Whatever the McCargar case decision says in its write-up, I don’t believe it will diminish what we are doing with Canada and with Alberta.” —MNA President Audrey Poitras
Applicant Donald McCargar (Delorme) has filed an appeal of the July 20th decision of Justice Kevin P. Feehan, who determined that the Metis Nation of Alberta Association (MNAA) is only an association and not a nation.
The appeal was filed on Aug. 17, on the basis that the presiding Justice did not determine the issues of the case beyond providing a mere interpretation of the Association’s bylaws.
In other words, reads a press statement issued today, while the decision by Justice Feehan did clarify the role and jurisdiction of the Metis Nation of Alberta and ruled that the MNAA is neither a nation nor a governing body for Metis people, the decision failed to go far enough.
Feehan “failed to take the application before him to its full conclusion,” said McCargar, the member of the MNAA who brought the MNAA to court for claiming to assert his s. 35 rights to negotiate a treaty on his behalf, his community and the Metis in Alberta. McCargar believes that an appeal is needed to further clarify the limited scope, role, and power of the MNAA.
Ironically, and contrary to the July decision, Minister Richard Feehan, Justice Feehan’s younger brother and Minister of Indigenous Relations has signed a Memorandum of Understanding with the MNAA stating that the Provincial Government is dealing with the MNAA on a “Nation to Nation” basis, reads the release.
McCargar challenges the legality of two Special Resolutions which were passed at the organization’s annual general assembly in August 2016 and registered under the Societies Act. One of the Special Resolutions is an Oath of Membership which states that the member voluntarily authorizes the Metis Nation of Alberta Association to assert and advance collectively-held Metis rights, interests and claims “on behalf of myself, my community and the Metis in Alberta.”
The oath was interpreted by Justice Feehan as applying only to the new Metis members of the Association, not Metis people at large. He was silent about the application to the Metis members’ community.
The other Special Resolution states the objective of the MNAA is to “negotiate, on behalf of the Metis in Alberta, a modern-day Treaty relationship with the Crown through a ‘land claims agreement’ or other arrangement as called for and contemplated within the meaning of s. 35(3) of the Constitution Act, 1982.” This was interpreted by Justice Feehan’s applying only to the Metis members of the Association, and not Metis people at large.
McCargar asserts that the way the MNAA purports to acquire his s. 35 rights for the purpose of collective assertion is contrary to law. He notes that only 0.5 per cent of the total membership of the MNAA voted on the Special Resolutions, and less than that voted in favour of them. He states that Justice Feehan did not address the appropriateness of the oath, which is the ability to give an oath on behalf of others in a free and democratic society under the Rule of Law.
By Shari Narine
An Alberta Court of Queen’s Bench Justice has called the Metis Nation of Alberta Association a “private voluntary body.”
The comments were made by Justice K.P. Feehan in his July 20 ruling in which he dismissed claims by MNA citizen Don McCargar that two resolutions passed in August 2016 were invalid amendments to the organization’s bylaws. The resolutions clarified the MNA’s objectives and authorizations with respect to advancing and achieving negotiations and agreements on Métis rights, interests and claims.
One of the two resolution deals with an oath that new members must take, which gives the MNA permission to act on their behalf.
Justice Feehan decided the resolutions fell within the purview of the MNA as it is a “private voluntary body, bound by the provisions of its bylaws.” He cited the Court of Appeal’s ruling in Boucher v. the Metis Nation of Alberta Association (2008), which stated that the MNA has terminology in its bylaws which suggests its a sovereign government “but just saying that does not make it so.”
MNA President Audrey Poitras is not deterred by the Feehan’s characterization of her association. She points out that many Indigenous groups have used the Societies Act, Incorporations Act, or Not-for-Profit Societies Act to get recognition as they further their cause to the point of full recognition by the Crown.
The MNA became an association under the Societies Act in 1971 in order to access government funding, which has led to it being labelled “just a club,” she said.
“It has taken this long and many court cases to get to the point of people finally recognizing us … We wouldn’t be signing nation-to-nation government-to-government agreements with the government of Alberta and government of Canada if it finally hadn’t got there,” she said.
On July 19, the MNA signed a consultation agreement with the government of Canada. Last November, the MNA and federal government signed a framework agreement for advancing reconciliation. In February 2017, the MNA signed a framework agreement with the province.
“For myself, I’m very pleased. Whatever the McCargar case decision says in its write-up, I don’t believe it will diminish what we are doing with Canada and with Alberta,” said Poitras.
Jason Madden, legal counsel for the MNA, says Feehan’s comment is simply a recognition of “the reality that Métis live within right now.” They have the mandate from their citizens to represent them based on the Declaration on the Rights of Indigenous Peoples and the inherent right of self-government, and “that isn’t dependent on what colonial courts or governments say about them.”
“They have incorporated legal entities or legal or administrative arms to act as the legal entities for their governments until such time as they enter into or reach formal self-government agreements with Canada, which then gets rid of the ‘incorporation’ or ‘association’ and they’re recognized as a government,” said Madden.
But Ron Quintal doesn’t see Feehan‘s comments as harmless. Quintal, who serves as president of the McKay Metis Community Association, says this ruling underscores MNA’s infighting and only serves to prove the MNA is a club with members and not a government with citizens. If members change their mind on their oath, they can withdraw their membership.
“If you don’t like the oath, if you don’t agree with the oath, you can turn in your membership card. How is that nationhood? How is that in any way, shape or form how you operate a nation? If we are building a registry for our membership does it mean if I give up my card, I’m not Métis anymore?” he said.
Should the federal or provincial governments change, Quintal is concerned that they will use Feehan’s classification of the MNA as a “private voluntary body” to not have to deal with the MNA as a government.
“What does that mean to nation-to-nation discussion?” he said. “I think we’ve hurt ourselves by fighting this case by trying to uphold an oath that, in my mind, usurps the members’ ability to exercise their rights.”
Quintal, who is also president of the McKay Metis Local, of the MNAA, blames the court case on Poitras’s leadership. He will be challenging Poitras as president for the provincial association in the Sept. 18 election. Only two people are vying for the position.