Métis Nation-Saskatchewan files statement of claim over provincial duty to consult

The Métis Nation-Saskatchewan is taking the provincial government to court over its duty to consult policy, which it calls unconstitutional.

The specific policy raised in the filing, made at the Court of Queen's Bench in Regina, is the 2010 First Nation Métis Consultation Policy Framework.

The Métis Nation-Saskatchewan (MN-S), represented by Thomas Isaac of Cassles, Brock & Blackwell, is asking the court to rule the 2010 policy invalid and declare the province's alleged reliance on the policy to avoid its duty to consult dishonourable.

"The government of Saskatchewan is not adhering to Canadian law when it either carries out consultation or refuses to carry out consultation regarding asserted Métis interests throughout Saskatchewan," Isaac said.

In an emailed statement, the government said it had received the statement of claim and was reviewing the document to decide how to respond.

The statement of claim lays out four points where the MN-S felt the 2010 policy was inconsistent with Canada's constitutional protections of Indigenous rights.

First, the statement says the 2010 policy states the province does not accept assertions by Métis of Aboriginal title regarding land or resources, and as a result, decisions that could adversely affect Métis land claims are not subject to consultation.

Second, the statement says the disposition of minerals under The Crown Minerals Act is not subject to consultation.

Third, the statement says the impact of commercial uses on traditional Métis practices, like trapping and fishing, are not subject to consultation.

Finally, the statement says when consulting, the province recognizes presidents of the Métis Locals (local representatives) as the proper consultation representative, and will only consult with provincial Métis bodies — like MN-S — if leadership had previously delegated it to do so.

The claims have not been proven in court.

Isaac said the move is the first step in a long journey for the MN-S in ensuring Métis people's rights, enshrined in Section 35 of the Constitution, are respected.

He said it's time for Saskatchewan to catch up with other provinces in Canada in terms of consultation.

Isaac said the province created its own playbook on consultation, and while policies elsewhere in Canada may not be perfect, in his opinion they're better than Saskatchewan's.

"I am not aware of any other province that sticks its head in the sand on its constitutional obligations like Saskatchewan," he said.

"There is a difference around the order of magnitude of the lack of acknowledgement by Saskatchewan of its constitutional obligations, that quite frankly, you don't see anywhere else in the country."

Claim lays out challenges

The MN-S claim spelled out a number of challenges presented by the 2010 policy.

Among the issues, the statement said, is the province's refusal to provide consultation notices to the MN-S president or other delegated employees within the nation's executive, which the statement says leads to the notices going unanswered.

"[Notices] are received by Locals that are operated on a volunteer basis and which are not equipped or operated to provide timely, meaningful responses and otherwise advocate for Métis rights," the statement said.

Sending statements to Métis Locals, rather than the executive, undermines Métis self-determination and self-government as per the MN-S constitution, the document claims, noting the action imposes an "alternative framework" on the organization

"Any written notices with respect to Crown consultations should be sent to potentially impacted MN–S Local Council(s) and Regions and copied to the MN–S," the MN-S said of its asks in an email to CBC after this article first published.

Government reliance on the policy perpetuates the long history of marginalization of Métis people in Saskatchewan, the statement said, including the marginalization of Métis rights, culture, traditional activities and use of Métis lands.

Recent 'engagement' on issue

The statement says in or about the fall of 2019 and into early 2020, the province considered issuing a number of exploration permits on lands that fall within traditional Métis territory — which the document says triggered the Crown's consultation obligations.

The MN-S says in the claim it was only made aware of two of the permits and was not notified or engaged in consultation about other exploration permits that were considered.

The claim argues the province's consultation on this matter exemplified its failures and ongoing refusal to consider Métis concerns, including title.

The statement says the province's actions also exemplified ongoing failures and continued refusal to provide MN-S with notice regarding undisclosed permits, resulting in a loss of opportunity for Métis to consider or communicate impacts of the exploration program.

"The province's dishonourable conduct regarding both the disclosed permits and the undisclosed permits, and consultation more broadly, reflects the obstacles that the 2010 policy creates for advancing Métis concerns and promoting meaningful consultation," the statement says.

Declaration of validity among relief sought

The MN-S claim says the organization wants the court to make a number of declarations.

Among the relief sought is a declaration by the courts that would declare the 2010 First Nation Métis Consultation Policy Framework is invalid and breaches the honour of the Crown.

The claim asks the court to declare the province's duty to consult with Métis over claims to land and resources.

The MN-S asked the court to declare the organization's executive as the representative of Métis people in Saskatchewan in consultations, or, at minimum, provide notices of consultation to the executive.

The MN-S also asked the province to identify and disclose all matters over the last decade where the province should have consulted with Métis people, but didn't because of the 2010 policy.

"We're only aware of what we're aware of, and it's quite clear to us that we believe there are many other instances that the government simply did not do what it's constitutionally required to do," Isaac said.

A MN-S press release from last week included comment from President Glen McCallum on the matter, who said the province's actions have perpetuated the marginalization of Métis people in the province and called for things to change.

"We call on the province to reject the 2010 policy, and to treat Métis with the respect and dignity they deserve as Canadians and as a rights-holding people," McCallum said.

Read the MN-S Statement of Claim here: