Appendix: The Fort McKay Métis Nation Position Paper on Consultation and Self-Government
By Fort McKay Métis Nation Council1
In February 2020, the Fort McKay Métis Nation (FMMN) was the first Métis community to “credibly assert” its Métis Aboriginal rights under the process outlined by the Government of Alberta.2 In so doing, it joined the Alberta Métis Settlement’s General Council as the only Métis organizations authorized to negotiate with the Crown in the province and for which consultation may be legally required.3 The decision was lauded by many in the Métis community who are also seeking to be recognized and criticized by others who have a different conceptualization about who should represent Métis community rights.4 This paper is meant to share FMMN’s experience, providing their position on what they believe effective Crown consultation will look like moving forward and asserting that this recognition is a first step toward becoming a self-governing Métis Nation.
This paper is broken into three sections. First, it outlines the Fort McKay Métis Nation’s history and the process that it followed to demonstrate its status. Second, it discusses the importance of consultation for Fort McKay as a key part of the Nation’s move toward self-government. Finally, it outlines Fort McKay’s current governance structure and its vision for the future now that the provincial government has formally recognized it as a rights-bearing Métis community through the credible assertion process.
Evolution of Fort McKay Métis Governance and Credible Assertion
Métis members in Fort McKay have organized themselves in several ways since the 1960s. They have been members of the Fort McKay Community Association, created the Red River Point Society, and constituted Métis Local 122, superseded by Métis Local 63 in 2005 within the Métis Nation of Alberta (MNA). Yet none of these societies provided the tools necessary for the Fort McKay Métis to effectively govern themselves. This is perhaps not surprising given that many of the problems experienced in Fort McKay were relatively new. The Métis Nation of Alberta bylaws were originally “formed to provide unified political advocacy on behalf of Métis communities in the face of Crown intransigence.”5 The MNA was initially imagined as an advocacy organization, not one meant to deliver the structures of self-government. Therefore, the MNA’s bylaws fail to effectively explain the roles and responsibilities of the different levels of MNA government. At various times, all the levels have attempted to speak for local people in Métis communities.6 While there have been conversations about establishing a new set of MNA bylaws or even a new constitution to clarify these (and other) deficiencies, those conversations have been ongoing since at least the 1980s, and the governing bylaws have not changed substantively since 1984.7
By 2010, the Fort McKay Métis had found that the MNA bylaws precluded their own effective community management. As a result, that year, they established the Fort McKay Métis Community Association (FMMCA), the precursor to today’s Fort McKay Métis Nation. Throughout the process of creating the FMMCA, leadership undertook a deep engagement with community members, ensuring the new organization’s bylaws met customary and conventional good-governance codes and enshrining the community’s Métis identity and rights. Additionally, the leadership met with interested outside groups, most importantly the Fort McKay First Nation, to maintain the important connectedness within the larger Indigenous community of Fort McKay. This set the groundwork for the community as a whole to meet the varied and difficult challenges brought by 120 years of government interference, ensuring that “no one is left behind.”
When the FMMCA was established, it was the community’s hope that focusing on effective governance at the grassroots level might spark a revitalization of the MNA, encouraging the provincial organization to refocus its attention on issues of provincial importance and to support local communities in a federated governance model, where the majority of legislative power decision-making power stayed local. It was their view that Fort McKay should continue to be one of the Otipemisiwak, “the people who own themselves,” and not beholden to rules designed by people who did not understand the unique history and culture of the Fort McKay Métis.8
From 2010 to 2019, the Métis of Fort McKay remained members of the MNA, though the local governance functions of the community — including the management of leased land and financial agreements — were moved over to the FMMCA. Since the mid-2000s, the Fort McKay Métis (through Métis Local 63) participated in several initiatives supporting its vision for a decentralized Métis governance structure.9 They also participated in regional Métis groups with other like-minded Métis organizations, hoping to uplift all the members while not replacing any member’s “institutional independence.”10 Unfortunately, their call for a federated governance model was largely ignored, and the MNA moved forward with its negotiations with the Alberta government based on the idea that it was the only Métis organization able to represent Métis people in the province. On 1 February 2017, in an effort to enshrine this idea, the MNA signed a Framework Agreement with the province, with a key purpose of developing a provincial Métis consultation policy.11
In its negotiations with the Alberta government, the MNA claimed it was the only rights-holding body in the province and no other individual group or organization could represent Métis rights without oversight from the parent organization. In preparation for the negotiations, the MNA began to amend its bylaws to reflect this centralized vision. For example, in 2016 the MNA passed a new “oath of membership” that required members to swear:
I agree to the Métis Nation’s Bylaws and policies, as amended from time to time, and, voluntarily authorize the Métis Nation to assert and advance collectively-held Métis rights, interests, and claims on behalf of myself, my community and the Métis in Alberta, including negotiating and arriving at agreements that advance, determine, recognize, and respect Métis rights. In signing this oath, I also recognize that I have the right to end this authorization, at any time, by terminating my membership within the Métis Nation.12
The new Oath makes the MNA the only administrative body that could represent individual Métis people or a community’s rights and suggests that if individuals (or communities) disagree with it, their only means to seek redress would be to “terminate” their membership. The oath was thrust upon the membership despite opposition from several individuals and smaller dissenting Métis communities, including Fort McKay.13 The oath also failed to recognize the authority of the Métis Settlements General Council, which had signed a consultation agreement with the province a few months earlier and was recognized as a separate Métis rights-holding body.14
This move to consolidate power within the MNA continued in the “Framework Agreement for Advancing Reconciliation between the Métis Nation of Alberta and Her Majesty the Queen in Right of Canada.” In the document, the MNA asserted that they were the only administrative organization able to represent “collectively held Métis rights, interests and outstanding claims against the Crown” in Alberta. However, Powley, and nearly every court decision after that, has determined that Métis communities — much like Indigenous communities throughout Canada — are better understood as small and regional in scale and organization.15 It is unsurprising that the federal government and MNA would propose such a solution, for, as demonstrated through the specific claims process, Crown negotiations with multiple groups representing First Nations’ rights can be time-consuming and challenging.16 The agreement has the potential to exclude from reconciliation with the Crown the Métis groups in the province that have long and verifiable histories — groups like the Fort McKay Métis Nation. It is Fort McKay Métis Nation’s belief that such a move risks replacing a colonial master with a new, neo-colonial one. Their concern is that the MNA will not recognize the inherent rights-holding communities and will deny them the ability to negotiate directly with the Crown to remedy historical wrongs.
Fort McKay also believes that if Métis collectives choose to represent themselves, the Crown needs to recognize that choice and work with those groups: for, as was explicitly stated by the Supreme Court of Canada in the seminal Powley decision, “a Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.” Such an approach aligns with jurisprudence that has continued to accept that Métis s.35 rights are held by local and regional communities that have a distinctive collective identity, live together in the same space, and share a common way of life.17
Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) repeatedly affirms that Indigenous peoples have the right to “self-determination,” “self-government,” and the right to a “nationality.” As per the Declaration, the Fort McKay Métis Nation has an inherent right to exist and to defend their own Indigenous rights; such rights cannot, and should be allowed to, “belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.”18
Together, these moves seem to foreshadow the MNA’s preference for a governance structure mirroring that of the Métis Nation of Ontario, where local and regional offices ultimately report to the provincial office and powers are largely centralized.19 However, in comparison to the MNA, the Métis Nation of Ontario had a relatively shallow history (the organization was only founded in 1993) and no legacy governance structures similar to those that exist in the MNA.20 Furthermore, the Métis of Fort McKay believe it absurd that a new centralized government model might be foisted upon them and other Métis in northeastern Alberta, particularly when the proposed centralized system failed to take into account the fact that communities like Fort McKay have been governing their own affairs throughout the community’s history. In Fort McKay’s view, the current governance model being proposed by the MNA, if recognized by either the federal or provincial government, would mean local communities would no longer be Otipemisiwak and would instead be placed under the thumb of a centralized provincial office that purports to govern previously autonomous communities.
This shift in the MNA’s vision was accompanied by an increasingly interventionist stance. The MNA was beginning to participate in regulatory processes, government monitoring initiatives, and industrial negotiations that had historically never been part of its mandate.21 Both the provincial negotiations and interventions created a great deal of uncertainty regarding how Métis consultation within Fort McKay’s traditional territory should proceed. They undoubtedly caused challenges and additional uncertainty for industry and government, delaying decision-making processes for everyone involved.
Shortly after the MNA instituted its new oath of membership, the Court of Queen’s Bench in Alberta issued its Fort Chipewyan decision.22 Before 2016, the Government of Alberta had provided little direction to Métis groups seeking formal recognition. Fort Chipewyan helped to lift the veil regarding how a community might go about making a credible assertion claim, as noted by legal scholar Moira Lavoie:
The Court in Fort Chipewyan set out two requirements for Métis organizations seeking to enforce the duty to consult under the Haida test, but whose governance structures are not statutorily recognized by the Crown. First, the organization must provide credible evidence that the organization’s members meet the requirements of the Powley test for Métis identification. Second, the organization must provide credible evidence of its representative authority to enforce the duty to consult.23
Upon reviewing the decision, Fort McKay — unsure how the MNA’s negotiations with the province might proceed — commissioned two reports. The first provided a thorough genealogical assessment of the Métis community, and the second reviewed the community’s history. Upon receiving the reports, the community directed the FMMCA’s membership registrar to undertake a comprehensive review of membership information (primarily birth records and other collected genealogical data) to compare it to the findings of the two research reports. The comparison confirmed what the community members already knew: that the FMMCA members were clearly connected through kinship to the historic community of Fort McKay and that, together with their Fort McKay First Nations relations, the group had a long history of governing themselves and representing their own Indigenous rights.
Between 2017 and 2018, and after consultation with its members, the FMMCA board took steps to formalize its governance structure to become a self-governing nation. That included developing a Fort McKay Métis Nation constitution. It also ramped up negotiations with the Alberta government to secure its land base and entered into a conversation with Alberta to determine the process by which the Nation could submit its own credible assertion claim. Through these actions, the FMMCA hoped to actualize what their research and members were telling them: that they were their own people, capable of governing themselves, and that they were unwilling to relinquish their personal and community autonomy to the MNA or anyone else.
As the Fort McKay Métis undertook these initiatives and began to assert their independence, they realized that their vision was incompatible with that of MNA, which continued in its attempt to centralize governance structures in the province. By late November 2019, the community collectively made the difficult decision to sever their relationship with the MNA.24 Subsequently, the FMMCA’s bylaws clarified that they were the only group that could represent Fort McKay Métis community members’ rights. This is in contrast to the MNA bylaws, where, as the Fort Chipwewyan court case demonstrated, it remains unclear whether members’ rights are represented at the local, regional, or provincial level. The FMMCA’s bylaws helped the community to satisfy one of the more challenging aspects of Alberta’s credible assertion test, demonstrating that only it was authorized to represent the contemporary Metis community in Fort McKay. This authorization, coupled with the commissioned research — which demonstrated that the vast majority (upwards of 90 percent) of members could trace their ancestry to the pre-1900 Indigenous community of Fort McKay — cemented the community’s claim.25 The evidence was reviewed by the government, which granted the Fort McKay Métis’s credible assertion claim on February 13, 2020.26
Otipemisiwak: The People Who Govern Themselves
The major tension experienced by the Fort McKay Métis as they moved toward nationhood was the lack of clarity regarding who could represent a Métis community. The tension had existed due to the lack of federal or provincial statutes recognizing Métis governance structures.27 While Fort McKay does not advocate for a colonial “rubber stamp” from the Canadian or Albertan government, it does believe it is necessary that the governance structures developed by any group wanting to represent a Métis collective in fact reflect the historical reality of the community over which they claim authority. Fort McKay demonstrated that they have a long history of unique Métis governance that has persisted from the mid-nineteenth century to the present. As such, Fort McKay agrees with Lavoie when she states that “we should look to the Métis communities themselves for guidance on what constitutes proper Métis representative authority, not simply the preferences of the courts or the Crown,” while adding that a larger Indigenous governmental body should never be able to claim or appropriate the rights of a smaller grassroots organization. This position is not unique to Fort McKay and has been implemented by the courts, which have consistently, and without exception, found that s.35 Métis rights are held locally by communities and not by national or provincial organizations. It is also worth noting that this position is a key tenet of UNDRIP, which recognizes the authority of Indigenous communities to represent themselves. As such, when a group such as Fort McKay provides credible evidence that it exists and represents the majority of its ancestors, that authority must be recognized. It should not be subject to challenge by other groups whose claims are not as strong.28
Furthermore, Fort McKay also believes strongly that nationhood is practiced, not imagined in Vancouver and Toronto law offices, far from the Métis homeland. As such, the Fort McKay Métis Nation has worked hard to develop a modern governance structure that meets the needs of the membership. The community’s membership code pays special attention to the unique history and culture of the community. It ensures that each member has a verifiable connection to the historic Fort McKay community or has passed a vigorous acceptance process that replicates how members would have been accepted into the community in the past. The constitution has carefully incorporated direct democracy and transparency, with members meeting quarterly to vote on key issues such as constitutional amendments, community direction, and agreements negotiated with industrial developers. Elections are carefully managed through an election code, and impartiality is maintained by an independent election officer.
In addition to enshrining the structures of good governance, the Nation takes its fiduciary responsibilities to its members extremely seriously. Annual budgets are audited by an independent third party and approved by the membership at every annual general meeting, and budgetary priorities are determined through community strategic planning on a yearly basis. Priorities in the areas of culture, health, education, land, and housing are carried out by an independent and qualified professional bureaucracy. Funding for these initiatives comes primarily from the McKay Métis Group of Companies, a social enterprise owned by community members.29 The profits that these companies generate are reinvested in the Métis community, making it possible to provide all members with a supplemental group health plan, access to affordable housing, and bursaries for post-secondary education. The Fort McKay Métis Nation has also signed multiple agreements with the Fort McKay First Nation, and many of the services — including a daycare, nursing home, and, in the long-term, a community-managed charter school — will be jointly owned and operated by the two entities. These partnerships extend to emergency services and have allowed the community to respond in a coordinated and effective way to disasters such as the 2016 wildfire and the 2020 COVID-19 pandemic, keeping members safe regardless of whether governments deem them to be legally First Nation or Métis. In all these ways, the Fort McKay Métis leadership is fulfilling the vision of past community leaders to lift the community as a whole and ensure that no one is left behind.
As Fort McKay’s history demonstrates, the community has had, at best, only weak connections to a larger regional Métis political body or a pan-Métis consciousness that seems to be much more a product of the twenty-first century than the nineteenth or twentieth.30 Furthermore, the community’s unique kinship connections and cultural history have persisted, making the formal establishment of Fort McKay Métis Nation possible. It was the local leaders who defended the community throughout the twentieth century. Thus, it is Fort McKay’s position that while a larger Métis Nation may exist, it exists in the same way that a Cree or Dene Nation exists in northern Alberta: as a broad group of people connected through culture, language, and kinship, but politically represented by a number of independent First Nations in the province. The idea that the specific interests and negotiations of the Fort McKay First Nation could be taken up by a regional or provincial First Nations office would seem ludicrous to most observers, and the Fort McKay Métis Nation posits that the same level of skepticism should be levelled toward any provincial group that asserts it has the authority to represent Fort McKay Métis Nation members. In short, local communities are best positioned to represent themselves, and though regional and provincial organizations can support this work, they cannot and should not be allowed to supplant it.
When the Métis National Council was formed in 1983, it was structured as a federation, with each member maintaining its own autonomy to negotiate independently with other levels of government and each other.31 This is the governance model that the Fort McKay Métis Nation supports and believes should be extended throughout the Métis Nation. Communities that are able to demonstrate through history, genealogy, kinship, and culture that they are Otipemisiwak should assume the authority to self-govern. With their status now recognized by the Alberta government, Fort McKay is poised to continue implementing its plans for self-government.32 The Métis community has already purchased land, passed a community constitution, solidified its nation-to-nation relationship with the Fort McKay First Nation and other Indigenous groups, built a structured administration that provides services to its members, and confirmed the legitimacy of the multiple community benefit agreements it had negotiated (and continues to negotiate) with oil sands operators in the region.
The affirmation of the Fort McKay Métis Nation’s status in both the eyes of the Métis national governing body and the province of Alberta has opened multiple doors for the community’s future growth and prosperity. The primary purpose of this paper was to briefly provide the background regarding the Nation’s journey as a model for others who may wish to undertake a similar path. Recently, Fort McKay became a founding member of the Alberta Métis Federation, which recognizes the autonomy of its member communities to represent themselves with governments, other Indigenous groups, and industrial partners.33 Through the AMF, Fort McKay hopes to continue on its path toward Métis self-government with other like-minded communities who believe they, too, are Otipemisiwak and who wish to represent themselves. While it is understandable that governments and provincial groups may find it more politically expedient to deal with a single organization claiming to represent all Métis citizens and rights, this claim does not effectively take into account Fort McKay’s unique history and their constitutional right to Indigenous self-government. Furthermore, this position does not face the reality that many other groups in the Métis homeland may similarly wish to become self-governing entities within the broader nation: just as many First Nations make up the Assembly of First Nations, many Otipemisiwak are part of the larger Métis Nation. While there can be little doubt that a larger Métis Nation of some type exists in Western Canada, it must be recognized that this nation is made up of the Otipemisiwak—the people who own themselves — and they will be the ones who will effectively establish new forms of Métis self-government in the twenty-first century.