Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 7 - Evidence - June 11, 2014
OTTAWA, Wednesday, June 11, 2014
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order, met this day at 6:51 p.m. to give consideration to the bill.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good evening. I'd 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 or via CPAC or the Web. I'm Dennis Patterson from Nunavut. The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
This evening, we're 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.
Today we'll hear from three witnesses: the Mi'kmaq First Nations Assembly of Newfoundland, represented by Jaimie Lickers, Counsel; and two individuals, Pauline Tessier and Helen Darrigan. Ms. Tessier and Ms. Darrigan are applicants to the Qalipu Mi'kmaq band, whose applications have not yet been processed.
Before proceeding to the testimony, I'd like to go around the table and ask the members of the committee to please introduce themselves.
Senator Moore: Good evening; Wilfred Moore from Nova Scotia.
Senator Dyck: Senator Lillian Dyck from Saskatchewan.
Senator Lovelace Nicholas: Senator Lovelace Nicholas from New Brunswick.
Senator Baker: George Baker, Newfoundland and Labrador.
Senator Watt: Charlie Watt from Nunavik.
Senator Ngo: Senator Ngo from Ontario.
Senator Meredith: Senator Don Meredith, Ontario.
Senator Beyak: Senator Lynn Beyak, Ontario.
Senator Wallace: John Wallace from New Brunswick.
Senator Raine: Nancy Greene Raine from British Columbia.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Colleagues, I've introduced the witnesses. Pauline Tessier has travelled from her home in Corner Brook, Newfoundland, and Helen Darrigan joins us from Oakville, Ontario. As I mentioned, they are joined at the table by Ms. Lickers.
Ladies, we look forward to your presentations, which will be followed by questions from senators. I'd like to ask Ms. Lickers to proceed first and then we will hear from the other two ladies. I'd like to suggest the committee hold their questions until we've heard the presentations.
I understand that Ms. Lickers has a written brief, speaking notes and a presentation. Due to the short notice, it has not been possible to have that translated into French. Could I have agreement from the committee that the documents could be distributed on that basis?
Hon. Senators: Agreed.
The Chair: Thank you. We could arrange to distribute those with the help of the page and we'll have copies made, if necessary, for everyone. Please go ahead, then, Ms. Lickers.
Jaimie Lickers, Counsel, Mi'kmaq First Nations Assembly of Newfoundland: Thank you, Mr. Chair. Thank you all for having me here this evening on behalf of the Mi'kmaq First Nations Assembly of Newfoundland. Our written submissions detail the organization and the history of what I refer to as the MFNAN. I don't propose to spend a lot of time discussing that but to sum up the mandate of the organization. Their purpose is to represent the applicants and the band members for the Qalipu Mi'kmaq Band and to lobby for the fair and equitable review of all applicants for band membership and Indian status.
I also don't propose to spend a lot of time discussing the history of what has brought us to Bill C-25 and the agreement for the recognition of the band. I think most of the people at this table are familiar with the history of the Mi'kmaq people of Newfoundland. I do think it's important to keep in mind that leading up to the agreement for the recognition of the band, the Mi'kmaq people of Newfoundland had been fighting for centuries to have their existence recognized. They had been marginalized in the province. They had been denied access to programs and services that are available to other First Nations people in Canada. They had to launch a Federal Court action to get the federal government at the table to negotiate the existence of their band. It's with that in mind that we're here tonight to talk about Bill C-25 and the modifications to the agreement for the recognition of the band.
I want to note that the preamble to Bill C-25 says that the bill is necessary to ensure the fair and equal application of the eligibility criteria and to protect the integrity of the Qalipu Band. I submit to you that is not the true purpose of Bill C-25, that the purpose of Bill C-25 is to shield the federal government, the Qalipu Band and the Federation of Newfoundland Indians from the liability that flows from the mismanagement of the enrolment process.
Fairness means procedural fairness. It means fairness for all of the applicants to the band. Is it fair that an individual is denied lifelong entitlement to band membership and Indian status because he or she forgot to sign a particular box on an application form or because they forgot to send in a long-form birth certificate? It needs to be remembered that the rights at stake dealing with the agreement for the recognition of the band are of the utmost importance. We're talking about heritage and self-identification of these individuals. The requirements of procedural fairness owed to these applicants do not change because the enrolment committee was overwhelmed by the number of applications.
Fairness means no retroactive application of modified eligibility criteria. Fairness does not mean modifying the application of the eligibility criteria such that those who applied after September 22, 2011, have a higher burden of proof in terms of self-identifying with their Mi'kmaq heritage.
Fairness is not informing applicants in 2013 that they will be required to produce extensive and often unobtainable information from 2008 or earlier.
The criteria for eligibility for band enrolment might remain the same, but the differential application of that criteria results in differential treatment. The differential application of the enrolment criteria could conceivably result in siblings having different status as band members and Indians under the Indian Act.
I submit to you that fairness is not shielding the responsible parties from liability for the mismanagement of the enrolment process. Fairness is not removing the legal rights of individuals who spent time and money doing historical and genealogical research and compiling their applications, and preventing those individuals from accessing any meaningful legal recourse to recover their damages.
Fairness is not denying individuals who have relied on their membership and their Indian status and made life-altering decisions based on their status and their band membership. Fairness also means ensuring that current band members and status Indians of the Qalipu Band have meaningful access to the protest provisions under the Indian Act in the event that their membership and their status are revoked. Currently, Bill C-25 does not allow Qalipu Band members who are removed from the order-in-council to access the protest provisions under the Indian Act.
I would like to turn for a few minutes to the problematic portions of the bill. Clause 3 of the bill allows the Governor-in-Council to amend the Qalipu Mi'kmaq First Nation Band order and remove the name of a person from that order, thereby revoking that individual's membership and Indian status. Currently, it is unclear on what basis the Governor-in-Council would exercise that power. There is nothing in the text of the bill that requires the Governor-in-Council to act on the advice of the enrolment committee or any other party.
Also, generally when a status Indian in Canada is removed from the Indian Register, that individual has access to the protest provision in the Indian Act that allows the individual to launch a fairly informal challenge to the registrar's decision to remove his or her name from the band list. By allowing the Governor-in-Council to remove names by way of an order-in-council, the registrar's hands become tied, and the individual who has been removed from the registry has no meaningful access to the protest provision under the Indian Act. The registrar is bound by a valid order-in-council.
This means that individuals who are removed from the Qalipu Band list by way of an order-in-council will have to launch costly judicial review applications, they will have to retain counsel and they will have to spend additional time and funds fighting for the recognition of their heritage. It's a further differential treatment of the Mi'kmaq people of Newfoundland.
Clause 4 of the bill is equally problematic in that it removes the legal right of persons and entities to claim damages against the federal government, the band or its counsel, or any other entity because they were removed or omitted from the band list. This provision insulates the federal government, the band, the council and the Federation of Newfoundland Indians from any liability flowing from the way the enrolment process was handled.
This constitutes the removal of a fundamental legal right that is granted to all citizens of this country. It is the role of the courts in this country to determine the liability and the damage as between the parties before it. To remove that right from the applicants and the band members is a fundamental denial of legal rights.
The Mi'kmaq First Nations Assembly of Newfoundland is opposed to Bill C-25. Our submission is that this bill should not be enacted into law and that all applicants should be evaluated on the basis of the original agreement for the recognition of the band.
Thank you.
The Chair: Thank you very much. We're just distributing your speaking notes and written submission. Thank you for that.
I'd now like to call on Ms. Tessier and Ms. Darrigan. I should mention that they, too, were given short notice for this hearing and have undertaken to provide us with written submissions later. So we'll be getting oral presentations from them that will be delivered to the committee after their testimony.
Ms. Tessier, you were going to begin, I believe. Please go ahead.
Pauline Tessier, as an individual: Good evening, honourable senators. My name is Pauline Scott-Tessier. First of all, I would like to thank you very much for the privilege and the opportunity to appear before you this evening to speak on any concerns regarding Bill C-25.
I am a non-status Indian. My Native ancestry was officially confirmed to me in 2011, at which time I self-identified as a non-status Indian.
Bill C-25 is of great concern to me and in others living on and off the island in that if it is passed in the present form, in my opinion, a great injustice will have been done to the Mi'kmaq people of Newfoundland once again. While 101,000 people have come forward making applications to the Qalipu First Nation Band, I believe there are many more who know of their Native ancestry but have not been able to produce the proper documentation required to become members of the band.
While these numbers are of great concern to my government and to the FNI, I have to wonder why government and the FNI did not do due diligence when establishing the possible numbers prior to processing applications. One only has to look back in time to see the number of children people were having. Do the math, and one can see that 101,000 is not such an outrageous number. I believe that the government and the FNI knew there were more than 8,700 Aboriginals on the island; however, both groups miscalculated, believing most people would not come forward.
My Native ancestor Grandmother Mary Joe-Park-Brooks has descendants numbering in the thousands, and they reside all over the island of Newfoundland and on the mainland of Canada. If you view the Corner Brook, Bay of Islands phone book, you will see that the name "Park" is the most predominant name in our area. Even though all Parks are descendants of hers, not all will gain status. We may all have the same bloodline, but where you live and your recognition date will play a major role in who in our family will be accepted and who will be denied. A brother may be accepted yet a sister denied.
The AIP was ratified, and applications to become members of Qalipu First Nation were accepted for a four-year period. In that four-year period, 23,877 people became registered status Indians and still others have letters stating that their names will be added to the founders list pending the outcome of this review.
Nowhere on the application form were you asked if you were a member of a band, if you self-identified, or when you self-identified. Why were these specific questions not asked on the application form? Why did it take over four years to get to this stage? How much revenue was collected by the provincial governments throughout Canada from people wanting to obtain proper documented proof of their Mi'kmaq ancestry, only to have the FNI and government change the rules midstream?
Under what is being termed as clarification, how many people sitting at the council table were actual members of the FNI and had self-identified as Mi'kmaq prior to 2008? How many of these people took part in Mi'kmaq cultural activities prior to this so-called clarification issue? Have all of these people submitted the appropriate historical ancestral documentation to prove their Native ancestry? Did all Qalipu council members unanimously agree with this supplemental agreement to clarify the enrolment criteria?
As a non-status Indian, I was and am very concerned regarding the integrity of the enrolment process, which has been agreed upon and is now being implemented by the Federation of Newfoundland Indians and the Government of Canada. My concern was so great that March 27 I wrote Minister Valcourt voicing my concerns.
I do agree that the government and the FNI should re-evaluate all applications; however, I do not feel any reassessment or clarification would be complete without the inclusion of ancestry.
As the main component one must demonstrate in order to gain status, why is this being ignored? Six thousand people have had their applications rejected without a right of appeal because they omitted a signature or an omission of a birth certificate. Yet the government and the FNI, in light of a lack of historical documentation, are willing to accept affidavits as proof of ancestry. Signed affidavits may be fine as a supplement but should never replace true ancestral documentation and historical reference. If proof of ancestry is being ignored in this re-evaluation, then, in my opinion, this reassessment is seriously flawed and lacking credibility, and it is obvious that the government and the FNI must consider ancestral background irrelevant.
Not all Natives in Newfoundland are connected to one another, and it is common knowledge that a document commissioned by the FNI entitled The Micmac Shore contains numerous ancestral flaws and errors. Yet it is my understanding this document was used as a guideline for status acceptance. If one uses documentation that is inaccurate as a means of verifying ancestry, it goes without saying that a great injustice will be done to all.
The FNI, government and the Mi'kmaq people are burdened with a great responsibility to make sure accurate information is put forth not only for recognition purposes but for the protection of future generations. This is the history of the First Nations people who have been ignored by two levels of government for 65 years. Inaccurate information affects the taxpayers of Canada, the Qalipu First Nation and our personal family history. How does one remedy a situation where a person has submitted inaccurate information, been accepted as Mi'kmaq, received status and later on a future generation determines that people were accepted without proper documentation? What opportunity will be afforded to these people to right a wrong?
Should this bill pass in its present form, people may be able to go to the courts for remedy. However, it will be a heavy financial burden to them, as government will not have to bear the cost of their past mistakes and those seeking remedy will not receive any monetary compensation. This bill in its present form will act as a deterrent to those wishing to commence litigation. When dealing with government, we must be ever mindful that government has long arms and deep pockets and can financially bankrupt not only families but any group of people.
We see these flaws, yet government is looking to pass Bill C-25 so that neither the Qalipu First Nation Band, nor its council and chief, nor government, can be held liable for past mistakes at the present or in the future. If my government felt confident that the work being done was above reproach, why would there be a need for Bill C-25? Obviously, my government must feel there are flaws, and the only way to remedy and protect itself and the Qalipu First Nation is through legislation.
It is also very troubling to me when Minister Valcourt stated to the House of Commons committee, "It was the rush to the golden gate." What golden gate? In gaining membership in any First Nation, people would have the ability to access non-insured health benefits, post-secondary education monies and a vote in the band elections. There is no reserve, so the members of the Qalipu Band will still pay taxes, as we always have done, as any other Canadian. Many of us have our own private health insurance and many of us are getting up in years. Therefore, most of us won't be using any secondary education funding. The big mystery I guess is why? Why did so many come forward?
It is my belief that many of us felt it was time to be recognized as a people. It is who we are. We have had to stay hidden for far too long, yet we have survived all attempts to be rid of us, and now the Aboriginal community is thriving.
Senator Lovelace Nicholas questioned Mr. Saranchuk as to how could you recreate a nation when they were always there, and why did the First Nation disappear in the first place? His reply was very telling. He stated:
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.
There is only one way the appropriate people can and will be identified, and that is through accurate ancestral lines, and this must be through proven historical documentation.
The FNI and government have identified 67 current communities on the island as Mi'kmaq communities, yet places such as Placentia, Fortune Bay on the southeast coast, Port au Choix, Bartletts Harbour and numerous other communities along the northwest coast have been excluded. History shows us these areas were settled by the Mi'kmaq. Even the community where our most famous and legendary Mi'kmaq, Mattie Mitchell, lived is omitted from this list. Why?
Families who have always known of their Mi'kmaq roots are being denied acceptance because they live outside a prescribed area. It is well documented that the Mi'kmaq, like other Native groups, were not a sedentary group but, like other indigenous groups in this country, moved around following the food and populating a place where they could sustain a living.
I, like many other applicants, was born, raised and still reside in a recognized Mi'kmaq community, Corner Brook. I was 58 years old before I learned of my Mi'kmaq ancestry. Once I learned, I did inquire as to how to join a band in my area. However, like many others, I was told that the bands were not accepting any new members and that I should make application to the Qalipu First Nation Band.
Since learning of my ancestry, I have identified publicly, I have educated my family to their ancestors, I have joined numerous Facebook groups to learn whatever I can of my Aboriginal culture and traditions. I have encouraged my family to come forward and make application to the Qalipu First Nation Band and take their rightful place. I have attended National Aboriginal Day ceremonies. I have travelled to Nova Scotia and visited and spoken to Aboriginal people there, telling them that I just learned of my roots, and I have listened to anything they are willing to share with me. I have embraced who I am, and I am proud to say I am of Native descent.
However, because of this so-called clarification, I, like thousands of others, will not meet the requirements to be recognized on the founding members list. Why? Because the supplemental agreement has identified only a few ways a person can self-identify. This will leave thousands of legitimate applicants who should be recognized as Mi'kmaq out of the enrolment process, with little likelihood of legal recourse.
Many of us were not aware of our ancestry before the recognition date and therefore could not identify in either of the ways dictated by the Qalipu/FNI and the Government of Canada. The application form we signed had a release form that was the last page of the application, and on page 2 a privacy statement identifying oneself as a member of the Mi'kmaq Group of Indians of Newfoundland.
However, if we all submitted and signed the application before the recognition date, we would have been accepted under the same guidelines as those who already appear on the list. However, because we submitted our applications after the recognition order, we are being subjected to a much more stringent set of rules, making for a two-tiered system.
Case in point: I have family members whose spouses are accepted as founding members of Qalipu. These people never identified as Mi'kmaq. They were never members of the band. However, they were accepted because they signed an application form prior to the recognition date. Their spouses, who applied after the recognition date, lived the exact same lifestyle. However, because their application date was after the recognition order, they will be denied. I ask: Is this fair and equitable treatment?
Likewise, many of our family members live outside a Mi'kmaq community. They visit their relatives when they can, who reside in Mi'kmaq communities. When this process began, signed affidavits were accepted to prove one's connection to a Mi'kmaq community. Now, this too has been clarified and people have to be forced to submit telephone records, et cetera, to prove they visit and/or keep a connection to the community.
What about the people who left Newfoundland and cannot afford to return home to see family, yet still maintain a connection with the community and the family? Does living outside a Mi'kmaq community or the island of Newfoundland make one's blood any less Native?
Senator Meredith, you previously asked this question of Mr. Saranchuk: ". . . has it come to your attention that individuals may have hidden their identity for fear of discrimination in some way. . . ." He couldn't answer the question, but I can.
Yes, there was fear of discrimination from people who were not of Native ancestry. Our people were discriminated against from an employment perspective and were also treated as social outcasts or undesirables. Our families wished to spare their descendants this treatment.
In my pursuit of my ancestry, I learned that my great uncle worked in Corner Brook at the pulp and paper mill and was fired from his job because he was Native. In his granddaughter's words, "He was fired because a White man needed his job." After learning this, I understood why there was a need to keep our ancestry hidden and why my father never told me and why he welcomed everyone into our home and he taught us to respect all people, no matter their colour, ethnic affiliation or religion.
I believe Mr. Reiher summed it very well when he appeared before your committee and stated:
. . . the purpose of Bill C-25 is to achieve certainty and clarity. The Mi'kmaq people 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.
Where does one see fairness and equality afforded to all individuals in that statement? I see it as government and the FNI attempting to thwart justice. Who sitting around a negotiating table will take responsibility for again denying a Native people recognition? Will it be the FNI or the government? Isn't 65 years long enough?
Not long ago our government apologized publically to First Nations peoples across Canada for the terrible injustice of the residential schools. We have learned of the experimentation on Native children. Have they so soon forgotten the lessons of the past? Today they seem ready to embark again on another terrible injustice by denying people with Mi'kmaq ancestry because they may not fit the mould created by FNI and government bureaucrats.
Our government recognizes and assists people who come here from all over the world. Isn't it only fair that my government finally give the recognition that is due to the descendants of the First Nations people who inhabited and settled the Island of Newfoundland before the arrival of any European?
Once again, I thank you very much for this opportunity that you're giving me this evening. It is our last hope to correct an injustice in the making, therefore I ask you to use your power to make the proper amendments to this bill before another wrong has to be corrected. We are all concerned about the integrity of the enrolment process. Due diligence is required; an injustice is in the making at the present time. Please fix it now and not in 50 years when many of us have passed on. Thank you.
The Chair: Thank you very much, Ms. Tessier. Ms. Darrigan.
Helen Darrigan, as an individual: Good evening, Mr. Chair, honourable members of the Senate committee and staff. Thank you for the privilege of appearing before you this evening to present my concerns on proposed Bill C-25, which was introduced in the House of Commons on February 25 of this year.
The news release issued by the Government of Canada that day stated that the Qalipu Mi'kmaq First Nation act will ensure that all applicants are treated equitably and fairly.
I am here this evening to share with this committee and hopefully demonstrate why in my opinion the passing of Bill C-25 will do nothing to ensure that all applicants are treated equitably and fairly and, in fact, that it will do the opposite.
I was born and raised in Lark Harbour, Bay of Islands on Newfoundland's west coast. Lark Harbour is one of the geographic locations of the Mi'kmaq group of Indians on the Island of Newfoundland, and Bay of Islands was recognized as a pre-Confederation Mi'kmaq community.
Many of my ancestral fathers and mothers have lived in this area for more than six generations. I left home in 1970 at the young age of 17 and a half to seek employment in Ontario. And although I have lived in the Greater Toronto Area for some 44 years, I have strong community and cultural ties with Lark Harbour, which, like all Newfoundlanders, I still refer to as home.
Whether the government and the Qalipu Band accept me as a member remains to be seen. Regardless of the outcome, I am proud to acknowledge my Mi'kmaq roots and will always cherish them. From an Aboriginal perspective, I am a descendent of John Matthews Brake, son of Ralph Brake and Jane Matthews, and his wife Elizabeth Blanchard, the daughter of William Blanchard Senior and Elizabeth Joe. I made an application to the Qalipu Mi'kmaq First Nation Band in March of 2012.
Pauline and I met in early 2012 through our mutual interest in genealogy. Among other things we had a keen interest in staying informed on the issues affecting the Qalipu Band. When the news finally broke in July 2013 that a supplemental agreement had been signed and that a review was imminent, some people were not surprised. But the masses knew nothing of it until they received a letter from Aboriginal Affairs some months later, in November of 2013. In fact, there are still applicants who have not received a letter.
In April 2013, Pauline and I decided to start our own social media group called Friends of Qalipu Applicants. This group was formed to keep people informed of what was unfolding. By word of mouth, we have 2,000 members at present from Newfoundland across the country and beyond. Our mission has been to present all the news factually from reliable sources and, as laymen, to condense volumes of information in easy-to-understand language.
This has included comparing the 2013 supplemental agreement to the 2008 agreement in principle and highlighting the differences. This comparison document formed part of our submissions to the House of Commons standing committee and, again, to this Senate committee. We helped thousands of people understand and get through the November 2013 request for additional documentation. One would think that this kind of help would have come from the government and the band.
If one does not understand the context or climate under which this bill was conceived and introduced, and the inequality issues underlying it, the bill would appear to be fairly straightforward and merely an agreement between the parties. However, we do understand these issues and what lies beneath the surface, which is why we are adamantly opposed to it in its present form — and not just in the case of how it will impact the Qalipu Mi'kmaq First Nation and the Mi'kmaq people originating from Newfoundland, but for the precedent it sets for future Aboriginal negotiations between the government and other First Nation bands across Canada.
Every First Nation should be aware of the bold statement this proposed bill suggests, which is this: If we, the government, make a serious mistake, we are not accountable. We will just pass a law and that's that. Except this is history and people's ancestry and lives we are talking about, not some incidental.
Honourable members, I wish I could comment solely on the bill, but it is impossible to say why I am opposed to its passing without going into some background and details of the agreements in place.
Number one, a two-tier system has been created. Saying publicly that the supplemental agreement does not change the agreement in principle does not make it so in the minds of those grounded in reality. There have been changes, maybe not in the basic criteria but certainly in the details and, as they say, the devil is in the details.
What has changed is what is acceptable documentation for, namely, self-identification and group acceptance. If what is acceptable were applied equally to all applicants from day one, it would be much more palatable, but it is not. It is only being applied to applicants who made application after September 22, 2011. This change sets up a two-tier system for applicants and in retrospect. Already, we are divided by design.
How has this been accomplished? It has been accomplished by retroactively introducing a point system created to disenfranchise certain categories of applicants —applicants who cannot possibly get enough points to qualify. For example, out of a possible 27 points, 18 points relate to membership and activities, many of which were never available in many recognized Mi'kmaq communities. That left only nine points, far short of the 13 required. Then, three points were given for residency on the island of Newfoundland, so that left a possible six points of a required 13. I need not go on further about the point system. I believe the honourable members get the idea.
The next point is that resident and non-resident applications, which were perfectly acceptable under the original agreement, were suddenly divided and intended to be conquered by establishing heinous hoops for applicants to jump through, which are far too numerous to list given today's timelines and are questionable at best under constitutional and human rights, not to mention the Indian Act. Phrases were used such as "The connection must go beyond close contacts with family members and include participation in the cultural and social life of Newfoundland communities forming the Mi'kmaq group of Indians of Newfoundland."
We could not participate in something that wasn't there or available in our recognized Mi'kmaq communities, and family is the backbone of both Newfoundland and Mi'kmaq life. How can you separate them?
However, we have been made to feel like frauds, and every attempt to portray us as such has been deliberately utilized.
For the information of this committee, you may wish to know that roughly 50 per cent of the current Qalipu membership are non-residents. So I ask: At what point did being a non-resident become a problem?
It is important for you to note, honourable senators, that this new interpretation of the criteria for enrolment applies only to applicants making application after September 2011. Therefore, an agreement with the process that was originally intended to heal injustices of the past is more divisive than ever before because it creates different classes of applicants. Here are some examples: Parents have status and children don't and vice versa; some siblings and cousins have status and others don't; one sibling has no right of appeal due to a missing signature — nothing else is different; two neighbours, both with legitimate ancestry, living in the same community, will be divided and scrutinized by a before and after date — nothing else is different; applicants are being further penalized for leaving Newfoundland to make a living.
Number two, ancestry must be reviewed for everyone. When we heard about the review, we reasoned that it wasn't an entirely bad thing. After all, it was addressing the problem of the 70,000-plus unprocessed applications. We took for granted that this review would include a complete review of ancestry for everyone. However, we learned in March that this is not the case. In fact, one prominent community member said publicly that we were promised that ancestry would not be reviewed. It naturally makes one wonder what else was promised.
As my colleague, Pauline, has pointed out in greater detail, ancestry is the fundamental basis of acceptance as a status Indian. Without it, everything else is a moot point. So what problem do we have with not reviewing ancestry from day one? Quite frankly, this: If errors and unintended consequences have occurred around other parts of the criteria, then most certainly errors will have been made in the case of ancestry. For the sake of history and integrity of family heritage, any uncertainties must be reviewed to the fullest extent possible for the following reasons. First, Qalipu enrolment clerks did not have to know anything about genealogy, which was hotly debated at the time because it meant that there was actually no one to help people ensure that their bloodlines would stand up to scrutiny. Many people had to add affidavits where documents were missing, and this is acceptable. Sometimes multiple affidavits were used in order to establish blood lines. However, we have heard that some people actually bought affidavits for both ancestry and group acceptance. This is more than reason enough to scrutinize ancestry from square one. Who knows, maybe 100,000 people don't qualify?
Next point: Newer genealogy research has been made known that challenges or contradicts what formed earlier FNI-commissioned research into family backgrounds. One such reference is called The Micmac Shore, and it was quietly pulled from use by the Qalipu Band partway through the second stage.
Next point: There are instances where people's Aboriginal ancestors have been unknowingly or knowingly borrowed or merged into completely fictitious people to meet the criteria. As a result, whole family lines of innocent people have made applications under unproven or false lines. The worst part is that they may not even know it's a false line.
So absolutely, ancestry must be reviewed, or we're standing beside a set of dominoes.
My last point is why I believe most applicants will not get fair and equitable treatment. We have already been labelled publicly by the Minister of Aboriginal Affairs, the Qalipu chief and others as greedy and unauthentic. How can we expect to get fair and equal treatment when both parties are going into the review with this attitude?
With the exception of the appeal master, everyone on the enrolment committee, all five of them, report to either the government or the FNI/Qalipu.
How did we find ourselves in this situation? By choosing to ignore the potential number of applicants when it became apparent after stage one in 2009; failure to take action and then allowing people to make applications under false pretenses, up to and including November 30, 2012; private meetings with Mr. Fred Caron to devise a plan to get out of the mess; the supplemental agreement designed to get rid of people; a time-sensitive request for new documentation that would challenge a legal team of Harvard grads; and introducing proposed Bill C-25, which we are convinced is meant to pave a smooth road for getting rid of people without complications.
On June 3 before this committee, Mr. Reiher said:
. . . the government does not wish to run the risk of seeing amendments to the order being successfully challenged.
Why do Mr. Reiher, the government and the FNI Qalipu feel that they can be successfully challenged? This is something to think carefully about.
Also on June 3, Mr. Saranchuk, answering Senator Lovelace Nicholas' question about why the First Nation disappeared in the first place, said:
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.
Who are the appropriate founding members?
In summary, if this agreement were only meant to be for FNI members or Newfoundland residents, people would probably have grumbled for a while, but they likely would have accepted it; but it wasn't designed that way. It had what we all thought were clear criteria, which we found out after the fact were loosely enforced to allow enough members to be able to officially form a band. They actually needed a certain number of people to do this. In the process, they awakened a sleeping giant or, in this case, a lot of sleeping ancestral giants.
Now, how to deal with that. We all know you can't put Pandora back in the box once she's out. How will they reconcile what has happened against the Indian Act, which has no provincial boundaries, for one thing? How will they reconcile 65 years or three generations of people who have been denied their existence? How will they reconcile the process we are being put through against the constitutional and human rights of people? How will they reconcile ancestral history going down incorrectly? How much money will they waste trying to look good themselves, rather than admitting that they have failed us and doing the right thing now? Is this the best solution they could find?
We wish we could say that our questions have been answered, but we can't. We wish we could just give up and say, "It's not our problem." But it is our problem, and we must do the right thing as people for the people and trust that it will work out if we do that.
You all can make a difference. I strongly urge you, honoured senators of this committee, to use your wisdom and influence to recommend that Bill C-25 not be passed in its present form, if at all, pending further study of this matter.
Wela'lin, thank you, for allowing me the opportunity to address you this evening on what I consider an issue of very grave concern.
The Chair: Thank you very much to all the witnesses. I know you ladies worked very hard on this presentation, given the short notice. We're grateful for the thought you put into it.
I must tell you and the people in this room that we have been given special permission to sit while the Senate is in session. It's currently in session but, unfortunately, as you've perhaps heard, the bells are ringing. We have been summoned to a vote on some proposed legislation that is before the Senate. I've consulted with members of the steering committee, and it has been agreed that the committee will suspend to allow members to fulfill their duty to vote in the chamber. The vote is taking place at 8 p.m.
Rather than start with questions and not have enough time to do them justice, with agreement of the committee I will suspend the committee now. Please await our return. I know that we'll be anxious to have questions and a dialogue on your presentations. We will go to the chamber to carry out our duties on pending legislation. Thanks for your understanding.
(The committee suspended.)
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(The committee resumed.)
I'd like to thank everyone for their patience in allowing us to do our parliamentary duty.
We've heard from the witnesses, and the floor is now open for questions from senators. I'd like to take the liberty of asking one question of Ms. Darrigan and Ms. Tessier. I understand, Senator Dyck, you are going to defer to Senator Baker, who is the critic of the bill. Welcome to our committee, Senator Baker. Thank you for being here.
Maybe I'll just start off with one brief question for Ms. Darrigan and Ms. Tessier. Our committee received a letter from you in March. It contained concerns you had raised regarding the enrolment process. I know you've added a lot more in these fulsome presentations tonight. We did circulate your letter and an article that you had written.
In that letter, I believe you acknowledged that none of the criticism you brought forward had to do with the legislation that is now before this committee but rather with the 2013 supplemental agreement and the enrolment process as a whole. Is that still a fair comment on your concerns, that it's primarily with the supplemental agreement of 2013 and the enrolment process, may I ask?
Ms. Darrigan: I don't recall, but I would have to look at the document and the cover letter that was sent to the committee. I don't recall saying that I didn't have a problem with the legislation before us, as in Bill C-25, which is what I presume you're referring to. In essence, I don't have a problem with that as legislation if there was a necessity or reason for it and one did not know the facts behind it.
Just to clarify, I do have trouble with it, yes. If you got that assumption from my letter, I don't believe that's correct.
Ms. Tessier: No, I do have trouble with the legislation. It may be the way the letter was worded, I don't know, because we were really rushed when we got things together.
Yes, I have trouble with the legislation, especially when I see that if mistakes are made, nobody is going to be held accountable here. I feel somebody has to be accountable. We're talking about people's lives, people who have been denied for 65 years. That's from 1949. Yes, I do have a problem with it.
The Chair: Just to be fair and for members of the committee, I was maybe imperfectly summarizing the second last paragraph of your letter, which said, and I'm quoting from it:
While we appreciate that the purpose of the standing committee review is to deal with Bill C-25 and not the agreement itself, we would be remiss if we did not bring the larger context to the attention of the committee to inform you of the issues that may bring to bear on the amendment of and/or passing of this bill into law.
I think you've clarified that, thank you.
Senator Baker: Thank you, committee members, for allowing me an opportunity to question the witnesses and to thank the presenters here today for their very excellent presentations.
I'd like to follow a line of questioning to Jaimie Lickers, who is legal counsel and is experienced in the area of the Indian Act. First of all, I'd like to clarify what the present eligibility requirements are as we go forward during this reassessment process. As I understand it, only one section of the eligibility requirements is being changed.
I'm reading from 4.1 of the eligibility criteria of the agreement of 2007, a portion of which still applies:
. . . is eligible to be enrolled as a Founding Member if that individual . . . in the assessment of the Enrolment Committee
(a) is of Canadian Indian ancestry, whether by birth or adoption; and
(b) (i) on or before March 31, 1949 was a Member of a Newfoundland Pre-Confederation Mi'kmaq Community; or
(ii) is a descendent, whether by birth or adoption, of a person referred to in subparagraph 4.1(d)(i); and
(c) is not registered on the Indian Register on the date of the Recognition Order . . .
This is the section that changed.
What I'm now going to read is the only section that changes. In other words, you have to prove your ancestry, but what has changed is "self-identifies as a member." Am I correct that this is the change in qualifications?
Ms. Lickers: This is the key change, yes, in that the wording of the agreement has always required that an applicant self-identify as a member of a Mi'kmaq group of Indians on the date of the recognition order.
Senator Baker: After they qualify that on or before March 31, 1949, an individual was a member of the Newfoundland pre-Confederation Mi'kmaq community or is a descendent. Those qualifications are still in there. For people who are suggesting that all you needed to do was self-identify, that's not correct, is it?
Ms. Lickers: No, it's not correct. The key change to the provision, the subparagraph that you're referring to, senator, is that the changes to the 2013 agreement modified the application of subsection (d)(i); before a signed application form was proof of self-identification. So filling out the application form, signing the application form was proof that you self-identified.
Now, as a result of the changes in the 2013 agreement, if you signed your application form after the date of the recognition order, it is no longer sufficient evidence of self-identification on the date of the recognition order. So if you filled out your application and signed your application after the date of the recognition order, you now have to provide extensive documentation proving that you self-identified before the date of the recognition order.
Senator Baker: In the past, yes.
Ms. Lickers: This was not something applicants were ever informed they had to do. Not a lot of people keep documentation from years gone by. They're asking for telephone records, flight itineraries. Most of the telephone companies won't even provide telephone records back that far to show these people were staying in contact with their Mi'kmaq communities.
Senator Baker: Or pictures in a newspaper.
Ms. Lickers: Or pictures of yourself at a ceremonial function where most people don't take photos because it's not proper.
Senator Baker: Where's the newspaper in Lark Harbour, Newfoundland? Let me get to short snappers on the legal question here for you. Clauses 3 and 4 are the most offensive clauses to you, I believe. You referenced them. It says that the Governor-in-Council may, by order, add the name of a person or remove the name of a person from the schedule of the order, along with the person's date of birth. In order, the Governor-in-Council can do it by order.
Now, let me ask you a direct question. First of all, removing names and adding names, in the supplementary agreement, it says:
. . . the Enrolment Committee will provide to the Parties a single Founding Members List for the purposes of the Agreement, and the Minister will recommend to the Governor-in-Council that this Founding Members List be substituted for the current schedule to the Recognition Order.
So the entire list is to be put into the recognition order. Why, then, is the minister seeking authority, instead of adding the list, as your agreement says, to add and subtract names?
Ms. Lickers: We have the same question, senator. It's unclear. That is a question that would have to be put to the drafters of the legislation, why they feel it's necessary to have that added power.
Senator Baker: Let me read you very briefly, Court of Appeal of Ontario, 2009, Etches v. Canada, 2009, Carswell Ontario, 1004, paragraph 36. This is the Ontario Court of Appeal, one of the top highest courts in this country, apart from the Supreme Court of Canada:
Prior to the 1985 amendments to the Indian Act, the Governor-in-Council could exempt any Indians or Bands from any part of the Indian Act, including the registration provisions. The 1985 amendments, however, removed from the Governor-in-Council the authority to exempt Indians from the registration sections of the Indian Act and this . . .
So, in effect, this provision is in variance with the provisions of the Indian Act.
Ms. Lickers: Exactly.
Senator Baker: Yet those very provisions of the Indian Act apply to this agreement.
Ms. Lickers: Exactly.
Senator Baker: Okay, I have one final question.
Let us go to paragraph 4, which says that you can't sue the minister if your name is removed; you can't sue the band council; you can't sue anybody. No action lies against the Governor-in-Council.
The minister and the officials used two examples in saying that this is nothing new because this has been done before under the Indian Act. I was a member of Parliament when those two examples came into being. Those two examples applied to persons who had forgotten to put their names on the list prior to September 4, 1951, which has nothing to do with this similar thing.
Do you know of any other provision in law pertaining to the Indian Act in which you don't have the authority to sue pursuant to this act in similar circumstances — where your authority has been taken away to seek redress in the courts?
Ms. Lickers: I know of no examples, and I would challenge anyone to point to an example where that has happened since we enacted the Charter of Rights and Freedoms in this country.
Senator Baker: What luck would you have in applying to overturn an order-in-council that would remove your name from the Indian Register? What luck would you have to overturn an order-in-council doing that?
Ms. Lickers: According to the case law from the Ontario Court of Appeal, you would have none because the registrar cannot go behind a valid order-in-council. As long as there's an order-in-council removing an individual's name from the band list and from the Indian Register, that individual would be unsuccessful in court.
Senator Baker: Thank you.
Ms. Lickers: It's problematic, but that's the summary.
Senator Lovelace Nicholas: Welcome here tonight.
I can certainly understand your plight. Were any other First Nations consulted when this agreement came into effect? You weren't consulted yourselves as a group?
Ms. Tessier: No, not us.
Ms. Lickers: None of the applicants, to my knowledge, were consulted.
Senator Lovelace Nicholas: Who came up with the bill, just the government themselves?
Ms. Lickers: I believe they consulted with the Federation of Newfoundland Indians.
Ms. Darrigan: That's my understanding.
Ms. Tessier: That's my understanding.
Ms. Lickers: The membership of the Federation of Newfoundland Indians, as I understand it today, is comprised only of the band council from the Qalipu Mi'kmaq Band. That is the membership of the FNI.
Senator Lovelace Nicholas: Do you think this agreement was changed due to the influx of First Nations people applying for membership and that the government refuses to fund the extra influx of people?
Ms. Darrigan: Yes, I believe that's true.
Ms. Tessier: Me also. I believe that that's what they did.
Ms. Darrigan: It's about numbers.
Ms. Lickers: Agreed. I think it should be kept in mind that the applicants did not draft the eligibility criteria. They should not be deprived of their legal rights because the eligibility criteria were drafted in a way that allowed 101,000 people to make a credible application.
Senator Lovelace Nicholas: Thank you.
Ms. Darrigan: Senator Lovelace Nicholas, I would like to add that, for every person I know that made an application, I also know another person who did not make an application.
Senator Lovelace Nicholas: So not everybody was informed?
Ms. Darrigan: They just didn't want to be —
Ms. Tessier: Not everybody wanted to be recognized — some people because of their age; some people just stood back and said —
Ms. Darrigan: Too complicated.
Senator Lovelace Nicholas: Discrimination. Okay. Thank you.
Senator Raine: Thank you very much. It is truly interesting to hear what your experience has been. I find myself, first, admiring so much the fact that 100,000 people are coming forward and celebrating their Aboriginal ancestry. We are in a new generation where people are proud of their roots, and that can only be good.
I'd like to ask you if, during the last few years, you have had the opportunity to study the Sami people from Norway and what you think about how their organization is structured.
Ms. Darrigan: I haven't studied their organizational structure, but I'm aware of them to some extent from my genealogy studies.
Ms. Tessier: That's like me as well. I haven't studied it; I just know about it, that's it.
Ms. Lickers: The same. I can't speak to their organizational structure in-depth in any regard.
Senator Raine: We were very fortunate a few years ago. Not everyone was here at the luncheon, but we had a luncheon with people from the Sami Parliament. Sami are the Aboriginal people of Norway. They have some very specific Aboriginal rights around fishing and herding the reindeer in the Far North, but there are many people who live throughout Norway who declare Sami heritage and, by registering as a Sami person, earn the right to vote in an election for a Sami member of Parliament.
I asked the people there, why would you choose to do that if you lived in Oslo? What are the advantages? What are the entitlements for a Sami person in Norway? They were a bit taken aback and they said "What do you mean entitlements?" I said, "What do you get for being Sami?" They said, "We get the opportunity to vote for someone who represents us in Parliament. We're very proud of our heritage and we like to celebrate it — the arts, the culture and their history." I said," Do you get any special entitlements, things other Norwegians don't get?" They said, "No, of course not. We get the same benefits as every Norwegian, but we're proud to be Sami and the more Sami people there are in Norway, the better it is."
I can't help feeling that is an admirable direction. Maybe we have an opportunity here to do something different. What do you think about that aspect?
Ms. Tessier: Well, 65 years has passed since Newfoundland joined Confederation, and, for 65 years, we've had to look at what Canada has done for Newfoundland and Labrador and for the Native people of Newfoundland and Labrador. I think it's time, before we go and look at another structure or another group of people, to look at our own people first. We have to deal with our own problems here in Canada. I see it right now as a problem. For 65 years without recognition, Canada has had a free ride, when you look at it — our resources, everything. Right now, I'm just saying that I'm proud I'm a Native. Whether I get anything out of this or not, I am proud of whom I am.
Before we go forward, I think we need to get the recognition situation under control. Then, maybe years down the road, we can look at the Sami, but not right now; we have too much on the table to lose.
Ms. Darrigan: I'm not sure that the place to start with that kind of experiment or with that kind of suggestion is with the Mi'kmaq of Newfoundland. I'm sure if it was suggested nationally, it would take quite a bit to get off the ground. There are many issues. We can't agree on this issue, but it's an admirable thought.
Ms. Lickers: I think there are some similarities between the example you raise, senator, and the feeling and the attitude that I get from a lot of applicants to the Qalipu Band. For most applicants, this is not about entitlements; it's a landless band. There are no land rights, which mean there are very limited tax exemption rights.
As to the number of people who will access post-secondary education funding, most of these people are quite on in years. They probably have no plans to go back to school. It's recognition of their heritage and their identity as a people that has been denied for decades. That is what is important to the applicants. That's why the enrolment process needs to be fair and equitable and not applied in a way that is going to cause further division among this group of people where you're going to have siblings, one who will have status because they applied before September 22, 2011, and one who won't because they applied on September 23.
The Chair: As chair, I've allowed some latitude, but I think it's probably important for me to draw to the attention of members of the committee that we are looking at Bill C-25. We are not looking at the agreement or the supplementary agreement. We have no authority, really, to deal with that.
I would appreciate it if members — and Senator Baker has done that — would focus on the bill before us, even though I acknowledge that it makes reference to the agreement and the supplementary agreement. They have been signed and concluded and are not a part of our review. I'll just make that comment and ask members to bear that in mind.
Senator Wallace: Thank you to each of you for your presentations. They were very thoughtful.
When I listened to what each of you had to say — and to some extent the chair has clarified this — I sensed that at the root of your concerns is a difference of opinion over, in particular, the 2013 supplementary agreement, which was to create greater precision and proof that would be required for self-identification as it relates to the 2008 recognition agreement.
I think my sense of part of what you had to say is the impression that the government is imposing this solution, through the 2008 agreement and the supplemental agreement and Bill C-25, on the Qalipu people. My sense of it is that that is not the case. My understanding is that there has been an extensive period of discussion and negotiation. There was even a lawsuit prior to 2008 involving the Federation of Newfoundland Indians.
It was through that that the government and the Federation of Newfoundland Indians came to certain conclusions to provide for a landless band of Qalipu Mi'kmaq in Newfoundland.
Ms. Tessier, I might direct this to you. Would you not agree that the agreements that have brought us here today — although we are dealing here, as the chair points out, with Bill C-25, the base of that, of course is the other two agreements of 2008 and 2013 — and the standards and criteria, the documentation, the detail required to prove ancestry and acceptance by the Mi'kmaq community arose as a result of direct input of the Federation of Newfoundland Indians? It was not simply the government saying, "This is the way it is," but there was a considerable period of involvement with the Federation of Newfoundland Indians. Would you not agree with that?
Ms. Tessier: They probably did have extensive negotiations. However, I think some of those negotiations were flawed. We already saw, in 2012, how many people were applying for status. I can't say because I wasn't knowledgeable enough and didn't know, back in those days, that I was of Mi'kmaq ancestry. So I don't know too much about the negotiations. However, as a Mi'kmaq person myself, I do feel that, probably, there were things agreed to that none of us will ever be party to. Whether the government imposed it, we will never know because those negotiations are kept quiet.
Senator Wallace: But would you not agree that those negotiations were with representatives of the Native people of Newfoundland, through the Federation of Newfoundland Indians? Is that not correct?
Ms. Tessier: The Federation of Newfoundland Indians doesn't represent all Mi'kmaq in Newfoundland.
Senator Wallace: Would you not agree that Bill C-25, which would create this list of founding members that could or would substitute for what's here today, does not amend, doesn't modify, the original agreement of 2008 and the supplemental agreement? Not all of your concerns are with that, I realize; I've heard some of your particular comments on Bill C-25. But would you agree that Bill C-25 is another issue? It is not getting to much of the concerns that you have expressed?
Ms. Tessier: I think, by passing Bill C-25, we are going to be ignoring some of the issues being brought forward here tonight. If the government passes Bill C-25, as it is right now, what recourse do any of us have to go back against government if a wrong has been done? What recourse do we have? We have nothing. We can't fight it in the courts. Legislation will take precedence.
Senator Wallace: There is a provision that would allow appeals, if somebody's name was not on the list, through the appeals master and so on, but I won't get into that. I'm not here to justify the bill; I just want to understand what your concerns are.
Again, forgive me, chair, I'm sort of reverting back prior to Bill C-25 when I say this, back to the 2008 recognition agreement and the supplemental agreement. Would we all not agree that the integrity and credibility of Qalipu Mi'kmaq ancestry and heritage and culture are important and should be preserved? To do that — and I sense that this is at the root of everything we're talking about here — there has to be a reasonable process in place to determine those who have that strong cultural connection with the Mi'kmaq community. Again, my understanding was that that attempt, that desire, that need to protect that Qalipu cultural integrity is what all of this is about. That's really what Bill C-25 builds on, and that principle, as I understand it, is embedded in the supplemental agreement. You may disagree on whether it protects the credibility and integrity, but, certainly, those of the Federation of Newfoundland Indians didn't. My understanding is that the Qalipu Band Council ratified the 2013 agreement. They ratified it and agreed and said those conditions were appropriate to establish that link to the Mi'kmaq past.
What would your comment be to that?
Ms. Tessier: On the integrity of the —
Senator Wallace: Yes. At the root of it, isn't that of utmost importance and what Bill C-25, as the last step in the process, is seeking to do?
Ms. Tessier: I believe Helen and I are here tonight because we are also very concerned with the integrity of this. The problem is, when you see a document that was called The Micmac Shore and was commissioned by the FNI and we know there are serious flaws in it, then there is a problem with the integrity of the system. So something has to be done.
Ms. Lickers: If I may as well, if the purpose of the amendments to the original agreement for the recognition of the band, if the purpose of the supplemental agreement was to ensure the integrity of the band list of the Qalipu Band, the supplemental agreement missed the mark.
Establishing an artificial cut-off date based on when an individual signed an application and applying different criteria to individuals based on the date they signed their application form, which does not go to their ancestral connection, to their connection to a Mi'kmaq community, to their self-identification, that is not the way in which you protect the integrity of the membership list of the Qalipu Band.
Senator Wallace: I think we would all agree — maybe we wouldn't; I won't speak for anybody else — it would seem reasonable to have fair and reasonable requirements, document requirements, something that would have to be produced to establish that linkage to a Mi'kmaq ancestry. As I read the supplemental agreement of 2013, that's what it attempted to do. You may disagree.
Ms. Lickers: Only if you applied after a certain date. If you applied before a certain date you just had to sign an application form. The individuals who submitted their application forms before September 22, 2011, haven't had to produce any of that documentation.
The applicants who applied later in the process are getting all the criticism, but in reality the applicants who applied before September 22, 2011, had a lower threshold of evidentiary proof and may be less entitled to Qalipu membership than those who applied later in the process.
The supplemental agreement does nothing to protect the integrity of the band. Nothing.
Senator Wallace: We may differ on that conclusion. Thank you very much.
The Chair: I'm tempted to ask Ms. Lickers, just before I turn to Senator Dyck, we have talked about the 2008 agreement and the 2013 agreement. Would you agree that Bill C-25 does not modify or change those agreements in any way?
Ms. Lickers: I would not agree specifically because section 3 modifies the recourse that existing band members have to protest the removal of their names from the membership and the registry lists. It treats Qalipu Band members who have already been granted membership differentially from every other registered status Indian in Canada.
Senator Dyck: Thank you for your answers in the last two sessions. It's clarified it for me. I was getting quite confused, so it's quite clear to me there are different standards being applied depending on the agreements, and it is based on the date of the agreement as opposed to anything to do with a person's ancestral link to the Mi'kmaq, and that if you applied before the supplementary agreement you could be accepted when you really shouldn't have been accepted, and if you apply after —
Ms. Lickers: Pardon me, before the date of the recognition order.
Senator Dyck: The recognition order comes after the supplemental agreement?
Ms. Lickers: No, the recognition order was before the supplemental agreement.
Senator Dyck: Clearly there are some problems here, and the chair is trying to have us focus on the bill. You have made recommendations within your submission, Ms. Lickers, with regard to the bill, and that's what I was thinking: How do we go forward?
One of the things that could be recommended was do we totally reject the bill? Is the bill amendable? What can be done? For instance, I believe you said we should strike clause 4, whereby there is no appeal. Can clause 3 be amended to make it suitable? It seems to be contravening the Indian Act, so I'm wondering what your recommendations are with respect to the bill.
Could we have all the witnesses, if they would like, say what the route forward is with respect to the four clauses in this bill? What do we do? What do you recommend?
Ms. Lickers: My issues are largely with clauses 3 and 4 of the bill, clause 3 being the provision that allows for the removal of names from the Qalipu Band list by order-in-council.
Our first submission would be that this provision be struck in its entirety. Alternatively, at a minimum the clause needs to make clear on what basis the Governor-in-Council is going to remove a name from the band list. There is nothing in the bill, as it's currently written, which requires the Governor-in-Council to act on the advice of the enrolment committee. There is nothing that requires the Governor-in-Council to look behind the decision of the enrolment committee to see if that decision was reasonable.
Secondly, clause 3 is in contradiction with the provisions of the Indian Act, which allows an individual to protest the removal of his or her name from a band list and from the Indian registry.
If that is not the intent of clause 3, some clarification of that section should be required because it does result in differential treatment of Qalipu Band members from other First Nations people in Canada.
Senator Dyck: If I could just interrupt, does that mean add another clause or modify that clause to say — I'm not sure whether it's section 40 of the Indian Act that allows you to file a protest or an appeal.
Ms. Lickers: It would be hard to reconcile the principle that is in clause 3 of the bill, even drafting a clause into the bill which would say that nothing in this bill affects the right of an individual to access the protest provision under the Indian Act. The problem with drafting that clause in is that the courts have clearly held that where the registrar removes a name from a band list, because an order-in-council requires the registrar to remove the name from the band list, the registrar has no authority to go behind the order-in-council. Even if you draft a provision into the bill, the courts would likely still uphold the registrar's decision because the registrar is bound by the order-in-council as long as it's a valid existing order-in-council.
Aside from striking clause 3 of the bill, I fail to see how it can be remedied in a way that individuals would still have the same protest rights under the Indian Act as other status Indians in Canada.
Just to finish in response to your question, senator, clause 4 of the bill we think is such an affront to a basic legal right in this country that we have no submission other than that provision should be entirely struck from the bill.
If there is no liability in the way that the enrolment process has been handled, clause 4 is unnecessary. If there is liability as a result of the way the enrolment process was handled, then that's for the courts to decide.
Senator Meredith: Thank you so much for your presentations. I've listened attentively to your passionate presentations and your valid concerns.
When we look at certain pieces of legislation and we see potential dangers, I think it is incumbent upon us to put in the proper measures to ensure that further hardship is not caused to any individual in this country.
That said, Ms. Lickers, you spoke about potential recommendations that could be made to this bill. Ms. Tessier, you said in your presentation that an agreement with a process that was originally intended to heal injustices of the past is more divisive than ever before.
It's incumbent upon us as senators, when we look in our heart of hearts, to ensure that we're doing the right thing and that we're making the right pieces of legislation that heal our nation — having been the last province to come on board with respect to the people. In your presentation, you stated there are individual groups that are still being left out. Ms. Lickers, you spoke about the potential of clauses 3 and 4 and the fact that this piece of legislation is not necessary.
To reiterate, how do we go forward? How do we go forward with the right pieces? You have done some research, Ms. Darrigan, on ancestral — the rights of individuals — and you talk about the integrity. My colleague across the hall is also — I'm not a lawyer; he is a better litigator than I am. However, about the inadequacies in this legislation — we need to do the right thing, and I think all of us need to do the right thing.
You're here to present your case on behalf of the Mi'kmaq group to say, "Listen, there are some things that have not gone right here in this process. How do we mitigate that?" I'm asking you, what we do here with respect to the corrections that need to be made, given the fact that the horse has basically left the barn already in this process?
It's incumbent upon us, senators and Mr. Chair, whom I respect highly, that in light of what we've heard, how do we step back and correct those things that we find will cause further potential harm? I'm just being frank and blunt. I might be criticized later on, but we need to say the right thing and do the right thing as we move forward.
In terms of your expertise and research — so this doesn't happen again to any other groups that may want to come forward in terms of identification, being hidden behind the fact that they are going to be discriminated against, the fear of reprisal and so on. We see that has transpired. This process here — this bill — seeks to address a certain wrong; however, it seems to be creating other things than were intended. We need to be factual, honest, transparent and accountable moving forward with whatever piece of legislation we put forward. In the eyes of all Canadians, right is right. Martin Luther King said, "Injustice anywhere is a threat to justice everywhere." We ought to ensure we are doing the right thing.
In your opinion, from a legal standpoint, again reiterate for me some of those factual things we need to consider as we move forward.
Then I also want to talk about the research in terms of how we ensure that individuals — tools that could potentially be put in place to ensure people are fully identified and that they are recognized — their culture their heritage, which is so important to them. We talk about the fact that you have no land. There is not any inherent right or benefits that you will take or seize right away from these founding members.
Speak to me a little bit about that, and enlighten us on how we move forward.
Ms. Lickers: The short answer to your question senator is that passing this bill is not the answer.
In terms of next steps and moving forward in the event that this bill doesn't become law, I will ask my colleagues. Being from Newfoundland and being Mi'kmaq people, they can speak more to what would ensure the integrity of this band. Again, I'll make the point that I've made before, which is that an artificial cut-off date that applies different criteria to applicants based on the day they applied is not the answer.
Is the answer a full modification of the eligibility criteria? Is it applying the additional documentation requirements under the supplemental agreement to all applicants regardless of the date they applied? I can't answer that question.
It's not through an artificial cut-off and the application of two different sets of criteria.
Ms. Tessier: Looking at it from a Newfoundlander and Mi'kmaq person, I have a lot of problems with the ancestral integrity of the band. I think full review has to be done, and I'm hoping that somebody somewhere will listen to this. We know there are errors. We know. We know there are people probably who are members of the Qalipu Band right now who may not even qualify as Mi'kmaq.
Yet if we sit back and don't do anything, this will repeat itself. It could start with the Mi'kmaq Band, but who is to say another band in Canada will not be affected by what happens here tonight? Who is to say?
The integrity is so important for all of us. We need to know and be able to know that our brothers and sisters are who they are supposed to be. That's what I'm looking for.
Ms. Darrigan: Senator Meredith, I very much resonate with what you had to say about truthfulness, about the country and how we want to build things going forward.
In answer to your question as to what we do going forward, I think this evening is a step in the right direction. Having the honoured members of the Senate committee listen to us — and we've listened to all of the meetings that have gone on, and it became apparent to me that everyone wasn't on the same page; they didn't really understand what we were getting so excited about. I hope that we've helped in that regard this evening.
Where do we go from here? How do we go forward? A lot of that depends on the willingness of the government and the FNI/Qalipu leadership to hear us tonight. Do they have the same goals that we do? We have heard a lot about integrity. We're all for integrity, but integrity starts at home. That's a general thing that comes to mind.
There may be a brainstorming idea — a meeting of the minds — as to how we will resolve this. Ancestry review has to be a part of this and not just for the people who made an application after the recognition date — everyone. We have to get straight on that. It just can't go forward; it's wrong.
The other thing is treating everyone the same from day one. We can't have a two-tiered system. Come on; this is Canada.
Those would be starting points for me, but I'm not a black-and-white person, and I'm willing to have discussions regarding that. Pauline and I are volunteers. We have put in together well in excess of 3,000 hours of our own time over the last couple of years on this. We don't take fees from anyone; we have nothing to gain, but we care about the integrity of the process and the outcome.
The Chair: Looking at the time that we had originally planned for this committee hearing and everyone's patience in allowing us to adjourn for that vote, I'm going to aim to finish the proceedings in about 10 minutes. That will make up for the time we lost.
Senator Watt: I wish I had more time. This is not a matter to drop by the side; it is very important. We are dealing with the lives of the people. I'm talking about the government, not you people.
I am not entirely sure, knowing the procedures I know I have gone through in my own experience in dealing with enrolment eligibility lists, things of that nature — there is a protocol that you have to follow.
First, you have to be consulted, and you have not been consulted. Second, whoever those leaders were, however they were put in place to represent you on your behalf, they don't have the power to make decisions on your behalf. There's a ratification procedure that you have to go through. I don't think that has been utilized. That is very important.
I would also like to say that, in my opinion, regardless of what we do, we have small numbers in the Senate side that would be willing to go on your side. There are higher numbers on the government side that will allow this bill to go through, whether we like it or not.
Let me switch to the area that you are concerned with, that you might be prevented by certain provisions in the act itself that don't allow you to re-examine or make the point. There's no tribunal as such that will exist and be accessible to you. Knowing that fact, is this bill bullet-proof? I don't think so. You have the rights under section 35 of the Constitution, the British North American Act, just like any Aboriginal person. You are an Aboriginal person; you are covered by that.
Consultation is very important. Nothing takes place until you've been properly consulted. Again, as I mentioned, you have to go through the ratification procedure. The people who negotiate on your behalf don't have the manpower to make decisions on your behalf. Nobody ever does, especially when you are dealing with something such as this, as complex as it is. Even through the comprehensive land claims procedure, we have to have ratification in place.
So what is happening to our government today, ignoring those provisions that have to be utilized? That's beyond me.
The Chair: You're going to ask a question, I'm sure, Senator Watt.
Senator Watt: You've given me not even five minutes of my time. This is a very critical issue.
Back to the ratification, have you ever witnessed that ratification took place? Have you ever witnessed your people being consulted? Those are my two questions. I'm sorry I spent so much time elaborating on it. I can get to be long-winded.
Ms. Lickers: Senator, if I may, in response to your question, the original agreement sets out a process for amending the agreement. There are two ways the agreement can be amended. We'll say there are administrative defects that can be corrected that don't require ratification and then substantive changes to the agreement are supposed to be ratified.
Senator Watt: Have they been ratified?
Ms. Lickers: No, it hasn't, because when the supplemental agreement came out it was characterized as the correction of a defect in the original agreement. That characterization is questionable at best, but it allowed the parties to access the provisions of the original agreement, which allowed them to amend the agreement without ratification by calling it a defect.
The Chair: We will be considering this bill further in this committee.
Senator Raine: My question was really one of curiosity, to help me understand. We are really focusing on the bill itself, so to get into all the background of the bill is a big learning process.
I just wondered: You talked about newer genealogy research referring to a document called The Micmac Shore. I'm wondering if you can elaborate on that because I don't understand it.
Ms. Tessier: I guess I can speak to that. I don't recall the year, but the FNI commissioned, I don't know if it was a genealogist or not, but a report was commissioned by the FNI to determine who were of Mi'kmaq ancestry in Newfoundland. The document became available and all of a sudden disappeared. Nobody could find it. When we called the offices to ask if we could look at it, nobody had it. We had to go as far as Glenwood to get a copy of the document.
When we got a look at the document, there were serious flaws that involved my family and Helen's family. We noticed these right off the bat. We didn't go through The Micmac Shore document and go through every family line. We know some of the family lines, but we also know our own. When we saw what was happening with our own, then we had a big problem. I would say The Micmac Shore disappeared, so to speak, because they also knew there were errors and there were too many people coming forward who knew about these errors.
Senator Meredith: It just disappeared into the Atlantic?
Ms. Tessier: Yes, but some of us still have it.
Senator Raine: Just a supplementary question, was that document used in ascertaining who was Mi'kmaq in that first round?
Ms. Tessier: Yes, it was.
Ms. Darrigan: I believe it was 2002, if my memory serves me correctly. That document was put together in 2002, and it formed the basis of a lot of families leading up to the 2008 agreement, and it was certainly for stage one applicants. I don't know if all of them, but certainly a good portion of the stage one applicants, their ancestral lines were determined from that document. It disappeared; no one wanted to talk about it; but one of our genealogy friends did have it in his archives — he's quite knowledgeable — and he posted it on the social media group so everyone could see it. It's a large document, too, a very large document.
Senator Tannas: Thank you for your presentations this evening. I have a question; it's more of a clarification, Ms. Lickers.
You mentioned a number of times in your presentation that there was a cut-off date of the supplemental agreement by which people didn't have to provide documentation and then a date where they did. Is it explicit in the supplemental agreement that that occur, or was that a practice of the assessment panel? Where is that? Could you help me with that?
Ms. Lickers: Just give me one second and I'll find the actual wording.
The preamble to the supplemental agreement, I'll read you a paragraph:
AND WHEREAS applying section 24 of the Enrolment Committee Guidelines . . . to applications signed after 22 September 2011 would result in the acceptance of evidence that would not be sufficient to meet the criterion that the applicant self-identified as a Member of the Mi'kmaq Group of Indians of Newfoundland prior to and on the date of the Recognition Order, as required by paragraph 4.1(d)(i) of the agreement.
So that preamble explains that the agreement required self-identification on the date of the recognition order. Self-identification was satisfied by signing your application form. What the parties put into the supplemental agreement was the question of how can a signed application form after the date of the recognition order constitute proof of self-identification before the date of the recognition order? So signing your application form after a particular date doesn't necessarily mean that you self-identified as a member of a Mi'kmaq group of Indians at a time previously. So if you signed your application after that date, then extensive documentation was required to prove your self-identification.
Of course, this wasn't made known to applicants when they were preparing their applications, so I would submit to you that if individuals had known that the criteria would change based on the date they signed their application form, a lot more applications would have been received before September 22, 2011.
Senator Tannas: Do you see between the supplemental agreement and this bill, with the provision to go back, as far as I can see, to founding member number one if they want to and apply equal criteria to every single person from founding member number one, why is that unfair?
Ms. Lickers: It's not, but that's not what's happening here.
Senator Tannas: And you know that because of what's happened in the past?
Ms. Lickers: No, we know that because of the way the agreement is drafted and the way the agreement is being applied to applicants. Individuals who submitted their applications after that date are receiving letters requesting additional documentation to prove their self-identification in years past. Individuals who signed their application forms before that date are not being requested to produce that documentation.
Senator Tannas: Okay, but we are empowering a new committee to start again. Is there anything that you see that would prevent in the future that new committee from requesting the people that have not been asked for their information?
Ms. Lickers: Not commenting on whether I think the criteria as it's drafted is fair or not.
Senator Tannas: Right.
Ms. Lickers: No, that would be ideal to apply the same criteria to all of the applicants. Regardless of what that criteria might be, applying the same documentation requirements, the same criteria, would be ideal.
Senator Tannas: So this particular bill would not prevent a new panel, a new group that will be formed around this, from actually undertaking exactly that. We may not agree or be happy or unhappy with what criteria they come with, but we can, through this bill, actually apply — or those charged with applying this bill can actually do something that would provide fairness to all, equality to all?
Ms. Lickers: I don't think this bill allows that. I don't think there's anything in this bill that provides for what you just described. That would be an entirely different process.
Ms. Darrigan: I would like to comment here as well on this. That's an admirable thought. Since it will be March of 2016 before any action will be taken under the current structure, why are we in a hurry to pass Bill C-25? I'd like to see the government and the FNI play that card first and then we'll see where we go with it. But why pass the bill? Because once the bill is passed, it's law.
Senator Tannas: I think we don't have a mandate for it, right?
Ms. Darrigan: That's correct, but the question you asked is could the bill go forward if that happened. Well, maybe under certain circumstances.
Senator Tannas: Yes.
Senator Wallace: Ms. Darrigan, you and Ms. Tessier have pointed out, and we've heard this with other matters that have come before this committee, the need for consultation and to get input from First Nations people on these matters. I'm wondering if your understanding — this certainly is my understanding — is that the government in becoming a party to the supplemental agreement in 2013 and the preparation of Bill C-25, that that was ratified by the Qalipu Mi'kmaq Band Council. They've been involved in that process. Is that your understanding, taking the 2013 agreement, that the Qalipu Mi'kmaq Band Council ratified that agreement? Wouldn't that be the most obvious representative of the Qalipu Mi'kmaq people?
Ms. Darrigan: One would think. But just to be clear here, the band council is a very small group of people. As my colleague Pauline mentioned in her presentation, how many people on that band council voted for that? Were any of the current members, the 23,000-odd members, consulted on that? The answer is no, they weren't.
Ms. Lickers: The band council doesn't represent the applicants. They only represent those individuals who have been granted membership. They do not speak for the 78,000 individuals who are not yet members, and the applicants weren't consulted.
Senator Wallace: I would think the band council's intent would be to represent the best interests and the integrity and credibility of the Qalipu Mi'kmaq people.
Ms. Darrigan: One would think.
Ms. Tessier: You would think that, but then when you look at what has gone on, I'm a stickler for detail when it comes to ancestry, and when I see what has happened just with this one document, I have a problem, and I think most people would have a problem with the band council.
I also have to wonder, with 23,000 people, how about if some of these people lose their status? We've already had an election. Where does the council really stand? Are they really elected members by the people? Was that election really valid? If any of those people lose their status, that's very questionable.
Ms. Darrigan: The last election is a whole other topic. We could spend a week here, honourable members.
Senator Wallace: The final word on that from me would be there is the Qalipu Mi'kmaq Band Council as well as the Federation of Newfoundland Indians, and both organizations represent Qalipu Native people whom the government has dealt with, negotiated with and entered into agreements with, and I believe that's a fact.
Ms. Lickers: The membership of the Federation of Newfoundland Indians today is the band and the council. It's not the members who were the members at the time the original agreement was being negotiated.
Senator Wallace: I suspect membership does change. Fine. Thank you very much.
The Chair: In closing and just to assist the committee — and I don't know if it has been asked — while we're talking about who represents whom, Ms. Lickers, you're here on behalf of the Mi'kmaq First Nation Assembly of Newfoundland, correct?
Ms. Lickers: That's right.
The Chair: Could you briefly tell us who this organization represents?
Ms. Lickers: I call them the MFNAN. The Mi'kmaq First Nation Assembly of Newfoundland is a not-for-profit organization that represents applicants and band members who are in support of a fair and equitable evaluation process for membership to the band. Their membership is determined based on a voluntary enrolment process and the payment of a small membership fee to support their fight against the supplemental agreement and now Bill C-25.
The Chair: Do you understand that the Federation of Newfoundland Indians is also a corporation under the Newfoundland and Labrador Corporations Act?
Ms. Lickers: That is my understanding, yes.
The Chair: Colleagues, thank you very much for your time tonight and your indulgence of the delay we had and your questions. I think we've canvassed the issues around this bill quite widely tonight.
With that, I will adjourn this meeting. Thank you very much to the witnesses as well.
(The committee adjourned.)