Final arguments in Qalipu First Nation membership trial focus on oppression, transparency

The court challenge to the Qalipu First Nation’s admissions process ended Wednesday, with attorneys debating whether the Federation of Newfoundland Indians’ actions amounted to suppression of membership.

A group called the Friends of Qalipu Advocacy Association is challenging a 2013 amendment between the federal government and the Federation of Newfoundland Indians, the group that created the Qalipu First Nation.

This agreement changed the registration process introduced in 2008, requiring applicants and members of the Qalipu band to provide evidence proving they met the registration criteria through a complex point system.

More than 104,000 people applied to join the band, but in the end only 18,044 applicants were successful. More than 10,000 existing Qalipu band members were kicked out.

After the court adjourned, Friends of Qalipu’s attorney Keith Morgan said the lawsuit was intended to correct an injustice.

“There have been families that have broken up, you have twin sisters that have been separated from recognition, you have communities that have fractured,” he said.

“Ultimately, I think it affects the legitimacy of the Qalipu First Nation band.”

Dozens of people have attended the hearings since they began two weeks ago, and many are hoping for a second chance at Qalipu First Nation membership. Some broke down in tears during the latest clashes on Wednesday.

Both the federal government and the FNI are named in the lawsuit, which calls for the reversal of the 2013 Accord, a re-evaluation of all applications for Qalipu First Nation membership, and a declaration that the Accord constitutes membership suppression.

FNI attorney Philip Buckingham argued that the 2013 agreement did not change the original 2008 agreement or the membership criteria, but instead clarified the existing registration process.

Morgan disagreed, calling the registration point system “degrading and inappropriate”.

“It creates a hurdle that’s almost impossible to clear,” he said.

Malicious?

Morgan and Buckingham spent hours discussing a complex chain of events leading up to the 2013 Supplemental Agreement and whether a claim of membership suppression is justified.

Morgan argued the FNI violated its own charter when it signed the 2013 agreement with the federal government by failing to consult members.

“It’s up to the FNI to go to their membership for approval to enter into an agreement,” he said.

However, Buckingham said that once the Qalipu First Nation was formally formed, a special resolution dictated that membership in the FNI would be automatically reduced to members of the Qalipu Band Council, leaving former members with no say in decisions.

Buckingham said the process leading to this special resolution and supplementary agreement was democratic and transparent.

“There isn’t a whiff, there isn’t the slightest bit of evidence that there was any evil intent,” he said.

In his rebuttal, Morgan said his clients only realized the impact of the FNI’s actions after the fact.

“To say that is fair, open and transparent? Nothing is further from the truth,” he said.

A question of jurisdiction

Kelly Peck, the federal government’s attorney, argued the case fell outside the jurisdiction of the provincial Supreme Court.

“This allegation is an attack on the process by which the Canadian government recognized the Qalipu Mi’kmaq under Indian law,” she said.

The Friends of Qalipu made a claim under the Provincial Corporations Act, but Peck noted that Indian Act status decisions are a matter for the federal government.

“The decision to form new Indian bands rests with the governor in council, not the courts,” she said.

“There is a very real discrepancy here between the underlying claim and the remedies sought.”

However, Morgan said that as the plaintiffs contest the actions of the FNI – a Newfoundland and Labrador corporation – “jurisdiction is clear”.

No decision period

After the arguments concluded, Judge Valerie Marshall said she could not give a timeframe for her decision.

Regardless of the outcome, all parties have the opportunity to appeal.

“We hope that won’t be necessary,” Morgan said. “We hope that we are making the right decision and that the Canadian government and FNI are doing the right thing and respecting the court’s decision.”

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