Court of Queens Bench of Alberta  
Citation: Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022  
ABQB 6  
Date: 20220104  
Docket: 2003 04935  
Registry: Edmonton  
Métis Nation of Alberta Association  
- and -  
Her Majesty the Queen in Right of Alberta as represented by  
the Minister of Indigenous Relations  
Reasons for Judgment  
of the  
Honourable Justice L. Bernette Ho  
Page: 2  
Introduction..................................................................................................................................... 4  
Background..................................................................................................................................... 4  
The Parties .................................................................................................................................. 4  
The Dispute................................................................................................................................. 5  
A. The Powley Criteria ........................................................................................................ 5  
B. Development of the Métis Harvesting Policy................................................................. 5  
C. The Framework Agreement............................................................................................ 7  
D. Development of a Métis Consultation Policy................................................................. 7  
E. Position of the Parties relative to these Policies and Agreement.................................... 8  
The Record: A Chronological Summary ...................................................................................... 10  
Is the Decision Amendable to Judicial Review?........................................................................... 28  
The Applicable Standards of Review ........................................................................................... 32  
Analysis......................................................................................................................................... 35  
Did Alberta Breach the Duties Owing to the MNA Flowing from the Honour of the Crown? 35  
A. The Unique History of the Métis .................................................................................. 35  
B. The Honour of the Crown: Legal Principles .................................................................... 37  
C. The Duty to Negotiate and What Constitutes a Negotiation?....................................... 39  
Negotiation and the Honour of the Crown Scope and Context ..................................... 41  
(i) What Were the Parties Negotiating?..................................................................... 43  
How Close were the Parties to Finalizing the MCP?........................................ 44  
Position of Locals and other Métis Organizations ................................................... 45  
Alberta’s Position Concerning the Exclusivity of the MNA...................................... 46  
The MNA’s Position on its Bylaws and Oath of Citizenship .................................... 48  
Cabinet’s Position..................................................................................................... 50  
The Federal MNA-Canada Métis Government Recognition and Self-Government  
Agreement ................................................................................................................. 51  
The 2019 Provincial Election and Change in Government ...................................... 53  
(iii) Concluding Remarks Regarding Scope and Context........................................ 58  
Did Alberta meet its Legal Obligations to Negotiate and Act Honourably?............................ 58  
Page: 3  
Was Alberta’s Decision Unreasonable? ................................................................................... 64  
Did the Minister Breach the Duty of Procedural Fairness?...................................................... 68  
A. Factors to Consider ....................................................................................................... 68  
Nature of the Decision Made and the Process Followed in Making it ............................. 69  
Nature of the Statutory Scheme ........................................................................................ 70  
The Importance of the Decision to the Individual or Individuals Affected...................... 70  
The Legitimate Expectations of the Person Challenging the Decision............................. 70  
The Choices Made by the Administrative Decision Maker.............................................. 71  
B. Conclusion on Procedural Fairness.................................................................................. 71  
Nature of Relief Sought by the MNA........................................................................................... 72  
Disposition.................................................................................................................................... 74  
Costs.............................................................................................................................................. 75  
Page: 4  
[1] The Métis Nation of Alberta (the “MNA” or the “Association”) seeks judicial review of a  
decision made by Her Majesty the Queen in Right of Alberta (“Alberta”) as represented by the  
Minister of Indigenous Relations. The impugned decision was conveyed to the MNA on  
September 5, 2019 (the “Decision”) and terminated the parties’ engagement in developing a “non-  
settlement Métis Consultation Policy” (the “MCP”). The MNA submits that Alberta unilaterally  
ending the negotiations breached the honour of the Crown. It additionally asserts that the Decision  
was made without giving the MNA any prior notice, or opportunity to be heard, and provides either  
no or insufficient reasons justifying its decision to terminate the negotiations.  
The MNA seeks an order quashing the Decision as well as a number of declarations,  
including that: (i) Alberta had a duty to negotiate with the MNA to develop the MCP; (ii) having  
entered into negotiations with the MNA to develop a consultation policy, the Crown breached its  
duty to negotiate with the MNA honourably and in good faith in making the Decision; (iii) Alberta  
has an ongoing duty to negotiate with the MNA concerning a consultation policy; and (iv) the  
Decision was unreasonable, including that Alberta breached its duties of procedural fairness owed  
to the MNA.  
During oral submissions, counsel for the MNA confirmed that it was no longer seeking a  
declaration that Alberta breached its duty to develop a policy nor an order that the Court retain  
supervisory jurisdiction between the parties respecting future negotiations.  
The Parties  
The applicant, the MNA, was founded in 1928 and was subsequently incorporated under  
the Societies Act. Its governance structure provides for representation through the MNA’s  
Provincial Council, which has an elected president and vice president. Under the Provincial  
Council are six Regional Councils, each of which also has an elected president and vice president.  
Operating within each of the six Regions are a number of Métis Locals, which are local  
communities affiliated with the MNA. Individual Métis who meet certain stated requirements may  
apply for membership in the MNA. It should be noted that the MNA is not the only organization  
in Alberta which purports to further Métis rights and not all Métis residents in Alberta are members  
of the MNA.  
Members of the MNA are governed by the MNA Bylaws which provide that “a member  
shall also be recognized as being a duly registered citizen of the Métis Nation” based upon the  
MNA’s authority “as the representative government of the Métis Nation within Alberta”. They  
further provide that one of the Association’s objectives is “to stand as the political representative  
of all Métis in Alberta and to promote self-determination and self-government for Métis in Alberta  
and Canada”. The MNA maintains a registry of its members or “Citizens”. At the time of the  
Decision, the MNA had over 40,000 Citizens.  
According to the MNA Bylaws, applicants accepted as Citizens must agree to take the  
following oath of membership (the “Oath”):  
Page: 5  
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.  
The respondent, Alberta Indigenous Relations (“IR” or the “Ministry”), is a Government  
of Alberta Ministry that has undergone various name changes over time, as evidenced by the  
The Dispute  
In order to fully appreciate the nature of the dispute between the parties, it is helpful to  
briefly review the decision, R v Powley, 2003 SCC 43 (“Powley”).  
A. The Powley Criteria  
Section 35 of the Constitution Act, 1982 explicitly recognizes and affirms the existing  
Aboriginal and treaty rights of the Aboriginal peoples of Canada. Section 35 also indicates that the  
term “aboriginal peoples of Canada” includes the First Nation, Inuit and Métis peoples of Canada.  
Aboriginal rights under s 35 are not defined; they vary from group to group depending on the  
customs, practices and traditions that have formed part of a group’s distinctive culture.  
[10] The Supreme Court of Canada in Powley provided a framework for analyzing claims under  
s 35 when considering the question of Métis rights and identity. The Aboriginal right claimed by  
the Métis in Powley was the right to hunt for food. In confirming the existence of this right, the  
Court outlined the basic legal test that must be passed in order to be considered "Métis" for the  
purpose of determining entitlement under s 35. What has become known as the “Powley test” or  
the “Powley criteria” can be summarized as three requirements. Namely, that someone asserting a  
right as Métis must:  
identify as a Métis person;  
be a member of a present-day Métis community; and  
have ties to a historic Métis community.  
[11] The Court also noted at para 50 that:  
…[i]n the longer term, a combination of negotiation and judicial settlement will  
more clearly define the contours of the Métis right to hunt, a right that we  
recognize as part of the special aboriginal relationship to the land.  
[12] Following Powley, some governments have engaged in consultation and negotiation with  
the Métis for the purpose of recognizing or accommodating certain rights through agreements and  
Development of the Métis Harvesting Policy  
[13] In response to the Powley decision, Alberta took steps to acknowledge and accommodate  
certain Aboriginal rights asserted by the Métis. Specifically, Alberta took steps to address: (a)  
Page: 6  
Métis harvesting rights (that is, a right to hunt, fish and trap for food); and (b) instances where  
consultation with the Métis is required because of proposed activity that might potentially impact  
asserted rights.  
[14] Harvesting rights were initially addressed through the use of an interim agreement, and  
then subsequently through a defined policy setting out the right of some Métis to hunt, fish and  
trap in defined areas of the Province. In 2004, Alberta entered into an interim harvesting agreement  
which was terminated in 2007 when the first Métis Harvesting Policy was introduced (the “2007  
[15] The 2007 Policy identified 17 communities the Crown would consider as both historic and  
contemporary Métis communities for the purpose of Métis harvesting rights. In order to have rights  
protected under the 2007 Policy, individual harvesters had to produce evidence that they: (i) self-  
identified as Métis; (ii) had an ancestral connection to a historic Métis community in Alberta; (iii)  
belonged to a contemporary Métis community in Alberta; and (iv) lived in Alberta. The 2007  
Policy stated that membership in the MNA was not, on its own, sufficient to meet the first  
requirement. Minor updates to the 2007 Policy were made in 2010 (collectively, the “Former  
Harvesting Policies”).  
[16] A further update to the Former Harvesting Policies occurred in 2018 following engagement  
with Métis stakeholders, including the MNA (the “2018 Harvesting Policy”). The 2018 Harvesting  
Policy does not delineate historic and contemporary harvesting areas on the basis of the 17  
communities used in the Former Harvesting Policies. Rather, the 2018 Harvesting Policy identifies  
four large harvesting areas (the “Four Harvesting Areas”). The Four Harvesting Areas are not  
mutually exclusive as there is some overlap between them.  
[17] In order to establish a right to harvest in one of the Four Harvesting Areas, applicants must  
establish that they: (i) self-identify as Métis; (ii) have an ancestral connection to one of the  
harvesting areas; and (iii) have a contemporary connection to the same harvesting area. Unlike the  
Former Harvesting Policies, applicants under the 2018 Harvesting Policy can self-identify by  
either showing membership in the MNA, membership in a Métis settlement or by executing a  
statutory declaration confirming self-identification. While it is called the 2018 Harvesting Policy,  
the policy was actually finalized in 2019, with an effective date of September 1, 2019. [1276]1  
[18] In March of 2019, the parties entered into a separate complimentary agreement which  
clarified the role of the MNA in recognizing rights-holders within the harvesting context. This  
agreement was called the “Métis Nation of Alberta – Government of Alberta Métis Harvesting  
Agreement” (the “2019 Harvesting Agreement”).  
[19] Pursuant to the 2019 Harvesting Agreement, Alberta agreed to recognize as Métis  
harvesters, all Citizens holding a membership card with a valid Métis Harvester Identification  
Sticker issued by the MNA. The 2019 Harvesting Agreement also provided that Alberta would  
seek the MNA’s advice in establishing a system to identify Métis harvesters who do not, or chose  
Numbers in square brackets refer to the source document number found in the Record.  
Page: 7  
not to, qualify as such under the Association. Importantly, the 2019 Harvesting Agreement defines  
“Métis Harvesting Area” in essentially the same terms as defined in in the 2018 Harvesting Policy.  
[20] The 2018 Harvesting Policy and the 2019 Harvesting Agreement were developed in  
accordance with a further “umbrella type” agreement ratified between the two parties in February  
of 2017 called the “Métis Nation of Alberta – Government of Alberta Framework Agreement” (the  
“2017 Framework Agreement”). [175] The 2017 Framework Agreement included an  
acknowledgment that the parties would pursue collaborative discussions concerning Métis  
harvesting rights.  
The Framework Agreement  
[21] Since 1987, Alberta and the MNA have entered into a series of ten-year framework  
agreements whereby funding would be provided to the MNA to support increased economic  
opportunities and enhanced community and individual well-being. In the spring of 2016, the  
parties began discussions toward creating a new agreement, as the governing agreement was about  
to expire. Alberta and the MNA ratified what is now the 2017 Framework Agreement on February  
1, 2017.  
[22] The 2017 Framework Agreement expressly addressed the parties’ agreement to work  
toward developing both a harvesting and a consultation policy. Further, it discussed issues  
pertaining to funding as well as progress reviews. Paragraph eight provides that the agreement is  
not legally binding, but reflects the parties’ intentions and political commitments to one another.  
[23] The tone of this agreement is conciliatory, cooperative and respectful. The preamble  
provides that the parties agree to work together, on a nation-to-nation basis, in order to enhance  
the Alberta-MNA relationship and to jointly develop collaborative policies to improve the socio-  
economic conditions of Alberta Métis. The preamble also recognizes “the MNA’s representative  
role on behalf of its Citizens” noting that it “receives its mandate to represent members of the  
MNA living within Alberta (“Citizens”) through a centralized registration system wherein Citizens  
voluntarily authorize the MNA to promote, pursue and defend aboriginal legal, constitutional and  
other rights of the Métis in Alberta and Canada”.  
Development of a Métis Consultation Policy  
[24] Since 2007, Alberta has had an internal process in place for addressing the credibility of  
assertions of Métis rights and determining whether consultation is required (the “Credible  
Assertion Process”). A duty to consult would arise where a Crown decision on land/resource  
development or management had the potential to impact a credibly asserted right.  
[25] The Credible Assertion Process was developed using the criteria set out in Powley and was  
initiated when a non-Settlement Métis organization, representing a Métis community, brought  
forward an assertion of Métis rights. As to “who” might bring forward a claim of a credibly  
asserted right, a pre-policy initiative states that consultation will involve relevant Métis  
communities and organizations”. [432] In 2008, an internal directive was developed. Under this  
process, to determine whether an assertion of rights was credible, evidence in support of the  
assertion was reviewed within the Ministry, after which the assertion and supportive materials  
were brought forward to a subsequently created cross-ministry roundtable panel for review and  
recommendation. The Credible Assertion Process evolved over time.  
Page: 8  
[26] For an asserted s 35 right to be deemed credible, and for a group to be consulted, the internal  
process required an applicant to establish that the Powley criteria had been satisfied, and also  
required the applicant to demonstrate its authorization to represent the group seeking consultation.  
Assertions were assessed on a case-by-case basis.  
[27] In 2017, Alberta approved the “Métis Credible Assertion Internal Process” document for  
internal use by IR staff in an attempt to establish clear criteria and guidelines for determining  
whether a legal duty to consult had been established (“Internal Criteria”). [1298, 1299]  
[28] Despite the existence of the Credible Assertion Process and Internal Criteria, there was a  
move towards developing a more formalized consultation policy to assist in providing clarity to  
Métis applicants, as well as industry, government and municipal stakeholders. To this end,  
engagement between Alberta and the Province’s non-Settlement Métis began in 2014. By the Fall  
of 2015, IR was officially provided with a mandate to begin coordinated engagement with the  
MNA as well as other stakeholder groups to work toward development of the MCP, subject to the  
approval of Cabinet. Given its existing relationship with the MNA, IR looked to the MNA to be a  
major contributor in developing the MCP.  
[29] Over a period of approximately five years, the MNA and Alberta worked together, although  
not exclusively with one another, in an attempt to develop the MCP. This process involved  
numerous back-and-forth communications between Alberta and the MNA.  
[30] Initially, this process unfolded in the same time frame as the development of the 2018  
Harvesting Policy and the 2019 Harvesting Agreement. However, Cabinet approval of the MCP  
was not sought within the initially-projected timeline. Rather, further engagement between IR and  
stakeholders regarding the MCP was directed. Ultimately, Cabinet approval of the MCP did not  
[31] Alberta advised the MNA through the Decision that it would not be proceeding with the  
MCP, but was instead reverting to its existing Credible Assertion Process to assess consultation  
with the Métis on a case-by-case basis. This was conveyed to the MNA in September of 2019  
when Alberta issued the Decision through a letter stating that “at this time, Alberta will not be  
moving forward with the draft consultation policy”.  
[32] Following the Decision, the Internal Criteria continued to be used. Nothing was made  
public until December of 2019 (i.e., post-Decision), when the “Métis Credible Assertion Process  
and Criteria” document was published on IR’s website. [1376] This document summarizes the  
Credible Assertion Process, sets out the Powley criteria and delineates the role of the applicant  
Métis organization in the assertion process.  
Position of the Parties relative to these Policies and Agreement  
[33] As already noted, Alberta initially took the position that the 2018 Harvesting Policy and  
the MCP were “inexorably linked” and its preferred approach was to use the Four Harvesting  
Areas as informing both consultation and harvesting development. [766] The goal was to move  
both policies forward together, or hold both back. [769 p 4-5] Ultimately, however, it was decided  
that further work was required before the MCP could be presented to Cabinet for approval, and  
Page: 9  
Alberta proceeded to nevertheless finalize the 2018 Harvesting Policy and 2019 Harvesting  
[34] The parties’ views differ regarding the significance of the 2018 Harvesting Policy and  
Alberta’s approach to harvesting.  
[35] The MNA asserts that the development of the 2018 Harvesting Policy and the 2019  
Harvesting Agreement demonstrates Alberta’s recognition of a Regional approach to the  
accommodation of Métis rights, as agreements identify the Four Harvesting Areas which  
correspond (in varying degrees) to the six Regions (leaving aside Region 3 in Southern Alberta).  
The MNA further asserts that the language used in both documents supports its claim that the  
MNA speaks as the voice of Alberta’s Métis.  
[36] With regards to consultation, the MNA takes the position that Alberta was not free to  
unilaterally abandon development of the MCP and revert to its pre-existing Credible Assertion  
Process. Rather, it asserts that the Crown was engaged in a process of negotiation aimed at  
advancing ongoing consultation issues. It claims that beginning in 2014, the parties engaged in  
significant steps towards providing a meaningful role for Métis in the consultation process. Once  
IR officially received its mandate to begin developing the MCP, it turned to the MNA as a key  
[37] The MNA points to a number of documents in the Record, in addition to the 2018  
Harvesting Policy and 2019 Harvesting Agreement, as demonstrating that the Crown initially  
encouraged the MNA to assert Métis rights though the negotiation/accommodation process based  
upon a spirit of good faith geared toward healing and reconciliation, and then abruptly terminated  
the process. The MNA asserts that this unexplained reversal of position broke the trust and spirit  
of collaboration between the parties, and put the MNA in a worse position than it would have been  
in had it adopted a different approach in pursuing a right to consultation at the outset. It states that  
the duty of the Crown to negotiate lies at the heart of national reconciliation. Finally, the MNA  
asserts that even if it becomes apparent that negotiations will not be successful, the honour of the  
Crown demands that negotiations be unwound in a respectful process. It argues this was not done  
in this instance.  
[38] Alberta disagrees with the assertion that either the 2018 Harvesting Policy or the 2019  
Harvesting Agreement require the Province to formally recognize Regional rights-bearing  
communities for all purposes. Alberta further disagrees that the same two documents require the  
Province to recognize the MNA’s authority to speak exclusively on behalf of any community.  
Alberta maintains that its harvesting regime and Credible Assertion Process sufficiently address the  
Province’s constitutional obligations in a manner consistent with s 35. That is, while Regional areas  
are used for the purpose of satisfying the Powley criteria in addressing harvesting issues,  
communities or organizations may make a claim for the right to consultation/accommodation by  
engaging in the Credible Assertion Process. While Alberta initially wanted to develop the  
harvesting and consultation policies together, with the hope of having the same geographic  
boundaries identified in each policy, this did not occur and in any event, the harvesting and  
consultation policies were at all times separate matters.  
Page: 10  
[39] Alberta further asserts that it never entered into negotiations with the MNA. Rather, in  
examining the possibility of developing an external consultation policy, it merely engaged with  
the MNA as one of various stakeholders in the Province interested in land/resource development.  
When it became apparent that the discussion process faced ongoing complexities, Alberta ceased  
engagement for the time being and chose to continue with the established Credible Assertion  
Process. In doing so, there was a suggestion that the continued development of a policy like the  
MCP may be revisited at a later date.  
[40] The Crown asserts that terminating the engagement process was a policy decision. As such,  
it is not a matter which may properly be brought before this Court for review.  
The Record: A Chronological Summary  
[41] The Record in this matter is voluminous. Both parties submitted, and I agree, that this  
matter turns on the specific circumstances of this case. As a result, it is important to understand  
the context of the communications between the parties, particularly since in some instances, the  
parties have different interpretations of the communications exchanged. A detailed review of the  
Record follows.  
[42] As already noted, in the fall of 2014, alongside the development and revision of the  
Province’s Métis harvesting policies, Alberta and the MNA began developing a consultation policy  
directing Crown consultation with non-Settlement Métis; that is, with those Métis who do not  
reside in an established Métis Settlement. At the time, Crown policy in relation to consulting with  
First Nations and Métis Settlements were already in existence, although the latter still in draft form.  
[43] An internal IR email dated October 23, 2014, speaks to the potential development of a  
consultation policy, noting:  
…we are currently meeting with MNA regarding discussions toward development  
of an off-settlement policy. Instrumental to this will be to secure a mandate to  
proceed with policy development. However, this has been a ministerial  
commitment and we are taking proactive steps to prepare. Current focus is on  
development of a [terms of reference]. [17]  
As a result of these discussions between the MNA and IR, seed funding was provided to  
the MNA to allow it to “proceed jointly” and be “an active partner” in this process. On January 1,  
2015, a grant agreement in the amount of $100,000 was executed in order to support the MNA’s  
ability to engage in this dialogue with Alberta. [24]  
[45] In May of 2015, a new government was formed by the New Democratic Party. Discussions  
between Alberta and the MNA continued. In a Briefing Note to the new Minister dated June 1,  
2015, it was again noted that the Province did not have a formal consultation policy for non-  
Settlement Métis. Alberta was consulting with Métis communities on a case-by-case basis in  
instances where a project had the potential to negatively impact the exercise of credibly-asserted  
Métis rights. A Métis community would be considered a rights-bearing community if it met the  
Powley criteria. As of June 2015, no Métis community in the Province had successfully made a  
credible assertion of an Aboriginal right for the purpose of consultation. [27] The Briefing Note  
further indicated that the Province was “engaged in a collaborative dialogue” with the MNA  
Page: 11  
regarding the MCP, describing the dialogue as “preliminary in nature…intended to help identify a  
process for future development of a non-Settlement MCP”.  
[46] The MNA and Alberta entered into discussions regarding mutually acceptable terms of  
reference for the development of the MCP. The parties collaborated in drafting terms of reference  
that were ultimately endorsed by the MNA’s Provincial Council in July of 2015. The terms of  
reference provided, in part, as follows:  
To develop the main elements of a potential province-wide consultation policy for  
non-Settlement Métis communities)MNA [sic in original]  
The intentions of the MNA and Alberta in these discussions are to identify the  
issues and main elements of a potential Alberta-MNA Métis Consultation Policy  
that will:  
Meet the respective obligations of the parties with respect to consultation;  
Increase certainty for Alberta, the MNA and industry proponents;  
Be practical and workable for both parties and stakeholders;  
Be acceptable to both Alberta and the MNA, with the understanding that the  
proposed Policy will be Alberta’s Policy. [34]  
[47] Alberta noted in an email of August 7, 2015, that:  
[The MNA] view is that the MNA is the rightful party to undertake discussions as  
in the by-laws the individual members are in the MNA though the locals have a  
separate corporate existence. They hope that if a [terms of reference] is signed this  
will lever the locals who are litigating (125 and 1935) to hold their actions in  
abeyance pending actions by this process. [46]  
[48] The terms of reference were never finalized.  
[49] Subsequently, the Province outlined three possible go-forward options in relation to the  
issue of non-Settlement Métis consultation. [37] The first option was to continue with the existing  
approach of considering Métis communities’ assertions of rights on a case-by-case basis with  
consultation occurring only if the assertion was deemed credible.  
[50] The second, and recommended, option was to recognize the 17 non-settlement Métis  
communities listed under the Former Harvesting Policies as proper parties to consult, and to  
establish a process aimed at meeting the duty to consult. This option highlighted that:  
A clear and defined off-Settlement Métis policy would provide much needed  
direction around when and where proponents should be consulting with said  
communities. The development of such a policy would reduce legal and  
regulatory uncertainty, as well as continued pressure from off-settlement Métis  
Page: 12  
[51] The third and final option was to recognize the 17 non-settlement communities listed in the  
Former Harvesting Policies as all holding credibly asserted Aboriginal rights and engage in  
consultation with all.  
[52] In October of 2015, the Social Policy Committee recommended to Cabinet that it authorize  
the Minister of Aboriginal Relations (now known as the Minister of IR) to “begin coordinated  
engagement with the [MNA], Métis locals and other non-Settlement Métis communities to develop  
a Non-Settlement Métis Consultation Policy”. During its October 27, 2015 meeting, Cabinet  
accepted these recommendations, thus providing IR with its required mandate (the “Mandate”).  
[53] In its related Cabinet Report dated October 20, 2015, the Ministry noted that a collaborative  
and interest-based approach involving non-Settlement Métis would “build a relationship of trust  
and ensure respectful consultation” as well as ensure that the appropriate communities would be  
able to provide input into the MCP. [50-2] The Report stated that both non-Settlement Métis  
communities and industry indicated support for developing such a policy. The Report noted at  
page 11:  
Issue: the [MNA] will not be acting on behalf of all non-Settlement Métis groups.  
Response: [Alberta] will engage with non [MNA] members as appropriate.  
[54] The Ministry wished to obtain “Cabinet approval to move to substantive discussions with  
the [MNA], Métis locals and other non-Settlement Métis communities to proceed with the  
development of the [MCP] and to return to Cabinet for approval of the Policy”. With respect to  
the Credible Assertion Process, the Report described this approach as “cumbersome and lead[ing]  
to uncertainty for government, Métis communities and proponents”, which in turn may lead to  
increased litigation. The anticipated timeframe for implementation of the MCP was between 2017  
and 2018.  
[55] In a Briefing Note dated December 4, 2015, the Ministry discussed options for proceeding  
with the development of the MCP. [67] Specifically, it examined whether the MCP ought to be  
developed using the Powley approach, or by using a different policy-based approach. The  
recommendation was to present the proposed options to the MNA and to formally request their  
input on how they would prefer to proceed. In discussing each approach, the Ministry stated that:  
The [MNA] is a stable partner that understands the issues related to non-  
Settlement consultation. [Alberta] had preliminary discussions with the [MNA]  
about the possible development of a [MCP] and it fully supports it.  
[56] In early 2016, the parties discussed the possibility of creating a MCP project Charter  
(“Charter”). In January of 2016, senior officials from both IR and Justice and Solicitor General  
met with the MNA. In a power-point presentation, Alberta again described the MNA as a “stable  
partner” who understood the issues relating to the MCP. [87] The presentation noted that during  
an earlier January 2016 meeting, Alberta “agreed to work with the MNA to develop a non-  
Settlement Métis consultation policy on the basis that support will be garnered from the Métis  
Page: 13  
Locals” and further, Alberta recognized that once developed, the MCP would still need to be  
reviewed and approved by Cabinet.  
In June of 2016, IR provided the MNA with a draft “joint” MCP Charter which included  
a direction for Alberta to engage with the MNA, Métis Locals and other non-Settlement Métis to  
develop a MCP consistent with the consultation policy implemented for on-Settlement Métis. The  
“guiding principles” of the draft MCP Charter provided, in part, that:  
Clear, sustained and demonstrated support must be garnered by the [MNA] from  
non-Settlement Métis Locals for its role in this process. Alberta may engage  
Locals and other non-Settlement Métis communities directly to solicit their input  
as appropriate, such as instances where a Métis community may not want their  
interests to be represented by the [MNA].  
During the policy development process, [Alberta] and the [MNA] will undertake  
to conduct themselves in a manner that:  
demonstrates good faith, honesty and openness in  
confronting issues on a without-prejudice basis;  
shows mutual respect and maintains a positive climate for  
discussion; and  
shows transparency, including the sharing of information  
where required and permitted. [115]  
[58] The Record does not include a finalized MCP Charter.  
[59] The MNA provided Alberta with historical research pertaining to certain rights-bearing  
communities (i.e., at this time, Athabasca). This information was provided in the form of a report  
authored for the MNA and included a methodology and database for identifying and understanding  
the historic Métis population of north-eastern Alberta. The methodology was based upon the  
framework discussed in Powley and R v Hirsekorn, 2013 ABCA 242, leave to appeal to SCC  
refused, 2014 CanLII 2421 (“Hirsekorn”), and was consistent with the MNA Bylaws. At this  
juncture, the MNA recommended a two-step process which, in its perspective, would result in a  
credible assertion of Métis rights and would establish that the MNA represented those Métis rights-  
holders and communities requiring consultation. Specifically, the process involved recognition of  
historic Métis communities coupled with verification that the MNA Citizens could show a  
connection to these historic communities. [182]  
[60] In September of 2016, the then Premier was briefed on the status of the MCP. It was noted  
that in the spring of 2016, the Province and the MNA had begun negotiations to develop both a  
new framework agreement and the MCP. Further, development of the MCP would:  
…help ensure that Alberta’s non-Settlement Métis communities have ongoing  
opportunities to participate in decision-making related to land and natural  
resource management that may affect their harvesting or traditional use activities.  
[61] With respect to process, the note explained that the scope and parameters of the MCP would  
be determined in consultation with the MNA and other non-Settlement communities, if required.  
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Because not all Métis people were members of the MNA, it was possible that the MNA would not  
be the sole voice for the Métis Nation. [146]  
[62] As discussions between the Province, the MNA and various Métis Locals ensued, it became  
clear that some Locals did not wish to be represented by the MNA. For example, Local 55 advised  
that it did not support certain special resolutions passed in order to amend the MNA Bylaws and  
Oath. Litigation concerning the breadth of the MNA Bylaws and Oath commenced in 2016: see  
for example, McCargar v Métis Nation of Alberta Association, 2018 ABQB 553, aff’d 2019  
ABCA 172, leave to appeal to SCC submitted September 30, 2019 (“McCargar”).  
Correspondence on the Record indicates that Fort McKay Métis similarly endorsed a greater role  
for Locals. [78]  
[63] From September of 2016 until the end of that year, the Province met with several Locals  
regarding the development of the MCP. [165] The MNA also held a number of consultation  
workshops and meetings with the Regions and Locals. [99]  
[64] In a January 2017 Discussion Paper entitled “Non-Settlement Métis Consultation Policy  
on Land and Natural Resource Management”, Alberta proposed four options as parameters for  
developing the MCP. [171] The Paper acknowledged that no Métis community in Alberta had  
demonstrated a credibly asserted site-specific right, and recognized that basing the MCP on the 17  
communities listed in the Former Harvesting Policies may not accurately reflect the Métis of  
certain areas; Alberta Métis are better recognized as Regionally based. In discussing Métis  
representation, the Paper noted that:  
the determination of which communities to consult is only one step in determining  
who to consult: Alberta also needs to know who is authorized to speak on behalf  
of these communities. The issue of authorized representation presents a challenge  
to the development and implementation of the Policy. [Unlike First Nations and  
Settlement Métis communities…] for non-Settlement Métis communities in  
Alberta, the issue of representation is not factually clear at this time.  
To the extent that the issue of authorized representation presents a challenge to  
the development of a [MCP], Alberta may be interested in facilitating solutions to  
this issue, and may ultimately need to make its own decision in some instances.  
[65] The Paper reviewed Fort Chipewyan Métis Nation of Alberta, Local #125 v Alberta, 2016  
ABQB 713 (“Fort Chipewyan”) and stated that “while a corporate entity can be the vehicle for  
enforcement of the Crown’s duty to consult, that entity can only do so if it can establish that it has  
the authority of the community it purports to represent”.  
[66] A draft policy proposal dated March 8, 2017, (“March 2017 Proposal”) promoted the use  
of a Regional community perspective because of an absence of Métis communities able to satisfy  
both the historic and the contemporary criteria (as per Powley). [186] A lack of legal and financial  
support from government had “left a gap in the Crown’s ability to implement its consultation  
obligations at a community level”. However, Alberta would consider both historic and  
contemporary Métis communities, as defined under the Former Harvesting Policies, as a starting  
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point for identifying which Métis communities may be considered in adopting a Regional approach  
for consultation.  
[67] The March 2017 Proposal outlined the roles of all parties involved. Alberta’s role was  
defined as being “responsible for developing and leading an engagement process that ensures  
communication and engagement with Métis” and being “an active and committed partner with the  
MNA, as well as being responsive to communities who wish to represent themselves”. For its part,  
the MNA’s duties included assisting in developing criteria to identify appropriate Regional  
communities. The MNA was further responsible for “demonstrating to Alberta that they are  
authorized to represent their membership for the purpose of the engagement and policy  
development process”. The March 2017 Proposal also noted:  
Finally, while the MNA purports to represent and speak on behalf of all Métis in  
the province, some Métis Locals in Alberta have indicated that the MNA does not  
represent them; it will be important to engage with the MNA as well as with the  
Métis Local communities…  
[68] Draft “Engagement Options” were also considered during March of 2017, outlining what  
information was required for Alberta to recognize a non-Settlement Métis organization for the  
purpose of consultation. [189] Accordingly, Alberta would consult when: (i) a credible assertion  
of rights had been put forward by a community; and (ii) where there existed an organization  
authorized to represent that community for the purpose of consultation. The scale of consultation  
(Regional versus Local) as well as the level of engagement with the MNA, Métis Locals and others  
in the Métis community was also discussed. IR suggested creating a cross-ministry working group  
for the purpose of engaging with other stakeholders (including industry and municipalities). This  
cross-ministry working group was called the Indigenous Advisory Committee and its first meeting  
was held in September 2017.  
[69] In April of 2017, IR shared a draft Cabinet Report outlining the proposed development of  
the MCP for the purpose of seeking input and feedback from its cross-ministry partners.  
A May 11, 2017 Briefing Note to Cabinet noted that, as of that date, no non-Settlement  
Métis organizations had provided Alberta with sufficient information to meet the Powley criteria.  
The Note reiterated that the existing approach required communities wishing to be consulted to  
bring forward a credibly-asserted Aboriginal right, which would be reviewed on a case-by-case  
basis. In an effort to address this issue, IR recommended a more flexible/variable approach to the  
level of information required. Specifically, the Note suggested that Cabinet approve an approach  
requiring a “moderate” level of information from non-Settlement Métis communities on the  
Powley criteria to trigger consultation. [257]  
[71] The associated draft Cabinet Report (updated April 26, 2017) again discussed the  
frustration of the non-Settlement Métis in respect of the current approach to consultation (Powley  
criteria), and the accompanying negative impact on the relationship between the Métis and the  
Crown. The Report noted that the absence of a formal policy created uncertainty for industry  
stakeholders and that the initial input suggested such stakeholders supported the development of  
the MCP. The MNA were described as Alberta’s “greatest collaborator in developing and  
implementing the MCP” and the Report further stated that “by building upon the collaborative  
relationship, the MNA will benefit by being recognized as the central Métis organization for  
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consultation and historical information in Alberta”. The draft Report recognized that the MNA did  
not speak for all Métis but opined that the development of the MCP would demonstrate Alberta’s  
commitment to respectful and open dialogue with Métis and may ultimately reduce political and  
legal pressures. Ultimately, the draft Report was never sent to Cabinet. [262]  
[72] Further discussions about the proposed approach for developing the MCP ensued,  
including putting together a draft “Term Sheet” proposing a potential path forward. The proposed  
approach for developing the MCP and recommended next steps concerning engagement were  
approved by the IR Minister in July of 2017. [280]  
[73] In preparation for the various cross-ministry meetings, IR prepared the “Non-Settlement  
Métis Consultation Policy Development” Paper (undated). [214] The Paper referenced both the  
Mandate and the 2017 Framework Agreement. It indicated that IR contemplated approval from  
Cabinet regarding the proposed Regional approach. One of the phases discussed under “the path  
forward”, contemplated engagement with the MNA, Locals and non-Settlement Métis that did not  
authorize the MNA to speak on their behalf, other non-Settlement Métis communities and  
organizations, natural resource development proponents, municipalities and Alberta’s regulating  
agencies. Ultimately, a draft “Engagement Strategy” was prepared on September 8, 2017. [446]  
[74] The Province and the MNA met in September of 2017 to discuss ongoing engagement  
activities and initiate the development of the MCP. Both parties agreed that the process would be  
collaborative and would involve a Regional approach. Notes made by Alberta following this  
meeting indicate that “the MNA [did] not want Alberta to go and speak to any ‘independent’ Métis  
groups about consultation”; this request was rejected in order to provide for more fulsome  
community/Regional input. [318]  
[75] The Term Sheet was updated in November of 2017 and provided that the parties would  
collaborate to create a process to identify Regional Métis communities in the Province. The MNA  
would work with its Citizens to demonstrate it had the requisite authority to act on behalf of the  
Métis in Alberta for the purpose of consultation. Alberta would directly engage those communities  
that did not authorize the MNA to act on their behalf. The Term Sheet also provided for the  
establishment of Alberta-MNA committees and projected full engagement at the technical level  
with the MNA, other Métis communities, natural resource proponents, municipalities and Alberta  
ministries and agencies from the spring of 2017 until December of that year. [391]  
[76] A Ministerial meeting with the MNA and the Athabasca River Métis (including four  
Locals) was planned. [336 and 337] A Briefing Note dated November 20, 2017, was prepared for  
the Assistant Deputy Minister in anticipation of this upcoming meeting between IR and the MNA’s  
legal representatives and senior officials. In this Note, IR outlined the information already shared  
by the MNA, including historic information on the Athabasca Region, a report on Métis history  
and proposed methodology to verify that the MNA represented rights-bearing Métis communities.  
The Briefing Note stated that the Minister recognized there must be an opportunity for Métis who  
do not authorize the MNA to speak on their behalf to work directly with Alberta during policy  
development. It identified 10 Locals which IR intended to engage with directly. The Note  
suggested establishing two working groups between the MNA and IR, noting that collaboration  
“requires a working relationship that is based on mutual respect and trust” and that Alberta has “an  
obligation to conduct its business in an open and transparent manner”. It also stated that:  
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IR will be engaging Métis organizations that may not authorize the MNA to speak  
on their behalf. The MCP will be a Government of Alberta Policy, not an MNA-  
GOA policy. Engagement during the policy development is not negotiation. [418]  
[77] The IR Minister hosted what the parties referred to as the “kick-off” meeting, wherein  
formal engagement about the actual development of the MCP was initiated.  
[78] During this time frame, the MNA was conducting meetings to develop a consultation  
protocol agreement with the MNA Regions (the “Regional Protocol Agreements”). A draft version  
of this agreement was included in the Record. It provided that members of the Region had  
authorized the MNA to assert and advance their collectively-held Métis rights. [254] It also  
outlined a delegation process, the establishment of a consultation committee and the role of  
Regional consultation offices.  
[79] Not all of the MNA members were supportive of the proposed Regional Protocol  
Agreements. For example, in an April 18, 2017 letter drafted by the Gunn Métis Local 55, the  
Mountain Métis and the Cadotte Lake Métis to the MNA Regional Council (and copied to Alberta),  
the authors wrote:  
While there are fundamental and egregious legal, historical, political and other  
deficiencies and other inconsistencies throughout the document, we see no reason  
to take anyone’s time to detail those given the fact that a fundamental error  
permeates throughout. That error is in attributing a position of authority with  
respect to consultation in Non Rights-Bearing bodies. The Rights-Bearing bodies  
are those individuals and communities that are directly and adversely affected by  
the lack of consultations of Governments and Industry proponents, not the MNA  
or Regional Councils.  
Until such time as the Métis Nation of Alberta understands this fundamental flaw  
contained within this document, there is no benefit, for anyone concerned, to  
provide [sic] salient and comprehensive review of such documents where virtually  
no capacity has been given to the Communities to provide that input.… [253]  
[80] The President of the MNA responded to the above by advocating for an approach that  
focused on Métis rights being held collectively, as opposed to by specific local individuals or  
groups. She stated that she strongly believed that the vast majority of MNA members would agree  
with the Supreme Court of British Columbia which concluded that the proper rights holder is the  
community as per Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700 (“Tsilhqot’in  
Nation”). The response asserted that the MNA was properly authorized to represent its Citizens’  
collectively-held Métis rights. [256]  
[81] By mid-November 2017, Alberta appeared to be putting forward two options regarding the  
MCP engagement and development plans, as well as sorting out how the MNA and other  
organizations could participate. The options were:  
1) that the MNA work with its Regions and Locals to determine which  
organizations sought to have the MNA represent them for the purpose of  
consultation. Such communities may be regional or settlement-specific in nature;  
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2) those Métis organizations that wished to advance their own credible assertion  
claim may do so by satisfying certain criteria as listed. [389]  
[82] On January 5, 2018, Alberta developed an “Engagement Process Outline” geared toward  
progressing the development of the MCP. [433] It outlined the engagement rationale and outcomes  
respecting a variety of Métis partners, including the MNA, but also others such as the Athabasca  
River Métis (the “ARM”). Consultation was to be held “in good faith with reconciliation  
maintained as a fundamental goal of [the] discussions”. Engagement would be guided by “open  
and transparent communication, early and frequent consultation, and respectful and inclusive  
[83] In response to being advised that IR was meeting with a number of Locals from Region 1,  
MNA President Poitras wrote to the Minister in December expressing her concern. She took the  
view that the meeting should be rescheduled to a date on which she could attend, as any discussion  
about how consultation may be conducted must include a representative of the MNA’s Provincial  
Council. [414]  
[84] The IR Minister responded in January 2018 indicating that an open and collaborative  
approach required hearing “as many perspectives as possible to inform development of the Policy”  
and that he was desirous of hearing from Métis organizations “from grass roots up to the provincial  
scale”. In order to respect the self-determination of the Métis people, he wanted to give all Métis  
organizations the opportunity to have their voice heard regarding the MCP. [434]  
[85] At around the same time, IR prepared a Briefing Note for its cross-ministry partners setting  
out key messages relating to the MCP and its development to date. It summarized its meetings  
with the MNA, the ARM, other Métis organizations, industry and municipalities. [410] IR also  
solicited cross-ministry responses on a 2018 draft Cabinet Report. As noted in a February 2018  
email, Alberta still envisioned having both the MCP and the 2018 Harvesting Policy go before  
Cabinet at the same time, although this did not actually happen. [503]  
[86] IR provided an update in a March 6, 2018 Briefing Note for Deputy Ministers. The Note  
outlined three development phases for the MCP. Phase one was to hear perspectives related to  
what was required to establish the existence of potential historic and contemporary Métis  
communities in the Province. Phase two was to work with Métis organizations collaboratively to  
identify potential options for the MCP - such as the level of information required to support each  
of the Powley criteria and how an organization might demonstrate it had the authority to represent  
Métis people. Phase three was to seek final input from Métis organizations on potential policy  
options following an internal review of the proposed options.  
[87] The information submitted by Métis organizations was to be reviewed, and a gap analysis  
based upon the Credible Assertion Process completed. The gap analysis would assist in informing  
potential options, including the viability of the existing Internal Criteria as a potential standard.  
The Briefing Note stated that no decision to determine whether a Métis organization has provided  
adequate information for consultation purposes would be made until Cabinet has approved the  
standards. [530]  
[88] The Briefing Note also proposed that two Cabinet Reports go forward in 2018 in relation  
to consultation. The Note stated that by submitting two Cabinet Reports, the issue of “whoto  
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consult could be separated from the procedural aspects of the MCP. The first Cabinet Report was  
to provide options on standards/criteria that a Métis organization must satisfy in order to be  
consulted under the MCP. In this respect, the Briefing Note stressed the importance of aligning  
the first Report with the review of the proposed 2018 Harvesting Policy, “as the determination of  
the potential regional Métis communities [would] need to be the same for both policies”. The  
second Cabinet Report was to outline the actual procedural aspects of consultation pursuant to the  
[89] Throughout the process, Métis groups, including the MNA, continued to provide Alberta  
with information supporting the existence of potential historic and contemporary Regional Métis  
communities. The MNA provided a series of presentations to the Province. It worked to finalize  
Regional Protocol Agreements with all six Regions and continued to advocate for an MNA-based  
Regional approach with respect to where and how requests for consultation would be received and  
[90] Alberta did not fully support the MNA’s approach. [474] As well, a number of Locals were  
not prepared to endorse the Regional Protocol Agreements. While the Regional Protocol  
Agreements were largely executed in Regions 2, 5, and 6 (except for Cadotte Lake), in Region 4  
the Garneau, Edmonton, Grande Cache and Gunn Locals did not sign. [628] Further, as a result of  
the Hirsekorn decision, Alberta maintained that the MCP would not apply in Region 3. In that  
case, our Court of Appeal confirmed that southern Alberta (the Cypress Hills area) was not part of  
traditional Métis hunting territory; sufficient presence in that area leading up to the time of  
effective control could not be established. Notwithstanding this, the parties agreed to discuss the  
Métis in Region 3 at a later time. [801]  
[91] The parties did not agree about the extent of the MNA’s authority to speak as the voice of  
the Métis. Of note, IR’s assessment in the Spring of 2018 compared the perspectives held by the  
MNA with those held by the Province, in examining each party’s interpretation of relevant case  
law dealing with potential standards to be used. IR identified what it considered to be a number of  
inconsistencies in the MNA’s approach to Powley in regards to the Regional Protocol Agreements.  
[92] In February of 2018, the President of Region 1 indicated that she did not support the  
Regional Protocol Agreement and that she was rescinding the authority of the MNA to represent  
the Region for consultation, land or self-government claims. In January of 2019, however, Alberta  
was advised that the Regional Protocol Agreement in Region 1 had been executed. IR staff did not  
receive a copy and could not confirm execution. [225] Subsequent correspondence from a Region  
1 Local (Willow Lake) suggested that nine of the 12 Locals in the Region had signed.  
[93] Notably, the ARM and Alberta were separately discussing the MCP and representation for  
consultation purposes in the Athabasca Region. A meeting was held between IR and the ARM  
(roughly Region 1) on February 23, 2018. Representatives from the McMurray Métis, Fort  
Chipewyan Local 215, Fort McKay Métis, Willow Lake Métis and Conklin Métis also attended.  
Determining “who” the MCP would apply to was discussed. The meeting summary indicated that  
Métis communities had varying degrees of ability to provide information to IR. The ARM were in  
the process of developing their membership registries, but were constrained by a lack of resources,  
lack of clarity from Alberta on the standards triggering consultation, as well as by “the MNA’s  
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unwillingness to share their registry information”. The ARM expressed support for a more Local,  
as opposed to Regional approach. [508] Discussions between IR and the ARM ended in October  
of 2018 when IR suggested that ongoing concerns would have to be addressed directly between  
the MNA and Region 1 Citizens.  
[94] A Briefing Note dated April 6, 2018, sought direction from the Minister about options for  
determining who to consult under the MCP. The Briefing Note recommended that the Minister  
adopt a variable approach, although it stated that further options would be outlined in a subsequent  
report to Cabinet. Under the variable approach, there would be two methods for Métis communities  
to make a credible assertion of rights for the purpose of consultation. The two options were:  
1. For the MNA Regional communities: Alberta would consult on the basis of a  
credible assertion; and  
2. For communities who wished to be independent of the MNA: in areas where  
the issue of authorization and representation was in dispute, the organization(s)  
would need to reach a credible assertion and demonstrate authority to represent  
the community to be consulted. [624]  
[95] On April 13, 2018, the President of the MNA wrote to the IR Minister outlining her  
previously-stated position on the MCP negotiations. [649 and 651] She reiterated that consultation  
between Alberta and the Métis people of Alberta should be premised on the recognition of  
Regional, rights-bearing Métis communities, which together comprise the MNA. She submitted  
that such communities could only be represented, for the purpose of consultation, by the MNA,  
with the Provincial Council and relevant Regional and Local Councils working cooperatively. She  
opined that there could only be one provincial policy for dealing with non-Settlement Métis, and  
that it must be developed in collaboration with the MNA. President Poitras expressed the view that  
Alberta’s ongoing engagement with individual Locals or other community associations was  
problematic, given that such entities did not represent distinct rights-bearing communities nor did  
they have proven authority to represent Métis people. Only the MNA had a transparent governance  
structure, with Bylaws authorizing representation and a verifiable member registry. Any attempts  
to engage with others for the purpose of Crown consultation in Alberta would be challenged by  
the MNA.  
[96] Subsequently, on April 23, 2018, the MNA provided Alberta with a Paper entitled  
“Understanding the Métis Nation of Alberta’s Role and Authorization in Relation to Dealing with  
Section 35 Métis Rights and Crown Consultation in Alberta”. The Paper provided a high-level  
overview of the history of the Métis people in Alberta and their approach to governance. It also  
discussed why the MNA was authorized by its Citizens to assert collectively-held rights and to  
consult with the Crown. [657]  
[97] In June of 2018, the MNA provided the Province with a draft proposed consultation policy  
(to be presented to Cabinet), based upon the MNA’s understanding of meetings it had had with  
Alberta (the “June 2018 MNA Proposal”). It stated that in order to be recognized under the MCP,  
an entity would have to satisfy the Powley criteria based on a flexible/variable approach. The MNA  
proposed four requirements purported to align with Powley and other cases dealing with Métis  
rights, but that would not require a strict application of the legal test. The four requirements were:  
(1) establishing a historic Métis community; (2) establishing a contemporary Métis community;  
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(3) establishing that members of the contemporary Métis community exercise traditional practices  
on the land; and (4) establishing that the applicant organization was authorized to represent the  
members of the contemporary Métis community (who are the descendants of the historic Métis  
community). The MNA referred to this test as “Powley-lite”.  
[98] The June 2018 MNA Proposal stated that Alberta would:  
recognize Regions 2, 4, 5 and 6 as historic and contemporary Métis  
communities for the purpose of the policy, and work with the MNA over  
the summer to further operationalize the policy in those MNA Regions in  
keeping with the MNA’s internal processes;  
continue to work together…to identify an appropriate and mutually  
agreeable approach to consultations in Region 1, based on the policy;  
Provide the MNA with an opportunity to review evidence and make  
representations should another organization assert that it satisfied the  
requirements set out above, based on the MNA’s assertion of representation  
throughout all of Alberta […]. [750]  
In response to the above, the IR Assistant Deputy Minister wrote to the MNA stating that  
there appeared to be “a misunderstanding with respect to a number of matters in the memo”. [751]  
Subsequent discussions ensued whereby Alberta clarified that the proposed standards would apply  
to all Métis organizations that sought consultation under the MCP and that Alberta would look to  
collaboratively identify a mechanism for consultation with the Métis. [761]  
[100] Together, in a draft dated June 22, 2018, the parties outlined a proposed collaborative  
approach to be provided to Cabinet with a view of securing a mandate to further advance the MCP,  
consistent with the commitment in the 2017 Framework Agreement (the “Outline”). [763] The  
Outline acknowledged that while the decision to proceed with the MCP ultimately rested with the  
Provincial Cabinet, support from the MNA was an important factor in determining whether the  
MCP would be advanced. The MNA’s proposed “Powley-lite” standard was recommended as  
applying to all Métis organizations seeking to be consulted under the MCP. The proposed  
standards included establishing: a historic Métis community; a contemporary Métis community;  
the scope of activities practiced on the land; and representation/authorization of Métis community  
members (the “Standards”). [764-2 and 3] The approach was Regional, as opposed to settlement-  
based. If adopted, the Standards would replace the Credible Assertion Process and Internal  
[101] In correspondence dated June 25, 2018, IR prepared a list of responses to possible questions  
that could be asked during the Economic Development and Policy Coordination Committee of  
Executive Council meeting. One of the anticipated questions was: what were the risks if the  
proposals brought forward did not proceed? In response, IR stated that approval of the Standards  
was necessary to assist it in identifying Métis communities who may meet the Standards and,  
therefore, be considered for consultation under the MCP. Moreover, Alberta wrote, in reference to  
the existing Credible Assertion Process, that:  
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the existing process does not work [underlining in original] no Métis  
community has been able to meet the current test. This has increased frustration  
from Métis who seek to be consulted, but also from industry proponents as they  
are unsure of who to engage with. […] Not proceeding at this time will not make  
life better for Métis in the province, and will continue to create challenges for  
Métis and industry potentially this may increase the legal risk to Alberta. [769]  
[102] The correspondence noted the interconnection between the revised 2018 Harvesting Policy  
and the MCP; both policies referred to the geographic areas where Métis may harvest and may be  
consulted. Of note, the correspondence stated “just entering an agreement specifically with the  
MNA” as an alternative approach would be contrary to the Mandate provided by Cabinet in 2015.  
[103] In the June 22, 2018 “Cabinet Report: Executive Summary” on the MCP, IR sought  
approval of the proposed Standards for Métis consultation, as well as approval for continuing  
engagement with the Métis in order to inform the mechanism for consultation (whom to consult,  
how to consult and where). The Report described which Métis groups IR had been working with,  
which Regions were anticipated to satisfy the Standards and which Métis groups would likely play  
a role in further collaboration to finalize the mechanisms for consultation under the MCP. It noted  
that “during past engagement sessions it has become clear that there is an ongoing concern as to  
who represents who for the purposes of consultation”.  
[104] The Report noted that the Ministry was prepared to accept four Regional historic Métis  
communities within the Province, which approximated the Regional governance boundaries of the  
MNA. The goal was to return to Cabinet in the fall of 2018 for Cabinet approval of the finalized  
MCP. [764]  
[105] Following further in-person discussions between the MNA and IR, and in anticipation of  
Cabinet’s decision, President Poitras provided a conditional letter of support for the MCP process  
dated July 4, 2018. It set out the MNA’s views of the proposal and the circumstances in which it  
would be possible for the MNA to support it. [785] President Poitras reiterated her support of a  
Regional approach and the expressed desire of both parties to work together collaboratively. She  
indicated that the Regional Protocol Agreements represented the most efficient way to ensure that  
consultation with the Province’s rights-bearing Métis communities took place only with properly  
authorized representatives. The MNA’s governance structure and the Oath were commented on in  
the letter, as demonstrating that the requisite authority had been established by the Association.  
[106] In reference to the Standards, President Poitras proposed a specific approach to be followed  
where more than one organization claimed to represent the same Métis community. She  
commented that:  
consultation area claims by contemporary Métis communities could not  
overlap. Any area claimed by contemporary Métis communities must be the  
same area the community relied upon for establishing ancestral connection;  
given the MNA’s governance, no current member of the MNA could  
authorize another organization to represent them when conducting  
consultations, without first cancelling their MNA membership;  
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in the event of a competing claim, Alberta must provide the MNA with an  
opportunity to review and respond to the evidence that organization is  
relying on to make its clam;  
continuing engagement regarding Métis rights and consultation must be  
limited to only those organizations that have demonstrated they are  
authorized to represent historic and contemporary communities. Including  
others would “bog down and confuse the process”;  
there would be advantages to ensuring that the Province’s consultation  
policy with the Métis complimented the near-finalized consultation  
agreement between the MNA and Canada. To this end, use of the Regional  
Protocol Agreements was again stressed as the preferred approach; and  
adopting the 2018 Harvesting Policy would assist in finalizing the MCP  
process, as it would identify Regional rights-bearing Métis communities in  
Alberta which would align with the MNA’s current Regional boundaries.  
[107] The then Premier replied to President Poitras’ letter, noting that while progress had been  
made, “more work remains to be done to reach our goal of a [MCP]”. The Premier also wrote that  
“engagement with the [MNA] has been worthwhile and productive, and I look forward to our  
continued dialogue as we move forward in this endeavor”. She further stated that she appreciated  
the MNA’s contributions to developing the MCP and that the relationship between Alberta and the  
MNA was important. In encouraging further collaboration between IR and the MNA, she stated:  
I understand that there are some topics where the views of the MNA and the  
Government of Alberta may differ, and that you raised some of these concerns in  
your July 4, 2018 letter. Alberta seeks to develop a Policy that is fair and  
defensible […] [847]  
[108] In July of 2018, Cabinet approved the Standards “in principle” and requested further  
engagement on both the Standards and the proposed mechanism for consultation. Cabinet directed  
that IR return in the fall of 2018 for final approval of the Standards and the MCP. [791]  
[109] IR created a “MCP Summer-Fall 2018 Strategic Plan” to address what needed to be  
completed prior to seeking Cabinet approval in the fall or winter of 2018 (the “Strategic Plan”).  
[807] The Strategic Plan’s priority objective was to define the “mechanism” of how consultation  
would occur under the MCP (on a Regional level); specifically, with whom to consult and where.  
In order to inform Cabinet, IR anticipated having to analyze the expected number of communities  
that might meet the Standards and qualify for consultation, potential impact on industry and  
potential stakeholders, potential impact on government ministries, capacity funding implications,  
and political and legal implications.  
[110] Of note, the Strategic Plan stated that the MNA was “the primary stakeholder to be engaged  
during summer and fall on the development of the MCP”. Biweekly meetings were anticipated to  
begin in the fall, and Métis organizations who were not part of the MNA, or who insisted on  
engaging separately from the MNA, were to be included. The Strategic Plan noted that the issue  
of authority to represent Métis communities was before the courts and that the MCP could be  
influenced by the outcome. Two of the “key considerations” under the Strategic Plan included:  
Page: 24  
That disputes regarding Métis representation and governance may impede  
progress on approving Métis organizations to be consulted. Conflict on this  
issue has been ongoing for some time and may not be resolved in a timeline  
suitable for Cabinet timelines. IR can still create a MCP and approve it;  
however, the approvals of Métis communities that may be consulted under  
the MCP may be slower than expected or hoped for; and  
Alberta/[IR] has procedural fairness obligations in reviewing and  
considering information as part of the Credible Assertion Process. Within  
this obligation rests issues of timeliness, consistency, and fairness in making  
decisions. […]”  
[111] Alberta further engaged with industry and municipal stakeholders regarding the Standards  
and the potential MCP throughout the 2018 summer/fall timeframe. The MNA sent Alberta a  
proposed draft “Regional Consultation Protocol”, outlining a process wherein the level of  
consultation required would determine the subsequent steps taken under the Protocol (last updated  
September 11, 2018). [852] The draft Protocol envisioned a strong role for a Regional  
“Consultation Coordinator” who would deal with notices regarding possible consultation  
requirements. The Coordinator would proceed under the direction of a Regional “Consultation  
[112] On October 24, 2018, the MNA provided IR with a draft MCP based on the existing  
consultation policy for on-Settlement Métis and using language from the 2017 Framework  
Agreement (the “October 2018 MNA Proposal”). [949] The draft provided that Alberta would  
consult with the MNA through its already-established consultation committees when certain  
factors existed.  
[113] IR prepared and shared its own draft MCP as well as an accompanying draft “Proposed  
MCP Key Considerations” Paper with the MNA. [990] The Paper acknowledged that Alberta was  
committed to developing an MCP that brought clarity and consistency to the consultation process  
in a manner consistent with the honour of the Crown. It stated that the draft MCP would not define  
which Métis organizations (i.e., the “who”) would be consulted under the MCP, because the  
decision of whom to consult was contingent on Cabinet formally approving the Standards. It  
acknowledged that the MNA was supporting a Regional approach.  
[114] Both draft MCPs used language fairly consistent with that used in the on-Settlement policy.  
The factors triggering consultation were the same in both the MNA and IR versions of the draft  
MCP. However, the IR-prepared draft stipulated that it would be Alberta who made the decision  
about who to consult, with the MCP applying to those Métis organizations that successfully met  
the Standards. It contemplated that Alberta would consult with the specified Métis organization  
through its already established Aboriginal Consultation Office when various factors existed. IR’s  
draft MCP used the neutral language of “Métis Organizations” as opposed to specifically  
referencing the MNA.  
[115] A “Discussion Guide” related to the proposed MCP was distributed by IR. It requested  
input from project proponents, including industry, to be provided by November 9, 2018. [903]  
Page: 25  
[116] In late November of 2018, the MNA provided further input on the MCP in advance of the  
draft going to Cabinet. An “Economic Impact Summary” presentation was also prepared by IR at  
this time. In it, the implementation of the MCP was shown to have a “low to moderate” impact on  
industry (energy sector) and an additional cost to the forestry sector of 0.2%. The presentation  
noted that industry supported a Regional approach as long as, inter alia, there was “buy-in at the  
local level” and single points of contact were known. In other words, a single point of contact was  
to be identified in each of the proposed Regions for the purposes of consultation. [1215]  
[117] On December 4, 2018, a Cabinet memorandum seeking approval of the MCP was drafted  
by the IR Minister. [1218] He requested Cabinet approval of both the Standards and the MCP. The  
IR Minister noted that the Standards, if approved, would form Alberta’s decision-making criteria  
regarding who to approach under the MCP. He stated that while the Standards had been approved  
in principle, there was a direction from Cabinet in July of 2018 to engage in further discussion  
about the Standards to ensure they were practical and feasible. Accordingly, through IR’s  
engagement with the MNA, minor amendments had been made to better align the Standards with  
the MNA’s preference and existing policies. IR sought approval of the amended Standards.  
[118] The memorandum also stated that fulsome engagement had occurred with industry,  
municipal and Métis stakeholders, and that, on the whole, the Regional approach to consultation  
was preferred “as long as the mechanism for consultation [was] clear and there [was] demonstrated  
support from Métis organizations for a regional approach”.  
[119] Finally, the Minister referred to the two appendices to the MCP that outlined the  
mechanism for Regional consultation under the MCP. Appendix A was the Standards and  
Appendix B was the “single point of contact parameters” which demonstrated “buy in” by Métis  
organizations (the “Appendices”). The expected implementation date for the MCP was Fall of  
2019, assuming approval by Cabinet.  
[120] The December 4, 2018 Cabinet Report entitled “Executive Summary on the MCP  
proposal” provided a history of the Standards and the development of the MCP. [1219] Following  
a discussion of the “Powley-lite” standard, the Report stated that the MNA would be the only Métis  
organization that would meet the Standards, thereby confirming the Regional approach to Métis  
consultation. However, concern with the Regional approach was expressed; 6 Locals in Region 1  
had already established relationships with project proponents, some of whom had long-term  
negotiated agreements. In addition, Locals in several Regions were not supportive of Regional  
consultation. The Regional Protocol Agreements were addressed, as were ongoing discussions  
between the MNA and the concerned Locals. The Report stated that disputes within the MNA’s  
governance structure were not Alberta’s responsibility to resolve, and that the MNA’s continued  
discussion with Locals would be important to the MCP’s success.  
[121] While the Report arguably advocated for Cabinet approval of a Regional approach to the  
MCP, consistent with the position of the MNA, it is clear that not all affected groups were in  
support of this approach. While the Regional approach was put forward as the preferred option,  
alternate options, including choosing not to adopt a public-facing policy and consulting with Métis  
organizations who could meet the Standards on a case-by-case basis, were also put forward. In her  
email of November 23, 2018, the IR Assistant Deputy Minister noted the limited time left to  
Page: 26  
finalize the materials to present to Cabinet. She acknowledged that meetings with concerned  
Locals needed to be held.  
[122] Other ministries, including the Ministry of Industry and Government Relations, raised  
concerns about timing, fiscal capacity and implementation of the MCP. [1139 and 1178]  
According to a November 28, 2018 “Stakeholder Management Plan”, Alberta acknowledged that  
there was some indication from the MNA that it may not support the MCP without a commitment  
from Alberta to work toward consultation with Region 3. [1188]  
[123] Uncertainty respecting the roles of various Métis organizations persisted; this was  
recognized by the December 4, 2018 letter from the IR Minister to the Willow Lake Métis (Fort  
McMurray) attaching discussion guides for the Standards and the MCP. [1212] The letter noted  
the benefits of adopting a Regional approach and reaffirmed that Alberta wanted to explore the  
approach and was actively considering it. However, it also acknowledged that the Standards did  
not prescribe a Regional approach, and that any organization meeting the Standards may be  
considered for consultation. Alberta was aware from its earlier engagement sessions that a  
Regional approach would only work if there was buy-in from all Métis in a Region. The letter  
I share your desire for an approach to consultation that is inclusive. It is  
important, also, to ensure that Métis community members decide who will  
represent them for the purposes of consultation. This is not a decision that Alberta  
will make for Métis people, and further, Alberta will respect that some Métis  
individuals may not wish to be represented by the MNA for consultation. In the  
proposed Standards for Métis Consultation, the topics of authority and  
representativeness are critical. Any organization that claims to represent Métis  
community members must show that it has been authorized by those community  
members to do so. I wish to clarify that the proposed Standards do not include a  
requirement of MNA membership, and the Alberta government has an obligation  
to consider any Métis organization that wishes to meet the Standards.  
[124] Concerns were also raised by the Policy Coordination Office of the Ministry of Executive  
Council in its “Key Messages” to the Deputy Minister dated December 14, 2018. [1243] While  
there was support for a Regional policy, stakeholders wanted to see the final draft Standards and  
draft MCP. The Policy Coordination Office concluded that:  
o We need time to test and validate these documents with all stakeholders and  
with the Métis, before Alberta will decide on them.  
o In addition, we want to spend more time discussing how consultation could  
work most effectively in the regions:  
. How locals will be included when its needed;  
. How timelines can be met; and  
. The capacity for the Regional offices to manage the number  
of incoming applications they will receive on a daily basis.  
Page: 27  
o We would like to conduct another round of targeted engagement in January  
of 2019, which would include discussions with industry, municipalities, the  
MNA and some of its locals  
[125] As a result of the above recommendations, IR did not return to Cabinet in December of  
2018 for approval of the MCP and Appendices. Rather, a 2019 “engagement strategy” for the  
Métis, industry and municipal stakeholders was developed, setting out IR’s ongoing plan to engage  
with stakeholders. [1244]  
[126] Following IR’s decision to proceed with further engagement, letters were sent to the  
Presidents of each Region as well as to the MNA President, thanking them for their ongoing  
contributions toward developing the MCP and advising them of funding for further consultation  
(“January 2019 Letters”). The letters referenced funding ranging from $250,000 to $315,000 to  
allow for meaningful engagement about the consultation policy and to allow the Regions (with the  
exception of Region 3) to engage in research. Research included traditional land use studies and  
gathering membership information for the 2019-2020 fiscal year. [1248]  
[127] A copy of the draft MCP and the Appendices were provided to the Regions (except Region  
3) on February 15, 2019. [1270] The same day, a memorandum was sent to the IR Minister  
advising that the Fort McKay Métis had recently terminated its relationship with the MNA and  
had dissolved Local #63; its community association now represented its members respecting  
consultation and the MCP. [1273]  
[128] According to a February 26, 2019 interal email chain, IR noted that further review of the  
MCP and any update to cross-ministry departments, industry and municpality stakeholders would  
occur after the provincial election. [1277]  
[129] In the interim, the 2018 Harvesting Policy was finalized, again with an effective date of  
September 1, 2019.  
[130] A provincial election was held on April 16, 2019 and a new government was formed by  
the United Conservative Party. As a part of the transition to a new government, a memorandum  
was prepared for the new IR minister about the MCP. The history of the process was reviewed,  
and the memorandum noted that the draft Standards and MCP had been sent to the MNA, Regions  
and Locals for review. IR was in the process of accepting written feedback to further inform the  
development of the MCP. It noted that the MNA was asked to continue collaborating on how  
consultation could work on a Regional scale and how that approach would align with the  
Province’s existing process. [1293]  
[131] While the newly formed government was briefed on issues and began talking with the  
MNA, various groups continued to submit their feedback to Alberta as per the January 2019  
[132] What happened between the parties following the change in government forms the crux of  
the issue before me because the MNA alleges that the Province acted unreasonably and breached  
the honour of the Crown after the 2019 election. I will briefly outline the interaction between the  
parties leading up to and including the Decision, and address these events in greater detail later in  
these reasons.  
Page: 28  
[133] On May 9, 2019, President Poitras wrote to the new Premier congratulating him and asking  
if they could meet to discuss the MCP. [1320] A date was set for June 19, 2019. In advance of the  
meeting, a number of Briefing Notes for the new IR Minister were provided.  
[134] The Record does not indicate exactly what was discussed during the June meeting.  
However, following the meeting, on July 25, 2019, President Poitras wrote to the IR Minister (the  
“July 2019 Letter”). [1335] In her letter, she outlined aspects of the MCP which she viewed as  
problematic, and outlined a new approach. Specifically, she described why any approach to Métis  
consultation had to be Regional in nature.  
[135] Following receipt of this letter, a handwritten note dated August 12, 2019, stated that  
moving forward with the MCP was not a good idea at the time. [1361] An internal Briefing Note  
created the following day (the “August 2019 Note”) recommended having no public-facing Métis  
consultation policy. [1338] Instead, it advocated for continued use of the existing Credible  
Assertion Process and Internal Criteria to assess claims on a case-by-case basis. It recommended  
contacting President Poitras in this regard.  
[136] On September 5, 2019, the IR Minister wrote to President Poitras advising her of the  
Decision. Specifically, the communication stated that “[a]t this time, Alberta will not be moving  
forward with the draft consultation policy…”. [1348]  
[137] The MNA applies to have the Decision set aside.  
Is the Decision Amendable to Judicial Review?  
[138] In its Amended Originating Application for judicial review filed October 19, 2020, the  
MNA took the position that the Decision:  
a) breached the duties owing to the MNA flowing from the honour of the Crown  
imposed given the entirety of the context, resulting in:  
(i) breaching the Crown’s context-specific duty to negotiate owing  
to the MNA based upon the engagement of s 35 harvesting rights;  
(ii) breaching the Crown’s obligations owing to the MNA, once  
negotiations had begun, to act honourably, negotiate in good faith  
and in an intellectually honest manner, and to avoid the appearance  
of sharp dealing;  
(iii) breaching the Crown’s duty to develop a policy or other  
mechanism that addresses its duty to consult […]  
b) was unreasonable; and  
c) failed to fulfil the high level of fairness required in the circumstances.  
[139] As noted above, the MNA abandoned its initial request for a declaration that the Decision  
breached the Crown’s duty to develop a consultation policy.  
Page: 29  
[140] The Crown is correct in stating that government policy is generally not judicially  
reviewable, as long as the policy conforms to legal limits: Athabasca Chipewyan First Nation v  
Alberta, 2019 ABCA 401 at para 50, aff’g 2018 ABQB 262 (“Athabasca”). It argues that forming  
a policy is political in nature, citing Hayes and Jacobs v Smallwood et al, 2000 BCSC 1665 at  
para 25, which in turn cites the Supreme Court of Canada’s decision in Thorne's Hardware Ltd v  
The Queen, [1983] 1 SCR 106:  
The formulation of policy and the expression of policy are political in nature and  
it is not the responsibility of courts or within their powers to review and thus  
implicitly dictate policy. To do so would not respect the historic dichotomy  
between the roles of the state and the courts. The accountability of the minister for  
policy and its formulation is to the legislature and not to the courts absent those  
"egregious" circumstances to which Dickson, J. alluded in Thorn’s Hardware  
Ltd. v. The Queen. It is in the course of the implementation of policy that review  
can occur, not in the formulation or announcement of it…[emphasis added]  
[141] The Crown takes the position that the MNA is not challenging the vires of a policy  
(distinguishing it from L’Hirondelle v Alberta (Sustainable Resource Development), 2013  
ABCA 12 at paras 17-22, leave to SCC refused, 2013 CanLII 35703 (“L’Hirondelle”)), but rather  
is challenging Alberta’s decision “not to adopt an MCP and rely instead on its existing process for  
meeting its legal duty to consult”.  
[142] The Crown relies, in part, on Manitoba Métis Federation Inc v The Government of  
Manitoba et al, 2018 MBQB 131 (“MMF) in support of its position that its decision not to  
proceed with the MCP and instead rely on the existing Credible Assertion Process is not justiciable.  
From October of 2011 until March of 2016, the parties in MMF entered into a series of annual  
funding agreements. The last funding agreement was neither extended nor renewed by the  
government, despite the plaintiff having submitted its funding proposal on the same terms as in  
previous years. In April of 2016, a new government was formed and at an in-person meeting  
between the two parties, the plaintiff was advised that the annual funding agreement would not be  
entered into for the 2016-2017 fiscal year. Thereafter, the Manitoba Métis Federation sought  
production of Crown documents within the broader context of its application for judicial review.  
[143] The Court analyzed the history and relationship between the parties, as well as the funding  
agreements, and concluded that the decision not to provide further funding was not judicially  
reviewable. The Defendant’s decision could reasonably be seen as a statement “reflecting policies  
and priorities regarding the expenditure of public funds”: MMF at para 53. It concluded that no  
commitment was made by the government to continue funding and the Court would be usurping a  
legislative function if it were to direct the disbursement of Crown funds: MMF at para 57.  
[144] The Court further held that the Manitoba Métis Policy (which set out the Government’s  
approach in addressing its relationship with Métis and their issues) was aspirational in nature and  
did not create criteria whereby the Minister’s decision could be reviewed. Similarly, commitments  
made in The Path to Reconciliation Act, CCSM, c R30.5, did not “set out any specific, substantive  
or legal obligations particularly in respect of discretionary decisions regarding the expenditure of  
public funds”, nor did it “mandate the Respondent government to implement any particular  
program or approve any specific action”: MMF at para 82.  
Page: 30  
[145] The Court concluded that s 35 was not engaged on the facts before it, as nothing in the  
agreements was intended to create any ongoing obligation, or reflect the accommodation of an  
asserted right.  
[146] In my view, MMF is readily distinguishable from the case before me. As the Court  
repeatedly noted throughout its reasons, the matter concerned government expenditure of public  
funds. The terms of the funding agreements between the parties were particularized and the  
Crown’s engagement was limited in scope to budgetary matters. The funding agreements were  
reviewable annually with no duty or obligation on the Crown to extend or renew them.  
[147] In the case before me, while Alberta submits that the government’s decision to rely on its  
existing Credible Assertion Process was a policy decision, I note that the MNA is not challenging  
the outcome of the engagement process per se. Rather, the MNA takes issue with the process by  
which the Decision was reached and disputes whether the honour of the Crown was breached in  
the manner in which Alberta terminated the development of the MCP. The MNA submits that  
Alberta’s action negatively impacted the constitutional imperative of the right to be negotiated  
with and therefore the Decision is subject to review. The MNA fundamentally disagrees with  
Alberta’s characterization of the Decision as a mere matter of policy.  
[148] In Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163 (“Prosper”),  
Greckol JA of our Court of Appeal commented on the distinction between negotiations and policy  
discussions. In Prosper, the Fort McKay First Nation (the “FMFN”) appealed a decision of the  
Alberta Energy Regulator (the “AER”) approving Prosper Petroleum’s application for a bitumen  
recovery project located near the FMFN’s Moose Lake Reserves.  
[149] In 2001, the FMFN and Alberta commenced discussions about protecting the Moose Lake  
Reserves area. By 2003, discussions turned to the creation of a Moose Lake Access Management  
Plan (the “MLAMP”) to address the cumulative effects of the oil sands development on the  
FMFN’s treaty rights to harvest. These negotiations were stalled while the Lower Athabasca  
Regional Plan (the “LARP”) was negotiated and implemented. The LARP was a Regional plan  
developed pursuant to the Alberta Land Stewardship Act, SA 2009, c A-26.8, for the management  
of Alberta’s natural resources. Upon finalization, the MLAMP was to be a sub-Regional plan under  
the LARP.  
[150] During negotiations between Alberta and the FMFN in 2009-2010 about the LARP, the  
FMFN sought a ten-kilometre buffer zone from development around the Moose Lake Reserves.  
This request was denied, following which the FMFN applied for a review of the LARP in 2013.  
[151] In 2014, Alberta’s then Premier met with the Chief of the FMFN to discuss the MLAMP.  
In 2015, a letter of intent (the “LOI”) was executed confirming the parties’ “mutual commitment  
and interest in an expedited completion of the [MLAMP]”, with Alberta acknowledging the  
“importance of Moose Lake to the community of Fort McKay” and stating that it was looking  
forward to “advancing mutual goals for the management of the region”. The LOI contemplated  
that a draft MLAMP would be completed and approved by 2016 and that the implementation of a  
plan concerning the ten kilometres of land around the Moose Lake Reserves would be completed  
by September 30, 2015. Despite the LOI, the MLAMP was not finalized and remained the subject  
of ongoing negotiations at the time the AER approved Prosper Petroleum’s application. The  
Page: 31  
application situated the defendant’s project location within five kilometres of the Moose Lake  
[152] The AER found that because the MLAMP had not been implemented, only the LARP and  
its regulatory details could be considered. Specifically, it concluded that the existence of the  
MLAMP negotiations was not a valid reason to deny the application and further, that it had no  
jurisdiction concerning the adequacy of Crown consultation: Prosper at para 21.  
[153] On appeal, the FMFN argued that the AER failed to consider Alberta’s obligation to act  
honourably in relation to Aboriginal and treaty rights in determining whether the defendant’s  
project was in the public interest. Alberta argued that FMFN’s position would have required the  
AER to erroneously consider the adequacy of Crown consultation or would have placed the AER  
in a supervisory role over Crown policy decisions, which was beyond its jurisdiction. It further  
argued that the LOI was “a good faith commitment to work with the First Nation and other  
stakeholders, not an accommodation of the Project”: Prosper at para 35.  
[154] The Court of Appeal held that the AER should have considered the honour of the Crown  
in relation to the MLAMP negotiations as a part of its assessment. There was no basis for the AER  
to decline to consider the MLAMP process as part of its assessment of the public interest, and  
instead defer the issue to Cabinet. The Court further commented that the AER’s consideration of  
the issues would not have placed the regulator in an improper role relative to government policy  
decisions: Prosper at paras 67 and 68. The Court of Appeal concluded, that to preclude such  
considerations would be an unreasonably narrow view of what comprises the public interest,  
particularly having regard for the direction to all government actors to foster reconciliation.  
[155] In concurring reasons, Greckol JA provided guidance in relation to the honour of the  
Crown and the ongoing MLAMP negotiations. Specifically, in speaking to the cumulative effects  
of development on the FMFN’s treaty rights, and the role for negotiations in dispute settlement,  
she wrote at para 82 that:  
… The Crown has long been on notice that the piece-meal approach to addressing  
FMFN's concerns through consultation on individual projects has not adequately  
considered the cumulative effects of development. Whether MLAMP itself is  
mandated by Treaty 8 is not the issue. If the evidence establishes that the Crown  
entered into negotiations with FMFN on a buffer zone and ultimately agreed to  
implement MLAMP as a way of seeking to uphold its ongoing constitutional  
obligation to protect FMFN's right to hunt within its traditional area, then these  
were not, as suggested by Alberta, mere "policy" discussions. They would instead  
be negotiations designed to ensure that the Crown meet its treaty obligations. In  
such circumstances, the honour of the Crown would be engaged. [emphasis  
[156] In the case before me, there was no ultimate agreement between the MNA and Alberta to  
enact the MCP. However, Alberta stated that it would work with the MNA and others to present a  
proposed MCP to Cabinet. Having reviewed and considered the Record, I find that Alberta  
engaged the MNA and other stakeholders in an attempt to more clearly address instances where  
Alberta’s Métis have asserted a s 35 right: namely, the right to consultation and/or accommodation  
concerning projects that affect Métis interests. I find that the parties entered into protracted  
Page: 32  
discussions in an attempt to create a process through which the Crown could more clearly address  
its duty to consult with off-Settlement Métis under s 35.  
[157] I will address Alberta and the MNA’s communications in more detail later in these reasons  
when discussing the MNA’s assertions respecting the Crown’s duty to negotiate. In the present  
context, for the purposes of resolving the question of whether the Decision is amenable to judicial  
review, I conclude that the development of the MCP was something more than simply the Crown  
advising or engaging with the MNA with respect to a Crown-developed policy. To borrow the  
language of Greckol JA in Prosper, the character of this engagement process was “not, as  
suggested by Alberta, mere ‘policy’ discussions”: para 82. Such language equally applies to the  
Record before me; the engagement between the parties was more than a mere policy discussion.  
[158] Alberta made many assurances to the MNA over a period of approximately five years  
during which time the parties engaged in discussions aimed at realizing a mutual goal. Although  
other stakeholders were involved, the Record includes evidence that Alberta described the MNA  
as a “primary” or “key” stakeholder and as a “stable partner”. Alberta and the MNA worked on  
Terms of Reference and a draft project Charter to further the development of the MCP, and support  
of the MNA was considered key in finalizing the MCP. The MNA also provided Alberta with  
proprietary information in support of its position. Drafts of the MCP were exchanged, and in  
several instances, the MNA suggested language and approaches for inclusion in the MCP. Alberta  
incorporated some of the MNA’s suggestions, while clearly rejecting others.  
[159] In my view, the Decision is not shielded from judicial review.  
The Applicable Standards of Review  
[160] The Manitoba Court of Appeal recently addressed the standard of review relevant to the  
case before me, in Manitoba Métis Federation Inc v Brian Pallister et al, 2021 MBCA 47, leave  
to appeal to SCC filed September 21, 2021 (“Pallister). In Pallister, the applicant initially applied  
for judicial review in relation to an Order in Council authorizing a directive which ordered, among  
other things, that the Manitoba Hydro-Electric Board not proceed with a Manitoba Métis  
Federation/Hydro term sheet agreement called the “Major Agreed Points” (the “MAP”) at that  
particular time. The applicant applied for the prerogative writ of certiorari against Manitoba to set  
aside the Order in Council, the directive and decision. In addition, it sought a declaration that  
Manitoba had not acted in accordance with the honour of the Crown in making the Order in  
Council, the directive nor the decision.  
[161] The reviewing judge dismissed the application, concluding that the directive was a lawful  
and reasonable exercise of Cabinet’s statutory power over Hydro and that the honour of the Crown  
was not engaged. He further ruled that the applicant was not entitled to any special procedural  
rights in relation to the issuance of the Order in Council. Alternatively, if the honour of the Crown  
was engaged, Manitoba acted honourably in the circumstances.  
[162] At the Manitoba Court of Appeal, the Manitoba Métis Federation argued that the reviewing  
judge erred in finding that the honour of the Crown did not apply, that the directive was within  
Cabinet’s statutory authority and that it was not owed distinct procedural rights in relation to the  
approval and issuance of the directive and decision.  
Page: 33  
[163] The Court of Appeal found that the reviewing judge erred in concluding that the honour of  
the Crown was not engaged. However, the Court held that on the standard of reasonableness,  
Manitoba acted reasonably in the circumstances. The Court dismissed the Manitoba Métis  
Foundation’s other grounds of appeal.  
[164] In the judicial review application before me, the MNA submits that Alberta breached the  
honour of the Crown in deciding to unilaterally terminate negotiations respecting the MCP,  
whereas Alberta submits that the honour of the Crown was not engaged in the circumstances.  
[165] In Pallister, the Court discussed in detail the standard of review applicable when deciding  
whether the honour of the Crown was engaged and if so, what obligations or duties arose  
therefrom. The Court wrote at paras 16 and 17:  
The first issue is whether the honour of the Crown was engaged. By which  
standard is a reviewing judge to review this issue? The short answer is that, given  
the constitutional nature of the question, the correctness standard of review  
applies. However, the review is comprised of several steps sometimes requiring  
the application of different standards of review (similar to the multi-faceted  
analysis when deciding whether there is a Charter breach (see R v Farrah (D),  
2011 MBCA 49 at para 7)). A reviewing judge must seek to understand the  
decision-maker's reasoning process and must be alive to the relevant factual and  
legal constraints that bear on the decision (see Canada (Minister of Citizenship  
and Immigration) v Vavilov, 2019 SCC 65 at para 99). The multi-faceted standard  
of review analysis, to determine whether the honour of the Crown (the ultimate  
issue) is engaged, follows:  
a) on constitutional matters there can only be one correct answer -  
reasonable people cannot disagree on the answer. Since the honour  
of the Crown pertains to the scope of Aboriginal rights under  
section 35 of the Constitution Act, 1982, the reviewing judge must  
apply the correctness standard of review to the ultimate issue (see  
Vavilov at para 55);  
b) the reviewing judge will review the agreement to determine  
whether the honour of the Crown is engaged. The principles of  
contractual interpretation generally apply to agreements with  
Indigenous peoples (see Quebec (Attorney General) v Moses, 2010  
SCC 17; and Canada (Attorney General) v Fontaine, 2017 SCC  
47). Contractual interpretation (outside of standard form contracts)  
is a question of mixed fact and law to be reviewed on the standard  
of reasonableness (see Sattva Capital Corp v Creston Moly Corp,  
2014 SCC 53);  
c) certain duties (i.e., duty to consult and accommodate) flow from  
the principle of the honour of the Crown. To the extent that the  
manner in which these duties are carried out is "premised on an  
assessment of the facts", the adequacy of how they are discharged  
is owed deference and will generally be reviewed on the  
Page: 34  
reasonableness standard (Haida Nation v British Columbia  
(Minister of Forests), 2004 SCC 73 at para 61);  
d) certain obligations (i.e., to act honourably, with integrity and in  
good faith) also flow from the principle of the honour of the  
Crown. Once again, to the extent that the manner in which they are  
carried out is "premised on an assessment of the facts" (ibid), the  
adequacy of how they are discharged is generally reviewed on the  
reasonableness standard (see Haida at paras 60-63);  
e) where the reasonableness standard applies (see steps b), c) and  
d)), the party challenging the decision has the burden to show that  
it is unreasonable. Before it can be set aside, the reviewing judge  
"must be satisfied that there are sufficiently serious shortcomings  
in the decision such that it cannot be said to exhibit the requisite  
degree of justification, intelligibility and transparency" (Vavilov at  
para 100). To set the decision aside, its flaws "must be more than  
merely superficial or peripheral to the merits of the decision" (ibid;  
see also para 101); and  
f) once steps b), c), d) and e) have been considered, the reviewing  
judge will take a last look at the accepted factual foundation and,  
applying the correctness standard of review, decide the ultimate  
issue (whether the honour of the Crown is engaged in the  
In the case at hand, on the issue of whether the honour of the Crown was engaged,  
the reviewing judge correctly found that the applicable standard of review was  
correctness. On whether Manitoba acted honourably in the circumstances,  
assuming the honour of the Crown was engaged, the reviewing judge correctly  
found that the applicable standard of review was reasonableness.  
[166] Given the above, the correctness standard of review applies in determining whether the  
honour of the Crown was engaged on the facts before me. If the honour of the Crown was engaged,  
the standard of reasonableness applies in assessing Alberta’s conduct in the circumstances.  
[167] The MNA also submits that the Decision was unreasonable because it was: (i) based on  
internally incoherent reasoning; and (ii) not justifiable in light of the factual and legal constraints  
that bear upon it. The Crown argues, in the alternative, that if the Decision is reviewable, it is  
reasonable when read in light of the entire Record. The standard of review in assessing the  
Decision itself is one of reasonableness: Canada (Minister of Citizenship and Immigration) v  
Vavilov, 2019 SCC 65 at para 83 (“Vavilov”).  
[168] The MNA further asserts that it was not afforded procedural fairness when Alberta made  
the Decision. The Crown takes the position that in the circumstances, no duty of fairness was owed  
to the MNA.  
[169] In Vavilov, the Supreme Court of Canada stated, at para 77, that examining the factors  
outlined in Baker v Canada (Minister of Citizenship & Immigration), [1999] 2 SCR 817, assists  
in assessing whether a process was fair. The non-exhaustive list of factors that inform the content  
Page: 35  
of the duty of procedural fairness in a particular case include: (i) the nature of the decision being  
made and the process followed in making it; (ii) the nature of the statutory scheme; (iii) the  
importance of the decision to the individual or individuals affected; (iv) the legitimate expectations  
of the person challenging the decision; and (v) the choices of procedure made by the administrative  
decision maker itself: Baker at paras 23-27.  
[170] The Court in Baker held, at para 22:  
Although the duty of fairness is flexible and variable, and depends on an  
appreciation of the context of the particular statute and the rights affected, it is  
helpful to review the criteria that should be used in determining what procedural  
rights the duty of fairness requires in a given set of circumstances. I emphasize  
that underlying all these factors is the notion that the purpose of the participatory  
rights contained within the duty of procedural fairness is to ensure that  
administrative decisions are made using a fair and open procedure, appropriate to  
the decision being made and its statutory, institutional, and social context, with an  
opportunity for those affected by the decision to put forward their views and  
evidence fully and have them considered by the decision-maker.  
[171] The parties before me agree that the standard of review for questions of procedural fairness  
is “whether the standard of fairness required by the common law has been met”: R v Ferzli, 2020  
ABCA 272 at para 21.  
Did Alberta Breach the Duties Owing to the MNA Flowing from the Honour of the  
The Unique History of the Métis  
[172] Any legal analysis concerning the Métis people of Canada, the honour of the Crown and  
duties arising thereunder, including the duty to negotiate, must take place against a background  
which acknowledges the distinct history of the Métis in Canada and how this history is situated in  
the legal arena.  
[173] The MNA submits, and I accept, that unique difficulties arise in matters concerning the  
assertion of rights of Métis, and more notably, non-Settlement Métis, as compared to other s 35  
Aboriginal groups. The governance or organization of off-Settlement Métis is not always clear. As  
described in Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC  
37 at para 70 (“Cunningham”):  
…The history of the Métis is one of struggle for recognition of their unique  
identity as the mixed race descendants of Europeans and Indians. Caught between  
two larger identities and cultures, the Métis have struggled for more than two  
centuries for recognition of their own unique identity, culture and governance.  
[174] The Court in Cunningham commented further on the consequences of this uniqueness,  
stating at paras 7-8 that historically:  
Page: 36  
The Crown did not apply to the Métis its policy of treating with the Indians and  
establishing reservations and other benefits in exchange for lands. […] However,  
Métis communities were not given a collective reservation or land base; they did  
not enjoy the protections of the Indian Act or any equivalent. Although widely  
recognized as a culturally distinct Aboriginal people living in culturally distinct  
communities, the law remained blind to the unique history of the Métis and their  
unique needs.  
Governments slowly awoke to this legal lacuna. […]  
[175] With the passage of the Constitution Act, 1982, the Métis were, for the first time,  
acknowledged as a distinct rights-holding group. Two decades later, the Powley Court confirmed  
the status of the Métis people as “full-fledged rights-bearers” and confirmed their inclusion in s 35  
“based on a commitment to recognizing the Métis and enhancing their survival as distinctive  
communities”: paras 29 and 13. The guarantee of rights under s 35 operates as a limit on federal  
and provincial government powers: Tsilhqot’in Nation (2014 SCC 44) at paras 139-142.  
[176] Following Powley, the Supreme Court of Canada explained that the purpose behind s 35 is  
“[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-  
term relationship”: Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 10.  
[177] More recently, in R v Desautel, 2021 SCC 17 (“Desautel”), the Court summarized at para  
57 that:  
In Powley, the Court modified, though it did not overrule, the Van der Peet test to  
accommodate the particular situation of the Métis (see paras. 14 and 18). It also  
offered some comments on how courts can determine membership in the Métis  
community in the absence of formalized procedures (para. 29). Importantly, these  
comments were not about who is an "aboriginal peopl[e] of Canada" under s.  
35(1), but rather about how courts can identify Métis individuals. The Court noted  
that "groups of Métis have often lacked political structures and have experienced  
shifts in their members' self-identification" (para. 23), such that "determining  
membership in the Métis community might not be as simple as verifying  
membership in ... an Indian band" (para. 29). [emphasis in original]  
[178] However, as stressed by the MNA in argument, “…the difficulty of identifying members  
of the Métis community must not be exaggerated as a basis for defeating their rights under the  
Constitution of Canada”: Powley at para 49. That is, “…[t]he government cannot simply sit on its  
hands and then defend its inaction because the nature of the right or the identity of the bearers of  
the right is uncertain”: R v Powley, [2001] 2 CNLR 291 (ON CA) at para 166, aff’d 2003 SCC 43.  
[179] The MNA asserts that this is precisely what is happening in the case at bar. Alberta had a  
duty to continue negotiating with the MNA about the MCP, especially after stating that the existing  
Credible Assertion Process “doesn’t work”. Despite this, the government ceased engagement with  
the MNA; this mirrors the historical approach of inaction. The MNA asserts that for the IR  
Minister, the honour of the Crown and the resulting duty to negotiate played no role in developing  
the government’s chosen approach to consultation.  
Page: 37  
[180] With this backdrop in mind, I next turn to whether the Crown engaged in negotiations with  
the MNA and if so, whether the Crown acted in a manner consistent with the honour of the Crown.  
In order to address these issues, I will provide an overview of the law respecting the honour of the  
Crown and the duty to negotiate, before turning to a discussion of the specific circumstances of  
this case.  
B. The Honour of the Crown: Legal Principles  
[181] The honour of the Crown is a foundational principle of Indigenous law. The meaning of  
“the honour of the Crown” was succinctly addressed by the Court in Haida Nation v British  
Columbia (Minister of Forests), 2004 SCC 73 at paras 16-18 (“Haida”):  
The government's duty to consult with Aboriginal peoples and accommodate their  
interests is grounded in the honour of the Crown. The honour of the Crown is  
always at stake in its dealings with Aboriginal peoples […] It is not a mere  
incantation, but rather a core precept that finds its application in concrete  
The historical roots of the principle of the honour of the Crown suggest that it  
must be understood generously in order to reflect the underlying realities from  
which it stems. In all its dealings with Aboriginal peoples, from the assertion of  
sovereignty to the resolution of claims and the implementation of treaties, the  
Crown must act honourably. Nothing less is required if we are to achieve "the  
reconciliation of the pre-existence of aboriginal societies with the sovereignty of  
the Crown” […].  
The honour of the Crown gives rise to different duties in different circumstances.  
[182] More recently, the Manitoba Court of Appeal in Pallister reiterated the history and  
formation of the honour of the Crown and succinctly stated at para 8 that:  
Simply put, Indigenous peoples have a special relationship with the Crown that  
imposes certain constitutional obligations on the Crown, and that provides  
Indigenous peoples with certain collective constitutional Aboriginal and treaty  
rights. This special relationship requires the Crown to deal honourably with  
Indigenous peoples.  
[183] The underlying purpose of the honour of the Crown is the reconciliation of pre-existing  
Aboriginal societies with the assertion of Crown sovereignty: Manitoba Métis Federation Inc. v  
Canada (Attorney General), 2013 SCC 14 at paras 66-67 (“Manitoba Métis (2013)”). The  
importance of this principle was recently discussed by our Court of Appeal in AltaLink  
Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342 (“AltaLink”), where Feehan  
JA held, in concurring reasons at paras 84-85, that the honour of the Crown should be exercised in  
a manner consistent with the principle of reconciliation, and that:  
…The honour of the Crown guides all of the Crown's interactions with  
Indigenous peoples that have the potential to affect rights protected by s 35, in  
accordance with its historical and future relationship with Indigenous peoples:  
para 90.  
Page: 38  
[184] While the honour of the Crown is always at stake in its dealings with Indigenous peoples,  
it is not engaged by every interaction: Prosper at para 54. In Manitoba Métis (2013), the Supreme  
Court noted that the honour of the Crown is “not a cause of action itself; rather, it speaks to how  
obligations that attract it must be fulfilled”: para 73 [emphasis in original]. The same paragraph  
identified four situations in which the honour of the Crown has been applied, those being:  
(1) The honour of the Crown gives rise to a fiduciary duty when the Crown  
assumes discretionary control over a specific Aboriginal interest;  
(2) The honour of the Crown informs the purposive interpretation of s 35 of the  
Constitution Act, 1982, and gives rise to a duty to consult when the Crown  
contemplates an action that will affect a claimed but as of yet unproven  
Aboriginal interest;  
(3) The honour of the Crown governs treaty-making and implementation, leading  
to requirements such as honourable negotiation and the avoidance of the  
appearance of sharp dealing; and  
(4) The honour of the Crown requires the Crown to act in a way that accomplishes  
the intended purposes of treaty and statutory grants to Aboriginal peoples.  
[185] The Court continued, at para 75, that the honour of the Crown requires the Crown, when  
implementing a constitutional obligation to Aboriginal peoples, to take a broad, purposive  
approach to the interpretation of the promise and act diligently to fulfill it.  
[186] The above-noted situations are not “closed” and the honour of the Crown can give rise to  
duties outside the duty to consult: Prosper at para 53. In Mikisew Cree First Nation v Canada  
(Governor General in Council), 2018 SCC 40 at para 52 (“Mikisew”), the Court stated that even  
where an Indigenous group cannot “challenge legislation on the basis that the duty to consult was  
not fulfilled, other protections may well be recognized in future cases”. The MNA asserts that the  
Crown’s honour is engaged in situations such as the one at bar, where the parties entered into a  
sustained negotiation in an effort to address and clarify ongoing consultation issues.  
[187] The well-recognized and established duties flowing from the honour of the Crown include  
the duty to consult and the duty to accommodate. The MNA submits the general framework for  
the duty to consult before a rights claim has been decided, as laid out in Haida, is transferrable in  
structuring the duty to negotiate. That is, the duty to negotiate may be determined by examining  
the following: (i) the source of the duty; (ii) when the duty arises; and (iii) the scope and context  
of the duty.  
[188] The MNA correctly asserts that “the source of the duty” to negotiate arises from the  
reconciliation of pre-existing Indigenous interests with those of the state; existing rights are  
recognized and affirmed under s 35. Numerous courts have described the benefits of attempting  
reconciliation through negotiation as opposed to litigation. Like the duty to consult, the duty to  
negotiate may be viewed as a “valuable adjunct” to the honour of the Crown: Mikisew at para 26.  
The duty to consult arises from the honour of the Crown, as does the duty to negotiate. There is no  
real controversy between the parties as to the source of the duty.  
Page: 39  
[189] The important role of negotiation in fostering reconciliation was addressed by the Court in  
Desautel, where the majority stated at paras 87-88 that:  
Negotiation has significant advantages for both the Crown and Aboriginal peoples  
as a way to obtain clarity about Aboriginal rights:  
Negotiation ... has the potential of producing outcomes that are  
better suited to the parties' interests, while the range of remedies  
available to a court is narrower. ... The settlement of indigenous  
claims [has] an inescapable political dimension that is best handled  
through direct negotiation.  
(S. Grammond, Terms of Coexistence, Indigenous Peoples and  
Canadian Law (2013), at p. 139)  
Negotiation also provides certainty for both parties (Beckman, at para. 109, per  
Deschamps J., concurring). As the Court said in Clyde River (Hamlet) v.  
Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24,  
"[t]rue reconciliation is rarely, if ever, achieved in courtrooms".  
Good faith from both parties is required. As the Court said in Haida, at para. 25,  
the honour of the Crown "requires the Crown ... to participate in processes of  
negotiation" (see also B. Slattery, "Aboriginal Rights and the Honour of the  
Crown" (2005), 29 S.C.L.R. (2d) 434, at pp. 436-37). Reconciliation requires the  
Crown and Aboriginal people to "work together to reconcile their interests" (Rio  
Tinto, at para. 34; see also Nacho Nyak Dun, at para. 1).  
[190] Similarly, the Court in Mikisew stated that reconciliation may be facilitated “by promoting  
negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially  
imposed outcomes”: para 22. [emphasis added]  
[191] Negotiations conducted in a manner consistent with the honour of the Crown are those in  
which the Crown: (i) acts with honour and integrity; (ii) avoids the appearance of sharp dealings;  
(iii) negotiates without an oblique motive; (iv) discloses relevant factors; and (v) demonstrates a  
willingness to accommodate Indigenous interests: Ross River Dena Council v Canada (Attorney  
General), 2017 YKSC 59 at para 349 (“Ross River”).  
The Duty to Negotiate and What Constitutes a Negotiation?  
[192] I turn next to address “when the duty arises”.  
[193] The MNA asserts that the Crown’s duty to negotiate was triggered in two ways. First, as  
outlined at para 139 of its written brief, the MNA suggests that the 2007 Policy, the 2018  
Harvesting Policy and the 2019 Harvesting Agreement, together with this Court’s decisions in R  
v Kelley, 2007 ABQB 41 and Fort Chipewyan, triggered the Crown’s upstream duty to negotiate  
with the Métis and at the very least, proactively identify who should be consulted by the Crown  
regarding accommodated Métis s 35 harvesting rights. Second, as outlined at para 140 of its written  
brief, the MNA points to the five-year engagement process, together with repeated commitments  
made by Alberta to the MNA, as also triggering the duty to negotiate with respect to the MCP.  
Page: 40  
[194] Conversely, the Crown asserts that the facts at bar are starkly different than those  
underlying the cases in which a duty to negotiate has been found. It submits that the matter before  
the Court does not involve an Indigenous right or title claim. Further, there is nothing requiring  
the Crown to negotiate a policy with the MNA in order to meet its constitutional obligations; the  
duty to negotiate was not triggered. The Crown maintains that the parties engaged in policy  
discussions and did not enter into negotiations.  
[195] I will not address the MNA’s first argument respecting whether, and when, the duty to  
negotiate was triggered because I am satisfied, based on my review and consideration of the  
Record, that Alberta and the MNA were involved in a negotiation. I accept the MNA’s second  
argument that the dealings between Alberta and the MNA was a negotiation.  
[196] The MNA asserts that the legal meaning of “negotiation” is well established. It quotes  
International Corona Resources Ltd. v Lac Minerals Ltd. (1986), 25 DLR (4th) 504 (Ont HCJ)  
where the Court adopted the following definition, at para 180:  
The word negotiate is defined in the Shorter Oxford English Dictionary (1973), in  
part as follows:  
1. ... to confer (with another) for the purpose of arranging some  
matter by mutual agreement; to discuss a matter with a view to a  
settlement or compromise.  
[197] With respect, I consider this definition of negotiation too broad to be helpful in the present  
[198] I agree that parties may be involved in a negotiation, regardless of whether they have  
formally referred to their engagement using this term. It is the manner of their interaction which  
informs this determination. In cases where the parties have not used the express term “negotiate”,  
courts must review the evidence to consider and assess the purpose, content and scope of their  
interactions: Prosper at para 82. In addition, it is not determinative for one party to declare that  
they are not involved in a negotiation. Notably, the Record shows that while Alberta explicitly  
stated that any “engagement during the policy development is not negotiation”, Alberta elsewhere  
referred to being involved in negotiations respecting the MCP. [418 and 906]  
[199] It is clear to me that both parties entered into a collaborative process which took place over  
a number of years, involved numerous in-person meetings and ongoing correspondence, and that  
certain assurances were made as these discussions progressed.  
[200] As already noted, the MNA was considered a “key participant and critical source of input”.  
[336] Engagement on the MCP began with Alberta working directly with the MNA; Alberta felt  
that the MNA was best suited to enter into such technical discussions, and felt it was a “stable  
partner” with whom to collaborate. [63]  
[201] The nature of the parties’ core interactions supports a finding that they were involved in a  
negotiation. From the outset, they worked together to draft the terms of reference outlining the  
essential objectives of the MCP process. They also worked together to develop the draft MCP  
Charter, with IR sending a copy to the MNA for review and comment. Ultimately, both parties  
collaborated and provided input toward the language used in the draft policy to be presented to  
Page: 41  
Cabinet in June of 2018. [807] The nature of the comments in the documents indicate that the  
Crown and the MNA were involved in a dialogue for the purpose of reaching an understanding or  
a compromise regarding the final draft policy. [950]  
[202] There was an ongoing discussion between the two parties, consistently aimed at moving  
the process along. Alberta provided the MNA with funding and the MNA provided the Province  
with required genealogical research and historical/contemporary information through a series of  
presentations. The Province also, at times, conditionally supported having the MNA’s Regional  
offices proposed as the contact point under the “single point of contact parameters” (Appendix B  
of the 2018 Cabinet Memorandum), premised on the MNA demonstrating support for this  
approach through the Regional Protocol Agreements. There was consistent back-and-forth  
between the parties about the extent that Alberta should involve other Métis groups in the MCP  
[203] The above activities, in my view, demonstrate that the parties were involved in a  
negotiation. As a result, Alberta was required to act in a manner consistent with the honour of the  
Crown. Thus, to the extent that Alberta takes the position (in the alternative or otherwise) that the  
honour of the Crown was not engaged in this instance, I conclude that is incorrect.  
Negotiation and the Honour of the Crown Scope and Context  
[204] The MNA submits that because the honour of the Crown was engaged, a certain process  
was demanded in order for Alberta to discharge its duty to negotiate. Specifically, a process guided  
by respect, integrity and transparency, given the ultimate aim of furthering reconciliation. The  
MNA asserts that the Crown did not engage in a manner consistent with the honour of the Crown.  
[205] Alberta submits that if the honour of the Crown was engaged, it met any obligations  
thereunder, particularly given the content of the July 2019 Letter, which the Crown views as  
demonstrating an unwillingness on the part of the MNA to continue in the engagement process.  
[206] In determining whether the Crown acted in a manner consistent with the honour of the  
Crown, the Court in Manitoba Métis (2013) stated at para 83:  
The question is simply this: Viewing the Crown's conduct as a whole in the  
context of the case, did the Crown act with diligence to pursue the fulfillment of  
the purposes of the obligation?  
[207] At bar, the obligation in issue is the requirement to negotiate honourably. The law is clear  
that while both parties must try, there is no obligation to reach an agreement through negotiations:  
Haida at para 10. As more recently noted in Ross River at para 350:  
It is also accepted that the concept of negotiating in good faith does not create a  
duty to reach an agreement: Gitxsan, at para. 50; Chemainus First Nation, at para.  
26; nor does it require a party to negotiate endlessly: Chemainus First Nation, at  
para. 26. In general, the parties must make reasonable efforts to negotiate and  
reach an agreement. Tysoe J., as he then was, put it this way in Gitxsan:  
50 The honour of the Crown requires it to conduct such  
negotiations in good faith and with a willingness to accommodate  
Page: 42  
Aboriginal interests where necessary. The standard by which the  
court will assess the efforts of the Crown must, of necessity,  
depend on the reasonableness of the Crown's position. While the  
Crown may bargain hard and has no duty to reach an agreement, it  
must be willing to make reasonable concessions based on the  
strength of the Aboriginal claim and the potentially adverse effect  
of the infringement in question. If the Crown does not make  
reasonable concessions, it is open to the court to conclude that the  
Crown is not negotiating in good faith with a willingness to  
accommodate Aboriginal interests. [emphasis in original]  
[208] The MNA accepts that there is no duty to reach an accord. Rather, it states that the Crown  
breached its obligations through the process or manner in which it terminated the negotiation. That  
is, while there is no duty to reach an agreement in negotiations, there must be a commitment to a  
meaningful process.  
[209] Both parties must commit to enter into a joint engagement in a meaningful way. While  
only the Crown bears the obligation to act honourably in a manner furthering reconciliation, it is  
clear that there exists “some reciprocal onus on Aboriginal groups to carry their end of the  
consultation [or here, negotiation]…and to try to reach some mutually satisfactory solution”: Fort  
Chipewyan at para 103; Mikisew at para 65.  
[210] Negotiations are by their nature a collaborative process. As stated in Desautel at para 88  
in relation to negotiations:  
Good faith from both parties is required. […] Reconciliation requires the Crown  
and Aboriginal people to "work together to reconcile their interests"... [emphasis  
[211] Given the requirement to work together, how each party viewed the others’ actions, and  
whether this perception was reasonable in the entirety of their dealings with one another, is  
[212] Take for example the July 2019 Letter from President Poitras to the IR Minister. This letter  
is significant because each party interprets it differently. The MNA states that the July 2019 Letter  
merely laid out in detail the need for a MCP and the MNA’s proposed approach for moving it  
forward in a legally sound and practical manner. Alberta takes the position that the letter lays out  
a new approach; one different in nature from what was being discussed during the previous  
negotiations. According to Alberta, the July 2019 Letter demonstrated the MNA’s unwillingness  
to proceed further with negotiations. That, in part, led to the Decision.  
[213] The MNA asserts that the resulting Decision offered no reasons for ceasing negotiations,  
demonstrated no consideration of any constitutional obligations imposed upon Alberta in the  
circumstances and failed to consider the five-year history of engagement between the parties. It  
further asserts that the Decision made no mention of when, or how, Alberta might re-engage with  
the MNA toward developing a new policy nor did it offer any equivalent mechanism to determine  
consultation issues.  
Page: 43  
[214] What constitutes honourable conduct will vary with the circumstances: Manitoba Métis  
(2013) at para 74. As noted by the Court in Haida, each case must be approached in light of its  
unique construct, which may evolve over time as the process of consultation continues forward  
and new facts either develop or become known: para 45. While these comments were made in  
relation to the duty to consult, in my view, they apply equally to the duty to negotiate.  
[215] The importance of considering the unique circumstances of each case was recognized by  
the Court in Haida where McLachlin CJ adopted the concept of a spectrum in analyzing the type  
and level of consultation/accommodation duties in asserted Indigenous rights claims. Where a  
claim to an asserted right is weak, a less stringent duty might be placed on the Crown compared to  
those instances in which a strong prima facie claim to an asserted right exists. McLachlin CJ wrote  
at para 45 that:  
Between these two extremes of the spectrum just described, will lie other  
situations. Every case must be approached individually. Each must also be  
approached flexibly, since the level of consultation required may change as the  
process goes on and new information comes to light. The controlling question in  
all situations is what is required to maintain the honour of the Crown and to effect  
reconciliation between the Crown and the Aboriginal peoples with respect to the  
interests at stake…[emphasis added]  
[216] While the above quote references an asserted land title claim, the idea of the spectrum  
remains helpful. In so stating, I accept the MNA’s assertion that the duty to negotiate is not limited  
to title claims nor to the negotiation of treaties. Daniels v Canada (Indian Affairs and Northern  
Development), 2016 SCC 12 (“Daniels”) speaks to this duty applying more broadly to “Aboriginal  
rights” and also provides that the duty to negotiate is context-specific: para 56.  
[217] Therefore, it is necessary to examine the Record in order to ascertain the scope of  
Alberta’s duty in this case.  
What Were the Parties Negotiating?  
[218] Alberta’s intention to deal with the MNA in a respectful, transparent and cooperative  
manner in developing the MCP are thoroughly documented in the Record. Declarations to this  
effect are found throughout the Record including in briefing notes, internal emails, the Term Sheet,  
the draft MCP Charter and draft policy proposals. A few examples of phraseology from the Record,  
as already described, include the following:  
The parties agreed to “proceed jointly” in their mutual goal of creating the  
The MNA was described as a “active”, “committed” and “stable” partner;  
The process included a “collaborative dialogue” and the MNA was the  
government’s “greatest collaborator”;  
The relationship was one in which “good faith”, “mutual respect” and  
“transparency” had to be demonstrated in order to “maintain trust”; and  
The parties were committed to working together to “promote  
Page: 44  
[219] The Crown meant to deal with the MNA in a prescribed manner. Alberta treated the MNA  
as a true “partner” in developing the MCP. It met with the MNA representatives at the Executive  
Committee level and it involved the MNA in drafting and providing input on foundational  
[220] It must also be remembered that Alberta stood to benefit from collaborating with the MNA  
in this manner. The government stated that dialogue with the MNA was important to developing  
the MCP, which would provide several stakeholders with greater certainty. [186]  
[221] The Crown agreed to enter into a process to facilitate the recognition of established Métis  
rights. Namely, the right to be consulted when Crown land management and resource development  
decisions might adversely impact the credibly-asserted rights of that group. As stated in Desautel  
at para 30:  
While the honour of the Crown looks back to this historic impact, it also looks  
forward to reconciliation between the Crown and Aboriginal peoples in an  
ongoing, "mutually respectful long-term relationship" […]  
[222] Thus, developing the MCP was to some extent, an “attempt to harmonize conflicting  
interests and move further down the path of reconciliation” in that its underlying purpose was to  
establish a process to resolve any future claims asserted by the Métis: see Haida para 49.  
[223] In this case, the desired outcome of the negotiation remained consistent and compatible;  
both parties wished to work together collaboratively in an attempt to put together a workable  
consultation policy. Other constants also existed. It was always known that the draft MCP was  
subject to Cabinet approval. It was also known that completion of the MCP was an aspirational  
goal, because Alberta already had in place a Credible Assertion Process, notwithstanding questions  
and comments were made regarding its efficacy.  
[224] In my view, it is important to bear in mind that what was being negotiated was a new  
process or approach to consultation. It was not about whether a duty to consult or accommodate  
existed on certain facts, nor was it about respecting, for example, harvesting rights in the context  
of a specific project-driven concern.  
How Close were the Parties to Finalizing the MCP?  
[225] It is also important to bear in mind how far along in the process the parties were when  
Alberta made the Decision. On this point, the parties strongly disagree.  
[226] The MNA asserts at para 205 of its written brief that:  
…the record overwhelmingly shows how close the parties came to finalizing an  
MCP. The Standards were negotiated and approved “in principle” by Cabinet; a  
draft MCP had been developed and nearly presented to Cabinet; and all  
stakeholders, including industry, municipalities, Alberta ministries and other  
Métis organizations were supportive of it. While ultimately the draft MCP was  
not brought forward for Cabinet, this was done so that stakeholders who had not  
yet seen the draft MCP could be given time to review it, not because Alberta had  
Page: 45  
any outstanding objections or because the negotiations between the Parties had  
otherwise reached an impasse.  
[227] Conversely, the Crown contends that the parties were not ad item on a number of critical  
points at the time the Decision was made. I turn now to a review of those points in contention.  
Position of Locals and other Métis Organizations  
[228] The Record demonstrates that Alberta repeatedly emphasized that its ability to proceed  
with a Regional approach to the MCP was contingent upon the MNA garnering support from its  
Locals. One of the guiding principles of the MCP Charter was that:  
Clear, sustained and demonstrated support must be garnered by the [MNA] from  
non-Settlement Métis Locals for its role in the process. [115]  
[229] The Record demonstrates that the MNA had mixed success in this regard.  
[230] While some Regional Protocol Agreements were fully executed, others were missing  
signatures from Locals. Moreover, some Locals or independent organizations were providing input  
contrary to the position taken by the MNA during the further engagement phase following the “in  
principle” approval of the Standards.  
[231] Alberta was aware that various non-settlement Métis were not in favour of representation  
through the MNA, and that some Locals took the position that even within the MNA structure, it  
was the Locals, as opposed to the Regional or provincial representatives, who should have a voice  
in consultation/accommodation agreements with government and industry. In time, Alberta  
communicated directly with 10 Locals for the purpose of developing the MCP. In the January of  
2018 update on the engagement process, it was noted that Alberta was continuing to work  
collaboratively with Métis organizations in the Province, including the MNA, Locals and other  
Métis organizations to develop the MCP. [467] For example, the ARM established a consultation  
working group whereby a representative of each organization or Local would meet with Alberta  
[232] In addition, the Region 1 President was not supportive of proposed Regional consultation  
protocols and expressly voiced this lack of support in a February 2018 resolution communicated  
to Alberta. [437] While it was subsequently reported that the Regional Protocol Agreement in  
Region 1 had been executed, it did not form part of the Record. Upon review of the Record, it  
appears as though the Region 1 President changed following the MNA’s 2018 fall election. [493]  
[233] There are numerous other examples in the Record of Locals expressing their concerns  
between October and November of 2018. [977, 1092, 1109, 1043, 1089, 1176 and 1074] By the  
end of November of 2018, Fort McKay Local #63 had dissolved its membership with the MNA in  
favour of proceeding with the Community Association as its sole representative body. This move  
appeared to be supported by a number of other Locals as confirming their ability, as rights-bearing  
entities, to elect their representatives within a Regional community. [1295]  
[234] Various Locals continued to express concerns with the Regional approach throughout the  
winter and into the spring and summer of 2019. [See, for example, 1260, 1288 and 1280]  
Page: 46  
[235] Concerns expressed by Locals were not restricted to those located within Region 1, but  
also included Regions 4 and 6. [See, for example, 1172, 933 and 1264]  
[236] According to IR, by April 11, 2019, the situation described above was demonstrative of  
“the fracture in Region 1 around representation of Métis”. [1294] IR stated that the Regional  
approach concept would “need significant discussion, especially as industry and municipalities  
have continuously stated that the regional approach will only work if all Locals are on board”.  
[1294] As such, engagement with a number of these Locals continued throughout the summer of  
2019. However, no firm resolution was reached regarding their representation and consultation  
[237] The parties were aware of ongoing litigation on the issue of authorization. Disputes before  
the court, at that time, about which entity had the authority to represent Métis communities,  
McCargar which dealt the legality of the amendments to the MNA Bylaws and Oath;  
Fort McKay Métis Community Association v Métis Nation of Alberta Association, 2019  
ABQB 892 (“FMMCA”) - where a community association and a Local sought a joint  
declaration that they were the legally authorized entity, in and around the Fort McKay area,  
for consultations with industry and the Government; and  
Métis Nation of Alberta Association Fort McMurray Local Council 1935 v Alberta, 2016  
ABQB 712 (“Local 1935”) which furthered the applicant’s ongoing effort to achieve  
recognition as the authorized representative of a Métis community which possessed  
Aboriginal rights.  
Alberta’s Position Concerning the Exclusivity of the  
[238] The Record demonstrates that Alberta worked with the MNA, even at the early stages of  
developing the MCP, because Alberta acknowledged the MNA’s role in providing Métis advocacy  
in the Province. It also acknowledged that the MNA would provide valuable information and  
insight. While Alberta viewed the MNA as a primary entity authorized to speak as a representative  
for the Métis in many communities, it did not view the MNA as the sole entity for the same. Indeed,  
the Mandate was to “begin coordinated engagement with the [MNA], Métis locals and other non-  
Settlement Métis communities to develop a [MCP]”. [emphasis added] Alberta was aware from the  
outset that there would be Métis communities or organizations that would not agree to  
representation through the MNA, as certain Locals took the position that the Regional approach  
put forward in the Standards was “paternalistic and denied Métis people autonomy”. [1078]  
[239] The MNA consistently sought a commitment from Alberta to be recognized as the sole  
entity authorized to act as the point of contact under the MCP. In my view, the MNA’s persistent  
effort to achieve such recognition significantly influenced the nature of the negotiations between  
the parties.  
[240] Examples of Alberta and the MNA’s back-and-forth communication on this issue include:  
Page: 47  
suggestions at the outset, in Fall of 2015, that Alberta build a policy solely  
with the MNA. These suggestions were put forward and rejected; [66 and  
Alberta’s comments in a March 2017 proposal, that while the MNA  
purported to represent and speak on behalf of all Métis in the Province,  
certain Locals indicated that the MNA did not represent them; [186]  
the MNA’s June of 2017 suggestion that the consultation policy be called  
the “Métis Nation Consultation Policy”. This suggestion was rejected in  
favour of IR’s decision to call it the “Métis Consultation Policy”. IR  
expressly declined to recognize the MNA as the sole representative of the  
Métis in Alberta; [754]  
certain September of 2017 meeting notes indicate that the MNA stated it  
“[did] not want Alberta to go and speak to any ‘independent’ Métis groups  
about consultation”. Alberta rejected this preference of the MNA [318];  
April 13, 2018 correspondence from President Poitras advised that  
Alberta’s ongoing engagement with other Métis organizations was  
“problematic”, and any attempt to engage with such groups for the purposes  
of consultation would be challenged by the MNA; [649 pp 8-9]  
a June 2018 MNA proposal, provided by the MNA for a “Métis Nation  
Consultation Policy”, stated, in part, that if the MNA did not support the  
proposal, the policy outline may not go to Cabinet. The proposal further  
provided that in the event of conflicting claims concerning representation,  
the MNA must be provided an opportunity to review the evidence and make  
representations. [750] These suggestions were not adopted by IR [755]; and  
an October 2018 MNA proposal that provided a draft “Métis Nation  
Consultation Policy”. [949] IR responded by providing its draft policy  
which again used the neutral language of “Métis Organizations”. [988 and  
989] Internal IR correspondence stated that “the policy is neutral in  
language in terms of stating Métis organizations it does not state the MNA  
anywhere as the policy may apply to other Métis organizations (other than  
the MNA)”. [983]  
[241] Despite Alberta’s attempts to stress that the proposed MCP was a “Government of Alberta  
Policy, not an MNA-GOA policy”, the MNA continued to assert its position that it should be the  
sole representative of the Métis under the MCP. [418] While certain views put forth by the MNA  
during the negotiations were acknowledged by Alberta (for example, the Standards state that the  
Province will consider that a Métis community may be Regional in nature), any suggestion that  
the MNA was to act as the sole voice for Alberta’s Métis people was rejected.  
[242] Despite occasions when Alberta entered into agreements with only the MNA, such as with  
the 2017 Framework Agreement and the 2019 Harvesting Agreement, Alberta consistently  
rejected the MNA’s attempts to frame the MCP as an “Alberta-MNA” agreement. Alberta  
recognized that it would be contrary to the Mandate provided by Cabinet to enter the MCP  
exclusively with the MNA. [769]  
Page: 48  
[243] Further, Alberta did not view itself as being in a position to prefer any one proposed internal  
governance structure for the non-Settlement Métis. The Record demonstrates that Alberta  
continuously stated it was not in a position to tell the Métis how they were to be represented for  
the purposes of consultation, taking the approach that “disputes within the MNA governance  
structure are not the GoA’s to resolve”. [1219 p 4] Alberta wished to maintain a neutral stance on  
matters of MNA governance and politics. [930]  
The MNA’s Position on its Bylaws and Oath of  
[244] The MNA asserts that its Bylaws and Oath authorize it to exclusively represent its Citizens  
concerning Métis rights. It also relies, in part, on the preamble of the 2017 Framework Agreement  
which acknowledges that the MNA receives its mandate to represent its Citizens though a  
registration system under which its Citizens authorize the MNA to pursue Aboriginal rights.  
[245] I agree with the Crown that the MNA’s position is overbroad.  
[246] While the Oath provides, in part, that Citizens agree to the MNA Bylaws and authorizes  
the MNA to assert any Métis rights claims on their behalf, there is no mention of exclusivity in  
this regard. Moreover, members of the Association who joined prior to the addition of the current  
form of Oath, adopted in the Fall of 2016, were not required to take this Oath.  
[247] The Bylaws apply to the Association as a whole and promote certain objectives, including  
having the MNA stand as the political representative for all the Métis in Alberta. They further  
provide that the MNA can pursue Métis rights and negotiate modern day treaty relationships with  
the Crown.  
[248] While negotiating the MCP would most likely fall within the above objectives, the Bylaws  
do not necessarily define which level of representation within the Association is responsible for  
achieving the stated objectives, which again runs contrary to any claims of exclusivity at any  
particular level. I note that pursuant to Article 13, it is the Provincial Council which:  
shall be responsible for governing the affairs of the MNA, including the  
cultural, economic, educational, political and social affairs of the Métis  
Nation (13.1);  
may exercise all powers as are permitted by the bylaws to govern the affairs  
of the Métis Nation and carry out the objectives of the Métis Nation (13.2);  
may institute and amend policies and standards for the management of  
Métis Nation affairs, provided that the same are consistent with resolutions  
approved at the Annual Assembly. (13.3)  
Article 15 of the Bylaws provides that each Local Council:  
shall govern the affairs of the Local Community (15.1); and  
Page: 49  
may institute and amend policies and standards for the management and  
affairs of the Local provided that the same are consistent with resolutions  
approved by the Provincial Council.  
[249] Finally, Article 37.1 notes that any contracts or documents requiring the Métis Nation  
signature shall be first approved by Provincial Council. Again, it is unclear if Locals entering into  
a community-based agreement would require this signature, as the exact elements of what type of  
agreement would “require the Métis Nation signature” is unclear.  
[250] On my reading, while the above-noted Bylaw objectives are objectives of the Association  
as a whole, it is not definitive as to which level of council within the Association might engage in  
measures taken toward meeting the objectives. That is, the Bylaws do not necessarily delineate  
between which level of the MNA’s internal governance structure (i.e. Provincial, Regional or  
Local) may act in a representative capacity on behalf of its members in every instance.  
[251] I acknowledge that during the MNA’s 2016 Annual General Meeting, it adopted the  
“Statement of Principles on Crown Consultation and Accommodation with Métis in Alberta”  
which provide, in part, that “the MNA – consisting as it does of a Provincial Council, Regions,  
and Locals – is the sole duly authorized representative of Alberta’s rights’ bearing Métis  
communities”. [1335 p 8] While this language is clearly more limiting with respect to  
representation, it does not clarify which level of governance within the MNA is the “sole”  
representative. Of course, Alberta Métis who are not Citizens would in no way be bound by this  
[252] While the Regional Protocol Agreements contain express language providing that all  
Citizens authorize the MNA to assert and advance their collectively held Métis rights, there again  
appears to be no language stating that any asserted rights must be dealt with exclusively within the  
structure provided for in the Regional Protocol Agreements. Moreover, as stated above, certain  
Locals did not sign the Regional Protocol Agreements while others appeared to withdraw their  
support. Article 12 of the Bylaws provided the mechanism for withdrawal.  
[253] The Standards adopted “in principle” address representation. They state that there cannot  
be overlap or competing claims of representation for the same members in a Métis community and  
that an individual cannot authorize more than one organization to represent them for the purposes  
of consultation. However, the Standards do not purport to establish ‘who’ the voice of the  
authorized representative should be. In this respect, Alberta repeatedly stated that internal  
governance structure was a matter to be established solely by the Métis people themselves. [818,  
930 and 1219] See also Enge v Canada (Indigenous and Northern Affairs), 2017 FC 932 at para  
[254] I note that in Newfoundland and Labrador v Labrador Métis Nation, 2007 NLCA 75  
(“Labrador Métis”), the Court found that members of the Labrador Métis Nation were deemed to  
know that they were authorizing the Nation to pursue certain objectives on their behalf. Labrador