THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Wednesday, June 14, 2017
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to study the new relationship between Canada and First Nations, Inuit and Métis peoples.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or listening by 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, and I have the honour and privilege to chair the Standing Senate Committee on Aboriginal Peoples. I would now invite my fellow senators to introduce themselves, starting on my right with our deputy chair.
Senator Patterson: Good evening. Dennis Patterson from Nunavut.
Senator Doyle: Good evening, Norman Doyle from Newfoundland.
Senator Enverga: Tobias Enverga from Ontario.
Senator Tannas: Scott Tannas from Alberta.
Senator Boniface: Gwen Boniface from Ontario.
Senator Christmas: Dan Christmas from Nova Scotia.
Senator Watt: Charlie Watt from Nunavik.
The Chair: Thank you, senators. Today we continue our study on what a new relationship between the Government of Canada and First Nations, Inuit and Metis peoples of Canada could look like. We continue looking at the history of what has been studied and discussed on this topic.
Today, we will be talking about the UN Declaration on the Rights of Indigenous Peoples. We have before us Edward John, Grand Chief of Tl’azt’en Nation, by video conference; and Brenda Gunn from the University of Manitoba. We will start first with Chief John. You have the floor, Chief John.
Edward John, Grand Chief of Tl’azt’en Nation, as an individual: Thank you very much, senator.
To all senators, I am on the unceded territory of the Musqueam, Tsleil-Waututh and Squamish peoples, who some people call the Coast Salish people. With me this evening is a colleague who is a lawyer, Melissa Louie.
I have been an active member of the United Nations Permanent Forum on Indigenous Issues for a six-year period ending December 31, 2016. I come from the northern part of British Columbia, the Tl’azt’en Nation, as you indicated. I grew up on the land. The nearest town to my village is about 50 kilometres away. We hardly saw anyone other than our own people as I was growing up. I grew up in the traditions of my people and in the language of my people until I was sent to residential schools. I went to the Lejac Indian residential school near Fort Fraser. I spent many years there, along with many other children from other First Nations communities.
I was involved in the negotiations of the United Nations declaration in Geneva during the period when it finally began to develop into the instrument that we now see. There were a lot of proposals out there, but none had yet been finalized. It was a key period under the auspices of the High Commissioner of Human Rights then, Louise Arbour, formerly a judge of the Supreme Court of Canada. Under her watch, the declaration came to be.
The declaration was adopted by the Human Rights Council in Geneva. In 2006, it was transferred to the United Nations General Assembly in New York. We thought it would be dealt with that summer, in 2006, but due to complications, in particular from the African bloc of countries, it took a year for further study. Some amendments were made to the declaration before it was finally adopted on September 13, 2007.
At the Human Rights Council level in Geneva, Canada was a member of that council. Canada on voted “no,” along with Russia. Then in New York, Canada voted “no” again, along with Australia, New Zealand and the United States. Canada has the dubious distinction of being the only country in the world to have voted “no” twice.
But we are now here with the current Prime Minister, who is following the Truth and Reconciliation Commission report calling for the adoption of the declaration. When the Prime Minister decided to move forward and accepted all 94 calls to action, he said that Canada would begin by implementing the UN Declaration on the Rights of Indigenous Peoples. It is an important development that took place.
In September 2014, at the World Conference on Indigenous Peoples, there was unanimous support for the World Conference outcome document. After the vote, Canada expressed two reservations on the outcome document in relation to operating paragraphs 3 and 20.
Operating paragraph 3 deals with the need for Canada to engage with First Nations, or states to engage with indigenous peoples, where legislative or administrative measures are being contemplated, that Aboriginal peoples’ free prior and informed consent is needed where administrative or legislative measures affect them. Paragraph 20 stated that if there is development in the territories of indigenous peoples, the free, prior and informed consent of indigenous peoples is required.
In 2016, at the UN Permanent Forum on Indigenous Issues, Canada withdrew its reservations. At the end of the day, we now have a consensus document internationally, but one which is without reservations in Canada. That was an important development, namely to ensure that what people may see as technical details were dealt with.
I want to thank you for the invitation to meet with you on the work, Madam Chair, that you expressed regarding your review and report on a new relationship between Canada, First Nations, Inuit and Metis. I understand the purpose of today’s session is on the background to the UN Declaration on the Rights of Indigenous Peoples. I will give you some information as to my involvement and understanding of the declaration.
My involvement was in the negotiations and ultimately the approval of the declaration at the UN Human Rights Council in Geneva and then the adoption of the declaration at the UN General Assembly in New York on September 13, 2007. This year we mark the tenth anniversary of the declaration. The question now is: What progress has been made internationally at the United Nations level, for example, and at the state level, in particular in our case in Canada?
In this regard, I had the distinct privilege to attend Monday’s signing of a memorandum of understanding between Canada and the Assembly of First Nations on joint priorities. The Prime Minister and the national chief were the signatories to the MOU. This MOU is the third bilateral arrangement between Canada and indigenous peoples; the other two bilateral MOUs are with the Inuit and the Metis.
The Canada-AFN MOU priorities included in Schedule A to the MOU are two provisions. Provision 3 is to “work in partnership on measures to implement the United Nations Declaration on theRights of Indigenous Peoples, including co-development of a national action plan anddiscussion of proposals for a federal legislative framework on implementation;” I think that is a significant development on that front.
The second provision in the schedule is No. 6, to “work jointly to decolonize and align federal laws and policies with the United NationsDeclaration on the Rights of Indigenous Peoples and First Nations’ inherent and Treatyrights;”
The MOU sets out a process for Canada and First Nations engagement, including a permanent, ongoing cabinet-level process for First Nations leadership and members of the federal cabinet.
On behalf of the First Nations in British Columbia, I presented a detailed proposal to the Prime Minister for the review and reform of laws, policies, practices, standards and mandates dealing with First Nations self-government and First Nations lands, territories and resources. These are questions relating to Canada’s comprehensive claims policy, Canada’s self-government policy and Canada’s loans policy. This is an extensive document with some 50 recommendations on process and on substantive issues that we see need to be changed within those policy documents that I mentioned.
We expect that we will find the table soon, or somehow, to ensure that the process of negotiations that we have undertaken can move forward on a far better footing than it has following the 1991 task force report between Canada, British Columbia and First Nations, where there were extensive changes to the policies. Following that, when the federal and provincial political appointees were no longer available, it went back to Indian Affairs officials and everything reverted to the standards that were under federal comprehensive claims policies. As a result, we do not have the progress that we anticipated.
The concern we have is with the commitments to adopt the UN Declaration. Given our experience, we have a Constitution that says Aboriginal and treaty rights are hereby recognized and affirmed. We celebrated that moment under then Prime Minister Pierre Trudeau, only to find out that the policies that were not part of those public documents showed that we were back into the same old framework of denial of rights and the extinguishment of rights. We thought that we passed that hurdle back in 1982.
Now, with the adoption of the declaration, our big concern, notwithstanding this recognition and affirmation is that we do not want to be faced with the same old policies and mandates that drive Canada’s negotiators at the negotiating tables across this province. The policies and mandates have only served the interests of Canada and have not been supportive of First Nations, particularly in British Columbia.
In my capacity at the UN as an expert member of the UN Permanent Forum on Indigenous Issues, I have had to deal with indigenous leaders, non-government organizations, state leaders and UN officials, through all these many years, to have a greater and deeper understanding of the complexities that we are dealing with.
I had an opportunity to speak to both witnesses from yesterday’s hearing, Paul Joffe and Professor Dalee Sambo Dorough. I have a copy of Professor Dalee Sambo Dorough’s submission to you. I totally agree with the three main points that she raises, and I agree with her assessment and analysis, including two statements. The first is that the Senate of Canada, of which you are members, has an essential role to ensure that the government does shift away from colonialism to demonstrate respect for and recognition of indigenous human rights. Second, I agree with her conclusion that we are well past the challenge of determining content of indigenous human rights. The present challenge is their full and effective implementation in collaboration with indigenous peoples. I have also seen and reviewed the presentation of Paul Joffe and agree with the thrust and the direction that he has outlined.
In addition to the various UN treaty bodies’ mechanisms, for example the UN Committee on the Elimination of Racism, there are three specific mechanisms on indigenous peoples.
First, there is the UN Permanent Forum on Indigenous Issues, which held its sixteenth annual meeting concluding in May this year. There are sixteen expert members, eight of whom are indigenous nominated but appointed by the president of the Economic and Social Council, and eight state representatives who are elected in their respective regions. The second expert mechanism in the UN Special Rapporteur on the rights of indigenous peoples under the auspices of the Human Rights Council in Geneva, and the third mechanism is the UN Expert Mechanism on the Rights of Indigenous Peoples.
These three mechanisms have separate but complementary mandates and functions. For example, the UN Expert Mechanism has been largely mandated to conduct studies on a range of areas in education, access to justice and indigenous participation in state governments. The Special Rapporteur on the rights of indigenous peoples has a function dealing with human rights violations that may be occurring now in various parts of the world, conducting state or country visits and reporting the situation of indigenous peoples in that particular country.
In addition to the human rights norms in various UN and international instruments, for example, the Convention on the Rights of the Child or the Convention on the Elimination of All Forms of Racial Discrimination, a number of key instruments on indigenous peoples’ human rights are the UN Declaration on the Rights of Indigenous Peoples, the Organization of American states, the American Declaration on the Rights of Indigenous Peoples and the ILO Convention 169 on Indigenous and Tribal Peoples, as well as the September 2014 outcome document of the UN World Conference of Indigenous Peoples, where extensive commitments are made. Canada has not yet adopted the ILO convention 169, and the World Conference document now becomes the commitment on the implementation of the declaration.
Following the adoption of the declaration in September 2007 and following the UN and state commitments in the World Conference outcome document, UN developments for the use and inclusion of the UN declaration have included, for example — and these are guides that I am referring to. The UN Human Rights Council has established guiding principles on business and human rights in 2011 on the implementation of the UN Protect, Respect and Remedy Framework.
As well, the UN Human Rights Council has established or developed guidelines for parliamentarians and for senators for laws that are developed relevant and pertinent under the UN declaration standards. Again, the Human Rights Council has established guidelines for state human rights institutions and commissions, including the Canadian Human Rights Commission. These are all relevant and pertinent and useful instruments that have been developed.
The UN Global Compact has established a guidebook for businesses internationally on the implementation of the UN declaration standards, including, for example, free, prior and informed consent. It is an extensive review and legal analysis prepared by a law firm in New York.
The International Finance Corporation Performance Standard 7 also deals with the issue of IOC client responsibilities and, in particular, around Standard 7 dealing with free, prior and informed consent of indigenous peoples. IFC and the World Bank are financial institutions that provide resources to private companies in development all over the world and standards that industry ought to be complying with when operating and developing within the territories of indigenous peoples.
The UN, as well, has developed the system-wide action plan. It is intended to embed the UN declaration standards in UN agencies, programs and funds pursuant to operating paragraph No. 31 in the World Conference outcome document of September 2014. The system-wide action plan is to ensure a coherent approach to achieving the ends of the declaration.
The trend in including and implementing the UN declaration, the rights and the norms in that particular document, is also included in a number of multilateral documents, including the UN Sustainable Development Goals 2030, adopted in September 2015, and the UN Paris climate change agreement of December 2015.
In the state commitments, in operating paragraph 3, for example, the World Conference outcome document indicates that states affirm their support for the UN declaration and consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect indigenous peoples. Operating paragraph 8 of the outcome document also refers to the development and implementation of national action plans, strategies or other measures to achieve the ends of the declaration.
There is a key concern, though, from an indigenous perspective, and that is this notion called “rights ritualism” where, on the surface, rights are adopted and accepted, but only on the surface, with no action that follows.
Professor Sambo Dorough and I conducted a study on behalf of the UN Permanent Forum that was tabled at its fifteenth session in 2016. That document is available for reference.
That is some of the background on this. I have other comments, but I have taken a bit of time of your committee.
Coming back to the Truth and Reconciliation Commission and its report, as I said, I attended an Indian residential school for many years and only later realized the purpose of these institutions was largely in line with an assimilation strategy of Canada towards indigenous peoples. I listened carefully to the Prime Minister’s comments recently following his meeting in Rome with Pope Francis, calling for an apology from the Pope on wrongs done in Catholic Church-operated residential schools. This is consistent with call 58 of the TRC report.
The Truth and Reconciliation Commission, as a matter of its findings, came to one fundamental conclusion of cultural genocide or in some parts of the report they deal with genocide contributing to the deep, pervasive and social economic gaps and continued political and economic marginalization of indigenous peoples. The genesis of colonization assimilation, leading to cultural genocide, lies within the conceptual framework in the Doctrine of Discovery and in the underlying moral authority contained in the Catholic Church’s papal bulls in the late 1490s. This is part and parcel of the thinking required in the apology from Pope Francis, if that should come, perhaps in 2018.
There is a study that I conducted and reported to the UN Permanent Forum on the Doctrine of Discovery, which was tabled with the forum and the thirteenth session of the UN Permanent Forum on Indigenous Issues.
What does it mean for us now? In British Columbia, for example, in 1858, the Colony of British Columbia was established. On February 14, 1859, the colony’s first governor James Douglas, issued a proclamation that said that all lands in British Columbia — and mines and minerals therein — belong to the Crown in fee. There was no knowledge of this by indigenous peoples, there was no agreement with indigenous peoples, and certainly there was no consent. All lands, in our view, were taken illegally and unilaterally by Crown actions. Now, at this time in our history, we are trying to rectify this wrongful and illegal taking of all indigenous lands in what is now British Columbia. So we’re very interested in the standards set out in the declaration. We became involved at the UN because we were not seeing any progress in this country, notwithstanding Supreme Court decisions that were supportive of indigenous peoples.
Delgamuukw, for example, said Aboriginal title exists in the territory of the Gitxsan and the Wet’suwet’en people; that the Gitxsan and Wet’suwet’en people had the right to make decisions with respect to this legal right; that this legal right was a legal interest in land; and that it had an inescapable component.
Notwithstanding that, we continue to run into policies of the Crown, and mandates, that pay no attention to these legal findings by the court, so we ultimately had to take another route to the international arena, basically, to tell our story and to be participants in the development of an instrument that became a standard-setting instrument for the recognition of indigenous rights.
For example, what is not on the table in British Columbia in the land claims negotiations is the issue of compensation but, in article 28 of the declaration, you will see the reference that where lands are taken from indigenous peoples, there must be redress, including restitution of lands and resources to indigenous peoples, and where that’s not possible, there will be fair, just and equitable compensation. That issue of compensation is not on negotiating tables across this province; yet at the end of the day, First Nations are required in these documents to forego the issue of compensation, which is very wrong. It is a legally and morally reprehensible approach and conduct by the government.
Even now, Canada and British Columbia have consistently argued and taken the position that indigenous land rights were extinguished. Now, they continue to deny that these rights exist until we are able to prove them in the courts.
Finally, I wanted to say this: This trajectory of human rights standards development for indigenous peoples really began in the 1940s with the establishment of the United Nations and then with the adoption of the Universal Declaration of Human Rights in 1948. Canada’s John Humphrey was an architect of that particular instrument. Canada was then forced to start reviewing its legislation and approaches to indigenous peoples, which led to amendments to the Indian Act.
As a result, we know that the reason for the Universal Declaration of Human Rights was to deal with massive human rights violations in Germany, in particular, and in this country the massive human rights violations that the TRC concluded to be cultural genocide. It wasn’t until 2007, actually, that the United Nations finally, after 27 years of negotiations, adopted the UN Declaration on the Rights of Indigenous Peoples. The pattern has been the same. Now we’re in the process and in a time where we’re looking at reconciliation and redress.
Finding the road to justice has been very slow for our people, but our people have been extremely patient and resilient. We find our place now with the Prime Minister, where the tone at the top is very positive and constructive, but we need to see actions in this province with provincial governments. We have a unique opportunity now with a minority government, perhaps with an NDP minority government supported by the Green Party. Those two parties have made extensive commitments to adopt the UN Declaration on the Rights of Indigenous Peoples, to adopt the Truth and Reconciliation Commission calls to action and to implement with us the decision of the Supreme Court of Canada in the Tsilhqot’in case.
Let me end there. I appreciate the opportunity you have given to me and the time you’ve allowed me to speak on these issues. Following my colleague, Brenda Gunn, I’ll be open to any questions that you may have. Thank you.
The Chair: Thank you, Chief John. You gave us a very extensive history. I’m wondering if you could send your document to the clerk of the committee, because you covered a lot of material.
Mr. John: We will do that, together with the background information that I referred to. We’ll be happy to do that. Thank you, senator.
The Chair: Professor Gunn, you now have the floor.
Brenda Gunn, University of Manitoba, as an individual: Good evening, and thank you so much for the opportunity to meet with you here today to discuss the role of the UN declaration in this new relationship between Canada and indigenous peoples. I’m honoured and excited to be here. I really appreciate your attention after what I assume has been a long day for all of you.
I’d like to start by acknowledging that we’re meeting here today on the unceded traditional territory of the Algonquin people, and I thank them for their hospitality.
I am an associate professor at the U of M in the faculty of law, and I am also Metis from Manitoba. I have provided a full biography to the clerk. I’m not sure if that’s in front of you, but I’m sure it will be circulated.
My presentation today is going to draw from my most recent publication on the UN declaration, which was published in a collection that was launched here two weeks ago on implementing the UN declaration in Canada. I believe this was also sent to your offices or is currently in the mail. Hopefully, you’ll see it shortly. Finally, I will provide a copy of the speaking notes I’ll be working from. I will try my best to keep it brief, but this is something that we’re all very passionate about and can speak at length about.
I thought perhaps a starting place for my presentation might be to think about why the UN spent 30 years drafting an instrument that specifically recognizes the rights of indigenous peoples, and why, perhaps, the Truth and Reconciliation Commission used the UN declaration as this framework for reconciliation around this new relationship.
In answering that, I turn to the preamble. It tells a really compelling story. When you read the UN declaration, it starts by affirming that indigenous peoples are, in fact, peoples; that we are now, at least after 2007, recognized in the family of peoples of the world. We also have a recognition that indigenous peoples have a right to be indigenous and to be recognized for the differences that we bring. The UN declaration then goes on to say that the UN is concerned that indigenous peoples have suffered from historic injustices as a result of colonization and dispossession.
In Canada, that’s a recognition that colonization, one, occurred and, two, that it was a negative impact on indigenous peoples. This includes a recognition, in particular, that it was the dispossession of indigenous peoples from their lands that had ongoing impacts on indigenous peoples.
The preamble goes on to say that the United Nations is convinced that the recognition of indigenous peoples’ rights will enhance harmonious and cooperative relationships. This is really critical, because there’s an idea in Canada that if we recognize special rights for special people, somehow that’s going to tear us apart. But what the UN has very clearly stated is that in fact it’s the denial of rights that has led to the discord in Canada, and that if we want to fix things or reconcile, we need to do so by recognizing the rights of indigenous peoples. This will then help shift the relationship from a colonial one, where Canada has control over all aspects of indigenous peoples’ lives, to a relationship based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.
Finally, the UN solemnly proclaims the following declaration as a standard of achievement to be pursued in the spirit of partnership and mutual respect. This means that the Canadian government cannot engage in unilateral actions to implement the UN declaration, but in fact the process of implementation must again engage indigenous peoples at all stages.
I think that’s, hopefully, an important story for this committee as we go through this work on redefining the relationship; that we need to start shifting the relationship from Canada making the decision to one where indigenous peoples are actively involved. I’ll return to this point in just a minute.
I thought perhaps it might be prudent to briefly state why the UN declaration is a declaration and the legal status of the instrument. Even though a declaration is technically not directly enforceable on its own, it cannot be dismissed as non-law. The United Nations has said that a declaration is a formal and solemn instrument suitable to rare occasions when principles of great and lasting importance are being enunciated.
They went on to say that under a declaration, there’s a strong expectation that nation-states will abide by the rights set out in declarations, and we can see this particularly in the area of the UN declaration because the General Assembly did not just stop by approving the UN declaration in 2007. Chief Edward John already acknowledged the World Conference on Indigenous Peoples in 2014 where the UN went on to set out an international action plan and encouraged states to take out approaches, including a national action plan to implement the UN declaration.
So we saw, seven years after its formal adoption by the General Assembly, a recommitment by the UN General Assembly to not just have this be another piece sitting on the shelf but actually to go about and implement it.
I really do hope that in Canada, now that we have multiple statements of support both from initially the Conservative government and now our current government, that we can move beyond these debates about the status of the instrument and actually begin implementing the declaration in Canada.
What are a few key areas of the declaration that can be helpful in resetting this relationship? I think, first, an important starting point is that all rights contained within the UN declaration apply equally to indigenous men and women. This means that all provisions of the UN declaration must be read with a gendered lens. This includes a consideration of the ways in which the colonial process in Canada has had a differential impact on indigenous men and women.
The UN declaration is also really important because it recognizes that economic, social and cultural rights, areas such as language rights, education, health care, housing and economic development, are critical to the exercise of civil and political rights. There’s no hierarchy of rights under the UN declaration.
A final area that I’ll highlight is this idea of the right to participate in decision-making on the basis of free, prior and informed consent, which Chief Edward John also mentioned. It’s important to recognize that this right to participate in decision-making is found in over 20 of the articles of the UN declaration. It’s really one of the key pillars. Again, this right to participate in decision-making applies equally to indigenous men and women.
The UN Expert Mechanism on the Rights of Indigenous Peoples, in their study on the right to participate in decision-making, has provided some advice on how states can go about implementing this right, including explaining a bit of the scope of this right. It stated that the right to participate in decision-making includes the right to determine the outcome of decisions that impact indigenous peoples’ rights and not just to be involved in those processes. The EMRIP also noted that indigenous peoples have a right to participate in public affairs, including elections, but it’s not just limited to these formal public institutions but also to the participation of civil, cultural and social activities of the state.
Indigenous peoples have a right to participate in the decisions of all Canadian government bodies and agencies, so not just the formal government. I think anywhere, from border security, police, Library and Archives Canada, all of those bodies that are in any way connected to the government must be upholding the standards set out, including this right to participate in decision-making.
Finally, and importantly, the right to participate in decision- making includes the right of indigenous peoples to make decisions over their internal affairs without any external influence. Those internal matters, matters that are internal to the indigenous peoples, should not be influenced by any outside factors unless the indigenous peoples choose to be influenced in such a way.
Finally, I will add a quick note on implementation and how we start this process. I hope it goes without saying that the UN declaration and the rights contained therein apply to all constitutionally recognized Aboriginal people in Canada, so First Nations, Inuit and Metis.
Implementation requires bringing together international human rights law, indigenous peoples’ own customary law and Canadian law.
Implementation will also require work at the local level. This may require engaging beyond the large political organizations such as AFN, MNC and ITK, but actually finding ways to determine the aspirations of local indigenous peoples, the smaller communities, and working with them to see how to go about implementation.
So in conclusion, implementation is more than revisiting the Indian Act. It will necessarily require moving beyond the current scope of section 31 of the Constitution Act, 1982 and the very limited definition provided by the Canadian courts in Sparrow and subsequent cases.
It could, and I think potentially should, include some sort of legislative framework. It also requires all government agencies to review their operating policies and think about how they engage indigenous peoples.
This includes looking at general legislation and thinking about whether there is a particular way general legislation impacts indigenous peoples, because the UN declaration recognizes that implementation may require the government to take special measures to ensure that indigenous peoples’ rights are fully realized.
Thank you very much for your time and consideration. I’m happy to answer any questions.
The Chair: Thank you, professor. We’ll now start our round of questioning.
For the information of our witnesses this evening, the Senate is still sitting and there’s a remote possibility that we may be called away, so keep that in mind.
You have both done an excellent job of providing us with some wonderful background material, so the number of questions tonight may be more limited because you’ve already answered our questions before we even ask. Nonetheless, we do have a number on the list.
Senator Patterson: I would like to very much thank the witnesses. I think between the witnesses we had yesterday, with their decades of experience, and the perspective we’ve had from Chief John and Professor Gunn, we really have examined the UN declaration quite in depth.
Chief John, you know that we’re studying the new relationship between Canada, a renewed relationship between Canada and Aboriginal people. You have expressed optimism about the progress that has been made with respect to the UN declaration in recent years and even this week with the signing of the memorandum of understanding on joint priorities here in Ottawa between Canada and representatives of the First Nations.
My question is this: At the end of our study, we need to come up with recommendations for the Government of Canada on this new relationship. Did I understand, or would you say, from your testimony that we have the basis for developing a new relationship in these agreements that have been signed? You pointed out the failure in 1991, and we did have Miles Richardson give us quite a bit of depth about the efforts that were made there and the disappointment. We are now at a stage where there are promising new developments that you seem to be optimistic about. What do we recommend to ensure that this one doesn’t falter like the 1991 agreement between B.C. and Canada did? What can we learn from that that we should do differently?
Mr. John: I was involved in the 1990-91 process, along with Miles Richardson and late Chief Joe Mathias. We were appointed by the chiefs in British Columbia to sit with two representatives from Canada, Murray Kowickan from the Atlantic; Assistant Deputy Minister Audrey Stewart from Indian Affairs; and from British Columbia, the late Attorney General Allan Williams was the political appointee and the technical person was the deputy minister for what is now called the Ministry of Aboriginal Relations and Reconciliation, Tony Sheridan.
Together, over six months, we developed what is called the task force report, which outlined the process of negotiations and the substantive issues of negotiations. As I said, it began to falter because Canada reverted back to its old comprehensive claims policies and mandates that frustrated the intent of the report and recommendations and, ultimately, good faith negotiations in British Columbia.
The question here is around what is required. We need to learn a lesson in going forward that the laws, policies and mandates should not be unilaterally developed by the Crown themselves. They should be jointly developed between First Nations in our case, or indigenous peoples in the case of the Inuit and Metis as well. We need to be participants in this. Article 19 of the UN declaration, for example, is clear on that point. If you are looking at laws or administrative measures, indigenous peoples’ free, prior and informed consent is required where those administrative measures or laws are impacting on indigenous peoples. It is consistent with the commitment in operating paragraphs 3 and 20 of the World Conference outcome document.
The message simply is this: For me, yes, there is optimism. Considering what we had to deal with the last government’s mandate period over some 10 years and the inability to make progress, we find there is a level of commitment that we have heard from the Prime Minister’s Office in particular, that his relationship with indigenous peoples and Canada’s relationship with indigenous peoples is the most important one. We take heart in that.
The question here is, following the commitment, we need to see action on the ground. This is why we tabled this extensive document with the Prime Minister on Monday, which outlines what we see as our expectations. But we need a table and a process to be able to sit down and come to some joint arrangement and priorities and a process that doesn’t continue assimilation and the extinguishment or denial of rights until we can go to court to prove it.
We have 203 First Nations in British Columbia. If each and every one of our First Nations had to go to court, it would be probably close to 1,000 years before we find a solution. We can’t afford that. There is an opportunity to set the framework, and the declaration is an important framework for this very important initiative that we have with this country.
Senator Patterson: Could I ask the same question of Ms. Gunn? That will be it for me. Do you have my question?
Ms. Gunn: Yes I do, thank you. That is a good question. It is kind of a tough one; right?
Senator Patterson: It is: What would you have us recommend Canada do to make sure these promising developments that you both referred to actually take?
Ms. Gunn: I appreciate what Chief Ed John was saying. We need to see change in what the government is doing. We need to see action on the ground.
What are some things that might help that change happen, or what might need to happen? One example that I started thinking about is that there are many conversations now looking at what can be done about murdered and missing indigenous women and girls. We have the inquiry, which I have a lot of faith will provide us with some good direction, but from the information out there, what we see is that what increases the vulnerability of indigenous women and girls to be murdered or disappeared is the failure to protect economic, social and cultural rights.
In Canada, it still feels like there is a priority given to civil and political rights and that those are the justiciable rights, while economic, cultural and social issues are just mere matters of policy. I think we see a bit of shift happening in the Canadian government currently. I know, during the consultations last year on the national housing strategy, there was a session on the right to housing, but at this point in time, the Canadian Supreme Court still doesn’t seem to think that economic, social and cultural rights are justiciable under the Charter.
One of the commissioners from the Quebec Human Rights Commission said to Canada at the National Housing Strategy, “Get out of the 1970s,” and this idea that somehow civil and political rights are the important ones and the economic, social and cultural rights are just good to do because we are good, moral people. That actually leads to fundamental violations. If we aren’t going to actually ensure real protection is given to economic, social and cultural development of indigenous peoples, alongside other civil and political rights, I don’t think we will see the fail-safe in case any deal doesn’t happen or a way to access some sort of remedy if Canada fails to follow through on these promises of a new relationship. I hope that helps.
Senator Patterson: Thank you.
Senator Doyle: This question is for either Ms. Gunn or Chief John.We have been told that the main requirement to implement the UN declaration is political will. Assuming the government has the political will, which they have indicated that they do, what are some of the big public policy obstacles that could prevent that from happening? Do you see any great public policy obstacles on the horizon that could delay implementing the UN Declaration by Canada?
Ms. Gunn: That is a difficult question. I sometimes say in public speeches that I only take easy questions, but I feel that’s not an appropriate response when you are asked to testify at the Senate so I guess I have to answer the difficult questions.
Senator Doyle: Just in a general way — nothing specific.
Ms. Gunn: I don’t know if it’s a policy issue, but I sometimes see a sincere desire to have a different relationship, but there’s either an unwillingness or hesitation by the Canadian government to act differently.
A few years ago, I was able to attend UN training on peace building for resolving major conflicts and the skills needed to end apartheid, for example. In the training, they said that to end long-standing conflicts, which we suggest the current relationship between indigenous peoples and Canada represents, both sides need to start thinking differently and acting differently in order to get to a different place.
At certain levels, we see a lot of discussion about needing to do things differently, but I’m not sure if that information is flowing down to the bureaucrats or the people that work in various departments who are supposed to be implementing policies and these new directions on the ground. It seems to be the same old story happening at that level. It’s a disconnect. I don’t know how you get the people who are charged with implementing policies to take that direction or how you move that new idea from the Prime Minister and his ministers down to that implementation level.
Senator Doyle: In terms of the world, nations that are signatories to the agreement — New Zealand and Australia — how do we stack up as a nation in our treatment of indigenous people in comparison to those nations, say?
Ms. Gunn: Comparisons are always interesting, because Canada is a little better on some things and a little worse on others. I would reiterate that where Canada is really failing is on economic, social and cultural rights. While the Department of Justice says we don’t have that divide anymore, they still seem to take positions in court that suggest that economic, social and cultural rights are policy issues, not legally enforceable rights. Canada falls back there.
There are big changes happening in places like New Zealand. You may have heard recently that an agreement with the local indigenous peoples has recognized the legal personhood of a river and the personhood of mountains and that indigenous peoples are then held to be responsible or guardians over those entities. While that may be a groundbreaking idea to some people, we should also remember that we recognize corporations as legal entities.
Senator Doyle: That’s true.
Ms. Gunn: If we can have a nonexistent corporation be a legal person, a mountain shouldn’t be that hard.
This is happening in several Latin American countries. India also recently took some steps over a river, I think.
While we might be shifting from how we still view the lands, territories and resources in Canada as a primary source of economic development, other areas of the world are recognizing that we either need a healthy environment to live or that the environment has a right to exist in and of itself, regardless of our reliance upon it.
Senator Doyle: Okay. Thank you.
Mr. John: Regarding the two questions raised by Senator Doyle, indigenous peoples live largely in a world of policy. On the question of political will, as I said, the tone from the Prime Minister is a constructive tone. The question is to translate that tone into concrete action. If it stops at policy, then we are no further ahead, because the next government, whatever political stripe it may be, may have a different tone. That means we are not any further ahead than where we are now.
What we require beyond political will is the issue of action through legislation. In the MOU signed by the Prime Minister and the National Chief from the Assembly of First Nations on Monday, there is a commitment to provide a legislative framework for the implementation of the declaration. That is an important step, because legislation becomes more difficult.
Policy may not be enforceable; in some cases, good legislation may not be enforceable. For example, take section 35(1) of Canada’s Constitution. The highest law of the land says that the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. Underline the word “hereby recognized and affirmed.” Notwithstanding the constitutional recognition, policy applied at bureaucratic level says to us that we have to prove that we are indigenous peoples or Aboriginal peoples, and we have to prove the existence of our Aboriginal rights and Aboriginal title. You will never see those words in Canada’s Constitution in section 35(1).
We know, for example, in this province, when former Premier Gordon Campbell moved to establish recognition and reconciliation legislation, political will dissipated when members of his caucus, supported by the mining industry, for example, started creating a revolt against the authority of the premier who was moving in a direction we thought was the correct one. Political will is the victim of the vagaries of politics generally in the province. With indigenous peoples being a minority in terms of numbers, it creates a difficult situation for us.
We need to see justice done. Where we have seen the highest level of justice in this country has been through court cases. With the Sparrow decision in the early 1990s and the latest decision from the Supreme Court of Canada in Tsilhqot’in, we see a measure of justice, but we also know that the Supreme Court of Canada is in a new area of developing law that relates to indigenous peoples. In some ways, they haven’t figured it all out. In some cases, they seem to be lurching from pillar to post. First, there is a fiduciary relationship with the Crown with indigenous peoples that now has been replaced with the honour of the Crown. It is a moving target at the best of times.
The political will question and the matter of public policy — the obstacles are always there; they are ever-present. We have to continue the best we can to educate people.
On the question in respect of the nations of the world and how Canada stacks up, if you were comparing indigenous peoples in Canada to indigenous peoples in Guatemala, I would say we are doing better. In the Latin American countries, we see a situation where indigenous leaders who are fighting to protect their lands — fighting for the recognition of their rights — are being killed in numbers far too great to see the unacceptability.
We have a situation where we have greater numbers of our children going to school and succeeding and graduating from high school. That’s constructive. In British Columbia, in the early 1990s, we had students graduating from high school at about the 25 per cent level. We are up to 60 per cent because we organized ourselves and made strong and determined efforts that we needed to see more of our children graduate from high school.
If you take it in terms of social or economic indicators, in British Columbia, we set up high-functioning councils that are populated by indigenous peoples who have expertise in the areas of health or education or justice, with a mandate from our chiefs that we put in our best and highest educated people to change the standards that we are currently facing. We are making improvements, but we have a long way to go.
Senator Doyle: Thank you.
Senator Christmas: First of all, I just want to express my thanks for the great work that you have done, Grand Chief and Professor Gunn. I can tell that this has been many years of hard work and dedication to finally get to the point where the declaration has now been recognized by the United Nations. Here in Canada, we have a Prime Minister that has embraced it and has signed an MOU to carry it out. I just want to express my thanks, as a Mi’kmaw person in this country, for all of the great work that both of you have done.
It seems to me that that part of the struggle of defining what indigenous rights are, that work, has been completed. We have a very clear definition, I think, through the declaration, of what indigenous rights are. It is a consensus document, as Grand Chief mentioned, so this is something that indigenous peoples and Canada, our own country, have also embraced and adopted.
It seems to me that the next problem or challenge is how implement the declaration in Canada, specifically within our country. I think the problem along those lines has been clearly defined by both of you. I really liked the Grand Chief’s words of “rights ritualism,” which we suffer a great deal in Canada. We talked about the lack of political will. At one point, I think you mentioned, Grand Chief, how, back in 1991, even though you had a process clearly defined, officials within the government reverted back to their prior understanding. It seems to me that the best role that this particular committee of the Senate can play is to begin defining how the declaration can be implemented in Canada.
Grand Chief, you said specifically that what is needed is legislation. We need, in my mind, a suite of laws that will put specific objectives and processes in place on how to achieve the implementation of the declaration.
If the Senate embarked on that path of defining a draft action plan that listed a number of pieces of legislation — it may be in health, social, housing, justice, a broad range of fields — and if this committee took this current study and focused on a nation-to-nation relationship but then outlined a series of draft legislation — and I fully accept your point, Grand Chief, that it has been done jointly, but there has to be a starting point — do you think that is a fair spot to begin? Perhaps I can turn to the Grand Chief first, and then I’ll ask Professor Gun to comment.
Mr. John: Senator Christmas, I want to congratulate you on your appointment to the Senate. I think it’s well-deserved. I’m certainly looking forward to your expertise, background, knowledge and experience that you bring from an indigenous perspective, being involved with the Mi’kmaw peoples.
I agree with you that the identification and definition of the rights has largely been done, perhaps, through the UN declaration. It will help to inform our judiciary and our other arms of our government, the executive, Parliament and the Senate, in the way forward. I agree with you that the challenge is how we now implement it.
An important point that I wanted to make was that the role of the Senate in public education is critical because, if there is a lack of understanding, then it leads to either ongoing discrimination or, at best, indifference to what needs to be done.
On the question of legislation and whether it is a suite of legislation to implement the provisions of the declaration or perhaps an overarching piece of legislation, it might be both. It may be an adoption of the declaration in a broad sense, but with the implementation in specific areas.
Let me give an example. The panel on Canadian environmental assessment's report and the NEB panel report both deal extensively with how we use the declaration in the work of the environmental assessment process, the Canadian Environmental Assessment Agency or the National Energy Board and the process under there. Both of the reports make extensive recommendations with respect to that. I would say that new federal legislation on both of those pieces would allow for the implementation of the declaration within the parameters of those two mechanisms that we have in this country for environmental assessment and for the National Energy Board.
I am not sure it is an either/or situation. It may be a situation where we should be really looking at both of them. This is one of those issues that, for example, the national chief and the Assembly of First Nations executive and First Nations across this country need to tackle because, as article 18 of the declaration says, through our representative organizations or institutions, we need to be involved, with our free, prior and informed consent in legislative or administrative measures.
We helped develop the declaration. We were involved in every word in that declaration in Geneva. So it’s our declaration as well. It doesn’t belong just to Canada. But, once Canada has adopted the declaration, of course, under the Vienna Convention on the Law of Treaties, subnational governments, such as the provinces and territories, are bound by it. I don’t know that they realize that, but maybe your research at the Senate can help to understand the implications of the adoption of the declaration and what it means for the provinces and territorial governments. My own analysis and view of it is that, under that particular Vienna Convention on the Law of Treaties, provinces and territories are bound by what Canada commits to.
I would leave it at that, and I thank you for that very important question.
Senator Christmas: Thank you, Grand Chief. Professor?
Ms. Gunn: While I agree that legislation is required, my concern is always the starting point.
One of the foundational principles, as I said, of the UN declaration is that this needs to be done in partnership, and it can’t be Canada setting out an agenda and then trying to get indigenous peoples on board. That’s what we need to change.
It also means moving beyond national approaches to recognize the differences between indigenous peoples. If I think about my own home province, as I already indicated, I am Metis and a member of the Manitoba Metis Federation. We also have historic numbered treaties and we have First Nations that have not signed treaties.
When we think about implementing the UN declaration to that very tangible, practical determining traditional territories and the rights that are associated with the ability to use various rights, it’s going to be very hard to do that at the national level. At some point, Canada will have to realize that it’s complicated. While it’s easy to work with national political organizations and that broad frameworks can be developed at that level, implementation requires that local level. What Treaty 1 First Nations are looking for and what implementing the UN declaration means in Treaty 1 territory may not be the same thing for Metis people who use and occupy a similar territory.
The other thing that I think happens is sometimes indigenous peoples have always been put in a position to react, so we’ve become very reactive. I try to dream of a place where indigenous peoples are involved from that beginning point. I think we’ve started that by changing the composition of the Senate chamber and the House of Commons. We see more different faces there than we ever have before, and I think that’s a useful step.
I express a bit of concern if the Senate were to say, “Here is step 1, 2, and 3 and this is the legislation,” in that whether it’s good or not, when the process is flawed, there is a chance for indigenous peoples to react even if the substance is good. I would hope that what the Senate might produce is also a new process for how Canada engages indigenous peoples that has us sitting at the table from the beginning.
Again, I’m going to reiterate my point of the need for a gendered lens through all of this process. We need to continue to recognize, as the Senate has very much done in the last couple of weeks, that colonization has differentially impacted particularly or easily pointed to First Nations men and women. I thank the Senate for their amendment to the legislation to actually address ongoing inequality.
That may not be as practical as, “What we want you to do is step 1, 2, 3 and 4.” That’s where my head is, and it’s hard for me to think about those steps until I see indigenous peoples at tables. I don’t think it’s going to be a table. It’s going to have to be maybe a Treaty 1 table and a southern Metis table and a northern Metis table. I think you have my point here.
Senator Enverga: Thank you for joining us tonight.
I myself am very proud of all of our First Nation brothers and sisters in the Senate. I believe that they will make a loud difference for the community as a whole. I understand that with them, it is basically having the government and the nation head to head at this time. So you have great representation from your community. I’m pretty sure about that.
We’ve been discussing the United Nations Declaration on the Rights of Indigenous Peoples. Where do you think Canada is right now? Have we at least implemented a few of them? How many of those declarations have we implemented? Have you been counting? What are your expectations in, let’s say, five to ten years from now?
Ms. Gunn: One of the things that strikes me is that Canada was, I think, a first mover in the area of recognizing indigenous peoples’ rights. In 1982, when we included Aboriginal and treaty rights in the Constitution, I really think Canada was one of the first nations in the world to create such high-level recognition of rights.Unfortunately, I think that might have been the high point of this. What has happened over the last number of years is that many states have followed and then have continued to go where Canada continues to rest on “We have constitutional recognition.”
As Chief Ed John has pointed out, mostly through the courts, we have laid some pretty solid groundwork that we can build from. The duty of consultation and accommodation, as recognized by the courts, is a good starting point, but it’s not yet at the level necessary for the UN declaration. The Tsilhqot’in case on land rights is a good case and probably is close to meeting the standards, but that’s one small example. That’s not across Canada.
If Canada implements the recommendations and if we start to address that issue, Canada will be hopefully meeting the economic, social and cultural needs of indigenous women. As we look at a lot of the statistics, I think we do really struggle.
One of the ways that is easiest to start thinking about the UN declaration, particularly when we start thinking of either implementation or reflecting on what Canada has done — I work through thematic clusters and I don’t identify article by article. I’ll talk about self-government and autonomy and lands, territories and resources, economic rights, cultural rights, education and language. That’s a helpful way that we can start to do some of these reviews.
It’s hard in Canada because it’s definitely not uniform. I think there are some good examples that exist in different places where we can say, “This legislation or this agreement or this modern treaty” — I’m not sure why we call them modern and not just a treaty, but that’s probably a story for a different day — and we can say that meets. But that doesn’t apply to all indigenous peoples across Canada. So I think that’s hard.
My expectations in five to ten years? For me, the biggest indicator will be probably youth suicide rates. I feel we will be achieving what we are set out to do if our youth feel more positive about their future and feel that there are options for them in life and can see themselves as part of the fabric in Canada.
That will require supporting families. We had a conversation about the UN declaration at the Canadian Bar Association a couple of weeks ago and talked about the responsibility of implementing the UN declaration also falls to our families. These aren't just theoretical rights or rights that exist out there but are very personal and profound for many indigenous peoples. My expectation is that our families will be healthier, our communities will be healthier, and I will use the youth and the children to measure that. I do think and hope we can provide them a better future.
Mr. John: Thank you, Professor Gunn, for your remarks.
I would like to say that I agree with the fact that we have section 35 of the Constitution. Canada is one of very few countries that does recognize Aboriginal treaty rights and Aboriginal peoples in the Constitution. These are, as Professor Gunn mentioned, justiciable rights. These are legal constitutional rights that are part of the highest law of this land. It’s about the implementation of these. The problem, as I said, has been Canada has taken a position that until you can prove you exist as indigenous peoples, until you can prove that Aboriginal title exists in your territory, it is rights that don’t mean much.
They tell us, for example, that, “Well, we recognize that Aboriginal title exists in British Columbia,” but they say, “but we don’t know where it exists.” I’m thinking, what about all of British Columbia, if you don’t know where it exists? And then all of British Columbia and the territories of the First Nations are there.
The UN declaration has 46 articles. In and of itself, within the framework of the declaration, are balancing provisions. Say, for example, with article 3 and article 4, the right to self-determination, the right to self-government, there’s a question about the word “to,” whether that word should read the right “of” self-determination. There is some discussion about the word “to” in that it’s a contingent right of self-determination, whereas that the word “of” would make it that the word does exist. There’s some internal debate within the indigenous community around that.
The structure of the 46 articles largely follows this format. The first provision in a particular article might state the nature of a right. The second provision of the article would be the obligation and responsibility of the state to implement that particular right. Built into the declaration rights, the 46 articles, is that framework that if there’s a commitment to education, for example, how will that commitment be realized? It’s instructive in that way to take a look at the declaration and to understand it in that light.
One of the recommendations that the Senate may want to make is to look at an independent oversight mechanism on the implementation of the declaration. If we don’t have that, then we have no way to have governments accountable, short of going to the courts. Again, the court process has been very expensive, adversarial and time consuming for our people. Some mechanism short of a court would be instrumental. For example, the United Nations has determined that the Expert Mechanism on the Rights of Indigenous Peoples based in Geneva should have the responsibility to oversee the implementation of the declaration. Would that body now be an oversight body for the implementation in Canada?
, in January, the Foreign Affairs Minister met with the United Nations High Commissioner for Human Rights and provided the UN human rights council with an amount of $15 million for the operations of the human rights council, $5 million each over the next three years. Some of those resources could be to determine this.
I think the best option is for a made-in-Canada body that would oversee the implementation of the declaration, working with both the federal government, including the opposition, together with the provincial and territorial governments, together with indigenous peoples, for a mechanism that’s truly independent but one in which, if there are disputes, for example, how do we resolve this, short of going to a Federal Court or to the British Columbia Supreme Court?
You asked a question about the next five to ten years. We are at the tenth anniversary of the declaration, and that’s already a long period. My opinion would be taking, for example, article 28 of the declaration that talks about where lands were taken wrongfully, and there ought to be redress, including restitution and compensation. That particular right should supplant and displace federal comprehensive claims policies on this issue immediately and not have to wait until we come to some agreement on it. The declaration states a right and the obligation on the state party, in this case, Canada. Now, as we go to the negotiating table, we use that article at the negotiating table to determine how there is fair, just and equitable compensation.
Lastly, countries like Bolivia have taken the declaration and made it a part of their Constitution, the state of Bolivia’s Constitution. In Congo, Brazzaville, a country in Central Africa on the West Coast, has adopted legislation that would implement the consultation standards set out in the UN declaration. These are developing countries far ahead of where we are, and we should be cognizant of that. We’re lagging behind these developing countries in their relationship.
Lastly, I want to agree with Professor Gunn that this is not just a national process initiative, AFN or Métis National Council or ITK, for them to determine the contours and implementations of the standards and the declaration. Tables need to be set up with treaties 1 to 11. Tables need to be set up with the coalition of the 24 or 25 final agreements that have been negotiated since 1976.
There are tables, as we proposed in British Columbia and tabled with the Prime Minister a very extensive document, for those First Nations in British Columbia who are negotiating land claims, as it’s called, and self-government rights. These standards should be taken into the negotiating table.
When our negotiators go to the table now with Canada, they have no change in mandates. They come with the same old mandates. A recommendation that the Senate committee can make is to immediately begin implementing the standards in the declaration which would override the existing policies that were developed by Canada to suit its own purposes. Thank you.
Senator Tannas: Thank you very much. It’s an interesting discussion, and we haven’t gone this far with anyone else. I think it’s because we have uniquely qualified people both from a practical point of view and from a very current point of view, and you both have been very candid.
I’m sure for folks watching this, their heads are swimming with the challenges, not just what we’ve talked about here but the realities that we have as we try and figure out where to go from here.
To me, that’s a huge danger. The easiest thing we can do is talk about all of this and declare things and sign memorandums and then leave it to the same 5,000 people that have been in the way all along, who are here to protect the status quo. You just mentioned it, chief, and that is the Department of Indian Affairs, or whatever they’re called today.
We have other clear challenges. We have 600 First Nations representing somewhere around 5 per cent of the population of this country. That’s the reality. Then we have one body meant to represent 95 per cent of the population of this country. These are all depressing. We have decades of failure and division.
But there are some interesting things, and after my lengthy speech, I will get to a question. I think there are some positive things, and I think they may lead us to what we’ve just started talking about here.
Did you know that Canada was formed in meetings that took 26 days in 1864, 9 days in Charlottetown and 17 days in Quebec? We’ve set out in our study here and what we really want to try to achieve is what the guiding principles around harmony look like. We can’t know where we’re going until somebody can give us a vision of where it is. What does it look like when it’s wonderful? As it’s easiest to do, we always focus on the here and now or on the past. If we can contribute one ingredient, it will be that hopefully we can help articulate what the principles are and the vision of a perfect state. Then we have UNDRIP and the TRC and its calls to action and the realities that it helped to lay bare. We have the fundamental morals and laws of Canada that I think we all agree to. If we had all of those things as our guides, would it make sense to try to replicate Charlottetown and Quebec in some kind of nation-to-nation conference made up of representatives of Canada and indigenous peoples to try and lay down the framework in the exact same way that our founding fathers of the country did?
We’ve now had 20 or so meetings, and at every meeting I’m trying to determine how this story ends. I’m interested in that. I’m also interested in, if that was the right thing, I think it would be easy to determine who should be at the table for what I’ll call the 95 per cent, but who should be at the table and how would you see that coming together for the 5 per cent? Hopefully you’re not going to say there will be 625 delegates. How would that go? Or am I still on the wrong track and we need to keep going?
Mr. John: I think there is already a relationship in many ways, maybe not complete or perfect. The Royal Proclamation of 1763 talks about the Indian nations, with whom we are connected. That proclamation was by King George III. The Truth and Reconciliation Commission recommended a new proclamation building on the Royal Proclamation of 1763. The pre-Confederation treaties and the treaties that have been concluded with First Nations are instruments of relationship. What is the nature of these instruments? Are they mere agreements, mere contracts or something more fundamental?
When British Columbia, for example, entered into Confederation in 1871, the terms of union are constitutional in nature. They are part of the constitutional fabric, part of the highest law of this land, and yet we don’t know what the legal status of these treaties are. Are they of a constitutional nature? Are they uniquely high-level relationship instruments? In my opinion, I think they are something that are perhaps of a constitutional nature that has yet to be clearly articulated.
Where do we end up? I like the idea of this nation-to-nation conference, personally. I’m not sure how many others do. We saw what happened in Meech Lake when we were left out. It took Elijah Harper, one member of the NDP government in Manitoba, to bring that to a halt.
Then we saw the Charlottetown Accord, which was supported by the requisite number of provinces with a requisite population base, yet which was taken to a national referendum and it went down in flames largely because of the Senate. Maybe some Aboriginal issues too, who knows. We always want to blame the Senate for everything that's not working well in this country.
Let me put it this way. I agree with the comments that you make, that political commitments made at a high level are entrusted to a process that is there to protect the status quo. This is where it comes apart every single instance that I’ve seen and that I’ve been involved -- the gatekeepers, as we call them, at the Department of Justice, the Department of Indigenous and Northern Affairs, at Treasury Board and the central agencies.
The Department of Indigenous and Northern Affairs is a small department in the scheme of federal politics, and it’s not very influential, but what has brought influence to bear for that particular department is the Prime Minister’s commitment. I think it has elevated that particular department out of the doldrums of gatekeeping into something that could be more dramatic. The bureaucrats know that politicians come and go and governments come and go, and if they can just hold the fort for four years, we’ll have another government and we don’t have to do anything constructive.
I think, though, the message is getting into the departments that they need to be acting. I heard the Prime Minister say that on Monday when the memorandum was signed.
Let me give you an example. The federal Minister of Justice has said in public statements that the Attorney General is responsible for some 43,000 court cases, 10 per cent of which are indigenous. That is about 4,300 cases that our people are involved in with Canada that the Attorney General is responsible for. The liability on the books for all of the 43,000 cases is about $1 trillion. She said that 80 to 85 per cent of those are indigenous. That’s $800 billion to $850 billion. So you can understand that there will be some intransigence for those who are protecting the status quo.
What compensation do you pay to First Nations in British Columbia for all of the lands taken and for all of the resources that have been used to date, for which not a penny has been paid? That’s an incredible challenge that we have.
On the social and economic side, let me conclude with federal-provincial laws dealing with child welfare, for example, I had the very distinct opportunity to be appointed by the premier of the province, Premier Clark, who was looking for advice. How do we reform child welfare in this province, in British Columbia? I was given a whole pile of books and laws, policies and practice standards. I left them over there and went to the communities to talk to the people -- the elders, the children and the youth -- and wanted to know how they were being impacted by it.
It turns out, at the end of the day, for example, there’s a provision in the legislation that says where a child is removed, the child’s cultural heritage must be protected. So you go through the process to see where the child is placed in a non-Aboriginal foster home, which may be loving, caring and kind to the child, but who teaches that child the basic legal requirement to protect the child’s cultural heritage? How do you ensure that child’s culture is kept? How do you ensure that child’s language is learned in that foster home? The reality is that in the instrument called a care plan for the child, that has to be prepared by the social worker. The overwhelming majority of social workers are non-indigenous, so how do they include the child’s cultural heritage and language into the care plan? They can’t. Why? Because they don’t know how.
In the recommendations to the premier, it was setting out a process of what can be done, because the number of children in government care is staggering, not just in this province but across this country. If you wish, I can ensure the Senate is provided with a copy of that particular report that I think is instructive and useful. Thank you very much.
Ms. Gunn: I have interpreted your question as, “What does utopia look like?” An easy answer is provided in articles 1 and 2 of the UN declaration. Some people start with article 3 on self-determination, which feels important. But there’s a reason we started with articles 1 and 2, which are equality and non-discrimination. The Senate has taken a step to recognize that these are foundational principles that Canada says they hold to but has really failed to put into place on the ground.We have examples, and people better at numbers than me can give you all the statistics where we can see the failures.
I continue to be shocked every time Canada is reminded that had they are failing to uphold these principles of equality and non-discrimination, they find an excuse to work around it. We saw it in the Indian Act. We continue to see it in the First Nations Child and Family Caring Society case. Somehow, Canada is not complying with three orders of a human rights tribunal. How can we say we are a society that believes in equality when we can’t seem to figure it out on the ground? There is always an excuse not to do so.
I like your idea of a table, of coming together, talking and thinking of who needs to be there. I was trying to think about who I want to be there.
Senator Tannas: Who would you want to be there to create the structure?
Ms. Gunn: Me. No, I'm kidding. Please don't. To answer that question, my brain went an interesting way. I thought about who represents me in Canadian democratic institutions. As a citizen of Winnipeg, I have Manitoba senators, members of Parliament — Jim Carr is my MP — an MLA, a city counsellor and there are school board representatives.
When we look at indigenous peoples, we put a lot of pressure on one person to represent a whole lot of people. But why are there so many seats in Parliament and so many senators? It is because we recognize there are a lot of regional diversities. So it may need to be a very big table. That just might be a reality. Or it can’t be a table. I am still trying to work through this.
I’m not sure it’s fair to ask indigenous peoples to boil down representation any less than any other Canadian would expect. If in order to function in this country, we need X number of members of Parliament and a secondary house that is also representative, then why do indigenous peoples get less representation at these major institutions?
That is not the most helpful answer; I think you wanted something more pragmatic. However, we needed to break it down.
In my experience working in Manitoba — and I also do work with the Treaty Relations Commission of Manitoba — the different treaty areas in my area would expect to have representation from each of the treaties — so treaties 1, 2, 3, 4, 5 would each expect a representative — and that they would have the opportunity to select who that person is.
It’s an important question. I can’t speak for anyone more than me on it. I don’t know, but we have to ask the people. That is step one: Talk to First Nations in Manitoba. If we set up a table, who do you want? If Canada doesn’t want 600 First Nations representatives who are Indian Act chiefs, plus Metis, plus Inuit, plus non-status, plus women, plus elders and youth — if you want to have less than that, then Canada needs to find ways to provide the resources for indigenous peoples to have preparatory meetings to come together themselves.
With the process that led to the world conference, we saw funding become available for indigenous peoples to have some preparatory meetings. Indigenous peoples from around the world were able to come together to set out a few priorities in key areas they wanted out of the world conference. Maybe what needs to happen is some sort of process for indigenous peoples to have that opportunity to speak and determine who they want to represent them.
I have gotten close to answering — or danced around — some of your questions.
Senator Tannas: I apologize to colleagues for hogging the time. I appreciate your indulgence.
Senator Pate: Thank you to both of our witnesses for helpful testimony and direction.
I’d like to start with Professor Gunn to pick up on some threads, and then also the chief. You talked about the importance of looking at equality and nondiscriminatory practices, and talked in particular about indigenous women, violence, and missing and murdered indigenous women. As you know, there are high rates of victimization, impoverishment and violence experienced by indigenous women worldwide. Worldwide, they are also the fastest growing prison population. The predictors of both are similar — the racism, colonialism, et cetera.
I want to ensure that I heard you correctly, because maybe it is just what I wanted to hear. Is a way of coming at some of this by looking, in particular, at those who have been — and you mentioned children, as well — women and children who have been most marginalized, arguably victimized, criminalized and disproportionately imprisoned — a way to get at some of that? Is it possible to come at it that way? I am not suggesting in any way that it be exclusionary, but is it a way to demonstrate some success by taking youth suicide, women’s incarceration or women’s victimization and come at this issue by demonstrating a way to use the declaration, the Charter and inherent rights to alleviate those issues?
I really liked your focus on the importance of looking at how we actually enshrine in law the protections as social, economic and cultural rights, as well. Can you elaborate on that and how that utopia piece would look as well?
Ms. Gunn: Trying to determine the state of things by looking at the symptoms is helpful. For me, the symptoms of a flawed or dysfunctional relationship that may exist between indigenous peoples and Canada are, as you have indicated, over-representation at an abhorrent level that we have known about for a very long time and have not yet figured out a solution that works and the ongoing over-representation in child welfare. Those are symptoms of a deeper problem.
The solution really lies in connecting those — a right to culturally appropriate health care, a right to culturally appropriate education and a right to a house that’s healthy — both the people in it and the physical structure. Those are issues that Canada still finds a little troubling, but if we fix some of those root causes, one would hope the symptoms would also get better.
One would hope those indicators would start shifting in order to give us that sense of whether we are moving in the right direction.
Mr. John: To add to Professor Gunn’s comments regarding the realization and the truth of the marginalization, indigenous women and children are the most marginalized. I think victimization is absolutely true, both in the greater society and even in our own communities. The violence against our women is not acceptable, and steps and measures have been undertaken by our own communities. Chief Charlene Belleau at Esk’etemc, formerly known as Alkali Lake, just outside of Williams Lake, and her council have taken steps for individuals — men, in particular, and women as well — called “Commitment Sticks” where they commit to no violence against children and the women from their communities.
These are steps that some communities are undertaking. That is something that needs to be supported to ensure it is more widespread. Let me tell you why. There is an ongoing, largely ignored, undefined and unacknowledged trauma that is intergenerational, arising from residential schools. As long as we leave that and don’t deal with it, what we see now, what many people call lateral violence, will continue. There are solutions to it, however. Let me give you an example of what I mean by that.
In child welfare, for example, the children are never the problem, but the children are the ones that are removed from the home. The parents or the parent continues, but the children are moved away and placed into short-term care and, in many cases, into extended care or continued care, as you recall in British Columbia, and at the end of the day, they never come out of that place. About 65 per cent of all children in continuing care, in permanent care of the government of British Columbia, find no permanency whatsoever. They age out at 19 when they become adults from the only legal parent that they have ever known, from the Ministry of Children and Family.
What is the solution to that? The system is set up in a way that continues to support ongoing removal of children. In fact, there are legal and financial incentives to remove children from their families, from their parents. But the solution has to be in the community. Support the communities.
When a child is removed in British Columbia, they need to be brought before the court within a week to 10 days. Now the onus is on the parents, who are generally poor, have no resources and have no way to get to the nearby town and the court. The Government of Canada provides money to the government of British Columbia to hire lawyers to represent the legal interests of the director for child protection in the courts, but no one is there supporting the parents. If they are lucky, they will receive funding from the legal aid in British Columbia. If they are not lucky, they end up having to advance their own interests.
What is the solution? Provide resources to the community so that they are able to ensure that the parents are supported. When there is a necessity, a question or an issue for the parents in that particular household, if there is a household — in many cases, many families live in one particular house — how do you address it? How do you provide to a community across this province?
What they said, and what I recommend to the province of British Columbia, is that we need parenting programs for our young parents. It is simple, and it should be. There should be investment, as a matter of priority by the Government of Canada and the provinces, to ensure there is support for early child development, that period from zero to age six, because it provides the greatest opportunity for the child’s success down the road.
These are practical everyday issues that we have to deal with. We talked at a high level, at the international level with the declaration, but there are the practical realities that these high-level commitments are directed toward, which is finding solutions in all instances across this province and certainly across Canada, in supporting communities, families, extended families and parents to help develop solutions to address and deal with the number of children being removed. Because these children, as they get older, become statistics in criminal courts in this province as youth, at juvenile detention centres. And those children, as they become adults, end up with the prison populations, in provincial and federal jail systems. It continually repetitions itself.
How do we break that cycle? We need to believe in the resilience of indigenous peoples and support them in the solutions that they devise, each and every one of the communities.
I wanted to make those comments. Thank you for the question.
Senator Watt: Thank you for your presentation, both of you. I will try my best to stick with the point we are talking about now with respect to the future implementation issue of the declaration itself, but I don’t think it is only the declaration itself that we need to focus on. We need to focus on the constitutional aspects of it and on the treaty.
I am a treaty person. I think a great deal of the treaty that I helped to negotiate in the past. For that reason, I think we owe our members. There is this whole matter of new information and the fact that the government is willing to remove the obstacle, but the onus is on us. That is what I think I am hearing from the government side. If that is the case, then we owe it to our people to go back to them and allow them to assemble themselves to discuss those matters. I think that is the foremost thing we have to do, namely to agree that we have to take it back to our people.
I am trying my best as a senator to try to make that happen this coming fall. I did have a meeting with some of our leaders and some of the politicians. I am trying to encourage them to look at it in that way.
As the chief indicated, we have been at the constitutional table. We have also been at the Charlottetown and Meech Lake table in the past. We all know what happened and why things did not move forward. It was a question of whether we should move in the direction of defining our constitutional rights. That was an area that made a lot of Aboriginal leaders — First Nation and Metis and Inuit — become nervous, that is, not being able to come forward with the areas that need to be defined.
If you go through defining and talking about using a legislative instrument of the government, which we have no control over because they are the ones that deal with the legislation, and if we don’t try to make an attempt to balance the way the matter will be dealt with, it will definitely be on the government side all the way through. I think we all know that.
On that account, we owe it to our people to allow them to discuss the matters — not only the present leaders that we have today but the leaders there were present at the time when the Constitution came forward. That’s very important. If we could come up with recommendations as a committee, start with the idea of bringing the people together. That is the First Nations, the Metis and the Inuit.
We have done that in the past. Without having a task force at the time leading up to 1982, we would not have constitutional rights today. One of the reasons why that was successful at that time is that we were able to put the task force together quickly. That happened quickly because we were under the gun. The government was under the gun; we were under the gun. The pressure was on both sides of the instrument.
What worries me is that moving in the direction of valuing the legislative avenue is a good way, and I do not disagree with that, but we have to be part of it. How do we become part of that legislation? We don’t have the necessary instruments of our own to challenge the piece of legislation that will come from the Government of Canada. If there is a dispute between the two, do we have a mechanism in place to deal with a dispute between the two societies or nations?
When you are a treaty person, you are, in a sense, within the Government of Canada, but at the same time, the recognition of your special rights is contemplated within the treaty which is also supported by section 35, and not only what has already been accorded but also the future that could fall under section 35 of the Constitution Act, 1982.
Knowing those factors, I think we need to bring the people that have negotiated this, have dealt with this before, together with the present leaders we have today. I have made an attempt to contact all those people because I worked with them in the past, and they are inclined to become part of it again because this is the way to go. This is exactly what they are telling me.
As a senator, as an individual Inuk person, to collect all those names, I have to hire someone and to see if they are in agreement with the idea of getting together and having in-depth discussions on the question of treaties, constitutional rights and the declaration. We have instruments now that we never had before. It’s an opportunity, but can we speak with one voice? That is one of our biggest enemies. As Aboriginal people, we have a tendency to shoot ourselves in the foot when we are not organized. That is very important.
If we go in that direction, I think we can achieve, and we can come close to the point of unifying. I believe in unity amongst the First Nations, Inuit and Metis. If you don’t have unity, they will tear you apart. Whether or not you like it, that is the way the system runs. Whether we like it or not, we have to think about those things.
I believe that people want to have their own community recognized as a nation. But I am also hearing now — this is new information that is starting to spark around the country — the First Nations are saying our community is not a nation. When we are together, we are a nation. If that is the case, we need to find a solution to bring the people together, first. After it is resolved, we might want to look at bringing all the people together as much as possible — not mixing the Metis, Inuit and First Nations, but looking at the way the Constitution is structured today. That is how it has to flow.
I would like to get an opinion from you. You sound like my granddaughter, who talks to me every day. She talks exactly like you. She has no problem criticizing me because I am the grandfather and I am living with her. In fact, I brought her down here to get a bit more knowledge about what is going on. She is in Ottawa today.
Chief, do we move in that direction? I would like to hear your thoughts and have your input, as well as yours, Ms. Gunn.
Mr. John: From 1983, 1982, 1981 and the First Ministers Conferences from 1983 to 1987, the initial ones convened under the former Trudeau Prime Minister, Pierre Elliot Trudeau, as you know, his history started with the white paper that would do away with indigenous status. But with the Calder case, he changed his views to, “Yes, you have more rights than we thought.” They established a policy. Subsequently in 1982, his government was instrumental in ensuring that section 35 was added to the Constitution of Canada. There are 17 words in section 35(1), but those are 17 important, critical words with which we have been able to open the door. That is the one provision that we have made use of in negotiations and in the courts.
I want to say at the outset that I have always been impressed by the Inuit leadership, including yours at the time when you were a member of the Inuit leadership. I found the Inuit leadership to be practical, proactive and a constructive force for change. I remember my dear friend Zebedee saying in a meeting, “We need to do constructive damage to the status quo.”
Senator Watt: Exactly.
Mr. John: That was true. I always remind him every time I see him and he brings out his accordion.
We need to collectively understand the historical thread that we are dealing with. It is not just you in Nunavut who is a treaty person. Every non-Aborignal in Nunavut are treaty people too. They need to understand that, because your people signed a treaty that also has implications for the non-Aboriginal peoples I am talking about.
We need to realize that we are in a unique historical moment now. We now have international standards that have fundamentally changed and altered the relationship between states, including Canada in our case, and indigenous peoples globally, the 370 million indigenous peoples around the world. They are now in this important, unique place for a constructive and positive change in relationships. Many indigenous people globally have been fighting hard to protect their lands, territories and resources against destructive forces, whatever those may be, while at the same time looking at sustainable development that would ensure their livelihood continues.
The principle of free, prior and informed consent is an important idea because, if you take a look at the declaration, it is in at least 20 of the articles. That idea of consultation means that we must consult within our peoples as well because we need to get their consent, at the end of the day, for going forward. Gone are the days when we can be dictators in our own communities — not that we ever were because our approach to governance has been decidedly different.
There is an important item that you referenced, and that is the relationship between the UN declaration, the 46 articles in the declaration, and section 35(1). I think the important perspective for that is that the articles in the declaration should inform how section 35 is considered and interpreted politically and legally through the judiciary, through the courts.
The saying “let justice be done though the heavens may fall” is an important sentiment to realize that if we really want to see justice be done, then we will have to move heaven and earth to get it done. That really means going back to the question of political will, a high level of political will on the part of our peoples but also the state parties — the federal government and provincial governments.)
Senator Watt, you’ve always had my undivided attention in the work that you’ve done, and the words that you’ve said over the years have been very constructive. So I want to thank you for that.
Ms. Gunn: I really appreciate your comments and the idea of the stronger voice that indigenous peoples can bring and that, the more unified, the more likely it is to be heard.
I have done some work in the past with some First Nations leaders and elders, trying to find a process to work towards identifying that unified voice. This was based on the training that I got at the UN that I referred to on peace building.
One of the things that I really have learnt is that, if we want to bring a unified voice, there really has to be space for every voice to be heard and to really feel like they’ve been heard.
Two, you need to move people off of their positions. People who have been working on this all have our positions on various issues. How do we move people off of those positions, maybe looking for the underlying interests that motivate that position? Maybe if we identify underlying interests, we can then find common interests. One that we were able to find in this work was protection of culture, protection of community and really trying to provide the best future for our kids that we can. So where can we find those spaces?
While I truly believe that and think that needs to happen, I also want to make sure that we are putting reasonable expectation on our communities. I have yet to hear Canada speak with one voice. Sometimes we elect someone who we say has the right to speak for Canada, but we all know that that person has always been subject to criticism, and rightly so. This is part of democracy, that we have that ability to speak and voice opinions and dissenting opinions.
I really hope that there is space for indigenous peoples to come together to provide that unified voice, without forcing agreement on issues where there just may not be. I think that’s fair. There’s a lot of diversity. We shouldn’t be forced, but where there is agreement, I think that’s a great starting point for these sorts of conversations, for the table that was spoken of.
Also, it helps to remind indigenous peoples that our traditional laws had ways of dealing with conflict, and those may be useful in working through some of these processes. I thinkProfessor Rob Innes’s work that has looked at the Iron Alliance and the ways in which Metis people and other First Nations in southern Saskatchewan worked together is a really helpful reminder for, at least, me, from the Prairies, where we see, often, this belief that First Nations and Metis people are in opposition and that our rights conflict, to remind us that, actually, there were moments in time where we aligned with First Nations and that we had that community and familial relationship, that kinship network with First Nations.
To move beyond the diversity of voices will require space, and space that is without pressure or expectations. I do really appreciate your idea, and I hope that there are more opportunities for local communities to speak and have their voices heard. I do appreciate that the committee brought in some youth elders — was that last week? — to speak. I think that was an amazing opportunity for them.
The Chair: We’re very short of time, Senator Watt.
Senator Watt: If I’m going to make the point, then I have to include other things that complete the point, if you don’t mind. Very short.
The Chair: Very short.
Senator Watt: I just wanted to let you know that I am also dealing with the youth on a daily basis pretty well. Those are the majority of our people today in the Arctic, so they are very important. They are very much engaged in this idea of getting together.
The other thing that I wanted to mention is the word “existing” within the constitution that was put in by Lougheed, when he was the premier of Alberta. That’s one area that probably has created a lot of misinterpretations of what the constitutional rights are, because he talks about “existing.” What does that “existing” mean? It could mean legally only or existing as a person that exists. That can be interpreted whichever way. So that was put in there on purpose.
Senator Brazeau: Professor Gunn and Grand Chief John, thank you for being with us this evening and participating in this process.
You both talk about political will and the political will of this current Prime Minister in dealing with indigenous issues and reconciliation. With this political will, obviously, the expectations are very high. By having high expectations, it either creates a great opportunity or the potential for great disappointment at the same time.
What I’m about to say, I really don’t like to say because I still consider myself a young man, but, for the last 20 years or so, I’ve dealt with a lot of former Indian Affairs ministers. At the start of their mandate, the political will of these individuals was always high and great. What they’ve all told me, from that experience, is that there was a great barrier called the Department of Aboriginal Affairs, or Indian Affairs, at that time. These are ministers of different political stripes and colours. The political will was there, but you had that department, that big brown building on the Gatineau side.
I’d like to know if you would support and recommend the potential elimination and abolishment of the Department of Aboriginal Affairs. I’ll even go further. I guess this is my personal view, but I find it very degrading that, in 2017, we have either a man or a woman representing indigenous peoples in this country that has so much power and influence and control over the lives of indigenous peoples. I’ll go further in asking: Would you also support and recommend the elimination of the minister of Aboriginal Affairs in this country?
Ms. Gunn: I think it is probably appropriate for the chief to start.
Mr. John: That minister is responsible for Metis, too, from what I gather.
The question of political will is absolutely right. Let me reference Senator Watt’s comment around the word “existing.” Premier Lougheed and the then-premier of British Columbia, Bennett, were collaborators on that particular word when it was clear that Prime Minister Trudeau would reinsert section 35 when it was rejected and taken out all together. Under tremendous political leadership of indigenous peoples across Canada, that particular provision was reinserted, but it was their bright idea, from their constitutional advisers, to add the word “existing” to mean this: In British Columbia, those rights don’t exist anymore because they’ve been extinguished. Of course, the Supreme Court of Canada, in the very important case on section 35(1), Sparrow, said, “No, the provinces and the governments and their advisers were wrong on this front.” The court defined “existing” to mean something completely different than those politicians had thought it should mean.
I agree that expectations are high, and there could be great opportunities or massive failures. Of course, the test of that is always, as they say, the proof is in the pudding and in the actions that we see. I agree; we always have high expectations, especially when the tone, in this case, at the top, with the Prime Minister, is very supportive and constructive. How do we realize, in this moment and in this time and in these opportunities, that we make substantial progress? Changing the status quo is something that’s difficult. Change always is hard to achieve.
Where it’s possible is in what Senator Watt talked about. It was possible, in making amendments 35(3) and (4), when the Inuit and the Metis and the First Nations leadership, together with the national women’s association, were able to come together and have those two amendments: the application of the constitutional and Aboriginal and treaty rights equally to Aboriginal men and women, and that the final land claims agreements, which the late Billy Diamond advocated for, are also treaties. I think those were the two amendments that were realized.
I dealt with those same ministers over the areas, going all the way back to Chrétien, when he was a Minister of Indian Affairs. That was when I was a very young man. Sometimes we have to generate that political will. It doesn’t happen on its own. This present Prime Minister, Trudeau, has created a tremendous amount of goodwill, I think, but it’s been tarnished, and in some ways, as we’ve heard from many of our First Nations communities in British Columbia relating to the Site C dam, for example, or the approval of the Kinder Morgan project, there are hidden trysts on either side of it by First Nations, some who are supportive and some are opposed.
On the question of the Department of Indian Affairs, when we get rid of the Indian Act, we’ll have gotten rid of the Department of Indian Affairs. Many ministers over the years have said to us, “I’m going to be the last minister of Indian Affairs,” yet we still continue to have these ministers.
Somehow, we need to establish a presence at the national level, not through paternalistic legislation and not through a paternalistic department, but through some mechanism that allows for full and proper engagement of indigenous peoples at the national level. It should completely replace that approach to really managing our expectations to the lowest level possible to meet their own expectations and somehow suggesting that it is in our best interests. It’s been a wrong approach from day one.
I don’t really have a problem in ensuring that we are responsible for our well-being and for our dignity. As article 43 of the declaration talks about, the rights in the declaration are for the minimum standards for the survival of indigenous peoples, as indigenous peoples, and for their dignity and well-being. As we’re sitting here, indigenous languages are on the verge of extinction in this country. We need support in this country for ensuring that our languages continue to survive and thrive in this period.
Ms. Gunn: I know it’s been a long day and I’ll try to be brief. I think, at least as the department and minister exist now, I really question whether they are able to uphold the rights and the principles within the declaration.I think they are entrenched in positions and ways of being and doing. Trying to think about how to get that department to be different would be challenging. I’m not saying it can’t be done.
I do think that there needs to be some mechanism, whether it’s a government minister, likeGlobal Affairs. We have people in charge of our international relations, and it might need to be a similar position.
I was thinking about all the different name changes the department has gone through and this funny, “We’re back to INAC but it means a different INAC.” We need more than a name change. It has to be a change in operations.
I envision that there might still be a department that’s in charge of relations and maintaining, building and developing those, but it cannot continue to be a department that exercises control over indigenous peoples. That’s the fundamental shift that the UN declaration drives us to move beyond. Thank you.
The Chair: That’s the end of our questioning. On behalf of the committee I would like to thank our witnesses tonight. Grand Chief Edward John and Professor Brenda Gunn, you gave us some very valuable information and recommendations.
I thank the honourable senators. It’s late in the evening, and you were all very attentive and asked all very good questions.
I have one quick comment: I would like to note that Bill S-3, which we dealt with very recently, will be undergoing clause-by-clause consideration in the House of Commons committee tomorrow morning at 8:45. To all of you viewers out there in web land, tune in to see what happens there.
(The committee adjourned.)