Indigenous and Northern Affairs Committee on March 25th, 2014

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

It is as I explained a bit earlier. Right now while the Governor in Council has the authority under paragraph 2(1)(c) and subsection 73(3) of the Indian Act to declare a body of Indians to be a band for the purposes of the Indian Act, there's no express authority in the act to amend an order establishing a band. Certainty is required if we are going to implement the supplemental agreement, and that certainty can only be obtained by enacting legislation that will provide the Governor in Council with the appropriate authority to make the required corrections to the recognition order.

That legislation is an essential part of the enrolment process in order to fully implement the agreements. It ensures that the Governor in Council is properly authorized to carry out the last step of the process, which is the issuance of a new founding members list to modify the existing one.

[Ray Boughen, Conservative, Palliser, SK]

Minister, we talked about preserving the integrity of the enrolment process and the original intent of the 2008 and 2013 agreements. I think it's fair to say that some people have been less well-informed on the issue, which is very technical in nature. Can you explain to the committee why the changes to the band order required a legislative response and cannot simply be made through regulations? Can you please explain why legislation is required to implement the 2013 supplemental agreement?

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

This goes back to the question of ministerial authority to remove names under the Indian Act. Prior to 1985, the Indian Act included the mechanism through which a person could legally cease being an Indian within the meaning of the act and the mechanisms in those days were either voluntary or non-voluntary. When we amended the Indian Act in 1985, we did away with that, such that if you look at the intent of Parliament.... That's why I say there's no express authority for the Governor in Council to do what it might have to do in this instance, which is the amending of the schedule. That's why we need this bill.

[Ray Boughen, Conservative, Palliser, SK]

Thank you, Chair.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Ms. Crowder just has one short question.

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

It's a very quick question, Minister.

Was there any consideration given for children that were subject to the sixties and seventies scoop? They wouldn't be able to maintain those close ties to communities, having been forcibly removed from their homes. I just wondered if that had come up in the discussions.

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

No, it did not and the reason it did not is there were no reserves in Newfoundland at the time of the sixties scoop. There were no reserves there from which children could have been removed. This means that the sixties scoop did not happen in Newfoundland since there were no reserves.

Related to this kind of question is the fact that the supplemental agreement is clear as to adopted children. They will still be able to become members of the band if their parents are.

[The Chair, Conservative, Chris Warkentin]

Thank you.

Minister, we want to thank you for coming today. We appreciate that you have a busy schedule and that you made time for us.

Colleagues, we will suspend and then we'll have our next witnesses by video conference.

The meeting is suspended.

[The Chair, Conservative, Chris Warkentin]

Colleagues, I'll call this meeting back to order.

We are joined for the second portion of our meeting by Mr. Stephen May, who is the solicitor for the Qalipu Mi'kmaq First Nation.

We want to thank you, Mr. May, for joining us. We appreciate that you're very busy and we want to thank you for making time.

We will turn it over to you for an opening statement, and then we'll have some questions for you following.

[Stephen May, Solicitor, Qalipu Mi'kmaq First Nation, Federation of Newfoundland Indians]

Mr. Chair, I'm actually here on behalf of a request of the Federation of Newfoundland Indians, a party to the agreement with the Government of Canada to establish the Qalipu Mi'kmaq First Nation.

My client asked me to appear as a result of an invitation issued by the committee to provide a representative to speak to Bill C-25, and just as importantly, to speak to the underlying agreement and the activities that have surrounded the agreement and have led to Bill C-25's being introduced in Parliament.

By way of background, the Federation of Newfoundland Indians started as the Native Association of Newfoundland and Labrador in 1971. It changed its name in 1973 to the Federation of Newfoundland Indians to represent Mi'kmaq bands that had established in various communities around the island of Newfoundland. The primary goal of the organization was to achieve recognition of its members for registration under the federal Indian Act.

The negotiations between the Federation of Newfoundland Indians and the Government of Canada towards this goal were first initiated in the late 1970s and resulted in the federal government's agreeing to recognize one of the member bands of the Federation of Newfoundland Indians, that being the Conne River band, as an Indian Act band in 1982, with its ultimate formation in 1984.

However, at that time there was no agreement reached to recognize the remaining federation bands under the Indian Act. While discussions continued between the Government of Canada and the Federation of Newfoundland Indians, they were without any avail and resulted in the federation's commencing litigation against the Government of Canada in 1989 in the Federal Court, the goal being recognition of its members as status Indians under the Indian Act.

I won't go into the details of the litigation or the basis upon which the litigation was commenced, but ultimately, in the early 2000s, the Federation of Newfoundland Indians and the Government of Canada commenced discussions to find means to settle the court case with the result of recognition of federation members as status Indians under the Indian Act.

Those negotiations ultimately resulted in an agreement in 2008 that met this goal. But they also brought into the agreement the fact that other Mi'kmaq organizations on the island of Newfoundland had also commenced litigation or were in the process of commencing litigation. The agreement was negotiated so as to bring the members of those groups under the umbrella of the agreement.

The overall intent was to establish a landless band for the Mi'kmaq group of Indians on the island of Newfoundland. When I say “landless band” I mean a band without a reserve. The agreement does not, in the opinion of the federation, affect potential land claims that the band may have but recognizes that the band would be organized for the provision of benefits that would normally be provided to off-reserve Indians.

The negotiation of the agreement provided a unique opportunity for the Federation of Newfoundland Indians and the Government of Canada to establish a membership for the band based on negotiated criteria. Consistent with the litigation that had been commenced by the Federation of Newfoundland Indians, those criteria for membership came to be based on the criteria of community and the aboriginal community under the decision of the Supreme Court of Canada in the Queen versus Powley.

Those criteria, which are embodied in section 4.1 of the 2008 agreement, required evidence of aboriginal ancestry without regard to a set minimum of blood quantum. There had to be evidence of connection to an ancestral Mi'kmaq community as listed in the agreement, recognizing the fact that these communities had not been recognized for Indian Act purposes when the Province of Newfoundland joined Canada in 1949. There had to be evidence of self-identification as a member of that Mi'kmaq group of Indians on the island of Newfoundland prior to the formation of the band. Furthermore, there had to be evidence of individuals having been accepted as a member of the Mi'kmaq group of Indians on the island of Newfoundland prior to the formation of the band.

Again, these criteria were drawn from the Powley decision. Neither was to be weighted ahead of any other, meaning that all of the criteria were to be considered on their own merits and one was not to determine membership above any other.

Membership in the Mi'kmaq group of Indians for the purposes of self-identification and community acceptance was based on two fundamental principles: residency, if the applicant for membership was living in or around one of the communities listed in the agreement, or frequent visits or communications with resident members of the Mi'kmaq community; and evidence of maintenance of Mi'kmaq culture or way of life. This could include membership in an organization promoting Mi'kmaq interests and the individual's own knowledge of Mi'kmaq customs, traditions and beliefs, and participation in cultural or religious ceremonies or pursuit of traditional activities. The intent was to allow for non-residents to display a level of involvement in the local Mi'kmaq groups that they could be said to be members even though they lived outside those communities.

Ultimately, the band was to be made up of Mi'kmaq with current and substantial connections with the listed communities on the Island of Newfoundland who, based on their residency or level of involvement with the Mi'kmaq group, were in a position to actively contribute to the development of the culture, traditions, and activities of the Mi'kmaq communities throughout the island of Newfoundland.

During the course of the negotiations, it was recognized that the agreement could be applied to more than members of the Federation of Newfoundland Indians which, at the time the agreement was signed, approximated 10,500 members. Nevertheless, the parties did not expect any more than 20,000 applicants. Now there is in excess of 100,000 applicants, the vast majority of whom appear to reside outside the Mi'kmaq communities listed in the agreement.

These numbers raised questions within the Federation of Newfoundland Indians as to whether the agreement had been and would continue to be followed as intended when it was first negotiated. The Federation of Newfoundland Indians, as a party to the agreement, viewed itself as having an obligation to ensure that the criteria for founding membership in the Qalipu Mi’kmaq First Nation had been applied as intended.

As it became clear that under the terms of the original agreement the number of pending applications could not be considered before the process ended, my client wrote the federal minister to request an extension to the agreement, which ultimately led to discussions and an agreement, known as the supplemental agreement, that allowed for all applications that have been filed to be assessed and reassessed to determine whether the criteria for founding membership had been applied as intended by the parties to the 2008 agreement, and to assure the equal application of the criteria in that agreement to all applicants regardless of when they filed.

Ultimately, this assessment and reassessment may result in people who have obtained membership in the Qalipu Mi’kmaq First Nation being determined not to have met the original criteria.

This necessitates, in our understanding, the legislation, Bill C-25, to ensure that the Government of Canada has the authority under the law to remove the name of a person who has been added to the founding membership list but is found to have not met the criteria.

In our view, the legislation gives effect to the intent of the supplemental agreement, and in that respect, Mr. Chair, the Federation of Newfoundland Indians is here to answer any questions arising out of the circumstances leading to the introduction of that legislation.

I'm happy to answer any questions that any members of the committee may have.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. May.

We'll begin the rounds of questions with Ms. Hughes.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Chair, I will share my time with Vice-Chair Jean Crowder.

Thank you very much for your submission.

Given the numbers that are out there now with a number of applications having been received, do you know if the enrolment committee has the necessary capacity to evaluate and re-evaluate all of these applications before the 2015 deadline? If not, has the government indicated that they would actually be providing more resources for this?

[Stephen May]

Well, pursuant to the agreement, of course, the enrolment committee is specified to include two representatives appointed by my client and two representatives of the Government of Canada, as well as a chair. The Government of Canada has committed administrative resources to the committee to allow it to basically set up a process that should allow the committee to review each of the applications.

The agreement calls for an implementation committee to be established, with three representatives from my client and three representatives from the Government of Canada, with a view to monitor the pace at which the enrolment committee is able to review the applications and from that, to determine whether sufficient or adequate resources are available.

At this time, it is the expectation that we should be able to meet the 2015 date that is in the supplemental agreement for the assessment and reassessment of these applications. It is a situation that will be monitored. From my client's perspective, they will be interested in seeing resources applied to ensure that the date is met.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

You've indicated that it's going to be monitored. Is there a point in time such that there will be a re-evaluation of whether or not it looks like it's going to be done on time?

[Stephen May]

No specific point has been identified in our discussions to date.

There is a report card system that has been established based on where the enrolment committee is expected to be at particular points in time. If there is an indication that they're falling behind, this is supposed to be reflected in the reports that are supposed to come to the implementation committee monthly. At that point, if it's falling behind, obviously there will be questions asked as to why and whether there needs to be some additional response to put the process back on track.

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

Thank you, Ms. Hughes.

Thank you, Mr. May. I have just one question for you.

When the minister was here, I posed a question with regard to children who were removed from their communities in the sixties and seventies. It's commonly referred to as the sixties scoop. The minister indicated quite rightly that there were no reserves in Newfoundland. However, these children could potentially have been raised in communities where they would have been able to maintain their cultural and linguistic connection, and because they were forcibly removed from their homes, even if they weren't reserves, they were not able to maintain those cultural and linguistic connections.

Did this matter of children who were forcibly removed from their homes come up for discussion about how it might be considered in the membership? They wouldn't be able to maintain those connections through no fault of their own.

[Stephen May]

I'm familiar with the sixties scoop. Because of the unique history in Newfoundland, where our first premier, Mr. Smallwood, is reported to have indicated that there were no aboriginal people on the island of Newfoundland, something we view as challengeable and always have, it didn't lead to the type of forced relocation that happened in other areas of the country during the 1960s.

Having said that, I can't dismiss the fact that there may have been a potential for somebody to have been adopted outside of their community to parents with non-aboriginal ancestry. That was not specifically addressed in the agreement. It was recognized, however, that people who had left their communities and were aware of their aboriginal ancestry, particularly with respect to their Mi'kmaq ancestry on the island of Newfoundland, did have an opportunity, or would have an opportunity if they were aware of that, to connect with their culture, and would be provided an opportunity to apply under the agreement.

In more recent times, under the supplemental agreement, there are provisions to allow children who may have been adopted outside of their communities and who had not reached the age of 18 before the band was established, and still have not reached the age of 18, to apply and still rely on the ancestry of their parents, including their parents' self-identification and group acceptance.

That's perhaps not a complete answer to the situation that you're addressing, Ms. Crowder, but there is an opportunity for young people who didn't have the opportunity to pursue their past or to self-identify or connect with their culture to do so through their parents. Going back to the 1960s and 1970s, however, it was envisioned that people who were aware of their ancestry would have come forward and indicated an interest to connect with their culture, and if they did, this agreement would address that.

[The Chair, Conservative, Chris Warkentin]

We'll now turn to Mr. Seeback for his round of questions.

[Kyle Seeback, Conservative, Brampton West, ON]

Thanks, Mr. May, for being here and giving us your information.

I took the opportunity to read through the supplementary agreement. As I read through section 8 of the agreement—I don't know if you have it there or not—it certainly talks about the criteria from the Powley decision. It says: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.

Then it goes on to explain that section 24 of the guidelines stated that as long as you signed an application, that counted as previous evidence of self-identification.

As a lawyer myself, I look at that and wonder if this was perhaps what I might describe as a drafting oversight or a drafting error in the first agreement.

[Stephen May]

Yes, it was. It became apparent as we proceeded into the process. We received reports of a huge influx of applications after the first year of the agreement, which, as you know if you've read the agreement, would have been the first stage of it. We were getting far more applications than we had anticipated we would when the agreement was being negotiated, and we wondered where these applications were coming from considering the number of people we had anticipated being involved in the aboriginal organizations in Newfoundland.

The idea behind signing the application was that a person was self-identifying before the establishment of the band in the same way that anyone did when they answered a question as to their aboriginal status on a census form or a job application where an affirmative action program existed. Doing so was viewed as self-identifying. However, when the numbers came in and we looked at the agreement, we recognized there was a drafting oversight and a disconnect between the guidelines and the criteria, which made it clear that self-identification had to occur as of the date of the recognition order or, in other words, the establishment of the band. Section 8 of the supplemental agreement was negotiated to address that drafting oversight.

[Kyle Seeback, Conservative, Brampton West, ON]

Great. That's my question.

[The Chair, Conservative, Chris Warkentin]

Ms. Bennett, we'll turn to you for your questions.

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

When this bill was first tabled, we actually made a call to your client. They hadn't yet seen the bill, so that was a bit worrying to us, but it seems that your client is quite comfortable with this bill.

This is an agreement between your client and Canada. Is there anything in the actual tabled bill that you feel needs to be amended, or are you quite comfortable with the bill as it is right now?

[Stephen May]

We're not making any presentation to require an amendment to the bill. My client stands behind the supplemental agreement that it negotiated. The bill is a technical response on the part of the Government of Canada to fulfilling the obligations under the supplemental agreement, particularly where it might involve the potential removal of a person from the founding members list who is ultimately found not to have met the criteria that the parties put in place in 2008. In our reading of the legislation, we do not see anything in the legislation in that respect that in any way conflicts with the supplemental agreement and its intent.

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

Obviously the band welcomes the indemnification, but do you see any concern regarding the precedent this kind of legislation preventing citizens from going to court and being awarded damages might set?