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Northern Alberta First Nation welcomes ruling declaring election laws discriminatory

February 24, 2023

Decision restores voting power to generations of women at Whitefish Lake First Nation No. 128

The Federal Court decision was released on Feb. 15. (Andrew Lee/CBC)

CBC News: A legal victory for two Cree women has restored the right to vote for generations of women at an Alberta First Nation.

On Feb. 15, the Federal Court struck down two election rules at Whitefish Lake First Nation No. 128. One prohibited members in common-law relationships from candidacy; the other deemed thousands of women ineligible from voting because their mother, grandmother or great-grandmother had married a non-status man.

In a 69-page decision, Justice Paul Favel declared the Bill C-31 Voting Policy and the Common Law Marriage Prohibition were unconstitutional. The decision has been suspended for seven months to give Whitefish Lake time to adopt a membership code and amend its election regulations. “I’m going to be happy the day my mom can actually, finally vote,” said Karen McCarthy, who was not allowed to vote in the Whitefish Lake elections in April and May 2021 because she was of “Bill C-31 descent.”

Photo of Karen McCarthy
Karen McCarthy said she is disappointed the judge didn’t order a new election. (Karen McCarthy)

“My mom has never, ever been allowed to vote. And I haven’t myself, my children haven’t, so it has affected three generations in my family alone.”

Bill C-31 is an amendment introduced by the federal government in 1985 to retroactively restore registered status to Indigenous women disenfranchised under the old Indian Act by marrying someone without status.

‘Wanted a re-election’

But like many bands, Whitefish Lake argued that the amendment infringed on its Indigenous right to self-government and refused to restore voting rights.

McCarthy said Favel’s ruling didn’t go far enough for a First Nation where members’ rights are often violated. “I wanted a re-election because I feel that the amount of people that they suppress from voting would significantly change the outcome of the election,” McCarthy said in an interview with CBC News.  “Voter suppression is very real in First Nation communities that have poor governance, and ours is one of them.”‘

Favel’s decision noted that rules around ineligibility had been applied in an arbitrary manner and were not rooted in Whitefish customary law but rather the adoption of harmful colonial concepts. Favel’s ruling also addressed a constitutional challenge filed by Lorna Jackson-Littlewolf, who was removed as a candidate in the 2021 election because she was in a common-law relationship. 

Election code referendum

Whitefish program manager Rennie Houle, who described current election laws as outdated, ambiguous and discriminatory, welcomed the Federal Court decision. He said a referendum taking place this week asks members to approve a new election code, which was a year and a half in the making, and addresses those issues. Houle said the ruling exceeded his expectations because it recognized Whitefish Lake as an autonomous Treaty 6 Nation, rather than part of Saddle Lake.

While both communities have a chief and council, they are considered one nation under the Indian Act. Saddle Lake traditionally wields more power and wealth based on its larger population. “We’re very excited by the ruling that was made and the changes coming on with this new election bylaw,” Houle said. “This is one step toward Whitefish Lake First Nation developing their own path to self-determination, to how they want to govern themselves.”

This week’s referendum is being held unilaterally by Whitefish leadership. Results will be announced Friday.

Dennis Callihoo, a lawyer representing Saddle Lake, declined comment. CBC made several unsuccessful attempts to reach Saddle Lake leadership for comment.