After an emotional 10-year battle to right what she feels was a historical wrong, Helen Darrigan says she’s content to let Newfoundland Supreme Court Justice Valerie Marshall make the final decision.
Darrigan spoke to The Telegram Wednesday afternoon, Feb. 1, after the conclusion of arguments for and against five Mi’kmaw plaintiffs who claim an unfair process stripped them of membership in the Qalipu First Nation band a decade ago.
Defence counsel for the Federation of Newfoundland Indians (FNI) and the Government of Canada called no witnesses and asked only scattered questions throughout the two-week trial.
“We’ll wait and see what the ruling is from Justice Marshall, but we hope that she will be fair and will see what we see — and what most people see, really — that the supplemental agreement fooled everything up for a lot of people and hurt a lot of people,” Darrigan said.
The supplemental agreement was a deal signed by Ottawa and the Federation of Newfoundland Indians in 2013 that rejigged the guidelines for membership in the band years after an agreement-in-principle had been ratified and many applicants had already received status.
Darrigan, who subsequently co-founded the Friends of Qalipu Advocacy Association with Pauline Tessier, said many of the thousands rejected were people who had self-identified as Mi’kmaw the longest and were long-serving members of the federation, which was originally formed in the 1970s to fight for recognition
“And they are the ones who are gone, and that is heartbreaking,” she said.
The case intertwines a variety of elements, including jurisdictional questions, since recognition of Indigenous status is a federal matter.
That was one of the key objections put forth by counsel for the Canadian government in a summation statement Tuesday.
But the Friends of Qalipu argument focused almost exclusively on the concept of corporate oppression, where the actions of corporate directors are seen to be deliberately unfair or damaging to its members or shareholders.
That’s what lawyer Keith Morgan argued was the case with an annual general meeting held in October 2009, where a special resolution was adopted to amend the bylaws of the Federation of Newfoundland Indians.
Morgan argued the resolution was not circulated among voting members of the federation within the required 21 days, and that the implicit purpose of it was to disenfranchise all other members of the FNI other than the board of directors.
When the new bylaws took effect in 2011, FNI board members officially became the 12 founding members of the Qalipu band council. All other members of the Federation of Newfoundland Indians were left to apply for status like anyone else, something Morgan argued was a targeted action against those members.
He said all subsequent actions were tainted by that fact.
Philip Buckingham, arguing for the Federation of Newfoundland Indians, said voting members were made aware of the technicality regarding notice and that they acted in good faith, knowing that the activities of the FNI would have to wind down once the Qalipu band was formed.
He also raised the issue of limitations under the Corporations Act, which states a charge of oppression has to be launched within six years of the action. The current suit was launched in 2018.
Morgan disputed that, saying membership suppression was not entirely clear even to those who were voting for the resolution, let alone members at large.
He also pointed out that a lawyer, Stephen May, informed the board at the time it could be open to a challenge of corporate oppression.
In 2018, results of the Qalipu membership committee’s final review of applications resulted in 13,479 founding members remaining on the updated list and about 5,000 added. But more than 10,000 founding members had their membership revoked. Altogether, more than 71,000 applications were rejected.
Darrigan says the way events transpired is a slap in the face to her fellow Mi’kmaw and to their ancestors.
“It’s hurt so many families and communities and caused people to mistrust one another,” she said.
“It’s led to a lot of lateral violence in communities among people and even among families.”
If the decision doesn’t go their way, Darrigan said, it’s an open question whether they will appeal.
But she said she is confident Marshall will make an informed decision, whether that comes in another month or several months.
“It’s a decision that won’t be made lightly, nor should it be.”
