Order Amending the Qalipu Mi’kmaq First Nation Band Order: SOR/2018-139

Canada Gazette, Part II, Volume 152, Number 14

Registration

June 25, 2018

QALIPU MI’KMAQ FIRST NATION ACT

P.C. 2018-871 June 22, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 3 of the Qalipu Mi’kmaq First Nation Actfootnote a, makes the annexed Order Amending the Qalipu Mi’kmaq First Nation Band Order.

Order Amending the Qalipu Mi’kmaq First Nation Band Order

Amendments

1 Sections 2 and 3 of the Qalipu Mi’kmaq First Nation Band Orderfootnote 1 are replaced by the following:

2 The Qalipu Mi’kmaq First Nation is the body of Indians consisting of the persons identified on the list of founding members provided by the Enrolment Committee to the Government of Canada and to the Federation of Newfoundland Indians on April 30, 2018.

2 The schedule to the Order is repealed.

Coming into Force

3 This Order comes into force on June 25, 2018, or, if it is registered after that day, it comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

An amendment to the Qalipu Mi’kmaq First Nation Band Order (the Order) was required to update the previous Founding Members List of the Qalipu Mi’kmaq First Nation. This is based on the outcome of extensive enrolment and appeal processes that were agreed to by the Government of Canada and the Federation of Newfoundland Indians.

The amendment, pursuant to the Qalipu Mi’kmaq First Nation Act, replaces the previous Founding Members List that was confirmed through the Order in 2011 (SOR/2011-180) declaring the Qalipu Mi’kmaq First Nation Band as a Band within the meaning of the Indian Act with one that was presented by the Enrolment Committee to the Government of Canada and the Federation of Newfoundland Indians (the “Parties”) on April 30, 2018. The amendment was recommended by the Minister of Indian Affairs and Northern Development to the Governor in Council in June 2018 for final approval and coming into force.

The amendment adds 5 096 new individuals to the Qalipu Mi’kmaq First Nation as Founding Members and also removes 10 398 individuals from the original Founding Members List that was confirmed by the Order in 2011. Individuals who are removed from the Founding Members List will subsequently be removed from the Indian Register on August 31, 2018 (with the exception of two individuals who, since the 2011 Order, have decided to seek registration entitlement as part of another band separate from the Qalipu Enrolment Process), and will no longer be eligible for registration-based federal benefit programs (including supplementary health benefits and post-secondary education benefits), unless they are eligible for registration as a child (even an adult child) of a Founding Member. In addition, individuals added to the Founding Members List and subsequently to the Indian Register will become newly eligible for these registration-based federal benefit programs during the summer of 2018.

The amendment is in accordance with the Qalipu Mi’kmaq First Nation Act, which grants the Governor in Council the authority to add individuals to the Founding Members List or remove them from that List. Without the amendment, the names of the individuals who were identified as Founding Members under the 2011 Order and who subsequently gained Indian status, but who were later found to be ineligible for founding membership, would continue to be on the Indian Register and would be eligible for the benefits associated with having Indian status. Also, without the amendment, those who were found eligible through the Enrolment Process would not be confirmed as Founding Members, and therefore would not be added to the Indian Register and would not be eligible for the benefits associated with having Indian status.

Background

The Federation of Newfoundland Indians was originally founded in 1972 as the “Native Association of Newfoundland and Labrador” in order to seek recognition of the Mi’kmaq people of Newfoundland as Indians under the Indian Act. After several years of discussions, and after the creation of the Miawpukek Band under the Indian Act in 1984, the Federation of Newfoundland Indians launched a Federal Court action in 1989 to seek recognition.

By 2002–2003, out-of-court preliminary negotiations began, and by 2006, the Federation of Newfoundland Indians and the Government of Canada reached an Agreement in Principle for the creation of a band with no reserve lands for the Mi’kmaq of Newfoundland. In June 2008, the Agreement for the Recognition of the Qalipu Mi’kmaq Bandfootnote 2 (the 2008 Agreement), jointly ratified and signed by the Government of Canada and the Federation of Newfoundland Indians, established the process for the creation of the band and the enrolment of its Founding Member.

Pursuant to the 2008 Agreement, a two-stage Enrolment Process ran from December 1, 2008, to November 30, 2012. Individual applications were assessed by an Enrolment Committee comprised of representatives from the Government of Canada, the Federation of Newfoundland Indians as well as an independent Chair selected by mutual agreement of both parties. Applications were assessed on the following enrolment criteria: Canadian Indian ancestry; descent from a member of a Newfoundland Pre-Confederation Mi’kmaq Community; selfidentification as a member of the Mi’kmaq Group of Indians of Newfoundland; and acceptance by the Mi’kmaq Group of Indians of Newfoundland as a member of the group. The Mi’kmaq Group of Indians of Newfoundland refers to the Mi’kmaq groups of Indians on the island of Newfoundland, including but not limited to those situated at the various locations listed in Annex B to the 2008 Agreement (a list of current Mi’kmaq communities).

In September 2011, the Qalipu Mi’kmaq First Nation was created by the Order (SOR/2011-180), also referred to as the “Recognition Order,” with 23 877 members registered as Founding Members. This number represents all eligible applicants out of the more than 25 000 applications received prior to November 30, 2009. By the November 30, 2012, deadline for applying, more than 104 000 applications for founding membership had been received.footnote 3

Given the large number of applicants for founding membership as well as issues that emerged in the implementation with regard to the requirements and the types of evidence that could be provided in the application process, the Government of Canada and the Federation of Newfoundland Indians entered into and ratified a supplemental agreementfootnote 4 in July 2013 as per section 2.15 of the 2008 Agreement. The 2013 Supplemental Agreement clarified the requirements of the 2008 Agreement and established a point system to provide greater precision to the types of evidence that the Enrolment Committee could consider when assessing an application and to ensure that all applicants would be treated fairly and equitably.

The 2013 Supplemental Agreement did not change the enrolment criteria; rather, it clarified the requirements for enrolment, clarified the documentation requirements to support the applications for founding membership, and extended the 2008 Agreement timelines.

The 2013 Supplemental Agreement also set out a review of all applications (including those from the 23 877 applicants who had been granted founding membership and who were confirmed through the 2011 Order) to ensure that all applicants met all the criteria of Self-Identification as a member of the Mi’kmaq Group of Indians of Newfoundland, Canadian Indian ancestry and proof of group acceptance by the Mi’kmaq Group of Indians of Newfoundland.

To meet the group acceptance criteria, applicants who, on September 22, 2011, were not residing in one of the locations of the Mi’kmaq Group of Indians of Newfoundland were required to demonstrate, through the provision of documentary proof, that on a regular basis over a reasonably extended period of time, they made frequent visits to and/or communicated with members of the Mi’kmaq Group of Indians of Newfoundland and participated in the group’s ceremonial, religious, traditional or cultural activities. Applicants were notified that, in considering whether they have demonstrated group acceptance, primary consideration would be given to documentation from the five-year period immediately preceding the date of application. These activities must have taken place prior to September 22, 2011.

All applications were assessed by an independent Enrolment Committee as per the 2013 Supplemental Agreement, equally represented by the Federation of Newfoundland Indians and the Government of Canada, and led by an independent Chairperson. Decisions made by the Enrolment Committee were based on evidence submitted by the applicants and assessed against the criteria established in accordance with the 2008 Agreement and the 2013 Supplemental Agreement. As evidence of self-identification and acceptance by the group may differ from one individual to another, it is possible that different decisions were rendered amongst family members.

On January 31, 2017, all applicants were notified of the decision that had been made by the Enrolment Committee regarding their application. Subsequently, 13 166 Appeal files were reviewed by Appeal Masters from McInnes Cooper, a well-established firm in the maritime legal community which was selected on mutual consent of the Government of Canada and the Federation of Newfoundland Indians and operated as a neutral third party. The Appeal Masters, when reviewing each appeal notice, considered all records that were used by the Enrolment Committee when reaching its decision, along with the reasons applicants believed errors were made in the consideration of their applications and the reasons why they felt the documentation submitted helped demonstrate that they met all requirements that were necessary to become a Founding Member of the Qalipu Mi’kmaq First Nation. Between October 2017 and February 2018, letters on decisions rendered by the Appeal Masters were mailed out on a monthly basis, as part of the Appeal Process that concluded on February 28, 2018.

All major deadlines (application and appeal) for founding membership in the Enrolment Process have passed, as per the 2008 Agreement and the 2013 Supplemental Agreement (the 2008 and 2013 Agreements). The amendment is approved, and the Founding Members List is updated and includes a total of 18 575 individuals. Individuals who are not already Registered Indians will be eligible for registration under the Indian Act.

The final results of the Enrolment Process are as follows:

 

Eligible

Non-Eligible

Founding membership based on the 2011 Order

13 479

10 396

Other applicants through the Enrolment Process

5 096

71 711

Outcome

18 575

82 107

Objectives

The objective of the amendment is to establish a Founding Members List for the Qalipu Mi’kmaq First Nation. This list has been provided to the Parties by the Enrolment Committee on April 30, 2018, as a result of extensive enrolment and appeal processes that were agreed to by the Government of Canada and the Federation of Newfoundland Indians. The updated Founding Members List has now been approved by the Governor in Council on the recommendation of the Minister of Indian Affairs and Northern Development.

The individuals who are newly eligible for founding membership will be added to the Indian Register on July 31, 2018, and individuals who no longer meet the criteria for founding membership will be removed from the Indian Register on August 31, 2018, unless they are eligible for registration as a child of a Founding Member under subsection 6(2) or paragraph 6(1)(f) of the Indian Act.

The individuals who were on the Founding Members List subject to the 2008 Agreement and the 2011 Order, but who were subsequently denied founding membership through the enrolment and appeal processes under the 2013 Supplemental Agreement, do not appear on the Founding Members List that was provided to the Department of Indian Affairs and Northern Development and the Federation of Newfoundland Indians on April 30, 2018, and are consequently losing their Indian status as Founding Members of the Qalipu Mi’kmaq First Nation as a result of this regulatory amendment, unless they are eligible to be registered as a child (even an adult child) of a Founding Member.

Description

The amendment to the Qalipu Mi’kmaq First Nation Band Order of 2011 (SOR/2011-180) recognizes the Qalipu Mi’kmaq First Nation as the body of Indians who are on the Founding Members List that was provided by the Enrolment Committee to the Parties on April 30, 2018. Now that the amendment is approved by the Governor in Council, it allows the Indian Registrar to register those who are recognized as Founding Members as well as remove those from the Indian Register who no longer meet the criteria for founding membership and who are not eligible for registration as a child (even an adult child) of a Founding Member. The Founding Members List, which includes the name as well as birthdate of individuals, is not published to protect the private information of individuals. The amendment only affects those who applied for founding membership in the Qalipu Mi’kmaq First Nation under the 2008 and 2013 Agreements between the Government of Canada and the Federation of Newfoundland Indians as well as their descendants.

“One-for-One” Rule

The “One-for-One” Rule does not apply to the amendment, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to the amendment, as there are no costs to small business.

Consultation

Negotiations between the Government of Canada and the Federation of Newfoundland Indians for the creation of the Qalipu Mi’kmaq First Nation have been underway since 2002, leading to the ratification of the 2008 Agreement and the subsequent 2013 Supplemental Agreement.

Since the beginning of the Enrolment Process, two mass mail outs took place (November 6, 2013, and January 31, 2017), which provided applicants with information on the application and enrolment processes and the results of their individual assessments. The January 31, 2017, mail-out provided individual notifications to all applicants regarding the outcome of the Enrolment Committee’s review of their file and, if applicable, provided the opportunity to appeal the decision.

In addition to direct and individual communications with the applicants, public notices in newspapers, social media advertisements and joint press releases between the Government of Canada and the Federation of Newfoundland Indians were issued to mark concrete milestones. These included the start of the review process, the appointment of the Enrolment Committee Chair in 2013, and the appointment of the Chief Appeal Master in 2015. A toll-free number was set up by the Government of Canada early in the Enrolment Process so applicants could obtain information on the application and enrolment processes.

The Government’s website (www.aadnc-aandc.gc.ca) and the Qalipu Mi’kmaq First Nation website (www.qalipu.ca) were updated throughout the various phases of the Enrolment Process.

It is also important to note that throughout the process, meetings of the Qalipu Implementation Committee, which is comprised of representatives from the Government of Canada and the Federation of Newfoundland Indians, took place to discuss a variety of matters relating to the Enrolment Process to ensure that progress was made on the implementation of the 2008 and 2013 Agreements.

These consultations and communications ensured that all applicants and interested and affected parties had timely access to important and relevant information on the application and enrolment processes, and on the timelines for updating the Founding Members List.

The proposed amendment to the Qalipu Mi’kmaq First Nation Band Order was prepublished in Part I of the Canada Gazette on May 19, 2018, for a public consultation period of 15 days. During this period, the Government of Canada received 227 comments, of which 2 were not directly related to the proposed amendment (i.e. requests for information on individual files) and were redirected in order to be actioned having no impact on the proposed amendment.

Two comments questioned the impact of the recent Federal Court Decision in the Wells matter on proceeding with the proposed Order with a target effective date of June 25, 2018. The Government of Canada confirmed that the Federal Court’s recent ruling in the Wells matter does not impact those who are being removed from the Founding Members List. For this reason, it does not impact the proposed amendment.

One of these individuals also questioned the Government’s decision not to publish the names and birth dates of the Founding Members in the body of the proposed Order. In its response, the Department of Indian Affairs and Northern Development reaffirmed that the decision not to publish the names and birthdates of individuals was made to protect their personal information.

Also, a generic letter was submitted by 221 individuals highlighting concerns with the credibility of those making decisions on behalf of the membership; concerns with moving forward with the proposed amendment while litigation is before the courts; and implications of removing individuals from the Band list in advance of the Qalipu Mi’kmaq First Nation’s general election in October 2018. It was confirmed by the Department of Indian Affairs and Northern Development that the Government of Canada will provide an updated Band membership (Founding Members and their descendants registered as Indians under the Indian Act) list to the Qalipu Mi’kmaq First Nation for their use in the upcoming elections upon Governor in Council approval of the proposed amendment. While other litigation is still before the courts, as decisions have not been rendered, the Government of Canada is committed to ensuring timely registration for those who have been found eligible for Registered Indian status through the Qalipu Mi’kmaq First Nation Enrolment Process. None of the comments received had an impact on the proposed amendment. Individual responses were provided to address concerns raised in this letter.

While the majority of comments received were in opposition to the proposed amendment, the Department of Indian Affairs and Northern Development also received two comments of support as the amendment provides the 5 096 individuals who will be added to the Founding Members List and subsequently the Indian Register the recognition they rightly deserve.

Rationale

The amendment to the Qalipu Mi’kmaq First Nation Band Order, updates the Founding Members List, as set out in the 2008 Agreement and the 2013 Supplemental Agreement entered into by the Government of Canada and the Federation of Newfoundland Indians for the recognition of the Qalipu Mi’kmaq First Nation.

The amendment ensures that only those who qualified through the rigorous enrolment and appeal processes are Founding Members of the Qalipu Mi’kmaq First Nation and are entitled to Indian status and to be registered under the Indian Act. This reflects the intention of the Parties in the Qalipu Mi’kmaq First Nation band creation agreements of 2008 and 2013.

The enrolment and appeal processes ensured that all applicants were treated fairly and equitably based on the criteria that were jointly established by the Government of Canada and the Federation of Newfoundland Indians to determine eligibility for founding membership in the Qalipu Mi’kmaq First Nation. Both the Government of Canada and the Federation of Newfoundland Indians agreed to implement the measures contained in the 2013 Supplemental Agreement to ensure that the eligibility decisions made by the Enrolment Committee reflect the original intent of the Parties to grant founding membership in the Qalipu Mi’kmaq First Nation primarily to persons living in or around the Newfoundland Mi’kmaq communities named in the 2008 Agreement. While individuals living outside of these communities could also become members, the intent of the Parties was that non-residents would be required to have maintained a strong cultural connection with a Newfoundland Mi’kmaq community, including a sustained and active involvement in the community despite their absence.

While there is some support from individuals who maintained or gained founding membership and their Indian status as a result of this amendment, there is a high level of dissatisfaction from Founding Members who lost their status as a result of this amendment and from individuals who were found to be ineligible for founding membership. All individuals were informed of the status of their application and/or appeal, and whether they were on the updated Founding Members List for the Qalipu Mi’kmaq First Nation, and whether they will be subsequently added to or removed from the Indian Register.

The Government of Canada and the Federation of Newfoundland Indians have worked collaboratively throughout the Enrolment Process to ensure a fair and equitable process, upholding the integrity of the Qalipu Mi’kmaq First Nation founding membership. The Government of Canada remains committed to renewing the nation-to-nation relationship with Indigenous Peoples based on recognition of rights, respect, cooperation and partnership. A non-regulatory option was not considered, because the order that established the Founding Members List may only be changed by a regulatory amendment.

Implementation, enforcement and service standards

The coming into force of the amendment to the Qalipu Mi’kmaq First Nation Band Order was June 25, 2018. Subsequently, the Indian Registrar, who has the sole authority to amend the Indian Register, will update the Register as follows:

The implementation of the Founding Members List will be done in two parts. On July 31, 2018, a notification will be sent to the 5 096 individuals who are eligible for Indian status as a result of this amendment. This notification will include relevant information regarding the next steps (application to the secure certificate of Indian status, access to federal program benefits associated with having Indian status). On August 31, 2018, a notification will be sent to individuals who remain eligible for registration as a child (including an adult child) of a Founding Member. Also on August 31, 2018, a final notice of removal from the Indian Register will be sent to those who will lose Indian status.

There are no implementation or enforcement costs associated with the amendment. Although there may be higher or lower than anticipated costs associated with the unknown health status of the 5 096 individuals who are newly eligible for Registered Indian status, a reduction in federal program costs (that is, supplementary health benefits and post-secondary education funding) is expected, as the number of individuals losing Indian status is greater than the number of individuals gaining Indian status.

Contact

Telephone: 1-800-561-2266
TTY: 1-800-465-7735