Sleeper of a case receives national attention

The Métis National Council (MNC) is seeking intervener status in an Alberta case that has been appealed by the Alberta government to the Supreme Court of Canada.
Cunningham v. Alberta is a sleeper case, said Jason Madden, counsel for MNC. “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,” he said.
The case was sparked when long-time members of the Peavine Métis Settlement in Alberta voluntarily obtained Indian status and were removed from the settlement’s membership list.

The authority to remove the individuals fell under the Métis Settlements Act, but according to the facts of the case, the list of those to be removed from the membership roll did not include all Peavine members who had registered as Indians. Only the appellants were removed, all of whom were members of the Cunningham family.

In June 2009, the Alberta Court of Appeal ruled that two sections of the Métis Settlements Act were unconstitutional. The court struck them down, effectively allowing Métis who are registered under the Indian Act to maintain their membership in their settlement.
Section 75 of the act prohibited anyone with Indian status from obtaining Métis settlement membership, while Section 90 called for the removal of membership from the settlement of 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 before 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.
Clement Chartier, president of MNC, said the executive made the decision this past June to apply for intervener status.

“The Court of Appeal didn’t look at Métis as a people. They said they should be happy to have people there, but your rights and culture come from the Indian people. They totally disregarded the Powley decision …. We are a distinct people and our rights are based on being Métis and not (being) part Indian,” said Chartier.

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 settlements act was “not an appropriate remedy.”

What the Alberta Court of Appeal has effectively done, said Audrey Poitras, president of the Métis Nation of Alberta, is take 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. Her organization is also seeking intervener status.

If it’s discriminatory for a Métis settlement to exclude registered Indians from the settlement, then problems could arise 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.

“It could remove the ability of Métis to say we’re negotiating for Métis-specific funds and we don’t include registered Indians because we don’t represent them,” said Madden.

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, and by 2004 had been accepted by all five Métis associations in Alberta, Ontario, Saskatchewan, Manitoba and British Columbia. All these Métis groups are at varying stages of putting together national and provincial Métis registries.
If the MNC and MNA are granted intervener status, they will provide written arguments to the court and may also be given the opportunity to present oral arguments. Madden is optimistic MNC will obtain intervener status as the organization was granted similar status in the Powley case.

“We want to put forward a strong Métis nation position regarding who gets the right to be identified as Métis by our (people), who has the right to participate in benefits that flow from being part of the Métis nation,” said Chartier.

Also applying for intervener status are the Métis Settlements General Council and the Elizabeth Métis Settlement.

“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.