Gowlings represented the successful applicants who had been unfairly denied membership.

Yesterday, the Federal Court issued two important decisions regarding the enrollment process for the Qalipu Mi'kmaq First Nation of Newfoundland. The decisions are expected to have broad ramifications for the establishment of the membership list for the Qalipu Mi’kmaq First Nation, which was established in 2011 after decades of litigation and negotiation.

In an apparent effort to minimize the number of individuals eligible for membership in the newly-formed First Nation, the Federal Government and the Federation of Newfoundland Indians retroactively altered eligibility criteria, and began rejecting applications on purely technical grounds, while providing no recourse or right of appeal. Two of these rejections were challenged. In both cases the individuals otherwise qualified for membership. In one case, the applicant was rejected for having signed in one instead of two signature boxes; in the other case, the applicant was rejected for allegedly failing to provide a long-form birth certificate.

The Court found this to be fundamentally unfair, and ordered that these decisions of the Qalipu Enrollment Committee be set aside. The Enrollment Committee was ordered to evaluate the applications in accordance with the substantive membership criteria set out in the agreement for the recognition of the First Nation.

Background

When Newfoundland entered confederation in 1949, no provision was made under the Terms of Union for recognition of Aboriginal peoples in the province. The province long asserted that it was not home to any Aboriginal peoples. In 1972, the Federation of Newfoundland Indians (FNI) was formed to seek recognition of Mi’kmaq peoples in Newfoundland and Labrador. After decades of intermittent negotiation and litigation, an agreement between Canada and the FNI was reached which would establish the Qalipu First Nation (Qalipu). That Nation came into existence in 2011.

A process for establishing membership in the First Nation and registration as status Indians under the Indian Act was set out in the landmark agreement, based on certain defined criteria.

After receiving over 100,000 applications for Band membership (a number which far exceeded what was anticipated), the Qalipu Enrollment Committee began rejecting applications based on minor, administrative deficiencies. Alex Howse's application for membership was rejected because he had signed only one of two signature boxes on the application form, while Sterling Foster's application was rejected because he allegedly failed to provide a copy of his long-form birth certificate.

These decisions had the effect of denying these individuals membership in the Qalipu Mi'kmaq First Nation as well as Indian status under the Indian Act. No notice of these technical deficiencies was provided to the applicants. They were not permitted to provide any additional information, and there was no appeal from the decision.

Decision

The Applicants Howse and Foster, represented by Gowlings, argued that these decisions were unfair and unreasonable, particularly in light of the profound impact the decisions would have on the applicants and the nature of the rights and interests at stake.

FNI argued that the decisions of the Enrollment Committee were not judicially reviewable, as the Enrollment Committee's authority to decide applications stemmed from a private agreement between the federal government and FNI. The applicants argued that the only authority to decide issues of Band membership and Indian status rests with the federal government, and that the decisions are therefore within the purview of s. 18 of the Federal Courts Act. The Court agreed.

Both the Attorney General of Canada and FNI argued that the level of procedural fairness owed to the applicants was on the low end of the spectrum. The applicants argued that in light of the interests at stake and the lack of any appeal procedure, a high degree of procedural fairness was required. Again, the Court agreed.

The Court concluded that the decisions were both procedurally unfair and unreasonable. As a result of the importance of the rights at stake, the fact that the applicants were not notified of the deficiencies in their applications or given an opportunity to correct them, and the absence of any avenue of appeal, the Federal Court ruled that the decisions of the Enrollment Committee failed to meet the minimum standards of procedural fairness and were unreasonable. The applications were therefore remitted back to the Enrolment Committee to be considered in accordance with the applicable substantive criteria.

Implications

While the Court’s decisions technically apply only to the applicants Howse and Foster, it is estimated that there are some 4,000 additional applicants whose claims were rejected on similar bases. These decisions are therefore expected to have wide implications for the establishment of the membership of Canada’s newest recognized First Nation band.