Cree women file court challenges against Whitefish Lake First Nation #128 for election discrimination

EDMONTON: The Justice Centre for Constitutional Freedoms and the Band Members Alliance and Advocacy Association of Canada announce that two Cree women have commenced separate legal challenges in Federal Court against the Whitefish Lake First Nation #128, located near St. Paul, Alberta, for unconstitutional discrimination against candidates and voters in its recent Chief and Band Council elections.

Lorna Jackson-Littlewolfe, represented by the Justice Centre for Constitutional Freedoms, filed a constitutional challenge in Federal Court because she was denied eligibility as an election candidate in the recent Whitefish Lake First Nation #128 Elections 2021 for Chief and Council based on her marital status. Ms. Jackson-Littlewolfe (pictured at left), a Cree mother and grandmother, is in a common law relationship and was prohibited from being a candidate for election on that basis.

The Justice Centre already sent a letter warning of legal action if Ms. Jackson-Littlewolfe was not permitted to stand as a candidate in the election, challenging this unconstitutional discrimination and requesting that a fair election be held. The rejection of Ms. Jackson-Littlewolfe’s candidacy is based on a provision in old Election Regulations, which states 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.”

Despite this fact, Whitefish Lake First Nation is continuing to use the old Election Regulations, and in so doing, is discriminating against potential candidates such as Ms. Jackson-Littlewolfe based on their marital status.

Karen McCarthy (pictured at right), joined by the Band Members Alliance and Advocacy Association of Canada (BMAAAC), being represented by Edmonton lawyer Evan C. Duffy, also filed a legal challenge against Whitefish Lake First Nation #128. Ms. McCarthy and BMAAAC have commenced court proceedings against Whitefish Lake First Nation #128 due to its long-standing practice to refuse “Bill C-31” members the right to vote in elections.

In 1985, Bill C-31 received royal assent and began the process of remedying decades of discrimination by permitting certain categories of individuals to regain their lost Aboriginal status. Prior to this, for example, women who held status and married someone without status lost their status rights. Men with status who married someone without status did not lose their own status.

Ms. McCarthy is one of the Whitefish Lake First Nation #128 members that has been discriminated against because her mother lost her status when she married a non-Indigenous man. Whitefish Lake First Nation #128 refuses to allow such members to vote. Therefore, Ms. McCarthy was refused the right to vote in the recent 2021 Elections for Chief and Council.

In the view of the Justice Centre and BMAAAC, both Ms. Jackson-Littlewolfe and Ms. McCarthy have had their equality Charter rights infringed as it relates to this recent election and the discrimination they have encountered. Under the Charter, 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” on the basis of marital status and sex.

Ms. Jackson-Littlewolfe is seeking a Court order striking down the prohibition of those in common law relationships from running in elections on the Whitefish Lake First Nation #128 as unconstitutional.

Ms. McCarthy is seeking a Court order striking down the practice of not permitting Bill C-31 members the right to vote as discriminatory and contrary to section 15(1) of the Charter.

Both of these legal cases are not seeking money, but rather request the Court to correct and stop the unconstitutional discrimination occurring at the Whitefish Lake First Nation #128 and order that new and fair elections be held.

“First Nations individuals have a Charter right to equal treatment by their First Nations’ governments, without discrimination based on their marital status,” states Marty Moore, Justice Centre Staff Lawyer and Co-Counsel for Ms. Jackson-Littlewolfe. “Our client wants this discriminatory practice against electoral candidates on the Whitefish Lake First Nation ended, and wants fair elections held.”

BMAAAC president, Rob Louie, went further to add, “The discriminatory practices against these Indigenous women are being carried out openly and unabashedly by the Whitefish Lake First Nation leadership. It’s 2021 and this kind of internal systemic wrongdoing stops now.”