Court dispute between First Nations and Métis Nation of Ontario highlights longstanding issues

An ongoing court battle between the Métis Nation of Ontario (MNO) and several First Nations is highlighting longstanding conflict over recognition of Métis communities and rights.

After the MNO signed a self-government agreement with the federal government in February, several First Nations groups said they were worried about how the deal could affect their communities. The agreement is supposed to lead to a self-government treaty between the MNO and Canada within the next two years. 

The Wabun Treaty Council (WTC), representing six First Nations in northeastern Ontario, filed a judicial review to have the MNO's self-government deal thrown out. 

Daniel Voth, an associate professor in the department of political science at the University of Calgary, said the MNO's self-government agreement, and First Nations' reaction to it, exposes a number of longstanding issues. 

The MNO defines Métis as a person who self-identifies as Métis, is distinct from other Aboriginal peoples, is of historic Métis Nation ancestry and is accepted by the Métis Nation. 

In 2017, the Government of Ontario and the MNO affirmed the existence of six more historic Métis communities in the province. 

Both WTC and the Robinson Huron Waawiindamaagewin (RHW), representing 21 First Nations, commissioned research that challenged the existence of these communities. 

Voth, who is Métis and grew up near his family's scrip land near Winnipeg, said early census records provide some insight into how the history of people with mixed Indigenous and European ancestry became complicated.

Census categories like "Indian" or "half-breed," along with subjective assessments of people's skin colour, determined which Indigenous people were afforded treaty rights in the 19th century, he said.

Those categories remain part of how Indigenous ancestry is often traced today. 

"Those racial categories were really important to settlers and their bureaucrats," said Voth.

"That is the damage and the violence that we are dealing with."

'Mixed ancestry does not a people make'

An exploratory study by the RHW said that researchers had "repeatedly heard from First Nation leaders and community members in Ontario that the MNO appears to be using their Anishinaabeg and Cree family members" as Métis root ancestors on the basis of mixed ancestry. 

The RHW research also said some people identified as Métis root ancestors by the MNO were actually "Anishinaabeg individuals living among their kin in Anishinaabeg First Nations" and showed no signs of having a distinct non-Anishinaabe culture.  

The issue in both cases, Voth said, is "mixed ancestry does not a people make." Rather, shared characteristics like language, laws and history are necessary to define a community.

Voth said if you accept that the research is true — that Cree and Anishinaabe people were wrongly classified as Métis root ancestors — the implications are worrying. 

"The broader implication of this is that the legitimacy of the Nation's ability to identify its own members has been fundamentally undermined."

Ontario's recognition of the six historic Métis communities identified in 2017 is at the root of the issue for some First Nations. 

The RHW's research said the move by the province "provided the MNO with de facto veto power over land-based projects and territorial negotiations involving First Nations" by requiring them to consult with the MNO on issues like "economic development, mining and infrastructure licensing, specific land claims and treaty land entitlement negotiations."

Similarly, a court filing by the WTC said the MNO's self-government deal "poses an existential threat to the constitutionally protected rights of the First Nations."

Alternative dispute resolution mechanisms needed

In previous reporting by CBC News, MNO President Margaret Froh said she was surprised and troubled by the reaction from First Nations. Froh told CBC News she would prefer to settle the dispute with the WTC through dialogue rather than through the courts. 

Voth said the fact that there are no shared dispute resolution mechanisms for these types of situations is a problem.

"We need structures that allow us to have those disputes aired and resolved that are not the Canadian court system," Voth said.

By going to the courts to settle disputes, Voth said it's handing the power to make decisions to "judges and lawyers who, by and large, are not us."

Voth also said he's worried about the impact these disputes could have on non-Indigenous people who are trying to engage with Indigenous people for work on reconciliation.  

"One of the things this conflict makes difficult, is when that happens it's not clear if they're who they're actually supposed to be talking to."