Dockets: T-746-21
T-747-21
Citation: 2025 FC 463
Ottawa, Ontario, March 12, 2025
PRESENT: The Honourable Mr. Justice Favel
Docket: T-746-21 |
BETWEEN: |
ALPHONSUS COLLIER |
Applicant |
and |
APPEAL MASTER |
(APPOINTED IN ACCORDANCE WITH THE |
2008 AGREEMENT TO RECOGNIZE |
THE QUALIPU MI'KMAQ BAND) |
Respondent |
Docket: T-747-21 |
AND BETWEEN: |
GERMAIN COLLIER |
Applicant |
and |
APPEAL MASTER |
(APPOINTED IN ACCORDANCE WITH THE |
2008 AGREEMENT TO RECOGNIZE |
THE QUALIPU MI'KMAQ BAND) |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Government of Canada [Canada] and the Federation of Newfoundland Indians [FNI] reached an agreement for the creation of a landless band for the Mi’kmaq Group of Indians of Newfoundland [Newfoundland Mi’kmaq Group], who later became the Qalipu Mi’kmaq First Nation [QMFN]. Part of the creation of QMFN involved the development of criteria for individuals seeking membership in QMFN and an appeal process administered by an appeal master [Appeal Master], both of which will be discussed in more detail below.
[2] Alphonsus Collier [A. Collier] and Germain Collier [G. Collier] applied for and received recognition as founding members of QMFN. However, on reassessment, the Enrollment Committee denied their applications. They appealed these denials to the Appeal Master. A. Collier (File Number T-746-21), and G. Collier (File Number T-747-21) [together, the Applicants] seek judicial review of the April 28, 2022 decisions [Decisions] of the Appeal Master dismissing both appeals. A. Collier, self-represented, also made submissions on behalf of his father, G. Collier.
[3] The applications for judicial review are dismissed.
II. Background
A. Qalipu Mi’kmaq First Nation Formation and Membership
[4] Between 2004 and 2006, Canada and the FNI negotiated the creation of the QMFN.
[5] On June 23, 2008, Canada and the FNI entered into the Agreement for the Recognition of the Qalipu Mi’kmaq Band [2008 Agreement]. The membership criteria was based on the following factors established in R v Powley, 2003 SCC 43: self-identification as a member of a current community; links to a historic community; and community acceptance, meaning past and ongoing participation in shared culture and in the customs and traditions of a community in an identified geographic location (at paras 31-33). Non-resident applicants, living outside the 67 Newfoundland Mi’kmaq communities, could qualify for membership if they self-identified as members of the Newfoundland Mi’kmaq Group and demonstrated a current and substantial connection with a Newfoundland Mi’kmaq community.
[6] The 2008 Agreement created a two-stage enrolment process. In each stage, the Enrolment Committee assessed membership applications while the Implementation Committee facilitated the resolution of implementation issues. The first stage of the enrolment process was open between November 30, 2008 and November 30, 2009, resulting in 25,912 membership application submissions. The second enrolment stage was open between December 1, 2009 and November 30, 2012, resulting in over 75,000 membership application submissions.
[7] Canada and FNI expressed concerns regarding the high number of approved membership applications by the Enrolment Committee. Through letters to the Enrolment Committee between March 22, 2011 and July 26, 2012, Canada questioned the level of detail some applicants provided regarding the strength of their connection to the Newfoundland Mi’kmaq Group. Canada appealed certain membership decisions to the Appeal Master. Some appeals were granted where the Appeal Master found that: (1) standard form affidavits stating an applicant hunts, fishes and picks berries was not determinative of involvement in, and acceptance by, the Mi’kmaq community; and (2) maintaining a connection with an applicant’s own family members was not determinative of acceptance by the group.
[8] In 2012, Canada and the FNI engaged in discussions addressing issues of self-identification and the low evidentiary threshold for group acceptance. On June 30, 2013, Canada and the FNI signed the Supplemental Agreement to address self-identification by: 1) amending the timelines for processing applications; and 2) clarifying the evidentiary requirements for self-identification and group acceptance. The parties also signed a directive to the Enrolment Committee and Appeal Master [Directive] to address the group acceptance criterion. The Directive emphasized a high evidentiary burden for non-resident applicants to demonstrate community acceptance. The Directive also introduced a structured point system.
[9] In July 2013, Canada and the FNI issued a joint press release advising applicants that all previous applications would be reviewed to ensure compliance with the 2008 Agreement, in light of the Supplemental Agreement and Directive. All applicants were given an opportunity to provide further documentation, along with samples of different kinds of acceptable documentation. Applicants were advised of their responsibility to ensure the sufficiency of the evidence provided in support of their applications. The Enrolment Committee reassessed the validity of each application. If an applicant did not meet the membership eligibility criteria, they could then appeal to the Appeal Master.
B. Applications and Appeals by the Applicants
[10] Both A. Collier and G. Collier submitted their respective applications for enrolment on June 2, 2009, as part of a family package. Each Applicant received a letter from the Enrolment Committee on July 9, 2010, advising them that their membership was approved. The initial application was approved based on the following documentation record:
Established descent: Vital statistics records, church records, historical documents, report by Genealogist dated March 12, 1990;
Established connection to pre-confederation Mi’kmaq community: Vital statistics records;
Established connection to current Mi’kmaq community: two affidavits of Mark and Elaine Hynes dated February 24, 2010 indicating regular visits and substantial community connection through frequent telephone calls, emails, facebook, greeting cards, and sustaining close family ties; and
Membership identification cards demonstrating membership in the Benoit First Nation.
[11] The Applicants each received letters dated November 6, 2013 advising them that their applications required reassessment. The Applicants were given an opportunity to provide additional documentation in support of their claims of self-identification and group acceptance. The additional documentation provided included:
For G. Collier: Native Council of Nova Scotia (NCNS) Membership and Community Harvester designation to show a continuation of cultural practices outside of Newfoundland;
For both Applicants: affidavits of Robert Stevenson and Barbara Hatcher dated January 2014 stating the Applicants were born and raised in Newfoundland, moving to Nova Scotia for work, and maintaining contact with family in Newfoundland by phone, email, and cards, calling once per week;
For G. Collier: legal documents demonstrating deed to property in Newfoundland;
For both Applicants: Benoit First Nation band membership identification; and,
For both Applicants: Ktaqamkuk Mi’kmaq Alliance (KMA) membership identification;
[12] On January 31, 2017, the Applicants were notified that the Enrolment Committee denied their applications as they did not meet the criterion of group acceptance [January 31, 2017 Decisions]. As non-residents, the Applicants were assessed on the point system. Neither Applicant obtained the minimum thirteen points required to establish current and substantial connection to the community.
[13] Both Applicants appealed the Enrolment Committee’s January 31, 2017 Decisions. Both appeals raised issues with the constitutionality of the guidelines. On December 29, 2017, the Appeal Master dismissed both appeals, advising the Applicants that an Appeal Master has no authority to decide the constitutional arguments made.
C. Canadian Human Rights Commission
[14] The Applicants, along with three other individuals, filed a complaint against the QMFN and Canada at the Canadian Human Rights Commission [CHRC]. The Applicants alleged discrimination based on the failure of the point system to account for the impact of disabilities that restricted or prohibited travel when the eligibility criteria was established. The Applicants, Canada, and QMFN reached a settlement. This involved a directive issued to the Enrolment Committee to reassess these applications by (1) considering objective evidence of a disability restricting or prohibiting travelling; (2) placing greater weight on communications to recognize efforts to maintain current and substantial connections in spite of a disability; and (3) consideration of the individual on the residency requirements rather than the point system, or for non-residents, placing greater weight on evidence of prior residency when evidence shows an individual moved from Newfoundland to accommodate a disability. The CHRC also directed that the Enrolment Committee should provide detailed reasons for denial. The Minutes of Settlement was approved by the CHRC on October 16, 2019.
D. Reconsideration of the Applicants’ Applications
[15] On February 10, 2020, the Applicants were each notified that the Enrolment Committee would reassess their applications, provided they met the criteria. The letter specified this reassessment would be strictly based on the evidence already on file, as well as additional documentation pertaining to disability and residency. Three grounds of reassessment were enumerated as follows:
Only those applicants who meet one or all of the three following criteria are eligible to be reassessed.
1 . Your disability significantly restricted or prohibited travel for a substantial portion of the period from 2006 to 22 September 2011.
Where objective evidence, verified by an appropriate Medical Provider, of a disability that significantly restricted or prohibited an applicant from traveling for a substantial portion of the period from 2006 to 22 September 2011, the Enrolment Committee may award up to six points for communications by placing greater weight on evidence of communications within the period of 2006 to 22 September 2011 to recognize efforts to maintain a current and substantial connection with the Mi’kmaq Group of Indians of Newfoundland. Depending on the contents of the communication, the Enrolment Committee may consider awarding additional points for maintenance of Mi’kmaq culture and way of life. Applicants are still required to meet the overall threshold of 13 points.
2. You were required to move from in or around one of the geographic locations of the Mi’kmaq Group of Indians listed in Annex B of the Agreement for the Recognition of the Qalipu Mi’kmaq Band to accommodate your disability, within the period from 2006 to 22 September 2011.
Where objective evidence, verified by an appropriate Medical Provider, indicates an applicant was required to move within the period from 2006 to 22 September 2011 from in or around one of the geographic locations of the Mi’kmaq Group of Indians listed in Annex B of the Agreement for the Recognition of the Qalipu Mi'kmaq Band to accommodate their disability, subject to providing proof of their residency in or around that geographic location, they are deemed to have been residents of that geographic location as of the date that the Qalipu Mi’kmaq First Nation was established.
3. You were required to move from a geographic location on the island of Newfoundland that is not in or around one of the geographic locations of the Mi’kmaq Group of Indians listed in Annex B of the Agreement for the Recognition of the Qalipu Mi'kmaq Band, within the period of 2006 to 22 September 2011.
Where objective evidence, verified by an appropriate Medical Provider, indicates an applicant was required to move within the period from 2006 to 22 September 2011 from a geographic location on the island of Newfoundland that is not in or around one of the geographic locations of the Mi’kmaq Group of Indians listed in Annex B of the Agreement for the Recognition of the Qalipu Mi’kmaq Band to accommodate their disability, consideration is to be given to evidence of prior residency on the island of Newfoundland in assigning up to three points under section C of the Point System. Applicants are still required to meet the overall threshold of 1 3 points. [Emphasis in the original]
[16] The Applicants provided the following additional documentation on March 18, 2020:
G. Collier: Medical Provider declaration describing a work related injury sustained in 1983, many years of WCB compensation, and diagnosis of permanent medical impairment in 2007. The declaration provides that G. Collier had surgery and was undergoing medical treatment between 2006-2011 in Nova Scotia under WCB, under restricted travel from Nova Scotia. Along with several other diagnoses, issues and surgeries, G. Collier was unable to travel outside Nova Scotia;
G. Collier: Nova Scotia Medical Doctor letter dated August 23, 2018 advising he is unable to travel due to medical conditions and his financial situation;
G. Collier: A letter from WCB Nova Scotia indicating permanent medical impairment due to workplace injury in 1986, including information on the lifetime benefits;
Letters from Chief Jasen Benwah dated May 3, 2018; September 21, 2019; and January 5, 2020; stating the Applicants are members in good standing since May 2009, keeping in regular contact with the community, with the January 2020 letters specifying: “Germain has maintained a regular connection with me since at least 2005 through telephone”; and “Alphonsus has maintained regular connection with me since at least 2008 through telephone, email and social media”;
Both Applicants: resubmitted documentation included in previous applications, assessments and reassessments;
Alphonsus Collier: Medical Provider declaration stating Alphonsus’ permanent injury sustained November 17, 2000, indicating travel restriction and an inability to travel alone, including a copy of Alphonsus’ medical file;
A. Collier: WSIB impairment record;
A. Collier: Ontario Medical doctor letter dated August 1, 2018 indicating he has a permanent and ongoing disability, and indicating he is restricted from travel;
A. Collier: CPP Disability Benefit letters;
A. Collier: Impact statement indicating an inability to travel due to disability and financial hardship related to travel costs, and an inability to leave Ontario due to Worker’s Compensation Insurance disability benefits being unable to transfer to another province.
[17] The following documents were provided, but previously missing from A. Collier’s file, and in accordance with the CHRC Settlement Agreement, were approved for inclusion in this reassessment:
A. Collier: letter from Gus Michalik describing Alphonsus’ instruction assistance in Oneida First Nation (OFN);
A. Collier: Aboriginal and Treaty Rights Access Passport Identification Card citizenship of the Mi’kmaq Nationimouw, Nova Scotia (MNNS), entitled to hunting, fishing, fowling and trade to show a continuation of cultural practices outside of Newfoundland; and,
A. Collier: Nova Scotia Wildlife Resources Card (NSWR) trained Hunter designation to show a continuation of cultural practices outside of Newfoundland.
[18] On November 10, 2020, the Applicants each received a decision letter from the Enrolment Committee [November 10, 2020 Decisions]. The Enrolment Committee received the Applicants’ supporting documentation for the reassessment applications and considered whether greater weight could be placed on the documentary evidence provided to award points for communications. The Applicants were still found unable to fulfill the requirements for group acceptance. On December 18, 2020, the Applicants each submitted an appeal notice to the Appeal Master.
[19] On December 24, 2020, counsel at the CHRC requested additional reasons for the Enrolment Committee’s November 10, 2020 Decisions to comply with the Minutes of Settlement. Counsel at the Department of Justice made the following confirmations: January 15, 2021, the Enrolment Committee will be directed to issue letters providing further detail; and, February 3, 2021, the Enrolment Committee will issue more detailed reasons, suspending any pending appeals.
[20] In spite of the appeals suspensions and lack of detailed reasons from the Enrolment Committee, the Applicants each received a letter from the Appeal Master on March 31, 2021 denying their appeals. The Appeal Master found the Enrolment Committee made no demonstrable error [March 31, 2021 Decisions].
[21] On September 20, 2021, the Enrolment Committee finally provided further detailed reasons to the Applicants [September 20, 2021 Reasons]. The affidavits describing communications did not provide adequate details about the communications or frequency. The September 20, 2021 Reasons affirmed the January 31, 2017 Decisions and noted that the Applicants had a right to appeal until November 3, 2021. They each did so.
[22] The Applicants provided a letter of support from Chief Jasen Sylvester Benwah, dated October 4, 2021, indicating the Applicants have been members of the Mi’kmaq band since May 5, 2009. The letter further states:
[The Applicants] maintained communications directly with me at least twice monthly, as he still does, usually either by messaging on Facebook or by email. This usually involved discussions about our cultural programs and other band developments. We shared information regarding our Mi’kmaq language goals as well as traditional land usage including hunting and fishing traditions.
We are recognized as being a part of the Federation of Newfoundland Indians and other affiliated bands which falls under the Newfoundland Group of Indians as per original residency requirements.
E. Procedural History
[23] Initially, the Applicants each filed a notice of application on May 6, 2021, seeking judicial review of their respective March 31, 2021 Decisions by the Appeal Master.
[24] On September 21, 2021, Associate Judge Horne ordered that the applications would be specially-case managed proceedings and managed together.
[25] On May 9, 2022, Associate Judge Horne issue an order granting a stay of proceedings until the Appeal Master’s determination of the Applicants’ appeals of the Enrolment Committee’s September 20, 2022 Reasons. Associate Judge Horne lifted the stay by order dated May 31, 2023, as the parties became aware in February 2023 that a final Appeal Master’s decision had been rendered by mail on April 28, 2022. On July 21, 2023, the Applicants filed amended notices of application challenging the April 28, 2022 Decisions, which are now before the Court.
III. Decision
[26] In the April 28, 2022 Decisions, the Appeal Master denied the appeals, finding that there had been no demonstrated error made by the Enrolment Committee. The Applicants demonstrated a disability that prevented them from travelling to Newfoundland from 2006 to September 22, 2011 with supporting documentation (Reassessment Ground 1). However, the Applicants did not provide sufficient information to establish evidence of communication within the same period that recognizes efforts to maintain a current and substantial connection with the Newfoundland Mi'kmaq Group or the maintenance of Mi’kmaq culture and way of life. The Appeal Master noted the October 4, 2021 letter from Chief Jasen Benwash and determined there were “no details on the period over which the communication occurred as required by section 28 of the Guidelines[.]”
There was also no evidence that the Applicants moved from Newfoundland between 2006 and September 22, 2011 to accommodate their disability (Reassessment Grounds 2 and 3). Therefore, no additional points were awarded for communications.
IV. Issues and Standard of Review
[27] The Applicants’ amended notices of application and memoranda suggest that the issues are the reasonableness of the April 28, 2022 Decisions and the authority of the FNI to enter into the Supplemental Agreement. The wording of the Notice of Application also suggests a breach of procedural fairness. In their affidavits of July 7, 2023, the Applicants frame the issues as:
The Appeal Master:
a. did not comply with the CHRC Minutes of Settlement;
b. did not accommodate us the Applicants' disabilities and thereby continues to discriminate against us;
c. failed to take into account important evidence concerning communication and practicing culture where we the Applicants live; and
d. was biased in the review because the evaluation was skewed by the overriding objective to disenfranchise status Indians thereby meeting Canada’s agenda of taking status away from some 10512 Indians.
[28] The Respondent frames the issues as follows:
Were the April 28, 2022 Decisions of the Appeal Master reasonable?
What is the relevance of Benoit v Federation of Newfoundland Indians Inc, 2023 NLSC 90?
[29] After considering the submissions of the parties, it is necessary that the Court addresses the following three issues:
Preliminarily, can the Court review the authority of FNI to enter into the Supplemental Agreement?
Were the April 28, 2022 Decisions of the Appeal Master reasonable?
Did the Appeal Master reasonably consider the evidence in support of community acceptance and cultural practices?
Did the Appeal Master comply with the Minutes of Settlement and the directive issued by the CHRC?
Did the Appeal Master breach procedural fairness requirements?
[30] The merits of the April 28, 2022 Decisions are reviewable on a reasonableness standard. A reasonableness review is a robust form of review that requires the Court to consider both the administrator’s decision-making process and the outcome of the decision (Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 [Vavilov] at paras 83, 87). A reviewing court must take a “reasons first”
approach to assess whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justifiable in relation to the relevant factual and legal constraints that bear on the decision (at paras 15, 99). The onus is on the applicant to demonstrate the unreasonableness of the decision (at para 100). A decision will be unreasonable where there are shortcomings in the decision that are sufficiently central or significant (at para 100). If the reasons of the decision-maker allow a reviewing court to understand why the decision was made and determine whether the decision falls within a range of acceptable outcomes, the decision will be reasonable (at paras 85-86).
[31] Any procedural fairness issue attracts a standard of review akin to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [CP Railway]; Mission Institution v Khela, 2014 SCC 24 at para 79). On a correctness review, no deference is owed to the decision-maker (Blois v Onion Lake Cree Nation, 2020 FC 953 at para 26). Rather, when evaluating whether there has been a breach of procedural fairness, a reviewing court must determine if the procedure followed by the decision-maker was fair, having regard to all the circumstances (CP Railway at para 54; Vavilov at para 77; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) at paras 21-28).
V. Preliminary Issue: Authority to Enter Into Supplemental Agreement
[32] The Applicants both submit that FNI did not have proper corporate authority to enter into the Supplemental Agreement and failed to protect the Applicants as members of the QMFN. The Applicants state they received their status as founding members of QMFN in September 2011 by a decision letter that specified “[i]f an appeal is not taken within thirty (30) days of the mailing of this decision, then the decision of this Committee is final and binding”
. Then in July 2013, government pressure forced the FNI to sign the Supplemental Agreement to remove non-resident QMFN members. The Applicants cite Benoit v Federation of Newfoundland Indians Inc, 2023 NLSC 90 [Benoit] in support of this submission, arguing that the Supreme Court of Newfoundland and Labrador found FNI engaged in oppressive conduct to founding members and that FNI did not have the proper corporate authority to sign the Supplemental Agreement. In this case, the FNI actions are also responsible for the signing of the Supplemental Agreement.
[33] The Respondent submits that Benoit does not apply to the Applicants’ case. In Benoit, the plaintiffs claimed oppression against Canada and the FNI, a not-for-profit corporation, under the Corporations Act, RSNL 1990, c C-36 (at para 7). The Supreme Court of Newfoundland and Labrador found that the plaintiffs were entitled to a remedy in oppression against the FNI, as FNI conducted its business in an unfair and prejudicial manner by passing a special resolution terminating membership of almost all members without notice and passing replacement by-laws without proper corporate authority (at paras 187, 201, 233, 235). The Applicants could be entitled to a remedy in oppression against FNI if FNI had terminated the Applicants’ FNI membership without notice. However, it has no bearing on the reasonableness of the April 28, 2022 Decisions, nor does it entitle the Applicants to be founding members of the QMFN.
[34] I agree with the Respondent that Benoit does not assist the Applicants. The amended notices of application and memoranda speak broadly to their experiences in the membership process, including aspects of their experiences that are not directly the subject of this judicial review. One such aspect is the Supplemental Agreement. The amended notices of application and memoranda do not challenge the Supplemental Agreement nor submit that an exception should apply for the Court to review, so the Applicants would not ordinarily be allowed to challenge the Supplemental Agreement (see Federal Courts Rules, SOR/98-106, Rules 301-302).
[35] It is appropriate to discuss the relevance of Benoit. The Supreme Court of Newfoundland and Labrador did not rule on the reasonableness of the Supplemental Agreement. Instead, the Court found it had jurisdiction as the plaintiffs’ private rights were legitimately engaged by the action and that the true nature of the claim was that of oppression and not for judicial review (at paras 136-137). The Court found that the FNI conducted its business in a manner which was unfair and caused prejudicial consequences to the plaintiffs, which entitled them to a remedy in oppression against the FNI (at para 235). First, the Court found that the plaintiffs’ reasonable expectations were violated by the FNI’s failure to comply with its original by-laws when purportedly passing the special resolution and terminating substantially all of the FNI’s membership without proper notice; and by then voting to adopt the replacement by-laws, without proper corporate authority (at para 218). Second, the Court found that the FNI knowingly conducted its affairs in a manner which resulted in highly prejudicial consequences suffered by the plaintiffs, namely their loss of status under the Indian Act, RSC 1985, c I-5 [Indian Act] (at para 225).
[36] This Court has also affirmed the reasonableness of the Minister’s decision to enter into the Supplemental Agreement and issue the Directive (Abbott v Canada (Attorney General), 2019 FC 1302, aff’d 2021 FCA 109 [Abbott]). This Court has also considered the reasonableness of specific provisions of the Supplemental Agreement and the legitimacy of amending the 2008 Agreement with the Supplemental Agreement (Wells v Canada (Attorney General), 2018 FC 483 [Wells]).
[37] I agree with the Respondent that Benoit may enable the Applicants to claim a remedy in oppression against the FNI, but it does not render the Supplemental Agreement reviewable in this matter. The Applicants potentially have a private law remedy available to them, but it is not relevant to this judicial review of the April 28, 2022 Decisions.
VI. Analysis
A. Were the April 28, 2022 Decisions of the Appeal Master reasonable?
(1) Applicants’ Position
(a) Evidence of Community Acceptance
[38] The Applicants provided sufficient evidence that meets the requirements of the Supplemental Agreement to be reinstated with 6(1)(b) status under the Indian Act and as founding members of the QMFN. In its April 28, 2022 Decisions, the Appeal Master concedes that both Applicants have demonstrated disabilities that prevented travel during the 2006 to 22 September 2011 period as required (Reassessment Ground 1). As such, greater weight should have been applied to communications, in accordance with Reassessment Ground 1:
“…up to six points for communications by placing greater weight on evidence of communications within the period of 2006 to 22 September 2011 to recognize efforts to maintain a current and substantial connection with the Mi’kmaq Group of Indians of Newfoundland.
[39] Two affidavits attested to within this prescribed time frame, dated February 24, 2010, demonstrate “regular visits and substantial community connection through frequent telephone calls, emails, facebook, greeting cards, and sustaining close family ties”
. Additionally, the additional two affidavits attested to January 2014, specify that not only were the Applicants born and raised in the relevant area, but also that they have maintained constant contact throughout. The fact that these affidavits reference family does not mean they were written by family members. Neighbours provided these affidavits.
[40] In addition, the letter provided by Chief Jasen Benwah, specifically the letter dated January 5, 2020, as clarification of evidence, not new evidence, was not considered in the Appeal Master’s Decision. This letter indicates regular contact with the community “since at least 2005”
(G. Collier), and “since at least 2008”
(A. Collier). These also fall within the applicable period.
[41] The Respondent stated the affidavits and letters provided did not also provide additional corroborative evidence such as emails, or phone records, and no weight was placed on affiant testimony. The Committee and Appeal Master did not consider that the letters from Chief Jasen Benwah were written from not only the Chief of the Benoit First Nation, but also a commissioner for oaths. Chief Jasen Benwah was not considered credible.
[42] Furthermore, Reassessment Ground 1 also states:
“Depending on the contents of the communication, the Enrolment Committee may consider awarding additional points for maintenance of Mi’kmaq culture and way of life.”
[43] Documentation from KMA, NCNS, OFN, and MNNS were provided to demonstrate a continuation of cultural practices outside the Applicants’ home community in Newfoundland. However, these were not considered by the Committee or Appeal Master. MNNS, NCNS, and KMA are Mi’kmaq. They show the Applicants’ continued efforts to stay connected to their Mi’kmaq culture outside their home community. As a landless band, the Applicants suggest they are even more entitled to practice their culture wherever they are located. NCNS and OFN show continuation of traditional culture in hunting, fishing, and training members of other Indigenous Nations where the Applicants are located. Instead, the Committee and Appeal Master designated these pieces of evidence as indicating ties to Nova Scotia, not properly grounding the Applicants’ claim to the correct Newfoundland area. This is additionally unreasonable since the QMFN originated from the NCNS.
[44] In addition to establishing ancestral descent, connection to a pre-confederation Mi’kmaq community, and establishing connection to a current Mi’kmaq community, BFN membership, in the initial application, the Applicants provided documents substantiating land ownership, and four affidavits each, indicating maintained contact with their community in Newfoundland. The Evaluation Committee determined the affidavits did not sufficiently establish community connection because they assumed the affidavits were from the Applicants’ relatives. Yet, there is nothing in the affidavits suggesting this is the case. Members of the Applicants’ immediate family, originating from the same family application package, who are residing in the appropriate location retain their status. The lack of available work in the Applicants’ home community forced them to move away to work to support their families. The Applicants were injured while working. The workplace injuries provide Workers Compensation Insurance payments as part of the Applicants’ incomes. If the Applicants relocate back to their home community, they will lose that income, as Worker’s Compensation Insurance payments are not transferrable out of the province in which they were gained.
[45] The Appeal Master erred in its finding that the Applicants did not meet the communication, cultural practice, and travel requirements. The Applicants provided several letters written by Chief Jasen Benwah and a councillor for the QMFN to show their communication with a member of the Newfoundland Mi’kmaq Group. The former Vice Chief Randy Drover of QMFN and Steve May, counsel for FNI and QMFN, identified these letters during a conversation with the Applicants as showing communication with the Newfoundland Mi’kmaq Group.
[46] Additionally, A. Collier identified a designation of 11 communication points on his initial points-based reassessment record prior to the disability declaration inclusions, while the written decision letters cite only 9 points.
[47] The Appeal Master failed to comply with the CHRC Minutes of Settlement. The CHRC Minutes of Settlement sought to address violations of the Applicants’ human rights, in particular discrimination based on disability. Where a disabled applicant is unable to travel to practice their culture and maintain connections to the QMFN community, the CHRC Minutes of Settlement provided that the applicant’s communication points can be supplemented to remove the discriminatory effect of the points evaluation.
[48] The Evaluation Committee and Appeal Master were directed to take disability and inability to travel into consideration and they did not. This is evidenced in both Applicants receiving the same exact denial letter word for word. This indicates the Respondent did not look at the file like they were supposed to, nor did they reach out to clarify or ask for specific information. This is a standard form dismissal with no additional weight consideration given to communication and cultural practice, as noted in the CHRC Directive, for the Applicants’ disabilities.
[49] The Applicants take issue with the Supplemental Agreement requiring the Applicants to be in Newfoundland to practice their culture with the Mi’kmaq community. First, the Applicants can practice their culture with the Mi’kmaq communities around them, as QMFN is a landless band. Randy Drover and Steve May, in conversations with the Applicants, agreed that the Applicants could practice their culture where they lived.
[50] Second, this requirement is a violation of the Applicants’ human rights, which is what the CHRC Minutes of Settlement sought to address. The Appeal Master also failed to consider appropriately the effect of the Minutes of Settlement as the Applicants’ disabilities prevent them from traveling without aid. As a result, the Appeal Master did not consider communication evidence between the Applicants and the QMFN that reflected an accommodation of the Applicants’ disabilities and inability to travel. This also extends to cultural practices.
[51] The Applicants provided evidence of a continuation of cultural practices within the Mi’kmaq and other Indigenous communities where the Applicants are located, as above. The purpose of the CHRC Minutes of Settlement was to prevent discrimination based on an inability to travel due to disability. For the Appeal Master to determine the Applicants’ cultural practices are not related to QMFN culture because they are not carried out in QMFN’s “landless”
territory is unreasonable and entirely contrary to the CHRC Minutes of Settlement.
[52] The Applicants regularly attend powwows, enjoy culture, communicate regularly with the Chief of BFN about culture, hunt, and fish, and learn about cultural medicines where they are located. The United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] promises rights to Indigenous identity. The Applicants contend that Mi’kmaq identity is their culture, which they practice where they are located, and goes to the heart of their Indigenous identity. An inability to travel due to disabilities necessitates that the Applicants practice their culture outside the QMFN area. The Applicants state their Indigenous culture is what is keeping them as active and healthy as they can be in the context of their disabilities. The Applicants state staying connected to their QMFN community and culture is what keeps them alive.
[53] The Appeal Master was obligated to consider the Applicants’ whole files, yet there is no evidence in the record showing this is what occurred. In particular, Associate Judge Horne’s directive to consider the letter of Chief Jasen Benwah providing clarification of the timeline of communications is not reflected in the Appeal Master’s April 28, 2022 Decisions. The Appeal Master cited the letter dated October 4, 2021, providing clarification on the kinds of communications about culture, language, hunting and fishing, and clarification of the BFN as part of the Federation of Newfoundland Indians. However, the Appeal Master gave no consideration to the clarification letter dated January 5, 2020, providing the dates and frequency of communications. This is unreasonable and does not comply with the directives of the CHRC or Associate Judge Horne.
(2) Respondent’s Position
[54] The Respondent made several preliminary submissions. First, the principles of modern treaty interpretation apply to the enrolment process arising from the 2008 Agreement (Wells at para 53). Second, the Applicants’ amended notices of application challenge the Appeal Master’s March 31, 2021 and April 28, 2022 decisions but the Respondent maintains that the April 28, 2022 Decisions are the final decisions and the subject of this judicial review. Third, in respect of the March 31, 2021 Decisions, the Applicants were afforded the relief set out in the Notice of Applications, namely reconsideration as the April 28, 2022 Decisions are the final decisions from the Appeal Master.
(a) Evidence of Community Acceptance
[55] The Applicants bore the responsibility of providing evidence of a current and substantial connection with the community, despite their physical absence from the location. Non-resident applicants were required to provide evidence demonstrating frequent visits and/or communications (defined in “ANNEX A to the Supplemental Agreement”
, part 13, as occurring on a regular basis over an extended period prior to or during the 2008 Agreement) with resident members of the Mi’kmaq community in Newfoundland; maintenance of the Mi’kmaq culture or way of life by way of 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 (2008 Agreement, s 4.1(d)(ii); Annex A: Enrolment Committee Guidelines, s 25).
[56] The Applicants were provided information about the assessment of applications and examples of documentation on multiple occasions. For example, this information was included in the following documents: a letter dated November 6, 2013 (re self-identification and group acceptance informing the Applicants that their applications would be reassessed in accordance with the 2008 Agreement and Supplemental Agreement; a letter dated January 31, 2017 informing the Applicants that the Enrolment Committee denied their applications (“no further document, other than the Appeal Notice, will be accepted in support of your appeal”
); a letter dated February 10, 2020 (re disability documentation informing the applicants of the opportunity to request reassessment); and a letter on November 10, 2020 informing the Applicants of the Enrolment Committee’s decision (“Please also note that no document(s), other than the Appeal Notice, will be accepted in support of your appeal”
).
[57] The Applicants had multiple opportunities to bolster their applications by submitting additional evidence. First, the Supplemental Agreement provided the Applicants with an opportunity to send in documentation not already submitted to the Enrolment Committee to address the evidentiary requirements (November 6, 2013). Second, the Applicants were advised that they could submit additional documentation to meet the criteria of self-identification and group acceptance as a result of the CHRC Minutes of Settlement (February 10, 2020). Third, the Applicants submitted an additional document dated October 4, 2021 to the Appeal Master, despite it not being before the Enrolment Committee in its September 20, 2021 Decisions.
[58] It was reasonable for the Appeal Master to conclude that the Enrolment Committee had not erred based on the evidentiary record before it. The Appeal Master found that there was no error in the Enrolment Committee’s September 20, 2021 Decisions providing detailed reasons. The Appeal Master reviewed and considered the thorough September 20, 2021 Decisions which identified the insufficiencies in the Applicants’ evidence of communications, as it did not comply with the requirements for evidence of communication or connection. Specifically, there were two affidavits that did not describe the communications and their frequency; two affidavits that did not provide details of visits or information as to whether communications occurred before September 22, 2011; three letters from Chief Jasen Benwah lacking details as to the occurrence and frequency of communications; a letter from the Native Council of Nova Scotia that did not reflect a connection to the Newfoundland Mi’kmaq Group; and a letter from another individual that did not reflect a connection to the Newfoundland Mi’kmaq Group. The Appeal Master even agreed to review a letter from Chief Jasen Benwah that was not part of the appeal record as it was dated October 4, 2021, but the Appeal Master found that it still did not provide the necessary details to establish group acceptance.
[59] In summary, the evidentiary record on communication lacks sufficient detail on the period over which communications occurred, involvement in the community, and frequency of communications. The record on the maintenance of the Mi’kmaq way of life also relates mostly to the Native Council of Nova Scotia rather than showing a connection to the Newfoundland Mi’kmaq Group.
(b) Compliance with the Minutes of Settlement and the directive issued by the CHRC
[60] Contrary to the Applicants’ assertions, the Appeal Master properly complied with all Directives and Agreements. The Appeal Master noted that the Applicants demonstrated that they had disabilities preventing them from travelling between 2006 and September 22, 2011. The Appeal Master reviewed and considered the Enrolment Committee’s treatment of the documentation provided by the Applicants, which found that the Applicants did not provide sufficient evidence of communication to establish a current and substantial connection to the Newfoundland Mi’kmaq Group between 2006 and September 22, 2011. The Appeal Master reviewed and considered the Enrollment Committee’s treatment of the medical documentation provided by the Applicants. It was reasonable for the Appeal Master to conclude there was insufficient evidence to establish proof of acceptance by the Newfoundland Mi’kmaq Group. As the communication evidence had no weight, the Appeal Master reasonably concluded no greater weight could be given.
(3) Conclusion
[61] The April 28, 2022 Decisions were reasonable.
[62] This Court has jurisdiction to review membership decisions made by the Enrolment Committee and the Appeal Master (Foster v Canada (Attorney General), 2015 FC 1065 at paras 24-27; Howse v Canada (Attorney General), 2015 FC 1063 at paras 18-21; Wells at paras 43-46; Abbott at paras 103-106).
[63] There have been many decisions made on whether the Applicants qualify for membership of the QMFN. However, the decisions under review are the April 28, 2022 Decisions by the Appeal Master, which arose in the context of the CHRC Minutes of Settlements and the Enrolment Committee’s reassessment of whether greater weight could be given to communications as the Applicants’ disabilities prohibited them from traveling from 2006 to September 22, 2011. In light of the nature of the reassessment, the main issue for the Appeal Master to consider was the Enrolment Committee’s decision that:
There was no basis to assign any greater weight to evidence of frequent visits and/or communications pursuant to the Directive from the Implementation Committee to the Enrolment Committee Regarding Accommodations for the Applicants involved in the Settlement of the Canadian Human Rights Complaints since there was no evidence upon which any additional points could be awarded under this category.
[64] In finding that the Enrolment Committee made no demonstrated error in its September 20, 2021 Decisions, the Appeal Master considered the materials submitted to the Enrolment Committee, its decision, the appeal notice, documentation submitted in response to the reassessment letter dated February 10, 2020, and the October 4, 2021 letter from Chief Jasen Benwah.
[65] The onus is on the Applicants to produce sufficient evidence to meet the membership requirements. The Applicants challenge the Appeal Master’s compliance with the CHRC’s Minutes of Settlement to accommodate the Applicants’ disabilities and consideration of the evidence on communication and practicing culture. Specifically, the Applicants view the communication evidence as sufficient to show communication with a Newfoundland Mi’kmaq Group.
[66] The April 28, 2022 Decisions were in the range of reasonable and justifiable decisions in light of the evidentiary record before the Appeal Master (Vavilov at paras 86-87). The Supplemental Agreement and letters dated November 6, 2013 identified how documents would be assessed and provided examples of acceptable documentation. The various levels of decisions provided to the Applicants by the Enrolment Committee and Appeal Master further identified how the communication documentation submitted by the Applicants lacked the requisite level of specificity required by the Supplemental Agreement. The Appeal Master in the April 28, 2022 Decisions found that the Applicants did not provide sufficient information establishing evidence of communication within the period of 2006 to September 22, 2011 that recognizes efforts to maintain a current and substantial connection with the Newfoundland Mi’kmaq Group or the maintenance of Mi’kmaq culture and way of life. The Appeal Master demonstrated alertness and sensitivity to the Minutes of Settlement but ultimately found that the Applicants had not shown that the Enrollment Committee made an error in its September 20, 2021 Decisions.
[67] The Applicants’ remaining arguments challenge the decision-maker’s weighing of the evidence, which is not the role of the reviewing court (Vavilov at para 125). Nevertheless, I agree that it was reasonable for the Appeal Master to find there was insufficient evidence and that the Appeal Master did not ignore evidence. The Applicants provided two additional affidavits from QMFN members both stating generally that the Applicants keep in touch through phone, email, or texting and that they call family in Stephenville once a week. However, the Applicants do not provide the requisite detail concerning the relevant time period over which they communicated with the Newfoundland Mi’kmaq Group. The affidavits submitted in support of the original application lack similar detail. The letters from Chief Jasen Benwah also do not provide detail on the frequency or occurrence of the communications.
[68] Furthermore, the Appeal Master reasonably considered the evidence in the record on maintenance of Mi’kmaq culture and way of life. The Applicants assert that traveling is erroneously required to show maintenance of Mi’kmaq culture and way of life under the 2008 Agreement and Supplemental Agreement, despite the evidence that the Applicants can practice culture outside Newfoundland. The Applicants submitted letters and information from the Native Council of Nova Scotia. In my view, these letters by themselves do not demonstrate a connection to the Mi’kmaq culture and way of life and the Newfoundland Mi’kmaq Group. G. Collier submitted in the supplemental information for the Declaration of Disability that he provided his Native Council of Nova Scotia card “to show that I still carry on my Mi’kmaq way of life through hunting and fishing to present for my family as I did for 20 plus years as a commercial fisher…”
as it provides a privilege to hunt and fish. He also submitted that he and his three sons “grew up hunting, fishing and picking blue berries near Cape Smokey Cape Breton Nova Scotia”
and that “Jasen Benwah’s letters also prove culture”
. However, these documents similarly lack specificity about maintenance of Mi’kmaq culture and way of life through knowledge of Mi’kmaq culture and participation in cultural, religious, ceremonial, and traditional activities of the Newfoundland Mi’kmaq Group.
[69] Based on the record before the Appeal Master, I find it was reasonable for the Appeal Master to conclude, and bearing in mind their disabilities, that the Applicants did not provide sufficient evidence and explanation for their maintenance of a current and substantial connection with the Newfoundland Mi’kmaq Group and the Mi’kmaq culture and way of life.
B. Did the Appeal Master breach procedural fairness requirements?
(1) Applicants’ Position
[70] In the amended notices of application, the Applicants each identify one ground for the application as follows:
The Applicant is entitled to have his Application considered fairly, by an impartial tribunal and in accordance with the criteria as established by the Canadian Human Rights Settlement Agreement between [Applicant] &Her [sic] Majesty the Queen in right of Canada (HMTQ) and the Qalipu Mi'kmaq First Nations.
[emphasis added.]
[71] In the memoranda, the Applicants only note, “I have been treated unfairly and unjustly in this process as I have been denied numerous times based off the point system that I do not meet certain requirements to retain my status…”
. The Applicants’ affidavits further state the legal argument that the Appeal Master “was biased in the review because the evaluation was skewed by the overriding objective to disenfranchise status Indians thereby meeting Canada’s agenda of taking status away from some 10512 [
sic] Indians”
. In A. Collier’s affidavit, he states that he had a phone call with a senior counsel at the Department of Justice in late October 2019 in which she stated that the Applicants would not be regaining their status ever. This conversation showed the bias that Canada has towards the Applicants with disabilities under the Minutes of Settlement.
[72] At the oral hearing, when the Court asked about clarifying the position on procedural fairness, A. Collier answered that this ties back to the Supplemental Agreement and that there was bias. The Applicants claim this bias is evidenced in the composition of the Evaluation Committee, made up of two FNI members, two government representatives, and one independent member. Also, in terms of the decision, only one government member is required to disagree with the rest of the committee in order to ground a denial.
[73] Government Senior Counsel, Kelly Peck, made comments to the Applicants after mediation that they were never getting their status back. In addition, government workers who spoke up for the Applicants were demoted from their positions after providing their support. The Applicants also submit that they attempted to contact the Appeal Master, as the letter stated “please call if you have any questions”
. The Applicants wanted to have a conversation with the Appeal Master in support of their applications, to explain their file, request and provide further clarification and answer any questions the Appeal Master may have. The Applicants were laughed at.
[74] In addition, in their oral arguments the Applicants cite the November 6, 2013 letter, which states a brochure attachment to the letter provided clarity on the documentation requirements for the reassessment. However, the Applicants state no brochure was included with the letter, as evidenced in the CTR and both parties’ records. The Applicants acknowledge Abbott and stated this additional information was also not available to be found online. The Applicants were not advised that sworn affidavit testimony and letters provided from the Chief of the BFN were insufficient alone and required pictures, screenshots or telephone records from period in question, more than 10 years prior, to be believed. Affidavits attesting to communications within a specific time period by peoples whose credibility was not challenged by the Evaluation Committee nor Appeal Master ought to have been accepted. If the credibility of these peoples was at issue, the Applicants ought to have been advised to that effect. In fact, the Applicants were advised by previous government counsel that this affidavit and letter evidence was sufficient.
(2) Respondent’s Position
[75] The Respondent does not make submissions on procedural fairness.
(3) Conclusion
[76] The Appeal Master did not breach procedural fairness requirements.
[77] The Applicants have not properly brought the issue of procedural fairness before the Court beyond broadly stating that they have been “treated unfairly and unjustly”
in their memoranda. However, despite the absence of specific submissions from the Applicants on procedural fairness, I will briefly canvass this topic given that the Applicants are self-represented.
[78] The Applicants each only state that they “have been treated unfairly and unjustly in this process as I have been denied numerous times based off the point system that I do not meet certain requirements to retain my status”
. While the language of fairness or lack thereof is used, in my view, the submissions go more towards the reasonableness of the Decisions.
[79] Upon review of the record, I note that the Applicants received notice of the decision to be made and the case to meet, and they both had opportunities to respond. The November 6, 2013 letter notifying the Applicants that their applications would be reconsidered in light of the Supplemental Agreement provided information on the assessment of applications and examples of acceptable documentation.
[80] The amended notices of application reference the right to have the applications decided fairly by an impartial tribunal, but I note that the Applicants have not raised the issue of whether the Appeal Master was biased in their memoranda. There is insufficient evidence before the Court demonstrating a reasonable apprehension of bias. The test for bias is a high standard and involves asking, “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”
(Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC)). It is trite law that bias is a serious allegation that should not be made lightly. There is nothing in the record indicating bias on the part of the Appeal Master and the Applicants have not properly brought any issues concerning impartiality before the Court.
VII. Conclusions
[81] For the reasons above, the applications for judicial review are dismissed. The Applicants have not demonstrated a reviewable error in the merits of the April 28, 2022 Decisions in terms of its compliance with the CHRC Minutes of Settlement nor in its points assessment on communication and maintenance of Mi’kmaq culture and way of life. The Applicants also have not shown that there was a breach of procedural fairness.
[82] The Respondent has not sought costs in either application and no costs are ordered.
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