This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.
Bernard Valcourt Conservative
This bill has received Royal Assent and is now law.
This is from the published bill.
This enactment grants to the Governor in Council the power to amend the Qalipu Mi’kmaq First Nation Band Order.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
The House proceeded to the consideration of Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order, as reported without amendment from the committee.
The Acting Speaker Barry Devolin
There being no motions at report stage, the House will now proceed without debate to the putting of the question on the motion to concur in the bill at report stage.
Some hon. members
Agreed.
The Acting Speaker Barry Devolin
I declare the motion carried. When shall the bill be read a third time? By leave, now?
Some hon. members
Agreed.
Qalipu Mi'kmaq First Nation ActGovernment Orders
Chilliwack—Fraser Canyon B.C.
Conservative
Mark Strahl ConservativeParliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development
Mr. Speaker, I am proud to rise before the House to explain the necessity of Bill C-25, the Qalipu Mi'kmaq First Nation act.
The genesis of this issue dates back to a historical oversight at the time Newfoundland joined Confederation that left Mi'kmaq residents on the island of Newfoundland outside of the Indian Act.
From the 1950s through to the 1980s, the Government of Canada provided funding to Newfoundland and Labrador for social and health programs aimed at first nation communities located in the province. However, both the federal government and the Mi'kmaq population on the island realized that formal recognition of Mi'kmaq communities was needed to replace the ad hoc and inadequate existing arrangements, which did not take into account Mi'kmaq governance or cultural heritage.
In 1989 the Federation of Newfoundland Indians, representing approximately 7,800 members from the nine Mi'kmaq communities across the island, along with chiefs of six affiliated groups, began a Federal Court action seeking eligibility for registration under the Indian Act. The litigation was resolved through the 2008 Agreement for the Recognition of the Qalipu Mi'kmaq Band.
The agreement set the stage for the recognition of the Mi'kmaq of Newfoundland as a landless band and its members as Indians under the Indian Act. This entitled eligible members to rights and benefits similar to those available to status Indians living off-reserve. It was always understood that the founding membership in the Qalipu Mi'kmaq First Nation would be granted primarily to people living in or around the 67 Newfoundland Mi'kmaq communities named in the agreement.
To allow adequate time to assess who could satisfy the criteria for membership, the 2008 agreement provided for a two-stage enrolment process meant to identify the founding members of the Qalipu Mi'kmaq First Nation. The first stage of enrolment, which concluded on November 30, 2009, saw 23,877 people registered as founding members through the recognition order, and three subsequent amendments to the schedule to the order were made to add founding members' names.
It was during the second phase that issues emerged that led to concerns, shared by both Canada and the Federation of Newfoundland Indians, about the credibility of the enrolment process.
During the four-year enrolment process, over 101,000 applications were received. Of these, more than 70,000 applications were received in the final 14 months of the process, and more than 46,000 of them were sent in the last three months before the deadline. That was 80,000 more applications than were originally anticipated by both parties. Both parties recognized that the numbers were not credible and could undermine the integrity of the first nation.
A large percentage of the applications submitted during phase two were sent by individuals not residing in the identified Mi'kmaq communities in Newfoundland. Of special concern was the insufficient level of detail in the supporting evidence provided by many applicants.
It became obvious that the original intent of the parties to the 2008 agreement could be compromised and that greater clarity was needed regarding the requirements of the application process. That led to the negotiation and eventual signing of the 2013 supplemental agreement, which provided clear direction to the enrolment committee about possible evidence to support the claims contained in people's applications. It also offered detailed information to applicants about the documentation the committee is looking for to determine their eligibility to become founding members.
The original 2008 agreement is still fully in effect. In fact, the criteria for membership under the 2008 agreement and the 2013 supplemental agreement are exactly the same. The 2013 supplemental agreement extended the timeline to review all 101,000 applications received during the two-stage enrolment process, resulting in the assessment of unseen applications and a reassessment of the applications already considered. This was the only way to be sure that the rules of eligibility for founding membership were fairly applied, that all applications were treated equally, and that applicants were given a reasonable chance to demonstrate their entitlement to founding membership.
In early November 2013, the enrolment committee sent letters to all the people whose applications had not been previously rejected. It indicated whether their application had been determined to be valid or invalid, based on the requirements set out in the 2008 agreement.
Approximately 94,000 applicants received letters confirming the validity of their applications. The letters included information regarding next steps in the assessment of their applications and what additional proof they had the opportunity to provide in support of their applications.
Some 6,000 applicants received letters indicating that their applications were invalid and would go no further.
It is conceivable that some of the current 23,877 founding members of the Qalipu Mi'kmaq first nation will lose their memberships as a result of this comprehensive review. In turn, this means that these individuals would lose their entitlement to be registered as Indians under the Indian Act, and any rights or benefits flowing from it.
This gets to the heart of the matter before us today.
Bill C-25 is an essential part of preserving the integrity of the enrolment process. It would ensure that the Governor in Council is properly authorized to carry out the last step in the process, which is the creation of a new founding members list to modify the existing one.
It is not entirely clear that the Governor in Council has such authority. There is no express authority set out in the Indian Act to amend a recognition order establishing a band, and it is uncertain whether the Indian Act specifically allows the Governor in Council to remove names from the schedule of such an order.
Certainty is critical to correct the problems that arose during the initial enrolment process. Without this act, we cannot finalize the Qalipu Mi'kmaq first nation's founding membership list and fully implement the 2013 supplemental agreement. This would be an enormous disservice to the Qalipu Mi'kmaq first nation, which has been waiting for some time to have these issues resolved.
It is long past time that we settle these matters once and for all so that the Qalipu Mi'kmaq first nation can move forward with confidence to a better future.
Jean Crowder NDP Nanaimo—Cowichan, BC
Mr. Speaker, I thank the parliamentary secretary for that clarification on some of the concerns raised with the bill.
I wonder if, for the members of the House, he could clarify something with regard to the order in council. Clause 3 says that by order in council:
The Governor in Council may, by order, ...add the name of a person to, or remove the name of a person from, the schedule to that Order, along with the person’s date of birth.
Some concerns were raised at committee regarding the feeling that the Governor in Council would be making the decisions about who was on or off the list. I wonder if the parliamentary secretary could clarify that this is, in fact, not the case, and that it is the enrolment committee that would be making recommendations and determining who is off or on the list.
Mark Strahl Conservative Chilliwack—Fraser Canyon, BC
Mr. Speaker, the member is quite correct.
As we heard through testimony from officials and from the minister, it would be the enrolment committee making the determinations, going through all of the applications and applying the same criteria to all of them. It would be the one making the decisions as to who is or who is not on the founding members list, and the Governor in Council would simply affirm those decisions.
Jean Crowder NDP Nanaimo—Cowichan, BC
Mr. Speaker, I will be brief on this. I am speaking to Bill C-25, Qalipu Mi'kmaq First Nation Act. This is very short legislation, with simply four clauses. As the parliamentary secretary rightly pointed out, it would grant a power to add or remove names that it was unclear whether the Governor in Council currently had.
I want to put add a couple of details. In 2008, an agreement was to establish a landless band for the Mi'kmaq group of Indians of Newfoundland. The parties intended that the founding membership in the Qalipu Mi'kmaq First Nation would be granted primarily to persons living in or around the Newfoundland Mi'kmaq communities named in the 2008 agreement.
While individuals living outside these communities could also become members, the intent of the parties was that non-residents would be required to have maintained a strong cultural connection with a Newfoundland Mi'kmaq community, including a sustained and active involvement in the community despite their absences.
As the parliamentary secretary pointed out, there was substantially more applicants than was anticipated and there was, perhaps, a lack of clarity around how the documentation would be applied.
That resulted in a supplemental agreement. On July 4, 2013, Canada and the Federation of Newfoundland Indians announced the supplemental agreement that clarified the process for enrolment in the Qalipu Mi'kmaq First Nation and resolved the issues that emerged in the implementation of the 2008 agreement.
In the supplemental agreement, I want to specifically refer to two things. One was they reiterated, in section 8, the self-identification as a member of the Mi’kmaq Group of Indians of Newfoundland. They said:
In making the Agreement, the Parties were guided by the Supreme Court of Canada’s decision in R. v. Powley where the Court recognized that belonging to an Aboriginal group requires at least three elements: Aboriginal ancestry, self-identification and acceptance by the group. The Supreme Court stressed that self-identification and acceptance could not be of recent vintage. This formed the basis for the criteria set out in paragraph 4.1(d)(i) of the Agreement. The Parties intended that the Enrolment Committee assess whether applicants had previously self-identified as Members of the Mi’kmaq Group of Indians of Newfoundland.
In the same supplemental agreement in section 5 it says:
Determinations. The Enrolment Committee will determine whether each applicant is eligible to be enrolled under the Agreement. Every applicant will be advised of the Enrolment Committee’s determination of his or her eligibility only after the assessments or reassessments of all applications have been completed.
As the parliamentary secretary pointed out, there were a number of questions that arose during testimony. We sought clarification from the department and the minister's office with regard to a number of them. I want to reiterate for the record about how those would be resolved.
One of the questions was whether there was some sort of an appeal process. The other question was how the Governor in Council got the list. The parliamentary secretary already addressed that in the question and answer.
From the guidance we received, it says that a person's whose name is added to, deleted or omitted from the Indian registry and a band list may protest that decision in accordance with section 14.2 of the Indian Act. Furthermore, the first nation or one of its members may also protest the addition to or deletion or omission of a person's name from the Band list under subsection 14.2(2) of the Indian Act.
It is important to note that the decision of the registrar with respect to whether or not to add a name to the Indian Register and the departmentally maintained band list under paragraph 6.1(b) and 11.1(b) is not discretionary and would not involve a review of the Qalipu enrolment application nor of the enrolment committee review process. Rather, if an applicant is found to be eligible for founding membership by the enrolment committee, in accordance with the agreements, and his or her name is added to the schedule as a founding member, the registrar only has the authority to register that person and will not review the enrolment application. That protest of the registrar's decision would be rather straightforward.
The evidence upon which the registrar will base his decision is whether or not the individual's name appears on the schedule. If the name does not appear on the schedule, then the registrar will not have the authority to add it to the Indian register or the band list under paragraph 6.1(b) and 11.1(b) respectively. The registrar's decision on a protest may also be appealed to the courts in accordance with section 14.3 of the Indian Act, but again the courts would likely not review the enrolment committee's decision under this provision and instead would be limited to reviewing this information that was before the registrar in rendering his decision, namely the presence or absence of a name on the schedule.
I think it is clear that both the registrar and the Governor in Council will not be in a position to override decisions that are being made by the enrolment committee. However, the enrolment committee has an appeal master, so there is a process by which members can actually appeal the enrolment committee's decision.
Finally, there were some questions around the abilities of people going to the courts. The clarification we sought was around that issue. What we received was that clause 4 protected the Federation of Newfoundland Indians, the Qalipu Mi'kmaq First Nation and the Government of Canada from liability. However, the clause did not prevent individuals from appealing the enrolment committee determination or to challenging in court through a judicial review application their exclusion from the schedule to Qalipu Mi'kmaq First Nation band order.
Based on that clarification, the New Democrats are confident that the bill reflects the wishes of the Qalipu Mi'kmaq and we are supporting the bill before the House.
Carolyn Bennett Liberal St. Paul's, ON
Mr. Speaker, according the departmental documents, Bill C-25 would enable the Governor-in-Council to implement the agreements reached between Canada and the Federation of Newfoundland Indians to create a landless band for the Qalipu Mi'kmaq people.
The Liberal Party believes this legislation is actually focused on unnecessarily restricting the legal rights of individuals to pursue damages flowing from the band's troubled enrolment process.
When Newfoundland joined Confederation in 1949, the Mi'kmaq communities were not recognized as first nations under the Indian Act.
This left many indigenous people in Newfoundland with uncertain legal status and robbed them of the same benefits and recognition first nations in the rest of Canada were and are entitled to.
Talks to rectify this uncertainty have occurred on and off ever since, and in 1989 the Federation of Newfoundland Indians commenced a legal action to obtain recognition for Mi'kmaq individuals. The most recent phase of discussions to rectify this injustice began in 2002, culminating in an agreement in principle signed in 2007.
The 2007 agreement proposed specific terms for the recognition of membership in, and operation of, the future Qalipu Mi’kmaq First Nation.
Canada ratified the agreement in principle in 2008. Unfortunately, the Conservative government badly mismanaged the negotiations and implementation of membership criteria. Initial estimates of likely band membership were approximately 10,000 to 12,000 individuals. The enrolment committee has now received 103,000 applications. This unexpected volume of applications led to a huge amount of confusion, and has left the government scrambling to manage open-ended criteria to which it originally agreed.
In the summer of 2013, the federal government and the Qalipu Mi'kmaq First Nation band raised a supplemental agreement which adjusted the guidelines used to implement the membership criteria. These new guidelines were designed to make it more difficult to meet the enrolment criteria, and all applications are being reviewed under the new guidelines.
This has led to numerous rejections and left many who had applied under the original criteria very disgruntled with the process. In fact, this review could result in individuals who have already been granted membership in the band losing their status.
The Liberal Party recognizes that both the agreement and supplemental agreement flow from a nation-to-nation process that must be respected. However, it is unclear whether the bill is actually required to implement these agreements and, as I noted before, half of the bill is actually focused on limiting the government's potential liability for mismanaging this process.
It should be stressed that the federal government has been intimately involved in both designing and implementing the enrolment process.
Clause 4 of the bill provides that no one may receive “any compensation, damages or indemnity” from any entity, including the crown, because of being removed from the schedule to the Qalipu Mi'kmaq First Nation band order.
The government, in a process that has been mired in confusion and controversy, is now asking parliamentarians to prejudge whether applicants may be entitled to compensation for any mismanagement or the impacts of the retroactive changes to how the membership criteria are being interpreted.
As we learned from testimony at committee, this legal indemnification was not requested by the band and is not something it is looking for. It is clear that the Department of Aboriginal Affairs and Northern Development badly underestimated the number of applications that would be put forward during the membership process, relying extensively on measures of self-identification of indigenous heritage.
This is particularly puzzling, given that we know that generations of prejudice and marginalization induced many in Newfoundland to hide their indigenous heritage. As a result, whole family histories have been buried.
Whether damages are appropriate in specific cases is matter that is more appropriate for a court to decide. A judge will have the benefit of the facts on each particular case or class of cases.
It is unacceptable for the minister to use legislation to insulate his department from possible damages using a bill that he claims is simply to implement the agreements reached with the Federation of Newfoundland Indians and more recently the Qalipu First Nation.
Pre-emptively removing access to legal damages that an individual would be otherwise entitled to, flowing from an enrolment process that has been the subject of such confusion and controversy, is simply wrong.
That is the reason the Liberal Party of Canada will be voting against Bill C-25.
