Federal Court declares rejection of membership applications for Canada's newest First Nation unfair

10 September 2015

Howse v. Attorney General of Canada and Federation of Newfoundland Indians 2015 FC 1063
Foster v. Attorney General of Canada and Federation of Newfoundland Indians 2015 FC 1065

On September 10, 2015, the Federal Court issued two important decisions regarding the enrollment process for the Qalipu Mi'kmaq First Nation of Newfoundland. The Qalipu Mi’kmaq First Nation 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.

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.

Gowlings served as pro bono counsel to the applicants Alex Howse and Sterling Clyde Foster on this matter. The applications were argued by Jaimie Lickers with support from Brian Crane, Graham Ragan and Guy Régimbald.


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