That, in the opinion of this House, in relation to the enrollment and registration process for the Qalipu Mi’kmaq First Nation Band, the government should commit: (a) to completing the enrollment and registration process for all applicants who applied on or before November 30, 2012 by agreeing to extend the 2007 Agreement for the Recognition of the Qalipu Mi'kmaq First Nation Band beyond March 21, 2013 until all such applications are processed; (b) to ensuring that the rules of eligibility for membership are followed by all government decision makers in any continuation of the enrollment process; (c) that all previous interpretations, precedents and rulings on matters affecting enrollment that were not specifically addressed within the 2007 Agreement but were established instead through the records of decisions made by the Enrollment Committee and the Appeals Master be made known to all participants in any future enrollment process and that the decision makers in any future enrollment process be instructed to guide their decisions in a manner consistent with such previous interpretations, precedents and rulings; (d) to the same standard of evidence as well as the same thresholds for the quantity and quality of information that was previously deemed acceptable by the Enrollment Committee, for the remaining 75,000 unprocessed applications to the Band; (e) that an independent Appeals Master will continue to be employed in any future enrollment process for the assessment of the remaining 75,000 applicants and that this person will be drawn from outside of government, from outside of the Federation of Newfoundland Indians and from outside of the Qalipu Mi’kmaq First Nation Band and that this Appeal Master will be vested with the same powers and authority and be drawn from the same legal and administrative background as the previous Appeals Master to ensure consistency with the rules and standards established under the previous enrollment process; (f) to maintaining all existing memberships, except in cases where fraud can be established that is material to the application; and (g) to ensuring that no eligible applicant who submitted an application in good faith prior to the November 30, 2012 deadline is disenfranchised from enrollment.
Mr. Speaker, thank you for giving leave to present my motion, Motion No. 432.
In 2007 the Prime Minister of Canada came to a small community on Newfoundland's west coast to personally announce that negotiations between the Federation of Newfoundland Indians and the Government of Canada had concluded in a workable arrangement that, once formally ratified by both parties, would see the formation and the recognition of a new first nation band and the recognition of all Newfoundland Mi'kmaq as Indians under Canadian law. On September 26, 2007, the Prime Minister said:
For more than half a century, the Mi'kmaq people of Newfoundland were among the 'Forgotten People,' as the Congress of Aboriginal Peoples calls its members...They never stopped fighting for recognition and now, at last, that title can be cast aside.
It was on that day that the Prime Minister of Canada personally authorized the agreement in principle to establish a modern day recognition of a very ancient people and he endorsed its every word as his own.
Unfortunately, time appears to have worn down, if not exhausted, the Prime Minister's enthusiasm toward his earlier promise and today, despite an assumption that all Mi'kmaq would be treated fairly and equally under the terms of an agreement that had the personal backing of a Prime Minister, tens of thousands of Mi'kmaq people have been left feeling abandoned and frustrated. They are concerned.
My motion today is not only about what was originally promised in the Prime Minister's agreement; it is about the work yet undone. It is about the task of completing the enrolment process of the Qalipu Mi’kmaq First Nation Band and for all of its deserving members, as promised. My motion is also about ensuring that those who have already been established as members of the Qalipu band do not lose that recognition from any arbitrary or unjust decision by their respective leaders.
My motion is based on, in part, the very words of the Chief of the Qalipu First Nation who has formally asked the Government of Canada to allow the enrolment process to continue beyond the agreement's scheduled expiry date of March 21, and that it continue under the same rules and practices established within the original agreement and through the same practices established within the first four years of its implementation.
The government contends that the issue for it is the unforeseen numbers of members and applicants who have presented themselves for recognition. The government contends that this issue was only recently identified and could only now be dealt with at a time coinciding with the expiry of the agreement.
For the record, in 2009, almost four years ago, the number of members to the band stood at 10,000 and the number of applicants awaiting processing stood at 20,000. If the expectation was ever that only 10,000 to 12,000 members would be targeted as being eligible for the band, that notion and that forecast was proven totally inaccurate almost four years ago.
Looking back at 2009, with several years still remaining in the intake and registration process, any belief that the numbers would not grow the way they have is totally disingenuous on the part of anyone who would suggest it. This is the focus of my argument.
Today, the band stands with an estimated membership of 24,000 Mi'kmaq. As of March 21, the number of Mi'kmaq whose applications for enrolment have been left unprocessed stands at roughly 75,000, and 75,000 non-status Mi'kmaq, who applied in good faith and within the time frame established within the agreement for recognition under the Indian Act, were left in limbo.
Concern erupted only after the government made a statement to the media on November 4, 2012, that it was, just now, identifying problems with either the membership criteria or the enrolment process and that one or both may be subject to being altered after the fact.
There were 24,000 existing members left not knowing whether they would retain their status should any change occur within the rules and prospective members would also have to consider their loss. So far, 75,000 applications have been left unprocessed. The situation is very serious and answers have not been provided by the government.
Instead of any discussions or consultations with the applicants, the government has woven a story to the public that the number of members and applicants to the band is far more than what should have been expected or considered to be reasonable. The suggestion is that the problem is not really of the government's doing, it is the doing of the applicants who are applying for membership without the proper entitlement to do so.
Nothing could be further from the truth, and I will deconstruct the government's argument.
Allow me to establish the baseline for a discussion on this issue by informing the House of the agreement and its implementation with a particular view to the enrolment criteria.
To try to find an out of court resolution to a motion filed in 1989 in the Federal Court of Canada by a representative group of Newfoundland Mi'kmaq seeking to have their rights under section 91 of the Constitution Act recognized under law, the federal cabinet took a decision in 2002 to enter into a discussion with the Federation of Newfoundland Indians to determine if there was a basis for a negotiated recognition of the Mi'kmaq of Newfoundland. For decades before that, the federal government had engaged in what can only be described as a totally incoherent, inconsistent and politically directed handling of the settlement issue, which in retrospect serves to define the true meaning of the phrase “bad faith negotiations”.
For three decades, talks with the Mi'kmaq were initiated, stopped and then restarted according to the changing political moods of provincial premiers and federal cabinet ministers and caused the 1989 motion to be filed. As it proceeded clumsily through the courts, it was obstructed by motions filed by the Department of Justice simply to effect delays to the hearing of the case. After years of this type of behaviour, time had caught up with the federal government and its tactics. Knowing that its past conduct would likely be highly prejudicial against it in trial, the Crown eventually took a more reasoned approach to settlement. The Mi'kmaq put their court case in abeyance and after four years of hard work, a draft agreement in principle was reached between the FNI and the government's negotiators in 2006.
Under its terms, formal ratification of the agreement was required by both parties before the agreement could take effect. For the FNI, this meant a vote by the full membership of the entire organization. Needless to say, the agreement was dissected clause by clause, word by word, by both the federal cabinet and by the Federation of Newfoundland Indians and its membership during a sometimes intense but civil nine-month-long ratification debate that was held in church basements, community halls and kitchen tables all over, just as it was at the cabinet table.
On May 30, 2008, the Federation of Newfoundland Indians voted 90% in favour of ratifying the agreement. Nothing in the agreement was misunderstood or could be considered to be unclear to any party to the process, and in June of the same year the Government of Canada signed the order in council to ratify the agreement, moving it into implementation phase.
That agreement spelled out in very plain language what the enrolment criteria for the founding members in the future band would be. The agreement stated the following: to become a member, applicants must demonstrate that one of their ancestors must be of Canadian aboriginal descent.
It was an intentional decision by both parties to the agreement to stipulate in plain language that individuals would not have to show that they were necessarily of Mi'kmaq descent, just that they were of Canadian Indian ancestry by birth or adoption. This ancestry could then be established by means of their descendant being referred to in historical records as, and I quote directly from the agreement:
Micmac or variations thereof
Montaignais or variations thereof
Abenaki or variations thereof
savage or variations thereof
aboriginal or of aboriginal descent.
No blood quantum or measurement of the degree of generational separation from a person and their Indian descendant was required or relevant under the agreement.
These open criteria alone would obviously have alerted the Department of Indian Affairs to understand that a relatively high number of prospective applicants might likely be eligible; yet this is what the Department of Indian Affairs negotiated over a four-year period and obviously intended.
The next criteria for enrolment required that the applicants or their descendants be either resident of or connected to a pre-Confederation Newfoundland Mi'kmaq community as listed within the agreement in 1949.
For non-residents, the applicants would show an ongoing connection to that community. This was achieved, as according to the document, by their self-identifying as members of the Mi'kmaq group of Indians, by demonstrating an ongoing connection to a Newfoundland Mi'kmaq community by way of regular telephone calls or travel to the community and by establishing that the applicants continued to live the Mi'kmaq way of life.
This is spelled out in plain language within the agreement and within the application guides that were produced for applicants by the federal government and by the Federation of Newfoundland Indians authorities. For instance, according to the agreement at paragraph 25(B)(ii) of annex A, the latter requirement could be established by way of the following: by demonstrating “knowledge of Mi’kmaq customs and beliefs...or pursuit of traditional activities” within Federation of Newfoundland Indians members, by hunting and fishing. That is what the Federation of Newfoundland Indians and the enrolment committee found would satisfy that particular test.
I will also highlight a couple of points as to what the government knew it signed as part of its agreement with the Mi’kmaq. Paragraph 13 of annex A specifically states:
The applicant must provide evidence that he is of Canadian Indian Ancestry. There is no minimum blood quantum.
To reinforce that both the government and the FNI were fully aware of the criteria that had been agreed to, documents produced to assist applicants in preparing their applications, as well as information found on the Government of Canada's own website, specifically state that residency is not a requirement of enrolment as long as a connection to a Mi’kmaq community can be established and maintained. A connection is described in those documents as visits and communication. Membership in the Federation of Newfoundland Indians was also specifically described in literature and in web portals as being of value but optional. That point is further proved by the history of decisions on membership. Literally thousands of out-of-province applicants who are not members of the FNI have been already approved for membership in Qalipu, with federal representatives and FNI member representatives on the enrolment committee making those decisions for the last four years.
Furthermore, during the course of the agreement's implementation, the government members had several mechanisms available to them to address any problems that they foresaw with the integrity of the membership through the enrolment committee, which they did not exercise. This circumstance is highly material to the discussion from an administrative fairness perspective. Federal government members sat on the enrolment committee and assessed every application for the last four years. They knew every detail of every application and the number of approvals and applications received. They could have asserted a concern and their position on matters at that table. They did not.
The federal government members could have also appealed any decision of the enrolment committee that they did not like to a former justice of the Supreme Court of Newfoundland and Labrador who served as the appeals master for the process. As early as 2009, with three years left in the application intake process, and with the number of recognized members already standing at 10,000 and the number of applications awaiting review standing at 20,000 and growing on a day-to-day basis, not once did the government exercise this option. Only when the membership grew to 24,000, and only when 75,000 applications were awaiting processing, did it act.
If the original target was for a total membership of 8,000 to 12,000 members at the onset of the agreement, the government's inaction defies credibility. It should also be noted that the federal government had a unique authority within the process. It could veto any application on the basis of unfounded Indian ancestry. Further, the federal government had other means to identify and address issues. For instance, the federal government members could audit the enrolment process and that of the enrolment committee's decisions. They did so in 2010 and 2011, with no significant concerns being registered by the federal auditors. They audited to ensure the integrity of the process and the integrity of the enrolment. The audits found no problems.
My time is expiring, but I would like to conclude my first presentation to the House on this matter by saying the government cannot reasonably make any case that the situation surrounding the registration of the Mi'kmaq of Newfoundland is not anything but of their own hand. They established the rules, they enforced the rules for four years, and now they are suggesting that they do not like the rules that they established and they want to take them back.
The law does not work that way.