Province in ‘open water’ on competing First Nations-Métis claims, appeal court holds

CBC News: The Algonquin Nation is free to sue the Ontario government over the 2017 recognition of Métis communities on unceded Algonquin territory, the province’s top court has ruled.

In a unanimous decision rendered Thursday, the Ontario Court of Appeal rejected a bid by the Métis Nation of Ontario (MNO) to have an ongoing case thrown out, ruling the Algonquins of Ontario (AOO) must have leeway to challenge alleged violations of their rights.

That includes the right to be consulted where Crown decisions could harm them, and there must be a way to reconcile competing First Nations and Métis rights, according to the three-judge panel.

Writing for the trio, Justice Peter Lauwers said the courts are adrift in “open water” on that question in the wake of the Supreme Court of Canada’s 2003 Powley decision, which affirmed Métis harvesting rights in and around Sault Ste. Marie, Ont.

“How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water,” Lauwers wrote. “In my view, the imperative of reconciliation also applies to competing Indigenous rights.”

Métis mull high court appeal

In lower court, the MNO succeeded in getting the Algonquins’ claim, filed in 2018 by then-chief Kirby Whiteduck of the Algonquins of Pikwakanagan near Golden Lake, Ont., partially dismissed. The Algonquins appealed, however, and the Métis counter-appealed to get the whole claim squashed.

But the appellate bench sided with the Algonquins, saying “every right must have a remedy.” In other words, they must be given flexibility to pursue justice for what they allege is the Crown’s running roughshod over their constitutional rights.

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In a statement to CBC Indigenous, the MNO pointed out that the AOO allegations weren’t decided, only the MNO motion to strike the case. The group is mulling its options, including whether to seek leave to appeal to Canada’s high court, the statement said.

“The MNO will continue to protect and advance the constitutional rights of Métis citizens and communities it represents in Ontario.”

The Algonquin Nation has 17,000 status members spread across 11 bands throughout the Ottawa River watershed, in both Ontario and Quebec. There are nine non-status communities under the AOO umbrella, plus Pikwakanagan.

If it stands, the decision could have ramifications for similar legal battles raging between the Ontario Métis and other First Nations, namely the Wabun Tribal Council, which intervened in the Whiteduck case.

CBC Indigenous was unable to reach spokespeople for the AOO or the Wabun Tribal Council by phone or email Friday.

Similar motion in Federal Court

The tribal council is in Federal Court trying to quash Canada’s decision to sign a self-government deal with the MNO, which brought a motion to strike that court challenge too. In that case, a federal judge bombarded the council’s lawyers with questions during a hearing last week, asking, for example, “Where does your client get the authority to determine who is Métis and who isn’t?”

Of the six Métis communities recognized in 2017, two overlap with Algonquin territory and one with Wabun Tribal Council territory, both in the east.

First Nations in recent months have been ratcheting up a co-ordinated public relations and protest campaign against the alleged historic presence of Métis communities, particularly in those areas.

The Chiefs of Ontario advocacy group is demanding the federal government shelve proposed legislation to ratify the Ontario Métis self-government deal.

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The Manitoba Métis Federation, representing Red River Métis, rejects the new communities as interlopers, and broke from the Métis National Council over the issue in 2021.

Meanwhile, two of the Métis council’s remaining members urged caution on their Ontario counterpart last month, writing that “the recognition of our rights should not occur at the expense of, or in conflict with, our First Nations brothers and sisters,” according to letters filed in the Wabun case last week.

ABOUT THE AUTHOR

Brett Forester, Reporter

Brett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.