The Federation of Newfoundland Indians is appealing a recent court ruling involving its attempt to recover sensitive legal documents the group feels should not be in the public domain.
The federation is the entity that preceded the Qalipu Mi’kmaq First Nation Band and was supposed to be superseded by Qalipu after the band’s official formation.
Because the band’s controversial enrolment process has led to a series of legal battles over its legitimacy and fairness, the federation continues to exist as a legal entity comprised solely of the elected members of the Qalipu council.
One of those legal battles is the case known as Shawn Benoit et al, which lists six plaintiffs who are asking the Supreme Court of Newfoundland and Labrador to rescind the supplemental agreement the federation entered into with Canada in 2013 and which led to the reassessment of all applications for enrolment in the band.
The plaintiffs are also seeking to have their applications, along with others, rejected because of the supplemental agreement, re-evaluated in accordance with the original agreement that led to the establishment of the band’s initial founding members list in 2009.
Last year, the court ordered that the names of the six plaintiffs were to remain on the founding members list, which was updated last August, until the validity of the supplemental agreement could be determined.
In the most recent developments in the case, the federation asked the court to declare two documents the plaintiffs have in their possession as belonging solely to the Federation of Newfoundland Indians and/or the Qalipu Mi’kmaq First Nation Band and that they should not be possessed by anyone else.
The federation and the band contend those two documents contain information that should be protected by solicitor-client privilege.
The two documents are a letter from lawyer Stephen May to the federation, dated July 6, 2009, and correspondence dated June 19, 2013 from the law firm Cox and Palmer to Brendan Sheppard, who was the Qalipu chief at that time.
In her decision on the matter late last month, Justice Valerie Marshall agreed both documents contained legal advice that constitutes solicitor-client privilege. However, she also ruled the federation and Qalipu had waived that privilege because neither entity took immediate action to retrieve the sensitive documents from the public domain after becoming aware they were being circulated.
The 2013 document had been provided to a member of the media, current Qalipu Chief Brendan Mitchell told the court. Mitchell said Qalipu was going to seek an injunction against publication of that document, but the media outlet agreed to refrain from publishing it and the injunction was never sought.
Mitchell said he subsequently received an email from one of the plaintiffs, Marie Tapp Melanson, that included copies of both documents and found out the following day they had been posted on a website.
There was no evidence of who posted them, let alone if it had been either of the plaintiffs.
Melanson testified she had come across the documents while searching the Internet and had forwarded them to Mitchell and the Qalipu council as an expression of her disgust. She said the documents give an indication of why the federation pursued the supplemental agreement option.
Qalipu turned the matter over to its lawyer, but concerns over the expense and effectiveness of seeking injunctions to have the documents removed from the website led to no immediate action being taken to try and retrieve the documents from the website.
Marshall also noted the federation took no action after becoming aware the plaintiffs were in possession of the documents as there was never any reply to the emails sent by Melanson.
The Federation of Newfoundland Indians has appealed the decision of the Supreme Court.
Supreme Court rules Federation of Newfoundland Indians did little to stop sharing of its sensitive legal documents
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