A decision from the Court of Appeal of Newfoundland and Labrador has created an interesting situation in the ongoing legal battle over membership in the Qalipu First Nation, says the lawyer for one of the parties.
Keith Morgan represents a group of Mi’kmaw people in their claim that they were unfairly stripped of their membership in the band.
In June 2023, Justice Valerie Marshall of the Supreme Court of Newfoundland and Labrador ruled that Morgan’s clients, the plaintiffs in the case of Benoit vs. Federation of Newfoundland Indians Inc. (FNI), were entitled to a remedy in oppression against the FNI but not against Canada.
Marshall also ruled that the plaintiffs were not entitled to the remedy of rescission of the Supplemental Agreement.
Appeal filed
Shortly after, the FNI filed a notice of appeal of Marshall’s decision along with an application for a stay of proceedings but right before the stay application was heard the former board of the FNI was replaced.
The new board instructed its new counsel to discontinue the application for a stay of proceedings and to discontinue the appeal.
“So, it created an interesting situation when we got to court in October (2023) as to what the status of the proceeding was,” said Morgan.
Clear intention
In a decision released on April 10, Justice William Goodridge ruled that the new board still has control of the FNI and gave them the right to file to discontinue the appeal that had been filed.
While he did not give any power to the former board, Goodridge said it had a clear intention to appeal and noted the exceptional circumstances of the board’s replacement.
“Fairness dictates that this court extend the time to seek leave to apply for standing and to file a notice of appeal (or cross-appeal),” said Goodridge.
Goodridge gave the former members until April 30 to file an application seeking leave to be an intervenor in the matter.
'Convoluted'
Morgan said the application would then have to be heard in court and, if denied, Canada has the right to file an appeal within 10 days of the denial. It if is accepted, Canada has the further right to file a cross-appeal within 10 days of the acceptance.
“It’s a little bit convoluted,” said Morgan.
He said currently, the FNI is being directed by the current band chiefs of the nine constituted bands and the purpose of a director is to act in the best interests of the corporate body.
“It sort of does beg the question as to why anybody would want to appeal that. It will make it interesting to see what the nature of the application to appeal might be from a former board member.”
'Obligation'
Morgan said there is some anticipation that there will be an application for leave.
“The obligation of the former board of the FNI is to support the position of Canada in order to avail of their indemnity for their legal costs. So, if Canada tells them to appeal, then I guess they’re going to have to appeal. But the question is whether Canada would extend that to individuals coming forward to ask for leave to appeal of a decision from the court.
“If they do come forward, they’ve still got to provide an affidavit in support of their application and they’ll be subject to cross-examination on that,” said Morgan.
Phillip Buckingham is representing the former FNI members and told SaltWire he was unable to provide comment at this time.
Wait and see
For now, the latest decision means Morgan’s clients now have to wait to see what happens, but with no stay, he said the new board is entitled to proceed as they see fit in accordance with the corporate mandate.
“The new board is really unencumbered by this proceeding in the Court of Appeal at this stage,” he said.
“They can still proceed, and obviously, they would have the rights under the original agreement as to how they wish to exercise them with Canada. The effect of the court order was to instate them with the authority as directors so it’s up to them as to how they wish to exercise that authority.
“They may wait to see what the outcome is in the court proceedings when it’s full and finally resolved, which I think in some respects they’ve done so far, or they may decide to act upon the authority that they’ve been given,” said Morgan.
