The enrolment process for the Qalipu Mi’kmaq First Nation has been contentious. (Colleen Connors/CBC) Two days before Canada and Newfoundland First Nations officials signed off on changes to the application process for the Qalipu Mi’kmaq First Nation, they signed a document that protected the First Nation’s Chief, councillors and staff from lawsuits on behalf of people whose applications were rejected or memberships were revoked.
The private indemnity agreement, obtained by CBC News, was signed by the then-Qalipu Chief and president of the Federation of Newfoundland Indians (FNI) on June 28, 2013.
Two days later, they implemented the highly criticized amendment to the band’s application process, called the Supplemental Agreement, which allowed for changes to the enrolment process.
"There has to be something of value that both parties agree to, or get, as part of an [indemnity] agreement," said David Rosenfeld, a Toronto lawyer representing former Corner Brook resident Jerry Brake in a potential class action lawsuit against Qalipu.
"Say, if a court case gets settled for $500, one party would say I’m not going to do X,Y or Z in exchange for $500."
Common in business transactions, indemnity agreements are usually signed when one party agrees to financially protect or reimburse the other if it is taken to court as a result of something all parties agreed on, Rosenfeld said. Days before Canada and Newfoundland First Nations officials implemented contentious changes to the Qalipu First Nation application process, they signed a document protecting the band from legal action as a result of those changes. (Submitted) In the FNI, Qalipu and Canada’s indemnity document, Canada agreed to handle the costs of any court cases "arising from … the execution and/or implementation of the Supplemental Agreement."
The indemnity document also outlines that the FNI requested the protection "in consideration" of its acceptance of the supplemental agreement, and that each of the signatories "vigorously defend the validity" of the supplemental agreement if challenged in court. An exchange of $10 between each of the three parties sealed the deal. Mi’kmaq leader Brendan Sheppard declined to comment on why the indemnity agreement was required before signing the supplemental agreement. Then-Qalipu Chief Brendan Sheppard, and current Chief Brendan Mitchell, both told CBC News that commenting publicly on the indemnity agreement would be "inappropriate," as they expected the document could be be discussed as part of an ongoing court case.
Mitchell said the band is working diligently to support the Mi’kmaq of Newfoundland.
In a statement to CBC News, Indigenous and Northern Affairs Canada (INAC) confirmed the federal government entered into an indemnification agreement with FNI in relation to the Qalipu Enrolment Process and that there was no signed indemnification agreement in favour of the FNI before that.
"While Canada and FNI jointly share responsibility for the Qalipu Enrolment Process, the purpose of the indemnity agreement is to protect the Qalipu First Nation and the FNI from lawsuits that may arise from the Process," the statement said.
"It is not unusual to provide this type of insurance to protect parties of the contract from the impact of legal actions and of legal costs." A matter of time
There are at least five ongoing court cases challenging different elements in Qalipu’s enrolment process. The enrolment process is expected to be completed in June, followed by Canada’s release of an official members list. Some of the court cases are attempting to suspend the process before that happens.
Jerry’s Brake’s potential class-action lawsuit alleges that the supplemental agreement unfairly changed the requirements to become a Qalipu member and by rejecting applicants based on the changes, Canada is saving the money required to pay for educational and health care […]
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