In 2004, the Supreme Court of Canada released its decision in the Haida Nation v. British Columbia case. This case was about whether or not the government (the “Crown”) was required to consult with Aboriginal communities before making decisions that could negatively impact the Aboriginal rights of those communities. The Haida Nation was successful in proving that the British Columbia government had a responsibility to consult with them before making decisions about lands and natural resource development.
The court said that this responsibility of the government, also known as the Crown’s “duty to consult” was rooted in a basic principle of the “Honour of the Crown” which goes back to the establishment of British sovereignty in this country. The Haida Nation v. British Columbia decision defined consultation as a process of reconciliation where the Crown’s sovereignty must take into consideration and address the claims, rights and interests of the Aboriginal communities who were here before. This case set the standards for when the Crown has a “duty to consult” and how consultation should occur.
Since 2004, there have been other Supreme Court cases that have expanded on the Haida decision and have both widened and narrowed the scope of the Crown’s duty to consult. Canada and the provinces have responded to the Supreme Court’s direction by developing consultation policies and guidelines that explain how and when they will consult with Aboriginal communities. In Alberta, up until recently, the provincial consultation policy applied only to First Nations; Metis communities, including the Settlements, were not consulted except in special circumstances.
During the negotiation of the Alberta/Metis Settlements Long Term Arrangements Agreement (LTA), the Metis Settlements successfully lobbied for a Metis Settlements consultation policy. Schedule “I” of the LTA commits Alberta and the Metis Settlements to the following:
- Complete the conduct and assessment of historical presence and activity research (community history and traditional land use study
- Enter into good faith discussions regarding the development of a Government of Alberta Metis Settlements Consultation Policy
- Once a Consultation Policy is developed and approved, the Minister of Indigenous Relations will provide consultation capacity funding to each Settlement
- Provide a maximum of $9.7 million over the term of the LTA (2013 – 2023) for consultation initiatives
The parties agreed that the agreements and arrangements made under Schedule “I” will survive the expiry or early termination of the LTA. This means that after 2023, the Government of Alberta will continue to consult with Metis Settlements. It also means the province will continue to provide consultation capacity to individual Settlements once the $9.7 million of LTA funds runs out.