Gowling WLG represents successful applicants.

Yesterday, the Federal Court released David Robert Wells v Canada (Attorney General) et al and Sandra Frances Wells v Canada (Attorney General) et al, reported together in 2018 FC 483 ("the Wells Applications").

In his decision, Justice Zinn of the Federal Court found that Canada and the Federation of Newfoundland Indians ("the Responding Parties") had no authority to amend the appeal provisions of the Qalipu Mi'kmaq First Nation Agreement and that the Responding Parties unreasonably amended the Agreement to require that "objective documentary evidence" of self-identification pre-date the signing of the Agreement. Accordingly, the Court ordered that the membership applications of both David and Sandra Wells be reconsidered by the Enrolment Committee.

Background

The Original Agreement

When Newfoundland joined confederation in 1949, no provision was made for the recognition of the province's Mi'kmaq peoples.

In June 2008, following decades of litigation and negotiation, the Federal Government and the Federation of Newfoundland Indians (the "FNI") entered into an agreement to create the Qalipu Mi'kmaq First Nation, a landless band whose members would be registered as "Indians" under the Indian Act ("the Original Agreement"). 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 four year enrolment process, over 100,000 applications for membership were received.

The Supplemental Agreement

In the fall of 2012, Canada began to publically express concern that the high number of applications raised questions about the credibility of the application process and the legitimacy of applicants. Canada and the FNI entered into negotiations to amend the evaluation of the eligibility criteria.

On June 30, 2012, the Responding Parties executed a 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 Original Agreement, an applicant could establish that they self-identified as a member of Mi'kmaq Group of Indians of Newfoundland - a necessary criterion for membership - by signing their application form. The Supplemental Agreement, however, amended the Guidelines to provide that if an applicant applied after the date the band was created, namely September 22, 2011, the applicant had to provide "objective documentary evidence" of self-identification predating June 2008.

The narrow list of permitted documents included a 2006 or earlier census form on which the applicant self-identified, a job application pre-dating the Original Agreement in which the applicant self-identified, or a newspaper article predating the Original Agreement reporting that the applicant had taken part in a Mi'kmaq ceremonial, traditional, or cultural activity.

Following the amendments, only 3.2% of applicants who applied after September 22, 2011, namely, 2,254, succeeded in meeting the amended self-identification criterion. With the imposition of the amended 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.

The Applications

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.

David Robert Wells, of Corner Brook, Newfoundland, is a veteran of the Canadian armed forces and the current Chair of the MFNAN. Mr. Wells learned of his Mi'kmaq heritage in April 2012 from a 1921 census document identifying his mother's family as Mi'kmaq. He applied for QMFN membership on October 1, 2012. Being unable to produce any of the required "objective documentary evidence," David's application for Band membership was denied in February 2017.

Sandra Frances Wells, of St. Anthony, Newfoundland, has known of her Mi'kmaq ancestry and lived a Mi'kmaq way of life since childhood. Sandra applied for Band membership on September 27, 2012. Being unable to produce any of the documents required to prove self-identification under the Supplemental Agreement, her application for Band membership was denied.

At the Federal Court, the Applicants 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.

The Federal Court's Decision

Justice Zinn agreed with the Applicants' submission that, under the circumstances, the Responding Parties lacked authority under the Original Agreement to remove an applicant's right of appeal. He therefore declared section 6 of the Supplemental Agreement invalid and unenforceable.

Although the Court ultimately held that the Responding Parties' imposition of the objective evidentiary evidence requirement was reasonable, and that the types of objective documentary evidence identified were themselves reasonable, it also agreed with the Applicants that the requirement that such evidence must pre-date the execution of the Original Agreement was not. The Court therefore set aside that temporal limitation.

Finally, Justice Zinn set aside the decisions of the Enrolment Committee denying David and Sandra Wells' membership and ordered that they be reconsidered in light of the findings described above.

Consequences for the Qalipu Membership Process

The Wells Applications represent a victory for the Applicants, both of whom will have their applications reconsidered on their merits.

Although the larger consequences of the Court's decision are as yet unclear, the decision appears to restore otherwise available appeal rights and expands the temporal limits on acceptable "objective documentary evidence," which can now be used where such evidence pre-dates the Recognition Order, not the date of the Original Agreement.

Jaimie Lickers, Graham Ragan, Guy Régimbald, and John Wilson of Gowling WLG's Indigenous Law Group were honoured to represent David and Sandra Wells in these matters through the generous support of the Mi'kmaq First Nations Assembly of Newfoundland.