Federal Court strikes down election rules that discriminated against band members based on their marital status and sex

EDMONTON: The Justice Centre for Constitutional Freedoms announced that Federal Court has issued a decision striking down discriminatory election rules at Whitefish Lake First Nation #128 (“Whitefish Lake”) that prohibited members in common law relationships from running for Chief and Counsel (the “Common Law Marriage Prohibition”) and prevented members whose mother, grandmother, or great grandmother were married to non-status persons from voting in band elections (the “Bill C-31 Voting Policy”).

Lorna Jackson-Littlewolfe, a Cree mother and grandmother, filed a constitutional challenge on May 14, 2021, after she was removed as a candidate in the 2021 Whitefish Lake elections for Chief and Council because she is in a common-law relationship. According to census data, there are hundreds of Whitefish Lake members in common-law relationships.

Another Cree woman, Karen McCarthy, represented by lawyer Orlagh O’Kelly, of Roberts O’Kelly Law + ADR, also filed a legal challenge against Whitefish Lake for prohibiting her and other band members from voting in the 2021 Whitefish Lake elections. Whitefish Lake prevents members from voting if their mothers, grandmothers or great-grandmothers had married non-status people, and consequently lost their status under the Indian Act. In contrast, the descendants of men who married non-status people are permitted to vote in Whitefish Lake elections. Men who married non-status individuals did not lose their status under the Indian Act. In 1985, Parliament passed Bill C-31 to change the Indian Act to remove this discrimination and restore status to the First Nation women who had married non-status people (and their descendants). Despite this, Whitefish Lake has continued to discriminate against its members who have status under Bill C-31.

The legal challenges of Ms. Jackson-Littlewolfe and Ms. McCarthy were heard together by the Federal Court on June 14, 2022.

On January 15, 2023, Justice Favel issued the decision of the Federal Court.  Justice Favel rejected arguments from Whitefish Lake’s arguments that its election policies were immune from Charter scrutiny on the basis of section 25 of the Charter which prevents Charter rights from abrogating or derogating “from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”. He further ruled that both the Common Law Marriage Prohibition and the Bill C-31 Voting Policy violated section 15(1) of the Charter which protects the rights of Canadians to be free from discrimination on the basis of their sex and marital status.  Justice Favel declared the Common Law Marriage Prohibition and the Bill C-31 Voting Policy to be of no force and effect, suspending the judgment for seven months to allow Whitefish Lake to adopt its own membership code and to amend its election regulations.

“As Canadians, First Nation members have an equal right to be free from discrimination on the basis of their sex or marital status and we are pleased that this Court decisions affirms that fact,” states Marty Moore, counsel for Ms. Jackson-Littlewolfe.  “Ms. Jackson-Littlewolfe looks forward to having fair elections at Whitefish free of discrimination against band members.”

Counsel for Karen McCarthy, Orlagh O’Kelly, can be reached at (780) 760-6752 or orlagh@okellylaw.ca.

Rob Louie of the Band Members Alliance and Advocacy Association of Canada, which assisted in facilitating these matters, can be reached at (250) 977-5439.