Applicants who received an Appeal Notice with their letter regarding the Enrolment Committee’s decision had the right to appeal the decision on or before April 13, 2017 regarding eligibility for Founding Membership in the Band. Some applicants did not receive an Appeal Notice because:
- Their application was determined by the Enrolment Committee to be invalid
- Their application was submitted after September 22, 2011 and denied by the Enrolment Committee because they, or, if under the age of 18, either of their parents, were not named in a membership list of the Federation of Newfoundland Indians, Ktaqamkuk Mi’kmaq Alliance, Benoit First Nation or the Sip’kop Mi’kmaq Band nor did they submit any documentary evidence of self-identification of the type specified under section 8 of the Supplemental Agreement.
- All appeals are being handled by a legal team of Appeal Masters who is neutral and independent from the Federation of Newfoundland Indians and the Government of Canada.
- Chief Appeal Master Geoffrey Brown and a legal team of Appeal Masters are reviewing your record and Appeal Notice, in the context of the grounds for appeal, and will render a decision that you will receive in the mail.
- Please see below for a chart explaining how appeals are processed.
- The Appeal Master will consider the applicant’s record that was used by the Enrolment Committee when reaching its decision, along with the reasons you believe the Enrolment Committee made a mistake or error in considering your application and why the documentation submitted with your application demonstrates that you met the requirements to become a Founding Member of the Qalipu Mi’kmaq First Nation.
- The Appeal Master will evaluate the Enrolment Committee’s reason(s) for denying your application, your reasons for arguing that a mistake was made, and whether the documentation you submitted demonstrates that you met the requirements to become a Founding Member in the context of the Agreement-in-Principle and the Supplemental Agreement. The Appeal Master reaches his/her decision after taking all those factors into account.
- Appeal decision letters will be sent out at the end of each month, starting at the end of October 2017, and at the end of each month following until the process is complete.
- Some applicants may receive appeal letters sooner or later than others but this timing will not delay the enrolment process.
- The files are not being processed in any particular order.
- Approximately 13,000 appeals were received. The review of appeals is ongoing. A summary report on the number of successful appeals will be made available at the end of the process.
- As with the January 31 mail out, the letters will contain instructions on what to do next, and how to proceed.
- Depending on the particular criterion upon which the Enrolment Committee decision was based, the file may have to be reviewed again to determine whether the remaining criteria for Founding Membership were met. For example, if an applicant was denied Founding Membership based on Group Acceptance and won their appeal, it means that the applicant’s file must be revisited by the Enrolment Committee for assessment on the grounds of Ancestry and connection to a Pre-Confederation Mi’kmaq community, which was the third phase of enrolment review. A denial of your application on these grounds will result in you having a further right to appeal that decision.
- Please see below for a chart outlining how appeals are processed.
- Please see Question 8 for more information on assessment on remaining criteria for membership.
- Depending on the particular criterion upon which the Enrolment Committee decision was based, the file may have to be reviewed again to determine whether the remaining criteria for Founding Membership were met. For example, if an applicant was denied Founding Membership based on Group Acceptance and won their appeal, it means that the applicant’s file must be revisited by the Enrolment Committee for assessment on the grounds of Ancestry and connection to a Pre-Confederation Mi’kmaq community, which was the third phase of enrolment review. A denial of your application on these grounds will result in you having a further right to appeal that decision. Below is a chart that outlines the criteria for membership.
- The decision of the Appeal Master will be the final decision under the process for determining Founding Membership as set out in the 2008 Agreement and the 2013 Supplemental Agreement. Applicants may wish to consult with a lawyer to determine whether a decision should be made the subject of a judicial review.
- Children of people who will be on the new Founding Members list are entitled to be registered under the Indian Act. If you are a member with existing Founding Membership status, who is now denied Founding Membership, and with a parent on the new Founding Members list you will be automatically added to the Indian Register.
- Existing Founding Members in this category who had their applications rejected will receive a letter from the Indian Registrar in spring 2018 on changes to the applicant’s registration category, as this can only occur once the new Founding Members list is in effect. They will remain members of the band
- Individuals who are not already registered will have to make a separate application seeking registration under the Founding Member parent.
- Please see below for a graph that helps to explain this information.
- According to the Indian Actin its present form:
Upon being registered (or entitled to be registered), Founding Members are considered 6(1)(b)’s under the Indian Act of Canada, which means:
“6(1)(b) – Persons who are members of groups declared to be new bands by the Governor in Council”
- An individual who has the 6(1)(b) classification does qualify to register their children, however the child’s classification will be 6(2) under the Indian Actof Canada, which means:
“6(2) – Persons with one Indian parent registered or entitled under a 6(1) provision”
- An individual with 6(2) classifications under the Indian Actof Canada will not qualify to register their children due to the Section 6(2) Cut-Off that was introduced in the 1985 Indian Act of Canada:
“Section 6(2) Cut-Off – The 1985 Indian Act introduced a cut-off in terms of who is entitled to registration. Persons born to a parent who is registered or entitled to be registered under Section 6(2) are not eligible for registration unless their other parent is also someone who is registered or entitled to be registered under the Act.”
If however, both parents are registered 6(1)(b) Indians under the Indian Act of Canada (does not necessarily mean parents are registered, or entitled to be registered, with the same Indian Act Band), would allow for their children to be registered as 6(1)(f)’s under the Indian Act of Canada, meaning:
- “6(1)(f) – Persons with two registered (or entitled to be registered) parents”
Children of a 6(1)(f) parent are eligible to be registered as Status Indians under the Indian Act of Canada.
For further information, please click here or see question 10 for a graph called “Eligibility for Registration”.
- The Federation submitted an appeal on behalf of 3,000 applicants of which, 2,300 were based on the points system, and 700 were based on ancestry and/or connection to pre-confederation communities. The review process is ongoing and the outcome should be available shortly.
- Some applicants whose files were found to be or ineligible on the grounds of self-identification did not have a right to appeal the Enrolment Committee’s decision. Applicants were able to request administrative review if they believed an element of their application had been missed in the Enrolment Committee’s assessment. If an error was found in the review, the Enrolment Committee then assessed the applicant on the remaining eligibility criteria for Founding Membership.
- Applicants are being notified of the outcome of administrative review as decisions are made. Letters of administrative review should be read carefully, as they may contain instructions for further action, such as an opportunity to appeal.
- A community tour was arranged following the January 31 mail out to ensure that individuals understood the meaning of their decision letters, and in particular, what they would need to do to respond to the Notice of Appeal.
- There is an upcoming round of Town Hall meetings in each of our Wards before the end of 2017. This will be an opportunity to ask questions and more information will be shared at this time.
- The original timeline to create the new Founding Members list is on schedule to be completed in the spring of 2018.
- There are several cases that are now before the Federal Court.