Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 50 - Evidence - March 20, 2019
OTTAWA, Wednesday, March 20, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred the subject matter of Bill C-91, An Act respecting Indigenous languages, met this day at 6:45 p.m. to consider the subject matter of the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
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, on television or listening via the web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin peoples.
My name is Lillian Dyck from Saskatchewan. I have the honour and privilege of chairing this committee.
Today, we continue our pre-study of Bill C-91, An Act respecting Indigenous languages. Before we begin, I would like to invite my fellow senators to introduce themselves.
Senator Christmas: Dan Christmas, Nova Scotia.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator Francis: Brian Francis, Prince Edward Island.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Alberta.
Senator Tannas: Scott Tannas, Alberta.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
The Chair: Thank you, senators. I would like to welcome the National Chief of the Assembly of First Nations, Mr. Perry Bellegarde. He is joined by his special advisor, Mr. Roger Jones. Thank you for taking the time to meet with us this evening. You may begin with your opening remarks and following that there will be questions from the senators.
You have the floor, National Chief Bellegarde.
Perry Bellegarde, National Chief, Assembly of First Nations: Thank you, Senator Dyck.
[Editor’s note: Mr. Bellegarde spoke in Cree.]
Just a little bit in Cree. I am happy to be here and am thanking you all as friends and relatives and acknowledging the Algonquins as well for hosting this meeting.
[Editor’s note: Mr. Bellegarde spoke in Cree.]
Little Black Bear Reserve, that’s where I’m from, Treaty 4 territory in Saskatchewan, close to Regina. I bring you all greetings and thank you for this opportunity to say a few words here regarding Bill C-91, An Act respecting Indigenous languages.
First Nations languages are central to who we are as peoples, our culture, identity and overall well-being. Our languages are unique to these lands and not one of them is safe. I would like to explain why passing Bill C-91 is so essential.
First, it is a question of urgency. It has been 20 years since the Assembly of First Nations chiefs in assembly declared a state of emergency regarding First Nations languages. We cannot allow the opportunity for Indigenous languages legislation to pass us by. Our languages are in a state of crisis. The situation of First Nations languages has worsened since that declaration, through Resolution 37-2000, the National First Nations Language Strategy, and it will continue to worsen until concerted efforts through concrete measures and adequate sustainable and long-term financial investments are made.
Second, the process involved significant engagement. The development of Bill C-91 was a collaborative, cooperative process. We undertook extensive engagement in 2017. We focused on receiving the views of over 500 language experts from across Canada, including elders as well as leaders and educators, youth and, of course, our off-reserve membership was always welcome and there were participants from our off-reserve citizens.
As a result of our engagement, a report was produced and our chiefs accepted that report and provided direction regarding the AFN involvement in the form of co-development principles. These principles were reflected in Bill C-91. I will quickly outline them here.
Number one is the recognition of the importance of Indigenous language to land, culture, traditional knowledge, world view, participation in the economy and domestic and global relations.
Number two is the acknowledgment of the need and importance of redress of harm by colonialization, destructive policies and laws.
Number three is an affirmation of commitment to Truth and Reconciliation Commission Calls to Action, the United Nations Declaration on the Rights of Indigenous Peoples and other key human rights instruments and principles.
Number four is an affirmation of the various approaches to language recovery, revitalization and maintenance, and the critical role of education, lifelong learning and opportunities for language learning.
Number five is the articulation of objectives for the protection and support of Indigenous languages and related rights, including intellectual property rights, cultural appropriation, et cetera.
Number six is an affirmation of First Nations jurisdiction over our languages.
Seven is the articulation of enforceable individual and collective rights.
Eight is the articulation of specific federal obligations, duties and authorities to protect and support Indigenous languages, including the funding.
Number nine is to acknowledge the need for proficient Indigenous-controlled systems and capacities for the archiving of and for the provision of access to language data.
Number ten is authority to establish suitable institutions to advance Indigenous languages, objectives and rights and that such institutions will not displace existing First Nations institutions.
Number 11 is establishing annual reporting of five-year review requirements.
Those were the 11 principles in the report and they were accepted by the Chiefs’ Assembly. Those principles are reflected in this legislation in some way, whether in the preamble or different articles. It’s throughout this piece of Bill C-91. From our perspective, as the chief of the AFN, we follow the chief’s direction in the assembly.
We believe the formulation of Bill C-91 and the planned implementation work will advance each of the principles in some form or fashion.
Third, this co-development process will continue pursuant to a joint work plan with Canadian Heritage. We don’t just want the legislation to be co-developed; the implementation plan has to be co-developed. That’s the very important piece. You all know the access to Treasury Board and finance and everything else and their regulations. That’s the very important piece that has to be respected and co-developed as well.
That’s where you’ll get into discussions regarding the funding mechanisms, establishment of the office of the Indigenous language commissioner, the appointment of the commissioner, education, lifelong learning, Indigenous language entities, translation and interpretation, the five-year review, communications, the whole-of-federal-government conformance with legislative intent, federal-provincial-territorial intergovernmental cooperation and, of course, the regulations.
Therefore, it’s foreseen that these important issues will be addressed in a co-development process in policy regulation and implementation.
We’ve heard recently that a number of amendments to Bill C-91 have been proposed. As we understand it, a number of those amendments were approved by the House of Commons Standing Committee on Canadian Heritage. Based on our quick review, we do not believe the amendments fundamentally change the intent of the act. Rather, these amendments clarify and make improvements to Bill C-91.
From what I have heard so far, though, there are some amendments that have passed that are kind of concerning and present a red flag. For example, there are two of them.
There is the change in the wording from fluency to proficiency in clause 5 of the purpose. While I understand this change wasn’t implemented everywhere in the bill, the goal is to bring back a critical mass of fluent speakers. I heard a concern that there is no consensus on the definition of fluency over proficiency.
You could be proficient, but are you fluent? It’s a red flag.
The next one is the change in the wording in clause 5(g). We view it as regressive and our preference is to keep the wording in the original Bill C-91.
Those are two examples of red flags in terms of the amendments that were proposed.
I also know that the witnesses raised important issues for discussion at the committee meetings, which are not obviously addressed in the bill.
For example, there was the discussion on off-reserve access. During our engagement sessions, our people expressed the view and expectation that all Indigenous peoples have access to language learning, regardless of residency, gender, age or education. The manner in which this will be best ensured is through the work on the Treasury Board expenditure and program authorities regarding recipients, authorized expenditures, delivery mechanisms et cetera. This ongoing work must be done on a collaborative basis.
On the last page, it was made clear to us in the course of the engagements that the language experts and champions had to lead and guide the real work of language reclamation, revitalization, strengthening and maintenance. Indeed, the experts have to be allowed and supported to do their work.
To conclude, Canada, including parliamentarians, must put the same time and energy into revitalizing First Nations languages as Canada put into trying to eradicate them — I’ve said that before and you know what we’re talking about — in the residential school system.
I’ve also said before that our Indigenous languages should be viewed as Canada’s national treasures. They’re not spoken anywhere else in the world.
The proposed act, with the inclusion of the amendments from the committee as I understand them, is a stepping stone. We have to work together to pass this bill and to continue to work together in implementation to ensure it achieves its objectives of reclaiming, revitalizing, maintaining and strengthening First Nations languages.
This is enabling legislation. It will meaningfully support and fund Indigenous initiatives led by Indigenous peoples to bring our languages back through the inter-generational transmission of languages, including in ceremonies, at home, in our communities and in our daily lives.
In other words, this bill can be seen as a tool for Indigenous peoples to regain fluency and to make First Nations’ languages living languages once again by supporting and funding the initiatives.
The implementation of this legislation will be a major legacy to our children, our grandchildren and those yet unborn who will be able to grow up learning and speaking our languages.
I’ve always said there is a business case. Even studies have shown that when you’re fluent in your language, you’re more successful in school and, therefore, more successful in life. The fastest-growing segment of Canada’s population is young First Nations’ men and women.
Let’s celebrate 2019, the International Year of Indigenous Languages, by passing this act and preparing for the implementation together.
Finally, to ensure this legacy, we are also pressing the Government of Canada to support the UN adoption of an international decade of Indigenous languages in a timely manner.
With that I say thank you for listening. Kinanãskomitim.
The Chair: Thank you, Chief Bellegarde.
Senator LaBoucane-Benson: Thank you very much, Chief Bellegarde, for your presentation. We had the minister here the other day and we were talking about the funding mechanism. I have to admit it wasn’t clear to me at the end of the discussion.
How will the dollars flow, in your mind, from the federal government to get all the way to the communities so that community-based people are actually doing language instruction and programming, but maintaining the self-determination of the AFN and the two other bodies that were at the table in the co-development? How is that going to happen?
Mr. Bellegarde: That’s a good question. Again, that’s why the need is to co-develop that in the regulation and implementation pieces. When we look at it, we have to look at what’s there across Canada right now.
In some provinces, you have really strong institutions for Indigenous language revitalization — I think of British Columbia and Tracey Herbert and the First Nations cultural piece, the centre that’s there. If we could replicate that nationally, that would be an ideal tool. Unfortunately, that’s not replicated in every province or territory. You have to look at the existing mechanisms and institutions that are there and build upon their mandate and authority. That’s one possible vehicle. But that has yet to be worked out in the implementation regulation pieces. That’s why we have to co-develop it together. It’s going to vary from province to province to territory to territory.
Senator LaBoucane-Benson: This is a proposal-driven —
Mr. Bellegarde: No.
Senator LaBoucane-Benson: Do you see it as, for example, the money flows to the AFN and then you decide?
Mr. Bellegarde: No.
Senator LaBoucane-Benson: No? I’m running out of ideas. That’s all I’ve got.
Mr. Bellegarde: I’ll bring it to the chiefs in the assembly for direction on that.
Senator Pate: Thank you for joining us, national chief, and for your submissions.
The Native Women’s Association of Canada testified before the Canadian Heritage Committee that they had significant concerns about this bill, particularly that it didn’t use a culturally relevant or gender-based lens to identify the impacts that it would have on marginalized and vulnerable people, particularly women. They indicated to the committee yesterday that in their opinion gender equality was not a priority in the development of the legislation.
In your view, what would be the impact of this legislation on the ability of Indigenous women as keepers of tradition, culture and languages to help preserve languages and those of their children?
Mr. Bellegarde: Personally, you always find balance between male and female. In all our ceremonies, half is male and half is female. Using a gender-based lens is important. I’ve always looked for ways to make things better. If you can improve upon it then let’s do that.
I’m also going to be conscious of the time frame. June is fast coming. I always have this sense of urgency to get things passed, and two words stick on my mind at all times: “Royal Assent.” I’m very mindful of the potential opportunity that may be missed if we try to seek the perfect piece of legislation. Ideally that’s how it should be, perfect.
I’m mindful of the time frames. I’m also mindful that there are possibilities for amendments in the future. With an election coming in October, we don’t know what will happen. You don’t know. I’m very mindful and fearful that if this opportunity is missed, to have this piece of legislation passed, by both of the houses and achieve Royal Assent we may not see this opportunity again for many years.
Senator Francis: Thank you, Chief Bellegarde, for coming here.
You mentioned in your opening remarks that language is central to our cultural identity and well-being and also that language is in a state of crisis. I couldn’t agree with you more. When I think about my own province of P.E.I. there are only two people who can write and translation the Mi’kmaw language and one of them is my wife. It is, indeed, in a state of crisis.
Yet, I look at the huge discrepancy between the funding levels. When you look to English to French versus Indigenous languages, $125 million a year for English and French each and $1.1 million a year for each of the 60 Indigenous languages. What are your thoughts on that? As we all know, it comes down to dollars.
Mr. Bellegarde: I would answer this way, senator. We have over 60 plus First Nations languages and they are at various stages of loss. People say Ojibwe will be here and Cree will be here and Inuktitut, but none of them are safe. The resources really do have to be front and centre to match the needs.
We’re very careful because there’s always a debate about, “Why not have the Indigenous languages as official languages and achieve the same status as English and French?” We talked and debated about that. We wanted to ensure that there’s sustainability and statutory obligations regarding the funding piece because you see the unilateral cuts, if there’s no legislation in place.
I said it this way — and not to make light of it. I don’t need to see Cree on a box of Corn Flakes. I don’t. What I mean by that, you see English and French on it. Is that going to help bring back fluency? Is that going to help bring back any of our languages by having it in that official way? Eventually we will get there. The resources are key and fundamental — satisfactory, adequate resources. Start it and then keep building upon that, once the needs have been identified. We don’t know exactly the state because the studies have not been done.
What are the financial resources required to really bring back fluency among all those 60-plus Indigenous languages? Once they’ve identified what the needs are, then we’d hope that the Crown can commit that those resources are there. I’ve always made this statement as well, namely that if the Crown would commit the necessary resources to preserve, revitalize and reclaim our Indigenous languages as they meant in eradicating them, there should be a lot of resources there. Once the needs have been identified, I would hope that adequate financial resources would be identified every fiscal year, statutory. That’s why we looked at section 35. These are judicible rights. Language rights are there as are constitutional rights, but they are inherent rights. We want make sure those resources are there every step of the way. That takes time to build upon, but start it.
Senator Francis: I’m very much in support of the bill. As a former chief and leader, I really see the necessity for it. It is a starting point. There’s a lot of work to it. I see it as a positive way forward. Thank you.
Senator Coyle: Thank you very much, Chief Bellegarde, for being with us and reiterating, in more detail this time, your point of view on this particular bill. You were really strong with us last time we met with you on your three priorities. This was definitely at the top of the list. It’s good to hear that reaffirmed and also the detail that you’ve provided us with today.
My first question is about the principles that you have outlined. I want to unpack principle number 10 a bit, “authorities to establish suitable institutions to advance Indigenous languages, objectives and rights that such institutions will not displace existing First Nations institutions.”
When you say “authorities,” who do you mean by authorities? Second, what are you concerned about? Is there something specific you’re concerned about here in terms of this possible displacement?
Mr. Bellegarde: Since this was a co-development process, we’ve had different good constitutional lawyers and people at the table of co-development. Roger Jones who is on my right. I’m going to ask him to take on that good technical question.
Roger Jones, Special Advisor to the National Chief, Assembly of First Nations: Thank you, national chief, and thank you, senators. There are really two dimensions to principle number 10. One of them is there are existing institutions which have been created by First Nations people’s themselves to work in this area, for example, cultural and education centres; some of them are actually academic institutions. Others exist by way of, let’s say, the First Peoples’ Cultural Council in British Columbia. People said clearly that those entities do this work and they have expertise in this area. They need to be supported versus being displaced by the creation of some brand new entities, whether it’s nationally, or regionally, or locally. That’s the first point.
The other point is people understood the value of having something like the Indigenous languages commissioner, which primarily would be an oversight body with respect to making sure that the Government of Canada was in compliance with whatever the legislation is going to say. It could also be seen to be supporting the work either at the local or the regional level.
I think it was fairly broad in terms of what people wanted to be able to say.
Senator Coyle: Thank you for that clarification. My final question — although I have one if we have a second round — is about off-reserve. You mentioned consultation with off-reserve people. You also mention on page 3, that the expectation is that people will have access to the language learning, regardless of residency, gender, age or education.
Could you speak a little more to how you actually see that happening, particularly with the off-reserve population which all of us know is very significant in our country.
Mr. Bellegarde: Last time I talked about three points. The first one I talked about was the Corbiere decision. Were you all here last time? Is it ringing bells? No? So maybe just quickly I’ll give you the Coles Notes version of the Corbiere decision. Supreme Court decision, First Nations. No matter where you reside, you have the right to vote for your chief and council at the reserve level. Basically we say the chiefs and councils represent all of their citizens, on and off reserve, because of the Corbiere decision.
Now, having said that, you might have the right to vote. There is going to be at the next point a reasonable expectation to receive services and programs, and your rights are portable we say. I’m not just a treaty Indian if I live on our First Nation of Little Black Bear. Services and programs should be portable. There is going to be a reasonable expectation of services and programs to follow. There is going to be a link back. That was one point I said last time.
Then I talked about the use of technology to make sure that these services and programs can be utilized, not only on First Nations territories, ancestral lands, but also in urban centres.
The third thing now — and this is again to build upon and make sure that you are flexible in your regional approach, province by province, territory by territory — and look and see if there are existing institutions that can expand their terms of reference, authority and mandate to not only on reserve, but off-reserve. Examples would be the Saskatchewan Indigenous Cultural Centre. It is there and it has been set up to look after the Cree, the Saulteaux, the Dene, the Dakota, Lakota, Nakoda tribes in Saskatchewan. Again, not just on reserve but they can use to expand their service programs off reserve as well.
You would have to do that assessment-engage province by province, and those existing institutions that are there that have the capacity and capabilities to expand and look at the urban side. There are three pieces: The Corbiere piece, the technology piece and utilizing existing infrastructure institutions that are there, and if they are not there they may have to be created, but that can be developed. Then the implementation piece on the regulations part with Treasury Board.
Senator Coyle: And supplemental on your last point about institutions that are there? What about the Friendship Centres?
Mr. Bellegarde: It is a possibility, but again they don’t have capacity in my quick estimation in the sense of how many are doing that now? It all comes down to capacity, you know? That’s one of the pieces that has to be looked at. You don’t want to reinvent the wheel.
Senator Coyle: Thank you.
Senator Lovelace Nicholas: I apologize for being late. I am concerned about the co-development process. You said a federal-provincial-territorial relationship — I just don’t like it when there is legislation and it is just not myself — that the province has more say than the Indigenous people. As you know, the province will take their good old time to bring the money to the First Nations. That’s a very big concern on all the legislation we’ve been dealing with. What are your concerns about that?
Mr. Bellegarde: It comes down to roles and responsibilities and functions of levels of government. I think back to federal, provincial, territorial governments and 1977, EPF, Established Program Financing, where the federal government offloaded to the provinces three very important things, education, health care and social services. They started off-loading things. You can go back to section 91(24) and the federal government is responsible for Indians and Indian lands. Not Indians on Indian lands. It says “Indians and Indian lands.” It doesn’t say, “Indians on Indian lands.” It says “Indians and Indian lands.”
The differential about who is responsible for what. I believe the role of provincial governments are going to be key, and they should be brought in at some point. It wasn’t the clear intention of this legislation for that because, again, provinces have responsibility for education. Now the federal government already transfers billions of dollars to provincial/territorial governments for education. Where is it in that agreement that dictates or says that Indigenous language revitalization should be part of that education that’s already transferred? It is not reflected in that anywhere.
We hold up governments, like the British Columbia government that did put $50 million of their provincial moneys in that one province. What is happening in Alberta? What is happening in Saskatchewan? What is happening in Manitoba? What is happening in Ontario? If B.C. can do it, why can’t the other ones? This is a federal piece of legislation. It is geared toward the federal government providing those resources at that federal government level. The provinces at some point should be taken to task as well, only because, again, we have a lot of First Nations children in provincial school systems. That becomes another piece.
My understanding, though, the intention is strictly on Bill C-91 is directed at the federal government, the federal Crown. It’s directed at that level. They have that fiduciary trust obligation as the federal Crown. Again, that’s the intention of this. Not trying to let off the provincial/territorial governments, but again, that’s another separate endeavour or lobby effort to bring pressures to bear at the provincial/territorial government level. Again, I’m going to lift up the B.C. government. They didn’t have to do that but they did because they see that as an investment in people. I would encourage that kind of example to be lifted up right across Canada.
Senator Lovelace Nicholas: I brought this question up yesterday. Why is it that this bill does not have anything to say about courts, that Indigenous people either have to listen in French or English — not that I’m against French or English — but why is it that they don’t get translation?
Mr. Bellegarde: In courts?
Senator Lovelace Nicholas: Yes.
Mr. Bellegarde: Okay, so I just want to be clear on your question, senator, and I am going to ask my learned colleague to my right to maybe take that one on because he is whispering in my ear. Rather than whisper, Roger, why don’t you just answer?
Mr. Jones: Thank you, national chief. Clause 11 in Bill C-91 is intended to address that particular issue, that in instances where Indigenous people whose primary language is Indigenous end up in court or have to engage with the health care system or some other tribunal, these individuals should expect to be able to understand the proceedings in their own language, or be able to communicate with a health professional, for instance, in their own language.
That’s what clause 11 is intended to address. Now, there is a lot more work to be done in actually being able to operationalize and identify those circumstances when the translation service should be provided in the interests of respecting the rights of the individual and their right to speak in their own Indigenous language.
Senator Lovelace Nicholas: Thank you very much.
Senator McPhedran: Thank you, national chief and Mr. Jones for being with us. I want to explore a little bit more the consensus co-development principles that you’ve shared with us and ask if you could tell us a little bit more about where women fit? I don’t see any reference. I’m not repeating the question by Senator Pate.
Mine is, I think, maybe a broader question. You are astute in government. You fully appreciate the significantly greater number of families that are led by mothers than are led by fathers. You significantly appreciate the impact of language early in life. Can you share with us, even though there is really nothing here that would say we must do this, what are your thoughts and your plans on this?
Mr. Jones: I would be happy to respond. I was part of an Assembly of First Nations team that travelled across the country with respect to our engagement process. We held these meetings in various places. By far, the majority of people who participated in this process were women, the reason being they are the ones that actually do most of this work. It was obvious to us that they were critical and important players in this work as it is currently being done and will be done into the future. We certainly heard their voices.
One of the other exercises we did is a gender-based analysis. What we did in the co-development process, in some instances, was mimic what happens in the governmental process of policy or legislative development through the development of memoranda to cabinet. Of course, within that framework, you have to do a gender-based analysis.
We did that and would be happy to share that work with you, because it is important and it is obviously important to acknowledge the value and the work that women do in this area. As I said, by far, they were the ones who were the most enthusiastic about this opportunity, but also providing solid advice about what this legislation needed to say and to whom the support needed to be directed, which is them. They are the ones working in the trenches and on the ground. They said that, of course, they would expect the support to come directly to them and at that level without having to be filtered through bureaucracies or new constructs that were going to take up valuable resources which should be aimed at that level.
Senator McPhedran: I think we would be really grateful.
The Chair: It would be good to share that with the committee. If you could send that information to the clerk, that would be most appreciated.
Senator McPhedran: I have a supplementary to that. National Chief Bellegarde, I saw you kind of perk up as I was asking the question, but we have not heard from you on that and we would love to. The question was also geared to what you’re planning. Mr. Jones, you helped us understand what you’ve heard.
But now, Mr. Bellegarde and/or Mr. Jones, could I ask you to share with us how you plan to respond to the gender-based analysis and also to what you heard from so many women in the initial process?
Mr. Bellegarde: I think again, it was full involvement and inclusion. I looked at this list, and I asked: Who is on the technical committee? They are all women that helped do this work. Tracey Herbert from First Peoples’ Cultural Council from B.C.; Dorothy Thunder; Wanda Wilson; Shirley Fontaine; Paula Naponse; Rita Mestokosho; Blair Gould; Mary Jane Jim; Mary Rose Sundberg; Claudette Commanda. They are all women. There is one name that is not on here but I will really lift her up because she has been doing constant work at Kanesatake — Ellen Gabriel — with no support. That’s their commitment because they see and know the importance, so we lift them up. We need their voices, direction and energy to make sure we get it right.
We tried to rely on that in the development of Bill C-91, but really, it will be in the next phase of co-development that it will be so important for the implementation and the regulation. We always seek that balance. We will continue to keep doing that.
Senator McPhedran: In your governing structure for implementation, I want to make sure that I’m understanding the point. In the ongoing governing structure for implementation, you are firmly committed to the place at the table, as opposed to a consulting role?
Mr. Bellegarde: Exactly, no question. My mom would have something to say if it wasn’t that way.
Senator McPhedran: You would be in trouble.
Senator Christmas: Thank you, National Chief Bellegarde and Mr. Jones, for being here this evening.
National Chief Bellegarde, I appreciate your comments that Bill C-91 is not a perfect piece of legislation. One criticism of Bill C-91 is that Indigenous languages are not put on the same level as the two official languages here in Canada and that, unlike the Officials Languages Act, for instance, we are not seeking official status for Indigenous languages and we are not seeking the right to have access to services in Indigenous languages.
How do you address some of those concerns? Do you think those kinds of issues should be addressed?
Mr. Bellegarde: Everywhere I go, I get the same questions from chiefs and leaders. I answer it this way: The intention was to bring back fluency, because how can you have services in a language if it is dead, if it is not recorded or brought back? How can you do that? The intention is fluency. At some point, when the time is right, the day is right and the vibe is right in Canada, the official language recognition of Indigenous languages should be there.
I’ve said in a few places that we don’t want our languages to be in the shadow of English or French, and we’re going to get there. It is a phased approach. The intention is to bring back and revitalize so we have something in the future. If we don’t focus on fluency, what does it matter? What does it mean to have something about official language status when nobody is speaking it — when you can’t conduct ceremonies in Cree — Nêhiyawak — or Mi’kmaq?
I had the honour to go to a Haudenosaunee turning of the ashes ceremony, and there is no English in that ceremony. It’s Mohawk. I am a Cree, but I was given a big honour to go and they gifted me with a song, but I had to sing in Mohawk so I did that. We need to keep doing those things.
These points about official languages, we will get there. Services — we will get there. A phased approach, fluency. That’s why there is a great sense of urgency. June is coming and there is a fear that Royal Assent will not be achieved. I will leave it at that.
Senator Christmas: That’s a great answer. I’m glad we put that on the record.
I’m also concerned about your comments about the amendments that were tabled in the House of Commons. One of the things you mentioned was the change of the word fluency to proficiency. Maybe I missed your explanation or understanding of that change. Can you tell me why you feel that the former language — the word “fluency” — is a better term in this case?
Mr. Bellegarde: Again, I was asked this. It was a co-developed process to get it this far. The committee structure is not a co-developed committee so I didn’t have any input into the committee structure. It is not co-developed at that level. I didn’t have input to the committee members or any input into what was recommended for amendments. They just did it.
I respect that process. It’s not my process, but I can respect what they recommended. Regarding that word, though, we would prefer “fluency.” You can be proficient and you can get by, but that’s not fluency. Again, the study has shown that when you’re fluent, you know who you are and where you come from; you’re more successful in school. “Fluency” is the preferred word, in my opinion, and in the opinion of my scholarly experts around me. I agree with that. We prefer that word to be used.
Senator McCallum: Sorry I was late.
[Editor’s note: Senator McCallum spoke in Cree.]
You have a big smile. Did you hear the question I asked of Minister Rodriguez during Question Period?
Mr. Bellegarde: I’m sorry, senator, I didn’t.
Senator McCallum: I have a problem with the bill. When I look at the Inuit and the bills they have, if it’s poorly drafted we’re going to end up with a lot of problems.
I’m bringing out the concerns the people in Manitoba have. It will be the same with the Child and Family Services Act. I’m not here as Mary Jane, the individual, it’s the voice I carry because I work a lot with communities. It isn’t because I want to be difficult. I want to make certain that I’m comfortable when it comes time for me to vote. I keep tipping, and I don’t want to really rubber stamp it. I asked people in Manitoba, “If no amendments are made, are you comfortable with killing the bill?” It was quiet, which means people are rethinking — they’re always thinking.
[Editor’s note: Senator McCallum spoke in Cree.]
This is the question I asked: Under Bill C-91, the government’s only positive duty is to consult Indigenous organizations in order to meet the objective of providing adequate, sustainable and long-term funding for Indigenous languages. That may be the stated objective, but with no specific Indigenous language rights and no corresponding, positive obligations on the government to implement those rights, Bill C-91 amounts to nothing more than an aspirational policy statement. It leaves intact the government’s bureaucratic control over funding of all Indigenous language initiatives, including the trap of block funding, which forces communities to compete with each other for available dollars and pits one against the other.
On the key issue of new dollars for immersion schools, the bill is silent, speaking only about immersion programs, not schools. Yes, the new commissioner of Indigenous languages may entertain complaints about the funding provided by the Government of Canada for Indigenous languages, but the commissioner may only mediate complaints or make recommendations. Unlike the Official Languages Act, Bill C-91 provides no further access to the courts for the adjudication of language rights. Indeed, why should it? Bill C-91 does not create any language rights.
My question is: If the government is fully committed to reconciliation and endorsing the United Nations Declaration on the Rights of Indigenous Peoples, why did they not simply use that declaration as the foundation and basis of this bill? The solutions to revitalizing, protecting and promoting Indigenous languages are prescribed clearly within UNDRIP, specifically within Articles 13 and 14. Why does the government not take the first concrete step towards implementing UNDRIP by making Bill C-91 fully representative of the solution the document prescribes?
This came from the group. We’re going to be meeting with them next week — I am — and looking at this. I think if they could have a few amendments put in, they would be comfortable with it.
Minister Rodriguez said that he was open and would accept that. I’ve written back to them and they are going to send them to me. I will send it to him under my name.
These are lawyers. This is to look at making it strong and not leaving it. That’s where I’m coming from.
The Chair: Do you have a specific question that you wish Chief Bellegarde to address, or have you picked some out?
Mr. Bellegarde: No. I’ve got them.
[Editor’s note: Mr. Bellegarde spoke in Cree.]
We met with Senator Murray Sinclair earlier today. He gave me his letter. He has issues and concerns too.
That’s good. We’re making it stronger and better. From my perspective there’s a few things, but there are three pieces of legislation that we want to see done before the end of June: Bill C-91; Bill C-92 on child welfare; and then Bill C-262 on the UN declaration, the private member’s bill.
To me, collectively they fit together with what we’re trying to do, that UN declaration. Even in Bill C-91 there’s reference to the UN declaration. It’s not entirely in there but there’s reference to that.
It should be looked at as a package. In my mind, that’s what we’re trying to get done, or I’m trying to get done, before June, through lobbying, education and awareness. If it goes back and we need to make amendments to make it stronger — and I welcome them. It takes time to Ping-Pong between the two houses. I don’t want to see a Ping-Pong game between the Senate and the House of Commons. There’s a process. Use the process, but maybe do as much as you can, once it goes back quickly with the good recommendations and then comes back for a vote, so that it moves along right away and gets to a vote.
I would encourage that to make it stronger. We’d welcome that. But if there’s one rally, try to do it once. I encourage you, as senators, to do it once. Get everything as you can and make it better. That’s the intention. I’m still going to keep going on those two words, Royal Assent, because I am fearful that it might not get passed by June. I’m scared we will miss an opportunity to get something. There’s nothing now. Start with something and then keep building. That’s how I see it. That’s my approach. That’s my message.
From the legal perspective, when I looked at the bill originally — and I’m kind of a bush lawyer; I’m not a lawyer. I can quote the Royal Proclamation, the BNA Act and all those things. When I looked at it and then section 35 in 1982, the existing Aboriginal treaty rights, the debate always goes a full box of rice or an empty box. We have inherent rights as Indigenous peoples. One of the most important rights is the right to self-determination, but as well there is the right to language. I said before that this is so important to our identity as Indigenous peoples that you need those five elements. You need your own languages, lands, laws, people and your own identifiable forms of government. If you lose that one language, that right to self-determination is almost gone. How do you know you’re Mi’kmaw and that you have a right to a Mi’kmaw government, citizenship; or the Haudenosaunee, and so on? It’s vital. It’s linked to self-determination. In the existing Aboriginal treaty rights, we say inherent rights and self-determination, but section 6 references this. It’s almost like filling up that box of section 35 in that we have inherent rights, the right to self-government and self-determination, but the right to language.
The lawyers will ask me, “Is it justiciable?” By referencing section 6 and section 35 that’s a little bit of a safeguard. But how do you make it better? You can find wording and lawyers will find that. I’m just mindful of the time and the piece and a bit of a sense of urgency on it. But start with something because it may not come back.
Senator Pate: Thank you, and thank you to Senator McCallum as well, for the education, as always.
I’m curious whether during the consultations concerns about the application and whether the legislation was consistent with Jordan’s Principle was raised. If so, what are your views with respect to that, or even if not, what are your views with respect to that?
Mr. Bellegarde: Jordan’s Principle is so important. I think we all know the number of children in care. We know what happened in Jordan’s instance where there was a bickering about who should be paying for services — the federal or provincial government. In the application of Jordan’s Principle we tried to make sure that the languages are accessible to everyone, especially children.
One can make the case that having access to language development and language services and programs is key for a child’s development. If that lens is not there, it should be there. If there’s wording that’s not there, we have to look for that wording somehow to make sure it’s referenced because that’s important. That’s part of a child’s development. If these children are in care, again, access to their identity, we’re tying it in with Bill C-92 because we have a lot of First Nations who aren’t with their loving, caring family homes, with their aunties, their uncles, their grandmothers — their kohkoms — and are in non-Indigenous homes. The question is, when you talk about Jordan’s Principle, what about them? Show the accessibility. I don’t know every line in the bill off the top of my head, but if there’s no wording in that particular area, there should be some reference at some point because it’s an important principle.
Senator Pate: Did it come up in consultations that you recall as well?
Mr. Jones: Not that specific, no. It was more on the issue of accessibility in that last “whereas” clause, where it says:
And whereas there is a need to take into account the unique circumstances and needs of Indigenous elders, youth, children, persons with disabilities, women, men and gender-diverse persons and two-spirit persons;
It’s obviously trying to capture everyone and make sure everyone is in the tent. The other thing that I think needs to be factored in is the recognition or the affirmation of Indigenous language rights as constitutional rights. Of course, those are applicable to everyone to whom section 35 applies.
Senator Coyle: You spoke about the urgency related to the current state of affairs of wanting to get to Royal Assent. We hear you and we’re behind you on that.
There have been three parties involved in the co-development. One just walked in the room and one is sitting here. One of the parties is not at the same level as you are in pushing us at the same rate. The urgency may be related to different things in terms of where you are with languages versus where the Inuit are with language, and you told us about the spectrum that you’re looking at.
What’s your position with this bill in terms of moving ahead if all three parties are not accommodated in the way they would like to be?
Mr. Bellegarde: I see my colleague at the back; President Natan Obed from the ITK. He will have lots to say. We did have this joint development process going along and we’ve always said we try to support each other going along. At the same time, sometimes I have to put on my national chief’s hat on behalf of our 634 First Nations and our close to 90 nations and dialects. We see this as an opportunity. Out of those 634 First Nations, there’s one small Lakota band in southern Saskatchewan. There are not many fluent speakers in Lakota. Therefore the need to have retention and taping, digitization and then, again, to have resources to do that work and to have resources for immersion schools and our programs is vital because we don’t want to have anything left.
We support the work of ITK but at the same time there is that great sense of urgency that we don’t want to have any of our languages gone. We need that support now, not down the road. That’s why I feel that sense of urgency.
Senator Coyle: Thank you.
Senator McPhedran: Thank you, Senator Lovelace Nicholas, for encouraging this.
I want to pick up on my previous questions to you about the participation of women. I would add to that “meaning participation.” I noted your reference to Ellen Gabriel working with almost nothing. I also noted your reference about making stronger, making better. Let me ask you this, national chief: Have you set aside funds to actually pay the women for their expertise on an ongoing basis as you move to implementation? Will that be part of the budgeting for this?
Mr. Bellegarde: I would hope so. I would encourage and support that because they are the ones with the expertise.
Senator McPhedran: Thank you.
The Chair: I thank you, National Chief Bellegarde and Mr. Jones, for appearing tonight.
We are continuing our work on the pre-study of Bill C-91. The committee is pleased to welcome Mr. Natan Obed, President, Inuit Tapiriit Kanatami. Mr. Obed is joined by his political adviser, Mr. Tim Argetsinger. Thank you for taking the time to appear before us. The floor is yours and after your presentation, you will entertain questions from the senators.
Natan Obed, President, Inuit Tapiriit Kanatami: Madam Chair and to the members of the Senate Committee, thank you so much for allowing ITK to present to you this evening. This has been an interesting exercise, the co-development process and the ambition that we started with the Government of Canada to create what is now Bill C-91.
All the way through, Inuit have been very clear that we’re not interested in largely symbolic legislation. We are interested in the practical implementation of our right to use, speak, work and receive services in Inuktut, our language.
Inuit are one people sharing a common language, as I’ve said, in Inuktut. The majority of our people live in 51 communities throughout Inuit Nunangat, our homeland. Inuit Nunangat is a distinct geographic, political and cultural region that makes up nearly one third of Canada’s land mass and half of its coastline.
Inuit Nunangat is a term that we at ITK, through our board of directors, has described as the sum total of the settlement regions for the four modern treaties or comprehensive land claim agreements: Nunatsiavut, Nunavik, Nunavut and the Inuvialuit region in the Northwest Territories.
Eighty-four per cent of Inuit in Inuit Nunangat report an ability to speak Inuktut, making our language the most resilient Indigenous language in Canada. It also has the second-most language speakers in Canada, following Cree.
However, a more complex picture of our language status emerges when considering conversational ability and language of the household. Fifty-eight per cent of Inuit within Inuit Nunangat report being able to speak Inuktut well enough to conduct a conversation and only 40 per cent report that Inuktut is the language used most often at home.
Inuktut has official language status in the Northwest Territories and Nunavut. In Nunavut, the rights of Inuktut speakers are further affirmed by the Inuit Language Protection Act. Inuktut has official language status in the self-governing region of Nunatsiavut in Newfoundland and Labrador, as well.
There is no official languages status for Inuktut in Nunavik, in northern Quebec. As you can see, the patchwork of different language status amongst our homeland is perhaps more robust than other Indigenous peoples in other Indigenous languages in this country. For us sharing a homogenous geopolitical space, it falls far short of the expectations of Inuit in relation to receiving language services when we are the linguistic and absolute majority in our jurisdictions.
National legislation is needed to build on existing rights for our language and to complement initiatives advanced by territorial governments and Inuit throughout Inuit Nunangat.
ITK, therefore, recognizes the positive role national legislation can play in closing statutory and policy gaps that enable continued discrimination against Inuktut speakers. The specific nature of this discrimination and its consequential negative impacts on the day-to-day lives of Inuktut speakers are detailed in ITK’s written submission to the committee.
Bill C-91 currently falls far short of fulfilling the Government of Canada’s own commitment to develop distinctions-based legislation. It was on the basis of this commitment that ITK agreed to participate in this legislative initiative. In a joint statement released when this legislative initiative was launched on June 15, 2017, in Centre Block of the House of Commons, all parties agreed to:
. . . work collaboratively, transparently and on a distinctions basis to co-develop national First Nations, Inuit, and Métis Nation languages legislation whose content will reflect the distinct geographic, political, legislative, and cultural contexts impacting language revitalization . . . maintenance . . . and promotion.
Bill C-91, as it is currently drafted, completely overlooks the unique status of Inuktut and the practical needs of its speakers. In the absence of Inuktut-specific provisions within Bill C-91, ITK is therefore proposing amendments to the bill that would help ensure that our long-standing priorities for our language are reflected in the amended bill.
Remedying these problems has been a national Inuit priority for more than half a century. ITK was formed in 1971 in large part to advance the statutory and policy measures required to help revitalize, maintain and promote our language. These amendments are necessary to fulfil the federal government’s commitment to Indigenous peoples and all Canadians to develop distinctions-based legislation. They would ensure our people are able to enjoy the human rights and fundamental freedoms that all peoples are entitled to, including the political, economic, social, cultural and other fields of public life.
In our submission to this committee, ITK has therefore proposed amendments to Bill C-91 that would obligate the minister to develop a separate annex to this act in relation to Inuktitut. This annex would include provisions addressing the following areas, among others: The use of Inuktitut in the delivery of federal programs and services, the use of Inuktitut in the federal public service, standards to govern federal financial support for Inuktitut and specific levels of support, and measures to support the provision of Inuktitut language programs and services in relation to education, health and the administration of justice.
The amendments to Bill C-91 that we are proposing are consistent with documents and input provided by Inuit to the Minister of Canadian Heritage throughout the past two years. They are also aligned with the federal government’s own priorities, particularly in the area of access to federal services for Inuktitut speakers. Inuit face consequential linguistic barriers when it comes to accessing public services, especially within the majority Inuktitut-speaking regions of Nunavut and Nunavik. This problem is particularly acute in law enforcement, where the limited number of Inuktitut-speaking RCMP officers contributes to underreporting of violent crime and in particular family violence.
Furthermore, the Senate Standing Committee on Fisheries and Oceans reported in 2018 on the risks of public safety that exist as a result of the limited number of Inuktitut speakers within the Canadian Coast Guard. The committee has recommended that the Canadian Coast Guard recruit people who speak Inuktitut. Similar barriers are well documented within Quebec’s provincial justice system.
The federal government’s unwillingness to provide services in Inuktitut within Inuit Nunangat has even served to undermine the federal government’s ability to discharge its duty to consult and accommodate Inuit. Such was the case in 2017 when the Supreme Court of Canada ruled in favour of the Nunavut community of Clyde River and found the National Energy Board’s consultation process on seismic testing in the area flawed for, among other reasons, failing to communicate with Inuit in our primary language.
ITK urges this committee to take concrete action to address these long-standing problems by adopting the amendments we are proposing today. These proposed amendments, so necessary to the enjoyment and dignity among our people, are modest in comparison to the rights enjoyed by speakers of Canada’s two official languages both within our homeland and throughout the country. Inuit are looking to each of you to demonstrate the creativity and political courage needed to help us end the discrimination that too many Inuktitut speakers face in going about their day-to-day lives and to replace symbolism with effective and impactful federal support for efforts to strengthen and revitalize our language throughout Inuit Nunangat.
I would like to close by giving an example of why this is so important for us.
Even within our organization, the funds we receive from the federal government, especially around the productions of communications materials, have to be in the official languages of Canada. Even though the majority of our population speak Inuktut, there is no obligation for us to actually produce materials to our population in our own language. But there are obligations for us to produce them in both English and French. Therefore, even though only 10 per cent of our population speak French, we have to cater to French and English before we get to the language of the majority for our population. That’s why legislation matters. These are legislative mandates that then are passed on to all those who deliver services on behalf of the federal government or in partnership with the federal government.
We’ve been subjected to these rules so we know their importance. We know how much it can help create a reality that helps our speakers. We don’t want to pass up this opportunity to do all we can to have meaningful provisions within Bill C-91 that achieve those end goals. Nakurmiik.
The Chair: Thank you.
Senator LaBoucane-Benson: Good evening. Thank you so much for being here. The other day, we were talking about the Inuit language, Inuktitut, and how successful it is, and yet some of the challenges. One of the things we heard is that even though there is a law around Inuktitut, there are not enough Inuktitut teachers, people who can teach the language, certified teachers; therefore, it is difficult to get instruction in school. Is that correct?
Mr. Obed: There are many different capacity-related concerns to operationalizing any piece of legislation, especially in areas where you are creating a measure that fills a void in human rights. The concerns around the lack of capacity within Inuit Nunangat to deliver education, justice or government services I think are secondary to the right to have access to those services.
In working in Ottawa and seeing the lengths that the federal government public service goes to ensure that its senior bureaucrats are bilingual shows me that capacity can be overcome through resources and ambition. I accept that there are capacity issues within Inuit Nunangat, but I don’t believe that they would limit any opportunity we would have if we had the resources to implement.
Senator LaBoucane-Benson: I should just qualify. I am probably too tired and that sounded more aggressive than it meant to sound to that question. More what I was saying is there has got to be a problem with the certification of speakers. The stat that you gave is 40 per cent of your population speaks the language at home. There are speakers who could be teaching. My question is more around once this money, for example, goes to a public school system — and down South this happened to our school divisions — and then the school division would put all kinds of barriers around who could actually teach, so themosoms and kohkoms couldn’t come in and teach because they aren’t certified teachers. They create all of these barriers. The money might be there, the law might be there, but then other jurisdictions come in and create barriers.
My question is more around if we were to consider these awesome annexes that you provided, would that help with this problem of asserting your right to certify language teachers, your ability to do that kind of on-the-ground work?
Tim Argetsinger, Political Advisor, Inuit Tapiriit Kanatami: Absolutely. The role schooling plays in setting a standard for what matters and what counts as success in society, I think that’s a really important piece of any discussion around access to Inuktut language instruction within Inuit Nunangat. The challenge, unfortunately, for Inuit teach training and recruitment often turn on limited access to resources, which hinders the success of some teacher education programs.
There are bright spots in Nunatsiavut, for example. Their Inuit teacher education program has been quite successful in recent years.
In the amendments, the rationale for including a section in the annex that we are proposing being attached to the bill is that currently, just using Nunavut as an example in the territory, the Government of Nunavut’s obligations is to provide French and English language of instruction. It hinders the ability of the territory to then also ensure that the majority linguistic population has similar access to Inuktut language of instruction.
The same is true as well in Nunavik. The limited access of resources is one of the main barriers to ensuring that K-12 language instruction is even a possibility, and that links to Inuit teacher training and supports.
Senator LaBoucane-Benson: Thank you.
Senator Coyle: Thank you, Mr. President. It is good to see you again. We enjoyed your company at the Arctic Committee. It is nice to see you here on this topic. You will have heard my question to the Grand Chief.
I am very interested in how we move forward this legislation while satisfying all the codevelopers, recognizing that the codevelopers have distinct needs, wants and situations. As you describe it, you are from a more homogenous geopolitical space than some others who have been at that table with the codevelopers. I want to acknowledge that point that you made. I think others would make the same point.
We are doing a pre-study of this bill because we want to give its due attention. How are you doing with the amendments that you have put forward — not just to us, but the ministry has them; I am assuming the committee in the other place has them. Could you tell us a bit about the process and whether some elements are more acceptable than others? Is the whole package the hill to die on? You probably won’t tell us that — and I don’t blame you because you are still negotiating. I am curious as to how you are doing. Obviously, we know why you are here. We welcome it. We may need you again. Where are you in the process? What sort of response is coming out?
Mr. Obed: Going back into a history of any legislative process is sometimes folly, especially considering we can’t change the whim of any government to change course at any given time. In this particular exercise, however, I think it is very important because it is a co-development exercise — at least that’s what this government is calling this exercise. I believe that has a level of seriousness to it that we can then go back in time and say, “That’s what we expected and this is where we are.”
On July 17, 2017, Minister Joly, President Chartier, National Chief Bellegarde and I announced this legislation. It was our intention to give our officials a broad outline of what the legislative provisions would entail to create the scenario for legislative drafting.
We broadly agreed on it having a central core that would apply to all Indigenous peoples. Then there would be distinctions-based sections for Inuit, First Nations and Metis. We saw that as a compromise to wanting stand-alone Inuktut legislation, which some of our board members at the Inuit Tapiriit Kanatami had been advocating for and some still do. That process, and the willingness for us to then enter into long-term technical conversations and working groups around the development of content, was something that we had great hope for. We were also realistic about the process. However, when we brought up issues such as official language status, or service delivery, the Department of Canadian Heritage and the minister didn’t bat an eye and didn’t say that is not possible.
Here we are, today, without an Inuktut section; without any consideration for official language status of Inuktut within Inuit Nunangat; without service delivery beyond what already exists in this country in Inuit Nunangat for Inuktut speakers. Along the way, all of that ambition evaporated.
Our frustration was that we kept putting forward what we thought to be reasonable proposals. Many times we were met with silence to those proposals. When we did have conversations, a lot of the decision-making was kicked along down the road. Now we have run out of time. Now we are “in a last-minute process.” We are put in a position to support something out of fear based acceptance of the content.
We have not had any success in working with the government on the adoption of any amendments that we have proposed throughout the time from tabling to today. We’ve had many conversations with Canadian Heritage. Those are ongoing. I don’t have any positive progress to report on the government’s willingness to change the legislation from the amendments that it made from first and second reading.
Senator Coyle: Do you believe the reluctance has to do with money to pay for what this would cost? That is, the amendments as you’ve laid out here, which, as you’ve said, are part of the original intent anyway specifically to this and/or concern over, “We do for Inuit, then we must spend and commit the same for others?”
Mr. Obed: I don’t like to speculate very often. However, in many cases, we are still fighting, as Inuit, to be considered full Canadian citizens, whether it is through advocating for infrastructure in a homeland that is grossly underfunded in relation to the rest of the country; in things like marine ports, , road and air infrastructure or connectivity; within education systems or within health care systems. I think the same follows in relation to language. There is not an acceptance yet of the need to implement the existing rights that Inuit have in relation to being able to speak, use and enjoy the same protections that other Canadians have in relation to official languages for our official language.
I do hope that, in the future, that will not be the case. However, it certainly seems today that any of the concerns and worries about the exposure to funding such as the exposure to precedence; the concerns around the multitude of different Indigenous languages in this country and what that would mean if something happened for Inuktut, are all based on this premonition that we don’t deserve the same status of official language speakers. I find that disturbing. I do hope that we can take an incremental approach to changing that hard-and-fast reality. This is one of those areas that I hope can be a teaching moment as well.
What we are asking for is still not the same as what the Official Languages Act provides for official language speakers in this country. Somehow, what we are asking for is entirely unacceptable to this government in regard to Inuit, who a majority population in our homeland, who has a majority language and no federal services delivered in the majority language in our homeland.
Senator Patterson: Thank you for being here, Mr. Obed. The minister appeared before our committee and also in the Senate yesterday and said how proud he was of the co-development process. I know that Inuit were very dissatisfied with that process. I believe the term “bad faith” was used by Inuit leaders. I know that, at one point, the Inuit left the table and meetings went ahead without the Inuit.
We seem to have this insistence by the minister that this is a product of co-development. Could I drill down a bit further and ask you what went on? I know there were two ministers involved. I think things started off very well. Could you just give the committee a little more information about how things, in my view, deteriorated?
Mr. Obed: The ambition that this government had to create an Indigenous languages act was one we welcomed. The Prime Minister made that announcement at an Assembly of First Nations event and we were happy to hear it. As Inuit, we had not heard that this was going to be announced. We were happy to entertain the idea of co-development when it was proposed to us. We thought we had a central game plan or an understanding between the parties about the activities that we were undertaking, and Inuit, from the very beginning were very clear about some of the ambition that we had, which is contained within the annex. We have not deviated from that ambition since the beginning.
It would have been, I think, a better use of our time if the government had told us in the beginning that it was not considering the number of considerations that are contained in the annex and did not engage with us in multiple months of conversations about how to include these particular provisions within the drafting instructions of the bill.
I would like to ask Tim to describe further some of the processes that we undertook, and also the marks along the way where Inuit had said we’re not entirely comfortable with the steps that are being taken. We could have resolved them before the legislation was introduced.
Mr. Argetsinger: Briefly, a position paper was developed by ITK in partnership with the organizations that make up our board and was shared with the Minister of Canadian Heritage in November 2017. That document eventually evolved into a draft Inuktut bill. We decided to draft a standalone Inuktut bill because the co-development table was not getting to the point where we thought it should be at that point in time and actually starting to contemplate specific legislative content, including the structure of what a bill could eventually look like.
We shared that draft bill with the Government of Canada in August 2018. After that draft, legislative content was shared with the department. It became clear shortly thereafter, as the department sought to develop a technical discussion paper, which would loosely reflect what the bill would look like, that we were in different places.
At that point it was also articulated that, contrary to discussions we had throughout the past 14 months with the previous minister, there was not an interest in including sections that would create any new legal obligations for the Government of Canada. That was quite alarming. It was at that point that we decided it would be a more efficient and impactful use of our time to meet bilaterally with the Government of Canada and with Department of Canadian Heritage senior officials.
We never actually left the co-development process. It just became clear at that point it wasn’t going to be helpful to have those discussions at a table with other partners who didn’t necessarily have the same goals as us.
I hope that answers your question.
Senator Patterson: I would like to follow up on what Senator Coyle was asking. As you said, Mr. Obed, you’ve run out of time. I’m a critic for this bill. I got a briefing from the minister’s staff involved with this legislation. They told me that a ministerial special representative had been appointed to deal with the Inuit. They told me they were hopeful or felt it would be possible to have an agreement pursuant to sections 9 and 10. They also, as you’ve said in your submission, suggested a parallel legislative process alongside the standing committee’s review of the bill.
I want to ask you, again: How is that going? Do you have any hope that there will be something to show for these efforts before we finalize this bill? My feeling is that once the bill is passed — and we know that the AFN and the Metis support the bill and, of course, it will be important for us as a committee to respect that — it is going to be very challenging for the Inuit and the unique needs of the most vibrant Aboriginal language in the country to be addressed.
Federal government services are an issue and there is the urgent need for certification and training of teachers. Will there be results in the near future? How is that going?
Mr. Obed: Tim has been involved in the work with the special representative. I will ask him to start and then I will follow up.
Mr. Argetsinger: To add to what I said earlier, after those bilateral discussions with the department began, there were a series of meetings with the minister’s staff. Those didn’t conclude in any commitment by the department to support any of the positions that we had put forward to date. That moves us into the time that we are in right now. We are still in a place where we have no idea what the Department of Canadian Heritage is actually willing to commit to. We have heard, not necessarily from this individual, but from the department, what isn’t possible. We have never received a formal counterproposal on the way of a commitment to support any aspect of the positions we’ve shared to date, which you could characterize as a compromise.
To answer your question, I do not know. There is still the absence of clarity about what it is within the proposed amendments that the department or the minister is willing to support.
Mr. Obed: We are still in a state of ambiguity about whether anything is possible. We have not been told there have been any changes or expected changes to the legislation based on the submissions that we’ve made, both to the House of Commons standing committee and to this committee.
I would also like to speak to the term co-development and the way it has been used. If you look back at the Supreme Court ruling in relation to Clyde River and the legal definition in this country for consultation and deep consultation, there are precedents and ways in which you can define it. Co-development now seems as though it is a “he said, she said,” where if the minister says co-development happened, then it is his reputation versus the reputation of Inuit who are saying that we don’t feel that it happened.
The test in my mind is how this legislation is any different than if it would have been if we didn’t spend a moment’s worth of time on the creation of Bill C-91.
There probably would be an Indigenous language commissioner because that was an idea from 2004 in the document Towards a New Beginning. That’s been on the books for a long time. It also is part of the TRC calls to action. The government has pledged to implement those calls to action in relation to language.
Regarding the other provisions around agreements that a minister may make with Indigenous peoples and governments, you don’t need a piece of legislation to do that. The Government of Canada makes many different arrangements with Inuit land claim organizations for funding, for programs and services. It doesn’t need a piece of legislation as a vehicle to make that change.
There isn’t anything in this piece of legislation that Inuit expressly wished to co-develop with the Government of Canada other than the idea of implementing our rights in relation to Inuktut, our language. Even with something as simple as the name of the bill, we had requested it be the First Nations Inuit Metis language legislation just because of the distinct section 35 constitutional realities that invokes. Even that was too much for the government.
I’m not sure how we would even show co-development. I’m not sure there is a word in this Bill C-91 that exhibits a point that we talk through with the Government of Canada that we then explicitly created a solution for and see it as a provision in the legislation.
Senator Tannas: We’ve had a couple of times — I’ll be a tiny bit partisan with this government — where they have trumpeted their success on something, for example, with Bill S-3, where they were going to solve all gender-based issues. We’re still waiting to see if they’re going to follow through on that. But we took them through a bit of a process and we took them to task about these grand statements. It sounds to me like saying that something was co-developed and that you were a co-developer is Bologna. If there’s not a word in it that you can say, “We got that in, and we wouldn’t have if we had never shown up,” which is what I just heard you say, is almost as outrageous as the very first time we met these guys talking Bill S-3 and how they solved all the problems of the world.
I wonder if we, as a committee, can be helpful in making the lever a little bit longer for you in the time that we have left. We’re all conscious of the fact that there’s time issues here. With Bill S-3 and the cannabis bill, we hauled the minister back at the end of the process and said, “How did you make out?” In one case, I think we got satisfaction in cannabis. In the other case, we’re waiting for satisfaction but we’re not finished yet.
Would that be helpful to you, do you think, if we, perhaps, put a stake in the ground and said, “We are going to haul people back on behalf of the co-developers and find out if they finished the job with you?”
Mr. Obed: I think that any levers that the Senate of Canada can exercise to allow us to get closer to the amendments that we have put forward to you would be welcome.
In relation to co-development, we have also gone through a co-development process on Bill C-92. As you can see, it’s a very different name of the act, First Nations Inuit and Metis child Welfare Act. There are provisions in that particular piece of legislation that Inuit drafted and proposed that were adopted in their entirety within the act.
It hasn’t been that all exercises in the legislative process have led us to the same issues that we have with Bill C-91. It also makes me realize that it’s possible. I’m just not sure why it’s not possible here. Any levers that the Senate can extend on understanding why would be excellent.
Senator Tannas: Thanks for your indulgence.
It may be that all we do, like we did with Bill S-3, is get an admission that the negotiation and co-development with you is not possible in the time frame, that there needs to be a separate road, and that we would have them come back and report to us on a regular basis with a firm timeline and bake it into the bill, and so on, if we needed to, which we did with Bill S-3. That keeps the pressure up past the deadline.
Would that be an outcome that you could see would make sense?
Mr. Obed: Yes.
Senator Tannas: Thank you.
The Chair: Before we move on to Senator McPhedran, Senator Tannas, I don’t think you were being partisan. I think you were being factual and realistic by citing what the committee had heard before.
Senator McPhedran: Maybe just a teensy bit partisan.
Welcome. It’s good to see you again, President Obed and Mr. Argetsinger, your colleague with you.
I’ve done a bit of legislative drafting in my time. I’m interested by the way in which you’ve presented the annex, beginning with why you’ve chosen to position it as an annex. What is your thinking on that? I see there’s an optional quality in the wording you’ve used. I presume, but I’d love to have it clarified, that this evolved around the time when you reached a state of considerable disappointment about what was happening in the co-development process.
As I read the proposed annex, it is free-standing in a way. It’s designed to not touch what we see before us as the act. It’s designed to be placed in. It actually doesn’t dictate an outcome. It requires “must pursue” and then it also uses language like “may” and lays out very important principles for you.
Can you help us understand, from your point of view, how the annex delivers? What’s the best-case scenario that the annex would deliver for you?
Mr. Obed: I’ll start and then I’ll let Tim finish.
Based on our shared ambition and expectations in July 2017, we understood there would be, again, a communal Indigenous section of the act that would then also have First Nations, Inuit and Metis sections that would be separate from one another, based on the different core needs, considerations, hopes and ambitions within each of Canada’s three Indigenous peoples.
We also, as Tim had mentioned, drafted a separate act, a stand-alone piece of legislation that we presented to Heritage Canada.
I can’t recall the exact date, but it was then told to us that there would not be separate sections for Inuit, First Nations and Metis. That it would just be a bill with no special considerations for any one of the Indigenous peoples.
That’s when we started trying to reorganize the existing content and also the relative content to what we knew might be in the legislation that could stand as an Inuit section.
Ultimately, it became an annex because that is the terminology that the department had been suggesting was the only thing that was possible.
All the way through we’ve tried to be as flexible as possible to meet the legislative timetables, the co-drafting process, the drafting instructions, the considerations for federal legislation. It has taken a few steps and iterations along the way.
I’ll let Tim, as one of the leads, describe in more detail.
Mr. Argetsinger: The rationale for the proposal to include an annex is really a time consideration. We are being told by the minister’s staff that there simply wasn’t time to negotiate legislative content for inclusion within the bill itself. This was in mid-November. The legislative text you see in the annex was shared with the minister’s office on November 15. It was an effort to compromise and ensure that we would have the opportunity to actually ensure that our positions were reflected in the actual bill, recognizing, as articulated, the urgent timelines that the department was up against.
Senator McPhedran: I have a couple of drafting questions.
As part of your discussion, was there any discussion about the merits of this becoming a part 2 of the act as opposed to an annex?
There is another aspect of this that confuses me. Let’s say a deal gets made and the annex gets annexed. The rest of the bill is still, if I understand correctly, quite unsatisfactory for you even with the annex. If I understand correctly, it’s largely because of the way the commissioner position is described and resourced in the act itself.
The other thing I would say is to my eyes the commissioner position is actually the core of the bill. It looks like the rest of the bill is a vehicle for the commissioner position. When one looks at the actual authority of the commissioner, many of the points you’ve made about it on one hand, it says very explicitly that the commissioner is not part of the service but, on the other hand, all control of the office is still in the hands of the government.
If we think of the hypothetical of you get the annex, which has wording that is really optional anyway, where the minister must pursue, in close consultation with relevant Indigenous governing bodies, the development of a separate annex to this act in relation to, and then you lay out in the next part that it may address the following. You give a comprehensive list.
Even if you got this, what have you got?
Mr. Obed: I’ll start with the other provisions in the bill. The Indigenous languages commissioner as a concept: Inuit still are concerned that the existing process for commissioners and the appointment of commissioners still is unilaterally through a Government of Canada process. It does not implement self-determination in the way that we had hoped this act might. The concept isn’t something that we completely reject nor are there provisions in the act. It is just that the core content, the reason why we agreed to co-develop legislation was separate from these communal parts of the legislation that had been in consideration throughout the entire process.
As far as any changes to the act, we are working on behalf of our Inuit regions. We have a working group and a committee. Any Inuit positions go through that process of our board and working group. For those who might not know, it is a closed loop in many ways in regard to Inuit representation. The Inuit collective, the Inuit land claim regions, are part of our process and work with us on this.
As far as the efficacy of the proposed annex in solving the challenges that we’ve talked about, perhaps Tim can describe some of the key hopes for this particular annex in implementing our language rights in a way that the specific bill at this moment does not.
Mr. Argetsinger: Again, part of the basic rationale for the amendments we are proposing is to ensure that legislation would be utilized as a tool to ensure that existing rights and in some cases human rights are actually being implemented.
Without any obligations within the bill itself, you can see throughout that it really just leaves it open to the minister to decide. For example, if the minister wishes to enter into a bilateral agreement with a representative of Indigenous people, it is just an option. At its most basic level, the rationale for the amendments we’ve proposed is to ensure there is some degree of certainty that any legislation will actually be additive and that it will actually build on, at least in two of our jurisdictions, existing rights for Inuktut speakers.
Senator McCallum: Thank you for your presentation. I’m really sorry you’ve been put in this drastic position.
Do you have a land claims or self-government agreement?
Mr. Obed: There are four land claim agreements: the James Bay and Northern Quebec Agreement for Nunavik; the Nunavut Agreement for Nunavut; and the Labrador Inuit Land Claim Agreement in Labrador. There was a creation of the Nunatsiavut government, which is a self-government at this time and the only self-governing Inuit region. Then there is the Inuvialuit Final Agreement in the Northwest Territories. We have the combined weight of those four agreements.
Senator McCallum: When I look at clause 4, about inconsistency or conflict, it says that in the event of a conflict, including a land claim agreement, “the treaty or self-government prevails to the extent of the inconsistency or conflict.” It almost seems like you could have a way in through there.
The other one that speaks to land claims is in subclause 10(a), that they’re not preventing land claims agreements. It would almost supersede the language.
Do you know what I’m getting at? Did you discuss this with them?
Mr. Obed: The reality is the land claim agreements don’t spend much time talking about Inuktut in any of the agreements. There are certain provisions and certain land claim agreements that, in their interpretative and regulatory processes, touch on language such as some of the Nunavut agreement sections in relation to training and business development.
However, this legislation is not something that is in conflict because our land claim agreements didn’t create any new implementation of our existing language rights.
Senator McCallum: Yes, under UNDRIP. It seems like they are already violating this fact by violating your United Nations declaration towards language rights. UNDRIP is in the beginning.
Mr. Argetsinger: You mentioned UNDRIP. One curious aspect of the existing bill is that you see those references in the preamble or text, but they’re not mirrored by specific obligations in the sections of the actual bill.
Mr. Obed: An ongoing challenge in relation to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples is in relation to redress. What can an Indigenous person in Canada do if the Government of Canada does not fulfill the rights set out within the United Nations declaration?
The common conversation is around the full box of rights, now that Canada has pledged support for UNDRIP. The practical mechanism to exercise those rights and also then have redress if those rights are violated does not exist.
This legislation is a perfect example of the opportunity this government had to create that national level legislative foundation to ensure that our linguistic rights, as put out in the United Nations declaration, are upheld and implemented in this country.
Senator McCallum: It seems like your language is an official language, which puts you in a unique spot. A lot of your people retain the language right now. You’re in a perfect spot to move ahead. It’s not like we’re trying to catch up now and get our language back. You have both. We talked about us getting official status, but we can’t because the languages are really dying off. You’re in such a different spot. I guess I don’t understand what’s happening.
Mr. Obed: A good example of this is the federal government provides services in Nunavut. They have offices in Nunavut, different departments. They’re excluded from the territorial Official Languages Act and Inuit Language Protection Act. Of any government services that are provided in Nunavut, the federal government is the only level of government that does not have an obligation to provide services in Inuktut.
These are the types of loopholes we are hoping to close. That’s why we focused especially on Inuit Nunangat, a geopolitical space, our homeland. We are hoping that, over time, our homeland will be recognized in a public policy, legislative and fiscal policy context.
Senator McCallum: Thank you.
The Chair: We’re getting close to the end of our time. We have one more questioner from round one. Then we’ll go to round two with maybe two or three short questions.
Senator Christmas: Thank you, Mr. Obed, for joining us today.
I’d like to ask you a hypothetical question. Under Bill C-91, as you know, Canada recognizes Indigenous languages as Aboriginal treaty rights recognized and affirmed by section 35 of the Constitution Act. Given your testimony this evening, it’s clear that Canada is not protecting Inuktut the way the Inuit see it.
Do you think Canada will be incurring a legal liability for failing to protect Inuktitut?
Mr. Obed: That would be very situational. Just look at the lay of the land, especially in two of our jurisdictions. You have an ethnic majority, that is, Inuit with 85 per cent of the population in Nunavut. I’m not sure of the numbers in Nunavik, but it’s the majority of the population. You have government services that are being delivered, and in many cases they are not being delivered in the language of the majority. Whether this is an Indigenous language or not, there is a clear difference in Canadian citizens accessing services in the majority language of their political jurisdiction.
If you add on top of that the United Nations Declaration on the Rights of Indigenous Peoples and Canada’s support for that very foundational piece, and then you add on top of that our human rights, I think that every year that passes with our language rights not being respected and implemented, there are ways in which we can see that our rights are not being upheld. Redress may be the only course of action that we can take through legal action.
Unfortunately, in many cases, legal action is the way forward for Indigenous peoples to have our existing rights implemented. I think this was meant to be a departure from that. It’s interesting we’re here talking about the concerns that we have, when I believe that Inuit have been supportive of this initiative and open and eager to meet the Government of Canada in a space — not in our space, but in a shared space that respects our rights. The fact we haven’t been able to do that yet is disconcerting, for sure.
Senator Christmas: Thank you.
The Chair: We’ll move to second round. We’ll take another five minutes or so.
Senator LaBoucane-Benson: It’s so disappointing to hear your story and to get the full breadth of what happened in your experience. A minister sat here two days ago and passionately said, “I’ll do whatever it takes. I’m open.” This is very disappointing. I have to admit I’m at a loss to understand, with the time frame that we have, with the influence that we have, what we can do.
I will commit to whatever leverage we have, and whatever tools we have, to try to create a space where some of this work can be done in this bill, acknowledging that this sounds like it’s going to be in the next session as well. We’re going to be revisiting this issue.
There are things the Senate can do, I’m learning, even after the election. There are things that we can do as a group. I thank you. I’m very disappointed and sorry that that has been your experience. That’s all I want to say.
Senator Patterson: I’m pretty excised about the poor — I called it abysmal when the minister was at the committee — consult agents and co-development. I would like to ask you if you could give the committee a little information.
Through access to information that was provided to me, I discovered that in April 2018, a retired former employee of the Department of Justice, with extensive drafting and co-development experience with Indigenous language legislation, who was described by the department as being sought for his experience in co-developing legislation with Indigenous peoples, having a very specific and focused knowledge, and one of the services he was asked to provide was to develop and/or review proposed language to reflect agreed-upon approaches for review by all parties, and to review draft legislation produced by the Department of Justice to ensure it accurately reflects the approaches that have been agreed upon by all parties.
I’m quoting from the terms of the contract: It was a six-figure contract to Mr. J. Paul Salembier. I wonder if you could let the committee know what interface the Inuit had with this well-regarded specialist in legislation and co-development. Or maybe you can tell us now?
Mr. Argetsinger: Sure. That individual participated in a number of the co-development working group meetings, and that group consisted of ITK, AFN, MNC and the department. He was the individual who was responsible for drafting the technical discussion paper, which then became the scaffolding for Bill C-91.
Our interactions with him were limited. After the handful of meetings that we participated in where he was there, it became clear toward the end we weren’t envisioning the same outcome. It was at that time that we began meeting bilaterally with staff from the minister’s department, with the expectation that the legislative content we were developing and proposing to staff would then be communicated back to him.
I mentioned earlier that on November 15 we had shared draft legislative text for consideration by the minister’s staff. That text is almost reflected verbatim in the annex of the proposed amendments that we’ve provided to the committee.
Senator Patterson: Thank you very much.
The Chair: We’ve reached the end of our time. I would like to thank our witnesses this evening — President Natan Obed and Mr. Tim Argetsinger. Thank you for appearing before the committee.
(The committee adjourned.)