Cunningham v. Alberta

(WABIGOON, ONT. – July 26, 2011) The Ontario Coalition of Aboriginal People is concerned about the decision by the Supreme Court of Canada (SCC) in the case of Cunningham v. Alberta. The case dealt with the membership requirements of the Alberta Métis Settlements Act (MSA).

The MSA provides that voluntary registration under the Indian Act precludes membership in a Métis settlement. The claimants had sought a declaration that the denial of membership was unconstitutional, due to violations of s.15 in the Canadian Charter of Rights and Freedoms.  The SCC held that the MSA is ameliorative legislation for the purpose of s.15(2) of the Charter of Rights and Freedoms. Section 15 states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

“Our membership is very concerned about this decision because many of us identify as both Métis and Indian or non-treaty Indian,” said President Brad Maggrah.  “The decision does not reflect the historical relationship between Métis and Indians and has accepted a narrow ideological point of view of who are Métis. Our Métis culture is complex and is definitely not the simple manifestation accepted by the SCC,” said Maggrah.

The Women’s Legal Education and Action Fund (LEAF) is also deeply concerned with the consequences of the decision handed down by the SCC. “Yesterday’s decision represents a significant development in equality law with very troubling implications. The Court held that s.15(2) can be relied on by governments to protect discriminatory ameliorative schemes, provided the deferential s.15(2) test is met. Exclusionary effects are not seriously scruntinized, if the government has a genuine ameliorative purpose. As a consequence, governments seem to be given considerable latitude to design special programs without being vulnerable to challenges that they excluded groups who ought to have been included, even if those who are excluded are the most vulnerable.”

In 2009, the Alberta Court of Appeal had ruled that ss.75 and 90 of the MSA were unconstitutional, because they were inconsistent with the equality guarantee in s.15 of the Charter of Rights and Freedoms. The Appeal Court had directed that the claimants be registered in the Métis Settlement.

OCAP is a member of the Congress of Aboriginal Peoples (CAP), which has represented the rights and interests of off-reserve Status and non-Status Indians and Métis since 1971.

For more Information, please contact:
Brad Maggrah, President
Ontario Coalition of Aboriginal People
roads@drytel.net
Tel: (807) 938-1321
 

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