Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 74
  Wednesday, June 18, 2014
Speech: Bill C-25,Qalipu Mi'kmaq First Nation Bill (3rd Reading)

On the Order: Resuming debate on the motion of the Honourable Senator Wallace, seconded by the Honourable Senator Eaton, for the third reading of Bill C-25, An Act respecting the Qalipu Mi'kmaq First Nation Band Order.

Hon. Lillian Eva Dyck: Honourable senators, I rise to speak to Bill C-25. Senator Baker, you're a hard act to follow.

First of all, I'd like to make some acknowledgments. I would like to acknowledge the hard work of our chair, Senator Patterson; the critic of our bill, Senator Baker; Senator Wallace, who was the sponsor of the bill; and all the other senators who attended the committee, as well as our hard-working staff.

As Senator Baker has already mentioned, we did do an in-depth study of this bill, much deeper than the House of Commons did. In fact, we had the Department of Justice and people from Aboriginal Affairs and Northern Development come back again so that we could quiz them again and really understand what was going on in this bill. Senator Wallace gave us the intention of the bill, which is honourable. It is a good bill in terms of the intentions. However, as we could hear, clauses 3 and 4 take away from that, and because of that, the bill should be rejected. We should not pass it. We should vote against it.

During the testimony, when we had the officials back, we also heard from Ms. Jaimie Lickers, who was the lawyer for the Mi'kmaq First Nations Assembly of Newfoundland. She gave us a presentation that was extremely clear. In it, she did say very clearly that it was unfair because we would be applying the same criteria for membership in the band, but different documentation would be applied to different groups of people who are applying for membership; so that was unfair. I will come back to that in just a few minutes.

As I said, the intention of the bill is to create the Qalipu Mi'kmaq Band in Newfoundland. They will be a landless band. They don't have a reserve. As was mentioned by my colleague Senator Baker, some of them have already been registered and are receiving some benefits of Indian status, such as eligibility to receive Non-Insured Health Benefits, and for those who are of the age to go to post-secondary education, there are funding dollars available to do that.

The legislation is needed, as was pointed out, to amend the recognition order to add or delete names, to substitute the original list that comprised the founding members of the Qalipu First Nation. Before I get into that, one of the things that struck me as odd right off the bat was that they didn't follow the Indian Act with respect to how Indian status is actually determined by the Indian Act. Basically, it boils down to blood quantum. They didn't do that. Instead, they decided to follow the Metis-led criteria, the Powley decision, where the person has to self-identify. They have to come from a recognized Mi'kmaq family. They have to establish that their family was in a recognized Mi'kmaq community. They have to have maintained contact with that community, so as, in a sense, to keep the Mi'kmaq culture and identity alive. That's what they've done. They've taken the Metis-like criteria and, of course, we know right now that that has created problems for the Metis across Canada. They've had appeals. They've been recognized in Manitoba as being Indians, under the Indian Act, but the federal government has appealed that decision. That decision is still waiting for what happens in the appeal process.

They didn't choose to use the rules that are in the Indian Act. They went this other route instead.

When they began, as was pointed out by the sponsor, there was a court challenge where the Mi'kmaq wanted to be recognized as Indians. As part of that settlement, there were lots of discussions with the federal government to come up with the agreement in 2008, at which point they expected to get maybe 9,000 or 12,000 members. In fact, when they made the recognition order on September 22, 2011, they actually had 23,877 who were recognized as founding members, about twice what they expected.

As people began to hear about what was going on, applications kept coming in, the deadline was extended and now, as our sponsor said, over 100,000 people have applied. Of course, this was much greater than was expected, so then they went back to re-examine the criteria and decided that the criteria are okay, but the documentation you need to submit to prove that criteria has to be tightened up and clarified. Here's where the problems come in with respect to that.

The original group, the 24,000 who were signed on in September 2011, they will be considered as self-identified; they're checked off; they're fine. For those people who applied after September 22, 2011, they have to submit greater levels of documentation to satisfy the criteria of self-identification. Although the criteria is the same, the evidence, the proof, the documentation that they need to provide is at a higher level.

What will be the upshot of this? The upshot will be the supplemental agreement now saying we need more documentation to prove that you're a Mi'kmaq descendant. The upshot will be to reduce the 100,000 to whatever it will be, including the founding members. In addition to that, in the first group that was recognized, there may be people who should not have been recognized. There will be two types of errors. There will be those who got in who shouldn't have got in; and, in the end, those who thought they were getting in will not get in. That's the fundamental flaw, and that's what the lawyer was objecting to.

Our colleague Senator Baker pointed out very clearly that clause 3, talking about the Governor-in-Council adding or deleting names, goes against the Indian Act.

Not being a lawyer and I was going to ask you about it, Senator Baker my thought was that with this Governor-in-Council order, the Qalipu Mi'kmaq First Nation Band will be different than any other band across Canada. In a sense, this bill is setting up discrimination and saying, "You're different." From here on in, the Governor-in-Council can say, "I'm going to take a name off or I'm going to add a name," but the Governor-in-Council cannot do that for any other band in Canada.

Clearly, that's not right. The purpose of the Senate is to examine legislation and, if we see a flaw, we fix it or we reject it. In this case, unfortunately, I don't think we can fix the bill, so we have to reject it. That's why we didn't attach observations. The clerk asked, "Are you going to attach observations?" I said no, because basically the bill is so fundamentally flawed, there's nothing we can do to fix it. I urge everybody to reject it.

My honourable colleague also talked about clause 4 and removing the ability to sue the government or the Federation of Newfoundland Indians. The people who are being cut off the list can't sue them for compensation either. We were told they could still take their case to court. However, as was pointed out by my colleague, theoretically you could take it to court. Yes, you have that option, but we know if you do that, you will lose, because of the Etches case law. Although in theory you have the right to appeal, in practice you can appeal, but you know the answer will be no. It's a phony appeal. It won't give you anything. You're set up for failure.

It is going to affect the founding members and I don't know how many tens of thousands who have applied. They will not get their answer until sometime in 2016, at which point they will all hear at the same time whether or not they're on the list. They have a long time to wait to find out what the decision will be.

Since clauses 3 and 4, which are the guts of the bill, are so fundamentally flawed, the bill should be rejected.

As I said, our role as senators is to protect minorities. Of course, the Aboriginal peoples, the First Nation people in Canada, are one of the minorities whose interests we should be looking after. I would urge you to carefully consider this.

We are supposed to be here to pass the best legislation possible. Our primary job is to examine legislation. If it's not correct, if it's breaking the law that's outlined in the Indian Act, then how can we say we're in favour of it? It's contravening another law that's already in existence.

This bill is not even necessary for the Qalipu Mi'kmaq First Nation members themselves. They already have the agreement set up. The lawyer said those agreements are legally enforceable. The agreements are already set. It's really not about the Qalipu Mi'kmaq First Nation at all. The bill actually should be renamed. It shouldn't be called the Qalipu Mi'kmaq First Nation act. It should be called the "granting the Governor-in-Council power over the band membership of the Qalipu Mi'kmaq First Nation act." It's granting the Governor-in-Council a new power. It's not about the Qalipu Mi'kmaq First Nation; that's covered by the agreements.

We could call it "protecting the Government of Canada and the Federation of Newfoundland Indians against complaints act." That's what this bill is all about. That's what clause 3 and 4 are all about. Therefore, the bill is really not to help the Qalipu Mi'kmaq First Nation; it's there to protect the Government of Canada and the Federation of Newfoundland Indians, who set up those agreements and then realized they were flawed.

I don't understand this. If they had applied the supplementary agreement to the very beginning of the process, from day one when they started taking applications in June 2008, and had applied the same level of documentation to absolutely everyone who applied, then that would be a different picture. They didn't do that. The witness, Jaime Lickers, said ideally the same criteria and the same level of documentation should have been applied to everyone, not depending on the recognition order of when the founding members' list was ratified, and that the band was actually created.

I urge all senators, especially those on the committee, to vote against this bill.