Mr. Speaker, I will be brief on this. I am speaking to Bill C-25, Qalipu Mi'kmaq First Nation Act. This is very short legislation, with simply four clauses. As the parliamentary secretary rightly pointed out, it would grant a power to add or remove names that it was unclear whether the Governor in Council currently had.

I want to put add a couple of details. In 2008, an agreement was to establish a landless band for the Mi'kmaq group of Indians of Newfoundland. The parties intended that the founding membership in the Qalipu Mi'kmaq First Nation would be granted primarily to persons living in or around the Newfoundland Mi'kmaq communities named in the 2008 agreement.

While individuals living outside 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 absences.

As the parliamentary secretary pointed out, there was substantially more applicants than was anticipated and there was, perhaps, a lack of clarity around how the documentation would be applied.

That resulted in a supplemental agreement. On July 4, 2013, Canada and the Federation of Newfoundland Indians announced the supplemental agreement that clarified the process for enrolment in the Qalipu Mi'kmaq First Nation and resolved the issues that emerged in the implementation of the 2008 agreement.

In the supplemental agreement, I want to specifically refer to two things. One was they reiterated, in section 8, the self-identification as a member of the Mi’kmaq Group of Indians of Newfoundland. They said:

In making the Agreement, the Parties were guided by the Supreme Court of Canada’s decision in R. v. Powley where 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 paragraph 4.1(d)(i) of the Agreement. The Parties intended that the Enrolment Committee assess whether applicants had previously self-identified as Members of the Mi’kmaq Group of Indians of Newfoundland.

In the same supplemental agreement in section 5 it says:

Determinations. The Enrolment Committee will determine whether each applicant is eligible to be enrolled under the Agreement. Every applicant will be advised of the Enrolment Committee’s determination of his or her eligibility only after the assessments or reassessments of all applications have been completed.

As the parliamentary secretary pointed out, there were a number of questions that arose during testimony. We sought clarification from the department and the minister's office with regard to a number of them. I want to reiterate for the record about how those would be resolved.

One of the questions was whether there was some sort of an appeal process. The other question was how the Governor in Council got the list. The parliamentary secretary already addressed that in the question and answer.

From the guidance we received, it says that a person's whose name is added to, deleted or omitted from the Indian registry and a band list may protest that decision in accordance with section 14.2 of the Indian Act. Furthermore, the first nation or one of its members may also protest the addition to or deletion or omission of a person's name from the Band list under subsection 14.2(2) of the Indian Act.

It is important to note that the decision of the registrar with respect to whether or not to add a name to the Indian Register and the departmentally maintained band list under paragraph 6.1(b) and 11.1(b) is not discretionary and would not involve a review of the Qalipu enrolment application nor of the enrolment committee review process. Rather, if an applicant is found to be eligible for founding membership by the enrolment committee, in accordance with the agreements, and his or her name is added to the schedule as a founding member, the registrar only has the authority to register that person and will not review the enrolment application. That protest of the registrar's decision would be rather straightforward.

The evidence upon which the registrar will base his decision is whether or not the individual's name appears on the schedule. If the name does not appear on the schedule, then the registrar will not have the authority to add it to the Indian register or the band list under paragraph 6.1(b) and 11.1(b) respectively. The registrar's decision on a protest may also be appealed to the courts in accordance with section 14.3 of the Indian Act, but again the courts would likely not review the enrolment committee's decision under this provision and instead would be limited to reviewing this information that was before the registrar in rendering his decision, namely the presence or absence of a name on the schedule.

I think it is clear that both the registrar and the Governor in Council will not be in a position to override decisions that are being made by the enrolment committee. However, the enrolment committee has an appeal master, so there is a process by which members can actually appeal the enrolment committee's decision.

Finally, there were some questions around the abilities of people going to the courts. The clarification we sought was around that issue. What we received was that clause 4 protected the Federation of Newfoundland Indians, the Qalipu Mi'kmaq First Nation and the Government of Canada from liability. However, the clause did not prevent individuals from appealing the enrolment committee determination or to challenging in court through a judicial review application their exclusion from the schedule to Qalipu Mi'kmaq First Nation band order.

Based on that clarification, the New Democrats are confident that the bill reflects the wishes of the Qalipu Mi'kmaq and we are supporting the bill before the House.

Jean Crowder

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