THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Tuesday, May 28, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-91, An Act respecting Indigenous languages; and Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, met this day at 8 a.m. to give consideration to the bills.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television or listening via the web. I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unceded lands of the Algonquin peoples. My name is Lillian Dyck, from Saskatchewan, and I have the honour and privilege of chairing this committee. Today, we begin our meeting by examining Bill C-91, An Act respecting Indigenous languages. Before we start, I would like to invite my fellow senators to introduce themselves, starting on my right.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Patterson: Dennis Patterson, Nunavut.
Senator Tannas: Scott Tannas, Alberta.
Senator Oh: Victor Oh, Ontario.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba region.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Francis: Brian Francis, Prince Edward Island.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Christmas: Dan Christmas, Nova Scotia.
The Chair: Thank you, senators.
I would like to welcome again to the committee the Honourable Pablo Rodriguez, P.C., M.P, Minister of Canadian Heritage and Multiculturalism. Joining the minister is Hélène Laurendeau, Deputy Minister; and Stephen Gagnon, Federal Representative, Indigenous Languages Legislation, Citizenship, Heritage and Regions Sector. Thank you for taking the time to meet with us this morning. I understand the minister will be offering opening remarks and officials will assist in answering questions.
Just for the information of the committee, there is a clause-by-clause analysis available, but we’re not here this morning for that purpose. That will be available on the committee portal.
Minister Rodriguez, you have the floor.
Hon. Pablo Rodriguez, P.C., M.P, Minister of Canadian Heritage and Multiculturalism: Thank you very much, Madam Chair, committee members, representatives of the First Nations, Inuit and Metis people. Thank you for inviting me again to speak about Bill C-91, An Act respecting Indigenous languages. I would also like to acknowledge that we are gathering on the traditional territory of the Algonquin Anishinabe.
I’m joined by Hélène Laurendeau, Deputy Minister; and Stephen Gagnon, Federal Representative, Indigenous Languages Legislation, Citizenship, Heritage and Regions Sector, at Canadian Heritage.
First of all, I’d like to say a big thank you for turning around your report so quickly. Your hard work on this bill underscores its importance and urgency. It’s fair to say that we all agree that the revitalization and maintenance of Indigenous languages are critical to the well-being of Indigenous communities, critical to the future of their children, so I’m here once again to ask you to support this bill.
This bill is a key element of the work we’re doing across government to advance reconciliation. Clean drinking water, quality post-secondary education and strong family and community ties are fundamental building blocks for a good life. I would add that knowing your own language is definitely part of that.
It also bears repeating that a great deal of determination, energy and wisdom have gone into this bill. It’s the result of years of engagement with Indigenous people across this land, and there is widespread support for the legislation. As you have seen, there is nearly unanimous support in the House of Commons for it.
That said, I’m aware of the concerns raised in your report. I want to put those concerns to rest, particularly with regard to Inuit. I’d like us to take a step back to focus on what’s important. This is a good bill. It’s a good tool for the reclamation, revitalization, maintenance and strengthening of Indigenous languages.
Though I unreservedly accept the criticism that this is an imperfect bill, I will maintain this is a very good bill, one that cannot be stalled given the fragile state of Indigenous languages. We will keep improving it right through its implementation, and even after, to ensure that it serves the people it’s meant to serve.
In my remarks, I want to take this committee through some of the steps we’ve taken to address concerns regarding the bill.
First, I’d like to talk about collaborative development. This bill was designed with and for Indigenous peoples. It applies to all Indigenous languages and peoples — First Nations, Inuit and Metis. It respects the distinctiveness of each Indigenous group and language because what’s going to work for Cree isn’t necessarily going to work for Haida or Inuktitut. This bill also seeks to support Indigenous peoples while respecting the right to self-determination. In this spirit, this bill is a call for consultation. All partners will need to be able to be at the table to develop and implement the regulations of this legislation.
However, we also recognize that the bill is a starting point and will evolve as needed. This evolution will happen through things like the commissioner’s annual report, which is set out in the bill. The report will examine the use and vitality of Indigenous languages; Indigenous language needs; the effectiveness of the funding provided by the Government of Canada; and the implementation of the act.
On the subject of funding, unlike many bills, Bill C-91 includes references to adequate, stable and long-term funding. It recognizes that Indigenous peoples are best placed to define their needs and find solutions that work for them. It means money can go directly to Indigenous communities, regional and national Indigenous organizations and Indigenous governments, and we can also have tripartite agreements that will involve provinces and territories.
As I have already said, our consultations on the Indigenous languages act will not stop at Royal Assent. We will work with these groups to clearly define funding mechanisms that make sense for their circumstances and needs because, in many cases, stability is key.
I agree with this committee that year-to-year project funding can put a lot of smaller Indigenous organizations in precarious positions. Yes, it’s very difficult for schools to hire teachers when they don’t have the funding to plan for the future. It’s not good for the kids, either. That is why the multi-year agreement in proposed sections 8 to 10 offer flexible funding mechanisms.
What matters is that the funding should go to those who play a key role in the transmission of language. An example would be organizations where women and elders lead initiatives, as suggested in your report.
Finally, I’d like to speak to the concerns in your report on access to federal services in Indigenous languages, particularly for the Inuit, because language service is really important. As you quoted in your report, it can make the difference between life and death.
Over the past year, my department and I went on a listening tour across the country. We were doing research for our new anti-racism strategy. I have to say that the Iqaluit session was extremely moving. At one point, an elderly woman stood up to speak and, through an interpreter, she told us that even when she’s sick, she’s not comfortable going to the clinic or the hospital. She doesn’t go because the doctors there don’t speak Inuktitut. That is not acceptable. It’s not right. People deserve to be healthy. They deserve to get the care they need, and we need to do something about that.
I know Senator Sinclair and Senator Patterson are having conversations about languages of service. I’m looking forward to hearing what they have to say. Our government is very open to ideas for improvements.
Since my last appearance before this committee, we’ve been doing everything we can to listen and to make changes where possible. Our special representative, Tom Isaac, met regularly with the regional organizations. My parliamentary secretary Gary Anandasangaree, who is here with us today, has had a number of discussions with senators as well, and I’ve had a lot of robust, honest and sincere conversations with the regional Inuit associations.
Recently, I was on the phone with NTI President Aluki Kotierk to discuss various provisions of the bill. She has been extremely instrumental in this entire process. She’s taught me a lot about the unique challenges that the Inuit face every day, and I have a great deal of respect for her. Even though we don’t see eye to eye on every part of the bill, we will keep working together. You have my word on that.
Madam Chair, the passage of Bill C-91 is a unique opportunity to make a major difference for Indigenous peoples. We must continue our efforts to pass it. We should also usher in a new era in the relationship between Canada and Indigenous peoples, a relationship based on the recognition of rights, respect, trust, collaboration and partnership. It’s great and understandable to want to create the perfect act, especially when the issue is so urgent and crucial. However, sometimes, the best is the enemy of the good.
However, sometimes it’s better to have an act that can be perfected and that has been developed with the people concerned than to have no act at all. As Senator Sinclair put it so eloquently in his speech, if we don’t have Indigenous language legislation:
. . . the state of Indigenous languages will become more vulnerable than they currently are. We cannot and should not allow that to happen. . . . if the preservation of Indigenous languages does not become a priority for us in this chamber, then what the residential schools failed to accomplish will come about through a process of systemic neglect.
We cannot be complicit in this systemic neglect. Right now, we have this window of opportunity to help uplift Indigenous communities and to improve the lives of generations of Indigenous children. We cannot miss this chance. Now is the time for Indigenous languages legislation. Now is the time to do the right thing. Now is the time to work together to pass this bill.
Thank you for listening. I’m ready to take your questions.
The Chair: Thank you, Minister Rodriguez. The floor is now open to questions from senators.
Senator Patterson: Mr. Minister, thank you for being here and coming back. It’s much appreciated.
I’ve got to challenge you on your continued assertion that the bill was designed with and for Aboriginal peoples and that you’ve been engaging with the Inuit. I know you had a phone call with President Kotierk in which she told you that funding for training teachers would not address concerns about the language of the bill. I also know that Special Representative Tom Isaac has not met with the Inuit since you last appeared before the committee — not a phone call, not a communication of any kind. So I have to say that I think the consultation with the Inuit has been severely wanting.
President Kotierk wrote to the committee on May 14 and told the committee that, “Unfortunately, I’m obliged and very much disappointed to report to you that despite the passage of time since my appearance in early April, NTI has not been contacted to that end.” That was about incorporating Inuit concerns into this proposed legislation. I’m very concerned about that.
Could you tell me why representative Isaac has not spoken to the Inuit once since you last appeared? He’s your special representative. He’s a well-respected person. I guess those are my first concerns that I’d like you to address.
Mr. Rodriguez: Thank you for the question, senator.
He met many times and then gave his report. He had finished his work. That’s why he didn’t meet with them again. I did. I went to Iqaluit since I’ve been here. My officials are in contact with President Kotierk’s officials on a regular basis. I also had to take time to consult with my colleagues and to consult with cabinet. This is what we have done. The contact remains. As you mentioned, I spoke with President Kotierk two weeks ago, and I think we had a very good conversation about the training of teachers, which is a priority for her and for us also — in fact, for all Inuit. I hope we’re able to move forward together on this.
Senator Patterson: Thank you for your reference to the important question of government services in Aboriginal languages “where numbers warrant.” That’s the wording in the Official Languages Act. I’m pleased to hear that you’re aware of that issue and, hopefully, open to amendments.
There are other issues in the bill that the Inuit had raised that I’d like to ask you about specifically. One of them is clause 7, a better definition of “adequate, sustainable and long-term funding.” There are proposals to strengthen that clause and provide more certainty about the meaning of that clause.
There was also a concern raised before this committee about the mandate of the federal Indigenous language commissioner duplicating and conflicting with mandates of Indigenous languages commissioners in the Northwest Territories, Nunavut and Nunavik. There was a suggestion that the bill should be amended so as to require collaboration and cooperation and avoid duplication of those services.
Are you open to amendments on those issues?
Mr. Rodriguez: It is up to the committee to decide.
What we put in this place is quite rare, if I’m not mistaken. To say right away in the bill that we will provide adequate, sustainable and long-term funding ties our hands. This is exactly what we wanted, to have our hands tied and to be committed to the funding.
As you know, since then, we received $335 million in the budget for five years for the funding of this, so we are going from a situation where there was no bill and some money to a situation where we would have a bill to strengthen Indigenous languages and $335 million over five years and then $117 million every year after that. So I think this does what it’s supposed to do.
I agree with you, senator, that we have to avoid duplication. We’re concerned about that. We’re sensitive to that issue. The objective is not to duplicate it and to have a small, flexible office of the commissioner that will tell us if we’re doing the right thing or not and how we can improve the delivery of service that we’re delivering. At the end of the day, that’s what we want: the right service to be delivered in the right place, in the right way, by Indigenous people and not by us.
Senator Patterson: Thank you.
Senator Coyle: Thank you, minister, for being with us and for your update since we last spoke. I can see there’s some movement that has occurred in the meantime.
Like Senator Patterson and, I think, many of my colleagues around the table, we are still very concerned about the situation of the Inuktitut language and the Inuit people of Canada. It is a very distinct situation.
We hear quite regularly that this is a very good bill, that we cannot achieve perfection, so let’s be satisfied and move forward. I agree with what Senator Sinclair said in his speech at second reading on Bill C-91, that this is urgent, and we cannot pass up an opportunity right now to move forward with a bill that supports Indigenous languages for the Indigenous people in Canada.
However, I am wondering what is going on right now to engage with the Inuit leadership. You’ve talked about the regional organizations. You’ve spoken about ITK. You’ve spoken about President Kotierk as well.
I’m imagining one of the issues is the cost. Have you done an actual costing of the human and financial resources that would be required to deliver federal services in Inuktitut? If so, can you let us know where you are on that?
Also just generally, what are the concrete next steps? I don’t come from the Arctic, but I’m very concerned about this issue. I’m on the Arctic Committee as well as this committee. Senator Patterson and I are the two who share those two committees. I’ve probably heard ten times as much through that committee as what we’ve heard here on this issue, and I’m not satisfied yet. I’m wondering what you can do to help us do our job as a committee now and give us a sense of where you are in those discussions and how far you are going and are willing to go.
Mr. Rodriguez: Thank you for the question, senator.
We absolutely understand the differences in the regions and, particularly, the situation in the North. As I mentioned, I had the chance to go there for two days. It was a transformative experience, I have to say. Through our meetings and our visit, I was able to sit down and speak with Inuit who suffer from the lack of services. I was also able to see concrete examples of things that have been done to teach and transmit languages, which is formidable. It’s extraordinary. Our job as a government is to support that.
As I mentioned in my speech, we definitely understand the importance of language of service, and we’re open to discussions on that. We’ve had discussions in the past, and I understand there have been discussions here among senators and maybe amendments. It’s up to you to decide where you go. We have to see where we, as the government, can go. We definitely understand the importance.
I have to mention that we’ve never stopped discussing. The initial conversations about the bill were held two years ago. I think there were 40 or 50 sessions every two weeks. Then there was tabling of the bill and more discussions with Inuit representatives. We have regular forums, such as the ICPC, where I was with the Prime Minister a couple of weeks ago, where there were all the representatives. We have our officials who meet on a regular basis, and, of course, you have the direct relationship between the minister and the leader. Through that, we’re trying to move forward.
As I said before, if we have a bill, we can build on that. If we have no bill, there’s nothing to improve. We’re moving as far as we can at the moment. As I mentioned, the discussions will not stop at Royal Assent. They will keep going because we can always improve it, and we want to improve it.
Senator Coyle: On the costing issue?
Mr. Rodriguez: The costing will depend on what access to services means and which services are included in that. We cannot cost it at this moment because it depends on the scope of what we’re talking about.
Senator Coyle: Thank you.
Senator Christmas: Good morning, Mr. Minister. My question is specifically about the annex that the Inuit had advanced. Could you tell me what the status of the annex is in terms of the federal government’s position to it? I get the sense that there are some challenges there. Could you elaborate on the federal government’s position in regard to that annex?
Senator Patterson: Good question.
Mr. Rodriguez: Thank you for the question.
The annex was the start of a new series of conversations a long time ago. Then the conversations evolved. We explained why it was difficult to move ahead with portions of that and where we could consider others. That’s when we mandated Mr. Isaac to go to Iqaluit to meet with the representatives. Following that, we had discussions with other Inuit leaders. I also went to cabinet.
The path has to be feasible and possible for the government. We will never promise something that we cannot deliver or say, “Yes, we’ll consider this,” knowing that we can’t. We’ll never do that.
We know that we can maybe make headway in terms of language of service. In some circumstances, it may be possible. Where it’s more difficult, for example, is the definition of the Nunangat territory, because that would be in a bill. I don’t think an Indigenous languages bill is the right vehicle to start defining territories like the Nunangat. There could be other territories required, because we have to remember that whatever applies to one group in the bill applies to everybody. So it’s very important to understand that if we agree on something for the Inuit, the same goes for all the First Nations and the Metis. The opposite is also true. It’s a bill that applies to everyone in a fair way. We can have, of course, distinct agreements included in the different sections of the bill. Again, that is the section where I’m less comfortable, because it would be an Indigenous languages act that would be a vehicle to define specific territories, and we don’t think it’s the right vehicle.
Senator Christmas: Thank you for that. One of the positions from the federal government is this concept that if you apply certain things to one group, the principle of fairness then requires you to apply that to other groups. It struck me that one of the key provisions of the annex was the implementation of education in Inuktitut. It also goes on to say implementation of health services and implementation of justice so you have basic services for Inuit people where, I understand, the majority of individuals in those regions speak Inuktitut.
One of the key differences I see is you have Inuktitut being a majority language and English and French being minority languages. That situation is different from other parts of Canada. I’m a First Nation person, and I can tell you Mi’kmaq in Nova Scotia is definitely a minority language, unlike Inuktitut in the North.
When you apply the principle of fairness, I wonder if special consideration should be given to the North where Inuktitut is the majority language and whether or not the federal government can take steps to work out unique arrangements that the majority language there would translate into services that are provided to those individuals in Inuktitut.
Mr. Rodriguez: Thank you, senator. I agree with you on the unique situation. This is why we kept the discussion going. The door was still open and is still open today and will be open tomorrow. This is why we’re ready to analyze and work on the possibility of access to languages of services. In some cases, it will be elements that are not of our own jurisdiction. It could be provincial jurisdiction — for example, health — so you can also have tripartite agreements.
When I say that what applies to one applies to others, it’s as if the others want it too; right? We’re not forcing anything. So if we have something specific we agree on with the Inuit, then the First Nations and the Metis can decide if they want it too or don’t want it. It’s up to each of them.
We also have to be conscious that whatever is negotiated and agreed with one group can apply to everyone. We have to live with that specific context.
Senator Christmas: Thank you.
Senator McPhedran: Minister, thank you for being back and bringing such knowledgeable officials with you.
My question is building on the previous question, in a sense. In your remarks to us this morning, you mention the NTI president, President Kotierk. Can you tell us about consultations you have had with other leaders — for example, from ITK or for the Government of Nunavut?
And you made some reference to possibly accepting amendments. Can you tell us whether you have a consensus package of amendments dealing with the languages in the North?
Mr. Rodriguez: Thank you, senator, for the questions.
We have had, since the beginning, many meetings and formal and non-formal consultations with all leaders, but more specifically the Inuit. We took different opportunities to meet. For example, we were in New York at the United Nations, so we took the opportunity to meet with President Kotierk and President Obed. As I mentioned, I went to Iqaluit, and we had meetings there with different leaders. We, of course, have the ICPC formal meeting involving the Prime Minister, ministers and all the leadership from the different Inuit groups. Our officials are in conversation on a regular basis, and they keep us informed about that.
This has been going on all the time because it’s fundamental that we keep talking, and there are direct channels. As I mentioned, after the bill was tabled, we kept discussions alive. We are open, for example, to amendments on access to languages of service because we understand the importance of that. Those are the things we are considering, depending on what the committee also decides, because you are master of your own destiny. I know you will be discussing amendments.
The same thing happened in the House of Commons Standing Committee on National Heritage. There were many amendment put forward, and many of them were accepted by the committee. This is the bill that came to you after, which included the amendments.
Of course, it has to be feasible for the Government of Canada. It has to be in our own jurisdiction. Sometimes we would like to intervene everywhere, if we can do something on the health part or this and that, but we have to be humble enough to understand that we cannot do everything everywhere. But sometimes we can sign tripartite agreements with the provinces to intervene in some of the sectors that are under their jurisdiction. This is what this bill allows us. It allows us to have direct bilateral agreements with groups and also tripartite agreements. The most important thing is how we deliver the service required on the ground.
A lot of our discussions with President Kotierk were about preparing teachers or training people that can transmit the language, because that’s the key thing. That’s what we want through this bill, and we are working on that.
Senator McPhedran: Just as a point of clarification — thank you for the receptiveness to amendments that may come from this committee — may I ask if you have any concerns about this bill dying on the Order Paper, given the tight schedule that both houses of Parliament are facing?
Mr. Rodriguez: I hope it doesn’t. We may agree or disagree on parts of the bill, but I think we all share the opinion that it’s such an important bill that it has to pass. Is it a perfect bill? As I said, no, it’s not. Can we make it better? Absolutely. But if it doesn’t pass, we have nothing to work with. Thank you.
Senator Doyle: Minister, in looking at the amount of funding in the budget for supporting Indigenous languages, $333 million over a five-year period, if we take that number and divide it by 260,000 Indigenous language speakers, that amounts to about $256 per year per speaker if you spread it equally between the strong languages and the dying languages. Is that adequate and sustainable funding, in your opinion?
Mr. Rodriguez: We think it’s adequate to start. We’ll have to see. One of the jobs that the commissioner has to do is to check where the different languages are, how many people speak the language and the best way to intervene, so we can gather more precise information on many things, including the funding. We think it’s a good amount to start with. We have to remember after that, it’s $117 million every year. We may realize that we may need more money at that time. That would be one of the recommendations from the commissioner. Also, it will depend on the projects we receive from the different groups and regions. We think $333 million over five years is — and that’s also what we were told by the First Nations, the Metis and many people across the country.
Senator Doyle: Would not strengthening the language in the bill add certainty and better instruction to future governments, to specifically have it outlined in the bill that more money is needed and maybe to lay out the amount of money that you think is needed?
Mr. Rodriguez: I didn’t hear the question.
Senator Doyle: In clause 7, you outline the amount of money that is available over a five-year period. Would it not be reasonable for next year’s and subsequent years’ funding to be outlined clearly and put in legislation so that cancelling or reducing it would require a future government to take the political risk of doing that?
Mr. Rodriguez: Cancelling any funding comes with a political risk. But again, there is some work that has to be done initially by the commissioner and different groups that will allow us to better understand the needs. For example, it doesn’t have to be $335 million divided in five years; we can start with a smaller amount. We start off with the office of commissioners. We have projects here and there, for example, on training teachers — which is fundamental, in my opinion — and could require maybe $50 million or $60 million the first year. Maybe then we go up to $150 million the second year, depending on the needs. But as we start to move forward, it will inform us of what are the more precise needs and if more money has to be included in this extremely important project.
Senator Doyle: Thank you.
Senator McCallum: Thank you for your presentations and for coming back to look at this bill.
I have concerns, as you know, about this bill as well. I was interested in your comment. You said that sometimes the best is the enemy of the good, which I did not understand.
I want to look at the role of the provinces now. I notice that with this 8 and 9, the reference to provincial government has been removed. What is the role of the provinces in this language bill?
Mr. Rodriguez: It depends if it’s in a sector of provincial jurisdiction. If it’s not, we act directly because the bill allows us to do that. That’s what we want. For example, this allows us to start discussing right away — which we’re doing — with President Kotierk about a project she has on training teachers. This bill, when it’s passed, gives a mechanism to sit down and fund projects that are transformational and absolutely key to revitalize the languages. In some other cases, if it’s something that is within a provincial jurisdiction, then we would have to sit down — and we would sit down, for example, with a province and territory, and the group that leads the project on the ground, and sign an agreement on that.
For that, you need flexibility, and this bill gives you that flexibility. It was absolutely key to have it because we’re not the one doing the job. Honestly, the tough job is the people on the ground that have it. We draft the bill, we go get the money, we put it in place and we sit down with the people that know best what is good for the people — for the children, for the grandchildren, for the next generations — to learn and keep the language. This bill allows us to work with those people. That’s what we want.
Senator McCallum: I’m from Manitoba, and I went to Isaac Brock to look at their immersion program. They were having a difficult time with the province. How will you guarantee that the province will respect what you just said and that they will move away? Do you need the school to write to you and ask to work with your office or —
Mr. Rodriguez: I cannot guarantee that a province will do what we want because we don’t control what they do, but at the end of the day, if a specific group has a specific request to save the language in some case where there are not a lot of people left and it’s urgent to act and we say, “Okay, we’re with you on this” and the province says no, there are consequences for them to have it. But a lot of what we do is and probably most of what we will be doing will be through direct agreements based on the sections that allow it in the bill.
We are already receiving ideas. There are ideas floating — a lot of the stuff people want to do on the ground and have been going around the country discussing with people. What you see are rooted projects by groups that have been doing this or have a passion about saving and preserving the languages. Through the bill and with the money in the budget, we can sit down, agree with them, transfer the money and they do what is right.
Senator McCallum: I can’t see how it would work if the province has the control of who is going to be teaching in the classroom, because that’s the problem. As I had previously said, when I learned my Cree, my mom taught it to me. She didn’t have a degree. There are so many elders and people who are fluent in their language and who want to go and teach, but they are prevented by the province. So I did not understand what you just said.
Mr. Rodriguez: Okay. If we go specifically through the education system, then we have to sit down with the province, because then it tells what will be in the courses and taught in each class. We sit down with them, and we agree with them. I think we can agree with them.
In other cases, you have groups, and I have seen some in the West and in the North that are not necessarily formal school or certified teacher, but you don’t need that to teach the language. You can have people who are taught by groups dedicated to this. They’ve master the language, they understand it, they can write it and they can just transmit to others. Elders will do a lot of that.
Senator Sinclair: My question is actually more in the form of a comment than perhaps a request for reaction. I acknowledge that I’m sponsoring this bill for the government in the Senate, and I continue to look for opportunities to enhance it. We have heard the expression from government representatives that this is a good first step and an important first step, but the most I will say is that it’s a first step. It’s not as good as it could have been, and I think we need to acknowledge that. We could have done better.
One of the concerns I have always had about this legislation, just so you know — and I’ll repeat it here, although I have written to you about this, minister — is that this bill does not give and does not acknowledge the enforceability of the right to language on the part of individuals. As a result, with the kind of situation that Senator McCallum referred to where there are groups of students who want to learn the language, they have no way of compelling provinces to require that the language of instruction be provided.
As well, the legislation doesn’t really acknowledge the important role that existing language speakers, such as elders and parents of children who can speak the language fluently, can have in instructing not only their own children in their homes but also other children in the school. I suspect, frankly, that’s one of the reasons why, in Nunavut, we have heard that there is a serious loss of use of the language among young people. The educational system in Nunavut insists that only certified teachers can work in the schools with children as teachers. We should be acknowledging that grandmothers, grandfathers, aunties and uncles are the first language teachers in every child’s life; therefore, their role in continuing to be teachers should be expanded. As a result, we’re losing a tremendous resource when we turn over the educational role in the area of language to non-speakers who don’t understand the nuance of language and don’t use it on a regular basis in a conversational way. The situation in Ontario where Indigenous language courses are being offered by people who cannot speak the language is not a successful program, no matter how you look at it. It’s an effort to try to recognize that the education system has an obligation, but it doesn’t work. What works is when you bring those language speakers into the classroom, recognize that they have a role to play and give them that role. This legislation doesn’t recognize the importance of that sufficiently.
Having said all of that, though, it’s a first step. The important thing we have to do is get through the door or knock down the door. This legislation does that, which is what I’m going to suggest may be one of the amendments that might come forward is that the legislation current calls for a five-year review. In five years, a child needing to learn the language, particularly young children, can double in age and not be able to speak the language, and it gets harder and harder the older you get. So I’m going to suggest that one of the changes we might look at seriously is an earlier review than five years, or a shorter review period than five years. I wonder if you might have a view with respect to having shorter review periods than the five years currently called for in the legislation or in the proposed bill?
Mr. Rodriguez: Thank you for the question.
Would you be considering something like two years or three years?
Senator Sinclair: I’m thinking of something like three years.
Mr. Rodriguez: I think it’s a good idea. It’s up to you to decide. But it’s something definitely that I would be ready to consider and probably accept. Of course, it is up to you. Maybe it’s the right thing to do at the beginning. I don’t know if we need to have it every three years after that. Perhaps, yes. Maybe the first experience will tell us that’s the right thing to do, so we keep it. Or maybe we decide for the first three years, six years, then we move on. But I think it’s a very good idea.
Senator Sinclair: Thank you.
Senator Coyle: I’m still not quite satisfied on the issue of this legislation matching not just the demands but the rights and the aspirations of the Inuit people of Canada. As I understand from your response to a number of us, the annex that was proposed related to this, from your perspective, is currently off the table —
Mr. Rodriguez: It was transformed in a lot of conversations. That was the initial document a very long time ago. It was transformed through conversations, and then there was Mr. Isaac that went, and so we’re elsewhere in terms of conversation.
Senator Coyle: That’s from the Canadian Heritage perspective. It’s also from the perspective as of the proponents of that annex. Is that what you’re telling us?
Mr. Rodriguez: Yes, we understand that we are elsewhere.
Senator Coyle: I want to be sure on that.
We talk a lot about distinctions-based. This is a clear case. To me, it’s so clear. We know that the Inuit are the majority population, that Inuktitut is the majority language and that this is a language that is very much alive. But it was so much more alive 20 years ago than it is today, and it’s losing ground very quickly.
Given all of those factors, I don’t think we should be giving in or giving up and saying we have to get this done and we have to just get it done now. I agree that we have to get it done now, but to me, there has to be some opening. I believe you are expressing that there are, not just post the passage of this legislation in those ongoing consultations. We understand there is going to be a lot going on post-legislation. And not just in deals related to — I don’t diminish the importance of teacher training — the absolute fundamental principle that the Inuit people have asked us to really consider. We want to make sure that fundamental principle of the distinctiveness of that situation can be reflected in this legislation. Can you speak to that?
Mr. Rodriguez: Absolutely. Thank you for the question.
We understand the distinctiveness. That is why we are also open to discuss, and maybe to some amendments on access to services. The only thing I was saying is that it has to be feasible for the Government of Canada. If we accept something, it’s because we can, in our own jurisdiction, because we have the power and the capacity to do it. If not, it doesn’t mean anything.
Senator Coyle: It has to be under federal jurisdiction; it can’t be provincial.
Mr. Rodriguez: Exactly. We have to be able to deliver. If not, then you raise hope on something that you can deliver, and we will not do that.
Senator Coyle: I understand.
Mr. Rodriguez: The distinctiveness of the Inuit can be reflected on an amendment such as this one. They can be used by others if they want or not, depending. But it can also be used with the type of projects we said and the agreements we mentioned.
I agree with President Kotierk that training people to train others is fundamental. I strongly believe in those parallel groups that exist. We’ll do whatever we can through the education system, and I think the provinces will understand that they should get into it. But Senator Sinclair also mentioned the elders. I was in a group where many elders were there, teaching and transmitting the language on a voluntary basis, meaning that whoever wanted to come would come. It was a weekly meeting, and it was all the same people coming, different ages, learning the language, and some made extraordinary progress to that. I’m a strong believer in those groups. I’m a strong believer in forming the people that will transform the world, that will transform the reality of the others that want to learn the language.
I think that through access to services, if we have an amendment that we can implement and, through this bill, allow us to put in place very important agreements, not small projects but transformational projects, then I think we can get there and do the right things for the Inuit people.
Senator Coyle: We look forward to working with you on that.
The Chair: Thank you very much. We have run out of time. On behalf of the committee, I would like to thank Minister Rodriguez.
We will now start our study of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
The committee is pleased to welcome this morning, from the Department of Justice, Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio; Koren Marriott, Legal Counsel; from Crown-Indigenous Relations and Northern Affairs Canada, Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government Sector; and Ross Pattee, Assistant Deputy Minister, Implementation Sector. Thank you all for taking the time to meet with us this morning. We will begin with opening remarks from Laurie Sargent to be followed by Mr. Wild.
Senator Patterson: Point of order, Madam Chair.
The Chair: Yes.
Senator Patterson: Thank you, Madam Chair. I understand that the steering committee was not able to reach agreement on a work plan for the study of this very important bill. I understood that this matter of a work plan, witnesses and meetings, would be put to the committee since the steering committee was not able to reach agreement on a plan to move forward: the number of meetings, the number of witnesses and the subject matter of the meetings. Could we have a discussion about the work plan going forward before we start this work?
The Chair: I think you have been misinformed. We do have an agreement on the work plan. The clerk has minutes of the meeting where we agreed to four meetings. We agreed to the number of witnesses. We have the witness list already laid out. So what you’re saying is not correct.
Senator Tannas: Thank you, senator. Yes, as a participant, we had a tentative agreement with respect to four meetings that required consent of the Senate, or least of the whips. My understanding is we do not have it. From my point of view, I don’t think we have an agreement. We’re in the wind at the moment.
The Chair: It’s true that we do require agreements to move forward. We did make an agreement, and we certainly did make an agreement for these first two meetings. These first two meetings are not in question. Therefore, I suggest we move ahead with the presentations this morning because everybody has agreed to that.
Senator Patterson: Madam Chair, there’s another point of order that I wish to raise —
Senator Sinclair: Should we deal with the first one first before going to another point of order? Could you repeat your point of order?
Senator Patterson: There’s no work plan that’s been agreed to for the number of meetings or the number of witnesses.
The Chair: We do have a work plan.
Senator Sinclair: That’s the ruling of the chair. We do have a work plan.
Senator Plett: We have a chair. I would suggest we let her rule, Senator Sinclair.
Senator Sinclair: I’m just responding to the senator’s comments.
The Chair: Yes, I did indicate, before Senator Sinclair spoke, that we do have a work plan, which was agreed to. First we had a work plan for two meetings. Then we had a work plan for four meetings. Those were verified by the clerk. We have it in the minutes of our meeting that it was agreed to, so there’s no reason for us to delay this meeting.
Senator Plett: I have not seen that work plan as having been submitted or agreed to. As I said yesterday in the chamber, Madam Chair, there was a very clear understanding of how the committee should proceed with this. Those conditions have not been met. I’ll use the term “conditions” because Senator Sinclair corrected me on that yesterday, but Senator Sinclair also agreed that I had put some very clear conditions down about how we would be proceeding with Bill C-262. Those conditions have not been met, Madam Chair.
We have government business before us that has not been finished, and we are now putting private member’s legislation into the mix when we have not finished dealing with government business. This committee has government business before it. We are bringing in department officials as witnesses to a private member’s bill, which is quite unprecedented, yet the ministers of those same departments are refusing to come as witnesses when they, in fact, are the ones who have been pushing for this committee to break with all precedent and deal with private member’s legislation.
Madam Chair, I don’t think this committee has agreed to anything. I think that before we move ahead, the committee needs to discuss and agree with a work plan based on the Rules of the Senate. I don’t think that’s been done.
The Chair: First of all, the agreement that you’re speaking about with, apparently, Senator Sinclair, was not an agreement with this committee, so it does not apply.
Second, we did have government business to start the meeting this morning, and we intend to have them back. This slot was open and, as I said, steering had agreed to this. It has not been our practice to take it to the whole committee, but perhaps we could vote on it right now. Is that work plan agreeable to the rest of the committee?
Senator Sinclair: I would move that the work plan as proposed by the Subcommittee on Agenda and Procedure, the work plan as enunciated by the chair, be adopted.
Senator Plett: Which one?
The Chair: At least the two meetings, because the fourth one is dependent. We can do both if you like. We can start with the first work plan with two meetings.
Senator Patterson: Madam Chair, I want to be clear that I believe this bill, to which great importance is attached and which could impact every law that’s on the Statutes of Canada, must be carefully considered in all its dimensions. All I want to achieve as the critic of the bill is having a full consideration of all aspects of this important bill, a balanced consideration.
Two meetings, Madam Chair, with the greatest of respect, is a token study of such an important bill. I’m very concerned that we would consider doing this important work in only two meetings. I submitted a list of witnesses to the committee clerk, and they are witnesses that were not heard in the other place and who cover a broad range of issues relating to this bill. I have had no assurances that those witnesses will be considered. I certainly know that if there are only two meetings, we will have only touched the surface of what’s a very important bill.
I think we should go into the approval of this bill — and I know there’s widespread support for it — with our eyes wide open. What are the long-term implications? How is the action plan going to be developed? What is the significance of a declaration in international law? What is the historical context of UNDRIP? What is its provenance? These are important questions that we certainly could not address in two meetings.
The Chair: We did initially approve two meetings, and we then approved four meetings. The four meetings were contingent upon agreement either with the whips or putting forth some other motion to get agreement on that. The steering subcommittee took those points into consideration, and that’s why we came up with a plan for four meetings. Our last word was that we were not getting support from, frankly, your side and that they wouldn’t support the motions to move forward.
We have Senator Plett, Senator Tannas and I think that, after this, we should go to a vote. Otherwise we’ll spend the whole time period discussing this rather than actually dealing with this important bill, as you said. Let’s get to the discussion.
Senator Sinclair: Just to clarify, my motion was intended to deal with the plan, for which you suggested four days.
Senator McPhedran: There’s a motion on the floor.
Senator Plett: Before we vote on the motion, I do want to clarify whether it’s two meetings or four meetings.
Senator Tannas: Four.
Senator Plett: It’s for four meetings.
Senator Sinclair: That’s what I just clarified.
Senator Plett: Is that intended to be it? There is not necessarily an end date on that? That will be a question.
I do have a comment before we address the question, and I think it is relevant to this motion. That is simply this, Madam Chair: I don’t want to put words into your mouth, but I think you said something about there having been no agreement with this committee as to ministers and so on and so forth. You’re absolutely correct on that, Madam Chair. However, you put relevance and a lot of stock into the discussions I had with Senator Sinclair in getting this bill to committee when you asked me about it in the chamber. There were conditions, so I am still hopeful, Madam Chair. After the first meeting that Senator Sinclair and I had, we had a subsequent meeting, and Senator Sinclair told me at that time that he had tried, and I accept that, but it hadn’t worked and I said that the ministers did not have to be the first. If we had the ministers coming, we would be trusting and accept that.
I’m hoping, Madam Chair, that we are going to get some assurance that the ministers will be summoned to this committee either in one of those four meetings or after that. This committee has the wherewithal to do that. This committee has the wherewithal to say to the ministers, “Here’s what the conditions were of us moving forward, and we expect to have you come and testify here.” Madam Chair, if you don’t give me that assurance, I will respect that, but I’m asking that I get assurance that the spirit of the agreement will be honoured by us asking those ministers to come. That is in no way trying to block anything or trying to stretch this out. It is asking the ministers to come here and testify. They clearly put importance on it by sending their officials here. Madam Chair, I’m hoping very clearly, for the sake of collaboration here and getting approval from the whips to have subsequent meetings, that the spirit of that agreement will be honoured.
The Chair: As I said to you yesterday in the chamber, we did ask the ministers to come. We cannot force the ministers to come. Are we ready for the question on the motion?
Some Hon. Senators: Question.
Senator Patterson: Madam Chair, if I may, where is the work plan? What is the work plan? Is it written down? Can we see it?
The Chair: Yes, absolutely.
Senator Patterson: Before we vote, I’d love to see the work plan. From the beginning this morning, I didn’t understand what the work plan was. That’s why I raised this point of order.
Senator Sinclair: The question has been called, Madam Chair.
The Chair: The question has been called as to whether the committee supports the work plan developed by steering to have four meetings on this bill and to be concluded by June 5. We also have a list of witnesses. That the work plan can be circulated to committee members, but the question will be called. At this point, the work plan is only in English, so we can’t distribute it until it’s translated into French. Are we ready to vote?
Senator Patterson: Well, I propose that we accept the document in English, even though it’s not translated, on the understanding that it will be later translated into French. We often do this, Madam Chair. I’d really like to see the work plan before I vote. I have no idea what it calls for.
Senator Sinclair: Senator Tannas is right beside you. He was there.
Senator Patterson: He told me it was going to be punted to the committee.
The Chair: We did not discuss doing that.
Senator Tannas: I want to get a couple of things on the record here.
I did not agree. In fact, I specifically said I could not agree to a two-day study of this bill, that four days was what we needed, and we agreed we would do that subject to agreement with the leadership, which at the moment we don’t have. So in my view, we don’t have a plan. We have a discussion around four days, and Senator Plett has said what he said.
I’m fine if we have the support of this committee for a four-day work plan, but we should share with the committee who the witnesses are and vote on it. I suggest that, in addition to the four-day work plan, we keep our minds open to the fact that we may not get done in four days and this committee can decide whether they want to go further.
Senator Coyle: I’m feeling a little bit impotent as a committee member, to be honest, just hearing this discussion. I think the committee wants to get moving.
Senator Tannas: My understanding is that if the committee wants, at any time, they can take control of the agenda from the steering committee. The committee is in charge.
Senator Coyle: That’s what we want to do.
The Chair: Does the committee wish to vote now? Call the question.
Senator Patterson: What’s the plan? Can we see the plan?
Mireille K. Aubé, Clerk of the Committee: We’re printing 15 copies.
The Chair: It’s being printed. Do we wish to proceed without actually having seen it?
Senator Patterson: No.
Senator Sinclair: We do.
The Chair: We do?
Senator Sinclair: Yes.
Senator McPhedran: I just want to point out that this has been summarized for us. We know what it is we’re being asked to vote on, and I and others have called for the question a number of times.
The Chair: Yes. We do have a work plan. I don’t know if someone has a copy right now that I can look at. I don’t think I have my copy with me. We developed a work plan for four meetings ending on June 5, with a list of witnesses and alternates. We did take into consideration the witnesses that were submitted by Senator Patterson. Many of the witnesses that you suggested were already on the list, so that’s where we’re at.
The question has been called. All those in favour of adopting the work plan developed by the steering committee to proceed with four meetings for Bill C-262, ending on June 5, with the list of witnesses that’s taken into consideration, both Senator Patterson and Senator Sinclair? All those in favour?
Senator Sinclair: Are you doing a recorded vote or by hand?
The Chair: Let’s do a recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: For.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: For.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: For.
Ms. Aubé: The Honourable Senator Doyle?
Senator Doyle: Against.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: For.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: For.
Ms. Aubé: The Honourable Senator McPhedran?
Senator McPhedran: For.
Ms. Aubé: The Honourable Senator Oh?
Senator Oh: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: For.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: I can’t vote for this without seeing the work plan. No.
Ms. Aubé: The Honourable Senator Plett?
Senator Plett: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: Yes, 8; no, 5. Motion carried.
The Chair: So we shall proceed. Opening remarks from Ms. Sargent, to be followed by Mr. Wild.
Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice Canada: Thank you very much, Madam Chair. I would like to thank the committee for inviting the Department of Justice to appear today with respect to private member’s Bill C-262. I’m very pleased to appear alongside my colleagues from Crown-Indigenous Relations and Northern Affairs Canada, and we’ll share our time for these opening remarks.
I would also like to acknowledge we’re on traditional Algonquin territory.
As you know, in May 2016, the government announced at the United Nations that Canada is a full supporter of the United Nations Declaration on the Rights of Indigenous Peoples. At that time, it committed to the declaration’s full implementation, in partnership with Indigenous peoples.
Since then, the government has taken many steps in support of this commitment. The establishment, in 2017, of the Working Group of Ministers on the Review of Laws and Policies related to Indigenous Peoples was one of the key steps in this process.
The cabinet committee on reconciliation is now continuing the important work of the working group of ministers to ensure that the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights, adhering to international human rights standards, including the declaration, and supporting the implementation of the Truth and Reconciliation Commission calls to action.
Further, in July 2017, the Government of Canada adopted and publicly released the principles respecting the Government of Canada’s relationship with Indigenous peoples. The principles are rooted in section 35 of the Constitution Act, 1982, and the UN declaration. They’re informed by the report of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission’s work.
The principles, as well as the declaration, guide the review of laws, policies and operational practices and form a foundation for transforming how the federal government supports Indigenous peoples and governments.
Another important step toward the implementation of the declaration was the government’s announcement in November 2017 that it would support private member’s Bill C-262.
As you know, Bill C-262 calls for measures to be taken to ensure the alignment of federal laws with the declaration. The bill’s proposed approach, similar to the approach taken by the government to date, reflects an acknowledgment of the need to implement the declaration in cooperation and collaboration with Indigenous peoples through a range of diverse measures, including, but not limited to, legislative, policy and administrative measures. The nature, scope and type of approach in different areas will necessarily vary.
This bill also reflects Article 38 of the declaration, which reads as follows: “States, in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”
For this reason, and as many have observed, Bill C-262 alone won’t accomplish the full implementation of the declaration. A comprehensive approach, including additional efforts and measures targeted at achieving the ends of the declaration, is needed.
The process and framework outlined in Bill C-262 provide an avenue for identifying and pursuing such further measures as may be required, in consultation and cooperation with Indigenous peoples.
A comprehensive approach to achieving the ends of the declaration in Canada will also require the involvement of provincial and territorial governments. Bill C-262, however, doesn’t change this, nor does it impose obligations on provincial or territorial governments. It does, however, position the federal government to take leadership in ongoing efforts to advance the declaration’s principles and objectives in Canada.
As with other international instruments Canada has committed to implementing domestically, much of the declaration is already being implemented through the Constitution, existing legislation, as well as a wide range of policies and programs. Section 35 of the Constitution Act and the Charter, for instance, already reflects many of the rights set out in the declaration, including, of course, the core right to equality and non-discrimination affirmed at Article 2 of the declaration.
The declaration, like other international instruments, can already also be used to inform the interpretation of domestic law. As a result, the declaration already has application in Canadian law, as affirmed by clause 3 of the bill.
However, there’s no doubt that more can be done in Canada to ensure that federal laws contribute to achieving the objectives of the declaration. Bill C-262 provides a framework for pursuing this work in collaboration and consultation with Indigenous peoples.
Both the development of an action plan and the process of identifying measures to be taken to ensure consistency set out in the bill require the cooperation and consultation of Indigenous peoples. As a result, the ongoing involvement of Indigenous peoples will be a key facet of implementing Bill C-262, should it be enacted.
I look forward to answering any further questions from committee members and turn it now to my colleague.
Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government Sector, Crown-Indigenous Relations and Northern Affairs Canada: I’d like to start by acknowledging that we’re meeting today on unceded Algonquin territory.
My declaration is about the right of Indigenous peoples to control their lives and the things that matter to their communities.
The declaration provides a framework for relations between the state and Indigenous peoples and provides a framework for how to approach the implementation of the inherent right of self-determination that Indigenous peoples enjoy.
The federal public service has been undergoing an important cultural shift towards an approach that is better aligned with the declaration. We have a deputy level committee that provides oversight on the implementation of modern treaties. We have permanent bilateral mechanisms between the Prime Minister and various national Indigenous organizations, as well as the Canada-Modern Treaty and Self-Governing First Nations Forum. These fora provide an important development for senior officials and Canada’s elected representatives who are engaging directly with Indigenous leadership and at the level of the Prime Minister.
We are beginning to see the declaration cited directly and being reflected in federal legislation. The Indigenous languages and child and family services bills made significant progress in the implementation of Indigenous jurisdiction and the declaration. Bill C-68, amendments to the Fisheries Act, and Bill C-69, proposed enactment of the Impact Assessment Act, the Canadian Energy Regulator Act and the Navigation Protection Act, have a built-in pre-engagement phase and a requirement for incorporation of traditional knowledge. These are positive steps forward on the path of being able to demonstrate how and in what ways the declaration can be implemented.
By definition, the right to self-determination is the right to set and control the path that your own community wishes to follow. That’s why the co-development of federal measures and the negotiation of agreements are the ultimate expressions of the declaration’s foundations. The government used to approach negotiations through a prescriptive mind-set that favoured federal interests by focusing on the concept of “certainty.”
It was very much a colonial mentality set out in the comprehensive land claims and inherent right policies, and we have been moving away from those policies to a rights-centred approach that is premised on the idea that we need to co-develop mandates with Indigenous peoples and that the recognition and implementation of their rights are framed through the UN declaration.
We no longer come to the table with a unilaterally developed and cookie-cutter mandate. Instead, we write our negotiation mandate together, where Indigenous peoples bring their community needs and self-determination priorities to the table. Gone too are the days of distinguishment of rights. Federal negotiators are instructed to find ways to ensure that agreements can evolve over time, that agreements can be incremental as opposed to comprehensive and that we have the ability to focus on the implementation of Indigenous rights as opposed to defining the scope, nature and extent of rights.
Currently, we have over 140 negotiation tables that cover over 550 communities and speak for approximately 1 million Indigenous peoples. Many of these discussions centre around the right of self-government and reconciling Indigenous and federal legal orders. These tables are providing a pathway out from under the Indian Act, which destroyed Indigenous legal systems and institutions.
The declaration is also premised on the fact that, through greater control and social determination, socio-economic indicators will improve and gaps with other Canadians will close. Through an agreement reached, for example, with the Manitoba Metis Federation, a significant investment was made that will provide support for better education, health and housing outcomes.
Under the old ways of doing business, we simply weren’t engaging with the Metis on their section 35 rights at all. Our new approach is with First Nations, Inuit and Metis and is more in line with an inclusive concept of Indigenous peoples as framed by the declaration.
Our actions now also recognize the importance of the land to Indigenous peoples and specifically the use of the land. For years, we have been unable to resolve Canada’s failure to live up to the terms of the Williams treaties, which included harvesting rights with the First Nations of southern Ontario. Canada long argued that the Williams treaty had extinguished harvesting rights and effectively implemented a ban. Under a new negotiated agreement, the Williams treaty First Nations’ harvesting rights are once again recognized by Canada and are being implemented by those First Nations.
We are now actively seeking opportunities to work with Indigenous peoples towards redress regarding past wrongs perpetrated by Canada. You may recall the exoneration of the six Tsilhqot’in chiefs by the Prime Minister in the House of Commons in 2018 or, more recently, the exoneration of Chief Poundmaker in Saskatchewan.
We have made considerable progress with Indigenous peoples toward ensuring they have the capacity and fiscal relationship with Canada to govern effectively. Through a multi-year process with Indigenous self governments, we established the collaborative self-government fiscal policy. I am pleased to say this new approach was funded through Budget 2019 and we are now in the implementation phase.
The government has taken a whole-of-government approach to integrate engagement and consultation with Indigenous groups into the way we do business. Tools, training and protocols that outline consultation processes have been developed to support federal officials’ efforts in this respect. We have entered into 11 consultation protocols, with a number of others under way, to help meet the legal duty to consult and free, prior and informed consent. Agreements are beginning to reference the declaration.
As stated by the Truth and Reconciliation Commission, the United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation.
The crucial task of reconciliation and implementation of the declaration is a generational project. It will not be achieved overnight. That said, we are making progress on what the declaration means to Indigenous peoples and to Canada.
Thank you. My colleagues and I are pleased to take your questions.
The Chair: Thank you very much. The floor is open to questions for senators. We have about 25 minutes left and 12 senators, so two minutes each, one question to start.
Senator McCallum: Thank you for your presentations.
There has been fearmongering regarding veto over industry. I believe that creates a conflict of interest, with parliamentarians supporting industry over First Nations rights. Would you agree that First Nations and Metis have the right to have their free, prior and informed consent obtained without force, coercion, intimidation, manipulation or pressure from the government or companies seeking consent that’s free; that they have sufficient time to review and consider all relevant factors, starting at the inception stage, in advance of any authorization for, and continuously through throughout the planning and implementation of activities, which are prior; that it’s based on an understanding of adequate complete, understandable and relevant information relative to the full range of issues and potential impacts that may arise from the activity or decision that is informed and can be given only by the legitimate representatives of the people affected, with any caveats or conditions stipulated by the people whose consent is given? That’s the consent. Furthermore, would you agree that full, prior and informed consent cannot exist where a people does not have the option to meaningfully withhold consent?
Ross Pattee, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada: Thank you very much, honourable senator, for the question.
Free, prior and informed consent is not defined in the UN declaration, and there is no international or domestic agreement on the meaning of the principle of free, prior and informed consent. However, the meaning of the first three elements is generally understood as being focused on the procedural components of consultation and participation of Indigenous people. “Free” generally implies there is no coercion, intimidation or manipulation. “Prior” implies that the consent is to be sought sufficiently in advance and that respect is shown to time requirements of Indigenous consultation processes. Finally, “informed” implies that the information provided covers a range of aspects related to the matter at issue.
The meaning of “consent” has been the focus of much international and domestic debate. “Consent” has been characterized by former UN Special Rapporteur James Anaya as “making every effort towards mutually acceptable arrangements, allowing Indigenous peoples to generally influence the decision-making processes. It’s about building consensus and working together in good faith.”
Senator Coyle: I was going to ask something similar. I’ll switch my question.
I’m a supporter of this bill. I’ll put that on the table. I spoke to it at second reading. We have heard a lot from Canadians all across Canada — not just Indigenous Canadians, but many Canadians across the country — in support of this bill. I am encouraged to see that the government was already moving in the direction. Canada signed the UN declaration before this particular bill actually came to us. You have outlined a number of steps that Canada has been making towards the goals of the declaration. Can you speak to us from both perspectives on how this particular bill helps advance the track that you both expressed that you were already on? How does it enhance what the Government of Canada is doing, if it does in fact enhance it?
Mr. Wild: I’ll start, and Laurie may wish to add.
I think that the way in which Bill C-262 will help the government in the implementation of the declaration is that it requires the government to be transparent publicly with the plan and the progress that it’s making against that plan. I think we have a similar experience with the calls to action from the Truth and Reconciliation Commission, where calls to action also required that there should be a plan and a public reporting against that plan. That’s always a useful thing for a government to do, to be able to transparently report on the measures that it’s taking to implement something. That allows for scrutiny by both the Senate and the members of Parliament and the ability to hold the government to account for the things it is doing in order to actually implement the declaration. It also provides transparency for Canadians across the country in that they will be able to see there is a plan and they will be able to judge for themselves on whether or not they think the measures the government is taking are adequate to implement the declaration. For Indigenous peoples in this country, that provides the same level of transparency.
I think that’s an important piece of what is the bill is doing. From a policy side, that is a significant measure or element in that anytime you have that kind of reporting requirement for a government, it does mean that we have to put in place the governance and the structures internally to ensure that we are, from a whole of government perspective, able to speak about the actions that we’re taking and the impact that we think those actions are having.
What all this is about at the end of the day is progress in reconciliation with Indigenous peoples.
Senator Coyle: Thank you.
Ms. Sargent: I would add that the bill itself does clearly allow for quite a bit of flexibility, which is important from a government perspective. Do you take legislative measures or other types of measures to implement the declaration? It’s a framework or a vehicle that keeps us on a track of moving forward. Fundamentally, what the bill seeks to do is to progressively require transparency in progress being made.
Senator Coyle: Thank you very much.
Senator Tannas: In 2016, former Justice Minister Jody Wilson-Raybould called the bill unworkable and said that it was a distraction to the hard work of implementing UNDRIP. Now we have, three years later, two ministers of the Crown writing to us and publicly shaming us and encouraging us to deal with this bill expeditiously. Now we have Justice officials here commenting on a private member’s bill that they, in theory, had no hand in drafting. I would like to ask the folks from Justice if they could please table any legal opinions that they had provided to anybody in the government prior to 2016 that might have informed the then Justice Minister’s opinion and any that have come subsequently.
We all agree that the national action plan and the inventory and the reporting to Parliament are all great things. I want to understand what advice has been given to the government and the ministers in their now support of the bill around clause 3 and clause 4. What specifically is your opinion on clause 3 and clause 4 with respect to their potential legal meanings? Would you agree to do that? Could you also provide maybe a summary, if you recall any opinions, as to what happened or what changed?
Ms. Sargent: Definitely my pleasure to clarify a few things. First, of course, it was former minister Jody Wilson-Raybould and minister Bennett who articulated the government’s support in 2017 for the private member’s bill. There was a shift, and I’m not going to get into the reasons for that, but I think there was a general sense that Bill C-262 provides a useful framework. It’s not the whole picture. That was always the position being expressed consistently by ministers when Bill C-262 was first introduced: it was a piece of the puzzle; it wasn’t the full puzzle. There was perhaps a more ambitious plan to move the agenda on the UN declaration forward. In the end, Bill C-262 has carried through, whereas some of those other elements may not have.
With respect to the legal advice, as I’m sure you’re aware, I’m not in a position to actually share the opinions that have been written themselves as they are protected by solicitor-client privilege. But I can express as, was done in the opening remarks, that with respect to clause 3 of the bill, the declaration having application in domestic law, we understand, and it has been stated many times in speeches before both the Senate and the other place, that it basically just declares the existing state of the law, which is that courts and governments can take the declaration into account in interpreting domestic law. That is a very well-known principle of statutory interpretation in Canadian law. I can offer to provide some cases that would speak to that point, if that would be of interest. In decisions such as the Supreme Courts in Hape and other decisions, they clearly talk about the interrelationship between international instruments and domestic law and the fact that even if Canada hasn’t ratified or domestically incorporated the legislation through a statute, it can inform the interpretation of federal legislation where relevant.
So that is how we see this bill working. It is not an actual attempt to legislate each provision of the declaration in Canadian law. The bill would have to be a lot more explicit if that were the intention. It would have to take each article and say this is now federal law. We don’t read it saying that.
With respect to clause 4, it clearly creates an obligation on Parliament and the government to do something to ensure, create a mechanism to ensure, that federal legislation is being looked at, reviewed and revised for consistency with the declaration, but again, we don’t see it as, if you will, transforming the declaration itself into federal law. That would be a very different type of provision.
Senator Patterson: I have three quick questions for Mr. Wild.
The Chair: One question.
Senator Patterson: Maybe I’ll table them and maybe I’ll get written answers.
First of all, I would like to ask what happened to the Prime Minister’s commitment to develop a made-in-Canada Indigenous rights framework. It has been abandoned, and now we’re working on an international declaration. I would like to know the story of that.
I would like to know, does the government have a plan to involve the Indigenous peoples of Canada in developing the action plan that is required under the bill?
Third, you said gone are the days of extinguishment. The Inuit signed a land claim agreement in 1993 for Nunavut. It involved unceded occupancy of 20 per cent of the land mass of Canada. They got 18 per cent of the land, they got compensation, and they had their Aboriginal rights to land extinguished. Articles 26 and 28 of the UN declaration call for redress where lands have been taken or otherwise used without free, prior and informed consent. Does this bill mean that the Inuit can now renegotiate the fairness of their land claim agreement under articles 26 and 28?
The Chair: I would like the witnesses to answer one of those questions. We are running out of time. We have one more senator who wishes to ask a question.
Senator Patterson: Pick the easiest.
Mr. Wild: I don’t know which one to pick. I will start with the last question that was asked, just to clarify that. I think the government’s view remains that the agreements that we enter into with Indigenous peoples are the best example of the implementation of the concept of free, prior and informed consent. Those agreements all go through a process that involves community ratification. So no, we don’t see the adoption of Bill C-262 as reopening the agreements we have already entered into.
That said, we are always open to conversations with any Indigenous nation’s government that feels that any agreement we have entered into does not fairly reflect the relationship. We are always looking for ways to improve our relationship, but nothing in this would require those agreements be reopened. We have been willing to entertain conversations about whether there are ways, without necessarily reopening the land and capital transfers that were agreed to, to address other issues that some of those agreements may have created through some of the narrow provisions that are contained within. We’re always open to a conversation about what we can do to improve the relationship and what we can do to improve our land claim agreements.
The Chair: Ms. Sargent, do you have anything to add?
Ms. Sargent: No, I don’t think so.
The Chair: Thank you.
Senator Christmas: I also have two questions, but I think I’ll ask one to Ms. Sargent.
In your remarks, Ms. Sargent, you talked about how Bill C-262 alone will not fully implement the UNDRIP, and you also mentioned the need for additional efforts and measures. Could you elaborate on that comment about what additional efforts and measures will be needed to fully implement UNDRIP?
Ms. Sargent: Yes, with pleasure.
As Bill C-262 itself recognizes, and what I meant through my comment, was adoption of the bill alone will not itself mean that Canada can say, “That’s it. We’re good. We have implemented the UN declaration.” It clearly contemplates a process for ongoing alignment of federal legislation, new legislation as its coming through or older legislation that may need to be reviewed in light of the UN declaration. It really does set into place a process, but it does not mean that Canada will have fulfilled or implemented every aspect of the declaration. Additional efforts can include any range of measures. They include, notably, some of the legislation that is before you at the moment: Indigenous languages, child and family services legislation.
Each piece of legislation has the potential to implement the declaration. Again, that’s what Bill C-262 requires, is that careful consideration be given every time a new bill is being considered. There is also a wide range of policy and other measures that can be taken to implement the declaration, which is, as you’re aware, very broad in scope and covers a wide range of matters. Housing policy or any number of different pieces of the puzzle, if you will, can themselves help implement the declaration going forward.
Senator Christmas: You mentioned in your comments that this would also involve provincial and territorial governments. Could you elaborate on that?
Ms. Sargent: Yes. Let me clarify. As the remarks stated, we don’t see Bill C-262 requiring or obliging provinces and territories to take measures. This is a federal bill aimed at the federal government in terms of its scope.
That said, what we fully recognize, and what ministers responsible for human rights from the federal government, provinces and territories who met back in December 2017 all recognized, was that the declaration does cover off many areas that are within provincial and territorial jurisdiction: education, health and so on. At that time, they committed to continue to take steps and to discuss the measures that would be needed to progressively implement the declaration over time. That is an additional and separate exercise from what Bill C-262 requires, but again, as my remarks noted, Bill C-262 does put the federal government in a position of leadership in relation to demonstrating that it’s taking measures itself to move that project forward.
Senator Christmas: Thank you.
The Chair: We have come to the end of our time. On behalf of the members of the committee, I would like to thank the officials from the Department of Justice and Crown-Indigenous Relations and Northern Affairs Canada for appearing this morning.
Continuing our work on the study of Bill C-262, the committee is pleased to welcome the sponsor of the bill, Mr. Romeo Saganash, Member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou. We also have at the table the Honourable Murry Sinclair, Senator. He is joined by Wilton Littlechild, Grand Chief, Confederacy of Treaty Six First Nations.
We will begin with opening remarks from Senator Sinclair, to be followed by Grand Chief Littlechild and concluding remarks by Mr. Saganash. Senator Sinclair, the floor is yours.
Hon. Murray Sinclair, Senator, as an individual: Thank you, Madam Chair.
As unusual as it is for a member of the committee and a senator to be sitting in this position, I do it mainly as the sponsor of the bill in the Senate and also as the former chair of the Truth and Reconciliation Commission in my earlier life, and to simply be available to respond to any questions that may arise with regard to procedural matters or the bill itself.
In the time that I have, which I’m sharing with Chief Littlechild, I wanted to draw the committee’s attention to the fact that we need to put into perspective and keep in perspective what this bill is really about.
What it’s really about is requiring the Government of Canada to do a review of its legislation to see the extent to which it is inconsistent with and needs to be brought in line with the principles of the United Nations Declaration on the Rights of Indigenous Peoples. A lot is being made of the possibility that the UN declaration itself is going to become the law of Canada by virtue of this bill, and that is not the case. People need to stop suggesting that, because the only extent to which this bill will have an impact anywhere in that direction is it will call upon Canada to look at its legislation and to make its legislation consistent with the principles that are set out in the declaration.
This goes back to a statement that was made by Prime Minister Harper when the UN declaration was first adopted by Canada. At that time, he referred to it as an aspirational document. I always interpreted and thought that to mean Canada has to aspire to the document. The question is, what has Canada done to aspire to the UN declaration? We’ve heard from departmental officials about the things they’re doing internally and programmatically, as well as in terms of their analytical approach to things, which is important, but we also need to look at the legislative process as well. That’s what this bill calls on the government to do.
For the remainder of my time, I will hand it over to Chief Littlechild. His work with the United Nations and the Permanent Forum of Indigenous Peoples led to this UN declaration being put together. He’s the authoritative voice in Canada on the UN declaration.
Wilton Littlechild, Grand Chief, Confederacy of Treaty Six First Nations, as an individual: Thank you and good morning.
[Editor’s Note: Mr. Littlechild spoke in his Indigenous language.]
I bring you greetings in my language to acknowledge that this year is the International Year of Indigenous Languages. I wanted to say a few words to welcome you and thank you for this opportunity.
As Senator Sinclair said, I’ve spent a tremendous amount of my time, over half of my life, on the UN declaration.
If I may tell you a short story: In August 1977, I was asked to chair a meeting, the second World Conference on Indigenous Peoples in Sweden. On that occasion, I was asked to chair the meeting of the ILO Convention 107, which was then the only existing international legally binding instrument on Indigenous rights. Having chaired the meeting, the delegation said to me, “Now you go to Geneva and get this convention amended.” So off I went to Geneva to meet with the International Labour Organization. Because they have a two-year process, we did indeed have the ILO convention amended. It is now Convention 169. At those meetings, we were quickly informed that the only elements of discussion available to us were economic, social and cultural rights. Civil and political rights, we were told, were actually the purview of the United Nations.
After the ILO convention was adopted, we went to the UN because civil and political rights were very important to our delegation. Indeed, my community sent me to the international arena after elders, through many ceremonies, expressed great concern that our treaties were being violated on a daily basis. They said because our agreement was with Queen Victoria, we need to go back to the international arena to try to renew our treaty relationship. Because they were about civil and political rights, we were sent to the UN.
As I’m sure most of you know, we couldn’t get into the UN, so we had to follow four elders, elbows hooked, who walked into the UN to ensure our voice was heard. Since 1923 and 1925 to 1977, we had no voice at the UN. Indeed, in 1948, when the Universal Declaration on Human Rights was adopted under the leadership of a lawyer from Edmonton, we were left out. Indigenous peoples were left out of the Universal Declaration on Human Rights. For many years, we had to argue that we were, in fact, human beings. I remember one of the elders saying, “What are we, then, if we’re not human beings? Are we a herd of elk or moose?” He said, “I know why they don’t want to recognize us as human beings. It’s because if they do, then they have to admit that we have human rights.” That was basically the fundamental position of the elders. That’s what we were seeking when we went to the UN.
I chaired some of those meetings at the UN. I remember calling for the floor to ask for a co-chair to be appointed at the meetings. This was about us, and if someone was going to be making laws about us, it would have been nice to have a co-chair. The meeting stopped immediately because a legal opinion had to be sought in New York. With a six-hour time difference, everything stopped. The answer came back and it said, “No, you cannot have a co-chair.” We went ahead anyway and participated as much as we could.
I was there every single year for twenty-five years. I can assure you that I heard every single argument against the declaration and about why we should not have a declaration. We were only trying to catch up to the rest of the world. They had human rights. We didn’t. We wanted to catch up to the rest of the world, and the UN declaration was one way to do it. Every argument by every state, 189 countries present, was raised. We heard those arguments, but eventually, we came to an agreement and the UN declaration was adopted.
When it got to New York, another committee was created. Before going to New York, I’m sorry, it went back to the Subcommittee on Human Rights, and an intersessional committee was created because many states felt that Indians shouldn’t be in the room. “This is a government-only process and we want to discuss this by ourselves.” It went on to a second working group.
Twenty-five years later, we finally had adoption. When it got to New York, we had to have another 12-year discussion. Forty-two years of my life have been dedicated to this document, the UN declaration.
When I hear questions being raised or arguments being made on why we shouldn’t support it, I am really concerned. How much longer do I have to wait? Do I have to wait another eight or ten years before I see the light of the day, when the UN declaration is endorsed and adopted in Canada, as was mentioned in New York in 2007?
I co-chaired the articles on treaty. I co-chaired the article on self-determination. I chaired the lands, territories and resources provisions. I chaired the expert group meeting at the UN on free, prior and informed consent. I wonder why today we sit here still waiting to have this legislation adopted.
I urge you, with the greatest of respect and humility, senators: We need to have this legislation adopted. With that, I thank you very much.
Romeo Saganash, Member of Parliament for Abitibi—Baie-James—Nunavik—Eeyou, Sponsor of the bill, as an individual:
[Editor’s Note: Mr. Saganash spoke in his Indigenous language.]
Those were words in honour of my language as well. Greetings and thanks to my two colleagues here.
All of you must have received much correspondence, many calls and postcards from a lot of people across this country. I’m not here to apologize on their behalf but only to say this: This is what Canadians want, not just Indigenous Canadians but all Canadians. This is about reconciliation certainly, but this is also about justice for Indigenous peoples. This is also about the human rights of Indigenous peoples in this country.
The United Nations has considered the rights of Indigenous peoples as human rights for the last three decades — human rights. I find it troubling that there are still people in 2019 in this place called Canada who oppose the human rights of the First Peoples of this country.
I travelled this country for more than eight weeks in a car, from coast to coast to coast, to promote Bill C-262. Every place I went, I came out of those town hall meetings with Indigenous and non-Indigenous communities where everybody overwhelmingly supported Bill C-262. It is what Canadians want.
Since 2007 when the UN General Assembly adopted the declaration, the general assembly has reaffirmed the declaration 10 times by consensus, meaning without a vote. This basically means that there is no country in the world that formally opposes the United Nations Declaration on the Rights of Indigenous Peoples. No country. It’s a consensus document.
The bill is pretty straightforward, with only six clauses. Clause 1 is the usual short title of the bill. Clauses 2 and 3 are important because they confirm that the UN declaration already has application in Canadian law. Clauses 4 and 5 are basically the legislative translation of Calls to Action 43 and 44 of the Truth and Reconciliation Commission. Clause 6 is basically the accountability and transparency clause, to make sure that the Government of Canada reports on the stages of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples in this country for the next 25 years.
There was a similar clause in the James Bay and Northern Quebec Agreement implementation act whereby the government, 25 years after the signing of the James Bay and Northern Quebec Agreement, was supposed to report to Parliament on the implementation of the agreement.
I don’t think it would have been possible to be where we are today, at committee stage now, and I trust that we will get to the finish line together on this bill.
There was a lot of support for this bill — scholars, university law professors, Indigenous organizations, non-Indigenous organizations, NGOs. Many people have spoken in favour of this bill throughout the country.
When I came out of residential school, after 10 years, I set out to do two things. One of them was to go back to the bush and live off the land, which I did for two years. More importantly perhaps was the promise to reconcile with the people who had put me away for 10 years. Bill C-262 represents that reconciliation for me.
I’ve worked for many years with Chief Littlechild at the UN. Many years we spent working together. I’ve spent more than half my life on these issues as well. I’m glad to see where we are today. I’m hoping we can finish the work that we need to do.
Clauses 2 and 3 of my bill are important. I want to quote Chief Justice Dickson in the reference case called re Public Service Employee Relations Act (Alberta),  where he talks about international instruments. I want to quote from that case because it will serve to confirm what clauses 2 and 3 say in my bill:
The various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms — must, in my opinion, be relevant and persuasive sources for interpretation . . .
— of domestic law. It is just as the former witness from the Justice Department said.
Although declarations are different from treaties and conventions, declarations do have legal effect because our tribunals, our courts and the judges in these institutions can refer to international instruments like declarations to interpret domestic law. That’s the legal effect of declarations.
I’m prepared to answer any questions. Thank you.
The Chair: Thank you very much.
Senator Tannas: Thank you very much to all of you for being here. Listening to you was a great pleasure. I want to say clearly that my concerns around the bill are about the bill, not about the UN declaration. That is settled. Canada has agreed with the declaration without any condition. The Prime Minister has said so and that is settled. It is here. It is among us. The issue for me is the bill.
I listened carefully to Ms. Sargent and also to Senator Sinclair and to you just now, Mr. Saganash, and I want to make sure that I’ve got this clear: I understand that clause 3 of the bill merely affirms, simply affirms, that the UN declaration status is not enhanced by the wording in this bill. There is nothing extra that is being put to the weight of UNDRIP that was not already there or that did not — as you just quoted Chief Justice Dickson — already exist. Therefore, those words have no extra meaning that anybody can look at and use as a tool to redraw battle lines in court. That is the concern, and I have every confidence we are going to hear from experts who say it does have extra weight and those who say it does not. I want to understand, as the proposer of the bill, Mr. Saganash, what specifically is your position? Are you attempting, through the language, to enhance the weight in Canadian law of the United Nations Declaration on the Rights of Indigenous Peoples beyond what it has if this bill didn’t pass?
Mr. Saganash: Senator Tannas, thank you for the question. I think it’s an important one.
I believe that the UN declaration, to paraphrase Ms. Sargent a while ago, is just one piece of the puzzle. There are multiple frameworks out there, whether it’s section 35 of the Constitution, the treaties that we have signed with Indigenous peoples in this country or the jurisprudence has come out in particular from the Supreme Court of Canada and the United Nations Declaration on the Rights of Indigenous Peoples, among other international human rights law from the UN. It’s just one piece of the puzzle. Let me put it that way.
I believe that both clause 2 and clause 3 of my bill are pretty straightforward. Clause 2 says basically that Bill C-262 cannot be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in this country. Clause 3 merely confirms that the United Nations Declaration on the Rights of Indigenous Peoples is an international human rights instrument that already has application in Canadian law, period. It’s very straightforward.
You surely know that tribunals and judges in this country are independent and impartial, and they can refer to international human rights instruments to interpret domestic law or domestic human rights law. That’s how our system works.
Senator Tannas: If that’s the case, why do we need to restate it in the operational sections of the bill? If everybody agreed, I’d agree, but I don’t believe everybody is going to agree with that.
So if it is already kind of said, could we get rid of that particular reference or change it so that it became clear that that clause was not there to strengthen or change the status of the UN declaration? And I ask this question, obviously, in the context of the fact that no other country has done what we’re about to do here, or what we’re considering doing, I suspect for some of the reasons that I’m asking about. What do you think about changing the language in clause 3 to clarify what you just said?
Mr. Saganash: First, you say that some may agree and some may disagree. I can affirm, however, that following the committee hearings in the other place, 99.9 per cent of the people agreed with the bill. Out of 71 witnesses, only one of them disagreed with the bill. That’s the first point I wanted to make.
Second, section 35, which speaks about Aboriginal rights, was a pretty vague concept back then. What is the content of Aboriginal rights in this country? So we went to court for many years to clarify that. My bill will avoid court cases because it clarifies a lot of the economic, social, cultural, political, environmental and spiritual rights of Indigenous people in this country. The merit of Bill C-262 is avoiding those court battles that we’ve always had. I don’t know how much the federal government spends annually fighting Aboriginal rights in this country. I asked the question to the Auditor General a couple of years ago. I haven’t gotten a response yet. With clarification of Bill C-262 and the UN declaration about what are the rights of Indigenous peoples, I think that will avoid a lot of court cases in the future.
Senator Tannas: Thank you.
Senator Patterson: Thank you for being here. I do fully respect the work of Chief Littlechild over so many years and the success you had leading up to the declaration. I’d like to hear a lot more about that while this committee studies the bill, how that came about and the weight of a declaration.
I’d like to ask Senator Sinclair the first question. You said this bill does not change Canadian law, but I see in clause 3 of the bill that the declaration, “is hereby affirmed as a universal international human rights instrument with application in Canadian law.” That’s not a term that has been used before in Canadian statutory drafting. What does this phrase mean if it does not suggest changing Canadian law? You’re telling us this is an innocuous bill and it’s just about reviewing Canada’s statutes, but section 3 says, “with application in Canadian law.” What does that phrase mean if it doesn’t suggest that it will in fact immediately change Canadian law?
Senator Sinclair: Thank you for the question, senator.
If your question had been properly based, I would agree with it totally, but it isn’t properly based. I didn’t say that it doesn’t change law. The fact that it’s a bill changes law. It becomes a law. Therefore, it’s going to change the legal environment within Canada just by enacting it. So it would be incorrect to say that this is not going to have an impact. It’s going to require the Canadian government to do something. It’s going to call upon a certain process to be put in place. It’s going to change Canadian law. There is no question of that. I didn’t say it’s not going to change Canadian law. What I said is this bill does not adopt the UN declaration as part of Canadian law. That’s what I have said, and that’s true.
You couldn’t adopt the UN declaration in a federal law to make it a law of Canada, because, first of all, it’s a declaration, and Canada is not bound to do that. Second, this particular UN declaration has implications for all levels of government. It has implications for the federal government, provincial governments, municipal governments and Indigenous governments. In each case, each of those entities is going to have to consider the extent to which it will make changes within its legal regime to be compliant with the principles that are enunciated in the declaration.
Speaking as the former chair of the Truth and Reconciliation Commission, that’s why we called upon the parties, not just Canada as a government entity, but if you read the calls to action of the TRC, we identified this as a corporate, municipal and provincial obligation to utilize the UN declaration on the rights of Indigenous peoples as a framework for reconciliation because what we intended by that is to say that this is a starting point. This is a good starting point for you to analyze the work that you’re doing and how you’re doing things and how you have done things.
Clause 3 will probably have at least an interpretive impact upon Canadian law, I think, because governments themselves will interpret their approach as a recognition that they are now recognizing the declaration as a universal international human rights instrument. By signing on to the declaration at the beginning, they did so. Now it’s part of Canadian law that they are repeating what they have already said publicly at the UN and to the Canadian public, which is that the UN declaration is a universal international human rights instrument with application in Canadian law.
But you’re quite right to ask the question of what an international human rights instrument means. That’s one aspect of it. The other aspect of it is “with application in Canadian law,” and what does that mean as well. I think the latter means an interpretive element because it doesn’t change any other legislation except to the extent that change may come about as a result of this review, but its recognition as a universal international human rights instrument, in my view — keep in mind that I’m only one view here — means that Canada is acknowledging that its human rights practices and obligations must meet the standards of the UN declaration, at least when it comes to Indigenous peoples.
I think it’s also important to keep in mind that the human rights for Indigenous peoples are not necessarily aligned exactly with the human rights of the general population. The reason I say that is because the human rights of Indigenous peoples were for many years — almost 140 years, approximately — denied to them by federal legislation primarily but also by provincial and municipal legislation. For example, in Manitoba, where I come from, it was against the law for Indians, so defined, to go into beer parlours, not necessarily the best human rights example, perhaps, but it’s an indication of the fact that it was a creation of a legal status that was different for Indigenous people than it was for the rest of the population. Across Canada, language and all sorts of other prohibitions were put in place: the right to vote, mobility rights, the right to assembly, the right to practise your ceremony, the right to speak your language, the right to practise your culture. The right even to wear Indian garb was against the law, denied by federal legislation. So all of that means that we have to recognize that the human rights of Indigenous people today come out of that history and must be enhanced more significantly by federal activity.
The Chair: Any other comments from the witnesses to that question?
Mr. Saganash: One element that I wish to add to what Senator Sinclair just said is that there is a presumption in our system that all of our legislation is consistent with our international human rights law obligations. That’s the presumption that already exists, so what Bill C-262 is simply doing is the fact that we’re making sure that all of our laws for the coming years stemming out of the Parliament of Canada are consistent with the UN declaration on the rights of Indigenous peoples.
Senator McPhedran: Gentlemen, thank you so much for being with us this morning. I was quite thrilled to snap a photograph of the three of you together before we began our official proceedings.
I would like to shift the discussion somewhat and ask all of you to respond to some concerns out there about the impact of Bill C-262 on international trade, for Canada to be able to conduct business outside of Canada. Do you see either any advantage or disadvantage to international trade and development for Canada as a result of adopting Bill C-262?
Mr. Littlechild: If I may, I would recall and draw your attention to article 36 of the UN declaration, which actually talks about international and cross-border activities of Indigenous peoples. I think it would enhance opportunity because when it’s not implemented, it prohibits.
For one simple example, we have a traditional ceremony, a sweat lodge. At the border of the United States, you cross the border to pick up some sacred rocks that are lava rocks to be used for your ceremony, and Indigenous elders are stopped at the border because they cannot bring rocks for a sacred ceremony, yet article 36 covers spiritual and economic activities among ourselves and between others. I think the article would enhance cross-border traffic and cross-border trade, especially from an economic aspect.
Also, treaties have two elements that are very relevant to the discussion. One is, for example, my treaty, Treaty Number 6. In 1876, it already had a provision for consent and it already had a provision for international activities between tribes and others across the artificial border, so it would not be an impediment.
I remember when the NAFTA discussions were happening. Again, we were excluded from those trade agreements. Culture and water are very important to us not only ceremonially but also as a way of life. We were left out of that discussion. So I think having a closer look at, for example, article 36 would be a benefit and an enhancement to the discussions that are under way right now.
Senator Christmas: First, I would like to publicly acknowledge and thank Grand Chief Littlechild for the 42 years that you have dedicated toward the development of the UN declaration on the rights of indigenous peoples. Thank you, grand chief, for that dedication.
One of my colleagues mentioned to the previous panel a quote from the former Justice Minister of Canada, Jody Wilson-Raybould, about some remarks she had made to the Assembly of First Nations in Niagara Falls on July 12, 2016. She commented that: “... adopting the UNDRIP as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it...” I would like to get your comments, perhaps starting with my colleague, Senator Sinclair. What is your view of then Minister Wilson-Raybould’s comments at that point and time?
Senator Sinclair: Thank you for the question, senator. There are probably three aspects to answering that question that I want to mention.
One is that the minister was quite right to point out that the more time you spend on these major, long-term, international universal issues, then the longer time goes by that children go hungry, that people are living in bad housing, that people do not have a good water supply, that children continue to get apprehended by the child welfare system and that men and women and children get locked up in jails. There are urgent matters that need to be addressed. In our calls to action with the Truth and Reconciliation Commission, we addressed that by pointing out that the first 24 or so of our calls to action were to address those immediate, urgent matters. Then, having put those into some form of control or doing something about those things, then we can start talking about the major universal, international and national issues such as proclamation, in the case of the calls to action, and working on interprovincial and international trade agreements that recognize Indigenous rights. We said those kinds of things shouldn’t take over the important discussion of saving children and protecting families. I think that’s one part of it.
Second, it also recognizes what I said earlier, which is that the UN declaration has implications for all sorts of entities within Canadian society, including provinces, territorial governments, municipal governments as well as the corporate environment, in terms of how they function, how they have been practising and how they continue to practice. So the UN declaration should be considered more carefully by them in terms of how they do things.
Third, there is the whole question of — I’m not sure compensation is the right thing — rectifying the damage that has been done by these 150 years of cultural and legal oppression that has gone on. People can’t speak their language, don’t know their culture, and the medical condition of Indigenous people is so bad and incarceration rates are so high are a result of the impact of 150 years of mistreatment. Coming up with an easy solution to that is not going to happen. I think it’s going to take a long fight. The UN declaration is part of the solution, and it has to give some direction to the conversation.
Senator Christmas: Do others want to comment on your thoughts on Ms. Wilson-Raybould’s comments?
Mr. Saganash: Well, I remember when she said that. My initial response at that time was to say that is not the intent and purpose of Bill C-262. Bill C-262 is to provide for a framework. For instance, if you want to legislate control First Nation’s education to First Nations communities, then the minimum standards are provided for under the UN declaration on the rights of indigenous peoples.
I remember the first speech Prime Minister Trudeau gave to the Assembly of First Nations in December 2015. One of the five things he said to the chiefs was that his government would rescind any legislation that was unilaterally imposed on Indigenous peoples by previous governments. I said to myself, “Let’s start with the Indian Act.”
If we are going to legislate on self-government or self-determination of Indigenous peoples, the minimum standards are provided for under article 3, article 4 in particular, of the UN declaration, if we want to get rid of the Indian Act. Those are the minimum standards that you need to respect.
Let me read article 3, which states:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The important word there is “freely.” It’s repeated twice in article 3 — “freely.” That’s the important standard that we need to respect for the future
. I disagreed with Jody Wilson-Raybould’s comments at that time. I still disagree. I think this is a pretty workable instrument that we have today. Over three decades of work has gone by since we started working on this document in 1984, I believe, after the establishment of the Working Group on Indigenous Populations.
I find it kind of unusual that our courts have so far not really determined our rights as human rights in this country. I think the closest that they got was in the Tsilhoqot’in case in 2014, where the Supreme Court talks about the Charter rights under Part 1 of our Constitution and Aboriginal rights under Part 2 of the Constitution as sister provisions that serve to limit the powers of governments, both provincial and federal. Those are the words of the Supreme Court: sister provisions, Charter and section 35 rights. So we are getting closer to that.
Be mindful of the fact that the United Nations has considered the rights of Indigenous peoples as human rights for the last three decades and have reaffirmed the UN declaration 10 times since the general assembly adopted the UN declaration in 2007.
Senator McCallum: Thank you.
[Editor’s note: Senator McCallum spoke in her Indigenous language.]
I thanked them for being here and for helping us to critically think out this bill.
[Editor’s note: Senator McCallum spoke in her Indigenous language.]
I wanted to go back to Senator Tannas’ statement that this does not include what didn’t already exist. That caused me concern because nothing is frozen in time, and we move on with our rights and with what was not afforded to us. What I am bringing back here is the free, prior and informed consent, because that has been brought up in the Energy Committee. I’m on the Energy Committee, and I asked that UNDRIP be placed within the bill in three places, and it was voted down. It’s that issue of the free, prior and informed consent as a veto. What I took from what happened is that the Senate at that moment had given itself the right to veto our right to say no when it comes to resource extraction and when it comes to the adverse impacts on health, economic, social, and environmental issues that come with resource extraction. When I see that situation, it’s a power imbalance that exists between the Senate and Indigenous peoples.
Canada’s context for free, prior and informed consent is unique, because unlike most other countries, the rights of Aboriginal peoples are protected under the Canadian Constitution. How can UNDRIP, including free, prior and informed consent, be interpreted in a manner consistent with Canada’s Constitution and legal framework?
Senator Sinclair: Well, I’m going to win this race. I can see that people are contemplating the question, but it’s a question that I’ve been contemplating ever since the TRC was considering the question of the universal declaration.
There is a lot of consternation out there about the issue of free, prior and informed consent and the allegation that it amounts to a veto. In response to a question that Senator Tannis asked when I gave my speech on the bill the first time it was in the chamber, and also to a question that Senator Massicotte asked of me at another public event that we were sponsoring for senators to talk about the bill, I said it’s important to understand the difference between a veto and a withdrawal or refusal to consent. The fact that you ask permission for someone to do something, and they say no, doesn’t mean you are stopped from doing it. What they are saying is you can’t do it on my land, or you can’t do it with me. You have to go do it with somebody else or you have to go do it on somebody else’s land.
That’s not a veto. A veto is somebody who has the right to stop you from doing it at all. You could narrowly interpret the concept of veto to say we’re vetoing your right to use this land that we’re on, that you’re on, and say, well that’s a veto because you’re vetoing my desire to use your land. But veto is simply a phrase which, in its Latin roots, means “I forbid.” Indigenous people are not being given the right to forbid. They are being given the right to require their consent. That’s totally different.
I understand the politics that goes on around this, and I understand that people are eager to look for simple concepts, but people who use the concept of veto and the concept of free, prior and informed consent as though they are the same thing are totally missing the point. They are not the same thing. They are totally different things.
The right of Indigenous people to give their free, prior and informed consent is not a newly created right that comes out of the UN declaration; it is a right that has existed in Canadian law going back, and it is a right that has been ignored.
I draw your attention to the fact that in the Royal Proclamation of 1763, after the French-English war, the Crown promised all the Indigenous nations in North America, “We will not take your land from you until you are ready to freely give it up.” That is free, prior and informed consent, so that concept goes back to 1763.
It was in the same usage and the same context as the treaties when they were signed following Confederation. When you look at the Constitution Act of 1870, and the events leading up to it, when Rupert’s Land was transferred to Canada, one of the obligations that the Crown imposed upon Canada is that if you want to expand into the West and make what is now Western Canada part of the Canadian Confederation, you have to enter into treaties with the Indigenous people in the West for their lands.
So there is a legal obligation on the part of Canada to enter into treaties. That means you have to get their consent before you can take over their lands.
That’s why when you look at the treaty process, most of the land that is covered by treaties are the lands that prime minister McDonald needed to run his rail line across the east to the West. He didn’t need to run a rail line into the North, which is why most of Northern Canada was not covered by treaties. But when it came to entering into the treaties, he certainly covered off the fact that for the land that he needed, he entered into treaties.
The Indian Act itself contains a provision that says you can’t take reserve land back from people unless you get their consent. They have to sign a document agreeing to let their reserve lands be taken away from them. Even in federal law, that idea was clear. in the Delgamuukw case, they said the same thing, and in Chilcotin, the Supreme Court of Canada said the same thing.
So the idea of free, prior and informed consent is not new to Canadian law. It has been ignored. It continues to be ignored today in this public debate.
Senator Coyle: I’ll defer.
Senator Pate: Thank you to all of you for the amazing and valuable contributions made internationally as well as domestically on behalf of Indigenous peoples but on behalf of all of us as treaty peoples. I appreciate that. I’m sorry to rush even the thank you, but I only have a minute.
In 2017, British Columbia committed to implementing the declaration in full partnership with Indigenous peoples and, as part of that work, all B.C. cabinet ministers are required to review policies, programs and legislation to determine how to bring the principles of the UN declaration into provincial areas. My understanding is the Province of Alberta took similar action with the previous government. Do you foresee a similar implementation process, or is that the sort of strategy you think might assist? If not, what are some better approaches we could be looking at or advocating once this bill passes?
Mr. Littlechild: If I may answer that, all 2700 of the Alberta public employees have now had to study the UN declaration. They have had to study the treaty. They have had to study the Crown-Indigenous relationship. All 1500 of the City of Edmonton employees have had to do likewise. I think that’s also really being beneficial in terms of outcome. So yes, I think that’s a good practice.
I also wanted to make a note on this free, prior and informed consent. Unfortunately, it has been very mischaracterized in Canada. To me, free, prior and informed consent started simply as consent in a treaty, and then it became mutual consent, and then it became free, prior and informed consent. But the point is that the UN declaration, free, prior and informed consent, the TRC calls to action and treaties are all calls on us to work together. They are calls on us to work together. We didn’t go to the UN for 25 years to cause problems. We were always solution-oriented. Yes, we were critical sometimes, but we always offered an alternative solution. That’s what free, prior and informed consent is. It’s a solution, much like treaties and the UN declaration.
By the way, if I may take a shot back, anyone who has worked on the UN declaration, ever, never calls it UNDRIP. When you say “UNDRIP,” it sounds like you’re going to call for a plumber. Something is dripping. The proper way to pay respect to it is to say it’s a UN declaration, and it’s a call to action for us to work together.
The Chair: Thank you very much. We’ve come to the end of our time. On behalf of our committee, I would like to thank our witnesses this morning, MP Romeo Saganash, Grand Chief Littlechild and Senator Murray Sinclair. It has been lovely to have you here. It’s quite historic.
Before we leave, I’d like to remind senators that the page will circulate the work plan, and a French version will be emailed out this afternoon.
(The committee adjourned.)