Canada Gazette, Part I, Volume 152, Number 20: Order Amending the Qalipu Mi'kmaq First Nation Band Order

May 19, 2018

Statutory authority
Qalipu Mi'kmaq First Nation Act

Sponsoring departments
Department of Indigenous Services Canada
Department of Indian Affairs and Northern Development

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) is required to update the existing Founding Members List of the Qalipu Mi'kmaq First Nation. This would be 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 proposed amendment, pursuant to the Qalipu Mi'kmaq First Nation Act, would replace the current 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 Parties on April 30, 2018.

The proposed amendment would add approximately 5 000 new individuals to the Qalipu Mi'kmaq First Nation as Founding Members and would also remove approximately 10 000 individuals from the original Founding Members List that was confirmed by the Order in 2011. If the proposed amendment is approved, individuals who will be removed from the Founding Members List could face a removal from the Indian Register and 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 who will be added to the Founding Members List and subsequently the Indian Register will become newly eligible for these registration-based federal benefit programs.

The proposed amendment would be 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 proposed 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 those individuals would be eligible for the benefits associated with having Indian status. Also, without the proposed 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 2002–03, 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 Bandfootnote1 (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 Members.

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; self-identification 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.

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 agreementfootnote2 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 Notices were received and 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). If the proposed amendment is approved and the Founding Members List is finalized, individuals who are not already Registered Indians would be eligible for registration under the Indian Act.

The final results of the Enrolment Process are as follows:
Outcome Total Non-Eligible Eligible
Current Founding Members 23 875 10 396
will be removed		 13 479
will remain
Non-Founding Members 76 806 71 710
were ineligible		 5 096
will be added
Total 100 681 82 106 18 575

Objectives

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

The individuals who are currently 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, were removed from the Founding Members List that was provided to the Department of Indian Affairs and Northern Development on April 30, 2018, and would lose their status as Founding Members of the Qalipu Mi'kmaq First Nation through this proposed amendment.

Description

The proposed amendment to the Qalipu Mi'kmaq First Nation Band Order of 2011 (SOR/2011-180) would recognize 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, and would allow the Indian Registrar to register those who are recognized as Founding Members as well as remove those who no longer meet the criteria for founding membership and 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, will not be published to protect the private information of individuals. Of note, the list of Founding Members, when finalized, will be shared with the Qalipu Mi'kmaq First Nation in compliance with the 2008 and 2013 Agreements.

The proposed amendment would only affect 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.

"One-for-One" Rule

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

Small business lens

The small business lens does not apply to the proposed 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 comprises 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 finalizing the Founding Members List.

Rationale

The proposed amendment to the Qalipu Mi'kmaq First Nation Band Order, if approved, would finalize 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 proposed amendment would ensure 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 would reflect the intention of both parties in the Qalipu Mi'kmaq 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 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.

There is a high degree of support from individuals who would maintain or gain founding membership and their Indian Status. Conversely, there is a high level of dissatisfaction from Founding Members who could lose their status and from individuals who were found to be ineligible for founding membership. All individuals have been informed of the status of their application and/or appeal, and whether they will be on the final Founding Members List for the Qalipu Mi'kmaq First Nation, and subsequently added to or removed from the Indian Register.

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 proposed amendment to the Qalipu Mi'kmaq First Nation Band Order would come into force on June 25, 2018, subject to approval from the Governor in Council. Subsequently, the Indian Registrar, who has the sole authority to amend the Indian Register, would update the Register as follows:

A final notification would also be sent to individuals to inform them of the finalization of the process should the proposed amendment be approved. There would be no implementation or enforcement costs associated with the proposed amendment. Although there may be higher or lower than anticipated costs associated with the unknown health status of the approximately 5 000 individuals who will become newly eligible for Registered Indian status, a reduction in federal program costs (that is, supplementary health benefits and post-secondary education funding) could be expected, as the number of individuals losing membership would be greater than the number of individuals gaining membership.

The proposed amendment to the Qalipu Mi'kmaq First Nation Band Order would officially complete the Qalipu Mi'kmaq band creation process. Descendants of Founding Members would be eligible for registration for Indian status under the existing registration provisions in the Indian Act.

Contact

Telephone:
1-800-561-2266
TTY:
1-800-465-7735
Email:
aadnc.qalipu-orderincouncil.aandc@canada.ca

PROPOSED REGULATORY TEXt

Notice is given that the Governor in Council, pursuant to section 3 of the Qalipu Mi'kmaq First Nation Actfootnotea, proposes to make the annexed Order Amending the Qalipu Mi'kmaq First Nation Band Order.

Interested persons may make representations concerning the proposed Order within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Nathalie Nepton, Executive Director, Indian Registration and Integrated Program Management, Department of Indian Affairs and Northern Development (email: aadnc.qalipu-orderincouncil.aandc@canada.ca).

Ottawa, May 10, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Order Amending the Qalipu Mi'kmaq First Nation Band Order

Amendments

1 Sections 2 and 3 of the Qalipu Mi'kmaq First Nation Band Orderfootnote3 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.