The Right to Be Heard: Representative Authority as a Requirement in Enforcing Métis Consultation

Abstract

The challenges that non-settlement Métis communities continue to face when attempting to enforce the duty to consult are reflected in the 2016 Alberta Court of Queen’s Bench Fort Chipewyan decision. In Fort Chipewyan, the Court appeared to require representative authority in order to trigger the duty to consult, effectively adding a new step to the Haida test for Aboriginal consultation. This creates a unique burden for non-settlement Métis communities in Alberta, in part because their governance systems are not statutorily recognized in Canadian statute. Nevertheless, a representative authority requirement, if interpreted purposively and in accordance with Indigenous principles of good governance, is justified by the Honour of the Crown. The Métis Nation of Ontario’s approach to consultation governance provides suggestions for governance reforms that could be undertaken by Alberta Métis to more effectively enforce the duty to consult.