Whitefish Lake Nation’s custom election regulations challenged in court as discriminatory

Two women on the Whitefish Lake First Nation in northern Alberta are waiting to hear if they have the constitutional right to participate in their band's election process. 

On June 14, Federal Court Justice Paul Favel heard joint submissions that argued customary election regulations did not trump Sect. 15 equality rights for Karen McCarthy or Lorna Jackson-Littlewolfe.

Section 15(1) of the Charter of Rights and Freedoms states, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

In the April 29 and May 6, 2021, elections, McCarthy was denied the right to vote, while Jackson-Littlewolfe was denied the right to run for office.

McCarthy, a registered member of Whitefish Lake First Nation, has been denied the right to vote in band elections for years because of her status as a Bill C-31 member. Bill C-31 received Royal Assent in 1985 and returned Indian status to First Nations women who married someone without status.

McCarthy appealed the ruling of her voting ineligibility to the Nation’s appeal committee but was denied.

Jackson-Littlewolfe, also a Nation member, had her nomination denied because she is in a common-law relationship.

Jackson-Littlewolfe also appealed to the Nation’s appeal committee and was denied despite a 2017 Federal Court decision that required Saddle Lake First Nation to develop a new process to determine eligibility for candidates for election.

Whitefish Lake First Nation 128 follows the customary election code set out by the Saddle Lake First Nation 462, implemented in 1955 and 1960. Although both First Nations have their own chiefs and councils, the federal government recognizes them under the single umbrella of Saddle Lake First Nation 125.

Legal counsel for both women noted that McCarthy and Jackson-Littlewolfe represented numerous members who had either Bill C-31 status or were in common-law relationships and who weren’t afforded the same rights as other Whitefish Lake First Nation members.

“We have a broken system and vulnerable people are being discriminated against in a very serious and perpetuating manner. People, members of the First Nation, are being deprived of their ability to participate in their right to self-government, and it’s being done so on very blatantly discriminatory basis,” said Marty Moore, counsel for Jackson-Littlewolfe.

Ian Bailey, counsel for Whitefish Lake First Nation, argued that inherent rights to self-government had never been extinguished by the band and under Sect. 25 of the Charter, the band’s collective rights took precedent over individual rights.

Sect. 25 states there is a “guarantee… certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada …”

According to Bailey, these two issues in question fall within “other rights” of Sect. 25.

“The Nation submits that whatever rights to self-government exist, whether they are derived from aboriginal, treaty, contractual or other sources, that they are s.25 rights or freedoms,” stated Bailey in his written submission.

According to the Saddle Lake Tribal Customs (or election regulations) no person in a common-law marriage is eligible for nomination. Bailey argued this Common Law Prohibition was a custom and went back to 1876 when band members accepted the teachings of the Methodist Church.

The customary practises of the Nation also do not allow those of Bill C-31 descent to participate in the governance processes. The custom referring to Bill C-31 was adopted in 1985.

“The assertion that there is somehow a custom to discriminate against women and descendants of women would be offensive if it was not so tragic because it is a perpetuation of colonial and paternalistic hierarchies that were embedded in the Indian Act,” said Orlagh O’Kelly, counsel for McCarthy.

Both O’Kelly and Moore are asking for declarations that their clients be able to vote and run, respectively, and for the 2021 election results be put aside and a new election held.

O’Kelly is also asking for an injunction permitting all Whitefish Lake band members the right to vote, regardless of C-31 status.

Moore is also asking for the Whitefish Lake First Nation to adopt Charter-compliant election regulations.

Both counsels have asked that the court retain jurisdiction over the matter until the discriminatory practises have been remedied or addressed, and the new election is held in compliance with the law.

However, Bailey offered a last-minute affidavit from Whitefish Lake First Nation band administrator Evan Steinhauer stating that a committee working since July 2021 had “drafted, revised, and finalized” drafts of both customary election regulations and membership code for review and “hopefully adoption by the Nation’s membership.”

Based on this information, Bailey told Favel it rendered the issues raised on behalf of McCarthy and Jackson-Littlewolfe “moot.” He asked that the band be allowed to take these steps to remedy the situation.

Both O’Kelly and Moore raised concerns that a process that had been in place for close to one year was only now being brought to the court’s attention.

O’Kelly also pointed out that while Steinhauer said the new codes would be voted on by membership, there was no guarantee that Bill C-31 members would be included in that vote.

Moore said the intention of chief and council to hold a “potential” referendum in winter was a “tepid commitment.”

“Our clients have to receive a remedy in a timely and appropriate fashion to address the discrimination that has affected our clients and, in fact, hundreds of members of the band,” said Moore.

Favel reserved his decision for a later date, however stating he could “appreciate the importance (of) this matter” and would provide a decision in a “timely manner.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.