"Double-dipping" allowed in Alberta with court decision.

The Alberta Court of Appeal has struck two sections from the Metis Settlements Act (MSA) effectively allowing Metis who are registered under the Indian Act to maintain their membership in their settlement. But the decision could have farther reaching consequences.

On June 26, the Alberta Court of Appeal ruled in Cunningham v. Alberta (Aboriginal Affairs and Northern Development) that sections 75 and 90 of the province's MSA were unconstitutional. Sect. 75 prohibits anyone with Indian status from obtaining Metis settlement membership, while Sect. 90 calls for the removal of membership from the settlement of individuals who have voluntarily registered as Indians under the Indian Act.

The appeal was heard on March 4. It was the result of a 2007 ruling by the Court of Queens Bench of Alberta that upheld the claim of the Registrar of Metis Settlements that Barbara Cunningham, John Kenneth Cunningham, Lawrent Cunningham, Ralph Cunningham, Lynn Noskey, Cordon Cunningham, Roger Cunningham and Ray Stuart, who had all been removed from the Peavine Metis Settlement's membership roll in May 2001 under Sect. 90, could not be reinstated because of Sect. 75. The Cunningham family had gained Indian status under the Indian Act in March 2001.

The ruling presents a number of issues, said lawyer Jean Teillet, who writes an annual Metis law summary.

Striking out Sect. 75 means that an individual registered under the Indian Act would be eligible to apply for Metis settlement membership, while striking out Sect. 90 prevents the automatic termination of membership upon voluntary registration for Indian status under the Indian Act.

More specifically, the ruling reinstates the Cunningham family to the Peavine membership list as well as provides them with Metis settlement membership benefits retroactive to the date they lost their standing.

Gerald Cunningham, president of the Metis Settlements General Council, said the council's legal department was studying the decision and would brief the council and present options at the council's assembly meeting in late July.

Alberta is the only province in which Metis have a land base and the MSCG is the only legislated Metis government in Canada. There are eight settlements, and benefits vary between settlements and may include free housing and education training programs.

"The biggest benefit is that we have a land base with a lot of good hunting and fishing in our communities," said Cunningham.

The Peavine Cunningham members applied for Indian status in order to receive health care benefits.

"If benefits were the same for all across the board then people would register according to their cultural affiliation and not where they would get the best benefits at any given time," pointed out Teillet. She noted that "double-dipping" could take place now with both registered Indian status and Metis settlement membership allowed.

But on a general level, the decision "is a bit problematic," said Teillet. "The decision is based on the courts analysis of what it means to be Metis."

Teillet said the court ruling is putting emphasis on blood quotient and not culture.

"The court is saying that in order to be Metis you have to prove your Indian roots contrary to what many Metis organizations say. Metis organizations say members have to have Metis roots not Indian roots," said Teillet.

Being Metis is usually more a reference to culture and people who are descendants of settlers and Indian women. Metis doesn't normally refer to the Cree woman, who married a non-Indian in 1985, lost her status, and has children by him.

"This is a Cree kid, not a Metis kid because there is culture that goes along with Metis and that is not being recognized if you are only looking at blood quotient," said Teillet.

Patricia Valladao, spokesperson for Indian and Northern Affairs Canada, said, "The Indian Act criteria has not changed as a result of the Peavine decision."

However, the Supreme Court of Canada is in the process of making a decision on whether to hear amendments to the Indian Act. Sharon Mclvor applied for leave to appeal a decision rendered by the British Columbia Court of Appeal in May. Mclvor is challenging what she views as the discriminatory treatment of the descendants of Indian women who marry non-Indian men.

"It's too early to tell if the ruling in Alberta will have an effect on the (Mclvor) case," said Valladao.

The ruling could have an impact on Metis associations across the country, many of which will not provide membership to individuals who are registered under the Indian Act.

Greg Taylor, director of communications with the Metis National Council, said the council was studying the decision and was not prepared to comment at this time.

"Specifically right now it only really affects the settlements because it hasn't really gone any further (than Alberta)," said Taylor.

The provincial government has 60 days from the date of the decision to file a leave to appeal to the Supreme Court of Canada.

"We'll be doing a thorough review of the judgment itself and rationale and then considering our options," said Marie Iwanow, spokesperson for Alberta's Aboriginal Relations. She said the Metis Settlements General Council will be consulted.

The Alberta Court of Appeal decision also allows a person registered as an Inuk for the purposes of a land claims settlement to apply for Metis settlement membership, and a person registered as an Inuk for the purpose of a land claims agreement cannot be automatically stricken from Metis settlement membership.

By Shari Narine

Windspeaker Writer