Indigenous and Northern Affairs Committee on March 25th, 2014

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting to order. This is the 17th meeting of the Standing Committee on Aboriginal Affairs and Northern Development.

Today we have launched into our study of Bill C-25.

We have the minister with us for the first part of the meeting.

We want to thank you, Minister, for joining us. We're always thankful that you make time to attend our meetings. It seems to be more often than not, so thanks so much for joining us yet again.

We're going to turn it over to you immediately to hear your opening statements. Then we'll follow up with some questions.

For our second witnesses we have representatives from the Federation of Newfoundland Indians. That will be by video conference, colleagues, which is why we're in this room today.

Minister, we'll turn it over to you for your opening statement and then we'll have some questions for you.

[Bernard Valcourt, Conservative, Minister of Aboriginal Affairs and Northern Development]

Thank you, Mr. Chair.

I thank the committee for the opportunity to come before you today to explain how Bill C-25, the Qalipu Mi'kmaq First Nation Act, protects the integrity and credibility of membership in the Qalipu Mi'kmaq First Nation.

As members of the committee will be aware, in 2008, the Government of Canada and the Federation of Newfoundland Indians announced the Agreement for the Recognition of the Qalipu Mi'kmaq Band, which provided for the creation of the Qalipu Mi'kmaq First Nation as a “landless” band. This agreement set out the eligibility criteria and a two-stage enrolment process for membership in the band.

At the end of the first stage, the Qalipu Mi'kmaq First Nation Band Order was issued on September 22, 2011. Pursuant to that process, 23,877 people were registered as founding members of the first nation. This number, although higher than the initial projections of 8,700 to 12,000 individuals, seemed reasonable, as it was not out of line with the results of the 2006 census which revealed that there were approximately 23,450 residents of Newfoundland and Labrador who self-identified as aboriginal.

However, issues with the enrolment process became apparent during the second stage. Remember, we had the first 12-month stage of enrolment. The second stage was a 36-month stage, or three years, during which people could enrol, which was really intended to ensure that all would have ample opportunity to apply and be added to the members list. The second stage ended on November 30, 2012.

As you may know, an unexpected number of individuals submitted applications to join the band during that second phase. As a matter of fact, more than 75,000 additional people submitted applications, bringing the total number of applications for membership in the first nation to more than 101,000. From the outset it was clear that the parties'—and when I say the parties, members have to realize that we're talking about the Federation of Newfoundland Indians and Canada—original intent was that a member of the band would be someone who has a current and substantial connection with the Mi'kmaq group of Indians of Newfoundland as described in section 1.13 of the 2008 agreement.

The supplemental agreement also notes that it was further understood by both the Federation of Newfoundland Indians and the federal government that the agreement would apply primarily to people who live in or around the 67 communities named in the 2008 agreement. This did not mean, however, that non-residents could not also become members. The 2008 agreement specifically provided for individuals who lived outside of these locations to become members if they self-identified as members of the Mi'kmaq group of Indians of Newfoundland and were accepted by the group. However, they would need to have maintained a strong and substantial cultural connection with a Newfoundland Mi'kmaq community.

Now, the vast number of applications from outside of these communities and outside of the province raised significant questions about the credibility of this process. These were concerns that were shared by the first nation, not to mention the practical problems that this situation presented in creating an enormous backlog of applications to be processed and the fact that the deadline for dealing with applications had expired.

Because of such reservations, the federation and the Government of Canada entered into a joint process to address these issues that had arisen during the enrolment process in order to protect the integrity of the enrolment process and the community's reputation. Discussions between the federation and Canada regarding the appropriate implementation of the 2008 agreement led to the signing of this 2013 supplemental agreement this past July.

The supplemental agreement does not change the substance of the original 2008 agreement; that agreement is still fully in effect. Rather, what the supplemental agreement does is it provides clarity to the requirements for enrolment, outlines additional documentation requirements for applications, and provides for an extension of the 2008 agreement timelines.

It is also important for committee members to understand that the criteria for enrolment, as negotiated and agreed to by the parties and set out in section 4.1 of the 2008 agreement, have not changed; the criteria are the same. What the supplemental agreement does is it ensures that only those with a legitimate claim to membership and registration are enrolled to become Qalipu Mi'kmaq First Nation members.

The implementation of the supplemental agreement provides, I suggest, for a fair process that ensures the equitable treatment of all applicants by requiring that all applications submitted since the enrolment process began be renewed so that it is not limited to the second-stage applications but covers both stages.

This brings us to the necessity for the legislation we have before us today. The requirement under the supplemental agreement to review all applications, including those that were found to be eligible under the previous process, means that the Governor in Council may be required to amend the recognition order initially establishing the band. You will remember that after the first stage and the court action that delayed the adoption of the recognition order was done—on September 22, 2011, I think—the recognition order establishing the band was made by the Governor in Council.

More specifically, it means that it is possible that some of the current 23,877 members will have their membership revoked as well as their entitlement to be registered as Indians under the Indian Act.

Because the Governor in Council does not have, as we speak, the express authority to remove names from the schedule to the recognition order, legislation is required to provide the Governor in Council with that authority. This step is therefore required in order to complete the enrolment process.

In addition, clause 4 in the bill provides certainty that no compensation or damages will be paid either by Canada, the first nation or any other party, to those individuals who—at the end of the process—are determined not to be members of the Qalipu Mi'kmaq First Nation.

I know that this clause has been the source of significant debate, and I want to take this opportunity to be very clear that nothing in this bill prevents individuals from appealing the enrolment committee's decision pursuant to the agreement, nor prevents court challenges to the agreement.

Rather, this clause ensures that applicants who are found not to be entitled to registration do not obtain compensation for benefits that are only intended to registered Indians. As you know, the fact of conferring band status and associated membership brings with it a range of important benefits under the Indian Act, such as access to certain federal programs and services for first nation members, and should not be taken lightly.

This legislation will help us ensure that an individual considered for membership fully meets all the conditions required to join Qalipu Mi'kmaq First Nation and at the same time respects our responsibility to taxpayers. It is my hope that as the committee studies the bill, members will recognize both the necessity and merit of the Qalipu Mi'kmaq First Nation Act, and will help to ensure its swift passage.

I would be happy to answer your questions now. If I cannot do so, I am accompanied by two officials, Mr. Andrew Saranchuk and Mr. Martin Reiher, who will help me to reply to your questions if I need to call on them.

Thank you.

[The Chair, Conservative, Chris Warkentin]

Thank you, Minister. We appreciate your opening statement, and thank you again for being here.

We'll begin our rounds of questioning with Ms. Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Minister, for coming before us.

As you know, the NDP supported the bill in principle at second reading, but we did want it to come to committee because we have a couple of technical questions, so I'm going to start with some of the technical questions.

Clause 3 of the bill, as you pointed out, gives the Governor in Council the ability to add the name of a person to or remove the name of a person from the schedule. Just for clarification of that process, will the Governor in Council act based on recommendations by the joint committee that will be recommending that names be added or removed?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The enrolment committee has been given the directive to submit at the end of the process a new founding members list, which will be submitted to the minister, who in turn will ask the Governor in Council to approve that list. That is the schedule to the recognition order, so that's the amendment that would occur. That will be on the findings of the enrolment committee.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Just to be really clear, because I think there has been some confusion, it's the enrolment committee that's making these recommendations, and the minister and the Governor in Council will act on those recommendations.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

You are correct.

You see, the enrolment committee makes a determination of eligibility and admissibility. If someone is not happy with that finding, the appeal master is still there. They can appeal to the master and after that, this is the decision that the enrolment will embody in the list that they will provide to the minister for recommendation to the Governor in Council.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Also, and you alluded to this in the answer to the question, in the supplemental agreement, where it says, “Now therefore the parties agree as follows:” point number two says, “All Applications Reviewed.” It says, “All appeals will be determined by the Appeal Master by 31 March 2016.”

I want to clarify whether that appeal process applies to members who may have been accepted as band members as of 2011. As these applications are all being re-reviewed, any member who may have had their membership revoked based on the supplemental agreement will also have an avenue of appeal. Is that correct?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

That is correct.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I think there also has been some misunderstanding about that as well.

Everybody in effect, whether they're currently in the application process or whether they were previously applied and approved, will still have the right to appeal.

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

You're right.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I want to touch on the 2011 date, because I think a number of us have some confusion.

There are two pieces in the briefing notes. You alluded to it again, that the first stage resulted in the issuance of the Qalipu Mi'kmaq First Nation band recognition order on September 22, 2011, legally creating the band. Then in the questions there was an appendix, a comparison of enrolment committee guidelines provided to the committee for clarification.

I wanted to clarify this point. It says, “Applications signed on or before 22 September 2011 are not required to take further action or to provide additional documentation to demonstrate self-identification.”

Am I understanding that people who were included in the 2011 process at this point will not be required to submit additional information on self-identification? It would only be on other grounds that they would be required to submit additional information. Is that correct?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Acceptance by the community, yes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I presume the significance of the 2011 date is that's the date the band was officially created and that's the kind of cut-off point going backwards and forwards. Is that correct?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

The wording of the agreement was such that the self-identification had to be at the date of the recognition order, or before. Since the recognition order is dated September 22, 2011, self-identification after is subject to a different.... Those have already met the conditions. That's why on this they don't have to resubmit.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

This is really just a point of clarification because I believe there was some confusion about that 2011 date, and so that's the reason the band was created on that date and there's a before and after. Is that correct?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Yes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

With regard to the numbers, I understand it's a challenge to estimate numbers. We've seen it in the McIvor decision. We saw it in the 1985 Bill C-31 about estimating how many people are going to receive status or be reinstated as a result of legislation.

I know you mentioned the census figures in your speech, but were there other factors that the department considered when it was determining the anticipated membership, and I would assume determining the resources required to process those membership applications?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

There is a long history. We have the action that was started by those Mi'kmaq people in Newfoundland who were arguing to be recognized as Indians under the Indian Act in 1949. They had lists of their membership. We had several groups throughout, and in the communities where they were assembled, they had their lists.

That, I think, is the information which led to this assessment that there would be between 8,700 and 12,000 people who could qualify as an eligible member. As it turns out, that number.... The federation will tell you that they were as surprised as we were about the number of applications.

After the first round, when it came to 23,000, it was way beyond what was expected. It's almost double. Then if you look at the census for Newfoundland and Labrador, where about 23,000 self-identify as aboriginal, then you know....

Then the three years after when you see 75,000 more, and 46,000 of those in the last three months, it was the rush to the golden gate. That's what it looks like.

If we care about the Mi'kmaq of Newfoundland, these people have the right to a band that includes the people who had that strong connection with them, the cultural connection. They have to be real members of the Mi'kmaq First Nation. I think that this is the integrity we want to protect for the band.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you.

[The Chair, Conservative, Chris Warkentin]

Mr. Strahl, we'll turn to you.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Thank you, Minister, for coming here today again. It seems every other meeting we have the minister here to chat with us. It's good to see you again.

During the debate at second reading, we heard numerous times about the need to restore integrity to the enrolment process for the benefit of the Qalipu Mi'kmaq First Nation. As the debate progressed, we kept hearing about, as you've just described, the last-minute rush: 101,000 applications, as opposed to the 10,000 or so that were expected. A figure I remember is that would represent 11% of the total first nations in the country, if we were to take that at face value, so certainly there's a massive influx of applications there.

Obviously, it raised red flags for the Federation of Newfoundland Indians and the government, so something had to be done. I think this bill is what that is.

Can you inform the committee, maybe expand a bit on how Bill C-25 accomplishes the goal of restoring integrity to the selection process for the Qalipu Mi'kmaq First Nation?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

When you talk about the integrity of the enrolment process, you can also talk about the integrity of the first nations.

The word “integrity” refers to the state of being whole and undivided and the quality of being honest and having strong moral principles. At the heart of this worthy project to extend application of the Indian Act to the Mi'kmaq of pre-Confederation Newfoundland communities were the eligibility criteria agreed to by formal agreement and which this bill upholds and guarantees. Those criteria were also founded upon the Supreme Court of Canada decision in Powley, outlining the principles that should be considered when determining appurtenance to a group seeking recognition as aboriginals.

As you know, and this is confirmed by the supplemental agreement, only an individual of Canadian Indian ancestry, whether by birth or adoption, and on or before March 31, 1949, was a member of the Newfoundland pre-Confederation community, or is a descendant of such an individual either by birth or adoption who is not a registered Indian at the date of the recognition order, that is September 22, 2011, but that at such date self-identifies as a member of the Mi'kmaq group of Indians of Newfoundland, and is accepted by the group, is eligible to be enrolled as a founding member.

This is what this bill will guarantee. Because—and we don't know; we'll find out at the end of the process—if people have received status and have been declared a founding member without meeting these fundamental conditions to the integrity of the first nation, then they would have to be removed from the list. That's why we are seeking the authority. As the law currently stands, we don't think we have that certainty that the Governor in Council can take names out of the schedule. This is why we need this piece of legislation.

[Mark Strahl, Conservative, Chilliwack—Fraser Canyon, BC]

Obviously, the Qalipu Mi'kmaq First Nation was established to grant recognition to first nation individuals living in Newfoundland who, due to historical circumstances, hadn't previously been granted that status. I think as the second reading debate showed, there was a general consensus that we want to recognize the Mi'kmaq heritage and culture in Newfoundland. Being recognized as a founding member obviously is something of great importance and pride for the Mi'kmaq people.

One of the other criteria relates to very specifically real and substantive connections or ongoing connections to those communities, to that heritage. Can you elaborate on how Bill C-25 will ensure that the intent of the 2008 and 2013 agreements with the FNI will be reflected in the final version of the founding members list?

[Bernard Valcourt, Conservative, Madawaska—Restigouche, NB]

Bill C-25 will ensure that the intent of the 2008 and 2013 agreements is reflected by ensuring that those persons having a current and substantial connection to a pre-Confederation Mi'kmaq community as well as a current and substantial connection to the Mi'kmaq group of Indians of Newfoundland become founding members of the first nation as per section 1.13 of the 2008 agreement. Founding membership in the Qalipu Mi'kmaq First Nation was intended, as you mentioned, to be granted primarily to persons living in or around the locations enumerated in the 2008 agreement. It was agreed at the start that persons who did not reside in or around these locations had to have a substantial connection to the Mi'kmaq group of Indians to be eligible to become founding members.

As you know, individuals whose names appear on the founding members list are entitled to registration under the Indian Act. Clause 3 of the bill will enable the removal of individuals from the founding members list, and once an individual's name is removed from the founding members list, the registrar will be able to remove the individual from the register under the Indian Act. This will mean that an individual previously enrolled and registered would lose band membership and Indian status. This ensures that the first nations founding members list will be those who are legitimate Mi'kmaq people entitled to become status Indians under the Indian Act.