Abbott v. Canada (Attorney General)

Abbott v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-10-16
Neutral citation
2019 FC 1302
File numbers
T-573-18
Decision Content
Date: 20191016
Docket: T-573-18
Citation: 2019 FC 1302
Ottawa, Ontario, October 16, 2019
PRESENT: The Honourable Mr. Justice Lafrenière
BETWEEN:
JUSTIN PHILIP ABBOTT
Applicant
and
CANADA (ATTORNEY GENERAL) AND FEDERATION OF NEWFOUNDLAND INDIANS
Respondents
JUDGMENT AND REASONS
I. Overview
[1] In 2008, the Respondents, the Government of Canada [Canada] and the Federation of Newfoundland Indians [FNI], executed an agreement [Agreement] to create a landless band under the Indian Act, RSC, c I-5 [Indian Act] for the Mi’kmaq of the island of Newfoundland who had a “current and substantial cultural connection” to certain communities. This landless band became the Qalipu Mi’kmaq First Nation [QMFN].
[2] The Agreement established eligibility criteria for membership in the QMFN [Eligibility Criteria]. The Eligibility Criteria required proof of Canadian Indian ancestry, self-identification as a member of the Mi’kmaq Group of Indians of Newfoundland [MGIN], and acceptance as a member by the MGIN [Group Acceptance Criterion]. The Agreement also provided for a two-stage enrolment process as well as an Enrolment Committee to assess applications for membership, assisted by an Implementation Committee, and an authorized Appeal Master to deal with any appeals.
[3] In 2013, Canada and the FNI executed a supplemental agreement [Supplemental Agreement], requiring that all previously accepted applications be reassessed. Appended to the Supplemental Agreement was a directive [Directive] to the Enrolment Committee. The Directive addressed the nature of the evidence that applicants were required to provide to meet the Group Acceptance Criterion and the manner in which the evidence would be assessed.
[4] The Applicant, Justin Philip Abbott, applied for membership in the QMFN in 2009. He was initially accepted for membership in 2011. However, after reassessing his application, the Enrolment Committee determined Mr. Abbott had not satisfied the Group Acceptance Criterion and denied his application in 2017. His appeal to the Appeal Master was dismissed in 2018.
[5] In this proceeding, Mr. Abbott seeks judicial review of two decisions. The first decision is that of Bernard Valcourt, then the Minister of Indian Affairs and Northern Development [Minister], “to enter into the Supplemental Agreement dated July 4, 2013 to issue the appended Directive to the Enrolment Committee and the Appeal Master(s)”. The second decision is that of the Appeal Master dated January 19, 2018, affirming the decision of the Enrolment Committee to reject Mr. Abbott’s application for membership in the QMFN.
[6] In summary, Mr. Abbott submits that the Appeal Master’s decision was made pursuant to unauthorized and unlawful amendments to the Agreement, imposing arbitrary and under-inclusive requirements to satisfy the Group Acceptance Criterion and its assessment. Canada and the FNI respond that the clarifications to the evidentiary criteria for group acceptance set out in the Directive were authorized by the Agreement and reflect Canada and FIN’s original intention.
[7] For the reasons that follow, I find that the Respondents were authorized to issue the Directive, that the decision to issue the Directive was reasonable and that the requirements of the Directive were neither arbitrary nor under­inclusive. Given that the Appeal Master’s decision was based on a proper application of the Directive, and that no procedural unfairness has been established, I conclude the application should be dismissed.
II. Evidence of the Parties
[8] Mr. Abbott filed two affidavits in support of the application—his own and that of Hayward George Young. Mr. Young was involved in the movement for the recognition of the Mi’kmaq of the island of Newfoundland since 1982. He served as an observer at the negotiation committee for a portion of the negotiation of the Agreement in Principle [AIP] that led to the Agreement.
[9] The FNI responded with the affidavit of its former president, Brendan Sheppard. Mr. Sheppard served as President of the FNI from 1994 to 2015 and was directly involved in the negotiation of the AIP and Supplemental Agreement.
[10] Canada relies on the affidavit of Martin Reiher, Assistant Deputy Minister responsible for the Resolution and Individual Affairs Sector of Crown-Indigenous Relations and Northern Affairs Canada since 2017. Prior to occupying his current position, Mr. Reiher worked as legal counsel at Indigenous Affairs and Northern Development Canada Legal Services for twenty years. He participated in the negotiation of the AIP and the Supplemental Agreement and was also a member of the Implementation Committee between 2009 and 2017.
[11] Canada also relies on the affidavit of Keith Desjardins, a manager with the Winnipeg Processing Unit of Indigenous Affairs and Northern Development Canada that provides administrative support to the Enrolment Committee in processing applications for membership in the QMFN.
[12] Mr. Abbott, Mr. Sheppard and Mr. Reiher were extensively cross-examined on their affidavits. In the end, much of the affiants’ evidence is factual and not controversial. The main point of contention between the parties is whether Canada and the FNI originally intended that the QMFN be comprised primarily of Mi’kmaq who had a current and substantial cultural connection with one of the 67 communities on the island of Newfoundland listed in Annex B of the Agreement and that stricter evidence be required from non-residents of the Annex B communities to satisfy the Group Acceptance Criterion.
III. Background Facts
[13] In order to place these reasons in the proper context, it is necessary to set out in some detail the factual background that gave rise to the Supplemental Agreement and ultimately led to the Appeal Master’s decision to dismiss Mr. Abbott’s appeal.
A. Background and Negotiation of the Agreement: 1949 – 2008
[14] When Newfoundland joined Confederation in 1949, the Terms of Union did not provide for the recognition and registration of the province’s Aboriginal peoples under the Indian Act (see Newfoundland Act, 1949, 12-13 Geo VI, c 22 (UK)). As a result, the Indian Act was not applied to the Mi’kmaq of the island of Newfoundland.
[15] In 1972, the FNI was formed through the affiliation of Mi’kmaq bands on the island of Newfoundland. Members of the affiliate bands became, through their membership in those bands, members of the FNI.
[16] In 1989, the FNI initiated an action in this Court (Docket No. T-129-89) seeking a declaration that the members of its affiliate bands (seven local bands and three regional bands) were “Indians” within the meaning of subsection 91(24) of the Constitution Act, 1867, 30-31 Vict, c 3 (UK).
[17] Almost a decade later, Canada entered into talks with the FNI to assess whether the creation of a landless band could be a means of settling that action.
[18] Between 2003 or 2004 and 2006, the FNI and Canada [the Parties] negotiated the AIP for the creation of a landless band for the Mi’kmaq of the island of Newfoundland and the registration of its Founding Members as “Indians” under paragraph 6(1)(b) of the Indian Act.
[19] Ratification by the FNI required that the President of the FNI execute the AIP after a majority of eligible voting members approved the AIP at a ratification vote. Following consultation with its membership, the FNI held the successful ratification vote on March 29, 2008. Of the 3,232 members who voted, 2,913 voted in favour of the AIP.
[20] Ratification by Canada required that the Minister, duly authorized by the Governor in Council, execute the AIP.
[21] On June 23, 2008, Mr. Sheppard and Chuck Strahl, then the Minister, executed the AIP, which became the Agreement for the Recognition of the Qalipu Mi’kmaq Band (that is, the Agreement).
[22] The Agreement put an end to the FNI’s action in this Court.
B. Key Provisions of the Agreement
[23] Section 1.14 of the Agreement defines the “Mi’kmaq Group of Indians of Newfoundland” as referring “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 in Annex B to this Agreement”. Annex B is a list of Mi’kmaq communities developed by the local Band Councils of the FNI.
[24] Section 4.1 provides the Eligibility Criteria for membership in the Band:
4.1 Eligibility Criteria
An individual is eligible to be enrolled as a Founding Member if that individual is alive at the time of the Recognition Order and, in the assessment of the Enrolment Committee:
(a) is of Canadian Indian ancestry, whether by birth or adoption; and
(b) (i) on or before March 31, 1949 was a Member of a Newfoundland Pre-Confederation Mi’kmaq Community; or
(ii) is a descendant; whether by birth or adoption, of a person referred to in subparagraph 4.1(b)(i); and
(c) is not registered on the Indian Register on the date of the Recognition Order; and
(d) on the date of the Recognition Order
(i) self-identifies as a Member of the Mi’Kmaq Group of Indians of Newfoundland; and
(ii) is accepted by the Mi’Kmaq Group of Indians of Newfoundland as a Member of the Mi’Kmaq Group of Indians of Newfoundland.
[Emphasis added.]
[25] The term “Member” is defined in Chapter 1 of the Agreement as meaning a person “that has a current and substantial connection with the Mi’Kmaq Group of Indians of Newfoundland or, in the case of a person referred to in paragraph 4.1(b)(i), had on or before March 31, 1949 a substantial connection with a Newfoundland Pre-Confederation Mi’kmaq Community” [emphasis added].
[26] Section 4.2 of the Agreement establishes an Enrolment Committee, comprised of an equal number of representatives from Canada and the FNI and an independent chair, to assess membership applications on the basis of the Enrolment Committee Guidelines [Guidelines], attached as Annex A to the Agreement, and the Eligibility Criteria.
[27] Section 25 of the Guidelines provides that the Group Acceptance Criterion can be satisfied in one of two ways.
25. Acceptance by the Mi’kmaq Group of Indians of Newfoundland as a Member of the Mi’kmaq Group of Indians of Newfoundland shall be established through substantial connection with that group through either:
a) residency in or around a Mi’kmaq Group of Indians on the island of Newfoundland
OR
b) i) frequent visits and/or communications with
resident members of the Mi’kmaq Group of Indians on the Island of Newfoundland
AND
ii) maintenance of the Mi’kmaq culture or way of life, that is, membership in an organization promoting Mi’kmaq interests; knowledge of Mi’kmaq customs, traditions, and beliefs; participation in cultural or religious ceremonies; or, pursuit of traditional activities.
[28] Section 28 of the Guidelines further provides that when assessing the satisfaction of paragraph 25(b)(i) of the Guidelines, the Enrolment Committee could consider affidavits from at least two resident members detailing the nature and frequency of the applicant’s visits and communications. Section 28 reads as follows:
28. For the purpose of its assessment under paragraph 25(b)(i), the Enrolment Committee may consider affidavits from at least two residents of the Mi’kmaq Group of Indians on the island of Newfoundland which describe in detail the applicant’s visits to the community or communications with the residents as well as the frequency of the applicant’s visits and communications.
[29] Section 29 of the Guidelines provides a non-exhaustive list of example documents and records that the Enrolment Committee could consider when assessing whether an applicant maintained the Mi’kmaq culture or way of life under paragraph 25(b)(ii) of the Guidelines.
[30] Section 30 of the Guidelines further provides that when assessing paragraph 25(b)(ii), the Enrolment Committee could also consider evidence of membership in any existing Mi’kmaq organizations.
[31] Chapter 10 of the Agreement provides for the establishment of an Implementation Committee, comprised of an equal number of representatives from Canada and the FNI and an independent chair. Section 10.4 of the Agreement sets out the duties of the Implementation Committee as follows:
10.4 The Implementation Committee shall oversee and coordinate the implementation of this Agreement and advise the Parties on issues relating to the establishment of the Band. The Implementation Committee shall have no authority to bind the Parties. Without limiting the generality of the foregoing, the Implementation Committee shall:
- develop the Implementation Plan,
- serve as a forum to negotiate the funding agreements referred to in this Chapter including any required amendments to such funding agreements,
- assist the Enrolment Committee as required,
- monitor the progress of the Enrolment Process,
- facilitate the resolution of any implementation issues.
[32] Decisions of the Enrolment Committee are not necessarily final. Section 4.3.1 of the Agreement provides for the selection of an independent and legally trained Appeal Master, and section 4.3.3 of the Agreement provides all applicants, as well as Canada and the FNI, with a right to appeal decisions of the Enrolment Committee to the Appeal Master.
[33] Finally, section 2.15 of the Agreement provides for an amendment mechanism. As a general rule, all amendments must be agreed to in writing by the Parties and be ratified in accordance with the same procedures through which the Agreement itself was ratified. Paragraphs (a), (b) and (c) of section 2.15 provide exceptions to this general rule and permit amendments without ratification in three specific circumstances.
C. Enrolment Process and Creation of the Band: 2008 - 2012
[34] The Agreement provides for a two-stage enrolment process over a four-year period, which would result in a list of individuals to be registered as Founding Members of the QMFN. The first stage was for applications submitted in the first year between November 30, 2008 and November 30, 2009, which were to determine whether there were sufficient numbers to justify the creation of a band. The second stage was for applications submitted in the three years between December 1, 2009 and November 30, 2012. No applications would be accepted after November 30, 2012.
[35] During the first stage of the enrolment process, close to 26,000 applications were submitted. Approximately 75,000 applications were submitted during this second stage, with two-thirds of those applications submitted in the three months before the application deadline of November 30, 2012.
[36] The QMFN was created by an Order in Council on September 22, 2011 [Recognition Order]. The Recognition Order was amended on March 30, 2012 and June 20, 2012 to add additional Founding Members, and by June 21, 2012, there were 23,877 Founding Members registered to the QMFN.
D. The Supplemental Agreement
[37] When the Agreement was executed in 2008, the Parties estimated the QMFN would be comprised of roughly 8,700 to 12,500 members (Canada estimated 8,700 to 12,000 members and the FNI estimated 12,500 members). Mr. Reiher explains at paragraphs 21 to 26 of his affidavit how the Parties arrived at this estimate:
21. The negotiation of the 2008 Agreement was based on the membership criteria of self-identification as a member of an historic community, acceptance of the individual by that community and aboriginal ancestry established by the Supreme Court of Canada decision in Powley. The parties considered the importance placed by the Supreme Court on the past and ongoing participation in a shared culture, in the customs and traditions of a community in an identified geographical location.
22. The parties intended that the First Nation was to be made up primarily of Mi’kmaq that had a current and substantial connection with the 67 communities on the island of Newfoundland listed in the 2008 Agreement, who could actively contribute to the development of the culture, traditions and activities of the Mi’kmaq communities on the island of Newfoundland as described in section 1.13 of the 2008 Agreement: see the testimony of Minister Valcourt before the House committee C-25 on March 25, 2014, attached as Exhibit “D”.
23. The 2008 Agreement also specifically provided for individuals who lived outside of the 67 identified communities to become members if they self-identified as members of the Mi’kmaq Groups of Indians of Newfoundland and were accepted by the group. However, in order for such individuals to become members, they would need to demonstrate that they had maintained a current and substantial connection with a Newfoundland Mi’kmaq community: see the testimony of Minister Valcourt before the House committee C-25 on March 25, 2014, attached as Exhibit “D”.
24. In negotiating the 2008 Agreement, the parties incorporated the desires and participation in cultural practices of the active Mi’kmaq communities in Newfoundland. The long-held desire of these many geographically disparate Mi’kmaq communities was to obtain recognition as a First Nation Band. Community events which fostered the shared culture and traditions of the Mi’kmaq of Newfoundland included regular pow-wows at various locations and the annual St. Anne’s Day celebrations. Attendance at those events, which fostered Mi’kmaq culture, was viewed as an important part of community membership.
25. When the original agreement was signed in 2008, it was estimated the new First Nation would be comprised of roughly 8,700 to 12,000 members, since the 2006 census found there were approximately 23,450 residents of Newfoundland and Labrador who identified themselves as aboriginal. Of this number, about 7,765 identified themselves as First Nation members, as appears from the copy of the 2006 Census of population attached as Exhibit “E”. Information provided by the FNI indicated that this estimate was credible.
26. During the negotiations which led to the 2008 Agreement, Canada and the FNI did not expect more than 20,000 individuals to apply for membership.
[38] Altogether, the Enrolment Committee received over 100,000 applications for Founding Membership during the four-year application period, with almost 46,000 received in the final three months.
[39] Mr. Reiher pointed to census data in his affidavit as support for the concerns expressed by Canada and the FNI regarding the unexpectedly high volume of applications received. (Certain percentages incorrectly stated by Mr. Reiher have been corrected for the purpose of these reasons.) In the 2001 Census, 2.0% of Canada’s population declared themselves First Nation, with 1.4% of the population of Newfoundland and Labrador self-identifying as First Nation (including Innu and Mi’kmaq). In the 2006 Census, 2.0% of Canada’s population declared themselves First Nation, with 1.6% of the population of Newfoundland and Labrador self-identifying as First Nation (including Innu and Mi’kmaq). In the 2011 Census, 2.5% of Canada’s population declared themselves First Nation, with 3.7% of the population of Newfoundland and Labrador self-identifying as First Nation (including Innu and Mi’kmaq) (that is, 19,315 out of 514,536 individuals).
[40] After receiving many more applications than anticipated, the Parties questioned whether it was possible to review all the applications before the Agreement’s deadline. The Parties’ review of the enrolment process also raised a concern that the Enrolment Committee was accepting standard form affidavits containing generic statements regarding applicants’ maintenance of the Mi’kmaq way of life and Mi’kmaq culture when finding that non-resident applicants were meeting the Group Acceptance Criterion.
[41] The bases for their concerns are well encapsulated in paragraphs 34 to 38 of Mr. Sheppard’s affidavit.
34. After Qalipu was formed, tens of thousands of applications continued to be received. Through my involvement in the Implementation Committee established under the Agreement, I learned that the majority of applications received after Qalipu’s formation were from applicants who lived outside the geographic locations of the Mi’kmaq Group of Indians listed in Annex ‘B’ of the Agreement. I was surprised by this. If these individuals had sought to maintain Mi’kmaq culture or way of life, I would have expected greater numbers of people attending cultural events such as the Conne River or Flat Bay pow-wows or St. Anne Day ceremonies. Prior to Qalipu’s formation, the number of people who would attend FNI-sponsored cultural events never exceeded more than a couple of hundred.
35. I also would have expected a greater number of Individuals living outside the geographic locations of the Mi’kmaq Group of Indians of Newfoundland to have sought FNI membership or to see such numbers reflected in the membership of other organizations on the island of Newfoundland representing Mi’kmaq, particularly the KMA which I understood accepted membership from individuals living off the island of Newfoundland. After the FNI’s by-laws were amended in 2003 to allow individuals to apply to become General Members, no more than a few hundred individuals became FNI General Members up to 30 November 2007 when the FNI froze its membership.
36. Through a review of a random sample of applications undertaken by the Indian Registrar, it was discovered that applicants were submitting standard form affidavits, with blank spaces to insert names, describing hunting, fishing, and picking berries as maintaining a Mi’kmaq way of life. The high number of applications being received, including from applicants living outside the geographic locations of the Mi’kmaq Group of Indians listed in Annex ‘B’ of the Agreement, raised concerns as to whether applicants continued to rely on such affidavits in support of their applications.
37. Furthermore, in the latter stages of the enrolment process, the FNI also identified inconsistent provisions in the Agreement that could potentially result in applicants, who did not self-identify as members of the Mi’kmaq Group of Indians prior to Qalipu’s formation, being determined to have nevertheless met the criterion. The Agreement specified that the self-identification criterion could be met by signing the application. The eligibility criteria required that self-identification had to occur prior to Qalipu’s formation. Signing an application after the date Qalipu was established meant that applicants who could not objectively establish that they had self-identified as a Member of the Mi’kmaq Group of Indians of Newfoundland prior to Qalipu’s formation could still be held to meet that criterion.
38. The combination of the high number of applications being received, the discovery that there were applicants, living outside the Annex ‘B’ geographic locations of the Mi’kmaq Group of Indians of Newfoundland, submitting standard form affidavits, and the realization that inconsistent provisions in the Agreement could result in applicants erroneously being held to have met the self-identification criteria prompted the parties to examine the enrolment process to ensure that the Enrolment Committee was applying the Agreement as the parties intended.
[42] The credibility of the applications and enrolment process was being questioned not only by the Parties, but by other Indigenous organizations as well.
[43] In a letter dated March 22, 2011 to the Enrolment Committee, Canada expressed concerns regarding the strength of the evidence that non-resident applicants were presenting. These concerns were repeated in subsequent correspondence to the Enrolment Committee. Canada then appealed Enrolment Committee decisions finding that the Group Acceptance Criterion had been met.
[44] The Appeal Master allowed a number of Canada’s appeals, accepting Canada’s view that certain applicants’ evidence of group acceptance was insufficient to justify the Enrolment Committee’s award of membership in the QMFN. In coming to that conclusion, the Appeal Master determined that standard form affidavits stating simply that an applicant hunts, fishes and picks berries, which are not exclusively Mi’kmaq pursuits, are not determinative of involvement in and acceptance by the Mi’kmaq community. The Appeal Master also concluded that acceptance by the MGIN must mean more than keeping a connection with an applicant’s own family.
[45] It became clear to the Parties in the summer of 2012 that the QMFN’s membership applications could not be assessed by the March 23, 2013 deadline imposed by the Agreement. Consequently, Mr. Sheppard wrote to Canada to request an extension to the deadline to permit the Enrolment Committee to process all membership applications.
[46] Negotiations between the Parties followed. Their discussions focussed on concerns with the integrity of the enrolment process, specifically relating to the sufficiency of evidence being provided by the applicants to meet the Group Acceptance Criterion and the inconsistent provisions within the Agreement on meeting the self-identification criterion. On the evidentiary requirements to meet the Group Acceptance Criterion, the Parties discussed whether the Appeal Master’s decisions adequately addressed the type of evidence that should be accepted as sufficient to meet the criterion, including with respect to how applicants maintained a Mi’kmaq culture and way of life. The result of these negotiations was the Supplemental Agreement executed by the Parties on June 30, 2013.
[47] Canada and the FNI announced the execution of the Supplemental Agreement in a joint press conference on July 4, 2013, in which both parties stated that the high number of applications were not credible and undermined the integrity of the QMFN.
E. Terms of the Supplemental Agreement and the Directive Relevant to the Group Acceptance Criterion
[48] The preamble to the Supplemental Agreement expresses the Parties’ reasons for its execution, and it is reproduced below in full:
WHEREAS the Preamble to the Agreement for the Recognition of the Qalipu Mi’kmaq Band (the “Agreement”) expressed the intent to establish a landless band for the Mi’kmaq Group of Indians of Newfoundland;
AND WHEREAS the eligibility criteria to be enrolled as a Founding Member of the Qalipu Mi’kmaq First Nation Band (section 4.1 of the Agreement) required among other things that an individual:
(i) self-identify as a Member of the Mi’kmaq Group of Indians of Newfoundland, and
(ii) be accepted as a Member of the Mi’kmaq Group of Indians of Newfoundland,
on 22 September 2011, the date that the Governor-in-Council adopted the Recognition Order establishing the Mi’kmaq Group of Indians of Newfoundland as a band for the purposes of the Indian Act;
AND WHEREAS Member was defined within the Agreement to mean a person having a current and substantial connection with the Mi’kmaq Group of Indians of Newfoundland;
AND WHEREAS the Mi’kmaq Group of Indians of Newfoundland was defined within the Agreement to refer collectively to the Mi’kmaq Groups situate at the various locations on the island of Newfoundland listed in Annex ‘B’ to the Agreement;
AND WHEREAS the Agreement was signed by the respective Parties on 23 June 2008;
AND WHEREAS by the terms of the Agreement, every applicant has to establish that he or she had a current and substantial connection to the Mi’kmaq Group of Indians of Newfoundland leading up to and on the date of the Recognition Order, and that applicants residing outside of the locations listed in Annex ‘B’ to the Agreement had to provide objective evidence in support of a strong and continuing connection to that Group;
AND WHEREAS the foundation for the creation of a landless Indian Act band was based on the membership of the following Mi’kmaq Groups of Indians who advocated for many years prior to the signing of the Agreement to have their members recognized as members of a band created pursuant to the terms of the Indian Act: Federation of Newfoundland Indians; Ktaqamkuk Mi’kmaq Alliance; Benoit First Nation; Kitpu Band; and Sip’kop Mi’kmaq Band;
AND WHEREAS applying section 24 of the Enrolment Committee Guidelines (Annex ‘A’ to the Agreement) to applications signed after 22 September 2011 would result in the acceptance of evidence that would not be sufficient to meet the criterion that the applicant self-identified as a Member of the Mi’kmaq Group of Indians of Newfoundland prior to and on the date of the Recognition Order, as required by paragraph 4.1(d)(i) of the Agreement;
AND WHEREAS, therefore, reliance solely on the evidence authorized by section 24 of the Enrolment Committee Guidelines would be inconsistent with the requirements of paragraph 4.1(d)(i) of the Agreement if applied to applications signed after 22 September 2011, thereby requiring the correction of a defective provision within the Agreement;
AND WHEREAS the Parties desire to give greater precision on the nature of the evidence that Applicants shall provide to establish that they have been accepted by the Mi’kmaq Group of Indians of Newfoundland in accordance with the criterion established pursuant to paragraph 4.1(d)(ii) of the Agreement;
AND WHEREAS the Parties desire to issue the directive appended herein to the Enrolment Committee that has been established pursuant to the Agreement to address the nature of the evidence that applicants shall provide in order to meet the paragraph 4.1(d)(ii) criterion contained in the Agreement and the manner in which the evidence is to be assessed;
AND WHEREAS the volume of applications submitted by individuals seeking membership in the band far exceeded the reasonable expectations of the Parties so as to overtake the capacity of the enrolment process established pursuant to the Agreement to assess the applications received within the timeframes set out in the Agreement;
AND WHEREAS the Parties’ original intention was, and continues to be, that all applicants be treated in a fair and equal manner;
AND WHEREAS section 2.15 of the Agreement allows the Parties to amend its provisions without further ratification to remove conflicts or inconsistencies with the law, to cure manifest errors arising from defective or inconsistent provisions, and to extend time limits;
[…]
[49] Section 2 of the Supplemental Agreement provides for the assessment or reassessment of all applications received and not rejected during the Enrolment Process (November 30, 2008 to November 30, 2012).
[50] Section 9 of the Supplemental Agreement provides for the joint issuance of directives to the Enrolment Committee and the Appeal Master on the application of the Group Acceptance Criterion as follows:
9. Supervision and Directives. The Parties confirm that section 10.4 of the Agreement encompasses the Parties’ authority to supervise the work of the Enrolment Committee and Appeal Master, request reports in the manner and form established by the Implementation Committee, issue joint Directives to the Enrolment Committee and Appeal Master and require the Enrolment Committee and Appeal Master to seek directions from the Parties, through the Implementation Committee, where a novel, unforeseen, situation arises or where the wording of the Agreement needs further clarification.
A Directive on the application of paragraph 4.1(d)(ii) of the Agreement and section 25 of the Enrolment Committee Guidelines is attached as Annex A.
F. The Directive
[51] The preamble to the Directive states that its purpose is to provide directions on the application of paragraph 4.1(d)(ii) and sets out in the context in which it is being issued.
The Preamble to the Agreement for the Recognition of the Qalipu Mi’kmaq Band expressed the intent to establish a landless band for the Mi’kmaq Group of Indians of Newfoundland. The “Mi’kmaq Group of Indians of Newfoundland” referred collectively to the Mi’kmaq Groups situate at the various locations on the island of Newfoundland as determined under the Agreement. Members of the Mi’kmaq Group of Indians of Newfoundland were defined under section 1.13 of the Agreement to be those persons having a “current and substantial connection” with the Group. Founding membership in the Qalipu Mi’kmaq First Nation was intended to be granted primarily to persons living in or around these locations who met the other criteria in the Agreement. However, provision was made in the Agreement to permit persons who lived outside these locations to become band members if they self-identified as members of the Mi’kmaq Group of Indians of Newfoundland and were accepted by the Group. Persons who did not reside in or around these locations had to have a substantial connection to the Mi’kmaq Group on the island of Newfoundland to be eligible to become Founding Members.
The words “current and substantial” must be given their due importance in the context of the Agreement. The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a community’s identity and distinguish it from other groups. The connection that an applicant must show with a Newfoundland community of the Mi’kmaq Group has to be significant in quality and quantity; it must be true, profound and not of recent vintage. An applicant must demonstrate strong ties with the Mi’kmaq Group of Indians of Newfoundland that pre-date or were contemporaneous with the signing of the Agreement and continued up to the date of the Recognition Order.
The frequent references to the Mi’kmaq Group of Indians of Newfoundland in the Agreement show an intention by the Parties to the Agreement that acceptance by the Group must mean more than keeping a connection with one’s own family members. Section 25 of the Guidelines mandates that there be evidence of activities that are directly related to the traditions and culture of the Mi’kmaq Group of Indians of Newfoundland with an emphasis on belonging to a Mi’kmaq community represented by a band or organization in Newfoundland, or in the alternative, a wider participation with the Mi’kmaq Group of Indians of Newfoundland in its activities and ceremonies so as to infer acceptance by the Group.
[52] The body of the Directive does two things. First, it sets out a number of more general principles and requirements the Enrolment Committee and Appeal Master must apply when determining whether an applicant has met the Group Acceptance Criterion. Second, it establishes a point system for the paragraph 4.1(d)(ii) assessment and provides specific directions with respect to the system’s application.
[53] Section 7 of the Directive specifically provides for a heightened threshold of proof for non-resident applicants seeking to satisfy the Group Acceptance Criterion, and particularly for those who have resided for a long period of time outside the location to which their current and substantial connection is alleged.
[54] Section 8 of the Directive further provides that the connection claimed by an applicant “must go beyond close contacts with family members and include participation in the cultural and social life of the Newfoundland communities forming the Mi’kmaq Group of Indians of Newfoundland”.
[55] Section 9 of the Directive states that applicants must provide objective documentary evidence that pre-dates or is contemporaneous with the signing of the Agreement, the connection claimed must have been in existence on the date of the Recognition Order, and that any evidence relating to facts after the Recognition Order is not relevant and must not be considered.
[56] Section 11 of the Directive requires that any documentary evidence submitted to establish Group Acceptance must be supported by at least two affidavits from residents of the MGIN which identify their relationship to the applicant and provide sufficient detail with respect to the elements set out in paragraphs 25(b)(i) and 25(b)(ii) of the Guidelines.
[57] Finally, section 12 of the Directive requires that applicants providing new evidence must submit a sworn declaration attesting to its authenticity.
G. Point System to meet the Group Acceptance Criterion for Membership
[58] Section 6 of the Directive directs the Enrolment Committee to make its assessment under subsection 25(b) of the Guidelines using the point system attached to the Directive.
[59] An applicant who did not reside in a location of the MGIN on the date of the Recognition Order must receive a minimum of 13 points under the Point System to satisfy subsection 25(b) (and therefore to meet the Group Acceptance Criterion for membership).
[60] Up to 4 points can be earned for frequent visits to members of the MGIN, and up to 2 points can be earned for frequent communications with those members.
[61] Section 13 of the Directive provides that to be considered “frequent”, for the purposes of paragraph 25(b)(i) of the Guidelines, visits and communications should occur on a regular basis over an extended period of time prior to or contemporaneous with the signing of the Agreement.
[62] Section 14 of the Directive specifies that “visits and communications must not be limited to family members” and that the evidence thereof “must demonstrate contacts with other Members […] and involvement in the cultural and social life of the Mi’kmaq community”.
[63] Section 15 of the Directive provides examples of documentary evidence (which must pre-date or be contemporaneous with the signing of the Agreement) which may be submitted to meet the requirements of paragraph 25(b)(i), including airplane tickets, phone bills and original dated letters, emails or other written communications.
[64] Up to 9 points can be earned for an applicant’s demonstrated “[m]aintenance of Mi’kmaq culture and way of life” (for the purposes of paragraph 25(b)(ii)).
[65] Section 16 of the Directive provides that such maintenance may be inferred from “membership in the Federation of Newfoundland Indians, Ktaqamkuk Mi’kmaq Alliance, Benoit First Nation, Kitpu band or Sip’kop band” prior to the signing of the Agreement.
[66] Section 17 provides that such maintenance may also be inferred from evidence pre-dating or contemporaneous to the signing of the Agreement showing that the applicant has attended, participated in or supported religious, ceremonial, traditional or cultural activities of the MGIN; or has demonstrated initiatives taken to gain knowledge of the Mi’kmaq way of life and interact with the MGIN.
[67] Section 18 provides examples of the religious, ceremonial, traditional and cultural activities of the MGIN for the purposes of section 17.
[68] Section 19 provides a list of examples of the types of evidence that can be submitted to satisfy section 17.
[69] Finally, under the point system, an applicant can earn 3 points for residency on the island of Newfoundland and 9 points for membership in one of the Mi’kmaq organizations listed in section 16 of the Directive.
H. Detailed Point System Grid to Assess the Group Acceptance Criterion
[70] On June 30, 2013, the Parties issued the Directive to the Enrolment Committee and the Appeal Master(s) with respect to the application of paragraph 4.1(d)(ii) of the Agreement for the Recognition of the Qalipu Mi’kmaq Band relating to acceptance as a Member of the Mi’kmaq Group of Indians of Newfoundland (that is, the Directive). The Directive was made available to the public.
[71] In the year following the execution of the Supplemental Agreement, the Parties, through the Implementation Committee, developed a second, more specific version of the point system [Detailed Point System Grid]. The Detailed Point System Grid was not made available to applicants. The Detailed Point System Grid was developed with input from the Enrolment Committee, and the Enrolment Committee was encouraged to recommend additional Mi’kmaq cultural activities not initially considered by the Implementation Committee for the Group Acceptance Criterion for inclusion in the D