On May 5th, 2020 a trio of court justices of the Newfoundland Court of Appeal issued a ruling on an appeal filed by the Federation of Newfoundland Indians (FNI), lead by Chief Brendan Mitchell of the Qalipu First Nation Band against the applicant advocacy group ‘Friends of Qalipu Applicants.’ This group sought out independent legal advice in 2017 and found six strong-willed Qalipu applicants who lost their Indian Status as a result of the 2013 Supplemental Agreement implemented by Qalipu and the Federal Government. The new court decision is another positive outcome for the ‘Friends of Qalipu Applicants,’ as court ruling goes in their favour.
A Fight Amongst Many
In the midst of several court cases against the Federal Government and the Federation of Newfoundland Indians by other groups and individuals, six determined applicants who felt they were wronged by the loss of their status (namely Shawn Benoit, Matthew Anderson, Marie Tapp Melanson, Bobbie Tapp Goosney, Paul Bennett, and Jennifer Sue Le Roux; collectively known as Benoit et al.) filed their own court case with Browne Fitzgerald Morgan and Avis of St. John’s, NL on February 2, 2018. This was against the parties involved in constructing the controversial Supplemental Agreement with its Point System. The Friends of Qalipu advocacy group who act as administrators for the funding of this case, has a large following instate Qalipu circles and has a very loyal base that is focused on fighting injustices imposed upon them.
Their Statement of Claim stipulates that as members of the Federation of Newfoundland Indians, the precursor to Qalipu Mi’kmaq First Nation, they were not afforded the possibility of voting on the Supplemental Agreement which tightened rules and some would say changed the criteria of membership within the band. That they say, was a direct violation of their rights as members of the Federation of Newfoundland Indians since the Supplemental Agreement was not ratified by its members. While the case primarily is concerned with the NL Corporations Act, it has many other facets.
For background on their initial filing, a court injunction was part of the Statement of Claim and was heard in the Supreme Court of Newfoundland in June 2018. While an injunction could not be issued against the Federal Government to halt the loss of Indian Status cards in August 2018, a strong declaratory order was issued in its place.
Then came April 2018.
Mysterious Website with FNI Documents Emerges
It was learnt during the November 2019 Appeal hearing that in April 2018 CBC Newfoundland and Labrador was in possession of a 2013 document that was highly relevant to negotiations by the FNI with the Federal Government over membership in the Qalipu band. The FNI through their lawyer threatened an injunction and the CBC backtracked. By May 19, 2018, a mysterious website entitled “Qalipu Secrets” appeared online. Listed on the unauthored website were several documents including the Indemnity Agreement, which Qalipu released to the public following concerns from the public who had seen it or heard about it.
Amongst the documents on the website were communications between the FNI’s lawyers to the FNI directors in 2009 and 2013 (the documents in question). These were particularly relevant to the creation of the band and the membership process. Soon the documents and the website were shared across social media platforms and spread like wildfire. These two documents were then included as evidence six months later in late November 2018 by the Friends of Qalipu’s counsel and filed with the courts.
Federation of Newfoundland Indians Asserts Privilege;
TAPP MELANSON & MITCHELL APPEAR
In response the FNI through its lawyers claimed Solicitor-Client Privilege over the documents despite the widespread availability of them. As a result, a hearing was scheduled between the two parties, which happened on May 9th, 2019. Marie Tapp Melanson stood as witness for ‘Friends of Qalipu Applicants’ and Chief Brendan Mitchell for the ‘Federation of Newfoundland Indians’ to speak to the facts of the case in St. John’s.
A Judge of the Supreme Court of Newfoundland and Labrador released her findings a month later and determined that both documents had been “subject to solicitor-client privilege held by the FNI” but such privilege had “been waived by the FNI” due to acquiescence (being passive). She had explained essentially that the FNI, knowing they were in the public domain, had done very little to stop the spread of the legal documents, in the face of the FNI’s argument that fighting the spread would be too expensive against an American-based website.
Interestingly, as of May 8th, 2020 the Qalipu Secrets website is still active, but without the two documents over which Privilege was asserted.
APPEAL EXCEPTION
Chief Brendan Mitchell had previously stated that he would never appeal a court decision that would benefit any Mi’kmaq group, however in response the band (as the Federation of Newfoundland Indians) did appeal in an effort to keep the documents from the public and thus the court case. Their reasoning included that the “FNI/QFN are seeking to preserve a fundamental right necessary to the effective operation of our band council.” Going on to explain they want to reserve the right to discuss with their counsel without fear that their discussions become public or used against them. “Protecting the principle of solicitor-client privilege…. is our fundamental right,” they concluded.
On November 19th, 2019, dozens of ‘Friends of Qalipu Applicants’ supporters filled the cramped Newfoundland Appeals Courtroom in St. John’s in support of their counsel and the people as the appeal was heard. Three court justices heard the arguments from both sides on the very specific facts of the case, and this week on May 5th, 2020 they released their findings.
ASPERSIONS
All three justices found that the Judge who initially ruled on the documents on June 6, 2019 was not in error in her decision. They also came to the same conclusion as the initial judge in paragraph 53 of the ruling which stated:
“The issue is brought into sharper focus by the fact that despite FNI’s knowledge that the documents were available on the internet and had in fact been accessed by Benoit, FNI did not advise its counsel in this litigation of the situation. One would have expected FNI to notify its counsel in this litigation of the availability of the documents on the website and their subsequent wide distribution. This is especially curious given that the documents appear to be highly relevant and given that FNI learned of their disclosure on the Qalipu site after FNI’s experience with CBC. The fact that different counsel for FNI could have different points of view on how to handle the matter is not material, for it is not about what different lawyers would or would not do. What is material is FNI’s decision not to assert privilege in full knowledge of the breach. Instead of considering its own actions, FNI’s approach appears to be an attempt to cast aspersions on Benoit’s counsel.”
Aspersions of course is defined as “an attack on the reputation or integrity of someone or something.”
The appeal by the FNI was dismissed and court costs awarded to Benoit et al. The ‘Friends of Qalipu Applicants’ group hopes to continue to an ultimate trial where they will attempt to argue for striking the Supplemental Agreement altogether.
Disclaimer: Errors and omissions excepted. Please refer to the original court documents for all context and details of this ongoing court case. The most recent decision is located here: Court Ruling May 5, 2020
Further Reading:
Friends of Qalipu Applicants Website
‘Thorny facts’ in Benoit case warrant cautious approach, judge rules: The Telegram
