Proceedings of the Standing Senate Committee on
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.
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
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
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.
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Moore: Who picks that person and what are their
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
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
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
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
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
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
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
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
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
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
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
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
Mr. May: "Self-identification"?
Senator Lovelace Nicholas: Yes, I'm sorry. Could this include
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
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
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
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
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.)