Federal Court declares amendments to Qalipu Mi'kmaq First Nation Agreement unenforceable, unreasonable

4 minute read
08 May 2018

Wells v. Canada (Attorney General), 2018 FC 483

On May 8, 2018, the Federal Court released its decision in a pair of companion cases involving a dispute over how the Federal Government and the Federation of Newfoundland Indians ("FNI") determined membership eligibility for the Qalipu Mi'kmaq First Nation ("QMFN"). 

When Newfoundland joined Confederation in 1949, no provision was made for the recognition of the province's Mi'kmaq peoples. In 2008, following decades of litigation and negotiation, the Federal Government and the FNI entered into an agreement (the "Original Agreement") to create the QMFN, a landless band whose members would be registered as "Indians" under the Indian Act. The Original Agreement set out eligibility criteria for membership in the band, which included the requirement that applicants self-identify as Mi'kmaq.

During the ensuing four-year enrolment process, over 100,000 applications for membership were received and the Federal Government publically expressed concern that the high number of applications raised questions about the credibility of the application process and the legitimacy of applicants.

To address these concerns, on July 4, 2013, the Federal Government and the FNI executed a supplemental agreement (the "Supplemental Agreement") which amended the application of the eligibility criteria for band membership without consulting those who had applied for membership in the QMFN and without seeking a ratification of those changes from the membership of the FNI.

Under the amended guidelines, only 3.2% of applicants who applied after September 22, 2011, namely, 2,254, succeeded in meeting the amended self-identification criterion; 57,820 applicants failed to meet the new evidentiary threshold and were denied Band membership.

The Supplemental Agreement also amended the Original Agreement so that those who were denied membership on the basis of the new evidentiary criteria could not appeal those denials to the Appeal Master.

In response to the perceived unfairness in the enrollment process, a not-for-profit organization was formed to advocate for the fair and equal treatment of applicants. The Mi'kmaq First Nation Assembly of Newfoundland (the "MFNAN") advanced two applications for judicial review in the Federal Court contesting the amendments to the Original Agreement and the specific denial of two applications for Band membership.

The Applicants, David Robert Wells and Sandra Frances Wells, both whose applications for Band membership had been denied, argued that the amendments to the Original Agreement were not made in accordance with the amendment process in the Original Agreement and were unreasonable on the basis that, among other things, they created arbitrary distinctions among applicants, lacked procedural fairness, and were discriminatory.

In his decision, Justice Zinn of the Federal Court found that Canada and the FNI had no authority to amend the appeal provisions of the Original Agreement and that they had unreasonably amended it to require that "objective documentary evidence" of self-identification pre-date the signing of the Supplemental Agreement. Accordingly, the Court ordered that the membership applications of both David and Sandra Wells be reconsidered by the Enrolment Committee.

Because the Wells' judicial reviews were advanced as test cases, the decisions will require the reassessment of all 57,820 applicants who were rejected on the basis of failing to meet the new self-identification criterion.

Gowling WLG represented the successful Applicants with a team that included Jaimie Lickers, Graham Ragan, Guy Régimbald and John Wilson.

Read our detailed case commentary.

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