Manitoba Métis Self-Government Recognition and Implementation Agreement

Whereas:

1. Canada’s historical relationships with Indigenous peoples have been steeped in colonialism, and successive governments have failed to acknowledge and respect the inherent rights of Indigenous peoples, including their rights in relation to land, their distinct governments, their customary laws and traditions, and their unique cultures;
2. For over two centuries the Manitoba Métis Community, a part of the Métis Nation, has exercised its self-determination and self-government by establishing governance structures, making and enforcing its laws, and following its traditions and customs, and it continues to do so today;
3. One of the earliest manifestations of the self-determination and self-government of the Manitoba Métis Community was its development of the Law of the Hunt which governed harvesting by Métis individuals, and whose modern expression lies in the Métis Laws of the Harvest now adopted and administered by the MMF;
4. The Manitoba Métis Community has consistently asserted and protected its rights and identity as a self-governing people through the 1816 Battle of Seven Oaks – also known to the Métis as the Victory of the Frog Plain or la Victoire de la Grenouillère – the 1816 unveiling of the Métis Nation Flag, the 1849 Sayer Trial, the 1869 Red River Resistance, its establishment of the Provisional Government in 1869 and Legislative Assembly of Assiniboia in 1870, the 1885 Battle of Batoche, and in recent times, through the formation of the Manitoba Métis Federation and its litigation of several court cases, including Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 ("MMF v. Canada");
5. In 1870 the Manitoba Métis Community became the founder of Manitoba and Canada’s negotiating partner in Confederation and, after governing their province peacefully, they then faced a Reign of Terror resulting in many Manitoba Métis people being widely dispersed in search of peace and security;
6. Canada recognizes and respects the Manitoba Métis Community’s unique history, traditions, culture, and rights as an Indigenous people as well as its important role in the history and development of Western Canada;
7. The right to self-determination is recognized in the United Nations Declaration on the Rights of Indigenous Peoples, and the inherent right to self-government is recognized and affirmed by section 35 and protected by section 25 of the Constitution Act, 1982;
8. In MMF v. Canada, the Supreme Court of Canada:
   1. recognized that the MMF’s claim under section 31 of the Manitoba Act, 1870 was a "collective claim for declaratory relief for the purposes of reconciliation between the descendants of the Métis people of the Red River Valley and Canada",
   2. granted the MMF standing, recognizing that the MMF is "the body representing the collective Métis interest" in respect of the "promise made" to the Métis people in section 31 of the Manitoba Act, 1870,
   3. held that "[t]he honour of the Crown required the Crown to interpret s. 31 in a purposive manner and to diligently pursue fulfillment of the purposes of the obligation", and that "this was not done" as "the implementation was ineffectual and inequitable",
   4. declared that "the federal Crown failed to implement the land grant provision set out in section 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown", and
   5. stated that "the unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import";
9. The MMF is the recognized government of the Manitoba Métis Community, is mandated to deal with the Manitoba Métis Community’s section 35 rights under the Constitution Act, 1982, and represents the beneficiaries of the Supreme Court of Canada’s declaration in MMF v. Canada in respect of the promise made in section 31 of the Manitoba Act, 1870;
10. Canada required the MMF to incorporate MMF Inc. in order to facilitate funding arrangements and the establishment of intergovernmental relationships;
11. The MMF continues to take measures towards the preservation, promotion and development of Métis culture and language;
12. Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples, particularly relevant provisions of which include:
    1. Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development,
    2. Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions, and
    3. Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State;
13. Canada has adopted a statement of Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples as the foundation for transforming its relationship with Indigenous peoples, including in particular the recognition that "all relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government";
14. Parliament has enacted legislation affirming the right to self-determination of Indigenous peoples, including the inherent right of self-government;
15. Canada and the MMF signed the November 15, 2016 Framework Agreement for Advancing Reconciliation (the "Framework Agreement"), the September 22, 2018 Mutual Understanding concerning a three-part plan to advance reconciliation, and the December 5, 2018 Manitoba Metis Federation Inc. Interim Fiscal Financing Agreement;
16. A purpose of the Negotiation Process agreed to in the Framework Agreement is to arrive at a shared solution that advances reconciliation between the Parties consistent with the purpose of section 35 of the Constitution Act, 1982 and the Supreme Court of Canada's decision in MMF v. Canada;
17. The Parties wish to enter into an Incremental Agreement under section 4.5.1 of the Framework Agreement that recognizes the role, functions, and jurisdictions of the MMF, including its relationship with Canada;
18. The Parties have made substantial progress on negotiating a Treaty to reflect this Agreement, which Treaty, when finalized, ratified and approved by the MMF and Parliament, will have the force of law and will be a treaty within the meaning of sections 25 and 35 of the Constitution Act, 1982; and
19. With this Agreement the Parties confirm their commitment to a collaborative process to advance reconciliation as well as renew and enhance their nation-to-nation, government-to-government relationship based on the recognition, affirmation, and implementation of rights, as well as respect, cooperation, and partnership.

Now therefore in consideration of their mutual covenants the Parties agree as follows:

Definitions

1. In this Agreement:

"Aboriginal" and "Indigenous" are synonymous and interchangeable;

"Agreement" means this Incremental Agreement negotiated under section 4.5.1 of the Framework Agreement;

"Canada" means Her Majesty the Queen in right of Canada;

"Expenditure Need" means the estimated cost required to enable the MMF to fulfill the responsibilities:

1. referred to in paragraph 8 of this Agreement,
2. agreed to in a Supplementary Self-Government Agreement, or
3. set out in a Fiscal Arrangement,

based on comparable measures or standards for other governments or other public bodies performing functions of government to perform similar functions;

"Federal Law" includes federal statutes, regulations, ordinances, orders in council, and common law;

"Fiscal Arrangement" means a mechanism agreed to by the Parties, including an agreement or other measure, that sets out for the duration of the Fiscal Arrangement:

1. the federal funding or access to fiscal capacity to be provided by Canada to the MMF to meet its Expenditure Need, and
2. the responsibilities of the MMF in respect of that federal funding or fiscal capacity;

"Framework Agreement" means the Framework Agreement on Advancing Reconciliation signed by the Parties on November 15, 2016;

"Implementation Legislation" means any Act of Parliament contemplated under paragraphs 45 to 51 that gives effect to the Treaty;

"Jurisdiction" and "jurisdiction" mean law-making authority;

"Manitoba Métis Citizen" means an individual:

1. who meets the criteria for Manitoba Métis Citizenship set out in Manitoba Métis Laws, which may include the definition of "Métis" that was ratified by the Métis National Council General Assembly on September 27-28, 2002, amended at the 2013 Métis National Council General Assembly, and included in the Manitoba Métis Constitution, and
2. whose name is included in the register maintained under paragraph 22;

"Manitoba Métis Community" or "Manitoba Métis" means the Métis collectivity that:

1. is one of the Métis collectivities that together make up the Métis Nation, an Indigenous People that originated in the historic Métis Nation homeland, which is the area of land in west central North America used and occupied as the traditional territory of the Métis Nation,
2. was historically known as the Red River Métis, a vibrant Métis community that was established with its own identity, language, culture, institutions, and way of life centred in the Red River Valley, and whose citizens and individuals entitled to become citizens are today located within what is now Manitoba as well as elsewhere inside and outside of Canada,
3. collectively holds the right to self-determination recognized in the United Nations Declaration on the Rights of Indigenous Peoples,
4. collectively holds the rights and freedoms referred to in sections 25 and 35 of the Constitution Act, 1982 that are derived from those of the Red River Métis referred to in subparagraph (b), including the inherent right of self-government, and
5. increasingly desires to be referred to as the "Manitoba Métis";

"Manitoba Métis Constitution" means the MMF constitution as adopted or amended from time to time;

"Manitoba Métis Federation" or "MMF" means:

1. the democratic representative body of the Manitoba Métis, having the responsibility for providing responsible and accountable self-government through its governance systems and institutions as set out in the Manitoba Métis Constitution, including applicable laws, policies, procedures, practices, customs, and traditions, as amended from time to time, and
2. until the coming into force of the Implementation Legislation, includes the Manitoba Metis Federation Inc.;

"Manitoba Metis Federation Inc." or "MMF Inc." means the legal entity incorporated under The Corporations Act, C.C.S.M c. C225 for conducting financial and administrative affairs relating to the Manitoba Métis and otherwise carrying out its objectives;

"Manitoba Métis Institutions" means the departments, organizations, bodies, entities, and corporations created, owned, controlled by, or affiliated with the Manitoba Métis or the MMF;

"Manitoba Métis Law" means a law made by the MMF, and includes the Manitoba Métis Constitution, statutes, regulations, ordinances, and orders;

"Minister" means the Minister of Crown-Indigenous Relations;

"Supplementary Self-Government Agreement" means an agreement contemplated in subparagraph 44(d); and

"Treaty" means the Manitoba Métis Self-Government Recognition and Implementation Treaty contemplated under paragraph 44.

Interpretation

2. The definition of "Métis" adopted by the Métis National Council General Assembly and included in the Manitoba Métis Constitution is:

"Métis"

1. means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation,
2. "Historic Métis Nation" means the Aboriginal people then known as Métis or Half-Breeds who resided in the Historic Métis Nation Homeland,
3. "Historic Métis Nation Homeland" means the area of land in west central North America used and occupied as the traditional territory of the Métis or Half-Breeds as they were then known,
4. "Métis Nation" means the Aboriginal people descended from the Historic Métis Nation, which is now comprised of all Métis Nation citizens and is one of the "aboriginal peoples of Canada" within section 35 of the Constitution Act, 1982, and
5. "Distinct from other Aboriginal Peoples" means distinct for cultural and nationhood purposes.

3. The recitals are an integral part of the consideration of this Agreement, are part of this Agreement, and can be used to provide a description of the nature and background of the relationship of the Parties and guidance in the interpretation and implementation of this Agreement.

4. In this Agreement:

1. a reference to a statute includes every amendment to it, every regulation made under it, and any law enacted in substitution for, or in replacement of it;
2. unless it is otherwise clear from the context, the use of the singular includes the plural, and the use of the plural includes the singular;
3. words importing the masculine gender shall include the feminine and neuter genders, and words importing persons shall include firms and corporations and vice versa; and
4. the table of contents, headings and subheadings are for convenience only and in no way define, limit, alter or enlarge the scope or meaning of any provision of this Agreement.

Purpose

5. The purpose of this Agreement is to:

1. recognize, support, and advance the exercise of the Manitoba Métis’ right to self-determination, and its inherent right to self-government recognized and affirmed by section 35 and protected by section 25 of the Constitution Act, 1982, in a manner that is consistent with the United Nations Declaration on the Rights of Indigenous Peoples, through a constructive, forward-looking, and reconciliation-based arrangement that is premised on rights recognition and implementation;
2. recognize, as between the Parties, the role, functions, and authority of the MMF, as a first step toward conclusion of the Treaty and introduction of Implementation Legislation;
3. commit to continue negotiations toward conclusion of the Treaty;
4. provide a foundation for continuing to address on a government-to-government basis the remedying of "the ongoing rift in the national fabric" caused by Canada’s failure to act diligently to fulfill the obligations set out in section 31 of the Manitoba Act, 1870 as a result of which "the Métis did not receive the intended head start, and following the influx of settlers, they found themselves increasingly marginalized, facing discrimination and poverty"; and
5. inform and continue the government-to-government relationship between the Parties.

6. For greater certainty, nothing in this Agreement extinguishes, limits, defines, restricts, or surrenders any of the rights of the Manitoba Métis recognized, affirmed and protected by sections 25 and 35 of the Constitution Act, 1982, in particular the inherent right to self-government, or the right of the Manitoba Métis to self-determination.

Recognition

Jurisdictions relating to Manitoba Métis Governance

Other MMF functions and responsibilities

Fiscal matters

37. The ongoing financing of the MMF is a shared responsibility of the Parties.

38. Further to the shared responsibility referred to in paragraph 37, the Parties will work together to enter into and maintain Fiscal Arrangements that:

1. are intended to ensure that the MMF has access to sufficient fiscal resources to meet its Expenditure Need; and
2. advance the goals of:
   1. Manitoba Métis Citizens having equal opportunities for well-being to those of other Canadians,
   2. achieving and maintaining equity in socio-economic outcomes between Manitoba Métis Citizens and other Canadians,
   3. supporting the political, social, economic, and cultural development of the Manitoba Métis,
   4. the MMF having the means to preserve, protect, use, develop, and transmit the language, culture, and heritage of Manitoba Métis Citizens and the Manitoba Métis, including the past, present, and future manifestations of that culture, and contributing to the revitalization of Michif, and
   5. Manitoba Métis Citizens having access to public programs and services that are reasonably comparable to those available to other Canadians in similar circumstances; and
3. take into account:
   1. the population and geographic distribution of Manitoba Métis Citizens served by the MMF,
   2. the unique and distinct structure of the MMF as established and operated from time to time,
   3. other unique cultural features or traditional decision-making institutions or practices of the MMF, and
   4. the desirability that Fiscal Arrangements should be reasonably stable and predictable over time, while providing sufficient flexibility to address changing circumstances.

39. Upon signing this Agreement, the Parties will work together to reach a fiscal financing agreement to satisfy the requirements of paragraph 38 and address, among other things:

1. the MMF’s responsibilities under this Agreement, a Supplementary Self-Government Agreement, or a fiscal financing agreement;
2. how transfer payments from Canada to the MMF will be calculated and made, including:
   1. if, how and in what circumstances the own-source revenues or own-source revenue capacity of MMF will be considered, and
   2. the manner in which transfer payments may be adjusted during the term of the fiscal financing agreement;
3. procedures for resolving disputes related to the implementation or interpretation of the fiscal financing agreement;
4. the process for the amendment, extension, renewal or replacement of the fiscal financing agreement;
5. the term of the fiscal financing agreement;
6. reporting requirements; and
7. any other provisions agreed to by the Parties.

40. The Parties may agree to replace a fiscal financing agreement with another Fiscal Arrangement.

41. Except as expressly provided for in this Agreement, nothing in this Agreement and no exercise of jurisdiction that has been recognized in this Agreement, will be interpreted as creating a financial obligation or service responsibility on the part of either Party.

42. Any payments required for the purposes of a Fiscal Arrangement will be subject to an appropriation by the Parliament of Canada for those purposes.

43. Except as otherwise provided in this Agreement, nothing in this Agreement:

1. will prevent the MMF, Manitoba Métis Institutions, or Manitoba Métis Citizens from participating in and benefiting from federal programs or federally-sponsored government programs in accordance with the general criteria established from time to time, to the extent that the MMF has not assumed responsibility for the programs under a fiscal financing agreement or other agreement; or
2. affects other funding arrangements between the Parties.

Non-derogation

52. This Agreement will be construed so as to uphold existing aboriginal and treaty rights recognized and affirmed under sections 25 and 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.

No effect on other Indigenous Peoples

53. Nothing in this Agreement affects, recognizes, or provides any rights under section 35 of the Constitution Act, 1982 of any Indigenous people or collectivity other than the Manitoba Métis.

54. If a superior court of a province, the Federal Court of Canada, or the Supreme Court of Canada finally determines that any Indigenous people, other than the Manitoba Métis, has rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement:

1. the provision will operate and have effect to the extent that it does not adversely affect those rights; and
2. if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

55. If Canada enters into a treaty or a land claims agreement, within the meaning of sections 25 and 35 of the Constitution Act, 1982, with another Indigenous people, and that treaty or land claims agreement adversely affects the Manitoba Métis’ section 35 rights as set out in this Agreement, Canada will provide the Manitoba Métis with additional or replacement rights, or other appropriate remedies.

No effect on the Constitution of Canada

56. For greater certainty, this Agreement does not alter the Constitution of Canada in any way, including:

1. the distribution of powers as set out in the Constitution Act, 1867;
2. Métis inclusion in section 91(24) of the Constitution Act, 1867; and
3. any right, freedom, interest, or claim protected by sections 25 and 35 of the Constitution Act, 1982 or flowing from any constitutional duty or obligation.

Section 31 of the Manitoba Act, 1870

57. The Parties will continue to negotiate and attempt to agree on an approach and schedule to address on a government-to-government basis the remedying of the ongoing rift in the national fabric caused by Canada’s failure to act diligently to fulfill the obligations to the Manitoba Métis contained in section 31 of the Manitoba Act, 1870, which denied the Manitoba Métis their promised head start, as contemplated by sections 4.5.2 and 5.3 of the Framework Agreement.

Dispute resolution

58. The Parties will endeavour to resolve any disputes in respect of the interpretation, operation, or implementation of the Agreement informally, including by a meeting of senior officials, which may include the President and the Minister, before resorting to litigation.

Liability and indemnification

59. The MMF will indemnify and save harmless Canada and its employees and agents from any and all claims, demands, actions, and costs whatsoever that may arise directly or indirectly out of any action or omission of the MMF, its governance structures, and Manitoba Métis Institutions and their employees or agents in relation to:

1. the MMF’s authority to represent the Manitoba Métis and to enter into this Agreement on behalf of the Manitoba Métis; and
2. the exercise of any rights, powers, or responsibilities arising from a Manitoba Métis Law that occur between the signing of this Agreement and the coming into force of Implementation Legislation.

60. Canada will indemnify and save harmless the MMF and its employees and agents from any and all claims, demands, actions, and costs whatsoever that may arise directly or indirectly out of any action or omission of Canada and its employees or agents in relation to the exercise of any federal rights, powers, or responsibilities arising from any applicable Federal Law that occur between the signing of this Agreement and the coming into force of Implementation Legislation.

61. The Party that is the subject of a claim, demand, action, or proceeding that may give rise to liability for which an indemnity is provided in paragraphs 59 or 60:

1. will defend the claim, demand, action, or proceeding; and
2. will not settle or compromise the claim, demand, action, or proceeding except with the consent of the Party that has granted the indemnity, which consent will not be arbitrarily or unreasonably withheld or delayed.

Representations and warranties

62. Canada represents and warrants, with the intent and understanding that the representations and warranties will be relied on by the MMF in entering into this Agreement, that it has the authority to enter into this Agreement and that this Agreement is a valid and binding obligation on Canada.

63. The MMF represents and warrants, with the intent and understanding that the representations and warranties will be relied on by Canada in entering into this Agreement, that it has the authority to enter into this Agreement and that this Agreement is a valid and binding obligation on the MMF.

Non-reliance

64. Each Party acknowledges that in entering into this Agreement it does not rely on any statement, representation, or warranty other than those expressly set out in this Agreement.

Judicial determinations in respect of validity

65. If a court finally determines that any provision of this Agreement is invalid or unenforceable:

1. the provision will be treated as if it had been severed from this Agreement to the extent of the invalidity or unenforceability;
2. the Parties will do their best to amend this Agreement to remedy or replace the provision; and
3. the rest of the provisions and this Agreement:
   1. remain in full force, and
   2. are to be interpreted, as far as possible, to give effect to the intentions of the MMF and Canada.

66. Neither Party will challenge, or support a challenge to, the validity of any provision of this Agreement.

No implied waiver

67. A provision of this Agreement, or the performance by a Party of an obligation under this Agreement, may not be waived unless the waiver is in writing and signed by the Party giving the waiver.

68. No written waiver of a provision of this Agreement, of performance by a Party of an obligation under this Agreement, or a default by a Party of an obligation under this Agreement, will be a waiver of any other provision, obligation, or subsequent default.

Assignment

69. Except as otherwise agreed to by the Parties, this Agreement may not be assigned, either in whole or in part, by any Party.

Enurement

70. This Agreement will enure to the benefit of and be binding upon:

1. the MMF and its successors, assigns and agents; and
2. Her Majesty the Queen in right of Canada, Her heirs, successors and agents.

Amendment

71. This Agreement may only be amended with the prior written consent of the Parties.

Communications

72. In paragraphs 73 to 75, "communication" includes a notice, document, request, approval, authorization, or consent.

73. Unless otherwise set out in this Agreement, a communication between the Parties under this Agreement must be:

1. delivered personally or by courier;
2. transmitted by fax or electronic means;
3. mailed by prepaid registered post in Canada; or
4. communicated by any other means agreed by the Parties.

74. A communication will be considered to have been given, made or delivered, and received:

1. if delivered personally or by courier, at the start of business on the next business day after the business day on which it was received by the addressee or a responsible representative of the addressee;
2. if transmitted by fax or electronic means and the sender receives confirmation of the transmission, at the start of business on the business day next following the day on which it was transmitted;
3. if mailed by prepaid registered post in Canada, when the postal receipt is acknowledged by the addressee; or
4. if communicated by any other means, received on a date agreed to by the Parties.

75. If no other address for delivery of a particular communication has been provided by a Party, a communication will be delivered, mailed to the addressee, or transmitted to the fax number, of the intended recipient as set out below:

For: Canada
Attention: Minister of Crown-Indigenous Relations
10 Wellington Street
Gatineau, Quebec, K1A 0H4
Fax: (819) 953-4941

For: MMF
Attention: President’s Office
300-150 Henry Avenue
Winnipeg, Manitoba, R3B 0J7
Fax: (204) 947-1816

76. A Party may change its address or fax number by giving notice of the change to the other Party.

Signing of this Agreement

77. This Agreement will be signed by the Parties following:

1. a. approval from the MMF Cabinet authorizing the President to sign this Agreement on behalf of the Manitoba Métis Community, in accordance with the Manitoba Metis Self-Government Declaration Resolution passed by the 51st Manitoba Metis Federation Annual General Assembly, Resolution #5, 2019; and
2. approval from the federal Cabinet authorizing the Minister of Crown-Indigenous Relations to sign this Agreement on behalf of Canada.

78. This Agreement will come into force upon signing in accordance with paragraph 77.

Counterparts

79. This Agreement may be signed in one or more counterparts. A signed counterpart may be delivered to the other Party by facsimile or by electronic transmission in portable document format ("PDF") and a facsimile or PDF so transmitted will constitute an original document. Signed counterparts held by a Party, taken together, will constitute one and the same instrument.

This Agreement has been signed by the Manitoba Metis Federation Inc. and Her Majesty the Queen in Right of Canada on the dates noted below.

For the Manitoba Metis Federation Inc. signed at the city of _________ in the province of __________ this ______ day of _______, 2021