Canada accused of stonewalling in court challenge to Métis Nation of Ontario self-government deal

Minister of Crown-Indigenous Relations Marc Miller leaves a cabinet meeting on Parliament Hill in Ottawa on May 2. (The Canadian Press/Sean Kilpatrick - image credit)
Minister of Crown-Indigenous Relations Marc Miller leaves a cabinet meeting on Parliament Hill in Ottawa on May 2. (The Canadian Press/Sean Kilpatrick - image credit)

The Canadian government is being accused of stonewalling in a court challenge by the First Nations of the Wabun Tribal Council against a recently signed Métis Nation of Ontario (MNO) self-government agreement.

Lawyers for Crown-Indigenous Relations are refusing to release internal documents tied to the deal, derailing the Wabun Tribal Council's request for court disclosure, while the MNO says it plans to try and get the case dismissed, according to letters filed in court last week.

"This is just another example of Canada doing things in secret," said Wabun Tribal Council executive director Jason Batise on Tuesday.

The council represents Matachewan, Brunswick House, Chapleau Ojibwe, Flying Post, Mattagami and Beaverhouse First Nations in northeast Ontario. They applied for judicial review of the MNO agreement in March, disputing the asserted presence of Métis communities in their homeland.

Wabun Tribal Council
Wabun Tribal Council

As part of the case, the First Nations asked Crown-Indigenous Relations to hand over all material considered or created by minister Marc Miller, his representatives or his predecessors concerning the Feb. 24 agreement, including all documents and communications.

But Canada's lawyers refused, arguing the documents are "privileged and confidential," protected by settlement and negotiation privilege or subject to cabinet confidence, according to a May 1 letter sent to the Federal Court in Toronto.

The Justice Department argues the document request is "sweeping" and "overly broad," and that First Nations "are not in any way impacted" by the deal, which is limited to MNO governance and not land or harvesting rights, a contention Batise rejects.

"Miller's in some sort of a fantasy land thinking that this is just about internal governance matters with the Métis," he said.

"There is a duty to consult with First Nations on things that impact them. This has a clear and very lasting impact on First Nations rights, and we need to know."

Miller acknowledged the concerns around land rights in brief comments to reporters after a cabinet meeting Tuesday in Ottawa.

"The last thing we want to see is Indigenous communities being pitted against other Indigenous communities because of actions Canada took in the past," he said.

Despite that, and while noting the situation "is fraught with some uncertainty," he pledged to stay the course on the deal, which includes ratifying it through legislation.

"We have a duty to recognize the legitimate right of Métis governments to govern themselves," he said.

"This is their right to do so, and that will be enshrined in legislation."

MNO wants to have challenge tossed

Meanwhile, in a letter to the court also dated May 1, the MNO's lawyer says it plans to try and have the case dismissed on similar grounds. The MNO argues the deal, because it commits Canada to passing implementation legislation, is outside the court's jurisdiction.

The MNO also says the First Nations lack legal "standing" to challenge its internal self-government matters "or to effectively disprove Métis rights."

MNO President Margaret Froh has blamed "misinformation" for the mounting resistance and called the denial of Métis communities in Ontario "deeply offensive."

"Ontario has been the home to Métis communities before Canada became Canada and before Ontario became a province," Froh said in an emailed statement last week.

"These Métis communities continue to exist today. To suggest otherwise is to ignore historic facts."

Métis Nation of Ontario
Métis Nation of Ontario

The Ontario government and the MNO announced the identification of six new historic Métis communities throughout the province in 2017 through a joint research project.

In response, the Wabun Tribal Council commissioned a September 2022 independent review by University of Ottawa researcher Darryl Leroux, which challenged MNO's conclusions.

Similarly in March 2023, the Robinson Huron Treaty group representing 21 Anishinaabe bands in the upper Great Lakes released its own review of the MNO's research, calling it questionable and "propelled by politics and not by sound research practice."

On Monday, the Robinson Huron chiefs joined other First Nations leaders denouncing the deal and calling on Canada to hit the brakes on the proposed legislation.

"We cannot sit idly by while the settler government continues to discuss and deal with groups claiming Indigenous ancestry without our consent," said Batchewana First Nation Chief Dean Sayers in the group's release.

This follows a similar statement from Grand Council Treaty #3 in northwestern Ontario last week, which called itself "extremely concerned" by the situation.

The Wabun Tribal Council also has the backing of the Chiefs of Ontario umbrella organization, representing more than 130 First Nations, which voiced support last year.

Batise said the council's members are ready for a prolonged battle — if that's what it comes to.

"If Canada is willing to take this to the Supreme Court, so be it," he said.

"Our communities are prepared to accept that fight."