Proceedings of the Standing Senate Committee on
Issue 44 - Evidence - October 17, 2018
OTTAWA, Wednesday, October 17, 2018
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to study on the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
[Editor’s Note: Some evidence was presented through an Inuktitut interpreter.]
The Chair: Good evening. Tansi. 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.
For the sake of reconciliation, I would like to acknowledge that we are meeting on the traditional, unceded lands of the Algonquin Peoples.
My name is Lillian Dyck from Saskatchewan, and I have the privilege of chairing the Standing Senate Committee on Aboriginal Peoples.
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 forward at the principles of this new relationship.
I will now ask my fellow senators to introduce themselves, starting on my left with our senator from New Brunswick.
Senator Lovelace Nicholas: Sandra Lovelace Nicholas, New Brunswick.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator Pate: Kim Pate, Ontario.
Senator McCallum: Mary Jane McCallum, Manitoba.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
The Chair: We will now turn our attention to our study. We are really lucky and fortunate to have with us this evening from the Canadian Roots Exchange, Max FineDay, Executive Director. Mr. FineDay, you have the floor, and after your presentation there will be questions from the senators. Please proceed.
Max FineDay, Executive Director, Canadian Roots Exchange: [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin.]
I am ready to take any questions. I am just kidding.
Friends and relatives, what I said in my language of Nêhiyawewin is that my name is Max FineDay. I come from the Sweetgrass First Nation. That’s in Treaty 6 territory, and of course it is world renowned for having all the really cute Cree boys. I thanked our kind and loving Creator for giving us the opportunity to sit here today and talk with one another, to have important and needed conversations for this country, particularly for the young people of this country. I said it was a good day to do these things.
I run a non-profit organization called Canadian Roots Exchange, as you heard. It has been around for about 10 years now or as long as reconciliation has been sexy, I like to say. In the last 10 years we’ve convened conversation, something that wasn’t done for the previous 151 years or even longer than Canada has been a country.
We convene conversations through our national gatherings which bring together young people from every region of this country to discuss what reconciliation means for our generation, what can happen and what decolonization looks like in each of our particular communities, recognizing that reconciliation in Nunavut looks very different from reconciliation in Saskatchewan, Ontario or in the East. We do exchanges into Indigenous communities to show that Indigenous people are just that, people. Sometimes that is a radical concept for Canadians of my parents’ generation or my grandparents’ generation to understand or to grasp.
We also do leadership training in 15 different urban centres across the country, preparing both Indigenous and non-Indigenous leaders to work together to build a local context for reconciliation and to build opportunity for young people to have space about what are the impacts of residential schools and what are the impacts of colonization for young people, what are the impacts of these things are today in 2018.
Most recently, we have just launched this work to focus now on rural reconciliation. Too often I’ve found in the years I’ve been doing this work that we are in rooms not unlike this one. Maybe it’s a university campus. Maybe it’s the other halls of Parliament. Maybe it is in an urban conference centre where we gather together to talk about what reconciliation means. Don’t get me wrong. That is good work. That is important work. Where I come from in Saskatchewan, not too far away from where a young man was shot and killed, we forget to have these conversations of what reconciliation means or what reconciliation even is.
I’ll still go into First Nations communities in the parts of the country where you reside and have Indigenous people not know what reconciliation is. They have not heard what the nation-to-nation relationship is or means. They are unaware of the good work of this committee or other reconciliation committees right across the country. This is work that I’ve committed Canadian Roots Exchange to be doing so that we don’t have to suffer like we suffered in the last year with the loss of a young man who had so much to give, who gave so much already to his community and to Canada.
I come here not with all the answers. I think that’s important to say. I come here with great humility and with healthy amounts of optimism and skepticism at the same time. I come here with the voices of many young people with whom I work in my mind, telling me about what they see for their communities for the future, what they hope for, for our country in the next 151 years, and where we can get to if we work together.
I want to preface these comments with some realities. The fact that anything I say about disparity between Indigenous and non-Indigenous people is exponential oftentimes for women. It is exponential for the LGBTQ community, the two-spirit community, the trans community, and for young people as well. These are constituencies within our regions that have it much worse off and don’t often get that recognition. I want any of the comments that I make to sit with you. Those realities should be front and centre in these conversations. When we think about all the hard work of reconciliation, we have to think about who has been the most marginalized by colonization and who continues to be left out by colonization.
We’re living in a very particular moment in time, a very exciting moment in time, a very peculiar moment in time. Reconciliation is all the rage, it seems. That’s not a bad thing. As I go across the country speaking with high school students, speaking with unions and speaking with other government officials, I often come up against the same question time and time again: What do I really do? Maybe you’ve heard it too. It is such an easy question. I often have the urge to say: Give the land back and give us all your money. That could be a very easy reconciliation process, but we know that’s not going to happen. Reconciliation is going to be a complicated process.
I come to you, this committee, ready to take questions about the state of reconciliation for young people and the state of reconciliation from what I’ve seen across the country, recognizing that oftentimes in these conversations what holds us back is our Canadianness. It’s our inability to have uncomfortable conversations that some might deem impolite.
I’ve sat in many different rooms and had people ask me what it is like to be an Indigenous person, to tell them about the best thing in my community, and other sorts of underhand pitches that I can knock right out of the park. Let me tell you I do it beautifully, but that doesn’t really help. We know when Canadians are polled, particularly Canadians of my parents’ generation, they’re suspicious of me. They’re suspicious of my community. They’re suspicious of my peers. They’re suspicious of Indigenous people if they are down on their luck. You see them in Ottawa, as I do, and you see them across the country, as I do. They’re suspicious even if they’re a senator.
How do we combat that? The cynic in me says that we wait for young people to take the mantle of power. We wait until it’s my generation who are the senators around this table, it’s my generation who is the Prime Minister, and it’s my generation who is on Bay Street or running companies in downtown Saskatoon because they will know better. Unfortunately, that isn’t going to work to alleviate the pain, the pressure and the sense of urgency that I feel, and I think you feel as well, to get this right. Unfortunately, it’s going to be confronting your peers or your generation. It’s going to be confronting the parents of my friends, the uncles and the aunties that they have Thanksgiving dinner with, to seek the truth.
We’ve heard time and time again from residential school survivors who have gifted us reconciliation. They have said that what happened should never happen again, but we must first seek the truth. That’s the tough part, let me tell you, because we’re Canadians. We have been taught that Canada is the good guy, that Canada is sort of the nerdy kid in class, the one who always does the right thing, and who is known on the international stage for protecting human rights. We know now that’s not the case, particularly for Indigenous peoples and communities. It’s that truth that we must reckon with before we can get to reconciliation.
I come here with honesty. I have said that young people are angry, particularly Indigenous youth. You are familiar with the statistics just as well as I am around issues of drugs and alcohol, young people ending their lives themselves, and issues of violence in homes and overcrowded housing. We have heard this time and again in this committee room. We’ve heard this time and again on “The National.” We’ve heard this time and time again.
I have a very secret plan. I am willing to tell this committee and the people who are watching that a revolution needs to occur in this country. I would find it revolutionary if my generation was the last to have to come to this committee talking about disparity, talking about inequality, and talking about how we need to catch up as a country. That would be an act of revolution. Senators, I am going to be completely honest with you when I come here and say I don’t like complaining. I don’t like having to sit here and talk about how young people aren’t doing so well in this country.
Think of the generative ideas that we could be discussing otherwise if we tackled this inequality. Think of the generative ideas that we could be discussing for our urban community, for those who still live in our traditional territories. Yet, we’re not there. There is no greater wish I have than that my children don’t have to come back here and talk about inequality but can talk about ideas, about passion and about how to build this country further. That’s what we’re resting on as a country. That’s where this work rests.
I often say to Canadians with whom I speak that we are at a crossroads. On one side there is the familiar path of rage. We’ve seen that rage before at Oka Crisis, Ipperwash, Burnt Church, Idle No More, and all those sorts of things. Even today in your regions young people are angry at what they see. That other side of the path is reconciliation, that path not yet charted. The idea is that we can fix these inequalities, these injustices and this abusive relationship we’ve been in with Canada for the last 151 years, but to get there we have to change some things. I know I am not the first witness you’ve had here talking about what a new nation-to-nation relationship looks like, how we get there, and what we have to do. I don’t have to. There have been countless reports and many different people with a lot more degrees than I have who have laid paths, royal commissions, the TRC and their calls to action, reports, et cetera, showing how we can get there. What we need is action, solidarity and the will to do this.
Canada is such a beautiful country. It’s rich not only in our resources but also in our people. Canadians want to be the country we were taught we were in school. We want to be the good guy. We want to do the right thing. What it’s going to take is action from you, action from them, and even action from my friend’s racist uncle at Thanksgiving dinner. It’s going to take all of us for reconciliation to be achieved. I am very excited at the idea of having a conversation with you about what this can look like and how we get there, to give you a report on how our young people are doing and what they see. [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin.]
Friends and relatives, I will end my opening remarks with the hope that I haven’t offended anyone by what I am saying. I come here with a good mind and a good heart, as I have been raised to do. Before I came here, I offered kistemaw or tobacco to the Creator and to our relations so that my words would be guided in a good way.
With that I say [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin]. I would be more than happy to take your questions.
The Chair: Thank you, Mr. FineDay. The floor is now open to questions from senators.
Senator Patterson: Thank you for addressing the ambitious topic that we’ve decided to study. You really tackled the issue that we’re grappling with and hoping to provoke change on.
You referred to the attention being focused on building a new relationship and on the concept of nation-to-nation reconciliation. You’ve also heard our Prime Minister say that there’s nothing more important than the relationship with Aboriginal peoples, but we are about a year away in the life of this government, unless there is a surprise. This is the last year of a four-year term.
I would like to find out a bit about your work. First of all, this started off in a very promising way, but how is the government doing right now with those lofty and maybe very ambitious goals? How do you feel? Are we making progress? Could you comment on that? It’s this government to which we will be making recommendations. I guess that leads to another question that I’ll also ask you. What should we tell the government now, given these efforts and these lofty goals?
Mr. FineDay: I go home quite a bit. I get back to my community quite a bit. In this work I remain grounded by my family, my aunties and uncles, and my mom and dad who raised me to see the good in people. I go home sometimes and my family will say [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin]. It is in my nickname. It means big forehead in Cree. There is nothing quite like seeing all your eyes just look a little bit above mine. They will say sometimes, “You are too polite to Canadians. You are too nice to Canadians.” That might be true. I come and oftentimes give Canadians the benefit of the doubt that if they knew what injustice was happening in their backyards, they would urge their representatives to do something about it.
I am not a partisan person. I hold no membership to any political party. I think this government means well. I think this government has made a great many promises and is ambitious. I think it is good to be ambitious. I think some of the greatest things to come out of this country were driven by ambition. I would hate to see a government so committed to creating a new relationship with Indigenous people lose their ambition and settle for something secondary in a relationship.
Has this government attained all that they wished to in their first mandate? I don’t know. I would hazard maybe not. Has this government made all the progress that Indigenous peoples wanted them to in this mandate? I would say certainly not. Reconciliation is going to take time. When we think about redefining a relationship, when we think about what the power behind the words nation to nation really means, we’re going to have to change the entirety of how government does business with Indigenous peoples. We’re going to have to restructure entire departments. We’re going to have to retrain public servants who have been doing this work for quite a long time to think differently, to act differently and to do differently.
If you ask me where we are in relation to the government’s action on reconciliation, we are yet early on the path. Still today, there’s too much inequality. Still today, there are Third World conditions. Still today, as we sit here, there are communities that still live without clean drinking water. That’s certainly not where we want to be as a country. I also don’t believe that’s reconciliation, by the way. I don’t believe that by giving clean water to First Nations is reconciliation. I don’t believe that giving proper educational resources to a community is reconciliation. Building a road and offering medical care are necessities of life. The real reconciliation happens when we can rebuild our nations. The real reconciliation occurs when we’re no longer talking about what keeps us alive but what keeps us living: our language, our culture and our ceremonies, those beautiful things that make us Indigenous people and that make us so proud. It’s those things that young people are yearning for and are striving for when we talk about what we yet need. Without that solid foundation of culture, language and ceremonies, we are still suffering from a case of colonization, that case of colonialism and that sickness that Canada has been suffering from for too long.
You’re right, senator, in asking where we are on this path and how we’re doing. As a country, we need to define some terms. We’ve missed that part. I go across this country and it seems, if I am brutally honest, that we don’t know what nation to nation really means. We are confused about what reconciliation looks like. Whose job is it to define those terms? How do we offer a common vision or [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin] in my language, that seeking of common ground?
Senators, it’s your role just as much as it is the RDG’s in Alberta or Saskatchewan to make sure that we’re on the same page, or else this project of reconciliation, this ambition that we’ve set out as a country, goes off in all sorts of directions, and we’re left wondering where we started from, to begin with. I hope that answers your question, senator.
Senator Doyle: You talked about rural reconciliation. I was wondering to what extent you involve very remote Indigenous communities in your exchange program. I am thinking specifically about Labrador. Has there been any interest in or any uptake of your program there in a place that’s very remote?
Mr. FineDay: Absolutely. I am very conscious of ensuring that we don’t lose the remote communities in this work and that they’re not overtaken by the urban centricity that sometimes envelopes programs and non-profit organizations. We’ve had a high participation rate from Happy Valley-Goose Bay, for instance. We’ve had folks from Kuujjuaq in northern Quebec and Rankin Inlet folks participating. We’ve made sure that northern and remote communities are also at the core of this work, recognizing that even within reconciliation it is important for us to remember the Inuit context of reconciliation gets lost, the northern context of reconciliation gets lost and the remote context of reconciliation gets lost in these programs.
Senator Doyle: How would you solicit involvement by a corresponding non-Indigenous group of people? Do you match up Indigenous youth from a whole community, or do you look for youth clubs or schools? How do you manage the whole program of matching up Indigenous and non-Indigenous people?
Mr. FineDay: It will look different every time, senator. Sometimes it will be a classroom that signs up on each side, which is very easy for us to facilitate. Other times we have to go out and seek participants individually. It really depends on who our volunteer is in Happy Valley-Goose Bay, who is organizing it on their side, who has requested the program on their side, and whom we have in Toronto, Saskatoon or Vancouver that can facilitate it on their side as well.
Senator Pate: Mr. FineDay, I am really struck by a couple of things. You talked about many things that I’d like to pursue, in particular some of the things that I’ve worked on. I don’t know if you’re aware of the most recent stats on the overrepresentation of Indigenous people in the prison system. All joking aside, thanks for making us laugh; thanks for brining laughter here.
Although Indigenous youth represent about 8 per cent of the youth population in the country right now, and it’s growing, they represent 50 per cent of youth in custody. That number is skewed in part because girls and young women are 60 per cent of the youth in custody right now. If we look at adults, Indigenous women have reached 40 per cent in the federal prison population. In your territory, as you may know, Indigenous women, particularly in P.A., are now 90 to 95 per cent of the provincial jail population and youth is up, they say, over 75 per cent. Again, I think it’s much higher.
The resources that are being spent on child welfare and on youth custody could be being invested in different ways in the community. I am curious as to what ways the youth groups that you’ve been working with have identified those resources could be spent or could be addressed that would actually contribute to a true nation-to-nation relationship by providing a way for young people to enjoy more substantive equality than they do right now, if you’re comfortable discussing some of that.
Mr. FineDay: I think it’s important to reflect on those numbers.
We are breeding the next generation of criminals. I have my own relatives who have been in and out of the prison system, relatives with whom I grew up. They have gone into jail and suffered greatly. They were not offered any sort of meaningful rehabilitation. They were not offered affirmation of self, language or citizenship to their nation. They came out with no other skills than knowing how to be a better criminal. What a great tragedy that is for our country. What a great, dark mark for our country.
When you bring up those statistics, I can’t help but think of all the young people who could be in university or completing their high school education instead of being in jail because of the poverty, the abuse and the intergenerational impacts of not only residential schools but colonialism at large, which we have begun to discuss already today.
I appreciate your question and its generative nature to reflect on where those resources could be better spent. We know around this table the inequality in educational funding that exists on and off reserve. We know that my younger cousins at Sweetgrass First Nation probably won’t get an opportunity to take drama, to have art class or a science class, the things I was afforded because I went to school in Saskatoon. How do we call ourselves a fair country? My cousins at Sweetgrass First Nation won’t have the same opportunities as the folks in the town of Cut Knife, just down the road maybe 20 minutes from my First Nation community. They have sports teams, recreational activities and all other sorts of opportunities.
I don’t want to be a broken record here at this committee. I don’t want to echo things people have already said but, darn it, reconciliation is going to cost money. It is going to cost resources. It is going to cost our ability to hire teachers at competitive salaries as those they would make in the city or in town and to provide equal benefits so that we can attract and retain the top talent. I hate that right now Indigenous means remedial. It means lesser than. I hate that kids who are going to school in a First Nation community are more likely to drop out of university if they graduate at all. Even if they do somehow make it out of the corrections or justice system, they often end up failing later down the road.
Senator, the issue of justice you’ve brought up is central. If we’re going to make any sort of progress in reconciliation, we need to overhaul the justice system. We need a justice system that is responsive to Indigenous offenders, particularly Indigenous young people. The rehabilitation must come from a recognition of culture, ceremony and access to the healing of the intergenerational trauma.
We’re not alone as a country in this struggle. We see this in many other colonized nations around the world, whether it’s Opoutere, New Zealand, Australia or the States. These places have already begun a justice transformation, recognizing that the Indigenous people who are cramming the justice system and filling the jails are not genetically predisposed to crime or genetically built to be stealing cars or hurting people. They’ve been hurt themselves. We’re treating the sickness of colonization as if it were a personal choice. They are not bad people. My cousin and I grew up together. It just so happened that we didn’t get to go to the same schools. We didn’t get the same opportunities, and now he’s serving 11 years and I am sitting before you. It could have easily been reversed. That’s the truth.
Senator McCallum: Thank you for your absolutely fabulous presentation. You made the statement that it is truth we need to wrestle with. As one of the newer senators, I still struggle with what self-government is because I don’t think I have seen a model yet about which I could say that is self-determination. When we build a niche within the existing colonial system, the government has the ability to keep digging in that niche and taking what they want. I have that image.
When I am in this position I need to make certain that I am not recolonizing. That’s always in my head. When you’re born with it and you’ve been in the residential school system, as I was, it’s very difficult to recognize it’s happening a little faster. When I was a dentist I would go to three schools to talk about residential schools. This was before I was a senator. I saw three Grade 5 classrooms with amazing teachers. The students got in groups built an inukshuk with little tiles. This little guy stood to present it to me. He said, “We make these of different colours. The arms are red, which signifies courage, and the legs are blue.” He looked at me and said, “Blue signifies peace, and you cannot lead without peace.” That was a great teaching moment for me. When you look at the life of trauma and conflict that we were raised in and continue to be raised in, the other side is peace. With a life of trauma we become caregivers, which is not a good thing. Our youth need to be change agents.
There’s anger. I was in the Stony Mountain Penitentiary last week to look at the issues of Indigenous workers. I spoke to some of the inmates. One said, “When I leave here, I go downtown and I ask if I can apply for a job with my anger management diploma.” Do you think he could get a job? I could just feel his anger. They don’t have adequate health care, so they come out pretty angry.
When we look at that, how do we even begin to promote peace within youth?
Mr. FineDay: Do you know what I love about my job? I get to work with incredible young people every day. Young people, as I’ve said, have a fire in their belly to see this country change. They have anger and rage. However, as a recent survey highlighted, this generation of young people is more proud to be Indigenous than any generation before. We have that anger, certainly. Just as we have that anger, more young people than ever before also have access to our elders, to our knowledge keepers, to those ones who hold the values like the one you shared with us: We must lead with peace.
We have anger, but we also have our knowledge keepers saying [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin] or just take it easy and make sure you’re not leading with your anger. That is what my own knowledge keepers have shared with me. I’ve felt that rage too. At times I still feel that rage so hot like a coal in my hand or in my mouth. I say or I might want to do things that my knowledge keepers would not be proud of like telling Canadians where to go and what I think of them when they follow me around in a store. We know that’s not our way. I know that’s not how my elders raised me. They raised me with sâkihitowin or that love feeling. They raised me with compassion, kindness and the ability to be strong in the face of mountains that we have to climb. I am so blessed to have been raised that way.
I am not alone to have been raised that way. More and more Indigenous young people are being raised that way, but it’s still not enough. That’s why it’s so important that we indigenize all of our institutions where Indigenous people are: our schools, our jails, our health care system and any other institution that we can think of. When Indigenous people are doing well, Canada is doing well. I would love this next generation to not have to suffer through the same statistics that my family and I have suffered through. I would love for every Indigenous kid to be given the teachings that I was given from my father, a proud [Editor’s Note: Mr. FineDay spoke in Nêhiyawewin] from Sweet Grass First Nation and a residential school survivor. I wish I had his strength and determination. He never raised his hand at me like it was raised at him growing up. He never let the disruption of residential school disrupt my childhood or my brother’s childhood. Unfortunately, we are the exception and not the rule for the first generation of residential school survivors.
We have to make that connection to all of our relatives who feel this anger and feel this pain. They are stuck in these institutions that don’t care why they are there or who they are. We have to offer them compassion. We have to offer them a way out. If we are serious, we have to offer them reconciliation. That happens here in the Senate. That happens down the hall in the House of Commons. However, we also have to reconcile with those who we’ve deemed to be troublemakers and those who we’ve deemed to be needy, whether they be inmates or homeless people who are more often than not Indigenous.
Until that happens, we’re not going to be able to get rid of our anger. We’re still going to feel it. I hope and I pray every morning that our young people don’t let that anger overshadow all the good things that make us Indigenous people. Prayer only goes so far. I have also been told by my knowledge keepers, my elders and my ceremonialists that we have to meet the Creator halfway when we’re doing this work. We can’t expect everything to be given to us. That’s why I do the work that I do in trying to help young people feel proud of who they are and in trying to educate our non-Indigenous relatives about why we’re so great.
We’re not just cute. We’re also funny and smart. In that way, we can find reconciliation for the next generation. We can stop that anger feeling and move on to peace.
Senator Christmas: Thank you, Mr. FineDay, for being here this evening and for sharing the voices of the young people that you have worked with. I would like to express my own appreciation for the work you are doing and to encourage you to please keep doing it.
I think you answered my first question you. I was puzzled initially by your comment about being at the crossroads, about young people being angry and in a rage, and about how you deal with it.
My second question goes back to your comment that young people are yearning or striving to learn their culture, language and ceremony. I sometimes think of those young people who get disconnected from their homes. They move to urban areas for all different kinds of reasons. I imagine you’ve seen hundreds of disconnected individuals who have that yearning for language, culture and ceremony.
Someone once told me that one of the first places that reconciliation has to happen is within ourselves. We have to reconcile with who we are. When you deal with young people who have a yearning to find out who they are and to become those proud Indigenous people they can become, how do you help them along that journey? What do you tell them? How do you help young people to reconcile with themselves and who they are? How do you fill that yearning or that striving that I see in so many young people?
Mr. FineDay: I was in Saskatoon not that long ago. It was still summertime. I was walking and saw a young man crying on a park bench. I couldn’t see his face, but what I did see was about 50 people walk by him. He was wearing a hoodie and the hood was up. I knew that statistically he was likely Indigenous. I knew that probably these business people, who were all in suits, were going to keep walking by him. I took some time. I watched for about two or three minutes as all of these people pretended as if he didn’t exist.
He was sobbing. I was across the street and I heard him. There was no way that the people who were walking right beside him didn’t hear him. I went and talked to him. I asked him what was the matter. His name was Michael. He was 16 years old. He had just lost his mom and his grandmother, his primary caregivers, in a car accident. His dad had left the family sometime before. To top it off, his high school sweetheart had just broken his heart. We’ve all been there, right? What we haven’t been through is that additional pain of losing the rest of your family and support system.
He shared with me that he was crying in this park in Saskatoon because the bus driver kicked him off the bus. His crying was making everybody else uncomfortable. I sat with him. I tried to have a conversation with him. I asked him where he was from, which community. He didn’t know. I asked him why he left school. “The teachers didn’t care about me,” he said. I asked him what he wanted to be when he grew up. “An MMA fighter,” he said. I said, “We’ll come back to that one. I’ll change your mind on that. We’ll come back to that.”
He was still upset. We began to talk about colonization. We talked about residential schools. We talked about his community. I shared with him where he was from and what his last name it meant. He said, “No one has ever told me that before.” I brought him along with me to the next meeting that I had. It was in a hotel lounge sort of thing. He came along. He filled his pockets with Pepsi right away, and he just sat there. He went on the Internet and all that sort of stuff.
My meeting ended and we talked some more. I asked him what support systems he had. I gave him my phone number and the phone number of a wellness line. I asked him what his next steps were and all those sorts of things. We created a plan to get him back into school.
I said, sort of in jest, at the beginning of this presentation that First Nations people are just that, people. Michael is a person. Michael is a kid. Many people in Saskatoon didn’t see him like that. They saw him as a troublemaker, an undesirable, another Indian who is making a scene on a street. Whether he is drunk, they don’t know, but they suspect it. The kid was suffering the greatest loss of his life, his mom and his grandma. To top it all off, there was teenage love that is tough on its own. We can get that pride back if we give these young people a sense of who they are, a sense of where they come from, a sense that there is something more to this life than pain, a pain they don’t understand why they’re going through or why it’s happening to them. Then we have a sense of survival. We have a reason to survive.
I asked Michael if I could share his story today, and he agreed very selflessly. He said, “I hope it helps somebody.” Is he still having trouble with school? Absolutely. He hasn’t had the best educational path so far. Is he going to graduate? I hope so. I think so. Unfortunately, senators, I can’t go from public park to public park saving these young people or helping these young people one at a time undo the policies of this country. That’s the work of this place. It’s the work of Parliament and the work of you. Until that happens, I promise you I’ll do the best I can, but we need action so that we don’t have another generation that’s going to fill the jails, another generation that will have to recover from their childhoods, or another generation of the Michaels that came before Michael who didn’t have someone to stop in the park and ask if they were okay.
Senator Lovelace Nicholas: I am glad you told us that young people are now proud to be First Nations, because when I was a kid I wanted to be a cowboy.
First Nations are wards of the Crown. In your words, do you think we should be dealing with the government or the Queen in terms of reconciliation?
Mr. FineDay: Can I phone a friend? Senator, we almost got through this thing without any tough questions here. That’s a tough one.
Of course we remember Idle No More. We have heard time and time again that First Nations want to deal with the Crown. We know there are still requests to meet with the Governor General or to meet with the Queen. I am thankfully not in elected leadership, so I don’t have to make those requests. There is, undeniably, a relationship between the Crown and First Nations.
Where I come from, everything revolves around the Treaty 6 and with whom we made that treaty, what was offered, what was promised and what was received. We certainly need to honour that relationship as representatives of the Crown that government is. We need to strive to uphold the spirit and intent of those treaties in legislation or in issues on which you focus as a committee, as senators and as parliamentarians in this place. To me, that’s what that means in 2018. We should uphold that relationship between us and the Crown, that very special, sacred relationship to Indigenous people, whether or not everybody agrees with me. Certainly not. I am always surprised when anyone agrees with me on anything, but that doesn’t mean they don’t have valid points as well.
You already know the message I’d like to leave with this committee, but maybe as a reminder to this committee and to government I would say that there are 633 First Nations in this country. There are Metis peoples in this country. There are Inuit peoples and communities in this country who are all extraordinarily diverse. They have different customs, cultures and relationships with Canada and with the Crown that need to be respected. Self-determination means respecting what that relationship means for them.
The Chair: I have one very short, simple question for you.
You have provided us with a wealth of information. Does your organization produce reports where you would itemize the kinds of things you’ve heard from youth across the country that we could access?
Mr. FineDay: Not yet, but that’s what we’re focused on this year. A year from now data and testimonials will be available that focus on what young people see for the future of reconciliation. Keep your eye out.
The Chair: Excellent. On behalf of the committee, I would like to thank you for coming tonight. You have certainly engaged all of us and made us think very deeply, and we thank you for that.
Senators, before starting the second panel, could I have a motion to distribute material from the Land Claims Agreements Coalition in English only to members?
Hon. Senators: Agreed.
The Chair: This can then go out to individual members.
For your information, we have translation on channel 3. If the presenters choose to present in Inuktitut, there will be translation available.
We have before us Eva Clayton, Co-Chair of the Land Claims Agreements Coalition and President, Nisga’a Lisims Government; Aluki Kotierk, Co-Chair of the Land Claims Agreements Coalition and President, Nunavut Tunngavik Incorporated, NTI; Les Doiron, Member of the Land Claims Agreements Coalition and President of Ucluelet First Nation; Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Incorporated; and Micah Clark, Legal Counsel, Nisga’a Lisims Government.
The presentation this evening will be shared by Eva Clayton and Aluki Kotierk. Ladies, begin your presentation, please.
Aluki Kotierk, Co-Chair of LCAC and President, Nunavut Tunngavik Incorporated, Land Claims Agreements Coalition: Thank you for giving us this opportunity. My name is Aluki Kotierk. It was a pleasure to listen to the earlier presenter. I really enjoyed it. It was a very interesting presentation.
We’re here to talk about something different. It’s not really talking about what he was talking about, just for your information.
It gives us great pleasure to join you today in our capacity as co-chairs of the Land Claims Agreements Coalition, a coalition of Indigenous peoples or nations that have entered into modern treaties with the Crown. We recall that the Land Claims Agreements Coalition and many of our members appeared before this very committee in 2007 when you undertook a review of the problems arising from the failure of the federal government to fully implement our agreements.
Senator Dyck and Senator Lovelace Nicholas, who are currently members of this committee, were also members in 2008 when the report was written and tabled. Our Land Claims Agreement Coalition colleague, former Senator Charlie Watt, now the president of Makivik Corporation, also took part in some of the deliberations of that committee.
We would like to draw your attention both to the testimony that we gave at that time and to the committee’s report, Honouring the Spirit of Modern Treaties: Closing the Loopholes. That valuable report has been largely overlooked by the governments since then, but most of its contents remain highly relevant today.
The Land Claims Agreements Coalition, as I mentioned, is an independent coalition of Indigenous peoples and governments who have signed modern treaties, also known as Comprehensive Land Claims Agreements. Our modern treaties are intended to deal with our relationship with the Crown, to assert and promote the well-being of our peoples, our languages, our cultures and our economies, and to address our Aboriginal rights and title through a process that can be traced back to the proclamation of 1763. Our first modern treaty was the James Bay and Northern Quebec Agreement signed in 1975. Today there are 25 modern treaties in force covering approximately half of the land mass of Canada.
Unlike the Assembly of First Nations, the Inuit Tapiriit Kanatami or the Métis National Council, we are not a formal incorporated organization or body. We are simply a coalition of modern treaty holders who have shared interests in the proper implementation of our agreements.
We formed following a meeting held here in Ottawa in 2003. We found that all of us from across the country had serious problems getting proper and effective implementation of the agreements we had signed. We formulated the Four-Ten Declaration as a statement of fundamental principles. I believe that copies of the Four-Ten Declaration were provided to the clerk for your reference. The essential four main points are: our treaties are with the Crown, their broad objectives must be met, implementation must be carried out by officials with sufficient authority, and an independent body should review and report to Parliament on the implementation process.
I would like to elaborate on the last of the four points. The coalition has now developed this idea in considerable and practical detail. It has recommended to the Government of Canada to establish an independent modern treaties implementation review commission in the Office of the Auditor General. We have provided copies of this proposal to the clerk for your reference. We formally provided a copy to the Prime Minister last November during our Land Claims Agreements Coalition Conference. It has also been put forward in the Inuit-Crown Partnership Committee process.
It seems that the government is now giving serious consideration to our proposal. In particular, it is referred to in the government’s September Overview of a Recognition and Implementation of Indigenous Rights Framework. However, the government’s discussion refers at the same time to other oversight bodies with various responsibilities. The problem is that the other possible tasks identified for a new institution in the oversight paper, such as recognition of Indigenous nations and collectives, alternative dispute resolution, oversight of Aboriginal and historical treaty rights implementation, and oversight on reconciliation and public education, are either irrelevant or redundant for those Indigenous peoples who have already dedicated decades and millions of dollars to achieving our modern treaties.
These other functions clearly do not lend themselves to being carried out by the Office of the Auditor General, with its existent independence, review function and reputation for impartiality. We certainly don’t oppose the creation of a new separate institution for Indigenous peoples who do not have or do not yet have modern treaties. Nonetheless, we also believe that if the function proposed by the Land Claims Agreements Coalition are rolled into an all-purpose Indigenous recognition, implementation oversight, dispute resolution and public education commission, the vital task of overseeing modern treaty implementation will be lost in the flood of competing responsibilities.
Is this Modern Treaties Implementation Review Commission the answer to all our problems? No. We have other mechanisms, though, at hand. We have the courts, for instance. We now have the arbitration process in the Nunavut Agreement, but the Modern Treaties Implementation Review Commission is a mechanism that addresses Parliament’s specific responsibility for Canada’s constitutional commitments. We believe it is a practical and modest step that can be taken immediately.
That concludes my formal remarks. I’ll now pass it on to my colleague Eva Clayton, President of Nisga’a Lisims Government.
Eva Clayton, Co-Chair of LCAC and President, Nisga’a Lisims Government, Land Claims Agreements Coalition: I thank senators for welcoming me. I could feel the welcome in the room as I walked in.
I would like to raise another concern of the coalition that has also been put forward in the Inuit-Crown Partnership Committee process. This is the inclusion in the Interpretation Act of a comprehensive, non-derogation provision in place of the differing versions of the non-derogation provision that have appeared in various statutes since 1982.
We draw your attention to the 2007 report and recommendations of the Standing Senate Committee on Legal and Constitutional Affairs, Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights. I note that Senator Dyck and Senator Lovelace Nicholas as well as our LCAC colleague, former Senator Charlie Watt, were all part of that committee as well.
The honourable committee recommended that the following wording be inserted into the Interpretation Act:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
No action was taken by the government on the recommendations in this report, but the members of the coalition have continued to endorse and pursue them. We have raised this recommendation with Ministers Bennett and Wilson-Raybould and we are pleased that the government has given it favourable attention in its September Overview of a Recognition and Implementation of Indigenous Rights Framework.
Even if no other legislative steps were to be taken at this time, this long overdue Senate committee recommendation would be an important step toward reconciliation and ensuring that all federal laws and policies are interpreted so as to uphold and not abrogate or derogate from Indigenous peoples’ section 35 rights.
As legislators, we must ask you to be vigilant as other ineffective non-derogation language has emerged in recent federal bills. This is language that the Senate committee critiqued and which has not been used for more than a decade. Unfortunately, in the last year that unacceptable non-derogation language has reappeared in legislation such as Bill C-68 and Bill C-69. An amendment to the Interpretation Act should also eliminate these unacceptable and meaningless provisions. We note that the government is facing considerable criticism from some quarters in respect to its approach to developing the recognition and implementation of Indigenous rights framework.
While we cannot comment on the elements of the package that have little or no application to modern treaty holders, we do suggest that an amendment to the Interpretation Act and the establishment of a Modern Treaties Implementation Review Commission are two important steps that could be taken as part of the national reconciliation process. We recommend them to you for your support, even in the absence of other large measures at this time. They are important and should go ahead, even if other parts of the proposed Indigenous rights framework do not.
Finally, we note that the government is increasingly and repetitively referring to what it calls a distinctions-based approach. By insisting on emphasizing and maintaining distinctions between First Nations, Inuit and Metis peoples, the government is no doubt responding to approaches urged by national organizations. It also risks failing to make the right distinctions among Indigenous peoples. Their approach may have some limited geographic or cultural application, but it fails to make the necessary distinction between all Indigenous peoples with modern treaties, on the one hand, and those who have either historical treaties or no treaties at all. It impedes or frustrates the development of solutions to problems shared by First Nations and Inuit modern treaty partners. It obfuscates the reality of modern Crown-Indigenous relations. At its worst, the distinctions-based approach that has been adopted makes the fundamentally unsound assumption that ethnic distinctions among Indigenous peoples are more important than their current political and constitutional situations.
We stress that any legislation or policy must maintain the distinction between Indigenous peoples who have established our rights through agreement or litigation and those who merely have asserted rights of varying degrees of credibility. This is especially important where asserted rights would conflict with or undermine established rights. Continued failure to make this distinction will inevitably lead to conflict and litigation. The positive objectives of the government’s initiative would be defeated by a failure to make the right distinctions. We urge you to avoid this outcome.
The Chair: Before we begin our questioning, I would like to thank you for drawing our attention back to the previous reports from this committee in 2008, for letting us know that those recommendations are still relevant, and for drawing our attention to the report on the non-derogation clauses. I think that report was by the Legal and Constitutional Affairs Committee in 2007, so thank you for that reminder.
The floor is now open for questions from senators.
Senator Christmas: Thank you very much for coming this evening. I know some of you travelled a great distance to be here. Obviously we’re very concerned about what the nation-to-nation relationship between the Crown and Indigenous people in Canada will look like in the future, and obviously the members of your coalition have had a direct experience with the Crown on working out that nation-to-nation relationship.
I have a number of questions. I guess I’d like to start off with Ms. Clayton. You mentioned that there were unacceptable non-derogation clauses in Bill C-68 and Bill C-69, Bill C-68 being the Fishery Act amendments and Bill C-69 being the impact assessment. Could you elaborate why those non-derogation clauses are unacceptable to the coalition?
Ms. Clayton: When you ask a question about the unacceptability of these various pieces of legislation, the first thing that comes to mind in the case of Nisga’a is that we have a treaty that sets out our relationship with our treaty partners. It is unacceptable to us when there’s no consultation on the bills coming out because we have a relationship that should have happened before the first outcome.
I have a technical team here who can probably provide the legal answer, but that’s what it states to me.
Micah Clark, Legal Counsel, Nisga’a Lisims Government, Land Claims Agreements Coalition: As President Clayton noted in her introductory remarks, this is an issue that has been pushed forward by the LCAC for quite some time, for over a decade. In fact, representatives from both NTI and Nisga’a Lisims Government gave evidence before the 2007 report came before your fellow standing committee.
To get to the question of unacceptability versus acceptability, in the decade that we’ve been dealing with this, we came up with the very technical language of good clauses and bad clauses. I’ll stick to that very technical language. The example of a good clause is what was recommended by the Senate committee in their 2007 report. Just to read that again so I can contrast it with an example of a bad clause, what was recommended in 2007 is:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.
The purpose of this clause is to send a signal of intention from Parliament on how you want public officials and courts to interpret the legislation that we’re enacting. The reason why that was put forward as a positive, why we call that a good clause, is you can see it’s a positive statement: an “enactment shall be construed so as to uphold . . .” It’s an intention: Don’t interpret this in a way that doesn’t negatively affect; interpret it in a way that maintains and upholds these section 35 rights. The first example is it’s a positive statement of a right.
I’ll contrast that with an example of what we would call a bad clause that’s currently set out in Bill C-68. It says:
For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada . . . .
Don’t derogate is not a signal of a positive intention. While the positive, the good clause, is focused on the rights, upholding the rights, this clause speaks to not abrogating or derogating from the protection provided. That’s a very different thing. It’s not focused on the rights. It’s not signaling an intention for Parliament to focus on upholding rights. If there’s some uncertainty, it is saying not to interpret it in a way that deals with protection provided for by the rights. That’s a little less certain. It’s a little clear what are those protections. I would suggest the protections set out in the 1982 Constitution Act, or is it something different?
That’s what President Clayton referred to as unacceptable versus acceptable clauses.
Senator McPhedran: Many members of this committee just a month ago travelled into the Western Arctic and met with leaders from a number of the members of your coalition. Also, just before we broke for the summer, we had as one of our expert witnesses, Kim Baird from Tsawwassen. One of the points she made to us is after Tsawwassen signed its modern urban treaty, they appreciated more fully that they were very few resources to actually support the implementation of the treaty.
I wondered if any one of you might want to tell us more about that. There was reference to this in a general way, but I think we would very much appreciate some specific examples. Also, much as the previous question illustrated, what should it be? What is the good version that we should be looking to? What are experiences that have allowed you to share that with us?
Les Doiron, Member of LCAC and President, Ucluelet First Nation, Land Claims Agreements Coalition: My name is Les Doiron. I am the elected president from the Ucluelet First Nation on the extreme west coast of Vancouver Island, and one of the sons of the late Lane McCarthy. My hearing is poor, so could give me the question quickly again?
Senator McPhedran: Sure. Of course.
I was building my question on testimony that we had here just a few months ago from Kim Baird, as you know, who was chief when Tsawwassen signed its treaty. As a committee, we just recently returned from the Western Arctic, where we met with leaders from a number of the members of your coalition. We heard often that the lack of resources for implementing the treaty showed up and became an issue after the treaty was signed, as did some expressions of wishing that kind of information and that kind of detailed discussion could have been part of the process of actually creating the treaty because, in many ways, it was too late to get the resources that it became clear were needed for effective implementation of the treaty after the self-government had started.
My questions are for you or for anyone who is comfortable responding. Was that also was part of your experience? Do you have any specific recommendations for us to consider around this particular problem or challenge of the resources that are needed to implement and to build self-government?
Mr. Doiron: Wow. I didn’t hear any of that, the first round.
I am the new guy to the political arena. People are probably tired of hearing that now, but I am three-and-a-half years into my four-year term. I’ve been an urban Indian all my life, so I had to come back and figure out what INAC was and what the Maa-nulth Treaty was. It’s a steep learning curve.
Lack of resources in implementing a treaty, that’s right in the face of every nation that’s trying to implement a treaty. We have, out on the West Coast, the B.C. Treaty Commission, which gets you to a certain step. I’ve said this at other tables, where ministers have been there and were shocked at my answer, but I said it’s like having that date and then you get dumped halfway through the night. You get to a certain point and you’re just having fun, and then what happened?
The treaty commission gets you to a certain stage. Even though you’ve signed the treaty and you think that everything is rolling along, there’s not enough funding to be able to govern. When I first arrived, I thought it was like running a small municipality or something. Then I saw it was more like running a city and quickly realized that it was more like running a province with very limited capacity and resources. It’s like driving a Cadillac from here to Vancouver and you only have a hundred bucks for fuel. You will only get so far.
That’s what’s happened in our world. We have laws and acts and such that you have, but you can’t enforce them or implement them properly because you have a lack of funding, whether it be in fisheries, hunting, animal control or zoning and bylaws and all the rest of that.
If you walk into any city council or hall in any small community, whether it be Parksville in Nanaimo or wherever it is, you will see probably 50 or 60 people. We have just over 20 and all the responsibilities that go along with it, but we do not have the capacity and we do not have the funding to be able to take that any further.
Being the new guy, I called up the treaty commission and said, “How can we get to this stage and not have help? Can we not do that?” That just comes from another angle. I think it’s just a lack of funding. They’re only supposed to get you so far. It’s a challenge at every level. It doesn’t matter what it is. It just comes down to, for us, what happens in the Indigenous world. I say this everywhere that I go: in almost every Indigenous tribe, with the exception of the two fine women I am with here tonight, 70 per cent of the population goes urban. I think that’s almost right across the board anywhere.
When your citizens go urban, they become educated. Whether you’re a dentist or doctor or whatever it is, it’s pretty hard to go back to the village. We’re a former reservation, so we’re on treaty settlement land. Under the former situation when it was a reservation, INAC was the main provider for housing and infrastructure. INAC couldn’t keep up with the infrastructure so our people had to move away off reservation and go someplace because there was not enough housing. More and more people went to where there was a theatre and a job. It’s a vicious cycle.
While I am beating that one up, 70 per cent of our people are urban. We have 700 people in our tribe and 450 are urban. As I’ve said recently, if you look at Halifax, Victoria or any other Canadian city, you will see that they have urban Italian, Jewish, Croatian or whatever cultural centre for the population. These people immigrated to Canada. They caught on years ago that they need a cultural centre to hang on to their culture, heritage and language. We didn’t do that. We didn’t have that opportunity because we didn’t have funding.
I hope that helps you with painting a picture of what some of the issues are.
Ms. Kotierk: In terms of resources, I think that’s a common denominator across modern treaty holders. I think often the experience has been that everyone who’s working so hard to get to an agreement, once they get to it they think, “Wow, we’re done.”
But the real work starts after there is an agreement in terms of implementation. I think what unites us as modern treaty holders is the fact that we’re all struggling, we’re all challenged to get to a point where we’re effectively implementing whatever agreements we have.
In Nunavut, the whole creation of the territory of Nunavut is based on the Nunavut agreement. There are 42 articles in the Nunavut Agreement. Article 4 created the territory of Nunavut, created a public government. It created a Legislative Assembly with a public government.
Nunavut Inuit worked and were able to change the map of Canada. That has been an implementation success in terms of article 4, but that is one article out of the 42 articles that we have.
I think it’s not only resources, but I really think that it’s also political will that is lacking. Each year we celebrate Nunavut Day on July 9, because that’s the year in 1993 that the Nunavut Act and the Nunavut Land Claims Agreement Act received Royal Assent in Parliament. So it’s 25 years ago we signed the Nunavut Agreement. Article 23 in that agreement speaks to Inuit representation in the government. When I say government, I am talking about the territorial public government, the federal government in the Nunavut settlement area, as well as municipal governments.
That article speaks to the need for Inuit employment plans that outline in sufficient detail how Inuit are to be trained, how they are to be moved, and how there are to be plans to get them into the positions in the public service.
It has been 25 years and Nunavut Tunngavik Incorporated is still waiting for Inuit employment plans from the federal government and the Government of Nunavut within the Nunavut settlement area. That is Inuit employment plans that are sufficiently detailed and resourced plan to show how the Inuit will become employed in the public service and how they will be able to have a representative workforce.
When we’re speaking about a representative workforce in Nunavut, we speak about 85 per cent Inuit employment. The expectation is that out of 100 employees, 85 of them would be Inuit. We’re not close to that, and yet we’ve been in agreement that this is what we would strive for, for 25 years ago.
The frustration is that one starts to feel cynical and wonder if this agreement was actually negotiated in good faith. Were we actually striving for the same thing? Because as we sit here before you, representing our people and the agreement that we’re trying to give life to, the whole purpose of those agreements is to look out for the social and cultural well-being of the people we represent.
We were fortunate enough to listen to the latter part of the previous presentation by Max FineDay. We know, statistically speaking, that our people face many social ills, but we expect by fully and effectively implementing our agreements we will be in a better place. We will be able to provide the best circumstances, so Inuit in Nunavut can live a life with dignity, stand tall, be proud of being Inuk, and know that they can positively contribute to society in Nunavut and across the nation.
If Indigenous populations are doing well, Canada is doing well. I really like that comment. The Canadian government needs to start expressing how we need to ensure that Indigenous populations including the Inuit are doing well because it’s good for Canada. If that’s the way it will become something that government will have more political will to address, then I think that’s the way we need to package it.
Ms. Clayton: For the Nisga’a Treaty, as you’ve heard in the comments of my two colleagues it is important to note that there are no resources for the implementation of our treaties. It’s important to note that we receive funding through fiscal financial arrangements to take on where INAC left off and provide the delivery of services to our people. Even with the fiscal financial arrangements they’re behind, so that needs to be reviewed as well.
It’s also important to note that for the Nisga’a we had what they called the tripartite implementation committee established under the Nisga’a Treaty. I have since learned that it died in 2010. It only had a 10-year lifecycle. I don’t understand why the tripartite implementation committee was given 10 years when it should have been for a longer period of time, until such time as the treaty has been implemented in accordance with the agreement and in accordance to that document.
It’s important for the Senate committee to take a look at the need for implementation funding for the modern day treaties. It’s important that the Senate committee make that recommendation. Perhaps it may need another review or a study, if you will. It’s important to take a look at why each of the treaties have a lifecycle of the implementation committee when the treaty hasn’t been fully implemented. The Senate committee needs take a look at that as well.
My colleague has a brief statement to make.
Mr. Clark: I’ll be brief so that we can move on to other questions.
I know you have asked it from the perspective of Indigenous resources and modern treaties, but there is also an issue the Nisga’a Lisims Government runs into in when implementing their treaty, and that’s federal resources.
I’ll give an example. Chapter 10 of the Nisga’a Final Agreement sets out a specific environmental assessment process that puts obligation on federal and provincial crowns to assess projects that may impact Nisga’a Treaty rights. The Nisga’a Final Agreement is 18 years into effect and federal laws have changed. The bureaucracy is a little different up north than it was when the treaty came into effect. We have had issues in recent years having the assessments carried out as set out in the agreement. We’ve been told in blunt terms by federal officials that they don’t have the boots on the ground to assess these projects in the manner that they said they would when we entered into this treaty. It’s not just a matter of Indigenous resources but it’s federal resources as well.
Your second question is: What do we do about it? One of the ways is to have an independent way for Canada to look at how it is implementing these modern treaties. Then we’ll get back to the issue of Modern Treaties Implementation Review Committee that has been proposed by the LCAC for some time. I think that would be a good first step in addressing that issue.
Senator Patterson: I’ve been on this committee long enough to really value the appearances of the Land Claims Modern Treaties Implementation Coalition and the Land Claims Coalition have presented over the years. You have a relationship with our committee that I know we value. I appreciate that tonight you have come up with some very concrete recommendations about what we could do.
I want to say that the Interpretation Act amendment is something that has obviously been worked on previously by committees of Parliament and the Senate. I want to add to your narrative that Senator Charlie Watt introduced a private member’s bill on the amendment to the Interpretation act. We have a lot of history. I remember the Department of Justice lawyers arguing against that proposed amendment.
This is now a time to re-examine this. I thank you for that recommendation. It makes sense to me. It’s incredible that there are various non-derogation clauses. You mentioned a few current ones, but they’re scattered all through government legislation. Some of them are even weaker than the ones you cited, I believe. This is a solid recommendation that we should discuss in our deliberations and as we move to making a report to Canada.
I want to focus on the Modern Treaties Implementation Review Commission. I have a couple of very specific questions about it. Have you had an opportunity to discuss this with the Office of the Auditor General? Could you tell us a bit more about that? Your plans for the Office of the Auditor General are impressive. Everyone is scared of the Auditor General, or maybe I shouldn’t put it that way. Everyone respects the Auditor General.
The Chair: You are being Canadian.
Senator Patterson: Some of us have a particular history with the Auditor General that we’d rather forget.
My first question is: Have you discussed this with the Office of the Auditor General?
Ms. Kotierk: The Land Claims Agreements Coalition has had discussions with the Office of the Auditor General in regard to what this commission could look like and how it could be housed within that office. It would be similar to the Commissioner of Environment and Sustainable Development. We have had some positive reception to that. The Auditor General, as part of a panel, made a presentation at our last conference in November here. I know we have also had discussions with the PCO.
Alastair Campbell can provide more details in terms of what kinds of discussions took place.
Alastair Campbell, Senior Policy Advisor, Nunavut Tunngavik Incorporated, Land Claims Agreements Coalition: In terms of the Auditor General, some technical people from the coalition met with the Auditor General on more than one occasion. He showed that he had read the draft of the report that we gave him very carefully. He had lots of observations, and we actually amended the report based in part upon some of his comments. The coalition agreed with doing that.
I suppose in some of our discussions with officials of government, not the Office of the Auditor General, we have had sort of an unenthusiastic response. There has been a suggestion that it will be a very expensive undertaking to set this up. I would say that our discussions with the Auditor General don’t suggest that. That certainly wasn’t his view. Putting it in his office means that it has access to his resources. There wouldn’t be duplication and there wouldn’t be a need for a whole new superstructure to oversee the office.
In terms of discussions at the bureaucratic level, generally their response has been somewhat sympathetic, but what is really needed is political commitment to it. In terms of that, there were some references to it, as was said in some of the speaking comments in the Overview of a Recognition and Implementation of Indigenous Rights Framework. We’ve had some discussions in connection with arriving at this framework. The general response seemed to be that: “Yes, that is a good idea, but a lot of other groups want other things and we’ll have to see how they fit together.”
That’s our concern. We think we have developed a proposal specific to modern treaties that would work. It’s cost effective. It would be objective and would provide independent assessments and report to Parliament. Adding other responsibilities in with it in some other body would not be productive.
Senator Patterson: I appreciate that very helpful detail.
I believe President Clayton said that the proposal was given some favourable mention or that there was some encouraging reference to the proposal in the September Overview of a Recognition and Implementation of Indigenous Rights Framework
We’re in the last year of the current government’s mandate, as we all know. The Prime Minister made a very significant announcement about establishing an Indigenous rights framework. Do you see this proposed legislation as a way of honouring that promise, at least as far as the modern treaties honouring the commitment to provide a new Indigenous rights framework is concerned?
We have a legislative agenda that will be shaping up this fall and in the spring of 2019. We know some of the pieces we can expect, but I am not sure we have had signals yet that the government is ready to present legislation on the Indigenous rights framework. I haven’t heard those kinds of signals coming from the government.
You have lots of talented and respected Indigenous rights lawyers within the coalition. Have you thought of drafting a bill? Maybe Canada needs to be prodded by having a bill drafted. It’s possible that a member of Parliament could bring that bill forward in case it isn’t in the suite of legislation. We have kind of informally heard about a list of bills, but I am not sure if the rights framework will make it. Have you actually thought of basing this well-thought proposal on an existing model? Have you thought of taking this a little further and drafting a bill?
I guess I have two questions. What did the government say in its September overview of the framework and this proposal, and have you thought of going further and doing the work of preparing a bill?
Ms. Clayton: I’ll leave one question for Alastair Campbell and one for my colleague Micah Clark. They are more familiar with the response in September by our technical team.
Mr. Campbell: Yes. You can find it in the document that the federal government put together called the Overview of a Recognition of Implementation of Indigenous Rights Framework, in which there is an oversight of Indigenous rights implementation. It refers to an existing institution to monitor and report on the fulfillment of the Government of Canada’s obligations under legislation, treaties and other agreements related to rights.
I suppose the problem with us is the concern that it have a broad focus rather than a specific focus. In terms of a private member’s bill, the legislation could be relatively simple. Our only concern with a private member’s bill is that I gather it’s not easy to get a private member’s bill necessarily adopted. We’re certainly not opposed to that idea, but we have not really pursued it.
Senator Patterson: I’ll say very quickly in response that Senator Joyal, a champion of language rights, brought forward a private member’s bill within the limited authority of the Senate. We can’t introduce money legislation. He brought forward that bill, and now it looks like Canada will bring forward a bill. I think Senator Joyal is happy to let his bill languish.
It was just an idea. Of course, your first preference would be to have a minister of the Crown introduce the bill. That answered my question.
Senator Lovelace Nicholas: Thank you for being here tonight. I don’t know if this is a good thing or not, but welcome back.
Do your modern treaties allow you to recognize all aspects of your Indigenous legal traditions?
Ms. Clayton: I’ll begin with the Nisga’a Treaty. Our Nisga’a culture is outside of governance this year. We have governance for governance and then we have the Nisga’a culture, simply because our forefathers, in their wisdom, saw the need to do that in case the Government of Canada thought it was not good in accordance to human rights. Some of our First Nations culture could be challenged in courts if we were to have it legalized. That’s how I am understanding your question.
Mr. Doiron: As a Maa-nulth Treaty tribe, we have our own self-governing body. We have a legislature, a president, and our hereditary spot in our governance. Do we have enough funding to do everything we need to do with that? Certainly not. It sucks. I am not going to sugarcoat it. It’s horrible.
I invite any of you to come to our village and check it out. I talked earlier about infrastructure and how horrible that is. We are building a day care that will house 52 children. It will be the second biggest building on our former reservation. That’s exciting. We have a gymnasium. That’s our government building. It is also used for floor hockey, basketball, soup kitchens, funerals and bar mitzvahs. Whatever we have, it’s under one roof. We don’t have a community centre. It is a lot like most Indian villages and communities that you travel through in Canada. A lot of communities don’t have one.
We do have a spot in our government. In the last year and a half we opened a culture and heritage department. We never had a culture and heritage department before. I am very proud of that; I am extremely proud of that. We need to document our history. We need to record our history. We need to get back the history that was extracted from our people. Yes, I am proud to say that we have a spot in our governance for our hereditary system and our chiefs.
Ms. Kotierk: With the creation of Nunavut, Nunavut Inuit chose to have a territorial public government. It is not an Inuit government. The way it is set up is very similar to the Northwest Territories where it’s a consensus-based government.
Having said that, the Inuit envisioned what would be the creation of Nunavut. As you know, 85 per cent of the population in Nunavut is Inuit. The public majority speaks a first language that is not recognized nationally by Canada, as are the official languages of French and English. That is unique about Nunavut. In every other jurisdiction you go to, the majority of the public speaks one of the official languages of Canada.
When Nunavut Inuit were negotiating for Nunavut they envisioned, even though it would be a public government, that it would be a government that incorporated Inuit qaujimajatuqangit, Inuit ways of understanding and being. I spoke about article 23 in our Nunavut Agreement because it is important to have a representative workforce. If we had a representative workforce, and 85 per cent of the employees of the territorial public government were Inuit, one would assume that Inuit people would be in decision-making positions to be able to influence how programs and services are designed. They would incorporate Inuit ways of understanding. Not only that, the language of our workplace would be Inuktitut. Currently, in Nunavut, even though the public majority speaks Inuktitut first, the vast majority of services and programs we receive are not in Inuktitut.
There are stipulations in our Nunavut Agreement that work toward trying to cater to and achieve that vision. Because we have not fully and effectively implemented our agreement, we are still falling far short of what we envisioned.
When Inuit living in their homeland of Nunavut cannot speak English receive public service or go into a bank, they have to behave with less dignity. I am thinking about my oldest aunt who cannot speak English. She is capable. She is wise. She is someone I admire in many different ways. People in my home community respect and have great admiration for her. Yet, when she comes to the city of Iqaluit to do banking, there is no one who can speak Inuktitut in the bank. She has to resort to having one of her relatives provide informal interpretation. Then we become aware of things that in other parts of Canada are viewed as confidential.
How is it that Canadians, by the mere fact of not being able to speak one of the official languages in a territory where the majority of the population are just like them, are unable to receive those services? Lots of work still needs to be done to be able to achieve that. I know that the legislative assembly of the territorial public government has seats that are available for elders. When they have sessions, elders can sit in the seats assigned to them. I watch the legislative assembly in Nunavut, and those seats are not often full of people.
I know that the territorial public government has an advisory committee of elders called the Inuit Qaujimajatuqangit Katimajiit. It is envisioned that the elders would have discussions about policy issues and provide recommendations to the territorial public government. I know they have meetings, but I question how effective they are in terms of whether or not the recommendations are being implemented. There are always missing pieces that create frustration for the Inuit who see our public government behaving in this way when there were such high expectations.
We know that government officials who talk about Inuit Qaujimajatuqangit Katimajiit principles. As a member of our society one starts questioning if it’s lip service. It’s convenient for me to say that tunnganarniq is a principle, so let’s talk about being welcoming. When there are decision papers we have to think about Inuit qanuqtuurniq. There’s a blurb on how I thought about Inuit qanuqtuurniq. Has someone really put in the thought? Has there really been community engagement on that?
This goes back to the full and effective implementation of our agreements. Article 32 of the Nunavut Agreement speaks to social and cultural programs and how Inuit need to be engaged in them. It’s written in black and white as something that needs to take place with governments, yet we’re still unable to achieve it. If we were able to have a mechanism where Inuit were fully engaged and consulted on how programs and services related to social and cultural issues could be developed within Nunavut, it would be much richer and it would better serve the majority public of Nunavut.
The Chair: I am afraid we’re out of time. On behalf of the committee, I thank our second panel of witnesses. We have taken careful note of your very clear recommendations. Hopefully we won’t be seeing you again and that you won’t be pressuring us once again to implement the things that we recommended some years ago.
Thank you for that reminder and thank you for appearing tonight.