilhqot’in ruling in June. She admits it is “odd” to be considering a case that deals with First Nations but the implications of the ruling are far reaching.

“Tsilhqot’in said that when we’re talking about provincial legislative actions … the question isn’t whether which government should be passing that law and entering into relationship, but the Section 35 test, to what extent has a government action affected an Aboriginal right,” said Bell. “So (Tsilhqot’in) takes the focus off the debate of which government (and puts the focus on) what is the impact and have you met your Constitutional obligation.”

As part of the Métis treaty study, Bell will also examine whether federal government involvement is necessary.

“So if I’m trying to argue the Métis settlement is a treaty-like promise, is it relevant that there is a negotiation between the province and Métis, and the feds aren’t involved?” said Bell.

Treaty-like promise was raised through the Supreme Court’s Manitoba Métis Federation case and “suggests that there is a duty on the Crown to diligently fulfill the purpose of its promise,” said Bell.

The aspect of Daniels that could impact the Métis settlements is the definition of who is a Métis, she adds. That definition is among the points the Supreme Court is being asked to clarify. As it stands now, the Powley definition of Métis sets criteria, which includes identification of the historic Métis community as well as identification with a contemporary Métis community.

“The settlements … are historically a mixed population of Métis and non-status people so a very strict application of Powley to them without taking into consideration the evolution of those communities and the fact that the core of those communities are Métis and some of the lands were areas Métis lived but not all of them, if one applies a very strict application, that could cause some issues for who is and is not Métis for the purposes of jurisdiction,” said Bell.

While the study of Métis treaties and agreements coincides with the Supreme Court’s decision to hear an appeal on the Daniels case that is not the driving force for the country-wide project.

“We also want to examine how the Métis would participate in ongoing claims in terms of treaty model and allow Métis to be able to rely on mechanisms like the comprehensive claims process to resolve their disputes or to be included in the specific claims process for already existing treaties,” said University of Ottawa professor Larry Chartrand, who is heading the project.

Chartrand says the study may also serve to set up mechanisms for the Métis and various levels of government to move forward on outstanding issues.

“The treaty approach may actually be the resolution to the issue (rather) than litigation,” he said. “A lot of the claims that Métis bring forth wind up in the courts.”

Joining Bell from the U of A’s faculty of law is assistant professor D’Arcy Vermette. Rounding out the group are academics from the universities of Manitoba and Saskatchewan as well as prominent Métis lawyers and consultants.