THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Friday, May 7, 2021
The Standing Senate Committee on Aboriginal Peoples met by videoconference this day at 11 a.m. [ET] to examine the subject matter of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
Senator Dan Christmas (Chair) in the chair.
[English]
The Chair: Honourable senators, I wish to welcome all of you as senators and our viewers across the country who may be watching on sencanada.ca to the Standing Senate Committee on Aboriginal Peoples.
Before we begin, I would like to acknowledge that we are meeting today on the unceded lands of the Algonquin Anishnaabeg people.
Before we do our introductions, there are a few housekeeping items to go over. I would like to remind senators to please keep your microphones muted at all times unless recognized by name by the chair. Should any technical difficulties arise, particularly in relation to interpretation, please signal this to the chair or the clerk and we will work to resolve the issue. If you experience other technical challenges, please contact the ISD service desk with the technical assistance number provided in the meeting confirmation document.
Before we begin our discussion, in order to safeguard the confidentiality of conversations, I remind senators, their staff and committee support staff participating in the meeting that it is their responsibility to ensure the environment in which they find themselves is private and that conversations held in the context of this committee meeting cannot be overheard by third parties. Participants should know to do so in a private area and to be mindful of their surroundings.
My name is Daniel Christmas. I am a senator from Nova Scotia, and I’m honoured to be the chair of this committee. I would now like to introduce the members of the committee who are participating in this meeting today: Senator Margaret Dawn Anderson from the Northwest Territories, Senator Mary Coyle from Nova Scotia, Senator Josée Forest-Niesing from Ontario, Senator Brian Francis from Prince Edward Island, Senator Nancy J. Hartling from New Brunswick, Senator Patti LaBoucane-Benson from Alberta, Senator Michael L. MacDonald from Nova Scotia, Senator Kim Pate from Ontario, Senator Dennis Glen Patterson from Nunavut, Senator Carolyn Stewart Olsen from New Brunswick and Senator Scott Tannas from Alberta. Other senators have also joined us this morning or this afternoon, depending on where you are: Senator Brent Cotter from Saskatchewan and Senator Mary Jane McCallum from Manitoba. We are expecting two other senators, and when they join us, we will certainly introduce them.
I would like to welcome our two witnesses this morning, the Honourable Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations; and the Honourable David Lametti, Minister of Justice and Attorney General of Canada. The ministers will be accompanied by departmental officials.
Minister Bennett and Minister Lametti will provide opening remarks of approximately six minutes, which will be followed by a question and answer session with senators for approximately three minutes per senator.
The first question, as is the custom in our committee, will be asked by the sponsor of the bill, Senator LaBoucane-Benson, and the second question will be asked by the critic of the bill, Senator Patterson. If other senators have questions, they are asked to use the raise hand feature on Zoom to signal this to the clerk. This will be acknowledged in the Zoom chat. Please note that APPA committee members will be given priority on the list of questioners. Any written follow-up to questions that may be asked should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise the chair via text when there are 10 seconds remaining for the speaking time of both witnesses’ introductory remarks and senators’ question and answer time. I will do a 10-second visual countdown with my hands. When I reach zero, I will simply advise that the allocated time is finished.
Now I’d like to turn the meeting over to the Honourable Carolyn Bennett.
[Translation]
The Honourable Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations: I speak to you today from the traditional territory of the Mississaugas of the Credit First Nation. I want to pay tribute to those who paddled in these waters and whose moccasins have trod this land. It’s a pleasure for me to appear before this committee to discuss Bill C-15. With me today from Crown-Indigenous Relations and Northern Affairs Canada are Ross Pattee, Assistant Deputy Minister, Implementation Sector, and Marla Israel, Director General.
[English]
I want to thank Senator LaBoucane-Benson for all her hard work shepherding this bill through the Senate.
After six years of hearings, the Truth and Reconciliation Commission Call to Action 57 focused on the importance of education on the United Nations Declaration on the Rights of Indigenous Peoples and stated that it charts a path for reconciliation to flourish in 21st century Canada.
After three years of listening to families and survivors, the National Inquiry into Missing and Murdered Indigenous Women and Girls called on governments to immediately implement and fully comply with the declaration.
The declaration is of critical importance to Indigenous peoples across Canada and is the result of decades of tireless effort, negotiation and sustained advocacy at the United Nations by inspiring Indigenous leaders, including Dr. Wilton Littlechild, whom I believe will be appearing before your committee later in the study. When we introduced Bill C-15 last December, Dr. Littlechild summarized this legislation as a roadmap to reconciliation.
I would like to also take this opportunity to recognize the leadership of former MP Romeo Saganash and to thank him for his work in Parliament and from coast to coast to coast with Indigenous peoples to advance Bill C-262, which served as a foundation for this bill. The introduction of Bill C-15 fulfils our government’s commitment to introduce legislation to implement the declaration, establishing Bill C-262 as the floor rather than the ceiling.
Prior to the bill’s introduction, 33 bilateral sessions took place with the AFN, ITK and MNC. In addition, more than 450 people participated in 28 regional engagement sessions last fall, providing feedback and advice on potential enhancements to the consultation draft of the bill. Provincial and territorial governments, experts and industry stakeholders also informed the development of the bill.
I truly believe that engagement on public policy and legislation needs to be inclusive and meaningful. I am proud that the bill was improved by the advice we received from many Indigenous partners and experts.
The preamble and the bill itself acknowledge the diversity within Indigenous populations in Canada and the need to recognize the two-spirit and gender-diverse communities that are not recognized in the declaration, which is a static document.
Since the introduction of the bill, extensive meetings have been held with Indigenous partners and stakeholders, and these ongoing discussions have informed a number of further amendments, which passed at the House committee. The expressed inclusion of racism in the preamble and the body of the bill, the rejection of the doctrines of discovery and terra nullius and the focusing of the timelines to co-develop the action plan to two years were all improvements advocated and supported by many Indigenous partners.
I also note that it has been more than 13 years since the declaration was adopted by the UN General Assembly, and Bill C-262 was the subject of extensive public engagement and parliamentary study.
We’re committed to meaningful co-development of the bill’s action plan with Indigenous partners and experts to ensure that the implementation is not only effective but accountable. We’ve already begun preliminary discussions with Indigenous partners on the design of that process, and Budget 2021 provides $31.5 million over two years to support its co-development.
Recognizing and respecting Indigenous rights means that Indigenous peoples are at the table for decisions that impact their rights. The declaration also recognizes the right of Indigenous peoples to the improvement of their economic and social conditions, including education, employment, housing, sanitation, health and social security.
I was very grateful for the conversation with Mary Ellen Turpel-Lafond on her findings about racism in health care In Plain Sight. She was very clear about the importance of article 24 in the declaration. Indigenous people have the right to traditional medicines and to maintain their health practises. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. UNDRIP will be the foundation for the future legislation on Indigenous health.
So, together with the TRC Calls to Action, the declaration provides a clear path so that all Canadians can see themselves as partners on the journey of reconciliation in Canada’s future. As I have said before, implementing the declaration should not be scary. Bill C-15 is about shedding our colonial past and writing the next chapter together as partners with Indigenous Peoples.
I urge all senators to support this fundamental and necessary change by supporting this bill. Thank you. Meegwetch. Marsee. [Indigenous language spoken.]
[Translation]
The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Good morning. I am pleased to have the opportunity to address the Senate committee today on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
I join you virtually from the traditional territory of the Algonquin people, whom I wish to recognize and honour today.
[English]
I have with me Assistant Deputy Minister Laurie Sargent, who is one of our true leaders on our Indigenous files. I thank her for her support today.
I’d like to take a moment to acknowledge the work of Indigenous leaders and parliamentarians to advance the implementation of the declaration. Thank you to Senator LaBoucane-Benson for her shepherding of this piece of legislation, but in particular I really want to recognize the work of my former colleague in the House of Commons Romeo Saganash, who introduced private member’s Bill C-262, which provided a basis for the engagement leading up to the development of Bill C-15. This engagement, which is ongoing, included a number of sessions undertaken on a broadly regional- and distinctions-based basis. We received invaluable input from modern treaty and self-governing nations, rights holders, treaty partners, Indigenous youth and national and regional Indigenous organizations, including those representing Indigenous women and two-spirit and gender-diverse people. All of this input helped to shape Bill C-15, which builds upon the significant work put into Bill C-262 and the enormous efforts at the international level to develop and advance the declaration.
This brings us now to the key elements of the bill, including recent amendments made by the Standing Committee on Indigenous and Northern Affairs. The bill makes a number of important statements in the preamble. This includes acknowledging the importance of the declaration as a framework for reconciliation, healing and peace, recognizing inherent rights, acknowledging the importance of respecting treaties and agreements, and emphasizing the need to take diversity across and among Indigenous peoples into account in implementing the legislation.
New additions to the preamble include references to “racism” and “systemic racism” as part of addressing injustices, prejudice and discrimination. This change was also made to clause 6 of the bill itself. These amendments recognize the need to take concrete measures to address injustices and discrimination as well as racism and systemic racism faced by Indigenous peoples.
Related to these objectives, there is the addition of a direct reference to the doctrines of discovery and terra nullius as being amongst the types of doctrines that have no place in informing our ongoing relationship with Indigenous peoples. That’s a key enhancement to the preamble. I can say that as someone who taught property law for 20 years in a law faculty, my students were made clear of what I felt of the doctrines of discovery and terra nullius, and colonialist and racist are two of the descriptors I would use.
Finally, a third amendment to the preamble provides further context for the bill, recognizing that in affirming and upholding constitutionally protected Aboriginal and treaty rights, these rights are not frozen but can grow and evolve.
Each of these amendments to the preamble reflects priorities identified by Indigenous partners and enhance the bill.
Bill C-15 recognizes that international human rights instruments such as the declaration can be used as tools to interpret Canadian law. This means that human rights standards that are outlined in the bill can provide relevant and persuasive guidance to officials and courts. It also means that we can look to the declaration to inform the process of developing or amending laws and as part of interpreting and applying them. This principle is particularly reflected in clause 4.
The legislation also requires the Government of Canada to take measures to align federal law with the declaration, develop an action plan in consultation and cooperation with Indigenous peoples within a two-year time frame and an obligation to report to Parliament annually on progress. Through these measures, Bill C-15 paves a clear path to a stronger, more resilient relationship between government and Indigenous peoples.
Moving forward on this path will require collaborative work to identify how the rights and standards expressed in the declaration will be put into practice. This includes key elements of the declaration like free, prior and informed consent. Flowing from the right to self-determination, free prior and informed consent as it appears in the various articles of the declaration speaks to the importance of the meaningful participation of Indigenous peoples through their own processes in decisions and processes that affect them, their rights and their communities.
Free, prior and informed consent is about working together to build consensus through dialogue and other mechanisms and enabling Indigenous peoples to meaningfully influence decision-making; it is not a veto over government decision-making. FPIC does not remove or replace government decision-making authority but it sets into place a process which will ensure meaningful participation.
[Translation]
After all, human rights and the obligations and duties that flow from them, including those in the declaration, are not absolute. Indeed, the declaration emphasizes that Indigenous peoples enjoy rights — individual and collective — equal to those of other peoples.
Different initiatives will have different impacts on the rights of Indigenous peoples and require different types of approaches.
[English]
As a result, free, prior and informed consent may require different processes or new, creative ways of working together to ensure meaningful and effective participation in decision-making. When Indigenous peoples have a seat at the table for decisions that may affect their communities, we are respecting their rights and encouraging stronger economic development and improved outcomes for all.
So let’s work together to implement this declaration, which I believe is a fundamental human rights document. I thank you.
The Chair: Thank you, Minister Lametti. Right on time.
The first question goes to the sponsor of the bill, Senator LaBoucane-Benson; followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: Thank you to both ministers for being here today.
My question is for Minister Bennett. I understand that your ministry is completing consultations with Indigenous stakeholders towards the creation of an action plan for the MMIWG report. Can you describe what you’ve learned in that process and how you will apply that to the co-development of the action plan for UNDRIP?
Ms. Bennett: Thank you, senator, for the great question.
I must say that the issue of co-development is evolving, and I think that with the languages bill there was some discomfort by some of our partners. Yesterday we heard very strongly at the FPT meeting from the Indigenous partners that the co-development on Bill C-92 on child and family services was very much better and that they really felt they had been listened to. I think even the co-development that Minister Lametti has done on Bill C-15 is in terms of, is it meaningful? Did what we hear end up in the document?
I think that’s what we’re learning on MMIWG with over 100 Indigenous women and two-spirit gender-diverse people working in subcommittees towards the action plan. I think that it is about “nothing about us without us,” and it is about an attitude that you are going to get a better document, you’re going to get a better policy and you’re going to get a better law if you have actually listened to people. I certainly think in MMIWG the people most implicated, the families and survivors circle, has been absolutely invaluable in their ability to get everybody onto the same page.
It is going to be a work in process. Then we’ll have to do the implementation plan for the national action plan, which will also require serious co-development. In both things, senator, the issue is “is it effective?” but also “is it accountable?”
Working with our partners on the accountability framework to make sure we are doing what we said we would do will help answer the question, “Are we getting results?” The money that we were able to acquire for MMIW last year in the supplementary estimates and now in the budget will allow families and survivors to work with us to keep the document evergreen. They’re able to answer questions like “Is this improvement?” and “Are we moving toward not only the outcomes but the causes and the causes of the causes?” That means you work with partners on the accountability framework, and we will see that as we work toward the action plan for Bill C-15.
Senator Patterson: Welcome to the ministers. Thank you.
Minister Lametti, the language in subclause 2(3) has been the source of confusion and alarm for some witnesses and intervenors. As you know, it states:
Nothing in this Act is to be construed as delaying the application of the declaration in Canadian law.
In subsequent briefings given to me by your senior officials, it was explained that this only confirms the declaration as an interpretive tool for federal laws.
Can you confirm that this bill does not make UNDRIP law, does not create a new suite of rights, and in fact only binds the government to creating an action plan without binding the Crown to additional actions or presupposing the outcome of the action plan development process? Thank you.
Mr. Lametti: Thank you, senator, for that question.
I will confirm that this is already an interpretive document that could be used by Canadian courts from the time that it was adopted by the Harper government.
This piece of legislation further confirms that. By bringing it into specific implementing legislation, we have reinforced that interpretive role and given greater weight to it as a document. The declaration itself, as well as the rights contained in the preamble, have interpretive force in Canadian law.
It also binds us. To that extent, this is implementing legislation. It enshrines the principles that are contained in this legislation, but it is true that we will need to develop an action plan that aligns specific federal laws with the principles that are enunciated in the declaration. We’re adopting the principles. The actual mechanics of it will have to be done in various kinds of legislation, which will have to be done through the action plan.
Senator Patterson: I have a quick follow-up, if I may.
Speaking of the action plan — and thank you for that answer — in the briefing your officials provided to the official opposition, they were asked specifically about the action plan, which they now are committed to implementing in two years.
In my critic’s briefing, Ms. Leduc told me there was no federal intent to seek consent before finalizing that action plan. Can you confirm that what I was told by officials is correct? Also, would all Indigenous representatives agree with that interpretation? Thank you.
Mr. Lametti: What do you mean by consent, senator?
Senator Patterson: FPIC.
Mr. Lametti: FPIC is a provision in the declaration with respect to economic resource development, but FPIC is also a metaphor —
The Chair: I’m sorry, minister. The time is over. I would like to turn now to Senator Stewart Olsen.
Senator Stewart Olsen: My question is for Minister Bennett. Your government has placed an emphasis on a nation-to-nation approach with Indigenous peoples, and many have argued that this reinforces the sovereignty of Indigenous nations. Sovereignty as defined by Merriam-Webster includes “freedom from external control” and “supreme power.” However, what I heard from your colleague and officials is that jurisprudence continues to prevail. I believe Mr. Lametti mentioned that today as well. Can I confirm, then, that your government does not agree that sovereignty in the context of Indigenous nations includes freedom from Canada’s jurisprudence and the Constitution?
Ms. Bennett: Right from the beginning when we went to the UN exactly five years ago, it was very clear. I think what I said then was, “I’m here to confirm that we’re a full supporter without qualification. We intend nothing less than to adapt and to implement the declaration in accordance with the Canadian Constitution.”
I think that also starts to answer Senator Patterson’s question that this is within the Canadian Constitution. I’m sure Minister Lametti has a better answer than I do. Again, it really goes along with section 35 rights are not optional and that we’ve got to figure out how to do this in a clear way that all Canadians understand.
Senator Stewart Olsen: Just as a quick follow-up, if I may, I would imagine, minister, you can see by my confusion that a lot of people are confused by this. The whole bill appears to say a lot of things, and hopes are very high for this. I don’t want those hopes to be dashed again, like so many times. I’m not sure how you proceed is going to give anything concrete in the end.
Ms. Bennett: I think it confirms the idea of “nothing about us without us.” Indigenous people should be at the table on all policies and the formation of laws that affect them. That is the way forward.
I think Minister Lametti, as the professor and most experienced on this, could weigh in and reassure the senator. Minister?
Mr. Lametti: Thank you. The way I would frame that is that this declaration and the work we’ve done around it —
The Chair: Your time is up again, minister. I apologize for that.
Mr. Lametti: It’s all in self-determination.
The Chair: I will go to Senator MacDonald.
Senator MacDonald: Minister Lametti, a cornerstone of the federal Indigenous rights policy has been to work for certainty when it comes to Indigenous rights. However, in relation to this bill, you have stated that the meeting of free, prior and informed consent will be contextual and that the declaration is interpretive. It’s not being made into law.
This suggests that the issue will certainly be litigated, probably multiple times in different contexts. Let’s take the moderate livelihood fishery debate in Atlantic Canada as an example. Both the Marshall and the Marshall II decisions clarified that such a fishery will be subject to regulation by the Minister of Fisheries, Oceans. Chief Michael Sack has maintained that:
We’ve had a firm line that we’re not going to accept a DFO licence, we’re not going to fish in a DFO season that they’re trying to outline or impose on us.
Arguably, any attempts to regulate such a fishery by the DFO will be weighed against the free, prior and informed consent of Chief Sack’s nation. In this very specific case, is the position of your government that the Supreme Court decision should be upheld in Canadian jurisprudence?
Mr. Lametti: Thank you for that question, senator.
I have said publicly on a number of occasions that I believe there is going to be a positive symbiotic relationship between the jurisprudence of section 35 under the Constitution Act and the principles that are contained in the declaration and that both of them will mutually reinforce each other and push us into a better interpretive place.
Free, prior and informed consent is a process. You can’t simply define it at the outset. As Minister Bennett and I have both said, this ensures that Indigenous peoples are at the table from the outset — in this particular case, on resource and economic decisions that have an impact on them. It’s through that process, which we will continue to improve over time, that we will get to better decisions and better use of resources in such a way that really recognizes and values the contributions of Indigenous peoples and benefits them. Because that hasn’t been done so often in the past.
It’s about a contextual process. It is about working together and engaging to work together in a way that puts everybody in a better place — Indigenous and non-Indigenous. That makes for not just a better set of outcomes but a fairer set of outcomes and certainly more in conformity with the principles upon which we are trying to build a country.
Senator MacDonald: In light of that, I’ll ask you a supplementary question. Do you believe that the declaration as an interpretative tool, as you’ve called it, does not overrule these decisions?
Mr. Lametti: I said that at the outset of my remarks. These decisions will continue to stand, but future decisions will be interpreted in light of the section 35 jurisprudence, in light of laws and in light of the principles that are contained in the declaration. A great number of these practical decisions will be worked out on a number of different existing pieces of legislation in the action plan. We commit to working with Indigenous peoples in the variety of forms that Indigenous governments exist in Canada to do just that —
The Chair: Minister Lametti, I apologize. I will call on Senator Coyle.
Senator Coyle: Thank you very much to Ministers Bennett and Lametti for your hard work and remarks today and for reminding us that this is really a critical bill for our reconciliation agenda in Canada.
My question is for Minister Lametti. It’s along the same theme, and we’re going to be on this theme, I think, for this whole period of study. The reports stemming from consultations on the bill noted that the government heard from some that the action plan could provide an opportunity to develop a shared understanding of free, prior and informed consent. Could you elaborate a little further on your own view of free, prior and informed consent and how you would view this being developed within that process of the action plan development? Thank you, minister.
Mr. Lametti: I’m not going to presuppose what might happen in the development of the action plan because that’s going to be in dialogue with Indigenous partners across Canada in, as I said, the variety of forms of Indigenous governance and leadership, but that is precisely the point, isn’t it: that we sit at the same table from the beginning and work out decisions in dialogue with each other, depending on the decision that needs to be taken, for everything that has an impact on the lives of Indigenous peoples and their communities, and in particular those decisions that affect Indigenous communities most directly.
That’s an engagement that this document enshrines. I think it’s the right engagement. I think, frankly, it’s more than 150 years overdue. We need to ensure that that happens all the time, most particularly with respect to resource and economic development but metaphorically for everything that touches upon the lives of Indigenous people. It’s about dialogue.
That’s the understanding that Indigenous peoples first had when Europeans came to these lands, and frankly we haven’t lived up to that. This document gets us back to where we should have been about being in dialogue and working through processes with Indigenous peoples to make everyone’s lives better, but also ensuring that, in particular, decisions that very directly impact Indigenous peoples aren’t made without them.
Senator Coyle: Just as a follow-up about those engagement sessions, I’m curious — and you did mention the impact in the preamble to the bill — as to whether there were other significant impacts that came out of those engagement sessions that you’d like to speak to now. Thank you, Minister Lametti.
Mr. Lametti: Minister Bennett outlined a number of them in her talk. There were significant changes in particular to what was added to the preamble as enshrining the context for the bill that came out of those engagement sessions. As well, we said from the beginning that our engagement would not end when we tabled the bill, and the amendments that were brought also reflect Indigenous involvement.
Senator Forest-Niesing: Thank you to both ministers for being with us to talk about this incredibly important bill.
You must feel like you’ve answered every question many times, and I’ll probably give you an opportunity to repeat on another theme: consultation. There are two opportunities for consultation. I’ve read with great interest the report of the consultations that have occurred to date in the What we Heard report.
My question is, what definition do you place on the term “consultation?” Many consider consultation to be an opportunity to be heard, and others expect that consultation means that their preoccupations will be considered and incorporated ultimately into the final action plan. I would like to hear about how you would define the consultation process that you anticipate. Also, given the diversity that exists within Indigenous peoples, how do you plan to ensure that that consultation will be representative of that diversity?
Mr. Lametti: I assume the question is directed at me, senator, but obviously, Minister Bennett, you should chime in if you think I’ve missed something.
Senator Forest-Niesing: It’s probably best to have you answer first so that you don’t get interrupted. It seems you’re always the one who ends up with the countdown.
Mr. Lametti: Meaningful dialogue is what I would consider to be the basis for consultation — being heard, being considered, sometimes having an impact, not all the time, although it’s in that dialogue that you assess what is most important and how you can incorporate. That would be the leitmotif of what we would try to do in the action plan, and that’s something that I would certainly work to enshrine in the action plan. That’s something we have tried to do in this process with respect to UNDRIP itself.
Again, constrained by a minority government, constrained by COVID and other time constraints — which involved a change of strategy in the middle — we have done our best to consult with the variety of forms of Indigenous governments, as I mentioned in my remarks, with treaties and modern treaty nations, right holders and Indigenous organizations of a national and regional scope. We did our best to reach across, as far as possible, before tabling. Those consultations were meaningful. They had an impact on changes that were made to the bill, and we continued afterwards, and we’re still continuing.
Senator Francis: Thank you, ministers, for attending.
This question is for both ministers. This bill would require the federal government to, in consultation and cooperation with Indigenous peoples, prepare and implement an action plan to achieve the objectives of the declaration within two years. What would this process entail exactly? Would it include a recourse, remedy or oversight mechanism?
Mr. Lametti: Thank you, Senator Christmas, for that question.
This is something that has been raised by a number of Indigenous leaders at a variety of levels, but in particular I would say by the leadership of ITK and their president, Natan Obed. I have certainly committed to him personally, as well as during the process, to do my best to undertake that — we’ve done some preliminary work — in the elaboration of the action plan.
Again, the action plan would be based on a variety of consultations. It would be a distinctions-based approach between First Nations, Inuit and Métis peoples as well as the variety of forms of leadership that exist within each of those three larger Indigenous communities. We would do our best to engage in meaningful dialogue.
Part of the point of the declaration is to have meaningful recourse for the interpretation and, I suppose, decision-making on whether the rights have been met. That’s something we would take seriously. Those discussions would be a very serious part of the action plan as we move forward.
Senator Francis: I am wondering if Minister Bennett has anything to add to that.
Ms. Bennett: I think the word “meaningful” is the most important thing. It is about asking, not telling. It is about listening and then trying to achieve consensus with what we’ve heard as we develop the action plan, including which laws in Canada need to be made in keeping with Bill C-15 and the declaration. There will be priorities by different Indigenous groups and scholars that will be very clear about what they want us to move on first, and that determines the action plan of what, by when and how as we go forward.
The Chair: Thank you.
Senator Anderson: I am speaking to you from my own home community of Tuktoyaktuk, the traditional territory of the Inuvialuit.
This question is for Minister Lametti. How does Bill C-15 interact with negotiated and constitutionally enshrined modern treaty rights? Is there any risk that the rights clarified in the settled modern treaty will prejudice those rights holders against the recognition of additional rights set out in the UN Declaration of the Rights of Indigenous Peoples? Also, what impact will this have on rights holders who have not yet reached a settled agreement?
Mr. Lametti: Those are very good questions, and I thank you.
It is our view that this declaration only has a positive impact on current treaty rights, whether they be the older treaties or modern treaties, and nothing in this declaration is meant to, in any way, derogate from those various rights.
Moving forward, as I mentioned with section 35 in answer to a previous question, we feel that the principles enshrined in the declaration will reinforce and allow for the development of those rights — in this case, modern treaty arrangements — to continue to develop and flourish. This should in no way impede the further negotiation or settlement of other modern treaties moving forward.
This is a human rights document that enshrines a set of basic principles that I think will amplify and support existing rights under whatever structure — treaty, non-treaty, et cetera — but that will also help push through meaningful dialogue, better results in other treaties that might be negotiated down the road.
Senator Anderson: Thank you for that.
Senator Tannas: My question is for Minister Lametti. I wondered if you could help us by giving your thoughts around the meanings and potential differences, if there are, between Aboriginal title lands as we understand them in Canada and territories as written in the declaration. Are they the same? Is there any difference in the government’s view between those two definitions?
Mr. Lametti: I don’t publicly give legal opinions. I taught in that area for many years. However, those terms have a particular meaning, whether it’s title lands, rights lands or other territories. They’re all going to be subject to interpretation and meaningful dialogue in the action plan as we move forward.
Senator Tannas: Good.
Mr. Lametti: We didn’t want to lose anything at this stage in the document.
Senator Tannas: I get it. That makes sense to me.
One of the worries — and I’m hoping this will be on the to-do list — is that, particularly in B.C., we’ve got territories that overlap and are disputed. If you are somebody looking to do a project, we’ve seen overlapping territories. Who, then, is giving consent, and who within the organizations is giving consent? We saw that issue with Wet’suwet’en. All of that is a pretty big tangled question. Will that get sorted out? Will there be some clarity around all of that through the various bits and pieces of legislation that need to be developed in order to fully implement the declaration?
Mr. Lametti: Senator Tannas, I thank you for the question as well as the example you’ve given.
I firmly believe that through the kinds of meaningful processes that we will put in place, working with Indigenous peoples and various forms of leadership, working with provincial governments like B.C., which has implemented the declaration, that we will be in a better place. I have said to industry stakeholders in British Columbia that this will help us understand who our dance partners are, how to work with them and how to define the dance. All of that is positive as we move forward. If we sit at the table from the beginning, we will avoid the kinds of situations that we have tragically seen in the past.
Senator Tannas: Thank you.
Ms. Bennett: I would like to add that the work we are doing on self-determination and nation-rebuilding is about the people. The people decide who speaks for them. We actually have to move forward in a way that is about sorting out that Canada does have a durable partner in taking these decisions together.
Senator Hartling: Good morning, and thank you very much, ministers, for being with us today and sharing your knowledge. I hear your enthusiasm and your passion around this bill, as well as the message about reconciliation.
My question is simple but complex, so you can answer whichever parts you can. In your opinions and experiences, what might be some of the challenges or obstacles that we need to be aware of to bring Bill C-15 to law? We’ve been down this road before. I’m just wondering about your ideas and thoughts on that. Thank you.
Mr. Lametti: I’m happy to jump in first, Carolyn, if you want to add after.
The challenge in terms of getting this into law is to not let perfection be the enemy of the good. The fundamental question for all of us is whether this piece of implementing legislation puts Indigenous and non-Indigenous peoples in a better place and puts into place processes or sets mechanisms in motion to get us to better places and really respects the promise of reconciliation. If we’re aiming at perfection, it will die again somehow. I don’t want that to happen. I’d rather work out perfection over time than have it all at once.
Ms. Bennett: We will see the example of particularly some of the resource companies that learned very wisely that having Indigenous partners at the table at the beginning of a project actually either ensures the project happens or they will find out early on that it won’t work. The way that it now works in our North, as Senator Patterson and I did a session at the UN a couple of years ago, means that if you don’t do that, you end up in court with very costly, lengthy court cases, or blockades and all of those things. To do this is just a wise practice for any of the companies who will find out that this is a non-starter, that it can be improved or that there is a real green light with their partners. I think those more progressive companies are finding out that it’s actually the wisest path and that everyone will learn from their experience.
Senator Hartling: Thank you.
Senator McCallum: I want to start off by saying that I’ve challenged many of the laws that have come into the Senate, and I know that people see me as being a difficult person, but that comes with the position of senator and a First Nations woman who has lived under oppression from federal and provincial policies and loss, including residential school, and the result has been one of distrust.
The forward movement of Bill C-91 and Bill C-92 has not occurred in our province. Therefore, I find this bill scary because of the fear that the relationship that exists between the state and Indigenous peoples won’t improve. And yet, hope remains high. The articles are the heart of the UN declaration and are of critical importance.
Minister Bennett, when asked about the concept of free, prior and informed consent, you stated there is nothing about free, prior and informed consent in the legislation itself and, as FPIC is explained in the declaration, it is not necessary to explain it again in the bill. I, as well as many First Nations grassroots people, found these comments to be concerning. Essentially, the belief held by community members in response to these remarks is that the articles of UNDRIP will have no legal standing. As UNDRIP is simply an annex to Bill C-15 and only the numbered sections of the bill will have the force of law, it follows that the articles of UNDRIP then would not have the force of law. This reality seems to support your view that since FPIC is not in the numbered sections of the bill, there should be no fear it could amount to a veto.
Could you please comment, confirm or deny whether or not the articles of UNDRIP will have no legal standing as they are only found in the annex? This is a different placement of UNDRIP in the annex and that’s different from 262. Thank you.
Mr. Lametti: If I might jump in as the Minister of Justice and the lawyer in the room, I would assure you that these articles already have legal standing. They have interpretative force in Canadian law already as a result of the Harper government’s adoption of the treaty, which I support wholeheartedly. They will have additional force as a result of the passage of Bill C-15. The point of Bill C-15 is to adopt implementing legislation for the declaration so that the declaration’s text in an annex does not affect that legal status. It still has status.
Moving forward, there is a commitment in the legislation to adopt an action plan to bring Canadian law, past and future, into alignment with the principles that are stated in the declaration. I know we need to build trust. I know that there has been a distrust that has been sown for so many reasons. We will work on that and we will continue.
Senator Pate: Thank you to both ministers.
I’m pleased to come to you from the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
As you both know, several Indigenous activists and politicians have indicated that, in their view, the United Nations Declaration on the Rights of Indigenous Peoples recognizes legal pluralism and that the rule of law would not necessarily mean Canadian law once Bill C-15 is passed and that Indigenous peoples would be able to determine legality, for example, with respect to resource extractions in terms of Indigenous law as well.
In your view, how would you define the rule of law under the United Nations Declaration on the Rights of Indigenous Peoples through Bill C-15, and will Bill C-15 in application allow Indigenous peoples to determine legality in terms of Indigenous law or will Canadian law remain the sole legal system in your opinions? Thank you.
Mr. Lametti: Thank you, Senator Pate, for that question.
Canadian law isn’t the sole legal system already. One of the things I have been trying to do as Minister of Justice is to implement Call to Action 50, which means supporting and investing in the flourishing and re-flourishing of Indigenous normative systems, which have existed and have always existed. The declaration helps to enforce that process of self-determination at a multiplicity of levels, including the juridical level.
That being said, in the bill there is a recognition that section 35, that Canadian federal and provincial law also still continues to exist, and they will continue to be the last word in a number of different contexts. The point, though, in bringing this legislation forward is to ensure that there is a process, a meaningful dialogue, on all of these decisions prior and that we get to a better place that respects the self-determination and the will of Indigenous peoples in their path forward with non-Indigenous peoples.
Ms. Bennett: I would like to add that as we move to self-determination and nation rebuilding, Indigenous laws, customs and practices are really part of them developing their constitution and their ability in self-determination. I think that’s the reason why Minister Lametti and I and others investing in the Legal Lodge at the University of Victoria with John Borrows and Val Napoleon. We need to be able to do that. I think that maybe we all have an idea that, one day, in terms of civil law, common law and Cree law, all of those things will inform the best possible jurisprudence going forward. It’s an exciting time as we all learn more about Indigenous law and the kinds of ways that decisions were taken before the settlers showed up.
The Chair: Thank you, Minister Bennett.
Unfortunately, we don’t have time for a second round. The officials are going to be with us for the second panel, so we can start questioning there. I wish to thank the ministers for meeting with us today.
We’ll continue on with our next panel of officials from Crown-Indigenous Relations and Northern Affairs Canada and the Department of Justice Canada who are here to answer questions.
On our second panel, from Crown-Indigenous Relations and Northern Affairs Canada, we have with us Ross Pattee, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada; and Marla Israel, Director General, Crown-Indigenous Relations and Northern Affairs Canada. From the Department of Justice Canada, we have Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice Canada; Sandra Leduc, Director and General Counsel, Aboriginal Law Centre; and Koren Marriott, Senior Counsel, Aboriginal Law Centre, Aboriginal Affairs Portfolio.
Department officials will not have any opening remarks. This panel will only be a question-and-answer session with senators, for approximately three and a half minutes per senator. The first question will again be asked by the sponsor of the bill, Senator LaBoucane-Benson. The second question will be asked by the critic of the bill, Senator Patterson. If other senators have questions, they’re asked to use the raise hand feature, as they are well acquainted with, on Zoom to signal this to the clerk. This will be acknowledged by Zoom chat, and please note that APPA committee members will be given priority on the list of questioners.
Again, any written follow-ups to questions should be submitted to the committee clerk by no later than May 30, 2021. The committee staff will advise the chair by text when there are 10 seconds remaining for the senator’s questions and answers. I will do a 10-second hand countdown and, when I reach zero, I will advise that the time is finished.
I would now like to invite Senator LaBoucane-Benson for the first question, followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: Thank you to the officials for joining us today.
My question is for the Justice officials. Can you explain why the non-derogation clause in the bill is different from the non-derogation clause that is in the actual articles of UNDRIP? Thank you.
Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice Canada: Thank you very much.
The question relating to the non-derogation clause gives us a chance to speak to clause 2 of the bill, which does use language that is found in other federal statutes, recent ones that you would have seen such as Bill C-91 and Bill C-92. It reflects the recommendations of the Senate in 2007 in terms of language for non-derogation clauses and is more adapted, shall we say, to the Canadian context than the UN declaration’s language that speaks to diminishing and extinguishing rights. Instead, we’ve used the language familiar to Canadian law of not abrogating or derogating. Thanks.
Senator LaBoucane-Benson: Thank you.
Senator Patterson: I see Ms. Leduc is with us again, and I thank her for the critic’s briefing I got.
As I stated in my question to your minister, I was told by you that it was never the intention of the government to seek consent from Indigenous representatives on the action plan and that in fact all the bill requires is that the government work in collaboration with Indigenous partners. Therefore, I’d like to ask you if you can provide further clarity as to whether or when Indigenous organizations were made aware that the federal view is that consent is not necessary prior to finalizing the action plan. What response did you receive to that assertion? Did any Indigenous representatives agree that their consent will not be needed before the action plan is finalized? Thank you.
Ms. Sargent: As the ADM responsible in the Department of Justice, I’ll begin and, of course, ask Sandra if she wishes to clarify.
My understanding is that the comments made in the briefing would have been more to the effect that we would be working in cooperation and consultation with Indigenous peoples, as the declaration and the legislation require. The issue of whether consent of each individual nation would be sought is not one that we’ve had conversations with Indigenous leadership about specifically.
Of course, we all recognize that there is deep interest and desire on the part of all Indigenous peoples to participate in this process. That is still to be worked out in terms of the modalities, but it is a process that’s going to require, as I think Minister Bennett referred to, meaningful participation, seeking to get consensus at a national level. This is going to be a complex undertaking, and we will be guided by the principle of free, prior and informed consent, as well as the concepts of consultation and cooperation. Thank you.
Senator Patterson: In a briefing to parliamentarians, officials stated that there’s no legal penalty for missing the two years. We were told that officials will work very hard to meet the time frame mandated, but the timing would be dependent upon the pace of engagement with partners. Can you confirm that the two-year deadline could be missed if engagement takes longer, or is it your intent to limit engagement with rights holders to whatever you feel is allowable within the time frame?
Ms. Sargent: I’ll start in responding and then turn to my colleague Ross Pattee, who may wish to add.
This time frame set out in the legislation is, of course, what the government will be guided by. It is the case that these types of legislated time frames are generally addressed or consequences of not meeting them are addressed in parliamentary process and the fact that Parliament will itself make its views known if the time frame is not met. However, officials and government will be doing its utmost to meet the time frame in the legislation.
Senator Stewart Olsen: This question is for the officials, and it’s to do with the consultations. I have seen that some governmental organizations were consulted. There were many people who were not. There were a lot of organizations and there were many people who said they just found out the same day. I can give you some examples, if you wish. The Confederacy of Six Nations stated Bill C-15 was introduced with no warning to the nations. The Qu’Appelle Tribal Council noted in its brief that it was introduced in the House of Commons after brief and very limited consultations. Do you have a list of those you will consult and how you will fit that into your time frame of two years if the original consultations couldn’t speak with everyone who felt they should be heard?
Ross Pattee, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada: Perhaps I can jump in here. There are really two parts to this.
Given that the government was fully committed to introducing the bill during the calendar year last year, it was important that we compress and get all of the consultations done within that time frame. Now we’re moving forward into co-development and working together on an action plan and, indeed, it will require us to make sure that all those Indigenous voices are heard.
The work is already under way to assess and determine how we’re going to work together to make sure those voices are heard. That has to include national and regional organizations. It has to include all the organizations, including those you just mentioned, senator, whether it be women’s groups, whether it be LGBTQI2-S. We also want to ensure that voices from modern treaty partners are heard and all section 35 rights holders. As the declaration states, this is about the rights of Indigenous people, so the individual voices of Indigenous peoples will also have to be heard. We’re confident that we’ll have a process that allows for that engagement, and we know now it’s likely to be within the two-year period. Thank you.
Senator Stewart Olsen: If I could follow up with an observation: I have the utmost respect for the work that you do and the incredible difficulties, but I really wonder how this can be expected of you in a two-year time frame. I would rather hear people from all over the country and make sure that groups aren’t missed. Will you release a list of the people you are consulting to all parties — the House of Commons and the Senate — so that we can perhaps have input into that?
Mr. Pattee: Yes. We already have a list of the folks that have been —
The Chair: I’m sorry, Mr. Pattee. Time has expired.
Mr. Pattee: I apologize.
Senator Francis: This question is for the Department of Justice Canada. Could you please clarify whether the preambular paragraphs and operative provisions in the bill would have legal effect or significance in Canadian law? If so, in what ways?
Ms. Sargent: Thank you, Senator Francis.
Very basically speaking, the preamble does have effect. It is the context in which the bill will be interpreted, and it informs how the bill will be interpreted, the operative provisions. Those include, of course, the provision on the application of the declaration in Canadian law, which we’ve already discussed as being a source for interpretation of Canadian law; the action plan provision; the alignment of laws. Those are obligations on the government that will have to be met. And then, of course, also the reporting obligations. Thank you.
Senator Coyle: Thank you to our witnesses for your work with us here today and all the work you have been doing and will be doing hopefully when this bill is passed.
I’m not an expert on this, but I’m curious in what way the current interpretation of section 35(1), protections of Aboriginal and treaty rights, is different to the standards set out in UNDRIP. I’m curious also whether this will be changed through the passage of Bill C-15, and if it will in any way, how will it? Just that relationship between those. Thank you.
Ms. Sargent: Thank you.
It is, I think, important for us to remember that section 35 of the Constitution Act, like other provisions of the Constitution, are concepts that develop over time and that are interpreted over time and don’t have a full and clear meaning when you just read the text. I’m saying very obvious things, but that’s part of what the UN declaration does and how it has been articulated by Indigenous experts as well as Minister Bennett, Minister Lametti and others. In other words, it really breathes life into section 35. It can be used to interpret and inform and, frankly, give us a sense of that full box of rights, the way in which section 35 and other provisions of our Constitution and legislation can be interpreted and developed going forward.
Senator Coyle: Would you say that it would then really enhance and further fill out some of the spaces around that interpretation that isn’t there yet?
Ms. Sargent: I think that would be a very good way of putting it, yes.
Senator Coyle: Thank you.
Senator Forest-Niesing: I’d like to bring us back to the two-year time frame for the action plan. You’ve already spoken at some length about the consultation process that would, obviously, be the first step in the development of that action plan. I’m particularly interested, though, in your sentiment or your concerns, if any, about the reduction of the time frame from three years to two years, given the magnitude of that task. Consultation is step one, but there is full development of the action plan that must follow that. Do you consider that that’s sufficient time?
I’ll ask my supplementary question now. What, if any, lessons are being drawn from the B.C. experience, and to what extent does that give you a bit of a head start in the development of the action plan, if at all?
Mr. Pattee: Thank you very much, senator. Those are both excellent questions.
I just want to remind folks that the original proposal was that the action plan should be implemented up to three years, so we always knew that there could be a shorter time frame.
In terms of the proposal for two years, we’re quite confident and not overly concerned that we’ll be able to do that. Indeed, that work is under way right now. We’ve already started discussions on how we’re going to organize ourselves with a variety of the key players, so that work is under way as we speak.
In terms of the lessons from British Columbia, they’ve been very strong partners throughout. We speak regularly with officials from the Province of British Columbia. We’ve been working with them to look at ways that we can learn from their process forward. One of the ways that we’ve learned is that we are now working on the pathway forward for the action plan as this is making its way through the House of Commons and the Senate. We’re not waiting until Royal Assent. So that’s one of the key lessons that we’ve learned. Thank you.
Senator Forest-Niesing: That’s very encouraging. Thank you.
Senator MacDonald: Any of the officials can answer this question. Last December, in a briefing for parliamentarians, representatives from the Department of Justice stated that Bill C-15 respects Canadian jurisprudence, while officials from NRCan stated that the bill does not create requirements for industry, just government. But in the Wet’suwet’en dispute, proponents of the pipeline entered into agreements with all the elected chiefs and councils along the approved route, yet hereditary chiefs maintained they had not given their free, prior and informed consent required for the pipeline. This was a provincially approved project in a province that has implemented UNDRIP. Are you concerned, if consent was unclear in this case, about the level of uncertainty that may now be introduced across the country in a similar circumstance? That is to whoever wants to answer.
Ms. Sargent: I will start, and, of course, if my colleague from CIRNAC would like to add if there’s time.
I think we see, and the ministers have already said, that the processes that Bill C-15 would put in place, collaborative processes in which we are really rolling up our sleeves together to address some of the most challenging issues that still remain with respect to governance and with respect to Indigenous self-determination and rebuilding of nations, all of those can contribute to greater predictability going forward. It is a process. It is one that will be worked out through a lot of dialogue, as our ministers have said, but we don’t see it as creating more uncertainty. If anything, it should lead us to a path of greater predictability. Thank you.
Senator MacDonald: The concern has also been raised of the matter of consent that may or may not be required in relation to traditional territory, where the duty to consult currently applies in varying degrees. How do you envisage the free, prior and informed consent applying in relation to traditional territory versus land over which there is title?
Ms. Sargent: In terms of these legal questions, the duty to consult jurisprudence already speaks to both actual and potential infringements or impacts on Indigenous rights. That includes title. That includes harvesting and other rights. So already there’s a sense of scope that goes beyond just title lands but includes them.
We would expect that this legislation will lead to ongoing conversations about how to resolve some of the issues around uncertainty in relation to different aspects of traditional territory, but we’ll continue to be guided by the section 35 case law as well, which does have specific requirements in relation to Aboriginal title lands as set out in Tsilhqot’in, among other cases. Thank you.
Senator Tannas: When we were reviewing Bill C-262, we had agreement amongst the legal scholars that Bill C-262 would, effectively, the next day, the day it was proclaimed, append the UN declaration to every law on the books of Canada. The word, actually, that Professor Borrows used was that it was appended to every law. Professor Newman confirmed this. Justice Major said the same thing in a written brief. All of that led a number of people to worry about legal chaos the day after all this came and that everybody would be running to court with a new set of tools. Can you confirm for us that it is your view that, on the day after Royal Assent, this bill will not put us in that position of a festival for lawyers and legal chaos, as we heard before?
Ms. Sargent: Thank you, Senator Tannas.
I would just go back to what ministers said in relation to this bill, which is that it confirms that the declaration can already be used to interpret Canadian laws — federal, provincial and constitutional. We have case law already that says that. Therefore, we would say yes, as the minister said, we are reinforcing that view but otherwise that it is reflective of the state of our current law and an important commitment on the part of the government to take positive action to align legislation with the declaration going forward. Thank you.
Senator Tannas: Exactly. So lawyers shouldn’t be getting excited about running into court on behalf of their clients the next day. Right?
Ms. Sargent: I am not in a position to comment on the legal profession generally. You will have your views, but I can obviously speak to what we believe the intent of this legislation is, which is to provide a framework for this going forward. Thank you.
Senator Tannas: We’re confirming what is already a document with application in Canadian law.
Ms. Sargent: Certainly the provisions that speak to that, clauses 2 and 4, indeed. Thank you.
Senator Anderson: My question is for the Department of Justice. How does the duty to consult, as defined through the courts in Canada, interact with the UN declaration provisions on consultation? Does the draft of Bill C-15 apply the term “consultation and cooperation” in the same way the declaration does?
Ms. Sargent: I will try to take each of those in turn.
The duty to consult as it relates to the UN declaration — again, as was already stated by ministers, we would see that the duty to consult is already in place in Canadian law, that there is much similarity between what is required already: free, non-coerced decision-making; prior information for Indigenous rights holders and nations who may be impacted by measures; and, of course, also informed by information provided to them. All of those are requirements already under the duty to consult.
Then, with respect to consent, that is where the free, prior and informed consent may in some cases go beyond the duty to consult and how it’s been interpreted to date. But as Minister Lametti noted, section 35 can and will evolve. We know as well that consent can already be required in cases of title and in cases where treaties require it. It’s a complex area. We see much alignment between the two, but there’s definitely also recognition that we will need to develop new processes, as has been mentioned, going forward that fully reflect the declaration.
I fear I may be running out of time, but in terms of consultation and cooperation as used in Bill C-15, perhaps the best I can say is that, as we’ve just said, we expect the declaration will inform the interpretation of legislation. I’m not trying to do this in a circular way, but it is absolutely true that we would expect the interpretation of those terms to be aligned with how the declaration uses them and how it’s being interpreted internationally as well by experts in the expert mechanism, in UN permanent forum and so on.
Senator Anderson: Thank you.
Senator McCallum: Land and resources are at the heart of conflict and always have been. Forcible removal of Indigenous peoples from their lands and territories without their free, prior and informed consent still remains common practice today. We have seen that Indigenous people could not practise a veto in this instance. Why is it that resource extraction is complaining about a veto when it was never an absolute in our lives? How else did the government get us into residential schools? How is it that there are toxic disposal sites in and around Indigenous communities and that the non-Indigenous communities got to veto these from their backyards but not ours? My question is, why are resource extraction companies allowed to veto the concerns of First Nations even after “consultation” and proceed with development? How will this conflict finally be addressed? Thank you.
Ms. Sargent: Thank you, Senator McCallum.
I will just acknowledge that, of course, these issues of displacement and removal of Indigenous peoples from their lands are part of Canada’s history. I think the best we can do and say is that this legislation and the declaration itself speak to the fact that, going forward, this should not be the reality and that free, prior and informed consent of communities is crucial in relation to all decisions that impact Indigenous peoples. I do think that, in the engagement we did with national resources sectors, we heard that they were taking steps to ensure that they will be integrating these concepts into their work going forward.
I will ask if my colleague Ross Pattee has anything he wants to add. Thank you.
Mr. Pattee: Thank you.
We’ve been working closely, as Ms. Sargent said, with industry. There are a lot of lessons to be learned about how they’re making progress towards working on consultation and engagement with Indigenous partners on projects as they go forward. It’s really important for us to look closely at those successes. Thank you.
Senator McCallum: I want to tell you that this is not part of our history. It continues today when we look at the extraction companies. They continue to invade First Nations’ land. Provincial and federal governments continue to allow this to happen. Third-party interests hinder progress of the land claims process. Some of these have been ongoing for 20 years. I just want to say that it’s ongoing. The violence is ongoing, and that’s part of our lives today. Thank you.
Senator Pate: I’m curious. As many others have already identified, free, prior and informed consent remains undefined in Bill C-15. As the Department of Justice articulated in the house hearings on Bill C-15, it is to be understood in context, thus preventing a singular definition. But the B.C. legislation on the UN declaration provides an example of how free, prior and informed consent has operated in practice. What are your plans for operationalizing meaningful free, prior and informed consent in the national action plan? How would you respond to critiques that have been made that a definition of free, prior and informed consent is required to provide certainty?
Ms. Sargent: I will answer that last piece first and then see if my colleague wants to add anything.
In terms of the definition, Minister Bennett and others have already explained that really it’s a contextual concept that needs to be understood in ways that will vary depending on what we’re talking about, whether it be national legislation, whether it be resource projects, and that putting a definition in the legislation itself would not be appropriate and would be very challenging.
What I think she meant as well is that we would want to be doing so in cooperation with Indigenous peoples, and that is not something that we’ve been able to do to date. It’s something that I think is viewed as very much a part of the work that will be done in developing the action plan.
Perhaps I’ll turn it to Ross Pattee to see if there’s anything he’d like to add.
Mr. Pattee: Thank you very much. Thank you for that, senator. We agree that this is something that will be of great interest to Indigenous partners, and we also agree that it will be important that we discuss this and work this through as part of the action plan for sure, so thank you.
Senator LaBoucane-Benson: In my neck of the woods in Alberta, there has been a lot of concern raised around the effect of this bill on the treaty agreements in Alberta, Treaty 6, 7 and 8. I think it’s worth circling back to talk about what the effect of this UNDRIP bill is going to be on the numbered treaties, if any. I’m asking the Justice officials that.
Ms. Sargent: Thank you for the question.
It is certainly something that we also heard during our engagement with Alberta’s treaty nations and more generally also from modern treaty partners. I’ll just point to again the non-derogation clause that you highlighted in an earlier question as clearly stating that nothing in this legislation would derogate or abrogate from — by that we understand diminish or somehow alter — the rights that are already protected under treaties and constitutionally protected under section 35.
As our minister stated, we see this bill as really something that can add to and build on the protections and the rights already set out in those agreements and would look to the work that it requires in terms of addressing broader issues like discrimination in society, racism and the need to take measures in that regard as really enhancing and moving us forward in relation to the implementation of treaties. Thank you.
Senator LaBoucane-Benson: I know that the consultations did not stop when this bill was introduced. Can you talk about the consultations that have happened since the introduction and the plan going forward so that those treaty nations, those treaty leaders, feel like they have been heard and that what they say is reflected in the work of this bill?
Mr. Pattee: Maybe I’ll jump in here. Thank you very much for that.
My day job is to work on the implementation of treaties. This is a very important question. Both the modern treaties and, of course, the numbered treaties will be part of the discussion and the engagement of the plan as we move forward.
A number of other meetings have taken place to start to unpack how we’re going to work together. For example, with the Indigenous national organizations, we’ve already begun a dialogue on how we can look to work together to make sure that we can come forward with the best action plan possible. That work is under way. I’m confident that the modern treaty and numbered treaty concerns will be taken into consideration.
Ms. Sargent: I don’t know if there’s time for me to add anything to that.
The Chair: Go ahead.
Ms. Sargent: Just very briefly to complement, Minister Bennett and Minister Lametti have also been meeting with a number of nations and leadership all throughout the parliamentary process. I would just point to the amendment made in committee that recognizes that section 35 protected rights are not frozen in time and that they evolve. That was very much at the request of those most concerned, I think, about treaty rights and their ongoing protection and implementation in Canada. Thank you.
The Chair: Thank you.
Senator Patterson: Today I was told the opposite of what I was told in a briefing on the need for consent to finalize the action plan when you say you’re working toward consensus on a national level with respect to the action plan. If that’s now the case, I would like to ask, what is the definition of FPIC being used in this context? Specifically, whose consent are you seeking?
Ms. Sargent: Senator Patterson, I would just note that I do think that we have been consistent in what we have been saying in that this process that we would envisage going forward is going to require, of course, input and cooperative work — we’ve heard this stated by ministers as well today — from across the country, Indigenous peoples across distinctions and across various diversity lenses and considerations. It is a complex world to navigate, and it is one where we will be working together with Indigenous peoples to determine how we can have a process to develop an action plan that does reflect broad and meaningful consensus. Thank you.
Senator Patterson: I understand that. But I want to know, is it every chief and council or just the Indigenous national organizations, for example? How will you document that you have received that consent?
Ms. Sargent: As I think we’ve been saying, we don’t want to set out with a presumption about exactly how this is going to be developed. We need to engage with Indigenous peoples about the process itself. As my colleague Mr. Pattee has stated, we’re doing so in a preliminary way. But, of course, until this bill is actually adopted, we will be exploring but not determining the process at this stage. Thank you.
Senator Patterson: Mr. Pattee talked about the key players that have been approached about the action plan. Who are those key players, please, Mr. Pattee?
Mr. Pattee: As Ms. Sargent just stated, we are beginning that process now. We’ve reached out to a number of players, including Indigenous national organizations, to modern treaty partners, but the process is just beginning right now. As I stated earlier, it’s going to be comprehensive. It’s going to need to be comprehensive. We’ll have to look at other organizations that have a say or a voice, whether it’s women’s organizations, student organizations, LGBTQI2S organizations or section 35 rights holders. It is going to be a comprehensive process, and we’re beginning that journey right now.
Senator Patterson: Good luck.
Senator MacDonald: Minister Lametti stated that the federal and provincial jurisprudence continues to be the last word in a number of different contexts and that UNDRIP does not replace the federal government’s decision-making right. Can you confirm for the sake of clarity and certainty that previous court decisions will be upheld and that federal and provincial law continues to apply to all Canadians?
Ms. Sargent: I think I can do no better than just to restate what Minister Lametti said, which is that Canadian jurisprudence continues, of course, to apply in Canada. Yet, it can evolve, and that is recognized, and the declaration can play a role in that regard. Just as happens in the area of legal interpretation in all sorts of different areas, as society changes and evolves, so too does the law. It is important to recognize that there is that capacity for growth in the law, as Canadian courts have told us for a very long time.
Senator MacDonald: Just to follow up, again, when it comes to the use of the term “consent,” this is a core term that’s being used repeatedly. How does one apply a law using that core term when the term “consent” appears to have divergent definitions for different people and different stakeholders?
Ms. Sargent: I would take us back to the fact that this legislation does not itself use the term “consent” in the bill. It, of course, does append the declaration where that term, as part of the bigger picture of free, prior and informed consent, is used in many places in the declaration in different contexts and needs to be read as such in context.
I recognize that there would perhaps be some preference for some clear and one-stop shopping definition in Canadian law. That is not the case yet either, nor could we expect it necessarily to be because of the different contexts and ways in which free, prior and informed consent and the duty to consult play out, whether in relation to territories, to rights or to engage in various traditional and cultural activities or in relation to title lands. There are a variety of ways in which these concepts play out. It makes it very challenging to define in any one single way.
Senator Francis: This question is for the Department of Justice Canada. Some have argued that Bill C-15 changes the nature or character of the UN declaration by subordinating it to section 35(1) of the Constitution, which has understandably raised serious concerns. Is this an accurate legal interpretation? Could you also please confirm whether the process of reforming existing laws and policies would continue beyond the two-year deadline?
Ms. Sargent: Thank you, Senator Francis. I’ll start with the second question as it’s more straightforward.
In terms of the process for alignment of laws, that is set out in clause 5 of the bill. It does not have a two-year time frame on it. Therefore, we would expect that that process would continue. Indeed, there is no time frame on it; it would be a continuing and ongoing process.
In terms of the question about the declaration and its relationship with section 35 and the Constitution, this is something where, I think, from a legal perspective, international law and international legal instruments such as the declaration have their own status in international law. They are not subordinated in that way to domestic legislation. That would not be something that we would see as a correct understanding of what we were doing here. All that said, to become effective in Canadian law, this legislation serves the purpose of giving a framework for how that would happen in ways that can include its use in interpreting Canadian law but also this alignment of laws process that we’ve just talked about, essentially bringing the declaration home and making it part of Canadian law going forward.
Senator Francis: Thank you for that.
Senator Coyle: I would like to circle back to the point that our colleague Senator McCallum was making about trust. Trust comes from a variety of places. It comes from the results; it can also come from process. I’m interested in process here.
I live in Nova Scotia. There’s a real breakdown in trust in Nova Scotia right now with the Department of Fisheries and Oceans and First Nations moderate livelihood fisheries, peoples and communities. Some would say that part of that breakdown in trust has to do with the lack of experience, for instance, within DFO. That experience may be stronger in Crown-Indigenous.
How have the Department of Justice and Crown-Indigenous worked together thus far in the process of engagement to get us where we are now? How are you working together at the moment? Then, how will you work together going forward, if at all, on developing that action plan? I realize and you’ve told us that you’re going to be guided by a number of Indigenous leaders who will help prescribe what that process should be, but I’m just curious about that relationship between Justice and Crown-Indigenous. Could you speak to that, please?
Ms. Sargent: I think the —
Mr. Pattee: Do you want to go first?
Ms. Sargent: There you go. We’ve been working very closely together.
Mr. Pattee: Daily, hourly, weekly, nightly.
Ms. Sargent: I take your point very seriously, senator, and the point generally about building trust. We have been working very closely with our colleagues in Crown-Indigenous Relations, and also with Natural Resources Canada. They are not here today but certainly have been a very significant part of the work that’s been going on.
Of course, what we really need to do is work with our Indigenous partners and rebuild relationships, build trust. It is a challenge for all of us. I know that the commitment is there, but we need to continue doing this hard work together. It’s been an honour and a privilege, frankly, to be part of the discussions to date.
I’ll just come back to this legislation as the government’s solemn commitment on the part of the entire government to continue doing that work going forward, informed by the declaration and its provisions, rights and principles. This is work that’s going to take sustained effort, and we will continue to do it with our colleagues across the government.
Mr. Pattee: I think it is about trust. For me, we really want to build on the work that led up to the introduction of the bill. We had hundreds of hours of sessions with partners from across the country. I think it’s a great foundation for us moving forward to working together on what the action plan should look like. As Laurie said, I’m honoured to be part of this process, and I think it’s a very exciting step forward for Canada and reconciliation.
Senator Coyle: Could you tell us what you might have learned through the initial engagement process that you will then take into this next phase of developing the action plan?
Mr. Pattee: For me, it’s the complexity of what we’re trying to address and the history of what we’re trying to address.
The Chair: I’m sorry, Mr. Pattee, time is up. I know some of the questions have been extremely interesting. You have the option, Mr. Pattee, and others who were answering questions when I cut you off, to submit written submissions to the clerk by May 30. I apologize for that.
I would like to turn now to Senator Stewart Olsen.
Senator Stewart Olsen: I’m a little concerned by some of the answers that I’ve heard you give regarding the consent and regarding jurisprudence in Canada. When you say this is evolving and that things may evolve and you’re contemplating in the future changing laws to come into line with the declaration, would those be laws for everyone or are you contemplating setting up a two-tier system where you have laws for one group and different laws for another group?
Ms. Sargent: I will begin by noting that this legislation is very much about the process of aligning laws over time. That is one of the obligations set out in the bill in clause 5.
What we’ve heard in conversations with British Columbia, among others, is the fact that this sets out an orderly and collaborative process for that work, which we have to recognize at the federal level is very much still needed in relation to Canada’s relationship with Indigenous peoples, and the fact that we have a number of laws still on the books that are out of date and, frankly, reflect our colonial past in a way that needs to be addressed.
Senator Stewart Olsen: I understand what you’re saying. I don’t mean to interrupt you, but I want to be clear on this. When you talk about aligning laws, what exactly are you talking about?
Ms. Sargent: One way we could think about it — although it’s not exactly the same or analogous — if you think about the Charter and when it came into effect in 1982, for example, there was a three-year period during which the government needed to review its legislation to ensure that equality rights for women, people with disabilities and others were respected. It’s that kind of work, where you’re looking to essentially crosscheck federal legislation as against the declaration and, of course, also the Constitution and section 35. This is a process that involves reviewing legislation that is on the books, but also upcoming legislation, to see whether it is, in fact, aligned with basic rights to self-determination and self-government as set out in the declaration and, of course, its other provisions as well. I hope that’s helpful.
Senator Stewart Olsen: It is. Thank you very much.
Senator Pate: Thank you to the witnesses.
During the April 22 House hearing on Bill C-15, INAC committee members discussed the importance of including government resource requirements as a part of the action plan in order to ensure accountability for the effective implementation of the UN declaration. What are your plans for ensuring Bill C-15 holds the government accountable for allocating appropriate and sufficient resources to ensure the implementation of the UN declaration?
In light of the minister’s comments about the symbiotic relationship between the UN declaration and section 35, I’m curious as to how you would see future jurisprudence conforming — and this picks up on the last question as well — to the UN declaration principles, and how will infringement justification under Sparrow affect the UN declaration enforcement with the symbiotic relationship in mind?
Mr. Pattee: I’ll take the first part of this question, and that will give Ms. Sargent time to think about the answer to the second part.
As we know, in the recent budget, over $30 million has been allocated toward consultation and engagement for the action plan. To me, that sends a strong signal of the commitment of the government to move forward and to ensure that a proper process is set up. I’m confident that those funds will be able to move this forward in a proper fashion.
Ms. Sargent: On the question with respect to section 35 and the symbiotic relationship, I would point to decisions of the courts over time with respect to Charter rights, among others, where the courts will look to international human rights treaties and declarations to inform their interpretation of the Charter. We would expect the same to occur with respect to section 35. It hasn’t happened all that often to date, but we could certainly see the courts increasingly doing so going forward.
The Attorney General of Canada is prepared to consider how those arguments would inform the government’s position and has done so already, for example, in the factum presented to the Supreme Court on Desautel, a case about cross-border movement recently decided by the Supreme Court. In the end, the court did not feel that it needed to look to the declaration in its interpretation, but it is always possible they could do so going forward.
Senator Forest-Niesing: I had a question on resource allocation, which you’ve already addressed, so let me ask you this: The Canadian federation, in all of its wonder, presents challenges, as we know, in more than one area. In this area, I expect and I know that you’ve engaged in conversations with provinces and territories about their intentions to move ahead, such as B.C. has done, with their own similar legislation adopting UNDRIP. As a result, we can expect a level of variation across the country. I’m wondering, first of all, what your expectations are, based on discussions you’ve had with respect to the variation, and what, if any, steps are you taking to limit that?
Ms. Sargent: Thank you for the question.
We have indeed had considerable discussions with provinces and territories over the past many months and recognize that they have all indicated a commitment to the declaration and its principles.
As you note, the Canadian federation does allow for and in fact fosters diversity of approaches across the country. This has been acknowledged in the preamble to this legislation, which acknowledges the role that provinces and territories will play, each in their own jurisdiction, with the ability to take measures to implement the declaration.
We embark on this knowing that the federal government needs to get its own house in order, and that that’s the focus of this legislation, and that we will be engaged in ongoing dialogues with provinces and territories with respect to the different ways in which they may approach implementation going forward.
The Chair: Unfortunately, this brings us to the end of our time today. I want to thank our witnesses from Crown-Indigenous Relations and Northern Affairs Canada, Ross Pattee and Marla Israel; and from Department of Justice Canada, Laurie Sargent, Sandra Leduc and Koren Marriott. As I mentioned before, for any follow-ups to any questions that I may have cut off, written answers to those questions can be submitted to the committee clerk no later than May 30.
For our next panel, we are pleased to welcome the following witnesses: from the Assembly of First Nations, Perry Bellegarde, National Chief; and Dr. Mary Ellen Turpel-Lafond; from the Inuit Tapiriit Kanatami, Natan Obed, President; and Tania Monaghan, Legal Advisor; from the Métis National Council, David Chartrand, Vice-President and National Spokesperson; Celeste McKay, Consultant; and Brandon MacLeod, Senior Policy Advisor.
Chief Bellegarde, Mr. Obed and Mr. Chartrand will provide opening remarks for approximately six minutes each, which will be followed by a question and answer session with senators, with approximately three minutes per senator. The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson. The second question will be asked by the critic of the bill, Senator Patterson. If other senators have questions, they are asked to use the raise hand feature on Zoom to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that APPA committee members will be given priority on the list of questioners.
Any written follow-up to questions can be submitted to the committee clerk no later than May 30, 2021.
The committee staff will advise the chair via text when there are 10 seconds of speaking time remaining, either of the witnesses’ introductory remarks or senators’ question and answer time. I will do a 10-second visual countdown, and when it reaches zero, I will advise that the time has been completed.
Now I would like to invite our first panellist, National Chief Perry Bellegarde, to begin his remarks.
Perry Bellegarde, National Chief, Assembly of First Nations: Thank you, senator.
Respected senators, Chairman Christmas and honourable committee members, I am pleased to speak with you today on behalf of the Assembly of First Nations.
The United Nations Declaration on the Rights of Indigenous Peoples was the product of more than two decades of in-depth, line-by-line, word-by-word deliberations at the United Nations with Indigenous peoples and member states. Canada was an active participant in this standard-setting process.
Almost 14 years have passed since the adoption of the declaration by the UN General Assembly. The declaration sets out the global minimum standards necessary for the survival, dignity and well-being of Indigenous peoples everywhere. Today, I am very pleased that Canada is finally within sight of adopting national implementation legislation to put this commitment into action.
Bill C-15 was inspired by former MP Romeo Saganash’s private member’s bill, Bill C-262. That bill was studied by this committee but was lost through procedural manœuvres despite passage in the House of Commons and strong support in the Senate. I urge every member of this committee and all members of the Senate to ensure that Bill C-15 is brought to a final vote and achieves Royal Assent before the end of this session of Parliament.
The Assembly of First Nations put forward a number of amendments while Bill C-15 was being studied in the House of Commons. Some of those amendments were accepted by the House committee; others were not. At this point, the AFN is not seeking any further amendments to the bill from this committee. The reason is simple: The clock is against us.
How will Bill C-15 benefit First Nations and their people, the holders of the treaty rights, inherent rights and title? In its current form, Bill C-15 requires Canada to bring about critically important law and policy reform and changes in operational practices that impact First Nations every day. This must include replacing Crown laws, policies and operational practices that deny rather than uphold First Nations rights.
You will note that the bill requires the laws of Canada to align with the rights and standards in the declaration. This, along with a statutory commitment to an action plan that is developed with Indigenous peoples, will help spark and sustain the transformative change that is urgently needed.
I respect that all senators take their responsibilities to review this bill very seriously. However, you cannot lose sight of the closing parliamentary window. We must not lose another opportunity for such crucial legislation to be passed into law. This bill has been before First Nations and Parliament for some time. First Nations across Canada examined Bill C-262 in our assemblies and strongly supported its passage. That bill was before Parliament for three years, only to die on the Order Paper without ever coming to a final vote in this chamber.
After this setback, the AFN Chiefs-in-Assembly adopted a formal resolution mandating and tasking the AFN with the responsibility to work toward the earliest possible introduction of government legislation to implement the UN declaration, legislation that would be consistent with the requirements of the UN declaration. It would need to be at least as strong as Bill C-262, which is the floor but not the ceiling. I say it’s time to move forward.
Bill C-15 establishes a requirement to implement the UN declaration through law reform and through the creation of an implementation plan. Bill C-15 does not diminish or take away rights from Indigenous peoples. It sets out a proactive and cooperative process to advance the implementation of fundamental human rights. So at this point, the most crucial step is to pass Bill C-15 into law so that this work can finally proceed.
I know that some of you may have concerns about the UN declaration’s provisions on free, prior and informed consent, but let me say this: Free, prior and informed consent is not new, and it is not unique to the UN declaration. Free, prior and informed consent is a foundational aspect of our treaty relationship. It is something that First Nations exercise each time we enter into agreements with other governments, with public institutions and with private corporations. But unfortunately, some have tried to use FPIC requirements as an excuse to encourage more delay in the implementation of Bill C-15 in Canada. We’re told that FPIC needs to be studied more. We’re told it creates uncertainty for industry and unrealistic expectations for First Nations involving rights and title.
The involving of rights and titleholders in decision-making processes with government and industry creates economic certainty and stability. Free, prior and informed consent is an essential aspect of our right to self-determination, a right that is already recognized in Canadian law.
Now, our First Nations are many and diverse, and naturally we don’t always agree on everything, but there is one thing on which there has always been complete agreement: Respect for our inherent right to self-determination is the necessary foundation for any engagement with other governments or industry.
I encourage the Senate to seize this opportunity and remind the members of the committee that if this chamber had brought Bill C-262 to a vote in 2019, the work on law reform and a national action plan would already be well under way. We cannot wait any longer. So the Senate has a choice to shape where we will be two years from now. Will we still be spinning our wheels, or will our first national implementation plan be within sight?
I urge you all to seize this historic opportunity and to play a key role in upholding and advancing the human rights of Indigenous peoples. Kinanaskomitinawow. Thank you all.
The Chair: Thank you, National Chief.
Natan Obed, President, Inuit Tapiriit Kanatami: I want to recognize all the senators here today and also my fellow national Indigenous leaders. It’s good to be before you again on this very important topic.
Inuit Tapiriit Kanatami represents the 65,000 Inuit that are represented through modern land claim agreements with the Nunatsiavut Inuit, Nunavik Inuit, Nunavut Inuit and Inuvialuit Inuit and their respective modern treaties or land claim agreements.
ITK passed a resolution recently supporting the passage of Bill C-15 but had also said that it could be improved even further through the addition of an Indigenous human rights commission. We put forward that requested amendment to the House of Commons standing committee, and I believe it is also within your package here today. It is meant to enhance the legislation, and it also answers the basic question of how we are going to enforce this legislation once it’s passed. In the text we have in the action plan considerations for recourse and remedy, so there are already considerations in the proposed text without the amendment about something like this Indigenous Human Rights Commission.
Basically, this legislation closes legislative and policy gaps that contribute to human rights violations against the Inuit, as well as prevent discrimination and provide recourse and remedy for human rights violations experienced by not only Inuit but First Nations and Métis in Canada. We have worked positively and constructively with the federal government on the development of Bill C-15 within a relatively short timeframe. I want to thank the Department of Justice and the Minister of Justice for ensuring that co-development happened within this particular piece of legislation and also for the government’s willingness to be flexible and consider amendments throughout the process.
For some time, we have wondered where Indigenous people stand within this country when it comes to reconciliation. The words are very strong sometimes from the federal government or from provinces or territories. This is a practical example of how we can move from the rhetoric of reconciliation to the unfinished business of upholding Indigenous people’s human rights in this country and complying with international law. It is not an easy process, but it is one that is necessary for us to ensure that the human rights of all Canadians are upheld in this country.
I will come back to my initial statement that this particular piece of legislation and Canada’s endorsement of UNDRIP in an international context closes a human rights gap that exists in this country for the protection of First Nations, Inuit and Métis and all Indigenous people’s rights within this country. We see this piece of federal legislation as a positive contribution to the approach of human rights being applied equally to all Canadian citizens. Nakurmiik.
The Chair: Thank you, President Obed.
David Chartrand, MNC Vice-President and National Spokesperson, Métis National Council: Let me start off by, of course, acknowledging your committee, but definitely I want to acknowledge my colleagues, the leaders of the First Nation and Inuit, of course, Perry Bellegarde, whose recognition will last for many more years to come. He is not running in politics again, but he’s definitely made change in this country, which I think we all need to appreciate. And also my friend Natan who continues to fight on behalf of the Inuit.
I sent a brief that I was going to read and I have changed my mind because mostly what I’m going to say is repetitive of what Perry and Natan have said. But let me say this: What are we really facing here today? What do we need to talk about? I don’t know how many of you actually know who the Métis Nation is. I’m not sure. I’m not going to second-guess. I know Patti knows who we are.
The Métis Nation actually is a Western-based people. What you see before me is beads that reflect the story of my people. If you want to know the Métis Nation and its history, we were once called the flower beadwork people. There are about 400,000 of us in Western Canada, so this declaration impacts 400,000 Métis citizens in the Prairies. It tells you the story of who we are. These pieces of art can only be found on the Prairies. In the Prairies, I can tell you who was wearing Ojibway beading, Sioux beading, the Plains Cree, the Northern Cree, just by the beadwork that they wear. That’s how we knew each other as a people.
Times are slowly changing in this county. Your institution is the place of second thought. It is a place that actually looks at it again one more time before Parliament makes decisions, no matter which political party sits there. I watched a movie the other day, and I wanted to speak on this for all those to reflect what we’re feeling right now in our homeland about this particular declaration which we support 100%. Our consultation was ratified by our people. They support this UN declaration wholeheartedly. I was watching a movie about Ruth Ginsburg when she actually went and pursued her legal career, where women were not accepted at Harvard. She challenged the issue and she did extremely well. She had to leave Harvard and go to Columbia. She did something great that impacted not only North America but the world. She looked at the legislation of discrimination that was taking place against women and she decided to take them on. She fought one legislation at a time. She began to change the mindset of the way things were typically run, the mindset of how things were done in the past and how they tried to maintain the way of the past.
Times are changing. The law is changing with us. We are going into a different spectrum of where Indigenous people fit in society and where Métis people, First Nation and Inuit fit in Confederation. That includes the economy, natural resources, environment, all of these aspects. When you look at what was achieved by one lady who became a Supreme Court judge later, it was changing the mindset of the way we think. It was telling us it was time for change. This United Nations declaration is telling Canada it’s time for you to do the right thing. It’s time for you to make that change, because if we are not the leaders as we say we are in the world, not just in North America but in the world, then we’re going to be playing second fiddle or third fiddle to somebody else to beat us to put legislation on something that’s as vital as recognizing the founders, the inhabitants of the Indigenous people. First Nations go back 10,000 years or more in this country. We go back maybe 400 years. Inuit go back thousands of years. This is our land. We’ve been left out, we’ve been pushed out and we fought our way through the courts to find our place in a parity situation. We’re getting there slowly, but this declaration changes the very foundation of how we go forward. How do we work with industry? How do we work with government? How do we truly become government to government, nation to nation and how do we adopt that?
You’re the place of second thought, the one that’s supposed to put the solid footing of where we should be as a country and the diversity of how we think. I’m asking you on behalf of the Métis Nation to help us get there. Fight for it. As Chief Bellegarde said, this is our third chance. We cannot miss this opportunity. We need to get this to Royal Assent. We need to show the world what Canada is, a place that everybody should dream of coming to. All minorities from all over the world should want to come to a place of fairness, equality and the benefit of people with parity.
One woman changed that in the United States, and I’m sure that with the amount of people that are in our politics today, the number of people in our Parliament as elected officials, the people appointed in the Senate today, if everybody said it’s time for Indigenous people to be treated with some dignity and some respect and some fairness and equality, it should pass quite easily.
Industry has been used to be a threat. It’s not a threat. I work with Enbridge and its president. Every two months he and I have a chat. We have a solid relationship, respecting each other and working together as partners, and we’ve done that with nearly every industry that we sat with. So when people try to fear monger that if this thing is passed we will kill economies, jobs and industry, it is so wrong. Completely wrong and completely false. In fact, it’s the opposite. All of you know that if a mine is going to be built, it’s not built in a day or a year. It’s probably a decade or more of investment and planning, so there’s so much time to get together. This will be in parity with section 35 of the Constitution. It will help achieve a duty to consult in this country. It will get us there faster, and everybody, stakeholders and investors, will know they can trust that relationship.
Nine or ten seconds are up, Mr. Chairman. Thank you for allowing me to speak, but let’s ask for change. You could make that change. All we need is you to support it. Thank you very much.
The Chair: Thank you, Mr. Chartrand.
I would like to open the floor for questions. The first question will go to the sponsor of the bill, Senator LaBoucane-Benson; followed by the critic of the bill, Senator Dennis Patterson.
Senator LaBoucane-Benson: I want to thank all of our esteemed leaders for being here today and for meeting with me earlier on this bill.
I wonder if I could ask a question of Ms. Turpel-Lafond. I am looking at a document from Treaty 6, 7 and 8, the association of treaty chiefs in Alberta. This was on March 16. There were two resolutions that I hope you could clarify for us. Number 10 was that Bill C-15 would ensure that Canada has territorial integrity over our territories despite our treaties, and number 13 says that Bill C-15 would be evidence of Canada’s ownership over territories and resources. Do you think you could clarify those for us?
Dr. Mary Ellen Turpel-Lafond, Assembly of First Nations: Thank you, senator. I appreciate that question. I’m familiar with those resolutions and some of the other resolutions passed by various First Nations organizations.
One of the reasons Bill C-15 is important is because we are dealing with a very significant time where work is happening within First Nations, and that work needs to be aided by the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. I don’t view this bill as a bill that strips away the rights of Indigenous people; I view it as a bill that affirms the rights, but there are debates inside First Nations, in particular about the proper role of who represents who, the continuing role of the Indian Act and the significance of strengthening the position of treaty First Nations. I think Bill C-15 will help us sort through those issues.
I certainly wouldn’t state a conclusion as bold as those conclusions. I think the issue was seen recently in the Supreme Court of Canada decision in Desautel where the Supreme Court said we need to reconcile the pre-existing sovereignty and rights of Indigenous people and First Nations, in particular, and the sacred nature of those treaties with our current situation of colonial laws. The declaration assists in that project.
Regarding the concerns that have been brought forward in various areas, treaty leaders are entitled to voice their opinions, and they will. I do feel that the legal conclusions in those resolutions are not supported by law, and I think Bill C-15 will provide a forum to actually sort some of those issues out properly in terms of the relationship between the Crown and First Nations.
Senator LaBoucane-Benson: Thank you very much.
Senator Patterson: Good afternoon, colleagues and national leaders.
Mr. Obed, in your brief to the House of Commons committee, you described the need for Indigenous rights to be enforceable. You also said just now that you see this legislation as closing legislative and policy gaps with respect to human rights. However, the ministers and officials have repeatedly stated that FPIC is contextual; that UNDRIP will continue to be used as an interpretive tool, as it already is being used; and he said this morning that it “does not replace the government’s decision-making authority.” He referred to that being the last word.
Is it your understanding that this bill accomplishes more than establishing an action plan for potential future legislative and policy changes, and do you feel comfortable that there is no deadline for making such changes and implementing them after the completion of the action plan? Thank you.
Mr. Obed: Thank you, senator. I’ll try my best to answer the first question, but I might need a little bit more help in understanding your second question.
In the legislation, there’s also the expressed need to harmonize and the intent to harmonize Canadian legislation consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and that exercise over time will not only happen through the creation of a specific action plan but it will require a number of different institutions to change in relation to particular harmonization that we’ll have to go through.
In the end, the United Nations declaration is an articulation of existing rights. They’re not new rights, and therefore the application of any particular provision within the United Nations declaration should be seen within that particular context.
If you take free, prior and informed consent and apply that concept to modern treaties or land claim agreements that Inuit have signed with the Crown, we now see particular co-management structures or other arrangements based on the provisions of those land claim agreements that are in keeping with free, prior and informed consent. So there are pathways forward on this particular issue, and there are already Indigenous peoples who have worked with government for these constructive arrangements to ensure that free, prior and informed consent is utilized.
As for your second question in regard to timing, can you please clarify?
Senator Patterson: There is no deadline for implementing the action plan. Do you have concerns about that?
Mr. Obed: I believe that every iteration of the action plan will be an evergreen process. Also, the reporting to Parliament is an annual process, so in relation to what is described in the act and the goodwill that we expect from the Government of Canada, I am confident we will be able to work constructively through those particular mechanisms.
Senator Patterson: Thank you. I am not sure if I have any more time, Mr. Chair.
The Chair: Barely.
Senator Patterson: About Mr. Lametti’s statement with regard to Canadian federal and provincial jurisprudence, they continue to be the last word in a number of different contexts —
The Chair: I’m sorry, Senator Patterson. I missed my mark here, so your time is up.
Senator Forest-Niesing: I will ask this first question of National Chief Bellegarde, but I will invite, if time allows, the others to contribute. I thank you all for being here and for your own valuable contributions to our consideration of this bill.
National Chief Bellegarde, you mentioned in your opening comments that the previous version of this bill, Bill C-262, was essentially the base, not the ceiling. I’m interested in hearing from you specifically with respect to your level of satisfaction with the current form of the bill with its amendments and whether there are any other amendments. As you mentioned, those you were advocating for were not all incorporated in the final version. Are there any of those outstanding concerns that cause you to hesitate with respect to the current form of the bill?
Mr. Bellegarde: Thank you, senator, for that question.
Again, as I indicated in my presentation earlier, I’m not seeking any further amendments. The window is too tight. The window is closing, and I don’t want to see any further amendments. I would encourage the Senate as well not to seek amendments.
We put 12 recommendations forward. Eight of them were agreed to at the Senate committee, and we’re pleased with that. “Racism” was included in the document, as were references to the doctrine of discovery and the doctrine of terra nullius, two very racist illegal doctrines, globally. We wanted a few stronger pieces in terms of the plural on No. 4, changing “purpose” to “purposes;” we requested the word “framework” instead of “implementation;” and we wanted the time frame to be changed from three years to two years. So we have made some movement in terms of the pieces we wanted to see addressed.
Again, just in light of the time, June is fast approaching. There are not a lot of sitting days. We just need to see Royal Assent on this legislation. Down the road, further amendments to this legislation can arise — down the road, once it’s passed. The fear is that if this does not pass this time, that it may not come back for four or five years. With a federal election coming, you never know when it will come back. That’s why we’re saying no amendments and urge the Senate to pass this as soon as possible.
Senator Forest-Niesing: Thank you. I’d love to hear from the other national representatives.
Mr. Chartrand: Again, I concur with what Chief Bellegarde has stated. We want no amendments, no pauses and no hesitation. We want this to pass. It’s our third chance at it. We don’t know what the future will give us. That’s why I gave my presentation about how change can be made by one person and what it has done for the rest of North America and the world.
Senator Coyle: Thank you to all of our guests for being with us and for all of your hard work in helping to shape Bill C-15. Welcome back to the Senate Aboriginal Peoples Committee. As you’re aware, this committee passed Bill C-262 two years ago.
My question is for Mr. Obed. I understand that you support Bill C-15. Could you please elaborate on ways the proposed Indigenous human rights commission would contribute to the implementation of UNDRIP in Canada? Could you also let us know about whether you have support from other Indigenous leaders for this and what the reaction has been from the government? Thank you.
Mr. Obed: Thank you for your question, senator.
ITK has been clear about its position on not only passing domestic legislation in regard to UNDRIP since 2017 but has also introduced and continued to push, as a clear position, the creation of an Indigenous human rights commission consistent with the UN Paris Principles as the most effective means for providing recourse and remedy to Indigenous peoples whose rights have been violated.
We’ve talked about this as an integral part of federal legislation being more than symbolic. Somehow, if human rights have been violated in this country, Indigenous peoples have not had access to many processes that have understood Indigenous people’s rights or have considered the necessary considerations for a fair processing and decision-making around those particular violations. We don’t have to look very far. The residential school era provides us plenty of context on how human rights commissions can exist in this country but Indigenous peoples’ human rights are not necessarily upheld within that particular federal, provincial and territorial legislative and policy context.
We have talked with First Nations and Métis leaders. As you heard from Chief Bellegarde, there’s been some consideration for this but also an understanding that, in the future, this might be something that could be seriously pursued.
Inuit Tapiriit Kanatami supports Bill C-15, but we’re trying to help the federal government do its job and follow through with its intent into specific, cohesive and practical implementation measures. We have tried to build this particular amendment so that it fits within the Canadian context of how human rights commissions function.
Senator Francis: Just for clarity, Mr. Obed, I’m not sure if I heard your answer before, but could you please confirm that ITK would support the passage of this bill without amendments?
In addition, I would like all three leaders to speak briefly about the degree of support from First Nation, Inuit and Métis rights holders that you represent for this bill. It hasn’t been achieved for nearly two decades. I can appreciate that unanimity is not always possible. However, there is a broad consensus that the passage of this bill would have a gradual but positive impact on the survival, dignity and well-being of your rights holders across Canada, and this is certainly critical to national reconciliation efforts.
Mr. Obed: Thank you for the question.
Inuit Tapiriit Kanatami does support the passage of Bill C-15 without amendment, but we do hope that everyone would feel that it is in the best interests of this particular piece of legislation to have the proper chance of success. With our proposed amendments, we feel that is possible.
Mr. Bellegarde: Senator, we have 634 First Nations. We have over 60-plus different nations or tribes by language. You don’t always get unanimity, as you said, but the vast majority do support it. You have 203 First Nations in British Columbia, for example, and there is now provincial legislation implementing the UN declaration at that level. There is support right across Canada for this.
As I indicated earlier on, the chief said to go and get a government bill that’s as strong as C-262 and build upon that. That’s the only mandate we were given. That’s what Bill C-15 represents, and it’s contained in the recommendations as well, in the TRC commission, to implement the human declaration, as well as the Missing and Murdered Indigenous Women and Girls recommendations. There is support for it, but I also recognize there are some who don’t agree with it either.
Mr. Chartrand: Thank you for the question, Senator Francis.
Clearly, without hesitation, we have one of the most democratic systems in our Métis governance that we’ve been practising for hundreds of years. It’s the same model we practise today. In our consultations and feedback from our citizens, without doubt, there is a clear majority from our leaders right across the homeland. It’s not a perfect document, and we know that, but we clearly know that the difference it will make not only for ourselves but for the country as a whole will only be a win-win for everyone. We will accept it as is, and we definitely have a clear majority of people. As Mr. Bellegarde and Mr. Obed said, there will always be dissenters, but that’s what we have democracies and governments for. From our perspective, we’re very clear that we support Bill C-15.
Senator Stewart Olsen: I would like to thank you all because you certainly gave a clearer presentation of your thoughts on the bill than we’ve had today from the ministers and bureaucrats.
I want to bring up one thing that was said when the officials briefed the official opposition on the bill. They were specifically asked about the action plan that the bill mandates. The official said, “In the final analysis, there’s no federal intent to seek consent before finalizing the action plan.” Today, we re-asked the officials. They were a bit less informative and did not comment yea or nay on what we had asked. When Senator Patterson asked a question and quoted the same official, Minister Lametti asked him what he meant by “consent.” So we don’t have the same understanding and the same confidence as you all do that this is actually going to happen. Have you actually been told what the federal view is, and do you agree with that interpretation and approach? That was for all three of you, but perhaps Chief Bellegarde would go first.
Mr. Bellegarde: Thank you, senator.
Again, we have a couple of bills that have already been done through co-development: Bill C-91, the language bill — the revitalization of that — and Bill C-92, child welfare. The national action plan is to be jointly developed. Once that is there in legislation, that’s the key. It’s legislated. You have to jointly work on this with the rights and title holders. That’s all I can say. We have to hold them to that. Right now, there’s nothing putting it to the government’s head. Once this legislation is passed, we have another arrow in our quiver to shoot if need be.
I’ll keep it short because I want my other colleagues to present as well.
Senator Stewart Olsen: Thank you very much. Mr. Chartrand?
Mr. Chartrand: Thank you, senator.
Clearly, from our position, whether or not the bureaucrats say there’s no guarantee that consent could be achieved before moving forward on initiatives in this country, what people are missing here is that when you have this process of free, prior and informed consent and this United Nations declaration, it actually sets the framework for a real discussion to take place with regard to bills that will affect either side. It gives you the opportunity to get rid of all of these unknowns.
What really challenges Indigenous people today, especially when you come into our territory and onto our lands, is that it’s imposed on us overnight. Someone says, “I’m opening a dam, a mine, or taking over the forest” or “All these hectares are mine now.” You never see discussion happening for at least a decade before they impose on us, but it should take a decade to make massive plans with the effects you are having. They’re talking about future nuclear sites in the Prairies. When you look at this concept, I think this consultation will not be a choice. Consent is something —
Senator Stewart Olsen: Can we just get the last — Mr. Obed, please.
Mr. Chartrand: Sure.
Mr. Obed: Thanks for the question.
The Chair: I’m sorry, Senator Stewart Olsen. Time is up.
Senator Stewart Olsen: Thank you, all, for that.
Senator MacDonald: My question is for the Assembly of First Nations.
There has been considerable concern raised about the consultation process by witnesses in the other place, such as the Congress of Aboriginal Peoples, the Confederacy of the Six Nations the File Hills Qu’Appelle Tribal Council and others.
The action plan development process, as we were told today, promises to be much more complex and involved because there is currently no agreement on basic terms like the definition of consent and there’s a need to look at multiple definitions considering the government’s claim that consent is contextual. There are over 630 band councils, over 60 traditional nations, all of the Métis people, four Inuit land claims organizations, as well as numerous women’s, grassroots and youth organizations. When you consider all of that, are you not raising impossible expectations in supporting a two-year time frame to complete the action plan?
Mr. Bellegarde: With great respect, senator, I’ll say no. When Bill C-15 passes, it’s legislated.
The two positive things that I tell people about are the law and policy review within Bill C-15. That’s very powerful. The comprehensive claims policy has to be updated, as well as specific claims policy, additions to reserve, the inherent right of self-government and the Indian Act, which has been here since 1876. All those things will need to get fixed and brought in line with the UN declaration.
For us, like I said before, this will be another arrow in our quiver that we can use to get these things fixed properly. There will be no more denial of rights, title and jurisdiction but actual application, implementation and enforcement of them.
On the duty to consult and accommodate, I want to ask for a quick response from our legal counsel Mary Ellen Turpel-Lafond to help clarify it as well. But that’s my thought on that. My thoughts on that are that we can get this done.
Dr. Turpel-Lafond: Yes, thank you.
Regarding the concerns about how the government is to go about engaging with Indigenous peoples on an action plan, there’s no question there is complexity and there’s diversity, but the government is engaging now. The importance of Bill C-15 is that there is a shift.
I can say from working on this matter in British Columbia, where the development of an action plan has been under way, that the two-year time frame is a reasonable one, but it does require the government to shift how it does business when working with First Nations, Métis and Inuit.
As National Chief Bellegarde said regarding the unilateral dictation of policies that are frequently thrown out by the Supreme Court because they weren’t done properly, this gives us a chance to do things better, to do them together, to co-develop policies and to work together respectfully. It’s not about transactions; it’s about relationships.
Senator Pate: Thank you to all of our leaders for being here.
Critics have expressed concerns surrounding subjecting the UN declaration to the Constitution while recognizing Aboriginal treaty rights and a concern that this would place stringent limitations on them. I’m speaking, in particular, to Chief Bellegarde. You’ve spoken positively of section 35, stating that it includes the inherent right to self-determination and self-government. How can language in Bill C-15 and the upcoming national action plan add clarity to the UN declaration and section 35 as separate legal processes? For example, how can the national action plan respond to issues surrounding the implications of Sparrow, for instance, on the UN declaration article implementation to ensure unfettered self-determination? If others want to comment as well, I’d be happy to hear their thoughts.
Mr. Bellegarde: Quickly, senator, the answer is the Desautel case. Section 35, we’ve always said, is a full box of rights, which includes the inherent right to self-government and self-determination. We don’t want to rely on the courts for another 25 to 30 years — because we always win anyway in the Supreme Court process — to fill that box up.
I’m going to ask Mary Ellen Turpel-Lafond, the constitutional lawyer and expert on this, to help us provide some clarity on your very good questions. I’m a bush lawyer, and she’s the constitutional lawyer. I’m going to ask her to give some quick answers.
Dr. Turpel-Lafond: Yes, thank you.
The idea that Bill C-15 in any way takes the United Nations declaration and makes it subject to a bad decision from 30 years ago or something is an error in how the law works.
Section 35 is a constitutionally protected provision, as this committee knows and as the senators are aware. The jurisprudence on section 35, including, as the national chief said, the recent, important decision in the Desautel case, states, again, that one of the purposes of section 35 is to address the fact that Indigenous people, and First Nations in particular, were here since time immemorial, that their rights have been protected, that the current First Nations are the successors and holders of those rights and that we need to reconcile all those ideas.
The UN declaration provides a tool to create a positive recognition-based space to talk about who the Indigenous governments are. It’s not about the Indian Act being imposed by the federal government. It’s about Indigenous people and First Nations selecting our governments and our leaders and engaging properly with the Government of Canada.
The idea that somehow this bill subjugates an international instrument to some kind of decision is an error. Section 35 is there. It’s moving and it’s flexible. We’ve seen that in the recent Desautel decision from the court.
Senator Pate: Would anybody else like to comment? Oh, we’re out of time. That’s fine.
Senator Hartling: Thank you very much for presenting today. I really appreciate your great presentations. I also thank you, Mr. Chartrand, for mentioning my favourite person Ruth Bader Ginsburg. That was a great example.
My question is, how do you think Bill C-15 practically and positively can affect Canadians? How will it change the future direction of Canada? If it goes through, what next? What future implications do you see? Anybody who would like to answer, please.
Mr. Obed: Thank you, senator, for the question.
This particular piece of legislation is very general. It has a number of key points that are essential to reconciliation and acknowledging, especially within the preamble, the context in which we go about doing this work, as well as some of the realities of the relationship between Canada as a nation state and First Nations, Inuit and Métis.
It attempts to harness the declaration and its intent within a UN context domestically. It ensures that the laws of Canada are consistent with the declaration, allows for the creation of an action plan that thinks about the 40-plus provisions within UNDRIP and how to move this country into a space where we recognize and implement the existing rights of Indigenous peoples of this country.
It will take some time, but I think the groundwork is there, and with goodwill this could be transformative, although the transformative nature of it isn’t necessarily in the specifics of each provision. It is in the overall scope of work.
Senator Hartling: Thank you.
Mr. Bellegarde: Very quickly as well, senator, the TRC called it the “framework for reconciliation.” As well, it will also help get rid of the systemic racism and discrimination, whether it be in the health care system, the justice-policing system or even in the educational system. So it will be a powerful tool once Bill C-15 is brought into Royal Assent. It’s a powerful tool to help build a better Canada for us all.
Senator Hartling: Thank you.
Mr. Chartrand: Thank you, senator, for that question. I think we have the same passion of seeing heroes. You look at that example of what change took place. This is the same philosophy behind if you look at all the concepts that are built within this declaration, dealing with education, culture and all the variables that are out there. The key to why I used Ginsburg this morning was it changes the mind of how we think. It changes the country and the leaders of that country to think differently. Again, at the end of the day, it’s very clear that if we change the mindset, we can change the future and we can change a better position for all of us.
The Chair: Thank you.
Senator Anderson: My question is for President Obed of ITK. I would like to know, did the Inuit discuss this bill in terms of land claim agreements or modern treaties? Is this bill seen to complement and support or challenge in any way the existing agreements and modern treaties? How do you see this bill working with existing land claim agreements and modern treaties or those that do not have signed modern treaties or are in the midst of the negotiations?
Mr. Obed: The Inuit Tapiriit Kanatami board of directors discussed this in a board meeting last month and did pass a resolution supporting the passing of Bill C-15 at the conclusion of that particular conversation.
Modern treaties or land claim agreements only cover a specific scope. The UN declaration is universal in scope in relation to the very specific nature of land claim agreements, so there was an opportunity that Inuit leaders see, especially in areas such as health care or education or culture and language, where the provisions in the UN declaration and then the adoption of the declaration domestically through this particular instrument would allow for a better way in which to implement our existing rights in those areas above and beyond the way in which we’ve been able to articulate and implement our rights through modern treaties. In no way did any land claim leader bring up the possibility that this particular piece of federal legislation could do anything to lessen the status of land claim agreements or the ability to implement these constitutionally protected measures.
Senator Tannas: I have two quick questions, the first for Dr. Turpel-Lafond, and then if Chief Bellegarde could answer the second one.
Minister Lametti was very clear on two things around FPIC. Number one, it’s not a veto. He said that specifically. Dr. Turpel-Lafond, is that your understanding and your position as well? I would like to get that on the record.
Second, for Chief Bellegarde, Mr. Lametti also went on to say that FPIC and, in particular, consent and also who provides consent, so that we don’t have the same issues that we had with Wet’suwet’en, will be clarified in the two-year implementation period, that that is one of the projects that needs to be done in order to make sure that everything runs smoothly thereafter. Is that your understanding as well?
Dr. Turpel-Lafond: Thank you very much for that question.
Article 19 on free, prior and informed consent really just affirms what has already been recognized in the law in Canada in the Haida case, which is that the consent of First Nations is needed, particularly when there are developments in the core territory of the nation. So it is context driven. But the obligations in Bill C-15 are on government. The idea that free, prior and informed consent would be a veto — it is not a veto. Obviously, government has authority to do things, but if government trammels on the rights of Indigenous peoples, we certainly don’t want that to happen. We need to get these things worked out properly for business and government. But if there are violations, government is government. Government has broad powers, and those powers are not being stripped away by Bill C-15. But the principle is a very important one.
On your second point, senator, about who gives the consent, Indigenous governments must give the consent, but the Indigenous governments must be the governments representing the rights and title holders. That will be very important to note, because when you mentioned Wet’suwet’en, about a concern there, I think it’s important to note that in the Wet’suwet’en matter the hereditary and elected leaders have been working together and working with Canada and British Columbia on governance and such matters. It’s just unwinding 140 years of colonial denial can be high conflict.
We need to adopt this bill so that we can have tools and approaches that are more affirmatory and that advance reconciliation so that the Crown has proper guidance from Bill C-15 so that engagements with Indigenous peoples would be respectful and based on the recognition of rights and recognition of who represents First Nations. And it’s the freely chosen representatives of the First Nations, which will include in many instances the hereditary chiefs, whose leadership was, of course, suppressed for years by colonial Canadian laws.
Mr. Bellegarde: She’s covered it.
The Chair: Thank you. Time is up. I wish to thank our panellists this afternoon, National Chief Perry Bellegarde and Dr. Mary Ellen Turpel-Lafond from the AFN; President Natan Obed and Tania Monaghan from the ITK; and Vice-President David Chartrand, Celeste McKay and Brandon MacLeod from the MNC.
For this next panel, I’m pleased to welcome Grand Chief Joel Abram from the Association of Iroquois and Allied Indians; Grand Chief Garrison Settee and Michael Anderson, UNDRIP advisor, from the Manitoba Keewatinowi Okimakanak; and from the Native Women’s Association of Canada, Adam Bond.
Grand Chief Abram, Grand Chief Settee and Mr. Bond will each provide opening remarks of approximately six minutes each, which will followed by a question-and-answer session with the senators with approximately three minutes per senator. The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson. The second question will be asked by the critic of the bill, Senator Patterson. If other senators have a question, they’re asked to use the raise hand feature on Zoom, which has already been exercised, to signal this to the clerk. This will be acknowledged in the Zoom chat. Please note that the APPA committee members will be given priority on the list of questioners.
Any written follow-ups to questions asked by the senators can be submitted to the committee clerk no later than May 30, 2021.
The committee staff will advise the chair via text when there are 10 seconds remaining for speaking time of both witness’s introductory remarks and senators’ question-and-answer time. The chair will do a 10-second visual countdown using my hands. When I reach zero, I will advise that the allotted time is finished.
I now invite Grand Chief Joel Abram for his first remarks.
Joel Abram, Grand Chief, Association of Iroquois and Allied Indians: Thank you for having me.
I’m the Grand Chief of the Association of Iroquois and Allied Indians. We’re an advocacy organization. We serve the seven First Nations of the Association of Iroquois and Allied Indians in and around southwestern Ontario. The members we serve are Batchewana First Nation in Sault Ste. Marie, Hiawatha First Nation near Peterborough, Oneida Nation near London, Delaware Nation near Chatham, the Wahta Mohawks north of Orillia, the Mohawks of the Bay of Quinte near Belleville, and also as far south as Caldwell First Nation near Leamington. We advocate on behalf of approximately 20,000 First Nation members.
Thank you, committee members, for hearing me today. I will first speak to our Indigenous perspective of the nation-to-nation relationship. Then I will speak about non-derogation clauses and why this non-derogation clause is so alarming in Bill C-15. I also have a document that I can leave with the committee that shares our important perspective on why we reject Bill C-15. I am, of course, happy to take questions afterwards.
First, on nation-to-nation, Canada must do much more to reflect a nation-to-nation relationship with Indigenous peoples. In 1763, the King of England made a broad assertion of sovereignty and — to be clear — this was not an assertion of sovereignty over Indigenous peoples. It was a declaration for the settlers and colonial governors who were residing in North America. It was a commitment that would be brought to self-governing Indigenous peoples at Niagara in 1764. This commitment has an historic reconciliation required to be recognized in the common law in its true form. An immunity against our internal self-determination, our right to self-government. You can easily see the commitment was lost by seeing the comparison of territorial governance and tribal sovereignty in the United States and that of the First Nations in Canada.
The commitment was solemnized at a council fire within Indigenous law. The Two Row Wampum, or Guswenta, is a memorial of the intersocial law that was made. Intersocietal or nation-to-nation rules of diplomacy and respect are early international law. We also believe our treaties include binding international law as recognized in 1975: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The right to self-determination is a long-ignored commitment, as far as back as our members from the Oneida Nation, the Lenape Nation in the 16th century in eastern North America, and the solemnized commitment made by the British king in 1764 at Niagara that included both the Anishinaabe and their kin, the Mississauga Nation, at the treaty council fire that summer.
This bill, Bill C-15, continues the obstacle course that was set since 1995 with the so-called Inherent Right to Self-Government policy. It’s not an inherent-rights approach; it’s a contingency approach of drawing down powers of a federal or provincial government. As far back as 1969, settler colonial governments have tried to domesticate our treaties and our treaty relationship. In 1969, another Trudeau tried outright to eradicate treaties.
The correct course would be to confirm that our laws, our inherent rights, should be sacred and to respect these early treaty relationships in what is now Canada. These rights are not subject to infringement and do not need to conform to settler colonialism.
Our members include First Nations that are beneficiaries of the Williams Treaties and the Robinson-Huron Treaties who were forced to launch litigation to stop the wilful neglect of the treaty relationships. Restoule v. Canada, involving Batchewana First Nation, explains the historic nation-to-nation relationship well in the excerpt:
The process by which the terms of the Royal Proclamation of 1763 . . . would be implemented reflected Crown recognition of Anishinaabe sovereignty that survived the unilateral declaration of Crown sovereignty. This called for negotiation of the terms on which the land would be opened up for settlement by newcomers.
Sections 5 and 6 of this bill should only be implemented within this nation-to-nation relationship. We reject the standard set in this bill that thumbs its nose at the nation-to-nation relationship granting full discretion of the Government of Canada.
Bill C-15 states in section 5:
The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
Section 6(1) states:
The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.
The Covenant Chain alliance and the Two Row Wampum are at the heart of the mutual respect, peace, friendship and non-interference principles that should guide our coexistence on this land. We reject a settler colonialism approach that interferes with our nation-to-nation relationship.
By unilaterally imposing the Canadian legal order over our nations, our communities and our territories, including through the legal fiction of the underlying title of the Crown on Indigenous land, Canada has violated its engagement and responsibilities under the Royal Proclamation of 1763 and the Treaty of Niagara, 1764. In order to protect the nation-to-nation relationship, we urge you to reject this bill.
The non-derogation clauses in section 2(2) of this bill: The main source of rejecting the UNDRIP Act is the wording of section 2(2) because this wording domesticates the UNDRIP commitment within the borders and confines of the Canadian common law. This is very similar to the accomplishment made at the 2016 effort to have the 10 principles act as a proxy for the UNDRIP, with the principles simply being a restatement of the Canadian law of limitations of section 35 rights. Upholding section 35 common law tests, which are onerous, expensive and decades-long processes in litigation alone, is completely contrary to the purpose of breathing new life into section 35. While certain customary law principles of UNDRIP are already applicable into Canadian law, the interpretation of section 35 rights by Canadian courts raises numerous problematic issues for Indigenous peoples, including the legal effect manufactured entirely by courts alone of the imposition of Crown sovereignty over Indigenous peoples, which is not only oppressive but is historically inaccurate.
Let me read section 2(2) first and emphasize our important concern which leads us to reject Bill C-15. Section 2(2) reads:
This act is to be construed as upholding the rights of Indigenous peoples recognized —
The Chair: I’m sorry, Grand Chief, your time has expired.
Garrison Settee, Grand Chief, Manitoba Keewatinowi Okimakanak: It is an honour to present before the Standing Senate Committee on Aboriginal Peoples.
Manitoba Keewatinowi Okimakanak, MKO, represents 26 First Nations in northern Manitoba and is comprised of at least 63,000 First Nations citizens. I am pleased to be able to share MKO’s views on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.
MKO’s approach to Bill C-15 is to answer the question being asked by many of our citizens: Is UNDRIP enforceable in Canada? The answer is no.
A further question asked by our citizens is this: Will Bill C-15 make UNDRIP enforceable in Canada? The answer is no.
The follow-up question being asked by many of our MKO citizens is this: Can Bill C-15 be amended to make UNDRIP enforceable in Canada? The answer is yes.
The objective of the amendments to Bill C-15 being proposed by MKO is to make the principles of UNDRIP enforceable in Canada. Recently, Chief David Monias of the Pimicikamak Cree Nation submitted a presentation entitled Making UNDRIP Enforceable in Canada. He argued that the central objective in making the principles of UNDRIP enforceable in Canada is to turn the legal and constitutional paradigm around 180 degrees by having mining, forestry and energy companies take Canada to court over actions taken by government to recognize, affirm and protect Indigenous rights, instead of the current and historic paradigm in which First Nations endlessly take Canada to court for failing to take actions to recognize, affirm and protect Indigenous rights.
The lessons learned about the practical enforcement of rights recognized and confirmed by section 35 of the Constitution Act, 1982 is that since 1982 Canada has done a very poor job in making administrative and judicial decisions to practically enforce the protections of rights recognized and affirmed by section 35 of the Constitution Act, 1982.
With the objective of making UNDRIP enforceable in Canada, MKO recommends amendments, including the following:
One: Bill C-15 to include a consequential amendment of the federal Interpretation Act to establish an enforceable UNDRIP affirmation clause.
Every act or regulation is to be interpreted and administered in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, and no act or regulation is to be interpreted or administered so as to abrogate or derogate from that declaration.
Two: Amend clause 4(a) of Bill C-15 by stating that the purpose of this act is to:
(a) affirm the declaration of the universal international human rights instrument and expression of binding principles and international treaty law and customary international law with application in Canadian law as both a source of interpretation and source of law.
Three: Amend clause 2 of Bill C-15 by replacing the present non-derogation clause to reflect the language of the proposed consequential amendment to the Interpretation Act.
This act is to be interpreted and administered as protecting the Aboriginal or treaty rights of the Indigenous people of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982 and not as abrogating and derogating from them.
Four: Amend Bill C-15 by including the following clause:
This act is to be interpreted and administered as upholding the rights of Indigenous peoples as proclaimed in the declaration, and nothing in this act is to be interpreted or administered so to diminish, abrogate or derogate from those rights.
Five: Taking into account section 17 of the Interpretation Act, amend Bill C-15 to ensure the Crown is bound by the amended Bill C-15 and the requirements to enforce the principles of UNDRIP in Canada.
The Crown is bound by this act or this act is binding on Her Majesty in right of Canada.
Six: Include in Bill C-15 a consequential amendment of the federal Interpretation Act to include a universal non-derogation clause similar in structure to the recommended UNDRIP affirmation clause.
Every act and regulation is to be interpreted and administered as protecting the Aboriginal treaty rights of the Indigenous people of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
Seven: To include in the substantive provisions of Bill C-15 the intent of the whereas provision of Bill C-15 regarding the doctrines of discovery and terra nullius by including in Bill C-15 a consequential amendment to the federal Interpretation Act to state:
The doctrine of discovery and the doctrine of terra nullius do not form part of the statutory or common law of Canada.
Mr. Anderson and I would be pleased to answer any questions of the committee. Thank you, meegwetch, mashi’cho.
The Chair: Thank you very much, Grand Chief Settee.
Adam Bond, Manager, Legal Services, Native Women’s Association of Canada: Good afternoon, everyone. Due to technical difficulties, I will be delivering the opening remarks on behalf of Lynne Groulx, Chief Executive Director of the Native Women’s Association of Canada.
I would like to thank the members of the Standing Senate Committee on Aboriginal Peoples for extending an invitation to the Native Women’s Association of Canada to appear to present our position on Bill C-15 today. My name Adam Bond, and I am the manager of Legal Services at NWAC, which is the largest national Indigenous organization representing First Nation, Métis, Inuit girls, gender diverse people and women.
NWAC is a voice of grassroots Indigenous women. The male-led Indigenous organizations do not approach issues from the same perspective. That is why it’s so important that we are at national tables when topics that affect our members are being discussed. Thus, we are very grateful to this committee for inviting us here today. In relation to Bill C-15, we have the following comments to share with you.
As it is generally understood, UNDRIP does not create any new rights; rather, it codifies existing rights under international law as they apply to Indigenous people. Importantly, it includes provisions that are specific to the rights of Indigenous women. There are different concerns about Bill C-15 from a wide diversity of individuals and organizations. However, it is very important that we keep in mind what this bill means for Indigenous women and why the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls have called for the immediate implementation of the declaration in Canada.
Indigenous women and girls face a persistent epidemic of violence in this country. They are targeted because they are marginalized. They have suffered and continue to suffer the worst effects of colonization, discrimination and hate. They are denied equality and equal opportunity, and they are economically marginalized. They are strong, but they are made vulnerable by the overt and systemic discrimination that they face every day.
Bill C-15 recognizes UNDRIP as a universal human rights instrument in Canada and creates a statutory mandate that the Government of Canada must develop and implement an action plan for the implementation of the declaration. The declaration itself recognizes several important rights of Indigenous women and girls, from equality with men to the right to be free from violence and the right to improvements of their socio-economic circumstances. These rights are consistent with the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and Canada’s obligations under international law. Importantly, Bill C-15 includes requirements that the declaration must be implemented, including through the development of an action plan that must include measures to eliminate all forms of violence and discrimination against Indigenous women.
NWAC would like to work closely with the Government of Canada and other levels of government in the implementation of Bill C-15. We need to ensure that Indigenous peoples are properly consulted in the implementation of the declaration, and we have to communicate effectively to assuage fears of differently interested groups, but these concerns must not outweigh the rights and interests of Indigenous peoples. The implementation of Bill C-15 could make significant strides towards reconciliation. However, without meaningful accountability for the implementation of UNDRIP in practice, the bill could easily be transformed into a facade for inaction. Not only should the action plan be made public and tabled in Parliament as soon as it’s prepared, but annual progress reports on the preparation and implementation of the action plan must also be made public.
This is important. We need more than words; we need action. We know now more than at any other time in recent history that great challenges demand great resolve and determination. We know that in times of urgency, we can take the action that is necessary to protect the most vulnerable in society. We know that this can be done, so why must it take so long to mobilize the great resolve and determination that ending the epidemic of violence against Indigenous women and girls requires?
Bill C-15, like every piece of legislation, is not perfect. In this case, however, perfection is not simply the enemy of the good. Demanding perfection of Bill C-15 operates directly against the rights and interests of Indigenous women and girls, who have every right to be free from violence and discrimination as non-Indigenous peoples.
We appreciate the important work that this committee is undertaking in studying this bill, and we hope that this work will contribute to the expedient passage of the proposed legislation through Parliament.
To conclude, it merits repeating that Bill C-15 remains a welcome first step in anchoring UNDRIP in law in Canada. In addition, it will contribute to reconciliation in this country and may well become an example of best practices for other countries. It is, after all, not by accident that the Truth and Reconciliation Commission made references to UNDRIP 21 times in its Calls to Action, while the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls also urged Canada to implement and fully comply with the relevant rights instruments, including UNDRIP.
Thank you for your time. I look forward to responding to any questions.
The Chair: Thank you very much, Mr. Bond.
I would like to open the meeting for questions. The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson, to be followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: Mr. Bond, are you able to answer questions on behalf of the Native Women’s Association of Canada, or should I maybe find another way to ask questions of the Chief Executive Officer?
Mr. Bond: I can answer any technical or legal questions about the bill on behalf of NWAC, yes.
Senator LaBoucane-Benson: I was going to ask more about consultation. Maybe I will try to catch up with her at another time, but I think this question could work quite well for Chief Abram.
In articles or interviews of you — I think even in one that you wrote — you talked about not being consulted in the Bill C-15 process. I wonder if you are going to participate in the consultation process towards the action plan, and if you are, how would you like to be consulted? If we were going to give the House of Commons advice on how to properly consult, what would that look like?
Mr. Abram: I can’t say for certain if we are going to take part in future consultations simply because the position of our member nations is that consultation and engagement should have happened on a nation-to-nation basis from the get-go. The Government of Canada has signed a memorandum with the Assembly of First Nations about upholding the nation-to-nation relationship. The AFN is not a national government and so you have to talk to the First Nations governments. In Ontario, we were really only given a few weeks to be engaged on this bill, and because they were only engaging with so many parties, we declined to take part in that. I don’t think anybody in Ontario was engaged on this particular legislation simply because we thought that the engagement process should be much stronger than it was. Since this bill does impact the rights holders, which are the people themselves, then we need proper time to engage with those people themselves so they can tell us what their thoughts are on this.
Senator LaBoucane-Benson: Thank you.
Senator Patterson: Thank you, panellists.
This morning, Minister Lametti stated that consultation is defined as meaningful dialogue as the basis for consultation and that it is sometimes about having an impact but not all the time. He further stated that with regard to Canadian, federal and provincial jurisprudence — case law — they continue to be the last word in a number of different contexts. I’d like to ask the panellists if they agree with the interpretation and approach that has been given by the Minister of Justice. I’d like to ask each of them, if they’re willing to answer. Thank you.
Mr. Bond: I’ll take a swing at it. It’s far more complicated than that about who the final decision maker is. The reality is that recognition of people’s rights to self-determination includes the right to give or withhold free, prior and informed consent. When you apply that right in the context of cooperative federalism in the Canadian legal system, it’s rather complicated. The ultimate requirement is that the government has to obtain free, prior and informed consent before making any decisions that will have adverse impacts on Indigenous peoples. However, the reality in the Canadian legal system and cooperative federalism is that if the government decides to make a decision that conflicts with that right, there will be an obligation on them in judicial proceedings, if they’re brought, to justify that. The question is what impact Bill C-15 has on the legal test for justification in these cases.
Mr. Abram: Our view runs along the lines of the Guswenta, the Two Row Wampum. I don’t know if you’ve ever seen it. It’s a white wampum belt with two purple lines going down it, each line indicating the Crown in their boat and the First Nations in their canoe travelling down the river of life together.
Senator Patterson: Yes.
Mr. Abram: To assume that Canadian jurisprudence has priority over First Nation nation-to-nation relationship falls back again on doctrines of superiority, and so we reject that notion.
Senator Patterson: Thank you.
Senator Francis: I have two questions. The first is for the Manitoba Keewatinowi Okimakanak. In essential respects, Bill C-15 is the same as Bill C-262. I understand you were supportive of Bill C-262 but not Bill C-15, and I’m just wondering if you could briefly explain why and what, maybe, has changed.
The second question is for all witnesses. This bill may proceed to become law before Parliament rises for the summer. Should that happen, have you and your members considered how the process of designing and implementing an action plan may assist in advancing the long-term survival, dignity and well-being of your specific rights holders, and are there any current laws and policies you would like to see reformed?
Mr. Settee: I will defer the answer to Michael Anderson, please.
Michael Anderson, UNDRIP Advisor, Manitoba Keewatinowi Okimakanak: Thank you very much for the question.
What we’ve had, of course, is an opportunity to further consider how the legislation would be formed after looking at Bill C-262. We also have the work that we’ve done subsequently on implementation of the section 35 rights — those types of implementation of government rights.
We see Bill C-15 as being instructive or directive of government, and with respect to Minister Lametti’s comments about the courts having the last say, in respect of those things that give instruction to the Crown, the courts step in where there’s a vacuum and where the Crown has provided a legislative framework to guide its actions. The amendments that we recommend are intended to make the principles of UNDRIP read into the practical administration of federal law and so not directive to First Nations but to government. We see that the will of Parliament is important in directing the Crown to make a practical decision-making consideration of the principles of UNDRIP, which, of course, many speakers have already mentioned are already being incorporated practically into recognized international customary law.
Senator Francis: Does anyone want to take a crack at the second question?
Mr. Abram: I would be willing. I think one of the first things you have to tackle is section 35. That’s an issue that has not been properly addressed since 1982. In 1982, when the Constitution was ratified, there were supposed to be constitutional conferences with First Nations people about what that meant. As you heard from other presenters, the First Nations view that’s a full box of rights, and Canada’s view was that it was an empty box of rights to be either negotiated or litigated.
Since that time, there have been two meetings after which they couldn’t come to an agreement. Canada walked away from the table, and that question has remained unresolved ever since. Some of the impacts of that decision have been that some decisions — even positive decisions — have some undertones of racism to them, such as the Van der Peet and Sparrow decisions, which set very high bars for how Indigenous rights are to be recognized under section 35. We need to go right back to that section 35 and talk about what that —
The Chair: Thank you, Grand Chief. The time has expired.
Senator Coyle: Thank you to our guests for your testimony today.
Senator Francis already asked one of the questions I wanted to ask. However, I’m curious. Grand Chief Settee, let’s just say the changes — the amendments — that you’re looking for in the bill aren’t made. Would you advise us to still support this bill? I’d like to hear that.
I have a second question for both Grand Chief Abram and Grand Chief Settee. We hear from the Canadian Native Women’s Association that they want this bill passed. How does that reconcile with the women in your communities? Is there anything you could speak to on that?
Mr. Settee: We’re very considerate of the women’s voices in our First Nations and we take guidance from their voices. We want to make sure that we represent them to the degree that it warrants because they’re important in our culture.
Another thing, one of the things that we want to do is ensure that Canada upholds the Constitution. As previously mentioned, this should not be an empty box of rights. We want to make sure that those rights are respected, and for a long time they have been abandoned. It’s time that we reinforce the Constitution and the legitimacy to the rights that we have.
Senator Coyle: Would you see that this bill, without the amendments as proposed, is worthy of passage? Is it better than not having this bill?
Mr. Settee: I would agree that it’s better than not having it.
Mr. Abram: Would you like a response from me?
Senator Coyle: Yes, please.
Mr. Abram: Thank you. Our member nations uphold the nation-to-nation relationship. So I know, especially in our Iroquois communities, they cannot speak for all our communities, and their chiefs are the same. Many of our chiefs are women within the association, and they advocate for that nation-to-nation relationship to be respected. So if the bill does pass, I expect that we would ask for amendments to respect that nation-to-nation relationship and our rights-holder based process of implementing it.
Senator Coyle: Thank you.
Senator Forest-Niesing: My question has to some extent already been asked. I’m going to rephrase it and put it to you nonetheless.
Having regard to the amendments that were made by the House committee that studied this, more specifically, the preamble and clause 6 that were amended to refer to combatting prejudice, violence, racism, systemic discrimination and identifies the doctrines of discovery and terra nullius as racist, and then the further amendment to the preamble to indicate that Aboriginal and treaty rights are capable of evolution and growth, my question is to both grand chiefs. Having listened very carefully to your respective positions, in your view, are those amendments bringing us closer to an acceptable form of this bill? Is it your position that you are better off without it?
Mr. Settee: I think that my initial response is that Canada has continued to perpetuate concepts and legislation that undermine who we are and also promote the doctrine of discovery. I think this is a first step further to eliminate that ideology. I think it’s been a long time coming. It’s not perfect, but I think it’s a step forward. So we’ll continue to discuss this, and hopefully that will change and eliminate that concept.
Mr. Abram: I have an answer that’s sort of multi-fold. First of all, we rejected it because of the lack of engagement with the rights holders themselves. So we’d rather see a restart to the whole process, frankly. It took 20 plus years to get UNDRIP at the United Nations, and to expect to get passage on a bill that everyone can agree on within less than six months and envisions the First Nations is kind of a tough stretch to ask for.
We have to remember the whole idea of UNDRIP was to address the impacts of colonialization and oppression on Indigenous peoples and to protect the rights that they have so far. To say that the rights that we do have will be decided by a court of our oppressors is something else to think about. One thing I learned is that having our rights contested in the courts by someone who has colonialized you is also a form of discrimination.
I think I’d rather see a whole reset to the process where we concentrate on the rights holders.
Senator Stewart Olsen: Many of my questions have been answered as well.
There is one thing. In an op-ed in The Hill Times, the eastern regional elder, Alma Brooks of NWAC, stated that the current distinctions-based approach to policy and legislative changes leaves Indigenous women with nothing but a mainstream alternative that doesn’t work for them. She went on to contend the groups have been relegated to special-interest group status and are not equally recognized as rights holders. In fact, she asserts they’ve been left without a seat at the big boys’ table.
Earlier today, officials said they had begun discussing the action plan development process with key players and said those discussions may be expanded later to include women’s groups or youth groups.
Do I understand correctly that NWAC oftentimes feels like an afterthought? I guess that would be for Mr. Bond.
Mr. Bond: It is a constant struggle. The reality is that Indigenous women face colonialization and issues in a different way than Indigenous men do often, because of the intersection of gender and race. This increased vulnerability means that the rights of Indigenous women to equally participate in decision-making and consultations is particularly important because, when we are left without a seat at the table, the issues that are particularly important to Indigenous women, girls and gender-diverse people are often not raised and therefore aren’t addressed. So, of course, our biggest concern with this bill is the sincerity with which the government will consult with us and include NWAC in these processes, but that’s a process and an issue that we’re looking forward to. This is a constant challenge for us and it is a struggle, but we will address that as we move forward, as we always do, and we are always rather successful at bending the government and forcing our way to the table.
The important thing today, before this committee, is the importance of this bill, of this legislation and what this will do through a three-pronged approach for Indigenous women. This bill, Bill C-15, implements UNDRIP in three separate ways. I’m sure everybody is aware of this. First, it makes the declaration a document that can be used for the interpretation of Canadian legislation by the courts immediately under the principle of conformity. Second, it creates legislative mandates for the Government of Canada to consult to address legislative problems and to create an action plan, which are all very important, a three-pronged approach. We will address the consultations as we move forward as we always do.
Senator Stewart Olsen: Thank you for that.
Senator Pate: Thank you to the witnesses for appearing.
My question is also for the Native Women’s Association of Canada. The Honourable Carolyn Bennett spoke about the co-development of Bill C-15. You’ve just spoken about the lack of consultation. I’m curious about how you see the Canadian government could move forward to strengthen its co-development approach to better engage and capture the priorities of Indigenous women, girls, two-spirit and non-gender binary people in the action plan for Bill C-15 and, in particular, to improve the gender-based focus and analyses that have been undertaken.
Mr. Bond: I will do my best. This is a little over my position for recommendations for certain procedures for consultations moving forward.
Generally, we need recognition from the Government of Canada that they must consult with us on any of these matters that affect our members. There seems to be a disconnect between the stated policy of the federal government in terms of importance of gender-based analysis and the recognition of intersectionality versus their actual engagement with the Native Women’s Association of Canada. We need that to be corrected. We need the federal government to recognize that the participation of the Native Women’s Association of Canada in these processes contributes to better action plans, better programs and better legislation, and the failure to include us in these processes results in discrimination and the violation of Indigenous women’s rights.
Senator MacDonald: I thank the witnesses for being here today.
The AFN gave a presentation earlier, but I didn’t have an opportunity to ask my supplementary question. I’ll now ask all of you my supplementary question.
In an interview with APTN, Marlene Poitras, Regional Chief of the AFN in Alberta, says the AFN shouldn’t be negotiating Bill C-15. This is what she says:
The AFN is a lobby group. We are there to facilitate the direction as provided by the chiefs in assembly, and that’s our role. It’s not to negotiate and make decisions on behalf of First Nations. It’s the Nations that do that, not the Assembly of First Nations as an assembly.
Given this assertion by the regional chief, and listening to your frustrations, do you feel that the AFN can speak on behalf of individual nations in such a complex process and within such a compressed time frame?
Mr. Settee: In my role as grand chief, I take my mandate from the chiefs. When the chiefs give you a mandate, you have to act on that. If they do not give me that mandate, I cannot neither act nor speak on anything that is being presented. I’m accountable to the chiefs and to the First Nations. I have to respect the autonomy and sovereignty of each First Nation. I take my direction from them and then I act.
Mr. Abram: I would offer a similar sentiment to that of Grand Chief Settee. Like AFN, AIAI is also not a representative or advocacy organization. I get my marching orders from my chiefs and councils, who are the respective elected chiefs of their First Nations.
As well, the AFN did have a prior resolution as to the minimum standards of any future UNDRIP bill, that they might support it. This bill does not meet those requirements, and yet they still support it, so I don’t understand that portion.
I agree that they are not our government, nor are they representative; they are advocacy only.
Senator McCallum: First, I want to address the grand chief. [Senator McCallum spoke in her Native language].
Mr. Settee: [Mr. Settee spoke in his Native language.]
Senator McCallum: It’s very good to see Adam Bond again. We did great work together with gender-based issues with Impact 69, and you were a great help.
I have two questions. If you’re not able to answer them within the limited time we have, I would appreciate a response in writing. For the grand chief, I first want to ask you this: Would MKO be able to put these amendments you have made into the framework if they didn’t pass in the Senate? Second, would you be able to opt out of this framework and form your own, through your own legal traditions? I attended the assembly when the chiefs gathered last month, and one of the chiefs had said, “We don’t need UNDRIP. We can proceed on our own.” I don’t know if you can respond to that or if you need to go back to the chiefs.
Mr. Settee: This is something that we will bring to the assembly. No doubt, if the amendments are not made, we will have to continue to pursue avenues to ensure that the rights of our people are continually protected. We’ve been pushing for and welcoming the enactment of UNDRIP; however, if it misses the mark of what we perceive should be done constitutionally, then we’ll have to continue to push. Yes, there is always the option of opening it from a sovereign perspective.
Senator McCallum: Thank you.
Adam, Articles 22 and 44 recognize the rights and needs of Indigenous women and require the state to take necessary steps to protect women and girls against violence and discrimination. As we know, there are multiple forms of discrimination, including lack of access to education, health care and ancestral lands, as well as disproportionately high rates of poverty and subjection to violence, such as domestic violence. Will implementation of the declaration improve the human rights situation for Indigenous women and girls in Canada when these multiple forms of discrimination have always existed, yet no progress has been made to date, despite all the inquiries and recommendations? In fact, their vulnerability continues to increase.
Mr. Bond: Yes, I think that implementation of this bill will definitely further progress in that regard because it sets out a framework and action plan to address those issues, in addition to the benefit of making it an interpretative instrument for judicial proceedings.
The Chair: Thank you very much. As Senator McCallum mentioned, you are more than welcome to provide written submissions to the questions that were asked.
Senator LaBoucane-Benson: I would be happy to pass to give others more time to ask questions.
The Chair: Thank you, senator.
Senator Patterson: My question is to Grand Chief Abram.
The association stated in a press release on April 1, 2021:
Many Nations do not have an issue with UNDRIP but many take issue with Canada’s version of UNDRIP as their process of implementation has been flawed from the start.
The government, however, maintains that they have consulted and point out that they continue to engage with rights holders as this bill moves through the legislative process. In parallel to that, though, we continue to hear that this bill must pass by the end of June.
I wonder if this fits in with the “free” or “prior” part of “free, prior and informed consent.” Is it — maybe I’ll use the word “insulting” — to be brought into a conversation when the bill is already so close to the finish line?
Mr. Abram: We did ask multiple times for the process to be restarted so that the actual rights holders may be engaged on the subject. You’re right; it does talk about that.
We’ve wondered why Canada needs legislation to do the right thing. They already adopted UNDRIP. I think the legislation would be much more impactful if they went against the doctrine of discovery and doctrine of terra nullius and tried to remove those from existing laws, legislation and policies. We think that a lot would be accomplished in this way, and to use the UNDRIP as a guiding mechanism.
I don’t know one rights holder in Ontario that has been engaged in this particular legislation.
Senator Patterson: Thank you.
AIAI also stated that engagement sessions were cut short and under-resourced. Can you quickly tell us how those engagement sessions were structured? Was that a good-faith exercise to get your feedback?
Mr. Abram: No. Our experience was that we were given a very short period to sign up for what they termed an engagement Zoom, I guess you could say, and they were engaging a lot of nations. They were engaging the regional organization, Chiefs of Ontario, as well as PTOs such as AIAI and others, when those are not the rights holders. The rights holders are the First Nations themselves. Then, through them, there are citizens and members. I can guarantee you that has not been done.
Senator Patterson: Thank you.
Senator Forest-Niesing: Just to follow up on that, did I not hear you say, Grand Chief Abram, that you had not engaged by choice and that you had been given an opportunity to but found that there was a time constraint that prevented you from participating or where you exercised a choice not to participate?
Mr. Abram: Yes, we chose not to participate in the process that was laid out for us. We asked for a broader consultation process and engagement process that would allow First Nations to consult with their members about where they would like to see this legislation go with respect to their Indigenous rights. That was denied by them.
Senator McCallum: This question is for the grand chiefs. The speedy process of this bill is a form of coercion and does not follow a nation-to-nation relationship. This happened with Bill C-91 and Bill C-92, where one of them went from the House of Commons to Senate and back in one month. It didn’t even hit the Order Paper. My worry is that because they involve Indigenous issues, these bills are not considered as important as other bills. My question is: Will you be putting forward a request to hold off on this process while you go back and meet with the people, the chiefs, so that there is a true and meaningful contribution by the chiefs? The second question: Would a distinctions-based approach to this bill allow more clarity as all the three groups — Métis, First Nations, Inuit — all have distinct benefits and different histories? Thank you.
Mr. Abram: If I can take a crack at this one, we did already send correspondence shortly after we declined to participate in the limited engagements that were available to us, speaking with the minister in charge directly as well. I think that we have already done that, to the Prime Minister, the Minister of Indian Affairs and also to the Minister of the Attorney General as well. We’ve already sent that correspondence requesting that. We didn’t receive any reply back to that. So that’s a definite yes to that question, we have already sent that.
What was your second question, senator? I’m sorry.
Senator McCallum: Would a bill that was separated into three groups and distinction-based — one for Métis, one for First Nations, one for Inuit — be a better way to approach UNDRIP?
Mr. Abram: I think so. That would be helpful. “Indigenous” is such a broad term. Having a pan-Aboriginal approach is not always helpful. Having one mould that is for everybody, that doesn’t actually work.
If I could be allowed, I heard the term “co-development” as well. In my head, co-development means before you release something to the public, you both agree on a final product. In cases of past legislation where co-development is mentioned, that has not been the case.
Mr. Settee: I want to respond just briefly. MKO gave outlines of our recommendations to the federal Justice department during the consultations last fall, so our position has been made known.
As for distinctions-based, I think that we continue to be compartmentalized. I would like to see the unity and uniformity as opposed to being segregated again. But that’s just my opinion. That’s how I feel.
Senator McCallum: Good to know. Thank you.
The Chair: Thank you, senators and grand chiefs. I think that exhausts all the questions. That concludes our committee meeting. We wish to thank our witnesses. I wish to thank Grand Chief Joel Abram from AIAI; Grand Chief Garrison Settee and Michael Anderson from MKO; and Mr. Adam Bond from NWAC.
(The committee adjourned.)