Canada Gazette, Part I, Volume 155, Number 6: Order Amending the Qalipu Mi'kmaq First Nation Band Order
February 6, 2021
Qalipu Mi'kmaq First Nation Act
Department of Indigenous Services
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
The Standing Joint Committee for the Scrutiny of Regulations has identified concerns with the repeal of the schedule to the Qalipu Mi'kmaq First Nation Band Order that came into force on June 25, 2018. Additionally, the Qalipu Mi'kmaq First Nation founding members list needs to be updated to include 302 newly eligible individuals.
When Newfoundland joined Confederation in 1949, there were no special provisions for the new province's Indigenous groups. The Terms of Union, which determined how Newfoundland and Labrador would operate as a province, did not mention Indigenous peoples nor did it clarify their status within the country. The First Nations of Newfoundland were therefore not recognized as “Indians” under the Indian Act.
The Federation of Newfoundland Indians (FNI) 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 FNI launched a Federal Court action in 1989 to seek recognition. By 2002 – 2003, out-of-court preliminary negotiations began and, by 2006, the FNI and Canada reached an Agreement in Principle for the creation of a band with no reserve lands for the Mi'kmaq of Newfoundland. The Agreement for the Recognition of the Qalipu Mi'kmaq Band (the 2008 Agreement) was ratified and signed by Canada and FNI in June 2008. It established the process for the creation of the band and the enrolment of its founding members. At the time of ratification, the band population was projected to be about 8 700 to 12 000 individuals.
Pursuant to the 2008 Agreement, a two-stage enrolment process ran from December 1, 2008, to November 30, 2012. Applications were assessed by an Enrolment Committee, consisting of representatives from the Government of Canada, the FNI, as well as an independent Chair selected by mutual agreement of both parties. Pursuant to the 2008 Agreement, applicants were assessed on the following enrolment criteria: Canadian Indian ancestry, descent from a member of a 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. Mi'kmaq Group of Indians of Newfoundland refers collectively to the Mi'kmaq groups of Indians on the Island of Newfoundland, including, but not limited to, those situated at the various locations listed on Annex B to the 2008 Agreement (a list of current Mi'kmaq communities). The term also includes the nine local or community-based affiliates of the FNI.
When the first stage of the enrolment process concluded, close to 30 000 applications for founding membership were received. In September 2011, the Qalipu Mi'kmaq First Nation Band Order (the Recognition Order) created the Qalipu Mi'kmaq First Nation, and presented a founding members list, which included the names and birthdates of 23 877 individuals who were subsequently registered as Indians under the Indian Act. This number represents applications from individuals received prior to November 30, 2009, who had been determined to be eligible in the first stage of the application process.
When the second stage of enrolment concluded on November 30, 2012, over 104 000 applications had been received in total across both the initial and second stages of the enrolment process. 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 FNI entered into a Supplemental Agreement in July 2013. The Supplemental Agreement set out a review of all applications for membership submitted between December 1, 2008, and November 30, 2012, except those previously rejected, to ensure that applicants meet the criteria for eligibility set out in the 2008 Agreement. This included the applications of all those who had gained Indian status as members of the Qalipu Mi'kmaq First Nation through the first stage of enrolment.
Specifically, the Supplemental Agreement
- Extended the timelines for review of the applications;
- Ensured that all applications received during all phases of the enrolment process, except those previously rejected, would be assessed or reassessed;
- Provided that all those whose applications were assessed or reassessed would receive written notification of the opportunity to provide additional documentation, if necessary;
- Provided clarity regarding the assessment of an applicant's self-identification as a member of the Mi'kmaq Group of Indians of Newfoundland; and
- Provided guidance related to an individual's acceptance by the Mi'kmaq communities of Newfoundland, particularly as it relates to individuals not residing in the communities of the Mi'kmaq Group of Indians of Newfoundland.
A point system was also developed as a result of the Supplemental Agreement to provide greater precision to the types of evidence that the Enrolment Committee could consider when assessing an application under the criterion of group acceptance. This was done to ensure that there was a fair and objective way of measuring whether an individual who was not a resident in one of the Mi'kmaq communities of Newfoundland had a “current and substantial connection with the Mi'kmaq Group of Indians of Newfoundland,” and that all applicants would be treated in a fair and equitable manner.
As a result of this review, some individuals who were previously accepted as members of the Qalipu Mi'kmaq First Nation had their founding memberships overturned, and some members who were second stage applicants were not accepted. On January 31, 2017, applicants were notified of the decisions regarding their application. Applicants who had invalid applications or failed to demonstrate self-identification before the date of the Recognition Order (September 22, 2011) did not have the right to appeal.
All appeal notices were processed independently by Appeal Masters hired by McInnes Cooper, a well-established and well-known firm in the legal community in the Atlantic provinces. The firm, 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.
Pursuant to the Qalipu Mi'kmaq First Nation Act, which provides that the Governor in Council may amend the Recognition Order, an Order in Council (SOR/2018-139) was approved on June 25, 2018. The Order in Council had two purposes: repealing the schedule that contained the founding members list from the 2011 Recognition Order; and replacing it with the following, “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.”
The decision to incorporate by reference a founding members list was made to protect personal information in response to concerns over identifying individuals who would lose membership.
The updated founding members list comprised
- 18 575 founding members, of which
- 13 479 who were on the 2011 list and remained eligible; and
- 5 096 who were newly eligible for founding membership and also received Indian status.
Other individuals were removed.
- 10 396 individuals were removed from the 2011 founding members list, of which
- Approximately 7 300 individuals lost their Indian status; and
- Approximately 2 700 remained eligible for registration under a different category of the Indian Act.
On May 8, 2018, the Federal Court rendered a decision in Wells et al. v. Canada (Attorney General) 2018 FC 483 (the Wells decision), which challenged the denial of applications for founding membership in the Qalipu Mi'kmaq First Nation based on the self-identification criterion of the enrolment process. The Federal Court determined that the requirement to provide self-identification evidence that predates the 2008 Agreement was not reasonable and that applicants should be provided with the right to appeal the decision made on their file.
In July 2018, the Standing Joint Committee for the Scrutiny of Regulations wrote to the Department expressing concerns that the June 25, 2018, amendment removed the schedule containing the founding members list because the Qalipu Mi'kmaq First Nation Act provides that names are to be added to, or removed from, the schedule of the Qalipu Mi'kmaq First Nation Band Order.
As part of the implementation of the Wells Federal Court decision, a mail-out took place on January 31, 2019, to individuals who were denied founding membership in 2017 based on the original self-identification criterion. Individuals were provided with the opportunity to request a reassessment by the Enrolment Committee by either submitting additional self-identification documents dated on or before September 22, 2011, the date of the Recognition Order, or use the documentation that was previously submitted. Approximately 7 200 requests for reassessment were submitted.
A mail-out of decision letters took place on July 13, 2020. Individuals who received a denial letter had until September 14, 2020, to file an appeal. A total of 6 157 appeal notices were received and will once again be processed by independent Appeal Masters. Any individuals who are successful during the appeals process will be addressed in a follow-up amendment to the Qalipu Mi'kmaq First Nation Band Order.
After having been reassessed successfully on self-identification as well as the remaining criteria of group acceptance and ancestry, 296 individuals are now eligible for founding membership. Another 6 individuals can be added to the updated founding members list following administrative reviews of their files, as well as the settlement of litigation.
- To recognize the newly eligible Qalipu Mi'kmaq First Nation founding members; and
- To address concerns raised by the Standing Joint Committee for the Scrutiny of Regulations.
The proposed Order Amending the Qalipu Mi'kmaq First Nation Band Order would amend the Recognition Order to
- specify that the members of the Qalipu Mi'kmaq First Nation are the individuals identified in the schedule to the Order; and
- add a schedule that indicates that founding members of the Qalipu Mi'kmaq First Nation are those individuals on the list of founding members provided by the Enrolment Committee to the Government of Canada and the Federation of Newfoundland Indians on November 26, 2020.
The individuals that will be added to the founding members list are the key stakeholders of this regulatory initiative. They were notified of their eligibility for founding membership through a mail out which occurred on July 13, 2020.
Those who have not been successful in their reassessment as part of the implementation of the Wells decision have had the opportunity to appeal their denial of founding membership. All appeal notices continue to be processed by independent Appeal Masters.
Modern treaty obligations and Indigenous engagement and consultation
The Qalipu Mi'kmaq First Nation is a landless Band on the Island of Newfoundland. There are no modern treaties, land claims or self-government agreements in the area.
The Government of Canada, through various means such as the Implementation Committee (comprised of representatives of both Canada and the Federation of Newfoundland Indians) as well through direct communications with applicants, has been consulting with those impacted by amendments to the Recognition Order.
A regulatory order is the only mechanism that is available to update the Qalipu Mi'kmaq First Nation founding members list as per section 3 of the Qalipu Mi'kmaq First Nation Act (S.C. 2014, c. 18).
Benefits and costs
The proposed amendments to the Recognition Order would allow individuals who were successful in their reassessment as part of the implementation of the Wells decision to be legally identified as founding members of the Qalipu Mi'kmaq First Nation. They would also address the concerns raised by the Standing Joint Committee for the Scrutiny of Regulation by reintroducing a schedule to the Qalipu Mi'kmaq First Nation Band Order while still protecting personal information.
Costs associated with the proposed amendments relate to the increased cost of programs and services for individuals added to the founding members list, such as Non-Insured Health benefits, as well as the Post-Secondary Student Support Program. Since Qalipu is a landless Band, funding for community-based programs would not be accessible.
Small business lens
Analysis under the small business lens concluded that the proposed amendments would not impact Canadian small businesses.
The one-for-one rule does not apply to the proposed amendments, as there would be no change in administrative costs to business.
Regulatory cooperation and alignment
The proposed amendments to the Recognition Order would support the implementation of a bilateral agreement between Canada and the Federation of Newfoundland Indians.
Strategic environmental assessment
The Qalipu Mi'kmaq First Nation is a landless Band. The proposed amendments to the Recognition Order would update the founding members list. Therefore, there would be no environmental impacts.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Implementation, compliance and enforcement, and service standards
The proposed amendments to the Recognition Order would come into force on the date on which that Order is registered. Subsequently, the Indian Registrar, who has the sole authority to amend the Indian Register, would update the Register.
A final notification would also be sent to individuals to inform them of the finalization of the process. Based on their new status, those individuals would be eligible to receive associated federal program benefits.
If required, Governor-in-Council approval of an updated founding members list would be sought following the end of the Wells appeals process, which is expected to conclude in spring 2021, to recognize newly eligible founding members.
Department of Indigenous Services
PROPOSED REGULATORY TEXT
Notice is given that the Administrator in Council, pursuant to section 3 of the Qalipu Mi'kmaq First Nation Act footnote a, 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 30 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 the Department of Indigenous Services (email: firstname.lastname@example.org).
Ottawa, January 28, 2021
Assistant Clerk of the Privy Council
Order Amending the Qalipu Mi'kmaq First Nation Band Order
1 Section 2 of the Qalipu Mi'kmaq First Nation Band Order footnote 1 is replaced by the following:
2 The Qalipu Mi'kmaq First Nation is the body of Indians consisting of the persons identified in the Schedule.
2 The Order is amended by adding, after section 2, the schedule set out in the schedule to this Order.
Coming into Force
3 This Order comes into force on the day on which it is registered.
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 November 26, 2020.