Mr. Speaker, I am sure that the members of the opposition will have plenty of time to debate this legislation, provided that the government calls it again. My understanding, however, is that there seems to be some interest in having this passed very quickly and without the necessary debate. As can be seen by the questions and debate with the minister so far, there is considerable interest in this question in the province of Newfoundland and Labrador.
While there might be interest, given the history of aboriginal matters in the province of Newfoundland and Labrador, to which the minister alluded and to which I alluded in my question and comment intervention, the reality is that Newfoundland's history with aboriginal peoples as a part of Canada's history and before is one that is subject to a great deal of historical debate and controversy. However, since Confederation, it has been under the legal regime of the Constitution of Canada and is the responsibility of the Government of Canada in terms of its fiduciary role with respect to aboriginal peoples and its constitutional responsibilities under section 92 of the Constitution Act.
The problem has been that aboriginal people in Newfoundland and Labrador did not get access to the same programs, services, and funding that were made available to other aboriginals in Canada. That has been a source of significant conflict and significant neglect. Historically speaking, a lot has been lost along the way in terms of advancement and the benefits to aboriginal people in Newfoundland and Labrador.
When we look at the chronology, even the one produced by Aboriginal Affairs and Northern Development Canada, we see huge gaps between mentioning 1949 as the time of Confederation and the next entry, some time in the 1970s, with the consideration of the Innu nation. It talks about the variety of studies and discussions regarding the application of the Indian Act to the Innu in Labrador, some 25 years later. It was initially agreed to by the Government of Canada that the Mi’kmaq of Conne River develop an application, and the recognition of the Conne River first nation was in 1984, 34 years after Confederation.
We have had a long period of neglect. I took an interest in this back in 1987, when I was first a member of Parliament, and had a paper commissioned, looking into the terms of union. The resulting paper was called Pencilled Out, because during the terms of union negotiations between the Government of Canada and the representatives of Newfoundland and Labrador, there was series of draft agreements, which included, up until the second or third versions, a provision for Indians—as they were then universally known—in Newfoundland and Labrador, but at later stages of negotiations that was all removed.
It was removed for various reasons that have been given historically. One suggestion was that they would lose the right to vote if they became recognized under the Indian Act. There were other reasons given for that historically, but the fact of the matter is that they were excluded from the benefits and provision of services, including non-medicare benefits that were available everywhere else in Canada, such as special health benefits, drug programs, important access to education, and other programs that were available throughout Canada to everyone who qualified as status Indians.
This agreement, this Qalipu Mi'kmaq First Nation act, is an attempt by the Mi'kmaq to retrieve or achieve something that they should have been entitled to, going back to 1949. It is imperfect because it deals with individuals who are still a part of the communities that traditionally had Mi'kmaq populations. The minister says 67, but I count 65 in the schedule, unless it has been amended. These 65 populations that are still associated would have rights under this band.
They have an enrolment process that, as is widely known, has resulted in people recognizing that at long last there will be an opportunity for the Mi'kmaq of Newfoundland and Labrador to be recognized generally for their status within Canada as aboriginal people.
The minister is quite correct. This legislation is not about the big picture. It is not about the enrolment rules as such and it is not about the qualifications.
Those agreements were made by the Federation of Newfoundland Indians on behalf of the communities and memberships in the various bands throughout Newfoundland that were associated with the Mi'kmaq people and the communities in which they resided. It was ratified by the people who participated in the vote, by some 90%, which is a fair indication that, with respect to the communities that have been identified here, there is a wide degree of acceptance as to what they hope to achieve by the creation of the Qalipu Mi'kmaq First Nation Band.
That part is the historical agreement that was made ultimately in 2008, with the modifications in 2013. We are talking about what the effect of this legislation would be on this process and what the effect would be on those who may be excluded by this process. We have some concerns about how this will be interpreted.
The minister commented that people would still have access to the courts but they would not be able to get damages. The member for Humber—St. Barbe—Baie Verte has a more assertive understanding of what denying people access to the courts really means. That needs to be fully explored as this legislation proceeds. We would expect significant and proper and appropriate legal representation and expertise ought to be applied to this legislation to see whether it would do anything more than prevent someone from getting retroactive damages for not being recognized then as opposed to now, or whether it would extinguish any right or prevent someone from having access to the courts.
The minister indicated that access to the courts would be retained for the purpose of a declaration, that someone in the Qalipu first nation band should be covered by the agreements and should have access to the benefits. If that is indeed the case, then we would want to have expert opinion on that from people with knowledge of the law and knowledge of agreements like this and how similar types of legislation treat this. Are some special rules being created here to prevent individuals who may be wrongfully excluded from the band to get a proper adjudication from the court for getting the redress they need? I would certainly want to have clarification of that.
With respect to the issue of enrolment itself, this legislation would not change the criteria for enrolment. The application of the criteria and the documentation necessary and the process to be undertaken to do that seems to have been a misjudgment by the people on both sides who negotiated this agreement. The Federation of Newfoundland Indians is represented by their leadership, including Chief Brendan Sheppard. The federation set up a procedure that it thought would be fair, equitable, and adequate to assess and deal with the applications. Clearly, it was not. I do not think anybody anticipated that the number of people who applied would be in the tens of thousands, three or four times more than what was anticipated.
The timelines of the procedure, the committees that were set up, the time that was given in the agreement for processing applications, for making decisions, for issuing the applications, was totally and woefully inadequate, to the point that people were going to be denied the ability to participate in the Qalipu Mi'kmaq First Nation Band because their application would not be processed in the time that was set out in the agreement and in all of the legislation.
Clearly something had to be done to modify the enrolment process and the assessment of that.
As the minister pointed out, the new regime, with two members of the Federation of Newfoundland Indians, two members representing the Government of Canada and an independent third party, is a process that has been agreed upon. They have timelines. I have not heard any complaints about the adequacy of the time that people have had to apply, although there are still people, I understand, who are learning about this process, for one reason or another, and still feel that they have not had an opportunity to be considered. Some may say that is because they have not self-identified as a Mi'kmaq and they have not participated and been accepted by these groups as a member, something to which we should all give consideration.
The minister said it is not about ancestry, but indeed it is about ancestry. One of the criteria required, among other requirements, is that an individual self-identify as a member of the Mi'kmaq group of Indians of Newfoundland and be accepted as a member of the Mi'kmaq group of Indians of Newfoundland.
This is an agreement in relation to a subset of people who are aboriginal Mi'kmaq of Newfoundland and Labrador. This subset of people continues to self-identify with the Mi'kmaq group of Indians and is accepted by them. That implies an association with an existing group, as opposed to someone who has left.
It would be grossly unfair, arbitrary, and unjust to those people I have referred to, such as those who may have been removed from their homes for one reason or another. It could have been for stereotyped reasons of government officials. It could have been the practices of child welfare organizations. It could have been for legitimate reasons of child protection that removed a child from the particular home, circumstance, or situation, which ended up in that individual being raised elsewhere without knowledge of their ancestry and their identity as an aboriginal. That is something they may have learned many years later as an adult. It would be grossly unfair for them to not be considered as having an opportunity to identify with their ancestry, their history, their culture, their true identity as an aboriginal person.
I do not see any real provision for that here, and it needs to be addressed and redressed. There are significant problems with that from a moral, legal, and entitlement point of view, and it does need to be addressed.
The minister made some comments, which I find encouraging, although I do not see them in the legislation. I do not see them in any of the agreements that his comments will be taken up by individuals concerned about the fact that they have been potentially left out for the future with the Mi'kmaq group of Indians as under the Qalipu first nations band.
Regardless of the criteria, there had to be a process. I do not think anybody would disagree with that. If we lay down the criteria, someone has to decide whether an individual is in that criteria.
Yes, I could agree that it is the failure of the Government of Canada to ensure that there is a process that is available and that will work, but it is also fair to say that neither the Federation of Newfoundland Indians nor the Government of Canada anticipated the numbers of people who wished to be considered members of the Qalipu first nations band.
I will not denigrate their desire, which the minister seemed to do by suggesting that they showed up at the last minute, claiming to be of aboriginal ancestry. Given the history of Newfoundland and Labrador and the history of neglect by the federal government of its responsibilities from the time of Confederation on, it is not surprising that there are people the government wanted to assimilate, wanted to ignore, refused, and failed to provided the services being given everywhere across country. For example, the non-insured health services, the Innu and Inuit of Labrador were denied access to non-insured health benefits that every status Indian in Canada had access to as long as they existed and were recognized.
It is a shameful history. I brought attention to that when I was first a member of Parliament in 1987, because I knew of the history of negotiations about Confederation. I remember the premier of Newfoundland, Joseph Smallwood, saying that we did not have any Indians in Newfoundland and Labrador. Well, they did not have any on paper because they refused to recognize their existence. Yet here we have the Innu of Labrador, the Mi'kmaq of Newfoundland, and now 100,000 people saying that they are of aboriginal ancestry and proud of it, and they want to have that recognized. I am not saying every single one of them meets whatever criteria are laid out, clearly they probably do not, but there has to be a process. It has to be fair, equitable, and it has to come to a conclusion.
To be fair, there is a process and a process of appeal so that if people are denied because they do not meet the criteria, they do have the right of appeal. There is a time for appeal and the process would go on for some longer period before final decisions are made.
We want to know what this legislation is all about. Is it necessary to have this legislation to achieve the creation of this band? Yes, it is controversial, as I mentioned in my remarks to the minister—what is it with this “landless” band”? Sixty-five communities that are identified as being Mi'kmaq communities in Newfoundland and Labrador are going to have access to some services and programs, but what about a land-based or resource on which they lived for hundreds of years? There is no role for that.
I suspect that was perhaps the only way they believe that they could achieve any recognition by the Government of Canada of their rights. Land claims negotiations in Canada are glacial. The government seems to keep hoping that aboriginal people and their claims will go away. I have not read the book, but I recently saw a quotation from Thomas King's book, The Inconvenient Indian. He has come to the conclusion that the whole history of aboriginal rights in North America is about one thing: land. It is about land that he calls the white man wanted, and that is the major thrust of any policy toward aboriginals in North America.
Here we have a landless band, which says something about what was trying to be achieved here certainly by the Government of Canada. The minister says it was the choice of the Mi'kmaq. I doubt very much that the Mi'kmaq said, “We do not really want any land, we do not need a land base for hunting, fishing, forestry, and looking after our families”. For centuries they had lived on the land in these communities as aboriginal people. They were stewards of that land.
There are a lot of complexities. There is a lot of negative history associated with this whole process and we do not want to see it repeated in a process that is not fair. If it takes away rights, if it denies people access to the courts to establish those rights, then we have a significant problem with that. We want to ensure that when the bill is studied, it gets full consideration by experts so that nothing is done that is going to damage the future possibilities for the aboriginal people of Newfoundland and Labrador, particularly the Mi'kmaq, but we do want to see the Qalipu band get the recognition and the services, programs, and the future that it deserves.
