Métis Nation of Ontario urges judge to reject First Nations court challenge

First Nations in eastern Ontario are mischaracterizing legal precedent and making offensive arguments in a "doomed-to-fail" fight against recognition of Métis rights in their territories, a Métis Nation of Ontario (MNO) lawyer said Tuesday in Federal Court.

The MNO is asking a judge to dismiss the Wabun Tribal Council's court challenge against the MNO's self-government agreement with Canada, which the council rejects as "colonization 2.0" and "an existential threat" to First Nations rights.

But MNO lawyer Jason Madden, who introduced himself as Métis from northwestern Ontario, said "it defies logic" for First Nations to question the existence of Métis in the province.

"It may make good media clips, but it isn't telling the truth about the history," said Madden, of law firm Pape Salter Teillet, at an in-person hearing in Toronto that was streamed via Zoom.

That history, he said, is one where the Canadian government applied its assimilationist agenda differently to First Nations and Métis.

While First Nations were hit collectively with the Indian Act, Canada attempted to assimilate Métis by ignoring their collective rights, hoping they'd be absorbed individually into the mainstream, Madden said.

He argued the self-government agreement was co-developed to avoid those colonial pitfalls.

"I get that that's unfair to First Nations who had a colonial piece of legislation imposed on them, but it's also quite unfair, for 150-plus years, for Métis to have no recognition," he said.

Filed in March, the application for judicial review now has several proposed third-party interveners and faces competing motions, including the current motion to strike the application, the tribal council's motion for an injunction and a Canadian attempt to withhold certain internal documents.

Justice Canada lawyer Dan Luxat, representing the minister of Crown-Indigenous relations, told the court the deal is a bilateral political arrangement concerning only internal administration, not land or harvesting rights and doesn't impact First Nations.

But the Wabun Tribal Council disagrees. The group is scheduled to make responding arguments Wednesday.

'Rockcliffe Lawn Tennis Club'

The council consists of Matachewan, Brunswick House, Chapleau Ojibwe, Flying Post, Mattagami and Beaverhouse First Nations, which are spread over a swathe of Treaty 9 territory in eastern Ontario about the size of France.

They reject claims of a historic Métis presence in their area and say a duty to consult them has been shirked. In response filings, the council argues some MNO communities may not hold Aboriginal rights under Section 35 of Canada's Constitution.

"We agree with Canada that negotiation is often preferable to litigation," the filing reads.

"But Canada is not free to find that any group it wishes holds s. 35 rights. It cannot enter a s. 35 self-government agreement with the Rockcliffe Lawn Tennis Club."

Madden said likening the MNO to a sports association in the ritzy Ottawa neighbourhood is insulting and deeply offensive.

"I don't want to leave the court with the impression that these are somehow fake, illegitimate, uncredible communities," he said.

He walked the judge through the Supreme Court of Canada's 2003 Powley ruling, which he said the First Nations "significantly mischaracterize."

The decision affirmed Métis hunting rights in and around Sault Ste. Marie, Ont. In 2017, the Ontario government recognized six more Métis communities, of which one is in the Wabun Tribal Council's territory. The First Nations argue some of these communities outside Sault Ste. Marie may not be able to pass the Métis rights test set out in Powley.

The federal agreement was signed this February, committing the parties to negotiating a future treaty that will supersede it, which the First Nations argue provides a beachhead for the MNO to make claims to their territories. Canada and MNO say land is expressly excluded in the deal at issue.

Madden's core argument however was that the court has no jurisdiction to review the deal because it was a high-level political decision that forms part of the legislative process of Bill C-53, which would ratify the MNO deal and similar ones signed with Métis associations in Alberta and Saskatchewan.

The proposed legislation sparked controversy among First Nations, who urged recently shuffled minister Marc Miller to shelve it given their widespread concerns, but Miller refused.

The First Nations have also pointed to the Manitoba Métis Federation's refusal to recognize the new Ontario communities and the MNO's decision earlier this year to oust more than 5,000 members who couldn't prove their ties to an MNO community.

Associate Judge Benoit Duchesne previously decided the MNO's motion must be settled first, given that if the group succeeds the other issues become moot.

The hearing on that motion concludes Wednesday.