On March 18, 2016, the Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs, and Brendan Mitchell, Chief of the Qalipu Mi’kmaq First Nation, announced that the Qalipu Enrollment Committee would reassess all applications previously rejected on the basis of technical irregularities.

This is an important victory for the many individuals who had applied for membership in the newly-recognized First Nation (situated in Newfoundland) and saw their applications refused based on minor technical deficiencies.

This development follows the decision of the Federal Court, in September 2015, that denial of membership by the Qalipu Enrolment Committee based on minor technical deficiencies in two specific instances were profoundly unfair and failed to accord with fundamental principles of procedural fairness. One applicant had been rejected from Band membership on the basis that he failed to properly sign the application form; the other applicant was rejected for allegedly failing to include a copy of his long-form birth certificate with his application. The applicants argued that these decisions were unfair and unjust, serving to deny the applicants’ constitutional rights to Indian status and Band membership. The Federal Court of Canada agreed and the Qalipu Mi’kmaq Enrollment Committee was ordered to reconsider the applications.

While those decisions constituted major victories for the individual applicants and the Mi’kmaq First Nations Assembly of Newfoundland -- the not-for-profit organization which had supported the litigation -- the decisions applied only to the two individuals named in the legal proceedings. Legally, therefore, the decisions of the Federal Court did not extend to the approximately 6500 other Qalipu applicants whose applications had been rejected on the same, or similar bases.

Ongoing lobbying and public awareness campaigns by the Mi’kmaq First Nations Assembly of Newfoundland, with assistance from Gowling WLG, urged the Federal Government and the Qalipu First Nation to apply these decisions to all previously rejected applications. This, it was urged, was the only fair process for determining the membership of the Qalipu Mi’kmaq First Nation and the applicants’ individual entitlements to Band membership and Indian status.

In a major victory, on March 18, 2016, the Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs, and Brendan Mitchell, Chief of the Qalipu Mi’kmaq First Nation, announced that the Qalipu Enrollment Committee would reassess all applications previously rejected on the basis of technical irregularities.

The details of the decision were released on the Ministry of Indigenous and Northern Affairs website announcing that the Enrollment Committee will now evaluate all 6500 in accordance with substantive membership criteria. Affected applicants will be provided with an opportunity to remedy any technical irregularities with their applications and provide the additional documentation relating to self-identification and/or group acceptance in support of their applications.

Additional background information on the original judicial review applications is provided below.

Gowling WLG (Jaimie Lickers, with support from Brian Crane, Graham Ragan and Guy Régimbald) was honoured to act as counsel to the two individual applicants on this matter and to advise the Mi’kmaq First Nations Assembly of Newfoundland.

Background

When Newfoundland entered confederation in 1949, the province had 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. Ultimately, an agreement between Canada and the FNI was reached establishing the Qalipu First Nation (Qalipu) 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, in an effort to minimize the number of individuals eligible for membership in the newly formed First Nation, the Qalipu Enrollment Committee began rejecting applications based on minor, administrative deficiencies. 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. Two of these rejections were challenged by Applicants represented by Gowling WLG. 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.

In September 2015, the Federal Court issued two important decisions regarding the enrollment process for the Qalipu from these two Applicants.

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. Given 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 Enrollment Committee to be considered in accordance with the applicable substantive criteria.