It’s one or the other, says the Supreme Court

A ruling by the Supreme Court of Canada underscores that the Métis are a people with a distinct identity and culture. And, insists Jason Madden, legal counsel for the Métis National Council (MNC), “the Metis have the right to decide who they are themselves and to make those distinctions and to exclude individuals who are registered as Indians.”

The Cunningham v. Alberta case went before the Supreme Court of Canada in December 2010.

At issue was the membership of the Cunningham family in the Peavine Métis Settlement. 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, because they chose to claim Indian status under the Indian Act.

Cunningham et al chose Indian status because the family felt benefits for Indians outweighed benefits available for Métis. Section 75 of the Métis Settlement Act prohibits anyone with Indian status from obtaining Métis settlement membership, while Section 90 calls for the removal of membership from the settlement for individuals who have voluntarily registered as Indians under the Indian Act.

The Alberta Court of Appeal struck down sections 75 and 90 of the Settlement Act saying they were unconstitutional.

However, the Supreme Court of Canada, which released its decision July 21, said that those sections of the Act did not violate the Charter of Rights and Freedoms.

“In this decision, the Supreme Court acknowledges the longstanding struggle of the Métis Nation in Canada to have our rights and interests recognized by governments, including the recognition of Métis lands,” said Clement Chartier, president of the MNC.

In its 50-page decision, Supreme Court Chief Justice Beverley McLachlin wrote, “The Métis have a right to their own culture and drawing distinctions on this basis reflects the Constitution and serves the legitimate expectations of the Métis people.

The MNC, along with the Métis Nation of Alberta and Métis Settlements General Council, received intervener status in case.

While the ruling is specific to Métis settlements in Alberta, and in particular to the membership of the Cunninghams, its implications are widespread.

“People have a choice and there’s nothing wrong with that. But they can’t choose both,” said Madden.

However, at this point, there is no mechanism in place for the Cunninghams – or anyone else in their position – to de-register under the Indian Act.

“The MNC has raised (this issue) several times with the minister of Aboriginal and Northern Affairs. There should be a way for people to voluntarily remove themselves from the Indian Act. With the Cunningham decision, there’s great impetus to look at that issue more,” said Madden.

He added that he expected the issue will be challenged in the future.

Alberta is the only province with a land base for Métis.
“While this case protects the Alberta Métis Settlements for Métis for generations to come, it also sends a clear message to governments that outstanding Métis land rights issues must be addressed . . . ,” said Chartier.
Madden said that the decision sets the stage for other provinces to follow Alberta’s lead in setting aside specific lands for Métis.

“We hope this will lead to a model for other governments because what it clearly says in this decision is that it was a good thing for Canada to do it and it’s protected,” said Madden.

The Alberta government began setting aside lands for the Métis in the 1920s. All eight Métis settlements are located in the northern part of the province.

“This is a very strong tool that the Métis have now in their kits to really stress ‘We’re not Indian, we’re not Inuit, but it doesn’t mean we’re less than. You’ve got to do something with us. It may not be identical with what you do for Indians and it may not be identical with what you do for Inuit, but you can’t be willfully blind to the fact we’re there and we’re an Aboriginal people,’” said Madden.