Evidence of meeting #18 for Indigenous and Northern Affairs in the 41st Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was criteria.
A recording is available from Parliament.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
In the original agreement. Because that's what has opened up this Pandora's box right now. Everybody applied based on the criteria that was very open, but you still had criteria to meet under the agreement in principle. We have a signed contract with the Government of Canada.
Now we're introducing a supplementary agreement, but it took five years to do that. That's our concern. This should have been identified long before—
Conservative
Kyle Seeback Conservative Brampton West, ON
If it had been done two years later, you wouldn't be having the concerns you're here at the committee with?
Representative, Mi'kmaq First Nations Assembly of Newfoundland
It's the bill that we're here about because it's taking away the right of the Mi'kmaq people of Newfoundland. It's giving someone the authority to take their name off a list.
I carry a status card. My concern, like many in our assembly, is that I'm entitled to that. I feel very strongly that I'm entitled to that. I practise my culture, but it's not about the culture. It's not about whether I hunt and fish. It's not about the money. It's about my recognition that I've been looking for all of my life, and someone is going to take that away.
Conservative
Kyle Seeback Conservative Brampton West, ON
Well, not necessarily. That's not a foregone.... You're saying it's a foregone conclusion—
Representative, Mi'kmaq First Nations Assembly of Newfoundland
No, but based on this bill, it could happen, right?
Conservative
The Chair Conservative Chris Warkentin
Thank you.
We're going to turn to Ms. Crowder for the follow-up questions.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
I think you probably are aware that the bill that's before the committee has no scope to deal with enrolment criteria. This bill simply indicates that it gives the Governor in Council the ability, based on recommendations by the enrolment committee, to add or remove people's names from the list.
The parliamentary rules don't allow us to engage in matters outside the spirit and intent of the bill, so it's a challenge for us, and probably not appropriate for us to talk about membership criteria because that membership criteria was developed initially by the community. I just wanted to touch on that for one moment.
My understanding, and I think this probably gets to the heart of this, is that the rationale behind the enrolment criteria and the subsequent clarification of it was based on the fact that parties to the agreement were guided by the Supreme Court of Canada's decision in R. v. Powley. In that decision 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 subparagraph 4.1(d)(i) of the agreement. The parties intended that to be the criteria used for acceptance.
So I think that the challenge for people is that they have the initial eligibility and enrolment process, and you're right in that there is a lack of clarity about that initial eligibility enrolment process under chapter 4.1, “Eligibility Criteria”. My understanding is that in discussion with all parties, that resulted in the supplemental agreement in order to clarify membership criteria based on the Powley decision.
Is that your understanding of it as well?
Representative, Mi'kmaq First Nations Assembly of Newfoundland
Yes, and the thing is that with the mismanagement of the process, there's a legal liability there as far as we're concerned, because we didn't set the criteria, we didn't set anything in place. All we were presented with was the agreement after it was signed, basically; this is how it's going to be, right? So someone has to be liable for the mismanagement of the process.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
Ms. Hart, I'm not a lawyer either, but perhaps Ms. Lickers can comment on this particular piece.
My understanding of it is that what clause 4 does is it prevents people from suing for compensation, but it doesn't prevent people from taking the government to court for whatever else they may feel has been erroneous in this agreement.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
That has yet to be determined. It's not explicit in the bill. Right now—
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
It isn't explicit but it's not explicit either that people are prevented from going to court.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
No, it's not explicit that people are prevented from going to court. If you were looking for declaratory relief, I'm sure you could go to court. Not a lot of people can afford to go to court simply for declaratory relief.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
We're in a position where many first nations are disadvantaged because they can't go to court on any number of matters on which they feel the government has been bargaining in less than good faith. There are all kinds of matters out there, and I would agree that the cancellation of the fund that used to be available to allow people to do that is not a good thing. I just wanted to make the point that there's nothing explicitly in this piece of legislation under clause 4 that prevents people from taking the government to court. My understanding is it just limits their ability to sue for compensation.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
Right, to sue for even a basic recovery of the costs they incurred in preparing an application in reliance on the original criteria which was then modified without consultation and without ratification under the agreement.... It brings into question whether somebody could even recover costs if they were successful in taking the federal government or the band or council to court for anything other than damages, declaratory relief, judicial review application. It's questionable whether that individual, if successful, would even be reimbursed for any portion of the cost.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
My understanding of the way this clause reads is they can't seek compensation or damages because their name was omitted or removed from the list, but it doesn't prevent them from going to court on other matters with regard to that as long as they're not seeking compensation specifically. Again, I'm not a lawyer, but the way I'm reading this is that, if it's not about compensation for damages for having their name removed, they could go to court for other matters with regard to membership as long as they weren't seeking damages or compensation.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
I'm afraid I might be missing your point.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
The point I'm making is they can still go to court for matters with regard to membership. It's just that they can't go to court to seek compensation or damages—
Representative, Mi'kmaq First Nations Assembly of Newfoundland
—which, in my view, would be the primary purpose for going to court.
NDP
Jean Crowder NDP Nanaimo—Cowichan, BC
They could be asking for reinstatement or other matters related to membership that aren't specifically related to damages.
Representative, Mi'kmaq First Nations Assembly of Newfoundland
I suppose, yes, they could seek reinstatement.
