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.
- For unsuccessful appeals, the appellant will receive notification from the Appeal Master indicating that the decision of the Enrolment Committee has been maintained.
- When an appeal is successful, the Appeal Master will notify the Enrolment Committee that their decision has been overturned. The Enrolment Committee will then review the applicants file on remaining criteria, where applicable, and notify the appellant on whether they meet the criteria for Founding Membership.
- Please see below for a chart explaining how appeals are processed
3. What does it mean that if my appeal is successful, it is returned to the Enrolment Committee for assessment on remaining criteria?
- The files were reviewed in stages; the first being self-identification, then group acceptance and finally ancestry. If the applicant failed self-identification, the file was closed, and a decision rendered. The same held for each stage. For example; if a file passed self-identification, it was moved to the next stage which was group acceptance. If at this stage the file failed to meet the criteria, the decision was rendered, and the file was closed without ancestry being reviewed. If the applicant in this example appealed and was successful, then the file goes back to the Enrolment Committee to review the file for ancestry. If ancestry is verified, the applicant can then be admitted to the Band. Some files (in particular, those that already have status cards) have already had ancestry approved and therefore that will not have to happen a second time and they will remain in the Band. If the Enrolment Committee finds that a person who is not already a Founding member of the Band has not proven ancestry, they will be advised in a letter to the Enrolment Committee and will be provided an opportunity to appeal this decision.
- A chart outlining the process can be found on Question 2.
4. Is everything that I submitted in my application being considered by the Appeal Master, even if it’s not in the direct “context of the grounds for appeal”?
- Yes, the Appeal Master’s review will include everything that was raised in your appeal.
5. What is the Appeal Master considering during the appeal process? How does he/she reach a decision?
- 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 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.
7. A new batch of letters was sent out at the end of November. How many were sent? When will it be completed?
- Approximately 4500 letters were mailed at the end of November. A larger number can be expected at the end of December, and the balance will be completed by the end of January 2018.
- 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 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.
11. If my appeal is successful, why is my file being returned to the Enrolment Committee for assessment on remaining criteria for membership?
- Depending on the 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.
12. If my file is reviewed by the Enrolment Committee on remaining criteria, how long will this take?
- The Enrolment Committee has been organized so that it can immediately review whether the remaining criteria have been met.
13. Who is on the Enrolment Committee that will be doing the assessment on remaining criteria for successful appeals?
- The Enrolment Committee comprises two representatives appointed by the FNI, and two by Canada. It is chaired by Ron Penney. The assessment will be done where they meet.
- 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.
- If your parent is a Founding Member who will maintain Founding Membership, you are entitled to be registered under the Indian Act right now. You can contact our Indian Registration Administrator, Charmaine Bath, for assistance. Reach Charmaine at 679-2142 or 1-855-263-6440 (toll free available in Newfoundland only)
- If you are a Founding Member whose appeal has been denied, and you have a parent who will have, or maintain, Founding Membership, your name will be automatically maintained on the Indian Register. In Spring 2018, once the new Founding Members list is in effect, you will receive a letter regarding a change to your registration category. You will still be a member of the Band.
16. As a layperson, I do not have a clear understanding of the Indian Act. What are section 6(1)(b), and 6(2) and so on?
- 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”.
17. The Federation of Newfoundland Indians submitted appeals for some applicants. How many did you submit and how many were successful?
- 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 decision rendered by the Chief Appeal Master will be forwarded to the affected applicants. If you submitted your own appeal, the decision on your appeal and on the Federation of Newfoundland Indians appeal will be forwarded to you at the same time.
- 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.
- 930 applicants have been notified of the outcome of their request for an administrative review. Letters should be read carefully, as they may contain instructions for further action, such as an opportunity to appeal.
19. Qalipu hosted a number of community meetings following the January 31, 2017 mailout. Are we gearing up for this part of the process as well? Will there be a post-appeal community engagement?
- 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.
- Front line staff in each of our office locations are available to take your call
- 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.