Discriminated from elections based on marital status: Jackson-Littlewolfe v. Whitefish Lake First Nation #128

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 First Nation #128 (“Whitefish”) elections for Chief and Council because she is in a common-law relationship.

On April 28, 2021, the Justice Centre sent a letter to Whitefish, saying if Ms. Jackson-Littlewolfe was not permitted to stand as a candidate in the election, legal action would be taken. The letter informed Whitefish that in not permitting Ms. Jackson-Littlewolfe to stand as a candidate it would be participating in unconstitutional discrimination and urged that fair elections be held. Ms. Jackson-Littlewolfe sought a Court order striking down the prohibition of those in common law relationships running in elections and requested the Federal Court correct and stop the unconstitutional discrimination occurring at Whitefish.

Despite this letter, 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, are 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.

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”.

On June 14, 2022, Justice Paul Favel of the Federal Court heard Ms. Jackson-Littlewolfe’s legal challenge, along with the legal challenge brought by fellow band member Ms. Karen McCarthy. Whitefish has excluded Ms. McCarthy and other band members whose mothers or grandmothers had married persons without First Nations’ status from voting in 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 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 has continued to discriminate against its members who have status under Bill C-31.

On February 15, 2023, the Federal Court issued a decision striking down discriminatory election rules at Whitefish 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”). Justice Favel rejected arguments from Whitefish that its election policies were immune from Charter scrutiny on the basis of section 25 of the Charter. 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 First Nation 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,” stated Marty Moore, counsel for Ms. Jackson-Littlewolfe. “Ms. Jackson-Littlewolfe looks forward to having fair elections at Whitefish free of discrimination against band members.”

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