Seeking a broader interpretation of the Powley decision, the Ontario Metis Aboriginal Association (OMAA) is asking an Ontario court to set aside the Metis Harvesting Agreement the Ontario Ministry of Natural Resources (MNR) has struck with the Metis Nation of Ontario (MNO).
The Powley decision was the first case in which the Metis constitutional right to harvest was recognized by the Supreme Court of Canada. It has become the impetus to negotiate Metis harvesting agreements in Alberta and Ontario, and has created expectations of similar agreements in other provinces.
Micheal McGuire, president of OMAA said the MNO agreement has reduced the Metis right to hunt to a privilege.
John Clow, legal council for OMAA in their case against the government, described the situation as follows:
"After the Powley decision, the MNR requires a person, a Metis person, to submit a Metis harvesting license request so that the MNR can in turn determine whether or not that person is a Metis," said Clow.
"Also the MNR, we allege, has entered into an agreement with the MNO whereby it has agreed that in exchange for the relinquishment of certain hunting and fishing rights of its Metis members, it issued a number of harvesting cards," he said.
"What we say is that a constitutionally protected right of the Metis and, in particular, the applicants in this application, my clients ... has been negotiated to a privilege meted out by the MNR and MNO. This in effect extinguishes our constitutionally protected Metis hunting and fishing rights."
Not only does OMAA seek to set aside the MNO agreement, it attempts to combine 40 different charges against OMAA members for hunting and fishing infractions into one legal action.
The federal government is seeking to have the case thrown out on the grounds that the Ontario court the case is being heard in does not have jurisdiction to rule on it.
McGuire acknowledges that not all members of OMAA are Metis, however OMAA wants the same rights for all its members regardless of their ancestry.
McGuire calls OMAA members the Woodlands Metis, and that they consist of persons declaring themselves to be Metis, non-status and off-reserve First Nations persons, and Inuit.
Clow states that all the persons in OMAA's legal action have declared themselves to be Metis.
What this situation illustrates is that not everyone agrees what constitutes a Metis person. The differences in definition of the term Metis is represented by the separate political organizations.
McGuire questions as to how a smaller Metis organization, the MNO, can be representative of Metis issues with the Ontario government over a larger Metis organization, OMAA.
For the MNO's part, President Tony Belcourt said he does not know who OMAA members are, but that they are not Metis. He said that it is for the courts to decide what rights they have separate from MNO involvement.
It should be noted that Belcourt is a former regional president of OMAA before becoming the founding president of the MNO.
Jean Teillet is legal council for the MNO in this most current legal action brought by the OMAA.
Teillet is also the lawyer who represented the MNO in the Powley case and won the decision in appeal court.
The late Steve Powley was a member of OMAA at the time he was initially charged in 1993. The MNO had not been formed at this point. However he was a member of the MNO in 2003 when he finally won his case.
Teillet said OMAA has a fundamental lack of understanding of the MNO and their harvesting agreement.
Teillet agreed with the logic in OMAA wanting to combine cases into one action. She said is was her understanding that OMAA has well over a hundred cases for which they are trying to provide legal representation.
What Teillet cannot agree with is why OMAA wants to take what she calls a "side swipe" at the MNO harvesting agreement with the province.
The MNO has a right as a recognized Aboriginal organiztion to enter into an agreement with the government for its members, just as OMAA has that right for their members, said Teillet.
A legal agreement, such as the Metis Harvesting Agreement, she said, has never been set aside in Canadian law before, and she does not feel the situation will change in this case.
"They have their facts all wrong," said Teillet. "They say that [the agreement] is a procedure for unilaterally determining who are the Metis people, and that simply is not true," she said.
"The MNO's agreement recognizes MNO harvester cards and the MNR had absolutely not one single bit of participation in determining who got a MNO harvester's card."
"In their (OMAA) factum, it says that MNR issues those cards and that is completely factually wrong."
Teillet also said the OMAA factum states the MNR put a limit on the number of harvesting cards the MNO could issue.
"That is also factually wrong. The MNO itself determined that it would only issue 1,250 cards. To OMAA, that might sound like a limitation. In fact MNO has never issued more than 800 cards. The issue was that 1,250 would well look after all the MNO members who needed harvester cards for the period of the agreement," Teillet said.
"Remember, this is only a two-year agreement. One of the clauses was that we would work out a way to increase the number if it became necessary."
Teillet said she does not understand why OMAA wants to involve the MNO in their case with the federal and provincial governments. Teillet feels OMAA could resolve their case without the MNO.
Teillet also acknowledges that almost all MNO members were at one time members of OMAA, because it was the only Metis organization in Ontario in the past.
Jack Salkin, a lawyer who works as a business manager for an OMAA subsidiary corporation, speaks of this issue
"We don't have the same definition of a Metis as the MNO; that is a western-based organization that says you are only Metis if you come from the Metis ation, which is basically the Red River area of North America, which in theory would exclude any Metis person in Eastern Canada," said Salkin.
"Nobody seems to explain to me how they miraculously appeared in the middle of the continent without moving east, and taking some time to get there," he said.
The OMAA case was heard in court in May, and the judge reserved decision on it. No time line was specified as to when a decision would be reached.