Decision in Qalipu First Nation membership court challenge ‘a long time coming,’ says former member
The people behind a Newfoundland and Labrador Supreme Court challenge against the agreement that changed the Qalipu First Nation enrolment process say they’re pleased with the result — even though they didn’t get exactly what they asked for.
In her decision released last week, Justice Valerie Marshall said the federal government likely pressured the Federation of Newfoundland Indians (FNI) — the group that established Qalipu First Nation — to change the enrolment process when thousands more people applied than expected.
The new enrolment system awarded points to applicants based on evidence they presented in a number of sections — including, controversially, proof of maintenance of Mi’kmaw culture and way of life.
Margaret Cranford, a founding member of Qalipu First Nation and a member of the FNI, was one of the thousands of people removed from the landless band when she was reassessed under the point system.
“It was absolutely devastating,” she said in an interview with CBC News on Friday.
She called Marshall’s decision “major.”
“I feel really positive about the outcome — it’s been a long time coming,” she said. “It’s been hurtful. We’ve lost a lot of family members that are not here to share in the joy of this ruling.”
Marshall said the FNI committed membership oppression against the five plaintiffs in the court challenge because it didn’t follow its own bylaws when it entered into a supplemental agreement with the federal government to change the enrolment process.
“In my view it would neither be just nor equitable to undo the supplemental agreement, which has already been performed,” she said.
Though she didn’t overturn that points system, Marshall said she understood its negative impact on the plaintiffs in the case.
“To have their status granted, and then revoked, has hurt the plaintiffs,” she said. “The loss of status represents loss of their identity, their heritage and their ancestry.”
Cranford said Marshall’s finding was affirming.
“It’s like somebody validating what you’ve known all along,” she said.
Turning back the clock
In some ways, the ruling is as complex as the decades-long chain of events which led up to the trial.
Keith Morgan, the lawyer for the plaintiffs, said the ruling does craft new remedies for both themselves and others who have been impacted.
“At this stage, the FNI has to have a new organizing process,” he said.
Marshall ordered the FNI to return to its previous bylaws from 2009 — which Morgan said means former members, like Cranford, are restored to the very organization they were challenging in court.
Still, that doesn’t mean those former members necessarily get to rejoin Qalipu First Nation.
LISTEN | Lawyer Keith Morgan explains the decision in the Qalipu First Nation membership court challenge:
CBC Newfoundland Morning9:44Lawyer Keith Morgan explains verdict in Qalipu membership supreme court case
The verdict is in, and it’s a win for people who lost their membership in the Qalipu Mi’Kmaq band…sort of. Keith Morgan is the lawyer representing the plaintiffs in the case.
Morgan said in his view, the FNI will need to assemble to review the implications of the ruling — and its implications for the Qalipu First Nation settlement agreement with the federal government.
“Essentially it goes right to the foundation of the band itself,” he said.
Qalipu First Nation was not named in the court challenge because it was the FNI that agreed to establish the band, Morgan explained.
The ruling did not make a finding of membership oppression against the federal government because Ottawa was not party to the FNI bylaw changes challenged in court.
Morgan said he believes the FNI and the federal government will be cautious about appealing.
CBC News has asked FNI lawyer Philip Buckingham and federal lawyer Kelly Peck for comment. There was no response as of publishing.
Qalipu First Nation Chief Brendan Mitchell isn’t talking about the case — he declined multiple interview requests from CBC News during the trial earlier this year and after the decision was released last week.
‘We couldn’t get anybody to listen’
The court challenge was backed by the Friends of Qalipu Advocacy Association, a group representing rejected Qalipu First Nation members and applicants.
Pauline Tessier, who co-founded the organization in 2013, said she was pleased — and validated — to see Marshall’s determination that FNI had oppressed members.
“The FNI, we knew that they were oppressing people, and we couldn’t get anybody to listen. Now at least the courts saw it, and they listened,” she said.
Tessier said she’ll be unpacking the decision with Morgan along with Friends of Qalipu Advocacy Association leadership and supporters in the coming days.
“Hopefully we’re going to continue on,” she said.
