July 8, 2019 Corner Brook— It is fundamental to the effective operation of the Federation of Newfoundland Indians (FNI) and Qalipu First Nation (QFN) that we receive the best possible legal advice available in order to move forward to achieve the goals of our people and organizations. A recent decision by the Newfoundland and Labrador Supreme Court in Benoit v. Federation of Newfoundland Indians and Her Majesty the Queen of Canada determined that legal advice from our lawyers published on the internet, illegally and without permission, by persons unknown was no longer covered by the blanket of solicitor- client privilege. This issue is of concern to Qalipu First Nation and the Federation of Newfoundland Indians. The Financial Management By-Laws of the Qalipu First Nation Band clearly state in Exceptions to Disclosure, Section 54, that the General Manager, must refuse to disclose information; (b) legal opinions which are subject to solicitor-client privilege.
Such privilege is fundamental protection for individuals and businesses to comfortably seek legal advice outside the public domain. It means that conversations, phone calls, e mails, documents and discussions regarding confidential matters are private between a client and their lawyer. Solicitor-client privilege is an important legal concept that allows clients to trust their lawyers with private information. The Supreme Court of Canada has called it, “a principal of fundamental justice and civil right of supreme importance in Canadian law.” Such privilege is that of the client.
In deciding to appeal the decision of Justice Marshall, FNI/QFN are seeking to preserve a fundamental right necessary to the effective operation of our Band Council. QFN and the FNI must continue to have full and frank discussions with its legal advisors without fear that the information or advice might somehow become available to persons who might not share our stated goals. The appeal of Justice Marshall’s recent decision is limited to this single issue, and that issue only. While the Benoit case, in its initial intent, continues with our cooperation and respect, we are appealing the decision of Justice Marshall regarding our right to maintain the principle of solicitor-client privilege.
As many of you may know, in a previous Benoit decision Newfoundland Supreme Court Justice Jillian Butler required the FNI to communicate to the Minister that individuals named in Benoit remain on the Founding Members List created under the Settlement Agreement. We did as directed by carrying out Justice Butler’s Declaratory Order which required that a letter be written to the Minister demanding that the Plaintiffs in the Benoit Case be maintained as Founding Members. In the letter to the Minister we went further than consideration for the six plaintiffs stating that they were representative of a larger group who lost status and requested that all who lost status be reinstated. We received no reply from the Minister in response to demands. Neither the FNI nor QFM appealed Judge Butler’s decision on the Benoit case. Further, regarding earlier court decisions rendered in favor of the plaintiffs including Foster, House, Wells and Wells and Kennedy, neither the FNI nor QFN appealed the court decisions made in favor of those represented by these court cases and encouraged the Government of Canada to do likewise.
Protecting the principle of solicitor-client privilege, which is the only issue in response to the recent decision by Judge Marshall, is our fundamental right. It appears that at least one group calling themselves “Friends of Qalipu Applicants” is presenting our concern for protection of our solicitor-client privilege in a different and misleading context.
The Band Council of the QFN will continue to move forward to achieve the stated goals of our people and organization and will stand by the collective view that the preservation of the Band’s legal rights is essential to achieving this objective.