Métis Nation of Alberta and Wood Buffalo Métis Locals Launch Collaborative Work to Press Canada to Deal with the Failings of Métis Scrip System

Métis Nation of Alberta/Wood Buffalo Métis Locals
Advancing a Métis Claim Related to Scrip in Northeastern Alberta Project

Backgrounder and Frequently Asked Questions
What is the Project?
The Métis Nation of Alberta (“MNA”) and Métis Local #63 Fort McKay, Métis Local
#125 Fort Chipewyan, Métis Local #193 Conklin, and, Métis Local #1935 Fort
McMurray (collectively known as the “Wood Buffalo Métis”) have agreed to work
together to conduct research and legal analysis on the failings of the federal government’s
Métis scrip system in northeastern Alberta (the “Project”).
The ultimate goal of this Project is to secure a formal negotiation process with the federal
government (“Canada”) to address the sorry legacy of Métis scrip in northeastern
Alberta. In preparation for negotiations with Canada or the potential filing of a formal
claim against Canada (if a negotiation process cannot be secured), the Project will
document the development, implementation and impact of the Métis scrip system in
northeastern Alberta.
The MNA and the Wood Buffalo Métis have agreed to work with various researchers and
have retained Métis lawyer Jason Madden of the law firm Pape Salter Teillet LLP to
assist with the Project. Mr. Madden has been legal counsel in much of the litigation on
Métis rights from Ontario westward over the last decade.


What is Métis Scrip and the Outstanding Métis Claims against Canada?
When the British Crown transferred Rupert’s Land and the Northwest Territories (which
included present day Alberta) to Canada in 1870, a condition was added to that transfer
and a promise was made to the Indigenous peoples—First Nations and the Metis—living
in these territories:
…that, upon transference of the territories in question to the Canadian
Government, the claims of the Indian tribes to compensation for lands required
for purposes of settlement will be considered and settled in conformity with the
equitable principles which have uniformly governed the British Crown in its
dealings with aborigines.1
1 Rupert’s Land and North-Western Territory Order (June 23, 1870) (U.K.), Schedule A,
reprinted in R.S.C. 1985, App. II, No. 9 at 8. (the “1870 Order”)
2
This promise made to all Indigenous peoples in these territories is in the 1870 Order,
which is a part of Canada’s Constitution. In fulfillment of this promise, government
policy regarding First Nations was to enter into treaties with bands, whereby they agreed
to settlement of their territories in exchange for reservations of land and other promises.2
Conversely, Métis were offered compensation as individuals—in the form of scrip (i.e., a
coupon that could be redeemed land or money)—for the purported “extinguishment” of
their “Indian title.” The legislative means to implement the constitutional promise made
to the Métis was set out in the Dominion Lands Act, 1879, which reads,
To satisfy any claims existing in connection with the extinguishment of the Indian
title, preferred by half-breeds resident in the North-West Territories outside of the
limits of Manitoba, on the fifteenth day of July, one thousand eight hundred and
seventy, by granting land to such persons, to such extent and on such terms and
conditions as may be deemed expedient.3
It was only following the 1885 Métis resistance—led by Louis Riel and Gabriel
Dumont—that Canada even began to issue Métis scrip under the Dominion Lands Act.
Notably, Métis in the north could not even locate their land scrip in a place that was near
to where they lived. In addition, as recently recognized by Canada’s Ministerial Special
Representative on Métis Section 35 Rights (“MSR”),
[the scrip system] was complex and replete with fraud, abuses, and delays. In
short, the scrip policy was largely unsuccessful in bringing economic and social
benefits to Métis. The [Supreme Court of Canada has] referred to the history of
scrip speculation and devaluation as “a sorry chapter in our nation’s history.”4
Notably, in 1899, the Dominion Lands Act, and, section 90(f) dealing with Métis scrip,
was amended. In introducing these amendments, Prime Minister Laurier and the Minister
of the Interior, acknowledged the underlying purpose of Métis scrip,
We determined at the outset, when we acquired the territory of the Hudson Bay
Company, that we would treat the half-breeds as we would the Indians—that is, as
first occupants of the soil. It has been the policy of the British Government from
time immemorial not to take a possession of any lands without having in some
was settled with the first occupants and giving the compensation.
…the Government of the Dominion, in taking possession of the territory, was
bound to recognize [the Métis] petition and extinguish title…
2 Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, at para. 3.
3 Dominion Lands Act, 1879, 42 Vict. Chap 31, s. 125 (e).
4 MSR Report at p. 9. A copy of this report is available online at: http://www.aadncaandc.
gc.ca/eng/1467641790303/1467641835266
3
In the Treaty 8 area specifically, which includes the Wood Buffalo region, this policy was
implemented by a scrip commission that travelled with the treaty commission. An 1899
Order-in-Council established this Métis scrip commission based on the following,
After careful consideration the Minister has come to the conclusion that this claim
of the Half-Breeds is well-founded and should be admitted. As already set forth
he is of the opinion that Indian and Half-Breed rights are co-existent and should
be properly extinguished concurrently. When half-breed rights are not so
extinguished, they must, he considered, be held to exist after the extinguishment
of Indian title and up to such time as action is taken for their extinguishment.5
The manner in which Métis scrip was implemented, however, leaves significant doubt as
to whether the Métis in the Treaty 8 territory generally, and north-eastern Alberta
specifically, ever received an ‘equitable settlement’ of their claims. Notably, in relation
to Métis scrip, the 1936 Ewing Commission wrote,
The precautions of Parliament were easily circumvented and the scrip passed
readily and cheaply into the hands of speculators. The resultant advantages to the
half-breed were negligible.6
Through Canada’s scrip system, the Métis lost almost all of their traditional land base and
were pushed to society’s margins—becoming known as the ‘road allowance people’ in
the prairies. Notably, the Royal Commission of Aboriginal Peoples wrote the following
about the situation the Métis in Alberta faced,
In the early twentieth century, the circumstances of the Alberta Métis were
“especially grim in the central and north-central regions. … Game was scarce,
prohibitively expensive fishing licenses were required, and white settlement was
spreading remorselessly. The majority of the Métis were reduced to squatting on
the fringes of Indian reserves and white settlements and on road allowances”. The
‘independent ones,’ who had been diplomats and brokers of the entire northwest
were now being referred to as the ‘road allowances people’.7
Notably, in Alberta, it was the provincial government that had to step in to address the
deplorable living conditions of the Métis, which Canada’s failed scrip system had
created. These provincial efforts ultimately led to the creation of 12 Métis colonies
throughout the province as ameliorative initiatives to address the needs of Alberta Métis.
While Alberta unilaterally cancelled 4 of these Métis colonies at a later date, 8 of these
colonies continue today as the Alberta Métis Settlements.
5 Order-in-Council P.C. 918, May 6, 1899, p. 2.
6 Ewing Commission Report, A.R. in Cunningham v. Alberta at the Supreme Court of
Canada, Vol. II, p. 118.
7 Canada. Royal Commission on Aboriginal Peoples, Report of the Royal Commission of
Aboriginal Peoples, vol 4 (Ottawa, 1996) at p. 212.
4
Canada’s breaches of its constitutional obligations and duties flowing from the 1870
Order, the scrip system and its jurisdiction for the Métis pursuant to s. 91(24) of the
Constitution Act, 1867 remain as outstanding Métis claims against the federal Crown.
These claims specific to northeastern Alberta, amongst other issues,8 will be further
investigated and documented through this Project, and will form the basis for
negotiations with Canada or the filing of a formal claim against Canada.
Is this Project related to the recently released MSR Report on Métis Rights?
Yes. The MSR report recommended that Canada need to establish a formal process for
addressing and resolving Métis claims. Specifically, Mr. Isaac cited the longstanding,
unresolved grievances resulting from the federal Métis scrip system as an example of
why such a process is needed:
Some of the examples of unresolved Métis claims (some federal and some
provincial) include, the Métis land claim in North-West Saskatchewan, concerns
regarding the Cold Lake Weapons Range and its effects on Métis harvesting
activities, implementation of Dominion Lands Act related scrip commissions,
Treaty 3 Adhesion, harm caused by the Federal Pasture Lands Policies where
Métis communities in Manitoba and Saskatchewan were removed in the 1930s,
and various claims against governments regarding the failure of the Crown to
consult the Métis, among others. Addressing outstanding Métis claims in
inextricably ties to a Section 35 Métis rights framework. (MSR Report, p. 30)
The work completed through this Project will be used for future negotiations with Canada
on this issue or the filing of a formal claim against Canada in the future.
Is the Claim for Specific Lands Owned by Third Parties?
No. The claim is not asking for the return of specific lands. Nor is it about proving that
the Métis have Aboriginal title in relation to specific lands (at this time). It is a claim
against Canada in relation to breaching its outstanding constitutional obligations owing to
the Métis flowing from the 1870 Order and the Métis scrip system.
With that said, any potential future negotiation in relation to this claim will need to
involve lands for the Métis in northeastern Alberta. Within any future negotiations,
however, the rights and interests of third parties will need to be respected and the
provincial government will be a necessary party as the owner of most available Crown
lands the region.
8 For example, there is an outstanding question on whether scrip, which dealt with the
Métis as individuals, was even capable of ‘extinguishing’ the recognized ‘Indian title’ of the
Métis.
5
In addition, as contemplated by s. 35(3) of the Constitution Act, 1982, the Métis will want
to ensure that any future negotiated agreement with the Crown is recognized as a ‘land
claim agreement’ under that provisions of the Constitution in order to ensure the
agreement is constitutionally-protected and recognized as a modern day treaty with the
Crown.
Is the Claim against the Alberta Government?
No. The claim being investigated and developed under this Project is against Canada for
its failings under the federal Métis scrip system. It is not a claim against the provincial
government. With that said, however, if Canada agrees to negotiate on these issues with
the Métis, the Alberta Government would likely need to become involved because its
jurisdictions under s. 92 of the Constitution Act, 1867 would likely be implicated,
including its potential role in the fulfillment of any negotiated settlement as the owner of
provincial Crown lands.
Does this Project only deal with Métis in Northeastern Alberta?
While the research and legal analysis undertaken as a part of this Project will be specific
to the Métis in northwestern Alberta, it will be a ‘test case’ for all Alberta Métis because
similar scrip commissions were established throughout the province. It is the MNA’s
goal to establish negotiations with Canada for all Alberta Métis, however, this Project is
an attempt to start somewhere and the Wood Buffalo Métis Locals have agreed to cost
share the work with the MNA.
Is this Claim similar to the one recognized by the Supreme Court of Canada in the
Manitoba Métis Federation Case?
Yes, however, instead of being based on the land grant provisions in s. 31 of the
Manitoba Act, 1870, this claim is based on a different constitutional promise to the
Metis—the 1870 Order—and the Métis scrip commissions established under the
Dominion Lands Act, 1879 to implement that constitutional promise. Similar to the
Manitoba Métis Federation Case, the Métis argue that the federal Crown failed to
implement a constitutional promise to the Métis in a manner that gave effect to its
purpose.
July 25, 2016

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s