Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 24 - Evidence - June 13, 2017
OTTAWA, Tuesday, June 13, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 9:04 a.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Good morning; tanisi.
I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening via the web. I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of the Algonquin peoples.
My name is Lillian Dyck, I am from Saskatchewan and I have the honour and privilege of chairing the Standing Senate Committee on Aboriginal Peoples.
I will now invite my fellow senators to introduce themselves.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Tannas: Scott Tannas, Alberta.
Senator Tobias Enverga: Tobias Enverga, Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
Senator Christmas: Daniel Christmas, Nova Scotia.
Senator Watt: Charlie Watt, Nunavik.
The Chair: Thank you, senators. I see we have Senator Kim Pate entering the room. Welcome.
Today, we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
Today, we will be talking about the United Nations Declaration on the Rights of Indigenous Peoples, and we have before us today Dalee Sambo Dorough, Associate Professor, Institute for Social & Economic Research, University of Alaska Anchorage; and Paul Joffe, Legal Counsel of the Grand Council of the Crees (Eeyou Istchee).
Welcome, witnesses. You will have about 10 minutes each to do a presentation. After that, we will open the floor for questions from the senators. Thank you.
Dalee Sambo Dorough, Associate Professor, Institute for Social & Economic Research, University of Alaska Anchorage: Thank you very much to the members of the Standing Senate Committee on Aboriginal Peoples for this invitation to present on your initiative to examine and report upon a new relationship between Canada and First Nations, Inuit and Metis peoples.
This initiative represents a real opportunity for the Senate to make a constructive contribution to the re-alignment of relations based on human rights, justice and reconciliation.
My key points relate to Canada's involvement in the United Nations Declaration on the Rights of Indigenous Peoples standard-setting process, the growing trend to uplift indigenous peoples' human rights and the urgent need for a comprehensive framework that fully embraces indigenous human rights.
The history of the relationship between indigenous peoples and newcomers throughout Canada, and indeed across the globe, has unfortunately been one of subjugation, domination and exploitation. We all recognize the fact that Inuit, First Nations and Metis have suffered from historic injustices as a result of their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.
However, the antecedents and legacy of colonialism remain with us, manifesting themselves in the severe disparities reflected in nearly every aspect of the lives of indigenous peoples across Canada, and certainly throughout the Arctic. In fact, it is safe to say that the historical reality is one of the key reasons for the adoption in 2007 by the UN General Assembly of the UN declaration; essentially to end this historical legacy.
The 25-year standard-setting exercise to achieve and gain the UN Declaration was based on good faith negotiations and dialogue between indigenous peoples and UN member states. In this context, the Canadian government was actively and fully engaged in these negotiations and ultimately has undertaken solemn obligations to uphold, promote and protect the human rights of indigenous peoples, consistent with the United Nations charter. And the Government of Canada was actively involved while led by both Liberal and Conservative leadership. On the indigenous side of the table, Inuit, First Nations and Metis representatives were directly involved. To be sure, the Government of Canada played a significant role in shaping and influencing the comprehensive normative standards affirmed in the UN declaration.
The UN Declaration has achieved a universal consensus and has been unanimously reaffirmed in no fewer than three different UN General Assembly resolutions. It is also important to recall that the UN General Assembly is comprised of 193 member states. However, this international human rights instrument must have meaning at the national, domestic level, where it is of greatest relevance.
Regarding its status, legal scholars and courts, including the Supreme Court of Canada, have acknowledged that although the whole of the UN declaration is not legally binding, many of its key provisions constitute both conventional and customary international law and thereby create legally binding obligations in favour of indigenous peoples.
In this regard, the International Law Association has concluded that the UN declaration articles affirming the right to self-determination, the right to culture, land rights and the right to redress, reparations and recourse are of a customary international law nature, with corresponding legally binding obligations upon UN member states, including Canada. In this way, the UN declaration has diverse legal effects.
The UN declaration does not create any new rights. As highlighted in its preamble, the UN declaration responds to the urgent need to respect and promote the human rights of indigenous peoples. It affirms a wide range of political, economic, social, cultural, spiritual and environmental rights. The UN declaration reflects and accommodates the distinct cultural characteristics and dimensions of indigenous peoples worldwide.
Many of the UN declaration articles have been invoked and affirmed in the comprehensive land claims agreements signed between Inuit and the Crown. For example, the Labrador Inuit Land Claims Agreement Act of 2005 affirms the right to self-determination; Inuit rights to lands, territories and resources, including the 12-mile territorial sea, consistent with the UN Convention on the Law of the Sea; the rights to hunting, fishing and harvesting, as well as corresponding management and co-management regimes to support subsistence and indigenous economies; as well as a host of other interrelated, interdependent and indivisible individual and collective human rights.
The rights affirmed in the UN declaration constitute minimum standards — minimum standards — for the survival, dignity, security and well-being of the world's indigenous peoples. These norms are the foundational elements for safeguarding and ensuring the continued existence and cultural integrity of indigenous peoples across the globe, including those across Canada.
Given the content and solemnity of the UN declaration and what is at stake, the future of political, economic, social and cultural relations between indigenous peoples and newcomers in Canada must be based upon the human rights framework established by the UN declaration. Furthermore, the UN declaration must be read in context with all other international human rights instruments, including the recently adopted Organization of American States' American Declaration on the Rights of Indigenous Peoples as well as the rights affirmed in ILO Convention No. 169 on indigenous and tribal peoples.
Regarding the application of the rights affirmed in the UN declaration to specific issues affecting indigenous peoples in Canada, I would submit that virtually every issue of concern to this committee, as well as the Senate of Canada, affects indigenous peoples throughout Canada. Therefore, it's imperative that the UN declaration be dealt with through a comprehensive legislative process and framework, which includes a mechanism for oversight.
I have observed the legal and political conditions that face indigenous peoples in countries across the world. The world community has embraced and affirmed the distinct status and rights of indigenous peoples. UN member states, UN agencies, non-governmental organizations, academics and others in every region of the world now commonly use the terms "human rights,'' "free, prior and informed consent,'' the "right to self-determination'' and a host of other relevant vocabulary in relation to indigenous peoples. My point is that we are well past the challenge of determining the content of indigenous human rights. The present challenge is their full and effective implementation, in collaboration with indigenous peoples.
In my view, as an outside observer, the Senate of Canada can have extraordinary and positive influence upon the effective implementation of the UN declaration and the establishment of a contemporary human rights framework. Through the UN declaration, the Government of Canada can curb the impacts of the historical legacy that we are all too familiar with, including the specific findings of the Truth and Reconciliation Commission. The intolerable socio- economic conditions and political marginalization can be substantively addressed through the realization of the UN declaration.
In my view, the Government of Canada must urgently identify the methods and mechanisms that will lead to the actual exercise and enjoyment of the human rights affirmed in the UN declaration. More important, all must acknowledge the solemn obligations undertaken by Canada in relation to developing, in collaboration with the indigenous peoples concerned, a national action plan to implement the UN declaration. Not only was this a voluntarily made commitment within the UN, but as you are all aware, it is a solemn commitment that has been repeatedly made by the current administration at both the international and domestic level.
Furthermore, there are numerous related and intersecting commitments that have been made by the Government of Canada. For instance, Canada has made additional significant international commitments to the Sustainable Development Goals as well as the Paris Agreement, which include specific reference to indigenous peoples and to human rights. As you may know, the diverse Sustainable Development Goals and the corresponding indicators were adopted by the General Assembly by consensus, including the consensus of the Government of Canada.
For many reasons, the Senate of Canada has an essential role to ensure that the government does, in fact, shift away from colonialism to demonstrating respect for and recognition of indigenous human rights.
Once again, I thank you for the opportunity to provide a few opening comments about the UN declaration. I look forward to our dialogue this morning and to continuing dialogue into the future. Quyanaq.
The Chair: Thank you, professor. Mr. Joffe, the floor is yours.
Paul Joffe, Legal Counsel, Grand Council of the Cree Eeyou Istchee: Good morning, honourable committee members. Thank you for the invitation to appear.
I would like to first commend the committee for examining the United Nations Declaration on the Rights of Indigenous Peoples and incorporating it in its work.
Let us begin with a brief history. There are over 370 million indigenous people in over 70 countries. Human rights violations, both past and present, have compelled indigenous peoples to seek effective remedies and justice outside the states in which they live. Yet it was only in 1982 that the UN created the Working Group on Indigenous Populations, WGIP, to devise standards relating to indigenous peoples' rights.
Within a few years, the WGIP began working on a draft declaration on indigenous rights. This has led to over 20 years of work, involving different UN bodies, before the declaration was finally approved by the UN General Assembly on September 13, 2017. The vote in the UNGA was 144 in favour, four against and 11 abstentions. The four opposing states, Canada, Australia, New Zealand and the United States, have all since reversed their positions.
Canada declared in its November 2010 endorsement:
We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.
On December 16, 2010, the last objecting state, the United States, reversed its position. Thus the UN declaration is now a consensus international human rights instrument.
To my knowledge, the UN declaration is the longest discussed and negotiated human rights instrument in UN history. It also was the first time that the subjects of the instrument — in this case, indigenous peoples — participated extensively along with states in its formulation. This process sets an important benchmark for indigenous peoples' democratic participation in UN standard setting.
The UN declaration continues to grow in significance. Regional and domestic courts and commissions are increasingly relying on the declaration. Also, a system-wide action plan has recently been devised within the UN with international and national dimensions. The action plan has the ultimate goal of implementing, with the effective participation of indigenous peoples, the declaration at all levels.
Now let's turn to the significance of the UN declaration.
International human rights instruments largely focus on individual rights. By affirming, for the most part, indigenous peoples' collective rights, the UN declaration fills an important gap in the international system. As the UN Expert Mechanism on the Rights of Indigenous Peoples has concluded, the UN declaration constitutes "a principled framework for justice, reconciliation, healing and peace.'' It applies existing human rights standards to the specific historical, cultural and social circumstances of indigenous peoples.
It is important and urgent that the UN declaration be extensively used to interpret Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, as well as other relevant Canadian law. The significance of the UN declaration has been further reinforced by the Truth and Reconciliation Commission of Canada. Sixteen of the 94 calls to action are tied to the declaration.
Call to action 43 calls for:
. . . federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
Thus, the UN declaration and the TRC calls to action are inseparably linked. Those who choose to undermine the UN declaration are also undermining Canada's national reconciliation initiative. The TRC may be the most important commission ever created in Canada. In particular, its reports serve as a critical catalyst to bring about the type of far- reaching reforms that are desperately needed in Canada.
In May 2016, at the UN Permanent Forum on Indigenous Issues, the indigenous affairs minister, Carolyn Bennett, declared on behalf of Canada:
By adopting and implementing the Declaration . . . We are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada.
In February 2012, Canada indicated to the UN Committee on the Elimination of Racial Discrimination:
While [the UN Declaration] had no direct legal effect in Canada, Canadian courts could consult international law sources when interpreting Canadian laws, including the Constitution.
This would necessarily include section 35.
In the 1987 Reference Re Public Service Employee Relations Act, which is in Alberta, Chief Justice Brian Dickson of the Supreme Court emphasized that declarations and other sources of international human rights law "must . . . be relevant and persuasive sources for interpretation of the Charter's provisions.''
I would like to close with a few words on sustainable development, poverty and human rights.
In September 2015, the UN General Assembly adopted, by consensus, a key instrument for achieving sustainable development globally. It's called Transforming our World: The 2030 Agenda for Sustainable Development. In particular, states resolved:
. . . between now and 2030, to end poverty and hunger everywhere; to combat inequalities . . . to protect human rights and promote gender equality and the empowerment of women and girls; and to ensure the lasting protection of the planet and its natural resources.
In 2012, in The Future We Want, the Rio+20 UN Commission on Sustainable Development recognized the importance of the United Nations declaration in the context of global, regional, national and subnational implementation of sustainable development strategies.
In February 2017, Prime Minister Trudeau mandated a new Working Group of Ministers, chaired by the Minister of Justice, to review relevant federal laws, policies and operational practices. The purpose is not only to ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights, but also adhering to international human rights standards, including the United Nations declaration. At the same time, the working group is required to support implementation of the TRC's calls to action.
Now is the time for the government to work with indigenous peoples to effectively realize the UN declaration in Canada. Thank you.
The Chair: Thank you very much, witnesses.
We'll now open the floor for questions from senators, starting with our deputy chair, Senator Patterson.
Senator Patterson: I think the committee is very fortunate to have witnesses who have had decades of experience in Aboriginal rights and Aboriginal law. I'm happy to see them, having known them both for many decades myself.
I'd like to start off by asking Mr. Joffe a question. It was only in May 2016 that the Government of Canada announced it would adopt the UN Declaration on the Rights of Indigenous Peoples in Canada without qualification. I'm wondering if you could tell us, has the declaration been used by indigenous peoples in Canada, Metis, Inuit, First Nations, to advance their interests since that federal announcement?
Mr. Joffe: Yes, there are cases going to the courts. I looked up and found in the database about 36 cases maybe about a month ago.
There are problems in some of the litigation. I'll mention that first. One is that some individuals, out of desperation, who are impoverished, go before the courts without any legal counsel. Those cases do not go well. As you know, that's a problem that the legal system deals with in all areas.
The other problem is that a lot of legal counsel, even representing indigenous peoples, aren't familiar with the UN declaration. They add it to their Statement of Claim, but unfortunately they are not even able to argue what the declaration is, so it's not always defended.
Having said that, there was a case, for instance, with Inuit in, I think, Newfoundland and Labrador. Some of the declaration was seen positively by the court, but the court asked the question, and it's in the ruling: "Can you tell me or give me any reference as to how the declaration can be applied to the Constitution?'' And they couldn't. But as I referred to earlier, even the former government had said to the Committee on the Elimination of Racial Discrimination that the declaration can be used with respect to Canada's Constitution. That's why I'm saying some of the results aren't the best.
The Metis raised it in a health case recently in Ontario, and it was well taken by the court. It was to do with the health of a Metis child, and there the court did refer to the commitments of the government and they also referred to the UN declaration as setting the context for how they went about the case.
In terms of First Nations, there have been some cases that, like I said, were well argued and others not, so you have a range of how courts have looked at it. I'll give an example of what I mean: The courts, to a large degree, but not always, do not know that you do not sign or ratify declarations. So in their reasoning, they would say, "Well, Canada may have signed it but they have not ratified it.'' Well, both points are wrong. In declarations, you don't do either. It even says so on the federal government website. That's an example of why the declaration, to date, has not led to as high of a standard and discourse as applies to other human rights that you have in Canada.
Senator Patterson: Thank you for that.
Now, I'd like to specifically ask a question about the Inuit regions of Canada, all of whom have settled, beginning with the northern Quebec Inuit. I know you are very well familiar with that, Mr. Joffe, having worked for our colleague Senator Watt when he was president of the Northern Quebec Inuit Association. I believe you also worked with that organization before it was established. But all the Inuit regions have settled comprehensive land claim agreements, which basically surrendered their Aboriginal title to land, I believe. You can correct me if I'm misstating that.
Article 27 of the declaration says that states must establish a process to recognize the rights of indigenous peoples pertaining to their lands, in which indigenous people should participate. I think that's happened in Canada. Some might say imperfectly, but I think that has happened in Canada with Inuit in all the Inuit regions. So that's Article 27.
Then Article 28 has this famous phrase that is so often used in connection with resource development projects: free, prior and informed consent. Article 28 talks about the rights of indigenous people to have redress and compensation for "lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent..''
Here is my question: How does the UN declaration line up with settled land claims in the Inuit lands? Because there are people who say, "Well, wait a minute. You can't develop this project because of the UN declaration; you need our free, prior and informed consent.'' This came up in connection with a large uranium project in the Kivalliq where an organization called Makita was recommending there be a plebiscite or vote among the Inuit. But Nunavut has a settled land claim where rights have been adjudicated and settled and an environmental review process that determines whether projects should proceed or not and under what conditions. Interestingly, that process rejected the Kiggavik uranium project recently.
The question is: Where there has been a settled land claim, and I'd say that's the case in all the Inuit regions of Canada, would you say that the process of resolving resource development set up in that land claim process, imperfect as it may be, supplants, takes over or supersedes this right to free, prior and informed consent set out in Article 28? People are thinking this gives new rights on top of what they've already settled in their land claims. How do the two work together, bearing in mind that the land claims agreements have constitutional protection in Canada?
Mr. Joffe: Thank you for those questions. We like the specific and hard questions. We appreciate it.
Well, first of all, I should say something about surrender and extinguishment in terms of human rights. In international human rights law, there is no extinguishment of rights. You cannot extinguish human rights. You can reach some balance, you can limit them at times, as you limit human rights in the Charter according to article 1, but you cannot surrender or extinguish.
The whole thing is, yes, I was involved with Senator Watt in the Inuit land claim. It was the first one relating to the James Bay Northern Quebec Agreement, Sometimes the situations are pretty compelling, and they were faced with the hydro project.
The whole purpose of the declaration is that the minimum standard in the declaration is consultation and co- operation with indigenous peoples. You'll find that in article 38. That's the first thing.
As we're moving forward, regardless of some of these earlier agreements, the purpose is: How can we have reconciliation in Canada? How can we cooperate? How can we respect everyone's rights and, in this case, human rights? The dialogue to date doesn't even include the term "human rights.'' When you hear about a resource development, you never hear someone saying, either a corporation or the government, "We are really concerned about your human rights.'' It has not really been dealt with in this context.
On the other hand, in any situation, none of the rights in the declaration are absolute. Human rights are generally relative. They are not absolute. The one exception you will see in Article 7 is genocide. It is an absolute right to be protected against genocide, but generally it's relative, and where you go for that is article 46(3), which sets out a lot of the fundamental principles that relate to the whole declaration. And these are the core principles of the Canadian legal system and the international system, and they are also the principles that have been denied indigenous peoples throughout history: equality, justice, nondiscrimination, government governance and good faith.
The task and challenge now, no matter if there have been agreements, is: How do you build it based on a contemporary human rights framework and move away from colonialism, which is and was the framework on which this was negotiated in the first place? It wasn't easy. In moving forward, as you see what the TRC mentions, it is about reconciliation. It's about finding a way to come together, to cooperate.
If there is a new development, of course you want to base it on what the appropriate standards internationally are. As Dalee mentioned, it is not only the UN declaration; there is a working group on transnational corporations and business enterprises. They set standards. When you put it all together, consent is part of that.
The last thing I'll mention is that with consent — free, prior and informed consent — which, by the way, is the same thing as consent in Canadian law, because any consent has to be "free.'' If there is duress, that's not valid consent. "Prior'' — if you get consent after the project, that isn't consent either. Third, "informed'': If you don't provide all the necessary information, you don't have consent.
So the two are the same, really — Canadian law and international law — but consent does not originate in the declaration. As Dalee mentioned, the declaration does not create new rights; it's inherent rights and it's in preambular paragraph 7. Where it does come from is the right of self-determination, which is in the two international human rights covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Identical Article 1 is the right to self-determination.
Canada ratified it over 40 years ago, in 1976, and one of the sub-articles of article 1 is that states such as Canada have a duty, an affirmative obligation, to respect and promote the right of self-determination. So why was this right never used all this time when it existed at the time when Senator Watt, the Inuit and others were negotiating the declaration?
I'm just saying, let's take the full human rights context. If reconciliation and what happened in residential schools were so tragic, let's build it on a solid basis — not on colonialism but on a contemporary human rights framework.
Ms. Dorough: I have just a quick comment about the use of particular terms. From my point of view, and technically — for example, the title of the so-called land claims agreement in Alaska was the Alaska Native Claims Settlement Act. It's hugely problematic in terms of recognition of rights. There are numerous problems with the act and the lack of address of the right of self-determination, for example.
The use of the termed "settled,'' in the Canadian context, is not actually accurate, because they are agreements that, as you rightly pointed out, are protected by section 35 of the Constitution Act. The use of the term "settled'' leads me to my point about the constant play of human rights: Simply because a comprehensive land claims agreement has been agreed to after decades of negotiation doesn't mean the indigenous human rights standards and norms are no longer relevant. Indeed, it may be argued that they become even more relevant to the procedural aspects of gaining the consent of the peoples concerned, especially in the event of potential adverse impacts to a wide range of human rights.
The processes, procedures, mechanisms and so forth that may have been very carefully specified in a particular land claims agreement can be informed, and should be informed, by international human rights instruments, including the UN declaration, especially where there are challenges and difficulties in the interpretation of the land claims agreements. This is an important intersection of international human rights law and the domestic context and the challenges that indigenous peoples face.
I just wanted to offer two other comments related to your initial question about whether indigenous peoples in Canada have invoked the UN declaration, either domestically or otherwise. It should be acknowledged that, first, even before the UN Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly in 2007, indigenous peoples were invoking the draft declaration. This is highly significant, because states were then reacting and responding to international human rights norms and standards that had not even been crystallized in terms of their formal adoption by the UN General Assembly. It is not only the case here in Canada but certainly internationally throughout Latin America and elsewhere, indigenous peoples were integrating the normative standards into pleadings at the domestic and national level, but also at the international level — as Paul pointed out, the Committee on the Elimination of Racial Discrimination — that indigenous people were invoking them in draft form.
Indeed, on the language of the declaration, I made reference to the customary international law nature of key provisions of the declaration. The arguments made on behalf of indigenous peoples were on the basis of state behaviour and state customs and practices. If you think about the situation here in Canada and recognition of the collective rights of Inuit — the use of the term "peoples,'' for example — it was this kind of state behaviour, state custom and state practices that indigenous peoples were able to point out and say, "Look this already exists in your Constitution, it already exists in your legislation and it exists in your administrative law. It exists in many different contexts.''
That became a compelling argument, because states throughout Latin America and elsewhere then had to pause and recognize that, yes, indeed, their state behaviour was consistent with what indigenous peoples had hoped for in the specific language of various articles of the declaration and that were ultimately crystallized in the form of the declaration and its adoption in 2007.
I don't have the detailed listing of cases, for example, but there is a long-standing record while the declaration was in its draft form and since its adoption in 2007.
The Chair: I'm going to follow up with a supplementary. It has been a very good conversation. Thank you for those questions and thank you for those insightful answers.
When we talk about rights, we are often talking about very concrete things like resource development and land claims, but it is a question of human rights. As we know, worldwide, often women do not have the same rights as men. Are there any examples of countries that have signed on to the UN declaration that have been more successful in granting equality rights to women than others? If so, what would be the factors that have allowed the rights of indigenous women to be recognized and become more equal to those of men? As you know, with the colonial system, often what happened was that the rights of indigenous women have been taken away. For example, under the Indian Act, we were just discussing a bill to eliminate the sex discrimination with regard to Indian status or citizenship. Are there examples of where the United Nations Declaration on the Rights of Indigenous Peoples has proved to be helpful to restoring equality rights for women?
Ms. Dorough: First of all, historically, that single provision — Article 44 of the UN declaration — was the first article agreed upon by consensus between indigenous peoples and, in particular, member states, that the rights affirmed in the UN declaration equally are guaranteed to male and female individuals. And so the point being that yes, this was a key and central issue with regard to gender and gender equality.
I would submit that the trend has been now to ensure that in every process at the international level, indigenous women are direct participants in a meaningful and effective way. So even in the context of all of these other subsequent developments since the initial drafting of the UN declaration, the guarantee of direct indigenous women's involvement has been stunning. Indeed, there are still problems that exist in terms of equity but, just by virtue of this exercise alone, an intellectual and political space has been created to ensure indigenous women's representation.
With regard to what has happened at the domestic level, there is a host of examples that have been aided, in particular by UN Women and the UN agencies that are active at the country level throughout Latin America. The cottage industries that are primarily run and function by virtue of the energy and contributions of indigenous women are but one example.
When it comes to the issues that plague indigenous women throughout Canada, and I have to say unfortunately throughout the Arctic region and indeed across the globe in terms of violence against indigenous women, the issues of murdered and missing women here, there is a long way to go. I think there is an important linkage between what the declaration has done in shedding light on these particular issues, which remain shocking, but as far as drawing attention to them and utilizing the declaration to curb these problems, the language of Article 44 and the advocacy of indigenous women themselves offer an opportunity to again curb those atrocities and problems.
But the final thing I want to say about this in terms of gender equity and equality is that Article 44 itself also has to be read in context with all the other articles and the place and the status of indigenous women in relation to rights to land, territories and resources, the right to participate directly in matters that impact you and your rights, the right to safeguard your traditional economies, et cetera. If you begin to think about the role of indigenous women in all of these interrelated and indivisible and interconnected ways, you can see that this creates an important substantive platform for women to create the gender equality and to achieve the gender equality that they rightly deserve, not only by virtue of the UN declaration but all other international human rights instruments.
Mr. Joffe: I will add quickly that there is no question indigenous women are quite powerful in the many processes we're involved in. The problem is that in looking at the whole global picture, I don't think one can say that indigenous women are being sufficiently protected by any means in any area. And even though the UN says, "Yes, you have to take a gender-balanced approach,'' that's all fine, but on the ground, these issues are coming up all the time.
One thing that can be helpful is you take a look at Article 22(1). I'll read it:
Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.
That means one has to take this declaration and use the lens of each of those persons mentioned. You look at it from the point of view of elders and see how it applies, for youth, for women, for persons with disabilities and children. And as Dalee mentioned, you combine it with other international instruments and domestic instruments and you put it all together and you try to improve all those areas. But that's the way we do it. We never, as Dalee said, look at one provision in isolation. You read the declaration as a whole and then you add international law and hopefully Canadian law.
[Translation]
Senator Mégie: Thank you for all your explanations. However, I am puzzled by the fact that you said that Canada was one of the four countries that voted against it and that, at one point, it changed its mind. I note a significant discrepancy between the change of mind in 2010, and the announcement in May 2016 that Canada was going to implement this statement. I think this is a pretty significant discrepancy. Do you have an explanation for that?
[English]
Mr. Joffe: There is no question there is a big difference between 2010 and 2017. In all fairness, without being too critical of the former government, they weren't really committed to human rights. In our understanding, they had a different ideology. First of all, indigenous people's collective rights weren't accepted as being human rights.
There was pressure to endorse because Canada was the second to last country in the world to endorse. They knew President Obama was about to endorse, and they didn't want to be the last country in the world and that's why they endorsed, but since that time, they continued to undermine the UN declaration.
What we have now is an acceptance of international human rights standards. And again, the Liberal government has been great on some of these policies to set a principled contemporary framework, but we haven't seen yet the actual delivery in terms of implementation, and indigenous peoples sorely need that. Without the implementation, we're going to be stuck where we are.
Senator Enverga: Thank you for the presentations. You must have heard about the debate with regards to our Indian Act on the 16, all the way. Have you heard about that? Can you tell me, what is the relationship with that? Is it part of the United Nations declaration? Is that something that we should look into so that we can totally be compliant with the United Nations declaration, the 16, all the way?
The Chair: Perhaps as a clarification, Senator Enverga is referring to 6(1)(a) in Bill S-3 amending the Criminal Code to eliminate sex discrimination.
Mr. Joffe: Well, I wasn't involved in that 6(1)(a) issue, but basically we're talking about discrimination, and in international law, the principle of racial discrimination, or the right not to be discriminated against based on racial grounds, is considered customary international law, if not a peremptory norm. In other words, it's at the highest level of norms. It's something that all countries profess they support. We know that countries may say they support it, but their actions often don't meet up to it. But in law, it is still one of the highest standards that exists. If one applies that, in fairness and considering the number of years that indigenous women and their children have been affected, people feel there should be greater justice.
Ms. Dorough: I think one of the messages that I tried to share was that shift away from colonialism to a human rights framework.
Think about adoption of such policies like the Indian Act and certainly, in the United States, the imposition of purported plenary power, which is the essentially the idea that one people has the right to deny or violate the rights of others. Without a human rights framework, at that level of discrimination, whether it's on the basis, as Paul has said, of racial discrimination or gender discrimination, the UN declaration has quite a number of different provisions that would inform contemporary society about how to, as I said before, curb or erase such policies that have had dramatic and adverse impacts on the cultural integrity of indigenous communities, nations and peoples here in Canada.
I won't pretend to be intimately familiar with the legislation that you're talking about or the impacts of the Indian Act themselves, but I think that it's crucial to say that these past laws and policies really ought to be upended in favour of recognition of and respect for indigenous human rights and how indigenous peoples define their own membership and the roles and responsibilities of their own membership.
There is an extraordinary opportunity to advance policies that are consistent with these human rights standards, both the indigenous specific human rights standards in the UN Declaration as well as other international human rights law.
Senator Enverga: If we don't allow 6(1)(a) all the way or allow women to get the recognition that they deserve, would you say that if we don't pass that, we will not be complying with the United Nations declaration?
Ms. Dorough: I apologize, because I'm not familiar with the language of the bill that you're referring to.
The broad and general statement that I would have to make about this particular question is that nearly every government on the face of the earth is not in compliance with the UN declaration. In terms of efforts to be much more responsive to the rights, the status and interests of indigenous peoples and indigenous women here in Canada, they can be informed by the declaration.
Again, I apologize for not being intimately familiar with the proposed efforts to move away from the Indian Act to greater recognition and respect for indigenous women and indigenous peoples as a whole.
Mr. Joffe: I have just a quick comment. I get a feeling in the room that people agree that women face many challenges in terms of discrimination and violence, et cetera. Like Dalee, I am not familiar with the fine details of 6(1) (a), but when one looks at how women are being affected, it's not only that issue alone. One has to take the whole context. If the whole context is pretty bleak to start with, that's not the same thing as if someone is really healthy and things are going along great and then there's this problem that comes up. That's not a realistic context.I can't give the details for 6(1)(a), but I'm just saying usually you have to take the real context before you decide what really needs to be done.
Senator Enverga: My last question is a short one: Out of the 193 member states of the United Nations declaration, can you tell me where Canada stands? Are they in the top or in the middle? Can you tell me how much Canada has complied with this declaration as compared to other countries?
Mr. Joffe: That's a tough one. I'm trying to look for the positive side.
As Dalee mentioned, there's a lot of work to do in terms of the indigenous rights of peoples. You know yourselves, in all these areas, whether it's resource development, the Indian Act or housing and essential services like drinking water, you can pick any area and one has to conclude that there's a lot of work ahead.
What we're trying to bring as a message is let's have that human rights discourse. Let's put it in a contemporary setting and look for real solutions. We believe that the declaration stands for co-operation — no more deciding the policies on water alone or these other problems and challenges. Let's find it together. Finding it together and having a human rights discourse changes the dialogue. We're going to raise the level of what the standards are just to have the discussion. Then we can decide. But if we're not speaking the same language, we're never going to get to the bottom of some of these problems.
Ms. Dorough: I think it's hard to generalize. We have to think about these issues relative to the political arena and the political context.
We are cognizant of the gross human rights violations that are perpetrated against indigenous peoples in parts of the world where there is no democratic system and there are no democratic principles at play. The marginalization is shocking in terms of the conditions.
I was recently invited by the prosecutor's office, on behalf of the government of Brazil, during a short time frame to make some commentary about the land rights of indigenous peoples throughout Brazil, which, as you can imagine, are huge and very threatening issues. A number of indigenous peoples were murdered. Indigenous leaders were murdered and criminalized solely because they were trying to advocate for their rights to land.
Relatively speaking, in North America — the United States and Canada — and in Norway, Sweden, Finland and others in the so-called North, we have a political arena and systems that really invite taking the right path as far as the recognition of the rights affirmed in the UN declaration.
In the United States, for example, one of the most affluent countries on Earth, in that reality and that political arena, you can begin to look at the statistics of Alaskan native people, which are my own people, the Inuit people throughout the northern region in Alaska: the epidemic of suicide; the fact that there is not potable water in a number of our communities; as Paul said, the housing conditions; the violence against women; the broad range of socio- economic conditions; and the lack of good governance in this regard. We have the ways and means to close those gaps and to effectively be responsive through the realization of the rights affirmed in the UN declaration.
It's very hard to generalize where Canada stands. I would simply suggest that, as a democratic government where basic rights are recognized and respected in terms of the democratic principles, all it spells to me is opportunity to be responsive.
We hear too often the horror stories of what takes place and what pressures indigenous peoples suffer from on a day-to-day basis. It takes nothing at all to find these kinds of stories on the Internet. They are realities. It's not just some faraway story. It would be very unfortunate if our society becomes insensitive to such shocking violations.
Senator Pate: Thank you, witnesses, for your testimony. Further to your response to Senator Dyck's questions, I have a large question with two parts.
Dr. Dorough, in your chapter on human rights for the UN Department of Economic and Social Affairs, you talk about drawing attention to the indicators of discrimination against indigenous people, including high rates of incarceration and violence against women.
You also talk about the issue of indigenous peoples who are defending their rights — you mentioned it here today — who have been criminalized and, in some cases, killed, in some parts of the world, as being part of the challenge that needs to be looked at. As you're probably aware, in Canada, Beatrice Hunter was recently jailed for actions surrounding a protest. As a woman and a protector of the land, she was part of a protest for a development project begun on Inuit land that was done without consultation with the community.
In that broad range, could you please comment on the connection between self-determination in the context of nation-to-nation relationships, in terms of over-incarceration and violence against women, and the phenomenon of criminalizing those with who are working to protect the land and how that relates to their ability or inability to exercise human rights? Also, what do you think we might be able to recommend and how could we work to address this through the nation-to-nation process and the report we're working on?
Ms. Dorough: You're absolutely right about this phenomenon of criminalization of indigenous peoples who seek only to protect and promote their human rights. First of all, it's important to acknowledge that states, including Canada, by virtue of their membership in the United Nations, have a solemn obligation to uphold one of the key purposes of the United Nations; namely, to promote and protect human rights.
Even on this elementary level, the example you offered is a violation of an individual human right. I can only presume that Beatrice was acting not only as an individual in terms of her political views and opinions as an indigenous woman but also on behalf of the views and the voices of the nation and of her people. What you speak about is a legacy of colonialism and reflects systemic discrimination in terms of the justice system, the law enforcement system, the over- incarceration and the criminalization of such individuals.
We face similar statistics in terms of the population in Alaska. We make up approximately 17 to 18 per cent of the total population, yet indigenous people in Alaska represent approximately 40 per cent of the prison inmate population. That is indicative of systemic discrimination within the system. Again, it's a holdover of many of the effects and impacts of colonialization and the doctrine of superiority, against which the UN established anti-discrimination over however many decades ago. The UN went through three different decades to end racial discrimination.
Regarding the opportunities to address these particular issues and the ability to address such violations, there is a range of different opportunities. This is one reason why there is an urgent need for comprehensive legislation that touches upon every element and standard affirmed within the UN declaration.
I'll just give you an example of the efforts in Alaska. During the Clinton administration, throughout the mid to late 1990s, President Clinton signed a number of different executive directives affirming the nation-to-nation relationship between the United States government and Indian tribes, including Alaska native tribes. The executive directive called upon every federal agency to have ongoing dialogue and consultation with, and to achieve policies and programs in collaboration with, Indian people across the United States to ensure that there was respect for their distinct status and rights, and also to find ways forward in order to create that nation-to-nation relationship.
The Department of Justice, in particular, began funding but also educating themselves about the conditions facing indigenous women. They put in place the Violence Against Women Act. They funded — and it continues to this day — in order to cultivate the responses by the communities themselves, but even more significantly, to raise awareness among the federal judicial system, enforcement system and everything, as well as at the state level — for example, the State of Alaska. I point this out as an example of how something comprehensive can be done to be responsive to these distinct and systemic conditions.
Simultaneously with what President Clinton did in terms of these executive directives, the State of Alaska was responsive as well. The governor of Alaska at the time, Tony Knowles, decided that it was important to have this dialogue and to interpret what was happening at the international and national levels with what was going on in the State of Alaska as a political subdivision of the United States.
These were important issues, so he initiated a dialogue over a year long between the State of Alaska and Alaska native tribes and put in place what was referred to then as the Millennium Accord. This was a directive to have every department of the state government, like the divisions of family and youth services, the Department of Justice, the Department of Environment and Conservation, to engage in a similar government-to-government dialogue with Alaska native tribes to seek out ways in which we could resolve some of the huge disparities, especially within the Department of Justice, on very fundamental things like the Indian Child Welfare Act. How do we maintain the integrity of communities by ensuring that the children aren't adopted out? How do we maintain cultural integrity when individuals are faced with criminalization for standing up for their Aboriginal hunting and fishing rights, for example?
There is a range of opportunities. We do have the ability to be responsive to the systemic discrimination. One element of it, as well, is education and an accurate reflection of the history that has unfolded between Canadians, as you have noted in your order, and "newcomers.'' All of these particular issues can be looked into in dialogue and collaboration with indigenous peoples to seek the opportunity to identify ways forward.
This phenomenon of criminalization of indigenous peoples has to be dealt with in a comprehensive fashion. Racism is an issue, and the racial discrimination is a reality, but it can't be solely about "them and us;'' rather, it has to be informed by a human rights framework. And as I said earlier, it's basic democratic principles and good governance so that the human rights are respected and promoted and protected and not used as an argument to continue jailing individuals on the basis of their desire to exercise their human rights.
I'm sure there are numerous statistics about this particular matter in Canada similar to that of conditions in Alaska and elsewhere in the United States.
Mr. Joffe: To add to Dalee's discourse and concerns, it all boils down to the fact that the problem begins right at the beginning when you say "jailed for protest,'' so if you mischaracterize what is going on and you call it a protest, you are right away heading in the wrong direction. Indigenous people and not only indigenous but in this case we are talking about indigenous, are certainly not protesting. As you mentioned, they are protecting the land. If one considers what the relationship is, the land is critical. It helps to define their identity and their culture. There are so many different aspects. It gives them their sustenance or their subsistence, et cetera.
The international system has become such a serious issue that they now appoint a special rapporteur for human rights defenders, and they've come up with different terms. Sometimes it's human rights defenders, sometimes it's environmental defenders, and now they are referred to by the term environmental human rights defenders. But whatever term you take, it's so serious that there is a special rapporteur internationally. There is a special rapporteur on human rights in the inter-American system. Even in Europe, they are so concerned about what is happening under the guise of so-called protest, when it is not really an issue of protest, that they too have a policy in terms of human rights defenders.
Now, the other thing is UNICEF has talked about poverty and has said that poverty is not just a word or it's not just a condition. Poverty is a denial of human rights and human dignity. And again, for most indigenous peoples, there is the issue of poverty; impoverishment would be more accurate. We were having a friendly negotiation with Latin American indigenous peoples, and they said, "Don't dare to call it poverty. You can call it impoverishment.'' Again, if we add poverty to that whole context, or impoverishment, we are getting a totally different context.
So what are those people supposed to do? What if there is no discourse on the basis of human rights? What if it's on the basis that, if you break the law, you're going to jail for breaking the rule of law, but you are not violating the rule of law. The law is not equivalent, necessarily, to the rule of law, and we should be talking about the rule of law.
When you take everything Dalee has said and you add these other aspects, I should mention Article 7 in the declaration because it deals with the right to security. You combine it with the right to subsistence. In Article 20, you have food security. When you combine it with the right to lands, territories and resources, you have territorial security. When you combine it with health issues, which often arise in these situations as well, you're talking about human security. And when you talk about how it relates to the environment, you're talking about environmental security.
So this is an example of how you can use the UN declaration to get into, in a profound way, all of these issues. And then the language is very different. The common language becomes human rights. The common language is to look for reconciliation and to cooperate, not to put someone in jail. That just adds to the statistics.
Ms. Dorough: I quickly wanted to mention a resource that would be responsive to your specific question, and that is a volume about access to justice that was edited by Wilton Littlechild and Elsa Stamatopoulou, and I believe that Columbia University printed that particular volume. Essentially, in the chapter that I was invited to prepare for that volume, I basically turned the UN Declaration on the Rights of Indigenous People into a chapter for access to justice because its implementation would result in greater and increased access to justice on the part of indigenous people. So I wanted to mention that as a resource to yourself but also other members of the Senate.
Senator Pate: Thank you very much for that and I will look for it, but we can also ask the clerk to get that and distribute it as well.
The other piece I am interested in is the issue of indigenous women, and you mentioned the over-incarceration. As you may be aware, more than one in three federal women prisoners are indigenous; and 43 per cent of the young girls in custody are indigenous. There is the under-protection that's evidenced by the missing and murdered indigenous women, the entrenched gender discrimination that our chair has already talked about in terms of Indian Act and the attempt to get rid of some of what is in play, and another piece of legislation that we are looking at. Are there ways you have seen where the nation-to-nation discussions have ensured that the rights of indigenous women in particular are recognized and held at the forefront, in terms of the greater likelihood of not being protected by the rule of law and using the rule of land to criminalize and imprison them, not just in land rights or land protection cases, but overwhelmingly in violence cases and more generally in terms of their impoverishment?
Ms. Dorough: I have seen examples, especially in Latin America, that may prove useful, and that is what Paul mentioned previously in regard to paying particular and special attention to the needs of indigenous women. That has been the dialogue between the various different levels of government, the national and in this case provincial and territorial governments, with indigenous women specifically so that they can amplify their particular needs and concerns.I have seen this in a number of different countries throughout Latin America where distinct fora and series of meetings take place between the relevant actors in order to gain and understand better how these particular issues impact indigenous women and how to overcome some of the systemic discrimination and gender discrimination of indigenous women from the local community level to the regional level to the national level. And, of course, that has helped to inform what takes place at the international level.
I think important dynamic to the conversation going forward to realign and reform and recontextualize the relationship between all Canadians and indigenous peoples is to have the distinct settings in an environment where indigenous women feel safe to raise the hard issues. Think about the experiences in a court of law and indigenous women being forced to recount events and so forth, but creating a distinct and different environment that allows them to address these particular issues and add content to the rights affirmed in the UN declaration and how they impact indigenous women in a particular way.
Senator Pate: Thank you.
Senator McPhedran: Madam Chair, may I be allowed, before I actually ask my question, to read briefly into the record to set my question in context?
The date of this Canadian broadcasting report is August 2, 2016, and it starts with:
There were cheers in the United Nations as Canada officially removed its objector status to the UN Declaration on the Rights of Indigenous Peoples . . .
The quote for Minister Carolyn Bennett is as follows:
We are now a full supporter of the declaration, without qualification. We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.
That's the context for my question, to which there are two parts.
The first part goes to the force, credibility and usefulness of an international human rights instrument that is entitled "declaration'' as distinct from an international human rights instrument that has the title "covenant,'' "treaty'' or "convention.'' As you well know, as experts in international human rights law, a declaration is typically treated as a high-level policy statement when it has been adopted by the UN general assembly. Typically, a declaration is not treated as having the force of international law.
I think I heard, in the presentations earlier today, some indication that you are of the view that the development of the declaration, the engagement of the subjects of the declaration and the use of the declaration really has reached the state of customary international law. I would like you to clarify if I have understood you correctly, and then, depending on your answer, I'll go to the second part of my question.
Mr. Joffe: These questions have all been very helpful, so I thank you.
In terms of objector status, that's a bit of a myth in law because we're talking about the Conservative government of the time. They never objected to the whole declaration. I counted the articles, and I think they objected to 13 out of 46 articles, and they didn't object to the 24 preambular paragraphs and they didn't continuously develop that. For persistent objector status, it has to be uniform for the country, and certainly, it is false to say that there was a lifting of persistent objector status in 2017. How could you have the Conservative government saying, "We are now confident that we can interpret this whole declaration in accordance with Canada's Constitution and laws?'' That alone would lift the persistent objection, not that they had it in the first place, so let's put that aside as a myth.
Now, on adopting "in accordance with the Canadian Constitution,'' some have seen that as a limitation, but in our view it's not a limitation because Canada's Constitution can always take into account international human rights law. It's not fixed and it is being done all the time for the Canadian Charter. The court does that all the time. There are many cases. The big question is: If it's done for Part I in terms of human rights and the Charter, why isn't it done for Part II, section 35, when it's the human rights of indigenous peoples? That could be seen as a discriminatory double standard.
That we can get over too, because it should be applied. I should say, in the Tsilhqot'in Nation case, the Supreme Court said Part I and Part II are sister provisions. Both serve to limit the jurisdiction of federal and provincial governments. We are getting there, but we are not there yet. We are not talking the same language, and it should be a universal language.
Now, regarding the use of international declarations versus international treaties or covenants, it was the decision of indigenous peoples — and it was a strategic decision — to stay with the declaration because a lot more progress could be made in terms of getting a principled framework. Had the negotiations begun with a treaty, we wouldn't have had the same result. Everyone would have been so worried that there would have been many more limitations. That's called soft law, if you want, in legal terms, and treaties are considered hard law. The thing that's not a problem — it's actually a good thing — is that now the boundaries between soft law and hard law are increasingly blurred, and I'll give you an example.
In the UN declaration, indigenous peoples insisted only in using the word "shall;'' states "shall'' do this. There is no "may,'' there is no "could;'' it's "shall.'' Often, if you look up certain international treaties, you will find words like "could'' or "may.'' So which is the stronger? The "could'' in a treaty, or the "shall'' here?
The other thing is the UN declaration is being continuously interpreted by the human rights bodies who bring it in: for example, by courts like the Inter-American Court of Human Rights; the African Commission on Human and Peoples' Rights; the African Court of Human and Peoples' Rights and domestic courts. It is gaining a jurisprudence. It's not alone; it's not just the UN declaration in isolation. It is being connected to Aboriginal and treaty rights. It is being connected to these treaties.
Dalee mentioned the Indigenous and Tribal Peoples Convention, 1989. We were both involved in that negotiation. One of the things that people don't know or don't mention is that article 35 of that convention shows how there is a legal effect, as Dalee was talking about, from the UN Declaration. It says:
The application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other . . . international instruments.
The peoples referenced are indigenous peoples.
Well, what is another international instrument? It's the UN Declaration, so the whole convention cannot be interpreted in a way that goes less than the UN Declaration, to take that example. So here you see the UN Declaration having legal effect on a binding convention.
So it's a lot more subtle and complicated. I'm just giving these examples. And today we've had the discussion amongst indigenous peoples and states regarding whether there should now be a convention on the rights of indigenous peoples. A lot of us, but not everyone, feel that it's not a good idea because a lot more progress is made through all these interpretations through all these bodies, and if states can't, as Dalee mentioned, respect the UN declaration, they are certainly not going to get into a more binding and higher standard of treaty.
Ms. Dorough: I want to point out that in international human rights law, there is a common reference to the International Bill of Human Rights, which includes the International Covenant on Economic, Social and Cultural Rights, the International Covenant and Civil and Political Rights and the Universal Declaration of Human Rights, of which we are all beneficiaries as human beings. In this way, the provisions of the UDHR, like the provisions of the UN Declaration on the Rights of Indigenous Peoples, have become customary rules.
As I said in my introductory remarks, although the whole of the United Nations Declaration on the Rights of Indigenous Peoples is not legally binding, there are essential and important provisions that are in the neighbourhood of customary international law.
In addition, I would argue that, like legal scholar James Crawford, who is no intellectual slouch about these matters, has stated:
Even when resolutions are framed as general principles, they can provide a basis for the progressive development of the law and, if substantially unanimous —
— which the United Nations Declaration on the Rights of Indigenous Peoples now is —
— for the speedy consolidation of customary rules. Examples of important "law-making'' resolutions include . . . the United Nations Declaration on the Rights of Indigenous Peoples.
The former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, has also expounded upon the customary international law nature of key provisions of the UN declaration.
You have to keep in mind as well that all of the rights affirmed in the UN declaration are interrelated, interdependent and indivisible. If you take, for example, the right of self-determination, it has extraordinary meaning in relation to those provisions of the declaration that affirm the right of indigenous peoples to free, prior and informed consent and also in the area of the right of indigenous peoples to their land territories and resources. There are numerous examples about the interrelated nature of the rights affirmed.
With regard to its legal status, again I would point to and am happy to offer as additional resources to the committee members the views of the former Special Rapporteur on the Rights of Indigenous Peoples who sought to clarify the legal status of the UN declaration. To be responsive to your specific question, it can be seen as generally accepted within international and state practice that the declaration does reflect customary international law.
On the basis of custom, practice and behaviour by states, even when not compelled or forced by indigenous peoples, for moral and legal reasons, states have chosen to enter into land claims agreements. If you think about even the histories of negotiation of the land claims agreements with Inuit throughout the Arctic, this was done well before the UN declaration. The Government of Canada saw that these people have rights to lands, territories and resources, and we have to engage in a dialogue with them and affirm those rights.
Senator McPhedran: I'm now going to move on to the second part, having heard clearly from you that we are dealing with international customary law when looking at the declaration. Both of you referenced the intersection between international and domestic law, and my question relates directly to gender equality between indigenous men and women in Canada. It relates to our Indian Act, but perhaps more relevant our Constitution.
Referencing article 43 of the declaration, which speaks to minimum standards, and linking that to article 44, which is the statement of gender equality in the declaration, I'd like to connect or intersect with section 35 of our Constitution. I'd like to ask you, in this intersection, whether in land claim rulings, the statement by Chief Justice McLachlin, accepted by the court that the Crown has a fiduciary duty in these matters — whether you think that in terms of gender equality, the Indian Act, the Constitution and the declaration — whether that intersection extends to a level of fiduciary duty, which is the highest possible standard that can be applied to the government in the situation of gender equality between indigenous men and women.
Mr. Joffe: Just to clarify, there isn't a fiduciary duty on everything in terms of the Crown and indigenous people, but fiduciary duty, like you say, suggests a much higher standard. It has been applied to lands and territories. It came up in the Tsilhqot'in Nation case, and they said that the fiduciary duty there would mean that future generations — that was a title case — based on the fiduciary duty, could not be deprived of the use of the land. In that case, it means, say, with climate change, that if governments are not meeting their duty, and if they will not be able to have access to the lands through flooding, fire, storms or whatever, then they've affected future generations. That becomes very relevant. If you go back to the declaration — the basic rights to lands, territories and resources — that human right is going to be directly impacted.
It's good to bring all these aspects together. In each case, there may be a somewhat different fact pattern that could affect the legal impact, but there is no question that with fiduciary duty, it can only strengthen land rights. But one just has to look at the facts in each case, because the court has said at times, "No, it didn't go that far where there is a fiduciary duty for everything.''
Ms. Dorough: I'll try to be quick in my response. It's important you have underscored minimum standards of the declaration and that this is the floor, not the ceiling, and that there is nothing that prevents any government, including the Government of Canada, to build upon these minimum standards. It is essential as you move forward that nothing should ever go below these minimum standards.
The point Paul made about the relationship with the UN declaration to other international human rights instruments is also critical to your specific question about a fiduciary duty, gender equality and the interpretation of the rights affirmed here in the domestic context. Not being intimately familiar with how the courts have outlined fiduciary duty and obligation in Canada specifically, I would submit that by virtue of not only how rights have been affirmed at the international level in international human rights legal instruments as well as domestically in Canada, there is an obligation in the context of indigenous people and indigenous women specifically that there would be an obligation to align actions, behaviour and domestic law and policy with international human rights norms, of which equality is one of the central norms, hence the racial discrimination convention.
Equality is an essential right. If you put that into the specific context of indigenous women and the responsibilities and obligations of the Government of Canada to adhere to, promote and protect such an essential human right, it would definitely be in the neighbourhood of a fiduciary obligation and responsibility by virtue of both international law and domestic law.
Your question points to something worthy of intensive study, in my opinion, because I'm sure that we could illuminate a range of other compelling arguments that would be in favour of the point of your question about the responsibilities of the government to indigenous women in Canada specifically.
Senator Watt: It's nice to see both of you here. You are very welcome to the Senate. I thank you for the explanations you have provided and the questions that have been put forward to you have been very helpful to this committee.
Both of you have certainly been involved from the very beginning in the development of rights. When we first decided to challenge the government at the time, there was no such thing as the question of whether rights existed in Canada, nor in the international community. The question of rights started being talked about at the time when Alaska decided to concentrate on land claims matters related to the development in that state.
Following that, I believe that Nunavik was the second one tackling the question of rights, and at the time it still did not exist. It was very new to the authorities and government that we were dealing with, the concept of the rights. I remember at the time that it was hard to talk about the question of rights. It was understood in some ways by the authorities, and it was a dirty word. We had to do what we could to elevate that through legal avenues by way of a court challenge where we took on Hydro-Québec, which implicated hydro energy corporations, development corporations, including the government of Quebec.
At that time, the Government of Canada had a specific responsibility to defend and represent the Inuit people. I guess at that time, with advice from our legal people and also the interests of the Inuit in challenging the government at that time, they didn't really trust the Government of Canada to speak for the Inuit. I remember that very clearly.
After all of this, now we are in the midst of implementation still, after the 40 years, and implementation of those modern treaties is not going well, as you know. You are probably following what's happening as well as I am with regard to the implementation.
What did the Government of Canada achieve versus what did the Inuit people achieve? When it comes down to the question of clarity, I do believe the clarity is very much on the side of the government, but the clarity is not necessarily on the side of the indigenous people. Why is that? It probably has a lot to do with the fact that the government of the day still has not improved their laws and policies to take a good look at whether they are corresponding with the treaty that was signed 40 years ago.
Many years have passed. A lot of our young people are struggling through the implementation and the fact that at times they are being told, as young people, that they know little about the question of rights, domestic rights and international rights. Nevertheless, they are part of the implementation. It's their responsibility to implement the modern treaty, which they did not have anything to do with during the negotiation times and they were not even around. I am talking about the young people aged 25 to 35. Those young people today seem to have a lot of energy and a lot of good ideas, much more than we ever had when we were their age. That's very positive, and hopefully they will carry us forward and rectify some of those problems that we, the elderly group today, helped to create. It is still our responsibility to do what we can, if we are in the right place, to try and make some improvement to the mess that we have created.
On those areas, I do have a question to both of you. I'll start off on the international declaration. It seems that international declarations could be used to improve what has been done, to advance certain things that were not being dealt with at the time, looking at it as a new era since the constitutional protections, section 35, came about only after the modern treaty was put together, the first modern treaty. We didn't have that constitution at the time. If we had that constitution, would we have ended up with the same kind of character as we did with a modern treaty? I don't think so. We would have a lot more leverage in terms of getting where we want to go, and we didn't at that time.
Paul Joffe and Dalee Sambo Dorough have been very much instrumental in the land claims treaties and also at the international level. I have worked with both of them off and on for over 40 years. The questions that I would like to put to you are the following: In the declaration itself, how is that going to be done? Is that going to be put into the form of legislation so we would have a specific legislative base on issues that we have to deal with?
When the Government of Canada will help us — people that are in the midst of implementations — to develop their department in such a way that they would recognize the tools needed, mechanisms are needed on the government side. At times, when we have a strong issue to deal with, the mechanics are not there. We have no representation within the Department of Indian Affairs. They only represent the interests of the government. There is no representation within the justice system. They again only represent the interests of Canada.
I believe that it's the time now that we need to start focusing on specific issues if we are serious about moving ahead to implement what has been put together over the last 40 years. Could you provide some clarity on that area? This is what we need. We need clarity.
Ms. Dorough: I'll try to be brief, recognizing the time.
I think what you've highlighted is important because your remarks suggest and are responsive to the progressive development of international law, the progressive development of law, and the fact that nothing is frozen in time and that the land claims agreements, section 35 of the constitution and all other matters can be informed and also constantly informed by a human rights framework.
I also think it's important to recognize, and this relates to the previous line of questioning, the real need for the equal application of the rule of law, especially in the circumstance of indigenous peoples and redefining the relationship between newcomers and indigenous peoples in Canada.
As I said in my introductory remarks, I think that a comprehensive legislative framework based upon the UN Declaration on the Rights of Indigenous Peoples is one of the most constructive ways forward. By comprehensive, I mean that it has to look at the full array of the interrelated articles of the UN declaration. The legislation has to be put in place and it has to be lasting and durable but, it also, again, has to be comprehensive because of interrelated, indivisible nature of the rights affirmed in the UN Declaration.
Unfortunately, good examples of how other governments across the globe have effectively done this are few and far between. I can think of only two circumstances. Adoption of an indigenous rights act in the Philippines has taken place, but it wasn't, in my view, comprehensive enough in terms of really integrating the provisions of the UN Declaration into specific elements of legislation upon which the government would have to act. By that I mean to act in collaboration with indigenous peoples and in dialogue with indigenous peoples.
I think the apparatus, so to speak, really does have to take some careful thought. Ultimately, it will pivot on the comprehensive and full integration of the UN declaration into every department and every aspect of the Government of Canada. As I said at the outset, virtually every issue that your committee, the Senate and government and Parliament deal with affects and impacts indigenous peoples. A comprehensive legislative framework based on the UN Declaration is probably one of the best ways forward.
The final comment that I'll make on that point is that there should be some oversight mechanism as well — some mechanism that allows for regular review of how departments are implementing the declaration. There have to be some checks and balances. Also, to further my comments about access to justice, when there has been a misapplication or a miscarriage of justice and implementation of the declaration, there must be some mechanism for indigenous peoples to go back and raise alarm or raise concern.
I think such a mechanism can be informative to other departments and agencies and possibly, ultimately, result in some best practices not only for other departments and agencies in Canada, but that indigenous peoples in other countries can point to as an example and a model for the implementation of the UN declaration.
Mr. Joffe: Senator Watt is dead right, unfortunately, when he mentions that rights didn't exist. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, which relates to the Naskapi, the first one related to the Crees and Inuit, had to be negotiated without governments recognizing that any rights existed. No rights existed.The only time they referred to rights was when they got the agreement they wanted and they put in a surrender and extinguishment clause. Then they referred to rights, because they wanted to indicate what they were destroying.
When you look at it in that light, and when one considers that all treaties, whether they're modern treaties, numbered treaties or pre-Confederation treaties, are living, dynamic and sacred agreements, they're supposed to have contemporary meaning as we move through the ages.
With that, you go to what Senator Watt mentioned and also what Dalee mentioned. You go to a new, contemporary framework if you're dealing in a contemporary situation. There's a reason why those in the numbered treaties tend to be impoverished in ways even that people in the modern treaties aren't impoverished. That should be revisited. It can't be that they wanted to give it all up and remain poor for generation after generation.
The treaty provision in the declaration is article 37, and there are some preambular paragraphs that also relate to treaties. They describe in the preamble that treaties are a way or means for harmonious and cooperative relations, but that means being fair to the indigenous treaty parties, and that often hasn't taken place.
Can the UN Declaration be used to improve? Of course it can, because we're talking about human rights. As Dalee and I both tried to mention, you don't just consider the declaration in a vacuum; you consider other international and constitutional law.
Certainly, section 35 should be changed so that it's seen as human rights not only for the Canadian Charter but also for indigenous peoples.
How can that be done? Certainly, if one adopts what the declaration says the minimum standard should be — consultation and co-operation — then the discussions should be on that basis. How do we co-operate? How do we deal with contemporary issues? How do we really deal with them in a fair manner? Put aside the fact that they were told they didn't have any rights until they extinguished them. That should be put away. It doesn't make any sense. Who doesn't have rights but is forced to extinguish the rights they don't have?
What Dalee mentioned about a legislative framework for the declaration is critical. You have, for instance, Bill C- 262, which is Romeo Saganash's bill on the UN Declaration. Why is it useful? It's useful. No one ever says, "Implement the whole declaration in one fell swoop, in one law, tomorrow.'' No one is saying that. What people are saying is we need a legislative framework. Romeo's bill provides for repudiation of colonialism. That's basic. Repudiation of doctrines of discovery: those are considered racist in international law. The International Convention on the Elimination of All Forms of Racial Discrimination condemns colonialism. Canada ratified that about 45 years ago. That's law. Why isn't it being used? It's not just the declaration.
If you could create a framework where one puts aside these elements and adopts a human rights framework, then we have a framework for ongoing discussion. We can say that now they're going to have a separate law in indigenous languages. That could be part of it, but that alone isn't enough. The languages are connected to the land, to the resources, the environment and poverty, et cetera. It has to be looked at more holistically.
It doesn't have to be Romeo's bill if the current government is prepared to go higher. I've heard Romeo say, if you go higher, that's fine. If you want to go lower, no, it's not fine. We're dealing with issues that are so serious. If we do not put in law that we are repudiating colonialism, who is going to believe we're actually going to do it?
The other problem was raised by Jody Wilson-Raybould, as the Minister of Justice and Attorney General. During the emergency debate on April 12 of this year, she asked how we could ensure that the declaration will last beyond the term of one government. How do we ensure that? If there's no law, everything could come to an end. If there is a framework, as we've mentioned, along with a lot of other people, then you have more chance for continuity. It's set out. There's a process for reconciliation through working together to look at the laws.
Right now, even if we start tomorrow meeting, how many laws or policies and practices are we going to change before possibly a new government? There has to be a more long-term view and it must give some security and permanence. If you don't have that legislative framework, it could be gone the next election.
If we do all of that, then one can look. If the idea is cooperation and consultation as a minimum standard, if people look at consent, and it's the same to a certain degree for Inuit and the James Bay Cree, who have signed countless agreements that are based on consent, it's doable.
Why are the Cree flourishing in comparison to some others? Why are the Crees in Attawapiskat different from the Crees on the Quebec side? One has some framework. One has a chance to enter into these agreements, and others should have it also. This is probably the key part about going to the future. With no legislative framework, we're all in big trouble. There's no ongoing dialogue that has a foundation.
Senator Watt: In regard to the question of the legislative base, on one hand we have to be very careful to ensure that we are part of that process and that legislation respects the spirit and intent of that declaration. That is one thing that I wanted to say.The other aspect, the potential negative aspect, is the possibility that the instrument could also be used to dilute certain things. We have to make sure and we have to be there when the framework is being established.
Ms. Dorough: I think that's a crucial point. The declaration, when reading through it, underscores partnership and underscores consultation, cooperation and collaboration. That is an absolutely crucial point in terms of collaboration with indigenous peoples concerned. The dialogue through partnership and harmonious relationships is an essential element.
The final thing that I wanted to say is that I greatly appreciate this opportunity for a dialogue. You can trust that any way that I can assist the members of this committee, as well as the Senate overall, in relation to the UN declaration and related questions as well as additional materials and resources for you to review and study as you go forward, please let me know. I'm happy to offer whatever services I can in the future because this is such an important endeavour not only for this committee but I think for all of Canada. No doubt, my people, my relations, the Inuit of the Canadian Arctic, could directly benefit in the same way that indigenous peoples across Canada and across the globe can benefit.
Again, quyanaq.
Mr. Joffe: I too want to express our deep appreciation. It's been a very substantive dialogue. We do want to help in any way. The way we work is always to hopefully continue the relationship. Any questions, no matter how difficult or challenging, we're happy to, if we can, assist in some way.
I think it's worth remembering, as we've tried to say and I think you have as well, that if you're dealing with indigenous women's rights, indigenous women have to be at the table. If you're dealing with children's rights, they too need a voice. If you're dealing with persons with disabilities, they too need their voice.
If we all work together, I'm totally optimistic we can make concrete progress. But if it's done in a way where, "Well, no legislative framework. Well, not really colonialism although we agree with you, it's not such a good thing,'' then we won't get anywhere.
I thank you again. If we can help, please ask. Thanks.
The Chair: On behalf of all the members of the committee, I would like to thank you for your testimony this morning and for your fulsome answers to the questions from the senators and also for your offer to help us should we require your assistance in the future.
(The committee adjourned.)