Proceedings of the Standing Senate Committee on
Aboriginal Peoples

Issue 7 - Evidence - June 3, 2014


OTTAWA, Tuesday, June 3, 2014

The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Order, met this day at 9:33 a.m. to give consideration to the bill.

Senator Dennis Patterson (Chair) in the chair.

[English]

The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, via CPAC or on the Web. I am Dennis Patterson from Nunavut. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada, generally. This morning, we are hearing testimony on a specific order of reference authorizing us to examine and report on Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order.

We will hear from Aboriginal Affairs and Northern Development Canada, the Department of Justice Canada and the Federation of Newfoundland Indians. The Qalipu Mi'kmaq First Nation, the band that is the subject of this bill, is a member of the Federation of Newfoundland Indians and has chosen to be represented at this appearance by that organization.

Before proceeding to the testimony, I will ask the members of the committee to please introduce themselves.

Senator Moore: Good morning. Wilfred Moore from Nova Scotia.

Senator Dyck: Good morning. Senator Lillian Dyck from Saskatchewan.

Senator Lovelace Nicholas: Senator Lovelace from New Brunswick.

Senator Meredith: Senator Don Meredith, Ontario.

Senator Wallace: John Wallace, New Brunswick.

Senator Raine: Nancy Greene Raine from B.C.

Senator Tannas: Scott Tannas from Alberta.

The Chair: Members of the committee, help me to welcome our first witness from AANDC, Andrew Saranchuk, Assistant Deputy Minister, Resolution and Individual Affairs Sector. With him at the table is his colleague from the Department of Justice Canada, Martin Reiher, Acting General Counsel and Acting Director, Operations and Programs, Legal Services.

We look forward to your presentation, after which will be questions from senators. Please proceed.

Andrew Saranchuk, Assistant Deputy Minister, Resolution and Individual Affairs Sector, Aboriginal Affairs and Northern Development Canada: I would like to thank the committee for providing the opportunity to examine why Bill C-25, the Qalipu Mi'kmaq First Nation act, is needed to protect the integrity and credibility of the membership of the Qalipu Mi'kmaq First Nation.

I'm the Assistant Deputy Minister responsible for the Resolution and Individual Affairs Sector for Aboriginal Affairs and Northern Development Canada. This sector includes the area that works on the Residential Schools Settlement Agreement, the Secure Certificate of Indian Status, the Office of the Indian Registrar, and Indian Moneys, Estates and Treaty Annuities. It is also responsible for the implementation of the Qalipu Mi'kmaq First Nation enrolment process.

As stated, I have with me today my colleague from Justice Canada, Martin Reiher, Acting General Counsel and Acting Director. He advises the department on this file.

The first part of my remarks will provide some background on the 2008 agreement for the recognition of the Qalipu Mi'kmaq band, which provided for the creation of the Qalipu Mi'kmaq First Nation as a landless band. I will also provide some background on the subsequent 2013 supplemental agreement between the Federation of Newfoundland Indians and Canada. The second part of my remarks will provide a very brief update on the enrolment process under the 2013 supplemental agreement to date. Finally, I will provide an overview of the proposed Bill C-25 and outline its main features.

[Translation]

In 1949, when Newfoundland joined Confederation, its First Nations were not recognized under the Indian Act. In the early seventies, the Federation of Newfoundland Indians was created by the Mi'kmaq of Newfoundland with the mission of seeking their recognition by the federal government. In 1989, the Federation of Newfoundland Indians brought a lawsuit against Canada, seeking Indian Act recognition.

In 2007, the government and the Federation of Newfoundland Indians reached an agreement in principle to settle this court action, which led to the 2008 agreement, setting out a process for the recognition of the Mi'kmaq of Newfoundland as a band under the Indian Act.

During the negotiations for the original 2008 agreement, both parties intended that founding membership in the Qalipu Mi'kmaq First Nation would be granted primarily to persons living in or around the Newfoundland Mi'kmaq communities named in the agreement.

However, individuals living outside these communities could also become members, although the intent of the parties was that non-residents would be required to have maintained a strong cultural connection with a Newfoundland Mi'kmaq community.

As part of the 2008 agreement, an arm's length enrolment committee was established to assess applications for membership in the new band. It is comprised of two representatives from Canada, two from the Federation of Newfoundland Indians and an independent chair. The enrolment committee is responsible for assessing whether applicants meet the eligibility criteria to be enrolled as members of the Qalipu Mi'kmaq First Nation.

[English]

The four criteria for founding membership eligibility are as follows: Canadian Indian ancestry; membership or descent from a member of a pre-Confederation Mi'kmaq community; self-identification as a member of the Mi'kmaq group of Indians of Newfoundland; and acceptance by the M'ikmaq group of Indians of Newfoundland, based on a demonstrated and substantial cultural connection.

The initial projection was that the band's population would be approximately 8,700 to 12,000 individuals, based on membership data provided by the Federation of Newfoundland Indians, an assessment of historical census data, and other estimates. The Qalipu Mi'kmaq band was created by order-in-council on September 22, 2011. To date, 23,877 Qalipu members have been registered.

The 2008 agreement set November 30, 2012, as the deadline to apply for membership in the band. As of that date, approximately 101,000 applications were received. This included approximately 46,000 applications received during the last three months prior to the application deadline. This number of applications far exceeded the expectations of the parties.

Besides the surge of applications, other issues emerged in the implementation of the enrolment process, including the fact that it was not possible for the enrolment committee to review all of the applications within the time limits provided for in the 2008 agreement. In addition, it became clear that the original guidelines for the assessment of applications did not provide sufficient clarity and detail to reflect the original intentions of the parties.

To address these issues, Canada and the Federation of Newfoundland Indians entered into discussions in autumn 2012. This led to the parties announcing a supplemental agreement in July 2013. The original agreement is still fully in effect; however, the 2013 supplemental agreement resolves a number of issues that had prevented the conclusion of the process for enrolment in the First Nation. At the same time, it ensures that all applicants will be treated fairly and equitably, and ensures the integrity of the enrolment process.

The supplemental agreement does not change the enrolment criteria set out in the 2008 agreement but rather clarifies the evidentiary requirements related to self-identification and community acceptance criteria. In particular, it extends the timelines for review of applications, ensuring that all previously unprocessed applications can be reviewed; it ensures that all applications received during all phases of the enrolment process, except those previously rejected, will be assessed or reassessed; all those whose applications will be assessed or reassessed will be sent a written notification and will be able to provide additional documentation; it provides clarity regarding the assessment of an applicant's self-identification as a member of the Mi'kmaq group of Indians of Newfoundland; and it provides guidance related to an individual's acceptance by the Mi'kmaq communities of Newfoundland, particularly as it relates to individuals residing outside of the Mi'kmaq communities listed in the agreement.

[Translation]

This leads me to providing you with a brief overview of the process under the 2013 supplemental agreement to date.

In November 2013, the enrolment committee sent one of two letters to all of the approximately 100,000 applicants for the Qalipu Mi'kmaq First Nation, except those whose applications were previously rejected. These letters either indicated that their applications were valid or invalid, based on minimum requirements set in the 2008 agreement.

Approximately 6,000 applicants received a letter advising them that their applications were invalid and had been denied. They were also advised that this determination could not be appealed, pursuant to the 2013 supplemental agreement.

Approximately 94,000 applicants received a letter advising them that their applications were valid and would be assessed or reassessed. These applicants had until January 30, 2014, to provide additional documentation in support of their applications. This deadline was further extended to February 10, 2014, in recognition of the fact that extreme weather conditions may have affected some applicants' ability to obtain the documentation.

At this time, the enrolment committee, supported by the department, has been in the process of assessing the 94,000 valid applications. It is estimated that the review and consideration of valid applications will be completed by the fall of 2015, after which individuals will be informed of the results of the assessment or reassessment of their application. This will be followed by an appeal period.

[English]

This background brings me to the third part of my remarks, the need for Bill C-25, the Qalipu Mi'kmaq First Nation Act.

The proposed legislation is technical in nature and will enable the Governor-in-Council to amend the schedule to the existing recognition order to implement the supplemental agreement. In particular, it will enable the Governor-in-Council to remove the names of those individuals who are found not to be entitled to be members of the Qalipu Mi'kmaq First Nation.

While the Governor-in-Council has the authority in the Indian Act to declare a body of Indians to be a band for the purposes of the act, there is no express authority in the act to amend an order establishing a band. This means that while there is likely authority to add names to the schedule of the recognition order, it is unclear whether the act currently allows the Governor-in-Council to remove names from the schedule.

It is possible that some individuals may lose their Indian status as a result of the reassessment of their applications. At that point, those individuals would no longer have access to programs and services provided to registered Indians. However, during the review process, there will be no change in Indian status for existing members of the Qalipu Mi'kmaq First Nation. In other words, while the process is under way, individuals who are currently registered under the Indian Act will retain their Indian status and therefore their access to programs available to registered Indians.

Clause 4 of the bill has attracted some attention. It provides certainty that no compensation or damages will be paid, either by Canada, the First Nation, or any other party, to those individuals who are ultimately determined not to be members of the Qalipu Mi'kmaq First Nation. However, this clause does not prevent individuals from appealing the enrolment committee's determination under the agreements, nor does it prevent court challenges to the agreement itself or to exclusion from the schedule to the Qalipu Mi'kmaq First Nation Band Order.

Similar clauses are found in both the 1985 legislation removing discrimination from the Indian registration provisions, commonly referred to as Bill C-31, and the recent Gender Equity in Indian Registration Act, commonly referred to as Bill C-3.

In conclusion, the legislation is an essential part of the enrolment process in order to fully implement the agreements and follow through the original intentions of the parties. It ensures that the Governor-in-Council is properly authorized to carry out the last step in the process, which is the issuance of a new founding members list to modify the existing one. I hope we have clarified the intent and scope of Bill C-25. We would now be pleased to answer any questions the committee may have.

The Chair: Maybe I'll start off. I'm sure my colleagues will have some questions.

I know there has been some suggestion that Bill C-25 is changing the membership criteria set out in the 2008 agreement establishing the Qalipu Mi'kmaq First Nation, but I'm not sure that's the case. I wonder, for the benefit of the committee, if you can please clarify the record on the intent of the bill in relation to the original enrolment criteria?

Mr. Saranchuk: Thank you, Mr. Chair. I can clarify that the bill itself does not change the original enrolment criteria. I can go further than that and clarify that the supplemental agreement from 2013 did not itself change the criteria for enrolment that was set out in the 2008 agreement. What the 2013 agreement did, however, was clarify the requirements of the application process particularly with respect to documentary requirements. But to go back to the main question, the bill itself does not change the enrolment criteria.

The Chair: Thank you. Another question I'd like to ask is about the entitlements of membership in the Qalipu Mi'kmaq First Nation. Could you please outline what would be the rights and benefits due to a member of the Qalipu Mi'kmaq First Nation?

Mr. Saranchuk: I'll start off and likely call upon my colleague, Mr. Reiher, to supplement. There are a number of rights and benefits that flow from membership in any First Nation. There is the ability to access non-insured health benefits that are run by Health Canada. There is post-secondary education, which is generally administered by bands across the country. There is the right to vote in band elections. The Qalipu Mi'kmaq First Nation is a landless band so it doesn't have some of the same entitlements or benefits that relate to a reserve as other bands, but I think those are primarily the ones, subject to Mr. Reiher supplementing my response.

Martin Reiher, Acting General Counsel and Acting Director, Operations and Programs, Legal Services, Department of Justice Canada: Thank you. Mr. Saranchuk has presented the main benefits to individual members. What we could add is that the band as a collective entity will also have some benefit in terms of development funding, for example. So these would be the essential benefits.

Mr. Saranchuk: Mr. Chair, if I might just supplement, to be clear — although I think my remarks were relatively clear — during the enrolment process, which is expected to run until the end of summer 2015, any current member of the band, no matter what the result will be, will retain their ability to access those benefits as they currently do. Thereafter, if an individual were not to be found on the list afterwards, the government would not seek to reclaim any benefits that individual had received in the interim.

The Chair: I'll turn to the deputy chair, Senator Dyck.

Senator Dyck: My first question will be with regard to those individuals who may lose their status. From my understanding, the deadline is August 2015, and then after that no more applications will be taken in, but how many people are on the roll now as registered Indians for this particular group?

Mr. Saranchuk: If I may just clarify, the application deadline is the same as the one in the original agreement and was not touched, so the application deadline expired on November 30, 2012. No other applications were accepted after that date. One of the main issues that the supplemental agreement wrestled with was what to do with the fact that there were 101,000 applications received prior to that date. Under the original 2008 agreement, the enrolment committee was to cease functioning a little bit after that date, thereby leading to a situation whereby approximately 70,000 applications, if one adhered to the original agreement, would have gone unprocessed unless the parties had stepped in to modify or done something.

If I could just go back to the second part of your question, honourable senator, the number of registered members currently in the First Nation is 23,877.

Senator Dyck: Do you have any insights into whether there is a likelihood that some of those people will lose their status? Do you have any kind of preliminary research or anything that would indicate what the possibility is? I presume that those nearly 24,000 people might be feeling a little uneasy about what the future holds for them.

Mr. Saranchuk: Yes. There is no preliminary assessment as to what the future might hold. I guess I would want to emphasize that the enrolment committee, which is made up of two members from Canada, two members from the Federation of Newfoundland Indians, and one independent chair, makes its decisions independent of the government, and they will be assessing these applications or reassessing them as the case may be. It will arrive at its own decisions or recommendations for the list. I suppose that's really all I can say.

Senator Dyck: I'll just have one second question for this round, and that goes to page 5 of your presentation, where you're talking about the criteria for founding membership. My question would be: How similar, how compliant, are these criteria compared to what's contained under Bill C-31 and Bill C-3?

Mr. Saranchuk: I'm going to have the initial crack at this question and then turn it over to my colleague from the Department of Justice Canada. The key difference that is important to understand here, when one compares to Bill C-31 or Bill C-3, is that those were changing or modifying or clarifying the actual requirements of the Indian Act vis-à-vis registration. So what's occurring here is that a group is being created. It's a founding group. It's a charter group being created, not independent of the Indian Act, but you identify the charter group. You assess, therefore, the applications, which is what's going on now, and, thereafter, the Indian Act enrolment provisions take over. I guess, to try and boil it down, you're creating a group not independent of the Indian Act but outside, I guess, of the Indian Act rules in the sense that you have to identify who the founding members are, which is different from Bill C-31 and Bill C-3. I'd better let my colleague try to explain that.

Mr. Reiher: Thank you, Mr. Chair. Indeed, it's important to understand that the Indian Act applies to individuals' entitlement to registration once a group has been recognized as an entity with a relationship with the federal Crown. For example, this can be compared to the treaty making in the West in the 1800s. In the situation of the Mi'kmaq of Newfoundland, they never entered into a collective relationship with the federal Crown. Therefore, there was no charter group to which the Indian Act criteria of section 6 applied with respect to registration. Therefore, there was a negotiation to determine criteria, to recognize individuals who were the members of the body of Indians that the Governor-in-Council then recognized as a band for the first time under the Indian Act. Once this band is recognized under the Indian Act, the technical registration criteria of the Indian Act will apply to individuals.

Mr. Saranchuk described the purpose of Bill C-31, which was to adapt the Indian Act registration rule to section 15 of the Charter, protecting against discrimination, which entered into force on April 17, 1985. Bill C-3, again, in 2010, addressed an issue that had been identified by the British Columbia Court of Appeal with respect to section 6.

So Bill C-25 is different, and the agreement itself as well is different. I hope that addresses the question.

Senator Dyck: If I could recap that, what you're saying is that you're creating a new group. Then, after this group is formed and put on the registry, the provisions that are currently in the Indian Act via Bill C-31 and Bill C-3 will apply to that group, but right now it doesn't apply.

Mr. Reiher: That's correct. So the official phase, once the group is created and the members of the body have been identified and their names have been added to the schedule to the order-in-council, gives the individuals an entitlement under section 6(1)(b) of the Indian Act, and, for their descendants, section 6 will apply.

Mr. Saranchuk: Mr. Chair, if I may, it's an important point that the senator is raising. Yes, the charter group or founding members are being registered now, but their descendants or their family members, in accordance with the Indian Act provisions, can themselves be registered as Indians and, therefore, band members according to the Indian Act rules.

The Chair: Thank you. Senator Lovelace Nicholas.

Senator Lovelace Nicholas: Welcome here today. My first question would be: How could you recreate a nation when they were always there, and why did the First Nation disappear in the first place? Why are they landless?

Senator Dyck: That's three questions.

Senator Lovelace Nicholas: Oh, I'm sorry.

Senator Dyck: That's okay; I'm just teasing you.

The Chair: I'm sure you can answer those three questions.

Mr. Saranchuk: I got two of them. I'll do my best to answer them, senator. That's why I was trying to be careful in my terminology with respect to creating a First Nation. They were there; it was a question of recognition of who were the appropriate founding members. That's what the government and the Federation of Newfoundland Indians were seeking to do in this process. I might ask Mr. Reiher just to add something.

Mr. Reiher: Thank you. Mr. Saranchuk explained that the order has declared the body of Indians to be a band for the purpose of the Indian Act, so the body of Indians was in existence indeed. The second question is: Why did the band disappear in the first place? I don't think that it disappeared because the group was there, and I do not really have information with respect to the vitality of their culture before the creation of this band.

The last question that you raised was why this is a landless band, in other words, a band without a reserve. This is at the request of the group. They were formed of various groups on the island, represented by a federation of these groups, and they didn't wish to have a reserve under the Indian Act.

Senator Lovelace Nicholas: Interesting. One more short question?

The Chair: Yes.

Senator Lovelace Nicholas: I'll make sure it's one. Why would a document be refused or reassessed to be registered?

Mr. Saranchuk: Sorry, why would a document be refused? There are very clear rules in the agreement and in the supplemental agreement about what is required in terms of documentary requirements for membership in a band or for an enrollment application. In certain cases, if those rules aren't met, then it wouldn't be accepted. Mr. Reiher, do you have anything to add?

Senator Lovelace Nicholas: I was just curious. Would it be possible they were disenfranchised and weren't recognized?

Mr. Reiher: If individuals were enfranchised in the past, it is because they as a collective had a relationship with the Crown, and the Indian Act provision applied to them to enfranchise them. Whether this is a good thing is not the question, of course.

But if they had a relationship with the Crown before, and lost entitlement, they would normally not be covered by this exercise, because this exercise is to start a relationship with the Mi'kmaq of Newfoundland for the first time under the Indian Act.

Senator Dyck: With regard to the question about why this group was landless, the supplemental question would be: What would happen if the group decided, sometime down the line, that they wanted to create a reserve — they had enough people together, somehow got capital and decided to create a reserve — what would happen? Could they do that; would anything stand in their way?

Mr. Reiher: The 2008 agreement indicates there will be no reserve for this group. If in the future this group wanted to ask the federal government to create a reserve, that would be a decision to make at that point.

Senator Dyck: So it is open?

Mr. Reiher: Under the agreement, it is closed.

Senator Dyck: Oh.

The Chair: I guess agreements can always be changed.

Senator Dyck: Challenged.

Mr. Saranchuk: I will add that the government would have to consider the request at the time it was made. That is all we can say right now. There is a process whereby, if a request were made, it would be considered.

The Chair: Okay. Thank you.

Senator Raine: I would like clarification, if you don't mind, on why it is possible that some of the founding members who were accepted under the original process might now be disallowed. What has changed — is it the documentary evidence of their ancestral connection to the Qalipu Mi'kmaq? Is a different standard of evidence required now as opposed to what was, say, three or four years ago?

Mr. Reiher: Indeed, the original intention of the parties was to recognize individuals who had a strong cultural connection with the Mi'kmaq group of Indians of Newfoundland. Indications in the original agreement were given to the enrolment committee on how to assess this.

In 2012, the parties realized that the agreement had not been applied exactly in accordance with their original intentions and that more clarity was needed for the enrolment committee, especially in light of the fact that significantly higher numbers of applications had been received. Therefore, the supplemental agreement clarifies the documentary requirement; it clarifies the kind of documents that can be accepted in order to demonstrate, for example, self-identification to the Mi'kmaq group of Indians and acceptance by the Mi'kmaq group.

Therefore, while the criteria are the same, individuals have been given an opportunity to provide additional documentation to make sure they have actually demonstrated they meet the criteria.

Senator Raine: That will be okay for me for now. Thank you.

Senator Moore: Mr. Saranchuk, in the second paragraph on page 4 of your remarks, you say: "during the negotiation for the original 2008 agreement, both parties intended that founding membership would be granted primarily to persons living in or around Newfoundland Mi'kmaq communities."

To me, that reads like there are defined geographical spaces where these people live; is that correct?

Mr. Saranchuk: That is largely correct. There were 67 identified communities in the 2008 agreement.

Senator Moore: What were the ranges in size of those communities? Are they concentrated in one part of the province — such as in Newfoundland or in Labrador? Are they in one area?

Mr. Saranchuk: They're in the northwest part of the island.

Senator Moore: On the island and not the Labrador part of the province?

Mr. Saranchuk: Correct.

Senator Moore: Regarding Senator Dyck's question about reserves, it is interesting that we know where the communities are, but the possibility of establishing a reserve is not permitted under this bill. Was that possibility asked for by the band representatives in the negotiations?

Mr. Saranchuk: Mr. Reiher can supplement my response, but my understanding is that they did not ask nor desire a reserve at the time of the original negotiations.

Senator Moore: That's why you are calling it a landless band.

Mr. Saranchuk: Correct. For the purposes of my remarks, "landless" means "no reserve."

Senator Moore: I understand. At the bottom of page 8, you say that "approximately 6,000 applicants received a letter advising them that their applications were invalid and had been denied. They were also advised that this determination could not be appealed." Yet on page 9, you go on: "The enrolment committee is in the process of assessing the 94,000 valid applications and the review of the consideration of those applications will be completed by the fall 2015. This will be followed by an appeal period."

How is it that the 6,000 are denied an appeal, but those who may be denied applications deemed to be invalid by 2015 may have an appeal opportunity? Why is that?

Mr. Saranchuk: The short answer is that it was a decision of the parties in the agreement and then in the supplemental agreement. The 101,000 applications being assessed or reassessed, as you say, were split. There was an initial assessment done as to whether they met the basic requirements of validity set out in the 2008 agreement — the basic requirements. As you noted, 6,000 have been determined to be invalid, and the other 94,000 were assessed as valid. They're now going to be assessed based on the criteria.

So the validity relates not to one of the four enrolment criteria that we discussed a little earlier; it relates to basic requirements: applications being submitted on the correct forms, be provided in the appropriate documents in terms of birth certificates, et cetera. These were the minimum requirements for membership that the parties determined.

Senator Moore: Regarding those 6,000 being denied an appeal, was that under the original 2008 agreement, or was it also part of the supplemental document?

Mr. Reiher: This was clarified in the supplemental agreement. Under the initial agreement, applications that did not include the sufficient documents to be assessed could not have been assessed fully. The rationale for clarifying in the supplemental agreement that there would be no appeal is that the minimum documents were not present on file for any kind of assessment.

Senator Moore: Could you repeat that? There was not sufficient documentation in each of those 6,000 applications? The documentation was simply not available to consider whether or not — I guess they could be "reassessed," although I don't know what word I'm looking for.

You said that there was there no evidence at all in those situations that tied them indirectly with the requirement criteria?

Mr. Reiher: Yes. Under the original agreement —

Senator Moore: Yes?

Mr. Reiher: — there were seven conditions, if you will, for an application to be valid.

Senator Moore: Would they be valid as being part of the founding membership or not? The 6,000 would have been in earlier, right?

Mr. Reiher: Yes, all applications have been sent before November 30, 2012. As Mr. Saranchuk indicated, 46,000 applications were received in the last three months.

Senator Moore: Yes, I read that.

Mr. Reiher: Some of them were sent without any documentation or proper documentation. Some of them were not signed. There was a form that the parties used with release, and it had to be signed to be processed. There are seven provisions in the original agreement that would be annexed to the 2008 agreement, indicating what needs to be present for an application to be valid. The supplemental agreement clarified that when an application was not valid — therefore not enough information to assess the application in any way — there was simply no appeal, no reason to send this package to an appeal master because there was nothing present to —

Senator Moore: There was nothing there that met the first four criteria, nor the expanded clarification criteria in the supplementary. They just didn't have the —

Mr. Reiher: I'm sorry, I couldn't hear the question.

Senator Moore: I just want to make sure that I have got this straight. Those 6,000 people did not meet the eligibility criteria. There were four criteria you mentioned, and then there were clarification criteria added to the supplementary agreement. They didn't meet those either; is that correct? Is it just the original four criteria they didn't meet?

Mr. Reiher: To be clear for this committee, the applications that were not valid were not valid because they did not meet the minimum requirement to be valid applications, which has nothing to do with the criteria to be enrolled.

Senator Moore: Okay.

Mr. Reiher: That would be criteria like whether the application form that was prepared by the party had been used as opposed to a letter, whether the application form including the release was signed, whether a birth certificate was attached to the form. These were the minimum requirements without which —

Senator Moore: These were set out in the initial agreement?

Mr. Reiher: That's correct.

Senator Moore: You mentioned that if the 94,000 are not happy with the decision of the enrolment committee, there is an appeal period. To whom would those individuals appeal?

Mr. Saranchuk: There is an appeal master provided for in the original agreement.

Senator Moore: Who is the appeal master?

Mr. Saranchuk: There was a previous appeal master. There will have to be a new appeal master determined or identified prior to between now and next August 2015.

Senator Moore: Who picks that person and what are their qualifications?

Mr. Reiher: The qualifications are described in the original agreement and the parties jointly select the appeal master. The appeal master has to be legally trained and a well-respected jurist of the Newfoundland community. I don't have the exact words in front of me, but it is in the original agreement.

Senator Moore: That person is selected by both the band and the Department of Indian Affairs; is that who selects between those two?

Mr. Reiher: It is actually the parties to the agreement, which are the Federation of Newfoundland Indians and Canada.

Senator Moore: And Canada, not the department? So is it the Governor-in-Council or is it the department?

Mr. Reiher: It is the Minister of Aboriginal Affairs.

Senator Moore: The minister?

Mr. Reiher: Yes.

The Chair: I have three more questioners before we need to hear from our other witness.

Senator Lovelace Nicholas: How long would a court challenge take and would the person challenging the court have to pay for it themselves?

Mr. Saranchuk: Senator, it is difficult to say how long a court challenge would take to the original agreement. Like all court challenges, it would be dependent, but it probably wouldn't be extremely quick. Yes, the person bringing the challenge would have to pay for the challenge.

Senator Wallace: Mr. Saranchuk, you touched upon this in your remarks. My understanding is the original 2008 recognition agreement and the 2013 supplemental agreement provided clarification of the documents required to satisfy the four main criteria for band membership arose as a result of extensive consultation and collaboration between the federal government and the Federation of Newfoundland Indians, principally through Chief Sheppard.

Could you expand upon the extent of the collaboration? My understanding is that both the 2008 agreement and the 2013 agreement are not the result of a bill being imposed, an act imposed on the First Nations people by the government, but rather it involved extensive negotiation and agreement with the First Nations people of Newfoundland?

Mr. Saranchuk: That is correct. There were extensive consultations but really negotiations leading up to both agreements. I will let Mr. Reiher talk a little more about the negotiations behind the 2008 agreement, which were extensive and the result of litigation brought by the Federation of Newfoundland Indians that led to an agreement in principle and then to the actual 2008 agreement.

Then both parties determined in autumn 2012 that there was a looming issue with respect to the fact that clearly under the 2008 agreement, all of the applications could not have been considered under the very terms of the 2008 agreement. It was impossible to consider these 70,000 pending applications. Therefore, the parties got together, and we started discussing the issue with them, and other issues that had arisen. I suppose at a certain point there that turned into, for lack of a better word, negotiations because we ended up signing a document, the supplemental agreement.

That agreement was negotiated with Chief Sheppard, his legal adviser, his team and ultimately ratified by the band council as well.

Senator Wallace: On that point, the 2012 supplemental agreement clarification, which really is what would be implemented through the bill before us, I want to be clear on that, is supported by the Federation of Newfoundland Indians. There's agreement there. It is not something that is being imposed by the federal government. Is that correct?

Mr. Saranchuk: That is correct. You will be able to ask Mr. May, legal counsel for them momentarily. But yes, they are supportive of the 2008 and 2013 agreements.

Senator Wallace: Okay.

Mr. Saranchuk: If I might clarify, senator, our view would be that the bill fully implements both agreements, if you will.

Senator Wallace: Yes.

Mr. Saranchuk: The 2008 and 2013 agreements. The 2008 agreement was to recognize a group and have its members, under those criteria, then recognized as Indians. That won't be possible unless the Governor-in-Council can modify the schedule to the order.

Senator Wallace: Am I correct that the reason for the clarification of the criteria for band membership that arose from the supplemental agreement in 2012-13 is because of the credibility and integrity of the Qalipu First Nation Band itself? There was some question about that and from that, of course, the whole enrolment process, but it was a matter of preserving and protecting the integrity of the Qalipu First Nations people; is that correct?

Mr. Saranchuk: That is correct. If I can just clarify, it is correct that both parties had concerns about the credibility and the integrity of the membership when there were 101,000 applications and possible members and that was not anticipated by either one of the parties.

I know I myself sometimes have this issue, but it is important to put on the record that the 2013 agreement did not modify or in any way touch the criteria set out in the 2008 agreement. So the criteria were not modified, touched or otherwise affected by the 2013 agreement. What the 2013 agreement did was clarify the documentary requirements necessary to satisfy those criteria.

Senator Wallace: A quick question to Mr. Reiher: Clause 4 of the bill — and this was referred to by Mr. Saranchuk — would remove the ability of a person whose name is omitted or removed from the schedule to seek compensation for damages.

Mr. Reiher, is there any legal concern we should have about the inclusion of that provision? Have you researched that, and is that a solid provision that we need not have legal concern about?

Mr. Reiher: Thank you for the question. This clause does not prevent individuals from going to court to challenge their exclusion from founding membership. This clause simply prevents claims for compensation by individuals for whom it will have been determined, at the end of the new process, that they do not meet the criteria as originally intended by the parties.

It does not affect the right of appeal that is included in the agreement, and it does not affect their right to access the courts. It just limits the kind of remedy that they can obtain from courts, in certain circumstances.

I should add that there are a large number of similar clauses in other federal statutes for similar situations.

Senator Tannas: There may be people who have been receiving benefits over the last couple of years who may subsequently be determined to have not been eligible for that. How would that be treated? Would there be a refund request, or what would happen?

Mr. Saranchuk: It is possible, as you say, that some individuals might end up losing their Indian status as a result of this, ultimately. A decision has been made that they would not be asked to repay any benefits that might have accrued to them in the interim.

Senator Meredith: You said there was a need for this legislation. Was there anything else considered before bringing this legislation forward in terms of just how we're going to recognize the Qalipu Mi'kmaq First Nation? My second question pertains to benefits. Talk to us about the difference between those on-reserve and off-reserve in terms of them not having land.

You have indicated that they're not seeking land at this point. The question was asked previously, and was previously one of my questions, regarding them challenging to have land later on. How would that roll out if that does occur?

Mr. Saranchuk: If I might, senator, I will try to start with your second question first. The difference between on-reserve and off-reserve benefits, I would say, is primarily tied to the reserve or the land base. If you are a member of a band with a reserve, you would have the ability, under the Indian Act and according to the rules, to receive a certificate of possession from the band council. So there would be certain rights or entitlements there, if you will.

The other one that is tied to a land base is the tax exemption under section 87 of the Indian Act, which is tied to property situated on a reserve. That would be the primary difference between the two on and off-reserve sets of benefits.

In terms of the need for legislation, the legislation is necessary for the final step in the process. Once all of the entitlements have been determined, the appeal period has been done and there's a final list, it is at that point that the legislation is necessary for technical reasons that I will let Mr. Reiher explain to fully implement the agreement by having the new list become the operative list for the band. I'll let Mr. Reiher supplement that.

Mr. Reiher: Thank you. If I may complement a little bit, the purpose of Bill C-25 is to achieve certainty and clarity. The Mi'kmaq of Newfoundland have been struggling for this recognition for over 40 years, and the government does not wish to run the risk of seeing amendments to the order being successfully challenged.

Now, whether there is authority to amend the order for the Governor-in-Council or not, the Governor-in-Council has the authority to declare a body of Indians to be a band under the Indian Act.

There's no explicit authority to amend such order. It is likely that the authority exists to add names to the schedule, and it has been done. It is less clear that there is authority to remove names from the schedule to the order, the reason being that the result of this is a loss of Indian status, which is equivalent to the old concept of enfranchisement that was eliminated from the Indian Act in 1985. Therefore, Parliament indicated that the registrar or the Governor-in-Council cannot remove Indian status from individuals through enfranchisement. To the extent that individuals would lose entitlement as a result of this exercise, this could be seen as something that is not permitted. Therefore, it is prudent to clarify that, given their circumstances, given that individuals who have been added to their register under this initiative have been added through the application of criteria that was not in accordance with the original intention of the parties, in this situation, it will be permitted to amend the order.

Senator Meredith: Under the current enrolment process, has it come to your attention that individuals may have hidden their identity for fear of discrimination in some way and, thus, don't have appropriate documentation to validate their true status?

Mr. Saranchuk: I will try to have a crack at that first. I'm not sure it has come to our attention. It is possible that there are individuals who come from families that, in the past, weren't as open about their heritage and might have perceived that there would have been discrimination and, therefore, been reluctant to showcase their Aboriginal heritage.

With respect to the documentary side of that, I would simply note that all individuals who applied had, ultimately, what amounted to four years to gather the appropriate documentation, if I have got it right, between 2008 and November 30, 2012. Some of that documentation, of course, could be extensive when you look at the ancestry aspect, but, nonetheless, there were four years in which to identify the founding group.

I think I would close by noting that that is one of the implications of establishing or recognizing a founding group that that can't go on forever — that the parties have identified that the founding group is identified as of this date. And then you move on and you apply the Indian Act registration provisions thereafter they take up. But there is a closed period to identifying a founding group.

The Chair: We will hear later from the Federation of Newfoundland Indians.

Senator Lovelace Nicholas: On page 5, you said that the criteria for membership eligibility include self-identification. Yet, you're asking other people to have documentation because they are refused or they lack documents. Why would this be?

Mr. Saranchuk: One of the four criteria for eligibility, as you know, senator, is self-identification, along with ancestry, descent and acceptance. The need to provide documentary evidence with respect to self-identification arises from the fact that the agreement in terms of criteria asked for self-identification to be shown prior to the creation of the band, so in this case prior to September 22, 2011. It was possible for people to self-identify differently, if you will, prior to September 22, 2011. After that date, the parties decided that it was necessary to provide objective documentary proof that they had self-identified prior to that date.

The Chair: I would ask on behalf of the committee that you give the committee, through the clerk, the documentary requirements. I think they're spelled out in the agreement but perhaps you could give us that information as it would be helpful.

Mr. Saranchuk: Yes, Mr. Chair.

Senator Dyck: I want to go back to the question of the possibility of some Newfoundland Indians losing their status. As I understand, it was the Federation of Newfoundland Indians that entered into this agreement. I guess part of my question is: Within the Federation of Newfoundland Indians is there a mixture of different nations? For example, there are Mi'kmaq, but I don't know who else lives in Newfoundland in terms of the different First Nations. If you are part of the Federation of Newfoundland Indians now and you have been recognized and have access to non-insured health benefits and post-secondary education, why would you want to apply for membership in the Qalipu Mi'kmaq First Nation? Are you getting different benefits or is it simply a matter of expressing your cultural heritage and reclaiming the Mi'kmaq as an identified band? What is the benefit to applying for membership in the Qalipu Mi'kmaq First Nation? What happens to the Federation of Newfoundland Indians if they're mostly Mi'kmaq; will they disappear?

Mr. Saranchuk: I'll try to start, senator. It's difficult for me to speak to why people would apply. Part of your question is probably best answered by the representative of the Federation of Newfoundland Indians, who will be appearing momentarily. Mr. Reiher can answer the last question you asked.

Mr. Reiher: I'll try, but I may not be able to address all aspects of your questions. You mentioned whether it's one nation or several nations. The FNI was created in the early 1970s, and they represent Mi'kmaq on the Island. In terms of recognizing a body of Indians, it's possible that individuals from other nations have moved in the past to Newfoundland and integrated into a Mi'kmaq community. To that extent, they would be included. They would be a member of the community and would be recognized under this initiative in the same way.

To address another aspect of your question, if individuals are registered today with another band in Canada, they cannot be recognized again or be founding members of the Qalipu Mi'kmaq First Nation. Individuals who are already registered are excluded because the goal of this initiative is to recognize a body of Indians for the first time under the Indian Act.

With respect to the benefits, you alluded to the importance of the Mi'kmaq culture for the applicants. Of course, this is a very important element of why individuals would apply. Also, they would be entitled to registration and some benefits available to Indians, such as non-insured health benefits and post-secondary education. They would be members of a band that receives band support funding and may receive some economic development funding. As a group, they would have benefits.

The Chair: I thank the witnesses very much. We will hear from the Federation of Newfoundland Indians through their counsel by video conference. I have speaking notes from Mr. Stephen May, Legal Counsel, in English only. Is there agreement that these be distributed to members of the committee?

Hon. Senators: Agreed.

The Chair: Our next witness appears before us by video conference from St. John's, Newfoundland, representing the Federation of Newfoundland Indians. We have Mr. Stephen May, Legal Counsel.

Mr. May, welcome to the Aboriginal Peoples Committee of the Senate. Please proceed with your presentation, which will be followed by questions from members of the committee.

Members of the committee asking questions, I'll ask you to introduce yourselves when you have questions.

Stephen May, Legal Counsel, Federation of Newfoundland Indians: Thank you, Mr. Chair, and thank you to the staff of the committee in accommodating my appearance by video conference today. Due to the short notice of the committee hearing, I had another commitment this morning that I was not able to postpone, but did want to appear to provide the background relating to Bill C-25. It's a long history, and it's important that the committee be aware of that history in terms of what leads to this bill.

The Federation of Newfoundland Indians was established as a not-for-profit corporation under the Corporations Act of Newfoundland and Labrador. It was originally formed in 1972 as the Native Association of Newfoundland and Labrador, which was formed by interests representing the Inuit of Labrador, the Innu of Labrador, and the Mi'kmaq on the Island of Newfoundland.

Shortly after the Native Association's formation, the Inuit and the Innu decided not to continue their membership in the organization. The association then changed its name to the Federation of Newfoundland Indians and continued to represent the Mi'kmaq on the Island of Newfoundland through a series of affiliated Mi'kmaq bands that were established primarily in central Newfoundland and on the West Coast of Newfoundland.

Prior to 1982, Mi'kmaq living on the Island of Newfoundland had not been recognized as being eligible for registration under the Indian Act. The federation regarded this as a failure of the Government of Canada to accept its constitutional responsibilities over Indians on the Island of Newfoundland. The federation endeavoured to obtain recognition from the Government of Canada regarding the eligibility of the Mi'kmaq on the Island of Newfoundland for registration under the Indian Act.

Negotiations with Canada commenced in the late 1970s and early 1980s. They initially resulted in the Mi'kmaq of Conne River, which was an affiliate band of the federation, to have its members become eligible under the Indian Act of 1982. At that time, the federation was made up of a further six affiliated bands whose members were, by their membership in those bands, members of the federation. Despite further efforts by the federation to obtain recognition of those members under the Indian Act, no further action was taken to register them. As a result, litigation was commenced in 1989 in the Federal Court of Canada by the federation and the chiefs of its then six affiliated bands seeking a declaration that the federation's members be eligible for registration under the Indian Act.

Around 2002, then-minister of Indian Affairs and Northern Development, the Honourable Robert Nault, agreed, following discussions with the federation, to have the Government of Canada pursue exploratory discussions with the federation designed to determine whether there was a basis to settle that Federal Court action.

These exploratory discussions resulted in the development of an option to allow Mi'kmaq on the Island of Newfoundland, except for those who were members of the Conne River band, to be registered under the Indian Act as members of a landless band. A landless band simply meant that no lands would be set aside for reserve should a band be declared by the federal cabinet.

In late 2003, the parties commenced preliminary negotiations to assess whether the concept of a landless band would be a viable option for the federation and the Government of Canada to consider. The preliminary negotiations included a series of consultations with federation members in their communities where the bands were located. Those consultations reflected a consensus that federation members supported the concept of a landless band but still wished to be registered through the Indian Act as members of their current communities.

Once the preliminary negotiations determined that the federation and Canada were prepared to negotiate the creation of a landless band, the next step in the process was to negotiate an agreement in principle.

On November 30, 2007, Canada and the federation announced that they had reached an agreement in principle, which provided a process leading to the recognition of Mi'kmaq on the Island of Newfoundland.

Following subsequent ratification of the agreement in principle by the federation and the Government of Canada, the agreement in principle was signed by the Minister of Indian Affairs and Northern Development, the Honourable Chuck Strahl, and Brendan Sheppard, the President of the Federation of Newfoundland Indians, on June 23, 2008. Upon the signing of the agreement in principle, it became the agreement for the recognition of the Qalipu Band.

As stated in the introduction to the agreement, its purpose was to create a process leading to the recognition of a landless band for the Mi'kmaq group of Indians of Newfoundland. In doing so, the agreement settled the court case seeking recognition as status Indians under the Indian Act for federation members, and also non-members, who met the eligibility criteria.

Those criteria were established based on a review of the Supreme Court of Canada decision that had been issued in the R. v. Powley, a case involving the assertion of Metis rights in northern Ontario.

The court set out a series of criteria to establish how a group in terms of exercising those rights might be identified. The parties to the agreement found this to meet their purposes in attempting to define who should be eligible for membership in the Qalipu Mi'kmaq First Nation. Those criteria were evidence of Aboriginal ancestry without regard to blood quantum, evidence of self-identification as a member of the Mi'kmaq group of Indians on the Island of Newfoundland prior to the formation of the Qalipu band and evidence of individuals having been accepted as a member of the Mi'kmaq group of Indians on the Island of Newfoundland prior to the formation of the band.

The term "Mi'kmaq group of Indians of Newfoundland" was defined by the agreement under section 1.14 to refer collectively to the Mi'kmaq groups of Indians of Newfoundland included but not limited to those situate in the various locations listed in annex B to the agreement. The reference to the annex B communities in the definition of Mi'kmaq group of Indians of Newfoundland reflected the desire of federation members to be registered as members under the Indian Act of their current communities. Councillors to the Qalipu band council are elected from those communities. By not limiting the communities to those listed in annex B, there was a potential through the process to add further communities if evidence was established that a Mi'kmaq group existed outside of the federation.

Membership in the Mi'kmaq group of Indians on the Island of Newfoundland was based on establishing a current and substantial connection with the group, based on residency, if a person was living in or around one of the communities listed in annex B in the agreement, or frequent visits and/or communications with members of the group, and the evidence of Mi'kmaq culture and way of life, including membership in an organization promoting Mi'kmaq interests, knowledge of Mi'kmaq customs, traditions and beliefs, participation in cultural or religious ceremonies or pursuit of traditional activities. Those criteria for membership were established to reflect an intention that non-residents display a level of involvement in the local Mi'kmaq groups so that it could be said that they were members of that group even though they lived outside the list of communities. The band was to be made up of Mi'kmaq with current and substantial connections with the listed communities on the Island of Newfoundland who, based on their residency or level of involvement with the group, were in a position to actively contribute to those communities. Non-resident applicants had to have more than Mi'kmaq ancestry with connections to more than immediate family members and more than a passing interest in their Mi'kmaq ancestry.

Through studies conducted during the course of the negotiations with Canada leading to the agreement, the parties expected no more than 20,000 applicants. However, in excess of 20,000 people have been advised already that they meet the eligibility criteria, and there are in excess of 100,000 applicants. The vast majority, the federation is told, reside outside the Mi'kmaq communities listed in the agreement. These numbers raise questions as to whether the agreement has been and will be followed as intended by the parties.

The federation, as a party to the agreement, has an interest in ensuring that the criteria for founding membership in the band as contained in the agreement has been applied as intended. To ensure that eligibility for membership is determined as intended and to ensure that all applications are reviewed in a fair and equal manner, the Federation of Newfoundland Indians agreed through the supplemental agreement to have all applications assessed and reassessed to determine whether each meets the criteria for founding membership. This will mean that some who have been advised that they meet the eligibility criteria will receive letters from the enrolment committee established under the agreement and charged with the responsibility of reviewing those applications stating that it has changed its decision. In that situation, a recommendation will be made to the Governor-in-Council that the person's name be removed from the founding members list of the Qalipu Mi'kmaq First Nation.

I had the opportunity to listen to some of the presentation from Mr. Reiher and Mr. Saranchuk on Bill C-25 and the reason for its introduction to authorize the Governor-in-Council to make modifications to the founding membership list in order to do what is necessary to implement the agreement and the supplemental agreement. The federation continues to support the supplemental agreement as part of the overall agreement to ensure that the criteria for membership is applied fairly and equitably to all applicants as the parties intended when they entered into the June 23, 2008 agreement to establish the band.

Mr. Chair, that concludes my opening presentation.

The Chair: Thank you very much, Mr. May.

Senator Wallace: Thank you, Mr. May, for your presentation. When Mr. Saranchuk appeared before us earlier today and spoke about the need for the supplemental agreement and the clarification of conditions that would apply to the criteria of the 2008 agreement, he referred to the need for that related to preserving and protecting the integrity of the enrolment process for band members of the Qalipu Mi'kmaq First Nation and also the integrity of the First Nations community itself. Can you comment on that? Is this a matter of integrity that your federation believes must be preserved?

Mr. May: Thank you, senator. Senator, the purpose, as I've outlined in my opening statement, was to build a band based on community involvement, involving the residents in the communities that are listed who showed an interest in being involved and were prepared to declare their interest in becoming members, to build a Mi'kmaq culture and traditions beyond where they are now. My client views that a lot of that culture and tradition lapsed after the province joined Confederation because the support to develop that traditional culture was not there, so they were starting from a very low base, and they wanted to build that base around the communities. At the same time, they recognized that there are people outside their communities who are strongly connected with them and their Mi'kmaq culture and traditions.

When we learned that the numbers were escalating dramatically, primarily I would say in around the spring of 2012, it brought into question whether the intent of the agreement was being followed, and we look at that as an issue of integrity and credibility. The purpose was, as I say, to build a strong core within the communities. Out of those 100,000 applicants, we understand that there may be as many as 70,000 who applied outside those communities. In order to ensure that the band membership is developed as intended, we view that this assessment and reassessment of applications is necessary to ensure that that goal is met and, as I indicated, to follow the intention of the agreement, which, to our client, involves issues of credibility and integrity, to ensure that it is established as the parties negotiated it prior to 2008.

Senator Wallace: The impact of the recognition agreement, 2013, as others have pointed out, could be to remove names of individuals that are now on the current list. That would be a result of applying these new documentary standards from the 2013 supplemental agreement. From your position, do you believe that would be a reasonable conclusion, applying the standards of the 2013 agreement, and it would be reasonable that individuals could find their names being removed from the band list?

Mr. May: I would like to address the presumption in your question that these are new documentary standards. If you review annex A of the 2008 agreement, you will see references to documents that were requested as part of the process to establish both frequent visits and communications, and also to establish that people who are applying outside the communities could connect with Mi'kmaq culture and traditions within those communities.

The supplemental agreement, or the 2013 agreement, provides greater detail in the type of documentation that has to be provided to establish that the applicant meets the criteria as is contained in section 4.1 of the 2008 agreement.

The intent of the parties all the way along was that that type of documentation would be provided to ensure there is substantial connection to the current community. These are words that I am not making up. They're contained in the 2008 agreement. Yes, our position is that it's reasonable that those documents be provided and reviewed as part of this process to ensure members obtained membership under the criteria that were negotiated.

From that aspect, the federation has an obligation to all applicants who applied to ensure that the people who obtain founding membership do so under the terms of the agreement. Applying the 2013 agreement to that review is consistent with the intent and what was in the 2008 agreement, but with more specific direction as to how those documents are to be weighed.

This is an agreement between my client and the Government of Canada. It is important, and through this process the parties have come together to say we have to ensure that we are applying this agreement in the way that the parties wrote it and intended it to be interpreted. Otherwise, it is unfair for those who do meet the criteria that were intended to be applied.

I don't know how many people may lose membership, but it is reasonable to assume that some people may lose membership. From my client's perspective, if they did not meet the criteria that were intended, that is a reasonable outcome.

Senator Wallace: At the end of the day it is the integrity of the Qalipu Mi'kmaq First Nation that is at stake. That would certainly make sense.

The Chair: Maybe to further elaborate on that, Mr. May, we have heard now from the government witnesses and from you that there may have been a little more specificity in the 2013 supplemental agreement, but the basic intent of the parties has not changed from 2008.

I am wondering if you would agree that the first enrolment committee could have done a more rigorous or thorough job in honouring the intent of the 2008 agreement, and that really is how we got into this situation. Would that be a fair summary for me to make?

Mr. May: I can't answer that because I haven't been involved in the actual review of the files. Reason dictates that there will be some people who will lose their membership. I cannot say that the fault for that lies with the enrolment committee, and I have got no basis to do that.

Perhaps better direction could have been provided at the beginning. The idea of the criteria that's in annex A of the 2008 agreement was meant to provide flexibility in obtaining any one of a number of sets of documents that could be reviewed to assist that connection to the community.

Obviously, the supplemental agreement goes farther because, as I said in my opening statement, this was meant to be a landless band for the Mi'kmaq on the Island of Newfoundland. At the end of the day, if you have 70,000 applicants applying from elsewhere outside of the communities and Newfoundland, the parties and my client view it as important that better direction be given in terms of how or what type of documents should be provided and how documentation should be assessed. Whether the enrolment committee was too flexible or whether, at the end of the day, they looked at the documentation they were able to view to determine that people were there and perhaps the vast majority of those people did meet the qualification that was established, I'm not able to say.

I am not prepared to lay blame at the feet of the people who served on the committee. Obviously, we have gone back and determined that more specific direction may have been needed; that was reactive. We could have been proactive perhaps in setting that direction before the enrolment committee started its work, but I can say, because I was around the negotiating table when it was determined, there was absolutely no prospect and no thought through any projection that we would receive the number of applications that we did.

So the need wasn't perceived at the time to be proactive.

Senator Dyck: I am going to continue along with that same vein of questioning. From what you have said, the Federation of Newfoundland Indians right now represents primarily Mi'kmaq. My question also has to do with the potential of some who have been accepted as members of the Qalipu First Nation who then may later be rejected.

As I understand it — and I could be wrong — the Newfoundland Indians right now do not have any benefits because they're not registered under the Indian Act. That would be the first one; is that correct?

Mr. May: Well, prior to the formation of the band, there were no Indian Act benefits. The federation did benefit from various programs on a one-off basis from time to time, but there was no sustained commitment of benefits as there would be to members of an Indian Act band.

Senator Dyck: With the formation of the Qalipu First Nation then the members would receive benefits. I don't understand how anybody can be losing their benefits. I first thought people might be losing their benefits, but right now that doesn't seem the case because they're not registered yet. They won't be registered until they actually pass this bill.

Mr. May: Well, there are approximately 20,000 members now registered with the Qalipu Mi'kmaq First Nation who are receiving benefits under the Indian Act. There are approximately another 75,000, 80,000 applicants who have applied but are not yet members. Not all of those would be members of the federation. In fact, the vast majority would not be.

At the time that the agreement in principle was announced in November 2008, the membership of the federation had peaked at just over 10,000 members.

Senator Dyck: So that I'm absolutely clear, then: You have about 20,000 who became registered as a result of the 2008 agreement?

Mr. May: I'm not sure of the exact number, but it is just over 20,000 who are now registered, that's correct.

Senator Dyck: This is where I am getting confused again. I thought the intention of the bill was that — in order to be registered under the Indian Act, this bill was necessary to register the Qalipu Mi'kmaq First Nation. If there are already 20,000 registered, why do we need the clause relating to registration if there's already a mechanism to register them?

I hope I'm making sense. I am really confused.

Mr. May: If you are referring to clause 3 of the bill, it is not just to add the name of a person but also to remove the name of a person. In terms of the process under the supplemental agreement, which involves a reassessment of those applications that have already been approved, if, as a result of that reassessment, a person has been found not to have met the criteria, clause 3 of the bill would provide the mechanism by which the Governor-in-Council could remove that person's name.

Senator Dyck: As it now stands, without Bill C-25, the Governor-in-Council cannot remove names from the Indian Act?

Mr. May: I'm not sure if I'm the right person to address that. From the technical aspect of things, the Department of Justice has seen a need to do this. From my own general background in this area, during the negotiation process as we were discussing the concepts, one of the issues in my mind, personally, was whether legislation would have to be brought forward to give effect to the results of the agreement in that if it was found that a person already on the band list did not meet the criteria, whether there was the authority to the registrar under the Indian Act to remove the name of a person who had been found eligible for membership as a founding member.

Toward the end of negotiations, Canada advised that it did see the need to bring legislation to give effect to that. From my perspective as a lawyer who has worked in this area, I was not surprised by the advice that legislation would be necessary.

The Chair: To assist the committee, Mr. Saranchuk did say that; I believe he said that there's likely authority to add names to the schedule of the recognition order under the Indian Act, but the government felt it was unclear whether the act currently allows removal.

Senator Dyck: I have one other short question. In your remarks, you were talking about the Mi'kmaq from Conne River and that they were eligible for registration in 1982. Yet, on the second page, you say that they were not eligible for registration as a landless band under the Indian Act. Why are they not eligible as a landless band? Do they have land; is that the issue?

Mr. May: A landless band, as I understand it, is a band without a reserve. When the Conne River Miawpukek band was established in 1982, it was established as a band with a reserve; therefore, the Conne River band is not subject to this agreement.

Senator Tannas: Following up on what Senator Dyck was asking, what is the need for this particular bill, given that the Qalipu band has already been created? Just so we're all on the same page, my understanding — and maybe you can confirm this is true — is that there are still 70,000 people who applied, but time ran out, and the committee was disbanded under the previous bill. So we still have 70,000 people that we need to deal with. That is the first point.

Second, it has now potentially come to light that there are people who were approved who shouldn't have been approved, and we need the ability, through this bill, to remove those people.

Third, we need to be able to remove those people without them suing for lost benefits as a result of being accepted and then having it revoked.

Is that essentially what we're doing here, from your perspective?

Mr. May: Is that directed to me, senator?

The Chair: Yes, it is directed to you, sir. Yes or no?

Mr. May: Yes, that's a fair synopsis.

Senator Lovelace Nicholas: Since the federal government refused to recognize the eligibility to register the band under the Indian Act, and they're considered landless — I am confused. Were they not First Nations living there with the first contact?

Mr. May: That's an excellent question, senator, and one that is still at issue in this province. Both my client, the Federation, and the Conne River Miawpukek band take the position that they have land rights on the Island of Newfoundland. There have been some court cases here dealing with that which, to date, have not accepted that view.

However, it is important to recognize that there's a difference between having a land base for the purpose of making land claims versus having your reserve established under the Indian Act. From my client's perspective, this agreement for the recognition of the Qalipu Mi'kmaq band allows for the registration of Mi'kmaq on the Island of Newfoundland who meet the eligibility criteria as members. And when we say "landless band," members who are not situated on a reserve, there's no reserve established as a result of this.

The agreement does preserve the right to assert claims based on land usage and a land base. The evidence to establish that historical pre-European-contact land base is still in the process of being developed.

Senator Lovelace Nicholas: In this clause where you said "self-recognized" —

Mr. May: "Self-identification"?

Senator Lovelace Nicholas: Yes, I'm sorry. Could this include non-natives?

Mr. May: Theoretically, it could, but that goes to the idea that there is not just one criterion. In following Powley, the intent was there had to be more than just self-identification; there had to be an ancestral link to a recognized person who, in historical texts or government documents, was recognized or could assert Canadian Indian ancestry prior to Newfoundland joining Canada in 1949. Then, of course, the additional criterion is that the person has to be accepted as a member of the group.

While the agreement does not exclude specifically non-native people under any of the criteria, all three must be met, including the criterion of Canadian Indian ancestry, which, although there's no minimum blood quantum set in the agreement, would involve some basis for claiming Aboriginal ancestry in order to make the claim. A person who self-identifies and is non-native must still establish that ancestry and be accepted as a member of the group before being eligible for registration.

Senator Lovelace Nicholas: Could one be recognized as a non-native spouse?

Mr. May: No, that's not it. It is possible, senator, if a non-native child were adopted by a native family, but that is specifically recognized in the agreement. That would be the only exception.

Senator Meredith: Mr. May, you mentioned that approximately 70,000 of those applicants are outside Newfoundland.

The Chair: I think he said somewhere outside of Newfoundland.

Senator Meredith: Yes, it's conceivable that some individuals have moved away from Newfoundland and spread out across Canada. However, they still have their status; and we talked about them hiding their identity. For them to self-identify or be accepted back into their community, these individuals would have to appeal. You said there were about 70,000 of them. We heard from Aboriginal Affairs that a new appeals master has to be put in place.

What is the procedure, from your client's perspective, that they would have to go through or are comfortable with as laid out for them to put this new appeals master in place? That's my first question.

My second question, and I will ask quickly, is with respect to your client's perspective on the benefits that will be offered to individuals who have been recognized. Are they comfortable with the level of benefits they will receive?

My third question is: What precludes those individuals who are now delisted from court challenges?

Mr. May: The process to appoint an appeal master is the same as the one under the 2008 agreement. Generally, the person is legally trained and well-respected by the legal bar of the province of Newfoundland Labrador. My client is comfortable with that. We're in the process of identifying candidates who may be available to fill that position. We are currently in discussions with the Government of Canada in terms of identifying who those individuals might be.

I'm not sure that I can answer your second question. I don't have knowledge as to what the benefits would be to members of the band except on a very high level. I know that benefits are available to them through the Department of Health with non-insured health benefits. For other programs, such as education, money is provided to the band pursuant to a formula to allow members to receive educational assistance. I haven't been involved in either the negotiations or the administration of those benefits so I can't bring it down to what an individual might be eligible to obtain.

Senator Meredith: My question was whether your client was happy with what they would receive. In terms of your discussions with your client, you obviously discussed that in terms of saying these are identified members now and these are the benefits, whether health or education. To add quickly, for those individuals living there, in terms of economic benefits, do they have access to work the land? I know there's a lot of gas in Newfoundland. Are they able to set up businesses around that? Are there any additional benefits to them in that regard?

Mr. May: People who are members would have access to federal programs available to status Indians who live off reserve. Specified in the 2008 agreement are the types of programs available.

Again, I have to be careful because I'm not close to the benefit package in terms of what members may not be able to receive. During the original negotiations, there was an issue with respect to housing benefits because housing benefits would normally be provided to on-reserve Indians; so there was some discussion about that. I haven't been involved in continuing discussions with my client as to whether there has been some accommodation for that concern.

Senator, you must forgive me, I went to write down your third question, but I'm not sure I recall it accurately. Could you repeat it?

Senator Meredith: In the interest of time I will pass on that.

The Chair: We have a moment for Senator Raine.

Senator Raine: Will your members be made up of the Qalipu Mi'kmaq First Nation and the Miawpukek First Nation of Conne River or just the Qalipu Mi'kmaq?

Mr. May: Senator, when it became clear that the agreement would be brought into effect, the Federation of Newfoundland Indians met in a national assembly in 2009. The way the bylaws worked at the time for the federation is that its affiliated bands would send delegates to an annual meeting under a process allowed under the Corporations Act in Newfoundland Labrador. At that meeting, they approved a resolution that would change the membership structure of the FNI once the band was established.

There were a number of reasons for that, some financial and some with respect to some programs that would be essentially for its members only, when there would be more than its members in Qalipu. In 2009, the delegates to the annual general assembly of the federation approved a resolution changing the bylaws of the federation when the band came into effect, making them sole members of the federation — those members of Qalipu who were elected to its band council. Essentially today, the federation membership is the band council of the Qalipu band.

The Chair: I have been asked for one point of clarification. You referred to litigation over the recognition of Mi'kmaq and an agreement that was reached. How did that agreement affect the litigation? Was there a connection?

Mr. May: Yes, senator. As a result of reaching the agreement, the litigation was discontinued by the federation. The process by which it would be discontinued was outlined in the agreement. The litigation is at an end before the Federal Court.

The Chair: Is that by agreement of the parties?

Mr. May: By agreement of the parties as reflected in the 2008 agreement. The terms for the discontinuation of the court action were specified in chapter eight of the agreement. The consideration for this agreement was to settle the court case.

The Chair: Thank you very much for appearing. It has been helpful, especially on the land issue. We learned something from you that helped to clarify that question.

(The committee adjourned.)


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