Gerry Byrne

[Qalipu Mi’kmaq First Nation Band, March 28th, 2013]

Mr. Speaker, the community was involved in these negotiations and in these rules since 2002—in fact, since 1970. It is a fact that the negotiations occurred in good faith from 2002 to 2006.

I will also state for the record and table for the hon. member that the chief of the Qalipu Mi'kmaq First Nation has publicly asked for the Government of Canada to extend the enrolment process under the terms of the agreement and that it continue within the role.

I will answer the question of the hon. member. He would be aware, if he bothered to read the Journals, that there was an issue brought forward to the conflict of interest commissioner, and the conflict of interest commissioner ruled that any member of this House who is an applicant to this band who advocates for any continuation on the rules of the band based on the agreement is not acting in any conflict.

The Ethics Commissioner has decided that issue. It has been tabled and recorded within the Journals.

In fact, I actually presented a note to the Minister of Aboriginal Affairs and Northern Development personally informing him of that decision of the Ethics Commissioner and telling him that in order to avoid the politicization of this issue, I wanted him to be aware of this so that he understood that the matter has been ruled on and that there is no conflict.

For the hon. member to raise this issue right now is pure politicization.

[Qalipu Mi’kmaq First Nation Band, March 28th, 2013]

moved:

That, in the opinion of this House, in relation to the enrollment and registration process for the Qalipu Mi’kmaq First Nation Band, the government should commit: (a) to completing the enrollment and registration process for all applicants who applied on or before November 30, 2012 by agreeing to extend the 2007 Agreement for the Recognition of the Qalipu Mi'kmaq First Nation Band beyond March 21, 2013 until all such applications are processed; (b) to ensuring that the rules of eligibility for membership are followed by all government decision makers in any continuation of the enrollment process; (c) that all previous interpretations, precedents and rulings on matters affecting enrollment that were not specifically addressed within the 2007 Agreement but were established instead through the records of decisions made by the Enrollment Committee and the Appeals Master be made known to all participants in any future enrollment process and that the decision makers in any future enrollment process be instructed to guide their decisions in a manner consistent with such previous interpretations, precedents and rulings; (d) to the same standard of evidence as well as the same thresholds for the quantity and quality of information that was previously deemed acceptable by the Enrollment Committee, for the remaining 75,000 unprocessed applications to the Band; (e) that an independent Appeals Master will continue to be employed in any future enrollment process for the assessment of the remaining 75,000 applicants and that this person will be drawn from outside of government, from outside of the Federation of Newfoundland Indians and from outside of the Qalipu Mi’kmaq First Nation Band and that this Appeal Master will be vested with the same powers and authority and be drawn from the same legal and administrative background as the previous Appeals Master to ensure consistency with the rules and standards established under the previous enrollment process; (f) to maintaining all existing memberships, except in cases where fraud can be established that is material to the application; and (g) to ensuring that no eligible applicant who submitted an application in good faith prior to the November 30, 2012 deadline is disenfranchised from enrollment.

Mr. Speaker, thank you for giving leave to present my motion, Motion No. 432.

In 2007 the Prime Minister of Canada came to a small community on Newfoundland's west coast to personally announce that negotiations between the Federation of Newfoundland Indians and the Government of Canada had concluded in a workable arrangement that, once formally ratified by both parties, would see the formation and the recognition of a new first nation band and the recognition of all Newfoundland Mi'kmaq as Indians under Canadian law. On September 26, 2007, the Prime Minister said:

For more than half a century, the Mi'kmaq people of Newfoundland were among the 'Forgotten People,' as the Congress of Aboriginal Peoples calls its members...They never stopped fighting for recognition and now, at last, that title can be cast aside.

It was on that day that the Prime Minister of Canada personally authorized the agreement in principle to establish a modern day recognition of a very ancient people and he endorsed its every word as his own.

Unfortunately, time appears to have worn down, if not exhausted, the Prime Minister's enthusiasm toward his earlier promise and today, despite an assumption that all Mi'kmaq would be treated fairly and equally under the terms of an agreement that had the personal backing of a Prime Minister, tens of thousands of Mi'kmaq people have been left feeling abandoned and frustrated. They are concerned.

My motion today is not only about what was originally promised in the Prime Minister's agreement; it is about the work yet undone. It is about the task of completing the enrolment process of the Qalipu Mi’kmaq First Nation Band and for all of its deserving members, as promised. My motion is also about ensuring that those who have already been established as members of the Qalipu band do not lose that recognition from any arbitrary or unjust decision by their respective leaders.

My motion is based on, in part, the very words of the Chief of the Qalipu First Nation who has formally asked the Government of Canada to allow the enrolment process to continue beyond the agreement's scheduled expiry date of March 21, and that it continue under the same rules and practices established within the original agreement and through the same practices established within the first four years of its implementation.

The government contends that the issue for it is the unforeseen numbers of members and applicants who have presented themselves for recognition. The government contends that this issue was only recently identified and could only now be dealt with at a time coinciding with the expiry of the agreement.

For the record, in 2009, almost four years ago, the number of members to the band stood at 10,000 and the number of applicants awaiting processing stood at 20,000. If the expectation was ever that only 10,000 to 12,000 members would be targeted as being eligible for the band, that notion and that forecast was proven totally inaccurate almost four years ago.

Looking back at 2009, with several years still remaining in the intake and registration process, any belief that the numbers would not grow the way they have is totally disingenuous on the part of anyone who would suggest it. This is the focus of my argument.

Today, the band stands with an estimated membership of 24,000 Mi'kmaq. As of March 21, the number of Mi'kmaq whose applications for enrolment have been left unprocessed stands at roughly 75,000, and 75,000 non-status Mi'kmaq, who applied in good faith and within the time frame established within the agreement for recognition under the Indian Act, were left in limbo.

Concern erupted only after the government made a statement to the media on November 4, 2012, that it was, just now, identifying problems with either the membership criteria or the enrolment process and that one or both may be subject to being altered after the fact.

There were 24,000 existing members left not knowing whether they would retain their status should any change occur within the rules and prospective members would also have to consider their loss. So far, 75,000 applications have been left unprocessed. The situation is very serious and answers have not been provided by the government.

Instead of any discussions or consultations with the applicants, the government has woven a story to the public that the number of members and applicants to the band is far more than what should have been expected or considered to be reasonable. The suggestion is that the problem is not really of the government's doing, it is the doing of the applicants who are applying for membership without the proper entitlement to do so.

Nothing could be further from the truth, and I will deconstruct the government's argument.

Allow me to establish the baseline for a discussion on this issue by informing the House of the agreement and its implementation with a particular view to the enrolment criteria.

To try to find an out of court resolution to a motion filed in 1989 in the Federal Court of Canada by a representative group of Newfoundland Mi'kmaq seeking to have their rights under section 91 of the Constitution Act recognized under law, the federal cabinet took a decision in 2002 to enter into a discussion with the Federation of Newfoundland Indians to determine if there was a basis for a negotiated recognition of the Mi'kmaq of Newfoundland. For decades before that, the federal government had engaged in what can only be described as a totally incoherent, inconsistent and politically directed handling of the settlement issue, which in retrospect serves to define the true meaning of the phrase “bad faith negotiations”.

For three decades, talks with the Mi'kmaq were initiated, stopped and then restarted according to the changing political moods of provincial premiers and federal cabinet ministers and caused the 1989 motion to be filed. As it proceeded clumsily through the courts, it was obstructed by motions filed by the Department of Justice simply to effect delays to the hearing of the case. After years of this type of behaviour, time had caught up with the federal government and its tactics. Knowing that its past conduct would likely be highly prejudicial against it in trial, the Crown eventually took a more reasoned approach to settlement. The Mi'kmaq put their court case in abeyance and after four years of hard work, a draft agreement in principle was reached between the FNI and the government's negotiators in 2006.

Under its terms, formal ratification of the agreement was required by both parties before the agreement could take effect. For the FNI, this meant a vote by the full membership of the entire organization. Needless to say, the agreement was dissected clause by clause, word by word, by both the federal cabinet and by the Federation of Newfoundland Indians and its membership during a sometimes intense but civil nine-month-long ratification debate that was held in church basements, community halls and kitchen tables all over, just as it was at the cabinet table.

On May 30, 2008, the Federation of Newfoundland Indians voted 90% in favour of ratifying the agreement. Nothing in the agreement was misunderstood or could be considered to be unclear to any party to the process, and in June of the same year the Government of Canada signed the order in council to ratify the agreement, moving it into implementation phase.

That agreement spelled out in very plain language what the enrolment criteria for the founding members in the future band would be. The agreement stated the following: to become a member, applicants must demonstrate that one of their ancestors must be of Canadian aboriginal descent.

It was an intentional decision by both parties to the agreement to stipulate in plain language that individuals would not have to show that they were necessarily of Mi'kmaq descent, just that they were of Canadian Indian ancestry by birth or adoption. This ancestry could then be established by means of their descendant being referred to in historical records as, and I quote directly from the agreement:

Indian

French Indian

English Indian

Micmac or variations thereof

Montaignais or variations thereof

Abenaki or variations thereof

Naskapi

savage or variations thereof

aboriginal or of aboriginal descent.

No blood quantum or measurement of the degree of generational separation from a person and their Indian descendant was required or relevant under the agreement.

These open criteria alone would obviously have alerted the Department of Indian Affairs to understand that a relatively high number of prospective applicants might likely be eligible; yet this is what the Department of Indian Affairs negotiated over a four-year period and obviously intended.

The next criteria for enrolment required that the applicants or their descendants be either resident of or connected to a pre-Confederation Newfoundland Mi'kmaq community as listed within the agreement in 1949.

For non-residents, the applicants would show an ongoing connection to that community. This was achieved, as according to the document, by their self-identifying as members of the Mi'kmaq group of Indians, by demonstrating an ongoing connection to a Newfoundland Mi'kmaq community by way of regular telephone calls or travel to the community and by establishing that the applicants continued to live the Mi'kmaq way of life.

This is spelled out in plain language within the agreement and within the application guides that were produced for applicants by the federal government and by the Federation of Newfoundland Indians authorities. For instance, according to the agreement at paragraph 25(B)(ii) of annex A, the latter requirement could be established by way of the following: by demonstrating “knowledge of Mi’kmaq customs and beliefs...or pursuit of traditional activities” within Federation of Newfoundland Indians members, by hunting and fishing. That is what the Federation of Newfoundland Indians and the enrolment committee found would satisfy that particular test.

I will also highlight a couple of points as to what the government knew it signed as part of its agreement with the Mi’kmaq. Paragraph 13 of annex A specifically states:

The applicant must provide evidence that he is of Canadian Indian Ancestry. There is no minimum blood quantum.

To reinforce that both the government and the FNI were fully aware of the criteria that had been agreed to, documents produced to assist applicants in preparing their applications, as well as information found on the Government of Canada's own website, specifically state that residency is not a requirement of enrolment as long as a connection to a Mi’kmaq community can be established and maintained. A connection is described in those documents as visits and communication. Membership in the Federation of Newfoundland Indians was also specifically described in literature and in web portals as being of value but optional. That point is further proved by the history of decisions on membership. Literally thousands of out-of-province applicants who are not members of the FNI have been already approved for membership in Qalipu, with federal representatives and FNI member representatives on the enrolment committee making those decisions for the last four years.

Furthermore, during the course of the agreement's implementation, the government members had several mechanisms available to them to address any problems that they foresaw with the integrity of the membership through the enrolment committee, which they did not exercise. This circumstance is highly material to the discussion from an administrative fairness perspective. Federal government members sat on the enrolment committee and assessed every application for the last four years. They knew every detail of every application and the number of approvals and applications received. They could have asserted a concern and their position on matters at that table. They did not.

The federal government members could have also appealed any decision of the enrolment committee that they did not like to a former justice of the Supreme Court of Newfoundland and Labrador who served as the appeals master for the process. As early as 2009, with three years left in the application intake process, and with the number of recognized members already standing at 10,000 and the number of applications awaiting review standing at 20,000 and growing on a day-to-day basis, not once did the government exercise this option. Only when the membership grew to 24,000, and only when 75,000 applications were awaiting processing, did it act.

If the original target was for a total membership of 8,000 to 12,000 members at the onset of the agreement, the government's inaction defies credibility. It should also be noted that the federal government had a unique authority within the process. It could veto any application on the basis of unfounded Indian ancestry. Further, the federal government had other means to identify and address issues. For instance, the federal government members could audit the enrolment process and that of the enrolment committee's decisions. They did so in 2010 and 2011, with no significant concerns being registered by the federal auditors. They audited to ensure the integrity of the process and the integrity of the enrolment. The audits found no problems.

My time is expiring, but I would like to conclude my first presentation to the House on this matter by saying the government cannot reasonably make any case that the situation surrounding the registration of the Mi'kmaq of Newfoundland is not anything but of their own hand. They established the rules, they enforced the rules for four years, and now they are suggesting that they do not like the rules that they established and they want to take them back.

The law does not work that way.

[Canada Revenue Agency, March 26th, 2013]

Mr. Speaker, it is tax time and soon we will be bombarded by expensive ads about a taxpayer-funded tax cheat line.

With Mr. Penashue in mind, I am just wondering, if people call the snitch line to report tax cheats hiding almost half of their total income from authorities and claiming $50,000 in illegal receipts, can the Prime Minister decide that the tax cheats are immune from any consequences because he thinks they are hard workers who made the simple mistake of having an amateur chartered accountant help file their tax form? No? Well why do cheaters like—

[Fisheries and Oceans, March 25th, 2013]

Mr. Speaker, the Conservatives have absolutely no problem spending hundreds of millions of dollars of taxpayer money on partisan propaganda while they cut funding to fisheries. With Peter Penashue looking on as part of that “team” the minister refers to, Newfoundland and Labrador's cabinet observers saw fisheries science being cut to the bone, the EI left without marketing support, crumbling infrastructure, slashes to EI and fisheries EI, and inadequate habitat and conservation protection.

With Peter Penashue looking on with his team aboard, the government said to the fishermen, “You've got what you had coming to you”. Now what do they—

[Ethics, March 21st, 2013]

Mr. Speaker, Penashue's current campaign manager across the way insists that having a fraudulent election campaign is not a serious offence under the Canada Elections Act. Guess what? It is.

Let me tell the Conservatives right here and now that Labrador is not for sale at any price. It is only Conservative ethics that are at a bargain basement price right now.

With the cost of a fraudulent election campaign now at $50,000 and climbing, will the Prime Minister stand in this place and say to the people of Labrador that the Conservative Party of Canada is apologizing for elections fraud and for denying the people—

[Ethics, March 20th, 2013]

Mr. Speaker, what is a slur to democracy is when someone writes 28 cheques to try to undo what happened during an election campaign to steal an election away from the people of Labrador.

What people in Labrador do not want is someone from Ottawa, those in the big land, telling those who have a real sense of dignity and independence that they will be told who their MP is. That is what the Conservative Party is doing right now. Quite frankly, if the Conservatives want to get on with this, we will see them on election day.

[Ethics, March 20th, 2013]

Mr. Speaker, in anybody's mind, writing cheques for nearly $50,000 is a clear admission that Conservatives broke just about every law in the book during the Labrador campaign and that they knew they broke them.

With that said, the Prime Minister also knows that sanctions with serious consequences remain inevitable against Mr. Penashue and his party. With absolutely nothing left to lose under those circumstances, a by-election is about to be called to try to dull some of that reality.

Does the Prime Minister really feel that holding a by-election could ever trump the rule of law in Canada and that the process of justice might actually be able to be turned off for a by-election?

[Questions on the Order Paper, March 8th, 2013]

With regard to the Qalipu Mi'kmaq First Nation Band and the enrollment process of individual applicants into the Band that were received by the Enrollment Committee of the Qalipu Mi'kmaq First Nation Band prior to the November 30, 2012, deadline for such submissions: (a) what provisions have been made for the consideration of any such applications after the Enrollment Committee's mandate expires as per the Qalipu Mi'kmaq First Nation Band Agreement; and (b) does Aboriginal Affairs and Northern Development Canada intend that all such applications will be assessed by federal representatives on the Enrollment Committee in the same manner and using the same precedents for decision-making as those applications for enrollment that were received by the Enrollment Committee prior to December 31, 2009?

[Questions on the Order Paper, March 8th, 2013]

With regard to the Qalipu Mi'kmaq First Nation Band and the contracted engagement of Mr. Fred Caron by Aboriginal Affairs and Northern Development Canada: (a) what does this contract say; (b) what are the terms of reference associated with this contract; (c) what are the objectives and the intended consequences arising from work conducted through this contract; (d) what is contained within the approved workplan for the conduct of this contract; (e) on what date did Fred Caron sign this contract; (f) on what date did the contracting authority of the government sign this contract; (g) how long is the engagement anticipated to last; (h) what is the contractor's rate of pay; (i) how much money has been budgeted for his remuneration; (j) how much money has been budgeted for expenses including support services and has any specific mandate been given to this contractor to consult on potential chances to the 2007 Qalipu Mi'kmaq First Nation Band Agreement-in-Principle which was ratified and brought into effect on September 26, 2011?

[Air Passengers’ Bill of Rights, February 7th, 2013]

Mr. Speaker, we have a clearer picture this time around as to where the government is going to stand on this particular issue.

It is obvious it will not be supporting Bill C-459. That is a little different from the position it took in the past. Members of the House who have been around for a little while will recall that this is not the first time this issue has come forward. I am not speaking about the efforts of Mr. Jim Maloway, consumer protection advocate, who did a great job introducing a bill in a previous Parliament. He is not here today, but his bill is being echoed in the current mover's presentation.

There was an earlier attempt to provide consumer protection for airline passengers, and that occurred in 2008. In May 2008, I submitted a motion for consideration by this House, that the House call upon the government to enact an airline passenger bill of rights similar in context and form to that presented to the European Union Parliament and passed, and also similar to legislation before the U.S. Congress at that time.

That motion would have put statutory effect to airline passenger rights. Now, the interesting thing is that the government was all for it, on its face. While the government suggested it was in support of enhancing and protecting airline passenger rights, it was doing something very different on the inside. What the government was doing was contacting its buddies, and this was only revealed through access to information.

The government members voted 100% in favour of the motion to enact legislative, statutory protections to airline passengers. The Minister of Transport voted in favour of doing that. The entire front bench, in fact every Conservative member of the caucus, voted for my motion.

What we found out, though, was that was not what the Conservatives were doing on the inside. Through some very skilful investigative journalism by some members of our press gallery, it was discovered that while they were suggesting they were in favour of this and actually voted for it in the House, a member of the transport minister's office, Paul Fitzgerald of Lawrence Cannon's office, was actually writing to lobbyists from the airline industry.

He was saying that they were going to have to do some lobbying to stop this motion in its tracks, and that if they did not lobby the Grits, the Conservatives were going to find themselves in the position where they were outvoted by the opposition parties. Fitzgerald added that he did not want the government to be forced into regulating passenger protection issues.

Now what the Conservatives did, after actually saying that they did not want to be forced into regulating passenger protection issues, was that they voted for it. Imagine the contempt, the pure raw contempt of what this place is all about. This is a legislative body.

What we say in here is what we say to the country, and when we say in here that we support airline passenger rights and we are actually going to put our stamp on that by standing in our place and voting for it, we do not actually go out and commission lobbyists saying, “Let us scuttle this. Let us get this done. Let us create a pack of lies. Let us try to create much innuendo about this. Let us try to smear this effort. Let us try to make sure that the Canadian public turns against those who would actually favour such a thing and promote such a thing in Parliament”.

Then after they fail at that, what do the Conservatives do? They vote for it. If that is not contempt for what we are supposed to be doing in this place, what is? It is called a lie. If members stand in this place and vote for something, should they not actually have the guts to stand with it all the way?

Now, all of sudden, we hear from the parliamentary secretary and few others. I can see I have a few tempers flaring here, because the Conservatives do not like being caught. A few of their senators do not like getting caught either, but that is another story.

If members are going to stand in this place and vote to enact legislative mechanisms to protect passenger rights, why would they not do it? The government actually tried to suggest that it was going to do that.

Right before the 2008 election campaign, the government created Flight Rights Canada. The Conservatives took a flight all right. They flew as fast as they could from what they did earlier in the spring of 2008, and they created this voluntary mechanism called Flight Rights Canada. Flight Rights Canada was a totally voluntary mechanism. The Government of Canada spent a total of $6,000 promoting it. It was supposed to be an omnibus way of protecting airline passengers. A fancy press release was put out 48 hours before the government dropped the writ for the 2008 election campaign, just to clear the issue off the books so that it could say it was doing something. Nobody ever heard of Flight Rights Canada ever again.

Since then, the government has been suggesting that it is on board with protecting airline passengers. It also started the narrative that it was not necessary, that the market would do its job, and that people are not held prisoners.

Perhaps a person pays $1000 for an airline ticket and walks into the secure area of the airport. The airline has that passenger's bags in the hold of the aircraft, and suddenly, the flight is cancelled. Apparently a passenger has market power at that point in time and can simply walk over to another airline desk and say, “I have paid $1000 to that airline. My bags are in the hold of that aircraft, but I would like to use my market power to fly on your airline”. Is that going to happen?

The government denied and denied. It said that these rights were already available to passengers. The Canadian Transportation Agency did not see it that way. As a result of a complaint filed in 2009 against the domestic and international operations of WestJet, Air Canada and Air Transat, the Canadian Transportation Agency ruled, on June 28, 2012, that the consumer protection of airline passengers on those three airlines was inadequate and unreasonable, and it made amendments. The agency forced those three Canadian-based airlines to change their published tariffs. It forced them to improve their protections, their promises and their enactment of their promises to airline passengers. This happened while the government was saying that this was absolutely unnecessary. The Canadian Transportation Agency, a quasi-judicial body, did not quite see it that way.

We have an opportunity now to stand in this place and say as we mean and mean as we say. There are times when the market does not necessarily always protect consumers. I would hope that people on the other side would agree with that. I can think of one case in particular. A passenger walks into the airport, gets a boarding pass at the counter, gives the luggage to the airline, walks past security and finds out that after spending $1,000 on a ticket, the flight is delayed for 24 hours because it cannot get personnel, the plane has mechanical problems, or whatever. It happens. Is that a realistic scenario that suggests to anyone that the market is going to fix the problem? Can a passenger simply walk over to another airline counter, pay $2,000 now, because it is a last-minute ticket, retrieve that luggage from the previous flight, and carry on?

When passengers are dependent on the airline, the airline has a duty of care to the passengers. If the passengers are incapable of adjusting the circumstance to beat that reality, can the market fix the circumstance? No, it cannot, and that is why an airline passenger bill of rights is not a bad idea.