Algonquins get green light to sue over recognition of Ontario Métis groups

The Algonquin Nation is free to sue the Ontario government over the 2017 recognition of Métis communities on unceded Algonquin territory, the province's top court has ruled.

In a unanimous decision rendered Thursday, the Ontario Court of Appeal rejected a bid by the Métis Nation of Ontario (MNO) to have an ongoing case thrown out, ruling the Algonquins of Ontario (AOO) must have leeway to challenge alleged violations of their rights.

That includes the right to be consulted where Crown decisions could harm them, and there must be a way to reconcile competing First Nations and Métis rights, according to the three-judge panel.

Writing for the trio, Justice Peter Lauwers said the courts are adrift in "open water" on that question in the wake of the Supreme Court of Canada's 2003 Powley decision, which affirmed Métis harvesting rights in and around Sault Ste. Marie, Ont.

"How those rights are to be reconciled with other competing Aboriginal rights is yet an open question, respecting which we are in open water," Lauwers wrote. "In my view, the imperative of reconciliation also applies to competing Indigenous rights."

In lower court, the MNO succeeded in getting the Algonquins' claim, filed in 2018 by then-chief Kirby Whiteduck of the Algonquins of Pikwakanagan near Golden Lake, Ont., partially dismissed. The Algonquins appealed, however, and the Métis counter-appealed to get the whole claim squashed.

But the appellate bench sided with the Algonquins, saying "every right must have a remedy." In other words, they must be given flexibility to pursue justice for what they allege is the Crown's running roughshod over their constitutional rights.

In a statement to CBC Indigenous, the MNO pointed out that the AOO allegations weren't decided, only the MNO motion to strike the case. The group is mulling its options, including whether to seek leave to appeal to Canada's high court, the statement said.

"The MNO will continue to protect and advance the constitutional rights of Métis citizens and communities it represents in Ontario."

The Algonquin Nation has 17,000 status members spread across 11 bands throughout the Ottawa River watershed, in both Ontario and Quebec. There are nine non-status communities under the AOO umbrella, plus Pikwakanagan.

If it stands, the decision could have ramifications for similar legal battles raging between the Ontario Métis and other First Nations, namely the Wabun Tribal Council, which intervened in the Whiteduck case.

CBC Indigenous was unable to reach spokespeople for the AOO or the Wabun Tribal Council by phone or email Friday.

The tribal council is in Federal Court trying to quash Canada's decision to sign a self-government deal with the MNO, which brought a motion to strike that court challenge too.

In that case, a federal judge bombarded the council's lawyers with questions during a hearing last week, asking, for example, "Where does your client get the authority to determine who is Métis and who isn't?"