Plaintiffs challenging Qalipu enrolment process faced membership oppression, rules Supreme Court

The plaintiffs challenging the Qalipu First Nation enrolment process faced membership oppression, according to a Newfoundland and Labrador Supreme Court decision released Monday.

Justice Valerie Marshall did not rescind the 2013 supplemental agreement, which changed the membership criteria in Qalipu First Nation, but did order other remedies for the five plaintiffs in the case.

"The majority of factors weigh in favour of finding that the plaintiffs' reasonable expectations were violated by the manner in which the FNI conducted its affairs," she said in an 80-page written decision.

The decision comes nearly five months after a two-week trial focused on the validity of the 2013 supplemental agreement between the federal government and the Federation of Newfoundland Indians, the group that formed Qalipu First Nation.

That agreement changed the enrolment process for the Mi'kmaq band established in 2008, requiring applicants and Qalipu band members to submit evidence proving they met enrolment criteria through a complex points 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.

Dozens gathered at Supreme Court in St. John's for the trial, many hoping for a second chance at membership in Qalipu First Nation. That second chance does not materialize with Marshall's decision.

The Friends of Qalipu Advocacy Association, who brought the challenge forward, asked for rescission of the 2013 agreement, a re-evaluation of all applications for membership in Qalipu First Nation and a declaration that the agreement constituted membership oppression.

Marshall declined to order a re-evaluation of all applications for membership in Qalipu First Nation.

However, Marshall ordered the FNI, which is currently made up of Qalipu First Nation leadership, to come to an agreement with the federal government to reassess the applications of the five plaintiffs in the case under the original criteria but her decision is limited to those five plaintiffs.

"It would neither be just nor equitable to undo the supplemental agreement, which has already been performed," she said.

FNI conduct 'burdensome, harsh and wrongful'

Marshall found the FNI failed to comply with its own bylaws and procedures during the complex chain of events that led up to the establishment of the 2013 agreement.

She characterized the conduct of the FNI as "burdensome, harsh and wrongful."

The plaintiffs in the court challenge were members of the FNI before Qalipu First Nation was established in 2011. According to Marshall, the FNI did not but should have gotten the consent of the plaintiffs before changing its bylaws in order to enter into the 2013 agreement with the federal government.

"I do not accept the characterization of what transpired as a mere technical misstep," she said.

Marshall ordered the FNI to reinstate its original bylaws, which means the plaintiffs would regain membership in the FNI. The plaintiffs are also entitled to legal costs and possible compensation but that figure is undetermined.

Canada had 'financial concerns' about enrolment numbers, says judge

The federal government was also named in the statement of claim, but Marshall said the FNI alone is responsible for its failure to follow its bylaws.

Still, Marshall said she believes the federal government pressured the FNI to enter into the supplemental agreement when thousands more people applied for membership in Qalipu First Nation than expected.

"In my view, the true reason Canada wanted the supplemental agreement was likely due to financial concerns arising from the unexpected volume of applications," she said.

She disagreed with federal lawyer Kelly Peck's assertion that the provincial Supreme Court did not have jurisdiction in the case.

CBC News has asked the lawyers for the Friends of Qalipu, the FNI and the federal government for comment.

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