Shawn Benoit, Matthew Anderson, Marie Tapp Melanson, Bobbie Tapp Goosney, Paul Bennett [DISCONTINUED] , v. Jennifer, 2023 NLSC 90

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Benoit v. Federation of Newfoundland Indians Inc. , 2023 NLSC 90 Date : June 19, 2023 Docket : 201801G1147 Between: Shawn Benoit, Matthew Anderson, Marie Tapp Melanson, Bobbie Tapp Goosney, Paul Bennett [DISCONTINUED] , and Jennifer Sue Le Roux Plaintiffs And: Federation of Newfoundland Indians Inc. First Defendant And: His Majesty the King (Canada) Second Defendant Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 16-20, 23-25, 31, 2023; February 1, 2023

Summary:

The Plaintiffs claim oppression against the Defendants and seek a remedy pursuant to

section 371 of the Corporations Act, R.S.N.L.1990, c. C-36. HELD: The Plaintiffs are entitled to a remedy in oppression against the First Defendant, but not the Second Defendant. The Plaintiffsare not entitled to the remedy of rescission of the Supplemental Agreement. Appearances: Keith S. Morgan and Anna Morgan Appearing on behalf of the Plaintiffs Philip J. Buckingham and Adam G. Ronan Appearing on behalf of the First Defendant Kelly A. Peck and Corinne Bedford Appearing on behalf of the Second Defendant Authorities Cited: CASES CONSIDERED: Federation of Newfoundland Indians v.

Canada, 2011 FC 683; Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2018 SCC 31; Davis v. Canada (Attorney General), 2008 NLCA 49; Wells v. Canada(Attorney General), 2018 FC 483; Benoit v. Federation of Newfoundland Indians, 2018 NLSC 141; Canada (Attorney General) v.TeleZone Inc., 2010 SCC 62; Howse v. Canada (Attorney General), 2015 FC 1063; Fillatre Estate v. Fillatre, 2016 NLCA 69; Jaska v.Jaska (1996), (MB CA), 141 D.L.R. (4th) 385 (Man. C.A.); Waxman v. Waxman (2004), (ONCA), 186 OAC 201 (C.A.); BCE Inc. v. 1976 Debentureholders; Farrish v.

Delta Hospice Society, 2020 BCCA 312; Abbott v. Canada(Attorney General), 2019 FC 1302, aff’d 2021 FCA 109, leave to appeal dismissed at [2021] SCCA No. 300; First Nation of NachoNyak Dun v. Yukon, 2017 SCC 58 STATUTES CONSIDERED: Indian Act, RSC 1985, c. I-5; Corporations Act, RSNL 1990, c. C-36; Limitations Act, SNL 1995, c. L-16.1; The Companies Act, RSN 1970, c. 54; Federal Courts Act, RSC 1985, c. F-7; Crown Liability and Proceedings Act, RSC 1985, c.C-50 TEXTS CONSIDERED: Order Amending the Qalipu Mi’kmaq First Nation Band Order,

(2018) C Gaz I, Vol 152, No 20, at 1636 REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] On June 23, 2008, the Federation of Newfoundland Indians Inc. (the “FNI”) and the Government of Canada (“Canada”)executed an agreement (the “Settlement Agreement”) to establish the Qalipu Mi’kmaq First Nation Band (the “QMFNB”) as a non-reserve status band for the Mi’kmaq Group of Indians of Newfoundland. The Settlement Agreement had been ratified through a vote ofthe FNI membership. The Plaintiffs were members of the FNI. [2] On September 22, 2011, the QMFNB was created by an Order-in-Council (the “Recognition Order”).

At that time, 23,877members were registered as Founding Members of the QMFNB, according to the Canada Gazette,

Part I, Volume 152, Number 20,(May 19, 2018): Order Amending the Qalipu Mi’kmaq First Nation Band Order (the “2018 Canada Gazette”).

[ 3 ] Pursuant to the enrolment process undertaken in accordance with the Settlement Agreement, the Plaintiffs [1] had been approved to be included on the list of the Founding Members of the QMFNB. As a result, the Plaintiffs were registered with status under section 6(1) (

b) of the Indian Act , R.S.C. 1985, c. I-5 . [ 4 ] Under the Settlement Agreement, the deadline for receipt and assessment of applications for membership was November 30, 2012. By that date, in excess of 100,000 applications for Founding Membership had been received. An extension of time was required to deal with the volume of applications. As a result, on June 30, 2013 the FNI and Canada entered an agreement supplemental to the Settlement Agreement (the “Supplemental Agreement”). [ 5 ] Pursuant to the Supplemental Agreement, all unassessed applications were to be assessed.

In addition, a process of reassessment was to be undertaken with respect to all those who had already been approved and granted Founding Member status. The assessment and reassessment process involved the use of a new points system described in a directive to the Enrolment Committee; the directive was annexed to the Supplemental Agreement. [ 6 ] As a result of the reassessment process under the points system, the Plaintiffs lost their status as Founding Members of the QMFNB; and they therefore lost their section 6(1) (

b) status under the Indian Act . The Plaintiffs’ loss of section 6(1) (

b) status detrimentally affected the Plaintiffs’ ability to pass status onto their children. [ 7 ] The Plaintiffs claim oppression against the Defendants, and they seek a remedy pursuant to

section 371 of the Corporations Act , RSNL 1990, c. C-36 . The Plaintiffs assert that the oppressive conduct arises from the process engaged by the FNI to truncate the FNI’s membership, and to then enter the Supplemental Agreement. The primary remedy sought by the Plaintiffs is rescission of the Supplemental Agreement. [ 8 ] The Defendants deny oppression. Further, the Defendants challenged the Plaintiffs’ claim by raising issues including: jurisdiction, standing and the limitation period. [ 9 ] The parties proceeded to trial.

The Plaintiffs testified at trial, along with several other witnesses called by the Plaintiffs. The Defendants did not call any witnesses. Numerous documents were entered as exhibits. ISSUES [ 10 ] The issues to be decided are, as follows: 1. Does this Court have jurisdiction to hear this matter? 2. Do the Plaintiffs have standing to advance their claim? 3. Is the Plaintiffs’ claim barred by the Limitations Act , S.N.L. 1995, c. L-16.1 ? 4. Have the Plaintiffs established oppression? 5. What remedy, if any, is appropriate?

FACTS ESTABLISHED BY THE EVIDENCE Background [ 11 ] When our province joined Canada in 1949, the Mi’kmaq on the Island of Newfoundland were omitted from status recognition. Years of struggle for status recognition ultimately led to the creation of the FNI. [ 12 ] On August 20, 1984 the FNI was incorporated as a not for profit corporation under The Companies Act , R.S.N. 1970, c. 54.

The FNI was incorporated primarily for the purpose of achieving status recognition for the Mi’kmaq of Newfoundland, and to pursue registration for the FNI’s members as Status Indians. [ 13 ] In August of 1988, the FNI was continued under the Corporations Act . The FNI’s purposes were listed in

schedule A of the Articles of Continuance, as follows: The Corporation is established for the following purposes and shall restrict itself to such activities as in its opinion, directly or indirectly, furthers such purposes: (

a) To organize and unite the Indian people throughout Newfoundland. (

b) To carry out programs consistent with those of a charitable organization for the advancement of the level of education, training and opportunity among the Indian people of Newfoundland. (

c) To establish and maintain a fund to provide legal guidance for the protection of the legal and constitutional rights of Indian people and to protect the civil rights of all people of Indian Ancestry. (

d) To carry out programs for the relief of poverty for recreational and cultural programs. (

e) To aid and assist all Indian People in any lawful manner which is beneficial to them. (

f) To receive and acquire gifts, bequest or devise transfer or otherwise property of every nature and description in connection with

any of the objects of the Federation. (

g) To invest and deal with such monies of the Federation as are not immediately required in such a manner as may from time to time be obtained and determined. (

h) To subscribe to and become a member of and co-operate with other organizations whose objects are altogether or in part similar to those of the Federation. (

i) To carry out whatever programs are necessary for the purpose of assisting Indian People in improving their living standards in the community in which they live. (

j) To hire, engage or otherwise secure the services of persons or firms promotions and carrying out of any of the objects of the Organization, when those services cannot be found within the Association, then and only then can the Association go outside for those services. (

k) To co-operate with the Grand Council and participate in their meetings. (

l) To negotiate on behalf of the MicMacs of Newfoundland with any level of government in order to pursue the recognition of the rights of the MicMacs of Newfoundland. (

m) To define and regulate the use of MicMac Territory in Newfoundland. (

n) To pursue registration for MicMacs within the Federation for the purpose of coming under benefits derived from the Department of Indian Affairs. (

o) To ensure Land Claims settlements are beneficial to all MicMacs within the Federation. (

p) To pursue registration of MicMacs within the Federation as Status Indians for those individuals who wish to do so. (

q) To do all such other things as are incidental or conductive to the attainment of the objects and exercise of the powers of the Federation. PROVIDED THAT the Corporation: (

a) shall not undertake any activities that would result in the revocation of its registration as a charity or as a public foundation for purposes of the Income Tax Act ; (

b) shall not permit its directors, trsutees ( sic ), officers or employees to be comprised so that a majority of the same are related or do not deal at arms length; (

c) shall not make non-qualified investment as defined by

Section 149 of the Income Tax Act . [ 14 ] In 1989, the FNI commenced a Federal Court action against Canada, seeking status recognition for its members under the Indian Act . The Federal Court action led to negotiations between the FNI and Canada. The negotiations culminated in an agreement in principle entitled as an “Agreement for the Recognition of the Qalipu Mi’kmaq Band”.

This was the Settlement Agreement. [ 15 ] The Settlement Agreement ultimately established the QMFNB as a landless band for the Mi’kmaq of Newfoundland who had a current and substantial connection to one of the identified communities in Newfoundland, as listed on Annex B to the Settlement Agreement. The Settlement Agreement was subject to a ratification requirement. [ 16 ] Annie Randell was a member of the FNI’s negotiating committee for the Settlement Agreement. Ms. Randell had been the corporate secretary and general manager of the FNI, and she eventually became the chief executive officer of the QMFNB. Ms.

Randell’s testimony provided background context for the negotiations respecting the Settlement Agreement. [ 17 ] Ms. Randell’s evidence was that Canada had wanted the Settlement Agreement to be inclusive of all the Mi’kmaq of Newfoundland, not just those who were FNI members. Consequently, the Settlement Agreement was entered for the purpose of providing status recognition for all people with Mi’kmaq ancestry of Newfoundland who met certain criteria, not just FNI members. [ 18 ] Ms. Randell explained that status recognition would enhance the social, economic and cultural conditions of the Mi’kmaq of Newfoundland.

Because the QMFNB was to be a landless band, benefits and programming would be off reserve. As well, those enrolled as Founding Members could be registered under section 6(1) (

b) of the Indian Act . [ 19 ] The Settlement Agreement would not be in effect until ratified by the parties to the agreement. This ratification requirement was described in

chapter 9 of the Settlement Agreement at clauses 9.1 to 9.3 which state, as follows: 9.1 This Agreement must be ratified in accordance with this

Chapter as a condition precedent to its validity. Unless so ratified by the Parties, this Agreement has no force or effect. When ratified by both Parties in accordance with this Chapter, this Agreement shall be binding on the Parties and constitute the final agreement, subject to

section 8.1 of this Agreement.

9.2 The FNI shall have ratified this Agreement when: (

a) it has been approved by the FNI members, and (

b) the President of the FNI, duly authorized by a resolution of the board of directors, has signed it. For the purpose of paragraph (a), this Agreement shall be deemed to be approved by the members of the FNI if a majority of the votes cast by eligible voters at the ratification vote conducted in accordance with the process set out in this

Chapter is in favor of it. 9.3 Canada shall have ratified this Agreement when the Minister, authorized by the Governor in Council, has signed this Agreement. [ 20 ] As noted in clause 9.2 above, the FNI ratification required approval by a majority vote of the FNI members. In addition, the FNI ratification required that the President of the FNI sign the agreement, as authorized by a resolution of the board of directors of the FNI. [ 21 ] The vote for ratification by the members of the FNI took place on March 30, 2008. Ms.

Randell explained how the voting process was conducted in a manner similar to a provincial election, including the use of polling stations and ballots. Ultimately, more than 90 per cent of the FNI members who voted, voted in favour of the Settlement Agreement. [ 22 ] The minutes of the FNI board of director’s meeting on April 18, 2008 indicate that the result of the ratification vote was accepted by the board of the FNI. A director’s resolution, also dated April 18, 2008 and signed by Ms.

Randell, indicated that the ratification vote of FNI members was conducted in accordance with the Settlement Agreement, and the FNI members approved the Settlement Agreement; and also that the President of the FNI was authorized to sign the Settlement Agreement. [ 23 ] On June 23, 2008, the Settlement Agreement was signed by the Chief of the FNI and the Minister of Indian Affairs and Northern Development. [ 24 ] At the time the Settlement Agreement was negotiated, it was not known how many persons would apply as Founding Members of the new band.

Based on a 2004 survey of FNI members, there was a suggestion of the potential for 12,500 applications for status recognition based on affiliated band membership. However, Ms. Randell explained that that number was not relevant because one band had not provided a membership list; and also because Canada wanted the QMFNB to be inclusive of all Mi’kmaq persons meeting the criteria, not just FNI members. [ 25 ] The Settlement Agreement set forth a two-stage enrolment process. The first stage of enrolment was to be conducted from the period December 1, 2008 to November 30, 2009, with a possible six-month extension.

The second stage would be for the 36 months following the first stage, being December 1, 2009 to November 30, 2012. [ 26 ] An Enrolment Committee was established to assess applications for membership in the QMFNB, and to determine if applicants met the eligibility criteria set forth in the Settlement Agreement. The Enrolment Committee was comprised of two representatives from Canada, two Mi’kmaq representatives, and one independent Chair.

Decisions of the Enrolment Committee could be appealed to an Appeal Master. [ 27 ] According to the Settlement Agreement, the First Founding Members’ list of the QMFNB was comprised of the applicants who were assessed during the first stage of enrolment, and who met the eligibility criteria. If during the period of the first stage of enrolment the First Founding Members’ list achieved a number greater than, or equal to, 50% of the number of FNI members at the time the Settlement Agreement was initialed, then the Minister would recommend to the Governor-in-Council that there be a Recognition Order for the QMFNB.

The QMFNB would initially be comprised of the individuals on the First Founding Members’ list. As indicated by Ms. Randell, that threshold was well achieved in the first stage of the enrolment period. [ 28 ] The second stage of enrolment was to take place over a period of 36 months from December 1, 2009 to November 30, 2012, and a Second Founding Members’ list was to be presented by the Enrolment Committee. According to the Settlement Agreement, the

schedule to the Recognition Order would then be amended to include the Second Founding Members’ list as the Founding Members of the QMFNB. [ 29 ] In July of 2009, more than four months before the end of the first stage of the enrolment process, a legal opinion considering the future of the FNI was provided by the FNI’s legal counsel, Stephen May, to the FNI’s board of directors. As confirmed by Ms.

Randell’s evidence, at that point in time the FNI was well on track for achieving its primary purpose being status recognition of its members; and the FNI wanted to determine how it could continue once the QMFNB was formed. Ms. Randell explained that funding for programs was to end when the QMFNB was formed; and that the FNI had to determine how it would meet its obligations, including its financial obligations to its employees, and what to do with the FNI’s assets. Consequently, the legal opinion dated July 6, 2009 canvassed four different scenarios respecting the future role of FNI.

These four options were stated in the legal opinion to be, as follows: “(

i) maintaining the FNI in its current form; (ii) dissolving the FNI; (iii) maintain the FNI solely for the purpose of fulfilling any of its outstanding obligations; or (iv) continue the FNI in an amended form with its membership criteria being amended to include solely the membership of the new

Band.” [ 30 ] Legal counsel recommended the third option to the Board, being to continue the FNI as a “skeletal” organization solely to fulfill the FNI’s legal and financial obligations. According to the legal opinion, this option required changes to the governance structure, with amendments to the corporate articles and bylaws. The proposed amendments were attached to the legal opinion, and that opinion stated as follows: “I attach under Tabs [ sic ] 1 a copy of the FNI’s current Articles of Continuance and under Tab 2 its current By-Laws.

The former identifies the basis upon which the corporation has been formed while the latter defines the rules under which the corporation is governed. I attach under Tab 3 a proposed Articles of Amendment outlining the proposed purpose of continuing the corporation should this proposal be adopted. I attach under Tab 4 a proposed By-Law addressing how the corporation would be governed. You will note that membership in the corporation will be dramatically changed to include, as members, only those elected members to the Council of the Band.

This will ensure continuity in the leadership of the band and the FNI while the FNI proceeds to fulfill its outstanding legal obligations.” [ 31 ] As noted by the legal opinion, the proposed amendment to the FNI’s existing by-laws would “dramatically” change the membership in the FNI. Membership in the FNI had originally been determined by membership in one of the bands affiliated with the FNI. The proposed new by-laws would have the effect of terminating the membership of almost all of the FNI’s several thousand members; and restricting FNI membership to the members of the Band Council of the QMFNB.

In his legal opinion, FNI’s counsel warned this option could lead to a claim for an oppression remedy. [ 32 ] At the Annual General Assembly (the “AGA”) held on October 24, 2009, voting members of the FNI purported to pass a special resolution to achieve the third option recommended by legal counsel (the “Special Resolution”). The Special Resolution resolved to transfer the undertakings of the FNI to QMFNB, when the QMFNB was established.

The Special Resolution further resolved to amend the articles of continuance and to replace the then existing by-laws with the new by-laws, once the QMFNB was established. [ 33 ] I will refer to the by-laws in the form they existed immediately prior to the Special Resolution as the “Original By-Laws” – (recognizing that they had been previously amended in 2008).

I will refer to the amended new by-laws attached to the Special Resolution as the “Replacement By-Laws”. [ 34 ] Once the Replacement By-Laws came into effect, the membership of the FNI would be truncated to be comprised solely of the Band Council of the QMFNB. The members of the FNI were not provided with notice of termination of their membership. [ 35 ] The FNI concedes that the Special Resolution had not been circulated prior to the October 2009 AGA; and that this contravened the notice requirements of Original By-Law 8.07.

Nevertheless, at that AGA the voting members proceeded to vote to pass the Special Resolution. [ 36 ] To elaborate, as reflected in the evidence, including in the minutes of the AGA on October 24, 2009, there were two special resolutions purportedly passed by those members of the FNI entitled to vote at an AGA.

The Special Resolution was identified in the minutes as “Resolution #1” and stated, as follows: Resolution #1 WHEREAS the Qalipu Mi’kmaq First Nation Band is to be formed pursuant to a 23 June 2008 Agreement between the Government of Canada and The Federation of Newfoundland Indians; AND WHEREAS the creation of the Qalipu Mi’kmaq First Nation Band will advance the interests of those Mi’kmaq people who have a substantial connection to current Mi’kmaq communities on the island of Newfoundland and wish to become members of the Qalipu Mi’kmaq First Nation Band; AND WHEREAS the Qalipu Mi’kmaq First Nation Band will provide the means to meet and continue the objectives of The Federation of Newfoundland Indians; AND WHEREAS the formation of the Qalipu Mi’kmaq First Nation Band will result in members of The Federation of Newfoundland Indians having their interests as aboriginal peoples being represented both by the Qalipu Mi’kmaq First Nation Band and The Federation of Newfoundland Indians; AND WHEREAS the formation of the Qalipu Mi’Kmaq First Nation Band will result in a loss of funding to The Federation of Newfoundland Indians from the Government of Canada that could negatively impact the ability of The Federation of Newfoundland Indians to fulfill the remaining objectives listed in its Articles of Continuance and to conduct its affairs in accordance with its By-Laws;

AND WHEREAS it would not be in the best interests of The Federation of Newfoundland Indians to expose it to financial instability; AND WHEREAS transferring the assets of The Federation of Newfoundland Indians to the Qalipu Mi’Kmaq First Nation Band would assist the Qalipu Mi’Kmaq First Nation Band in its efforts to meet and continue the objectives of The Federation of Newfoundland Indians; AND WHEREAS The Federation of Newfoundland Indians has contractual obligations to meet in the 23 June 2008 Agreement pertaining to the Recognition of the Qalipu Mi’Kmaq First Nation Band; AND WHEREAS maintaining The Federation of Newfoundland Indians under its current Articles of Continuance and By-Law would cause it to incur a greater cost that is necessary to meet its contractual obligations under the 23 June 2008 Agreement pertaining to the Recognition of the Qalipu Mi’Kmaq First Nation Band; BE IT RESOLVED THAT: (

i) Subject to sub-paragraph (

v) herein, the Articles of Continuance of The Federation of Newfoundland Indians be amended in accordance with the Articles of Amendment attached as Appendix 1 to this Resolution; and (ii) Subject to sub-paragraph (vi) herein, the By-Laws of The Federation of Newfoundland Indians be amended in accordance with Appendix 2 to this Resolution.

BE IT FURTHER RESOLVED THAT upon the formation of the Qalipu Mi’Kmaq First Nation Band and the recognition of the First Founding Members List pursuant to an Order-in-Council passed by the Governor-in-Council for the Government of Canada: (iii) the Board of Directors for The Federation of Newfoundland Indians shall sell, assign, convey and transfer, on terms that the Board of Directors considers reasonable, shares and any other assets owned by The Federation of Newfoundland Indians in any fishery enterprise or activity in which it is involved and shall transfer, where permitted to do so by law, or facilitate the transfer of any interest held by The Federation of Newfoundland Indians or held by any of its subsidiary corporations in any fishing licence to the Qalipu Mi’Kmaq First Nation Band: (iv) the Board of Directors for The Federation of Newfoundland Indians shall sell, assign, convey and transfer, on terms that the Board of Directors considers reasonable, all other assets owned by The Federation of Newfoundland Indians that are not required for its ongoing operations to the Qalipu Mi’Kmaq First Nation Band; (

v) The amendments to the Articles of Continuance of The Federation of Newfoundland Indians made in accordance with the Articles of Amendment attached as Appendix 1 to this Resolution shall take effect and shall be filed with the Registry of Companies for the Province of Newfoundland and Labrador; (vi) The amendments to the By-Laws of The Federation of Newfoundland Indians made in accordance with Appendix 2 to this Resolution shall take effect.

THIS SPECIAL RESOLUTION being (passed/defeated) on the day of 2009 during the 2009-2010 Annual General Assembly of The Federation of Newfoundland Indians. [ 37 ] At the same AGA, another special resolution was tabled. This was “Resolution # 2” (the “Second Special Resolution”). The Second Special Resolution cited Original By-Law 8.18, and accordingly sought to postpone consideration of the Special Resolution, in order to permit full discussion of it by the bands of the FNI with their members.

Original By-Law 8.18 stated, as follows: 8.18 Notwithstanding anything herein contained, a proposed resolution which directly affects a Band can only be passed at the first duly called meeting next held after the meeting at which the proposed resolution is first introduced, it being the intention of this

Article that such resolution shall have the fullest possible discussion by the Band which may be affected by the passage of the proposed resolution. [ 38 ] The Second Special Resolution stated, as follows: Resolution # 2

WHEREAS

Article 8.18 of The Federation of Newfoundland Indians By-Laws with regards to

Section VIII dealing with Meetings states: “Notwithstanding” anything herein contained, a proposed resolution which directly affects a Band can only be passed at the first duly called meeting next held after the meeting at which the proposed resolution is first introduced, it being the intention of this

Article that such resolution shall have the fullest possible discussion by the Band which may be affected by the passage of the proposed resolution.” AND WHEREAS It is evident that such discussion has not taken place based on the fact that the resolution is just being presented at the present Annual General Assembly; AND WHEREAS It is logical to assume the affiliated band councils have not formally approached their band membership through a public meeting with regards to the proposed resolution set forth dealing with transfer of the FNI assets to the Qalipu Mi’Kmaq First Nation Band.

Therefore be it resolved That the delegation of the 2009 Annual General Assembly of The Federation of Newfoundland Indians table the resolution described above for a period of thirty days to allow the chiefs to hold public consultations with their members allowing them to make informed decisions as is clearly stated in

Article 8.18 defined above. [ 39 ] Despite the clear direction on process contained in Original By-Law 8.18, the Second Special Resolution was defeated at the AGA of October 24, 2009; and the voting members voted in favour of passing the Special Resolution. [ 40 ] As stated, prior to the Special Resolution being purportedly passed, membership in the FNI was determined by membership in an affiliated band of the FNI.

Clause 2.04.1 of FNI’s Original By-Laws stated, as follows: 2.04.1 Any person who has been admitted into the membership of an affiliated band of the Corporation in accordance with Clause 2.06 shall be a member of the Corporation. [ 41 ] The FNI was comprised of nine affiliated bands. Clause 2.06 of the Original By-Laws described the criteria for membership in a band, as follows: 2.06 Each Band Council in determining its own membership shall use the following criteria: (a) (

i) Demonstrated Mi’Kmaq descent through either of the following: > Pre-confederation census, or > Provincial or colonial documentation or other historical documentation; > Church records > an affidavit establishing that a person is a direct descendant of another person with demonstrated Mi’Kmaq descent through pre- confederation census, provincial or colonial or other historical documentation or church records. And (ii) Demonstrated connection with a Mi’Kmaq community that existed prior to 1949;

And (iii) A voluntary request for membership in a Band. OR (b) (

i) Descent from any person that meets all of the criteria contained in Clause 2.06 OR (

c) A person accepted as a Band Member in accordance with Clause 2.07 of the By-Laws. [ 42 ] As explained by Ms. Randell, the above-described criteria for membership in a band was in keeping with the criteria required to register for status under the Indian Act . I add that prior to the Replacement By-Laws, members of the FNI included not only members in an affiliated bands, but also non-band members whom the Board had accepted as having met the above criteria. [ 43 ] Clause 2 of the Replacement By-Laws fundamentally redefined membership in the FNI, as follows: 2.

Members Members of the Band Council of the Qalipu Mi’kmaq First Nation Band shall be admitted to membership of the corporation in accordance with these By-Laws while and so long as they are members of the Band Council, and none others. [ 44 ] Pursuant to the Special Resolution and the Replacement By-Laws, the new membership of the FNI was to become the Band Council of the QMFNB, and no others.

The Replacement By-Laws would therefore have the effect of terminating the FNI membership status of the Plaintiffs, and thousands of the other FNI members who were not members of the Band Council of the QMFNB. [ 45 ] Pursuant to Clause 6.5.1 of the 2008 Settlement Agreement, the original Band Council of the QMFNB would be comprised of the board of directors of the FNI “existing as of the date of the establishment of the Band and until replaced through the electoral process”.

According to Original By-Law 11.01, the board of directors of the FNI was comprised of the President, an elected youth representative, and the Band Chiefs. [ 46 ] It was this “new” membership of the FNI (being the Band Council of the QMFNB), who approved the Supplemental Agreement. As stated, the Supplemental Agreement not only permitted assessment of unassessed applications, but also required reassessment of previously approved applications for membership in the QMFNB. Following reassessment, the Plaintiffs lost their status as Founding Members in the QMFNB; which meant that they lost their section 6(1) (

b) status under the Indian Act . This loss of status detrimentally affected their ability to pass on status to their children. [ 47 ] The Plaintiffs have alleged that the FNI did not follow due process when terminating the Plaintiffs’ membership in the FNI. Further, the Plaintiffs alleged that the Replacement By-Laws were adopted by the FNI without proper corporate authority. In turn, this brings into question whether the Supplemental Agreement was validly approved for execution by the FNI.

Consequently, there was extensive further evidence at trial regarding the corporate processes engaged when passing the Special Resolution and adopting the Replacement By-Laws, as well as the corporate processes leading up to execution of the Supplemental Agreement. Further details: The Special Resolution and the Replacement By-Laws [ 48 ] As stated, the evidence of Ms. Randell confirmed that the Special Resolution was not circulated in advance of the October 24, 2009 AGA; and that this contravened the notice requirements for special business as contained in the Original By-Laws.

Specifically, she explained that before an AGA, and in accordance with the FNI Original By-Laws, a board kit was supposed to be delivered to voting members with documents for an upcoming AGA. Original By-Law 8.07 required 21 days’ notice be provided of “special business” (with sufficient details) to voting members. Ms. Randell’s evidence was that the board kits were supposed to include the special resolutions.

In this case, however, for the AGA held on October 24, 2009, the Special Resolution (which caused the fundamental change to the membership of the FNI) was not included in the board kits sent out to the voting members. The FNI acknowledged that this failure to provide notice and details of the Special Resolution was

an act in contravention of Original By-Law 8.07, which stated in full, as follows: 8.07 Following the Band Councils’ notification to the President of the Voting Members and Alternate Voting Members that will be attending the general meeting, twenty-one day’s notice of the meeting, specifying the place, day and hour of the meeting and, in the case of special business, the nature of such business stated in sufficient detail to permit the Voting Member to form a reasonable judgment on it, shall be provided by the Corporation to the Voting Members and Alternate Voting Members for that general meeting.

Notice shall be given in writing and in the case of special business shall set out a text of a Special Resolution to be submitted to the meeting. Written notice shall be sent through the post in a prepaid letter addressed to each Voting Member and Alternate Voting Member at the last known address of each. Any notice shall be deemed to be given at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service, it shall be sufficient to prove that the envelope containing the notice was properly addressed and placed in the post office.

The non-receipt of any notice by any Voting Member or Alternate Voting Member shall not invalidate the proceeding at any general meeting.

[ 49 ] Only voting members of the FNI could vote on resolutions at the AGAs, including proposed changes to by-laws. Each Band Council (of the bands affiliated with the FNI) was permitted to have up to four voting members attend the FNI general meetings. As Ms. Randell explained, the four voting members for each band included the Chief of each band. [ 50 ] The AGA held on October 24, 2009 was attended by the voting members from the nine bands affiliated with the FNI. As noted by Ms.

Randell and as reflected in the minutes, not all the bands had four members there, although they were entitled to that number under Original By-Law 9.01. Nevertheless, each of the nine bands was represented at that meeting. [ 51 ] With respect to the Special Resolution, and as reflected in the minutes from the October 24, 2009 AGA, it was clear that the voting members considered the failure by the FNI’s administration to comply with the notice requirements under Original By-Law 8.07. This was evident by the fact that the Second Special Resolution was put forward at the AGA.

As stated, the Second Special Resolution was defeated. [ 52 ] Although the Special Resolution was not distributed to the voting members prior to the AGA, I accept Ms. Randell’s evidence that at least some of the voting members were aware of the contents of the proposed Replacement By-Laws, in advance of the October 2009 AGA. Specifically, the Band Chiefs (who were voting members and on the board of directors) had been previously apprised of legal counsel’s opinion of July of 2009.

Nevertheless, the majority of the voting members did not have the opportunity to consider the Special Resolution on a timely basis, in accordance with the notice period contemplated by the Original By-Laws. Further, the Special Resolution was not discussed by the bands, contrary to Original By-Law 8.18. [ 53 ] Based on Ms. Randell’s evidence, it is clear that the voting members were responsible for apprising the non-voting members of the FNI of the contents of the Special Resolution.

However, because the Special Resolution was not in the board kits, the voting members would likely not have informed the non-voting members of its contents, prior to its passage at the AGA. Further, the “fullest possible discussion” by the bands contemplated by Original By-Law 8.18, did not occur. In addition, the members were never provided with notice of termination of their membership. [ 54 ] According to the Special Resolution, the Replacement By-Laws of the FNI would not take effect until the formation of the QMFNB under the Recognition Order.

In October of 2009, when the Special Resolution was purportedly passed, the band formation seemed imminent. However, the Recognition Order was not actually passed until September 22, 2011, nearly two years after the Special Resolution had been voted on. Nevertheless, Ms. Randell’s evidence was that the adoption of the Special Resolution (in October of 2009) was necessary and time sensitive; and that there was some urgency to get the FNI’s operations in order. Ms.

Randell explained that she had expected the QMFNB to have been formed around 2010, so there was no time to have a second AGA in order to vote on the Special Resolution. [ 55 ] However, there was another AGA held prior to the QMFNB being recognized. Specifically, on September 18 and 19, 2010 an AGA was held by the FNI. The minutes of that meeting suggest, and Ms. Randell’s evidence confirmed, that there were no discussions of the Replacement By-Laws at that AGA.

In other words, the FNI did not avail of that opportunity to rectify the flawed process of failing to provide notice when voting to pass the Special Resolution in October of 2009. [ 56 ] In the meantime, there was a valid explanation for the delay in formation of the QMFNB. Minutes from FNI meetings suggested that the delay was attributable to court proceedings seeking an injunction. That court decision was delivered on June 14, 2011 at Federation of Newfoundland Indians v. Canada , 2011 FC 683 .

Shortly after expiration of the appeal period relating to that decision, the Recognition Order was passed by Canada on September 22, 2011. [ 57 ] Subsequent to the QFMNB being formed, the FNI conducted its AGAs as if the Replacement By-Laws had been passed. Specifically, after September 22, 2011, the members of the FNI in attendance at the AGAs were the members of the Band Council of the QMFNB. This is first reflected in the minutes of the FNI’s AGA held December 9, 2011. Annie Randell explained that this was because they were acting on the resolution of 2009.

In the meantime, however, the Replacement By-Laws were not actually formally passed by the FNI until its AGA held on September 12, 2012. [ 58 ] On this point, the minutes from the AGA held December 9, 2011 refer to the Replacement By-Laws and state, as follows: 3. FNI By-Laws - - By-Laws were tabled for the next meeting of the FNI. [ 59 ] Next, the minutes from the FNI’s AGA held September 12, 2012 indicated that there was a resolution to amend the by-laws, and that the motion was carried. The evidence confirmed that such was a reference to the Replacement By-Laws.

This 2012 AGA was attended by the “new” membership of the FNI, being the Band Council of the QMFNB. Therefore, that AGA was conducted as if the Replacement By-Laws were already in effect, even though the resolution to amend the by-laws was voted on at that meeting. Canada’s concerns respecting the enrolment process [ 60 ] The evidence at trial further established that Canada developed concerns regarding the enrolment process undertaken pursuant to the Settlement Agreement, and particularly the large volume of applications.

Ultimately, the large volume of applications for Founding Membership precipitated the negotiations leading to the creation of the Supplemental Agreement. [ 61 ] Ms. Randell was on the Implementation Committee created under the Settlement Agreement. As a result, she was able to provide insight into the unanticipated volume of applications received during the enrolment process. [ 62 ] According to Ms. Randell, as of May of 2012 she had estimated that there would be about 48,000 applications for membership in the QMFNB. However, by November 30, 2012 there had been actually over 100,000 applications received.

Her evidence was that

neither the FNI, nor Canada, had ever expected such a large number of applications. [ 63 ] In the context of the unexpected large volume of applications, Canada raised concerns regarding the work of the Enrolment Committee. The trial testimony of Tom Rideout confirmed that Canada raised concerns directly with the Enrolment Committee, and sought to interfere with the independence of that committee. [ 64 ] To elaborate, in the Fall of 2008, Mr. Rideout was appointed as independent Chair of the Enrolment Committee, in accordance with the Settlement Agreement.

As stated, the Enrolment Committee consisted of the Chair, two representatives from the FNI, and two representatives from Canada. The Enrolment Committee was responsible for assessing applications to determine eligibility for Founding Membership in the QMFNB [ 65 ] According to Mr. Rideout’s evidence, the information contained in the application packages was available to all five members of the Enrolment Committee. Applications were assessed on their merits, and sometimes more information was requested if an application was not satisfactory.

Adult applicants had to provide affidavits showing a substantial connection to one of the identified communities in Newfoundland. Canada’s representatives on the Committee retained a veto with respect to the ancestry criteria. There was no points system involved in the assessments conducted under the Settlement Agreement. [ 66 ] After a decision was made by the Committee, a letter was sent to the applicant signed by Mr. Rideout. The applicant was informed as to whether or not their application for founding membership had been approved, or rejected. The applicant was also informed of the 30 day appeal period.

If the applicant, the FNI and Canada did not appeal, then the decision of the Enrolment Committee would be final and binding. Decisions of the Enrolment Committee were sent to the Registrar of the Indian Registry. [ 67 ] Mr. Rideout confirmed that he would report to the Implementation Committee on the numbers of applications received, how many applications had been dealt with, how many had been approved, and how many were rejected. [ 68 ] Mr. Rideout testified that later in the process, Canada requested to review the work of the Enrolment Committee.

Files were provided for Canada’s review, and his understanding was that the files were found to be in good order. Nevertheless, there was some concern expressed on behalf of Canada regarding the form of the affidavits, and the lack of content. Specifically, Canada’s concerns were that the affidavits may have lacked sufficient information for the purpose of establishing substantial connection, and that the affidavits were on templates. Mr. Rideout’s evidence was that the Enrolment Committee accepted Canada’s concerns as legitimate, and undertook to tighten up the process. [ 69 ] On this, Mr.

Rideout was referred to correspondence addressed to him dated March 22, 2011 from Martin Reiher, senior counsel for the Federal Department of Justice. In that correspondence, Mr. Reiher expressed Canada’s concerns regarding the lack of detail contained in the affidavits filed with the applications. Mr. Reiher stated at page 2 of the correspondence, as follows: As part of his monitoring of the Enrolment Process on behalf of Canada, the Registrar has identified Applicant Records which include affidavits that are standard templates with blanks to fill out.

In certain instances, these affidavits did not appear to provide evidence as detailed as required under the Enrolment Committee Guidelines. Our preoccupation is that this might have lead to enrolling applicants on the basis of insufficient evidence. We are not concerned with the validity of the affidavits accepted by the Enrolment Committee. We will continue regular random sampling reviews, but we have no reason to believe that affidavits not properly sworn were ever accepted until now. We are only concerned with the strength of the evidence provided by certain insufficiently detailed affidavits.

Of particular concern are affidavits in support of a substantial connection with a Newfoundland Pre-Confederation Mi’kmaq Community or a Mi’kmaq group of Indians on the island of Newfoundland. … [ 70 ] Mr. Rideout’s evidence was that he accepted Canada’s concerns as legitimate. However, he did not feel that the process was impaired, and he noted that the affidavits had been available to all members of the committee. [ 71 ] Mr. Rideout was also referred to correspondence dated July 26, 2012, again from Mr. Reiher, in which Mr.

Reiher referred to his previous correspondence, and expressed further concerns regarding the work of the Enrolment Committee. Mr. Reiher stated at page 2 of that correspondence, as follows: … Following this correspondence, the Enrolment Committee adjusted its practice, ceased to accept affidavits sworn on standard forms and requested from applicants who had provided them new more detailed affidavits. Canada was pleased with this adjustment. The results of the recent review show that adequate evidentiary support was present in a majority of files.

However, in a number of cases, the monitoring team identified what we consider to be deficiencies of varying importance. We wish to bring those to your attention and offer comments in the expectation that you may be able to address our concerns:

• It appears that, on occasions, Enrolment Committee members commissioned affidavits produced by applicants. We are of the view that this practice is problematic because it places the Committee member in a difficult position when comes the time to assess the validity and credibility of the affidavit; • In at least one case, the applicant himself provided an affidavit in support of his application.

While an applicant may wish to adduce evidence by affidavit to bolster his application, we note that this may in no way be accepted in lieu of affidavits from resident community members, where such is required; • Inaccuracies and errors were encountered in affidavits, as well as implausible statements (e.g. a single mother claims that she brings her small children hunting every year or a man states that he talks to his cousin living in another province every day or every other day on the phone).

While clerical errors may be of little import, inaccuracies and unlikely assertions should lead the Committee members to question the credibility of affidavits; • In many instances, the two affidavits provided by applicants are the same word for word. In instances, the affidavits have even been photocopied and new names inserted.

In our view, this suggests that the affiant does not have personal knowledge of the facts presented and seriously affects the credibility of the evidence; • A large number of affidavits refer, without detail, to outdoor activities in which many Canadians participate, such as hunting, fishing, berry picking, hiking and camping, or to the domestic activities of recycling and composting.

Where the affidavits do not show that the applicants participate in these activities in the pursuit of Mi’kmaq traditions, customs or beliefs, we question whether it should satisfy the Committee members that the applicants maintain the Mi’kmaq culture or way of life. As you can see, some of the issues identified may easily be addressed.

On the other hand, these findings of the Registrar and his monitoring team lead AANDC to reiterate observations made in our letter of March 22, 2011 regarding the importance of sufficiently detailed affidavits in support of applications and of the true assessment of the evidence which is required from the Enrolment Committee members. [ 72 ] With respect to this July 26, 2012 correspondence, Mr. Rideout indicated that it would appear that Canada was first saying that they were pleased with the committee’s adjustments, and then saying otherwise. At page 3 of the same correspondence, Mr.

Reiher further stated, as follows: In closing, we wish to stress that the review of Applicant Records constitutes normal and usual monitoring procedures and in no way indicates a change in Canada’s appreciation for the quality of the important and complex work performed by the members of the Enrolment Committee. Similarly, that Canada prevails itself of its right of appeal in recent and future cases should not be regarded as a general disapproval of the Committee’s performance but as Canada’s efforts to maintain the integrity of the enrolment process in light of evolving circumstances. [ 73 ] Mr.

Rideout noted that at this particular point in time (July of 2012) there had been a huge uptake in applications. He also noted that the parameters for community connection did indeed change post-recognition, based upon what had been pointed out in one of the appeals. [ 74 ] Subsequent to the July 26, 2012 correspondence, Mr. Rideout indicated that representatives of the Federal Government requested that Canada be provided with 100 per cent of the non-resident files for review, and 20 per cent of the resident files. Mr.

Rideout indicated that he had agreed to provide 10 per cent of the files, and that the request by Canada was encroaching on the Enrolment Committee’s independence. He noted that if Canada did not like the outcomes of the Enrolment Committee’s determinations, then they were at liberty to appeal the decisions. [ 75 ] Further correspondence was forwarded to Mr. Rideout dated September 28, 2012 from Mr. Reiher. In that correspondence, Mr.

Reiher referred to two appeals filed by Canada to the appeal master, and he stated at page 2 of this correspondence, as follows: On August 25 and September 11, 2012, the Appeal Master rendered his decisions and granted Canada’s appeals in both cases. His reasons confirm Canada’s view that Applicants must show more than close relationships with family members living in one of the communities of the Mi’kmaq Group and must establish a strong connection with the Mi’kmaq culture and the social life of the Mi’kmaq community.

As part of its efforts to ensure that the Agreement for the Recognition of the Qalipu Band is applied in accordance with the parties’ original intentions, Canada wishes to satisfy itself that the Appeal Master’s guidance is followed. Further, the steep increase in the number of applications which followed the establishment of the Qalipu Mi’kmaq First Nation and the registration of stage one applicants militates in favour of the implementation of increased monitoring measures in order to meet Canada’s due diligence duties.

To that end, senior management of the Department of Aboriginal Affairs and Northern Development has tasked the Indian Registrar to verify whether the Applicant Records for every decision of the Enrolment Committee mailed on September 6, 2012 contains the evidence necessary to establish an Applicant’s substantial connection with the Mi’kmaq group as is required under the Agreement. Senior management has requested that the same measure be implemented for subsequent decision mailings. [ 76 ] Mr.

Rideout indicated his understanding of the September 28, 2012 correspondence was that Canada wanted access to every single decision the Enrolment Committee made. As stated, Mr. Rideout had previously agreed to 10 per cent of batches of applications being reassessed. He felt that the request to review all of the decisions again impaired the independence of the Enrolment Committee, and he did not agree to it. Mr. Rideout again pointed out that there was an appeal process available to Canada. [ 77 ] Mr. Rideout’s evidence was that his work as Chair was completed by December 30, 2012.

He was referred to correspondence from the Assistant Deputy Minister of Aboriginal Affairs and Northern Development Canada dated December 21, 2012, which provided

the Enrolment Committee with details on how to clue up their processes. Mr. Rideout did not consider any further applications after December 30, 2012. [ 78 ] After the Supplemental Agreement was in effect, Mr. Rideout was not involved in the process of further assessment of applications. Mr. Rideout was aware that several thousand persons had lost their status cards after having been initially approved as Founding Members by the Enrolment Committee. He could not explain why. His evidence was that the Enrolment Committee worked within the

interpretation of the Settlement Agreement as they saw it. The people that he reported to seemed to be satisfied with the work that they had done. He said that the Enrolment Committee did not act fraudulently or negligently. Mr. Rideout said that the Enrolment Committee upheld their obligations under the Settlement Agreement. I accept Mr. Rideout’s credible evidence, which was not challenged by cross-examination. Circumstances preceding the execution of the Supplemental Agreement [ 79 ] As indicated by Ms.

Randell, as the end of phase 2 of the enrolment process approached, it was clear that there was no way that the large volume of applications for Founding Membership were going to get processed in time. Ms. Randell indicated that correspondence had been received from the Federal Minister expressing concern regarding the number of applications exceeding that which was anticipated. Ms. Randell suggested that the FNI had also not expected the large volume of applications. Further, according to Ms.

Randell, the FNI (like Canada) was concerned about the validity of the contents of the applications. [ 80 ] At that time, the FNI understood that the federal government was not willing to extend the time beyond November 30, 2012, to process the remaining applications. This was confirmed by the evidence of Marilyn Butland. [ 81 ] In August of 2012, Ms. Butland, a business communications consultant, was initially retained for the purposes of providing communications support to deal with the issue pertaining to the volume of applications. She met with Ms.

Randell, Chief Sheppard and Stephen May to collect information. There were no federal representatives at this meeting, and Ms. Butland was informed of the federal government’s position by Ms. Randell and Chief Sheppard. Based on the information she collected, Ms. Butland prepared a communications planning document. [ 82 ] At the beginning of Ms. Butland’s communication planning document, she stated as follows: There is a possibility that a high volume of people who want to be Qalipu Band members will not have their applications reviewed after November 30, 2012.

An Assistant Deputy Minister with Aboriginal Affairs and Northern Development Canada (AANDC) indicated to Chief Brendan Sheppard, CEO Annie Randall and legal counsel Steven May that there would not be a recommendation from officials to their Minister to extend the time beyond November 30, 2012 to process applications for membership in the Qalipu Mi’kmaq First Nation Band received by then. This causes great concern to the Chief and CEO.

There was an expectation that in order to process the volume of applications received up to November 30, the work of the enrolment committee would be allowed to continue until all applications are considered. [ 83 ] In that same document, Ms. Butland identified the issues as follows: If there is no extension to allow for review of applications, close to 40,000 people will likely not receive recognition as Status Indians. Their reactions will range from disappointment to anger.

They will demand explanation, assurances, action, results (and membership) from Qalipu leaders first; and then most likely from federal officials and elected members and Minister. While the agreement between the AANDC and the Federation of Newfoundland Indians (FNI) has been clear about the deadlines, there was an expectation for reasonable cooperation and funding for the application review process to continue.

It appears AANDC officials are concerned with the high volume of applicants that could lead to the Qalipu Mi’kmaq First Nation Band having as high as 60,000 members, when originally there was an expectation of about 18,000. There are budget concerns with providing such a high number of people with benefits provided to status Indians.

Chief Sheppard, the band council and CEO Annie Randall will need to prepare to advocate for an extension, as well as prepare to communicate to current members and interested applicants QMFN leaders’ expectations, concerns and intentions.( sic ) actions. [ 84 ] Further in her communications planning document, Ms. Butland indicated under the heading “Position”, as follows: Chief Sheppard is prepared to take a definite position on key points: ▪ It was agreed that all Mi’kmaq people, who had been acting separately, would be included in the Qalipu agreement and subsequent considerations of eligibility.

It was agreed the process would result in the creation of a single non-reserve Band and the registration of its members.

o Being declared as a QMFN Band followed on the work of the Federation of Newfoundland Indians (FNI) when the Government of Canada and FNI completed negotiations and initialed the Agreement-in-Principle in November 2007. o The FNI includes Corner Brook Indian Band, Elmastogoeg (Benoit’s Cove) First Nations, Flat Bay Indian Band, Indian Head First Nations, Port au Port Indian Band and St.

George’s Indian Band in western Newfoundland, along with Gander Bay Indian Band, Glenwood Mi’kmaq First Nation Band and Sple’tk (Exploits) First Nation Band in central Newfoundland. • This reaction to high numbers of applicants is not acting in good faith. • This has the potential to deny many eligible Mi’kmaq people their rightful recognition. • There has to be a measure of good faith.

Rights to benefits and recognition are measured by one’s heritage and ancestry not an arbitrary quotas and deadlines set by parties to the agreement. • This lack of cooperation means the federal government is pulling away from their commitment. • The Minister of AANDC has to become involved and carry through the commitments made by his Government. • Chief Sheppard has requested an extension. [ 85 ] Ultimately, a federal representative was appointed to explore appropriate measures with the FNI, and a negotiating committee was formed. Ms.

Randell was on the negotiating committee along with Chief Brendan Sheppard, legal counsel, and representatives for Canada. The end result was the Supplemental Agreement was negotiated, and it was signed on June 30, 2013. [ 86 ] As stated, the Supplemental Agreement introduced a points system to assess the large volume of remaining applications; and further required a review and reassessment of all the applicants who had already been assessed and registered as Founding Members. [ 87 ] Ms.

Randell provided the FNI’s rationale for agreeing to reassess (using the points system) the applications of those who had already been approved. She said it was not appropriate to apply lesser assessment criteria to those who were already in the system. As well, Ms. Randell’s understanding was that Canada would have had to go back to Cabinet if the numbers or dollar amount received reached a certain level. [ 88 ] Ms. Butland’s evidence also provided insight with respect to discussions held at FNI board meetings leading up to the execution of the Supplemental Agreement. [ 89 ] Ms.

Butland was referred to the FNI board of directors’ meeting minutes for March 26, 2013. She attended that meeting, which she described as a meeting with the Qalipu Band Council. She took detailed notes at the meetings. [ 90 ] Ms. Butland’s detailed notes from that meeting suggested that there were FNI Board discussions regarding the number of applications, the fact of reassessment, and the criteria for enrolment. According to her notes, the Board recognized that there would be challenges for applicants who resided outside the Province.

Her notes also suggested the Board discussed that if there was no agreement, then Canada would legislate. [ 91 ] Ms. Butland’s notes further suggested that the FNI Board was aware of the potential impact of reassessment, and that thousands could lose their status. Specifically, Ms. Butland’s notes reflect some of the numbers contained in an undated report prepared by Ms. Randell (“Ms. Randell’s report”). Ms. Randell’s report provided estimates of the number of Qalipu members following assessment under the directive of the Supplemental Agreement. [ 92 ] According to Ms.

Randell’s report, the enrolment process received 101,574 applications as of November 30, 2012. Of these applications, 17,377 applications were deemed invalid. Consequently, 84,197 complete applications were to be considered under the Supplemental Agreement. By the end of stage 1 of the process, 23,876 applicants had received their status cards. However, according to the numbers in Ms. Randell’s report, approximately 11,000 of those applicants were anticipated to lose their status after being reassessed pursuant to the Supplemental Agreement. In Ms.

Randell’s report, she provided an estimate of 26,461 as the number of members of the QMFNB after assessment under the criteria pursuant to the Supplemental Agreement. [ 93 ] More detailed excerpts from Ms. Randell’s report stated, as follows: Qalipu Enrolment process received 101,574 applications ending November 30, 2012. After a cursory data processing project of all applications received it was revealed that 17,377 applications that were submitted would be deemed as invalid applications. As a result of this review 84,197 complete applications are remaining to be considered in the Enrolment process.

During stage of ( sic ) one of the process 30,329 applications were received prior to band creation. Of the 30,329 dated prior to band creation: • 23,876 applicants have received cards o 11,661 are residing inside the wards- o 12,215 are residing outside the wards • 2,236 were rejected

• 948 deferred applications • 3,269 applications determined but not on Qalipu List During the second stage of the process 53,868 complete applications were received after band creation. After a further examination of the applied criteria it is evident that there are two issues with the Agreement that was signed June 23, 2008.

Specifically, (1) applicants that applied after the band creation were not able to meet the self-identification requirement and (2) the acceptance of inadequate documentation of applicants living outside the wards to support substantial connection. … Estimated number of Qalipu Members Out of the 84,197 complete applications: • 23,876 applicants have received cards o 11,661 are residing inside the wards o 12,215 are residing outside the wards (7.5%=916) • Of the 53,868 that applied after band creation o 18,322 are residing inside the ward therefore will be required to meet new

section 24 o 35,546 are residing outside the wards therefore will be required to meet new

section 24 and

section 25 directive; o Of these 53,868 a potential 9,058 could utilize band membership as self-identification living in or out of wards. Therefore, maximum of an additional 9,058 members. Leaving 44,810 members to find self-identification through other means in the directive and

Section 25.

We believe that people finding other evidence outside of band list will be very limited therefore take an estimate of 7.5% 2 =3361 • 948 deferred files; and (7.5% = 71) o Best evidence is that all applications from outside the communities • 3269 determined files we do not know any further information o 1394 are residing inside the wards o 1885 are residing outside the wards (7.5% = 141) • 2236 rejected files will not be consider ( sic ) as future members Calculation 11,661 + 1,394 + 71 + 3,361 + 9,058 + 916 = 26,461 Considering Federal and Provincial governments do not keep applications after five years; we believe this evidence will not result in many, if any members; the 2006 census only had 20,000 people identify for the entire Province-which would have members from the four groups in LB, Miawpukek, FNI, KMA, Kiptu, Sip’kop, and Benoit.

For information purpose : The 2008 NL Bands (FNI, KMA, Sip’kop, Benoit) yield 19,128 members. Of which 10,070 are currently members of Qalipu. From the application review it was noted that only 641 applicants indicated that they have an aboriginal document when completing their application. However based on the 2008 list there are 9,058 individuals that could enroll through self- identification;

… [ 94 ] Based on the evidence at trial, I am satisfied that Ms. Randell was part of the directing mind of the FNI. Based on Ms. Randell’s report, she clearly knew that there would be a significant number of Founding Members who would lose their status following reassessment. Further, in light of Ms. Butland’s notes, I am satisfied that some of the numbers in Ms. Randell’s report were put before the Board of the FNI at the meeting on March 26, 2013.

In my view, based on the evidence it is reasonable to infer that the Board of the FNI knew that the reassessment process undertaken pursuant to the Supplemental Agreement would potentially result in the loss of status for several thousand applicants. The Board knew this prior to approving the execution of the Supplemental Agreement.

At the very least, by agreeing to a reassessment, the Board must have known that they were placing the status of many, including the Plaintiffs, at risk. [ 95 ] On June 24, 2013, the board of directors of the FNI met, and through unanimous resolution, the board authorized Chief Brendan Sheppard to sign the Supplemental Agreement.

Again, this meeting was attended by the “new” membership as defined under the Replacement By-Laws. [ 96 ] The minutes from the FNI meeting on June 24, 2013 indicate, as follows: “A unanimous decision was provided to President, Brendan Sheppard to sign the Supplemental Agreement between the FNI and Canada to extend the Enrolment Process for the Qalipu Mi’kmaq First Nation. … ” [ 97 ] The Supplemental Agreement did extend the time for assessment of the applications and the enrolment process.

It was not ratified by the FNI membership. [ 98 ] According to the 2018 Canada Gazette , following assessment and reassessment of over 100,000 applications under the points system of the Supplemental Agreement, the final results of the enrolment process established 18,875 eligible for the Founding Members’ list. Further, the 2018 Canada Gazette indicated that of the 23,875 persons who had originally been granted Founding Member status following assessment under the Settlement Agreement, 10,396 were to be removed from the Founding Members’ list.

The Plaintiffs were included in those who were removed as Founding Members. THE PLAINTIFFS’ LOSS OF SECTION 6(1)(

b) STATUS [ 99 ] The Plaintiffs had all been members of the FNI. Following assessment under the Settlement Agreement, the Plaintiffs had been accepted as Founding Members of the QMFNB. As a result, they were granted section 6(1) (

b) status under the Indian Act . [ 100 ] Following reassessment under the Supplemental Agreement, the Plaintiffs lost their section 6(1) (

b) status. The Plaintiffs’ evidence established the hurt and devastation they suffered because of this loss of status. They considered the loss of status to be a denial of ancestry, a denial of heritage, and a denial of identity. As well, the Plaintiffs’ evidence established that inequities arose from the reassessment process. [ 101 ] Further on this, as stated, the Plaintiffs’ loss of section 6(1) (

b) status detrimentally affected the Plaintiffs’ ability to pass on eligibility for status to their children. The distinction between section 6(1) status and section 6(2) status was described by the Supreme Court of Canada in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2018 SCC 31 . They stated at paragraph 7, as follows: 7 Underlying all of the complaints are the Indian Act 's rules for the transmission of status eligibility. Under the current Indian Act , individuals may qualify for one of two forms of status.

Section 6(1) status is conferred on individuals who qualify under an exhaustive list of eligibility criteria. Section 6(2) status is conferred on individuals who are ineligible under s. 6(1) but who have a single parent entitled to s. 6(1) registration. The two forms of status differ mainly in the ability to transmit eligibility to one's children: a child who has only one parent with s. 6(1) status will be eligible for s. 6(2) status, while a child who has only one parent with s. 6(2) status will not be eligible for status. Matthew Anderson [ 102 ] The Plaintiff, Matthew Anderson, lives in Ontario.

He confirmed that he was a member of the FNI, and he had originally been accepted as a Founding Member of the QMFNB. However, as a result of the Supplemental Agreement, he was required to reapply for reassessment; and he was then denied Founding Member status. [ 103 ] Mr. Anderson appealed that decision, but by letter dated December 29, 2017 he was informed that his appeal was denied. By letter dated August 31, 2018 from the Indian Registrar, he was advised that he was no longer entitled for registration under section 6(1) (

b) of the Indian Act . His registration status was changed to a section 6(2) category under the Indian Act . Mr. Anderson described the main consequence of this as being the impact on his children, whom he described as no longer being allowed to identify as members of the QMFNB. [ 104 ] Mr. Anderson considered the denial of Founding Member status to be a denial of his identity and his heritage. He had been raised in, and he maintains, the cultural way of life as a Qalipu. Mr. Anderson’s siblings were permitted to retain status. Jennifer Sue Le Roux [ 105 ] The Plaintiff, Jennifer Sue Le Roux, lives in Ontario.

She is currently a member of the St. George’s Band, and had been a member of the FNI since 2005. Jennifer Sue Le Roux confirmed that she had been accepted as a Founding Member of the QMFNB under the Settlement Agreement. When she had to reapply for membership in the QMFNB pursuant to the Supplemental Agreement, she was denied membership. She appealed, and the appeal was denied by the appeal master by letter dated December 29, 2017. By letter dated August 31, 2018, she was informed by the Indian Registrar that she was no longer entitled to section 6(1) (

b) status; and that she

would be registered with section 6(2) status. [ 106 ] Jennifer Sue Le Roux described the confusion, hurt, pain and stress of being denied section 6(1) (

b) status under the Indian Act . She had expected that the FNI would protect her heritage and advocate for her; however, this did not happen. [ 107 ] Jennifer Sue Le Roux spoke to the inequity arising from the reassessment process. Specifically, her identical twin has spent the same amount of time in the Province as she has. Her twin was recognized as a Founding Member of the QMFNB, while Ms. Le Roux was not. She further described the inequity of her son’s first cousins being Founding Members, but her son is not entitled to the same eligibility for status as his cousins.

She is registered under section 6(2) of the Indian Act ; however, she felt that she should be on the Founding Members’ list, and that her son should have section 6(2) status under the Indian Act . Bobbie Tapp Goosney [ 108 ] The Plaintiff, Bobbie Tapp Goosney, lives on the Northern Peninsula. She is a member of the Northern Peninsula Band, and had been a member of the Corner Brook Band. Ms. Goosney was a member of the FNI, and she is currently a member of the Qalipu Band. Like all the Plaintiffs, Ms. Goosney was a Founding Member of the QMFNB, but in 2018 she lost her section 6(1) (

b) status following reassessment. By letter dated August 31, 2018 from the Indian Registrar, she was informed that she was registered with section 6(2) status. [ 109 ] With respect to her loss of status, Ms. Goosney indicated that her section 6(2) status under the Indian Act arises from her being a child of a parent who had section 6(1) status under the Indian Act . However, this parent was her father, who died in 2010, prior to the Band being formed in 2011. Consequently, it was unclear to Ms. Goosney why she did not retain her status under section 6(1) of the Indian Act . In any event, as Ms.

Goosney indicated, having status under section 6(2) of the Indian Act meant that she could not pass status onto her children. [ 110 ] With respect to her loss of status, Ms. Goosney had expected protection from the Chief of her band, but she felt that she did not receive this protection. Marie Tapp Melanson [ 111 ] The Plaintiff, Marie Tapp Melanson, lives in Moncton, New Brunswick. Ms. Melanson described her Mi’kmaq ancestry which goes back prior to confederation. Ms. Melanson had been in the Corner Brook Band. She maintained a connection with her Band through family and friends. [ 112 ] When Ms.

Melanson became a member of the FNI, she understood that the FNI would seek the recognition and status which her ancestors had been denied. Recognition would preserve her heritage, and honour her ancestry. [ 113 ] Ms. Melanson had expected the FNI to protect her, and that she and all members of the FNI would be recognized and in the QMFNB. As a Founding Member of the QMFNB, she had received her status card (for status under section 6(1) (

b) of the Indian Act ), but she subsequently received a letter indicating that she, and her children, had to resubmit their applications and apply under the points system. She could not understand why this was happening when she had already been accepted, and the appeal period had passed. [ 114 ] Ms. Melanson characterized the information required to be submitted with the new application as “ridiculous”. She had to find receipts from years ago. She found whatever she could, and reapplied. However, like the other Plaintiffs, she lost her section 6(1) (

b) status under the Indian Act . [ 115 ] Ms. Melanson was informed of this change in status in 2018. She was informed that she could reapply under a parent; however, her father had died in 2010 so she could not see how she could reapply. [ 116 ] The loss of her section 6(1)(

b) status was devastating to Ms. Melanson. She considered it a loss of her line of heritage for herself, her children and grandchildren. She further described families being split as a result of the process undertaken. Ms. Melanson suggested that the FNI had to know that bringing in the requirements under the Supplemental Agreement would destroy people and families in the reassessment process. Shawn Benoit [ 117 ] The Plaintiff, Shawn Benoit, is an RCMP officer who resides in Nova Scotia. Mr. Benoit has been part of the Indian Head First Nation Band since he was 18 years of age. [ 118 ] When Mr.

Benoit became a member of the FNI, he thought that the purpose of the FNI was to fix the wrong that had occurred when Newfoundland joined confederation, and to ensure that FNI members had a voice regarding their ancestry and heritage. He described the stigma attached to his heritage, and the discrimination suffered by his family. [ 119 ] Mr. Benoit considered the Settlement Agreement to have been negotiated by the FNI on his behalf, and on behalf of all members of the FNI, and he applied to be a Founding Member of the QMFNB. It was a proud moment for Mr. Benoit, and his family, when he was accepted. Mr.

Benoit received a letter dated April 1, 2011 from the Chair of the Enrolment Committee (Mr. Rideout) indicating that his application had been approved. The letter referred to a 30 day appeal, after which the Enrolment Committee decision was stated as being “final and binding”. Mr. Benoit and his children became Founding Members of the QMFNB; and they received their status under section 6(1) of the Indian Act . Mr. Benoit had no expectation that they could ever lose the status once it was final and binding.

[ 120 ] Subsequently, Mr. Benoit received a package indicating that he and his children all had to reapply with more strict requirements. He had no concern about being accepted because he had already met the criteria. Mr. Benoit assumed that the new process engaged by the Supplemental Agreement was a way to weed out invalid applications. Consequently, he did not provide additional information. He received a letter dated January 31, 2017 rejecting him, and informing him that he did not meet the requirements for Founding Member status. He and his children lost their status.

He appealed the decision, but the appeal was dismissed. By letter dated August 31, 2018 from the Indian Registrar, Mr. Benoit was informed that he was removed from the Indian Register. [ 121 ] Mr. Benoit described the shock, upset and disbelief at being rejected. He could not understand how this happened; and how his heritage had become subject to a points system. In his view, the FNI was charged with fighting for he and others who were members of the FNI. As a member of the FNI, he assumed that the FNI would protect its members. He blamed the FNI for failing in its duty to protect Mr.

Benoit, and other members, in its negotiations with Canada. He also was of the view that Canada had a responsibility to ensure that there was no discrimination in the process. [ 122 ] Mr. Benoit also described the inequities arising from the application of the Supplemental Agreement’s points system criteria. He said that many members of his large extended family retained their status, but others did not. Mr.

Benoit said this has caused a separation in his family, and he stated in his testimony that the result was “most of us are Indian, some are not”. [ 123 ] Shawn Benoit expressed that because the new QMFNB was a landless band, anyone who had to leave the Province should not be discriminated against. In his view, the landless band ended up having a land requirement as a result of the points system. Mr. Benoit’s evidence was that he was working on a First Nations reservation in Nova Scotia. He was in frequent contact with his family; and he was immersed in the culture.

However, because he did not live in the Province, he expressed the view and stated in his testimony that he was deemed not “Indian enough”. [ 124 ] Mr. Benoit wanted the Supplemental Agreement to be scrapped, and for those originally accepted to be reinstated. He was of the view that a personal remedy would not be sufficient. John Oliver [ 125 ] John Oliver was not a Plaintiff, but his testimony supported the Plaintiffs’ assertions regarding the inequities following reassessment under the Supplemental Agreement. [ 126 ] Mr. Oliver had been involved with the FNI from its inception. He wa

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