Métis settlement membership case goes to Supreme Court

The Métis Nation of Alberta, Métis Settlements General Council and the Elizabeth Métis Settlement are all seeking intervener status in the Cunningham v. Alberta case that is going in front of the Supreme Court of Canada in December.

In June of 2009, the Alberta Court of Appeal ruled two sections of the Métis Settlements Act unconstitutional, striking them down and effectively allowing Métis who are registered under the Indian Act to maintain their membership in their settlement. Sect. 75 prohibits anyone with Indian status from obtaining Métis settlement membership, while Sect. 90 calls for the removal of membership from the settlement for individuals who have voluntarily registered as Indians under the Indian Act.

David Dear, spokesperson for Alberta Justice, said his department was limited in what it could say because the case was in front of the court.

“Our position under Alberta law is that Métis settlements should indeed have the right to exclude status Indians from membership in Métis communities as they had before the Alberta Court of Appeal ruling,” said Dear.

What the Alberta Court of Appeal has effectively done, said Audrey Poitras, president of the Métis Nation of Alberta, is taken the decision of who can be considered Métis out of the hands of the Métis people.

“This issue goes to the heart of who is Métis and the Métis nation needs to be there to make our point,” said Poitras.

Also seeking intervener status is the Métis National Council.

 “(Cunningham v. Alberta is) a sleeper case. This issue has crept up and while it’s specific to the Métis settlements it has broader implications for the Métis nation as a whole,” said Jason Madden, counsel for MNC.

Madden conceded there was an “abuse of process” when Barbara Cunningham, John Kenneth Cunningham, Lawrent Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham and Ray Stuart were removed from the Peavine Métis Settlement’s membership roll in May 2001, but striking down sections 75 and 90 of the MSA was “not an appropriate remedy.”

The bigger picture, said Madden, is the potential handcuffing when Métis nation governments attempt to negotiate programs and services specific to Métis people. Discrimination can be claimed by others in order to seek those services.

Since the Powley decision, Métis have moved forward as a distinct people with a distinct culture. In 2002, a definition of Métis was adopted at a national level as well as by the MNA.

“We want to be (at the Supreme Court) to ensure we clearly say that only we, the Métis people, get to decide who is Métis based on our inherent rights. This is not a decision for government or for the courts to make,” said Poitras.

If intervener status is granted, the organizations will provide written arguments to the court and may also be given the opportunity to present oral arguments.

“Métis settlement membership is a critical and complex issue. It’s at the heart of preserving Métis culture and identity in Alberta and our decision to appeal took that into account,” said Dear.

The case is scheduled to be heard in Ottawa in mid-December.