Alberta (Aboriginal Affairs and Northern Development) v. Cunningham

Supreme Court of Canada – [2011] 2 S.C.R. 670

Alberta Canadian Charter of Rights and FreedomsGovernance (self-determination, self-government)IdentityMétis

The Court determined that Métis could be refused rights guaranteed by the Metis Settlement Act upon registering as status Indians.

 This treatment could be considered a violation to the right to equality guaranteed by the Canadian Charter of Rights and Freedoms, as it creates a distinction between Métis with Indian status and those without, but it comes from an ameliorative program with the goal of enriching the culture, identity and autonomy of the Métis.


In order to preserve the unique Métis culture and identity and to assure effective self-governance through a dedicated Métis land base, some line drawing will be required.  It follows of necessity that not every person who is a Métis in the broad sense of having Indian-European ancestry and self-identifying with the Métis community, as discussed in Powley, may be entitled to the benefit of membership under the MSA. (para. 86 of the decision)


Do the Métis Settlements Act violate the Charter? If yes, is this violation a reasonable limit imposed by a rule of law that is justified in a free and democratic society?


The Metis Settlement Act (MSA) is an ameliorative program with the goal of enriching the culture, identity and autonomy of the Métis. The exclusion of the Métis with Indian status is a reasonable way of ensuring the effectiveness of the program. Even if this is discriminatory and deprives certain Métis of their rights, it is in accordance with the Charter (unanimous decision).  


Between: the Crown of Alberta (Minister of Aboriginal Affairs and Northern Development) and Registrar, Métis Settlements Land Registry

And: Barbara Cunningham, John Kenneth Cunningham, Lawrent (Lawrence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham, Ray Stuart and Peavine Métis Settlement

Interveners: Ontario, Quebec, Saskatchewan, East Prairie Métis Settlement, Elizabeth Métis Settlement, Métis Nation of Alberta, Métis National Council, Métis Settlements General Council, Aboriginal Legal Services of Toronto Inc., Women’s Legal Education and Action Fund, Canadian Association for Community Living, Gift Lake Métis Settlement and Native Women’s Association of Canada


The descendants of unions between Europeans and Aboriginals, the Métis, have developed a distinct culture from their ancestors. The Métis were never granted the same benefits as the Indians, such as the creation of reserved lands or the protection of recognized rights by the Indian Act.

 This changed when section 35 of the Constitution Act, 1982, finally recognized three distinct Aboriginal peoples: the Indians, the Métis and the Inuit. In Alberta, the MSA was the product of negotiations between the government and the Métis. It promoted the establishment of reserved lands for the Métis, the self-government of Métis communities and protected their culture and identity.

The Cunninghams were Métis from Alberta and members of the Peavine Métis settlement that was recognized by the MSA. They decided to register as Indians, pursuant to the Indian Act, in order to obtain medical benefits. Sections 75 and 90 of the MSA establish that voluntary registration under the Indian Act precludes membership in a Métis settlement. The Cunninghams were accordingly excluded from Peavine.


Alberta: There is no violation of the right to equality because s. 15(2) of the Charter protects the MSA from allegations of discrimination. There is no need to discuss whether ss. 2d) and 7 of the Charter were violated.

 Cunningham: The MSA is unconstitutional. It violates the right to equality, the freedom of association and the freedom to choose a place of residence, rights that are protected respectively by ss. 15, 2d) and 7 of the Charter.

Decision of the lower courts

The chambers judge: There was no violation of the right to equality as it is impossible to realize goals that are common to Métis with and without Indian status. Section 7 of the Charter is not violated because the impact on the right to liberty was not arbitrary or disproportionate.

The Court of Appeal: The provisions of the MSA are incompatible with the right to equality because there is no evidence that the exclusion of Métis with Indian status would allow to attain the objectives of the ameliorative program.

Reasons for Judgement


McLachlin, Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein, Cromwell


S. 15 of the Canadian Charter of Rights and Freedoms

The goal of section 15 of the Charter is to ensure a substantive equality between citizens. More specifically, section 15(2) allows the government to seek to improve the situation of a disadvantaged group. In order to determine whether this initiative is a violation of the right to equality, one must ask whether (1) there is a distinction drawn on one of the enumerated grounds and (2) whether this distinction is justified by section 15(2).

The MSA makes a distinction between status Indians and non-registered Indians, which is a distinction drawn on grounds analogous to those enumerated in the Charter. For this distinction to be justified, it must be proven that the MSA is genuinely ameliorative and serves to improve the situation of the disadvantaged group. There must be a correlation between the program and the disadvantage suffered by the group, as well as the goal of promoting substantive equality.

The MSA aims to ensure the protection and enhancement of Métis culture and identity, as well as the promotion of self-government through the establishment of a land base. It is therefore a program that strives to improve the protection and enhancement of Métis culture as distinct from Indian culture. In this struggle to preserve their own identity, there is reason to fear that the overlap between the cultures will compromise the Métis identity and culture. Establishing a distinction on these grounds is therefore rational because of the historical and social distinctions between the Métis and Indians.

The fact that certain individuals may identify as both Métis and Indian does not detract from the justification of this exclusion in the name of substantive equality under s. 15(2) of the Charter. There is no substantive discrimination in violation of s. 15(1) of the Charter, so there is no need to determine whether the violation is in accordance with s. 1.

Other provisions of the Charter

Insufficient evidence has been brought forth to allow the Court to judge whether there has been a violation of the freedom of association guaranteed by s. 2d) of the Charter. With regards to s. 7 of the Charter, there is no indication that this impact on liberty is contrary to the fundamental principles of justice. There is therefore no violation of the right to liberty.


The Supreme Court decided unequivocally that an Albertan Métis could not also be a status Indian. The repercussions of this judgement are that individuals with both identities must now choose which one should be recognized.

The Métis nations seem to be pleased by the decision. After 5 years of negotiations and centuries without acknowledgement, there is finally recognition of their identity as distinct from other aboriginal peoples. The Court also affirms the difference between the rights and interests of each and grants them reserved lands.

Furthermore, the judgement established the right to exclude other aboriginal peoples from Métis protection policies, from the definition of their membership criteria and the discussion of their own interests with the government. Also, the Métis now have the assurance that the MSA will continue to protect their culture for generations to come.

Certain aboriginal communities find it worrisome that this decision does not adequately reflect the relationship between the Métis and the Indians. The Court based their decision on a preconceived notion of the Métis and their culture, to the exclusion of all Indians.

Related Cases

Applies the test laid out in R.  v. Kapp, [2008] 2 S.C.R. 483

For the identification of Métis rights, refer to R. v. Powley, [2003] 2 S.C.R. 207


Ralliement nationale des Métis. 2011. Métis Nation Applauds Supreme Court’s Decision on Alberta Métis Settlements. On line: Consulted June 26 2013.

Marcus, Joseph. 2011. Alberta v. Cunningham. The Substantive Power of Section 15(2). The Court. On line: Consulted June 26 2013.

Ontario Coalition of Aboriginal People. 2011. Ontario Coalition of Aboriginal People concerned about the Supreme Court of Canada decision in Cunningham v. Alberta. On line: C Consulted June 26 2013.

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