Epilogue: From Community to Nation — The Evolving Relationship between the Métis Nation of Alberta and the Fort McKay Métis Nation

On March 28, 2019, the Métis Nation of Alberta (MNA) took out paid advertisements in the Fort McMurray Today and other Post Media news outlets announcing that Ron Quintal was no longer the president of the Fort McKay Métis Local 63 and that governments, industry, and Métis “Citizens” should engage directly with the MNA Region 1 president James (Jimmy) Cardinal and the provincial president Audrey Poitras if they wish to consult with the Fort McKay Métis.¹ MNA President Poitras explained that consultation in northeastern Alberta needed to occur at a regional scale as this is what was “ethically, legally and politically” the only way “governments, industry players,” could discharge their “duty to consult” with the Métis Nation.² To this, President Quintal responded that: “Everything [the Fort McKay Métis] did was under the community association . . . We still negotiate directly with government and industry on projects and our rights associated with the land. From our perspective, not a lot has changed.”³ The MNA’s assertions came after the Fort McKay Métis had decided to sever their relationship with the MNA and assert their own authority as a self-governing Métis Nation.

For the next year, Fort McKay and the MNA sought clarity on the issue of representative authority and the right to self-representation through the courts.⁴ In February 2020, the Alberta government announced that the Fort McKay Métis had achieved “credible assertion,” providing them with the authority to represent members “when Crown decisions have the potential to impact their member’s credibly asserted Métis Aboriginal harvesting rights.”⁵ As described in the introduction, the process was not a short one, with the Fort McKay Métis submitting material (including an early version of this community history) in 2017 for the government to review. After careful consideration, the government agreed that the Fort McKay Métis held Métis Aboriginal rights.

In reaction, the Métis Nation of Alberta stated that they vehemently opposed Alberta’s decision, claiming, without substantiation, that the government’s decision to grant the Fort McKay Métis’ leadership the authority to represent their community was rooted in “oil sands money, greed and a desire to not be accountable to the Métis people.”⁶ In a second release on the same day, President Audrey Poitras explained that the MNA would not “allow the Alberta Government to unilaterally divide the Métis Nation for its own agenda. The MNA is the government for the Métis Nation within Alberta. We will not let governments divide and conquer our Nation.” The second release also quoted MNA lawyer Jason Madden, who stated:

Alberta’s decision to recognize the FMMCA as the representative of a rights-bearing Métis community for the purposes of consultation highlights just how broken Alberta’s system is. This decision cannot be reconciled with repeated Supreme Court of Canada and Alberta court decisions on Métis rights or Alberta’s constitutional duties owing to the Métis. It will not discharge the Crown’s duty to consult, and it will not provide regulatory certainty. Alberta has just opened a can of worms for short term gain, but it will have long-term negative consequences for Métis rights.⁷

Core to Poitras and Madden’s argument is the idea that the Métis Nation of Alberta had been singularly representing the Métis people of the province since at least the 1930s. For them, the MNA

is the government of the Métis Nation within Alberta. For over 90 years, our government has been built by our people, for our people. The MNA has the only objectively verifiable registry of Métis Nation citizens and legitimate Métis rights-holders in Alberta. We have over 42,000 registered MNA citizens, including over 3,000 living in northeastern Alberta. Every four years, we hold province-wide democratic elections. Annually, our citizens gather at an assembly to give their leadership direction. This is how the MNA ensure it is accountable to the Métis citizens from across the province.⁸

What is important in this statement is the notion of the Métis Nation “within” Alberta, which points to the idea that Métis people are part of a singular nation represented by provincial organizations in the west. As further explained on the MNA’s website:

We, the Métis Nation, are Otipemisiwak—the people who own ourselves. We have an inherent right to self-determination and self-government. For too long, Canada’s colonial policies denied this right. We were pushed to the margins in our own homeland. Now, by governing ourselves, we can determine our own future and build a strong Métis Nation based on Métis rights.⁹

This idea of a singular Métis Nation has gained momentum in recent years, as both provincial bodies and a supporting group of academics and lawyers have increasingly championed the notion, articulating it in a series of books and articles.¹⁰ Most recently, the idea has been placed in juxtaposition against other Indigenous groups who are attempting to claim a new “Métis” identity in British Columbia, Quebec, Ontario, and eastern Canada, many of which have questionable claims of having “Métis” or even Indigenous roots.¹¹ In reaction, the definition of “Métis-ness” has been increasingly narrowed. Some argue that only those with clear “Red River” genealogical lineage are members of a true Métis Nation.¹²

This narrowing has not only limited in theory who can claim to belong to the “Métis Nation,” it has also constricted conversations about how the Nation should be governed. In this sense, this same group has argued that the “Métis Nation” has always been self-governing through a series of laws and customary norms that extend through history and over a vast territory. Unfortunately, this line of argumentation disregards the fact that many communities like Fort McKay have unique local and regional identities and governance structures of various sizes and types. Much like their First Nation relatives, these Métis groups (Nations?) are better understood as a quilted patchwork across the west, stitched together though language, culture, and economy, but usually maintaining their own unique traits and attributes. This point is well articulated by Robert Alexander Innes when he writes:

emphasis on the racial difference of the Métis people from First Nations and the tension between them belies the fact that these groups in the prereserve period, and into the postreserve period, shared many cultural characteristics, such as kinship practices. What becomes clear is that the Métis people are Indigenous not only because of the inherited ancestral lineages from First Nations but also because of their shared cultural practices.¹³

In particular, Innes argues that the study of the Métis, like the study of First Nations more generally, is best completed at the “band” or local level, as studies completed at the “tribal” or national level tend to gloss over the “autonomous natures of band societies.”¹⁴ Furthermore, as pointed out by Ens and Sawchuk, “there seems to be a gap between the way the Métis organizations are defining identity and the way many Métis actually feel about their identity,”¹⁵ with those organizations, backed by Métis nationalist scholars seeking to construct a national myth that, by and large, excludes the possibility of local-level differences that may exist between Métis (and possibly other closely related) communities.¹⁶ Therefore, the question of Métisness has become less a question of historical reality and more a question of political expedience, which helps explain the MNA’s attack on the Fort McKay Métis Nation’s right to exist.

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To fully understand the MNA’s desire to challenge the Fort McKay credible assertion decision, one needs to look back at the 2015 federal election, when the Liberal Party of Canada, led by Justin Trudeau, committed his government to a new era of reconciliation that would redefine the country’s relationships with all Indigenous people. In his first mandate letter to Carolyn Bennett, Trudeau asked the new minister of Indigenous and Northern Affairs, to “work, on a nation-to-nation basis, with the Métis Nation to advance reconciliation and renew the relationship, based on cooperation, respect for rights, our international obligations, and a commitment to end the status quo.”¹⁷ On the surface, this move seemed extraordinary and positive, acknowledging the need to establish a new relationship with Métis people in the country, something the federal government had failed to do previously for practically its whole existence. However, this move was also opportunistic, as it asked the minister to negotiate an agreement between the federal government and the Métis Nation as represented by the provincial members of the Métis National Council. Such a move would work to the government’s benefit, as it would limit the number of potential groups seeking self-government agreements to which the federal government would be required to negotiate, sign, and administer.¹⁸ In short, the interests of both the federal government and the members of the Métis National Council were aligned — the federal government, through recognizing the Métis single government, would provide the group with authority, while the existence of the Métis National Council would limit the number of organizations with which the federal government would potentially have to negotiate the existence of Métis rights.

Perhaps unsurprisingly, the provincial organizations and the federal government moved quickly to take advantage of the opportunity. In 2017 and 2018, the federal government signed framework agreements with the Métis Nation of Alberta, the Métis Nation of Ontario, and the Métis Nation–Saskatchewan, along with an MOU with the Métis Nation of British Columbia.¹⁹ In 2021, the government ratified a Self-Government Recognition and Implementation Agreement with the Manitoba Métis Federation, which will build on a separate $154 million dollar funding agreement signed with the MMF in 2018.²⁰

It is beyond the scope of this work to analyze these agreements individually. Still, it is worth investigating the Alberta agreement within the context of the government’s conflicts with Fort McKay. Specifically, the framework agreement with the Métis Nation of Alberta was rooted in the idea that the MNA would become a self-governing nation with a working constitution that recognized the organization as the sole representative of the “Métis” in the province. It was, therefore, vital for the MNA to develop a constitution that clearly and unequivocally (at least in the eyes of the federal government) demonstrated that it represents all Métis people in the province. As a result, in December 2019, the Métis Nation of Alberta established a Constitution Commission with a mandate to draft a new constitution, engage with citizens, and then negotiate the federal Métis Government Recognition and Self-Government Agreement similar to the one recently signed with the MMF. This work would continue over the next three years and culminate in the ratification of the Otipemisiwak Métis Government Constitution in November 2022.²¹

Throughout the constitution drafting process, the MNA has described itself as “the representative voice of the Métis people in Alberta”²² and the “only representative of Métis in Alberta with which Canada has signed a Self-Government Agreement.”²³ These statements ignore the existence of communities such as Fort McKay (and others), who have a long history of self-governance and wish to speak for themselves rather than cede representation to a provincial governing body.²⁴ Regarding communities like Fort McKay, the MNA argues:

By signing the MGRSA, Canada recognized that the MNA is mandated by the Métis Nation within Alberta to implement our inherent right to self-government. The Supreme Court of Canada has recognized that Canada is the level of government with constitutional responsibility for the Métis. After a long process of negotiation, Canada and the MNA have established a nation-to-nation, government-to-government relationship leading to full recognition of our right to self-government in Canadian law.

No other group claiming to speak for the “Métis” in Alberta has been recognized by Canada as representing Métis Nation citizens with a right to self-government, and no such group has signed an agreement that will lead Canada to recognize it as a Métis government. Only the MNA is on track to deliver genuine self-government for the Métis Nation within Alberta.²⁵

This position, though, clearly does not align with the historical reality in Fort McKay, where the community has been self-governing and protecting their own rights for generations. Based upon this history, I argue that the Fort McKay Métis Nation has a right to exist and continue governing itself. Recently, the courts agreed with this interpretation, definitively stating that the Métis Nation “within” Alberta do not have the authority to represent all Métis people in the province without their express authorized consent.²⁶

This position is supported not only by the history of the community. As the federal court noted, it is also supported by national and international jurisprudence, which has, without exception, found that individual Indigenous communities hold the authority to represent and govern themselves. In what follows, the international and national legal frameworks for Indigenous governments are briefly examined, as well as relevant court decisions on Indigenous self-governance and existing Métis governance structures in Alberta and Canada. My purpose is to provide a detailed account of the legal parameters and criteria for Indigenous governments.²⁷

On a foundational level, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states repeatedly that Indigenous peoples hold the right to self-government at the local level. UNDRIP affirms the right of Indigenous peoples to “self-determination,” “self-government,” and the right to a “nationality.”²⁸ Notably, Article 3 enshrines the right to “self-determination,” Article 4 recognizes that in “exercising” that right, Indigenous peoples have the right to “autonomy or self-government in matters relating to their internal and local affairs, and Article 9 affirms the right to “belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned.” Following these articles laid out by the Declaration, the Fort McKay Métis Nation has an inherent right to exist and defend their own rights.

Canada was one of four nations that rejected UNDRIP when it was adopted in 2007 due to issues around land claims and the impact of the duty to consult on resource development. Later, in 2010, Canada joined the other Anglo-settler nations (United States, Australia, and New Zealand) that had previously rejected the Declaration and approved it as an “aspirational” document. In 2016, the Canadian federal government signed UNDRIP.²⁹ An act creating a legislative framework to implement UNDRIP came into force on June 21, 2020, requiring the Government of Canada to act to achieve the Declaration’s objectives and align federal laws with the Declaration.³⁰

Larry Chartrand has examined the avenues through which the Métis must work to assert self-governance, arguing that while international law (UNDRIP) clearly and respectfully affirms the Métis right to exercise self-government, practically, the Métis have been forced to argue their rights under Canada’s national legal frameworks through a colonial court system that does not view Indigenous peoples as being “civilized enough to possess legitimate international personality or competing sovereignty requiring diplomatic negotiations on the level of state-to-state relations.”³¹ Despite this, he argues that it is possible for the Métis to successfully claim the right to self-government within the Canadian legal framework. Chartrand details how courts often recognize the right to engage in a specific “practice, custom, or tradition” but rarely recognize the Indigenous “right to govern.” To illustrate his point, Chartrand discusses the case of the Manitoba Métis Federation (MMF), where members’ rights to engage in traditional harvesting were recognized while the MMF’s right to govern those members’ traditional harvesting was not.³² To legally pursue the “right to govern,” Chartrand points to the necessity of establishing self-governance as a traditional practice that occurred before a determined date of effective government control. This, of course, is what Fort McKay has done, building their own self-government based upon the traditional practices of the community in terms of initially managing their membership, land, and relationships with outside governments. They also worked to defend these rights as the government increasingly exerted power upon them by negotiating and defending their land, managing their membership codes, and negotiating with industry and government to protect their rights (as best as the colonial laws would allow). It is also important to note that this was often done in partnership with the Fort McKay First Nation, despite the repeated efforts of the government to deal with each group independently. And though these interventions and defences were not always successful, they do show the community has taken the steps of “just doing it,” developing their self-governing processes with the federal system of government.³³

Within Canada, the definitive national legal framework for Métis rights is Section 35 of Canada’s Constitution Act, 1982, which recognizes the Aboriginal rights of First Nations, Inuit, and Métis. However, the interpretation of and the criteria for asserting Métis s.35 rights has been left to the courts and government commissions, including the 1996 Royal Commission on Aboriginal Peoples (RCAP). The RCAP provided a definition of Métis (also used by the Supreme Court in R. v. Powley) that emphasizes both ancestry and culture.³⁴ The Métis identity in s. 35 of the Constitution Act, 1982, according to the RCAP, is “not merely a question of genetics,” and the term Métis does not simply refer to all individuals of mixed Indian and European ancestry. Instead, it refers to those of mixed ancestry who developed their “common culture,” customs, and group identity distinct from their Indian, Inuit, and European ancestors.³⁵ It follows that 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.”³⁶

For Fort McKay, the 1996 RCAP report crucially contends that “there are many distinctive Métis communities across Canada, and more than one Métis culture as well,” rather than the singular Métis Nation as advocated for by provincial Métis organizations like the MNA and supported by academic and popular writers alike. The authority to decide which nations constitute a larger Métis nation is determined by the nation and each community. The RCAP thus provides a definition of Métis that allows for multiple locally distinct Métis cultures and puts the authority to define nationhood at the community level.³⁷ It is important to note that this argument largely followed Justice Grammond’s decision, in which he deemed it inappropriate for Canada or the MNA to represent other Métis governments, such as the Métis Settlement General Council and the Fort McKay Métis.³⁸ However, the parameters and thresholds for recognizing s.35 Métis rights-bearing communities have been left to the Canadian court system to define. Again, Fort McKay meets this definition of being a distinctive Métis community, evidenced by their close genealogical connections, continued defence of their self-governing community, and recent recognition by the Alberta government. Again, this line of reasoning was important to Justice Grammond, who recognized the Fort McKay Métis Nation’s right to exist outside of the MNA.³⁹

While the Fort McKay Métis, as well as many scholars, do not believe that the question of what is (or is not) a “Métis community” or a “Métis person” should be determined by the Canadian court system, the Supreme Court of Canada’s 2003 Powley decision is a landmark as the first case to set out the criteria for Section 35 Métis rights, providing a test to determine whether a Métis community holds s.35 rights.⁴⁰ In R. v. Powley, two Ontario men charged with illegal hunting argued that their s.35 Aboriginal rights protected their hunting rights as Métis people. In 2003, the Supreme Court of Canada decided that the Powleys were lawfully exercising Métis rights and laid out ten criteria — the Powley test — determining who can hold Métis rights.⁴¹

Considering the right to govern, the Powley decision crucially established that “Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community.”⁴² For communities to claim the right to govern, they must prove that they historically existed and can be identified contemporaneously in the same geographic area (factors 2 and 3) and demonstrate a historical practice of governance (factor 5) that is integral to Métis culture (factor 6) and continues to be practiced today (factor 7). The Alberta government’s credible assertion process adopts these criteria.⁴³

Beyond setting the legal test for establishing Métis s.35 rights, Powley crucially established that Crown inaction in relation to Métis rights could not be justified by 1) difficulties in identifying Métis rights holders or 2) competing Métis representation claims. Powley instead recognized a positive Crown duty to negotiate with the Métis.⁴⁴ However, despite the supposed shift away from the need to prove rights before the courts to trigger Crown obligations and negotiation brought by Powley, the Métis face significant barriers. These include lack of jurisdictional clarity (thus, jurisdiction falls on provinces and deprives the Métis of federal services), lack of access to national treaty negotiation and dispute resolution processes, and unequal treatment across provinces.⁴⁵ In response, Bell and Seaman ask whether the shift from proving rights to negotiating credible rights claims is more theoretical than real for the Métis. In the Alberta context, Bell and Seaman argue that Powley has been erroneously interpreted and applied by emphasizing the “credibility (prima facie strength) of claims.”⁴⁶

As demonstrated in the above history and legal standing, it seems fair for Fort McKay to believe that Métis communities should be able to represent and govern themselves. When such a community makes the claim, the onus should fall upon the Crown to recognize the choice and work with that Métis group. The courts recognized this position, most notably in R. v. Lizotte, a 2009 Alberta Provincial Court case that invoked R. v. Powley. When dealing with the differences in the definition of Métis (as well as other inconsistencies) between R. v. Powley and the Métis Settlements Act, the judge decided that rather than requiring the Métis Settlements to go through an additional process, the Métis Settlements would be allowed to decide for themselves (following the process laid out in the Métis Settlements Act) who meets their membership requirements.⁴⁷ According to R. v. Lizotte, Métis communities that have organized themselves and that meet the conditions laid out in Powley should be recognized as rights-holders. Similarly, Justice Grammond asserts that “what’s good for the goose is good for the gander” and that no one Métis government should be allowed to proclaim its ability to represent others “against their will.”⁴⁸ This position, when applied to Fort McKay Métis Nation, seems to strengthen their argument that they should be allowed to govern themselves and not be forced to conform to a different self-governance structure because the MNA and federal government find it convenient.

This position also seems to align with several other Métis rights cases, where defendants arguing for the existence of a singular Métis Nation to be recognized as encompassing a large region such as “the entire northwest” or the “entire western plains and prairies” have repeatedly been struck down. Specifically, in cases such as R. v. Gooden and R. v. Hirsekorn, the courts found Métis communities existed in clearly defined regions.⁴⁹ Thus, despite attempts to set a precedent for recognition of one large Métis community, the courts have maintained the Powley definition of Métis rights as communal rights, where “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.”

Of note is that among the major cases that have decided on Métis s.35 rights, there has not been a situation wherein a local community of comparable size and organization to Fort McKay have attempted to defend their Aboriginal rights in court. Rather, individual rights-bearers like Steve and Roddy Powley, have been typically supported by larger governance structures like the Manitoba Métis Federation, the Métis Nation of Ontario, the Métis Nation of Alberta, and Alberta’s Métis Settlements. Thus, despite jurisprudence that supports the right of communities to self-govern, an individual Métis community has not had the opportunity to argue in the Canadian court system that the right rests with them. However, given the backing of UNDRIP, RCAP and now Metis Settlements General Council v. Canada (Crown-Indigenous Relation), 2024 FC 487 and given Fort McKay’s long history of a genealogical interconnection and self-government in a close and geographically defined community aligned with the Powley requirements, a continued commitment to good governance and evidence of contemporary practice of self-government, and a commitment to protecting legal rights on the land, it seems that the Fort McKay Métis Nation have a solid foundation upon which to argue for the right of self-government.

This fact was recognized when the Fort McKay Métis gained formal recognition through Alberta’s credible assertion process as a historic and contemporary rights-bearing Métis community that fully meets the thresholds laid out by R. v. Powley.⁵⁰ As demonstrated above, the evidence makes clear that the Fort McKay Métis community was already distinct amongst the larger regional Métis community before effective European control of northeastern Alberta. Further, it demonstrates the historical and enduring connections to the Indigenous community of Fort McKay, which is made up of both Métis and First Nation members, were central to the distinctive culture of the Fort McKay Métis community. Just as in the past, Fort McKay Métis community members self-identify as local Métis community members, remain strongly connected to traditional land in the areas around Fort McKay, and see themselves as part of a distinctive community that wishes to speak for and represent itself with external governments and Indigenous organizations.

This history of self-reliance has recently, and increasingly, been challenged by the Métis Nation of Alberta, which has argued (without substantiation) that Fort McKay’s leaders are not part of an independent Métis Nation, and their decision to continue defending their community’s rights is driven by “oil sands money, greed and a desire to not be accountable to the Métis people.”⁵¹ It could be argued that those representatives of the Métis Nation of Alberta are worried that the provincial government’s recognition of Fort McKay as a self-governing Métis Nation runs counter to their nation-building exercise. Further to this point, perhaps those MNA leaders are worried that the existence of an independent Métis Nation in Fort McKay (and potentially many other Métis Nations in Alberta’s north) with a deep and long history may jeopardize the MNA’s goal to develop a provincial constitution and ultimately negotiate a self-government agreement with the federal government. An agreement that would provide the MNA (whose membership has grown from 29,114 members in 2015 to over 64,000 in 2023)⁵² with millions — if not billions — of dollars of funding for programs delivered provincially and overseen by a president who has been in power for over twenty-five years of an organization that saw less than 10 percent of their 50,000 members cast a vote in the 2018 MNA general election⁵³ and more recently less than 30 percent of the total population voting in the constitutional ratification vote despite the MNA devoting significant resources to advertising and lobbying in support of the agreement.⁵⁴ As noted by President Quintal, on behalf of Fort McKay and a number of other similarly positioned Métis communities and Nations: “We do not support their ‘constitution,’ we know it won’t have any authority over Métis communities like ours, and we will not participate in their referendum. It is nothing more than an effort by a small group of people to amass power. But it seems to be well-funded given the amount of social media advertising we are seeing.”⁵⁵

Despite the political posturing of recent years, the story of the Fort McKay Métis Nation is illustrative. It can help show a different way of imagining the “Métis Nation” and its communities. First and foremost, it shows that to understand the contemporary Métis Nation, it is important to complete historical studies at the local community level, as many groups have unique stories worthy of deep exploration. Furthermore, Métis history and identity cannot be frozen in the eighteenth and nineteenth centuries, as for many, their identities were only fully formed due to events in the twentieth and even the twenty-first century.⁵⁶ Furthermore, Métis communities, particularly many in northern Alberta, cannot, and should not, be studied as discrete groups, separate from First Nations that were often created more through government ascription than by cultural affinity. Instead, scholars need to take time to understand these close connections and consider how government policies forced these Indigenous communities to adapt and ultimately be pushed into separate groups, even though, as demonstrated through the history of Fort McKay, those groups did not necessarily agree with this separation. And finally, particularly in places like Fort McKay, which has experienced massive disruption as a result of industrial development, scholars need to take time to consider how government policies removed Indigenous people not just from private property (as suggested through settler colonialism), but also from Crown-owned land that was managed by the government supposedly for the collective good of the province and country.

The story then of the Fort McKay Métis is one of growth and maturing, reacting to external pressures and using those pressures to form a new, stronger nation, one that is willing and able to lead a new type of Métis organization that recognizes its past and looks forward to the future. In this sense, by uncovering and emphasizing the community’s local past, future generations will be able to look to Jose Grand Bouché, Isidore Lacorde, Edward Tourangeau, Earnie Lacorde, Harry MacDonald, Clara Shott, Dorothy McDonald, Emma Faichney, Henry Shott, Zachary Powder, and many others from the distant and more recent past as their role models: people from the community’s history who worked with their First Nations relatives to build a Métis community that ultimately became the Fort McKay Métis Nation.