Thank you very much for the opportunity to be here, first of all, and for the invitation to make a submission.
My name is Anne Hart. I am a member of the Qalipu First Nation. I applied for my membership in 2011. I was granted membership and Indian status on January 26, 2012. I've also been a member of the Mi'Kmaq First Nations Assembly of Newfoundland since July 2013.
The Mi'Kmaq First Nations Assembly of Newfoundland opposes the enactment of Bill . While the Conservative government claims that this bill is necessary for the finalization of the Qalipu band list and to ensure the integrity of the band, it is simply a further attempt to treat the Mi'kmaq people of Newfoundland differently from other status Indians in Canada and to shield the federal government and the band from liability for the mismanagement of the band enrolment process.
The assembly was formed in May 2013 as a result of the concerns that applicants and band members had over the handling of the enrolment process and the evaluation of the membership applications. The assembly is a non-profit organization that advocates for the fair and equal treatment of all Newfoundland Mi'kmaq people and for the fair evaluation of all applications for Qalipu band membership.
The assembly has currently a membership of 8,500 people. It consists of three important groups: band members such as myself, who have received their band membership and Indian status; applicants whose applications have not yet been processed to date; and applicants whose applications for their band membership have been rejected.
The history of the struggle of the Newfoundland Mi'kmaq dates back to 1949, when the Premier of Newfoundland stated that there were no Indians in Newfoundland. For decades the Mi'kmaq people of Newfoundland had their existence denied and were prevented from accessing programs and services available to other first nations people in Canada.
In 1989 the Federation of Newfoundland Indians brought an action in Federal Court seeking legal recognition for the Mi'kmaq people in Newfoundland and a declaration that Canada was discriminating against the Mi'kmaq people of Newfoundland. Two further decades of negotiations led to the signing of an agreement with the Federation of Newfoundland Indians to recognize the Mi'kmaq people of Newfoundland and to create the Qalipu band. The agreement was signed in June 2008.
The agreement sets out the eligibility criteria for band membership. An individual is eligible for the enrolment as a founding member of the band if the individual is of Canadian Indian ancestry; was a member of the Newfoundland Mi'kmaq community or a descendant of such a person; self-identified as a Mi'kmaq on the date of recognition order; and is accepted as a member of the Mi'kmaq group of Indians of Newfoundland.
The parties received far more applications than originally anticipated. By the application deadline of November 30, 2012, the enrolment committee had received approximately 105,000 applications. It became clear that the enrolment committee would not be able to evaluate all of these applications during the prescribed time period, and much uncertainty arose as to the outstanding applications. It is important to note that some families had as many as 300 people applying.
In July 2013 a supplementary agreement was entered into between the Federation of Newfoundland Indians and the federal government. The supplementary agreement modified the application of the eligibility criteria in important ways that made it more difficult for applicants to meet the criteria.
The changes contained within the supplementary agreement were not ratified by the membership of the Federation of Newfoundland Indians like the agreement in principle presented in 2008.
This was a hardship for those members who applied after the formal recognition of the band and required the production of extensive additional documentation including proof of frequent visits to the Mi'kmaq communities in Newfoundland, communications with members of the Mi'kmaq group of Indians, telephone records, travel itineraries, and evidence that individuals maintained a Mi'kmaq way of life prior to 2008.
This is what brings us here today to discuss Bill
First, clause 3 of the bill allows the Governor in Council to amend the Qalipu band order to remove individuals from the band list therefore revoking that individual's membership and Indian status. There is no limitation on the Governor in Council's ability to exercise this power. He is not required to act on the advice of the enrolment committee. This is not acceptable and opens the process to abuse.
Additionally, this process removes the power of the Indian registrar to remove names from the Indian registry which is the process followed by other status Indians in Canada. By removing this power from the registrar, individuals whose names are removed from the Indian registration will not have access to the protest provision in the Indian Act which allows an individual to protest the removal of his or her name from the Indian registry without retaining legal counsel.
Clause 4 is similarly problematic in that it removes the legal right of an individual to sue the federal government, the band, or the council for the wrongs that he or she may have suffered as a result of the mismanagement of the enrolment process.
The provision shields the federal government, the band, and its councils from any liability for gross negligence, for failing to consult, for breaching its duties to the Mi'kmaq people of Newfoundland, and breaching the honour of the crown.
This clause prevents individuals from recovering damages for loss of entitlements, for life decisions made in reliance on their entitlement to band membership and Indian status, as well as any costs associated when preparing their membership application.
Clause 4 represents a denial of fundamental legal rights guaranteed to all citizens of this country. It removes the right of individuals who have suffered harm from suing for damages.
Bill C-25 should not be enacted into law.
The documentation now being requested from applicants in order to substantiate their applications poses impossible hurdles for most applicants. These applicants were not notified in a timely fashion that they would require to keep and produce extensive records to prove their self-identification, community acceptance, and participation in cultural activity. They are now being asked to produced phone records, credit card statements, travel itineraries, application forms, government documents, and records some five years after the fact.
To now shield the federal government, the Qalipu band and its council from any liability for the mismanagement of the Qalipu enrolment process would be a fundamental denial of justice to the applicants and members who may lose their Indian status.
It is the assembly's recommendation that Bill C-25 be opposed and not be enacted into law. Alternatively, clause 3 of the bill should be struck and the normal process under the Indian Act should be used for the removal of names from the Qalipu band list and the Indian register. This will ensure that existing band members have meaningful access to the protest provision in the Indian Act.
As a further alternative, and at a minimum, clause 3 of the bill should be amended to clearly outline the basis on which the Governor in Council may act to remove the name from the Qalipu band list. The wording of this clause should be revised to ensure that the Governor in Council cannot solely make the decision to remove individuals from the list.
Clause 4 should be struck in its entirety. Individuals who have been wronged by the mismanagement of the Qalipu enrolment process should have access to appropriate legal recourse. Alternatively, this clause should be revised to narrow the limitation of liability.
Thank you very much for allowing me to provide this information. I certainly will be open to questions.
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?