CCLA to NB: Do not Deny Students Access to Their Schools

November 4, 2020

Honourable Hugh J. Flemming, Q.C
Minister of Justice and Public Safety
Government of New Brunswick
Chancery Place, Floor 2
P.O. Box 6000
Fredericton, NB E3B 5H1

RE: Wrongful Application of Emergency Order contra Listuguj First Nation

Dear Minister Flemming,

I am writing on behalf of the Canadian Civil Liberties Association (CCLA) to object to your government’s unlawful treatment of students from the Listuguj First Nation who attend Sugarloaf Senior High School. The law requires that those students (and their teachers) be able to attend that school, yet Government of New Brunswick officials are frustrating the law, by denying those students entry into its province. Staff that work at Sugarloaf, living in Listuguj, are apparently permitted to enter to the province and go to Sugarloaf, even though the students they are hired to support are not permitted).

As of this writing, the Listuguj First Nation has been advised by the government that almost all of the Sugarloaf students are forbidden to cross the Quebec/New Brunswick border, for the purposes of attending school. Although students were permitted to enter New Brunswick and attend school for the first few weeks of September, the students were subsequently told that they were permitted only to “attend” Sugarloaf remotely. Physical attendance at the school was forbidden. It is our understanding that this impacts over 90 students.

What Listuguj First Nation is being told by your Government is contrary to your own law. We have reviewed the government’s most recent emergency order, signed by you on October 22, 2020. That order prohibits unnecessary travel into New Brunswick, but creates an exception for “residents of Listuguj First nation and Point-a-la-Croix, Quebec,” at paragraph 9(c) of that Order:

“at Campbellton, residents of Listuguj First Nation and Point-a-la-Croix, Quebec who have pre-registered and been approved as per paragraph 6 are permitted to enter New Brunswick to attend school in New Brunswick or to obtain essential goods and services not available to them in their own community, without self-isolation, unless that person has travelled outside those regions and outside New Brunswick in the previous 14 days and/or has symptoms of COVID-19″.

In addition, the information on the government’s travel registration website states that:

“All previously approved registrations to and from Avignon MRC (including Listuguj First Nation and Pointe-à-la-Croix, Que.) for non-essential single trips and multi-day registrations were no longer valid as of noon, September 25, 2020, with the exception of multi-day registrations approved for the transportation of elementary and secondary students from Listuguj First Nation and Pointe-à-la-Croix, Que. and those issued for work, medical care and childcare/child custody.***”

The law sets forth the clear intention to allow students from the Listuguj First Nation to enter the province to attend school. However, we are advised that this law is not being followed. The Chief of Listuguj has been advised by provincial government representatives that students will not be permitted to cross at the provincial checkpoint.

Oddly, your Government is letting Sugarloaf staff members who are (Quebec) residents of the Listuguj First Nation (employed by virtue of an Enhancement Agreement) into the province. Staff have been told they are permitted to cross into the province to attend Sugarloaf. Given that the students they are hired to support are not permitted to attend, those staff members have not been doing so. We also understand that elementary and middle school students from the First Nation are still permitted to cross, but that their numbers are much smaller than the secondary students that are impacted.

Notwithstanding the challenges of governing during a pandemic, unlawful and unconstitutional actions cannot be sustained. These kinds of arbitrary and patently unreasonable distinctions between residents of different provinces and First Nation communities in Canada require immediate correction.

By singling out First Nation students, in this case, your Government risks being accused of racial discrimination and violating equality guarantees under our Constitution. Our concerns are heightened in this case because the restrictions are impacting a community of students that traditionally face marginalization and singles them out for differential treatment. Moreover, we understand that the remote learning option is not functioning in a way that provides the Listuguj First Nation students with learning comparable to what they would receive in-person at the school.

Finally, while the practice of denying the students entry is troubling enough, the fact that this is without lawful authority makes it necessarily unconstitutional and contrary to our constitution’s premier guidepost: the rule of law. Indeed, we understand that the government’s decision here has not even been communicated to the First Nation in writing, but was instead communicated orally by the Deputy Minister and Assistant Deputy Minister, and then simply followed by a government press briefing. This is the epitome of governing outside the law. It may also have the effect of erecting unnecessary barriers for those seeking judicial review. The Court cannot review a law that does not exist. The corollary to this is that you are inviting arbitrary responses to your arbitrary application of the law.

We strongly urge you to ensure that the practice “on the ground” reflects the currently binding legal order that allows Listuguj First Nation students the ability to enter New Brunswick and attend their school. We look forward to your prompt reply.

Sincerely,

Cara Faith Zwibel
Director, Fundamental Freedoms Program