N.W.T. land claim agreement stayed after failing Powley test

Monday, November 6th, 2017 5:10pm

By Shari Narine
Windspeaker Contributor


A decision by the federal court could force the government of Canada into its first land claim negotiations with Métis people.

On Oct. 19, federal court Justice Madam Justice Anne L. Mactavish ruled in Enge v. Canada that Indian and Northern Affairs Canada erred by not adequately consulting and accommodating the North Slave Métis Alliance regarding a land claim settlement that had the potential to infringe on their Section 35 harvesting rights.

Canada and the government of the Northwest Territories had consulted with the Northwest Territories Métis Nation for an agreement-in-principle for land primarily to the south and east of Great Slave Lake. The intent of the land and resource agreement would see Section 35 harvesting rights extinguished for Métis whose ancestors lived in the South Slave region in exchange for a codified set of rights in an area agreed upon by all parties. 

At issue, said Bill Enge, president of the North Slave Métis Alliance, is the definition of Métis used in the negotiations and who sat at the negotiation tables to represent Métis.

“Never in the history of Canada has the government of Canada ever negotiated a land claim with a Métis people on a Métis qua (as) Métis basis…. The Crown has always viewed Métis having Aboriginal rights and titles through their Indian ancestry and land claims have always been based on derivative Aboriginal rights, derivative of your Indian ancestry,” said Enge.

For the purpose of the agreement, Métis was defined as an “Aboriginal person of Cree, Slavey or Chipewyan (collectively, the ‘Dene’) ancestry who resided in, used or occupied the Agreement Area before December 1921 or a descendant of such people.”

But that definition does not take into account the Powley test established by the Supreme Court of Canada in 2003, which identifies Métis as a “distinctive people.” The North Slave Métis Alliance asserts that the membership of the Northwest Territories Métis Nation consists of those with Aboriginal ancestry, not the rights-bearing Powley community. It is the Powley community the North Slave Métis Alliance represents.

The federal court decided that the Northwest Territories Métis Nation had no greater right to represent the area’s Métis than did the North Slave Métis Alliance and ordered Canada to consult with and accommodate the Alliance. The conclusion of the final agreement for the land claim settlement was stayed until meaningful consultation occurred.

Enge said that prior to the federal court’s decision, the North Slave Métis Alliance had offered Canada two ways to approach the agreement, which would accommodate Alliance members. First, that the Alliance members be able to choose whether to have their Section 35 rights extinguished outside the agreement area, or second, that the Alliance came to the negotiation table as a full partner alongside the federal government, the N.W.T. government and the Northwest Territories Métis Nation.

The federal government had denied both options. Enge says both options will remain on the table.

But, in the spirit of reconciliation, Enge says only one decision on the part of the Crown is acceptable.

“I’d like the federal government to respect the North Slave Métis people’s Aboriginal rights as Métis, and I would like them to provide the North Slave Métis people with a land claim in respect of those Section 35 Aboriginal rights.

A land claim is the highest form of reconciliation the Crown can provide to an Aboriginal people in Canada,” he said.

The federal government, the N.W.T. government, and Northwest Territories Métis Nation have until Nov. 20 to appeal the federal court’s decision.