Métis Nation B.C. in court after feds say it doesn't qualify as 'Indigenous governing body'

The Canadian government is blocking a bid by the Métis Nation British Columbia (MNBC) to opt into federal Indigenous child-welfare law on the grounds MNBC doesn't qualify as an "Indigenous governing body," Federal Court files show.

The decision sparked an ongoing court challenge in which MNBC, one of four provincial branches of the Métis National Council, calls the move unreasonable and wrong, and asks a judge to quash it.

The allegations are untested in court. Indigenous Services Minister Patty Hajdu hasn't filed a response.

In its July 2022 application for judicial review, MNBC says it is the democratically elected Métis government in the province and represents nearly 90,000 self-identified Métis, of which more than 22,000 are registered members.

On Feb. 14, 2020, MNBC then-president Clara Morin Dal Col notified the federal and provincial governments MNBC intended to exercise jurisdiction over child and family services under Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families.

More than two years later, on May 9, 2022, MNBC's current President Lissa Smith met with rejection in a letter from Catherine Lappe, assistant deputy minister at Indigenous Services.

"At this time, it is the Government of Canada's view that the Métis Nation of British Columbia does not meet the requirements to be considered an Indigenous governing body under the federal legislation," Lappe said.

"There is currently insufficient evidence to demonstrate [MNBC] has been authorized by any communities that hold rights recognized and affirmed by s.35 of the Constitution Act, 1982."

Lappe's letter also rejected MNBC's request to access capacity building cash available for rights-holding Indigenous groups, communities, organizations or governments that want to take back control of child and family services.

"We have not been able to confirm" if MNBC qualifies for that either, Lappe said, though she added the funding proposal could be re-evaluated in the future.

In a memo filed with the court that was circulated internally, Indigenous Services said the decision could be revisited "should the existence of a rights-bearing Métis community in British Columbia be demonstrated" in court.

Despite that rejection, MNBC's 2021-2022 audit shows Indigenous Services provided the organization with millions of dollars from envelopes earmarked for other programs.

MNBC counted nearly $58 million in revenue, the bulk of it from various federal departments, during that fiscal year, the audit shows.

Indigenous Services declined to make Lappe available for an interview and did not provide a statement by time of publishing.

Request to keep documents secret

For the judicial review, the department filed Lappe's letter in court along with significantly censored internal supporting documents, arguing the records contain some information that must remain confidential.

Government lawyers then requested a court order allowing Indigenous Services to file the uncensored versions in secret, for the court's eyes only, free from public scrutiny.

Indigenous Services argued some information is irrelevant, while other information is protected by a 2018 agreement between Canada and MNBC that allows for confidential negotiations.

In a Jan. 31 motion, Indigenous Services acknowledged this secrecy would have a harmful impact on the democratic rights to freedom of expression and an open court system, but argued the benefits would outweigh the harm by giving the court the full suite of relevant history and context.

The court granted the request. The secret material was filed last week.

MNBC declined to comment on the active case.