Indigenous and Northern Affairs Committee on March 25th, 2014

[Stephen May]

The section you're speaking of, which I believe is clause 4 of the proposed legislation, is not specifically addressed in the supplemental agreement. I want to make it clear that it's not something that my client specifically requested in the agreement.

I have had previous experience with this type of provision in my home province, where an award of a court actually was reversed in legislation. I'm aware that similar provisions have been present in previous federal legislation and have resulted from policy changes, particularly in dealing with the previous law, which had the result of women sometimes losing their aboriginal status. That was corrected back in 1984-85. I believe the legislation that brought about that change had a similar type of provision.

The other thing I wish to raise in respect of that provision is that my client and the Government of Canada, through our continuing discussions, have gone to great lengths in trying to communicate the supplemental agreement to every applicant, including those who have been placed on the founding members list or have received letters stating that under a decision of the enrolment committee there would be a recommendation to the minister that their name be added to the founding members list.

Those people have been advised through communications. My client has attempted to communicate it through its website, and I understand the Government of Canada has done the same thing. We've sent individual mailings to every applicant to advise of the supplemental agreement and its requirement and potential impacts. People have two years to adjust their expectations, based on what has been negotiated. That's important to keep in mind when people argue that they may have a claim in damages, because the important thing here is the integrity of the criteria that our clients negotiated.

As I said in my presentation, my client has an interest in ensuring that those criteria are followed and that people who were never intended to be granted membership do not receive it, because that undermines not only the integrity of the agreement, but the fight that my client undertook for over 30 years to get to the point to have a band established for those who fought for that band and those who are in a situation to add to the culture and growth of the Mi'kmaq presence on the island of Newfoundland. If people who never met the criteria get in and undermine that process, I think that has a detrimental impact on the band itself and for the development of the Mi'kmaq culture on the island.

So between the two things—

[Carolyn Bennett, Liberal, St. Paul's, ON]

I'm sorry, but could I just ask.... So the intent was the integrity of the list, and you don't need the bill to be able to add people to the list, but you do need the bill to be able to take people off the list. But in the original request, clause 4 about damages was not in your original understanding of the bill.

[Stephen May]

It's not something that we requested. We were aware that a bill was being tabled, but it wasn't presented to us for vetting before it was presented to Parliament.

[The Chair, Conservative, Chris Warkentin]

Thank you, Ms. Bennett.

We'll turn to Mr. Dreeshen for the next questions.

[Earl Dreeshen, Conservative, Red Deer, AB]

It's great to be able to talk to you, Mr. May. I appreciate this opportunity.

Among the things you mentioned, I was curious about the criteria that you outlined. No doubt they were well intentioned, but the concept of residency, where you are living in or around a particular region or having frequent communications...and of course you are there promoting the Mi'kmaq interests. You have all these different levels of involvement, but I think as you're rightly saying, it got to the stage where people's interpretation was such that the expectations became somewhat difficult to deal with.

I think of my own situations in Alberta. Of course it's an entirely different case, but simply because your grandparents had dealings with the Indians in central Alberta when it was in the Northwest Territories or with fur traders and so on or you'd set things up to help aboriginals in your communities, those things don't tie into the same level of involvement that perhaps some of the 100,000 people whose names are there are expecting.

One of the other things you said was that they had all these decades of litigation as they tried to sort things out and come up with a solution. You had to work closely with the Government of Canada in order to make this work. I'm just wondering if you can speak to some of that collaboration. You mentioned how the FNI and the government have gone to great lengths to communicate with the founding members. Perhaps you could expand on that for a moment.

[Stephen May]

Well, as I responded to the previous question, we've recognized all along that it was important to communicate the supplemental agreement and the underlying principles leading to the supplemental agreement to not only the founding members but all applicants who applied under the process. My party has posted the agreement on its website. The chief of the Qalipu Mi'kmaq band has posted various messages on his website to try to make people aware of the process. Each applicant was sent a comprehensive bulletin describing the supplemental agreement and the requirements of the supplemental agreement.

With all those communications, in addition to responses to media requests—there has been quite a bit of media surrounding this, at least in my home province—people in general, even people who are non-applicants, are aware that this assessment and reassessment are taking place. The goal is not to keep it secret or to somehow keep it under wraps. We have gone to great lengths to make the details public so that applicants will know what to expect. All of that has been discussed between the parties, with each party encouraging the other to take steps to make sure the public is advised.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you.

In your communications with all of the applicants, have you found any who have said they would voluntarily remove their name from the list? Are they looking at it and maybe saying they don't want to have to force your organization or the government to actually go through this entire vetting process, or are they more or less waiting around to see if the lottery ticket shows up?

[Stephen May]

I'm not sure I can answer that. I have no personal knowledge one way or the other, so I'm unable to answer that question.

[Earl Dreeshen, Conservative, Red Deer, AB]

Okay.

There is also, I suppose, a bit of a misconception that this bill was intended to impose a quota on the number of applicants who can become members of a first nation. I know you said the independent chair of the enrolment committee stated that there wasn't a quota. I wonder if you could elaborate on this for the benefit of the committee.

[Stephen May]

Yes. In fact I'm not aware of any discussions where a quota is being set or there is a magic number that people want to get to. I want to make it clear that while it's reasonable to anticipate there will be a reduction in the number of founding members as a result of this assessment and reassessment, there is no clear indication as to what that reduction level will be. The number will be the number, whatever that number will be, after these applications are assessed and reassessed. There is no goal to try to reduce or diminish the numbers down to a particular level.

[The Chair, Conservative, Chris Warkentin]

Mr. May, we want to thank you for coming and for being available to our committee to answer the questions that we had. I think your answering provided clarity for committee members, so we do appreciate that. Thank you for being with us and certainly thank you for your time.

Committee members, we will now adjourn.