MNA appeal could be test case for duty to negotiate

The Métis Nation of Alberta (MNA) has appealed a recent court ruling that says the Jason Kenney UCP government did nothing wrong when it decided to cut off negotiations with the MNA on the development of a Métis consultation policy.

“There hasn’t been a case from the Supreme Court of Canada dealing with the duty to negotiate. That is why the MNA pursued this case, because it’s on the duty to negotiate and that is a really important duty that we need some clarity on,” said Jason Madden, legal counsel for MNA.

In January, Court of Queen’s Bench Alberta Justice Bernette Ho ruled in favour of Alberta after it ceased negotiating with MNA on the policy. The ruling stated the government’s explanation to the MNA about why it stopped could have been “more fulsome, (but) perfection is not the standard.”

That ruling is the “real error of law,” said Madden. Whether the decision made by the minister of Indigenous Relations was reasonable “was not the test. What the test is, when the minister made the decision, was he correct in determining that the honour of the Crown and the honour to negotiate were not triggered.”

The eight-page Notice to Appeal filed by the MNA on Feb. 1, states in part, that the judge “erred in law by failing to determine whether, when making the decision (to stop negotiations), the minister correctly considered, set out, applied the nature, scope and content of the Crown’s duty to negotiation in the situation before him, including the specific Crown obligations owing to the MNA that arose from said duty.”

In other words, said Madden, if the minister is “denying the legal requirement, which is that the honour of the Crown and the duty to negotiate was required, how can (he) get the right answer? … How can the subsequent actions be reasonable if the decision-maker denied the legal duty?”

Further to that, said Madden, the UCP government made its decision to terminate negotiations on a Métis consultation policy and provided no reasons even though the MNA spent five years working on it with three different governments – Conservatives, NDP and UCP.

“We’re not saying (the minister) had to put a Métis consultation policy in place, but in order to terminate negotiations, at the very least, what the honour of the Crown required is tell the MNA what the problem was. In the letter he sent, all he said was, ‘I’m not proceeding,’” said Madden.

Internal government documents, such as memos and letters, set out a number of reasons why the UCP ended negotiations. However, the MNA had to sue to get access to those documents after the government pulled the plug on negotiations.

One of the reasons noted by the government was the MNA’s inability to present itself as the definitive voice of off-settlement Métis. Within the MNA organization itself, representation issues and opposition were voiced by locals and regions. In addition to that a number of Métis communities had broken from the MNA and were representing themselves.

Madden doesn’t deny the issue of representation existed nor does he say the MNA was unaware of it. However, he holds that the MNA did not know that this was one of the points the minister was considering when he made his decision to not move forward with negotiations.

“Alberta could have said ‘This is about representation. You don’t have your house in order on these issues. That is the reason that we’re ending these negotiations.’ I don’t think six words, ‘We’re not proceeding at this time,’ is sufficient after five years of negotiations,” he said.

Had the MNA known this was a sticking point, he adds, work could have been done to align the locals and the regions.

Madden notes that the documents the MNA had to sue for and didn’t have access to during negotiations were cited by Justice Ho and figured into her decision-making process.

He points out that in the 2016 Daniels decision, the Supreme Court of Canada talks about the duty to negotiate. While the SCC lists Haida Nation v. British Columbia (Minister of Forests), Tsilhqot’in Nation v. British Columbia, and Powley as “recogniz(ing) a context-specific duty to negotiate when Aboriginal rights are engaged,” the decision does not outline what that duty to negotiate must entail.  

“We think (the MNA ruling) is an important test case on that principle,” said Madden.

“We will acknowledge that governments have the ability to change their mind. They have the ability to terminate negotiations. But we think when the honour of the Crown and the duty to negotiate are engaged, at the very least, the government has to tell the Indigenous group why,” he said.

“If the honour of the Crown in 2022 means that governments don’t even have to explain the rationale for their decisions to the Indigenous partners they are negotiating with, how is this attitude any different than what we’ve seen in the last 150 years, an attitude that has led this nation to the urgent need for reconciliation?” said MNA President Audrey Poitras in a statement.

Madden hopes the appeal will be heard sometime this fall.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.