The Justice Centre sent a letter warning of legal action if Ms. Jackson-Littlewolfe was not permitted to stand as a candidate in the election. The letter informed Whitefish that doing so would be unconstitutional discrimination and urged that fairs election be held. Despite this, Whitefish rejected Ms. Jackson-Littlewolfe’s candidacy based on a provision in old Election Regulations, which state that “[n]o person living in a Common Law marriage shall be eligible for nomination.” However, in a 2017 Federal Court decision, those Election Regulations were struck down for being inadequate and unfair, with the Court noting that “preventing nomination for election based on marital status alone would seem to be a discriminatory practice and unconstitutional.”
Whitefish continues to use the old Election Regulations, and in so doing, is discriminating against hundreds of band members who, like Ms. Jackson-Littlewolfe, in common law relationships.
In the view of the Justice Centre, Ms. Jackson-Littlewolfe and other band members like her have had their Charter right to be free from government discrimination on the basis of their marital status violated.
The Justice Centre represents Ms. Jackson-Littlewolfe in seeking a Court order striking down the prohibition of those in common law relationships running in elections on the Whitefish.
Ms. Jackson-Littlewolfe is not seeking monetary damages, but rather requests the Federal Court to correct and stop the unconstitutional discrimination occurring at Whitefish. She also seeks an order that new and fair elections be held.
Whitefish Lake First Nation is defending its actions primarily by claiming that they are shielded from court scrutiny by section 25 of the Charter, which states that the Charter “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”.
Justice Paul Favel of the Federal Court heard Ms. Jackson-Littlewolfe’s legal challenge on June 14, 2022, along with the legal challenge brought by fellow band member Ms. Karen McCarthy. Whitefish Lake First Nation has excluded from voting Ms. McCarthy and other band members whose mothers or grandmothers had married persons without First Nations’ status.
The decision of the Federal Court is pending.