Aboriginal Law and the Qalipu First Nation

When the Qalipu First Nation was finally officially recognized by the Canadian federal government in 2011, many across Canada questioned its legitimacy and the origins of these Mi’kmaq people in Newfoundland. Given the problematic ways in which the federal government went about recognizing Qalipu and governing its membership, many in the public were left with no explanation as to what had occurred and cast judgment on the Qalipu First Nation based on misunderstandings and harmful myths. What few know or understand are the oppressive impacts that colonial legal structures within Canada have had on the Aboriginal law surrounding the history, formation, identity, and current issues facing Qalipu today.

Understanding the Aboriginal law and the context that surrounds and led to Qalipu’s current circumstances is essential in dispelling these harmful myths and misunderstandings that gave rise to some Canadians questioning the Qalipu First Nation’s legitimacy in the first place. In an effort to explain this area of Aboriginal law and in the interest of promoting access to justice, this question-and-answer document aims to educate and inform the general public, Indigenous people, and legal professionals alike. This will be achieved through a series of questions and answers that explain the Aboriginal law surrounding Qalipu in an easily digestible form, accessible to everyone.

Question 1: What is the history of the Mi’Kmaq people in Newfoundland, and how does it influence the Aboriginal Law around the Qalipu First Nation today?

            First and foremost, Mi’kmaq oral tradition holds that the Mi’kmaq people have maintained a continuous presence on the island of Newfoundland since time immemorial. Traditionally, as long as the Mi’kmaq people have existed, they have used birch bark canoes to both travel between and occupy the islands within and the lands surrounding the Gulf of St. Lawrence. This is how the Mi’kmaq people came to occupy Newfoundland long before European arrival. However, colonial history does not recognize this Mi’kmaq oral history as fact. Instead, because the history of Mi’kmaq people in Newfoundland is so vastly under-studied and under-documented, it has led to extensive debate among colonial scholars as to the origins of Mi’kmaq people in Newfoundland. Much of the documented history we rely on today has been recorded through a colonizer’s lens, and oftentimes that history is only recorded once it is first documented by colonizers. So, when Europeans began to arrive in the vastly unexplored southwestern regions of Newfoundland in the 1700s, it was only then that they began to take notice of and document the Mi’kmaw people who lived there. As such, many scholars now argue that the Mi’kmaq people did not start arriving in Newfoundland until the 1700s after European colonization had begun. This means that the Qalipu are viewed as immigrants in their own lands by colonizers.

            This belief was sustained for hundreds of years by harmful myths, with two in particular causing great harm. First, there was the widespread belief in Newfoundland that after the successful genocide of the Beothuk peoples, there were no Indigenous people left in Newfoundland. Worse yet was the mercenary myth, which held that the Mi’kmaq people were brought to Newfoundland to fight as mercenaries for the French against the English and the Beothuk. This was still being taught in textbooks up until the late 20th century, even though there is zero historical evidence behind it, and as a result, many people still believe these myths to this day.

            This belief among scholars about when the Mi’kmaq arrived in Newfoundland, combined with harmful myths, has served to deny the Qalipu First Nation’s identity for generations. Worse yet, this has greatly influenced the Aboriginal law surrounding Qalipu because it has made it that much more difficult for Qalipu (and formerly the Federation of Newfoundland Indians or FNI) to prove their legal arguments when it comes to Aboriginal rights such as hunting, fishing, trapping, land claims, and self-governance. These same myths and beliefs led to the denial of the Miawpukek First Nation’s Aboriginal rights in the case of Newfoundland (Minister of Government Services & Lands) v. Drew, 2006.

            Another unique aspect of the Mi’kmaq people's history in Newfoundland is that Newfoundland was a separate country from Canada until 1949. This means that Newfoundland was not a part of Canada when the Indian Act was enacted, and therefore, the Mi’kmaq people of Newfoundland held no legislative protections. The aforementioned beliefs and myths, combined with this lack of legislative protection, had devastating consequences for the Mi’kmaq of Newfoundland during the terms of union between Newfoundland and Canada. The terms of union would only validate the denial of Newfoundland Mi’kmaq’s identity. Two years of negotiations and thousands of pages of documents, and yet any mention of Indigenous people and their rights is virtually non-existent throughout. The first premier of Newfoundland at the time would later go on to declare that “there are no Indians in Newfoundland”.

            However, the Mi’kmaq people of Newfoundland were not deterred by what had occurred during Confederation and spent the next half century fighting for their rights and recognition. In the 1970s, Elder Calvin White and others began organizing Mi’kmaq communities across Newfoundland into what would become the Federation of Newfoundland Indians (FNI). The FNI would spend the following decades lobbying the federal government for recognition under the Indian Act. Following the recognition of the Miawpukek First Nation under the Indian Act, the FNI launched a Charter action against the federal government in 1989. This case, known as the Federation of Newfoundland Indians v Canada (2011), resulted in protracted negotiations between the FNI and the federal government. This finally culminated in the recognition of the Qalipu First Nation under the Indian Act – 60 years after Confederation.

Question 2: How did the Qalipu First Nation form, and why is it so controversial in the context of Aboriginal law?

            The Qalipu First Nation formed as a result of the negotiations between the FNI and the federal government of Canada over the course of 18 years. In 2007, they signed an agreement in principle that would pave the way for Qalipu’s formal recognition under the Indian Act. This was a pyrrhic victory for Qalipu, as the negotiations were never going to be fair. What people often do not understand about this dynamic is that the federal government of Canada holds all the bargaining power when it comes to most issues of Aboriginal law. The case was no different with Qalipu, who had to negotiate the recognition of an identity they always had from a position of inferior bargaining power against the very oppressor who had denied their identity all along. The negotiations were always going to be on the federal government’s terms because the decision was ultimately up to them.

            This is the reality of Aboriginal law within a colonial legal system. The federal government had nothing to concede in these negotiations other than recognizing the duty they constitutionally owed to Qalipu anyway. So, the concessions would have to come entirely from the FNI’s side if they wanted to reach an agreement. Part of these concessions was to force the FNI to give up any and all land claims as part of this agreement, which is why Qalipu is still a landless band to this day. Between the 2007 Agreement in Principle and the formal recognition in 2011, the FNI represented just over 20,000 Mi’kmaq people. As a result of the federal government's application process, 21,429 members’ applications were approved for the founding members list prior to 2011. What no one saw coming, and where the controversy around this Aboriginal law arose, was in the months following the formal recognition of Qalipu in September of 2011.

            With the application process now open to everyone, the following months saw an additional 70,000 applications for Qalipu membership filed. This was seen as extremely controversial in the area of Aboriginal law, especially to others across the country who were not aware of what had happened. Nevertheless, for Newfoundland’s Mi’kmaq population to now number approximately 100,000 people was problematic, to say the least, and many, even within Qalipu, still wonder where all these people came from. However, it was the federal government that allowed this to happen, and the controversy surrounding it would only harm Qalipu, as many then questioned the legitimacy of the band and continue to label its members as “pretendians”. The federal government’s response was to force the Qalipu First Nation back to the negotiating table in order to give the federal government the decision-making power over who is Mi’kmaq and who is not. The federal government’s solution would be what is known as the Supplemental Agreement.

Question 3: What is the Supplemental Agreement between Qalipu and the federal government, and why is it so problematic?

            When the Canadian federal government became overwhelmed by the unprecedented number of applications to join Qalipu, they demanded that the FNI return to the negotiating table and help come up with a solution. Once again in a position of inferior bargaining power, the FNI was forced into closed-door meetings with the federal government. The result would be a disastrous colonial process by which the federal government would decide who is Mi’kmaq and who is not through a “points system” that had virtually nothing to do with being Mi’kmaq. This would become known as the 2013 Supplemental Agreement, and it is problematic for several reasons. When the Supplemental Agreement’s points system was introduced, everyone who had either already held status or had a pending application would now have to prove themselves again. Regardless of the time and money spent by those who already held status, they now had to provide significant additional documentation to gain a sufficient number of points under the Supplemental Agreement. Only with enough points could they regain the status they had previously held.

            The sufficient or minimum number of points required was 13 points if applicants wanted to maintain or obtain status. One of the biggest criteria under the points system was to hold membership in a Mi’kmaq organization prior to 2008, which earned a total of 9 points. So, those trying to maintain status met this criterion because they had already held membership in a Mi’kmaq organization such as the FNI prior to 2008. This was the easiest criterion to meet, and yet all those trying to obtain status after the 2008 Agreement in Principle did not satisfy this criterion. What makes the points system so problematic from here is that almost every other criterion is based on geography rather than Mi’kmaq culture and is assessed subjectively based on the ambiguous wording of each criterion. With that said, the next criterion was to hold residency on the island of Newfoundland for a total of 3 points, regardless of the fact that Qalipu is a landless band.

            As is the case for many in Newfoundland, most are forced to move away to find work. Consequently, those who did, or worse yet, those employed by the RCMP and Canadian military, did not hold residency in Newfoundland and could not meet the requirement. This effectively barred them from maintaining or obtaining status because the other 3 criteria are also geographically based. Proving a “current and substantial connection” to the Qalipu community became the name of the game for those outside the province. In the interest of conciseness, these last 3 criteria were subjectively assessed based on ambiguous wording, with applicants able to earn “up to” a certain number of points depending on the strength of the evidence and frequency of occurrence.

            First, there was the “frequency of visits to members of a location of the Mi’kmaq Group of Indians of Newfoundland” criterion, even though again it is a landless band (up to 4 points could be earned). This required bank statements for purchases made in the area, photographs of the applicant attending events, and sworn affidavits from the applicants and community members. Second is the “frequent communications with members of a location of the Mi’kmaq Group of Indians of Newfoundland” criterion, and it was required that at least 1 point must come from this criterion (up to 2 points could be earned). This required email records and phone records (something service providers almost always refused to provide). The last criterion was the “maintenance of Mi’kmaq culture and way of life.” This is the most problematic, ambiguous, and heavily criticized criterion of them all (up to 9 points could be earned). It was subjectively assessed on the degree of community involvement and the number of activities participated in. This required photographs of the applicant attending community events and participating in the cultural ways of life. It also, once again, required sworn affidavits. Many were lucky to earn even 1 point from these 3 criteria.

            Because this legal structure had nothing to do with being Mi’kmaq, it was incredibly harmful to the legitimacy of the Qalipu First Nation, as once again, they were subjected to intense criticism/insults about their identity, even though it was the federal government’s decision. Worse yet, Mi’kmaq families in Qalipu were quite literally divided by these criteria, as some family members received status while others did not, due to factors such as geography. The most egregious example is where twin siblings ended up with one holding status while the other did not. This points system is unprecedented in Aboriginal law and should be abolished.

Question 4: Where is the Qalipu First Nation today, and how is Aboriginal law developing around it?

Today, the Qalipu First Nation stands at almost 25,000 members and continues to grow as one of the largest bands in Canada. Qalipu’s struggle for identity holds a unique place in Aboriginal law. The legacy of Qalipu’s membership issues and especially the supplemental agreement, continues to harm the perception of Qalipu’s legitimacy and identity in the eyes of many Canadians. It continues to improve thanks to informational documents and research, such as this question-and-answer document. The Aboriginal law surrounding Qalipu has developed significantly in the last 10 years, as many have mounted legal challenges and continue to fight for their identity in response to the problematic Supplemental Agreement.

            In the summer of 2023, this culminated in a significant legal decision by the Supreme Court of Newfoundland and Labrador in the case of Benoit v. Federation of Newfoundland Indians Inc. The Court ruled that the federal government of Canada likely heavily pressured the FNI into creating the Supplemental Agreement and that the point system under the agreement is discriminatory. However, this complex legal decision lays the blame at the FNI’s feet, and they have been ordered to return to their previous bylaws from 2009. It is an exciting time for the Aboriginal law surrounding Qalipu, and decisions like this bring Qalipu closer to righting the wrongs of the Supplemental Agreement, while also strengthening their identity.