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PRINCIPLES AND PARAMETERS

• •

METIS ASSOCIATION OF ALBERTA

OCTOBER 1986 PRINCIPLES & PARAMETERS OF METIS

SELF- GOVERNMENT IN ALBERTA

TABLE OF CONTENTS

I. INTRODUCTION 1

II. PRINCIPLES FOR METIS SELF- GOVERNMENT IN ALBERTA Z

ill. PARAMETERS OF METIS SELF-GOVERNMENT IN ALBERTA 8

IV. METIS PARTICIPATION IN PUBLIC INSTITUTIONS OF GOVERNMENT Z7

V. A PROCESS FOR RESOLVING METIS SELF-GOVERNING RIGHTS 30

Overlay Maps

Figure 1 Proposed Political Boundaries of Metis Regional Authorities · Figure 2. Existing Political Boundaries of Metis Representative Bodies

Figure 3 Proposed Metis Electoral Constituencies for Representation in Alberta Legislature L INTRODUCTION

On June 3, 1985, the Alberta legislature adopted "A Resolution Concerning an Amendment to the Alberta Act". Resolution 18 endorsed a commitment of the Government of Alberta to give constitutional protection to the land title of the Metis Settlements of Alberta once the Metis Betterment Act, a provincial statute, was revised to include "appropriate criteria" for Settlement membership, land allocation, and the composition of governing bodies capable of holding land. It also recognized a principle that the Metis people of Alberta should define and propose fair and democratic criteria in these matters.

In July, 1986, the Alberta Federation of Metis Settlement Associa­ tions (AFMSA) responded to Resolution 18 with the release of proposals for new provincial legislation ("By Means of Conferences and Negotiations We Ensure our Rights"). The Metis Association of Alberta (MAA) has recently informed the Province ·that it will need adequate resources and a process to involve its membership in the review and reform of the provincial legislation which affects the entire Metis population of Alberta. It should be stressed that MAA constituents off the Settle­ ments will be directly affected by the criteria and procedures relating to applications for membership and land allocation, and the adjudi­ cation of disputes in these matters. Likewise, those criteria and proce­ dures applying to disqualification and termination of membership and land tenure rights would also have a great impact on MAA membership as those individuals subject to these measures would become the responsi­ bility of the MAA.

It is not the purpose of this paper to provide a detailed response to the proposed criteria and procedures for membership and land alloca­ tion which have been advanced to date. This must await further research -2-

and analysis of the legal implications of these proposals, thorough consul­ tation of MAA members, and an exchange of views with the AFMSA and appropriate provincial ministries. What this paper intends to do is to present the principles and parameters of Metis self-government in Alberta, distilled from the work of the MAA and Metis National Council (MNC) in the constitutional process to date. In the process, it will estab­ lish a framework within which the form and substance of Metis self­ government as set out in Resolution 18 and the AFMSA proposals can best be evaluated. As well, it will identify the critical elements of self-government agreements which the MAA believes should be given constitutional protection once a self-government amendment is in place.

ll. PRINCIPLES FOR METIS SELF-GOVERNMENT IN ALBERTA

The MAA believes that the following principles should guide the establishment of Metis self-government in Alberta:

there should be legal recognition of democratic political institu­ tions established by the Metis people of Alberta;

this legal recognition should include the power of Metis political institutions to establish and amend their own internal constitu­ tions;

Metis political institutions should be vested with authority appropriate to their circumstances; and

there should be adequate resourcing of Metis political institution. - 3 -

1) Legal Recognition of Metis Political Institutions

The commitment of the Government of Alberta to revise the Metis Betterment Act to include democratic governing bodies for the manage­ ment and governance of Metis Settlements represents a starting point for the construction of Metis self-government in Alberta. However, this initiative must be expanded in nature and scope if it is to match the aspirations of the Metis population of Alberta. For one, Resolution 18 presupposes the establishment of a dependent form of government with delegated powers only and does not accommodate the need expressed by all aboriginal peoples for constitutional protection of their governing bodies and the jurisdictions of these bodies. For another, it applies only to those governing bodies which serve the small minority of the Metis population of Alberta residing on Metis Settlements.

This last concern must be underscored for the Province has thus far not shown a will to confer legal recognition, statutory or constitu­ tional, on Metis political institutions off Settlements. There has been a conceptual tendency to limit the rights of Metis, as a distinct people, to Settlement areas. Those Metis off a land base have · been viewed as citizens like any other or, at the most, as a disadvantaged minority entitled to equality of opportunity rather than self-determination. A great injustice would be committed if this view was to prevail during further discussions on Metis self-government in Alberta.

Metis people throughout Alberta have expressed a desire for greater control over their own affairs and institutions. As long as the MAA and its regional councils are relegated to the ranks of non-profit societies under the Societies Act and are forced to rely on government grants for funding, Metis people will be denied the authority and resources to exercise autonomy in the management of their affairs and institutions. Any equitable approach to resolving this long outstanding issue must - 4 -

start with the premise that all Metis have the right to establish political institutions of their own choosing while taking into account that the nature and extent of the authority being sought by Metis will vary accord­ ing to circumstance.

2) The Power to Establish and Amend Internal Constitutions

A cornerstone to the exercise of autonomy by Metis people on and off a land base is their ability to determine the internal governing structures and procedures through which powers set out in law can be exercised. Any statutory or constitutional recognition of Metis self­ government must respect the right of Metis political institutions to establish and amend their own constitutions and should provide for these constitutions or amendments thereto to be given legal force. These internal constitutions would be empowered to:

establish the composition of governing bodies;

establish qualifications and procedures applying to the election of members of governing bodies;

establish the tenure of members of governing bodies and grounds/ procedures for their removal;

establish the procedures to be adopted by governing bodies in exercising powers and carrying out duties;

set out procedures for ensuring financial accountability of the governing bodies to their constituents;

set out powers of the governing bodies selected from among - 5 -

the general classes of authorities set out in the legislation or self-government agreement establishing governing bodies;

establish criteria anci procedures for membership including procedures for adjudicating disputes;

set out the formula for amending the internal constitution.

With an ability to set and amend their own internal constitutions, Metis self-governing institutions could exercise powers in a manner consistent with Metis political culture. A major aspect of government paternalism would be removed as the decisions surrounding the form and functioning of Metis political institutions would be made by the Metis people themselves. Moreover, any changes to internal decision­ making structures and procedures would be made by the Metis according to an amending formula built into the internal constitution rather than by the provincial or federal governments through amendments to their legislation.

The self-government proposal of the AFMSA falls short of the principle enunciated in this section because of the range of internal matters which it makes subject to the ongoing legislative authority of the Province of Alberta. In fact, a large part of the Metis Settlements Act proposed by AFMSA consists of specific provisions for internal governing bodies and related rules and procedures which can be changed only by amendment to the legislation and not by the Metis Settlers themselves. Most of these matters would better fit within an internal constitution with legal force and its own amending formula enabling the Metis people themselves to bring about internal political change. An important precedent in this area is being set by federal legislation permitting the Sechelt Indian Band to move towards Indian self-govern­ ment pursuant to its own internal constitution. - 6 -

3) Variation in Authority According to Circumstances

A third guiding principle for the establishment of Metis self-govern­ ment in Alberta recognizes that the nature and extent of the jurisdictions of Metis self-governing institutions will vary according to the circum­ stances of Metis people. Metis government on an ethnically exclusive land base can be vested with legislative authority and the Metis people in this situation will be subject to the laws of that government. Where Metis people live in mixed or predominantly non-Metis communities, their self-governing institutions could also be vested with legal authority but the exercise of this authority would apply only to those Metis people who chose to opt in to the Metis political institutions.

The extent of the jurisdictions being sought by Metis political institu­ tions on and off a land base reflects their respective needs and con­ straints. The AFMSA proposals envisage Metis Settlement Councils possessing delegated legislative authority in matters largely related to local government. They do not address broader jurisdictional and service delivery areas in which Metis on and off a land base are seeking greater autonomy partially because of the limited mandate of Resolution 18 with reference to governing bodies "subject to the continuing legisla­ tive authority of the Province of Alberta". As well, the limited population and revenue base of the Settlements could not support the programs, services and institutions resulting from an exercise of broader responsibil­ ities.

The institutional forms of Metis self-government to be presented in this paper presuppose separate jurisdictions for Metis Settlement Councils and Metis political institutions to be established at the regional and provincial levels. Metis Settlement Councils would have exclusive areas of jurisdiction in most matters {especially those of a purely local nature) relative to regional and provincial Metis authorities. These - 7 -

latter bodies would assume responsibility for the provision of programs and services and the management of institutions in those areas beyond the purview of Settlement governments and as part of a larger function of political representation.

4) Resourcing of Metis Political Institutions

A devolution of authority to Metis political institutions will be meaningful only if it is accompanied by a guarantee of fiscal resources which will enable them to exercise this authority. It is imperative for Metis authorities to know whether they will have financial resources and the level of this financing if they are to properly plan and admin­ ister programs, services, and institutions on behalf of their constituents. The current emphasis of governments on deficit-reduction reinforces the need for fiscal guarantees.

One of the major aspects of the dependency which has plagued relations between aboriginal peoples and governments in is the accountability of aboriginal organizations to governments rather than to their own electorates for the expenditure of funds. This problem has manifested itself through the incessant reporting of aboriginal organi­ zations to (and their vulnerability to pressure and manipulation from) funding sources. The resourcing of Metis political institutions must be consistent with the development of democratic and accountable governing bodies and must shift accountability away from federal and provincial governments to Metis governing bodies. - 8 -

In. PARAMETERS OF METIS SELF-GOVERNMENT IN ALBERTA

1) Institutional Parameters

a) Background

The practical experience of Metis people in western Canada illus­ trates that Metis interests have best been served by representative bodies mandated to serve as the political voice of the Metis people. They have articulated Metis objectives and needs, formulated policy for dealing with governments toward the achievement of these objectives, and pressed for programs and services for socio-economic development. In cases where service delivery institutions have emerged independent of Metis political authorities, there has been a multiplicity of single purpose bodies operating without central coordination and policy direc­ tion. This has placed additional strain on limited resources and has impeded the development of common strategie~ for dealing with govern­ ment.

Practical experience has also demonstrated that policies, programs, and institutions are most effective when those responsible for their design and administration are responsible and accountable to those who are served by them. These twin factors - the need for political coordination of initiatives for Metis people and for political responsibility and accountability - have guided the thinking of the Metis people of Alberta in recent years. A province-wide, ballot-box system of voting at the community level has been introduced, with MAA members electing their local representatives on a local basis, their regional representatives on a regional basis, and their provincial executive officer at large. A balance between regional and provincial interests has been struck at the provincial level with the MAA Board consisting of regional council leaders and the provincial executive officer. - 9 -

The reorganization of the MAA through the introduction of direct election procedures and regionalization was a necessary first step toward the establishment of Metis self-government at the regional and provincial levels. It is now imperative for new Metis political institutions at _these levels to be given legal recognition, authority and guaranteed ·sources of financing. This will require a transfer of responsibilities currently held by single purpose bodies which have largely become appendages of the provincial government. Moreover, it will require the negotiation of new jurisdictions and responsibilities for Metis regional and provincial authorities.

b) Metis Regional Authorities

The most appropriate structures for the establishment of Metis self-government in Alberta beyond the jurisdictional boundaries of Metis local governments on the Settlements are regional and provincial Metis authorities, Figure 1 sets out the boundaries of the following Metis regional and urban authorities:

Athabasca Metis Authority Lesser Metis Authority Peace River Metis Authority Yellowhead Metis Authority St. Paul Metis Authority Metis Authority Southern Alberta Metis Authority

It is these regional authorities and a province-wide Alberta Metis Authority which would be established in law, Their governing structures and procedures would be included in their internal constitutions which would be ratified by special assemblies or by referenda of the Metis - 10 -

population of the region and the province. The electoral system built into internal constitutions must ensure a responsive form of representa­ tion for sectoral interests within the larger Metis community whether it be isolated communities or Metis Settlements.

Figure 1 illustrates one scheme which could be adopted, dividing each region into electoral constituencies which would elect representa­ tives to the Metis regional authority. Each of the eight Metis Settlements would form a distinct constituency for the purpose of electing representa­ tives to the regional authorities. Edmonton, which in consequence of its large Metis population and the uniqueness of their circumstances would have its own self-governing body, would also be divided into elec­ toral constituencies (not shown on the map) for the purpose of electing representatives to the Metis urban authority.

It should be emphasized that the electoral constituencies depicted in Figure 1 are based roughly on membership rather than population distribution and would have to be altered once an accurate enumeration of the Metis population is complete. Following is a proposed identifica­ tion of the numbered electoral constituencies in Figure 1 with an accom­ panying list of Metis population centres in each constituency.

Elector-al Constituency Metis Population Centres

Athabasca Metis Authority

1. Athabasca North Fort Chipewyan, Fort MacKay 2.. Athabasca South Athabasca, Calling Lake 3. Fort McMurray Fort McMurray, Anzac 4. Athabasca East Chard, Janvier, Conklin 5. Lac La Biche West Lac La Biche Mission, Plamondon - 11 -

6. Lac La Biche Lac La Biche 7. Lac La Biche East Big Bay, Owl River, Imperial Mills 8. Buffalo Lake Metis Settlement Buffalo Lake Metis Settlement 9. Kikino Metis Settlement 1 o. Lac La Biche South Elinor Lake

Lesser Slave Lake Metis Authority

1. Wabasca North Peerless Lake, Trout Lake, Loon Lake, Red Earth Creek 2.. Peavine Metis Settlement 3. Gift Lake Metis Settlement Gift Lake Metis Settlement 4. Wabasca South Wabasca-'Desmarais, Sandy Lake 5. Lesser Slave Lake West Grouard, J oussard, 6. East Prairie Metis Settlement East Prairie Metis Settlement 7. Lesser Slave Lake Centre Canyon Creek, Kinuso, Faust 8. Lesser Slave Lake East Slave Lake, Smith

Peace River Metis Authority

1. Peace River North High Level, Fort Vermilion, La Crete, Keg River 2.. Paddle Prairie Metis Settlement Paddle Prairie Metis Settlement 3. Pea:ce River South Fairview, Spirit River, Hines Creek, Rycroft 4. Peace River Center Peace River, Manning, Grimshaw, Dixonville 5. Cadotte Lake, Little Buffalo 6. Grande Prairie, Beaverlodge, Grovedale 7. Smoky River Valleyview, McLennan - lZ-

St. Paul Metis Authority

1. Cold Lake Cold Lake 2.. Bonnyville Bonnyville 3. Grand Centre Grand Centre 4. St. Paul St. Paul, Elk Point 5. Elizabeth Metis Settlement Elizabeth Metis Settlement 6. Fishing Lake Metis Settlement Fishing Lake Metis Settlement 7. Lloydminster, Minburn, Vermillion

Yellowhead Metis Authority

1. Grande Cache Grande Cache, Nose Creek 2.. Hinton Hinton, Entrance, Robb 3. Edson Edson, Marlboro, Long Lake 4. Whitecourt, Fox Creek, Blue Ridge, Fort Assiniboine 5. Lac Ste. Anne Gunn, Alberta Beach, , Wabamun, Lac Ste. Anne 6. St. Albert St. Albert, Calahoo, Villeneuve, Morinville 7. Yellowhead East , Camrose,

Southern Alberta Metis Authority

1. Rocky Mountain House Rocky Mountain House, Sundre, Olds 2.. Red Deer-Drumheller Red Deer, Innisfail, Big Valley, Drumheller, Oyen 3. & 4. City District Calgary 5. Macleod Turner Valley, Black Diamond, Claresholm, Pincher Creek, Fort Macleod 6. Lethbridge, Taber 7. Medicine Hat - 13 -

Representatives elected through these local constituencies to the regional authority could select an executive council from among them­ selves to implement the bylaws of the regional authority. Alternatively, part of the regional authority can be elected at large by all electors within the region to form the executive branch. The executive council would serve as a cabinet with its members occupying various portfolios in the areas of finance, economic development, education and training, social affairs, cultural affairs, etc.. They would set operational policies and procedures for programs, services, and institutions managed by the regional authority.

Metis regional authorities would be active in those areas where political representation and service delivery are most needed and can prove to be most effective at the regional level. A case in point is the disputed Grouard vocational school which could be the responsibility of the education division of the Lesser Slave Lake Metis Authority. · Likewise, the St. Paul Metis Authority could be empowered to negotiate resource-use agre_ements with resource companies to ensure Metis train­ ing, employment and equity participation in resource projects. Or, the social affairs division of the Edmonton Metis Authority could be empowered by Authority bylaw to set its own guidelines and procedures for child welfare and child care facilities.

c) Alberta Metis Authority

Practical experience has also demonstrated the need for Metis self-governing institutions to be organized within the context of the Canadian federal system (and its division of powers between federal and provincial governments) if they are to be effective in political repre­ sentation. This is especially the case at the provincial level since provin­ cial governments have jurisdiction over most of the matters in which the Metis people are seeking to exercise autonomy. An Alberta Metis - 14 -

Authority must be capable of articulating the broad objectives of the Alberta Metis, of reconciling internal differences and building consensus, and possessing the expertise to negotiate effectively with government.

The Alberta Metis Authority would also assume responsibility for the design and administration of those programs, services and institutions which are best offered at the provincial level. These could include an education and training institute, cultural institutions, and financial institutions, amongst others. Regional interests could be accommodated through the establishment of branch facilities in some cases or, in areas such as post-secondary education and training, through candidate selec­ tion.

In order to maintain a proper balance between the regional and provincial interests of Alberta's Metis, the Alberta Metis Authority would consist of representatives of . the Metis regional and urban Metis authorities as well as a number of provincial executive officers elected at large by the entire Metis electorate of the province. The latter would constitute the executive council or cabinet of the Alberta Metis Authority and would implement the policies and bylaws of the Authority through their respective portfolios in areas of finance, justice, economic policy, social policy, cultural policy, and intergovernmental affairs. The Alberta Metis Authority would also cooperate with its counterparts in other provinces within the Metis homeland in establishing a national body to represent the Metis people on national and international issues and to lobby the federal government in areas of federal jurisdiction on behalf of its provincial membership.

The proposed political institutions described above build upon and enhance existing Metis representative bodies in Alberta. Figure 2 depicts the boundaries of these existing bodies, the regional councils of the MAA (boundaries are approximate) and the Settlement Councils of the - 15 -

AFMSA. With the attainment of self-governing an-angements, the MAA regional councils would evolve into the Metis regional authorities depicted in Figure 1. The Metis Settlements would retain their distinct governing bodies (Metis Settlement Councils and their proposed General Council) with their own areas of jurisdiction but would also have the opportunity to participate in regional authorities through their own electoral constitu­ encies in political and program matters lying beyond the purview of their councils.

It should be emphasized that the inclusion of Metis Settlements in these self-government proposals would require working out an-ange­ ments over a period of time. As an interim measure, Metis Settlement Councils could collaborate with regional authorities in establishing and managing programs, services and institutions at the regional level without the formal participation of the Settlements in the internal affairs and elections of regional authorities. At the same time, the Settlements would retain the right to opt in to the regional authorities as distinct electoral constituencies when desired.

d) Metis Public Service

The success of Metis political institutions will depend on their ability to attract skilled and competent Metis people to the administration of regional and provincial authorities and their service delivery institu­ tions and agencies. One of the major drawbacks to the affirmative action hiring programs of governments has been the tendency to divert qualified aboriginal people away from their representative organizations into government. Considering the lack of policy-making power and resources of aboriginal organizations, it is not surprising that many talented Metis have opted for careers in the public or private sector.

If Metis self-governing bodies were legally empowered and properly financed to set and implement policies, programs, and services for their - 16 -

constituents, it is probable that many Metis in the public and private sector would welcome an opportunity to embark on challenging careers in a Metis public service. As an interim measure, a program of second­ ment could be put in place to staff the administration of Metis regional and provincial authorities where positions cannot be filled by existing personnel. Once a bureaucratic organization, division of labor, and financial policies and procedures are in place and functioning smoothly, the seconded Metis personnel could be absorbed permanently into the Metis public service. There will also be a need to establish a province­ wide training institute along the lines of the Gabriel Dumont Institute of Saskatchewan which can train the Metis administrators and profes­ sionals who will be required for future work with Metis self-governing institutions.

e) Membership

An essential element of the internal constitutions of Metis political institutions should be the power to determine who can participate in the affairs of these institutions. Along with this power to determine membership comes the responsibility to ensure that the criteria used to determine membership are as uniform as possible throughout the Metis homeland and the procedures used to adjudicate disputes over membership are equitable. Uniformity is required if Metis are to be able to move from one part of the province to another or from one province to another and be treated equally by the respective Metis political institutions. Equitable treatment of individuals whose applica­ tions for membership are rejected requires the right of appeal to judicial bodies independent of Metis political authorities.

The membership code to be set by Metis political institutions will comprise identification and registration criteria. Through the Metis - 17 -

National Council, the Metis people of western Canada have identified themselves as a distinct aboriginal people and nation, with a common history, culture and political will. MN C proposals for criteria to be used in compiling a Metis registry (those Metis entitled to participate in Metis self-governing institution) have centred on self-declaration and community acceptance or (in cases of individuals not associated with Metis communities) proof of Metis ancestry. The MNC has also stressed the right of appeal and related procedures for those individuals whose applications have been turned down.

The membership criteria proposed for new provincial legislation by the AFMSA include identification and registration criteria which are generally consistent with those of the MNC and MAA. However, the procedures set out for resolving membership disputes at the Settle­ ment level are deficient as the appeals body, an Elders Committee on each Settlement, is advisory only and cannot overturn an application rejection by the Settlement Council. The proposal for arbitration tribu­ nals as the highest court of appeals is also deficient as the General Council (Okimawiwin), which appoints the tie-breaking Chairperson of a three-person tribunal in a dispute between an individual applicant and a Settlement Council, would include the members of the Settlement Council and, hence, one of the litigants in the dispute. In effect, whereas the Elders Committee would be an independent but powerless appeals body, the arbitration tribunals would be a partisan body with the power to make binding decisions.

In view of the obvious impact which membership admissions would have on Metis Settlements or any other Metis communities, it is appro­ priate for their immediate governing bodies, whether they be Settlement Councils or regional authorities, to make the initial decision on member­ ship applications and to establish their own independent and impartial appeals tribunals to resolve disputes at the community or regional level. - 18 -

However, the legal rights of Alberta Metis individuals as well as their right to mobility in and out of Metis political institutions throughout the Metis homeland demand ultimate protection by a higher appeals body at the provincial level which will ensure uniformity in membership criteria and procedures throughout the province and impartiality in appeals decisions. This higher appeals body should take the form of an Alberta Metis Tribunal. The Tribunal would be established at the provincial level and would adjudicate matters such as membership, child welfare, financial administration and labor relations which lie within the jurisdiction of Metis governing bodies. For membership cases involving the Metis Settlements, a special panel of the Alberta Metis Tribunal consisting of one representative from the Settlements, one from the Metis off Settlements, and a mutually acceptable chairperson would hear the appeal.

Z) Jurisdictional Parameters

a) The Need for Devolution and Entrenchment

The critical problems and obstacles encountered by Metis people largely result from a lack of power. Since the l 930's in Alberta, Metis people have tried to confront this condition by organizing themselves into a political association to pursue common objectives and strategies. In recent years, Metis people across the prairies have prepared themselves for self-government by adopting province-wide ballot-box systems of voting designed to encourage mass participation in democratic political institutions. They have given their political associations a broad mandate to pursue the authority and resources which are required for Metis people to manage their own affairs and institutions. - 19 -

To date, governments have been reluctant to cede power and re­ sources to Metis people. Instead, they have tried to accommodate Metis associations as delivery agents for federal and provincial programs and services. Metis people have had negligible input into the policies governing service delivery and this has exacerbated dependency. The elected representatives of the Metis people are continually frustrated in their inability to fulfill the mandate set by their electors. In order to overcome the dependency which has characterized the relationship between Metis people and governments in Canada, a condition which is deplored by the Metis and governments alike, a devolution of authority over Metis affairs and institutions is clearly needed.

The experience of the Metis people in the Canadian federal system also demonstrates a fundamental reason for devolution to be accompanied by an entrenchment of Metis self-governing institutions and their authori­ ties. There is the omnipresent threat that powers lacking constitutional protection can be unilaterally taken away by government. Unilateral amendments to Alberta's Metis legislation as well as the Province's unilateral termination of four Metis Settlements (Wolf Lake, Touchwood Lake, Co~d Lake, and Marlboro) in the past have impact~d adversely on the Metis population in Alberta and eroded their rights. With changes iri the government, there is a change in priorities and commitments which can militate against those Metis self-governing institutions depend­ ent on government policy and legislation for their legal existence and financing. Only a constitutional guarantee can ensure political stability and continuity in the proper planning and administration of Metis govern­ ing bodies and service delivery.

b) JuriaclicticmB of Metia Political Jnstituticms

Resolution 18 envisages the delegation of legislative authority from the Alberta government to Metis Settlement Councils through - 20 -

provincial legislation. In contrast to this delegation of powers which could be unilaterally terminated by the delegating authority, the Metis National Council, together with a significant number of participants in the Section 37 constitutional process, has favored an approach giving constitutional protection to aboriginal political institutions and their jurisdictions. This approach is based on a constitutional amendment recognizing a right of aboriginal peoples to self-government as set out in agreements which are ratified by Parliament and the legislature of the affected province.

Pursuant to this approach, the powers and responsibilities of Metis political institutions in Alberta could be worked out through negotiated self-government agreements which could be entrenched following ratifica­ tion by the Alberta Legislature and Parliament. Self-government agree­ ments would then be implemented through enabling legislation which would set out the areas in which land-based Metis local governments and Metis regional and provincial authorities could exercise legislative and administrative powers. These powers would be in-evocable and could be altered only through an amendment to the self-government agreement by mutual consent of signatories. As the Province bas jurisdic­ tion in most of the areas where Metis seek autonomy, it would be incum­ bent on the Alberta government to take a lead role in negotiating self­ government agreements and implementing them through enabling legisla­ tion.

A precedent for the legal regime under which Metis regional and provincial authorities would function bas been aet by denominational schools in provinces where minority :religion education rights have been entrenched. Governments in these provinces . have been required to enact legislation providing for denominational schools and setting out the powers of their boards. These powers are extensive including the setting of policies and procedures, responsibility for physical infrastruc- - Zl -

ture, the setting of school fees and school taxes (which are collected by municipal governments), the hiring and firing of staff, and the planning, design, and delivery of education programs subject to general standards and regulations which the provincial government applies to all schools in the province. Likewise, the entrenchment of Metis self-governing rights in a self-government agreement would require the federal and provincial governments to enact enabling legislation providing for Metis self-governing bodies and their powers and responsibilities. The latter would include (for regional and provincial authorities) the power to enact bylaws establishing policies and procedures which would govern the design, administration and delivery of programs and services subject to general standards and regulations applying to similar services delivered by government.

c) Land Base

Aboriginal peoples across Canada have demonstrated the special relationship which they have with the land and its natural resources. They have given strong mandates to their political organizations to protect this special relationship which is threatened by incursions of government and resource corporations. They have also turned to their organizations and governments to enhance this special relationship through the negotiation of terms under which aboriginal peoples can participate in the benefits of development based on balancing the needs of man with the needs of the environment.

The Metis Association of Alberta was founded in 1932 with the establishment of a Metis land base as its main objective. Its organizing, lobbying and negotiating campaign culminated in the formation of the Metis Settlements in the l 940's. Since that time, the land tenure of the Metis majority residing off the Settlements has been placed in jeop- - 2.2 -

ardy by arbitrary actions by government and encroachment by resource corporations. The termination of three Metis Settlement areas in north­ eastern Alberta and the Marlboro Settlement area in western Alberta has deprived a significant number of MAA constituents of an opportunity to participate in the economic development of these resource-rich re­ gions. In other regions of the province, the Metis people have been displaced from their traditional homes and are clinging to a precarious existence on the fringe of development.

It is not reasonable to expect the land needs of the Alberta Metis to be satisfied by existing Metis Settlements. Metis people naturally want a land base near their communities, most of which are located far from Settlements. In addition, many would like to participate in a form of land tenure and utilization different from that which is prac­ tised on the Settlements. In many hinterland communities, Metis would like to reside where they are but to have access to nearby lands which they could use as a base for economic development.

One of the main functions of Metis regional authorities will be to negotiate a land base and its form of tenure, utilization and allocation, on behalf of those Metis without land. These an-angements can be incor­ porated into self-government agreements. In view of the AFMSA's proposal to make provision for the creation of new Settlements in new provincial legislation (subject to a petition being signed by 50 adult Metis in the general area of a proposed Settlement and the support of Okimawiwin), it makes sense for regional authorities to establish Land Planning Commissions to determine how new lands can be obtained and used. As in the case of the special panel of the proposed provin­ cial Metis judiciary which would hear Settlement membership . appeals, the Land Planning Commissions would comprise one representative from the Settlements, one from off the Settlements, and a mutually acceptable chairperson. - Z3 -

3) Fiacal Parameters

a) Facton

As noted at the outset of this paper, any devolution of authority, whether it be delegated or entrenched, lacks meaning if it is ·not accom­ panied by adequate fiscal resources which will allow Metis political institutions to exercise this authority. Guarantees of adequate resourcing are imperative for continuity in the proper planning and administra­ tion of programs and services by Metis authorities and in their representa­ tive activities. In keeping with the democratic and responsible nature of Metis political authorities set out in this paper, fiscal guarantees will also contribute to Metis leadership becoming fully accountable to their electorate rather than to federal and provincial governments for the expenditure of funds, thus phasing out a major aspect of the dependency relationship between Metis people and the state.

The most appropriate sources of financing for Metis political institu­ tions would be intergovernmental transfer payments and resource rev­ enues. If Metis political institutions are to fit as distin~ and autonomous entitities within Canadian federalism, it is only appropriate for them to participate in fiscal federalism and intergovernmental transfer pay­ ments. In this way, part of public revenues will be reserved for the Metis people represented and serviced by these governing bodies. This approach to financing would take into account the primary role of the federal government in making transfer payments as well as the sweep of federal spending power in general.

The Metis were aboriginal inhabitants and original settlers of the Province of Alberta at the time of its birth. Their special relationship with the land has been recognized by the Province through its Metis land legislation and its cU?Tent initiative to protect the land title of - 24-

Metis Settlements. With the establishment of Metis · self-governing institutions in Alberta, it is only fair for them to access resource revenues generated on Metis lands and use these revenues to promote the long-term social and economic development of Metis people.

b) Sources of Financing

(i) Unconditional Transfer Payments

The equalization payments system affirmed in the Constitution Act, 1982., Part m, represents the most viable approach to the "block funding" required by Metis political institutions to ensure predictable revenues which can be used according to their priorities and for which they would be accountable to their own electors. Its purpose is to correct the fiscal imbalance. existing among provincial governments, a fiscal imbalance which would also exist amotlg aboriginal governments as well as between aboriginal governments and provincial governments. However, the existing system cannot be literally adapted to aboriginal self-governing institutions for a number of reasons. For one, equalization payments are transfen-ed by the federal government to "have not" prov­ inces to ensure that the provinces have sufficient revenues to provide comparable levels of services at comparable levels of taxation, a standard resting on tax yield which is inapplicable to aboriginal governments as long as aboriginal income levels are so low and which is particularly inapplicable to those self-governing institutions (such as the regional and provincial authorities set out in this paper) which would not have tax-collecting powers. For another, the equalization payments formula fails to account for the variation in costs of services (which are often higher in hinterland regions inhabited by aboriginal peoples than in south­ ern Canada) and special needs such as those of the aboriginal peoples. - 2.5 -

A number of participants in the constitutional discussions on abori­ ginal self-government (including the MNC) have taken these factors into account in voicing support for a constitutional amendment which would apply the equalization principle embodied in Section 36 of the Constitution Act to aboriginal self-government. This amendment would commit the federal government to the transfer of equalization payments to aboriginal self-governing institutions to ensure they had sufficient revenues to provide services comparable to those provided by federal and provincial governments but adapted to the special needs and circum­ stances of aboriginal peoples. An amendment of this nature would provide accountable Metis political institutions in Alberta with a direct and reliable form of block funding which they could spend in their own priority areas. It would also represent an ideal opportunity for equalization payments to be applied to the benefit of Albertans. An alternative approach would have both federal and provincial governments make constitutional commitments to unconditional transfer payments for aboriginal self-governing institutions.

(ii) Per Capita Transfer Payments

Another source of financing appropriate to accountable Metis poli­ tical institutions would be transfer payments on a per capita member basis for specific purposes and within an objective framework agreed to with the financing authority, whether federal or provincial government. A precedent and possible mechanism for these an-angements could be the Established Programs Financing Act by which the federal government makes per capita transfer payments to the provincial governments to share the cost of social services. While federal per capita payments to Metis political institutions could be accomplished through its EPF system, similar arrangements could govern Alberta transfer paymetns for purposes agreed to by the Metis and the Province. - 26 -

(iii) Reaoarce ReYenues

The Province of Alberta has set an important precedent in conserving part of its non-renewable resource revenue as an insurance policy for the future. If Metis political institutions are to design and implement long-term strategies for economic development, they _ will require a capital base beyond the financing of their administration and service delivery operations meeting the immediate needs of their constituents. A heritage fund created for the benefit of the Metis population of Alberta from ?:\On-renewable resource revenues generated on Metis lands would ensure that part of the wealth derived from the sale of natural resources accrues to the people who traditionally used and occupied the land and opened it for settlement.

Part of this fund would be used to capitalize Metis financial institu­ tions and economic development corporations. These institutions would provide financial, business development, and marketing services to Metis communities and entrepreneurs establishing or expanding directly productive enterprises. Another part would be reserved for profitable investments to safeguard the future of the fund.

c) A Fiscal Regime

With the viability of Metis political institutions depending on ade­ quate and guaranteed resourcing, it is obvious that fiscal provisions must form an integral part of self-government agreements. While the agreements must include financing commitments for the institutions and their core service delivery operations, it would be erroneous to include detailed financing arrangements for specific projects and pro­ grams (in areas such as community and economic development or recrea­ tion) which are "start-up" or ad-hoc in nature and don't require guarantees - Z7 -

of long-term financing for their success. Therefore, it is important to distinguish between financing agreements in ·self-government agree­ ments which could be altered only through an amendment to the agree­ ment and those funding agreements which could be negotiated outside the agreement.

An agreement on Metis self-government in Alberta would provide for the "block" funding of the institutional apparatus of Metis governing bodies. This would require unconditional transfer payments which could best be met by equalization payments. The agreement and sectoral sub-agreements would also provide for per capita payments by provincial and federal governments (the latter, perhaps, through its EPF legislation) for designated ongoing programs in areas such as education and training, housing, and social services. The agreement could also provide for the Metis resource revenues fund proposed in this section. "Project funding agreements" would be negotiated outside the self-government agreements for "start-up" and other short-term specific projects.

IV. MEnS PARTICIPATION IN PUBUC INSTITUTIONS OF GOVERNMENT

a) Metis Representation in the Alberta Legislature

With the attainment of self-government an-angements as set out in this paper, the Metis people of Alberta will still be strongly affected by the decisions of legislative assemblies. This is especially the case at the provincial level since Metis political institutions would receive much of their authority through negotiated agreement with the provin­ cial government. In the past, Metis people have not been able to influence - 28 -

the election of candidates to the provincial legislature (or Parliament) as a result of their population distribution and sense of alienation. Guar­ anteed Metis representation in provincial and national legislatures has · been a long-standing aspiration of the Metis people in Alberta and has been voiced by the MAA and AFMSA. It would be most appropriate for Alberta, with its unique relationship with Metis people, to become the first province to guarantee Metis representation in its legislative assembly.

It should be stressed that guaranteed Metis representation in the Alberta legislature is no substitute for Metis self-governing institutions. Each responds to a particular need of the Metis people; the first involving the Metis in the decision-making process of the state; the second provid­ ing the Metis with a degree of autonomy to manage their own affairs and institutions. If Metis representatives are to be responsible to their electorate in these respective spheres, it makes sense for these two forms of political representation to be kept independent of each other. This would favor direct election of Metis representatives to the Alberta legislature by the Metis people of Alberta rather than their indirect election by the representatives of Metis self-governing institutions.

b) The Metis Electoral System

The introduction of a direct election system for Metis representation in the Alberta legislature would entail the establishment of Metis seats, electoral constituencies and a Metis electoral role. The number of Metis seats in the provincial legislature would be roughly in proportion to the Metis population of Alberta, taking into account the special demo­ graphic features of the Metis such as their concentration in the northern half of the province and in non-urban areas which are generally over­ represented in legislative assemblies. Accordingly, three seats would - 29 -

be allocated for the Metis, with this figure to be adjusted once an accur­ ate enumeration of Alberta's Metis population is complete.

Figure 3 depicts the three Metis electoral constituencies which would be created for the purpose of electing Metis representatives to the Alberta legislature, Their geographical bowidaries and electorate would overlap those of Metis self-governing institutions to the extent that each Metis provincial electoral constituency would take in two of the Metis regional authorities. This would work as much as possible tl!>wards giving the same region representation through the provincial legislature and a Metis regional authority.

Metis electoral rolls would be compiled within the Metis provincial electoral constituencies. Those seeking to register to vote in these constituencies would have to meet normal electoral qualifications (age, citizenship, residency) as well the membership criteria set by Metis political institutions. In keeping with the fwidamental principle of "one person, one vote" and the rights of Metis people based on their ancestry as well as their Canadian citizenship, Metis people would be entitled to register on a Metis electoral roll or the general electoral roll, but not both.

c) Alberta Act Amendment

The principle and substance of Metis representation in the Alberta legislature should be given constitutional protection through an amend­ ment to the Alberta Act. The Act itself would provide for distinct Metis representation in the legislative assembly with the number of seats to be set at three witil an accurate enumeration of the Metis population is completed and would identify the electoral qualifications as set out above. Metis electoral constituencies would be defined in a schedule to the Act. - 30 -

V. A PROCESS FOR RESOLVING METIS SELF-GOVERNING RIGHTS

In a letter to the MAA on September 3, 1986, Premier Getty stated Alberta's willingness to consider a constitutional amendment on self­ government once the definition and implications are better understood. In this · regard, he proposed joint discussions involving the MAA and the Alberta government toward assessing the definition and possible implications of Metis self-government in Alberta. These discussions would focus on the "elements of local goveniment" and program issues within provincial jurisdiction. While the discUS5ions would be primarily bilateral in scope, the Premier P:1:'.0posed federal participation in the discussion of some issues such as employment training and economic development.

With the door kept open to a constitutional amendment and entrenched agreements in the future, the MAA sees merit in practical discussions on the definition and implications of Metis self-government in Alberta which would facilitate Alberta's support for the amendment. A formal process is required to develop practical an-angements for the management of institutions, programs and services by M~tis governing bodies. This should take the form of a frame-work agreement providing for the development of sub-agreements through which the roles and requirements of Metis governing bodies and their participation in the design, administration and delivery of programs and services could be worked out on a sectoral basis and within a specified time frame. The framework agreement should also provide for a consultative mechan­ ism - preferably a joint committee of ministers and Metis leadership - to ensure an ongoing exchange of positions which is imperative for consensus to be reached in various areas of public policy.

In keeping with the focus on the roles and requirements of Metis governing bodies, the framework agreement also should include the following agenda: - 31 -

a) infrastructure of Metis authorities (human, technical, and physical resources);

b) education and training, institutions and authorities;

c) economic development, institutions and authorities;

d) land use and resource development;

e) social services, institutions and authorities;

f) resourcing Metis authorities.

The MAA shares the view of the Premier that practical discussions can lead to more meaningful progress. It seeks to work out the an-ange­ ments for Metis self-governing institutions through sub-agreements based on the aspirations and concrete needs of Metis communities. It believes that the common elements of these sub-agreements can be pulled together into a self-government agreement which could be given constitutional protection. Pursuant to the principles and parameters set out above, this self-government agreement should include:

the recognition of the democratic self-governing bodies identi­ fied in this paper;

the right of these self-governing bodies to set and amend their internal constitutions which will have legal force;

an identification of the jurisdictions of Metis self-governing bodies; - 32 -

a provision for adequate resourcing of Metis self- governing bodies.

It is on the basjs of these sub-agreements and the resultant self­ government agreement that the MA A will seek the support of the Prov­ ince of Alberta. for the constitutional amendment on self-government, inciuding a commitment to negotiate the agreement. • II t'I • f " • I I r ' ' .

PRI • ... r-·-· i 2 :, ..... -...... ·-.... ·-·-,.-·. C> . J u I I I I I 5 -~.- :t I 3 I iI l.1... .., . SLJ i-·-·-·-. .. . -~ l ;' / ..,.,- .. ( ...... ~ . i 1 C ---- (-~ Ll ,(:1 j .. ---~,._, .. I s~----...... -·-·-, .. !--, - · 8 7 ~-., ! 7 . r-· I 6 \, "'V l n >·, SP I • • -r-, l ; i r-·-r' 6 " I . ! 5 I A 7 , J l5" :,,.r,_. I 7 i 3 ~ I ,-J I \_1.... -., SA J r-·' FIGURE 1 '-·""'1 2 Proposed Political Boundaries J A-Athabasca Metis Authority ---·, . ,._ ,tJ:r '-·"-· rr~- PR-Peace River Metis Authority ,. .., • --1~1.... ,_. .i'--t..., SL-Slave Lake Metis Authority pr t,• ",·-. SP-St. Paul Metis Authority ; I 6 I."' E-Edmonton Metis Authority l. "'·, 7 Y - Y ellowbead Met is Authority 5 L-.. ~- Alberta Metis Authority ,; i SA-Southern <._, i . 1, I -, • f - ,.. • ' ..... t ' ' .. . 1 C' " • f S

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FIGURE 2 Existing Political Boundaries

- Regional Councils (Metis Associacion of Alberta) == Metis Settlement Councils (Federation of Metis Settlements) I °' 0 Ill ' M ., I ' ,, ••. ,o. , ,,

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..% ·--, .. .. '1 .. Utikuma L. .. ct? .. • .. ~- ..

~cLaBiche n :------l ' % r·-- - . -·-' Cold (-. _; ) /" . ...·- - , •.._._-Li-. I ·---J· I l I...... ~\ z ,-. r-J .-' I jlI .,._ • __,,•'\, !I __ J,. J ·-.

FIGURE3 Proposed Metis Electoral Constituencies for Representation in Alberta Legislature