Order Amending the Qalipu Mi’kmaq First Nation Band Order: SOR/2022-266

Canada Gazette, Part II, Volume 156, Number 26

Registration
SOR/2022-266 December 7, 2022

QALIPU MI’KMAQ FIRST NATION ACT

P.C. 2022-1310 December 7, 2022

Her Excellency the Governor General in Council, on the recommendation of the Minister of Indigenous Services, makes the annexed Order Amending the Qalipu Mi’kmaq First Nation Band Order under section 3 of the Qalipu Mi’kmaq First Nation Act footnote a.

Order Amending the Qalipu Mi’kmaq First Nation Band Order

Amendment

1 The schedule to the Qalipu Mi’kmaq First Nation Band Order footnote 1 is replaced by the schedule set out in the schedule to this Order.

Coming into Force

2 This Order comes into force on the day on which it is registered.

SCHEDULE

(Section 1)

SCHEDULE

(Section 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 November 7, 2022.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Qalipu Mi’kmaq First Nation Founding Members list needs to be updated to include 113 newly eligible individuals who are now entitled to be registered as Status Indians under the Indian Act. The individuals are being added following the conclusion of the appeals process subsequent to the May 8, 2018, Federal Court decision in Wells et al. v. Canada (Attorney General) 2018 FC 483, the reassessment process based on disability, and Administrative Reviews (including on the basis of residency).

Background

In 2006, the Federation of Newfoundland Indians (FNI) and the Government of Canada (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 in June 2008. It established a two-stage enrolment process (from December 1, 2008, to November 30, 2012) for the creation of the band and the enrolment of its Founding Members.

Applications for founding membership were assessed by an Enrolment Committee consisting of representatives from the FNI, Canada, and 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.

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 23 877 individuals who were subsequently registered as Status Indians under the Indian Act.

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 lengthened the assessment timelines clarified the eligibility criteria, and clarified the evidentiary requirements to support the application. A point system was also developed 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. The Parties also provided individuals the opportunity to submit additional documentation for the eligibility criteria of self-identification and group acceptance. All applicants, including the initial Founding Members, were then reassessed on the basis of these clarifications.

As a result of this assessment, some individuals who were previously accepted as Founding Members of the Qalipu Mi’kmaq First Nation had their decision overturned, and some members who were second stage applicants were not accepted. On June 25, 2018, an order (SOR/2018-139) made pursuant to the Qalipu Mi’kmaq First Nation Act repealed the schedule that contained the Founding Members List from the 2011 Recognition Order and incorporated by reference a Founding Members List comprised of 18 575 individuals.

As part of the implementation of the Federal Court Decision in Wells et al. v. Canada (Attorney General) 2018 FC 483 (the Wells decision), individuals who were denied under the self-identification criterion, were given the opportunity to have their files reassessed by the Enrolment Committee and provided the right to appeal for those who received a letter of denial. On May 1, 2021, an order (SOR/2021-90) made pursuant to the Qalipu Mi’kmaq First Nation Act added 302 individuals to the Founding Members List. These individuals were reassessed successfully based on self-identification, group acceptance and ancestry. As well, some were deemed eligible for founding membership as a result of Administrative Reviews of their files and the settlement of litigation. Since then, the Appeal Masters concluded the review of residual appeal notices stemming from the Wells decision. As a result of the review of these appeal notices, 12 additional individuals are now qualified for founding membership.

In July 2021, the FNI and Canada also implemented an initiative to accommodate and reassess individuals whose application for founding membership was denied based on the group acceptance criterion (point system); who had a disability that significantly restricted or prohibited travel for a substantial portion of the period from 2006 to September 22, 2011; and who were unable, based on their disability, to meet the requirements of the point system because of that travel restriction. Individuals affected by this initiative were informed of the steps to follow to request a reassessment as well as how the Enrolment Committee would reassess their files. As a result, 13 individuals are now qualified for founding membership.

Finally, through Administrative Reviews based on residency, the FNI and Canada recognized that applicants who were assessed as non-residents under the points system had not submitted the required documentation to substantiate residency in or around one of the 67 communities listed in Annex B to the 2008 Agreement. Individuals identified as being impacted were given the opportunity to provide additional residency documentation in order to have their applications reconsidered and individuals who received a denial letter had the right to appeal the decision. As a result of this review process, 86 individuals qualified for founding membership. Other Administrative Reviews were conducted on an ad hoc basis were completed by the Enrolment Committee. These were conducted as it appeared, upon a cursory review, that a manifest error may have been made during the initial review by the Enrolment Committee. As a result of these reviews, two individuals are now qualified for founding membership.

As a result of the processes described above and since the last update to the Founding Members List, a total of 113 individuals have now qualified for founding membership.

Objective

To recognize the 113 newly eligible Qalipu Mi’kmaq First Nation Founding Members who are now entitled to be registered as Status Indians under the Indian Act.

Description

The Order Amending the Qalipu Mi’kmaq First Nation Band Order amends the Recognition Order (SOR/2011-180) to

Regulatory development

Consultation

The amendments to the Recognition Order are the result of a court decision and implements the results of a reassessment of applications for founding membership in the Qalipu Mi’kmaq First Nation by the Enrolment Committee that determined that 113 individuals are now deemed Founding Members of the Qalipu Mi’kmaq First Nation and are therefore eligible for Indian status. The individuals added to the Founding Members List are the key stakeholders of this initiative. They have proven that they meet the specific criteria for founding membership detailed in the Agreement for the Recognition of the Qalipu Mi’kmaq Band (qalipu.ca). They were notified through a decision letter that they met the criteria for founding membership, which was mailed on June 13, 2022. No additional consultations are required.

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 the FNI and Canada) as well through direct communications with applicants, has been consulting with those impacted by amendments to the Recognition Order. There have been no concerns heard by the Band or the membership on the addition of these founding members.

Instrument choice

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).

Regulatory analysis

Benefits and costs

The amendments to the Recognition Order allow individuals who were successful in their reassessment to be legally identified as founding members of the Qalipu Mi’kmaq First Nation.

Costs associated with the amendments relate to the increased cost of programs and services for Founding Members and their descendants, such as Non-Insured Health benefits, as well as the Post-Secondary Student Support Program. Since the Qalipu Mi’kmaq First Nation is a landless Band, funding for community-based programs is not accessible.

Small business lens

The small business lens does not apply, as there are no associated costs on small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no change in administrative burden on business.

Regulatory cooperation and alignment

The amendments to the Recognition Order support the implementation of a bilateral agreement between the FNI and Canada.

Strategic environmental assessment

The Qalipu Mi’kmaq First Nation is a landless Band. The amendments to the Recognition Order update the Founding Members List. Therefore, there are no environmental impacts.

Gender-based analysis plus (GBA+)

The Qalipu enrolment process did not target any gender group in particular. The enrolment criteria of Self-Identification, Group Acceptance and Ancestry were negotiated by Canada and the FNI in order to grant recognition to the Mi’kmaq people of Newfoundland. While the parties agreed that recognition should be granted to those who live in one of the 67 recognized Mi’kmaq Communities, individuals who lived outside had the opportunities to prove their connection to the Group.

A systemic issue in the application of the point system for individuals who had a disability that precluded them from travel was rectified through a reassessment of individuals who requested reconsideration under the Disability initiative.

Implementation, compliance and enforcement, and service standards

The amendments to the Recognition Order came into force on the date on which the Order Amending the Qalipu Mi’kmaq First Nation Band Order was registered. As such, the Indian Registrar, who has the sole authority to amend the Indian Register, can now update the Register.

A final notification will be sent to the 113 new Founding Members informing them of the finalization of the process. Based on their new status, they will now be eligible for associated federal programs, benefits and rights.

Contact

Department of Indigenous Services
Telephone: 1‑800‑561‑2266
TTY: 1‑800‑465‑7735
Email: aadnc.qalipu-orderincouncil.aandc@canada.ca