Indigenous and Northern Affairs Committee on Nov. 7th, 2023

[Jason Madden]

Métis have rights because they were pre-existing. Section 35 protects only pre-existing rights. If we have those rights, we have them. You don't bestow them upon us. The ordinary legislation signed in February 2023 can't amend the Constitution.

What this is essentially doing is recognizing you as a government, but it can't create section 35 rights. Ordinary legislation can't do it. We have those rights, because we were here before Canada became Canada, and those are now constitutionally protected.

People are misrepresenting some things: “Oh, you're creating these rights.” You can't create those rights. Those rights are inherent and they flow from people being here prior to Canada becoming Canada. Those rights are constitutionally protected. What Bill C-53 does is recognize these governments in relation to their jurisdictions, citizens, etc.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Would you agree, Mr. Madden—if, at some point after this legislation passes, discussions begin about resources or lands—that there would be a needed duty to consult with those in affected treaty areas?

[Jason Madden]

Absolutely. There's no question about it. That's the law of the land. Bill C-53 doesn't modify the duty to consult set out by the Supreme Court of Canada in any way, shape or form.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

My other question is this: You said in your statement that Powley is the only case in Canada that has recognized a distinct community in an area. Are you telling me there's no other Federal Court...or that kind of thing out of Ontario, Manitoba, Saskatchewan or Alberta, recognizing a distinct community of Métis?

[Jason Madden]

I will clarify.

Powley is the only Supreme Court of Canada case recognizing a community that holds section 35 rights. It's the Supreme Court of Canada case.

Following Powley, we thought people after Sparrow negotiated with first nations, or implemented that. We've had to litigate province by province—the Goodon case in Manitoba; the Laviolette and Belhumeur cases in Saskatchewan; and the Hirsekorn case in Alberta. Those have had to be litigated. In those other cases, communities have been recognized, as well, in all those provinces.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Mr. Madden, would you provide those case laws to our clerk, so this committee can look at which communities have been recognized?

My other question is this: Besides the Powley case out of Sault Ste. Marie, are there any other distinct Métis communities that have been recognized in Ontario?

[Jason Madden]

The Ontario government has recognized seven historic communities within Ontario, in addition to Powley. Powley wasn't just about a right to go to court.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

I'm sorry, Jason. I think you misheard the question. I meant the courts. I understand the Ontario government has done that, but have the courts recognized any distinct Métis communities outside of Powley?

[Jason Madden]

No. What the courts have done with Powley is say, “Sit down, negotiate and try to figure out where those other communities are.” That's what Ontario and the MNO did for over a decade.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

When we're looking at possible amendments, do you think it's fair to ensure in the language that Bill C-53 can't grant or allow any section 35 rights? Would you think that's a fair amendment?

[Jason Madden]

That depends on how it would be worded.

I think we all know that Bill C-53, as ordinary legislation, can't change the Constitution and can't bestow section 35 rights on groups that may not have them. What Bill C-53 does is recognize governments.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

For greater certainty, we've had witnesses state that this right may lead to the affirmation of constitutional rights without that being proven.

I guess the amendment we would possibly be looking at is something that says, “For greater certainty, this does not grant or establish section 35 rights.”

Would you be okay with that?

[Jason Madden]

I would have to see the drafting, but I think the basic premise is correct. This legislation doesn't do that.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you.

[The Chair, Liberal, John Aldag]

Now we're going to Mr. Garon for two and a half minutes.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

I have another question for you, Mr. Madden. I'd like more information about the notion of Métis citizenship. How is that determined by the organizations included in the bill? What's the process? I'd also like to know how the bill will change the process for determining who is Métis and who isn't.

You have two minutes to respond. I realize that's a big challenge, but I know you can do it.

[Jason Madden]

What we're doing is not replicating the Indian Act, where someone else tells the Métis who they are.

These governments have their own systems based upon a national definition and based upon who they represent. They have objectively verifiable registries.

As I highlighted in my presentation, many of these registries have been reviewed and audited by third parties over the years to make sure that they meet the Powley criteria. Bill C-53 doesn't modify or deal with those citizenship issues. The whole point of Bill C-53 is to recognize the jurisdiction of these governments over their own citizenship, so we don't replicate the Indian Act.

It's built into the self-government agreements. It will ultimately be built into the treaties as well. It's not about Canada taking control or telling Métis people who they are. It's about respecting that these Métis governments can run their own registries and identify their own citizenship.

[Jean-Denis Garon, Bloc, Mirabel, QC]

The first nations representatives who testified before the committee challenged the legitimacy of the three Métis organizations included in the bill.

In your opinion, what reason do they have for challenging that legitimacy?

[Jason Madden]

I will go back to the legal lacuna. There have been 150 years of, for better or worse, a recognition of the legitimacy of first nations governance through the Indian Act. Their traditional governments have been usurped and truncated in some ways by the Indian Act, but at least there's a legislative base and a recognition there.

Métis haven't had that, so now when we're.... It's not that we're the new kid on the block or anything like that. It's that you're finally recognizing. It creates tension, because sometimes there are challenges with a “crab in the pot” sort of circumstance, or if you recognize one, you're taking away from others.

I don't believe that. I think that rights can coexist, like our peoples have coexisted for generations.

That being said, that's where the tension comes from. I want to highlight that it's not of our own making. This is Canada's colonial policies coming home to roost, but the answer can't be not recognizing one of Canada's distinct indigenous peoples—the Métis—in section 35.

[The Chair, Liberal, John Aldag]

I'm going to have to cut it off there.

We have resources only until 6:30 p.m., and Ms. Idlout still has two and half minutes for her questions, so we're going to squeeze that in.

Ms. Idlout, the floor is yours.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you, Mr. Chair.

Jason, I want to ask you a question. You referred to Bill C-53, stating that it replicates the agreements of the Métis of the Yukon for self-government to implement the bill.

Can you elaborate on that, please?

[Jason Madden]

Sure. It's called the Yukon First Nations Land Claim Settlement Act. There's also the Yukon First Nations Self-Government Act.

Because there are 14 first nations in the Yukon, Canada wasn't able to negotiate all of the treaties with them all at the same point in time. When the legislation was introduced in the House of Commons, only four treaties had been negotiated and signed.

What that legislation said was that it would give legal force, in effect, to these four treaties, but for the remaining 10 first nations within the Yukon, when they finish their treaties, those treaties will be adopted by order in council and moved from schedule I to schedule II.

It's the exact same model that the Métis are essentially attempting to use.

Now, there are no treaties here, but we're saying that when those treaties are reached, they will be brought into force by order in council. If there's a discussion about whether those also need to be tabled with Parliament, there are techniques to do that as well.

I just want to highlight that people are saying that this is novel or it has never been done before. Plagiarism sometimes is a form of flattery. We thought that technique worked very well for the Yukon first nations. We think it works very well for us as well.

[The Chair, Liberal, John Aldag]

Lori, you still have 30 seconds if you have any follow-up questions, but the time is almost out.

[Lori Idlout, NDP, Nunavut, NU]

[Member spoke in Inuktitut, interpreted as follows:]

Thank you. I have no further questions.

I just want to thank all of you for clarifying your opinions and your thoughts on Bill C-53. Thank you very much.

[The Chair, Liberal, John Aldag]

That was nicely said, Ms. Idlout.

I'd like to reiterate that: Thank you to all of our witnesses for joining us today. You've given us, again, a lot of rich testimony to work with as we consider this important legislation.

Colleagues, with that, we're adjourned.