Righting historical wrongs

Jason Madden always uses the same analogy to describe the epic Métis fight for full recognition as Indigenous Peoples with self-determination rights.

“We’d knock on the federal government’s door. The lights would turn off. You’d hear rustling. People would be hiding under desks.”

He says it was a systematic refusal to acknowledge Métis existence, let alone the string of broken promises stretching back to Louis Riel and the Manitoba Act of 1870.

But the Red River Métis Self-Government Recognition and Implementation Treaty signing on Nov. 30 has finally broken the “glass ceiling,” says Madden, a partner at Aird & Berlis LLP.

“Now you finally have the Métis taking their rightful place as one of the distinct Indigenous Peoples recognized in our Constitution.”

It also clears the way for other agreements now being negotiated.

“Coming to a theatre near you: more Métis treaties,” he says.

The co-developed agreement between the Manitoba Métis Federation and Canada is the first modern treaty of its kind south of 60. It builds on a previous 2021 agreement and affirms the federation as the government of the Red River Métis with law-making powers over about 44,000 citizens, including elections.

The treaty does not outline specifics for land, harvesting, or other rights to be negotiated later. It also requires implementation legislation that may not be passed before the next federal election.

Still, Manitoba Métis Federation President David Chartrand has declared it a major step toward righting historical wrongs.

“Together, we are showing that Canada is a place where we can face challenges, come to terms with mistakes of the past, and move forward in a positive way, forging a new history for future generations.”

Madden traces his Métis roots to northwestern Ontario, where his ancestors signed a “half-breed adhesion” in 1875 to Treaty No. 3.

“These promises go to the heart of Canada’s constitutional morality as a country. This is what we’re built upon,” he says.

“You can’t get to reconciliation without the truth. This is our story, warts and all.”

The Manitoba Act created Manitoba as Canada’s fifth province. It was negotiated after an uprising among the Red River Métis as the country’s first government moved to open the western territories to waves of settlement and bring them within its borders.

“In the face of armed resistance, Canada had little choice but to adopt a diplomatic approach,” said the 2013 Supreme Court of Canada judgment in Manitoba Métis Federation Inc. v. Canada.

“The Red River settlers agreed to become part of Canada, and Canada agreed to grant 1.4 million acres of land to the Métis children … and to recognize existing landholdings.”

However, insufficient land allotments were often far from traditional Métis communities. There were repeated delays and eligibility snags as speculators moved in, settlers arrived, and Métis holdings diminished.

The scrip system issued coupons to be redeemed for land but left impoverished Métis families vulnerable to speculators who offered far less than their worth.

Riel was hanged for high treason in 1885 after leading the North-West Resistance against settler encroachment. In the decades that followed, generations of Métis became known as “Road Allowance” families, living in destitution on the fringes of Crown land across the Prairies. They often had no access to health services or public education as white governments restricted hunting.

Métis leaders established self-government systems, but efforts to negotiate nation-to-nation with federal governments were flatly ignored during what Madden calls the era of “absolute denial.”

In 1982, Section 35 of the Constitution Act included the Métis as Aboriginal Peoples while affirming “existing aboriginal and treaty rights.” But even that landmark triumph did not open doors to negotiations as provincial and federal leaders ducked responsibility, Madden says.

Getting to the treaty signing on Nov. 30 required what he calls the trifecta of Métis top court victories—he appeared in all three, beginning with R. v. Powley in 2003.

Powley was “the starting gun” because the high court set out that Métis communities have distinct cultures and, crucially, that by including the Métis in Section 35, Canada granted them protected rights.

Manitoba Métis Federation Inc. v. Canada in 2013 found that the Métis have outstanding claims stemming from less than diligent Crown efforts to deliver the 1.4 million acres of land promised in 1870.

In Daniels v. Canada, the SCC unanimously ruled in 2016 that the Métis are “Indians” under Section 91(24) of the Constitution Act and are, therefore, under federal government jurisdiction.

“We really had to take Powley and then litigate — sometimes it felt like acre by acre — across the Prairies,” says Madden.

In the meantime, Prime Minister Justin Trudeau’s election in 2015 brought a fresh focus on Indigenous reconciliation that finally kick-started negotiations.

Métis government recognition and self-government agreements signed in 2019 with the Métis Nation—Saskatchewan, Métis Nation of Alberta, and Métis Nation of Ontario were updated last year, laying the groundwork for future treaties.

Jean Teillet, emeritus counsel with Pape Salter Teillet LLP, was lead counsel in Powley. Since the early 1990s, her work as a negotiation advisor included the Sto:lo Xwexwilmexw treaty process in B.C. and the Tlicho Land Claims and Self-Government Agreement talks.

She is also Riel's great-grandniece and the author of The North-West is Our Mother: The Story of Louis Riel’s People, the Métis Nation.

“It’s particularly significant for Manitoba because Louis Riel negotiated what the Métis have always called our treaty back in 1870,” she says of the recent treaty signing.  

“They’ve been at this for 154 years, trying to secure a land base and their own collective preservation. It’s been a long, long battle. Now, I want the land.”

With a federal election looming, it’s a “mug’s game” to guess when implementation legislation could be passed, Teillet says, noting land allotments will also depend on provincial cooperation.

Manitoba Premier Wab Kinew attended the treaty signing last month and led the push to have Riel formally recognized as the province’s first premier.

Last July, he also signed a memorandum of understanding for the proposed transfer of about 100 acres of land at the former Ste. Madeleine community back to the Red River Métis. He noted that the homes of about 250 Métis people were “burned by Canada to create community pastures” at the site in 1939.

While political uncertainty could slow federal momentum, “the foundation is there,” Madden says.

“Ottawa should get out of the way of Indigenous governments from being able to help their own people and participate in the economy. Treaties are the way you achieve that.”