Judge questions First Nations' right to challenge Ontario Métis self government

A Federal Court judge had some tough questions for lawyers representing six First Nations challenging an Ontario Métis self-government agreement Wednesday in Toronto.

The Wabun Tribal Council in eastern Ontario alleges the Canadian government's decision to sign the deal with the Métis Nation of Ontario (MNO) encourages dubious claims to lands where the Métis have little or no historic ties.

But the MNO says the council's case is "doomed," and tribal council lawyer Corey Shefman found himself in the hot seat early on day two of a hearing over whether it should be thrown out of court. 

"Where does your client get the authority to determine who is Métis and who isn't?" asked Associate Judge Benoit Duchesne, adding pointedly: "That's a problem."

The First Nations applied for judicial review against Canada in March, but the MNO soon joined the case and promptly filed a motion to have it dismissed. Lawyers for the MNO and Ottawa argued their position Tuesday.

Among other things, they said the First Nations have no right to attack the deal because it concerns only internal governance, excludes land, and doesn't impact them at all.

But, Shefman countered, First Nations with thousands of years of occupation behind them have every right to demand the Canadian government verify those it recognizes are truly Indigenous to the lands they claim. 

"Canada can't wave a magic wand and simply deem people with no historical connection to a particular place to be Indigenous to that place," said Shefman, with Indigenous-focused law firm Olthuis Kleer Townshend.

The Wabun Tribal Council consists of Matachewan, Brunswick House, Chapleau Ojibwe, Flying Post, Mattagami and Beaverhouse First Nations.

Their traditional territory comprises an area of Treaty 9 roughly the size of France. It overlaps with claimed Métis territory, the Abitibi Inland Métis Homeland, which the Ontario government recognized along with five others in 2017.

Shefman said the MNO is incorrectly trying to portray the case as an attack on the foundation of Métis nationhood. He emphasized the First Nations accept the existence of Métis rights and blamed the conflict on colonial tactics aimed at sowing division.

"For too long the Crown has played divide and conquer between Indigenous peoples, and it's extremely unfortunate that we've been put in this situation by the Crown," he said. "Our clients have been forced to, as they perceive it, protect their rights."

Argument 'defies logic'

The exchange set the tone for a day of back-and-forth between the tribal council's attorneys and Duchesne, the judge.

On Tuesday, MNO lawyer Jason Madden said elements of the First Nations' arguments — such as likening the MNO to Ottawa's "Rockcliffe Lawn Tennis Club" sports association in a court filing — were insulting.

"It defies logic" for First Nations to question the existence of Métis in Ontario, he said, citing the Supreme Court of Canada's 2003 Powley ruling, which affirmed Métis hunting rights in and around Sault Ste. Marie, Ont.

Madden's core argument however was that the court has no jurisdiction to review the deal because it forms part of the legislative process. Bill C-53, which Ontario First Nations vigorously oppose, would ratify the MNO deal and others signed with Métis associations in Alberta and Saskatchewan.

Justice Canada lawyer Dan Luxat, representing the minister of Crown-Indigenous relations, told the court the agreement expressly excludes land and harvesting rights — issues for another day.

Eastern communities contentious

The legitimacy of some MNO communities, particularly in the east, is hotly contested. The Manitoba Métis Federation rejects the 2017 MNO communities. 

The federation cut ties with the Métis National Council in 2021, alleging the Ontario group was sponsoring a pan-Indigenous "eastern invasion." Earlier this year, the MNO voted to oust 5,000 members who couldn't prove a connection to an MNO community.

Taking over from Shefman in the afternoon court session, lawyer Krista Nerland argued a duty to consult was triggered and ignored, but the judge pushed back, saying alleged negative impacts to First Nations rights were purely speculative.

Nerland argued the deal, which commits the parties to reaching a treaty in two years, provides ammunition for some MNO communities to assert land rights they may not have. The First Nations must voice concerns now, not later, she said.

"The First Nations have a genuine interest in what happens in their territory and who's recognized there, rooted in their deep connection to those lands and their own Anishinaabe law," Nerland told Duchesne. 

Despite his insistent probing, the judge noted he hadn't decided anything yet. 

Duchesne said he hoped to render his decision on whether the case can proceed, and if so — how, by September.