Members of the NCNS are suing the provincial government for $40 million over moose hunting rights.
A recent report alleging that the Native Council of Nova Scotia has members in its ranks who are not Mi’kmaw could have an effect on a class action lawsuit filed by members of the organization.
The council, also known as the NCNS, is “the self-governing authority for the large community of Mi’kmaq/Aboriginal peoples residing off-reserve in Nova Scotia throughout traditional Mi’kmaq territory,” according to its website. The organization says it has 3,500 members – some who have status under the Indian Act and others who don’t.
A recent internal report, obtained by APTN News, questions whether some of the organization’s members are who they say they are. The report, called Indigenous Identity Fraud within NCNS, was written by Pierre Sabourin while he was employed at the NCNS as the Citizen Engagement Officer.
He delivered the report to NCNS leadership when he resigned on Aug. 8, 2023.
Sabourin told APTN that he worked on the report over the course of two years – but declined an on-camera interview request. “There are NCNS Members whose only evidence of Indigenous ancestry is a family story from 220 years ago or an ancestor with a last name that is only sometimes associated with Mi’kmaq people,” he said in the report.
The report alleged that a third of active members can’t provide verifiable evidence of Indigenous ancestry. “Most of the 300+ members are from two ancestral groups,” said the report. “In both groups, their NCNS Membership is the result of a misunderstanding… to be clear the historic record on these families establish they were white in colour and of European ethnonational origin (e.g., English, or French).”
Darryl Leroux, an associate professor of political studies at the University of Ottawa who studies the growing number of people claiming Indigenous ancestry such as Métis groups in eastern Canada, obtained a copy of the report and said it was well researched. Leroux said one part of the report about a particular family stuck out to him.
“This record in the ledger that’s included in the report, because this individual actually went to the area and looked at these different sources of information, it strongly suggests that the individual in question, the root ancestor, was born to two Anglo-Saxon settlers,” he told APTN. “Given the evidence of the report, I think it’s highly, highly unlikely the root ancestor was Mi’kmaw.”
Over the past couple of months, APTN has written several times to Lorraine Augustine, chief and president of the NCNS, requesting an interview. Those requests were denied. But Augustine has said by email that, “The Native Council of Nova Scotia has always approached the issue of membership with integrity and will continue to do so.”
“The allegation of fraud is defamatory and carries serious consequences for those who this unfounded allegation is directed towards, any third party who participates in the release of this information and publicizes the defamation will also attract liability.”
In her latest email, Augustine said that the NCNS is currently reviewing the report. “The work to date carried out by NCNS has demonstrated material errors in the work and conclusions,” Augustine said in the email. “Once the work has been completed NCNS will be in a position to make a public statement.”
Augustine didn’t say what errors have been identified in the report or when the organization’s review would be complete.
According to Pam Palmater, a professor at Toronto Metropolitan University (formerly Ryerson University) and a member of Eel River Bar First Nation in New Brunswick, if there are questions about identity inside the organization, the public should know about it.
“The substantive nature of the report is something that really should be shared with all Mi’kmaw people,” said Palmater. “All of their membership should be made public to hold themselves to account when you don’t act transparency it makes people think you have something to hide.”
Hunting rights for members
The report may have an impact on a court case over the right for NCNS members to hunt. Currently, four members of the NCNS are suing the province of Nova Scotia in a class action for revoking their Aboriginal Treaty Rights Access – known in the region as an ATRA passport.
In the 1980s, the council developed this passport as a method to verify its members’ Indigeneity which gave them the treaty right to hunt, fish and harvest food for social and ceremonial purposes.
The print on the passport card issued to its members stated, “The bearer of this passport is a person of Mi’kmaq ancestry, deemed an Aboriginal person and is a beneficiary of Aboriginal, treaty and other rights guaranteed by Section 25 of the Canadian Constitution and part two of Section 35.”
The report alleged that more than 150 ATRA passport holders can’t provide “objectively verifiable evidence of Indigenous ancestry.”
For 30 years, Nova Scotia, which regulates hunting in the province, accepted the passport as proof of Indigenous identity. “The ARTA passports were only issued to those who went through a process to demonstrate that they were Mi’kmaq and that they were the beneficiaries of section 35 rights,” Andrew Lokan, legal counsel for the plaintiffs told APTN in a 2022 interview.
But in 2017, the province revoked the passports for all council members. In 2019, four members of the council, representing all former and current passport holders, filed a class action against the province.
According to court records, the four members, one who has status under the Indian Act but isn’t associated with a specific Mi’kmaw community, are asking for $40 million in damages on behalf of all former and current passport holders – and demanding that the passports be reinstated.
The class action alleged that in the fall of 2016, the Assembly of Nova Scotia Mi’kmaw Chiefs complained to the province that it should “stop accepting ATRA passports as evidence of an Aboriginal or treaty right to hunt.”
The court documents said that soon after the Mi’kmaq chiefs’ complaint, the province declared that, “Aboriginal Treaty Rights in Nova Scotia are collective rights held by the appropriate rights-bearing community which corresponds to the 13 Mi’kmaq First Nations. Eleven of who are represented by the Assembly of Mi’kmaq Chiefs.”
On Jan. 27, 2022, the class action was certified to be allowed to proceed. Nova Scotia is currently appealing the certification of the class action saying the judge erred when it was certified. It maintains that because the council is not a s. 35 “rights bearing community” under the Constitution, it can’t have Aboriginal rights.
The case to have the class action decertified starts Friday in Halifax.
According to Leroux, the council has a lot to lose if they start losing members. “They’re probably going on the assumption that if they were to admit this has been going on that it has sort of poisoned their decision-making process and will harm the lawsuit that they filed,” he told APTN.
Kim Tallbear, a professor of Native Studies at the University of Alberta, agreed. “Even if there’s an actual ancestor three or four centuries ago, why is that a legitimate claim to being Mi’kmaq today,” she said.
Canada recognizes the passport
The ATRA passports are recognized by Fisheries and Oceans Canada – better known as DFO – the federal department that regulates the fishery across the country. The passport gives council members the right to harvest lobster for food, and social and ceremonial conditions – much like the Mi’kmaw harvesters under the Peace and Friendship Treaty.
DFO confirmed to APTN that they regard the passport as valid. “In the case of members of the Native Council of Nova Scotia, the required proof of designation would be the Aboriginal and Treaty Rights Access passport,” said a statement from DFO.
But Palmater said that Indigenous fishing rights can’t go to just anyone. “Only nations have Aboriginal and Treaty Rights, have land rights, not organizations and the Supreme Court of Canada has been very clear that simply being a member of a political organization does not attach you to a nation or a historical community,” she said.
“If they’re getting funds from federal or provincial governments or anyone that’s targeted specifically for Mi’kmaw people, they too have a legal obligation to make sure that every single cent which is very minimal goes to actual Mi’kmaw people.”
According to the federal government’s grants and contributions website, the NCNS has received more than $19 million from various departments including DFO, Crown-Indigenous relations, Heritage Canada and Employment and Social Development Canada since 2019 when the class action was first filed. A number of the agreements extend to 2025.