Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 16 - Evidence - February 8, 2017
OTTAWA, Wednesday, February 8, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 6:46 p.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: Welcome to the Standing Senate Committee on Aboriginal Peoples. Welcome to all our viewers who are watching via the web or here in the room.
For the sake of reconciliation, I would like to acknowledge that we are literally sitting on the traditional lands of the Algonquin peoples of Canada.
Today we have a distinguished panel that I will introduce in a few moments. First we will go around the room and have senators introduce themselves, starting on my right.
Senator Tannas: Scott Tannas from Alberta.
Senator Raine: Nancy Greene Raine from British Columbia.
Senator Oh: Victor Oh from Ontario.
Senator Beyak: Lynn Beyak from Ontario.
Senator Tobias Enverga: Tobias Enverga from Ontario.
Senator Boniface: Gwen Boniface, Ontario.
Senator Pate: Kim Pate, Ontario.
[Translation]
Senator Mégie: Senator Marie-Françoise Mégie from Quebec.
[English]
Senator Sinclair: Murray Sinclair, Peguis First Nation, Manitoba.
Senator Christmas: Daniel Christmas, Membertou First Nation, Nova Scotia.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas, New Brunswick.
Senator Watt: Charlie Watt, Nunavik.
The Chair: Thank you, senators.
This evening, we are in the second week of our new study. In December last year our committee agreed to study issues relating to the development of a new relationship between Canada and First Nations, Inuit and Metis peoples. We are now conducting the first phase of our study, which is examining the history of the relationship between indigenous peoples and the Crown.
We have with us tonight four distinguished individuals who are appearing as witnesses via the magic of video conference: Dr. John Borrows, FRSC, Canada Research Chair in Indigenous Law, University of Victoria; James Tully, Distinguished Professor of Political Science, Law, Indigenous Governance and Philosophy, also from the University of Victoria; Professor Michael Asch, Department of Anthropology, University of Victoria; and a newly minted PhD, Dr. Joshua Nichols, Faculty of Law, University of Victoria.
Distinguished panel, you may proceed. At the conclusion of your individual presentations, we will open the floor to senators who will pose a number of questions to you, and you will be able to respond.
James Tully, Distinguished Professor of Political Science, Law, Indigenous Governance and Philosophy, University of Victoria, as an individual: I'll start because the invitation was initially to me, and then we had this opportunity for the four of us to get together.
It's a great honour to speak to you this evening. We, too, are sitting on the unceded territory of the Coast Salish people here at the University of Victoria, and we acknowledge that.
What I'll do is just say a couple of words to begin with and then we can move right into question and answers, or perhaps the other members would like to say a few things after I do.
I understood from the invitation that you sent me that you might want to start by looking at what the Royal Commission on Aboriginal Peoples thought about a new relationship in the 1990s. I thought I would start there, because that's a very important document and it's perhaps worth setting it out for you.
Hundreds of indigenous people came to the royal commission, told us the relationship they would like to have with Canada. It was discussed there for four years. It was drafted up in various ways and sent back and forth across the country. Nevertheless, over a four-year period there came to be a fairly substantial consensus on what would be a good vision for a renewed relationship between indigenous people and Canada.
In the invitation you asked me about the relationship and the principles around that relationship. The answer to that at the royal commission was given in a chapter of Volume 1 of the final report. The chapter was called "The Principles of a Renewed Relationship.'' That relationship has four main principles to it, which I'll just mention briefly, and then it has one way of realizing those four principles through establishing a new relationship.
The first principle they hit on was the principle of mutual recognition. That's to say that indigenous peoples and the Canadian people would enter into negotiations, seeing each other as equal, as self-governing and as co-existing on this land through time. That's to say indigenous peoples and Canadian people have the right of self-determination under international law, and that means that indigenous peoples are self-governing, have their own legal systems, and may have their own socio-economic systems and distinctive relationships to the living Earth.
All of that is under this first principle, which was just called, in brevity, the principle of mutual recognition of the partners and of the new relationship.
The second principle is called mutual respect. What they meant by that was that indigenous people coming into the relationship, and Canadian people entering into it, would do so under their own traditions of negotiation. That's to say in their own cultural ways, perhaps under their own legal systems, starting that way, drawing on their own traditions to try and present views on living together in a good way. The mutual respect was this respect of cultural diversity amongst indigenous people and between indigenous people and the diversity of Canadian people.
The third principle, and one of the most important, was the principle of sharing. This was the idea that indigenous peoples think Canadians can share not only this land in a good way, but they can also share powers, governance and knowledge and varieties of mutual aid in all areas of life.
The principle of sharing was based on the idea that they want a relationship that recognizes both independence and interdependence; that is to say, independent, self-governing people, but nevertheless entering into negotiations in order to see what they can share — co-management agreements, environmental agreements, sharing certain governing powers, and so on, over time. The sharing principle is, "Okay, we're independent, but we're also just as importantly interdependent federal peoples.''
The fourth principle is mutual responsibility. The thought here was that it's not just indigenous governments and provincial and federal governments that have responsibilities, but all indigenous people and all settlers in all their relations with each other ought to try to enact these four principles in their relationships, whether it's in school or in the marketplace or just meeting in a public space; we ought to learn to live together in better ways that embody these principles.
The vehicle that would actualize or realize these four principles would be relationships of negotiation between indigenous people and Canadians, whether it's governments, businesses, individuals, school boards or welfare agencies and so on. They would enter into negotiations in accord with these four principles, and over time these relationships would become relationships of reconciliation.
They meant "reconciliation'' in two senses. In the first sense, the way people negotiate as equals — sharing and having responsibilities — embodies relationships, reconciliation, but the thought is that in negotiating this way, you bring about relationships of reconciliation in the larger society, which is to say relationships of independence and interdependence.
Under the principle of sharing and of mutual responsibilities, these relationships and principles that relate to humans also apply to the living Earth. There's a whole exercise here of reconciling our relationship to the living Earth, as we are reworking the relationships with each other. These are relationship responsibilities over seven generations, not just of our human relatives but also all our other relations, with non-human relationships.
When this was put forward to the royal commission and discussed, the commission was told that this isn't a new idea; it's a renewed idea that goes back to the early modern treaty relationships that were embodied in the Two Row Wampum treaties starting in the 17th century, what is called the Kaswentha model of two rows of independent people that nevertheless build bonds of interdependence over time and share these responsibilities to live on the Earth in co- sustaining ways. It's a very complex idea that we would develop relations using these four principles that would help to build the health and well-being of individuals, of communities and of the ecosystems on which we all depend.
This was the commission and the people at the commission, their way of renewing the very old relationship of the early modern peace and friendship treaties.
This vision was seen to be embodied in the Royal Proclamation of 1763 and in the Treaty of Niagara the year later in 1764. It was enacted in several of the 19th century treaties, and this nation-to-nation relationship of independence and interdependence, of sharing and of mutual responsibilities, was seen to be embodied.
My colleague Michael Asch can speak to that. He's an authority on Canadian treaties. But it's important to remember that this vision is in section 25 of the Charter of Rights and Freedoms where the Royal Proclamation of 1763 is recognized and affirmed.
There are a number of ways of thinking about this relationship. Another way in which it's thought about with all the principles I've just enunciated is that it's a gift-reciprocity relationship. For a lot of indigenous people — Inuit, Metis and First Nations — they were most comfortable thinking of it as a gift-reciprocity relationship. That's what was going on in the early peace and friendship treaties: You shared things, but you shared things because people recognized your independence in other areas. This gift-reciprocity relationship is what sustained both indigenous communities and their relationship with the settler communities.
The second point about this gift-reciprocity relationship is that it has become more important around environmental issues since the mid-1990s. We learned through Earth teachings of the way the more-than-human world sustains itself through symbiotic relationships that are really relationships of gift reciprocity. The treaty relationship is modelled upon that mutual support or symbiotic relationship in the natural world.
There has, of course, been an enormous amount of work done on that in the life sciences, working with experts in traditional ecological knowledge, since the 1990s. It's just to say that this relationship is derived from a relationship indigenous people and people in ethno-botany see in the way ecosystems sustain themselves.
The idea here is that if we begin to enact negotiations that embody these principles, we will be agents that become the change we want to bring about in the larger society.
That is the general picture of the royal commission.
The single biggest obstacle, as everyone was told at the royal commission, was that under a misinterpretation of section 91.24 of the Canadian Constitution of 1867, the Crown sees itself as sovereign over the land and over indigenous people. This means that all the negotiations we have had under that misinterpretation of section 91.24 get off on the wrong foot. They're not reconciling with indigenous peoples as equals but seeing them in some way or another that indigenous people are subordinate or under Canadian law already. These negotiations, as nation-to- nation relations, are supposed work out which legal orders work in which areas, and in which areas that can be shared.
The argument at the time, which has been developed further by people on this panel, is how do we change what's called the broad view of section 91.24 to a view of section 91.24 more in accord with the Royal Proclamation of 1763, Two Row Wampum Treaty model and the vision that the royal commission put forward?
We see examples of that being used today in the Haida protocol agreement in 2011 on Haida Gwaii and so on.
Those are the things I want to start with. Thank you very much.
The Chair: Thank you.
Is another person on your panel intending to speak as well?
John Borrows, FRSC, Canada Research Chair in Indigenous Law, University of Victoria, as an Individual: I'll say a few words.
[The witness spoke in his Native language.]
I'm from the Cape Croker Indian reserve on the shores of Georgian Bay in Ontario.
I want to re-emphasize what Jim is saying here: Relationships of mutual recognition, respect, sharing and responsibilities are the heart of our relationships.
And these are rooted in places. My family comes from the area of where Bruce County and Grey County are now, and my great-great-great-uncle was Tecumseh. When Tecumseh was interacting with the first settlers who were coming into Ontario, he set up a relationship of mutual recognition where, through alliance, there was work done to be able to militarily defend the area that we knew as our homelands.
This eventually led to his death, but the work that he started was continued on by the family. My third great- grandfather, Kegedonce, which was his brother-in-law, is the person that I bear the name of. He carried on those life ways of pursuing alliance through mutual recognition, inviting people into the territory, and then with mutual respect, learning the best of their agricultural ways and other things that were being introduced to us, at the same time as we were trying to introduce people to our life ways in the territory.
My great-great-grandfather Peter Kegedonce Jones signed a treaty dealing with 1.5 million acres of land in Ontario on the shores of Georgian Bay — Goderich to Arthur, in the middle of the province, to Collingwood in the north. Those lines in the north along the Bruce Peninsula, he put his doodem on a treaty that invited people to live in accordance with the Anishinaabe laws. We invited people to understand that the best relationships in that territory come from measuring and understanding life in accordance with Ojibwe law. These were the standards of judgment, the measurements, the criteria, the authority, the precedent and the ways of decision-making that, when we entered into treaty, we hoped others would take up such that the treaty was an invitation to live in accordance with those Earth ways that Jim talked about.
This great-great-grandfather participated in the rebellion of Upper Canada, recognizing the importance of trying to work through issues of equality, and he worried about the overreaching power of a central administration.
And then my great-grandfather Charles Kegedonce Jones was a chief for 50 years under the Indian Act and under the treaties where he tried to live that idea of mutual responsibilities. He was a runner, and as a runner before he became chief, he could find his way from Wiarton and Owen Sound to Toronto in about four days. He'd find his way to Ottawa in about six days. He could run down to the Windsor area in about eight days. In other words, this infrastructure that was in our back yard as Ojibwe people provided ways for to us connect with one another on that mutual responsibility network.
So in the life of Tecumseh was mutual recognition. In the life of Kegedonce was mutual respect. In the life of Peter, who signed the treaty, was the idea of sharing. In the life of Charles was the notion of mutual responsibility.
We can find all of these things rooted in territories that the Anishinaabe and other indigenous peoples occupied throughout what's now Canada. Through taking our standards of judgment, laws, measurements, guide posts, standards and criteria, we felt that we could create a relationship that would partake of these qualities. This is what is happening in my generation. These voices that have lived in our experience are coming to the surface again.
I really want to echo what Jim said and reinforce that vision of the royal commission, because it's a vision that goes back much further and is rooted in the Earth teachings of the places from which indigenous peoples come throughout this territory.
Meegwetch.
The Chair: I think we will open the floor to questions, unless you wish to have another speaker.
Michael Asch, Professor, Department of Anthropology, University of Victoria, as an individual: I will just speak for a couple of minutes. I don't want to take time away from asking questions.
My work on treaties is from the time of Confederation, so it's much later than that. The important thing this research shows is that at the time of Confederation, there were a number of leaders in Canada who still held the same kinds of ideas that John and Jim are talking about from the period in the 18th century.
In particular, I have found in looking at the transcriptions of negotiations of Treaties 4 and 6 between Commissioner and Lieutenant-Governor Morris and the First Nations that were negotiating with him that there was a lot of overlap in the way they were speaking about the kind of relationship that ought to develop through these treaties.
I'll just mention two principles that seem to have come out of it that I think would be worth thinking about as we try to revisit, revitalize these relationships.
The first is the word "kindness.'' This comes up over and over again in Treaty 4 and Treaty 6, where the objective on each side is to treat the other party with kindness. This doesn't mean giving people whatever they want or being nice. It means thinking of the other person as you act and trying to work in relationship to that other person.
Commissioner Morris says this on a number of occasions in Treaty 4, and the indigenous leadership says it back to him. In fact, they initiate it and talk about how they treated settlers with kindness when they came to this place.
Commissioner Morris also says that his objective is to share the land, not take it over. He says, "We want to be here. You have invited in other peoples. We want to join you, not take over.''
Treaty 6 has I think one of the most important clauses that we should keep in mind today in terms of how we proceed. The agreement is called the famine provision, and it said that if some misfortune should occur to our partners — and our partners had said that to us, too, but we put it in this treaty and no other treaty. I'm going to tell you how Commissioner Morris he explained it, not necessarily as it is written in the text: "We will not let you die like dogs.'' We will do what we can to support you. We will have your backs. Of course that's my paraphrasing, but the first phrase was his. I think that if we kept that in mind and looked at our record and tried to get ourselves more oriented to that kind of understanding, we could begin to initiate the kind of relationship that I think we're talking about here.
The Chair: Dr. Nichols?
Joshua Nichols, Faculty of Law, University of Victoria, as an individual: I think we can open the floor to questions. I think that would be best.
The Chair: Thank you very much, gentlemen.
Senator Enverga: Thank you for your presentations, professors. I can see that you have done a lot of research and recounted the history of our Aboriginal peoples. I'm pretty sure that the research you did is part of the curriculum in your university. Is all the research that you have done widespread over Canada?
Mr. Borrows: Yes. We have in the royal commission, of course, a great deal of research in those five volumes. This research is cited in the Truth and Reconciliation Commission, and it's picked up and taught from coast to coast to coast in different universities, and even in secondary schools. Some of our writings are at that level.
Senator Enverga: The reason I'm asking this is that I still believe that we need to give our students, especially our indigenous students, access to the kind of education that you're giving, especially with regard to post-secondary education. Do you think it's one of the rights of indigenous students to have more access to your studies? Is it part of the responsibility that you think the government should be giving to our students?
Mr. Borrows: I do think that's a good thing that the government could work on facilitating, and it's something that we're working on here at the university. I know my colleagues across the country are doing the same thing.
I teach a course on indigenous peoples in the law school. It's an introductory survey course with 24 lectures. They're now publicly available on YouTube so that people can watch these lectures at their own convenience and learn about the history of Canada from a legal perspective.
I know that through the writings and curricula and other work being done across the country, the federal government steps in and helps facilitate that role. There is a lot that can be done as people get the information they need.
Mr. Nichols: I would like to step in briefly. I feel like many universities in Canada are also taking the TRC's calls to action very seriously. In particular, I'm starting a position at Dalhousie that was just created this summer as a Canada Research Chair in Indigenous Governance and Leadership. There's a big appetite in many universities in Canada to further this work and to take the TRC's calls to action seriously and expand the offering, so there are movements in other schools as well.
Senator Enverga: According to the Truth and Reconciliation Commission — correct me if I'm wrong, Senator Sinclair — the commission calls for action on indigenous students' access to post-secondary education, including for the government to provide adequate funding to end the backlog of First Nations students seeking a post-secondary education. Don't you think we should be doing this right away so we can continue the reconciliation for everyone?
Mr. Borrows: I would certainly agree.
Another recommendation is Recommendation 50, which talks about the creation of an indigenous law learning institute. We've been working from coast to coast to coast to try to court the federal government's support for an indigenous learning lodge that would see this kind of work done that links together places like Dalhousie, McGill, U of T, Osgoode, Western, Windsor and of course the schools here in the West.
In that learning lodge, we would teach — and do teach in our school — indigenous peoples own laws so that people understand that the laws of Canada aren't just the civil law and the common law, but it's possible to learn and apply indigenous peoples' own legal standards. That's a part of the call to the federal government, the fiftieth call to action from the Truth and Reconciliation Commission.
Mr. Tully: I will mention another example outside of the law schools in Canada.
Here at the University of Victoria, Taiaiake Alfred, a Mohawk scholar from Kahnawake, and I set up the Indigenous Governance graduate program. It was the first indigenous governance program in Canada. We set it up in 1996, and it brings in predominantly indigenous students, but also non-indigenous students come and do an MA or PhD in indigenous studies and then go back to their community. Since Senator Sinclair is here, the first graduate of that program was Dr. Paulette Regan, who was a senior researcher with the TRC.
This kind of knowledge is being spread. That model of teaching in the political science, indigenous governance, indigenous studies and other streams in universities has grown enormously. There is lots of work still to do, but it's grown since the royal commission, I would say.
Senator Enverga: If I could make a last short comment, I would like to thank the students from the Canadian Federation of Students who are here today watching all of us because they want to highlight the needs of indigenous students.
Senator Lovelace Nicholas: I'm glad to hear everyone's comments. As you know, some of our ancestors did die like dogs.
To go on, as you know, in our peace and friendship treaties, the government has a fiduciary responsibility to all Aboriginal peoples. Now we have to start over because it wasn't recognized, and I just can't accept that.
Thanks to my colleague Senator Sinclair, now all this is starting. Is this why we have to renegotiate?
Mr. Borrows: I think the words used in this committee about the idea of renewal are an important touchstone. Other kinds of words are "resurgence'' and "revitalization.'' The idea is that the principles and the treaties are there, but we need to polish the covenant chain again, or we need to be able to make bright what has grown dim because of the histories that have been tragic around indigenous peoples and settler relationships.
I also applaud the work of Senator Sinclair and others, because it's bringing to light again those older relationships that build upon ideas of mutual recognition, respect, sharing and responsibility that are so key to our futures.
What is so exciting is the recognition that some of these answers lie in the past, not that we would just bring the past forward without taking account of the contemporary circumstances, but to understand that within our own history, as Professor Asch talks about, there are those brighter moments. If we can work to revitalize those brighter moments, I think that's the job of all Canadians.
Senator Lovelace Nicholas: One of you mentioned that the people want to share resources. But as you know, there's racism, and one people will want more and will not want to share with the other people. I'm just saying that the treaties are there and we should do something about it.
Mr. Borrows: That's right.
Part of the law of sharing, when my great-great-grandfather invited people onto our territories, was to share in accordance with Ojibwa legal principles, which would be the principles of kindness, having one another's back, love, humility, courage, respect and honesty. Those are the principles embedded within Anishinaabe law, which were enacted within the treaty setting. These are the ideas we should move to in governing how resources are used in our territory.
If we would judge resource use in accordance with the indigenous laws of the peoples of those territories, that would go some distance to pushing back that racism and exploitation, which doesn't have a sustainable root to it. Not that Ojibwe or indigenous laws are perfect; there's much that we're still trying to learn in the world. But within these legal traditions, our ideas talk about a more sustainable relationship with the Earth, and the treaties were meant to have that peace and friendship root, which would see that relationship grow down that path.
Mr. Tully: On the settler side, there are many settler students now who are learning this in our universities and our high schools, and they're forming alliances with indigenous communities and students. They're often protesting like in Idle No More or Standing Rock. They're standing up against racism, and they're fighting against vicious forms of economic development and environmental destruction.
There's a whole other world now of alliances in the younger generation amongst settlers and indigenous students working in the universities but also working on the land, sharing their knowledge and addressing these problems of racism and environmental restoration.
So I think there's momentum behind your committee. One of the things your committee could learn from these different movements that are happening all over Canada — actually, they're not all talking to each other, if you see what I mean. If they had a way to speak through your committee or set up some way in which there's better coordination — there are so many things happening here on the West Coast, as you can imagine. In political science we have a program that brings together students in political science, law and indigenous governance. They work together and have practicums in local communities. These local communities, the indigenous community and then the local settler community are working together on good relations regarding the land, good forms of social and economic development, sustainability issues, issues around thinking through seven generations ahead and so on. I think there's a lot going on in Canada right now, but it's not very well coordinated.
Senator Lovelace Nicholas: Do you think with everything that will be happening with protests and whatnot that Bill C-51 will affect Aboriginal people?
Mr. Borrows: I think it is going to affect Aboriginal people. The question becomes how the community itself organizes itself. Do they have space to be able to bring forward ideas of resolving their disputes in a fashion that's peaceful and orderly? For instance, Tsleil-Waututh people have done environmental assessments in accordance with their own laws, or the Nisga'a people on the north coast have done environmental assessments around LNG in accordance with Nisga'a law. Look at other parts of the country where there are problems around children and families. They Secwepemc people are using some of their own laws to try to deal with the challenges they face.
It's not that they're using those laws exclusively. They want to use the best of Canadian law, by and large, as well as the best of their own laws, but when those laws are in conversation with one another, you find that there are pathways to help deal with the challenges that are going to be faced by Aboriginal peoples as Bill C-51 and other issues roll out potential protests and differences of opinion.
In other words, we need indigenous law because we have differences of opinion. We don't just use indigenous law because we all agree, but law is something that's there when we don't see eye to eye. There are processes and principles within law such that when you deliberate and persuade one another together, it taps the best of our democratic impulses, even within Canadian society more generally. It enables you to have a conversation that is participatory because you've got the structures and frameworks that sometimes take you beyond the blockade or beyond the protest to be able to constructively engage in some of these challenges.
Senator Lovelace Nicholas: Thank you very much for your answers.
The Chair: Senator Lovelace Nicholas made a point when you quoted from Treaty 6: "We will not let you die like dogs.'' Yet that principle articulated by Morris probably wasn't the same vision that Macdonald had, so we have these two very different views.
We have wonderful aspirational goals. You outlined the four principles, which I think are terrific, yet we also had at the same time a government that had taken authority over indigenous peoples and ostensibly said they believe in these four principles, but they act in a different way from Macdonald's time — perhaps not so much now; certainly not the sort of draconian measures.
The question is: How do we take those four principles and apply them in modern times to actually put that vision, those principles, into practice? Could we take a specific example like peaceful protests or resource extraction? Would that be a good place to start actually implementing those principles to solve a particularly critical problem? I hope that makes sense.
Mr. Asch: I hear what you're saying very clearly, and it is close to but not identical to my own understanding of what happened at that time. At the time of Confederation, there was a very strong difference of opinion between people like Morris and also the third Governor General, Lord Dufferin, and the government about the relationship that was to develop after Confederation as a healing relationship with indigenous peoples.
For about six or seven years after the negotiation of Treaty No. 4, things seemed to be tense but uncertain as to which way they were going to go. It is after Morris is removed or leaves the position as Governor General and Dufferin moves to India — I believe that was his next assignment — that the Macdonald faction really took control.
I can really see from that point, which is the beginning of the 1880s, as opposed to 1867, a remarkable shift to dominance of that very point of view: We don't care about these people and don't want to build a relationship with them.
That other position becomes submerged in the discourse for the longest time, although you have people who come up all the time, like the doctors who argued that residential schools were just the equivalent to killing children and all of that.
It seems to really emerge in the legal discourse at the time of Calder, so 1969, 1973. There's a long period where that other position is dominant.
What I am hoping passionately is that we can change the way in which Canadian history is taught from the settler side so that we see that these contestations, these differences, are there in our history and not write it as though it was just a simple story. I think it gives settler kids some courage that what they're doing is not entirely inventing a new person, that they have to reject everything from their own past, but they're going back to some of the best of who we are, too.
Mr. Borrows: In the legal framework, there's a similar doctrine when you have divided potential approaches to treaties. The court says that the honour of the Crown always should be preserved, which would say that you avoid appearances of sharp dealing and give preferences to those interpretations which are those better ones that you found from Dufferin and Morris.
The court felt that you give treaties a large, liberal and generous interpretation in favour of the Indians — canons of treaty construction. You resolve ambiguities in a way that the Indians would understand them. You don't give treaties of technical construction, but you look at them in their natural spirit and intent.
When you're dealing with these conflicting perspectives, we have a choice as a society: Do we choose the path of honour, or do we choose the path that accredits those points of view which have turned out to lead to people dying like dogs? I think the answer is clear: We want to choose the path of honour and not that path that's been very dark. And we're held to that by the court's doctrines.
Senator Sinclair: I want to begin by apologizing to you, witnesses, for the fact that I have to leave early. In about 20 or 25 minutes, I have to go to another event. If it looks like I'm walking out on you, I'm not. I'm taking care of some other business.
I want to begin by thanking you for your presentations. As usual, you're all very stellar and clear thinking in your presentations. I appreciate that deeply. I referenced most of you in the course of the work that I've done, so I thank you for your work.
I want to begin with an observation, and that will lead to a question.
One of the greatest mistakes that I've made over the course of my career and since the work of the Truth and Reconciliation Commission, and even since coming here, has been to assume that people accept what I say about this. There is, in fact, a significant population of indigenous people, young indigenous people in particular, who want to know more about it, who want to utilize it in order to find their identity, to find a path that is more consistent with their concept of themselves.
A significant quadrant of the population — and we identified them during the work of the TRC — believe that indigenous peoples should just forget about the past, should get over it, move forward and move on, and look at what we can do to become better Canadians together and more like each other.
That's also shared by some indigenous people, incidentally. I can remember a survivor speaking to us during one of the TRC hearings who said, in admonishing other survivors and perhaps us as commissioners, "We have to stop walking into our future backwards.'' By that she meant we have to stop looking only at what went on in the past. We have to start looking at what we want to happen in the future.
All of can you respond to this, but I'll begin with you, Professor Borrows, since I've observed your work most keenly for the last period of time. I wonder if you might talk about how important this is to Canada, this work that you're doing. How important is this in particular to young indigenous people? Are they really asking this of you, or is this something you guys are making up in order to justify your positions at the university?
Mr. Borrows: I do appreciate the question, and I think it's right where you started. We have to acknowledge in ourselves our weaknesses and our mistakes. That ethos or that take on the way we do our work as academics or the way we engage with one another as citizens is so key. What it demonstrates is that the work is a self-examination, as well as then looking outwards and trying to understand what could be done as we work across communities.
One of the mistakes that I've often made is feeling that there is a wider sense of understanding than there is. I guess I'm sharing your point. Where that needs to be addressed is there's an importance in the things that organize us institutionally. I look at what you're doing here as a committee, or I think of the work of the Truth and Reconciliation Commission or the courts, and in some ways that work doesn't trickle down. It doesn't percolate into the everyday corners of life like we hope it would.
How can this make a difference to Canada? The difference is made when, yes, the institutions take it up, but then it happens in the corner stores, in the workplaces, in the schoolyards and in the "everydayness'' of what Canada is about to bring these issues forward.
How do you do that? You do that by thinking about these principles that were there by people like Tecumseh, and Kegedonce and my great-great-great grandfather, which is to form friendships, form unions and form ways of dealing with things on a local basis to be able to advance these issues.
Jim talked earlier about some of the things happening up here on the coast. People are involved in economic development together in a sustainable way. They're doing work in trying to facilitate development of a local concern or issue that is a part of their lives.
In other words, the work of renewal and of revitalization has to join individuals to institutions, and those individuals can only be joined in that broader sphere when they see the relevance of what it is we're talking about.
Here's the relevance: We are in this together. Michael's book On Being Here to Stay is the idea that we can't live in this country without one another. The Anishinaabe people, when we greet one another, say nindinawemaaganidook: Hello, all my relations.
This is a work of relevance for Canada because it makes Canadians settled if we do this properly. If the treaties are lived by and the law is identified and properly applied, then the people who are living here from other parts of the world can feel welcome here in accordance with principles of peace, friendship, respect and participation.
The alternative is the doctrine of discovery, coercion, adverse possession and force. Canada presents itself and we have our aspirations to be people that are participatory — to be on that ground of peace, order, friendship, deliberation and persuasion, not on the ground of coercion.
So it makes a difference to who we are as Canadians, who we think we are. I think we are better than the doctrine of discovery, coercion, adversity and possession. If we get in line with these principles we're talking about, we are Canadians because we recognize one another, respect one another, share with one another and have responsibilities for one another.
This is a positive vision for Canada, which is broad-minded, generous and isn't cramped and narrow like we see in some places in the world. This kind of vision that is hospitable is an Anishinaabe vision, but I also think it can be a Canadian vision, too.
Mr. Tully: You experience that in education in Canada, too. I teach a lot of settler students in political science and philosophy departments and have been doing it for many years now. Sure, there's lots of argumentation and disagreement, but what John was saying is that the principles we mentioned from the royal commission resonate with principles settler Canadians grow up with and understand themselves to be living in accordance with; that is what it is to be a Canadian. Then we learn this dark story about our history, and it upsets them. It's difficult in the classroom and difficult for them to go through these courses that we teach these days. Often the reaction is, as you say, not as much support for these principles initially as one might hope. I went through the same period when I was teaching at McGill in the 1980s and 1990s, and I thought I would change everybody's mind in Montreal in a couple of years.
It's a long educational battle of thinking things through, thinking about living with diverse others and, what John said, how we pride ourselves on that. But we have a long, long way to go.
I find that for students who come through these classes and talk it through with fellow students on the weekends, they go back to their communities and think about it. They think, "Okay, which treaty have I grown up on? I didn't even know about. And now what can I do?'' Often linking it to environmental issues is a way of building a relationship outside of the university.
I think on the northwest coast of British Columbia there has been a tremendous sea change since I went to school and university here many years ago to the way students think about these issues today.
So, yes, it's a hard, long battle. You often feel that you're not making much headway, but then you look around and you see what these generations now of students are doing and it's pretty heartening.
I must say that your calls to action just reinforce that momentum. They are being picked up in educational systems, in our universities across the country, and at the centre you set up in the University of Winnipeg to carry this forward.
There are days of discouragement, but all of these different initiatives, not just in the law but in the education system, in the economic sphere — our little city of Victoria call 2017 the year of reconciliation.
So we can get lots of examples of things. As I said earlier, one of the big problems is that we often don't see as Canadians all these different initiatives and what's happening with them.
Mr. Nichols: I very much agree with your sentiment. There's a portion of the population that sees what is going on and see this work as being primarily about the past, a set of grievances, and they see reconciliation as some sort of compensation. That's a complete misconception. Further work needs to be done to get these people to realize how the political and legal systems they exist within have been built and the principles they have operated on. This will help them to see that this issue is not about their past but how these systems are being practised today.
This kind of work is to meant to reset how we conceive of state sovereignty now and how we are going to go forward as a country. We can't continue to just go forward without looking backward. We have to see how our conceptions of state sovereignty continue to inform our actions and how we work on the land.
For instance, section 91.24 has been continually interpreted by our courts since the late 19th century as granting the federal government unilateral power over Indians and their lands. That is one interpretation of that constitutional provision. That's one version of the future, and that doesn't have to be the only version of the future.
Part of the work is to show the people who see it's about past grievances that it's actually about a shared future where that unilateral principle is going to get us into problems not just in how we relate to one another but in how we continue to live on this planet.
Mr. Asch: I will add one thing. I've taught for quite a few years, and there has been a real big change from the 1980s, when I taught in Alberta, to now. I don't get as many people saying, "I'm not interested anymore.'' At least at the university here, they say they are interested.
I do hear people saying, "I don't want to look back; I want to look forward.'' In addition to the other reasons, I've felt that one of the reasons is that the way in which we present our past makes it very hard for people who have understood that past to feel confident about how to act now. I don't mean overconfident; I mean confident in the sense that they can position themselves in the conversation.
A lot of things that are going on are helping them do that, but I think part of the education that we need to do is to help them feel that they can act today responsibly. That's what I hope some of our courses are trying to do, too.
Senator Raine: Thank you. This is very interesting, good and helpful.
I keep wrestling with two things. This year is the one hundred and fiftieth anniversary of Canada's sesquicentennial, which I understand is not a great thing for indigenous people to be celebrating, because it really is the time when their way of living and their systems were interrupted. I find myself feeling very bad when we talk about welcoming newcomers from all over the world to this wonderful country of Canada, yet somehow forgetting that we were welcomed to someone else's country and then took over. So there is a lot of reconciliation that has to be done.
The challenge for me is how do we go about doing this? It can't just be in the academic world and in our K to 12 school system. We have to get out there to the average Canadian through every kind of educational resource we have, through the media, to talk about our history and why the values of indigenous culture are so important to the foundation of what makes us Canadian. I would like your comment on that.
What really bothers me is here we have a national broadcaster, the CBC, which is very well financed and has our airwaves to transmit their resources, yet we don't see anything about what we need to be learning. Not everyone watches CBC. The APTN, on the other hand, I think does excellent work, yet they don't have the power to get out there to the average person.
Could you comment on how we can better use media of every source to educate all Canadians?
Mr. Borrows: I taught for a number of years in the United States. I've taught federal Indian law and U.S. constitutional law working in indigenous communities, and what I find interesting in certain parts of the United States is that the indigenous peoples have economic power. For instance, if you're on the Upper Peninsula of Michigan around the Sault Ste. Marie area and west, the Sioux tribe, as they're called, is the power in that region.
Likewise, if you go to certain parts of Minnesota, Montana, Oklahoma and Arizona, people first and foremost look to the indigenous population as being the people they get jobs from and as the people they can look to because of the way they are organizing themselves economically.
Even in a big city like Phoenix, with millions of people, what they call tribes there are important forces. When there's economic development within these communities, what happens is they start to control the messages. They have the ability to lobby Congress. They get on the airwaves and into the schools. They create the curriculum. They find themselves working in public relations functions because they have the economic self-determination to be able to accomplish those goals. Then they can do things on Indian Country Today and other media networks that are in the United States. You often hear on NPR and PBS aspects of what the indigenous peoples are doing.
In other words, what I think we need to do in our own way, in the Canadian context, is take a page out of that experience. We will find greater absorption of indigenous messages when indigenous peoples are more economically powerful in this land. That requires controlling the resources that are historically theirs and that are close by. When they control those resources, it's not a win-lose thing. When the Sioux in the Upper Peninsula of Michigan control the resources, all their neighbours also benefit from that.
In Canadian terms, indigenous economies are bungee economics. Like a bungee jumper, you jump, hang there for a second and then go back up. What happens with economies in indigenous communities is that a dollar will come into the community from the federal government, but it will spring back out again and be spent in the surrounding communities.
What we need is economic development opportunities such that when that dollar comes into the community and passes through two, three and four different hands within that community, growth takes place. That money is passing from hand to hand within the First Nation, Metis or Inuit communities. Then there's not just a dollar coming out of that community and being spent in Kamloops, Kelowna, Sudbury or wherever it happens to be, but more money comes out of the reserves and is spent in the surrounding communities.
From that flows what you are talking about: media, education and all sorts of other possibilities for getting your point of view on the agenda. It really can be a win-win situation when you look at the wise practices of some of these communities.
We have that in Canada as well. I know in some isolated places such as the West Bank First Nation, and we see that around Sechelt and around the Chippawas of Rama in Ontario. There are places where that occurs, but all those dots need to be expanded and connected throughout the lands. There's an economic piece to this renewal, which definitely addresses your point about spreading the messages more fully.
Senator Raine: I agree that economic independence for indigenous communities is probably the number one target. All of the things to get there, though, include breaking down the racism that exists and education and all of these other things. Cultural pride is so necessary, as well as the languages and the culture. It's hard to know, when you're trying to find a path forward, how to actually make all of that work. How do you create synergy? Where does it start?
Mr. Borrows: It starts in many different places. It can't just have one single emanation. We're just one group of people, and you'll meet with other groups of people.
One of the things that Josh said is really important around section 91.24. One of the reasons that tribes in the United States have been successful is that the federal government has been pre-empting the application of state law on reservation spaces. In other words, reservations in the United States are protected by federal law to be able to exercise their own laws within their sphere. When people have greater responsibility for their day-to-day decisions, knowing they have to live with the consequences of their mistakes as well as their victories, they're more careful with the types of decisions they make.
What we've had in Canada is section 88 of the Indian Act, where all provincial laws of general application are applicable to Indians. That delegation of responsibility by the federal government to the provinces is the opposite of what's happening in the United States. Economic development happens in the United States because the federal government has exercised its paramountcy or its pre-emption powers to allow for an enclave or for a sphere to grow that can be harmonized so as to be beneficial to the surrounding provinces, but there needs to be a place where their own decisions can be made.
My experience — I'm now a 25-year law professor, 10 of those in the United States — is the single most important thing that has happened to tribes in the United States is that federal power has pre-empted state power. Federal power is paramount to state power on reserves such that reserves can then exercise their sovereignty and their inherent authority, and so much grows.
That's a place that we haven't explored. The Penner report tried to do that in the 1980s after the Constitution was patriated. The Royal Commission on Aboriginal Peoples talks about that pre-emption of provincial authority on reserves as an economic development driver and as a responsibility driver, but we really have not gotten there. That's a difficult thing for the federal government to do, to think about pre-empting provincial authority where there is a sphere of Aboriginal power.
But if we walk that path, I believe one of the strongest things this committee can do is to strengthen responsibility being held locally, and then those decisions, often economic decisions, will be beneficial not only to the people within that community but to the people that surround that community, too.
Senator Raine: If you look at how the jurisdictions are set up in Canada, where the provincial governments have jurisdiction over resources, minerals and forestry, that would go to the federal government, to be given directly back to the First Nation and they would have control?
Mr. Borrows: The federal government would create a shell or protection around the First Nations, Metis or Inuit exercise of that authority. So by the federal government acting in its paramountcy role, that would enable the First Nations' jurisdiction to be exercised and come forward.
This idea of that occurring is not only that the provinces get to control the resource decisions off of the reserve. The province actually controls most of the decisions on the reserve, because most of the laws that apply to reserves are so- called provincial laws of general application. The problem is when the province acts by passing those laws, it can't single out Indians. If it was to single out Indians in passing laws that would apply on reserve, it would be ultra vires, beyond the authority of the province to do it. So the province passes laws that apply to Indians in a way that they have to close their eyes to thinking about Indians, because to think about Indians would be to make the jurisdiction invalid.
At the same time, the federal government is not exercising that power because they're passing it to the provinces to say, "You can enact laws of general application.'' So the federal government is averting their eyes through section 88 and the provincial government is averting their eyes because they can't single out Indians. That leaves Indians in their space being governed by other peoples where there's actually no specific guidance or attention usually being given to the ways their lives unfold.
The idea of paramountcy would be to say the federal government has responsibility under section 91.24 for Indians and lands reserved for Indians. We can exercise paramountcy in that sphere, which is to say that we can recognize there's an inherent right there. Then section 35 of the Constitution, which recognizes Aboriginal and treaty rights, could come in and fill that jurisdiction with the authority needed for First Nations, Metis and Inuit people to be able to enact their laws to do the kind of work we're talking about, which is to create a mutuality: recognition, respect, sharing and responsibility.
Senator Raine: It sounds good in theory, but in reality, when you're living in a province — and I come from British Columbia where, as you know, there are very few treaties. It would be mind-boggling as to how to do that.
Having said that, we had a bill in the Senate a few years ago, Bill S-212, on opt-in self-government for First Nations, which would have encompassed many of these opportunities for taking charge of their own affairs. There are perhaps different ways to go about doing it, but it's not going to be easy.
What I was thinking about when I first asked the question about education and educating the greater population is that we need to create an environment where everybody wants to make these changes, and to do that requires an awful lot of education.
Mr. Borrows: Yes. When that education is backed by economic power and political jurisdiction, so much more can be done.
It is a big job and it does sound impractical. But when we look across the border to the south of us, we see that this has grown since the time of Nixon. It might be under threat in the current political climate in which tribes find themselves in the United States, but for about 40 years Congress has always acted on the side of tribes. The President has always acted on the side of tribes to be able to pre-empt this state authority, and it has led to over $25 billion a year of growth in economic development.
Many of those tribes are very similar to the tribes that are on our side of the border. They're not very big. They have lots of challenges in human capacity. They're sometimes isolated from markets. But with the support of Congress and the President or, in our case, with the support of the federal government, if there was that willingness to take that step of recognizing that the provinces are not taking care of these laws and economies on the reserve, that might crack some space in line with the type of bill that you were talking about just a few moments ago in terms of the recognition act.
Senator Raine: Thank you very much. That is very interesting.
The Chair: We have two more questioners on the list.
Senator Enverga: Professor, you mentioned that the way to find out about our study, to answer the question about a new relationship between Canada and the First Nations, was mutual recognition, mutual respect and mutual responsibility. We've been dealing with First Nations and other indigenous groups, and we learned the fact that one size does not fit all. There are a lot of differences even between First Nations and other groups.
We want to try to fast-track or expedite this study that we're doing so we will be able to serve our indigenous groups faster. From your end, can you suggest any way to maybe consolidate some of this mutual recognition, mutual respect and mutual responsibility? Is there a way we can do this with a shortcut so that instead of taking another 5 to 10 years doing this study we can do it a lot easier? Can you let us know if you have an idea how to make this happen without going to one First Nation or indigenous group at a time? Can you let us know if there's a way to expedite the whole process?
Mr. Tully: I think the four principles set out by the royal commission were widely shared. The commission was told those principles by indigenous people — Inuit, Metis and First Nations — over a four-year period. They are often interpreted differently, but it's a shared understanding of how you live in a good way with your neighbours. Each year the Assembly of First Nations continues to put forward that aspect of the final report and to say they endorse these principles. When I think of all the negotiations we've been through here in B.C. since the early 1990s, we hear the same principles.
Even in the most recent agreement — I'm not talking about the treaty process but outside of it — we see these principles being invoked again. My sense of it is that these are still widely shared principles among indigenous people in Canada.
On the settler side, the other part of the royal commission was to say, "What does respect, sharing, recognition and so on mean in the Western traditions?'' There, too, we spent a lot of time saying it means the following thing in our Western traditions of political thought or moral philosophy or forms of negotiation.
So I think there's a lot of goodwill around these principles already from both sides. I don't see a big problem in people coming to accept them.
Senator Enverga: Well, I hope that's true.
Mr. Borrows: The other part of this is that the platform of the current government was to recognize the United Nations Declaration on the Rights of Indigenous Peoples, and the Truth and Reconciliation Commission also put forward that recommendation, which can be acted upon. In other words, there is something in that document that outlines the different areas of responsibility and possibility for carrying out your work. The declaration is not without its critics, but there's pretty widespread support for its principles.
So to the extent that you couple the Truth and Reconciliation Commission recommendations along with the royal commission recommendations, along with the principles of the Declaration on the Rights of Indigenous Peoples, that's not to short-circuit the work, but it's to say there's already a framework. That framework through RCAP, through UNDRIP and through the TRC has many specific suggestions that have been talked about far and wide, not only across the country for decades but across the world for decades as well.
Senator Enverga: Do you have any studies or something you've thought about that we can use to get mutual recognition, all these issues that will encompass the different organizations out there? Could you please share with us so we will be able to use it in the future?
Mr. Borrows: Yes, we could do that. Josh Nichols and I are working with CIGI, the Centre for International Governance Innovation, and we're working on a project regarding the United Nations Declaration on the Rights of Indigenous Peoples to also bring forward that very agenda, so we can bring that to you as well when those papers are finished.
Senator Enverga: Thank you.
Mr. Borrows: We'd be happy to do that.
The Chair: Thank you very much, gentlemen.
Are there any examples in the world of this type of new or renewed relationship taking those four principles into account? Are there any other indigenous peoples in the world who have accomplished the kind of goals that you've set out?
Mr. Borrows: I was mentioning some of the people in the United States working in that way. You can see through 40 pieces of legislation that Congress has passed that they've highlighted self-determination as the centrepiece of working in all sorts of spheres. There are acts dealing with language and education and child welfare and intellectual property, cultural property, economic development. It goes down the list. So there are the examples that flow from that.
If you look to New Zealand, you'll see a very strong set of principles around what they call biculturalism, where they try to take the principles of the Treaty of Waitangi and the principles of the best of the common law and put them together in a mutually recognizable, respectful, responsible way. I've visited there and spent lots of time there. There are challenges, but there's also a lot to be learned in a positive way.
Mr. Tully: Here on the West Coast, the Haida protocol agreement with the B.C. government in 2011 was fashioned around these principles.
The Chair: When it comes to the Waitangi agreement in New Zealand, where they were essentially operationalizing the agreement into implementing those four principles, did that take a long time? Was that done over a period of a couple of years or decades?
Mr. Borrows: These things always take a long time, but sometimes there is a tipping point where a lot seems to happen at once because enough background information, policy and goodwill accumulate to suddenly shift the landscape. Again they're not utopia, but they have in a short time accomplished a lot because of all the background work that was done through the generations.
We're in a similar position. We've done a lot of work through the generations. This I think is the time. We are at a tipping point. We have the Truth and Reconciliation Commission, the backdrop of RCAP, UNDRIP. There's so much in this moment that could put us in that place by making quick work when it's actually been generational.
Senator Christmas: Thank you, gentlemen, for sharing your work. Obviously, you've made a significant contribution in all your research and teaching. I also appreciated you reminding us of the four principles that RCAP was based on, and I certainly appreciate those.
Professor Asch, you boiled down those four principles into two, if I heard you correctly: kindness and sharing. For some reason, when I was listening to those principles, I wondered if elders were teaching these principles. It dawned on me that the principles we're trying to articulate and transmit to the larger Canadian population are very old, ancient principles that our peoples have lived by for who knows how many centuries.
What comes to my mind is the four quadrants of the medicine wheel. What people are more familiar with are the mental and physical. But the other two quadrants sometimes make non-Aboriginal people a little uncomfortable, so I'm going to mention that at the beginning.
The spiritual and emotional quadrants bring that holistic view to a lot of indigenous people. When I think of those four principles, or the two that you summarized them with, I get this voice in my head of elders speaking spiritual words or spiritual terms that give strength to the other quadrants and that give strength to the emotional and the mental and the physical.
The point is it's very important to teach these. Knowledge is very important. Awareness of these things is very important. But I think what's missing is the spiritual and the emotional side of this; to be inspired to be kind, to inspire to be sharing. It takes not only knowledge; it also takes the spiritual side. I'm looking for an elder to teach me these things again so I can be strengthened and edified and go out and do this all over again.
As you teach in universities, are you able to connect your students to the spiritual side of these values? Because these values and principles are not a program and are not dollars. They're obviously very ancient teachings that are very powerful and can inspire. I know I'm taking this in a direction that's probably uncomfortable for some, but it seems to me that these principles are brought to life by spiritual things. I would appreciate your comment on that.
Mr. Asch: Let me apologize. We are having a blizzard here. It is not normal for Victoria to have blizzards, but we are having one. My wife has graciously decided to come out and pick me up in the middle of the blizzard, but I have agreed I will be outside when she comes and I will have to leave very soon.
There's no way that I could directly teach what you're talking about. It's not in my capacity to teach it directly. What I try to do in my teaching is to embody it to the extent that I can in my conversations with students. I ask them to seek that information from other places, too.
The main point I'm trying to get across, which is maybe an opening to what you're saying, is to take look at the word "sharing.'' I ask them to look at it really seriously. The naive way in which we mentally imagine sharing is dividing. It's amazing how sharing becomes dividing.
Then I ask: If you start looking at it from the point of view of kindness to the other person, not only the "person'' but to the "other,'' isn't sharing something quite different? Doesn't it come out with a different kind of emotional sense to it? That's the best that I can do.
Then there are other people here who are much better at moving it in that direction and I try to move people there, too. That's the best that I can do, because those are my limitations.
Senator Christmas: Thank you, professor.
Mr. Tully: I agree with you exactly about the importance of the spiritual dimension of life and that the emotional motivation to act in accord with these principles is missing so far in the discussion. It's a huge discussion, maybe for another time when there isn't a blizzard in Victoria.
One way we teach it at university is through ethics and what are called "practices of the self.'' That's becoming attuned to a better mode of living together and what kind of comportment or conduct with others moves you in a good way. These are the kinds of issues that we can bring these principles around and say, "How do we embody them in our ethos and in our mode of conduct?''
This is a very common discussion in universities around these principles, sometimes called virtue ethics. In indigenous courses, there are things called the seven grandmother or grandfather teachings, which are not just principles but modes of being in the world with other humans in the more-than-human world. It's modes of conducting yourself.
You can talk about that in classrooms. You can take your class outside and walk together in a forest on Vancouver Island and say, "How do we relate to each other here? How do we relate to these ecosystems?'' These are principles of sharing, seeing these principles in the natural world and seeing them erupt or become generated through students cooperating together, whether they're indigenous or a settler. They come alive, if you see what I mean.
The biggest role of your committee is to somehow be exemplary in that way — not just enunciating a set of principles from on high but finding ways in the media or encouraging the government or calls to action at universities to actually exemplify these principles in their courses, in the way the university relates to the community it's embedded in, where it's getting its food from. We can do all these sorts of things here and now to be "the change,'' if you see that sort of Gandhian sense, where we embody these and people can see that spirit in the way we act together, speak together and agree and disagree together. It brings the spirit of these principles right into the classroom.
Mr. Borrows: We were fortunate when we were at Dalhousie to be amongst Mi'kmaq people. They talked about a principle of Netukulimk, which was significant to us in thinking about the work that we're engaged. For me, that word communicated a set of relationships that was respectful and responsible and was connected to people and the land.
I take students from five universities to my home reserve in Ontario. They get a chance to walk with elders and to be on the land, in the forest and on the waters so that there's an opportunity for them to get to experience some of those principles for themselves — not for me to impart to them but for them to get that opportunity to be exposed to people who are living by that set of ideas.
For 20 years now, at the University of Victoria, we've been taking a third of our law students out on the Saanich Peninsula to be with the communities for four days. They camp, go on ocean-going canoes and spend time with elders and at longhouses. They are told stories, and they sing and sit around fires. They talk intellectually, but they also talk another language that makes an impact on students and on myself.
As Jim said, to the extent that the committee itself can embody those principles as you are hearing that voice in your head, that is what I'm talking about. It is what my ancestors invited the people of Ontario into when they said, "If you want a treaty, here are the principles that we live by: sharing, kindness, responsibility, respect.'' There are Anishinaabe terms for them, just as there are Mi'kmaq terms for them. It would be wonderful to see the committee identify those terms.
Of course, people have to live spiritualty in their own way, but if they see that those are part of a treaty relationship and part of how our country was formed in many ways, they might start to say, "Yes, those are also our principles for judgment.''
Yes, we believe in peace, order and good government, life, liberty, security, equality and association. Those are all great values, but so are love, kindness, respect, humility, honest, wisdom, courage and truth. They're just as valuable to us as those Charter values that we find in 1982. These are older charter values, but they are charter values of the people of the land from the generations.
Senator Christmas: I was impressed at the 24 lectures that you share free online for anyone to learn from. Obviously you live by those principles and believe those principles. I certainly hear your challenge to this committee that we have to find a way to embrace them as well.
Thank you, gentlemen; we really appreciate that.
Senator Pate: Thank you very much, all of you.
As I've been listening to you speak and to the questions, one of the things that I was thinking about — and I'd be interested in your response as well, Madam Chair — is how we could actually embody this nation-to-nation in the Senate as a way of operating, given that we're looking at new ways of operating. It might be a really good way to demonstrate what we're talking about and what we want to do.
My seatmate and I were just saying that it would be great to have some discussion about that and perhaps for you to lead that discussion and for our witnesses to assist in having a look at how we might talk about that, at a time when we're talking about renewal in the Senate.
The Chair: It's not directly related to the topic tonight but a very interesting idea nonetheless.
Do our panel members want to make any comments?
Mr. Borrows: There are examples of doing that in other houses. The Passamaquoddy people have a formal role in the Maine state legislature. In that legislative gathering there are ways that they are recognized.
In the New Zealand context, I was there this time last year, and there were things that were happening in the formal body of the Parliament itself that was picking up aspects of indigenous recognition and procedure.
When I was in Nunavut with the legislative assembly there, obviously the Inuit people used these guiding principles to convene some of their sessions.
Of course, universities and others across the land are doing that in their convocations and governance sessions as well. I think it's a good idea.
The Chair: Thank you, gentlemen. I know that you're sitting there very patiently while there's a blizzard blowing outside behind that big black screen we can see.
On behalf of the committee, I want to thank you. We are very honoured to have you heard from you tonight.
I believe Senator Lovelace Nicholas has another question. My apologies. Please go ahead.
Senator Lovelace Nicholas: Since you are scholars, do you think it's a cop-out for the federal government to give jurisdiction to provincial governments, since we're under provincial jurisdiction?
Mr. Borrows: In many ways, the contribution I was trying to make was that very one, which is that the jurisdiction in First Nations, Metis and Inuit communities should be recognized. Section 88 of the Indian Act, where the federal government gives the provinces jurisdiction over Indian lands, is not healthy. It's very destructive because it doesn't allow people to control their own affairs. It's not democratic. In Canada, we expect people to be able to have a voice in how they deal with their day-to-day affairs. Section 88 of the Indian Act gives it all to the provinces as laws of general application. Like I said, the provinces can't even think about Indians when they pass laws because to do so would be ultra vires, beyond their jurisdiction. So I do think that's a big challenge.
I would reiterate my understanding from what I've learned through 25 years: Jurisdictionally, legally, that's the biggest thing that could be done, namely, to create the space where First Nations, Metis and Inuit people fill in that jurisdiction and use paramountcy to keep those provincial laws out.
Senator Lovelace Nicholas: In other words, in this 150-year celebration, we have nothing to be thankful for. Thank you.
The Chair: Thank you, Senator Lovelace Nicholas. You always have a wonderful way of bringing everything down to earth.
The blizzard outside is telling us something else. In my mind, the blizzard means that we are starting afresh. We have a beautiful white slate outside for you to get into.
Once again, I thank you gentlemen for bringing to the committee your wisdom, wise words and wonderful insights that we will carry forward with a report.
(The committee adjourned.)